AGREEMENT No. _______
made and entered into this _____ day of ____________, 2015 in Tel Aviv, Israel
(hereinafter the “Effective Date”)
between
Israel Railways Authority, Ltd.
Company No. 52-004361-3
P.O. Box 18085
Tel Aviv 61180, Israel
(hereinafter “ISR”)
of the first part
and
(hereinafter “Supplier”)
of the second part
ISR and Supplier each referred to hereinafter as a "Party" and collectively as the
"Parties."
WHEREAS
ISR wishes to purchase Break Testing Devices with Automatic Testing
Procedure (the "Devices") as further specified in this Agreement along with
its Appendixes; and
WHEREAS
ISR has published Tender No. 41501 requesting proposals for the
manufacture and supply of the Devices (the “Tender”); and
WHEREAS
the proposal submitted by Supplier in the Tender was selected as the
winning proposal; and
WHEREAS
Supplier represents and warrants that it has the know-how, ability, expertise,
facilities, financial and all other resources, experience, Intellectual Property
Rights, and all rights and permits necessary to undertake the obligations set
forth in the Tender and as described in this Agreement herein; and
WHEREAS
the Parties desire to set forth a contractual framework to determine the
Parties’ relationship and obligations with regards to the manufacture and
supply of the Devices as aforesaid.
NOW THEREFORE, IT IS DECLARED, COVENANTED AND AGREED
BETWEEN THE PARTIES AS FOLLOWS:
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1. Preamble, Appendices and Headings
1.1 The preamble to this Agreement constitutes an inseparable part hereof.
1.2 The following appendices, which are attached to this Agreement, constitute
inseparable parts hereof:
a)
b)
c)
d)
e)
f)
g)
h)
Appendix A – Technical Specification;
Appendix B - Consideration
Appendix C- Spare parts & Price List
Appendix D - Form of Performance and Warranty Guarantee
Appendix E - Form of Payment Guarantee
Appendix F - Supplier's Bank Account Form
Appendix G - Acceptance Certificate
Appendix H - Change Order Form
1.3 The headings in this Agreement are for reference purposes only, and are not
a material part hereof and shall not be used for purposes of interpretation.
2. Order of Precedence and Interpretation
In the case of any discrepancy between this Agreement and the technical
specification, this Agreement shall prevail.
3. Definitions
The following definitions shall apply to this Agreement:
3.1 "Acceptance" or "Acceptance Certificate" – shall have the meaning
ascribed to it in Section ‎9.11 and Appendix G.
3.2 "Agreement" – shall mean this agreement including all appendices attached
hereto.
3.3 "Agreement Period" – shall have the meaning ascribed to it in Section ‎5.
3.4 “Business Day” – means any day of the week other than Saturday or
Sunday, and excluding official holidays and bank holidays in Israel.
3.5 "Change Order" – shall have the meaning ascribed to it in Section ‎5
3.6 “DAP” – shall mean Delivered at Place as that term is defined in
"INCOTERMS 2010" - ICC Rules for the Use of Domestic and International
Trade Terms (ICC Pub. No. 715).
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3.7 "Down Payment Guarantee" – shall have the meaning ascribed to it in
Section ‎16.1.2.
3.8 "Effective Date" – shall have the meaning ascribed to it in the Preamble to
this Agreement.
3.9 "Order" – An order issued by ISR to the Supplier for a Device
3.10 "Site" – as defined in section ‎9.1 herein.
3.11 "Technical Specifications" – the technical specifications for the Devices,
are as detailed in Appendix A.
3.12 "Liquidated Damages" – shall have the meaning ascribed to it in Section
‎5.
3.13 "Spare Parts" – shall have the meaning ascribed to it in Section ‎5.
3.14 "Warranty" or "Warranty Period" – shall have the meaning ascribed to
it in Section 14.
4. Declarations, Representations and Warranties of the Supplier
4.1 Supplier specifically declares, represents and warrants that it has the know-how,
ability, expertise, facilities, resources, financial resources, licenses, permits and all
that is required and necessary to undertake the obligations set forth in this
Agreement, including, inter alia, the provision of the Devices in accordance with
the terms set forth herein.
4.2 Authority Relative to this Agreement - Supplier has all necessary corporate power
and authority to execute and deliver this Agreement, to perform its obligations
under this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action of Supplier, and no other corporate proceedings on the part of
Supplier are necessary to authorize this Agreement, or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Supplier and constitutes a valid, legal and binding
agreement of Supplier, enforceable against Supplier in accordance with its terms.
4.3 No Conflict - No actual or potential conflict of interest or unfair competitive
advantage as to ISR exists with respect to Supplier's acting hereunder, and
Supplier shall not engage in any contractual relationship that may cause such
conflict of interest or unfair competitive advantage to exist.
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4.4 No Litigation or Impediment. There are no (i) litigation that is currently in effect
or threatened, against Supplier, which would challenge the authority of Supplier to
enter into this Agreement or to carry out its obligations under this Agreement, or
(ii) impediment, whether legal or stemming from a prior or simultaneous
commitment made by Supplier, or any other impediment of whatever nature,
which might prevent Supplier from entering into this Agreement or hinder the
performance of any or all of its obligations hereunder.
4.5 Supplier's Examination and Evaluation
Supplier hereby represents and warrants to ISR that:
4.5.1
Supplier has examined all documents pertaining to the Tender, this
Agreement, in particular the Technical Specifications, as well as all other
documents comprising the Agreement, and is satisfied with regard to the
data, specifications, terms and conditions under which the Devices shall be
designed, manufactured, assembled, integrated, tested, supplied and
delivered to ISR, the execution of the Works required for the provision of the
Devices as well for the fulfillment for any and all obligations under this
Agreement;
4.5.2
Supplier has evaluated (independent of, and without relying on, any
information or data provided by ISR) any and all other factors that may be
deemed to affect the carrying out of its obligations under this Agreement,
including but without limitation technical risks and environmental
influences, and any other risk involved therewith, and such other conditions
that may be expected to affect the progress or completion of the Works in
accordance with this Agreement, and has reasonable grounds to believe and
does believe that such performance is feasible and practicable under the
terms and conditions stated herein;
4.5.3
Supplier has examined and is fully satisfied with all of the information
provided to it by ISR, including ISR’s rules and procedures;
4.5.4
Supplier shall not be entitled to any payment or compensation other than as
set forth herein and shall not make any claim for additional payment from
ISR on any grounds whatsoever, including, without limitation, on the
grounds of any misunderstanding or misapprehension in respect of any
matter which a reasonable and expert supplier of Devices knew or should
have known or on the grounds of any allegation or fact that incorrect
information was given to Supplier by any person (subcontractors included),
firm or any legal entity which it knew or should have known to be incorrect
as a reasonable and expert supplier of Devices, whether the person, firm or
legal entity was employed by ISR or not, or on the grounds of the failure on
its part to obtain correct information with regard to the Agreement.
