Exhibit 4.16
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
AND
ERICSSON CDMA CONSORTIUM
ERICSSON WIRELESS COMMUNICATION
PT ERICSSON INDONESIA
PT INFRACELL NUSATAMA
SERVICE LEVEL AGREEMENT
SERVICE LEVEL AGREEMENT
THIS SERVICE LEVEL AGREEMENT is made the 23rd day of December 2002.
BETWEEN:
(1) PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA, TBK., a
limited liability public state-owned company established under the laws
of the Republic of Indonesia, having its head office at JI. Japati No.
1, Bandung, in this legal action duly represented by Kristiono in his
capacity as President Director, hereinafter referred to as "TELKOM".
and
(2) ERICSSON CDMA CONSORTIUM, established based on Consortium Agreement
dated 23 December 2002, comprised of ERICSSON WIRELESS COMMUNICATION
INC., as leader of the Consortium having its head office at 6455 Lusk
Blvd, San Diego, California 92121-2779, USA, for the purpose of signing
of this Agreement being duly represented by Mark Cratsenburg, in his
capacity as Attorney-in-Fact of Ericsson Wireless Communications Inc.,
PT ERICSSON INDONESIA as a member of the Consortium, having its legal
domicile at Wisma Pondok Indah, 10th Floor Jalan Sultan Iskandar Muda V
TA, Jakarta 12310-Indonesia, for the purpose of signing of this
Agreement being duly represented by UIF Mansson, in his capacity as
President Director and PT INFRACELL NUSATAMA, as a member of the
Consortium, having its legal domicile at World Trade Centre, 12th Floor
Jalan Jenderal Sudirman Kav 29-31, Jakarta 12920-Indonesia, for the
purpose of signing of this Agreement being duly represented by Djoko N.
Labbaika, in his capacity as President Director, hereinafter jointly
referred to as "PARTNER"
(TELKOM and PARTNER are individually hereinafter referred to as a
"Party" and collectively as the "Parties").
WHEREAS
A. TELKOM and PARTNER have entered into a Master Partnership Procurement
Agreement dated [date] for the procurement of core network assets
contemplated in the T-21 Program and for implementing the T-21 Program
(the "Master Partnership Procurement Agreement").
B. TELKOM has requested PARTNER to render operating and maintenance
support services, and PARTNER has agreed to provide these services in
accordance with this Service Level Agreement.
C. Accordingly, pursuant to the Master Partnership Procurement Agreement,
the Parties agreed to enter into this Service Level Agreement to
support the maintenance of the Network for at least three (3) years
from the Commencement Date.
CHAPTER 1 - GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1 All terms and definitions used in the Master Partnership Procurement
Agreement (including the technical terms defined in Appendix 23 -
(Technical Terms) of the Master Partnership
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Procurement Agreement) shall have the same meaning in this Service
Level Agreement unless otherwise stated.
1.2 In addition, where the context permits, the following expressions shall
have the following meanings:
(a) "CALL BACK TIME" means the time taken by TSC2
personnel to call back TELKOM after
the trouble ticket has "been
created.
(b) "COMMENCEMENT DATE" [check] means the first day after
the Commissioning of the
Deliverables in the second Purchase
Order which will be issued under
the Master Partnership Procurement
Agreement, or earlier as requested
by TELKOM.
(c) "FAULT MANAGEMENT" means all TELKOM service requests
or Customer Service Requests (CSR).
(d) "HELP DESK" means the help-desk support service
to be provided by PARTNER as set
out in Article 10.1.
(e) "KPI" means the terms and conditions as
well as service levels to be met
in providing the Services as set
out in Articles 9 to 13 as well as
the Appendices referred to in these
Articles.
(f) "PERMANENT FIX" means a complete solution restoring
entire functionality as provided in
Appendix B.
(g) "SUB-SYSTEM" means a BSC, BTS, transmission
equipment, BSS's NEM (these
mentioned equipment are grouped as
BSS), PDSN, AAA, HA, DNS, Firewall,
WAP Gateway, WAP Server, PDN's NEM
(these mentioned equipment are
grouped as PDN) and other similar
or related equipment, including all
associated software and components
that acquired from PARTNER.
(h) "SYSTEM" means two or more Sub-system
forming a network that is ready for
commercial service.
(o) "SERVICES" means the services for the Network
to be provided by PARTNER to TELKOM
as set out in Articles 9 to 14
starting from the Commencement
Date.
(j) "TEMPORARY FIX" means a temporary work around
solution as provided in Appendix B.
(k) "TROUBLE TICKET" means the ticket issued by
PARTNER'S support desk identifying
the problem alerted.
(l) "TSC1" means TELKOM's support personnel
dealing with operation and
maintenance activities located at
each Location.
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(m) "TSC2" means PARTNER'S support desk
located in Jakarta and/or PARTNER's
specialized technical support staff
and designers who have the
capability of evaluating complex
network problems.
(n) QUARTER" means a calendar three month
period, ending on March 31, June
30, September 30, and December 31
of each calendar year.
1.3 Writings. References in this Service Level Agreement to writing shall
include typewriting, printing, lithography, photography, telefax,
facsimile, e-mail and telex messages and any mode of reproducing words
in a legible and non-transitory form.
1.4 Plural; Gender, Persons. Words importing the singular include the
plural and vice versa; words importing a gender include every gender,
and references to persons include bodies corporate or unincorporated.
1.5 Agreement. Any document expressed to be "in the agreed form" or
"agreed" means a document approved by TELKOM and PARTNER and (for the
purpose of identification) initialed on behalf of each Party.
