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AGREEMENT FOR DELIVERY OF METERING INFRASTRUCTURE
concluded on [●] in [●] by and between:
I.
II.
ENERGA-OPERATOR S.A. with its registered office in Gdańsk (80-557), ul. Marynarki Polskiej
130, entered in the business register of the National Court Register under file no. KRS 33455,
whose registration documentation is kept by the Gdańsk – North District Court, 7th Commercial
Division of the National Court Register, NIP: 583-000-11-90, REGON: 190275904, with share capital of PLN 603,301,400, paid in full, hereinafter referred to as "Contracting Authority"
represented by:
1. __________________________ – _____________________________
2. __________________________ – _____________________________
- in accordance with current excerpt from the business register constituting Appendix [1] to this
Agreement;
[•] with its registered office in [•] on [address], [zip code] [town/city], entered in the business register of the National Court Register under file no. KRS [•], whose registration documentation is
kept by the District Court for [•], [•]th Commercial Division of the National Court Register, NIP:
[•], REGON: [•], with share capital of PLN [•], hereinafter referred to as "Contractor"
represented by:
3. __________________________ – _____________________________
4. __________________________ – _____________________________
- in accordance with current excerpt from the business register constituting Appendix [2] to this
Agreement.
The Contracting Authority and the Contractor shall hereinafter be referred to as a "Party" or "Parties",
respectively.
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TABLE OF CONTENTS
PREAMBLE
........................................................................................................................................................... 3
CHAPTER 1. DEFINITIONS .................................................................................................................................... 3
CHAPTER 2. SUBJECT MATTER OF THE AGREEMENT ........................................................................................ 7
CHAPTER 3. KEY AGREEMENT PERFORMANCE RULES ...................................................................................... 8
CHAPTER 4. DELIVERY OF MOCK-UP, TESTING AND DIAGNOSTIC SOFTWARE AND DEVICES, TEST
SCENARIOS, DOCUMENTATION OF DEVICES AND CERTIFICATES. ........................................... 12
CHAPTER 5. DELIVERY OF DEVICES................................................................................................................... 13
CHAPTER 6. ADDITIONAL OBLIGATIONS CONCERNING THE DEVICES .......................................................... 14
CHAPTER 7. STARTUP OF DEVICES.................................................................................................................... 16
CHAPTER 8. WORKSHOPS................................................................................................................................... 16
CHAPTER 9. CONTRACTOR'S SUBCONTRACTORS AND STAFF ....................................................................... 17
CHAPTER 10. CONTRACTING AUTHORITY'S COOPERATION ............................................................................ 19
CHAPTER 11. ORGANIZATIONAL STRUCTURE AND MANAGEMENT OF THE PERFORMANCE OF THE
AGREEMENT ................................................................................................................................... 20
CHAPTER 12. CHANGE CONTROL PROCEDURE .................................................................................................. 20
CHAPTER 13. ACCEPTANCE PROCEDURES .......................................................................................................... 23
CHAPTER 14. ACCEPTANCE OF MOCK-UP, TESTING AND DIAGNOSTIC SOFTWARE, TEST SCENARIOS
AND DOCUMENTATIONS OF DEVICES .......................................................................................... 24
CHAPTER 15. ACCEPTANCE OF DEVICES ............................................................................................................. 25
CHAPTER 16. ACCEPTANCE OF WORKSHOPS ..................................................................................................... 26
CHAPTER 17. WARRANTY FOR THE DEVICES' COMMUNICATION WITH THE CENTRAL SYSTEM.
FINAL VERIFICATION. PARTIAL VERIFICATION. ........................................................................ 26
CHAPTER 18. WARRANTY FOR DEFECTS OF DELIVERABLES ........................................................................... 28
CHAPTER 19. WARRANTY FOR STARTUP (SLA) ................................................................................................. 31
CHAPTER 20. INTELLECTUAL PROPERTY RIGHTS ............................................................................................. 32
CHAPTER 21. REMUNERATION AND TERMS OF PAYMENT ............................................................................... 36
CHAPTER 22. LIABILITY OF PARTIES .................................................................................................................. 38
CHAPTER 23. TERM AND TERMINATION OF THE AGREEMENT ....................................................................... 40
CHAPTER 24. SECURITY FOR THE PROPER PERFORMANCE OF THE AGREEMENT ........................................ 44
CHAPTER 25. PROTECTION OF INFORMATION, PERSONAL DATA ................................................................... 44
CHAPTER 26. MISCELLANEOUS ............................................................................................................................ 46
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PREAMBLE
Whereas:

The Energa Group is an integrated power company supplying electricity to individual recipients as
well as businesses and is one of the leaders on the Polish market;
 The Contracting Authority is the distribution system operator within the Energa Group;
 The Contracting Authority intends to make changes to the technology which is used for metering
data acquisition and which allows remote management of meters and, to that effect, it intends to
make changes to the metering and system infrastructure used for that purpose;
 The change will consist in, among other things, establishing a new system for processing the data
read from the electricity meters (the AMI System), allowing to utilize the data obtained from the
recipients to the fullest possible extent and allowing two-way communication with the Metering
Infrastructure;
 One of the elements necessary for establishment of the AMI System is the replacement of the current metering infrastructure through replacing the electric power meters with the intermediating
devices, which will make it possible to gather and transmit data in the AMI System;
 The correct functioning of the Metering Infrastructure which will result in correct and uninterrupted collection of data, is of key importance for the Contracting Authority to maintain its image
of an entity which cares for the highest quality of customer service and ensures competitiveness of
provided services;
 The Contractor is a professional entity which offers and supplies the elements of technologically
advanced technical infrastructure used for gathering and processing the metering data, and which
has specialist skills and experience in the foregoing regard;
Now therefore the Parties conclude the following Agreement:
CHAPTER 1. DEFINITIONS
§ 1.
For the purposes of this Agreement, the Parties hereby agree upon the following definitions:
The Parties shall assign the following meaning to the following terms which are capitalized in
the Agreement.
CERTIFICATE
A document issued by an institution which is external with respect to
the Contractor, described in Appendix 3 to the Agreement [List and description of Deliverables] as Deliverable P.4.
WORKSHOP
COMPLETION
CERTIFICATE
Individual, name-specific certificate issued by the Contractor or the
manufacturer or the distributor of the Device (regardless of the document's name), confirming – by the positive outcome of the test – the
completion of Installation or Startup Workshops by the given participant of the workshops and his/her acquisition of relevant skills related
to, respectively, installation or start-up of the Devices. The Certificate
may be issued on the basis of the Agreement or on the basis of other
agreements concluded between the Contractor and the Contracting Authority, provided that they pertain to the Devices covered by this
Agreement.
REPAIR TIME
Time from notifying about the Defect to its removal.
Any documents other than Certificates, Workshop Completion Certificates and Test Scenarios, in hard copy or in the electronic form, supDOCUMENTAplied by the Contractor, mentioned in the Agreement, in particular in
TION OF DEVICES
the Contractor's Bid and Appendix 3 to the Agreement [List and description of Deliverables].
DOCUMENTA-
Documentation encompassing detailed description of communication
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TION OF INTERFACES
protocols and interfaces of Devices which in particular enable integration with the Contracting Authority's Central System. The required
scope of Documentation of Interfaces is described in the description of
Deliverable P.5 in Appendix 3 to the Agreement [List and Description of
Deliverables].
BUSINESS DAY
A day from Monday to Friday, except for statutory holidays in Poland.
CONTRACTOR'S
PROPRIETARY
ELEMENTS
Any creations (also those that have not been finished) within the understanding of the Act on Copyrights and Neighboring Rights of 4 February
1994 (consolidated version in Journal of Laws of 2006, No. 90 item 631,
as amended) which are supplied by the Contractor or will be created as
part of performance of the Contractor's obligations arising out of the
Agreement. Contractor's Proprietary Elements include in particular the
following: Certificates, Workshop Completion Certificates, Test Scenarios, Documentation of Devices and Software.
GPZ
Main Supply Point – an element of the power infrastructure located on
the boundary between Zone A and Zone B, in which the devices of the
Intermediating Infrastructure will be located; it is also an electricity
transformation point from the power distribution grid to the switching
grid.
ENERGA GROUP
The Contracting Authority, Energa S.A. with its registered office in
Gdańsk as well as entities affiliated with them, according to the definition of affiliated entity found in the Accountancy Act of 29 September
1994 (i.e. Journal of Laws of 2002, No. 76 item 694, as amended), including entities which will meet the foregoing prerequisites after conclusion of the Agreement.
CONFIDENTIAL
INFORMATION
Information on the provisions of the Agreement, Test Scenarios, Documentation as well as any information concerning the enterprise of an
entity from the Energa Group, including in particular technical, technological, commercial and marketing information, information concerning
the enterprise's finances and organization, content of processed personal data, information on security measures of the IT systems.
METERING INFRASTRUCTURE
Technical infrastructure, including Metering Devices and Concentrator
and Balancing Sets installed on the Medium Voltage (SN)/Low Voltage
(nN) stations and other Devices and Software, which serves the purpose
of measuring the electricity consumption and its parameters and then
sending the measured data via the Intermediating Infrastructure to the
Central System. The Metering Infrastructure will be prepared for connecting to it other devices functioning within the HAN network, including meters of other utilities.
INTERMEDIATING INFRASTRUCTURE
The intermediating infrastructure, including hardware and software,
whose purpose is to ensure transmission of information in Zone B from
the Metering Infrastructure to the Central System and from the Central
System to the Metering Infrastructure.
A device constituting an element of the Concentrator and Balancing Set,
intended for gathering the data acquired from greater number of meters
CONCENTRATOR and transmitting them through the Ethernet connection to Zone B in the
form of a single data stream, and the elements of Software and Documentation of Devices related to it.
MOCK-UP
A deliverable constituting the prototype of solutions delivered by the
Contractor on the basis of the Agreement, described as Deliverable P.1
in Appendix 3 to the Agreement [List and Description of Deliverables].
REPAIR
Removal by the Contractor of the Defect or other inconsistency with the
requirements stipulated in the Agreement which is not a Defect, in parENERGA–OPERATOR SA
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ticular through repairing or replacing the defective Device with the
same Device which is free of Defects, or removal of defect of software
(firmware) of the individual Devices supplied on the basis of the
Agreement.
AREA OF INSTALLATION
The area of power grid specified in Appendix 4 [Area of Installation] in
which the Start-up will occur and the Devices supplied by the Contractor will be used.
BID
A bid submitted by the Contractor under the procedure conducted for
the purpose of concluding this Agreement, included in Appendix 5 [Contractor's Bid] to the Agreement.
SOFTWARE
Each computer software associated with the Devices, in particular software which is essential for operation of the Devices or which supports
the Devices' functioning (firmware) as well as the Testing and Diagnostic Software, regardless of the form in which the software was recorded
or supplied, including software recorded on the Device's hard drive.
TESTING AND
DIAGNOSTIC
SOFTWARE
The computer software used for testing, diagnostics and parameterization of Devices supplied by the Contractor.
CONTRACTOR'S
STAFF
The Contractor's employees as well as natural persons working for the
Contractor on the basis of mandate agreements or work product
agreements, also on the basis of business activity conducted by them
(individual business activity or civil partnership), seconded by the Contractor to carry out the tasks related to the performance of the Agreement.
CONTRACTING
AUTHORITY'S
STAFF
Employees of the entities from the Energa Group as well as any other
natural persons working for the Contracting Authority on the basis of
mandate agreements or work product agreements, also on the basis of
business activity conducted by them (individual business activity or
civil partnership), directly or indirectly authorized by the Contracting
Authority to carry out the specified tasks related to the performance of
the Agreement on the Contracting Authority's behalf.
SUPERVISORY
ENTITY
The entity authorized to supervise or control the Contracting Authority's
activity or the Devices' operations (in particular the Energy Regulatory
Authority, the Central Office of Measures, the Inspector General for the
Protection of Personal Data).
DELIVERABLE
A single service provided by the Contractor, including individual Devices or group of Devices, Mock-up, Testing and Diagnostic Software, Test
Scenarios, individual elements of Documentation and Workshops. The
description of Deliverables may be found in Appendix 3 to the Agreement [List and Description of Deliverables].
A set of procedures serving the purpose of verifying the Mock-up's conformity with the requirements of the Agreement; Element of Deliverable
TEST SCENARIOS
P.1 in Appendix 3 to the Agreement [List and Description of Deliverables].
DATA TRANSMISSION NETWORK
The network comprising the AMI System, consisting of devices designated for transmission of data through the network, which will ensure
two-way transmission of data between the Central System and the Metering Infrastructure. The Data Transmission Network has been divided
into 3 communication zones: Zone A, Zone B and Zone C.
ZONE A
a fragment of Data Transmission Network which transmits data between the Central System and the grid devices installed on GPZ.
ZONE B
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tween the devices installed on GPZ and the Concentrators installed on
the Medium Voltage (SN)/Low Voltage (nN) station. Zone B will be realized with utilization of Intermediating Infrastructure.
ZONE C
a fragment of Data Transmission Network which transmits data between Concentrators installed on the Medium Voltage (SN)/Low Voltage (nN) station and the Metering Devices.
AMI SYSTEM or
SYSTEM
a technological and organizational solution which automates the processes of reading and managing the data from the Metering Infrastructure, consisting of the following:
1) Central System,
2) Intermediating Infrastructure,
3) Metering Infrastructure,
and which allows effective and efficient execution of readout and twoway transmission and processing of metering and technological data.
CENTRAL SYSTEM
an IT system constituting an element of the AMI System, which is the
central point to which the data are fed from the Metering Infrastructure
and in which they are processed, connected to the Metering Infrastructure through Zone A, Zone B and Zone C.
CERTIFICATES
OF APPROVAL
FOR USAGE
any evidence of legalization, certificates, attestations, confirmations of
conformity, confirmations of the Device's approval for usage in Poland
and European Union, seals, etc., required for the Devices by the regulations of the Polish or EU law, in particular the Act of 11 May 2001 entitled Law on Measures, the Act of 30 August 2002 on the System of Evaluating the Compliance, or Polish or European technical norms, in particular Certificates described in Appendix 3 to the Agreement [List and
Description of Deliverables].
WORKSHOP
COMPLETION
CERTIFICATE
Individual, name-specific certificate issued by the Contractor or the
manufacturer or the distributor of the Device (regardless of the document's name), confirming – by the positive outcome of the test – the
completion of Installation or Startup Workshops by the given participant of the workshops and his/her acquisition of relevant skills related
to, respectively, installation or start-up of the Devices. The Certificate
may be issued on the basis of the Agreement or on the basis of other
agreements concluded between the Contractor and the Contracting Authority, provided that they pertain to the Devices covered by this
Agreement.
AGREEMENT
This Agreement with appendices and any amendments hereto, if any.
START-UP
Launch of productive functioning and operation by the Contracting Authority of the Metering Devices installed within the Area of Installation,
performed in full, target functional scope and within the Contracting
Authority's current business processes.
DEVICE
Metering Devices and Concentrator and Balancing Sets described in
Appendix 3 to the Agreement [List and Description of Deliverables] and
the elements of Software and Documentation of Devices related to them.
METERING DEVICE
1-phase power meter and 3-phase power meter indicated in Appendix
[3] to the Agreement [List and Description of Deliverables] and the elements of Software and Documentation of Devices related to them.
DEFECT
Physical defect, incompleteness or other inconsistency with the Agreement on the part of the Deliverable, the Device or other item supplied to
the Contracting Authority by the Contractor on the basis of the Agreement, including:
1) non-operation or incorrect operation, including attributable to SoftENERGA–OPERATOR SA
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ware error,
2) any other physical defect, even if it does not limit the correct functioning (e.g. damage to the enclosure or the packaging),
3) incompleteness, in particular lack of assembly elements, including
incompleteness of the Software integrated or supplied with the Deliverable, the Device or other item (e.g. firmware) or the Documentation of the Device,
4) incompleteness or other substantive or formal flaws of the Documentation of the Device, Certificates, Workshop Completion Certificates or Test Scenarios,
and additionally:
5) non-operation or incorrect operation of the Testing and Diagnostic
Software,
6) lack of cooperation of the Device with other elements of the AMI System for the reasons attributable to the Contractor or the Device.
WORKSHOP /
WORKSHOPS
Workshops associated with implementation of the System whose purpose is to provide the participants with knowledge and skills necessary
for independent installation and startup (including configuration and
service) of the Devices, finalized with the test after which the participant will receive the Certificate of Completion of Installation or Startup
Workshops, provided that he/she passed the test.
A device which simultaneously carries out the functions of the balancing
meter and the Concentrator, indicated in Appendix [3] to the Agreement
[List and Description of Deliverables] and in Appendix 8 to the Agreement [Schedule; Specification of Deliveries; Delivery Locations] and
Software and Documentation of Devices related to it.
The provisions of the Agreement pertaining to the balancing meter or
the Concentrator apply to the Concentrator and Balancing Set. In particCONCENTRATOR ular:
AND BALANCING
1) if the Agreement imposes on the Contractor the obligation to replace
SET (ZKB)
the Device, the entire ZKB should be replaced, also if the replacement
results only from the functions of ZKB as a Metering Device or only
from the functions of ZKB as a Concentrator,
2) ZKB is taken into account in calculating the percentage of Metering
Devices meeting the criteria of Partial and Final Verification,
3) ZKB is taken into account in calculating the fulfillment of SLA conditions referred to in § 173.
NOTIFICATION
sending to the Contractor the notification on occurrence of Defect during the term of warranty.
