T/2017/015 Request for Proposal (RFP) ‐ Robotic Concierge ... Tende… · Robotic Concierge...

Tender Ref. T/2017/015 RFP –

T/2017/015 Request for Proposal (RFP) ‐ Robotic Concierge Services

1 Background

1.1 The Cyberport

Cyberport is a creative digital cluster with over 900 community members. It is managed by Hong Kong Cyberport Management Company Limited (HKCMCL) which is wholly owned by the Hong Kong SAR Government. With a vision to build a legacy of entrepreneurial excellence that establishes Cyberport as a leading global innovation and technology hub, Cyberport is committed to facilitating the local economy by nurturing digital industry start‐ups and entrepreneurs, driving collaboration to pool resources and create business opportunities, and accelerating digital adoption through strategic initiatives and partnerships. Equipped with an array of state‐of‐the‐art tech facilities and a cutting‐edge broadband network, the Cyberport community is home to four grade‐A intelligent office buildings, a five‐star design hotel, and a retail entertainment complex.

1.2 Further information about the Cyberport can be found at http://www.cyberport.hk

2 Objectives of this Project

2.1 To realise our vision of establishing Cyberport as a global leading innovation and digital

technology hub, Cyberport focuses on building key clusters of digital technology, namely FinTech, eCommerce, Internet of Things (IoT) / Wearables and Big Data/ Artificial intelligence (AI) to foster the development of Hong Kong into a “Smart City”. With a committed team of professionals providing all rounded value added services to support our digital community and an array of state‐of‐the‐art tech facilities, Cyberport is the flagship for Hong Kong’s digital tech industry. This includes further use of robotic and automation technology. To employ the robotic technology, Cyberport is now seeking external expertise to assist in provide, design and development of a proof‐of‐concept model of intelligent platform and application for providing tour guide service (Concierge), access to information and applications for self‐service payment by using proven AI technology.

2.2 Moreover, HKCMCL would like to implement an AI‐enabled robot for the concierge services. The robot will work side‐by‐side with Cyberport’s Facility Management Operator (FMO) to assist with visitor requests, personalize the guest experience.

2.3 The robot shall learn to interact with guests and respond to their questions in a friendly and

informative manner. The robot shall use a combination of APIs, including dialog, speech to text and text to speech, to enable it to greet guests upon arrival and to answer questions about Cyberport, services and hours of operation.

2.4 By tapping into Cyberport’s Wayfinding system, the robot shall also assist guest to find way

within Cyberport. The guest just need to quote the name, the robot could be able to lead to the designated lift lobby for getting the access with greeting to be given upon arrival.

3 Scope of Services


3.1 The scope of the tender is to design, engineer, supply, install, test and commission a proof of concept (POC) trial of an AI platform and applications including but not limited to natural language processing and non‐human interaction. [Mandatory] 1

3.2 Propose necessary tools for development, execution and maintenance of the knowledge base of the AI platform. [Mandatory]

3.3 The proof of concept trial should be able to demonstrate the use of AI technology in a particular area as included in the following scenarios:

3.3.1 POC to demonstrate the use of AI technology as a Concierge to physically direct visitors around the place, introduce them relevant information about the place and response general questions such as Cyberport services information. [Mandatory]

3.3.2 POC to show the use of AI technology as an assistant in the process of Shuttle Bus Ticket payment process, including below functional modules:

Payment: Pay by TNG payment [Mandatory]

Payment: Pay by credit card and by Octopus card [Desirable]

Top up service for TNG payment via credit card or Octopus card [Desirable]

Printing: Print thermal Receipt as Bus Ticket [Mandatory]

Other intelligent functions: Virtual AI Helper; Notification to users via mobile (if any) [Desirable]

3.4 Setup of system environment for development and testing (HKCMCL will provide

infrastructure and necessary operation system Licenses) [Mandatory]

3.5 Provide at least two sets of robots together with its charging kid/apparatus to demonstrate the capabilities during Services Period [Mandatory]

3.6 Provide English conversation library with 300 Question and Answer Pairs, and 10

Conversational Flows [Mandatory] 3.7 Provide necessary consultation services to assist HKCMCL during the course of development

and subsequent on‐going support [Mandatory]

3.8 The service platform shall be capable to extend to other uses (e.g. special event greeting) through customisation [Desirable]

4 Service Period

The Service Provider shall serve a one‐year term (i.e. from 1 January 2018 to 31 December 2018), with an option for HKCMCL to renew for a further period not exceeding four years at HKCMCL’s discretion [Mandatory].

5 Specifications/Requirements:

1 The proposed Service must fulfill all requirements marked in [Mandatory]. Any proposal which fails to fully meet the mandatory requirements will not be considered. Additional marks will be given if the Service can meet the [Desirable] requirements.


5.1 Must be completed according to the Project Plan in Clause 7.5 below. [Mandatory]

5.2 Proposed consultants should meet the following qualifications:

5.2.1 At least 4 years solid experience in developing applications/solutions using proven AI technology that must be presence in the market at least 10 years [Mandatory]

5.2.2 The AI technology should be able to support the following languages:

[Mandatory]

English

Traditional Chinese (Native Hong Kong Cantonese)

Simplified Chinese (Putonghua) [Desirable]

French

German

Spanish

Filipino

Indonesian

Italian

Dutch

Finnish

Turkish

Arabic

5.2.3 The AI technology should have at least 2 local paid commercial project references using similar technology (preferably with local Cantonese) in past 12 months. [Mandatory]

5.2.4 Regular review by HKCMCL on the project deliverables are required. [Mandatory]

5.2.5 Consultants should log and follow‐up on issues found during these reviews. [Mandatory]

5.2.6 Consultants may be required to work on‐site and in non‐office hours. [Mandatory]

5.2.7 The service platform should show the ability of future integration with Cyberport backend systems (e.g. Customer Relationship Management system). [Desirable]

5.2.8 HKCMCL reserves the rights to request change of personnel where necessary. [Mandatory]

6 Security requirement

The system shall comply with the following regulations and policy of HKCMCL, in particular the data protection: [Mandatory]

6.1.1 Cyberport Information Security Policy

6.1.2 IT Security Guidelines and Regulations under Cyberport Information Security Manual

References of standards and guidelines that HKCMCL adopts can be provided upon request in writing.

7 Project Deliverables and Schedule:


7.1 Warranty [Mandatory]

The Service Provider should provide maintenance, support and warranty for the whole solution for one (1) year after final acceptance. The support must be 12x5x4 (i.e. 9am – 9pm, Monday to Friday) with a response time of 4 hours.

The Service Provider’s staff will arrive on‐site within response time commitment (from the time HKCMCL make such request) for on‐site support and resolve the issue within resolution time commitment.

The Service Provider must submit in their technical proposal the ‘Escalation Procedures’ with required contact names, E‐mail’s and mobile numbers in order to solve any technical and non‐technical problems throughout the life cycle of the project and warranty period.

7.2 Source Code for Custom‐Made Software [Mandatory]

If the proposed solution is a custom‐made software rather than a commercial‐off‐the‐shelf software, the system source code and any associated files, reference files, and development software (and related documentation and licenses) used to compile, develop, and build, etc. the executable code or “source code” must be provided to HKCMCL. The source code should be well documented in accordance with industry software engineering practices.

The software developer shall retain intellectual property rights. HKCMCL shall have a license for perpetuity for use as it applies solely to this project, including the right to modify/enhance. The software code may not be sold or used, in part or in whole, in any other project or application other than that intended by this RFP, in part or in whole, by HKCMCL or any other party. If a Sub‐Service Provider is used to write the software, the Service Provider shall include, as part of the documentation submittal, a signed letter on Sub‐Service Provider letterhead, granting HKCMCL ownership, use, and modification rights of the code and documentation as defined herein.

7.3 Project Management [Mandatory]

The Service Provider shall have direct responsibility for the provision of the Services. The Service Provider shall be responsible for meeting specific performance targets and demonstrating continuous improvements in sales, cost, quality and service.

The Service Provider shall establish a project team to carry out all works for the project.

• Dedicate a Project Manager (the major point of contact to HKCMCL) to assure the timeliness and quality of the supplied services and deliverables, to coordinate work and collaboration with all stakeholders of the project, HKCMCL staff and Service Providers (if any), and to drive project deliverables associated with the proposed solution.

• Conduct and hold regular project meetings with HKCMCL’s project representatives.

• Prepare and make available all project documentations according to the agreed schedule.

7.4 Project Deliverables [Mandatory]

The following document deliverables are expected:

• Project Plan • User Requirements Document • Detailed Design Report • Functional Test Plan • Acceptance Test Plan • Configuration Document • Hardware and Software Inventory


• Updates to existing Cyberport operations and security documentation • Minutes of all meetings with various concerned parties during the project period

In addition, the Service Provider shall provide relevant training to the HKCMCL’s user and system administrator. The training syllabus shall cover all functional requirements and system requirements. The Service Provider shall provide a training handbook to facilitate the learning experience to be provided to the trainees.

7.5 Project Plan [Mandatory]

The implementation works are expected to take up to three (3) months to complete.

The Service Provider should propose a Project Plan meeting all of the following criteria: a) Key Milestone 1 – AI Environment should be accepted by HKCMCL by 8 December 2017 (Key

Date 1). b) Key Milestone 2 ‐ Acceptance Test of General Frequently Asked Questions of Phase 1 should

be completed successfully by 31 December 2018 (Key Date 2). c) Key Milestone 3 ‐ Acceptance Test of Tour Guide and Shuttle Bus Ticketing should be

completed successfully by 31 January 2018 (Key Date 3).

7.6 System requirement

HKCMCL has its own IT infrastructure to support HKCMCL users' daily operation as Appendix C attached.

To maintain the stability and efficiency, HKCMCL would like to implement the system with the below requirement.

• The implementation should leverage and integrate with existing IT infrastructure and avoid introduction of duplicated technologies

• A development and testing environment for on‐going support should also be implemented

• Backup and restore function

7.7 Hardware requirement

HKCMCL will provide server platform which running on virtual environment. The basic virtual machine (VM) specification stated in the below table.

Virtual machine specification

1. Resources

1.1 vCPU x 2: Intel E5‐2690 8 cores

1.2 Memory: Minimum 8GB, maximum support up to 32GB

1.3 Storage: Minimum 160GB, maximum support up to 2000GB (2TB)

1.4 Supporting Operating System (tenderer should include required license in the Proposal):

Windows Server Standard 2012 R2

Linux (CentOS 6.7)

1.5 Backup service for virtual instance included

The Service Provider should specify the number of VM required and the detailed configuration requirement of each VM in their technical proposal.

The Service Provider should responsible for setup and configure the VM, including but not


limited to the installation of Operating System.

If the Service Provider consider the VMs provided by HKCMCL do not fit their design, the Service Provider should include their own server hardware. A detailed specification (i.e. brand, model and detailed configuration) of each server should be included.

7.8 Turnkey solution

The Service Provider should provide a turnkey solution comprising of application software, operation systems and hardware cater all the requirements in this Clause 7.

8 Terms and Conditions

8.1 The Articles of Agreement and Conditions of Contract enclosed in Appendix D should form part of the contract documents upon award of the Contract.

9 Content of Proposal to be submitted by the tenderer

9.1 Technical Proposal

(a) Company profile; (b) Company’s professional and industry experience; (c) List of similar projects; brief description including clients’ name(s), project sum(s) and

project size; (d) Complete the Requirement Table in Appendix A; (e) Description of how the proposed system can meet each of the requirements described in

Appendix A; (f) Detailed Project Plan; (g) A proposed organization chart for the administration and execution of the Contract; and (h) CVs of the proposed Project Manager and personnel that will be assigned to work on this

project.

9.2 Fee Proposal

(a) The tenderer shall complete the Schedule of Rates [please be consistent: Price Table or SOR?] in Appendix B attached;

(b) The tenderer shall complete the Offer To be Bound, which is completed, signed, witnessed and dated in Appendix C attached;

(c) The tenderer may accept the contents of the Schedules of Rates as correct or alternatively, make any alteration, addition or omission to the printed text of the Schedules according to its interpretation and/or calculations. Any alteration, addition or omission be made to the printed text of the Schedules must be initialed by the person who signs the Form of Tender.

Should any errors, discrepancies or apparent underpricing be discovered by HKCMCL, HKCMCL may query these in writing with the tenderer. Such query is not to indicate a proposal to change the tender price, the tenderer may offer only to stand by his tendered price or withdraw his tender. No query or series of queries shall be considered comprehensive.

9.3 Lodging of Tender

(a) The tender shall be placed in the Tender Box situated at Units 1102‐1104, Level 11, Cyberport 2, 100 Cyberport Road, Hong Kong, before 3:00 p.m. (Hong Kong Time) on 31 October 2017 ("the tender closing date") in plain, sealed envelopes (without any


identification of the name of the tenderer).

(b) Tenderer shall make three (3) duplicates of the tender and submit them together with the original tender. Total four (4) sets.

In the event a typhoon signal No. 8 or above is hoisted or a black rainstorm warning signal is issued between Hong Kong time 9:00 a.m. and 3:00 p.m. on the submission closing date, the deadline for submission will be extended to 3:00 p.m. on the following working day.

IMPORTANT NOTES: Tenderers must not send your submissions to any other representatives of HKCMCL before or after the submission deadline. Failure to comply with this requirement will render your proposals invalid. Proposals shall remain valid for one hundred and twenty (120) days after the date of tender closing.

9.4 Schedule of Tendering

The schedule of tender is set out below and any change to the schedule will be confirmed by email to Tenderers.

Activity

Key Date

Questions raised by Tenderers On or before 24 October 2017 (Tuesday)

Date for lodging of tender

On or before 3:00 p.m. 31 October 2017 (Tuesday)

9.5 Tender Enquiries

Any enquiries from the tenderers relating to this tender document shall be in writing, clearly stating the tender reference “T/2017/015” and shall be made on or before 31 October 2017 to:

Manager – Compliance and Procurement Units 1102‐1104, Level 11, Cyberport 2, 100 Cyberport Road, Hong Kong E‐mail: [email protected] or by fax : (+852) 3027 0385

HKCMCL, at its discretion, may respond to all questions and be forwarded to all tenderers without reference to who raised the question(s).

10 Evaluation Process

10.1 Proposals will be reviewed by an assessment panel. Selected tenderers may be required to make a presentation and to clarify any points of their proposals to the assessment panel.


10.2 Assessment will be based on the Technical and Fee proposal on the following weighted score

Technical Proposal (40%)

Fee Proposal (60%)

10.3 Marking Scheme

Assessment Criteria Maximum Score

Technical Score

40 (Passing mark: 20)

TS1 Demonstration of excellent capabilities of the system in the following areas:

a. Tools for maintenance of the knowledge base of the AI

b. Other intelligent functions

c. Capable to extend to other uses through customisation

d. Language supported by AI technology

e. Ability of future integration with Cyberport’s backend systems.

f. Developer & Testing Environment

30

TS3 Demonstration of proven track records of similar projects in the last 2 years

5

TS4 Profile and experience of the team members involved in this project

5

Fee Score

60

Total Maximum Score: 100

10.3.1 Evaluation – Stage 1:

Only those Technical Proposals can attain:

a. an average 20 marks or above (determined by adding the aggregate total of Technical Scores earned from all assessors, dividing that number by total number of assessors); and

b. at least 50% votes in the Selection Committee awarded a passing mark (i.e. 20 marks or above);

will be short‐listed to Stage 2 of the evaluation.



Calculation of weighted score for Technical Proposals:

40

1


The evaluation of the price score will be based on the Tenderer’s 2‐year total cost of ownership.

A maximum price score of 60 will be allocated to the Fee Proposal in which the highest mark is attained. The weighted price score of the Fee Proposal will be worked out in accordance with the following formula:

60 1 2


The combined technical/price score for the short‐listed proposals will be worked out. The tender proposal with the highest combined score will normally be selected, subject to financial vetting.

HKCMCL reserves the right to make one award or multiple awards, and the right to reject all proposals in their sole discretion.

11 Personal data provided

11.1 Tenderer’s personal data provided in the tender will be used for tender evaluation and contract award purposes. If insufficient and inaccurate information is provided, the tender may not be considered.

11.2 Tenderer’s personal data provided in the tender may be disclosed to the parties responsible for tender evaluation within HKCMCL and its advisers.

12 Consent to disclosure

12.1 HKCMCL shall have the right to disclose to any third party whenever it considers appropriate or upon request by any third party (written or otherwise), without further reference to or consent from the successful tenderer or any other tenderer, information contained in the tender documents, including, without limitation, particulars of the awarded contract, the date of award, the name and address of the successful tenderer, the scope of work and the contract amount.

