EXHIBIT 4.46
SUPPLY CONTRACT
FOR
CAPACITY EXPANSION OF
SUBMARINE CABLE SYSTEM
TANJUNG PANDAN -- PONTIANAK
BETWEEN
PT TELEKOMUNIKASI INDONESIA, TBK.
AND
NEC CORPORATION
NO.: X.XXX. /HK.910/UTA-00/2005
This Contract is made and entered into this of July 2005, by
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and between the Parties:
I. PT TELEKOMUNIKASI INDONESIA, TBK, a telecommunication services and network
provider having its domicile at Xxxxx Xxxxxx Xx.0, Xxxxxxx-00000,
Xxxxxxxxx, in this this Contract duly represented by S A R W O T O, in his
capacity as HEAD OF TELKOM LONG DISTANCE DIVISION, hereinafter in this
Contract referred to as TELKOM; and
II. NEC CORPORATION, a company established under the laws of Japan,
domiciled at 7-1, Shiba 5-chome Xxxxxx-xx, Xxxxx 000-0000, Xxxxx,
hereinafter referred to as CONTRACTOR, in this Contract duly represented by
XXXX XXXXXXXX, in his capacity as GENERAL MANAGER OF SUBMARINE NETWORKS
DIVISION, NEC CORPORATION
TELKOM and CONTRACTOR are individually referred to as "PARTY" and collectively
as the "PARTIES".
WITNESSETH
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a. whereas TELKOM through its letter Ref.No.TEL.895/LG.000/DLD-00/2004 dated
17 December 2004 has issued direct appointment with sold the Request for
Proposal (RfP) Document to the CONTRACTOR;
b. whereas to respond the TELKOM's letter as mentioned in point a. above, the
CONTRACTOR through its letter dated 28 December 2005 has submitted a
proposal to TELKOM cq. Tender Committee;
c. whereas TELKOM trough its letter Ref. No. : TEL.257/TK.220/DLD-51/2005
dated 10 May 2005, has appointed CONTRACTOR to execution the Procurement
and Implementation of Expansion Capacity Tanjungpandan-Pontianak which is
amounting to USD.42,713,568 and Rp.154.220.640.002 (equivalent to total
Rp.559.145.264.642 excluding 10% VAT with exchange rate is USD.1 = Rp 9,480
dated April 8, 2005);
d. whereas CONTRACTOR through its commitment letter dated 11 May 2005 hereby
commit and agree to carry out the Works expressed its consent to the price
agreed and ability to execute the Works as specified in this Contract in
accordance with point c. mentioned above;
e. whereas between TELKOM and CONTRACTOR has been held the contract
discussions and negotiation in accordance with Minutes of Meetings on
12-31 May 2005;
NOW THEREFORE, based upon the above-mentioned considerations, the Parties hereto
have agreed to bind each other into this Contract under the following terms and
conditions:
CHAPTER I
GENERAL TERMS AND CONDITIONS
ARTICLE 1
DEFINITIONS
a. "CONTRACT" shall mean the agrement entered into between TELKOM and
CONTRACTOR, as recorded in the Contract form signed by the Parties
including all attachments thereto and amendment
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documents incorporated by reference therein;
b. "PROJECT" means the Works to be undertaken by CONTRACTOR for the
procurement and installation of the System, Expansion Capacity Submarine
Cable Tanjungpandan-Pontianak to be carried out on single responsibility
basis.
c. "TELKOM" means PT. (PERSERO) TELEKOMUNIKASI INDONESIA TBK, the public state
owned company of Indonesia for public telecommunication services, acting as
the owner of the Project.
d. "CONTRACTOR" means a contractor who has signed the Contract with TELKOM for
the implementation of the Project on single responsibility basis.
e. "SUB-CONTRACTOR" means any party or parties approved by TELKOM having a
direct contract or contracts with CONTRACTOR for the performance of any
part or parts of the Works to be executed under the Contract.
f. "TURNKEY BASIS" means the Scope of Work where upon the effective date of
this Contract, CONTRACTOR shall be fully and solely responsible for the
survey, design, development, manufacture, delivery, supply, installation,
integration and commissioning of the System, and the remedying of any
defects, so as to make the System ready for service and the CONTRACTOR
shall also do everything necessary as reasonably may be inferred from this
Contract as being required of CONTRACTOR to perform all of its obligations
under this Contract.
g. "WORKS" means the objective of the Contract, i.e., supply of Goods, survey,
design, manufacturing, transportation, installation / construction,
permits, testing, commissioning, integrating, complete and operational
System as required, documentation, training and any other associated
services or activities whatsoever for the execution of the Project under
the Contract by the CONTRACTOR up to the Final Acceptance Certificate.
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h. "GOODS" means and include all kinds of machinery, apparatus, materials,
articles, spare parts, necessary tools and test equipment, relevant
drawings, operation manuals, and handbooks which is required by CONTRACTOR
to fulfill CONTRACTOR's obligation under this Contract.
i. "SERVICES" means the CONTRACTOR's services and activities such as survey,
design, installation/ construction, progress/ quality control, testing,
reporting, commissioning and training which the CONTRACTOR is required to
execute under the Contract.
j. "REQUEST FOR PROPOSAL" means the documents i.e. "General Conditions",
"Technical Specifications" and any additional notice which was given to the
CONTRACTOR.
k. "CONTRACT PRICE" means the price including any applicable Value Added Tax
to the CONTRACTOR for completion of the Works under this Contract.
l. "TELKOM'S PROJECT MANAGER" means TELKOM's staff duly authorized by TELKOM
to act as their representative for the execution of the Project.
m. "CONTRACTOR'S PROJECT MANAGER" means CONTRACTOR's person duly authorized by
CONTRACTOR to act as their representative for the execution of the Project.
n. "DEFAULT" means any of negligent act or failure in the implementation of
the Project in respect of the Contract.
o. "SYSTEM" means the capacity expansion of 10Gbit/s x 2 wavelengths x 1 fiber
pair for TELKOM's Exisiting System.
p. "TELKOM'S EXISTING SYSTEM" means TELKOM's exisiting Tanjung Pandan --
Pontianak submarine cable system
q. "TECHNICAL SPECIFICATION" shall mean technical specifications as mutual
agreed by both Parties and as mentioned in the Attachment-7 of this
Contract.
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r. "SITE" means a place or places to which the Goods are to be delivered or
where the Works are to be performed by the CONTRACTOR.
s. "INTEGRATION" shall mean the integration between the System provided by
CONTRACTOR and/or TELKOM's Exisitng System in accordance with the Technical
Specification.
t. COMMISSIONING" means activities that shall be done by the CONTRACTOR in
preparation of the Acceptance Test.
u. "ACCEPTANCE TEST (AT)" shall mean physical and electrical charateristic
checking of the installation and materials, and testing of System to test
the proper functionality of each Site as mentioned in Article 27 of this
Contract of the Goods installed;
v. "ACCEPTANCE TEST REPORT" shall mean written document being made and signed
by Parties hereto through their respective duly representatives, certifying
the Acceptance Test has been completed and stating the results;
w. "ACCEPTANCE TEST CERTIFICATE" (ATC hereinafter referred to as BAUT) means
an official written statement signed by acceptance test team assigned by
both Parties, indicating that the Works have been performed, completed,
tested satisfactorily and can be operated commercially in accordance with
the Contract. BAUT shall be released for System;
x. "GOODS ARRIVAL CERTIFICATE" means an official written statement issued by
TELKOM's Project Manager indicating that all of the relevant Goods have
arrived at a Site.
y. "SYSTEM ACCEPTANCE CERTIFICATE (SAC) / FIRST HAND-OVER CERTIFICATE
(XXXX-I)" means an official written statement issued by TELKOM's Project
Manager indicating that the Works have been performed, completed and tested
satisfactorily, and handed over from CONTRACTOR to and accepted by TELKOM
in accordance with the Contract
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and starting of warranty period;
z. "FINAL ACCEPTANCE CERTIFICATE OR SECOND HAND-OVER CERTIFICATE (XXXX-2)"
means an official written statement issued by TELKOM's Project Manager
indicating that the warranty period of 5 (five) years for System is over
and all CONTRACTOR's obligations has been fulfilled under this Contract;
aa. "CONSTRUCTION EQUIPMENT" means the equipment, tools and machinery including
specialized test equipment brought to the Site by the CONTRACTOR for the
execution of the Contract, but not to be purchased by TELKOM.
bb. "INSPECTOR" means the representative(s) or person(s) duly authorized by
TELKOM to inpect the Goods and Services under the Contract.
cc. "EFFECTIVE DATE OF CONTRACT" or "EDC" means the date on which contract is
signed by TELKOM and the CONTRACTOR in accordance with Article 55.
dd. "INFORMATION" means information whether written or oral, including but not
limited to documentation, specifications, reports, data, notes, drawings,
models, patterns, samples, software, computer outputs, designs, inventions
whether patent can be obtained or not and know how.
ee. "MONTHS" and "DAYS" denote Gregorian calendar months and calendar days,
respectively.
ff. "XXXX OF QUANTITY" or "BOQ" means the xxxx of quantities as set out in
Attachment-1.
ARTICLE 2
COUNTRY OF ORIGIN
2.1 All Goods supplied under the Contract shall have their origin in the member
countries and territories eligible under the rules of the Government of
Indonesia.
2.2 For the purpose of this Article "origin"
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means the place where the Goods are produced. Goods are produced when a new
product is commercially recognized as a result of manufacturing, processing
of substantial and major assembling of components, and is substantially
different in basic characteristics or in purpose or utility from its
components.
2.3 The origin of the Goods is distinct from the nationality of the CONTRACTOR.
ARTICLE 3
SCOPE OF WORKS
3.1 The Scope of this Contract covers the procurement and installation of the
System which encompass the Sites according to the configuration, Xxxx of
Quantity, capacity plan, Plan of Work, and Technical Specification, etc. as
set out in this Contract.
3.2 For the purpose of the implementation of the Works, CONTRACTOR shall carry
out at least the followings:
a. Survey, design and engineering;
b. Procurement and or manufacturing of equipment, spare part, tools and
measuring equipments and its accessories and delivery of the equipment
to the Site;
c. Implementation, integration of System to TELKOM's Existing System;
d. Commisioning and testing;
e. Warranty and long term support;
f. All risk insurance
g. Training.
h. Documentation.
3.3 The Scope of Works shall be adjusted and executed under the amendment
pursuat to Articles 37 and 38 of this Contract.
3.4 This Contract is covering various steps involved in the procurement and
installation of the System Capacity Expansion Submarine Cable
Tanjungpandan-Pontianak on a Turnkey basis.
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ARTICLE 4
STANDARDS
The Goods supplied under this Contract shall conform to Attachement-7 (Technical
Specification). When no standard is detailed therein, then the latest standards
ITU-T at the time of the Contract shall be applied. In case, both of standars
not obtained than the country of origin standards which are issued by the
relevant institution shall apply.
