e-procurement agreement - final
TRANSCRIPT
E-PROCUREMENT SERVICE PROVIDER AGREEMENT
This Agreement made on this ……………. day of ………………………….
2012 at …………………………………
between………………………………………………….
……………………………………… a Limited Company incorporated under
the Companies Act, 1956 having its Registered Office at
………………………………………………………………………………………
…………………… hereinafter referred to as the “Service Recipient” (which
expression unless excluded by or repugnant to the context shall mean and
include its successors in office and assigns)-the party of the FIRST PART.
AND
MSTC Limited, a Government of India Company within the meaning of
Section 617 of the Companies Act, 1956having its Registered Office at
225-C, AJC Bose Road, Kolkata – 700 020, hereinafter referred to as the
“Service Provider” (which expression unless excluded by or repugnant to
the context shall mean and include its legal heirs, successors in office and
assigns)-MSTC, the party of the SECOND PART.
WHEREAS MSTC, the party of the SECOND PART has developed an
elaborate system for providing e-procurement services to its various clients
enabling them to procure goods, services and works and its e-procurement
comprehensive infrastructure helps expansion of e-commerce providing a
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robust, proven platform enabling trade between companies of different
sizes, platforms and locations.
AND WHEREAS the e-procurement system provides real-time bidding
solutions for buyers and sellers that bring competitive level of profitability,
control and simplicity to corporate procurement and liquidation processes
and includes inter alia e-tendering and e-reverse auctioning for inviting on-
line bids from intending bidder(s).
AND WHEREAS the ‘Service Recipient’ has discussed with the officials of
MSTC, the party of the SECOND PART and has acquainted itself
thoroughly with such internet based e-procurement system developed by
MSTC and has expressed its desire to use MSTC’s e-procurement system
for procuring their goods, services and works.
AND WHEREAS on the basis of the discussion between the officials of the
‘Service Recipient’ and ’Service Provider’, the party of the FIRST PART
has expressed its willingness to avail the e-procurement services of the
party of the SECOND PART and the ‘Service Provider’ has expressed its
willingness to render its e-procurement services to the ‘Service Recipient’
subject to certain terms and conditions which were discussed and agreed
to by and between the parties as provided hereinafter.
NOW THIS AGREEMENT WITHNESSETH the terms and conditions
agreed to by and between the parties hereto for the purpose aforesaid as
under:-
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1. Definitions:
1.01: ‘MSTC e-procurement system’-means the use of web /
internet based technology developed by the Service Provider to
support key elements of the procurement process such as: requisition
or Web-based ERP (Enterprise Resource Planning), e-sourcing, e-
tendering, e-reverse auctioning, e-Informing / ordering /invoicing
/payment/ specification etc. for business to business purchase and
sale of goods /services / works.
1.02: Web-based ERP (Enterprise Resource Planning): means
creating and approving purchasing requisitions, placing purchase
orders and receiving goods and services by using a software system
based on Internet technology.
1.03: e-sourcing means identifying new suppliers for a specific
category of purchasing requirements using Internet technology.
1.04: e-tendering means sending requests for information and prices
to suppliers and receiving the responses of suppliers using Internet
technology.
1.05: e-reverse auctioning means using Internet technology to buy
goods and services from a number of known or unknown suppliers.
1.06: e-informing means gathering and distributing purchasing
information both from and to internal and external parties using
Internet technology.
1.07: ‘Service Recipient’ means the party of the FIRST PART who
receives e-procurement service from the party of the Second Part.
1.08: ‘Service Provider’ means the party of the SECOND PART who
provides / renders e-procurement service to the party of the First
Part.Page 3 of 17
1.09: ‘Copy right other intellectual property rights’ will imply in this agreement to the extent that MSTC, the party of the SECOND PART is the owner of the copy right and trade mark relating to the e-procurement site related to this agreement and both Indian and international copyright and trademark laws protect the entire contents of the Site and will include all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, competition law, information technology rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
1.10: “Confidential Information” means all technical and non-technical information and documents disclosed or produced by either party in the course of this Agreement which are disclosed in written form and identified by a marking thereon as proprietary, or oral information which is defined at the time of disclosure and confirmed in writing within ten (10) business days of its disclosure, shall be deemed the "Confidential Information" of the disclosing party. Notwithstanding the above, the parties agree that any information (in any form, whether in tangible or Intangible) relating to the Service Provider’s Technology is considered Confidential Information of the Party of the SECOND PART.
