03 - Section III - Form of Agreement

8/7/2019 03 - Section III - Form of Agreement

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SECTIONIII Form of Agreement FINAL Page 1

MISC CONFIDENTIAL ALL INFORMATION CONTAINED IN THIS DOCUMENT BELONGS TO MISC AND SHALL NOT BE REPRODUCEDOR TRANSMITTED TO A THIRD PARTY WITHOUT WRITTEN PERMISSION FROM MISC.

PROJECT TITLE

DATA WAREHOUSE AND

BUSINESS INTELLIGENCE (DWBI)

TENDER TITLE

THE DESIGN, DEVELOPMENT,

INTEGRATION, TESTING ANDIMPLEMENTATION OF DWBI

INVITATION TO BID

SECTION III FORM OF AGREEMENT


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AGREEMENT FOR THE DESIGN, DEVELOPMENT, INTEGRATION TESTING ANDIMPLEMENTATION OF DATA WAREHOUSE AND BUSINESS INTELLIGENCE

SYSTEM

BETWEEN

MISC BERHAD(Company No: 8178-H)

(as MISC)

AND

_________________________________(Company No: ____________)

(as the BIDDER)


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SECTION III FORM OF AGREEMENT

ARTICLE FORM OF AGREEMENT

PREAMBLE

1. DEFINITIONS ........................................................................................ 5

2. DURATION............................................................................................. 9

3. SCOPE OF WORK AND DELIVERABLES ................................................. 9

4. OBLIGATIONS OF THE BIDDER .......................................................... 10

5. RIGHTS AND OBLIGATIONS OF MISC ................................................ 12

6. COMMENCEMENT ................................................................................ 13

7. CONTRACT PRICE ............................................................................... 13

8. TERMS OF PAYMENT ........................................................................... 14

9. PERFORMANCE BOND ......................................................................... 15

10. LIABILITY AND INDEMNITY............................................................... 17

11. DELAY AND LIQUIDATED DAMAGES .................................................. 18

12. INSURANCE ......................................................................................... 18

13. COMPLETION AND CERTIFICATE OF FINAL ACCEPTANCE ................ 20

14. WARRANTY ......................................................................................... 20

15. TERMINATION OF AGREEMENT ......................................................... 24

16. EFFECT OF TERMINATION .................................................................. 24

17. CONFIDENTIALITY ............................................................................. 25

18. INTELLECTUAL PROPERTY AND INDEMNIFICATION ........................ 27

19. TAXES .................................................................................................. 27

20. DISPUTE RESOLUTION ....................................................................... 28

21. GOVERNING LAW ................................................................................ 28

22. FORCE MAJEURE ................................................................................. 28


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23. ASSIGNMENT AND SUBCONTRACTING .............................................. 29

24. ENTIRE AGREEMENT ........................................................................... 29

25. CHANGE CONTROL PROCESS ............................................................. 29

26. PRESS RELEASE .................................................................................. 31

27. TITLE AND RISK .................................................................................. 31

28. NOTICES .............................................................................................. 32

29. WAIVER ............................................................................................... 33

30. COSTS AND EXPENSES........................................................................ 33

31. BINDING EFFECT ................................................................................ 33

32. INDEPENDENT ENTITIES .................................................................... 33

33. SEVERABILITY .................................................................................... 33

34. COMPLIANCE WITH LAWS.................................................................. 34

35. HEALTH, SAFETY & ENVIRONMENT....... 34

Attachments

Attachment I Scope of Work

Attachment II Contract Price and Payment Schedule

Attachment III Project Schedule

Attachment IV Deliverables

Attachment V Form of Bank Guarantee

Attachment VI Organisation Chart of the BIDDER

Attachment VII Schedule of Rates


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THIS AGREEMENT is entered into this day of , 2009 between:

(1) MISC BERHAD (Company No. 8178-H), a company incorporated in Malaysia andhaving its registered office at Level 25, Menara Dayabumi, Jalan SultanHishamuddin, 50050 Kuala Lumpur, Malaysia and shall include its subsidiaries(hereinafter referred to as MISC) of the one part; and

(2) (Company Name) (Co. No. ___________), a company incorporated in (Country)and having its registered office at (Address) (hereinafter referred to as theBIDDER) of the other part.

WHEREAS:

(A) MISC intends to engage the BIDDER for the provision of services for the design,development, integration, testing and implementation of a Data Warehouse andBusiness Intelligence System (hereinafter referred to as the BI PROGRAM) asfurther described in Attachment I.

(B) The BIDDER warrants that it is competent and has the requisite professionalexpertise, experience, knowledge and technical know-how for the provision of the BIPROGRAM and is willing and able to provide and perform the same in accordancewith the terms and conditions stipulated herein.

(C) The BIDDER hereby represents that it has studied and confirms that it fullycomprehends MISCs requirements as provided by MISC and detailed in thisAGREEMENT; and, as at the execution date of this AGREEMENT, has brought toMISCs attention all ambiguities, omissions and error in this AGREEMENT of whichthe BIDDER is aware of.

NOW, THEREFORE, for and in consideration of the premises and the mutual covenantsherein contained, the PARTIES hereto agree as follows:

1. DEFINITIONS

1.1 In this AGREEMENT, the following words and expressions shall have the meanings

hereby assigned to them except where the context otherwise specifies:

AGREEMENT means this document comprising the Preamble, Articles 1through 34, together with its ATTACHMENTS as originallyexecuted or as it may from time to time be supplemented,amended or otherwise modified in accordance with theterms and conditions herein contained.

ATTACHMENTS means ATTACHMENTS I, II, III IV, V, VI and VII of thisAGREEMENT.


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SIGN-OFFCERTIFICATE

means a document to be issued by BIDDER together withthe project deliverables at each project milestone which tobe signoff by MISC upon satisfactory completion of the

following and as further described in Clause 13 herein:

a) Project Deliverables as per each project milestoneaccordance with the PROJECT SCHEDULE;

b) the is duly tested, accepted and signoff by MISC as theuser; and

c) successful implementation and Go-Live of each releaseof the BI PROGRAM

CHANGE CONTROLPROCESS means the process set out in Article 25 for makingadditions or changes to the SCOPE OF WORK,DELIVERABLES, CONTRACT PRICE or any other matterunder this AGREEMENT.

COMPLETIONDATE

means the date of issuance of the CERTIFICATE OF FINALACCEPTANCE by MISC as provided in Article 13 of thisAGREEMENT and shall include the date by which theBIDDER is to provide the BI PROGRAM for Go-Live or suchextended date as may be granted un writing under thisAGREEMENT.

"CONFIDENTIALINFORMATION"

means any relevant information in relation to or inconnection with MISC and the PROJECT which shallinclude but not be limited to technical information likestructural or operational designs, interfaces and securityprocedures as well as proprietary or non-public informationabout product plans and strategies, promotions, clients,markets, suppliers, creditors and debtors and other non-technical business, financials, accounting, costing,purchasing and other management, commercial, servicesor operational related information which MISC considers tobe confidential in nature regardless of whether the same is

marked as confidential or otherwise, disclosed by MISC inwhatever form or storage medium.

CONTRACTPERIOD

Shall mean the period for the completion of the PROJECTas further described in Article 2 and ATTACHMENT III.

CONTRACT PRICE means the agreed price between the BIDDER and MISC ofthe PROJECT as more particularly described inATTACHMENT II and Article 7.


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DELIVERABLES means the tangible results but not limited to the BusinessRequirement Review and the BI PROGRAM to be providedby the BIDDER to MISC as further described in

ATTACHMENT IV;

"EFFECTIVE DATE" means the date of issuance of the Letter of Award to theBIDDER awarding the contract for the design,development, integration, testing and implementation ofthe BI PROGRAM, being mmddyyyy.

EQUIPMENT means the equipment listed in ATTACHMENTS I and IVwhich are required for the PROJECT (as hereinafterdefined).

MANDAYS means a minimum period of eight (8) hours of work perday including Saturday, Sunday and gazetted PublicHolidays in Malaysia.

"PARTY" means either MISC or the BIDDER and includes thePARTYs respective successors-in-title and permittedassignees, and PARTIES means both MISC and theBIDDER.

"PERSONNEL" means the BIDDERs personnel as described in Article 4.3of this AGREEMENT.

"PROJECT" means the conduct of the BUSINESS REQUIREMENTREVIEW, the provision of the services for the design,develop, integration, testing and implementation of a DataWarehouse and Business Intelligence System as morespecifically described in Attachment I;

PROJECTSCHEDULE

means the schedule for the execution of the SCOPE OFWORK pursuant to this AGREEMENT as described inATTACHMENT III;

"SCOPE OF WORK" Collectively refers to all such activities to be performed by

the BIDDER in relation thereto as more particularlydescribed in Article 3 and ATTACHMENT I.

