(Agreement No:)
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between
and
MTP, [___] tax identification number [___], represented by Mr. [___], [___],
[___],national identity number [___], both domiciled for these purposes at
[___].
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CONTENTS
1 HEADING ....................................................................................................................3
2 PREAMBLE (BACKGROUND)................................................................................3
3 DEFINITIONS.............................................................................................................3
4 AGREEMENT DOCUMENTS ..................................................................................6
5 SCOPE OF AGREEMENT ........................................................................................7
6 CONDITIONS PRECEDENT ....................................................................................8
7 SCOPE OF DELIVERY .............................................................................................8
8 SERVICES PROVIDER’S OBLIGATIONS ............................................................9
9 VARIATIONS AND CHANGE CONTROL ..........................................................11
10 INSTRUCTIONS, REPORTS AND MEETINGS ..................................................13
11 INSPECTION ............................................................................................................14
12 PROJECT MANAGEMENT ...................................................................................14
13 SERVICES PROVIDER WARRANTIES ..............................................................14
14 ERICSSON’S OBLIGATIONS ................................................................................19
15 PRICES ......................................................................................................................19
16 TERMS OF PAYMENT AND INVOICING ..........................................................19
17 DOCUMENTATION ................................................................................................19
18 PACKING AND MARKING ...................................................................................20
19 TAXES AND DUTIES ..............................................................................................20
20 DELIVERY AND ACCEPTANCE ..........................................................................20
21 SERVICE LEVEL AGREEMENTS........................................................................22
22 FINES AND RETENTIONS ....................................................................................23
23 INTELLECTUAL AND INDUSTRIAL PROPERTY ..........................................31
24 INDEMNIFICATION ...............................................................................................33
25 INDEMNIFICATION FOR EMPLOYEE NEGLIGENCE ..................................35
26 INFRINGEMENTS ...................................................................................................36
27 PRODUCT LIABILITY ...........................................................................................36
28 GENERAL LIMITATION OF LIABILITY............... ERROR! BOOKMARK NOT
DEFINED.
29 SUPPORT AGREEMENT, TRAINING AND CONSULTANCY SERVICES ...37
30 MODIFICATION OF AGREEMENT ....................................................................37
31 INSURANCE .............................................................................................................37
32 SUBCONTRACTING ...............................................................................................38
33 FORCE MAJEURE (RELIEFS) ..............................................................................38
34 CONFIDENTIALITY ...............................................................................................39
35 PERFORMANCE GUARANTEE ...........................................................................40
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36 TERMINATION .......................................................................................................41
37 ENTIRE AGREEMENT...........................................................................................42
38 ASSIGNMENT ..........................................................................................................42
39 NOTICES ...................................................................................................................42
40 LANGUAGE ..............................................................................................................42
41 GOVERNING LAW AND DOMICILE ..................................................................43
42 ARBITRATION ........................................................................................................43
43 EXPORT AND IMPORT REGULATIONS ..........................................................43
44 UNITED NATIONS CONVENTION ......................................................................44
45 COPIES OF AGREEMENT.....................................................................................44
1 HEADING
This Agreement is made and entered into on …........ 2015, (the “Effective
Date”) between Ericsson and Services Provider.
2 PREAMBLE (BACKGROUND)
Now, therefore, in consideration of the mutual promises set forth below, the
Parties agree as follows:
3 DEFINITIONS
The following words and terms shall, for the purposes of this Agreement,
have the following meanings:
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“Agreement Price
” means the price as specified in Article 15 Prices
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“Completion
Report “ means the records signed by Services Provider
and Ericsson confirming that the criteria for
Acceptance has been fulfilled as further specified
in Appendix 4 (Acceptance).
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”Third Party Hardware” means such hardware that is part of the Solution
but not delivered by Services Provider under this
Agreement and further specified in Appendix 1
(Statement of Work)
”Third Party Software” means such software that is part of the Solution
but not delivered by Services Provider under this
Agreement and further specified in Appendix 1
(Statement of Work)
Words indicating the singular only also include the plural and vice versa,
where the context so requires.
The headings of the articles are for convenience only and shall not affect
their interpretation.
4 AGREEMENT DOCUMENTS
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4.1 This Agreement shall consist of the following documents, as amended from
time to time as provided herein:
b) The Appendices:
Appendix 2 Prices
Appendix 4 Acceptance
Appendix 13 Warranties
4.2 This Agreement document shall prevail over the appendices, unless an
explicit reference has been made in this Agreement document to the effect
that a certain provision in an appendix shall prevail over a provision in this
Agreement document. The appendices shall prevail over each other in the
order listed above.
5 SCOPE OF AGREEMENT
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5.2 Ericsson’s relationship with the End Customer and in particular End
Customer’s requirements in relevant parts on Ericsson will have an impact
on Services Providers obligations under this Agreement. Therefore Services
Provider undertakes to use its best efforts to fulfil such End Customer
requirements based on the agreement between End Customer and Ericsson.
6 CONDITIONS PRECEDENT
6.1 Should Ericsson, within one (1) month of the Effective Date of this
Agreement not have:
a) signed a binding agreement with End Customer regarding inter alia the
Solution;
b) signed agreements with other Services Providers which will have a part
of Ericsson’s delivery to End Customer; and
c) issued a purchase order for the Solution.
then Ericsson shall have the right at any time to terminate this Agreement
ipso facto by written notice to that effect sent to the Services Provider.
6.2 Services Provider agrees that during the term of this Agreement it will not
initiate any form of contact with the Customer which could lead to the
Customer selecting Service Provider directly for the services. In the event
that, notwithstanding the aforesaid in this Section 6.2, Customer selects
Services Provider (or any of its Affiliates) as direct contracted, Services
Provider shall undertake full responsibility to the Customer with respect to
any contract awarded thereon without any liability to Ericsson and Services
Provider shall pay Ericsson a referral fee that equals to 40 % of the total
contract value so awarded the Services Provider (or any of its Affiliates) to
cover Ericsson’s costs and as compensation.
7 SCOPE OF DELIVERY
7.1 Services Provider shall deliver the Solution on the Agreed Date of
Implementation on the terms and conditions of this Agreement. Services
Provider understands and acknowledges that proper and timely delivery of
Solution is essential to Ericsson and that delay can cause severe damages
to Ericsson.
