EXHIBIT 4.35
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
AND
MOTOROLA INC.
SERVICE LEVEL AGREEMENT
DATED MARCH 24, 2003
TABLE OF CONTENTS
NO. PAGE
- --- ----
1. Definitions ............................................................. 1
2. Force Majeure ........................................................... 3
3. Assignment and Subcontracting ........................................... 3
4. Governing Law and Language .............................................. 4
5. Settlement of Disputes .................................................. 4
6. Notices and Authorized Representatives .................................. 6
7. Termination ............................................................. 7
8. General provisions ...................................................... 8
9. General Principles ...................................................... 9
10. Fault Management ........................................................ 11
11. On-line Information/Reporting ........................................... 13
12. Hardware Change Management .............................................. 14
13. Software Update ......................................................... 15
14. Operation and Maintenance Assistance .................................... 18
15. Escalation Procedure for Service Level Failures ......................... 19
16. Payment Amount .......................................................... 19
17. Evaluation of Key Performance Indicators ("KPIs") Compliance ............ 20
Appendix A - Help Desk Contact Information
Appendix B - Fault Management Service
Appendix C - Compensation for Revenue Loss
Appendix D - On-Line Information Service Requirements
Appendix E - Spare Part Turn Around Time
Appendix F - Operation and Maintenance Assistance Service-Tasks
Appendix G - Operation and Maintenance Assistance Service-Composition
Appendix H - KPI Compliance and Payment
Appendix I - KPI Measurement Methodology
Appendix J - SLA Fee Calculation
Appendix K - PARTNER Service Proposal
Appendix L - Scope and Responsibilities of TELKOM's Operations and Maintenance
Services
SERVICE LEVEL AGREEMENT
THIS SERVICE LEVEL AGREEMENT is made as of 24 March 2003.
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 Jl. 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) MOTOROLA INC., a corporation established under the laws of the State of
Delaware, U.S.A., acting through its Global Telecom Solutions Sector,
having offices at 1501 Shure Drive, Arlington Heights, IL60004, U.S.A.,
duly represented by Allen Ma, in his capacity as Vice President &
General Manager, Asia, hereinafter 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 Procurement Partnership
Agreement of even date ("MPPA") for the procurement of radio access and
core network assets contemplated in the T-21 Program and for
implementing the T-21 Program.
B. TELKOM has requested PARTNER to render operation and maintenance
support services, and PARTNER has agreed to provide these services in
accordance with this Service Level Agreement.
C. Accordingly, pursuant to the MPPA, 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 MPPA (including the technical
terms defined in Appendix 23 - (Technical Terms) of the MPPA) 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" means the first day after the
Commissioning of the Deliverables in
the first Purchase Order which will
be issued under the Master
Procurement Partnership Agreement,
or earlier as requested by TELKOM.
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(c) "FAULT MANAGEMENT" means all measures and procedures to
prevent and/or resolve Network
faults to meet the KPIs as defined
in this Service Level Agreement.
(d) "HELP DESK" means the help-desk support service
to be provided by PARTNER as set out
in Article 10.1.
(e) "KPI" (KEY PERFORMANCE
INDICATORS) 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,
PDN's NEM (these mentioned equipment
are grouped as PDN) and other
similar or related equipment
supplied by PARTNER, including all
associated software and components
acquired from PARTNER.
(h) "SYSTEM" means two or more Sub-systems
forming a network that is ready for
commercial service.
(i) "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 document issued by
PARTNER's support desk identifying
the problem alerted.
(l) "TSC1" means TELKOM's support personnel
located at each Location dealing
with operation and maintenance
activities.
(m) "TSC2" means PARTNER's support
infrastructure located in Jakarta or
Medan and/or PARTNER's specialized
technical support staff and
designers who have the capability of
evaluating complex network problems.
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.
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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 otherwise defined or the
context otherwise requires, references to a "day" shall mean a calendar
day covering 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 re-
enacted.
