THIS CONSULTANCY SERVICES AGREEMENT (“Agreement”) is made as of the ______day of ______, 2011 (the “Effective Date”).
BY AND BETWEEN:
UNIVERITAS GADJAH MADA ( UGM) Based on the Notary Act 48, dated August 8, 1995 executed before Notary Public ______executed before Notary and having its address at Jl. (hereinafter referred to as “the Consultant” which expression shall include its successors, representatives and permitted assigns);
AND
a company registered under the laws of India, having its registered office situated at ______, India (hereinafter referred to as “the Client” which expression shall include its successors, representatives and permitted assigns).
Consultant and Client are each referred to herein individually as a “Party” or collectively as the “Parties”.
WHEREAS:
A.Client is one of the largest private airport operators and a leading infrastructure development company in India engaged and having expertise, inter alia, in the development, construction, operation and management of airports, and has entered into a memorandum of understanding dated January25,2011 (“MOU”) with Angkasa Pura I, P.T. (“AP-I”) for setting up and operating a green field international airport in Yogyakarta, Java in the Republic of Indonesia (“Airport”).
B.Consultantis a consultancy firm based in Indonesia that provides professional advisory/ consultancy services relating to airport planning with extensive experience and expertise in conducting full range of airport feasibility and master planning studies and preparation of reports based on such studies.
C.The grant of development rights relating to the Airport by the Government of Indonesia is subject to a feasibility study of the Airport being conducted and submission of the report of such study to the Directorate General of Civil Aviation, Government of Indonesia (“DGCA”). Accordingly, Client wishes to undertake a feasibility study of the aforesaid Airport and obtain a report and a master plan based on such study (“Airport Project”). Accordingly, Client has engaged L&B Worldwide Australia Pty Ltd (“L&B”) as the international master planning consultant for the aforesaid Airport Project.
D.Client wishes to engage the services of the Consultantin relation to the Airport Project, in view of the local area expertise of the Consultant.. Consultant acknowledges and agrees that it has been engaged by the Client, solely on the condition that the Consultant will have to work together and support L&B, on green field International Airport Project in Yogyakarta, Java in the Republic of Indonesia.
E.The Parties have agreed to enter into this Agreement to record the terms and conditions with regard to the services to be provided by the Consultant to the Client.
NOW THEREFORE, the Parties hereby agree as follows:
1.Scope of Services
1.1Consultant agrees to provide to the Client, the services relating to the Airport Project as described in Schedule A hereto and the technical proposal of the Consultant (“Proposal”) set forth in Annexure 1 hereto (collectively, the “Services”), as amended from time-to-time in accordance with the terms of this Agreement. The scope of the Services to be provided by the Consultant, as set forth in Schedule A, shall broadly comprise of the following:
(a)Performance of certain identified tasks by the Consultant which are hereby agreed between the Parties and set forth in Schedule A to be the primary responsibility of the Consultant;
(b)Playing a supporting role to L&B, including without limitation, reviewing and advising L&B on certain services relating to the Airport Project to be solely provided by L&B and set forth in Schedule A to be the primary responsibility of L&B;
(c)Working closely with L&B and under the supervision and guidance of L&B and submitting feasibility report(s) and master plan(s) together with supporting analyses, information, drawings, designs, documentation and other deliverables relating to the Services as set forth in Schedule B (collectively, the “Deliverables”) within the prescribed timelines set forth in the Airport Project time schedule set forth in Schedule C hereto, to the satisfaction of the Client;
(d)Working with the Client or any nominee of the Client and using its best efforts to coordinate, organize, and set up meetings with government and regulatory authorities and facilitate and ensure that all licences, permits and other approvals required under applicable law pertaining to the Airport, including without limitation, the permit from the Directorate General of Civil Aviation, Government of Indonesia (“DGCA”) and the approval letter from the Ministry of Transportation, Government of Indonesia (“Transport Ministry”), are obtained within a period of 6 (six) months from date hereof; and
(e)Translations of all documents and records from the local language to English, as required by the Client or L&B.
