Moe Contract For Schools Infrastructure Network

CONFIDENTIAL Dept of Schools/Schools Network Infrastructure MOE/EGOV/DS/001-9/2004 AGC/SG/draft: 22/3/05

CONTRACT Between THE GOVERNMENT OF HIS MAJESTY THE SULTAN AND YANG DIPERTUAN OF BRUNEI DARUSSALAM Represented by the Ministry of Education And [

] For

The Supply, Delivery, Installation, Testing, Commissioning and Maintenance of Schools Network Infrastructure for Government Primary, Secondary and Religious Schools, Ministry of Education (Phase I, II & III) (MOE/EGOV/DS/001-9/2004)

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CONFIDENTIAL Dept of Schools/Schools Network Infrastructure MOE/EGOV/DS/001-9/2004 AGC/SG/draft: 22/3/05

Table of Contents 1.

DEFINITIONS AND INTERPRETATION

2.

SCOPE OF PROJECT

3.

CHANGE CONTROL

4.

GOVERNMENT’S RESPONSIBILITIES

5.

PROGRESS MEETINGS

6.

CONTRACT PRICE AND MAINTENANCE CHARGES/TECHNICAL SUPPORT FEE

7.

HARDWARE

8.

SOFTWARE

9.

IMPLEMENTATION PLAN AND DELAYS

10.

INSTALLATION TESTS

11.

ACCEPTANCE TESTS

12.

WARRANTIES

13.

DEFECTS WARRANTY

14.

MAINTENANCE AND SUPPORT

15.

PERFORMANCE BOND

16.

LIABILITY

17.

INTELLECTUAL PROPERTY RIGHTS INDEMNITY

18.

CONFIDENTIALITY

19.

PERSONNEL

20.

GIFTS

21.

TERMINATION

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22.

FORCE MAJEURE

23.

NOTICES

24.

SPARE PARTS

25.

WAIVER

26.

SEVERABILITY

27.

ENTIRE CONTRACT

28.

DISPUTE RESOLUTION

29.

AMENDMENTS AND VARIATIONS

30.

ASSIGNMENT AND SUB-CONTRACT

31.

GOVERNING LAW

SCHEDULE A:

LIST OF HARDWARE, SOFTWARE, AND SERVICES

SCHEDULE B:

CONTRACT SPECIFICATIONS

SCHEDULE C:

PAYMENT SCHEDULE

SCHEDULE D:

ACCEPTANCE CERTIFICATE

SCHEDULE E:

IMPLEMENTATION PLAN

SCHEDULE F:

SCHEDULE OF SPARE PARTS

SCHEDULE G:

HARDWARE SUPPORT AGREEMENT

AND

MAINTENANCE

SCHEDULE H:

SOFTWARE LICENCE SUPPORT AGREEMENT

AND

MAINTENANCE

SCHEDULE I:

PERFORMANCE BOND

SCHEDULE J:

KEY PERSONNEL

SCHEDULE K:

DOCUMENTATION

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CONFIDENTIAL Dept of Schools/Schools Network Infrastructure MOE/EGOV/DS/001-9/2004 AGC/SG/draft: 22/3/05

SCHEDULE L:

TRAINING AND RELATED SERVICES

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CONFIDENTIAL Dept of Schools/Schools Network Infrastructure MOE/EGOV/DS/001-9/2004 AGC/SG/draft: 22/3/05

THIS CONTRACT is made on the

day of

2007

BETWEEN THE GOVERNMENT OF HIS MAJESTY THE SULTAN AND YANG DIPERTUAN OF BRUNEI DARUSSALAM, represented by the Ministry of Education, ____________ Brunei Darussalam (hereinafter referred to as the “Government”) AND [

] (hereinafter referred to as the “Contractor”).

WHEREAS: A.

The Government has invited tenders for the Supply, Delivery, Installation, Testing, Commissioning and Maintenance of Schools Network Infrastructure for Government Primary, Secondary and Religious Schools, Ministry of Education, Brunei Darussalam (Phase I, II & III) (hereinafter referred to as “the Project”).

B.

The Contractor has bid for and its tender for the Project has been accepted by the Government.

C.

The parties are now desirous of documenting the terms upon which the Project shall be implemented.

NOW IT IS AGREED as follows: 1. DEFINITIONS AND INTERPRETATION 1.1

In this Contract unless inconsistent with the context or otherwise specified the following definitions shall apply: 1.1.1

“Acceptance Date” means the date on which the System is accepted by the Government pursuant to Clause 11;

1.1.2

“Acceptance Tests” means the tests described in Clause 11;

1.1.3

“Contract” means these terms and the Schedules to them;

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1.1.4

“Commissioning” means all the work to be carried out to put the System into operational use (including the transfer and conversion of data after completion of the Acceptance Tests);

1.1.5

“Contract Price” means the total price payable for the Project as specified in Schedule C;

1.1.6

“Delivery” means when the delivery of an item of the Hardware, Software or Documentation to the Site has been made and, as regards Hardware and Software, successfully installed;

1.1.7

“Documentation” means the Project Deliverables, Project Reference Materials, Software Documentation, Hardware Documentation, Implementation and Related Services Documentation and Operations and Maintenance Services Documentation specified in Section 2 – Specifications in the Invitation To Tender [and in Schedule K];

1.1.8

“Government Equipment” means the equipment, communications links, computer programs, apparatus, materials and other items (other than the System) existing or available at the Site for use in association with the System;

1.1.9

“Government Requirements” means the specification of the System describing the intended functions and facilities for the System and the performance criteria of the System as set out in the Section 2- Specifications in the Invitation To Tender [and in the Contract Specifications attached as Schedule B];

1.1.10 “Hardware” means those computer hardware, other peripherals and ancillary equipment to be supplied by the Contractor as part of the System (including computer tables and chairs) as specified in Section 2- Specifications in the Invitation To Tender [and listed in Schedules A and B]; 1.1.11 “Invitation to Tender” means the Tender documents issued by the Government for the Project; 1.1.12 “Implementation Plan” means the plan detailing the implementation, activities and timetable for the Project as set out in Section 2- Specifications in the Invitation To Tender [and in Schedule E] as amended from time to time in accordance with this Contract; 1.1.13 “Milestone” means, as regards any of the Contractor’s obligations to deliver any of the Hardware, Software or Documentation or to

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perform any of the Project, the relevant date or stage set out in the Implementation Plan and/or any other Schedule concerned; 1.1.14 “MOE” means the Ministry of Education; 1.1.15 “Operating Software” means the computer programs and associated documentation supplied by a manufacturer in connection with the operation of a Hardware item; 1.1.16 “Other Software” means the computer programs referred to in Clause 8.2 and specified in Section 2- Specifications in the Invitation To Tender [and Schedule B]; 1.1.17 “Phase” means a phase or stage of the Project as specified in the Implementation Plan; 1.1.18 “Project” means the System to be supplied and all services and other items to be provided by the Contractor under this Contract; 1.1.19 “Ready for Use” means the System delivered, installed and accepted in accordance with Clause 11; 1.1.20 “Site” means the sites where the Hardware, Software and System or parts of it shall be installed and operated; 1.1.21 “Software” means the Operating Software and Other Software to be supplied by the Contractor for use on the Hardware; 1.1.22 “Services” means the services to be provided by the Contractor under this Contract; 1.1.23 “Standard Coverage Hours” means the hours between 7.45 am and 5.00 pm. each day excluding Fridays, Sundays and Brunei Darussalam public holidays; 1.1.24 “System” means the Schools Network Infrastructure System for Government Primary, Secondary and Religious Schools, Ministry of Education, Brunei Darussalam (Phase I, II & III) formed by the combination of the Hardware and Software; 1.1.25 “System Support” means the maintenance and support services to be provided by the Contractor in accordance with Clause 14; 1.1.26 “System Support Period” means the period specified in Clause 14 during which the Contractor shall provide the System Support;

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1.1.27 “Training” means the training to be provided by the Contractor as specified in Section 2- Specifications in the Invitation To Tender [and Schedule L] (which shall include such topics as system failure diagnosis, scheduled downtime tests and start up tests). 1.2

References herein to Clauses and Schedules are to clauses in and schedules to this Contract.

1.3

The Schedules to this Contract shall be deemed to form part of this Contract.

1.4

The headings to the Clauses and Schedules are inserted for ease of reference only and shall not affect the interpretation and construction of this Contract.

1.5 Unless the context requires otherwise, words importing the singular include the plural and vice versa, words importing gender include every gender and words denoting person shall include a natural person, company, firm, unincorporated association or any other legal entity whether acting as trustee or not.

2.

1.6

Any reference to a working day shall mean a reference to any day other than a Friday and Sunday or a gazetted public holiday in Brunei Darussalam and any reference to a month or year shall mean a month or year reckoned according to the Gregorian calendar.

1.7

Any reference to a party in this Contract includes a reference to his successors and permitted assigns.

1.8

Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.

SCOPE OF PROJECT 2.1

The Contractor agrees as prime contractor to supply to the Government the System which comprises an integrated computer system and meets the Government Requirements in accordance with and subject to the terms of this Contract.

