EXHIBIT 4.11
MASTER PROCUREMENT PARTNERSHIP AGREEMENT
NO. K. TEL.217/HK.910/UTA-00/2002
DATED DECEMBER 23, 2002
BETWEEN
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA, TBK.
AND
SAMSUNG CONSORTIUM
- SAMSUNG ELECTRONICS CO., LTD.
- PT MITRAGUNA INTIKOM
TABLE OF CONTENTS
CHAPTER 1. GENERAL TERMS AND CONDITIONS................................................... 6
ARTICLE 1. DEFINITIONS.................................................................... 6
ARTICLE 2. COMMENCEMENT AND DURATION OF AGREEMENT......................................... 15
ARTICLE 3. PROJECT DESCRIPTION............................................................ 16
ARTICLE 4. SCOPE OF WORK AND DELIVERABLES................................................. 17
ARTICLE 5. PROCUREMENT PARTNERING COVENANTS............................................... 20
ARTICLE 6. IMPORTATION; LOCAL FACILITIES; COMPLIANCE WITH LICENSES AND PERMITS............ 22
ARTICLE 7. DELIVERY PROCEDURES............................................................ 24
ARTICLE 8. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS.................................... 26
ARTICLE 9. FORCE MAJEURE.................................................................. 32
ARTICLE 10. TRANSFER OF RISK AND TITLE..................................................... 33
ARTICLE 11. INDEMNIFICATION................................................................ 33
ARTICLE 12. EQUIPMENT MAINTENANCE AND SUPPORT.............................................. 35
ARTICLE 13. LIQUIDATED DAMAGES FOR DELAY................................................... 36
ARTICLE 14. TERMINATION OF THE AGREEMENT................................................... 38
ARTICLE 15. GOVERNING LAW.................................................................. 41
ARTICLE 16. SETTLEMENT OF DISPUTES......................................................... 41
ARTICLE 17. LANGUAGE....................................................................... 44
ARTICLE 18. CORPORATE REPRESENTATIONS AND WARRANTIES....................................... 44
ARTICLE 19. CONFIDENTIAL INFORMATION....................................................... 45
ARTICLE 20. NOTICE......................................................................... 45
ARTICLE 21. GENERAL PROVISIONS............................................................. 47
CHAPTER 2. COMMERCIAL TERMS AND CONDITIONS................................................ 48
ARTICLE 22. CONTRACT VALUE................................................................. 48
ARTICLE 23. PRICES AND FEES................................................................ 49
ARTICLE 24. TAXES AND DUTIES............................................................... 50
ARTICLE 25. INSURANCE AND SAFETY........................................................... 50
i
CHAPTER 3. FINANCIAL TERMS AND PAYG....................................................... 52
ARTICLE 26. JOINT PLANNING SESSIONS, DESIGN REVIEW MEETINGS AND MONTHLY MEETINGS........... 52
ARTICLE 27. INSTALLED LINE PROCUREMENTS.................................................... 60
ARTICLE 28. PURCHASE ORDERS AND PROCEDURES................................................. 61
ARTICLE 29. PERFORMANCE BOND............................................................... 64
ARTICLE 30. TERMINATION OF PURCHASE ORDERS................................................. 65
ARTICLE 31. TERMS OF PAYMENT............................................................... 69
ARTICLE 32. PAYG PAYMENTS.................................................................. 71
ARTICLE 33. GENERAL SERVICES PAYMENTS...................................................... 75
ARTICLE 34. INVOICING...................................................................... 75
ARTICLE 35. FINANCING OF TELKOM'S PAYMENT OBLIGATIONS...................................... 76
ARTICLE 36. CHANGE REQUEST PROCEDURES...................................................... 77
ARTICLE 37. RELOCATION OF EQUIPMENT........................................................ 79
ARTICLE 38. DETAILS OF PARTNER'S BANK ACCOUNTS............................................. 80
CHAPTER 4. CONSORTIUM ORGANIZATIONAL MATTERS.............................................. 80
ARTICLE 39. CONSORTIUM MEMBERSHIP CRITERIA................................................. 80
ARTICLE 40. ASSIGNMENT AND SUBCONTRACTING.................................................. 80
ARTICLE 41. INVOLVEMENT OF LOCAL ENTITIES.................................................. 82
ARTICLE 42. LOGISTICS...................................................................... 83
ARTICLE 43. INVENTORY...................................................................... 84
ARTICLE 44. LOCAL SUPPORT INFRASTRUCTURE................................................... 85
ARTICLE 45. PROJECT MANAGEMENT............................................................. 86
ARTICLE 46. RESEARCH AND DEVELOPMENT....................................................... 89
ARTICLE 47. TRAINING, TRANSFER OF KNOW HOW AND DEVELOPMENT OF INTELLECTUAL PROPERTY........ 90
ARTICLE 48. MANAGEMENT FORUM............................................................... 93
ARTICLE 49. DEVELOPMENT OF INDONESIAN INDUSTRY............................................. 93
CHAPTER 5. TECHNICAL PROVISIONS........................................................... 94
ARTICLE 50. GENERAL REQUIREMENT FOR EQUIPMENT.............................................. 94
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ARTICLE 51. QUALITY ASSURANCE.............................................................. 95
ARTICLE 52. SURVEY, DESIGN, AND PLANNING................................................... 95
ARTICLE 53. SITE PREPARATION, ACQUISITION, RIGHTS OF WAY AND PERMITS....................... 97
ARTICLE 54. INSTALLATION PROCEDURES AND STANDARDS.......................................... 99
ARTICLE 55. TESTING AND COMMISSIONING...................................................... 101
ARTICLE 56. INTEGRATION, INTEROPERABILITY AND COMPATIBILITY................................ 111
ARTICLE 57. CUT OVER PROCEDURES............................................................ 113
ARTICLE 58. COMPLIANCE WITH ENVIRONMENTAL STANDARDS........................................ 114
ARTICLE 59. DEVELOPMENT OF MEDIATION DEVICE................................................ 115
ARTICLE 60. DOCUMENTATION.................................................................. 115
CHAPTER 6. SERVICE LEVEL AGREEMENTS....................................................... 118
ARTICLE 61. SERVICE LEVEL AGREEMENTS....................................................... 118
CHAPTER 7. INTER-OPERABILITY AND CO-ORDINATION REQUIREMENTS FOR PACKAGE 1 AND PACKAGE 2... 119
ARTICLE 62. GENERAL........................................................................ 119
ARTICLE 63. JPS, DRMs AND MONTHLY MEETINGS................................................. 120
ARTICLE 64. COMMISSIONING TESTS............................................................ 122
APPENDICES
Appendix 1 Details of Consortium Members
Appendix 2 Consortium Agreement
Appendix 3 Scope of Work
Appendix 4 Price Schedule
Appendix 5 Technical Specifications
Appendix 6 Demand Forecast
Appendix 7 Deployment Plan
Appendix 8 Project Management Plan
Appendix 9 Implementation Schedule
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Appendix 10 Local Infrastructure
Appendix 11 Pay as you Grow (PAYG)
Appendix 12 Purchase Orders
Appendix 13 Xxxx of Quantities
Appendix 14 Technical and Engineering Norms
Appendix 15 Financing Arrangements
Appendix 16 Project Schematic
Appendix 17 Quality Assurance Guidelines/Acceptance Test Procedures
Appendix 18 Change Request
Appendix 19 Training
Appendix 20 Service Level Agreement
Appendix 21 Inter-operability Commitment Agreement
Appendix 22 Documentation
Appendix 23 Technical Terms
Appendix 24 Non-Disclosure Agreement
Appendix 25 Performance Bond
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MASTER PROCUREMENT PARTNERSHIP
AGREEMENT
NO. K.TEL.217/HK.910/UTA-00/2002
23 DECEMBER 2002
THIS MASTER PROCUREMENT PARTNERSHIP AGREEMENT (the "Agreement") is made as of 23
December 2002
BETWEEN:
1. PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA, TBK., a
limited liability public State-owned company established under the laws
of the Republic of Indonesia, having its head office at Jalan Japati
No. 1, Bandung, in this legal action duly represented by KRISTIONO in
his capacity as President Director, and having its office at Xx. Xxxxxx
Xx. 0, Xxxxxxx, hereinafter referred to as "TELKOM".
and
2. SAMSUNG CONSORTIUM, established based on Consortium Agreement dated 11
December 2002, comprised of SAMSUNG ELECTRONICS CO., LTD, as leader of
the consortium having its legal domicile in Seoul, Korea, for the
purpose of signing of this Agreement being duly represented by Soon Ho
Hong, in his capacity as Senior Vice President and General Manager,
Telecommunication Systems Division, and PT MITRAGUNA INTIKOM, as a
member of the Consortium, having its legal domicile in Jakarta,
Indonesia, for the purpose of signing of this Agreement being duly
represented by Budi F. Japadermawan, in his capacity as Director,
hereinafter jointly referred to as "PARTNER".
(TELKOM and PARTNER are individually hereinafter referred to as a
"Party" and collectively as the "Parties").
WHEREAS
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(A) TELKOM is a telecommunications network and service provider which
provides Fixed telecommunications services (fixed wireline and fixed
wireless) and telecommunications infrastructure throughout Indonesia;
(B) TELKOM has embarked on a significant investment program to modernize
and expand its network infrastructure (the T-21 Program);
(C) PARTNER under the control of the leading technology supplier, Samsung
Electronics Co. Ltd., and having at least one Indonesian member with
specialized telecommunications expertise, knowledge or infrastructure,
has the necessary technical expertise, financial resources and
strategic business interest in establishing a long term business
partnership with TELKOM for the procurement of core network assets
contemplated in the T-21 Program. Details of each Consortium members
are set out in Appendix 1;
(D) TELKOM, in accordance with the procedures established in the RfP dated
21 February 2002 has selected and appointed PARTNER under the control
of the leading technology supplier to enter into this Agreement for the
purpose of implementing the T-21 Program.
CHAPTER 1. GENERAL TERMS AND CONDITIONS
Article 1. Definitions
1.1 Where the context permits, the following expressions shall have the
following meanings:
"XXXX OF QUANTITIES" ("BoQ") means the xxxx of quantities set out in
Appendix 2, as may be modified from time to time in accordance with
Articles 26 and 36;
"BUSINESS DAY(s)" means a day, other than a Saturday, Sunday or
official Indonesian holiday, on which commercial banks in Jakarta are
open for business during normal working hours;
6
"CHANGE REQUEST" means the forms attached as Appendix 18, which in accordance
with Article 36 shall be used to make any and all amendments, among others, to
the contents of a Purchase Order;
"COMMISSIONING" means the successful testing, integration and acceptance testing
of the Deliverables in a state ready for full commercial operation by PARTNER
as certified by TELKOM's issuance of either an Integrated System Acceptance Test
Certificate or a Partial Integrated System Acceptance Test Certificate in
accordance with the terms of this Agreement. "Commission" or "Commissioned"
shall be construed accordingly;
"CONSORTIUM" means the consortium consisting of a foreign company (Samsung
Electronics Co., Ltd) and one or more Indonesian companies including PT
Mitraguna Intikom, whose details are listed in Appendix 1 which have entered
into a consortium agreement dated 11 December 2002 as attached in Appendix 2;
"CONTRACT VALUE" means with respect to the overall value of the procurement
contract contemplated by this Agreement, the sum of all of the Purchase Orders
and with respect to each Purchase Order, the total payment (in USD and IDR as
the case may be) to be made by TELKOM to PARTNER under each Purchase Order for
all Deliverables to be supplied under the said Purchase Order(s) and for the
full and diligent performance by PARTNER of all of its obligations and covenants
under this Agreement, including all amounts payable to PARTNER for ownership or
license rights to inventions, patents, copyrights, trade secrets, registered
designs and any other Intellectual Property Rights embodied in or relating to
the Deliverables, and for costs of insurance, freight and all other costs
specified by this Agreement, subject to any variations expressly permitted under
this Agreement or the respective Purchase Order(s);
7
"CUTOVER PERIOD" means the time period set forth in Article 57.2;
"DELIVERABLES" means the equipment, components, software and Documentation to be
delivered and all related services to be performed by PARTNER pursuant to
Purchase Order(s);
"DEMAND FORECAST" means the demand forecast set out in Appendix 6 as updated
from time to time by the Parties during a JPS or DRM;
"DESIGN REVIEW MEETING" ("DRM") means a design review meeting conducted in
accordance with Article 26.2;
"DEPLOYMENT PLAN" means the number of installed lines that are projected to be
deployed in each year based on subscriber targets as set out in Appendix 7 and
as may be amended from time to time in accordance with Article 26;
"DIVRE" means a TELKOM Regional Division;
"DOCUMENTATION" means the documentation listed in Appendix 22;
"DOCUMENTATION ACCEPTANCE CERTIFICATE" means the certificate signed by TELKOM
indicating that it is satisfied the documentation provided by PARTNER complies
with the requirements of this Agreement;
"FIRST PURCHASE ORDER" means the CDMA2000-1X Initial Purchase Order Contract No.
X.XXX. 180/HK.940/UTA-00/2002 made between the Parties on 9th October 2002;
"FISCAL YEAR" means the financial year of TELKOM commencing January 1 and ending
December 31 of each calendar year;
8
"GOODS DELIVERY CERTIFICATE" means the certificate signed by TELKOM indicating
that the goods as delivered by PARTNER have been checked and inspected by TELKOM
in accordance with Article 7.3;
"IMPLEMENTATION SCHEDULE" means the time schedule and milestones set out in
Appendix 9 as amended from time to time in accordance with Article 26;
"INSTALLED LINE PROCUREMENTS" means the number of installed lines that will be
procured by TELKOM as agreed by the Parties in accordance with the flexible
procurement methodology contemplated in Article 27;
"INTEGRATED SYSTEM ACCEPTANCE TEST" OR "ISAT" means the integrated system test
to be performed upon completion of all Sub-systems and other tests (including
tests on measuring equipment and spare parts), in accordance with Article 55 and
Appendix 17 (Quality Assurance Guidelines/Acceptance Test Procedures);
"INTEGRATED SYSTEM ACCEPTANCE TEST CERTIFICATE" means the acceptance certificate
to be issued and signed by TELKOM after successful completion of an Integrated
System Acceptance Test;
"INTELLECTUAL PROPERTY RIGHTS" means patents, registered designs, designs,
copyrights, semiconductor mask works, and other forms of intellectual or
industrial property, know-how, inventions, formulae, confidential or secret
processes, trade secrets and confidential information, and any other protected
rights and assets, and any licenses and permits in connection therewith, in each
case in any part of the world and whether or not registered or registerable and
for the full period thereof and all extensions and renewals thereof, and all
applications for registration in connection with the foregoing;
9
"IOP AGREEMENT" means the Interoperability Commitment Agreement attached as
Appendix 21;
"IOP CERTIFICATE" means the certificate or statement issued and signed by TELKOM
confirming that PARTNER's equipment has passed all required interoperability
tests in accordance with IOP Agreement;
"JOINT PLANNING SESSION" ("JPS") means a joint planning session to be conducted
in accordance with Article 26.1;
"LOCAL CONTENT" means the equipment and services to be provided through Local
Indonesian Entities or in the Indonesian currency (IDR) amounting to at least
20% of the total Contract Value;
"LOCAL INDONESIAN ENTITIES" means individuals that are Indonesian nationals,
proprietary concerns or partnerships owned by Indonesian nationals, or companies
in which Indonesian nationals hold more than 51% shares. Subsidiaries of
international companies, their representative offices and agencies or agents
operating in Indonesia will not be considered as "Local Indonesian Entities" for
this purpose;
"LOCATION" means a location within a Project area relating to a TELKOM PSTN
switch (STO);
"NETWORK" means the telecommunications network to be designed, built and
supplied by PARTNER pursuant to this Agreement, more particularly described in
Appendix 3 (Scope of Work);
"PACKAGE 1" means as the context requires BSS procurement for DIVRE II;
"PACKAGE 2" means as the context requires, either (i) the nationwide package of
NSS procurement for TELKOM's Regional Divisions, excluding DIVRE III, or (ii)
the regional package of BSS procurement for DIVRE IV, V, VI and VII;
10
"PACKAGE LEVEL" means as the context requires, either (i) the nationwide package
of NSS procurement for TELKOM's Regional Divisions, excluding DIVRE III, or (ii)
the regional package of BSS procurement for DIVRE IV, V, VI and VII;
"PACKAGE LEVEL REQUIREMENT" means the constituent requirements of each Package
Level;
"PARTIAL INTEGRATED SYSTEM ACCEPTANCE TEST" means the integrated system test to
be performed upon completion of one or more Sub-systems and other tests
(including tests on measuring equipment and spare parts), in accordance with
Article 55 and Appendix 17) (Quality Assurance Guidelines /Acceptance Test
Procedures);
"PARTIAL INTEGRATED SYSTEM ACCEPTANCE TEST CERTIFICATE" means the acceptance
certificate to be issued and signed by TELKOM after successful completion of a
Sub-System Acceptance Test pursuant to Article 55.8 for which an Integrated
System Acceptance Test cannot be conducted within a period of thirty (30)
calendar days by reason of delays in testing of a Sub-system which TELKOM is
responsible to provide;
"PAYG PAYMENT PERIOD" means a period calculated in relation to the Purchase
Orders aggregated on a DIVRE basis in the same Quarter, such period commencing
from the last date of the Quarter in which the relevant Integrated System
Acceptance Test Certificate issued by TELKOM in relation to Commissioning of the
Deliverables in the relevant Purchase Order(s) and ending four (4) years later,
or upon TELKOM'S payment of the last PAYG payment due (of the last Purchase
Order issued), if earlier;
"PAYG VALUE" means the proportionate value of each Purchase Order payable
pursuant to Article 31.4;
11
"PERCENTAGE INDEX" means the index expressed as a percentage calculated in
accordance with Article 27.4;
"PERFORMANCE BOND" means the performance bond required to be delivered by
PARTNER to TELKOM pursuant to Article 29;
"PROJECT MANAGEMENT PLAN" ("PMP") means the project management plan to be
provided by PARTNER pursuant to Appendix 14;
"PROJECT" means the work to be undertaken by PARTNER for Package 2 of the T-21
Program pursuant to this Agreement for (i) either the nationwide package of NSS
procurement for TELKOM's Regional Divisions excluding DIVRE III, or (ii) the
regional package of BSS procurement for DIVRE IV, V, VI and VII;
"PURCHASE ORDER" means a document issued by TELKOM from time to time pursuant to
Article 28 and acknowledged by PARTNER for the supply and Commissioning by
PARTNER of all or parts of the Network and/or for the provision of services. Any
attachments or appendices to a Purchase Order and any amendments to a Purchase
Order in accordance with Article 36 shall form an integral part of the Purchase
Order
"QUARTER" means a calendar three month period, ending on March 31, June 30,
September 30, and December 31 of each calendar year;
"RfP" means the Request for Proposals for the T-21 Program dated 21 February
2002;
"SCOPE OF WORK" means the scope of work set forth in Appendix 3;
"SITE" means the site within a Location where a BTS is to be installed;
"SECOND PURCHASE ORDER" means the first Purchase Order to be issued by TELKOM
under this Agreement following issuance of the First Purchase Order;
12
"SLA" OR "SERVICE LEVEL AGREEMENT" means the 3-year service level agreement to
be entered into between the Parties as set forth in Article 61;
"SUBSCRIBER RECORDER" means the TELKOM's database system in the MSC/NSS in the
related DIVRE;
"SUBSCRIBER TARGET" means the number of lines to be deployed in the
DIVRE/Location for the relevant Quarter based on the Deployment Plan as updated
and determined at the related DRM;
"SUB-SYSTEM" means an MSC, IWF, SMSC, WAP Gateway, WAP Server, WIN, VMS, HLR,
VLR, Authentication Center, NSS NEM (equipment grouped as NSS); BSC, BTS,
transmission equipment BSS NEM (equipment grouped as BSS); PDSN, AAA, HA, DNS,
Fire wall, PDN's NEM (equipment grouped as PDN), and other similar or related
equipment, including all associated software and components;
"SYSTEM" means two or more Subsystems forming a network that is ready for
commercial service;
"SUB-SYSTEM ACCEPTANCE TESTS" means the tests to be performed upon completion of
particular Sub-systems in accordance with Appendix 17;
"TECHNICAL SPECIFICATIONS" means collectively, the technical specifications set
out in Appendix 5 and all specifications agreed pursuant to amendments to
Agreement or on a Purchase Order;
"TERRITORY" means TELKOM's Regional Divisions (DIVRE) IV, V, VI and VII covered
by BSS Package 2, whereas in the case of the NSS package, the Territory shall
comprise TELKOM's Regional Divisions excluding DIVRE III;
"TRAINING ACCEPTANCE CERTIFICATE" means the certificate signed by TELKOM
indicating that the training provided by PARTNER complies with the requirements
of this Agreement;
13
1.2 Technical Terms. Technical terms used in this Agreement (e.g., BTS,
NSS) are defined in Appendix 23.
1.3 Writings. References in this Agreement to writings shall include
typewriting, printing, lithography, photography, telefax, facsimile,
e-mail and telex messages and any mode of reproducing words in a
legible and non-transitory form.
