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CONDITIONS OF CONTRACT

CONTRACT FOR DESIGN, SUPPLY, DELIVERY, INSTALLATION, TESTING AND COMMISSIONING OF UPGRADING THE UNIVERSITI UTARA MALAYSIA INTERNET SERVICES

CONTRACT NO: UUM/BEN/T311/ 2014

A CONTRACT made the _____ day of _______ between _________________________ of whose Registered Office is situated at _________________________________ hereinafter called the "Contractor” of the one part and UNIVERSITI UTARA MALAYSIA hereinafter called the "University" of the other part.

WHEREAS the University is desirous of awarding the contract to the Contractor and the Contractor agrees to DESIGN, SUPPLY, DELIVERY, INSTALLATION, TESTING AND COMMISSIONING OF UPGRADING THE UNIVERSITI UTARA MALAYSIA INTERNET SERVICES (Hereinafter called the "Project" and has caused Specifications describing the Project to be supplied).

WHEREAS the said Project and the Specification, Schedules, Form of Tender and Letter of Acceptance of Tender have been signed by or on behalf of the parties hereto:

NOW IT IS HEREBY AGREED AS FOLLOWS:

1. For the consideration here in after mentioned the Contractor will upon and subject to the Conditions annexed hereto complete the supply of the said Project and deliver the same to the Office of the Vice Chancellor, Universiti Utara Malaysia, Sintok, Kedah, Malaysia, at his own cost except as hereinafter mentioned.

2. The University will pay the Contractor for the Project supplied the sum of Malaysian Ringgit : _________________________________________________ being the Contract Price of the said Project at the office of the Vice Chancellor, Universiti Utara Malaysia, Sintok, Kedah, Malaysia, which includes assembly, port handling, loading and unloading at the port of discharge and the office of the Vice Chancellor, Universiti Utara Malaysia, Sintok, Kedah, Malaysia, or such other sum as shall become payable hereinafter referred to as the Contract Price.

3. The term "Contract" wherever used and in all contract documents shall mean the documents forming the Tender and acceptance thereof together with the documents referred to there in including the Conditions annexed here to, the Specification and/or Drawing and all these Documents taken together shall be deemed to form one contract and shall be complementary to one another. The conditions annexed here to shall form the basis of conditions governing this Contract.

4. The term "Vice Chancellor" wherever used here in after and in all contract documents shall mean the Vice Chancellor, Universiti Utara Malaysia and his successors in office and also such person or persons as may be authorised by him

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in writing to act on his behalf for the purpose of this Contract on behalf of the University.

5. The term "Approved" and "Directed" wherever used hereinafter and in all contract documents shall mean the approval and direction made in writing by the Vice Chancellor.

6. The term "Contractor” wherever used here in and in all contract documents shall mean the person or persons, partnership, firm or company whose tender has been accepted and who has or have signed this Contract and shall include his or their heirs, executors, administrators, assignees, successors and duly appointed representatives.

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IN WITNESS WHEREOF the Parties have caused this Contract to be executed in their respective name by their duly authorised representatives the day and year first above written.

Signed for and on behalf of )the UNIVERSITI UTARA MALAYSIA ) Name : ) ______________

) (Signature)IC : )

)Designation: )

In the presence of ))

Name : ) ________________) (Witness's Signature)

IC : ))

Designation: )

Signed for and on behalf of )the ) Name : ) ______________

) (Signature)IC : )

)Designation: )

In the presence of ))

Name : ) ________________) (Witness's Signature)

IC : ))

Designation: )

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THE CONDITIONS HEREINAFTER REFERRED TO AS THE CONDITIONS OF CONTRACT

CLAUSE 1- DEFINITION OF TERMS

a) ContractThe term "Contract" wherever used and in all contract documents shall mean the documents forming the tender and acceptance thereof together with the documents referred to therein including the Conditions annexed hereto, the Specification and/or Drawing and all these Documents taken together shall be deemed to form one contract and shall be complementary to one another.

b) Contract PriceThe term "Contract Price" wherever used hereinafter and in all contract documents shall mean the price that the University agrees to purchase the Project.