13 Probity and Anti‐Collusion

13.1 Tenderers are reminded to comply with the following matters relating to probity and anti‐collusion requirement regarding this RFP.

Offering Gratuities


HKCMCL is a public body under the Prevention of Bribery Ordinance, Cap 201 (the "POB Ordinance"). HKCMCL does not permit any of its employees, consultants, officers and agents to accept any advantage in connection with the award and execution of this contract. The offer of an advantage as defined in the POB Ordinance to any employees, consultants, officers and agents of HKCMCL with a view to influencing the award of this contract may constitute an offence under the POB Ordinance. The tenderer shall not, and shall procure that its employees, agents and sub‐Service Providers shall not, offer, solicit or accept an advantage as defined in the POB Ordinance in connection with the tendering and execution of this contract.

Failure to so procure or any act of offering, soliciting or accepting advantage referred to in Paragraph 16.1 above committed by the tenderer or by an employee, agent or sub‐Service Provider of the tenderer shall, without affecting the tenderer’s liability for such failure and act, result in its tender being invalidated.

Warranty Against Collusion

(i) By submitting a tender, a tenderer is deemed to have represented and warranted to HKCMCL that in relation to the tender: a) save with the prior written consent of HKCMCL, it has not communicated and will not

communicate to any person other than HKCMCL the amount of any price submitted in its tender;

b) it has not fixed and will not fix the amount of any price submitted in its tender by arrangement with any person;

c) it has not made and will not make any arrangement with any person as to whether it or that other person will or will not submit a tender; and

d) it has not otherwise colluded and will not otherwise collude with any person in any manner whatsoever in the tendering process

(ii) In the event that a tenderer is in breach of any of the representations and/or warranties in

Clause (i), HKCMCL shall be entitled to, without compensation to any person or liability on the part of HKCMCL: a) reject the tenderer’s tender; b) if HKCMCL has accepted the tender, withdraw its acceptance of the tender; and c) if HKCMCL has entered into the Contract with the tenderer, terminate the Contract.

(iii) By submitting a tender, a tenderer is regarded to have undertaken to indemnify and keep indemnified HKCMCL against all losses, damages, costs or expenses arising out of or in relation to any breach of any of the representations and/or warranties in Clause (i).

(iv) A breach by a tenderer of any of the representations and/or warranties in Clause (i) may

prejudice its future standing as a Service Provider or service provider of HKCMCL.

(v) Clause (i) shall have no application to a tenderer’s communications in strict confidence with its own insurers or brokers to obtain an insurance quotation for computation of the prices quoted in its tender, or with its professional advisers, consultants or sub‐Service Providers to solicit their assistance in preparation of its tender.

(vi) The rights of HKCMCL under Clause (i) to (iv) are in addition to and without prejudice to any

other rights or remedies available to it against any tenderer.

14 Other terms and conditions


14.1 All materials and data in connection with the RFP are required to be treated as confidential information and must not be made available to other parties without the prior written consent of HKCMCL.

14.2 HKCMCL is not obliged to accept any proposal and will not be responsible for any cost in preparing, submitting or elaborating on the proposal.

14.3 HKCMCL is not bound to accept the proposal with the highest score or the lowest price.

14.4 Without prejudice to the generality of other general conditions of tender and special condition of tender, HKCMCL may reject a tender which in the opinion of the HKCMCL is unreasonably low in terms of price and may therefore affect the tenderer’s capability to carry out and complete the Contract and/or deliver work of the quality required in accordance with the terms of the Contract.

14.5 HKCMCL reserves its right to reject any and all proposals received as a result of this request, or to negotiate separately with competing proposers.

14.6 HKCMCL reserves its right to change any of the above any time at its absolute discretion without notice to service providers.

14.7 HKCMCL reserves the right to cancel this RFP at any time during the process for lack of response or for other reasons deemed appropriate by HKCMCL.

Tender Ref. T/2017/015 RFP Appendix A – Page 1

Appendix A

Requirement Table

The proposed Service must fulfill all requirements marked in ‘Mandatory’. Any proposal which fails to fully meet the mandatory requirements will not be considered. Additional marks will be given if the Service can meet the ‘Desirable’ requirements.

Item Requirements (Mandatory/ Desirable/ Future)

Whether Complied with (Yes / No)

1 Scope of Services

1.1 The scope of the tender is to design, engineer, supply,

install, test and commission a proof of concept (POC) trial

of an AI platform and applications including but not

limited to natural language processing and non‐human

interaction.

Mandatory

1.2 Propose necessary tools for development, execution and maintenance of the knowledge base of the AI platform.

Mandatory

1.3 POC to demonstrate the use of AI technology as a

Concierge to physically direct visitors around the place,

introduce them relevant information about the place and

response general questions such as Cyberport services

information.

Mandatory

1.4 POC to show the use of AI technology as an assistant in

the process of Shuttle Bus Ticket payment process,

including below functional modules:

Payment: Pay by TNG payment.

Mandatory

Payment: Pay by Credit Card and by Octopus card. Desirable

Printing: Print thermal Receipt as Bus Ticket. Mandatory

Top up service for TNG payment via credit card or

Octopus card.

Desirable

Other intelligent functions: Virtual AI Helper;

Notification to users via mobile (if any).

Desirable

1.5 Setup of system environment for development and

testing (HKCMCL will provide infrastructure and necessary

operation system Licenses).

Mandatory

1.6 Provide at least two sets of robots together with its

charging kids/apparatus to demonstrate the capabilities

during Services Period.

Mandatory

1.7 Provide English conversation library with 100 Question

and Answer Pairs, and 5 Conversational Flows.

Mandatory




1.8 Provide necessary consultation services to assist HKCMCL

during the course of development and subsequent on‐

going support.

Mandatory

1.9 The service platform shall be capable to extend to other uses (e.g. special event greeting) through customisation.

Desirable

2 Service Period

2.1 The Service Provider shall serve a one‐year term (i.e. from

1 January 2018 to 31 December 2018), with an option for

HKCMCL to renew for a further period not exceeding four

years at HKCMCL’s discretion.

Mandatory

3 Specifications/Requirements

3.1 At least 4 years solid experience in developing

applications/solutions using proven AI technology that

must be presence in the market at least 10 years.

Mandatory

3.2 Proposed consultants should meet the following qualifications:

At least 4 years solid experience in developing applications/solutions using proven AI technology that must be presence in the market at least 10 years.

Mandatory

3.3 The AI technology should be able to support the following

languages:

English

Traditional Chinese (Native Hong Kong Cantonese)

Simplified Chinese (Putonghua)

Mandatory

French

German

Spanish

Filipino

Indonesian

Italian

Dutch

Finnish

Turkish

Arabic

Desirable

3.4 The AI technology should have at least 2 local paid

commercial project references using similar technology

(preferably with local Cantonese) in past 12 months.

Mandatory




3.5 Regular review by HKCMCL on the project deliverables are

required.

Mandatory

3.6 Consultants should log and follow‐up on issues found

during these reviews.

Mandatory

3.7 Consultants may be required to work on‐site and in non‐

office hours.

Mandatory

3.8 The service platform should show the ability of future

integration with Cyberport backend systems (e.g.

Customer Relationship Management system).

Desirable

3.9 HKCMCL reserves the rights to request change of

personnel where necessary.

Mandatory

4 Security Requirement

4.1 The system shall comply with the following regulations and policy of HKCMCL, in particular the data protection: [Mandatory]

Cyberport Information Security Policy

IT Security Guidelines and Regulations under Cyberport Information Security Manual

Mandatory

5 Project Deliverables and Schedule

5.1 The Service Provider should provide maintenance, support and warranty for the whole solution for one (1) year after final acceptance. The support must be 12x5x4 (i.e. 9am – 9pm, Monday to Friday) with a response time of 4 hours.

The Service Provider’s staff will arrive on‐site within response time commitment (from the time HKCMCL make such request) for on‐site support and resolve the issue within resolution time commitment.

The Service Provider must submit in their technical proposal the ‘Escalation Procedures’ with required contact names, E‐mail’s and mobile numbers in order to solve any technical and non‐technical problems throughout the life cycle of the project and warranty period.

Mandatory




5.2 Source Code for Custom‐Made Software

a) If the proposed solution is a custom‐made software rather than a commercial‐off‐the‐shelf software, the system source code and any associated files, reference files, and development software (and related documentation and licenses) used to compile, develop, and build, etc. the executable code or “source code” must be provided to HKCMCL. The source code should be well documented in accordance with industry software engineering practices.

b) The software developer shall retain intellectual property rights. HKCMCL shall have a license for perpetuity for use as it applies solely to this project, including the right to modify/enhance. The software code may not be sold or used, in part or in whole, in any other project or application other than that intended by this RFP, in part or in whole, by HKCMCL or any other party. If a Sub‐Service Provider is used to write the software, the Service Provider shall include, as part of the documentation submittal, a signed letter on Sub‐Service Provider letterhead, granting HKCMCL ownership, use, and modification rights of the code and documentation as defined herein.

Mandatory

5.3 Project Management

The Service Provider shall have direct responsibility for the provision of the Services. The Service Provider shall be responsible for meeting specific performance targets and demonstrating continuous improvements in sales, cost, quality and service.

The Service Provider shall establish a project team to carry out all works for the project.

• Dedicate a Project Manager (the major point of contact to HKCMCL) to assure the timeliness and quality of the supplied services and deliverables, to coordinate work and collaboration with all stakeholders of the project, HKCMCL staff and Service Providers (if any), and to drive project deliverables associated with the proposed solution.

• Conduct and hold regular project meetings with HKCMCL’s project representatives.

• Prepare and make available all project documentations according to the agreed schedule.

Mandatory




5.4 Project Deliverables

The following document deliverables are expected:

• Project Plan • User Requirements Document • Detailed Design Report • Functional Test Plan • Acceptance Test Plan • Configuration Document • Hardware and Software Inventory • Updates to existing Cyberport operations and

security documentation • Minutes of all meetings with various concerned

parties during the project period

Mandatory

5.5 The Service Provider shall provide relevant training to the HKCMCL’s user and system administrator. The training syllabus shall cover all functional requirements and system requirements.

Mandatory

5.6 Project Plan

The implementation works are expected to take up to three (3) months to complete.

The Service Provider should propose a Project Plan meeting all of the following criteria:

a) Key Milestone 1 – AI Environment should be accepted by HKCMCL by 30 November 2017 (Key Date 1).

b) Key Milestone 2 ‐ Acceptance Test of General Frequently Asked Questions of Phase 1 should be completed successfully by 31 December 2017 (Key Date 2).

c) Key Milestone 3 ‐ Acceptance Test of Tour Guide and Shuttle Bus Ticketing should be completed successfully by 31 January 2018 (Key Date 3).

Mandatory

6 Developer & Testing Environment

6.1 The vendor shall provide distinct / separate development,

testing and production environments for testing,

development, training, quality control.

Mandatory

6.2 The testing environment shall include a selected amount

of the production data defined using a template.

Desirable

Tender Ref. T/2017/015 RFP Appendix B – Page ‐ 1 ‐

Appendix B Price Table

1.1 Schedule of Rate for Mandatory Contract Period

1.1.1 Recurrent Charge

Amount (HK$)

(1) Monthly charge for first month to twelfth month

(2) Other Cost [Please state the formula and calculation]

Total Recurrent Cost (“A” = (1) x 12 + (2))

1.1.2 One-off Setup Charge

(3) Implementation Services (“B”)

Total Contract Value (“A” + “B”)

1.1.3 Optional items

Provide the charges for services that exceeded the monthly charges. State the formula

and circulation.

Item Other Services Charges Description Formula and Circulation

(1)

1.2 Schedule of Rate for Extended Contract Period

Tender Ref. T/2017/015 RFP Appendix B – Page ‐ 2 ‐

Payment Schedule for the Optional Extension the Contract Period for a

further period not exceeding twelve months.

Amount (HK$)

(1) Monthly charge for second 12 months

(2) Other Cost [Please state the formula and calculation]

Total Cost for Extending Service for 12 Months (“C”= (5) x12 + (6))

Total Cost for of Ownership (TCO) for 2 Year (“A” + “B” + “C”)

Tenderer (Company Name): _____________________________________________

Authorized Name with Company Chop: _______________________________________

Tender Ref. T/2017/015 RFP Appendix C ‐ Page 1

Appendix C Existing IT Infrastructure of HKCMCL

Network diagram:

Tender Ref. T/2017/015 RFP Appendix C ‐ Page 2

Major Hardware specification:

Cisco UCS M3 blade server

EMC VNX 5300 SAN Storage

Cisco IronPort C170 SMTP Gateway

Major Software specification:

Microsoft Windows Server 2008 R2 SP1 with Hyper‐v

Microsoft SharePoint 2013 Standard

Microsoft SQL 2012 Standard

Microsoft Office Web App 2013

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Appendix D

HONG KONG CYBERPORT MANAGEMENT COMPANY LIMITED

(香港數碼港管理有限公司)

Articles of Agreement

for

Robotic Concierge Services

(Tender Ref. T/2017/015)

ARTICLES OF AGREEMENT

THIS AGREEMENT is made on the day of 2017. BETWEEN:‐

(1) HONG KONG CYBERPORT MANAGEMENT COMPANY LIMITED (香港數碼港管理

有限公司) of Units 1102‐1104, Level 11, Cyberport 2, 100 Cyberport Road, Hong

Kong (together with its successors and assigns, “HKCMCL”); and (2) [Company name in English and in Chinese] of [address], a company incorporated in

and in accordance with the laws of Hong Kong (the “Service Provider”). NOW IT IS HEREBY AGREED as follows:‐ 1. Words and expressions used in these Articles of Agreement shall have the same

meaning as are respectively assigned to them in the Conditions of Contract (the “Contract”) attached hereto.

2. In consideration of the payments to be made by HKCMCL to the Service Provider as

set out in the Contract, the Service Provider hereby covenants with HKCMCL to provide the Service and perform the Service in accordance with the Contract.

3. HKCMCL hereby covenants to pay to the Service Provider in consideration of the

execution of the Service such sums as may be payable to the Service Provider in accordance with the Contract at the times and in the manner prescribed by the Contract.

4. The Contract comprises the entire agreement between the parties hereto relating to

the transactions provided for in the Contract and supersedes any previous agreements between the parties relating thereto or any part thereof. Save to the extent that any statement, condition, qualification, warranty, representation or undertaking made in the tender submission, or in any discussion or correspondence thereon or relating thereto, is expressly incorporated in the Contract, the same is not so incorporated and is hereby withdrawn.

IN WITNESS whereof this Agreement has been executed as a deed the day and year first above written. SIGNED BY ) For and on behalf of ) Hong Kong Cyberport Management ) Company Limited )

香港數碼港管理有限公司 )

Hong Kong Cyberport Management Company Limited (HKCMCL) in the presence of :‐ SIGNED BY ) For and on behalf of ) ) ) i (the Service Provider) in the presence of :‐

Appendix E

HONG KONG CYBERPORT MANAGEMENT COMPANY LIMITED

(香港數碼港管理有限公司)

Conditions of Contract

for

Robotic Concierge Services

(Tender Ref. T/2017/015)

T/2017/015 CoC ‐ Page 1

Interpretation

In this Contract, unless the context otherwise requires:

a) “Key Milestones” means the satisfactory completion of setup of the AI Environment and the

satisfactory completion of Acceptance Tests.

b) “Key Dates” means the acceptance date of the AI Environment and the Acceptance Tests.

c) use of the terms “including”, “include” or “includes” shall be interpreted to be followed by the phrase

“without limitation”;

d) no rule of construction shall apply to the disadvantage of a party because that party was responsible

for the preparation of this Contract or any part thereof;

e) references to (or to any specific provision of) this Contract or any other document shall be construed

as references to this Contract, that provision or that document as modified, amended or

supplemented from time to time with the agreement of the relevant parties and in force at any

relevant time;

f) clause headings, schedule headings, annexure titles and the index have been inserted for ease of

reference only and shall not affect construction or interpretation;

g) words importing the singular meaning include the plural meaning and vice versa;

h) words of the masculine gender include the feminine and neuter genders and vice versa;

i) references to System, Works, Project, Equipment and Software shall include references to any part

thereof where the context so requires;

j) references to a person includes an individual, firm, body corporate, unincorporated association,

government or governmental, semi‐governmental or local authority or agency;

k) references to Clauses, sub‐clauses, refer to clauses and sub‐clauses to the Conditions and references

to paragraphs refer to paragraphs in the Schedules;

l) the Appendices and Schedules shall be deemed to form part of this Contract;

m) words denoting an obligation on a party to do any act, deed, matter or thing include an obligation to

procure that it be done and words placing a party under a restriction include an obligation not to

permit, cause or allow (so far as it lies within its ability to prevent) contravention of the restriction;

n) references to any party shall be to it and its permitted assigns and any person for the time being

entitled (by assignment, novation, operation of this Contract or otherwise) to that party’s rights

under this Contract (or any interest in those rights) or who, as administrator, liquidator or otherwise,

is entitled to exercise those rights; and in particular those references include a person to whom those

rights (or any interest in those rights) are transferred or passed as a result of merger, division,

reconstruction or other form of reorganisation of that party;

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o) where a word or expression is defined, cognate words and expressions shall be construed accordingly.