1.6 Headings. Headings in this Service Level Agreement are used for
convenience only and shall not affect the construction of this Service
Level Agreement.
1.7 Days. In this Service Level Agreement, unless the context otherwise
requires, references to a "day" shall mean a period of twenty-four (24)
hours ending at 12 midnight. Whenever in this Service Level Agreement a
period of time is referred to, the day upon which that period commences
shall be the day after the day from which the period is expressed to
run, or the day after the day upon which the event occurs which causes
the period to start running.
1.8 References. References to Articles and Appendices are references to the
Articles of, and the Appendices to this Service Level Agreement.
References to any laws or regulations shall be construed as references
to those laws or regulations as from time to time amended or reenacted.
1.9 Priority of Documents. In the event of any inconsistency between this
Service Level Agreement and the Appendices of this Service Level
Agreement, the terms and conditions in this Service Level Agreement
shall prevail.
1.10 General and Specific Provisions. In the event of ambiguity over the
application of any provision of the Service Level Agreement, this
Service Level Agreement shall be interpreted to favor the specific
meaning and/or application over the general meaning and/or application.
2. FORCE MAJEURE
2.1 Neither Party shall be liable for delays in delivery or performance, or
for failure to manufacturer, deliver or perform when caused by any of
the following which are beyond the reasonable control of the delayed
Party, including but not limited to as acts of God, acts of the public
enemies, acts of civil or military authority, acts of war, acts of
terrorism, riots, strikes, lockouts, other labor disturbances,
hurricanes, earthquakes, fires, floods or other natural disasters,
epidemics and embargoes or a change to any government of Indonesia law,
regulation, decree or government department policy having the force of
law which has a material adverse impact on the ability of a Party to
perform this Agreement.
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2.2 Any occurrence belonging to Force Majeure category shall be notified
immediately to the other party not later than fourteen (14) days after
such occurrence.
2.3 In the event that due to Force Majeure the implementation of this
Service Level Agreement or relevant agreement, acceptance test,
integration, other system tests or other matters provided herein are
suspended, the implementation period shall be extended by the numbers
of days equal to the duration of suspended implementation.
2.4 Neither party shall be liable for any losses suffered by the other
party arising as a result of Force Majeure.
3. ASSIGNMENT AND SUBCONTRACTING
3.1 PARTNER shall not, without the prior written consent of TELKOM (such
consent not to be unreasonably withheld or delayed), assign this
Service Level Agreement, or assign or encumber any of the moneys due or
becoming due under it.
3.2 TELKOM reserves the right to assign this Service Level Agreement, with
prior written consent of PARTNER, such approval not to be unreasonably
withheld or delayed, to any of TELKOM's subsidiaries or related
companies.
3.3 A schedule of each proposed sub-contractor and the part of the Services
proposed to be performed by such sub-contractor is attached in Appendix
1. In case of any plan to change and/or to add a sub-contractor,
PARTNER shall notify TELKOM in writing immediately before the proposed
sub-contractor is appointed TELKOM shall advise within ten (10)
Business Days if it has substantive objections to the appointment of
any of such proposed sub-contractors and/or the work they were intended
to do, and PARTNER shall take such objections into account so as to
meet with TELKOM's approval
3.4 The use of sub-contractors shall in no way relieve PARTNER from its
responsibility to deliver the Services to TELKOM (in particular to
ensure that any Services comply with all requirements of this Service
Level Agreement) or to perform necessary tasks such as project
management related to this responsibility in accordance with this
Service Level Agreement.
3.5 PARTNER shall ensure that the addition or removal of any
sub-contractors shall not impact the agreed Contract Price or
implementation plan and/or the service levels in this Service Level
Agreement.
4. GOVERNING LAW AND LANGUAGE
4.1 This Service Level Agreement shall be interpreted and governed in
accordance with the laws of the Republic of Indonesia.
4.2 All data, documents, descriptions, diagram, books, catalogues,
instructions, marking for easy identification of major items of the
material and correspondence shall be in the English language and in the
metric system of weights and measures.
4.3 PARTNER's personnel shall be proficient in English both written and
spoken, for the purpose of providing instruction, offering advisory
services, training and any other submission as required.
5. SETTLEMENT OF DISPUTES
5.1 If any disputes arising between TELKOM and PARTNER in connection with
or arising out of
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this Agreement or the breach, termination of validity thereof (a
"Dispute"), the Parties shall attempt for a period of thirty (30) days
after receipt by one Party of a notice from the other Party of the
existence of the dispute, to settle such Dispute in the first instance
by mutual discussions between senior executives of the Parties.
5.2 Any Dispute which cannot be resolved by amicable settlement between the
Parties arising out of or in connection with this Agreement, including
any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration in Singapore in
accordance with the Arbitration Rules of the Singapore International
Arbitration Centre ("SIAC") for the time being in force which rules are
deemed to be incorporated by reference to this clause.
5.3 The arbitration shall be conducted before an arbitral tribunal composed
of three (3) arbitrators. The language of the arbitration shall be
English.
5.4 The three (3) person arbitration panel shall be selected as follows:
(i) each arbitrator shall be fluent in English and shall be
experienced with legal matters concerning the
telecommunications industry.
(ii) each of (A) the Party initiating the arbitration and (B) the
respondent Party or Parties to the Dispute shall nominate one
(1) arbitrator within thirty (30) days of the written notice
of the Dispute described above. The relevant Parties shall
within (30) days of the appointment of the two (2) arbitrators
seek to appoint a third arbitrator. If any relevant Party does
not nominate an arbitrator or if the relevant Parties cannot
agree on the choice of the third arbitrator, in each case
within the relevant period, then each unappointed arbitrator
shall be selected by the Chairman of the SIAC (provided that
the requirements in Section 5.4(ii) are satisfied).
