Contract for Phase I of Software Development and System Integration of Production Dispatching and Command Center of China Netcom
(English
Translation)
Exhibit
10.5
Contract
for Phase I of Software Development and System Integration of Production
Dispatching and Command Center of China Netcom
Jan
20,
2005
Name
of Contract: Contract
for Phase I Project of Software Development & System Integration of
Production Control Center of China Netcom
Party
A: Beijing
Zhongzheng Real-estate Development Co., Ltd.
Signing
Place: Financial
Street, Xicheng District, Beijing City
In
accordance with the provisions of Contract
Law of the People's Republic of China
and
other related laws of the country, upon the equal negotiation, both parties
sign
and enter into the terms and conditions of the Contract, which prescribe all
related affairs that Party B shall undertake relating to the construction of
Contract
for Phase I Project of Software Development & System Integration of
Production Control Center of China Netcom
(hereinafter referred to as “the Project”), and detailed contents related to
both parties’ responsibilities, rights and abilities, etc. Both Parties promise
to carry out representative responsibilities, rights and duties in accordance
with provisions of the Contract, which consists of the following terms and
conditions:
| 1. |
Definitions
for Key Nouns and Glossary
|
| 1.1 |
The
nouns and glossary of the Contract shall be interpreted as
follows:
|
“Contract”
refers to the agreement(s) signed and entered into between both parties, such
agreement(s) including all annexes, appendixes, supplementary documents and
all
documents that consist the Contract specified in the foresaid clause;
“Contract
Price” refers to the amount that Party A shall pay Party B after Party B
completely and appropriately implements the specified duties under the
Contract;
“Terms
and Conditions of Contract” refer to terms and conditions of the
Contract;
“Project”
refers to “Contract for Phase I Project of Software Development & System
Integration of Production Control Center of China Netcom”
“Project
under the Contract” refers to the Project under which Party B must provide Party
A with all products, software for system, services and other technical data
in
accordance with the Contract;
“Works”
refers to the scope covered in Clause 3;
“Hardware”
refers to all articles related to system integration including equipments,
materials and spare parts that Party B must provide Party A in accordance with
the Contract;
“Software”
refers to all software related to the Project (including system software and
applications of system related to system integration) that Party B must provide
Party A in accordance with the Contract, and all relative duties that Party
B
shall undertake in accordance with the Contract including
system design, installation, debugging, and provision of service, etc, as
well;
“Confirmation”
refer to that both parties confirm in written and accept the proposal, report,
notice and other written documents submitted by the other
party;
“Acceptance”
refers to that Party A, as per specified procedures and conditions, confirms
that subject matter provided by Party B in accordance with the Contract meets
the requirements of specifications, and confirm it is correctly
provided;
“Services”
refer to relative services that Party B shall provide in accordance with the
Contract, including transportation, insurance, installation, integration,
(development of) software, debugging, training, technical support, maintenance
& repairing, and other necessary works keeping goods going well and meeting
the requirements of the bidding document;
“Products”
in Sub-clause 7.1 refer to system hardware, system software, applications,
system integration and other services, etc;
“Project
Site” refers to the site for installation and operation of all items specified
in Material List of the Contract under the Contract;
“Day”
refers to the number of calendar day.
| 1.2 |
Meanings
of Other Contents and Phrases in the
Contract:
|
| 1.2.1 |
The
titles and index in the Contract don’t involve interpretation to contents
of the Contract, and don’t influence the efficiency of terms and
conditions of the Contract;
|
| 1.2.2 |
Annotations
(notes) in all documents must be modified according to such
documents;
|
| 1.2.3 |
“Include”
, “including” also has the meaning of “ is not limited to” or “ without
limitation to”, etc;
|
| 1.2.4 |
“Etc”
also has the meaning of “and so
on”.
|
| 2. |
Substance
of the Contract
|
| 2.1 |
In
accordance with the requirements of assignment in Party A’s bidding
document, on the basis of Phase I Project, and based on completion
of
construction of informationization system, further achieve the objective
of consummating informationization management and system integration
of
the system.
|
| 2.2 |
Scope
of the Contract: design, installation and debugging, etc of system
management application module, including platform for system hardware
and
software, management platform of applications, system integration,
debugging, combined adjustment, training, technical support, after-sale
service, etc.
|
| 3. |
Party
A’s Responsibilities
|
| 3.1 |
Confirmation
of proposal for project implementation submitted by Party
B;
|
| 3.2 |
Provide
Party B with site working place and related office
equipments;
|
| 3.3 |
Under
the instructions of Party B, Party A assigns personnel to assist
Party B
with such works as fitment of machine room, installation of equipments,
etc;
|
| 3.4 |
Under
the instructions of Party B, Party A assigns personnel to assist
Party B
with works relating to installation of
equipments;
|
| 3.5 |
Cooperate
with Party B for demand investigation, bring forward requirements
of
system meeting implementation requirements of the Project, and confirm
the
result of demand investigation submitted by Party
B;
|
| 3.6 |
Cooperate
with Party B for data collection and data input, and provide data
that
Party A shall submit in the agreed form;
|
| 3.7 |
During
implementation of the Project, in accordance with other cooperation
requirements that Party B required, under the precondition of not
substituting or lessening Party B’s responsibilities, assist or provide
support to Party B’s works;
|
| 3.8 |
Organize
a third party as an independent acceptance team to carry out independent
test against the Project implemented by Party
B;
|
| 3.9 |
Organize
the acceptance of project and relative documents of project submitted
by
Party B;
|
| 3.10 |
When
working schedule and performance of Party B meet the requirements
of the
Contract, pay Party B in accordance with payment methods and payment
schedule specified in the
Contract.