SITES means the locations where the SCOPE OF WORK will beexecuted.

CERTIFICATE OFFINAL ACCEPTANCE

means a document to be issued by MISC after satisfactorycompletion of the following and as further described inArticle 13 herein:d) upon the BIDDERs operational demonstration of and

the capability of certain mutually agreed upon features

of the BI PROGRAM;


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e) the BI PROGRAM is duly tested and accepted by MISCas the user; and

f) after successful implementation and the BI PROGRAMgoes live for all the planned releases.

SOFTWARE means the necessary software and/or databases to bedeveloped by the BIDDER under the PROJECT inaccordance with ATTACHMENTS I and IV and to be ownedand managed by MISC.

USERS Means the business and service units of MISC as well asMISCs subsidiaries.

1.2 Unless the context otherwise requires:

1.2.1 the headings in this AGREEMENT are for convenience only and shall not bedeemed to be part hereof or be taken into consideration in the interpretationor construction of this AGREEMENT;

1.2.2 words importing the singular include the plural and vice versa;

1.2.3 words importing a gender include any gender;

1.2.4 an expression importing a natural person includes any company, partnership,joint venture, association, corporation or other body corporate and anygovernmental agency;

1.2.5 a reference to a clause, party, or attachment is a reference to a part andclause of, and a party, and attachment to, this AGREEMENT and a referenceto this AGREEMENT includes any ATTACHMENT;

1.2.6 a reference to any statute, regulation, proclamation, ordinance or by-lawincludes all statutes, regulations, proclamations, ordinances or by-lawsamending, consolidating or replacing them, and a reference to a statuteincludes all regulations, proclamations, ordinances and by-laws issued underthat statute;

1.2.7 a reference to a document includes an amendment or supplement to, orreplacement or novation of that document;

1.2.8 a reference to a party to any document includes that party's successors andpermitted assigns;

1.2.9 reference to a time and date concerning the performance of any obligationby a party is reference to the time and date in Malaysia;


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1.2.10 any express statement of a right of MISC under this AGREEMENT is withoutprejudice to any other right of MISC expressly stated in this AGREEMENT orarising at law; and

1.2.11 In the event of conflict between the terms and conditions of this AGREEMENTand any of the ATTACHMENTS, the provisions of the terms and conditions ofthis AGREEMENT shall to the extent of such conflict take precedence.

2. DURATION

Subject to the termination provisions under Article 15, this AGREEMENT shallcommence from the EFFECTIVE DATE and shall continue for a period of eighteen(18) months (hereinafter referred to as the CONTRACT PERIOD) or such other

period as may be mutually agreed in writing by both Parties on condition that thisAGREEMENT is duly signed, sealed, stamped and delivered to MISC.

3. SCOPE OF WORK AND DELIVERABLES

3.1 It is hereby agreed that the BIDDER will perform the SCOPE OF WORK of thePROJECT in accordance with ATTACHMENT I as well as the requirements of thisAGREEMENT which shall include but not limited to the activities and services relatedthereto.

3.1.1 procurement of services for the design, development, integration, testing andimplementation of the BI PROGRAM and the SOFTWARE of which thespecifications and components including usage rights, products, software,applications and office and network hardware as further described inATTACHMENTS I and IV; and

3.1.2 supply suitably qualified, experienced and competent PERSONNEL for theprovision of training, consulting services and post-implementation serviceswhich shall include but not be limited to system support and maintenanceservices for a period of two (2) months after MISC signoff for theCERTIFICATE OF FINAL ACCEPTANCE for the purpose thereof as furtherdetailed in ATTACHMENT I.

3.2 The BIDDER shall ensure the complete and timely delivery of all the DELIVERABLESas described in ATTACHMENT I herein in accordance with the schedule specified inPROJECT SCHEDULE.

3.3 The BIDDER shall, in accordance with the requirements of this AGREEMENT executethe SCOPE OF WORK at the SITES as stipulated by MISC.

3.4 The BIDDER shall obtain and maintain valid throughout the duration of thisAGREEMENT all required approvals from the relevant authorities in relation to theperformance of the SCOPE OF WORK.


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3.5 The progress of the PROJECT and any reports shall be presented to MISC at a timeto be determined and agreed by both PARTIES. MISC shall have the right to instructthe BIDDER to further refine the overall approach of the PROJECT and/or the

DELIVERABLES so as to achieve the overall PROJECT objectives provided that if suchchanges result in a material increase of the BIDDERs costs in providing the servicesunder this AGREEMENT, such changes will be made through the CHANGE CONTROLPROCESS.

3.6 Notwithstanding the above, MISC shall also have the right to instruct the BIDDER todiscontinue any approach or activities if MISC is of the opinion that there is a doubton the satisfactory performance of the relevant SCOPE OF WORK and/or the qualitydeliverables of BI PROGRAM and/or SOFTWARE or the performance by the BIDDERof its obligations under this AGREEMENT. In such instance, equivalent adjustmentshall be made to the CONTRACT PRICE payable.

4. OBLIGATIONS OF THE BIDDER

4.1 The BIDDER shall perform the SCOPE OF WORK specifically described inATTACHMENT I in accordance with the terms and conditions of this AGREEMENT.

4.2 The BIDDER shall at all times perform its obligations under this AGREEMENT anddeliver the DELIVERABLES in a professional and efficient manner, using all duediligence, care and skill, and in accordance with generally recognized internationalstandards suitable for MISCs requirements.

4.3 The BIDDER shall provide the intellectual capital, professional expertise, experienceand personnel to execute the PROJECT in accordance with this AGREEMENT forwhich purpose the BIDDER shall assign suitably qualified, experienced andcompetent personnel for the total duration of the PROJECT as core team membersof the working group or in an advisory function.

4.4 The BIDDERs organisational chart or list of PERSONNEL specification together withthe description of the scope of work to be performed by each of the saidPERSONNEL shall be as specified in ATTACHMENT VI.

4.5 The BIDDER shall ensure that all the PERSONNEL assigned to the PROJECT including

its servants or agents or employees or subcontractors shall at all times:

4.5.1 comply with all requirements that may be imposed by any laws, rules orregulation in so far as working in Malaysia is concerned that may be enforcedat the material time (as may be amended from time to time) and arequalified, experienced and competent to execute the SCOPE OF WORK;

4.5.2 when at SITE, comply with MISC rules and regulations as well as all suchrules, regulations, standards, requirements and other policies (includingthose related to security, administrative and safety arrangements) in force forthe conduct of personnel on those SITES;


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4.5.3 the PROJECT SCHEDULE and project organization.

4.6 MISC shall have the right to require the BIDDER to replace any PERSONNELassigned to the PROJECT If any of the PERSONNEL is found by MISC to be unfit toperform the SCOPE OF WORK due to incompetence, ill-health, misconduct, breach ofMISCs or statutory regulations (of local or foreign) or if MISC considers, on a bonafide, good faith basis that the performance of that PERSONNEL is unacceptable orhis attitude is detrimental to the success of the PROJECT or good personnel relationswithin MISC. Any replacement must be made within a reasonable time so as not todisrupt the progress and quality of the PROJECT and the new personnel shallpossess at least the equivalent level of experience and competency qualifications ifnot better, as that of the PERSONNEL that is being replaced and such replacementshall be at the cost of the BIDDER. The assignment of the new personnel as

aforesaid shall be subject to prior written consent of MISC.

4.7 In the event of incapacitation or resignation of PERSONNEL, the BIDDER shall notifyMISC promptly and shall immediately replace the particular PERSONNEL with aperson who possesses at least the equivalent level of qualifications, experience andcompetency, if not better, as that of the PERSONNEL subject to prior written consentof MISC..

4.8 The BIDDER shall ensure that any leave granted to its PERSONNEL shall not bematerially disruptive or to the material detriment of the PROJECT.

4.9 MISC shall be entitled upon giving seven (7) days notice to the BIDDER, to audit orinspect any part of the services under the SCOPE OF WORK performed by theBIDDER or the progress of such services provided that such audit does not disruptthe conduct of the BIDDER's professional activities hereunder. Should MISC be ofthe opinion that any part of such services are not performed satisfactorily and not inaccordance with Article 3 above, MISC shall notify the BIDDER of the same and theBIDDER shall forthwith immediately take all necessary steps to remedy thedeficiency or improve such services, at its own cost and expense.

4.10 The BIDDER shall ensure the adequacy, correctness and consistency of all data orinformation and material supplied, compiled and submitted under this AGREEMENTcomplies with the requirements of the services set out in ATTACHMENT I, III and IV.

4.11 The BIDDER further represents and warrants that it has studied and understandsMISCs requirements as provided by MISC and detailed in this AGREEMENT and, asat the execution date of this AGREEMENT, has brought to MISCs attention allambiguities, omissions and errors in this AGREEMENT which the BIDDER is aware of.

