Tender Ref. T/2017/015 RFP – Page 1 T/2017/015 Request for Proposal (RFP) ‐ Robotic Concierge Services 1 Background 1.1 The Cyberport Cyberport is a creative digital cluster with over 900 community members. It is managed by Hong Kong Cyberport Management Company Limited (HKCMCL) which is wholly owned by the Hong Kong SAR Government. With a vision to build a legacy of entrepreneurial excellence that establishes Cyberport as a leading global innovation and technology hub, Cyberport is committed to facilitating the local economy by nurturing digital industry start‐ups and entrepreneurs, driving collaboration to pool resources and create business opportunities, and accelerating digital adoption through strategic initiatives and partnerships. Equipped with an array of state‐of‐the‐art tech facilities and a cutting‐edge broadband network, the Cyberport community is home to four grade‐A intelligent office buildings, a five‐star design hotel, and a retail entertainment complex. 1.2 Further information about the Cyberport can be found at http://www.cyberport.hk 2 Objectives of this Project 2.1 To realise our vision of establishing Cyberport as a global leading innovation and digital technology hub, Cyberport focuses on building key clusters of digital technology, namely FinTech, eCommerce, Internet of Things (IoT) / Wearables and Big Data/ Artificial intelligence (AI) to foster the development of Hong Kong into a “Smart City”. With a committed team of professionals providing all rounded value added services to support our digital community and an array of state‐of‐the‐art tech facilities, Cyberport is the flagship for Hong Kong’s digital tech industry. This includes further use of robotic and automation technology. To employ the robotic technology, Cyberport is now seeking external expertise to assist in provide, design and development of a proof‐of‐concept model of intelligent platform and application for providing tour guide service (Concierge), access to information and applications for self‐service payment by using proven AI technology. 2.2 Moreover, HKCMCL would like to implement an AI‐enabled robot for the concierge services. The robot will work side‐by‐side with Cyberport’s Facility Management Operator (FMO) to assist with visitor requests, personalize the guest experience. 2.3 The robot shall learn to interact with guests and respond to their questions in a friendly and informative manner. The robot shall use a combination of APIs, including dialog, speech to text and text to speech, to enable it to greet guests upon arrival and to answer questions about Cyberport, services and hours of operation. 2.4 By tapping into Cyberport’s Wayfinding system, the robot shall also assist guest to find way within Cyberport. The guest just need to quote the name, the robot could be able to lead to the designated lift lobby for getting the access with greeting to be given upon arrival. 3 Scope of Services
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Tender Ref. T/2017/015 RFP – Page 1
T/2017/015 Request for Proposal (RFP) ‐ Robotic Concierge Services
1 Background
1.1 The Cyberport
Cyberport is a creative digital cluster with over 900 community members. It is managed by Hong Kong Cyberport Management Company Limited (HKCMCL) which is wholly owned by the Hong Kong SAR Government. With a vision to build a legacy of entrepreneurial excellence that establishes Cyberport as a leading global innovation and technology hub, Cyberport is committed to facilitating the local economy by nurturing digital industry start‐ups and entrepreneurs, driving collaboration to pool resources and create business opportunities, and accelerating digital adoption through strategic initiatives and partnerships. Equipped with an array of state‐of‐the‐art tech facilities and a cutting‐edge broadband network, the Cyberport community is home to four grade‐A intelligent office buildings, a five‐star design hotel, and a retail entertainment complex.
1.2 Further information about the Cyberport can be found at http://www.cyberport.hk
2 Objectives of this Project
2.1 To realise our vision of establishing Cyberport as a global leading innovation and digital
technology hub, Cyberport focuses on building key clusters of digital technology, namely FinTech, eCommerce, Internet of Things (IoT) / Wearables and Big Data/ Artificial intelligence (AI) to foster the development of Hong Kong into a “Smart City”. With a committed team of professionals providing all rounded value added services to support our digital community and an array of state‐of‐the‐art tech facilities, Cyberport is the flagship for Hong Kong’s digital tech industry. This includes further use of robotic and automation technology. To employ the robotic technology, Cyberport is now seeking external expertise to assist in provide, design and development of a proof‐of‐concept model of intelligent platform and application for providing tour guide service (Concierge), access to information and applications for self‐service payment by using proven AI technology.
2.2 Moreover, HKCMCL would like to implement an AI‐enabled robot for the concierge services. The robot will work side‐by‐side with Cyberport’s Facility Management Operator (FMO) to assist with visitor requests, personalize the guest experience.
2.3 The robot shall learn to interact with guests and respond to their questions in a friendly and
informative manner. The robot shall use a combination of APIs, including dialog, speech to text and text to speech, to enable it to greet guests upon arrival and to answer questions about Cyberport, services and hours of operation.
2.4 By tapping into Cyberport’s Wayfinding system, the robot shall also assist guest to find way
within Cyberport. The guest just need to quote the name, the robot could be able to lead to the designated lift lobby for getting the access with greeting to be given upon arrival.
3 Scope of Services
Tender Ref. T/2017/015 RFP – Page 2
3.1 The scope of the tender is to design, engineer, supply, install, test and commission a proof of concept (POC) trial of an AI platform and applications including but not limited to natural language processing and non‐human interaction. [Mandatory] 1
3.2 Propose necessary tools for development, execution and maintenance of the knowledge base of the AI platform. [Mandatory]
3.3 The proof of concept trial should be able to demonstrate the use of AI technology in a particular area as included in the following scenarios:
3.3.1 POC to demonstrate the use of AI technology as a Concierge to physically direct visitors around the place, introduce them relevant information about the place and response general questions such as Cyberport services information. [Mandatory]
3.3.2 POC to show the use of AI technology as an assistant in the process of Shuttle Bus Ticket payment process, including below functional modules:
Payment: Pay by TNG payment [Mandatory]
Payment: Pay by credit card and by Octopus card [Desirable]
Top up service for TNG payment via credit card or Octopus card [Desirable]
Printing: Print thermal Receipt as Bus Ticket [Mandatory]
Other intelligent functions: Virtual AI Helper; Notification to users via mobile (if any) [Desirable]
3.4 Setup of system environment for development and testing (HKCMCL will provide
infrastructure and necessary operation system Licenses) [Mandatory]
3.5 Provide at least two sets of robots together with its charging kid/apparatus to demonstrate the capabilities during Services Period [Mandatory]
3.6 Provide English conversation library with 300 Question and Answer Pairs, and 10
Conversational Flows [Mandatory] 3.7 Provide necessary consultation services to assist HKCMCL during the course of development
and subsequent on‐going support [Mandatory]
3.8 The service platform shall be capable to extend to other uses (e.g. special event greeting) through customisation [Desirable]
4 Service Period
The Service Provider shall serve a one‐year term (i.e. from 1 January 2018 to 31 December 2018), with an option for HKCMCL to renew for a further period not exceeding four years at HKCMCL’s discretion [Mandatory].
5 Specifications/Requirements:
1 The proposed Service must fulfill all requirements marked in [Mandatory]. Any proposal which fails to fully meet the mandatory requirements will not be considered. Additional marks will be given if the Service can meet the [Desirable] requirements.
Tender Ref. T/2017/015 RFP – Page 3
5.1 Must be completed according to the Project Plan in Clause 7.5 below. [Mandatory]
5.2 Proposed consultants should meet the following qualifications:
5.2.1 At least 4 years solid experience in developing applications/solutions using proven AI technology that must be presence in the market at least 10 years [Mandatory]
5.2.2 The AI technology should be able to support the following languages:
[Mandatory]
English
Traditional Chinese (Native Hong Kong Cantonese)
Simplified Chinese (Putonghua) [Desirable]
French
German
Spanish
Filipino
Indonesian
Italian
Dutch
Finnish
Turkish
Arabic
5.2.3 The AI technology should have at least 2 local paid commercial project references using similar technology (preferably with local Cantonese) in past 12 months. [Mandatory]
5.2.4 Regular review by HKCMCL on the project deliverables are required. [Mandatory]
5.2.5 Consultants should log and follow‐up on issues found during these reviews. [Mandatory]
5.2.6 Consultants may be required to work on‐site and in non‐office hours. [Mandatory]
5.2.7 The service platform should show the ability of future integration with Cyberport backend systems (e.g. Customer Relationship Management system). [Desirable]
5.2.8 HKCMCL reserves the rights to request change of personnel where necessary. [Mandatory]
6 Security requirement
The system shall comply with the following regulations and policy of HKCMCL, in particular the data protection: [Mandatory]
6.1.1 Cyberport Information Security Policy
6.1.2 IT Security Guidelines and Regulations under Cyberport Information Security Manual
References of standards and guidelines that HKCMCL adopts can be provided upon request in writing.
7 Project Deliverables and Schedule:
Tender Ref. T/2017/015 RFP – Page 4
7.1 Warranty [Mandatory]
The Service Provider should provide maintenance, support and warranty for the whole solution for one (1) year after final acceptance. The support must be 12x5x4 (i.e. 9am – 9pm, Monday to Friday) with a response time of 4 hours.
The Service Provider’s staff will arrive on‐site within response time commitment (from the time HKCMCL make such request) for on‐site support and resolve the issue within resolution time commitment.
The Service Provider must submit in their technical proposal the ‘Escalation Procedures’ with required contact names, E‐mail’s and mobile numbers in order to solve any technical and non‐technical problems throughout the life cycle of the project and warranty period.
7.2 Source Code for Custom‐Made Software [Mandatory]
If the proposed solution is a custom‐made software rather than a commercial‐off‐the‐shelf software, the system source code and any associated files, reference files, and development software (and related documentation and licenses) used to compile, develop, and build, etc. the executable code or “source code” must be provided to HKCMCL. The source code should be well documented in accordance with industry software engineering practices.
The software developer shall retain intellectual property rights. HKCMCL shall have a license for perpetuity for use as it applies solely to this project, including the right to modify/enhance. The software code may not be sold or used, in part or in whole, in any other project or application other than that intended by this RFP, in part or in whole, by HKCMCL or any other party. If a Sub‐Service Provider is used to write the software, the Service Provider shall include, as part of the documentation submittal, a signed letter on Sub‐Service Provider letterhead, granting HKCMCL ownership, use, and modification rights of the code and documentation as defined herein.
7.3 Project Management [Mandatory]
The Service Provider shall have direct responsibility for the provision of the Services. The Service Provider shall be responsible for meeting specific performance targets and demonstrating continuous improvements in sales, cost, quality and service.
The Service Provider shall establish a project team to carry out all works for the project.
• Dedicate a Project Manager (the major point of contact to HKCMCL) to assure the timeliness and quality of the supplied services and deliverables, to coordinate work and collaboration with all stakeholders of the project, HKCMCL staff and Service Providers (if any), and to drive project deliverables associated with the proposed solution.
• Conduct and hold regular project meetings with HKCMCL’s project representatives.
• Prepare and make available all project documentations according to the agreed schedule.
7.4 Project Deliverables [Mandatory]
The following document deliverables are expected:
• Project Plan • User Requirements Document • Detailed Design Report • Functional Test Plan • Acceptance Test Plan • Configuration Document • Hardware and Software Inventory
Tender Ref. T/2017/015 RFP – Page 5
• Updates to existing Cyberport operations and security documentation • Minutes of all meetings with various concerned parties during the project period
In addition, the Service Provider shall provide relevant training to the HKCMCL’s user and system administrator. The training syllabus shall cover all functional requirements and system requirements. The Service Provider shall provide a training handbook to facilitate the learning experience to be provided to the trainees.
7.5 Project Plan [Mandatory]
The implementation works are expected to take up to three (3) months to complete.
The Service Provider should propose a Project Plan meeting all of the following criteria: a) Key Milestone 1 – AI Environment should be accepted by HKCMCL by 8 December 2017 (Key
Date 1). b) Key Milestone 2 ‐ Acceptance Test of General Frequently Asked Questions of Phase 1 should
be completed successfully by 31 December 2018 (Key Date 2). c) Key Milestone 3 ‐ Acceptance Test of Tour Guide and Shuttle Bus Ticketing should be
completed successfully by 31 January 2018 (Key Date 3).
7.6 System requirement
HKCMCL has its own IT infrastructure to support HKCMCL users' daily operation as Appendix C attached.
To maintain the stability and efficiency, HKCMCL would like to implement the system with the below requirement.
• The implementation should leverage and integrate with existing IT infrastructure and avoid introduction of duplicated technologies
• A development and testing environment for on‐going support should also be implemented
• Backup and restore function
7.7 Hardware requirement
HKCMCL will provide server platform which running on virtual environment. The basic virtual machine (VM) specification stated in the below table.
Virtual machine specification
1. Resources
1.1 vCPU x 2: Intel E5‐2690 8 cores
1.2 Memory: Minimum 8GB, maximum support up to 32GB
1.3 Storage: Minimum 160GB, maximum support up to 2000GB (2TB)
1.4 Supporting Operating System (tenderer should include required license in the Proposal):
Windows Server Standard 2012 R2
Linux (CentOS 6.7)
1.5 Backup service for virtual instance included
The Service Provider should specify the number of VM required and the detailed configuration requirement of each VM in their technical proposal.
The Service Provider should responsible for setup and configure the VM, including but not
Tender Ref. T/2017/015 RFP – Page 6
limited to the installation of Operating System.
If the Service Provider consider the VMs provided by HKCMCL do not fit their design, the Service Provider should include their own server hardware. A detailed specification (i.e. brand, model and detailed configuration) of each server should be included.
7.8 Turnkey solution
The Service Provider should provide a turnkey solution comprising of application software, operation systems and hardware cater all the requirements in this Clause 7.
8 Terms and Conditions
8.1 The Articles of Agreement and Conditions of Contract enclosed in Appendix D should form part of the contract documents upon award of the Contract.
9 Content of Proposal to be submitted by the tenderer
9.1 Technical Proposal
(a) Company profile; (b) Company’s professional and industry experience; (c) List of similar projects; brief description including clients’ name(s), project sum(s) and
project size; (d) Complete the Requirement Table in Appendix A; (e) Description of how the proposed system can meet each of the requirements described in
Appendix A; (f) Detailed Project Plan; (g) A proposed organization chart for the administration and execution of the Contract; and (h) CVs of the proposed Project Manager and personnel that will be assigned to work on this
project.
9.2 Fee Proposal
(a) The tenderer shall complete the Schedule of Rates [please be consistent: Price Table or SOR?] in Appendix B attached;
(b) The tenderer shall complete the Offer To be Bound, which is completed, signed, witnessed and dated in Appendix C attached;
(c) The tenderer may accept the contents of the Schedules of Rates as correct or alternatively, make any alteration, addition or omission to the printed text of the Schedules according to its interpretation and/or calculations. Any alteration, addition or omission be made to the printed text of the Schedules must be initialed by the person who signs the Form of Tender.
Should any errors, discrepancies or apparent underpricing be discovered by HKCMCL, HKCMCL may query these in writing with the tenderer. Such query is not to indicate a proposal to change the tender price, the tenderer may offer only to stand by his tendered price or withdraw his tender. No query or series of queries shall be considered comprehensive.
9.3 Lodging of Tender
(a) The tender shall be placed in the Tender Box situated at Units 1102‐1104, Level 11, Cyberport 2, 100 Cyberport Road, Hong Kong, before 3:00 p.m. (Hong Kong Time) on 31 October 2017 ("the tender closing date") in plain, sealed envelopes (without any
Tender Ref. T/2017/015 RFP – Page 7
identification of the name of the tenderer).
(b) Tenderer shall make three (3) duplicates of the tender and submit them together with the original tender. Total four (4) sets.
In the event a typhoon signal No. 8 or above is hoisted or a black rainstorm warning signal is issued between Hong Kong time 9:00 a.m. and 3:00 p.m. on the submission closing date, the deadline for submission will be extended to 3:00 p.m. on the following working day.
IMPORTANT NOTES: Tenderers must not send your submissions to any other representatives of HKCMCL before or after the submission deadline. Failure to comply with this requirement will render your proposals invalid. Proposals shall remain valid for one hundred and twenty (120) days after the date of tender closing.
9.4 Schedule of Tendering
The schedule of tender is set out below and any change to the schedule will be confirmed by email to Tenderers.
Activity
Key Date
Questions raised by Tenderers On or before 24 October 2017 (Tuesday)
Date for lodging of tender
On or before 3:00 p.m. 31 October 2017 (Tuesday)
9.5 Tender Enquiries
Any enquiries from the tenderers relating to this tender document shall be in writing, clearly stating the tender reference “T/2017/015” and shall be made on or before 31 October 2017 to:
Manager – Compliance and Procurement Units 1102‐1104, Level 11, Cyberport 2, 100 Cyberport Road, Hong Kong E‐mail: [email protected] or by fax : (+852) 3027 0385
HKCMCL, at its discretion, may respond to all questions and be forwarded to all tenderers without reference to who raised the question(s).