CHAPTER 2. SUBJECT MATTER OF THE AGREEMENT
§ 2.
The Subject Matter of the Agreement is the delivery by the Contractor of the Devices consistent with the Bid and provision of support to the Contracting Authority in installation and
startup of Devices, and ensuring communication between the Devices and the Intermediating
Infrastructure, including in particular supplying the Deliverables indicated in Appendix 3 to
the Agreement [List and Description of Deliverables]:
1)
In Stage I:
Delivery of Deliverable P.1 – Metering Infrastructure Mock-Up with Mock-Up documentation, Testing and Diagnostic Software for the Mock-Up and Test Scenarios;
2)
In Stage II:
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(a) Delivery of Deliverable P.2 – Workshop materials and installation instructions;
(b) Delivery of Deliverable P.3 – conducting Workshops;
3)
In Stage III:
(a) Delivery of Deliverable P.4 – Certificates;
(b) Delivery of Deliverable P.5 – Documentation of Devices;
(c) Delivery of Deliverable P.6 – Testing and Diagnostic Software for Devices
(d) Delivery of Deliverable P.7 – Devices.
4)
In Stage IV:
granting warranty for the Devices and other Deliverables on principles described in the
Agreement.
§ 3.
§ 4.
The Contractor represents that:
1)
according to the Contractor's rational assessment, it is possible to perform the obligations arising out of this Agreement by the deadlines specified in the schedule included
in Appendix 8 to the Agreement [Schedule; Specification of Deliveries; Delivery Locations];
2)
it has the skills and experience required to properly perform this Agreement.
The parties concordantly confirm that the basic purpose of the Agreement is to provide the
Contracting Authority with the Devices constituting an element of the Metering Infrastructure operating as part of the AMI System and executing all the functions predicted for that element of the AMI System, with the appropriate Documentation of the Devices and the Software.
CHAPTER 3. KEY AGREEMENT PERFORMANCE RULES
§ 5.
The subject matter of the agreement will be performed in stages, in accordance with the
schedule specified in § 2 and for which more details may be found in Appendix 8 to the
Agreement [Schedule; Specification of Deliveries; Delivery Locations].
§ 6.
The Contractor covenants to carry out the subject matter of the Agreement with utmost professional diligence and using all its knowledge and experience.
§ 7.
The Agreement will be performed within the deadlines set forth in the schedule or in accordance with the provisions of the Agreement.
§ 8.
The Contractor covenants to perform the Agreement, in particular carry out the deliveries of
Devices and conduct Workshops, in such manner so as not to cause interruptions in the operations of the Contracting Authority's enterprise or interruptions in the activities of the entities (persons) in whose locations the Startup of Devices will take place, except for the cases
agreed upon by the Parties.
§ 9.
Regardless of other provisions of the Agreement, the Contractor covenants to ensure compliance of all delivered Devices, Documentation of Devices and Certificates with the regulations
prevailing in Poland as well as Polish and European technical norms and any guidelines, recommendations and acts (decisions / directives, etc.) issued by Supervisory Entities. Evaluation of the Devices' compliance will be performed as at the acceptance date of the Devices (§
124 and next of the Agreement).
§ 10.
The Contractor is obligated to provide all the tools, means of communication, means of transportation, Contractor's Staff, necessary software and other resources needed by the Contractor to perform the Agreement. The Contracting Authority is not obligated to provide the ConENERGA–OPERATOR SA
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tractor with any hardware infrastructure, software or any other resources unless the obligation to provide such resources results from the Agreement, including the scope – stipulated in
the Agreement – of the Contracting Authority's cooperation with the Contractor in the performance of the Agreement.
§ 11.
Under this Agreement, the Contractor is obligated to provide the persons indicated by the
Contracting Authority with the possibility of participation in the work conducted by the Contractor and specified by the Contracting Authority. For this purpose, upon Contracting Authority's request, the Contractor will inform such persons about the work performed, its
scope and location and will provide them with other information, as necessary for participation in the Contractor's works. In addition, the Contracting Authority reserves the right to use
third party services during the performance of the Agreement to inspect the quality and the
handling of all the work or specified works covered by the Agreement and to conduct such an
inspection by itself, through members of the Contracting Authority's staff (Quality Control).
Costs related to the above services and to the work of the Contracting Authority's staff members will be borne by the Contracting Authority. The Contractor will be obligated to provide
such persons with any information, data and clarifications in requested scope and make
available and present the results of work carried out and enable their inspection. Conducting
the inspections and participation in the Contractor's work does not affect the rules for performance of the Agreement by the Contractor. The Contracting Authority will obligate the
persons conducting the inspections and participating in the Contractor's work to keep strictly
confidential the information obtained while cooperating with the Contractor and it will limit
the possibility of transmitting such information so that it can only be transmitted to the Contracting Authority.
§ 12.
This Agreement does not authorize the Contractor to issue any binding instructions to the
members of the Contracting Authority's staff or third parties cooperating with the Contractor
under contract with the Contracting Authority and on its behalf, including the entities from
the Energa Group, but it may ask the Contracting Authority to issue such instructions.
§ 13.
The Contracting Authority has the right to organize the coordination meetings whose purpose will be to discuss the most important aspects of performance of this Agreement. The
meetings will be held:
1)
on regular basis, every two weeks, on dates and in places agreed in the schedule unless
the Contracting Authority's leading coordinator cancels the given meeting about which
fact he/she will notify the Contractor;
2)
additionally, ad hoc meetings will be held no more frequently than once a week at the
request of the Contracting Authority's coordinator, specifying the time and place of the
given coordination meeting and sent at least [2] Business Days in advance.
§ 14.
The Contractor will be obligated to second its representatives to participate in the coordination meetings referred to in § 13.
§ 15.
The Contractor is obligated to inform the Contracting Authority on an ongoing basis of any
threats related to the performance of the Agreement, including the circumstances attributable to the Contracting Authority that may affect the quality, timing or scope of work. Such information should be immediately provided to the Contracting Authority's coordinator and
accompanied by proposals of remedial actions. If such information is not conveyed, where the
Contractor is aware or, considering the diligence required by the Agreement, should be aware
of such threats then all the costs and any additional activities associated with consequences
of such an event will be borne by the Contractor. Moreover, the Contractor covenants to inform the Contracting Authority in writing about the progress in performance of the AgreeENERGA–OPERATOR SA
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ment, upon the Contracting Authority's additional written request.
§ 16.
Notwithstanding other provisions of the Agreement, the Contractor will be obligated to:
1)
monitor and update the schedule in accordance with the Agreement, including in particular deadlines for deliveries of Deliverables as well as work conducted by the Contracting Authority and third parties participating in the performance of this Agreement
on the basis of the contract with the Contracting Authority; for this purpose, the Contracting Authority will notify the Contractor about the scope of the third parties' involvement in the performance of the Agreement on the Contracting Authority's side;
2)
track the progress of performance of the Agreement and prepare current and periodic
work progress reports; additional forms of reporting not specified in the Agreement
will be agreed upon by the Parties' coordinators;
3)
monitor the threats to correctness and timeliness of the performance of the Agreement
and the execution of remedial actions in that regard;
4)
manage the Agreement performance process.
§ 17.
Any communication under the Agreement will be conducted in the Polish language (or original language with Contractor's simultaneous translation into the Polish language). Also, the
Test Scenarios and the entire Documentation of Devices will be prepared and delivered to the
Contracting Authority in the Polish language unless the Agreement stipulates otherwise or
the Contracting Authority expresses its consent for them to be delivered in a different language.
§ 18.
All the meetings of the Parties' representatives, in particular the meetings in which the Parties' coordinators will participate, will be held in the place specified by the Contracting Authority in Poland.
§ 19.
The Contractor will actively support the Contracting Authority, by providing it with information on the characteristics of the Devices and their service, and it will also support it in its
negotiations with the manufacturers, suppliers and contractors of other elements of the Metering Infrastructure and other elements of the System, in particular with respect to explaining the issues related to principles of communication (protocols, communication interfaces)
used in the Devices supplied by it, for the purpose of ensuring that the Devices will cooperate
with other elements of the Metering Infrastructure and other elements of the System, and it
will also ensure the attendance and cooperation of the members of the Contractor's Staff who
have relevant knowledge and experience at the meetings organized by the Contracting Authority.
§ 20.
The Contractor will ensure to the Contracting Authority that the security audits of the Devices
will be conducted in the scope and on the principles described by the following provisions.
§ 21.
The purpose of the security audit will be to check the audited Devices from the standpoint of
existence in them of the devices, sub-assemblies or software which could be used for the following unauthorized actions which are beyond the Contracting Authority's control:
1)
transmitting or modifying the data gathered by the Devices;
2)
transmitting the information to the Devices;
3)
switching the Devices on and off;
4)
gathering and processing the data which the Contracting Authority does not intend to
gather or process;
5)
and also from the standpoint of occurrence of other threats to ICT security of the audited Metering Infrastructure.
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§ 22.
The security audit will be conducted in the locations corresponding to the nature of the auditor's duties, in particular at the location where the Devices are manufactured and in the
warehouses of the Devices' manufacturer or the Contractor. The security audit will in particular consist in the following:
1)
checking the structure of the Devices;
2)
checking the software of the Devices;
3)
checking the building process of the Devices;
§ 23.
The audit will be conducted by the auditor specified by the Contracting Authority.
§ 24.
The Manufacturer of the Devices or the Contractor will be obligated to:
§ 25.
§ 26.
1)
provide auditor with access to the sites specified in § 22, for the purpose of inspecting
the Devices randomly selected by the auditor and checking the manufacturing process
of the Devices;
2)
provide to the auditor the idea diagram and the specification of materials used in the
components of the Devices, for the purpose of verifying the security of the structures
and their susceptibility to external manipulation;
3)
allow the auditor to move the selected Devices to the laboratory for the purpose of
conducting the audit;
4)
provide the auditor with the copy of the software for the Devices in source form that
has not been secured, so as to allow verification of the code from the standpoint of security, along with information on the compiler used and its settings. If the Manufacturer
does not express its consent for the auditor to conduct work related to verification of
source codes outside of its registered office, it will be obligated to provide – on its own
cost – the auditor with the possibility of conducting such work in the Manufacturer's
registered office, in particular provide access to the premises and the office infrastructure, Internet connection and possibly secure connections through VPN;
5)
provide the auditor with the information necessary to conduct the audit;
6)
provide answers to questions asked by the auditor;
The Manufacturer of the Devices or the Contractor will be obligated to allow the auditor to
verify the software included in the Devices (firmware), in particular through a proper reading
mechanism, where the verification of firmware will be conducted in accordance with the following rules:
1)
each Device should provide the possibility of reading the firmware file and recording it
on the hard drive space of an external computer,
2)
the reading mechanism should be secured by the manufacturer of the Metering Devices,
3)
the operation of reading the firmware from the meter will be conducted by the manufacturer of the Metering Devices in the presence of the auditor,
4)
software's source code, verified by the auditor from the standpoint of security, will be
compiled (in the environment and with the settings prepared by the Manufacturer) to
the executable software file,
5)
the executable software file will be provided to the auditor for evaluation of consistency with the firmware file read from the Device.
The audits may be carried out no more frequently than once every 6 (six) months, counting
from the date of concluding this agreement or completion of the previous audit. More frequent audits are permitted only if one of the previously conducted audits has given a negative
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result (it was determined that there had been security-threatening circumstances referred to
in § 21) or if the manufacturer of the Devices prevented the audit without justified reason.
§ 27.
Audits may be conducted only during the term of the Agreement.
§ 28.
Audits will be conducted using the no-cost method which means that each party covers on its
own the costs resulting from conducting the audit. In particular, the manufacturer of the Devices does not bear the costs of auditor's remuneration or the costs of auditor's staff's stay,
and the Contracting Authority will not bear the costs of Manufacturer's staff's remuneration,
the costs of audited meters or license fees for providing the software for analyses.
§ 29.
The Contracting Authority will ensure that the auditor will conclude confidentiality agreement with the entity providing the Devices, whose model constitutes Appendix 6 to the
Agreement [Model of Confidentiality Agreement].
CHAPTER 4. DELIVERY OF MOCK-UP, TESTING AND DIAGNOSTIC SOFTWARE AND DEVICES,
TEST SCENARIOS, DOCUMENTATION OF DEVICES AND CERTIFICATES.
§ 30.
The Contractor is obligated to deliver the following to the Contracting Authority by the deadline stipulated in the schedule:
1)
Mock-Up with Testing and Diagnostic Software for the Mock-Up and Test Scenarios;
2)
Certificates;
3)
Documentation of Devices;
4)
Testing and Diagnostic Software;
for the purpose of enabling the Contracting Authority to verify functionalities, quality and
technical parameters of the Devices, and also to provide to the Contracting Authority the information allowing two-way data transmission and integration of the Devices with the AMI
System – to ensure that it will be possible to use the Devices in full, target functional scope.
The mock-up must have the parameters which will not be worse than the sample delivered to
the Contracting Authority with the Bid.
§ 31.
The deliverables specified in § 30 will be delivered by the Contractor to the Contracting Authority's registered office.
§ 32.
The Testing and Diagnostic Software includes the computer software used for testing, diagnostics and parameterization of Devices supplied by the Contractor, and has the functionality
which enables the Contracting Authority to perform at least all the activities related to primary diagnostics and parameterization and subsequent changes of the parameters of the Devices, in full functional scope of the Devices described in the Agreement and in the scope required for the Contracting Authority to be able to use the Devices according to their intended
manner of use (exploiting the potential defined in the Certificates of Approval for Usage concerning the individual Devices).
§ 33.
The Testing and Diagnostic Software and the Test Scenarios will be supplied by the Contractor on CD-ROM/DVD-ROM carriers along with adequate technical and usage documentation
and any other components necessary for using the Testing and Diagnostic Software and with
the Test Scenarios according to the requirements and target functionality defined in the
Agreement and according to its intended manner of use.
§ 34.
During the term of the Agreement, the Contractor will be obligated, as part of its remuneration, to perform substantive updates of the Documentation of Devices, in particular if changes
are made to interfaces of individual Devices as compared to the description included in the
Documentation previously provided to the Contracting Authority, and to immediately provide
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to the Contracting Authority the updated versions of Documentation of Interfaces (corrections, updates and new versions of Documentation of Interfaces).
§ 35.
If there are any changes to the Devices, the Contractor will update on an ongoing basis, during
the term of the Agreement, as part of its remuneration, the Documentation of Devices and the
Testing and Diagnostic Software and Test Scenarios – provided that this will be necessary.
§ 36.
Upon delivery of Deliverables specified in item § 30 as well as any corrections or updates to
them or their new versions, the Contractor will grant or procure an authorized entity to grant
to the Contracting Authority the license for using the Deliverables, corrections or updates to
them or their new versions, on the principles described in Chapter CHAPTER 20 of the
Agreement; the Contractor represents that such licenses will be granted as part of basic remuneration and warrants that neither it nor any third party will demand from the Contracting Authority any other payments by virtue of granting licenses for usage of the Deliverables,
corrections or updates to them or their new versions, in the scope described in the Agreement.
§ 37.
Deliverables specified in item § 30 are subject to acceptance on the principles described in §
112 and next of the Agreement.
§ 38.
Besides providing to the Contracting Authority the full Documentation of Devices, the Contractor will explain, during the term of the Agreement, as part of its basic remuneration, any
doubts related to the content of the provided Documentation of Devices, including doubts
concerning the communication protocol used in the Devices.
CHAPTER 5. DELIVERY OF DEVICES
§ 39.
The Contractor is obligated to deliver to the Contracting Authority the Devices in the quantity, type, quality and technical and functional parameters described in the Agreement, including the Bid, and Appendix 3 to the Agreement [List and Description of Deliverables].
§ 40.
The Devices must be consistent with the requirements of the Agreement as well as the accepted Mock-up.
§ 41.
The Contractor is obligated to deliver the Devices in batches. The type and quantity of Devices, deadlines and delivery locations of the individual batches are defined by Appendix 8 to the
Agreement [Schedule; Specification and Delivery Locations]. Change of location of delivery of
the given batch to other location on the Polish territory may be made unilaterally by the
Leading Coordinator within three Business Days prior to the deadline of that delivery.
§ 42.
The deadlines for deliveries of Devices are reserved in favor of both Parties which means that
each early delivery of Devices requires the consent of coordinators of both Parties. If such
consent is not given, the Contracting Authority will have the right to refuse to accept early delivery of the Devices.
§ 43.
Detailed hours of delivery of Devices will be determined by the Contracting Authority's
branch coordinator and the Contractor's coordinator at least [3] Business Days prior to delivery deadline.
§ 44.
Until the moment of acceptance or conditional acceptance of all the Deliverables specified in §
30, the Contracting Authority may refuse to accept the Devices (also if they are delivered in
accordance with the Agreement) if it is not possible to determine the Devices' consistency
with the Mock-up; the consequences of such refusal will be the same as refusal of acceptance
attributable the Devices' inconsistency with the Agreement or the Mock-up.
§ 45.
The Coordinator has the right, via e-mail, to move the delivery deadline of the given batch of
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Devices specified in the schedule to a later deadline by maximum of 90 days, however it
should notify the Contractor about moving the delivery deadline at least five Business Days
before the delivery deadline set forth in the schedule. The Contractor will not be entitled to
additional remuneration or indemnification by virtue of moving the delivery deadline.
§ 46.
