CONFIDENTIAL AGREEMENT
CONTRACT TEMPLATE
PRIVATE & CONFIDENTIAL
CONTRACT AGREEMENT
Made on the…………of………….20…..
BETWEEN:
•
[insert …….? entity]] with its registered address at [insert address] and with company number [insert company number] ("…….?"); and
• [insert name of GAZI BORING] with its registered address at [insert address] and with company number [insert company number] (the "GAZI BORING")
•
and together …….? the GAZI BORING shall be the “Parties”, and “Party” will be interpreted accordingly.
RECITALS
1.…….? has been entrusted by [ ] for the implementation of certain Works (as defined below) in relation to the [ ] at [ ] (the "Project"). [Insert details of the project]
2. …….? wishes to appoint the GAZI BORING for the performance of the Works under the Contract.
3. The GAZI BORING wishes to undertake such appointment on the terms and conditions set out in the Contract.
NOW IT IS AGREED AS FOLLOWS:
1. The GAZI BORING agrees to execute the Works in accordance with the Contract. Except as otherwise expressly provided elsewhere in the Contract, GAZI BORING shall supply all equipment, services, and other things necessary to execute and complete the Works. The Works are more particularly described in Schedule 3 (Specification) attached hereto.
2. …….? agrees to pay to the GAZI BORING, in full consideration for the execution of the Works, the Contract Price in accordance with the Contract.
3. All defined terms used in the Contract shall have the meanings set out in this Contract Agreement or in Clause 1 of the Conditions of Contract attached hereto in Schedule 2 (Conditions of Contract), as applicable.
4. The Contract shall consist of this Contract Agreement, the Contract Particulars, the
Conditions of Contract, the other Schedules listed below, and the further documents (if any) which are expressed therein to form part of the Contract:
• Schedule 3 - Specification
• Schedule 4 - Pricing
• Schedule 5 - Health, Safety & Environment
• Schedule 6 – Supplier Code of Conduct
[Note: insert here any other schedules that are attached]
• EXECUTED BY THE PARTIES HERETO
Signed by or on behalf of …….? by
………………………………….
Name:
Title:
In the presence of:
………………………………….
Name:
Signed by or on behalf of the GAZI BORING by
………………………………….
Name:
Title:
In the presence of:
………………………………….
Name
Schedule 1
CONTRACT PARTICULARS
These Contract Particulars contain amendments and additions to the Conditions of Contract. To the extent of any inconsistency between the terms of the Conditions of Contract and the Contract Particulars, these Contract Particulars shall prevail. Clause references in these Contract Particulars are references to the clauses of the Conditions of Contract.
Item Sub-Clause Information
Applicable Law 1.1.1 Refers to the law of [the Country] Commencement Date 1.1.4 [insert date]
Defects Liability Period
1.1.7 [*tick as appropriate] Period of:
6 months
12 months
18 months
following the Completion Date.
Time for Completion 1.1.12 [insert date for completion of the Works] Language 1.2 English
Documents forming the Contract are listed in the order of priority
Dates for possession of the Site
1.4 2.1 Contract Agreement
Contract Particulars (Schedule 1)
Specification (Schedule 3)
Conditions of Contract (Schedule 2) Pricing (Schedule 4)
Other Schedules
[insert date(s) for giving possession of Site or state that these are to be notified by …….? to the GAZI BORING]
Delay Damages 5.4 [ ] per day up to a maximum of [ ]
Authorized Person 9 [insert name and notices address of …….?' representative/project manager if applicable]
Name:
Address:
[Contract Price] / [Estimated Contract Price]
10 [For lump sum contracts, insert relevant amount:]
[ ] as may be adjusted in accordance with
the Contract.
[For cost plus/ schedules of rates or
measurable contracts, insert the
Currency of payment Invoices
Advance Payment amount
Performance Security
estimated contract price as of the Commencement Date:]
[ ], being the estimated Contract Price as at the Commencement Date, as may be adjusted in accordance with the Contract.
[insert applicable currency]
The GAZI BORING shall submit invoices for progress payments on the following basis: [insert details re-invoicing basis - i.e. monthly invoices or linked to installments or payment milestones. Alternatively cross-refer to Schedule 4 Pricing for further details]
*delete as appropriate:
[The amount of the advance payment shall be [ ] and the rate of amortization shall be a deduction of [ ]% from each subsequent payment until the advance payment amount has been fully recovered]
[There shall be no advance payment and no corresponding advance payment guarantee]
Amount: [ ] [If not required, insert "Not applicable."]