|
| 4. |
Party
B’s Responsibilities
|
| 4.1 |
General
responsibilities: as implementation unit of the Project and services
listed in the Contract, undertaking full responsibilities for
implementation of all contents covered in the Project, plan for quality
and construction of project, coordination of schedule and technology,
and
services during the warranty period;
|
| 4.2 |
Liability
for the Project
|
Fulfill
the content of the Project specified in Clause 3 (see annex for
detail);
| 4.3 |
Other
Liabilities
|
| 4.4 |
Undertake
the following liabilities against the personnel assigned for the
Project:
|
| (1) |
guarantee
enough the personnel participating in the Project, and the matching
of
manpower input in each phase and the demands of such
phase;
|
| (2) |
guarantee
the personnel participating in the Project has enough experience,
specialized knowledge and the ability to fulfill the relevant
tasks;
|
| (3) |
guarantee
the personnel participating in the Project may start up the work
in
accordance with demands;
|
| (4) |
guarantee
the stability of the personnel participating in the Project, and
the
personnel listed in Annex 7 may not be changed without Party A’s written
content;
|
| (5) |
should
Party A, upon enough and reasonable reasons, point out the lack of
abilities of Party B’s project team in manpower, experience, qualification
and other aspects, its unfitness for the Project, and bring forward
the
requirements against Party B, Party B shall take appropriate measures
to
strengthen the power of the team;
|
| (6) |
should
Party A, upon enough and reasonable reasons, point out the disability
and
unfitness of the personnel sent by Party B for the Project for carrying
out its duties, and bring forward the requirements against Party
B, Party
B shall replace with more suitable
personnel.
|
4.3.2
guarantee the reasonable combination and easy operation of arranged project
plan, schedule(Annex 7), and sub-phase works;
4.3.3
guarantee that, during implementation of the entire project, all works related
to the use of Party A’s data shall be done on Party A’s site, and no electric
maps or data may be brought out the site;
4.3.4
guarantee to provide Party A with work results of each phase in accordance
with
the Contract;
4.3.5
guarantee to carry out confidential related responsibility in accordance with
the Contract;
4.3.6
guarantee to carry out timely and efficient coordination and communication
with
Party A and the third party testing personnel specified by Party A;
4.3.7
guarantee that, during working on Party A’s site, it shall comply with Party A’s
regulations and systems, and obey the management of Party A and property
company;
4.4
correlative duties: due to the importance and difficulty of the Project,
detailed or full description and interpretation against full meanings of the
services Party B shall provide Party A may not be possible given totally in
the
Contract, and therefore, foresaid services requiring Party B to provide are
deemed a general description and interpretation, and all service contents and
other service and assistance relating to such service contents Party B shall
provide Party A shall be indiscerptible to its duties, excepting for additional
services that Party A requires Party B to provide;
4.5
Taxation: all taxes arising out of the Contract in accordance taxation related
laws shall be borne by Party B;
4.6
Any
of the following items shall not except, lessen, limit, or influence Party
B’s
responsibilities or duties covered in the Contract;
(1)
any
advice or suggestion authorized, consented or approved by Party A or Party
A’s
representative;
(2)
any
advice or suggestion made by any other organization or personnel retained by
Party A or Party A’s representative;
(3)
any
matter implemented or requirement and direction brought forward by Party A
or
Party A’s representative;
(4)
any
document, data or material provided by Party A or Party A’s
representative;
(5)
any
document, data or material received, accepted or recognized by Party
A;
(6)
any
payment Party A paid Party B in accordance with the Contract;
(7)
any
omission, negligence, irresponsible action or other behavior due to product
suppliers.
Representatives
of Both Parties
| 4.5 |
Party
B’s project manager and specialized representatives of project team
shall
be listed in Annex 7, and Party B shall inform Party A in written
the
corresponding titles, rights and
assignments;
|
| 4.6 |
In
accordance with specialized representatives (or supervisor) of project
team of Party B, Party A shall also give out personnel composition
and the
relative titles and rights of “Party A’s representatives” in
written;
|
| 4.7 |
When
a written notice or opinion which requires the other party to carry
out
substantial response is given by either party, signature of authorized
representative who got the right to sign for such paper is deemed
effective;
|
| 4.8 |
Representatives
of both parties must be clearly aware of the scope of titles and
rights of
the other party, and if any unclearness or doubt appears, it shall
question the other party at once; any overstepping of authority from
the
other representative found, may ask for
clarification.
|
| 5. |
Documental
data and work standard
|
| 5.1 |
for
such documents related to contracted equipments and design, development,
installation, integration, debugging, testing, and acceptance, etc
covered
in the Project (incl. drawing, all written description, standard,
and all
kinds of software) and technical documents for network normal operation
and maintenance, Party B shall provide in the form of
CD-ROM;
|
| 5.2 |
During
implementation of the Project and before acceptance of project, both
parties shall give the requirements for documents and materials(see
Annex
9 for detail);
|
| 5.3 |
The
products provided by Party B shall comply with the standards specified
in
the Contract and Technical Specifications, and should any conflict
appear
between the Contract and Technical Specifications, other written
confirmation from Party A shall prevail; should none of foresaid
documents
involve applicable standard, the latest standard enacted by national
related organ shall prevail;
|
| 5.4 |
Standard
for unit of measure: unless specified in Technical Specifications,
unit of
measure shall comply with legal unit specified in accordance with
the law
of the People’s Republic of China;
|
| 5.5 |
To
guarantee the standardization of implementation of the Project, only
technical document and annex with signatures of both parties’ shall be
binding to both parties.
|
| 5.6 |
Party
B guarantees the legality of all phases during the construction of
project, and the strict abidance of state current laws, and should
any
illegal condition happen, Party A is exempted from any loss or
damage.