The Devices will be delivered in the packagings ensuring safe transport and storage of the
Devices and making it possible for the Contracting Authority to carry out quantitative verification and readout of the identification code of the individual Devices directly from the Device without the need to unpack the Devices.
§ 47.
The Contractor is obligated to do the following on its own and at its expense:
1)
2)
§ 48.
deliver the Devices, including packagings, and load and transport the Devices to locations of delivery,
insure the Devices against theft, destruction or damage during transport, loading, unloading as well as from the moment they are issued to the Contracting Authority to the
moment when the ownership title to the Devices is transferred to it in accordance with
§ 48.
The ownership title to the Devices is transferred to the Contracting Authority at the moment
of signing the acceptance report for the given Device or their batches, in accordance with §
126. As of that moment, the benefits and burdens associated with the Devices are also transferred onto the Contracting Authority.
CHAPTER 6. ADDITIONAL OBLIGATIONS CONCERNING THE DEVICES
§ 49.
The Contractor will deliver the Devices with the relevant Documentation of Devices and together with the Software associated with the Devices (firmware) in the scope required for
usage of the Devices according to their functionality and intended manner of usage.
§ 50.
The scope of required Documentation of Devices is described in Appendix 3 to the Agreement
[List and Description of Deliverables].
§ 51.
If additional documentation not mentioned in Appendix 3 to the Agreement [List and Description of Deliverables] is needed for usage, installation, service and maintenance of Devices according to the purpose described in the Agreement, the Contractor will be also obligated
to deliver such additional documentation.
§ 52.
The Contractor represents that before concluding this Agreement it obtained information
necessary for performance of the Agreement and, additionally, it warrants that each Device
will meet the following conditions at the time of its handover to the Contracting Authority:
1)
it will be factory new, not used (except for tests, if any, necessary to verify its correct
operation) and free from any physical or legal defects;
2)
it will meet the technical and functional requirements described in the Agreement and
it will be compatible with the infrastructure of the AMI System;
3)
it will meet all the requirements imposed by the Polish regulations and Polish and European technical norms envisaged for such type of Devices, and in particular it will
have all the designations and seals required by law and it will be consistent with the
Certificates, it will comply with the regulations and norms concerning safety, protection
of life and health, natural environment, electromagnetic compatibility, and also the requirements resulting from decisions, recommendations and other acts of the Supervisory Authority;
4)
it will be approved for usage in Poland and European Union in the scope determined by
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its functionality and intended manner of usage by the Contracting Authority, and in
particular it will have all the required attestations and Certificates, including certificates consistent with the Act of 11 May 2001 entitled Law on Measures (consolidated
version in Journal of Laws of 2004, No. 243 item 2441, as amended), arrangements,
declarations, technical tests, in particular inspections, attestations, declarations and
warranty documents;
§ 53.
§ 54.
§ 55.
The Contractor warrants that the Devices:
1)
allow uninterrupted gathering and transmission of data in the AMI System;
2)
are modern devices which have potential for development, ensure satisfaction of the
Contracting Authority's needs resulting from the Agreement and guarantee fulfillment
of their function as a part of the AMI System;
3)
will cooperate with other elements of Metering Infrastructure, the Intermediating Infrastructure and the Central System; in particular, after their installation and launch in
accordance with § 59 they will operate in the manner enabling the transmission of data
between the Metering Infrastructure and the Central System via the Intermediating Infrastructure;
4)
ensure confidentiality and security of stored and transmitted data; transmission should
be encrypted with AES-128 algorithm;
5)
allow integration with other devices of Intermediating Infrastructure and other devices
of Zone C, in the scope defined by the Contracting Authority's requirements defined in
ToR.
The Contractor assures that at the moment of issuing the Devices to the Contracting Authority:
1)
it will have exclusive ownership title to the Devices free from any legal defects, encumbrances, rights or claims of third parties;
2)
no court, administrative or enforcement procedure will be pending with respect to any
of the Devices and there will be no grounds for launching such procedure;
3)
no limitation in disposal in favor of other entities will exist with regard to any of the
Devices, in particular no entity will have the contractual or statutory right of first purchase or priority acquisition right to the Device, and no Device will be the subject matter of repurchase right, tentative agreement or agreement obligating to transfer the
ownership title to the Device to another entity;
4)
none of the Devices will be the subject matter of rent, loan, usage, hire, leasing or any
other agreement of similar nature, and the Contractor will not have an obligation towards any entity to provide the Device to it on any legal grounds;
5)
none of the Devices will be the subject matter of pledge, in particular registered pledge
or treasury pledge, and there will be no grounds to institute such pledge;
6)
usage of Devices, Software associated with them and Documentation of Devices by the
entities from the Energa Group and other entities which the Contracting Authority will
provide with access to the Devices on any legal grounds will not breach any rights of
third parties, in particular such third parties' industrial property rights, proprietary
copyrights and individual copyrights, the company secret or personal interests;
Along with the delivery of Devices, the Contractor will do the following as part of Basic Remuneration:
1)
provide the Contracting Authority with any warranty cards or documents possessed by
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it, concerning Devices or elements of Devices manufactured by third parties, and
2)
provide to the Contracting Authority (e.g. through transfer of receivables or allowing to
conclude an agreement with the manufacturer), as part of remuneration and without
incurring additional fees, the rights resulting from service agreements for the aforementioned Devices or their elements concluded by the Contractor.
§ 56.
The terms and conditions of possible warranties/service agreements (contents of agreements), mentioned above, are included in Appendix 9 to the Agreement [Terms and conditions of warranty / Service Agreements for the Devices], which does not prejudice the Contractor's obligations to remove the Devices' Defects stipulated in the Agreement.
§ 57.
After the Contracting Authority finishes using the given Device or its element, the Contractor
will accept it from the Contracting Authority on its own expense and it will arrange, on its expense, the disposal of such Device (element) in the manner consistent with the currently prevailing regulations and it will incur all costs of such operation (including transport, loading,
unloading, disposal and obtaining the arrangements, opinions and decisions required by the
regulations) and fees related to the disposal. The foregoing obligation will be performed by
the Contractor as part of its basic remuneration and during the term of the Agreement, with
the reservation of the obligations exceeding that period which result from the binding provisions of law. The Contractor represents that it has legal, organizational and logistical capability to provide to the Contracting Authority the disposal of Devices after the end of their economic life, stipulated in the Agreement.
§ 58.
The Contractor will be obligated to cooperate with the Contracting Authority during tests of
telecommunication connections used for transmitting data between ZKB and the Central System e.g. through enabling the Contracting Authority to install additional software on ZKB
which is used for conducting such tests in such way so that its installation will not breach the
Contracting Authority's rights resulting from warranty.
CHAPTER 7. STARTUP OF DEVICES
§ 59.
The Parties resolve that installation of the Devices as part of the Metering Infrastructure performed for the purpose of their Startup:
1)
will be performed by the Contracting Authority or a third party which the Contracting
Authority will entrust with performance of such activities;
2)
will be carried out in accordance with the relevant assembly and startup technological
cards for individual types of Devices, supplied by the Contractor, under Contractor's
supervision and with its full consulting support;
3)
will be carried out by the persons holding Workshop Completion Certificates relevant
to the given types of Devices.
CHAPTER 8. WORKSHOPS
§ 60.
At the request submitted by the Contracting Authority's coordinator, the Contractor will be
obligated to conduct Workshops for the persons designated by the Contracting Authority
which will carry out installation and startup of Devices.
§ 61.
Each Workshop will be finalized with verification of knowledge acquired by the Workshop
participants and certification of participants by the Contractor (granting the Workshop Completion Certificates). The Workshop Completion Certificate will constitute the confirmation
that the given person has knowledge and skills necessary for installation and service of the
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Device.
§ 62.
Workshops will be carried out in tranches encompassing one or more Workshops; if the Contracting Authority intends to conduct the Workshops, it will send the relevant request to the
Contractor, stating:
1)
number and type of Workshops;
2)
number of people which are to participate in the Workshops (with the possibility of increasing the maximum number of participants as compared to the number specified in
Appendix 3 to the Agreement [List and Description of Deliverables] – after consultations between the Parties' coordinators);
3)
Workshop execution dates, of which the first one should fall no earlier than 10 Business
Days from sending the request concerning the organization of the Workshops.
The Parties' coordinators will precisely state the detailed scope and subjects of training and
agree upon the detailed contents of training materials no later than three Business Days before the individual Workshops are conducted.
§ 63.
The last of the requests to conduct the Workshops may be submitted no later than 15 Business Days prior to elapse of the term of the Agreement specified in § 232.
§ 64.
Total number of participants of all Workshops who will receive Workshop Completion Certificates during the entire term of the Agreement cannot exceed 700 (700 person-workshops
are planned). If there is a possibility that the execution of the Contracting Authority's request
referred to in § 62 results in exceeding the foregoing limit, the Contractor will be obligated to
immediately notify the Contracting Authority about that fact and it will ask for appropriate
correction of the request to conduct the Workshops.
§ 65.
Without prejudice to § 64, the Contractor is obligated to carry out the Workshops of type
specified by the Contracting Authority for the participants indicated by the Contracting Authority, on dates specified by the Contracting Authority or agreed upon by the Parties.
§ 66.
The Contracting Authority's coordinators have the right to participate in any Workshops
without obligation to notify the Contractor ahead of time about such participation, and the
Contractor is obligated to provide such persons with an opportunity to participate in the
Workshops upon their request; these persons will not be certified if they are not entered in
the list of participants referred to in § 62 and the costs of accommodation and catering of
such persons will be incurred by the Contracting Authority.
§ 67.
Detailed requirements concerning the Workshops may be found in Appendix 3 to the Agreement [List and Description of Deliverables].
CHAPTER 9. CONTRACTOR'S SUBCONTRACTORS AND STAFF
§ 68.
The Contractor represents that it has the adequate staff, materials and tools allowing the execution of the entire subject matter of the Agreement.
§ 69.
During the performance of the Agreement, the Contractor may use the services of third parties listed in Appendix 10 to the Agreement [Subcontractors] as well as its subcontractors – in
the scope defined therein. Using the services of other subcontractor or exceeding the scope of
subcontractorship stipulated in the Agreement requires prior consent of the Contracting Authority's leading coordinator.
§ 70.
In each case in which the subcontractor’s services are used, the Contractor shall be fully liable
for subcontractor's performance of obligations as for its own actions or omissions.
§ 71.
When using the services of a subcontractor, the Contractor will impose on such subcontractor
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an obligation to comply with all the principles, rules and obligations set forth in the Agreement, to the extent they apply to the scope of work performed by the subcontractor, while
remaining a guarantor of their performance and compliance by the subcontractor.
§ 72.
For the purposes of the Agreement, the natural persons working for the Contractor on the
basis of mandate agreements or work product agreements, also on the basis of business activity conducted by them (individual business activity or civil partnership) are not considered
to be subcontractors, provided that they carry out all the tasks entrusted to them by the Contractor on their own.
§ 73.
The Contractor guarantees that all the members of Contractor's Staff performing the Agreement on the Contractor's behalf will have the skills and experience appropriate for the scope
of the tasks entrusted to such persons.
§ 74.
The Contractor warrants that:
1)
the persons specified in Appendix 5 to the Agreement [Contractor's Bid] will comprise
the Contractor's Staff and will be seconded to the performance of the Agreement;
2)
Workshops will be conducted by the Contractor's Staff (trainers) holding technical education and professional experience related to the subject matter of the individual
Workshops as well as teaching skills and experience in conducting Workshops, and
they will be authorized to issue Certificates on the Contractor's behalf.
§ 75.
The leading coordinator has the right to demand from the Contractor the involvement of the
specific member of the Contractor's Staff in the performance of individual work under the
Agreement.
§ 76.
The leading coordinator has the right to put forward to the Contractor a justified request to
dismiss the specified member of the Contractor's Staff from the performance of the Agreement. Such person will be dismissed from the performance of the Agreement within two
Business Days from the Contractor's receipt of the request, and if the request is justified by
probable suspicion of breach of law or terms and conditions of the Agreement, in particular
principles of confidentiality, the dismissal will take place immediately.
§ 77.
In the situations defined in § 76, the Contractor will immediately notify the leading coordinator about designation of a new member of the Contractor's Staff whose skills and experience
are not lower than his/her predecessor's. The leading coordinator has the right to submit a
justified objection against such new member of the Contractor's Staff within three Business
Days. Submitting such an objection will mean that the Contractor will be obligated to remove
such person from the Contractor's Staff and immediately present the new member of the Contractor's Staff. In such situation, the procedure will be repeated and the rules described above
will apply accordingly. Failure to send to the Contractor the notification on the objection by
the foregoing deadline will be equivalent to acceptance of the new member of the Contractor's Staff.
§ 78.
The Contractor covenants to present, at coordinator's each request, the documents confirming the experience and references of the individual members of the Contractor's Staff within
two Business Days from receipt of such request.
§ 79.
For the avoidance of doubt the Parties determine that in each instance of change of the member of the Contractor's Staff during the performance of the Agreement, the costs, if any, of
training the new member of the Contractor's Staff will be incurred exclusively by the Contractor. Change of individual persons comprising the Contractor's Staff will not cause a change in
the amount of the Contractor's remuneration due to it on account of performance of the
Agreement, nor will it affect the deadlines for the performance of individual tasks.
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CHAPTER 10.
CONTRACTING AUTHORITY'S COOPERATION
§ 80.
The Contracting Authority is aware of the fact that the performance of the Agreement requires its cooperation with the Contractor. The Contracting Authority will ensure its cooperation in the scope in which it is necessary for the Contractor to perform the subject matter of
the Agreement and in which the Contractor is unable to obtain the subject matter of the Contracting Authority's cooperation in other way.
§ 81.
The Contracting Authority's cooperation will pertain only to such actions which may be performed by the Contracting Authority without special difficulties e.g. as part of cooperation,
the Contracting Authority will deliver only such information and materials concerning the
Area of Installation which are in its possession and it will not be obligated to prepare or acquire the information it does not have.
§ 82.
The scope of the Contracting Authority's cooperation is defined in § 84 of this Agreement,
where if the given action is not explicitly specified in the Agreement as the Contracting Authority's obligation, it will be understood that such action constitutes the Contractor's obligation.
§ 83.
In performing the Agreement, the Contracting Authority is obligated to do the following:
1)
provide the Contractor with its industrial knowledge to the extent necessary for the
performance of the Agreement;
2)
make decisions about directions for and detailed conditions of performance of specified
work;
3)
cooperate with the Contractor in drafting the assumptions for the introduced changes;
4)
cooperate with the Contractor in making arrangements and in accepting the assumptions for execution presented by the Contractor;
5)
perform acceptances in accordance with the Agreement, for the purpose of ensuring
that Deliverables are tested by properly qualified and experienced members of the Contractor's Staff;
6)
provide to the Contractor, in the scope required for the performance of the Agreement,
with access to necessary infrastructure and software of third parties i.e. the Contracting
Authority will provide the carriers and information necessary for installation, configuration and operation of hardware and software needed for installation of the Testing
and Diagnostic Software provided as part of the Agreement;
7)
provide the Contractor's employees performing the Agreement with access to the Contracting Authority's resources, in the scope necessary to the performance of the
Agreement;
8)
second the persons designated by itself to participate in Workshops carried out on the
basis of the Agreement.
§ 84.
Before taking advantage of the rights resulting from quality warranty or startup warranty
(notifying the Contractor about the Defect), the Contracting Authority will obligatorily conduct the procedure of verification of reasons for the Defect, according to Appendix 14 to the
Agreement [Defect Verification Procedure].
§ 85.
Change, more detailed definition or broadening of the scope of cooperation required from the
Contracting Authority may take place on the basis of the coordinators' arrangements made in
writing under the pain of invalidity.
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CHAPTER 11.
ORGANIZATIONAL STRUCTURE AND MANAGEMENT OF THE PERFORMANCE OF THE AGREEMENT
§ 86.
The Contractor is liable for proper oversight, management and coordination of the activities
carried out as part of the performance of the Agreement, for the purpose of ensuring the required quality and timely performance of its obligations.
§ 87.
In order to ensure the appropriate cooperation between the Parties and coordination of their
activities as far as the performance of the Agreement is concerned, each of the Parties will
appoint the following coordinators:
1)
on the side of the Contractor – the coordinator;
2)
on the side of the Contracting Authority – the leading coordinator, one or several
branch coordinators and the executive coordinator.
§ 88.
Details of coordinators (first and last name, contact details) may be found in Appendix 7 to
the Agreement [Coordinators and Contact Details].
§ 89.
All the Contractor's Coordinators are authorized to do the following:
1)
sign the acceptance reports (except for executive coordinator's acceptance of the Deliverables described in § 30);
2)
make insignificant changes to the Agreement in the scope described in § 96;
3)
represent the Contractor in the cases specified in the Agreement;
4)
make ongoing executive arrangements on the Contractor's behalf with the Contracting
Authority's representatives in the scope which does not make it necessary to change
the Agreement.
If the Agreement indicates the given coordinator's competences, only him/her will be authorized to perform such action. If the Agreement indicates the coordinator's general competences without specifying his/her function, such action may be performed by any of the coordinators.
§ 90.
Each of Parties is authorized to change the coordinator designated by it permanently or temporarily e.g. for the duration of holiday leave. Change of coordinator is effective with regard
to the other Party upon delivering to the other Party a written notification about that change.
At the same time, the Party which changes a coordinator is obligated to send to the other Party the information regarding the new person appointed permanently or temporarily for discharging the functions of the coordinator along with the phone and address assigned to the
new coordinator. Change of coordinator does not require an annex to the Agreement.
