移动通信网络工程分包合同翻译模板( 英文版）

　　SUBCONTRACT AGREEMENT OF MTN TK PROJECT

　　苏丹共和国移动通信网络工程分包合同

　　Table of Contents

　　ARTICLE 1 – DEFINITIONS 定义

　　ARTICLE 2 – GENERAL 一般性规定

　　ARTICLE 3 – PURCHASE ORDERS 购买订单

　　ARTICLE 4 – VARIATION ORDERS 订单的变更

　　ARTICLE 5 – TIME SCHEDULE 日程

　　ARTICLE 6 – PROJECT MANAGEMENT AND SUBCONTRACTOR’S PERSONNEL

　　项目管理及分包商人员

　　ARTICLE 7 – QUALITY ASSURANCE 质量保证

　　ARTICLE 8 – WARRANTIES 承诺

　　ARTICLE 9 – CONTRACT PRICE 合同价格

　　ARTICLE 10 – TAXES AND DUTIES

　　ARTICLE 11 –GUARANTEES 担保

　　ARTICLE 12 –INSURANCE REQUIREMENTS 保险的要求

　　ARTICLE 13 – MISTAKES IN INFORMATION 错误信息的处理

　　ARTICLE 14 – ACCEPTANCE PROCEDURES 验收程序

　　ARTICLE 15 – DELAYS, LIABILITY AND TERMINATION 施工延误、 责任及合同终止

　　ARTICLE 16 – FORCE MAJEURE 不可抗力

　　ARTICLE 17 – INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY

　　知识产权及保密约定

　　ARTICLE 18 – EFFECTIVE DATE OF CONTRACT 合同生效

　　ARTICLE 19 – FINAL PROVISIONS 其他约定

　　SUBCONTRACT

　　This Subcontract is made and entered into on by and between Contractor Telecommunication Solution Co., Ltd (hereinafter referred to as contractor),having its principal office at House NO.217 Block 22 ELTAIF Khartoum.

　　And

　　GAMAL SAIDEWAZIRY an entity existing under the laws of Sudan having its principal office at Khartoum Kalakla-Abu Adam-mayo street Nobatia block(hereinafter referred to as Subcontractor).

　　WHEREAS Contractor and PHASE G (hereinafter referred to as Client) have entered into a supply agreement (hereinafter referred to as Main Agreement) for the supply by Contractor of TK services for the network to be built and operated by the Client in Sudan. WHEREAS Contractor desires to direct the performance of the Subcontracted Works to the Subcontractor and the Subcontractor desires to perform such Subcontracted Works on the terms and conditions laid down below.

　　NOW, THEREFORE THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:

　　ARTICLE 1 – DEFINITIONS

　　Except as otherwise provided, the following words and phrases shall have the meanings as defined below. Word importing the singular only also include the Plural and vice versa where the context so requires.

　　1.1 Final Acceptance Certificate shall mean the document to be issued pursuant to Appendix 5 Acceptance Procedure.

　　1.2 Preliminary Acceptance Certificate shall mean the document to be issued pursuant to Appendix 5 Acceptance Procedure.

　　1.3 Variation Order shall have the meaning set forth in Article 4.

　　1.4 Commissioning shall mean all activities related to the configuration of Equipment and Material to be ready to be connected to other Equipment and Material, includes testing of a piece of Equipment and Material isolated from others.

　　1.5 Preliminary Acceptance shall have the meaning set forth in Appendix 5Acceptance Procedure.

　　1.6 Subcontract shall mean this Subcontract and all its appendices including any Purchase Orders and Variation Orders issued pursuant to this Subcontract as well as any amendments that may subsequently be agreed upon between the Parties.

　　1.7 Day shall mean any calendar day including any Saturday, Sunday, bank- and public holiday.

　　1.8 Equipment shall mean hardware and software (together with the necessary software manuals and other equipment specific documentation) provided by Contractor and to be installed at Site.

　　1.9 Final Acceptance shall have the meaning set forth in Article 14.

　　1.10 Installation shall mean the installation of the Equipment and Material as further described in the respective installation manual.

　　1.11 Integration shall mean the activities necessary for the Equipment and material to be configured and connected to the system.

　　1.12 Material shall mean hardware and software (together with the necessary software manuals and other material specific documentation) provided by the Subcontractor and to be installed at Site including without separate itemization installation materials and consumables that are necessary for installation of Material.

　　1.13 Contractor Information shall mean Contractor’s and/or the Client’s technical, financial and commercial information and data relating to their respective businesses, finances, planning, facilities, products, techniques and processes and shall include, but is not limited to, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans, client names and other technical, financial or commercial information and intellectual properties, whether in writing or other tangible or in oral form.

　　1.14 Party shall mean the Subcontractor and Contractor, respectively.

　　1.15 Permitting shall mean the obtaining of the necessary authorizations from public (national and local) authorities for the deployment of the system (or a part thereof), including but not limited to permits required for Site constructions as further defined in Appendix 3 Scope of Works.

　　1.16 Purchase Order shall have the meaning set forth in Article 3.

　　1.17 Prices shall mean all the unit prices as listed Appendix 1, and any other prices as may be agreed by both Parties in writing as Addendum hereto. The Prices shall be considered as including all items of work and material necessary for the performance of the Subcontract; any item missing in the Prices shall be considered as included in one or more items listed. The Prices shall be firm during the whole contract period, without relating to the variation of prices of raw materials or parts, salaries or wages, the fluctuation of exchange rates or any other factors.