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a) fully support Ericsson so that Ericsson can fulfil its obligations towards
the End Customer;
b) upon Ericsson’s request and at Services Provider’s own cost and without
undue delay support Ericsson in responding to requests for information
from End Customer and participate in meetings with End Customer.
d) within [two (2) weeks from the Effective Date or promptly upon
Ericsson’s request] provide to Ericsson its detailed project plan and
organisation for the performance of the Services.
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http://www.ericsson.com/sustainability/download/pdf/brochure.pdf
l) comply with all labor obligations set forth in Appendix 7 and relevant laws
applicable in Chile or Perú
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o) A specific person engaged for Services shall not during the term of the
Services participate in a similar project for a competitor of Ericsson. At
Ericsson’s request Service Provider shall provide Ericsson with a
certificate of an approved security control for a particular person used by
Service Provider for performance of Services. If Service Provider’s
personnel perform any work on Ericsson’s premises, such personnel
shall comply with the instructions and rules to be observed by Ericsson’s
personnel.
9.1 Both Parties have the right to initiate changes pursuant to this Article 9 and
the other Party shall at its sole option be at liberty to accept or reject the
request and the issuing Party has the right to refuse or accept any
proposals following such change requests (“Change Request”).
9.2.1 In the event that Services Provider wishes to make a Variation, it shall
prepare a Change Request, and shall assign a unique number to such
Change Request and submit the completed Change Request to Ericsson for
approval.
9.2.2 In the event that Ericsson wishes to make a Variation, it shall notify Services
Provider in writing specifying a description of the requested change and the
reasons for the requested change and requesting Services Provider to
complete an implementation proposal. Services Provider shall, provide cost
and time estimates for the Change Request with an accuracy of +/- 10 %,
and as soon as reasonably practicable and in any event, not more than
fifteen (15) Business Days after receipt of written request from Ericsson,
having regard to the nature of the Change Request and any requirements of
Ericsson with regard to timescale expressed at the time the request was
made.
9.4 Each Party shall carry its costs in relation to preparing, handling and
investigating Change Requests.
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9.5.1 Each Change Request shall specify a description of the potential Variation
with details of:
9.5.2 Ericsson shall review the Change Request and as soon as reasonably
practicable, and in any event not more than thirty (30) days after receipt of
the Change Request from Services Provider, Ericsson shall inform Services
Provider in writing of:
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9.7 If Ericsson notifies Services Provider in accordance with Article 9.5.2, the
parties shall use all reasonable endeavours to agree to amend some or all of
the contents of the Change Request and the Change Request shall be
promptly resubmitted by Services Provider to Ericsson, following which the
procedure in Article 9.5.2 shall be repeated.
9.9 For the avoidance of doubt any pre-printed terms that may appear or be
referred to on a Party’s document when submitting a Change Request or a
proposal following such Change Request shall not apply.
9.10 The Change Control Procedure shall only be used in relation to the agreed
scope of work as defined by Appendix 1 (Statement of Work), and shall not
be used as a mechanism to amend or otherwise change other parts of this
Agreement but such changes or amendments shall be made in accordance
with Article 30 (Modification of Agreement).
9.11 The Parties define the maximum level of customization of the Solution to be
15%, included within the Agreement Price. Any customization that is
required by Ericsson over and above said percentage shall be considered as
a Variation, subject to the Change Control Procedure defined in this Article
9.
10.1 Services Provider shall follow any reasonable and relevant instructions
provided by Ericsson with regard to the execution and completion of its
obligations under this Agreement. Ericsson will have all contacts with End
Customer and Services Provider shall not be in contact with End Customer
without Ericsson’s prior written approval.
(Agreement No:)
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11 INSPECTION
12 PROJECT MANAGEMENT
12.1 Upon signing of this Agreement and prior to the start of the project Services
Provider shall establish its project organisation and appoint contact persons
for any contacts with Ericsson. Such contact persons shall have the
necessary authority to make day-to-day decisions and shall be approved by
Ericsson prior to the start of the project. The relevant Statement of Work will
contain and provide for the detailed project organisation depending on the
type and size of the relevant individual project.
12.2 Services Provider shall use a well-established project process suitable for
the activities to be performed by Services Provider under this Agreement.
13.1 Notwithstanding the other specific warranties that the Services Provider
grants in accordance with that indicated herein below in this Article or in one
or more Annexes to the Agreement, with respect to the implementation of
the Services to be rendered pursuant to this Agreement, the Services
Provider warrants the following:
(a) That the Services will be carried out with due diligence, and in a
competent and professional manner and in accordance with the norms
and good information technology (IT) practice and maintenance that are
accepted for these type of Services;
(b) That the Services will be carried out in accordance with the requirements
of this Agreement and specifically as set out in Appendix 1 (Statement of
Work);
(c) That the Services will be adjusted in accordance with the purpose for
which they are destined.
Services Provider
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13.2 In case of a breach of the warranties in Article 13.1, Services Provider shall,
at its own cost, remedy the default if claims are made during a warranty
period of twelve (12) months from the relevant Acceptance Date.
(c) The Services Provider shall warranty the totality of the Solution, including
the Software and Equipment that is acquired under this Agreement, if
applicable. The Services Provider that provides the Solution shall be the
party that assumes complete liability for the same in all environments in
which the Solution is found.
(d) Notwithstanding that third parties are the Software and Equipment
providers, this shall not liberate the Services Provider from its obligations
under this warranty, it being the Services Provider that assumes
complete liability for the Services to be carried out, including the software
and equipment to be provided.
(e) If the Services Provider can not or does not correct the fault and/or
comply with the obligations assumed under this warranty in a timely
manner, Ericsson may take responsibility for the correction of the
detected fault, either on its own or through a third party, and the Services
Provider will remain liable for the expenses incurred due to this action.
The fact that Ericsson has inspected the Serrvice, without discovering
defective works, or has approved said works or part of the same, or
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made payments for said works to the Services Provider, does not
liberate the latter from its obligations under this warranty.