ARTICLE 5
USE OF CONTRACT DOCUMENTS AND INFORMATION
5.1 The CONTRACTOR shall not, without TELKOM's prior written consent,
disclose the Contract, or any provision thereof, or any specification,
plan, drawing, pattern, list, schedule, sample or information furnished by
or on behalf of TELKOM in connection therewith, to any person other than a
person employed by the CONTRACTOR in the performance of the Contract.
Disclosure to any such employed person shall be made in confidence and
shall extend only so far as may be necessary for the purpose of performance
of the Works.
5.2 The CONTRACTOR shall not, without TELKOM's prior written consent, make
use of any document or information enumerated in Article 5.1 except for
purpose of performing the Contract.
5.3 Any documents, mentioned in Article 5.1 other than the Contract itself,
shall remain the property of TELKOM and shall be returned (and all copies)
by the CONTRACTOR to TELKOM on completion of the Contract if so required by
TELKOM.
ARTICLE 6
PATENT RIGHTS
6.1 The CONTRACTOR shall indemnify TELKOM against all third party claims of
infringement of patent, trademark, copyrights or industrial design rights
arising from the use of the Goods, the performance of the Works or the
operation of the System, or any part thereof in Indonesia.
6.2 The CONTRACTOR shall only have the obligations as set out in this Article
6, if
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TELKOM: a) gives CONTRACTOR prompt written notice of any alleged or actual
claims, b) allows CONTRACTOR on its request to directly or indirectly
control the defense and/or settlement of such claim, c) does not consent to
any judgment or decree or does any other act in compromise of any claim
without first obtaining CONTRACTOR's written consent, and d) provides
CONTRACTOR all reasonable cooperation and information as may be requested
by CONTRACTOR.
6.3 Furthermore, such indemnity shall not cover such infringement or claim
arising from:
1) The CONTRACTOR's adherence to TELKOM's direction to use materials or
parts of TELKOM's selection; or
2) Such material or parts furnished to the CONTRACTOR by TELKOM, other
than in each case, a) items of the CONTRACTOR's design or selection or
b) the same as any of the CONTRACTOR's commercial merchandise or in
processes or c) machines of the CONTRACTOR's design or selection used
in the manufacture of such standard products or parts; or
3) Use of the Goods other than for the purposes indicated in, or
reasonably to be inferred from, this Contract or in conjunction with
other products; or
4) Modification of the Goods by TELKOM, without prior expressed written
approval by CONTRACTOR.
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ARTICLE 7
PERFORMANCE AND WARRANTY BONDS
7.1. The performance bond shall be established in US Dollar currency and shall
be in surety bond or bank guarantee issued by insurance company or bank
according to TELKOM requirement (Bank Mandiri, BNI 46, Bank Rakyat
Indonesia Bank BUKOPIN, Bank Mega, Ban NISP, Bank BCA, Bank Niaga,
Citibank, Standard Chartered Bank, ABN AMRO, HSBC, Asurandi JASINDO,
Asuransi Kredit Indonesia, Asuransi Eksport Indonesia) amounting of 5%
(five percent) of the Contract Price.
7.2. The performance bond shall be submitted by CONTRACTOR to TELKOM within 7
(seven) calendar days before signing of this Contract, address to:
PT Telekomunikasi Indonesia, Tbk.
Att. Senior Manager of Finance
TELKOM LONG DISTANCE DIVISION
Xxxxx Xxxxxx Xx. 0, 0xx Xxxxx
Xxxxxxx 00000
7.3. The performance bond shall be released by TELKOM to CONTRACTOR after the
issuance of XXXX-I.
7.4. In the event CONTRACTOR fails to accomplish the Works or its parts in
accordance with the terms and conditions of this Contract, due to gross
negligence and/or willful misconduct of CONTRACTOR, then CONTRACTOR and
TELKOM shall meet to review the situation. If the CONTRACTOR failed to make
good such default, then TELKOM is entitled to forfeit the performance bond
with prior written consent from CONTRCATOR which shall become property of
TELKOM.
7.5. The release of peformance bond as described in Article 7.4 above, no waive
of CONTRACTOR's obligation as described in Articles 22.1 of this Contract.
7.6. In the event of suspension of the Contract as set forth in Article 31.7,
the performance
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bond shall be released by TELKOM to the CONTRACTOR. (usulan NEC) In the
event that suspension of the Contract as set forth in Article 31.10, the
performance bond shall be released by TELKOM to the CONTRACTOR.(the
performance bond will just released to contractor when there is the
termination of the contract caused of default by TELKOM). (usul xxxx X
Xxxxx)
7.7. The warranty bond shall be in form of surety bond or bank guarantee issued
by insurance company or bank according to TELKOM's requirement mentioned in
Article 7.1 amounting of 5% (five percent) of the Contract Price.
The warranty bond shall be valid for five (5) years from the date of
XXXX-I.
7.8. The CONTRACTOR shall submit to TELKOM the warranty bond together with the
invoice.
ARTICLE 8
AUTHORIZED REPRESENTATIVES
8.1 TELKOM will appoint a project manager who shall be duly authorized to act
on their behalf for the excution of the Project.
8.2 The CONTRACTOR, immediately after the signing of the Contract, shall duly
appoint his Project Manager and notify TELKOM for approval thereof. The
curriculum vitae of the CONTRACTOR's Project Manager shall be submitted to
TELKOM together with the notification.
8.3 The CONTRACTOR's Project Manager shall be duly authorized to act on behalf
of the CONTRACTOR with respect to any and all matters relating to the
performance of the Contract, and he shall give full technical information
to TELKOM. The CONTRACTOR's Project Manager shall be stationed in Indonesia
during the period commencing not later than thirty (30) days after the
Effective Date of the Contract and terminating after the completion of the
CONTRACTOR's obligations under the Contract.
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ARTICLE 9 CONTRACTOR'S
RESPONSIBILITY
9.1 The CONTRACTOR shall be fully responsible to conduct desktop study,
permits, design, develop, engineering, manufacture, supply, install, and
test the System in accordance with all the terms and conditions contained
in the Contract including any integration of the System and for ensuring
that the System is fully compliant with the Contract and the CONTRACTOR
shall not claim any additional payment nor be relieved from any obligation
imposed on it by this Contract on grounds of any information supplied by
TELKOM on any matter whatsoever related to this Contract. In the event the
Goods are to interoperate with third party's equipment, TELKOM shall be
obligated to provide the necessary interfaces of the respective third
party's equipment.
9.2 The CONTRACTOR shall be deemed to have reviewed the Works as a whole and in
detail and to have fully satisfied itself of the feasibility and
practicability thereof.
9.3 In addition to the requirements for the provision of technical information
described in the Contract, the CONTRACTOR shall, upon request, provide the
TELKOM with such additional technical information in connection with the
Contract as the TELKOM may reasonably require.
9.4 In case any damage, loss or injury happens to the Goods and Services, or to
any part thereof, from any cause whatsoever, except the "excepted risks" as
defined in Article 9.6 while the CONTRACTOR shall be responsible for the
care thereof, the CONTRACTOR shall, at his own cost, repair and make good
the same, so that the Works shall be in good order and condition and in
conformity in every respect with the requirements of the Contract.
9.5 In the event of any damage, loss or injury happening from any of the
excepted risks, the CONTRACTOR shall, if and to the extent required by
TELKOM and subject to Article 46, repair and make good the same as
aforesaid at the cost of each party. The CONTRACTOR shall also be liable
for any
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damage to the Works occasioned by him in the course of any operation
carried out by him for the purpose of completing any outstanding Works or
complying with his obligations according to time completion under Article
31.
9.6 The "excepted risks" are war, hostilities (whether war be declared or not),
invasion, act of foreign enemies, rebellion, revolution, insurrection or
military or usurped power, civil war, or unless solely restricted to
employees of the CONTRACTOR or of his Sub-contractors and arising from the
conduct of the Works, riot, commotion or disorder, or use or occupation by
TELKOM of any part of the Works, or ionizing radiations or contamination by
radio activity from any nuclear fuel or from any nuclear waste from the
combustion of nuclear fuel, radio-active toxic explosive, or other
hazardous properties of any explosive, nuclear assembly or nuclear
component thereof, pressure waves caused by aircraft or other aerial
devices traveling at sonic or supersonic speeds, or any such operation of
the forces of nature as an experienced CONTRACTOR could not foresee or
reasonably make provision for or insure against all the excepted risks.
9.7 The CONTRACTOR shall not take advantage of any apparent error or omission
in the Contract documents. In the event CONTRACTOR discovers any error or
discrepancy, CONTRACTOR shall immediately call upon TELKOM for their
interpretation, and such error or discrepancy shall be corrected upon the
mutual consent between TELKOM and the CONTRACTOR.
9.8 The CONTRACTOR shall pay due attention to the Works and shall cooperate
with TELEKOM's Project Manager, TELKOM's staffs, and further with other
CONTRACTORs having connection with the execution of the Project.
9.9 The CONTRACTOR shall conform with Attachment-2 (Plan of Work).
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9.10 The CONTRACTOR shall attend at the CONTRACTOR's own expenses such meetings
with the TELKOM representatives at such times as may be required by the
TELKOM.
ARTICLE 10
RESPONSIBILITY OF TELKOM
10.1 The duties of TELKOM's Project Manager will supervise the Works and examine
workmanship of CONTRACTOR employed in the execution of the Works.
10.2 Any written instruction or approval given by TELKOM's Project Manager to
the CONTRACTOR within his capacity shall refer to the Contract and bind the
CONTRACTOR as if it had been given by TELKOM.
ARTICLE 11
PACKING
11.1 The CONTRACTOR shall provide such packing of the Goods as is required to
prevent their damage or deterioration during transit to their final
destination as indicated in the Contract. The packing shall be sufficient
to withstand, without limitation, rough handling during transit, exposure
to extreme temperatures, briny environment, and condensation /
precipitation during transit and open storage. Packing case size and
weights shall take into consideration, where appropriate, the remoteness of
the Goods final destination and the absence of heavy handling facilities at
all points in transit.
11.2 Any case, crate, bundle, and whatever method of packing the Goods for
shipping and/or delivery, shall bear the following identification legibly
and indelibly marked on at least 2 (two) external sides or places:
PT. (Persero) Telekomunikasi Indonesia, Tbk
Att.: TELKOM Long Distance Division
Procurement and Installation of Capacity Expansion of Submarine Cable
System Tanjung Pandan-Pontianak
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CONTRACT NO. :
LICENSE NO. :
SITE :
CASE NO. : (A/B/C)*)
PORT OF DESTINATION :
INVOICE NO. & DATE :
NET WEIGHT :
GROSS WEIGHT :
VOLUME :
(LENGTH/WIDTH/HEIGHT)
*) A : Sequence No. of cases
B : Total No. of cases in shipment
C : Sequence No. of shipment
The detailed address shall be given to CONTRACTOR.
11.3 The CONTRACTOR shall comply with any subsequent instruction given or
alteration required by TELKOM pertaining to packing, marking, and
documentation inside and outside of any pieces of shipment or delivery.
ARTICLE 12
DELIVERY AND DOCUMENTS
12.1 Delivery of the Goods shall be made by the CONTRACTOR in accordance with
the Contract.
