GENE­RAL CON­DI­TI­ONS­for the SUPPLY INSTAL­LA­TI­ON OF MECHA­NI­CAL, ELEC­TRI­CAL AND ELEC­TRO­NIC PRODUCTS

PRE­AM­BLE
1. These gene­ral con­di­ti­ons shall apply when the par­ties agree in Wri­ting or other­wi­se the­re­to. Any modi­fi­ca­ti­ons of or devia­ti­ons from them must be agreed in Writing.

DEFI­NI­TI­ONS
2. In these Gene­ral Con­di­ti­ons the fol­lo­wing terms shall have the mea­nings hereun­der assi­gned to them:

- “Con­tract”: the agree­ment in Wri­ting bet­ween the par­ties con­cer­ning deli­very and per­for­mance of the Works and all appen­di­ces, inclu­ding agreed amend­ments and addi­ti­ons in Wri­ting to the said documents;

- “Con­tract Price”: the pay­ment to be made of the Works. If instal­la­ti­on is to be car­ri­ed out on a time basis and has not been com­ple­ted, the Con­tract Price for the pur­po­ses of Clau­ses 21, 43, 44 and 51 shall be the price for the Plant with the addi­ti­on of 10 per cent or of any other per­cen­ta­ge that may have been agreed by the parties;

- “Gross Negli­gence”: an act or omis­si­on imply­ing either a fail­ure to pay due regard to serious con­se­quen­ces of such an act or omission;

- “In Wri­ting”: com­mu­ni­ca­ti­on by docu­ment signed by both par­ties or by letter, fax, elec­tro­nic mail an by such other means as are agreed by the parties;

- “Plant”: the machi­nery, appa­ra­tus, mate­ri­als, artic­les, docu­men­ta­ti­on, soft­ware and other pro­ducts to be sup­pli­ed by the Con­trac­tor under the Contract;

- “Site”: the place where the Plant it to be instal­led, inclu­ding as much of the sur­roun­ding area as is neces­sa­ry for unloa­ding, sto­rage and inter­nal trans­port of the Plant an instal­la­ti­on equipment;

- “Works”: The Plant, instal­la­ti­on of the Plant and any other work to be car­ri­ed out by the Con­trac­tor under the Con­tract. If the Works shall accor­ding to the Con­tract be taken over by sepa­ra­te sec­tion inten­ded to be used inde­pendent­ly from each other, these Con­di­ti­ons shall apply to each sec­tion sepa­ra­te­ly. The term “Works” shall then refer to the sec­tion in question.

PRO­DUCT INFOR­MA­TI­ON
3. All infor­ma­ti­on and data con­tai­ned in gene­ral pro­duct docu­men­ta­ti­on and price lists shall be bin­ding only to the extent that they are by refe­rence in Wri­ting express­ly included in the Contract.

DRA­WINGS AND TECH­NI­CAL INFOR­MA­TI­ON
4. All dra­wings tech­ni­cal docu­ments rela­ting to the Works sub­mit­ted by one party to the other, prior or sub­se­quent to the for­ma­ti­on of the Con­tract, shall remain the pro­per­ty of the sub­mit­ting party.

Dra­wings, tech­ni­cal docu­ments or other tech­ni­cal infor­ma­ti­on recei­ved by one party shall not, wit­hout the con­sent of the other party, be used for any other pur­po­se than that for which they were pro­vi­ded. They may not, wit­hout the con­sent of the sub­mit­ting party, other­wi­se be used or copied, repro­du­ced, trans­mit­ted or com­mu­ni­ca­ted to a third party.

5. The Con­trac­tor shall, not later than at the date of taking over, pro­vi­de free charge infor­ma­ti­on and dra­wings which are neces­sa­ry to permit the Purcha­ser to com­mis­si­on, ope­ra­te and main­tain the Works. Such infor­ma­ti­on and dra­wings shall be sup­pli­ed in the number of copies agreed upon or at least one copy of each. The Con­trac­tor shall not be obli­ged to pro­vi­de manu­fac­tu­ring dra­wings for the Plant or for spare parts.

TESTS BEFORE SHIP­MENT
6. Tests before ship­ment of the Plant pro­vi­ded for in the Con­tract shall, unless other­wi­se agreed, be car­ri­ed out at the place of manu­fac­tu­re during normal working hours.

If the Con­tract does not spe­ci­fy the tech­ni­cal requi­re­ments, the tests shall be car­ri­ed out in accordance with gene­ral prac­ti­ce in the appro­pria­te branch of indus­try con­cer­ned in the coun­try of manufacture.

7. The Con­trac­tor shall notify the Purcha­ser In Wri­ting of these tests in suf­fi­ci­ent time to permit the Purcha­ser to be repre­sen­ted at the tests. If the Purcha­ser is not repre­sen­ted, the test report shall be sent to the Purcha­ser and shall be accept­ed as accurate.

8. If the tests show the Plant not to be in accordance with the Con­tract, the Con­trac­tor shall wit­hout delay remedy any defi­ci­en­ci­es in order to ensure that the Plant com­pli­es with the Con­tract. New tests shall then be car­ri­ed out at the Purchaser’s request, unless the defi­ci­en­cy was insignificant.

9. The Con­trac­tor shall bear all costs for tests before ship­ment of the Plant. The Purcha­ser shall howe­ver bear all tra­vel­ling and living expen­ses for his repre­sen­ta­ti­ves in con­nec­tion with such tests.

PRE­PA­RA­TO­RY WORK AND WORKING CON­DI­TI­ONS
10. The Con­trac­tor shall in good time pro­vi­de dra­wings show­ing the manner in which the Plant is to be instal­led, tog­e­ther with all infor­ma­ti­on requi­red for pre­pa­ring sui­ta­ble foun­da­ti­ons, for pro­vi­ding access for the Plant and any neces­sa­ry equip­ment to the Site and for making all neces­sa­ry con­nec­tions to the Works.

11. The Purcha­ser shall in good time under­ta­ke pre­pa­ra­to­ry work to ensure that the con­di­ti­ons neces­sa­ry for instal­la­ti­on of the Plant and for the cor­rect ope­ra­ti­on of the Works are ful­fil­led. This shall not apply to pre­pa­ra­to­ry work which accor­ding to the Con­tract shall be per­for­med by the Contractor.

