Dated: December 06, 2006
Manager, Information Technology
Dhaka Main Office
1/1-B Sonargaon Road
Dhaka – 1205.
RE: Legal Opinion regarding Maintenance Agreement for “W”.
We refer to your letter dated 22 November 2006 and our previous opinion no. LKP/MHH/11/06 dated 8 November 2006 on the above subject.
You have asked us by your letter to clarify our previous opinion.
We have again perused the draft agreement for “W”.
Our revised opinion on the draft agreement is given below:
|General||Please ensure that the correct date on which this agreement is made is given at the beginning of the Agreement instead of “15th Nov, 2006”.|
|Addition of a new Clause 1.3||After Clause 1.2 we suggest the addition of a new clause which should be as follows:
“1.3 The 1st Party is aware of the need of BANK 1 and is competent and possesses the requisite expertise to provide such services as needed.”
|Clause 2.2||In this clause it is stated that if any service request is made from 20:00 to 22:00 hours then it will be treated as ‘Special Call Service’ but the 1st party will attend for necessary solution on mutually defined time. So in effect the 1stst party will get Tk. 1000 per hour for working during ‘Regular Call Service’ hours just because the request was made outside these hours. That is why we suggest that Clause 2.2 be deleted and replaced with the following:
Party may even attend for the solution during 09:00 to 20:00 of a working day if the parties so agrees. This might mean that the 1“2.2 Any service rendered beyond 09:00 to 20:00 hours of a working day will be treated as ‘Special Call Service’. The 2nd Party will inform the 1st party about any trouble which has occurred in any of the listed items in Appendix-3 through telephone (Contact windows are mentioned in Appendix-2) or fax or personally. The 1st party will attend for the necessary solution on mutually defined time and will charge to the 2nd Party Tk. 1,000 (Taka one thousand) only per hour or any part thereof by issuing additional invoice.”
|Clause 2.3||The second sentence of Clause 2.3 is not properly drafted and as such we suggest that it be deleted and replaced with the following sentence:
“If the 1st Party fails to attend to the 2nd Party or solve the problem as per defined time frame and if the 2nd Party claims it by official letter within the next _____ official days then payment will be decreased from the agreement value by Tk. 1000.00 (Taka one thousand) only per every additional hour or any part thereof after the defined time frame and will be adjusted with the next payment.”
|Clause 7||Clause 7 is not properly drafted as such please deleted it and replace it with the following:
“7. NON-DISCLOSURE UNDERTAKINGS
In execution or performance of the contractual obligations in connection with the contract for Maintenance of “W” for the 2nd Party, the 1st Party undertakes the following:
7.1 The 1st party shall treat as confidential all information obtained from the 2nd Party, and take all diligent and necessary steps to protect the same.
7.2 The 1st Party shall not utilise any of the information except for the strict purpose of execution or performance of the contract.
7.3 The 1st Party shall not divulge any of the information to any party without the explicit and prior written consent of the BANK 1.
7.4 The 1st Party shall ensure that their employees, coworkers and/or agents taking part in the contract are aware of and will undertake all provision stipulated herein.
7.5 The 1st Party shall return the information to the 2nd Party and/or any copies of the information on completion of the contract or, at any time, upon the request of the 2nd Party.
7.6 In the event of violation of any of these sub clauses, the 1st Party agrees that the 2nd Party will have the right to terminate the Agreement, and moreover the 1st Party shall be liable to compensate 2nd Party adequately for any actual damage suffered by the 2nd Party.”
|Clause 9||Please delete this clause because the terms related to termination and renewal of the agreement is already contained in Clause 6.|
|Addition of a new Clause 10.2||After Clause 10.1 we suggest the addition of a new clause which should be as follows:
“10.2 If any dispute is referred to arbitration, in spite of such referral, at the option of the 2nd Party, the 1st Party should continue to provide the services.”
|Clause 11.1||We are of the opinion that hartals, strikes and riots are normally not events of force majeure unless they continue without break for a long period of time. Please discuss this issue with service provider.|
Subject to the above, the agreement referred to us appear to be in order.
If you have any further query, please do not hesitate to contact the undersigned.
The Lawyers & Jurists
M.L.Hotel Tower Ltd, 208, Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.