12.2 All physical deliveries covered by this Project shall be accompanied by a
consignment note, which includes:
a. Name and registered office of CONTRACTOR;
b. Contract number;
x. Xxxx of shipment and delivery;
d. Country of Origin;
e. Quantities included.
12.3 TELKOM shall visually inspect the Goods on delivery to the installation
Site based on a copy of the Goods shipping documents and TELKOM's Project
Manager shall promptly issue a Goods Delivery Certificate if there is no
obvious physical damage to the Goods and the quantity of Goods delivered is
correct according to the supporting documentation provided.
12.4 For the purpose of the Contract, "FOB", "CIF" and "DDP" used to describe
the obligations of the Parties shall have the
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meanings assigned to them in the current edition of the International Rules
for the Interpretation of the Trade Terms published by the International
Chamber of Commerce, Paris, and commonly referred to as INCOTERMS 2000.
ARTICLE 13
TRANSPORTATION AND STORAGE OF GOODS
13.1 Partial shipment is acceptable, but transshipment is not allowed. The word
"transshipment" assigned herein means that the Goods shipped on board of
the ocean vessel at the port of origin are transferred to another ship at a
port of the country of origin or a port in any third country before they
reach the port of the country of final destination. The CONTRACTOR is
encouraged, to the extent practicable and reasonable, to utilize Indonesian
Flag carrier vessels. In the event transshipment is urgently required by
CONTRACTOR, then approval for transshipment shall be obtained by CONTRACTOR
from TELKOM prior to transhipment.
13.2 The Goods delivered to Site shall be stored in the CONTRACTOR's storage
area until actually required for incorporation of the Works. The CONTRACTOR
shall be responsible for the safety of the Goods during storage. The
CONTRACTOR shall be aware of the high humidity and its effects to Goods
subject to corrosion in storage areas in Indonesia.
13.3 The CONTRACTOR shall be responsible for the handling and safe movement of
the Goods during off-loading from and loading into transport, until the
completion of the Contract.
13.4 The CONTRACTOR shall be responsible for the payment of all expenses for
clearing the Goods through the port of arrival, for transportation to Site
and storage.
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ARTICLE 14
INSURANCE
14.1 Without limiting its obligations and responsibilities, the CONTRACTOR
shall, prior to the commencement of any Work, and at its own expense,
provide evidence within seven (7) calendar days from the signing of the
Contract, insurance to cover its liabilities throughout the Contract and in
the joint name of TELKOM and the CONTRACTOR as the insured:
a. (i) the Works and any work in progress of every kind required for the
execution, testing and completion of the Works including, but not limited
to, the completed item to the full value of such Works and any work in
progress executed from time to time.
(ii) all appliances, instruments or things of whatsoever nature required in
or pertaining to the execution, testing and completion of the Works,
constructional plant, the materials and other things brought on to the Site
by the CONTRACTOR to the full value of such constructional plant, materials
and other things, against all losses or damages from whatever cause in
respect of all risks including, but not limited to, marine cargo (Note 1),
sea bed (Note 2) and war risk (Note 3) arising for which it is responsible
under the terms of the Contract and in such manner that TELKOM and the
CONTRACTOR are covered during the period of construction of the Works;
b. against any damage, loss or injury which may occur to any property
(including that of TELKOM) or to any person (including any employee of
TELKOM) as a result of the execution of the Works or temporary work;
c. against any damage or compensation payable under statute or at law in
respect or in consequence of any accident or injury to any person in the
employment of the CONTRACTOR or any Sub-contractor. The CONTRACTOR shall
indemnify and keep indemnified TELKOM against all such damages,
compensation, claims, demands, proceedings, costs, charges and
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expenses, whatsoever in respect thereof at its own expenses;
d. a general liability policy, sufficient to cover its liability under the
Contract until the end of the warranty period or any extension thereto.
The total prices contained in total amount of Contract shall include any premium
amounts paid or to be paid by the CONTRACTOR for the insurance coverage
hereinabove stated.
Note 1 Marine cargo or equivalent coverage is required to protect against all
risks of physical loss or damage to the cable, repeaters, terminal
station equipment and other equipment to be included in the System (other
than war risks) beginning with the date when each such equipment is ready
for shipping and ending when the terminal station equipment is delivered
to the terminal stations.
Note 2 Sea bed or equivalent coverage is required to protect against all risks
of physical loss or damage to the equipment described in Note 1 above
(other than war risks) from the time coverage under Note 1 above ends
until the issuance of the Certificate of System Acceptance.
Note 3 War risks or equivalent coverage is required to protect against damage
to, seizure by and/or destruction of the System by means of war, piracy,
takings at sea, other warlike operations and "excepted risks" as stated
in Article 9.6 until the issuance of the System Acceptance Certificate.
14.2 Upon the issuance of each policy relative to such insurance and not later
than fifteen (15) calendar days prior to each renewal thereof, the
CONTRACTOR shall furnish TELKOM with evidence acceptable to TELKOM
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including but not limited to a copy of the insurance policy and insurance
certificate, evidence that the relevant premiums have been paid and that
the said policy is and will continue to be in full force, and an
undertaking letter from the insurance company that the provisions included
above in Article 14.1 are in effect.
14.3 For all insurance to be effected, the CONTRACTOR is encouraged, to the
extent practicable and reasonable, to use an Indonesian government
insurance company.
14.4 The insurance shall be effected, wherever applicable, in such a manner that
TELKOM and the CONTRACTOR are covered:
a. for the period specified in Article 31 of this Contract.
b. during the warranty period for any loss or damage arising from a cause
occurring prior to the commencement of the warranty period, and
c. for any loss or damage occasioned by the CONTRACTOR in the course of
any operation carried out by him for the purpose of complying with his
obligations under Article 29.
14.5 If the CONTRACTOR shall fail to effect and keep in force the insurance
specified herein, TELKOM may effect and keep in force any such insurance
and pay such premium or premiums as may be necessary and from time to time
deduct the amount so paid by TELKOM from any money due or which may become
due to the CONTRACTOR, or recover the same as a debt due from the
CONTRACTOR. The CONTRACTOR shall be liable to TELKOM for the full
consequences of his failure to insure under this Contract.
14.6 The CONTRACTOR shall furnish TELKOM with a copy of any insurance policy to
be effected under the Contract upon TELKOM's request. The CONTRACTOR shall
further furnish TELKOM with draft copies of his proposed contracts of
insurance immediately after the receipt of notification of award and
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formal copies immediately after such insurance come into effect.
14.7 Unless otherwise specifically agreed upon by the Parties, it shall be the
responsibility of the CONTRACTOR to notify the insurance company, and
proceed with all claims arising from any damage or loss of the Goods and
Works covered by the insurance on behalf of and for TELKOM.
14.8 All money received under the insurance policy either by the CONTRACTOR or
by TELKOM shall be applied towards the replacement or repair of the Goods
and/or the Works found missing or damaged. The CONTRACTOR shall be
responsible for replacement or repairing of the items within the
settlement.
14.9 The CONTRACTOR shall indemnify TELKOM against all claims, losses,
expenses, etc. arising out of or resulting from any default by the
CONTRACTOR in complying with the requirements of this Article.
14.10 Marine Insurance.
Marine Insurance of the Goods shall be effected in the name of CONTRACTOR
from "warehouse to warehouse" on "All Risks" basis including war risks and
strike Articles.
14.11 Local Transportation Insurance.
For Goods supplied from within Indonesia, insurance for local
transportation shall be effected in the name of CONTRACTOR in a full
amount of the ex-factory value of the Goods from the place where the Goods
are shipped to a designated Site.
14.12 CONTRACTOR's All Risks Insurance.
CONTRACTOR's All Risks Insurance shall be effected prior to commencement
of the Works in the name of CONTRACTOR to cover all risks other than the
excepted risks as mentioned in Article 9.6 of during the execution of the
Works against physical loss of or damage to all Goods and Works to the
full value until the issue of System Acceptance
20
Certificate, as security for repairment of the Work.
14.13 Third Party Liability Insurance
Third party liability insurance shall be effected prior to commencement of
the Works to insure against the CONTRACTOR's liability for any material or
physical damage, loss or injury which may occur to any property, including
that of TELKOM or to any person, including any employee of TELKOM, by or
arising out of the execution of the Works or in the carrying out of the
Contract.
14.14 Workmen's Compensation Insurance
Prior to commencement of the Works, the CONTRACTOR shall effect and shall
maintain during the period of Contract, Workmen's compensation insurance
for all personnel employed by him and the people who work with CONTRACTOR,
in connection with the Works, as security for compensation benefits
pursuant to the applicable laws of Indonesia against the Works related to
injury or employer's liability.
ARTICLE 15
TRANSFER OF TITLE
15.1 The transfer of title of the System from CONTRACTOR to TELKOM shall take
place when the System Acceptance Certificate has been issued by TELKOM.
The transfer of title shall not absolve or release the CONTRACTOR from its
obligations and its liabilities under the Contract.
15.2 Upon transfer of title of the System to TELKOM, the CONTRACTOR warrants
that the System is free from valid liens, claims, charges, encumbrances
and security interests arising by and through the CONTRACTOR and/or under
its government's rules and regulations.
15.3 The transfer of title from CONTRACTOR to TELKOM shall take place when
System Acceptance Certificate has been issued by TELKOM and commencing the
CONTRACTOR's responsibility for the
21
Warranty obligation as mentioned in Article 29.
15.4 Upon the transfer of title of the System to TELKOM as described in Article
15.3, the CONTRACTOR also warrants that the System has fulfilled all
statutory requirements and permits including but not limited to any
governmental, non-governmental and crossing permits, with respect to the
performance of the Works.
ARTICLE 16
FAMILIARITY WITH SITE AND WORKS
16.1 The CONTRACTOR shall be deemed to have familiarized himself with the nature
of Site of the Works, the general and local conditions and regulations of
Site and all other matters which can in any way affect the Works and Time
of Completion under the Contract.
16.2 The CONTRACTOR shall be deemed to have satisfied himself at the time of
Contract as to the correctness and sufficiency of his price stated in the
price schedule which shall cover all his obligations under the Contract for
proper performance, completion and maintenance of the Works. It is entirely
the CONTRACTOR's responsibility for any errors in the computation or
summation of the price schedule or for any incorrect perception of the
Scope of Works and for the quality of the System to be attained at the
completion of the Project. TELKOM will not compensate the CONTRACTOR for
any financial loss, or for any errors discovered after the bid submission
or during the execution of the Contract.
16.3 The CONTRACTOR shall, by careful examination, satisfy himself in respect of
all pertinent conditions which may in any manner affect the execution of
the Works, such as, but not limited to, the nature and location of the
Works to be performed, the character, quality and quantity of the Goods to
be delivered, the CONTRACTOR's facilities including the construction
equipment to be used, labor condition, transportation conditions and
general and local laws and regulations. The
22
CONTRACTOR will ensure that any allowance for all the foregoing factors and
all other risks, conditions or other circumstances has been included in the
Contract Price. No claim shall be considered for extra costs or extensions
of time due to any difference between the actual conditions and those which
may have been anticipated by the CONTRACTOR.