12. The pre­pa­ra­to­ry work refer­red to in Clause 11 shall be car­ri­ed out by the Purcha­ser in accordance with the dra­wings and infor­ma­ti­on pro­vi­ded by the Con­trac­tor under Clause 10. In any case the Purcha­ser shall ensure that the foun­da­ti­ons are struc­tu­ral­ly sound. If the Purcha­ser is respon­si­ble for trans­port­ing the Plant to the Site, he shall ensure that the Plant Is on the Site before the agreed date for start­ing the instal­la­ti­on work.

13. If an error or omis­si­on in the dra­wings or infor­ma­ti­on refer­red to in Clause 10 is dis­co­ver­ed by the Con­trac­tor or noti­fied to him In Wri­ting before expiry of the period refer­red to in Clause 59, the costs of any neces­sa­ry reme­di­al work shall be borne by the Contractor.

14. The Purcha­ser shall ensure that:
a) the Contractor’s per­son­nel are able to start work in accordance with the agreed time sche­du­le and to work during normal working hours. Pro­vi­ded that the Purcha­ser has been given notice In Wri­ting in reasonable time, work may be per­for­med out­side normal working hours to the extent deemed neces­sa­ry by the Contractor;

b) he has, in good time before instal­la­ti­on is star­ted, infor­med the Con­trac­tor In Wri­ting of all rele­vant safety regu­la­ti­ons in force at the Site. Instal­la­ti­on shall not be car­ri­ed out in unhe­alt­hy or dan­ge­rous sur­roun­dings. All the neces­sa­ry safety and pre­cau­tio­na­ry mea­su­res shall have been taken before instal­la­ti­on is star­ted and shall be maintained;

c) the Contractor’s per­son­nel are able to obtain sui­ta­ble and con­ve­ni­ent board and lodging in the neigh­bor­hood of the Site and have access to inter­na­tio­nal­ly accep­ta­ble hygie­ne faci­li­ties and medi­cal services;

d) he has made available to the Con­trac­tor free of charge at the proper time on the Site all neces­sa­ry cranes, lif­ting equip­ment and equip­ment for trans­port on the Site, auxi­lia­ry tools, machi­nery, mate­ri­als and sup­pli­es (inclu­ding fuel, oils, grease and other mate­ri­als, gas, water, elec­tri­ci­ty, steam, com­pres­sed air, hea­ting, light­ing, etc.), as well as the mea­su­ring and test­ing instru­ments of the Purcha­ser available on the Site. The Con­trac­tor shall spe­ci­fy In Wri­ting his requi­re­ments con­cer­ning such cranes, lif­ting equip­ment, mea­su­ring and test­ing instru­ments and equip­ment for trans­port on the Site at the latest one month before the agreed date for start­ing the instal­la­ti­on work;

e) he has made available to the Con­trac­tor free of charge suf­fi­ci­ent offices on the Site, equip­ped with tele­pho­ne and access to the Internet;

f) he has made available to the Con­trac­tor free of charge neces­sa­ry sto­rage faci­li­ties, pro­vi­ding pro­tec­tion against theft and dete­rio­ra­ti­on of the Plant, the tools and equip­ment requi­red for instal­la­ti­on and the per­so­nal effects of the Contractor’s personnel;

g) the access routes to the Site are sui­ta­ble for the requi­red trans­port of the Plant and the Contractor’s equipment.

15. Upon the Contractor’s request in good time, the Purcha­ser shall make available to the Con­trac­tor, free of charge, such labour and ope­ra­tors as may be spe­ci­fied in the Con­tract or as may reason­ab­ly be requi­red for the pur­po­se of the Con­tract. The per­sons made available by the Purcha­ser under this clause shall pro­vi­de their own tools. The Con­trac­tor shall not be liable for such labour pro­vi­ded by the Purcha­ser or for any acts or omis­si­ons of the per­sons concerned.

16. If the Con­trac­tor so requi­res, the Purcha­ser shall give all neces­sa­ry assis­tance requi­red for the import and re-export of the Contractor’s equip­ment and tools, inclu­ding assis­tance with cus­toms for­ma­li­ties. The assis­tance as such shall be pro­vi­ded free of charge.

17. The Purcha­ser shall give all neces­sa­ry assis­tance to ensure that the Contractor’s per­son­nel obtain, in good time, visas and any offi­ci­al entry, exit or work per­mits and (if neces­sa­ry) tax cer­ti­fi­ca­tes requi­red in the Purchaser’s coun­try, as well as access to the Site. The assis­tance as such shall be pro­vi­ded free of charge.

18. The par­ties shall, no later than when the Con­trac­tor gives notice that the Plant is ready for dis­patch from the place of manu­fac­tu­re, each appoint a repre­sen­ta­ti­ve In Wri­ting to act on their behalf during the work on the Site.

The repre­sen­ta­ti­ves shall be pre­sent on or near the Site during working hours. Unless other­wi­se spe­ci­fied in the Con­tract, the repre­sen­ta­ti­ves shall be aut­ho­ri­zed to act on behalf of their respec­ti­ve party in all mat­ters con­cer­ning the instal­la­ti­on work. Whe­re­ver these Gene­ral Con­di­ti­ons sti­pu­la­te that a notice shall be given In Wri­ting, the repre­sen­ta­ti­ve shall always be aut­ho­ri­zed to recei­ve such notice on behalf of the party he represents.

The par­ties under­ta­ke not to poach any staff from the other party direct­ly or indi­rect­ly during and up to two years after the end of the respec­ti­ve con­tract, nor to employ the coope­ra­ti­on part­ners direct­ly. For each case of vio­la­ti­on of this pro­vi­si­on, Sec­tion I.3 first sen­tence, the vio­la­ting party shall pay the other party a con­trac­tu­al penal­ty of EUR 50,000 per person.