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4.6 Supplier accepts that it bears the risk in relation to any information provided (or
not provided) by ISR or on its behalf to Supplier (notwithstanding that Supplier
was unable to verify the accuracy of such information). Supplier confirms that any
attachments to this Agreement and any documents provided to it by ISR are
provided strictly on an "AS IS" basis.
4.7 No Additional Payments - Supplier shall make no claim for additional payment
from ISR (A) on the grounds of any misunderstanding or misapprehension in
respect of any matter which a reasonable and expert Supplier knew or should have
known, (B) on the grounds of any allegation or fact that incorrect information was
given to Supplier by any person, firm or any legal entity which Supplier knew or
should have known to be incorrect as a reasonable and expert Supplier, whether
the person, firm or legal entity was employed by ISR or not, (C) on the grounds of
the failure on its part to obtain correct information with regard to the Services.
4.8 Compliance with Applicable Law - Supplier is aware and has knowledge of all
legal requirements prevailing in the State of Israel that are to be followed for the
execution of the Services. Without derogating from any provision herein, Supplier
shall abide by any Applicable Law, as shall be in effect from time to time, and
shall perform and execute the Services in strict compliance therewith (including
but without limitation in compliance with regulations and orders relating to the
employment of its employees).
5. Term of Agreement
5.1 The term of this Agreement shall be for three (3) years from the Effective
Date (the “Agreement Period”).
5.2 ISR shall have the option, to be exercised at its sole discretion, to extend the
Agreement Period by additional periods (or part) of up to three (3) years in
total, and in such case, the terms and the conditions of the Agreement shall
remain unchanged (the "Option Period(s)").
6. Purchase Requirement
6.1 Subject to the Supplier's fulfillment of all of its obligations pursuant to this
Agreement, and subject to the conditions of this Section ‎6, ISR hereby
undertakes to make a minimum purchase of five (5) Devices (the "Minimum
Amount").
6.2 Notwithstanding the above, ISR's obligation to purchase shall cease and have
no further effect in the event that Supplier commits a fundamental breach of
this Agreement and/or fails to comply with the terms hereof.
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6.3 ISR intends to issue a Purchase Order for five (5) Devices (the "Initial
Purchase Order") within three (3) months from the effective date of the
Agreement subject to the terms and conditions set forth herein.
6.4 Additionally, during the Agreement Period, ISR, in its sole discretion, shall
have the option (but shall not be obligated) to purchase from the Supplier
additional Devices ("Optional Devices"). The relevant terms and conditions
detailed in this Tender, including its Appendices, shall apply, mutatis
mutandis, to the Optional Devices
6.5
7. Supplier’s Obligations
7.1 Without derogating from any of the Supplier’s obligations in accordance
with this Agreements, the Supplier hereby undertakes to supply, during the
Agreement Term, all facilities necessary for the full operation and
maintenance with the Technical Specifications, common railway practices
and any applicable standards, so as to enable ISR to correct any malfunction
of the Devices as promptly as possible so as to minimize the effect thereof
on ISR’s train traffic, in accordance with the terms and conditions detailed
herein.
7.2 The Supplier shall supply the Devices in accordance with the standards set
forth by ISR in the Technical Specifications and/or this Agreement, and if no
standard is expressly mentioned, the Supplier shall comply with the
standards which shall ensure the highest quality of workmanship, material
and equipment required by the applicable law and/or as instructed by ISR in
accordance with ISR's sole discretion. All Devices shall be new, of high
standard and quality, free of, and not reported by third parties to suffer from,
defects in design, material or workmanship, and shall perform in accordance
with all of the requirements of this Agreement. All calculations, designs,
integration and drawings related to the Devices shall assure the reliability,
efficiency, competency as well as the functionality of the Devices (once
installed) to ISR's fullest satisfaction.
7.3 Subject to the provisions of Section ‎6, ISR, in its sole discretion, shall decide
which Devices it wishes to acquire from Supplier, if any, and in which
quantities.
7.4 This Agreement is non-exclusive and ISR, in its sole discretion, may acquire
similar or identical Devices from any third party at any time, in addition to or
in place of, the Devices it acquires from Supplier. Without derogating from
the Supplier's obligations hereunder, ISR shall be entitled at any time to
purchase Devices either directly from Supplier or from any third party,
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including without limitation, suppliers of same and Supplier shall not be
entitled to any payment for same.
7.5 Nothing in this Agreement shall derogate from any of the rights, options or
remedies of ISR under any law.
8. Purchase and Order of Devices
8.1 ISR may, from time to time, in its sole discretion and pursuant to the terms
and conditions herein, issue Orders, to the Supplier for the supply of
Devices, all on a non-exclusive basis.
8.2 Each Order for Devices shall be sent by email / facsimile to the Supplier
Representative and shall include the following information:
a) ISR’s Order number;
b) The quantity and description of the Devices ordered; and
c) The place of delivery of the Devices (which shall be at the Site unless
specified otherwise in the Order).
8.3 Upon receipt of an Order placed by ISR, the Supplier shall acknowledge
receipt of such Order by facsimile to ISR, through the ISR Devices
Representative, within three (3) Business Days.
8.4 ISR’s Order number shall be noted on all correspondence between the parties
regarding such Order.
9. Terms of Delivery and Delivery Time of Devices
9.1 The terms of supply and delivery of the Devices shall be “DAP” "Delivery at
Place" (as that term is defined in Inco-terms 2010, International Rules for the
Interpretation of Trade, ICC Publication No. 715) at ISR's site, as determined
solely by ISR in the time of the Order (the “Site”).