ARTICLE 17
SITE SURVEY AND DESIGN/DRAWING
17.1 The CONTRACTOR shall at his own expense conduct Site survey to perform all
CONTRACTOR's obligations in this Project, review the plans furnished by
TELKOM and prepare the installation designs/ drawings and Xxxx of Quantity.
17.2 The installation designs/drawings shall be prepared with due consideration
of economic and quality aspect of the System, fully reflecting the Site
conditions.
17.3 Survey reports and installation designs/drawings shall be submitted to
TELKOM for approval, section by section where applicable, within such time
as specified in Attachment-7 (Technical Specification).
17.4 TELKOM's approval of survey reports and installation designs/ drawings
shall not relieve the CONTRACTOR of any of his obligation under the
Contract.
17.5 If, during the execution of the Works, modification of the CONTRACTOR's
installation designs / drawings becomes necessary, the CONTRACTOR shall
notify TELKOM of his finding at the Site and obtain approval for such
modifications from TELKOM. Any modifications of designs/ drawings shall be
made without extra costs to TELKOM.
17.6 Except for the CONTRACTOR's own reason, any increase or decrease of the
Contract Price, occasioned by variation in quantities of the Goods
installed and the Works performed based on modification of
23
designs / drawings approved or instructed by TELKOM, shall be equitably
adjusted as mentioned in Article 37.
17.7 CONTRACTOR shall prepare the detailed design and the installation drawings
for all the System and facilities based on the Technical Specifications and
site survery result.
Such design and installation drawings shall be submitted to TELKOM's
Project Manager at least one (1) month after Design Review Meeting.
TELKOM's Project Manager shall give CONTRACTOR approval for such design and
installation drawings within fourteen (14) calendar days after the
submission.
17.8 If TELKOM's Project Manager requires to modify such design and installation
drawings after approval pursuant to Article 17.7 above, CONTRACTOR shall
submit to TELKOM's Project Manager modification application by clarifying
its scope. Such modification can be made only when it approved in writing
by TELKOM's Project Manager. Both of increase or decrease of the Contract
Price due to such modification shall be followed by the Contract amendment.
ARTICLE 18
PERMITS AND AUTHORIZATIONS
18.1 The CONTRACTOR shall be responsible to obtain permits and authorizations
from the government and or the third parties when deemed to be necessary
for the execution and finishing the Works.
18.2 TELKOM shall assist the CONTRACTOR, sub-contractor(s) and their
non-Indonesian personnel in obtaining in Indonesia residence/work permits
by issuing sponsorship letters. For this purpose, list of expatriate
personnel assigned to Indonesia on a full time basis, shall be submitted to
TELKOM within 30 (thirty) days prior to their arrival in Indonesia. Such
list shall
24
include the names of each person, passport number, intended assignment and
responsibilities, and should be accompanied by curriculum vitae and
certificates of graduation (final education).
18.3 TELKOM shall assist the CONTRACTOR in obtaining permits and authorizations
from the government and municipal authorities for entry into occupation and
excavation of the property of a third party for the execution of the Works
therein upon the CONTRACTOR's request.
18.4 At least kind of permits shall be obtained by TELKOM and the CONTRACTOR
respectively as stated in Attachment-10 (Permit Matrix).
ARTICLE 19
PROVISION OF FACILITIES AND LABOR BY CONTRACTOR
19.1 Unless otherwise specially defined, the CONTRACTOR shall, at his own
expense, provide Construction Equipment, test equipment, test programs,
materials, tools, labor, water, drainage, fuel, oil, electricity,
utilities, transportation, and all other facilities and services, and
safety measures, as well as any temporary sheds, platforms, offices,
warehouse, guard posts, and other structures necessary for proper execution
of the Contract.
19.2 The CONTRACTOR shall be responsible for proper fencing (if necessary),
guarding, lighting and watching of all Works on Site until the Works have
been completed and accepted by TELKOM.
19.3 The CONTRACTOR shall also be responsible for the proper provision of
temporary roadways, and guards, safety signs for the accommodation,
protection and safety of the owners and occupiers of adjacent properties,
the public and others.
19.4 The facilities and labor provided by the CONTRACTOR specified in Articles
19.1 and 19.2 above shall comply with the Technical Specification, and
relevant laws, ordinances and regulations in Indonesia and shall be subject
to the approval of TELKOM.
25
ARTICLE 20
COPERATION WITH OTHER CONTRACTORS
20.1 The CONTRACTOR shall conduct his Services so as not to interfere with, or
hinder, the progress or completion of the works being performed by other
contractor(s) involved in the execution of this or any other project.
20.2 The CONTRACTOR shall cooperate with other contractor(s) concerned with
Project, and in case of any dispute, the matter shall be referred to and
settled among TELKOM, the CONTRACTOR and other contractor(s).
20.3 The CONTRACTOR shall, as far as possible, arrange his Works and place and
dispose of the Goods being used, so as not interfere with the installation
and/ or the operation of other contractors. The CONTRACTOR shall execute
the Services in an acceptable manner and coordinate with other contractors.
ARTICLE 21
PROTECTION OF EXISTING
TELECOMMUNICATION SYSTEMS
21.1 During the implementation of Project period, the CONTRACTOR shall pay
special attention to protect the continuity of the operation of the
existing telecommunication systems.
21.2 In the event that any damage should occur, due to the execution of the
Works, the CONTRACTOR shall be responsible for the costs incurred for the
repairs of such damage. The CONTRACTOR shall not be liable to any
consequential, incidental or indirect damages. The CONTRACTOR's maximum
aggregate liability, whether in tort, contract or otherwise, shall be
limited to one hundred (100) percent of the Contract Price.
21.3 In the event that the CONTRACTOR fails or refuses to incur the costs
thereof, TELKOM shall, without prejudice to its other remedies under the
Contract, deduct the cost of such damage from payment to the CONTRACTOR.
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ARTICLE 22
DAMAGE TO PERSONS AND PROPERTY
22.1 This Article applies to all claims, losses, expenses and damages for:
a. injuries to or death of any persons; and
b. damage to property, other than the System;
which result directly from the activities of the CONTRACTOR, its
Sub-contractors, or agents in the execution of the Contract.
22.2 The CONTRACTOR shall be liable for all claims, losses, expenses, and
damages described in Article 22.1 above, and shall indemnify and save the
TELKOM harmless from all such claims, losses, expenses and damages.
22.3 TELKOM shall :
a. provide immediate written notice to the CONTRACTOR of all such claims
and suits;
b. permit the CONTRACTOR to assume the sole defense of and to settle such
claims or suits, and shall, upon the CONTRACTOR's request and at the
CONTRACTOR's expense, furnish all information and reasonable
assistance to assist the CONTRACTOR in the defense or settlement of
the same.
22.4 The CONTRACTOR shall be responsible for the costs of clean-up and other
costs resulting from environmental damage which results directly from the
activities of the CONTRACTOR, its Sub-contractors or agents in the
execution of the Contract.
27
ARTICLE 23
ACCIDENT OR INJURY TO WORKMEN
TELKOM shall not be liable for any damage or compensation payable at law in
respect to or in consequence of any accident or injury to any xxxxxxx or other
person in the employment of the CONTRACTOR or any Sub-contractor, except an
accident or injury resulting from any act or default of TELKOM. The CONTRACTOR
shall indemnify and keep indemnified TELKOM against all such damages and
compensation, except as aforesaid, and against all claims, proceedings, costs,
charges and expenses whatsoever in respect thereof or in relation thereto.
ARTICLE 24
WORKMANSHIP
24.1 No work shall be covered up or put of view without the approval of TELKOM
and the CONTRACTOR shall afford full opportunity for TELKOM to examine and
measure any work which is about to be covered up or put out of view and to
examine in the reasonable time before permanent work is placed thereon. The
CONTRACTOR shall give due notice to TELKOM whenever any such work ready for
examination and TELKOM shall, without unreasonable delay, unless he
considers it unnecessary and advises the CONTRACTOR accordingly, attend for
the purpose of examining and measuring such work.
24.2 Any part of the Works found not to be in compliance with the Contract shall
be promptly reconstructed accordingly by the CONTRACTOR at his own expense.
No extension of Time of Completion and no additional cost shall be made in
connection therewith.
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ARTICLE 25
MONTHLY PROGRESS REPORT
25.1 The CONTRACTOR shall submit progress report in 10 (ten) copies to TELKOM's
Project Manager within the first five (5) calendar days of the following
month. The first report is to be issued at the second month from the
Effective Date of Contract.
25.2 Progress report shall describe the progress of the Works by proving and
evidencing objectively the amount of the Works completed in the months
concerned. The CONTRACTOR's special attention shall be directed to
preparation of progress report in such manner and such form that TELKOM can
easily examine and confirm the amount of the Goods supplied / installed and
the Works performed.
25.3 Progress Report shall cover the following items:
a. Total progress for the last 2 (two) months and at the end of the
months;
b. Goods supplied/ installed and Work completed measured in terms of
value for each Site and each for the months concerned and as of the
end of the months;
c. The CONTRACTOR's manpower mobilization for the months concerned;
d. Major problems encountered;
e. Anticipated Works for the following 4 (four) months;
f. Inventory report;
g. Undelivered Goods and shipment schedule;
h. Pertinent information which TELKOM may request, and
i. Payment Schedule, in which the CONTRACTOR shall estimate the receipt
of payment from TELKOM for the entire period of the Contract,
29
including the latest status of the amount already received. The form
of payment schedules will be furnished by TELKOM to the CONTRACTOR.
Payment schedule shall be updated by every new progress report to be
issued.
The CONTRACTOR shall submit the format of progress report to TELKOM for its
approval within 30 (thirty) days after the Effective Date of the Contract.
ARTICLE 26
CLEANING-UP
26.1 The CONTRACTOR shall at all times pay due attention to sanitation at Site
and keep the Site free from accumulation of waste materials or rubbish
caused by his Works.
26.2 At the completion of the Works the CONTRACTOR shall remove all the surplus
materials and rubbish from Site as well as his Construction Equipment, and
waste materials, within such time as designated by TELKOM's Project
Manager.
ARTICLE 27
INSPECTION AND TESTS
27.1 Inspection and Test of the Goods
a. TELKOM or the Inspector shall have the right to inspect and/ or test
the Goods in order to confirm their conformity to the Contract.
b. The inspections and tests may be conducted on the premises of the
CONTRACTOR or its Sub-contractor(s), at the point of delivery and/ or
at Site.
c. When conducted on the premises of the CONTRACTOR or its
Sub-contractor(s), all reasonable facilities and assistance, including
access to drawings and production data, shall be furnished to the
Inspector(s) at no charge to TELKOM.
d. Should any inspected or tested Goods fail to conform to the
specifications, TELKOM must reject them and the CONTRACTOR shall
replace the rejected Goods to meet the requirements
30
in the specifications, at no charge to TELKOM.
e. TELKOM's right to inspect, test and where necessary, replaced Goods
after the Goods arrival at Site shall not be limited or waived by
reason of the Goods having previously been inspected, tested and
passed by TELKOM or the Inspector prior to the Goods shipment from the
country of origin.