1.2In the event of any conflict between the terms of this Agreement, any of the schedules hereto, or the Proposal, the terms and conditions of these documents will be interpreted according to the following order of precedence: (i) this Agreement; (ii) the schedules hereto; and (iii) the Proposal.
1.3A separate scope of services may be developed by Consultant together with Client, for any additional project/ assignment, and for any material modification to the Services, on terms and conditions as mutually agreed between the Consultant and Client, provided that any such additional project or modification to the Services shall be binding on the Parties only if it is executed as an amendment to this Agreement in accordance with the terms hereof.
2.OBLIGATIONS OF THE CONSULTANT
2.1The Consultant shall be solely responsible for the fulfilment of the following obligations:
(a)The Consultant shall provide the Services and submit the Deliverables to the Client, in the manner set forth in this Agreement. The Consultant shall address all reports and Deliverables hereunder, to the Client and AP-I, in the manner specified by the Client in its sole discretion;
(b)The Consultant shall work closely and co-operate with L&B in performing the Services and completion/ submission of the Deliverables in the manner set forth herein;
(c)The Consultant shall provide its recommendations to the Client on all permits, approvals, licences, etc required by the Client in relation to the Airport;
(d)The Consultant shall use its best efforts to coordinate, organize, and set up meetings with government and regulatory authorities and facilitate and ensure that all licences, permits and other approvals required under applicable law pertaining to the Airportare obtained within a period of 6 (six) months from the date hereof;
(e)The Consultant shall maintain accurate technical, financial and other records/ supporting documents and information relating to the Services and Deliverables hereunder;
(f)The Services and the Deliverables forming part thereof shall be deemed to have been satisfactorily completed or submitted, only upon the Client communicating its formal acceptance of such Deliverables and/ or the Services to the Consultant, said communication of formal acceptance shall be deemed given unless Client provides a written notice of non-acceptance within thirty (30) days of submittal of Deliverables or within thirty (30) days after the end of any month in which Services were provided. Provided however that Client shall use its best endeavours to communicate its acceptance or non-acceptance of the Deliverables to the Consultant earlier than the aforesaid thirty (30) day period, to the extent reasonably possible. In the event the Client is not satisfied with any of the Deliverablesor Services, then Client shall notify the Consultant in writing detailing the deficiencies, and thereafter, the Consultant shall, at no additional cost to the Client, promptly correct any deficiencies or other aspects which preventedthe Client from originally accepting such Services and/ or Deliverables. The Consultant shall take necessary corrective actions until the Client formally communicates its acceptance of such Deliverables and/ or the Services to the Consultant. Where the Client has stipulated any Service specifications and acceptance criteria (if any) for one or more Deliverables, it is the responsibility of the Consultant to ensure that the Deliverables conform to such specifications or acceptance criteria, as the case maybe.
2.2For the avoidance of doubt, it is clarified that notwithstanding any specific responsibility of L&B with regard to the Airport Project, the Consultant acknowledges and agrees that it shall remain jointly and severally responsible and liable for all services relating to the Airport Project, whether such services are directly provided by the Consultant, or otherwise.
3.Term and TERMINATION
3.1Subject to earlier termination in accordance with the provisions hereof, this Agreement shall commence on the Effective Date hereof and shall continue in full force and effect for a period that is the earlier of: (i) one (1) year from the Effective Date; or (ii) satisfactory completion of all the Services and Deliverables in the manner set forth in clause 2.1 (f) above (“Term”).
3.2This Agreement may be terminated at any time without cause and without assigning any reasons, by the Client by providing thirty (30) days’ prior written notice to the Consultant, provided that all amounts owing under this Agreement for all work completed by the Consultant, must be paid by Client up to and including the date of notice of termination.