|
| 6. |
Integration
and Installation
|
| 6.1 |
Before
implementation of the Project, Party B shall, in accordance with
its
bidding commitment, prepare detailed schedule for construction &
organization, and submit for Party A’s
approval;
|
| 6.2 |
Party
B is responsible for the installation, integration, debugging, trial
operation and service of all contracted
equipments;
|
| 6.3 |
Party
B is responsible for safely transporting all equipments necessary
to the
Project to installation site without any quality damage, including
all
fees and expenditures relating to transportation of equipments necessary
to Phase I Project, installation and integration, and any compensation
for
loss or damage;
|
Party
A
has the right to require Party B to change the personnel for equipment
installation, debugging and software development who are deemed
unqualified.
| 6.4 |
During
integration period, Party A’s personnel shall attend the works under Party
B’s permission and instruction. Should any modification appear, Party
B
shall provide all modified technical document free of
charge.
|
| 7. |
Evaluation,
testing, acceptance and
take-over
|
| 7.1 |
Evaluation
of Works
|
| 7.1.1 |
During
implementation of project, based on demands of each phase, in accordance
with agreed methods, evaluating personnel assigned by Party A shall
conduct evaluation against sub-phase result of Party B’s works, and
materials necessary to evaluation shall be prepared by Party
B;
|
| 7.1.2 |
Evaluation
must bring forward written opinion, which shall be given to Party
B as
evidence for modification phase of the
Project;
|
| 7.1.3 |
Should
Party B think Party A’s opinion from evaluation is unfit or infeasible, it
may submit a written application for re-evaluation with reasons,
and any
modification negotiated shall be
applicable;
|
| 7.1.4 |
Evaluation
of works is deemed the important reference of acceptance of system,
however, it may not substitute the acceptance of system; when any
conflict
appears between evaluation and acceptance, acceptance shall
prevail;
|
| 7.2 |
Test
|
| 7.2.1 |
Test
shall be independently carried out by a third party testing unit
entrusted
by Party A on project implementation
site;
|
| 7.2.2 |
Before
Party B submit the system to Party A for testing, it shall carry
out self
testing in advance in accordance with the requirements of bidding
document, and confirm the system has achieved the condition for Party
A to
carry out the testing.
|
| 7.2.3 |
Party
A needs to carry out several steps including single machine test,
function
test and system test, etc;
|
| 7.2.4 |
Single
machine test refers to the test that technical personnel of both
parties
shall carry out against compliance and completion for Technical
Specifications and performance index of such equipment or product
in
accordance with the Contract and Technical
Specifications;
|
| 7.2.5 |
Function
test means the all-round test against functions of system software,
applications and system hardware carried out by testing personnel,
including black-box testing and mainly applied white-box
testing.
|
| 7.2.6 |
System
test means the test against system function and performance carried
out
after system integration testing, focusing on the reliability of
system,
system response time, and pressure test,
etc.
|
| 7.2.7 |
Test
report (in quadruplicate) shall be prepared by Party B, and after
signing
the signatures of the representatives of Party B and the third party
test
unit, the report becomes valid and becomes an important evidence
for
take-over acceptance of system.
|
| 7.3 |
Acceptance
of Project:
|
7.3.1
Evidence Document for Acceptance
| (I) |
Evaluation
standard for national related technical specifications and quality
inspection;
|
|
(II)
|
Bidding
Document for the Project (Technical
Specifications);
|
| (III) |
Technical
Specifications for major
equipments;
|
| (IV) |
Project
design document and annex provided by Party
A;
|
| (V) |
Technical
suggestions and annex consented by Party B and accepted by Party
A;
|
| (VI) |
Test
outline recognized by Party A, design unit and the third party
test
unit;
|
| (VII) |
The
Contract.
|
7.3.2
Preconditions for Acceptance
Sales
of
products and development of software must apply with state related laws,
regulations and standards;
7.3.3
Contents and Standards of Acceptance
(1)
all
requirements covered in Technical Specifications of the bidding
document;
(2)
requirements for contents of documents
Completion,
consistency, and verifiability;
(3)
requirements for markings
Markings
for product description, marking for products, info of supplier, assignments,
documents meeting demands, required system configuration, and interface with
other products, installation, support, and maintenance.
(4)
acceptance contents
There
are
different contents among different phases, stress focusing on sub-phase project
evaluation, delivery acceptance and completion acceptance, and sub-phase project
including acceptance against functions, performance and processes.
Functions:
completion, correctness, and consistency;
Performance:
reliability, accessibility, efficiency, maintainability, and compatibility,
etc.
Processes:
installation process, design flexibility, etc.
7.3.4
Personnel Structure for Acceptance
(1)
personnel for sub-phase evaluation & acceptance and delivery acceptance of
system consist of Party A, design unit, outside expert, third party test unit
and Party B;
(2)
personnel for completion acceptance consist of Party A, design unit, user
representative, outside expert, director of dept, and Party B;
(3)
Fee
relating to acceptance shall be borne by Party B.
7.3.5
Form of Acceptance Result
7.3.6.1
Acceptance Record
(1)
Explanation for acceptance specification of acceptance plan or that including
acceptance example (each acceptance example illuminates its
objective);
(2)
All
results related to acceptance example, including all failed records appear
during acceptance period;
(3)
Personnel position involved the acceptance;
(4)
Acceptance Report;
7.3.6.2
Contents of Acceptance Report
(1)
Marking of products;
(2)
Computer software and hardware system and related configuration used for
acceptance;
(3)
Documents and markings used for acceptance;
(4)
Product description, user application document;
(5)
List
unfitting to requirements;
(6)
List
and description against the parts without going through acceptance;
(7)
List
for that failed to match with suggestions and requirements, or list for that
failed to comply with suggestions and requirements, or description for products
with suggestions and requirements without going through consistency acceptance;
(8)
Acceptance Participating Personnel, beginning and finishing date, approval
and
signature & xxxx;
(9)
Conclusions (comprehensive appraisement)
7.3.6
Explanation for Acceptance Report
Acceptance
expert team prepares acceptance report in quadruplicate, Party A and Party
B
shall each hold both copies.