1.4 Plural; Gender; Persons. Words importing the singular include the
plural and vice versa; words importing a gender include every gender;
and references to persons include bodies corporate or unincorporate.
1.5 Agreement. Any document expressed to be "in the agreed form" or
"agreed" means a document approved by TELKOM and PARTNER and (for the
purpose of identification) initialled on behalf of each of them.
1.6 Headings. Headings in this Agreement are used for convenience only and
shall not affect the construction of this contract.
1.7 Days. In this Agreement, unless the context otherwise requires,
references to a "day" shall mean a period of twenty-four (24) hours
ending at 12 midnight. Whenever in this Agreement a period of time is
referred to, the day upon which that period commences shall be the day
after the day from which the period is expressed to run, or the day
after the day upon which the event occurs which causes the period to
start running.
1.8 References. References to Articles and Appendices are references to the
Articles of and the Appendices to this Agreement. References to any
laws or regulation shall be construed as references to those laws and
regulations as from time to time amended or re-enacted.
14
1.9 Priority of Documents. In the event of any inconsistency between this
Agreement and the Appendices, the terms and conditions in this
Agreement shall prevail.
1.10 General and Specific Provisions. In the event of ambiguity over the
application of any provision of this Agreement, this Agreement shall be
interpreted to favour the specific meaning and/or application over the
general meaning and/or application.
1.11 Appendices
Appendix 1 Details of Consortium Members
Appendix 2 Consortium Agreement
Appendix 3 Scope of Work
Appendix 4 Price Schedule
Appendix 5 Technical Specifications
Appendix 6 Demand Forecast
Appendix 7 Deployment Plan
Appendix 8 Project Management Plan
Appendix 9 Implementation Schedule
Appendix 10 Local Infrastructure
Appendix 11 Pay as you Grow (PAYG)
Appendix 12 Purchase Orders
Appendix 13 Xxxx of Quantities
Appendix 14 Technical and Engineering Norms
Appendix 15 Financing Arrangements
Appendix 16 Project Schematic
Appendix 17 Quality Assurance Guidelines /
Acceptance Test Procedures
Appendix 18 Change Request
Appendix 19 Training
Appendix 20 Service Level Agreement
Appendix 21 Inter-operability Commitment
Agreement
Appendix 22 Documentation
Appendix 23 Technical Terms
Appendix 24 Non-Disclosure Agreement
Appendix 25 Performance Bond
Article 2.11 Commencement and Duration of Agreement
2.1 This Agreement shall become effective upon the latest to occur of (i)
signing of this Agreement, and (ii) signing of the Service Level
Agreement, and shall continue in effect until PARTNER and TELKOM have
fully performed their respective obligations under this Agreement,
unless earlier terminated in accordance with Article 14.
15
2.2 The Scope of Work related to Network deployment shall be carried out
and completed within 42 months (six months after end of Fiscal Year
2005), subject to the terms of this Agreement. The period for
completion includes Sundays and government holidays, days for
consultancies (meeting and documents approval) with TELKOM and the day
for signing an Integrated System Acceptance Test Certificate.
2.3 TELKOM's obligations regarding payment for the Deliverables shall end
upon TELKOM's payment of the last PAYG payment due, subject to the
performance of TELKOM's obligations under this Agreement.
2.4 The initial term of the SLA to be entered into by the Parties pursuant
to Article 61 shall be for a period expiring three (3) years from
January 1, 2003, unless earlier terminated in accordance with the SLA,
it being understood that the equipment supplied under the First
Purchase Order under Contract No: K.TEL.180/NK.940/UTA-00/2002, dated
9 October 2002, shall be covered under warranty until the SLA becomes
effective.
2.5 The First Purchase Order is superceded by this Agreement and the
quantities covered by the First Purchase Order, together with all terms
and conditions of payment, including the PAYG payment methodology set
forth in Article 32, are hereby deemed to be part of this Agreement.
The First Purchase Order shall hereafter be deemed as having been
issued pursuant to this Agreement.
Article 3. Project Description
3.1 This Agreement is an umbrella contract covering the various steps
involved in the T-21 Program, from demand forecasting, Network design,
issuance of Purchase Orders, shipping and receiving, installation and
commissioning, operation and maintenance support, customer utilization
of the equipment, to the Pay As You Grow payment scheme as illustrated
in the schematic in Appendix 16 (Project Schematic). Subject to
agreement of the Parties on procurement requirements for Installed Line
procurements in
16
accordance with any adjustments agreed under the flexible procurement
methodology contemplated for each JPS and DRM as set forth in Article
26, PARTNER shall be obligated to undertake and be jointly responsible
for the demand forecast and solely responsible for the survey, design,
development, manufacture, delivery, supply, installation, integration
and Commissioning of the Network, including all project management,
training and other related services, on a turnkey basis.
3.2 "TURNKEY BASIS" means that pursuant to the Scope of Work once PARTNER
receives a Purchase Order, PARTNER shall be jointly responsible for the
demand forecast and solely responsible for the survey, design,
development, manufacture, delivery, supply, installation, integration
and Commissioning of the Network, and the remedying of any defects, so
as to make the Network ready for service. PARTNER shall also do
everything necessary as reasonably may be inferred from this Agreement
as being required of PARTNER to perform all of its obligations under
this Agreement. PARTNER shall provide all personnel, goods, consumables
and other things and services, whether of a temporary or permanent
nature, required in and for the design, execution, completion of the
Network and the remedying of defects. TELKOM shall cooperate with
PARTNER as it performs its obligations under this Agreement on a
turnkey basis.
Article 4. Scope of Work and Deliverables
4.2 The Scope of Work for this Project is set out in Appendix 3 (Scope of
Work).
4.2 PARTNER agrees and undertakes to:
4.2.1 carry out the Scope of Work in a good and workmanlike manner in
accordance with the Technical Specifications using materials necessary
for the completion of
17
the said works which are of the quality and standards specified in
Appendix 5 (Technical Specifications);
4.2.2 be solely responsible for the correct design, quality and adequacy of
the works and for the correct quantities of materials, articles and
goods necessary for completion of the said works in accordance with
Appendix 3 (Scope of Work) and Appendix 5 (Technical Specifications);
4.2.3 provide the equipment, components, software, and Documentation as
specified in Appendix 3 (Scope of Work), Appendix 5 (Technical
Specifications) and Appendix 4 (Price Schedule) and all cables,
connectors and other miscellaneous materials required for completion of
the Network in accordance with the terms of this Agreement. All such
equipment, components, software and Documentation shall conform in all
respects with the technical, capacity, functionality, design features
and performance specifications set out in Appendix 5 (Technical
Specifications);
4.2.4 conduct a survey, design, plan, develop, manufacture, deliver, install,
test, Commission, and interconnect the equipment and software and
provide all other services relevant or relating to the Network in
accordance with Appendix 3 (Scope of Work), Appendix 5 (Technical
Specifications) and Appendix 9 (Implementation Schedule), and otherwise
in accordance with this Agreement;
4.2.5 perform the works under each Purchase Order in accordance with Appendix
9 (Implementation Schedule) and complete each stage of the works by the
relevant dates or times specified;
4.2.6 provide the Documentation to TELKOM in accordance with this Agreement;
4.2.7 provide land acquisition and frequency licence application services in
accordance with this Agreement;
4.2.8 provide services to TELKOM upon request from TELKOM by the issue of a
Purchase Order in accordance with the
18
unit prices stated in Appendix 4 (Price Schedule);
4.2.9 provide technical personnel as specified in the Purchase Order in
accordance with the prices stated in Appendix 4 (Price Schedule);
4.2.10 provide training in accordance with Article 47 of this Agreement;
4.2.11 perform and comply with all its other obligations under this Agreement
and the respective Purchase Orders.
4.3 PARTNER shall ensure the proper interworking, interfacing and
integration of the Network with the equipment and software of any third
party vendor or other licensed operators in Indonesia which are
connected to Network equipment, software, and systems specified in
Appendix 3 (Scope of Work) and Appendix 5 (Technical Specifications) or
if not so specified, then in accordance with best practice industry
standards as agreed by the Parties.
4.4 PARTNER shall design the Network in such a way that, unless otherwise
agreed in writing:
4.4.1 individual Sub-systems (including all services) are deployable
regardless of the deployment status of other Systems or Sub-systems;
4.4.2 the Network can be readily scaled up or down to meet changing customer
demand;
4.4.3 the Network can be readily migrated from a fixed or limited mobility
network (allowing a subscriber to move within one BTS coverage area
only) to a full mobility network in the future;
4.4.4 the Network can be readily migrated to a third generation (3G) based
network in the future.
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Article 5. Procurement Partnering Covenants
5.1 The Parties agree to be guided by certain principles during
implementation of this Agreement. The general principles set out below
are intended to be implemented in good faith and are without prejudice
to the rights and obligations of each Party contained in this
Agreement;
5.1.1 TELKOM's objective to achieve the optimum performance of its
telecommunications networks in order to provide the best possible
service for its customers shall not be deemed incompatible with
PARTNER's objective to sell its equipment and services on commercial
terms for a sustained period;
5.1.2 The Parties agree that a key mutual objective is to support the
development of the Indonesian telecommunications industry and economy
through maximizing the amount of equipment, materials, manpower and
services procured locally within Indonesia;
5.1.3 The Parties agree to conduct regular consultations to discuss the
respective performance of the Network deployment with the aim of
resolving amicably and promptly any disputes that may arise from time
to time in the spirit of building joint business opportunities and
creating mutual value together so as to create a responsive and stable
commercial relationship between themselves;
5.1.4 PARTNER shall inform TELKOM as effectively and fully as possible, in
good time, of possible problems with any Deliverables which have been
delivered or which are to be delivered and of permitted material
changes in costs, deliveries and developments previously agreed upon
which may be relevant to TELKOM;
5.1.5 The Parties agree to inform each other as fully as possible of any
circumstance relevant to the Deliverables affecting the
telecommunication networks of TELKOM,
20
so as to enable one another to respond quickly to technology or
commercial developments. PARTNER shall grant TELKOM a right of first
refusal with respect to future equipment purchases for use in Package 2
exercisable within ninety (90) days of PARTNER's notification to TELKOM
of its estimated prices in relation to any new telecommunications
technology adaptable to Indonesia which has been developed by Samsung
Electronics Co. Ltd. or by its affiliated companies, before such
technology is offered to other telecommunications operators in
Indonesia. With respect to equipment for use in Package 1, PARTNER
shall offer equipment for use in Package 1 to TELKOM at least at the
same time (if not earlier) as it offers the equipment to other
telecommunications operators in Indonesia.
5.1.6 Subject to Chapter VII of this Agreement, PARTNER undertakes to consult
and co-operate with other relevant suppliers of equipment and/or
services relevant to this Agreement or to the Deliverables, in order to
achieve optimum functioning of the Deliverables before, during and
after delivery. Such consultation shall start at the earliest possible
time and shall include technical support with the aim of achieving the
optimum operation of the telecommunication networks of TELKOM;
5.1.7 The Parties shall pursue quality improvement and a degree of
standardisation suitable for the integrated management of the
telecommunication networks of TELKOM. To that end, PARTNER shall be
capable of adapting the Network under the T-21 Program to
state-of-the-art technology over the period of this Agreement;
5.1.8 One of TELKOM's key objectives in the T-21 Program is the purchase of
equipment and services that conform to international standards while
minimizing
21
major capital expenditures. PARTNER shall work with TELKOM to bring its
know-how and expertise to bear in meeting this objective. This means,
for instance, that PARTNER must use its best endeavours to analyse and
take into account the financial and technical consequences of
introducing its technology developments for TELKOM, especially in
relation to hardware and software delivered by PARTNER versus that
which is already in place in the telecommunication networks of TELKOM.
5.1.9 PARTNER shall take all reasonable measures necessary to communicate to
TELKOM the advantages and disadvantages of new technology developments,
including the newest tested technology offered by Samsung Electronics
Co. Ltd. or by its affiliated companies. PARTNER shall agree from time
to time with TELKOM on additions or improvements to the "road map" of
technological development and evolution contemplated for the Project
which can be implemented during the course of the Project in a timely
manner.
5.1.10 PARTNER has agreed that it shall not have exclusive rights in its
Package 1 (NSS) and Package 2 (NSS and BSS) area to install, deploy
equipment and/or provide services over the duration of the T-21
Program, in consideration of which TELKOM has agreed to procure from
PARTNER at least the minimum Installed Line Procurements as provided in
Chapter 3.
Article 6. Importation; Local Facilities; Compliance with Licenses and
Permits
6.1 Except as may otherwise be agreed between the Parties, Deliverables
which are imported into Indonesian shall be imported in the name of
TELKOM but under the physical arrangement and management of PARTNER.
All importation of Deliverables under this Agreement shall be
calculated on a cost
22
at Location/Site basis and shall be delivered at the agreed time and
place and in accordance with applicable Indonesian regulations and this
Agreement. PARTNER shall initially fund the payment of any import VAT,
sales tax on luxury goods, if applicable, prepayment of income tax
(Article 22) on imports, import or customs duties and all clearance
costs in relation to all imports. PARTNER shall at its own cost obtain
all required Indonesian import permits and approvals necessary to
import any equipment, components, spare parts and software into
Indonesia in the name of TELKOM. TELKOM shall cooperate with PARTNER in
this process and provide PARTNER with all documents reasonably
requested by PARTNER in connection with any import application required
to include TELKOM's name for purposes of importation. TELKOM shall
ensure prompt signature and delivery of documents required by the
competent authorities for such purposes.
6.2 TELKOM shall reimburse PARTNER for its prepayment of import VAT and
income tax (Article 22) on imports within twenty-one (21) Business
Days after receipt of a complete invoice from PARTNER. Customs duties
are included in the Contract Value and will be paid by TELKOM in
accordance with Articles 31 and 32. In the event a waiver is not
forthcoming and sales tax on luxury goods is assessed against any
Deliverables imported into Indonesia, the cost of such tax shall be
added to the Contract Value and be paid by TELKOM in accordance with
Articles 31 and 32.
6.3 PARTNER shall maintain complete and accurate inventory records of the
movement of such equipment after importation into Indonesia in
accordance with recognised industry practices and ensure that all
equipment imported into Indonesia pursuant to any Purchase Orders shall
be stored separately from all other equipment to facilitate inspections
by Indonesian customs authorities. Any imposition of customs duties or
penalties
23
due to any act, default or omission of PARTNER in breach of this
provision shall be borne by PARTNER.
6.4 PARTNER shall comply with the requirements of all local laws,
regulations, and decrees and with the lawful requirements of other
authorities in any way affecting any equipment, components or software
procured under this Agreement.
6.5 PARTNER will 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.
Article 7. Delivery Procedures
7.1 All physical deliveries of Deliverables covered by Purchase Orders
shall be accompanied by a consignment note, which includes:
7.1.1 Name and registered office of PARTNER;
7.1.2 Purchase Order number;
7.1.3 Date of shipment and delivery;
7.1.4 Quantities included; and
7.1.5 Shipping documents (such as xxxx of lading or air way bills) and/or
inland delivery documents.
7.2 Delivery of equipment to the intended Location/Site shall be
implemented by reference to complete Systems or Sub-systems and not
piecemeal, except as otherwise mutually agreed between the Parties.
7.3 TELKOM shall conduct a goods delivery inspection pursuant to Article
55.6 on delivery of goods at the intended Location/Site.
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7.4 PARTNER shall be responsible for delivery of the equipment, components
and software from the country of origin to the point of landing in
Indonesia, and from the point of landing to the intended Location/Site
as specified in the applicable Purchase Order in accordance with
Appendix 9 (Implementation Schedule). PARTNER shall be responsible for
all inland transportation shipping costs to the intended Location/Site.
7.5 PARTNER represents and warrants that all equipment and components
delivered are type-approved by the relevant authorities in Indonesia
and have passed quality assurance by TELKOM in accordance with the
quality assurance guidelines set forth in Appendix 7 (Quality Assurance
Guidelines / Acceptance Test Procedures).
7.6 PARTNER shall be responsible for the provision and cost of any of the
following facilities, equipment and services that may be required by
PARTNER and its staff;
7.6.1 all locally engaged skilled and unskilled personnel, including
electricians, wiremen, laborers, tradesmen, artisans, and their
equipment and tools;
7.6.2 any work and/or entry permits, licenses, visas, etc., necessary for
personnel employed or temporarily engaged by PARTNER and its
sub-contractors, and any income taxes incurred by such personnel or
corporate income taxes;
7.6.3 transportation (including, without limitation, to and from any
Location/Site), housing and medical facilities for such personnel as
may be necessary;
7.6.4 equipment, tools and other resources necessary for such personnel to
complete the works;
7.6.5 telephone, telegram, telex, modem, internet and facsimile services;
7.6.6 security, warehousing, storage and office facilities; and
25
7.6.7 customs and/or excise duties on tools, equipment and personal effects
of PARTNER staff.
Article 8. Intellectual and Industrial Property Rights
8.1 PARTNER warrants:
8.1.1 that it has or will obtain prior to installation all Intellectual
Property Rights necessary to enable PARTNER to meet its obligations
under this Agreement; and
8.1.2 that the Contract Value includes all amounts paid or payable for the
rights to use all Intellectual Property Rights embodied in the relevant
System, and all equipment, components, software and Documentation
forming a part of any Deliverables.
8.2 PARTNER shall grant or shall cause to be granted to TELKOM a
royalty-free, world-wide, irrevocable, non-transferable (except as set
forth in this Article), non-exclusive and perpetual license or sub-
license, as the case may be, to use the proprietary intellectual
property of PARTNER or its constituent members or any third party
(including the employees or agents of PARTNER and any sub-contractors)
to enable TELKOM to use such proprietary intellectual property in
connection with the repair, maintenance, operation and use of the
relevant System, Sub-systems, equipment, software, components and
related Documentation to the extent contemplated by this Agreement.
8.3 PARTNER further warrants that the supply or undertaking of any item of
the equipment, software, components, services and related
Documentation, will not infringe (or cause TELKOM to infringe) any
third party Intellectual Property Rights. PARTNER shall indemnify and
hold harmless TELKOM at all times from all direct damages, costs and
expenses arising from any claim or demand based on an allegation of
such infringement. PARTNER shall, at the request of TELKOM, defend at
26
PARTNER's own cost any or all such claims or demands, provided TELKOM:
(a) gives PARTNER prompt written notice of such claim;
(b) permits PARTNER to defend or settle the claim;
(c) does not admit liability in respect of the whole or any part
of the claim or agrees to settle or dispose of the claim; and
(d) provides all reasonable assistance to PARTNER in defending or
settling the claim.
This indemnity shall not apply where the liability arises:
(a) solely as a result of modifications to the Deliverables or
mandatory instructions made by TELKOM without the approval of
PARTNER;
(b) from the combination of the Deliverables with any equipment
not supplied by PARTNER, and if without TELKOM having made
that combination the claim of infringement would not have been
valid; the indemnification shall, however, be applicable if
PARTNER has provided the system integration services which
caused the infringement;
(c) use of the Deliverables by TELKOM other than as contemplated
in this Agreement;
(d) TELKOM'S continued use of the Deliverables after notification
by PARTNER of any modification or changes in the Deliverables
required to avoid infringement claims.
27
8.4 TELKOM agrees that it shall use the applicable software procured
pursuant to this Agreement only for its business purposes, and shall
not market or otherwise commercialize it. The software license so
granted shall authorize TELKOM to undertake all activities related to
and/or as reasonably required for the intended use of the relevant
equipment. The software license shall become effective at the latest
upon TELKOM's issuance of the Integrated System Acceptance Test
Certificate related to the applicable software and shall be limited to
the right to use the software to operate the related equipment. TELKOM
shall not assign, transfer or sub-license such software without the
prior written consent of PARTNER, which consent shall not unreasonably
be withheld or delayed.
8.5 TELKOM shall be entitled to make copies of the applicable software for
back-up purposes only. TELKOM shall be entitled to make copies of
software Documentation for internal use and for archival purposes. Use
by TELKOM's affiliates in Project-related activities, shall be with
PARTNER'S approval. TELKOM may not de-compile the software, except as
permitted by law. Prior thereto, TELKOM shall provide PARTNER with
reasonable advance written notice and an opportunity to provide the
required interfacing information in lieu of TELKOM's exercising its
rights to de-compile the software.
8.6 If, owing to the relevant equipment or its use, a right of a third
party is infringed or an unlawful act is committed against a third
party, PARTNER shall, at its own expense and in consultation with
TELKOM:
28
8.6.1 replace the equipment or part of the equipment with equivalent
equipment or parts of the equipment which do not infringe a right of a
third party or whose use does not in any other way constitute an
unlawful act against a third party; or
8.6.2 acquire a license in respect of the said right; or
8.6.3 modify the equipment in such a way that the infringement or unlawful
act is terminated, provided that modification and/or replacement shall
not cause the functionality and/or quality of the equipment to be
materially reduced.
8.7 PARTNER and/or its sub-contractors shall provide TELKOM with the
interface specification of the applicable software and with all
Documentation and information in order to enable TELKOM to make
external enhancements and/or modifications to the relevant equipment or
add additional functionality to the equipment and/or to achieve
interoperability and compatibility. PARTNER shall be relieved from its
indemnification obligations to the extent the claim is caused by TELKOM
enhancements and/or modifications.