2.2

In particular, but without limiting the generality of Clause 2.1, the Contractor shall:

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2.2.1

provide the implementation and related services, the project management services and the post-implementation services all as specified in Government Requirements;

2.2.2

where necessary, carry out site preparation for the System in accordance with the Government Requirements;

2.2.3

deliver and install the Hardware and Software at the Site in accordance with this Contract;

2.2.4

carry out installation tests of the Hardware and Operating Software in accordance with Clause 10;

2.2.5

assist the Government during the period of the Acceptance Tests in accordance with Clause 11;

2.2.6

sell the Hardware to the Government free from incumbrances;

2.2.7

grant to the Government, and in the case of any third party software procure the grant to the Government of non-exclusive licences on the terms specified in Clause 8 to use the Software and Documentation as part of the System;

2.2.8

supply the Documentation;

2.2.9

provide training and other related services in accordance with Section 2 – Specification in the Invitation To Tender [and the training plan set out in Schedule L]; and

2.2.10 provide support and maintenance in accordance with Clause 14. 2.3

The Contractor acknowledges that it has been supplied with sufficient information about the Government Requirements and that it has made all appropriate enquiries to enable it to undertake the Project in accordance with this Contract. The Contractor shall neither be entitled to any additional payment nor excused from any obligation or liability under this Contract because of any misinterpretation by the Contractor of any fact relating to the functions, facilities and capabilities of the System or any part of it as specified in the Government Requirements. The Contractor shall promptly bring the attention of the Government’s project representative any matter which is not adequately specified or defined in the Government Requirements and any other relevant specification or document.

2.4 The Contractor undertakes to carry out the Project with reasonable care and skill using appropriately qualified and experienced persons.

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CONFIDENTIAL Dept of Schools/Schools Network Infrastructure MOE/EGOV/DS/001-9/2004 AGC/SG/draft: 22/3/05

2.5 In the performance of this Contract, the Contractor shall at its own expense within a reasonable period of time, clear away and remove from the Site all surplus materials, rubbish and work of every kind and leave the whole of the Site clean and in workmanlike condition. 3

CHANGE CONTROL 3.1

At any time prior to the Acceptance Date the Contractor may in writing recommend and the Government may in writing request from time to time changes to any part of the Project.

3.2

The Contractor shall notify the Government in writing within five (5) working days of receipt of the change request or the making of the change recommendation of the time and cost needed to investigate the implications for this Contract of implementing the proposed change. The investigation shall be carried out only on the Government’s prior written instruction.

3.3

Following the investigation (if any) the Contractor shall give a written quotation or estimate (valid for not less than thirty (30) days from the date it is given to the Government) showing the increase or decrease in the Contract Price and any related effect on other contract matters, including the Implementation Plan and payment Schedule, should the proposed change be implemented. The Contractor shall use all reasonable endeavours to ensure that its quotation or estimate is given within ten (10) working days (or such longer period as may be agreed) of receipt by the Contractor of a written instruction to investigate the implications of the proposed change.

3.4 Should the Government wish to proceed with the proposed change, it shall instruct the Contractor in writing of its wish as soon as reasonably practicable after receipt of the written quotation but not later than ten (10) working days (or such longer period as may be agreed) of receipt of the written quotation or estimate. Those parts of this Contract affected by the change shall then be deemed to be modified accordingly. The Contractor shall as soon as reasonably practicable incorporate the change in the Implementation Plan and in any other documentation where the change calls for modification and shall give revised copies of the Implementation Plan and documentation to the Government. 3.5 Until any change is formally agreed between the Contractor and the Government the Contractor shall continue to perform and be paid for the Project as if the change had not been proposed.

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GOVERNMENT’S RESPONSIBILITES 4.1 The Government shall provide the Contractor with such information as it may reasonably need concerning the Government’s operations and answers to queries, decisions and approvals which may be reasonably necessary for the Contractor to undertake the Project. The Government is responsible for ensuring that such information and answers are accurate and complete. The Contractor shall, to the extent reasonably practicable, give the Government reasonable prior notice of any information or answers it requires in accordance with this Clause 4.1 and shall notify the Government promptly in writing if it considers the Government to have failed to provide information or answers in accordance with this Clause 4.1 or if it has reason to suspect that any such information is inaccurate or incomplete. 4.2 The Government shall provide the following facilities to authorised personnel of the Contractor throughout the Government’s normal business hours and at such other times as the Government authorities after reasonable prior notice from the Contractor (such authorisation not to be unreasonably withheld or delayed): 4.2.1

access to and use of the Government Equipment;

4.2.2

access to the Government’s employees, the Hardware and the Site;

4.2.3

all electric power, lighting, air conditioning reasonably needed by the Contractor to perform the Project (and the Contractor warrants that it has informed the Government of all such needs so far as reasonably practicable prior to the date of signature of this Contract);

4.3 The Government is responsible for ensuring that the Government Equipment is properly installed and is sufficient and suitable for its purpose and that any adjustments which may be required are carried out expeditiously. The Contractor shall be responsible for integrating the System to the Government Equipment. 5

PROGRESS MEETINGS 5.1

Each party shall appoint a senior member of its staff (“the Project Representative”) to act as the principal point of contact for the purposes of the Project.

5.2

The Contractors shall prepare written progress reports at such frequencies as shall be agreed from time to time.

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CONFIDENTIAL Dept of Schools/Schools Network Infrastructure MOE/EGOV/DS/001-9/2004 AGC/SG/draft: 22/3/05

5.3 Progress meetings to discuss progress reports and other relevant issues shall be held weekly or at such other frequencies as agreed by the parties. Minutes of these meetings shall be taken by the Contractor and sent to the Government within five (5) working days of the meeting for the Government’s approval. Only minutes so approved shall be treated as an accurate record of such meetings. 6

CONTRACT PRICE AND MAINTENANCE CHARGES/TECHNICAL SUPPORT FEE Contract Price 6.1 The amounts, method and timing of payment of the Contract Price shall be in accordance with Schedule C. 6.2

The Contract Price for the Project is firm and fixed and shall not be subject to any increase except those increases expressly agreed by the Government in writing in accordance with this Contract.

6.3

Where the Government requests and the Contractor agrees to perform services relating to the Project which are not part of the Contract Price then those services shall be chargeable on a time and materials basis at the Contractor’s then current standard fee rates unless otherwise agreed.

6.4

The Contractor shall on request promptly supply the Government with all information needed to check the calculation of prices and shall in particular indicate all unit prices requested by the Government.

6.5

Where the Contract provides for stage payments of the Contract Price on the occurrence of specific events or dates, payment shall fall due on the scheduled dates upon the Contractor complying with the conditions specified for each payment.

Maintenance Charges and Technical/Maintenance Support Fee 6.6 The Contractor shall pay the Maintenance Charges and Technical/Maintenance Support Fee quarterly in arrears in the amount and manner specified in Schedule C 6.7

All claims for payment pursuant to Clause 6.6 must be supported by the relevant invoice and Maintenance Services Report (and duly verified and certified by the Government or its authorized representative). The invoice shall include the Contract Reference Number.

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6.8

7

8

9

The Maintenance Charges and Technical/Maintenance Support Fee shall be fixed and firm throughout the System Support Period [and are inclusive of cost of Spare Parts (as defined in Clause 24)], any travel, subsistence and other out-of- pocket expenses incurred by the Contractor in respect of the provision of System Support.

HARDWARE 7.1

The Contractor shall be responsible at its own cost for the Delivery and off-loading of the Hardware at the Government’s premises where the Site is located and its transfer to and installation at the Site.

7.2

Risk in and title to each item of the Hardware shall pass to the Government on payment in full of that part of the Contract Price attributable to that item.

SOFTWARE 8.1

The Contractor shall be responsible for providing and installing the Software on the Hardware at the Site.

8.2

As regards the Software supplied under this Contract over which the Contractor or any third party holds title or other rights, the Contractor shall obtain for the Government the non-exclusive right to use that Software in the operation of the System.

8.3

Risk in the media on which the Software is recorded shall pass to the Government on Delivery at the Site.

IMPLEMENTATION PLAN AND DELAYS 9.1

The Contractors shall use all reasonable endeavours to achieve completion of each Phase of the Project by the relevant Milestone in the Implementation Plan.

9.2

If the Contractor: 9.2.1

fails to provide the System Ready for Use by the Milestone for such stage, or

9.2.2

fails to deliver and install the Hardware and/or Software by the Milestone for such stage; or

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9.2.3

fails to supply the Documentation by the Milestone for such stage; or

9.2.4

fails to provide the training and other related services mentioned in Clause 2.2.11 by the Milestone for such stage;

(hereinafter collectively referred to as the “Contract Obligations” and individually as “Contract Obligations”) then the Contractor shall pay liquidated damages to the Government for the delay during the period beginning on the Milestone date and ending on the date on which the Contract Obligation is actually performed. The liquidated damages shall be payable for each week or part week of delay of a sum equal to one percent (1%) of the Contract Price in respect of the delayed Contract Obligation. Subject to Clause 9.3 the payment of liquidated damages shall be in full satisfaction of the Contractor’s liability for such period of delay but such payments shall not relieve the Contractor from its obligation to provide the System Ready for Use or from any other liability or obligation under this Contract. 9.3

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11

If the System is not Ready For Use within eight (8) weeks after its Milestone date then the Government may terminate this Contract with immediate effect on giving written notice to the Contractor. Such termination shall not affect the Government’s right to payments under Clause 9.2 and shall be without prejudice to any right to recover money previously paid to the Contractor under this Contract.

