دانلود کتاب FIDIC Conditions for EPC Turnkey Projects: Silver

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1 General Provisions
1.1 Definitions
1.1.1 The Contract
1.1.2 Parties and Persons
1.1.3 Dates, Tests, Periods and Completion
1.1.4 Money and Payments
1.1.5 Works and Goods
1.1.6 Other Definitions
1.2 Interpretation
(a) words indicating one gender include all genders;
(b) words indicating the singular also include the plural and words indicating the plural also include the singular;
(c) provisions including the word “agree”, “agreed” or “agreement” require the agreement to be recorded in writing, and
(d) “written” or “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record.
1.3 Communications
(a) in writing and delivered by hand (against receipt), sent by mail or courier, or transmitted using any of the agreed systems of electronic transmission as stated in the Particular Conditions; and
(b) delivered, sent or transmitted to the address for the recipient’s communications as stated in the Contract. However:
(i) if the recipient gives notice of another address, communications shall thereafter be delivered accordingly; and
(ii) if the recipient has not stated otherwise when requesting an approval or consent, it may be sent to the address from which the request was issued.
1.4 Law and Language
1.5 Priority of Documents
(a) the Contract Agreement,
(b) the Particular Conditions,
(c) these General Conditions,
(d) the Employer’s Requirements,
(e) the Tender and any other documents forming part of the Contract.
1.6 Contract Agreement
1.7 Assignment
(a) may assign the whole or any part with the prior agreement of the other Party, at the sole discretion of such other Party, and
(b) may, as security in favour of a bank or financial institution, assign its right to any moneys due, or to become due, under the Contract.
1.8 Care and Supply of Documents
1.9 Confidentiality
1.10 Employer’s Use of Contractor’s Documents
(a) apply throughout the actual or intended working life (whichever is longer) of the relevant parts of the Works,
(b) entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the Contractor’s Documents for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works, and
(c) in the case of Contractor’s Documents which are in the form of computer programs and other software, permit their use on any computer on the Site and other places as envisaged by the Contract, including replacements of any computers supplied by the Contractor.
1.11 Contractor’s Use of Employer’s Documents
1.12 Confidential Details
1.13 Compliance with Laws
(a) the Employer shall have obtained (or shall obtain) the planning, zoning or similar permission for the Permanent Works, and any other permissions described in the Employer’s Requirements as having been (or being) obtained by the Employer; and the Employer shall indemnify and hold the Contractor harmless against and from the consequences of any failure to do so; and
(b) the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all permits, licences and approvals, as required by the Laws in relation to the design, execution and completion of the Works and the remedying of any defects; and the Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so.
1.14 Joint and Several Liability
(a) these persons shall be deemed to be jointly and severally liable to the Employer for the performance of the Contract;
(b) these persons shall notify the Employer of their leader who shall have authority to bind the Contractor and each of these persons; and
(c) the Contractor shall not alter its composition or legal status without the prior consent of the Employer.
2 The Employer
2.1 Right of Access to the Site
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost plus reasonable profit, which shall be added to the Contract Price.
2.2 Permits, Licences or Approvals
(a) by obtaining copies of the Laws of the Country which are relevant to the Contract but are not readily available, and
(b) for the Contractor’s applications for any permits, licences or approvals required by the Laws of the Country:
(i) which the Contractor is required to obtain under Sub-Clause 1.13 [Compliance with Laws],
(ii) for the delivery of Goods, including clearance through customs, and
(iii) for the export of Contractor’s Equipment when it is removed from the Site.
2.3 Employer’s Personnel
(a) co-operate with the Contractor’s efforts under Sub-Clause 4.6 [Co-operation], and
(b) take actions similar to those which the Contractor is required to take under sub-paragraphs (a), (b) and (c) of Sub-Clause 4.8 [Safety Procedures] and under Sub-Clause 4.18 [Protection of the Environment].
2.4 Employer’s Financial Arrangements
2.5 Employer’s Claims
3 The Employer’s Administration
3.1 The Employer’s Representative
3.2 Other Employer’s Personnel
3.3 Delegated Persons
(a) unless otherwise stated in the delegated person’s communication relating to such act, it shall not relieve the Contractor from any responsibility he has under the Contract, including responsibility for errors, omissions, discrepancies and non-compliances;
(b) any failure to disapprove any work, Plant or Materials shall not constitute approval, and shall therefore not prejudice the right of the Employer to reject the work, Plant or Materials; and
(c) if the Contractor questions any determination or instruction of a delegated person, the Contractor may refer the matter to the Employer, who shall promptly confirm, reverse or vary the determination or instruction.