Retention 10.7 *delete as appropriate:
[The retention amount to be deducted from
each payment shall be [ ] to a maximum
of [ ] % of the Contract Price]
[There shall be no retention]
Insurance 11 [Note: the types of insurance and extent of cover should either be set out here or
in the Specification or communicated to
the GAZI BORING]
Dispute Resolution 14 [Note: if an alternative dispute resolution procedure other than that set out in
clause 14 is required - specify here. If
clause 14 is acceptable please mark the
column as "Not Applicable"]
Notice 16.4 …….?'s address for notices shall be: [insert address]
Site means the land at: [insert description] as more particularly described in the
Specification
Schedule 2
CONDITIONS OF CONTRACT
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In addition to terms defined in the Contract Agreement, the following words and expressions shall have the meanings set out below.
1.1.1. "Applicable Law" means all national or state legislation, statutes, legislation, and regulations or by-laws of the country stated in the Contract Particulars.
1.1.2. “Authorised Senior Representative” means a senior member of each Party representing that Party’s wishes and with the authority to negotiate and discuss any dispute in good faith with the intention of such dispute being settled.
1.1.3. “Commencement Date” means the date on which the Works shall commence, as specified in the Contract Particulars.
1.1.4. “Completion Date” means the date on which…….? notifies the GAZI BORING that the Works are complete in accordance with clause 6.2.
1.1.5. "Contract" means the Contract, the Contract Particulars, and other Schedules attached hereto or as listed in the Contract Particulars.
1.1.6. "Country" means the country in which the Site is located.
1.1.7. "Defects Liability Period" means the period stated in the Contract Particulars for notifying defects in the Works, calculated from the date on which the Works are completed as certified by …….? under clause 7.
1.1.8. “Force Majeure Event” means an exceptional event or circumstance: that is beyond a Party's control; which such Party could not reasonably have provided against before entering into the Contract; which, having arisen, such Party could not have reasonably avoided or overcome; and, which is not substantially attributable to the other Party.
1.1.9. "Party" means either …….? or the GAZI BORING, as the context requires.
1.1.10. "Site" means the places to be provided by …….? as described in the Specification where the Works are to be executed, and any other places specified in the Contract as forming part of the Site.
1.1.11. "Specification" means the document(s) listed in Schedule 3, which specifies the purpose, scope, technical criteria, and/or design for the Works and includes…….?'s requirements in respect of those parts of the design of the Works which are to be carried out by the GAZI BORING (if any), and any modifications to the same in accordance with the Contract.
1.1.12. "Time for Completion" means the time for completing the Works as stated in the Contract Particulars (as may be extended in accordance with the Contract).
1.1.13. "Unforeseeable" means not reasonably foreseeable by an experienced GAZI BORING as of the Commencement Date.
1.1.14. "Variation" means any change to the Specification or the Works which is instructed
or approved by …….? as a variation under clause 8.
1.1.15. "Works" means all work and design (if any) to be performed by the GAZI BORING under the Contract, including temporary works.
1.2. Communication
Wherever provision is made for the giving or issue of any notice, instruction, or other communication by any person, such communication shall be in the language stated in the Contract Particulars.
1.3. Interpretation
1.3.1. Words importing persons or parties shall include firms and organizations.
1.3.2. Words importing the singular or one gender shall include the plural or the other gender where the context requires.
1.3.3. Words such as "include" or including " shall be construed to mean without limitation. 1.4. Priority of Documents
The documents forming the Contract are to be taken as mutually explanatory of one another, If an ambiguity or discrepancy is found in the documents, …….? shall issue any necessary instructions to the GAZI BORING, and the priority of the documents shall be in accordance with the order as listed in the Appendix.
1.5. Law
The Contract and all non-contractual obligations of the Parties in relation hereto shall be governed and construed in accordance with the governing law as stated in the Contract Particulars.
1.6. Statutory Obligations
The GAZI BORING shall comply with the laws of the countries where activities are performed. The GAZI BORING shall give all notices and pay all fees and other charges in respect of the Works.
2. THE GAZI BORING’S OBLIGATIONS
2.1. The GAZI BORING shall carry out all works and services required under the Contract for the design (to the extent the GAZI BORING is responsible for the same as required under the Specification), construction and completion of the Works and remedying of defects therein in accordance with the requirements of the Contract and Applicable Laws.