c) UniversityThe term "University" wherever used hereinafter and in all contract documents shall mean the Universiti Utara Malaysia.

d) Vice ChancellorThe term "Vice Chancellor" wherever used hereinafter and in all contract documents shall mean the Vice Chancellor, Universiti Utara Malaysia and his successors in office and also such person or persons as may be authorised by him in writing to act on his behalf for the purpose of this Contract on behalf of the University.

e) Approved/DirectedThe term "Approved" and "Directed" wherever used hereinafter and in all contract documents shall mean the approval and direction made in writing by the Vice Chancellor.

f) ContractorThe term "Contractor" wherever used herein and in all contract documents shall mean the person or persons, partnership, firm or company whose tender has been accepted and who has or have signed this Contract and shall include his or their heirs, executors, administrators, assignees, successors and duly appointed representatives.

g) ProjectThe term "Project” wherever used herein and in all contract documents shall mean the Design, Supply, Delivery, Installation, Testing And Commissioning of Upgrading the Universiti Utara Malaysia Internet Services.

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h) Comprehensive WarrantyThe term "Comprehensive Warranty" wherever used herein and in all contract documents shall mean complete and Comprehensive Warranty of all the system supplied by the Contractor under this contract.

i) HardwareThe term “hardware” whenever used herein and in all contract documents shall mean any operating equipment that the University agrees to be installed or agrees to purchase for the Project under this Contract.

j) SoftwareThe term “software” whenever used herein and in all contract documents shall mean the any software that the University agrees to be installed in any equipment for the Project under this Contract.

k) EquipmentThe term “Equipment” whenever used herein and in all contract documents shall mean all the hardware and software that the University agrees to be installed for the Project under this contract.

CLAUSE 2 - SCOPE OF CONTRACTThe Contract comprises the supply, testing, transport and delivery to site, installation, testing, commissioning, maintaining and training of all the Project fully comprehensive and, except in so far as the Contract otherwise provides, the provision of all labour, materials, Contractor's equipment and everything, whether of a temporary or permanent nature, required in and for such supply, testing, transport and delivery to site, installation, testing, commissioning and maintaining so far as the necessity for providing the same is specified in or reasonably to be inferred from the Contract.

CLAUSE 3 – CONTRACT AGREEMENT The Contract, the Contract Drawings and Specifications/Schedules, aforesaid shall remain in the custody of the University and shall be produced as and when required by the Contractor. The Vice Chancellor shall furnish to the Contractor one copy of the signed Contract, Drawings and Specifications/Schedules free of cost.

CLAUSE 4 – WARRANTY 4.1All equipment to be supplied by the Contractor under this Contract shall be as

follows:

4.1.1 The Hardware and Software warranty shall be a period of thirty six (36) months from the issuance of the Final Acceptance Certificate against manufacture’s defects on materials and workmanship as well

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as performance of the System to conform to Specification of the Contract.

4.2Any components of the Hardware and/or the Software found defective within the respective Warranty Periods shall, under the written instructions of the Vice Chancellor, be replaced or repaired by the Contractor under its own expense and subject to the same terms and conditions imposed on the original Contract.

4.3Any replacement by the Contractor under Clause 4.2 shall be effected at the earliest date upon the receipt of the written instructions from the Vice Chancellor.

4.4Any failure on the part of the Contractor to comply with Clause 4.2 and/or Clause 4.3 will entitle the Vice Chancellor to:

i) Purchase replacement components from any third party; and

ii) All incidental cost incurred in the purchase shall be at the expense of the Contractor and:

a) Shall be deducted from any moneys due or becoming due to the Contractor under this Contract; or

b) The University may claim from the Contractor as liquidated damages.

CLAUSE 5-DAMAGE The Contractor shall be solely responsible for the packing and handling of the equipment. Any damage to the equipment caused by the Contractor or his agent shall be made good by the Contractor.

CLAUSE 6-DUTIES, TARIFFS, ETC. (a) If at any time after the date of acceptance of the Tender for this Contract

there is any increase or decrease in any existing tax, duty, tariff or if there is any additional tax or the like imposed under statutory obligations, then any variations thereby caused to the prices of the equipment to be supplied under this Contract shall be adjusted by way of increase or decrease as the case may be and the Contract Price shall be adjusted accordingly.

