Table of Contents
- Introduction
- Definitions
- Temporary Facilities
- Construction Equipment
- Vendor and his Personnel
- Materials and Storage
- Information Supplied by Company
- Information Supplied by Vendor
- Work
- Working Hours, Overtime, Standby Time
- Milestones, Milestone Dates, Completion Date
- Inspection and Expediting, Testing
- Prices and Rates
- Changes. Pricing of Changes
- Physical Progress, Invoicing, Payment
- Claims
- Use of the Work and Acceptance
- Release of Liens, Retention and Bank Guarantee
- Safety, Health, Welfare and Environmental (SHWE)
- Security
- Preservation and Maintenance of the Site
- Direction and Approval
- Compliance with Law
- Guarantees
- Termination for Default and Petition in Bankruptcy
- Continuity
- Audit Rights
- Title
- Confidentiality
- Patents
- Insurance
- Liability
- Hazardous Substances Indemnification
- Suspension
- Cancellation
- Termination, Suspension, Cancellation Liabilities
- USA Export Administration Regulations
- Assignment and Subcontracting
- Force Majeure
- Applicable Law
1. Introduction
1.1 These General Conditions for Construction Work supplement the "Instructions and Conditions Company which are part of the PURCHASE ORDER for the sale and supply of certain specified equipment and/or materials. The General Conditions for Construction Work govern the construction portion of the PURCHASE ORDER only. In case of any discrepancy in terms of ambiguity or nonapplicability between "Instructions and Conditions Company" and these General Conditions of Construction Work, these General Conditions prevail over the Instructions and Conditions. Special conditions may be added to these general conditions if, in the opinion of Company and/or OWNER, such is required. In case of any discrepancy between these General Conditions and the agreed Special Conditions, the Special Conditions will prevail.
1.2 Any change or modification of the General Conditions and/or the Special Conditions and any exceptions thereto by VENDOR in his proposal or otherwise shall only be valid and binding when expressly agreed upon by both parties and addressed in full in the Special Conditions and not by way of reference in the PURCHASE ORDER.
1.3 Headings and subheadings of articles and indices used in these General Conditions and in the Special Conditions are for convenience and ease of reference only and in no way define, limit or describe the scope or intent of any provision or of the total PURCHASE ORDER.
2. Definitions
The following definitions shall apply to the construction part of the PURCHASE ORDER. Words imparting the singular only also include the plural and vice versa where the context requires.
2.1 Purchase Order
PURCHASE ORDER shall mean the complete Company PURCHASE ORDER with the General Conditions and Special Conditions for Construction Work, all documents which are deemed to be incorporated therein by reference and all agreed PURCHASE ORDER amendments.
2.2 Work
WORK shall mean all construction work to be performed and services to be rendered by VENDOR under the General Conditions and Special Conditions of the PURCHASE ORDER in respect of the construction work.
2.3 Subcontractor
SUBCONTRACTOR shall mean any person or Company having a SUBCONTRACT with VENDOR for the performance of the WORK or part of it.
2.4 Company
Company shall mean the Company who has awarded the PURCHASE ORDER, their designated representatives, and their representative or his appointed representative at the SITE. Such award may be in Company's name or in the name and/or on behalf of the client with whom Company has a contract.
2.5 Owner
OWNER shall mean the client with whom Company has a contract to perform work.
2.6 Site
SITE shall mean the location of both on-plot and off-plot units and facilities of OWNER's PLANT.
2.7 Plant
PLANT shall mean the units and facilities to be constructed and of which the WORK is a part.
2.8 Materials
MATERIALS shall mean any machinery, equipment, materials and other items (including the initial spare parts specified elsewhere) supplied by VENDOR and intended to be incorporated permanently in the PLANT or its facilities.
2.9 Surplus Materials
SURPLUS MATERIALS shall mean any MATERIALS found to be surplus upon acceptance of the WORK or earlier, with the exception of the initial spare parts.
2.10 Construction Equipment
CONSTRUCTION EQUIPMENT shall mean any lifting, transporting, testing, calibrating, protecting, and other materials and equipment, aircraft, watercraft, scaffolding, tools, implements and such other items as are required for the execution of the WORK but shall not include MATERIALS.
2.11 Temporary Facilities
TEMPORARY FACILITIES shall mean any temporary yards for the storage and/or maintenance of CONSTRUCTION EQUIPMENT and/or MATERIALS, any temporary offices, WORK shops, change rooms and other buildings, any temporary sanitary facilities and installations for utilities including the connections to the points of supply, any office equipment, office supplies, any consumables used in the TEMPORARY FACILITIES and such other items as are required for the execution of the WORK but shall not include MATERIALS or CONSTRUCTION EQUIPMENT.
2.12 Variation in Scope
VARIATION IN SCOPE shall mean any increase or decrease in the WORK.
2.13 Vendor
VENDOR means the party performing the WORK under the PURCHASE ORDER.
2.14 Extra Work
EXTRA WORK shall mean any modification or alteration to a part or parts of the WORK in progress or completed.
2.15 Completion Date(s)
COMPLETION DATE(s) shall mean the date(s) specified in the PURCHASE ORDER for completion of the WORK.
2.16 Milestone
MILESTONE shall mean an event that forms part of the WORK or a stage that a part of the WORK has reached, whereas the event or stage has been defined in the PURCHASE ORDER.
2.17 Milestone Date
MILESTONE DATE shall mean the date on which a MILESTONE must be reached, whereas the date has been defined in the PURCHASE ORDER.
2.18 Acceptance
ACCEPTANCE shall mean Company's acknowledgement that the WORK or part of the WORK completed has been reviewed without noting any nonapproved nonconformances with the PURCHASE ORDER by issuing a Certificate of Acceptance. The guarantee period shall start on the date of the issuance of the Certificate of Acceptance.
3. Temporary Facilities
3.1 Company shall make available to VENDOR free of charge a sufficient area or sufficient areas of land for vendor's TEMPORARY FACILITIES.
3.2 VENDOR shall promptly remove any TEMPORARY FACILITIES when instructed by Company to do so.
3.3 VENDOR shall, at his own expense, supply, install, maintain and remove the TEMPORARY FACILITIES that VENDOR may require. Prior to the supply VENDOR shall submit to Company all VENDOR's requirements including detailed drawings whereupon Company will establish the exact location of the TEMPORARY FACILITIES.
3.4 Company shall, insofar as they deem necessary, provide free of charge a supply of potable water, nonpotable water and electric power. VENDOR shall, at his own expense, provide, maintain and remove any temporary piping systems, cables and distribution boards VENDOR may require, including the connections to the points of supply. Connections to points of supply shall not be made without prior approval by Company.
3.5 Water and electric power shall be used conservatively. Electric power shall not be used for heating or for stress-relieving purposes or for testing microprocessors or computer systems.