　　1.18 Site shall mean each physical location where Equipment and Material has been or will be installed.

　　1.19 Site Acquisition shall mean all activities related to the rental, purchase or other arrangement providing use of a physical location as a Site as further defined in Appendix 3 Scope of Works.

　　1.20 Site Owner shall mean the person(s) actually or potentially letting (or otherwise making available) the physical space for use as an installation Site for the system.

　　1.21 Site Ready shall mean the completion of Contractor’s responsibilities with respect to the Site as stated in Appendix 3 Scope of Works and verified pursuant to Appendix 5 Acceptance Procedure.

　　1.22 Subcontracted Works shall mean the services and Material itemized in Appendix 3 Scope of Works which shall be performed and delivered by the Subcontractor subject to individual Purchase Orders submitted by Contractor and shall include installation material and consumables that are necessary for installation.

　　1.23 System shall mean the CDMA system to be built and operated by the Client in Sudan

　　1.24 Time for completion shall mean the date or dates (as the case may be) specified in the Purchase Order and/or Variation Order when the Subcontractor has to meet specified target dates for the issuance of the Final Acceptance Certificate of the Subcontracted Works.

　　1.25 Working Day shall mean all Days except any Saturdays, Sundays, bank- and public holidays in the country where the Subcontracted Works shall be performed.

　　1.26 Works Ready shall mean the completion of the Subcontracted Works on an individual Site basis by the Subcontractor as stated in Appendix 5 Acceptance Procedure, to enable the Parties to commence the acceptance procedure described in Article 12 for the respective Site.

　　1.27 Confidential Information shall include Contractor Information and any other information or material marked Confidential, Restricted or with such other restrictive legend; or any other form of information disclosed which may be reasonably construed to be confidential which either Party may disclose to the other Party under this Subcontract.

　　ARTICLE 2 – GENERAL

　　2.1 Subject to individual Purchase Orders submitted by Contractor, the Subcontractor shall, to the extent ordered, perform and deliver (as the case may be) the Subcontracted Works described in Appendix 3 Scope of Works attached hereto. A detailed description of the division of the responsibilities of the Parties in respect of the Subcontracted Works is contained in Appendix 3 Scope of Works attached hereto.

　　All Materials to be provided by the Subcontractor shall meet the specifications set out in Appendix 6 if not otherwise agreed in writing. Contractor may, at its discretion (and in accordance with Article 4 (Variation Orders)), instruct the Subcontractor to purchase such Materials from a particular supplier. The Subcontractor shall refrain from selling Materials purchased from such supplier to third parties provided that such Materials are purchased on terms available to Contractor and subcontractors only. Notwithstanding the aforementioned the Subcontractor shall be solely responsible for the supply of Materials.

　　This Subcontract contains the entire understanding between the parties regarding the Subcontracted Works. All previous correspondence and documents exchanged between the Parties in respect of the Subcontracted Works prior to the signatory date of this Subcontract are superseded by this Subcontract.

　　Both Parties acknowledge that the Subcontracted Works are an integral part of the works being provided by Contractor to the Client under the Main Agreement. Accordingly, the Subcontractor shall take into account the purpose for which Subcontracted Works are intended and dates and other requirements for performance agreed between Contractor and Client.

　　2.2 In addition to this Subcontract document, the following documents are hereby made part of this Subcontract:

　　APPENDIX 1 PRICING BOQ

　　APPENDIX 2 PAYMENT TERMS

　　APPENDIX 3 SCOPE OF WORKS

　　APPENDIX 4 PO&VO TEMPLATE

　　APPENDIX 5.1 COMPLETION REPORT TEMPLATE

　　APPENDIX 5.2 KICK OFF REPORT TEMPLATE

　　APPENDIX 6 QUALITY

　　2.3 In case of any discrepancies, the priority of the documents shall be in accordance with the following sequence:

　　(a) Appendices to the Subcontract. Each Appendix shall prevail over the documents referenced in the said appendix,

　　(b) the text of this Subcontract,

　　(c) any other documents forming part of the Subcontract.

　　Later made addenda and amendments alter the contents of this Subcontract only to the extent expressly agreed upon between the Parties; all other conditions shall always remain unchanged.

　　2.4 The Subcontractor shall not use subcontractors(except Sudan subsidiary) in the performance of the Subcontracted Works without the prior written consent of Contractor. In the event that Contractor gives consent, the Subcontractor shall, nevertheless, remain fully responsible for the proper fulfillment of all the obligations of the Subcontractors as set forth in this Subcontract.

　　2.5 Without prejudice to Article 4 (Variation Orders), additions, deletions and other changes to the Subcontracted Works and this Subcontract require a written amendment of this Subcontract. All such Subcontract amendments, which will be numbered consecutively, shall be duly signed by authorized representatives of both Parties prior to effecting any of the changes therein contained.

　　2.6 The Subcontractor shall, at its cost, obtain all work permits necessary for the performance of the Subcontracted Works and in order to comply with local laws, regulations and practices. However, where the Subcontractor, in addition to the aforementioned, is required to execute Permitting on behalf of either Contractor or the Client, then such Permitting shall be defined in Appendix 3 Scope of Works.

　　2.7 The Subcontractor shall carry out the Subcontracted Works with strict regard to safety and health and shall always comply with the following requirements and regulations in force from time to time.

　　(a) Health and safety regulations;

　　(b) Regulations regarding hazardous substances, radio transmitting Equipment and Material,

　　(c) Any other Site specific safety regulations;

　　(d) Building regulations;

　　(e) Other statutory regulations; and

　　(f) Any Client and/or Contractor requirements pertaining to a particular Site.