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 manufacture, 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 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
2.2 Any occurrence belonging to a 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, drive test or other matters provided for in this Service
Level Agreement 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
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3.1 PARTNER shall not, without the prior written consent of TELKOM (such
consent not to be unreasonably withheld or delayed), transfer its
obligations under this Service Level Agreement. Notwithstanding this
agreement, TELKOM hereby agrees that PARTNER may assign or sub-contract
the in country Services portion of this Agreement to its subsidiary, PT
Motorola Indonesia, but only to the extent that such assignment or
sub-contracting (i) does not prejudice PARTNERS's Local Content
obligations under the MPPA, (ii) does not relieve PARTNER of
responsibility under this Service Level Agreement; and (iii) does not
encumber any of the moneys due or becoming due under this Service Level
Agreement. The Parties agree that TELKOM shall not be required to give
its consent to any encumbrance of moneys due or becoming due under this
Service Level Agreement if by reason or consequence of such consent the
assignee shall have direct or indirect recourse to TELKOM.
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 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 shaft 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.
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5. SETTLEMENT OF DISPUTES
5.1 If any disputes arising between TELKOM and PARTNER in connection with
or arising out of 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 Parry 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 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.
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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 the Dispute or any arbitration conducted under
this Agreement in relation to that Dispute, in each case subject to
those disclosures permitted by Article 5.
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 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 time to time notified in writing:
For TELKOM:
Perusahaan Peseroan (Persero) PT Telekomunikasi Indonesia Tbk.
Jl. Japati No. 1, Bandung 40133
Attention : President Director
Fax : (022) 440-313
For PARTNER:
Motorola Inc.
c/o PT Motorola Indonesia
Gedung BKI II, Suite 3001
Jalan Jend, Sudirman Kav, 44-46
Jakarta 10210, Indonesia
Fax : (61-21) 571-9064
Attention : General Manager
Cc: Motorola Electronics Pte. Ltd.
12 Ang Mo Kio St 64
Motorola Innovation Center Level 3A
Ang Mo Kio Industrial Park 3
Singapore 569088
Fax : (65) 6484-0933
Attention : Commercial Contracts Manager
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.
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The initial point of contacts are listed below:
PARTNER's Point of Contact:
Project Manager
c/o PT Motorola Indonesia
Gedung BRI II, Suite 3001
Jalan Jend. Sudirman Kay. 44-46
Jakarta 10210, Indonesia
Tel : (021) 251-3050
Fax : (021) 571-9064
E-mail : didit.herawan@motorola.com
TELKOM Point of Contact:
Head of Fixed Wireless Division (as Project Manager)
Jl, Kebun Sirih, Kav. 12
Jakarta, Indonesia
Tel : (021) 385-7777
Fax : (021) 344-0707
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 remain 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 the 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
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(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;
(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;
(c) an event of Force Majeure continues for a period in excess of
6 months; or
(d) termination 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 dale 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.
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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).
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 Service Level Agreement shall enure to the
benefit of and be binding upon the Parties and their respective
successors and permitted assigns.
8.8 This Agreement does not establish an employer-employee relationship and
PARTNER is for all purposes, an independent contractor.
8.9 No modification, amendment or other change may be made to this
Agreement or any part thereof unless reduced to writing and executed by
authorized representatives of both Parties.
8.10 TELKOM agrees to comply with all applicable export laws and regulations
of the United States of America, the United Kingdom, or such other
country of origin. Specifically, but without limitation, TELKOM agrees
that it will not resell or re-export Motorola products or technical
data in any form without obtaining appropriate export or re-export
licenses from the respective governmental authority of the United
States of America, the United Kingdom or other country of origin.
8.11 The Parties agree that to their knowledge there are no laws or
regulation specifically applicable to sales to an entity owned or
partly owned by a government entity which would apply to the Parties in
the specific circumstances of this Service Level Agreement.
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.
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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 mutually agree that PARTNER'S personnel within;
Indonesia will be based at Medan, Sumatera, provided that PARTNER will
also provide support services throughout DIVRE 1 during the period of
this Service Level Agreement.