INSTALLATION TESTS 10.1

Following installation of the Hardware at the Site the Contractor shall submit the Hardware and Operating Software to the standard installation tests of the manufacturers or suppliers concerned to ensure that the Hardware and Operating Software are in working order and ready for Acceptance Tests.

10.2

The Contractor shall supply the Government with copies of the test specification and results of the installation tests before the Acceptance Tests begin.

ACCEPTANCE TESTS 11.1

The Contractor shall prepare an acceptance test specification which is suitable to demonstrate that the System complies with and performs in accordance with the Government Requirements and the provisions in

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Section 2- Specifications in the Invitation To Tender. Such work shall be carried out by the Contractor in accordance with the Implementation Plan. The Contractor shall, at least one month prior to the date of the carrying out of the Acceptance Test, submit to the Government such test criteria and procedures for the acceptance of the System (“the Acceptance Specification”) for approval by the Government. If in the reasonable opinion of the Government the Acceptance Specification does not provide sufficient details to test all the functions and capabilities of the System, the Contractor shall make the amendments as requested by the Government. 11.2

When the relevant part of the System is ready for the Acceptance Tests the Government shall undertake the Acceptance Tests in accordance with the Acceptance Specification and the Implementation Plan using test date data and expected results prepared by the Government. The Contractor shall provide all labour, materials, simulation and other special tools, test equipment, transportation and documentation to complete the Acceptance Tests.

11.3

The Contractor shall have up to two (2) suitably experienced personnel involved with the supply of the System available on call at the Government’s request to attend the Site to assist the Government and provide advice on matters relating to the conduct of the Acceptance Tests. Such assistance shall be included within the Contract Price.

11.4

The Government shall supply a sufficient number of suitably qualified persons to check the results of each stage of the Acceptance Tests against the Acceptance Specification. The Government shall appoint a representative who shall co-operate and liaise with the Contractor in all matters pertaining to the Acceptance Tests.

11.5

The Contractor shall prepare two (2) copies of a Test Report as soon as possible after the completion of each test, regardless of whether the test was witnessed by the Government Representative. If the Government Representative has witnessed the test, he shall countersign the Test Report to indicate his agreement. If the Government Representative has not witnessed the test, but the results and readings are satisfactory, he shall return one copy of the Test Report to the Contractor with a notification in writing indicating his agreement with the tests and with the results and readings.

11.6

If any part of the System fails to pass its applicable Acceptance Tests the Contractor shall be given such time and facilities as are reasonable in all the circumstances to rectify such part of the System and repeat those tests applying to such part within a reasonable time (and at the expense of the Contractor) but in any event not later than fourteen (14) days after the failure to pass its applicable tests. The Contractor shall not be required to

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repeat any tests in respect of those parts of the System which have successfully completed the Acceptance Tests applicable to them. 11.7

If the System or any part of it being tested fails to pass its applicable Acceptance Tests after two (2) repeat Acceptance Tests are conducted in accordance with Clause 11.6, then the Government may by written notice to the Contractor elect at its option: 11.7.1 to require the Contractor to provide at no extra charge to the Government such additional services and replacement items as shall enable the System or part thereof to pass the Acceptance Tests within a reasonable time and in any event within twenty eight (28) days of such notice; or 11.7.2 to accept the System or part thereof with an abatement of the Contract Price (the abatement being such amount as, taking into account the circumstances, is reasonable).

11.8 Failing the System passing the Acceptance Tests or written agreement as to abatement, in each case within twenty eight (28) days after the date of such notice, the Government may reject the entire System as not being in conformity with this Contract, in which case the Government may terminate this Contract at any time after rejection on written notice with immediate effect. 11.9 On rejection under Clause 11.8 the risk in the System shall pass to the Contractor. The Contractor shall as soon as reasonably practicable after rejection disinstall and remove the rejected System. 11.10 The issue of any interim acceptance certificate on successful completion of the Acceptance Tests for any particular part of the System shall not affect the Government’s right to reject any accepted part if any later part of the System fails to pass the Acceptance Tests and the Government cannot use the accepted part because of such failure. 11.11 Acceptance of the System will occur on the date of successful completion of all stages of the Acceptance Tests as acknowledged by the Government signing an acceptance certificate (“the Acceptance Certificate) in the form set out in Schedule D. 11

WARRANTIES 12.1The Contractor warrants and undertakes:

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12.1.1 that it is not aware as at the date of this Contract of anything within its reasonable control which might or shall adversely affect its ability to perform its obligations under this Contract; 12.1.2 that the import, supply and installation of the System shall not infringe any laws of any country; 12.1.3 that as at the date of signature of this Contract: 12.1.3.1

each individual element of the System shall be compatible with all other elements of the System and shall work properly in combination with each other as an integrated system;

12.1.3.2the System shall be compatible with the Government Equipment and each shall operate properly in conjunction with each other; 12.1.3.3the Hardware shall run the Software; 12.1.3.4the design of the System shall be suitable to fulfil the Government Requirements and the System shall perform and function in accordance with the Government Requirements and the performance standards; 12.1.3.5the installation of the System shall be free from defects in workmanship; 12.1.4 that the Documentation and training provided pursuant to Clauses 2.2.10 and 2.2.11 shall enable suitably qualified personnel of the Government to make proper use of the System. 13.

DEFECTS WARRANTY 13.1Subject as provided below the Contractor warrants and undertakes, to rectify within a reasonable period of time by repair, or at the Contractor’s option by supply of a replacement, without charge to the Government, any Defect which under proper use, care and maintenance appears in the System (‘the Defects Warranty’). For the purposes of this Clause 13 a “Defect” means any non-conformance with the warranties specified in Clauses 12.1.3.1 to 12.1.3.5 inclusive.

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13.2The Defects Warranty period (“the Defect Warranty Period”) for the System shall commence on their respective Acceptance Date and shall last for twelve (12) calendar months. 13.3The Contractor’s obligations under the Defects Warranty are contingent upon the Contractor being given, without delay and free of charge, full details of the Defect and adequate time and access to the System during the Contractor’s normal working hours to rectify such Defect. If the Contractor rectifies the Defect within a reasonable period of time then the Contractor shall have no other liability of any kind in respect of or arising from such Defect. 13.4The Contractor shall not be responsible for any problem arising from or caused by any modification (whether by alteration, deletion, addition or otherwise) made to the System or any part of it by persons other than the Contractor without its express prior written consent. The Government shall not permit any modification to be made to the System or any part of it during the Defects Warranty Period by persons other than the Contractor and its authorised representatives without the Contractor’s prior written consent. If any unauthorised modification is made then, without prejudice to the Contractor’s other rights and remedies, the Defects Warranty shall be null and void. 13.5

The Contractor shall, without charge to the Government, provide the Government with a functionally equivalent equipment (“Loan Equipment”): 13.5.1 if the Contractor cannot repair a faulty or defective Hardware within twenty four (24) hours of its service engineer or technician (as the case may be) arriving at the Site; or 13.5.2 if the Contractor determines that it is necessary to move a Hardware or part thereof (“the Removed Equipment”) to the Contractor’s premises in order to repair or service the Hardware or part thereof and as a consequence the Hardware cannot be used by the Government.

13.7

On receipt of a request by the Government for the Contractor’s services pursuant to this Clause 13, the Contractor shall despatch a suitably qualified service engineer or technician (as the case may be) to the Site within two (2) hours of receipt of such request. If there is a need for the Contractor to perform the services outside the Standard Coverage Hours, the Contractor shall do so without additional charge to the Government.

13.8

If the Contractor rectifies a defect in the System or otherwise substitutes or modifies a component of the System in accordance with this Contract

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prior to the expiry of the Defects Warranty Period, it shall within fourteen (14) days of such correction, substitution or modification ensure thay any consequential amendments to the Documentation are implemented and are supplied to the Government. Final Payment 13.9

14.

15.

Upon the date of expiry of the Defects Warranty Period and provided the Contractor has rectified all Defects in accordance with the provisions of and within the time specified in this Contract, the Government shall pay the Contractor the remaining ten percent (10%) of the Contract Price

MAINTENANCE AND SUPPORT 14.1

Following the expiry of the Defects Warranty Period pursuant to Clause 13, the Contractor shall provide maintenance of the Hardware and support for the Software (collectively “System Support”) in accordance with the Hardware Maintenance Agreement at Schedule G and the Software Licence and Maintenance Support Agreement at Schedule H. The Contractor shall provide System Support for a period of __________(__) years commencing from the date of expiry of Defects Warranty Period (“System Support Period”).

