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EXHIBIT 10.2
TURNKEY PROJECT AGREEMENT
BETWEEN
IMPSAT S.A.
AND
NORTEL NETWORKS CORPORATION
AND
NORTEL NETWORKS DE ARGENTINA S.A.
DATED AS OF SEPTEMBER 6, 1999
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TABLE OF CONTENTS PAGE
ARTICLE I. DOCUMENTS FORMING THE ENTIRE AGREEMENT.................................................................2
ARTICLE II. DEFINITIONS...........................................................................................3
2.1 Certain Definitional Provisions...................................................3
2.2 Definitions.......................................................................3
ARTICLE III. SCOPE OF WORK AND RESPONSIBILITIES..................................................................14
3.1 Scope of Work....................................................................14
3.2 Network Overview.................................................................14
3.3 Design, Engineering and Maintenance Services.....................................15
3.4 Equipment, Structures and Network Software.......................................16
3.5 Installation and Commissioning...................................................16
3.6 Responsibilities of Vendor -- General............................................17
3.7 Responsibilities of Impsat -- General............................................19
3.8 Responsibilities - Applicable Permits............................................20
3.9 Engineering Certification........................................................21
3.10 Interoperability.................................................................21
3.11 Safety and Security..............................................................21
3.12 Inspection Right.................................................................22
3.13 Operating Manuals................................................................23
3.14 Maintenance Manuals..............................................................23
3.15 Standards for Operating and Maintenance Manuals..................................24
3.16 RF Engineering...................................................................25
3.17 Site Acquisition and Rights of Way...............................................25
ARTICLE IV. PROJECT IMPLEMENTATION...............................................................................26
4.1 Impsat Project Manager...........................................................26
4.2 Vendor Project Manager...........................................................26
4.3 Network Implementation Project; Project Implementation Plan......................26
4.4 Impsat Requested Delays in Shipment of Equipment.................................26
4.5 Change Orders and Directed Changes...............................................27
4.6 Project Progress Reporting.......................................................28
4.7 Work Staffing....................................................................28
4.8 Force Majeure and Delay Attributable to Impsat...................................29
4.9 Records and Communications.......................................................30
4.10 Impsat Review, Comment and Approval..............................................30
4.11 Quality Assurance................................................................30
4.12 Training.........................................................................31
4.13 Performance Bond.................................................................31
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ARTICLE V. ACCEPTANCE TESTING....................................................................................31
5.1 Acceptance Testing - General.....................................................31
5.2 Notification; Presence at Acceptance Tests.......................................31
5.3 Acceptance Test Reports and Acceptance Certificates..............................31
5.4 Punch Lists, Correction of Defects; Costs and Expenses...........................32
5.5 In Revenue Service...............................................................33
5.6 Provisional Acceptance...........................................................33
5.7 Final Acceptance.................................................................34
ARTICLE VI. SPARE PARTS; POST-COMMISSIONING SUPPORT..............................................................35
6.1 Spare Parts......................................................................35
6.2 Product Support Services; Emergency Technical Assistance Services................35
ARTICLE VII. INTELLECTUAL PROPERTY RIGHTS........................................................................36
7.1 Background IPR and Foreground IPR................................................36
7.2 Vendor License...................................................................36
7.3 Impsat's Obligations Regarding Software Elements.................................37
7.4 Assignment.......................................................................38
7.5 Sublicensing.....................................................................39
7.6 Software Element Maintenance and Support.........................................39
ARTICLE VIII. NOTIFICATION OF DEVELOPMENTS.......................................................................40
8.1 Industry Developments............................................................40
8.2 Vendor Developments..............................................................40
ARTICLE IX. PRICING AND PAYMENT PROVISIONS.......................................................................41
9.1 Product List and Pricing Schedule................................................41
9.2 Invoicing and Payments...........................................................41
9.3 Vendor Financing.................................................................43
9.4 Disputed Invoices................................................................45
9.5 Late Payments....................................................................45
9.6 Right of Offset..................................................................45
9.7 Taxes............................................................................46
ARTICLE X. SHIPPING, LOGISTICS, IMPORTATION; TITLE AND RISK OF LOSS..............................................48
10.1 Title and Risk of Loss - General.................................................48
10.2 Shipping.........................................................................49
10.3 Importation and Inland Transportation............................................49
10.4 Export and Import Licenses and Work Permits......................................49
ARTICLE XI. INSURANCE 50
11.1 Maintenance of Insurance.........................................................50
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11.2 Additional Requirements..........................................................51
11.3 Subcontractors' Insurance Requirements...........................................52
11.4 Evidence of Insurance............................................................52
ARTICLE XII. PRODUCT WARRANTIES..................................................................................52
12.1 Equipment and Services Warranty..................................................52
12.2 Software Warranty................................................................53
12.3 Civil Work Warranty..............................................................54
12.4 Warranty Limitations.............................................................55
ARTICLE XIII. INDEMNITIES AND LIMITATIONS ON LIABILITY...........................................................56
13.1 Vendor Indemnity.................................................................56
13.2 Impsat Indemnity.................................................................57
13.3 No Limitation on Other Rights....................................................58
13.4 Limitation.......................................................................58
13.5 Cooperation......................................................................58
13.6 Defense of Claims................................................................58
ARTICLE XIV. FAILURE TO DELIVER AND EARLY COMPLETION.............................................................59
14.1 Vendor's Failure to Deliver on Time..............................................59
14.2 Vendor's Early Completion........................................................60
14.3 Performance Related Damages......................................................60
ARTICLE XV. REPRESENTATIONS AND WARRANTIES.......................................................................61
15.1 Representations and Warranties of the Vendor.....................................61
15.2 Representations and Warranties of Impsat.........................................61
ARTICLE XVI. TERM AND TERMINATION................................................................................62
16.1 Term.............................................................................62
16.2 Termination......................................................................62
16.3 Impsat's Option Upon Termination.................................................63
ARTICLE XVII. USE OF SUBCONTRACTORS..............................................................................64
17.1 Consent Required for Vendor to Subcontract.......................................64
17.2 Use of Subcontractors............................................................64
17.3 Vendor Warranties................................................................65
17.4 Payments to Subcontractors.......................................................65
17.5 Removal of Subcontractor or Subcontractor's Personnel............................65
17.6 Subcontractor Insurance; Compliance with Local Laws..............................66
17.7 No Effect of Inconsistent Terms in Subcontracts..................................66
17.8 Additional Restrictions..........................................................66
ARTICLE XVIII. GOVERNING LAW; DISPUTE RESOLUTION.................................................................66
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18.1 Governing Law....................................................................66
18.2 Informal Dispute Resolution......................................................66
18.3 Agreement to Resolve Disputes by Arbitration.....................................67
18.4 Arbitration Awards...............................................................68
ARTICLE XIX. MISCELLANEOUS.......................................................................................68
19.1 Expenses.........................................................................68
19.2 Relationship of the Parties......................................................69
19.3 Notices..........................................................................69
19.4 Headings.........................................................................70
19.5 Severability.....................................................................70
19.6 Waiver...........................................................................70
19.7 Entirety of Agreement; No Oral Change............................................70
19.8 The Parties' Right to Assign.....................................................71
19.9 Confidentiality..................................................................71
19.10 Binding Effect...................................................................73
19.11 Counterparts.....................................................................73
Exhibits
Exhibit A Network Design Plan
Exhibit B Description of Network Management System
Exhibit C Description of Functional Units and Coefficients for Liquidated Damages and
Bonuses
Exhibit D Project Implementation Plan
Exhibit E On-Going ECC Services
Exhibit F Acceptance Test Procedures
Exhibit G Accommodation Plan and Description of Civil Engineering Services
Exhibit H Special Considerations Related with Telecommunications Products
Exhibit I Technical Support Provisions
Exhibit J Operations and Maintenance
Exhibit K Training Strategy and Plans
Exhibit L Technical Specifications of Equipment, Optic Fiber and Civil Work
Exhibit M Product List and Pricing Schedule
Exhibit N Standby Letter of Credit
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TURNKEY PROJECT AGREEMENT
This Turnkey Project Agreement (this "Agreement") is entered
into as of the 3rd day of September, 1999 by and among IMPSAT S.A., a company
organized under the laws of Argentina ("Impsat"), Nortel Networks Corporation, a
corporation organized under the laws of Canada ("NNC"), and Nortel Networks de
Argentina S.A., a corporation organized under the laws of Argentina
("Nortel-Argentina") and, together with NNC, the "Vendor") (the Vendor, together
with Impsat, collectively referred to as the "Parties").
RECITALS:
WHEREAS, IMPSAT Corporation ("Impsat Corp."), the parent
company of Impsat, desires for its subsidiaries to construct and operate a
telecommunications network in several countries throughout Latin America (the
"Project"), with Phase I of the Project encompassing Argentina and Brazil, as
specified in the Network Design Plan attached hereto as Exhibit A (the
"Network," as more fully defined herein); and
Whereas, Impsat Corp. issued a request for proposal ("RFP") on
August 14, 1998 with respect to the potential issuance of a contract for
engineering consulting services with respect to the Project (the "ECC"),
including the design, deployment and development of the Project, which RFP
included Impsat Corp.'s minimum requirements with respect to the ECC; and
Whereas, NNC responded to the RFP for the ECC on October 22,
1998 with a written proposal, and Impsat Corp. and NNC subsequently exchanged
additional information with respect to Impsat Corp.'s requirements and NNC's
willingness to meet such requirements; and
Whereas, Impsat Corp. subsequently determined that the best
interests of the Project would be served by having the Project constructed on a
turnkey basis, rather than having separate companies perform engineering
services and equipment procurement services; and
Whereas, Impsat Corp. issued a second RFP with respect to the
provision of Phase 1 of the Project on a turnkey basis, and Vendor received from
Impsat on or about December 23, 1998 a series of documents detailing the scope
of and performance requirements for the Network, including a project master
plan, price sheets, basic descriptions of the Project, drawings and
specifications and a negotiations framework; and
WHEREAS, in response to these documents, Vendor submitted a
series of offers to Impsat on or about March 22, 1999 detailing Vendor's plans
for designing and building the Network in accordance with Impsat's requirements,
including a technical proposal, a commercial proposal and other additional
proposals; and
WHEREAS, Impsat Corp. and NNC have entered into that certain
Letter of Intent dated May 17, 1999, as subsequently extended on July 26, 1999
and August 17, 1999 (the "LOI"), in which the parties thereto agreed to
preliminary terms and conditions regarding the Network; to negotiate further in
order to finalize definitive documentation for the
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implementation of the Network; and for the Vendor to commence work on certain
aspects of the Network; and
WHEREAS, the Parties desire to provide for the Vendor to
undertake all work and supply all goods and services necessary for the design,
planning, manufacturing, procurement, supply, delivery, integration and
installation of equipment, construction of facilities, and testing and
commissioning of the Network, on a "turnkey" basis, all on the terms and
conditions set forth herein; and
WHEREAS, the Parties have agreed to enter into this Agreement
to govern their relationship with respect to the design and construction of the
portion of the Network located in Argentina (the "Subnetwork"), and IMPSAT
Comunicacoes Ltda., a Subsidiary of Impsat Corp., NNC and Northern Telecom do
Brasil Comercio e Servicos Ltda., a Subsidiary of NNC ("Nortel-Brazil"), are
simultaneously entering into a similar agreement to govern their relationship
with respect to the design and construction of the portion of the Network
located in Brazil (the "Companion Subnetwork");
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Impsat and the Vendor hereby agree as follows:
ARTICLE I.
DOCUMENTS FORMING THE ENTIRE AGREEMENT
This Agreement consists of the commercial terms and conditions
contained in the body of this Agreement, and the following Exhibits, which shall
be read and construed as part of this Agreement:
Exhibit A Network Design Plan
Exhibit B Description of Network Management System
Exhibit C Description of Functional Units and Coefficients
for Liquidated Damages and Bonuses
Exhibit D Project Implementation Plan
Exhibit E On-Going ECC Services
Exhibit F Acceptance Test Procedures
Exhibit G Accommodation Plan and Description of Civil
Engineering Services
Exhibit H Special Considerations Related with Telecommunications
Products
Exhibit I Technical Support Provisions
Exhibit J Operations and Maintenance
Exhibit K Training Strategy and Plans
Exhibit L Technical Specifications of Equipment, Optic
Fiber and Civil Work
Exhibit M Product List and Pricing Schedule
Exhibit N Letter of Credit
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The Exhibits listed above have no order of precedence. In the
event of any conflict or inconsistency between the terms and conditions
contained in this Agreement and the above Exhibits, the terms and conditions
contained in the Agreement shall prevail, except with respect to Exhibits A, E,
G, H, I, J and L, provided, however, that in no event shall any Exhibits prevail
over Articles VII, IX, XII and XIII, except as otherwise specifically provided
for in Section 9.1. In the event of any conflict or inconsistency between the
terms and conditions in the NNCPs and any other documents provided by Vendor,
the terms and conditions contained in this Agreement and the terms and
conditions contained in the Exhibits shall prevail.
ARTICLE II.
DEFINITIONS
2.1 Certain Definitional Provisions.
(a) When used without definition in any Contract Document, a
capitalized term that is defined in this Agreement shall have the meaning
provided herein.
(b) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section, subsection
and Exhibit references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined in this Agreement are
equally applicable to both the singular and plural forms and derivative forms of
such terms.
(d) When used in this Agreement, the terms "include,"
"includes" and "including" are not limiting.
2.2 Definitions.
As used in this Agreement, the following capitalized terms
have the following meanings:
"Acceptance Testing for Provisional Acceptance" has the
meaning specified in Section 5.6.
"Acceptance Tests" means, collectively, the performance and
reliability demonstrations, if applicable, and the tests to be performed in
accordance with the applicable Acceptance Test Procedures, or other such
demonstrations and tests as agreed to by the Parties.
"Acceptance Test Procedures" means, collectively, the test
procedures described in Exhibit F specifying the purposes, testing principles,
test specifications, test procedures and success criteria for each of the
Acceptance Tests.
"Accommodation Plan" means the Accommodation Plan and
Description of Civil Engineering Services attached hereto as Exhibit G.
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"Affiliate" when used with respect to any Person, means any
other Person that controls, is controlled by or is under common Control with
such Person, whether through ownership of voting securities or otherwise.
Notwithstanding the foregoing, no Governmental Entity shall be considered an
Affiliate of any Person.
"Aggregate Price" has the meaning specified in Section 9.1.
"Agreement" has the meaning specified in the prefatory
paragraph hereto.
"Applicable Laws" means, as to any Person, all laws, statutes,
rules, regulations, codes, treaties, ordinances, judgments, decrees,
injunctions, writs, orders, directives and stipulations of any Governmental
Entity, and interpretations thereof, in any jurisdiction or country (i)
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject or (ii) having jurisdiction over
all or any part of the Subnetwork or the Work to be performed pursuant to the
terms of this Agreement.
"Applicable Permits" means any franchise, permit,
authorization, concession, approval, license (including export/import licenses),
order, waiver or similar instrument (including any of the foregoing relating to
land use, building and occupancy permits and "roofrights") of or from any
Governmental Entity having jurisdiction over all or any part of the Subnetwork
or the Work to be performed pursuant to the terms of this Agreement or of or
from any other Person to the extent necessary to perform and complete the Work.
"Background IPR" of NNC and its Subsidiaries or of Impsat and
its Subsidiaries means any IPR of such party, or any IPR licensed from a
third-party by such party, that is conceived, created, or developed prior to, or
independent of, any Work or Service performed under this Agreement.
"Building Infrastructure" means, with respect to any Network
Element Facility, the grounding , the air-conditioning systems (both general and
special), the fire alarm and extinguisher systems, elevators, water and sewer
systems, the uninterruptible power supply ("UPS"), the main power boards, the
power distribution boards, the towers, the transformers, the power generators,
the electrical rectifiers and batteries, the cable and equipment ladders, trays
and racks, the technical floors, the security systems, the environmental
telesupervision systems, the auxiliary lighting systems and all other
infrastructure subsystems required for a Network Element Facility to function
properly.
"Business Day" means any day other than Saturday or Sunday or
a day that is a public holiday in Argentina.
"Cable Trench" means a facility that holds a portion of fiber
optic cable and associated conduit and splicing xxxxxxxx and that, in the case
of subterranean construction is buried, and in the case of aerial construction
is attached to a structure such as a bridge.
"Change Order" has the meaning specified in Section 4.5.
"Change Proposal" has the meaning specified in Section 4.5.
"Change Request" has the meaning specified in Section 4.5.
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"Civil Work" means the performance of labor and furnishing of
materials necessary for the construction of a Network Element Facility,
including the Installation of all Building Infrastructure elements related to
such Network Element Facility, the demolition and renovation of existing
structures, and the laying of conduit and fiber optic cable and the splicing and
testing of such fiber optic cable, all in accordance with the Contract
Documents.
"Claim" has the meaning specified in Section 13.6.
"Claim Notice" has the meaning specified in Section 13.6.
"Completion Report" means, with respect to each Network
Element Facility, each Network Subsystem and each Functional Unit, a project
completion report prepared by Vendor and containing the following information:
(i) a summary of the results of Acceptance Tests with respect to such Network
Element Facility, Network Subsystem or Functional Unit, (ii) specifications,
data sheets, plans and drawing plans, (iii) customary documentation with respect
to the Subnetwork and such Functional Unit, Network Subsystem or Network Element
Facility, including, without limitation, "As Builts," (v) a Punch List and (vi)
all other information related to the Work hereunder reasonably requested by
Impsat.
"Configuration Engineering" means the engineering required to
establish configuration of a Network Element, including preparing component
inventory and layout drawings, Equipment labels, cable tray layout drawings,
drawings and specifications required by any Governmental Entity, "as-built"
drawings and Documentation, and the design, power distribution and supply for
each of the Network Elements.
"Contract Documents" means this Agreement, including all of
the Exhibits listed in Article I, as amended or supplemented from time to time.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "controlled" have meanings correlative thereto.
"Damages" has the meaning specified in Section 13.1(b)(i).
"Defects and Deficiencies," "Defects or Deficiencies" or
"Defective" means any one or a combination of the following or items of a
similar nature:
(a) when used with respect to the performance of Services,
such Services that are not provided in a workmanlike manner and in accordance
with applicable provisions of the Contract Documents;
(b) when used with respect to Work other than Services
(including without limitation Structures, materials, Equipment and Network
Software), such items that are not (i) new, of good quality and free from
improper workmanship and defects in accordance with the Contract Documents, good
procurement, manufacturing and construction standards and Applicable Laws, or
(ii) free from errors and omissions in design or engineering services in light
of such standards or Applicable Laws; or
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(c) in general, (i) Work that does not conform to the Contract
Documents, (ii) Work that is not free from corrosion, erosion, foundation
defects, subsidence or other degradation due to moisture, or (iii) any design,
engineering, start-up activities, materials, Structures, Equipment, or any
portion thereof, Network Software, tools, supplies, Installation or Training
that (1) does not conform to the Contract Documents, (2) has improper or
inferior workmanship, (3) would materially and adversely affect the ability of
the Network, the Subnetwork and/or any Functional Unit and/or any material part
thereof to meet any applicable provisions of the Contract Documents on a
consistent and reliable basis, or (4) would materially and adversely affect the
continuous operation of any Functional Unit, the Subnetwork as a whole, the
Network as a whole, or any material portion thereof.
"Directed Change" has the meaning specified in Section 4.5(c).
"Documentation" means (i) collectively, all applicable
documentation for the Network, the Subnetwork, any Functional Unit, any Network
Subsystem, any Network Element Facility, any Product and any material component
of any of the foregoing (including all Operating Manuals and Maintenance
Manuals), and (ii) any individual item(s) comprised in such documentation.
"Emergency Technical Assistance Services" or "ETAS" means the
provision of emergency technical assistance services to Impsat pursuant to
Exhibit I for the purpose of diagnosing and resolving a problem which adversely
affects the Network, the Subnetwork and/or any Functional Unit and/or a material
part, portion or component thereof, its operation and/or its service.
"Engineering" means all of the engineering and design work
required to be done by the Vendor in connection with the Network to ensure that
the operation of the Network conforms to the requirements of the Contract
Documents, including the Specifications and Standards, and includes without
limitation RF Engineering, Configuration Engineering, Network Interconnection
Engineering and Facilities Engineering.
"Equipment" means all equipment, hardware, materials and other
items of property which are required to construct the Subnetwork, each
Functional Unit and/or any portion thereof, and the NMS, together with all
embedded firmware and hardwired logic and all ancillary systems, in accordance
with the Specifications and Standards and the other provisions of the Contract
Documents, including, (i) as the context may require, additional equipment
required as a result of any Expansion(s) or enhancements or upgrades to any of
the foregoing, (ii) all equipment, hardware and other materials that are part of
the Building Infrastructure and (iii) all Telecommunications Equipment. For the
avoidance of doubt, the term "Equipment" does not include the Software Elements,
nor any Network Software other than embedded and non-downloadable firmware
stored in a semiconductor device or other hardwired logic that constitute an
integral part of any Item of Equipment.
"Event of Bankruptcy" means the commencement by or against
either Party of a voluntary or involuntary case or other proceeding seeking
liquidation, reorganization, concordata or other relief under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part or its property, or if either Party shall
consent
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to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or if
either party shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; provided, however, that with
respect to an involuntary case or proceeding brought against any Party, an Event
of Bankruptcy shall only occur if such case or proceeding is not dismissed
within sixty (60) days of being filed.
"Expansions" means any additional Products incorporated into
the Network, or Services related thereto arising from any modification by Impsat
after the date of this Agreement to the Specifications and Standards, the
Performance Criteria set forth in the Network Design Plan, or the Project
Milestones set forth in the Project Implementation Plan, that result in a change
to the Subnetwork and/or any Functional Unit and/or any material portion
thereof, including the extension or expansion of the Subnetwork and/or any
Functional Unit (i) into geographic areas outside of those covered by the
Functional Units identified in the Network Design Plan, or (ii) to increase
capacity, coverage, performance, service features or capabilities of the
Subnetwork and/or any Functional Unit or portion thereof beyond that specified
in the Contract Documents. Expansions shall not include any additional Products
or Services required to meet the Specifications and Standards.
"Facilities Engineering" means the engineering required to
design each Network Element Facility, including performing building layout and
preparing drawings and relevant specifications for the construction of the
buildings, towers, generators, Building Infrastructure, fiber optic cable,
conduit and splicing xxxxxxxx, and antennae support, and all other items
required to make the Network Element Facility functional in accordance with the
Network Design Plan and the Accommodation Plan and the other provisions of the
Contract Documents. Facilities Engineering does not include Configuration
Engineering.
"Facilities Preparation Services" means all Facilities
Engineering, Civil Work, Site Plan Architectural Work, Structural Architectural
Work and Utilities Work, in accordance with the requirements of the
Accommodation Plan and the other provisions of the Contract Documents.
Facilities Preparation Services does not include Site Acquisition.
"Final Acceptance" has the meanings specified in Section 5.7.
"Final Overall Network Acceptance" has the meaning specified
in Section 5.7(c).
"Final RF Engineering Plan" has the meaning specified in
Section 3.16.
"Final RF Review Period" has the meaning specified in Section
3.16.
"Force Majeure" means, with respect to any Party, any cause
which is beyond the reasonable control of such Party, including, but not limited
to, the elements; fires; explosions and other accidental events; acts of God
such as floods, earthquakes or tempests; riots; civil disturbances; wars; states
of belligerency or acts of the public enemy; general strikes; or the actions or
failure to act of any Governmental Entity.
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"Foreground IPR" means any IPR that is conceived, created or
developed or contracted to be developed by NNC and its Subsidiaries or
Subcontractors, or by Impsat and its Subsidiaries, in the course of performing
any Work or Services pursuant to this Agreement and the LOI.
"Functional Specifications" has the meaning specified in
Section 3.2.
"Functional Unit" shall mean any segment of the Subnetwork
described on Exhibit C or so labeled by the Parties, each of which shall be
capable upon the completion thereof of achieving In Revenue Service
independently from the rest of the Subnetwork.
"Governmental Entity" means any nation or government, any
state, province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Headend" means a certain type of Network Element Facility
described and identified on Exhibit G.
"ICC" means the International Chamber of Commerce.