4.12 The BIDDER shall make available and ensure the effective transfer of knowledgerelating to methodology, processes, tools and techniques required in the PROJECT toMISC.

4.13 All materials, data or information furnished to the BIDDER by MISC relating to the


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PROJECT shall be returned to MISC promptly. Neither PARTY shall use the otherPARTY's name for advertising, promotional or make any oral and/or writtenstatement for presentation purposes to third parties without the prior written

consent of the other PARTY.

4.14 The BIDDER is to ensure that high level accuracy is attained in any data analysis.MISC on the other hand, shall make every reasonable effort to ensure that correctdata and/or information available shall be provided upon the BIDDER's request.

4.15 The BIDDER shall, on a regular basis, provide MISC with briefings, progress reportsand updates on the PROJECT status and related matters in accordance with theschedule of DELIVERABLES described in ATTACHMENT IV. The reports will beavailable in electronic form for future use.

4.16 The BIDDER shall perform the PROJECT with due care to safeguard the interest ofMISC and MISCs interest and rights under this AGREEMENT and take all necessaryand proper steps to prevent any abuse or uneconomical use of facilities, if any;made available by MISC to the BIDDER.

4.17 The BIDDER shall provide a project plan with MANDAYS and supporting planningdocuments to the satisfaction of MISC before the commencement of the PROJECT.

4.18 The BIDDER shall be responsible to gather and consolidate all information and dataand take all necessary steps to ensure efficient performance of the PROJECT.

4.19 The BIDDER shall advise MISC immediately in writing as soon as any issues ariseswhich is likely to affect the PROJECT and the steps to be taken to resolve it. Suchnotification shall not be construed as a discharge of any of the BIDDERs obligationsunder this AGREEMENT. BIDDER though having advised MISC, shall exercise theirdiscretion to resolve the said issues by taking all reasonable, practical andeconomical steps in resolving the matter. Should the BIDDER fail to advise MISCimmediately then MISC may at its own discretion decide that such issues areattributable to the BIDDER.

5. RIGHTS AND OBLIGATIONS OF MISC

5.1 MISC may assign appropriate personnel to participate in the PROJECT so as toensure effective transfer of knowledge, technology, skills, knowledge and expertisefrom the BIDDER to MISC. However, participation of MISC's personnel shall not inany way relieve or exonerate the BIDDER of its responsibilities and obligations underthis AGREEMENT.

5.2 MISC shall provide where available at no cost to the BIDDER the following servicesand facilities for the PERSONNEL assigned by the BIDDER at MISCs office:

5.2.1 reasonable office space; and


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5.2.2 normal office facilities as available for use at MISC's office, consistent withthe normal standards provided by MISC to its own employees.

5.3 MISC will provide BIDDER with access to, and use of, all information, data, anddocumentation, deemed necessary by BIDDER to fulfill the SCOPE OF WORK.

5.4 MISC may appoint a project manager to meet with the BIDDER at regular intervalsto be agreed upon to review progress and resolve any issues relating to the SCOPEOF WORK or DELIVERABLES.

6. COMMENCEMENT

6.1 BIDDER shall commence work immediately from the EFFECTIVE DATE of the

AGREEMENT in accordance with the PROJECT SCHEDULE. In the event of any delayby the BIDDER in the completion of any portion of the SCOPE OF WORK, theBIDDER shall bear all additional costs incurred by BIDDER during the extendedperiod.

6.2 Should any factor, which is likely to delay completion of the PROJECT within theperiod specified in Article 6.1 arise, the BIDDER shall immediately without delaynotify MISC in writing and apply for an extension of the PROJECT SCHEDULE andMISC shall at its own discretion determine the length of such extension. Thisnotification shall not in any way release the BIDDER of its obligations pursuant toArticle 11.

6.3 No adjustment to the PROJECT SCHEDULE and/or the CONTRACT PRICE shall bemade pursuant to this AGREEMENT, except by written approval of MISC and subjectto the provisions of Article 25 of this AGREEMENT. Such notification shall not beconstrued as a discharge of any of the BIDDERs obligations under this AGREEMENT.

6.4 If delay in the completion of the PROJECT arises for which the BIDDER isresponsible, MISC shall have the right to require the BIDDER and the BIDDER shall,without any additional cost to MISC, take all necessary measures reasonablyrequired including assigning more of its employees and/or working overtime in orderto mitigate or eliminate such delay in the completion of the PROJECT and any impactas a result thereof.

7. CONTRACT PRICE

7.1 In consideration of the satisfactory performance of the SCOPE OF WORK inaccordance with this AGREEMENT, MISC shall pay the BIDDER the CONTRACT PRICEas indicated in ATTACHMENT II herein.

7.2 No other fees, costs tax and expenses shall be payable by MISC to BIDDER otherthan that expressly specified herein.


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8. TERMS OF PAYMENT

8.1 The BIDDER shall submit invoices for works completed together with supporting

documents within five (5) working days from the completion of the respectivemilestones as specified in ATTACHMENT IV to the satisfaction of MISC. Such invoicestogether with all supporting documentation shall be signed and verified by MISCsauthorised personnel. MISC shall upon verification of the supporting documents,make payment for undisputed items in such invoices within forty five (45) days afterreceipt of the invoices. If the forty-fifth (45th) day falls on a Sunday, banking holidayor gazetted public holiday in Malaysia, the next working day shall be deemed to bethe due date for payment. Payments in respect of disputed items shall be withheldby MISC until the settlement of the dispute by mutual agreement or in accordancewith Article 20. All payments made by MISC shall not preclude the right of MISCfrom thereafter disputing any of the items invoiced.

8.2 All invoices shall indicate the contract number and title and shall be submitted in one(1) original and one (1) copy each completed with the necessary supportingdocumentation required by MISC and shall be addressed to:

MISC BERHADLEVEL 22, MENARA DAYABUMIJALAN SULTAN HISHAMUDDIN50050 KUALA LUMPUR, MALAYSIA

(ATTN: General Manager, ICT)

8.3 The CONTRACT PRICE shall be paid in the Ringgit Malaysia equivalent by telegraphictransfer to the BIDDER's bank account in Kuala Lumpur as advised in writing by theBIDDER.

8.4 MISC reserves the right to withhold or suspend any payment due to the BIDDER forany of the following reasons:

8.4.1 If any of the BIDDERs invoices do not include the supporting documentsrequired by MISC;

8.4.2 On account of defects in the BI PROGRAM or the SOFTWARE or any part of

the SCOPE OF WORK and not remedied by the BIDDER;

8.4.3 unsatisfactory performance of the AGREEMENT;

8.4.4 the filing of claims against MISC caused by acts or omissions of the BIDDER;or

8.4.5 failure of the BIDDER to pay amounts when due to subcontractors of theBIDDER in connection with this AGREEMENT.


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8.5 If applicable, MISC shall have the right to withhold from any payment due or thatmay become due to the BIDDER under this AGREEMENT for the purpose of settlingtaxes on income, excess profit, royalty and other taxes, to the extent that such

withholding is required by the Government of Malaysia or any relevant authoritiesthereof. Payment by MISC to the respective governmental office of the amount ofmoney so withheld will relieve MISC from any further obligation to the BIDDER withrespect to the amount so withheld. MISC shall not be liable for any additional costs,loss or expenses incurred by the BIDDER due to, or arising from, such withholding.

8.6 Should MISC dispute any amount in any invoice, it shall notify the BIDDER withinfourteen (14) days of receipt of such invoice, specifying the nature of the disputeand reserving the right to withhold the payment of the disputed amount untilsettlement of the dispute or remedial actions have been taken. All amounts notdisputed by MISC shall be paid in accordance with this Article 8. All payments made

by MISC shall not preclude MISC from thereafter disputing any of the amounts paidhereunder.

8.7 In the event of dispute or any claims on defect being made by MISC, MISC shall beentitled to deduct a sum equivalent to the disputed amount from monies due to theBIDDER pending the determination of all claims in respect of such monies.

8.8 Payments made under this AGREEMENT shall not constitute an admission by MISCas to the performance by the BIDDER of its obligations hereunder and in no eventshall any such payment affect the warranty obligations of the BIDDER. Anypayments shall be without prejudice to any other rights or remedies available toMISC under this AGREEMENT or at law.

8.9 For the avoidance of doubt, other than the CONTRACT PRICE expressly specified inthis Articles 7 and 8, no other sums shall be due and payable to the BIDDER.