14.2

The charges for the System Support are as set out in Schedule C.

PERFORMANCE BOND 15.1As security for the due performance of the Contractor’s obligations under this Contract, the Contractor shall within ten (10) working days from the date of signing of this Contract furnish or deposit with the Government a Performance Bond in favour of the Government for an amount equal to ten percent (10%) of the Contract Price. The Performance Bond shall be issued by a reputable bank in Brunei Darussalam acceptable to the Government and shall be in the form provided in Schedule I. 15.2The proceeds of the Performance Bond shall be payable to or may be taken by the Government in deduction of any sum(s) that are or may become payable by the Contractor to the Government or for which the Contractor is or may become liable to the Government under this Contract or as compensation for the Contractor’s breach of any term of this Contract or failure to complete or fulfil any of its obligations under this Contract. 15.3The Government’s rights under Clause 15.2 shall be without prejudice and in addition to the Government’s right to claim further damages (including

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damages for consequential loss) without limitation and/or equitable remedies against the Contractor for any breach or failure by the Contractor as aforesaid. 15.4The Performance Bond shall be maintained by the Contractor at its full amount until the expiry of six (6) months after the expiration of the last Defects Warranty Period in Clause 13. Upon the expiry of the Performance Bond, the Government shall return the Performance Bond to the Contractor for cancellation. 15.5If at any time during the term of this Contract, any sum(s) shall be taken or deducted by the Government from the Performance Bond, the Contractor shall immediately arrange to replace or restore the Performance Bond to its full amount. 15.6If the Contractor fails to furnish the Performance Bond to the Government within the time stipulated in Clause 15.1, the Government shall be entitled by notice in writing to the Contractor to forthwith terminate this Contract. 16 LIABILITY 16.1The Contractor shall indemnify the Government for any personal injury or death caused by the negligence of its employees in connection with the performance of its duties and obligations under this Contract, or by defects in any Hardware, Software, or services supplied pursuant to this Contract. 16.2The Contractor shall indemnify the Government for direct damage to tangible property caused by the negligence of its employees in connection with the performance of their duties and obligations under this Contract. 17 INTELLECTUAL PROPERTY RIGHTS INDEMNITY 17.1The Contractor shall indemnify the Government and keep the Government fully and effectively indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature incurred by the Government to the extent the System, Hardware and/or Software as used in accordance with the Government Requirements infringes the intellectual property rights (including without limitation any patent, copyright, registered design, design right or trademark) of any third party in respect of the System, Hardware and/or Software subject to the following conditions: 17.1.1 the Government shall promptly notify the Contractor in writing of any allegations of infringement of which it has notice and will not make any admission without the Contractor’s prior written consent

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nor take any step which would prejudice the Contractor’s defence of the claim; 17.1.2 the Government, at the Contractor’s request and expense, shall allow the Contractor (subject to Clause 17.1.3 below) to conduct and/or settle all negotiations and litigation resulting from such claim; 17.1.3 the conduct by the Contractor of any such negotiations or litigation shall be conditional upon the Contractor: 17.1.3.1giving to the Government such reasonable security as shall from time to time be required by the Government to cover the amount ascertained or agreed or estimated, as the case may be, of any compensation, damages, expenses and costs for which the Government may be liable; and 17.1.3.2taking over such conduct within a reasonable time after being notified of the claim in question; 17.1.4 the Government shall, at the request of the Contractor, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by the Contractor for any reasonable out of pocket expenses incurred in so doing. 17.2The indemnity given under Clause 17.1 above will not apply to infringement arising out of the use of the System, Hardware and/or Software or any part thereof in combination with any equipment and computer program not supplied or approved by the Contractor for use with System, Hardware or Software or by reason of any modification or alteration made to the System, Hardware or Software other than by the Contractor or with the Contractor’s prior written consent. 17.3If the Government’s normal use or possession of the System, Hardware or Software is held by a court of competent jurisdiction to constitute an infringement of a third party’s intellectual property rights or if the Contractor is advised by legal counsel that such use or possession is likely to constitute such an infringement then the Contractor shall promptly and at its own expense: 17.3.1 procure for the Government the right to continue using and possessing the System, Hardware or Software; or 17.3.2 modify or replace the System, Hardware or Software (without detracting from its overall performance) so as to avoid the infringement (in which event the Contractor shall compensate the

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Government for the amount of any direct loss and/or damage sustained or incurred by the Government by reason of such modification or replacement); or 17.3.3 if the provisions in Clauses 17.3.1 and 17.3.2 above cannot be accomplished on reasonable terms, remove the System, Hardware or Software and refund the Contract Price to the Government. 18 CONFIDENTIALITY 18.1

The Contractor shall keep confidential all information, whether written or verbal, relating to this Contract or concerning the business affairs of the Government that it may obtain or receive as a result of or in the course of the discussions leading up to the execution of this Contract and/or the performance of its obligations under this Contract, save insofar as such information is already in the public domain.

18.2

The Contractor shall disclose such confidential information to only such of its employees, agents and/or sub-contractors who have a reasonable need to know of the same to enable the Contractor to perform its obligations under this Contract, or if required by any applicable laws or regulations.

18.3

The Contractor shall take all such steps as are necessary to ensure that all of its employees, agents and/or sub-contractors to whom such confidential information is disclosed are made aware of the confidential nature thereof and keep the same confidential at all times.

18.5

For the avoidance of doubt, the provisions of this Clause 18 shall survive the termination or expiration of this Contract.

19 PERSONNEL 19.1

The Contractor use all reasonable endeavours to maintain continuity in respect of the key personnel listed in Schedule J (“the Key Personnel”) for the duration of the Project. The Contractor shall not substitute any Key Personnel (unless such Key Personnel are unable to continue on the Project for reasons such as illness, holidays or termination of employment with the Contractor) except with the Government’s prior written consent which shall not be unreasonably withheld or delayed.

19.2

The Government may require the Contractor to replace any person assigned by the Contractor to the Project if the Government reasonably considers the performance of that person is unacceptable or his attitude is

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incompatible with the success of the Project or good personnel relations within the Government’s organisation. 19.3

The Contractor shall ensure that all personnel of itself and its SubContractors comply with all relevant safety security and on site regulations specified in writing from time to time by the Government for personnel working on the Government’s premises.

20 GIFTS The Government shall be entitled to terminate this Contract and recover from the Contractor the amount of any loss resulting from such termination, if the Contractor shall have offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of this Contract with the Government, or for showing or forbearing to show favour or disfavour to any person in relation to this Contract or any other contract with the Government or the like acts shall have been done by any person employed by the Contractor or acting on its behalf (with or without the knowledge of the Contractor), or if, in relation to this Contract or any other contract with the Government, the Contractor or any person employed by the Contractor or acting on its behalf shall have committed or abetted to commit an offence under the Prevention of Corruption Act (Cap. 131) or section 161 to 165 or 213 to 215 of the Penal Code (Cap. 22). 21.

TERMINATION 21.1

Notwithstanding anything else contained in this Contract, this Contract may be terminated at any time: 21.1.1 by either party forthwith on giving written notice to the other if the other commits any material breach of any term of this Contract and (in the case of a breach capable of being remedied) shall have failed to have remedied such breach, within thirty (30) days of receiving a written notice requiring it to do so; or 21.1.2 by the Government if the Contractor shall have a receiver or administrative or Judicial Manager appointed of it or over any part of its undertaking or assets or shall pass a resolution for windingup (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Contractor shall become subject to an administration order or shall enter into

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any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or 21.1.3 pursuant to Clause 9, 11, 20 or 22 in the circumstances mentioned therein. 21.2

22.

Termination of this Contract shall not affect any rights of the parties accrued to them up to the date of termination.

FORCE MAJEURE 22.1

Neither party shall be liable for any delay in performing or failure to perform any of its obligations under this Contract caused by events beyond its reasonable control (“Force Majeure Event”). However any delay or failure by a sub-contractor of the Contractor shall not relieve the Contractor from liability for delay or failures except where the delay or failure is also beyond the reasonable control of the sub-contractor concerned.

22.2

The party claiming the Force Majeure Event shall promptly notify the other in writing of the reasons for the delay or stoppage (and the likely duration) and shall take all reasonable steps to overcome the delay or stoppage.

22.3

If the party claiming the Force Majeure Event has complied with Clause 22.2 its performance under this Contract shall be suspended for the period that the Force Majeure Event continues and the party shall have an extension of time for performance which is reasonable and in any event equal to the period of delay or stoppage. As regards such delay or stoppage: 22.3.1 any costs arising from the delay or stoppage shall be borne by the party incurring those costs; 22.3.2 either party may, if the delay or stoppage continues for more than thirty (30) continuous days, terminate this Contract with immediate effect on giving written notice to the other and neither party shall be liable to the other for such termination.

23.