"Impsat" has the meaning specified in the prefatory paragraph
to this Agreement.
"Impsat Direct Competitors" means business entities that
provide telecommunications services similar to and in competition with the
services provided by Impsat.
"Impsat License" has the meaning specified in Section 7.1(c).
"Impsat Project Manager" has the meaning specified in Section
4.1.
"Impsat-Provided Equipment" means the Equipment listed in
Exhibit D which Impsat has the responsibility to provide to Vendor pursuant to
Section 3.7 for integration into the Subnetwork, and all necessary equipment and
services to link (via satellite or some other means) the Subnetwork to the
Companion Subnetwork.
"In Revenue Service" means the commercial operation of the
Network, the Subnetwork or a Functional Unit thereof, exclusive of operation for
purposes of conducting Acceptance Tests.
"Inspector" means any qualified Person designated as an
authorized representative of Impsat assigned to make inspections of the Work, or
of the labor, materials, Services and Products furnished or being furnished by
the Vendor or by any of its Subcontractors at any Sites where the Vendor or any
such Subcontractor is delivering the Work.
"Installation" means the performance and supervision by the
Vendor of the installation of Products within the Subnetwork and/or any
Functional Unit.
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"Intellectual Property Rights" or "IPR" means any and all
rights in any invention, discovery, improvement, utility model, copyright,
industrial design or mask work right, and any and all rights of whatever nature
in computer software and data, trade secrets, know-how, drawings,
specifications, documents, plans, reports, diagrams and other data that has been
reduced to writing (whether in physical or electronic form), and any and all
intangible rights and privileges of a nature similar to any of the foregoing, in
every case in any part of the world and whether or not registered, and shall
include all rights in any applications and granted applications for any of the
foregoing.
"Interoperability" means (i) the ability of the Network, the
Subnetwork and/or any Functional Unit and/or any material portion or component
thereof to fully interconnect and successfully operate with the equipment and
software of the PSTN, public data networks and the internet (and/or any material
portion or component thereof), provided that the interfaces of such networks
comply with international telecommunications standards and (ii) the ability of
each of the Products to operate with one another and to operate with and within
the Network, all in conformance with the requirements of the Contract Documents.
"Item" means any item listed in the Product List and Pricing
Schedule, any item at any time listed in any of the Vendor's price lists, any
other item of Equipment or element of the Network Software (including any such
item procured from a third-party supplier), and any modifications, enhancements,
updates or other revisions of any kind in any such item, or spare parts with
respect to any of the foregoing.
"Key Persons" has the meaning specified in Section 4.7(a).
"Losses" means any liability, damages, judgment, settlement
and expenses (including reasonable attorneys' fees and disbursements and the
costs of investigations and appeals).
"Maintenance Manuals" means the manuals prepared by or to be
prepared by the Vendor and the Subcontractors and to be delivered to Impsat
pursuant to Section 3.14 containing detailed procedures and specifications for
the ongoing maintenance of the Network and/or any part thereof.
"Monthly Progress Report" means a progress report of the type
described in Exhibit D.
"Network" means the telecommunications network referred to in
the Recitals hereto together with the Network Management System and the other
components and features specified herein and in the other Contract Documents.
"Network Design Plan" has the meaning specified in Section
3.1.
"Network Element" means one or more Items of Equipment or
Network Software that is part of the Subnetwork and/or any Functional Unit
thereof.
"Network Element Facility" means the Structures, improvements,
foundations, roads, grading, fencing, Building Infrastructure and other
facilities necessary to house or hold any Network Element and any related
Equipment to be located at a particular Site, and all
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such Network Elements and related Equipment located therein, including without
limitation each Headend, Shelter, Node and Cable Trench.
"Network Interconnection Engineering" means all the
engineering required to connect all Network Elements within the Subnetwork among
themselves and to other telecommunications networks, including the Companion
Subnetwork.
"Network Management System" or "NMS" means all Equipment and
Software required to provide functionality including, but not limited to, all
network fault management, network management, performance management,
configuration management, trouble ticket management, control, and monitoring
functions for one or more Functional Units, the Subnetwork as a whole, and the
Network as a whole.
"Network Software" means all computer software and firmware
furnished to Impsat hereunder for use with the Network, the Subnetwork or any
Equipment, including computer programs contained on a magnetic or optical
storage medium, in a semiconductor device, or in another memory device or system
memory or supplied on any other storage medium.
"Network Subsystem" shall mean any segment of a Functional
Unit described on Exhibit C, each of which may be comprised of various Network
Element Facilities.
"NNCPs" means Nortel Networks Corporation Practices, which are
the Vendor's standard documentation containing descriptive, operating,
installation, engineering and maintenance information for Equipment manufactured
by the Vendor and the services provided by such Equipment, as amended from time
to time by Vendor with respect to all of Vendor's customers.
"Node" means a certain type of Network Element Facility
described and identified on Exhibit G.
"Operating Manuals" means the manuals prepared or to be
prepared by the Vendor and the Subcontractors and to be delivered to Impsat
pursuant to Section 3.13 containing detailed procedures and specifications for
the ongoing operation of the Network and/or any part thereof.
"Operator" means Impsat or any Person with whom Impsat
contracts to operate the Network, the Subnetwork or any Functional Unit thereof.
"Outside Date" means thirty (30) calendar days subsequent to
the execution of the Vendor Financing Agreement.
"Parties" has the meaning specified in the prefatory paragraph
to this Agreement.
"Performance Bond" has the meaning specified in Section 4.13.
"Performance Criteria" has the meaning specified in Section
3.1.
"Permitted IPR Uses" has the meaning specified in Section
7.2(a).
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"Person" means an individual, partnership, limited
partnership, corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Entity or other entity
of whatever nature.
"Preliminary Site Acquisition" means the services to be
performed by or on behalf of Vendor necessary for identifying and presenting
Site alternatives to Impsat as set forth in Section 3.17.
"Proceeding" means any third-party claim, demand, action, suit
or proceeding of any nature.
"Product List and Pricing Schedule" has the meaning specified
in Section 9.1.
"Products" means, collectively, the Equipment, the NMS, and
the Network Software provided or to be provided by the Vendor and/or any
Subcontractor pursuant to and in accordance with the terms of this Agreement.
"Product Support Services" has the meaning specified in
Section 6.3.
"Professional Services" has the meaning specified in Section
3.3(a).
"Project" has the meaning specified in the prefatory paragraph
to this Agreement.
"Project Countries" means Argentina, Brazil, Colombia,
Ecuador, Mexico, the United States, Venezuela, Chile, Peru, Uruguay, Paraguay,
Bolivia, Panama, and such other countries in the Americas as Impsat may add to
the Project, but excluding countries (other than Argentina and Brazil) where
either Party is prohibited from transacting business or importing/exporting
products or services.
"Project Implementation Plan" has the meaning specified in
Section 3.1.
"Project Milestones" means the collective reference to the
principal project milestone dates and intervals set forth in the Project
Implementation Plan.
"Provisional Acceptance" has the meanings specified in Section
5.6.
"Public Switched Telephone Network" or "PSTN" has the meaning
specified in Section 3.3(b)(ii).
"Punch List" has the meaning specified in Section 5.4.
"Punch List Work" means the items of Work set forth in any
Punch List.
"QAO" has the meaning specified in Section 4.11.
"Reviewers" has the meaning specified in Section 3.12(a).
"RF" means radio frequency.
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"RF Engineering" means radio frequency engineering required in
connection with the design of any wireless communication element of the
Subnetwork, any Functional Unit or any Network Element.
"Rights of Way" means any conditional use arrangement,
easement, rights of way or similar rights for railroads, roadways, airways,
rivers or other locations over or through which a portion of the Subnetwork will
pass.
"Services" means, collectively, all of the services to be
provided by the Vendor, directly or indirectly through a third party contractor,
as part of the Work pursuant to the terms of this Agreement, including
Professional Services, Civil Work, Facilities Preparation Services, Preliminary
Site Acquisition, Site Plan Architectural Work, Configuration Engineering, RF
Engineering, Network Interconnection Engineering, Product Maintenance Services,
Product Support Services, OA&M Services, System Support Services, the Site
Acquisition tasks to be performed by Vendor, and other repair services as
provided in the Contract Documents, performed in accordance with the terms of
the Contract Documents, including the Specifications and Standards.
"Services and Support Plan" has the meaning specified in
Section 6.2(b).
"Shelter" means a certain type of Network Element Facility
described and identified on Exhibit G.
"Shipment Delay Request" has the meaning specified in Section
4.4.
"Site" means any physical location where a Network Element is
to be or is located.
"Site Acquisition" means the services to be performed by or on
behalf of Impsat necessary for acquiring sufficient rights to each Site as set
forth in Section 3.17.
"Site Acquisition Substantial Completion" means, with respect
to any Functional Unit, the point at which Impsat will have acquired, by
purchase, lease or otherwise through Site Acquisition, rights to a sufficient
number of Sites within the geographic area to be covered by such Functional Unit
such that the Performance Criteria specified in the Specifications and Standards
applicable to such Functional Unit would be substantially satisfied in the
reasonable opinion of Impsat, subject to the reasonable concurrence of the
Vendor.
"Site Plan Architectural Work" means the preparation by Vendor
of architectural and/or engineering drawings, plans and/or specifications
necessary to obtain land use permits and/or approvals, building permits and/or
approvals and/or conditional use permits, and any other Applicable Permits for
any given Network Element Facility.
"Software Element" has the meaning specified in Section 7.2.
"Spares" has the meaning specified in Section 6.1.
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"Specifications and Standards" means the collective reference
to all specifications, performance criteria and requirements governing the
design, Engineering, Products, Facilities Preparation Services, Installation and
Services to be performed or supplied by the Vendor in connection with the
Subnetwork, the Network and any Expansions, amendments, modifications and/or
other revisions thereto made in accordance with the terms of the Contract
Documents, including the specifications, performance criteria and requirements
set forth in the Functional Specifications, the Technical Specifications, the
Performance Criteria and the requirements of Applicable Laws, and in the case of
Products manufactured by the Vendor, the NNCPs.
"Structural Architectural Work" means the preparation of all
architectural drawings and blueprints relating to the structural specifications
for a Network Element Facility.
"Structure" means any building, tower, supporting structure
and any other improvement to real property.
"Subcontractor" means a contractor, vendor, supplier, licensor
or other Person hired by Vendor or any other Subcontractor of the Vendor who has
been hired to assist in certain specified areas of Vendor's performance of its
obligations under this Agreement, including performance of any part of the Work.
"Subnetwork" has the meaning specified in the prefatory
paragraph to this Agreement.
"Subsidiary" of a Party means any corporation or other legal
entity in which that Party directly or indirectly owns or otherwise Controls
more than fifty percent (50%) of the voting stock or shares.
"System Support Services" means those Services offered by the
Vendor relating to System design, enhancement and optimization.
"Tax" means any tax, duty, levy, charge, assessment or custom
(including, without limitation, any sales, use, excise, wage and employment tax,
VAT, octroi duty, recording, document and fiscal stamps and fees) that is
imposed or collected by any taxing authority or agency (domestic or foreign).
"Technical Specifications" has the meaning specified in
Section 3.2.
"Technical Support Provisions" means the provisions relating
to technical assistance to be provided by the Vendor as set forth in Exhibit I
attached hereto.
"Telecommunications Equipment" means Equipment and associated
Software Elements to be used to provide telecommunications services, but
specifically excluding all Building Infrastructure.
"Term" has the meaning specified in Section 16.1.
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"Training" means the processes of training and knowledge
transfer described in the Training Provisions and the other applicable
provisions of the Contract Documents.
"Training Provisions" means the procedures and courses
described in Exhibit K attached hereto.
"Utilities Work" means the installation of electric, water,
gas and other utilities and telephone facilities for voice communications in the
construction and operation of Network Element Facilities at the Sites.
"VAT" means the Argentine Impuesto al Valor Agregado.
"Vendor" has the meaning specified in the prefatory paragraph
to this Agreement.
"Vendor-Controlled Location" has the meaning specified in
Section 3.11(a).
"Vendor Direct Competitors" means business entities that
design, manufacture, sell and service telecommunications products similar to and
in competition with products and services manufactured or provided by Vendor.
"Vendor Financing Agreement" shall mean the financing
agreement to be entered into between Vendor, as administrative agent and
collateral agent, the other lenders party thereto from time to time, and Impsat,
as borrower, in connection with the financing by the Vendor of the transactions
contemplated hereby.
"Vendor IPR" has the meaning specified in Section 7.2(a).
"Vendor License" has the meaning specified in Section 7.2(a).
"Vendor Project Manager" has the meaning specified in Section
4.2.
"Warranty Period" has the meaning specified in Article XII.
"Work" means all Products and Services to be provided,
procured or performed by the Vendor pursuant to the terms and conditions of the
Contract Documents, as necessary to design, establish and operate the Subnetwork
(and/or any Expansions) on behalf of Impsat, on a "turnkey" basis and on the
terms and conditions set forth herein, including any and all Products and
Services which are not expressly included by the terms of this Agreement and
which are reasonably required for such turnkey provision of the Subnetwork
(and/or any Expansions).
"Year 2000 Compliant" means that a product shall properly
perform any type of operation with respect to date data before, on or after
January 1, 2000.
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ARTICLE III.
SCOPE OF WORK AND RESPONSIBILITIES
3.1 Scope of Work.
On the terms and subject to the conditions set forth herein,
Impsat agrees to purchase from the Vendor, and the Vendor agrees to sell, supply
and deliver to Impsat, all Work necessary for: (i) providing to Impsat the
Subnetwork and all related ancillary systems and supporting services, on a
"turnkey" basis, in accordance with the network design plan prepared by the
Vendor and attached hereto as Exhibit A (the "Network Design Plan"), the project
plan and schedule attached hereto as Exhibit D (the "Project Implementation
Plan") and the Specifications and Standards and the other provisions of the
Contract Documents; and (ii) achieving the final milestone as set forth in the
Master Plan contained in the Project Implementation Plan. In particular, the
Vendor shall manage and complete the Work in accordance with the Project
Milestones set forth in the Project Implementation Plan, and the Subnetwork's
operation shall consistently satisfy or exceed the performance criteria set
forth in the Network Design Plan during the Term of this Agreement (the
"Performance Criteria"). The Vendor's responsibility for the design,
construction and operation of the Subnetwork and the adequacy thereof shall not
in any way be diminished by Impsat's acceptance of Vendor's guidance or
recommendations as to engineering standards and design specifications, or by
Impsat's suggestions or recommendations on any aspect of the design. All
Services, including but not limited to the Installation and the supervision of
the Installation and integration processes, to be provided within Argentina
shall be performed by Nortel-Argentina or its subcontractors.
3.2 Network Overview.
A description of the Subnetwork's functional specifications,
principal features and services to be provided is set forth in the Network
Design Plan. The Subnetwork shall include all such functions, features and
services set forth in the Network Design Plan and in the other Contract
Documents, together with all necessary ancillary systems and supporting services
necessary therefor (excluding the features that are expressly and conspicuously
labeled as optional). All of such functional specifications, features and
services, together with the technical specifications for each Item of Product
that are set forth in any Documentation supplied by the Vendor relating to such
Item (collectively, "Technical Specifications"), are collectively referred to
herein as the "Functional Specifications."
3.3 Design, Engineering and Maintenance Services.
(a) Until Final Acceptance of the Subnetwork has been achieved, the Vendor shall
provide, as an integral part of the Work to be performed by the Vendor
hereunder, all Engineering and other design Services necessary to update,
adjust, modify and maintain the Network Design Plan in order to complete the
Subnetwork (before any Expansions or Change Orders) as described in Exhibit A
("Professional Services") in conformity with the Specifications and Standards
and the other provisions of the Contract Documents, including the Engineering
and design necessary to describe and detail the Subnetwork. Vendor shall be
compensated for any additional engineering and maintenance services agreed to
pursuant to Section 4.5 in an amount agreed to pursuant to Section 4.5.
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(b) As part of the Work, the Engineering to be performed by
the Vendor to establish the Subnetwork in accordance with the Contract Documents
shall include without limitation the following elements:
(i) RF Engineering and electrical engineering
and design services;
(ii) Network Interconnection Engineering for
network interconnection design with the
public switched telephone network ("Public
Switched Telephone Network" or "PSTN")
(including interconnection through the PSTN
with other service providers) at each
designated interconnection point or as
otherwise provided in the Network Design
Plan;
(iii) civil engineering, architectural services,
Preliminary Site Acquisition, Vendor's Site
Acquisition duties, Facilities Engineering,
Facilities Preparation Services,
Configuration Engineering and Civil Work
required to design, construct and install
all Structures required for the Subnetwork
infrastructure, including co-location
facilities, as more particularly set forth
in the Accommodation Plan; and
(iv) all other engineering required to achieve
integration and Interoperability at the
Equipment level, the Network Element
Facility Level, the Functional Unit level,
the Subnetwork level and the Network level.
(c) As part of the Work, the Vendor shall perform all
Engineering which may be required to meet all interface requirements among all
Equipment contained in the Subnetwork (including the Impsat-Provided Equipment)
and between the Subnetwork and the Companion Subnetwork.
(d) In carrying out the engineering and design services
required hereunder, the Vendor shall be solely responsible for identifying any
functions or services required to be provided or obtained by Impsat from third
parties in connection with the operation of the Subnetwork after Final
Acceptance thereof, defining all points of interface between the Subnetwork and
such functions or services, and identifying and providing appropriate means and
methodologies to remedy any Defects or Deficiencies in the Network Design Plan.
(e) The metric system of measurement shall be used in
connection with all Work provided by Vendor hereunder and all Impsat-Provided
Equipment.
3.4 Equipment, Structures and Network Software.
(a) The Vendor shall design, manufacture, procure, deliver and
install all Equipment and perform all Civil Work necessary for the establishment
and operation of the Subnetwork in accordance with the Network Design Plan, all
other applicable Contract Documents and all Applicable Laws. All Equipment
supplied by the Vendor shall be newly manufactured and of Vendor's latest
vintage as set forth in Exhibit L, all Structures shall be constructed of new
materials, and both the Equipment and Services shall be warranted as set
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forth in Article XII. In addition, all Products obtained from third-party
suppliers shall be obtained in compliance with Section 4.11(b). The principal
Subnetwork components and the applicable unit prices therefor shall be as
described in the Product List and Pricing Schedule.
(b) The Vendor shall furnish all drawings, specifications,
design data, preliminary arrangements, outline drawings and "as built" drawings
of all Equipment, Structures and fabricated materials to be supplied under this
Agreement and all other information as required and in sufficient detail to
indicate that such Equipment, Structures and fabricated materials comply with
the Specifications and Standards and the other provisions of the Contract
Documents. Vendor shall deliver a detailed description of each Software Element
contained in the Subnetwork, including its location in the Subnetwork as built,
and a history of all Software Element versions used in each such location. In
addition, Vendor shall furnish such other information as required and in
sufficient detail to indicate that the Network Software complies with the
Specifications and Standards and the other provisions of the Contract Documents.
(c) All Equipment delivered and installed as part of the
Subnetwork shall include all required Network Software and Software Elements,
and all other necessary components to enable such Items of Equipment to perform
in accordance with the applicable provisions of the Contract Documents and to
enable the full Installation, testing, maintenance, interconnection, operation
and administration of the Subnetwork and the entire Network (including, without
limitation, the NMS). All Network Software and Software Elements supplied by the
Vendor shall be the then-current release, and Vendor shall update the delivered
Network Software as needed to ensure that all portions of the Subnetwork are
using the same release versions at the time of Final Overall Network Acceptance.
All such Network Software and Software Elements shall be warranted as provided
in Article XII and shall be listed in reasonable detail in the shipping
documents, invoices or other documentation therefor.
3.5 Installation and Commissioning.
The Vendor shall be fully responsible for performing all RF
Engineering, Facilities Engineering, Preliminary Site Acquisition, Configuration
Engineering and Civil Work required for the design, construction and integration
of all required Network Element Facilities at each Site in accordance with the
Network Design Plan and the Final RF Engineering Plan for each Functional Unit,
the Installation of all Products and the placing into service of all such
Network Element Facilities and Products comprising the Subnetwork upon
completion of construction and Installation as aforesaid and testing as
described below. The Vendor shall carry out Installation, testing, integration,
optimization, commissioning and in service activation of the Subnetwork and the
entire Network (together with all related ancillary hardware and software
elements), in accordance with the Project Implementation Plan, the Network
Design Plan and the Final RF Engineering Plan. The Vendor shall provide all
materials, labor and tools required for construction, Installation, testing,
commissioning and optimization of the Subnetwork and Network as a whole.
3.6 Responsibilities of Vendor -- General.
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Without limiting the generality of Vendor's obligation to sell, supply
and deliver to Impsat all Work necessary for providing to Impsat the Subnetwork
and all related ancillary systems and supporting services, on a "turnkey" basis,
Vendor's responsibilities shall include those listed in this Section 3.6. All
Work, including but not limited to the Installation and the supervision of the
Installation process, to be provided within Argentina shall be performed by
Nortel-Argentina or its subcontractors, and shall be performed in accordance
with all Applicable Laws.
(a) Vendor shall have the following responsibilities related to the
construction of required facilities at each Site:
(i) creating, supervising and maintaining safety precautions and
programs for all Sites, in compliance with relevant
regulations regarding safety of persons or property and
protection against injury, damage or loss;
(ii) taking reasonable action to prevent, avoid and mitigate
injury, damage and loss in the event of any emergency
endangering life or property;
(iii) performing all security services necessary to ensure the
safety and security of all Products, all Impsat-Provided
Equipment and all facilities at each Site prior to the earlier
of the date of In Revenue Service of the Functional Unit in
which such Site is included and Final Acceptance of the
Subnetwork; and
(iv) providing, at all reasonable times, on reasonable prior notice
and subject to the provisions of Section 3.12, access to
representatives of Impsat (x) to the Vendor's plants,
premises, storage and deposit areas, already assembled or in
operation and to any other places or areas occupied by the
Vendor (or its Subcontractors, as far as reasonably
practicable) in connection with the Installation and
commissioning of the Subnetwork and (y) to documentation
related to compliance with applicable labor laws by Vendor and
its Subcontractors;
(v) with respect to any Site which also houses other operations of
Impsat or any of its Subsidiaries (unrelated to the
Subnetwork), ensuring that the Vendor's work in connection
with the Subnetwork does not create unreasonable levels of
noise, dust or other disruptions to such other operations;
(vi) obtaining basic electrical current hook-up to the Sites;
(vii) obtaining all Applicable Permits with the relevant entities
for the construction of the Sites and obtaining the necessary
permits to provide electrical current, water, gas and other
utilities to the Sites; and
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(viii) Complying with all Applicable Laws relating to chemical
substances, including the presence, storage, use, release and
other handling of toxic and hazardous substances during the
construction at each Site, provided, however, that Vendor, its
Subsidiaries and Affiliates shall not be liable for any
pre-existing violations of Applicable Laws by third parties,
whether now known or not yet discovered.
(b) Vendor shall have the following responsibilities arising out of, or
in the course of, or caused by, its performance of this Agreement:
(i) Preliminary Site Acquisition and acquiring those Sites that
Impsat has selected pursuant to the terms contained herein;
(ii) keeping the Subnetwork free from any and all claims, liens,
charges or encumbrances arising out of or in connection with
performance by any agent, employee, Subcontractor or other
Person for whom the Vendor is responsible;
(iii) obtaining at Vendor's sole cost and expense all Applicable
Permits;
(iv) obtaining all necessary Rights of Way and paying all
administrative costs associated therewith;
(v) complying with all Applicable Laws during the construction of
Network Element Facilities and the Installation and
commissioning of the Subnetwork, and obtaining and complying
with all Applicable Permits (it being agreed that Impsat shall
cooperate as may be reasonably requested in obtaining all such
Applicable Permits as provided in Section 10.4);
(vi) ensuring that the Vendor and its Subcontractors are and remain
eligible under all Applicable Laws and Applicable Permits to
perform the Work under this Agreement in the various
jurisdictions involved;
(vii) obtaining any export and import authorizations that are needed
to allow Impsat to use and enjoy in Argentina the products,
information, services and training to be provided hereunder;
and
(viii) providing Impsat with at least ninety (90) days prior written
notice of the date on which Impsat is required to provide the
link between the Subnetwork and the Companion Subnetwork
pursuant to Section 3.7(n).