5.5 The award rendered shall be in writing and shall set out the facts of
the Dispute and the reasons for the arbitration panel's decision. The
award shall apportion the costs of the arbitration as the arbitration
panel deems fair.
5.6 The Parties agree that the arbitration award shall be final and binding
on the Parties. The Parties agree that no Party shall have any right to
commence or maintain any suit or legal proceedings until the Dispute
has been determined in accordance with the arbitration procedure
provided herein and then only for enforcement of the award rendered in
the arbitration. Judgment upon the arbitration award may be rendered in
any court of competent jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order of
enforcement, as the case may be.
5.7 Each of the Parties hereby expressly waives any Indonesian laws and
regulations, decrees or policies having the force of law that would
otherwise give a right to appeal against the decision of the
arbitration panel, and the Parties agree that no Party shall appeal to
any court against the award or decision contained therein. The Parties
agree that any dispute in connection with or arising out of this
Agreement or the breach, termination of validity thereof under is of a
commercial nature.
5.8 Each of the Parties waives the applicability of Article 48(1) of the
Indonesian Law on Arbitration and Alternative Dispute Resolution (the
"Arbitration Law") and agrees that no arbitration need be completed
within a specific time. For purposes of Article 5 paragraph 1 of the
Arbitration Law, the Parties agree that the relationship among the
Parties is commercial in nature and any Dispute related to this
Agreement shall be deemed commercial.
5.9 No Party or person involved in any way in the creation, coordination or
operation of the arbitration of any Dispute may disclose the existence,
content or results of fee Dispute or any arbitration conducted under
this Agreement in relation to that Dispute, in each case subject to
those disclosures permitted by Article 5.
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5.10 This Agreement and the rights and obligations of the Parties shall
remain in full force and effect pending the award in such arbitration
proceeding, which award, if appropriate shall determine whether and
when only termination shall become effective. The provisions contained
in this Article 5 shall survive the termination and/or expiration of
this Agreement.
6. NOTICES AND AUTHORIZED REPRESENTATIVES
6.1 All notifications required or permitted under this Service Level
Agreement shall be sufficiently given if made in writing and delivered
personally by hand or by courier or sent by prepaid registered post or
by facsimile to the addresses of the Parties set out below or as such
address as from tune to time notified in writing:
For TELKOM:
Perusahaan Peseroan (Persero) PT Telekomunikasi Indonesia Tbk.
JI. Japati No. l,Bandung 40133
Attention : President Director
Fax : (022)440-313
For PARTNER:
PT Ericsson Indonesia
Wisma Pondok Indah, 10th Floor
JI. Sultan Iskandar Muda V TA
Jakarta 12310, Indonesia
Attention : President Director
Fax : (021)750-1482
A Party may change its address by giving prior written notice to the
other Party. Notices and other communications may be in the Indonesian
or English language. All notices shall be effective (i) in the case of
delivery by personal delivery or courier, on the date of receipt as
evidenced by a delivery receipt from the recipient or confirmation of
delivery received by the sender from the courier, and (ii) in the case
of transmission by facsimile transmission or electronic mail or other
electronic transmission, on the date of such transmission as evidenced
by the convention applicable to such transmission.
6.2 PARTNER shall appoint a point of contact or designated representative
authorized to act on behalf of PARTNER, and whose instructions and
requests shall be binding for PARTNER as to all matters pertaining to
the Services brought to his attention by TELKOM. TELKOM shall appoint a
point of contact or designated representative authorized to act on
behalf of TELKOM as to all matters pertaining to the Services.
The initial point of contacts are listed below:
PARTNER's Point of Contact:
General Manager, Telkom Account
PT Ericsson Indonesia
Wisma Pondok Indah, 10th Floor
JI. Sultan Iskandar Muda V TA
Jakarta 12310, Indonesia
Tel : (021) 769-2222
Fax : (021) 750-1482
E-mail : bintang.juliarso@eid.ericsson.se
TELKOM Point of Contact:
Head of Fixed Wireless Division (as Project Manager)
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JI. Kebun Sirih, Kav. 12
Jakarta, Indonesia
Tel : (021) 385-7777
Fax : (021)
E-mail : alex_js@telkom.co.id
Mobile : (0811) 965-500
7. TERMINATION
7.1 This Service Level Agreement shall come into effect on the Commencement
Date and shall continue to in force for an initial period of three
years, subject to the right reserved by TELKOM to review and seek to
amend the period of this Service Level Agreement on an annual basis.
Pursuant to this right, TELKOM shall convey its proposed amendments to
PARTNER at least three months prior to the expiration of next
anniversary of the Commencement Date (but no more than six months
before the next anniversary). PARTNER shall consider the proposed
revisions or amendments and decide whether it will accept them. If
PARTNER cannot agree to the proposed revisions or amendments after
negotiation in good faith to reach agreement at the latest one month
before the next anniversary of the Commencement Date, this Service
Level Agreement may be terminated at the anniversary of the
Commencement Date.
