INTERNATIONAL
TURNKEY
CONTRACT
INTERNATIONAL TURNKEY CONTRACT
GENERAL CONDITIONS
Clause l-Dcfniunn, and Interpretation
A 4-1
1.1 In the Contract (as hereinafter defined) the following word. and expressions shall have the meanings hereby assigned to them, except where the context otherwise requires:
(i) “Design” means the design for the Works,
(ii) “Conceptual Design” is the Owner’s subrnission in writing or other recorded material to the Contractor upon which the Dcsign Elements (Tender Design) is based.
(iii) “Design Elements” (Tender Design) is the outline design for the Works submitted to the Owner by the Contractor in response to the Conceptual Design prior to the Contract and acceptcd by the parries as the design to be developed for the Works .
(iv) “Preliminary Design” means the Design prepared by the Contractor which after approval by the Owner will form the basis of the Final Design .
(v) “Final Design” means the fully detailed Design prepared by the Contractor.
(vi) “Approved Design” means the Fimal Design prepared by the Contractor and approved by the Owner.
(vii) “Contract Price” means the sum specified in the Contract or otherwise ascertainable pursuant to the provisions of this Contract as payable by the Owner to the Contractor tor the completion of the Works and the remedying of any defects therein in accordance with the provisions of the Contract subject to such additions and adjustments thereto and deductions therefrom as may be made pursuant to the provisions of the Contract.
(viii) “Commencement Date” means the date upon which the Design and excution of Works under the Contract arc to commence.
(ix) “Contract” means the Contract Agreement and all documents incorporutcd therein.
(x) “Contract Agreement” means the agreement incorporating these Conditions for the Design and the Works entered into hy the Owner and the Contractor.
(xi) “Contractor” means the entity identified as such in the Appendix.
(xii) “Contractor’s Equipment” means all appliances and things of whatsover nature required for the execution and completion of the Works and the remedying of any defects therein, but docs not include Plant, materials or other things intended to form or forming part of the Works.
(xiii) “Contractor’s Representative” means the person appointed by the Contractor to act as Contractor’s Representative for the purposes of the Contract.
(xiv) “Day” means calendar Day.
(xv) “Defects Liability Period” shall mean the Defects Liahility Period agreed by the parties hereto but otherwise 12 (twelve) months calculated from the date of completion as certified in the Taking Over Ccrrilicatc.
(xvi) “Drawings” means all Drawings, provided by the Contractor under the Contract.
(xvii) “Owner” means the entity identified as such in the Appendix hereto.
(xviii) “Owner’s representative” means the person appointed by the Owner to act as the Owner’s Representative for the purposes of the Contract.
(xix) “Plant” means machinery, apparatus and the like intended to form of limning part of the Works.
(xx) “Site” means the places provided by the Owner where the Works are to he executed and any other places as may be specifically designated in the Contract as forming part of the Site.
(xxi) “Tests on Completion” means the test specified in the Contract or which arc to he made by the Contractor he fore the issue of the Taking Over Certificate.
(xxiii) ”Time for Completion’ means the time for completing the execution of the Works up to the issue of the Taking Over Cenificate from the Commencement Date of the time otherwise fixed pursuant to the Contract and such extended time (if any) as provided for pursuant to the provisions of the Contract.
(xxiv) “Variation” has the meaning ascribed to it pursuant to Clause 11.
(xxv) “Works” means the Permanent Works and the Temporary Works or either of them as appropriate.
1.2 The Appendix hereto forms part of these Conditions and shall be read and construed accordingly.
1.3 The headings and marginal notes in these Conditions shall not be deemed part thereof or be taken into consideration in the interpretation or construction thcrof or of the Contract.
1.4 Words importing persons or parties shall include firms and corporations and any organisation having legal capacity.
1.5. The Contract Documents are those listed in the Contract Agreement. They are considered to be mutually complementary. In case of discrepancies the priority shall be in conformity with any order of priority agreed between the parties.
1.6 Measurements which are given in figures or words and which are not obviously incorrect shall take precedence over scaled measurements.
1.7 The Contract constitutes the entire agreement between the Owner and the Contractor with respect to the subject matter of the Contract and supersedes all communications, negotiations and agreements (whether written or oral) of the parties with respect thereto made prior to the date of the Agreement.
1.8 No amendment or other modification of the Contract shall be effective unless it is in writing is dated, expressly refers to the Contract. and is signed by a duly authorised representative of each party hereto.
1.9 If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable such prohibition, invalidity or uncnforccahilitv shall not affect the other provisions of the Contract. 1.10 Words importing the singular only also include the plural and vice versa where the context requires.
1.11 Wherever in the Contract provision is made for the glVlllg or issue or any notice, approval, certificate or determination, unless otherwise specified such notice, approval, certificate or dctcrmin.uion shall be in writing and the words “notify”, “certify” or “determine” shall be construed accordingly. Any such approval, certificate or determination shall not unreasonably be withheld or delayed.
Clause 2-Scope of Services alit! Works
A4-2
2.1 The Contractor shall perform all works and services required for the Design, procurement, construction and completion of the Works in accordance with the Contract except for those works and services which will he provided or performed by the Owner.
Clause 3-0wner’s Principal Obligatiofls in Relation to the Design and Execution of the Works
A4-3
3.1 Unless expressly otherwise agreed in the Contract as regards the choice of the Site the Owner shall be responsible for such choice and he shall deliver the Site to the Contractor free from encumbrances and provide access to the Site upon the date fixed or provided I(Jr in the Contract and including provision of facilities as required in the Contract for the period of the Contract .
3.2 The Owner is responsible for the specifications and definitions set out in the Conceptual Design. The Owner shall transmit to the Contractor the information and data required from him under the Contract in due time in order to enable the Contractor to carry out the Contracl in accordance with the programme. The Owner shall be responsible for such information and data, in particular for its accuracy.
3.3 The Owner shall consider proposals for the preliminary Design submitted by the Contractor pursuant to Clause 4.2 hereof with a view to approwing the same (as the same may be modified) within the time stated in the Appendix hereto from submission by the Contractor. Upon approval the design shall be the approved Preliminary Design, on the basis of which the Contractor shall prepare the Final Design.
3.4 The Owner shal also review the Final Design submitted by the Contractor pursuant to Clause 4.2 hereof and shall approve the same within the time stated in the Appendix. Upon approval (whether or not with any disclaimer by the Contractor as referred to in Clause 4.2) the Final Dosing shall then he the Approved Design.
3.5 The consequences of any Vaiation in the Preliminary Design or the Final Dcsing requested by the Owner shall he dealt with in accordance with the provisions of Clause 9 and 11 respectively.
3.6 Any permits, approvals and/or licences, which must be obraincd by the Owner in his name pursuant to the laws and the regulations applicable to the Design and the Works, shall be obtained by the Owner at his own expense. The Owner shall at his own expense obtain all planning, zoning or other similar permission required for the Design and the Works. All such permits, approvalls, licences and/or permission shall be obtained by the Owner within such lime as to allow the Contractor to proceed in accordance with the programmc of the Works.