　　The Subcontractor shall have all necessary health and safety certificates as required by law or any other applicable regulations or as reasonably required by Contractor. Copies of said certificates shall, promptly upon request, be forwarded to Contractor.

　　2.8 The Subcontractor shall at its cost train its employees and subcontractors with regard to the matters set forth in Article 2.6 above so as to ensure compliance with the said stipulations.

　　2.9 The Subcontractor shall, when performing the Subcontracted Works, provide the tools and equipments necessary to perform the Subcontracted Works at its own cost. In the event that the Parties have agreed that Contractor shall provide the Subcontractor with any tools or other items (for example Tower template) on a temporary basis, then such tools shall be recorded in Appendix 3 Scope of Works or in the appropriate Purchase Order. If no new site needed to be built within 5 days, the Subcontractor shall return the tools to Contractor’s warehouse. Otherwise, the Subcontractor shall bring the tools to the site which is waiting for construction. The Subcontractor shall bear all risk of loss or damage to the tools from the date of receipt of the tools until the same has been returned to Contractor. Any costs arising from the use of said tools shall be paid by the Subcontractor unless specifically agreed by both Parties to be the responsibility of Contractor.

　　2.10 The Subcontractor shall be responsible for any and all levies, duties, taxes and social security and other payments and obligations that are imposed by any government or other authorized agency on account of the performance of the Subcontracted Works and with respect to any taxable income of the Subcontractor or its employees.

　　2.11 The Subcontractor has no authority to bind Contractor to any other agreement or obligation not been stated in this contract.

　　2.12 The Subcontractor and Contractor are independent contractors. All personnel furnished hereunder to provide Subcontracted Works are employees of Subcontractor, except as otherwise agreed by the Parties, and are not Contractor’s employees or agents. Notwithstanding anything to the contrary herein the Subcontractor shall have exclusive control over its personnel, its labor and employee relationships and its policies related to wages, hours, working conditions and other employment conditions. Subcontractor has the exclusive right to hire, transfer, suspend, lay off, recall, promote and discipline its personnel.

　　ARTICLE 3 – PURCHASE ORDERS

　　3.1 Contractor will from time to time, in accordance with Appendix 4 Purchase Order template submit Purchase Orders on Site basis or as otherwise agreed by both Parties to the Subcontractor for the supply of the Subcontracted Works in order to meet the actual needs of Contractor. However, Contractor shall be under no obligation to submit Purchase Orders to the Subcontractor. It is recognized by the Subcontractor that the ordering of the Subcontracted Works from the Subcontractor is always subject to the same being competitive in terms of pricing, timing, quality and other aspects of performance. Otherwise, Contractor will cancel Subcontractor’s share in this project at Contractor’s own discretion according to Subcontractor’s poor performance.

　　3.2 The Subcontractor shall only perform such Subcontracted Works that have been specified in a Purchase Order. No other Subcontracted Works shall be performed by the Subcontractor without a written requirement of Contractor and Contractor will not compensate the Subcontractor for the performance of any such Subcontracted Works or bear any cost or expense, whether direct or indirect, that may accrue as a consequence thereof.

　　3.3 The Subcontractor shall not make any changes or otherwise vary or alter any part of the Subcontracted Works or any of the Material that is delivered as part thereof or which is subject thereto.

　　3.4 The Subcontractor has no right to reject any Purchase Order issued by Contractor under this Subcontract at a reasonable basis.(Consider putting it this way: The Subcontractor will accept any and all Purchase Orders issued by Contractor under this Subcontract which is reasonable.)This clause shall not limit the ability of the Parties to suspend the works or otherwise delay or cancel the works in the case of events under Article 16 Force Majeure.

　　3.5 If Subcontractor refuses to accept POs issued by Contractor at reasonable basis, then Contractor may, at its option and in addition to its other rights under this Subcontract, take action to have the POs performed by others and the cost so arising shall be to the account of the Subcontractor who refused to accept POs, which amount may be deducted from any sums payable by Contractor to the Subcontractor.

　　ARTICLE 4 – VARIATION ORDERS

　　4.1 The Subcontractor acknowledges that Contractor and/or the Client may wish to effect changes to Contractor’s undertakings under the Main Agreement and that changes to the Subcontracted Works may be called for as a result of such change. Consequently Contractor may by submitting a Variation Order to the Subcontractor instruct the Subcontractor to alter, amend, omit, add or to otherwise vary any part of the Subcontracted Works that have been ordered by Contractor.

　　4.2 Contractor shall prior to the submission of a Variation Order under Article 4.1 notify the Subcontractor of the nature and content of the changes that Contractor plans to implement. The Subcontractor shall as soon as possible after having received such a notice, and in any event within Three (3) Working Days, submit to Contractor:

　　(a) A description of the work, if any, that needs to be performed and Materials that need to be delivered in addition to the Subcontracted Works that have been ordered under the relevant Purchase Order and a program for its execution;

　　(b) the Subcontractor’s proposals for any necessary modifications to the Time for Completion or to any of the Subcontractor’s obligations under the Subcontract; and

　　(c) The Subcontractor’s proposal for any adjustment to the agreed value of the relevant Purchase Order and/or the amount payable (if any) under the Variation Order.

　　4.3 Contractor shall upon the receipt of the Subcontractor’s submission under Article 4.2 decide whether or not the change shall be carried out. If Contractor decides that the changes shall be carried out, Contractor shall submit a Variation Order to the Subcontractor in accordance with the submission of the Subcontractor, as possibly modified by agreement between the Parties. The Subcontractor shall upon the receipt of the Variation Order forthwith proceed to carry out the change.

