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French to English: LETTER OF INTENT TO PURCHASE General field: Law/Patents Detailed field: Law: Contract(s)
Source text - French
LETTRE D'INTENTION DE COMMANDE
Entre :
BOUYGUES TELECOM
Société Anonyme au capital de 616.661.789,28 Euros, immatriculée sous le numéro unique d'identification 397 480 930 au Registre du Commerce et des Sociétés de Paris, dont le siège social est sis au 32 avenue Hoche - 75008 Paris,
A limited liability company with a capital of 616,661,789.28 Euros, whose Paris Trade Register number is 397 480 930 and whose head office is at 32 avenue Hoche - 75008 Paris,
Represented by , acting as , duly authorized for this purpose,
Hereafter referred to as "Bouygues Telecom",
ON THE ONE HAND,
And:
SAMSUNG
A company, with a capital of Euros, whose company number is on the Trade Register and whose head office is at .
Represented by , acting in his/her capacity as , duly authorised for this purpose,
Hereafter referred to as “Samsung”
ON THE OTHER HAND,
Hereafter collectively referred to as the "Parties".
PREAMBLE:
Bouygues Telecom is an operator, as declared in the sense of the provisions of Article L33-1 of the “Code des Postes et des Communications Electroniques” (French Postal and Telecommunications Law), and/or is authorized to set up and operate an electronic communications network and to supply electronic communications services.
As such, Bouygues Telecom is subject to specific legal and statutory obligations especially regarding the confidentiality of correspondence, the coverage of national territory and the protection of the environment as well as the permanent nature, accessibility and quality of the services offered to its customers.
In the framework of its activity as Internet Service Provider, Bouygues Telecom offers its various customer segments « multiplay » Internet Service Provision combined with high added value IP services.
To this end, Bouygues Telecom is currently procuring from third party suppliers, medium-sized networks and IS and notably third party (hardware and software) turnkey (IAD and STB) equipment so as to be able to offer its telephone and internet access services on IP.
In the framework of the strategic development of its activity and in order, notably, to be able to extend its ISP offers by proposing innovative service offers to its customers enabling it to stand out from its competitors, Bouygues Telecom has decided to have manufactured for its own requirements, the IAD an STB equipment which forms the essential basis for its offers (hereafter referred to as the « Equipment »).
For this purpose, on 05/08/2010, Bouygues Telecom began a consultation entitled « RFQ Hardware Produits Fixes NG » (hereafter referred to as the « Consultation ») with various market players including Samsung who is a specialized and acknowledged professional in the field of design and integration of electronic equipment.
Samsung has been informed of the requirements and restrictions expressed by Bouygues Telecom in its Consultation and has declared itself capable of ensuring the design, supply, warranty and, if necessary, the development of the Equipment in accordance with these requirements and restrictions.
Consequently, the Parties, wishing to carry out non-exclusive discussions on a workshop basis in the framework of the Consultation, concluded a Memorandum Of Understanding which took effect on 10 September 2010 (hereafter referred to as the « MOU »).
Furthermore, the Parties signed a non-disclosure agreement, also with effect from 10 September 2010, in the aim of fixing terms to protect the confidentiality of the information exchanged between them in the framework of the performance of the MOU.
Following the receipt of Samsung’s reply on 01/10/2010 and seeing the progress of the discussions undertaken in the framework of the MOU, Bouygues Telecom has selected Samsung and wishes (i) to henceforth entrust it with the design of the Equipment in the expectation (ii) of possibly concluding the negotiation of a maintenance and supply agreement by the terms of which the designed Equipment would be supplied and maintained by Samsung (hereafter referred to as the « Supply Agreement »).
In order to materialize their mutual desire to (i) start the design phase of the Equipment and (ii) to begin discussions on the Supply Agreement, the Parties have signed this letter of intent to purchase (hereafter referred to as the « LOI »).
The LOI does not place any obligation (i) for the Parties to conclude the Supply Agreement nor (ii) for Bouygues Telecom to order Equipment through the Supply Agreement, if signed, which Samsung acknowledges and accepts.
THE PARTIES HAVE HEREBY AGREED THE FOLLOWING:
Article 1 Purpose
1.1 The LOI aims to define the conditions in which:
- Samsung agrees, in the conditions defined in article 2 of the LOI, to (i) design the Equipment that Bouygues Telecom will have the option of ordering under the Supply Agreement which might be concluded between the Parties and (ii) deliver the corresponding items (especially the detailed specifications of the Equipment, the procedure for receipt of the Equipment by Bouygues Telecom and the Equipment prototypes) respecting the schedule attached in appendix to this LOI and,
- the Parties will try to work together, in the conditions defined in article 3 of the LOI, to specify the structuring elements of the project and to negotiate the Supply Agreement.