9. PERFORMANCE BOND

9.1 Bank Guarantee9.1.1 As guarantee for the due performance by the BIDDER of its obligations under

this AGREEMENT, the BIDDER shall, within seven (7) days from the

EFFECTIVE DATE of this AGREEMENT, provide MISC with an unconditionaland irrevocable first call bank guarantee in the exact form and content asprovided for in Attachment V herein issued by a bank registered andoperating in Malaysia that is acceptable to MISC, for a sum equivalent to fivepercent (5%) of the CONTRACT PRICE for the performance of the SCOPE OFWORK and obligations by the BIDDER pursuant to and in accordance withthis AGREEMENT.

9.1.2 The bank guarantee shall be binding on the BIDDER, notwithstanding anyvariation, alterations or extensions of time as may be made, given, concededor agreed upon under this AGREEMENT. The costs and expenses of


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preparing, completing and stamping such bank guarantee shall be borne bythe BIDDER.

9.1.3 If the bank guarantee is not duly furnished by the BIDDER to MISC within theabove prescribed period, MISC may at its option and without prejudice to anyother rights or claims it may have against the BIDDER under theAGREEMENT or at law and equity, by reason of the BIDDERs non-compliance with any of the provisions of this Article:

(a) Terminate this AGREEMENT by notice in writing to the BIDDER asfurther provided in Article 15; or

(b) Have the right to withhold any payment that is due or that maybecome due to the BIDDER.

9.1.4 The BIDDER shall promptly, upon request by MISC, revise the bankguarantee amount to correspond to any increase in the CONTRACT PRICEduring the validity period as provided in Article 9.1.5 below.

9.1.5 The BIDDER shall ensure that the bank guarantee shall remain valid for theentire duration of the performance of the SCOPE OF WORK, commencingfrom the EFFECTIVE DATE until:

(a) Three (3) months after the expiry of the WARRANTY PERIOD; or(b) Three (3) months after termination of this AGREEMENT; or(c) Until the resolution of all disputes arising under this AGREEMENT or

relating to the validity, interpretation and/or performance orenforcement thereof which arise before or after the issuance of theSIGN-OFF CERTIFICATE or the CERTIFICATE OF FINAL ACCEPTANCE,

whichever is applicable.

9.1.6 Should the bank guarantee required to be furnished pursuant to this Articleexpire within the required validity period as provided in Article 9.1.5 above,the BIDDER shall, not less than fourteen (14) days before the date of expiry,

provide a new bank guarantee in similar format and the same amount of thatpreviously provided, except for a revised expiry date of the new bankguarantee. Should the BIDDER fail to provide the new bank guarantee asrequired, the provisions of Article 9.1.3 shall be applicable. MISC shall alsohave the additional right, without prejudice to all its other rights under theAGREEMENT or the law and equity, to call on the existing bank guarantee.


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10. LIABILITY AND INDEMNITY

10.1 The BIDDER shall be responsible for and shall indemnify, defend and hold harmless

MISC from and against all loss or damage to and/or caused by the DELIVERABLES,BI PROGRAM and SOFTWARE supplied and developed by BIDDER and/or during theperformance of the SCOPE OF WORK or any part thereof, and the BIDDER shallmake good any such loss or damage unless such loss or damage was due to thegross negligence or willful default of MISC.

10.2 The BIDDER shall be absolutely liable for, and shall indemnify, defend and holdharmless MISC against all claims in respect of all injuries to, including death of orloss or damage to all property of any of the BIDDER's or its subcontractorsemployees and PERSONNEL, servants or agents, or third parties howsoever causedin the course of or arising from the execution of this AGREEMENT.

10.3 The BIDDER shall be liable for and shall indemnify, defend, and hold harmless MISC,and its owned, controlled, affiliated, and subsidiary companies and the directors,agents, employees, and representatives of each from and against any and all claims,demands and causes of action brought by any third party, including but not limitedto officers, agents, employees, representatives, and subcontractors of MISC or of theBIDDER and against any and all judgments in respect thereto on account of propertydamage, injury, death, destruction, or loss caused by the negligence, acts, defaultsand/or omission of the BIDDER or its subcontractors officers, employees, agents orrepresentatives. However, the BIDDER shall not be responsible for, nor indemnifyand hold MISC harmless from injury, death, or property damage caused by the soleand gross negligence or willful default of MISC.

10.4 The BIDDER shall be fully responsible for and liable to any damage or destruction toMISCs property arising from or in connection with the performance of the SCOPE OFWORK.

10.5 The BIDDER shall be responsible for and shall hold harmless and indemnify MISC, itsofficers, employees and/or agents from against any and all liability, loss or expenseby reason of any claim, action or litigation in respect of any patent, copyright,trademark or other intellectual property rights (foreign or domestic), resulting fromany of the DELIVERABLES and the performance of the AGREEMENT by the BIDDER.

10.6 Notwithstanding anything contained to the contrary, the BIDDER shall be liable to

MISC for any loss of or damage to MISCs data as a result of any act, omission ornegligence of the BIDDER or its subcontractors or their respective employees,personnel or agents.

10.7 In no event shall either the BIDDER or MISC be liable for any incidental, indirect,exemplary, special or consequential damages whatsoever (which shall include butnot be limited to damages for lost profits, income or savings, goodwill, anticipatedsavings or interruption of business) that may be suffered or incurred by the otherPARTY or any person or entity affiliated or associated with the other PARTY, even ifadvised of the possibility of such damages.


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11. DELAY AND LIQUIDATED DAMAGES

11.1 Time is of essence of this AGREEMENT.11.2 The BIDDER shall complete the SCOPE OF WORK in accordance with the

requirements of this AGREEMENT on or before the time stipulated in the PROJECTSCHEDULE herein or as reasonably required by MISC.

11.3 MISC shall issue the SIGN-OFF CERTIFICATE and/or the CERTIFICATE OF FINALACCEPTANCE, as the case may be, upon satisfactory completion of the SCOPE OFWORK respectively in accordance with the requirements of this AGREEMENT.

11.4 In the event of any anticipated delay, BIDDER shall inform MISC in writing of thecause of delay and its expected duration. BIDDER shall take the appropriate steps to

mitigate such delay.

11.5 If the BIDDER fails to complete the SCOPE OF WORK or any part thereof on orbefore the scheduled completion date in accordance with the PROJECT SCHEDULEherein, including delay as a result of failure to meet the required service level orpoor quality as stipulated in Article 14.8, the BIDDER shall pay or MISC shall havethe right to deduct as liquidated damages an amount equal to Ringgit Malaysia TwoThousand Five Hundred (RM 2,500.00) for each day of delay.

11.6 The BIDDER and MISC agree that the total amount deductible from the CONTRACTPRICE for liquidated damages under this Article shall not in aggregate exceed tenpercent (10%) of the CONTRACT PRICE.

11.7 The BIDDER and MISC hereby acknowledge the difficulties in ascertaining the exactand accurate amount of loss and/or damages that MISC will sustain by reason ofsuch delay and therefore agree that the liquidated damages agreed hereinrepresents a fair and reasonable compensation to MISC.

11.8 MISC may, without prejudice to any other method of recovery, deduct the amount ofsuch damages from any payment due or which may become due to the BIDDER.The deduction of such damages shall not relieve the BIDDER from its obligations andliabilities under this AGREEMENT.

12. INSURANCE

12.1 Without limiting or reducing the BIDDER's liability and responsibility as containedelsewhere in this AGREEMENT, the BIDDER shall upon execution of thisAGREEMENT, at its own expense procure and maintain in force the followinginsurances:-

12.1.1 Workmen's Compensation and/or Employer's Liability, for all its employeesengaged in accomplishing the SCOPE OF WORK, shall procure and maintain


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employer's liability and/or workmen's compensation insurance and/or similarstatutory social insurance in accordance with the applicable law.

12.1.2 Adequate medical insurance, accident, travel sickness and health anddisability insurance for its employees and PERSONNEL engaged in thePROJECT including professional indemnity insurance and such insurancecover as required by the laws of Malaysia and the laws of any other relevantcountry in respect of those employees of the BIDDER that are assigned tothe PROJECT.

12.1.3 General Liability - the BIDDER shall carry and maintain general liabilityinsurance providing indemnity coverage for all persons injured or killed andfor loss of or damage to tangible personal property resulting from anyoccurrence in connection with the SCOPE OF WORK.

12.1.4 Professional Negligence - the BIDDER shall carry and maintain insurance forprofessional negligence for any loss of or damage resulting from anyoccurrence in connection with the SCOPE OF WORK.

12.1.5 Such other insurances which may be relevant, necessary and/or may berequired by any law(s) to which the BIDDER and/or its subcontractors aresubject to or as required to cover the risks and liabilities taken up by theBIDDER in this AGREEMENT.

12.2 If the BIDDER subcontracts any of the SCOPE OF WORK, the responsibility andinsurance provisions of each subcontract shall be as required hereunder. TheBIDDER shall ensure that its subcontractors maintain insurance as required in thesubcontracts during the course of subcontractors' operations.

