- ARTICLE 1. General Provisions
- ARTICLE 2. Customer’s Responsibility
- ARTICLE 3. Contractor’s General Obligations
- ARTICLE 4. Contractor’s Personnel
- ARTICLE 5. Contract Price And Payment
- ARTICLE 6. The Customer’s Representative
- ARTICLE 7. Contractor’s Representative
- ARTICLE 8. Subcontractors
- ARTICLE 9. Commencement Of Work
- ARTICLE 10. Time For Completion
- ARTICLE 11. Extension Of Time For Completion
- ARTICLE 12. Program
- ARTICLE 13. Rate Of Progress
- ARTICLE 14. Liquidated Damage On Delay
- ARTICLE 15. Ownership Of Facility
- ARTICLE 16. Operation And Maintenance Manuals
- ARTICLE 17. Liquidated Damage
- ARTICLE 18. Suspension And Termination
- ARTICLE 19. Defects Liability
- ARTICLE 20. Final Acceptance Certificate
- ARTICLE 21. Variations
- ARTICLE 22. Intellectual And Industrial Property Rights
- ARTICLE 23. Limitation Of Liability
- ARTICLE 24. Insurance
- ARTICLE 25. Force Majeure
- ARTICLE 26. Contractor’s Claim
- ARTICLE 27. Disputes And Arbitration
- ARTICLE 28. Effectiveness Of Contract
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ENGINEERING & CONSTRUCTION CONTRACT
This Agreement is entered into as of the [ ] by and between:
I. [COMPANY's NAME], a corporation organized and existing under the laws of [ ], with a principal place of business at [ ] (hereinafter referred to as “Contractor”).
II. [COMPANY's NAME], a corporation organized and existing under the laws of the [ ], with a principal place of business at [ ] (hereinafter referred to as “Customer”)
WHEREAS: [ ] is engaged in the business for Construction, Commissioning and Testing under supplier’s supervision, and Project Management activities of [ ] wind turbines generators and the related services described in Attachment 1.
WHEREAS[ ] desires to install [ ] wind turbines power generation facility as well as the related services described herein and intended to assign [ ] Corporation to perform the engineering, procurement and construction at [ ].
Now, therefore, in consideration of the mutual promises stated herein, the Parties agree as follows:
ARTICLE 1. General Provisions
The following words and expressions shall have the meanings as stated except where the context requires otherwise.
1.1.1. “Conditions of Contract” : means Clause 1 to 32 inclusive of this document.
1.1.2. “Contract”: means the Contract Agreement, the Conditions of Contract, and any other documents which are listed and attached in the Contract Agreement.
1.1.3. “Contract Price”: means the sum specified in Clause 5.0 herein, subject to such additions and adjustments thereto or deductions there from as may be made in accordance with the Contract.
1.1.4. “Contractor”: means [ ] Corporation.
1.1.5. “Contractor’s Documents”: means all documents or information supplied by the Contractor to the Customer under the Contract, including those provided by the Supplier
1.1.6. “Contractor’s Equipment”: means all machinery, apparatus, materials, vehicles and other things required for the design, associated documentation, construction, commissioning, testing and other performances as well as provision of the Work, including the remedying of defects, Temporary Work, or any of them as appropriate as well as those special installation tools lent by the Supplier in connection with the initial installation of the Facility.
1.1.7. “Contractor’s Representative”: means the person named by the Contractor in the Contract or appointed from time to time by the Contractor, who acts on behalf of the Contractor.
1.1.8. “Country”: means the country in which the Site is located, where the Permanent Work are to be executed.
1.1.9. “Customer”: means [ ] Corporation
1.1.10. “Supplier”: means [ ] Co., Ltd, its associated companies and branches who fabricate and supply said [ ] wind turbine generator
1.1.11. “Customer’s Representative”: means the person appointed by the Customer from time to time to act as Customer’s Representative for the purpose of the Contract, and who acts in that capacity on behalf of the Customer.
1.1.12. “Customer’s Requirements”: means the associated documents required by the Customer, as included in the Contract, and any additions and modifications to such documents in accordance with the Contract. Such documents specify the purpose, scope, construction, commissioning, testing and technical criteria for the Work.
1.1.13. “Day”: means a calendar day of the Gregorian Calendar.