9.2 The time of delivery for the supply of the Devices shall not exceed six (6)
months DAP at Site from the issuance of a Purchase Order (“Delivery
Time”).
9.3 The Supplier shall be fully responsible, at its sole cost, to ensure safe, lawful
and expedient delivery of all Devices from their respective places of origin
to the Site. It is hereby clarified between the Parties that the Supplier shall
not recover any sums expended for the payment of any unloading fees and/or
costs at the destination and/or Site.
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9.4 Notwithstanding the above, the Devices shall be considered delivered only
once Supplier has un-stuffed and placed them at the Site, and they are ready
for use by ISR.
9.5 It is hereby clarified that containers may not arrive at the Site and the
Supplier may not perform any un-stuffing and/or unpacking of containers at
the Site or on ISR's premises. The Supplier shall be solely responsible for the
transfer of the Devices to the Site after un-stuffing of containers.
9.6 Supplier shall be fully responsible, at its sole cost, to monitor the progress of
all outstanding Orders.
9.7 Without derogating from Supplier's obligations and responsibilities as
detailed herein, upon shipment of Devices in fulfillment of any Order,
Supplier shall provide ISR with the tracking number of such shipment to
enable ISR to monitor the shipment.
9.8 Each delivery shall be marked with ISR’s Order number and a delivery note
specifying the part number for each item of Devices included in the Order.
9.9 All Devices shall be appropriately packed in a container or other means
suitable for export and shall be capable of withstanding rough handling and
ocean shipment. The Supplier, in its sole discretion, may decide to deliver
the Devices via airfreight at its own expense.
9.10 The following original documents regarding each Order shall be supplied to
ISR by Supplier within (5) five calendar days from the shipment date
thereof. A copy of all such documents shall also be sent to ISR via
facsimile. These documents must be solely in ISR’s name and shall state
ISR's exact name.
a) Commercial Invoices The invoices shall make reference to this
Agreement, the Devices ordered including part numbers, serial numbers,
quantities, delivery note number, shipping dates, Supplier’s company
registration number and ISR’s Order number;
b) Bill(s) of Lading;
c) Packing Lists;
d) All other information and documents necessary to release the Devices
from the designated port in an expeditious manner and to enable ISR to make
payment in foreign currency pursuant to the regulations of the Bank of
Israel;
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9.11 Upon delivery of each Order of Devices, ISR shall provide the Supplier with
written confirmation of receipt and acceptance of the Devices, it being
clarified that such written acceptance (including after the conduct of any
inspections in accordance with Section ‎10)("Acceptance Certificate") does
not constitute a waiver on the part of ISR or an acknowledgement by ISR of
the quality of such Devices, and does not derogate from any of the Supplier's
obligations as detailed herein, including without limitation, with respect to
warranty.
10. Changes
10.1 ISR reserves the right to alter the Technical Specifications ("Change"). The
Supplier shall be notified of such alterations in writing by ISR ("Change
Order"). Any Change Order shall specify a date following which the
Devices shall be constructed and delivered in accordance with the amended
Technical Specifications.
10.2 The price for any Changes included in the Change Order which is a
supplement or addition of parts or systems used elsewhere in the Devices or
which are included in the Spare Parts List attached hereto as Appendix C,
shall be no higher than the price applied to such Devices or parts therein.
10.3 Within ten (10) Business Days from receipt of a Change Order, the Supplier
shall provide ISR with a written confirmation and, if applicable, shall state
requested changes to the Devices Price, Delivery Time, and any other terms
relevant to the provision thereof.
10.4 Following receipt of the Supplier's request for Changes as detailed in Section
‎10.3, the Parties shall, in good faith, review the Changes and any changes to
the Devices Price and Delivery Time requested by the Supplier.
10.5 In the event that the Supplier objects to any Change Order or any part
thereof, on the grounds that it may affect safety or structural soundness of
the Devices, and notwithstanding said objection, ISR shall provide the
Supplier with a written order to proceed with the Changes, the Supplier shall
proceed to amend the Devices as required, and in any event shall not be
relieved of any obligation or liability arising from poor or faulty
workmanship, negligence, errors, omissions, etc.
10.6 The Changes will be incorporated in the Devices, only after and to the extent
that the Parties have agreed as to their impact on the Devices Price and
Delivery Time. Such agreement shall be set out in writing in a Change Order
Form (attached hereto as Appendix H) signed by both Parties.
10.7 Should the Supplier, at any time during the construction of the Devices,
determine in its judgment that there are existing conditions which demand
and/or make desirable or beneficial a modification in the requirements
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covering any particular item, then it shall promptly report in writing any such
finding to ISR to obtain its decision and instruction, at the sole discretion of
ISR.
11. Inspection and Acceptance of the Devices
11.1 ISR, in its sole discretion, shall have the right (but not the obligation) to have
any or all of the Devices supplied to it pursuant to this Agreement inspected
in order to ensure that such Devices are satisfactory and in compliance with
the Technical Specifications.
11.2 ISR, in its sole discretion, may elect to have such inspections carried out by
ISR’s engineering inspectors or by any third party, provided however that
the costs related to such inspections will be borne by ISR.
11.3 If an inspection reveals that any item of Devices does not comply with the
Technical Specifications or if any of the materials or components is
discovered to be defective or inferior in quality, ISR may reject the said
Devices.
11.4 If ISR finds the inspected Devices to be satisfactory and in compliance with
the relevant Technical Specifications, ISR shall accept such Devices and
notify Supplier of the same.
11.5 If ISR, in its sole discretion, has elected to inspect any order of Devices or
part thereof, such Devices shall only be considered delivered once ISR has
accepted them.
12. .Liquidated Damages
12.1 Without prejudice to any other relief or remedy available to ISR under this
Agreement or under law, in the event that the delivery of the Devices or any part
thereof is delayed beyond the specified Delivery Time and/or in the event of any
other delay in fulfilling any undertaking of the Supplier pursuant to this
Agreement, the Supplier shall pay ISR Liquidated Damages in the sum equal to
one-half percent (0.5%) of the value of the Devices Price for each calendar week
of delay, or any part thereof ("Liquidated Damages"). The Liquidated Damages
shall not exceed a total of seven and half percent (7.5%) of the value of the
consideration specified in this Agreement.
