EXHIBIT 10.100
CDMA WAP (Phase IV) Equipment and Service Purchase Agreement
Contract No.: CUIEC-04CIN1407
Place of Signing: Beijing, China
1
Article 1 Objectives of Contract, Statement and Warranties.......4
Article 2 Definition.............................................5
Article 3 Subject Matter, Contents and Scope of this Contract....7
Article 4 Purchase Price.........................................7
Article 5 Payment and Payment Terms..............................9
Article 6 Delivery and its Terms................................12
Article 7 Packing, Marking, Transportation and Insurance........13
Article 8 Standards and Commodity Inspection....................14
Article 9 Installation, Testing (Preliminary Acceptance
Test), Trial Run And Final Acceptance Test............15
Article 10 Technical Assurance And Warranty......................18
Article 11 Spare Parts...........................................21
Article 12 Additional Order and Capacity Expansion...............22
Article 13 Claims................................................22
Article 14 Force Majeure.........................................24
Article 15 Arbitration...........................................24
Article 16 Notice................................................25
Article 17 Assignment............................................25
Article 18 Confidentiality, Use of Information, Intellectual
Property Right and Patent.............................25
Article 19 Trademark.............................................28
Article 20 Modification..........................................28
Article 21 Miscellaneous Terms...................................28
Article 22 Interface Requirements................................29
Article 23 Tax...................................................29
Article 24 Governing Law.........................................29
Article 25 Y2K Warranty..........................................29
Article 26 Contents and Term of Contract.........................30
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APPENDIX 1 TECHNICAL CONFIGURATION AND SUGGESTIONS
APPENDIX 2 TABLE OF EQUIPMENT PRICES
APAPENIX 3 EQUIPMENT AND SERVICE LIST
APPENDIX 4 SCHEDULE OF PROJECT PROGRESS
APPENDIX 5 TRAINING (INCLUDING INTRODUCTION TO TRAINING COURSES AND THE
COVERAGE OF TRAINING FEES)
APPENDIX 6 PROCEDURES AND STANDARDS FOR PRELIMINARY AND FINAL ACCPETANCE
TESTS
APPENDIX 7 ENGINEERING INTERFACE
APPENDIX 8 INFORMATION OF EQUIPMENT AND TECHNOLOGY (INCLUDING THE DESCRIPTION
OF PERFORMANCE), SYSTEM MAINTENANCE, REPAIR AND MANUFACTURER
SERVICE
APPENDIX 9 ANSWERS TO BUSINESS QUESTIONS
APPENDIX 10 AUTHORIZATION LETTERS OF THE SIGNATORIES (ORIGINAL), COPY OF
SELLER'S BUSINESS LICENSE AND OTHER RELATED QUALIFICATIONS AND
GUARANTEE LETTER ISSUED UNDER THE AUTHORIZATION OF PARENT COMPANY
2
Buyer: Unicom Import & Export Company Limited
Registered Address: Xxxxxxxxxxxx Xxxxx, 00 Xxxxxxxx, Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx.
Post Code: 100038
Business License Registration No.: 1000001001802
Legal Representative: Wu Duhua Title:
Tel: 000-00000000 Fax:
End-User: Unicom New Times Mobile Telecommunications Company Limited
Registered Address: No.A133 of Xxxxx Xxxxxx xx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxxxx
Post Code: 100032
Business License Registration No.: 1000001003499 (2-1)
Legal Representative: Zhang Yungao Title: Chairman
Tel: 000-00000000 Fax: 000-00000000
Seller/System Integrator: Hurray! Times Communications (Beijing) Ltd.
Registered Address: Room X00X, Xxxxx X, Xxxxxxxx Builidng, Xx. 0 Xxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx
Post Code:
Business License Registration No.: 017486
Legal Representative: Xiang Songzuo Title: Chairman
Tel: 000-00000000 Fax: 000-00000000
Place of Signing: Beijing, China
3
RECITALS
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1. Unicom Import & Export Company Limited (hereinafter referred to as
"Buyer") is a limited liability company incorporated in Beijing, and
validly existing in accordance with the law of the People's Republic of
China ("China");
2. Unicom New Times Mobile Company Limited (hereinafter referred to as
"End-user") is a limited liability company incorporated in China, and
validly existing in accordance with the law of China;
3. Hurray! Times Communications (Beijing) Ltd. (hereinafter referred to as
"Seller") is a limited liability company incorporated in China and
validly existing in accordance with the law of the China;
4. The Seller desires to sell and furnish to the End-user through the
Buyer, and the End-user desires to purchase from the Seller through the
Buyer, the Subject Matter of this Contract;
5. The Buyer, the End-user and the Seller hereby agree to execute this
Contract pursuant to the Contract Law of the People's Republic of China
and other relevant laws and regulations of China.
ARTICLE 1 Objectives of Contract, Statement and Warranties
1.1 The End-user will enter into this Contract with the Seller through
the Buyer to purchase the Subject Matter for the establishment of the Contracted
Equipment for its normal and continuous Commercial Operation; while the Seller
will enter into this Contract with the End-user through the Buyer to sell the
Subject Matter for the consideration set forth in this Contract.
1.2 To realize the objectives of this Contract, the Buyer and the
End-user hereby represent and warrant to the Seller as follows:
1.2.1 Considering that the End-user and the Buyer intend to
purchase the Subject Matter and its related services,
the End-user and the Buyer hereby undertake to jointly
perform the Buyer's obligations hereunder and to be
jointly and severally liable for any default under this
Contract;
1.2.2 The signatories of the Buyer and the End-user have been
duly authorized to execute this Contract.
1.3 To realize the objectives of this Contract, the Seller hereby
represents and warrants to the Buyer and End-user as follows:
1.3.1 The Seller is a legal entity of China incorporated and
validly existing in accordance with the law of China;
1.3.2 The Seller possesses complete ownership of the
Contracted Equipment, and is duly and legally
authorized to sell the Contracted Equipment to the
Buyer and is able to perform its obligations herein;
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1.3.3 The Seller undertakes that the Contracted Equipment is
brand new and suitable for the objective of this
Contract, and will perform in accordance with the
functionality and technical specification as set out in
the Equipment Manual hereof;
1.3.4 The Seller undertakes that the Contracted Equipment and
related services provided to the Buyer and End-user
under this Contract will meet the needs for their normal
and continuous Commercial Operation;
1.3.5 The Seller undertakes that all the documents, receipts
and information provided to the Buyer and End-user under
this Contract shall be genuine, accurate, legal and
valid;
1.3.6 Considering that the Seller desires to sell the Subject
Matter in accordance to this Contract, the Seller hereby
undertakes to perform the obligations provided
hereunder.
1.3.7 The Seller's signatory has been duly authorized to
execute this Contract.
1.4 The Buyer, the End-user and the Seller hereby acknowledge that,
during the term of this Contract, any party in breach of its undertaking under
this Article shall be liable for making compensation to the other parties.
ARTICLE 2 Definition
Unless otherwise explicitly indicated, the following terms used
in this Contract shall have the definitions provided below:
2.1 "Contract" means the main body of this Contract and all Appendices
attached hereto.
2.2 "Subject Matter" means the equipment, materials, Software License,
and Technical Documentation as set out in Appendix 3 attached hereto.
2.3 "Equipment and Service List" means the list of system equipment,
materials, Spare Parts, fittings, Software License, and Technical Documentation
as listed in Appendix 3 attached hereto.
2.4 "Contracted Equipment or Equipment" means all equipment provided by
the Seller to the Buyer and End-user in accordance with this Contract, including
equipment, materials, Spare Parts, accessories and related Software.
2.5 "System" means CDMA WAP system of China Unicom.
