Dated: September 17, 2007
Manager, Information Technology
Dhaka Main Office
1/1-B Sonargaon Road
Dhaka – 1205.
RE: Legal Opinion regarding Maintenance Agreement for Optical fiber link.
We refer to your letter dated 06 September 2007 on the above subject.
We have perused the draft Maintenance Agreement for Optical fiber link (“the Agreement”) to be executed between Bank 1 (“BANK 1”) and Company 1 (“Alap”).
Our opinion on the 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 Sep, 2007”.|
|Clause 5.1.1||In the second paragraph of Clause 5.1.1, please delete any reference to “Client” and “CUSTOMER” and replace them with “BANK 1”. Also delete any reference to “Alap” and replace them with “Company 1”.
Please note that, according to the second paragraph of this clause, HBSC will not be entitled to charge Alap penalty for service interruption if it occurred from the reasons contained therein. Please check whether BANK 1 agrees to such restriction in imposing penalties.
|Clause 6,2||In this clause reference has been made to the duties and responsibilities of BANK 1 as mentioned in appendix 01. However, upon perusal of appendix 01 we were unable to find any such duties and responsibilities of BANK 1 listed there. Please check the matter.|
|Clause 6.3||In the fourth line of the second paragraph of Clause 6.3, we suggest you to delete “withdrawal” and replace it with “withdraw”.|
|Clause 9.4||In the first line of Clause 9.4, please delete “my” and replace it with “its”.|
|Clauses 11.1 and 15||Please note that, according to Clause 14, the Agreement shall be governed by the laws of Bangladesh and any suits, actions or claims in relation thereto shall be filed exclusively in the proper courts of Dhaka City. On the other hand in Clause 11.1 it is stated that any disputes and difference arising out of the Agreement shall be settled by arbitration. Therefore, according to Clause 15 and 11.1, the parties can go to the courts of Dhaka City or refer to Arbitration; this is not legally possible. We draw your attention to Section 7 of Arbitration Act 2001, according to which, where any of the parties to an arbitration agreement files a legal proceedings to a Court against the other party, no judicial authority shall hear any legal proceedings before completion of the arbitration proceeding.
Therefore, the parties should select any one forum for the resolution of dispute not both. We are of the opinion that arbitration should be selected. Therefore we suggest you to delete Clause 15 and replace it with the following:
“14. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Bangladesh.”
|Addition of a new Clause 11.3||After Clause 11.3 we suggest the addition of a new clause which should be as follows:
“11.3 If any dispute is referred to arbitration, in spite of such referral, at the option of BANK 1, Company 1 should continue to provide the services under this Agreement.”
|Clause 13.3||We are of the opinion that hartals and strikes 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.|
|Clause 14.4||According to this clause warranty to be given by Alap will be void, inter alia, for failure of BANK 1 to maintain dust and damp free environment at BANK 1’s premises. How shall it be determined whether BANK 1’s premises have been maintained dust free or not? Who shall decide this? Please check whether BANK 1 agrees to this restriction.|
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.
All documents/papers referred to us are returned herewith.
The Lawyers & Jurists
M.L.Hotel Tower Ltd, 208, Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.