10 Evaluation Process
10.1 Proposals will be reviewed by an assessment panel. Selected tenderers may be required to make a presentation and to clarify any points of their proposals to the assessment panel.
Tender Ref. T/2017/015 RFP – Page 8
10.2 Assessment will be based on the Technical and Fee proposal on the following weighted score
Technical Proposal (40%)
Fee Proposal (60%)
10.3 Marking Scheme
Assessment Criteria Maximum Score
Technical Score
40 (Passing mark: 20)
TS1 Demonstration of excellent capabilities of the system in the following areas:
a. Tools for maintenance of the knowledge base of the AI
b. Other intelligent functions
c. Capable to extend to other uses through customisation
d. Language supported by AI technology
e. Ability of future integration with Cyberport’s backend systems.
f. Developer & Testing Environment
30
TS3 Demonstration of proven track records of similar projects in the last 2 years
5
TS4 Profile and experience of the team members involved in this project
5
Fee Score
60
Total Maximum Score: 100
10.3.1 Evaluation – Stage 1:
Only those Technical Proposals can attain:
a. an average 20 marks or above (determined by adding the aggregate total of Technical Scores earned from all assessors, dividing that number by total number of assessors); and
b. at least 50% votes in the Selection Committee awarded a passing mark (i.e. 20 marks or above);
will be short‐listed to Stage 2 of the evaluation.
10.3.2 Evaluation – Stage 2:
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Calculation of weighted score for Technical Proposals:
40
1
10.3.3 Evaluation – Stage 3:
The evaluation of the price score will be based on the Tenderer’s 2‐year total cost of ownership.
A maximum price score of 60 will be allocated to the Fee Proposal in which the highest mark is attained. The weighted price score of the Fee Proposal will be worked out in accordance with the following formula:
60 1 2
10.3.4 Evaluation – Stage 4:
The combined technical/price score for the short‐listed proposals will be worked out. The tender proposal with the highest combined score will normally be selected, subject to financial vetting.
HKCMCL reserves the right to make one award or multiple awards, and the right to reject all proposals in their sole discretion.
11 Personal data provided
11.1 Tenderer’s personal data provided in the tender will be used for tender evaluation and contract award purposes. If insufficient and inaccurate information is provided, the tender may not be considered.
11.2 Tenderer’s personal data provided in the tender may be disclosed to the parties responsible for tender evaluation within HKCMCL and its advisers.
12 Consent to disclosure
12.1 HKCMCL shall have the right to disclose to any third party whenever it considers appropriate or upon request by any third party (written or otherwise), without further reference to or consent from the successful tenderer or any other tenderer, information contained in the tender documents, including, without limitation, particulars of the awarded contract, the date of award, the name and address of the successful tenderer, the scope of work and the contract amount.
13 Probity and Anti‐Collusion
13.1 Tenderers are reminded to comply with the following matters relating to probity and anti‐collusion requirement regarding this RFP.
Offering Gratuities
Tender Ref. T/2017/015 RFP – Page 10
HKCMCL is a public body under the Prevention of Bribery Ordinance, Cap 201 (the "POB Ordinance"). HKCMCL does not permit any of its employees, consultants, officers and agents to accept any advantage in connection with the award and execution of this contract. The offer of an advantage as defined in the POB Ordinance to any employees, consultants, officers and agents of HKCMCL with a view to influencing the award of this contract may constitute an offence under the POB Ordinance. The tenderer shall not, and shall procure that its employees, agents and sub‐Service Providers shall not, offer, solicit or accept an advantage as defined in the POB Ordinance in connection with the tendering and execution of this contract.
Failure to so procure or any act of offering, soliciting or accepting advantage referred to in Paragraph 16.1 above committed by the tenderer or by an employee, agent or sub‐Service Provider of the tenderer shall, without affecting the tenderer’s liability for such failure and act, result in its tender being invalidated.
Warranty Against Collusion
(i) By submitting a tender, a tenderer is deemed to have represented and warranted to HKCMCL that in relation to the tender: a) save with the prior written consent of HKCMCL, it has not communicated and will not
communicate to any person other than HKCMCL the amount of any price submitted in its tender;
b) it has not fixed and will not fix the amount of any price submitted in its tender by arrangement with any person;
c) it has not made and will not make any arrangement with any person as to whether it or that other person will or will not submit a tender; and
d) it has not otherwise colluded and will not otherwise collude with any person in any manner whatsoever in the tendering process
(ii) In the event that a tenderer is in breach of any of the representations and/or warranties in
Clause (i), HKCMCL shall be entitled to, without compensation to any person or liability on the part of HKCMCL: a) reject the tenderer’s tender; b) if HKCMCL has accepted the tender, withdraw its acceptance of the tender; and c) if HKCMCL has entered into the Contract with the tenderer, terminate the Contract.
(iii) By submitting a tender, a tenderer is regarded to have undertaken to indemnify and keep indemnified HKCMCL against all losses, damages, costs or expenses arising out of or in relation to any breach of any of the representations and/or warranties in Clause (i).
(iv) A breach by a tenderer of any of the representations and/or warranties in Clause (i) may
prejudice its future standing as a Service Provider or service provider of HKCMCL.
(v) Clause (i) shall have no application to a tenderer’s communications in strict confidence with its own insurers or brokers to obtain an insurance quotation for computation of the prices quoted in its tender, or with its professional advisers, consultants or sub‐Service Providers to solicit their assistance in preparation of its tender.
(vi) The rights of HKCMCL under Clause (i) to (iv) are in addition to and without prejudice to any
other rights or remedies available to it against any tenderer.
14 Other terms and conditions
Tender Ref. T/2017/015 RFP – Page 11
14.1 All materials and data in connection with the RFP are required to be treated as confidential information and must not be made available to other parties without the prior written consent of HKCMCL.
14.2 HKCMCL is not obliged to accept any proposal and will not be responsible for any cost in preparing, submitting or elaborating on the proposal.
14.3 HKCMCL is not bound to accept the proposal with the highest score or the lowest price.
14.4 Without prejudice to the generality of other general conditions of tender and special condition of tender, HKCMCL may reject a tender which in the opinion of the HKCMCL is unreasonably low in terms of price and may therefore affect the tenderer’s capability to carry out and complete the Contract and/or deliver work of the quality required in accordance with the terms of the Contract.
14.5 HKCMCL reserves its right to reject any and all proposals received as a result of this request, or to negotiate separately with competing proposers.
14.6 HKCMCL reserves its right to change any of the above any time at its absolute discretion without notice to service providers.
14.7 HKCMCL reserves the right to cancel this RFP at any time during the process for lack of response or for other reasons deemed appropriate by HKCMCL.
Tender Ref. T/2017/015 RFP Appendix A – Page 1
Appendix A
Requirement Table
The proposed Service must fulfill all requirements marked in ‘Mandatory’. Any proposal which fails to fully meet the mandatory requirements will not be considered. Additional marks will be given if the Service can meet the ‘Desirable’ requirements.
Item Requirements (Mandatory/ Desirable/ Future)
Whether Complied with (Yes / No)
1 Scope of Services
1.1 The scope of the tender is to design, engineer, supply,
install, test and commission a proof of concept (POC) trial
of an AI platform and applications including but not
limited to natural language processing and non‐human
interaction.
Mandatory
1.2 Propose necessary tools for development, execution and maintenance of the knowledge base of the AI platform.
Mandatory
1.3 POC to demonstrate the use of AI technology as a
Concierge to physically direct visitors around the place,
introduce them relevant information about the place and
response general questions such as Cyberport services
information.
Mandatory
1.4 POC to show the use of AI technology as an assistant in
the process of Shuttle Bus Ticket payment process,
including below functional modules:
Payment: Pay by TNG payment.
Mandatory
Payment: Pay by Credit Card and by Octopus card. Desirable
Printing: Print thermal Receipt as Bus Ticket. Mandatory
Top up service for TNG payment via credit card or
Octopus card.
Desirable
Other intelligent functions: Virtual AI Helper;
Notification to users via mobile (if any).
Desirable
1.5 Setup of system environment for development and
testing (HKCMCL will provide infrastructure and necessary
operation system Licenses).
Mandatory
1.6 Provide at least two sets of robots together with its
charging kids/apparatus to demonstrate the capabilities
during Services Period.
Mandatory
1.7 Provide English conversation library with 100 Question
and Answer Pairs, and 5 Conversational Flows.
Mandatory
Tender Ref. T/2017/015 RFP Appendix A – Page 2
Item Requirements (Mandatory/ Desirable/ Future)
Whether Complied with (Yes / No)
1.8 Provide necessary consultation services to assist HKCMCL
during the course of development and subsequent on‐
going support.
Mandatory
1.9 The service platform shall be capable to extend to other uses (e.g. special event greeting) through customisation.
Desirable
2 Service Period
2.1 The Service Provider shall serve a one‐year term (i.e. from
1 January 2018 to 31 December 2018), with an option for
HKCMCL to renew for a further period not exceeding four
years at HKCMCL’s discretion.
Mandatory
3 Specifications/Requirements
3.1 At least 4 years solid experience in developing
applications/solutions using proven AI technology that
must be presence in the market at least 10 years.
Mandatory
3.2 Proposed consultants should meet the following qualifications:
At least 4 years solid experience in developing applications/solutions using proven AI technology that must be presence in the market at least 10 years.
Mandatory
3.3 The AI technology should be able to support the following
languages:
English
Traditional Chinese (Native Hong Kong Cantonese)
Simplified Chinese (Putonghua)
Mandatory
French
German
Spanish
Filipino
Indonesian
Italian
Dutch
Finnish
Turkish
Arabic
Desirable
3.4 The AI technology should have at least 2 local paid
commercial project references using similar technology
(preferably with local Cantonese) in past 12 months.
Mandatory
Tender Ref. T/2017/015 RFP Appendix A – Page 3
Item Requirements (Mandatory/ Desirable/ Future)
Whether Complied with (Yes / No)
3.5 Regular review by HKCMCL on the project deliverables are
required.
Mandatory
3.6 Consultants should log and follow‐up on issues found
during these reviews.
Mandatory
3.7 Consultants may be required to work on‐site and in non‐
office hours.
Mandatory
3.8 The service platform should show the ability of future
integration with Cyberport backend systems (e.g.
Customer Relationship Management system).
Desirable
3.9 HKCMCL reserves the rights to request change of
personnel where necessary.
Mandatory
4 Security Requirement
4.1 The system shall comply with the following regulations and policy of HKCMCL, in particular the data protection: [Mandatory]
Cyberport Information Security Policy
IT Security Guidelines and Regulations under Cyberport Information Security Manual
Mandatory
5 Project Deliverables and Schedule
5.1 The Service Provider should provide maintenance, support and warranty for the whole solution for one (1) year after final acceptance. The support must be 12x5x4 (i.e. 9am – 9pm, Monday to Friday) with a response time of 4 hours.
The Service Provider’s staff will arrive on‐site within response time commitment (from the time HKCMCL make such request) for on‐site support and resolve the issue within resolution time commitment.
The Service Provider must submit in their technical proposal the ‘Escalation Procedures’ with required contact names, E‐mail’s and mobile numbers in order to solve any technical and non‐technical problems throughout the life cycle of the project and warranty period.
Mandatory
Tender Ref. T/2017/015 RFP Appendix A – Page 4
Item Requirements (Mandatory/ Desirable/ Future)
Whether Complied with (Yes / No)
5.2 Source Code for Custom‐Made Software
a) If the proposed solution is a custom‐made software rather than a commercial‐off‐the‐shelf software, the system source code and any associated files, reference files, and development software (and related documentation and licenses) used to compile, develop, and build, etc. the executable code or “source code” must be provided to HKCMCL. The source code should be well documented in accordance with industry software engineering practices.
b) The software developer shall retain intellectual property rights. HKCMCL shall have a license for perpetuity for use as it applies solely to this project, including the right to modify/enhance. The software code may not be sold or used, in part or in whole, in any other project or application other than that intended by this RFP, in part or in whole, by HKCMCL or any other party. If a Sub‐Service Provider is used to write the software, the Service Provider shall include, as part of the documentation submittal, a signed letter on Sub‐Service Provider letterhead, granting HKCMCL ownership, use, and modification rights of the code and documentation as defined herein.
Mandatory
5.3 Project Management
The Service Provider shall have direct responsibility for the provision of the Services. The Service Provider shall be responsible for meeting specific performance targets and demonstrating continuous improvements in sales, cost, quality and service.
The Service Provider shall establish a project team to carry out all works for the project.
• Dedicate a Project Manager (the major point of contact to HKCMCL) to assure the timeliness and quality of the supplied services and deliverables, to coordinate work and collaboration with all stakeholders of the project, HKCMCL staff and Service Providers (if any), and to drive project deliverables associated with the proposed solution.
• Conduct and hold regular project meetings with HKCMCL’s project representatives.
• Prepare and make available all project documentations according to the agreed schedule.
Mandatory
Tender Ref. T/2017/015 RFP Appendix A – Page 5
Item Requirements (Mandatory/ Desirable/ Future)
Whether Complied with (Yes / No)
5.4 Project Deliverables
The following document deliverables are expected:
• Project Plan • User Requirements Document • Detailed Design Report • Functional Test Plan • Acceptance Test Plan • Configuration Document • Hardware and Software Inventory • Updates to existing Cyberport operations and
security documentation • Minutes of all meetings with various concerned
parties during the project period
Mandatory
5.5 The Service Provider shall provide relevant training to the HKCMCL’s user and system administrator. The training syllabus shall cover all functional requirements and system requirements.
Mandatory
5.6 Project Plan
The implementation works are expected to take up to three (3) months to complete.
The Service Provider should propose a Project Plan meeting all of the following criteria:
a) Key Milestone 1 – AI Environment should be accepted by HKCMCL by 30 November 2017 (Key Date 1).
b) Key Milestone 2 ‐ Acceptance Test of General Frequently Asked Questions of Phase 1 should be completed successfully by 31 December 2017 (Key Date 2).
c) Key Milestone 3 ‐ Acceptance Test of Tour Guide and Shuttle Bus Ticketing should be completed successfully by 31 January 2018 (Key Date 3).
Mandatory
6 Developer & Testing Environment
6.1 The vendor shall provide distinct / separate development,
testing and production environments for testing,
development, training, quality control.
Mandatory
6.2 The testing environment shall include a selected amount
Authorized Name with Company Chop: _______________________________________
Tender Ref. T/2017/015 RFP Appendix C ‐ Page 1
Appendix C Existing IT Infrastructure of HKCMCL
Network diagram:
Tender Ref. T/2017/015 RFP Appendix C ‐ Page 2
Major Hardware specification:
Cisco UCS M3 blade server
EMC VNX 5300 SAN Storage
Cisco IronPort C170 SMTP Gateway
Major Software specification:
Microsoft Windows Server 2008 R2 SP1 with Hyper‐v
Microsoft SharePoint 2013 Standard
Microsoft SQL 2012 Standard
Microsoft Office Web App 2013
Microsoft Windows 2012 Standard Active Directory
Appendix D
HONG KONG CYBERPORT MANAGEMENT COMPANY LIMITED
(香 港 數 碼 港 管 理 有 限 公 司)
Articles of Agreement
for
Robotic Concierge Services
(Tender Ref. T/2017/015)
Page 1
ARTICLES OF AGREEMENT
THIS AGREEMENT is made on the day of 2017. BETWEEN:‐
(1) HONG KONG CYBERPORT MANAGEMENT COMPANY LIMITED (香 港 數 碼 港 管 理
有 限 公 司) of Units 1102‐1104, Level 11, Cyberport 2, 100 Cyberport Road, Hong
Kong (together with its successors and assigns, “HKCMCL”); and (2) [Company name in English and in Chinese] of [address], a company incorporated in
and in accordance with the laws of Hong Kong (the “Service Provider”). NOW IT IS HEREBY AGREED as follows:‐ 1. Words and expressions used in these Articles of Agreement shall have the same
meaning as are respectively assigned to them in the Conditions of Contract (the “Contract”) attached hereto.
2. In consideration of the payments to be made by HKCMCL to the Service Provider as
set out in the Contract, the Service Provider hereby covenants with HKCMCL to provide the Service and perform the Service in accordance with the Contract.
3. HKCMCL hereby covenants to pay to the Service Provider in consideration of the
execution of the Service such sums as may be payable to the Service Provider in accordance with the Contract at the times and in the manner prescribed by the Contract.
4. The Contract comprises the entire agreement between the parties hereto relating to
the transactions provided for in the Contract and supersedes any previous agreements between the parties relating thereto or any part thereof. Save to the extent that any statement, condition, qualification, warranty, representation or undertaking made in the tender submission, or in any discussion or correspondence thereon or relating thereto, is expressly incorporated in the Contract, the same is not so incorporated and is hereby withdrawn.