NOTICES 23.1

Any notice given by one party to the other pursuant to this Contract shall be in writing and shall be sent by registered mail to the address of the

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intended addressee or facsimile transmission to the address and number as specified below: To the Government: [Insert details] Brunei Darussalam. Facsimile : To the Contractor:

Bandar Seri Begawan, Brunei Darussalam Facsimile :

23.2

Notices may be delivered personally by registered letter or facsimile transmission. Notices shall be deemed to have been received: 23.2.1 by hand delivery - at the time of delivery; 23.2.2 by registered post - 48 hours after the date of mailing; 23.2.3 by facsimile transmission-immediately on transmission provided a confirmatory copy is sent by registered post or by hand by the end of the next business day.

24.

SPARE PARTS 24.1

For the continued use and operation of the System and Hardware by the Government, the Contractor shall stock the spare parts specified in Schedule F (“Spare Parts).

24.2

If so requested by the Government to supply an item of Spare Parts or where an item of Spare Parts is required in the provision of the Maintenance Services by the Contractor, the Contractor shall deliver such item of Spare Parts to the Site within the time specified by the Government. The price of such Spare Parts shall be as stated in Schedule F.

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24.3

25.

The Contractor warrants to the Government that the Spare Parts supplied pursuant to this Clause 24 are free from defects of workmanship and materials and undertakes to replace any item of Spare Parts that is found to be defective within twelve (12) months of the date of delivery and installation, where such defects are a result of faulty materials or workmanship.]

WAIVER No delay or failure by either party to exercise any of its powers, rights or remedies under this Contract shall operate as a waiver of them nor shall any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver, to be effective, must be in writing. The remedies provided in this Contract are cumulative and not exclusive of any remedies provided by law.

26.

SEVERABILITY If any part of this Contract is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of this Contract which shall continue to be valid and enforceable to the fullest extent permitted by law.

27.

ENTIRE CONTRACT This Contract is the complete and exclusive statement of the contract between the parties relating to the subject matter of this Contract and supersedes all previous communications, representations and other arrangements, written or oral.

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DISPUTE RESOLUTION 28.1

The parties shall make every effort to amicably resolve, by direct informal negotiation, any disagreement or dispute arising between them pursuant to or in connection with this Contract.

28.2

If the parties are unable to amicably resolve any disagreement or dispute within thirty (30) days from the date when such disagreement or dispute arose, either party may require that the disagreement or dispute be referred for resolution by arbitration in accordance with the provision of the Arbitration Act (Chapter 173).

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29.

AMENDMENTS AND VARIATIONS No amendment or variation to this Contract shall be effective unless in writing and signed by both parties or their duly authorised representatives.

30.

ASSIGNMENT AND SUB-CONTRACT The Contractor shall not, without the written consent of the Government, subcontract, assign or transfer the Contract or the benefits or obligations or any part thereof to any other person, including any right of the Contractor to assign, either absolutely or by way of charge, any monies due or to become due to him, or which may become payable to him under the Contract. The Contractor shall be responsible for the acts, defaults, neglects or omissions of any assignee or subcontractor, their agents, servants or workmen as fully as if they were the acts, defaults, neglects or omissions of the Contractor, its agents, servants or workmen.

31.

GOVERNING LAW This Contract shall be construed in accordance with the governed by the law of Brunei Darussalam.

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IN WITNESS WHEREOF this Contract has been executed by the authorised representatives of the parties as the day and year first above written. For and on behalf of THE GOVERNMENT OF HIS MAJESTY THE SULTAN AND YANG DI-PERTUAN OF BRUNEI DARUSSALAM

………………………….…………………………………… [Name and Position] In the presence of

…………………………………………………………………………… [Name and Position] For and on behalf of [ ]

………………………………………………….… [Name and position]

In the presence of …………………………..…………………………. [Name and position]

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SCHEDULE A LIST OF HARDWARE, SOFTWARE, EQUIPMENT AND SERVICES [to be inserted after award of tender]

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SCHEDULE B CONTRACT SPECIFICATIONS [to be inserted after award of tender]

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SCHEDULE C PAYMENT SCHEDULE [to be inserted after award of tender]

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SCHEDULE D ACCEPTANCE CERTIFICATE [to be inserted after award of tender]

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SCHEDULE E IMPLEMENTATION PLAN [to be inserted after award of tender]

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SCHEDULE F SCHEDULE OF SPARE PARTS [to be inserted after award of tender]

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SCHEDULE G

HARDWARE SUPPORT AND MAINTENANCE TERMS

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Table of Contents

1.

Definitions and Interpretation

2.

Contractor’s Undertaking

3.

Duration of Maintenance

4.

Maintenance Charges

5.

Maintenance Services

6.

Government’s Obligations

7.

Contractor’s warranties

8.

Contractor’s Obligations

9.

Training

10.

Miscellaneous

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HARDWARE MAINTENNACE AND SUPPORT AGREEMENT 1.

Definitions and Interpretation 1.1

In this Agreement, unless the context otherwise requires, the following terms have the following meanings: 1.1.1

"Down Time" means the period starting from the Contractor's receipt of a notice from the Government requiring the Contractor to deliver and/or provide the Maintenance Services in respect of the Hardware until the rectification of the Hardware to normal working order, in conformity with the specifications in the Main Contract and/or restoration of database integrity;

1.1.2

“Government Requirements” has the same meaning as in the Main Contract;

1.1.3

"Hardware" has the same meaning as in the Main Contract;

1.1.4

"Main Contract" means the Contract Reference No. MOE/EGOV/DS/001-9/2004 entered into between the Contractor and Government on _______________ 2005 for the Supply, Delivery, Installation, Testing, Commissioning and Maintenance of Schools Network Infrastructure for Government Primary, Secondary and Religious Schools, Ministry of Education, Brunei Darussalam (Phase I, II & III);

1.1.5

"Maintenance Charges" means the charges payable by the Government to the Contractor as set out in Schedule C in the Main Contract;

1.1.6

"Maintenance Services" means the preventative and corrective maintenance services and mandatory engineering changes, as defined in Clause 4 below to be provided by the Contractor pursuant to this Agreement;

1.1.7

"Response Time" means the period starting from the Contractor's receipt of a notice from the Government requiring the Contractor to deliver and/or provide the Maintenance Services to the arrival and/or commencement of the Maintenance Services at the Site;

1.1.8

"Site" has the same meaning as in the Main Contract;

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1.1.9

“System” has the same meaning as in the Main Contract.

1.2

References herein to Clauses and Schedules are to clauses in and schedules to this Agreement.

1.3

The Schedules to this Agreement shall be deemed to form part of this Agreement.

1.4

The headings to the Clauses and Schedules are inserted for ease of reference only and shall not affect the interpretation and construction of this Agreement.

1.6 Unless the context requires otherwise, words importing the singular include the plural and vice versa, words importing gender include every gender and words denoting person shall include a natural person, company, firm, unincorporated association or any other legal entity whether acting as trustee or not. 1.6

2.

Any reference to a working day shall mean a reference to any day other than a Friday and Sunday or a gazetted public holiday in Brunei Darussalam and any reference to a month or year shall mean a month or year reckoned according to the Gregorian calendar.

Contractor’s Undertaking In consideration of the payment by the Government to the Contractor, of the Maintenance Charges in accordance with Clause 4, the Contractor hereby agrees to provide the Maintenance Services to the Government in accordance with the terms of this Agreement.

3.

4.

Duration of Maintenance 3.1

The Contractor shall provide the Maintenance Services in respect of the Hardware for a period of ____ (__) years commencing from the date of expiry of the Defects Warranty Period of the Hardware.

3.2

After the expiry of the aforesaid ______ (____) years maintenance period, this Agreement may be renewable annually thereafter, at the Government's option, on the same terms and conditions and/or on such revised conditions as may be expressly agreed to between the parties in writing.

Maintenance Charges

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5.

4.1

In consideration of the provision of the Maintenance Services, the Government shall pay the Maintenance Charges levied monthly in arrears by the Contractor according to the Main Contract.

4.2

The Maintenance Charges shall include all travel, accommodation and subsistence expenses for or in respect of the Contractor's employees (including the cost of time spent travelling) that may be incurred in the course of the provision of the Maintenance Services.

Maintenance Services 5.1

The Contractor shall appoint a suitably skilled customer service representatives to be responsible for the overall management of the Maintenance Services and the keeping of the Hardware in good working order in accordance with the terms of this Agreement.

5.2

The Maintenance Services shall comprise the provision by the Contractor at the Site of "Preventive Maintenance", "Corrective Maintenance" and "Mandatory Engineering Changes" (as respectively defined under Clauses 5.3, 5.4 and 5.5 below), in respect of each item of the Hardware at the Site.

5.3

Preventive Maintenance shall comprise:

5.4

5.3.1

the [monthly] inspection and testing by attendance at the Site by the Contractor of each item of Hardware in accordance with the Hardware manufacturer’s recommendations therefor; and

5.3.2

the carrying out by the Contractor of such repairs, replacement of parts, cleaning, lubrication or adjustment to each item of Hardware as the Contractor shall judge necessary as a result of said inspection and testing.