Except where otherwise specifically provided, if there is any conflict or inconsistency between the terms

of the main body of this Contract, the Schedules and the terms of any documents generated in accordance

with this Contract or incorporated by reference, the order of priority shall be the terms of the main body

of this Contract, then the Schedules, and then any other documents generated in accordance with this

Contract.

1 Construction of Contract

1.1 Unless the context otherwise requires, the defined terms in this document shall have the meanings

ascribed to them in the above.

1.2 If there is any inconsistency, ambiguity or discrepancy in or between any of the documents which make

up the Contract, the following order of precedence shall apply:

1.2.1 the Articles of Agreement;

1.2.2 these Conditions of Contract;

1.2.3 the Request for Proposal; and

1.2.4 the Service Provider’s proposal.

2 Appointment of Service Provider

2.1 Neither HKCMCL nor any consultant, nor any person, firm or company associated with or employed by

HKCMCL or any consultant shall owe any duty of care or otherwise be liable to the Service Provider,

whether under this Contract or otherwise, in respect of any errors in or omissions from any site

investigation reports, documents or other information made available to Service Provider whether prior

to or after the Effective Date, or any differences between the nature or extent of conditions actually

encountered in the execution of the Works and the nature or extent of conditions disclosed in or implied

by the information in any site investigation reports, documents or other information whether or not

caused by the said errors or omissions.

2.2 The Service Provider acknowledges and confirms that:

2.2.1 Prior to the Effective Date, it has carried out all necessary reviews, investigations and analyses to satisfy itself of the nature of

(a) the Specification, Drawing, the Site and the Works to be executed; and

(b) any other matters relevant to the compliance with its obligations in accordance with this Contract;

2.2.2 it shall not be entitled to recover any additional payment howsoever caused or to extension of time for completion of the Project, for costs or delays which arise from any issue related to the Site;

T/2017/015 CoC ‐ Page 3

2.2.3 it shall not be entitled to recover any additional payment howsoever caused or extension of time for completion of the Project in respect of reliance on any error, omission or difference as referred to in Clause 2.1;

2.2.4 it has or will have all information, rights, hardware, software, equipment, personnel and premises which it can reasonably foresee will be necessary to enable it to carry out the Works in accordance with this Contract;

2.2.5 it shall not be entitled to make any claim against HKCMCL under this Contract on the grounds of its assessment, misunderstanding or misapprehension of the Project including the Project Plan, the Specification, the Site and the Works to be executed or on the grounds that incorrect or insufficient information was given to it by any person, whether or not employed by HKCMCL. The Service Provider shall not be relieved from any risks or obligations imposed on or undertaken by it under this Contract on any such grounds.

2.2.6 Nothing in the Contract confers on the Service Provider the exclusive right to provide any of the Works or any other services to HKCMCL.

2.2.7 The Service Provider acknowledges and agrees that the terms of this Clause are fair and reasonable in all the circumstances.

3 Preparation of the Site

3.1 The Service Provider shall supply to HKCMCL for approval in a reasonable time before the relevant Delivery

Date any request for storage space and working space on Site. Any such request shall be accompanied

by plans and drawings and explanatory notes explaining the reasons for the need for such space.

HKCMCL shall approve such request subject to any reasonable adjustments it considers necessary.

3.2 The Service Provider shall be responsible for the provisioning, installation and erection of all storage and

working space and other structures and facilities as have been approved by HKCMCL pursuant to Clause

3.1 unless HKCMCL indicates in its approval that such facilities are already available on Site and that the

Service Provider may have use of such facilities on such terms and conditions as HKCMCL may specify and

always in accordance with the terms of this Contract.

3.3 The Service Provider shall supply to HKCMCL in reasonable time before commencement of Works, a site

preparation plan and such further information and assistance as may be necessary to enable HKCMCL to

prepare the Site for the carrying out of the Works and to provide proper environmental and operational

conditions for the efficient working and maintenance of the Equipment. For this purpose, the Service

Provider shall make available to HKCMCL free of charge, for a reasonable period of time, the advice of a

suitably qualified engineer. HKCMCL shall use reasonable endeavours to ensure the Site meets the

requirements of the site preparation plan, but shall not be liable for any discrepancy between the site

preparation plan and the conditions of the Site prior to commencement of the Works. Notwithstanding

the foregoing, any request for an extension of time or to recover additional payment in respect of any

discrepancy between the site preparation plan and the condition of the Site prior to commencement of

the Works shall be determined according to the terms of Clause 12 as if such request were a proposal for

a Change thereunder.

T/2017/015 CoC ‐ Page 4

4 Delivery and Installation

4.1 The Service Provider shall deliver to the Site on the relevant Delivery Date the:

4.1.1 Software and Equipment in such quantities as specified in the Specification; and

4.1.2 Operating Manuals relating to the System, Software and Equipment in such quantities and in the language versions both as specified in the Specification

The Service Provider shall install the Software and Equipment at the Site in accordance with the relevant

timing and sequencing schedules set out in the Project Plan and the Specifications.

4.2 Subject to Clause 4.3, all packing cases, skids and other packing materials used for delivery of the Software

and Equipment to the Site must be removed by the Service Provider within seven (7) days of the date of

delivery of the Software and Equipment. The cost of such removal shall be borne by the Service Provider.

4.3 Clause 4.2 shall not apply to the extent that HKCMCL expressly designates a third party to carry out the

clearance of rubbish or refuse, and HKCMCL shall notify the Service Provider accordingly and shall

stipulate whether any payments are due from the Service Provider for the provision of such services.

4.4 The Service Provider shall after installation of the Software and Equipment, reinstate the Site to the

condition prevailing on the day immediately prior to which the installation commenced, subject to any

changes undertaken by the Service Provider and agreed by HKCMCL in relation to the installation.

4.5 The cost of delivery shall be borne by the Service Provider.

5 Title and Risk

5.1 The title to the Equipment and the product of the Works, free from any encumbrance, shall pass to

HKCMCL upon delivery to the Site.

5.2 The risk in any part of the System shall pass to HKCMCL when that part of the System is accepted by

HKCMCL in accordance with Clause 17.

5.3 If any Acceptance Tests in respect of the System have not been successfully completed by the relevant Key

Date, HKCMCL may by written notice to Service Provider at its sole option, without prejudice to its rights

under Clauses 13 and 25, take any risk in the System if it elects to accept the System pursuant to Clause

17.3.3.

5.4 The terms of this provision shall be without prejudice to any obligation on the part of Service Provider to

effect and maintain at his own expense any insurance in accordance with the terms of Clause 32.

6 Detailed Design

6.1 Service Provider shall prepare any relevant Detailed Design using the Specification and any other relevant

information in consultation with HKCMCL and shall complete and deliver the relevant Detailed Design to

T/2017/015 CoC ‐ Page 5

HKCMCL by the applicable date specified in the Project Plan. Service Provider shall, in developing any

Detailed Design in accordance with this Clause, provide to HKCMCL sufficient information to enable

HKCMCL to understand and identify how each relevant requirement in the Specification and any other

relevant information has been incorporated in such Detailed Design.

6.2 HKCMCL gives no warranty that the Specification and any other relevant information provided by HKCMCL

is exhaustive or sufficient or appropriate for the preparation of any Detailed Design.

6.3 At any time prior to or at the same time as presentation of any Detailed Design under Clause 6.1, Service

Provider may present HKCMCL with written details of any proposed revisions to the Specifications and/or

the Project Plan which Service Provider may deem optimal as a result of producing the Detailed Design.

Any such proposed revisions shall be determined according to the terms of Clause 12 as if such request

were a proposal for a Change thereunder.

6.4 HKCMCL shall approve or reject any Detailed Design and any revisions to the Specifications and / or the

Project Plan presented by Service Provider under Clauses 6.1 and 6.3, or respond with comments and/or

requests for further information or amendment within twenty‐one (21) days of receipt. Service Provider

shall provide any additional information reasonably requested, take account of all reasonable comments

and/or all requests for amendments received from HKCMCL and shall incorporate the same into revised

versions of the Detailed Design and deliver the revised version to HKCMCL within seven (7) days of those

comments and/or requests. HKCMCL shall then respond with comments and/or requests for further

information or amendment within seven (7) days of receipt of the revised version of the Detailed Design.

6.5 Prior to having recourse to the provisions of Clauses 40 and 41, Service Provider shall in good faith work

with HKCMCL to resolve any problems with any Detailed Design failing which, if the parties have not

agreed such Detailed Design by twenty‐eight (28) days after HKCMCL has responded with its final

comments, requests or amendments under Clause 6.4, and the failure to agree is due to:

6.5.1 the Detailed Design not meeting the requirements of the Specification as revised in accordance with Clause 6.4 or any other default by Service Provider, then HKCMCL may terminate this Contract on giving written notice to Service Provider in accordance with Clause 27.3; or

6.5.2 due to any other circumstances then:

(a) the parties shall work together to resolve any problems with the Detailed Design for a further period of twenty‐one (21) days or any other period agreed by the parties; and

(b) HKCMCL may terminate this Contract following the end of the period specified or other period if agreed in accordance with paragraph (i) above, on giving written notice to Service Provider in accordance with Clause 27.3; or

(c) HKCMCL may require Service Provider to continue to work on the Detailed Design, in which case any additional work shall be carried out on a time and materials basis at the rates specified in Clause 12 shall apply in respect of any resulting Change and (Clause 6.5 shall unless otherwise agreed, apply in respect of any subsequent failure to agree the Detailed Design.

6.6 Approval of the Detailed Design by HKCMCL shall be without prejudice to:

6.6.1 HKCMCL's right to reject the System or any part thereof in accordance with Clause 17; and

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6.6.2 HKCMCL’s right to instruct any Change under Clause 12.

6.7 Upon approval of any Detailed Design by HKCMCL, such Detailed Design shall become a part of the

Specification for the purposes of this Contract.

7 Intellectual Property

7.1 The Service Provider hereby agrees that all Intellectual Property Rights in the Project Intellectual Property

from the date hereof shall on creation or acquisition automatically vest in HKCMCL. Unless otherwise

required herein, Service Provider shall deliver two (2) hard copies and two (2) soft copies (in such

electronic format as HKCMCL may designate from time to time) of all Project Intellectual Property to

HKCMCL within five (5) days of its approval or acceptance by HKCMCL in accordance with the terms of this

Contract. HKCMCL shall use its reasonable endeavours to procure that HKCMCL shall grant Service

Provider a royalty free non‐exclusive licence to use the Project Intellectual Property during the Term to

the extent necessary and solely for the purposes of performing its obligations under this Contract.

7.2 Without prejudice to Service Provider’s obligation under Clause 24 to execute and deliver the Warranty

and Indemnity, Service Provider shall do all such things and sign all documents or instruments reasonably

necessary in the opinion of HKCMCL to enable HKCMCL to obtain, defend and enforce its rights in the

Project Intellectual Property. Without limiting the generality of the foregoing, Service Provider shall

ensure:

7.2.1 that all its employees and Sub‐Service Providers will be retained on the basis that Project Intellectual Property created by any of such parties shall be owned absolutely by HKCMCL; and

7.2.2 that its employees and shall procure that its Sub‐Service Providers do all acts and execute all documents requested by HKCMCL (including any formal assignments) to confirm the title of HKCMCL to the Project Intellectual Property created by any of such parties whether in connection with the registration of such title or otherwise.

7.3 The Service Provider hereby waives, or shall procure that the owner of any moral rights in the Project

Intellectual Property waives, all such moral rights as may arise therein.

7.4 Subject to the remaining provisions of this Clause, HKCMCL agrees that neither HKCMCL nor HKCMCL shall

acquire title to the Intellectual Property Rights in the Other Intellectual Property.

7.5 The Service Provider grants or shall procure that the beneficial owner thereof shall grant, to HKCMCL and

HKCMCL a royalty‐free, non‐exclusive, freely transferable, irrevocable and perpetual licence to use Other

Intellectual Property for all purposes relating to the Cyberport Project, including the design, construction,

reconstruction, practical completion, maintenance, reinstatement, extension, repair and operation of the

Cyberport Project.

7.6 Any restriction or limitations which apply to a licence granted under Clauses 7.1 or 7.5 (whether as a result

of the application of the licensor’s standard terms or otherwise) shall not affect Service Provider's

obligations in relation to the Project under this Contract.

7.7 HKCMCL shall be entitled to authorise any party to use Other Intellectual Property subject to and in

T/2017/015 CoC ‐ Page 7

accordance with the provisions of this Clause on behalf of HKCMCL in connection with HKCMCL' activities.

7.8 The Service Provider hereby indemnifies and agrees to procure that its Sub Service Providers will

indemnify and keep indemnified HKCMCL against all loss, liability, damages, costs, legal costs, professional

and other expenses of any nature whatsoever incurred or suffered by HKCMCL whether direct or

consequential (including any economic loss or other loss of profits, opportunity, business or goodwill)

arising out of any dispute or contractual, tortious or other claims or proceedings brought against HKCMCL

by any third party claiming relief by reason of the exercise of Intellectual Property Rights in the Project

Intellectual Property and Other Intellectual Property including any use of any material or rights embodied

in the Project Intellectual Property and Other Intellectual Property.

7.9 The Service Provider hereby irrevocably and by way of security appoints and shall procure that each of its

Sub‐Service Providers appoints HKCMCL to be its lawful attorney and in its name and on its behalf to do

and execute all acts and instruments as may be necessary for the purpose of implementing the provisions

of this Clause which Service Provider has failed to do. Service Provider or any of its Sub‐Service Providers

agrees to confirm and ratify all such acts and instruments lawfully and properly done in accordance with

the provisions of this Clause and shall procure that each of Sub‐Service Providers shall do the same.

7.10 Upon the expiration or termination of this Contract, Service Provider shall at its own expense promptly

deliver to HKCMCL all Project Intellectual Property and copies thereto then in Service Provider’s or its Sub‐

Service Providers’ custody, control or possession.

7.11 The provisions of this Clause shall survive the expiration or termination of this Contract.

8 Software

8.1 Without limiting the generality of Clause 7 above, the provisions of this Clause shall in addition apply to

Software.

8.2 Any Service Provider’s Software and Third Party Software not identified in Specification which Service

Provider wishes to supply may be introduced only with the prior consent of HKCMCL.

8.3 In respect of Service Provider’s Software that is not Commercially Available, Service Provider shall either

provide the Source Material related thereto to HKCMCL or enter into an arrangement with HKCMCL and

the Escrow Agent for the deposit of the Escrow Materials, in a secured location and in a medium to be

determined by HKCMCL. Such escrow arrangement shall include a procedure for the verification of the

relevant Escrow Materials by the Escrow Agent and a representative of HKCMCL. Service Provider

undertakes to HKCMCL that the Escrow Materials shall be kept fully up‐to‐date and will truly and

accurately reflect all Updates and Upgrades thereto, and for such purposes, Service Provider shall present

for verification and deposit with the Escrow Agent a copy of such Updates and Upgrades within seven (7)

days of their availability.

8.4 In respect of Third Party Software that is not Commercially Available, Service Provider shall procure that

the relevant third party licensor enters into an arrangement with HKCMCL and the Escrow Agent for the

deposit of the Escrow Materials, in a secured location and in a medium to be determined by HKCMCL.

Such escrow arrangement shall include a procedure for the verification of the relevant Escrow Materials

T/2017/015 CoC ‐ Page 8

by the Escrow Agent and a representative of HKCMCL. Service Provider shall procure that such third party

licensor undertakes to HKCMCL that Escrow Materials shall be kept fully up‐to‐date and will truly and

accurately reflect all Updates and Upgrades thereto, and for such purposes, the licensor shall present for

verification and deposit with the Escrow Agent a copy of such Updates and Upgrades within seven (7) days

of their availability.