1.1.14. “Defect Liability Period”: means the period from the Provisional Acceptance Date until the expiry of [ ] months.
1.1.15. “Dispute”: means any dispute, difference or claim arising out of or in connection with the Contract or the Work before or after Defects Liability Period or termination of the Contract.
1.1.16. “Final Acceptance Certificate”: means the certificate issued under Clause 22.0 herein.
1.1.17. “Force Majeure”: means the events as defined in Clause 28.0 herein.
1.1.18. “Performance Guarantees”: means the documents so named (if any), as included in the Contract, including guarantees to the performance of the Facility
1.1.19. “Services”: means technical advisory services for installation and commissioning of the Facility, including that provided by the Supplier.
1.1.20. “Work”: means the work for the construction , project management of planning, associated documentation, commissioning, testing activities of [ ] wind turbine generator, under supplier’s supervision, including Contractor’s Equipment and the related services, whatever at the Site or not, temporary or permanent, to be performed or provided by the Contractor under the Contract.
1.1.21. “Facility”: means [ ] wind turbine generator and the related services
1.1.22. “Provisional Acceptance Certificate”: means a certificate issued under Clause 19.0 herein.
1.1.23. “Site”: means the land and other places upon which the facility is to be constructed, and such other land or places as may be specified in the Contract as forming part of the Site.
1.1.24. “Temporary Work”: means all temporary work of every kind required on Site for the planning, construction, commissioning , testing and completion of the Permanent Work and the remedying of the defect.
1.1.25. “Time for Completion”: means the time for completing the Work under Clause 11.0 herein, which shall be [ ] days after Commencement Date, or extended under Clause 12.0 herein.
1.1.26. “Variation”: means any omission from, addition to or other change whatsoever to the Work which is instructed and approved by the Customer pursuant to Clause 24.0 herein.
1.1.27. “Special Conditions”: means all the conditions, as described in the attached documents, set forth by the Supplier in connection with the supply of the Facility.
In the Contract, except where the context requires otherwise:
1.2.1. Table of contents, heading and recitals are inserted for convenience only and shall not constitute a part of the Contract, nor affect its interpretation.
1.2.2. Words and expressions in the singular include the plural and vice versa.
1.2.3. Words and expressions importing one gender include all genders.
1.2.4. References to “include”, “includes”, “including” and the like shall be construed as if followed by the words ”but without limitation”.
1.2.5. Provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing.
1.2.6. “Written” or “writing” means hand-written, type-written, printed or electronically made resulting in a permanent record.
Wherever these provisions provide for the giving or issuing of approvals, certificates, consents, notices and requests, these communications shall be:
1.3.1. In writing and delivered by hand, sent by airmail post, special courier, facsimile or electronic data interchange to the address of the relevant Party as stated in the Contract.
1.3.2. Any notice delivered by hand or sent by facsimile or electronic data interchange shall be to have been delivered on the date of its dispatch.
1.3.3. Any notice sent by airmail post or special courier shall be deemed to have been delivered [ ] days after dispatch.
1.3.4. Either Party may by [ ] days notice to the other Party in writing change its address for receipt of such notices.
1.4. Laws and Language
1.4.1. The Contract shall be governed by and construed in accordance with the laws of Singapore.
1.4.2. The Contract is written in, and shall be construed and interpreted in, the English language.
1.5. Priority of Documents
The documents forming the Contract are to be taken as mutually explanatory of one another. For the purpose of interpretation, the priority of the documents shall be in accordance with the following sequence:
1.5.1. The Contract Agreement.
1.5.2. The Conditions of Contract.
1.5.3. Contractor’s Requirements.
1.5.4. Work procedures.
1.5.5. Any other documents forming part of the Contract.
1.6. Care and Supply of Documents
1.6.1. Each of the Contractor’s Documents shall be in the custody and care of the Contractor, unless and until taken over by the Customer. Unless otherwise stated in the Contract, the Contractor shall supply to the Customer 2 copies of each of the Contractor’s Documents.
1.6.2. The Contractor shall keep, on the Site, a copy of the Contract and copies of other document required by the Customer. The Customer’s Representative shall have the right to access to all these documents at all reasonable times.
