ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT
CALL FOR TENDER FOR THE FULFILMENT, DISTRIBUTION AND CUSTOMER SERVICES
OECD/ICT/EXD/PCM/PAC/PUB/04/172 Closing date: 13th December 2004 - 11h00 Paris time
D GENERAL CONDITIONS OF THE CONTRACT
ARTICLE 1 Term of the Contract ARTICLE 2 Obligations of the Contractor throughout the term ARTICLE 3 General rights and duties of the Contractor and the Organisation ARTICLE 4 Charges ARTICLE 5 Payments ARTICLE 6 Liabilities ARTICLE 7 Intellectual Property ARTICLE 8 Confidentiality ARTICLE 9 Termination ARTICLE 10 Expiry or Termination Consequences ARTICLE 11 Notices ARTICLE 12 Assignment ARTICLE 13 Status ARTICLE 14 Severability ARTICLE 15 Arbitration ARTICLE 16 Waiver ARTICLE 17 Force Majeure RUBAC Electronic Information Management Methodology Copyright of Hamme Family Trust ARTICLE 1 TERM OF THE CONTRACT 1.1 The start date of the contract should be the 1st January 2006. 1.2 Unless previously terminated the term of the contract shall be for a period of five (5) years, with the possibility to two (2) one-year renewals. The contract shall be automatically renewed at the expiry date and each anniversary thereof with a rolling annual renewal unless either party gives notice of termination in writing not less than eight (8) months prior to the expiry date or the next anniversary thereof if automatic renewal has occurred. ARTICLE 2 OBLIGATIONS OF THE CONTRACTOR THROUGHOUT THE TERM 2.1 The Contractor shall promptly and diligently provide the services and others services in respect of the publications and online services. 2.2 The Contractor shall use all reasonable endeavours to provide promptly any reasonable variation to the services as may reasonably be requested by the Organisation and agreed in writing between the Organisation's Contract Manager and the Contractor's Contract Manager. 2.3 The Contractor shall be responsible for obtaining all licences, permits and approvals which are necessary or advisable for the physical dispatch of the publications throughout the world and for the performance of its duties hereunder. 2.4 The Contractor is not allowed to pass customer data to any third party nor use this information for any promotional or marketing purposes except with prior written authorisation from the Organisation. 2.5 The Contractor shall not pledge the credit of the Organisation in neither way nor bind or purport to bind the Organisation to any contract, incurring any liability on the Organisation's behalf or holding itself out as acting on behalf of the Organisation in any capacity other than the ones expressly permitted by the Organisation. 2.6 The Contractor shall not make any modification to the publications or their covers nor (without prejudice to the generality of the foregoing) alter, remove or tamper with the trademarks or other means of identification on the publications. 2.7 The Contractor shall not make any guarantees or representations regarding the publications without prior express written authorisation of the Organisation. 2.8 The Contractor shall permit the Organisation and any of its authorised representatives to have access to the Contractor's premises and all relevant documents and records and stock that they may wish to examine during normal working hours on working days upon the Organisation having given the Contractor forty-eight (48) hours prior notice in writing. 2.9 The Contractor shall be required to observe the compulsory and other standards of industrial safety applicable in the jurisdiction in which it operates. ARTICLE 3 GENERAL RIGHTS AND DUTIES OF THE CONTRACTOR AND THE ORGANISATION 3.1 Both parties to the Contract shall comply with all applicable rules, laws and regulations relating to the sale of the publications throughout the world and shall exchange information of any changes of which they are aware of. 3.2 The Contractor undertakes to ensure that it is registered under a Data Protection Act either as a 'data user' or as a 'computer bureau' and that such registration is sufficient to permit it to use and transfer the data as described therein. 3.3 Notwithstanding the provisions of paragraph 8 below, all information relating to Customers who purchase Publications is and shall remain the property of the Organisation. The Contractor will maintain the security and confidentiality of this information. ARTICLE 4 CHARGES 4.1 In consideration of the Services provided by the Contractor the Organisation will pay the fees as agreed upon. 4.2 The Annual Service Fee will be fixed for the period of three years starting from the commencement date 1st January 2006 with the exceptions: 1 Of a yearly revision in the light of the Organisation' s online sales revenue invoiced by the Contractor, given that the parties both recognise that online sales, which do not require physical dispatch of printed publications or other hardcover publications, involve less costs to the Contractor; 2 Of a yearly revision linked to the inflation rate of the contractor's home country; 3 Of a revision, if the business volumes exceeds a hundred twenty per cent (120%) of the previous year; 4 Of a revision, if the business structure has changed significantly compared to the Basic Information and Technical and Service Specifications. Any changes need mutual agreement between the parties and in the event that any changes to the Annual Service Fee are agreed upon, the changes will be enacted by a written amendment to the Contract, signed by the duly authorized representatives of both parties. ARTICLE 5 PAYMENTS 5.1 The invoices are payable within thirty (30) days of receipt. 