BN-S-UP-101 General Conditions of Subcontract for Professional and Engineering Services

Detalles: Última actualización: 30 Septiembre 2013

Table of Contents

Definitions
Services
Guarantees
Liability
Termination
Acceptance of Services
Permits and Licenses
Suspension of Services
Invoicing and Payments
Changes
Insurance
Indemnity
Schedule Dates / Completion Date
Subcontracts and Assignments
Confidential Information
Independent Contractor
Publicity
Laws and Regulations
Inspection and Access
Arbitration
Applicable Law
Survival
Language
Waiver of Liens
Audit Rights
Intellectual Property Rights

1. Definitions

The following definitions shall apply to the Subcontract. Words imparting the singular only also include the plural and vice versa where the context requires.

1.1 The term ‘Services’ means materials, supplies, spare parts, services and work required to be supplied or performed by Subcontractors all as stated in the Agreement including drawings, documents, manuals, instructions, spare part lists and the like relating there to.

1.2 The term ‘Subcontract’ means the Agreement, these General Conditions of Subcontract for Professional and Engineering Services, and all other attachments, specifications, drawings and documents incorporated into the Agreement by reference or attachment including subsequent revisions to the aforementioned documents.

1.3 The term ‘Owner’ means Company’s client who is establishing the plant or facilities in which the services are intended to be used (hereinafter jointly and severally ‘Project’).

1.4 The term ‘Price’ means the total financial consideration specified in the Agreement and payable to Subcontractor for the supply of Services in accordance with the Agreement.

1.5 The term ‘Company’ means the company who has awarded the Subcontract having its office located in The Hague, The Netherlands, and its legal successors and assignees.

1.6 The term ‘Subcontractor’ means the person or company with whom the Agreement has been concluded by Company and includes all employees, agents, representatives of Subcontractor and all subcontractors of the Subcontractor, unless where the context beyond doubt, requires otherwise.

2. Services

2.1 SUBCONTRACTOR guarantees that the SERVICES shall be in accordance with the provisions of the SUBCONTRACT, and shall, in any event, :

be performed with due diligence and efficiency;
be in accordance with sound principles and international standards for design and engineering;
follow the requirements of an agreed time schedule;
show first-class skill and workmanship.

2.2 SUBCONTRACTOR shall at all times ensure that the SERVICES are carried out by an appropriate organization, fully qualified and experienced to warrant the performance of the SERVICES in accordance with this SUBCONTRACT.

2.3 SUBCONTRACTOR shall not withdraw or replace any member of its key personnel employed on the SERVICES without Company’s prior written approval.

SUBCONTRACTOR shall forthwith, without extra cost to Company, replace any member of SUBCONTRACTOR’s personnel, Agency personnel and/or agreed staff of SUBCONTRACTOR’s Affiliate who, in Company’s opinion, is inadequate in competence.

3. Guarantees

3.1 SERVICES supplied by SUBCONTRACTOR under this SUBCONTRACT, shall be performed by SUBCONTRACTOR, only.

3.2 SUBCONTRACTOR guarantees to perform the SERVICES in accordance with the highest professional standards. SUBCONTRACTOR is hereby given notice that Company will be relying on the accuracy, competence and completeness of SUBCONTRACTOR's SERVICES hereunder.

3.3 SUBCONTRACTOR guarantees that the SERVICES, and the results thereof, as completed shall :

be free from faults and defects, and
have been performed in accordance with all provisions of the SUBCONTRACT.

In the event of any breach of the guarantees referred to Article 3 which may become apparent before the expiration of a period of 12 months after the date of Acceptance of the SERVICES, SUBCONTRACTOR shall promptly upon Company’s written request to that effect, and at SUBCONTRACTOR’s own expense:

amend any item or portion of work and/or
provide any additional item or portion of work and/or
take any remedial measure necessary or reasonably desired by Company.