Both Parties shall treat the details of the Contract as private and confidential, except to the extent necessary to carry out obligations under it or to comply with applicable Laws.
1.8. Customer’s Use of Contractor’s Documents
1.8.1. As between the Parties, the Contractor shall retain the copyright and other intellectual property rights in the Contractor’s Documents and other design documents made by (or on behalf of) the Contractor.
1.9. Contractor’s Use of Customer’s Documents
1.9.1. As between the Parties, the Customer shall retain the copyright and other intellectual property rights in the Customer’s Requirements and other documents made by (or on behalf of) the Customer. The Contractor may, at his cost, copy, use, and obtain communication of these documents for the purposes of the Contract.
1.9.2. They shall not, without the Customer’s consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract.
ARTICLE 2. Customer’s Responsibility
2.1. The Customer shall provide the following within the reasonable time agreed by the both Parties:
2.1.1. any data as may be reasonably required by the Contractor for the performance of its contractual obligations.
2.1.2. arrange with the relevant utilities to provide continuous power and to continuously accept power generated by the Units prior to the dates specified in the Contract.
2.1.3. provide all environmental and use permits, and all other permits, licenses or easements necessary for the operation of the Facility.
2.2. ensure the work and its plan, procurement, construction, commission and test comply with the local laws.
ARTICLE 3. Contractor’s General Obligations
3.1. The Contractor shall plan, procure, construct, commission, test and complete the Work in accordance with the Contract, and shall remedy any defects in the Work by the Performance Guarantees. When completed, the Work shall be fit for the intended purposes as defined in the Contract.
3.2. The Contractor represents that it has entered into this Contract on the basis of having fully examined and understood the data relating to the Work provided by the Customer, and investigated and satisfied itself with all the information relating to the Site, its surroundings and the local conditions.
3.3. The Contractor shall exercise due diligence be to check all information used in the Work, including but not limited to the information provided by the Customer. To their best knowledge, the Contractor shall be deemed to have satisfied itself that all such information is correct and complete.
3.4. The Contractor shall give all notices, pay all taxes, duties and fees, and obtain the permits, approvals and/or licenses from all government authorities in the Country, which are required for the performance of the Contract, including but not limited to visas for the Contractor’s and its subcontractor’s personnel.
3.5. The Contractor shall prepare all Contractor’s Documents, which shall comprise the technical documents specified in the Customer’s Requirements, documents required to satisfy all regulatory approvals, As-built documents and Operation & Maintenance Manuals, which may also be provided by the supplier, and shall also prepare any documents necessary to instruct the Contractor’s personnel.
3.5.1. Unless otherwise stated in the Customer’s Requirements, all Contractor’s documents shall be submitted to Customer for review, each review period shall not exceed [ ] days, calculated from the date on which the Customer receives Contractor’s Documents and the Contractor’s notice. The notice shall state that the Contractor’s Documents are considered ready for review and for use.
3.5.2. Any such review or approval by the Customer shall not relieve the Contractor from any obligation or responsibility under the Contract
3.6. Throughout the design and execution of the Work, and as long thereafter as is necessary to fulfill the Contractor’s obligations, the Contractor shall provide all necessary superintendence to plan, arrange, direct, manage, inspect and test the Work.
3.7. The Contractor shall, with assistance of the supplier, carry out the training of Customer’s Personnel at the cost specified by the supplier in the operation and maintenance of the Work to the extent specified in the Customer’s Requirements.
3.8. The Contractor shall be responsible for all relevant safety, health and environmental matters during its performance of the Work, and shall take all reasonable measures to ensure that it and its subcontractors provide and maintain safe and environmentally sound workplaces wherever their activities are carried out.
3.9. Unless otherwise stated in the Contract:
3.9.1. The Contractor shall give the Customer not less than [ ] days’ notice of the date on which any major item of Equipment will be delivered to the Site.
3.9.2. The Contractor shall be responsible for packing, loading, transporting, receiving, unloading, storing and protecting all Equipment and other things required for the Work;
3.9.3. The Contractor shall indemnify and hold the Customer harmless against and from all damages, losses and expenses (including legal fees and expenses) resulting from the transport of Equipment, and shall negotiate and pay all claims arising from their transport.
3.10. Monthly progress reports shall be prepared by the Contractor and submitted to the Customer within [ ] days after the last day of the preceding month.
3.10.1. The contents of the Report shall be proposed by the Contractor and agreed by the Customer before the first submission of the Report.
3.11. The Contractor shall confine his operations to the Site, and to any additional areas, which may be obtained by the Contractor and agreed by the Customer as working areas. The Contractor shall take all necessary precautions to keep Contractor’s Equipment and Contractor’s Personnel within the Site and these additional areas, and to keep them off adjacent land.
3.11.1. During the execution of the Work, the Contractor shall keep the Site free from all unnecessary obstruction, and shall store or dispose of any Contractor’s Equipment or surplus materials. The Contractor shall clear away and remove from the Site any wreckage, rubbish and Temporary Work which are no longer required.
3.11.2. Upon the issuance of the Provisional Acceptance Certificate for the Work, the Contractor shall leave the Site and the Work in a clear and safe condition. However, the Contractor may retain on Site, during the Defect Liability Period, such Equipment as are required for the Contractor to fulfill obligations under the Contract.
3.12. All fossils, coins, articles of value or antiquity, and structures and other remains or items of geological or archaeological interest found on the Site shall be placed under the care and authority of the Customer.
ARTICLE 4. Contractor’s Personnel
4.1. The Contractor’s Personnel shall be appropriately qualified, skilled and experienced in their respective trades or occupations. The Customer may advise the Contractor to remove (or cause to be removed) any person employed on the Site or Work, including the Contractor’s Representative if applicable, who:
4.1.1. Fails to conform with any provisions of the Contract, or
4.1.2. Persists in any conduct, which is prejudicial to safety, health, or the protection of the environment.
4.2. The Contractor shall at all times take all reasonable precautions to prevent any unlawful, riotous or disorderly conduct by or amongst the Contractor’s Personnel, and to preserve peace and protection of persons and property on and near the Site.
ARTICLE 5. Contract Price And Payment
5.1. Contract Price
The Customer shall pay to the Contractor, as full and final compensation and consideration for the Contractor’s complete performance of its obligations under and in accordance with the Contract, the sum as follows:
5.1.1. Amount Detail:
(a) 1st phase [ ] excluding VAT applicable in Vietnam.
(b) 2st phase [ ] excluding VAT applicable in Vietnam.
5.1.2. The implementation for phase 2 will be subject to the performance of the contractor
5.1.3. Scope of Works: engineering, construction including associated documentation of [ ] wind turbine generator for phase 1 on behalf of the Customer, shipping, transport, installation, assembly, commissioning and test of the facility and the Work.
5.1.4. Except in the event of Variations or as otherwise provided in the Contract, the Contract Price shall be a firm lump-sum all-inclusive amount.
Payment shall be made as set forth in the attached payment schedule without setoff of any kind:
5.2.1. For those payments tied to calendar months, payments shall be due and payable on the [ ]th day of the calendar month as indicated in the Payment Schedule, remitted via wire transfer. If the [ ]th day of the month falls on a weekend or holiday, the payment shall be due on the next business day after the [ ]th day. Wire transfer instructions shall be provided on each invoice.
5.2.2. For those payments tied to milestones, invoices shall be issued on completion of the milestone and payment shall be due and payable net [ ] days from the date of the Contractor’s invoice. It is understood and agreed if the Contractor completes the milestone in advance of what is indicated on the Payment Schedule, in no event shall the Customer be required to make payment for such milestone prior to [ ] days from the milestone date identified on the Payment Schedule.
5.2.3. All payments after the Advance Payment shall be made through an irrevocable letter of credit issued or confirmed by a first-class United States Bank or state-run bank of Vietnam against submission of agreed documents.
5.3. Down Payment
Down Payment shall be made according to the Milestone Payment Schedule as specified in Appendix 2A, 2C and 2E against Contractor’s invoice by the Customer after the Effective Date of the Contract.
5.4. Milestone Payments
5.4.1. The documentary Letter of Credit shall be made for WTG with service supply according to the Milestone against Contractor’s invoice according to the milestone as specified in TNP Milestone Payment Schedule. The Contractor shall submit an Invoice to the Customer, in a form approved by the Customer showing in details the amount to which the Contractor considers himself to be entitled, together with supporting documents, which shall include the relevant monthly progress report to be submitted by the Contractor and approved by the Customer.
5.4.2. Milestone Payments shall be paid within [ ] days after the Customer’s receipt of the invoice.
5.5 Bank Account
Payment of the amount due shall be made separately into [ ] payments methods, by wire and by Letter of Credit. The banking account designated by the Contractor described below:
Contractor’s Bank Detail:
Bank: [ ].
NO. [ ].
Swift Code: [ ]
Account No. [ ]
Company Name: [ ].
5.5. Banking Charges
All banking charges incurred in the country of the Contractor shall be borne and paid by the Contractor. All banking charges incurred in the country of the Customer or, in a third country requested by the Customer, shall be borne and paid by the Customer.
ARTICLE 6. The Customer’s Representative
6.1. The Customer may appoint a Customer’s Representative to act on his behalf under the Contract. In this event, he shall give notice to the Contractor of the name, address, duties and authorities of the Customer’s Representative.
If the Customer wishes to replace any person appointed as Customer’s Representative, the Customer shall give the Contractor not less than [ ] days’ notice of the replacement’s name, address, duties and authority, and of the date of appointment.
ARTICLE 7. Contractor’s Representative
7.1. The Contractor shall appoint the Contractor’s Representative and shall give him all authority necessary to act on the Contractor’s behalf under the Contract.
7.2. The Contractor shall not, without the prior consent of the Customer, revoke the appointment of the Contractor’s Representative or appoint a replacement.
7.3. The Contractor’s Representative shall be fluent in the language for communications defined in Clause 1.4 herein.
ARTICLE 8. Subcontractors
8.1. The Contractor shall be entitled to subcontract the part or the whole of the Work.
8.2. The Contractor shall ensure that the provisions of all subcontracts are consistent with the Contract and are such as shall enable the Contractor to comply with its obligations under or arising from the Contract.
8.3. The Contractor shall ensure that all subcontractors shall be appropriately qualified, skilled and experienced to, and that they shall, design, execute and otherwise perform and provide the Work subcontracted to him in accordance with the Contract.
8.4. The Contractor shall be liable and responsible for any act, omission, neglect or default of any Subcontractor, its agents and employees as fully as if it were the Contractor’s own.
ARTICLE 9. Commencement Of Work
9.1. Unless otherwise stated in the Contract Agreement:
9.1.1. The Customer shall give the Contractor not less than [ ] days notice of the Commencement Date; and
9.1.2. The Commencement Date shall be within [ ] days after the date on which the Contract comes into full force and effect as set out in Clause 31 herein.
9.2. The Contractor shall commence the Work as soon as is reasonably practicable after the Commencement Date, and shall then proceed with the Work with due expedition and without delay.
ARTICLE 10. Time For Completion
The Contractor shall complete the whole of the Work within the Time for Completion as specified in the Contract Agreement, including completion of all work in accordance with the Contract as being required for the Work to be considered to be completed for the purposes of Provisional Acceptance under the Contract.
ARTICLE 11. Extension Of Time For Completion
11.1. The Contractor shall be entitled to an extension of the Time for Completion if and to the extent that completion of the Work is or will be delayed by any of the following causes:
11.1.1. A Variation.
11.1.2. Any delay, impediment or prevention, which is attributable other than the contractor’s reasons.
11.2. If the Contractor considers himself to be entitled to an extension of the Time for Completion, the Contractor shall give notice to the Customer in accordance with Clause 29.0 herein.
ARTICLE 12. Program
12.1. The Contractor shall submit a time Program to the Customer within [ ] days after the Commencement Date. The Contractor shall also submit a revised Program whenever the previous Program is inconsistent with actual progress or with the Contractor’s obligations. Each Program shall include the order in which the Contractor intends to carry out the Work, including the anticipated timing of each major stage of the Work.
12.2. Unless the Customer, within [ ] days after receiving the Program, gives notice to the Contractor stating the extent to which it does not comply with the Contract, the Contractor shall proceed in accordance with the Program, subject to his other obligations under the Contract.