8.5 Without prejudice to Clauses 8.4 and 8.5, Service Provider shall give HKCMCL written notice of any plans

to withdraw any Service Provider’s Software or Third Party Software from marketing. Subject to Clause 12,

Service Provider shall six (6) months prior to any withdrawal of technical support for such withdrawn

Software:

8.5.1 work with HKCMCL to evaluate replacement products and assist HKCMCL in the migration from the withdrawn Software to replacement Software; and

8.5.2 where such replacement products do not exist, assist HKCMCL in investigating an alternative solution and deliver and implement such solution, provided that for the purposes of Clause 12 it is agreed that, while the Contract Sum may as a result be reduced, no additional payments shall be due.


9 Project Plan and Completion

9.1 The Service Provider shall perform its obligations under this Contract strictly in accordance with the timing

and sequencing specified in the Project Plan. The Project Plan shall set out the timetable in which

Service Provider shall deliver the Equipment and Software, and carry out the Works and the Acceptance

Tests, including the timetable for the design, build, installation, testing, handover, maintenance and

support of the System, training staff and all Key Dates thereto.

9.2 The Service Provider shall, in accordance with the provisions of this Contract, execute the Project with

due diligence and expedition and shall ensure that the Project and any part thereof are completed by the

relevant Key Dates. Service Provider shall commence the Project on the Effective Date and shall

continuously proceed with and execute the same and all other parts of the Project in accordance with the

requirements of this Contract. Service Provider shall not, and shall procure that each of its Sub‐Service

Providers shall not, do anything to adversely affect the timely development of the Project or any part

thereof.

9.3 Upon the successful completion of the final Acceptance Test scheduled, HKCMCL shall issue the

Completion Certificate to Service Provider. The Completion Certificate shall certify that the Project is

complete and in accordance with the requirements of this Contract. The issue of the Completion

Certificate shall not amount to, or be deemed to be, conclusive evidence that the quality of materials or

the standard of workmanship used by Service Provider in the execution of the Project are in accordance

with this Contract.

10 Project Management

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10.1 The Service Provider shall appoint a Service Provider Project Manager who shall be responsible on behalf

of Service Provider for the management and co‐ordination of all matters relating to the Project and shall

appoint a Service Provider Project Team. HKCMCL shall appoint a Project Manager to be responsible for

the management and co‐ordination of HKCMCL’s responsibilities under the Contract and to liaise with

Service Provider Project Manager throughout the Project. All invoices, communications, documentation

and materials relating to the Project shall be sent to Service Provider Project Manager or the Project

Manager at the address for notices set out in Clause 45 or as otherwise agreed between the parties.

10.2 The Service Provider shall implement, and maintain throughout the Term (both prior to and after the

Acceptance Date) performance, management, monitoring and reporting procedures as set out in the

Specification to ensure that the Project is carried out in accordance with this Contract and in a manner

designed to anticipate and avoid any problems.

10.3 The parties shall, in accordance with the Project Management Procedures, review the responsibilities of

Service Provider Project Team and the individuals included in Service Provider Project Team.

10.4 The Service Provider shall, unless such a change is due to resignation, sickness or other similar cause

beyond the reasonable control of Service Provider, consult with the Project Manager if it wishes to make

any changes to Service Provider Project Team and the Project Manager shall not, without prejudice to the

remaining provisions of this Clause, withhold its consent to any changes to Service Provider Project Team

proposed by Service Provider as a result of any such review or consultation unless the Project Manager

reasonably believes that such a change will have a detrimental effect on the Project.

10.5 Each party shall comply with the Project Management Procedures. Approvals given by HKCMCL under

the Project Management Procedures shall not, however, prejudice any other rights or remedies HKCMCL

may have in respect of any failure by Service Provider to perform its obligations under this Contract.

10.6 Without prejudice to any other provision of this Contract, the Project Manager may issue to Service

Provider:

10.6.1 any instruction which, in his opinion, is necessary for Service Provider to comply with its obligations under this Contract; and

10.6.2 any instruction which, in his opinion, is desirable in connection with the completion of any part of the Project in accordance with this Contract and which is not issued as a result of any breach or default on the part of Service Provider, including changing any sequence or timing of the Project, or any part thereof;

10.6.3 and Service Provider shall comply with all such instructions issued by the Project Manager without any right or entitlement on the part of Service Provider to receive any payment from HKCMCL in respect thereof, whether by way of damages or otherwise howsoever, or any adjustments in the Contract Sum.

10.7 Where the Service Provider is required by this Contract to submit any drawings or documents to the

Project Manager for review, consent or approval, he shall do so within such period as may be stipulated

in this Contract or, in the absence of any stipulation, in time to enable the Project Manager to properly

examine the drawings or documents without delaying the progress of the Project.

10.8 Without prejudice to any other provision of this Contract, Service Provider Project Manager shall on

reasonable notice from the Project Manager, attend any meeting convened by the Project Manager in

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respect of the Project.

10.9 In addition to its obligations under the Project Management Procedures, Service Provider shall:

10.9.1 ensure Service Provider Project Manager or his deputy are the persons responsible for and have authority in respect of the implementation of the Project on behalf of Service Provider and that they perform the responsibilities referred to in the Project Management Procedures;

10.9.2 obtain the prior written consent of the Project Manager before the appointment or replacement of Service Provider Project Manager or his deputy or any other holders of key positions in Service Provider Project Team (and Service Provider acknowledges and agrees that the Project Manager shall consult and obtain the prior approval of HKCMCL in respect of each such appointment or replacement), and ensure that any replacements for any member of Service Provider Project Team shall have undergone, prior to assuming duties in connection with the Project, a suitable period of familiarisation with the Project. HKCMCL acknowledges that it may not be possible for an individual to undergo a suitable period of familiarisation in accordance with this Clause 10.9.2 where that person’s appointment is as a result of resignation, sickness or other similar cause beyond the reasonable control of Service Provider. Service Provider shall nevertheless use reasonable endeavours to minimise any impact to the Project; and

10.9.3 give not less than seven (7) days’ notice to a designated representative of HKCMCL of any progress meeting held in relation to the Project and inform such representative of his right to attend the meeting.

10.10 Notwithstanding any other provision of this Contract, no act or omission by the Project Manager or any

delegate in exercising any of its duties or powers under this Contract, including, without limitation, any

review, endorsement, agreement or approval or the giving of any permission or consent, shall relieve

Service Provider in whole or in part from any obligation or liability under or arising out of this Contract or

give rise to any waiver or estoppel in relation to any of its obligations or liabilities under or arising out of

this Contract.

10.11 The Service Provider shall keep HKCMCL up to date on any developments in the audio visual, media and

information technology industries which may be relevant to the Project.

10.12 The Service Provider shall use its expertise to investigate new technologies which would have the effect

of introducing new enhanced services which are required or desired by tenants and residents of Cyberport,

improving the quality of services delivered to the same, increasing revenues from the use and exploitation

of the System, reducing the cost of the Project and the cost of operating the System and, where

appropriate, shall propose Changes in accordance with Clause 12.

11 Project Personnel

11.1 The Service Provider shall throughout the Term:

11.1.1 take reasonable steps to ensure that personnel engaged in the Project are appropriately experienced, honest, qualified, skilled and trained in the work which they are to perform and that they perform that work with reasonable skill and care;

11.1.2 implement any schemes of training and instruction from time to time for all Service Provider’s or Sub‐Service Provider’s staff engaged on all matters concerned with the Project which are

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necessary to ensure that Service Provider complies with its obligations under this Contract;

11.1.3 ensure that personnel engaged in the Project comply with HKCMCL’s health and safety policy, its computer security policy and any other policy (in each case where such policies are notified to Service Provider) and reasonable direction of the Project Manager in relation to the security of HKCMCL’s personnel, Direct Service Provider’s personnel, users, computer and communication systems, premises and the Site;

11.1.4 either take reasonable steps to ensure that its staff display any form of identification provided by HKCMCL within the Site, or provide its staff with a form of identification acceptable to HKCMCL, acting reasonably, and take reasonable steps to ensure that staff display that identification at all times when at the Site;

11.1.5 take reasonable steps to ensure that, while any of its agents or Sub‐Service Providers are on the Site, they will conform to HKCMCL's normal codes of staff behaviour and security practice as disclosed to Service Provider and (where applicable) to HKCMCL's standard conditions of employment as disclosed to Service Provider by HKCMCL; and

11.1.6 supply written details of personnel whom Service Provider engages, employs or appoints in connection with this Contract and, in respect of regular members of Service Provider Project Team, written details of their qualifications and experience and, if so requested by HKCMCL, provide a list of the names and work addresses of all persons who may require admission, in connection with the performance of this Contract, to the Site and any premises occupied by or on behalf of HKCMCL, specifying the capacities in which they are concerned with this Contract and giving such other particulars as HKCMCL may reasonably require.

11.2 HKCMCL may, to the extent reasonably necessary to preserve the standards and reputation of HKCMCL

and following consultation with Service Provider sufficient to (except in case of gross misconduct) allow

Service Provider a reasonable period of time to remedy the problem or obtain and brief replacement

personnel, instruct Service Provider to remove any personnel engaged by Service Provider on the Project

(including personnel in Service Provider Project Team) and Service Provider shall promptly comply.

Service Provider shall not be excused performance of its obligations under this Contract as a result of

compliance with any such instruction.

12 Change Procedure

12.1 The Project Manager may instruct Service Provider to carry out any Changes which are, in his opinion,

necessary or desirable in connection with the Project. Any Change shall be made only in accordance

with the provisions of this Clause. Service Provider shall not execute any Change without the prior issue

of an instruction by the Project Manager under Clauses 12.2 or 12.3 and shall continue to perform this

Contract as if any request, recommendation or proposal for a Change had not been made.

12.2 The Service Provider may propose to the Project Manager any Change which Service Provider considers

necessary or desirable in connection with the Project. Service Provider’s proposal shall describe the

proposed Change in detail and include details of the financial, timing and quality effects of the proposed

Change, including any adjustments to the Contract Sum. Upon consideration of such proposal, the

Project Manager may in his sole discretion instruct the Change pursuant to this Clause 12.2 and the Service

Provider shall be required to promptly commence the Change.

12.3 The Project Manager may request the Service Provider to submit an estimate providing details of the

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financial, timing and quality effects of any Change requested by the Project Manager in respect of the

Project, including any adjustments to the Contract Sum. Service Provider shall submit to the Project

Manager such estimate within seven (7) days of receipt of the request. Upon consideration of such

estimate, the Project Manager may in his sole discretion instruct the Change pursuant to this Clause 12.3

and Service Provider shall be required to promptly commence the Change. Subject to Clause 12.5 in the

event that the Project Manager does not accept Service Provider’s estimate proposed under this Clause

12.3, he may nevertheless instruct Service Provider to commence the Change and Service Provider shall

promptly carry out such Change.

12.4 The instruction of any Change by the Project Manager pursuant to this Clause shall not vitiate or invalidate

this Contract, the terms of which shall continue to apply to the Project as varied.

12.5 Where Service Provider considers that the Contract Sum should be adjusted by reason of any instruction

issued under Clauses 12.2 or 12.3, and where an adjustment to the Contract Sum has not previously been

agreed with the Project Manager prior to the issue of that instruction, then Service Provider shall notify

the Project Manager of the same within five (5) days of receipt of the instruction. Service Provider shall

also provide detailed particulars of the adjustment which it considers should be made to the Contract

Sum within seven (7) days of receipt of the instruction. As soon as practicable after the receipt of

particulars provided by Service Provider which it considers sufficient, the Project Manager shall, acting

reasonably, determine the adjustment to the Contract Sum, in accordance with Clause 20 and shall notify

Service Provider of such determination. The adjustment to the Contract Sum determined by the Project

Manager under this Clause 12.5 or agreed with the Project Manager, as the case may be, by reason of any

instruction issued under Clauses 12.2 or 12.3 shall be Service Provider’s sole remedy (save for any

extensions of time granted pursuant to Clause 12.8 in respect of the same) and Service Provider shall not

be entitled to any payment from HKCMCL, whether by way of damages or otherwise howsoever, by reason

of the issuance of any such instruction.

12.6 If the Service Provider disputes any determination of the Project Manager made pursuant to Clause 12.5,

then a dispute shall be deemed to have arisen and the provisions of Clauses 40 and 41 shall apply. For the

avoidance of doubt and without limiting the generality of Clauses 40 and 41, notwithstanding any such

dispute Service Provider shall promptly carry out the relevant Change.

12.7 The execution of any Change shall not be delayed during the period that any dispute is dealt with in

accordance with Clause 12.6.

12.8 In the event that the Service Provider believes that the instruction of any Change by the Project Manager

pursuant to this Clause entitles Service Provider to receive an extension of time for the completion of any

Key Milestone, Service Provider shall comply with Clause 13 and the Project Manager shall, acting

reasonably, assess and decide whether Service Provider may be entitled to an extension of any relevant

Key Dates, subject to and in accordance with the provisions of Clause 13. The Project Manager shall also

adjust the Contract Sum, to reflect the adjustment agreed or determined pursuant to this Clause, by

reason of the instruction of any Change by the Project Manager.

13 Notification of Delay and Extension

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13.1 The Service Provider shall give notice to the Project Manager as soon as Service Provider can reasonably

foresee an event occurring which is liable to cause delay or impediment to the completion of any Key

Milestone by the relevant Key Date. Such a notice shall in any event be given within seven (7) days after

commencement of such an event and shall state the likelihood and probable extent of the delay or

impediment and specify whether Service Provider considers it is, or may become entitled to, an extension

of time in respect of the effects of such event. The giving of such a notice by Service Provider to the

Project Manager shall not of itself automatically entitle Service Provider to an extension of time to any of

the Key Dates under Clauses 13.3 or 13.4.

13.2 The Service Provider shall use and continue to use its best endeavours to avoid or mitigate the effects of

such event on the completion of any Key Milestone, and shall as soon as practicable but in any event

within seven (7) days of notification pursuant to Clause 13.1, submit by further notice to the Project

Manager:

13.2.1 full and detailed particulars of the cause and actual extent of the delay or impediment (including all such particulars as shall have been supplied by any Sub‐Service Providers of Service Provider); or

13.2.2 where an event has a continuing effect or where Service Provider is unable to decide whether the effect of an event will actually cause delay to the completion of any Key Milestone by the relevant Key Date, such that it is not practicable for Service Provider to submit full and detailed particulars pursuant to Clause 13.2.1 above, a statement to that effect with reasons together with interim particulars (including details of the likely consequences of the event on the progress of the Project and an estimate of the likelihood or likely extent of the delay), and Service Provider shall thereafter submit to the Project Manager at intervals of not more than fourteen (14) days (or such other longer interval as the Project Manager shall direct), further interim particulars until the actual delay caused (if any) is ascertainable, whereupon Service Provider shall as soon as practicable but in any event within fourteen (14) days submit to the Project Manager full and detailed particulars of the cause and actual extent of the delay; and

13.2.3 details of the documents that will be maintained to support such a claim; and

13.2.4 details of the measures which Service Provider has adopted and/or proposes to adopt to avoid or mitigate the effects of such event upon the timely completion of the Key Milestone by the relevant Key Date;

13.2.5 and thereafter, Service Provider shall submit from time to time any further information relating to the delay or impediment to the Project Manager as soon as practicable after receipt of the same by Service Provider. The obligations of Service Provider in this Clause 13.2 are conditions precedent to its right to seek or obtain any extension of time pursuant to Clause 13.3.

13.3 Subject to Clause 2.2, if the event notified by Service Provider pursuant to Clause 13.1 is due to:

13.3.1 Force Majeure;

13.3.2 loss or damage occasioned by occurrences which are insured pursuant to the Contract, to the extent that the same is not due or contributed to directly or indirectly by any neglect, default, omission or breach of contract by Service Provider;

13.3.3 Project Manager’s instructions issued under Clause 12.1;

13.3.4 any act of prevention or breach of Contract by HKCMCL, his servants, agents and consultants;

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13.3.5 delay caused by or on the part of Direct Service Provider, other than as a result of the failure of Service Provider to carry out its co‐ordination responsibilities as specified in the Contract; or

13.3.6 delay caused by or on the part of Utility Undertakers;

then the Project Manager shall assess a fair and reasonable extension of the relevant Key Date relating to

the Key Milestone, provided that all such extensions of the relevant Key Date relating to the Key Milestone

under this Clause 13.3 shall not in aggregate exceed a period of sixty (60) days.