27.2 Interim Inspections and Testing of Works
a. TELKOM shall be entitled to request the CONTRACTOR at any time when
deemed necessary during the execution of the Contract, to carry out
inspections and tests of the Works so far constructed/installed in the
reasonable time.
b. The CONTRACTOR shall provide such assistance, instruments, machines,
and labor as are normally and reasonably required for examining,
measuring and testing the Works and the quality of any Goods
incorporated in the Works at no additional cost to TELKOM.
c. Should any portion of the Works or Goods incorporated in the Works
fail to conform to the Technical Specifications after the Site
Inspections/ Tests, TELKOM must reject them and the CONTRACTOR shall
immediately repair, replace and/or correct such unsatisfactory
portion(s) at its own cost.
27.3 ACCEPTANCE TEST OF WORKS. Within one (1) month before the conducted
Acceptance Test, CONTRACTOR shall submit the detail item and test procedure
for TELKOM's approval. Acceptance Test shall be carried out after the
System is commissioned by CONTRACTOR and is ready for Acceptance Test.
CONTRACTOR shall carry out Acceptance Test over the whole Works as referred
to in this Contract, at the Site of
31
installation in accordance with Acceptance Test schedule which shall be
submitted by CONTRACTOR to TELKOM.
For the purpose of such Acceptance Test above, whereby the System shall be
integrated with TELKOM's Existing System, then TELKOM shall make available
such TELKOM's Existing System and ready to interoperate with the System
within seven (7) days after Acceptance Test schedule as CONTRACTOR's
notification letter pursuant to Article 27.4. In the event TELKOM's
Existing System is not ready to interoperate with System within seven (7)
days after such Acceptance Test schedule, such Acceptance Test shall be
suspended. CONTRACTOR shall carry out such integration at the time when
TELKOM's Existing System is to be available and ready to interoperate as
required in this Contract.
The Acceptance Test shall be carried out in the presence of both Parties'
authorized representatives.
27.4 Prior Notice to Acceptance Test. CONTRACTOR shall give notification to
TELKOM within fourteen (14) calendar days prior to the date of the
Acceptance Test. Within seven (7) working days after receipt of such
notification, TELKOM shall notify CONTRACTOR of its approval for such
Acceptance Test schedule or TELKOM may propose another Acceptance Test
schedule which shall not be later than seven (7) calendar days after
CONTRACTOR's proposed date, with remain to pay attention to completion date
of Works according to this Contract.
27.5 Acceptance Test Implementation. After installation and commissioning for
the System has been completed by CONTRACTOR, the Acceptance Test shall be
carried out and the result stated in the Acceptance Test Certificate (BAUT)
shall be submited to TELKOM's Project Manager for the purpose of the
issuance of XXXX-I.
27.6 Error rectification obligations. Should there be any non-compliance with
the Technical
32
Specifications (hereinafter referred to as "Error") during Acceptance
Test period, TELKOM and CONTRACTOR shall record such Error in writing and
CONTRACTOR shall start to rectify such Error according to Acceptance Test
requirements.
27.7 Major Remaining Errors. If the result on Acceptance Test indicates System
which is not operable commercially, or causes damage or loss of data or
software, or causes corrupted data (hereinafter referred to as "Major
Remaining Errors"), then CONTRACTOR shall notify TELKOM in writing (a) to
stop the Acceptance Test or (b) to extend the Acceptance Test period. In
case of (a) above, after the Error has been rectified, CONTRACTOR shall
notify TELKOM at least seven (7) calendar days before conducting
re-testing.
27.8 Minor Remaining Errors. If Acceptance Test result indicates the System
shall cause failures other than Major Remaining Errors that do not affect
the System to normal operation, TELKOM can commercially operate the
System. The minor items shall be documented and CONTRACTOR shall rectify
such Errors within two (2) months from the issuance of XXXX-I or subject
to such Error.
27.9 Checking on Acceptance Test Report. Upon the completion of such tests as
referred to in this Article and CONTRACTOR has submitted reports on the
System, and any other requirements have been made available in accordance
with the provisions of this Contract, TELKOM shall check all such reports
of CONTRACTOR. In the event any part of function is not in compliance
with Technical Specifications under this Contract or incomplete, TELKOM
shall notify CONTRACTOR in writing within seven (7) calendar days from
the presentation by CONTRACTOR of said reports.
27.10 Cost for Corrections. All costs incurred in connection with corrections
as referred to in
33
this Article shall become the full responsibility of CONTRACTOR.
27.11 The issuance of First Hand-Over Certificate (XXXX-I); The issuance of the
XXXX-I for the System by TELKOM, if CONTRACTOR has been fulfilled his
obligations and requirements under this Contract whit the following
conditions:
a. The acceptance result (BAUT) indicate that the System has been tested
and is functioning properly in accordance to this Contract without
any major pending items and accepted by TELKOM, furthermore TELKOM's
Project Manager will issue XXXX-I for the System within seven (7)
calendar days after issuance of BAUT.
b. In the event TELKOM has put the System commercially operated before
XXXX-I is issued, then the System shall be deemed to be accepted and
the XXXX-I shall be issued by TELKOM.
c. The issuance of XXXX-I by TELKOM shall not be withheld due to Minor
Remaining Errors by taking into consideration that (i) such
deficiency shall not affect to commercially operation by TELKOM and
maintenance activities of the System under this Contract (ii) such
deficiency will be put as an attachment to the XXXX-I in order for
CONTRACTOR to rectify in accordance with Article 27.8
27.12 XXXX-2 shall be issued based on System basis by TELKOM's Project Manager,
five (5) years after the date of XXXX-I provided that CONTRACTOR has
fulfilled the following conditions:
a. all remaining errors have been rectified and reported;
b. all warranty obligations have been fulfilled;
c. as-built drawing has been completed and submitted.
34
ARTICLE 28
CERTIFICATES
28.1 Factory Test Certificate.
After the witnessing of factory tests by the Inspector (if any) has been
satisfactorily completed, the Inspector shall issue a "Factory Test
Certificate for Goods" which is signed by both Parties. Inspector shall
state whether or not the test results were satisfactory and the date on
which the witnessing of the factory tests were completed, as well as the
particulars of the Goods inspected and tested. Six (6) copies of such a
certificate shall be delivered to the CONTRACTOR within fourteen (14) days
after the CONTRACTOR has submitted to the Inspector the tests data for
factory tests witnessed by the Inspector.
In the event that TELKOM finds it is impossible to dispatch the Inspector
to witness a factory test after having received advanced notice of a
factory test from the CONTRACTOR within a period agreed by both parties,
TELKOM shall notify the CONTRACTOR in writing to such effect and upon
notification from TELKOM, the CONTRACTOR shall carry out the factory test
without the Inspector's attendance. The CONTRACTOR shall prepare the
certificate itself and shall guarantee that the result of the test is
within the Technical Specification.
TELKOM shall accept the test certificate as though it were a certificate
issued by the Inspector.
28.2 Goods Arrival Certificate
Upon the arrival all of the Goods at a Site, Inspector shall make a visual
inspection tests to determine if the Goods are the same and correct in the
description of items and quantities, referred to in the shipping/ delivery
documents furnished by the CONTRACTOR.
In order that TELKOM may make a timely inspection of the Goods delivered to
Site, the CONTRACTOR shall notify TELKOM of
35
the type and quantity of such Goods at least fourteen (14) calendar days
prior to their delivery.
TELKOM upon a satisfactory result of their inspection and all of the Goods
has been completely delivered within fourteen (14) calendar days thereof,
Inspector shall issue to the CONTRACTOR a Goods Arrival Certificate of the
Goods which is counter signed by Parties.
28.3 Final Acceptance Certificate / XXXX-II
a. At the end of the five (5) year warranty period and after the
satisfactory completion of the Acceptance Test of the System, defined
in Attachment-7 (Technical Specification), and provided that the
CONTRACTOR has fulfilled its obligations under the Contract, TELKOM's
Project Manager shall issue a Final Acceptance Certificate.
b. The Final Acceptance Certificate will not apply to those parts which
may have been replaced during the warranty period or to those parts
having been the subject of an extension of warranty according to the
provisions of Article 29.2 hereof.
c. The issuance of Final Acceptance Certificate shall not be unreasonably
withheld or delayed, but in the event that a pattern of failure or
pattern of degradation develops that is likely to cause the System to
fail to meet the requirements of the Contract or such other
performance levels agreed upon by the TELKOM over the twenty-five (25)
years design life of the System, final acceptance may be withheld
until it can be demonstrated to the satisfaction of the TELKOM that no
pattern of failure or pattern of degradation shall have developed that
is likely to cause the TELKOM to fail to meet the requirements of
Attachment-7 (Technical Specification), and/or CONTRACTOR's system
description over the twenty-five (25) years design life. In such
event, the
36
validity of the letter of performance security provided for under
Article 7 shall remain in force until the Final Acceptance Certificate
is issued.
d. At the discretion of the TELKOM with pursuant to Article 28.4 the
final acceptance tests programme may consist of a repetition of a part
or the whole of the tests of the System Acceptance test program.
ARTICLE 29
WARRANTY
29.1 The CONTRACTOR shall warrant that the Goods supplied under the Contract are
new, unused, of the most recent or current models and incorporate all
recent improvements in design and materials and that all Works performed by
him shall be perfect in materials and workmanship. The CONTRACTOR shall
further warrant that the Goods supplied and the Works performed under this
Contract shall have no defect arising from design, materials or workmanship
or from any act or omission of the CONTRACTOR, which may develop during
normal use of the Goods supplied and the Works performed in the conditions
existing at Site.
29.2 The CONTRACTOR shall provide warranty for the System as follows:
a. The warranty period for the Marine Portion of the System or shall
remain valid for five (5) years commencing from the respective date of
the System Acceptance Certificates.
b. The CONTRACTOR warrants that the System, including its spares, shall
conform fully, over the twenty-five (25) years design life, to the
requirements of the Contract or such other performance levels agreed
upon as acceptable by TELKOM and that no pattern of failure or pattern
of degradation shall have developed that is likely to cause the System
to fail to meet the requirements of Attachment-7 (Technical
Specification) over the twenty-five (25) years design life.
37
29.3 TELKOM shall promptly notify the CONTRACTOR in writing of any claims
arising under this warranty. Upon receipt of such notice, the CONTRACTOR
shall :
a. perform any repair required to restore the System to the requirements
of the Contract or such other performance levels agreed upon by
TELKOM, if the System should fail to meet such requirements at any
time during the warranty period or has developed a pattern of failure
or pattern of degradation that is likely to cause the System to fail
to meet such requirements. However, TELKOM may elect, at their sole
option, to make repairs, including at sea repairs which are covered by
the warranty. Any equipment discovered to be defective or faulty and
recovered during a warranty repair shall be returned to the CONTRACTOR
at TELKOM's request and at TELKOM's expense. The CONTRACTOR shall
reimburse TELKOM for the cost of such repairs within twenty one (21)
days from receipt of a relevant notice issued by TELKOM. The
CONTRACTOR shall be entitled to have a representative during repair
execution to observe the System defective or faulty recovered. Such
repairs by TELKOM shall not in any way diminish the CONTRACTOR's
obligations under the warranty.
b. bear the total cost of each repair required during the warranty
period. This cost shall include but not limited to the components,
equipment or materials requiring replacement, the cost of any
additional equipment necessary to effect the repair, the cost of
making the repair, the cost of labor and engineering assistance or
development required to make the repair and all associated costs such
as but not limited to shipping and customs and services that may be
required to make the repair.