13.4 Hardware Warranty. The Services Provider warranties that the hardware
shall have the manufacturer warranties in favor of Ericsson for a term of at
least until the issuance of the final acceptance certificate on the Acceptance
Date for the project.
(a) It will be applicable to the errors of source code and any error detected in
the design, construction and configuration of any component that was
worked on by the Services Provider.
(b) The Services Provider shall warranty for a period of not less than three
(3) months as from each of the Acceptance Milestones, at its own cost,
that is, without consuming the hours contracted and available for the
evolutionary processes, that it will resolve all and any failure of the
elements designed, developed and/or configured by the Services
Provider.
(c) In the case that the Services Provider detects a failure that is not under
its responsibility, it will report the same to Ericsson.
13.6 Processing Capacity Warranty. Covers the Solution and all components
which shall be adjusted to the needs and current and anticipated growth of
End User production, taking into account:
(b) If the Solution does not function in accordance with the capacity
warranty, Ericsson is authorized to request that the Services Provider, at
its own cost and fulfilling the Service Level Agreements established in
Article 21 and Appendix 1, takes all corrective measures necessary for
the purposes of assuring the fulfilment of said warranties, including, but
not limited to the replacement, adjustment and/or complement of the
Equipment, the Installation and integration of the Equipment or additional
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13.7 Solution Warranty. Covers that all standard packets of Software, whether of
its own or of third parties, are free of Bugs and manufacturing defects that
affect the normal functioning of the software and/or the parametrizations
made during the implementation, taking into consideration that:
(a) The Services Provider shall warranty that as from the Acceptance Date
of the project by Ericsson, the Software that is acquired under this
Agreement, independent as to whether it is of the Services Provider or
third parties, shall perform correctly all and each one of its functions
established in this Agreement and its Appendices, without interruptions.
If the Software does not operate in the indicated manner, the Services
Provider shall repair, correct or substitute said deficiency at its own cost
(including all the services carried out for said cause, such as for example
transport, feeding or other).
(c) The Services Provider should guarantee the support of all the products
included in the Solution, during a period of at least 10 years as from the
commencement of the project, to the extent that Ericsson maintains the
updated versions of the software components of the Solution to be able
to obtain the support of the same.
(a) Diagnostic. All and any test, evaluation or work of any type necessary to
identify the source of a failure, damage or deficiency and to determine its
coverage or exclusion by the warranties established in this Article 13
shall be carried out by the Services Provider at its own cost and fulfilling
the Service Level Agreements established in Article 21 and Appendix 1,
regardless of the coverage or exclusion of the respective failure and until
a complete diagnostic of the cause and indication of the measures to be
adopted has been obtained. The diagnostic shall be sufficient to
determine whether the failure is covered by the warranties established in
this Article 13 or not. The complete diagnostic will only be produced in
cases covered by the services warranty or maintenance contract. This
will only apply for the components of the Solution.
(Agreement No:)
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13.9.1 Services Provider shall handle warranty fault reports in accordance with
Ericsson’s standard procedures. All transportation costs and risk of loss
incurred with respect to the repair and/or replacement of defective goods
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14 ERICSSON’S OBLIGATIONS
14.1 Ericsson shall fulfil its responsibilities set out in the Responsibility Matrix in
Appendix 1 (Statement of Work).
15 PRICES
15.1 The Agreement Price is fixed and firm at 82,131.84 USD (eighty four
thousand one hundred and thirty one and eighty four cents of US American
dollars), as specified in more detail in Appendix 2 (Prices), except for such
other sum as may become payable under this Agreement by reason of any
Variation. Services Provider shall not be entitled to any other compensation
under this Agreement than the Agreement Price and shall be solely
responsible for the Agreement Price being complete, except to the extent
expressly specified in this Article 15 (Prices) or approved in writing in
advance by Ericsson from case to case.
15.3 For the avoidance of any doubt, the Agreement Price shall always include
salaries and salary related costs, taxes, dues, levies, overtime
compensation, traveling time compensation, allowances etc.
15.4 Services Provider shall treat Ericsson as its most favored customer by
granting Ericsson prices and conditions better than granted to other
customers of Services Provider for the same or comparable products and
services.
16.1 Services Provider shall invoice Ericsson only for such parts of the Services
that has been accepted by Ericsson in accordance with Article 21 (Delivery
and Acceptance) below.
16.2 Ericsson shall pay Services Provider for undisputed invoices within ninety
(90) days from the date of the receipt of the invoice.
16.3 All amounts payable under this Agreement shall be made in USD.
17 DOCUMENTATION
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17.1 The Documentation shall be supplied in English or Spanish and in the format
requested by Ericsson within the times stipulated in the Time Schedule. The
Documentation shall be suitable for End Customer’s use of the Solution and
Ericsson’s use and further development of the Solution.
19.1 Services Provider shall bear at its own cost any taxes, duties, levies, social
charges, and other fiscal charges imposed on it or its employees, agents and
Services Providers and keep Ericsson indemnified from any duties, taxes,
levies, and other fiscal charges if imposed on Ericsson in connection with the
execution of the Services. Upon request by Ericsson, Services Provider shall
show evidence that the applicable taxes have been paid.
20.1 General
20.2.1 Ericsson shall at its option at any time during the project be entitled to
request that the Solution or part thereof, including any Services, is brought
into (commercial) operation in the Environment. This shall not relieve
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20.3.1 Unless otherwise set out in the relevant appendices or as further specified
below, the Acceptance Activities shall be performed in accordance with
Appendix 4 (Acceptance) and Ericsson reasonable instructions and planning
directives. Acceptance Criteria shall be based on the requirements set out in
Appendix 1 (Statement of Work) and any other relevant requirements and be
specified in Appendix 4 (Acceptance).
20.3.4 In the case that the delivery of the Services, shall be divided into and
delivered in partial deliveries or specific phases, each such delivery shall be
subject to the procedures regarding Acceptance described in this
Agreement. Following completion of one delivery or phase and before
continuing or starting a next phase Services Provider shall, where deemed
possible and provided it will not unreasonable delay the project and cause
harm to Ericsson, seek Ericsson’s written permission to continue.
