re) prasarana ON THIS 24 DECEMBER 2010 BETWEEN SYARIKAT PRASARANA NEGARA BERHAD (467220-u) AND SOLSIS (M) SDN BHD (8787347-P) CONTRACT AGREEMENT DESIGN, MANUFACTURE, DELIVERY, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIDKL BUSES [CONTRACT NO.: PRASARANA/LSD/CTT/2.0256/2010]mE DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRACTNO _: __PRASARANAILSDICTTI2.0266/2010 THIS AGREEMENT is made the 24 dayof December 2010 BETWEEN (1) SYARIKAT PRASARANA NEGARA BERHAD (Company No. 467220-U), having its registered office and principal place of business at B-20-1, Level 20, Menara UOA Bangsar, No. 5 Jalan Bangsar Utama 1, 59000 Kuala Lumpur, Malaysia (“the Employer") which expression shall include its permitted assigns, successors-in-title and duly appointed representatives; AND (2) SOLSIS (M) SDN BHD (Company No. 8787347-P), having It registered address at Suite 5.02, Wisma Academy No 4A, Jalan 19/1, 46300 Petaling Jaya Selangor Darul Ehsan, Malaysia ("the Contractor’) which expression shall include its permitted assigns, successors-incttle and duly appointed representatives. WHEREAS: (A) The Employer is in the business of asset development and management of the Klang Valley public transportation systems. (8) Tho Employer issued its requirements through Tender Document dated May 2010 (hereinafter referred to as “the Tender’) in respect of "Design, Manufacture, Delivery, ~ Installation, Testing, Commissioning and Warranty of Cashless Bus System for Rapid KL Buses (hereinafter referred to as "the Works"). | : | | (C) The Contractor submitted its proposal dated 14 June 2010 in respcnse:-to_ such requirements and the Contractor represents that it possesses the required professignal “ organization, knowledge, expertise, skills, experience and availabilty, of suitably qualified, skiled and competent personnel to carry out the Works and. perform the i Works in accordance with the terms and conditions of this Agreement. (D) Relying upon the Contractor's Proposal and representations and in furthers Letier of Award dated 7 September 2010, Employer had agreed 10} appoint the” Contractor to provide the Works and the Contractor had agreed to accept the ‘appointment based on terms and conkitions of this Agreement. i Page 2 of 76Tm DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND. WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRAGTNO _: _ PRASARANAILSDICTTI2.02s6/2010 b) the release of which is likely to prejudice the interesis of the Employer; and ©) whichis a trade secret “Contract” means the Conditions of Contract, the “Contract Price” “Contract Project Schedule” “Contractor” “Contractor's Equipment” “Contractor Software’ “Defects Liability Period” “Design Data” Performance Specification, the Letter of Award and such further documents as may be expressly incorporated in the Letter of Award andlor Agreement, and variations in writing as may be agreed upon by the Parties; means the sum of Ringgit Malaysia Thirty Four Million Nine Hundred Eighty Six Thousand Two Hundred and Ninety Eight (RM34,986,298.00) only being the sum payable by Employer to Contractor for the ‘Works to be performed under this Agreement, details of which are set out in the Schedule of Prices as per SCHEDULE E; means the detailed project schedule in relation to the carrying out of the Works, prepared by the Contractor and agreed upon by the Employer, means the proponent (the person or persons, firm or company) whose proposal has been accepted by the Employer and who shall undertake to supply the System and render such services as may be required by this Contract end, shall include, for the purposes of the Contract, its successors and_ permitted assignees; means all equipment or things of whatever nature required or used in the performance of the Works but does not include things which are intended to form or forming part of the permanent work; means the softwere (including all the relevant source codes) to be developed by the Contractor in accordance with the requirements of the Performance Specification ; means the period of twenty four (24) months from the issuance of Certificate of Final Inspection and Acceptance: means all designs, specifications, plans, arrangement, layout and detail drawings, flow- sheets, calculations, schedules, cerlificates, computer data, letters of approval, samples, pattems, methods of manufacture end testi Page 4078Tme CONTRACT NO DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES PRASARANAJLSDICTTI2.0256/2010 Party" “Performance Bond” “Performance Specification” “Project Quality Plan” “Proposal” “Provisional Sum” “Renew” “Required Items" “Schedule of Prices” “Site” means cither the Employer or the Contractor as the case may be, and Parties means the Employer and the Contractor; means the bond to be obtained by the Contractor in accordance with clause 10; means the performance specification (General and Particular) referred to as the “Employer's Requirements” in the Tender and any further general or detailed specifications as may from time {0 time be furnished by the Employer to the Contractor; means a quality plan to be prepared by the Contractor which sets out details of the quality management system to be implemented by the Contractor in order to control all design, procurement, manufacture and installation activities, in such @ way as to ensure completion of the Works in accordance with the Contract; means the contractor's proposal dated 14 June 2010 submitted by the Contractor in response to the Tender, means a sum provided for in the Schedule of Prices for the execution of the Works andlor for contingencies, which sum may be used, in whole or in part, or not at all, at the direction of the Employer; means to renew, repair, alter or replace (including any design work as may be required) as may be necessary for the purposes of the Contract, and "Renewal" shall be similarly construed; means those items and products listed and identified as such in Schedule B including, but not limited to, Hardware, Software "and Documentation to be provided by the Contractor under the Contract; means the schedule identified as such in Schedule F; means the place or places provided by the Employer to which the machinery, equipment, materials, goods, spare parts, articles and things of all kinds 10 be provided under the Contract by the Contractor, is to be delivered andlor at which it is to be installed and/or set to work as the case may be; Page 6 of 76ame CONTRACT NO 12 13 14 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES PRASARANAILSDICTTI2.0256/2010 Interpretation Unless the context otherwise requires, 121 122 123 124 125 126 1.27 1.28 the singular includes the plural and vice versa and any gender includes all other genders; the wards "hereof, "herein", "hereto" or “hereunder” and words of similar import wherever used shall refer to this Contract as a whole and not to any particular clause only, any reference to stalutes and regulations made hereunder includes all amendments thereto enacted from time {o time and includes all orders or notices made under or pursuant fo such statute or regulation and any amendments thereto; the captions and headings to the clauses have been inserted for convenience of reference only and shail be ignored in the construction of any of the provisions hereof; words applicable to natural persans include any firm, partnership, company or corporation; Where the Contract is executed by two (2) or more persons collectively as one of the Parties hereto, all agreements, covenants, stipulations and undertakings expressed to be made by and on the part of such persons shall bind such persons jointly and severally, and the bankruptcy or insolvency of any one or ‘more of such persons shall in no way operate to release the other or others of its or their respective obligations and liabilities hereunder, where an act is required to be done within a specified number of days after or from a specified date the period is inclusive of and begins to run from the date so specified and where an act is required to be done by a specified date the period is inclusive of and ends on the date so specified: and where pursuant to the Agreement, the day on or by which act or thing is to be done is not a business day, such act or thing shall be done on the preceding business day. Descriptions in the Schedules 13.4 Any description given in the Schedule of Prices and in the work to be performed shall be read so as to identify the Hardware or Software or work for the purposes of pricing and payment. Such descriptions shall not in any way limit or define the hardware, Software or work which the Contractor is obliged to provide pursuant to the Contract. Severability 144 If any provision of the Contract is held invalid, illagal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Contract had been executed with the invalid provision eliminated Page Bol 76 £Ime DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND VIARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRACT NO PRASARANAILSOICTTI2.0256/2010__ 18 24 Governing Law 4.8.1. The Contract shall be governed and construed in accordance with the laws of Malaysia and the Parties hereto irrevocably agree to submit to the jurisdiction of, the Malaysian courts. SCOPE OF WORKS Execution of the Works 2.1.4. The Contractor shall undertake the execution of the Works in accordance with the Contract and in particular, the terms and condition specified in Schedule A, and within the Period for Completion as stated in Clause 3.1 herein. 2.1.2. The Contractor shall only commence the Works upon receipt of the Notice to Proceed. 2.1.3 The Contractor shall subject to the provisions of the Contract and save insofar as it is legally or physically impossible: () design, manufacture, delivery, install, integrate, test, commission, warranty and complete the Works; (i) provide all designs, services, labour, materials, Hardware, Software, Documentation, temporary works, transport to and from and in or about the Site and everything whether of a temporary or permanent nature required in and for such design, construction and completion so far as the necessity for providing the same is specified in or reasonably to be inferred from the Contract. 2.1.4 The Contractor shall be fully responsible for the design, execution and maintenance of the Works or portion of the works for which its design or alternative design has been accepted by the Employer, and shall absolutely guarantee the Employer independent of faut thal the design, materials and workmanship for the Works or portion of the works is. suitable for the requirements and purposes contemplated by the Employer. 2.1.5 The Contractor shall comply with and adhere strictly to the Employer's Representative's instructions and directions on any matter, whether mentioned in the Contract or not, concerning the provision of the Works. 2.1.6 The Contractor agrees and acknowledges that the prime objective of the Contract is the economic and timely completion of the Works and that the process of producing, optimising, developing and finalising the design of the Works shall require the closest consultation, cooperation, communication and coordination between itself, the Employer's Representative,the Employer, Contractors and designers appointed and/or nominated by the Employer. 2.1.7 Without limiting any other obligations arising under the Contract, the Contractor accepts prime contractor responsibilty for the performance of the Works and for the performance of any third party products, including Third Party Software comprised within the System. Page 10 of 75,ame CONTRACT NO 24 2.3.2 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND. WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES, PRASARANALSOICTTI2.025672010 i In the event the Employer exercises the option as stated in the Performance Specification, the Contractor shall within the scope of enabling the Employer to operate and manage the Contractor Software by itself provide the Employer with the following: (two (2) copies of the source codes for the Contractor Software in CDs form accompanied by a printout on paper of an index that allows access to each program or sub-program in case where such source codes are invented, created, generated, modified or produced only for the purpose of this Contract and (it) two (2) copies of execution files of the source codes for the Contractor or its subcontractor’s Software in CDs form in case where such source codes were originally invented, crealed, generated or produced by the Contractor or its subcontractors for the purpose other than those under this Contract and have been kept, held, retained or owned by Korea Smart Card Co. Ltd being the Contractor's sub-contractor since before this Contract. (iii) the source codes for the Contractor Software and its execution files shall be workable, fit and suitable fori intended purposes as contemplated by the Employer, Such source codes and execution files shall be delivered in stages as specified in the Performance Specification, For the avoidance of doubl, the delivery of the source codes and execution files which are acceptable to the Employer shall be one of the pre-conditions for the release of payment to the Contractor at each relevant stage of the System development. Where any source code included in the Contractor Software is generated by the Contractor (or any of ils employees, agents or sub-contractors) through the use of computer progrems owned by third parties, the material input to such computer programs in order to generate such source code whether in magnetic, paper or other form shall be treated as the source code for the purposes of this clause. For the avoidance of doubt, the Contractor shall provide and/or procure all ilems the Employer may reasonably require in order that the Employer shall be in a position to use, adapt, alter, enhance, modify or update the Contractor Software solely for the purpose contemplated under this Contract. Updates and New Releases of Contractor Software 244 242 243 The Contractor shell offer the Employer all updates and new releases to the Contractor Software immediately as they become available. If requested to do so, the Contractor shall demonstrate the features of the updates and new releases, and the effect of the updates and new releases on the performance of the System. ‘The Employer may at its option require that necessary updates to comply with the performance specification be implemented by the Contractor at no additional charge to the Employer. Where an update or new release is implemented, this Contract shall continue to apply in all respects to the update and new release. The update or new release shall form part of the System. Page 12 0176me CONTRACT NO 26 259 25.40 2.5.11 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES PRASARANAIL SOICTT/2.0256/2010 (iil) order the Contractor to carry out additional work in order to address or compensate for the defect responsible for such failure, to the Employer's Representative's satisfaction at the Contractor's expense. If the Employer grants a further period of time under the provisions of sub-clause 2.5.8 (i) and the Contractor fails to meet the relevant acceptance criteria before expiry of such period, the Employer shall be entitled, al that time, to exercise any remedies to which itis entitled under sub-clause 2. The Contractor shall not be entitled to any additional payment and/or ‘compensation as a result of resubmission of the System and/or any part of the System for testing and for carrying out additional works in order to address the failure of the System andlor any part of the System to comply with the Performance Specification. A grant of additional time under the provisions of sub-clause 2.6.8 (i) shall not imply any change in the Completion Period and the provisions of Clause 9.1.1 below shall continue in full force and effect. Certificate of Final Inspection and Acceptance (CFIA) 264 26.2 When the Contractor considers that the Works has been completed and has satisfactorily passed the Acceplance Tests, the Contractor may give notice of that to the Employer's Representative accompanied by an undertaking to complete any outstanding work during the Defects Liability Period and a lst of all