1.2 This LOI does not form, in any case whatsoever, an undertaking to conclude the Supply Agreement. At the end of this LOI, each Party remains free to not pursue the project or to not conclude the definitive Supply Agreement and in this capacity, no payment other than the one provided for in article 3 of the LOI will be owed for any reason whatsoever.
Article 2 Design of the Equipment
2.1 Samsung agrees, according to this LOI, to design Equipment based on Bouygues Telecom’s specifications attached in appendix to this LOI and to deliver the fifty (50) corresponding prototypes as well as the associated literature referred to in Appendix n°1 of this LOI. These prototypes must enable Bouygues Telecom to carry out the product software development.
For this, Samsung will prepare specific details based on the said specifications and in conformity with them.
These detailed specifications and the corresponding Equipment prototypes must be given to Bouygues Telecom within the deadline fixed in the schedule attached in Appendix of this LOI.
Samsung agrees that the Equipment is designed both in accordance with the legal statutory French, European and international standards applicable at the time of delivery and, more generally and without additional cost, with all the French, European and international standards known at the time of delivery as being likely to become applicable at least until 1 January 2012.
Above all, the Equipment must be in accordance with the French and European safety standards applicable in France in the field of electronics and electromagnetics and must not present any danger for use.
2.2 The specifications attached in Appendix to this LOI, and all the literature, technical details and other information given to Samsung by Bouygues Telecom for the requirements of carrying out this LOI, remain the exclusive property of Bouygues Telecom and may not in any case be used by Samsung for any purposes other than the strict carrying out of the LOI and the Supply Agreement if this is concluded by the Parties.
Consequently, Bouygues Telecom will notably be free to re-use the specifications with other service providers, including other manufacturers of equipment similar to the Equipment, even if they are Samsung’s competitors.
Article 3 Negotiation of the Supply Agreement
3.1 The Parties agree to negotiate the Supply Agreement in good faith, on the basis of the draft agreement attached in Appendix 1 and respecting the financial conditions laid down in Appendix 4 of this LOI. By mutual agreement, this is due to be signed on DD/MM/YYYY.
The negotiation of the Supply Agreement by the Parties will take place during joint meetings whose agendas and schedules will have previously been accepted by the Parties.
Each Party will strive to use all the internal resources and skills which will help to enrich the elements forming the project aimed at in this LOI as well as those enabling the Supply Agreement to be signed.
3.2 In all cases, the Parties are now agreed on certain contractual terms which, if the Supply Agreement is concluded between the Parties, will be taken up as they are in this Contract without either Party being able to request the renegotiation of these terms.
With regard to this, the contractual terms that the Parties have agreed are as follows:
- the Supply Agreement will contain the financial conditions laid down in Appendix n°4.
The unit price of each item of Equipment that Bouygues Telecom will have the option of acquiring in the framework of the Supply Agreement, if concluded between the Parties, may not exceed: ……………. Euros,
- the Supply Agreement will be a framework agreement which will not contain any obligation regarding sales or order volume,
- the Supply Agreement will include an undertaking by Samsung not to market the Equipment to customers other than BOUYGUES TELECOM for a minimum period of ………….. with effect from the signing of the Supply Agreement.
- The Supply Agreement will be written in French, subject to French law and will give sole competence to the Paris Commercial Court in France.
- Samsung’s main commitments in the Supply Agreement will be sanctioned by penalties and it is agreed that:
(i) the Supply Agreement will notably lay down the following late penalties applicable by BOUYGUES TELECOM in the event of Samsung’s failure to meet the deadlines contractually agreed for the qualification of the Equipment and the delivery:
1 Penalties for delays in Delivering Products or Spare Parts
In the event of failure by the Supplier to respect the deadlines laid down in the Agreement for the Delivery of Products or Spare Parts ordered by BOUYGTEL in accordance with the order process as stated in the agreement, BOUYGTEL reserves the possibility, notwithstanding the right to demand compensation for its total loss, of applying to the Supplier, without prior formal notice, late penalties fixed at half a percent (0.5%) of the total amount of Products or Spare Parts delayed per working day for a delay in excess of three (3) working days;
2 Penalties for late Qualification
If BOUYGUES TELECOM is not able, because of Samsung, to issue the Qualification Certificate for the initial samples of the products on the contractually agreed date, BOUYGUES TELECOM reserves the right to apply to Samsung, without further consideration or prior formal notice, late penalties fixed as follows:
- 10 000 Euros per late day from the 2nd to the 7th day inclusive,
- 20 000 Euros per late day from the 8th to the 14th day inclusive,
- 30 000 Euros per late day from the 15th to the 21st day inclusive,
- 40 000 Euros per late day with effect from the 22nd day,
(ii) No penalties provided for in the Supply Agreement may be considered as the fixed and final compensation of a loss caused to BOUYGUES TELECOM:
- The Supply Agreement will contain a infringement warranty clause by the terms of which Samsung will assume liability and/or will compensate BOUYGUES TELECOM, without a maximum amount for any loss resulting from any third party claim based on the fact that the products and deliverable items supplied by Samsung under the Supply Agreement form a breach of the intellectual property rights (patents or copyrights) or any other rights belonging to a third party :
- The Supply Agreement will contain a liability clause written as follows:
1 – General principles of liability
Each Party is liable to the other, for the performance of the obligations falling to it by virtue of the Agreement and consequently agrees to compensate (within the limits of 2 below) any direct loss caused to the other Party, resulting from the failure to perform or the inadequate performance of the said obligations.