3.6 In case a central sanitary sewer system is available VENDOR may, at his own expense, provide and remove any temporary system VENDOR may require, including the connection(s) to the existing system. Connections shall not be made without prior approval by Company.
3.7 VENDOR is responsible for the supply, installation, maintenance and removal of any telephone and/or telex connections VENDOR may require. All costs, including but not limited to subscription and usage, are for VENDOR's account. The routing of cables must be approved by the telephone Company and Company prior to their installation.
3.8 VENDOR shall not remove from the SITE any TEMPORARY FACILITIES without the prior approval by Company.
VENDOR shall promptly remove any TEMPORARY FACILITIES when instructed by Company to do so
3.9 On acceptance of the WORK, VENDOR shall remove all remaining TEMPORARY FACILITIES and leave the area(s) in a condition satisfactory to Company.
On acceptance of the WORK, VENDOR shall remove all remaining TEMPORARY FACILITIES and leave the area(s) in a condition satisfactory to Company.
4. Construction Equipment
4.1 VENDOR shall, at his own expense, supply, maintain and remove the CONSTRUCTION EQUIPMENT required for the execution of the WORK.
4.2 VENDOR warrants that the CONSTRUCTION EQUIPMENT shall be deployed at the SITE such that the WORK is executed in an efficient and expeditious manner.
4.3 The CONSTRUCTION EQUIPMENT shall be in first-class operating condition, safe and suitable for the efficient execution of the WORK and shall be accompanied by all safety, test and operating certificates and/or records required by manufacturer and authorities.
VENDOR shall conduct regular safety checks especially on cranes, vehicles and scaffolding to ensure compliance with safety regulations.
CONSTRUCTION EQUIPMENT not conforming with the foregoing shall promptly be removed by VENDOR and replaced with CONSTRUCTION EQUIPMENT acceptable to Company and/or OWNER without additional cost to Company and/or OWNER and without delaying the WORK.
4.4 VENDOR is solely responsible for the supply of his own fuels, lubricants and other products required for the execution of the WORK. In case OWNER is a manufacturer of such products, VENDOR undertakes to use only OWNER's products for the CONSTRUCTION EQUIPMENT at the SITE.
4.5 Oil and/or lubricant changes for CONSTRUCTION EQUIPMENT at the SITE shall only be carried out at locations approved by Company.
All wastage shall be properly collected, removed from the SITE and safely disposed of by VENDOR.
In case of spillage all cleanup, including removal and replacement of contaminated soil, shall be for VENDOR's account.
4.6 VENDOR shall not remove from the SITE any CONSTRUCTION EQUIPMENT without the prior approval from Company.
VENDOR shall promptly remove any CONSTRUCTION EQUIPMENT when instructed by Company to do so.
5. Vendor and his Personnel
5.1 VENDOR shall act as an independent contractor with respect to the WORK, and neither VENDOR nor any of his SUBCONTRACTORS nor the employees, agents, representatives and servants of either shall be deemed to be the employees, agents, representatives or servants of Company and/or OWNER.
5.2 VENDOR warrants that the WORK shall be efficiently and expeditiously executed by an adequate organization and work force, in accordance with first-class skill and workmanship and to the entire satisfaction of Company.
5.3 VENDOR shall exclusively assign to the SITE personnel that are permanently employed by VENDOR.
5.4 VENDOR's site management and supervisory personnel shall be thoroughly familiar with and fully conversant in the English language.
5.5 Prior to commencement of the WORK, VENDOR shall nominate a construction manager who shall be responsible for the WORK, who shall be authorized to represent VENDOR and who shall be at the SITE permanently during the execution of the WORK.
5.6 VENDOR shall not replace or remove from the SITE any of his site management or supervisory personnel who have been assigned to the SITE without the prior approval from Company.
5.7 VENDOR shall maintain at the SITE an up-to-date list of all his personnel as well as his SUBCONTRACTORS' personnel working on the SITE. This list shall include the employee's name, personnel number, country of origin and identity card or passport number. Company shall have access to this list at all times.
5.8 Upon instruction by Company, VENDOR shall immediately remove from the SITE and replace, at his own cost, any personnel either employed by VENDOR or his SUBCONTRACTORS, which Company regards as not suitable for reasons such as incompetency, language problems, reprehensible conduct, noncompliance with safety or security regulations
5.9 In the event that VENDOR is not able to immediately replace any personnel when instructed to do so by Company and in the event that VENDOR fails to have assigned to the SITE an adequate number of qualified personnel and is unable to improve this situation to the entire satisfaction of Company within five (5) working days after having been instructed to do so by Company, Company shall have the right to mobilize and assign their own and/or third party personnel until such time that VENDOR has fulfilled his obligations and a smooth execution of the WORK is assured. Any cost arising from such mobilization, assignment and subsequent demobilization shall be for VENDOR's account.
6. Materials and Storage
6.1 VENDOR shall deliver all MATERIALS as supplied under the supply part of the PURCHASE ORDER.
6.2 VENDOR shall unload, store and handle all MATERIALS.
6.3 MATERIALS shall be stored, maintained and erected or installed by VENDOR under conditions such that they are adequately protected from deterioration caused by ingress of moisture, dust or extremes of temperature, and that they are protected from accidental or willful damage.
6.4 MATERIALS supplied by VENDOR shall be new and unused, of first-class design and workmanship, within the specifications or if no such specifications exist, in all respects fit for the purpose intended. VENDOR shall obtain optimum guarantees from any third party suppliers of materials.
6.5 MATERIALS supplied by VENDOR shall be subject to Company's approval in respect of sources of supply. In case VENDOR fails to comply with this requirement, Company may instruct vendor to remove the MATERIALS from the SITE, whether or not they have been installed, and hold VENDOR liable for the costs of replacing such MATERIALS and for making good all other loss or damage to the WORK, including loss or damage to other contractors on SITE.
6.6 VENDOR shall have available the required construction lifting and holding equipment and manpower.
6.7 MATERIALS supplied by VENDOR and found to be surplus upon acceptance of the WORK or earlier shall be removed from the SITE by VENDOR after consultation with, and without any cost to Company.
7. Information Supplied by Company
7.1 Company shall keep VENDOR advised, in writing, about Company's representative and designated representatives.
7.2 Unless otherwise agreed in the PURCHASE ORDER, Company shall supply VENDOR free of charge with the following information:
a. one reproducible or four copies of all construction drawings required for the execution of the WORK;
b. two copies of all Company documents, except drawings, necessary for the WORK;
c. if applicable, two copies of relevant OWNER documents such as safety and/or security rules and regulations.
7.3 In case Company has supplied VENDOR with four copies of all construction drawings, Company shall supply VENDOR with two more copies, free of charge, of those drawings that need to be marked up for "as-built" purposes. In case Company has supplied VENDOR with one reproducible of all construction drawings, VENDOR shall make for his own account copies required for marking up for "as-built" purposes.