12.2 The Liquidated Damages in this Agreement have been determined after due
consideration of the damages the parties anticipate that ISR will suffer under the
specific circumstances to which each specific type of liquidated damage apply,
and therefore they shall not be regarded as a penalty. Payment of the Liquidated
Damages shall not be conditioned on ISR having to present evidence of any loss.
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13. Spare Parts
13.1
Without derogating from its warranty obligations as detailed herein and in
the Agreement, the Supplier shall undertakes that all Devices ordered by ISR will
be delivered with spare parts sufficient for two (2) years of operation, at no
additional cost. In addition, the Supplier undertakes that during the Agreement
Period and thereafter until fifteen (15) years from the end of the Warranty Period
for the last Device ordered pursuant to the Agreement (as set forth herein), it will
supply ISR with all spare parts and tools necessary to maintain and repair the
Devices (the “Spare Parts”). Following such fifteen (15) years period, if a spare
part is no longer available on the market the Supplier will offer ISR an adequate
substitute at a comparable price.
13.2
The Supplier includes a list of all necessary and recommended Spare Parts
and their prices, in the form attached hereto as Appendix C (the “Spare Parts
List and Prices”). The Spare Parts List and Prices shall be in English or Hebrew
and shall quote the delivery time, description, original manufacturer's name, part
number of original manufacturer and the prices DAP (ISR’s Site) for each Spare
Part, which shall remain fixed for a period of two (2) years from the Final
Submission Date.
13.3
As from the 2nd anniversary of the Final Submission Date, the Spare Parts
List and Prices shall be adjusted once a year as linked to the European Consumer
Price Index (HICP E27 - Overall index, Monthly Index, (2005=100) as published
at Eurostat website:
http://epp.eurostat.ec.europa.eu/portal/page/portal/hicp/data/database ("HICP").
13.4
The basic index for the HICP shall be the last known index on the Final
Submission Date.
14. Warranty
14.1
The Supplier shall provide a Warranty and perform Warranty Services with
regard to the Devices as such terms are defined in the Agreement, and in
accordance with the provisions set forth therein.
14.2
Each Device shall be fully warranted by the Supplier for a period of two (2)
years commencing on the day that an Acceptance Certificate (as defined in the
Agreement) was issued in respect of the Device (the "Warranty Period").
14.3
The cost of the Warranty and the provision of the Warranty Services,
including the costs of spare parts needed for such repair or replacement, labor,
required equipment and any other cost related thereto, shall be borne and paid
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solely by the Supplier, and be considered as part of the Devices Price for the
Devices.
15. Consideration
15.1
.
The consideration payable for the manufacture and supply of the Devices
including all ancillary services, warranty and equipment as required for the
delivery, testing or as otherwise required for fulfillment of the Supplier's
obligations under this Agreement in accordance with the terms and
conditions thereof, to be paid by ISR to Supplier, shall be as set forth in
Appendix B (collectively hereinafter referred to as: the “Devices Price”)
15.2 Without derogating from Section ‎15.1, it is hereby clarified that Supplier
shall bear and pay (by way of reimbursement to ISR where applicable) all
taxes, fees, customs, duties, levies, charges (including bank charges and
commissions), and all other expenses relating to, or in connection with the
manufacture, exportation, supply, delivery of the Devices, including but not
limited to all types of importation and custom duties and services, such as
transportation costs, customs agents’ fees, purchase tax (in Hebrew "Mas
Kniya" or "‫) "מס קניה‬, Israeli customs duties, port handling fees (in Hebrew
"Dmei Nitul" or "‫) "דמי ניטול‬, port infrastructure fees (in Hebrew "Dmei
Tashtit" or "‫) "דמי תשתית‬, cleaning of the containers, unstuffing and
unloading of the containers, etc. Any porterage and local forwarding agent
fees and Israeli customs duties, if applicable, shall be considered as part of
the Devices Prices and shall be borne solely by Supplier.
15.3 Notwithstanding any other provision herein, Israeli Value Added Tax, if
applicable to the provision of any Devices, shall be borne by ISR.
15.4 In the event that ISR shall be required to pay any of the payments related
to import and release from customs, ISR shall charge the Supplier
accordingly (excluding Israeli Value Added Tax).
15.5 The Devices Prices include any sum which the Israeli Tax Authorities
require to be withheld at source. The amounts required by the applicable law
to be withheld at source by the Israeli Tax Authorities shall be deducted from
the Devices Prices, and shall be paid directly to the Israeli Tax Authorities.
15.6 The Supplier hereby commits that the Devices Prices shall not be adjusted
for at least two years from the Effective Date, or, in the case of a New
Device, for at least two years from the time such New Device is added to the
Devices List. After such time, the Devices Prices shall be updated annually,
on the same date as the Effective Date, based on linkage to the HICP Index.
The Supplier shall provide ISR with an updated Devices List that include the
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updated prices each year and the updated prices shall apply to Orders issued
30 days following the receipt of such updates.
16. Terms of Payment
Payment by ISR to Supplier shall be on a per-order basis and shall be as
follows:
16.1 A down payment of fifty (20%) percent of the Devices Price payable shall
be paid to Supplier within sixty (60) calendar days following the Supplier's
receipt of a Purchase Order by ISR (the “Down Payment”), provided that
Supplier has provided ISR at least forty-five (45) calendar days prior with all
of the following:
16.1.1 An invoice in the amount of the Down Payment; and
16.1.2 A payment guarantee in the form set forth in Appendix E in the
amount of the Down Payment (the “Down Payment Guarantee”).