20.5.1 Upon completion of Acceptance Activities, Services Provider will submit the
agreed records, and protocols as documentary evidence of completion to
Ericsson for approval. Ericsson shall have the right during fifteen (15)
Business Days to verify the submitted results. Provided that the result of the
Acceptance Activity together with relevant documentation shows that the
result is in accordance with the Acceptance Criteria, any other outstanding
errors, omissions or other relevant issues have been corrected or
satisfactory and permanently resolved the delivery shall be deemed
accepted on the last day of Acceptance Activities and Ericsson shall accept
the delivery in writing.
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20.5.2 Should the delivery fail to meet the Acceptance Criteria, Ericsson shall be
entitled to reject the delivery and require Services Provider to correct the
delivery and perform a repeat Acceptance Activity. Ericsson may at its
discretion accept part of the delivery.
20.5.3 Services Provider shall promptly and at its own cost, remedy any faults or
problems identified during the Acceptance Activity. Following Services
Provider’s due measures in respect of the rejected delivery, corrected
delivery shall be submitted for a repeat Acceptance Activity.
20.6.1 As part of the Services to implement the Solution, the Services Provider shall
complete the Acceptance Activities as agreed by the Parties for all phases
and stages of the project. The Services Provider shall fulfill the terms
established for each Acceptance Activity. The non-fulfillment of the same
shall give rise to the application of fines. Ericsson shall consider as a serious
breach any deviation of 15% or more with respect to the completion of
Acceptance Activities as further specified in Appendix 4 (Acceptance) and
set out in the Time Schedule in Appendix 1 (Statement of Work) as agreed
by and between the Parties at the commencement of the project.
20.7.1 During the phase of analysis and design of the Solution, the Services
Provider and Ericsson shall establish the time of the response, capacity and
availability for each interface.
20.7.2 Ericsson shall define the levels of response times, capacity and availability
applicable to the interface within the Solution provided by the Services
Provider, for the purpose of complying with the Service Level Agreement
referred in Appendix 3.
21.1 The Services Provider shall fulfill the Service Level Agreements, as
established in Appendix 3.
21.2 The Service Level Agreements may be amended from time to time by the
Parties upon mutual agreement, with the objective of maintaining
consistency with the current industry standards.
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21.3 Unless otherwise established in the Agreement, the Services Provider shall
be responsible for operating all tools and procedures that are delivered by
Ericsson to monitor, measure and report levels of compliance with the
Service Level Agreements established in Appendix 3. The referred tools and
procedures will be subject to audit by Ericsson.
22.1 If Services Provider at any time has any reason to believe that there will be
delays in relation to the Agreed Date of Implementation, Services Provider
shall promptly notify Ericsson in writing providing its proposal for revised
planning schedule and corrective actions. Such notice shall not relieve
Services Provider from any obligations arising out of this Agreement.
22.2 Should, due to circumstances for which Services Provider is responsible, the
completion of Services and/ or the supply of the Solution be delayed at the
relevant Agreed Date of Implementation subject to Variations leading to any
agreed extended or postponed period for delivery, as the case may be,
Ericsson shall have the right to impose fines on the Services Provider.
22.3.2 The actions that the Services Provider adopts to avoid or mitigate the delays
in the project, as previously indicated, may in no case affect the activities
and terms for which Ericsson is responsible.
22.3.3 Notwithstanding the fines that may be applicable, with the purpose of
controlling the advance of the project, the Services Provider shall issue bi-
weekly reports and meet with the project manager designated by Ericsson
on a monthly basis or at least bi-monthly.
22.3.4 If the amount of the fine is equal or greater than 30% of the total value of the
respective milestone and the accumulated delay is 180 days or more,
Ericsson is authorized to, at its sole discretion, to cover the guarantee bond
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22.3.5 The aforementioned fine shall not be applied if the delay or breach is
produced by an act of God or Force Majeure or due to a cause attributable to
a third party or due to a cause attributable to Ericsson. In these cases,
Ericsson shall extend the term of delivery of the promised product for a term
equivalent to the duration of the delay or respective impediment, applying for
these purposes the procedure established for such purpose in Article 33.
Any delay or breach attributable to Ericsson or a third party should be
represented in writing by the Services Provider to the project manager
designated by Ericsson within 48 hours following occurrence of the delay or
having evidenced the breach, as applicable, with the purpose that the
Services Provider may take measures as appropriate to avoid or mitigate its
impact on the terms agreed for the execution of the Services, as established
in the Agreement. If the Services Provider does not comply with this
obligation, it will be liable for the delay or the respective breach.
22.3.6 In addition to application of the fine, Ericsson will communicate to the project
manager designated by Services Provider the cause(s) that give rise to the
fine, granting the Services Provider 10 business days as from the date of
such communication in writing by Ericsson, to formulate its observations or
opposition. Once Ericsson has received the observations or opposition, or
the term has lapsed and none have been made, Ericsson may confirm the
application of the fine or revoke its application, and in a term that does not
exceed 10 business days, communicating in writing its final decision. In the
case of revocation, Ericsson will return to the Services Provider the sum or
amount received for concept of said fine on the following date of advance
payment of Agreement Price, as applicable.
A breach of service levels will give rise to the application of fines for each
date of delay that is incurred as a result of this, in accordance with Article
22.3 (Fines for Delays). Given that in its capacity as developer of the
software and/or Solution, the Services Provider has undertaken to fulfil
minimum standards as set forth in Article 21 and Appendix 1, each time that
5% errors occur in the user acceptance testing on the implementation of the
defined test plan, this will result in one (1) day of delay attributable to the
Services Provider.
During the tests following the unit and system tests, the breaches of the
service level agreement associated with system integration will be reports as
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errors of application and, therefore, the scheme of fines set forth in Article
22.6 herein below will be applied for these cases:
(1): According to the table of SLO incidents exposed for each one of the
Service Level Objectives.
22.7 Fines for Breach of Service Levels for Evolutionary, Corrective and
Perfection Support
(1): According to the table of SLO incidents exposed for each one of the
Service Level Objectives.
22.8 Fines for Breach of Service Levels associated with the Reactive Support
Service.
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The fines shall be calculated for quarterly periods that have passed for the
services provided by the Services Provider during the same period, said
calculation is defined in of Table Nº 1 of fines for breach herein below.