5.2 Within fifteen (15) working days after the end of each month the Contractor shall submit invoices and the supporting documentation to the Organisation in respect of the Contractor's postage and packing material costs and carriage charges. The Contractor shall bill the Organisation at cost, that is, an amount equivalent to the actual net amount billed to the Contractor by outside entities provided such postage and packaging supplies and services, inclusive of any discounts, rebates or other cost reductions. Regarding supporting documentation, the Contractor shall provide the justification for the cost incurred, consisting of invoices from its suppliers where a link can be established between the cost incurred and the invoices and/or delivery notes of the publications of the Organisation. The Organisation will fund an Imprest Account operated by the Contractor at the commencement of the contract equivalent to ten (10) weeks estimated postage, packing materials and carriage costs. This amount shall be adjusted according to business flows and confirmed by an exchange of letters. The Contractor, upon rendering its monthly invoice for such costs, shall deduct any sum so invoiced from the Imprest Account. The Organisation's payments of each invoice will go directly onto the Imprest account. The Contractor hereby confirms that the funds in the Imprest Account will be used for no purpose other than those set forth in this paragraph. The Contractor agrees to send copies of all bank statements reflecting activity in the Imprest Account to the Organisation, together with the invoices for postages/packing/carriage charges. Any interest accrued on the funds in the Imprest Account belongs to the Organisation. In addition in the event of Contract termination by either party, and upon satisfactory payment of all outstanding postage and packaging invoices, the Contractor shall refund to the Organisation all remaining funds in the Imprest Account. ARTICLE 6 LIABILITIES 6.1 The Contractor shall not be required to provide any Services or Others Services in relation to any of the publications which in its reasonable opinion is or may be illegal, pornographic, obscene, defamatory or offensive nature or which may infringe the rights of any party. After consultation with the Organisation and immediately upon notification from the Contractor the Organisation shall at its cost arrange for the removal of any such publications from the Contractor's warehouses and shall indemnify and keep indemnified the Contractor against any and all reasonable losses, claims, costs, demands, expenses and liabilities arising there from. The Organisation shall make such announcements as are necessary for the Contractor to absolve itself from responsibility for any such publications so as to maintain the goodwill and reputation of the Contractor. 6.2 The Contractor accepts liability and undertakes to indemnify the Organisation for any and all reasonable costs, claims, damages, liabilities, losses, expenses and damages incurred by the Organisation, its representatives, agents, employees, directors, sub-contractors and assigns due to any negligence, breach or wilful or reckless default of the Contractor of its obligations under the Contract. The Contractor shall hold the Organisation harmless in respect of all legal or extrajudicial claims, outlays, expenses and other liability resulting from damage caused to third parties due to any negligence, breach or wilful or reckless default of the Contractor of its obligations under the Contract. 6.3 The Contractor shall use customer data only as specified under the terms of the Contract and in accordance with Data Protection Act(s) of the Contractor's home country and any successor or corresponding legislation and shall indemnify and keep indemnified the Organisation against any and all reasonable losses, claims, costs, demands, expenses and liabilities arising from any misuse of these data by the Contractor. 6.4 With regard to liability for damage to or loss of stock the Contractor accepts the risk of any loss or damage to stock held at its premises. ARTICLE 7 INTELLECTUAL PROPERTY 7.1 Nothing in the Contract shall give the Contractor any rights in respect of any trade marks or trade names used by the Organisation in relation to the Publications or any other intellectual property vested in the Publications or of the goodwill associated therewith and the Contractor hereby acknowledges that except as expressly provided in the Contract it shall not acquire any rights in respect thereof and that all such rights and goodwill are and shall remain vested in the Organisation. 7.2 The Contractor shall not use the Organisation's name, trade marks or trade names except as expressly permitted under the Contract. The Contractor shall not use any trade marks or trade names so resembling the trade marks or trade names of the Organisation as to be likely to cause confusion or deception. The Organisation grants permission to the Contractor to include, after written agreement by the Organisation, to his marketing material and his web-site that the OECD is a customer of the Contractor. 7.3 No goodwill arising from the Organisation's trade marks or trade names will accrue to the Contractor, and the Contractor accordingly waives all right and interest in such good will. 7.4 The Contractor undertakes to notify the Organisation promptly if it becomes aware of: 1 Any infringement or alleged infringement of the Organisation's intellectual property in the Publications anywhere in the world; or 2 Any allegation by any third party that the use and exploitation of such intellectual property infringes any intellectual property rights of any such third party in any part of the world; and 3 subsequently supply to the Organisation such detailed information concerning any such infringement, alleged infringement or third party allegation as may be available to the Contractor and extend such co-operation as the Organisation shall reasonable request in countering such infringement, alleged infringement or third party allegation. The Organisation will reimburse the Contractor for any reasonable costs that the Contractor may incur. ARTICLE 8 CONFIDENTIALITY 8.1 Except as provided below each party shall at all time during the continuance of the Contract and after its termination howsoever caused: 1 Not disclose any Restricted Information for any purpose other than in performance of its obligations under the Contract. 