However, it is expressly agreed that BOUYGUES TELECOM’s liability would not be committed due to the use made of the Products by its customers.
2 – Upper limits of liability
2.1 - Principle
The total and cumulated liability, for all combined causes, whatever the grounds of the liability claim (subject to the provisions of 2.3 below), and whatever the number of claims made, that a Party is likely to incur due to all the direct damages caused to the other Party in the framework of the Agreement may not exceed twenty million Euros per calendar year.
Samsung’s liability is limited to the compensation of direct losses with the exception of indirect losses.
2.3 - Exceptions
The Upper limits referred to in 2.1 above are not applicable:
1) to the infringement warranty given by Samsung in the Agreement ; and
2) for the following damages resulting from a shortcoming by Samsun:
• logistics costs related to the recall of products (in particular advertising campaign costs, costs of advertising in professional revues, storage and transport costs)
• costs related to the replacement of products.
3.3 If (i) the Supply Agreement has not been signed on the final date defined in paragraph 3.1 or (ii) Bouygues Telecom ended the discussions according to the conditions of the article (Duration) of this LOI:
- This LOI will become legally null and void and Bouygues Telecom will be free to conclude a contract concerning a similar project to the project that is the purpose of this LOI with any third party of its choice,
- Bouygues Telecom will make Samsung, within a period of XX days following the termination of this LOI, a fixed payment in full discharge of XX Euros.
This payment is fixed and final and exclusive of any other compensation or remuneration owed by Bouygues Telecom in exchange for the actions carried out and the services provided by Samsung in the framework of the performance of the LOI (and notably the design of the Equipment) and includes all costs, expenses, and obligations of all kinds related to the stopping of the LOI. No other sums, damages, or compensation of any kind may be claimed by Samsung from Bouygues Telecom.
On the other hand, if the Supply Agreement was concluded between the Parties, Samsung will not receive any payment for the carrying out of this LOI.
Article 4 Duration
4.1 This LOI begins with effect from the date of signature by the Parties and will end on DD/MM/YYYY. (Delivery date for 50 prototypes)
This LOI will fully replace, from the date it takes effect, the MOU referred to in the preamble of this LOI. Consequently, the latter will be automatically and legally cancelled on this date.
4.2 However, Bouygues Telecom, without making any payment other than the one provided for in article 3 (Negotiation of the Supply Agreement) of this LOI, and without having to justify itself regarding this, may abandon the project referred to in this LOI at any moment and without prior notice for the duration of the LOI, without this LOI creating any obligation to contract.
Article 5 Exclusivity
For the duration of this LOI, each Party agrees not to conclude a contract relating to a similar project to the project that is the purpose of this LOI, either directly or indirectly, with a company that is a competitor of the other company.
Article 6 Confidentiality
The confidentiality of the information provided by either Party to the other Party in the framework of the performance of the LOI will be governed by the terms and conditions of the non-disclosure agreement (« NDA ») signed between the Parties on 10 September 2010 referred to in the preamble of this document.
Article 7 Jurisdiction
This LOI is governed by French law.
ANY DISPUTES ARISING BETWEEN THE PARTIES REGARDING THIS LOI WILL BE SUBMITTED TO THE COMPETENT PARIS COURTS.
Article 8 List of documents
This LOI consists:
1) of this document,
2) of the following appendices:
Appendix n°1 Draft Agreement
Appendix n°2 Specifications
Appendix n°3 Schedule
Appendix n°4 Sales conditions of the Supply Agreement
Date: Date:
Bouygues Telecom Samsung
French to English: INVESTMENT MARKETS General field: Bus/Financial Detailed field: Finance (general)
Source text - French Le marché mondial de l'investissement
L'internationalisation du marché se poursuit
Les transactions sur le marché international de l’immobilier d’entreprise ont atteint le montant record de 600 milliards de dollars en 2006, alors que les prévisions pour 2007 devraient être encore supérieures.
Dans un marché caractérisé par un surplus de capitaux, le ratio d’intention d’investir est actuellement de l'ordre de 4 dollars pour 1 dollar réellement investi. On peut ainsi évaluer le montant des capacités d’investissement au niveau mondial à 2 400 milliards de dollars.