The amount of the fine shall be determined in accordance with the following
sum: (i) value of base fine for event registered in quarterly period, as
indicated in column 4 of Table Nº 1, plus (ii) amount of variable fine per
event, as indicated in column 5 of Table Nº 1, proportional to the grade of
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breach. In any case the Maximum Amount of Fine per event is described or
indicated in column 6 of Table Nº 1.
For purposes of calculation of fines, the alpha factor has been defined as
follows:
Where:
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22.9 Fines for Breach of Service Levels associated with the Proactive Support
Service.
Fines for breach of the anticipated Service Level Agreements (column 3) are
established as indicated in Table Nº 2 below (columns 4, 5 and 6).
The fines are calculated for quarterly periods that have passed for the
services provided by the Services Provider during the same period.
The amount of the fine shall be determined in accordance with the following
sum: (i) value of base fine for event registered in quarterly period, as
indicated in column 4 of Table Nº 2, plus (ii) amount of variable fine per
event, as indicated in column 5 of Table Nº 2, proportional to the grade of
breach.
In any case, the maximum total amount of the accumulated fines to be paid
by the Services Provider corresponding to one same month shall not exceed
25% of the total price of the contract assigned to the support service.
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Furthermore, the breach by the Services Provider of the service levels for a
period of three months or more, whether consecutive or not, that triggers the
fines set forth in this Article and shall be considered a serious breach of the
Agreement with the consequences that are derived from the same.
On the other hand, any delay that results in a serious and significant gap in
one or more phases of the project or in the total term of the same, as
corresponding, in addition to triggering the fines set forth in this Article, will
be considered a serious breach of this Agreement.
The application of the fines established in this Article shall not in any case
limit or restrict in any manner the right of Ericsson to exercise other rights
and/or actions that may be applicable under the Agreement and/or the law.
Furthermore, these fines do no limit or restrict in any manner the liability of
the Services Provider due to the implementation of the project and/or the
Services object of this Agreement.
The deductions for fines shall be made in the following invoice, in the case of
being under the regime of support and maintenance services, or exercised
by Ericsson by issuing the collection requirement in writing to the Services
Provider as indicated in the Agreement or its Appendices.
If a fine is applicable for breach of service levels, Ericsson will inform this in
writing to the Services Provider who shall have 10 business days to
formulate its objection. Upon the lapse of said term and except if it is proven
that the breach is not attributable to the Services Provider in accordance
with the justifications relayed by it in its objection, Ericsson shall impose the
respective fine, by making a deduction to the invoice or statement of
payment for the following month or collect the same by way of written notice
of the requirement for payment to the Services Provider, that shall contain its
amount and contractual support, as applicable, in accordance with this
Agreement.
If it is shown that the delays are attributable to the Services Provider during
the implementation of the project, thereby generating the application of fines
in accordance with the Agreement, Ericsson shall exercise the respective
fine and the Services Provider shall pay the same within the 30 business
days as from the date of the written requirement, when the delay cannot be
remedied. If the fine is not paid in full and in a timely manner by the Services
Provider, this shall be considered a serious breach of the Agreement, giving
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Ericsson the right to exercise all rights that may be corresponding in each
case according to the Agreement.
22.11 Retentions
22.11.1 Ericsson may retain from any payment or partial payment of the Services
Provider the sums that it deems sufficient to pay any of the following
concepts, as appropriate:
(b) If it is shown that the Services Provider has not made payments which it
was obligated to make, for which Ericsson is responsible, unless those
payments are or civil or commercial order disputed between the Services
Provider and its Services Providers;
(c) If the Services Provider, any of its Services Providers or other persons
that act in their representation or on behalf of them, cause damages to
any asset or installation of Ericsson;
(d) If the Services Provider incurs any serious breach of this Agreement.
22.11.2 In the indicated cases, Ericsson shall have the right to retain from any
pending payment a sum sufficient to (1) assure, satisfy, balance and/or
defend itself against such claims or any action that may be brought or
sentence that may be pronounced in said cases; (2) secure and make
payments that are pending and ordered by any competent authority; (3)
indemnify Ericsson for any loss, liability, damage, costs and expenses, that
may be incurred in relation to these matters in the terms established in the
Contract. If the amount retained is insufficient, tehe Services Provider shall
pay to Ericsson the difference within 10 calendar days following the written
requirement of Ericsson in such sense.
22.11.3 The retention of 15% to be paid against the Final Acceptance Certificate may
be attributed to any breach of the Agreement by the Services Provider, at the
sole criteria of Ericsson, that in any case will be informed with reasons and in
writing to the Services Provider.
22.12 The payment of fines shall not relieve Services Provider from the obligation
to deliver the Solution. The aforesaid fines shall be the exclusive
compensation for any delay. However, when the maximum cap is reached,
Ericsson is automatically entitled to immediately terminate this Agreement or
any part thereof, and claim compensation for its damages. Ericsson may
also choose to waive its right to terminate and instead accept delivery and/or
performance and claim compensation for its damages.
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23.1 All information that is generated due to the Services and/or that Ericsson
provides to the Services Provider, whether or not Confidential Information,
such as the trademarks, logos, names, marketing slogans or other graphical
names or expressions that identify Ericsson or its information, industrial
secrets, copyright and/or patents, and other intellectual and/or industrial
property rights of Ericsson, are and shall remain of its exclusive ownership
and title, consequently, it shall be understood that no rights over any of the
aforementioned property have been transferred due to the implementation of
the contracted Services.
23.2 All confidential or proprietary information that the Services Provider provides
to Ericsson, as well as the trademarks, logos, names, marketing slogans or
other graphical names or expressions that identify the Services Provider or
its information, industrial secrets, copyright and/or patents, and other
intellectual and/or industrial property rights of the Services Provider are and
shall remain of its exclusive ownership and title, consequently, it shall be
understood that no rights over any of the aforementioned property have
been transferred due to the implementation of the contracted Services. In
any of these cases, if said information is part of or included in any project
deliverable, it shall be understood that a gratuitous and perpetual license has
been conferred to Ericsson to use said information for all purposes of the
project.