2.2. The GAZI BORING shall:
2.2.1. carry out the design (where applicable) and execution of the Works with all the skill, diligence and prudence that would reasonably and ordinarily be expected from a skilled and experienced designer and construction GAZI BORING applying the standards generally adopted by professional and skilled designers and construction GAZI BORINGs in the design and construction of works of a type, complexity and scale similar to the Works and to be located in conditions comparable to the Site;
2.2.2. provide all supervision, labour, materials, plant and equipment which may be required for the Works. All materials on the Site will be deemed to be the property of …….? on delivery to the Site (or on earlier payment for the same, if applicable); and
2.2.3. perform the Works regularly and diligently in a good and workmanlike manner using
good quality materials (which shall be fit for their intended purpose) in accordance with the Specification and all Applicable Law in order to achieve completion of the Works by the Time for Completion.
2.3. The GAZI BORING shall be deemed prior to the date of the Contract to have: reviewed the Specification and any other data provided by …….? which may influence or affect the Works; inspected and examined the Site and its surroundings; and obtained for itself all necessary information about all risks and circumstances regarding the Site and its surroundings; and satisfied itself as to the correctness and sufficiency of the Contract Price for the carrying out of the Works hereunder. The GAZI BORING shall therefore not be entitled to any extension to the Time for Completion or to any addition to the Contract Price or other cost or loss in the event of a delay to the Works or any additional expense arising as a result of or in connection with the same, subject to the provisions of clauses 3.3 and 3.4 below.
2.4. In the event that the GAZI BORING encounters adverse physical conditions at the Site that were Unforeseeable, which may include sub-surface or hydrological conditions ground conditions but shall not include climatic conditions, the GAZI BORING shall notify …….? as soon as practicable with full supporting information. To the extent that the GAZI BORING suffers delay which materially impacts the critical path for the completion of the Works by the Time for Completion or incurs increased cost as a result of Unforeseeable adverse physical conditions at the Site, it shall be entitled to an extension to the Time for Completion and/or increase in the Contract Price in respect thereof.
2.5. The GAZI BORING shall be responsible for any loss or damage to the Site or any neighbouring property if caused or contributed to by the acts or omissions of the GAZI BORING (or anyone for whom the GAZI BORING is responsible) and the GAZI BORING shall comply with any instructions of ......? to restore, replace or repair any such loss or damage at the GAZI BORING's cost.
2.6. The GAZI BORING have received a copy of …….?’s Supplier Code of Conduct (in Schedule 6) has understood its contents, has read, agreed and acknowledged that this Supplier Code of Conduct provides the minimum standards expected of ......? suppliers, and that the Standards apply to suppliers and their employees, subsidiary entities, and subGAZI BORINGs.
2.7. The GAZI BORING shall be responsible for security measures in relation to the Site and the GAZI BORING's equipment, plant and materials and shall comply with any requirements in relation to security set out in the Specification or otherwise notified by …….?to it from time to time.
2.8. The GAZI BORING shall, as specified in the Contract or as instructed by…….?, allow appropriate access opportunities to and co-operate with…….?, its personnel, other relevant agencies or any other GAZI BORINGs engaged at the Site. Any such instruction shall constitute a Variation if and to the extent that it causes the GAZI BORING to incur cost in an amount which was Unforeseeable and provided always that the GAZI BORING has complied with its obligations under this sub-clause.
2.9. If required, the GAZI BORING shall grant …….? reasonable access to its records and premises in order to monitor the GAZI BORING's compliance with the terms of the Contract.
2.10. …….? and its advisers and other relevant agencies may at any time from the date of the Contract enter the Site in order to inspect and view the state and progress of the Works and/or to undertake quality testing. …….? and the GAZI BORING shall also meet from time to time at the Site in order to review progress of the Works and the GAZI BORING's performance generally.
2.11. The GAZI BORING shall obtain any consents or permits required for the carrying out of the Works except to the extent a consent or permit is to be obtained by…….?, as specified in
the Specification.
3. DESIGN RESPONSIBILITY AND THE SPECIFICATION
3.1. The GAZI BORING shall carry out design in respect of the Works to the extent required under the Specification. The GAZI BORING shall promptly submit to …….? all designs prepared by it and within fourteen (14) days of receipt …….?shall notify the GAZI BORING of any comments or shall approve or reject the same. If the design is not in accordance with the requirements of the Specification, …….? may reject it, stating the reasons. The GAZI BORING shall promptly amend (taking into account …….?'s comments) and resubmit any designs which are subject to comments or rejection.
3.2. The GAZI BORING shall remain fully responsible for any design prepared by it notwithstanding any comment or approval or rejection of the same by or on behalf of…….?. The GAZI BORING shall also remain responsible and shall indemnify …….? against any claim for any infringement of any intellectual property rights by any other person in respect of such design.