such work which in the opinion of the Contractor is outstanding and which shall be prior approved by the Employer. Such notice, list and undertaking shall be in writing and in such form as the Employer's Representative may prescribe and shall be deemed to be a request by the Contractor for the Employer's Representative to issue a Certificate of Final Inspection and Acceplance (CFIA) in respect of the Works, ‘The Employer's Representative shall upon receipt of such notice either issue 2 CFIA stating the date on which in its opinion the Works were completed in accordance with the Contract, or provide instructions in writing to the Contractor specifying all the work required to be done before the issuance of the CFIA. For the avoidance of doubt, the Works are deemed completed if the System and all its parts thereof have passed the relevant Acceptance Tests and the following has been delivered, installed, commissioned and/or provided to the satisfaction of the Employer: () the Hardware and Software comprising the System; (i) Documentation; (ii) the relevant source codes as required under the Contract; (iv) training on the System; and (v)__alllicences to the Software as required under the Contract Page 14 of 76mms DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES, CONTRACT NO PRASARANAILSO/CTTI2.0250/2010 2.74 278 2.78.4 It any defect, imperfection, shrinkage or any other faull whatsoever be such that in the opinion of the Employer's Representative it shall be impractical or inconvenient to have the Contractor remedy the same, the Employer's Representative shall ascertain the diminution in the value of the Works due to the existence of such defects, imperfections, shrinkages or any other fault whatsoever and deduct the amount of such diminution form any monies due or to become due to the Contractor under the Contract, and failing which, such diminution shall be recovered from the Performance Bond or as a debt due {rom the Contractor. The Employer will furnish supporting documents to the Contractor for such cost and expenses. Certificate of Making Good Defects The Employer's Representative shall issue a certificate of making good defects to the Contractor upon its satisfaction that any works required to be carried out during the Defects Liablity Period hes been carried out or made good to its satisfaction, save for any works which compliance may have besn waived by the Employer's Representative. Any works required to be performed during the Defects Liability Period shall be completed no later than thirty (30) days of expiry of the Defects Liabilty Period, 2.7B.2 The Defects Liability Period shall be deemed ended upon the issuance of the certificate 28 of making good defects referred to in clause 2.78.1. Contractor's Responsibilities 2.8.1 Responsibility for Desion {) The responsibility of the Contractor to design the System as part of the ‘Works is an obligation to carry out, perform and complete in accordance with the Performance Specification, the design of the works including but ‘without limitation to the preparation and submission for approval by the Employer's Representative of all Design Data and the selection of sny specifications for the kinds and standards of materials, goods and workmanship to be used in performing the Works. (ii) The Contractor accepts entire responsibilty for the overall and detailed design of the Works and for any mistake, inaccuracy, discrepancy or comission contained in the same. (i) Any reference to the design which the Contractor has prepared or shall prepare or issue for the Works shall include reference to any design which the Contractor has caused or shalll cause to be prepared or issued by others. (iv) The Contractor shall prepare and submit for approval such Design Data, or such designs as the Employer's Representative may reasonably require. Any change or modification to the Design Data or such other designs requested by the Employer's Representative in the course of the design approval process in order to comply with the Performance Specification shall be made without delay at no additional cost to the Employer. Such change shall be re-submitted to the Employer's Representative for approval and upon the approval granted by the Employer's Representative, the Contractor shell provide copies of all approved Design Data to the Employer's Representative and accept responsibility for the design. Page 18 of 76me CONTRACT NO 2.83 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES PRASARANAILSDICTTI2.0256/2010 (iv) o During the performance of the Works, the Contractor shall maintain the Site in a clean and tidy condition to the satisfaction of the Employer's Representative. On completion of the Works or any part or section of the Works, the Contractor shall clear away and remove from the Site, all the Contractors Equipment, surplus material and rubbish and vacate the Site in a clean and workmanlike condition to the satisfaction of the Employer's Representative. If the Contractor fails to comply with any of the above requirements, the Employer's Representative may arrange for the removal of the relevant items from the Site, at the cost of the Contractor, which may be deducted from any monies due or which shall become due to the Contractor. Contractor's Equipment (i) (i) (it) The Contractor shell take full responsibilty in ensuring thal the Contractor's Equipment used in the performance of the Works complies with the requirements of the relevant laws of Malaysia. The Contractor shall apply in writing to the Employer's Representative for permission, prior to the delivery of any machine, equipment or the Contractor's Equipment to the Site. With a view to securing the continued availability for the purpose of the performance of the Works of any hired Contractors equipment, in the event of termination, the Contractor shall not bring onto the Site any hired Contractor’s Equipment unless there is an agreement for hire which contains a provision that the owner will on request in writing by the Employer within seven (7) days after the date on which the {ermination becomes effective, and on the Employer's undertaking to pay all hire charges in respect thereof from the date of hire of such equipment to the Employer, hire the said equipment on the same terms given to the Contractor, except that the Employer shall be entitled to Permit the use by any other contractor employed to complete the Works. 2.84 The Contractor in addition to its other obligations under these Conditions of 2.8.5 Contract, shall have the following responsibilities: oO (ii) i) provision of general advice concerning the operation and use of the System; training on the use of the System and the interpretation of the Documentation; and resolution of System deficiencies andior operational difficulties. ‘The Contractor shall assign a project manager who will represent the Contractor and ensure that the project manager: 0 (ii) is fully acquainted with the System and the Contract Project Schedule; prepares written submission regarding compliance with the Contract Project Schedule and deliver to the Employer within fourteen (14) days Page 18 of 16 WrTHe CONTRACT NO 2.9 2.8.12 2.8.13 2.8.14 2815 2.8.16 2817 DESIGN, MANUFACTURE, DELIVERY. INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS 6US TICKETING SYSTEM FOR RAPIO KL BUSES PRASARANAILSDICTT2.0256/201 The Contractor shall take full responsibility for the care of any outstanding work and materials, plant and equipment for the incorporation therein which it undertakes to finish during the Defects Liability Period until such outstanding work has been completed. If any accident, failure or other event occurs due to any cause whatsoever, or in connection with the Works or any part thereof either during the execution of the Works or during the Defects Liability Period, the Contractor shall immediately report the accident, failure or event to the Employer's Representative , and unless otherwise directed by the Employer's Representative, generally or in any particular respect, conduct a full investigation into the ssid accident, failure or event in order to determine the cause