3.3Notwithstanding clause3.2 above, upon the occurrence of any of the following events, Client may terminate this Agreement at any time with immediate effect by serving written notice to the parties:
(a)if Consultant becomes insolvent, makes a general assignment for the benefit of creditors or commits an act of bankruptcy, or if a petition for bankruptcy or for its reorganisation or the readjustment of its indebtedness is filed by or against it, or if a receiver, trustee or liquidator of all or a substantial part of its property is appointed or applied for, provided such petition or application is not discharged, vacated or stayed within thirty (30) days thereafter; or
(b)amaterial default by Consultant which is not capable of remedy or which, if capable of remedy, is not remedied to Client’s reasonable satisfaction within fifteen (15) days after Client has given Consultant written notice requiring it to be remedied.
(c)any governmental or regulatory or judicial law, rule, regulation or action that restricts, prevents or prohibits in any manner, the Client from setting up and operating the Airport, or undertaking the Airport Project set forth herein.
3.4Upon the occurrence of any of the following events, Consultant may terminate this Agreement at any time with immediate effect by serving written notice to Client:
(a)if Client becomes insolvent, makes a general assignment for the benefit of creditors or commits an act of bankruptcy, or if a petition for bankruptcy or for its reorganisation or the readjustment of its indebtedness is filed by or against it, or if a receiver, trustee or liquidator of all or a substantial part of its property is appointed or applied for, provided such petition or application is not discharged, vacated or stayed within thirty (30) days thereafter; or
(b)a material default by Client which is not capable of remedy or which, if capable of remedy, is not remedied to Consultant’s reasonable satisfaction within thirty (30) days after Consultant has given Client written notice requiring it to be remedied.
3.5Upon any termination of this Agreement (except by the Client for the events set forth in clause 3.4 above), Client will be liable for payment for all work completed by the Consultant hereunder until such date of termination.
3.6If Client requests Consultant to suspend work (other than due to breach by the Consultant) on any ongoing project and requests that Consultant remain ready to resume the work at some future time with the same or equally qualified personnel, Consultant shall make a commercially reasonable effort to comply with Client’s request. If Consultant does not procure the same or equally qualified personnel at the time requested by Client, then either Consultant or Client may terminate this Agreement upon notice to the other without further liability.
3.7These terms and conditions will remain in force during the period that Consultant provides any Services to Client, and will continue in effect as long as necessary thereafter to give Consultant and Client the benefit of these provisions.
4.FEES AND PAYMENTS
4.1In consideration of the Consultant providing the Services and submitting the Deliverables, Client agrees to pay Consultant all undisputed fees, expenses and costs (collectively “Fees”) invoiced by Consultant in the manner set forth in Schedule D, within thirty days (30) from the date of receipt of the invoice by Client.
4.2It is clarified that the Client shall not be liable to pay any additional amounts or out-of-pocket expenses incurred by Provider in the performance of the Services hereunder, in addition to, or over and above the Fees specified hereinabove.
4.3All local taxes and other deductions applicable to the Consultant, as required under applicable laws and regulations in Indonesia shall be borne by the Consultant. All taxes arising outside the territory of Indonesia, i.e. from India shall be borne or reimbursed, as the case maybe, by the Client.
5.INTELLECTUAL Property Rights
5.1Client acknowledges that as part of performing the Services, Consultant may utilize proprietary software, methodologies, tools, specifications, drawings, sketches, models, designs, forms, presentations, analysis, charts, schedules, text, graphics, plans, samples, records, documentation, works of authorship or creative works, ideas, knowledge, pre-existing data or other materials which have been originated or developed by the Consultant or which have been purchased by, or licensed to, the Consultant (collectively, “Consultant Materials”).Client acknowledges and agrees that Consultant is the sole and exclusive owner of all copyright, patents, trademarks, know-how and other intellectual property rights (collectively “Intellectual PropertyRights”) in relation to such Consultant Materials.