23.3 All confidential or proprietary information of third parties that the Services
Provider provides to Ericsson, as well as the trademarks, logos, names,
marketing slogans or other graphical names or expressions that identify said
third parties or its information, industrial secrets, copyright and/or patents,
and other intellectual and/or industrial property rights of said third parties are
and shall remain of the exclusive ownership and title of said third parties,
consequently, it shall be understood that no rights over any of the
aforementioned property have been transferred due to the implementation of
the contracted Services. In any of these cases, if said information is part of
or included in any project deliverable, it shall be understood that a gratuitous
and perpetual license has been conferred to Ericsson to use said information
for all purposes of the project.
23.4 Information shall include all studies, methodologies and reports that are
developed together by the Parties or by the Services Provider for Ericsson,
and the documents, data, documental units, client universes, samples,
products or segments, as well as the results or deliverables obtained due to
the execution of the Agreement.
23.5 The Parties expressly agree that all products, data bases, processes,
procedures, computer programs, inventions, discoveries or improvements
and, in general, any element or information that any of the Parties possess,
use or have previously developed, prior to the date of commencement of
Services object of this Agreement, are and will be the exclusive property of
the corresponding party or its respective licensees, as corresponding,
hereinafter “Background”. Services Provider shall only have the right to use
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23.6 For the purposes of providing Services under this Agreement, the Services
Provider will be granted access to tools and systems of Ericsson. With
respect, the Services Provider undertakes the following:
(a) To use said tools and systems properly and correctly;
(b) To occupy them for the sole purpose of performing its obligations and the
Services under this Agreement, being expressly prohibited to make
arbitrary use of the same;
(c) To ensure that only qualified and competent employees have access to
said tools and systems;
(d) To take all measures to prevent any problems, inconveniences and
modifications associated with said tools and systems;
(e) Not to alter or destroy said tools and systems;
(f) To maintain all confidential information associated with said tools and
systems fully reserved and confidential in accordance with the
confidentiality obligations established in this Agreement.
(g) The Services Provider shall fully indemnify Ericsson against any
damages, losses, costs, fines, charges and/or other disbursements of
any type that may be applied to Ericsson or that Ericsson is obligated to
pay as a result of the Services Providers use of said tools and systems,
or the use of said tools and systems by any person under the
responsibility of the latter.
(h) To ensure that any Services Providers who have access to said tools
and systems of Ericsson are obligated to obey the restrictions set forth in
this Article 23.6.
23.7 The property of the Deliverables that result from the Services object of this
Agreement is and will be the property of Ericsson. Ericsson shall have the
right to use, modify and/or alter the Deliverables for any purposes
whatsoever. Services Provider shall have no right to use, alter and/or modify
the Deliverables for any purposes whatsoever and may therefore not i.a.
license the Deliverables to any third party, or make use thereof in connection
with research commissioned by any such third party. In the case of the
Background of the Services Provider and/or its licensees that form part of
the project, the Services Provider shall grant and or cause to be granted to
Ericsson, as applicable, a non-exclusive and irrevocable use license, without
any cost to the latter. Said license shall be perpetual in the case of
Deliverables that are not programs or software of those whose license is
temporary. Consequently, the Services Provider shall respect these rights
throughout the entire duration of the Agreement and following its termination,
notwithstanding the cause of its termination. Deliverables are understood for
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23.8 Furthermore, the Parties shall have equal rights over any type of materials,
literary works or other copyright (such as programs, programming tools,
documentation, reports, drawings and other similar works) that both Parties
contribute to develop or produce under this Agreement. In these cases, the
Parties shall mutually concede a perpetual, non-exclusive, irrevocable,
gratuitous and global license to use, copy, adapt, modify or use such
materials in accordance with that established in the Agreement.
23.9 The Services Provider guarantees that the implementation of the Services
and its results shall not enter into conflict with any property right of third
parties.
23.10 None of the Parties shall take any action that prejudices the property rights
of the other, as previously stipulated.
23.12 Services Provider undertakes to have entered into such agreements with its
employees, or other personnel that Services Provider has hired for the
fulfilment of its obligations under this Agreement, in order to assure that the
title and the ownership to any Deliverables hereunder is passed to Ericsson.
23.13 Services Provider shall not, without the prior written consent of Ericsson,
introduce Background, whether such Background is owned by Services
Provider or by any third party, in the Solution to which it has no right to grant
licenses to Ericsson in accordance with Article 23.5. Services Provider
further undertakes to inform Ericsson without undue delay and always prior
to delivery of the Solution of any intellectual property rights owned by the
Services Provider or, to the best of its knowledge, owned by any third party
which may be infringed by the use of the Solution.
23.14 This Article 23 shall survive the termination of this Agreement for whatever
cause.
24 INDEMNIFICATION
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24.1 It shall be the responsibility and direct and exclusive liability of the Services
Provider to pay any fine (except regulatory fines), tax, charge, sanction,
limitation to the development of business, indemnification and/or
disbursement (“Loss”) of any type that may be applied to Ericsson or that
Ericsson is obligated to pay, whether directly or jointly and severally liable, or
subsidiarily liable, due to any action, claim, prejudicial or precautionary
measure, complaint or procedure (“Action”) that is filed by any Third Party or
imposed by any authority, in any jurisdiction, and that is a consequence of a
breach of this Agreement by the Services Provider or the provision of
Services, that is related to:
(a) The timely and/or complete fulfilment of all and each one of the labour
and social security obligations that correspond to the employees,
contractors and Services Providers or persons that provide Services to
the Services Provider in any manner during the force of this Agreement;
(c) The use of defective or damaging parts or products for the health of
persons or animals or for the environment or the ----- on the environment
and/or goods of third parties in the installation, withdrawal or operation of
any element or component of the Services; and in general any adverse
effect on the right of persons to health and to live in an environment free
of contamination.
(d) Any actions tending to exercise the rights of consumers. In this case, the
maximum limit of liability shall correspond to 10% of the total Agreement
Price, notwithstanding the type of damage in accordance with that
established in Article 28 of this Agreement and otherwise applying that
established in the Agreement.