The Down Payment Guarantee shall remain in force until thirty (30)
calendar days following the issuance of a Acceptance Certificate by
ISR; and
16.1.3 A Performance and Warranty Guarantee.
16.2 The remaining balance of eighty percent (80%) of the remainder of the
consideration payable shall be paid, relatively, per delivery and successful
Acceptance tests of each device, within sixty (60) days following the
issuance of Acceptance Certificate for the vehicle providing that Supplier
has provided ISR at least forty-five (45) calendar days prior to the payment
with all the following:
16.2.1 An invoice in the amount of the Purchase Order, as applicable, as part
of the remaining balance;
16.2.2 The Acceptance Certificate, signed by ISR.
16.3 Payments under this Agreement shall be made to the Supplier by means of
a bank transfer to the Supplier’s bank account as specified in the Supplier's
Bank Account Form attached hereto as Appendix F.
17. Authorized Representatives
The Authorized Representatives of the Parties shall be as follows:
17.1 "ISR Devices Representative Mr./Ms. _______________________":
Israel Railways
Rolling Stocks Division
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Purchasing and Logistics Dept. Manager
Israel Railways Ltd.
1 Hacharoshet
P.O. Box 10062
Haifa Bay 26111 Israel
telephone no.: +972-4-856-4601
facsimile no.: +972-4-856-4636
e-mail: baruchl@rail.co.il
17.2 "Supplier Devices Representative":
_________________________
telephone no.:______________
facsimile no.:_______________
e-mail:___________________
[to be completed by Supplier]
Either Party may change its authorized representative upon written notice
to the other Party.
18. Quality Management System
During the Agreement Term, Supplier must remain certified in accordance with
ISO 9001 and/or equivalent standards and shall provide ISR with evidence
thereof. In any event, Supplier shall immediately notify ISR if the said
certification is suspended and/or canceled and/or not continued as soon as
practicable and in any event within no more than seven days from such event.
19. Insurance
19.1 Without derogating from any of the Supplier's responsibilities and
liabilities under this Agreement and/or the Main Agreements and/or under
any applicable law, the Supplier shall maintain, at its own expense, at all
times for as long as any liability under this Agreement may exist, insurance
policies from reputable insurers, which shall include at least the following:
19.1.1 Property Insurance covering any loss or damage arising out of, or
caused by any risk in respect of the manufacture and/or supply of the
Devices, Spare Parts and any related tools and any other equipment.
The insurance policy shall cover the complete manufacture and
replacement value of the Devices and the Spare Parts as well as any
other equipment abovementioned brought. The policy shall include a
waiver of subrogation towards ISR, and/or the Israeli Government
and/or anyone acting on the behalf of all the above mentioned,
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provided that the waiver of subrogation does not apply in favor of a
person who has maliciously caused the damage. In respect of loss or
damage to the Devices, the insurance benefits shall be paid to the ISR
exclusively.
19.1.2 Marine "All Risk" Insurance for the Devices and the Spare Parts at
their full replacement value, including an at 110% (one hundred and
ten percent) of its DAP value during transport thereof, and any related
tools and any other equipment brought to ISR’s Site, in the joint names
of ISR and Supplier, against any loss or damage to the Devices and the
Spare Parts arising out of, in course of, or caused by any risk in respect
of the Devices. The policy shall include a waiver of subrogation
towards ISR, and/or the Israeli Government and/or anyone acting on
the behalf of all the above mentioned, provided that the waiver of
subrogation does not apply in favor of a person who has maliciously
caused the damage. In respect of loss or damage to the Devices, The
insurance benefits shall be paid to the ISR exclusively.
19.1.3 A worldwide Third Party Liability Insurance, in the joint names of ISR
and Supplier subject to a "Cross Liability" clause, covering any
liability (including Product) of the Supplier and/or whoever act on its
behalf, for any loss or damage derived from the execution of this
Agreement and/or from any act or omission of Supplier and/or
whoever act on his behalf.
19.2 The Supplier's insurances required under this section are primary and
precedent to any of ISR and/or the Israeli Government’s insurances, and the
Supplier's insurers shall waive their right to contribution from any of ISR
and/or the Israeli Government’s insurers with respect to any damage covered
by the Supplier's insurance policies.
19.3 The Supplier shall refrain from canceling the insurance policies and/or
from decreasing their scope. The Supplier further undertakes to notify ISR of
any situation of cancellation and/or expiration of any of the insurance
policies specified in this section, sixty (60) days before the date of
occurrence of such situation.
19.4 The Supplier represents and warrants that it shall not have any claims,
demands and/or actions against ISR and/or anyone on its behalf and/or the
Israeli Government, concerning damage to its property or other property
used in connection with this Agreement. The foregoing shall not apply for
the benefit of anyone who caused damage with malicious intent.
19.5 The Supplier waives and shall have no claims or demands of any kind
against ISR and/or anyone on its behalf, with respect to the content and/or
extent and/or coverage of the insurance policies required to be purchased by
it under this section, and the Supplier hereby confirms that it shall be
15
prevented from raising any such claim or demand. For the avoidance of
doubt, it is agreed that the insurance policies required to be purchased under
this section, including the limits specified herein, are stated as a minimal
demand from the Supplier. The Supplier is encouraged to further scrutinize
its exposure to liability and to add and/or increase the types and scope of
insurance coverage.
19.6 The Supplier undertakes to indemnify ISR for any amount incurred by ISR
as a result of a violation by the Supplier (and/or any person or entity acting
on its behalf) of any of the conditions of its insurance policies.
19.7 It is hereby clarified and agreed that all the insurance policies required in
accordance with this Agreement shall be procured at the Supplier's expense
and that under no circumstances shall the duty to procure such incur
expenses and/or any duty for payment on ISR. It is also clarified and agreed
that the liability for the payment of the insurance deductible applies to the
Supplier only and under no circumstances to the ISR.
19.8 It is clarified and agreed that insurance payments shall not derogate from
the Supplier's liability under the Agreement and/or under any law, and
should the insurance payments not be sufficient in order to cover the extent
of the loss and/or the damage actually caused, the Supplier shall be
responsible for completing such.
19.9 As a condition precedent to the first payment under this Agreement,
Supplier shall furnish a certificate from its insurers stating:
19.10 "The insurance required by Agreement No _____ between ISR and
Supplier is in full force and effect".
19.11
Without derogating from the duty to provide the insurance
certificates as detailed above, The Supplier undertakes to provide ISR with a
copy of all of its insurance policies, within fourteen (14) days of ISR's first
request.
20. Termination
20.1 ISR, in its sole discretion, may terminate this Agreement upon the
provision of one (1) month written notice to Supplier.