8.8 If the central processing unit on which the applicable software is
installed becomes temporarily unavailable, such software may be
temporarily transferred to an alternative central processing unit. If
TELKOM desires to use the software in a service bureau mode (i.e. to
provide computing services to another supplier of similar services),
TELKOM shall request a meeting with PARTNER in which the Parties shall
discuss the required terms and conditions under which PARTNER would
enter into a written agreement permitting such use.
8.9 All new Intellectual Property Rights jointly created or developed by
the Parties during the term of this Agreement ("Joint New Rights") will
belong to the Parties
29
jointly. Each Party agrees to sign and execute all such forms and
documents as may be necessary or desirable to effect ownership of the
Joint New Rights or to procure, effect or maintain registration of any
Joint New Right by the Parties jointly and each Party shall procure
that all its employees renounce all rights or title to any invention
including any demand for compensation. The Parties shall agree on how
any royalties are to be shared from the licensing of such Joint New
Rights to third parties prior to commercialisation.
8.10 Each Party will be entitled to use and exploit Customized Software (as
defined in Article 8.12), without reference to the other Party and
without obligation to account to the other Party for any profit of that
exploitation, provided that neither Party will assign, charge,
otherwise transfer any of its rights in the Customized Software whether
in whole or in part without the prior written consent of the other
Party, whose consent will not be unreasonably withheld or delayed. Each
Party hereby agrees that it shall give the other Party notification in
writing prior to commencing any action, suit or claim, whether civil or
criminal, against any third party to enforce their rights under the
Customized Software. If necessary, the other Party agrees to be joined
as a co-plaintiff or co-complainant, and the initiating Party shall
bear all the costs of litigation and shall receive all the benefits of
any judgement or damages awarded, unless the other Party agrees to
share the costs of the litigation, in which case each Party shall
receive a share of all the benefits of any judgement or damages awarded
in proportion to that Party's contribution to the costs of instituting
the litigation.
30
8.11 If either Party is of the view that the Joint New Rights or Customized
Software are patentable or otherwise protectable by registration, it
will promptly communicate this to the other Party and the Parties will
liase to decide whether to seek patent or other registration or
protection (the "Protective Application"). The Parties shall agree
regarding which countries to seek and maintain the Protective
Application, related matters as to the scope and maintenance of claims
and other issues concerned with the prosecutions of the Protective
Application and whether to pay renewal fees. If the Parties cannot
agree, the decision will be in favour of seeking and maintaining the
Protective Application, except that either Party may choose at any time
to assign its rights to the Protective Application to the other Party
if it wishes and if the other Party accepts. The costs and expenses of
seeking and maintaining the Protective Application will be borne
equally between the Parties unless one Party has decided to assign all
its rights to the Protective Application to the other Party in which
case the other Party will bear the full costs and expenses.
8.12 All Intellectual Property Rights in Customized Software shall be owned
jointly by TELKOM and PARTNER. The Parties agree to execute or have
executed any Documentation reasonably required or desirable to effect
such joint ownership of rights, and/or their registration. "Customized
Software" under this Article 8 means any software and its associated
source code, related specifications, engineering drawings, notes,
processes, designs, software documentation, and all other information
and documents specially written for TELKOM as part of the performance
of this Agreement. Customized Software includes newly created modules
to be interfaced with software which is proprietary to PARTNER at the
date of this Agreement, unless specifically provided otherwise. PARTNER
shall provide TELKOM with a full copy of the
31
software and the related materials referred to above (including its
source code) when the Customized Software is installed or updated.
Article 9. Force Majeure
9.1 Neither Party shall be liable for delays in delivery or performance, or
for failure to manufacture, deliver or perform when caused by any of
the following which are beyond the reasonable control of the delayed
Party, including but not limited to acts of God, acts of the public
enemies, acts of civil or military authority, acts of war, acts of
terrorism, riots, strikes, lockouts, other labor disturbances,
hurricanes, earthquakes, fires, floods or other natural disasters,
epidemics and embargoes or a change to any government of Indonesia law,
regulation, decree or government department policy having the force of
law which has a material adverse impact on the ability of a Party to
perform this Agreement.
9.2 Any occurrence belonging to a Force Majeure category shall be notified
immediately to the other Party not later than fourteen (14) days after
such occurrence. If an event of Force Majeure causes TELKOM to fail to
pay any amounts due for a period of more than ninety (90) days, any of
the Parties may terminate this Agreement. Any other event of Force
Majeure continuing for a period in excess of 6 months shall entitle any
of the Parties to terminate this Agreement.
9.3 In the event that due to Force Majeure the implementation of this
Agreement or relevant agreement, acceptance test, integration, drive
test or other matters
32
provided for in this Agreement are suspended, the implementation period
shall be extended by the numbers of days equal to the duration of such
suspended implementation.
9.4 Neither Party shall be liable for any losses suffered by the other
Party arising as a result of Force Majeure.
Article 10. Transfer of Risk and Title
10.1 The transfer of operational risk from PARTNER to TELKOM shall take
place when the respective Deliverables have been installed, and the
relevant Integrated System Acceptance Test Certificate has been issued
by TELKOM.
10.2 Legal title and other rights to the relevant Deliverables shall only
pass to or vest in TELKOM at the time the Integrated System Acceptance
Test Certificate is issued, and PARTNER's approval of the escrow
arrangement contemplated in Appendix 15 (Financing Arrangements).
Article 11. Indemnification
11.1 Without prejudice to any other provisions of this Agreement, PARTNER
shall indemnify and hold TELKOM harmless from all direct damages, cost
and expenses arising from any Claims (as defined below), if Claims
arise:
11.1.1 as a result of a failure by PARTNER to perform its obligations pursuant
to this Agreement, Purchase Orders or other specific agreement related
to these agreements:
11.1.2 in connection with the work carried out pursuant to its obligations
under this Agreement, unless the occurrence of the damage is not
attributable to PARTNER;
11.1.3 in connection with the faulty design of the equipment or any other
material or supplies which are supplied by PARTNER;
33
11.1.4 in connection with an infringement of any Intellectual Property Rights
or industrial property right belonging to a third party in relation to
Article 8.3;
11.1.5 in connection with any Claims including, without limitation, any fines
or other penalties suffered by TELKOM as a result of the violation by
PARTNER or any of its employees or agents of any laws or regulations in
Indonesia related to Article 6;
11.1.6 in connection with any interruption to the Network under Article 57.4;
11.1.7 for personal injury to and death of any persons and damage to any
property arising out of the performance of this Agreement due to acts
or omissions whether negligent or otherwise of PARTNER, its employees,
agents or sub-contractors;
11.1.8 loss or damage caused by the gross negligence or wilful act, fault or
omission of PARTNER, its employees, agents or sub-contractors,
including without any limitation any damage or interruption to TELKOM's
existing Network during the migration to the new network to be provided
by PARTNER; or
11.1.9 in connection with termination by TELKOM for non-delivery of contracted
equipment, components or software.
Provided that TELKOM:
(a) gives PARTNER prompt written notice of such Claim;
(b) permits PARTNER to defend or settle the Claim;
34
(c) does not at any time admit liability in respect of the whole
or any part of the Claim or agrees to settle or dispose of the
Claim; and
(d) provides all reasonable assistance to PARTNER in defending or
settling the Claim.
11.2 "CLAIMS" shall mean any demands, claims, actions, liabilities, losses,
damages awarded by a court or arbitration tribunal against TELKOM,
costs (including legal and other professional costs), penalties and
expense incurred by TELKOM as a result of a breach by PARTNER or any
sub-contractor of any of its obligations, representations, undertakings
or warranties under this Agreement.
Article 12. Equipment Maintenance and Support
12.1 PARTNER undertakes that the Scope of Work will be executed in
accordance with terms and any conditions of this Agreement and any
Purchase Orders.
12.2 PARTNER warrants that all equipment and Network Systems and Sub-systems
to be delivered to TELKOM are 100% (one hundred per cent) new, having
no hidden defect and shall not have originated through unlawful
procurement or manufacturing practices. PARTNER shall further undertake
that all equipment (both hardware and software) delivered to TELKOM
under this Agreement shall have a product life of at least ten (10)
years from the date of issuance of the respective Integrated System
Acceptance Test Certificate, or from the time the equipment is used
commercially by TELKOM, whichever occurs first, provided that TELKOM
has:
(a) materially complied with the terms of the SOP and SMP (as
referred to in Article 60.1.2); and
35
(b) not made any material modifications or changes to the
equipment (both hardware and software) delivered to TELKOM.
12.3 If, upon the expiry of any applicable SLA period, TELKOM requires
maintenance assistance for the equipment from PARTNER, PARTNER agrees
to carry out such maintenance including replacement of the same or
comparable spare parts within the life time of the equipment as
referred to in Article 12.2, with costs thereof as agreed at least
ninety (90) days prior to the expiration of the applicable SLA.
12.4 PARTNER warrants that all equipment supplied to TELKOM is in accordance
with Appendix 3 (Scope of Work) and Appendix 5 (Technical
Specifications) and the execution of the works is in accordance with
this Agreement and best practice standards as agreed by the Parties.
Article 13. Liquidated Damages for Delay
13.1 PARTNER shall be deemed to have failed to perform an obligation under
this Agreement for reasons for which it can be held responsible, if
after the performance has become due and PARTNER has been given due
notification of non-performance with a reasonable time allowance not
exceeding thirty (30) days to rectify or correct the failure to perform
condition, it has not fulfilled the obligation or has not fulfilled it
in time or in accordance with what has been agreed upon. Without
limitation, among other examples of delays by PARTNER are the
following:
13.1.1 the Deliverables stated in the respective Purchase Order or specific
agreement has not met the acceptance criteria at the agreed date on a
per Location/Site basis;
36
13.1.2 the contracted equipment or software to be delivered is not available
at the time and place committed by PARTNER in accordance with the terms
and schedules of the respective Purchase Order, including without
limitation where the delay results from damage or loss of goods during
shipment;
13.2 PARTNER shall not be responsible to TELKOM for non-performance if the
non-performance is a result of (i) late or non-performance of TELKOM
or (ii) delays in acquiring land, provided PARTNER has been diligent
and used its best endeavours during the land acquisition process, it
being agreed that the cost of the land acquisition process itself for
which PARTNER is responsible shall not be a reason for PARTNER seeking
to excuse its delayed performance. In such event, PARTNER shall be
entitled to an appropriate extension of time for the performance of its
obligations. PARTNER shall take all reasonable steps to minimize the
impact of the delay and shall promptly notify TELKOM in writing, with
supporting details, of the extension of time required. PARTNER's
entitlement to extension of time shall be limited to the time which
would have been due if it had given prompt notice and had taken all
reasonable steps.
13.3 The liquidated damages for each day of delay shall be calculated on the
basis of a percentage of the Contract Value specified in the respective
Purchase Order related to the delayed Location in the amount of 6% per
annum, up to a maximum of 5% of the said Contract Value in the
applicable Purchase Order. For the avoidance of doubt if non-
performance is not remedied within the remedial period permitted under
Article 13.1, or as otherwise agreed by the Parties, then liquidated
damages shall be payable starting from the first day following the
remedial period.
37
13.4 Liquidated damages assessed for delays in performance pursuant to
Article 13 shall be without prejudice to any other non-financial claims
TELKOM may have in respect of delays for which PARTNER is responsible.
These include without limitation, TELKOM's right: (i) to terminate this
Agreement; and (ii) following discussions with PARTNER and acting
reasonably with respect to the selection of a third party, to appoint
the third party to continue this Agreement with respect to such works
as may be able to be completed by third parties on condition that any
excess amounts reasonably incurred for continuing such works as
required shall be borne by PARTNER.
Article 14. Termination of the Agreement
14.1 If PARTNER is in material breach of any of its obligations under this
Agreement, which failure is not capable of being cured, or if it can be
cured, and PARTNER shall have failed to cure such default within thirty
(30) days or an agreed lapse of time after written notice requiring
that such default be made good (given either under this Article 14.1 or
pursuant to Article 13.1 and 13.2), then TELKOM shall have the right,
at its election and without prejudice to other rights and remedies
provided in this Agreement to terminate this Agreement and recover
damages from PARTNER.
14.2 TELKOM shall be entitled to terminate all or part of this Agreement,
and/or all or part of the Purchase Orders and/or any related agreement
upon any of the following events:
14.2.1 PARTNER's breach of the interoperability Commitment Agreement;
38
14.2.2 PARTNER declares or clearly states that the Scope of Work, or any
substantial part thereof, will not or cannot be completed;
14.2.3 PARTNER takes or has taken or instituted against it any action or
proceeding, whether voluntary or compulsory, which has as an object or
may result in the winding up of PARTNER (other than a voluntary winding
up by members for the purpose of reconstruction or amalgamation), or is
placed under official management or enters into a compromise or other
arrangement with its creditors or any class of them or an
administrative receiver or an administrator or receiver is appointed to
carry on its business or to take control or possession of any of its
assets for the benefit of its creditors or any of them;
14.2.4 PARTNER violates any law relating to the prevention of corruption or
bribery in PARTNER's home country or any jurisdiction in which PARTNER
is carrying out any of the works; or
14.2.5 The Parties have been unable to agree mutually acceptable financing
arrangements for the Project pursuant to Article 35.1.
14.3 PARTNER shall not be entitled to terminate or abandon this Agreement
except in the event that:
14.3.1 TELKOM takes or has taken or instituted against it any action or
proceeding, whether voluntary or compulsory, which has as an object or
may result in the winding up of TELKOM (other than a voluntary winding
up by members for the purpose of reconstruction or amalgamation), or is
placed under official management or enters into a compromise or other
arrangement with its creditors or any class of them or an
administrative receiver or an administrator or receiver is appointed to
carry on its business or to take control or possession of any of its
assets for the benefit of its creditors or any of them; or
39
14.3.2 TELKOM fails to pay any amounts due, or becomes unable to pay amounts
to become due, for a period of more than six (6) months and during
discussions with TELKOM during such period the Parties cannot agree on
a satisfactory mechanism for payment and/or security for payments owed,
including establishment of an escrow account or the provision of a bank
guarantee by TELKOM acceptable to PARTNER. For the avoidance of doubt,
if termination occurs under Article 14.3.1 or at the end of the period
contemplated in Article 35.1, then in such circumstances all amounts
owed to PARTNER shall become due and payable.
14.4 Termination of this Agreement shall be without prejudice to any accrued
rights of the Parties up to the date of termination.
14.5 The termination of this Agreement or other specific agreement shall not
affect or prejudice any provisions of those agreements which are
expressly or by implication provided to continue in effect after such
termination.
14.6 If this Agreement is terminated as provided in this Article 14, TELKOM,
in addition to any other rights provided in this Article, may require
PARTNER to transfer title and to deliver to TELKOM in the manner and to
the extent directed by them upon full payment, any completed equipment,
material or supplies, and such partially completed cable and materials,
parts, tools, dies, jigs, fixtures, plans, drawings, information, and
contract rights as PARTNER has had specifically produced or
specifically acquired for the performance of such part of this
Agreement as may have been terminated and which if this Agreement had
been completed, would have been required to have been furnished to
TELKOM. In addition, PARTNER shall, upon the direction of TELKOM,
protect and preserve property in its possession in which TELKOM have an
interest. PARTNER shall be paid the prices specified in Appendix 4
(Price Schedule) for completed equipment, material and supplies
delivered and services performed, and the amounts agreed
40
upon by TELKOM and PARTNER for the manufacturing materials delivered to
TELKOM by PARTNER, and for the protection and preservation of property
in which TELKOM have an interest.
14.7 If this Agreement is terminated in accordance with Article 14.2, TELKOM
may elect to take over and to complete the work. In such event,
PARTNER, shall, without prejudice to any other rights or remedies of
TELKOM hereunder, be liable to TELKOM for all costs so incurred by them
in excess of the Contract Value, taking into account any sums due under
this Agreement to PARTNER for work commenced, partly executed or
completed and accepted by TELKOM or materials, plant, machinery, tools
and implements and other things purchased, used or to be used in
connection with the work.
14.8 In the event of termination, the Parties agree to waive the provisions
of Article 1266 of the Indonesian Civil Code to the extent necessary to
effect termination of this Agreement in accordance with Article 14
without the need for a court decision.
Article 15. Governing Law
This Agreement shall be interpreted and governed in accordance with the laws of
the Republic of Indonesia.
Article 16. Settlement of Disputes
16.1 If any disputes arising between TELKOM and PARTNER in connection with
or arising out of this Agreement or the breach, termination of validity
thereof (a "Dispute"), the Parties shall attempt for a period of thirty
(30) days after receipt by one Party of a notice from the other Party
of the existence of the dispute, to settle such Dispute in the first
instance by mutual discussions between senior executives of the
Parties.
41
16.2 Any Dispute which cannot be resolved by amicable settlement between the
Parties arising out of or in connection with this Agreement, including
any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration in Singapore in
accordance with the Arbitration Rules of the Singapore International
Arbitration Centre ("SIAC") for the time being in force which rules are
deemed to be incorporated by reference to this clause.
16.3 The arbitration shall be conducted before an arbitral tribunal composed
of three (3) arbitrators. The language of the arbitration shall be
English.
16.4 The three (3) person arbitration panel shall be selected as follows:
(a) each arbitrator shall be fluent in English and shall be
experienced with legal matters concerning the
telecommunications industry.
(b) each of (A) the Party initiating the arbitration and (B) the
respondent Party or Parties to the Dispute shall nominate one
(1) arbitrator within thirty (30) days of the written notice
of the Dispute described above. The relevant Parties shall
within (30) days of the appointment of the two (2) arbitrators
seek to appoint a third arbitrator. If any relevant Party does
not nominate an arbitrator or if the relevant Parties cannot
agree on the choice of the third arbitrator, in each case
within the relevant period, then each unappointed arbitrator
shall be selected by the Chairman of the SIAC (provided that
the requirements in Article 16.4(a) are satisfied).
42
16.5 The award rendered shall be in writing and shall set out the facts of
the Dispute and the reasons for the arbitration panel's decision. The
award shall apportion the costs of the arbitration as the arbitration
panel deems fair.
16.6 The Parties agree that the arbitration award shall be final and binding
on the Parties. The Parties agree that no Party shall have any right to
commence or maintain any suit or legal proceedings until the Dispute
has been determined in accordance with the arbitration procedure
provided herein and then only for enforcement of the award rendered in
the arbitration. Judgement upon the arbitration award may be rendered
in any court of competent jurisdiction or application may be made to
such court for a judicial acceptance of the award and an order of
enforcement, as the case may be.
16.7 Each of the Parties hereby expressly waives any Indonesian laws and
regulations, decrees or policies having the force of law that would
otherwise give a right to appeal against the decision of the
arbitration panel, and the Parties agree that no Party shall appeal to
any court against the award or decision contained therein. The Parties
agree that any dispute in connection with or arising out of this
Agreement or the breach, termination of validity thereof under is of a
commercial nature.
16.8 Each of the Parties waives the applicability of Article 48(1) of the
Indonesian Law on Arbitration and Alternative Dispute Resolution (the
"Arbitration Law") and agrees that no arbitration need be completed
within a specific time. For purposes of Article 5 paragraph 1 of the
Arbitration Law, the Parties agree that the relationship among the
Parties is commercial in nature and any Dispute related to this
Agreement shall be deemed commercial.
16.9 No Party or person involved in any way in the creation, coordination or
operation of the arbitration of any Dispute may
43
disclose the existence, content or results of the Dispute or any
arbitration conducted under this Agreement in relation to that Dispute,
in each case subject to those disclosures permitted by Article 19.
16.10 This Agreement and the rights and obligations of the Parties shall
remain in full force and effect pending the award in such arbitration
proceeding, which award, if appropriate shall determine whether and
when only termination shall become effective. The provisions contained
in this Article 16 shall survive the termination and/or expiration of
this Agreement.
Article 17. Language
17.1 All data, documents, Purchase Orders, invoices, descriptions, diagram,
books, catalogues, instructions, marking for easy identification of
major items of the material and most correspondence shall be in the
English language and in the metric system of weights and measures.
17.2 PARTNER's personnel shall be proficient in English both written and
spoken, for the purpose of providing instruction, offering advisory
services, training and any other submission as required.
17.3 This Agreement is concluded in both English and Bahasa Indonesia. In
the event of any inconsistency or contradiction between the Bahasa
Indonesia and English texts, the Bahasa Indonesia text shall govern and
prevail.
Article 18. Corporate Representations and Warranties
18.1 Each Party (including each constituent member of PARTNER) represents
and warrants that (i) it has obtained all necessary approvals, consents
and authorizations of third parties and governmental authorities to
enter into this Agreement and to perform and carry out its obligations
under it; (ii) the persons executing the Agreement on its behalf have
express authority to do so, and, in doing so, to bind the party to it;
(iii) the execution,
44
delivery, and performance of this Agreement does not violate any
provision of any bylaw, charter, regulation, or any other corporate
governing authority of the Party; (iv) the execution, delivery and
performance of the Agreement has been duly authorized by all necessary
corporate action; (v) the execution, delivery and performance by it of
this Agreement constitute private and commercial acts rather than
public or governmental acts; and (vi) the obligations of the Parties
under the Agreement are valid and binding obligations of such Party,
enforceable in accordance with its terms.