2.6 "Technical Documentation" means related documentation of all the
specification, manual, drawing, description and data of the Contracted Equipment
provided in accordance with this Contract and its Appendices relating to the
operation, maintenance, commissioning, testing and inspection of the Contracted
Equipment.
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2.7 "Technical Training" means the technical training provided by the
Seller to the End-user in accordance with the stipulations in Appendix 5
attached hereto.
2.8 "Technical Services" means technical services relative to the
Contracted Equipment that are provided by the Seller to the End-user in
accordance with this Contract, including the survey, planning, design and
optimization of network; the installation, testing, commissioning, operation of
the Contracted Equipment; project management; use of Software and upgrading and
other inspection, maintenance, repair and warranty services.
2.9 "Cut-over" means the completion of the installation and testing of
Contracted Equipment and the commencement of its Commercial Operation.
2.10 "Preliminary Acceptance Test" means the preliminary acceptance
tests of the Contracted Equipment conducted by the End-user and the Seller
pursuant to the technical specification as stipulated in Appendix 1 attached
hereto and the procedures and standards as set forth in Appendix 6. The End-user
and the Seller will execute a certificate of Preliminary Acceptance upon
successful completion of the Preliminary Acceptance Test.
2.11 "Final Acceptance Test" means the final acceptance tests of the
Contracted Equipment conducted by the End-user and the Seller pursuant to the
technical specification as stipulated in Appendix 1 hereto and the procedures
and standards as set forth in Appendix 6 attached hereto. The End-user and the
Seller will execute a certificate of Final Acceptance upon successful completion
of the Final Acceptance Test.
2.12 "Scope of Work" means the statement of work and responsibilities
for design, manufacturing, supplying, cut-over and acceptance tests of the
System and Contracted Equipment by the Seller in accordance with Appendix 4
attached hereto.
2.13 "Site" means the installation location of the Contracted Equipment
in Beijing, Shandong, Zhejiang and Jiangsu of China.
2.14 "Software" means all necessary programs, rules and commands that
the Buyer and End-user are authorized to use under this Contract for the
testing, inspection and operation of Contracted Equipment and the System.
2.15 "Spare Parts" means the spares or accessories that are provided by
the Seller to the Buyer and End-user for replacing the damaged components or
spare parts of the Contracted Equipment.
2.16 "Trial Run" means the period commencing from the completion of
Preliminary Acceptance Test of Contracted Equipment in accordance with the
procedures and standards set forth in Appendix 3 with continuous operation and
no Curial Communications Failure of the Contracted Equipment thereafter. This
Test Run Period is three months commencing from the date when the Buyer and
End-user execute the certificate for Preliminary Acceptance.
2.17 "Material Communications Failure" means failure of the main and
back-up equipment that has provided public communications services to the public
on the CDMA WAP network of China Unicom which cause the occurrence of equipment
breakdown, communication suspension, loss of user data, failure of billing or
material error in billing for an hour or over during normal operation timeframe
due to the software or hardware of the Equipment, including:
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the failure of CDMA WAP network of China Unicom that gives rise to all
or more than 30% of the communication suspended for more than sixty minutes
(inclusive); or the failure to produce billing data, loss of billing data, or
material error of billing data;
2.18 "General Communications Failure" means any failure other than those
provided in 2.17 above.
2.19 "Original Equipment Manufacturers" means the manufacturers of all
the third party products in relation to the System.
2.20 "Warranty" means technical support and professional service
provided by a third party equipment (including software) manufacturer (i.e.
Original Equipment Manufacturer) in connection with the Contracted Equipment and
System under this Contract in accordance with Appendix 8 hereto (including
on-site services).
2.21 "Commercial Operation" means the capability of operation of CDMA
WAP network of China Unicom or any of its part, and with one or more premium
subscribers.
2.22 "Business Day" means Monday through Friday, except for statutory
holidays of China.
2.23 "Parties" means the Buyer, the End-user and the Seller,
collectively.
2.24 "Party" means any one of the Buyer, the End-user or the Seller.
ARTICLE 3 Subject Matter, Contents and Scope of this Contract
3.1 The Buyer and End-user agree to purchase from the Seller, and the
Seller agrees to sell to the Buyer and End-user, the equipment, materials, Spare
Parts, fittings, Software License, training, system engineering and after-sales
services and Technical Documentation as set out in Appendix 3.
3.2 The Seller will grant to the End-user the non-exclusive and
nontransferable license to use the Software for End-user's maintaining the
normal Commercial Operation of the Contracted Equipment within China.
ARTICLE 4 Purchase Price
4.1 The End-user shall pay to the Seller a total purchase price (the
"Total Purchase Price") of RMB37,926,196 (RENMINBI THIRTY SEVEN MILLION NINE
HUNDRED AND TWENTY SIX THOUSAND ONE HUNDRED AND NINETY SIX ONLY) in accordance
with Appendix 2 of this Contract, of which:
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the Total Purchase Price payable to Beijing website shall be
RMB11,227,904 (RENMINBI ELEVEN MILLION TWO HUNDRED AND TWENTY SEVEN THOUSAND
NINE HUNDRED AND FOUR ONLY);
the Total Purchase Price payable to Shanghai website shall be
RMB8,346,180 (RENMINBI EIGHT MILLION THREE HUNDRED AND FORTY SIX THOUSAND ONE
HUNDRED AND EIGHTY ONLY);
the Total Purchase Price payable to Guangdong website shall be
RMB8,769,071 (RENMINBI EIGHT MILLION SEVEN HUNDRED SIXTY NINE THOUSAND AND
SEVENTY ONE ONLY);
the Total Purchase Price payable to Chongqing website shall be
RMB9,583,041 (RENMINBI NINE MILLION FIVE HUNDRED AND EIGHTY THREE THOUSAND AND
FORTY ONE ONLY).
4.2 The Total Purchase Price defined above is a fixed price.
4.3 The Total Purchase Price defined above is a loco price after
taxation designated by the End-user.
4.4 The Total Purchase Price defined above shall include:
4.4.1 The complete system equipment, installation materials,
installation tools, Spare Parts and Technical
Documentation as set forth in this Contract that are
provided by the Seller.
4.4.2 The expenses payable by the Seller in connection with
the delivery of the Contracted Equipment from the place
of the Seller to the site designated by the Buyer and
the End-user, the loading and unloading in connection
therein, and the insurance in the amount of 100% of the
Total Purchase Price.
4.4.3 The expenses payable by the Seller in connection with
the engineering services (including the network survey,
planning, design, installation, fine-tuning,
optimization, cut-over and engineering services
conducted before the execution of certificate of
Preliminary Acceptance), and other technical service
fees and training fees.
4.4.4 The insurance premium payable by the Seller in
connection with insurance of the equipment under the
project during the period commencing from the unloading
of the equipment on site and ending at the date of
execution of the certificate of Preliminary Acceptance.
If the installation of the Subject Matter does not
commence and the same remains in storage within 60 days
after the planned installation date provided under this
Contract due to the reasons on the part of the End-user, any
storage expenses and insurance premium incurred from the
61st day after the planned installation date until the day
of delivery on site shall be reimbursed by the End-user to
the Seller. Such reimbursement shall not expressly indicate
that the End-user will take any responsibility in connection
with the Subject Matter during such period.
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ARTICLE 5 Payment and Payment Terms
5.1 All the payments under this Contract shall be made in Renminbi by
the End-user through its designated account to the Seller's designated bank
account in accordance with this Article.