20.2 ISR, in its sole discretion, may immediately terminate this Agreement if
Supplier commits a fundamental breach hereof and fails to remedy such
breach within thirty days of receipt of written notice of such breach.
16
20.3 This Agreement may be immediately terminated by ISR by written notice
upon the occurrence of any of the following events to or in connection with
Supplier:
20.3.1 Voluntary or involuntary bankruptcy (liquidation or reorganization), or
receivership or commencement of a similar insolvency proceeding;
20.3.2 Cessation of business operations;
20.3.3 Election to dissolve or wind-up business;
20.3.4 Sale of all or substantially all of its assets as would cause Supplier to
be unable to fulfill its obligations under this Agreement;
20.3.5 Supplier no longer has ISO 9001 and/or equivalent certification.
21. Rights and Obligations Upon Termination, Cancellation or Expiration
21.1 Upon the termination, cancellation or expiration of this Agreement for any
reason:
21.1.1 ISR shall not be liable to Supplier for any claim, suit, demand or cause
of action that has arisen or may arise, for any indemnification,
compensation or any other payment for any reason, including by way
of example only, consequential or incidental damages of any kind,
alleged lost profits or commissions, lost income, damage to reputation,
expenditures, investments, costs of arranging alternative lines of
business, unjust enrichment, commitments, built-up goodwill or on
account of any reason or cause whatsoever, arising out of or in relation
to the termination, cancellation or expiration of this Agreement.
21.1.2 ISR shall be entitled to direct, consequential and/or incidental damages
in the event of a fundamental breach of this Agreement by Supplier.
21.1.3 Should ISR, in its sole discretion, so demand, Supplier shall complete
any outstanding Orders for the provision of any Devices.
22. Performance & Warranty Guarantee
22.1 To secure the punctual, complete and entire performance of all of
Supplier's obligations under this Agreement, within 7 days of the Effective
Date, the Supplier shall furnish ISR with an irrevocable autonomous
performance and warranty guarantee, approved in advance by ISR, in the
form attached hereto as Appendix D (the “Performance and Warranty
Guarantee”).
22.2 The Performance and Warranty Guarantee shall be for an amount equal to
twenty thousand (20,000) Euros and shall be valid until sixty (60) days
17
following the end of the Devices Warranty Period for any Devices ordered
during the Agreement Term and, if applicable, the Option Period.
22.3 The Performance and Warranty Guarantee shall be an unconditional and
irrevocable bank guarantee, issued by a first-class bank approved in advance
by ISR at its sole and absolute discretion, to be paid upon first written
demand without the need to prove or substantiate the demand. The
Performance and Warranty Guarantee shall be denominated in Euros only,
unless agreed otherwise in advance by ISR.
22.4 The timely submission of the Performance and Warranty Guarantee by
Supplier to ISR under this Agreement is a precondition for the payment by
ISR of any consideration due to the Supplier under this Agreement.
22.5 The Supplier undertakes to ensure that the Performance and Warranty
Guarantee remains valid through the time stipulated herein. If sixty (60) days
prior to the expiration of the Performance and Warranty Guarantee the
Supplier has not completed all of its obligations to be performed during the
time period secured by the Performance and Warranty Guarantee, or if such
period has been extended, the Supplier shall provide, at its own expense, a
substitute guarantee meeting the requirements of this Agreement, or extend
the term of the Performance and Warranty Guarantee and notify ISR of such
extension, failing which ISR shall be entitled, without derogating from any
other remedy that may be available to it under the circumstances, to collect
the Performance and Warranty Guarantee.
22.6 For the sake of clarity Collection on the Performance and Warranty
Guarantee or any part thereof by ISR shall not derogate from the right of ISR
to terminate this Agreement, nor from its right to any remedy that may be
available to it under any law or pursuant to this Agreement, nor shall it
relieve the Supplier of any of its liabilities and undertakings under this
Agreement.
23. Language
All correspondence, orders, documentation, drawings, specifications, instructions,
manuals, etc. related to the Devices and/or Services provided pursuant to the
Agreement shall be in the English language, including and without limitation, oral
and written communication between ISR and Supplier, the issuing of Orders and
replies thereto.
24. Amendments
This Agreement may not be modified, amended or canceled, in whole or in part,
except in an instrument in writing signed by both Parties hereto.
18
25. Set-Off
Without derogating from any right of set-off conferred upon ISR elsewhere in this
Agreement or under any law, ISR shall have the right to set-off against any
amounts that may be owed to Supplier pursuant to this Agreement or to the Main
Agreements and/or to any other agreement between ISR and Supplier, any
amount, debt or payment owed by Supplier to ISR pursuant to this and/or to any
other agreement between ISR and Supplier (including without limitation in the
form of indemnification or compensation for damages, regardless of whether
liquidated or not).
26. Severability
If any provision of this Agreement is held or made invalid or unenforceable for
any reason, such invalidity or unenforceability shall not affect the remainder of
this Agreement, and the invalid or unenforceable provisions shall be replaced by a
mutually acceptable provision, which, being valid, legal and enforceable, comes
closest to the original intentions of the Parties hereto and has like economic effect.
27. Entire Agreement
This Agreement reflects the entire agreement between the Parties regarding its
subject matter and cancels or supersedes any representation, undertaking, promise,
understanding, discussion or agreement made between the parties before the
Effective Date, except mentioned otherwise above.
28. Notices
28.1 Except as otherwise stipulated herein, the addresses of the Parties for
purposes of this Agreement and for the delivery of any notices required or
otherwise dispatched hereunder shall be:
Israel Railways
Rolling Stocks Division
Purchasing and Logistics Dept. Manager
Israel Railways Ltd.
1 Hacharoshet
P.O. Box 10062
Haifa Bay 26111 Israel
telephone no.: +972-4-856-4601
facsimile no.: +972-4-856-4636
e-mail: baruchl@rail.co.il
___________________
___________________
___________________
19
___________________
Facsimile no.: ___________________
e-mail:______________
[shall be completed by Supplier]
28.2 All notices shall be in writing and shall be sent by either of the Parties to
the other Party by registered mail, facsimile or personal delivery to the
addresses set forth in section ‎31.1 above, and shall be deemed to have been
delivered to the addressee; if by mail, seven (7) calendar days after the date
on which the notice was posted; if by facsimile, 24 hours after dispatch by
facsimile; and in the case of personal delivery, at the time of delivery.