2. This is a Service Provide Agreement wherein MSTC the party of the
SECOND PART shall act only as a Service Provider to the party of
the FIRST PART and shall not be a party to any contract that the
party of the FIRST PART may enter into with its supplier(s) /
vendor(s) / contractors pursuant to use of the system provided by
MSTC, the party of the SECOND PART.
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3. ROLES AND RESPONSIBILITIES OF MSTC, THE PARTY OF THE
SECOND PART:
(a) MSTC, the party of the SECOND PART shall make all reasonable
arrangements to provide the party of the FIRST PART with the
facility to use the MSTC e-procurement system throughout the
duration of the Agreement. MSTC shall make its e-procurement
technology infrastructure available for use by the Party of the
FIRST PART. However, at no point of time, the Service Recipient
will have any ownership, in full or in part, of any of the facilities
being provided by MSTC, the party of the SECOND PART.
(b) If required by the party of the FIRST PART, MSTC-the party of the
SECOND PART shall arrange for providing training to the users of
the e-procurement system at the Service Recipient’s end as well
as the vendors who shall participate in the events that shall be
conducted by the Service Recipient using the e-procurement
system of the Service Provider. The cost of such required training
shall be borne by the Service Recipient. Service Provider shall
depute its executive(s) for imparting training.
(c) MSTC, the party of the SECOND PART shall undertake minor
customization of the e-procurement system to suit any specific
need of the party of the FIRST PART without charging any fees
from the Service Recipient for any minor customization. If major
changes / customizations are required, MSTC, the party of the
SECOND PART shall be at liberty to charge customization fees
MSTC, the party of the SECOND PART retains the exclusive right
to classify the amendment / customization as minor or major.
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(d) It shall be the responsibility of MSTC, the party of the SECOND
PART to keep its e-procurement system updated so as to be
complying with the relevant guidelines of Central Vigilance
Commission and provisions of Information Technology Act 2000
as may be amended from time to time. Accordingly, MSTC, the
party of the SECOND PART shall get its system periodically
audited by recognized authorities like Standardisation, Testing and
Quality Certification (STQC) Directorate which is an attached office
of the Department of Electronics and Information Technology,
Government of India,
(e) MSTC, the party of the SECOND PART shall maintain a valid ISO
27001:2005 certification (which relates to Information Security
Management System) throughout the duration of this Agreement.
4. ROLES AND RESPONSIBILITIES OF THE PARTY OF THE FIRST
PART-THE SERVICE RECIPIENT:
i. It shall be responsibility of the ‘Service Recipient’ to get well
acquainted with the e-procurement system of the ‘Service
Provider’ so as to use the system correctly and make use of all
the features available in the system.
ii. The party of the FIRST PART shall nominate one Nodal Officer
for e-procurement who shall be registered with the ‘Service
Provider’ as the authorized person for the ’Service Recipient’ to
deal with the ‘Service Provider’ in the affairs of e-procurement
service. Such Nodal Officer shall be the single point contact for
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all communications between the ‘Service provider’ and the
’Service Recipient’.
iii. The Nodal Officer nominated by the party of the FIRST PART
shall create various users of the Buyer.
iv. All activities under the offered e-procurement system (like from
generation of indents to Issuance of LOI / Purchase Order to
successful vendors) will be carried out by different users/clients
of the ‘Service Recipient’; and MSTC, the party of the SECOND
PART shall not be involved in any of the activities which is
exclusively related between the ‘Service Recipient’ and its users/
clients.