(b) The Contractor shall, when required by the Vice Chancellor produce documentary evidence in support of any claims, which may be made in respect of any circumstances referred to in sub-clause (a) above.

CLAUSE 7-DATE OF COMPLETION(a) The supply of all Projects, installation, testing, commissioning and of all other

items in the Contract shall be completed on or before the 16th week after the

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"date of signing the Contract" subject to the provisions for extension of time hereinafter mentioned.

(b) In the event of the Contractor failing to complete the supply of any equipment and works under this Contract on or before the Date of Completion, or on or before any extended time as hereinafter provided, except in such circumstances provided for in Clause 8 hereof, the Vice Chancellor shall have the right to cancel all or any such equipment and works not delivered or completed under this Contract without any compensation and obtain such equipment and works from other sources. Should the cost of any such equipment and works obtained from other sources be greater, then the difference in cost shall be deducted from any money due or to become due to the Contractor or shall be recoverable by the University as a liquidated demand in money.

CLAUSE 8-DELAY AND EXTENSION OF TIME(a) Should the completion of the supply of all or any Project and works, or the

fulfilment of any other obligations under the terms of this Contract, be delayed by reason of acts of God, outbreak of war, acts of foreign aggression, civil war, hostilities, martial laws, civil commotions, or industrial disputes or causes beyond the reasonable control of either party then a fair and reasonable extension of time shall be granted by the Vice Chancellor. Upon the happening of any of the aforementioned causes the party affected shall immediately give notice thereof in writing to the other party but shall nevertheless do all that may be reasonably expected to minimise the delay.

(b) If any of the causes specified in paragraph (a) of this Clause should materially affect the fulfilment of this Contract, any question concerning the continuous, suspension or termination of this Contract shall be settled by mutual agreement as such between the parties or, failing such agreement, it shall be settled by Arbitration in accordance with Clause 29 of this Contract.

CLAUSE 9-DELIVERY AND PAYMENT a) The Contractor shall be responsible for the delivery of the equipment to be

supplied under this Contract to the point of delivery elsewhere stated herein. He shall notify the Vice Chancellor in writing of such delivery and shall hand over the equipment and obtain a receipt therefore from the Vice Chancellor. The issue of such receipt shall in no way relieve the Contractor from his responsibilities for replacing defective or damaged equipment under Clauses 4 and 5 hereof

b) Payment shall be made quarterly; in advance.

c) The first payment will be made upon complete of workable installation. The Contractor in writing will acknowledge the date of workable installation.

d) The University shall be entitled to deduct from any such payments any money, which is certified by the Vice Chancellor to be due to the University, by the

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Contractor by reason of any default or breach of this Contract by the Contractor.

CLAUSE 10-VARIATION AND EXTRAThe Vice Chancellor shall have the right during the execution of the Contract, to make or cause to be made, any variations from the original drawings and specifications and to increase the quantities of any item(s) or to omit any item(s), or to insert any additional item(s) without the consent of the Contractor, in accordance with the Schedules of Rates to be agreed upon by both parties.

If any item, other than those given in the Schedule of Rates is required to be supplied and installed or to be deleted from the main contract, then the Vice Chancellor shall require the Contractor to quote with detailed breakdown costs for his consideration. Upon agreement with the costs in writing, only shall the additional item(s) be supplied and installed or to be deleted, as required. Any such additions or deletions shall be subjected to the overall conditions and Specification of the Contract.

All variations shall only be executed on written instructions from the Vice Chancellor.

CLAUSE 11-TRAINING(a) The Contractor undertakes to train suitable personnel nominated by the Vice

Chancellor in accordance with an agreed schedule. The training shall be such that the trainees may get an adequate knowledge in Internet Services. The schedule referred to the above shall be mutually agreed upon between the University and the Contractor.

(b) Further training if requested by the University shall be provided at a reasonable charge.

(c) The Contractor shall provide all the necessary reference manuals and documents for the University to operate the said Project smoothly.