7.2 TELKOM shall be entitled to terminate all or part of this Service Level
Agreement upon any of the following events:
(a) termination of the MPPA for whatever reason;
(b) PARTNER declares or clearly states that the Services, or any
substantial part thereof, will not or cannot be completed;
(c) PARTNER takes or has taken or instituted against it any
action or proceeding, whether voluntary or compulsory, which
has as an object or may result in the winding up of PARTNER
(other than a voluntary winding up by members for the purpose
of reconstruction or amalgamation), or is placed under
official management or enters into a compromise or other
arrangement with its creditors or any class of them or an
administrative receiver or an administrator or receiver is
appointed to carry on its business or to take control or
possession of any of its assets for the benefit of its
creditors or any of them; or
(d) PARTNER violates any law relating to the prevention of
corruption or bribery in PARTNER's home country or any
jurisdiction in which PARTNER is carrying out any of the
works.
7.3 PARTNER shall not be entitled to terminate or abandon this Service
Level Agreement, except in the event that:
(a) TELKOM takes or has taken or instituted against it any action
or proceeding, whether voluntary or compulsory, which has as
an object or may result in the winding up of TELKOM (other
than a voluntary winding up by members for the purpose of
reconstruction or amalgamation), or is placed under official
management or enters into a compromise or other arrangement
with its creditors or any class of them or an administrative
receiver or an administrator or receiver is appointed to carry
on its business or to take control or possession of any of its
assets for the benefit of its creditors or any of them;
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(b) TELKOM fails to pay any amounts due, or becomes unable to pay
for amounts to become due, for a period of more than six (6)
months and during discussions between the Parties during such
period the Parties cannot agree on a satisfactory mechanism
for payment and/or security for payments owed, including
establishment of an escrow account or the provision of a bank
guarantee by TELKOM acceptable to PARTNER;
(c) an event of Force Majeure continues for a period in excess 6
months; or
(d) pursuant to Article 5; and
(e) termination of the MPPA.
7.4 Termination of this Service Level Agreement shall be without prejudice
to any accrued rights of the Parties up to the date of termination.
7.5 The termination of this Service Level Agreement or other specific
agreement shall not affect or prejudice any provisions of those
agreements which are expressly or by implication provided to continue
in effect after such termination.
7.6 In the event of termination, the Parties agree to waive the provisions
of Article 1266 of the Indonesian Civil Code to the effect necessary to
effect termination of this Service Level Agreement in accordance with
Article 7 without the need for a court decision.
8. GENERAL PROVISIONS
8.1 Severance. If any provision of this Service Level Agreement or part
thereof is rendered void, illegal or unenforceable by any legislation
to which it is subject, it shall be rendered void, illegal or
unenforceable only to that extent and it shall in no way affect or
prejudice the enforceability of the remainder of such provision or the
other provisions of this Service Level Agreement. The invalidity,
illegality or unenforceability of any provision in this Service Level
Agreement under the laws of any one jurisdiction shall not in itself
affect the validity, legality and enforceability of such provision
under the laws of any other jurisdiction.
8.2 Remedies. No remedy conferred by any of the provisions of this Service
Level Agreement is intended to be exclusive of any other remedy that is
otherwise available at law or otherwise, and each and every other
remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or
otherwise. The election of any one or more of such remedies by either
Party shall not constitute a waiver by such Party of the right to
pursue any other available remedies.
8.3 Release and Indulgence. No failure on the part of either Party to
exercise and no delay on the part of either Party in exercising any
right hereunder will operate as a release or waiver thereof, nor will
any single or partial exercise of any right under this Service Level
Agreement preclude any other or further exercise of it. The rights and
remedies provided in this Service Level Agreement are cumulative and
not exclusive of any right or remedy provided by law.
8.4 Entire Agreement. This Service Level Agreement embodies all the terms
and conditions agreed upon between the Parties as to the subject matter
of this Service Level Agreement, and supersedes all prior
representations, arrangements, understandings and agreements between
the Parties whether written or oral (including without limitation, the
RfP and such agreed amendments thereto).
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8.5 Counterparts. This Service Level Agreement may be executed in any
number of counterparts, each of which shall constitute an original and
take effect without reference to any other counterpart, and together
the counterparts shall be deemed as one and the same agreement.
8.6 No Partnership. Notwithstanding the reference to the terms "partner"
and/or "partnership" in this Service Level Agreement, the relationship
between the Parties shall not constitute a legal partnership. Neither
Party has the power or the right to bind, commit or pledge the credit
of the other Party.
8.7 Successors and Assigns. This Agreement shall enure to the benefit of
and be binding upon the Parties and their respective successors and
permitted assigns.
CHAPTER 2 - THE SERVICES
9. GENERAL PRINCIPLES
9.1 PARTNER agrees that the Services to be provided to TELKOM will be
provided with all-due care in a timely and professional manner by
properly skilled personnel employed by a world class leading technology
supplier with specialized telecommunications expertise, knowledge or
infrastructure and who have the necessary technical expertise,
financial resources and strategic business interest to provide the
Services to TELKOM.
9.2 PARTNER acknowledges that a key mutual objective of the Parties is to
support the development of the Indonesian telecommunications industry
and economy by maximizing the amount of equipment, materials, manpower
and services procured locally within Indonesia. In addition, PARTNER
acknowledges that in order to provide the Services in a timely fashion,
there must be sufficient qualified personnel located at key locations
within Indonesia to respond quickly. Accordingly, at all times after
the Commencement Date, PARTNER shall ensure that sufficient personnel
of suitable qualifications are available to provide the Services.
TELKOM and PARTNER should mutually agree the availability of PARTNER's
personnel within Indonesia based at Locations.
9.3 The scope and responsibilities of TELKOM's operations and maintenance
services are as detailed in Appendix L.