13.4 Except as provided in Clause 13.3, the Service Provider shall not be entitled to claim an extension of any

of the relevant Key Date for any other events whether or not notified by Service Provider pursuant to

Clause 13.1, including a shortage of equipment, plant, materials or labour or any instruction issued by the

Project Manager under Clause 12.

13.5 If, pursuant to Clause 13.3, the Project Manager considers that Service Provider may fairly be entitled to

receive an extension of any of the relevant Key Dates, the Project Manager shall, within fourteen (14) days,

or such further time as may be reasonable in the circumstances, upon receipt of full and detailed

particulars of the cause and actual effect of any delaying event, assess, decide, grant and notify Service

Provider of such an extension. The Project Manager in assessing and deciding any extension shall take

into account all the circumstances known to him at that time.

13.6 If the Project Manager decides that Service Provider is not entitled to an extension, the Project Manager

shall as soon as reasonably practicable, notify Service Provider accordingly.

13.7 The Service Provider shall not be entitled to an extension of time by reason of any delay unless such delay

actually affects the completion of a Key Milestone by the relevant Key Date.

13.8 Any extension to a Key Date shall not of itself entitle Service Provider to an extension to any other Key

Date.

13.9 As soon as practicable after the Project Manager has granted any extension of time to Service Provider in

respect of any Key Date, Service Provider shall revise the Project Plan to reflect such extension and shall

submit the revised Project Plan to the Project Manager for his consent.

13.10 Except as otherwise provided for in this Contract, any extension of time granted by the Project Manager

to Service Provider shall be deemed to be in full compensation and satisfaction for any loss or expense

sustained or sustainable by Service Provider in respect of any matter or thing in connection with such

extension and Service Provider shall not be entitled to receive any payment from HKCMCL, whether by

way of damages or otherwise howsoever by reason thereof or any adjustment in the Contract Sum.

Every extension shall exonerate Service Provider from any claim or demand on the part of HKCMCL for

the delay during the period of such an extension, but not for any delay which continues beyond such

period.

14 Quality Assurance and Inspection

14.1 In order to ensure that the System conforms to the requirements of this Contract, Service Provider shall

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establish, implement and maintain at all times during the execution of the Works a documented quality

system which complies with the requirements of ISO‐9001‐2000 as issued by the International

Organisation for Standardisation, or any later version thereof, as required by the Project Manager.

14.2 The quality system documents and quality plans forming part of the documented quality system shall

embrace all activities of Service Provider and all Sub‐Service Providers of any tier.

14.3 The Service Provider shall plan, perform and record all quality control activities to ensure that all work is

performed in accordance with the requirements of this Contract and of the quality system documents and

quality plans.

14.4 The Service Provider shall prepare and submit to the Project Manager for his consent, within twenty‐eight

(28) days of the date of this Contract, a quality plan, in the form and with the details and contents as

specified by the Project Manager and otherwise in accordance with this Contract, which Service Provider

proposes to adopt in the execution of the Works.

14.5 Without prejudice to Clause 17, HKCMCL reserves the right to inspect and carry out, and to authorise third

parties to inspect and carry out on its behalf, any necessary investigations, tests and measurements on

the Equipment, Software and Works at any stage in the manufacture of the Equipment and Software and

/ or the execution of the Works and to reject all or any part of the Equipment, Software and Works not in

accordance with the Specifications.

14.6 For the purposes of inspection Service Provider shall accord to HKCMCL, and any third party authorised

by HKCMCL, right of access to all parts of Service Provider’s premises concerned with the manufacture of

the Equipment and Software and shall provide HKCMCL and such third party with such inspection facilities,

testing apparatus and services as may reasonably be required.

14.7 Without prejudice to Clause 14.6, the Service Provider shall, and shall procure that, before any Equipment

is shipped, a complete functional Factory Acceptance Test Procedure, designed to demonstrate that the

Equipment will meet the Specification, shall be carried out at Service Provider’s cost.

14.8 The Service Provider shall if requested by HKCMCL, not less than twenty‐one (21) days before any such

Factory Acceptance Test Procedures are due to commence, submit for the approval of HKCMCL the

relevant Factory Acceptance Test Procedure defining the tests to be conducted.

14.9 HKCMCL reserves the right for himself, and/or his nominee, to be present at and participate in any tests

carried out on all or any part of the Equipment and Service Provider shall confirm to HKCMCL by giving

fourteen (14) days’ notice in writing of the commencement of such tests so that HKCMCL can either make

the necessary arrangements for his representative or nominee to be present, or HKCMCL advise Service

Provider that his representative or nominee will not attend.

14.10 Service Provider shall have completed preliminary tests prior to the arrival of HKCMCL’s representative or

nominee.

14.11 On the successful conclusion of the Factory Acceptance Test Procedure to the satisfaction of HKCMCL, and

before shipment from the factory, a Factory Test Completion Certificate containing 2 copies of the test

results shall be signed by both parties. If pursuant to Clause 14.9, HKCMCL advises that his

representative or nominee will not attend, Service Provider shall endorse the Factory Test Completion

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Certificate accordingly and shall deliver the same to the HKCMCL forthwith.

14.12 Should HKCMCL’s representative or nominee attend at the appointed time for inspection or testing, and

the inspection or tests be delayed through reasons within Service Provider’s control, or should the

Equipment not reach the required objective of the tests, then the additional costs incurred by HKCMCL by

reason of the delay or of subsequent further visits to attend the deferred or repeated inspection or tests

shall be chargeable to Service Provider.

14.13 Without prejudice to Clause 14.6, Service Provider shall provide, and shall procure the provision of,

monthly progress reports in respect of the development of any Specially Written Software, beginning on

the date thirty (30) days after the Effective Date. The monthly progress reports shall contain such details

in relation to the design and development of the Software as are notified by HKCMCL to Service Provider

from time to time.

14.14 The Service Provider shall procure that HKCMCL and any third party authorised by HKCMCL shall have the

same inspection rights in respect of any Sub‐Service Providers as HKCMCL has in respect of the Service

Provider.

15 Co‐ordination

15.1 The Service Provider shall be responsible for co‐ordinating the design and execution of the Works with

the design and construction works and other activities undertaken by all Direct Service Providers, Utility

Undertakers and Relevant Authorities. Without prejudice to the foregoing, Service Provider shall consult,

liaise and co‐operate with all Direct Service Providers, Utility Undertakers and Relevant Authorities to

ensure that the design of the Works is consistent, compatible, integrated and co‐ordinated with the design

of the works being undertaken by all Direct Service Providers, Utility Undertakers and Relevant Authorities,

and that in the execution of the Works, Service Provider co‐ordinates its activities with the activities of

Direct Service Providers, Utility Undertakers and Relevant Authorities.

15.2 Without prejudice to Clause 15.1, when the System or any part thereof is Ready for Service, Service

Provider shall:

15.2.1 notify the HKCMCL forthwith;

15.2.2 hand over possession of the System or such part thereof that is Ready For Service to HKCMCL; and

15.2.3 co‐ordinate and co‐operate with, enable and facilitate the operation of the System or such part thereof by HKCMCL or its nominee.

16 Inspection and Monitoring

16.1 The Service Provider shall provide and, where relevant, shall procure access to and reasonable facilities at

all places on or off the Site where the Works, or any part thereof, are being executed, to enable the Project

Manager and others authorised by him to watch, monitor and inspect the same and to exercise and

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perform the powers and duties of the Project Manager, including, without limitation, checking or

enforcing the performance by Service Provider of any of its obligations under this Contract, and

performing such other functions deemed appropriate by the Project Manager.

17 Acceptance Testing

17.1 Any amendments to the Acceptance Test Plan or the Acceptance Tests from time to time, shall be subject

to the approval of HKCMCL, taking account of the Specifications and any Changes thereto. HKCMCL and

Service Provider shall together perform testing of the System or any part thereof that is Ready for Service

in accordance with the Acceptance Test Plan, including conducting the Acceptance Tests on the applicable

Acceptance Test Date specified therein all at Service Provider’s cost.

17.2 The Acceptance Tests shall only be recorded as successfully completed where the System or any part

thereof, has met all the requisite criteria in the Specifications and the Acceptance Tests. The successful

completion of any Acceptance Test and issue of the relevant Acceptance Certificate shall not relieve

Service Provider of its obligation to remedy any problems identified in any other Acceptance Test even

when this requires remedial acts in respect of Equipment, Software and/or Works which have previously

successfully passed an Acceptance Test.

17.3 Subject to Clause 13 and at all times without prejudice to the rights of HKCMCL under Clause 25 and

Clause 27.3.4 if any Acceptance Test in respect of the System, or any part thereof, has not been recorded

as successful pursuant to Clause 17.2 by the relevant Acceptance Test Date specified in the Acceptance

Test Plan for the successful completion of Acceptance Tests:

17.3.1 such Acceptance Test Date may be extended for a fair and reasonable period specified by HKCMCL in consultation with Service Provider during which Service Provider shall continue to investigate the reasons for and correct the faults which caused the Acceptance Test to be recorded as unsuccessful and the Acceptance Test (including not only the failed Acceptance Test but any other Acceptance Test where the results might be affected) shall be re‐performed. All costs which HKCMCL may incur as a result of the carrying out of such tests shall be reimbursed by Service Provider failing which HKCMCL shall be entitled to make the appropriate deductions in accordance with Clause 18.2; and

17.3.2 if the System or any part thereof shall fail such further Acceptance Test as set out in Clause 17.3.1 then HKCMCL shall be entitled at its sole option:

(a) to require the steps in Clause 17.3.1 to be repeated, subject to HKCMCL consulting with Service Provider regarding the viability of re‐performing the Acceptance Test and taking into account the extent of the further work required by Service Provider before it could re‐perform the Acceptance Test and the likelihood of any delay; or

(b) to require Service Provider to replace any Equipment or Software which has failed the Acceptance Test with new Equipment or Software; or

(c) to terminate this Contract; or

(d) to proceed under Clause 17.3.3 below; or

17.3.3 accept the System, or any part of it, in its existing state at the stage reached in the Acceptance Test whereupon the Acceptance Test shall be deemed to be successfully completed, subject

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to agreement between the parties within fourteen (14) days as to:

(a) a reduction in the Contract Sum (such reduction to be such amount as, taking into account the circumstances, is reasonable); and

(b) agreement of any other reasonable Changes.

17.4 Upon the successful completion of the relevant Acceptance Test specified in the Acceptance Test Plan,

HKCMCL shall issue the Acceptance Certificate in relation to that Acceptance Test. Notwithstanding any

provision herein, use of the System or any part thereof by HKCMCL, its agents, licensees or any third party

authorised by it shall not be deemed to constitute Acceptance.

17.5 Upon the issue of the Acceptance Certificate, Service Provider shall be liable to rectify defects in the

System and remedy all breaches of warranties given herein for a period of 12 months or such longer period

as HKCMCL deems appropriate from the date of issue of the Acceptance Certificate. In respect of any

Equipment or Software which is corrected, repaired or replaced pursuant to this Clause 17.5, the liability

to rectify defects shall begin anew upon HKCMCL’s Acceptance of the correction, repair or replacement.

17.6 In respect of the System or any part thereof which is Ready for Service and / or Accepted, and which is in

use or operated by HKCMCL or its nominee, Service Provider shall in accordance with the Acceptance Test

Plan carry out any Acceptance Tests in a manner designed to minimise any interference to the use and

operation of the System or any part thereof by HKCMCL or its nominee, including that part of the System

upon which the Acceptance Tests are performed.

18 Contract Price and Payment

18.1 HKCMCL shall pay Service Provider the Contract Sum in accordance with this Clause. All unit prices and

fees in respect of any Equipment, Software or Works shall be as specified in the Specification, from which

the relevant Contract Sum may be calculated. All prices and fees in respect of any Equipment, Software

or Works not otherwise indicated in the Specification shall be notified by Service Provider to HKCMCL

from time to time with all details reasonably necessary for HKCMCL to assess the relevant Contract Sum,

including currency, applicability periods and any discounts. All payments under this Contract shall be made,

in the following currency: Hong Kong Dollars.

18.2 Payments for the Contract Sum will be settled in the manner described in Schedule A of these Conditions

of Contract. Payments will be paid upon the Service Provider's presentation to HKCMCL of invoices and

on the basis that the Works are provided as contemplated under this Contract.

18.3 The Contract Sum shall cover all the costs and expenses for the performance of the Works including but

not limited to the development and execution of the Works whether they are directly or indirectly

incurred by the Service Provider.

18.4 If, for any reason, any job undertaken by the Service Provider pursuant to this Contract is cancelled or

delayed, HKCMCL and the Service Provider shall discuss in good faith the most commercially beneficial

and cost effective resolution of the matter. In any circumstances, HKCMCL's final decision on the matter

shall be regarded as conclusive.

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18.5 Each payment required pursuant to the Contract shall be made within 30 days of presentation of invoice.

19 Maintenance and Replacement

19.1 The Service Provider shall diligently operate and maintain or procure the operation and maintenance of

the Equipment and Software and all working spaces allocated to it in a safe efficient and business‐like

manner and in accordance with best industry practice.

19.2 If any Equipment or Software is damaged, lost or otherwise rendered unserviceable whilst on Site prior

to its Acceptance, Service Provider shall at its sole cost forthwith arrange for its replacement and delivery

to the Site in order to achieve the relevant Key Date.

19.3 If requested by HKCMCL, Service Provider shall provide maintenance services in respect of the System on

terms to be agreed between the parties.

20 Improvement and Upgrades

20.1 Subject the provisions of this Clause, Upgrades to any part of the Equipment or Software (other than the

Specially Written Software), shall be implemented as Changes under Clause 12.

20.2 The Service Provider shall provide Upgrades to Service Provider’s Software as a Change during the Term,

provided such Upgrades shall be made available to HKCMCL at no extra charge and without any

adjustment to the relevant Contract Sum.

21 Maintenance and Supply of Records and Operating Manuals

21.1 The Service Provider shall maintain copies of all documents in connection with and arising out of this

Contract and a complete record of all transactions entered into by Service Provider and any third party in

connection with the execution of the Project. Such documents shall be maintained by Service Provider

throughout the Term.

21.2 Without prejudice to Clause 21.1 Service Provider shall supply to the Project Manager within three (3)

days of receipt of any request to supply, copies of any plans, drawings, documents or information

reasonably required by HKCMCL in connection with this Contract including, without limitation, in respect

of any claim for an adjustment in the Contract Sum arising out of any Change and copies of any Sub‐

contracts and any additions or modifications thereto.

21.3 The Service Provider shall develop and/or obtain in respect of the System and each item of Equipment

and Software an Operating Manual which will enable HKCMCL or a third party to operate, maintain and

repair the System and each item of Equipment and Software.

22 Training

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22.1 The Service Provider shall provide sufficient training, training materials and support to HKCMCL to enable

HKCMCL and any nominee to use the System, and shall train HKCMCL's and its nominee’s training

instructors at no additional charge to HKCMCL, in accordance with the requirements set out in the

Specification.

22.2 All training and support shall be bi‐lingual in English and Chinese language, and all training materials shall

be in both English and Chinese language versions, at no additional charge to HKCMCL.

22.3 In addition to the specific training programs otherwise provided for herein, HKCMCL shall have the right

to post its personnel and its designated representatives to all offices of Service Provider in order to

observe and make inquiries concerning the Project, and such persons may attend all scheduled meetings

relating to performance of the Project and may be invited, in the discretion of Service Provider, to all other

meetings of Service Provider's personnel. Service Provider shall provide reasonable office space (including

desks and chairs) for this purpose at such offices. Such representative shall conduct themselves in a

manner which does not interfere with or delay the performance of the Project.

23 Taxes

23.1 The Service Provider shall operate as a single legal entity in accordance with applicable laws in Hong Kong

and generally acceptable accounting principles in Hong Kong, and Service Provider shall therefore account

for its own Tax liabilities. Subject to the provisions of this Contract, any Tax incurred by Service Provider

(including, without limitation, profits Tax) shall be paid by Service Provider when due from its own

resources.

23.2 Subject to the provisions of this Contract, HKCMCL shall be responsible for payment of its own Taxes,

including all profits Tax, if any, in relation to the contractual and any other payments that it receives under

this Contract.

23.3 The Service Provider shall be responsible for and shall pay all fees duties taxes or charges in relation to

any export or import licence for the exportation or importation of any Equipment and Software.

24 Guarantee

24.1 Not used.

25 Liquidated Damages

25.1 Subject to any relevant extensions of time, Service Provider shall ensure that all Key Milestones (as defined

in Schedule A) are completed on or before the relevant Key Dates (as defined in Schedule A) in accordance

with the terms of this Contract.