Corrective Maintenance shall comprise: 5.5.1

upon receipt of a notification that the Hardware or any part thereof are faulty or inoperative, the inspection and testing of the Hardware and diagnosing of any faults or defects therein by the Contractor (by attendance on site or remotely); and

5.5.2

the carrying out by the Contractor of such repairs, replacements of parts, cleaning, lubrication or adjustments as the Contractor shall judge necessary to remedy the said fault.

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5.5

Mandatory Engineering Changes shall comprise the implementation of such mandatory alterations, adjustments, additions or modifications to the Hardware as the Contractor shall from time to time prescribe.

Loan Equipment 5.6 The Contractor shall, without charge to the Government, provide the Government with a functionally equivalent equipment (“Loan Equipment”): 5.6.1

if the Contractor cannot repair a faulty or defective Hardware within six (6) hours of its service engineer or technician (as the case may be) arriving at the Site; or

5.6.2

if the Contractor determines that it is necessary to move a Hardware or part thereof (“the Removed Equipment”) to the Contractor’s premises in order to repair or service the Hardware or part thereof and as a consequence the Hardware cannot be used by the Government.

5.7

All incidental costs including parts, transportation and labour charges incurred by the Contractor pursuant to Clause 5.6 above shall be borne by the Contractor.

5.8

Response Time(s)

5.9

5.8.1

Corrective Maintenance will be provided by the Contractor upon request by the Government between Mondays through Sunday (irrespective of public holidays). The Response Time during standard coverage period (as defined in Clause 5.9 below) shall be two (2) hours from the time of notification of a fault and the Down Time shall be six (6) hours.

5.8.2

Preventive Maintenance and Mandatory Engineering Changes will be conducted on a regular basis, in accordance with the maintenance schedule specified in Clause 5.3.1 above, and shall be provided by the Contractor at such time(s), during normal business hours, as may be agreed from time to time by the Contractor and the Government.

Standard Coverage Period 5.9.1

The standard coverage period shall be from Mondays to Thursdays and Saturday, from 7.45 am to 5.00 pm.

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5.9.2

If the Government requires the Contractor to provide any Maintenance Services outside the standard coverage period, the Contractor shall be obliged to provide such services to the Government at no additional cost.

5.9.3

The Contractor’s Response Time outside the standard coverage period shall be within three (3) hours from the time of receipt by the Contractor of a request from the Government to rectify a fault.

Hard Disk 5.10 [In the event any fixed or hard disk has been replaced, the Contractor shall destroy any information contained in such fixed or hard disk to the Government's satisfaction.] [In the event any fixed or hard disk has been replaced, the Contractor shall immediately upon such replacement hand over such fixed or hard disk to the Government] 6.

Government’s Obligations 6.1

7.

The Government shall: 6.1.1

grant the Contractor such access to the Site as the Contractor shall from time to time reasonably require in order to perform the Maintenance Services; and

6.1.2

make available the Hardware and supply all necessary documentation and/or other information to enable the Contractor to properly diagnose any fault in the Hardware.

Contractor’s Warranties 7.1

The Contractor warrants that all services provided by the Contractor pursuant to Clause 5 above shall be carried out with reasonable care and skill and performed in a timely, workmanlike and cost-effective manner using only qualified staff sufficiently familiar with the functions and operation of the Hardware and that the Contractor shall maintain a training programme to ensure that adequately qualified support staff provide all such services. The Contractor undertakes to remedy free of charge to the Government any faulty work arising from a breach of this warranty which is reported to the Contractor in writing [within 30 (thirty) days] after performance by the Contractor of such work. If the Contractor rectifies such faulty work by the provision at the Contractor’s option of replacement or additional materials or services within [a reasonable period of time], then the Contractor shall have no other liability of any kind in respect of or arising from such faulty work.

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8.

7.2

The Contractor further warrants and undertakes to the Government that all conditions and/or warranties in respect of the Hardware as are contained in the Main Contract shall be fully applicable in respect of any replacement part(s) in respect of the Hardware supplied by the Contractor to the Government under this Agreement.

7.3

The Contractor further warrants that, in the event that private and confidential information is learned or gained by the Contractor, its employees, personnel or agents in the course of performing the Maintenance Services, the Contractor, its employees, personnel or agents shall keep such information confidential and shall not cause or allow any disclosure thereof to any third parties.

Contractor’s Responsibilities 8.1

8.2

Prior to performing the preventive maintenance services, the Contractor shall submit to the Government a schedule of the preventive maintenance services for the Government’s approval. The schedule of the preventive maintenance services shall include but not limited to description of equipment to be maintained, procedure and time taken to perform preventive maintenance on each equipment. The Contractor shall maintain a log of all activities at the Site carried out by the Contractor pursuant to this Agreement. The Contractor shall propose a format for the log and recommend procedures for its usage. The log will include but not limited to the following: 8.2.1

Date and time the Contractor is notified of any defect or malfunction;

8.2.2

Date and time of arrival of the Contractor’s personnel at the Site;

8.2.3

Item or part of the Hardware subject to investigation;

8.2.4

Date and time and total time the System or part thereof is made unavailable to the Government;

8.2.5

Description of defects(s), including cause(s);

8.2.6

Corrective action taken, including temporary corrections, bypasses, etc;

8.2.7

Date and time and duration of rectifications or corrections taken;

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8.2.8

Preventive action to be taken; and

8.2.9

Tests performed and results;

8.3

Following every visit to the Site by the Contractor’s personnel, the Contractor shall at its own expense within a reasonable period of time, clear away and remove from the Site all surplus materials, rubbish and work of every kind and leave the whole of the Site clean and in workmanlike condition.

8.4

Where the Contractor is unable to rectify any defect or malfunction within the prescribed response time(s) from the time the Contractor is notified of the same, the Contractor shall immediately notify the Government giving pertinent details including the time by which it expects to complete the rectification. The notice shall be for information only and it shall not by itself result in a waiver by the Government of any rights or remedy which the Government is entitled.

8.5

The Contractor shall continue with its effort to correct or rectify any defect or malfunction in the Hardware reported to it until such time as the defect or malfunction is corrected or restored such as to enable the System to operate in the manner contemplated in the Government Requirements, unless the Contractor is able to satisfy the Government that the defect or malfunction is due to a factor for which the Government is responsible.

8.6

The Contractor shall, even where a defect or malfunction in the Hardware or System is due to a factor for which the Government is responsible, assist the Government to correct and/or rectify the defect or malfunction free of charge.

8.7

Any software or equipment of any kind used by the Contractor to carry out his obligations under this Agreement shall be deemed to be included in the charges payable for such services and shall not interfere with the normal operations of the System. Any debugging tools incorporated into the System shall become the property of the Government.

8.8

The Contractor shall, at the request of the Government, supervise the dismantling, packing, unpacking, inspection and re-installation of the System or part thereof where the System or part thereof is moved from one location to another in Brunei Darussalam provided that the Government has given at least 3 days notice of its intention to move the System or part thereof to the Contractor.

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9.

Training 9.1 The Contractor shall provide the training services described in the Main Contract. 9.2 The charges payable by the Government to the Contractor for the provision of the abovementioned training services shall be according to the Main Contract.

10.

10.

Liquidated Damages 10.1

If the Contractor fails to rectify any faults or defects within the Down Time (as prescribed in Clause 5 above), the Contractor shall pay as liquidated damages and not as penalty a sum equivalent to [______ % of the monthly Maintenance Charges], for each additional day or part thereof (not to exceed thirty (30) days) that the Contractor fails to rectify such fault or defect

10.2

The Contractor and the Government agree that these liquidated damages are reasonable in light of the harm that will be caused by such delay and the difficulties of proof of loss and the inconvenience and infeasibility of otherwise obtaining an adequate remedy; provided always that the total liquidated damages shall not exceed the [total annual Maintenance Charges] paid by the Government to the Contractor. The payment of liquidated damages shall be the Contractor’s liability and the Government’s sole remedy for such delay.

Miscellaneous The provisions in Clauses 12 and 16 to 31 of the Main Contract shall apply mutatis mutandis to this Agreement

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SCHEDULE I SOFTWARE LICENCE AND MAINTENANCE SUPPORT AGREEMENT

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Table of Contents

1.

Definitions and Interpretation

2.

Contractor’s Undertaking

3.

Duration of Technical/Maintenance Support

4.

Technical/Maintenance Support Fee

5.

Technical/Maintenance Support Services

6.

Contractor’s Infrastructure

7.

Contractor’s Facilities

11.

Government’s Obligations

12.

Contractor’s warranties

13.

Contractor’s Obligations

14.

Training

15.

Miscellaneous

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SOFTWARE LICENCE AND MAINTENANCE SUPPORT AGREEMENT

1.