3.7 Where approvals arc required or sought from the Owner under the Contract, the Owner shall give timely consideration to approval or disapproval. If the Owner has not approved or disapproved within 14 (fourteen] Days of sulhmisxion by the Contractor to the Owner for approval, the approval shall be deemed to have been given.
3.8 The Owner shall promptly take over the Works in accordance with the Contract.
Clause -4-Contmctor’s Principal Obligations in Relation to the Design and execution of the Works
A4-4
4.1 The Design and the Works shall be executed and completed by the Contractor with due care and diligence in accordance with the Coruract.
4.2 The Contractor will execute the Design based on the Conceptual Design and the Design Elements (Tender Design) accepted by the Owner using proper skill and care of professional designers experienced in that type of design. During the preparation of the Preliminary and the Final Design the Contractor will refer as appropriate to the Owner and submit his proposals within the time stated in the Appendix hereto to the Owner for approval. The Contractor will be fully responsible for the Approved Design except for those mailers in respect of which the Owner has made a decision for which the Contractor expressly disclaims responsibility at the time of approval.
4.3 The Contractor will carry out and complete the construction of the Works with due diligence and with workmanship and materials of a good quality in accordance with the Approved Design to meet the requirements of the Contract.
4.4 In relation to the Design and execution and completion of the Works the Contractor confirms the he has entered into the Contract on the basis of reasonable examination of data rdating to the Works provided by the Owner and information which he could have obtained from a visual inspection of the Site (if access thereto was available) and other data readily available to him rdating to the Works.
4.5 With the Final Design the Contractor shall provide the Owner with a detailed programme tor the Works showing the organisation to be cst ablishcd by the Contractor for carrying out the Works including the identities and curricula vitae of key personnel to be employed on the Contract and showing the sequence and methods in which the Works are to be carried out. The Contractor shall transmit to the Owner any further information and data required from him under the Contract in accordance with the programme.
4.6 The Contractor shall have the obligation to inform the Owner of any circumstances and conditions adversely affecting or which may adversely affect the execution or the Contract and shall funher inform the Owner without delay of any circumstances and conditions which cause or which may he likely to cause significant alteration to the programme and without delay suhmit a revised programme to the Owner taking account of such circumstances and conditions.
4.7 If the Contractor shall, in connection with the Design and the execution of the Works, encounter circumstances which, having due regard to the obligalions of the Contractor, could nol reasonably be expected to have been taken into account by an experienced Contractor undertaking the responsibilities of the Contractor, then the Contractor shall give notice thereof to the Owner referring to this Sub-Clause with has initial appraisal of the consequences and, unless the same renders the Conlracl physically or legally impossible to complete nevertheless carry out and complete the Works incorporaling such circumstances (if any) as are appropriate.
4.8 In the event of such circumstances and conditions as is referred to in Clause 4.7 above the Contractor shall be entitled to an appropriate extension of time and the Conlracl Price shall be adjusted to take account of the circumstances and conditions by an increase or decrease as may be appropriate.
4.9 The Contractor shall deliver the Works to the Owner within the time specified in the programme in accordance with the Contract save and except such work and services as are of no material significance and save and except such work and services as arc the Contractor’s responsibility during the Ddecls Liabilily Period .
4.10 During the Detects Liability Period or as soon thcrcttcr as is reasonably practical the Contractor shall carry out and complete all outstanding work and services pursuant to the Contract.
Clause 5- Owner’s General Obligations in Relation to the Design and Execution o] the Works
A4-5
5.1 The Owner shall appoint the Owner’s Representative who shall be responsible to the Owner and shall earry out such duties and exercise such authority as may be provided for in the Contract or additionally delegated to him by the Owner. Any such additional delegation shall be in writing and shall not take effect until a copy thereof has been delivered to the Contractor. Any communication given by the Owner’s Representative to the Contractor in accordance with such additional delegation shall have the same effect as though it had been given by the Owner.
5.2 The Owner shall assist the Contractor to obtain in due time any permits, approvals and/or licences. which must be obtained by the Contractor, subcontractors and/or their employees pursuant to the laws and regulations applicable to the Works.
5.3 The Owner will use all reasonable endeavours by assisting the Contractor to obtain in due time clearance through the customs of Plant Contractor’s Equipment, materials and other things required for the Works.
5.4 In respect of any Contractor’s Equipment which the Contractor has imported for the purposes of the Works, the owner will use all reasonable endeavours to assist the Contractor, where required, III procuring any necessary Government consent to the re-export of such Contractor’s Equipment by the Contractor upon the removal thereof pursuant to the terms of the Contract.
Clause 6 – Contmctor’s General Obligations in Relation to the Design and the Execution of the Works
A4-6
6.1 The Contractor shall comply with the local statutes and regulations prescribed for usc of the Site and performance of the Works.
6.2 The Contractor shall provide on the Site in connection with the execution and completion of the Works such skilled stalf and labour as is neccessary lor the execution of the Works.
6.1 Unless otherwise provided in the Contract, the Contractor shall be responsible for the recruitment, transportation, accommodation and calc ring of all staff and labour local or expatriate, as required for the execution of the Works and for all costs in connection therewith.
6.4 The Contractor shall at all limes during the progress of the Works usc all reasonable endeavours to prevent any unluvtul conduct or misbehaviour by or amongst staff and labour.
6.5 The Contractor shall, in all dealings with stalT and labour, pay due regi1rd to all locally recognised festivals, officinl holidays and religious or other recognised customs.
6.6 The Contractor shall be responsible for applying for and handing all administrative measures in order to obtain, with the assislance of the Owner, all necessary permit(s) or visa(s) from the appropriate authoruies for the entry or all labour and pcrsorncl to be employed on Sile.
6.7 The Contractor sall be responsible at his own expense for the repatriation to the countries from which they were recruited or all his personnel employed on Site.
6.8 The Contractor shall throughout the execution and completion of the Works:
(a) have full regard for the safely of all persons entitled to be upon the Site and keep the Site and the Works (so far as the same is under his control) in an orderly state appropriate for the avoidance of danger.
(b) provide and maintain at his own cost all lights, guards, fencing, warning signs and watching, when and where necessary or required by any duly constituted authority, for the protection of the Works or for the safety and convenience of the public or others
(c) take all reasonable steps to protect the environment on and off the Site and to avoid damage or nuisance to persons or to property of the public or others resulting from pollution, noise or other causes arising as a consequence of his methods of operation.
6.9 The Contractor will at his own expense, but with the assistance of the Owner, handle the import of all Plant, Contractor’s Equipment. and other things required for usc on or incorporation in the Works at the place of import and any formalities for customs clearance except where the applicable laws or regulations require that the Owner he responsible for the same, subject to the obligation of the Owner to bear all customs and import duties imposed by the law of the country in which the Works are situated on such Plant, Contractor’s Equipment, materials and other things in accordance with Clause 16.2 .