CLAUSE 12-PATENT RIGHTThe Contractor shall fully indemnify the University against any claim of infringement of Letters of Patent or Registered Design for the use or sale of any equipment or material supplied by the Contractor under this Contract and against all costs and damages which the University may incur in any action for such infringement or for which the University may become liable in any such action. Provided always that such indemnity shall not apply to any infringement, which is due to the Contractor having followed a design or instruction furnished or given by the Vice Chancellor.

CLAUSE 13-QUALITY AND PERFORMANCE

Wherever in any Specification forming part of this Contract any equipment is stipulated to conform to a designated Standard Specification or to give certain performance figures in operation, the Contractor shall furnish, at the time of

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supplying such equipment, certificates showing that the necessary tests have been carried out and that the specified figures, subject only to the recognized tolerances and rejection limits applicable to such figures, have been obtained.

CLAUSE 14-SUB - CONTRACTING The Contractor shall not, without the written consent of the Vice Chancellor first obtained, assign this Contract or sub-contract all or any portion of the works, provided that, such consent shall not be unreasonably withheld to the prejudice of the Contractor. In the event of any portion of the Contract being sub-contracted with the written consent of the Vice Chancellor, the Contractor shall be jointly and severally responsible with the sub-contractor for the due observance by such authorised sub-contractors of all the terms, stipulations and conditions herein expressed.

CLAUSE 15-TECHNICAL ADVICEThe Contractor shall agree to give normal technical advice with regard to the installation, operation and maintenance of the Project under this Contract and all such advice shall be given at no charge.

CLAUSE 16-PROJECT COMPLETIONThe Project shall be fully installed and operational on the Date of Completion as provided in Clause 7 (a) subject to extension of time provided under Clause 7 (b). Failure by the Contractor to comply with this Clause will entitle the Vice Chancellor to involve Clause 17 stated herein.

CLAUSE 17-LIQUIDATED DAMAGESThe Contractor shall comply with Clause 16 and testing and commissioning of the Project together with the training of the University staff on the use of the Project by the Date of Completion as provided in Clause 7 (a) subject to extension of time provided in Clause 7 (b). Provided delay is not caused by the University, failure on the part of the Contractor shall entitle the Vice Chancellor to impose a liquidated damage of 0.05 percent of the Total Contract Price per day for the number of days delay as liquidated damages until the Date of Completion of the Project.

CLAUSE 18-INJURY TO PERSONS, DAMAGE TO PROPERTY AND INSURANCES(a) Injury to persons - The contractor shall indemnify the University in respect of

any liability, loss, claim or proceedings whatsoever, whether arising at common law or by statute in respect of personal injuries to or death of any person whomsoever arising out of or in the course of or caused by the execution of the works under this Contract unless wholly due to any act or neglect of the University or his servants.

(b) Damage to property - The Contractor shall be liable for and shall indemnify the University in respect of any liability, loss, claim, or proceedings and for any injury or damage whatsoever arising out of or in the course of or by reason of the execution of the works under this contract to any property, real or personal due to any negligence, omission or default of himself, his agents

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or his servants or of any authorised sub-contractor or to any circumstances within his control.

(c) Insurances - for the above coverage the Contractor is required to take out the following insurance policies: - i) Contractor's All Risks Policy.ii) Workmen's Compensation Policy.

The contractor is required to submit a certified copy of the insurance policy for the university safekeeping.

CLAUSE 19-PERFORMANCE BOND(a) The Contractor, for the due and faithful performance of this Contract shall

deposit with the University the cash amount or an approved Banker's Warranty / Insurance Warranty equal to two and half percent of the Contract Price as the Performance Bond if the Contract Price is less than RM500,000/- and five percent of the Contract Price as the Performance Bond if the Contract Price is RM500,000/- or larger. It is agreed that the University may utilise and make payments out of, or deductions from the said Performance Bond in accordance with the terms of this Contract.

(b) The Performance Bond (or any balance thereof remaining for the credit of the Contractor) shall be released on the expiry of the Warranty Period referred to in Clause 4 of the Conditions of Contract or thirty six (36) months after the Date of Completion as provided in Clause 7 whichever is later.