v. All the users of the ‘Service Recipient’ must have Digital
Signature Certificate of class II or class III. The Digital Signature
Certificates shall be either for signing any document
electronically or for data encryption. The ‘Service Recipient’ shall
have to purchase the required number of Digital Signature
Certificates for its users from authorized agencies at its own cost
and arrangement.
vi. The party of the FIRST PART shall arrange for publicity of its
forthcoming events in print media and through its website at its
own cost.
vii. If any vendor participates in any e-procurement event without
paying the transaction fees to the ‘Service Provider’, the party of
the FIRST PART shall extend full cooperation to MSTC, the party
of the SECOND PART for recovering the transaction fees from
the vendor(s) to the extent of but not limited to deducting it from
any payment due to the vendor from the buyer.Page 7 of 17
viii. EMD against any e-tender or e-reverse auction shall be
collected and refunded by the party of the FIRST PART and
MSTC, the party of the SECOND PART shall not be responsible
for collection, processing or refund of EMD and for any dispute
between the party of the FIRST PART and the vendors arising
out of any issues related to EMD.
ix. Further role and responsibility matrix shown in Annexure-A
hereto.
5. NON – LIABILITY CLAUSE OF THE GOVERNMENT OF INDIA
It is clearly understood and accepted by the parties hereto that
Government of India is not a party to this Agreement in any way and
no liability whatsoever attaches to the Government in any manner
arising out of any execution, performance, non-performance or
otherwise of this Agreement by the parties hereto.
6. INCORPORATION OF INTEGRITY PACT BY REFERENCE
The parties hereto agree to be bound by the terms of the Integrity
Pact prescribed under the rules, the terms whereof are known to the
parties hereto and deemed to be incorporated in this Agreement by
reference.
7. TRANSACTION FEES AND TRAINING CHARGES
(a) MSTC shall collect transaction fees at the rate of 0.05% of the
estimated value of the procurement per event from all the Page 8 of 17
participating vendors subject to a minimum of Rs 1,000/- (Rupees
One Thousand only) and maximum of Rs 15,000/- (Rupees
Fifteen Thousand only) per event per vendor. For the avoidance of
doubt, an event shall be construed as an e-tender or an e-reverse
auction or any other mode of e-procurement services as may be
mutually decided by the ‘Service Provider’ and the ‘Service
Recipient’ irrespective of the number of items being procured
through the same. Service tax on the transaction fees and other
statutory charges on service tax shall be payable extra by the
vendors.
(b) For imparting training to the users of the Buyer, MSTC, the party
of the SECOND PART shall be paid training charges (along with
applicable service tax) by the ‘Service Recipient’ at the following
rate :
(i) For a training session containing one day, the training
charges shall be Rs 20,000/- (Rupees Twenty Thousand
only) plus applicable service tax and other statutory
charges on service tax.
(ii) For a training session containing more than one day,
training charges shall be Rs 20,000/- (Rupees Twenty
Thousand only) for the first day and Rs 5,000/- (Rupees
Five Thousand only) per day for all subsequent days.
(iii) For avoidance of doubt, a training session shall mean a
period of training that will involve a single trip made by
MSTC’s official to the place of the party of the FIRST
PART.
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(c) All such trainings shall take place at the premises of the ‘Service
Recipient’ only. MSTC, the party of the SECOND PART shall raise
monthly bills towards training charges and the party of the FIRST
PART shall make the full payment within 30 days from the date of
receipt of the bills.
(d) Necessary arrangements for the training sessions like providing
computers, conference hall, internet connection, paper, pencil etc
shall be made by the ‘Service Recipient’ at its own cost and
MSTC, the party of the SECOND PART shall not bear any cost
towards such arrangements.
(e) MSTC, the party of the SECOND PART reserves the exclusive
right to revise the transaction fee and/or training charges from time
to time during the currency of this Agreement.
(f) The service tax or any other statutory charges on the transaction
fees shall be payable extra by the vendor(s).
(g) MSTC shall not collect any transaction fee from the Buyer.