or reason for the accident, failure or event, and submit a report to the Employer's Representative together with its proposals for remedial works in respect thereof. The Contractor shall not however cause any remedial work to be carried out in respect thereof, until directed to do so by the Employer’s Representative in writing, If by reason of any accident, failure or other event occurring to, of in connection ith the Works, or any part thereof, either during the execution of the Works or during the Defects Liability Period, any remedial or other work or repair as determined by the Employer's Representative to be urgently necessary for the safety of the Works or the public, and the Contractor fails to immediately perform such work or repair to the safisfaction of the Employer's Representative, the Employer's Representative may employ and pay other persons to carry aut such work or repair as the Employer's Representative may consider necessary. All costs and expenses properly incurred by the Employer's Representative in so doing shall be recoverable from the Contracior by the Employer's Representative, or may be deducted by the Employer's Representative from any monies due or which may become due to the Contractor. The Employer will furnish supporting documents to the Contractor for such cost and expenses. The Contractor shall employ Bumiputra consultants, sub-contractors and suppliers, to carry out specific portions of the Works and shall advise the Employer on the list of works. supply andlor services which it proposes to sub- let to Bumiputra organisations and the extent of Sumiputra participation in the execution of the Works within fourteen (14) days of receipt of the Letter of Award, These Bumiputra organisations shall be from the list of registered contractors, consultants and/or suppliers maintained by the relevant ministry in Malaysia. ‘The Contractor shall submit a complete list of consultants, sub-contractors and suppliers to be employed for the Works stating their job category and their responsibilities. Such persons appointed shall be suitably qualified and competent, and shall be registered with the respective professional boards. ‘The Contractor shall provide everything necessary for the proper execution of the Works unti its completion according to the requirements and the true intent and meaning of the documents forming the Contract, read and taken together, whether the same may be expressly or reasonably inferred therefrom. Contractor's Warranties 2.94 The Contractor warrants to the Employer that Page 20 of 75 Wwame DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES CONTRACT NO PRASARANAILSDICTT/2.0256/2010 244 3A 32 after giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled under the Contract. Manufacture of System Components 2.14.1 Following the issuance of the CFIA for the Works and without limitation in time and notwithstanding the termination of the Contractor's employment for any reason whatsoever, or enlry or expulsion by the Employer, or termination, completion, abandonment or suspension of the Contract and/or any part thereof, the Contractor shall permit andlor procure for the Employer, save for the Documentation whereby ownership shall be vested with the Employer, all documentation and data (including computer software, data and documents retating to the programming of electronic equipment) for the manufacture of the components in the System andlor sub-systems for the Employer's sole continual use of the System. The Employer and/or its nominated contractors or suppliers shall be allowed to use the aforesaid documentation and data to manufacture any parts equivalent, identical or similar to any items used in the System or any materials forming part of the Works as spare parts or replacement parts or extra parts, provided that the Employer shall have first given the Contractor the opportunity to undertake the manufacture of such parts at a price and on terms no less favorable to the Employer than those offered by the Contractor to its other customers in the preceding twelve (12) months. TIME Timetable 3.1.1. The period for completion for the Works is six {6) months from the commencement date specified in the Letler of Award until the date of the issuance of the CFIA (hereinafter refer to as "Ihe Completion Period") by the Employer to the Contractor. 3.1.2. Time shall be of essence in relation to compliance with the Contract Project Schedule. Extension of time 3.2.1. If the performance of the Contract by the Contractor is delayed by reason of default by the Employer or by other Contractors of the Employer, the Contractor shall be entitled to a reasonable extension of time and to any reasonable additional costs which it can show were directly incurred as a result of the delay, provided always that it has taken all measures to minimise such delays, and advises the Employer in writing before hand and without undue delay, 3.2.2 If the performance of the Contract by either Party is delayed by reason of any event of force majeure, both Parties shall be entitled to a reasonable extension of time provided that the Party so delayed notifies the other Party in writing without undue delay. Neither Party shall be entitled to any additional costs incurred as a resull of such delay. Page 22 of 78ame DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRACTNO _: _PRASARANAILSDICTTI202S672010 severity thal il effectively frustrates the original intention of this Agreement, then this Agreement may be terminated by either Party pursuant Clause 12 herein. 3.3.5 Obligations and Liabilities Not Affected 44 3.3.5.1 Notwithstanding any provisions under this Clause, if the occurrence of any Event of Force Majeure does not warrant the Parties herato to terminate this, agreement pursuant to Clause 12, the obligations and liabilities of the Parties, ‘which are nol affected by the Force Majeure, shall remain in full force and effect. PROJECT MANAGEMENT Contract Project Schedule 4.1.1 Within fifteen (15) days of the Notice to Proceed, the Contractor shall prepare a detailed computerised critical path method (CPM) Contract Project Schedule in accordance with the requirements of the Performance Specification and obtain the Employer's approval on the said schedule. 41.2 The Contract Project Schedule shall be used to monitor and report progress and to ascertain corrective actions and adjustments necessary to comply with the completion dates as may be revised from time to time in accordance with the provisions of the Contract. 4.4.3. The Contractor shall also submit with the initial Contract Project Schedule written narrative information as follows: - () —@ description of the methods and techniques used to achieve the required levels of schedules and sub-networks with emphasis on integration and roll-up capability; (i) a description of the activity coding structure to support the integration of the works break down structure with the schedules and enable proper summary roll-ups from detailed schedules; (ii) a flow chart depicting the top levels of the works breakdown structure; (iv) means and procedures for incorporating status and reflecting progress in detailed schedules and sub-networks; ()__ Hardware configuration utlised; and (vi) a description of the Contractor's approaches and methods for completion of the Works. 44.4 The initial Contract Project Schedule and its supporting detail sub-network diagrams and weighted bar charts shall be accompanied by the following one- lime output reports which are to be updated occasionally at the Employers’ request: (a complete fisting of logic connection; (i) —_acomplete listing of lead constraints; (ii) a complete listing of Contractor-imposed ster’complation dates; Page 24 of 75 wl ypme DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND. \VIARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRACTNO _: _PRASARANAILSDICTT2O2Se/2010, 4.3. Migration Plan 4.3.1 The Contractor shall submit a migration plan in accordance with the requirements of the Performance Specification, to the Employer for review and approval prior to the commencement of installation works at the Site. The migration plan shall define inter alia the activities, works and steps to be taken by the Contractor during the transition phase from the existing automatic fare collection system to the new System with the objective of minimising disruption to the Bus operation revenue operations. 