Page 2
IN WITNESS whereof this Agreement has been executed as a deed the day and year first above written. SIGNED BY ) For and on behalf of ) Hong Kong Cyberport Management ) Company Limited )
香 港 數 碼 港 管 理 有 限 公 司 )
Hong Kong Cyberport Management Company Limited (HKCMCL) in the presence of :‐ SIGNED BY ) For and on behalf of ) ) ) i (the Service Provider) in the presence of :‐
Appendix E
HONG KONG CYBERPORT MANAGEMENT COMPANY LIMITED
(香 港 數 碼 港 管 理 有 限 公 司)
Conditions of Contract
for
Robotic Concierge Services
(Tender Ref. T/2017/015)
T/2017/015 CoC ‐ Page 1
Interpretation
In this Contract, unless the context otherwise requires:
a) “Key Milestones” means the satisfactory completion of setup of the AI Environment and the
satisfactory completion of Acceptance Tests.
b) “Key Dates” means the acceptance date of the AI Environment and the Acceptance Tests.
c) use of the terms “including”, “include” or “includes” shall be interpreted to be followed by the phrase
“without limitation”;
d) no rule of construction shall apply to the disadvantage of a party because that party was responsible
for the preparation of this Contract or any part thereof;
e) references to (or to any specific provision of) this Contract or any other document shall be construed
as references to this Contract, that provision or that document as modified, amended or
supplemented from time to time with the agreement of the relevant parties and in force at any
relevant time;
f) clause headings, schedule headings, annexure titles and the index have been inserted for ease of
reference only and shall not affect construction or interpretation;
g) words importing the singular meaning include the plural meaning and vice versa;
h) words of the masculine gender include the feminine and neuter genders and vice versa;
i) references to System, Works, Project, Equipment and Software shall include references to any part
thereof where the context so requires;
j) references to a person includes an individual, firm, body corporate, unincorporated association,
government or governmental, semi‐governmental or local authority or agency;
k) references to Clauses, sub‐clauses, refer to clauses and sub‐clauses to the Conditions and references
to paragraphs refer to paragraphs in the Schedules;
l) the Appendices and Schedules shall be deemed to form part of this Contract;
m) words denoting an obligation on a party to do any act, deed, matter or thing include an obligation to
procure that it be done and words placing a party under a restriction include an obligation not to
permit, cause or allow (so far as it lies within its ability to prevent) contravention of the restriction;
n) references to any party shall be to it and its permitted assigns and any person for the time being
entitled (by assignment, novation, operation of this Contract or otherwise) to that party’s rights
under this Contract (or any interest in those rights) or who, as administrator, liquidator or otherwise,
is entitled to exercise those rights; and in particular those references include a person to whom those
rights (or any interest in those rights) are transferred or passed as a result of merger, division,
reconstruction or other form of reorganisation of that party;
T/2017/015 CoC ‐ Page 2
o) where a word or expression is defined, cognate words and expressions shall be construed accordingly.
Except where otherwise specifically provided, if there is any conflict or inconsistency between the terms
of the main body of this Contract, the Schedules and the terms of any documents generated in accordance
with this Contract or incorporated by reference, the order of priority shall be the terms of the main body
of this Contract, then the Schedules, and then any other documents generated in accordance with this
Contract.
1 Construction of Contract
1.1 Unless the context otherwise requires, the defined terms in this document shall have the meanings
ascribed to them in the above.
1.2 If there is any inconsistency, ambiguity or discrepancy in or between any of the documents which make
up the Contract, the following order of precedence shall apply:
1.2.1 the Articles of Agreement;
1.2.2 these Conditions of Contract;
1.2.3 the Request for Proposal; and
1.2.4 the Service Provider’s proposal.
2 Appointment of Service Provider
2.1 Neither HKCMCL nor any consultant, nor any person, firm or company associated with or employed by
HKCMCL or any consultant shall owe any duty of care or otherwise be liable to the Service Provider,
whether under this Contract or otherwise, in respect of any errors in or omissions from any site
investigation reports, documents or other information made available to Service Provider whether prior
to or after the Effective Date, or any differences between the nature or extent of conditions actually
encountered in the execution of the Works and the nature or extent of conditions disclosed in or implied
by the information in any site investigation reports, documents or other information whether or not
caused by the said errors or omissions.
2.2 The Service Provider acknowledges and confirms that:
2.2.1 Prior to the Effective Date, it has carried out all necessary reviews, investigations and analyses to satisfy itself of the nature of
(a) the Specification, Drawing, the Site and the Works to be executed; and
(b) any other matters relevant to the compliance with its obligations in accordance with this Contract;
2.2.2 it shall not be entitled to recover any additional payment howsoever caused or to extension of time for completion of the Project, for costs or delays which arise from any issue related to the Site;
T/2017/015 CoC ‐ Page 3
2.2.3 it shall not be entitled to recover any additional payment howsoever caused or extension of time for completion of the Project in respect of reliance on any error, omission or difference as referred to in Clause 2.1;
2.2.4 it has or will have all information, rights, hardware, software, equipment, personnel and premises which it can reasonably foresee will be necessary to enable it to carry out the Works in accordance with this Contract;
2.2.5 it shall not be entitled to make any claim against HKCMCL under this Contract on the grounds of its assessment, misunderstanding or misapprehension of the Project including the Project Plan, the Specification, the Site and the Works to be executed or on the grounds that incorrect or insufficient information was given to it by any person, whether or not employed by HKCMCL. The Service Provider shall not be relieved from any risks or obligations imposed on or undertaken by it under this Contract on any such grounds.
2.2.6 Nothing in the Contract confers on the Service Provider the exclusive right to provide any of the Works or any other services to HKCMCL.
2.2.7 The Service Provider acknowledges and agrees that the terms of this Clause are fair and reasonable in all the circumstances.
3 Preparation of the Site
3.1 The Service Provider shall supply to HKCMCL for approval in a reasonable time before the relevant Delivery
Date any request for storage space and working space on Site. Any such request shall be accompanied
by plans and drawings and explanatory notes explaining the reasons for the need for such space.
HKCMCL shall approve such request subject to any reasonable adjustments it considers necessary.
3.2 The Service Provider shall be responsible for the provisioning, installation and erection of all storage and
working space and other structures and facilities as have been approved by HKCMCL pursuant to Clause
3.1 unless HKCMCL indicates in its approval that such facilities are already available on Site and that the
Service Provider may have use of such facilities on such terms and conditions as HKCMCL may specify and
always in accordance with the terms of this Contract.
3.3 The Service Provider shall supply to HKCMCL in reasonable time before commencement of Works, a site
preparation plan and such further information and assistance as may be necessary to enable HKCMCL to
prepare the Site for the carrying out of the Works and to provide proper environmental and operational
conditions for the efficient working and maintenance of the Equipment. For this purpose, the Service
Provider shall make available to HKCMCL free of charge, for a reasonable period of time, the advice of a
suitably qualified engineer. HKCMCL shall use reasonable endeavours to ensure the Site meets the
requirements of the site preparation plan, but shall not be liable for any discrepancy between the site
preparation plan and the conditions of the Site prior to commencement of the Works. Notwithstanding
the foregoing, any request for an extension of time or to recover additional payment in respect of any
discrepancy between the site preparation plan and the condition of the Site prior to commencement of
the Works shall be determined according to the terms of Clause 12 as if such request were a proposal for
a Change thereunder.
T/2017/015 CoC ‐ Page 4
4 Delivery and Installation
4.1 The Service Provider shall deliver to the Site on the relevant Delivery Date the:
4.1.1 Software and Equipment in such quantities as specified in the Specification; and
4.1.2 Operating Manuals relating to the System, Software and Equipment in such quantities and in the language versions both as specified in the Specification
The Service Provider shall install the Software and Equipment at the Site in accordance with the relevant
timing and sequencing schedules set out in the Project Plan and the Specifications.
4.2 Subject to Clause 4.3, all packing cases, skids and other packing materials used for delivery of the Software
and Equipment to the Site must be removed by the Service Provider within seven (7) days of the date of
delivery of the Software and Equipment. The cost of such removal shall be borne by the Service Provider.
4.3 Clause 4.2 shall not apply to the extent that HKCMCL expressly designates a third party to carry out the
clearance of rubbish or refuse, and HKCMCL shall notify the Service Provider accordingly and shall
stipulate whether any payments are due from the Service Provider for the provision of such services.
4.4 The Service Provider shall after installation of the Software and Equipment, reinstate the Site to the
condition prevailing on the day immediately prior to which the installation commenced, subject to any
changes undertaken by the Service Provider and agreed by HKCMCL in relation to the installation.
4.5 The cost of delivery shall be borne by the Service Provider.
5 Title and Risk
5.1 The title to the Equipment and the product of the Works, free from any encumbrance, shall pass to
HKCMCL upon delivery to the Site.
5.2 The risk in any part of the System shall pass to HKCMCL when that part of the System is accepted by
HKCMCL in accordance with Clause 17.
5.3 If any Acceptance Tests in respect of the System have not been successfully completed by the relevant Key
Date, HKCMCL may by written notice to Service Provider at its sole option, without prejudice to its rights
under Clauses 13 and 25, take any risk in the System if it elects to accept the System pursuant to Clause
17.3.3.
5.4 The terms of this provision shall be without prejudice to any obligation on the part of Service Provider to
effect and maintain at his own expense any insurance in accordance with the terms of Clause 32.
6 Detailed Design
6.1 Service Provider shall prepare any relevant Detailed Design using the Specification and any other relevant
information in consultation with HKCMCL and shall complete and deliver the relevant Detailed Design to
T/2017/015 CoC ‐ Page 5
HKCMCL by the applicable date specified in the Project Plan. Service Provider shall, in developing any
Detailed Design in accordance with this Clause, provide to HKCMCL sufficient information to enable
HKCMCL to understand and identify how each relevant requirement in the Specification and any other
relevant information has been incorporated in such Detailed Design.
6.2 HKCMCL gives no warranty that the Specification and any other relevant information provided by HKCMCL
is exhaustive or sufficient or appropriate for the preparation of any Detailed Design.
6.3 At any time prior to or at the same time as presentation of any Detailed Design under Clause 6.1, Service
Provider may present HKCMCL with written details of any proposed revisions to the Specifications and/or
the Project Plan which Service Provider may deem optimal as a result of producing the Detailed Design.
Any such proposed revisions shall be determined according to the terms of Clause 12 as if such request
were a proposal for a Change thereunder.
6.4 HKCMCL shall approve or reject any Detailed Design and any revisions to the Specifications and / or the
Project Plan presented by Service Provider under Clauses 6.1 and 6.3, or respond with comments and/or
requests for further information or amendment within twenty‐one (21) days of receipt. Service Provider
shall provide any additional information reasonably requested, take account of all reasonable comments
and/or all requests for amendments received from HKCMCL and shall incorporate the same into revised
versions of the Detailed Design and deliver the revised version to HKCMCL within seven (7) days of those
comments and/or requests. HKCMCL shall then respond with comments and/or requests for further
information or amendment within seven (7) days of receipt of the revised version of the Detailed Design.
6.5 Prior to having recourse to the provisions of Clauses 40 and 41, Service Provider shall in good faith work
with HKCMCL to resolve any problems with any Detailed Design failing which, if the parties have not
agreed such Detailed Design by twenty‐eight (28) days after HKCMCL has responded with its final
comments, requests or amendments under Clause 6.4, and the failure to agree is due to:
6.5.1 the Detailed Design not meeting the requirements of the Specification as revised in accordance with Clause 6.4 or any other default by Service Provider, then HKCMCL may terminate this Contract on giving written notice to Service Provider in accordance with Clause 27.3; or
6.5.2 due to any other circumstances then:
(a) the parties shall work together to resolve any problems with the Detailed Design for a further period of twenty‐one (21) days or any other period agreed by the parties; and
(b) HKCMCL may terminate this Contract following the end of the period specified or other period if agreed in accordance with paragraph (i) above, on giving written notice to Service Provider in accordance with Clause 27.3; or
(c) HKCMCL may require Service Provider to continue to work on the Detailed Design, in which case any additional work shall be carried out on a time and materials basis at the rates specified in Clause 12 shall apply in respect of any resulting Change and (Clause 6.5 shall unless otherwise agreed, apply in respect of any subsequent failure to agree the Detailed Design.
6.6 Approval of the Detailed Design by HKCMCL shall be without prejudice to:
6.6.1 HKCMCL's right to reject the System or any part thereof in accordance with Clause 17; and
T/2017/015 CoC ‐ Page 6
6.6.2 HKCMCL’s right to instruct any Change under Clause 12.
6.7 Upon approval of any Detailed Design by HKCMCL, such Detailed Design shall become a part of the
Specification for the purposes of this Contract.
7 Intellectual Property
7.1 The Service Provider hereby agrees that all Intellectual Property Rights in the Project Intellectual Property
from the date hereof shall on creation or acquisition automatically vest in HKCMCL. Unless otherwise
required herein, Service Provider shall deliver two (2) hard copies and two (2) soft copies (in such
electronic format as HKCMCL may designate from time to time) of all Project Intellectual Property to
HKCMCL within five (5) days of its approval or acceptance by HKCMCL in accordance with the terms of this
Contract. HKCMCL shall use its reasonable endeavours to procure that HKCMCL shall grant Service
Provider a royalty free non‐exclusive licence to use the Project Intellectual Property during the Term to
the extent necessary and solely for the purposes of performing its obligations under this Contract.
7.2 Without prejudice to Service Provider’s obligation under Clause 24 to execute and deliver the Warranty
and Indemnity, Service Provider shall do all such things and sign all documents or instruments reasonably
necessary in the opinion of HKCMCL to enable HKCMCL to obtain, defend and enforce its rights in the
Project Intellectual Property. Without limiting the generality of the foregoing, Service Provider shall
ensure:
7.2.1 that all its employees and Sub‐Service Providers will be retained on the basis that Project Intellectual Property created by any of such parties shall be owned absolutely by HKCMCL; and
7.2.2 that its employees and shall procure that its Sub‐Service Providers do all acts and execute all documents requested by HKCMCL (including any formal assignments) to confirm the title of HKCMCL to the Project Intellectual Property created by any of such parties whether in connection with the registration of such title or otherwise.
7.3 The Service Provider hereby waives, or shall procure that the owner of any moral rights in the Project
Intellectual Property waives, all such moral rights as may arise therein.
7.4 Subject to the remaining provisions of this Clause, HKCMCL agrees that neither HKCMCL nor HKCMCL shall
acquire title to the Intellectual Property Rights in the Other Intellectual Property.
7.5 The Service Provider grants or shall procure that the beneficial owner thereof shall grant, to HKCMCL and
HKCMCL a royalty‐free, non‐exclusive, freely transferable, irrevocable and perpetual licence to use Other
Intellectual Property for all purposes relating to the Cyberport Project, including the design, construction,
reconstruction, practical completion, maintenance, reinstatement, extension, repair and operation of the
Cyberport Project.
7.6 Any restriction or limitations which apply to a licence granted under Clauses 7.1 or 7.5 (whether as a result
of the application of the licensor’s standard terms or otherwise) shall not affect Service Provider's
obligations in relation to the Project under this Contract.
7.7 HKCMCL shall be entitled to authorise any party to use Other Intellectual Property subject to and in
T/2017/015 CoC ‐ Page 7
accordance with the provisions of this Clause on behalf of HKCMCL in connection with HKCMCL' activities.
7.8 The Service Provider hereby indemnifies and agrees to procure that its Sub Service Providers will
indemnify and keep indemnified HKCMCL against all loss, liability, damages, costs, legal costs, professional
and other expenses of any nature whatsoever incurred or suffered by HKCMCL whether direct or
consequential (including any economic loss or other loss of profits, opportunity, business or goodwill)
arising out of any dispute or contractual, tortious or other claims or proceedings brought against HKCMCL
by any third party claiming relief by reason of the exercise of Intellectual Property Rights in the Project
Intellectual Property and Other Intellectual Property including any use of any material or rights embodied
in the Project Intellectual Property and Other Intellectual Property.
7.9 The Service Provider hereby irrevocably and by way of security appoints and shall procure that each of its
Sub‐Service Providers appoints HKCMCL to be its lawful attorney and in its name and on its behalf to do
and execute all acts and instruments as may be necessary for the purpose of implementing the provisions
of this Clause which Service Provider has failed to do. Service Provider or any of its Sub‐Service Providers
agrees to confirm and ratify all such acts and instruments lawfully and properly done in accordance with
the provisions of this Clause and shall procure that each of Sub‐Service Providers shall do the same.
7.10 Upon the expiration or termination of this Contract, Service Provider shall at its own expense promptly
deliver to HKCMCL all Project Intellectual Property and copies thereto then in Service Provider’s or its Sub‐
Service Providers’ custody, control or possession.