6.10 Upon the Taking-Over the Contractor shall clear away and remove from the Site all Contractor’s Equipment, surplus material and rubbish, and leave the Site and Works clean and in a workmanlike condition. Provided that the Contractor shall he entitled to retain on site, until the end of the Defects Liability Period, such materials and Contractor’s Equipment as are required by him for the purpose of fulfilling his obligations during the Detects Liability Period .
6.11 in the event of a subcontractor having undertaken towards the Contractor in respect of the work executed or the goods, materials, Plant or services supplied by such subcontractor. any continuing guarantee or warranty extending for a period exceeding that of the Defects Liahility Period under the Contract, the Contractor shall ilt any time, after the expiration of such period, assign to the Owner, at the Owner’s request and cost, the bcnclt of such guarantee or warranty for the unexpired duration thereof .
6.12 At the request of the Owner the Contractor shall allow the Owner, and any person authorised by him at all rcasonubk- times to have access to the Site and to all Workshops and places where malerials or Plant are heing manufactured, fabricated or prepared for the Works.
6.13 The Contractor shall save harmless and indemnify the Owner from and against all claims and proceedings for or on account of infringement of any patent rights, design trademark or name or other protected rights in respect of the Design or any Contractor’s Equipment, materials or Plant used for or in connection with or for incorporation in the Works and from and against all damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, except where such infringement is the consequence of compliance with any requirement of the Owner.
6.14 Tow copies of the Drawings shall be provided by the Contractor to the Owner free of charge. The Contractor shall at the Owner’s expense supply any further copies required from him hy the Owner. Following issue of the Taking Over Certificate, the Conlractor shall supply to the Owner 2 (two) copies of ab buill drawings.
Clause 7 – Common Obligations of the Owner and COil tractor in Relation to the Design and the Works
A4-7
7.1 Both the Owner and the Contractor shall exchange with each other any and all information wich rcasonably can be considered to be of importance for the satisfactory and correct Design and execution and completion of the Works. The Contractor shall within 14 (fourteen) Days alter the end or the last Day or each month submit a report to the Owner of the progress of the Design and the Works.
7.2 In accordance with Clause 21 the parties undertake to maintain, during and utter the implementation of the Contract, the confidential nature of any manufacturing or business infornation and know-how-how received, and not to disclose to third parties except so far as necessary” for the furtherance of the Contract any information or experience which they ohtain as a result of their collaboration.
Clause 8-Performance Security
A4-8
8.I The Contractor shall obtain and provide to the Owner security for the proper performance of this Contract upon signature of the Contract Agreement by the parties in the sum stated in the Appendix to these Conditions and in the form agreed by the parties hereto. The institution providing such security shall be acceptable to the Owner. The cost of colllplying with the requirements of this Clause shall be borne by the Cnnuactor, unless the Contract provides otherwise.
8.2 The performance security shall be valid until the Conuactor has executed and completed the Works and remedied any defects therein in accordance with the Contract. No claim shall be made against such security after the expiry of the Detects Liability Period and such security shall be returned to the Contractor within 14 (fourteen) Days 01 the expiry of the said Detects Liability Period.
8.3 Whether or not the performance security is staled by its terms to be payable on the demand of the Owner, the Owner shall not make a claim under the security unless one of the following conditions is satisfied:
(a) the Contractor is in breach of the Contract and fails to remedy the breach within 42 (forty-two) days alter receiving notice trom the Owner requiring him so to do, which notice shall stale the intention to claim under the security, the amount claimed and the hreach relied upon, or
(b) the Owner and the Contractor have agreed in writing tbat the amount demanded is payable to the Owner, and the amount has not been paid within 42 (forty-two) days thereafter, or
(c) the Owner has been awarded damages in arbitration under Clause 23 and the amount awarded has not been paid within 42 (forty-two) days after the award, or
(d) the Contractor has gone into liquidation, receivership or is bankrupt and the liquidator or receiver has not, within 42 (fortv-Iwo] days, signified his intention of fulfilling the Conuactors obligatiolls under the Contract.
In eyery case the Owner shall, when making the claim, send a copy to the Contractor.
Clause 9-Commencement Completion and Acceptance of the Design and the Works
A4-9
9.1 The Contructur shall commence the Design and the Works at the Commencement Date. Upon approval of the Final Dcsign hy the Owner the Contractor shall proceed with the Works with due expedition and without delay. The parties may nevertheless agree that specific work be carried out prior to the estahlishment of the Approved Design.
9.2 The Commencemcnt Date shall be the datc sated in the Appendix hereto as the Commencement Dale unless otherwise agreed in the Contract Agreement.
The whole of the Works shall be completed in accordance with the provisions of the Contract within the Time for Completion.
9.3 In the even of
(a) the amount or nature of extra or additional work, or
(b) any cause of delay referred to in these Conditions expressly or implicitly whether or not expressly stating that the Contractor is cntitlcd to an extension or time, or
(c) exceptionally advcrs climatic conditions. or
(d) any delay. impediment or prevention by the Owner. or
(e) other special circumstances which may occur. other than through a default of or breach of Contract by the Contractor or for which he is responsihle, or
(f) without limiting the foregoing or being limited thereby force majeure or any operation of the forces of nature or other circumstances (if not force majeure) beyond the reasonable control of either of the parties hereto which if the Contractor could not reasonably have foreseen, being such as fairly to entitle the Contractor to an extension of the Time for Completion of the Design and the Works, the Contractor shall without prejudice to any other right or remedy be entiled to such extension of time overall for cornplcuon of the Works as is reasonable taking account of all the circumstances and shall give notice of the extension to the Owner without delav. The Contactor shall be entitled to revision of the lenglh of extension if the cause continues or if the effects have consequences which were not or not fully taken into account.
9.4 (a) When the whole of the Works have been substanially completed and have satisfaclorily passed any Tests on Completion prescrihed by the Contract, the Contractor shall give nolice to that effect to the Owner. Such notice and underlaking shall be deemed to be a request by the Contractor for the Owner to issue a Taking-Over Certificate in respect of the Works .
(b) The Owner shall, within 21 (twenty-one) Days of the date of such notice either issue to the Contractor a Taking-Over Certificate conrirming the dale of such notice as the date when the Works were suhstantially completed in accordance with the Contracl, or identify in wriling to the Contractor the work and services which Ihe Owner considers is required to be done pursuant to the Contract before the issue of such Certificate. The Owner shall also notify the Conunctor of any such defects in the Works that have to be rcculicd before issue of the Taking Over Certificate. The Owner’s notice hereunder is without prejudice to Clause 9.5 .