9.4 Without prejudice to Article 9.2, PARTNER shall provide TELKOM with an
initial organization chart and a qualified Service Delivery Manager
(SDM) with his/her qualifications. All personnel trained by PARTNER
will be suitable assigned and PARTNER shall ensure the Deliverables
meet with the KPIs under this Agreement. All replacements must be
qualified and appropriate for the provision of the Services.
9.5 The Services as described in Article 9.1 comprise of five main types:
(a) Fault Management including the Help Desk Support Service,
Fault Management Service and Emergency Support Service;
(b) On-Line Information/Reporting including the On-line
Information Service and General Reporting Service;
(c) Hardware Change Management including the Hardware Change
Management Service, Hardware Maintenance Service, Spare Parts
Repair and Replacement Service;
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(d) Software Update including the Software Update Service and
Software Upgrade Support Service; and
(e) Operations and Maintenance Assistance including Operations and
Maintenance Assistance Service and Knowledge Transfer Service.
9.6 The Services to be provided by PARTNER shall apply to all Deliverables
and shall cover all faults or defects to the Deliverables regardless of
how caused or by whom, in accordance with the terms of this Agreement.
10. FAULT MANAGEMENT
10.1 The Help-Desk Support Service
(a) PARTNER shall operate the Help-Desk in accordance with this
Agreement. Contact details of the Help-Desk are set out in
Appendix A. The Help-Desk may be accessed by telephone, email
or fax.
(b) The Help-Desk will be located in Jakarta. The Help-Desk will
be operational between 8:00 am and 5:00 pm Mondays to Fridays
(Indonesia - Jakarta local time) and Emergency Support Service
will be operational and manned 24 hours a day, 365/366 days a
year.
(c) PARTNER shall ensure that each time a call is made or an email
or fax is sent to the Help-Desk, the call, email or fax will
be attended to by a human operator within 3 minutes of its
receipt by the Help-Desk. During this 3 minutes waiting
period, any outages known to PARTNER should also be conveyed
to TELKOM where necessary.
(d) Within 10 minutes of receiving the call, the email or fax, the
Help-Desk will issue a Trouble Ticket and assign the problem
to a specific TSC-2 technician to be attended to. The Help
Desk will inform TELKOM of the name and contact information of
the TSC-2 assigned to the trouble ticket.
(e) All emergency problems will be dealt with under the Emergency
Support Service described below.
(f) Each Trouble Ticket issued will be classified as either:
(i) "Critical";
(ii) "Major"; or
(iii) "Minor".
(g) The definitions of "Critical", "Major" and "Minor" are set
out- in Appendix B. Whether a fault is considered "Critical",
"Major" or "Minor" will be determined by TELKOM initially but
may be adjusted (to be more or less critical) after
consultation with PARTNER.
(h) Once the problem has been resolved to the satisfaction of
TELKOM, the PARTNER Help Desk will close the corresponding
Trouble Ticket.
(i) PARTNER agrees to record all Help-Desk calls and to document
all relevant actions undertaken by it as a result of the call,
[in such formats as may be reasonably required by TELKOM,
which include without limitation separate reports covering
help desk activity and fault status].
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10.2 The Fault Management Service
(a) PARTNER shall provide a fault-management service to TELKOM to
correct and rectify faults with the System and/or Sub-system
in a timely manner (the "Fault Management Service").
(b) A "fault" under this Article shall include all defects,
interruptions or disturbances to the System and/or Sub-system
and the failure of the System and/or Sub-system to meet the
Technical Specifications.
(c) Each time a fault is reported by TELKOM to PARTNER under this
service, PARTNER will ensure that it:
(i) responds to TELKOM within the prescribed Callback
Time;
(ii) provides to TELKOM a Temporary Fix to the fault
within a prescribed timeframe; and
(iii) provides to TELKOM a Permanent Fix to the fault
within a prescribed timeframe.
The prescribed timeframes for fault resolution under this
service is detailed in the Fault Resolution Schedule set out
in Appendix B based on the how critical the fault is. In all
cases, the required fault location, information gathering, and
fault resolution will be the responsibility of and will be
performed by PARTNER with the reasonable cooperation of
TELKOM's staff.
(d) Whether a fault is considered "Critical", "Major" or
"Minor" will be determined by TELKOM initially but may be
adjusted (to be more or less critical) after consultation with
PARTNER.
(e) PARTNER shall hold meetings with TELKOM at least once a week
to discuss the faults encountered at the Main Help Desk and at
each DIVRE level and their resolution and shall suggest
whether any actions should be carried out to prevent similar
faults from arising in the future.
10.3 The Emergency Support Service
(a) The Help-Desk will provide the Emergency Support Service.
(b) The Emergency Support Service shall be available on-line, by
fax and by phone 24 hours a day, 7 days a week, 365/366 days a
year (as applicable).
(c) PARTNER's technical support personnel (TSC2) shall be required
to call TELKOM's representative (TSC1) back within 15 minutes
of receiving TELKOM's call, email or fax at the Help Desk for
an emergency problem. All emergency problems will be recorded
as 'Critical Faults' by the Help Desk.
(d) PARTNER's technical support personnel should reach the site of
the problem within the stated transportation time in Appendix
C from receiving TELKOM's call, email or fax at the Help Desk
relating to an emergency problem.
(e) PARTNER will provide a Temporary Fix within ninety (90)
minutes after arriving at the site of the problem.
(f) PARTNER will provide a Permanent Fix within 24 hours of
receiving the call, e-mail or fax.