7.11 The provisions of this Clause shall survive the expiration or termination of this Contract.
8 Software
8.1 Without limiting the generality of Clause 7 above, the provisions of this Clause shall in addition apply to
Software.
8.2 Any Service Provider’s Software and Third Party Software not identified in Specification which Service
Provider wishes to supply may be introduced only with the prior consent of HKCMCL.
8.3 In respect of Service Provider’s Software that is not Commercially Available, Service Provider shall either
provide the Source Material related thereto to HKCMCL or enter into an arrangement with HKCMCL and
the Escrow Agent for the deposit of the Escrow Materials, in a secured location and in a medium to be
determined by HKCMCL. Such escrow arrangement shall include a procedure for the verification of the
relevant Escrow Materials by the Escrow Agent and a representative of HKCMCL. Service Provider
undertakes to HKCMCL that the Escrow Materials shall be kept fully up‐to‐date and will truly and
accurately reflect all Updates and Upgrades thereto, and for such purposes, Service Provider shall present
for verification and deposit with the Escrow Agent a copy of such Updates and Upgrades within seven (7)
days of their availability.
8.4 In respect of Third Party Software that is not Commercially Available, Service Provider shall procure that
the relevant third party licensor enters into an arrangement with HKCMCL and the Escrow Agent for the
deposit of the Escrow Materials, in a secured location and in a medium to be determined by HKCMCL.
Such escrow arrangement shall include a procedure for the verification of the relevant Escrow Materials
T/2017/015 CoC ‐ Page 8
by the Escrow Agent and a representative of HKCMCL. Service Provider shall procure that such third party
licensor undertakes to HKCMCL that Escrow Materials shall be kept fully up‐to‐date and will truly and
accurately reflect all Updates and Upgrades thereto, and for such purposes, the licensor shall present for
verification and deposit with the Escrow Agent a copy of such Updates and Upgrades within seven (7) days
of their availability.
8.5 Without prejudice to Clauses 8.4 and 8.5, Service Provider shall give HKCMCL written notice of any plans
to withdraw any Service Provider’s Software or Third Party Software from marketing. Subject to Clause 12,
Service Provider shall six (6) months prior to any withdrawal of technical support for such withdrawn
Software:
8.5.1 work with HKCMCL to evaluate replacement products and assist HKCMCL in the migration from the withdrawn Software to replacement Software; and
8.5.2 where such replacement products do not exist, assist HKCMCL in investigating an alternative solution and deliver and implement such solution, provided that for the purposes of Clause 12 it is agreed that, while the Contract Sum may as a result be reduced, no additional payments shall be due.
8.6 The provisions of this Clause shall survive the expiration or termination of this Contract.
9 Project Plan and Completion
9.1 The Service Provider shall perform its obligations under this Contract strictly in accordance with the timing
and sequencing specified in the Project Plan. The Project Plan shall set out the timetable in which
Service Provider shall deliver the Equipment and Software, and carry out the Works and the Acceptance
Tests, including the timetable for the design, build, installation, testing, handover, maintenance and
support of the System, training staff and all Key Dates thereto.
9.2 The Service Provider shall, in accordance with the provisions of this Contract, execute the Project with
due diligence and expedition and shall ensure that the Project and any part thereof are completed by the
relevant Key Dates. Service Provider shall commence the Project on the Effective Date and shall
continuously proceed with and execute the same and all other parts of the Project in accordance with the
requirements of this Contract. Service Provider shall not, and shall procure that each of its Sub‐Service
Providers shall not, do anything to adversely affect the timely development of the Project or any part
thereof.
9.3 Upon the successful completion of the final Acceptance Test scheduled, HKCMCL shall issue the
Completion Certificate to Service Provider. The Completion Certificate shall certify that the Project is
complete and in accordance with the requirements of this Contract. The issue of the Completion
Certificate shall not amount to, or be deemed to be, conclusive evidence that the quality of materials or
the standard of workmanship used by Service Provider in the execution of the Project are in accordance
with this Contract.
10 Project Management
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10.1 The Service Provider shall appoint a Service Provider Project Manager who shall be responsible on behalf
of Service Provider for the management and co‐ordination of all matters relating to the Project and shall
appoint a Service Provider Project Team. HKCMCL shall appoint a Project Manager to be responsible for
the management and co‐ordination of HKCMCL’s responsibilities under the Contract and to liaise with
Service Provider Project Manager throughout the Project. All invoices, communications, documentation
and materials relating to the Project shall be sent to Service Provider Project Manager or the Project
Manager at the address for notices set out in Clause 45 or as otherwise agreed between the parties.
10.2 The Service Provider shall implement, and maintain throughout the Term (both prior to and after the
Acceptance Date) performance, management, monitoring and reporting procedures as set out in the
Specification to ensure that the Project is carried out in accordance with this Contract and in a manner
designed to anticipate and avoid any problems.
10.3 The parties shall, in accordance with the Project Management Procedures, review the responsibilities of
Service Provider Project Team and the individuals included in Service Provider Project Team.
10.4 The Service Provider shall, unless such a change is due to resignation, sickness or other similar cause
beyond the reasonable control of Service Provider, consult with the Project Manager if it wishes to make
any changes to Service Provider Project Team and the Project Manager shall not, without prejudice to the
remaining provisions of this Clause, withhold its consent to any changes to Service Provider Project Team
proposed by Service Provider as a result of any such review or consultation unless the Project Manager
reasonably believes that such a change will have a detrimental effect on the Project.
10.5 Each party shall comply with the Project Management Procedures. Approvals given by HKCMCL under
the Project Management Procedures shall not, however, prejudice any other rights or remedies HKCMCL
may have in respect of any failure by Service Provider to perform its obligations under this Contract.
10.6 Without prejudice to any other provision of this Contract, the Project Manager may issue to Service
Provider:
10.6.1 any instruction which, in his opinion, is necessary for Service Provider to comply with its obligations under this Contract; and
10.6.2 any instruction which, in his opinion, is desirable in connection with the completion of any part of the Project in accordance with this Contract and which is not issued as a result of any breach or default on the part of Service Provider, including changing any sequence or timing of the Project, or any part thereof;
10.6.3 and Service Provider shall comply with all such instructions issued by the Project Manager without any right or entitlement on the part of Service Provider to receive any payment from HKCMCL in respect thereof, whether by way of damages or otherwise howsoever, or any adjustments in the Contract Sum.
10.7 Where the Service Provider is required by this Contract to submit any drawings or documents to the
Project Manager for review, consent or approval, he shall do so within such period as may be stipulated
in this Contract or, in the absence of any stipulation, in time to enable the Project Manager to properly
examine the drawings or documents without delaying the progress of the Project.
10.8 Without prejudice to any other provision of this Contract, Service Provider Project Manager shall on
reasonable notice from the Project Manager, attend any meeting convened by the Project Manager in
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respect of the Project.
10.9 In addition to its obligations under the Project Management Procedures, Service Provider shall:
10.9.1 ensure Service Provider Project Manager or his deputy are the persons responsible for and have authority in respect of the implementation of the Project on behalf of Service Provider and that they perform the responsibilities referred to in the Project Management Procedures;
10.9.2 obtain the prior written consent of the Project Manager before the appointment or replacement of Service Provider Project Manager or his deputy or any other holders of key positions in Service Provider Project Team (and Service Provider acknowledges and agrees that the Project Manager shall consult and obtain the prior approval of HKCMCL in respect of each such appointment or replacement), and ensure that any replacements for any member of Service Provider Project Team shall have undergone, prior to assuming duties in connection with the Project, a suitable period of familiarisation with the Project. HKCMCL acknowledges that it may not be possible for an individual to undergo a suitable period of familiarisation in accordance with this Clause 10.9.2 where that person’s appointment is as a result of resignation, sickness or other similar cause beyond the reasonable control of Service Provider. Service Provider shall nevertheless use reasonable endeavours to minimise any impact to the Project; and
10.9.3 give not less than seven (7) days’ notice to a designated representative of HKCMCL of any progress meeting held in relation to the Project and inform such representative of his right to attend the meeting.
10.10 Notwithstanding any other provision of this Contract, no act or omission by the Project Manager or any
delegate in exercising any of its duties or powers under this Contract, including, without limitation, any
review, endorsement, agreement or approval or the giving of any permission or consent, shall relieve
Service Provider in whole or in part from any obligation or liability under or arising out of this Contract or
give rise to any waiver or estoppel in relation to any of its obligations or liabilities under or arising out of
this Contract.
10.11 The Service Provider shall keep HKCMCL up to date on any developments in the audio visual, media and
information technology industries which may be relevant to the Project.
10.12 The Service Provider shall use its expertise to investigate new technologies which would have the effect
of introducing new enhanced services which are required or desired by tenants and residents of Cyberport,
improving the quality of services delivered to the same, increasing revenues from the use and exploitation
of the System, reducing the cost of the Project and the cost of operating the System and, where
appropriate, shall propose Changes in accordance with Clause 12.
11 Project Personnel
11.1 The Service Provider shall throughout the Term:
11.1.1 take reasonable steps to ensure that personnel engaged in the Project are appropriately experienced, honest, qualified, skilled and trained in the work which they are to perform and that they perform that work with reasonable skill and care;
11.1.2 implement any schemes of training and instruction from time to time for all Service Provider’s or Sub‐Service Provider’s staff engaged on all matters concerned with the Project which are
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necessary to ensure that Service Provider complies with its obligations under this Contract;
11.1.3 ensure that personnel engaged in the Project comply with HKCMCL’s health and safety policy, its computer security policy and any other policy (in each case where such policies are notified to Service Provider) and reasonable direction of the Project Manager in relation to the security of HKCMCL’s personnel, Direct Service Provider’s personnel, users, computer and communication systems, premises and the Site;
11.1.4 either take reasonable steps to ensure that its staff display any form of identification provided by HKCMCL within the Site, or provide its staff with a form of identification acceptable to HKCMCL, acting reasonably, and take reasonable steps to ensure that staff display that identification at all times when at the Site;
11.1.5 take reasonable steps to ensure that, while any of its agents or Sub‐Service Providers are on the Site, they will conform to HKCMCL's normal codes of staff behaviour and security practice as disclosed to Service Provider and (where applicable) to HKCMCL's standard conditions of employment as disclosed to Service Provider by HKCMCL; and
11.1.6 supply written details of personnel whom Service Provider engages, employs or appoints in connection with this Contract and, in respect of regular members of Service Provider Project Team, written details of their qualifications and experience and, if so requested by HKCMCL, provide a list of the names and work addresses of all persons who may require admission, in connection with the performance of this Contract, to the Site and any premises occupied by or on behalf of HKCMCL, specifying the capacities in which they are concerned with this Contract and giving such other particulars as HKCMCL may reasonably require.
11.2 HKCMCL may, to the extent reasonably necessary to preserve the standards and reputation of HKCMCL
and following consultation with Service Provider sufficient to (except in case of gross misconduct) allow
Service Provider a reasonable period of time to remedy the problem or obtain and brief replacement
personnel, instruct Service Provider to remove any personnel engaged by Service Provider on the Project
(including personnel in Service Provider Project Team) and Service Provider shall promptly comply.
Service Provider shall not be excused performance of its obligations under this Contract as a result of
compliance with any such instruction.
12 Change Procedure
12.1 The Project Manager may instruct Service Provider to carry out any Changes which are, in his opinion,
necessary or desirable in connection with the Project. Any Change shall be made only in accordance
with the provisions of this Clause. Service Provider shall not execute any Change without the prior issue
of an instruction by the Project Manager under Clauses 12.2 or 12.3 and shall continue to perform this
Contract as if any request, recommendation or proposal for a Change had not been made.
12.2 The Service Provider may propose to the Project Manager any Change which Service Provider considers
necessary or desirable in connection with the Project. Service Provider’s proposal shall describe the
proposed Change in detail and include details of the financial, timing and quality effects of the proposed
Change, including any adjustments to the Contract Sum. Upon consideration of such proposal, the
Project Manager may in his sole discretion instruct the Change pursuant to this Clause 12.2 and the Service
Provider shall be required to promptly commence the Change.
12.3 The Project Manager may request the Service Provider to submit an estimate providing details of the
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financial, timing and quality effects of any Change requested by the Project Manager in respect of the
Project, including any adjustments to the Contract Sum. Service Provider shall submit to the Project
Manager such estimate within seven (7) days of receipt of the request. Upon consideration of such
estimate, the Project Manager may in his sole discretion instruct the Change pursuant to this Clause 12.3
and Service Provider shall be required to promptly commence the Change. Subject to Clause 12.5 in the
event that the Project Manager does not accept Service Provider’s estimate proposed under this Clause
12.3, he may nevertheless instruct Service Provider to commence the Change and Service Provider shall
promptly carry out such Change.
12.4 The instruction of any Change by the Project Manager pursuant to this Clause shall not vitiate or invalidate
this Contract, the terms of which shall continue to apply to the Project as varied.
12.5 Where Service Provider considers that the Contract Sum should be adjusted by reason of any instruction
issued under Clauses 12.2 or 12.3, and where an adjustment to the Contract Sum has not previously been
agreed with the Project Manager prior to the issue of that instruction, then Service Provider shall notify
the Project Manager of the same within five (5) days of receipt of the instruction. Service Provider shall
also provide detailed particulars of the adjustment which it considers should be made to the Contract
Sum within seven (7) days of receipt of the instruction. As soon as practicable after the receipt of
particulars provided by Service Provider which it considers sufficient, the Project Manager shall, acting
reasonably, determine the adjustment to the Contract Sum, in accordance with Clause 20 and shall notify
Service Provider of such determination. The adjustment to the Contract Sum determined by the Project
Manager under this Clause 12.5 or agreed with the Project Manager, as the case may be, by reason of any
instruction issued under Clauses 12.2 or 12.3 shall be Service Provider’s sole remedy (save for any
extensions of time granted pursuant to Clause 12.8 in respect of the same) and Service Provider shall not
be entitled to any payment from HKCMCL, whether by way of damages or otherwise howsoever, by reason
of the issuance of any such instruction.
12.6 If the Service Provider disputes any determination of the Project Manager made pursuant to Clause 12.5,
then a dispute shall be deemed to have arisen and the provisions of Clauses 40 and 41 shall apply. For the
avoidance of doubt and without limiting the generality of Clauses 40 and 41, notwithstanding any such
dispute Service Provider shall promptly carry out the relevant Change.
12.7 The execution of any Change shall not be delayed during the period that any dispute is dealt with in
accordance with Clause 12.6.
12.8 In the event that the Service Provider believes that the instruction of any Change by the Project Manager
pursuant to this Clause entitles Service Provider to receive an extension of time for the completion of any
Key Milestone, Service Provider shall comply with Clause 13 and the Project Manager shall, acting
reasonably, assess and decide whether Service Provider may be entitled to an extension of any relevant
Key Dates, subject to and in accordance with the provisions of Clause 13. The Project Manager shall also
adjust the Contract Sum, to reflect the adjustment agreed or determined pursuant to this Clause, by
reason of the instruction of any Change by the Project Manager.
13 Notification of Delay and Extension
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13.1 The Service Provider shall give notice to the Project Manager as soon as Service Provider can reasonably
foresee an event occurring which is liable to cause delay or impediment to the completion of any Key
Milestone by the relevant Key Date. Such a notice shall in any event be given within seven (7) days after
commencement of such an event and shall state the likelihood and probable extent of the delay or
impediment and specify whether Service Provider considers it is, or may become entitled to, an extension
of time in respect of the effects of such event. The giving of such a notice by Service Provider to the
Project Manager shall not of itself automatically entitle Service Provider to an extension of time to any of
the Key Dates under Clauses 13.3 or 13.4.
13.2 The Service Provider shall use and continue to use its best endeavours to avoid or mitigate the effects of
such event on the completion of any Key Milestone, and shall as soon as practicable but in any event
within seven (7) days of notification pursuant to Clause 13.1, submit by further notice to the Project
Manager:
13.2.1 full and detailed particulars of the cause and actual extent of the delay or impediment (including all such particulars as shall have been supplied by any Sub‐Service Providers of Service Provider); or
13.2.2 where an event has a continuing effect or where Service Provider is unable to decide whether the effect of an event will actually cause delay to the completion of any Key Milestone by the relevant Key Date, such that it is not practicable for Service Provider to submit full and detailed particulars pursuant to Clause 13.2.1 above, a statement to that effect with reasons together with interim particulars (including details of the likely consequences of the event on the progress of the Project and an estimate of the likelihood or likely extent of the delay), and Service Provider shall thereafter submit to the Project Manager at intervals of not more than fourteen (14) days (or such other longer interval as the Project Manager shall direct), further interim particulars until the actual delay caused (if any) is ascertainable, whereupon Service Provider shall as soon as practicable but in any event within fourteen (14) days submit to the Project Manager full and detailed particulars of the cause and actual extent of the delay; and
13.2.3 details of the documents that will be maintained to support such a claim; and
13.2.4 details of the measures which Service Provider has adopted and/or proposes to adopt to avoid or mitigate the effects of such event upon the timely completion of the Key Milestone by the relevant Key Date;
13.2.5 and thereafter, Service Provider shall submit from time to time any further information relating to the delay or impediment to the Project Manager as soon as practicable after receipt of the same by Service Provider. The obligations of Service Provider in this Clause 13.2 are conditions precedent to its right to seek or obtain any extension of time pursuant to Clause 13.3.