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 suitably 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;
(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, subject to the terms of this Agreement.
9.7 In the event a defect occurs during the period of this Service Level
Agreement, PARTNER will repair or replace the product or take other
appropriate remedial actions, provided that in taking any such actions
the extent of PARTNER's liability shall be as stated in this Service
Level Agreement.
9.8 In connection with the Services to be provided by PARTNER under this
Service Level Agreement, Motorola shall take the appropriate remedial
actions but shall not incur financial liability and TELKOM agrees to
waive all penalties that may arise under this Service Level Agreement
in respect of the following:
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(a) acts of vandalism;
(b) acts or omissions amounting to negligence or intentional
misconduct of TELKOM employees; or
(c) events of force majeure.
The costs and other terms and conditions of the remedial action
required to be taken pursuant to this Article 9.8 shall be as mutually
agreed between the Parties.
9.9 Neither Party shall in any circumstance be liable to the other for
indirect or consequential losses or damages.
9.10 Article 36 of the MPPA (Change Request Procedures) shall apply, mutatis
mutandis, to this Service Level 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 or Medan. 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 (by phone call only) 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
actual 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 in accordance with Appendix B (to be more or
less critical) after consultation with PARTNER.
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(h) After notification to TELKOM, the PARTNER Help Desk will close
the corresponding Trouble Ticket when one of the following
conditions is met:
(i) TELKOM agrees to close a Trouble Ticket; or
(ii) the resolution proves to work and is confirmed by
TELKOM; or
(iii) initial diagnosis has been completed, the suggestion
or data collection for a possible next occurrence has
been provided but the problem does not occur for
thirty (30) days; or
(iv) an investigation action is pending with TELKOM but
the action has not been completed within fourteen
(14) days, unless otherwise agreed; or
(v) a reasonable resolution has been provided but TELKOM
does not implement it within thirty (30) days, unless
otherwise agreed.
(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.
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) Except with respect to Critical faults which shall be analyzed
and discussed with TELKOM immediately after being resolved,
PARTNER shall hold meetings with TELKOM at least monthly 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.
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10.3 The Emergency Support Service
(a) The Help-Desk will provide the Emergency Support Service.
(b) The Emergency Support Service shall be available 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 at the Help Desk relating to an
emergency problem.
(e) PARTNER will provide a Temporary Fix within sixty (60) minutes
(after arriving at the site of the problem, if remote support
is not capable of resolving the problem).
(f) Except in circumstances where a software patch is required
necessitating a longer period of time, PARTNER will provide a
Permanent Fix within 24 hours of receiving the call.
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
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(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 that
have occurred within the past month based on TELKOM requests.
(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 facility or a
mutually agreed location.
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 Cut in Appendix E, All spare 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 needed to fully operate the Network 24 hours a day, 7
days 8 week, 365/366 (as relevant) days a year and PARTNER
shall supply critical spare parts 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. PARTNER will supply the required spares and
TELKOM will arrange to stock the spares at TELKOM offices in
each city where Sites will be located, provided that PARTNER
staff will be responsible for inventory maintenance and
transport of spares from the city offices to any Sites.
(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, provided
that upon PARTNER delivering a notice to TELKOM of the end of
life of a particular hardware product, PARTNER shall continue
to provide at least repair and return support for that product
for a period of five (5) years from the date of such
end-of-life notice, such support period to extend, as
applicable, beyond the period of the Service Level Agreement
and provided further that in its end-of-life notification to
TELKOM, PARTNER shall inform TELKOM of the proposed date
through which TELKOM shall be able to buy additional spares.
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(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, subject to the Software License.
(b) PARTNER shall provide software services under this Agreement
that shall consist of software updates (including bug fixes,
software release updates, patches and software maintenance
services) required for the proper functioning of the Network.