IN WITNESS WHEREOF, the authorized signatories of the Parties have signed this
Agreement:
ISRAEL RAILWAYS LTD.:
By:__________________________
______________________________
By:_______________________
Title: ________________________
Title:_____________________
Printed Name: ________________
Printed Name: _______________ _
21
Appendix A
Technical Specification
21
Appendix B
Consideration
For the Manufacture and Supply of the Devices
1. Any price stipulated herein shall be quoted in Euro (€)currency. Supplier hereby
acknowledges and declares that all of the sums stated herein (Appendix B) shall constitute
the final price that will be paid to the Supplier for the manufacture and supply of the
Devices, as applicable, including all of the related services, warranty, optional services
and spare parts obligations, equipment, cost, fees duties and taxes as specified in the
Agreement.
2. All taxes, fees, duties, licenses, costs or other payments that are to be paid in connection
with the exportation, supply and delivery of the Devices, including but not limited to all
types of importation and custom duties and services, such as transportation costs, customs
agents’ fees, purchase tax (in Hebrew "Mas Kniya" or "‫) "מס קניה‬, wharfage fees (in
Hebrew "Dmei Ratzif" or "‫) "דמי רציף‬, Israeli customs duties, port handling fees (in
Hebrew "Dmei Nitul" or "‫) "דמי ניטול‬, port infrastructure fees (in Hebrew "Dmei Tashtit"
or "‫) "דמי תשתית‬, cleaning of the containers, stuffing and unloading of the containers, cam
locks for discharging the Devices (as applicable) at port, supervision while discharging at
port, discharging terms at port, etc. shall be considered as part of the Devices Price and
shall be borne solely by Supplier. Notwithstanding the above, Israeli Value Added Tax, if
applicable, shall be borne by ISR.
3. The Price for the Devices, including two (2) years of warranty, is as follows:
Item
Price per Quantity Total Price (Quantity multiplied by Price per
Unit
(for
Unit)
evaluation
purposes
only)
One
Break
5
Testing Device
Total Evaluated Price for Initial Purchase
Order
All prices set forth pursuant to this Section ‎3 shall be fixed and shall not be linked to any
price increase mechanism. For the avoidance of doubt, the Devices Prices listed above shall
apply to all Orders pursuant to the Agreement.
22
4. The Price for the Optional Devices including 2 years of warranty is as follows:
Item
Price Quantity
Total Price (Quantity multiplied by
per
(for
Price per Unit)
Unit
evaluation
purposes
only)
One Break Testing Device
5
Total Evaluated Price for Optional Devices
5. Linkage Mechanism
5.1. The Devices Price as specified above and the prices of the Spare Parts as specified in
Appendix C shall be fixed and shall not be linked to any price increase mechanism
for a period of two (2) years commencing on the Final Submission Date (as such term
is defined in the Tender documents).
5.2. As from the 2nd anniversary of the Final Submission Date, the Devices Price and the
prices of the Spare Parts shall be linked to the European Consumer Price Index
(HICP E25 - Overall index, Monthly Index, (2005=100) as published at Eurostat
website
http://epp.eurostat.ec.europa.eu/portal/page/portal/hicp/data/database)
("HICP").
5.3. The basic index for the HICP shall be the last known index on the Final Submission
Date.
5.4. Supplier undertakes to supply the Devices at the prices herein provided until the end
of the Agreement Period (including the Option Period, if applicable).
6. Payment by ISR to the Supplier for the Purchase Order for the Devices shall be made by
way of bank transfer in the manner and terms set forth in the Agreement.
23
Appendix C
Spare Parts list & prices
The Supplier shall submit a list of all necessary and recommended Spare Parts required for
maintenance of the Devices.
Original
Spare Part
manufacturer’s
Price in Euro
name and part
(DAP) at Site
Delivery Time
number
24
Estimated
annual usage
Appendix D
Form of Performance and Warranty Guarantee
Re: Guarantee No. _____________ (“Performance and Warranty Guarantee”)
Whereas Vossloh Espana, SA (the “Supplier”) and Israel Railways Ltd. (“ISR”) entered into
an Agreement No. ____________ on ________________ (the “Agreement”) for the supply
of Devices;
Now, we _____________________________ (“Guarantor”) hereby irrevocably guarantee
the immediate payment, on first demand, to ISR of the sum of twenty thousand (20,000)
Euros in the event that the Supplier has not fully complied with all of its obligations under
the Agreement, including its warranty obligations.
This Guarantee shall be valid and remain in force for a period of sixty (60) days following
the end of the Devices Warranty Period for any Devices ordered during the Agreement Term
and, if applicable, the Option Period, as those terms are defined in the Agreement, or as
otherwise extended in writing by ISR, Supplier and Guarantor, and may be drawn down by
ISR on one or more occasions up to the aggregate amount referred to above. This Guarantee
shall not be revocable by Guarantor or Supplier by notice or otherwise.
For collecting any amount under this Guarantee, ISR shall not have to refer first to Supplier,
nor shall it have to produce any judgment or any other judicial document, nor shall it have to
prove any breach, failure or non-compliance on the part of Supplier or on the part of any
person acting for Supplier or on its behalf or in its name, and a written demand or facsimile
notice to Guarantor from an authorized representative of ISR in the following form shall
suffice:
Pursuant to Guarantee No. ____________ issued by you on _____________________
[date] on behalf of ________________, you are hereby instructed to immediately pay
Israel Railways Ltd. the sum of ___________ into account no. ____________________
in Bank ________ (branch _____ in ______, Israel).
Said written notice shall be sufficient for all purposes of this Guarantee, and specifically
shall be sufficient to collect any sum(s) under this Guarantee from the Guarantor
immediately upon the demand of ISR.