3.4 Instructions
3.5 Determinations
4 The Contractor
4.1 Contractor’s General Obligations
4.2 Performance Security
(a) failure by the Contractor to extend the validity of the Performance Security as described in the preceding paragraph, in which event the Employer may claim the full amount of the Performance Security,
(b) failure by the Contractor to pay the Employer an amount due, as either agreed by the Contractor or determined under Sub-Clause 2.5 [Employer’s Claims] or Clause 20 [Claims, Disputes and Arbitration], within 42 days after this agreement or determination,
(c) failure by the Contractor to remedy a default within 42 days after receiving the Employer’s notice requiring the default to be remedied, or
(d) circumstances which entitle the Employer to termination under Sub-Clause 15.2 [Termination by Employer], irrespective of whether notice of termination has been given.
4.3 Contractor’s Representative
4.4 Subcontractors
(a) the intended appointment of the Subcontractor, with detailed particulars which shall include his relevant experience,
(b) the intended commencement of the Subcontractor’s work, and
(c) the intended commencement of the Subcontractor’s work on the Site.
4.5 Nominated Subcontractors
4.6 Co-operation
(a) the Employer’s Personnel,
(b) any other contractors employed by the Employer, and
(c) the personnel of any legally constituted public authorities,
4.7 Setting Out
4.8 Safety Procedures
(a) comply with all applicable safety regulations,
(b) take care for the safety of all persons entitled to be on the Site,
(c) use reasonable efforts to keep the Site and Works clear of unnecessary obstruction so as to avoid danger to these persons,
(d) provide fencing, lighting, guarding and watching of the Works until completion and taking over under Clause 10 [Employer’s Taking Over], and
(e) provide any Temporary Works (including roadways, footways, guards and fences) which may be necessary, because of the execution of the Works, for the use and protection of the public and of owners and occupiers of adjacent land.
4.9 Quality Assurance
4.10 Site Data
4.11 Sufficiency of the Contract Price
4.12 Unforeseeable Difficulties
(a) the Contractor shall be deemed to have obtained all necessary information as to risks, contingencies and other circumstances which may influence or affect the Works;
(b) by signing the Contract, the Contractor accepts total responsibility for having foreseen all difficulties and costs of successfully completing the Works; and
(c) the Contract Price shall not be adjusted to take account of any unforeseen difficulties or costs.
4.13 Rights of Way and Facilities
4.14 Avoidance of Interference
(a) the convenience of the public, or
(b) the access to and use and occupation of all roads and footpaths, irrespective of whether they are public or in the possession of the Employer or of others.
4.15 Access Route
(a) the Contractor shall (as between the Parties) be responsible for any maintenance which may be required for his use of access routes;
(b) the Contractor shall provide all necessary signs or directions along access routes, and shall obtain any permission which may be required from the relevant authorities for his use of routes, signs and directions;
(c) the Employer shall not be responsible for any claims which may arise from the use or otherwise of any access route,
(d) the Employer does not guarantee the suitability or availability of particular access routes, and
(e) Costs due to non-suitability or non-availability, for the use required by the Contractor, of access routes shall be borne by the Contractor.
4.16 Transport of Goods
(a) the Contractor shall give the Employer not less than 21 days’ notice of the date on which any Plant or a major item of other Goods will be delivered to the Site;
(b) the Contractor shall be responsible for packing, loading, transporting, receiving, unloading, storing and protecting all Goods and other things required for the Works; and
(c) the Contractor shall indemnify and hold the Employer harmless against and from all damages, losses and expenses (including legal fees and expenses) resulting from the transport of Goods, and shall negotiate and pay all claims arising from their transport.
4.17 Contractor’s Equipment
4.18 Protection of the Environment
4.19 Electricity, Water and Gas
4.20 Employer’s Equipment and Free-Issue Material
(a) the Employer shall be responsible for the Employer’s Equipment, except that
(b) the Contractor shall be responsible for each item of Employer’s Equipment whilst any of the Contractor’s Personnel is operating it, driving it, directing it or in possession or control of it.
4.21 Progress Reports
(a) charts and detailed descriptions of progress, including each stage of design, Contractor’s Documents, procurement, manufacture, delivery to Site, construction, erection, testing, commissioning and trial operation;
(b) photographs showing the status of manufacture and of progress on the Site;
(c) for the manufacture of each main item of Plant and Materials, the name of the manufacturer, manufacture location, percentage progress, and the actual or expected dates of:
(i) commencement of manufacture,
(ii) Contractor’s inspections,
(iii) tests, and
(iv) shipment and arrival at the Site;
(d) the details described in Sub-Clause 6.10 [Records of Contractor’s Personnel and Equipment];
(e) copies of quality assurance documents, test results and certificates of Materials;
(f) list of Variations, notices given under Sub-Clause 2.5 [Employer’s Claims] and notices given under Sub-Clause 20.1;
(g) safety statistics, including details of any hazardous’ incidents and activities relating to environmental aspects and public relations; and
(h) comparisons of actual and planned progress, with details of any events or circumstances which may jeopardize the completion in accordance with the Contract, and the measures being (or to be) adopted to overcome delays.
4.22 Security of the Site
(a) The Contractor shall be responsible for keeping unauthorised persons off the Site, and
(b) authorised persons shall be limited to the Contractor’s Personnel and the Employer’s Personnel; and to any other personnel notified to the Contractor, by (or on behalf of) the Employer, as authorised personnel of the Employer’s other contractors on the Site.