3.3. …….? shall be responsible for the content of the Specification. Prior to the commencement of the Works hereunder, the GAZI BORING shall scrutinise the Specification and notify …….? of any non-compliance, non-conformity, discrepancies, errors, omissions, defects, or inadequacies in the Specification and drawings (if any) and shall give notice to …….? of any change, amendment, or modification required to cure the same and any required amendments to the Contract Price or Time for Completion for …….? to consider in its discretion.
3.4. If during the course of the Works the GAZI BORING suffers delay and/or incurs cost as a result of an error in the Specification and an experienced GAZI BORING exercising due care in accordance with good industry practice would not have discovered the error when scrutinising the Specification in accordance with 3.3 above, the GAZI BORING shall give notice to …….? with full supporting details of the Time for Completion and payment of cost to which it considers itself entitled. After …….? has received this notice, …….? shall proceed to agree or determine these matters in its discretion.
4. HEALTH, SAFETY & ENVIRONMENT
4.1. In carrying out the Works the GAZI BORING shall comply (and shall ensure anyone who the GAZI BORING is responsible for complies) with all Applicable Laws, regulations and industry best practice concerning matters of health, safety and environment, …….?’s Health and Safety Policy attached in Schedule 5 and any additional standards specified by…….?.
4.2. The GAZI BORING shall be liable for any losses, damages, expenses, liabilities, claims, costs or proceedings resulting from any personal injury to or death of any person as set out in clause 11.1.
5. COMMENCEMENT AND COMPLETION
5.1. …….? shall procure in favour of the GAZI BORING the right of access to and possession of the Site (or relevant parts thereof) at the times set out in the Contract Particulars or as otherwise notified by …….? to the GAZI BORING. The GAZI BORING acknowledges that such right and possession may not be exclusive to the GAZI BORING. The GAZI BORING will commence the Works on the Commencement Date and shall complete the Works on or before the Time for Completion (as may be adjusted by …….? under clause 5.3).
5.2. Within fourteen (14) days of the Commencement Date, the GAZI BORING shall submit to …….? a programme for the Works in the form specified by…….?. The programme shall be adjusted by the GAZI BORING and resubmitted to …….?whenever the previous programme is inconsistent with the progress of the Works or the GAZI BORING's obligations.
5.3. …….? may by notice to the GAZI BORING make any reasonable adjustments to the Time for Completion provided such adjustment is made in writing and is signed by…….?. The GAZI BORING shall be entitled to an extension to the Time for Completion if it is or will be delayed by:
5.3.1. any delay, impediment or prevention caused by or attributable to …….? or its personnel or other GAZI BORINGs engaged in relation to the Project;
5.3.2. a Force Majeure Event;
5.3.3. a Variation instructed under clause 8 of the Contract; or
5.3.4. any other cause of delay giving an express entitlement to extension of time under the Contract;
provided that, despite the GAZI BORING's reasonable endeavours to mitigate, such event will materially impact the critical path for the completion of the Works by the Time for Completion. The GAZI BORING may recover from …….? any additional expenses which are reasonably incurred by the GAZI BORING during the carrying out of the Works to the extent that such additional costs are caused by the events in sub-clause 5.3.1. The GAZI BORING shall be entitled to be paid for any additional costs in respect of any Variation in accordance with clause 8.
5.4. If the Works are not completed by the Time for Completion (as may be extended in accordance with the Contract), the GAZI BORING shall pay …….? delay damages at the rate specified in the Contract Particulars per day of delay between the Time for Completion and the date the Works are completed, up to the maximum amount stated in the Contract Particulars.
5.5. Such delay damages may be deducted from any sums due to the GAZI BORING under the Contract and/or recovered as a debt (including under the Performance Security, if required). The Parties agree that the delay damages are a genuine, fair and reasonable pre-estimate of the actual damage that will be suffered by …….? as a result of the delay in completion of the Works and do not constitute a penalty.
6. TAKING-OVER
6.1. The GAZI BORING shall notify …….? at least seven (7) days in advance of the date on which when it considers the Works are complete.
6.2. …….? shall as soon as reasonably practicable inspect the Works and shall notify the GAZI BORING whether it considers the GAZI BORING has completed the Works, stating the date accordingly or reject the notice. Alternatively, …….? may notify the GAZI BORING that the Works, although not fully complete, are ready for taking-over, stating the date accordingly and any outstanding minor works still to be completed. …….? shall take over the Works upon the issue of such notice, duly signed by an authorized …….? signatory. The GAZI BORING shall promptly complete any outstanding work, and subject to clause 7, clear the Site.