38
29.4 The warranty period of items not accepted, provided or requiring repair or
replacement at the System acceptance date shall start from the date(s) such
items are accepted by TELKOM. Any defective part repaired or replaced
during the warranty period shall itself be subject to a further warranty
period of five (5) years from the date of repair or replacement.
29.5 If during the warranty period defects are found on repeated occasions in
any part or parts of the System or if a pattern of failure or pattern of
degradation is likely to cause any part or parts to fail to meet the
specified requirements over the twenty-five (25) years design life, such
part or parts shall not be repaired but shall be replaced by new part(s) at
the request of TELKOM, including all the appropriate spares.
a. For the purpose of this Article, a pattern of failure or pattern of
degradation shall be deemed to exist if:
1) TELKOM have notified the CONTRACTOR that in their reasonable
opinion failures of the same or similar mechanisms have occurred
which show a deterioration of System performance that will render
the System outside its specification during its design life, and
2) The CONTRACTOR, having carried out an investigation, cannot
demonstrate to the reasonable satisfaction of TELKOM that:
(1) the failures/deteriorations are within the predictions of
the reliability model or Mean-Time-Between-Failure (MTBF)
figures;
(2) the failures/deteriorations are not due to a design defect
in the component or its application; or
(3) the failures/deteriorations only apply to a limited number
39
of parts, for example, as the result of a manufacturing (or
batch related) inconsistency.
b. The investigation into the cause of any failures/deteriorations and
any associated remedial action shall be carried out by the CONTRACTOR
within a reasonable time-scale with regular progress reports as
requested by TELKOM.
29.6 In addition, the CONTRACTOR shall pay to TELKOM all actual expenses (if
any) incurred by TELKOM in testing or examining any part of the System for
the purpose of or in connection with this Article or in connection with
making good, replacing or repairing any part of the System.
29.7 The CONTRACTOR shall make every reasonable effort to minimize the period of
time that the System is out of service for repair and testing. For failures
or any situations which cause or risk to cause an outage of the System, the
CONTRACTOR undertakes to initiate a corrective intervention immediately but
in any case no later than two (2) days after reception of a notice from
TELKOM. TELKOM reserve the right to determine the timing of rectification.
29.8 The CONTRACTOR shall effect all repairs of the System through the use of
repair materials supplied by it. However, the CONTRACTOR with the agreement
of TELKOM, may use the materials needed to effect a repair from TELKOM's
available spare materials, components or equipment. The CONTRACTOR shall
replace such material supplied from TELKOM's spare stock at a time mutually
agreed by TELKOM and the CONTRACTOR. All materials supplied to replenish
TELKOM's spare and all materials used to repair the System, which are not
supplied from TELKOM's spare materials, shall be warranted for a period of
five (5) years for from the date of replacement.
29.9 The repair or replacement of any faulty unit or equipment includes the
delivery to
40
TELKOM with a descriptive report of the fault found and, when appropriate,
of the repair carried out on such faulty unit or equipment. The maximum
period for repair of the units or equipment (including shipping and customs
clearance) is defined in Attachment-7 (Technical Specification).
a.
ARTICLE 30
LONG TERM SUPPORT
30.1 For a period of twenty-five (25) years starting on the date of System
Acceptance Certificate, the CONTRACTOR shall supply to the TELKOM :
a. technical support and advice in respect of the design, maintenance and
operation of the System.
b. supplies, replacement equipment, repair service and software support
to the System at a reasonable price.
30.2 Where identical parts or components cannot be supplied the CONTRACTOR shall
provide equivalent and compatible parts, and shall be responsible for any
adaptive engineering work and all implementation documentation that may be
necessary.
30.3 Notwithstanding Article 30.2, if for any reason the CONTRACTOR intends to
cease manufacturing identical or fully compatible spare parts and
replacement equipment, the CONTRACTOR shall give a minimum of one (1) year
prior written notice to TELKOM to allow TELKOM to order from the CONTRACTOR
any required spare parts and replacement equipment and shall forthwith
provide full details of the equivalents. However, the CONTRACTOR shall not
cease to manufacture such parts and equipment before the expiration of the
warranty period, as described in Article 29.
41
ARTICLE 31
TIME OF COMPLETION
31.1 The Works shall be completed within time of completion assigned for each
Site as indicated in Plan of Work. Completion of the Works is signified at
the date of issuance of System Acceptance Certificate.
31.2 The entire Works under the Contract shall be completed within two hundred
twenty six (226) days from EDC, as follows:
31.3 Within thirty (30) calendar days from the Effective Date of the Contract,
the CONTRACTOR shall give TELKOM a detailed Plan of Work (PoW) showing the
accepted milestones of each Site.
31.4 The PoW shall be indicated in the form of a bar chart and Critical Path
Method (CPM) showing:
a. the dates of readiness for factory test and shipping;
b. the dates of beginning and completing of Site Survey and DRM;
c. the dates of beginning and completion of installations at the Sites,
and
d. The dates of readiness for System Acceptance Test.
31.5 The CONTRACTOR shall provide an updated schedule every two (2) months
showing progress. The PoW to be updated shall not relieve the CONTRACTOR's
obligations to complete the Works in time.
31.6 The CONTRACTOR shall strictly observe the project implementation in
accordance with Time of Completion as mentioned in Article 31.
31.7 In the evnet of occurrence of failures in TELKOM's Exisiting Network which
prevents or disable the CONTRACTOR from
42
carrying out the Works, the CONTRACTOR may suspend performance of related
Works which shall be mutually agreed in writing by TELKOM and the
CONTRACTOR.
31.8 If, as a result of such suspension of Works, the CONTRACTOR incurs
additional costs, or suffers loss in the discharge of its responsibilities
under the Contract, then the CONTRACTOR shall be allowed to recover an
amount equal to the costs and/or losses from TELKOM, provided that:
a. such costs or losses could not have been reasonably prevented by
the CONTRACTOR, and;
b. the CONTRACTOR submits a detailed claim for such costs or losses,
supported by sufficient evidence to enable it to be validated
within two (2) months of the date of occurrence, and
c. the suspension was not caused by the default or negligence of the
CONTRACTOR.
43
Usulan dari NEC
3.9 The CONTRACTOR shall be allowed an equitable extension of Time of
Completion for performance of any suspended Work as may be mutually
agreed, provided that the suspension was not caused by the default or
negligence of the CONTRACTOR.
31.10 If the suspension under Article 31.7 continues for a total of one hundred
eighty (180) days, TELKOM and the CONTRACTOR will discuss possibility of
termination or any other arrangement. If the both Parties agree to
terminate the Contract, the Contract will be terminated on the date
agreed between the Parties.
ARTICLE 32
SPARE PARTS
32.1 During the warranty period, all parts that are required to be replaced,
shall be supplied by CONTRACTOR without charge to TELKOM if such
replacement is due to imperfect workmanship, faulty design or faulty
material supplied by the CONTRACTOR, or any act, neglect or omission on
the CONTRACTOR's part or unless such errors or non-compliance have been
cause by TELKOM or third party(ies).
32.2 CONTRACTOR shall provide prices and suppliers (local or overseas)
information, regarding spare parts, and suggest the number of spare to be
purchased and stocked for the successful maintenance of the System.
32.3 CONTRACTOR shall provide a list of spare part including description and
quantity as appropriate by TELKOM.
32.4 CONTRACTOR shall agree to supply the spare parts to TELKOM and TELKOM
shall have the right to purchase these spare parts from CONTRACTOR for
TELKOM's maintenance requirements at a price to be agreed upon. The spare
parts or suitable equivalents with the same performance should be
available throughout the design
44
lifetime of the System.
32.5 The CONTRACTOR shall guarantee that any additional Goods as well as spares
shall be supplied any time for a period of five (5) years from the date of
the Final Acceptance Certificate of Contract (XXXX-2).
32.6 The CONTRACTOR shall carry out sufficient inventories to assure ex-stock
supply of consumable spares for TELKOM
ARTICLE 33
TOOLS AND MEASURING EQUIPMENT
33.1 The CONTRACTOR shall provide tools and measuring equipment with
instruction manuals required for maintenance and operation of the
completed Works in accordance with the Xxxx of Quantity. The tools and
measuring equipment are detailed in the Technical Specification. Tools and
measuring equipment which provided under this Contract which shall be
handed over to TELKOM are new and original.
33.2. For the installation and/or construction activities purpose, the
CONTRACTOR shall provide all necessaries tools and measuring equipment by
themselves.
ARTICLE 34
TERM OF PAYMENT
34.1 The terms of payment of this Works under this Contract will be made by
TELKOM to CONTRACTOR as follows:
1) Payment will be made 100% of Contract Price after the XXXX-I issued by
TELKOM indicating that the System has successfully been completed and
can properly be put into commercially operation.
2) In the event of suspension of the Contract as set forth in Article
31.7, TELKOM shall pay the Contractor a) the price for completed Works
based on Appendix-1 (Price Summary and Xxxx of Quantity) upon such
suspension.
Usulan NEC
3) CONTRACTOR shall submit
45
completed and valid invoice in three (3) original copies to TELKOM
that consist of the following document :
1. Original of XXXX-I;
2. Copy of Acceptance Test Certificate (BAUT);
3. Copy of insurance policy for Goods and Services pursuant to
Article 14.6 for the first payment;
4. Original of warranty bond;
5. Copy of valid performance bond;
6. Copy of cerificate of origin from Chamber of Commerce of origin
country.
7. Tax invoice following the applicable Indonesian regulation.
8. Invoice and simple receipt in duplicated;
9. Cover letter.
34.2 Payment for Dollar US portion shall be made by TELKOM in Indonesian Rupiah
currency (IDR) with conversion of middle rate of Bank Indonesia at the time
of the payment, while invoicing shall be in US Dollar and Indonesian Rupiah
Currency (IDR) under this Contract.
34.3 Period of Payment
Each of payment shall be made within thirty (30) calendar days after
receipt of complete, valid and correct documents by TELKOM.
34.4 Address of invoicing.
Any invoices and related documents under this Contract shall be submitted
to the following addresses:
TO: PT Telekomunikasi Indonesia,Tbk
Att. Senior Manager of Finance
LONG DISTANCE DIVISION
Xxxxx Xxxxxx Xx.0, 0xx Xxxxx
Xxxxxxx 00000
34.5 The payment shall be made by TELKOM to CONTRACTOR though direct transfer
which addressed to :
Bank : CitiBank Jakarta Branch
Address : Xx.Xxxxxxx Xxxxxxxx
00
Xxx.0-0 Xxxxxxx - 00000
Account No. : (to be advised)
In favour of NEC CORPORATION and transfer fee shall be responsibility of
CONTRACTOR.