7.3.7
Sub-phase project evaluation, delivery acceptance
(1)
Sub-phase project evaluation is an evaluation carried out after Party B finishes
such phase projects as system hardware, software, database, WEB application,
all
planed sub-applications system, maintenance tool, etc; delivery acceptance
is
carried out by Party A’s acceptance expert team after the entire system is
finished;
(2)
Xxxxxx: adopting the manner of evaluation and appraisal of expert team or
evaluation meeting for acceptance; expert team provides acceptance or evaluation
report with the signature signed on, and Party B provide support for the
preparation of acceptance or evaluation report;
Standard:
the standard specified in the Contract or Technical Specifications;
(3)
Contents: the contents specified in the Contract or Technical
Specifications;
(4)
Acceptance report is prepared in quadruplicate, Party A and Party B shall each
hold both copies;
(5)
After
delivery acceptance, the whole system shall be delivered to Party A, and the
first three months are trial period, after which, enters into warranty period
of
system;
(6)
Delivery Acceptance
Delivery
Acceptance shall be organized by Party A, with the participation of design
unit,
third party test unit, technical expert, Party A & Party B, to carry out
quality evaluation against the Project, with fees for delivery acceptance borne
by Party B;
8.3.8
Completion acceptance
Completion
acceptance shall be organized by Party A, with the participation of senior
management authority of Party A, design unit, third party test unit, technical
expert, user representative and representatives from Party B, to carry out,
with
fees for completion acceptance borne by Party A;
7.4
Hand-over & Take-over
7.4.1
All
products including hardware and software, etc provided by Party B to Party
A
must accompanied with hand-over list and relative inspection & acceptance
report, and go through strict hand-over and take-over procedures in accordance
with the provisions of annex.
7.4.2
Delivery time, delivery contents, etc supplied by Party B to Party A see
corresponding annex.
7.4.3
Transferring of any document file or technical material between both parties
must go through hand-over and take-over procedure.
8.
Quality of Goods and Service Guarantee
8.1
Terms
and conditions for quality of goods:
8.1.1
Party B must guarantee to completely provide Party A with qualified hardware
equipment in accordance with technical performance requirements and quantity
specified in Technical Specifications, and assume all responsibilities and
duties;
8.1.2
Party B must guarantee the Project under the Contract it provides to Party
A
doesn’t include any failure arising out of design, etc, or any failure caused by
any behavior of Party B;
8.1.3
Scope of contract goods include system hardware, support software, data,
applications, technical support and spare parts, and however, should any missing
item or lack found during the implementation of the Contract, which is not
listed in list of goods, but should be included in scope of goods provided
by
Party B, and is necessary item for meeting the requirements of performance
warranty period of contracted equipments in accordance with Technical
Specifications of the Contract, such item shall be supplied by Party B in time,
exempting Party A from any fees or expenditures.
8.1.4
Party B guarantees the authenticity, correctness, reliability and stability
of
supply channel, performance, quality, quantity, specifications, and brands
of
system hardware and software it provided; guarantee to realize all functions
of
the system in accordance with the requirements of the Contract and Technical
Specifications, so as to make it obtain good reliability, accessibility,
interactiveness, compatibility, safety, fault-tolerance, openness,
maintainability and scalability;
8.1.5
Quality warranty period of project under the Contract and after-sale service
terms are based on the corresponding time and contents Party B promises to
undertake.
8.2
Terms
and Conditions for Training:
8.2.1
Party B guarantees, as per the demands of use and maintenance of system, to
offer Party A’s personnel with multi-level technical training in accordance with
the training plan agreed by both parties, and training commission is covered
in
total contract price listed in Annex 11;
8.2.2
Before the formal training, Party B shall provide Party A with Training
Plan,
in
which clearly illuminate object of training, training contents and
schedule;
8.2.3
Trainings shall be undertaken by Party B, which shall be enough to guarantee
the
normal operation of equipments, and Party A shall be responsible for the
organization work of training site;
8.2.4
Detailed requirements for training see Technical Specifications.
8.3
Terms
and Conditions for Service:
8.3.1
Party B need send representative to the site to carry out installation,
integration, debugging in accordance with the requirements of the Contract
and
relative technical data, and be responsible for the settlement of quality and
performance related issues of contracted equipments found during installation
and debugging, and trial operation periods;
8.3.2
Should any great issue need to be studied and negotiated between both parties
in
time, either party may call for a meeting, and in general, the other party
shall
agree to participate;
8.3.3
Both parties shall keep memo for meetings or contacts during each meeting and
other communicating methods, and contents of memo shall be binding to both
parties. Should any modification of terms and conditions of the Contract or
any
great change of technical proposal and contract price involved, such
modification or change must go through the negotiation of both parties, and
become effective only after signatures signed by the legal representatives
of
both parties;
8.3.4
For
technical service proposal for installation, debugging and operation proposed
by
Party B and agreed by both parties on the meeting, should Party B make any
modification, it shall inform Party A in written, and no modification may be
made without the confirmation of Party A. In order to meet the requirements
of
site conditions, Party A has the right to bring forward any alteration or
modification opinion; Party A shall inform Party B in written about such
alteration or modification, and Party B shall give enough consideration and
meet
the requirements of Party A as much as possible;
8.3.5
Party B must undertake full responsibility for such issues as goods supply,
interface of equipment and technique, technical services, etc relating to the
Contract;
8.3.6
For
any other equipment and installation connecting with the equipments under the
Contract, Party B shall be responsible for providing technical matching service,
without any additional fees aroused outside contract price;
8.3.7
Technical personnel sent by Party B to the site for providing services shall
obtain practical experience, and qualify for such works. Such technical
personnel shall go through the confirmation procedure within 15 days after
the
validity of the Contract. Party A has the right to ask Party B to replace such
technical personnel who aren’t qualified, and Party B shall, in accordance with
the demands of the site, resend technical personnel recognized by Party A.