25.2 Subject to any relevant extensions of time, if Service Provider shall fail to complete any Key Milestone on

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or before the relevant Key Date then Service Provider shall pay to HKCMCL as and by way of liquidated

damages for any loss or damages sustained by HKCMCL resulting from delay during the period from the

Key Date to the date on which Service Provider completes the Key Milestone the relevant sums using the

rates specified in respect of each Key Milestone. HKCMCL may deduct such sum or sums from any

monies due, or to become due, to Service Provider under this Contract. Provided that if any part of the

relevant Key Milestone shall be completed pursuant to Clause 17, the rate or rates stated in the said

Schedule in respect of the whole of the Works comprised in such Key Milestone shall be reduced by the

proportion which the value of such part completed bears to the value of the whole of the Works

comprised in such Key Milestone. Subject to the provisions of Clause 25.5 below, the payment of such

sums shall be in full satisfaction of Service Provider’s liability for such delay.

25.3 The payment of liquidated damages shall not relieve Service Provider from its obligation to complete the

Key Milestone or from any other liability or obligations under this Contract.

25.4 If subsequent to the relevant Key Date for any Key Milestone, the progress of the Works comprised in such

Key Milestone is further delayed by the occurrence of any of the causes set out in Clause 13.3, but to the

extent only that the delays due to the causes set out in Clause 13.3.1, 13.3.2, or 13.3.6 arise as a result of

the act, omission or neglect of HKCMCL, his servant or agents, Service Provider shall not be entitled to

any extension of time for completion of Works, but, subject to compliance by Service Provider with Clause

13.2, HKCMCL shall so soon as he is reasonably able to estimate the length of that part of the overall delay

to completion of the Works due to the occurrence of the said cause, certify the length of the said part of

delay. Upon the issue of the said certificate, Service Provider shall be relieved of the obligation to pay

or allow liquidated damages in relation to the said part of delay so certified. HKCMCL shall repay to

Service Provider any liquidated damages already paid or allowed in respect of the said part of delay. For

the avoidance of doubt and subject to the foregoing, no cause of delay arising after the Key Date for any

Key Milestone (as extended or adjusted as aforesaid) thereof shall entitle Service Provider to any

extension of time, set time at large or (save as set out in this sub‐clause) prejudice or invalidate HKCMCL's

right to the payment or deduction of liquidated damages.

25.5 If the Service Provider shall fail to complete any Key Milestone by the relevant Key Date then

notwithstanding anything else contained in this Contract HKCMCL shall be entitled to terminate this

Contract in accordance with Clause 27.3 and to recover from the Service Provider the amount of all

damages and loss suffered by HKCMCL resulting from such failure.

26 Confidentiality

26.1 Each party shall ensure that:

26.1.1 any person employed or engaged by it shall use Confidential Information only for the purposes of this Contract;

26.1.2 any person employed or engaged by it shall not disclose any Confidential Information to any third party without the prior written consent of the other party;

26.1.3 all reasonable precautions are taken to ensure that all Confidential Information is treated as confidential and not disclosed (save as expressly permitted above) or used other than strictly for the purposes of this Contract by its employees or Sub Service Providers; and

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26.1.4 neither party nor any person engaged by them shall use Confidential Information for the solicitation of business from the other.

26.2 The provisions of Clause 26.1 shall not apply to any information which:

26.2.1 is or becomes public knowledge other than by breach of this Clause;

26.2.2 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;

26.2.3 is required to be disclosed by any law (including any order of a court of competent jurisdiction) or the rules of any stock exchange or governmental or other regulatory authority, whether or not having the force of law, provided that such disclosing party shall give as much advance notice as possible of its intention so to disclose to the other party to this Contract so that the other party may seek an appropriate protective order or waiver of compliance with the requirement to disclose;

26.2.4 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

26.2.5 is independently developed without access to the Confidential Information; or

26.2.6 is reasonably required by HKCMCL or the Lenders from HKCMCL in connection with the Cyberport Project, provided that HKCMCL shall have notified HKCMCL or the Lenders the same is confidential.

26.3 Nothing in this Clause shall be deemed or construed to prevent either party from disclosing any

Confidential Information to Sub‐Service Providers or other person it engages for the Cyberport Project

provided that the party disclosing the Confidential Information shall have notified the Sub‐ Service

Provider or other person that the same is confidential and shall have obtained an undertaking in respect

of the confidential information substantially on the same terms as those contained in this Clause 26.

26.4 The Service Provider shall not disclose any term of this Contract.

26.5 The parties acknowledge that, since damages or an account of profits will not be an adequate remedy for

a breach of this Clause, a party is entitled to an injunction to prevent a breach or a continued breach.


27 Term and Termination

27.1 Not used.

27.2 HKCMCL may terminate this Contract:

27.2.1 by giving at least 3 months written notice to Service Provider;

27.2.2 by exercising its rights under Clause 38.6.

27.3 HKCMCL may terminate this Contract in its entirety or any part thereof on written notice with effect from

the date specified in the notice if:

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27.3.1 the Service Provider commits any material breach of any provision of this Contract, or any part thereof as the case may be, which in the case of a breach capable of remedy has not been remedied within seven (7) days of service upon Service Provider of a notice specifying the breach and requiring it to be remedied;

27.3.2 any Detailed Design fails to meet the requirements of the Specification under Clause 6.5.1 or if the parties fail to reach agreement thereto under Clause 6.5.2 (a);

27.3.3 in the event that Service Provider fails to complete any Key Milestone by the relevant Key Date under this Contract;

27.3.4 the Service Provider shall fail to complete any or all Acceptance Tests required to be performed under this Contract by the relevant Key Date;

27.3.5 in the event that the aggregate of all liquidated damages payable or allowable by Service Provider pursuant to Clause 25 exceeds ten per cent (10%) of the Fixed Sum for any Phase;

27.3.6 there is a change in the Control of Service Provider after the Effective Date without the prior written consent of HKCMCL;

27.3.7 the Service Provider or an Affiliate of Service Provider has a receiver or administrative receiver appointed, or passes a resolution for winding‐up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect:

27.3.8 the Service Provider or an Affiliate of Service Provider becomes subject to an administration order, enters into any voluntary arrangement with its creditors, or ceases (or threatens to cease) to carry on business;

27.3.9 the Service Provider or an Affiliate of Service Provider is presented in a petition for bankruptcy or has a meeting convened to consider a resolution for the making of an administrative order against it, or its winding up, bankruptcy or dissolution;

27.3.10 any non‐conforming Equipment, Software or Works has not been corrected, or if two (2) or more such non‐conformities occur within any 30 day period, as described in Clause 29.7;

27.3.11 the Service Provider refuses or neglects to comply with a written notice from HKCMCL requiring Service Provider to remove non‐conforming Equipment, Software or Works;

27.3.12 the events described in Clause 42.2 occur;

27.3.13 the right to terminate by HKCMCL or any of its Affiliates arises under any other agreement entered into by HKCMCL or its Affiliates with Service Provider or its Affiliates; or

27.3.14 any licences, permits or authorisations required by Service Provider to carry out the Project under this Contract are suspended, revoked, cancelled or otherwise terminated.

27.4 In addition to its right to terminate this Contract under Clause 3, HKCMCL may, if any of the circumstances

referred to in Clause 3 have occurred, take any one or more of the following steps:

27.4.1 suspend payment to Service Provider of any or all payment due under this Contract;

27.4.2 without terminating this Contract itself provide or procure the carrying out of all or any part of the Project until such time as the Service Provider has reasonably demonstrated that Service Provider will once more be able to perform that part of the Project according to this Contract, including the Specifications and the Project Plan. In these circumstances, HKCMCL is entitled to deduct from the Contract Sum any cost reasonably incurred by HKCMCL in providing or procuring the carrying out of that part of the Project;

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27.4.3 without terminating the whole of this Contract, terminate any part of this Contract in respect of which Service Provider has committed a breach;

27.5 If HKCMCL enforces any of its rights under Clause 27.4.2 or 27.4.3 the provisions of Clause 27.7 shall apply

in relation to the part of the Project affected.

27.6 The rights of HKCMCL under Clause 27.3 and 27.4 may be exercised successively in respect of any one or

more failures by Service Provider and are in addition and without prejudice to any other right HKCMCL

may have against Service Provider.

27.7 This Contract may be terminated by Service Provider immediately on giving notice in writing to HKCMCL

if:

27.7.1 HKCMCL has a receiver or administrative receiver appointed, or passes a resolution for winding‐up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;

27.7.2 HKCMCL becomes subject to an administration order, enters into any voluntary arrangement with its creditors, or ceases (or threatens to cease) to carry on business;

27.7.3 HKCMCL is presented with a petition for bankruptcy or has a meeting convened to consider a resolution for the making of an administrative order against it, or its winding up, bankruptcy or dissolution; or

27.7.4 HKCMCL commits any material breach of any provision of this Contract which in the case of a breach capable of remedy has not been remedied within seven (7) days of service upon HKCMCL of a notice specifying the breach and requiring it to be remedied.

27.8 Any termination of this Contract (howsoever occasioned) shall not affect any accrued rights or liabilities

of either party nor shall it affect the coming into force or the continuance in force of any provision hereof

which is expressly or by implication intended to come into or continue in force on or after such termination

including any warranties given by Service Provider under Clause 29.

28 Consequences of Termination

28.1 Within fourteen (14) days of receipt of notice of termination or by six months before expiry of the Term,

Service Provider shall prepare and provide to HKCMCL a detailed inventory and up‐to‐date report of the

stage reached in the Project and copies of any relevant Sub‐Service Providers and licence terms to assist

HKCMCL in the smooth handover of the Project to new turnkey equipment supplier and the continued

implementation of the Project by the new turnkey equipment supplier.

28.2 On any termination of this Contract under Clause 27.3, HKCMCL shall be entitled (but without prejudice

to any other claims either party may have):

28.2.1 to recover from Service Provider the amount of any direct loss or damage sustained or incurred by HKCMCL as a consequence of such termination; and

28.2.2 to take and use without restriction the System and the Project Intellectual Property, or any part thereof, in its then state of development including:

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28.2.3 all Detailed Designs, all Operating Manuals, Specially Written Software and Source Code to the Specially Written Software, the latest version of the working drafts of, or significant final papers for, any Project Intellectual Property which has not been delivered to HKCMCL in accordance with Clauses 4 or 7 and other documents and materials relating to the Project in existence at the date of termination (whether or not they are complete) on all media in which those documents and materials are held in Service Provider’s or any Sub‐Service Provider’s possession or control;

28.2.4 any Equipment and pre‐existing Software required by HKCMCL,

28.2.5 subject to payment by HKCMCL in respect of the Equipment and pre‐existing Software concerned and / or payment to reflect the value of the work carried out by Service Provider less any claims HKCMCL may have against Service Provider.

28.3 On any termination of this Contract under Clause 27.2 and Clause 27.6, without prejudice to any other

claims either party may have:

28.3.1 HKCMCL shall pay Service Provider for all the Equipment and Software and Project Intellectual Property which have been delivered to HKCMCL in accordance with Clauses 4 and 7;

28.3.2 HKCMCL shall pay Service Provider for all other Equipment and Software that are procured from any third party by Service Provider pursuant to this Contract, and for which Service Provider is legally obliged to pay for, prior to the date notice is given in accordance with Clauses 27.2 and 27.6; and

28.3.3 HKCMCL shall be entitled to take and use without restriction the System and the Project Intellectual Property, or any part thereof, in its then state of development including:

(a) all Detailed Design, all Operating Manuals, Specially Written Software and Source Code to the Specially Written Software, the latest version of the working drafts of, or significant final papers for, any Project Intellectual Property which has not been delivered to HKCMCL in accordance with Clauses 4 or 7 and other documents and materials relating to the Project in existence at the date of termination (whether or not they are complete) on all media in which those documents and materials are held in Service Provider’s or any Sub‐Service Providers possession or control;

(b) any Equipment and pre‐existing Software required by HKCMCL,

(c) subject to payment by HKCMCL in respect of the Equipment and pre‐existing Software concerned and payment to reflect the value of the work carried out by Service Provider less any claims HKCMCL may have against Service Provider.

28.3.4 If on any termination of this Contract HKCMCL appoints a new Service Provider to replace Service Provider performing all or any part of the Project or HKCMCL itself performs all or any part of the Project, Service Provider agrees to use its best endeavours:

(a) to assist and co‐operate in the handover and its dealings with HKCMCL and such third party to minimise disruption to HKCMCL; and

(b) to ensure, subject to payment under Clauses 28.2 or 28.3, that all licences of the Software and the Equipment granted to HKCMCL continue. In particular, Service Provider shall provide, at standard rates, up to two (2) months of technical advice which could include or take the form of training for HKCMCL and/or the new Service Provider’s personnel, consultants and sub‐Service Providers.

28.4 On any termination of this Contract or on the exercise of HKCMCL’s rights under Clause 27.4, HKCMCL

shall be entitled to order Service Provider, its employees and Sub‐Service Providers to vacate the Site

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within seven (7) days of the relevant notice of termination or notice to Service Provider that HKCMCL has

elected to exercise its rights under Clause 27.4.

29 Undertakings, Warranties and Representations

29.1 The Service Provider represents, warrants and undertakes to HKCMCL that:

29.1.1 the Service Provider has title, free of all liens and encumbrances, to all Equipment and Software that is supplied under this Contract. For Third Party Software, Service Provider represents and warrants that it has the right to grant to HKCMCL the licences granted hereunder;

29.1.2 all Equipment and Software shall conform to all Specifications, statements of work and other requirements set forth in this Contract, shall be free from material defects in materials and workmanship, and shall be free from material defects in design. In respect of any Equipment and Software such warranty period shall be twelve (12) months from the relevant Acceptance Date. Without limiting the warranties contained elsewhere herein, Service Provider warrants that (i) only good quality materials, parts and equipment and good and careful workmanship have been used in connection with the manufacture and installation of the Equipment; (ii) the Equipment and Software are such that when Accepted the System shall be capable of operating in accordance with the Specifications and shall successfully interface and interconnect with all existing and future installations including other Equipment and Software; (iii) the Equipment and Software shall operate without risk or danger to the general public or persons operating the Equipment; and (iv) the Equipment shall not create pollution nor produce hazardous fumes;

29.1.3 if the Service Provider is not the manufacturer or licensor of the Equipment and/or Software, Service Provider shall obtain the same warranty as specified herein from the manufacturer or licensor and the complete warranty shall pass to HKCMCL. Service Provider shall assist and co‐operate with HKCMCL in making claims under such warranty;

29.1.4 the supply of spare or replacement parts and materials for the System shall be available until the tenth anniversary of the date of issue of the Completion Certificate;

29.1.5 the Service Provider shall perform the Works with promptness, efficiency and diligence and hereby warrants that the Works shall be performed in accordance with the highest standards in the field to the reasonable satisfaction of HKCMCL;

29.1.6 the Works shall be free from defects and deficiencies in performance or material, shall conform strictly to the Specifications and the requirements set forth in this Contract, shall meet all safety and operating criteria as specified herein, and shall be fit and sufficient for the purposes expressed in, or reasonably to be inferred from this Contract, for a period of twelve (12) months from the relevant Acceptance Date of the System or any part thereof to which such Works relate;

29.1.7 the warranties herein shall not be affected by removal and relocation of Equipment, or the removal and relocation of Software;

29.1.8 all work performed by Service Provider and its Sub‐Service Providers not otherwise mentioned in this Clause, shall be adequate and sufficient for the purposes intended, in conformity with the terms of this Contract and free of defects and deficiencies.