7.4 VENDOR shall not in any way be relieved from any obligations under the PURCHASE ORDER should any information, whether obtained from Company or otherwise, be incorrect and/or insufficient. VENDOR shall screen such information received in the light of his scope of WORK and the requirements thereof.
8. Information Supplied by Vendor
8.1 VENDOR shall prepare as soon as possible his quality plan (inspection and test plan) for the WORK and submit this to Company for Company's and/or OWNER's approval and the possible imposition of hold/witness points.
8.2 VENDOR shall prepare his safety plan for the WORK and submit this to Company for Company's and/or OWNER's approval as soon as possible.
8.3 VENDOR shall be responsible for providing all drawings, calculations and any other information necessary for and prepared by VENDOR for the proper execution of the WORK.
8.4 VENDOR shall prepare in accordance with Company's requirements and submit to Company the following documents:
- Labor force report, daily before 09.00 hours. This report shall include the names of all of VENDOR's personnel and his SUBCONTRACTORS' personnel present at the SITE.
- Safety/security/sanitation report, monthly.
- Comparison actual/planned manpower, monthly.
- Progress report, including a comparison actual/planned progress, monthly.
- Updates of VENDOR's organization charts and detailed construction schedule.
8.5 VENDOR shall inform Company immediately if the information received is not sufficient to execute the WORK in accordance with the PURCHASE ORDER and with normal construction practice. VENDOR who has not so informed Company shall be deemed to have received sufficient information.
8.6 VENDOR shall supply Company with "as-built" information by way of marked up drawings to enable Company to prepare "as-built" drawings.
8.7 VENDOR shall, within reason, supply Company with feedback information requested by Company.
9. Work
9.1 VENDOR is deemed to have ascertained, prior to award of PURCHASE ORDER, the extent and risks of the WORK and to have gathered all information necessary to execute the WORK including, but not limited to, the location and conditions at the SITE, local conditions and facilities, conditions of labor, wage standards, safety requirements, environmental and industrial matters.
9.2 VENDOR shall not in any way be relieved from any obligation under the PURCHASE ORDER should any information, whether obtained from Company or otherwise, be incorrect and/or insufficient. VENDOR shall screen such information received in the light of his scope of WORK and the requirements thereof.
9.3 Should any WORK or MATERIALS be required applying normal engineering practice, which has obviously been omitted from the PURCHASE ORDER but is necessary for the proper functioning of the PLANT, VENDOR understands such is implied and shall execute all such WORK and supply all such MATERIALS as is implied therein.
9.4 VENDOR shall notify Company of any discrepancies found in the PURCHASE ORDER and obtain from Company interpretation and/or decisions on any questions that may arise as to the intent of the PURCHASE ORDER.
9.5 VENDOR shall at all times, in accordance with the best practices and at no additional cost to Company or OWNER, protect from damage or loss due to VENDOR's operations all materials and work and all other items on the SITE belonging to OWNER, Company or others.
9.6 If, in the opinion of Company, the organization, composition or strength of VENDOR's personnel, CONSTRUCTION EQUIPMENT, materials or equipment or other support is inadequate and would jeopardize any MILESTONE DATE or the COMPLETION DATE, VENDOR shall take remedial action immediately. In the event that VENDOR fails to take remedial action within one (1) week after having been instructed to do so by Company, or in the event that the action taken by VENDOR is unsatisfactory to Company, Company shall have the right to take any remedial action themselves. Any cost arising from such remedial action by Company shall be for VENDOR's account.
9.7 VENDOR shall follow the directions by Company and shall cooperate and keep harmonious relations with other subcontractors at the SITE in order that the WORK and the work of other subcontractors may be carried out in such a way as will serve the interest of the contract between Company and OWNER and/or the OWNER direct.
9.8 VENDOR shall not contact governmental and/or municipal authorities in connection with the WORK without the prior knowledge of Company.
9.9 VENDOR shall not contact OWNER without prior approval from Company. VENDOR shall refer to Company for a decision on any request OWNER or OWNER's employees may make to VENDOR which will affect the WORK or the progress or the cost thereof. Pending Company's decision, VENDOR shall continue with the WORK in accordance with the PURCHASE ORDER, except that nothing in this provision shall operate so as to prevent VENDOR from immediately carrying out any emergency measure for the safety of persons and/or property which a representative of OWNER may request. In the event of VENDOR's carrying out emergency measures at OWNER's request, VENDOR shall report the occurrence to Company without delay.
10. Working Hours, Overtime, Standby Time
10.1 VENDOR shall comply with the working hours agreed for the execution of the WORK. Deviations from these working hours require prior approval from Company. VENDOR shall be responsible for obtaining permission to work overtime from the appropriate authority.
10.2 In the event that Company deems it necessary that VENDOR works overtime and/or works during holidays in order to safeguard a MILESTONE DATE and/or the COMPLETION DATE, VENDOR shall put this into effect immediately without extra charge to Company.
10.3 In the event that a MILESTONE DATE or the COMPLETION DATE is jeopardized for reasons contributable to Company and Company deems it necessary that VENDOR works overtime and/or works during holidays, Company shall pay to VENDOR the net extra cost of the premium payments of such overtime.
10.4 Standby time resulting from interruptions of the execution of the WORK caused by occurrences such as fire alarm, gas alarm, interruption in the supply of electric power, shall be dealt with as follows:
a. costs associated with interruptions lasting one hour or less shall be absorbed by VENDOR;
b. for interruptions that appear that they will be in excess of one hour's duration, VENDOR shall redeploy its personnel and CONSTRUCTION EQUIPMENT, after consultation with Company.
10.5 Standby time caused by force majeure and standby time requested by authorities shall be for VENDOR's account.
10.6 The net cost of standby time requested and approved by Company shall be for Company's or OWNER's account.
11. Milestones, Milestone Dates, Completion Date
11.1 VENDOR warrants that any MILESTONE shall be reached at the MILESTONE DATE and that the WORK shall be ready for acceptance on the COMPLETION DATE.
11.2 Prior to commencing the WORK and within the time limit established by Company, VENDOR shall submit to Company his detailed schedule for the WORK, based upon the MILESTONE DATES and the COMPLETION DATE, and in the manner and detail required by Company.
11.3 VENDOR shall keep his detailed schedule for the work up-to-date, shall immediately notify Company of any delay to the schedule, either anticipated or actual, and shall state what action has been or will be taken to minimize such delay.
11.4 A MILESTONE DATE and/or the COMPLETION DATE shall only be changed in the following circumstances:
a. where the WORK quantity has been substantially increased by written amendment to the PURCHASE ORDER and the prior consent of Company has been obtained for a change to such date;
b. where the WORK quantity has been substantially decreased by written amendment to the PURCHASE ORDER and the prior consent of VENDOR has been obtained for a change to such date;
c. in the event of delay caused by damage to the WORK through the fault of one or more of Company's other vendors, provided that VENDOR notifies Company, in writing, within two (2) working days of the occurrence and Company agrees to a change to such date;
d. in the event of delay caused by force majeure, provided that VENDOR notifies Company, in writing, within two (2) working days of such event and obtains Company's written agreement to a change to such date corresponding to the amount of time lost;
e. in the event of delay caused by Company exercising their right to temporarily suspend the WORK.