Should Party B not give reply within 7 days after Party A bring forward such
requirement, it deems the same as delay of project;
8.3.8
Any
loss arising out of omission and failure in installation and debugging caused
by
technical personnel of Party B shall be borne by Party B;
8.3.9
Party B shall assume after-sale responsibilities and duties under the Project
of
the Contract in accordance with detailed requirements of Technical
Specifications and commitment to after-sale service for this
bidding;
8.4
Party
B guarantees to offer free maintenance and repairing service, and technical
support within 3 year warranty period for system hardware, system software
and
applications from signing for delivery acceptance of system to expiring of
trial
operation to Party A in accordance with the service commitment covered in Annex
8;
8.4.1
Detailed contents of warranty for equipments shall be carried out in accordance
with the requirements of bidding document of the Project;
8.4.2
Specific requirements for maintenance of system:
(1)
Party
B shall be responsible for installation, debugging, training and services
related to the Project in accordance with the Contract;
(2)
For
relative troubles arising out from operation of system, in general, Party B
shall give response within 4 hours; for emergency, Party B shall give response
within 1 hour, and if any site service needed, Party B shall arrive at the
site
within 2 hours;
(3)
For
the default found during warranty period, Party A shall inform Party B in
written as soon as possible;
(4)
For
any new cost arising out from Party B’s failure in providing relative equipment
and maintenance service free of charge within the time limit specified in
technical specification after receiving the notice shall be borne by Party
B;
(5)
Should Party B fail to take any remedy within the period specified in the
Contract, Party A may take necessary measures for remedy with the risks and
costs borne by Party B, and other rights Party A reserves against Party B in
accordance with the Contract shall not be influenced;
(6)
Within warranty period, Party B shall provide spare parts and maintenance
services free of charge, and the price of spare parts provided after the
expiring of warranty period shall not exceed the price of such spare parts
covered in the Contract;
(7)
Should any failure appear, Party B shall give response within 24 hours after
Party A applies for service, and finish the repairing of such failure, with
spare machine provided when repairing the failure of hardware;
(8)
Damage to equipment arising out from unwarrantable use after acceptance of
system shall not be covered in warranty scope.
8.5
The
duties Party B shall undertake in accordance with Sub-clause 10.4 shall keep
effective after the expiring of the Contract till such duties are fully
implemented;
8.6
Terms
of Delivery:
8.6.1
Specified Place of Delivery: Financial Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Xxxx
8.6.2
Party B shall submit Party A with detailed list for equipments upon delivery
of
goods, in duplicate:
8.6.3
Should any missing, loss of or damage to goods and technical data found upon
the
check of representative of Party A, and not arising out of Party A, Party B
shall offer the parts missing, lost or damaged free of charge to the site within
30 days (for emergency, time limit shall be 10 days) after receiving the notice
from Party A. Should any missing, loss or damage arise out from Party A, Party
B
shall offer such parts to the site within 30 days (for emergency, time limit
shall be 10 days) after receiving the notice from Party A, with the charge
borne
by Party A.
9.
Confidential Terms
9.1
Without Party A’s written consent, Party B shall not provide bid document or
bidding document, contract and its annex, data, results, etc to any other party
who has nothing to do with the Contract, and even though such documents are
provided to correlative personnel, confidential work shall be paid attention
to;
9.2
Without Party A’s written consent, Party B and its personnel shall not publicize
any article, photo, and other data related to the Project;
9.3
After
the implementation of system, Party B shall return the documents and data of
various media used for construction of system to Party A;
9.4
The
duties of both parties in accordance with this sub-clause keep valid after
the
expiring or termination of the Contract and without time limitation, and any
loss caused by the damage arose out from the violation of the Contract shall
be
borne or remedied by the arising party unconditionally.
10.
IP Right and Patent Right
10.1
During the implementation and after the completion of project, the ownership
of
the system and relative software, hardware, material, data, drawing, and such
documents as relative material, data, drawing, and results, etc obtained by
Party B for the construction of the system shall belong to Party A;
10.2
After the completion of the Project, all ownership such as property of the
Project, copyright of system software, application right for patent, access
right, transfer right, etc shall totally transfer to Party A; should Party
B
utilize the system for exhibition, publicity, etc related non-commercial
purpose, it must obtain Party A’s written consent, or it shall not be permitted
to utilize any content and name of the system for any other purpose or to carry
out business activities;
10.3
Party B guarantees to refuse pirate products and that all system hardware and
software adopted in the Project are original and legal, without infringement
of
copyright of any third party, and that no damage or loss shall be caused to
Party A, or Party B shall bear all results caused by foresaid
behaviors;
10.4
The
duties of Party B in accordance with this sub-clause keep valid after the
expiring or termination of the Contract and without time
limitation.
11.