§ 91.
Designation by the Party of a new coordinator is equivalent to dismissal of the previous coordinator and suspension of his/her power-of-attorney to act on the Party's behalf, and simultaneous granting to the new coordinator of permanent or temporary power-of-attorney in
the scope in which it was granted to the previous coordinator.
CHAPTER 12.
§ 92.
CHANGE CONTROL PROCEDURE
Change of the Agreement is permitted in the scope and on terms and conditions of the Act
entitled Public Procurement Law, in particular in the following cases:
1)
a change (of the Agreement) involving changing the description of Deliverables which
are to be supplied by the Contractor on the basis of the Agreement if such change results from development of a new technology, provision of new software versions, development of open communication protocol (including changes to or development of
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logical progress, including introduction by the Contractor or a third party of new versions of Hardware or Software;
2)
the need to supply the Deliverables other than specified in the Agreement, in particular
the Devices, as a result of discontinuation of production of Deliverables specified in the
Agreement or their withdrawal from production or distribution in Poland;
3)
introduction by the hardware manufacturer or the Contractor of a new product, hardware, device or service corresponding to the Deliverable, hardware, device or service
covered by the subject matter of the Agreement, or making changes (updates, patches,
etc.);
4)
change of persons named in the Agreement and designated by the Parties to the
Agreement for its performance;
5)
change of law published in the Official Journal of the European Union, the Journal of
Laws, the Polish Monitor or the Official Journal of the relevant minister, and decisions,
directives and recommendations of Supervisory Entities;
6)
change of Polish or European technical norms concerning the Devices;
7)
the need to stop, suspend or limit the scope of work while waiting for changes to be
made to the legal regulations, in the situation where the amendments to the regulations
are pending;
8)
the need to change the manner of performing the Agreement justified by technical or
functional reasons;
9)
drafting, in accordance with the procedures set forth in the Agreement, of the document containing detailed rules for performance of the Agreement;
10)
needs for changing the delivery dates of the Devices or performing other services, as a
result of operational specificity of the Contracting Authority;
11)
changes in the manner of performance of the Agreement attributable to changes related to powers and authorizations entrusted to the Contracting Authority;
12)
necessity to make changes to the scope of the Agreement as a result of lack of funds on
the part of the Contracting Authority as a result of a situation which occurred after concluding the Agreement, preventing it from financing the performance of the Agreement
according to initially defined terms and conditions;
13)
necessity to change the date of performance or Acceptance resulting from the Contracting Authority's decision to have a third party conduct inspection of quality and the
manner of conducting work (Quality Control);
14)
changes to the Contracting Authority's structure and organization affecting the scope
and deadlines of the Contractor's work or the Acceptance date;
15)
disclosure of the commonly occurring defects of the offered Deliverable;
16)
imposition of embargo on imports or exports of specified Deliverables or software
which were to be delivered under the Agreement;
17)
delays in other projects which prevent the performance of the Agreement in accordance with the initially defined Schedule or cause that the performance of the Agreement in accordance with the initially defined Schedule is irrational from technical, organizational or financial standpoint;
18)
disclosure in the course of the audit referred to in § 20-§ 29 of the circumstances which
may threaten the ICT security of the AMI System or individual elements of the Metering
Infrastructure or the Intermediating Infrastructure;
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19)
occurrence of force majeure.
§ 93.
Changes to the Agreement may be significant or insignificant, according to Art. 144 of the Act
of 29 January 2004 entitled Public Procurement Law (consolidated version in Journal of Laws
of 2010, No. 113 item 759, as amended), hereinafter referred to as "PPL".
§ 94.
Significant changes include in particular the changes which:
§ 95.
§ 96.
1)
have the characteristics which significantly deviate from the provisions of the original
Agreement and, accordingly, they may indicate the Parties' willingness to renegotiate
the basic arrangements of that procurement order;
2)
introduce the conditions which if they were included in the original procedure for
granting the procurement order, they would allow the possibility of admitting other
Contractors than the ones which had been originally admitted or they would allow the
possibility of submitting a proposal other than the one which had been originally admitted;
3)
significantly broaden the procurement order to include the services which were not
originally included in it;
4)
change the economic balance of the Agreement in the Contractor's favor in the manner
which was not foreseen by the provisions of the original procurement order.
Significant changes include in particular the following:
1)
consent to change the schedule, with the reservation of the following provisions;
2)
change of remuneration;
3)
broadening the scope of the Contractor's work to the extent not covered by the provisions of the Act entitled Public Procurement Law.
Insignificant changes include changes other than described in § 94 and §96, in particular:
1)
change of schedule (delivery deadline) in the scope described in § 45;
2)
change in description of Deliverables without changing their nature and the subject
matter of the Agreement.
§ 97.
All the changes, whether significant or insignificant, will be documented under the change
control procedure. The change control procedure is launched through a coordinator of one
Party sending to the coordinator of the other Party the request to make a change (in the
change control procedure, the Contracting Authority is represented by the leading coordinator). The request to make a change will be prepared in the electronic form in case of insignificant changes and – in case of significant changes – in writing under the pain of invalidity and
simultaneously in the electronic form.
§ 98.
If a request to make a significant change is submitted:
§ 99.
1)
by the Contracting Authority – the Contractor will prepare, within 5 (five) Business
Days from receipt of the request, the project assumptions concerning the performance
of the requested change;
2)
by the Contractor – the Contractor will submit along with such request the project assumptions concerning the performance of the requested change.
The project assumptions for a significant change should present all the aspects of the change
with respect to the scope as well as manner and conditions of performance of the Agreement,
in particular – relevantly to the given type of change – the description of additional work with
the proposed Acceptance criteria, impact of the change on the schedule and the functioning of
the Metering Infrastructure, scope of cooperation and other factors which may be important
to the Contracting Authority when making a decision to make a change.
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§ 100.
In response to the request to make a significant change submitted by the Contracting Authority or along with the request to make such change submitted by the Contractor, the Contractor
will immediately submit to the Contracting Authority the information on the need or justification for receiving the benefits under the Agreement (e.g. supplies of Deliverables) for the duration of further work on the proposed change. The Contractor is obligated to perform the
Agreement, including deliveries of Deliverables according to the schedule, unless the Contracting Authority notifies the Contractor that it made a decision to stop the work. The decision to stop the provision of services, in particular deliveries of Devices, will be made by the
Contracting Authority's coordinator.
§ 101.
The provisions of items from § 98 to § 100 apply accordingly to insignificant change provided
that the Contracting Authority's leading coordinator reports such need. In other cases, the
Parties' coordinators will determine the scope of insignificant change.
§ 102.
All the agreed upon changes should be made in writing. Significant changes will be recorded
as subsequent written annexes to the Agreement.
CHAPTER 13.
ACCEPTANCE PROCEDURES
§ 103.
In the course of performance of the Agreement, the acceptances of Deliverables specified in
Appendix 3 to the Agreement [List and Description of Deliverables] will be carried out, along
with acceptance of Repairs (performed on the principles defined in Chapter 18 of the Agreement).
§ 104.
If the subject matter of acceptance is ascertained to be performed correctly, the Contracting
Authority will perform the acceptance and sign the relevant acceptance report in two copies
in writing under the pain of invalidity. Signing the acceptance report does not prevent the
Contracting Authority form submitting on a later date the reservations to consistency with
the Agreement or the correctness of performance of the subject matter of acceptance.
§ 105.
The relevant acceptance report signed by the Contracting Authority constitutes the basis for
issuing the VAT invoice for the adequate amount of remuneration, the obligation of the payment of which by the Contracting Authority has been tied with the performance of the given
acceptance.
§ 106.
The acceptance involves verification whether the subject matter of acceptance meets the requirements set forth in the Agreement (acceptance criteria), taking into account more detailed requirements, if any, determined in the Agreement or in the course of the Parties' cooperation.
§ 107.
Acceptance is performed by the Contracting Authority's coordinator or other person individually authorized by the Contracting Authority to perform the acceptance. Regardless of any
other provisions of the Agreement or arrangements made between the Parties, the Contracting Authority has the right to verify proper performance of the Agreement using any method,
including also using an external auditor's opinion. In particular, the Contracting Authority has
the right to conduct own tests of delivered Deliverables according to Deliverable verification
methods accepted by it.
§ 108.
Upon Contracting Authority's acceptance of the Deliverable constituting an item or whose
components are items, the Contractor covenants to transfer and it transfers onto the Contracting Authority the ownership title to all the items comprising the given Deliverable.
§ 109.
The date of acceptance is the acceptance date specified in the acceptance report. Performance
of acceptance does not prevent the Contracting Authority from taking advantage of the rights
vested in it by the power of law and the Agreement in case of inadequate performance of the
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Agreement, and in particular from exercising the right to accrue contractual penalties, pursue
damages and withdraw from the Agreement.
§ 110.
The subsequent acceptance procedure does not in any way stop or move the deadlines for
delivery of individual Deliverables, stipulated in the Agreement, or prejudice the Contractor's
liability on account of failure to meet those deadlines.
§ 111.
The provisions of § 106 and § 107 do not apply to Acceptance of Workshops.
CHAPTER 14.
§ 112.
ACCEPTANCE OF MOCK-UP, TESTING AND DIAGNOSTIC SOFTWARE, TEST
SCENARIOS AND DOCUMENTATIONS OF DEVICES
By the deadline specified in the schedule, the Contractor is obligated to deliver to the Contracting Authority and report to it the readiness for acceptance of the following Deliverables:
1)
Mock-Up with Testing and Diagnostic Software for the Mock-Up and Test Scenarios,
2)
Documentation of Devices.
§ 113.
The acceptance of Deliverables specified in § 112 will be carried out by the Contracting Authority jointly within 10 weeks from their delivery deadline. During acceptance, the Contracting Authority will verify the Deliverables and it may report to the Contractor the reservations,
and the Contractor will be obligated, upon Contracting Authority's request, to participate in
the activities related to verification, immediately take into account the reservations and submit the Deliverables to the Contracting Authority for new verification. After completion of activities related to acceptance, the Contracting Authority will carry out acceptance, conditional
acceptance or it will refuse acceptance.
§ 114.
The acceptance of Deliverables specified in § 112 will consist in verification of the following:
§ 115.
1)
in case of Testing and Diagnostic Software – correct functioning of the Testing and Diagnostic Software in the manner consistent with the Agreement, and fulfillment by the
Testing and Diagnostic Software of the functional requirements described in Appendix
3 to the Agreement [List and Description of Deliverables];
2)
in case of Test Scenarios – formal and substantive correctness, consistency with the
substantive and formal requirements stipulated in the Agreement, and also fulfillment
by the Test Scenarios of the basic purpose of this documentation which is to propose
the actions which will make it possible to reliably and comprehensively verify the consistency of the Devices delivered as part of the Mock-up with the requirements of the
Agreement, in particular with regard to functionalities required from the individual
types of Devices and compatibility of such Devices with infrastructure of Zone C;
3)
in case of Documentation of Devices – completeness, formal correctness and consistency of the Documentation with the Agreement;
4)
in case of Mock-up – correct functioning of the Mock-up in the manner consistent with
the Agreement, and fulfillment by the Mock-up of the functional requirements described in Appendix 3 to the Agreement [List and Description of Deliverables], including Mock-up's fulfillment of the requirements of the sample delivered to the Contracting Authority with the Bid;
In case of non-fulfillment of acceptance criteria by any of the Deliverables specified in § 112,
the Contracting Authority will submit to the Contractor the list of ascertained shortcomings
or irregularities preventing the performance of acceptance of Deliverables, and the Contractor will immediately remove such shortcomings or irregularities and it will once again present to the Contracting Authority the set of Deliverables specified in § 112 for acceptance.
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§ 116.
The acceptance procedure will be repeated until:
1)
the Contracting Authority performs the acceptance of Deliverables specified in § 112;
2)
the Contracting Authority performs the conditional acceptance of Deliverables specified in item § 112 on the principles defined in § 118 – § 121 or
3)
the Contracting Authority exercises the right to withdraw from the Agreement in accordance with the prevailing law or in accordance with § 236.
§ 117.
The subsequent procedure of acceptance of Deliverables specified in § 112 stops the performance of deliveries of Devices until acceptance (the Contracting Authority has the right to refuse to accept the delivery and perform the acceptance of Devices), which, however, does not
release the Contractor from liability for failure to keep the Agreement performance deadlines,
including deadlines for deliveries of Devices set forth in the Agreement.
§ 118.
The Contracting Authority, despite non-fulfillment of the acceptance criteria set forth in the
Agreement by the Deliverables specified in § 112, may perform conditional acceptance of
such Deliverables and set for the Contractor an appropriate deadline, not shorter than 10
Business Days, to remove the shortcomings or irregularities ascertained in the course of acceptance procedures and specified in the conditional acceptance report which prevent the acceptance of such Deliverables.
§ 119.
The Contractor is obligated to remove the shortcomings or irregularities specified in the conditional acceptance report by the deadline specified by the Contracting Authority and submit
the Deliverables for the next acceptance by the Contracting Authority on the principles set
forth in the foregoing provisions § 1125 - § 116.
§ 120.
Performance of conditional acceptance enables the Contractor to start the process of obtaining the Certificates for Devices.
§ 121.
Change of schedule referred to in § 120 does not require preparation of a written annex to
the Agreement and it may be performed by the leading coordinator in writing under the pain
of invalidity through sending to the Contractor's coordinator, along with the report confirming the performance of the conditional acceptance, a relevant document containing the description of change to the schedule.
§ 122.
If the Contracting Authority ascertains correct execution of the Mock-up with the Testing and
Diagnostic Software of the Mock-up, Testing Scenarios and Documentation of Devices, the
Contracting Authority will sign the acceptance report for the aforementioned Deliverables.
§ 123.
After acceptance of the Mock-up with the Testing and Diagnostic Software of the Mock-up,
Testing Scenarios and Documentation of Devices, the Contractor will begin the process of obtaining the required Certificates and, after obtaining them, it will submit them to the Contracting Authority for acceptance. Acceptance of Certificates will consist in verification of
consistency of the Certificates and their contents with the requirements of the Agreement
and the law. Provisions of § 115 and next apply accordingly. After acceptance of Certificates,
the Contractor will begin the process of delivering the Devices.
CHAPTER 15.
ACCEPTANCE OF DEVICES
§ 124.
Acceptance of the batch of Devices will consist in verification of compliance with the Agreement of the number of Devices delivered by the Contractor as part of the given batch, and verification whether the packagings have not been breached.
§ 125.
As part of acceptance, the Contracting Authority is also authorized to verify the quality of
Devices, including checking the operation of Devices, however not conducting such activities
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or not reporting the reservations by the Contracting Authority in the process of accepting the
Devices cannot be understood as confirmation that Devices are free of defects or that the
Agreement has been performed correctly and it does not in any way limit the possibility of
reporting reservations or Defects during Final Verification or the Warranty Term, and it also
does not affect the sanctions stipulated in the Agreement in case of occurrence of premises,
specified in the Agreement, for negative outcome of the Final Verification.
§ 126.
Acceptance of Devices is conducted at the delivery site immediately after delivery of the given
batch.
§ 127.
The Contracting Authority will ensure the presence at the delivery site of the person authorized to perform acceptance of the Devices, including signing the acceptance report.
CHAPTER 16.
§ 128.
§ 129.
ACCEPTANCE OF WORKSHOPS
After conducting all the Workshops mentioned in the request referred to in § 62, the Contractor will send the following to the Contracting Authority for the purpose of performing their
acceptance:
1)
number of participants of the individual Workshops and Workshop Completion Certificates (with their numbers) obtained by the individual participants;
2)
Workshop Completion Certificates of Workshop participants.
Acceptance of Workshops will take place through verification by the Contracting Authority of
the attendance list of participants, the list of issued Certificates and the Workshop Completion Certificates themselves, from the standpoint of their consistency with the Agreement as
well as completeness and adequate formal and substantive quality of the Workshops; the
Contracting Authority will conduct acceptance of Workshops within 10 Business Days from
the date on which the Contractor provides the materials mentioned in § 128.
CHAPTER 17.
WARRANTY FOR THE DEVICES' COMMUNICATION WITH THE CENTRAL
SYSTEM. FINAL VERIFICATION. PARTIAL VERIFICATION.
§ 130.
The Contractor warrants that the supplied Devices, after their installation in the Area of Installation, will allow communication with the Central System via the Intermediating Infrastructure, according to § 53 item 3) and § 53 item 5), through fulfillment of communication
criteria specified in Appendix 11 to the Agreement [Final Verification Criteria].
§ 131.
The Contracting Authority will perform qualitative verification of Devices installed in the
Area of Installation in the scope and on the principles described by the following provisions.
§ 132.
On the date specified by the Contracting Authority, however no later than within six months
from the date of Acceptance of all batches of delivered Devices, the Contracting Authority will
conduct Final Verification of Metering Devices.
§ 133.
The purpose of Final Verification is to finally check whether the Devices installed in the Area
of Installation have the characteristics referred to in § 130.
§ 134.
The Contracting Authority will notify the Contractor about the determined date of Final Verification at least 60 days in advance.
§ 135.
At any moment during the performance of the Agreement, however no earlier than after installation of 200 Metering Devices, the Contracting Authority will have the right to conduct
one or more partial verifications to check whether the Devices already installed in the Area of
Installation meet the communication criteria specified in Appendix 11 to the Agreement [Final Verification Criteria] – Partial Verification. Partial Verification of the Metering Devices
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connected to the individual ZKBs will be carried out only after completion of installation of all
Metering Devices whose installation is planned around the given ZKB.