Article 19. Confidential Information
19.1 TELKOM and PARTNER shall enter into a Non-Disclosure Agreement in the
form set out in Appendix 24 (Non-Disclosure Agreement) which details
the terms and conditions related to permitted uses and disclosures of
confidential information in the development, operation use and
maintenance of the relevant Systems in the T-21 Program.
Article 20. Notice
20.1 All notifications required or permitted under this Agreement shall be
sufficiently given if made in writing and delivered personally by hand
or by courier or sent by prepaid registered post or by facsimile to the
addresses of the Parties as from time to time notified.
20.2 All notification required in connection with the implementation of this
Agreement shall be addressed as follows:
To TELKOM:
Perusahaan Perseroan (Persero) PT
Telekomunikasi Indonesia Tbk.
Xx. Xxxxxx Xx. 0, Xxxxxxx 00000
Xxxxxxxxx: President Director
Fax: (022)440-313
Email: xxxxxxxxx@xxxxxx.xx.xx
45
To PARTNER:
Samsung Electronics Co. Ltd
18th IT Center
Maeton-3 dong, Xxxxxx-xx, Xxxxx-xx,
Xxxxxxxx-xx, Xxxxx 000-000
Attention: Ig Xxx Xxxx
Fax : (00-00)000-0000
Email : xx.xxxx@xxxxxxx.xx.xx
with copy to:
PT Mitraguna Intikom
Jl. Kemang Utara XX/0 Xxxx X 0-0
Xxxxxxx 00000, Xxxxxxxxx
Attention: President Director
Fax : (000)000 0000
Email : xxxxxxx@xxxxxx.xx.xx
A Party may change its address by giving prior written notice to the
other Party. Notices and other communications may be in the Indonesian
or English language. All notices shall be effective (i) in the case of
delivery by personal delivery or courier, on the date of receipt as
evidenced by a delivery receipt from the recipient or confirmation of
delivery received by the sender from the courier, and (ii) in the case
of transmission by facsimile transmission or electronic mail or other
electronic transmission, on the date of receipt as promptly
acknowledged by the recipient, failing which acknowledgement then on
the date of such transmission as evidenced by the convention applicable
to such transmission.
20.3 PARTNER shall appoint a point of contact or designated representative
authorized to act on behalf of PARTNER, and whose instructions and
requests shall be binding for PARTNER as to all matters pertaining to
implementation of the Project brought to his attention by TELKOM.
TELKOM shall also appoint a point of contact or designated
representative authorized to act on behalf of TELKOM as to all matters
pertaining to implementation of the Project. The initial point of
contact for each Party is listed below:
PARTNER's Point of Contact:
Project Manager
Plaza Mashill Lt. 23
Jl. Jend. Xxxxxxxx Xxx. 00
Xxxxxxx 00000, Xxxxxxxxx
46
Tel. :(000) 000-0000
Fax :(000) 000-0000
E-mail : xxx.xxx@Xxxxxxx.xxx
Mobile : 0000-0000000
TELKOM's Point of Contact:
Head of Fixed Wireless Division (as
Project Manager)
Xxxxx Xxxxx Xxxxx, Xxx. 00
Xxxxxxx
Xxxxxxxxx
Tel. : (000) 000-0000
Fax : (000) 000-0000
E-mail : xxxx_xx@xxxxxx.xx.xx
Mobile : 0000-000000
Article 21. General Provisions
21.1 If any provision of this Agreement or part thereof is rendered void,
illegal or unenforceable by any legislation to which it is subject, it
shall be rendered void, illegal or unenforceable only to that extent
and it shall in no way affect or prejudice the enforceability of the
remainder of such provision or the other provisions of this Agreement.
The invalidity, illegality or unenforceability of any provision in this
Agreement under the laws of any one jurisdiction shall not in itself
affect the validity, legality and enforceability of such provision
under the laws of any other jurisdiction.
21.2 No remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy that is otherwise
available at law or otherwise, and each and every other remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or otherwise. The
election of any one or more of such remedies by either Party shall not
constitute a waiver by such Party of the right to pursue any other
available remedies.
47
21.3 No failure on the part of either Party to exercise and no delay on the
part of either Party in exercising any right hereunder will operate as
a release or waiver thereof, nor will any single or partial exercise of
any right under this Agreement preclude any other or further exercise
of it. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any right or remedy provided by law.
21.4 This Agreement embodies all the terms and conditions agreed upon
between the Parties as to the subject matter of this Agreement, and
supersedes all prior representations, arrangements, understandings and
agreements between the Parties whether written or oral (including
without limitation, the RfP, except as provided otherwise under this
Agreement).
21.5 This Agreement may be executed in any number of counterparts, each of
which shall constitute an original and take effect without reference to
any other counterpart, and together the counterparts shall be deemed as
one and the same agreement.
21.6 Notwithstanding the reference to the terms "partner" and/or
"partnership" in this Agreement, the relationship between the Parties
shall not constitute a legal partnership. Neither Party has the power
or the right to bind, commit or pledge the credit of the other Party.
21.7 This Agreement shall enure to the benefit of and be binding upon the
Parties and their respective successors and permitted assigns.
CHAPTER 2. COMMERCIAL TERMS AND CONDITIONS
Article 22. Contract Value
22.1 Based on the unit prices referred to Article 23.3, the initial Contract
Value
48
(excluding VAT) for execution of the Project under this Agreement is
US$ 123,965,591 (primarily for goods and services purchased outside
Indonesia) and IDR 286,537,360,586 (primarily for goods and services
procured within Indonesia). This Contract Value may be adjusted from
time to time in accordance with mechanism provided in Article 27.
Article 23. Prices and Fees
23.1 The prices and fees as listed under Appendix 4 (Price Schedule) are the
agreed prices and applicable to the relevant Purchase Orders. Such
prices and fees shall be deemed to include all costs, expenses and
customs and import duties which are deemed necessary to carry out this
Agreement but excluding VAT, income tax (Article 22) on imports, and
sales tax on luxury goods.
23.2 The prices and fees payable by TELKOM under this Agreement shall be
denominated in United States of America Dollars (USD) or in Indonesian
Rupiah (IDR) as applicable. PARTNER shall quote all goods and services
procured within Indonesia in Indonesian Rupiah (IDR) and goods and
services purchased outside Indonesia in United States dollars, as
applicable. All payments made under or pursuant to this Agreement by
TELKOM shall be made in the currency specified. In the event that any
such payments are unable to be made in the currency specified for
whatsoever reason, then at the option of PARTNER such payments may be
made by TELKOM by payment of an equivalent amount (at the then
prevailing exchange rates) of such other currency as is permissible. If
so requested by PARTNER, TELKOM shall pay the relevant amount in the
name of PARTNER or a third party designated by PARTNER at a bank within
Indonesia.
23.3 Unit prices quoted in Appendix 4 (Price Schedule) are firm fixed prices
and shall not be varied except as permitted under this Agreement. Unit
prices for equipment
49
are deemed to include payments by PARTNER for all costs of freight,
insurance, customs and import duties, clearance at the port of entry,
inland transportation, warehousing and delivery to the Location/Site
where the equipment is to be installed. Unit prices for equipment
related services shall include survey, planning, design, permits,
rights of way, installation, integration, project management, insurance
up to transfer of title, testing and commissioning costs, services
related to land acquisition, frequency licence application services and
all related materials and expenses to complete the Project on a turnkey
basis as contemplated in Article 3. Import or custom duties are
included in the unit prices set out in Appendix 4 (Price Schedule) and
shall remain fixed. Variations in unit price shall only be subject to
change if specifically agreed upon by the Parties pursuant to a Change
Request.
Article 24. Taxes and Duties
24.1 The Contract Value excludes VAT, sales tax on luxury goods, and income
tax (Article 22) on imports, but includes customs and import duties
imposed by the government of Indonesia on the Deliverables in
connection with the Project. Each Party shall be responsible for all
taxes which it is required to pay, withhold or collect as the case may
be, in accordance with prevailing laws and regulations, it being
acknowledged by PARTNER that in relation to VAT administration TELKOM
is a designated VAT collector under applicable regulations.
Article 25. Insurance and Safety
25.1 PARTNER shall at its own expense take out an all risk insurance policy
("All Risk Policy") to cover any works to be carried out pursuant to
any Purchase Order. The insurance shall cover all risks against losses,
damages (including accidents caused by the work performed by PARTNER
its employees, agents or sub-contractors) at a minimum until the
transfer of title to the relevant
50
Deliverables pursuant to Article 10.2. The All Risk Policy shall also
cover any plant, machinery, tools, goods, vehicles or property
belonging to PARTNER, its employees, agents or sub-contractors which
have been placed at any relevant Location/Site where any works are
being executed, all risks during transportation, warehousing, storage,
delivery, installation and testing, whether by fire, theft,
earthquake/flood, natural disaster, consequence of fault in
construction, or otherwise, and legal liability to third parties during
construction, installation and operation periods including loss of
revenue insurance and damage to surrounding property. PARTNER shall
provide evidence of this All Risk Policy to TELKOM upon request.
25.2 PARTNER shall at its own expense replace any loss, damaged and/or
destroyed equipment, components and software while such are in the
process of being delivered and installed.
25.3 Notwithstanding the procurement of an All Risk Policy, PARTNER's
liability in respect of loss or damage attributable to the acts,
omission or negligence of PARTNER shall not be limited to the amount
of the insurance coverage under the All Risk Policy.
25.4 PARTNER shall take full responsibility for the adequacy, stability and
safety of all works carried out at the relevant Locations/Sites in
accordance with the provisions of any law, order, regulation, decree,
directive or standards now or hereinafter in force in Indonesia.
PARTNER shall ensure that all equipment, tools, facilities and other
items used by PARTNER or its sub-contractor in the execution of the
works shall be safe, sound, in good working condition which shall, at a
minimum, conform to acceptable standards in the
51
industry. PARTNER shall at its own expense provide the necessary safety
equipment, protective clothing, footwear and such other appliances as
may be necessary or required by law or regulation for proper and safe
execution of the works. PARTNER shall ensure that all personnel
provided are fully trained and qualified and properly certified by the
relevant authorities or bodies if such certification is required under
the applicable laws, rules or regulations or directive of any
governmental body.
CHAPTER 3. FINANCIAL TERMS AND PAYG
Article 26. Joint Planning Sessions, Design Review Meetings and Monthly
Meetings
26.1 Joint Planning Session or JPS
26.1.1 The Parties agree to conduct systematic, periodic and comprehensive
joint planning exercises as described below.
26.1.2 TELKOM and PARTNER shall conduct annual Joint Planning Sessions ("JPS")
in October or November at the end of each Fiscal Year to plan for the
following Fiscal Year's Package Level Requirements. The first of these
JPSs shall be conducted at a time to be mutually determined after the
Parties have executed this Agreement and shall cover the period
immediately following the execution of this Agreement up to the end of
Fiscal Year 2003. The JPS may also be convened at such other times as
the Parties may agree. TELKOM and PARTNER shall jointly conduct and/or
agree on at least the following activities as applicable to the
following Fiscal Year:
(a) demand forecasting at a national level considering various
macro economic factors;
(b) economic analysis to assess the business feasibility of
deploying the intended Network; and
52
(c) development of the details of the Deployment Plan and
Implementation Schedule on a quarterly basis with
prioritisation of Locations for Network deployment.
26.1.3 At each subsequent JPS, TELKOM and PARTNER shall conduct jointly and/or
agree on at least the following activities as applicable to the
following Fiscal Year:
(a) demand forecasting at a national level considering various
macro economic factors;
(b) economic analysis to assess the business feasibility of
deploying the intended Network; and
(c) development of details of the Deployment Plan and
Implementation Schedule on a quarterly basis with
prioritisation of Locations for Network deployment;
(d) review of future technology deployment strategies, considering
availability and suitability of the latest technologies,
equipment or software; and
(e) resolve issues referred to it by a DRM or otherwise and agree
on corrective actions.
26.1.4 PARTNER shall take responsibility for the organisational and
administrative activities required to convene the JPSs. PARTNER shall
be responsible for all reasonable costs of convening the JPS and shall
fund at its own expense the cost of external consultants in performing
any of the work or analyses contemplated under Article 26.1. TELKOM
shall only be responsible for the costs of providing accommodations and
transport for TELKOM staff attending a JPS.
26.1.5 The Parties shall produce minutes of the JPS meetings in which any
substantive agreements shall be recorded as
53
agreements of the Parties, as evidenced by signature of the minutes (or
the applicable sections thereof) by the authorized representative of
each Party.
26.1.6 At each JPS, TELKOM shall be entitled to make the final decisions on
such matters as revision of the Deployment Plan and adjustments to the
calculation of Installed Lines Procurements, after taking into account
PARTNER's inputs concerning, among others, demand forecasts, market
outlook and take-up of the capacity deployed.
26.2 Design Review Meeting or DRM
26.2.1 TELKOM and PARTNER shall conduct systematic, periodic and comprehensive
Design Review Meetings ("DRM") on a quarterly basis at a DIVRE level
throughout the term of this Agreement.
26.2.2 The first DRM shall be conducted within ten (10) Business Days after
the first JPS. Thereafter, DRMs are intended to be held at the end of
each Quarter with an agenda which looks forward to the contemplated
activities of the following Quarter.
26.2.3 Before the first DRM. TELKOM and PARTNER jointly shall conduct at least
the following activities:
(a) survey the planned deployment Location/Site(s) to ensure the
readiness of the Location/Site(s);
(b) calculate Installed Line Procurements (equaling to Subscriber
Targets) required by Location and Site (BTS);
(c) based on the Subscriber Targets, develop a detailed network
design, agree and approve the detailed BoQ and the value of
the detailed BoQ by Location and Site (BTS);
(d) develop a detailed resource plan;
54
(e) develop a detailed training plan; and
(f) update the Deployment Plan for the next Quarter if necessary.
26.2.4 At the first DRM, TELKOM and PARTNER jointly shall conduct and/or agree
on at least the following activities:
(a) check and update the calculation of Installed Line
Procurements (equating to Subscriber Targets) by Location and
Site (BTS);
(b) based on the Subscriber Target, agree and approve the detailed
Network design;
(c) based on the Subscriber Target, agree and approve the detailed
BoQ and the total value of the detailed BoQ by Location and
Site (BTS);
(d) agree and approve the detailed resource plan;
(e) agree and approve the detailed training plan;
(f) agree and approve adjustments, if any, to the Project
Management Plan and the implementation Schedule; and
(g) agree and approve the updated Deployment Plan for the
following Quarter if necessary.
26.2.5 Following the first DRM and after each subsequent DRM, TELKOM shall
promptly issue Purchase Order(s) signed by the TELKOM Project Manager
or other person authorized by TELKOM based on the results of the
related DRM.
26.2.6 With respect to the quarterly DRM which coincides with a JPS each
fiscal year, the DRM shall be convened immediately after the completion
of such JPS, with an agenda which is designed not to repeat or
duplicate JPS activities in such DRM, unless necessary.
55
26.2.7 Before each subsequent DRM, TELKOM and PARTNER jointly shall conduct
and/or agree on at least the following activities:
(a) survey the planned deployment Location/Site(s) to ensure the
readiness of the Location/Site(s), to assess the demand;
(b) update the Deployment Plan for that Quarter by calculating the
Installed Line Procurement (equating to Subscriber Targets)
required by Location and Site (BTS);
(c) based on the Subscriber Targets, develop a detailed Network
design, a detailed BoQ and the total value of the detailed BOQ
by Location and Site (BTS);
(d) develop a detailed resource plan;
(e) develop a detailed training plan; and
(f) assess market demand and update deployment plan for the
following Quarter if necessary.
26.2.8 At each subsequent DRM, TELKOM and PARTNER jointly shall conduct and/or
agree on at least the following activities for the following Quarter.
(a) check and update the calculation of Installed Line
Procurements (equating to Subscriber Targets) by Location and
Site (BTS);
(b) based on the Subscriber Target, agree and approve the detailed
Network design;
(c) based on the Subscriber Target, agree and approve the detailed
BoQ and the total value of the detailed BoQ by Location and
Site (BTS);
56
(d) agree and approve the detailed resource plan;
(e) agree and approve the detailed training plan;
(f) agree and approve adjustments, if any, to the Project
Management Plan and Implementation Schedule;
(g) evaluate performance of the Project in the previous Quarter
and revise implementation procedures to take account of
failures or other unsatisfactory performance;
(h) agree and approve the updated Deployment Plan for the
following Quarter if necessary; and
(i) resolve issues referred to it by a monthly meeting or
otherwise and agree on corrective actions.
26.2.9 PARTNER shall take responsibility for the organisational and
administrative activities required to organize all DRMs. PARTNER shall
be responsible for all reasonable costs of convening the DRM and shall
fund at its own expense the analysis contemplated under Article 26.2.
TELKOM shall only be responsible for the costs of providing
accommodations and transport for TELKOM staff attending a DRM.
26.2.10 The Parties shall produce minutes of each DRM in which any substantive
agreements shall be recorded as agreements of the Parties, as evidenced
by signature of the minutes (or the applicable section thereof) by the
authorized representative of each Party.
26.2.11 The following additional agreements apply to the DRMs:
(a) TELKOM and PARTNER jointly will design and calculate the exact
BoQ to support the intended number of Subscriber Targets based
on the design rules in Appendix 14 (Technical
57
and Engineering Norms);
(b) the design rules in Appendix 14 (Technical and Engineering Norms) are
based on technical and engineering norms current at the date of this
Agreement and may be adjusted by written agreement of the Parties
during the planning process based on the evolution of the market to
avoid any over or under-estimation of the equipment required;
(c) in case there are any major issues that need urgent attention or cause
any significant deviation from the original Deployment Plan, PARTNER
shall bring it to the attention of TELKOM and, if mutually agreed,
promptly convene a special DRM to address such issues;
(d) if necessary, any activities mandated by a JPS meeting may be executed
in conjunction with a DRM meeting;
(e) in the event that terms of a particular Purchase Order are inconsistent
with agreements reached in a DRM, the Parties shall review and if
necessary amend any mistakes or discrepancies in the Purchase Order or
BoQ;
(f) At each DRM, decisions on such matters as revision of the Deployment
Plan and calculation of Installed Line Procurements, shall be mutually
agreed by the Parties after taking into account all inputs of both
Parties concerning, among others, demand forecasts, market outlook,
equipment production capacity, and take up of the capacity deployed;
and
(g) TELKOM and PARTNER agree
58
that the Deployment Plan for the following Quarter for a
particular Location shall be calculated based on Installed
Line Procurements that realistically can be provisioned within
a period of a minimum of three (3) years if new common
equipment is deployed, and a minimum of one (1) year for each
module such as racks, sub-racks and cards.
If the Parties cannot reach agreement at a DRM on matters such as the
terms of a particular Purchase Order or other critical issue, the
matter shall be referred to senior management of each Party for
resolution.
26.3 Monthly Meetings
26.3.1 PARTNER through its authorized representatives shall conduct monthly
meetings with the relevant TELKOM staff in the Location to be developed
to ensure smooth execution of Project operations and to raise and
discuss issues in a timely manner.
26.3.2 The first of these meetings will be conducted at a time to be mutually
determined after the first DRM has been conducted. Thereafter, these
meetings shall be held on a monthly basis throughout the term of this
Agreement.
26.3.3 At each monthly meeting, PARTNER shall be responsible for at least the
following activities: preparation of progress reports from site
managers, site supervisors, and other staff to the TELKOM Project
Manager or his authorized representative, updates on any relevant
developments, and discussion of any problems or unresolved issues
arising in the previous month.
26.3.4 Monthly meetings may be held anywhere at such times and places as
mutually convenient to the Parties.
26.4 Representation at JPS, DRM and Monthly Meetings
26.4.1 TELKOM and PARTNER shall notify
59
each other from time to time regarding their appointments (and any
changes to such appointments) of authorized representatives who have
authority to execute or make agreements in any JPS and/or DRM and/or
monthly meeting on their behalf.
26.4.2 Agreements of the Parties reached at a JPS and/or DRM and/or monthly
meeting shall be signed by authorized representatives of each of the
Parties as notified to each other from time to time.
Article 27. Installed Line Procurements
27.1 The planned number of lines to be installed in each Quarter (the "Base
Line") as set out in Appendix 7 (Deployment Plan) shall be used as a
fixed number from which to calculate the amount by which planned
Installed Line Procurements can be adjusted from time to time at a DRM
or JPS in accordance with the flexible procurement methodology
contemplated in this Article 27.
27.2 Based on the Deployment Plan for the following Quarter, the calculation
of Installed Line Procurements contemplated in the following Quarter
will be adjusted in accordance with the following formula:
Installed Line Procurements = Base Line x (1+ Percentage Index)
27.3 The Percentage Index shall be 0% for the first Quarter. For subsequent
Quarters, TELKOM may at its sole discretion vary the Percentage Index
by a maximum of 15%, up or down, from the Percentage Index adopted for
the previous Quarter, i.e., the Percentage Index = Percentage Index for
the previous Quarter +/- 15% provided that over the term of this
Agreement, the minimum Installed Line Procurements shall be 60% of the
total cumulative Base Line.