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(c) The Vendor shall execute and deliver all further instruments and
documents, and take all further actions that may be necessary, in order to
enable the Vendor to complete performance of the Work or to effectuate the
purposes and intent of this Agreement.
3.7 Responsibilities of Impsat -- General.
Impsat shall have the following responsibilities arising out of, or in
the course of, or caused by, the performance of this Agreement:
(a) Impsat's Site Acquisition tasks referred to in Section 3.17;
(b) paying all costs and expenses, including all Taxes and fees,
associated with the purchase of Rights of Way, but excluding any of Vendor's
administrative costs and expenses associated with obtaining such Rights of Way;
(c) providing Vendor with the Impsat-Provided Equipment listed in
Exhibit D in the quantities, to the specifications and within the timeframe
stipulated in the Project Implementation Plan;
(d) with respect to any Site owned or leased by Impsat, performing
required site preparations as set forth in the Accommodation Plan not later than
the dates specified therein or in the Project Implementation Plan;
(e) with respect to Sites that are located at premises owned or leased
by Impsat, taking such steps as shall be reasonable under the circumstances to
limit access by unauthorized personnel to the areas of such Sites housing
Equipment; provided, however, that this responsibility on the part of Impsat
shall not limit or reduce the safety and security obligations of Vendor pursuant
to section 3.11;
(f) if required for any changes to day one of the Network, upon the
reasonable request of Vendor, providing Vendor with specific data and
information related to the proposed operation of the Network necessary for
Vendor to design the Network and complete the Work, including data and
information related to customer traffic, distribution, services, business plans,
marketing and sales plans, legacy systems, Site Acquisition and Rights of Way;
(g) informing Vendor in a timely manner of any changes or updates to
the information Impsat is required to provide under this Section 3.7;
(h) providing Vendor within a reasonable time with necessary responses
and, when appropriate, approvals of, Documentation, Acceptance Test Procedures
and Acceptance Test results, and all other required approvals as set forth in
Exhibit D to enable Vendor to design, engineer, implement, operate and maintain
the Network;
(i) satisfying Impsat's payment obligations pursuant to Article IX;
(j) taking reasonable action to prevent, avoid and mitigate injury,
damage and loss in the event of any emergency endangering life and/or property;
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(k) obtaining all licenses and consents required for the conduct of
Impsat's business and complying with all Applicable Laws, except to the extent
that such compliance is Vendor's responsibility as provided in this Agreement or
the other Contract Documents;
(l) providing Vendor and its Subcontractors with timely access to
appropriate Impsat personnel and to facilities or areas that are not Sites for
purposes of facilitating the Work; provided, however, that Subcontractors who
are also Impsat Direct Competitors shall not have such access without the prior
written consent of Impsat, which consent shall not be unreasonably withheld or
delayed; provided, further, that an Impsat authorized representative must be
present whenever an Impsat Direct Competitor visits one of Impsat's facilities
or areas that are not otherwise Sites;
(m) during the Term of this Agreement, providing Vendor and its
Subcontractors with access to the Sites that are located at premises owned or
leased by Impsat; provided, however, that following In Revenue Service of a
Functional Unit, Subcontractors who are also Impsat Direct Competitors shall not
have such access to such Functional Unit without the prior written consent of
Impsat, which consent shall not be unreasonably withheld or delayed; provided,
further, that an Impsat authorized representative must be present whenever an
Impsat Direct Competitor visits such Functional Unit; and
(n) upon ninety (90) days prior written notice by Vendor, providing at
Impsat's sole cost and expense the equipment and services necessary to link (via
satellite or some other means) the Subnetwork to the Companion Subnetwork, and
integrating both the Subnetwork and the Companion Subnetwork with such link.
3.8 Responsibilities - Applicable Permits.
(a) Vendor shall have the responsibility for obtaining at Vendor's sole
cost and expense all Applicable Permits on Impsat's behalf. Upon written request
of Vendor, Impsat shall reasonably cooperate with and assist Vendor in its
obligations to obtain all Applicable Permits, to the extent that Impsat's
cooperation and assistance are necessary for Vendor to expeditiously and
cost-efficiently obtain such Applicable Permits. Impsat agrees to respond
reasonably promptly to any such request from Vendor. Vendor will inform Impsat
as to any such conditions or responsibilities that will be contained in any
Applicable Permit that are not ordinary and routine (based on industry standards
and local law) and obtain Impsat's consent thereto prior to arranging for any
such Applicable Permit. Impsat (and its representatives and counsel) may, at its
sole option, participate in the process of Vendor's obtaining any Applicable
Permits to the extent Impsat deems reasonably necessary; provided, that any such
participation shall not relieve or alter any of Vendor's obligations under this
Agreement with respect to obtaining all Applicable Permits.
(b) Vendor will cause all Applicable Permits ultimately required to be
held by Impsat and not issued in the name of Impsat to be assignable to Impsat
and to be assigned to Impsat at the time title to the Subnetwork (or any
Functional Unit) is transferred to Impsat pursuant to this Agreement.
(c) Any delay in obtaining or failure to obtain any Applicable Permit
shall not constitute a Force Majeure; provided, however, that a Governmental
Entity's refusal or failure to grant an Applicable Permit shall constitute a
Force Majeure only if such refusal or
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failure occurs after Vendor has made all reasonable efforts to obtain such
Applicable Permit, including diligently pursuing all available appeals of any
denial thereof, and such refusal or denial is not otherwise attributable to
Vendor.
(d) Except for unforeseen changes in Applicable Laws following the
commencement of Work on a specific Network Element Facility, Vendor shall be
responsible for the payment of any and all costs incurred as a result of the
need to vary design, drawings, plans or procedures with respect to such Network
Element Facility to comply with any of the circumstances set forth in this
Section 3.8; provided, however, that Vendor is not responsible for any such
additional costs generated by Change Orders or Directed Changes requested by
Impsat pursuant to Section 4.5.
(e) Within 30 days after the date of execution of this Agreement,
Vendor will deliver to Impsat a detailed list of Applicable Permits that to its
knowledge are required to be obtained under current law in order to complete the
Work and shall update such list from time to time if it becomes aware of changes
in Applicable Permit requirements. Such list, as updated from time to time,
shall set forth the projected dates of filing for such Applicable Permits and an
estimate of when such Applicable Permits are expected to be obtained.
3.9 Engineering Certification.
Vendor shall ensure that all Engineering for which certification is
required under Applicable Laws is performed and certified by Vendor or
Subcontractor personnel who are professional engineers licensed or otherwise
properly qualified to perform such Engineering in all appropriate jurisdictions.
3.10 Interoperability.
The Vendor shall achieve Interoperability for all Network Elements,
including Impsat-Provided Equipment, and all Functional Units upon the
applicable Project Milestones specified in the Project Implementation Plan.
3.11 Safety and Security.
(a) To the extent that, and for as long as, the Vendor is in control of
any Site within the Subnetwork or any Functional Unit (such a Site, a
"Vendor-Controlled Location"), the Vendor shall be solely responsible for
initiating, maintaining, and supervising all safety precautions and programs in
connection with all such Vendor-Controlled Locations. The Vendor shall comply
with all Applicable Laws and Applicable Permits, as well as the Specifications
and Standards and other provisions of the Contract Documents bearing on safety
of persons or property or protection against injury, damages or loss. The
Parties acknowledge and agree: (i) until Final Acceptance of the Subnetwork or
In Revenue Service of a given Functional Unit is achieved the Vendor shall be
deemed to be in control of all Products, all Impsat-Provided Equipment, tools,
designs, Structures (or applicable portions thereof) housing Equipment, and/or
Engineering at, in or upon all Sites within such Functional Unit; and (ii) upon
the earlier of Final Acceptance of the Subnetwork or In Revenue Service of such
Functional Unit, all Sites relating to such Functional Unit shall be deemed to
be under the control of Impsat or the Operator of such Functional Unit for
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purposes of safety and security, without prejudice to the Parties' rights and
responsibilities as set forth in Exhibit J.
(b) During the course of the Work, the Vendor shall perform the
security services necessary to ensure the safety and security of all
Vendor-Controlled Locations and the Equipment and/or other materials or designs
relevant to the Work located thereon.
3.12 Inspection Right.
(a) Subject to subsections (c) and (d) of this Section 3.12, Impsat and its
agents and representatives, including Inspectors (collectively "Reviewers"),
shall at all reasonable times with prior notice to Vendor or Subcontractors, and
without unreasonably interfering with the Work, have access to the Sites where
the Vendor (or any of its Subcontractors, as far as reasonably practicable) is
carrying out the Work, in order to, at the Reviewers' expense:
(i) inspect all Items of Products and any materials,
components (whether finished or otherwise) or
manufacturing and quality control processes used
during and/or after their manufacturing, in order to
determine whether materials, components or processes
are in compliance with the applicable provisions of
the Contract Documents; and
(ii) inspect the Civil Work and the Installation of
Products and Impsat-Provided Equipment being
performed by the Vendor at any Site in order to
determine whether the Vendor's Facilities Preparation
Services and construction and Installation work at
such Site conform to the applicable provisions of the
Contract Documents.
No such inspection by the Reviewers shall affect in any way the warranties or
other obligations of the Vendor under this Agreement.
(b) Whenever any Reviewer chooses to exercise these rights, the Vendor
shall:
(i) with respect to the inspection of the manufacturing
of Products, provide all such rights of access,
during normal business hours, to the Vendor's plants,
premises, storage and deposit areas, facilities and
offices, sources of materials, Equipment being
assembled, already assembled or in operation,
Equipment being performance-tested or tested to the
Vendor's specifications and to any other places or
areas occupied by the Vendor in connection with the
Work, and afford such cooperation as may be
reasonably required by the Reviewers to conduct such
inspection (providing the Reviewers with temporary
office space and services to the extent necessary);
and
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(ii) with respect to the inspection of the Vendor's or its
Subcontractors' construction and Installation work,
ensure that the Vendor's or its Subcontractors'
personnel at the applicable Site provides to the
Reviewers all reasonable access and cooperation.
(c) The provisions of subsection (a) of this Section 3.12 shall not
give Vendor Direct Competitors the right to access the Vendor's or its
Subcontractors' facilities or areas that are not otherwise Sites, without the
prior written consent of the Vendor, such consent not to be unreasonably
withheld or delayed. A Vendor authorized representative must be present whenever
a Vendor Direct Competitor visits one of Vendor's or its Subcontractors'
facilities or areas that are not otherwise Sites. In addition, the provisions of
subsection (a) of this Section 3.12 shall not give an Inspector the right to
assemble, disassemble, rectify, modify or undertake any task unrelated to
inspection with respect to any Equipment or Civil Work so long as such Equipment
or Civil Work remains under the responsibility of Vendor pursuant to the terms
of this Agreement, without the prior written consent of the Vendor.
(d) Notwithstanding anything herein to the contrary, the right of
access of the Reviewers pursuant to this Section shall be subject to: (i) the
reasonable confidentiality, safety and security requirements relating to each
site subject to such right of access; and (ii) such Reviewers' non-interference
with the Work and other work being performed at such sites and not materially
affecting the Vendor's productivity.
(e) Any exercise of or failure to exercise any right to Impsat to
inspect, audit, visit or to observe any part of the Work shall not be construed
as limiting any obligation of Vendor hereunder.
3.13 Operating Manuals.
The Vendor shall provide Impsat with Operating Manuals in accordance
with this Section as soon as they are reasonably available but in no event later
than the earlier to occur of (i) the date agreed to by the Parties or (ii)
thirty (30) days prior to Provisional Acceptance of any Functional Unit. The
Vendor shall provide Impsat with four (4) printed sets and two (2) electronic
versions on CD-ROM of the Operating Manuals for each Functional Unit and for the
entire Subnetwork, and Impsat shall be permitted to make additional copies of
such Operating Manuals as reasonably needed for use by Impsat or an Operator to
operate each Functional Unit and the entire Subnetwork. The Operating Manuals
shall be prepared in accordance with the requirements of Section 3.15 and the
other provisions of the Contract Documents, and in sufficient detail to
accurately represent the Subnetwork and all of its component Network Elements as
constructed and shall specify clear procedures for operation and management of
the Network. Operating Manuals with up to date drawings, specifications and
design sheets shall be available for the Training as set forth in the Training
Provisions. As of the time of Final Overall Network Acceptance, Vendor shall
provide updates, if applicable, to all Operating Manuals to address the
operation of the Network overall, including providing "as built" drawings.
3.14 Maintenance Manuals.
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The Vendor shall provide Impsat Maintenance Manuals in accordance with
this Section as soon as they are reasonably available but in no event later than
the earlier to occur of (i) the date agreed to by the Parties or (ii) thirty
(30) days prior to Provisional Acceptance of any Functional Unit. The Vendor
shall provide Impsat with four (4) printed sets and two (2) electronic versions
on CD-ROM of the Maintenance Manuals for each Functional Unit and for the entire
Subnetwork, and Impsat shall be permitted to make additional copies of such
Maintenance Manuals as reasonably needed for use by Impsat or an Operator to
properly maintain each Functional Unit and the entire Subnetwork. The
Maintenance Manuals shall be prepared in accordance with the requirements of
Section 3.15 and the other provisions of the Contract Documents, and in
sufficient detail to accurately represent the Network and all of its component
Network Elements as constructed and will set forth procedures for inspection and
maintenance of the Subnetwork and any part thereof. Maintenance Manuals with up
to date drawings, specifications and design sheets shall be available for the
Training set forth in the Training Provisions. The Maintenance Manuals shall
include the volumes compiled by the Vendor containing all
Subcontractor-furnished product maintenance data. As of the time of Final
Overall Network Acceptance, Vendor shall provide updates, if applicable, to all
Maintenance Manuals to address the operation and maintenance of the Network
overall, including providing "as built" drawings.
3.15 Standards for Operating and Maintenance Manuals.
(a) All Operating Manuals and Maintenance Manuals and other documentary
material required to be provided by the Vendor pursuant to this Agreement shall
be written in English or Spanish if available and shall be:
(i) detailed and comprehensive and prepared with
generally accepted industry standards of professional
care, skill, diligence and competence applicable to
documentation relating to the design, engineering,
implementation, operation, administration and
maintenance practices for telecommunications
facilities similar to the Network;
(ii) sufficient to enable Impsat to operate and maintain
each of the Network Elements, Functional Units, the
Subnetwork and the Network as a whole on a continuous
basis, including setting forth all of the procedures
for operation; and
(iii) prepared subject to the foregoing standards with the
goal of achieving operation of the Network at the
capacity, efficiency, reliability, safety and
maintainability levels contemplated by the Contract
Documents and required by all Applicable Laws and
Applicable Permits.
(b) Operating Manuals, Maintenance Manuals and all other documentary
material supplied by the Vendor to Impsat hereunder, including all documentation
provided in CD-ROM format, shall be updated during the Term of this Agreement to
take into account all Equipment upgrades, enhancements, Expansions and other
technology upgrades applicable to the Network and/or any part thereof pursuant
to the Contract Documents.
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Impsat shall have the right to make copies of the foregoing Documentation as may
be reasonably necessary or desirable, it being understood that the Vendor has no
obligation to update any copies made by Impsat.
(c) In addition, without limiting the requirements set forth in
subsections (a) and (b) of this Section, Operating Manuals, Maintenance Manuals
and all other documentary material (but not "as-built" drawings) shall be
submitted to Impsat on CD-ROM (in PDF format if available).
3.16 RF Engineering.
(a) Impsat and the Vendor agree to cooperate with each other to
complete the RF Engineering to be performed by the Vendor. The Vendor shall
perform the RF Engineering for each Functional Unit and, in connection
therewith, shall use the information on desired coverage areas, RF Engineering
parameters and other information or restrictions Impsat wishes to be included in
the Final RF Engineering Plan for each Functional Unit, as set forth in the
Network Design Plan or as otherwise communicated to Impsat by the Vendor. In
conformance with the Project Milestones set forth in the Project Implementation
Plan, the Vendor shall deliver to Impsat a detailed preliminary RF design for
each of the Functional Units in accordance with the requirements and criteria
set forth in the Network Design Plan, which shall include "search rings" for
each such Functional Unit that shall specify geographical areas in which Vendor
may proceed with Preliminary Site Acquisition.
(b) Within five (5) Business Days after Site Acquisition Substantial
Completion with respect to any Functional Unit (the "Final RF Review Period"),
Impsat and the Vendor shall use their best efforts to agree on a final RF
Engineering plan (the "Final RF Engineering Plan") for such Functional Unit upon
which the Functional Unit shall be built by the Vendor. Failure of Impsat and
the Vendor to reach satisfactory agreement on a Final RF Engineering Plan for
any given Functional Unit within the Final RF Review Period shall automatically
result in the referral of any such disagreement to the most senior RF engineers
of both Impsat and the Vendor for their review and resolution within five (5)
Business Days after the end of any such Final RF Review Period. If the senior RF
engineers fail to resolve any such disagreement within the extended five (5)
Business Day resolution period, the disagreement shall be subject to resolution
in accordance with Article XVIII. It is understood by the Parties that during
the period of any such disagreement and the resolution thereof in accordance
herewith, the Work on such Functional Unit, to the extent possible, will be
ongoing and that Provisional Acceptance of such Functional Unit cannot be
achieved without agreement by the Parties on a Final RF Engineering Plan for
such Functional Unit.
3.17 Site Acquisition and Rights of Way.
The Network Design Plan includes procedures for determining the Sites.
The location of Sites shall be subject to modifications to the extent required
in light of the RF Engineering and other engineering and design services
hereinafter described, and the Vendor shall update the Network Design Plan to
reflect such modifications while retaining all features and services described
in the Functional Specifications. As part of the Site acquisition process,
Vendor shall identify at least three (3) commercially feasible alternatives for
each Site in accordance with the requirements and reference prices attached as
Exhibit M,
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and shall certify that each alternative satisfies the applicable Specifications
and Standards and the other provisions of the Contract Documents; provided,
however, that if after diligent effort Vendor is unable to identify three (3)
commercially feasible alternatives for each Site in accordance with the above
requirements, Vendor may propose the number of Site alternatives that Vendor has
identified, but in no event less than one (1) such commercially feasible Site.
After Vendor has identified Site alternatives, Impsat shall in its sole and
absolute discretion choose a Site from among those alternatives. Once Impsat has
chosen a particular Site, the Vendor shall be responsible for obtaining all
Applicable Permits and Rights of Way and completing all other documentation
required for the acquisition of sufficient rights in such Site to meet the
requirements of the Contract Documents; provided, however, that Impsat shall
have the right to participate along with Vendor in any negotiations with third
parties relating to the acquisition of such rights (including Rights of Ways),
and that all such documentation shall be in form and substance reasonably
acceptable to Impsat and its counsel. Once finalized, Impsat shall execute all
required documentation prepared by Vendor in connection with the acquisition of
rights to own, lease or use each Site in connection with the Subnetwork and the
Network and shall pay the purchase price and/or make any lease or use payments
required under such documentation.
ARTICLE IV.
PROJECT IMPLEMENTATION
4.1 Impsat Project Manager.
Impsat shall appoint a senior executive (the "Impsat Project Manager")
with overall authority and responsibility for representing Impsat in overseeing
the Vendor's Work hereunder. With respect to all matters related to the Work,
the Impsat Project Manager shall be authorized to act as the primary point of
contact for the Vendor in dealing with Impsat on all aspects of the Work and to
issue all consents or approvals and make all requests related thereto on behalf
of Impsat. Impsat may change the designated Impsat Project Manager from time to
time.
4.2 Vendor Project Manager.
The Vendor shall appoint a senior executive of Nortel-Argentina (the
"Vendor Project Manager") to coordinate the Vendor's overall delivery of the
Work and liaise with the Impsat Project Manager. With respect to all matters
related to the Work, the Vendor Project Manager shall be authorized to act as
the primary point of contact for Impsat in dealing with the Vendor on all
aspects of the Work and to issue all consents or approvals and make all requests
on behalf of the Vendor. The Vendor's appointment of the Vendor Project Manager
shall be subject to Impsat's consent. Vendor may change the designated Vendor
Project Manager from time to time with Impsat's consent, such consent not to be
unreasonably withheld.
4.3 Network Implementation Project; Project Implementation Plan.
The Vendor shall retain sole and complete responsibility over the
Engineering, design, planning, manufacturing, procurement, supply delivery and
Installation of Equipment, construction of facilities, and testing,
commissioning, optimization and operation of the Subnetwork hereunder, including
all aspects of project management, in order to establish the
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Subnetwork in accordance with all Applicable Laws and in conformance with the
Specifications and Standards and the other provisions of the Contract Documents,
and successfully complete each Project Milestone by or before its scheduled date
as specified in the Project Implementation Plan (subject to modifications of the
various scheduled completion dates to reflect Change Orders, Directed Changes or
the effect of Force Majeure, if any), except as otherwise directed by Impsat
and/or mutually agreed upon by Vendor and Impsat.
4.4 Impsat Requested Delays in Shipment of Equipment.
The Vendor's manufacturing schedules for Telecommunications Equipment
shall be based on the Master Plan, unless otherwise agreed to by the Vendor and
Impsat. Impsat may request a delay in the shipment of Telecommunications
Equipment by submitting such request in writing to Vendor (a "Shipment Delay
Request"). If Impsat submits a Shipment Delay Request to Vendor (i) before the
scheduled date for the manufacturing of such Telecommunications Equipment to
commence or (ii) in accordance with the provisions of Section 9.2(a), the
Shipment Delay Request shall be granted. If Impsat otherwise submits a Shipment
Delay Request, such Shipment Delay Request shall be granted only if the Vendor
has not actually begun manufacturing such Telecommunications Equipment.
4.5 Change Orders and Directed Changes.
(a) At any time during the construction of the Subnetwork, Impsat shall
have the right to request changes in any aspect of the Specifications and
Standards and/or the Work by delivering to Vendor a written request therefor (a
"Change Request") pursuant to the procedures and forms stipulated in Exhibit D
("Change Order Procedures and Forms"), describing in reasonable detail the
desired changes. The Vendor shall evaluate (i) the effect that the Change
Request will have on the resources required by the Vendor to implement the
desired changes, (ii) the resultant effect, if any, to the project schedule and
costs and (iii) the increase or decrease, if any, in the amounts payable by
Impsat to the Vendor as a result of such proposed chances. The Vendor shall
deliver to Impsat a notice specifying the results of such evaluation (the
"Change Proposal") as soon as reasonably feasible following receipt of a Change
Request.
(b) A Change Proposal shall not become effective unless and until the
price adjustments, the terms and schedule of payments and the extension of time
and all other terms as may be affected have been mutually agreed upon by the
Parties (and the Parties shall act reasonably and in good faith in negotiating
all such terms) and such terms are reduced to writing and signed by an
authorized representative of each Party (a "Change Order") using the Change
Order Form included in Exhibit D, and any Change Order shall be automatically
incorporated as an amendment to this Agreement.
(c) Notwithstanding the foregoing provisions of this Section 4.5,
Impsat shall have the right, in its sole discretion, to make one or more
directed changes to the scope of the Work (a "Directed Change"), subject to the
following provisions:
(i) Any Directed Change (a) must be in a writing from
Impsat to Vendor, (b) may reduce or increase the
quantity or amount of
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any Products or Services to be provided by Vendor,
and (c) may not change the Specifications or
Standards;
(ii) The Aggregate Price shall be increased or decreased,
as appropriate, to take into account the effect of
the Directed Changes, by reference to the prices set
forth on the Product List and Pricing Schedule
attached hereto as Exhibit M and the provisions of
this Section 4.5;
(iii) The aggregate of all Directed Changes may not result
in a net increase or decrease of more than [ ]
percent ([ ]%) of the Aggregate Price set forth in
Section 9.1;
(iv) The Parties shall negotiate an equitable adjustment
to the delivery date, schedule and such other terms
of this Agreement as may be directly affected by such
Directed Change, and in the absence of an agreement
as to such adjustments, or as to the price
adjustment, either party may refer the matter to
arbitration for dispute resolution pursuant to
Article XVIII; provided, however, that any adjustment
to the Aggregate Price shall be subject to
arbitration only if the price for such Service or
Item of Product is not included on the Product List
and Pricing Schedule (Exhibit M); and
(v) The Directed Change and any adjustments to this
Agreement under clauses (i) through (iv) shall
automatically be incorporated as an amendment to this
Agreement.