6.3. Risk of loss of the Works will transfer from the GAZI BORING to the relevant agency or other entity notified by …….? upon completion and certification of taking-over the Works by …….?.
7. DEFECTS
7.1. …….? may at any time during the Works and prior to the end of the Defects Liability Period notify the GAZI BORING of any defects, work which has not been carried out in accordance with the Contract or outstanding work in a schedule of defects. Unless instructs otherwise, upon receipt of such schedule the GAZI BORING shall as soon as is practical commence diligently with the making good of any defects and other faults referenced in the schedule. This making good shall be at the GAZI BORING’s cost and at no cost to (subject to clause 7.2 below).
7.2. The cost of remedying defects attributable to any cause which is not attributable to the GAZI BORING shall be treated as a Variation.
7.3. Where notifies to the GAZI BORING that any defect, shrinkage or other fault: 7.3.1. is affecting the use or occupation of the completed Works;
7.3.2. gives rise to a health and safety risk; or
7.3.3. is causing damage;
or is likely to do so if not rectified without delay, the GAZI BORING shall ensure that the required works of making good are commenced as soon as is practical (and in the event of emergency within twenty four (24) hours of being requested to do so) and proceeded with diligently thereafter.
7.4. Failure to remedy any defects or complete outstanding work notified under clause 7.1 within a reasonable time of …….?'s notice, or within the time period stated in clause 7.3 where applicable, shall entitle …….? to carry out all necessary work at the GAZI BORING's cost.
8. VARIATIONS AND CLAIMS
8.1. …….? may instruct or request a Variation by notice in writing to the GAZI BORING. Within seven (7) days of a notice from …….? requesting a Variation, the GAZI BORING shall submit its proposals for such Variation including the work or services to be performed and any impact on the Time for Completion and Contract Price for consideration by…….?.…….? shall respond with approval, disapproval or comments as soon as reasonably practicable.
8.2. In the event that …….? instructs a Variation, it shall proceed to agree or determine any impact on the Time for Completion and Contract Price and shall notify the GAZI BORING accordingly. Variations shall be valued by …….? on the basis of a lump sum amount agreed by the Parties or, were appropriate, at rates and prices set out in the Contract or, in the absence of such agreement or rates, on a fair and reasonable basis.
8.3. The GAZI BORING shall comply with all instructions in writing from …….? relating to the Works including any instructions for a Variation. The GAZI BORING will not be entitled to recover the costs of any additional or varied work unless such work has been undertaken pursuant to an instruction issued under this clause 8 (or unless undertaken pursuant to clause 7).
8.4. A Party shall notify the other as soon as it is aware of any circumstances which may delay or disrupt the Works or which may give rise to a claim for additional payment. The GAZI BORING shall take all reasonable steps to mitigate such circumstances.
8.5. The GAZI BORING's entitlement to an extension of the Time for Completion or additional payment shall be limited to the time and payment which would have been due if it had given prompt notice and had taken all reasonable measures.
9. …….?'S REPRESENTATIVES
9.1. …….?'s personnel stated in the Contract Particulars or otherwise notified by …….? to the GAZI BORING from time to time shall have authority to act for …….? within the scope of their delegated authority.
9.2.…….? may also appoint a firm or individual to carry out certain duties. The appointee may be named in the Contract Particulars or notified by …….?to the GAZI BORING from time to time. …….? shall notify the GAZI BORING of the delegated duties and authority of …….?'s representative.
10. PAYMENT AND SECURITY
10.1. In consideration of the carrying out and completion of the Works, …….? shall pay to the GAZI BORING the Contract Price by way of progress payments in accordance with the valuation and payment provisions set out in the Contract Particulars and Schedule 4 (Pricing) and at the times specified therein.
10.2. The GAZI BORING shall submit to …….? an invoice in relation to each progress payment to which the GAZI BORING considers it is entitled in accordance with Schedule 4 (Pricing). The GAZI BORING shall submit all supporting documents in relation to amounts claimed.
10.3. Within fourteen (14) days following receipt of an invoice and all related documentation, …….? shall notify to the GAZI BORING the sum that …….? intends to pay against that invoice and, if …….? intends to reasonably withhold any sums (and …….? reserves the right to withhold or set off any amounts due or to become due to…….?), …….? shall set out in the same notice details of the sum(s) that it proposes to withhold together with reasons. …….? shall than have a further thirty (30) days to make such payment.
