海外工程分包合同英文.doc

SUBCONTRACT AGREEMENT Of MTN TK PROJECT Between QQQQQQ QQQQQQQQ LIMITED And GAMAL SAIDEWAZIRY Subcontract No QQQQQ MTN TOWER 20100715 2 Table of Contents ARTICLE 1 DEFINITIONS 3 ARTICLE 2 GENERAL 5 ARTICLE 3 PURCHASE ORDERS 8 ARTICLE 4 VARIATION ORDERS 9 ARTICLE 5 TIME SCHEDULE 10 ARTICLE 6 PROJECT MANAGEMENT AND SUBCONTRACTOR S PERSONNEL10 ARTICLE 7 QUALITY ASSURANCE 11 ARTICLE 8 WARRANTIES 12 ARTICLE 9 CONTRACT PRICE 13 ARTICLE 10 TAXES AND DUTIES 14 ARTICLE 11 GUARANTEES 14 ARTICLE 12 INSURANCE REQUIREMENTS 15 ARTICLE 13 MISTAKES IN INFORMATION 15 ARTICLE 14 ACCEPTANCE PROCEDURES 16 ARTICLE 15 DELAYS LIABILITY AND TERMINATION 16 ARTICLE 16 FORCE MAJEURE 18 ARTICLE 17 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY 19 ARTICLE 18 EFFECTIVE DATE OF CONTRACT 20 ARTICLE 19 FINAL PROVISIONS 20 3 SUBCONTRACT This Subcontract is made and entered into 27st Apr 2009 by and between Qqqqq Telecommunication Solution Co Ltd hereinafter referred to as Qqqqq or 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 Qqqqq and PHASE G hereinafter referred to as Client have entered into a supply agreement hereinafter referred to as Main Agreement for the supply by Qqqqq of TK services for the network to be built and operated by the Client in Sudan WHEREAS Qqqqq 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 5 Acceptance 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 4 1 8 Equipment shall mean hardware and software together with the necessary software manuals and other equipment specific documentation provided by Qqqqq 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 Qqqqq Information shall mean Qqqqq 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 Qqqqq 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 5 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 Qqqqq 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 Qqqqq 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 Qqqqq 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 1Subject to individual Purchase Orders submitted by Qqqqq 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 Qqqqq 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 Qqqqq and subcontractors only Notwithstanding the 6 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 Qqqqq 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 Qqqqq and Client 2 2In addition to this Subcontract document the following documents are hereby made part of this Subcontract APPENDIX 1PRICING BOQ APPENDIX 2PAYMENT TERMS APPENDIX 3SCOPE OF WORKS APPENDIX 4PO all other conditions shall always remain unchanged 2 4The Subcontractor shall not use subcontractors except Sudan subsidiary in the performance of the Subcontracted Works without the prior written consent of Qqqqq In the event that Qqqqq 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 7 2 5Without 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 6The 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 Qqqqq or the Client then such Permitting shall be defined in Appendix 3 Scope of Works 2 7The 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 Qqqqq 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 Qqqqq Copies of said certificates shall promptly upon request be forwarded to Qqqqq 2 8The 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 9The 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 Qqqqq 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 Qqqqq 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 Qqqqq Any costs arising from the use of said 8 tools shall be paid by the Subcontractor unless specifically agreed by both Parties to be the responsibility of Qqqqq 2 10The 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 11The Subcontractor has no authority to bind Qqqqq to any other agreement or obligation not been stated in this contract 2 12The Subcontractor and Qqqqq 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 Qqqqq 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 1Qqqqq 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 Qqqqq However Qqqqq 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 Qqqqq will cancel Subcontractor s share in this project at Qqqqq s own discretion according to Subcontractor s poor performance 3 2The 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 Qqqqq and Qqqqq 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 3The 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 4The Subcontractor has no right to reject any Purchase Order issued by Qqqqq under this Subcontract at a reasonable basis Consider putting it this way The Subcontractor will accept any and all Purchase Orders issued by Qqqqq under this Subcontract which is reasonable This clause shall not 9 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 5If Subcontractor refuses to accept POs issued by Qqqqq at reasonable basis then Qqqqq 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 Qqqqq to the Subcontractor ARTICLE 4 VARIATION ORDERS 4 1The Subcontractor acknowledges that Qqqqq and or the Client may wish to effect changes to Qqqqq s undertakings under the Main Agreement and that changes to the Subcontracted Works may be called for as a result of such change Consequently Qqqqq 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 Qqqqq 4 2Qqqqq 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 Qqqqq 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 Qqqqq 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 3Qqqqq shall upon the receipt of the Subcontractor s submission under Article 4 2 decide whether or not the change shall be carried out If Qqqqq decides that the changes shall be carried out Qqqqq 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 4In 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 10 Parties shall work in good faith to agree upon the prices and terms as soon as possible 4 5Notwithstanding anything contained in this Subcontract to the contrary Qqqqq may at its sole discretion but subject to a written notice given no later than three 3 Days prio