4.4 Progress Meeting 4.4.1 The Contractor shall upon request by Employer, arrange andior attend progress meeting(s) as the case may be during the course of this Agreement including the Defect Liability Period and Endemic Warranty Period. 45 Progress Repor 9 4.5.1 The Contractor shall report progress of the execution of the Works in the manner in accordance with the requirements of the Performance Specification. 4.5.2. The Contractor shall submit six (6) copies of its monthly progress status report to the Employer, within five (5) days of the end of each month. 5 COMMUNICATIONS UNDER THE CONTRACT 5.1 Notices 5.1.1 Any notice, approval, consent, request or other communication which the Employer or the Contractor is required or authorised by the Contract to serve on the other shall be sufficiently served if sent to the Authorised Officer of the other al the address specified in Schedule D for the Employer and the address specified in Schedule C for the Contractor: @ —— byhand; or i) __by registered post or recorded delivery; or by facsimile transmission confirmed by registered post or recorded delivery; or 5.1.2 Any notice, approval, consent, request or other communications required or permitted to be given or made under the Contract shall be in writing in English language and shall be deemed to have been served: (i) in the case of delivery by hand when delivered to the addressee and the receipt is acknowledged by the addressee; in the case of facsimile transmission:- (@) if dispatched during reguiar business hours of the receiving office when dispatched and facsimile acknowledgement confirming due and complete transmission is automatically received by the sender of the facsimile; or Page 26 of 76 \ weme CONTRACT NO 7A 6.22 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES PRASARANAILSDICTTI202562010 Any breach of this clause 6.2 by the Contractor or by anyone employed by it or acting on its behall (whether with or without the knowledge of the Contractor) in relation to this Contract or any other contract for the Employer, shall entitle the Employer to determine the Contract and recover from the Contractor the amount of any loss resulting from such determination. VARIATIONS TO THE CONTRACT Amendments TAA 743 TAS TAT No amendments to the Contract, nor any additional or substitute clauses, Schedules or appendices thereto, shall be valid unless made in writing and executed on behalf of both Parties by their respective Authorised Officers. Any alteration to the Works may be made by the Employer during the continuance of this Contract or any extension thereof and shall be handled expeditiously and effectively by the Parties. Such changes may include but shall not be limited to additions, deletions, substitutions, alterations and modifications, which in the opinion of the Contractor will improve the appearance, quality, ‘economy of the design or performance of the System, or shorten the time for completion of the Works. ‘Where the issue of any instruction to vary the Works is necessitated by some default or breach of the Contract by the Contractor, or those for whom it is responsible, any additional cost attributable to such default shall be borne by the Contractor. The Employer may in its absolute discretion instruct a variation (including an instruction to omit work) in circumstances where in the opinion of the Employer, the Contracior failed t0 meei any of its obligations under the Contract. The Contractor shall not be entitled to any extension of time or payment in respect of or in connection with any such instruction. Any instruction under this ciause shall ‘not prejudice the Employer of any other rights or remedies which the Employer may have. The Contractor shall not proceed with any change prior to receipt of a variation order issued by the Employer. In the event the Employer desires any change to the Works, it shall notify the Contractor of its request. The Contractor shall upon receipt of the same provide the Employer within seven (7) days a change proposal defining the alterations and modifications required to be made and the price quotation for such alteration or modification. Upon receipt of a change proposal from the Contractor, the Employer may elect either: (to accept such alterations and quotations in which case the terms related to the project shall be amended or added in accordance with the approved alteration; (i) towithdraw the proposed alterations in which case the terms relating to the project shall continue in force without any modifications. Page 28 of 78ame CONTRACT NO 85 a7 88 842 B42 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES PRASARANAILSDICTTI2.0256/2010 the Contractor in regard to the expenditure of such Provisional Sum. In respect of every Provisional Sum, the Employer’s Representative shall have the power to order work to the performed, or Hardware, Software, materials or services 10 be supplied by the Contractor, the value of such work to the performed, or Hardware, Software, materials or services supplied shall be determined by the Employer's Representative and set off against the relevant Provisional Sums. ‘The Contractor shall when required by the Employer's Representative produce all quotations, invoices, vouchers and receipts in connection with expenditures relating to the Provisional Sums. Sufficiency of Contract Price 85.4 ‘The Contractor shall be deemed to have salisfied himself as to the correctness and sufficiency of the Contract Price and of the prices stated in the Schedule of, Prices which prices shall, subject only to the provisions of the Contract expressly entitling it to additional payment, cover all its obligations under and in relation to the Contract and all matters and things necessary for the proper design and execution of the Works, whether the same is expressly provided for in the Contract or is to be reasonably inferred therefrom, Retention Sum ara a72 873 ‘The Contractor hereby agrees that the Employer shall relain payment amounting ten percent (10%) of the amount due at each payment milestone (hereinafter referred to as “the Retention Sum”) until its reached five percent (5%) of the Contract Price (hereinafter referred to as “the Retention Sum Limit’). The Employer shall released fifty percent (50%) of the Retention Sum within sixty (60) days of the issuance of CFIA and another fifty percent (50%) within sixty (60) days of the issuance of the Final Certificate referred to in Clause 2.13.2, provided that if at the date of expiry of the Defect Liability Period there shall remain to be carried out by the Contractor any outstanding works, the Employer shall be entitled to withhold payment until completion of such works so much of the Retention Sum as. shall in the opinion of the Employer's Representative represent the cost of the work remaining to be executed. Without prejudice to other rights and remedies available to the Employer, the Contractor hereby agrees that the Retention Sum retained pursuant to clause 8.7.1 shall be forfeited as follows: () inthe event of termination of the Contract due to the default or willful act of the Contractor; (i) in the event any outstanding andlor remedial works as identified by the Employer's Representative are not completed {o the satisfaction of the Employer's Representative within thirty (30) days from the expiry of the Defects Liability Period. General Rights of Set-Off 884 The Employer may deduct from any monies due to the Contractor any sum which is payable by the Contractor to the Employer whether or not the Page 30 0f 6 roame DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRACT NO PRASARANAILSDICTTI2.025672010 9.4 95 10 10.4 10.2 10.3 10.4 40a 108.1 meet the stipulated time periads or deadlines. Waiver 94.1 No failure of the Employer to exercise any power given to it hereunder or to insist upon strict compliance by the Contractor with any obligation or condition hereof and no custom or practice of the Parties at variance with the terms hereof shall constitute a waiver of any of the Employers rights hereunder. 