Amount of Contract and Payment Methods
11.1
Total contract amount:
RMB:
30,146,265 Yuan (In Capital: SAY RMB THIRTY MILLION ONE HUNDRED FOURTY SIX
THOUSAND TWO HUNDRED SIXTY FIVE YUAN ONLY). (see Annex: Quotation Table for
detail)
11.2
Under the preconditions that Party B implements the duties under the Contract
and fulfills the Project schedule, Party B shall submit Party A with notice
for
payment application as per the following schedule, and Party A shall confirm
and
make the payment within 10 days upon receiving the notice; should Party B incurs
contract related problems or any emergency occurs, Party A shall give the
schedule for delayed payment and the reason for such delay in
written;
First
payment: within 7 days after the signing of the Contract, pay 15% of total
contract amount, i.e. RMB 4,521,940.00 Yuan;
Second
payment:
within
10
days after single machine or that for sub-system, pay 60% of total contract
amount, i.e. RMB 18,087,759.00 Yuan;
Within
10
days after the completion of system installation and debugging, pay 20% of
total
contract amount, i.e. RMB 6,029,253.00 Yuan;
Third
payment: the rest 5% shall act as guarantee bond for maintenance of project,
within 10 days after the expiring of 12 month free maintenance period, Party
A
shall pay the rest 5% of total contract amount, i.e. 1,507,313 Yuan to Party
B.
11.3
Party B sends Party A the notice for payment application in time in accordance
with above sub-clause, and Party A shall inform Party B to collect the cheque
for transfer of Party A’s with submitting the invoice;
11.4
Should delayed payment is caused by Party B’s failure to implement its duties or
to give notice for payment application, and accordingly causes losses including
impact on project schedule, Party B shall be responsible for keeping up with
the
Project schedule and remedying the losses;
11.5
Cost
arising out from additional service outside the Contract required by Party
A
shall be paid by Party A separately.
12.
Performance Guarantee
12.1
Party B shall credit RMB 3000,000 Yuan to its legal and effective bank account
as performance bond provided to Party A. Such performance bond is used to
compensate for loss that Party A may suffer from Party B’s failure to implement
its duties;
12.2
Performance guarantee of performance bond shall be offered by the bank before
the signing of the Contract, with original copy provided to Party A and
duplicate one as annex of the Contract; contents and form of performance
guarantee shall be provided in accordance with the format attached in the
bidding document; period of validity of performance guarantee shall be
long-term, and original one shall be returned to Party B within 10 days after
Party B fulfills its duties in accordance with the Contract.
13.
Force Majeure
13.1
Force Majeure means any natural disaster and mischance that postpone or disturb
the implementation of both parties’ duties, such as typhoon, flood, earthquake,
fire, blast, war (whether there be a declaration of war or not), aggression,
rebellion, commotion, revolution, military coup or natural disaster that causes
long-term suspending of both parties’ work;
13.2
Should the implementation of either party’s duties be postponed due to the
influence of force majeure, the postponed period shall be equal to the period
that force majeure exists, however, contract price shall not be influenced
by
the postponing of implementation of duties;
13.3
The
party suffering the force majeure shall inform the other party such situation
via fax or telegraph as soon as possible after such force majeure appears,
and
within 10 days, provide the other party with certification document issued
by
relevant authority for the other party to confirm; meantime, the suffering
party
shall try its best to reduce such influence and delay arising out from such
situation, and inform the other party as soon as the influence of force majeure
disappears;
13.4
Should such influence of force majeure to both parties be estimated to exceed
60
days, either party has the right to inform the other party to terminate the
Contract, and when such termination becomes valid, Party B has the right to
obtain the payment that Party A ought to pay; both parties shall enter into
an
agreement for further cooperation within reasonable period through friendly
negotiation;
13.5
Should failure of implementation of duties be caused by force majeure, both
parties shall be exempted from liability for breach of contract, and losses
caused by such situation shall be borne by both parties.
14.
Contract Period, Delay of Performance, Postponing, Suspending or Termination
of
Contract
14.1
Contract Period of the Contract shall be 18 months since the validity of
Contract with signature signed (period specified in Technical Specifications).
During such period, Party B shall be responsible for implementation of
purchasing, inspection, delivery of goods, installation, debugging, software
development, system integration, trial operation, acceptance and technical
support, etc relating to all equipments under the Contract;
14.2
Delay of Performance
14.2.1
Party B shall delivery the goods and offer services within performance period
in
accordance with the bid document;
14.2.2
During the implementation of the Contract, should Party B suffer the influence
that impedes goods delivery and services offering on time, it shall inform
Party
A with the fact, estimated time of delay and reasons in written. Party A shall
evaluate the situation upon receiving the notice immediately, and confirm if
it
agrees to extend the delivery period, and if it shall charge compensation for
such delay. Delay of performance shall get the recognition of both parties
through the method of modification of contract;
14.2.3
Unless under the situation specified in Clause 16 of the Contract or the
situation under which Party A agrees to the delay without any compensation,
Party B shall be charged with compensation for delay of performance in
accordance with the Contract if any delay of goods delivery
happens.