29.1.9 the Service Provider's obligation to design and engineer in accordance with the Specifications and its warranties set forth herein shall not be reduced or affected by HKCMCL's approval of any designs, drawings or specifications;

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29.1.10 the Detailed Design shall be prepared with due care and attention and all information contained in it is true, accurate and complete;

29.1.11 all information, representations and statements communicated (whether in writing or otherwise) to HKCMCL by Service Provider or its Sub‐Service Providers in connection with or arising out of the Detailed Design are true, complete and accurate in all respects;

29.1.12 upon the issue of the Completion Certificate, all necessary equipment, software and procedures for the management and operation of the System and all user interfaces will be in place for the implementation by the relevant systems integrator appointed by HKCMCL of the overall integration of all other systems within the Cyberport Project;

29.1.13 it is of sound financial standing and Service Provider is not aware of any circumstances (other than any circumstances that may be disclosed in the auditors' report on the accounts or other financial statements of Service Provider) which may adversely affect that financial standing in the future;

29.1.14 the Service Provider shall perform its obligations under this Contract in compliance with all laws (including laws relating to telecommunications, health, safety and the environment) and obtain and maintain all consents and licences required by law for the carrying out of the Works in completing the Project in accordance with this Contract including any import or export licences and all telecommunications licences;

29.1.15 it has full power and authority to enter into this Contract and to carry out the Project;

29.1.16 it is not aware as at the date of the Contract of any matters which might or will adversely affect its ability to perform its obligations under this Contract;

29.1.17 all Equipment or Software delivered shall have successfully passed the Factory Acceptance Test Procedures;

29.1.18 all Equipment, Software and the System shall be used and maintained in accordance with the relevant manufacturer's or supplier's technical specifications and the relevant Operating Manuals;

29.1.19 the Operating Manuals shall provide complete and accurate instructions for the operation, maintenance and repair of the System, Equipment and Software;

29.1.20 it shall procure that its Sub‐Service Providers are bound by the obligations of Service Provider under this Contract in connection with the execution of the Project; and

29.1.21 it is an experienced supplier of turnkey projects of the nature of those to be provided under this Contract.

29.2 Without prejudice to any other rights HKCMCL may have under this Contract, including under Clauses 17,

27.3 and 27.4, HKCMCL shall be entitled to give notice of any Equipment, Software or Works that do not

conform to the requirements of the Specifications and this Contract and require the Service Provider to

implement a plan for repair and replacement. Thereafter, Service Provider shall, no later than three (3)

days after such notice has been given, propose a plan for repairs and replacement for HKCMCL's approval,

including the time period within which such repairs and replacement must be completed. If Service

Provider does not begin its plan for repairs and replacements within the time mutually agreed or if Service

Provider and HKCMCL fail to reach agreement on such a plan within seven (7) days of the receipt by Service

Provider of HKCMCL's notice of such breach, HKCMCL, after advising Service Provider in writing, shall be

entitled at its option and at Service Provider's expense to perform or have third parties perform such work

as is necessary to remedy or cause to be remedied such breach or to pursue such other remedies as may

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be available to it under this Contract or by law.

29.3 The rights and remedies of HKCMCL under this Clause shall be without prejudice to any other rights

HKCMCL may have under this Contract. The rights and remedies of HKCMCL provided by this Clause are

in addition to any other rights and remedies provided by law or in equity or otherwise.

29.4 Warranties shall survive inspection, Acceptance and payment and shall run to HKCMCL, its agents,

successor, assigns and customers.

29.5 The Service Provider shall, at no expense to HKCMCL, promptly correct any failure to fulfil the above

warranties which may appear at any time during the warranty period. HKCMCL shall notify Service

Provider of such failure during the warranty period. Service Provider shall promptly remedy such non‐

conformities at no additional charge.

29.6 The implementation of any plan for repairs and replacements of non‐conforming Equipment, Software or

Works pursuant to Clause 29.2 shall be either corrected on‐site or returned to Service Provider for

correction, at Service Provider's expense and at HKCMCL's option. HKCMCL agrees to be reasonable in

requiring on‐site corrections.

29.7 If the non‐conformity has not been corrected pursuant to the agreed plan for repairs and replacements

within seven (7) days from Service Provider's receipt of returned Equipment or Software, or within the

time agreed upon for on‐site corrections, or if two (2) or more such non‐conformities occur within any

thirty (30) day period, then HKCMCL may, proceed in accordance with Clauses 27.3 or 27.4. If HKCMCL

so proceeds, Service Provider shall promptly remove such Equipment, Software or Works at its own cost,

or if removed by HKCMCL, the cost of such removal shall be payable by Service Provider or deducted from

any payments due to Service Provider from HKCMCL under this Contract. Service Provider shall restore or

bear the expenses of restoration of HKCMCL's property to its original condition at the direction of HKCMCL

and refund to HKCMCL all moneys previously paid for such Equipment, Software or Works.

29.8 The warranties expressed above are not sole and exclusive, but are in addition to any other expressed or

implied warranties. Any other rights provided in this Contract or by law are reserved.

29.9 The Service Provider shall not be liable under warranty for any damages or defects caused by the

negligence of HKCMCL or any third party. Service Provider's liability shall be proportionately reduced to

the extent HKCMCL or any third party contributed to such liability.

30 Service Provider Expertise and Resource

30.1 The Service Provider shall take all steps necessary to put itself in a position to be able fully and properly

to perform its obligations in accordance with the Contract.

30.2 The Service Provider confirms that it has all information, rights, materials and resources necessary to

enable it to provide the Works.

30.3 Except as otherwise specified in the Contract, the Service Provider shall determine and shall be

responsible for providing all management, staff, facilities and other materials and resources necessary to

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provide the Works.

30.4 The Service Provider acknowledges and confirms that:

30.4.1 it has carried out all necessary reviews, analysis and investigations to satisfy itself of the nature of:

(a) the current relevant technical environment of the System and other systems within Cyberport, and the necessary interfacing requirements of the System with other systems within Cyberport; and

(b) any other matters relevant to the compliance with its obligations in accordance with the Contract;

30.5 The Service Provider shall not be entitled to make any claim against HKCMCL whether in tort, contract or

otherwise on the grounds of its assessment, misunderstanding or misapprehension of the System and the

Works or on the grounds that incorrect or insufficient information was given to it by any person, whether

or not employed by HKCMCL.

31 Limitation of Liability and Indemnity

31.1 The Service Provider shall indemnify, defend and hold harmless HKCMCL and its Affiliates against any and

all demands, claims, damages, judgments, costs (including reasonable legal fees), penalties and liabilities

based upon, inconsistent with, relating to, or arising out of breach or failure of any of the agreements,

obligations, representations, warranties or undertakings of Service Provider hereunder. All rights and

remedies hereunder shall be cumulative and shall not interfere with or prevent the exercise of any other

right or remedy which may be available to HKCMCL. Upon notice from HKCMCL of any such claim,

demand or action being advanced or commenced, Service Provider agrees to adjust, settle or defend the

same at the sole cost of Service Provider.

31.2 The Service Provider shall indemnify, defend and hold harmless HKCMCL and its Affiliates against any and

all demands, claims, damages, judgments, costs (including reasonable legal fees), penalties and liabilities

based upon, inconsistent with, relating to, or arising out of or in connection with any act or default in the

carrying out of the Project by any of Service Provider’s Sub‐Service Providers, or their officers, employees,

agents or sub‐Service Providers of any tier.

31.3 Notwithstanding any other provisions of this Contract, neither party excludes or limits liability to the other

party for:

31.3.1 death or personal injury;

31.3.2 any other liability the exclusion of which is expressly prohibited by law.

31.4 Except as expressly provided in this Contract, HKCMCL shall not be liable to Service Provider, however

arising, whether by way of indemnity or by reason of any breach of this Contract or warranty or of

statutory duty or by reason of tort or the committing of any actionable wrong (including but not limited

to negligence) or undertaking of any account or otherwise for any indirect or consequential or special or

incidental damage whatsoever that may be suffered by the other including without limitation loss of profit,

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investment, revenue, return, use, operating time, contract, production, opportunity or goodwill, cost of

capital, cost of replacement power, increased cost of operation or maintenance, claims of customers or

third parties. For the avoidance of doubt, nothing in this clause shall prejudice either party's rights in

relation to or under any express indemnity contained in this Contract.

31.5 The parties expressly agree that should any provision contained in this Clause 31 be held to be invalid

under any applicable statute or rule of law it shall to that extent be deemed omitted, but if any party

thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall

be subject to the other limitations and provisions set out therein.

31.6 The parties acknowledge and agree that the allocation of risk and liability contained in this Contract is

reasonable in all the circumstances having regard to all relevant factors including the nature of the Project,

the negotiated Contract Sum and the ability of Service Provider to rely on its own insurance arrangements

to bear or recover any losses for which HKCMCL is not liable.

32 Insurance

32.1 Without limiting the obligations and responsibilities of Service Provider under Clause 31 or otherwise,

HKCMCL shall effect and maintain at its own expense for the benefit of and in the joint names of HKCMCL,

Service Provider and Sub‐Service Providers of any tier a policy of third party liability insurance and Service

Providers all risks in the terms set out in the Policy of Insurance.

32.2 HKCMCL shall not be liable for or in respect of any damage or compensation in respect of or in

consequence of any accident or injury to any workman or other person in the employment of Service

Provider or any Sub‐Service Providers of any tier, save and except to the extent that any accident or injury

results from any neglect, omission or default of HKCMCL, his agents or servants.

32.3 Without limiting its other obligations or the obligations of HKCMCL, Service Provider shall take out and

maintain on its own behalf and on behalf of its Sub‐Service Providers of any tier, insurance in respect of

claims for the death of or bodily injury to any person under a contract of service or apprenticeship with

Service Provider or any of its Sub‐Service Providers of any tier and arising out of and in the course of the

person’s employment in respect of the Project in terms and with insurers acceptable to HKCMCL and

Service Provider shall submit details thereof to HKCMCL for HKCMCL's prior written approval sufficiently

in advance of the Commencement of the Works..

32.4 Should Service Provider make default in insuring or continuing to insure as provided in this Clause 32,

HKCMCL may insure against any risk with respect to which the default shall have occurred and may deduct

a sum or sums equivalent to the amount paid or payable in respect of premiums from any monies due or

to become due to Service Provider.

32.5 In relation to all policies of insurances referred to in this Clause 32, Service Provider shall and procure that

its Sub‐Service Providers of any tier shall at all times comply with the provisions of the Policy of Insurance

and without limiting the generality of the foregoing shall and shall procure that its sub‐Service Providers

shall notify HKCMCL in writing full particulars of any circumstance or event or loss giving rise to or capable

of giving rise to a claim under the Policy of Insurance promptly upon becoming aware of the same.

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32.6 Any policy taken out by Service Provider pursuant to this Clause 32 shall extend for a period or periods

and be otherwise on terms sufficient to cover risks arising in the performance of the Project and the Works

required up to and including the time of issue of the Completion Certificate and beyond, to the extent

that Service Provider is obliged to remedy any defects past that date.

32.7 Without limiting its obligations and responsibilities under the Contract Service Provider shall:

32.7.1 insure at its own expense and for the full replacement value the Equipment, Software and other plant and equipment brought onto the Site for the purpose of the Project and the Works;

32.7.2 insure and keep insured at its own expense and shall cause any Sub‐Service Provider of any tier to so insure all marine vessels used in connection with the Works or the Contract for protection and indemnity liabilities including personal injury, loss of life, removal of wreck, collision, oil pollution and damage to fixed and floating objects;

32.7.3 comply and cause any Sub‐Service Provider of any tier to comply with the provisions of the Hong Kong Merchant Shipping (Compulsory Third Party Risk Insurance) Regulations and the Merchant Shipping (Pleasure Vessels) Regulations; and

32.7.4 effect and maintain professional indemnity insurance for a limit of indemnity of not less than HK$50,000,000 for each occurrence or series of occurrences arising out of one event, and with deductibles and excesses not exceeding 10% of the said cover from the Effective Date until 12 years after the date of the issue of the Completion Certificate.

32.8 Upon the occurrence of any event giving rise to a claim under any insurance maintained pursuant to

Clause 32.1 in respect of Service Providers all risks, Service Provider shall, without any delay on its part,

restore and repair the Works, Equipment and Software, replace any other goods and materials which have

been damaged or destroyed, remove all debris from the Site, comply with any further or other

requirements set out in the Policy of Insurance, and continue with the execution and completion of the

Project and the Works and with the performance of its other obligations under this Contract. Service

Provider shall seek payment from the insurer of all monies which are payable in respect of any such claim

including any monies paid to HKCMCL to cover professional fees (or a sum equivalent thereto) in full.

Service Provider shall not be entitled to any payment from HKCMCL in respect of the matters referred to

in this Clause 32.8 except and to the extent such loss or damage shall have arisen by the neglect, default

or omission of HKCMCL and its servants or agents (but excluding, for the avoidance of doubt, Direct Service

Providers) and the Project Manager shall certify in such event the amount of HKCMCL's contribution which

shall be valued in accordance with Clause 19.

33 Safety

33.1 The Service Provider shall, throughout the carrying out of the Project, use all reasonable endeavours to

ensure that the Works are executed in a safe manner and to ensure the safety of all persons on or in the

vicinity of the Site. Service Provider shall comply with all laws and regulations relating to safety in the

carrying out of the Project.

33.2 If, in the opinion of the Project Manager, the safety procedures implemented by Service Provider is at any

time insufficient or requires revision or modification to ensure the security of the Project and the safety

of all workmen upon and visitors to the Site, or the level of accidents on any part of the Site is, in the

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opinion of the Project Manager, unacceptable, the Project Manager may instruct Service Provider to revise

the safety procedures. Service Provider shall not be entitled to receive any payment, whether by way of

damages or otherwise howsoever, any adjustment in the Contract Sum, or any extension of time for the

completion of the Project, or any part thereof, in respect of any such instruction issued by the Project

Manager.

34 Publicity

34.1 Except with the written consent of HKCMCL, Service Provider shall not make any press announcements in

relation to this Contract or advertise the Project in any way.

34.2 The Service Provider shall take all reasonable steps to ensure the observance of the provisions of Clause

34.1 by its Sub Service Providers.

34.3 HKCMCL shall be entitled to publicise this Contract.

35 Sub‐contracts

35.1 The Service Provider shall not, without the prior written consent of HKCMCL, which shall not be

unreasonably withheld, enter into any Sub‐contract with any person for the performance of any part of

this Contract.

35.2 The delegation, disposal, sub‐contracting or subrogation of any part of the obligations of Service Provider

under this Contract shall not relieve Service Provider from any of its liabilities, duties or obligations under

this Contract. Service Provider shall be and remain responsible at all times for the acts, omissions,

neglects and defaults of its Sub‐Service Providers, agents, servants or workmen as fully as if they were the

acts, omissions, neglects and defaults of Service Provider.

35.3 The Service Provider shall give HKCMCL immediate notice in writing if the Service Provider gives or

receives any notice of termination of any contract between Service Provider and any permitted Sub‐

Service Providers.

36 Assignment

36.1 This Contract is personal to Service Provider. Service Provider shall not assign, novate, sub contract or

otherwise dispose of this Contract or any part thereof without the previous consent in writing of HKCMCL

which, in relation to any sub‐contracting, shall not be unreasonably withheld by HKCMCL.

36.2 HKCMCL shall be entitled to assign, novate or otherwise dispose of all or any part of its rights and

obligations under this Contract or any part thereof provided that any assignment, novation or other

disposal shall not increase the burden of Service Provider's obligations pursuant to this Contract.

36.3 HKCMCL shall be entitled to disclose to any successor body ("the Successor") any Confidential Information

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of Service Provider which relates to the Project. In these circumstances, HKCMCL shall authorise the

Successor to use the Confidential Information only for purposes relating to the Project and for no other

purposes and the Successor shall be bound by the confidentiality undertaking contained in this Contract

in relation to Confidential Information.

36.4 This Contract is binding on HKCMCL and its successors and assignees and Service Provider and Service

Provider's successors and permitted assignees.

37 Entire Agreement and Amendments

37.1 This Contract constitutes the entire understanding between the parties relating to the subject matter of

this Contract and, except as expressly referred to or referenced in this Contract, supersedes all prior

agreements, undertakings, representations, warranties, writings, negotiations, understandings and

arrangements of any nature whatsoever, whether or not in writing, with respect to the subject matter of

this Contract, except in respect of any fraudulent misrepresentation made by either party.

37.2 This Contract shall not be varied or amended unless the variation or amendment is agreed in writing and

signed by a duly authorised representative of HKCMCL on behalf of HKCMCL and by a duly authorised

representative of Service Provider on behalf of Service Provider.

38 Force Majeure

38.1 For the purposes of this Contract, the expression "Force Majeure" shall mean:

38.1.1 an outbreak of war (whether war be declared or not) in any part of HKSAR which, whether financially or otherwise, materially affects the execution of the Project;

38.1.2 an invasion of HKSAR; or

38.1.3 any of the following events:‐

(a) acts of terrorism in HKSAR;

(b) civil war, rebellion, revolution, insurrection or military or usurped power in HKSAR;

(c) riot, commotion or disorder in HKSAR otherwise than amongst the employees of Service Provider, Direct Service Provider or any Sub‐Service Provider currently or formerly engaged on the Project;

(d) earthquake in HKSAR; or

(e) tidal wave in HKSAR,

38.1.4 which materially adversely affects the execution of the Project by Service Provider or the manufacture, supply and delivery to the Cyberport site of materials, equipment or installations forming part of the Project by any Sub‐Service Provider.