(c) The Contractor shall be entitled to receive a Takinu-Ovcr Certificate within 7 (seven) Days of completion of the whole or part of the works and services so specified and remedying any defects so notified at (b) above effective as at the date of completion thereof.
(d) In case of occupancy or use or the Works by the Owner the Contractor shall be entitled to a Taking-Over Ccrtificutc for such Works or part thereof effective as at the date of occupancy or use thereof.
(e) The Contractor shall notily the Owner within (fourteen) Days of the notice ar (b) above of any such work and services which the Contractor either
(i) considers do not Iorrn part or the Contract or
(ii) considers do not require to be done before the issue or the Taking-Over Certificate and specilying which.
9.5 The Contractor shall complete any work outstanding on the date stated in the Taking-Over Certificate as soon as reasonably practicable after such date including remedying any detect until the end of the Defects Liability Period.
9.6 The Contractor shall complete anv work outstanding on the date stated in the Taking-Over Certificate as soon as reasonably practicable after such date including remedying any detect until the end of the Owner made during the Defects Liability Period execute all such other works in relation to the Contract as requested by the Owner so that at the end of the Defects Liability Period or as soon as possible therefter the Works shall be in the condition required by the Contract and the Contractm shall he entitled to an addition to the Contract Price for the same .
Clause10 – Liquiduted Damages and Bonuses
A4-10
10.1 It the Contractor fails to complete the Works within the Time for Completion in accordance with the Contract, then the Contractor shall pay to the Owner the relevant sum stated in the Appcndix hereto as liquidated damages for such default and not as a pcnaly (which sum shall be the only monies due trorn the Contractor tor such default) for every day which shall elapse beween the Time for Completion and the date specified in the Taking-Over Certificate, subject to the limit staid in the Appendix hereto. The payment of such darnages shall not relieve the Contractor from his obligation to complete the Works, or from any other or his obligations and liabilities under the Coruract but shall be in full discharge of the Conuactor’s liability for delay in complcrion.
10.2 If the Conuactor achieves completion or the Works prior to the Time for Completion, the Owner shall pay tll the Contractor a sum as a bonus in addition to the Contract Price as stated in the Appendix hereto for every Day which shall elapse between the date specified in the Taking-Over Certificate and the Time for Completion up to the limit stated in the: Appendix.
10.3 For the purpose of Clause 10 date or completion of the Works shall be the date of substantial completion thereof in accordance with Clause 9.4.
10.4 If prior to the Time for Compleiton the Contractor in its absolute discretion following the request of the Owner agrees to allow the Owner to usc or occupy the Works in whole or part then liquidated damages shall be reduced in the proportion which the value of the part so used or occupied bears to the value of the whole of the works, as applicable. The provisions of this Sub-Clause shall only apply to the rate of liquidated damages and shall not affect the limit thereof.
Clause 11 – Variations
A4-11
11.1 The Owner has the right, at any time, by giving a written notice to the Contractor, to propose any changes, modifications, additions or omissions to in or from the Works (hereinafter relerred to as “Variation”).
11.1.1 Whenever the Owner shall desire to make such Yariation(s) in work, the Owner shall so notify the Contractor in writing, describing the variation(s) desired in sufficient detail so as to enable the Contraelor to appraise its nature and extent.
11.1.2 Within 28 (twenty-eight) days of receipt of the notice of proposed variation(s) from the Owner the Contractor shall inform the Owner of the cost of such variation(s) including a reasonable cost break down in a form mutually agreed indicating adjustment of the Contrael Price, any required extension of the Time for Completion and/or changes of the Design.
Within 28 (twenty-eight) days attcr receipt of said information from the Contraelor the Owner shall approve the execution of such variation(s) in accordance with the terms set out by the Contractor or on such other terms as the Owner and the Contractor may agree in writing prior to the execution of such variation(s).
11.2 The Contractor may suggest any variation(s) it considers necessary or desirable during the execution of the Contract. Anv such Variation(s) shall he submiucd for the approval of the Owner together with an explanation of the ground therefore, the cost of such Variation(s), any required extension of the Time for Completion and/or any changes of the Design. The Owner shall approve and/or comment in writing to the Conunctor within 28 (twentyeight) days of the receipt of the proposal. The proposed Bariation(s) shall be considered valid only if approved by the Owner.
11.3 Until the approval for the Variation(s) is given in accordance with this Clause and the terms of the execution and the payment therefore have been agreed in writing, the Contractor shall not execute any Varialion(s) to the Works and/or to the Design nor shall any change be made to the Time tor Completion.
11.4 After such approval, the Contract Price, the Time for Completion and any other obligations under the Contract shall be modifited to the extent so agreed by the Owner and the Contractor and the Contractor shall promptly execute such Variation(s) and shall make any revision in the Contract documents as may be necessary .
CIause 12 – Allocation of Risk
A4-12
12.1 The Conuactor shall take full responsihility for the care of the Works and materials and Pant from the Commencement Date until the
date stated in the Taking-Over Certificate Ior the whole of the Works, when the responsibility for such care shall pass to the Owner, notwithstanding the Contractor’s obligation to perform any outstanding Work or to rectify any detects during the Detects Liability Period.
12.2 If any loss or damage happens to the Works, or any part thereof. or materials or Plant during the period for which the Contractor is responsible for the care thereof, from any cause whatsoever, other than the risks ddined in Sub-Clause 12.4, the Contractor shall, at his own cost, rectify such loss or damage so that the Works conform in every respect with the provisions of the Contract.
12.3 In the event of any such loss or danage happening from any of the risks defined in Clause 12.4 or in combination with other risks, the Contractor shall, if and to the extent required by the Owner, rectify the loss or damage and the Contractor shall be entitled to an addition to the Contract Price. In the case of combination or risks causing loss or damage any such entitkment shall take into account the proportional responsibility of the Contractor and the Owner.
12.4
12.4.1 The Owner’s risks are:
(a) war, hostilities (whether war be declared or not), invasion act of foreign enemies
(b) rebellion, revolution, insurrcctiou. sabotage or military or usurped power, or civil war
(c) ionising radiations, or contamination by radio-activity frorn any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component thereof
(d) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.
(e) riot. commotion or disorder, unless solely restricted to employees of the Contractor or of his subcontractors and arising from the conduct of the Works
(f) without limiting the foregoing or being limited thereby force majeure or any operation of the forces of nature or other circumstances (if not force majeure) beyond the reasonable control of either of the parties hereto which the Contractor could not reasonably have foreseen.
12.4.2 In addition to the Owner’s risks as in Clause 12.4.1 the following shall be at the risk of the Owner:
(a) loss or damage due to the usc or occupation by the Owner of any Section or part of the Works, except as may be provided for in the Contract
(b) loss or damage due to the design of the Works to the extent that such loss or damage is due to the Owner’s decision as ttl the design in respect of which the Contractor has expressly disclaimed responsibility in writing within a reasonablc time.