12. Inspection and Expediting, Testing
12.1 Company shall have access to and shall have the right to inspect the MATERIALS and the WORK or any part thereof at any time and place, before, during and after manufacture or erection.
12.2 VENDOR shall give reasonable notice to Company of his readiness for any required inspection. Such notice shall be sufficiently in advance of the assembly or closure of any part of the WORK, which might render it inaccessible for such inspection. In addition, VENDOR shall provide sufficient, safe and proper facilities for access and inspection by Company and/or OWNER.
12.3 Company shall be entitled to reject the MATERIALS or the WORK or any part thereof failing to meet the requirements of the PURCHASE ORDER. All resulting costs for replacement of MATERIALS or WORK including dismantling, rework, reinstallation and restoration shall be for VENDOR's account.
12.4 Company shall have the right to order, at any time, a reinspection involving the dismantling, where necessary, of any part of the WORK. In the event that the parts of the WORK conform to the PURCHASE ORDER any costs of reinspection and restoration of the WORK shall be borne by Company. In the event that the parts of the WORK do not conform to the PURCHASE ORDER, such cost shall be borne by VENDOR, unless VENDOR can prove that defects are caused by a contractor of Company and/or OWNER.
12.5 Inspection or failure to inspect by Company shall not relieve VENDOR of any of his obligations, responsibilities and/or liabilities under the PURCHASE ORDER, nor shall it be interpreted in any way to imply acceptance thereof by Company or the waiving of Company's or OWNER's guarantee rights.
12.6 VENDOR shall expedite materials and work furnished by his vendors and subcontractors to the extent necessary to safeguard any MILESTONE DATE and the COMPLETION DATE.
12.7 Materials and work furnished by VENDOR's vendors and subcontractors shall be subject to expediting by Company. Expediting or failure to expedite by Company shall not relieve VENDOR of any of his obligations, responsibilities and/or liabilities under the PURCHASE ORDER.
12.8 VENDOR shall carry out all tests required, in the presence of Company and at times to be agreed by Company. Cost for testing shall be for VENDOR's account.
12.9 For testing purposes VENDOR shall, at his own expense, provide, maintain and remove any temporary installation, any temporary utility system including the connections to the points of supply, and any test medium required with the exception that Company shall supply free of charge all water and gases required for testing at the SITE.
13. Prices and Rates
13.1 All prices, whether lump sum, fixed, target, ceiling or any other prices and rates shall include, except where expressly stated otherwise in the PURCHASE ORDER, all VENDOR's costs, expenses, overheads, profits, taxes, fees, escalation and currency fluctuations to execute the WORK, TEMPORARY FACILITIES, CONSTRUCTION EQUIPMENT and MATERIALS.
13.2 All prices and rates shall be firm for the duration of the PURCHASE ORDER.
13.3 In case unit rates to be applied are not included in the section unit rates of the PURCHASE ORDER, VENDOR and Company shall agree upon new rates that shall be scaled from and be in proper relation with those included in
14. Changes. Pricing of Changes
14.1 VENDOR shall not execute any changes in the WORK without the prior written approval by Company.
14.2 Company shall have the right at any time to order changes in the WORK and/or the PURCHASE ORDER, and to order alterations to portions of the WORK in progress or completed.
14.3 Neither a MILESTONE DATE nor the COMPLETION DATE shall be changed as a result of changes in the WORK ordered by Company unless expressly otherwise agreed in writing by Company.
14.4 Changes in the WORK ordered by Company shall be dealt with as follows:
a. VARIATIONS IN SCOPE shall be priced using the applicable rates for units of WORK included in the PURCHASE ORDER or, if such unit rates are not feasible, using a newly agreed lump sum or the rates for units of operation or time at Company's option;
b. EXTRA WORK shall be recorded on Extra Work Authorizations (EWA's) (Form No. BN-UC-4-1/3) and shall be priced using a newly negotiated lump sum or the rates for units of operation or time at Company's option.
14.5 Changes shall not be invoiced until they have been incorporated into the PURCHASE ORDER by way of a PURCHASE ORDER amendment.
15. Physical Progress, Invoicing, Payment
15.1 Physical progress shall only recognize the construction activities. Mobilization, setup and the supply of MATERIALS to the SITE shall not be expressed in physical progress. For VENDOR's cash flow purposes Company may agree, prior to PURCHASE ORDER award, to a downpayment or downpayments to cover these items.
15.2 At the end of each month and upon approval of the actual physical progress achieved, Company shall issue to the VENDOR a Progress Payment Certificate stating the value of the approved physical progress and of the approved and completed extra work. This Certificate is signed by Company, countersigned by the VENDOR and states the total value due to VENDOR to date. This total value minus previous payments, including any downpayment, represents the amount approved for invoicing.
15.3 VENDOR shall submit to Company on a monthly basis an invoice in accordance with the requirements of the PURCHASE ORDER. The backup shall include, but not be limited to, a copy of the Progress Payment Certificate covering the same period.
15.4 In case of a lump sum where VENDOR and Company agree, prior to PURCHASE ORDER for construction work award, on a payment schedule, such a schedule shall be linked to any MILESTONE DATE and the COMPLETION DATE. Invoices for progress payments shall be backed up by a copy of a Progress Payment Certificate stating the MILESTONE(s) achieved. If no MILESTONE(s) have been achieved during the month, the Progress Payment Certificate shall show the physical progress value of the previous month.
15.5 The last Progress Payment Certificate shall only be issued after acceptance of the WORK.
15.6 Company shall pay 90% of the amount of all approved invoices for progress and/or downpayments within thirty (30) calendar days after receipt of the correctly prepared invoice.
15.7 Company shall retain 10% of the amount of all approved invoices for progress and/or downpayments until the expiry of the guarantee period or until the receipt from VENDOR of an "on demand" Bank Guarantee in a form acceptable to Company or OWNER.
15.8 VENDOR shall invoice the retained 10% of the total PURCHASE ORDER value in respect of the WORK at the expiry of the guarantee period or upon issue of a Bank Guarantee in a form acceptable to Company or OWNER. Company shall pay the invoiced amount within thirty (30) calendar days after receipt of the correctly prepared invoice.
15.9 Payment to VENDOR shall not be interpreted as an acceptance of the WORK or any part thereof and shall not preclude Company's right of disputing any of the items involved.
16. Claims
16.1 VENDOR shall give Company written notice within ten (10) working days following the occurrence or discovery of any item or event which VENDOR knows, or reasonably should know, may result in a request for additional compensation under the PURCHASE ORDER or a change in a MILESTONE DATE or the COMPLETION DATE. Within twenty (20) working days following the written notice, VENDOR shall supply Company with a statement supporting VENDOR's claim, which statement shall identify the particular contract articles under which VENDOR is claiming, together with the necessary supporting documents which shall include a detailed estimate of the additional compensation or time period.