ARTICLE 35
CONTRACT PRICE
35.1 The Contract Price for execution of this Contract is USD XXXXXX(Said XXXX).
35.2 The details are specified in Article 35.1 as mentioned in Attachment-1
(Price Summary and Xxxx of Quantity) of this Contract.
35.2 No further costs. Contract Price set forth in the breakdown of price as
mentioned in Attachment-1 (Price Summary and Xxxx of Quantity) of this
Contract shall cover the entirety of parts which are required for the
implementation of the Works in accordance with this Contract, save to the
extent any additional or reduced Works as required by TELKOM in writing as
referred to in Article 37 and Article 38 with respect to addition or
reduction of the Works under this Contract.
35.3 The total Contract Price shall include VAT currently at 10%, income tax,
other payable taxes, duties, levies and fees in accordance whith the
prevailing laws and regulation that may be imposed or levied in connection
with the execution of the Contract.
35.4 Unit prices quoted in Attachment 1 (Price Summary and Xxxx of Quantity) are
firm fixed prices and shall not be varied except new item not defined in
such attachment.
47
ARTICLE 36
TAXES, LEVIES AND DUTIES
36.1 Taxes and Importation. All taxes (excluding VAT), stamp duty and other
duties in accordance with the Government regulations shall be the
responsibility of the CONTRACTOR Any withholding tax shall be deducted
directly by TELKOM from the payment to be made to CONTRACTOR in
accordance with the prevailing laws which is applicable to this
CONTRACTOR, (except the VAT shall be paid by TELKOM to CONTRACTOR to be
paid to Indonesian Government).
36.2 All the Goods under this Contract shall be conducted under CIF as
referred to in Incoterm 2000. Therefore, it is agreed by the Parties
hereto that : (i) TELKOM shall be the importer; and (ii) CONTRACTOR
shall be responsible for and carry out importation and custom clearance;
(iii) All the costs of material import to Indonesia including storage,
penalty, if any shall be the responsibility of the CONTRACTOR.
If TELKOM's import license will not be available then the Parties will
discuss and settle this matter.
36.3 Additional devices. In the event CONTRACTOR shall require additional
devices, apparatus or any other tools in carrying out the Works which
shall be obtained by means of importing them from abroad, then all
costs, taxes, retribution and any other levies thereof shall become the
responsibility of CONTRACTOR.
36.4 CONTRACTOR shall be responsible at its own cost, for obtaining in a
timely fashion all necessary export permits, licenses and approvals from
the country of origin and any intermediate locations, including the
payment of any and all levies for freight handling and other costs
related to such permits, licenses and approvals.
36.5 Irregularities to importation procedures. CONTRACTOR shall be fully
responsible for the occurrence of irregularities to either the delivery
of Goods from country of origin, transport procedures or supporting
import documents, as set forth in the
48
Presidential Instruction Number 3 of 1991 dated 25th July 1991 or any
replacement regulations thereof, if any.
ARTICLE 37
CONTRACT CHANGE
37.1 TELKOM may at any time, by a written order given to the CONTRACTOR
pursuant to Article 35, make any change to the provisions of the
Contract as may be considered necessary during the execution of the
Works in any one or more of the following:
a. Volumes and quantities of the Goods to be supplied and the
Services to be performed by the CONTRACTOR, and
b. Plan of Work.
37.2 If any change causes an increase or decrease of cost and any part of the
Works under the Contract, an equitable adjustment shall be made in the
Contract Price and/or Plan of Work upon mutual agreement by the Parties
hereto.
37.3 TELKOM shall instruct the CONTRACTOR to provide the change or vary the
Works, with the consent in writing. Such change on the Contract Price
will be determined as follows:
a. if the variations concern only quantities of equipment or services
for which a unit price or rate is indicated in Attachment-1
(Price Summary and Xxxx of Quantity), the unit price or rate as the
case may be shall be applied.
b. if the subject of the variations is not covered by a unit price or
rate in Price Schedule, the CONTRACTOR and TELKOM shall mutualy
agree on such new unit price proposed by CONTRACTOR.
37.4 If such variation effect to any part of the Works or Contract Price, an
equitable adjustment shall be made upon mutual agreement by the Parties
hereto.
49
37.5 Any changed in respect of the Contract shall only be recognized or
acceded to when that has been agreed in writing by the TELKOM prior to
implementation of the Contract changed by the CONTRACTOR. The
implementation of such change may be executed by CONTRACTOR in parallel
after having approval from TELKOM's Project Manager or after signing of
the Contract Amendment pursuant to Article 38 by both Parties.
37.6 TELKOM shall not be liable for any additional work unless it is recorded
in Contract Change. If the CONTRACTOR proceeds without such written
authorization, it shall be deemed a waiver by the CONTRACTOR of any and
all claims for additional payments.
ARTICLE 38
CONTRACT AMENDMENTS
Any variation in or modification of the terms of the Contract including but not
limited to Contract Price during the execution of the Contract shall be subject
to Contract amendment in writing agreed by the Parties hereto
ARTICLE 39
ASSIGNMENT
The CONTRACTOR shall not assign, in whole or in part, its obligations to perform
of Works under the Contract, except with TELKOM's prior written consent.
ARTICLE 40
SUB-CONTRACTORS
40.1 Prior to the appointment of Sub-contractors, the CONTRACTOR shall notify
TELKOM in writing of such intended appointments and shall obtain
TELKOM's written approval.
40.2 The CONTRACTOR's notification of Sub-contractors and subsequent TELKOM's
approval thereof shall not release the CONTRACTOR from any liability or
obligation under the Contract.
50
ARTICLE 41
DELAYS IN THE WORKS PERFORMANCE
41.1 Subject to Articles 31.7, 37 and 38 the CONTRACTOR shall complete the
supply and installation of the System by the Time of Completion as
specified in Article 31.
41.2 If the execution of the Works shall be delayed by reason of any event of
force majeure, without the default or negligence on the part of the
CONTRACTOR and pursuant to Article 41.3, the CONTRACTOR may be granted
such extension of Time of Completion as shall be mutually agreed,
without any financial claim from the CONTRACTOR to TELKOM.
41.3 In connection with Article 41.2 and provided that the CONTRACTOR proves
that:
a. there is insufficient contingency time indicated in Plan of Work
to cover any delay, and;
b. such delay or any duration of such delays could not be avoided by
use of alternative resources, and ;
c. such delay could not be avoided even after reasonable endeavors
have been attempted to mitigate the impact on Time of Completion;
d. such extension of Time of Completion will only be considered if the
CONTRACTOR notifies TELKOM of the cause of delay within fourteen
(14) calendar days of commencement of the delay and provides to
TELKOM, either on completion of the Works or at an appropriate stage
in the Works, satisfactory evidence of the effects of the delay.
41.4 If the System is not completed in accordance with Article 31 or by the
end of the period of extension agreed upon under Article 38, the
CONTRACTOR shall pay to the TELKOM by way of liquidated damages pursuant
to Article 42.
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ARTICLE 42
LIQUIDATED DAMAGES
42.1. Liquidated Damages Amount. For any delay in the Time of Completion
pursuant to Article 31 and Attachment-2 (Plan of Work), TELKOM shall be
entitled for liquidated damages from CONTRACTOR amounting of 1 0/00 (one
per mil) of the Contract Price excluding 10% VAT for each day delay for
a maximum ten percent (10%) of the Contract Price.
42.2. The sum or sums of liquidated damages as a result of delay pursuant to
Article 42.1 above will be deducted from amount of CONTRACTOR's invoice
which is not yet paid by TELKOM without prejudice to TELKOM's right of
termination under Article 43 of this Contract.
ARTICLE 43
TERMINATION FOR DEFAULT
43.1 TELKOM may terminate the Contract in whole or in part, if the following
conditions are occured :
a. if the CONTRACTOR fails to deliver any or all of the Goods or fails
to perform any or all of the Works within Time of Completion
specified in Article 31, or any extension thereof granted by TELKOM
pursuant to Article 38, or;
b. if the CONTRACTOR is in material breach of any of provisions of the
Contract
c. if the CONTRACTOR do not take any action within thirty (30) calendar
days since the Effective Date of Contract;
d. if the CONTRACTOR delay up to fifty (50) calendar days from the
agreed Time of Completion as describe in Article 31 without any
writing from CONTRACTOR pursuant to Article 41.2.
TELKOM shall give notice in writing to the CONTRACTOR to make good the
default
52
before TELKOM terminate the Contract. If the CONTRACTOR fails to make good the
default within thirty (30) calendar days from the date of notice was given, then
TELKOM may terminate the Contract. This condition does not apply to Article
43.1.c.
43.2 If the Contract shall be terminated due to the above reasons Article
43.1 then TELKOM have the right to forfeiture the performance bond which
will be proprietary of TELKOM.
43.3 In the event TELKOM terminates the Contract in whole or in part,
pursuant to Article 43.1. TELKOM may procure, upon such terms and in
such manner as it deems appropriate, the Goods similar to those
undelivered and the Works unperformed, and the CONTRACTOR shall be
liable to TELKOM for any excess costs for such similar Goods and Works.
However, the CONTRACTOR shall continue performance of the Contract to
the extent not terminated.
ARTICLE 44
FORCE MAJEURE
44.1 Notwithstanding the provisions of Articles 41, 42, and 43.1, the
CONTRACTOR shall not be liable for forfeiture of its performance bond,
liquidated damages or termination for default, if and to the extent
that, its delay in performance or other failure to perform its
obligations under the Contract is the result of an event of force
majeure.
44.2 For purposes of this Article, "Force Majeure" means an event having
occurred in Indonesia which is beyond the control of the CONTRACTOR and
not involving the seeable cause. Such events may the Government of
Indonesia in its sovereign or capacity, fire, flood, earthquake,
landslide, epidemics, freight embargoes, war, hostilities (whether war
be declared or not), invasion, act of foreign enemies, the nuclear and
pressure wave risk described in Article 9.6. or in so far as it relates
to Indonesia in which the Goods are being and are to be supplied and the
Works are being and are to be executed or maintained, rebellion,
revolution, insurrection, military or usurped power, civil war, or
unless solely restricted to the
53
employees of the CONTRACTOR or of his Sub-contractors and arising from
the conduct of the Works, riot, commotion or disorder.
44.3 If the force majeure occurred outside Indonesia, TELKOM may consider to
extend of Time of Completion without any additional cost to TELKOM,
provided that the CONTRACTOR shall proves with a letter statement issued
by Authorized Institution related country which related to event of
force majeure.
44.4 If a Force Majeure situation arises, the CONTRACTOR shall promptly
notify TELKOM in writing of such condition and the cause thereof. The
Contract may be amended or its duration extended or terminated wholly or
partly by mutual agreement of Parties.