4.23 Contractor’s Operations on Site
4.24 Fossils
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost, which shall be added to the Contract Price.
5 Design
5.1 General Design Obligations
(a) portions, data and information which are stated in the Contract as being immutable or the responsibility of the Employer,
(b) definitions of intended purposes of the Works or any parts thereof,
(c) criteria for the testing and performance of the completed Works, and
(d) portions, data and information which cannot be verified by the Contractor, except as otherwise stated in the Contract.
5.2 Contractor’s Documents
(a) execution of such part of the Works shall not commence prior to the expiry of the review periods for all the Contractor’s Documents which are relevant to its design and execution;
(b) execution of such part of the Works shall be in accordance with these Contractor’s Documents, as submitted for review; and
(c) if the Contractor wishes to modify any design or document which has previously been submitted for review, the Contractor shall immediately give notice to the Employer. Thereafter, the Contractor shall submit revised documents to the Employer in accordance with the above procedure.
5.3 Contractor’s Undertaking
(a) the Laws in the Country, and
(b) the documents forming the Contract, as altered or modified by Variations.
5.4 Technical Standards and Regulations
(a) the Employer determines that compliance is required, and
(b) the proposals for compliance constitute a variation,
5.5 Training
5.6 As-Built Documents
5.7 Operation and Maintenance Manuals
5.8 Design Error
6 Staff and Labour
6.1 Engagement of Staff and Labour
6.2 Rates of Wages and Conditions of Labour
6.3 Persons in the Service of Others
6.4 Labour Laws
6.5 Working Hours
(a) otherwise stated in the Contract,
(b) the Employer gives consent, or
(c) the work is unavoidable, or necessary for the protection of life or property or for the safety of the Works, in which case the Contractor shall immediately advise the Employer.
6.6 Facilities for Staff and Labour
6.7 Health and Safety
6.8 Contractor’s Superintendence
6.9 Contractor’s Personnel
(a) persists in any misconduct or lack of care,
(b) carries out duties incompetently or negligently,
(c) fails to conform with any provisions of the Contract, or
(d) persists in any conduct which is prejudicial to safety, health, or the protection of the environment.
6.10 Records of Contractor’s Personnel and Equipment
6.11 Disorderly Conduct
7 Plant, Materials and Workmanship
7.1 Manner of Execution
(a) in the manner (if any) specified in the Contract,
(b) in a proper workmanlike and careful manner, in accordance with recognised good practice, and
(c) with properly equipped facilities and non-hazardous Materials, except as otherwise specified in the Contract.
7.2 Samples
7.3 Inspection
(a) have full access to all parts of the Site and to all places from which natural Materials are being obtained, and
(b) during production, manufacture and construction (at the Site and, to the extent specified in the Contract, elsewhere), be entitled to examine, inspect, measure and test the materials and workmanship, and to check the progress of manufacture of Plant and production and manufacture of Materials.
7.4 Testing
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost plus reasonable profit, which shall be added to the Contract Price.
7.5 Rejection
7.6 Remedial Work
(a) remove from the Site and replace any Plant or Materials which is not in accordance with the Contract,
(b) remove and re-execute any other work which is not in accordance with the Contract, and
(c) execute any work which is urgently required for the safety of the Works, whether because of an accident, unforeseeable event or otherwise.
7.7 Ownership of Plant and Materials
(a) when it is delivered to the Site;
(b) when the Contractor is entitled to payment of the value of the Plant and Materials under Sub-Clause 8.10 [Payment for Plant and Materials in Event of Suspension].
7.8 Royalties
(a) natural Materials obtained from outside the Site, and
(b) the disposal of material from demolitions and excavations and of other surplus material (whether natural or man-made), except to the extent that disposal areas within the Site are specified in the Contract.
8 Commencement, Delays and Suspension
8.1 Commencement of Works
(a) the Employer shall give the Contractor not less than 7 days’ notice of the Commencement Date; and
(b) the Commencement Date shall be within 42 days after the date on which the Contract comes into full force and effect under Sub-Clause 1.6 [Contract Agreement].
8.2 Time for Completion
(a) achieving the passing of the Tests on Completion, and
(b) completing all work which is stated in the Contract as being required for the Works or Section to be considered to be completed for the purposes of taking over under Sub-Clause 10.1 [Taking Over of the Works and Sections].
8.3 Programme
(a) the order in which the Contractor intends to carry out the Works, including the anticipated timing of each major stage of the Works,
(b) the periods for reviews under Sub-Clause 5.2 [Contractor’s Documents],
(c) the sequence and timing of inspections and tests specified in the Contract, and
(d) a supporting report which includes:
(i) a general description of the methods which the Contractor intends to adopt for the execution of each major stage of the Works, and
(ii) the approximate number of each class of Contractor’s Personnel and of each type of Contractor’s Equipment for each major stage.