16.3 Company shall not be liable for, and VENDOR hereby waives any claim or potential claim of VENDOR to Company or OWNER of which VENDOR knew or should have known and which was not reported by VENDOR in accordance with the provisions of this article.
16.2 Company and VENDOR shall endeavor to satisfactorily settle any claims. Irrespective of pending negotiations vendor shall continue to execute the WORK including any disputed parts thereof upon being instructed to do so in writing by Company.
16.3 In order to avoid disturbing a smooth execution of the WORK and to safeguard the working relationship between Company and VENDOR at the SITE, claims remaining unsettled in the opinion of the Company and VENDOR representatives shall be handled by Company's and VENDOR's respective home offices.
17. Use of the Work and Acceptance
17.1 Company and/or OWNER and/or their respective contractors shall have the right to use and occupy the WORK or part thereof before its completion. Such usage or occupation shall not relieve VENDOR from any of his obligations or liabilities under the PURCHASE ORDER, nor shall it be construed as evidence of Company's acceptance of the WORK or part thereof, nor shall it be grounds for a change to a MILESTONE DATE or the COMPLETION DATE.
Damage to any part of the WORK arising from such use and occupancy and caused by weakness of structural parts or by defective MATERIALS or workmanship shall be for VENDOR's account.
17.2 When VENDOR considers that the WORK, or a part of the WORK needed for early operation, is complete, VENDOR shall notify Company thereof. Within fifteen (15) working days Company shall either issue to VENDOR a Certificate of Acceptance certifying that the criteria of the PURCHASE ORDER have been satisfied, or shall notify VENDOR of the deficiencies still to be remedied or activities to be completed before a Certificate of Acceptance will be issued.
18. Release of Liens, Retention and Bank Guarantee
18.1 Final progress payment shall not become due until VENDOR has delivered to Company a satisfactory form of affidavit providing a complete release of all rights to liens or retention arising, or which may arise, out of the PURCHASE ORDER and including a release and indemnification from all debts, claims, demands, damages, actions and causes of action, whatsoever, arising under, or in any way pertaining to the PURCHASE ORDER.
18.2 The Release of Liens shall accompany VENDOR's last invoice for progress payment, shall make proper reference to said invoice and shall clearly state that said invoice represents, with the exception of retention monies, the last invoice to be submitted to Company in connection with the PURCHASE ORDER.
18.3 Retention monies shall be released at the end of the guarantee period for the WORK provided that Company shall be entitled to retain a sum which, in Company's opinion, represents the value of the WORK remaining to be done at the end of the guarantee period.
18.4 After providing a Release of All Liens and upon request of VENDOR, Company shall release the retention monies in exchange for a Bank Guarantee in a format and issued by a bank acceptable to Company, remaining in force until the expiry of the guarantee period and fully covering the retained value.
19. Safety, Health, Welfare and Environmental (SHWE)
19.1 VENDOR shall execute the WORK in strict accordance with all safety laws, rules, regulations and provisions issued by any competent authority and by Company and/or OWNER, pertaining to health, safety and welfare of personnel which are applicable to VENDOR or to the WORK and the environment.
19.2 When moving onto the SITE, VENDOR shall nominate in writing to Company one employee to be responsible for safety.
19.3 VENDOR shall supply and maintain adequate first-aid facilities for his own and his SUBCONTRACTORS' personnel in accordance with the applicable local or national regulations.
19.4 VENDOR shall supply and maintain adequate fire extinguishers for his CONSTRUCTION EQUIPMENT and TEMPORARY FACILITIES in accordance with the applicable local or national regulations.
19.5 VENDOR is responsible for taking all SHWE precautions and for the safe execution of the WORK. The issuing of work permits or safety permits by Company or OWNER for work in areas where such permits are required does not relieve VENDOR from his responsibilities.
19.6 In the event that VENDOR has not taken all necessary SHWE precautions and/or does not meet all safety requirements, the work shall be immediately interrupted and shall not be restarted until all necessary precautions have been taken and all necessary requirements have been met. VENDOR is solely responsible for any delay or additional costs which may arise as a result of such a suspension.
19.7 VENDOR shall immediately notify Company of any incident and/or personal injury and/or accident arising out of the execution of the WORK.
VENDOR shall confirm such notification in writing, giving all relevant facts and shall fully cooperate with Company and/or OWNER in a subsequent investigation. Company and OWNER shall have access to all documentation.
19.8 Explosives, inflammable and other hazardous materials shall not be brought onto the SITE or stored on the SITE without prior approval by Company.
19.9 VENDOR shall follow the directions of Company and/or the OWNER's representative responsible for safety.
20. Security
20.1 VENDOR shall execute the WORK in strict accordance with all security laws, rules, regulations and provisions given by any authority and by Company and/or OWNER.
20.2 VENDOR shall supply and maintain adequate security to protect MATERIALS, CONSTRUCTION EQUIPMENT and TEMPORARY FACILITIES at all times.
20.3 Whenever it becomes necessary for VENDOR to remove MATERIALS, CONSTRUCTION EQUIPMENT or TEMPORARY FACILITIES from the SITE, a Release Statement must be signed by Company before removal.
20.4 VENDOR shall follow the directions of Company and/or the OWNER's representative responsible for security.
21. Preservation and Maintenance of the Site
21.1 VENDOR shall maintain the SITE in a neat and orderly condition and shall promptly store or remove any debris and waste. If, upon receipt of written notice by Company, VENDOR fails to comply with his obligations, Company may remove or cause to be removed such debris and waste at VENDOR's expense.
21.2 VENDOR shall preserve and protect all existing vegetation such as trees, shrubs and grass on or adjacent to the SITE which is not to be removed and which does not unreasonably interfere with the WORK.
21.3 VENDOR shall preserve and protect all fossils, coins, articles of value or antiquity and structures and other remains or things of geological or archaeological interest discovered at the SITE. All such finds shall, as between Company and VENDOR, be deemed to be the absolute property of Company or OWNER as the case may require. VENDOR shall take reasonable precautions to prevent his personnel or any other persons from removing or damaging any such article or thing and shall immediately upon discovery thereof and before removal notify Company of such discovery and carry out at the expense of Company, Company's instructions as to the disposal of the same.
21.4 On acceptance of the WORK, VENDOR shall leave the SITE in a safe and clean condition to the entire satisfaction of Company.
22. Direction and Approval
Any direction, notification, approval, review, comment or the like by Company shall not relieve VENDOR of any of his duties or responsibilities under the PURCHASE ORDER except when such direction, notification, approval, review, comment or the like is in writing and specifically mentions such relief.