CLAUSE 20-BRIBERY AND CORRUPTIONIf at any time after the acceptance of the Contractor's tender for this Contract, the Contractor shall be found guilty of an offence under the Prevention of Corruption Act, 1961 (as amended), or an offence of a similar nature under any law for the time being in force, the Vice Chancellor may, without compensation by giving four week's written notice to the Contractor, terminate this Contract, provided that the Contractor shall not be relieved of his obligation to supply and deliver any Project for which orders had been received by him before the date of termination, i.e. the last date of the four (4) weeks written notice.

CLAUSE 21-STAMP DUTYThe Contractor undertakes to pay stamp duty on this Contract or to arrange for waiver of the same and to remit all registration fees.

CLAUSE 22-CERTIFICATEThe Contractor shall furnish with every consignment of Project delivered, a certificate to the effect that the quality of the Project so delivered is not inferior to the sample for which the contract was awarded or to the quality laid down in the tender specification whichever is applicable.

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CLAUSE 23-FREIGHT INSURANCE OF PROJECTThe Contractor shall in the joint name of the University and the Contractor purchase freight Insurance for each Project, which cover the route from port of landing to the final site of installation. He shall allow for the cost of this in his contract.

CLAUSE 24-CONTRACTOR'S DEFAULT AND TERMINATION OF CONTRACT BY THE VICE CHANCELLOR

If the Contractor neglect to execute the Contract with due diligence and expedition, or refuse or neglect to comply with any reasonable orders given him in writing by the Vice Chancellor in connection with the Contract or contravene the provision of the Contract, the University may (without prejudice to any other rights herein contained) by notice sent by registered post, terminate this Contract; provided that notice hereunder shall not be given unreasonably or vexatiously. In such case, the University shall be at liberty to take the Contract wholly out of the Contractor's hands and re-contract with another person or persons to complete the Contract and in that event the University shall have the free use of all the Contractor’s Project in connection with this Contract. The University shall also be entitled to retain and apply any money due or to become due to the Contractor under this contract. Should the cost of completing the contract thus be greater, the difference in cost shall be recovered by the University as a liquidated demand in money.

CLAUSE 25-CONTRACTOR TO INFORM HIMSELF FULLY The Contractor by tendering shall be deemed to have satisfied himself as to all the conditions and circumstances affecting the Contract Price, as to the possibility of executing the Project as shown and described in the Contract, as to the general circumstances at the site of the works and as to the general labour position at the site, and to have fixed his prices according to his own view for these as no additional allowance, except as otherwise expressly provided, will afterwards be made beyond the Contract Price. The Contractor shall be responsible for any misunderstanding or incorrect information however obtained except information given in writing by the Vice Chancellor.

CLAUSE 26-PROVISIONAL ACCEPTANCE (a) The Contractor shall allow the University to test the Project for a period of seven

(7) working days from the date of complete delivery and installation of the Project, or 95 hours whichever is later. Upon the Project performing in accordance to the specification stipulated in the contract, and with downtime of not greater than five (5) percent of the total period of testing, the Project shall be given Provisional Acceptance by the Vice Chancellor.

(b) System Down Time (SDT) is defined as follow:

Total Non-operational HourSDT= ------------------------------------------------x 100%

Total Required Operational Hours

Where:

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(i) Non-operational Hours means the elapsed time commencing from the point the University Informs the Contractor that the project cannot be used to the time the Contractor has fully repaired the Project and the Project is usable.

(ii) Total Non-operational Hours therefore is the total sum of Non-operational Hours during the Provisional Acceptance Test Period.

(iii) Non-operational Hours means the elapsed time between the hours of 8.00 am to 10.00 pm Saturday to Thursday, where the University intends to operate the Project.

(iv) Total Operational Hours there is the number of hours whereby the University intends to operate the Project over the Provisional Acceptance Test Period.

(c) The University shall be entitled to extend the period of testing upon detecting of any fault the Project due to any defective of workmanship, materials or system design or any interest or any inherent weaknesses.

(d) The date of Provisional Acceptance will be acknowledged by the University in writing.