10.4. The Contract Price is inclusive of any applicable sales and other taxes. The GAZI BORING shall meet the cost of all taxes payable in relation to the Works. If …….?is required to withhold or deduct any amount on account of tax from a payment due to the GAZI BORING, …….? will not be required to gross up that payment.
10.5. Where it is specified in the Contract Particulars that an advance payment is to be paid, on the date of signature of the Contract, the GAZI BORING shall provide and thereafter maintain a valid advance payment bank guarantee (in a form and from an institution reasonably acceptable to…….?) for the amount specified in the Contract Particulars. The GAZI BORING shall ensure that the guarantee provided under this sub-clause is valid and enforceable until the advance payment has been repaid in full. The advance payment shall be amortised by deducting from all subsequent payments from …….? to the GAZI BORING the sum indicated in the Contract Particulars. Such deductions shall cease when the amortised value of the advance payment is reduced to zero. Payment of the advance payment shall be subject to …….? receiving the advance payment guarantee in accordance with this sub-clause.
10.6. Where it is specified in the Contract Particulars that a Performance Security is required, within fourteen (14) days of the Commencement Date, the GAZI BORING shall provide and thereafter maintain a valid Performance Security (in a form and from an institution reasonably acceptable to…….?) for the amount stated in the Contract Particulars. Payment to the GAZI BORING under the Contract shall be subject to …….? receiving the Performance Security in accordance with this sub-clause. The GAZI BORING shall ensure that the Performance Security provided under this sub-clause is valid and enforceable until …….? certifies that the Works are completed.
10.7. Where it is specified in the Contract Particulars that a retention is to apply, …….? may withhold a retention percentage from each payment made to the GAZI BORING until the maximum limit on the retention amount is reached. Fifty percent (50%) of such retention money shall be released to the GAZI BORING upon the date the completion notice is issued under clause 6.2 and the remaining balance shall be released by …….? to the GAZI BORING at the end of the Defects Liability Period.
10.8. The security referred to in this clause (including the advance payment guarantee, performance security and retention) shall be held by …….? against any default by the
GAZI BORING in the execution of its obligations under the Contract and during the Defects Liability Period (as applicable). …….? shall be entitled to demand and draw upon all and any of the security (on one or more occasions) in the event of any breach or default by the GAZI BORING of its obligations under the Contract and/or any insolvency of the GAZI BORING and/or in settlement of any sum owed by the GAZI BORING to…….?.
11. LIABILITY AND INSURANCE
11.1. The GAZI BORING shall hold harmless …….? from any claims, losses, damages, expenses, costs or proceedings incurred as a result of or in connection with the default, actions or omissions of the GAZI BORING or any person for whom the GAZI BORING is responsible under or in relation to the Works including in respect of any death or personal injury to any person and/or damage to any property, but except to the extent that the same arise by reason of any breach, failure, negligence or other default of …….? or any person for whom…….? is responsible.
11.2. The GAZI BORING will purchase and maintain for the duration of the Contract any insurance that is required for works of the type of the Works by Applicable Law or is specified by …….? in the Specification, unless otherwise agreed. Certificates of such insurance and evidence of payment shall be made available to ......? upon request.
11.3. The policies shall be issued by insurers and in terms approved by…….?.
11.4. All monies received from insurers relating to loss or damage to the Works shall be held jointly by the Parties and used for the repair of the loss or damage or as compensation for loss or damage that is not to be replaced.
11.5. If the GAZI BORING fails to effect or maintain any of the required insurances or fails to provide adequate evidence of the same, …….? shall be permitted to take out such policies at the GAZI BORING's cost and recover the same from monies due to the GAZI BORING.
12. ASSIGNMENT AND SUBCONTRACTING
12.1. The Contract shall be binding upon the Parties hereto and their representatives, successors, and permitted assignees.
12.2. The Contract is personal to the GAZI BORING and the GAZI BORING shall not assign, or transfer any of its rights and/or obligations under the Contract to any third party without the prior written consent of (and upon conditions acceptable to)…….?.
12.3. …….? may assign or transfer its rights and/or obligations under the Contract without the consent of the GAZI BORING, including but not limited to novating the Contract to the relevant authority or agency. In the event of a novation by…….?, the GAZI BORING shall enter into a novation agreement in the form provided by …….? and shall procure that the performance security (if any) is reissued in favour of the novatee.