23. Compliance with Law
VENDOR shall in execution of the WORK comply with all applicable laws, orders, rules and regulations and bylaws of government or local authorities and shall indemnify and hold Company and OWNER harmless from and against any and all liabilities, claims, costs, losses, expenses and judgements arising from or based on any actual or asserted violation by VENDOR of any applicable laws, orders, rules and regulations and bylaws. VENDOR shall, at his own expense, procure all necessary Permits, Certificates and Licenses required in the name of VENDOR pertaining to the execution of the WORK.
24. Guarantees
24.1 Throughout the term and execution of the PURCHASE ORDER, VENDOR guarantees that the MATERIALS and the WORK are fit for the purpose expressly specified or manifestly implied in the PURCHASE ORDER and are free of defects in design (to the extent that such design is not furnished by Company), materials and workmanship until one (1) year after the date that the PLANT in which they are incorporated is placed in operation but not later than eighteen (18) months after Company has obtained mechanical completion from OWNER, irrespective of whether VENDOR's engineering designs, data or information have been reviewed, commented upon or approved by Company or have been incorporated in the PURCHASE ORDER; provided, however, that said MATERIALS or WORK are not subjected to conditions more severe than described or implied in the PURCHASE ORDER.
24.2 If any item of MATERIALS or WORK not meeting this guarantee is discovered during said period and VENDOR is notified thereof, VENDOR shall promptly, and at his own expense, make such alterations, repairs and replacements as may be necessary to meet this guarantee. Should VENDOR fail to take any action required according to this article, Company shall be entitled to take such action or to have such action taken and to recover from VENDOR all costs thereto.
24.3 Where defects or deficiencies cannot be corrected, the faulty MATERIALS shall be promptly removed at VENDOR's expense and VENDOR shall either:
a. furnish and install proper MATERIALS and perform rework and restoration of the WORK to the extent necessary to satisfy the requirements of the PURCHASE ORDER; or
b. reimburse all costs incurred by Company for removal and installation of replacement MATERIALS including transportation and, where involved, those costs for rework and restoration of the WORK.
24.4 Repairs or replacements shall be subject to the same guarantees as heretofore for a period of one (1) year from the date that the plant in which they are incorporated is placed in operation or one (1) year from the date of such repairs or replacements, whichever is the longer.
24.5 The preceding guarantees shall also extend for the benefit of OWNER.
25. Termination for Default and Petition in Bankruptcy
25.1 In the event VENDOR fails to comply with any requirement of law or the PURCHASE ORDER such as, but not limited to, failure to comply with specifications, instructions and conditions of the PURCHASE ORDER, to furnish an adequate and sufficiently skilled labor force, or to rectify omissions, imperfections or faults in the WORK within a reasonable time limit as instructed by Company, or in the event of the presentation of a petition in bankruptcy by VENDOR or any other party or in the case of a voluntary or compulsory liquidation of VENDOR, Company shall be entitled to immediately terminate the WORK or any part thereof. Company shall notify VENDOR of such termination in writing.
25.2 In the event of such termination, Company may take possession of the WORK in its existing state together with all MATERIALS, whether or not already incorporated in the WORK and CONSTRUCTION EQUIPMENT and may finish the WORK by whatever method it may deem expedient, including engaging third parties.
25.3 Immediately after notification of termination of the WORK, VENDOR shall deliver to Company all drawings, specifications and information related to the WORK, irrespective as to whether such drawings, specifications or information are supplied by Company or VENDOR.
25.4 Immediately after notification of termination of the WORK and if Company so instructs, VENDOR shall take all steps necessary to fully vest in Company the rights and benefits of VENDOR under existing contracts VENDOR has with third parties. In the absence of such instruction, VENDOR shall terminate the contracts with these third parties.
25.5 VENDOR shall enable Company, to the extent desired by Company, to take over any or all MATERIALS, CONSTRUCTION EQUIPMENT and TEMPORARY FACILITIES owned by VENDOR, for which Company shall compensate VENDOR.
25.6 In the event of termination, Company shall pay VENDOR the value of the WORK executed. Company has the right to deduct from such value the unpaid value of WORK executed by subcontractors of VENDOR, retention money and all costs and expenses incurred or to be incurred by Company because of such termination.
25.7 Company is allowed to retain all payments until the costs and expenses, because of termination, have been determined. In the event that the total of payments made by Company to VENDOR up to the time of termination exceeds the total payable by Company under the foregoing conditions, VENDOR shall immediately refund such excess failing which Company shall have the right to sell in such a way as Company may deem proper any or all MATERIALS, CONSTRUCTION EQUIPMENT and TEMPORARY FACILITIES of VENDOR in order to recover these costs and expenses out of the proceeds of such sales.
25.8 The aforementioned does not prejudice the exercise of any other rights or remedies which may be available to Company.
25.9 VENDOR shall remain liable under the terms of the guarantees for the portion of the WORK executed and for the MATERIALS supplied up to the time of termination.
26. Continuity
In order to secure the proper continuation and timely completion of the WORK in the event of default or a forfeiture by VENDOR, VENDOR shall include in all of its contracts with third parties, a provision similar to the following:
"Company/OWNER shall have the right to take over this agreement on the same terms and financial conditions as are applicable to VENDOR, in the event of termination for reason of default by or forfeiture of VENDOR, provided that Company/OWNER so request by written notice within ten (10) working days after the date of such termination and provided further that Company/OWNER undertake to fulfill all payments due as of such takeover date."
27. Audit Rights
27.1 VENDOR shall keep and cause his subcontractors to keep, in accordance with generally accepted accounting practices, books, records and accounts pertaining to performance of the WORK, including VENDOR's and his subcontractors' personnel records, correspondence, instructions, plans, drawings, receipts, and such other documentation and related systems and controls necessary for an accurate audit and verification of reimbursable costs. VENDOR shall preserve, and shall cause his subcontractors to preserve, said documents during the performance of the WORK and for a period of three (3) years after ACCEPTANCE.
27.2 VENDOR shall permit and cause his subcontractors to permit, at reasonable times during the performance of the WORK and for a period of three (3) years after ACCEPTANCE, representatives of Company and/or OWNER to interview VENDOR's and his subcontractors' personnel, review VENDOR's and his subcontractors' accounting and cost control systems and inspect books, records, accounts and other documents set forth in Article 27.1 and make copies thereof, as necessary to audit and verify the completeness and accuracy of reimbursable costs contained in invoices submitted by VENDOR, or for any reasonable purpose.
27.3 If an audit indicates errors in VENDOR's invoices, VENDOR shall make appropriate invoice adjustments or promptly refund overpayments.
27.4 As applicable, VENDOR shall include the above audit rights in all his contracts with third parties.
28. Title
28.1 All drawings, specifications and other documents supplied by Company to VENDOR remain the property of Company.
28.2 Unless otherwise stated in the PURCHASE ORDER, title to all drawings, specifications and other documents supplied by VENDOR shall vest in Company or OWNER as required and Company and/or OWNER shall have the right to use these drawings, specifications and other documents for any purpose whatsoever without any obligation of any kind to VENDOR.