PURCHASER’S DEFAULT
19. If the Purcha­ser anti­ci­pa­tes that he will be unable to fulfil in time his obli­ga­ti­ons neces­sa­ry for car­ry­ing out instal­la­ti­on, inclu­ding com­ply­ing with the con­di­ti­ons spe­ci­fied in Clau­ses 11, 12 and 14 ‑17, he shall for­thwi­th notify the Con­trac­tor In Wri­ting, sta­ting the reason and, if pos­si­ble, the time when he will be able to carry out his obligations.

20. Wit­hout pre­ju­di­ce to the Contractor’s rights under Clause 21, if the Purcha­ser fails to fulfil, cor­rect­ly and in time, his obli­ga­ti­ons neces­sa­ry for car­ry­ing out instal­la­ti­on, inclu­ding to comply with the con­di­ti­ons spe­ci­fied in Clau­ses 11, 12 and 14–17, the fol­lo­wing shall apply:

a) The Con­trac­tor may at his own dis­cre­ti­on choose to carry out or employ a third party to carry out the Purchaser’s obli­ga­ti­ons or other­wi­se take such mea­su­res as are appro­pria­te under the cir­cum­s­tances in order to avoid or alle­via­te the effects of the Purchaser’s default.

b) The Con­trac­tor may sus­pend in whole or in part his per­for­mance of the Con­tract. He shall for­thwi­th notify the Purcha­ser In Wri­ting of such sus­pen­si­on.
c) If the Plant has not yet been deli­ver­ed to the Site, the Con­trac­tor shall arran­ge for sto­rage of the Plant at the Purchaser’s risk. The Con­trac­tor shall also, if the Purcha­ser so requi­res, insure the Plant.

d) The Purcha­ser shall pay any part of the Con­tract Price which, but for the default, would have become due.

e) The Purcha­ser shall reim­bur­se the Con­trac­tor for any costs not cover­ed by Clause 47 or 48, which are reason­ab­ly incur­red by the Con­trac­tor as a result of mea­su­res under a), b) or c) of this Clause.

21. If taking-over is pre­ven­ted by the Purchaser’s default as refer­red to in Clause 20 and this is not due to any such cir­cum­s­tance as men­tio­ned in Clause 73, the Con­trac­tor may also by notice In Wri­ting requi­re the Purcha­ser to remedy his default within a final reasonable period.

If, for any reason which is not attri­bu­ta­ble to the Con­trac­tor, the Purcha­ser fails to remedy his default within such period, the Con­trac­tor may by notice In Wri­ting ter­mi­na­te the Con­tract in whole or in part. The Con­trac­tor shall then be entit­led to com­pen­sa­ti­on for the loss he suf­fers by reason of the Purchaser’s default, inclu­ding any con­se­quen­ti­al and indi­rect loss. The com­pen­sa­ti­on shall not exceed that part of the Con­tract Price which is attri­bu­ta­ble to that part of the Works in respect of which the Con­tract is terminated.

LOCAL LAWS AND REGU­LA­TI­ONS
22. The Con­trac­tor shall ensure that the Works are car­ri­ed out and are in accordance with any laws, regu­la­ti­ons and rules which are appli­ca­ble to the Works, if requi­red by the Con­trac­tor, the Purcha­ser shall pro­vi­de the rele­vant infor­ma­ti­on on these laws, regu­la­ti­ons and rules In Writing.

23. The Con­trac­tor shall carry out any varia­ti­on work neces­sa­ry to comply with chan­ges in laws, regu­la­ti­ons and rules, refer­red to in Clause 22, or in their gene­ral­ly accept­ed inter­pre­ta­ti­on, occur­ring bet­ween the date of sub­mis­si­on of the tender and taking-over. The Purcha­ser shall bear the extra costs and other con­se­quen­ces resul­ting from such chan­ges, inclu­ding varia­ti­on work.

24. If the par­ties are unable to agree on the extra costs and other con­se­quen­ces of chan­ges in laws, regu­la­ti­ons and rules, refer­red to in Clause 22, the Con­trac­tor shall be com­pen­sa­ted for any varia­ti­on work on a time basis.

VARIA­TI­ONS
25. Sub­ject to the pro­vi­si­ons of Clause 29, the Purcha­ser is entit­led to request varia­ti­ons to the scope, design and con­s­truc­tion of the Works until the Works have been taken over. The Con­trac­tor may sug­gest such varia­ti­ons In Writing.

26. Requests for varia­ti­ons shall be sub­mit­ted to the Con­trac­tor In Wri­ting and shall con­tain an exact descrip­ti­on of the variation.

27. As soon as pos­si­ble after receipt of a request for a varia­ti­on or after having hims­elf made a pro­po­sal for a varia­ti­on, the Con­trac­tor shall notify the Purcha­ser In Wri­ting whe­ther and how the varia­ti­on can be car­ri­ed out, sta­ting the resul­ting altera­ti­on to the Con­tract Price, the time for taking-over and other terms of the Contract.

The Con­trac­tor shall also give such notice to the Purcha­ser when varia­ti­ons are requi­red as a result of chan­ges in laws, regu­la­ti­ons and rules refer­red to in Clause 22.

28. If taking-over is delay­ed as a result of dis­agree­ment bet­ween the par­ties on the con­se­quen­ces of varia­ti­ons, the Purcha­ser shall pay any part of the Con­tract Price which would have become due if taking-over had not been delayed.

29. Save as pro­vi­ded in Clause 23, the Con­trac­tor shall not be obli­ged to carry out varia­ti­ons reques­ted by the Purcha­ser until the par­ties have agreed on how the varia­ti­ons will affect the Con­tract Price, the time for taking-over and other terms of the Contract.

PAS­SING OF RISK
30. The risk of loss of or damage to the Plant shall pass to the Purcha­ser in accordance with any agreed trade term, which shall be con­strued in accordance with the INCO­TERMS® in force at the date of for­ma­ti­on of the Con­tract. If no trade term has been spe­ci­fi­cal­ly agreed, deli­very of the Plant shall be Free Car­ri­er (FCA) at the place named by the Contractor.

Any risk of loss of or damage to the Works not cover­ed by the first para­graph of this Clause shall pass to the Purcha­ser on taking-over of the Works.