12.5 The Contractor shall, except if and so far as the Contract provides otherwise, indemnify the Owner against all losses and claims in respect of :
(a) death of or injury to any person, or
(b) loss of or damage to any property (other than the Works). which may arise out of or in consequence of the execution and coruplcuon of the Works and the remedying of any defects tcrcin, and against all claims, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto, subject to the exception defined in Clause
12.6.
12.6 The “exception” relerred to in Clause 12.5 are:
(a) the usc or occupation of land by the Works, or any part thereof or access thereto
(b) the right of the Owner to execute to execute the Works, or any part thereof. on, over, under, in or through any land
(c) damage to property which is the unavoidable resull of the execution and completion of the Works, or the remedying of any defects therein, in accordance with the Contract
(d) death of or injury to persons or loss of or damage to properly resulting from any act or neglect of the Owner, his agents, servants or other Contractors, not being employed by the Contractor, or in respect of any claims, proceedings, damages, costs, charges and expenses in respect thereof Of in n-Iauon thereto or, where the injury of damage was contributed to by the Contractor, his servants or agents, such part of the said injury or damage as muy be just and equitable having regard to the extent of the responsibility of the Owner, his servants or agents or other Contractors for the injury or damage.
12.7 The Owner shall indemnify the Contractor against all claims, proceedings, damages, costs, charges and expenses in respect of the matters referred to in the except ions defined in Clause 12,6.
12.8 The Owner shall not be liable for or in respect of any damages or compensation payable to any workman or other person in the employment of the Contractor or any subcontractor, other than death or mjury resulling from any act or default of the Owner, his agents or servants. The Contractor shall indemnify and keep indemnilied the Owner against all such damages and compensation, other than those for which thc Owner is liable as aforeasid, and against all claims, proceedings, damages, costs, charges, and expenses whatsoever in respect thereof or in relation thereto.
12.9 The Contractor shall be under no liahility whatsoever in consequence of any of the special risks referred to in Clause 12.10, whether by way of indemnity or otherwise, for or in respect of :
(a) destruction of or damage to the Works, or
(b) destruction of or damage to property, whether of the Owner or third parties, or
(c) injurv or loss of lilc
12.10 The special risks arc:
(a) the risks defined under paragraphs (a), (e), (d) and (e) of Clause 12.4.1 and
(b) the risks defined under paragraph (b) of Clause 12.4.1 insofar as they affect the performance of this Contract.
12.11 If the Works or any materials or Plant Oil or near or in transit to the Site, or any of the Contractor’s Equipment, sustain destruction or damage by reason of any of the said special risks, the Contractor shall be entitled to payment in accordance with the Contract for any Permanent Works duly executed and for any materials or Plant or Contractor’s Equipment to destroyed or damaged and, or as may be necessary for the completion of the Works, to payment as an addition to the Contract Price for:
(a) rectifying any such destruction or damage to the Works, and
(b) replacing or rectifying such materials Plant or Contractor’s Equipment which shall include in the case of replacement of materials or Plant and Contractor’s Equipment the fair market value thereof.
12.12 Destruction, damage, injury or loss of life caused by the explosion or impact, whenever and wherever occurring, of any mine, bomb, shell, grenade, or other projectile, missile, munition, or explosive of war, shall be deemed to be a consequence of the said special risks.
12.13 Save to the extent that the Contractor is entitled to pavmcnt under any other provision of the Contract, the Owner shall repay to the Contractor any costs of the Works which are howsoever atributahlc to or consequent on or the result of or in any way whatsoever connected with the said special risks, subject however to the provision in this Clause hereinafter contained in regard to outhracak of war, but the Contractor shall as soon as any such cost comes to his knowledge, forthwith notifv the Owner thereof.
12.14 if , arter the dale 28 (twenty-eight) Days prior to the date of the submission by the Contractor of the Design Elements (Tender Design) or any time thereafter including after the signing of the Contract Agreement for the Contract there occur in the country in which the Works arc being or are to be executed changes to any National or State Statute, Ordinance, Decree or other Law or any regulatiun or by-law of any local or other duly constitued authority, or the introduction of any such State Statute, Ordinance, Decree, Law, regulation or by-law which causes additional or reduced cost to the Contractor in the execution of the Contract, such additional or reduced cost shall after consultation with the Owner and the Contractor, be added to or deducted from the Contract Price and the Contractor shall be entitled to an extension of time for delay arising as a consequence to completion of the Works .
Clause 13 – Insurance
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13.1 The Contractor shall , without limiting his or the Owner’s obligations and responsibilities under Clause 12, insure :
(a) the works , rogether with materials and Plant for incorporation therein , to the full replacement cost
(b) an additional sum of 15 per cent of such replacement cost , or as may be otherwise agreed , to cover any additional of and incidental to the rectification of loss or damage , and
(c) the Contractor’s Equipment and other things brought onto the Site by the Contractor , for a sum sufficient to provide for their replacement at the site .
13.2 The insurance in paragraphs (a) and (b) of Clause 13.1 shall be in the joint names of the Contractor and the Owner and shall cover :
(a) the Owner and the Contractor against all loss or damage from whatsoever cause arising , other than as provided in Clause 13.4 from the Commencement Date or such other date as may be mutually agreed by the Owner and the Contractor until the date stated in the relevant Taking-Over Certificate in respect of the Works or any section or part thereof as .
(b) the Contractor for his liability :
(i) during the Defects Liability period for loss or damage arising from a cause occurring prior to the commencement of the Defects Liability Period , and
(ii) for loss or damage occasioned by the Contractor in the course of any operations carried out by him for the purpuse of complying with his obligations under Clauses 9.4, 9.5 and 9.6 .
13.3 Any amounts not insured or not recovered from the insurers shall be horne by the Owner or the Contractor in accordance with their responsibilities under Clause 12.
13.4 There shall be no ubligatiun for the insurances in Sub-Clause 13.1 to include loss or damage caused by
(a) war, hostilities (where war be declared or nut), invasion, act of foreign enemies
(b) rebellion, revolution, insurrection, sabotage or military or usurped power, or civil war
(c) ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component thereof
(d) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.
13.5 The Contractor shall, without limiting his or the Owner’s obligations and responsibilities under Clause 12 insure, in the joint names of the Contractor and the Owner, against liabilities for death of or injury to any person (other than as provided in Clause 12.8 ) or loss or or damage to any property (other than the Works) arising out of the performance of the Contract, other than the exceptions defined in paragraphs (a), (b) and (c) of Clause 12.0.
13.6 Such insurance shall be for at least the amount agreed between the parties or failing such agreement as the Contractor considers reasonable.
13.7 The insurance policy shall include a lialility clause such that the insurance shall apply to the Contractor and to the Owner as separate insureds .