27.4 The Parties may also agree to change
60
the Percentage Index by more than 15% for a particular Quarter,
provided that for purposes of calculating the applicable maximum limits
of the Percentage Index for the following Quarter, the Percentage Index
for the previous Quarter will be deemed to have been varied by a
maximum of 15% only, and the Percentage Index for the following Quarter
calculated from that limit rather than from the actual Percentage Index
of the previous Quarter in which the applicable maximum limits were
exceeded.
27.5 For the avoidance of doubt, once the commitment volumes set forth in
Article 27.3 have been reached, TELKOM shall have no further commitment
to increase the Installed Line Procurements.
Article 28. Purchase Orders and Procedures
28.1 PARTNER shall deliver all Deliverables to TELKOM in response to
Purchase Orders issued by TELKOM from time to time, generally on a
quarterly basis in conjunction with a DRM.
28.2 TELKOM through the TELKOM Project Manager (preferably) or other
authorized TELKOM representative and/or authorized BOT representatives
agreed by the Parties (for particular geographical areas as notified in
writing by TELKOM from time to time) will issue Purchase Orders based
on deployment at a particular DIVRE level.
28.3 A Purchase Order will be valid only if made in writing in the form set
out in Appendix 12 (Purchase Orders), and signed by the TELKOM Project
Manager or his designated representative. Each Purchase Order shall
include necessary and appropriate attachments to clearly describe:
28.3.1 Subscriber Target numbers defined per Location and Site (BTS);
28.3.2 Value of Purchase Order defined per Location and Site (BTS);
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28.3.3 Local Content items and value;
28.3.4 Project Locations/ Site;
28.3.5 Detailed Network Design;
28.3.6 Detailed BoQ; and
28.3.7 The overall Implementation Schedule and the breakdown for each
Location.
28.4 The Subscriber Target for a Purchase Order shall be the Installed Line
Procurement for the DIVRE/Location for the relevant Quarter based on
the Deployment Plan as updated and determined at the related DRM.
28.5 The Subscriber Recorder is TELKOM's database system in the NSS/MSC in
the related DIVRE.
28.6 Within five (5) Business Days from receipt of a Purchase Order, PARTNER
through its authorized representative shall acknowledge the Purchase
Order by countersigning on the space provided on the Purchase Order or
a copy thereof and returning the same to TELKOM by way of facsimile,
followed by mail or hand delivery or by courier. Countersigning of the
Purchase Order by authorized representatives of PARTNER shall be deemed
to constitute acceptance of the Purchase Order without conditions by
PARTNER and any terms and conditions accompanying such acceptance shall
be null and void.
28.7 TELKOM shall not be legally bound to purchase more than its minimum
obligations under this Agreement, based on the maximum reduction to the
Installed Line Procurements allowable under Article 27.
28.8 TELKOM may issue one or more new Purchase Orders as appropriate in
conjunction with a DRM relating to the Installed Line Procurement
requirements for the following Quarter.
28.9 TELKOM may issue one or more new Purchase Orders for general services
or combine them with Purchase Orders for
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Installed Line Procurement with a separate breakdown for the general
services component.
28.10 The T-21 Program includes elements which may be covered by Build
Operate and Transfer ("BOT") arrangements between TELKOM and other
local entities (each an "Investor"). The procurement volumes under
these BOT arrangements are included within the overall T-21 procurement
volumes and are to be planned as part of the JPS and DRM meetings, but
will not be paid in accordance with the PAYG payment method set forth
in Article 32, but shall be paid 100% on Commissioning or as otherwise
agreed.
28.11 The Purchase Orders may however be issued by one or more Investors
directly and if so, shall constitute separate contract(s) between
PARTNER and the Investor for the equipment and services to be supplied.
TELKOM shall provide PARTNER with a list of authorised representatives
of the Investors for each region who can issue such Purchase Orders.
28.12 The maximum prices of the equipment and services and other commercial
terms of these BOT arrangements shall be as provided in Chapter 2 of
this Agreement, but the actual prices shall be subject to negotiation
to the extent of the interest or other savings achieved by virtue of
payment on Commissioning or as otherwise agreed rather than by the PAYG
payment method. Title in the equipment shall be transferred upon full
payment to the Investor (to eventually be transferred to TELKOM at the
end of the BOT arrangement). Payment guarantee will be made by Investor
pursuant to one of the following payment mechanisms: (i) payment to an
escrow account at a bank in Indonesia with acceptable terms and
conditions to PARTNER; (ii) opening of an L/C issued by a bank in
Indonesia with terms and conditions acceptable to PARTNER; or (iii)
issuance of a bank guarantee from a bank in Indonesia with acceptable
terms and conditions acceptable to PARTNER.
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28.13 A three year Service Level Agreement in form and substance as set forth
in Appendix 20 (Service Level Agreement) shall apply to the equipment
procured under the BOT arrangement, provided the BOT arrangement is
within the original scope. The equipment will be operated by TELKOM on
behalf of the Investor during the term of the BOT arrangement, and
TELKOM shall work together with PARTNER as if the BOT equipment were
part of TELKOM's network.
28.14 Chapters 1 and 5 of this Agreement shall apply mutatis mutandis to the
contract between PARTNER and the Investor, unless otherwise agreed.
Article 29. Performance Bond
29.1 As security for the performance of the work to be undertaken by PARTNER
for Package 2 of the T-21 Program, within ten (10) Business Days
following TELKOM's issuance and PARTNER'S acceptance of the Second
Purchase Order, PARTNER shall deliver to TELKOM a performance bond in
favor of TELKOM in the amount of 5% of the total value of the Second
Purchase Order, in form and substance as appears in Appendix 25
(Performance Bond). The Parties agree that it is a condition precedent
to the Second Purchase Order and any subsequent Purchase Orders
becoming a binding contract between the Parties that the Performance
Bond covering the work to be performed under the relevant Purchase
Order(s) is in full force and effect.
29.2 As each new Purchase Order following the Second Purchase Order is
issued and accepted, the value of the then existing Performance Bond
shall be adjusted to reflect the aggregate value of: (i) 5% of the
total value of that Purchase Order; plus (ii) 5% of the total value of
that portion of the previous Purchase Order(s) relating to equipment,
software and components not yet Commissioned as of that date. This
process of adjustment may only be made at the end of each Quarter at
the relevant DRM so
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as to ensure that as each new Purchase Order is issued and accepted,
PARTNER will adjust the value of the Performance Bond to the
appropriate level, taking into account the value of all equipment,
software and components not yet Commissioned at that time under the
relevant Purchase Orders (new or prior). PARTNER shall maintain the
Performance Bond at the appropriate value levels for a period
terminating on a date which is six (6) months from the issuance of the
first Integrated System Acceptance Test Certificate by TELKOM pursuant
to this Agreement.
Article 30. Termination of Purchase Orders
30.1 A Purchase Order may be terminated by TELKOM in whole or in part and
from time to time, whenever TELKOM shall so determine. TELKOM shall
deliver to PARTNER a written notice, the "Notice of P.O. Termination",
specifying the extent to which performance of work under the Purchase
Order is terminated and the date (which shall be not less than five (5)
Business Days from the date of the written notice) upon which such
termination becomes effective.
30.2 On receipt of such a Notice of P.O. Termination, unless otherwise
directed by TELKOM in the notice. PARTNER shall:
30.2.1 stop work under the Purchase Order on the date and to the extent
specified in the Notice of P.O. Termination;
30.2.2 place no further orders or contracts for materials, services, or
facilities except as may be necessary for completion of any portion of
the work under the Purchase Order which is not terminated;
30.2.3 use reasonable efforts to terminate all
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orders and contracts to the extent that they relate to the performance
of work terminated by the Notice of P.O. Termination;
30.2.4 subject to payment by TELKOM in accordance with Article 30.3, assign to
TELKOM, in the manner, at the time and to the extent directed by
TELKOM, all of PARTNER's rights, title and interest under the orders
and contracts so terminated;
30.2.5 use reasonable efforts to settle all outstanding liabilities and all
claims arising out of such termination of orders and contracts, with
TELKOM's approval or ratification to the extent they may require, which
approval or ratification shall be final for all the purposes of this
Article 30;
30.2.6 subject to payment by TELKOM in accordance with Article 30.3, (i)
transfer title and deliver to TELKOM in the manner, at the time, and to
the extent (if any) directed by TELKOM the fabricated or unfabricated
parts, work in progress, completed work, supplies, and other material
produced as part of, or acquired in connection with the performance of
the work terminated by the Notice of P.O. Termination, and (ii) deliver
to TELKOM the completed or partially completed plans, drawings,
information and other property which, if the Purchase Order had been
completed, would have been required to be furnished to TELKOM;
30.2.7 use reasonable efforts to sell, in the manner, at the time, to the
extent and at the price or prices directed or authorized by TELKOM, any
property of the types referred to above, provided, however, that
PARTNER; (i) shall not be required to extend credit to any buyer; and
(ii) may acquire any such property under the conditions prescribed by
and at a price approved by TELKOM; and provided further that the
proceeds of any such
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transfer or disposal shall be applied in reduction of any payments to
be made by TELKOM to PARTNER under this Agreement or paid in such other
manner as TELKOM may direct;
30.2.8 complete performance of such part of the Scope of Work as may not have
been terminated by the Notice of P.O. Termination; and
30.2.9 take such action as may be necessary, or which TELKOM may direct, for
the protection and preservation of the property related to the Purchase
Order which is in PARTNER's possession and in which TELKOM have or may
acquire an interest.
30.3 After reception of a Notice of P.O. Termination PARTNER shall submit to
TELKOM a written termination claim. Such claim shall be submitted
promptly, but in no event later than ninety (90) calendar days from the
Notice of P.O. Termination. Payment of claimed amounts under such
termination claim agreed by TELKOM to be payable in accordance with
performance by PARTNER of its obligations under Article 30.2, shall be
payable to PARTNER pursuant to issuance of a special Purchase Order and
payment shall be made by TELKOM within twenty-one (21) Business Days of
approval by TELKOM (such approval not to be unreasonably withheld or
delayed) of the claim. For the avoidance of doubt, for purposes of
TELKOM's payment obligations under this Article 30, any equipment,
software or components related to a Purchase Order for which Notice of
P.O. Termination has been given shall be inspected and checked to the
satisfaction of TELKOM, which inspection shall be deemed to constitute
Commissioning. In such event the Subscriber Target for the terminated
portion of the equipment, software or components will be adjusted to
zero and the value of that portion of the Purchase Order terminated
shall not be taken into account for the purposes of Article 32.2.
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30.4 In the settlement of any such partial or total termination claim,
TELKOM's payment to PARTNER shall be limited to the following:
30.4.1 the price for completed work, based on Appendix 4 (Price Schedule);
30.4.2 a fair and reasonable sum in respect of partially completed work
prorated where practicable based on Appendix 4 (Price Schedule);
30.4.3 the cost of supplies and materials reasonably and necessarily purchased
in respect of the terminated portion of the Purchase Order, but not
incorporated into completed or partially completed work;
30.4.4 the cost of settling and paying claims arising out of the termination
of the work under contracts and orders, as provided above, which are
property chargeable to the terminated portion of the Purchase Order;
30.4.5 the reasonable costs of accounting, legal and clerical expenses
reasonably necessary for the preparation of settlement claims and
supporting data with respect to the terminated portion of the Purchase
Order and for the termination and settlement of contracts thereunder,
together with reasonable storage, transportation, and other costs
incurred in connection with the protection or disposal of property
allocable to the Purchase Order.
30.5 Notwithstanding the above, the total payment to PARTNER pursuant to
this Article 30, taken together with any other payment, shall not
exceed the value applicable to the work or to part therefore so
terminated. TELKOM shall not be responsible for any costs or charges
beyond those costs which have been claimed and validated in accordance
with
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Article 30.4, nor shall PARTNER be entitled to require any waiver or
variation of the Agreement by reason of such termination. TELKOM shall
not be liable to PARTNER in the event of such termination for any loss
of profit or consequential damages whatsoever.
30.6 In arriving at the amount due to PARTNER under this Article 30, there
shall be deducted from all monies paid or due to be paid to PARTNER,
any liabilities which PARTNER may have to TELKOM and the agreed price
for or the proceeds of sale of any materials, supplies or other things
acquired by PARTNER or sold, pursuant to the provisions of this
Article, and not otherwise recovered by or credited to TELKOM. If this
results in PARTNER having a net liability towards TELKOM, such sum
shall be payable by PARTNER to TELKOM on demand.
30.7 For a period of one (1) year after final settlement under the Purchase
Order, PARTNER shall preserve and make available to TELKOM at all
reasonable times at PARTNER's premises, but without charge to TELKOM,
all books, records and documents bearing on costs and expenses under
the Purchase Order relating to the work terminated under this Article
30.
Article 31. Terms of Payment
31.1 Payments by TELKOM shall be made to PARTNER in accordance with the
terms of each Purchase Order. The Parties contemplate that TELKOM will
pay for equipment procured pursuant to this Agreement in three
instalments: upon delivery, following Commissioning as evidenced by
issuance of the respective Integrated System Acceptance Test
Certificate, followed by payment during the PAYG Period, in accordance
with the terms and conditions of this Article 31.
31.2 TELKOM will pay 10% of the value of a
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particular Purchase Order upon delivery of the Deliverable (and
equipment related services but not including general services for
operation and maintenance, spare parts, software upgrades,
Documentation and training) to the Location specified in the Purchase
Order. This amount shall be due upon delivery to TELKOM of an invoice
for the agreed sum, accompanied by the following documents, or such
additional documents as may reasonably be required by TELKOM:
31.2.1 Invoice covering letter;
31.2.2 Original shipping documents (xxxx of lading or A/W xxxx) for imported
equipment;
31.2.3 Packing list for equipment;
31.2.4 Detailed BoQ and the value of the detailed BoQ by Location and Site;
31.2.5 Tax invoice ("Faktur Xxxxx") and tax payment slip (SSP) ("Surat Setoran
Xxxxx");
31.2.6 Original Goods Delivery Certificate ("Berita Acara Barang Tiba") issued
by TELKOM for equipment; and
31.2.7 Simple receipt ("Kuitansi").
31.3 TELKOM will pay 15% of the proportionate value of a particular Purchase
Order upon successful Commissioning of all or part of the equipment,
software and components in a particular Purchase Order as evidenced by
TELKOM's issuance of the related Integrated System Acceptance Test
Certificate or Partial Integrated System Acceptance Test Certificate.
This amount shall be due upon delivery to TELKOM of an invoice for the
agreed sum, accompanied by the following documents, or such additional
documents as may reasonably be required by TELKOM:
31.3.1 Invoice covering letter;
31.3.2 Detailed BoQ and the value of the detailed BoQ by Location and Site;
31.3.3 As-built drawings;
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31.3.4 Original Integrated System Acceptance Test Certificate and/or Partial
Integrated System Acceptance Test Certificate, certified by TELKOM;
31.3.5 Tax invoice ("Faktur Xxxxx") and tax payment slip (SSP) ("Surat Setoran
Xxxxx"); and
31.3.6 Simple receipt ("Kuitansi").
31.4 The remaining value of each Purchase Order (the "PAYG Value"),
constituting 75% of the total value of a particular Purchase Order,
shall be payable only upon issuance of the associated Integrated System
Acceptance Test Certificate(s) (and not Partial Integrated System
Acceptance Test Certificates) in accordance with the PAYG provisions of
Article 32, provided PARTNER shall have delivered to TELKOM an invoice
for the agreed sum of each PAYG payment, accompanied by the following
documents, or such additional documents as may reasonably be required
by TELKOM:
31.4.1 Invoice covering letter;
31.4.2 Tax invoice ("Faktor Xxxxx") and tax payment slip (SSP) ("Surat Setoran
Xxxxx");
31.4.3 Simple receipt ("Kuitansi");
31.4.4 Copy of Integrated System Acceptance Test Certificate(s) certified by
TELKOM;
31.4.5 Calculation of the cumulative value of PAYG payments due under that
invoice; and
31.4.6 Calculation of the cumulative value of previous PAYG payments and the
remaining value of the Purchase Orders.
Article 32. PAYG Payments
32.1 For the purposes of implementing the Pay as You Grow (PAYG) concept
contemplated in the T-21 Program, all Purchase Orders relating to all
or any part of the Deliverables that have been Commissioned (excluding
those in relation to general services for operation and maintenance,
spare parts, software upgrades, Documentation and training) in
71
the same Quarter shall be grouped together on a DIVRE level basis,
provided also that a group of Purchase Orders may be segmented by types
of equipment, software, components and scope of services, if necessary.
For the purposes of administration, each Purchase Order shall at the
end of the relevant Quarter be treated as if comprised of two parts as
appropriate, one part comprising all Commissioned Deliverables and one
part comprising the Deliverables not yet Commissioned.
32.2 After the unpaid parts of the Deliverables Commissioned in previous
Quarters are paid off fully, PAYG payments for that part of each
Purchase Order comprising Commissioned Deliverables in each DIVRE shall
become due at the end of each Quarter based on the net increase in
subscribers in the DIVRE at the end of each Quarter as stated in the
Subscriber Recorder, and shall be calculated as follows:
Total number of T-21
Program CDMA
subscribers in that DIVRE
at the end of that Quarter
minus the total number of
T-21 Program CDMA
subscribers in that DIVRE Total PAYG
at the end of previous value of all
Quarter Deliverables
---------------------- X Commissioned
Total Subscriber Target in that Quarter
number attributable to the
Deliverables that have been
Commissioned in that DIVRE in that Quarter
The methodology to calculate the PAYG payments is provided in Appendix
11.
32.3 Where only part of the equipment (e.g., a
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BTS or card) in a Location/Site referred to in a Purchase Order has
been Commissioned, (i) the Subscriber Target shall be based on the
Commissioned BTS or cards; and (ii) the PAYG Value attributable to that
equipment, software and components shall be based on the value of said
Commissioned BTS or cards including the associated software and
components.
32.4 The PAYG Value of equipment, software and components such as MSC, BSC,
HLR, SMSC, MMSC, VMS, IWF, and other equipment in relation to a
particular Purchase Order containing such equipment shall be calculated
at the end of the Quarter by using the total value of such equipment
software and components Commissioned in that Quarter multiplied by the
ratio of the Subscriber Target of all BTS Commissioned in that Quarter
divided by the total Subscriber Target of all BTS in the related
Purchase Order.
32.5 Purchase Orders (or amended Purchase Orders) signed by TELKOM will
be paid off sequentially commencing with the earliest in time.
Non-Commissioned Deliverables in a Purchase Order issued in a
particular Quarter will be carried forward into the Purchase Order(s)
aggregated in the following Quarter, until Commissioned, and if
Commissioned in that Quarter, will be accounted for in the calculation
of the PAYG payment in that Quarter. To facilitate this calculation,
the particular Purchase Order from which non-Commissioned
Deliverables has been carried forward into the following Quarter shall
be deemed amended by mutual agreement of the Parties by way of
inclusion of such non-Commissioned Deliverables in a subsequent
Purchase Order issued in that following Quarter. Thereafter, without
further action of the Parties, such Purchase Order previously comprised
of both Commissioned and non-Commissioned Deliverables shall be deemed
to be comprised only of Commissioned Deliverables and, as such, become
payable under the PAYG payment mechanism set out in this Article 32.
Adjustments, if any, that are required to be made to the
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Implementation Schedule and/or Deployment Plan as a result of this
carry-forward exercise shall be discussed and decided at the relevant
DRM.
32.6 The net subscriber increase within the second and/or following Quarter
will be counted first towards the cumulative subscribers related to the
equipment Commissioned in the first Quarter to the extent such portion
of such Purchase Order relating to the equipment, software and
components Commissioned in the Quarter have not been paid fully, and
then towards the cumulative subscribers related to the equipment
Commissioned in the second and/or following Quarter.
32.7 If there is a decrease in the number of subscribers due to churn or
other reasons in the following Quarter, then no PAYG payments shall be
due until the current number of subscribers has exceeded the number of
subscribers at the time the last PAYG payment became due.
32.8 If the PAYG Value of a Purchase Order has not been paid by the end of
its PAYG Payment Period, the remaining unpaid amount shall be due upon
delivery to TELKOM of an invoice for that amount.
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32.9 In order to calculate the PAYG Value applicable to each Quarter, TELKOM
shall within ten (10) Business Days of the end of each Quarter, provide
to PARTNER the net number of new subscribers added and the total number
of subscribers per DIVRE as recorded by the Subscriber Recorder.
PARTNER shall within ten (10) Business Days of receipt of the
Subscriber Recorder numbers, submit to TELKOM an invoice showing the
PAYG payments due by DIVRE and Purchase Order number (or amended
Purchase Order number) for that Quarter.
Article 33. General Services Payments
33.1 General services for training provided under this Agreement are not
under the PAYG payment scheme and shall be invoiced by PARTNER
supported by a copy of the Training Acceptance Certificate issued by
TELKOM, after the services have been completed and shall be payable by
TELKOM thirty (30) days after the date of the invoice is received by
TELKOM.
33.2 All general services for Documentation to be provided by PARTNER under
this Agreement shall be invoiced by PARTNER supported by a copy of a
Documentation Acceptance Certificate issued by TELKOM and shall be paid
25% on delivery and the remaining 75% shall be paid in accordance with
the PAYG payment scheme by adding the amount due to the Contract Value
of the group of Purchase Orders for equipment, software and components
Commissioned in that Fiscal Year and paid in accordance with the PAYG
Payment Period for that group of Purchase Orders.