Any loss of or damage to the Plant and Works after the risk has passed to the Purcha­ser shall be at the risk of the Purcha­ser, unless such loss or damage results from the Contractor’s negligence.

TAKING-OVER TESTS
31. When instal­la­ti­on has been com­ple­ted taking-over tests shall, unless other­wi­se agreed, be car­ri­ed out to deter­mi­ne whe­ther the Works are as requi­red for taking-over accor­ding to the Contract.

The Con­trac­tor shall notify the Purcha­ser In Wri­ting that the Works are ready for taking-over. He shall in this notice give a date for taking-over tests, giving the Purcha­ser suf­fi­ci­ent time to prepa­re for and be repre­sen­ted at these tests.

The Purcha­ser shall bear all costs of taking-over tests. The Con­trac­tor shall howe­ver bear all costs rela­ting to his per­son­nel and his other representatives.

32. The Purcha­ser shall pro­vi­de free of charge any power, lubri­cants, water, fuel, raw mate­ri­als and other mate­ri­als requi­red for the taking-over tests and for final adjus­t­ments in pre­pa­ring for these tests. He shall also install free of charge any equip­ment and pro­vi­de any labour or other assis­tance neces­sa­ry for car­ry­ing out the taking-over tests.

33. If, after having been noti­fied in accordance with Clause 31, the Purcha­ser fails to fulfil his obli­ga­ti­ons under Clause 32 or other­wi­se pre­vents the taking-over tests from being car­ri­ed out, the tests shall be regard­ed as having been satis­fac­to­ri­ly com­ple­ted at the start­ing date for taking-over tests stated in the Contractor’s notice.

34. The taking-over tests shall be car­ri­ed out during normal working hours. If the Con­tract does not spe­ci­fy the tech­ni­cal requi­re­ments, the tests shall be car­ri­ed out in accordance with gene­ral prac­ti­ce in the appro­pria­te branch of indus­try con­cer­ned in the Purchaser’s country.

35. The Con­trac­tor shall prepa­re a report of the taking-over tests. This report shall be sent to the Purcha­ser. If the Purcha­ser has not been repre­sen­ted at the taking-over tests after having been noti­fied in accordance with Clause 31, the test report shall be accept­ed as accurate.

36. If the taking-over tests show the Works not to be in accordance with the Con­tract, the Con­trac­tor shall wit­hout delay remedy the defi­ci­en­ci­es. If the Purcha­ser so requi­res In Wri­ting wit­hout delay, new tests shall be car­ri­ed out in accordance with Clau­ses 31–35. This shall not apply when the defi­ci­en­cy was insignificant.

TAKING-OVER
37. Taking-over of the Works shall be con­side­red to take place:

a) when the taking-over tests have been satis­fac­to­ri­ly com­ple­ted or are regard­ed under Clause 33 as having been satis­fac­to­ri­ly com­ple­ted, or

b) where the par­ties have agreed not to carry out taking- over tests, when the Purcha­ser has recei­ved a Contractor’s notice In Wri­ting that the Works have been com­ple­ted, pro­vi­ded that the Works are as requi­red for taking-over accor­ding to the Contract.

Minor defi­ci­en­ci­es which do not affect the effi­ci­en­cy of the Works shall not pre­vent taking-over.

The Contractor’s obli­ga­ti­on to install the Plant at the Site is ful­fil­led when the Works are taken over pur­su­ant to this Clause 37, not­wi­th­stan­ding his obli­ga­ti­on to remedy any remai­ning minor deficiencies.

38. The Purcha­ser is not entit­led to use the Works or any part the­reof before taking-over. If the Purcha­ser does so wit­hout the Contractor’s con­sent In Wri­ting, the Works shall be deemed to have been taken over. The Con­trac­tor is then reli­e­ved of his duty to carry out taking-over tests.

39. As soon as the Works have been taken over in accordance with Clause 37 or 38, the period refer­red to in Clause 59 shall start to run. The Purcha­ser shall, at the Contractor’s request In Wri­ting, issue a cer­ti­fi­ca­te sta­ting when the Works have been taken over. The Purchaser’s fail­ure to issue a cer­ti­fi­ca­te shall not affect taking- over accor­ding to Clau­ses 37 and 38.

CONTRACTOR’S DELAY
40. If the par­ties, ins­tead of spe­ci­fy­ing the date for taking-over, have spe­ci­fied a period of time within which taking-over shall take place, such period shall start to run as soon as the Con­tract is ente­red into and all agreed pre­con­di­ti­ons to be ful­fil­led by the Purcha­ser have been satis­fied, such as offi­ci­al for­ma­li­ties, pay­ments due at the for­ma­ti­on of the Con­tract and securities.

41. If the Con­trac­tor anti­ci­pa­tes that he will not be able to fulfil his obli­ga­ti­ons for taking-over before or at the time for taking-over, he shall for­thwi­th notify the Purcha­ser the­reof In Wri­ting, sta­ting the reason and, if pos­si­ble, the time when taking-over can be expected.

If the Con­trac­tor fails to give such notice, the Purcha­ser shall be entit­led to com­pen­sa­ti­on for any addi­tio­nal costs which he incurs and which he could have avo­ided had he recei­ved such notice.

42. The Con­trac­tor shall be entit­led to an exten­si­on of the time for taking-over if delay occurs:
a) becau­se of any of the cir­cum­s­tances refer­red to in Clause 73, or

b) as a result of varia­ti­on work under Clause 23, or

c) as a result of varia­ti­ons under Clau­ses 25–29, or

d) as a result of sus­pen­si­on under Clau­ses 20, 51 or 76, or

e) by an act or omis­si­on on the part of the Purcha­ser or any other cir­cum­s­tances attri­bu­ta­ble to the Purchaser.

The exten­si­on shall be as neces­sa­ry having regard to all the rele­vant cir­cum­s­tances. This pro­vi­si­on appli­es regard­less of whe­ther the reason for the delay occurs before or after the agreed time for taking-over.

43. If the Works are not com­ple­ted at the agreed time for taking-over, the Purcha­ser shall be entit­led to liqui­da­ted dama­ges from the date on which taking-over should have taken place.

The liqui­da­ted dama­ges shall be paya­ble at a rate of 0.5 per cent of the Con­tract Price for each com­men­ced week of delay. The liqui­da­ted dama­ges shall not exceed 7.5 per cent of the Con­tract Price.

If only part of the Works is delay­ed, the liqui­da­ted dama­ges shall be cal­cu­la­ted on that part of the Con­tract Price which is attri­bu­ta­ble to such part of the Works as cannot in con­se­quence of the delay be used as inten­ded by the par­ties.
The liqui­da­ted dama­ges become due at the Purchaser’s demand In Wri­ting, but not before taking-over has taken place or the Con­tract is ter­mi­na­ted under Clause 44.

The Purcha­ser shall for­feit his right to liqui­da­ted dama­ges if he has not lodged a claim In Wri­ting for such dama­ges within six months after the time when taking-over should have taken place.

44. If the delay is such that the Purcha­ser is entit­led to maxi­mum liqui­da­ted dama­ges under Clause 43 and if the Works are still not ready for taking-over, the Purcha­ser may In Wri­ting demand com­ple­ti­on of the Works within a final reasonable period which shall not be less than one week.

If the Con­trac­tor does not com­ple­te the Works within such final period and this is not due to any cir­cum­s­tance which is attri­bu­ta­ble to the Purcha­ser, then the Purcha­ser may by notice In Wri­ting to the Con­trac­tor ter­mi­na­te the Con­tract in respect of such part of the Works as cannot in con­se­quence of the Contractor’s fail­ure be used as inten­ded by the parties.

If the Purcha­ser ter­mi­na­tes the Con­tract he shall be entit­led to com­pen­sa­ti­on for the loss he suf­fers as a result of the Contractor’s delay, inclu­ding any con­se­quen­ti­al and indi­rect loss. The total com­pen­sa­ti­on, inclu­ding the liqui­da­ted dama­ges which are paya­ble under Clause 43, shall not exceed 15 per cent of that part of the Con­tract Price which is attri­bu­ta­ble to the part of the Works in respect of which the Con­tract is terminated.

The Purcha­ser shall also have the right to ter­mi­na­te the Con­tract by notice In Wri­ting to the Con­trac­tor if it is clear from the cir­cum­s­tances that there will occur a delay in taking-over of the Works which under Clause 43 would entit­le the Purcha­ser to maxi­mum liqui­da­ted dama­ges. In case of ter­mi­na­ti­on for this reason, the Purcha­ser shall be entit­led to maxi­mum liqui­da­ted dama­ges and com­pen­sa­ti­on under the third para­graph of this Clause 44.

45. Liqui­da­ted dama­ges under Clause 43 and ter­mi­na­ti­on of the Con­tract with limi­t­ed com­pen­sa­ti­on under Clause 44 shall be the only reme­dies available to the Purcha­ser in case of delay on the part of the Con­trac­tor. All other claims against the Con­trac­tor based on such delay shall be excluded, except where the Con­trac­tor has been guilty of Gross Negligence.

PAY­MENT
46. Unless other­wi­se agreed, pay­ment shall be made within 30 days after the date of the invoice as follows:

a) when instal­la­ti­on is car­ri­ed out on a time basis:

- one third of the agreed price for the Plant at the for­ma­ti­on of the Con­tract,- one third when the Con­trac­tor noti­fies the Purcha­ser that the Plant or the essen­ti­al part of it is ready for dis­patch from the place of manu­fac­tu­re and
- the final third on arri­val of the Plant at the Site.

Pay­ment for instal­la­ti­on shall be made against month­ly invoices.

b) when instal­la­ti­on is included in the lump sum Con­tract Price:

- 30 per cent of the Con­tract Price at the for­ma­ti­on of the Con­tract,
- 30 per cent when the Con­trac­tor noti­fies the Purcha­ser that the Plant or the essen­ti­al part of it is ready for dis­patch from the place of manu­fac­tu­re,
- 30 per cent on arri­val of the Plant at the Site, the remai­ning part of the Con­tract Price on taking-over.

47. When instal­la­ti­on is car­ri­ed out on a time basis the fol­lo­wing items shall be sepa­ra­te­ly charged:

a) all tra­vel­ling expen­ses incur­red by the Con­trac­tor in respect of his per­son­nel and the trans­port of their equip­ment and per­so­nal effects (within reasonable limits) in accordance with the spe­ci­fied method and class of travel where these are spe­ci­fied in the Contract;

b) cost of board and lodging and othei living expen­ses, inclu­ding any appro­pria­te allo­wan­ces of the Contractor’s per­son­nel for each day’s absence from their homes, inclu­ding non-working days and holi­days. The daily allo­wan­ces shall be paya­ble even during inca­pa­ci­ty caused by sick­ness or accident;

c) the time worked, which shall be cal­cu­la­ted by refe­rence to the number of hours cer­ti­fied as worked in the time-sheets signed by the Purcha­ser. Over­ti­me and work on Sun­days, holi­days and at night shall be char­ged at spe­cial rates. The rates shall be as agreed in the Con­tract or, fai­ling agree­ment, as nor­mal­ly char­ged by the Con­trac­tor. Save as other­wi­se pro­vi­ded, the hourly rates cover the normal wear and tear of the Contractor’s tools and light equipment;

d) time neces­s­a­ri­ly spent on:

- pre­pa­ra­ti­on and for­ma­li­ties inci­den­tal to the out­ward and home­ward jour­neys of the Contractor’s per­son­nel,- the out­ward and home­ward jour­neys and other jour­neys to which the per­son­nel are entit­led in accordance with cur­rent law, regu­la­ti­ons or coll­ec­ti­ve agree­ments in the Contractor’s coun­try,- daily travel of the Contractor’s per­son­nel bet­ween lodgings and the Site, if it exceeds half an hour each way and there are no sui­ta­ble lodgings closer to the Site,
- wai­ting when work is pre­ven­ted by cir­cum­s­tances which are not attri­bu­ta­ble to the Contractor;

e) any expen­ses incur­red by the Con­trac­tor in accordance with the Con­tract in con­nec­tion with the pro­vi­si­on of equip­ment by him, inclu­ding where appro­pria­te a charge for the use of the Contractor’s own heavy equipment;

f) any taxes or dues levied on the invoice and paya­ble by the Con­trac­tor in the coun­try where instal­la­ti­on takes place;

g) any costs which could not reason­ab­ly be fore­seen by the Con­trac­tor and are caused by a cir­cum­s­tance which is not attri­bu­ta­ble to the Contractor;

h) any extra costs resul­ting from the appli­ca­bi­li­ty of man­da­to­ry rules of the Purchaser’s coun­try in the social field;

i) any costs, expen­ses and time spent resul­ting from extra work which is not attri­bu­ta­ble to the Contractor.