§ 136.
The Contracting Authority will confirm the result of Partial Verification in the written representation sent to the Contractor in which it will specify the Devices not fulfilling the criteria
set forth in Appendix 11 to the Agreement [Final Verification Criteria].
§ 137.
If the result of Partial Verification shows that at least 10% of the Devices covered by the
scope of Partial Verification does not meet the criteria defined in Appendix 11 to the Agreement [Final Verification Criteria] at the moment of starting that Partial Verification (unless
non-fulfillment of the criteria results entirely or in part from the reasons attributable to the
Contracting Authority or force majeure), the result of Partial Verification will be considered
negative and the Contracting Authority, regardless of possible other rights stipulated in the
Agreement or resulting from the provisions of law, will be authorized to stop the performance of subsequent acceptances of Devices (batches) until these criteria are met by at least
[95]% of Devices covered by the scope of Partial Verification.
§ 138.
Final Verification or – respectively – Partial Verification will cover the Devices indicated by
the Contracting Authority installed in the Area of Installation (or – respectively for Partial
Verification – in the specified area) for which the Contracting Authority ensured communication between the Central System and ZKB.
§ 139.
If Partial Verification is conducted, the Contracting Authority will send to the Contractor,
along with information on the date of Final Verification, also the information on the Devices
with respect to which it was determined in the course of the most recent Partial Verification
that they ran the risk of non-fulfillment of the criteria set forth in Appendix 11 to the Agreement [Final Verification Criteria]. In such case, the Contractor is obligated to do the following:
1)
present, within 10 days from receipt of the Contracting Authority's representation, the
plan of actions which are to lead to fulfillment of the criteria specified in Appendix 11
to the Agreement [Final Verification Criteria] and the proposed dates of providing access to the installation sites of the individual Devices, provided that this will be necessary for performance of the obligations set forth in sub-item 2).
2)
take actions to ensure that the Devices with respect to which it was determined that
they ran the risk of non-fulfillment of the criteria set forth in Appendix 11 to the
Agreement [Final Verification Criteria], will meet these criteria during the Final Verification. These activities should be carried out before the date of commencing the Final
Verification.
§ 140.
Within 10 days from sending to the Contracting Authority the proposals referred to in § 139
sub-item 1), the Contracting Authority will confirm the deadlines stipulated therein or propose its own. The deadlines proposed by the Contracting Authority will become binding upon
for the Contractor on the condition that they will be set with tolerance of up to 10 days as
compared to the deadline proposed by the Contractor and they should fall before the date of
commencing the Final Verification designated by the Contracting Authority.
§ 141.
The Contracting Authority will confirm the result of Final Verification in writing and it will
specify the Devices not fulfilling the criteria set forth in Appendix 11 to the Agreement. If the
W ratio, defined in accordance with Appendix 11 to the Agreement, is:
1)
greater or equal to [98%], the result of Final Verification will be considered positive;
2)
greater than [95%] and smaller than [98%], the result of Final Verification will be considered negative, and the Contractor will be obligated to pay contractual penalty referred to in § 221 item 1);
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3)
smaller than [95%], the result of Final Verification will be considered negative, and the
Contractor will be obligated to pay contractual penalty referred to in § 221 item 2);
§ 142.
Final Verification does not stop nor does it affect the scope or deadlines for performance of
the Contractor's obligations specified in other provisions of the Agreement, including with
regard to performance of warranty or service obligations, and it also does not affect the Contractor's liability resulting from inadequate performance of the Agreement, including failure
to meet the deadlines for performance of individual obligations mentioned in the Agreement.
§ 143.
Final Verification is performed by the Contracting Authority once.
CHAPTER 18.
§ 144.
WARRANTY FOR DEFECTS OF DELIVERABLES
The Contractor warrants that the Deliverables will be free from physical defects and that they
will meet all the functional, substantive and qualitative requirements set forth in the Agreement, as well as those resulting from the provisions of law and technical norms; the Contractor warrants in particular that:
1)
the Devices will function in the manner consistent with the Agreement and the Documentation of Devices delivered to the Contracting Authority;
2)
the Testing and Diagnostic Software will operate in a correct manner, without interruptions and defects, according to its intended manner of use and assumed functionality,
and it will meet non-functional parameters (including technical parameters) specified
in the Agreement or the relevant documentation;
3)
the Documentation of Devices will be free from physical and legal defects and it will be
complete and correct from formal and substantive standpoint, and it will be prepared
according to the best, most up-to-date industry standards;
§ 145.
The Contractor warrants that the Deliverables delivered to the Contracting Authority will be
free from legal defects, in particular, usage of Testing and Diagnostic Software or other Contractor's Proprietary Elements according to their intended manner of use and the Agreement
will not result in breach of any rights, including copyrights of third parties.
§ 146.
As part of Remuneration, the Contractor hereby grants quality warranty for the Deliverables
and it is obligated to provide warranty services on the principles described in the Agreement
and in accordance with the prevailing laws.
§ 147.
The Term of Warranty is:
1)
for Deliverables other than specified in item 2) – …… (in words: ……) and it runs from
the final acceptance date of the given Deliverable.
2)
for Devices, Testing and Diagnostic Software and Documentation of Devices – …… (in
words: ……) and it runs from the final acceptance date of the individual Devices (Basic
Term of Warranty).
§ 148.
If the Product Defect referred to in § 145 is discovered, the Contracting Authority will submit
the Notification and it will send the Deliverable affected by the Defect to the Contractor. The
Notification will be sent in writing or via e-mail to the contact addresses specified below.
Making a relevant annotation on the bill of lading of the Deliverable's shipment to the Contractor will be considered equivalent to submitting the Notification.
§ 149.
The Notification will have the information about the Defect possessed by the Contracting Authority, which is necessary for making the service response, in particular the description of
the Defect.
§ 150.
The Contractor will accept the Notifications submitted in the following way:
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1)
via traditional mail or courier mail – to the following address: [●]
2)
via e-mail – to the following address: [●]
3)
in other way agreed upon by the Parties during the performance of the Agreement.
§ 151.
Contact details contained in § 150 may be changed by the Party to which they pertain on the
condition that the other Party is notified about that fact. The foregoing information will be
exchanged between the Parties' coordinators at least two weeks before the planned change.
§ 152.
If the Contractor receives the Notification or if the Contractor finds out about the occurrence
of the Defect from a source different than the Notification, the Contractor will be obligated to
take actions aiming at removing the Defect. The Contractor is obligated to inform the Contracting Authority about taking the remedial actions.
§ 153.
If, in the Contracting Authority's opinion, there occurs a significant Defect of the Deliverable
or there once again occurs the Defect of the Deliverable (i.e. the second Defect of the same Deliverable, regardless of the nature of such Defect), the Contracting Authority will have the
right to demand that the Repair be performed through replacement of the entire Deliverable
with the new one which is free from Defects, regardless of any possibilities to perform the
Repair in a different way.
§ 154.
In the event of occurrence of a Defect involving more than [5]% of Devices of the given type
as part of the given batch of deliveries, the Contracting Authority will have the right to demand replacement of all the Devices of the given type included in the given batch of deliveries
with the new ones which are free from Defects. If such right is exercised, the Contractor will
be obligated to once again deliver all the Devices of the given type as part of the given batch
of deliveries to the location indicated by the Contracting Authority by the deadline agreed
upon between the Parties no longer than 30 days, and to collect the defective batch. In addition, in such case the Contracting Authority will have the right to refuse the acceptance of the
subsequent batches of deliveries (or their parts) until all the Devices of the given type included in the given batch of deliveries are replaced with the new ones which are free from Defects.
§ 155.
Before sending the notification about the Defect of the Device, the Contracting Authority will
perform the procedure of verifying the reason for the Defect described in Appendix 14 [Defect Verification Procedure].
§ 156.
The Contractor is obligated to perform the Repair of the Deliverable by the following Repair
Deadlines:
1)
In case of Defects of Devices – 30 days from the receipt of the Device affected by Defect.
2)
In case of Defects of Deliverables other than the Devices – 14 days from the receipt of
the Notification of Defect.
§ 157.
If the Contractor replaces the Device, as part of the process of Repairing the Device, with the
new one which is free from Defects, the Contractor will be obligated to send to the Contracting Authority the relevant documents allowing to prepare the liquidation report for accounting purposes and to correctly reflect the replacement in the Contracting Authority's ledgers.
§ 158.
Repairs involving the change of the Devices' communication protocols require each time prior consent of the Contracting Authority. If the Contractor as part of the Repair process modifies the Device's communication protocols, the Contractor will be obligated to send to the
Contracting Authority the adequately modified Documentation of Devices, including Documentation of Interfaces, reflecting all the changes made to communication protocols as part
of the Repair. In such case, the provisions concerning the acceptance of Documentation of Devices will apply accordingly.
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§ 159.
If the Contractor determines that incorrect operation of the Device mentioned in the Notification is not caused by the Defect but the circumstances attributable exclusively to the Contracting Authority, in particular incorrect functioning of the Intermediating Infrastructure, or
Force Majeure, the Contractor will be obligated to:
1)
indicate the cause of incorrect functioning of the Device through specifying the reason
(e.g. other element of the Data Transmission Network or irregularities in usage) and, if
possible, also the entity responsible for removing such irregularity in the Device's operation,
2)
if the Contracting Authority requests so – provide support of the third party which will
remove the reason for the Notification, including providing such person with any information about the Device which may be necessary to restore its full functionality.
§ 160.
If after carrying out the procedure referred to in § 155 the Contracting Authority does not
determine other reason for the Defect, it will be presumed that the reason for the Defect is in
the Device and the Contractor will be obligated to remove the Defect as part of warranty. The
burden to prove otherwise rests with the Contractor.
§ 161.
The Contractor is responsible and incurs all the costs of disposal and transportation of Devices performed as part of its warranty obligations.
§ 162.
If the Contractor determines in the course of performance of repairs that the Contracting Authority has to perform additional tasks in order for the Repair to be carried out (in particular,
tasks requiring proper administrative authorizations, consents to enter the premises in
which the Devices were installed, etc.) which the Contractor is unable to perform without
Contracting Authority's participation, the Contractor will immediately ask the Contracting
Authority to take the relevant actions. The foregoing activities cannot result in emergence of
additional costs on the part of the Contracting Authority.
§ 163.
After performing the Repair, the Contractor will submit it for acceptance in accordance with
the following provisions.
§ 164.
The additional conditions for carrying out the Acceptance of the Repair by the Contracting
Authority are as follows:
1)
in the case referred to in § 157 – sending to the Contracting Authority the documents
mentioned in that paragraph;
2)
in the case referred to in § 158 – sending to the Contracting Authority the updated version of Documentation of Devices.
§ 165.
After the performance of the Repair is verified and after the additional conditions referred to
in § 164 are met, the Contracting Authority will immediately confirm the performance of the
Repair or refuse to confirm the performance of the Repair.
§ 166.
The Repair which the Contracting Authority refused to accept will last continuously until it is
effectively performed (the foregoing tasks do not hold the course of the Repair Time).
§ 167.
Lack of the Contracting Authority's representation as to the performance or refusal to perform the acceptance of the Repair within 30 days from reporting the Repair for acceptance is
equivalent to execution of acceptance of the Repair by the Contracting Authority ("tacit" acceptance of the Repair).
§ 168.
The Contracting Authority confirms the performance of the Repair through sending the Repair acceptance report signed by the executive coordinator. The Repair will be considered to
be performed as at the moment of:
1)
submitting the Repair for acceptance, according to § 163, if the Defect has been removed and any possible additional conditions referred to in § 164 have been met;
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2)
confirmation of performance of the Repair (acceptance of the Repair) in other cases
specified in § 167.
§ 169.
The Contractor is obligated to keep open and closed records of Notifications encompassing in
particular the description of performance status of the given Repair, and provide access to
such records at the request of the leading coordinator or the branch coordinator.
§ 170.
Obligations resulting from warranty will be performed, regardless of other provisions of the
Agreement, in accordance with the following principles:
1)
The Contractor covenants to perform the warranty obligations in the manner which
does not breach the terms and conditions of licenses and the maintenance (service)
agreements for the hardware and software of the System, including hardware and
software comprising the Data Transfer Network;
2)
The Contractor is obligated to perform the warranty obligations in such manner so as
to minimize interruptions in the normal operation of the Contracting Authority's enterprise and inconveniences to the entities in which the Devices are installed, and avoid
damage or destruction of property belonging to the entities in which the Devices are installed;
§ 171.
The provisions of Chapter 20 of the Agreement apply to all Contractor's Proprietary Elements
provided to the Contracting Authority or made available to it under warranty.
§ 172.
After Elapse of the Basic Term of Warranty for Devices referred to in § 147.2), the Contractor
will be obligated to remove the Defects of Devices of individual types (1-phase meters, 3phase meters, Concentrator and Balancing Sets) on the principles described in the foregoing
provisions during the additional Conditional Warranty Period lasting for 48 months and
commencing after the elapse of Basic Term of Warranty, however only if for all the Devices
delivered in the period of 48 months of the Agreement term the share of Devices of one type
in which Defect occurred during the Basic Term of Warranty as compared to the total number
of Devices referred to above exceeds 5% (maximum permitted level of defectiveness of Devices of the given type).
CHAPTER 19.
WARRANTY FOR STARTUP (SLA)
§ 173.
The Contractor warrants that in the period from the sixth month after elapse of the first full
calendar month after performance of the Final Verification (the SLA period) to the end of the
Agreement term, the Metering Devices will cooperate with the Data Transmission Network
and other components of the System in such way that each single Metering Device covered by
Warranty for startup will transmit to the Central System the set of 96 readouts of measurements (profile, billing data and alarms) for the given day until 6 am of the next day.
§ 174.
Verification of compliance with quality parameters referred to in § 173:
1)
will be carried out by the Contracting Authority in the next consecutive monthly periods corresponding to the consecutive calendar months on the basis of the data recorded by the Contracting Authority;
2)
will pertain only to the Metering Devices which will be installed in the Area of Installation (according to the status as at the beginning of the given monthly verification period) and perform at least one data transmission to the Central System, with the reservation that if the Final Verification gives a negative result and the contractual penalties
referred to in § 221 item 1) or § 221 item 2) are accrued to the Contractor, the Metering
Devices with respect to which it has been determined that they do not meet the criteria
set forth in Appendix 11 to the Agreement [Final Verification Criteria] will not be taken
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into consideration.
§ 175.
If the Contracting Authority ascertains that the qualitative parameters referred to in § 173
are not met, the Contracting Authority will present the Contractor with the report describing
the execution level of those parameters in the given calendar month.
§ 176.
The Contractor is obligated to immediately take actions aiming at achieving the required level
of fulfillment of all the quality parameters referred to in § 173 in the subsequent monthly verification periods unless non-achievement of those parameters results from the reasons attributable exclusively to the Contracting Authority or from force majeure. The Contractor is
obligated to inform the Contracting Authority on an ongoing basis about remedial actions
taken, and to ensure achievement of the required level of fulfillment of all the quality parameters referred to in § 173 at the end of the second month of the verification period following
the period in which the absence of required quality parameters was determined. The provisions of § 157 -§ 162 as well as § 170 and § 171 apply accordingly to the remedial actions.
§ 177.
Non-achievement of the required level of quality parameters referred to in § 173 in the first
monthly verification period following the period in which the absence of required quality parameters was determined will not be treated as occurrence of the next instance of absence of
quality parameters.
§ 178.
Non-achievement of the required level of quality parameters referred to in § 173 in the second monthly verification period following the period in which the absence of required quality
parameters was determined will be treated as occurrence of the next instance of absence of
quality parameters subject to the obligation of removal by the Contractor on the principles
defined in the provisions of this Chapter of the Agreement.
§ 179.
Non-achievement of the required level of quality parameters in the next monthly verification
period in accordance with § 177 and § 178 may happen regardless of whether the same parameter which had justified the previous ascertainment of the absence of the required quality
parameters was once again not achieved or whether other parameters referred to in § 173
were not achieved.
§ 180.
If the required SLA parameters are not achieved during the period of stabilization i.e. 6
months, the Contractor may – to avoid the payment of contractual penalties – present the
proposal of application and implementation of replacement technology on its own expense.
The decision with regard to possible implementation of replacement technology or accrual of
penalties will be made by the Contracting Authority.
CHAPTER 20.
§ 181.
INTELLECTUAL PROPERTY RIGHTS
The Contractor warrants that all the Deliverables will be free from any legal defects, in particular that the entities from the Energa Group and other persons will have the right to use
the Deliverables according to their functionality, assumed non-functional parameters, scope
of usage resulting from the Agreement, intended manner of usage of the individual Deliverables and intended scope of their usage by the entities from the Energa Group and other persons, and that such usage will not breach any rights, including copyrights or industrial property rights of the third parties. If any third parties submit claims based on the allegation that
usage of the Deliverables by the entities from the Energa Group or other persons, their legal
successors or licensees breaches any rights of such parties, such entity will immediately notify the Contracting Authority about such claims. The Contractor will be obligated to take any
necessary actions aiming at resolving the dispute resulting from the claims of third parties, it
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curred by the Contracting Authority. In particular, if a suit is filed against the Contracting Authority, its legal successor or licensee by virtue of breach of intellectual property rights, the
Contractor will enter the procedure as a defendant or, if this is not possible, it will act as an
auxiliary intervener for the defendant and it will cover all the costs and indemnifications related to the third party's claim, including costs of legal representation incurred by the Contracting Authority, its legal successors or their licensees. If the settlement is concluded, the
Contractor will cover all the costs and indemnifications related to the third party's claim, with
the reservation that the Contractor expressed its consent for final shape of the settlement and
participated in determining its terms and conditions.