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10.4 For revenue impacting breakdowns caused by System non-performance,
PARTNER will pay compensation to TELKOM, based on the mechanism
described in Appendix C.
11. ON-LINE INFORMATION/REPORTING
11.1 The On-Line Information Service
(a) PARTNER shall set up and maintain a secure extranet
information service facility to enable on-line access by
authorised TELKOM personnel only (the "On line Information
Service") which will make available the following types of
information:
(i) Periodic Technical Information
(ii) Operations and Maintenance Procedures
(iii) Fault Handling Procedures
(iv) Product Documentation
(v) Trouble Ticket Resolution Database
(vi) Generic Failure Reports
(vii) Global Training Service Offering and course catalog
as well as the other categories of information as set out in
Appendix D. The information provided will be updated according
to the frequency set out in Appendix D.
11.2 The General Reporting Service
PARTNER shall provide the following types of reports to TELKOM during
the period of this Agreement on the frequency set out in Appendix D:
(i) Help Desk Activity Report
(ii) Fault Status Report
(iii) Operation and Maintenance Assistance Report
(iv) Hardware Swap (Replacement) Status Report
(v) Report for each Emergency Call with updated status
(vi) Software Updates Report
(vii) Quarterly Repair Status Report.
12. HARDWARE CHANGE MANAGEMENT
12.1 The Hardware Change Management Service
(a) PARTNER will maintain an inventory list of spare parts and
periodically update it in accordance with Appendix D to ensure
the delivery of spare parts within agreed lead-times. Any
spares delivered to TELKOM shall be recorded in the Hardware
Report and PARTNER shall forward all Hardware Reports to
TELKOM. The Hardware Report will describe the changes only
based on TELKOM requests to provide the spare parts needed for
a period of time.
(b) In the event that PARTNER wishes to introduce a new or updated
hardware component as a replacement of an older component,
PARTNER shall first demonstrate to TELKOM the proper working
of the replacement hardware at TELKOM's test bed.
12.2 The Spare Parts Repair and Replacement Service
(a) PARTNER shall be responsible for supplying spare part
replacement and repair services for the Network based on the
timeframes set out in Appendix E. All spare
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parts supplied shall be in good working order and be ready
for service on delivery.
(b) PARTNER shall provide, if requested by TELKOM, information
concerning the spare parts database and PARTNER shall deliver
the spare parts within agreed lead-times.
(c) PARTNER shall make available critical and non-critical spare
parts 24 hours a day, 7 days a week, 365/366 (as relevant)
days a year and PARTNER shall supply them on request by TELKOM
within 3 hours of receiving the request. PARTNER shall supply
non-critical spare parts by noon on the next Business Day from
the time the request is received by PARTNER. If necessary,
PARTNER shall deliver the non-critical spare parts on the
same day to TELKOM.
(d) Without prejudice to PARTNER's obligation to provide spare
parts under this Service Level Agreement, PARTNER shall ensure
that TELKOM shall be able to purchase spare parts at the same
unit prices set out in the relevant Purchase Order(s), from
time to time as required, for a period of at least 5 years
after the expiration of this Service Level Agreement.
(e) PARTNER shall also provide TELKOM on a yearly basis (prior to
each JPS) with a detailed list of all spare parts, their level
of criticality to the Network, the length of time required to
procure such spare parts, the likelihood of failure of the
component, equipment, software or parts thereof that such
spare parts may replace.
(f) PARTNER shall provide TELKOM with quarterly reports no later
than March 31, June 30, September 30 and December 31 each year
on its delivery performance for spare parts and on spare parts
usage.
12.3 The Hardware Maintenance Service
(a) PARTNER will provide replacement units or parts for the
hardware of the System to maintain the operation of the
equipment to meet the required operation and maintenance
parameters.
(b) PARTNER shall supply the replacement units or parts to TELKOM
with a delivery note mentioning the unit type, the reference
to the notified type of the faulty replacement units or parts,
the serial number(s) of the delivered replacement units or
parts, the total number of pieces to be delivered and the
TELKOM failure report number. This information shall also be
added to the Hardware Report.
(c) To implement required hardware changes in the Network, PARTNER
will assist TELKOM on a case-by-case basis.
13. SOFTWARE UPDATE
13.1 The Software Update Service
(a) PARTNER shall be responsible for the proper functioning of all
software provided by PARTNER to TELKOM in connection with any
Deliverables.
(b) PARTNER shall provide software services under this Agreement
that shall consist of software software updates (including bug
fixes and patches and software maintenance services) required
to optimize System performance. Additional PARTNER shall be
required to achieve interoperability with the NSS of Samsung
Electronics Co. Ltd. At no extra cost to TELKOM, while with
respect to achieving interoperability with other
13
external systems PARTNER's obligations shall be subject to
agreement on the terms and conditions, including payment of
costs, for the services provided.
(i) Software updates. PARTNER shall implement
all software release updates, bug fixes and patches
released by PARTNER, PARTNER shall:
- Work with TELKOM to determine the reasons
for software bugs that may cause distortion
in Network performance;
- Prepare release notes stating the reasons
for each bug fix or patch for TELKOM's
approval;
- Implement the bug fixes or patches on
TELKOM's network;
- Present an implementation report to TELKOM
after each software release update, bug fix
and patch; and
- Track all bug fixes or patches by using a
structured software change management
process.