33.3 Payments for operation and maintenance, spare parts, software updates
and upgrades shall be made and paid in accordance with the terms of the
applicable Service Level Agreement.
Article 34. Invoicing
34.1 Payments by TELKOM shall be made to PARTNER based on the issuance and
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delivering of invoices to TELKOM.
34.2 All invoices shall be submitted in triplicate, shall be sent by courier
and shall be accompanied by the relevant documentation listed in
Article 31 showing the acknowledgement by TELKOM or its agent of the
relevant equipment or services delivered and/or such other supporting
documents as may be required by TELKOM. All invoices shall be addressed
to:
Head of Fixed Wireless Division (as
Project Manager)
Xxxxx Xxxxx Xxxxx, Xxx. 00
Xxxxxxx
Xxxxxxxxx
34.3 TELKOM shall have (a) fifteen (15) Business Days from receipt of an
invoice to either (i) dispute the amounts due by notice in writing or
(ii) instruct the amount to be released under the vendor financing
arrangements, or (b) thirty (30) calendar days to pay PARTNER if paid
directly by TELKOM (without involvement of a vendor financing
institution). If TELKOM disputes the invoice, PARTNER shall have five
(5) Business Days to reissue a further invoice and the provisions of
sub-paragraph (a) and (b) shall again apply.
34.4 TELKOM shall pay interest at the rate of 6% per annum, on any
undisputed payment due and unpaid for a period of three (3) months, up
to a maximum of 5% of the undisputed and unpaid portion of the Contract
Value referenced in the applicable Purchase Order, commencing from the
end of such 3-month period.
Article 35. Financing of TELKOM'S Payment Obligations
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35.1 PARTNER has agreed to seek and arrange financing from Korean EXIM Bank
and TELKOM and PARTNER have entered into discussions in relation to a
financing proposal for the financing of TELKOM's payment obligations
under this Agreement. The general concept of the financing proposal and
payment mechanism is set out in Appendix 15 (Financing Arrangements).
The Parties intend to conclude the financing arrangements as soon as
possible following execution of this Agreement but in any event at the
latest six (6) months following such execution. In the event that the
Parties cannot agree on acceptable financing terms with the relevant
financial institution(s) by the end of such six (6) month period, or as
such period may be extended by mutual written agreement of the Parties,
TELKOM reserves the right to terminate the Agreement in accordance with
the provisions of Article 14.
35.2 If the financing arrangements contemplated in Article 35.1 have not
been put in place within the period required in Article 35.1 and if
TELKOM decides not to exercise its right to terminate, TELKOM shall
provide alternate financing or a bank guarantee or equivalent security
satisfactory to PARTNER in relation to all Purchase Orders issued or to
be issued.
Article 36. Change Request Procedures
36.1 During implementation of the Scope of Work, a Party may request at any
time that a change be made to (without limitation) the Deliverables,
Purchase Orders, the Installed Line Procurements, the Implementation
Schedule, the Deployment Plan or other Appendix to this Agreement, as
the case may be. Such request shall be made in the form of a "Change
Request" and must be in writing.
36.2 The Change Request form shall be completed by the requesting party in
accordance with Appendix 18 (Change Request).
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36.3 Within ten (10) Business Days after receipt of a Change Request, or
within such other period as may be agreed, PARTNER will evaluate the
Change Request and provide a full written quotation or cost reduction
estimate specifying the form that the proposed amendment will take and
detailing the cost impact and effect on the works, including the
Implementation Schedule.
36.4 In the event that the Change Request is processed and agreed in the
required form, the relevant Deliverables, Purchase Order(s), Installed
Line Procurements, Implementation Schedule, Deployment Plan or other
Appendix to this Agreement, as the case may be, shall be deemed amended
accordingly.
36.5 In the event that the Change Request cannot be agreed, there shall be
notification of the reasons in writing within ten (10) Business Days of
receiving the Change Request. Otherwise, when the Parties agree to
implement the Change Request, the details of such change shall be
specified and agreed in writing.
36.6 At the same time as giving the Change. Request, the requesting Party
shall provide the other Party such information as may reasonably be
required to assess the impact of the Change Request on the overall
Scope of Work. If there is a reasonable possibility that there will
need to be a material amount of time and effort spent in dealing with a
Change Request, additional payment or payment reduction, as
appropriate, for that time and effort may be negotiated, but
compensation for any work to deal with the Change Request shall be
contingent on prior written agreement between TELKOM and PARTNER.
36.7 PARTNER shall make such changes and implement the Change Request only
upon execution by the Parties of a written document specifying the
agreed changes, the scope of the changes, the
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adjustments to the Implementation Schedule, if any, the
additional/costs or reduction of costs, if any, and which Party,
jointly or severally, is entitled to the Intellectual Property Rights,
if any.
36.8 Where immaterial changes in the overall size, scope or functionality of
the Deliverables or to the Scope of Work or Technical Specifications
result in an amendment of a Purchase Order and/or this Agreement, such
changes will not affect the Contract Value or the Implementation
Schedule. The cost of any minor amendments or variations or amendments
required by reason of any defect or deficiency in any design or
Documentation or any equipment, component or software made or provided
by PARTNER shall be borne solely by PARTNER.
36.9 In the event TELKOM and PARTNER cannot reach agreement on the scope and
impact of a Change Request, the matter shall first be referred to the
respective managements of both TELKOM and PARTNER, and failing
agreement, the provisions of Article 16 shall apply.
Article 37. Relocation of Equipment
37.1 Following discussion between the Parties of costs and benefits, TELKOM
may decide to re-locate equipment within a DIVRE if it decides that
initial demand projections or forecast in a given Location were not
accurate and the equipment to be procured pursuant to a Purchase Order
is not likely to generate the revenue that was expected.
37.2 Upon written request of TELKOM, PARTNER shall assist with and supervise
such relocation including redesigning the Network and conducting all
appropriate tests to put the re-deployed equipment into service.
37.3 PARTNER shall bear the costs for the relocation of modular equipment
such as sub-racks and cards which the Parties have agreed do not entail
substantial
79
costs. In all other cases, TELKOM and PARTNER shall conduct a cost
benefit analysis prior to any relocation. All reasonable costs
associated with the relocation of all other equipment shall be borne by
TELKOM. Any relocation of equipment conducted by TELKOM shall be
supervised by PARTNER. PARTNER shall bear the costs of providing the
supervision service. TELKOM shall bear the costs of any additional
equipment required.
Article 38. Details of PARTNER's Bank accounts
38.1 Details of PARTNER's bank accounts into which all payments from TELKOM
shall be paid into are set out below:
USD a/c : Samsung Electronics Xx.Xxx. 060-084489-42-105 (BIC Code:
XXXXXXXX):
IDR a/c:
[to be supplied by PARTNER in writing, which written notification shall
become an inseparable part of this Agreement].
CHAPTER 4. CONSORTIUM ORGANIZATIONAL MATTERS
Article 39. Consortium Membership Criteria
39.1 The Consortium of which PARTNER is a part shall have at least one
Indonesian-owned business entity.
39.2 The Consortium leader shall be required to be the leading technology
supplier for the Project (i.e. the radio network manufacturer)
39.3 All substitutions, replacements or other changes to the composition of
the membership of PARTNER's Consortium must be submitted to and
approved by TELKOM in writing before being implemented.
Article 40. Assignment and Subcontracting
40.1 PARTNER shall not, without the prior written consent of TELKOM, assign
this
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Agreement, or assign or encumber any of the moneys due or becoming due
under it. TELKOM reserves the right to assign this Agreement, without
prior approval of PARTNER to an Investor, as contemplated in Articles
28.10 - 28.14 provided the Investor gives PARTNER satisfactory payment
assurances under Article 28.12 of this Agreement.
40.2 TELKOM reserves the right to assign this Agreement, with the prior
approval of PARTNER such approval not to be unreasonably withheld, to
any of TELKOM's subsidiaries or related companies.
40.3 A schedule of each proposed sub-contractor and the part of the Scope of
Work proposed to be performed by such sub-contractor is attached in
Appendix 1. In case of any plan to change and/or to add a
sub-contractor, PARTNER shall notify TELKOM in writing immediately
before the proposed sub-contractor is appointed. TELKOM shall advise
within ten (10) Business Days if it has substantive objections to the
appointment of any of such proposed sub-contractors and/or the work
they were intended to do, and PARTNER shall take such objections into
account so as to meet with TELKOM's approval.
40.4 The use of sub-contractors shall in no way relieve PARTNER from its
responsibility to deliver the Deliverables to TELKOM (in particular to
ensure that any Deliverables comply with all requirements of this
Agreement) or to perform necessary tasks such as project management
related to this responsibility in accordance with this Agreement.
40.5 PARTNER shall ensure that the addition or removal of any
sub-contractors shall not impact the agreed Contract Value or
implementation of the Scope of Work.
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Article 41. Involvement of Local Entities
41.1 PARTNER shall use all reasonable efforts to maximize involvement of
entities in Indonesia in its provision of Deliverables, the objective
being to maximize financial benefits as well as transfer of knowledge
and learning in Indonesia and thereby reduce TELKOM'S exposure to
foreign exchange risk. In this connection, "all reasonable efforts"
will be defined by reference to a minimum threshold level of local
Indonesian involvement in executing the Project, comprising a
percentage of the total contract value of the Project, which is minimum
20% of the Contract Value of Package 2.
41.2 The Local Content requirement can be satisfied by reference to the
total contract value of the Project executed through Local Indonesian
Entities, whether as members of PARTNER, key subcontractors or through
other external Indonesian parties.
41.3 TELKOM agrees that expenses of non-Local Indonesian Entities
supporting the Project may be included in the calculation of total
contract value for these purposes, including salaries paid to staff
located in Indonesia (Indonesian nationals or residents only), property
rental and other operational expenses of Indonesia offices,
administrative materials and services acquired in Indonesia, provided
that PARTNER executes an undertaking to TELKOM as provided below.
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41.4 The undertaking required by TELKOM shall state that PARTNER will, over
the duration of the Project, procure certain materials and services
within Indonesia (stating all categories of materials and services) to
support the local operations of the overseas companies in the
Consortium. Further, that all such procurements will be in accordance
with the requirements stated either explicitly or implied by TELKOM in
the RfP for the T-21 Program.
41.5 TELKOM reserves the right to verify, accept or reject all claims in
part or in full regarding execution of the Project through Local
Indonesian Entities, expenses of overseas companies and in regard to
the claimed transfer of skills, technology and financial benefits.
Article 42. Logistics
42.1 PARTNER shall provide all logistical requirements from the point of
origin of the any equipment, components or other Project goods to the
applicable Project Location/Site, inclusive of all charges, such as
transport and transit, demurrage, storage, insurance, fees, levies,
taxes, etc. In addition PARTNER shall quote the cost of all equipment
related services (covering survey, design, planning, permits, right of
way, services related to land acquisition, installation, integration,
project management, insurance up to transfer of title, testing and
commissioning, frequency licence acquisition and all related materials
and expenses) for both imported and local goods.
42.2 PARTNER shall provide all arrangements for shipping/ transportation,
forwarding and servicing equipment, components or other Project goods
from their point of origin to the Project Location/Site where they are
finally deployed.
42.3 PARTNER shall provide all warehousing requirements and explain the
locations of the facilities to be used for this purpose. PARTNER will
also be required to arrange for warehousing and storage facilities at
installation sites to ensure proper storage and protection of all
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equipment, components or other Project goods. PARTNER shall ensure that
all equipment is adequately packaged and stored to avoid any damage.
While in such warehousing, the equipment and material will be the sole
responsibility of PARTNER.
42.4 PARTNER shall provide all required protection, insurance and other
services to ensure safe delivery of the all equipment, components or
other Project goods. PARTNER shall be responsible for any damage or
loss of goods.
Article 43. Inventory
43.1 PARTNER shall provide all services to ensure proper installation of
equipment, components or other Project goods, provide optimal operating
conditions and maximize the long term viability of the foregoing.
PARTNER must provide all tools and equipment necessary to install and
commission any Project equipment procured under this Agreement.
43.2 Provision of materials, labor, equipment, tools and machinery for
installation shall consist of the following activities:
43.2.1 PARTNER's contractor shall provide all materials (including cables,
connectors and other miscellaneous materials), labor, tools,
transportation, telecommunication facilities (telephone, facsimile,
etc.) and everything else necessary for completion of work in
accordance with this Agreement;
43.2.2 PARTNER's contractor shall employ an adequate supervisory force and an
adequate staff of experienced engineers, technicians and workmen to
complete the Scope of Work in a satisfactory and xxxxxxx like manner
within the time specified in the this Agreement;
43.2.3 with the cooperation of TELKOM staff, all work at any Location/Site
shall be carried out in such a manner as to minimize any obstructions
to the operation of TELKOM's staff at such Location/Site;
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43.2.4 PARTNER and its sub-contractors shall itemize and provide all
equipment, tools, measuring equipment, machinery and electrical power
equipment necessary for execution of the Scope of Work in Indonesia;
and
43.2.5 PARTNER and its sub-contractors shall provide a list of equipment,
tools, measuring equipment, machinery and electrical power equipment
which is used for installation purpose only.
43.3 Delivery and storage of Project equipment and materials shall consist
of the following activities:
43.3.1 the PARTNER and its sub-contractors shall be responsible for storage
arrangements during the interval from the delivery of equipment until
it is required for installation;
43.3.2 the PARTNER and its sub-contractors shall be responsible for loading
and unloading as well as handling of any equipment and materials at all
stages up to Commissioning;
43.3.3 PARTNER and its sub-contractors shall also be responsible for unpacking
(and repacking where necessary), identification and checking of
materials and relevant invoices or other documents; and
43.3.4 PARTNER and its sub-contractors shall be responsible for handling and
storage of any goods during transportation and at the site.
Article 44. Local Support Infrastructure
44.1 PARTNER shall have local (Indonesian) infrastructure in place to
support the T-21 Program as set out in Appendix 10. PARTNER shall
provide TELKOM access to its local technical staff to ensure effective
deployment, operations and timely problem solving. PARTNER shall use
its best endeavours to ensure that such local support is timely, cost
effective, and of high quality in order to meet TELKOM's desired
service levels.
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Article 45. Project Management
45.1 PARTNER shall propose a Project Management Plan ("PMP"), in a form as
provided in Appendix 8 (Project Management Plan). TELKOM and PARTNER
shall discuss and mutually agree on the details of the PMP.
45.2 Prior to start-up of Project activities, the Parties shall have agreed
on a PMP containing at least the following:
45.2.1 Scope of Work;
45.2.2 Project organization and personnel;
45.2.3 Project activity plan and schedule by Location;
45.2.4 Reporting of progress and issues.
45.3 PARTNER shall appoint the Project personnel as described in the PMP
including a Project Manager who will be responsible for contact with
TELKOM with respect to resolving issues arising in the course of
Project implementation. The Project Manager may also serve as one of
the Project personnel referenced in the PMP.
45.4 The identity and qualifications of all Project personnel proposed by
PARTNER to work on the Project, including the Project Manager as
described in the PMP shall be notified in writing by PARTNER to TELKOM
before appointment. The Project Manager shall only be appointed with
TELKOM's prior approval. For all other Project personnel, TELKOM shall
inform PARTNER of any objections within ten (10) Business Days of
notification and any Project personnel to whom TELKOM objects shall not
be appointed. Replacements must be equally well qualified and
appropriate for the Project.
45.5 At TELKOM's sole discretion, TELKOM may appoint its Project Manager
with whom PARTNER Project personnel shall maintain close cooperation
and communication at all times. TELKOM
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may also appoint local supervisors with whom PARTNER's local Project
personnel shall maintain close cooperation and communication at all
times.
45.6 TELKOM may object to and, after consultation with PARTNER direct
PARTNER to remove from any site immediately any person employed by
PARTNER or any sub-contractor at the site who, in the reasonable
opinion of TELKOM, misconducts himself, has proved to be unsuitable
under the terms of the Scope of Work or is incompetent or negligent in
the performance of his duties, and such person shall not be employed
again at any Project site except with the prior written approval of
TELKOM.
45.7 PARTNER shall submit to TELKOM the required progress report described
in the Scope of Work. With respect to any period covered by a progress
report, in the event that PARTNER fails to inform TELKOM of any
problem, TELKOM shall be entitled to presume that no such problem arose
during such period. However, submission by PARTNER to TELKOM of the
specified progress reports will not alter, amend or modify PARTNER
obligations pursuant to any other provision of this Agreement.
45.8 PARTNER shall provide complete project management support to the
Project including without limitation, managing the constituents members
of PARTNER, subcontractors and other suppliers, as well as managing the
acquisition of required sites, licenses, permits and rights of way.
45.9 PARTNER shall provide comprehensive and up-to-date reporting to TELKOM
management at all appropriate levels to track progress of the Scope of
Work, monitor key requirements, identify and address issues and ensure
high quality of deployment achieved within budget.
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45.10 PARTNER shall provide the following types of reports to TELKOM during
the period of deployment of the Network on a monthly basis:
(a) Deployment Status Update;
(b) Updated Issues Log;
(c) Shipment Tracking Report.
45.11 PARTNER shall at intervals of two (2) months submit an updated
Implementation Schedule to TELKOM. The updated Implementation Schedule
shall contain important milestones including:
45.11.1 Commencement of implementation of each Location;
45.11.2 Commencement of the detailed survey for each Location;
45.11.3 Completion of installation, construction designs, drawings associated
with the Project;
45.11.4 Readiness dates for interim inspections, PARTNER own tests, and
Commissioning tests for each Location/Site;
45.11.5 Manufacturing and transportation schedules of materials for each Sub-
system per each Location including the times of factory performance
tests.
45.12 Delivery of equipment, components, software and services by PARTNER,
shall be in conformity with the provisions of this Agreement and/or the
respective Purchase Order, including the time schedule and milestones
set forth in Appendix 9 (Implementation Schedule).
45.13 Each alteration to the Implementation Schedule shall be upon mutual
agreement of the Parties and valid only if executed as a Change Request
signed by the authorized representative of each of the Parties.
45.14 PARTNER shall perform (without limitation) the following tasks with
regards to the general business administration of the Project, i.e.:
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45.14.1 Invoicing and recordation of TELKOM payments;
45.14.2 personnel management;
45.14.3 Taxes; and
45.14.4 Insurance.
45.15 PARTNER shall report on the Project's progress, including any
significant difficulties encountered, to TELKOM at monthly meetings in
accordance with Article 26.3.
45.16 PARTNER shall liase with TELKOM in each DIVRE for deployment
coordination and with regional authorities, public utilities and third
parties in the areas for permits and Network roll-out. The liaison
shall be arranged during regular monthly meetings with TELKOM and the
following parties during Network roll-out: (i) TELKOM in the Regional
Division area; (ii) other TELKOM contracting parties; and (iii)
subcontractors.
45.17 In addition, the Parties shall arrange adhoc meetings as required on
reasonable notice to deal with co-ordination and implementation related
issues.
Article 46. Research and Development
46.1 PARTNER shall from time to time at TELKOM's request consider
participating in joint development efforts in the field of software and
services enhancement. Any such joint development activities shall be
mutually agreed upon as to the scope, responsibilities of each Party,
allocation of costs and other mutually agreed items. TELKOM employees
shall be actively involved in such development efforts and all
Intellectual Property Rights developed shall be jointly owned.
46.2 Pursuant to Article 5.1.9, PARTNER shall provide timely notice to
TELKOM of its newest tested technologies and any improvements it deems
advantageous to TELKOM in the current Project "road map" of technology
development.
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Article 47. Training, Transfer of Know How and Development of Intellectual
Property
47.1 PARTNER shall provide training in accordance with this Article 47 and
the detailed training requirements and schedule specified in Appendix
19 (Training). TELKOM shall provide qualified engineers for training
programs provided by PARTNER under this Agreement.
47.2 Training shall be conducted in two (2) parts, one in PARTNER's training
center in Korea and the other in Indonesia. For both training
locations, PARTNER shall provide class-room training ('Class') and
On-the-job training ('Job'). PARTNER shall propose detailed schedules
for both types of training based on TELKOM's requirements.
47.3 The training course shall cover 3 (three) areas of expertise, i.e.:
(a) SYSTEM ENGINEERING
PARTNER shall conduct training in an efficient manner to
produce well trained proficient personnel capable of
engineering. The course is intended to train personnel to have
basic knowledge of CDMA network planning and system design
engineering.
(b) OPERATION AND MAINTENANCE
The course is intended to train personnel to have basic
knowledge of system's operation and maintenance and who shall
be required to provide guidance and instruction, necessary to
the entire operation team after completion.
(c) BUSINESS DEVELOPMENT AND MARKETING
The course is intended to train
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personnel to have basic knowledge on how to develop the CDMA
FWA business and will include training on product knowledge
and marketing.