8. DURATION OF CONTRACT
The Agreement shall remain valid for a period of 5 (five) years from
the date of signing. At the end of the validity period, the Agreement
may be extended for further such period as may be mutually agreed
by the parties hereto on same or different terms and conditions as
may be mutually agreed by both parties. Such extension of the
Agreement along with the terms and conditions shall be written and
signed by both the parties.
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9. TERMINATION OF AGREEMENT
Either party may terminate the Agreement before the end of validity of
the Agreement as stated aforesaid by serving one month’s notice in
writing to the other party. Under such a case, neither party shall be
entitled to claim any compensation from the other party for the pre-
mature termination of the Agreement. All pending jobs as on the date
of termination of the Agreement shall be continued till completion as if
the Agreement was in force.
10. GENERAL PROVISIONS
(a) While MSTC, the party of the SECOND PART shall make all
reasonable efforts to make its e-procurement system available for
use by the ’Servce Recipient’; and MSTC, the party of the
SECOND PART shall not be responsible for any disruption of
services due to reasons beyond its control as covered under Force
Majeure clause. MSTC shall not be liable to pay any compensation
to either the party of the FIRST PART or its vendor(s) for any loss
accrued to them due to such disruption in services.
(b) During the currency of this Agreement, the party of the FIRST
PART shall not engage the services of any other agency for e-
procurement services. If any particular requirement of the ‘Service
Recipient’ remains unfulfilled even after all customizations have
been made by the ‘Service Provider’, the party of the FIRST PART
may engage another service provider for that particular event after
obtaining written consent of the party of the SECOND PART.Page 11 of 17
(c) MSTC, the party of the SECOND PART shall not be liable in any
manner for any inconvenience due to any disruption in internet
services at bidders’ end. However, if any disruption takes place at
Service Provider’s end during the progress of any event, MSTC,
the party of the SECOND PART shall make all efforts to restore
normal services at the earliest.
(d) Neither party shall assign or transfer its rights and obligations
under this Agreement (in whole or in part) without the prior written
consent of the other.
(e) No waiver of any breach of this Agreement shall be deemed to be
a waiver of any other or of any subsequent breach. The failure of
either party to enforce at any time any of the provisions of this
Agreement shall in no way be interpreted as a waiver of such
provision.
(f) In the event that any or any part of the provisions contained in the
Agreement be determined invalid, unlawful or unenforceable to
any extent, such terms, conditions or provisions shall be severed
from the remaining provisions which shall continue to be valid and
enforceable to the fullest extent permitted by law.
(g) This Agreement replaces and supersedes any prior
understandings, communications and representations whether
verbal or written. This Agreement may only be amended by
execution of a written document duly signed by the authorized
representatives of both parties.
(h) The ‘Service Recipient’ hereby agrees that their users/clients will
be responsible for maintaining the confidentiality of the password
and account, and are fully responsible for all activities that occur Page 12 of 17
under their password or account. The users will be responsible to
notify the ‘Service Provider’ about any unauthorized use of the e-
procurement site and the ‘service Recipient’ will impose terms and
restrictions upon their users so that the ‘Service Provider’ cannot
and will not be liable for any loss or damage arising from their
failure to comply with the breach of security of their account.
(i) The ‘Service Recipient’ hereby agrees that the ‘Service Provider’
will not be responsible for the information provided in the tenders
published. In case of any clarifications arising out of the tenders,
the users have to contact the respective Tender Inviting Authority,
i.e. the party of the FIRST PART herein.
(j) The ‘Service Recipient’ hereby agrees that the suppliers / the
bidders have to ensure to the effect that the files being uploaded
by them are free from all kinds of viruses and contains only the
relevant information as stated by the tender inviting authorities for
the particular tender. If any bidder / company has uploaded /
attached irrelevant data, bogus or fabricated certificates towards
his qualification requirements to the respective tender then their
user account will be made liable for termination permanently or
temporarily.