　　4.4 In the event that the time available prior to the implementation of the Subcontracted Works that are subject to a Variation Order does not permit the Parties to agree on the changes to the price that may be called for as a consequence of the changes, the Subcontractor shall, nevertheless, carry out the Subcontracted Works as changed pursuant to Variation Order and the Parties shall work in good faith to agree upon the prices and terms as soon as possible.

　　4.5 Notwithstanding anything contained in this Subcontract to the contrary, Contractor may, at its sole discretion but subject to a written notice given no later than three (3) Days prior to the relevant Site Ready date, (i) postpone the performance of the relevant Subcontracted Works to take place within the following three (3) months from the Time for Completion; and/or (ii) change the location of the Site; and/or (iii) change the installation configuration of a Site.

　　The Variation Order procedure set forth above shall not be applied to this Article 4.5, subject, however, if Contractor compensating the Subcontractor for reasonable additional direct costs that may accrue to the Subcontractor as a consequence of the postponement and/or change.

　　ARTICLE 5 – TIME SCHEDULE

　　5.1 The Subcontractor should start mobilization and site preparation immediately upon receiving the formal confirmation from Contractor that the Subcontractor is awarded the Subcontracted Works.

　　5.2 The time schedule and the Time for Completion of the Subcontracted Works in respect of each Site shall be specified in the Purchase Orders.

　　5.3 A sample site should be finished first. After the Client/Contractor checked and accepted this sample sites, the Subcontractor can continue the construction for other sites.

　　ARTICLE 6 – PROJECT MANAGEMENT AND SUBCONTRACTOR’S PERSONNEL

　　6.1 There shall at all times during the performance of this Subcontract be a responsible Project Manager or his authorized deputy present at the designated project office of the Subcontractor, authorized to receive all notices that may be given under this Subcontract and to take all day-to-day decisions required for the implementation of the Subcontracted Works.

　　6.2 The Subcontractor shall, as agreed between the Parties from time to time, provide information and progress reports to Contractor. The Subcontractor shall attend progress meetings whenever requested by Contractor.

　　6.3 The Subcontractor warrants that he has at his disposal all the personnel and other resources necessary, which must include, without limitation, all necessary professional qualifications and shall at all times behave in a professional manner whether at Site or when in contact with the Client or otherwise, for the fulfillment of the Subcontracted Works. During progress of the Subcontracted Works, the Subcontractor shall take into account and shall instruct his staff accordingly that all works shall be executed efficiently and in a quiet and tidy manner. Disturbance to Site Owners and other in the vicinity of the Sites shall be kept to a minimum.

　　6.4 The Subcontractor shall at all times keep an up to date list of people involved in the performance of the Subcontracted Works. Such list shall be provided to Contractor upon signing of the Subcontract and whenever any changes in the Subcontractor’s organization occur. The Subcontractor guarantees that said persons shall continue their involvement in the provision of the Subcontracted Works until all such works have been completed, except in the case when such a person is found to be incompetent or otherwise unsuitable for his duties, the Subcontractor shall inform Contractor immediately and provide removal and replacement suggestions for Contractor’s approval. Contractor may require from the Subcontractor the immediate removal of any person employed by the Subcontractor who fails to conduct him/herself in an appropriate manner or is incompetent or negligent in the performance of his duties, or whose continued presence on the project is judged by Contractor to be detrimental to future progress of the Subcontracted Works. Such person shall not be employed again in the execution of this Subcontract except with the prior written consent of Contractor. The Subcontractor shall immediately replace such removed person with a person with the necessary qualifications. All costs and expenses incurred to Contractor and the Subcontractor in connection with said removal and replacement shall be borne by the Subcontractor.

　　ARTICLE 7 – QUALITY ASSURANCE

　　7.1 The Subcontractor is responsible for the quality of work which is carried out under this Subcontract, irrespective of whether such work is carried out by the Subcontractor itself or by any of its subcontractors. For this purpose the Subcontractor shall constantly monitor the quality of the Subcontracted Work. Furthermore, the Subcontractor is responsible for the quality of all Materials or tools provided or used by the Subcontractor. Documentation of quality records is an explicit part of this Subcontract, and must strictly comply with the relevant laws, regulation, standards and requirements as well as Contractor’ s instructions. The Subcontractor’s obligations with regard to quality are further described in Appendix 7 Quality.

　　7.2 The Subcontractor shall maintain a quality management system, which complies with the standard ISO 9001/2, as applicable. Registration by an independent certification authority is currently not required; however, this may be a requirement in the future by Contractor, in which case evidence of such certification must then be provide with in one year after the written request of Contractor.

　　7.3 Contractor and/or the Client or their representatives shall have the right at all times to inspect the Subcontracted Works at Sites and reject any part thereof that does not comply with the terms of this Subcontract. In case of rejection, the Subcontractor shall immediately rectify such part thereof that is non-compliant. Contractor will record the results of such visits to continuously improve the quality of the Subcontracted Works. On request the Subcontractor will be informed about the results of these performance evaluations. Any inspection, checking, approval or acceptance given on behalf of Contractor and/or the Client shall not relieve the Subcontractor from any obligation under the Subcontract.