8.4 Extension of Time for Completion
(a) a Variation (unless an adjustment to the Time for Completion has been agreed under Sub-Clause 13.3 [Variation Procedure]),
(b) a cause of delay giving an entitlement to extension of time under a Sub-Clause of these Conditions, or
(c) any delay, impediment or prevention caused by or attributable to the Employer, the Employer’s Personnel, or the Employer’s other contractors on the Site.
8.5 Delays Caused by Authorities
(a) the Contractor has diligently followed the procedures laid down by the relevant legally constituted public authorities in the Country,
(b) these authorities delay or disrupt the Contractor’s work, and
(c) the delay or disruption was not reasonably foreseeable by an experienced contractor by the date for submission of the Tender,
8.6 Rate of Progress
(a) actual progress is too slow to complete within the Time for Completion, and/or
(b) progress has fallen (or will fall) behind the current programme under Sub Clause 8.3 [Programme],
8.7 Delay Damages
8.8 Suspension of Work
8.9 Consequences of Suspension
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost, which shall be added to the Contract Price.
8.10 Payment for Plant and Materials in Event of Suspension
(a) the work on Plant or delivery of Plant and/or Materials, has been suspended for more than 28 days, and
(b) the Contractor has marked the Plant and/or Materials as the Employer’s property in accordance with the Employer’s instructions.
8.11 Prolonged Suspension
8.12 Resumption of Work
9 Tests on Completion
9.1 Contractor’s Obligations
(a) pre-commissioning tests, which shall include the appropriate inspections and (“dry” or “cold”) functional tests to demonstrate that each item of Plant can safely under-take the next stage, (b);
(b) commissioning tests, which shall include the specified operational tests to demonstrate that the Works or Section can be operated safely and as specified, under all available operating conditions; and
(c) trial operation, which shall demonstrate that the Works or Section perform reliably and in accordance with the Contract.
9.2 Delayed Tests
9.3 Retesting
9.4 Failure to Pass Tests on Completion
(a) order further repetition of Tests on Completion under Sub-Clause 9.3;
(b) if the failure deprives the Employer of substantially the whole benefit of the Works or Section, reject the Works or Section (as the case may be), in which event the Employer shall have the same remedies as are provided in sub paragraph (c) of Sub-Clause 11.4 [Failure to Remedy Defects]; or
(c) issue a Taking-Over Certificate.
10 Employer’s Taking Over
10.1 Taking Over of the Works and Sections
(a) issue the Taking-Over Certificate to the Contractor, stating the date on which the Works or Section were completed in accordance with the Contract, except for any minor outstanding work and defects which will not substantially affect the use of the Works or Section for their intended purpose (either until or whilst this work is completed and these defects are remedied); or
(b) reject the application, giving reasons and specifying the work required to be done by the Contractor to enable the Taking-Over Certificate to be issued. The Contractor shall then complete this work before issuing a further notice under this Sub-Clause.
10.2 Taking Over of Parts of the Works
10.3 Interference with Tests on Completion
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost plus reasonable profit, which shall be added to the Contract Price.
11 Defects Liability
11.1 Completion of Outstanding Work and Remedying Defects
(a) complete any work which is outstanding on the date stated in a Taking-Over Certificate, within such reasonable time as is instructed by the Employer, and
(b) execute all work required to remedy defects or damage, as may be notified by the Employer on or before the expiry date of the Defects Notification Period for the Works or Section (as the case may be).
11.2 Cost of Remedying Defects
(a) the design of the Works,
(b) Plant, Materials or workmanship not being in accordance with the Contract,
(c) improper operation or maintenance which was attributable to matters for which the Contractor is responsible (under Sub-Clauses 5.5 to 5.7 or otherwise), or
(d) failure by the Contractor to comply with any other obligation.
11.3 Extension of Defects Notification Period
11.4 Failure to Remedy Defects
(a) carry out the work himself or by others, in a reasonable manner and at the Contractor’s cost, but the Contractor shall have no responsibility for this work; and the Contractor shall subject to Sub-Clause 2.5 [Employer’s Claims] pay to the Employer the costs reasonably incurred by the Employer in remedying the defect or damage;
(b) agree or determine a reasonable reduction in the Contract Price in accordance with Sub-Clause 3.5 [Determinations]; or
(c) if the defect or damage deprives the Employer of substantially the whole benefit of the Works or any major part of the Works, terminate the Contract as a whole, or in respect of such major part which cannot be put to the intended use. Without prejudice to any other rights, under the Contract or otherwise, the Employer shall then be entitled to recover all sums paid for the Works or for such part (as the case may be), plus financing costs and the cost of dismantling the same, clearing the Site and returning Plant and Materials to the Contractor.
11.5 Removal of Defective Work
11.6 Further Tests
11.7 Right of Access
11.8 Contractor to Search
11.9 Performance Certificate
(a) the Performance Certificate shall be deemed to have been issued on the date 28 days after the date on which it should have been issued, as required by this Sub-Clause, and
(b) Sub-Clause 11.11 [Clearance of Site] and sub-paragraph (a) of Sub-Clause 14.14 [Cessation of Employer’s Liability] shall be inapplicable.