12.4. The GAZI BORING shall not subcontract the whole of the Works. The GAZI BORING shall not subcontract any part of the Works without …….?'s prior written consent. The GAZI BORING shall be fully responsible for the acts and defaults of any subGAZI BORINGs as if they were the acts and defaults of the GAZI BORING.
13. TERMINATION
13.1. In the event that…….?: (i) fails to make any undisputed payment to the GAZI BORING which is due in accordance with the Contract; or (ii) is materially in breach of its obligations under the Contract; and such failure or breach is not remedied within twenty one (21) days of written notice of such failure or breach being received by…….?, the GAZI BORING shall issue a notice to …….? stating that it intends to terminate the Contract. If the failure or breach is
still not remedied within fifteen (15) days of the notice of the intention to terminate, the GAZI BORING may, without prejudice to any other right it may have, terminate the Contract with immediate effect by notice to.
13.2. …….? has the absolute right if it decides in its absolute discretion that it does not wish to progress the Works, to suspend or terminate the Contract at any time and for any reason (including but not limited to reasons concerning the security of …….? or any of its employees or agents) by giving immediate notice to the GAZI BORING. In the event of a Force Majeure Event occurring which prevents or delays a Party's performance of the Contract, such Party shall give notice to other and the Parties shall discuss the impact of the Force Majeure Event. Such Party shall at all times use all reasonable endeavours to minimise any delay in the performance of the Contract. If the performance of the Contract is substantially prevented for a continuous period of 120 days, then either Party may give notice to the other to terminate the Contract. Upon such termination, the Parties shall proceed in accordance with clause 13.8 and …….? shall pay to the GAZI BORING the amounts payable for any work carried out and any other cost or liability which was reasonably incurred by the GAZI BORING in the expectation of completing the Works.
13.3. In addition to …….?'s rights under clause 13.2, in the event the GAZI BORING is materially in breach of its obligations under the Contract, and such breach is not remedied within fourteen (14) days of written notice of such default,…….? may, without prejudice to any other right it may have, terminate the Contract with immediate effect by notice to the GAZI BORING. In the case of the insolvency of the GAZI BORING or, breach of clause 15 or the provisions of Schedule 6, …….? may by notice terminate the Contract immediately.
13.4. In addition to …….?'s rights under clauses 13.2 and 13.3, in the event that the Works are not progressing in accordance with the programme such that …….? reasonably considers that the Works will not be completed by the Time for Completion and that the overall schedule for the Project is likely to be materially adversely affected as a result (other than by reason of a Force Majeure Event, a reason attributable to …….? or other event for which an extension of time would be permitted under the Contract), …….? may, after due notice to the GAZI BORING, reduce the scope of the Works or terminate the Contract and make other arrangements for the completion of the Works in order to mitigate such delay. The GAZI BORING further acknowledges that any such omission or termination will not constitute a basis to allege that …….? has repudiated the Contract, regardless of the timing of the termination.
13.5. In the event of termination of the Contract due to …….?'s default under clause 13.1 or following …….?’s termination (but not due to GAZI BORING default) for convenience under clause 13.2, the GAZI BORING shall be entitled to be paid in accordance with the Contract for the work properly performed by the GAZI BORING prior to termination together with such costs and expenses as were reasonable incurred by the GAZI BORING in the expectation of completing the Works.
13.6. In the event of termination of the Contract due to the GAZI BORING's default under clause 13.3 or 13.4, …….? shall be entitled to withhold further payments to the GAZI BORING until the costs of completion of the Works, damages for delay in completion (if any), and all other costs incurred by …….? have been established and/or recover from the GAZI BORING any losses and damages incurred by …….? (or other relevant agencies engaged in the Project) and any extra costs of completing the Works, after allowing for any sum due to the GAZI BORING for work properly performed prior to the termination. After recovering any such losses, damages and extra costs, …….? shall pay any balance to the GAZI BORING.
13.7. Except as expressly provided for in this clause 13, in the event of a termination, …….? shall have no liability whatsoever to the GAZI BORING in connection with such termination and the GAZI BORING waives any claim for any other costs, expenses, overheads, loss of profit, loss of contracts or opportunity and for any special, consequential or indirect loss or damages
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of whatever kind arising in connection therewith.