§ 182.
The Contractor warrants and covenants that the scope of rights to use the Contractor's Proprietary Elements obtained by the Contracting Authority on the basis of the Agreement is fully sufficient for realization of all the functional requirements and parameters of the Deliverables covered by the Agreement.
§ 183.
If a third party's claim associated with a legal defect of the Deliverable or its part is submitted
(or is likely to be submitted or information about the breach justifies taking the necessary action before a claim is submitted), the Contractor will modify the Deliverables previously delivered to the Contracting Authority or replace them while keeping the quality and content
and functionality at least equivalent to the original elements. In such situation, the Contractor
will also authorize the Contracting Authority to use such modified or replaced work results
according to the rules described in the Agreement and as part of its remuneration.
§ 184.
Without prejudice to § 196, the Contractor covenants to grant to the Contracting Authority, as
part of its remuneration, non-exclusive, transferable license to use the Contractor's Proprietary Elements, except for the Testing and Diagnostic Software, on all the fields of operation
known on the date of concluding the Agreement, including:
1)
for the Contractor's Proprietary Elements which do not constitute computer software,
including Test Scenarios and Documentation – on the fields of operation including the
following:
(a) with regard to recording and multiplying – producing copies of the work using any
technology, including printing, reprography, magnetic recording and digital technology;
(b) with regard to trading the original or copies of the given creation – introducing the
original or copies for trading, lending or leasing;
(c) with regard to distribution in a manner different than specified in item (b) above –
public performance, staging, projecting, playing, broadcasting or retransmitting, as
well as publicizing the creation in such manner so as to enable any person to have
access to it at any chosen place and time, including on the Internet and other ICT
networks (intranet, extranet) and digital platforms;
2)
for computer software – on the fields of operation including:
(a) permanent or temporary multiplication of computer software in whole or in part
by any means and in any form;
(b) translation, adjustment, change of the layout or any other modifications to the
computer software;
(c) distribution, including lending or leasing, of the computer software.
§ 185.
The Contractor will grant to the Contracting Authority the right to freely use the executable
code of the Testing and Diagnostic Software simultaneously on any number of hardware units
and by any number of users:
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1)
in the entire Energa Group;
2)
without limitations as to the duration of the agreement or the permitted territory and
without the licensor's right to terminate the license agreement (at least an obligation
not to exercise such right), except for the cases of breach of the Contractor's rights described in the license agreement;
3)
also with respect to entrusting the service of the Testing and Diagnostic Software, including its administration, to the third parties, with the reservation that the objective of
such service will be to administrate the Contracting Authority's processes.
§ 186.
The license referred to above includes also the authorization (consent) for the Contracting
Authority to exercise the derivative copyrights for development of Contractor's Proprietary
Elements, including Software, Test Scenarios and Documentation of Devices (i.e. usage and
disposal of developments of the foregoing creations), on all fields of operation described
above.
§ 187.
The license includes also the right to grant to the third parties further licenses (sub-licenses)
on all fields of operation described above, including further consents for exercise of derivative copyrights for development of Contractor's Proprietary Elements, including Software,
Test Scenarios and Documentation of Devices (i.e. usage and disposal of developments of the
foregoing creations).
§ 188.
The Contracting Authority in particular has the right to do the following:
1)
authorize other entities to use the Contractor's Proprietary Elements for the purposes
related to conducting business operations by the companies from the Energa Group;
2)
authorize other entities to provide technical services for Contractor's Proprietary Elements, also by commissioning them to perform service or administrative activities, including modification of software;
3)
if the Contracting Authority is divided into two entities or part of the Contracting Authority's enterprise is spun off – have each of the entities created in such manner use
the Contractor's Proprietary Elements, even if they do not fit within the definition of
the Energa Group, where in such case such entities will be authorized to use the Contractor's Proprietary Elements only for their own needs or for the purpose of providing
services to the companies from the Energa Group.
§ 189.
The license to use the Contractor's Proprietary Elements is granted to the Contracting Authority as of the moment of transferring the relevant Contractor's Proprietary Elements to
the Contracting Authority, also if they have not been finished, without necessity to submit any
additional representations by any of the Parties. Provision of creation to the Contracting Authority is also understood as provision of the creation which constitutes part of the Device or
usage of the creation in any way in connection with the performance of the Agreement.
§ 190.
Upon granting of the license, the Contractor transfers onto the Contracting Authority the
ownership title to the carriers on which the Contractor's Proprietary Elements were recorded
at the time when they were issued. This does not apply if this Agreement contains a different
definition of the moment of transfer of ownership title to the carriers on which the given Contractor's Proprietary Element was recorded or if it is provided in a non-material form (e.g.
through allowing an option of downloading it from the server).
§ 191.
The consent to exercise derivative copyrights to developments of Contractor's Proprietary
Elements is granted as of the moment of executing the development of the given Contractor's
Proprietary Element, without necessity to submit any additional representations by the Parties.
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§ 192.
The license to use the Contractor's Proprietary Elements and consent to exercise derivative
copyrights is granted for the period of 30 years, and then it transforms itself into a license
valid for an indefinite period, without necessity to submit any representations by any of the
Parties.
§ 193.
The Contractor covenants that:
1)
with the exception of the cases described in § 194 below, the license to use the Contractor's Proprietary Elements will not expire entirely or in part, in particular the Contractor will not terminate the license or withdraw the right to exercise derivative copyrights to developments of any of the Contractor's Proprietary Elements,
2)
if the Contractor transfers the proprietary copyrights to the above-described creations
entirely or in part onto the third party on any legal grounds (e.g. sale of rights, acquisition of the Contractor, Contractor's merger with a different entity, transformations of
the Contractor's enterprise), it will ensure that the license will continue to be in effect
and the acquirer of proprietary copyrights will not take any factual or legal actions
which may prevent or hinder the Contracting Authority's usage of the creations in
question in the previous scope.
§ 194.
The Contractor will have the right to terminate the license to use the Contractor's Proprietary
Elements only if the Contracting Authority has committed material breach of terms and conditions of this license or the Contractor's proprietary copyrights to the foregoing creations
and it has not stopped the actions in question despite being summoned in writing, under the
pain of invalidity, to stop the actions constituting material breach of the license or rights, by
the deadline specified in the summons but not shorter than 45 days counting from receipt of
the summons by the Contracting Authority. In the aforementioned case, the license may be
terminated only with respect to the Contractor's Proprietary Elements to which the breach
pertains, in keeping with the termination notice period of two years.
§ 195.
If the Contractor breaches the obligation resulting from § 193, in particular if the Contractor
terminates the license for usage of Contractor's Proprietary Elements, the termination notice
period for the license will be 10 (ten) years, effective as at the end of the calendar year.
§ 196.
If the given Contractor's Proprietary Element is co-created by the Contracting Authority and
the Contractor, in particular if such element is developed with the Contracting Authority's
participation and on the basis of creative developments provided by it, the Contracting Authority's rights to such creation will not be lower than resulting from the above-described license. The Contractor may use such creation for its own needs, and the distribution of such
Contractor's Proprietary Element by the Contractor requires each time the consent of the
Contracting Authority granted in writing, otherwise being null and void.
§ 197.
With respect to Contractor's Proprietary Elements to which the third parties will have the
appropriate intellectual property rights, in particular proprietary copyrights or industrial
property rights, the Contractor will grant to the Contracting Authority, upon transferring
them and as part of the Contractor's Remuneration contemplated in the Agreement, the appropriate set of rights (in particular, it will procure the authorized entities to grant the relevant licenses), so that usage of Deliverables by the entities from the Energa Group and the
third parties in accordance with their functionality, intended scope of usage resulting from
the Agreement and the intended manner of use, will not breach any rights, including copyrights or industrial property rights of the third parties.
§ 198.
During the performance of the Agreement, the Contractor will enable the Contracting Authority to develop competence and know-how associated with the Metering Infrastructure, including its installation and operation. In particular, for this purpose, the Contractor will allow
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the persons named by the Contracting Authority to participate in the performance of the
Agreement at each stage of its performance. The Contractor will provide adequate clarifications to the persons named by the Contracting Authority.
§ 199.
The Contractor warrants that the persons holding individual copyrights to Contractor's Proprietary Elements will not exercise such rights against the Contracting Authority.
§ 200.
The Contractor will ensure that performance of the Agreement and usage of the Devices will
not cause breach of rights, terms and conditions of the license, warranty terms or service
terms of the computer software comprising the Data Transmission Network.
§ 201.
During the performance of the Agreement, the Contractor will cooperate with other entities
carrying out the work related to development of the AMI System. Details of cooperation will
be defined by way of arrangements between the Parties' coordinators.
§ 202.
Unless the Agreement clearly states otherwise, licenses granted in connection with this
Agreement are not in any way limited as regards the number of users, number or type of devices on which the software may be used, etc., and the Contracting Authority's usage of creations covered by such licenses according to the purpose of this Agreement and the intended
manner of use of such creations will not result in the obligation to pay increased or additional
remuneration to the Contractor or any third party.
§ 203.
The license for Contractor's Proprietary Elements which constitute the software pre-installed
on the supplied Devices (firmware) does not have to cover the rights referred to in § 184 item
2) letter (c). The foregoing reservation does not limit the rights related to performance of the
security audit referred to in § 20 and next.
CHAPTER 21.
REMUNERATION AND TERMS OF PAYMENT
[AMOUNT OF REMUNERATION]
§ 204.
On account of the Contractor's performance of the obligations resulting from the Agreement,
except for the obligations related to conducting Workshops, the Contracting Authority will
pay the Contractor the remuneration in the amount of [●](Basic Remuneration) [the amount
of Basic Remuneration to be determined according to the content of the Contractor's bid].
§ 205.
On account of the Contractor's conducting of Workshops (Remuneration for Workshops), the
Contractor will be eligible to receive the remuneration in the amount equal to the product of
the number of Workshop participants who obtained the Certificates and the unit rate for
conducting the Workshops. The unit rate for conducting the Workshops is [●], and the Remuneration for Workshops cannot exceed the amount of [●]. [The level of unit rate for conducting the Workshops and the amount of maximum Remuneration for Workshops constituting
the product of that rate and the maximum number of Certificates stipulated in the Agreement
to be defined in accordance with ToR and the content of the Contractor's bid]
§ 206.
VAT in the amount prescribed by the regulations will be added to the remuneration due to
the Contractor which is stated in net amount.
§ 207.
The Remuneration constitutes the Contractor's entire remuneration for the performance of
the Agreement. The Contractor will not have the right to make any claims against the Contracting Authority, in particular for refund of travel expenses and accommodation of the
members of the Contractor's Staff or refund of any other additional expenses incurred by the
Contractor in connection with the performance of the Agreement.
[RULES FOR PAYMENT OF REMUNERATION]
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§ 208.
The relevant parts of Remuneration will be paid on the basis of a VAT invoice, correctly issued and delivered to the Contracting Authority, with an attached copy of acceptance report
signed by the properly authorized representative of the Contracting Authority – via transfer
to the Contractor's account specified on the invoice, within 30 days from the date of delivering the correctly issued invoice to the Contracting Authority. The date of payment will be the
date of the Contracting Authority submitting a bank transfer order.
§ 209.
Payments will be made in arrears; payments of individual amounts of Remuneration will be
made in the following manner:
§ 210.
1)
The Contractor will have the right to issue the VAT invoice for the relevant parts of
Basic Remuneration calculated as products of the number of Metering Devices and
ZKBs of individual type delivered and accepted by the Contracting Authority, and the
unit rates of the Basic Remuneration assigned to such Devices, contemplated in the
Agreement, in particular Appendix [5] – [Contractor's Bid], each time after acceptance
of the Devices;
2)
The Contractor will have the right to issue the VAT invoice for the relevant amounts of
Remuneration for Workshops calculated according to § 205, each time after acceptance
of the Workshops;
VAT invoices will be sent by the Contractor:
1)
In case of Basic Remuneration – to the executive coordinator;
2)
In case of Remuneration for Workshops – to the leading coordinator;
– to the addresses indicated, correspondingly, in Appendix 7 to the Agreement [Coordinators and Contact Details].
§ 211.
Depending on the delivery location specified in Appendix 8, the Contractor will issue separate
invoices, correspondingly, for the addresses of branches specified below:
1)
ENERGA - OPERATOR SA Branch in Elbląg,
82-300 Elbląg, ul. Elektryczna 20
NIP 583-000-11-90;
2)
ENERGA - OPERATOR SA Branch in Gdańsk,
80-557 Gdańsk, ul. Marynarki Polskiej 130
NIP 583-000-11-90;
3)
ENERGA - OPERATOR SA Branch in Kalisz,
62-800 Kalisz, Al. Wolności 8
NIP 583-000-11-90;
4)
ENERGA - OPERATOR SA Branch in Olsztyn,
10-950 Olsztyn, ul. Tuwima 6
NIP 583-000-11-90;
5)
ENERGA - OPERATOR SA Branch in Słupsk,
76-200 Słupsk, ul. Przemysłowa 114
NIP 583-000-11-90;
6)
ENERGA - OPERATOR SA Branch in Płock,
09-400 Płock, ul. Wyszogrodzka 106
NIP 583-000-11-90;
7)
ENERGA - OPERATOR SA Branch in Toruń,
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NIP 583-000-11-90.
§ 212.
The VAT invoice should contain, besides the required data specified above, also number of
the agreement, number of the procurement, order or details of the Contracting Authority's
representative designated for cooperation under the agreement.
CHAPTER 22.
LIABILITY OF PARTIES
[GENERAL RULES]
§ 213.
Each Party's total joint liability for damages inflicted on the other Party in connection with
the Agreement is limited to the amount equal to ________% of the Remuneration plus the sum
of amounts agreed as payable to the Contractor in connection with changes to the Agreement,
according to its provisions and the provisions of PPL.
§ 214.
Any limitations of Contractor's liability stipulated in the Agreement do not apply to:
1)
damages inflicted on the Contracting Authority as a result of willful misconduct or
gross negligence;
2)
damages resulting from legal defects of the Deliverables or their individual elements, in
particular in connection with claims made by the third parties in connection with the
Contractor's breach of their intellectual property rights as a consequence of use of Deliverables;
3)
damages resulting from breaching the rules for protection of the Contracting Authority's Confidential Information.
§ 215.
In each case in which the contractual penalties are reserved in the Agreement in favor of the
Contracting Authority, the Contracting Authority will be authorized to pursue supplementary
damages on general principles up to full value of damages, taking into account limitations of
the Contractor's indemnification liability resulting from the provisions of the Agreement.
§ 216.
The contractual penalties reserved in the Agreement in favor of the Contracting Authority
will be also payable if any of the Parties withdraws from the Agreement entirely or in part.
§ 217.
The amounts of contractual penalties envisaged in the Agreement will be payable to the Contracting Authority within 14 days from the date of Contractor's receipt of a written demand
for payment.
§ 218.
Contractual penalties are independent from one another. If there occur the events justifying
the accrual of a contractual penalty, the Contracting Authority may demand from the Contractor the payment of such penalties in full amount, even if more than one contractual penalty
may be accrued as a result of a single event.
[CONTRACTUAL PENALTIES]
§ 219.
In the event of Contractor's delay in delivery of Devices as compared to the delivery deadlines
resulting from the Agreement, the Contracting Authority will have the right to demand from
the Contractor the payment of contractual penalty in the amount of ____% of adequate amount
of remuneration due for execution of the given batch of delivery for each commenced day of
delay, with respect to the given batch of deliveries.
§ 220.
If the Contracting Authority does not perform the acceptance of the Mock-up, Documentation,
Test Scenarios and Testing and Diagnostic Software by the deadline specified in the schedule,
the Contracting Authority will have the right to demand from the Contractor the payment of
contractual penalty in the amount of PLN _______ for each day of the period counting from the
elapse of deadline for performing the acceptance specified in the schedule to the date of
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handing over the final versions of Deliverables on the basis of which the Contracting Authority will perform the acceptance. If failure to keep the acceptance deadlines results from Contracting Authority's failure to keep the deadlines, the contractual penalty may be accrued only in case of refusal to perform acceptance and for the period from the acceptance refusal
date (date of the report) to the date of handing over to the Contracting Authority the final
versions of Deliverables on the basis of which the Contracting Authority will perform the Acceptance.
§ 221.
If the Contractor does not hand over to the Contracting Authority the materials for Workshops specified in § 128 by the deadline specified in the Agreement, or in case of refusal of
their acceptance due to non-fulfillment of the acceptance criteria specified in the Agreement,
the Contracting Authority will have the right to demand from the Contractor the payment of
contractual penalty in the amount of _____ % of Basic Remuneration for each subsequent week
of the period counting from the date on which such materials should have been handed over
to the date of handing over the final version of materials on the basis of which the Contracting
Authority will perform the acceptance of Workshops, with the reservation that in the event of
refusal to accept the Workshops after the deadline for acceptance of Workshops defined for
the Contracting Authority in the Agreement, the start date of the aforementioned period of
accruing the penalty will be the acceptance refusal date (date of the report).
§ 222.