12.3 The BIDDER shall cause MISC and its parent companies, subsidiaries, affiliates,shareholders, consultants and their respective directors, board members, agents,officers and employees to be included as additional assured and covered by allinsurance as stipulated in this Article with respect to the SCOPE OF WORK conductedunder this AGREEMENT and shall cause the insurers thereof to waive all express orimplied rights of subrogation against such parties and their respective directors,employees, officers and agents.

12.4 All deductibles, exceptions and exclusions applicable to the foregoing insurance shallbe for the account of and be paid by the BIDDER. Any breach of conditions and/orwarranties contained in such policies of insurance shall also be for the account of theBIDDER.

12.5 The BIDDER shall also permit MISC to examine the original insurance policies or atMISCs option to furnish MISC with copies of such policies certified by the insurerand issued in compliance with the requirements hereof. Should the BIDDER at anytime neglect or refuse to provide any insurance required herein,or should any insurance be canceled, MISC shall have the right to procure suchinsurance at the BIDDER's cost.


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12.6 The BIDDER and its subcontractors shall not commence the services in accordancewith the SCOPE OF WORK until all of the insurance that the BIDDER is required to

provide are in force.

12.7 The BIDDER shall give written notice as soon as possible to MISC, and in any eventnot later than seven (7) days after the event, of all accidents in connection with theSCOPE OF WORK for which there is an insurance claim. In the event of a seriousaccident (including, but not limited to, death or serious injuries) notice shall be givenimmediately and confirmed in writing.

13. COMPLETION AND CERTIFICATE OF FINAL ACCEPTANCE

13.1 The SCOPE OF WORK shall be performed in accordance with the provisions of thisAGREEMENT to the full satisfaction of MISC, who shall, in all cases, determine theamount, quality, acceptability and fitness of the DELIVERABLES, BI PROGRAMand/or SOFTWARE. MISC shall, within the SCOPE OF WORK, decide on all mattersor questions, which arise as to the performance and fulfillment of the AGREEMENT,and its decision thereon shall be final.

13.2 As soon as the SCOPE OF WORK has been completed by the BIDDER, the BIDDERshall give MISC written notice that it considers the SCOPE OF WORK to be completedaccording to the requirements of the AGREEMENT. Upon receipt of such notice,MISC shall perform such test on the DELIVERABLES, BI PROGRAM and SOFTWAREas it deems appropriate. MISC shall respond in writing to the BIDDER whether toaccept or reject the DELIVERABLES, BI PROGRAM and/or SOFTWARE.

13.3 If MISC does not accept that the DELIVERABLES, BI PROGRAM and/or SOFTWARE,in full or in part, are complete as stipulated in the AGREEMENT, the BIDDER shallremedy the deficiencies and complete it at its own cost and thereafter shall againgive MISC notice in writing that it considers the SCOPE OF WORK to be completed.

13.4 If MISC agrees that the SCOPE OF WORK has been completed and theDELIVERABLES, BI PROGRAM and SOFTWARE are in order, MISC shall confirm thesame in writing.

13.5 MISC shall issue the CERTIFICATE OF FINAL ACCEPTANCE after successfulimplementation and the PROJECT goes live.

14. WARRANTY

As at the EFFECTIVE DATE, the BIDDER warrants as follows:

14.1 BIDDERs Expertise


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The PERSONNEL and other employees of the BIDDER are qualified, competent andpossess the relevant experience and capability to perform the SCOPE OF WORK inaccordance with the requirements of this AGREEMENT.

14.2 Services

The BIDDER shall ensure that the performance of the SCOPE OF WORK under thisAGREEMENT is undertaken and completed using proven good practice, and acceptedprofessional standards and codes of practice and regulations which are in force orare likely to be in force during the performance of the SCOPE OF WORK hereunder.The BIDDER shall provide adequate staff having proper skills and qualificationsequivalent to accepted industry standards to work on the project and to successfullyperform its obligations under this AGREEMENT. The BIDDER warrants that theSCOPE OF WORK shall be performed with due diligence, skill and care and shall be

in accordance with the terms of this AGREEMENT.

14.3 Staff

The staff of the BIDDER shall not be substituted without valid reasons and priorapproval from MISC once they have started work under this Agreement. MISC shall,as far as reasonably practicable, not substitute MISCs staff allocated to the projectbut in the event MISC is of the view that such substitution is required for whateverreason, MISC shall inform the BIDDER accordingly.

14.4 Obligation to cooperate

14.4.1 the BIDDER shall not materially disrupt other operations of MISC inimplementing the DELIVERABLES and executing the SCOPE OF WORK.

14.4.2 the BIDDER agrees at all times to:

(a) cooperate, communicate and coordinate with MISC, its appointedvendors and consultants for the purposes of performing its obligationsunder this AGREEMENT; and

(b) acknowledge that the principal objective of this AGREEMENT is theeconomical and timely completion of the BIDDERs obligations

hereunder and recognizes that the provisioning of the SCOPE OFWORK and the DELIVERABLES hereunder will require the closestcooperation, communication and coordination between itself, MISC,and approved third party vendors. The BIDDER undertakes to assistMISC by providing consultation services and warrants to ensure thatcooperation communication and coordination between itself, MISC,and approved third party vendors for the timely completion of TheBIDDERs obligations under this AGREEMENT;


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14.5 Virus

14.5.1 The BIDDER warrants that it shall to its best endeavors ensure that the BI

PROGRAM and the SOFTWARE provided under this AGREEMENT shall be freeof viruses and/or other contaminants and use such information, knowledgeand technology regarding the latest known virus and/or other contaminantsto scan and eradicate all latest known viruses and/or other contaminantsfrom the BI PROGRAM and SOFTWARE immediately prior to theCOMPLETION DATE. The BIDDER agrees that where a virus and/or othercontaminants is introduced into the BI PROGRAM or the SOFTWARE due tothe fault of the BIDDER during the course of this AGREEMENT, the BIDDERshall eradicate the virus from the whole or any part of the BI PROGRAM orthe SOFTWARE until the BI PROGRAM or the SOFTWARE is virus free at nocharge to MISC.

14.5.2 all physical media prepared by BIDDER containing the DELIVERABLES shallbe examined with commercially available and free of viruses andinfringement of any intellectual property rights prior to its installation at theSITES; and

14.5.3 all hardware, SOFTWARE, BI PROGRAM and/or EQUIPMENT (if any) used orincorporated into this PROJECT shall be free from any encumbrances andthat MISCs use or possession of the same shall not constitute anyinfringement of any third partys intellectual propertys rights.

14.6 Conformance and Compatibility

14.6.1 The BIDDER warrants that the DELIVERABLES, BI PROGRAM and theSOFTWARE shall be fit for its intended purpose, are in good working orderand shall be free from design defect or material defect or defectiveworkmanship and shall perform as described in the AGREEMENT.

14.6.2 The BIDDER shall, for the duration of this AGREEMENT, ensure that theDELIVERABLES, BI PROGRAM and the SOFTWARE are in good working orderand shall be free from defects due to design and/or material and/or defect inworkmanship and in the event the abovementioned defects are discovered orreported to the BIDDER, the BIDDER shall be obligated to remedy the same

at the BIDDERs sole cost and expense.

14.7 Warranty Period, Maintenance and Support

14.7.1 The BIDDER shall, at its own cost and expense, provide all necessary actionand support and equipment to resolve all defects or flaws in theDELIVERABLES, BI PROGRAM and/or the SOFTWARE or any non-conformance with the AGREEMENT identified or found during the course ofthis AGREEMENT.


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14.7.2 The warranty for the services in accordance with the SCOPE OF WORK whichinclude the DELIVERABLES, BI PROGRAM and the SOFTWARE shallcommence after issuance of the CERTIFICATE OF FINAL ACCEPTANCE and

shall remain in full force and effect for a period of six (6) months thereafter(hereinafter referred to as the "WARRANTY PERIOD").

14.7.3 Provided MISC gives BIDDER written notice during the WARRANTY PERIODof a material defect or error in the SCOPE OF WORK or the DELIVERABLES,BI PROGRAM and/or the SOFTWARE, respectively, the BIDDER shall, at itsown cost and expense, take those actions to correct or replace such defect orerror even if such correction or replacement occur after the expiry of theWARRANTY PERIOD.

14.7.4 The BIDDER shall be contractually obligated to remedy defects and errors

reported by MISC during the WARRANTY PERIOD at the BIDDERs own costsand expenses.

14.7.5 During the WARRANTY PERIOD, the BIDDER shall at its own cost and subjectto the terms of this Article:

(a) provide solutions relating to any known problem with the currentfunctioning of the DELIVERABLES, BI PROGRAM and/or theSOFTWARE in an efficient manner;

(b) supply corrections for problems that the BIDDER diagnoses as defectsin a currently supported version of the DELIVERABLES, BI PROGRAMand/or the SOFTWARE.