44.5 In the event of force majeure, the CONTRACTOR shall be entitled to
suspension of the execution of the Contract for the period such force
majeure and its consequences will last. However, the CONTRACTOR shall
seek all reasonable alternative means to continue its obligations for
the Contract area(s) not affected by the force majeure event.
44.6 In case of the suspension of the Works caused by the force majeure
event, the CONTRACTOR shall properly protect and secure the Works during
such suspension period. If such protection and securing of the Works is
deemed impracticable, the matter shall be notified by the CONTRACTOR to
TELKOM in writing by clarifying the reason and shall be settled through
negotiation between both Parties hereto.
44.7 Should the suspension as specified in Article 44.5. have continued for a
period exceeding 6 (six) months, either of the Parties hereto shall be
entitled to terminate the Contract with respect to the remaining Works
and shall give notice of termination by registered mail or any
alternative means to the other Party.
44.8 In the case of such termination, TELKOM
54
shall pay to the CONTRACTOR the value of the Goods forwarded to the Site
in Indonesia and the cost of the Works executed prior to the
termination. For all the expenses to be made by the CONTRACTOR for the
termination of the Contract, equitable solution shall be made through
negotiation by both Parties hereto.
ARTICLE 45
TERMINATION FOR INSOLVENCY
TELKOM may, at any time, terminate the Contract by giving a written notice to
the CONTRACTOR, without compensation to the CONTRACTOR, if the CONTRACTOR
becomes bankrupt or otherwise insolvent, provided that such termination will not
prejudice or affect any right of action or remedy which has accrued or will
accrue thereafter to TELKOM.
ARTICLE 46
TERMINATION FOR CONVENIENCE
46.1 TELKOM, may by written notice sent to the CONTRACTOR, terminate the
Contract, in whole or in part, at any time for its convenience. The
notice of termination shall specify that a) termination is for TELKOM's
convenience, b) the extent to which the CONTRACTOR's performance under
the Contract is terminated, and c) the date upon which such termination
becomes effective.
46.2 The Goods that are complete and ready for shipment within 30 (thirty)
days after the CONTRACTOR's receipt of notice of termination shall be
purchased by TELKOM at the Contract terms and prices. For the remaining
Goods, TELKOM may elect:
a. to have any portion completed and delivered at the Contract terms
and Price, and/ or;
b. to cancel the remainder and pay to the CONTRACTOR an agreed amount
for partially completed Goods and for materials, equipment, and
parts previously procured by the CONTRACTOR.
55
c. for the Works that have been executed prior to effectiveness of
notice of termination, TELKOM shall pay to the CONTRACTOR for all
reasonable costs incurred in such execution of the Works, in due
consideration of the sum already paid to the CONTRACTOR.
ARTICLE 47
RESOLUTION OF DISPUTES
47.1 TELKOM and CONTRACTOR shall make every effort to resolve amicably by
direct informal negotiation any disagreement or dispute arising between
them under or in connection with the Contract. For this purpose, TELKOM
and the CONTRACTOR shall establish Dispute Review Panel as mentioned in
Article 47.2 of this Contract.
47.2 If after thirty (30) days from the commencement of such informal
negotiations, TELKOM and the CONTRACTOR have been unable to resolve
amicably a Contract dispute, either Party may require that the dispute
be referred for resolution to the formal mechanisms specified herein.
These mechanisms may include, but are not restricted to, conciliation
mediated by a third party, adjudication in an agreed national
arbitration, Indonesian National Board Arbitration (Badan Arbitrase
Nasional Indonesia) in accordance with the laws of Indonesia.
47.3 The Parties hereto agree decision of BANI shall be final and binding
upon them and therefore no other legal appeal may be permitted to any
court of competence. Upon decision of BANI aforesaid, all terms and
conditions of this Contract shall remain valid and the respective
Parties' obligations shall be completed until such dispute is declared
to be settled.
47.4 The costs incurred by the Dispute Review Panel for the first two members
in the performance of its duties and responsibilities shall be borne
respectively by TELKOM and the CONTRACTOR, and for the third member
equally by TELKOM and the
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CONTRACTOR.
ARTICLE 48
LANGUAGE AND MEASUREMENT SYSTEM
The Contract shall be written in the English and Indonesian languages and shall
be indicated in metric units of measurements system. The Indonesian version of
the Contract shall prevail in case of difference in interpretation between the
English version and the Indonesian version. All correspondence and other
documents pertaining to the Contract which are exchanged by the parties shall be
written in Indonesia or English.
ARTICLE 49
APPLICABLE LAWS AND COMPLIANCE WITH
STATUTES, REGULATIONS, AND BY-LAWS
49.1 The Contract shall be interpreted in accordance with the laws of
Republic of Indonesia.
49.2 The CONTRACTOR shall, in all matters arising in the performance of the
Contract, conform in all respects with the provisions of national or
state statutes, ordinances or other laws or any regulations or by-laws
of any local or other duly constituted authority that shall be
applicable to the Works, and shall keep TELKOM indemnified against all
penalties and liabilities of any kind for breach of any such satutes,
ordinances or laws, regulations or by-laws.
49.3 TELKOM assumes that the CONTRACTOR has thoroughly informed himself about
such laws and regulations, and the CONTRACTOR shall be responsible for
the observance of the same.
49.4 Should there occur in Indonesia, subsequent to the date of this
Contract, any change to the provisions of national or state statute,
ordinance or other law or any regulation or by-law of any local or other
duly constituted authority, or the introduction of any such national
statute or others which causes an increase or decrease of the Contract
Price and/or substantial effects in the Time of Completion in the
CONTRACTOR's performance under the Contract, such
57
increase or decrease of the Contract Price and/or Time of Completion
shall equitably adjusted by mutual agreement between the Parties.
ARTICLE 50
NOTICES
50.1 Any notice given by one party to the other pursuant to the Contract
shall be sent in writing and shall be addressed to TELKOM and the
CONTRACTOR as follows :
a. TELKOM
------
Project Manager for Capacity Expansion of Tanjung Pandan --
Pontianak Submarine Cable System
PT TELEKOMUNIKASI INDONESIA Tbk. Head of Long Distance Division
Graha Citra Caraka, Lantai M Xxxxx Xxxxx Xxxxxxx Xxx 00 Xxxxxxx -
00000, Xxxxxxxxx
Phone No. : (000) 0000000
Fax No. : (000) 0000000
CC : Director of Network Business
b. CONTRACTOR
----------
Project Manager for Capcity Expansion of Tanjung Pandan -- Pontianak
submarine cable system. (Contractor Representative)
Submarine Networks Division
Shin-Tamachi Building, 34-6, Shiba 5-chome, Xxxxxx-xx, Xxxxx
000-0000, Xxxxx
Phone No. : x00-0-0000-0000
Fax No. : x00-0-0000-0000
50.2 A notice shall be effective when delivered and signed acknowledge
receipt or on the notice's effective date, whichever is later.
58
ARTICLE 51
CONTRACTOR'S PERSONNEL
51.1 Employees of CONTRACTOR for the execution of the Works under this
Contract shall, at all times, be identified and recognized as the
employees of CONTRACTOR under his administrative control, and shall at
no time be identified as employees of TELKOM.
51.2 CONTRACTOR shall obtain and furnish necessary security clearance,
personnel passports, visas and other documents for personnel performing
services under this Contract.
51.3 At all times covered by this Contract, CONTRACTOR shall exercise
complete control over his employees.
51.4 CONTRACTOR and his employees shall conform to all applicable local laws,
regulations and ordinances, and shall promptly correct any violations
brought to his attention.
51.5 CONTRACTOR shall be responsible for the professional and technical
competence of his employees and try his best to select and employ only
those persons who in his judgment will be reliable and competent and who
will comply with local laws and customs and conform to a high standard
of moral and ethical conducts.
51.6 CONTRACTOR shall agree upon written request from TELKOM's Project
Manager after discussion with CONTRACTOR, to terminate the employment of
any of his employees performing the work under this Contract, if
TELKOM's Project Manager considers that such termination is necessary to
protect the interest of TELKOM and/or the Government of Indonesia.
51.7 CONTRACTOR shall bear all expenses necessary for such termination of
employment and shall provide personal for replacement, at his own
expense.
51.8 CONTRACTOR shall utilize as many local personnel as possible, and
CONTRACTOR's expatriate personnel shall be limited only to engineers,
specialized technicians and
59
administrative personnel who are not available in Indonesia.
ARTICLE 52
USE OF LOCAL PERSONNEL
The CONTRACTOR is encouraged, to the extent practicable and reasonable, to
employ staff and labor with the required qualifications and experience from
sources within Indonesia.
ARTICLE 53
SOFTWARE LICENSE
53.1 Subject to the terms and conditions in this Contract, CONTRACTOR grants
to TELKOM the non-exclusive, non-transferable and non-sublicensable
license to use the software solely on the Goods and at the Sites except
as otherwise expressly agreed in writing between the Parties and to use
the software documentation for such aforementioned purpose.
53.2 TELKOM shall be entitled to produce back-up copy of each item of the
software, respectively, whereby the use of such back-up copy shall be
limited to replace the original software, if the original software is
inoperable. TELKOM shall keep records about the storage of such back-up
copies and present such records to CONTRACTOR upon request.
53.3 TELKOM acknowledges and agrees that the software and the software
documentation contain proprietary and confidential information and trade
secrets of CONTRACTOR and its third party licensors, and agrees to keep
and treat such software and software documentation confidential.
53.4 TELKOM shall a) not reproduce, copy, or modify the software in whole or
in part except as authorized by CONTRACTOR in writing or as provided in
this Section; and b) not attempt to decompile, reverse engineer,
disassemble, reverse translate, or in any other manner decode the
software except as specifically authorized by compulsory law.
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ARTICLE 54
MISCELLANEOUS
54.1 Headings. All headings of the articles set forth in this Contract shall
only be for convenience and therefore it shall not alter, add or affect
certain meaning in the interpretation of this Contract.
54.2 Contactor shall make by its own costs 25 (twenty five) copies of this
Contact to be delivered to TELKOM for the control of implementation of
the Contract and other related activities.
54.3 In the event any of the articles of this Contract is unenforceable, then
such article shall be deleted and shall be deemed to be of no force or
effect. The Parties shall, to the extent possible, negotiate in good
faith to agree upon an enforceable provision having a materially similar
effect, and this Contract shall be amended accordingly.
54.4 In the implementation of this Contract the Parties shall consider
business ethics as a public ethics to success and result of Project
quality.
ARTICLE 55
EFFECTIVE DATE OF CONTRACT (EDC)
This Contract shall be effective on the date, month and year first above
written.
IN WITHNESS WHEREOF, this Contract is made in three (3) original and executed in
Jakarta by duly representatives of the Parties hereto in view of prevailing
laws, bearing sufficient stamp duties, each of which shall be binding and having
the same legal power.
Signed by
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For and on behalf of:
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PT TELEKOMUNIKASI INDONESIA, Tbk CONTRACTOR
NEC CORPORATION
S A R W O T O XXXX XXXXXXXX
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61
HEAD OF TELKOM LONG DISTANCE GENERAL MANAGER
SUBMARINE NETWORKS DIVISION
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