9.4.2 No waiver by the Employer of any default by the Contractor shall affect or impair the Employer's rights in respect of any subsequent default of any kind by the Contractor, nor shall any delay or omission of the Employer to exercise any rights arising from any defauit affect or impair the Employer's rights in respect of the said defauit or any other default of the Contractor hereunder. 9.4.3 No waiver of any of the terms, conditions or provisions of the Contract shall be effective unless it is expressed to be a waiver in writing and communicated in accordance with clause 5.1. Remedies cumulative 9.5.1 Excepl as otherwise expressly provided by the Contract, all remedies available to the Employer for breach of the Contract are cumulative and may be exercised concurrently or seperately. The exercise of any one remedy shall nol be deemed an election of such remedy to the exclusion of other remedies PERFORMANCE BOND The Contractor shall deposit with Employer within the time frame specified in the Letter of Award 3 Performance Bond amounting to five per centum (5%) of the Contract Price which shall be obtained from a local commercial/lsiamic bank in Malaysia acceptable by Employer for the cue observance and performance of Contract by the Contractor. The Performance Bond is attached in Schedule G. ‘The Contractor shall maintain and renew the Performance Bond, if necassary so that it, as the case may be, shall remain in full force and effective from the Commencement Date until the date of issuance of the Final Cerificate referred to in Clause 2.13.2. If for any reasons attributable to the Contractor, Employer suffers loss or damage or Where the Contract so provides, then Employer shall be entitle to call on the Performance Bond without prejudice to its other rights and remedies contained in the Contract or in law. In the event the Contractor's employment under the Agreement is determined due to the Contractor's default as per Clause 12.1, Employer shall have the right to forfeit the said Performance Bond or any balance thereof. ENDEMIC WARRANTY BOND ‘The Contractor shall provide to the Employer @ bond for the sum equivalent to one percent (1%) of the Contract Price via a Bank Guarantee issued by an approved licensed commercial or Islamic bank in Malaysia, to be provided within seven (7) days before the issuance of the certificate of making good defects referred to in Clause 2.78.1. for the purposes of guaranteeing the fulfilment of the Contractor's responsibilities and obligations in the event of Endemic Problems, as described in Clause 22.2, Page 22 of 76 Wrme : DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES. CONTRACT NO: _ PRASARANALSDICTTI2.0256/2010 7 11.2.2 The Arbitrator shall have power to review and revise any certificate, opinion, decision, requisition or notice and to determine ali matters in dispute which shall be submitted to him, and of which notice shall have been given in accordance with this Clause, in the same manner as if no such certificate, opinion, decision, requisition or notice had been given, 11.2.3 Upon every or any such reference the costs of such incidental to reference and award shall be al the discretion of the Arbitrator wha may determine the amount thereof, or direct the amount to be taxed as between solicitor and client or as between party and party, and shall direct by whom and to wham and in what manner the same be borne and paid. 14.2.4 The award of the Arbitrator shall be final and binding on both Parties, 11.25 In this Clause, “such reference” shall be deemed to be reference to arbitration within the meaning of the Arbitration Act, 2005 or any modification or revision or re-enactment thereof, 42. TERMINATION 124 The Employer may, without prejudice to any other rights herein, terminate this Contract at any time by giving notice in writing not less than seven (7) days to the Contractor, upon occurrence of the following: 121.4 there is a change of control in the Contractor, and it may be reasonably anticipated that it will have a material effect on the Contractor's ability to perform its obligations under the Contract; or 12.4.2 the Contractor, being a company, shall resolve, or have an order made against it for it to be wound up other than for the purposes of reconstruction or amalgamation; or 12.4.3: the Contractor shal () have a receiver, manager or administrative receiver appointed, or a receiving order or administration order is made for the benefit or on behalf of a creditor in respect of its business, assets or property or any part thereof; or (i) make any arrangement or composition, including a Voluntary Arrangement under the Companies Act 1965, with or for the benefit of a creditor, or (ii) become unable to pay or have no reasonable prospect of being able to pay its debis or have a distress levied against it; (iv) calor cause to be called, apply or have application made for, a meeting Of its creditors or any class of crecitor; or 122 Either the Employer or the Contractor may at any time by notice in writing not less than seven (7) working days, to the other Party terminate the Contract upon occurrence of the following events: 12.2.1 there is a breach by the other Party of any provision hereof which expressly entitles the nor-breaching Party to terminate the Contract; or Page 34 of 76 WpTe cowTRacr No 120.3 1204 1205 120.8 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND. WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES PRASARANAL SOICTT’2.0256/2010 1282.2. the sum in addition to the Contract Price in relation to the costs reasonably incurred by the Contractor by reason of the suspension provided that the Contractor provides a notice in writing to the Employer's Representalive of its intention to make such claim together with an estimate of the delays and costs incurred within thirty (30) days of receipt of the instructions in clause 128.1 If the progress of the performance of the Works is suspended for a period exceeding sixty (60) days from the effective date of suspension, the Contractor may serve a written notice to the Employer's Representative to proceed with the performance of the Works or with the part thereof in regard to which progress was suspended. If such permission is not granted by the Employer within thirty (30) days of the date of notice, the Contractor may by a further notice served on the Employer's Representative elect to treal the suspension as an abandonment of the Contract by the Employer. Clause 12A.3 shall nol apply in the event the Works or paris thereof have been suspended due to default by the Contractor. In the event of suspension due to any default by the Contractor, the Contractor shall not be entitled to any sums in addition to the Contract Price by reason of the suspension for the purposes of protecting and securing the Works. ‘On receipt of instructions from the Employer's Representative to resume the performance of the Works or part thereof, the Contractor shall make good any deterioration, loss or damage to the Hardware, Software, materials or paris thereof that may have occurred during the suspension and the costs properly incurred by the Contractor shall be determined as provided for in clause 12A.2. The Contractor shall not bbe entitled to payment for costs incurred resulting from the Contractor's failure to undertake the measures specified in clause 12A.1 13 CONFIDENTIALITY AND DATA PROTECTION 13.1. Confidentiality 13.1.1 In respect of any Confidential Information a Party may receive from the other ("the Discloser’) and subject always to the remainder of this clause 13.1, each Party ("the Recipient’) undertakes to keep secret and strictly confidential and shall not disclose any such Confidential Information to any third party, without the Discloser’s prior written consent provided that: () the Recipient shail not be prevented from using any general knowledge, experience or skills which were in its possession