13.3 Subject to Clause 2.2, if the event notified by Service Provider pursuant to Clause 13.1 is due to:
13.3.1 Force Majeure;
13.3.2 loss or damage occasioned by occurrences which are insured pursuant to the Contract, to the extent that the same is not due or contributed to directly or indirectly by any neglect, default, omission or breach of contract by Service Provider;
13.3.3 Project Manager’s instructions issued under Clause 12.1;
13.3.4 any act of prevention or breach of Contract by HKCMCL, his servants, agents and consultants;
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13.3.5 delay caused by or on the part of Direct Service Provider, other than as a result of the failure of Service Provider to carry out its co‐ordination responsibilities as specified in the Contract; or
13.3.6 delay caused by or on the part of Utility Undertakers;
then the Project Manager shall assess a fair and reasonable extension of the relevant Key Date relating to
the Key Milestone, provided that all such extensions of the relevant Key Date relating to the Key Milestone
under this Clause 13.3 shall not in aggregate exceed a period of sixty (60) days.
13.4 Except as provided in Clause 13.3, the Service Provider shall not be entitled to claim an extension of any
of the relevant Key Date for any other events whether or not notified by Service Provider pursuant to
Clause 13.1, including a shortage of equipment, plant, materials or labour or any instruction issued by the
Project Manager under Clause 12.
13.5 If, pursuant to Clause 13.3, the Project Manager considers that Service Provider may fairly be entitled to
receive an extension of any of the relevant Key Dates, the Project Manager shall, within fourteen (14) days,
or such further time as may be reasonable in the circumstances, upon receipt of full and detailed
particulars of the cause and actual effect of any delaying event, assess, decide, grant and notify Service
Provider of such an extension. The Project Manager in assessing and deciding any extension shall take
into account all the circumstances known to him at that time.
13.6 If the Project Manager decides that Service Provider is not entitled to an extension, the Project Manager
shall as soon as reasonably practicable, notify Service Provider accordingly.
13.7 The Service Provider shall not be entitled to an extension of time by reason of any delay unless such delay
actually affects the completion of a Key Milestone by the relevant Key Date.
13.8 Any extension to a Key Date shall not of itself entitle Service Provider to an extension to any other Key
Date.
13.9 As soon as practicable after the Project Manager has granted any extension of time to Service Provider in
respect of any Key Date, Service Provider shall revise the Project Plan to reflect such extension and shall
submit the revised Project Plan to the Project Manager for his consent.
13.10 Except as otherwise provided for in this Contract, any extension of time granted by the Project Manager
to Service Provider shall be deemed to be in full compensation and satisfaction for any loss or expense
sustained or sustainable by Service Provider in respect of any matter or thing in connection with such
extension and Service Provider shall not be entitled to receive any payment from HKCMCL, whether by
way of damages or otherwise howsoever by reason thereof or any adjustment in the Contract Sum.
Every extension shall exonerate Service Provider from any claim or demand on the part of HKCMCL for
the delay during the period of such an extension, but not for any delay which continues beyond such
period.
14 Quality Assurance and Inspection
14.1 In order to ensure that the System conforms to the requirements of this Contract, Service Provider shall
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establish, implement and maintain at all times during the execution of the Works a documented quality
system which complies with the requirements of ISO‐9001‐2000 as issued by the International
Organisation for Standardisation, or any later version thereof, as required by the Project Manager.
14.2 The quality system documents and quality plans forming part of the documented quality system shall
embrace all activities of Service Provider and all Sub‐Service Providers of any tier.
14.3 The Service Provider shall plan, perform and record all quality control activities to ensure that all work is
performed in accordance with the requirements of this Contract and of the quality system documents and
quality plans.
14.4 The Service Provider shall prepare and submit to the Project Manager for his consent, within twenty‐eight
(28) days of the date of this Contract, a quality plan, in the form and with the details and contents as
specified by the Project Manager and otherwise in accordance with this Contract, which Service Provider
proposes to adopt in the execution of the Works.
14.5 Without prejudice to Clause 17, HKCMCL reserves the right to inspect and carry out, and to authorise third
parties to inspect and carry out on its behalf, any necessary investigations, tests and measurements on
the Equipment, Software and Works at any stage in the manufacture of the Equipment and Software and
/ or the execution of the Works and to reject all or any part of the Equipment, Software and Works not in
accordance with the Specifications.
14.6 For the purposes of inspection Service Provider shall accord to HKCMCL, and any third party authorised
by HKCMCL, right of access to all parts of Service Provider’s premises concerned with the manufacture of
the Equipment and Software and shall provide HKCMCL and such third party with such inspection facilities,
testing apparatus and services as may reasonably be required.
14.7 Without prejudice to Clause 14.6, the Service Provider shall, and shall procure that, before any Equipment
is shipped, a complete functional Factory Acceptance Test Procedure, designed to demonstrate that the
Equipment will meet the Specification, shall be carried out at Service Provider’s cost.
14.8 The Service Provider shall if requested by HKCMCL, not less than twenty‐one (21) days before any such
Factory Acceptance Test Procedures are due to commence, submit for the approval of HKCMCL the
relevant Factory Acceptance Test Procedure defining the tests to be conducted.
14.9 HKCMCL reserves the right for himself, and/or his nominee, to be present at and participate in any tests
carried out on all or any part of the Equipment and Service Provider shall confirm to HKCMCL by giving
fourteen (14) days’ notice in writing of the commencement of such tests so that HKCMCL can either make
the necessary arrangements for his representative or nominee to be present, or HKCMCL advise Service
Provider that his representative or nominee will not attend.
14.10 Service Provider shall have completed preliminary tests prior to the arrival of HKCMCL’s representative or
nominee.
14.11 On the successful conclusion of the Factory Acceptance Test Procedure to the satisfaction of HKCMCL, and
before shipment from the factory, a Factory Test Completion Certificate containing 2 copies of the test
results shall be signed by both parties. If pursuant to Clause 14.9, HKCMCL advises that his
representative or nominee will not attend, Service Provider shall endorse the Factory Test Completion
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Certificate accordingly and shall deliver the same to the HKCMCL forthwith.
14.12 Should HKCMCL’s representative or nominee attend at the appointed time for inspection or testing, and
the inspection or tests be delayed through reasons within Service Provider’s control, or should the
Equipment not reach the required objective of the tests, then the additional costs incurred by HKCMCL by
reason of the delay or of subsequent further visits to attend the deferred or repeated inspection or tests
shall be chargeable to Service Provider.
14.13 Without prejudice to Clause 14.6, Service Provider shall provide, and shall procure the provision of,
monthly progress reports in respect of the development of any Specially Written Software, beginning on
the date thirty (30) days after the Effective Date. The monthly progress reports shall contain such details
in relation to the design and development of the Software as are notified by HKCMCL to Service Provider
from time to time.
14.14 The Service Provider shall procure that HKCMCL and any third party authorised by HKCMCL shall have the
same inspection rights in respect of any Sub‐Service Providers as HKCMCL has in respect of the Service
Provider.
15 Co‐ordination
15.1 The Service Provider shall be responsible for co‐ordinating the design and execution of the Works with
the design and construction works and other activities undertaken by all Direct Service Providers, Utility
Undertakers and Relevant Authorities. Without prejudice to the foregoing, Service Provider shall consult,
liaise and co‐operate with all Direct Service Providers, Utility Undertakers and Relevant Authorities to
ensure that the design of the Works is consistent, compatible, integrated and co‐ordinated with the design
of the works being undertaken by all Direct Service Providers, Utility Undertakers and Relevant Authorities,
and that in the execution of the Works, Service Provider co‐ordinates its activities with the activities of
Direct Service Providers, Utility Undertakers and Relevant Authorities.
15.2 Without prejudice to Clause 15.1, when the System or any part thereof is Ready for Service, Service
Provider shall:
15.2.1 notify the HKCMCL forthwith;
15.2.2 hand over possession of the System or such part thereof that is Ready For Service to HKCMCL; and
15.2.3 co‐ordinate and co‐operate with, enable and facilitate the operation of the System or such part thereof by HKCMCL or its nominee.
16 Inspection and Monitoring
16.1 The Service Provider shall provide and, where relevant, shall procure access to and reasonable facilities at
all places on or off the Site where the Works, or any part thereof, are being executed, to enable the Project
Manager and others authorised by him to watch, monitor and inspect the same and to exercise and
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perform the powers and duties of the Project Manager, including, without limitation, checking or
enforcing the performance by Service Provider of any of its obligations under this Contract, and
performing such other functions deemed appropriate by the Project Manager.
17 Acceptance Testing
17.1 Any amendments to the Acceptance Test Plan or the Acceptance Tests from time to time, shall be subject
to the approval of HKCMCL, taking account of the Specifications and any Changes thereto. HKCMCL and
Service Provider shall together perform testing of the System or any part thereof that is Ready for Service
in accordance with the Acceptance Test Plan, including conducting the Acceptance Tests on the applicable
Acceptance Test Date specified therein all at Service Provider’s cost.
17.2 The Acceptance Tests shall only be recorded as successfully completed where the System or any part
thereof, has met all the requisite criteria in the Specifications and the Acceptance Tests. The successful
completion of any Acceptance Test and issue of the relevant Acceptance Certificate shall not relieve
Service Provider of its obligation to remedy any problems identified in any other Acceptance Test even
when this requires remedial acts in respect of Equipment, Software and/or Works which have previously
successfully passed an Acceptance Test.
17.3 Subject to Clause 13 and at all times without prejudice to the rights of HKCMCL under Clause 25 and
Clause 27.3.4 if any Acceptance Test in respect of the System, or any part thereof, has not been recorded
as successful pursuant to Clause 17.2 by the relevant Acceptance Test Date specified in the Acceptance
Test Plan for the successful completion of Acceptance Tests:
17.3.1 such Acceptance Test Date may be extended for a fair and reasonable period specified by HKCMCL in consultation with Service Provider during which Service Provider shall continue to investigate the reasons for and correct the faults which caused the Acceptance Test to be recorded as unsuccessful and the Acceptance Test (including not only the failed Acceptance Test but any other Acceptance Test where the results might be affected) shall be re‐performed. All costs which HKCMCL may incur as a result of the carrying out of such tests shall be reimbursed by Service Provider failing which HKCMCL shall be entitled to make the appropriate deductions in accordance with Clause 18.2; and
17.3.2 if the System or any part thereof shall fail such further Acceptance Test as set out in Clause 17.3.1 then HKCMCL shall be entitled at its sole option:
(a) to require the steps in Clause 17.3.1 to be repeated, subject to HKCMCL consulting with Service Provider regarding the viability of re‐performing the Acceptance Test and taking into account the extent of the further work required by Service Provider before it could re‐perform the Acceptance Test and the likelihood of any delay; or
(b) to require Service Provider to replace any Equipment or Software which has failed the Acceptance Test with new Equipment or Software; or
(c) to terminate this Contract; or
(d) to proceed under Clause 17.3.3 below; or
17.3.3 accept the System, or any part of it, in its existing state at the stage reached in the Acceptance Test whereupon the Acceptance Test shall be deemed to be successfully completed, subject
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to agreement between the parties within fourteen (14) days as to:
(a) a reduction in the Contract Sum (such reduction to be such amount as, taking into account the circumstances, is reasonable); and
(b) agreement of any other reasonable Changes.
17.4 Upon the successful completion of the relevant Acceptance Test specified in the Acceptance Test Plan,
HKCMCL shall issue the Acceptance Certificate in relation to that Acceptance Test. Notwithstanding any
provision herein, use of the System or any part thereof by HKCMCL, its agents, licensees or any third party
authorised by it shall not be deemed to constitute Acceptance.
17.5 Upon the issue of the Acceptance Certificate, Service Provider shall be liable to rectify defects in the
System and remedy all breaches of warranties given herein for a period of 12 months or such longer period
as HKCMCL deems appropriate from the date of issue of the Acceptance Certificate. In respect of any
Equipment or Software which is corrected, repaired or replaced pursuant to this Clause 17.5, the liability
to rectify defects shall begin anew upon HKCMCL’s Acceptance of the correction, repair or replacement.
17.6 In respect of the System or any part thereof which is Ready for Service and / or Accepted, and which is in
use or operated by HKCMCL or its nominee, Service Provider shall in accordance with the Acceptance Test
Plan carry out any Acceptance Tests in a manner designed to minimise any interference to the use and
operation of the System or any part thereof by HKCMCL or its nominee, including that part of the System
upon which the Acceptance Tests are performed.
18 Contract Price and Payment
18.1 HKCMCL shall pay Service Provider the Contract Sum in accordance with this Clause. All unit prices and
fees in respect of any Equipment, Software or Works shall be as specified in the Specification, from which
the relevant Contract Sum may be calculated. All prices and fees in respect of any Equipment, Software
or Works not otherwise indicated in the Specification shall be notified by Service Provider to HKCMCL
from time to time with all details reasonably necessary for HKCMCL to assess the relevant Contract Sum,
including currency, applicability periods and any discounts. All payments under this Contract shall be made,
in the following currency: Hong Kong Dollars.
18.2 Payments for the Contract Sum will be settled in the manner described in Schedule A of these Conditions
of Contract. Payments will be paid upon the Service Provider's presentation to HKCMCL of invoices and
on the basis that the Works are provided as contemplated under this Contract.
18.3 The Contract Sum shall cover all the costs and expenses for the performance of the Works including but
not limited to the development and execution of the Works whether they are directly or indirectly
incurred by the Service Provider.
18.4 If, for any reason, any job undertaken by the Service Provider pursuant to this Contract is cancelled or
delayed, HKCMCL and the Service Provider shall discuss in good faith the most commercially beneficial
and cost effective resolution of the matter. In any circumstances, HKCMCL's final decision on the matter
shall be regarded as conclusive.
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18.5 Each payment required pursuant to the Contract shall be made within 30 days of presentation of invoice.
19 Maintenance and Replacement
19.1 The Service Provider shall diligently operate and maintain or procure the operation and maintenance of
the Equipment and Software and all working spaces allocated to it in a safe efficient and business‐like
manner and in accordance with best industry practice.
19.2 If any Equipment or Software is damaged, lost or otherwise rendered unserviceable whilst on Site prior
to its Acceptance, Service Provider shall at its sole cost forthwith arrange for its replacement and delivery
to the Site in order to achieve the relevant Key Date.
19.3 If requested by HKCMCL, Service Provider shall provide maintenance services in respect of the System on
terms to be agreed between the parties.
20 Improvement and Upgrades
20.1 Subject the provisions of this Clause, Upgrades to any part of the Equipment or Software (other than the
Specially Written Software), shall be implemented as Changes under Clause 12.
20.2 The Service Provider shall provide Upgrades to Service Provider’s Software as a Change during the Term,
provided such Upgrades shall be made available to HKCMCL at no extra charge and without any
adjustment to the relevant Contract Sum.
21 Maintenance and Supply of Records and Operating Manuals
21.1 The Service Provider shall maintain copies of all documents in connection with and arising out of this
Contract and a complete record of all transactions entered into by Service Provider and any third party in
connection with the execution of the Project. Such documents shall be maintained by Service Provider
throughout the Term.
21.2 Without prejudice to Clause 21.1 Service Provider shall supply to the Project Manager within three (3)
days of receipt of any request to supply, copies of any plans, drawings, documents or information
reasonably required by HKCMCL in connection with this Contract including, without limitation, in respect
of any claim for an adjustment in the Contract Sum arising out of any Change and copies of any Sub‐
contracts and any additions or modifications thereto.
21.3 The Service Provider shall develop and/or obtain in respect of the System and each item of Equipment
and Software an Operating Manual which will enable HKCMCL or a third party to operate, maintain and
repair the System and each item of Equipment and Software.
22 Training
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22.1 The Service Provider shall provide sufficient training, training materials and support to HKCMCL to enable
HKCMCL and any nominee to use the System, and shall train HKCMCL's and its nominee’s training
instructors at no additional charge to HKCMCL, in accordance with the requirements set out in the
Specification.
22.2 All training and support shall be bi‐lingual in English and Chinese language, and all training materials shall
be in both English and Chinese language versions, at no additional charge to HKCMCL.