(d) Recovery Costs. If a Change Order or Directed Change results in the
cancellation of Equipment that has already been manufactured in accordance with
the schedule set forth in the Master Plan or the manufacturing of which has
commenced in accordance with such schedule, Impsat agrees to reimburse Vendor
for any cancellation charges or other related out-of-pocket expenses reasonably
incurred by Vendor as a result of such cancellation of Equipment. If a Change
Order or Directed Change results in the cancellation of Services, Impsat shall
pay Vendor for the Services actually performed by the Vendor in accordance with
the Standards and Specifications and the provisions of the other Contract
Documents through the date of cancellation and shall reimburse Vendor for the
reasonable demobilization costs incurred by Vendor as a result of such
cancellation of Services.
4.6 Project Progress Reporting.
(a) Monthly Project Report. During the course of Work, the Vendor
Project Manager shall prepare and deliver to the Impsat Project Manager a
Monthly Progress Report, by the 10th day of each month, in the form and covering
the matters specified in Exhibit D.
(b) Weekly Project Review Meeting. Each week, the Vendor Project
Manager shall present a detailed weekly project status report of the Work at a
weekly project
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review meeting attended by the Impsat Project Manager and other Impsat and
Vendor managerial and technical staff as appropriate. Such weekly project status
report shall cover the matters set forth in Exhibit D.
(c) Completion Report. Not later than the date of Provisional
Acceptance of each Network Element Facility, each Network Subsystem and each
Functional Unit, Vendor shall furnish to Impsat a Completion Report with respect
to such Network Element Facility, Network Subsystem or Functional Unit. Each
Completion Report shall cover the areas described on Exhibit D.
4.7 Work Staffing.
(a) Assignment by the Vendor of the Vendor Project Manager and other
key project team members identified as key members in the Project Implementation
Plan ("Key Persons") to perform the Work shall be subject to Impsat's approval
in its sole discretion. At its discretion, Impsat shall have the right to reject
at any time any Key Person (including the Vendor Project Manager) deemed in good
faith by Impsat to be unqualified, unsuitable, lacking requisite skills or
experience, or otherwise unsatisfactory in light of Impsat's reasonable business
needs, without any liability or penalty owed to the Vendor, by delivering a
notice to the Vendor. The Vendor shall use all commercially reasonable efforts
to promptly replace such rejected Key Person with another appropriate person
with the requisite skills and experience.
(b) Without thirty (30) days prior written notification to Impsat, the
Vendor shall not re-assign a Key Person to any other project on a full-time
basis, or terminate the employment of such Key Person (other than termination
for cause or other reasonable business purposes) within 12 months after such Key
Person is assigned to perform Services hereunder.
4.8 Force Majeure and Delay Attributable to Impsat.
(a) Except with respect to any obligation to make payments when due,
each Party may be excused for failure or delay with respect to any obligation of
such Party under this Agreement to the extent that such failure or delay results
from an event of Force Majeure. Notwithstanding the foregoing, the Vendor shall
not be entitled to relief under this Section 4.8(a) to the extent that any event
otherwise constituting an event of Force Majeure results from the negligence or
fault of the Vendor, any of its Subcontractors, its third party contractors, or
its Affiliates or agents, and Impsat shall not be entitled to relief under this
Section 4.8(a) to the extent any event otherwise constituting an event of Force
Majeure results from the negligence or fault of Impsat or any of its Affiliates
or agents.
(b) The Party claiming the benefit of an excusable failure or delay
under Section 4.8(a) shall: (i) promptly notify the other Party of the Force
Majeure circumstances creating the failure or delay and provide a statement of
the impact of the Force Majeure circumstances upon such Party's failure or
delay, including the actual or estimated extent of the delay caused or likely to
be caused thereby; and (ii) use all reasonable efforts to avoid, remove or
mitigate such causes of nonperformance, excusable failure or delay. If an event
of Force Majeure prevents the Vendor from performing any of its obligations
under this
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Agreement for a period [ ], Impsat shall have the right to terminate this
Agreement in accordance with Section 16.2.
(c) Except with respect to any obligation to make payments when due
hereunder, the Party not claiming the benefit of excusable failure or delay
hereunder will likewise be excused from performance of its obligations hereunder
to the extent that such performance is directly affected by the other Party's
delayed performance or failure to perform.
(d) If the Vendor's performance of the Work is delayed by reason of
Force Majeure or delays directly and primarily attributable to Impsat, or
Impsat's Affiliates, agents or third-party subcontractors (excluding Vendor),
Impsat shall (subject to the provisions of subsection (e) below) grant an
extension of time equal to that of the delay of performance of such Work, but
without any adjustment in the amounts payable by Impsat hereunder; provided that
Impsat shall bear any additional costs reasonably incurred by the Vendor that
can be shown to result directly from delays primarily attributable to Impsat. It
shall be the Vendor's duty at all times to exercise its best efforts to minimize
any delay and additional costs that may be caused by any of the causes described
above.
(e) Impsat recognizes that time is of the essence in providing Vendor
all required approvals and documentation and in performing all of Impsat's
obligations under this Agreement. If a delay in the Vendor's performance of the
Work is directly attributable to Impsat or Impsat's Affiliates, agents or
third-party subcontractors (excluding Vendor), the Vendor shall promptly
estimate the length of the delay and notify the Impsat Project Manager in
writing thereof on becoming aware that a delay has been or will be caused by any
one or more of the reasons mentioned in subsection (d) above.
(f) Any disputes with respect to whether or not an event constitutes a
Force Majeure or the application of this Section 4.8 shall be resolved in
accordance with the provisions of Article XVIII.
4.9 Records and Communications.
The Parties shall follow procedures established for keeping and
distributing orderly and complete records of the Work and its progress and for
communications between Impsat and the Vendor as described in Exhibit D.
4.10 Impsat Review, Comment and Approval.
To the extent that various provisions of this Agreement provide for
Impsat's review, comment, inspection, evaluation, recommendation or approval,
Impsat may do so (i) autonomously or (ii) in conjunction and/or consultation
with the Vendor. To the extent that this Agreement requires Impsat to submit,
furnish, provide or deliver to the Vendor any report, notice, Change Order,
request or other items, Impsat may in its sole discretion and upon written
notice to the Vendor designate any engineers or engineering firm engaged by it
to submit, furnish, provide or deliver such items on Impsat's behalf; provided,
however, that Impsat shall not designate any Vendor Direct Competitor without
Vendor's prior consent, which consent shall not be unreasonably withheld or
delayed. To the extent that various provisions of this Agreement provide that
Impsat may order, direct or make requests with
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respect to performance of the Work or is provided access to any Sites or any
other location, Impsat may at its option and upon written notice to the Vendor
authorize such engineers or engineering firm to act as Impsat's agent therefor,
provided that such engineers or engineering firms agree in writing to comply
with the confidentiality requirements under this Agreement. Upon receipt of such
notice, the Vendor shall be entitled to rely upon such authorization until a
superseding written notice from Impsat is received by the Vendor.
4.11 Quality Assurance.
(a) Vendor shall establish a quality assurance organization (the "QAO")
which shall be responsible for inspecting and testing all Products and Services
provided under this Agreement to ensure that the quality of such Products and
Services is sufficient to realize the Specifications and Standards and the other
provisions of the Contract Documents. The inspection and test program
established for such Products and Services shall be consistent with commercial
practices normally employed by Vendor in the construction of communications
networks. Copies of all test results and any reports prepared by the QAO shall
be provided to Impsat. The manager of the QAO shall report to the Vendor Project
Manager. The foregoing shall not be construed as limiting any of Vendor's
obligations under this Agreement.
(b) Prior to placing an order for a Product with a third party that exceeds
[ ] U.S. Dollars (US$[ ]), Vendor shall submit the name of such supplier and
a description of the Product to Impsat for Impsat's approval. Impsat shall have
the right, in its sole and absolute discretion, to approve or disapprove of such
supplier within seven (7) calendar days of receiving the name of such supplier.
The Vendor's responsibility for the design and construction of the Subnetwork
and the adequacy thereof shall not in any way be diminished by Impsat's approval
of a particular supplier.
4.12 Training.
As further described in Exhibit K hereto, Vendor shall provide to
Impsat a practical and participatory and, where feasible, on-site training
program, which program will include technical education (collectively, the
"Training"), at the price set forth in the Product List and Pricing Schedule.
Such Training must be kept current to encompass the latest Products directed by
Impsat pursuant to the terms of this Agreement.
4.13 Performance Bond.
Within ten (10) days of the date hereof, Vendor shall provide to Impsat
a performance bond equal to [ ] percent ([ ]%) of the Aggregate Price (the
"Performance Bond") to guaranty the completion of the Work, such Performance
Bond to be in a form acceptable to Impsat. At the end of each month, Vendor may
reduce the Performance Bond by an amount equal to the amount of money "retained"
for later payment pursuant to Sections 9.2(a)(iv) and (v) and 9.2(b)(iii) and
(iv) out of the payments made during such month. The Performance Bond shall be
(i) returned to Vendor upon Provisional Acceptance of the Subnetwork or (ii)
handled pursuant to Section 16.3(f).
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ARTICLE V.
ACCEPTANCE TESTING
5.1 Acceptance Testing - General.
(a) Acceptance Tests for each of the Network Element Facilities, each
of the Network Subsystems, each of the Functional Units, the Subnetwork and the
Network as a whole shall be conducted by the Vendor in conjunction with Impsat's
personnel. Such detailed test specifications for each Acceptance Test shall
substantially conform to the applicable provisions of the Acceptance Test
Procedures. The detailed test specifications for each Acceptance Test shall be
delivered by the Vendor to Impsat for review and approval at least thirty (30)
days prior to the date on which such Acceptance Test is planned to be performed.
The Parties shall meet to discuss in good faith the detailed test specifications
for such Acceptance Test with a view to agree upon such specifications by or
before the date that is fifteen (15) days prior to the date on which such
Acceptance Test is planned to be performed. In the event the Parties are unable
to agree upon such test specifications by such date, the dispute shall be
resolved in accordance with the dispute resolution mechanisms set forth in
Article XVIII.
5.2 Notification; Presence at Acceptance Tests.
The Vendor shall confirm testing activity with Impsat, in writing, at
least fifteen (15) days prior to the performance of each Acceptance Test. Impsat
and its representatives, at their sole cost and expense, shall have the right to
witness and have unrestricted access to the Vendor's and its Subcontractors'
Acceptance Tests.
5.3 Acceptance Test Reports and Acceptance Certificates.
Upon successful completion of the Acceptance Test for any Civil Work,
Item of Product, Network Element Facility, Network Subsystem, Functional Unit,
the Subnetwork and the Network as a whole conducted by the Vendor, the Vendor
shall submit to Impsat an Acceptance Test report comprising: (i) a certification
by the Vendor that such Acceptance Tests have been successfully completed, (ii)
a certification by the Vendor that the Work so tested has been completed in
accordance with the terms of this Agreement (other than proposed Vendor Punch
List items in the case of Acceptance Testing for Provisional Acceptance), (iii)
in the case of Acceptance Testing for Provisional Acceptance, a proposed Punch
List with respect to such Civil Work, Item of Product, Network Element Facility,
Network Subsystem or Functional Unit, (iv) if applicable, a confirmation that
the remainder of the Work is continuing in accordance with the Project
Milestones set forth in the Project Implementation Plan and (v) copies of all
test results as recorded during the execution of such Acceptance Test. Impsat
will acknowledge receipt of such certification in writing and deliver to the
Vendor either: (i) the appropriate acceptance certificate with respect to such
Civil Work, Item of Product, Network Element Facility, Network Subsystem,
Functional Unit, the Subnetwork or the Network as a whole or (ii) a notice
indicating a dispute with such certification or Punch List. In the event of any
dispute as to the results of any Acceptance Tests, such dispute shall be
resolved pursuant to the dispute resolution mechanisms set forth in Article
XVIII.
5.4 Punch Lists, Correction of Defects; Costs and Expenses.
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(a) For purposes of this Agreement, a "Punch List" means each list
prepared in conjunction with one or more Acceptance Tests for any Civil Work,
Item of Product, Network Element Facility, Network Subsystem or Functional Unit
and included in the related Acceptance Test certificate, which sets forth one or
more non-service-affecting items that have not been fully completed or performed
by the Vendor as of the satisfactory completion (but for such items) of the
related Acceptance Tests; provided, however, that a Punch List (i) shall include
only those items that can be completed or corrected within thirty (30) days of
Provisional Acceptance, and (ii) in the case of Acceptance Testing for
Provisional Acceptance of a Functional Unit, shall include only those items that
do not affect functionality and the repair of which will not require or likely
result in a breakdown in In Revenue Service of such Functional Unit. If the
Acceptance Tests performed in connection with Provisional Acceptance reveal
items that cannot be completed or corrected within thirty (30) days, then the
Network Element Facility, the Network Subsystem or the Functional Unit, as
applicable, being tested shall not have achieved Provisional Acceptance as of
that time.
(b) The costs and expenses of all Acceptance Tests and of performing
all Punch List Work shall be borne by the Vendor, and Impsat shall not be
charged or billed for any such costs and expenses. If any Acceptance Test is not
completed satisfactorily in accordance with the Acceptance Test Procedures or,
in the reasonable judgment of Impsat, is inconclusive, the Vendor shall, at its
sole cost and expense: (i) in writing, notify Impsat of such failure,
documenting in reasonable specificity and detail such failure; and (ii) promptly
correct whatever Defects or Deficiencies caused such Acceptance Test not to be
completed satisfactorily. After such correction, the Vendor shall (i) repeat at
its sole cost and expense the failed Acceptance Tests and as many other
Acceptance Tests as are necessary to ensure that such correction made by the
Vendor would not have affected the outcome of such other Acceptance Tests, and
(ii) in writing, notify Impsat as to what correction was made and what
Acceptance Tests were repeated.
5.5 In Revenue Service.
Impsat reserves the right at any time following Provisional Acceptance
to commence In Revenue Service of any Functional Unit, the Subnetwork or the
Network as a whole, and Vendor agrees to cooperate in all reasonable respects
with Impsat in connection therewith. Impsat's decision to commence In Revenue
Service of a Functional Unit or the Subnetwork or Network as a whole shall in no
way limit or diminish Vendor's obligations and responsibilities with respect to
such Functional Unit or the Subnetwork or Network as a whole, except as
specifically provided for in the Contract Documents.
5.6 Provisional Acceptance.
(a) Acceptance Testing for Provisional Acceptance. "Acceptance Testing
for Provisional Acceptance" means testing, in accordance with the Acceptance
Test Procedures set forth in Exhibit F, to determine that each Network Element
Facility, each Network Subsystem, each Functional Unit, the Subnetwork as a
whole or the Network as a whole fully functions and complies with the applicable
provisions of the Contract Documents. Acceptance Testing for Provisional
Acceptance with respect to each Network Element Facility, Network Subsystem and
Functional Unit shall occur in two parts: (i) the Civil Work related to such
Network Element Facility or Functional Unit shall be tested and
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approved in accordance with the provisions of Section 5.6(b) and Exhibit F, and
(ii) the Products and Impsat-Provided Equipment, if any, that are related to or
are part of such Network Element Facility, Network Subsystem or Functional Unit
shall be tested and approved in accordance with the provisions of this Section
5.6 and Exhibit F.
(b) Acceptance Testing for Provisional Acceptance of Civil Work. Vendor
shall provide notice to Impsat in writing when all Civil Work for a particular
Network Element Facility, Network Subsystem or Functional Unit has been
completed in accordance with the Specifications and Standards and the other
provisions of the Contract Documents. Within five (5) Business Days of Impsat's
receipt of such notification, Vendor and Impsat shall agree to a date to perform
a walk-through inspection of such Network Element Facility, Network Subsystem or
Functional Unit (a "Walk-Through"). At such Walk-Through, the Civil Work shall
be inspected and approved in accordance with the provisions of Exhibit F, and
Vendor and Impsat shall compile a Punch List with respect to the Civil Work at
such Network Element Facility, Network Subsystem or Functional Unit. If Impsat
agrees by executing an acceptance certificate pursuant to Section 5.3 that the
Civil Work is complete except for the Punch List items identified, then the
Civil Work at such Network Element Facility, Network Subsystem or Functional
Unit shall be deemed to have satisfied Acceptance Testing for Provisional
Acceptance. Prior to the Installation of a specific Item of Telecommunications
Equipment or Impsat-Provided Equipment, all of the Civil Work associated with
the portion of the Network Element Facility that will house such item of
Telecommunications Equipment or Impsat-Provided Equipment shall be completed in
accordance with the Specifications and Standards and the provisions contained in
the other Contract Documents.
(c) Provisional Acceptance of Network Element Facility or Network
Subsystem. The occurrence of both of the following events shall constitute
"Provisional Acceptance" of a Network Element Facility or Network Subsystem:
(i) Impsat's execution pursuant to Section 5.3 of an
acceptance certificate with respect to the Civil Work
that was performed in connection with such Network
Element Facility or Network Subsystem, subject to any
Punch List that may be jointly prepared by Vendor and
Impsat; and
(ii) Impsat's execution pursuant to Section 5.3 of an
acceptance certificate with respect to the Products
that are part of or related to such Network Element
Facility or Network Subsystem, subject to any Punch
List that may be jointly prepared by Vendor and
Impsat.
(d) Provisional Acceptance of Functional Unit. Impsat's execution
pursuant to Section 5.3 of an acceptance certificate with respect to both the
Civil Work that was performed in connection with a Functional Unit and the
Products that are part of or related to such Functional Unit, in each case
subject to any Punch List as jointly prepared by Vendor and Impsat, shall
constitute Provisional Acceptance of a Functional Unit. Provisional Acceptance
of the Functional Units shall occur in the order set forth in the Project
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Implementation Schedule contained in Exhibit D, unless otherwise agreed to by
Impsat in its sole discretion.
(e) Provisional Acceptance of Subnetwork or Network. Impsat's execution
pursuant to Section 5.3 of an acceptance certificate with respect to the
Subnetwork or Network shall constitute Provisional Acceptance of the Subnetwork
or Network. If Provisional Acceptance of the Subnetwork does not occur within
[ ] after all the Functional Units in the
Subnetwork achieving Final Acceptance, unless such delay is the result of a
failure of Impsat-Provided Equipment, Impsat shall be permitted to terminate
this Agreement pursuant to Section 16.2.
5.7 Final Acceptance.
(a) Final Acceptance of Network Element Facility, Network Subsystem or
Functional Unit. Final Acceptance of each Network Element Facility, Network
Subsystem or Functional Unit shall mean the completion or correction of all
Punch List items identified in connection with the Acceptance Testing for
Provisional Acceptance of such Network Element Facility, Network Subsystem or
Functional Unit. Nortel shall complete or correct all Punch List items within
[ ] of Provisional Acceptance. Impsat's execution of an acceptance
certificate pursuant to Section 5.3 for a Network Element Facility, Network
Subsystem or Functional Unit certifying that all Punch List items with respect
thereto have been corrected shall constitute "Final Acceptance" of such Network
Element Facility, Network Subsystem or Functional Unit.
(b) Final Acceptance of Subnetwork. Final Acceptance of the Subnetwork
shall mean the successful operation, in accordance with all provisions of the
Contract Documents, of the Subnetwork operating as a whole while in commercial
use, as determined in accordance with the Acceptance Test Procedures set forth
in Exhibit F; provided, however, that Final Acceptance of the Subnetwork shall
occur [ ] from the date of Provisional Acceptance of the Subnetwork if
the above condition of this subsection (b) is satisfied on such date, or at such
later date as the above condition of this subsection (b) is satisfied. Impsat's
execution of a final acceptance certificate with respect to the Subnetwork shall
constitute "Final Acceptance" of the Subnetwork.
(c) Final Overall Network Acceptance. Final Overall Network Acceptance
shall mean (i) Final Acceptance of each separate Subnetwork and (ii) the
successful operation, in accordance with all provisions of the Contract
Documents, of each of the Subnetworks when linked together using Impsat-Provided
Equipment. Impsat's execution of an acceptance certificate pursuant to Section
5.3 with respect to the Network shall constitute Final Overall Network
Acceptance. If Final Overall Network Acceptance does not occur within
[ ] of Provisional Acceptance of the Network, unless such delay is the
result of a failure of Impsat-Provided Equipment, (i) Impsat shall be permitted
to terminate this Agreement pursuant to Section 16.2, and (ii) the warranties
provided by Vendor pursuant to Article XII shall terminate.
ARTICLE VI.
SPARE PARTS; POST-COMMISSIONING SUPPORT
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6.1 Spare Parts.
Spare parts shall be provided under this Agreement in accordance with
the terms of Exhibit I.
6.2 Product Support Services; Emergency Technical Assistance Services.
(a) The Vendor shall provide the support services for all Products
supplied by the Vendor hereunder, including Emergency Technical Assistance
Services ("Product Support Services"), to the extent and in the manner set forth
in this Article VI and in the Technical Support Provisions, until Final Overall
Network Acceptance. Prior to Final Overall Network Acceptance, Vendor shall
present a Service Support Plan to provide such Product Support Services after
Final Overall Network Acceptance for a period of at least five (5) years,
including the yearly pricing for those Product Support Services. Such prices
shall be no higher than those set forth in the Product List and Pricing
Schedule.
(b) Until Final Overall Network Acceptance, whenever Impsat or the
Operator's personnel have identified and isolated any malfunction and the fault
continues to affect normal operations of any element of the Subnetwork or the
Network, such personnel may contact the Vendor's technical assistance group
according to the procedures outlined in the Technical Support Provisions. No
later than three (3) months prior to Final Overall Network Acceptance, Vendor
shall present a "Service Support Plan" to provide such technical support after
Final Overall Network Acceptance for a period of at least five (5) years,
including the yearly pricing for those technical support services. Such prices
shall be no higher than those set forth in the Product List and Pricing
Schedule.
(c) During the Warranty Period, the Vendor shall provide emergency
technical support to Impsat on a twenty-four (24) hours a day, three hundred
sixty five (365) day per year basis as described in the Technical Support
Provisions.
ARTICLE VII.
INTELLECTUAL PROPERTY RIGHTS
7.1 Background IPR and Foreground IPR.
(a) The Services performed by NNC, its Subsidiaries or Subcontractors
pursuant to this Agreement (and any deliverables provided to Impsat in
connection therewith) are not "works for hire."
(b) Background IPR of NNC and its Subsidiaries, and of Impsat and its
Subsidiaries, including any Background IPR incorporated in the Work and
Services, shall remain the exclusive property of such party.
(c) Impsat and its Subsidiaries hereby grant to NNC and its
Subsidiaries a non-exclusive, fully paid-up, worldwide, perpetual,
non-transferable, indivisible, personal license to use Impsat Background IPR
(the "Impsat License"). Such license shall be limited to and solely for the
purposes of allowing NNC and its Subsidiaries to perform their obligations under
this Agreement and the Work and Services to be performed hereunder.
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(d) All Foreground IPR, including Foreground IPR incorporated in the Work
and Services, shall be owned by NNC and its Subsidiaries without any
restriction.
(e) Impsat agrees to cooperate with and assist in all reasonable respects
NNC and its Subsidiaries in applying for and executing any applications and/or
assignments relating to any statutory Foreground IPR of NNC or its Subsidiaries.
Each such application shall be made at NNC's expense and NNC shall pay for
Impsat's assistance on a reasonable time and expense basis.