prior to the ‘commencement of the Contract; (i) the provisions of this clause 13.1 shall not apply to any Confidential Information which: {a) is in or enters the public domain other than by breach of the Contract or other act or omissions of the Recipient; {b) is obtained by a third party who is lawfully authorised to disclose such information; or (c) is authorised for release by the prior written consent of the Discloser, Page 36 of 76 WA ~Sme DESIGN, MANUF ACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KLBUSES. CONTRACT NO. PRASARANANLSDICTTI2.0256(2010 14 SECURITY 14.1 The Employer shall be responsible for maintaining the security of its premises in 14.2 143 144 accordance with its standard security requirements. The Contractor shall comply with all reasonable security requirements of the Employer while on its premises and shall procure that all its employees, agents and sub-contractors shall likewise comply with such requirements. Contractor's property 1424 Save as otherwise provided for in these Conditions of Contract, all the Contractor's property held on the premises of the Employer, including the Contractor's Equipment to be used in the performance of the Contract and any Required Items prior to the date of issuance of the CFIA, shall be held at the sole risk and responsibilty of the Contractor, except that the Employer shall be liable for loss of such Contractor's property which is due to the default or witful act of the Employer. 14.2.2 In the event of any loss of Contractor's property held on the Employer's premises for the purpose of the Contract, due to whatever cause, the Contractor shall replace such property as soon as reasonably possible and shall, notwithstanding such loss, make all reasonable efforts to fulfil its obligations within the Completion Period. The Employer shall assume risk of loss for any Required Items from the date of issuance of the CFIA on of the same, except in the case of loss due lo the default or wilful act by the Contractor. Data security 144.1 The integrity and security of data and software owned by or under the control of the Employer, in whatever form, is the responsibility of the Employer, except as otherwise stated in sub-clause 14.4.2 below. ‘The Contractor shall be liable to the Employer for loss or corruption of any data or software owned by or under the control of the Employer, including loss or corruption resulting from the introduction of a Virus, when such loss or corruption results from a wifful act or default of the Contractor. Such liability by the Contractor shall be subject to the Employer having exercised data security and data management procedures in accordance with good practices in the industry, ‘a8 appropriate (including taking back-up copies of data as shall be reasonably necessary and appropriate to ensure security and continued operation of the System). 14.43. In the event of loss or corruption of data or software owned by or under the control of the Employer, howsoever caused, the Contractor shall render assistance in returning such data or software to a fully operational state. If such loss or corruption of data is not a result of @ wilful act or default of the Contractor, the Contractor may recover from the Employer all reasonable costs of rendering such assistance, 14.4.4 For the avoidance of doubt the provisions of this clause 14.4 do not limit the Contractor's liability in respect of personal data under the provisions of clause 13.2 above. Page 38 0f 76me DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPIO KL BUSES GONTRACT NO PRASARANAILSDICTT/2.0256/2010 16.2 16.3 16.4 165 16.6 16.7 16.8 16.9 7 7A produce the necessary insurance certificates as and when requested by the Employer. In the event if the Contractor fails to produce satisfactory evidence in accordance herein and/or the Employer considers that the insurance coverage is inadequate, the Employer shall (and without prejudice to any other rights or remedies) procure and maintain the necessary insurance for the relevant coverage. However, if the Works entails the Contractor carrying out installation, testing and commissioning at the Site, the Employer shall at the Employer's own costs and expenses effect and maintain in the joint names with the Coniracior, including any Sub-contractor and/or agent nominated or otherwise, all risk insurance, Comprehensive General Liability and/or Public Liability insurance and Workmen's Compensation insurance and/or any other equivalent insurance as required by the law. Where an excess clause is applicable, the Contractor shall bear the amount of such excess not exceeding five percent (5%) of loss and/or damage subject to a minimum of RM7,500.00 for each and every loss. ‘The Contractor shall give notice to the Employer within fourteen (14) days before the date of installation, testing and commissioning for the purpose of procuring relevant insurance by the Employer in accordance with Clause 16.2. The Employer shall produce and deposit the relevant policy or certificate of the insurances to the Contractor. The receipts of premium paid shall be deposited to the Contractor within reasonable time as and when requested. It shall be the duty of the Contractor to extend copy of the relevant policy or certificate of the insurances to the Sub-contractors andlor agent if any. If the Contractor considers that the terms and conditions of the insurances taken up by the Employer is inadequate, the Contractor may effect at the Contractor's own cost such additional insurance as he may consider necessary. In the event the Employer fails to procure or renew or extend such insurances referred to in Clause 16.2, the Contractor shall notify the Employer in writing prior to taking up or renew or extend such insurances with insurance companies approved by the Employer and to recover the premium paid from the Employer upon production of the receipt of premium paid. And it shall become the duty of the Supplier to produce and shall deposit the relevant policy or certificate of the insurance cover to the Employer. ‘The Contractor shall not do or permit or suffer to be done anything whereby the policy or policies of insurance stipulated in this clause may become void or voidable. The Contractor shall within one (1) working day notify the Employer of any accident, which may or may not give rise to an insurance claim and shall, if required, furnish the Employer with an official report together with all supporting documents of repairs and replacement made. In the event of any claims, both the Employer and the Contractor shall give such reasonable assistance as may be required by each party. Both parties shall not give any release or make any compromise with the insurer(s) without prior written consent of the other party. APPROVAL TO ENTER INTO CONTRACT Each Party warrants to the other that it has undertaken all requisite corporate and other action to approve the execution and performance of the Contract. Page 40 of 76rte conTRAcT NO 22.2 DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES PRASARANAILSDICTTI2.0256/2010, the Contractor warrants thal the System: (i) has been installed and tested free from defects in materials and workmanship; (ii) is suitable for the use contemplated by the Employer; (ii) meets and conforms with the Performance Specification; and (iv) shall throughout the Defects Liabilily Period meet the Acceplance Criteria, 22.1.5 The Contractor warrants that the Hardware and Software and each and every 22.1.6 22.4.7 22.1.8 22.1.9 ‘component thereof are compatible and will work in combination as prescribed by the Performance Specification ‘The Contractor shall at its own expense repair of, if necessary, replace the ‘System or any component of the System within the time period as determined by the Employer at the material time, in the event the System during the Defects, Liability Period is found to be defective or non-conforming with the Performance ‘Specification or the Acceptance Criteria, or otherwise to be unsuitable for the use contemplated by the Employer. Notwithstanding and in addition to any provision in the Contract and the Performance