2 Not use any Restricted Information for any purpose other than in performance of its obligations under the Contract 8.2 Restricted Information may be disclosed by either party to: 1 Any customers or prospective customers and their respective employees subject to the written consent of the other party; or 2 Any authorised Government or regulatory body or their respective employees; or 3 Employees of either party to such an extent only as is necessary for the purposes contemplated by the Contract or as is required by law or a court of competent jurisdiction and subject in each case to the disclosing party using all reasonable endeavours to ensure that the person to whom the Restricted Information is disclosed keeps the same confidential and does not use the same except for the purposes for which the disclosure is made. 8.3 Any Restricted Information may be used by either party for any purpose or disclosed by either party to any other person to the extent only that: 1 It is at the date hereof or hereafter becomes public knowledge through no fault of the disclosing party (provided that in doing so that party shall not disclose any Restricted information which is not public knowledge); or 2 It can be shown by the disclosing party to the reasonable satisfaction of the other to have been known to the party to whom it is disclosed prior to it being disclosed. ARTICLE 9 TERMINATION 9.1 Without prejudice to any other provisions contained in the contract and any other rights such party serving notice may have, either party may forthwith terminate the contract within a three (3) months period by written notice to the other if any of the following events shall occur: 1 If the other party commits any material breach of the terms or conditions of the contract including the terms, conditions and provisions of any schedule and fails to remedy such breach (or insofar as such breach is not capable of remedy to furnish adequate compensation therefore) within thirty (30) days after receiving written notice from the first party requiring it do so. 2 If either party passes a resolution, or the Court makes an order, that either party be wound up otherwise than for the purpose of bona fide reconstruction or amalgamation, or a receiver, manager or administrator on behalf of a creditor is appointed in respect of either party's business or any part thereof, or circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the Court, otherwise than for the purpose of bona fide reconstruction or amalgamation, to make a winding up order or either party is unable to pay its debts. 3 If the Contractor comes under the control of any third party other than that by which it is controlled at the Commencement Date of the Contract. For purposes of this provision, "control" shall mean the ownership of more than fifty per cent (50%) of the ordinary share capital carrying the right to vote at general meetings or the power to nominate a majority of the board of directors. 9.2 The Organisation shall also have the right to terminate the contract in the absence of the circumstances specified in paragraph 8.9.1 above, upon eight (8) months' notice at any point during the contract term. 9.3 The expiry or termination of the contract shall be without prejudice to the rights of the parties accrued up to the time of such expiry or termination. ARTICLE 10 EXPIRY OR TERMINATION CONSEQUENCES 10.1 The Contractor shall within thirty (30) days of the date of expiry or termination of the contract send the stock then in the possession of the Contractor to another location specified by the Organisation. 10.2 New orders received by the Contractor after the date of expiry or termination of the contract shall be forwarded in accordance with directions given to the Contractor in writing by the Organisation. Orders received by the Contractor prior to the date of expiry or termination of the contract in respect of which the Contractor has commenced processing will be processed by the Contractor in accordance with the contract. Orders received by the Contractor prior to the date of expiry or termination of the contract in respect of which the Contractor has not commenced processing will be subject to the directions given by the Organisation. 10.3 For a period of ninety (90) days following the date of expiry or termination of the contract the Contractor shall accept and credit authorised returns of publications from all Customers. Thereafter the Contractor shall no longer accept or credit returns but shall return such publications to each customer who has sent them to the Contractor with directions (if known) as to the proper entity designated by the Organisation to accept returns of the publications or to the Organisation or proper entity designated by the Organisation, as may be agreed. 10.4 Within thirty (30) days of the date of expiry or termination, each party shall return to the other any Restricted Information and any copies thereof in its possession, custody or power in whatever format it may be held. 10.5 At the expiry or termination of the contract, the Contractor shall transfer computer records (address files, customer files, product files, accounts files, sales and inventory files) and all paper records and electronic records relative to all activities to the Organisation and the entire stock held by him on behalf of the Organisation to a location designated by the Organisation in a form that can be normally exploitable by the Organisation or another Company. The Organisation is the exclusive owner of all supporting documents, either in paper or in electronic format. 