13.8 The Contractor shall insure against liability as described in Clause 12.8 and shall continue shch insurance during the whole of the time that any persons are employed by him on the Works . Provided that , in respect of any persons employed by any subcontractor , the Contractor’s obligations to insure as aforesaid under this Sub-Clause shall be satisfied if the subcontractor shall have insured against the lialility in respect of such persons in shch subcontractor shall produce to the Owner , when required by the Contractor , shch policy of insurance and the receipt for the payment of the current premium .
13.9 The Contractor shall provide evidence to the Owner prior to the start of work at the site that the insurances required under the Contract have been effected and shall , within 56 (fifty – six) Days of the Commencement Date , provide the insurance policies to the Owner . The Contractor shall effect all insurances for which he is responsible with insurers selected by him unless agreed upon by the parties upon entering into the Contract .
13.10 The Contractor shall maintain the insurances at all times in accordance with the terms of the Contract and shall , when required , produce to the Owner the insurance policies in force and the receipts for payment of the current premiums .
13.11 If the Contractor fails to effect and keep in force any of the insurances required under the Contract, or fails to provide the policies to the Owner within the period required hy Clause 13.9, then and in any such case the Owner may effect and keep in force any such insurances and pay any premium as may be necessary for that purpose and from time to time dcduct the amount so paid from any monies due or to become due to the Contractor, or recover the same as a debt due from the Contractor.
13.2 In the event that the Contractor or the Owner fails to comply with conditions imposed by the insurance policies effected pursuant to the Contract, each shall indemnify the other against all losses and claims arising from such failure.
Clause 14-Contract Price
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14.1 The Owner shall pay to the Contractor the Contract Price in consideration of the Contractor’s obligation pursuant to the Contract.
14.2 The Contract Price shall be as slated in the separate statement annexed hereto and entitled “Contract Price Terms”. The Contract Price Terms shall form part of and he construed with these conditions subject to the provisions hereof and shall when paid be in full satisfaction of the Contractor’s entitlement pursuant to the Contract.
14.3 Without prejudice to any other right or remedy under the Contract if there is delay in payment by the Owner to the Contractor of any sums payable pursuant to the Contract the Owner shall pay interest to the Contractor at the rate per annum specified in the Contract Price Terms calculated on a Day to Day basis.
14.4 Where there is any adjustment to the Contract Price pursuant to the provisions hereof the sum to he ascertained by way of addition or deduction shall make due allowance for overhead and profit of the Contractor and the Contractor shall provide to the Owner such surrorting information as is reasonable.
14.5 The parties acknowledge that the Contract Price represents the fair and proper price and that the Contract provision to adjust the Contract Price including (without limiting the scope of such provisions) for Variations, escalation formulae, currency exchange clause as applicable are to maintain the Contract Price as a fair and proper price for the carrying out and completion of the Contract in accordance with actual trends of costs and/or currencies to avoid undue loss or prurits to either party as a consequence or circumstances affecting the carrying out and completion of the Contracl.
Clause 15-Paymelll
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15.1 The Contract Price shall be paid by the Owner to the Contractor in instalments at the times and in the manner provided for in the separate statement annexed hereto entitled “Terms or Payment”. The terms of payment shall form part or and be construed with these conditions.
15.2 When the Contract Price is cxprcscd in any particular currcncy then unless the parties otherwise agree payment shall be made in that currency at the place stipulated by the Contractor and where there is more than one currency the Contract Price shall he paid in such currency of the Contractor’s choice at the place stipulated in the Terms of Payment .
Clause 16- Taxes and Duties
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16.1 Except as in Clause 12.14 and as otherwise spccifically providcd in the Contract. the Contractor shall bear and pay all taxes. duties, levies and charges assessed on the Contractor, its subcontractors or their employees by all local. state or national government authorities in connection with the Works in and outside the country where the Site is located.
16.2 Notwithstanding Clause 16.1 above, the Owner shall hear and promptly pay or reimburse all customs and import duties imposed by the law of the country where the Site is located on materials. Plant and goods to be incorporatcd into the Works and on Contractor’s Equipmcnl. 16.3 If any tax exemptions, reductions, allowances or privileges are available in the country where the Site is locatcd. the Owner shall use its best endcvours to enable the Ctmlraclor to benefit from any such tax savings to the maximum allowable extent.
16.4 For the purpose of the Contract it is agreed that the Contract Price is bascd on the taxes. duties. levies and charges (hcreinafter called “tax” in this Clause 16) prevailing 28 (twenty-eight) Days prior to the date of the submission by the Contractor of the Design Elcments (Tender Design). If any of the rates of tax is increased or decrcased or a new tax is introduced or an existing tax abolished or any change in interpretation or application of any tax occurs in the course of the performance of the Contract, which was or is to be assessed on thc Contractor, subcontractors or their employees in connection with the execution or the Contract, an equitable adjustment of the Contract Price shall be made to reflect any such change by addition to the Contract Price or deduction therefrom as the case may be.
Clause 17-Discharge of Obligations Warranties
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17.1 The Contractor undertakes that upon the date stated in the Taking Over Certificate the Works will have been completed in accordance with the Contract and that during the Defects Liability Period the Contractor will remedy any detects which arc the responsibility of the Contractor pursuant to its obligations hereunder and otherwise fulfil its obligations.
17.2 The Contractor further undertakes that insofar as the Contractor is able, where the Contractor has a benefit of any warranty in respect or any Plant, which will continue after completion of the Works, the Contractor will at the end of the Detects Liability Period (and when no work or services remain outstanding which the Contractor requires to be carried out or performed) transfer the benefit thereof to the Owner.
17.3 When the Contractor has completed all Works and services pursuant to Clause 9.5 then apart from the obligation to transfer pursuant to Clause 17.2 above and the liability of the Contractor pursuant to Clause 17.1 above and mattes involving third parties arising during the execution of the Works, the Contractor shall be under no further liability to the Owner pursuant to the Contract.
Clause 18-Contractor’s Dejault
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18.1 If the Contraclm is deemed by law unable to pay his debts as they fall due, or enters into voluntary or involuntary bankruptcy, liquidation or dissolution (other than a voluntary liquidation for the purposes of amalgamation or reconstruction) or becomes insolvent. or makes an arrangement with, or assignment in favour of, his creditors, or agrees to carry out the Contract under a committee of inspection of his creditors, or if a receiver, administrator, trustee or liquidator is appointed over any substantial part of his assets, or if, under any low or regulation rdating to reorganisation, arrangement or readjustment of debts, proceedings are commenced against the Contractor or resolutions passed in connection with dissolution or liquidation or if any steps are taken to enforce any security interest over a substantial part of the assets of the Contractor. or if any act is done or event occurs with respect to the Contractor or his assets which, under any applicable law has a substantially similar effect to any of the foregoing acts or events, or has an execution levied on his goods (not remedied within 28 (twenty-eight) Days) or if the Contractor
(a) has without lawful justification abandoned the Contract, or
(b) without reasonable excuse fails to commence the Works in accordance with Clause 9 or to proceed with the Works, with due diligence, within 28 (twenty-eight) Days after receiving notice to that effect from the Owner, or
(c) following previous warning from the Owner, in writing, otherwise persistently neglects without reasonable excuse to carry out its ohligations under the Contract,
then the Owner may, after giving 28 (twenty-eight) Day’s notice to the Contractor, enter upon the Site and the Works and terminate the employment of the Contractor without thereby releasing the Contractor from any of his obligations or liabilities under the Contract, or affecting the rights and authorities conferred on the Owner by the Contract, and may himself complete the Works or may employ any other Contractor to complete the Works. The Owner or such other Contractor may usc tor such completion so much of the Contractor’s Equipment, temporary works and materials as he or they may think proper.