If these costs are time-rela­ted, they shall be char­ged at the rates refer­red to in this Clause 47 under c,

48. When instal­la­ti­on is to be car­ri­ed out for a lump sum, the Con­tract Price shall be deemed to include all the items men­tio­ned in Clause 47, a) through e). Any items men­tio­ned in Clause 47, f) through I), shall be deemed to be excluded from the Con­tract Price and shall the­r­e­fo­re be char­ged sepa­ra­te­ly. If these costs are time-rela­ted, they shall be char­ged at the rates refer­red to in Clause 47 under c).

49. If instal­la­ti­on is delay­ed due to a cause which is attri­bu­ta­ble to the Purcha­ser, the Purcha­ser shall com­pen­sa­te the Con­trac­tor for any resul­ting addi­tio­nal costs, inclu­ding but not limi­t­ed to:

a) wai­ting time and time spent on extra jour­neys;
b) costs and extra work resul­ting from the delay, inclu­ding remo­ving, secu­ring and set­ting up instal­la­ti­on equip­ment;
c) addi­tio­nal costs, inclu­ding costs as a result of the Con­trac­tor having to keep his equip­ment at the Site for a longer time than expec­ted;
d) addi­tio­nal costs for jour­neys and board and lodging for the Contractor’s per­son­nel;
e) addi­tio­nal finan­cing costs and costs of insu­rance;
f) other docu­men­ted costs incur­red by the Con­trac­tor as a result of chan­ges in the instal­la­ti­on programme.

If these costs are time-rela­ted, they shall be char­ged at the rates refer­red to in Clause 47 under c).

50. Wha­te­ver the means of pay­ment used, pay­ment shall not be deemed to have been effec­ted before the Contractor’s account has been irre­vo­ca­bly cre­di­ted for the amount due.

51. If the Purcha­ser fails to pay by a sti­pu­la­ted date, the Con­trac­tor shall be entit­led to inte­rest from the day on which pay­ment was due and to com­pen­sa­ti­on for reco­very costs. The rate of inte­rest shall be as agreed bet­ween the par­ties or other­wi­se 8 per­cen­ta­ge points above the rate of the main refi­nan­cing faci­li­ty of the Euro­pean Cen­tral Bank. The com­pen­sa­ti­on for reco­very costs shall be 1 per cent of the amount for which inte­rest for late pay­ment beco­mes due.

In case of late pay­ment and in case the Purcha­ser fails to give an agreed secu­ri­ty by the sti­pu­la­ted date the Con­trac­tor may, after having noti­fied the Purcha­ser In Wri­ting, sus­pend his per­for­mance of the Con­tract until he recei­ves pay­ment or, where appro­pria­te, until the Purcha­ser gives the agreed security.

If the Purcha­ser has not paid the amount due within three months, the Con­trac­tor shall be entit­led to ter­mi­na­te the Con­tract by notice In Wri­ting to the Purcha­ser and, in addi­ti­on to the inte­rest and com­pen­sa­ti­on of reco­very costs accor­ding to this Clause 51, to claim com­pen­sa­ti­on for the loss he incurs. Such com­pen­sa­ti­on shall not exceed the Con­tract Price.

RETEN­TI­ON OF TITLE
52. The Plant shall remain the pro­per­ty of the Con­trac­tor until paid for in full, inclu­ding pay­ment for instal­la­ti­on of the Plant, to the extent that such reten­ti­on of title is valid under the rele­vant law.

The Purcha­ser shall at the request of the Con­trac­tor assist him in taking any mea­su­res neces­sa­ry to pro­tect the Contractor’s title to the Plant.

The reten­ti­on of title shall not affect the pas­sing of risk under Clause 30.

LIA­BI­LI­TY FOR DAMAGE TO PRO­PER­TY BEFORE TAKING-OVER
53. The Con­trac­tor shall be liable for any damage to the Works which occurs before the risk has passed to the Purcha­ser. This appli­es irre­spec­ti­ve of the cause of the damage, unless the damage has been caused by the Purcha­ser or anyone for whom he is respon­si­ble in con­nec­tion with per­for­mance of the Con­tract. If the Con­trac­tor is not liable for the damage to the Works in accordance with this Clause, the Purcha­ser may still requi­re the Con­trac­tor to remedy the damage, be it at the Purchaser’s cost.

54. The Con­trac­tor shall be liable for damage to the Purchaser’s pro­per­ty occur­ring before taking-over of the Works only if it is proved that such damage was caused by negli­gence on the part of the Con­trac­tor or anyone for whom he is respon­si­ble in con­nec­tion with the per­for­mance of the Con­tract. The Con­trac­tor shall howe­ver under no cir­cum­s­tances be liable for loss of pro­duc­tion, loss of profit or any other con­se­quen­ti­al or indi­rect loss.

LIA­BI­LI­TY FOR DEFECTS
55. Pur­su­ant to the pro­vi­si­ons of Clau­ses 56–71, the Con­trac­tor shall remedy any defect or non­con­for­mi­ty (her­ein­af­ter termed defect(s)) in the Works resul­ting from faulty design, mate­ri­als or workmanship.

56. The Con­trac­tor shall not be liable for defects ari­sing out of mate­ri­als pro­vi­ded or a design sti­pu­la­ted or spe­ci­fied by the Purchaser.