5.2Client is granted a licence to use the Consultant Materials, in relation to the Airport Project or on any Client internal projects, as determined by Client in its sole discretion. Client acknowledges and agrees that the Consultant Materials shall not be used for any purpose other than as aforesaid, except with the prior written approval of the Consultant, not to be unreasonably withheld, delayed or conditioned.
5.3All Deliverables developed or supplied specifically for Client pursuant to the Services will be the property of Client upon delivery and payment there for including the ownership of any Intellectual Property Rights in relation to such Deliverables. For the avoidance of doubt, it is clarified that Consultant shall have no right to use the Deliverables and/ or any modifications, enhancements, revisions, derivative works or substitutions thereto, in any manner whatsoever, without the prior written approval of the Client.
6.Confidentiality
6.1Each Party (“Recipient”) shall keep confidential the Confidential Information of the other Party (“Discloser”) and shall use such information solely for the purposes of performance of this Agreement and for no other purpose. Recipient shall use the highest degree of care that it uses to maintain the confidentiality of its own confidential information, but in no event less than a reasonable degree of care. Recipient shall not disclose the Confidential Information to any person, other than to (i) its employees, officers, personnel and professional advisors, who have a need to know in connection with the Airport Project or the performance of the obligations under this Agreement; and (ii) to any other party only with the prior written consent of Discloser; provided in each case that it shall be a breach under this Section by Recipient, in the event any act or omission by any such party results in the Confidential Information not being treated in accordance with this Section.
6.2For the purposes of this Section “Confidential Information” means any and all technical, financial, operational, business or other information or data that is disclosed orally, in writing, in machine readable form, electronically, by visual presentation, or by permitting access to such information or otherwise, by or on behalf of the Discloser to the Recipient and that is marked or indicated to be confidential, or that would reasonably be expected to be treated as confidential.
6.3The obligation to maintain confidentiality shall not apply to: (a) information which is available in the public domain, without breach by the Recipient; (b) information that is known by the Recipient at the time of receiving such information; or (c) information hereafter furnished to the Recipient by a third party, without breach of confidentiality. If Recipient is required to disclose any Confidential Information pursuant any Applicable Law or an order of any judicial or statutory authority, Recipient shall give Discloser reasonable prior notice of the circumstances of such requirement prior to disclosing such information and shall co-operate with the Discloser to minimise the extent of disclosure pursuant to such requirement, including in any effort by the Discloser to contest or obtain a protective order against such requirement.
6.4Recipient shall, promptly upon the request by Discloser return or destroy all Confidential Information including without limitation, all originals, copies, extracts and summaries and certify to the Discloser that it has returned or destroyed such information.
6.5Recipient agrees that the use or disclosure of the Confidential Information in breach of this Section will cause irreparable harm or injury to the Discloser, which is incapable of recompense by way of damages. Accordingly Recipient agrees that Discloser is entitled to seek injunctive or other appropriate relief to restrain any breach or threatened breach of this Section.
6.6The provisions of this Section shall survive the termination or expiry of this Agreement.
7.REPRESENTATIONS AND WarrantIES
7.1Consultant represents,warrants and covenants that:
(a)it has the necessary skill, experience and expertise and adequate knowledge of local laws, procedures and regulations required to provide the Services;
(b)itshall ensure that reasonable skill, care and diligence is exercised in performing the Services;
(c)each of its employees/ consultants/ agents assigned to perform Services shall have the proper skill, qualifications, training and background so as to be able to perform in a competent and professional manner;
(d)all work will be performed materially in accordance with the terms and conditions set forth herein and to the satisfaction of the Client;
(e)the Client shall receive free, good and clear title to allDeliverables developed specifically for the Client hereunder;
(f)the Services or the Deliverables hereunder shall not infringe or violate any Intellectual Property Rights or other rights of any third party; and
(g)the provision of the Services or the Deliverables hereunder shall be in accordance with the provisions of all applicable laws, rules and regulations.