Definition and Interpretation 1.1

In this Agreement unless inconsistent with the context or otherwise specified the following definitions shall apply: 1.1.1

“Acceptance Date” means the Acceptance Date as defined in the Main Contract;

1.1.2

“the Current Release” means the most recent Release accepted by the Government under the Main Contract;

1.1.3

“Defects Warranty Period” has the same meaning as in the Main Contract;

1.1.4

“Documentation” has the same meaning as in the Main Contract;

1.1.5

"Down Time" means the period starting from the Contractor's receipt of a notice from the Government requiring the Contractor to deliver and/or provide the Technical/Maintenance Support Services in respect of the System and/or Software until the rectification of the System and/or Software to normal working order, in conformity with the specifications in the Main Contract and/or restoration of database integrity;

1.1.6

“Government Requirements” has the same meaning as in the Main Contract;

1.1.7

"Hardware" has the same meaning as in the Main Contract;

1.1.8

"Main Contract" means the Contract Reference No. MOE/EGOV/DS/001-9/2004 entered into between the Contractor and Government on ___________ 2005 for the Supply, Delivery, Installation, Testing, Commissioning and Maintenance of Schools Network Infrastructure for Government Primary, Secondary and Religious Schools, Ministry of Education, Brunei Darussalam (Phase I, II & III);

1.1.9

"Maintenance Charges" means the charges payable by the Government to the Contractor as set out in Schedule A;

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1.1.10 "New Release" means any new Release mad available to the Government pursuant to Clause [ ]; 1.1.11 “Release” means a version of the Software (defined by reference to variations in version numbers, e.g v. 1, 2, etc.); 1.1.12 "Response Time" means the period starting from the Contractor's receipt of a notice from the Government requiring the Contractor to deliver and/or provide the Technical/Maintenance Support Services to the arrival and/or commencement of the Technical/Maintenance Support Services at the Site; 1.1.13 "Site" has the same meaning as in the Main Contract; 1.1.14 “the Specification” means the specification of the Current Release describing the facilities and functions thereof; 1.1.15 “System” has the same meaning as in the Main Contract; 1.1.16 "Technical/Maintenance Support Fee" means the fee payable on by the Government to the Contractor for the Technical/Maintenance Support Services as described in the Main Contract; 1.1.17 "Technical/Maintenance Support Services" means the technical/maintenance support services to be provided by the Contractor to the Government pursuant to Clause 2 below. 1.2

References herein to Clauses and Schedules are to clauses in and schedules to this Agreement.

1.3

The Schedules to this Agreement shall be deemed to form part of this Agreement.

1.4

The headings to the Clauses and Schedules are inserted for ease of reference only and shall not affect the interpretation and construction of this Agreement.

1.5

Unless the context requires otherwise, words importing the singular include the plural and vice versa, words importing gender include every gender and words denoting person shall include a natural person, company, firm, unincorporated association or any other legal entity whether acting as trustee or not.

1.6

Any reference to a working day shall mean a reference to any day other than a Friday and Sunday or a gazetted public holiday in Brunei

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Darussalam and any reference to a month or year shall mean a month or year reckoned according to the Gregorian calendar. 1.7

2.

Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.

Services to be provided The Contractor hereby agrees to provide the Technical/Maintenance Support Services to the Government upon the terms and conditions hereinafter contained.

3.

4.

5.

Duration of Technical/Maintenance Support Services 3.1

The Contractor shall provide the Technical/Maintenance Support Services for a period of __________(__) years commencing from the date of expiry of the Defects Warranty Period.

3.2

After the expiry of the aforesaid ____________(___) years maintenance period, this Agreement may be renewable annually thereafter, at the Government's option, on the same terms and conditions and/or on such revised conditions as may be expressly agreed to between the parties in writing.

Technical/Maintenance Support Fee 4.1

The Technical/Maintenance Support Fee shall be levied by the Contractor monthly in arrears according to the Main Contract and shall be payable by the Government in Brunei Dollars.

4.2

The Technical/Maintenance Support Fee shall include the cost of any New Release(s) of the Software and the cost of delivery and installation of any such New Release(s) at the Site.

Technical/Maintenance Support Services 5.1

The Contractor shall provide the Government with the following Technical/ Maintenance Support Services: Error correction 5.1.1 If the Government shall discover that the Current Release fails to conform with any part of the Specification then the Government

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shall within fourteen (14) days after such discovery notify the Contractor in writing of the defect or error in question and provide the Contractor (so far as the Government is able) with a documented example of such defect or error. 5.1.2

On receipt of a request for correction of a defect or error, the Contractor shall promptly dispatch appropriately qualified and experienced person(s) to investigate and correct the defect or error within the response time specified below:

Category Priority 1 Defect

Description When the System cannot boot up or when the System is not functioning as it normally would, to the extent that it boots up but keeps “crashing”

Response Time Within 2 hours of receipt of notification of defect

Down Time A period not exceeding one (1) day

Priority 2 Defect

When the System is still functioning but users are unable to use the main core of its functions – communications; file sharing and software database application sharing

Within 2 hours of receipt of notification of defect

A period not exceeding three (3) days

Priority 3 Defect

When the System is still functioning and except for some isolated users who are unable to logon, most users are able to logon and use the main core of its functions (communications, file sharing and software database application sharing)

Within 2 hours of receipt of notification of defect

A period not exceeding seven (7) days

5.1.3

Forthwith upon such correction being completed, the Contractor shall deliver to the Government the corrected version of the object code of the Current Release in machine readable form together with appropriate amendments to the Documentation specifying the nature of the correction and providing instructions for the proper use of the corrected version of the Current Release.

5.1.4

If requested by the Government, the Contractor shall provide as soon reasonably practical training for designated members of the

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Government’s staff to enable the Government to make proper use of the corrected version of the Current Release. The Contractor shall in addition provide the Government with all other assistance reasonably required by the Government to enable the Government to implement the use of the corrected version of the Current Release. The provision of such training and assistance is included in the Technical/Maintenance Support Fee. 5.1.5

The foregoing error correction service shall not include the provision of services in respect of: 5.1.5.1 defects or errors resulting from any modifications of the Current Release made by any person other than the Contractor without the Contractor’s prior written consent; 5.1.5.2 any version of the Software other than the Current Release; 5.1.5.3 use of the Current Release other than in accordance with the Documentations or operator error; 5.1.5.4 defects or errors caused by the use of the Current Release on or with equipment (other than the Hardware) [or programs] not supplied by or approved in writing by the Contractor; 5.1.5.5 any modification or enhancement of the Current Release if such modification or enhancement results in a departure from the Specification.

5.1.6

5.2

The Contractor shall upon request by the Government provide the foregoing error correction service notwithstanding that the defect results from any of the circumstances described in Clause 5.1.5 above. The Contractor shall in such circumstances be entitled to make an additional charge on a time and materials basis in accordance with its then current standard rates.

If the Government shall discover that the Documentations does not provide adequate or correct instruction for the proper use of any facility or function set out in the Specification then the Government shall notify the Contractor in writing of the fault in question within fourteen (14) days after such discovery. The Contractor shall thereupon promptly correct the fault and provide the Government with appropriate amendments to the Documentations.

New Releases 5.3 The Contractor shall promptly notify the Government of any new Release of the Software which the Contractor shall from time to time make

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generally available to its licensees. The Contractor shall provide with such notification an explanatory memorandum specifying not only the nature of the improvements but also any adverse effects which the New Release may be expected to have including in particular any expected degradation in the performance of the Software. While it is acknowledged by the Government that the explanatory memorandum may not be equivalent to a detailed specification of the New Release it shall contain sufficient information to enable the Government to judge whether the New Release will be appropriate to the Government’s requirements. 5.4

The provision of each New Release during the term of this Agreement is included in the Technical/Maintenance Support Fee.

5.5

The Government is not obliged to accept or use the New Release.

5.6

If the Government accepts the New Release then the New Release shall thereby become the Current Release and the provisions of this Agreement shall apply accordingly.

5.7

In reasonable time prior to the delivery of the New Release the Contractor shall provide the Government with amendments to the Specification which describes the amended or additional functions and facilities of the New Release. The Contractor shall deliver to the Government the object code of each New Release which the Government elects to use.

5.8

If required by the Government the Company shall install the New Release and provide training for the Government’s staff in the use of the New Release as soon as reasonably practicable after the delivery and installation of the New Release.

5.9

Upon the acceptance of the New Release by the Government, the Government shall if requested by the Contractor return to the Contractor previous Current Release and any part of the Documentations or the Specification which has been superseded and all copies of the whole or any part thereof, or, if required by the Contractor, shall destroy the same and certify in writing to the Contractor that they have been destroyed.

Amendments 5.10 If required by the Government, the Contractor shall make such amendments to the Software and Documentations as are necessitated by new Releases of the system operating software and/or modifications to the Hardware. The costs incurred by the Contractor for any work carried out by the Contractor pursuant to this Clause 5.10 is included in the Technical/Maintenance Support Fee. Advice/Help Desk

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5.11

The Contractor shall provide the Government between the hours of 7.45a.m. to 5.00p.m., Monday to Thursday and Saturday (excluding public holidays in Brunei Darussalam) with such technical advice by any of the telecommunications (including but not limited to electronic mail) telephone calls facsimile transmission postal mail or visits by staff of the Contractor as shall be reasonably necessary to resolve the Government’s difficulties and queries in using the Current Release.