22.3 In addition to the specific training programs otherwise provided for herein, HKCMCL shall have the right
to post its personnel and its designated representatives to all offices of Service Provider in order to
observe and make inquiries concerning the Project, and such persons may attend all scheduled meetings
relating to performance of the Project and may be invited, in the discretion of Service Provider, to all other
meetings of Service Provider's personnel. Service Provider shall provide reasonable office space (including
desks and chairs) for this purpose at such offices. Such representative shall conduct themselves in a
manner which does not interfere with or delay the performance of the Project.
23 Taxes
23.1 The Service Provider shall operate as a single legal entity in accordance with applicable laws in Hong Kong
and generally acceptable accounting principles in Hong Kong, and Service Provider shall therefore account
for its own Tax liabilities. Subject to the provisions of this Contract, any Tax incurred by Service Provider
(including, without limitation, profits Tax) shall be paid by Service Provider when due from its own
resources.
23.2 Subject to the provisions of this Contract, HKCMCL shall be responsible for payment of its own Taxes,
including all profits Tax, if any, in relation to the contractual and any other payments that it receives under
this Contract.
23.3 The Service Provider shall be responsible for and shall pay all fees duties taxes or charges in relation to
any export or import licence for the exportation or importation of any Equipment and Software.
24 Guarantee
24.1 Not used.
25 Liquidated Damages
25.1 Subject to any relevant extensions of time, Service Provider shall ensure that all Key Milestones (as defined
in Schedule A) are completed on or before the relevant Key Dates (as defined in Schedule A) in accordance
with the terms of this Contract.
25.2 Subject to any relevant extensions of time, if Service Provider shall fail to complete any Key Milestone on
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or before the relevant Key Date then Service Provider shall pay to HKCMCL as and by way of liquidated
damages for any loss or damages sustained by HKCMCL resulting from delay during the period from the
Key Date to the date on which Service Provider completes the Key Milestone the relevant sums using the
rates specified in respect of each Key Milestone. HKCMCL may deduct such sum or sums from any
monies due, or to become due, to Service Provider under this Contract. Provided that if any part of the
relevant Key Milestone shall be completed pursuant to Clause 17, the rate or rates stated in the said
Schedule in respect of the whole of the Works comprised in such Key Milestone shall be reduced by the
proportion which the value of such part completed bears to the value of the whole of the Works
comprised in such Key Milestone. Subject to the provisions of Clause 25.5 below, the payment of such
sums shall be in full satisfaction of Service Provider’s liability for such delay.
25.3 The payment of liquidated damages shall not relieve Service Provider from its obligation to complete the
Key Milestone or from any other liability or obligations under this Contract.
25.4 If subsequent to the relevant Key Date for any Key Milestone, the progress of the Works comprised in such
Key Milestone is further delayed by the occurrence of any of the causes set out in Clause 13.3, but to the
extent only that the delays due to the causes set out in Clause 13.3.1, 13.3.2, or 13.3.6 arise as a result of
the act, omission or neglect of HKCMCL, his servant or agents, Service Provider shall not be entitled to
any extension of time for completion of Works, but, subject to compliance by Service Provider with Clause
13.2, HKCMCL shall so soon as he is reasonably able to estimate the length of that part of the overall delay
to completion of the Works due to the occurrence of the said cause, certify the length of the said part of
delay. Upon the issue of the said certificate, Service Provider shall be relieved of the obligation to pay
or allow liquidated damages in relation to the said part of delay so certified. HKCMCL shall repay to
Service Provider any liquidated damages already paid or allowed in respect of the said part of delay. For
the avoidance of doubt and subject to the foregoing, no cause of delay arising after the Key Date for any
Key Milestone (as extended or adjusted as aforesaid) thereof shall entitle Service Provider to any
extension of time, set time at large or (save as set out in this sub‐clause) prejudice or invalidate HKCMCL's
right to the payment or deduction of liquidated damages.
25.5 If the Service Provider shall fail to complete any Key Milestone by the relevant Key Date then
notwithstanding anything else contained in this Contract HKCMCL shall be entitled to terminate this
Contract in accordance with Clause 27.3 and to recover from the Service Provider the amount of all
damages and loss suffered by HKCMCL resulting from such failure.
26 Confidentiality
26.1 Each party shall ensure that:
26.1.1 any person employed or engaged by it shall use Confidential Information only for the purposes of this Contract;
26.1.2 any person employed or engaged by it shall not disclose any Confidential Information to any third party without the prior written consent of the other party;
26.1.3 all reasonable precautions are taken to ensure that all Confidential Information is treated as confidential and not disclosed (save as expressly permitted above) or used other than strictly for the purposes of this Contract by its employees or Sub Service Providers; and
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26.1.4 neither party nor any person engaged by them shall use Confidential Information for the solicitation of business from the other.
26.2 The provisions of Clause 26.1 shall not apply to any information which:
26.2.1 is or becomes public knowledge other than by breach of this Clause;
26.2.2 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
26.2.3 is required to be disclosed by any law (including any order of a court of competent jurisdiction) or the rules of any stock exchange or governmental or other regulatory authority, whether or not having the force of law, provided that such disclosing party shall give as much advance notice as possible of its intention so to disclose to the other party to this Contract so that the other party may seek an appropriate protective order or waiver of compliance with the requirement to disclose;
26.2.4 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
26.2.5 is independently developed without access to the Confidential Information; or
26.2.6 is reasonably required by HKCMCL or the Lenders from HKCMCL in connection with the Cyberport Project, provided that HKCMCL shall have notified HKCMCL or the Lenders the same is confidential.
26.3 Nothing in this Clause shall be deemed or construed to prevent either party from disclosing any
Confidential Information to Sub‐Service Providers or other person it engages for the Cyberport Project
provided that the party disclosing the Confidential Information shall have notified the Sub‐ Service
Provider or other person that the same is confidential and shall have obtained an undertaking in respect
of the confidential information substantially on the same terms as those contained in this Clause 26.
26.4 The Service Provider shall not disclose any term of this Contract.
26.5 The parties acknowledge that, since damages or an account of profits will not be an adequate remedy for
a breach of this Clause, a party is entitled to an injunction to prevent a breach or a continued breach.
26.6 The provisions of this Clause shall survive the expiration or termination of this Contract.
27 Term and Termination
27.1 Not used.
27.2 HKCMCL may terminate this Contract:
27.2.1 by giving at least 3 months written notice to Service Provider;
27.2.2 by exercising its rights under Clause 38.6.
27.3 HKCMCL may terminate this Contract in its entirety or any part thereof on written notice with effect from
the date specified in the notice if:
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27.3.1 the Service Provider commits any material breach of any provision of this Contract, or any part thereof as the case may be, which in the case of a breach capable of remedy has not been remedied within seven (7) days of service upon Service Provider of a notice specifying the breach and requiring it to be remedied;
27.3.2 any Detailed Design fails to meet the requirements of the Specification under Clause 6.5.1 or if the parties fail to reach agreement thereto under Clause 6.5.2 (a);
27.3.3 in the event that Service Provider fails to complete any Key Milestone by the relevant Key Date under this Contract;
27.3.4 the Service Provider shall fail to complete any or all Acceptance Tests required to be performed under this Contract by the relevant Key Date;
27.3.5 in the event that the aggregate of all liquidated damages payable or allowable by Service Provider pursuant to Clause 25 exceeds ten per cent (10%) of the Fixed Sum for any Phase;
27.3.6 there is a change in the Control of Service Provider after the Effective Date without the prior written consent of HKCMCL;
27.3.7 the Service Provider or an Affiliate of Service Provider has a receiver or administrative receiver appointed, or passes a resolution for winding‐up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect:
27.3.8 the Service Provider or an Affiliate of Service Provider becomes subject to an administration order, enters into any voluntary arrangement with its creditors, or ceases (or threatens to cease) to carry on business;
27.3.9 the Service Provider or an Affiliate of Service Provider is presented in a petition for bankruptcy or has a meeting convened to consider a resolution for the making of an administrative order against it, or its winding up, bankruptcy or dissolution;
27.3.10 any non‐conforming Equipment, Software or Works has not been corrected, or if two (2) or more such non‐conformities occur within any 30 day period, as described in Clause 29.7;
27.3.11 the Service Provider refuses or neglects to comply with a written notice from HKCMCL requiring Service Provider to remove non‐conforming Equipment, Software or Works;
27.3.12 the events described in Clause 42.2 occur;
27.3.13 the right to terminate by HKCMCL or any of its Affiliates arises under any other agreement entered into by HKCMCL or its Affiliates with Service Provider or its Affiliates; or
27.3.14 any licences, permits or authorisations required by Service Provider to carry out the Project under this Contract are suspended, revoked, cancelled or otherwise terminated.
27.4 In addition to its right to terminate this Contract under Clause 3, HKCMCL may, if any of the circumstances
referred to in Clause 3 have occurred, take any one or more of the following steps:
27.4.1 suspend payment to Service Provider of any or all payment due under this Contract;
27.4.2 without terminating this Contract itself provide or procure the carrying out of all or any part of the Project until such time as the Service Provider has reasonably demonstrated that Service Provider will once more be able to perform that part of the Project according to this Contract, including the Specifications and the Project Plan. In these circumstances, HKCMCL is entitled to deduct from the Contract Sum any cost reasonably incurred by HKCMCL in providing or procuring the carrying out of that part of the Project;
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27.4.3 without terminating the whole of this Contract, terminate any part of this Contract in respect of which Service Provider has committed a breach;
27.5 If HKCMCL enforces any of its rights under Clause 27.4.2 or 27.4.3 the provisions of Clause 27.7 shall apply
in relation to the part of the Project affected.
27.6 The rights of HKCMCL under Clause 27.3 and 27.4 may be exercised successively in respect of any one or
more failures by Service Provider and are in addition and without prejudice to any other right HKCMCL
may have against Service Provider.
27.7 This Contract may be terminated by Service Provider immediately on giving notice in writing to HKCMCL
if:
27.7.1 HKCMCL has a receiver or administrative receiver appointed, or passes a resolution for winding‐up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
27.7.2 HKCMCL becomes subject to an administration order, enters into any voluntary arrangement with its creditors, or ceases (or threatens to cease) to carry on business;
27.7.3 HKCMCL is presented with a petition for bankruptcy or has a meeting convened to consider a resolution for the making of an administrative order against it, or its winding up, bankruptcy or dissolution; or
27.7.4 HKCMCL commits any material breach of any provision of this Contract which in the case of a breach capable of remedy has not been remedied within seven (7) days of service upon HKCMCL of a notice specifying the breach and requiring it to be remedied.
27.8 Any termination of this Contract (howsoever occasioned) shall not affect any accrued rights or liabilities
of either party nor shall it affect the coming into force or the continuance in force of any provision hereof
which is expressly or by implication intended to come into or continue in force on or after such termination
including any warranties given by Service Provider under Clause 29.
28 Consequences of Termination
28.1 Within fourteen (14) days of receipt of notice of termination or by six months before expiry of the Term,
Service Provider shall prepare and provide to HKCMCL a detailed inventory and up‐to‐date report of the
stage reached in the Project and copies of any relevant Sub‐Service Providers and licence terms to assist
HKCMCL in the smooth handover of the Project to new turnkey equipment supplier and the continued
implementation of the Project by the new turnkey equipment supplier.
28.2 On any termination of this Contract under Clause 27.3, HKCMCL shall be entitled (but without prejudice
to any other claims either party may have):
28.2.1 to recover from Service Provider the amount of any direct loss or damage sustained or incurred by HKCMCL as a consequence of such termination; and
28.2.2 to take and use without restriction the System and the Project Intellectual Property, or any part thereof, in its then state of development including:
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28.2.3 all Detailed Designs, all Operating Manuals, Specially Written Software and Source Code to the Specially Written Software, the latest version of the working drafts of, or significant final papers for, any Project Intellectual Property which has not been delivered to HKCMCL in accordance with Clauses 4 or 7 and other documents and materials relating to the Project in existence at the date of termination (whether or not they are complete) on all media in which those documents and materials are held in Service Provider’s or any Sub‐Service Provider’s possession or control;
28.2.4 any Equipment and pre‐existing Software required by HKCMCL,
28.2.5 subject to payment by HKCMCL in respect of the Equipment and pre‐existing Software concerned and / or payment to reflect the value of the work carried out by Service Provider less any claims HKCMCL may have against Service Provider.
28.3 On any termination of this Contract under Clause 27.2 and Clause 27.6, without prejudice to any other
claims either party may have:
28.3.1 HKCMCL shall pay Service Provider for all the Equipment and Software and Project Intellectual Property which have been delivered to HKCMCL in accordance with Clauses 4 and 7;
28.3.2 HKCMCL shall pay Service Provider for all other Equipment and Software that are procured from any third party by Service Provider pursuant to this Contract, and for which Service Provider is legally obliged to pay for, prior to the date notice is given in accordance with Clauses 27.2 and 27.6; and
28.3.3 HKCMCL shall be entitled to take and use without restriction the System and the Project Intellectual Property, or any part thereof, in its then state of development including:
(a) all Detailed Design, all Operating Manuals, Specially Written Software and Source Code to the Specially Written Software, the latest version of the working drafts of, or significant final papers for, any Project Intellectual Property which has not been delivered to HKCMCL in accordance with Clauses 4 or 7 and other documents and materials relating to the Project in existence at the date of termination (whether or not they are complete) on all media in which those documents and materials are held in Service Provider’s or any Sub‐Service Providers possession or control;
(b) any Equipment and pre‐existing Software required by HKCMCL,
(c) subject to payment by HKCMCL in respect of the Equipment and pre‐existing Software concerned and payment to reflect the value of the work carried out by Service Provider less any claims HKCMCL may have against Service Provider.
28.3.4 If on any termination of this Contract HKCMCL appoints a new Service Provider to replace Service Provider performing all or any part of the Project or HKCMCL itself performs all or any part of the Project, Service Provider agrees to use its best endeavours:
(a) to assist and co‐operate in the handover and its dealings with HKCMCL and such third party to minimise disruption to HKCMCL; and
(b) to ensure, subject to payment under Clauses 28.2 or 28.3, that all licences of the Software and the Equipment granted to HKCMCL continue. In particular, Service Provider shall provide, at standard rates, up to two (2) months of technical advice which could include or take the form of training for HKCMCL and/or the new Service Provider’s personnel, consultants and sub‐Service Providers.
28.4 On any termination of this Contract or on the exercise of HKCMCL’s rights under Clause 27.4, HKCMCL
shall be entitled to order Service Provider, its employees and Sub‐Service Providers to vacate the Site
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within seven (7) days of the relevant notice of termination or notice to Service Provider that HKCMCL has
elected to exercise its rights under Clause 27.4.
29 Undertakings, Warranties and Representations
29.1 The Service Provider represents, warrants and undertakes to HKCMCL that:
29.1.1 the Service Provider has title, free of all liens and encumbrances, to all Equipment and Software that is supplied under this Contract. For Third Party Software, Service Provider represents and warrants that it has the right to grant to HKCMCL the licences granted hereunder;
29.1.2 all Equipment and Software shall conform to all Specifications, statements of work and other requirements set forth in this Contract, shall be free from material defects in materials and workmanship, and shall be free from material defects in design. In respect of any Equipment and Software such warranty period shall be twelve (12) months from the relevant Acceptance Date. Without limiting the warranties contained elsewhere herein, Service Provider warrants that (i) only good quality materials, parts and equipment and good and careful workmanship have been used in connection with the manufacture and installation of the Equipment; (ii) the Equipment and Software are such that when Accepted the System shall be capable of operating in accordance with the Specifications and shall successfully interface and interconnect with all existing and future installations including other Equipment and Software; (iii) the Equipment and Software shall operate without risk or danger to the general public or persons operating the Equipment; and (iv) the Equipment shall not create pollution nor produce hazardous fumes;
29.1.3 if the Service Provider is not the manufacturer or licensor of the Equipment and/or Software, Service Provider shall obtain the same warranty as specified herein from the manufacturer or licensor and the complete warranty shall pass to HKCMCL. Service Provider shall assist and co‐operate with HKCMCL in making claims under such warranty;
29.1.4 the supply of spare or replacement parts and materials for the System shall be available until the tenth anniversary of the date of issue of the Completion Certificate;
29.1.5 the Service Provider shall perform the Works with promptness, efficiency and diligence and hereby warrants that the Works shall be performed in accordance with the highest standards in the field to the reasonable satisfaction of HKCMCL;
29.1.6 the Works shall be free from defects and deficiencies in performance or material, shall conform strictly to the Specifications and the requirements set forth in this Contract, shall meet all safety and operating criteria as specified herein, and shall be fit and sufficient for the purposes expressed in, or reasonably to be inferred from this Contract, for a period of twelve (12) months from the relevant Acceptance Date of the System or any part thereof to which such Works relate;
29.1.7 the warranties herein shall not be affected by removal and relocation of Equipment, or the removal and relocation of Software;
29.1.8 all work performed by Service Provider and its Sub‐Service Providers not otherwise mentioned in this Clause, shall be adequate and sufficient for the purposes intended, in conformity with the terms of this Contract and free of defects and deficiencies.