11.10 Unfulfilled Obligations
11.11 Clearance of Site
12 Tests after Completion
12.1 Procedure for Tests after Completion
(a) The Employer shall provide all electricity, fuel and materials, and make the Employer’s Personnel and Plant available;
(b) the Contractor shall provide any other plant, equipment and suitably qualified and experienced staff, as are necessary to carry out the Tests after Completion efficiently; and
(c) the Contractor shall carry out the Tests after Completion in the presence of such Employer’s and/or Contractor’s Personnel as either Party may reasonably request.
12.2 Delayed Tests
12.3 Retesting
(a) sub-paragraph (b) of Sub-Clause 11.1 [Completion of Outstanding Work and Remedying of Defects] shall apply, and
(b) either Party may then require the failed Tests, and the Tests after Completion on any related work, to be repeated under the same terms and conditions.
12.4 Failure to Pass Tests after Completion
(a) the Works or a Section, fail to pass any or all of the Tests after Completion,
(b) the relevant sum payable as non-performance damages for this failure is stated (or its method of calculation is defined) in the Contract, and
(c) the Contractor pays this relevant sum to the Employer during the Defects Notification Period,
13 Variations and Adjustments
13.1 Right to Vary
13.2 Value Engineering
13.3 Variation Procedure
(a) a description of the proposed design and/or work to be performed and a programme for its execution,
(b) the Contractor’s proposal for any necessary modifications to the programme according to Sub-Clause 8.3 [Programme] and to the Time for Completion, and
(c) the Contractor’s proposal for adjustment to the Contract Price.
13.4 Payment in Applicable Currencies
13.5 Provisional Sums
(a) work to be executed (including Plant, Materials or services to be supplied) by the Contractor and valued under Sub-Clause 13.3 [Variation Procedure]; and/or
(b) Plant, Materials or services to be purchased by the Contractor, for which there shall be added to the Contract Price less the original Provisional Sums:
(i) the actual amounts paid (or due to be paid) by the Contractor, and
(ii) a sum for overhead charges and profit, calculated as a percentage of these actual amounts by applying the relevant percentage rate (if any) stated in the Contract.
13.6 Daywork
(a) the names, occupations and time of Contractor’s Personnel,
(b) the identification, type and time of Contractor’s Equipment and Temporary Works, and
(c) the quantities and types of Plant and Materials used.
13.7 Adjustments for Changes in Legislation
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost, which shall be added to the Contract Price.
13.8 Adjustments for Changes in Costs
14 Contract Price and Payment
14.1 The Contract Price
(a) payment for the Works shall be made on the basis of the lump sum Contract Price, subject to adjustments in accordance with the Contract; and
(b) the Contractor shall pay all taxes, duties and fees required to be paid by him under the Contract, and the Contract Price shall not be adjusted for any of these costs, except as stated in Sub-Clause 13.7 [Adjustments for Changes in Legislation].
14.2 Advance Payment
(a) the amount of the advance payment, then this Sub-Clause shall not apply;
(b) the number and timing of instalments, then there shall be only one;
(c) the applicable currencies and proportions, then they shall be those in which the Contract Price is payable; and/or
(d) the amortisation rate for repayments, then it shall be calculated by dividing the total amount of the advance payment by the Contract Price stated in the Contract Agreement less Provisional Sums.
14.3 Application for Interim Payments
(a) the estimated contract value of the Works executed and the Contractor’s Documents produced up to the end of the month (including Variations but excluding items described in sub-paragraphs (b) to (f) below);
(b) any amounts to be added and deducted for changes in legislation and changes in cost, in accordance with Sub-Clause 13.7 [Adjustments for Changes in Legislation] and Sub-Clause 13.8 [Adjustments for Changes in Cost];
(c) any amount to be deducted for retention, calculated by applying the percentage of retention stated in the Particular Conditions to the total of the above amounts, until the amount so retained by the Employer reaches the limit of Retention Money (if any) stated in the Particular Conditions;
(d) any amounts to be added and deducted for the advance payment and repayments in accordance with Sub-Clause 14.2 [Advance Payment];
(e) any other additions or deductions which may have become due under the Contract or otherwise, including those under Clause 20 [Claims, Disputes and Arbitration]; and
(f) the deduction of amounts included in previous Statements.
14.4 Schedule of Payments
(a) the instalments quoted in the Schedule of Payments shall be the estimated contract values for the purposes of sub-paragraph (a) of Sub-Clause 14.3 [Application for Interim Payments], subject to Sub-Clause 14.5 [Plant and Materials intended for the Works]; and
(b) if these instalments are not defined by reference to the actual progress achieved in executing the Works, and if actual progress is found to be less than that on which the Schedule of Payments was based, then the Employer may proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine revised instalments, which shall take account of the extent to which progress is less than that on which the instalments were previously based.
14.5 Plant and Materials intended for the Works
(a) the relevant Plant and Materials are in the Country and have been marked as the Employer’s property in accordance with the Employer’s instructions; or
(b) the Contractor has delivered, to the Employer, evidence of insurance and a bank guarantee in a form and issued by an entity approved by the Employer in amounts and currencies equal to such payment. This guarantee may be in a similar form to the form referred to in Sub-Clause 14.2 [Advance Payment] and shall be valid until the Plant and Materials are properly stored on Site and protected against loss, damage or deterioration.
14.6 Interim Payments
(a) if any thing supplied or work done by the Contractor is not in accordance with the Contract, the cost of rectification or replacement may be withheld until rectification or replacement has been completed; and/or
(b) if the Contractor was or is failing to perform any work or obligation in accordance with the Contract, and had been so notified by the Employer, the value of this work or obligation may be withheld until the work or obligation has been performed.
14.7 Timing of Payments
(a) the first instalment of the advance payment within 42 days after the date on which the Contract came into full force and effect or within 21 days after the Employer receives the documents in accordance with Sub-Clause 4.2 [Performance Security] and Sub-Clause 14.2 [Advance Payment], whichever is later;
(b) the amount which is due in respect of each Statement, other than the Final Statement, within 56 days after receiving the Statement and supporting documents; and
(c) the final amount due, within 42 days after receiving the Final Statement and written discharge in accordance with Sub-Clause 14.11 [Application for Final Payment] and Sub-Clause 14.12 [Discharge].
14.8 Delayed Payment
14.9 Payment of Retention Money
14.10 Statement at Completion
(a) the value of all work done in accordance with the Contract up to the date stated in the Taking-Over Certificate for the Works,
(b) any further sums which the Contractor considers to be due, and
(c) an estimate of any other amounts which the Contractor considers will become due to him under the Contract. Estimated amounts shall be shown separately in this Statement at completion.
14.11 Application for Final Payment
(a) the value of all work done in accordance with the Contract, and
(b) any further sums which the Contractor considers to be due to him under the Contract or otherwise.
14.12 Discharge
14.13 Final Payment
14.14 Cessation of Employer’s Liability
(a) in the Final Statement and also
(b) (except for matters or things arising after the issue of the Taking-Over Certificate for the Works) in the Statement at completion described in Sub-Clause 14.10 [Statement at Completion].
14.15 Currencies of Payment
(a) if the Contract Price was expressed in Local Currency only:
(i) the proportions or amounts of the Local and Foreign Currencies, and the fixed rates of exchange to be used for calculating the payments, shall be as stated in the Contract Agreement, except as otherwise agreed by both Parties;
(ii) payments and deductions under Sub-Clause 13.5 [Provisional Sums] and Sub-Clause 13.7 [Adjustments for Changes in Legislation] shall be made in the applicable currencies and proportions; and
(iii) other payments and deductions under sub-paragraphs (a) to (d) of Sub-Clause 14.3 [Application for Interim Payments] shall be made in the currencies and proportions specified in sub-paragraph (a)(i) above;
(b) payment of the damages specified in the Particular Conditions shall be made in the currencies and proportions specified in the Particular Conditions;
(c) other payments to the Employer by the Contractor shall be made in the currency in which the sum was expended by the Employer, or in such currency as may be agreed by both Parties;
(d) if any amount payable by the Contractor to the Employer in a particular currency exceeds the sum payable by the Employer to the Contractor in that currency, the Employer may recover the balance of this amount from the sums otherwise payable to the Contractor in other currencies; and
(e) if no rates of exchange are stated in the Contract, they shall be those prevailing on the Base Date and determined by the central bank of the Country.
15 Termination by Employer
15.1 Notice to Correct
15.2 Termination by Employer
(a) fails to comply with Sub-Clause 4.2 [Performance Security] or with a notice under Sub-Clause 15.1 [Notice to Correct],
(b) abandons the Works or otherwise plainly demonstrates the intention not to continue performance of his obligations under the Contract,
(c) without reasonable excuse fails to proceed with the Works in accordance with Clause 8 [Commencement, Delays and Suspension],
(d) subcontracts the whole of the Works or assigns the Contract without the required agreement,
(e) becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under applicable Laws) has a similar effect to any of these acts or events, or
(f) gives or offers to give (directly or indirectly) to any person any bribe, gift, gratuity, commission or other thing of value, as an inducement or reward:
(i) for doing or forbearing to do any action in relation to the Contract, or
(ii) for showing or forbearing to show favour or disfavour to any person in relation to the Contract,
15.3 Valuation at Date of Termination
15.4 Payment after Termination
(a) proceed in accordance with Sub-Clause 2.5 [Employer’s Claims],
(b) with-hold further payments to the Contractor until the costs of design, execution, completion and remedying of any defects, damages for delay in completion (if any), and all other costs incurred by the Employer, have been established, and/or
(c) recover from the Contractor any losses and damages incurred by the Employer and any extra costs of completing the Works, after allowing for any sum due to the Contractor under Sub-Clause 15.3 [Valuation at Date of Termination]. After recovering any such losses, damages and extra costs, the Employer shall pay any balance to the Contractor.