14.3
Postponing of Contract: adjustment of project schedule due to insufficient
time
estimated by both parties for all phases of project or the reason of Party
B,
shall not be regarded as postponing of Contract; both parties shall from time
to
time evaluate the process of project, and upon written consent of Party A for
adjustment of project schedule which Party A agrees, Party B may carry out
the
adjustment;
14.4
Suspending of Contract
14.4.1
Should Party A not make the payment to Party B within 30 days after the expiring
day for settlement of payment upon it receiving the notice for payment
application and without any reasonable reason, Party B shall give Party A with
written notice one more time; should Party A not make the payment to Party
B
within 14 days after giving out the second notice without any reasonable reason,
Party B may in written inform Party A to terminate or suspend the
Contract;
14.4.2
For the situation under which Party B suspend the performance of its duties
under the Contract with reasonable reasons, Party A shall make the reasonable
payment to Party B for the part of actual implementation, and the services
offered by Party B shall be suspended during the delay of contract; should
Party
A require Party B to resume its duties under the Contract, Party A shall pay
Party B with reasonable compensation for its economic loss caused by the
suspending of contract owing to Party A; should the delay of contract exceed
12
months, either party may in written inform the other party to terminate the
Contract or enter in a new contract;
14.4.3
The period from the delay of contract to resume the contract shall be the
extension period of contract. For the cases that Party A has compensated Party
B
in accordance with the above sub-clause, Party A shall not pay compensation
to
Party B for delay of contract any more;
14.5
Termination of Contract:
14.5.1
Due to such big environment related reasons as society, economy, laws or
politics, etc, Party A may in written inform Party B that the Contract shall
be
terminated or suspended on some specific date, and such notice shall be given
30
days in advance before the validity of such termination or suspending of
contract;
14.5.2
Should
Party B become bankruptcy or disability for repayment, or its business has
been
taken over by liquidator, or it may not perform the contract normally due to
the
influence of force majeure, Party A may in written inform Party B to terminate
the Contract without any compensation paid to Party B;
14.5.3
Upon the termination of contract, Party B shall transfer all works it
undertakes, sub-contracting contract and all related documents to Party A or
the
receiving unit assigned by Party A during the time it receiving the notice
and
the time that the termination of contract becomes valid. Upon Party B perform
its duty under this sub-clause, Party A shall reasonable confirm Party B’s “due”
amount in accordance with the efficient workload Party B actually implements,
and check “paid” amount, and under the principle of refund for any overpayment
or a supplemental payment for any deficiency, make the settlement of the final
payment; the final payment shall be settled within 30 days upon the termination
of contract;
14.5.4
Party A’s other liability for payment under the Contract shall be terminated
upon the termination of the Contract, and Party B shall offer services within
warranty period against the hardware equipments it provides;
14.6
Termination for breach of contract. Upon Party A finds any of the following
situation, it shall inform Party B with written notice on breach of contract,
and should Party B take no remedy, Party A may require to terminate part or
whole of the contract:
14.6.1
Party B fails to provide partial or whole goods within the period specified
in
the Contract, or within the extension period agreed by Party A in accordance
with the provisions of the Contract;
14.6.2
Party B fails to perform any other duty specified in the Contract;
14.6.3
Party A finds out that Party B has corruptive or fraudulent behavior during
the
competition or implementation of the Contract:
(1)
“Corruptive Behavior” refers to the behaviors of providing, giving, accepting or
asking for any valuable articles for bribing Party A’s personnel, which
influence the implementation of the Contract;
(2)
“Fraudulent Behavior” refers to the behavior of giving false report so as to
influence the procurement or implementation of the Contract, and impairs Party
A’s benefit.
15.
Alteration and Modification
15.1
Both
parties have the right to propose any alteration, modification or addition
against the terms and conditions of the Contract, however, a written document
for alteration, modification or addition shall go through the negotiation,
confirmation and signing procedure between both parties;
15.2
Party may from time to time give an instruction to Party B to alter one or
more
terms and conditions in the Contract, and should any payment or time alteration
arising out from such alteration, the contract price or delivery time or the
both may be adjusted on the square, and meantime, the contract shall be modified
accordingly;
15.3
Opinions such as all consents, approval, permission, notice, disclaimer, etc,
and various commitment must become a formal written document with efficient
signature of Party A or Party A’s representatives, and any other form shall be
regarded as invalid;
15.4
Any
alteration or modification against the terms and conditions of the Contract
must
enter into written complementary contract;
16.
Breach of Contract and Claim for Compensation
16.1
Either party fails to perform it duties or responsibilities under the Contract
shall be deemed breach of contract, and the defaulting party shall compensate
the other party the economic loss it causes;
16.2
Once
the Contract is signed, without reasons listed in the Contract, neither party
is
permitted to alter or terminate the Contract unilaterally; should either party
terminate the Contract unilaterally, or alter the plan for project without
the
other party’s permission, and fails to make remedies within one week after
receiving the notice on breach of contract, the other party has the right to
terminate the Contract unilaterally and claim for compensation against the
defaulting party;
16.3
For
any loss caused by either party’s breach of contract, aggrieved party may claim
for compensation, and the compensation shall be limited to direct loss with
evidence, excluding the running or anticipated benefit, and any other
correlative or indirect loss;
16.4
Should Party B serious break the contract, and fail to take remedies, so as
to
result in economic loss against Party A, Party A has the right to ask the bank
through which performance guarantee is issued to pay performance bond as the
compensation that Party B ought to pay by presenting original copy of
performance guarantee, original copy of contract and “explanation for Party B’s
breach of contract” issued by Party A;
16.5
Should Party B not be able to complete the Project within contract period,
Party
B may claim for compensation in accordance with the following provisions: delay
of contract period for one week (7 days), compensation amount is 0.2% of total
contract amount, and total compensation amount shall not exceed 5% of total
contract amount;
16.6
Should any discrepancy be found in brand, size, performance, quality and grade
of products between the actual list and the list attached in annex, Party B
shall bear the economic expenditures for re-purchasing, backout and re-building
and corresponding losses;
16.7
Should the quality of system fail to meet the requirements of design and
criteria, it deems a breach of contract, and Party B shall compensate Party
A
for all losses arising out of its breach;
16.8
Except for the compensation judged by the Court or compromise fee regarding
copyright infringement, other compensation caused by any other causes shall
not
exceed 15% of total contract amount;
16.9
Party A shall make payment to Party B on time; should any delay happen without
reasonable reasons, 0.05% of due amount shall be calculated as late fee per
day,
with 10% of due amount as the limit;
16.10
Should Party B fail to delivery the Project under the contract or offer the
services (incl. technical documents) within the time specified in the contract
due to the reasons irrelated to Party A (excl. force majeure), Party B must
pay
the compensation, and Party A shall deduct compensation for delay of contract
from due amount of contract without influencing other remedies under the
contract; 0.05% of due amount shall be calculated as late fee per day, with
10%
of due amount as the limit;
16.11
Should any default found uncomplying with the contract within warranty period
be
covered in the duties of Party B, Party A shall claim for compensation; should
Party B have any dissidence, it shall bring forward such dissidence within
7
days after receiving the written notice from Party A, or, foresaid claim deems
accepted by Party B;
16.12
Should contracted equipments stop operation or their installation be postponed
for replacement or repairing of default equipments due to Party B’s reason,
warranty period shall be extended with the equal period for actual repairing
or
replacement;
16.13
Should any serious default found within warranty period be covered in the duties
of Party B(for example, equipment performance fails to meet the requirements,
etc.), warranty period shall be calculated from the amendment of such default;
16.14
Should any delay or economic loss appear during implementation of the contract
due to delay, negligence or mistake of technical service of Party B, Party
B
shall compensate Party A in accordance with the contract, and Party B shall
pay
the direct losses caused by its failure in technical service or breach of
contract;
16.15
Accumulative total compensation against contracted equipments Party B shall
pay
in accordance with the terms and conditions of the contract shall not exceed
10%
of total contract amount;
16.16
Paying compensation shall not relieve both parties’ corresponding
responsibilities and duties specified in the Contract.