If the result of Final Verification is negative, the Contracting Authority will have the right to
demand the payment of the following contractual penalties from the Contractor:
1)
in the case referred to in § 141 item 2), in the amount of PLN ______ for each Device in
excess of 2% of all the Devices covered by the Final Verification, which does not meet
the Final Verification criteria;
2)
in the case referred to in § 141 item 3):
(a) in the amount of PLN ________ for each Device in excess of 2% of all the Devices,
which does not meet the Final Verification criteria, and no more than for 5% of all
the Devices covered by the Final Verification, and
(b) in the amount of PLN ______ for each Device in excess of 5% of all the Devices covered by the Final Verification, which does not meet the Final Verification criteria.
Contractual penalties stipulated in this item will not be accrued if failure to satisfy the quality
parameter for the given Device has occurred for reasons: (i) attributable exclusively to the
Contracting Authority or (ii) attributable exclusively to the third party for which the Contractor is not liable or (iii) attributable exclusively to force majeure. The burden of proof with respect to foregoing circumstances rests with the Contractor.
§ 223.
If the Contractor does not comply with the Repair Time of the Metering Device or ZKB, the
Contracting Authority will have the right to demand from the Contractor the payment of the
following contractual penalties in the amount of ____% of the calculation value of Basic Remuneration stipulated in the Agreement with regard to the given Device (net unit price of the
given Device) for each commenced week of delay, however in total no more than _____% of
that value in the given unit case.
§ 224.
In case of occurrence during the annual period falling during the Basic Term of Warranty,
with respect to at least 20% of Devices delivered to the Contracting Authority, the Defects of
such Devices resulting in the obligation of their Repair by the Contractor, the Contracting Authority will have the right to demand from the Contractor the payment of contractual penalty
in the amount of PLN ____ for each subsequent Device in which Defect occurs.
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§ 225.
In case of failure to keep in the SLA Period the deadline for restoring the required quality
parameters referred to in § 176 for the reasons other than attributable to the Contracting Authority or force majeure, the Contracting Authority will have the right to demand from the
Contractor the payment of contractual penalty in the amount of PLN _______ for each case of
failure to keep the deadline for restoring the required quality parameters by the end of the
second subsequent monthly verification period after the period of its occurrence.
Contractual penalties stipulated in this item will not be accrued if failure to satisfy the quality
parameter has occurred for reasons: (i) attributable exclusively to the Contracting Authority
or (ii) attributable exclusively to the third party for which the Contractor is not liable or (iii)
attributable exclusively to force majeure. The burden of proof as far as the reasons for reduction of the quality parameter are concerned rests with the Contractor.
§ 226.
In case of failure to meet the quality parameter referred to in § 173 and § 174 for the reasons
attributable to the Contractor, the Contracting Authority will have the right to demand from
the Contractor the payment of contractual penalty in the amount of PLN _____ for each Device
for which the parameter was not met.
§ 227.
If the Contractor uses the services provided by the subcontractors in breach of the rules, stipulated in the Agreement, for admitting such entities to the performance of the Agreement on
the Contractor's behalf, the Contracting Authority will have the right to demand from the
Contractor the payment of contractual penalty in the amount of PLN ____ for each such case.
§ 228.
If the rules for protection of Confidential Information are breached, the Contractor will pay
the Contracting Authority the contractual penalty in the amount of PLN ________ for each instance of breach.
§ 229.
In case of breaching the rules of protection or in case of breaching the rules of personal data
processing, the Contractor will pay the Contracting Authority the contractual penalty in the
amount of PLN ________ for each instance of breach.
§ 230.
If the Contracting Authority withdraws from the Agreement for the reasons attributable to
the Contractor, the Contractor will pay the Contracting Authority the contractual penalty in
the amount of _____ % of Basic Remuneration.
§ 231.
Total amount of contractual penalties accrued in accordance with the provisions of this
Agreement cannot exceed ________% of the Remuneration plus the sum of amounts agreed as
payable to the Contractor in connection with changes to the Agreement, according to its provisions and the provisions of the Act entitled Public Procurement Law.
CHAPTER 23.
§ 232.
TERM AND TERMINATION OF THE AGREEMENT
The Agreement is in effect until the Parties' obligations stipulated in it are performed, with
reservation of the Parties' obligations, stipulated in the Agreement, with respect to warranty
and the provisions concerning the Workshops – which are in effect for the period of four
years from the date of concluding to the Agreement.
[WITHDRAWAL BY THE CONTRACTOR]
§ 233.
If the Contracting Authority refuses to exercise cooperation envisaged by the provisions of
the Agreement, which is necessary for performance of the Agreement, the Contractor will
demand from the Contracting Authority to exercise proper cooperation, in writing under the
pain of the demand being null and void, describing the scope of non-cooperation and inaction
and specifying the extent to which non-cooperation makes it impossible to finalize the performance of the Agreement and specifying the scope of actions required by it and setting the
deadline no shorter than 30 days for ensuring such cooperation. After ineffective elapse of
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that deadline, the Contractor will set an additional deadline (in writing, otherwise being null
and void) of no less than 30 days with the reservation that after its elapse the Contractor will
have the right to withdraw from the Agreement. After elapse of that additional deadline, the
Contractor will have the right to withdraw from the Agreement.
§ 234.
If the Contracting Authority is more than 30 days late with a payment of at least two due and
payable invoices for the amount no less than 5% of Remuneration, the Contractor will send a
demand to the Contracting Authority in writing (otherwise being null and void) to pay the
amounts in arrears by the deadline not shorter than 30 days from the date of receipt of such
demand. After ineffective elapse of that deadline, the Contractor will set an additional deadline (in writing, otherwise being null and void) of no less than 30 days with the reservation
that after its elapse the Contractor will have the right to withdraw from the Agreement. After
elapse of that additional deadline, the Contractor will have the right to withdraw from the
Agreement. This clause modifies the provisions on withdrawal from the agreement in the
event of the debtor's delay. The Contractor will not have the above right if the Contracting
Authority has submitted a statement on deducting the Contractor's claim to pay remuneration against its own claims towards the Contractor e.g. claims to pay contractual penalties.
§ 235.
If the Contractor withdraws from the Agreement on any grounds:
1)
after receiving from the Contractor the representation on withdrawal from the Agreement, the Contracting Authority will specify, within 30 days, whether it wants to keep
any Deliverables which may be used by it (even if they have not been finished), and if
so, which and to what extent,
2)
if the Contracting Authority keeps any Deliverables, the Contractor will retain the right
to receive remuneration for those Deliverables; the amount of remuneration will be determined on the basis of Remuneration described in the Agreement, and if such information is not sufficient (e.g. if the Deliverables have not been finished or they have
lower value as a result of non-performance of the entire subject matter of the Agreement) – on the basis of the amount of work necessary to perform such tasks and their
usefulness to the Contracting Authority.
The Contracting Authority will keep or purchase all the specified Deliverables and it will keep
or – respectively – purchase the right to use the Contractor's Proprietary Elements according
to Chapter 20 of the Agreement.
[WITHDRAWAL BY THE CONTRACTING AUTHORITY]
§ 236.
In addition, the Contracting Authority will have the contractual right to withdraw from the
Agreement without setting an additional deadline for the Contractor in the event of the following:
1)
Contractor's delay in delivering to the Contracting Authority the Documentation consistent with the requirements described in the Agreement, in particular in Appendix 3
to the Agreement [List and Description of Deliverables] by at least 30 days;
2)
delay in delivering to the Contracting Authority all the required Certificates of Approval
for Usage for the individual types of Devices by at least 30 days;
3)
Contractor's delay in delivery of Deliverables specified in § 30 or any batch of Devices
as compared to the delivery deadlines, by at least 30 days;
4)
absence of grounds for acceptance of Deliverables specified in item § 30 for the reasons
attributable to the Contractor despite elapse of 20 weeks from their delivery deadline
specified in the schedule;
5)
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ty, with respect to at least 10 % of Devices delivered to the Contracting Authority, of the
Defects of such Devices resulting in the obligation of their replacement by the Contractor for the Devices which are free from Defects,
6)
not maintaining the quality parameter, during term of warranty for Startup, mentioned
in § 173, resulting in occurrence of at least 4 (four) Failures in the given year;
7)
Contractor's or – respectively – the Device manufacturer's refusal to conclude a confidentiality agreement with the auditor according to the model constituting Appendix 6
to the Agreement [Model of Confidentiality Agreement], in accordance with § 29.
§ 237.
If the Contracting Authority withdraws from the Agreement, the Contracting Authority will
inform the Contractor in its representation of withdrawal from the Agreement whether the
representation is effective with respect to the entire Agreement or only its part. Lack of such
information means that the representation is effective with respect to the entire Agreement.
§ 238.
In the event of Contracting Authority's withdrawal from the agreement effective with respect
to the entire Agreement:
§ 239.
1)
The Contractor will be obligated to return the entire Remuneration received from the
Contracting Authority (including remuneration for Deliverables accepted by the Contracting Authority) within 14 days from the date of Contractor's receipt of the Contracting Authority's representation on withdrawal;
2)
The Contracting Authority will return to the Contractor all the Deliverables accepted
until that moment or it will destroy or remove them in such way so that it will not be
possible to use them for production purposes, however, the Contracting Authority has
the right to retain individual copies of Deliverables for the needs of a possible court
procedure – until the moment of prescription of the Parties' claims, without the right to
use copies preserved in such manner for production purposes;
3)
The Contractor covenants not to raise against the Contracting Authority any claims resulting from usage of Deliverables delivered to the Contracting Authority in the period
from their handover to the date of their destruction or return to the Contractor;
4)
The Contractor will be obligated to pay a contractual penalty in the amount set forth in
§ 230.
If in the representation on withdrawal from the Agreement the Contracting Authority indicates that withdrawal is effective only with respect to a part of the Agreement:
1)
the Contracting Authority will specify which Deliverables (also unfinished ones) it
wants to keep;
2)
if the Contracting Authority keeps any Deliverables, the Contractor will retain the right
to receive remuneration for those Deliverables; the amount of remuneration will be determined on the basis of Remuneration described in the Agreement, and if such information is not sufficient (e.g. if the Deliverables have not been finished or they have
lower value as a result of non-performance of the entire subject matter of the Agreement) – on the basis of the amount of work necessary to perform such tasks and their
usefulness to the Contracting Authority;
3)
The Contracting Authority will keep or purchase all the specified Deliverables and it
will keep or – respectively – purchase the right to use the Contractor's Proprietary Elements according to Chapter 20;
The Contractor will be obligated to pay a contractual penalty in the amount set forth in § 230.
§ 240.
The Contracting Authority has the right to withdraw from the Agreement (contractual right
to withdraw) without stating any reason, also if the Contractor performs the Agreement
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properly, at any moment if its effective term. In such situation:
§ 241.
1)
The Contractor will retain the remuneration received from the Contracting Authority;
2)
The Contracting Authority will pay the Contractor the remuneration for the entire work
performed until the date of withdrawal from the Agreement, which has not yet been
settled, where the amount of remuneration will be determined on the basis of value of
work according to the Agreement and the degree of its completion, and if such information is not sufficient (e.g. in case of lower value as a result of non-performance of the
entire subject matter of the Agreement) – on the basis of the amount of work necessary
to perform the tasks and their usefulness to the Contracting Authority;
3)
The Contracting Authority will keep or purchase all the specified Deliverables and it
will keep or – respectively – purchase the right to use the Contractor's Proprietary Elements according to Chapter 20 of the Agreement.
For the avoidance of doubts, the Parties confirm that none of the provisions of the Agreement
excludes or limits the Contracting Authority's right to withdraw from the Agreement or its
termination on the basis of the provisions of law. In such situation:
1)
In the representation on withdrawal from the Agreement the Contracting Authority will
indicate that the withdrawal is made on the basis of the provisions of law;
2)
The Contracting Authority may withdraw from the entire Agreement; § 238 applies accordingly;
3)
The Contracting Authority may withdraw from part of the Agreement; § 239 applies accordingly;
4)
The Contractor will be obligated to pay a contractual penalty in the amount set forth in
§ 230;
§ 242.
Representation on withdrawal from the Agreement must be made in writing, otherwise being
null and void.
§ 243.
Each of the contractual rights of withdrawal from the Agreement stated in the Agreement
may be exercised by the Contracting Authority no later than by ____________.
[TERMINATION OF THE AGREEMENT]
§ 244.
In the scope in which the Agreement constitutes an agreement for provision of services (in
particular Workshops), the Agreement:
1)
is concluded for the period specified in § 232.
2)
may be terminated by the Contractor only for valid reasons, on the principles and in
keeping with the procedures described in this Agreement.
§ 245.
A valid reason authorizing the Contractor to terminate the Agreement will be the Contracting
Authority's delay in the payment of due and payable Remuneration of at least 30 days and
non-payment of Remuneration despite additional demand sent to the Contracting Authority
to pay the due and payable Remuneration, after elapse of the aforementioned period of delay
and ineffective elapse of additional deadline no shorter than 30 days set by the Contractor. At
the same time the Contractor covenants that it will not terminate the Agreement for other
valid reason than described in this item of the Agreement (non-payment after ineffective
elapse of the additional deadline).
§ 246.
In any case, termination of the Agreement by the Contractor requires keeping a 2-month termination notice period.
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CHAPTER 24.
§ 247.
SECURITY FOR THE PROPER PERFORMANCE OF THE AGREEMENT
The Contractor has determined the security for the proper performance of the Agreement in
the amount of 10% of the price stated in the Bid, in (the final wording to be agreed depending
on form of security):
1)
cash;
2)
bank surety or surety issued by cooperative savings and loan, with the reservation that
cooperative's obligation is always a pecuniary obligation;
3)
bank guarantee;
4)
insurance guarantee;
5)
surety granted by an entity referred to in Art. 6b sec. 5 item 2 of the Act of 9 November
2000 on the Establishment of the Polish Agency for Enterprise Development.
Security has been paid by the date of concluding the Agreement.
§ 248.
The Contracting Authority will return 70% of the amount of security within 30 days from the
date of performance of the procurement and the Contracting Authority's consideration of
such procurement as properly performed, and it will return the remaining part of the security
at the latest on the 15th day after elapse of the period of statutory warranty for defects for
the last Device delivered.
§ 249.
The security serves the purpose of covering the claims on account of failure to perform or
inadequate performance of the Agreement.
§ 250.
If the security is not kept in the required amount, not submitted by the deadlines and not
kept in compliance with the foregoing provisions, the Contracting Authority will have the
right to accrue contractual penalty in the amount equal to the required security for the proper performance of the Agreement and withdraw from the Agreement.
§ 251.
The Contractor – regardless of the above-described security for the proper performance of
the Agreement – is obligated to present and maintain during the term of the Agreement the
third party liability insurance policy for the amount no less than PLN 5 million. The policy attached on the date of signing the Agreement constitutes Appendix 12 to the Agreement.
§ 252.
The Contractor is obligated to maintain the policy in full amount and on the same terms and
conditions until elapse of 30 days from the end date of the warranty period.
§ 253.
If the policy is not kept in the required amount and on the same terms and conditions, is not
submitted by the deadlines and not kept in compliance with the foregoing provisions, the
Contracting Authority will have the right to accrue contractual penalty in the amount equal to
the required security for the proper performance of the Agreement and withdraw from the
Agreement.
CHAPTER 25.
§ 254.
PROTECTION OF INFORMATION, PERSONAL DATA
The Contractor will be obligated not to disclose, transfer or use in its own business activity, in
the scope greater than necessary for the performance of the Agreement, the information obtained in connection with the performance of the Agreement, regardless of the form of processing such information, its source and method of processing (Confidential Information).
This concerns in particular:
1)
information constituting the Contracting Authority's company secret within the meaning of the Act on Combating Unfair Competition.
2)
other technical, technological, economic, financial, commercial, legal and organizational
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information concerning the Contracting Authority;
3)
information constituting other secrets protected by the relevant provisions of law.
§ 255.
Confidential Information obtained by the Contractor cannot be used for purposes other than
for performance of the Agreement.
§ 256.
The Contractor covenants not to disclose Confidential Information in any manner, entirely or
in part, without prior consent of the Contracting Authority, unless the obligation to disclose it
results from the provisions of law or such disclosure is made for the needs of the pending
court, administrative or criminal procedures, including procedures related to offenses. If Confidential Information is disclosed to a third party, the disclosing Party will reserve its confidentiality, unless this is not permitted because of the regulations of law, and it will ensure
that the person, to whom such information is disclosed, obligates himself/herself to keep it
confidential on the principles set forth in the Agreement.
§ 257.
If an obligation to disclose Confidential Information is imposed on a Party in accordance with
the binding provisions of law, such disclosure will not be considered to be made in breach of
the provisions of this Agreement only if the Party obligated to such disclosure, before making
it, immediately notifies the other Party about existence of such obligation, consults with the
other Party the possibilities of and justification for taking legal measures with the aim of
avoiding or limiting this obligation, and it will act with due diligence to obtain from the entity
to which the disclosures is to be made the assurance of protection of the Confidential Information disclosed.
§ 258.
The Contractor is obligated to protect the Confidential Information regardless of the form of
processing it (among other things, information in spoken form, paper documents or information recorded in the electronic form) or the progress of work. For that purpose, the Contractor covenants to apply the relevant procedures and physical, organizational and technological security measures. The Contractor should use the protective measures which are at
least as strong as the ones it uses with respect to its own confidential information not connected with the performance of the Agreement, and they should in each case ensure execution of obligation related to protection of Confidential Information referred to in this chapter.
§ 259.
The Parties resolve that Confidential Information will be exchanged between them in the
form preventing the access of third parties to it.
§ 260.