(c) provide telephone support in the form of counsel and advice on useand maintenance of the DELIVERABLES, BI PROGRAM and/or theSOFTWARE.

(d) provide new releases of the DELIVERABLES, BI PROGRAM and/or theSOFTWARE free of charge to MISC.

(e) provide all materials, parts and labour in connection therewith withoutany costs to MISC.

14.8 Quality

14.8.1 Quality is an essence of this AGREEMENT. The BIDDER shall maintain anobjective quality program for the DELIVERABLES and services suppliedpursuant to this AGREEMENT.

14.8.2 The BIDDER shall ensure that the DELIVERABLES, BI PROGRAM and theSOFTWARE are, at all times, free of interruptions causing or resulting in MISCbeing unable to perform its functions.


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14.8.3 MISC may also perform random quality checks of the BIDDERs Servicespursuant to this AGREEMENT. The BIDDER shall provide a timely responseand correction to any quality issues identified.

14.8.4 The BIDDER agrees that MISC has absolute right to determine whether theBIDDER has failed to meet the quality expected by MISC, which decision shallbe final and deemed as conclusive evidence that the BIDDER has failed tomeet MISCs requirements in terms of quality.

14.9 Post Implementation SupportBIDDER shall provide post implementation support for the PROJECT for a period oftwo (2) months after the issuance of the CERTIFICATE OF FINAL ACCEPTANCE asspecified in the SCOPE OF WORK.

15. TERMINATION OF AGREEMENT

15.1 In the event that either PARTY is in breach of its obligations under this AGREEMENT,without prejudice to any other rights or remedies available to the PARTY not inbreach under this AGREEMENT or at law, the PARTY not in breach may give thePARTY in breach fourteen (14) days notice, or such other longer period as may bemutually agreed in writing by the PARTIES, to rectify such breach. If at the end ofthe notice, the breach has not been rectified, the PARTY not in breach mayterminate this AGREEMENT with immediate effect.

15.2 Notwithstanding Article 15.1, either PARTY shall be entitled to terminate theAGREEMENT immediately if the other PARTY ceases to do business, becomesinsolvent, enters into liquidation or any arrangement or composition with theircreditors or if a receiver or administrator or similar official is appointed against anyof the assets or business of that PARTY.

15.3 Notwithstanding anything contained in this Agreement, MISC may terminate thisAgreement at any time and without assigning any reason thereto by giving thirty(30) days prior written notice to the BIDDER.

16. EFFECT OF TERMINATION

16.1 Upon termination of this AGREEMENT for any reason, the BIDDER shall eitherimmediately or upon such other date as is specified in the notice:

16.1.1 bring the items of the PROJECT already started to a close in a prompt andorderly manner and discontinue making commitments for the PROJECT;

16.1.2 deliver to MISC or its nominee all calculations, reports and all other final workproduct paid for by MISC and prepared by the BIDDER specifically fordelivery to MISC in connection with the PROJECT and all documents,


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drawings, data and any other material supplied by MISC in connection withthe PROJECT as well as all copies made thereof; And

16.1.3 return to MISC all CONFIDENTIAL INFORMATION in its possession or furnishevidence of its destruction satisfactory to each other.

16.2 In the event this Agreement is terminated pursuant to Article 15.1, the BIDDER shallbe liable for all direct expenses incurred by MISC as a result of this termination savefor payment for the services forming part of the SCOPE OF WORK received up to thedate of termination which is payable by MISC.

16.3 In the event of termination of this Agreement pursuant to Article 15.3, MISC shallpay the BIDDER for all portions of the SCOPE OF WORK completed up until the dateof termination, including the work in process and any cost reasonably incurred by

the BIDDER directly resulting from the termination and the BIDDER shall refund anyfee that was paid in advance but has not been utilised. Any payment by the BIDDERto MISC according to this AGREEMENT or as adjudicated, and anyorder/judgment/award adjudicated shall be settled within thirty (30) days from thedate of termination.

16.4 MISC shall not be liable for any claim for loss of anticipated profits or damages for,on account of, or arising from termination of this AGREEMENT.

16.5 The BIDDER shall hold harmless and indemnify MISC from and against any actions,damages, claims, demands and/or proceedings (including legal cost on clientsolicitors basis) whatsoever made or filed by the BIDDER and/or third partiesretained by the BIDDER in connection with the termination of this Agreementpursuant to this Article.

16.6 It is hereby understood by the PARTIES that termination shall not affect eitherPARTYs accrued rights or liabilities under this AGREEMENT.

17. CONFIDENTIALITY

17.1 During the term of this AGREEMENT, the BIDDER may receive or have access toCONFIDENTIAL INFORMATION.

17.2 Neither the BIDDER nor its PERSONNEL or employees shall during or after the periodof this AGREEMENT, except for purposes of fulfilling their respective obligationsunder this AGREEMENT, reproduce, copy, use and/or disclose to, place at thedisposal of, use on behalf of or enable perusal by, a third party or any otheremployees of the BIDDER who do not have a direct and legitimate interest in thefulfillment of this AGREEMENT the CONFIDENTIAL INFORMATION received orotherwise obtained by BIDDER in the performance of this AGREEMENT.

17.3 CONFIDENTIAL INFORMATION may be used by the BIDDER only with the respect tothe performance of its obligations under this AGREEMENT, and only by those


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PERSONNEL; employees or subcontractors who have a need to know suchinformation solely for purposes related to the BIDDERs performance of itsobligations under this AGREEMENT, provided that such subcontractors have signed

separate agreements containing substantially similar confidentiality provisions.

17.4 The BIDDER will protect the CONFIDENTIAL INFORMATION of MISC by using thesame degree of care (but not less than a reasonable degree of care) that theBIDDER uses to protect its own confidential information of similar nature to preventthe unauthorized use, dissemination or publication of such CONFIDENTIALINFORMATION.

17.5 The obligations stated in this Article 17 will not apply to any information which is:

17.5.1 Already known by the BIDDER prior to disclosure;

17.5.2 Publicly available through no fault of the BIDDER;

17.5.3 Rightfully received from a third party without a duty of confidentiality;

17.5.4 Disclosed by MISC to a third party without a duty of confidentiality on suchthird party;

17.5.5 Independently developed by the BIDDER prior to or independent of thedisclosure;

17.5.6 Disclosed by the BIDDER with MISCs prior written approval; or

17.5.7 Disclosed under compulsion of law.

17.6 The BIDDER undertakes to ensure that its PERSONNEL or any of its employees,servant or agent shall not disclose, divulge or reveal any CONFIDENTIALINFORMATION, data, drawings, specifications or documentation whatsoever relatingto the PROJECT and/or business and affairs of MISC to any third party or anyunauthorized person and hereby covenants to take all necessary actions to ensurethat this undertaking shall be binding upon all its employees, agents and personsacting on its behalf pursuant to this AGREEMENT.

17.7 The PARTIES recognise and agree that monetary damages may not be an adequate

remedy for breach of this Article by the BIDDER or any of its PERSONNEL,employees, servant or agent. MISC shall be entitled to seek equitable relief,including seeking specific performance or injunctive relief in the event of any breachof the provisions of this Article by the BIDDER or any of its PERSONNEL, employees,servant or agent. Such remedies shall not be deemed exclusive to and shall beadditional to all other remedies available to MISC at law or equity.

17.8 The BIDDER undertakes to use the CONFIDENTIAL INFORMATION solely for thepurposes of executing the SCOPE OF WORK pursuant to this AGREEMENT or anyrelated matter that may arise from this AGREEMENT.


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17.9 The BIDDER agrees not to exploit such CONFIDENTIAL INFORMATION to obtaincommercial gains.

17.10 The obligations contained in this Article shall be continuing obligations during theduration of and for a period five (5) years after the expiry of this AGREEMENTandshall remain in force notwithstanding the expiration or early termination of thisAGREEMENT so long as the information regarding the operations of MISC and theCONFIDENTIAL INFORMATION does not come in the realm of public knowledgefrom sources other than the BIDDER or its employees.

18. INTELLECTUAL PROPERTY AND INDEMNIFICATION

18.1 The BIDDER shall indemnify MISC and hold MISC harmless from and against all

actions, claims, demands, costs charges, expenses and liabilities claimed or allegedby a third party arising from any infringement or alleged infringement of the thirdpartys patent, design, copyright, trade marks or other intellectual property rightsarising out of or in connection with the performance of this AGREEMENT by theBIDDER.

18.2 The BIDDER shall promptly notify MISC if it is or becomes aware of any suchinfringement or alleged infringement, or any matter that may give rise to a claim forinfringement. In such event, MISC shall have the right to require the BIDDER, at noadditional cost to MISC, to reasonably amend or alter the PROJECT or theperformance thereof in such manner as to avoid infringement whether actual,alleged or potential.