47.4 Overseas Training
47.4.1 The overseas training requirement for NSS and BSS is summarized below:
NUMBER OF TRAINEES PER TRAINING
-------------------------------------------
BSS PARTNER
--------------------------- NSS
PACKAGE 2 PARTNER
NUMBER OF -------------------------------------------
TRAINING DURATION CLASS JOB CLASS JOB
-----------------------------------------------------------------------------------------
System Engineering 2 times 2 weeks 10 N/A 10 N/A
-----------------------------------------------------------------------------------------
Operation and
Maintenance 2 times 2 weeks 10 10 10 10
-----------------------------------------------------------------------------------------
Business
Development and
Marketing 2 times 2 weeks 10 N/A N/A N/A
-----------------------------------------------------------------------------------------
47.4.2 For overseas training, the following costs are included in the unit
price:
(a) Daily allowance for accommodation and meals of $200 per
trainee including Saturday and Sunday and 2 days for travel
(arrival and departure)
(b) Airport tax, excess baggage and fiscal $500 per person
(c) Insurance, $50 per person
(d) Tuition fee (including training materials)
(e) Roundtrip airfares from Indonesia to PARTNER's Main Training
Center, according to the following rates:
(i) Europe : $3,500/PAX
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(ii) United States : $3,500/ PAX
(iii) Asia : $1,500/PAX
(iv) Australia : $2,000/PAX
47.5 In-Country Training
47.5.1 The in-country training requirement for NSS and BSS is summarized
below:
NUMBER OF TRAINEES PER TRAINING
-------------------------------------------
BSS PARTNER
--------------------------- NSS
PACKAGE 2 PARTNER
NUMBER OF -------------------------------------------
TRAINING DURATION CLASS JOB CLASS JOB
-----------------------------------------------------------------------------------------
System Engineering 2 times 2 weeks 10 N/A 10 N/A
-----------------------------------------------------------------------------------------
Operation and
Maintenance 2 times 2 weeks 10 10 10 10
-----------------------------------------------------------------------------------------
Business
Development and
Marketing 2 times 2 weeks 10 N/A N/A N/A
-----------------------------------------------------------------------------------------
47.5.2 For local training, the following costs per trainee are included in the
unit price:
(a) Divlat (TELKOM's training center) fee: $350 per week for
accommodation, meals and training venue (not required for
on-the-job training)
(b) Tuition Fee (including training materials)
47.6 Training Materials and Tools
47.6.1 PARTNER shall provide the following materials and tools for class-room
training:
(a) Introduction of CDMA FWA including supported services;
(b) System Planning, Engineering, Operation and Maintenance
Procedures;
(c) Network Planning, which includes Traffic Engineering and
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Link Budget;
(d) Installation and Test Procedures; and
(e) Troubleshooting.
47.6.2 PARTNER shall propose the following training material and tools, for on
the job training:
(a) Operation and maintenance procedure of CDMA FWA;
(b) System performance measurement; and
(c) Trouble shooting by measuring equipment.
Article 48. Management Forum
The Parties shall establish a regular channel of communication between their
respective managements and shall hold meetings on a semi-annual basis to discuss
the progress of the T-21 Program.
Article 49. Development of Indonesian Industry
The Parties agree to support the development of the Indonesian
telecommunications industry and to maximise the benefit of the T-21 Program to
local industry. In additional to providing economic benefit through maximising
local procurement, TELKOM and PARTNER have agreed on other steps that they will
take together, including setting up educational or training centres, and working
with TELKOM to develop business models to promote new local business
opportunities arising out of the deployment of T.21 Program technologies such as
new CDMA content development. PARTNER has also agreed to consider supplying CDMA
20001x test bed systems and trainers to the planned educational or training
centers for CDMA 20001x, ED-DO/-DV and other CDMA Technology training of TELKOM
and other Project staff. The Parties agree to discuss the technical and
financial aspects of such joint actions and within ninety (90) days after the
effective date of this Agreement, agree on an implementation plan for
development of the Indonesian telecommunication industry in accordance with
PARTNER's commitments in its response to the RfP.
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CHAPTER 5. TECHNICAL PROVISIONS
Article 50. General Requirement for Equipment
50.1 All equipment supplied by PARTNER to TELKOM shall:
50.1.1 meet the agreed requirements in Appendix 5 (Technical Specifications);
50.1.2 function in accordance with the technical documentation in the
Technical Specifications;
50.1.3 have obtained type approval from DGPT and met TELKOM's quality
assurance standards.
50.1.4 at delivery meet the requirements prescribed by or pursuant to the
applicable laws, rules, regulations, guidelines, and standards of all
applicable jurisdictions;
50.1.5 conform to the Technical Specifications and be free of material,
production, construction and design faults;
50.1.6 be manufactured from new and sound material;
50.1.7 at a minimum comply with the MTBF (Mean-Time-Between-Failures) values
submitted by PARTNER and as updated from time to time;
50.1.8 be packed adequately; and
50.1.9 be accompanied by the agreed upon Documentation in English.
50.2 Until Commissioning of the relevant equipment, software and components
in any Purchase Order in which software is included, software delivered
by PARTNER shall not contain viruses or any improper additions or
modifications. "Viruses" includes time bombs, worms, 'trojan horses',
drop dead devices, back door devices or any other components, which may
fully or partly affect the
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intended functioning of the software. "Additions and modifications"
mean software components which modify the functionality in a different
way from that set forth in the applicable specifications. PARTNER shall
not be entitled to activate a virus to the detriment of TELKOM. If
PARTNER detects a virus or addition/modification or symptoms of a virus
prior to Commissioning and during the SLA period, it shall immediately
inform TELKOM and undertake its best efforts to eliminate the virus or
the addition/modification and prevent damage for TELKOM at no charge.
Article 51. Quality Assurance
51.1 PARTNER shall make all reasonable efforts to ensure that TELKOM at its
discretion, is entitled to inspect and/or audit the development,
production and installation phases of the processes of all members of
PARTNER's consortium and its sub-contractors. PARTNER shall cooperate
with TELKOM in case TELKOM elects at its expense to conduct such
inspections and/or audits.
51.2 PARTNER shall make a final inspection of all Deliverables prior to
delivery to TELKOM and a report containing the results of the final
inspection shall be supplied to TELKOM on delivery.
51.3 If and in so far as any equipment or a component thereof is produced by
a sub-contractor working for PARTNER, PARTNER shall include similar
provisions in its contract with the sub-contractor in order to enable
TELKOM to perform inspections of a similar nature.
Article 52. Survey, Design, and Planning
52.1 The planning and design activities for the Project must be able to
fully accommodate the JPS, DRM and monthly meeting mechanism described
in Article 26 and the flexible procurement mechanism as described in
Article 27 of
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this Agreement.
52.2 The planning and design works shall consist of the following
activities:
52.2.1 Survey of the Location/Site(s)
PARTNER shall determine the optimum Location/Site for installation of
the equipment, provided that the optimum Location/Site should
preferably be in the premises of TELKOM or its subsidiaries in order to
ease network integration and maintenance.
52.2.2 Maximizing use of existing infrastructure
Based on the information acquired during site surveys and data provided
by TELKOM, PARTNER will be required to maximize and optimize all
reusable infrastructure and incorporate it into the equipment
requirements. The underlying objective shall be to maximize the asset
turnover of TELKOM while ensuring that current infrastructure or future
development/ expansion will not be impacted adversely. TELKOM shall
review and agree to the list proposed by PARTNER before PARTNER may
utilize it to support network roll-out.
52.2.3 Proposing more efficient solutions
PARTNER shall propose a more efficient solution, if available, after
TELKOM's review of PARTNER initial roll-out plan. Such solution shall
highlight areas of improvement from the original plan.
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52.2.4 Network optimization planning
PARTNER will be required to conduct Network optimization planning
together with TELKOM considering both existing and future Network
requirements. Network optimization planning must be able to fully
accommodate the JPS, DRM and monthly meeting mechanism and the
flexibility procurement mechanism provided for in Articles 26 and 27,
respectively, of this Agreement. Network optimization planning shall
consist of the proposed plan and improvement of the current plan
including potential implication to the overall network performance.
Network optimization planning shall take into account the following
technical aspects:
(a) ease of maintenance/operation;
(b) network reliability (diversity to important subscriber);
(c) flexibility to demand fluctuation (capacity and features);
(d) expandability of the Network;
(e) ease of construction and integration; and
(f) interoperability.
Article 53. Site Preparation, Acquisition, Rights of Way and Permits
53.1 The Parties shall be responsible for preparing the Locations/Sites
where the Deliverables are to be installed in accordance with Appendix
3 (Scope of Work). For the avoidance of doubt the Scope of Work does
not include site acquisition and preparation for NSS equipment.
53.2 PARTNER shall perform all necessary tasks to ensure Location/Site
preparation for Network roll-out in coordination with TELKOM, as
follows:
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53.2.1 arrange and acquire all the permits required to perform the work, such
as (but not limited to) installation permits, rights of way, and other
permits necessary either from local municipality or other parties. The
cost for acquiring the permit are included in the unit price and shall
not be priced separately;
53.2.2 acquire the right of use of land on a rental basis, subsequent to
TELKOM's approval to install towers for mounting the antennas or for
other needs relating to the Project;
53.2.3 conduct the land acquisition process, in the event rental is not
possible, subsequent to TELKOM's approval to install towers for
mounting the antennas or for other needs relating with the Project.
TELKOM shall provide and procure that its subsidiaries provide all
reasonable assistance to PARTNER where the land is under their control.
The cost associated with the land acquisition process (but not the cost
of the land, rental and lease fee itself) shall be borne by the
PARTNER. The cost of the land itself shall be agreed in advance with
TELKOM (such agreement not to be unreasonably withheld or delayed).
TELKOM shall make full payment to PARTNER for the cost of the land,
rental or lease promptly upon acquiring legal title to the land (as
evidenced by the executed sale and purchase of land deed) or upon
execution of the applicable rental or lease contract.
53.3 PARTNER shall arrange and acquire a frequency license from Directorate
General of Post and Telecommunication (DGPT) on behalf of TELKOM.
TELKOM will assist PARTNER by issuing the appropriate cover letter to
DGPT. For the avoidance of doubt, PARTNER shall not own the license,
but will simply support TELKOM by providing technical assistance and
consulting services (which are included in the unit prices). The cost
associated with the frequency acquisition process (but not the cost of
the license itself) shall be borne by PARTNER. TELKOM shall make full
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payment to PARTNER for the cost of the license itself promptly upon
TELKOM's receipt of the license.
Article 54. Installation Procedures and Standards
54.1 PARTNER shall provide all services to ensure proper installation of all
equipment, provide optimal operating conditions and maximize its long
term viability. PARTNER shall must provide all tools and equipment
necessary to install and commission their equipment.
PARTNER shall provide equipment installation services that shall
consist of the following activities:
54.1.1 provision of materials, labor, equipment, tools and machinery for
installation;
54.1.2 materials delivery and storage;
54.1.3 transportation of goods;
54.1.4 installation of the equipment;
54.1.5 cleaning-up sites; and
54.1.6 site preparation plan and drawings.
54.2 Provision of materials, labor, equipment, tools and machinery for
installation shall consist of the following activities:
54.2.1 PARTNER's contractor shall provide all materials, labor, tools,
transportation, telecommunication facilities (telephone, facsimile,
etc.) and everything else necessary for completion of work in
accordance with this Agreement;
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54.2.2 PARTNER's contractor shall employ an adequate supervisory force and an
adequate staff of experienced engineers, technicians and workmen to
complete the work in a satisfactory and xxxxxxx like manner within the
time specified in this Agreement;
54.2.3 with the cooperation of TELKOM staff, all work at each Location/Site
shall be carried out in such a manner as to minimize any obstructions
to the operation of TELKOM's staff at site;
54.2.4 PARTNER's contractor shall itemize and provide all equipment, tools,
measuring equipment, machinery and electricity necessary for execution
of the Scope of Work in Indonesia; and
54.2.5 PARTNER's contractor shall provide a list of equipment, tools,
measuring equipment, machinery and electricity which is used for
installation purpose only.
54.3 Installation of the equipment shall consist of the following
activities:
54.3.1 PARTNER's contractor shall be responsible for providing connection and
integrating sub-components into system units, i.e. NSS and BSS;
54.3.2 PARTNER's contractor shall be responsible for system unit check and
shall ensure the each system units functions as required.
54.4 Cleaning-up at each Location/Site shall be conducted during
installation periods and consist of the following activities:
54.4.1 PARTNER's contractor shall keep the work and storage areas clean and
tidy and shall remove daily all combustible rubbish from inside and
near the buildings, structures and plant;
54.4.2 upon completion of each installation, PARTNER's contractor shall remove
from the Location/Site as early as possible all
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tools, appliances, packing cases and plant not constituting an integral
part of this Agreement.
54.5 PARTNER's contractor shall either remove or level as required by
TELKOM's Project Manager, all excess earth or spoils resulting from any
excavation.
54.6 PARTNER's contractor shall make good to the satisfaction of TELKOM's
Project Manager at his own expense, all damages to buildings, plants,
finishes, etc., caused by contractor, his subcontractor(s) and/or their
employees.
Article 55. Testing and Commissioning
55.1 NSS Pre-Commissioning Activities
55.1.1 The testing and commissioning activities contained in this Article
shall be read in conjunction with Appendix 17 (Quality Assurance
Guidelines/Acceptance Testing Procedures). Prior to PARTNER's personnel
being dispatched to a Location where the NSS is being installed,
PARTNER shall cause its sub-contractor to provide to PARTNER and
TELKOM a completed "Location/Site Readiness Checklist*. The completed
checklist shall be verified and signed off by PARTNER's designated
representative assigned to the wireless network in which the work is
being performed. Upon the successful completion of the Location/Site
Readiness Checklist the Location/Site will be declared "Location/Site
Ready".
55.1.2 Once the Location/Site is declared "Location/Site Ready", PARTNER will:
(a) provide a Commissioning team to execute the PARTNER's Own
Tests and the Commissioning tests after obtaining approval
from PARTNER's sub-contractor, who shall be notified
reasonably in advance of the commencement of Commissioning and
invited to send qualified personnel to witness the MSC
Commissioning;
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(b) provide all tools and test equipment required to Commission
the MSC;
(c) scan the bar code on all field replaceable MSC units and
organise the data for the purposes on maintaining site
specific historical information;
(d) test all E1 interconnects including backhaul straight span,
drop and insert tests; and
(e) test electrical (AC) power availability at the place where the
MSC is located.
55.2 BTS Pre-Commissioning Activities
55.2.1 Prior to PARTNER's personnel being dispatched to a Location/Site where
the BTS is being installed, PARTNER shall cause its sub-contractor to
provide to PARTNER and TELKOM a completed Location/Site Readiness
Checklist. The completed checklist shall be verified and signed off by
PARTNER's designated representative assigned to the wireless network in
which the work is being performed. Upon the successful completion of
the Location/Site Readiness Checklist the Location/Site will be
declared "Location/Site Ready".
55.2.2 Once the Location/Site is declared "Location/Site Ready", PARTNER
shall:
(a) provide a Commissioning team to execute the PARTNER's Own
Tests and the Commissioning tests after obtaining approval
from PARTNER's sub-contractor, who shall be notified
reasonably in advance of the commencement of Commissioning;
(b) provide all tools and test equipment (including handsets in
sufficient numbers) required to Commission the Cell Site
Cabinet/Carrier;
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(c) install and connect all batteries and circuit packs delivered
to the relevant Location/Site]
(d) provide, place and terminate all RF cables from (i) the BTS to
the antenna cables(s)/ feeder cables brought to BTS equipment
room by PARTNER's sub-contractor and (ii) from the BTS to the
GPS, including all clamps, connectors, etc; and
(e) install all required amplifiers and other elements as
necessary for adding carriers to an existing BTS Cabinet.
55.3 BSC Pre-Commissioning Activities
55.3.1 Prior to PARTNER's personnel being dispatched to a Location where the
BSC is being installed, PARTNER shall cause its sub-contractor to
provide to PARTNER and TELKOM a completed Location/Site Readiness
Checklist. The completed checklist shall be verified and signed off by
PARTNER's designated representative assigned to the wireless network in
which the work is being performed. Upon the successful completion of
the Location/Site Readiness Checklist the Location will be declared
"Location/Site Ready".
55.3.2 Once the Location is declared "Location/Site Ready", PARTNER shall:
(a) provide a Commissioning team to execute the PARTNER's Own
Tests and the Commissioning tests after obtaining approval
from PARTNER's sub-contractor, who shall be notified
reasonably in advance of the commencement of Commissioning;
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(b) provide all tools and test equipment (including handsets in
sufficient numbers) required to Commission the Cell Site
Cabinet/Carrier;
(c) provide, place and terminate all the cables from:
(i) Tx equipment
(ii) MSC
(iii) PDSN
(iv) other BSCs, including all clamps, connectors, etc.
55.4 Testing and Equipment Certification
55.4.1 PARTNER shall be required to perform and facilitate system tests for
all equipment and components delivered under this Agreement.
55.4.2 The Commissioning tests shall comprise of the Sub-system Acceptance
Tests and the Integrated System Acceptance Tests. A summary of the
testing, commissioning and certification conditions are summarized in
the table provided below:
NAME OF TEST CERTIFICATE CONDITION FOR CERTIFICATION
----------------------------------------------------------------------------------------------------------------
Factory Performance Test No certification issued, but TELKOM should have None
access to the results of the test
----------------------------------------------------------------------------------------------------------------
Goods Delivery Test Goods Delivery Certificate Passes visual inspection.
----------------------------------------------------------------------------------------------------------------
PARTNER Own Test No certification issued, but TELKOM should be None
provided with the results of the test prior to
the Sub-system Acceptance Test.
----------------------------------------------------------------------------------------------------------------
Sub-System Acceptance Test No certification issued, but TELKOM
should be provided with the results
of the test prior to the Integrated
System Acceptance Test.
----------------------------------------------------------------------------------------------------------------
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NAME OF TEST CERTIFICATE CONDITION FOR CERTIFICATION
------------------------------------------------------------------------------------------------------------------
Integrated System Acceptance Test Partial Integrated System Acceptance Test A system test has been
Certificate completed for the equipment,
satisfying all relevant
requirements under this
Agreement except for end to
end connectivity
----------------------------------------------------------------------------
Integrated System Acceptance Test All system tests have been
Certificate completed for the equipment,
satisfying all relevant
requirements, including end to
end connectivity
------------------------------------------------------------------------------------------------------------------
Civil Work Acceptance Test Certificate (for foundation) Passed third party and/or
Certificate (for tower) TELKOM quality checks
Certificate (others)
------------------------------------------------------------------------------------------------------------------
55.5 Factory Performance Test
55.5.1 PARTNER shall perform factory performance tests of all equipment to be
deployed to ensure that the equipment is complete in all respects and
complies with the terms of the Agreement. Details of the factory
performance test are set out in Appendix 16.
55.5.2 PARTNER shall provide TELKOM with full access to the results of the
factory performance tests including without limitation evidence in the
form of certification letter provided by the factory.
55.5.3 Successful completion of the factory acceptance tests are a
pre-requisite for Sub-System Acceptance Tests.
55.6 Goods Delivery Test
55.6.1 TELKOM shall visually inspect the equipment on delivery to the
installation Location/Site based on a copy of the goods shipping
documents and TELKOM's Project Manager shall promptly (and no later
than five (5) Business Days) issue a Goods Delivery
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Certificate if there is no obvious physical damage to the equipment and
the quantity of equipment delivered is correct according to the
supporting Documentation provided.
55.6.2 Issue of a Goods Delivery Certificate shall not constitute acceptance
of the equipment nor shall it affect TELKOM's rights under this
Agreement.
55.7 PARTNER Own Test
55.7.1 PARTNER shall perform on-Location/Site tests of each individual Network
Sub-system (BSS and/or NSS) following installation.
55.7.2 Successful completion of PARTNER's Own Tests are a pre-requisite for
Sub-system Acceptance Tests.
55.7.3 The tests for NSS shall comprise of tests to determine the overall
equipment functionality of:
(a) Mobile Switching Center (MSC) and Visitor Location Register
(VLR);
(b) Home Location Register (HLR);
(c) Authentication Center (AC);
(c) Interworking Function (IWF);
(d) Wireless Intelligent Network (WIN);
(e) Short Message Service Center (SMSC);
(f) WAP Gateway and Server;
(g) Voice Mail System (VMS);
(h) NSS Network Element Manager (NSS NEM).
55.7.4 The tests for BSS shall comprise of tests to determine the overall
equipment functionality of:
(a) Base Station Controller (BSC);
(b) Base Transceiver System (BTS);
(c) Antenna;
(d) Transmission Equipment;
(e) BSS Network Element Manager (BSS NEM).
55.7.5 The tests for PDN shall comprise of tests to determine the overall
equipment functionality of:
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(a) Packet Data Serving Node (PDSN) device;
(b) Authentication, Authorization and Accounting (AAA);
(c) Home Agent (HA);
(d) Directory Number System (DNS);
(e) Fire Wall;
(f) PDN Network Element Manager (PDN NEM).
55.7.6 PARTNER shall provide TELKOM with the results of PARTNER's Own Tests
when it requests TELKOM to attend the Commissioning.
55.8 Commissioning: Sub-System Acceptance Test
55.8.1 Upon completion of PARTNER Own Tests, PARTNER shall conduct tests of
each individual Sub-system in the presence of TELKOM as a witness.