17.
Settlement of Dispute
17.1
Should any dispute appear during implementation of contract, it shall be settled
through friendly negotiation, and should such dispute not be able to be settled
within 60 days after the beginning of friendly negotiation, either party may
apply for arbitration or file an appeal with the people’s court;
17.2
Arbitration may be carried out by Beijing Arbitration Commission in Beijing
in
accordance with arbitration regulations and procedures;
17.3
Appeal may be sued to the local people’s court either party’s unit
locates;
18.4
During arbitration or appeal period, except for the part in the process of
arbitration or appeal, other parts of the contract shall keep
effective.
18.
Governing Authority and Signing of Contract
18.1
The
contract and all rights and duties involved in the Contract shall be governed
by
the current laws of the People’s Republic of China, and forming, alteration,
termination of both parties’ rights and duties, and settlement of dispute must
comply with the provisions of relevant laws, regulations and rules of the
People’s Republic of China;
18.2
This
Clause of the contract complies with the scope that isn’t replaced by terms and
conditions of other parts of the contract;
18.3
Without the other party’s consent, neither party shall transfer any of its
rights or duties under the contract to a third party;
19.
Efficiency of Contract
19.1
The
contract shall becomes valid upon the signature signed by authorized
representatives of both parties and the seal stamped, with the expiring date
to
the time when the Project is completed, all payments of the contract are
settled, and all warranty, maintenance services and technical support are
implemented, and all warranty periods are expired as well;
19.2
The
contract is prepared in Chinese in sextuplicate, wherein, two for original,
four
for duplicate, with both parties holding one original and two duplicates, and
original and duplicate have the same legal efficiency;
19.3
Till
the date that contract becomes valid, the contract is the sole contract signed
between both parties for both parties’ rights and duties; any relative
commitment, warranty, arrangement related to the contract and affairs not
involved in the annex of the contract exist before the signing of the contract
shall become invalid after the signing of the contract;
19.4
All
annexes of the contract are indiscerptible parts of the contract, and have
the
same efficiency with the contract; other documents not listed in annexes of
the
contract shall not be binding to both parties excepting for acting as the
reference of implementation of contract;
19.5
For
procedures complying with the provisions of the contract as modification or
addition to the contents of the contract or its annexes, upon efficient signing
of both parties, such procedures become part of the contract with same
efficiency as complementary annex of the contract;
19.6
Should any term and condition or part of it under the contract become illegal,
inefficient, and unbinding, the legality, efficiency and binding efficiency
of
other terms and conditions or other part of it shall not be impaired, and the
contract shall become invalid beyond the efficient period.
20.
Delivery of Notice and Documents and Contact Info
20.1
Notice sent by one party to the other shall be in written, or send to the
address of the other party specified in the contract via fax, and notice or
fax
shall be confirmed in written;
20.2
Efficient date for notice is the date on which the notice reaches the other
party;
20.3
All
notices or other corresponding data and documents related to the contract must
be given in written in accordance with the requirements of this clause; the
notice given by personal delivery deems effective upon the signature signed
by
the reception person or any employee serves the other party at the postal
address; the one mailed by registered letter deems effective upon the signature
signed by the reception person or any employee serves the other party at the
postal address; the one sent by fax or email deems effective upon receiving
the
return receipt from the other party, paper document(s) must be provided
subsequently;
20.4
Contact info of both parties is as follows:
Party
A:
Beijing Zhongzheng Real-estate Development Co., Ltd.
Authorized
Representative: Xxx Xxxxxx
Tel.:
00000000
Authorized
Representative: Xxxx Xxxxxxxxx
Address:
Rm717, Tower B, E-wing Center, Xx. 000, Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Xxxx
P.C.:
100086 Fax:
000-00000000
Party
A: Beijing Zhongzheng Real-estate Development Co.,
Ltd.(seal)
Authorized
Representative: Xxx Xxxxxx (signature)
Signature:
Party
B: Beijing Beijing PKU Chinafront Technology Co.,
Ltd.(seal)
Authorized
Representative: Xxxx Xxxxxxxxx (signature)
Signature:
