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Turn – Key
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
A4-13
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
A4-14
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
A4-15
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
A4-16
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
A4-17
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
A4-18
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
A4-19
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
A4-20
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
A4-21
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
A4-22
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
A4-23
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
A4-24
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
A4-25
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.
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