　　7.4 The Subcontractor shall disclose the name and necessary information of his suppliers, subcontractors and partners to Contractor if this, in Contractor’s view has any relevance on any part of this Subcontract. Agreements with such suppliers, subcontractors or partners must contain a requirement, which enables the quality assurance of Contractor to carry out quality audits on such supplier, subcontractor or partner premises.

　　7.5 Quality checks and tests of installed facilities shall be performed by the Subcontractor in accordance with the requirements of Contractor.

　　7.6 The Subcontractor must nominate a person and his/her function in his organization who is to receive controlled copies of the Contractor documents relevant for this Subcontract. These controlled copies are subject to Contractor’s document control service and are constantly updated so that the Subcontractor always has information, which is identical to that which is available within Contractor. Contractor is the owner of this documentation; the documentation must be handled confidentially by the Parties and no information from the documentation may be made accessible in any form to third parties without the written permission of Contractor. The Subcontractor must introduce and maintain an effective method of managing these documents and the contents of these documents so that the applicable versions of the relevant document are available wherever they are required, and that outdated documents are immediately removed from wherever they are used.

　　ARTICLE 8 – WARRANTIES

　　8.1 The Subcontractor warrants that:

　　(a) The Subcontracted Works shall be performed with due care and skill and in accordance with the Purchase Order, this Subcontract and Contractor’s instructions, procedures, processes and documentation listed in Appendix 6 Technical Specifications and will be free from defects in engineering, workmanship and installation.

　　(b) All material supplied as part of the Subcontracted Works shall:

　　(i) be of good and merchantable quality and fit for use in the System for its intended purpose;

　　(ii) be new and not previously used; and

　　(iii) be free from defects in engineering, workmanship and installation.

　　(c) The Subcontractor must send the concrete swatch to have the cube crushing strength test in lab when 28 day after concrete depositing. The Subcontractor must warrants that the test results meet the standard, and submit the conformity certificate of cube crushing strength for concrete specimens to Contractor.

　　8.2 The warranty period is Twelve (12) months from the issuance of the Preliminary Acceptance Certificate for the respective Site or in respect of replaced or repaired parts six (6) months from such repair or replacement, which period, however, shall not expire prior to the expiry of the original warranty period. If Contractor during the warranty period notifies the Subcontractor of any failure of the Subcontracted Works to comply with any of the warranties under Article 8.1, then the Subcontractor shall at its own cost promptly and in any event within three (3) Days or agreed day(s) by Contractor of such notification correct all such failures. In the event that Subcontractor does not comply with his obligations to correct such failures within the specified time scale, then Contractor may, at its option and in addition to its other rights under this Subcontract, take action to have the failures corrected by others and the cost so arising shall be to the account of the Subcontractor, which amount may be deducted from any sums payable by Contractor to the Subcontractors.

　　8.3 The Subcontractor warrants that any and all spare parts and complete or part assemblies, test instrument and support and maintenance related to Material shall continue to be available for purchase by Contractor or the Client in any quantity at reasonable prices and terms for a period of not less than 1- years from the date of issue of a Purchase Order. In any event such option may be exercised by Contractor from time to time on terms no less favourable than the terms and conditions contained herein.

　　8.4 If the Material is obtained from third parties by the Subcontractor, then the Subcontractor shall ensure that the requirements stated in Article 8.1 shall be incorporated into the contract between the Subcontractor and such third party. However, the Subcontractor shall be responsible for any and all works directed to or performed by, or Material provided by such third parties.

　　ARTICLE 9 – CONTRACT PRICE

　　9.1 This Subcontract is a unit price contract. The unit price for the Subcontracted Works is defined in Annex 1 PRICING BOQ. And the actual or final contract amount shall be ascertained or calculated with the unit price in Annex 1 PRICING BOQ and the quantities of the works actually done confirmed by both Parties.

　　9.2 The Subcontractor acknowledges that all direct and incidental costs and expenses by virtue of provision of the Subcontracted Works including but not limited to hardware and software cost, engineering services, all personnel costs whether direct or indirect, overheads, project supervision, hand tools, minor installation materials fixings, removal of waste, inherent expenditure relating to the applicable trade term as well as Subcontractor’ s reasonable profits have already been covered by the Subcontract price.

　　9.3 In the event that Contractor's personnel visit a site acting on information from the Subcontractor such as a Works Ready request and the Subcontracted Works are not compliant with the information from the Subcontractor, the Subcontractor shall pay Contractor travel expense for each such repeat visit on a reasonable basis. If the Subcontractor advises Contractor that certain deficiencies exist and if Contractor still decides to visit, then such charge will not be made by Contractor unless undeclared deficiencies are discovered by Contractor during said visit. The Subcontractor warrants that the prices given to Contractor shall not exceed the prices charged to other clients of the Subcontractor for the performance of activities identical or similar to the Subcontracted Works and similar situation in Sudan.

　　9.4 The payment terms for this Subcontract is defined in Appendix 2-Payment Terms.

　　ARTICLE 10 – TAXES AND DUTIES

　　10.2 The subcontractor shall pay for any tax, levy and duty including but not limited to their own income tax, withholding tax, sales tax and service tax imposed on this Subcontract and Purchase Orders relating to the Subcontracted Works and in the country of origin of the Materials or service.

　　ARTICLE 11 –GUARANTEES

　　The Subcontractor shall provide the following guarantees in favor of Contractor issued by a first class bank acceptable to Contractor at the time and in the amount specified below. All the Guarantees or Mortgage Check shall be issued by telex and provided in the same currencies in which the payments are made to the Subcontractor.