13.8. In the event of termination of the Contract:
13.8.1. the GAZI BORING shall immediately vacate the Site in an orderly manner but the GAZI BORING shall carry out such works as …….? may instruct to secure and protect the Works prior to vacating the Site. Such works will be at the GAZI BORING's cost in the event of termination of the Contract due to GAZI BORING default but otherwise at …….?'s cost;
13.8.2. …….? may pay any subGAZI BORING directly for any materials, goods or services supplied or works executed for the purposes of the Contract (whether before or after the date of determination) in so far as the GAZI BORING has not already paid for the same;
13.8.3. the GAZI BORING shall within thirty (30) days of receipt of a written instruction from …….? remove from the Site any temporary buildings, plant, tools, equipment, goods and materials belonging to or hired by it: and
13.8.4. …….? may complete the Works or arrange any other entities to do so and may use and goods, materials or design documents made by or on behalf of the GAZI BORING.
13.9. The rights in this clause 13 shall be in addition and without prejudice to any other rights and remedies which either Party may possess.
14. DISPUTE RESOLUTION
14.1. On the occurrence of a dispute between the Parties under the Contract which cannot be solved in the ordinary course of business, the following procedure must be followed:
14.1.1. either Party shall call a management meeting on at least five (5) days written notice;
14.1.2. an Authorised Senior Representative from each Party must be present at this management meeting and any follow-up meetings;
14.1.3. those attending the meeting shall in good faith and acting reasonably seek to resolve the dispute that has arisen within ten (10) days of the management meeting;
14.1.4. if the Parties fail to resolve the dispute within ten (10) days of the management meeting, each Party may, by giving written notice to the other, refer the matter to the senior executive of each Party who shall cooperate in good faith to resolve the dispute within ten (10) days of the dispute being referred to them; and
14.1.5. in the event that the people nominated under clause 14.1.4 are unable to resolve the dispute within ten (10) days of the dispute being referred to them, or either Party fails to procure such person to try and resolve the dispute, then either Party shall be entitled to refer the dispute for resolution in accordance with clause 14.2.
14.2. Each Party irrevocably agrees that the courts of the Country shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter. Each Party irrevocably submits to the jurisdiction of the courts of the Country.
15. BRIBERY
15.1. The GAZI BORING shall not offer, promise, pay, give or authorise (tacitly or otherwise) any financial or other advantage, in furtherance of the Contract:
15.1.1. to any person in order to induce that person to improperly perform a function or activity in connection with a business or organization, a person’s employment, or a public function; or
15.1.2. to any official to influence that official in connection with obtaining business or a business advantage for …….?
15.2. The GAZI BORING shall promptly report any apparent or actual breach of clause 15.1 above to …….?.
15.3. The GAZI BORING shall co-operate with ......? and/or any regulatory or public authorities in relation to any investigation in respect of matters relating to bribery and corruption.
15.4. …….? shall have the right to terminate the Contract on no notice, without liability, for breach of clause 15.1.
15.5. In this clause “official” means any (a) official or employee of any government or any instrumentality of government, including any government-controlled commercial enterprise, (b) political party or party official and (c) any candidate for political office.
16. GENERAL PROVISIONS
16.1. No failure or delay by either Party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach.
16.2. If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected.
16.3. No variation to the Contract shall be valid unless it is in writing and signed by both Parties.
16.4. Any notice required to be given to ......? under or in connection with the Contract shall be in writing and given by actual delivery to address as specified in the Contract Particulars. Any notice required to be given to the GAZI BORING under or in connection with the Contract shall be in writing and given to any GAZI BORING representative whose contact details are given to …….? by the GAZI BORING. If any notice is sent to the GAZI BORING by fax it shall be deemed to be delivered two (2) hours after the time it was actually sent.
16.5. The Contract constitutes the entire agreement between the Parties, and supersedes any previous agreement or understanding in relation to its subject matter.
16.6. The Contract is in English and may have been translated. In the event of any dispute over meaning or contradiction between the versions the English language version will be given priority.
16.7. Nothing in the Contract shall confer any right on any third party to enforce any of the terms of the Contract.
Schedule 3 Specification
[Note: insert the Specification]
[This should cover among other items:
• the purpose, scope, technical criteria, performance levels and/or design for the Works being provided by …….?;
• the description of the Site;
• the extent of design to be performed by the GAZI BORING and…….?'s requirements in respect of such GAZI BORING design portion;
• security measures in relation to the Site and the GAZI BORING's equipment, plant and materials;
• any permits and consents to be obtained by …….?;
• the insurance to be taken out by GAZI BORING, including details, coverage, levels etc
Schedule 4 Pricing
[Note: insert details of pricing approach, price breakdown etc.]
Schedule 5 Health, Safety & Environment
[Note: attach any relevant health & safety policies and health and safety checklis
Schedule 6 – Supplier Code of Conduct
[Note: attach the Supplier Code of Con
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