5.2 Payment upon Delivery
Within 15 Business Days upon receipt of Subject Matter and the
execution of all delivery certificates, the End-user shall pay to the Seller by
wire transfer of 50% of the Total Purchase Price equaling RMB18,963,099
(RENMINBI EIGHTEEN MILLION NINE HUNDRED AND SIXTY THREE THOUSAND AND NINETY NINE
ONLY) in accordance with the receipts listed as items (1) and (2) below, of
which:
the Total Purchase Price payable to Beijing website shall be
RMB5,613,952 (RENMINBI FIVE MILLION SIX HUNDRED AND THIRTEEN THOUSAND NINE
HUNDRED AND FIFTY TWO ONLY);
the Total Purchase Price payable to Shanghai website shall be
RMB4,173,090 (RENMINBI FOUR MILLION ONE HUNDRED AND SEVENTY THREE THOUSAND AND
NINETY ONLY);
the Total Purchase Price payable to Guangdong website shall be
RMB4,384,536 (RENMINBI FOUR MILLION THREE HUNDRED AND EIGHTY FOUR THOUSAND FIVE
HUNDRED AND THIRTY SIX ONLY);
the Total Purchase Price payable to Chongqing website shall be
RMB4,791,521 (RENMINBI FOUR MILLION SEVEN HUNDRED AND NINETY ONE THOUSAND FIVE
HUNDRED AND TWENTY ONE ONLY).
(1) The original copy of payment instruction issued by the
Seller to the End-user;
(2) The original copy of delivery and acceptance certificate
signed by the End-user and the Seller;
The Seller shall issue commercial invoices of such amount to the
above zones (the branches of the End-user), respectively, based on the Total
Purchase Prices payable to Beijing website, Shanghai website, Guangdong website
and Chongqing website within three Business Days upon receipt of such amount.
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5.3 Payment upon Preliminary Acceptance.
The Seller and the End-user shall mutually execute the
certificate of Preliminary Acceptance within five Business Days after the
completion of the Preliminary Acceptance Test of the Contracted Equipment. The
End-user shall pay to the Seller within 15 Business Days after the execution of
such certificate by wire transfer of 40% of the Total Purchase Price equaling
RMB15,170,478 (RENMINBI FIFTEEN MILLION ONE HUNDRED AND SEVENTY THOUSAND FOUR
HUNDRED AND SEVENTY EIGHT ONLY) in accordance with the receipts listed as items
(1) and (2) below, of which:
the Total Purchase Price payable to Beijing website shall be
RMB4,491,162 (RENMINBI FOUR MILLION FOUR HUNDRED AND NINETY ONE THOUSAND ONE
HUNDRED AND SIXTY TWO ONLY);
the Total Purchase Price payable to Shanghai website shall be
RMB3,338,472 (RENMINBI THREE MILLION THREE HUNDRED AND THIRTY EIGHT THOUSAND
FOUR HUNDRED AND SEVENTY TWO ONLY);
the Total Purchase Price payable to Guangdong website shall be
RMB3,507,628 (RENMINBI THREE MILLION FIVE HUNDRED AND SEVEN THOUSAND SIX HUNDRED
AND TWENTY EIGHT ONLY);
the Total Purchase Price payable to Chongqing website shall be
RMB3,833,216 (RENMINBI THREE MILLION EIGHT HUNDRED AND THIRTY THREE THOUSAND TWO
HUNDRED AND SIXTEEN ONLY).
(1) The original copy of payment instruction issued by the
Seller to the End-user;
(2) The original copy of the certificate of Preliminary
Acceptance jointly signed by the End-user and the Seller;
The Seller shall issue commercial invoices of such amount to the
above zones (the branches of the End-user), respectively, based on the Total
Purchase Prices payable to Beijing website, Shanghai website, Guangdong website
and Chongqing website within three Business Days upon receipt of such amount.
5.4 Payment upon Final Acceptance. The Seller and the End-user shall
mutually execute the certificate of Final Acceptance within five Business Days
after the completion of the Final Acceptance Test of the Contracted Equipment.
The End-user shall pay to the Seller within 15 Business Days after the execution
of such certificate by wire transfer of 10% of the Total Purchase Price equaling
RMB3,792,619 (RENMINBI THREE MILLION SEVEN HUNDRED AND NINETY TWO THOUSAND SIX
HUNDRED AND NINETEEN ONLY) in accordance with the receipts listed as items (1)
and (2) below, of which:
the Total Purchase Price payable to Beijing website shall be
RMB1,122,790 (RENMINBI ONE MILLION ONE HUNDRED AND TWENTY TWO THOUSAND SEVEN
HUNDRED AND NINETY ONLY);
the Total Purchase Price payable to Shanghai website shall be
RMB834,618 (RENMINBI EIGHT HUNDRED AND THIRTY FOUR THOUSAND SIX HUNDRED AND
EIGHTEEN ONLY);
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the Total Purchase Price payable to Guangdong website shall be
RMB876,907 (RENMINBI EIGHT HUNDRED AND SEVENTY SIX THOUSAND NINE HUNDRED AND
SEVEN ONLY);
the Total Purchase Price payable to Chongqing website shall be
RMB958,304 (RENMINBI NINE HUNDRED AND FIFTY EIGHT THOUSAND THREE HUNDRED AND
FOUR ONLY).
(1) The two original copies of payment instruction issued by the
Seller to the End-user;
(2) The original copy of the certificate of Preliminary
Acceptance jointly signed by the End-user and the Seller;
The Seller shall issue commercial invoices of such amount to the
above zones (the branches of the End-user), respectively, based on the Total
Purchase Prices payable to Beijing website, Shanghai website, Guangdong website
and Chongqing website within three Business Days upon receipt of such amount.
5.5 Any banking and other expenses incurred in connection with
performance of this Contract shall be borne by the Parties.
5.6 The bank account designated by the Seller is as follows:
Payee: Hurray! Times Communications (Beijing) Ltd.
Opening Bank: Huaxia Bank, Capital Gymnasium Sub-branch
Account No. 74283933325
5.7 Any change in the bank and/or account number of the Seller shall be
notified in writing to the End-user by the Seller 15 days prior to the
End-user's payment pursuant to this Contract. If the Seller fails to notify the
End-user in time or the notice is erroneous, the End-user will not bear any
responsibility for overdue payment.
5.8 The End-user shall pay to the Buyer the agency fee of this Contract
in the amount of 0.25% of the Total Purchase Price equaling to RMB94,815
(RENMINBI NINETY FOUR THOUSAND EIGHT HUNDRED AND FIFTEEN ONLY) in lump-sum
within three months upon execution of this Contract. Of which:
the fee payable to Beijing website shall be RMB28,070 (RENMINBI
TWENTY EIGHT THOUSAND AND SEVENTY ONLY);
the fee payable to Shanghai website shall be RMB20,865 (RENMINBI
TWENTY THOUSAND EIGHT HUNDRED AND SIXTY FIVE ONLY);
the fee payable to Guangdong website shall be RMB21,923 (RENMINBI
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TWENTY ONE THOUSAND NINE HUNDRED AND TWENTY THREE ONLY);
the fee payable to Chongqing website shall be RMB23,957
(RENMINBI TWENTY THREE THOUSAND NINE HUNDRED AND FIFTY SEVEN ONLY).
Opening Bank: Guangdong Development Bank, Beijing Branch,
Cuiwei Road Sub-branch
Account No. 137131516020000028
Beneficiary: China Unicom Import & Export Company Limited
ARTICLE 6 Delivery And its Terms
6.1 The Seller shall deliver the equipment and materials, Software and
Technical Documentation in connection with the Subject Matter hereunder to the
Buyer at the designated place stipulated in Article 6.4. Partial delivery is
allowed but shall not exceed two installments. The Seller guarantees that all
equipment will be delivered in full set by websites with special installation
tools and materials delivered at the same time.
6.2 Upon delivery, the Seller should provide the Buyer and the End-user
with two originals of delivery certificate. The representative of the End-user
shall check against the actual arrivals, sign the two originals of the delivery
certificate and return one of them to the Seller. The execution of the original
of delivery certificates shall only be served as an evidence of receiving the
numbers of the boxes and whether the package has been seriously damaged on a
specific date.