(k) The ‘Service Recipient’ hereby agrees that the users/bidders are
entirely responsible for all Content that they upload, post, e-mail or
otherwise transmit via the e-Procurement portal. The party of the
SECOND PART herein does not control the Content posted via
the e-Procurement portal and, as such, does not guarantee the
accuracy, integrity or quality of such Content. Under no
circumstances will the ‘Service Provider’ be liable in any way for Page 13 of 17
any Content, including, but not limited to, for any errors or
omissions in any Content, or for any loss or damage of any kind
incurred as a result of the use of any Content posted, e-mailed or
otherwise transmitted via the Site.
(l) The ‘Service Recipient’ hereby agrees that their users are to
comply with all local rules regarding online conduct and acceptable
Content. Specifically, must agree to comply with all applicable laws
regarding the transmission of technical data to and from India or
the country in which they reside.
11. FORCE MAJEURE
If, any time during the continuance of this Agreement, the
performance, in whole or in part by either party, of any obligation
under this Agreement be prevented or delayed by reason of any war,
hostility, act of public enemy, civil commotion, sabotage, fires, floods,
explosions, epidemics, quarantine restrictions, strikes, lock-outs,
Technical and / or Connectivity failure which is entirely beyond the
control of the ‘Service Provider’, acts of God (hereinafter referred to
as ‘events’) provided notice of happening of any such eventuality is
given by the affected party to the other within 21 days from the date
of occurrence thereof, neither party shall by reason of such event
have any claim for damages against the other party in respect of such
non-performance or delay in performance, provided further that if the
performance in whole or part of any obligation under this Agreement
is prevented or delayed by reasons of any such event for a period
exceeding sixty days, the parties shall try to arrive at an amicable
settlement, failing such settlement may terminate this Agreement.Page 14 of 17
12. ARBITRATION
In the event of any dispute or difference relating to the interpretation
and/or application of the provisions of any clause of this Agreement,
such dispute or difference shall be referred by either party to the
Arbitration of sole arbitrator to be nominated by the Secretary to the
Government of India, In Charge of the Bureau of Public Enterprises.
The request for appointment of arbitrator to the said appointing
authority must be made giving copy of request to the other side. The
Arbitration and Conciliation Act 1996 shall be applicable in all
circumstances other than agreed terms and procedure between the
parties. The award of the Arbitration shall be binding upon the parties
to the dispute, provided, however, any party aggrieved by such award
may make a further reference within 30 days of the final award
passed by the sole arbitrator to the Law Secretary, Department of
Legal Affairs, Ministry of Law & Justice, Government of India to
decide the legality of the award of the sole arbitrator within the scope
of this agreement and law of contract. Upon such reference the
dispute shall be decided by the Law Secretary himself, or the Special
Secretary/Additional Secretary when so authorized by the Law
Secretary, whose decision shall bind the parties finally and
conclusively. The parties to the dispute will share equally the cost of
arbitration as intimated by the Arbitrator.
13. GOVERNING LAW
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The interpretation, construction and performance of this Agreement
shall be governed exclusively by laws in India and the parties
expressly submit to the exclusive jurisdiction of the courts of Kolkata
subject to the provision prescribed in clause 12 of this agreement.
14. Counterparts:
This Agreement may be executed simultaneously in two counterparts, each of which will be considered an original, but both
of which together will constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have put their respective
hands and seals on the day, month and year above first written.
For :
(
)
Company Seal
Witness :
For : MSTC LIMITED
(
)
Company Seal
Witness :1. 1.
2. 2.
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Annexure A
Roles and Responsibility matrix for MSTC and the Buyer
Sl No. Activity Action By1 Registration of Nodal Officer of Buyer MSTC2 Registration of other users of Buyer Buyer3 Registration of vendors Buyer4 Training to users of Buyer and
vendors
MSTC
5 Indent raising / Item entry Buyer6 Publicity (advt) through newspaper Buyer7 Event creation Buyer8 Tender Committee creation Buyer9 NIT / Corrigendum upload Buyer10 Pre-Bid Meeting Buyer / vendors11 EMD receipt Buyer12 Transaction fee receipt MSTC13 Tender Opening Event Buyer14 Bid evaluation Buyer15 Bid approval / rejection Buyer16 Issuance of LOI / P.O Buyer17 System maintenance / up gradation MSTC
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