10.6 In case of termination of the contract by the Organisation before the expiry date as a consequence of proven and repetitive unsatisfactory performance, or as a consequence of any other material breach of the terms and conditions of the contract by the Contractor, all expenses in respect to this termination shall be borne by the Contractor. As far as the costs of transfer of stocks are concerned, these costs will be limited to the costs of transferring stocks from the Contractor premises to a location designated by the Organisation in a form that can be normally exploitable by the Organisation or another Company. 10.7 In case of termination of the contract by the Contractor before the expiry date because of errors in price quotations or in case the Contractor is no longer capable to perform the tasks under the contract or in case the Contractor ceases his activity or in case the Contractor moves to a different location more than a hundred kilometres (100 km) from the present location that is unacceptable for the Organisation, all expenses in respect to the cancellation shall be borne by the Contractor. 10.8 The Organisation shall within thirty (30) days of the date of expiry or termination of the Contract pay to the Contractor all monies due to it under the terms of the contract. 10.9 The Contractor shall within thirty (30) days of the date of expiry or termination of the Contract return all funds in the Imprest Account to the Organisation. ARTICLE 11 NOTICES 11.1 Any notice or other communication given by either party to the other shall have been deemed to have been duly given or made if delivered personally or sent by registered post or fax transmission to the address of the relevant party as specified herein (or such address as the party may notify from time to time for this purpose). Nay such notice or communications shall be deemed to have been received when delivered by hand or on the second day after posting by first class letter post or when the proper fax back message is received by the sender as appropriate. ARTICLE 12 ASSIGNMENT 12.1 Neither party shall assign or otherwise dispose of the benefit or obligations of the contract except with the prior written consent of the other party, such consent not to be unreasonably withheld and to be given in a timely manner. ARTICLE 13 STATUS 13.1 Nothing in the contract shall create or be deemed to create a partnership or the relationship of employer and employee between the parties. 13.2 The Contractor and his experts, employees, agents or representatives: 1 Shall not in any capacity be deemed to be members of the staff, or employees of representatives of the Organisation; 2 Shall have no power to commit the Organisation in respect of any expenditure whatsoever; 3 Shall have no claim to any advantage, payment, reimbursement or services not stipulated in the Contract. ARTICLE 14 SEVERABILITY 14.1 If any provision of the Contract is held by any competent authority to be void, voidable, illegal or otherwise unenforceable in whole or in part the parties shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or, provided both parties then agree, the provision may be severed from the Contract which shall continue to be valid as to the other provisions thereof. ARTICLE 15 ARBITRATION 15.1 Any dispute arising out of the interpretation of the contract, which cannot be settled by mutual contract, shall be referred for decision to an arbitrator chosen by contract between the Organisation and the Contractor. 15.2 If the parties fail to reach a contract on the appointment of an arbitrator within three months after the request for arbitration by one of the parties, the dispute shall be referred for decision to a Board of three arbitrators composed of an arbitrator appointed by each of the parties and a Chairman appointed by these two arbitrators. 15.3 If one of the arbitrators or the Chairman is not appointed within six months after the request for arbitration, the arbitrator and the Chairman shall be appointed by the First President of the Court of Appeal of Paris at the request of either Party. 15.4 The decision of the arbitrator or the Board of arbitrators shall be final and not subject to appeal. ARTICLE 16 WAIVER 16.1 The failure by either party to enforce at any time or for any period any one or more of the terms and conditions of the contract shall not be a waiver of them or of the rights at any time subsequent to enforce all terms and conditions of the contract. ARTICLE 17 FORCE MAJEURE 17.1 Neither party shall be liable to the other in anyway whatsoever for failure, interruption, delay or any other matters of the nature whatsoever arising out of any happening beyond its reasonable control including war, rebellion, civil commotion, strikes unless the Contractor's, lock-outs and industrial disputes, fire, explosion, earthquake, flood, drought, or extreme weather conditions. 17.2 In case of any event arising the party affected by it shall notify the other party of the nature of the Force Majeure and the extent it is affected thereby and the parties shall enter into bona fide discussions and shall use all reasonable endeavours to alleviate its effects or to agree upon such alternative arrangements as may be fair and reasonable. 17.3 In the event that alternative arrangement cannot be agreed upon and any circumstances covered by this clause cannot be alleviated, rectified or remedied or if such circumstances continue for a period of two (2) months or more either party may at its option terminate the contract forthwith and without liability for such termination. Read and approved: In: Done on: Signature by a person having authority to conclude:






















Revised: S: 20:03 Sat 2004/11/06 Syd 2089
F: 20:34 Sat 2004/11/06 Syd 2089
Who: sgg
Authorised: sgg
Created: 09:45 Tue 13/06/2000 Syd 2065
By: kmb
Revision: 3a4h1.002
Original Page: 3a4h
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