CLAUSE 27-FINAL ACCEPTANCE(a) The University shall operate the Project for a period of one (1) month from the

date of Provisional Acceptance or 500 hours whichever is later to determine the Final Acceptance of the Project. Upon the Project performing in accordance to the specifications stipulated in the Contract, and with a downtime of not greater than five (5) percent of the total period of operation, the Project will be given Final Acceptance by the Vice Chancellor.

(b) System Down Time (SDT) is defined as follows:

Total Non-operational HourSDT= ------------------------------------------------x 100%

Total Required Operational Hours

Where:

(v) Non-operational Hours means the elapsed time commencing from the point the University Informs the Contractor that the project cannot be used to the time the Contractor has fully repaired the Project and the Project is usable.

(vi) Total Non-operational Hours therefore is the total sum of Non-operational Hours during the Final Acceptance Test Period.

(vii) Non-operational Hours means the elapsed time between the hours of 8.00 am to 10.00 pm Saturday to Thursday, where the University intends to operate the Project.

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(viii) Total Operational Hours there is the number of hours whereby the University intends to operate the Project over the Final Acceptance Test Period.

(d) The University shall be entitled to extend the period of testing upon detecting of any fault the Project due to any defective of workmanship, materials or system design or any interest or any inherent weaknesses.

(d) The date of Final Acceptance will be acknowledged by the University in writing.

CLAUSE 28-MAINTENANCEThe Contractor shall provide Comprehensive Maintenance service free of charge twelve (12) months for all hardware software after the Date of Completion as provided in Clause 7.

CLAUSE 29-STANDARD AGREEMENT FOR MAINTENANCE The Contractor shall submit a copy of Standard Condition for provisions of fully Comprehensive Maintenance services as used by his/their company. The maintenance services will cover the Project, during defect liability period of thirty six (36) month after the Date of Completion as provided in Clause 7.

CLAUSE 30-LOCAL AND OTHER AUTHORITIES NOTICES AND FEES The Contractor shall comply with, and give notice required by any written law, regulations and by-laws of any Authority and/or any Public Services Company or Authority related to the supply and works or with whose system in the same area or will be connected and he shall pay and indemnify the authority against any fees or charges desirable by-law thereunder in respect of the supply and works.

CLAUSE 31-ARBITRATIONProvided always that in case any dispute or difference except a dispute or difference as to rates of wages or conditions of employment of workman employed by the Contractor in and for the performance of this Contract including workmen employed by nominated sub-contractor and by authorised sub-contractor engaged directly by the Contractor shall arise between the University or the Vice Chancellor on his behalf and the Contractor, either during the progress or after completion of the works or after the termination, abandonment, or breach of the Contract or as to any matter or things arising thereunder, or as to the withholding by the Vice Chancellor of any certificate to which the Contractor may claim to be entitled, then the Vice Chancellor shall determine such dispute or difference by a written decision given to the Contractor. The said decision shall be final and binding on the parties unless the Contractor within 14 days of the receipt thereof by written notice to the Vice Chancellor disputes the same, in which case or in case the Vice Chancellor for 14 days after a written request to him by the Contractor fails to give a decision aforesaid, such dispute or difference shall be referred to a single arbitrator in accordance with the provisions of the Arbitration Act 1952 and any statutory modifications or re-enactment thereof for the time being in force in Malaysia and his

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or her decision shall be binding in both parties. Such reference, except on the question of payments, shall not be commenced until after the completion of the works, unless with the written consent of the Vice Chancellor and the Contractor. The arbitrator shall have the power to review and revise any certificate, opinion, decision, requisition or notice and to determine all matters in dispute which shall be submitted to him and of which notice shall have been given as aforesaid in the same manner as if no such certificate, opinion, decision, requisition or notice had been given. Upon any such reference the cost of an incidental to the reference and award shall be in the discretion of the Arbitrator, who may determine the amount thereof, or direct the same to be taxed as between solicitor and the client or between party and party and shall direct by whom and to whom and in what manner the same shall be borne and paid. This submission shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act.

CLAUSE 32- APPLICATION OF LAWSThe Contract shall be governed and interpreted in accordance with the Law of Malaysia.

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