55.8.2 The tests shall be conducted during normal weekday working hours and
PARTNER shall liaise with TELKOM at least fourteen (14) calendar days
before the proposed test date to fix the timing and resources required
for the test. PARTNER shall co-ordinate the test dates across the
relevant DIVRE to ensure that the tests are scheduled efficiently.
55.8.3 Successful completion of the Sub-system Acceptance Tests are a
pre-requisite for Integrated System Acceptance Tests.
55.8.4 The tests for NSS shall comprise of tests to verify the overall
functionality of:
(a) Mobile Switching Center (MSC) (and Visitor Location Register
(VLR));
(b) Home Location Register (HLR);
(c) Authentication Center (AC);
(d) Interworking Function (IWF);
(e) Wireless Intelligent Network (WIN);
(f) Short Message Service Center (SMSC);
(g) WAP Gateway and Server;
(h) Voice Mail System (VMS);
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(i) NSS Network Element Manager (NSS NEM).
55.8.5 The tests for BSS shall comprise all tests necessary to verify the
overall equipment functionality of:
(a) Base Station Controller (BSC);
(b) Base Transceiver System (BTS);
(c) Antenna;
(d) Transmission Equipment;
(e) BSS Network Element Manager (BSS NEM).
55.8.6 The tests for PDN shall comprise tests to verify the overall equipment
functionality of:
(a) Packet Data Serving Node (PDSN);
(b) Authentication, Authorization and Accounting (AAA);
(c) Home Agent (HA);
(d) Directory Number System (DNS);
(e) Fire Wall;
(f) PDN Network Element Manager (PDN NEM).
55.8.7 In addition the following on-Location tests shall be conducted for each
Sub-system:
(a) Mechanical, quantity and appearance checks;
(b) Workmanship checks;
(c) Construction, installation, cabling, wiring, fixing, equipment
foundation, painting and galvanizing, appearance and
mechanical strength and labeling checks;
(d) Meter and Alarm Indication check;
(e) Power supply checks;
(f) Losses contact checks.
55.8.8 PARTNER shall provide TELKOM with full access to the results of any
Sub-system Acceptance Tests before initiating any Integrated System
Acceptance Tests.
55.9 Commissioning: Integrated System Acceptance Test
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55.9.1 PARTNER shall conduct Integrated System Acceptance Tests in the
presence of TELKOM as a witness upon completion of the Sub-system
Acceptance Tests (including tests on measuring equipment and spare
parts) to ensure that a System is functioning as designed and ready for
acceptance by TELKOM.
55.9.2 PARTNER shall prepare a comprehensive testing plan and test procedure
for TELKOM's approval.
55.9.3 The smallest Network element that may be System tested shall be a BTS
and its associated equipment. All System tests must be carried out on a
end to end basis (i.e., PSTN to MSC to BSC to BTS to test subscribers)
to verify that:
(a) the installed system complies with the Technical
Specifications of the Agreement;
(b) the System has been demonstrated to be compatible with the
existing exchange, BSS and other Systems;
(c) the equipment is interoperable and interconnected with
existing PSTN and PLMN operational systems.
55.9.4 The tests shall be conducted during normal weekday working hours and
PARTNER shall liaise with TELKOM at least ten (10) Business Days before
the proposed test date to fix the timing and resources required for the
test. PARTNER shall co-ordinate the test dates across the relevant
DIVRE to ensure that the tests are scheduled efficiently.
55.9.5 In addition, PARTNER shall provide TELKOM with details of all
transmission links and assistance to be provided by TELKOM. TELKOM may
postpone the test date if the transmission links required cannot be
provisioned in time.
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55.9.6 TELKOM shall within ten (10) Business Days issue a Integrated System
Acceptance Test Certificate for the equipment tested once:
(a) all the relevant System tests have been successfully
completed;
(b) all required test equipment and necessary tools have been
supplied; and
(c) all handbooks, as-built drawings, inventory list and other
information necessary for maintenance of the relevant System
have been supplied.
The Integrated System Acceptance Test Certificate shall be issued on a
per Location basis. In the event that any Sub-system or Site within the
Location cannot be tested caused by any reason, a Partial Integrated
System Acceptance Test Certificate may be issued for the Location
covering only the Commissioned Sub-system(s) or Site(s).
55.9.7 In the event that TELKOM is unable to provide, where required, the
necessary transmission links and/or an E1 link at the PSTN switch to
connect the Network elements to each other, but it is shown that the
relevant System otherwise fulfils all the requirements above, TELKOM
shall issue a Partial Integrated System Acceptance Test Certificate
within ten (10) Business Days.
55.9.8 15% of the applicable Contract Value for the equipment tested shall be
payable on TELKOM's issuance of the Integrated System Acceptance Test
Certificate or Partial Integrated System Acceptance Test Certificate,
as the case may be. The applicable PAYG Payment Period shall commence
only on issuance of the relevant Integrated System Acceptance Test
Certificate.
110
55.9.9 If TELKOM offers a System for commercial service which has not yet
received an Integrated System Acceptance Test Certificate, then this
System shall be deemed to have been tested and accepted and TELKOM
shall issue the relevant Integrated System Acceptance Test Certificate
in accordance with Article 55.9.6.
55.10 Civil Work Tests
55.10.1 PARTNER shall regularly inspect all civil works in progress on a
continuous and/or interim basis, based on the civil work test plan
submitted to and agreed by TELKOM. The test plan shall include the
proposed frequency of the inspections and the test protocol to be used.
The test protocol shall be in the form of worksheets to be used on
Location/Site as the work progresses.
55.10.2 TELKOM will issue certificates at each stage of work once the civil
work tests are successfully completed based on the agreed test
protocol.
Article 56. Integration, Interoperability and Compatibility
56.1 Integration and Interconnection
56.1.1 The CDMA Network consisting of NSS and BSS shall interface with:
(a) TELKOM's PSTN via standard 2 Mbps interface (E-1) link and be
connected to external ATM/ IP data network via an Inter-
Working Function (IWF) device. Details of the NSS
interconnection requirements are set out in Appendix 5
(Technical Specifications); and
(b) TELKOM's data network via a PDSN (Packet Data Serving Node)
device as part of the PDN (Packet Data Network) supplied by
PARTNER.
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56.1.2 In particular, PARTNER shall ensure without limitation that:
(a) the NSS equipment is integrated with the existing PSTN,
TELKOM's Signalling Transfer Point (STP) for CCS #7 signalling
system, and Public Land Mobile Network (PLMN);
(b) the BSS/BSC is integrated with the NSS and PDN (Packet Data
Network) equipment; and
(c) all related Sub-systems within the NSS, BSS and PDN to be
delivered by PARTNER are integrated with each other.
56.2 Interoperability Requirement
56.2.1 The NSS equipment must be interoperable with BSS equipment from other
CDMA FWA vendors which shall be based on the IOS 4.0. The
interoperability between the NSS equipment and value added services
equipment from other vendors shall be based on IS 41D standard.
56.2.2 The BSS equipment must be interoperable with NSS equipment provided by
PARTNER and compatible with CDMA IOS 4.0 standards.
56.2.3 PARTNER shall provide TELKOM with supporting evidence in the form of a
written statement or certificate from operators, certification body, or
PARTNER stating operator's name and contact information, location,
types of NSS and BSS equipment, and examples where interoperability
occurs. TELKOM shall issue an IOP Certificate to PARTNER in accordance
with the Interoperability Commitment Agreement following successful
completion of its own interoperability (IOP) tests.
112
56.3 Compatibility
56.3.1 All new software releases or versions shall be backwards compatible
with previous releases and versions.
Article 57. Cut Over Procedures
57.1 PARTNER shall ensure that the cut over of any equipment on the Network
(for example, where a BTS is to be disconnected from an existing BSC
and reconnected to a new BSC being installed or where a BSC is to be
disconnected from an existing NSS and reconnected to a new NSS being
installed) does not interfere with the operation of the Network.
57.2 PARTNER shall liaise with TELKOM as to the procedures and timing for
the cut over and any cutover should take place during the hours of 2:00
am - 4:00 am (the "Cutover Period"), unless otherwise agreed by TELKOM.
57.3 PARTNER shall ensure that the previous connections can be
re-established without any interruption to the Network in the event
that the cutover does not work properly or perform satisfactorily. In
the event that the cutover appears unlikely to be completed during the
Cutover Period, PARTNER shall re-establish the previous connection and
re-attempt the cut over the following day.
57.4 PARTNER shall indemnify TELKOM against any loss or damage suffered as a
result of any interruption to the Network (including without limitation
any service interruption or system downtime) occurring outside the
Cutover Period caused by a cut over that results in a revenue loss for
TELKOM, in accordance with Article 11.
57.5 These Cutover procedures shall also be applicable to Package 1.
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Article 58. Compliance with Environmental Standards
58.1 The Deliverables supplied by PARTNER shall comply with all applicable
legal requirements and shall not contain any legally prohibited
substances and/or preparations. The Deliverables shall not contain any
substances and/or preparations that cannot be processed by means of a
normal waste processing method.
58.2 PARTNER shall allow TELKOM to examine its degree of environmental care
and provide reasonable assistance to TELKOM in examining that of the
manufacturers concerned.
58.3 PARTNER shall provide TELKOM with the following information early
enough to give TELKOM reasonable time to pass it on to all parties
involved before Deliverables are received:
58.3.1 which substances and/or preparations present in the equipment are
harmful to people, property or the environment, including soil, water
and air;
58.3.2 where such substances and/or preparations are located in the equipment
and how the components concerned must be treated at the end of their
useful life and at the end of the useful life of the equipment, and how
such components can be removed from the equipment safely and correctly;
58.3.3 which regulations are applicable to the transport, storage,
installation, use, dismantling and processing of the substance in
connection with the harm it is capable of causing; and
58.3.4 how to improve the information distribution/acquisition process at and
by TELKOM to a reasonable extent without raising its costs.
114
58.4 PARTNER shall state which components of the equipment are suitable for
re-use or recycling other than by incineration at the end of its useful
life. PARTNER shall retrieve the equipment from TELKOM for this purpose
or pay TELKOM an appropriate fee for waste processing/recycling.
58.5 PARTNER shall provide TELKOM with the above-mentioned information,
either via an electronic information carrier or electronically in a
commonly used computer program and in a format requested by TELKOM.
58.6 PARTNER shall warrant that all of the information provided to TELKOM is
complete and correct to the best of its knowledge.
Article 59. Development of Mediation Device
PARTNER shall at TELKOM's request develop and provide interfaces to TELKOM's
customer care, billing, NMS, VMS, SMS, MMSC, WAP and other value added services
systems. The cost of the development (save in the case of the mediation device
for the NMS as already agreed in Appendix 4) shall be agreed in advance with
TELKOM and then added to the Contract Value of the Purchase Order associated
with the equipment with which the mediation device will be used. 25% of the
development costs shall be paid on commissioning of the mediation device, and
the remaining 75% paid by TELKOM in accordance with the PAYG payment scheme for
the associated equipment.
Article 60. Documentation
60.1 PARTNER shall provide an adequate number of handbooks and drawings that
shall be required to support equipment maintenance, installation, and
test function. Handbooks and drawings shall include assembly drawings,
wiring information, schematics, drawings, circuit diagrams/descriptions
and complete instruction for familiarization, installation, operation,
theory, maintenance, and parts replacements, as well as appropriate
system drawings. Instruction handbooks for each piece of equipment
shall be prepared separately, and
115
submitted to TELKOM. Instruction handbooks to be supplied shall include
but not be limited to the following:
60.1.1 Installation and system handbooks;
60.1.2 Equipment handbook including Standard Operating Procedure (SOP) and
Standard Maintenance Procedure (SMP);
60.1.3 Repair handbooks including circuit diagrams;
60.1.4 Customer handbooks for the fixed terminal shall include assembly
drawings, wiring information, and complete instruction for
familiarization, installation, maintenance, and parts replacement;
60.1.5 Customer handbooks for the mobile handset shall include only complete
instruction for familiarization, maintenance and part replacement. All
handbooks shall be prepared in English and the metric system of weights
and measures should be used.
60.2 PARTNER shall maintain and keep updated a Project library in Indonesia
containing all relevant documents related to the Project, including
without limitation, minutes of each JPS, DRM and-monthly meeting, all
Purchase Orders, demand forecasts, Change Requests, each agreed
revision of the Implementation Plan and all correspondence between
PARTNER, its sub-contractors and TELKOM. The Project library shall be
accessible by TELKOM and its representatives during normal working
hours and TELKOM may from time to time request copies of all or parts
of the Project library to be supplied to it at no further cost. The
Project library shall be handed over to TELKOM on termination of this
Agreement.
60.3 PARTNER shall submit drawings and documents (including as-buiit,
assembly, connection and allocation drawings) related to the relevant
Systems and Sub-systems installed.
116
60.4 Any drawings and documents with respect to the relevant Systems or Sub-
systems owned by PARTNER related to the relevant Deliverables shall be
kept for the life-time of such System or Sub-system to enable PARTNER
to procure any parts which need replacement and/or expansion of such
System or Sub-system if so required at any time.
60.5 Any Intellectual Property Rights with respect to any drawings,
specifications and data which are issued by the respective Parties
pursuant to the implementation of this Agreement shall remain the
property of the respective Parties in accordance with this Agreement.
60.6 Any incompleteness, doubts with respect to breakdown and/or elaboration
contemplated in any documents and/or those which constitute parts of
this Agreement shall be presented to TELKOM for clarification.
60.7 As long as PARTNER is providing maintenance and support in accordance
with this Agreement and the applicable SLA, the cost of updates to the
Documentation shall be included in the fees paid by TELKOM to PARTNER
pursuant to the relevant SLA. For ihe avoidance of doubt, the costs of
the Documentation shall be payable under general services.
60.8 All Documentation shall be in accordance with the requirements stated
in the RfP. The standard documents required to be provided by PARTNER
are listed in Appendix 22 (Documentation).
60.9 At the first JPS, PARTNER shall submit to TELKOM its plan to execute
the Location/Site survey consisting, without limitation of the
following items:
60.9.1 time schedule;
60.9.2 manpower schedule;
60.9.3 team organization.
117
60.10 TELKOM will provide a letter of approval of the detailed Location/Site
survey plan submitted by PARTNER, after it has agreed to the proposed
content. PARTNER shall perform the Location/Site survey accompanied by
TELKOM's assigned team as scheduled in the Location/Site survey plan.
60.11 PARTNER shall provide a Location/Site survey report ("Survey Report")
for installation within two (2) weeks of the Location/Site survey. The
Survey Report shall consist of the following items:
60.11.1 Location/Site layout, that shall include guide map, floor lay out and
cable racking;
60.11.2 arrangement of terminal block and existing distribution frame;
60.11.3 arrangement of the sub distribution panel;
60.11.4 availability of supporting facility and other requirements;
60.11.5 availability of antenna space at the existing tower;
60.11.6 map of the site's profile and backhaul system;
60.11.7 availability of port and link at TELKOM's exchanges; and
60.11.8 coverage map of each BTS.
60.12 PARTNER shall submit its final as-built drawings based on the Network
configuration upon completion of the installation work.
CHAPTER 6. SERVICE LEVEL AGREEMENTS
Article 61. Service Level Agreements
61.1 Operation and Maintenance Support Service Level Agreement
61.1.1 TELKOM has requested PARTNER to render certain operation and
maintenance support services, and PARTNER has agreed to provide these
services in accordance with a Service Level Agreement.
61.1.2 Prior to Commissioning of the Deliverables in the Second Purchase
Order, TELKOM and PARTNER shall
118
enter into a Service Level Agreement in form and substance as set out
in Appendix 19 to cover operation and maintenance support. The initial
term of the Service Level Agreement shall expire three (3) years from 1
January 2003 unless earlier terminated in accordance with the SLA.
CHAPTER 7. INTER-OPERABILITY AND CO-ORDINATION REQUIREMENTS FOR PACKAGE 1 AND
PACKAGE 2
Article 62. General
62.1 Subject to Article 14.2.1, this Chapter shall apply to Package 1 and
Package 2.
62.2 PARTNER acknowledges that certain Network equipment for Package 1 is
being supplied by other equipment vendor(s) and that achieving inter-
operability between each vendor's equipment is a key requirement of the
T-21 Program. In particular, TELKOM requires that the NSS
configuration be fully interoperable with BSS equipment from other CDMA
FWA vendor(s) in accordance with Article 56. The Parties recognise that
until inter-operability has been achieved, service cannot begin in the
DIVREs where more than one vendors are providing equipment. To achieve
this aim, the Parties have entered into a separate interoperability
commitment agreement with the other vendor(s) in Package 1.
62.3 In the event that the vendors are unable to achieve satisfactory
interoperability by the end of the testing period, or by the end of the
first quarter of 2003, whichever is earlier TELKOM may at its sole
discretion:
(a) extend the testing period for such period as it thinks fit and
request the vendors to continue working towards
interoperability;
119
(b) stop further testing until further notice; or
(c) notify either of the vendors or both, as the case may be, that
based on a comprehensive technical review of the cause or
causes resulting in the failure of achieving inter-operability
as contemplated in this Agreement, TELKOM intends to exercise
its right to terminate this Agreement pursuant to Article
14.2, and that TELKOM reserves its right to claim from and to
be indemnified by PARTNER for its proportionate share of
Project-related costs for which it is responsible, suffered
by TELKOM as a result of the failure of achieving
inter-operability.
62.4 Following issuance of the IOP Certificate, the Parties acknowledge that
certain additional modifications are required to this Agreement to
allow inputs from each vendor at the JPS and DRMs and that they will
deal expeditiously with any delays caused by one or more vendors which
affect the other vendors.
Article 63. JPS, DRMs and monthly meetings
63.1 At each JPS:
63.1.1 the demand forecasting and economic analysis shall be conducted by the
vendor of the BSS equipment and TELKOM jointly, with the vendor of the
NSS equipment providing comments only;
63.1.2 the prioritisation of Locations/Sites for network deployment of the BSS
equipment shall first be conducted by the vendor of the BSS equipment
and TELKOM jointly. The prioritisation of
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Locations for Network deployment of the NSS equipment shall follow on
and be conducted by the vendor of the NSS equipment and TELKOM jointly;
and
63.1.3 the technology review shall be conducted by all vendors and TELKOM
jointly.
63.2 At each DRM:
63.2.1 each vendor shall be responsible for surveying their own deployment
sites;
63.2.2 TELKOM and the vendor of the BSS equipment shall jointly calculate,
check and update the Installed Line Procurements, with the vendor of
the NSS equipment providing comments only;
63.2.3 the Deployment Plan for the BSS equipment for the next Quarter shall
first be jointly developed, agreed and approved by the vendor of the
BSS equipment and TELKOM; then the Deployment Plan for the NSS
equipment for the next Quarter shall be jointly developed, agreed and
approved by the vendor of the NSS equipment and TELKOM;
63.2.4 TELKOM and each vendor shall develop, agree and approve their
respective detailed network designs, BoQ, resource plans and training
plans;
63.2.5 TELKOM and the vendors shall jointly discuss any changes which may be
required to the Project Management Plans and Implementation Schedule,
and in particular shall provide information on any potential delays or
other matters which could affect the other vendor(s) or the overall
deployment of the Network. TELKOM and each vendor shall then jointly
agree and approve any adjustments to their respective plans and
schedules taking into account the information provided by the other
vendor(s).
121
63.3 TELKOM may from time to time request the vendors to attend together the
monthly meetings to allow information sharing and joint discussions to
take place.
Article 64. Commissioning Tests
64.1 The Parties acknowledge that in order to test the Network end to end,
each Network component (MSC, BSC and BTS) must be interconnected and be
available for testing during the period scheduled for the Integrated
System Acceptance Tests.
64.2 The Integrated System Acceptance Tests shall be conducted during normal
weekday working hours and PARTNER seeking to test its equipment shall
co-ordinate with TELKOM and the other vendor(s) at least fourteen (14)
calendar days before the proposed test date to fix the timing and
resources required for the test. PARTNER shall co-ordinate the test
dates across the relevant DIVRE to ensure that the tests are scheduled
efficiently.
64.3 Each vendor shall upon receipt of the notice promptly inform TELKOM and
the other vendor(s) whether its equipment has completed the required
Sub-system Acceptance Tests, and if not when such tests are scheduled
for and if it expects any delay to its agreed completion dates.
64.4 TELKOM may reschedule the proposed test date by up to one (1) month to
address any delays which are attributable to other vendors. In the
event that the other vendor's equipment is still not available for
testing after the one month grace period, but it is shown that the
vendor's system otherwise fulfils all the Integrated System Acceptance
Test requirements, TELKOM shall issue a Partial Integrated System
Acceptance Test Certificate to the vendor.
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64.5 For the avoidance of doubt, the testing and Commissioning procedures
for Package 1 are provided in Article 55.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their
duly authorized representatives on the day and year first above written.
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
BY /s/ Kristiono
-------------
Name : Kristiono
Title : President Director
SAMSUNG CONSORTIUM
SAMSUNG ELECTRONIC CO., LTD.
[STAMP]
By:/s/ Soon Ho Hong
----------------
Name : Soon Ho Hong
Title: Senior Vice President &
General Manager
Telecommunication Systems
Division
PT MITRAGUNA INTIKOM
By: /s/ Budi F. Japadermawan
------------------------
Name : Budi F. Japadermawan
Title: Director
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