29.1.9 the Service Provider's obligation to design and engineer in accordance with the Specifications and its warranties set forth herein shall not be reduced or affected by HKCMCL's approval of any designs, drawings or specifications;
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29.1.10 the Detailed Design shall be prepared with due care and attention and all information contained in it is true, accurate and complete;
29.1.11 all information, representations and statements communicated (whether in writing or otherwise) to HKCMCL by Service Provider or its Sub‐Service Providers in connection with or arising out of the Detailed Design are true, complete and accurate in all respects;
29.1.12 upon the issue of the Completion Certificate, all necessary equipment, software and procedures for the management and operation of the System and all user interfaces will be in place for the implementation by the relevant systems integrator appointed by HKCMCL of the overall integration of all other systems within the Cyberport Project;
29.1.13 it is of sound financial standing and Service Provider is not aware of any circumstances (other than any circumstances that may be disclosed in the auditors' report on the accounts or other financial statements of Service Provider) which may adversely affect that financial standing in the future;
29.1.14 the Service Provider shall perform its obligations under this Contract in compliance with all laws (including laws relating to telecommunications, health, safety and the environment) and obtain and maintain all consents and licences required by law for the carrying out of the Works in completing the Project in accordance with this Contract including any import or export licences and all telecommunications licences;
29.1.15 it has full power and authority to enter into this Contract and to carry out the Project;
29.1.16 it is not aware as at the date of the Contract of any matters which might or will adversely affect its ability to perform its obligations under this Contract;
29.1.17 all Equipment or Software delivered shall have successfully passed the Factory Acceptance Test Procedures;
29.1.18 all Equipment, Software and the System shall be used and maintained in accordance with the relevant manufacturer's or supplier's technical specifications and the relevant Operating Manuals;
29.1.19 the Operating Manuals shall provide complete and accurate instructions for the operation, maintenance and repair of the System, Equipment and Software;
29.1.20 it shall procure that its Sub‐Service Providers are bound by the obligations of Service Provider under this Contract in connection with the execution of the Project; and
29.1.21 it is an experienced supplier of turnkey projects of the nature of those to be provided under this Contract.
29.2 Without prejudice to any other rights HKCMCL may have under this Contract, including under Clauses 17,
27.3 and 27.4, HKCMCL shall be entitled to give notice of any Equipment, Software or Works that do not
conform to the requirements of the Specifications and this Contract and require the Service Provider to
implement a plan for repair and replacement. Thereafter, Service Provider shall, no later than three (3)
days after such notice has been given, propose a plan for repairs and replacement for HKCMCL's approval,
including the time period within which such repairs and replacement must be completed. If Service
Provider does not begin its plan for repairs and replacements within the time mutually agreed or if Service
Provider and HKCMCL fail to reach agreement on such a plan within seven (7) days of the receipt by Service
Provider of HKCMCL's notice of such breach, HKCMCL, after advising Service Provider in writing, shall be
entitled at its option and at Service Provider's expense to perform or have third parties perform such work
as is necessary to remedy or cause to be remedied such breach or to pursue such other remedies as may
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be available to it under this Contract or by law.
29.3 The rights and remedies of HKCMCL under this Clause shall be without prejudice to any other rights
HKCMCL may have under this Contract. The rights and remedies of HKCMCL provided by this Clause are
in addition to any other rights and remedies provided by law or in equity or otherwise.
29.4 Warranties shall survive inspection, Acceptance and payment and shall run to HKCMCL, its agents,
successor, assigns and customers.
29.5 The Service Provider shall, at no expense to HKCMCL, promptly correct any failure to fulfil the above
warranties which may appear at any time during the warranty period. HKCMCL shall notify Service
Provider of such failure during the warranty period. Service Provider shall promptly remedy such non‐
conformities at no additional charge.
29.6 The implementation of any plan for repairs and replacements of non‐conforming Equipment, Software or
Works pursuant to Clause 29.2 shall be either corrected on‐site or returned to Service Provider for
correction, at Service Provider's expense and at HKCMCL's option. HKCMCL agrees to be reasonable in
requiring on‐site corrections.
29.7 If the non‐conformity has not been corrected pursuant to the agreed plan for repairs and replacements
within seven (7) days from Service Provider's receipt of returned Equipment or Software, or within the
time agreed upon for on‐site corrections, or if two (2) or more such non‐conformities occur within any
thirty (30) day period, then HKCMCL may, proceed in accordance with Clauses 27.3 or 27.4. If HKCMCL
so proceeds, Service Provider shall promptly remove such Equipment, Software or Works at its own cost,
or if removed by HKCMCL, the cost of such removal shall be payable by Service Provider or deducted from
any payments due to Service Provider from HKCMCL under this Contract. Service Provider shall restore or
bear the expenses of restoration of HKCMCL's property to its original condition at the direction of HKCMCL
and refund to HKCMCL all moneys previously paid for such Equipment, Software or Works.
29.8 The warranties expressed above are not sole and exclusive, but are in addition to any other expressed or
implied warranties. Any other rights provided in this Contract or by law are reserved.
29.9 The Service Provider shall not be liable under warranty for any damages or defects caused by the
negligence of HKCMCL or any third party. Service Provider's liability shall be proportionately reduced to
the extent HKCMCL or any third party contributed to such liability.
30 Service Provider Expertise and Resource
30.1 The Service Provider shall take all steps necessary to put itself in a position to be able fully and properly
to perform its obligations in accordance with the Contract.
30.2 The Service Provider confirms that it has all information, rights, materials and resources necessary to
enable it to provide the Works.
30.3 Except as otherwise specified in the Contract, the Service Provider shall determine and shall be
responsible for providing all management, staff, facilities and other materials and resources necessary to
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provide the Works.
30.4 The Service Provider acknowledges and confirms that:
30.4.1 it has carried out all necessary reviews, analysis and investigations to satisfy itself of the nature of:
(a) the current relevant technical environment of the System and other systems within Cyberport, and the necessary interfacing requirements of the System with other systems within Cyberport; and
(b) any other matters relevant to the compliance with its obligations in accordance with the Contract;
30.5 The Service Provider shall not be entitled to make any claim against HKCMCL whether in tort, contract or
otherwise on the grounds of its assessment, misunderstanding or misapprehension of the System and the
Works or on the grounds that incorrect or insufficient information was given to it by any person, whether
or not employed by HKCMCL.
31 Limitation of Liability and Indemnity
31.1 The Service Provider shall indemnify, defend and hold harmless HKCMCL and its Affiliates against any and
all demands, claims, damages, judgments, costs (including reasonable legal fees), penalties and liabilities
based upon, inconsistent with, relating to, or arising out of breach or failure of any of the agreements,
obligations, representations, warranties or undertakings of Service Provider hereunder. All rights and
remedies hereunder shall be cumulative and shall not interfere with or prevent the exercise of any other
right or remedy which may be available to HKCMCL. Upon notice from HKCMCL of any such claim,
demand or action being advanced or commenced, Service Provider agrees to adjust, settle or defend the
same at the sole cost of Service Provider.
31.2 The Service Provider shall indemnify, defend and hold harmless HKCMCL and its Affiliates against any and
all demands, claims, damages, judgments, costs (including reasonable legal fees), penalties and liabilities
based upon, inconsistent with, relating to, or arising out of or in connection with any act or default in the
carrying out of the Project by any of Service Provider’s Sub‐Service Providers, or their officers, employees,
agents or sub‐Service Providers of any tier.
31.3 Notwithstanding any other provisions of this Contract, neither party excludes or limits liability to the other
party for:
31.3.1 death or personal injury;
31.3.2 any other liability the exclusion of which is expressly prohibited by law.
31.4 Except as expressly provided in this Contract, HKCMCL shall not be liable to Service Provider, however
arising, whether by way of indemnity or by reason of any breach of this Contract or warranty or of
statutory duty or by reason of tort or the committing of any actionable wrong (including but not limited
to negligence) or undertaking of any account or otherwise for any indirect or consequential or special or
incidental damage whatsoever that may be suffered by the other including without limitation loss of profit,
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investment, revenue, return, use, operating time, contract, production, opportunity or goodwill, cost of
capital, cost of replacement power, increased cost of operation or maintenance, claims of customers or
third parties. For the avoidance of doubt, nothing in this clause shall prejudice either party's rights in
relation to or under any express indemnity contained in this Contract.
31.5 The parties expressly agree that should any provision contained in this Clause 31 be held to be invalid
under any applicable statute or rule of law it shall to that extent be deemed omitted, but if any party
thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall
be subject to the other limitations and provisions set out therein.
31.6 The parties acknowledge and agree that the allocation of risk and liability contained in this Contract is
reasonable in all the circumstances having regard to all relevant factors including the nature of the Project,
the negotiated Contract Sum and the ability of Service Provider to rely on its own insurance arrangements
to bear or recover any losses for which HKCMCL is not liable.
32 Insurance
32.1 Without limiting the obligations and responsibilities of Service Provider under Clause 31 or otherwise,
HKCMCL shall effect and maintain at its own expense for the benefit of and in the joint names of HKCMCL,
Service Provider and Sub‐Service Providers of any tier a policy of third party liability insurance and Service
Providers all risks in the terms set out in the Policy of Insurance.
32.2 HKCMCL shall not be liable for or in respect of any damage or compensation in respect of or in
consequence of any accident or injury to any workman or other person in the employment of Service
Provider or any Sub‐Service Providers of any tier, save and except to the extent that any accident or injury
results from any neglect, omission or default of HKCMCL, his agents or servants.
32.3 Without limiting its other obligations or the obligations of HKCMCL, Service Provider shall take out and
maintain on its own behalf and on behalf of its Sub‐Service Providers of any tier, insurance in respect of
claims for the death of or bodily injury to any person under a contract of service or apprenticeship with
Service Provider or any of its Sub‐Service Providers of any tier and arising out of and in the course of the
person’s employment in respect of the Project in terms and with insurers acceptable to HKCMCL and
Service Provider shall submit details thereof to HKCMCL for HKCMCL's prior written approval sufficiently
in advance of the Commencement of the Works..
32.4 Should Service Provider make default in insuring or continuing to insure as provided in this Clause 32,
HKCMCL may insure against any risk with respect to which the default shall have occurred and may deduct
a sum or sums equivalent to the amount paid or payable in respect of premiums from any monies due or
to become due to Service Provider.
32.5 In relation to all policies of insurances referred to in this Clause 32, Service Provider shall and procure that
its Sub‐Service Providers of any tier shall at all times comply with the provisions of the Policy of Insurance
and without limiting the generality of the foregoing shall and shall procure that its sub‐Service Providers
shall notify HKCMCL in writing full particulars of any circumstance or event or loss giving rise to or capable
of giving rise to a claim under the Policy of Insurance promptly upon becoming aware of the same.
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32.6 Any policy taken out by Service Provider pursuant to this Clause 32 shall extend for a period or periods
and be otherwise on terms sufficient to cover risks arising in the performance of the Project and the Works
required up to and including the time of issue of the Completion Certificate and beyond, to the extent
that Service Provider is obliged to remedy any defects past that date.
32.7 Without limiting its obligations and responsibilities under the Contract Service Provider shall:
32.7.1 insure at its own expense and for the full replacement value the Equipment, Software and other plant and equipment brought onto the Site for the purpose of the Project and the Works;
32.7.2 insure and keep insured at its own expense and shall cause any Sub‐Service Provider of any tier to so insure all marine vessels used in connection with the Works or the Contract for protection and indemnity liabilities including personal injury, loss of life, removal of wreck, collision, oil pollution and damage to fixed and floating objects;
32.7.3 comply and cause any Sub‐Service Provider of any tier to comply with the provisions of the Hong Kong Merchant Shipping (Compulsory Third Party Risk Insurance) Regulations and the Merchant Shipping (Pleasure Vessels) Regulations; and
32.7.4 effect and maintain professional indemnity insurance for a limit of indemnity of not less than HK$50,000,000 for each occurrence or series of occurrences arising out of one event, and with deductibles and excesses not exceeding 10% of the said cover from the Effective Date until 12 years after the date of the issue of the Completion Certificate.
32.8 Upon the occurrence of any event giving rise to a claim under any insurance maintained pursuant to
Clause 32.1 in respect of Service Providers all risks, Service Provider shall, without any delay on its part,
restore and repair the Works, Equipment and Software, replace any other goods and materials which have
been damaged or destroyed, remove all debris from the Site, comply with any further or other
requirements set out in the Policy of Insurance, and continue with the execution and completion of the
Project and the Works and with the performance of its other obligations under this Contract. Service
Provider shall seek payment from the insurer of all monies which are payable in respect of any such claim
including any monies paid to HKCMCL to cover professional fees (or a sum equivalent thereto) in full.
Service Provider shall not be entitled to any payment from HKCMCL in respect of the matters referred to
in this Clause 32.8 except and to the extent such loss or damage shall have arisen by the neglect, default
or omission of HKCMCL and its servants or agents (but excluding, for the avoidance of doubt, Direct Service
Providers) and the Project Manager shall certify in such event the amount of HKCMCL's contribution which
shall be valued in accordance with Clause 19.
33 Safety
33.1 The Service Provider shall, throughout the carrying out of the Project, use all reasonable endeavours to
ensure that the Works are executed in a safe manner and to ensure the safety of all persons on or in the
vicinity of the Site. Service Provider shall comply with all laws and regulations relating to safety in the
carrying out of the Project.
33.2 If, in the opinion of the Project Manager, the safety procedures implemented by Service Provider is at any
time insufficient or requires revision or modification to ensure the security of the Project and the safety
of all workmen upon and visitors to the Site, or the level of accidents on any part of the Site is, in the
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opinion of the Project Manager, unacceptable, the Project Manager may instruct Service Provider to revise
the safety procedures. Service Provider shall not be entitled to receive any payment, whether by way of
damages or otherwise howsoever, any adjustment in the Contract Sum, or any extension of time for the
completion of the Project, or any part thereof, in respect of any such instruction issued by the Project
Manager.
34 Publicity
34.1 Except with the written consent of HKCMCL, Service Provider shall not make any press announcements in
relation to this Contract or advertise the Project in any way.
34.2 The Service Provider shall take all reasonable steps to ensure the observance of the provisions of Clause
34.1 by its Sub Service Providers.
34.3 HKCMCL shall be entitled to publicise this Contract.
35 Sub‐contracts
35.1 The Service Provider shall not, without the prior written consent of HKCMCL, which shall not be
unreasonably withheld, enter into any Sub‐contract with any person for the performance of any part of
this Contract.
35.2 The delegation, disposal, sub‐contracting or subrogation of any part of the obligations of Service Provider
under this Contract shall not relieve Service Provider from any of its liabilities, duties or obligations under
this Contract. Service Provider shall be and remain responsible at all times for the acts, omissions,
neglects and defaults of its Sub‐Service Providers, agents, servants or workmen as fully as if they were the
acts, omissions, neglects and defaults of Service Provider.
35.3 The Service Provider shall give HKCMCL immediate notice in writing if the Service Provider gives or
receives any notice of termination of any contract between Service Provider and any permitted Sub‐
Service Providers.
36 Assignment
36.1 This Contract is personal to Service Provider. Service Provider shall not assign, novate, sub contract or
otherwise dispose of this Contract or any part thereof without the previous consent in writing of HKCMCL
which, in relation to any sub‐contracting, shall not be unreasonably withheld by HKCMCL.
36.2 HKCMCL shall be entitled to assign, novate or otherwise dispose of all or any part of its rights and
obligations under this Contract or any part thereof provided that any assignment, novation or other
disposal shall not increase the burden of Service Provider's obligations pursuant to this Contract.
36.3 HKCMCL shall be entitled to disclose to any successor body ("the Successor") any Confidential Information
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of Service Provider which relates to the Project. In these circumstances, HKCMCL shall authorise the
Successor to use the Confidential Information only for purposes relating to the Project and for no other
purposes and the Successor shall be bound by the confidentiality undertaking contained in this Contract
in relation to Confidential Information.
36.4 This Contract is binding on HKCMCL and its successors and assignees and Service Provider and Service
Provider's successors and permitted assignees.
37 Entire Agreement and Amendments
37.1 This Contract constitutes the entire understanding between the parties relating to the subject matter of
this Contract and, except as expressly referred to or referenced in this Contract, supersedes all prior
agreements, undertakings, representations, warranties, writings, negotiations, understandings and
arrangements of any nature whatsoever, whether or not in writing, with respect to the subject matter of
this Contract, except in respect of any fraudulent misrepresentation made by either party.