(ii) External interoperability. Subject to agreement with
TELKOM on terms and conditions, including payment,
PARTNER shall provide assistance for connecting
PARTNER provided equipment with other existing or
future systems in the Network. In this connection,
PARTNER shall:
- Work with TELKOM and the vendor of any
external systems to determine the software
customization required to achieve
interoperability;
- Prepare release notes stating the reasons
for each software customization for TELKOM's
approval;
- Prepare and customize the software upon
receipt of TELKOM's approval;
- Install the customized software on the
Network;
- Provide TELKOM with an implementation report
after each installation; and
- Perform software version maintenance.
(c) All software updates shall be completely tested by PARTNER
prior to installation. Any update shall take place during late
night hours (2:00 to 4:00 am), if possible.
(d) PARTNER shall ensure that any interruption to the Network is
minimised and in any event for no longer than 15 minutes
unless agreed by the Parties during any software update or
maintenance.
(e) PARTNER shall ensure that the previous software version can be
reinstalled without any interruption to the Network in the
event that the new software updates do not load properly or
perform satisfactorily. In the event that the update or
maintenance appears unlikely to be completed before 4:00 am,
PARTNER shall re-install the previous software version and
re-attempt the update or maintenance the following day.
(f) Any interruption to the Network beyond the period agreed in
Article 13(d) (including without limitation any service
interruption or system downtime) caused by a software update
that results in a revenue loss for TELKOM shall be treated as
a Critical fault and compensation shall be payable by PARTNER
to TELKOM in accordance with Appendix C.
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13.2 The Software Upgrade Support Service
(a) PARTNER will provide software upgrades when deemed necessary
by TELKOM to meet its internal and external business
requirements in relation to operation and maintenance of the
Network.
(b) TELKOM may require the upgrade for reasons including (but not
limited to):
(i) addition of new features
(ii) support of new call processing functionality
(iii) support of new standards
(iv) hardware upgrade (requiring accompanying software
upgrade).
(c) For each of the software upgrades provided to TELKOM, PARTNER
shall ensure that the following requirements are fulfilled:
(i) full backward compatibility
PARTNER shall ensure full backward compatibility with
existing hardware, software, interfaces, and related
matters, provided that PARTNER shall not be
responsible for compatibility with system changes
made solely by TELKOM.
(ii) training
PARTNER shall provide training to qualified TELKOM
personnel regarding the changes made to the software.
(iii) business case assistance
For every major software upgrade, PARTNER shall work
closely with TELKOM to prepare a business case
justifying the upgrade. The business case will
detail the cost implications and potential
benefits which TELKOM can expect to derive from the
upgrade.
(d) The cost of software upgrade services (such as developing a
business case for the upgrade and implementing the upgrades)
are included in the Services.
(e) In case PARTNER proposes to discontinue support of any
software version, PARTNER shall provide an upgrade to the
next version upgrade at least 3 months before the proposed
date of withdrawal of support. TELKOM may require PARTNER to
reinstall the previous version at any time before the proposed
date of withdrawal of support, and if so PARTNER shall
continue to provide support for the previous version.
(f) The provisions of Article 13.1 shall apply mutatis mutandis to
any software upgrade. In particular, PARTNER shall ensure that
the operation of the Network is not interrupted during any
software upgrade. Any interruption to the Network beyond the
period agreed in Article 13.1(d) (including without limitation
any service interruption or system downtime) caused by a
software upgrade that results in a revenue loss for TELKOM
shall be treated as a Critical fault and compensation shall be
payable by PARTNER to TELKOM in accordance with Appendix C.
13.3 Software Upgrade Fees
(a) PARTNER shall offer all new software upgrades to TELKOM once
they are developed and provide TELKOM with a quote for the fee
for the software only. TELKOM may at its sole discretion
decide to accept or decline each upgrade.
15
14. OPERATION AND MAINTENANCE ASSISTANCE
14.1 The Operations and Maintenance Assistance Service
(a) PARTNER shall provide in writing to TELKOM a high-level
description of the tasks required to be performed to assist
TELKOM's staff to operate and maintain the System and/or
Sub-system at the relevant Location/Sites, including
information relating to maintenance supervision, maintenance
audits, system configuration management, database management,
and troubleshooting as set out in Appendix F, for TELKOM's
approval. The detailed plan for preventive maintenance
procedures and detailed timing and criteria for routine daily,
weekly, monthly and annual maintenance checks and preventive
replacement and repair of the Network or its constituent parts
shall be discussed at the initial JPS and will be agreed upon
by the Parties.
(b) PARTNER shall provide to TELKOM operation and maintenance
assistance services on Business Days during normal working
hours in Indonesia at the relevant Location/Site as mutually
agreed by the Parties. PARTNER will provide 2 (two) Operation
and Maintenance engineers for a 3-year period who will be
located at TELKOM sites. Additional personnel will be provided
to provide operation and maintenance services on a case by
case basis during the period of this Agreement.
Notwithstanding the above, PARTNER shall remain responsible
for meeting the KPIs and shall adjust the maintenance
assistance team if necessary to ensure that the KPIs will be
met.
(c) TELKOM may also require PARTNER's experts to work outside
normal working hours during weekends and public holidays, if
exceptional circumstance make this necessary. In any such
event, TELKOM shall endeavor to give at least one-week prior
notice to PARTNER of its request, and agree any terms and
conditions of such request with PARTNER.
(d) PARTNER shall provide monthly reports to TELKOM on the type
and amount of operation and maintenance services supplied to
TELKOM.
(e) PARTNER, shall make available the required skills and
competences to ensure the Deliverables are meet with the tasks
of description required and mutually agreed by TELKOM and
PARTNER.
(f) TELKOM will use it best efforts to ensure that its team of
trained engineers is retained on the Project during the period
of this Agreement to provide for consistency and continuity.