　　11.1 The Subcontractor shall within thirty (30) Days upon the signature of this Subcontract by both Parties provide Contractor an irrevocable, unconditional, on-demand Advance Payment Mortgage Check as security against any breach, default, non-performance, mal-performance or non-observance of the provisions of this Subcontract by the Subcontractor and at the amount of 30% of the total PO value of the Subcontracted Works. The Advance Payment Mortgage Check shall at least remain valid for 6 months after sign this Subcontract Agreement. If the Subcontractor fail to provide the Advanced Payment Mortgage Check as requested, the Subcontractor will not get the advance payment.

　　11.2 The Subcontractor shall within thirty (30) Days upon the signature of this Subcontract by both Parties provide Contractor an irrevocable, unconditional, on-demand Performance Bond as security against any breach, default, non-performance, mal-performance or non-observance of the provisions of this Subcontract by the Subcontractor and at the amount of 15% of the total PO value of the Subcontracted Works. The Performance Bond shall at least remain valid for twelve (12) months after signing the Subcontract Agreement.

　　If the Subcontractor fails to provide the performance Bond as requested, Contractor has the right to withhold 15% of actual subcontract amount from the payment when the Subcontractor applies for the last payment until the Subcontractor provide the Warranty bond or the warranty period is expired.

　　11.3 Obligation to provide the guarantees.- The Subcontractor has the obligation to keep the guarantees granted effective. The renewal shall be made at least fifteen (15) days before their due date. In case the Subcontractor fails to do so, Contractor shall proceed to terminate the Subcontract with no further notice to the Subcontractor, and. In such a case the Subcontractor shall not have the right to make any claims.

　　ARTICLE 12 – INSURANCE REQUIREMENTS

　　To avoid any possible losses of Contractor, the Subcontractor shall provide the following insurance policies during the execution of the Subcontract.

　　12.1 All Risks Insurance of Transportation made by subcontractor.

　　Covering loss or damage occurred in transportation of subcontractor’s material to the warehouse.

　　12.2 All Risks Insurance of Installation Construction/Erection All Risks

　　Covering physical loss or damage to the Subcontracted Works or other works/properties of the Client, Contractor or any other party at the Site as a result of any action or inaction by the subcontractor in performance of the subcontracted works, occurring upon commencement of works related to the site until PAC, with an extended maintenance coverage for the Subcontractor’s liability in respect of any loss or damage occurring during the warranty period while the Subcontractor is on the Site for the purpose of performing its obligations during the warranty period.

　　The Subcontractor shall purchase and maintain necessary insurances and shall protect the Subcontractor from all claims from Contractor or third party that may arise out of the Subcontractor’s performance and delivery of Subcontracted Works.

　　ARTICLE 13 – MISTAKES IN INFORMATION

　　13.1 The Subcontractor shall at its expense immediately correct all discrepancies, errors or omissions in drawings and other documentation provided by the Subcontractor to Contractor hereunder. Such correction shall be without prejudice to any other rights Contractor may have as a consequence of such discrepancies, errors and omissions by law or under this Subcontract.

　　13.2 All Contractor information delivered hereunder shall be checked by the Subcontractor and any errors shall be notified to Contractor immediately.

　　13.3 In the event an error is subsequently discovered in any information provided by one Party to the other, the responsible Party shall indemnify the other Party for any direct costs incurred.

　　13.4 Arithmetical errors will be rectified on the following basis: If there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity, the unit price shall prevail and the total price shall be corrected.

　　ARTICLE 14 – ACCEPTANCE PROCEDURES

　　14.1 Contractor’s acceptance of and payment for the Subcontracted Works shall be subject to acceptance procedures as set forth in Appendix 5 Acceptance Procedure.

　　14.2 After Preliminary Acceptance, the Subcontractor shall cooperate with Contractor in finishing the whole project, such cooperate shall be specified in the Scope of Work.

　　14.3 If problems that the Subcontractor is able to solve but temporarily fails to solve due to the limitation of objective conditions are left at the time of PAT, the Subcontractor shall be responsible for solving them before the FAT according to the requirements of the Client or Contractor unless otherwise agreed by the Client. In such a case, the Subcontractor shall submit the Punch List in written as project data to the Representative of Contractor for record. Contractor shall have right to supervise the Subcontractor in handling such problems.

　　14.4 The date of the issuance of the Final Acceptance Certificate for the respective Site shall constitute the commencement of the warranty period.

　　ARTICLE 15 – DELAYS, LIABILITY AND TERMINATION

　　15.1 The time for completion of the Subcontracted Works is of the essence of this Subcontract. The performance of the Subcontractor should be at least equal to or better than the following requirement in the table. Otherwise Contractor might have right to ask the Subcontractor pay liquidated damages to Contractor as follows at Contractor’s discretion:

　　S.N. Task Maximum Time to Finish (count from PO date) Liquidated Damages For Delay/Per Day

　　1 Tower lower than 50m(including 50m) 3 Days one point five percent (1.5%) of the total value of PO

　　2 Tower higher than 50m and lower than 70m(including 70m) 6 Days one point five percent (1.5%) of the total value of PO

　　3 Tower higher than 70m 9 Days one point five percent (1.5%) of the total value of PO

　　15.1 The reduction shall be completed at the actual date of completion; this total reduction shall in no case exceed 10% of the subcontract price. Once the maximum is reached, Contractor is entitled to forthwith terminate the subcontract.

　　15.2 The form of payment for liquidated damages shall be by T/T or Check, without prejudice to any other rights and remedies available to Contractor. If the Subcontractor fails to pay in time, Contractor shall be entitled to claim the corresponding amount from the Performance Bond of the Subcontractor or deduct directly from due payment to the Subcontractor.