15.5 Employer’s Entitlement to Termination
16 Suspension and Termination by Contractor
16.1 Contractor’s Entitlement to Suspend Work
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost plus reasonable profit, which shall be added to the Contract Price.
16.2 Termination by Contractor
(a) the Contractor does not receive the reasonable evidence within 42 days after giving notice under Sub-Clause 16.1 [Contractor’s Entitlement to Suspend Work] in respect of a failure to comply with Sub-Clause 2.4 [Employer’s Financial Arrangements],
(b) the Contractor does not receive the amount due within 42 days after the expiry of the time stated in Sub-Clause 14.7 [Timing of Payments] within which payment is to be made (except for deductions in accordance with Sub-Clause 2.5 [Employer’s Claims]),
(c) the Employer substantially fails to perform his obligations under the Contract,
(d) the Employer fails to comply with Sub-Clause 1.7 [Assignment],
(e) a prolonged suspension affects the whole of the Works as described in Sub-Clause 8.11 [Prolonged Suspension], or
(f) the Employer becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under applicable Laws) has a similar effect to any of these acts or events.
16.3 Cessation of Work and Removal of Contractor’s Equipment
(a) cease all further work, except for such work as may have been instructed by the Employer for the protection of life or property or for the safety of the Works,
(b) hand over Contractor’s Documents, Plant, Materials and other work, for which the Contractor has received payment, and
(c) remove all other Goods from the Site, except as necessary for safety, and leave the Site.
16.4 Payment on Termination
(a) return the Performance Security to the Contractor,
(b) pay the Contractor in accordance with Sub-Clause 19.6 [Optional Termination, Payment and Release], and
(c) pay to the Contractor the amount of any loss of profit or other loss or damage sustained by the Contractor as a result of this termination.
17 Risk and Responsibility
17.1 Indemnities
(a) bodily injury, sickness, disease or death, of any person whatsoever arising out of or in the course of or by reason of the design, execution and completion of the Works and the remedying of any defects, unless attributable to any negligence, wilful act or breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents, and
(b) damage to or loss of any property, real or personal (other than the Works), to the extent that such damage or loss:
(i) arises out of or in the course of or by reason of the design, execution and completion of the Works and the remedying of any defects, and
(ii) is not attributable to any negligence, wilful act or breach of the Contract by the Employer, the Employer’s Personnel, their respective agents, or anyone directly or indirectly employed by any of them.
17.2 Contractor’s Care of the Works
17.3 Employer’s Risks
(a) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,
(b) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war, within the Country,
(c) riot, commotion or disorder within the Country by persons other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors,
(d) munitions of war, explosive materials, ionising radiation or contamination by radio-activity, within the Country, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, and.
(e) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.
17.4 Consequences of Employer’s Risks
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) payment of any such Cost, which shall be added to the Contract Price.
17.5 Intellectual and Industrial Property Rights
(a) an unavoidable result of the Contractor’s compliance with the Employer’s Requirements, or
(b) a result of any Works being used by the Employer:
(i) for a purpose other than that indicated by, or reasonably to be inferred from, the Contract, or
(ii) in conjunction with any thing not supplied by the Contractor, unless such use was disclosed to the Contractor prior to the Base Date or is stated in the Contract.
17.6 Limitation of Liability
18 Insurance
18.1 General Requirements for Insurance
(a) evidence that the insurances described in this Clause have been effected, and
(b) copies of the policies for the insurances described in Sub-Clause 18.2 [Insurance of Works and Contractor’s Equipment] and Sub-Clause 18.3 [Insurance against Injury to Persons and Damage to Property].
18.2 Insurance for Works and Contractor’s Equipment
(a) shall be effected and maintained by the Contractor as insuring Party,
(b) shall be in the joint names of the Parties, who shall be jointly entitled to receive payments from the insurers, payments being held or allocated between the Parties for the sole purpose of rectifying the loss or damage,
(c) shall cover all loss and damage from any cause not listed in Sub-Clause 17.3 [Employer’s Risks],
(d) shall also cover loss or damage from the risks listed in sub-paragraph (c) of Sub-Clause 17.3 [Employer’s Risks], with deductibles per occurrence of not more than the amount stated in the Particular Conditions (if an amount is not so stated, this sub-paragraph (d) shall not apply), and
(e) may however exclude loss of, damage to, and reinstatement of:
(i) a part of the Works which is in a defective condition due to a defect in its design, materials or workmanship (but cover shall include any other parts which are lost or damaged as a direct result of this defective condition and not as described in sub-paragraph (ii) below),
(ii) a part of the Works which is lost or damaged in order to reinstate any other part of the Works if this other part is in a defective condition due to a defect in its design, materials or workmanship,
(iii) a part of the Works which has been taken over by the Employer, except to the extent that the Contractor is liable for the loss or damage, and
(iv) Goods while they are not in the Country, subject to Sub-Clause 14.5 [Plant and Materials intended for the Works].