The Contractor is liable for disclosure of Confidential Information also by the persons it uses
when performing the Agreement, including subcontractors.
§ 261.
In the event of termination of this Agreement for any reason, the provisions of this Chapter
25 of the Agreement will be in effect for ten years from the end of its effective term. Regardless of the above, after termination of the Agreement regardless of the reason, the Contractor
will return within seven days all the documents containing Confidential Information received
from the Contracting Authority. With respect to Confidential Information transmitted electronically, the Contractor will remove it from its computer resources and information carriers. The Contractor will also make sure that this is made by all the persons it used when performing the Agreement, in particular subcontractors.
§ 262.
Before starting to carry out any activities related to the performance of this Agreement, the
natural persons participating in the performance of the Agreement on the Contractor's side
will be obligated to sign the representation whose model may be found in Appendix 13 and
send it to the Contracting Authority.
§ 263.
Nothing in the Agreement excludes more rigorous obligations to protect the Confidential Information stipulated in the provisions of law.
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§ 264.
Breach of the obligation to protect Confidential Information included in this Agreement will
result in the Parties' liability on general principles and it will authorize the Contracting Authority to accrue contractual penalty in accordance with § 228.
§ 265.
Regardless of other obligations arising out of the Agreement, during the performance of the
Agreement the Contractor will be obligated to comply with the binding regulations, in particular the provisions concerning protection of information. At the request of the Contracting
Authority, the Contractor will be obligated in particular to provide the information necessary
for the Contracting Authority to comply with its obligations towards the state administration
authorities appointed to exercise control and ensure security and protection of processed information.
§ 266.
The Parties covenant to ensure compliance with the personal data protection laws. The scope
of the Agreement does not include processing of such data by the Contractor. In such case, if it
turns out that in order to perform the Agreement the Party must perform the processing of
personal data within the meaning of the Personal Data Protection Act of 29 August 1997, for
which data the other Party is the data administrator or an entity processing the personal data
upon order of the third parties (the "processor"), the Parties will conclude an entrustment of
personal data agreement defining the scope and purpose of personal data processing. The
Parties resolve that the entrustment of personal data agreement will be performed within the
Remuneration and the Contractor will not have the right to demand additional remuneration
on that account from the Contracting Authority. The Contractor will not begin to process the
personal data for which Energa Operator S.A. is the data administrator before the Contracting
Authority is advised that it is necessary to perform such processing for the purpose of performance of the Agreement and the legal grounds for such personal data processing are obtained.
CHAPTER 26.
MISCELLANEOUS
§ 267.
Any correspondence will be sent to addresses specified in the description of the Parties. A
change of address will require notification of the other Party in writing; otherwise the letter
sent to the previous address will be deemed as delivered. Neither Party will be liable for
damages for non-performance or improper performance of its duties caused by the occurrence of force majeure. The Parties undertake to notify each other about force majeure occurrences influencing the performance of the Agreement and when it occurs they will meet to
make the relevant arrangements. The notifications mentioned in the previous sentence will
be made in writing or in another manner available, immediately after force majeure occurs.
§ 268.
Issues not regulated by this Agreement will be governed by the provisions of the Polish law,
in particular Art. 605 and next of the Civil Code and the Act on Copyright and Neighboring
Rights.
§ 269.
The Contractor may use the trademark, company name or commercial name owned by the
Contracting Authority or a similar mark in any materials, including printed materials, envelopes, letterheads, brochures, posters, websites, only after the design of such materials is
submitted to the Contracting Authority for approval and the Contracting Authority approves
the use of the material in the specified manner; such an approval will be made in writing,
otherwise being null and void. If the above undertaking is breached, the Contracting Authority will be entitled to demand contractual penalty of PLN ______ for every event.
§ 270.
The Contractor is not authorized to assign, transfer or encumber its rights or duties arising
out of the Agreement or otherwise aim at disposing of them without prior consent of the ConENERGA–OPERATOR SA
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tracting Authority made in writing, otherwise being ineffective.
§ 271.
Any disputes arising in connection with the Agreement will be resolved by mutual negotiations between the Parties. If the dispute is not resolved within [30] days, the dispute may be
submitted for resolution to the common court with jurisdiction over the Contracting Authority's registered office.
§ 272.
The Parties resolve that in the event of discrepancies between the documents comprising the
Agreement, the Parties will be bound by those documents in the order mentioned below and
the interpretation of the Agreement will be carried out according to that order:
1)
document of the Agreement (without Appendices);
2)
Appendices to the Agreement;
§ 273.
This Agreement has been prepared in two identical counterparts, one for each of the Parties.
§ 274.
Appendices to the Agreement constitute its integral part. The list of Appendices is as follows:
Appendix no [1] – Current Excerpt from the Contracting Authority's National Court Register entry;
Appendix no [2] –Current Excerpt from the Contractor's National Court Register entry;
Appendix [3] – List and Description of Deliverables;
Appendix [4] – Area of Installation;
Appendix [5] – Contractor's Bid;
Appendix [6] – Model Confidentiality Agreement;
Appendix [7] – Coordinators and Contact Details;
Appendix [8] – Schedule; Specification of Delivery Tranches; Delivery Locations;
Appendix [9] – Terms and conditions of warranty / Service Agreements for the Devices
(content of agreements);
Appendix [10] – Subcontractors;
Appendix [11] – Final Verification Criteria;
Appendix [12] – Contractor's Third Party Liability Insurance Policy;
Appendix [13] – Model of Representation of Obligation to Keep the Company Secret of
ENERGA – OPERATOR S.A.
Appendix [14] – Defect Verification Procedure
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Appendix 1 to the Agreement for Delivery of
Metering Infrastructure
Current Excerpt from the Contracting Authority's National Court Register entry
[to be supplemented before signing the Agreement]
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Appendix 2 to the Agreement for Delivery of
Metering Infrastructure
Current Excerpt from the Contractor's National Court Register entry
[to be supplemented before signing the Agreement]
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Appendix 3 to the Agreement for Delivery of
Metering Infrastructure
List and Description of Deliverables
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Appendix 4 to the Agreement for Delivery of
Metering Infrastructure
Area of Installation
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Appendix 5 to the Agreement for Delivery of
Metering Infrastructure
Contractor's Bid
Document containing the Contractor's Bid is stored together with the documentation for the
Procedure by the Contracting Authority.
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Appendix 6 to the Agreement for Delivery of
Metering Infrastructure
Model Confidentiality Agreement
Agreement concluded on [●] in [●] by and between:
I.
[•] with its registered office in [•] on [address], [zip code] [town/city], entered in the business
register of the National Court Register under file no. KRS [•], whose registration documentation is
kept by the District Court for [•], [•]th Commercial Division of the National Court Register, NIP: [•],
REGON: [•], with share capital of PLN [•], hereinafter referred to as _____________ or Manufacturer
represented by:
1. __________________________ – _____________________________
2. __________________________ – _____________________________
- in accordance with current excerpt from the business register constituting Appendix [1] to this
Agreement
and
II.
[•] with its registered office in [•] on [address], [zip code] [town/city], entered in the business register of the National Court Register under file no. KRS [•], whose registration documentation is
kept by the District Court for [•], [•]th Commercial Division of the National Court Register, NIP: [•],
REGON: [•], with share capital of PLN [•], hereinafter referred to as _____________ or Auditor
represented by:
1. __________________________ – _____________________________
2. __________________________ – _____________________________
- in accordance with current excerpt from the business register constituting Appendix [2] to this
Agreement
hereinafter jointly referred to as Parties
Whereas:

According to Agreement for delivery of Metering Infrastructure, concluded on ______________ between Energa-Operator S.A. (hereinafter referred to as Energa-Operator) and _______________,
(hereinafter referred to as Contract), the devices produced by the Manufacturer will be delivered to Energa-Operator and, after their startup, they will become an element of a technological and organizational solution which automates the processes of reading and managing the
data from the Metering Infrastructure (hereinafter referred to as the AMI System),

The Auditor concluded with Energa-Operator, on _________, the agreement for performance of
security audit of the AMI System (hereinafter referred to as Agreement for Audit) whose subject matter includes delivering to Energa-Operator the detailed and complete information on
the actual level of safety of the AMI System, and formulating and delivering to Energa-Operator
the detailed recommendations for optimization of the security level of the AMI System (hereinafter referred to as Audit),
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
The Auditor will be obligated, as part of performance of the Audit, to examine the devices produced by the Manufacturer and used by Energa-Operator from the standpoint of ICT security,
and thereby it may gain access to information constituting the Manufacturer's company secret,

The purpose of the Parties is to guarantee the preservation of the Manufacturer's company
secret in connection with the Audit while at the same time enabling the Auditor to present the
Audit results to Energa-Operator,
Now therefore the Parties conclude the following Agreement:
1. CONFIDENTIAL INFORMATION
1.1. Confidential Information includes any technical, technological, financial, legal, commercial and
organizational information about the Manufacturer obtained from the Manufacturer as part of
the Audit, and also other data and information, provided that they have economic value to the
Manufacturer, if it took necessary actions to maintain their confidentiality, regardless of the
form in which they were recorded or transmitted.
1.2. The obligations arising out of this Agreement do not apply to information which:
1.2.1. must be disclosed due to absolutely binding provisions of law or on the basis of the
demand of the relevant authorities or bodies, or whose disclosure is necessary for
launching or conducting the civil procedure, administrative criminal procedure or other similar procedure, or
1.2.2. has been provided to the Auditor by a third party without breaching any non-disclosure
obligation toward the Parties, or
1.2.3. has been publicly disclosed without breaching the provisions of this Agreement or is
publicly known at the time of its disclosure or will be later publicly disclosed or will become publicly known with no fault on the part of the Auditor, or
1.2.4. had been known to the Auditor before it was disclosed by the Manufacturer or obtained
in the course of the Audit, or
1.2.5. has been disclosed to the Auditor by a third party which did not obtain this Confidential
Information from the Manufacturer.
2. USAGE OF CONFIDENTIAL INFORMATION
2.1. The Auditor covenants to use Confidential Information exclusively for the purpose of carrying
out the Audit. The Auditor covenants not to disclose Confidential Information to any third party or other entity without Manufacturer's consent granted in writing, otherwise being null and
void, with the reservation of the following cases:
2.2. The Auditor may provide the results of the conducted Audit to Energa-Operator, which include Confidential Information, in particular results of analyses, circumstances and methods
of conducting them, recommendations, conclusions and premises taken into account by the
Auditor when formulating them. This does not apply to Confidential Information concerning
directly the audited elements of devices produced by the Manufacturer, including source
codes and the software contained in them.
2.3. The Auditor covenants to ensure that Confidential Information provided to Energa-Operator
in accordance with the previous item will be used by Energa-Operator only in connection with
the performance of the Contract or the Agreement for Audit and it will not be made available
by Energa-Operator to third parties, and:
2.3.1. The Manufacturer gives its consent for the Confidential Information provided to Energa-Operator to be made available to Energa-Operator's legal and business advisors, for
the purposes associated with performance of the Contract or the Agreement for Audit.
2.3.2. The Manufacturer gives its consent for provision of Confidential Information, which
was provided to Energa-Operator, in the course of execution of obligations arising out
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of the absolutely binding provisions of law, in particular execution of obligations towards entities authorized to supervise or inspect Energa-Operator's activity or inspect
the devices produced by the Manufacturer (in particular the Energy Regulatory Office,
the Central Office of Measures, the Office of Electronic Communications, the Inspector
General for the Protection of Personal Data and other authorized public administration
bodies), and the Auditor guarantees that in such cases Energa-Operator will take any
necessary and legal measures to protect the Manufacturer's Confidential Information
from unauthorized access.
2.3.3. The Auditor may disclose and provide Confidential Information to its employees (employed on the basis of employment contract, civil law agreement or self-employed) and
the subcontractors only if such disclosure is necessary for the purpose of performance
of the Audit, on the condition that the Auditor:
2.3.4. advises the entities to which it has provided the information in question about confidentiality obligation;
2.3.5. concludes with these entities the agreements obligating them not to use or disclose
Confidential Information, as stipulated in this Agreement;
2.4. The Auditor covenants not to copy Confidential Information unless this is necessary for the
purpose of carrying out the Audit.
2.5. The Auditor covenants to secure the Manufacturer's Confidential Information obtained by it
from access of unauthorized persons at least to the same extent to which it secures its own
company secret.
2.6. In the event of termination of the Agreement or its expiration, the Auditor covenants to immediately return the materials containing Confidential Information along with their copies
and, at the written demand of the Manufacturer, to immediately destroy the materials containing Confidential Information and their copies.
2.7. If the Auditor breaches the terms and conditions of this Agreement, the Auditor will pay the
Manufacturer the contractual penalty of PLN 100,000.00 (in words: one hundred thousand
zloty) for each such breach, regardless of the possibility for the Manufacturer to pursue damages on general principles if their amount exceeds the amount of contractual penalty.
2.8. Nothing contained herein shall be construed as an express or implied granting of any rights to
any information covered by the Manufacturer's exclusive rights.
3. MISCELLANEOUS
3.1. Any and all amendments to this Agreement shall be made in writing, otherwise being null and
void.
3.2. This Agreement goes into effect on the date of its signing, is concluded for the term of 10 (ten)
years and it may be terminated before elapse of that period only by mutual understanding of
the Parties made in writing, otherwise being null and void.
3.3. The Agreement has been prepared in two identical counterparts, one for each of the Parties.
3.4. There are following appendices to this Agreement:
Appendix 1
Excerpt from the Manufacturer's National Court Register entry,
Appendix 2
Excerpt from the Auditor's National Court Register entry.
______________________________________________
for the Auditor
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Appendix 7 to the Agreement for Delivery of
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Coordinators and Contact Details
[to be supplemented before signing the Agreement]
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Appendix 8 to the Agreement for Delivery of
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Schedule;
Specification of Delivery Tranches;
Delivery Locations;
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Attachment no. 1 to ToR
Model Agreement
Procedure no. P/___/AZU/…………… /12
Appendix 9 to the Agreement for Delivery of
Metering Infrastructure
Terms and conditions of warranty / Service Agreements for the Devices
(content of agreements)
[to be supplemented before signing the Agreement]
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Model Agreement
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Appendix 10 to the Agreement for Delivery of
Metering Infrastructure
Subcontractors
[to be supplemented before signing the Agreement]
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Attachment no. 1 to ToR
Model Agreement
Procedure no. P/___/AZU/…………… /12
Appendix 11 to the Agreement for Delivery of
Metering Infrastructure
Final Verification Criteria
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Attachment no. 1 to ToR
Model Agreement
Procedure no. P/___/AZU/…………… /12
Appendix 12 to the Agreement for Delivery of
Metering Infrastructure
Contractor's Third Party Liability insurance policy
[to be supplemented before signing the Agreement]
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Attachment no. 1 to ToR
Model Agreement
Procedure no. P/___/AZU/…………… /12
Appendix 13 to the Agreement for Delivery of
Metering Infrastructure
Model of Representation of Obligation to Keep
Company Secret of ENERGA – OPERATOR S.A.
Obligation to keep "Company Secret"
(town/city, date)
(first and last name or company
name)
(address)
Obligation
1. I undertake an obligation to maintain "Company Secret" of ENERGA – OPERATOR S.A. with respect
to information provided to me in connection with performance of the task contemplated in the
agreement for delivery of Metering Infrastructure to Energa-Operator S.A., case no. ________, dated
________ 2012.
2. This obligation constitutes an integral part of the agreement specified in item 1.
3. I acknowledge that if I breach the Company Secret, this will constitute the basis for liability on the
principles set forth in chapter 4 – provisions of the Act of 16 April 1993 on Combating Unfair Competition concerning criminal matters (consolidated version in Journal of Laws of 2003, No. 153 item
1503, as amended).
.....................................................................
(legible signature)
I familiarized myself with the content of the document constituting "Company Secret" of ENERGA –
OPERATOR S.A.
.................................
(date)
..........................................................
(legible signature)
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Attachment no. 1 to ToR
Model Agreement
Procedure no. P/___/AZU/…………… /12
Appendix 14 to the Agreement for Delivery of
Metering Infrastructure
Defect Verification Procedure
In the event of ascertaining the loss of acquisition from the balancing area, the Contracting Authority will
verify the statistics of concentrator errors in the AMI application:
a)
b)
Checks the operation of the Intermediating Infrastructure

If the connection does not function correctly, the Contracting Authority will forward the connection
to be checked by the relevant Supplier of Intermediating Infrastructure.

if the connection functions correctly, the Contracting Authority will check ZKB
Checks the operation of ZKB
If we ascertain lack of communication with the concentrator, before sending the area to be verified
by the Contractor the Contracting Authority will change the status of the AMI application.
The Contracting Authority from the TOO Management Department generates an instruction for EOPTOO to check the correctness of the Ethernet connection in the balancing module between the
communication modem and the concentrator.
If the connection functions correctly and the concentrator displays the "ETH" correct operation signal, the Contracting Authority performs "hard memory reset" of the concentrator.
After performing the foregoing tasks and after elapse of 24 hours, CZW will verify the correctness of
acquisition in the AMI application. If the actions taken were ineffective, CZW once again changes the
status in the AMI application and sends the area to be verified by the Contractor.
If the connection is correct and there is no correct "ETH" signal on the concentrator, CZW once again
changes the status in the AMI application and sends the area to be verified by the Contractor.
The Contracting Authority will provide the Contractor with access to the application allowing ongoing analysis of acquisition of data from the balancing area.
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