24.3 Provided that Ericsson was notified of any Loss or Action, Ericsson may
retain from the payments that it must make to the Services Provider the sum
claimed or that may be appropriate to disburse until a resolution is reached
as to the existence of the respective obligation. Ericsson may in any event
require the reimbursement of the sums disbursed and proven that were not
included in the retention.
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24.4 The Services Provider shall assume, at its entire cost and responsibility, the
judicial and/or administrative defence that is corresponding, if Ericsson
requires it to do so, or otherwise reimburse the totality of the disbursements
that Ericsson makes for such concepts. For this purpose, any Loss or Action
that is made known to Ericsson shall be communicated to the Services
Provider within five (5) business days of taking formal knowledge of the
same; if Ericsson has not been informed or notified of the Loss or Action, the
Services Provider shall communicate the same to Ericsson within the same
aforementioned term. Unless the parties agree to the contrary, the Services
Provider shall be obligated to resolve the dispute.
24.5 If the Services Provider assumes the defence this shall not be considered a
waiver of Ericsson to reassume it any time, charging the Services Provider
the disbursements that it may incur. In the cases where the Services
Provider carries the defence or effects the actions necessary to resolve the
Loss or Action , Ericsson may give reasonable general or specific
instructions regarding the mode of proceeding and requiring the Services
Provider to substitute the attorneys contracted by the latter, the Services
Provider being obligated to fulfil such instructions or requirements.
24.7 The Services Provider shall be expressly liable and assumes as its own not
only its actions or omissions rather also those of its contractors, Services
Providers and, in general, any third party to which it entrusts one or more
activities, tasks and/or services in relation to the project.
24.8 If the Services Provider is obligated to reimburse Ericsson for any of the
concepts indicated in the aforementioned paragraphs and fails to do so
within the required term, Ericsson may, without need for any authorization
whatsoever, deduct the amounts and make the respective adjustment from
any sum that Ericsson owes to the Services Provider or that has accrued in
its favor by virtue of this Agreement.
24.9 All acts that the Services Provider carried out in the name of Ericsson for
these purposes, shall safeguard the reputation of Ericsson. The Services
Provider shall contract attorneys and professionals of the quality and level of
knowledge recognized according to the nature of the Loss or Action,
handling itself at all times appropriately before the authorities and
counterparties; and respect all ethical standards that are applicable. A
breach of this obligation shall be considered a serious breach of the
Agreement.
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25.1 Services Provider and Ericsson agree to indemnify and hold each other
harmless from and against all damage or injury (including death) to property
or person resulting from the intentional or negligent acts or omissions from
their respective officers, employees, agents, Services Provider or Services
Provider’s Services Providers in connection with the performance of this
Agreement. A Party's obligation to indemnify the other Party under this
Article 25 (Indemnification for Employee Negligence) shall however be
limited to EURO one million (1,000,000) for each damage occasion.
26 INFRINGEMENTS
26.1 Services Provider shall defend, indemnify and hold harmless Ericsson, other
Ericsson Companies and/or End Customers from and against any and all
damages suffered and costs and expenses (including reasonable attorneys’
fees) incurred as a result of any claim, suit or proceeding brought against
any of them based on the allegation that the use, sale, distribution or other
disposal of the Solution, the Services and/or the Documentation constitutes
an infringement of any intellectual property rights or applications thereof
(including but not limited to patents, utility models, mask work protections,
industrial designs, copyrights and trademarks) or an unauthorized use of
know-how, trade secrets, or other proprietary rights; provided that Services
Provider has been notified without undue delay in writing of such claim, suit
or proceeding and given authority, information and assistance (at Services
Provider’s expense) to settle the claim or control the defense of any suit or
proceeding.
26.2 In the event that the Solution and/or the Documentation or any part thereof
are in such suit or proceeding held to constitute an infringement or their
further use, sale, distribution or other disposal is enjoined, Services Provider
shall promptly, at its own expense and option, either:
a) procure for Ericsson, other companies within the Ericsson group and End
Customers the right to continue the use, sale, distribution or other
disposal of the Solution and/or the Documentation ;
c) modify such Solution and/or the Documentation so that they become non-
infringing without detracting from function or performance.
26.3 This Article 26 shall survive the termination of this Agreement for whatever
reason.
27 PRODUCT LIABILITY
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28.1 In order to support the proper operation of the Solution, Services Provider
and Ericsson have negotiated and agreed upon the attached terms and
conditions related to support.
28.2 The Parties agree that adequate training of Ericsson’s and End Customer's
personnel is required for the proper operation and maintenance of the
Solution.
28.4 The Services Provider shall, to the extent it does not hinder or delay the
delivery of the Solution or the performance of the Services, provide
Ericsson's employees with the opportunity to work closely together with the
Services Provider’s employees and to gain knowledge from such employees.
29 MODIFICATION OF AGREEMENT
29.1 In the event that either Party wishes to amend any terms or conditions of this
Agreement, save those specifically defined in Article 9 (Variations and
Change Control), the Party shall provide written notice of the required
modification to the Agreement to the other Party detailing the requested
changes and the reasons for such changes.
29.2 Any modification to the terms of the Agreement according to Article 30.1
above shall be mutually agreed and signed by an authorized representative
of both Parties prior to such variation coming into effect.
30 INSURANCE
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31 SUBCONTRACTING
Services Provider may not subcontract the whole or part of this Agreement
without the prior written consent of Ericsson. Should Services Provider
receive consent from Ericsson to use Services Providers, Services Provider
shall assume the same responsibility for such Services Providers in relation
to Ericsson or any other person or entity as for Services Provider's own
personnel under this Agreement, including, but not limited to, warranties,
indemnities and insurance policy, and shall be responsible for the
performance of such Services Providers as if the activities were performed
by Services Provider.
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32.2 In case of Force Majeure, the relevant party shall promptly notify and furnish
the other party in writing with all relevant information thereto.