18.3 Insurance against Injury to Persons and Damage to Property
(a) shall be effected and maintained by the Contractor as insuring Party,
(b) shall be in the joint names of the Parties,
(c) shall be extended to cover liability for all loss and damage to the Employer’s property (except things insured under Sub-Clause 18.2) arising out of the Contractor’s performance of the Contract, and
(d) may however exclude liability to the extent that it arises from:
(i) the Employer’s right to have the Permanent Works executed on, over, under, in or through any land, and to occupy this land for the Permanent Works,
(ii) damage which is an unavoidable result of the Contractor’s obligations to execute the Works and remedy any defects, and
(iii) a cause listed in Sub-Clause 17.3 [Employer’s Risks], except to the extent that cover is available at commercially reasonable terms.
18.4 Insurance for Contractor’s Personnel
19 Force Majeure
19.1 Definition of Force Majeure
(a) which is beyond a Party’s control,
(b) which such Party could not reasonably have provided against before entering into the Contract,
(c) which, having arisen, such Party could not reasonably have avoided or overcome, and
(d) which is not substantially attributable to the other Party.
(i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,
(ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war,
(iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Sub contractors,
(iv) munitions of war, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, and
(v) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity.
19.2 Notice of Force Majeure
19.3 Duty to Minimise Delay
19.4 Consequences of Force Majeure
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b) if the event or circumstance is of the kind described in sub-paragraphs (i) to (iv) of Sub-Clause 19.1 [Definition of Force Majeure] and, in the case of sub paragraphs (ii) to (iv), occurs in the Country, payment of any such Cost.
19.5 Force Majeure Affecting Subcontractor
19.6 Optional Termination, Payment and Release
(a) the amounts payable for any work carried out for which a price is stated in the Contract;
(b) the Cost of Plant and Materials ordered for the Works which have been delivered to the Contractor, or of which the Contractor is liable to accept delivery: this Plant and Materials shall become the property of (and be at the risk of) the Employer when paid for by the Employer, and the Contractor shall place the same at the Employer’s disposal;
(c) any other Cost or liability which in the circumstances was reasonably incurred by the Contractor in the expectation of completing the Works;
(d) the Cost of removal of Temporary Works and Contractor’s Equipment from the Site and the return of these items to the Contractor’s works in his country (or to any other destination at no greater cost); and
(e) the Cost of repatriation of the Contractor’s staff and labour employed wholly in connection with the Works at the date of termination.
19.7 Release from Performance under the Law
(a) 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, and
(b) the sum payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 19.6 [Optional Termination, Payment and Release] if the Contract had been terminated under Sub-Clause 19.6.
20 Claims, Disputes and Arbitration
20.1 Contractor’s Claims
(a) this fully detailed claim shall be considered as interim;
(b) the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Employer may reasonably require; and
(c) the Contractor shall send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Employer.
20.2 Appointment of the Dispute Adjudication Board
20.3 Failure to Agree Dispute Adjudication Board
(a) the Parties fail to agree upon the appointment of the sole member of the DAB by the date stated in the first paragraph of Sub-Clause 20.2,
(b) either Party fails to nominate a member (for approval by the other Party) of a DAB of three persons by such date,
(c) the Parties fail to agree upon the appointment of the third member (to act as chairman) of the DAB by such date, or
(d) the Parties fail to agree upon the appointment of a replacement person within 42 days after the date on which the sole member or one of the three members declines to act or is unable to act as a result of death, disability, resignation or termination of appointment,
20.4 Obtaining Dispute Adjudication Board’s Decision
20.5 Amicable Settlement
20.6 Arbitration
(a) the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce,
(b) the dispute shall be settled by three arbitrators appointed in accordance with these Rules, and
(c) the arbitration shall be conducted in the language for communications defined in Sub-Clause 1.4 [Law and Language].
20.7 Failure to Comply with Dispute Adjudication Board’s Decision
(a) neither Party has given notice of dissatisfaction within the period stated in Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision],
(b) the DAB’s related decision (if any) has become final and binding, and
(c) a Party fails to comply with this decision,
20.8 Expiry of Dispute Adjudication Board’s Appointment
(a) Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] and Sub Clause 20.5 [Amicable Settlement] shall not apply, and
(b) the dispute may be referred directly to arbitration under Sub-Clause 20.6 [Arbitration].
(i) the sole member of the “DAB” (or “adjudicator”) and, where this is the case, all references to the “Other Members” do not apply,
(ii) one of the three persons who are jointly called the “DAB” (or “dispute adjudication board”) and, where this is the case, the other two persons are called the “Other Members”.
(i) each working day spent reading submissions, attending hearings (if any), preparing decisions, or making site visits (if any); and
(ii) each day or part of a day up to maximum of two days travel time in each direction for the journey (if any) between the Member’s home and site or an other location of a meeting with Other Members (if any) and/or the Employer and the Contractor;