6.3 Ownership to and risk associated with the Contracted Equipment shall
be transferred to End-user at the following date:
Ownership to and risks associated with the Contracted Equipment
shall be transferred to End-user at the date on which the equipment, materials,
software and technical information provided by the Seller are good for
Preliminary Acceptance Test and the certificate thereof is executed.
6.4 The Seller will fulfill the delivery of the Contracted Equipment and
materials, Software and Technical Documentation in accordance with the
Implementation Time Schedule set out in Appendix 4.
Date when the Seller completes delivery of all the Equipment:
within two weeks after the execution of this Contract
Place where the Seller delivers the Equipment: such site as
designated by the End-user
6.5 To ensure on-schedule delivery and on-schedule performance of this
Contract in accordance with the Implementation Time Schedule set out in Appendix
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4, the Seller shall assign engineers and technicians to conduct site survey with
-
the cooperation and assistance of the End-user.
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6.6 The Buyer and End-user shall have the right to assign their
technical staff to witness factory acceptance at premises of the Seller before
the Contracted Equipment is taken out of the factory. Where deemed necessary,
the Buyer and End-user may assign their technical staff to the Seller's factory
to participate in factory testing of the Contracted Equipment. Involvement of
the technical staff of the Buyer and End-user in the factory acceptance or
factory testing of the Contracted Equipment shall not relieve the Seller from
any of its obligations hereunder.
6.7 The Seller shall furnish the Buyer and End-user with the factory
testing records for each set of the equipment and the certificate of origin when
delivering the Contracted Equipment.
6.8 The Seller shall make a standard testing to all the Contracted
Equipment before the shipment to ensure that they can meet the requirements of
the standards stipulated in the Technical Specification and shall submit a
report in respect of the test. The test results must comply with the
manufacturing specification as well as various specifications illustrated in
Appendix 1.
6.9 The Seller serves a written notice to the Buyer and the End-user the
status of the Contracted Equipment no later than five working days before the
shipment date.
ARTICLE 7 Packing, Marking, Transportation and Insurance
7.1 The Seller shall firmly pack the to-be-shipped Subject Matter so as
to protect the Subject Matter against moisture, wetness, rustiness, erosion and
shock during long-distance inland transportation and warehousing. The Seller
shall be liable for damage of the Subject Matter hereunder owing to improper
packing.
7.2 All the packing boxes including those containing bulk accessories
shall be marked by the Seller with the Contract Number indicated. The Seller
shall conspicuously xxxx the following on two sides of each box:
1) Contract Number, names and pieces of the goods;
2) Shipping xxxx;
3) Consignee;
4) Destination;
5) Case No.;
6) Gross weight/net weight;
7) Dimension (L*W*H)
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7.2.1 Depending on the characteristics and different
requirements of each container to be transported, the
Seller shall xxxx such words as "Handle with Care",
"This Side Up" and "Keep Dry".
7.2.2 Marking shall be made in Chinese for inland
transportation.
7.3 The Seller shall label each accessory and fitting outside the
package, such as "Spare Parts" or "Tools", and indicate the Equipment
designation as well as the Contract Number and Case Number, if any part is
packed separately from the Equipment, name of the part and relevant equipment,
and the number of the part on the installation drawing shall be marked.
7.4 The Seller shall enclose packing list in each shipment.
7.5 The Seller shall bear the cost of transportation and transportation
insurance of delivering the Contract Subject Matter to the designated place
stipulated in Article 6.4, and shall bear the cost of insurance until the
signature of the Preliminary Acceptance Test Certificate. The above cost is
included in the Total Purchase Price.
ARTICLE 8 Standards and Commodity Inspection
8.1 Quality Standard. The Contracted Equipment delivered by the Seller
under this Contract shall fully comply with related standards promulgated by the
Ministry of Information Industry of the People's Republic of China, ISO9001
(1994) international standards, various indexes and requirements set out in
Appendix 1 and descriptions of technical functionality of the product in
Appendix 8.
8.2 Production, measurements and acceptance of the Contracted Equipment
delivered by the Seller under this Contract shall comply with the requirements
described in "Technical Specifications" and the relevant quality standards in
Appendix 6.
8.3 The Seller shall test and check the Contracted Equipment delivered
under this Contract before taking them out of the factory, and furnish the test
reports, quality certificate and origin certificate to the Buyer and End-user.
8.4 All the Contracted Equipment delivered by the Seller under this
Contract shall undergo open-case check at site designated by the End-user. The
Seller must dispatch inspector(s) to make the open-case check on the site and
bear expenses incurred by its own inspectors. During the said open-box check,
each party involved shall carefully record any shortage, damage or inconsistency
with stipulations hereunder identified in the open-case check and sign to
validate the record. Such records shall constitute valid evidence for the Buyer
and End-user to claim for replacement, repair or supplement from the Seller and
to claim for insurance compensation. Should such shortage, damage or
inconsistency with the quality standard set out in Article 8.1 herein be solely
attributed to the Seller's default, the expenses of such replacement, repair
and/or supplement shall be borne by the Seller. The End-user shall inform the
Seller of the expected date of the open-case check within 3 business days prior
to such check and shall notify the Seller as soon as possible once the exact
date is confirmed. If the Seller fails to participate in the open-case check on
the very date of such check, it will be deemed that the said party has willingly
rejected the right of involvement in such check, in such case, the End-user
shall have the right to proceed with the open-case check independently. For any
shortage, damage or inconsistency with the quality standard set out in Article
8.1 in such event, the Seller shall provide replacement, repair or supplement
thereof. If the Seller fails to make replacement, repair or supplement during
the delivery period, it shall be deemed to have been delayed in delivery and
shall be liable for the breach of contract. All freight, risks and inspection
expenses incurred in such replacement, repair or supplement made to the
Equipment shall be solely borne by the Seller.
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8.5 If the Seller holds objection against the claim by the Buyer and
End-user, it shall raise such objection in writing within 5 business days upon
receiving such claim. Failure of the Seller to raise such objection in writing
within the period herein shall be deemed as the Seller's acceptance of the claim
by the Buyer and End-user.
8.6 The Buyer and End-user shall have the right to apply to competent
commodity inspection authority for inspection of all the Contracted Equipment
delivered by the Seller under this Contract, with the expenses thereof to be
borne by the applying party, however, if any problem is identified in respect of
the Equipment by such competent commodity inspection authority, the expenses of
such commodity inspection shall be borne by the Seller.
ARTICLE 9 Testing (Preliminary Acceptance Test), Trial Run And Final
Acceptance Test
9.1 The End-user and the Seller will proceed with various tasks ranging
from network planning, design, and equipment optimization, test to acceptance in
accordance with the Schedule of Project Progress set out in Appendix 4. Within
the term of this Contract, each of the End-user and the Seller should designate
a representative in charge of dealing with technical issues in connection with
this Contract, with their work plans to be determined through consultation among
the representatives of all parties. In the event that any technical problem is
identified or a dispute on technical problem arises, the representatives of the
parties should analyze the reasons and clarify the responsibilities and
coordinate to re-design. Day-to-day work and solutions shall be recorded in the
work log during the commissioning and acceptance period. The daily record
therein shall be confirmed by the respective representatives of the Parties by
signature and each Party shall keep one copy.
9.2 The Seller shall be responsible for the network planning, design and
optimization, the delivery, testing and Final Acceptance Test of Contracted
Equipment, while the technical personnel of the End-user shall provide necessary
assistance.
9.3 The acceptance testing shall recognize the requirement for
conformity to the indexes and standards as set forth in Appendix 1 of this
Contract, as well as the test procedures and standards of both Preliminary
Acceptance Test and Final Acceptance Test set out in Appendix 6 of this
Contract.