18.2 The Contractor shall, within 56 (fifty-six) Days after any such entry and insofar as is practicable after such investigation or enquiries as is proper to make or institute shall issue a statement to the Owner stating
(a) the amount (if any) at the time of such entry and termination, reasonably earned by or which would reasonably accrue to the Contractor in respect of work then actually done and services provided by him under the Contract, and
(b) the value of any of the said unused or partially used materials and Plant and Contractor’s Equipment.
18.3 If the Owner terminates the Contractor’s employment under this Clause, he shall not be liable to pay to the Conlractor any further amounts (including any damages) in respect of the Contract until the costs of design, execution, complection and remedying of any defects, damages for delay in completion pursuant to Clause 10 (if any) and all other expenses reasonably and properly incurred by the Owner to complete the Works have been finally established. The Contractor shall be entitled to receive such sums (if any) as would have been payable to him. If such amount exceeds the sum which would have been payable to the Contractor on due completion by him then the Contractor shall, upon demand, pay to the Owner the amount of such excess and it shall be deemed a debt due by the Contractor to the Owner and shall be recoverable accordingly.
18.4 Unless prohibited by law, the Contractor shall, if requested by the Owner, within 14 (fourteen) Days of such entry and termination referred to in Clause 18.1 assign to the Owner the benefit of any agreement for the supply of any goods or materials or services and/or for the execution of any work for the purposes of the Contract, which the Contractor may have entered into upon due credit being given by the Owner to the Contractor for the cost thereof with such indemnity and/or security to the Contractor as may be reasonable.
18.5 If, by reason of any accident, or failure, or other event occurring to, in, or in connection with the Works, or any part thereof, either during the execution of the Works, or during the Defects Liability Period, any remedial or other work is urgently necessary for the safety of the Works and the Contractor is unable or unwilling within the time necessary having, regard to circumstances to do such work, the Owner shall be entitled to carry out such work. If the work or repair so done by the Owner is work which the Contractor was liable to do at his own cost under the Contract, then the cost thereof or so much as is reasonable shall, after consultation between the Owner and the Contractor, be recoverable from the Contractor by the Owner, and may be deducted by
the Owner from any monies due or to become due to the Contractor. Provided that the Owner shall as soon after the occurrence of any such emergency as may be reasonably practicable, notify the Contractor thereof.
Clause 19-Owner’s Default
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19,1 In the event of the Owner
(a) failing to pay to the Contractor the amount due within 28 (twenty-eight) Days after the expiry of the time within which payment is to be made, subject to any deduction that the Owner is entitled to make under the Contract, or
(b) without reasonable excuse following previous warning from the Contractor otherwise persistently neglects to carry out its obligatiolls under the Contract, or
(c) becoming bankrupt or, being a company, if liquidation is initiated, other
than for the purpose of a scheme of reconstruction or amalgamation, the Contractor shall notwithstanding the provisions of Clause 194. be entitled to terminate his employment under the Contract by giving notice to the Owner. Such termination shall take effect 14 (fourteen) Days after the giving of the notice,
19.2 Upon the expiry of the 14 (fourreen) Day’s notice referred to in Clause 19,1 the Contractor shall, with all reasonable despatch, remove from the Site all Contractor’s Equipment brought by him thereon and shall give similar facilities to his subcontractor to do so,
19,3 In the event of such termination the Owner shall be under the same obligalions to the Contractor in regard to payment as il the Contract had been terminated uner the provisions of Clause 22, but, in udditiou to the payments specified in Clause 22.4, the Owner shall pay to the Contractor the amount of any loss or damage to the Contractor arising out of or in connection with or by consequence of such termination.
19.4 Without prejudice to the Contraclor’s entillement to any interest and to terminate unidcr Clause 19.1, the Contractor may, if the Owner fails to pay the Contractor any amount due within 14 (fourteen) Days, subject to any deduction that the Owner is entitled to make under the Contract. after giving 7 (seven) Day’s prior notice to the Owner, suspend work, services and other activities or reduce the rate of work, services and other activities. If the Contractor suspends work, scrvices or other activities or reduces the rate of work, services or other activities in accordance with the provisions of this Clause and thereby suffers delay or incurs cost the Contractor shall be entitled to an extension of time for delay to the completion of the Works arising as a consequence thereof and the Owner shall be liable to the Contractor for an addition to the Contract Price in respect thereof fo addilional cost and expense.
19.5 Where the Contractor suspends work, services or other activities or reduces the rate of work services or other activities, having given notice in acwrdance with Cluasc 19.4 and the Owner subsequently pays the amounl due, including any interest the Contractor’s entitlement under Clause 19.1 sball, if notice of lermination has not been given, lapse and the Contractor shall resume normal working as soon as is reasonably possible but without prejudice to the Contractor’s rights in respect of any future breach.
Clause 20-lntellectual Property/Copyrigltt
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20.1 On the date stated in the Taking Over Certificate the Contractor will be deemed to grant to the Owner and his successors in title to the Works without further fee a non-exclusive right to utilise patents knowhow and other industrial property incorporated of utilised in the Works for the purposes envisaged by the Contract provided or procured by the Contractor provided that when the incorporated patents knowhow or other intellectual property have been derived from or procured by the Owner (other than pursuant to the Contract) the same shall as between the Owner and the Contractor be the property of the Owner to the extent to derived or procured.
20.2 Copyright in all Drawings, documents and data and other information, provided to the Owner by or on behalf of the Contractor hereunder shall, as between the Owner and the Contractor be vested in the Contractor.
Clause 21-Confidentiality
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21.1 The Owner and the Contractor shall keep confidential and shall
not, without the wrttcn consent of the other party hereto, divulge to any third party or use any Drawings, documents, data or other information furnished directly or indirectly by the other party hereto in connection with the Contract whether such intorrnation has been furnished prior to, during or following termination of the Contract. Notwithstanding the above, the parties may each utilise and disclose such documents, data and other information it receives from the other to the extent required for the purposes of the Contract and to make usc of the Works.