28.3 Within five (5) working days after ACCEPTANCE of the WORK and at any other time when instructed by Company, VENDOR shall hand over to Company all drawings, specifications and other documents whether supplied by Company or VENDOR.
28.4 Title to the WORK, whether completed or in course of execution, shall vest in Company or OWNER as required. VENDOR agrees that OWNERSHIP of MATERIALS shall ultimately be vested in Company upon delivery to the SITE of the respective MATERIALS. The OWNERSHIP of MATERIALS supplied by VENDOR and found to be surplus upon ACCEPTANCE of the WORK, or earlier, shall pass back to VENDOR.
29. Confidentiality
29.1 VENDOR shall hold in confidence and shall not copy, reproduce, use, divulge or disclose to others any information made available by Company or OWNER in connection with the PURCHASE ORDER except to the extent necessary for the sole purpose of executing the WORK. In the event VENDOR requires to divulge or disclose any information to others, VENDOR shall obtain prior written approval by Company and shall ensure that the information is protected by a confidentiality provision.
29.2 VENDOR shall not disclose the existence of the PURCHASE ORDER or the name of Company or OWNER for reference, publicity, advertising, business development or other purposes without the prior written approval of Company.
29.3 VENDOR shall not take any photographs or motion pictures at the SITE without prior approval of Company.
30. Patents
30.1 VENDOR hereby grants to Company and OWNER a nonexclusive, royalty free, irrevocable license under patents now or hereafter owned by VENDOR which cover any apparatus, article, process or composition used or produced in the performance of the WORK.
30.2 VENDOR shall indemnify and hold Company and OWNER harmless from all costs, expenses and/or damages arising out of any infringements or claims of infringements of patents in the use or sale of MATERIALS and CONSTRUCTION EQUIPMENT except MATERIALS and CONSTRUCTION EQUIPMENT furnished pursuant to Company's and/or OWNER's design.
30.3 VENDOR shall promptly notify Company if VENDOR has or acquires knowledge of any patent under which a suit for an alleged infringement reasonably could be brought in connection with MATERIALS and CONSTRUCTION EQUIPMENT to be furnished pursuant to Company's and/or OWNER's design.
30.4 Patents shall include copyrights and similar rights.
31. Insurance
31.1 Insurance by Company/Owner Without limiting the obligations or liabilities of the VENDOR and his SUBCONTRACTORS, VENDOR and his subcontractors shall be coinsured parties on the Construction All-Risk insurance policy to be maintained by Company or OWNER, or be nominated parties to an indemnification arrangement to be specified, with regard to physical loss and/or damage to the WORK and/or the PLANT.
VENDOR is deemed to have full knowledge of the terms and conditions of the insurance or indemnification arrangement in force, a copy or extract of which may be seen at the office of Company.
31.2 Insurance by Vendor VENDOR shall procure or maintain the following insurances at his own expense:
a. Personnel
VENDOR shall provide cover for his personnel, whether engaged directly or indirectly in the WORK, in accordance with the statutory requirements of the government or governments having jurisdiction over VENDOR's personnel.
b. Liability Insurance
VENDOR shall maintain his existing insurances such as his liability insurance for bodily injury, death and property damage. Such insurances shall include a waiver of recourse in favor of OWNER and Company.
c. Automobile and Motorized Equipment
VENDOR shall maintain or arrange for legal liability insurance for all automobile and motorized CONSTRUCTION EQUIPMENT used or furnished by VENDOR, at least to the limits required by law for public roads. Such insurance has to remain in force whilst on the SITE and has to include a waiver of recourse in favor of OWNER and Company.
d. CONSTRUCTION EQUIPMENT and TEMPORARY FACILITIES
VENDOR shall maintain or arrange for all-risk insurance coverage for loss and/or damage to CONSTRUCTION EQUIPMENT, including automobile and motorized equipment, and TEMPORARY FACILITIES owned or hired by VENDOR. Such insurance shall include a waiver of recourse in favor of OWNER and Company.
31.3 VENDOR shall immediately inform Company of any injury, loss or damage arising out of or in consequence of the PURCHASE ORDER and VENDOR shall adhere to the damage reporting procedures in force at SITE. VENDOR shall refrain from any act or commitment, whether direct or implied, which could jeopardize the position of any of the coinsured parties under the insurance policy or the position of the underwriters.
31.4 Upon request by Company, VENDOR shall furnish copies of his insurance policies. Should VENDOR at any time refuse to provide the insurance coverage required or should such insurance be canceled, of which VENDOR shall immediately notify Company, Company shall have the right to procure the same in VENDOR's name and deduct such costs from the sums due or to become due to VENDOR.
32. Liability
32.1 VENDOR assumes full responsibility for: a. loss of and/or damage howsoever arising to any of VENDOR's property or the property of VENDOR's personnel and for all sickness, injury or death of VENDOR's personnel arising out of or in connection with the PURCHASE ORDER; b. loss of and/or damage howsoever arising to any CONSTRUCTION EQUIPMENT and TEMPORARY FACILITIES.
32.2 VENDOR shall take every practicable precaution not to injure any persons or damage the WORK, MATERIALS, PLANT and any adjoining or other property. In the event of any injury, death or damage, either directly or indirectly, arising out of or in connection with the PURCHASE ORDER, VENDOR shall satisfy all claims made arising therefrom. VENDOR shall indemnify and hold harmless Company and/or OWNER from and against all action, suit, claim, demand, damage, cost, charge and expense arising in connection therewith.
Nothing contained in this Article 32.2 shall be deemed to render VENDOR liable for injury, death or damage to persons or property resulting solely from a negligent act or omission of Company, their employees or their SUBCONTRACTORS not being engaged by VENDOR.
32.3 Any losses and/or damages which are not paid by insurance or the indemnification as referred to in Article 31.1, paragraph 2, and the amounts of deductibles as defined in the insurance policies or in the specified arrangements of indemnification shall be for VENDOR's account.
32.4 In case that in connection with VENDOR's WORK any claims are made against OWNER or Company, or seizures are made in any manner of any of their properties, Company may retain as may be necessary all amounts due or to become due to VENDOR, until such claims have been satisfied and such seizures have been taken away.
32.5 VENDOR, his employees or his SUBCONTRACTORS shall not be liable for loss of use, loss of time, loss of profit or any other indirect or consequential damage incurred by OWNER or Company except to the extent such loss or damage is recoverable from insurance.