18.3 Intellectual property rights in all the USER REQUIREMENT STUDY, DELIVERABLES,LICENSED PROGRAM, and SOFTWARE which are produced, developed, designed orcreated or acquired by the BIDDER or any predecessor firm either before or duringthe course of the engagement including systems, methodologies, software,procedures, management tools, workshops, manuals, data files, concepts, ideas,inventions know-how and working papers in the course of this AGREEMENT shallvest in MISC.

18.4 The BIDDER shall not use any of the intellectual property rights stipulated in Article18.3 herein without prior written approval from MISC. MISC at its discretion may

grant the license to use the intellectual property rights to the BIDDER.

19. TAXES

19.1 The BIDDER shall be responsible for obtaining all necessary import permits inrelation to the SCOPE OF WORK.

19.2 The CONTRACT PRICE shall be inclusive of all taxes.

19.3 MISC shall not be liable for any taxes impose on the BIDDER arising out of or inconnection with this AGREEMENT.


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20. DISPUTE RESOLUTION

20.1 The PARTIES hereby agree that any dispute which may arise in connection with the

activities contemplated in this AGREEMENT on the application, implementation,validity, breach or termination of this AGREEMENT or any provision thereof whetherresulting from a claim in contract, tort or otherwise shall be finally and exclusivelysettled in accordance with the United Nations Commission on International TradeLaw Arbitration Rules (UNCITRAL) at the Kuala Lumpur Regional Centre forArbitration.

20.2 The number of arbitrator presiding the matter shall be one (1) to be appointed bythe President of Kuala Lumpur Regional Centre for Arbitration.

20.3 The language of such arbitration proceedings shall be in English and

20.4 The award of the arbitrators shall be final and binding on the PARTIES.

21. GOVERNING LAW

This AGREEMENT shall be governed by and construed in all respects in accordancewith the laws of Malaysia.

22. FORCE MAJEURE

22.1 Neither PARTY shall be in breach of this AGREEMENT if there is any total or partialfailure of performance of its duties and obligations under this AGREEMENToccasioned by a Force Majeure Event.

22.2 For the purposes of this AGREEMENT, a "Force Majeure" shall mean an occurrencebeyond the control and without the fault or negligence of the PARTY affectedincluding, but not limited to, acts of God, federal or state legislation, ministerialaction having the force of law, war, civil commotion, insurrection acts of the publicenemies; expropriation or confiscation of facilities; war, rebellion, sabotage or riots,embargo, floods or unusually severe weather that could not reasonably have beenanticipated; fires, explosions, or other catastrophes; or other similar occurrences

which are not within the control of the PARTY affected and which by the exercise ofreasonable diligence the said PARTY is unable to prevent or provide against.

22.3 If either PARTY is unable to perform its duties under this AGREEMENT by reason offorce majeure, that PARTY shall give written notice to the other of the inabilitystating the reason in question. The operation of this AGREEMENT shall be suspendedduring the period (and only during the period) in which the reason continues.Forthwith upon the reason ceasing to exist, the PARTY relying upon it shall givewritten advice to the other PARTY of this fact.


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22.4 If the force majeure occurrence continues for a period of more than thirty (30) days,the PARTY not claiming relief under this Article shall have the right to terminate thisAGREEMENT upon giving thirty (30) days written notice of such termination to the

other PARTY.

23. ASSIGNMENT AND SUBCONTRACTING

23.1 The BIDDER shall not subcontract any part of the SCOPE OF WORK without the priorwritten consent from MISC which consent shall not be unreasonably withheld. In anyevent, approval of such subcontractor by MISC and utilization of such subcontractorby the BIDDER shall not in any way release the responsibility of the BIDDER for theperformance of the SCOPE OF WORK and the BIDDER shall remain solely liable toMISC under this AGREEMENT. The BIDDER shall further be liable for and shall

indemnify and hold harmless MISC for any claim arising from any act, omission ornegligence on the part of any such subcontractor(s).

23.2 Neither PARTY shall assign this AGREEMENT or any of its rights hereunder withoutthe prior written consent of the other PARTY, which consent shall not beunreasonably withheld.

24. ENTIRE AGREEMENT

24.1 This AGREEMENT embodies and sets forth the entire agreement and understandingof the PARTIES and supersedes all prior or contemporaneous communications,representations and agreements, whether oral or written, relating to the subjectmatter of this AGREEMENT. Neither PARTY shall be entitled to rely on anyagreement; understanding or arrangement which is not expressly set forth in thisAGREEMENT other than written agreements entered into after the date hereof.

24.2 This AGREEMENT shall not be amended, modified, varied or supplemented except inwriting signed by the duly authorised representatives of the PARTIES.

25. CHANGE CONTROL PROCESS

25.1 The PARTIES agree to comply with the following CHANGE CONTROL PROCESSwhere any changes are required. The PARTIES may revise, amend, alter orotherwise change the nature and SCOPE OF WORK being provided from time to timeby mutual written agreement and otherwise in accordance with this Article 25. ThePARTIES agree to consider any proposed changes in good faith and to make a goodfaith effort to accept equitable adjustments to this AGREEMENT where appropriateto accomplish the mutual objectives of the PARTIES.

25.2 MISC may request changes to the SCOPE OF WORK (hereinafter referred to asCHANGE REQUEST) in accordance with the following procedures:


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25.2.1 Preliminary Estimate

Within (five) 5 days following the date of receipt of the CHANGE REQUEST,

BIDDER will provide MISC with an estimate (hereinafter referred to as thePRELIMINARY ESTIMATE) of the time and cost to make the requestedchange. If BIDDER determines that it cannot prepare the PRELIMINARYESTIMATE within such time frame, BIDDER will notify MISC in writing of thedate by which the PRELIMINARY ESTIMATE will be available, and BIDDERwill deliver the PRELIMINARY ESTIMATE by such date.

25.2.2 Response Period

Within the time frame specified in the PRELIMINARY ESTIMATE (hereinafterreferred to as the RESPONSE PERIOD), MISC will notify BIDDER in

writing whether or not to proceed with the assessment of the CHANGEREQUEST. If, within the RESPONSE PERIOD, MISC notifies BIDDER inwriting not to proceed, the CHANGE REQUEST will be deemed withdrawn,and BIDDER will take no further action on it. If BIDDER does not receive anynotice from MISC within the RESPONSE PERIOD, MISC will be deemed tohave advised BIDDER not to proceed.

25.2.3 Change Control Document

If, within the RESPONSE PERIOD, MISC notifies BIDDER in writing to proceedwith the assessment of the CHANGE REQUEST, BIDDER will prepare adocument (hereinafter referred to as the CHANGE CONTROLDOCUMENT) in accordance with the PRELIMINARY ESTIMATE whichincludes:

(i) a description of the change;(ii) the benefit of/reason for the change;(iii) the issues/concerns with the change;(iv) the priority of the change;(v) the modifications, additions and/or deletions that need to be made to

this AGREEMENT in order to implement the change, including theproposed increase/decrease in the charges to be paid by MISChereunder; and

(vi) the potential impact on the current nature and scope of the SCOPEOF WORK, including any impact on the PROJECT SCHEDULE.


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25.2.4 Acceptance by BIDDER

The BIDDER will provide MISC with the completed CHANGE CONTROL

DOCUMENT which will constitute an offer by BIDDER, signed by BIDDER, toimplement the CHANGE REQUEST with all associated changes to thisAGREEMENT specified in the CHANGE CONTROL DOCUMENT. Such offer willbe irrevocable for five (5) days following the date of receipt of the offer byMISC.

25.2.5 Acceptance by MISC

If MISC accepts the BIDDERs offer by acknowledging such acceptance inwriting on the CHANGE CONTROL DOCUMENT, the CHANGE CONTROLDOCUMENT will become an amendment to this AGREEMENT and will be

binding on both PARTIES. Each CHANGE CONTROL DOCUMENT will benumbered sequentially and will be logged and tracked by the BIDDER as partof the SCOPE OF WORK.

25.3 In the event that the BIDDER desires to make a CHANGE REQUEST, it will notifyMISC in writing of the requested change and will provide MISC with a PRELIMINARYESTIMATE and the provisions of Article 25.2 will apply.

25.4 In the event the CHANGE CONTROL PROCESS is affected pursuant to this Articleresulting in an extension of time in relation to the existing SCOPE OF WORK, thecorresponding increase in fees shall be subject to the Schedule of Rates as stipulatedin ATTACHMENT VII herein. If the change in SCOPE OF WORK is outside the existingSCOPE OF WORK, the BIDDER shall use the rates as stipulated in the Schedule ofRates in ATTACHMENT VIIas a basis for the charges in respect of the change in theSCOPE OF WORK.