ARTICLE 13. Rate Of Progress
If at any time:
13.1. Actual progress is too slow to complete within the Time for Completion, and/or
13.2. Progress has fallen (or will fall) behind the current Program under Clause 13.0 above other than as a result of a cause listed in Clause 12 above, then the Customer may instruct the Contractor to submit a revised program and supporting report describing the revised methods which the Contractor proposes to adopt in order to expedite progress and complete within the Time for Completion.
13.3. Unless the Customer notified otherwise, the Contractor shall adopt these revised methods, which may require increase in the working hours and/or in the numbers of Contractor’s Personnel and/or Equipment, at the risk and cost of the Contractor.
ARTICLE 14. Liquidated Damage On Delay
If the Time for Completion as set out in Clause 11.0 or the Extended Time for Completion as set out in Clause 12.0 can not be achieved due to reasons not attributable to the Customer, the Contractor shall pay the Liquidated Damage (not a penalty) on delay to the Customer as a compensation for the damage and loss suffered by the Customer due to such default. This Liquidated Damage shall be calculated in an amount stated below:
14.1. The Contractor’s aggregate liability for Liquidated Damages on delay shall not exceed [ ] percent ([ ]%) of the Contract Price.
14.2. However, if the wind values are outside of operating range specified in supplier’s Technical Specification and such conditions prevent the Contractor from achieving the Facility completion, the resulting delay shall be considered an Excusable Delay.
14.3. The payment of Liquidated Damage shall not relieve the Contractor from his obligation to complete the Work, or from any other duties, obligations or responsibilities, which he may have under the Contract.
ARTICLE 15. Ownership Of Facility
15.1. Each item of Facility shall become the property of the Customer at whichever is the earlier of the following times, free from liens and other encumbrances:
15.1.1. When it is delivered to the Site;
15.1.2. When the Contractor is entitled to payment of the value of the Facility under the Contract.
ARTICLE 16. Operation And Maintenance Manuals
[ ] months prior to commencement of the Commissioning, the Contractor shall supply to the Customer provisional operation and maintenance manuals in sufficient detail for the Customer to operate and maintain the Facility.
ARTICLE 17. Liquidated Damage
The Contractor’s aggregate liability for all forms of liquidate damages provided in this Contract shall not exceed [ ] percent ([ ]%) of the Contract’s Price.
ARTICLE 18. Suspension And Termination
18.1. At any time, and from time to time, the Customer may by written notice require the Contractor to suspend the performance of the Work. If by virtue of a suspension order given by the Customer, otherwise than by reason of the Contractor’s default or breach of the Contract, the Contractor’s performance of the Work has been suspended for an aggregate period of more than [ ] days, the Customer shall bear the warehouse charge for the period of suspension in excess of the [ ] days and an equitable extension of the Time for Completion shall be determined by the Customer.
18.2. The Customer shall be entitled to suspend the Work if the Contractor is in default in performance of any of its obligations under the Contract, and such default has continued for [ ] days after the Customer’s written notice to that effect.
18.3. The Customer may terminate the Work under this Contract at any time solely for the convenience of the Customer by giving written notice to the Contractor. Such termination shall become effective immediately after delivery of the notice to the Contractor or such later date as specified in the said notice.
18.4. Upon receipt of the notice of termination under Clause 20.3 above, the Contractor shall either immediately or upon the date specified in the notice of termination:
18.4.1. cease all further work, except for such work as the Customer may specify in the notice for the sole purpose of protecting the life or property or for the safety of the Work;
18.5. In the event of termination of the Contract under Clause 20.3 above, the Customer shall pay to the Contractor:
18.5.1. the portion of the Contract Price applicable to that part of the Work that have been properly performed prior to the date of termination;
18.6. The Customer may, without prejudice to any other rights or remedies under the
18.6.1. Contract and at its sole option, terminate the Work under this Contract, and expel the Contractor from the Site, by giving a notice of termination to the Contractor referring to this Clause and its reasons for termination, if the Contractor:
(a) has without reasons failed to commence the Work promptly or has suspended the progress for more than [ ] days after receiving a written instruction to proceed from the Customer; or
(b) has abandoned or repudiated the Contract; or
18.6.2. Then, the Customer may give a notice to the Contractor stating the nature of the default, and requiring the Contractor to remedy the same. If the Contractor fails to remedy or take steps to remedy or explain the same within [ ] days of its receipt of such notice, then the Customer may terminate the Work under the Contract by giving a notice of termination to the Contractor referring to this Clause. Such termination shall not release the Contractor from any of its obligations or liabilities under the Contract with respect to work already performed.