Additionally PARTNER shall achieve inter-operability with the
applicable NSS vendor at no extra cost to TELKOM. For the
avoidance of doubt, any further inter-operability required of
PARTNER by TELKOM subsequent to the first case of successfully
achieving inter-operability shall be performed by PARTNER,
provided that PARTNER's obligations in such instance shall be
subject to agreement on the terms and conditions, including
payment of costs for the services provided. PARTNER will bear
all of its costs for achieving inter-operability until the
first successful inter-operability has been achieved in
accordance with the inter-Operability Commitment Agreement.
(i) Software updates. PARTNER shall implement all
software release updates, bug fixes and patches
released by PARTNER with support from TELKOM. 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;
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- 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 system(s) 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 13.1(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.
13.2 The Software Upgrade Support Service
(a) When software upgrades are available, and subject to Article
13.2, PARTNER will provide such software upgrades when
requested by TELKOM to meet its internal and external business
requirements.
(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
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(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 and in circumstances where full backward
compatibility does not exist, PARTNER shall provide
full disclosure to TELKOM of all technical aspects of
such incompatibility. In circumstances where existing
hardware may need to be upgraded or replaced, such
hardware upgrades will be done as per mutually agreed
terms, conditions and prices. 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
TELECOM 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, the following actions have been agreed:
(i) if the discontinuance of software support is the
result of a software maintenance policy mandated by
PARTNER, then PARTNER shall provide an upgrade to the
next version within three (3) months of the notice of
end of life, at no extra cost to TELKOM;
(ii) if the discontinuance of software support is
necessitated because the software has reached its end
of life, and in circumstances where TELKOM has
notified PARTNER in writing that it does not wish an
upgrade to the new version, then (A) if these
circumstances occur within the initial 3-year period
of this Service Level Agreement, PARTNER shall
continue to provide software support until the end of
such initial 3-year period, or (B) if these
circumstances occur outside the initial 3-year period
of this Service Level Agreement, then the software
support to be provided by PARTNER shall be on
mutually agreed terms and conditions;
(iii) if the discontinuance of software support is
necessitated because the software has reached its end
of life, and in circumstances where TELKOM has
notified PARTNER in writing that it wishes an upgrade
to the new version, then PARTNER shall provide the
next version upgrade within three (3) months of the
notice of end of life, and the
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cost of the upgrade software (but not the cost of the
services to perform the upgrade, such costs being
included in the cost of the Services) shall be on
mutually agreed terms and conditions.
(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) Except as to costs in the circumstances referred to in Article
13.2(e)(i), 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.
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 personnel will be provided to
provide operation and maintenance services on a case by case
basis during the period of this Agreement. 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.
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(e) PARTNER shall make available the required skills and
competencies to ensure the Deliverables meet the required
tasks description as 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:
(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. TELKOM will
evaluate improvements in network performance and in the
ability of its technicians on an annual basis pursuant to the
criteria specified in Appendices H and I.
(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;
(e) thirdly, by discussions between their respective
Account/Business Managers;
(d) finally, by discussions between the senior executives of
PARTNER and the senior executives of TELKOM.
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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, within thirty (30) days of correct invoicing as
described below, based on calculations of a 60% Basic Fee and 40%
Variable Fee (based on the cumulative installed lines - SLA variable
cost per line calculated based on the deployment plan in Appendix 7 of
the MPPA)
(a) Basic Fees payable in equal quarterly 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 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 rate basis.
16.3 The Services are provided on a fixed fee basis. The only additional
costs for which TELKOM shall be liable are the actual unit price
of replacement spare parts where the part replaced is shown to be
damaged by reason of the events set forth in Article 9.8. 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.
16.4 In the event withholding taxes are applied to any payments made by
TELKOM to PARTNER under this Service Level Agreement, TELKOM shall
provide PARTNER with a copy of the withholding tax receipt within
fourteen (14) days from the date of payments.
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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) MOTOROLA INC.
PT TELEKOMUNIKASI INDONESIA Tbk.
[STAMP]
By /s/ Kristiono By /s/ Allen Ma
----------------------- -----------------------------
Name : Kristiono Name : Allen Ma
Title : President Director Title : Vice President & General
Manager, Asia
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