21.2 The obligation of a party under 21.1 above shall not apply to Drawings, documents, data or other information which:
(a) now or hereafter enters the public domain through no fault of that party,
(b) can be proved to have been in the possession of that party at the time of disclosure and which was not previously obtained, directly or indirectly, from the other party herecto, or
(c) otherwise lawfully becomes available to that party from a third party under no obligation of confidentiality.
Clause 22- Termination Including Termination at Owner’s
Convenience
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22.1 If, during the currency of the Contract, there is an outbreak of war, whether war is declared or not, in any part of the world which, whether financially or otherwise, materially affects the Works, the Contractor shall, unless and until the Contract is terminated under the provisions of this Clause, continue to use all reasonable endeavours to complete the Works. Provided that either party shall be entitled, at any time after such outbreak of war, to terminate the Contract by giving notice to the other party and, upon such notice being given, the Contract shall, except as to the rights of the parties under this Clause and to the operation of Clause 19, terminate, but without prejudice to the rights of either party in respect of any antecedent breach thereof.
22.2 The Owner shall be entitled to terminate the Contract at any time for the Owner’s convenience after giving 56 (fifty-six) Days prior notice to the Contractor and the provision of Clause 22.4 shall apply.
22.3 If
(a) the Contract terminates or is terminated as a consequence of any circumstance outside the control of a party or which arises after the Contract Agreement has been entered into which renders in impossible or unlawful for either party to fulfil its contractual obligations, or
(b) under the law governing the Contract the parties arc released from further performance, or
(c) the Owner gives notice to the Contractor that for untorcsccn reason, due to economic dislocation, it is impossible for the Owner to continue to meet his contractual obligations
then the sum(s) payable by the Owner to the Contractor in respect of services provided and work executed shall be in accordance with Clause 22.4 below.
22.4 If the Contract terminates or is terminated as under any of the provisions of Clause 22.1 to 22.3 inclusive, the Contractor shall be paid by the Owner, insofar as such amounts or items have not already been covered by payments on account made to the Contractor, for all work done and services provided by the Contractor including overheads and profit prior to the date of termination and upon request by the Contractor in addition, without limiting the foregoing:
(a) the cost of materials, Plant, Contractor’s Equipment or goods reasonable ordered for the Works which have been delivered to the Conlractor or of which the Contractor is legally liable to accept delivery, such materials, Pant, Contractor’s Equipment or goods becoming thc property of the Owner upon such payments being made by him
(b) A sum being the amount of any expenditure reasonably incurred by the Contractor in the expectation of completing the whole of the Works insofar as such expenditure has not been covered by any other payments rderred to in this Clause
(c) Any additional sum payble under the provisions of Clauses 12.11 and 12.13
(d) Such proportion of the cost as may be reasonable, taking into account payments made or to be made for services provided and work executed, of removal of Contractor’s Equipment under Clause 22.2 and, if required by the Contractor, return thereof to the Contractor’s main yard in his country of registration or to other destination) at no greater cost
(e) The reasonablecost of repatriation of all the Contractor’s staff and workmen employed on or in connection with the Works at the time of such termination provided that against any payment due from the Owner under this Clause, the Owner shall be entitled to be credited with any outstanding balances due from the Contractor for advances in respect of Contractor’s Equipment, materials and Plant and any other sums which, at the date of termination, were recoverable by the Owner from the Contractor under the terms of the Contract. Any sums payable under this Clause shall, after consultation by the Contractor with the Owner as far as practicable, be determined by the Cnntractor who shall
notify the Owner accordingly.
22.5 If the Contract is terminated under the provrsions of Clause 22.1, the Contractor shall so far as he is reasonably able, with all reasonable dispatch, remove from the Site all Contractor’s Equipment and shall give similar facilities to his subcontractors to do so.
22.6. If the Approved Design is not established by the time provided for herein then one party may give to the other 28 (twenty-eight) Days prior notice of intention to give notice to terminate the obligations of the parties under the provision of the Contract in relation to the Works and if at the end of the
said 28 (twenty-eight) Days the Approved Design has not been eastablished either party may thereupon give notice to the other under this Clause bringing to an end within 7 (seven) Days all further obligations of the parties in relation to the Works and the provisions of Clause 22.4 shall apply.
Clause 23-Settlement or Disputes
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23.1 If a dispute of any kind whatsoever arises between the Owner and the Contractor in connection with, or arising out of, the Conuact or the Works and whether before or after repudiation or other termination of the Contract, including without limiting the foregoing any dispute as to any matter or thing in relation to the Contract, then either the Owner or the Contractor may give notice to the other party of his intention to commence arbitration, as hereinafter provided as to the matter in dispute and no arbitration in respect thereof may be commenced unless such notice is given. Unless the Contract has already been abandoned or terminated, the parties subject to the operation of Clause 19.4 shall, in every case, continue to comply with their ohligations under the Contract.
23.2 Where notice of intention to commence arbitration has been given in accordance with Clause 23.1 arhitration of such dispute shall not he commenced unless an attempt has first been made by the parties to settle such dispute amicably. Provided that, unless the parties otherwise agree, arbitration may be commenced on or after the 28th (twenty-eighth) Day after toe Day on which notice of intention to commence arbitration of such dispute was given, whether or not any attempt at amicalbe settlement thereof has been made.
23.3 Any dispute in respect of which anicablc settlement has not been reached within the period stated in Clause 23.2 shall be finally settled by arhitration by one or more arbirators appointed under the Rules referred to in the Appendix. Arbitration may be commenced prior to or after completion of the Works, provided that the ohligations of the Owner and the Contractor shall not be altered by reason of the arbitration being conducted during the progress of the Works.
Clause 24-Law
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24 The law which shall apply to the Contract and according to which the Contract shall he construed is as specified in the Appendix hereto.
Clause 25-General
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25.1 The Owner shall not without the prior consent of the Contractor assign the Contract or any part thereof, or any benefit or interest therein or thereunder
25.2 The Contractor shall not. without the prior consent or the Owner assign the Contract or any part thereof, or any benefit or interest therein or thereunder, otherwise thant by:
(a) a charge in favour of the Contractor’s hankers of any monies due or to become due under the Contract, or
(b) assignment to the Contractor’s insurers including credit insurers (in cases where the insurers have discharged the Contractor’s loss Of liahility) or the Contractor’s right to obtain relief against any other party liable.
25.3 Subject to the Owner’s approval which shall not be unrcasonabty withheld the Contractor may subcontruct the whole or any part or parts of the design and execution of the Works.
25.4
(a) The language or languages in which the Contract documents shall be drawn up, shall be as stuted in the Appendix hereto.
(b) If the said documents are written in more than one language, the language according to which the Contract shall he construed and interpreted will he as stated in the Appendix,
25.5 Notwithstanding termination of the Contract and without prejudice to the continuation of any other provision of the Contract which in the context of the Contract is internded to or does survive termiuation of the Contract, Clause 18 to 25 hereof shall survive termination.