18.7. Upon receipt of the notice of termination under Clause 20.6 above, the Contractor shall either immediately or upon such date as is specified in the notice of termination:
(a) cease all further work, except for such work as the Customer may specify in the notice for the sole purpose of protecting the life or property or for the safety of the Work; and
(b) terminate all subcontracts, except those to be assigned to the Customer to the extent required by the Customer.
18.8. In the event of termination of Contract under Clause 20.6 above:
18.8.1. The Customer may, to the exclusion of any right of the Contractor over the same, take over and use without payment to the Contractor any Construction Equipment owned by the Contractor on the Site for such reasonable period as the Customer considers expedient for the execution and completion of the Work.
18.8.2. Subject to item (c) below, the Contractor shall be entitled to be paid the Contract Price attributable to the Work executed as of the date of termination and the value of any unused or partially used materials on the Site. Any sums due to the Customer from the Contractor accruing prior to the date of termination shall be deducted from the amount to be paid to the Contractor under the Contractor.
18.8.3. If the Customer completes the Work by itself or by employing any third party, the cost of completing the Work by the Customer and any loss it may suffer by reason of the Contractor’s default shall be determined by the Customer.
ARTICLE 19. Defects Liability
19.1. The Contractor shall guarantee that all work will be of first class quality, free from defects, and shall be performed in full accordance with the Contract, including but not limited to the Customer’s Requirements, applicable standards and law as well as good international practice in the process of industry.
19.2. If the Contractor fails to provide a proposal for rectification of defects according to Clause 21.2 above, or fails to initiate corrective action, or fails to complete such corrective action within a minimum reasonable period as agreed with the Customer, the Customer shall have the right to correct, or employ others to correct the said defects.
ARTICLE 20. Final Acceptance Certificate
20.1. Performance of the Contractor’s obligations shall not be considered to have been completed until the Customer has issued the Final Acceptance Certificate to the Contractor, stating the date on which the Contractor completed his obligations under the Contract.
20.2. The Customer shall issue the Final Acceptance Certificate within [ ] days after the latest of the expiry dates of the Defects Liability Period.
ARTICLE 21. Variations
21.1. The Customer shall have the right to request and subsequently to order the Contractor from time to time during the performance of the Contract to make any change, modification, addition or deletion to, in or from the Work (hereinafter called Variation).
21.2. Within [ ] weeks from receipt by the Customer of the estimate, the Customer shall inform the Contractor of its intention whether to proceed with the Variation or not.
21.3. If the Contractor fails to timely submit the estimate stated in Clause 23.2 above, or if the Customer, after negotiation with the Contractor , can not reach an agreement on the adjustment of the Contract Price and/or the Time for Completion arising out of the Variation, the Customer Representative shall have the right to instruct in writing the Contractor to carry out the Variation pending agreement on such matters with the Contractor.
Notwithstanding any provision under this Clause above, no change, modification and/or addition to any part of the Work shall be regarded as a Variation, when any such change, modification and/or addition are required:
21.3.1. as a direct result of the Contractor’s acts or omissions; or
21.3.2. to correct failure of the Contractor to perform the Work in accordance with the Contract such as but not limited to errors, omissions, poor engineering practice, faulty design, poor workmanship or delays in performance; or
ARTICLE 22. Intellectual And Industrial Property Rights
22.1. In this Clause, “infringement” means an infringement of any patent, registered design, copying right, trade mark, trade name, trade secret or other intellectual or industrial property right relating to the Work; and “claim” means a claim alleging an infringement.
22.2. The Contractor shall indemnify and hold the Customer harmless against and from any other claim which arises out of or in relation to:
22.2.1. the Contractor’s design, manufacture, construction or execution of the Work.
22.2.2. the use of Contractor’s Equipment, or
22.2.3. the proper use of the Work.
22.3. If the Customer is entitled to be indemnified under this Clause, the Contractor may (at its cost) conduct negotiations for the settlement of the claim, and any litigation or arbitration which may arise from it.