9.4 Preliminary Acceptance Test
9.4.1 The Preliminary Acceptance Test will commence within 30 days
after the Contracted Equipment have been installed, tested,
cut-over with System steadily operating. Within 15 days prior to
the commencement of the Preliminary Acceptance Test, the Seller
should confirm in writing with the End-user the date of
Preliminary Acceptance Test and submit the testing scheme and
related documents consistent with the test procedures and
standards of Preliminary Acceptance Test as set out in
Appendix 6 attached hereto.
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9.4.2 Representatives of the End-user and the Seller shall execute the
certificate of Preliminary Acceptance within 3 business days
after the successful completion of the Preliminary Acceptance
Test of the Contracted Equipment. If, due to reasons not
attributable to the End-user, the Preliminary Acceptance Test
fails to come up to all the indexes and standards as set out in
Appendix 1 of this Contract, the Seller shall eliminate the
existent problem within 15 business days and resume the
Preliminary Acceptance Test. All the cost incurred in solving
such problem and resuming the Preliminary Acceptance Test shall
be borne by the Seller.
9.4.3 If, due to reason attributable to the End-user, the certificate
of Preliminary Acceptance has not yet been issued within 15
business days from the successful completion of the Preliminary
Acceptance Test of the Contracted Equipment, or after 90 days
from the date of execution of the delivery certificate by the
End-user, the End-user shall provide to the Seller and the Buyer
a payment confirmation letter executed by the duly authorized
representative of the End-user and affixed with an official seal
of the End-user, and effect the payment installment due to the
Seller upon successful completion of the Preliminary Acceptance
Test as stipulated in Article 5.3 of this Contract. The
aforementioned payment shall not relieve the Seller from its
obligation to complete the Preliminary Acceptance Test of the
Contracted Equipment and to get a pass in such test.
9.5 Trial Run and Final Acceptance Test
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9.5.1 The Trial Run of the Contracted Equipment will be for a
period of 90 days starting from the issuance of the
certificate of Preliminary Acceptance for the Contracted
Equipment. If any Major Communication Failure occurs for
reasons attributable to Seller during the Trial Run, the
Trial Run shall be suspended and resumed when such Major
Communication Failure has been eliminated and the
Contracted Equipment repaired by the Seller. If the
Major Communication Failure occurs for reasons not
attributable to the Seller, the Trial Run shall be
suspended and resumed when such Major Communication
Failure has been eliminated and the Contracted Equipment
repaired by the Seller. The Seller is obligated to
provide responsive technical support to the End-user who
operates and maintains the Contracted Equipment in
accordance with the Operation Manual during the Trial
Run period.
9.5.2 Except as otherwise provided in this Contract, the Final
Acceptance Test on the Contracted Equipment shall be
conducted 90 days after issuance of the certificate for
Preliminary Acceptance. The Seller shall confirm the
testing date with the End-user in writing, and submit a
testing scheme and related information in conformity to
the final acceptance test procedures and standards
described in Appendix 6 of this Contract seven (7) days
prior to the starting of the Final Acceptance Test.
9.5.3 Representatives of the End-user and the Seller shall
issue a certificate for Final Acceptance within three
(3) business days from the successful completion of
Final Acceptance Test. In case the test fails to meet
the requirements of all the parameters and indexes
defined in the "Technical Specification" of Appendix 1
and the technical functionality described in Appendix 9
of this Contract due to reasons not attributable to the
End-user, the Seller shall be responsible for solving
all the existing problems and re-conducting the test
within thirty (30) business days, with all the costs
thereon undertaken by itself. In case the test fails to
meet the requirements of all the parameters and indexes
defined in the "Technical Specification" of Appendix 1
of this Contract due to reasons attributable to the
End-user, the End-user shall be responsible for solving
all the existing problems and re-conducting the test
within thirty (30) business days, with all the costs
thereon undertaken by the End-user.
9.5.4 If, due to reasons not attributable to the Seller, the
End-user fails to execute the certificate for Final
Acceptance within 15 business days from the completion
of Final Acceptance Test, or after 180 days from the
date of the execution of the delivery certificate by
the End-user, the End-user shall pay to the Seller the
amount as set out in Article 5.4 of this Contract.
However, such payment shall not relieve the Seller from
its obligation to continue to conduct and complete the
Final Acceptance Test of the Contracted Equipment.
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9.5.5 In cases where the Contracted Equipment fails to pass
the Final Acceptance Test due to reasons attributable to
the Seller, and the Seller has replaced the parts and/or
solved the existing problems directing to such the
failure, the End-user shall provide assistance in the
second Final Acceptance Test.
9.5.6 In case of equipment or parts repair/replacement due to
reasons attributable to the Seller, all the costs
incurred in such repair/replacement, including the
expense incurred in transporting the Contracted
Equipment or part thereof out of the End-user's Site for
repair/replacement and in returning the
repaired/replaced Equipment or parts thereof back to the
End-user's Site, should be borne by the Seller.
9.6 Final Acceptance of the Contracted Equipment and System shall not
relieve the Seller and technical support party from its respective obligations
during the Warranty Period stipulated hereunder.
ARTICLE 10 Technical Assurance And Warranty
10.1 Technical Assurance
10.1.1 The Seller assures that the Contracted Equipment
provided is with high technical level and is
manufactured by using the best and most up-to-date
workmanship. The Seller also assures that the Contracted
Equipment will work securely, reliably and stably,
comply with the parameters and integrality stipulated in
Appendix 1 and meets the performance standards
stipulated in Appendix 8.
10.1.2 The Seller assures that the Technical Documentation
provided by it are the most up-to-date and is complete,
clear and accurate, and comply with related stipulations
of this Contract and its appendixes, so as to ensure
reliable operation of the Contracted Equipment.
10.2 Warranty
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10.2.1 Warranty period of the Contracted Equipment will be 24
months from the signing date of the Final Acceptance
Certificate.
10.2.2 In case of return-for-repair of any item of the
Contracted Equipment, the Warranty period of the said
item will be recounted. Warranty period of the
returned-for-repair item shall be 12 months from the
return, or the remainder of its original Warranty
Period, whichever is longer.
10.3 Within the Warranty Period, if the Seller decides to reclaim the
defective items, the End-user shall return the defective items to the place and
by means designated by the Seller, and complete the Repair Delivery Sheet,
Technical Service Form and Failure Report furnished by the Seller. The charge
for returning the defective items shall be on the Seller's cost.
10.4 Within the Period of validity of this Contract, the
repair/replacement period for the defective items is 10 working days, which
should not impact the normal Commercial Operation of the System.
10.5 Upon the occurrence of General communication Failures from the
success of the Preliminary Acceptance Test and within the Warranty Period, the
Seller shall respond within 4 hours upon receiving the notice of such failure in
order to define the failure, make a decision on failure repair or parts
replacement and give a written report to the End-user as early as possible. The
Seller is obligated to eliminate the above-mentioned failure within 24 hours
upon receiving the failure notice.
10.6 In case of Material Communication Failure, upon receiving the
failure notice, the Seller shall immediately dispatch engineers to the Site by
the fastest transportation means to restore normal Commercial Operation of the
Contracted Equipment and System and eliminate the above-mentioned failure within
24 hours with active cooperation from the End-user. If such failure is
attributable to the fault of the Seller, the Seller shall be liable for losses
to the Buyer and the End-user pursuant to the stipulations of Clause 13 of this
Contract.
10.7 If the End-user consider it necessary, the Seller shall dispatch
its technicians to assist the End-user to make on-site check or repair, the
Seller shall bear its own cost provided that such arrangement within the
Warranty period.
10.8 Beyond the Warranty period, the End-user may, within 60 days
after the Warranty period, claim for warranty service for any defect that had
occurred within the Warranty period.