37.2 This Contract shall not be varied or amended unless the variation or amendment is agreed in writing and
signed by a duly authorised representative of HKCMCL on behalf of HKCMCL and by a duly authorised
representative of Service Provider on behalf of Service Provider.
38 Force Majeure
38.1 For the purposes of this Contract, the expression "Force Majeure" shall mean:
38.1.1 an outbreak of war (whether war be declared or not) in any part of HKSAR which, whether financially or otherwise, materially affects the execution of the Project;
38.1.2 an invasion of HKSAR; or
38.1.3 any of the following events:‐
(a) acts of terrorism in HKSAR;
(b) civil war, rebellion, revolution, insurrection or military or usurped power in HKSAR;
(c) riot, commotion or disorder in HKSAR otherwise than amongst the employees of Service Provider, Direct Service Provider or any Sub‐Service Provider currently or formerly engaged on the Project;
(d) earthquake in HKSAR; or
(e) tidal wave in HKSAR,
38.1.4 which materially adversely affects the execution of the Project by Service Provider or the manufacture, supply and delivery to the Cyberport site of materials, equipment or installations forming part of the Project by any Sub‐Service Provider.
38.2 Notwithstanding Clause 38.1 above, the following shall be deemed not to constitute or give rise to Force
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Majeure:
38.2.1 Any act, event, omission, happening or non‐happening attributable to the wilful act, neglect or failure to take reasonable precautions of the affected party, its servants, agents or employees;
38.2.2 Any dispute between Service Provider and its staff or any Sub‐Service Providers of Service Provider and its staff; or
38.2.3 Shortage of labour, materials or other resources.
38.3 Neither party shall be liable to the other for any loss of any kind whatsoever including any damages or
abatement of Contract Sum whether directly or indirectly caused to or incurred by the other party by
reason of any failure or delay in the performance of its obligations under this Contract to the extent due
to Force Majeure. Notwithstanding the foregoing, each party shall use all reasonable endeavours to
continue to perform, or resume performance of, its obligations under this Contract for the duration of the
Force Majeure event.
38.4 If either of the parties shall become aware of circumstances of Force Majeure which give rise to, or which
are likely to give rise to any failure or delay on its part, it shall immediately notify the other by the most
expeditious method then available and shall inform the other of the period which it is estimated that the
failure or delay shall continue.
38.5 It is expressly agreed that any failure by Service Provider to perform, or any delay by Service Provider in
performing, its obligations under this Contract which results from any failure or delay in the performance
of its obligations by any person, firm or company with which Service Provider shall have entered into any
contract, supply arrangement or sub contract or otherwise, shall be regarded as a failure or delay due to
Force Majeure only in the event that such person, firm or company shall itself be prevented from or
delayed in complying with its obligations under the contract, supply arrangement or sub contract or
otherwise as a result of circumstances of Force Majeure.
38.6 If any delay or failure to perform as a consequence of any event of Force Majeure (as referred to in Clause
38.1) continues for more than three months, HKCMCL may terminate this Contract immediately by giving
notice in writing to Service Provider, in which event neither party shall be liable to the other by reason of
such termination.
38.7 The only events which shall afford relief from liability for failure or delay shall be events qualifying for
Force Majeure under the express terms of this Clause.
39 Non‐waiver and Remedies Cumulative
39.1 The failure of either party to insist upon strict performance of any provision of this Contract, or the failure
of either party to exercise any right or remedy to which it is entitled, shall not constitute a waiver of that
provision and shall not cause a diminution of the obligations established by this Contract.
39.2 A waiver of any default shall not constitute a waiver of any subsequent default.
39.3 No waiver of any of the provisions of this Contract shall be effective unless it is expressly stated to be a
T/2017/015 CoC ‐ Page 35
waiver and communicated to the other party in writing in accordance with the provisions of Clause 45.
39.4 No payment or concession to Service Provider by HKCMCL or other act or omission of HKCMCL shall in any
way affect the rights of HKCMCL to recover liquidated damages or rebates payable under this Contract
unless a waiver has been expressly made in writing by HKCMCL.
39.5 The rights and remedies of the parties under this Contract are cumulative and in addition to any rights
and remedies provided by law.
40 Dispute Resolution Procedure
40.1 The parties shall attempt in good faith to resolve any dispute arising out of or in relation to this Contract
promptly and in accordance with the terms of this Clause.
40.2 All disputes between the parties arising out of or relating to this Contract shall, in the first instance be
referred to the parties’ respective Project Managers. A reported dispute should be discussed at a
meeting between the Project Managers to be held as soon as reasonably practicable upon the request of
either party. The Project Managers shall attempt to resolve the dispute as soon as possible and in a
manner satisfactory to both parties. The joint and unanimous decision of the Project Managers as
recorded in writing and signed by them shall be binding on the parties.
40.3 If any dispute cannot be resolved by the Project Managers within a maximum of fourteen (14) days (or
such other period as the parties may agree) after it has been referred to the Project Managers under
Clause 40.2, that dispute shall be referred to the Chief Executive of HKCMCL and the Chief Executive of
Service Provider for resolution. The joint and unanimous decision of the Chief Executive of HKCMCL and
the Chief Executive of Service Provider as recorded in writing and signed by them shall be binding on the
parties.
40.4 If the dispute cannot be resolved by the Chief Executive of HKCMCL and the Chief Executive of Service
Provider under Clause 40.3 within a maximum of fourteen (14) days (or such other period as the parties
may agree) after it has been referred to them under Clause 40.3 the parties may agree to refer the dispute
for mediation with the assistance of a mutual adviser appointed by the Hong Kong Mediation Council of
the HKIAC. The programme and structure for any negotiations shall be in accordance with and subject to
the Mediation Rules of the HKIAC for the time being in force or as otherwise agreed in writing between
the parties. All costs arising in respect of the mediation shall be borne by the parties equally.
40.5 If either party does not agree to a dispute being referred for mediation in accordance with Clause 40.4,
or if the parties fail to reach a mutually agreed settlement by mediation within twenty‐eight (28) days (or
such other period as the parties may agree) of the mediator being appointed, then the dispute shall be
resolved by arbitration in accordance with Clause 41.
40.6 While any dispute is being actively pursued for resolution pursuant to Clause 40.2 to 40.4 above, all claims
of the parties and any notice given relating to that dispute shall be suspended provided that:
40.6.1 either party shall be entitled by at least fourteen (14) days’ written notice in writing to the other to end the suspension of such claims and notices; and
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40.6.2 this Clause shall not prevent either party applying for any injunctive relief available at law.
40.7 Work and activity to be carried out under this Contract shall not cease or be delayed by the dispute
resolution procedures set out in this Clause.
41 Arbitration
41.1 Subject to Clause 40 and Clause 41.4 below, any dispute or difference of any kind whatsoever between
HKCMCL and Service Provider arising under, out of or in connection with this Contract shall be referred to
arbitration in accordance with the Domestic Arbitration Rules of the HKIAC for the time being in force.
The reference shall be a domestic arbitration for the purpose of Part II of the Arbitration Ordinance (Cap.
341).
41.2 In the event that HKCMCL is of the opinion that the issues in such a dispute or difference will or may touch
upon or concern a dispute or difference arising under, out of or in connection with the Project Agreement
("the Project Agreement Dispute") then subject to the prior written approval of HKCMCL and provided
that an arbitrator has not already been appointed pursuant to Clause 41.1 above, HKCMCL may by notice
in writing to Service Provider require and Service Provider shall be deemed to have consented to the
referral of such dispute or difference to the arbitrator to whom the Project Agreement Dispute has been
or will be referred.
41.3 Save as expressly otherwise provided, the arbitrator shall have full power to open up, review and revise
any decision, opinion, instruction, notice, order, direction, withholding of approval or consent,
determination, certificate, statement of objection, assessment or valuation of Service Provider or Service
Provider relating to the dispute or difference.
41.4 Notwithstanding any provision to the contrary in this Contract, neither party shall be entitled to commit
arbitration proceedings pursuant to this Clause 41 prior to the issue of the Completion Certificate or
termination of this Contract, if earlier.
42 Bribery and Corruption
42.1 Service Provider shall neither:
42.1.1 offer or give or agree to give any person employed by HKCMCL or acting on its behalf any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or performance of this Contract or any other agreement with HKCMCL or for showing or forbearing to show favour or disfavour to any person in relation to this Contract; nor
42.1.2 enter into this Contract if in connection with it commission has been paid or agreed to be paid to any person employed by HKCMCL or acting on its behalf by Service Provider or on Service Provider's behalf or to Service Provider's knowledge, unless before this Contract is made particulars of any such commission and of the terms and conditions of any agreement for the payment thereof have been disclosed in writing to HKCMCL.
42.2 In the event of any breach of this Clause by Service Provider or by anyone employed by Service Provider
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or acting on Service Provider's behalf (whether with or without the knowledge of Service Provider) or the
commission of any offence by Service Provider or by anyone employed by Service Provider or acting on
behalf of Service Provider under the Prevention of Bribery Ordinance (Cap.201) in relation to this or any
other contract for HKCMCL, HKCMCL may summarily terminate this Contract by notice in writing to Service
Provider with effect from the date specified in the notice. Termination under this Clause shall not
prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to
HKCMCL and HKCMCL may recover from Service Provider the amount or value of any such gift,
consideration or commission.
42.3 The decision of HKCMCL shall be final and conclusive in any dispute, difference or question arising in
respect of:
42.3.1 the interpretation of this Clause (except so far as the same may relate to the amount recoverable from Service Provider under Clause 28 in respect of any loss resulting from such termination of this Contract); or
42.3.2 the right of HKCMCL under this Clause to terminate this Contract; or
42.3.3 the amount or value of any such gift, consideration or commission.
43 Law and Jurisdiction
43.1 This Contract shall be governed by and construed in accordance with the laws of HKSAR.
43.2 The parties agree that the courts of Hong Kong have jurisdiction to settle any disputes in connection with
this Contract and hereby submit to the jurisdiction of those courts for that purpose.
44 Further Assurance
44.1 The Service Provider shall execute or cause to be executed all further documents and do any further act
(including Intellectual Property Rights licence or assignment agreements) as HKCMCL may reasonably
require to give effect to the purposes and intents of this Contract. If Service Provider fails to promptly
execute any such documents, Service Provider hereby appoints HKCMCL its irrevocable attorney to
execute any such documents for Service Provider. The rights of HKCMCL under this paragraph constitute
a power coupled with an interest and are irrevocable.
44.2 HKCMCL shall execute or cause to be executed all further documents and do any further act as Service
Provider may reasonably require to give effect to the purposes and intents of this Contract. If HKCMCL
fails to promptly execute any such documents, HKCMCL hereby appoints Service Provider its irrevocable
attorney to execute any such documents for HKCMCL. The rights of Service Provider under this
paragraph constitute a power coupled with an interest and are irrevocable.
45 Notices
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45.1 Except as otherwise expressly provided, no communication from one party to the other shall have any
validity under this Contract unless made in writing by or on behalf of HKCMCL or as the case may be by or
on behalf of Service Provider.
46 Severability
46.1 If the whole or any part of any provision of this Contract is or becomes invalid, illegal or unenforceable for
any reason, or is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, it
shall be severed from this Contract and the parties shall negotiate in good faith to agree a substitute
provision. The other provisions of this Contract and the remainder of the provision in question shall
remain in full force and effect.
47 Relationship
47.1 Nothing in this Contract shall be deemed to constitute a partnership between the parties nor, except to
the extent expressly provided, constitute either party the agent of the other for any purpose.
47.2 The parties do not intend any term of this Contract to be enforceable by any person who is not a party to
this Contract pursuant to the Contracts (Rights of Third Parties) Ordinance (Cap. 623) (the "Ordinance"),
and the parties agree that this Contract shall be excluded from the application of the Ordinance.
48 Joint and Several Liability
48.1 The liability of any party under this Contract comprising more than one person shall be joint and several.
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Schedule A
Contract Sum, Payment Schedule and Key Dates
Contract Sum
The Contract Sum is HK$ (Hong Kong Dollars
only).
Payment Schedule
1 The HKCMCL Project Manager shall assess and decide the amounts due to the Service Provider from time
to time by way of interim payments for work comprised follows:
(a) when the Service Provider considers that a Payment Stage has been achieved, he shall apply to
the HKCMCL Project Manager a Completion Certificate together with an application of payment
‐ a statement of the amount applied for by the Service Provider by way of interim payment;
(b) the amount applied for by the Service Provider shall be the product of the relevant Payment
Percentage and the relevant Payment Stage Value.
(c) upon receipt of an application for payment, the HKCMCL Project Manager shall within 14 days
notify the Service Provider either :
(i) that he has no objection to the application of the Completion Certificate and/or the
amount applied for, and the HKCMCL Project Manager shall issue a Completion
Certificate to that effect. In any case, such amount may be included in the next
application for interim payment; or
(ii) that he has objections to the application of Completion Certificate and application of
payment, in which case such objections shall be stated and the Service Provider shall
not re‐apply for the Completion Certificate and payment until the grounds for such
objections have been removed; or
(iii) that he has no objection to the application of the Completion Certificate but the amount
applied for, in which case the amount (if any) which the HKCMCL Project Manager shall
assess the amount due with reasons, and such assessed amount (if any) may be included
in the next application for interim payment.
2 If :
(a) the HKCMCL Project Manager permits a revised Project Plan containing a change to the sequence
and timing of the execution of their Works;
(b) the HKCMCL Project Manager grants an extensions of time pursuant to Clause 13;
(c) the Service Provider is instructed by the HKCMCL Project Manager to adopt acceleration
measures pursuant to Clause 12;
(d) the HKCMCL Project Manager instructs a suspension of the Works or any part hereof pursuant to
Clause 12;
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(e) the HKCMCL Project Manager instructs a variation pursuant to Clause 12; or
(f) there shall be a significant change in a Payment Stage Value for by reason of a decision of the
HKCMCL Project Manager in accordance with this Contract,
the HKCMCL Project Manager may carry out an examination and review of the Payment Stages and
Payment Percentages and an assessment of the extent to which the Works have been carried out up to
the date of the review.
3 The Service Provider shall use its best endeavours to co‐operate with and assist the HKCMCL Project
Manager in making any such examination and review and shall provide all such information as the
HKCMCL Project Manager any reasonably request in connection therewith. If as a result of this
examination and review the HKCMCL Project Manager is of the opinion that it is fair and reasonable to
revise a Payment Stage and/or a Payment Percentage, then the HKCMCL Project Manager may give
fourteen (14) days' notice to the Service Provider of his intention to do so. On the expiration of the said
notice and after considering any representations the Service Provider may have made in the meantime,
the HKCMCL Project Manager shall, if he is still of the reasonable opinion that revisions ought to be made,
revise the Payment Stages and Payment Percentages in any manner which he sees fit and issue to the
Service Provider a schedule setting out the Payment Stages and Payment Percentages as so revised.
4 In this Contract, "achievement" of a Payment Stage means completion of the relevant work or
performance of the relevant action in accordance with the requirements of this Contract, including
without limitation the requirements applicable to the relevant work or action contained in the quality
plans prepared by the Service Provider and reviewed without objection by the HKCMCL Project Manager.
5 The Payment Stages (PS) comprise of :‐
% of Contract Sum Cumulative % of
Contract Sum
(a) PS No. 1 Upon signing the contract; 30 30
(b) PS No. 2 Upon completion of Key Milestone 2 and
Accepted by the HKCMCL Project Manager;
10 40
(c) PS No. 3 3 month after completion of Key Milestone 2; 20 60
(d) PS No. 4 6 month after completion of Key Milestone 2; 20 80
(e) PS No. 5 9 month after completion of Key Milestone 2; 20 100
Total : 100
Appendix F
Rev.0 (Effective: 4th June 2013) Offer to be bound – Page 1
OFFER TO BE BOUND
1. Having read the Tender Document including the Conditions of Contract, the Request for Proposal for Tender no. T/2017/015 - Robotic Concierge Services. I/we agreed to be bound by the terms and conditions as stipulated therein.
2. I/We do hereby offer to bind a contract with HKCMCL in the sum of Hong Kong Dollars ……………………………………………………………………………………………………………… ………………………………………….…………………….. (HK$ ……………………………………) or such sum as may be ascertained in accordance with the said terms and conditions.
3. I/We, also certify that the particulars given by me/us below, are correct:-
3.1 The number of my/our/the Company's Business Registration Certificate is
4. I am the Secretary/Managing Director of the limited company mentioned below and duly authorized to bind this company by my signature.
- or -
I am a partner/we are partners in the firm mentioned below and duly authorized to bind the firm and all partners of the firm for the time being.
- or -
This tender is submitted with the authority and on behalf of .................................................................................................................................................................... whose registered office is situated at ......................................................................................................... .................................................................................................................................................................... Hong Kong.
In the event of any queries relating to our offer please contact