14.2 The Knowledge Transfer Service
(a) In addition to the classroom training to be provided pursuant
to Article 47 of the Master Procurement Partnership Agreement,
PARTNER shall use its best efforts to ensure that adequate
operations and maintenance knowledge is transferred through
on-the-job training ("OJT") to TELKOM personnel on a
Location/Site basis to provide them with the skills to
operate, maintain and manage the Network by the third
anniversary of the Commencement Date. For this purpose,
PARTNER shall ensure that its operation and maintenance staff
is available on-site at TELKOM's premises as much as possible
on a dedicated basis.
(b) The OJT training programme and schedule shall be prepared on
an annual basis by PARTNER and approved by TELKOM during the
JPS and will cover at least:
16
(i) the contents of the OJT System Operating Manual and
the Education System Information;
(ii) system troubleshooting for the Network;
(iii) higher level skills including system parts, RF parts,
system debugging methods and emergency Temporary Fix
methods for the Network.
(c) The objective of PARTNER's training shall be that the TELKOM
support personnel (TSC1) will be able to solve a successively
higher proportion of faults by themselves. PARTNER shall
conduct 2-3 day workshops to progressively transfer knowledge
to TELKOM support personnel. The workshops will be conducted
at least once per quarter in each DIVRE.
(d) The Progress and success of PARTNER's training efforts will be
evaluated at each DRM.
15. ESCALATION PROCEDURE FOR SERVICE LEVEL FAILURES
15.1 PARTNER shall use its best endeavors to promptly rectify any
service level failures. If the failure has not been rectified
to TELKOM's satisfaction, the Parties shall escalate the
resolution of the problems as follows:
(a) in the first instance by discussions between their
respective DIVRE managers;
(b) secondly, by discussions between their respective
Project Managers;
(c) thirdly, by discussions between their respective
Account/Business Managers;
(d) finally, by discussions between the senior executives
of PARTNER in [country] and the senior executives of
TELKOM.
CHAPTER 3 - PAYMENT TERMS AND CONDITIONS
16. PAYMENT AMOUNT
16.1 The Services provided by PARTNER shall be paid for by TELKOM as
follows:
The Services provided by PARTNER pursuant to this Agreement will be
paid quarterly, based on calculations of a 60% Basic Fee and 40%
Variable Fee (based on the average cumulative installed lines - SLA
variable cost per line calculated based on the deployment plan in the
RfP)
(a) Basic Fees payable in equal installments shall be calculated
in accordance with Appendix J, This amount shall be due upon
delivery to TELKOM of an invoice for each installment,
accompanied by the following documents, or such additional
documents as may reasonably be required by TELKOM:
(i) Invoice covering letter;
(ii) Tax invoice ("Faktur Pajak") and tax payment slip
(/SSP) ("Surat Setoran Pajak")
(iii) Simple receipt ("Kuitansi")
(b) Variable Fees shall be calculated according to Appendix J.
This amount shall be due upon delivery to TELKOM of an invoice
for the agreed sum, accompanied by the
17
following documents, or such additional documents as may
reasonably be required by TELKOM:
(i) Invoice covering letter;
(ii) Tax invoice (Faktur Pajak") and tax payment slip
(/SSP) ("Surat Setoran Pajak");
(iii) Simple receipt ("Kuitansi");
(iv) KPI compliance certificate issued by TELKOM;
(v) Calculation of Variable Fee, KPI reduction (if any)
and loss of revenue compensation (if any).
16.2 In the event that this Service Level Agreement is terminated by
TELKOM, TELKOM will pay amounts then due on a pro rata basis.
16.3 The Services are provided on a fixed fee basis. The only additional
costs which TELKOM shall be liable for will be the actual cost price of
replacement spare parts where the part replaced is shown to be damaged
due to the willful or intentional misconduct, of a TELKOM employee, or
actions resulting in or causing a Critical fault solely caused by
TELKOM personnel. For the avoidance of doubt, the cost of removing the
damaged parts and installing the new parts are not costs reimbursable
by TELKOM but are deemed to be covered under the Hardware Change
Management Service and Spare Parts Repair and Replacement Service.
17. EVALUATION OF KEY PERFORMANCE INDICATORS ("KPIS") COMPLIANCE
(a) TELKOM will evaluate PARTNER's compliance with the KPI
annually. TELKOM shall be entitled to reduce proportionately
the Annual Fees payable under this Service Level Agreement
based on failure to achieve the required KPI compliance levels
as shown in Appendix I.
(b) The mechanism to evaluate the performance of PARTNER as
measured by the KPI is set out in Appendix I.
IN WITNESS WHEREOF, the Parties have caused this Service Level Agreement to be
signed by their duly authorized representative on the day and year first above
written.
PERUSAHAAN PERSEROAN (PERSERO) ERICSSON CDMA CONSORTIUM
PT TELEKOMUNIKASI INDONESIA TBK. ERICSSON WIRELESS COMMUNICATION INC.
[STAMPED]
By /s/ Kristiono By /s/ Mark Cratsenburg
------------------------------- -------------------------------
Name : Kristiono Name : Mark Cratsenburg
Title : President Director Title : Attorney-in-Fact of
Ericsson Wireless Communication
Inc.
18
PT ERICSSON INDONESIA
By /s/ Ulf Mansson
--------------------------------
Name : UIf Mansson
Title : President Director
PT INFRACELL NUSATAMA
By /s/ Djoko N. Labbaika
--------------------------------
Name : Djoko N. Labbaika
Title : President Director
19