10.9 The aforementioned warranty service does not cover defects,
damage, failure or malfunction resulting from:
10.9.1 Damage caused by misuse or abuse to the System;
10.9.2 Any modification, repair or alteration made by any third
party other than the Seller or its authorized agent;
10.9.3 Improper installation, storage, operation or maintenance
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executed by any third party other than the Seller or its
authorized agent;
10.9.4 Removal of the Contracted Equipment from the original
installation site without consent from the Seller;
10.10 This warranty is not applicable to equipment or system
manufactured by any party other than the Seller or its authorized agents,
regardless of whether these equipment or systems are combined or connected with
the Contracted Equipment. In other words, this warranty is only applicable to
the Contracted Equipment manufactured by the Seller.
10.11 From the effective date of this Contract till the end of the
Warranty period, the expenses of maintenance and return (including freight and
insurance) of defective items of the Contracted Equipment shall be borne by the
Seller. Beyond the Warranty period, the End-user will bear only the cost price
of such maintenance and domestic one-way freight and insurance. Beyond the
Warranty period, the Seller is obligated to continue the technical support
services to the Contracted Equipment supplied hereunder. For Equipment required
for replacement or repair services, the Seller will charge at the discount rate
of the Contract, the Purchase Price or the then-current favorable price in
market, whichever the lowest.
10.12 Warranties, Modification and Upgrade of Software
10.12.1 The Seller shall provide free-of-charge technical
support and warranty for the Software for a period from
the date on which the delivery certificate is signed by
the End-user to the date on which the certificate of
Final Acceptance Test of the System is signed.
10.12.2 The Seller assures that the Software is the latest
commercially mature version without any designing or
producing defect that can cater to the demands of normal
and reliable Commercial Operation of the Contracted
Equipment and the System.
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10.12.3 In the event that the Software supplied hereunder fails
to meet the requirements set out in Appendix 1 hereto,
the Seller should immediately provide free-of-charge
modification and upgrade to the said Software.
10.12.4 The Seller assures that the Software supplied hereunder
is the latest mature version, and in the event the
introduction of a upgraded version of the Software
during the period from the execution of this Contract to
the date on which the certificate of Final Acceptance
Test is signed, the Seller shall provide free-of-charge
upgrade of the fundamental software package (but not
adding in new business or new function).
10.12.5 The Seller warrants that it will provide the same level
of warranty to the equipment purchased from the other
third party suppliers and provided by it.
10.12.6 The Seller warrants that it will make change or
renovation to the Software of the same version purchased
on a free-of-charge basis.
10.12.7 The Seller warrants that the discount rate of the new
function and updated version of the Contract software
should lower than the discount rate of this Contract.
10.12.8 The Seller warrants that the equipment software and the
network management software shall be upgraded smoothly
and continuously as the update of the Software, and if
failed, the Seller shall recover the former software
edition and the related database at its cost.
10.13 Upon expiry of the Software Warranty period, the End-user shall
have the right to pursue a renewed warranty service agreement, under which, the
Seller shall ensure that the price of such service is not higher than the
identical service provided within the Warranty period under this Contract.
ARTICLE 11 Spare Parts
11.1 The Seller shall ensure an availability of supply to the Buyer
and End-user of Spare Parts of the Contracted Equipment for a period of ten (10)
years from the signing date of the Final Acceptance Certificate; in the event
that the Seller decides to discontinue production of a specific part, the Seller
shall give an at least 6-month advance notice to the End-user, to enable the
Buyer and End-user the opportunity to buy and stock adequate spares.
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11.2 The Seller shall ensure that the price the Buyer and the
End-user will pay in purchasing Spare Parts of the Contracted Equipment not
stipulated in the Appendix 3 will not be higher than the purchase price of Spare
Parts in this Contract, and the discount rate thereof will not be lower than the
discount rate of Spare Parts offered in this Contract or the then-current
favorable price in the market (whichever is the lowest).
11.3 The Seller shall provide recommendations on the purchase amount
of the Spare Parts of the Contracted Equipment, and ensure accuracy and
rationality of such recommendation. In case of inadequacy of Spare Parts that
recommended within the Warranty period, the Seller shall, at its own cost,
provide to the End-user sufficient Spare Parts.
11.4 The Seller shall establish related Spare Parts warehouse in the
designated cities provided in Article 6.4 to ensure the normal Commercial
Operation of Contracted Equipment during and after the Warranty period.
ARTICLE 12 Additional Order and Capacity Expansion
12.1 This Contract, upon execution, will constitute the framework
contract for additional orders for equipment and service similar to the
Contracted Equipment provided that such order does not exceed 10% of the Total
Purchase Price.
12.2 The price offered for system reconstruction/extension/expansion
in future shall not be higher than the Purchase Price or the then-current
favorable price in the market, and the discount rate of this Contract shall not
be lower than the discount rate offered in this Contract (whichever is the
lowest).
ARTICLE 13 Claims
13.1 The End-user shall open the case at the sight of the Seller
personnel within ten (10) business days after the Contracted Equipment reaches
the site designated by the End-user, and the Contracted Equipment shall be
inspected by the representatives of the End-user and the Seller respectively.
The Buyer and End-user shall make and sign a detailed record on any shortage,
damage or inconsistency with stipulations hereunder identified during such
open-case check. Such record shall be deemed as valid evidence for the Buyer and
End-user to claim replacement, repair or supplement from the Seller. Should such
shortage, damage or inconsistency with stipulations hereunder be solely
attributed to the fault of the Seller, the direct expenses of such replacement,
repair and/or supplement shall be borne by the Seller. If the Seller fails to
participate in the open-case check on the very date of such check, it will be
deemed that the said party has willingly rejected the right of involvement in
such check, in such case, the End-user shall have the right to proceed with the
open-case check independently. For any shortage, damage or inconsistency with
the quality standard set out in this Contract, the End-user shall have the right
to demand the Seller to make replacement, repair, supplement thereof and/or
compensation. All freight, risks and inspection fee incurred in such
replacement, repair or supplement made to the Equipment shall also be borne by
the Seller.
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13.2 Except for Force Majeure, if the completion of equipment
shipment is delayed due to fault solely attributable to the Seller, for each 7
day period of such delay, the Seller shall pay to the Buyer and End-user a
penalty at the rate of 0.5% of the Total Purchase Price. Duration of less than 7
days will be deemed as 7 days. If the completion of cutover of the Contracted
Equipment cannot be made within the period set out in this Contract due to fault
solely attributable to the Seller, for each 7 day period of such delay, the
Seller shall pay to the Buyer and End-user a penalty at the rate of 0.5% of the
Total Purchase Price. Duration of less than 7 days will be deemed as 7 days.
However, the aggregate penalty imposed upon the Seller for delayed shipment and
delayed cutover shall not exceed 10% of the Total Purchase Price.
13.3 The penalty stipulated in Article 13.2 above will not relieve
the Seller from performance of its obligations to deliver the Contracted
Equipment, maintain the normal operation condition of the Contracted Equipment
and other obligations and liabilities that shall be undertaken by the Seller
hereunder. In the event that the delay indicated in Article 13.2 exceeds 60
days, the Buyer and End-user shall have the right to terminate this Contract and
claim against the Seller for all losses suffered by the Buyer and End-user
arising from such delay.
13.4 From the signing date of the Preliminary Acceptance Test
Certification till the end of the Warranty Period, if any defect or fault in the
Equipment and Service furnished by the Seller causes the major communication
failure, the Seller shall eliminate such defect or fault by means of free repair
or replacement of the defective items of Equipment and by providing related
services, within 24 hours upon receiving the notice. If Seller fails to
eliminate such defect or fault causing such major communication failure within
such 24 hour period, then for each additional day following the day of the
expiry of such 24-hour period during which such defect or fault remains
un-eliminated, the Seller shall pay to the Buyer and End-user a penalty at the
rate of one ten thousandth (0.001%) of the Contract price. In the event that
such penalty is not sufficient to cover the damages incurred by the Buyer and
End-user thereby, the Seller shall be liable for the difference.