Standard Coverage Period 5.12The standard coverage period shall be from Mondays to Thursdays and Saturday, from 7.45 am to 5.00 pm. 5.13If the Government requires the Contractor to provide any Maintenance Services outside the standard coverage period, the Contractor shall be obliged to provide such services to the Government at no additional cost. The Contractor’s Response Time outside the standard coverage period shall be within three (3) hours from the time of receipt by the Contractor of a request from the Government to rectify a defect or error. Access 5.14

The Government shall: 5.14.1 grant the Contractor such access to the Site as the Contractor shall from time to time reasonably require in order to perform the Technical/Maintenance Support Services; 5.14.2 make available to the Contractor the System and/or Software and all necessary documentation and/or other information to enable the Contractor to properly diagnose any defect in the System and/or Software

Technical/Maintenance Support Services outside Standard Coverage Period 5.16

6.

If there is a need for the Contractor to provide the Technical/Maintenance Support Services outside the standard coverage period, the Contractor shall do so without additional charge to the Government. Standard coverage period shall be Mondays to Thursdays and Saturdays, from 7.45 am to 5.00pm.

Contractor’s Support Infrastructure 6.1 The resources of the Contractor's support infrastructure shall be at the disposal of the Contractor's customer service representative and shall be accessible at

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all times by the Government and/or the Government's representative(s). These resources shall include the following: 6.1.1

The Country Specialist who shall be located in Brunei Darussalam, and be responsible for specific ranges of products and shall represent the Contractor's first line of support for the Government in Brunei Darussalam.

6.2 Area Support Group 6.2.1

The Area Support Group, currently located anywhere in South East Asian Region, shall represent the contractor's second line of support.

6.3 Customer Service Technical Operation (hereinafter called "CSTO") 6.3.1

7.

8.

CSTO, located in Brunei Darussalam, shall represent the Contractor's highest level of support for the Government in Brunei Darussalam.

Support Facilities 7.1

The Contractor shall specify any requirements necessary to set up the Government’s local support facilities or to incorporate the Contractor’s support facilities.

7.2

Support facilities and assistance for site planning, assessment of system performance and subsequent rearrangement or extensions within the system shall be quoted by the Contractor to the Government, as and when needed by the Government.

Contractor's Warranties 8.1

The Contractor hereby warrants that: 8.1.1

its title to and property in the Software and the Documentation is free and unencumbered and that it has the right, power and authority to license the same to the Government upon the terms and conditions of this Agreement;

8.1.2

the media upon which the Software and/or Documentation are stored will be free from defects in materials, design or workmanship under normal use;

8.1.3

the Software will conform in all respects to the Specifications;

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8.2

9.

8.1.4

all services provided pursuant to Clause 5 above shall be carried out with reasonable care and skill and performed in a timely, workmanlike and cost-effective manner using only qualified staff sufficiently familiar with the functions and operation of the System and/or Software and undertakes to remedy free of charge to the Government any faulty work arising from a breach of this warranty which is reported to the Contractor in writing within 30 (thirty) days after performance by the Contractor of such work;

8.1.5

all conditions and/or warranties in respect of the System and Software as are contained in the Main Contract shall be fully applicable in respect of any replacement part(s) in respect of the System and Software supplied by the Contractor to the Government under this Agreement;

8.1.6

in the event that private and confidential information is learned or gained by the Contractor, its employees, personnel or agents in the course of performing the Technical/Maintenance Support Services, the Contractor, its employees, personnel or agents shall keep such information confidential and shall not cause or allow any disclosure thereof to any third parties.

The Government shall give notice to the Contractor, as soon as it is reasonably able, upon becoming aware of a breach of any of the abovementioned warranties.

Contractor’s Responsibilities 9.1

The Contractor shall maintain a log of all activities at the Site carried out by the Contractor pursuant to this Agreement. The Contractor shall propose a format for the log and recommend procedures for its usage. The log will include but not limited to the following: 9.1.1

Date and time the Contractor is notified of any defect or malfunction;

9.1.2

Date and time of arrival of the Contractor’s personnel at the Site;

9.1.3

Item or part of the System and/or Software subject to investigation;

9.1.4

Date and time and total time the System or part thereof is made unavailable to the Government;

9.1.5

Description of defects(s), including cause(s);

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9.1.6

Corrective action taken, including temporary corrections, bypasses, etc;

9.1.7

Date and time and duration of rectifications or corrections taken;

9.1.8

Preventive action to be taken; and

9.1.9

Tests performed and results;

9.2

Following every visit to the Site by the Contractor’s personnel, the Contractor shall at its own expense within a reasonable period of time, clear away and remove from the Site all surplus materials, rubbish and work of every kind and leave the whole of the Site clean and in workmanlike condition.

9.3

Where the Contractor is unable to rectify any defect or malfunction within the prescribed response time(s) from the time the Contractor is notified of the same, the Contractor shall immediately notify the Government giving pertinent details including the time by which it expects to complete the rectification. The notice shall be for information only and it shall not by itself result in a waiver by the Government of any rights or remedy which the Government is entitled.

9.4

The Contractor shall continue with its effort to correct or rectify any defect or malfunction in the System and/or Software reported to it until such time as the defect or malfunction is corrected or restored such as to enable the System and/or Software to operate in the manner contemplated in the Government Requirements, unless the Contractor is able to satisfy the Government that the defect or malfunction is due to a factor for which the Government is responsible.

9.5

The Contractor shall, even where a defect or malfunction in the System and/or Software is due to a factor for which the Government is responsible, assist the Government to correct and/or rectify the defect or malfunction free of charge.

9.6

Any software or equipment of any kind used by the Contractor to carry out his obligations under this Agreement shall be deemed to be included in the charges payable for such services and shall not interfere with the normal operations of the System. Any debugging tools incorporated into the System shall become the property of the Government.

9.7

The Contractor shall, at the request of the Government, supervise the dismantling, packing, unpacking, inspection and re-installation of the

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System or part thereof where the System or part thereof is moved from one location to another in Brunei Darussalam provided that the Government has given at least 3 days notice of its intention to move the System or part thereof to the Contractor. 10.

11

12.

Training 10.1

The Contractor shall provide the training services described in the Main Contract.

10.2

The charges payable by the Government to the Contractor for the provision of the abovementioned training services shall be according to the Main Contract.

Liquidated Damages 11.1

If the Contractor fails to rectify any defect or error within the Down Time (as prescribed in Clause 5 above), the Contractor shall pay as liquidated damages and not as penalty a sum equivalent to [______ % of the monthly Technical/Maintenance Support Fee], for each additional day or part thereof (not to exceed thirty (30) days) that the Contractor fails to rectify such fault or defect

11.2

The Contractor and the Government agree that these liquidated damages are reasonable in light of the harm that will be caused by such delay and the difficulties of proof of loss and the inconvenience and infeasibility of otherwise obtaining an adequate remedy; provided always that the total liquidated damages shall not exceed the [total annual Technical/Maintenance Support Fee] paid by the Government to the Contractor. The payment of liquidated damages shall be the Contractor’s liability and the Government’s sole remedy for such delay.

Miscellaneous The provisions in Clauses 12 and 16 to 31 of the Main Contract shall apply mutatis mutandis to this Agreement

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SCHEDULE J BANK GUARANTEE FOR PERFORMANCE BOND To:

[…..]

WHEREAS [name of Contractor] of ………………….has entered into a contract with the Government of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam, represented by the Ministry of Education (“the Government”) dated …………… for the Supply, Delivery, Installation, Testing, Commissioning and Maintenance of Schools Network Infrastructure for Government Primary, Secondary and Religious Schools, Ministry of Education, Brunei Darussalam (Phase I, II & III) (Contract Ref. ____________ ) (“the Contract”) and in this connection a performance bond is required in the sum of [state amount] as security for the fulfillment by [name of Contractor] of its obligations under the Contract. NOW we [name of the bank] of [registered address of the bank], hereby guarantee payment to the Government on demand of up to [state amount] in the event of [name of Contractor] failing to fulfil the Contract, provided that the Government’s claim hereunder is received in writing at this office accompanied by a signed statement that [name of Contractor] has failed to fulfil the Contract, without the Government needing to prove or show any ground(s) or reason(s) for its demand. Such statement shall be accepted by us as conclusive evidence that the amount claimed is due to the Government under this Guarantee. This Guarantee shall become operative on the date of signing of the Contract by the Government and the Contractor and shall expire six (6) months after the expiry of the last Defects Warranty Period (as defined and specified in the Contract). This Guarantee shall be governed by and construed in accordance with the laws of Brunei Darussalam.

[signature of authorized signatory] For and behalf of [name of the bank].

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SCHEDULE K KEY PERSONNEL [to be inserted after award of tender]

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SCHEDULE L DOCUMENTATION [to be inserted after award of tender]

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SCHEDULE M TRAINING AND RELATED SERVICES [to be inserted after award of tender]

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