32.3 Should an event of Force Majeure continue for more than three (3) months,
Ericsson shall have the right to terminate this Agreement
33 CONFIDENTIALITY
This commitment shall impose no obligation upon either Party with respect to
any portion of such information that:
a) was known to the receiving Party prior to its receipt from the
other Party;
33.2 Services Provider shall ensure that neither it nor any of its Services
Providers and/or suppliers advertise, publish or otherwise disclose in any
form the appointment of Services Provider as a supplier of the Solution and
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the Services, the terms of this Agreement, nor make any reference to
Ericsson or End Customer(s) without Ericsson’s prior written approval. All
copies of material relating hereto which is intended for publication in any
form must first be submitted to Ericsson for approval.
34 PERFORMANCE GUARANTEE
34.1 Services Provider shall, as a guarantee for its undertakings under this
Agreement, furnish a Performance Guarantee in favor of Ericsson. The
Performance Guarantee shall be provided prior to commencement of any
activities under this Agreement and shall be:
a) equal to a sum of thirty per cent (30 %) of the total value of this
Agreement during the execution of Services Provider’s obligations, and
ten per cent (10 %) during the warranty period stated in Article 13
(Services Provider Warranties);
34.2 The amount of the Guarantee Bond may be reduced by mutual agreement of
the Parties in the case of suppression or cancellation by Ericsson of project
milestones.
34.3 If for any reason the term of duration of the project is extended and
consequently the Agreement is extended, the Services Provider is obligated
to renew or substitute the Guarantee Bond at least 60 days prior to its expiry,
so that it remains valid for the extended term, and until one (1) month after
the expiry of the warranty period.
34.4 Any condition distinct from the aforementioned which means that the
referred Guarantee Bond is not accepted by Ericsson shall mean that the
Services Provider incurs in a delay exclusively attributable to it in the
implementation of this Agreement.
34.5 It shall not be understood in any case that the amount of this Guarantee
limits in any manner the liability of the Services Provider facing Ericsson.
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34.6 In addition to the above guarantee, [TBC Services Provider’s ultimate parent
company] shall provide an irrevocable and unconditional guarantee, as a
debt of its own, with regard to Services Provider’s obligations and/or
liabilities under this Agreement. Such guarantee shall be provided separately
in writing. The said guarantee shall be provided not later than 30 days upon
the signature of this contract and Ericsson has no payment obligation etc.
until Ericsson has received the said guarantee.
35 TERMINATION
35.2 Ericsson shall be entitled at any time to terminate this Agreement, in whole
or in part, by giving Services Provider a thirty (30) Days written notice.
35.3 In the event of Ericsson’s termination under Article 36.1 above, Ericsson
shall pay to Services Provider the actual direct costs incurred up to the time
of termination. However, Services Provider’s charge shall never exceed the
price specified in this Agreement. Services Provider shall not be entitled to
any other compensation. In the event of Ericsson’s termination under Article
36.2 above, Services Provider shall be entitled to pro rata payment for the
Solution performed up to the day of termination of the Agreement or part of
it.
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35.7 Termination of this Agreement for any cause shall not release either party
hereto from any liability which at the time of termination has already accrued
to the other party hereto or which thereafter may accrue in respect to any act
or omission prior to termination.
35.8 Provisions contained in this Agreement that are expressed or by their sense
and context are intended to survive the termination of this Agreement, shall
so survive the termination.
36 ENTIRE AGREEMENT
This Agreement sets forth and shall constitute the entire agreement between
Ericsson and Services Provider with respect to the subject matter hereof,
and shall supersede any and all prior agreements, understandings, promises
and representations made by one Party to the other concerning the subject
matter.
37 ASSIGNMENT
37.1 Neither Party shall have the right to assign this Agreement or any right
herein without the prior written consent of the other Party. Such consent
shall not be unreasonably withheld. Notwithstanding this, Ericsson shall
always be entitled to assign this Agreement to another Ericsson Company
38 NOTICES
38.1 All notices required by this Agreement shall be furnished by hand delivery,
certified post, telex, or telefax to the following addresses:
38.2 Either Party may change its address by a notice to the other Party in the
manner set forth above.
39 LANGUAGE
39.1 The English language in which this Agreement is written shall be the
language to be used in all documents and correspondence related to the
execution of this Agreement.
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40.1 For all legal and contractual purposes, the Parties set their domicile in
Santiago and are subject to the jurisdiction of the ordinary courts with seat
and jurisdiction in the borough of Santiago. This Agreement shall be
governed by, and construed in accordance with, the laws of the Republic of
Chile.
41 ARBITRATION
41.1 Any difficulty or controversy arising among the parties to the contract with
respect to the application, interpretation, duration, validity or execution of the
contract, or for any other reason, shall be submitted to arbitration pursuant to
the Rules of Arbitration Procedure of the Santiago Arbitration and Mediation
Center in effect at the time of its initiation.
41.2 The parties confer an irrevocable special power of attorney upon the
Santiago Chamber of Commerce so that it may, at the written request of any
of the parties, appoint an arbitrator from among the members of the
arbitration corps of the Santiago Arbitration and Mediation Center, who will
be empowered to act as arbitrator-at-law with regard to the substance of the
dispute and as ex aequo et bono with regard to the procedure.
41.3 There shall be no remedy against the arbitrator's resolutions. The arbitrator
is especially empowered to resolve any matter relating to his/her
competence and/or jurisdiction.
42.1 Services Provider is responsible for obtaining and maintaining any export
license(s) required for delivery of the Services to Ericsson and/or End
Customer.
42.3 Services Provider shall inform of and issue all documentation which may be
required by law, regulation or reasonably requested by Ericsson regarding
the export, import or re-export of the Services. In particular, Services
Provider is responsible to continuously provide detailed technical
documentation, certificate of origin and the so called export control
commodity number (the “ECCN code”) for the Services according to the US
export administration regulations, or the corresponding data according to
other applicable regulations. This information shall be updated on an
ongoing basis when updates of the software are provided or when new
regulations come into effect.
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42.4 The information requested by Ericsson in accordance with Article 43.4 shall
be provided by Services Provider within one (1) calendar week from the
request. The first relevant ECCN codes shall be provided within seven (7)
days after the Effective Date.
43.1 The United Nations Convention on Contracts for the International Sale of
Goods shall not apply to this Agreement.
44 COPIES OF AGREEMENT
This Agreement has been duly signed by the Parties in two originals and the
Parties have taken one each.
By ................... By ....................
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