ARTICLE 23. Limitation Of Liability
23.1. Neither Party shall be liable to the other Party for loss of use of any Work, loss of profit, loss of any contract, which may be suffered by the other Party in connection with the Contract.
ARTICLE 24. Insurance
24.1. Customer’s Insurance
Prior to Commencement of the Work, the Customer shall effect and maintain or cause to effect and maintain thereafter:
24.1.1. Construction & All Risks Insurance.
24.1.2. A Third Party Liability Insurance.
24.2 Contractor’s Insurance
Within [ ] days of the Effective Date or earlier if required pursuant to the Program, the Contractor shall effect and maintain at the Contractor’s own expense following insurances:
24.1.3. Employer’s Liability Insurance.
24.1.4. Automobile Liability Insurance.
24.2. General Requirements for Insurance
24.2.1. In this Clause, ”insuring Party” means, for each type of insurance, the Party responsible for effecting and maintaining the insurance specified in the relevant Clause.
24.2.2. Both the Customer and the Contractor shall comply with all warranties, declarations, terms, conditions, and other requirements or provisions of the insurance policies maintained by the Customer pursuant to Clause 26.1 or by the Contractor pursuant to Clause 26.2 above.
ARTICLE 25. Force Majeure
25.1 In this Clause, “Force Majeure” means an exceptional event or circumstance:
25.1.1. Which is beyond a Party’s control.
25.1.2. Which such Party could not reasonably have provided against before entering into the Contract.
25.1.3. Which, having arisen, such Party could not reasonably have avoided or overcome, and
25.1.4. Which is not substantially attributable to the other Party.
Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied:
(a) Riot, war, hostilities (whether war be declared or not), invasion, act of foreign enemies, acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any government or competent authority.
(b) Ionizing radiation or contamination by radio-activity from any nuclear fuel or from any waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component.
25.2. If a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shall give notice to the other Party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented. The notice shall be given within [ ] days after the Party became aware, or should have become aware, of the relevant event of circumstance constituting Force Majeure.
25.3. The Party or Parties affected by the event of Force Majeure shall use all reasonable endeavors to mitigate the effect thereof upon its or their performance of the Contract and to fulfill its or their obligations under the Contract.
A Party shall give notice to the other Party when it ceases to be effected by the Force Majeure.
25.4. No delay or non-performance by either party hereto caused by the occurrence of any event of Force Majeure shall:
25.4.1. constitute a default or breach of the Contract; or
25.4.2. give rise to any claim for damages or additional cost or expense incurred thereby.
25.5. The Parties shall be discharged from further performance, without prejudice to the rights of either Party in respect of any previous breach of the Contract.
ARTICLE 26. Contractor’s Claim
26.1. If the Contractor considers itself to be entitled to any extension of the Time for Completion and/or any additional payment, under or in connection with any Clause of the Contract, the Contractor shall give notice to the Customer, describing the event or circumstance giving rise to the claim. The notice shall be given within [ ] days after the Contractor becomes aware of such event or circumstance.
26.2. The requirement of this Clause is in addition to any other requirements or contractual provisions which may apply to a claim.
ARTICLE 27. Disputes And Arbitration
27.1. If a dispute arises between the Parties in connection with, or arising out of, the Contract or the execution the Work, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Customer, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration.
27.2. Any dispute, which can not be settled amicably, shall be finally settled by international arbitration, except otherwise agreed by both Parties;
27.2.1. The dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce. The number of arbitrators shall be three, two of whom shall be nominated by the respective Parties and the third shall be selected by the two arbitrators appointed by the Parties.
27.2.2. The arbitration shall be conducted in Singapore in the language for communications defined in Clause 1.4 above.
The award rendered by the arbitrators shall be final and binding upon both Parties concerned.
Arbitration may be commenced prior to or after completion of the Work. The obligations of the Parties shall not be altered by reason of any arbitration being conducted during the progress of the Work.
ARTICLE 28. Effectiveness Of Contract
This Contract shall be effective and legally binding immediately after the occurrence of the following:
28.1. Signature hereof by duly authorized representative of the Customer and the Contractor.
28.2. The Advance Payment according to Clause 5.3 has been duly delivered to the Contractor by the Customer.