7.2 Vendor License.
(a) For all Vendor Background IPR and Foreground IPR, including each and
every program and element of the Network Software (each a "Software Element")
furnished to Impsat under this Agreement or incorporated in the Work ("Vendor
IPR"), Vendor hereby grants to Impsat a non-exclusive, fully-paid, worldwide,
perpetual license (the "Vendor License") to:
(i) use each Software Element and other Vendor IPR embedded or
included as an integral part of any Item of Equipment;
(ii) install and use each Software Element on one or more pieces of
Equipment used in the Project, if such Software Element is not
embedded as an integral part of any Item of Equipment;
(iii) use the Vendor IPR to use, operate and/or maintain the Network
(and/or any element thereof), including without limitation: (x)
to integrate customers of Impsat into the Network, provide
services thereon to such customers, and allow all such customers
to use the Network, and (y) to engage contractors to provide
goods and/or services for the use, operation and/or maintenance
of the Network and/or the Project;
(iv) install and use each Software Element on one or more pieces of
Equipment used in any segment of the Project in a Project
Country, if such Software Element is not embedded as an integral
part of any Item of Equipment;
(v) use the Vendor IPR to use, operate and/or maintain any other
segment of the Project in any Project Country, including without
limitation: (a) to integrate customers of Impsat into such
segments, provide services thereon to such customers, and allow
such customers to use such segments, and (b) to engage
contractors to provide goods and/or services for the use,
operation and/or maintenance of such segments; and
(vi) in order to develop and implement a segment of the Project in
Project Countries, use the Vendor IPR subject to the provisions
of this Agreement.
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The uses described in clauses (i) - (vi) above are the "Permitted IPR
Uses".
(b) Vendor does not grant Impsat or its Subsidiaries title or ownership
rights in or to any Software Element (in whole or in part), and such rights
shall remain with the Vendor, its Subsidiaries or third party suppliers (as the
case may be).
(c) The Vendor and its Subsidiaries consider each Software Element to
contain trade secrets of the Vendor, its Subsidiaries or third party suppliers
(as the case may be). Such trade secrets include the specific design, structure
and logic of the Software Element, its interactions with other portions of the
Network Software (both internally and externally) and the programming techniques
employed therein. In order to maintain the trade secret status of the
information contained within each Software Element, all Software Elements shall
be delivered to Impsat or its Subsidiaries in object code form only.
7.3 Impsat's Obligations Regarding Software Elements.
(a) For each Item of Network Software delivered to Impsat on a magnetic or
optical storage medium, Impsat shall:
(i) use each copy of the Network Software only on those Network
Elements for which it is intended, while remaining within the
limitations associated with such use hereunder, except as may be
provided otherwise in the Contract Documents;
(ii) affix to the magnetic or optical storage medium onto which a copy
is made by Impsat or its Subsidiaries of the Network Software in
the same form and location a reproduction of the copyright
notices, trademarks and all other proprietary legends or logos of
NNC, its Subsidiaries or a third party supplier (as the case may
be), appearing on the original copy of such Network Software
delivered to Impsat or its Subsidiaries, and retain the same
without alteration on all original copies thereof; and
(iii) destroy or return to NNC, as requested by NNC, the Network
Software (and all copies thereof) at such time as Impsat chooses
to permanently cease using such Network Software.
(b) Impsat and its Subsidiaries shall not:
(i) use any Software Element for any purpose other than the business
purposes of Impsat or its Subsidiaries pursuant to the provisions
of this Agreement;
(ii) allow anyone other than NNC, its Subsidiaries, and their
respective agents and employees, and Impsat, its Subsidiaries,
their respective employees, directors, officers and agents, and
Impsat's sub-licensees to have physical access to any Software
Element;
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(iii) make copies of a Software Element, except such limited number of
object code copies in machine readable form as may be reasonably
necessary for execution or archival purposes;
(iv) make any modification, enhancements, adaptations or translations
to or of any Software Element, except for those resulting from
Impsat interactions with a Software Element associated with
normal use as authorized hereunder and as explained in the
documentation related thereto;
(v) attempt to reverse engineer, disassemble, reverse translate,
decompile, or in any other manner decode any Software Element, in
order to derive the source code form or for any other reason;
(vi) make full or partial copies of any documentation or other similar
printed or machine-readable matter provided with any Software
Element (x) unless the same has been supplied in a form by NNC or
its Subsidiaries intended for periodic reproduction of such
partial copies, or (y) except for limited partial copies of
documentation for Impsat's internal use only; or
(vii) export or re-export the Network Software or the Documentation
related thereto unless (w) the exportation is from or to a
Project Country, (x) the exportation is in connection with an
expansion of the Project into other Project Countries, (y) Impsat
complies with the requirements of this Agreement and (z) Impsat
complies with all Applicable Laws.
(c) Impsat hereby warrants to Vendor that Impsat is not purchasing the
rights granted by the Vendor License in anticipation of reselling those rights,
except pursuant to sublicensing under Section 7.5 and/or permitted assignments
under Section 19.8.
7.4 Assignment.
In connection with any permitted assignment of all or part of its rights
under the Vendor License pursuant to Section 19.8, Impsat shall obtain a prior
written (i) undertaking to restrict use of the Vendor IPR to the Permitted IPR
Uses, (ii) undertaking to maintain as confidential except for the Permitted IPR
Uses any Software Elements contained on tapes, disks or other readable media,
(iii) acknowledgment that title to the Vendor IPR shall remain with Vendor and
its Subsidiaries, and (iv) acknowledgment that NNC, its Subsidiaries and
Affiliates are not liable for consequential damages arising from use of the
Vendor IPR. In the event Impsat desires to assign all or part of its rights to
any Network Element under the Vendor License to any Person, Impsat shall
terminate Impsat's rights under this Article VII with respect to and only with
respect to such assigned Network Element by providing prior written notice of
such assignment to NNC. Impsat's pledge of its interest in the Vendor License as
security for loans or any other form of financing shall not be deemed an
assignment for purposes of this Section 7.4.
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7.5 Sublicensing.
Impsat may sublicense its rights under the Vendor License for Permitted IPR
Uses, provided that any such sublicense shall be made through a written
sublicense agreement which shall: (i) restrict the use of the Vendor IPR to
Permitted IPR Uses; (ii) prohibit causing or permitting the reverse engineering
of Vendor IPR; (iii) require that all Software Elements in any form be
maintained as confidential pursuant to this Agreement, (iv) state that title to
the Vendor IPR shall remain with NNC and its Subsidiaries; (v) indicate that
title to Vendor IPR is not passing to another party by virtue of such
sublicense, (vi) state that NNC, its Subsidiaries and Affiliates are not liable
for consequential damages; and (vii) require the sublicensee, at the termination
of the sublicense, to discontinue use and destroy or return to NNC the Vendor
IPR.
7.6 Software Element Maintenance and Support.
(a) NNC and its Subsidiaries shall cause the related software documentation
with respect to any Software Element supplied by NNC and its Subsidiaries
hereunder to be provided to Impsat or its Subsidiaries in accordance with the
provisions of Sections 3.15;
(b) In the event of any failure or any Defect or Deficiency in a Software
Element or a breach of the representations and warranties of NNC or its
Subsidiaries in Section 15.1(d), NNC and its Subsidiaries shall cause such
faults to be corrected (if necessary by temporary repairs), and thereafter, such
corrections and/or patches shall be deemed as system functions that NNC and its
Subsidiaries are obliged to support as stipulated herein and in the Contract
Documents and shall be incorporated into the next Software upgrade of the
Software Element;
(c) Until Final Overall Network Acceptance, NNC and its Subsidiaries shall
provide first line support for all Software Elements comprised within each
Functional Unit, so that during this period:
(i) Impsat or its Subsidiaries shall have the right to contact the
NNC or its Subsidiaries, as specified in Exhibit I, to report any
malfunction of the Network and request that such malfunction be
remedied; and
(ii) in the event that the malfunction is caused by any Software
Element, NNC or its Subsidiaries shall, in the case of software
supplied by NNC or its Subsidiaries, promptly repair such
Software Element in accordance with support quality and response
delay standards specified in the Technical Support Provisions,
and in the case of third-party software, cause the relevant
third-party supplier to repair such Software Element in
accordance with support quality and response delay standards
specified in the Technical Support Provisions.
(d) No later than three (3) months prior to Final Overall Network
Acceptance, the Vendor shall present a Service and Support Plan to provide
maintenance and
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support of all Software Elements constituting the Network Software for a period
of five (5) years following Final Overall Network Acceptance at a single charge
per year.
(e) Under the terms of the Vendor License, Vendor shall make available to
Impsat (i) fully licensed versions of any software tools used in the development
of the Network Software, and (ii) any memory information description, that
Impsat may request in order to develop software for use in connection with the
Network and/or the Project. To the extent that such software tools and/or memory
information are sufficient to support such software development, Vendor shall
provide technical support in accordance with the Technical Support Provisions.
To the extent such technical support is insufficient, Vendor and Impsat shall
jointly review, and if necessary, Vendor shall make available, under the Vendor
License, appropriate portions of program source code to facilitate such software
development.
ARTICLE VIII.
NOTIFICATION OF DEVELOPMENTS
8.1 Industry Developments.
During the Term of this Agreement, the Vendor shall periodically inform
Impsat at reasonably frequent intervals (including in each of the Monthly
Progress Reports required pursuant to Section 4.6(a) during the build-out of the
Subnetwork) of relevant industry developments, participation opportunities in
applicable user groups and, in particular, any technical developments applicable
to the Network Design Plan and improvements that might be made thereto in order
to enhance service levels, increase functionality, and the like, in each case
without additional charge therefor. In addition, Vendor shall promptly inform
Impsat of any "bugs" in the Network Software of which Vendor becomes aware.
8.2 Vendor Developments.
The Vendor shall provide Impsat, through Impsat's Chief Technical Officer
or Marketing Director, with reasonable prior notice of any product developments,
innovations and/or technological advances that had been made by the Vendor and
may be relevant to the Subnetwork; provided, that any such notice pursuant to
this Section 8.2 need not include any information originated by another customer
of the Vendor which is proprietary to such other customer. For the purposes of
this Section 8.2, the term "Vendor" includes the Vendor and its Affiliates and
Subsidiaries.
ARTICLE IX.
PRICING AND PAYMENT PROVISIONS
9.1 Product List and Pricing Schedule.
The product list and pricing schedule attached to this
Agreement as Exhibit M (the "Product List and Pricing Schedule") sets forth: (i)
with respect to each category of Products, the price of each individual Item of
Equipment, Network Software, and other components of the Subnetwork, and (ii)
with respect to each category of Services, the price thereof. The Parties agree
that the aggregate price of the Work equals the sum of One
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Hundred Thirty Three Million Ninety Five Thousand Three Hundred Forty Dollars
and Eighty Eight Cents Amount (US$133,095,340.88) (such sum being hereinafter
referred to as the "Aggregate Price"). In the event of a conflict between the
Aggregate Price and the amounts listed in Exhibit M, the amounts listed in
Exhibit M shall prevail. Except as otherwise provided for in the Contract
Documents, the Aggregate Price is a firm fixed price and includes all costs,
fees and charges related to the Work and all applicable Taxes and Applicable
Permits related to the Work and the Contract Documents (except for VAT on
Services, VAT on the Equipment from the date of shipment by Vendor, the
withholding Taxes described in Section 9.7(d) and Impsat's portion of the
applicable stamp Taxes). The Aggregate Price may not be varied except pursuant
to a Change Order or Directed Change.
9.2 Invoicing and Payments.
(a) Telecommunications Equipment. Prior to shipping any Item of
Telecommunications Equipment, Vendor shall provide Impsat with at least three
(3) days written notice. If there are delays in the construction and completion
of the Functional Unit, Network Subsystem or Network Element Facility which will
contain such Item of Telecommunications Equipment, and such delays are
substantially attributable to Vendor, Vendor shall, at the request of Impsat,
delay the shipment of the Telecommunications Equipment contained in such
Functional Unit, Network Subsystem or Network Element Facility for a period of
time equal to the length of the delay. If Impsat does not request a delay in the
shipment of such Item of Telecommunications Equipment, then Vendor shall ship
such Item of Telecommunications Equipment and invoice Impsat for the price
thereof. The total Price for each Item of Telecommunications Equipment shipped
pursuant to this Agreement shall be paid in United States Dollars by Impsat to
Vendor as follows:
(i) [ ] percent ([ ]%) of the total Price for such Item of
Telecommunications Equipment, as a down payment, as stipulated in
Section 9.3(a);
(ii) [ ] percent ([ ]%) of the total Price for such Item of
Telecommunications Equipment, upon shipment of such Item of
Telecommunications Equipment and presentation of Vendor's
commercial invoice, accompanied by documentary evidence of
shipment;
(iii) [ ] percent ([ ]%) of the total Price for such Item of
Telecommunications Equipment, within thirty (30) calendar days
the Installation thereof;
(iv) [ ] percent ([ ]%) of the total Price for such Item of
Telecommunications Equipment, no later than thirty (30) calendar
days after Provisional Acceptance of the Subnetwork; and
(v) the remaining [ ] percent ([ ]%) of the total Price for each Item
of Telecommunications Equipment shall be paid out in four equal
payments of [ ] percent ([ ]%) of the total Price for such Item
of Telecommunications Equipment. The first
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three payments under this subsection (v) shall be made three (3)
months, six (6) months and nine (9) months, respectively, from
the date of Provisional Acceptance of the Subnetwork, if and only
if the following conditions are satisfied on each such date: (x)
the Subnetwork is operating in accordance with the Specifications
and Standards and the other provisions of the Contract Documents,
and (y) the Subnetwork continues to so operate when linked with
the Companion Subnetwork; provided, however, that the requirement
in (y) above shall not apply if the "link" provided by Impsat
pursuant to Section 3.7 does not properly function on such
payment date. Any amount which is not paid on a date specified
above as a result of a failure to satisfy the above conditions as
of such date shall be carried over to and paid on the next
payment date under this subsection (v) when the above conditions
are satisfied. The final payment under this subsection (v) shall
be made on the date of Final Overall Network Acceptance.
(b) All Other Products and Services. On the first Business Day of each
month, Vendor shall present Impsat as part of the Monthly Progress Report with a
certification that contains an itemized listing of all Products (other than
Telecommunications Equipment which is separately addressed in subsection (a)
above) shipped and a separate itemized listing of all Services performed during
the preceding month in accordance with the provisions of Section 4.6(a). Within
five (5) days of receiving such Monthly Progress Report, the Impsat Project
Manager and the Vendor Project Manager shall meet to review the information
contained therein. Within five (5) days of such meeting, Impsat shall notify
Vendor in writing of any objections Impsat has to the information contained in
the Monthly Progress Report. If Impsat does not object to any of the charges in
the Monthly Progress Report or does not respond within five (5) days of such
meeting, then Vendor shall be permitted to prepare and send to Impsat an invoice
based on the Product and Pricing Schedule with respect to all the Work (other
than Telecommunications Equipment) included in the Monthly Progress Report. If
Impsat does object to certain Work listed in the Monthly Progress Report, then
Vendor shall be permitted to prepare and send to Impsat an invoice for only that
portion of the Work (other than Telecommunications Equipment) from the Monthly
Progress Report that is not in dispute. Those charges that are contested by
Impsat shall be addressed pursuant to the provisions of Section 18.2 and 18.3.
All such invoices shall be paid in United States Dollars by Impsat to Vendor as
follows:
(i) [ ] percent ([ ]%) of the total Price for such Services and
Products, as a down payment, as stipulated in Section 9.3(a);
(ii) [ ] percent ([ ]%) of the total Price for such Services and
Products within thirty (30) calendar days of invoicing;
(iii) [ ] percent ([ ]%) of the total Price for such Services and
Products, no later than thirty (30) calendar days after
Provisional Acceptance of the Subnetwork; and
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(iv) the remaining [ ] percent ([ ]%) of the total Price for such
Services and Products shall be paid out in four equal payments of
[ ] percent ([ ]%) of the total Price for such Services and
Products. The first three payments under this subsection (iv)
shall be made three (3) months, six (6) months and nine (9),
respectively months from the date of Provisional Acceptance of
the Subnetwork, if and only if the following conditions are
satisfied on each such date: (x) the Subnetwork is operating in
accordance with the Specifications and Standards and the other
provisions of the Contract Documents, and (y) the Subnetwork
continues to so operate when linked with the Companion
Subnetwork; provided, however, that the requirement in (y) above
shall not apply if the "link" provided by Impsat pursuant to
Section 3.7 does not properly function on such payment date. Any
amount which is not paid on a date specified above as a result of
a failure to satisfy the above conditions as of such date shall
be carried over to and paid on the next payment date under this
subsection (iv) when the above conditions are satisfied. The
final payment under this subsection (iv) shall be made on the
date of Final Overall Network Acceptance.
The provisions of this Section 9.2(b) shall not apply to services associated
with operating the Network or any unit thereof ("Operating Services") or to
services associated with maintaining the Network or any unit thereof
("Maintenance Services"). Impsat and Vendor agree to negotiate for up to four
months following the date hereof, or such longer period of time as agreed to by
the Parties, to agree on the terms of and to execute both a mutually agreeable
Operating Services Agreement and a mutually agreeable Maintenance Service
Agreement, which shall separately address the provisioning of Operating Services
and Maintenance Services, respectively. The Operating Services Agreement and the
Maintenance Services Agreement shall contain the payment terms for such
Operating Services and Maintenance Services, respectively. If the Parties are
unable to agree on the terms of an Operating Services Agreement and/or a
Maintenance Service Agreement within such time period, the Aggregate Price set
forth in Section 9.1 shall automatically be reduced by an amount equal to the
amount incorporated into the Aggregate Price to cover such Operating Services
and/or Maintenance Services.
9.3 Vendor Financing.
(a) Impsat shall make the payments required under Sections 9.2(a)(i) and
9.2(b)(i) within five (5) calendar days of funds becoming available to Impsat
under the Vendor Financing Agreement.
(b) In the event that (i) the Vendor Financing Agreement is not executed
within thirty (30) days of the execution of this Agreement, or (ii) if any of
the conditions precedent for the Initial Draw under the Vendor Financing
Agreement shall not have been satisfied on or prior to the Outside Date, this
Agreement shall automatically terminate and, except as provided in subsection
(c) of this Section 9.3 and in Sections 16.1 and 16.3(b), neither Party shall
thereafter have any further right over or any further liability to the other
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Party whatsoever in respect of the transactions contemplated hereby, whether
hereunder or in law or in equity.
(c) In the event this Agreement is terminated pursuant to subsection (b) of
this Section, Impsat shall pay to Vendor as liquidated damages an amount equal
to the cost of the Products ordered or delivered, and the Services performed by
Vendor hereunder and under the LOI, and the reasonable costs and expenses of
Vendor related thereto (with reference to the unit prices set forth in the
Product List and Pricing Schedule, where applicable). Vendor shall provide
Impsat with an invoice therefor in reasonable detail and specificity. Impsat
shall pay (i) the first [ ] Dollars ($[ ]) of such invoice
within [ ] after receipt thereof (which payment obligation shall be
secured by the letter of credit specified in subsection (d) below) and (ii) the
remaining amounts invoiced within [ ] after receipt thereof. In no
event shall the amounts due within [ ] under clause (i) of the
preceding sentence and the corresponding provision in the agreement for the
Companion Subnetwork exceed [ ] Dollars ($[ ]) in the
aggregate. Vendor shall provide Impsat with reasonable supporting documentation
with respect to such costs and expenses. Vendor shall make commercially
reasonable efforts to mitigate its expenses by canceling commitments for the
purchase of Products and/or Services or assigning, at Impsat's option, any such
commitments to Impsat.
(d) In furtherance of Impsat's obligations under subsection (c) of this
Section and of subsection (c) of the Section in the similar turnkey project
agreement for the Companion Subnetwork, Impsat shall issue to NNC, for the
benefit of NNC, Nortel-Argentina and Nortel-Brazil, upon execution of this
Agreement, an irrevocable standby letter of credit in favor of Vendor, confirmed
by a United States bank acceptable to Vendor, substantially in the form attached
hereto as Exhibit N and received by Vendor within ten (10) calendar days after
execution of this Agreement. The standby letter of credit shall be in the amount
of [ ] Dollars (US$[ ]) and shall be valid until [
] The Parties agree that only one standby letter of credit in the amount
indicated in the previous sentence shall be issued by Impsat to NNC in order to
comply with the obligations of this Agreement and the turnkey project agreement
for the Companion Subnetwork. Vendor agrees to pay the cost associated with the
issuance of the standby letter of credit. NNC, for its own benefit and for the
benefit of Nortel-Argentina and Nortel-Brazil, shall have a right to draw down
on the standby letter of credit in the event (i) the Vendor Financing Agreement
is not executed within thirty (30) days of the execution of this Agreement, or
(ii) any of the conditions precedent for the Initial Draw under the Vendor
Financing Agreement have not been satisfied on or prior to the Outside Date and
upon presentation of an invoice pursuant to subsection (c) of this Section 9.3.
The Parties agree that the value of the standby letter of credit is only an
approximation of the costs Vendor expects to incur by the Outside Date and is in
no way a limitation on the costs which Impsat shall be required to pay Vendor as
provided in subsection (c) of this Section 9.3.
(e) The Vendor, in addition to its other rights, shall have the right to
terminate this Agreement by written notice to Impsat, effective immediately upon
delivery of such notice, without any penalty or prejudice to its rights or
remedies hereunder or at law or in equity, if for any reason: (i) an Event of
Default exists under the Vendor Financing Agreement (as such term is defined in
the Vendor Financing Agreement), except if there are Available Funds, as defined
in subsection (f) of this Section 9.3; or (ii) the Vendor has
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properly suspended the performance of the Work in whole or in part in accordance
with subsection (f) of this Section and such suspension continues for longer
than one hundred and eighty (180) days; provided that such Event of Default or
the reasons authorizing such suspension are continuing at the time of delivery
of such termination notice.
(f) The Parties further agree that the Vendor's obligation to sell, supply
or deliver the Work shall at all times be subject to Impsat having available
under the Vendor Financing Agreement or from any other source adequately
demonstrated by Impsat ("Available Funds") funds to pay for Work the Vendor is
required to perform hereunder. The Vendor shall have the right to suspend the
performance of Work hereunder, in whole or in part, upon written notice to
Impsat effective immediately, if at any time: (y) an Event of Default (as
defined in the Vendor Financing Agreement) exists and is continuing under the
Vendor Financing Agreement and (z) Impsat fails to provide the Vendor with
adequate assurance relating to the existence of Available Funds within ten (10)
days after receiving a written request by the Vendor to provide such assurance.
Any delay directly resulting from a suspension of Work permissible under this
Section 9.3 shall not be deemed to be a delay by the Vendor for any reason
hereunder, and the Vendor shall not be obligated to pay any penalty or other
amount as a result thereof.
(g) For the avoidance of doubt, and notwithstanding any other provision in
this Agreement to the contrary, all Work performed hereunder by Vendor shall be
subject to payment by Impsat, and payment by Impsat for such Work shall not be
subject to any limitation or delay based on availability of funds to Impsat
under the Vendor Financing Agreement or otherwise.
9.4 Disputed Invoices.
If Impsat, within ten (10) days of receipt of an invoice from Vendor,
notifies the Vendor that Impsat disputes any amount invoiced by the Vendor to
Impsat, then each Party shall provide to the other Party all information
reasonably requested by such other Party which it has to support its position
regarding the disputed portion of the invoice and shall proceed in good faith
and in a timely manner to resolve such disputed portion. Impsat's obligation to
pay the disputed portion of any invoice shall be suspended for such period of
time as is reasonably required to resolve any such dispute; provided, that any
disputed amount that is subsequently determined to be payable by Impsat to the
Vendor as of the invoice date shall bear interest at the rate of one percent
(1.0%) per month from the original due date until the date of actual full
payment.
9.5 Late Payments.
Any amount owed by Impsat to the Vendor hereunder that is not paid when due
shall bear interest at a rate of one percent (1.0%) per month from the original
due date until the date of actual full payment.
9.6 Right of Offset.
One Party making payment to another Party pursuant to this Agreement may
reduce the amount of such payment by the amount of money owed pursuant to this
Agreement to the Party making payment by the Party receiving payment; provided,
however,
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that Impsat shall have no right of offset under the Vendor Financing Agreement
or against third-party lenders.