38.2 Notwithstanding Clause 38.1 above, the following shall be deemed not to constitute or give rise to Force

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Majeure:

38.2.1 Any act, event, omission, happening or non‐happening attributable to the wilful act, neglect or failure to take reasonable precautions of the affected party, its servants, agents or employees;

38.2.2 Any dispute between Service Provider and its staff or any Sub‐Service Providers of Service Provider and its staff; or

38.2.3 Shortage of labour, materials or other resources.

38.3 Neither party shall be liable to the other for any loss of any kind whatsoever including any damages or

abatement of Contract Sum whether directly or indirectly caused to or incurred by the other party by

reason of any failure or delay in the performance of its obligations under this Contract to the extent due

to Force Majeure. Notwithstanding the foregoing, each party shall use all reasonable endeavours to

continue to perform, or resume performance of, its obligations under this Contract for the duration of the

Force Majeure event.

38.4 If either of the parties shall become aware of circumstances of Force Majeure which give rise to, or which

are likely to give rise to any failure or delay on its part, it shall immediately notify the other by the most

expeditious method then available and shall inform the other of the period which it is estimated that the

failure or delay shall continue.

38.5 It is expressly agreed that any failure by Service Provider to perform, or any delay by Service Provider in

performing, its obligations under this Contract which results from any failure or delay in the performance

of its obligations by any person, firm or company with which Service Provider shall have entered into any

contract, supply arrangement or sub contract or otherwise, shall be regarded as a failure or delay due to

Force Majeure only in the event that such person, firm or company shall itself be prevented from or

delayed in complying with its obligations under the contract, supply arrangement or sub contract or

otherwise as a result of circumstances of Force Majeure.

38.6 If any delay or failure to perform as a consequence of any event of Force Majeure (as referred to in Clause

38.1) continues for more than three months, HKCMCL may terminate this Contract immediately by giving

notice in writing to Service Provider, in which event neither party shall be liable to the other by reason of

such termination.

38.7 The only events which shall afford relief from liability for failure or delay shall be events qualifying for

Force Majeure under the express terms of this Clause.

39 Non‐waiver and Remedies Cumulative

39.1 The failure of either party to insist upon strict performance of any provision of this Contract, or the failure

of either party to exercise any right or remedy to which it is entitled, shall not constitute a waiver of that

provision and shall not cause a diminution of the obligations established by this Contract.

39.2 A waiver of any default shall not constitute a waiver of any subsequent default.

39.3 No waiver of any of the provisions of this Contract shall be effective unless it is expressly stated to be a

T/2017/015 CoC ‐ Page 35

waiver and communicated to the other party in writing in accordance with the provisions of Clause 45.

39.4 No payment or concession to Service Provider by HKCMCL or other act or omission of HKCMCL shall in any

way affect the rights of HKCMCL to recover liquidated damages or rebates payable under this Contract

unless a waiver has been expressly made in writing by HKCMCL.

39.5 The rights and remedies of the parties under this Contract are cumulative and in addition to any rights

and remedies provided by law.

40 Dispute Resolution Procedure

40.1 The parties shall attempt in good faith to resolve any dispute arising out of or in relation to this Contract

promptly and in accordance with the terms of this Clause.

40.2 All disputes between the parties arising out of or relating to this Contract shall, in the first instance be

referred to the parties’ respective Project Managers. A reported dispute should be discussed at a

meeting between the Project Managers to be held as soon as reasonably practicable upon the request of

either party. The Project Managers shall attempt to resolve the dispute as soon as possible and in a

manner satisfactory to both parties. The joint and unanimous decision of the Project Managers as

recorded in writing and signed by them shall be binding on the parties.

40.3 If any dispute cannot be resolved by the Project Managers within a maximum of fourteen (14) days (or

such other period as the parties may agree) after it has been referred to the Project Managers under

Clause 40.2, that dispute shall be referred to the Chief Executive of HKCMCL and the Chief Executive of

Service Provider for resolution. The joint and unanimous decision of the Chief Executive of HKCMCL and

the Chief Executive of Service Provider as recorded in writing and signed by them shall be binding on the

parties.

40.4 If the dispute cannot be resolved by the Chief Executive of HKCMCL and the Chief Executive of Service

Provider under Clause 40.3 within a maximum of fourteen (14) days (or such other period as the parties

may agree) after it has been referred to them under Clause 40.3 the parties may agree to refer the dispute

for mediation with the assistance of a mutual adviser appointed by the Hong Kong Mediation Council of

the HKIAC. The programme and structure for any negotiations shall be in accordance with and subject to

the Mediation Rules of the HKIAC for the time being in force or as otherwise agreed in writing between

the parties. All costs arising in respect of the mediation shall be borne by the parties equally.

40.5 If either party does not agree to a dispute being referred for mediation in accordance with Clause 40.4,

or if the parties fail to reach a mutually agreed settlement by mediation within twenty‐eight (28) days (or

such other period as the parties may agree) of the mediator being appointed, then the dispute shall be

resolved by arbitration in accordance with Clause 41.

40.6 While any dispute is being actively pursued for resolution pursuant to Clause 40.2 to 40.4 above, all claims

of the parties and any notice given relating to that dispute shall be suspended provided that:

40.6.1 either party shall be entitled by at least fourteen (14) days’ written notice in writing to the other to end the suspension of such claims and notices; and

T/2017/015 CoC ‐ Page 36

40.6.2 this Clause shall not prevent either party applying for any injunctive relief available at law.

40.7 Work and activity to be carried out under this Contract shall not cease or be delayed by the dispute

resolution procedures set out in this Clause.

41 Arbitration

41.1 Subject to Clause 40 and Clause 41.4 below, any dispute or difference of any kind whatsoever between

HKCMCL and Service Provider arising under, out of or in connection with this Contract shall be referred to

arbitration in accordance with the Domestic Arbitration Rules of the HKIAC for the time being in force.

The reference shall be a domestic arbitration for the purpose of Part II of the Arbitration Ordinance (Cap.

341).

41.2 In the event that HKCMCL is of the opinion that the issues in such a dispute or difference will or may touch

upon or concern a dispute or difference arising under, out of or in connection with the Project Agreement

("the Project Agreement Dispute") then subject to the prior written approval of HKCMCL and provided

that an arbitrator has not already been appointed pursuant to Clause 41.1 above, HKCMCL may by notice

in writing to Service Provider require and Service Provider shall be deemed to have consented to the

referral of such dispute or difference to the arbitrator to whom the Project Agreement Dispute has been

or will be referred.

41.3 Save as expressly otherwise provided, the arbitrator shall have full power to open up, review and revise

any decision, opinion, instruction, notice, order, direction, withholding of approval or consent,

determination, certificate, statement of objection, assessment or valuation of Service Provider or Service

Provider relating to the dispute or difference.

41.4 Notwithstanding any provision to the contrary in this Contract, neither party shall be entitled to commit

arbitration proceedings pursuant to this Clause 41 prior to the issue of the Completion Certificate or

termination of this Contract, if earlier.

42 Bribery and Corruption

42.1 Service Provider shall neither:

42.1.1 offer or give or agree to give any person employed by HKCMCL or acting on its behalf any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or performance of this Contract or any other agreement with HKCMCL or for showing or forbearing to show favour or disfavour to any person in relation to this Contract; nor

42.1.2 enter into this Contract if in connection with it commission has been paid or agreed to be paid to any person employed by HKCMCL or acting on its behalf by Service Provider or on Service Provider's behalf or to Service Provider's knowledge, unless before this Contract is made particulars of any such commission and of the terms and conditions of any agreement for the payment thereof have been disclosed in writing to HKCMCL.

42.2 In the event of any breach of this Clause by Service Provider or by anyone employed by Service Provider

T/2017/015 CoC ‐ Page 37

or acting on Service Provider's behalf (whether with or without the knowledge of Service Provider) or the

commission of any offence by Service Provider or by anyone employed by Service Provider or acting on

behalf of Service Provider under the Prevention of Bribery Ordinance (Cap.201) in relation to this or any

other contract for HKCMCL, HKCMCL may summarily terminate this Contract by notice in writing to Service

Provider with effect from the date specified in the notice. Termination under this Clause shall not

prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to

HKCMCL and HKCMCL may recover from Service Provider the amount or value of any such gift,

consideration or commission.

42.3 The decision of HKCMCL shall be final and conclusive in any dispute, difference or question arising in

respect of:

42.3.1 the interpretation of this Clause (except so far as the same may relate to the amount recoverable from Service Provider under Clause 28 in respect of any loss resulting from such termination of this Contract); or

42.3.2 the right of HKCMCL under this Clause to terminate this Contract; or

42.3.3 the amount or value of any such gift, consideration or commission.

43 Law and Jurisdiction

43.1 This Contract shall be governed by and construed in accordance with the laws of HKSAR.

43.2 The parties agree that the courts of Hong Kong have jurisdiction to settle any disputes in connection with

this Contract and hereby submit to the jurisdiction of those courts for that purpose.

44 Further Assurance

44.1 The Service Provider shall execute or cause to be executed all further documents and do any further act

(including Intellectual Property Rights licence or assignment agreements) as HKCMCL may reasonably

require to give effect to the purposes and intents of this Contract. If Service Provider fails to promptly

execute any such documents, Service Provider hereby appoints HKCMCL its irrevocable attorney to

execute any such documents for Service Provider. The rights of HKCMCL under this paragraph constitute

a power coupled with an interest and are irrevocable.

44.2 HKCMCL shall execute or cause to be executed all further documents and do any further act as Service

Provider may reasonably require to give effect to the purposes and intents of this Contract. If HKCMCL

fails to promptly execute any such documents, HKCMCL hereby appoints Service Provider its irrevocable

attorney to execute any such documents for HKCMCL. The rights of Service Provider under this

paragraph constitute a power coupled with an interest and are irrevocable.

45 Notices

T/2017/015 CoC ‐ Page 38

45.1 Except as otherwise expressly provided, no communication from one party to the other shall have any

validity under this Contract unless made in writing by or on behalf of HKCMCL or as the case may be by or

on behalf of Service Provider.

46 Severability

46.1 If the whole or any part of any provision of this Contract is or becomes invalid, illegal or unenforceable for

any reason, or is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, it

shall be severed from this Contract and the parties shall negotiate in good faith to agree a substitute

provision. The other provisions of this Contract and the remainder of the provision in question shall

remain in full force and effect.

47 Relationship

47.1 Nothing in this Contract shall be deemed to constitute a partnership between the parties nor, except to

the extent expressly provided, constitute either party the agent of the other for any purpose.

47.2 The parties do not intend any term of this Contract to be enforceable by any person who is not a party to

this Contract pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap. 623) (the "Ordinance"),

and the parties agree that this Contract shall be excluded from the application of the Ordinance.

48 Joint and Several Liability

48.1 The liability of any party under this Contract comprising more than one person shall be joint and several.

T/2017/015 CoC ‐ Page 39

Schedule A

Contract Sum, Payment Schedule and Key Dates

Contract Sum

The Contract Sum is HK$ (Hong Kong Dollars

only).

Payment Schedule

1 The HKCMCL Project Manager shall assess and decide the amounts due to the Service Provider from time

to time by way of interim payments for work comprised follows:

(a) when the Service Provider considers that a Payment Stage has been achieved, he shall apply to

the HKCMCL Project Manager a Completion Certificate together with an application of payment

‐ a statement of the amount applied for by the Service Provider by way of interim payment;

(b) the amount applied for by the Service Provider shall be the product of the relevant Payment

Percentage and the relevant Payment Stage Value.

(c) upon receipt of an application for payment, the HKCMCL Project Manager shall within 14 days

notify the Service Provider either :

(i) that he has no objection to the application of the Completion Certificate and/or the

amount applied for, and the HKCMCL Project Manager shall issue a Completion

Certificate to that effect. In any case, such amount may be included in the next

application for interim payment; or

(ii) that he has objections to the application of Completion Certificate and application of

payment, in which case such objections shall be stated and the Service Provider shall

not re‐apply for the Completion Certificate and payment until the grounds for such

objections have been removed; or

(iii) that he has no objection to the application of the Completion Certificate but the amount

applied for, in which case the amount (if any) which the HKCMCL Project Manager shall

assess the amount due with reasons, and such assessed amount (if any) may be included

in the next application for interim payment.

2 If :

(a) the HKCMCL Project Manager permits a revised Project Plan containing a change to the sequence

and timing of the execution of their Works;

(b) the HKCMCL Project Manager grants an extensions of time pursuant to Clause 13;

(c) the Service Provider is instructed by the HKCMCL Project Manager to adopt acceleration

measures pursuant to Clause 12;

(d) the HKCMCL Project Manager instructs a suspension of the Works or any part hereof pursuant to

Clause 12;

T/2017/015 CoC ‐ Page 40

(e) the HKCMCL Project Manager instructs a variation pursuant to Clause 12; or

(f) there shall be a significant change in a Payment Stage Value for by reason of a decision of the

HKCMCL Project Manager in accordance with this Contract,

the HKCMCL Project Manager may carry out an examination and review of the Payment Stages and

Payment Percentages and an assessment of the extent to which the Works have been carried out up to

the date of the review.

3 The Service Provider shall use its best endeavours to co‐operate with and assist the HKCMCL Project

Manager in making any such examination and review and shall provide all such information as the

HKCMCL Project Manager any reasonably request in connection therewith. If as a result of this

examination and review the HKCMCL Project Manager is of the opinion that it is fair and reasonable to

revise a Payment Stage and/or a Payment Percentage, then the HKCMCL Project Manager may give

fourteen (14) days' notice to the Service Provider of his intention to do so. On the expiration of the said

notice and after considering any representations the Service Provider may have made in the meantime,

the HKCMCL Project Manager shall, if he is still of the reasonable opinion that revisions ought to be made,

revise the Payment Stages and Payment Percentages in any manner which he sees fit and issue to the

Service Provider a schedule setting out the Payment Stages and Payment Percentages as so revised.

4 In this Contract, "achievement" of a Payment Stage means completion of the relevant work or

performance of the relevant action in accordance with the requirements of this Contract, including

without limitation the requirements applicable to the relevant work or action contained in the quality

plans prepared by the Service Provider and reviewed without objection by the HKCMCL Project Manager.

5 The Payment Stages (PS) comprise of :‐

% of Contract Sum Cumulative % of

Contract Sum

(a) PS No. 1 Upon signing the contract; 30 30

(b) PS No. 2 Upon completion of Key Milestone 2 and

Accepted by the HKCMCL Project Manager;

10 40

(c) PS No. 3 3 month after completion of Key Milestone 2; 20 60

(d) PS No. 4 6 month after completion of Key Milestone 2; 20 80

(e) PS No. 5 9 month after completion of Key Milestone 2; 20 100

Total : 100

Appendix F

Rev.0 (Effective: 4th June 2013) Offer to be bound – Page 1

OFFER TO BE BOUND

1. Having read the Tender Document including the Conditions of Contract, the Request for Proposal for Tender no. T/2017/015 - Robotic Concierge Services. I/we agreed to be bound by the terms and conditions as stipulated therein.

2. I/We do hereby offer to bind a contract with HKCMCL in the sum of Hong Kong Dollars ……………………………………………………………………………………………………………… ………………………………………….…………………….. (HK$ ……………………………………) or such sum as may be ascertained in accordance with the said terms and conditions.

3. I/We, also certify that the particulars given by me/us below, are correct:-

3.1 The number of my/our/the Company's Business Registration Certificate is

..........................................................................................................................................................................

3.2 The date of expiry of my/our/the Company's Business Registration Certificate is

..........................................................................................................................................................................

4. I am the Secretary/Managing Director of the limited company mentioned below and duly authorized to bind this company by my signature.

- or -

I am a partner/we are partners in the firm mentioned below and duly authorized to bind the firm and all partners of the firm for the time being.

- or -

This tender is submitted with the authority and on behalf of .................................................................................................................................................................... whose registered office is situated at ......................................................................................................... .................................................................................................................................................................... Hong Kong.

In the event of any queries relating to our offer please contact

....................................................................................................................................................................

....................................................................................................................................................................

Tel. No. …………………………………………………………………….

Signature:- .....................................................................................................................

Dated this ………… day of ……………………………… of 20

Note : (i) All the particulars required above must be completed.

(ii) * Delete where inapplicable.

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