Specification regarding the Contractor's requisite standard of skill and expertise in performing the Works, the Contractor warrants that it shail at all times use materials of high quality, employ appropriate techniques and standards, and provide all services with due care, skill and attention. If the Contractor fails to do or complete any work required and within the time periods stipulated pursuant to Clause 22.1.5, the Employer may carry out the ‘work or have the work done by others at the Contractor's risk and expense, and may deduct any expense incurred by the Employer in so doing from any monies, due or to become due from the Employer to the Contractor under the Contract, This right shall be without prejudice to any other rights which the Employer may have against the Contractor in respect of the failure of the Contractor to complete such work or remedy such defects. In the event of @ nominated sub-contractor having undertaken towards the ‘Contractor any continuing obligation extending for @ period exceeding that of the Defects Liabilty Period which is applicable to the Hardware, Software or services to which such continuing obligations relate, the Contractor shall forthwith upon the expiration of such Defects Liability Period (or in the event of an earlier determination of the Contract, forthwith upon such determination) assign to the Employer at the Employer's request, the benefit of such continuing obligation for the unexpired duration thereof. Endemic Problems in the System 22.2.4 An Endemic Problem shall be categorised as the cumulative failures or problems of any kind in the commen and/or identical sub-assemblies, parts, equipment or components where such items are covered under the Warranty and such failures or problems occur within the Endemic Warranty Period which occurrence reaches a failure rate in the following proportion:- Page 42 of 75me DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES “CONTRACT NO PRASARANAILSDICTTI2.025672010 23.6 23.7 23.8 24 24.4 242 243 25 26 26.1 (modify or replace the Required Items without reducing the performance or functionality of the same or the System, so as to avoid the infringement or the alleged infringement and the terms herein shall apply mutatis mutandis to such modified or replaced Required Items; or (ii) procure a licence to use the Required Items on terms which are acceptable to the Employer. If a replacement or modification in accordance with sub-clause 23.5 (i) is not possible so aS {0 avoid the infringement or the Contractor has been unable to procure a licence in accordance with sub-clause 23.5 (ji), the Contractor shall be liable for the full value of a replacement of the Required items together with the associated costs incurred in implementing such replacement. All royalties or other sums payable in respect of the supply and use in carrying out the Works of any patented articles, processes or inventions or in respect of the supply and use for the Works of drawings or models subject of copyright shall be deemed to have been included in the Contract Price, and the Contractor shall indemnify the Employer from and against all claims, proceedings, damages, costs and expense. ‘The Performance Specification and the copyright and any other rights of a like nature in relation thereto shall remain the property of the Employer. At the completion of the Contract, the Contractor shall dispose of the Performance Specification and all copies thereof as instructed by the Employer. Viruses ‘The Contractor warrants that it has taken all practical steps, in accordance with good industry practice, to prevent the introduction of eny Virus into the System, data or software owned by or under the cantral of the Employer. In the event however, of a Virus infecting the System or any other system, data or software owned by or under the control of the Employer, the Contractor undertakes to take corrective 1o bring the same back to its original uninfected state at no additional cost to the Employer within the time period stipulated by the Employer. Where the Contractor does not comply with clause 24,2 above, the Employer shall have the right to perform or appoint a third party to perform, the required corrective measures, at the cost of the Contractor, which shall be taken as money due to the Employer under the Contract. Exclusion of warranties ‘Save for those warranties and representations expressly given or made in this Contract, no warranties or representations are given or made by the Employer to the Contractor, whether express or implied. LICENCE ON CONTRACTOR SOFTWARE Grant of licences 26.1.4 The Contractor grants the Employer a perpetual, revocable and royalty (or any other fee) free right to use, adapt, the Software for any purpose. The Employer shall have the right to modify project specific software settings and parameters, such as: Poge 44 of 76TMe DESIGN, MANUFACTURE, DELIVERY, INSTALLATION, TESTING, COMMISSIONING AND WARRANTY OF CASHLESS BUS TICKETING SYSTEM FOR RAPID KL BUSES CONTRACT NO: _ PRASARANAL.SDICTT2.0256/2010, 31. 314 312 32. 32.1 32.2 33, 33.4 33.2 30.1.1 personal injury to or death of any person arising out of or in the course of or by reason of execution of the Works by the Contractor, 30.1.2 injury or damage of any kind to any property real or personal including the Works insofar as such injury or damage arose oul of or in the course of or by reason of the execution of the Works by the Contractor, provided that the same is due to any neglect or default of the Contractor, its personnel or subcontractors; 30.1.3 any claim made or brought by any individual or other legal person in respect of any loss, damage or distress whether direct or indirect, caused to that individual or other legal person arising out of or in the course of or by reason of execution, of the Works by the Contractor; or 30.1.4 any other reason so long as such loss, damage, liability, fee or cost was not due to any default of the Employer. ACKNOWLEDGEMENT The Contractor confirms and acknowledges that the Employer relies solely on the advice, skills and expertise of the Contractor in relation to the provision of the System, which includes but is not limited to the design, functionality and techrical specifications of the System, to address the requirements of the Performance Specification, The Contractor undertakes at all times to advise the Employer in writing of any matters that may affect the attainment of the objectives specified in the Performance Specification. TAXES ‘The Contractor shall be required to pay all Malaysian taxes payable by itself or its servants, agents and sub-Contractors as is chargeable under the laws of Malaysia for the time being in force. The Contract Price shall be deemed to include for payment of ail such taxes by the Contractor. The Contractor's employees may be liable to pay income tax pursuant to the laws of Malaysia in respect of their salaries and other emoluments as are chargeable therewith under the Malaysian laws for the time being in force and the Contractor shall perform such duties in regard to the deduction thereof as may be lawfully imposed on it by the Malaysian Government. USE OF IMPORTED MATERIALS AND IMPORTATION OF HARDWARE The Contractor shall in the execution of the Works use materials and goods of Malaysian origin as listed in the ‘SENARAI BAHAN/BARANGAN BINAAN BUATAN TEMPATAN' issued by IKRAM QA Services Sdn. Bhd. (hereinafter referred to as “IQSSB") andlor "SENARAI BAHAN/BARANGAN BUATAN TEMPATAN’ issued by SIRIM QA Services Sdn. Bhd. (hereinafter referred to as "SQSSB") and other local materials and goods certified by IQSSB andior SASSB, unless otherwise approved by the Empioyer in writing. Such local materials and goods shall comply with the standards issued by IOSSB and/or SASSB. The Contractor shall ensure that the procurement of approved imported materials, plant, equipment or other goods are obtained directly from the country of origin. The transportation and insurance of such imported materials, plant, equipment or other goods from the country of origin to the Site shall be arranged by the Contractor through Page 46 of 16