Cependant, la croissance des capacités d'investissements se heurte aux limites du marché en termes d'actifs : ainsi, si près d’un tiers des investissements prévus n’avaient pu se concrétiser en 2005, cette proportion est passée à la moitié en 2006.
L’une des caractéristiques majeures des investissements en immobilier d’entreprise est le phénomène continu de la mondialisation du marché. Aujourd’hui, l’activité internationale représente environ 40 % des investissements, contre 30 % en 2005.
L’abondance des capitaux a continué d’entraîner une compression des rendements sur les principaux marchés.
Cependant, la remontée probable des taux d’intérêt à l’échelle mondiale pour le second semestre 2007 pourrait stopper cette compression voire renverser la tendance.
Le marché de l'investissement en Europe
Intensification des investissements cross-borders
Au cours du 1er semestre 2007, plus de 102 milliards d'euros ont été investis en Europe, soit une tendance meilleure qu'en 2006 (190 milliards).
Le marché européen des bureaux est entré résolument dans une période d’expansion après un début lent en 2006.
L’amélioration du contexte économique et du marché de l’emploi conduisent à penser que l’augmentation des valeurs locatives devrait être plus intense et se généraliser en 2007. Cependant, de grandes disparités perdurent à travers l’Europe et plusieurs pays ne profiteront pas de cette bonne dynamique.
- Le Royaume-Uni a accueilli 38% du montant investi en Europe au 1er semestre 2007.
Viennent ensuite l’Allemagne et la France, avec respectivement 20 et 13%.
- Plus de la moitié des investissements réalisés en Europe sont le fruit d’investisseurs européens.
- Les engagements effectués par des institutionnels représentent 22% des investissements européens.
- Avec 47% du montant, le bureau reste le type d’actif privilégié. Viennent ensuite le commerce (19%) et les locaux mixtes (17%).
L’internationalisation du marché de l’investissement, amplement mise en évidence en France, se retrouve dans la plupart des pays étudiés :
l’investissement domestique ne représente plus que 40 à 50 % des montants investis, avec des proportions très basses dans les marchés émergents de l’Europe de l’Est (par exemple République Tchèque et Pologne, respectivement 8 et 6%).
A l’export, les investisseurs européens les plus actifs auront été les anglo-saxons, présents dans la quasi totalité des pays.
A l'origine de 17% des engagements, les investisseurs américains auront privilégié les marchés allemand et anglais, avec respectivement 7 et 5,5 milliards d'euros.
Translation - English The global investment market
Internationalisation of the market continues
Transactions on the international business property market reached the record sum of
600 billion dollars in 2006, while forecasts for 2007 should be even higher.
In a market characterised by surplus equity, the ratio of planned investment to actual investment is about 4 dollars to 1 dollar. The amount of investment capabilities on a global level can therefore be assessed at 2 400 billion dollars.
However, the growth in investment capabilities comes up against market limitations in asset terms so, while in 2005, nearly a third of planned investments were not made, this proportion increased to half in 2006.
One of the major characteristics of corporate real estate investment is the continued phenomenon of market globalisation. Today, international activity represents approximately 40 % of investments, compared with 30 % in 2005.
The abundance of equity has continued to lead to a compression of returns on the leading markets.
However, the probable recovery in interest rates on a global scale in the second half of 2007 could stop this compression or even reverse the trend.
The investment market in Europe
Intensifying of cross-border investments
During the first half of 2007, over 102 billion Euros were invested in Europe, a better trend than in 2006 (190 billion).
The European market for office space decisively entered a period of growth after a slow start in 2006.
The improvement in the economic context and in the job market implies that the increase in rental values should be more intense and more widespread in 2007. However, great disparities persist throughout Europe and several countries will not profit from this positive development.
- The United Kingdom received 38% of the amount invested in Europe in the first half of 2007
followed by Germany and France with 20 % and 13% respectively.
- More than half the investments in Europe are made by European investors.
- Commitments made by financial institutions represent 22% of European investments.
- Office space, with 47%, remains the preferred asset type, followed by commercial properties (19%) and mixed-use developments (17%).
The internationalisation of the investment market, amply demonstrated in France, is the same in most countries examined:
Domestic investment only now represents 40 to 50 % of sums invested, with very low proportions in the emerging East European markets (for example the Czech Republic and Poland, respectively 8% and 6%).
At export, the most active European investors have been the English-speaking countries, present nearly everywhere.
Behind 17% of the commitments, American investors favoured the German and English markets, with respectively 7 et 5.5 billion Euros.
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Years of experience: 35. Registered at ProZ.com: Jun 2010.
French to English (Chartered Institute of Linguists) French to English (UNITED KINGDOM, UNIVERSITY OF READING, B.A. HONS D) French to English (DIP. TRANS. IOL, FRENCH - ENGLISH)
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