9.7 Taxes.
(a) Vendor agrees to ensure that it is in good standing and is
appropriately registered, including without limitation with respect to Taxes, in
any country, state or other jurisdiction where legally required. In addition,
Vendor agrees to cooperate and assist Impsat in Impsat's efforts (i) to have
Products which are the subject of this Agreement made exempt from VAT, whether
in the manufacture of the Products or related to the importation or location or
Installation of the Products, (ii) to request revisions, drawbacks, remissions,
reclassifications or the like in the jurisdictions identified by Impsat; or
(iii) to reduce or eliminate VAT (including the provision of applicable
certifications and forms) and to obtain any available refunds of VAT, provided
that Vendor shall not be required to act other than in accordance with the
relevant Applicable Laws then in force. Impsat shall reimburse Vendor, in
accordance with Section 9.2, for any reasonable costs (including the reasonable
fees and expenses of legal counsel, accountants and other advisors) incurred by
Vendor under this Section 9.7(a), provided that Impsat was notified and has
consented to the incurrence of such costs, fees and expenses. In addition, if
any taxing authority determines that Vendor followed a certain course of action
pursuant to subsections (i) through (iii) above for which it was ineligible
under Applicable Law which Impsat has requested or to which Impsat has
consented, Impsat agrees to indemnify, defend and hold Vendor harmless pursuant
to the procedures set forth in Section 13.6 for all taxes, penalties, interest
payments, fines and any other out-of-pocket costs Vendor incurs in connection
with such matters.
(b) Prior to the date of Final Acceptance of the Subnetwork or any
Functional Unit thereof, Vendor shall provide evidence of having made all
payments for Taxes included in the Aggregate Price which Vendor is required to
pay on Impsat's behalf where Impsat is listed as the payor, or the portion
thereof attributable to a particular Functional Unit, which evidence shall be
provided within sixty (60) days after the date of each such payment.
(c) As part of the Work, Vendor shall obtain at its own expense any import
license or other official authorization and carry out all customs formalities
necessary for the importation or exportation of goods in connection with such
Work and pay any applicable duties or other Taxes or charges.
(d) Withholding Tax.
(i) If withholding of any Tax is required in respect of any payment
by Impsat to Vendor hereunder, Impsat shall (i) withhold the
appropriate amount from such payment, (ii) pay such amount to the
relevant authorities in accordance with the Applicable Laws, and
(iii) pay Vendor an additional amount such that the net amount
received by Vendor is the amount Vendor would have received in
the absence of such withholding, except no additional amount
shall be paid to Vendor if and to the extent any such withholding
would not have been required if Vendor
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had satisfied its other Tax payment obligations. If Impsat is
required to withhold any Tax in respect of any payment to Vendor
by Impsat hereunder, Impsat shall provide to Vendor, within
fifteen (15) calendar days of the relevant Tax payment, a
certified copy of an official tax receipt for any Tax which is
retained from any payment due to Vendor or for any Tax which is
paid on behalf of Vendor. All such receipts shall be in the name
of Vendor. Vendor agrees to complete and provide to Impsat within
a reasonable period of time, or if required, to the applicable
taxing authority, such forms, certifications or other documents
as may be reasonably requested by Impsat, in order to allow it to
make payments to Vendor without any deduction or withholding on
account of withholding Taxes (or at a reduced rate thereof) or to
receive a refund of any amounts deducted or withheld on account
of withholding Taxes.
(ii) If Vendor shall become aware that it is entitled to receive a
refund or benefit from a credit from a relevant taxing or
governmental authority in respect of a Tax as to which Impsat has
paid an additional amount pursuant to subsection 9.7(d)(i) above,
Vendor shall promptly notify Impsat of the availability of such
refund or the benefit of such credit and shall, within a
reasonable period of time after receipt of a request by Impsat
(whether as a result of notification that it has made to Impsat
or otherwise), make a claim to such taxing or governmental
authority for such refund or the benefit of the applicable tax
credit at Impsat's expense. If Vendor receives a refund or the
benefit of such applicable tax credit in respect of a Tax as to
which Impsat has paid an additional amount pursuant to subsection
9.7(d)(i), or if, as a result of Impsat's payment of such
additional amounts, Vendor or any other member of an affiliated
group of which Vendor is a member, receives a credit against
Taxes imposed on its income or franchise taxes imposed on it by
the country under the laws of which it is organized or any
political subdivision thereof, Vendor shall promptly notify
Impsat of such refund or the benefit of the applicable tax credit
and shall within 30 days from the date of receipt of such refund
or the benefit of such tax credit pay over the amount of such
refund or benefit of such applicable tax credit (including any
interest paid or credited by the relevant taxing or governmental
authority with respect to such refund or the benefit of the
applicable tax credit) to Impsat (but only to the extent of the
additional payments made by Impsat under subsection 9.7(d)(i)
above with respect to the Tax giving rise to such refund or the
benefit of the applicable tax credit), net of all out-of-pocket
expenses of Vendor which it would not have incurred but for the
application of this paragraph; provided, however, that Impsat,
upon the request of Vendor, agrees to
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repay the amount paid over to Impsat (plus penalties, interest or
other charges due to the appropriate authorities in connection
therewith) to Vendor in the event Vendor is required to repay
such refund or credit to such relevant authority.
(iii) In the event that Vendor must engage service providers from
outside Argentina and/or place service providers from outside
Argentina onto the Nortel-Argentina payroll, Impsat shall be
required to pay the additional withholding taxes and/or the
additional tax burden with respect to such service providers;
provided, however, that any such additional payments shall not
exceed [ ] Dollars (US$[ ]) in the aggregate.
(e) Where Vendor cannot act on behalf of Impsat in making any payment,
Impsat shall directly pay all applicable customs fees, import duties and similar
charges to the appropriate customs or taxing authority out of funds provided by
Vendor.
ARTICLE X.
SHIPPING, LOGISTICS, IMPORTATION; TITLE AND RISK OF LOSS
10.1 Title and Risk of Loss - General.
The Vendor shall retain title with respect to each Item of
Telecommunications Equipment delivered hereunder until shipment of such Item of
Telecommunications Equipment, whereupon title to such Item of Telecommunications
Equipment shall pass to Impsat (with the exception of Software Elements
contained therein). The Vendor shall retain title with respect to each Network
Element Facility and each Item of Product contained therein (excluding each Item
of Telecommunications Equipment for which title has already passed to Impsat
pursuant to the previous sentence of this Section 10.1) until the earlier to
occur of (i) the earlier of (x) Provisional Acceptance of the Network or (y) In
Revenue Service of the Functional Unit that includes such Network Element
Facility, or (ii) if different from (i), as otherwise required by Applicable
Law, whereupon title to such Network Element Facility as a whole shall pass to
Impsat (with the exception of Software Elements). Risk of loss with respect to
such Network Element Facility and each Item of Product (including
Telecommunications Equipment) contained therein shall pass to Impsat upon the
earlier to occur of (i) In Revenue Service of the Functional Unit that contains
such Network Element Facility and Equipment and (ii) Provisional Acceptance of
the Network. Until such time as risk of loss for each Item of Product and each
Network Element Facility passes to Impsat, Vendor shall either (i) maintain
insurance coverage at its sole cost and expense for each Item of Product and
each Network Element Facility in accordance with the provisions of Article XI,
or (ii) reimburse Impsat for all costs and expenses incurred by Impsat to insure
each Item of Product and each Network Element Facility, including all premiums
and deductibles related thereto, if Vendor is unable to or does not obtain such
insurance coverage. If Vendor chooses to carry the insurance coverage in its own
name, Vendor agrees to prosecute diligently any and all claims and, if title has
passed to Impsat, to turn the proceeds of any recovery over to Impsat plus the
amount of any deductible deducted therefrom. The Parties shall execute all
appropriate documents to evidence the conveyance of title pursuant to this
Section 10.1, including without limitation any bills of sale or deeds of title.
Title to Software
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Elements shall not pass to Impsat at any time but shall instead by licensed
under Section 7.2. The foregoing shall in no way restrict Impsat's inspection
rights pursuant to Section 3.12 nor modify any warranties of NNC and its
Subsidiaries as provided in Article XII.
10.2 Shipping.
The Vendor shall pack and secure each Item of Products in an appropriate
manner so as to ensure the protection of such Item during transportation to and
within Argentina, as applicable. The Vendor shall replace any Item of Product
that is found to have been damaged due to inadequate packing or as a result of
transportation.
10.3 Importation and Inland Transportation.
The Vendor shall be responsible (i) for the importation of all Products
(including tangible embodiments of Network Software as aforesaid) sourced
outside of Argentina or Brazil, as applicable, into Argentina or Brazil, and the
transportation of all Items of Products from the port of entry in Argentina or
Brazil, as the case may be, to the Sites where such Items are to be installed;
and (ii) for the transportation of all Items sourced in Argentina or Brazil, as
the case may be, from the source to the Sites where such Items are to be
installed. Prior to the importation of any Product into Argentina, Vendor shall
provide Impsat in writing with Vendor's formal position on the harmonized code
and the amount of the import duty payable with respect to such Product. If
Impsat agrees with the position taken by Vendor, then Impsat shall be the
importer of record. If Impsat, on a reasonable basis, does not agree on a case
by case basis with the Vendor's proposed harmonized codes, the Vendor shall
choose either (x) to accept Impsat's proposed harmonized code, in which case
Impsat shall be the importer of record or (y) to reject Impsat's proposed
harmonized code, in which case Vendor shall be the importer of record. If the
cost of the import duties using the proposed harmonized codes offered by Impsat
are lower than the proposed harmonized codes offered by Vendor, then such
savings shall be credited to Impsat on the date of importation; provided,
however, that in order for Impsat to receive such credit, Impsat must provide
for Vendor's review a calculation detailing the achieved savings claimed by
Impsat. Notwithstanding anything above to the contrary, in all cases the prices
quoted on the Product List and Pricing Schedule shall be the maximum amounts
paid by Impsat. The Vendor shall pay when due, before any liens can attach to
the items in question, all costs of importation and transportation.
10.4 Export and Import Licenses and Work Permits.
(a) The Vendor shall be responsible for obtaining all export licenses
and/or complying with other Applicable Laws applicable to the exportation from
the country of origin, transshipment if required and importation into Argentina
of all Products related to the Subnetwork. The Vendor shall also be responsible
for obtaining any import licenses and/or other Applicable Permits for the
importation of the Products into Argentina and the performance of Services
therein, including all entry or work permits, visas or authorizations for
personnel engaged by the Vendor in connection with the Subnetwork, all as
required by the Argentine government, as the case may be, or any agency or
political subdivision thereof. The Vendor shall pay all applicable license fees
and other costs related to the foregoing.
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Impsat shall assist the Vendor as Vendor may reasonably request in obtaining any
such required approvals but shall not be required to incur any out-of-pocket
costs in doing so.
(b) The Parties acknowledge that certain Products and Services provided
hereunder may be subject to laws and regulations regarding their export and
import, and that the use, distribution, transfer or transmission of certain
Products and Services may be required to be authorized under such laws and
regulations. Vendor shall use reasonable efforts to obtain all required export
licenses in such a manner that such licenses will permit Impsat to use, transfer
or move such Products and Services as needed throughout the Project Countries.
In addition, unless otherwise agreed to by the Parties in this Agreement or in
any other agreement executed by the Parties, Impsat shall be permitted to import
and export Products and the tangible results of the Services provided hereunder
to and from any Project Country for use in the Project so long as the
importation and/or exportation of such Products and the tangible results of such
Services comply with all Applicable Laws.
ARTICLE XI.
INSURANCE
11.1 Maintenance of Insurance. At all times during the Term of this
Agreement, the Vendor shall maintain the following insurance policies:
(a) Workers' Compensation or similar insurance coverage and Employers'
Liability Insurance sufficient to satisfy all applicable statutory requirements.
(b) Comprehensive General Public Liability Insurance, covering personal
injury and/or tangible property damage, with combined single limits of not less
than [ ] U.S. Dollars (US$ [ ]) for claims of injury or death of any persons or
loss of or damage to property resulting from any one accident. Such
Comprehensive General Liability shall also include Contractual Liability
Coverage which shall specifically apply to the obligations assumed by Vendor
under the terms and conditions of this Agreement.
(c) Comprehensive Automobile Liability insurance covering all vehicles and
vehicular equipment owned, hired or in the custody and control of Vendor and
complying with all Applicable Laws with limits not less than the statutorily
required limits in Argentina.
(d) Excess Comprehensive General Liability and Auto Liability insurance for
the difference in the amounts insured under Sections 11.1(b) and 11.1(c) and [ ]
U.S. Dollars (US$[ ]).
(e) All Risk Insurance in respect of all property of Vendor, its respective
officers, agents and employees connected with the performance of the Work
against all loss or damage from whatever cause, including but not limited to
fire, flood, earthquake and testing perils. Such All Risk Insurance shall also
provide, with not less than the statutorily required limits in Argentina, (i)
coverage for removal of debris and insuring the Products, Structures and Network
Element Facilities, and all fixtures, materials and other property that are part
thereof, (ii) off-site coverage with sublimits sufficient to insure the full
replacement value of any Products or materials not stored on a Site, and (iii)
permission for Impsat to occupy and operate Functional Units that have been
placed into In Revenue Service.
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Insurance under such policy shall remain in full force and effect until risk of
loss is transferred to Impsat in accordance with Section 10.1.
(f) Transit Insurance including inland, air, waterways and Marine Cargo
coverage including War (other than on land) in an amount sufficient to cover the
expected highest value of any one shipment. Coverage to include Institute Cargo
Clauses, all risks 1.1.63, Institute War Clauses, London Malicious Damage
Clause, and Institute Strikes Riots and Civil Commotion Clauses or their
equivalent.
11.2 Additional Requirements.
(a) All the insurance listed in Sections 10.1 and 11.1 above shall be
effected with a creditworthy insurer, and shall be endorsed to provide Impsat
with at least thirty (30) days prior written notice of cancellation or material
change.
(b) With the exception of Workmen's Compensation Insurance (or similar
insurance coverage) and All Risk Insurance, all insurance listed in Section 11.1
shall name Impsat as an additional insured as to operations hereunder, in which
event Vendor's insurance shall be primary to any insurance carried by Impsat.
(c) All Risk Insurance required pursuant to Section 11.1 above shall
contain a waiver of subrogation as against Impsat, and its Affiliates, officers
and directors.
(d) The limits specified herein are minimum requirements and shall not be
construed in any way as limits of liability or as constituting acceptance by
Impsat of such responsibility for financial liabilities in excess of such
limits. Vendor shall bear all deductibles applicable to any insurance.
(e) If it is judicially determined that the monetary limits of insurance
required hereunder or of any indemnity voluntarily assumed under the terms and
conditions of this Agreement which Vendor agrees will be supported either by
available liability insurance or voluntarily self-insured, in part or whole,
exceeds the maximum limits permitted under Applicable Law, it is agreed that
said insurance requirements or indemnity shall automatically be amended to
conform to such monetary limits as may be specified by Applicable Law.
(f) If Vendor fails to effect or keep in force any of the insurance
required under this Agreement, Impsat may effect and keep in force any such
insurance and pay such premiums as may be necessary for that purpose and from
time to time deduct the amount so paid by Impsat from any money due or which may
become due to Vendor hereunder or recover the same as a debt due from Vendor,
provided that Impsat is not in default hereunder.
(g) Each Party shall give the other prompt notification of any claim with
respect to any of the insurance to be provided hereunder, accompanied by full
details giving rise to such claim. Each Party shall afford the other all such
assistance as may be required for the preparation and negotiation of insurance
claims.
(h) Vendor shall report to Impsat as soon as practicable all accidents or
occurrences resulting in injuries to Vendor's employees or third parties, or
damage to
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property of third parties, arising out of our during the course of services for
Impsat by Vendor.
(i) Vendor may organize such levels of deductibles, excesses and
self-insurance as it considers appropriate and which are within prudent industry
standards.
(j) The insurance requirements of this Article XI will remain in place with
respect to each Functional Unit or the Subnetwork, as the case may be, and will
not in any way be diminished or reduced until the transfer of title and risk of
loss shall have passed to Impsat, even in the event of the sale of substantially
all the assets of Vendor by way of a merger, consolidation or sale of assets.
(k) If the Vendor fails to satisfy the requirements of any Applicable Law
related to safety measures and as a result insurance coverage is denied, the
Vendor shall still be liable for any claims, damages or liabilities resulting
from such failure.
11.3 Subcontractors' Insurance Requirements.
The Vendor shall obtain and maintain, or require each of its Subcontractors
to obtain and maintain, during the time any such Subcontractors are engaged in
providing Products and Services hereunder, adequate insurance coverage
consistent with the requirements of Section 11.1.
11.4 Evidence of Insurance.
The Vendor shall furnish Impsat with certificates of insurance
required hereunder in form and substance reasonably satisfactory to Impsat.
ARTICLE XII.
PRODUCT WARRANTIES
12.1 Equipment and Services Warranty.
(a) Vendor warrants that the Equipment (other than Network Software, the
warranty for which is separately covered in Section 12.2 hereof) provided,
furnished and performed under this Agreement shall be free from Defects and
Deficiencies, shall comply with all Applicable Laws and shall conform to the
applicable portions of the Specifications and Standards and the other provisions
of the Contract Documents, for a period of [ ] from the date of Provisional
Acceptance of the Subnetwork (the "Warranty Period"). In addition, all Services
furnished by Vendor hereunder shall be free of Defects and Deficiencies. Any and
all claims for breach of either warranty are conclusively deemed waived unless
made during the Warranty Period. Performance of Vendor's obligations hereunder
shall not extend the Warranty Period, except that any Equipment and/or Services
repaired, replaced or corrected during the Warranty Period shall continue to be
warranted for the longer of (i) the remainder of the Warranty Period or (ii)
[ ].
(b) Vendor agrees to obtain warranties from its Subcontractors and third
party contractors on the best possible terms (both in terms of scope and length
of coverage), but in no event for less than the Warranty Period, and to provide
contractually that Impsat
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may, in its sole discretion, enforce such third party warranties after the
expiration of the Warranty Period; provided, however, that Vendor shall obtain
fiber optic cable with a design life of at least [ ], and the manufacturer(s) of
such fiber optic cable shall provide a warranty for no less than [ ] on all such
fiber optic cable.
(c) Vendor's sole obligation and Impsat's exclusive remedy under the
warranty in Section 12.1(a) is limited to the replacement or repair, at Vendor's
cost, of the defective Equipment component, or the correction of the faulty
Services. Such replacement Equipment may be new or reconditioned to perform as
new, at Vendor's option. Vendor shall be responsible for transportation costs,
duties, insurance and Taxes for replacement or repaired Equipment shipped to and
from Impsat. Title to defective or replacement Equipment shall pass to Vendor or
Impsat, as appropriate, upon receipt thereof. Vendor shall use reasonable
efforts to minimize the period of time that the Network, the Subnetwork, any
Functional Unit, any Network Subsystem, any Network Element Facility or any
Network Element is out of service for testing and repair. Impsat agrees to
cooperate with Vendor to facilitate Vendor's repair activity.
(d) The warranties set forth in this Section 12.1 shall not apply to any
Equipment or Services where the non-conformance is due to (i) accident, fire or
explosion, any or all of which were not the result of the performance of Work by
Vendor; (ii) direct lightning strikes; (iii) alteration, abuse, misuse or repair
not performed by Vendor; (iv) improper storage; (v) failure by Impsat to comply
with all environmental requirements for Products as specified by Vendor or any
other applicable Subcontractor, such as but not limited to temperature and
humidity ranges; (vi) any error, act or omission by anyone other than Vendor;
(vii) use of a Product provided by Vendor in conjunction with another product
not provided to Impsat pursuant to this Agreement that does not satisfy the
Specifications and Standards and the other provisions of the Contract Documents;
(viii) if applicable, where written notice of the non-conformance (once Impsat
becomes aware of such non-conformance) has not been given to Vendor within the
applicable notice period; (ix) a defect in the Impsat-Provided Equipment; or (x)
improper performance of installation, maintenance, operation or other service in
connection with Products, provided that such service was not performed by
Vendor, on Vendor's behalf or at Vendor's direction; provided, however, that if
Impsat contacts Vendor regarding a non-conformance issue, and Vendor fails to
attempt to remedy or correct such non-conformance within the time periods
provided for in the Contract Documents, Impsat may take reasonable steps to
mitigate and prevent further damage from such non-conformance without affecting
or diminishing the warranties provided for in this Section 12.1, provided that
any Person engaged by Impsat with regard to such mitigation efforts shall be a
Vendor certified technician or, if not available, a similarly qualified
technician.
(e) During the Warranty Period, Impsat may employ a Person other than
Vendor to provide or may on its own provide on-going, routine maintenance
services on the Subnetwork; provided, however, that such Person or Impsat must
be a Vendor certified technician; provided, further, that the warranties
provided in this Section 12.1 shall not apply to any Network Element on which a
non-certified Vendor technician performs services.
(f) Vendor shall bear the Costs of each repair, replacement or improvement
required during the Warranty Period. As used herein, "Costs" means the costs
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of making a repair, including the cost of components, equipment or materials
requiring replacement, the cost of any additional equipment necessary to effect
the repair, the cost of reburying any previously buried portion, the cost of
labor and engineering assistance or development required to make the repair and
all necessary associated costs, such as, but not limited to, Taxes, shipping and
customs and services that may be required to make the repair.
(g) Vendor and Vendor's suppliers, as appropriate, shall not have any
responsibility to Impsat's customers for warranties offered by Impsat to such
customers and Impsat hereby indemnifies, defends and holds harmless pursuant to
the procedures set forth in Section 13.6 the Vendor, the Vendor's Subsidiaries
and the Vendor's suppliers, as appropriate, from (i) any claims, damages or
liabilities arising out of, or relating to, any warranties offered by Impsat to
Impsat's customers, or (ii) any claims by a third party in respect of any
malfunction, defect or error in any product or service offered by Impsat that is
ultimately derived from the Equipment and Services provided pursuant to this
Agreement.
12.2 Software Warranty.
(a) Each Software Element comprised in the Network Software supplied by the
Vendor hereunder (whether developed by the Vendor or procured from a third-party
supplier), including all updates and revisions thereof, when delivered to Impsat
and installed by the Vendor and operated in accordance with the Contract
Documents, shall (i) be free from Defects and Deficiencies which result in
malfunctions which materially affect the use of such Software Element in
accordance with the Specifications and Standards and the other provisions of the
Contract Documents, (ii) shall function in accordance with all applicable
provisions of the Contract Documents, (iii) shall comply with all Applicable
Laws and (iv) are and shall remain Year 2000 Compliant. The warranties described
in this Section 12.2 shall apply for a period of [ ] extending from the date of
Provisional Acceptance of the Subnetwork. During such period the Vendor shall
provide Impsat with software support and maintenance for such Software Element
in accordance with support quality standards specified in Article VI and as
otherwise provided in the Contract Documents; provided, however, that with
regard to the Year 2000 Compliant warranty, if a Software Element is not Year
2000 Compliant, Impsat's sole remedy and Vendor's sole obligation under this
Section 12.2(a) is for Vendor to correct such failure through, at Vendor's
option, the repair, replacement or modification of the relevant Software
Element, all in the time, manner and upon the conditions set out in Exhibit I.
The foregoing does not constitute a commitment by Vendor (i) to extend the
Warranty Period or (ii) that the date format used by a Software Element complies
with any particular standard. The foregoing warranties shall only apply to
Software Elements in the form provided and/or modified and enhanced by the
Vendor. Modifications of any Software Element by any party other than the
Vendor, any of its Affiliates or a third party authorized by the Vendor shall
void the obligations of the Vendor under this Section with respect to such
modified Software Element.
(b) Vendor warrants that the Network Software will not contain a lockup or
backdoor program which is designed by Vendor to deliberately lock-up the Network
Software or which provides an unauthorized third-party with access to the
Network Software. Vendor further warrants that (i) during the Installation of
the Network Software it will take reasonable steps to protect the Network
Software against viruses, Trojan horses, trap doors, backdoors and similar
devices that could disrupt or disable a computer system or any of its
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components, and (ii) it will not, under any circumstances, including enforcement
of a valid contract right, install or trigger a lockup program or device which
in any manner interferes with Impsat's use of the Network Software or operation
of the Network, the Subnetwork or any part thereof. Impsat's sole remedy and
Vendor's sole obligation under this Section 12.2(b) is for Vendor to correct
such failure or eliminate such program or device through, at Vendor's option,
the repair, replacement or modification of the relevant Software Element, all in
the time, manner and upon the conditions set out in Exhibit I.