13.5 From the issuance of the certificate of Preliminary Acceptance
till the end of the Warranty period, if any defect or fault in the Contracted
Equipment and Service furnished by the Seller causes any Material Communication
Failure, the Seller shall eliminate such Material Communication Failure by
providing free repair and/or replacement of the defective items of Contracted
Equipment and by providing free related services, within 24 hours upon receiving
the notice submitted by the Buyer or End-user to the Seller. The Seller also
shall be liable to losses to the Buyer and the End-user due to the failure. The
above-mentioned compensation shall be equivalent to the loss caused by such
default and include such profit realizable after performance of this Contract,
including without limitation: (1) the compensation made by the Buyer and the
End-user for the actual loss sustained by users in connection with equipment
breakdown or material system failure; (2) loss of operating income sustained by
the Buyer and the End-user in connection with equipment breakdown or material
system failure, such loss shall be calculated based on the average daily
operating income of the last month.
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13.6 The loss or damages from the Material Communication Failure
(including system shutdown) will be calculated starting from the time when the
Seller receives the Buyer's or End-user's notice of the Material Communication
Failure.
If the Seller eliminates such Material Communication Failure
within 24 hours, the maximum amount of damage of the Buyer and End-user payable
by the Seller shall be no more than 8% of the Purchase Price. If the Seller
fails to eliminate such Material Communication Failure within 24 hours, then the
Seller shall be liable for the Buyer's or End-user's actual loss as if the
Seller should have been breached this Contract.
In any event, the Seller shall not be liable to the Buyer and
the End-user for an amount greater than 100% of the Total Purchase Price.
ARTICLE 14 Force Majeure
14.1 Force Majeure as referred to under this Article shall mean any
event that is unpredictable, unpreventable, unavoidable or beyond the reasonable
control of the Party, including but not limited to earthquake, typhoon, flood,
fire and war.
14.2 Any Party who cannot perform or complete its obligations
hereunder due to Force Majeure shall inform other parties within fourteen (14)
days from the date of occurrence of such Force Majeure, and where possible, send
to other parties a signed certification of occurrence of such Force Majeure
issued by a local public notarization authority within thirty (30) days from the
date of occurrence of such Force Majeure.
14.3 The party who cannot perform this Contract due to Force Majeure,
depending on the effects of such Force Majeure, will not be responsible for
delays or lack of performance resulting from Force Majeure unless otherwise
stipulated by Law.
14.4 Responsibilities shall not be released if delay or lack of
performance occurs prior to the Force Majeure.
14.5 Should the suspension of performance of this Contract due to the
Force Majeure indicated herein last over 60 or more days, either Party shall
have the right to terminate this Contract with written notice. In such event of
termination, the Buyer and End-user shall not refuse to pay to the Seller the
payable amount under this Contract that is not affected by the Force Majeure,
and the Seller shall not refuse to perform its obligations not affected by the
Force Majeure.
ARTICLE 15 Arbitration
Any dispute arising out of or in connection with this Contract
shall be settled through amicable consultation among the parties. In the event
that such dispute cannot be settled amicably such dispute shall be submitted to
arbitration by China International Economic and Trade Arbitration Commission
(CIETAC) in accordance with its arbitration rules enforcing at time when such
arbitration is appealed. The arbitration will be conducted in Beijing. The
arbitration award shall be final and binding upon the parties.
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In the course of the arbitration, the parties shall continue to
execute this Contract except for the part that is under arbitration.
ARTICLE 16 Notice
16.1 All notices required to be given by the Buyer, the End-user and
the Seller to other party(ies) in execution of this Contract or in connection
with this Contract shall be in writing and delivered or transmitted to the
addresses indicated in the permeable section of this Contract, by fax or similar
communication means or registered post confirmed by the Buyer, the End-user or
the Seller, as the case may be.
16.2 In case of fax or similar communication means, the issuing date
of the notice shall be deemed as the date of notice; in case of registered post,
the date when the mail is received of postmark shall be deemed as the date of
notice.
ARTICLE 17 Assignment
17.1 If any party intends to assign this Contract or any part of it
to a third party and such assignment is allowed by law, such party shall give
prior notice to the other parties and must acquire the written consent of the
other parties.
17.2 Except as stipulated in Article 17.1, the Buyer and the End-user
shall not disclose or furnish, directly or indirectly, any information, product
or part supplied by the Seller under this Contract to any third party, locally
or abroad.
ARTICLE 18 Confidentiality, Use of Information, Intellectual Property Right
and Patent
18.1 Intellectual Property Right in respect of Trade Secret
18.1.1 All documents, materials and other information provided
in any form or disclosed by the Seller to the Buyer and
the End-user under this Contract with the indication of
"Limited Use" or "Limited Communication" shall be
regarded as the trade secrets of the Seller (the
"Seller's Trade Secrets") and the intellectual property
right in respect thereof shall remain the property of
the Seller or its authorized party. The Seller and the
End-user (including the branches of the End-user or its
headquarter/branches of the group companies) shall have
the perpetual right to use the Seller's Trade Secrets.
Save for the disclosure under the PRC laws or
regulations or except with the prior consent of the
Seller or System Integrator, such obligation of
confidentiality shall continue to take effect until
December 31 of the fifth year after the termination of
this Contract or the Seller's Trade Secrets are legally
made known to the public, whichever is earlier.
18.1.2 All documents, materials and other information provided
by the Buyer and/or End-user to the Seller in any form
or obtained from the Buyer and/or End-user in any form
due to the execution and performance of this Contract,
including without limitation, index and requirement of
technical performance and any trade secret, shall be
regarded as the trade secrets of the Buyer/End-user (the
"Buyer's Trade Secrets"; for the purpose of this
Article, the "Seller's Trade Secrets" and the "Buyer's
Trade Secrets" shall be collectively referred to as the
"Trade Secrets") and the intellectual property rights in
respect thereof shall remain the property of the Buyer
or End-user or their respective authorized party. The
Seller may only use the Buyer's Trade Secrets for the
performance of its obligation hereunder and shall be
under an obligation to keep the Buyer's Trade Secrets
confidential. Save for the disclosure under the PRC laws
or regulations or except with the prior consent of the
Buyer or End-user, the Seller shall not disclose the
Buyer's Trade Secrets in any manner.
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18.1.3 The Seller or the Buyer/End-user may reproduce or
replicate all or part of the Trade Secrets of the other
parties hereto only when the installation, operation,
administration, inspection and maintenance of the
Contracted Equipment and its system are needed, or the
reproduction or replication of all or part of such Trade
Secrets is required for the discharge of its obligation
hereunder.
18.1.4 When the Seller has discharged all its obligation
hereunder, or the Trade Secrets are no longer required
for the purpose of discharging its obligation hereunder
although all of its obligations have not been fully
discharged, the Seller shall return the Buyer's Trade
Secrets and any copies thereof to the Buyer and/or the
End-user, or destroy them itself by notifying the Buyer
and/or the End-user of such arrangement.
18.1.5 With the prior written consent from the Supplier of the
Trade Secrets, the party who receives such Trade Secrets
in connection with this Contract may disclose to a third
party the same upon receipt of a letter of guarantee
from the third party in relation to the confidentiality
of the Trade Secrets (such guarantee shall confirm the
full compliance with the requirements and conditions
stated in the above written consent), and shall, within
three (3) business days of the receipt of the letter of
guarantee from the above third party, submit the
original copy of such letter to the Supplier of the
trade Secrets.
18.1.6 When a party hereto is required by a competent authority
of the PRC government to make known the Trade Secrets
pursuant to applicable laws or regulations, it shall do
so and will be liable in any way to the other party who
supplies the Trade Secrets. In such event, the party who
is required to make known the Trade Secrets shall notify
the other party who supplies the Trade Secrets of such
disclosure in writing as soon as possible.
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18.2 Intellectual Property Right in respect of Computer Software
The Buyer shall have the perpetual right or sublicence to use
the computer software and programs legally owned or licensed by the Seller that
are provided to the Buyer and the End-user under this Contract (the "Software
and Programs"); the End-user shall have the perpetual right to use the Software
and Programs but such Software and Programs shall in no way be provided to any
third parties. Except with the prior written consent of the Seller, the End-user
shall not reverse-engineer and disassemble the Software and Programs provided by
the Seller hereunder. The Buyer shall have the right to further upgrade or
improve the above Software and Programs by notifying the Seller of its
intention.
The End-user may only use the Software and Programs on the
Contracted Equipment and System in the form of object code. The End-user may
make a copy of such Software and Programs for archiving purpose, such copy shall
carry copyright announcements and confidentiality marks same to the original
Software.
18.3 Patent Right, Trademark Right and Other Intellectual Property
Right
The Seller confirms that it legally owns or has the right to use
all the patent right, trademark right and other intellectual property right in
connection with the Contracted Equipment. It also has the right to license, and
perpetually licenses, the Buyer and the End-user (including the branches of the
End-users or its headquarter/branches of the group companies) to use the above
patent right.
18.4 New Intellectual Property Right
A party hereto carrying technological renovation to the
Contracted Equipment (which means the Seller as a party, and the Buyer and the
End-user as the other party) shall own the new intellectual property right in
respect thereof (for the purpose of this Article, the "New Intellectual Property
Right"), and the other party hereto shall have the perpetual right to use the
New Intellectual Property Right free of charge.
If the Software and Programs are upgraded or improved jointly by
the Parties hereto (which mean the Seller/Technical Support Party as a party,
and the Buyer/End-user as the other party), the intellectual property right in
respect of such upgraded and improved portion shall be jointly owned by the
Parties hereto. If the Software and Programs are further upgraded or improved by
a party hereto, the intellectual property right in respect of such upgraded or
improved portion shall be owned by that party. The other party hereto shall have
the perpetual right to use such intellectual property right free of charge.
18.5 Responsibilities of the Seller
The Seller shall indemnify the Buyer and End-user (including the
branches of the End-user or its headquarter/branches of group companies) against
any damages they suffered as a result of being alleged by a third party for
infringement in connection with their use of the intellectual property right
licensed by the Seller under this Contract within the countries and regions
authorized by the Seller.
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When the above allegation arises, the Buyer/End-user shall
notify the Seller in writing of such allegation in a timely manner.
18.6 All the research results (i.e. application software), copyrights
and patent rights obtained in the course of the performance of this Contract
shall remain the property of the End-user. The Parties hereto shall strictly
observe the Copyright Law of the People's Republic of China and the Regulations
for the Protection of Computer Software. Without the permission of the Buyer,
the Seller shall not apply for the copyright and patent right in respect of such
research results, nor shall it use the research results on any projects other
than the projects of China Unicom.
ARTICLE 19 Trademark
Without written permission of other parties, no Party shall use
or simulate the brand name, trademark, icon, service logo, symbol, code, model
or abbreviation of other parties in advertisements or at public places; no party
shall represent that it possesses the ownership of the brand name, trademark,
icon, service logo, symbol, code, model or abbreviation of other parties.
ARTICLE 20 Modification
20.1 Modification, supplementation and alteration to this Contract
shall be made in writing through consultation among the Parties and subject to
signature by the duly authorized representatives of the Parties. The terms and
conditions so modified, supplemented or altered shall constitute an integral
part of this Contract and shall have the same legal effect as this Contract.
20.2 Expenses and such problems as expenses and engineering schedule
arising out of execution of this Contract due to modification, supplementation
and alteration of this Contract shall be resolved or adjusted through
consultation among the Parties.
ARTICLE 21 Miscellaneous Terms
21.1 This Contract and its contents shall be kept confidential, no
party shall disclose them to any third party without permission of other parties
except where required to be reported to or archived by government agencies in
accordance with law and relevant regulations, or where required to be presented
in accordance with an order of a judicial authority.
21.2 Some obligations of the parties under this Contract, including
the terms and conditions of the Confidentiality, Use of Information and
Assignment, shall survive the termination or expiry of this Contract.
21.3 Appendices of this Contract constitute an integral part of this
Contract. In case of discrepancy between any Appendix and the main body of this
Contract, the main body of this Contract shall prevail.
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ARTICLE 22 Interface Requirements
22.1 The Seller is obligated to provide technical support for
interconnection between the Contracted Equipment and System and equipment and
system supplied by other vendors. All expenses for such technical support have
been included in the Total Purchase Price.
ARTICLE 23 Tax
23.1 All taxes and duties in connection with the execution of the
Contract or the purchase, occupation and use of the Contracted Equipment levied
by the Chinese Customs and other taxation authorities on the Buyer or the
End-user in accordance with the tax laws of China shall be borne and paid by the
Buyer or the End-user.
23.2 All taxes and duties in connection with and in the performance
of the Contract levied by Chinese Customs and other taxation authorities on the
Seller according to Chinese tax laws and regulations shall be borne and paid by
the Seller.
23.3 All taxes and duties in connection with and in the performance
of the Contract levied by the Customs and other taxation authorities on the
Seller shall be paid by the Buyer or End-user on behalf of the Seller in
accordance with the regulations of the PRC department. The Buyer or End-user
shall take the responsibility to pre-pay the withholding tax and deduct the
corresponding withholding tax fee from the relevant payment to the Seller.
23.4 All taxes and duties incurred outside China in connection with
and in the performance of the Contract shall be borne and paid by the Seller.
ARTICLE 24 Governing Law
The Contract shall be governed in accordance with the laws of
China.
ARTICLE 25 Y2K Warranty
25.1 The Seller warrants the time and date shall not affect normal
operation and maintenance of system.
25.2 The Contracted Equipment and System shall use four-digit
algorism to indicate year or, if the condition does not enable such indication,
may use two-digit algorism for the time being (provided that four-digit algorism
shall be used therein after 2010); provided, however, that the century value
shall be accurately displayed and the leap years after Y2K be properly
processed. The Contract System and Equipment that has adopted either of the
above algorism in year indication shall be able to accurately identify their
indication ways in connection with exchange of any information with the
incorporation of any year information with such equipment or system that has
adopted other year indication manner.
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ARTICLE 26 Contents and Term of Contract
26.1 This Contract will become effective upon the date of execution
by the legal representative or duly authorized representative of the Parties and
shall continue to take effect until the Parties hereto pay all outstanding
amounts and the Warranty period is ended.
26.2 Appendices of this Contract constitute an integral part of this
Contract, and have the same legal force as the main body of the Contract.
26.3 This Contract shall be in triplicate with the Buyer, the
End-user and the Seller each holding one original counterpart. The Contract may
have certain copies.
26.4 This Contract is executed in Chinese.
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Signature Page
Buyer: Unicom Import & Export Company Limited
Legal Signatory/Authorized Signatory: (Signature)
Signature Date:
End-user: UNICOM New Times Mobile Telecommunications Company Limited
Legal Signatory/Authorized Signatory: (Signature)
Signature Date:
Seller: Hurray! Times Communications (Beijing) Ltd.
Legal Signatory/Authorized Signatory: (Signature)
Signature Date:
Contract No.:CUIEC - 04CIN1407
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