57. The Con­trac­tor shall only be liable for defects which appear under the con­di­ti­ons of ope­ra­ti­on pro­vi­ded for in the Con­tract and under proper use of the Works.

58. The Con­trac­tor shall not be liable for defects caused by cir­cum­s­tances which arise after the risk has passed to the Purcha­ser, e.g. defects due to faulty main­ten­an­ce or faulty repair by the Purcha­ser or to altera­ti­ons car­ri­ed out wit­hout the Contractor’s con­sent In Wri­ting. The Con­trac­tor shall neither be liable for normal wear and tear nor for deterioration.

59. The Contractor’s lia­bi­li­ty shall be limi­t­ed to defects in the Works which appear within a period of one year from taking-over. If the use of the Works exceeds that which is agreed, this period shall be redu­ced pro­por­tio­na­te­ly. If taking-over has been delay­ed for reasons which are attri­bu­ta­ble to the Purcha­ser, the Contractor’s lia­bi­li­ty for defects shall not, except as stated in Clause 60, be exten­ded beyond 18 months after deli­very of the Plant.

60. When a defect in a part of the Works has been reme­di­ed, the Con­trac­tor shall be liable for defects in the repai­red or repla­ced part under the same terms and con­di­ti­ons as those appli­ca­ble to the ori­gi­nal Works for a period of one year. For the remai­ning parts of the Works the period men­tio­ned in Clause 59 shall be exten­ded only by a period equal to the period during which and to the extent that the Works could not be used as a result of the defect.

61. The Purcha­ser shall wit­hout undue delay notify the Con­trac­tor In Wri­ting of any defect which appears. Such notice shall under no cir­cum­s­tances be given later than two weeks after the expiry of the period given in Clause 59 or the exten­ded period(s) under Clause 60. where applicable.

The notice shall con­tain a descrip­ti­on of the defect.

If the Purcha­ser fails to notify the Con­trac­tor In Wri­ting of a defect within the time limits set forth in the first para­graph of this Clause, he shall lose his right to have the defect remedied.

Where the defect is such that it may cause damage, the Purcha­ser shall imme­dia­te­ly inform the Con­trac­tor In Wri­ting. The Purcha­ser shall bear the risk of damage to the Works resul­ting from his fail­ure so to notify. The Purcha­ser shall take reasonable mea­su­res to mini­mi­se damage and shall in that respect comply with ins­truc­tions of the Contractor.

62. On receipt of the notice under Clause 61 the Con­trac­tor shall at his own cost remedy the defect wit­hout undue delay, as sti­pu­la­ted in Clau­ses 55–71. The time for reme­di­al work shall be chosen in order not to inter­fe­re unneces­s­a­ri­ly with the Purchaser’s activities.

Reme­di­al work shall be car­ri­ed out at the Site, unless the Con­trac­tor deems it more appro­pria­te, having regard to the inte­rests of both par­ties, that the defec­ti­ve part or the Plant is sent to him or a desti­na­ti­on spe­ci­fied by him.

Where reme­di­al work is car­ri­ed out at the Site, Clau­ses 14- 17 and 54 shall apply correspondingly.

If the defect can be reme­di­ed by repla­ce­ment or repair of a defec­ti­ve part and if dis­mant­ling and re-instal­la­ti­on of the part do not requi­re spe­cial know­ledge, the Con­trac­tor may demand that the defec­ti­ve part is sent to him or a desti­na­ti­on spe­ci­fied by him. In such case the Con­trac­tor shall have ful­fil­led his obli­ga­ti­ons in respect of the defect when he deli­vers a duly repai­red part or a part in repla­ce­ment to the Purchaser.

63. The Purcha­ser shall at his own expen­se pro­vi­de access to the Works and arran­ge for any inter­ven­ti­on in equip­ment other than the Works, to the extent that this is neces­sa­ry to remedy the defect.

64. Unless other­wi­se agreed, neces­sa­ry trans­port of the Plant or parts the­reof to and from the Con­trac­tor in con­nec­tion with the reme­dy­ing of defects for which the Con­trac­tor is liable shall be at the risk and expen­se of the Con­trac­tor. The Purcha­ser shall follow the Contractor’s ins­truc­tions regar­ding such transport.

65. Unless other­wi­se agreed, the Purcha­ser shall bear any addi­tio­nal costs which the Con­trac­tor incurs for reme­dy­ing the defect caused by the Works being loca­ted in a place other than the Site.

66. Defec­ti­ve parts which have been repla­ced shall be made available to the Con­trac­tor and shall be his property.

67. If the Purcha­ser has given such notice as men­tio­ned in Clause 61 and no defect is found for which the Con­trac­tor is liable, the Con­trac­tor shall be entit­led to com­pen­sa­ti­on for the costs he incurs as a result of the notice.

68. If the Con­trac­tor does not fulfil his obli­ga­ti­ons under Clause 62, the Purcha­ser may by notice In Wri­ting fix a final reasonable period for ful­film­ent of the Contractor’s obli­ga­ti­ons, which shall not be less than one week.

If the Con­trac­tor fails to fulfil his obli­ga­ti­ons within such final period, the Purcha­ser may hims­elf under­ta­ke or employ a third party to under­ta­ke neces­sa­ry repair work at the risk and expen­se of the Contractor.

Where suc­cessful repair work has been under­ta­ken by the Purcha­ser or a third party, reim­bur­se­ment by the Con­trac­tor of reasonable costs incur­red by the Purcha­ser shall be in full sett­le­ment of the Contractor’s lia­bi­li­ties for the said defect.

69. Where the defect has not been suc­cessful­ly reme­di­ed, as sti­pu­la­ted under Clause 68:

a) the Purcha­ser shall be entit­led to a reduc­tion of the Con­tract Price in pro­por­ti­on to the redu­ced value of the Works, pro­vi­ded that under no cir­cum­s­tances shall such reduc­tion exceed 15 per cent of the Con­tract Price, or, where the defect is so sub­stan­ti­al as to signi­fi­cant­ly depri­ve the Purcha­ser of the bene­fit of the Con­tract as regards the Works or a sub­stan­ti­al part of it,

b) the Purcha­ser may ter­mi­na­te the Con­tract by notice In Wri­ting to the Con­trac­tor in respect of such part of the Works as cannot in con­se­quence of the defect be used as inten­ded by the par­ties. The Purcha­ser shall then be entit­led to com­pen­sa­ti­on for his loss, costs and dama­ges up to a maxi­mum of 15 per cent of that part of the Con­tract Price which is attri­bu­ta­ble to the part of the Works in respect of which the Con­tract is terminated.