(c) Impsat warrants that all Impsat-Provided Equipment shall be Year 2000
Complaint. If an Item of Impsat-Provided Equipment is not Year 2000 Compliant,
Vendor's sole remedy and Impsat's sole obligation under this Section 12.2(c) is
for Impsat to correct such failure at its sole cost and expense through, at
Impsat's option, the repair, replacement or modification of the relevant
Impsat-Provided Equipment. In addition, the completion milestones set forth in
the Project Implementation Plan shall be extended by the length of any delay in
completing a particular portion of the Subnetwork if such delay is the direct
result of a failure of the Impsat-Provided Equipment to be Year 2000 Compliant.
12.3 Civil Work Warranty.
(a) Vendor warrants that the Civil Work and the Structures shall be free
from Defects and Deficiencies, shall comply with all Applicable Laws and shall
conform to the applicable portions of the Specifications and Standards and the
other provisions of the Contract Documents, for a period of [ ] from the date of
Provisional Acceptance of the Subnetwork or such longer period of time as
provided by Applicable Law. Performance of Vendor's obligations hereunder shall
not extend the Warranty Period, except that any Civil Work repaired or corrected
during the Warranty Period shall continue to be warranted for the balance of the
Warranty Period.
(b) When applicable, Vendor agrees to obtain warranties from its
Subcontractors and third party contractors on the best possible terms (both in
terms of scope and length of coverage), but in no event for less than the
Warranty Period, and to provide contractually that Impsat may, in its sole
discretion, enforce such third party warranties.
(c) Vendor's sole obligation and Impsat's exclusive remedy under the
warranty in Section 12.3(a) is limited to the repair, at Vendor's cost, of the
defective Civil Work and Structures. If Vendor is in material breach in
performing the Civil Work and completing the Structures, Impsat shall be
entitled to engage its own subcontractor to complete or repair the defective
Civil Work and Structures, provided that (i) Vendor has not commenced to cure
the defects within [ ] of receiving written notice thereof from Impsat
or has not continued diligently to attempt to cure after so commencing and (ii)
Vendor personnel, or, in Vendor's absence, Impsat personnel shall supervise any
such work.
(d) Vendor shall use reasonable efforts to minimize the period of time that
the Network, the Subnetwork, any Functional Unit, any Network Subsystem, any
Network Element Facility or any Network Element is out of service for testing
and repair. Impsat agrees to cooperate with Vendor to facilitate Vendor's repair
activity.
(e) During the Warranty Period, Impsat may employ a Person other than
Vendor to provide or may on its own provide on-going, routine maintenance
services on the
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Subnetwork; provided, however, that such Person or Impsat must be a Vendor
certified technician; provided, further, that the warranties provided in this
Section 12.3 shall not apply to any Network Element on which a non-certified
Vendor technician performs services.
(f) Vendor shall bear the Costs of each repair or improvement required
during the Civil Work Warranty Period.
(g) Vendor and Vendor's suppliers, as appropriate, shall not have any
responsibility to Impsat's customers for warranties offered by Impsat to such
customers and Impsat hereby indemnifies, defends and holds harmless, pursuant to
the procedures set forth in Section 13.6, the Vendor, the Vendor's Subsidiaries
and the Vendor's suppliers, as appropriate, from (i) any claims, damages or
liabilities arising out of, or relating to, any warranties offered by Impsat to
Impsat's customers, or (ii) any claims by a third party in respect of any
malfunction, defect or error in any product or service offered by Impsat that is
ultimately derived from the Civil Work provided pursuant to this Agreement.
12.4 Warranty Limitations.
(a) THE WARRANTIES SET FORTH HEREIN WILL CONSTITUTE THE ONLY WARRANTIES
WITH RESPECT TO THE EQUIPMENT, SERVICES AND SOFTWARE ELEMENTS PROVIDED, AND THE
REMEDIES SET FORTH HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES OF IMPSAT, ITS
SUBSIDIARIES AND AFFILIATES UNDER SUCH WARRANTIES. THEY ARE IN LIEU OF ALL OTHER
WARRANTIES WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE. NNC, ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE
LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES.
THIS LIMITATION OF WARRANTIES WAS A MATERIAL FACTOR IN THE ESTABLISHMENT OF THE
LICENSE FEE CHARGED FOR THE SOFTWARE LICENSE.
(b) Vendor's obligations under this Article shall not apply to (i)
Equipment or components thereof such as fuses and bulbs that are normally
consumed in operation before the expiration of the Warranty Period; (ii) Defects
or Deficiencies that are the result of storage, installation, use, maintenance
or repair by Impsat that is inconsistent with industry standards or outside the
environmental parameters defined in the Specifications and Standards; (iii)
Defects and Deficiencies that are the direct result of the operation of
Equipment with hardware not provided by Vendor that does not comply with the
Specifications and Standards and the other provisions of the Contract Documents
related thereto or with applicable international standards; and (iv) Equipment
or components thereof that have been involved in an accident, fire, explosion,
Act of God or any other cause not attributable to Vendor, or (v) Defects or
Deficiencies that result from the alteration, repair, installation or relocation
of Equipment by any party other than Vendor or Vendor's agents. For purposes of
clause (v), "install" shall not mean the routine connection or plug-in of the
components done in accordance with the NNCP guidelines.
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ARTICLE XIII.
INDEMNITIES AND LIMITATIONS ON LIABILITY
13.1 Vendor Indemnity.
(a) General. The Vendor shall be liable for and shall indemnify, defend and
hold harmless Impsat, its Affiliates and its Subsidiaries, and their officers,
directors, employees, agents and representatives, to the fullest extent
permitted by law, against any Losses arising from or relating to any Proceeding
in respect of: (i) bodily injuries to or the death of any person whomsoever
caused by the Vendor or Vendor's employees, officers, directors, agents,
representatives or Subcontractors in its performance of this Agreement; (ii)
damage to any tangible property, in either case due to acts, negligence or
omissions of the Vendor or the Vendor's employees, officers, directors, agents,
representatives or Subcontractors; (iii) any breach of any of the Vendor's
representations or warranties set forth in Section 15.1; (iv) any violation or
failure to comply with any Applicable Laws or Applicable Permits by Vendor or
any Subcontractor, including payment of wages and employee benefits and
withholding of employment related Taxes; (v) any claims of Vendor's
Subcontractors with respect to their relationship with Vendor; or (vi) any
willful misconduct or grossly negligent act or failure to act by the Vendor
related to this Agreement. Notwithstanding the foregoing, the Vendor shall not
be liable for any Losses to the extent that such Losses arise out of the
negligence or willful misconduct of Impsat, its Affiliates or Subsidiaries, or
their respective officers, directors, employees, agents or representatives.
(b) IPR Indemnity.
(i) NNC agrees to indemnify, defend and hold harmless Impsat and its
Affiliates with respect to any suit, claim, or proceeding brought
against Impsat or its Affiliates alleging that use of the Products by
Impsat or its Affiliates constitutes an infringement of any patent,
copyright or any other intellectual property right in the U.S.,
Canada, or Argentina, or any costs, losses, damages or expenses of
Impsat resulting from the same (collectively, "Damages"). The term
"Damages" as used in this Section 13.1(b) is not limited to matters
asserted by third parties against Impsat, but includes Damages
incurred or sustained by Impsat in the absence of third party claims.
NNC agrees to indemnify, defend and hold harmless Impsat and its
Affiliates against any such claims and to pay all litigation costs
(including the costs of investigation), reasonable attorney's fees,
settlement payments and any damages awarded in any judgment arising
from such suit, claim or proceeding in accordance with the provisions
of this Article XIII.
(ii) In the event that an injunction is obtained against the use by Impsat
or its Affiliates of Products arising from such patent or copyright
suit, claim or proceeding, in whole or in part, NNC shall, at its
option, either: (i) procure for Impsat and its Affiliates the right to
continue using the portion of a System
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enjoined from use; or (ii) replace or modify the same in a manner that
is consistent with the Specifications and Standards and the other
requirements of the Contract Documents.
(iii) NNC's indemnity obligations under Section 13.1(b)(i) shall not apply
to infringement claims based on the use of the Products in combination
with any other apparatus or material not supplied by NNC (other than
the Impsat-Provided Equipment) to the extent that the claims arise
from such combination usage.
13.2 Impsat Indemnity.
Impsat shall be liable for and shall indemnify, defend and hold
harmless the Vendor, its Affiliates and Subsidiaries, and their officers,
directors, employees, agents and representatives, to the fullest extent
permitted by law, against any Losses arising from or relating to any Proceeding,
in respect of: (i) bodily injuries to or the death of any person whomsoever
caused by Impsat or Impsat's employees, officers, directors, agents,
representatives or subcontractors in its performance of this Agreement; (ii)
damage to any tangible property, in either case due to acts, negligence or
omissions of Impsat or Impsat's employees, officers, directors, agents,
representatives or subcontractors; (iii) any breach of any of Impsat's
representations and warranties set forth in Section 15.2; (iv) any violation by
or failure to comply with any Applicable Laws or Applicable Permits by Impsat or
any of its subcontractors, the compliance with which Vendor is not responsible
for under this Agreement; (v) any claims of a subcontractor of Impsat with
respect to its relationship with Impsat; or (vi) any willful misconduct or
grossly negligent act by Impsat related to this Agreement. Notwithstanding the
foregoing, Impsat shall not be liable for any Losses to the extent that such
Losses arise out of the negligence or willful misconduct of the Vendor, the
Vendor's Affiliates or subsidiaries, or their respective officers, directors,
employees, agents or representatives.
13.3 No Limitation on Other Rights.
Vendor's obligation to indemnify Impsat, and Impsat's obligation to
indemnify Vendor, shall not limit any other rights, including without limitation
rights of contribution which either party may have under statute or common law.
13.4 Limitation.
(a)General. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES of any
kind or nature. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF either party to
the other FOR ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, LOSSES, EXPENSES OR
OBLIGATIONS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE REGARDLESS
OF DEGREE OF FAULT), STRICT LIABILITY, OR OTHERWISE, NOTWITHSTANDING THAT ANY OF
SUCH CLAIMS MAY BE OCCASIONED BY A BREACH OF THIS AGREEMENT, ARISING OUT OF,
CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT OR THE MANUFACTURE, SALE,
LICENSE, DELIVERY, RESALE, REPAIR, REPLACEMENT,
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OR USE OF ANY EQUIPMENT OR THE RENDERING OF ANY SERVICES, EXCEED [ ]
PERCENT ([ ]%) of the AGGREGATE price.
(b)Software License. EXCEPT AS PROVIDED OTHERWISE IN THE CONTRACT
DOCUMENTS, IN NO EVENT SHALL NNC OR ANY OF ITS SUBSIDIARIES OR AFFILIATES BE
LIABLE TO IMPSAT, ITS SUBSIDIARIES OR AFFILIATES FOR: (i) ANY DAMAGES SUFFERED
BY IMPSAT, ITS SUBSIDIARIES OR AFFILIATES TO THE EXTENT THAT SUCH DAMAGES RESULT
FROM THE FAILURE OF IMPSAT, ITS SUBSIDIARIES OR AFFILIATES TO MEET OBLIGATIONS
PURSUANT TO THE VENDOR LICENSE, AND (ii) ANY CLAIM AGAINST IMPSAT OR ITS
SUBSIDIARIES OR AFFILIATES BY ANY THIRD PARTY FOR DAMAGES OF ANY KIND, ANY OR
ALL OF WHICH ARISE FROM OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE
OF THE SOFTWARE ELEMENT GOVERNED BY THE SOFTWARE LICENSE, EVEN IF NNC AND/OR ANY
OF ITS SUBSIDIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
13.5 Cooperation. The indemnified party shall cooperate in all
reasonable respects with the indemnifying party and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the indemnified party may, at its own
cost, participate in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom. The parties shall cooperate with each
other in any notifications of insurers.
13.6 Defense of Claims. If a claim for damages (a "Claim") is to be
made by a party entitled to indemnification hereunder against the indemnifying
party, the party claiming such indemnification shall give written notice (a
"Claim Notice") to the indemnifying party as soon as practicable after the party
entitled to indemnification becomes aware of any fact, condition or event which
may give rise to damages for which indemnification may be sought under this
Article XIII. If any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity hereunder, written notice thereof shall be
given to the indemnifying party as promptly as practicable (and in any event
within ten (10) calendar days after the service of the citation or summons). The
failure of any indemnified party to give timely notice hereunder shall not
affect rights to indemnification hereunder, except to the extent that the
indemnifying party demonstrates actual damage caused by such failure. After such
notice, if the indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated under the terms
of its indemnity hereunder in connection with such lawsuit or action, then the
indemnifying party shall be entitled, if it so elects, (i) to take control of
the defense and investigation of such lawsuit or action, (ii) to employ and
engage attorneys of its own choice to handle and defend the same, at the
indemnifying party's cost, risk and expense unless the named parties to such
action or proceeding include both the indemnifying party and the indemnified
party and the indemnified party has been advised in writing by counsel that
there may be one or more legal defenses available to such indemnified party that
are different from or additional to those available to the indemnifying party,
and (iii) to compromise or settle such Claim, which compromise or settle such
Claim, which compromise or settlement shall be made only with the written
consent of the indemnified party, such consent not to be unreasonably withheld
or delayed. If the indemnifying party fails to assume the defense of such Claim
within ten (10)
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calendar days after receipt of the Claim Notice, the indemnified
party against which such Claim has been asserted will (upon delivering notice to
such effect to the indemnifying party) have the right to undertake, at the
indemnifying party's cost and expense, the defense, compromise or settlement of
such claim on behalf of and for the account and risk of the indemnifying party;
provided, however, that such Claim shall not be compromised or settled without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld. In the event the indemnified party assumes the defense of
the Claim, the indemnified party will keep the indemnifying party reasonably
informed of the progress of any such defense, compromise or settlement. The
indemnifying party shall be liable for any settlement of any action effected
pursuant to and in accordance with this Article XIII and for any final judgment
(subject to any right of appeal), and the indemnifying party agrees to
indemnify, defend and hold harmless an indemnified party from and against any
damages by reason of such settlement or judgment.
ARTICLE XIV.
FAILURE TO DELIVER AND EARLY COMPLETION
14.1 Vendor's Failure to Deliver on Time.
Vendor understands that if Provisional Acceptance of each Network
Subsystem is not achieved by the deadlines set forth on Exhibit C, Impsat will
suffer substantial damages that are impossible to determine as of this date.
Therefore, in the event that the Vendor fails to achieve Provisional Acceptance
of a Network Subsystem in accordance with the deadlines set forth on Exhibit C
(as adjusted to reflect Force Majeure, delays agreed to in connection with
Change Orders and Directed Changes and delays attributable to Impsat, and
subject to any Punch List items that may be agreed in connection with the
conduct of the applicable Acceptance Test), the Vendor shall pay to Impsat, as
liquidated damages and not as a penalty, an amount equal to: the Aggregate Price
(minus the portion of the Aggregate Price allocable to Maintenance Services and
Operating Services and as further adjusted to reflect Change Orders and Directed
Changes) multiplied by the "Coefficient" for such Network Subsystem listed on
Exhibit C multiplied by the number of weeks that elapsed between the Provisional
Acceptance deadline set forth on Exhibit C for such Network Subsystem and the
actual date of Provisional Acceptance of such Network Subsystem multiplied by [
]. The amount of liquidated damages, if any, with respect to a particular
Network Subsystem shall appear as a credit to Impsat on the invoice for the
month in which such Network Subsystem achieved Provisional Acceptance, or if
there is no invoice for a given month against which to credit such liquidated
damages, Impsat shall invoice Vendor for any such liquidated damages, and Vendor
shall pay Impsat such amount within thirty (30) days of such invoice; provided,
however, that the aggregate amount of liquidated damages payable with respect to
all delays under this Section 14.1 plus the liquidated damages payable with
respect to all delays under Section 14.3 shall in no event exceed [ ] percent ([
]%) of the Aggregate Price (minus the portion of the Aggregate Price allocable
to Maintenance Services and Operating Services and as further adjusted to
reflect Change Orders and Directed Changes). For purposes of this Article XIV, a
"week" shall mean a period of seven days or, in the event of a partial week,
five or more days.
14.2 Vendor's Early Completion.
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In the event that the Vendor achieves Provisional Acceptance of a
Network Subsystem in advance of the deadlines set forth on Exhibit C (as
adjusted to reflect Force Majeure, delays agreed to in connection with Change
Orders and Directed Changes and delays attributable to Impsat, and subject to
any Punch List items that may be agreed in connection with the conduct of the
applicable Acceptance Test), Impsat shall pay to Vendor a bonus worth an amount
equal to: the Aggregate Price (minus the portion of the Aggregate Price
allocable to Maintenance Services and Operating Services and as further adjusted
to reflect Change Orders and Directed Changes) multiplied by the "Coefficient"
for such Network Subsystem listed on Exhibit C multiplied by the number of weeks
that the actual date of Provisional Acceptance of the Network Subsystem occurred
in advance of the deadline set forth on Exhibit C for such Network Subsystem
multiplied by [ ]. The amount of bonus, if any, with respect to a particular
Network Subsystem shall appear as an additional charge to Impsat on the invoice
for the month in which such Network Subsystem achieved Provisional Acceptance;
provided, however, that the aggregate amount of bonuses payable with respect to
all early completions hereunder shall in no event exceed [ ] percent ([ ]%) of
the Aggregate Price (minus the portion of the Aggregate Price allocable to
Maintenance Services and Operating Services and as further adjusted to reflect
Change Orders and Directed Changes).
14.3 Performance Related Damages.
Vendor understands that if Provisional Acceptance of the Subnetwork is
not achieved within sixty (60) days after all Functional Units in the Subnetwork
achieve Final Acceptance, Impsat will suffer substantial damages that are
impossible to determine as of this date. Therefore, if Provisional Acceptance of
the Subnetwork does not occur within such period of time, Impsat shall be
entitled to liquidated damages in the amount of $ [ ] per week for each week, up
to [ ] weeks, that the actual date of Provisional Acceptance of the Subnetwork
exceeds [ ] days; provided, however, that the aggregate amount of liquidated
damages payable with respect to all delays under this Section 14.3 plus the
liquidated damages payable with respect to all delays under Section 14.1 shall
in no event exceed [ ] percent ([ ]%) of the Aggregate Price (minus the portion
of the Aggregate Price allocable to Maintenance Services and Operating Services
and as further adjusted to reflect Change Orders and Directed Changes). The
amount of liquidated damages, if any, under this Section 14.3 shall appear as a
credit to Impsat on the invoice for the month in which such liquidated damages
are assessed, or if there is no invoice for a given month against which to
credit such liquidated damages, Impsat shall invoice Vendor for any such
liquidated damages, and Vendor shall pay Impsat such amount within thirty (30)
days of such invoice
ARTICLE XV.
REPRESENTATIONS AND WARRANTIES
15.1 Representations and Warranties of the Vendor.
The Vendor hereby represents and warrants to Impsat as follows:
(a) Due Organization of the Vendor. NNC is a corporation duly
incorporated, validly existing and in good standing under the laws of Canada,
Nortel-
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Argentina is a corporation duly incorporated, validly existing and in
good standing under the laws of Argentina, and NNC and Nortel-Argentina each has
full corporate power and authority to own and operate its respective business
and properties and to carry on its respective business as such business is now
being conducted and each is duly qualified to do business in all jurisdictions
in which the transaction of its business makes such qualification necessary.
(b) Due Authorization of the Vendor; Binding Obligation. NNC and
Nortel-Argentina each has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement has been duly
executed and delivered by NNC and Nortel-Argentina and is the valid and binding
obligation of NNC and Nortel-Argentina, enforceable in accordance with its
terms.
(c) Non-Contravention. The execution, delivery and performance of this
Agreement by NNC and Nortel-Argentina do not and will not, presently or by the
lapse of time, the giving of notice or otherwise, constitute a violation of any
Applicable Laws, of its certificate of incorporation, by laws or similar
organizational document or in any material agreement, instrument or document to
which either NNC or Nortel-Argentina is a party or by which NNC or
Nortel-Argentina is bound.
(d) Vendor License. The Vendor License granted to Impsat pursuant to
Section 7.2(a) and the Vendor IPR licensed hereunder do not infringe upon or
otherwise breach, violate or constitute misappropriation of the rights of any
third party, and no claims have been asserted by any Person against Vendor or
its Subsidiaries with respect to the use of such Vendor IPR which challenge or
call into question the validity or effectiveness of the Vendor License.
15.2 Representations and Warranties of Impsat.
Impsat hereby represents and warrants to the Vendor as follows:
(a) Due Organization of Impsat. Impsat is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority to
enter into this Agreement and perform its obligations hereunder.
(b) Due Authorization of Impsat: Binding Obligation. Impsat has full
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder, and the execution, delivery and performance of this
Agreement by Impsat has been duly authorized by all necessary corporate action
on the part of Impsat. This Agreement has been duly executed and delivered by
Impsat and is the valid and binding obligation of Impsat enforceable in
accordance with its terms.
(c) Non-Contravention. The execution, delivery and performance of this
Agreement by Impsat does not and will not, presently or by the lapse of time,
the giving of notice or otherwise, constitute a violation of any Applicable Laws
or any applicable provision contained in any of its certificate of
incorporation, by-laws or similar organizational document or in any material
agreement, instrument or document to which Impsat is a party or by which Impsat
is bound.
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(d) Impsat License. The Impsat License granted to Vendor pursuant to
Section 7.1(c) and the Impsat IPR licensed hereunder do not infringe upon or
otherwise breach, violate or constitute misappropriation of the rights of any
third party, and no claims have been asserted by any Person against Impsat with
respect to the use of such Impsat IPR which challenge or call into question the
validity or effectiveness of the Impsat License.
ARTICLE XVI.
TERM AND TERMINATION
16.1 Term.
This Agreement shall be effective and be in full force and effect for a
term (the "Term") commencing on the date hereof and ending on the later of (i)
the date of Final Overall Network Acceptance or (ii) the date that all
warranties under Article XII hereof have terminated, unless otherwise extended
by the mutual written consent of the Parties, or unless terminated earlier in
accordance with the terms herein. The Parties' rights and obligations, which, by
their nature would continue beyond the termination of this Agreement, including,
but are not limited to, those contained in Articles II, VII, IX, XIII, XVI,
XVIII and XIX and Sections 17.2, 17.3 and 17.7, shall survive any termination of
this Agreement. Article VI (Spare Parts; Post-Commissioning Support) and Article
XII (Product Warranties) shall survive termination, cancellation or expiration
hereof, if and only if, this Agreement is terminated by Impsat pursuant to
Section 16.2.
16.2 Termination.
Either Impsat or the Vendor shall have the right to terminate this
Agreement (i) in the event of a material breach of the Agreement by the other,
after informal dispute resolution efforts as provided in Section 18.2 shall have
been attempted with respect to such breach and the breach remains uncured for
thirty (30) days after notice thereof to the breaching Party, (ii) without
notice in the Event of Bankruptcy of the other Party, or (iii) as otherwise
provided in this Agreement, including but not limited to Sections 4.8(b), 5.6(e)
and 5.7(c). Any termination shall be without prejudice to the rights and
remedies of the terminating Party as described herein.
16.3 Impsat's Option Upon Termination.
(a) In the event of a termination of this Agreement by Impsat pursuant
to Section 16.2, Impsat shall have the right to elect, by written notice to the
Vendor within thirty (30) days after the date of delivery of the termination
notice, to retain as its own property all or any Products and Civil Work and to
enjoy the Vendor License related to such retained Products and Civil Work, and
return the remaining Items of Product to the Vendor, in which case Impsat shall
pay the allocable balance of the purchase price for the retained Items of
Product and Civil Work, based on the unit prices for such Items of Product and
Civil Work set forth in the Product List and Pricing Schedule; provided,
however, that if the value of the Products and Civil Work already paid for by
Impsat is greater than the value of the Products and Civil Work retained by
Impsat following termination, with such values being based on the unit prices
for such Items of Product and Civil Work set forth in the Product List and
Pricing Schedule, then Impsat shall be entitled to a refund of the difference
within thirty (30)
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days of termination. In addition, Impsat shall have the right
to avail itself of any and all remedies available at law and/or equity.