33. Hazardous Substances Indemnification
The WORK may involve activities falling under the coverage of laws and regulations relating to the environment and may involve the potential of exposure of individuals to hazardous, toxic, or contaminated substances or may require the handling of same. Notwithstanding any other provisions contained elsewhere in this PURCHASE ORDER to the contrary, VENDOR shall protect, defend, indemnify, and hold harmless OWNER, Company, its subcontractors, if any, and its and their officers, directors, employees, agents, and representatives from and against any and all claims, losses, costs, expenses, judgements, damages (including incidental or special damages), penalties and liabilities suffered by Company or OWNER as a result of or arising out of or in connection with the performance of work or services as it relates to the regulation of the environment, including without limitation, those activities relating to:
1. Handling, storage, or disposal of hazardous, toxic, or contaminated substances, whether above or below ground;
2. Hazardous waste exposure;
3. Pollution or contamination of air, land, water, property, or person;
4. Leakage or spills of hazardous substances, whether above or below ground; and
5. Removal and/or remediation.
VENDOR shall at all times retain exclusive control over ad final approval of and shall be solely responsible for evaluation implementation, and all other decisions relating to environmental laws, rules, and regulations. Further, VENDOR, by its execution thereof, expressly releases Company from future liabilities which may arise in connection with such decisions as they relate to environmental regulation. This indemnification shall apply whether such regulation of the environment and safety is pursuant to Federal, State, or Local laws, and in any event, including, without limitation, all respective implementing regulations as may be in effect from time to time.
Further, this indemnification shall apply whether (1) the activities involve workers, employees, or agents of OWNER, Company, VENDOR, or third parties; (2) the party seeking indemnification is responsible for the situation giving rise to claim; or (3) the claim results in a monetary obligation that exceeds VENDOR's contractual commitment hereunder; provided however that VENDOR shall not be liable for the indemnification hereunder to the extent that any such claim results for the sole or intentional misconduct of OWNER or Company. A claim shall include all costs, expenses, penalties, attorneys' fees, fines, and civil sanctions arising out of or related to such claim, including all those related to the environmental, safety, and health aspects thereof, as well as any costs related to investigation, removal, remedial action or other clean-up of hazardous, toxic, or contaminated material.
34. Suspension
34.1 Company shall at any time, at their sole discretion, have the right to suspend the WORK or any part thereof. Company shall notify VENDOR of such suspension by giving five (5) working days' notice except in cases of emergency endangering persons, operations, equipment or property when notice shall be effective immediately.
34.2 Upon suspension, VENDOR shall continue to execute any unsuspended WORK and shall take all necessary actions to maintain and safeguard the suspended portion of the WORK.
34.3 Within five (5) working days of written notice, VENDOR shall resume the suspended part of the WORK. In the event VENDOR fails to adhere to such notice, termination for default shall be applicable. Failure by Company to order a resumption within one hundred and twenty (120) calendar days following suspension shall entitle VENDOR to abandon the suspended portion thereof.
34.4 Company shall reimburse VENDOR only those costs as a result of suspension that have been approved by Company.
35. Cancellation
35.1 Company shall at any time, for any reason at their sole discretion, have the right to cancel the WORK or any part thereof. Company shall notify VENDOR of such cancellation by giving five (5) working days' notice, except in cases of emergency endangering persons or property when notice shall be effective immediately.
35.2 Immediately after notification of cancellation of the WORK, VENDOR shall deliver to Company all drawings, specifications and information related to the WORK, irrespective as to whether such drawings, specifications or information are supplied by Company or VENDOR.
35.3 Immediately after notification of cancellation of the WORK and if Company so instructs, VENDOR shall take all steps necessary to fully vest in Company or OWNER as required the rights and benefits of VENDOR under existing contracts with third parties. In the absence of such instruction, VENDOR shall terminate the contracts with these parties.
35.4 In the event of cancellation, Company shall reimburse VENDOR the cost of MATERIALS incorporated in the PLANT and the value of the WORK executed up to the time of cancellation. Other costs shall only be paid when they have been approved by Company.
35.5 VENDOR shall remain liable under the terms of the Guarantees for the portion of the WORK executed and for the MATERIALS supplied up to the time of cancellation.
36. Termination, Suspension, Cancellation Liabilities
In the event of termination, suspension or cancellation of the WORK or any part thereof, neither Company nor OWNER shall be liable to VENDOR for any loss or damage either direct or consequential, as a result of such termination, suspension or cancellation except as defined in Articles 25.0, 34.0 and 35.0 respectively.
37. USA Export Administration Regulations
VENDOR shall not disclose or ship, directly or indirectly, any information made available to VENDOR pursuant to or in connection with the PURCHASE ORDER or the direct product thereof (equipment, plant, process or service) to any country where such disclosure or shipment is restricted by the laws and regulations of the United States of America.
38. Assignment and Subcontracting
38.1 VENDOR shall not assign or subcontract the PURCHASE ORDER, nor any part thereof, nor any interest therein, to a third party, to an associated or subsidiary company of VENDOR, to a company with whom VENDOR is engaged in a joint venture, nor any other company or organization without the prior written approval of Company, both in respect to the portion to be assigned or subcontracted and the party to which VENDOR proposes to assign or subcontract.
38.2 Such approval by Company shall not relieve VENDOR from any of his responsibilities, obligations or liabilities under the PURCHASE ORDER and VENDOR shall bear the entire responsibility for his assignees or SUBCONTRACTORS, as the case may be, and their respective employees in the same way as for his own employees. VENDOR shall ensure that his obligations hereunder, insofar as necessary or practicable to secure proper and timely execution of the WORK, shall be fully reflected as obligations of assignees or SUBCONTRACTORS respectively in all assignments or subcontracts and that relevant information and instructions from Company shall be passed on to these assignees or SUBCONTRACTORS respectively.
38.3 No assignment or subcontract shall bind or purport to bind Company and each assignment or subcontract shall provide for the possibility of its immediate termination in the event of termination or cancellation of the PURCHASE ORDER.
38.4 All assignments and subcontracts issued by VENDOR for the supply of MATERIALS or WORK shall be in writing and shall include that the assignment or subcontract is subject to expediting and inspection by Company. VENDOR shall furnish Company with three (3) unpriced copies of each assignment or subcontract immediately following its issue.
38.5 Company is entitled to assign the PURCHASE ORDER at any time to an affiliated Company or to OWNER, upon giving VENDOR at least ten (10) calendar days prior written notice.
39. Force Majeure
39.1 Loss or damage or delay in, or failure of performance of either party hereto, shall not constitute default hereunder or give rise to any claims for damages if and to the extent that such loss, damage, delay or failure is caused by force majeure which is, for this purpose, defined as occurrences beyond the control of the party affected, and which, by the exercise of reasonable diligence, said party is unable to prevent.
39.2 Upon the occurrence of force majeure, the party so affected shall promptly give notice to the other party, to be confirmed in writing, and shall use its best efforts to mitigate the effect upon fulfillment of the WORK and shall resume performance of the WORK as soon as possible.
40. Applicable Law
The PURCHASE ORDER shall be governed by the law of The Netherlands. All disputes arising in connection with the PURCHASE ORDER shall be settled