70. Not­wi­th­stan­ding the pro­vi­si­ons of Clau­ses 55–69 the Con­trac­tor shall not be liable for defects in any part of the Works for more than one year from the end of the lia­bi­li­ty period refer­red to in Clause 59 or from the end of any other lia­bi­li­ty period agreed upon by the parties.

71. Save as sti­pu­la­ted in Clau­ses 55–70, the Con­trac­tor shall not be liable for defects. This appli­es to any loss the defect may cause, inclu­ding loss of pro­duc­tion, loss of profit and other indi­rect loss. This limi­ta­ti­on of the Contractor’s lia­bi­li­ty shall not apply if he has been guilty of Gross Negligence.

ALLO­CA­TI­ON OF LIA­BI­LI­TY FOR DAMAGE CAUSED BY THE WORKS
72. The Con­trac­tor shall not be liable for any damage to pro­per­ty caused by the Works after taking-over and whilst the Works are in the pos­ses­si­on of the Purcha­ser. Nor shall the Con­trac­tor be liable for any damage to pro­ducts manu­fac­tu­red by the Purcha­ser or to pro­ducts of which the Purchaser’s pro­ducts form a part.

If the Con­trac­tor incurs lia­bi­li­ty towards any third party for such damage to pro­per­ty as descri­bed in the pre­ce­ding para­graph, the Purcha­ser shall indem­ni­fy, defend and hold the Con­trac­tor harmless.

If a claim for damage as descri­bed in this Clause is lodged by a third party against one of the par­ties, the latter party shall for­thwi­th inform the other party the­reof In Writing.

The Con­trac­tor and the Purcha­ser shall be mutual­ly obli­ged to let them­sel­ves be sum­mo­ned to the court or arbi­tral tri­bu­nal exami­ning claims for dama­ges lodged against one of them on the basis of damage alle­gedly caused by the Works. The lia­bi­li­ty bet­ween the Con­trac­tor and the Purcha­ser shall howe­ver be sett­led in accordance with Clause 78.

The limi­ta­ti­on of the Contractor’s lia­bi­li­ty in the first para­graph of this Clause shall not apply where the Con­trac­tor has been guilty of Gross Negligence.

FORCE MAJEU­RE
73. Either party shall be entit­led to sus­pend per­for­mance of his obli­ga­ti­ons under the Con­tract to the extent that such per­for­mance is impe­ded or made unre­ason­ab­ly one­r­ous by Force Maj­su­re, mea­ning any of the fol­lo­wing cir­cum­s­tances: indus­tri­al dis­pu­tes and any other cir­cum­s­tance beyond the con­trol of the par­ties, such as fire, war, exten­si­ve mili­ta­ry mobi­liza­ti­on, insur­rec­tion, requi­si­ti­on, sei­zu­re, embar­go, rest­ric­tions in the use of power, cur­ren­cy and export rest­ric­tions, epi­de­mics, natu­ral dis­as­ters, extre­me natu­ral events, ter­ro­rist acts and defects or delays in deli­veries by sub-con­trac­tors caused by any such cir­cum­s­tance refer­red to in this Clause.

A cir­cum­s­tance refer­red to in this Clause, whe­ther occur­ring prior to or after the for­ma­ti­on of the Con­tract, shall give a right to sus­pen­si­on only if its effect on the per­for­mance of the Con­tract could not be fore­seen at the time of the for­ma­ti­on of the Contract.

74. The party clai­ming to be affec­ted by Force Majeu­re shall notify the other party In Wri­ting wit­hout delay on the inter­ven­ti­on and on the ces­sa­ti­on of such cir­cum­s­tance. If a party fails to give such notice, the other party shall be entit­led to com­pen­sa­ti­on for any addi­tio­nal costs which he incurs and which he could have avo­ided had he recei­ved such notice.

If Force Majeu­re pre­vents the Purcha­ser from ful­fil­ling his obli­ga­ti­ons, he shall com­pen­sa­te the Con­trac­tor for expen­ses incur­red in secu­ring and pro­tec­ting the Works.
75. Regard­less of what might other­wi­se follow from these Gene­ral Con­di­ti­ons, either party shall be entit­led to ter­mi­na­te the Con­tract by notice In Wri­ting to the other party if per­for­mance of the Con­tract is sus­pen­ded under Clause 73 for more than six months.

ANTI­CI­PA­TED NON-PER­FOR­MANCE
76. Not­wi­th­stan­ding other pro­vi­si­ons in these Gene­ral Con­di­ti­ons regar­ding sus­pen­si­on, each party shall be entit­led to sus­pend the per­for­mance of his obli­ga­ti­ons under the Con­tract where it is clear from the cir­cum­s­tances that the other party is not going to per­form his obli­ga­ti­ons. A party sus­pen­ding his per­for­mance of the Con­tract shall for­thwi­th notify the other party the­reof In Writing.

CON­SE­QUEN­TI­AL LOSSES
77. Save as other­wi­se stated in these Gene­ral Con­di­ti­ons there shall be no lia­bi­li­ty on either party towards the other party for loss of pro­duc­tion, loss of profit, loss of use, loss of con­tracts or for any other con­se­quen­ti­al or indi­rect loss whatsoever.

DIS­PU­TES AND APPLI­CA­BLE LAW
78. All dis­pu­tes ari­sing out of or in con­nec­tion with the Con­tract shall be final­ly sett­led under the Rules of Arbi­tra­ti­on of the Inter­na­tio­nal Cham­ber of Com­mer­ce by one or more arbi­tra­tors appoin­ted in accordance with the said Rules.

79. The Con­tract shall be gover­ned by the sub­stan­ti­ve law of the Contractor’s country.

 

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