______________
Guarantor
25
Appendix E
Payment Guarantee
Israel Railways
Israel Railways - Finance Department
Haifa East Station
P.O. Box 1481
Haifa, Israel
Re: Guarantee No. _____________ (“Payment Guarantee”)
Whereas _______________________ (the “Supplier”) and Israel Railways Ltd. (“ISR”)
entered into Agreement No. ____________ on ________________ (the “Agreement”) for
the manufacture and supply of the Devices (as defined therein):
Now, we _____________________________ (the “Guarantor”) hereby irrevocably
guarantee the immediate payment, on first demand, to ISR of the sum of _______________
Euro (_________________ Euro) [the amount of the Payment, hence ____ % of the
Purchase Order Price of Devices] in order to ensure that ISR can recover the said amount
should Supplier not fulfill its obligations and/or breach the Agreement.
This Guarantee shall be valid and remain in force through ______________, 20__ or as
otherwise extended in writing between ISR, Supplier and Guarantor. This Guarantee shall
not be revocable by Supplier or Guarantor, by notice or otherwise.
ISR may collect amounts under this Guarantee on more than one occasion within the time
period and up until the aggregate amount set forth above.
For collecting any amount under this Guarantee, ISR shall not have to refer first to Supplier,
nor shall it have to produce any judgment or any other judicial document, nor shall it have to
prove any breach, failure or non-compliance on the part of Supplier or on the part of any
person acting for Supplier or on its behalf or in its name, and a written demand or facsimile
notice to Guarantor from Deputy General Manager, Economics & Finance or by a person
designated in writing by him, in the following form shall suffice:
Pursuant to the Guarantee issued by you on _____________________[date] on behalf of
_______________[Supplier], you are hereby instructed to immediately pay ISR the sum
of
_______________________
to
Account
Number
______________
at
____________________________ (Name of Bank).
The said written notice shall be sufficient for all purposes of this Guarantee, and specifically
shall be sufficient to collect any sum(s) under this Guarantee from the Guarantor
immediately upon the demand of ISR.
The Guarantor hereby waives any notice of default on the part of Supplier and hereby waives
any demand by ISR for payment by Supplier to ISR.
_______________________
Guarantor
26
Appendix F
Supplier's Bank Account Form
PART A – Supplier's Bank Details
[to be completed by the Supplier's authorized signatories]:
On
behalf
of
the
Supplier,
we
the
undersigned,
________________________________________ [authorized signatories on behalf of the
Supplier], hereby request that all payments to be paid to the Supplier by Israel Railways Ltd.
under this Agreement shall be made by means of bank transfer to the Supplier's bank account
according to the following details:
Bank Account No.: ___________________________________________________
Swift Code: _________________________________________________________
IBAN Code: ___________________________
Branch Number: ____________________________________________________
Bank Name: ________________________________________________________
Bank Address: ______________________________________________________
Signature: _____________________
Name: ________________________
Title: _________________________
Date: _________________________
Signature: _____________________
Name: ________________________
Title: _________________________
Date: _________________________
----------------------------------------------------------------------------------------------PART B - Certificate of Authorization
[to be completed by an ADVOCATE / C.P.A.]:
27
I, ___________________ [Advocate/C.P.A.] of _________________________, hereby certify
that ______________________ and ___________________ are fully empowered by
____________ [Supplier] to sign the Bank Account Form, and hereby certify that their
signatures upon the Supplier's Bank Account Form are fully binding upon the Supplier in
accordance with the Supplier's articles of association.
Signature and stamp: _____________________________
PART B - Certificate of Authorization
[alternative authorization: to be completed by the SUPPLIER'S BANK]:
We, the undersigned _________________ [Bank] hereby declare that as of ______________
[date of Supplier's signature on Part A above] the ________________ [Supplier] is the
registered owner of the above mentioned account and certify that Part A above has been signed
by the Supplier's authorized signatories. We undertake to promptly inform Israel Railways Ltd.
regarding any change in the ownership of the account or the authorized signatories.
Signature: ____________________
Name: _______________________
Title: ________________________
Stamp: ______________________
---------------------------------------------------------------------------------------
28
Appendix G
Acceptance Certificate
To:
[Name of Supplier]
[Street]
[City]
[Country of origin]
From:
Israel Railways Ltd.
Tel Aviv Central Train Station (Arlozorov)
P.O.B. 18085
Tel Aviv 61180
Israel
We hereby certify that the Devices as defined in Agreement No. _____________ (the
"Agreement"), which were ordered by Israel Railways Ltd. ("ISR") pursuant to the
Agreement, have been accepted by ISR after the successful performance of all the tests and
trials required under the Agreement.
The Supplier confirms that the Devices are in full compliance with all of the terms and
requirements of this Agreement, in particular, the Technical Specifications, are without any
discoverable damage, fault or defect, and are and shall be fully operational and compliant
with the Agreement.
It is hereby confirmed between the Parties that the granting of this certificate shall not (i)
derogate from the Supplier's liability under the Agreement; (ii) create any liability on the
part of ISR; or (iii) constitute a waiver of any of ISR's rights under the Agreement.
THIS CERTIFICATE IS ISSUED WITHOUT PREJUDICE TO THE RIGHTS
AND POWERS OF ISR UNDER THE AFORESAID CONTRACT.
Signed:____________________ Israel Railways Ltd.
_____________
Name
_________________
Date
Confirmed:
Signed:_________________________ for [Name Of The Supplier]
______________
Name
_________________
Date
29
Appendix H
Change Order Form
FROM: ___________________________
CHANGE
ISR Project Manager
____________
TO: ______________________________
DATE
Supplier
_____________
OF
ORDER
CHANGE
NUMBER:
ORDER:
SYSTEM(S)ORDERED:
__________________________________________
In accordance with our agreement made effective as of __________________, 20__, you are
hereby notified of the following alterations to the technical specifications, detailed below. As
of _________________, 20___, the Devices shall effectively be constructed in accordance
with the amended technical specifications.
Within ten (10) business days from your receipt of this change order, you shall provide us
with a written confirmation and, if applicable, shall state requested changes to the Devices
price, delivery time, and any other terms relevant to the provision thereof. Such requested
changes, if any, shall be treated in accordance with the agreement.
(attach additional documentation if necessary)
31
Description of Alteration to Technical Specifications:
BY: ISR
Name
______________________________
Title
Date
31