(b) In the event of a termination of this Agreement by Vendor pursuant
to Section 9.3(e) or 16.2 or automatic termination under Section 9.3(b):
(i) with respect to all Items of Products and all Structures that
already have been installed or completed, and all Services and
Civil Work fully or partially performed by Vendor, Impsat shall
retain or obtain, as the case may be, the ownership of, and title
to, such Items of Products and Structures, and shall enjoy the
Vendor License related to such Items of Products, and shall pay
the Vendor the price of such Items of Products, such Structures,
and such Services and Civil Work related thereto, in each case at
the unit price set forth therefor in the Product List and Pricing
Schedule;
(ii) with respect to all Items of Product that have not yet been
shipped to Impsat, the Vendor shall retain the ownership of, and
title to, such Items of Product and Impsat shall not be obligated
to make any payment to the Vendor relating to such Items of
Product; and
(iii) with respect to all Items of Product that have been shipped to
Impsat but have not yet been installed, Impsat shall retain
ownership of, and title to, such Items of Product and Impsat
shall be obligated to pay Vendor for such Items of Product at the
price of such Items of Product set forth in the Product List and
Pricing Schedule.
(c) Upon (i) the purchase or return of the Items of Products and Civil
Work by Impsat as described above, and (ii) the payment by Impsat or the refund
by Vendor of the applicable amounts as set forth above, then, except for
penalties, late fees and any other charges and liabilities previously incurred
hereunder, including the obligations of the Parties pursuant to Article XIV,
neither Party shall have any further right over or any further liability to the
other Party whatsoever in respect of the transactions contemplated hereby,
except as otherwise provided in the Contract Documents.
(d) Notwithstanding anything else in this Agreement to the contrary,
upon termination of this Agreement pursuant to this Article XVI or Section 9.3,
Impsat shall retain the Vendor License with respect to all design and
engineering work performed by Vendor in connection with this Agreement and paid
for in full by Impsat in accordance with the terms of this Agreement.
(e) Notwithstanding anything else in this Agreement to the contrary,
upon termination of this Agreement pursuant to this Article XVI or Section 9.3,
Impsat shall have the option of having any or all of Vendor's contracts with
Subcontractors, except for contracts with Subcontractors related to Vendor IPR,
assigned to Impsat, provided there is also a delegation of all existing duties
under such contracts to Impsat.
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(f) If this Agreement is terminated by Impsat pursuant to Section 16.2,
Impsat shall receive the entire amount of the Performance Bond than outstanding,
and in addition, Impsat shall have no further obligation to pay Vendor any
amounts owed pursuant to Sections 9.2(a)(iv) and (v) and 9.2(b)(iii) and (iv).
If this Agreement is terminated by Vendor pursuant to Section 16.2, the
Performance Bond shall be returned to Vendor, and in addition, Vendor shall
receive from Impsat all amounts owed pursuant to Sections 9.2(a)(iv) and (v) and
9.2(b)(iii) and (iv).
ARTICLE XVII.
USE OF SUBCONTRACTORS
17.1 Consent Required for Vendor to Subcontract.
The Vendor shall not, without the prior written consent of Impsat,
which consent shall not be unreasonably withheld or delayed, subcontract all or
any portion of its obligations under this Agreement where the value of the
subcontract exceeds [ ] U.S. Dollars (US $[ ]); provided, however, that until
financing is available under the Vendor Financing Agreement, Vendor shall not,
without the prior written consent of Impsat, which consent shall not be
unreasonably withheld or delayed, subcontract all or any portion of its
obligation under this Agreement where the value of the subcontract exceeds [ ]
Dollars (US$[ ]); provided, further, that within thirty (30) days of the date
hereof, Vendor shall provide to Impsat for Impsat's approval a list of all
Subcontractors for Civil Work, and Vendor agrees not to use Subcontractors for
Civil Work who are not contained on such list without Impsat's prior written
consent.
17.2 Use of Subcontractors.
(a) Vendor's Obligations Not Affected. In the event any portion of the
Vendor's obligations are subcontracted, the Vendor shall be solely and
personally responsible, as between Impsat and the Vendor, for the due
performance by, and the liabilities to Impsat of, such authorized Subcontractors
of all the applicable terms and conditions of this Agreement. Regardless of
whether the Vendor obtains approval from Impsat of a Subcontractor or whether
the Vendor uses a Subcontractor recommended by Impsat, such approval, use or
recommendation will in no way increase the Vendor's rights or diminish the
Vendor's liabilities to Impsat with respect to this Agreement, including the
Vendor's liability for delays whether or not caused by a Subcontractor, and
shall not, under any circumstances: (i) give rise to any claim by the Vendor
against Impsat if such Subcontractor breaches its subcontracting agreement with
the Vendor; (ii) create any contractual obligation by Impsat to the
Subcontractor; (iii) give rise to a waiver by Impsat of its rights to reject any
Defects or Deficiencies or Defective Work; or (iv) in any way release the Vendor
from being solely and personally responsible to Impsat for the due performance
by the Vendor, whether directly or through such Subcontractor, of all the
applicable terms and conditions, including the Work, of this Agreement.
(b) Selection of Subcontractors. In selecting Subcontractors as
permitted hereunder in connection with the performance of the Work, the Vendor
shall ensure that all Products and Services provided by any such Subcontractors
meet the Specifications and Standards and the other provisions of the Contract
Documents.
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(c) Review and Approval not Relief of Vendor Liability. Any inspection,
review or approval by Impsat permitted under this Agreement of any portion of
the Work by the Vendor or any Subcontractor shall not relieve the Vendor of any
duties, liabilities or obligations under this Agreement; provided, however, that
any such inspections, reviews or approvals by Impsat not conducted within the
prescribed periods which cause any delays in Vendor meeting its milestones under
the Project Implementation Plan will result in an equitable extension of such
milestone deadlines.
(d) Subcontractor's Use of IPR. All subcontract work that relates to
this Agreement shall be pursuant to written agreements which shall include a
limitation on the use of the Background IPR of Impsat solely for the purpose of
developing the Project and the operation and use of the Network
17.3 Vendor Warranties.
The warranties of the Vendor pursuant to Article XII shall be deemed to
apply to all Work performed by any Subcontractor as though the Vendor had itself
performed such Work. When entering into an agreement with a Subcontractor,
Vendor shall ensure that the benefits of all warranties provided to Vendor by
such Subcontractor pass through to Impsat. Impsat shall be entitled to, but
shall not be obligated to, directly enforce any warranties of any Subcontractor;
provided that no such election by Impsat shall relieve the Vendor from any
obligations or liability with respect to any such warranty.
17.4 Payments to Subcontractors.
The Vendor shall make all payments to all Subcontractors (except in the
case of legitimate disputes between the Vendor and any such Subcontractor
arising out of the agreement between the Vendor and such Subcontractor) in
accordance with the respective agreements between the Vendor and its
Subcontractors such that Subcontractors will not be in a position to enforce
liens and/or other rights against Impsat, the Network or any part thereof.
17.5 Removal of Subcontractor or Subcontractor's Personnel.
Impsat shall have the right at any time to require removal of any
Subcontractor and/or any of a Subcontractor's personnel from Work on the
Subnetwork upon reasonable grounds and reasonable prior written notice to the
Vendor; provided, however, that no such removal will (i) cause the Vendor to
incur additional costs, (ii) cause delays in the Project Implementation Plan, or
(iii) negatively impact the Specifications and Standards or the other provisions
of the Contract Documents. The exercise of such right by Impsat shall have no
effect on the provisions of Sections 17.1 and 17.2.
17.6 Subcontractor Insurance; Compliance with Local Laws.
The Vendor shall require all Subcontractors to obtain, maintain and
keep in full force and effect during the time they are engaged in providing Work
hereunder adequate insurance coverage consistent with Article XI (provided that
the maintenance of any such Subcontractor insurance shall not relieve the Vendor
of its other obligations pursuant to Article XI). The Vendor shall, upon
Impsat's request, provide Impsat with copies of
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certificates of such insurance. In addition, Vendor shall require all
Subcontractors to comply with all Applicable Laws.
17.7 No Effect of Inconsistent Terms in Subcontracts.
The terms of this Agreement shall in all events be binding upon the
Vendor regardless of and without regard to the existence of any inconsistent
terms in any agreement between the Vendor and any Subcontractor whether or not
and without regard to the fact that Impsat may have had notice, directly or
indirectly, of any such inconsistent term.
17.8 Additional Restrictions.
The Work (excluding Work containing Vendor IPR) performed pursuant to
this Agreement by Vendor and its Subcontractors shall be utilized exclusively in
the fulfillment of this Agreement.
ARTICLE XVIII.
GOVERNING LAW; DISPUTE RESOLUTION
18.1 Governing Law.
This Agreement shall be governed by and construed according to the laws
of the State of New York, United States of America, without regard to its
conflicts of law provision. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to the transactions contemplated
hereby. For the avoidance of doubt, it is hereby understood by the Parties that
the performance of the obligations assumed by each Party shall comply with all
Applicable Laws.
18.2 Informal Dispute Resolution.
(a) Prior to the initiation of any arbitration proceeding pursuant to
Section 18.3, but without prejudice to the immediate application of the
provisions of Sections 16.2 and 16.3, in the event any controversy, claim,
dispute, difference or misunderstanding arises out of or relates to this
Agreement, any term or condition hereof, any of the Work to be performed
hereunder or in connection herewith, the Impsat Project Manager and the Vendor
Project Manager shall meet and negotiate in good faith in an attempt to amicably
resolve such controversy, claim, dispute, difference or misunderstanding in
writing.
(b) The Project Managers shall meet for this purpose within ten (10)
Business Days, or such other time period mutually agreed to by the Parties,
after such controversy, claim, dispute, difference or misunderstanding arises.
If the Parties are unable to resolve the controversy, claim, dispute, difference
or misunderstanding through good faith negotiations within such ten (10)
Business Day period (or such other agreed-to time period), each Party shall,
within five (5) Business Days after the expiration of such period, prepare a
written position statement which summarizes the unresolved issues and such
Party's proposed resolution. Such position statement shall be delivered by the
Vendor to Impsat's Chief Technical Officer and by Impsat to the Vendor's
corresponding officer or representative for resolution within (5) Business Days,
or such other time period mutually agreed to by the Parties.
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18.3 Agreement to Resolve Disputes by Arbitration.
(a) Any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach, termination, interpretation, performance or
validity thereof, shall be settled by arbitration, to be initiated by either
Party by notifying the other Party in writing, and conducted in the English
language (provided, however, that documents originally prepared in the Spanish
language may be admitted in evidence without the need for translation) and in
accordance with the International Arbitration Rules of ICC. At the request of
either Party, a stenographic transcript of the testimony and proceedings will be
taken and the arbitrators will base their decision upon the record and briefs
(including, at the option of the Parties, post-hearing briefs) of the Parties.
(b) The arbitration shall be conducted by a panel composed of three (3)
arbitrators, each with at least ten (10) years of experience in the field of
terrestrial communication networks. One arbitrator shall be appointed by the
Vendor, and one arbitrator shall be appointed by Impsat, in each case within
thirty (30) Business Days after the date of delivery of the notice requesting
arbitration by the Party initiating the arbitration to the other Party. The
third arbitrator shall be appointed by the first two arbitrators within fifteen
(15) Business Days after the later of the dates of appointment of the first two
arbitrators. If any Party fails to appoint an arbitrator within the thirty
Business Day period, or if the first two arbitrators fail to agree on the
appointment of a third arbitrator within the fifteen Business Day period, then
the arbitrator to be appointed shall be appointed by the ICC. The third
arbitrator shall not be a citizen or resident of Argentina or Canada but may be
a citizen or resident of the United States of America. Each arbitrator shall be
fluent in English and Spanish.
(c) The arbitration proceeding, including the making of the award,
shall take place in the city of [ ], and the award or the arbitrator shall be
final and binding upon the parties and may be entered in any court of competent
jurisdiction.
(d) All aspects relating to the Parties' agreement to resolve disputes
by arbitration set forth in this Article, including without limitation the
validity and enforceability of such agreement to arbitrate, the conduct of the
arbitration proceeding and the recognition and enforcement of any arbitral award
in the United States of America, shall be governed by the United States Federal
Arbitration Act, Title 9, U.S. Code Sections 1 et seq., as amended from time to
time, to the exclusion of any state or municipal laws. The Parties hereby
consent to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York and any appellate court therefrom for
purposes of the foregoing sentence; provided, however, that if for any reason
said court shall lack subject matter jurisdiction, the Parties hereby consent to
the non-exclusive jurisdiction of the Supreme Court of the State of New York,
County of New York, for such purposes. The Federal Rules of Evidence shall be
used as non-binding guidelines for the admission of evidence, and reasonable
discovery, including depositions, shall be permitted. Discovery and evidentiary
issues shall be decided by the arbitrators.
(e) Unless otherwise specifically provided in this Agreement, during
the pendency of any arbitration proceedings, the Parties agree to continue to
perform their
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obligations hereunder in the same manner as prior to the institution of such
arbitration proceedings.
(f) Notwithstanding anything above to the contrary, during the course
of arbitration proceeding brought under this Section 18.3 , either Party may
seek a court ordered injunction in order to maintain the status quo ante pending
final dispute resolution.
(g) Each Party shall pay for the services and expenses of the
arbitrator appointed by it, its witnesses and attorneys. All other fees and
expenses incurred in connection with the arbitration (including the fees and
expenses of the ICC and the cost of the services and expenses of the arbitrator
appointed by the two arbitrators appointed by the Parties or by the ICC) shall
be paid in equal part by the Parties, unless the award shall specify a different
division of said fees and expenses.
18.4 Arbitration Awards.
Without limiting its power to award monetary damages for damages
sustained or such other relief as a Party may demand in its arbitral pleadings
or as it may see fit, but subject to Section 13.4, the arbitral tribunal may
include one or more of the following elements in any arbitration award:
(i) an order awarding Impsat the right to require the Vendor to
remove from Impsat's premises, in whole or in part and at
Vendor's sole cost and expense, any Products and Structures
that have been delivered or installed, together with a full
refund to Impsat of the purchase price thereof;
(ii) an order directing the Vendor to assign designated
Subcontractor agreements to Impsat without any change in
price or conditions therein or any penalty or payment
therefor, to the fullest extent permitted by such
agreements; and
(iii) an order directing the Vendor to pay to Impsat an amount
equal to the difference between the Aggregate Price and the
total cost incurred by Impsat in completing the construction
and Installation of the Subnetwork by whatever reasonable
means Impsat shall deem expedient.
ARTICLE XIX.
MISCELLANEOUS
19.1 Expenses.
Each Party shall bear its own expenses incurred in connection with the
preparation and negotiation of this Agreement and any other documents required
to effect the transactions contemplated hereby.
19.2 Relationship of the Parties.
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All performance by either Party under this Agreement shall be performed
as an independent vendor or client (as the case may be) and not as an agent of
the other Party, and neither Party shall be, nor represent itself to be, the
employee, agent, representative, partner or joint venturer of the other. Neither
Party shall have the right or authority to incur or assume an obligation on
behalf of or in the name of the other Party or to otherwise act on behalf of the
other. The performing Party shall be responsible for its employees',
Subsidiaries', Affiliates' and third-party compliance with all Applicable Laws
while performing under this Agreement. This Agreement shall not be construed to
create any relationship, contractual or otherwise, between Impsat and any of the
Vendor's Subcontractors.
19.3 Notices.
All notices under this Agreement shall be in writing (except where
otherwise stated herein) and shall be given by overnight courier service, in
each case to the address of the intended recipient as set forth below. A notice
shall be deemed to have been given, if by courier service, on the third (3rd)
Business Day after the date it is dispatched with proof of delivery to such
courier service.
For notices to Impsat:
IMPSAT S.A.
c/o Impsat Corporation
Xxxxxxx Xxxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxx 1107
Attention: Xxxxx Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxx, Esq.
For notice to the Vendor:
Nortel Networks Corporation
c/o Nortel Networks (CALA) Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Vice-President and General Counsel
with a copy to:
Nortel Networks de Argentina S.A.
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Larrea 1079
(1117) Buenos Aires
Argentina
Attention: Xxxx Xxxxxx
Any change to the name and/or address listed above may be made at any
time by giving written notice to the other Party.
19.4 Headings.
The headings given to the Articles, Sections and Exhibits herein are
inserted only for convenience and are in no way to be construed as part of this
Agreement or as a limitation of the scope of the particular Article, Section or
Exhibit to which the title refers.
19.5 Severability.
Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under Applicable Law,
but, if any provision of this Agreement will be held to be prohibited or invalid
in any jurisdiction, the remaining provisions of this Agreement shall remain in
full force and effect and such prohibited or invalid provision shall remain in
effect in any jurisdiction in which it is not prohibited or invalid. In the
event that an invalid or unenforceable provision is an essential and material
element of this Agreement, the Parties shall promptly negotiate a replacement
provision.
19.6 Waiver.
Unless otherwise specifically provided by the terms of this Agreement,
no delay or failure to exercise a right resulting from any breach of this
Agreement or arising under any terms or conditions shall impair such right or
shall be construed to be a waiver thereof, but such right may be exercised from
time to time as may be deemed expedient. If any representation, warranty or
covenant contained in this Agreement is breached by either Party and thereafter
waived by the other Party, such waiver shall be limited to the particular breach
so waived and not be deemed to waive any other breach under this Agreement.
19.7 Entirety of Agreement; No Oral Change.
Except as expressly provided otherwise herein, this Agreement, together
with the Exhibits hereto, which are hereby incorporated herein as an integral
part hereof, constitute the entire agreement between the Parties with respect to
the subject matter hereof, and supersede all proposals, oral or written, all
prior and contemporaneous negotiations and other communications between the
Parties with respect to the subject matter hereof, including but not limited to
the LOI; provided, however, that notwithstanding anything above to the contrary,
this Agreement shall not supersede (i) the Confidentiality Agreement dated April
29, 1998, and amended on January 21, 1999, between Impsat Corp. and Vendor and
(ii) that certain side letter agreement executed concurrently with the execution
of this Agreement between Impsat Corp. and NNC regarding Impsat Corp.'s
commitment to purchase additional Vendor provided Equipment and Services;
provided, further, that all official documentation exchanged between the Parties
pursuant to the Communication Plan included in Exhibit D
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from the time of the execution of the LOI through the date hereof in connection
with the implementing the LOI shall remain in effect, and all rights and
obligations thereunder shall continue in effect. No modifications, alterations
or waivers of any provisions contained herein or in any of the Exhibits hereto
shall be binding on the Parties unless evidenced in writing signed by duly
authorized representatives of both Parties.
19.8 The Parties' Right to Assign.
Except as otherwise provided herein, a Party's rights and obligations
hereunder shall neither be assigned nor delegated without the prior written
consent of the other Parties. If and only if there is no adverse tax effect on
Impsat or its Subsidiaries, Impsat agrees not to withhold its consent for the
substitution of a Subsidiary or Affiliate of NNC in its place as a contracting
party to perform any work required in Impsat's country and to receive any
payments pertaining to such work. Impsat shall have the right to assign all or
part of its rights and delegate all or part of its duties hereunder to any of
its Affiliates and to any purchaser of all or part of the Subnetwork. Any
assignment by Impsat of all or part of its rights under the Vendor License must
comply with the requirements of Section 7.4. No assignment or substitution
pursuant to this Section 19.8 shall relieve the assigning Party of its
obligations under this Agreement. Notwithstanding anything in this Agreement to
the contrary, Impsat may pledge all or any part of its interest in the
Subnetwork, this Agreement and/or the Vendor License as security for loans or
other forms of financing.
19.9 Confidentiality.
(a) The Parties acknowledge that in the course of the RFP process
described in the recitals hereto, and in the course of negotiating and executing
the LOI and this Agreement, each of the Parties has provided to the other
certain information that it considers confidential and/or proprietary, and that
additional such information will be provided to the other during the Term of
this Agreement. The Parties further acknowledge that it is not feasible at this
time to identify each category of information that each Party considers, or may
consider, to be confidential and/or proprietary, and that each Party has certain
legitimate business needs to use the confidential and/or proprietary information
of the other Party in the course of implementing this Agreement, and
implementing and operating the Network and the Project. The Parties therefore
agree to cooperate with each other in all reasonable respects in order to
maintain the confidential and/or proprietary nature of the
confidential/proprietary information provided by the other Party. The Parties
agree to use commercially reasonable business judgment in determining what
information of the other Party is confidential and/or proprietary. The Parties
further agree to do the following with respect to such information:
(i) to use such information only for purposes of (x) fulfilling
such Party's obligations, or enforcing such Party's rights,
under this Agreement; (y) using, operating and maintaining
the Network, including providing service thereon to
customers and engaging contractors to provide goods and/or
services with respect thereto, and (z) developing,
implementing, using, operating and/or maintaining aspects of
the Project other than the Subnetwork;
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(ii) to limit the disclosure of such information to that which is
reasonably necessary to achieve the purposes described in
clause (i) above;
(iii) to obtain prior written confidentiality undertakings from
any contractors whom a Party engages to provide goods and/or
services to such Party and to whom such Party discloses such
information; and
(iv) in cases where it is commercially and legally feasible to do
so, to obtain written confidentiality undertakings from
other Persons and entities to whom a Party discloses such
information, recognizing that it may not be feasible to
obtain such undertakings from Governmental Entities or from
Impsat's customers.
(b) All confidential and/or proprietary information, unless otherwise
specified in writing, shall remain the property of the Party who provided such
information, and such written confidential and/or proprietary information,
including all copies thereof, shall be returned to the Party who provided such
information or destroyed upon termination of this Agreement, except for
confidential and/or proprietary information that is needed by Impsat for the
continued use, operation and maintenance of the Network. Confidential and/or
proprietary information shall not be reproduced except to the extent necessary
to accomplish the purpose and intent of this Agreement, or as otherwise
permitted in writing by the Party who originally provided such confidential
and/or proprietary information.
(c) The foregoing provisions of this Section 19.9 shall not apply to
any confidential and/or proprietary information which (i) becomes publicly
available other than through the disclosing Party; (ii) is required to be
disclosed by a governmental or judicial law, order, rule or regulation, provided
that the disclosing Party has used commercially reasonable efforts to avoid or
limit such disclosure; (iii) is independently developed by the disclosing Party;
(iv) becomes available to the disclosing Party without restriction from a third
party without an obligation to keep confidential such information; or (v)
becomes relevant to the settlement of any dispute or enforcement of either
Party's rights under this Agreement in accordance with the provisions of this
Agreement, in which case appropriate protective measures shall be taken to
preserve the confidentiality of such information as fully as possible within the
confines of such settlement or enforcement process. If any confidential and/or
proprietary information is required by law, regulation or court order to be
disclosed, the disclosing Party shall promptly inform the other Party in writing
of the requirements of such disclosure so that such Party may seek a protective
order or other remedy. In addition, the disclosing Party further agrees that if
the other Party is not successful in precluding the requesting body from
requiring the disclosure of the confidential and/or proprietary information, the
disclosing Party will furnish only that portion of the confidential and/or
proprietary information which the disclosing Party is legally required to
disclose and the disclosing Party will make all reasonable efforts to obtain
reliable assurances that confidential treatment will be accorded the
confidential and/or proprietary information.
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(d) All media releases, public announcements, and public disclosures
relating to this Agreement or the subject matter of this Agreement, including
promotional or marketing material, but not including announcements intended
solely for internal distribution or disclosures to the extent required to meet
legal or regulatory requirements, shall be coordinated with and shall be subject
to approval by both Parties prior to release.
(e) The provisions of this Section 19.9 shall survive for seven (7)
years after the Term of this Agreement has expired.
19.10 Binding Effect.
This Agreement shall bind, and inure to the benefit of, the Parties,
their successors and permitted assigns.
19.11 Counterparts.
This Agreement may be executed by the Parties in any number of separate
original and facsimile counterparts, and all such counterparts taken together
shall be deemed to constitute one and the same instrument, and the Parties agree
to promptly exchange original copies. This Agreement shall be of no force or
effect until executed by all of the Parties.
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IN WITNESS WHEREOF, the Parties have executed and delivered this
Agreement as of the date first set forth above through their respective duly
authorized representatives.
IMPSAT S.A.
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxx
Title: General Manager
NORTEL NETWORKS CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------
Name: Xxxxx X. Xxxx
Title: Senior Advisor, Operations/
Customer Service
NORTEL NETWORKS DE ARGENTINA S.A.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
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