　　15.3 In the event that the delay attributable to the Subcontractor continues for a period exceeding 30 (thirty) Days, Contractor shall be entitled to cancel the performance of the Subcontracted Works so delayed and have such works performed by itself or by a third party at the Subcontractor’s expense.

　　15.4 Each Party hereto shall hold harmless and indemnify the other Party for any and all liability arising from accident or injury to any person or property of any third party occurring in connection with the errors, omissions and other actions of the first mentioned Party or its employees, servants and agents and those of its subcontractors engaged in the activities connected with this Subcontract.

　　15.5 Without prejudice to Article 15.3 above in the event that a Party hereto is in default of a material obligation under this Subcontract and fails to remedy such default within 30 (thirty) Days from the non-defaulting Party’s written notice drawing the attention of the defaulting Party to the default and requiring the same to be remedied, then the non-defaulting Party shall have the right to terminate this Subcontract forthwith. In the event of bankruptcy, receivership or comparable procedure under applicable Bankruptcy Ordinance of a Party hereto or in case the default is not capable of being remedied, then the non-defaulting Party may terminate this Subcontract forthwith. In the event of a termination, the defaulting Party shall indemnify the non-defaulting Party for the damages suffered as a result of such termination.

　　15.6 Contractor shall have the privilege to terminate any Purchase Order forthwith in whole or in part for its convenience by serving notice of termination upon the Subcontractor, whereupon the Subcontractor shall forthwith cease all relevant work under such Purchase Order or part thereof, as applicable.

　　15.7 If at any time a competent governmental authority revokes or suspends the Client’s license to construct or operate the System, or if the Client for any other reason issues a written notice to Contractor to stop work for a limited period of time for reasons not attributable to Contractor, then Contractor may request that the Subcontractor shall halt all Subcontracted Works that are in progress. At such time as the impediment is removed, the Parties shall in good faith negotiate a new time schedule for the performance of the Subcontracted Works in question.

　　15.8 The Subcontractor shall not be liable for delays that are solely attributable to Contractor. When the Subcontractor encounters a delay, which in his opinion, is attributable to Contractor, he shall inform Contractor accordingly within one Working Day and shall also advise Contractor within the same time limit of the effects of such delay to the time schedule of the Subcontracted Works relating to the Sites covered by such delay. If the Parties agree that the delay is solely attributable to Contractor, the Subcontractor shall be entitled to a corresponding extension with respect to the performance of the Subcontracted Works.

　　15.9 Contractor shall not be liable for delays that are solely attributable to the Client. In such a case the Subcontractor shall be and only be entitled to an extension of time for substantial completion of the works or any part thereof providing that the Subcontractor submit to Contractor a detailed particulars in justification of the period of extension as soon as it becomes apparent and not later than 7 (seven) days after the cause of any such delay has arisen.

　　ARTICLE 16 – FORCE MAJEURE

　　16.1 Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure (as hereinafter defined)

　　16.2 Events of Force Majeure are events not caused by the Party delayed or prevented from performance and beyond the Party’s control which occur after the date of signing of this Subcontract and which were not reasonably foreseeable at the time of signing of this Subcontract and which effects are not capable of being overcome without unreasonable expense to and/or loss of time of the Party concerned and which are uncontrollable and insurmountable to the Party affected and which render the further performance of the Subcontract impossible or delay such performance.

　　16.3 Each party shall inform the other Party of the occurrence of any event of Force Majeure, its expected duration and cessation, without delay.

　　16.4 In the event that the performance of any Subcontracted Works becomes substantially suspended as the result of an event of Force Majeure for a continuous period exceeding two (2) months, then either Party has the right to cancel the Subcontract in respect of the unperformed part of the Subcontract.

　　16.5 Without prejudice to the generality of the foregoing provisions, the following events shall be recognized as events of Force Majeure on condition that they meet the requirements specified in Article 16.2 above:

　　Acts of God, war, riots, civil unrest, industry-wide strikes, industry-wide lockouts and other general labor disputes, acts of government, natural disasters, breakdown or general unavailability of transport facilities, accidents, fire, explosions, and general shortages of energy, materials and components.

　　ARTICLE 17 – INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY

　　17.1 The Subcontractor acknowledges and accepts that all Contractor Information that is provided to the Subcontractor under or in connection with this Subcontract and all patents, copyrights, design rights, trade secrets and other proprietary rights as well as know-how in or related to the Contractor Information is and shall remain the exclusive property of Contractor and its licensors, whether or not specifically recognized or perfected under applicable law. Contractor (and its licensors) will own all rights in any copy, translation, modification, adaptation or derivation of the Contractor Information, including any improvement or development thereof.

　　17.2 The Subcontractor shall be deemed to have a personal, non-exclusive, non-transferable, royalty-free license to the extent necessary to use the Contractor Information for the performance of the Subcontracted Works under this Subcontract. Unauthorized copying of Contractor Information shall be strictly prohibited.

　　17.3 The Subcontractor’s right to use the Contractor Information will terminate automatically and with immediate effect upon the expiry or termination of this Subcontract. The Subcontractor shall upon the expiry or termination of this Subcontract (i) make no further use of the Contractor Information; (ii) promptly return to Contractor all Contractor Information and any and all copies thereof; and (iii) submit to Contractor a properly signed and executed written document stating that all Contractor Information that is in writing or in any other tangible form that has been disclosed to the Subcontractor by Contractor, as well as any and all copies thereof, have been returned to Contractor.