26. PRESS RELEASE

The text of any press release or other communication to be published by or in themedia concerning the subject matter of this AGREEMENT shall require the priorwritten approval of MISC and MISC shall have the absolute discretion on thegranting such approval.

27. TITLE AND RISK

27.1 Title to the DELIVERABLES, BI PROGRAM and SOFTWARE shall pass to MISC uponthe issuance of the CERTIFICATE OF FINAL ACCEPTANCE for the BI PROGRAM andSOFTWARE.

27.2 During the period the USER REQUIREMENT STUDY, DELIVERABLES, BI PROGRAMand SOFTWARE are in transit or in the possession of the BIDDER, up to andincluding the date of issuance of the SIGN-OFF CERTIFICATE and the CERTIFICATE


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OF FINAL ACCEPTANCE, as the case may be, the BIDDER shall be responsible for allrisk of loss of or damage to the USER REQUIREMENT STUDY, DELIVERABLES, BIPROGRAM and SOFTWARE, respectively. After the issuance of the SIGN-OFF

CERTIFICATE and the CERTIFICATE OF FINAL ACCEPTANCE, as the case may besubject to Article 14 and after physical delivery of the USER REQURIEMENT STUDY,DELIVEREABLES, BI PROGRAM and SOFTWARE to MISC, all risks of loss of ordamage to the USER REQUIREMENT STUDY, DELIVERABLES, BI PROGRAM andSOFTWARE shall pass to MISC.

28. NOTICES

28.1 All notices, reports demands and other communication which are required or may begiven under this AGREEMENT shall be made in writing and shall be deemed to have

been received:

28.1.1 if delivered by hand at the time of delivery;

28.1.2 if delivered by courier 24 hours after the date of delivery with evidence ofdelivery note from the courier; and

28.1.3 if delivered by facsimile immediately upon transmission provided aconfirming copy is sent by first class pre-paid, by overnight courier or byhand by the end of the next business day.

28.2 All notices, reports demands and other communication to be forwarded under or inconnection with this AGREEMENT shall be forwarded to the PARTIES at theiraddresses as indicated below or at such other address as may from time to time bedesignated in writing to the other PARTY.

If to MISC:MISC BERHADLevel 22, Menara DayabumiJalan Sultan Hishamuddin50050 Kuala LumpurMalaysia

Facsimile : 603 2275 2032Attention To : EN HOOD B ABU BAKAR, General Manager ICT

If to BIDDER:

Telephone :Facsimile :Attention To :

28.3 Either PARTY hereto may at any time by giving at least seven (7) days prior writtennotice, change the address for communication set out above.


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29. WAIVER

Neither Partys failure to exercise any of its rights under this Agreement shall

constitute or be deemed to constitute a waiver or forfeiture of such rights. Waiver ofa breach of this Agreement will not be deemed a waiver of any future breach. Anywaiver must be in writing and signed by each Partys authorised representative.

30. COSTS AND EXPENSES

30.1 Each PARTY shall bear their respective costs and expenses in the preparation andfinalisation of this AGREEMENT.

30.2 The BIDDER shall stamp sufficient number of this AGREEMENT for all PARTIES and

shall bear the cost thereof.

31. BINDING EFFECT

All covenants, contract and conditions of this AGREEMENT shall be binding upon andensure to the benefit of the PARTIES hereto and their respective assigns and legalrepresentatives.

32. INDEPENDENT ENTITIES

32.1 The BIDDER and MISC are independent entities. Nothing contained in thisAGREEMENT shall be construed as creating a joint venture, partnership, oremployment relationship between the parties hereto, or will either PARTY have theright, power or authority to create any obligation or duty, express or implied, onbehalf of the other.

32.2 MISC shall not be responsible for the payment or deduction of any amountwhatsoever required by law to be made by an employer in relation to its employees.Neither the BIDDER nor its employees or servants or agents shall be covered by anyof MISCs employee benefit plans or insurance policies.

32.3 Without limiting or reducing the BIDDERs liability and responsibilities under theAGREEMENT, the BIDDER shall procure and maintain at its own cost and expensesall the necessary insurance including but not limited to the necessary insurance forits employees, agent or servant.

33. SEVERABILITY

If any term or provision of this AGREEMENT is held to be illegal or unenforceable,the validity or enforceability of the remainder of this AGREEMENT shall not beaffected.


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34. COMPLIANCE WITH LAWS

The BIDDER shall be deemed to be aware of and shall comply with all local and

foreign applicable laws, statutory rules and regulations in effect at the time thisAGREEMENT is executed and as may be amended from time to time, and herebyacknowledges that these laws, rules and regulations shall apply to the SCOPE OFWORK. BIDDER shall keep itself updated of any revision to such laws, rules andregulations and undertakes to continue to comply with the same.

35. HEALTH, SAFETY & ENVIRONMENT

35.1 The BIDDER shall ensure that its personnel, its agents or subcontractors, whenpresent at the SITES in order to deliver the said Product, shall comply with all rules,

regulations, standard requirements and other policies (including those related tosecurity, administrative and safety arrangements) in force for the conduct ofpersonnel on those SITES.

35.2 The BIDDER shall also comply with all the relevant and applicable laws, regulationsand requirements pertaining to safety, health and environmental protection.

35.3 Safety

35.3.1 The BIDDER shall comply with all statutory and other requirements relating tosafe working practices as apply to the place of work.

35.3.2 When on MISCs premises which includes all ships owned, managed, oroperated by the MISC, the BIDDER shall comply with MISCs health, safetyand other regulations including but not limited to MISCs Drug and Alcoholpolicy and personal protective equipment regulations.

35.3.3 The Purchaser is entitled to request sight of a method of work statement andif MISC so requests, no work may be commenced without the BIDDER firstobtaining MISCs authorisation.

35.3.4 Hazardous materials, of whatever nature, shall be accompanied byappropriate Material Safety Data Sheets, advice on handling and storage and

warning signs, all of which are to be in English.

35.4 Health and Safety at Work

The BIDDER shall provide MISC in writing with such information as is necessaryrelating to the use of any materials and/or equipment supplied and/or used and itsdesign, testing, use, setting, cleaning, maintenance, handling, processing, storage,transport, dismantling or disposal, and to any risk of health or safety to which theinherent properties thereof may give rise to any conditions necessary to ensure it willbe safe and without risk to health when it is being used, set, cleaned, maintained,handled, processed, stored, transported, dismantled or disposed of. The BIDDER


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shall provide MISC in writing with such further information or revisions ofinformation, as may be necessary relating to any of the said matters by reason of itsbecoming known that any such material an/or equipment or anything in any way

relating to them gives rise to a serious risk to health and safety.

[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]


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IN WITNESS WHEREOF the PARTIES hereto have hereunto set their hands the day andyear first above written.

For and on behalf ofMISC BERHAD (Company No. 8178-H)

For and on behalf of(Company Name and Number ofBIDDER)

Name : Name :Designation : Designation :

In the presence of: In the presence of:

Name : Name :

Designation : Designation :


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ATTACHMENT I SCOPE OF WORK

Below is the expected scope of work but not limit to the following tasks:

No Task

1 Requirement Confirmation

The vendor must review the requirement gathered during project phase I.

2 Physical Environment Setup

The vendor to setup/configure dev, testing and production environments.

3 Data Modeling

A sample meta data that represents Transport industrys common KPIsmust be provided. The vendor must also allocate a Subject Matter Expert(SME) on Transport industry.

4 ETL

The vendor must include Data Cleansing and Data Quality elements in theETL design.

Assist and advice methods in data cleansing.

5 Universe/OLAP Cube Design

6 Front-End Development

It must include but not limited to the following web-enabled features in thepresentation layer in relation to the business requirement (APPENDIX) andwhich must be user friendly and giving independence for users to modifyreport themselves (where necessary):

Business performance and strategic reporting ;Status tracking i.e. for cargo, container, vessel, cost, etc at any point ofthe shipment;Forecasting;KPI Dashboard for top management;Multidimensional Analysis i.e. slicing/dicing;Scenario / What-If Analysis; andCorrelations among different variables.

7 Performance Tuning
http://www.1keydata.com/datawarehousing/requirement.htmlhttp://www.1keydata.com/datawarehousing/requirement.htmlhttp://www.1keydata.com/datawarehousing/requirement.htmlhttp://www.1keydata.com/datawarehousing/requirement.htmlhttp://www.1keydata.com/datawarehousing/requirement.htmlhttp://www.1keydata.com/datawarehousing/requirement.html


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No Task

8 Quality Assurance

Perform quality check for each deliverable to MISC and Co-operate withProduct Principal to reach product optimization and compliance.

9 Production Rollout

10 Handover / Knowledge Transfer


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SECTIONIII Form of Agreement FINAL P

03 - Section III - Form of Agreement

Documents

Transcript of 03 - Section III - Form of Agreement