　　17.4 The Subcontractor shall be liable to and undertakes to indemnify and compensate Contractor for any cost, loss or damage, whether direct or indirect, and including, without limitation, any loss of revenue or loss of income, arising out of the use of the Contractor Information by the Subcontractor for any other purposes than the carrying out of the Subcontracted Works provided for in this Subcontract.

　　17.5 Each Party (Receiving Party for the purposes of this Article 15) shall keep as strictly confidential and not disclose to third parties nor use for any purpose other than for the proper fulfillment of the purpose of this Subcontract any technical or commercial information or information regarding the Client received from the other Party (Disclosing Party) or from the Client in whatever form under or in connection with this Subcontract without the prior written permission of the Disclosing Party except information which

　　(a) was in the possession of the Receiving Party prior to disclosure hereunder; or

　　(b) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or

　　(c) was disclosed by a third party without breach of any obligation of confidentiality owed to the Disclosing Party; or

　　(d) was independently developed by personnel of the Receiving Party having no access to the information.

　　Notwithstanding the aforesaid, Contractor shall have the right to disclose and submit to the Client such material as is necessary for the performance of Contractor’s undertakings under the Main Agreement.

　　17.6 Without limiting the generality of Article 17.5, the Subcontractor shall take all precautions necessary to safeguard the confidentiality of the Contractor Information, including (i) those taken by the Subcontractor to protect its own confidential information; and (ii) those, which Contractor or its licensors may request from time to time. The Subcontractor will not allow the removal or defacement of any confidentiality or proprietary notice placed on items of the Contractor Information.

　　Furthermore, the Subcontractor will not permit any person to use the Contractor Information. The Subcontractor will not disclose, in whole or in part, any Contractor Information to any person, except to the extent required for those of its employees that are involved in the performance of the Subcontracted Works under this Subcontract. Before disclosing any of the Contractor Information to such of its employees, the Subcontractor shall require that they expressly (i) recognize Contractor’s and its licensors’ confidential and proprietary rights in the Contractor Information; and (ii) agree to comply with the use and non-disclosure restrictions applicable to the Contractor information under this Subcontract.

　　ARTICLE 18 – EFFECTIVE DATE OF CONTRACT

　　18.1 This Subcontract becomes effective upon signing by the duly authorized representatives of both Parties.

　　18.2 This Subcontract shall remain valid for a period of 2 (two) years as of the effective date defined in Article 18.1 and expires automatically upon the expiry of the said time period, unless otherwise agreed in writing between the Parties prior thereto. The expiry of this Subcontract shall not affect any accrued rights and obligations of the Parties, including, without limitation, the obligation of the Subcontractor to complete any outstanding Subcontracted Works that have been ordered prior to the expiry of this Subcontract.

　　ARTICLE 19 – FINAL PROVISIONS

　　19.1 Any dispute arising out of or in connection with this Subcontract, or the breach, termination or invalidity thereof, shall be resolved by arbitration in Hong Kong and finally decided by three(3) arbitrators appointed in accordance with the rules in Hong Kong. The proceedings shall be held in English Language. The award shall be final and binding on the parties.

　　19.2 This Contract and Annexes and execution thereof shall be governed by the following applicable substantive law:

　　A. INCOTERMS 2000.

　　B. The United Nation Convention on Contracts for the International Sales of Goods (Vienna Convention of 1980, hereinafter referred to as CISG); and

　　C. To the extent that such questions are not covered by CISG, by reference to the law of the country where the project this contract concerned carried.

　　19.3 No failure or delay of either Party in exercising its rights hereunder (including but not limited to the right to require performance of any provision of this Subcontract) shall be deemed to be a waiver of such rights unless expressly made in writing by the Party waiving its rights.

　　19.4 Any notice given by one party to the other shall be deemed properly given if specifically acknowledged by the receiving Party in writing or when delivered to the recipient by registered mail or by telefax to the representative of both parties.

　　a) if to the Subcontractor,

　　19.5 Neither Party shall assign or transfer to any third party, without the prior written consent of the other Party, this Subcontract or any of its share of interest therein. Such consent shall not be unreasonably withheld in case of an assignment to an affiliate of the assigning Party, on condition that the assigning Party shall remain fully responsible towards the other Party for the proper fulfillment of this Subcontract.

　　19.6 It is of the essence of this Subcontract that all communication with the Client is undertaken through Contractor. The Subcontractor undertakes not to communicate directly with the Client regarding the Subcontracted Works or any other matters that fall within the scope of to this Subcontract without Contractor’s prior consent.

　　19.7 Unless otherwise specified in the Subcontract, all oral and written communication between the Parties in connection with this Subcontract and provision of the Subcontracted Works by the Subcontractor shall be in the English Language.

　　19.8 The provisions of Articles 2.12, 8, 15.5, 17, 19.1, 19.5, 19.6 and 19.9 shall remain in force notwithstanding termination, cancellation or expiry of the Subcontract.

　　19.9 Should any provision of this Subcontract be partially or totally invalid, the balance of the provisions shall remain unaffected. It is agreed by the parties hereto that the ineffective provision shall be replaced by a valid provision which is fair to both contracting parties and which, as far as legally possible, most closely resembles the economic purpose of the ineffective provision.

　　IN WITNESS WHEREOF, this Subcontract has been signed by the duly authorized representative of each Party hereto.

　　Contractor Subcontractor

　　Name Name

　　Position Position

　　Signature Signature

　　Date Date