4. Liability

4.1 Without prejudice to Article 3 and Article 12 and to Company’s other rights under the SUBCONTRACT or the law, SUBCONTRACTOR shall be liable for all costs and damages directly or indirectly incurred or suffered by Company and/or OWNER on account of SUBCONTRACTOR’s “Faulty Workmanship” (which, for the purpose of this Article 4.0 is defined as failing to comply with the requirements of Article 3.3 ), arising from any event which occurred before the expiration of a period of 12 months after the date of Acceptance of the SERVICES.

The cost and damages referred to in the foregoing sentence shall include but not be limited to:

Costs and damages resulting from replacement of any item of material on the grounds of Faulty Workmanship.
Costs and damages resulting from termination of the SUBCONTRACT on he grounds of Faulty Workmanship.

4.2 In the event of costs or damages incurred as a result of a necessary replacement of any item of material ordered on the ground of Faulty Workmanship, such costs or damages shall include but not be limited to the following:

The purchase cost and the cost connected with the ordering and delivery of any item of material ordered on the ground of Faulty Workmanship.
The purchase cost and the cost connected with the ordering and delivery of the replacing item of material, in so far as these costs exceed the purchase cost and the cost connected with the ordering and delivery of the item of material concerned in the event this item could have been ordered at the appropriate time on the ground of correct Workmanship.
The cost of installing any item of material ordered on the ground of Faulty Workmanship and the removing thereof; the cost of installing the replacing item of material concerned had this item been installed at the appropriate time on the ground of correct Workmanship.

4.3 SUBCONTRACTOR shall have free disposal of any item of material ordered on the grounds of Faulty Workmanship, unless Company and/or OWNER wishes to retain such item of material at a price to be indicated by Company and payable by Company or OWNER to SUBCONTRACTOR.

4.4 When determining SUBCONTRACTOR’s liability referred to in section 4.1, the proceeds of the sale by SUBCONTRACTOR of the rejected item to any third party as well as any other financial benefit SUBCONTRACTOR may acquire from having such item at its disposal shall be taken into account.

4.5 The cost and damages referred to in this Article 4 shall, however, exclude loss of profit and other consequential losses, except to the extent that SUBCONTRACTOR’s failure to perform as agreed amounts to gross negligence, recklessness or willful misconduct.

4.6 Within 30 days of receipt of Company’s invoice therefor SUBCONTRACTOR shall pay any of the costs and damages for which SUBCONTRACTOR is liable pursuant to the foregoing paragraphs. Company shall inform SUBCONTRACTOR in writing of the cause and nature of such costs and damages.

4.7 It is explicitly agreed that Company’s liability vis-à-vis SUBCONTRACTOR, howsoever based or arising, shall be limited to any direct damages resulting from Company’s gross negligence or willful misconduct, subject to an aggregate maximum of half the amounts paid by Company under the SUBCONTRACT until the event causing the damages, or the sum paid to Company under its insurance coverage, if any, whichever amount will be the lowest.

5. Termination

5.1 Without prejudice to its rights in respect of termination or otherwise under the SUBCONTRACT or the law Company shall have the right, at any time and at its absolute discretion, to terminate the SUBCONTRACT without any notice of default or judicial intervention being required for the purpose. Such termination shall become effective immediately after delivery of a written notice to SUBCONTRACTOR or on such later date specified in that notice, whereupon SUBCONTRACTOR shall promptly discontinue any further performance of the SERVICES. Company shall state the reason for termination in the aforesaid written notice if termination should take place on the ground of any events mentioned in section 5.3 under (b) sub 1 of this Article 5.

5.2 In the event of such termination, Company will pay SUBCONTRACTOR:

In accordance with the terms of the SUBCONTRACT with respect to the part of the SERVICES satisfactorily performed prior to the effective date of such termination.
of the man-hour portion of the invoice covering the month prior to the effective date of termination to compensate SUBCONTRACTOR for loss of anticipated profit, idle time and/or other inconvenience as a result of termination of the SUBCONTRACT pursuant to this Article 4.5.

5.3 It is understood that:

in no case shall the amounts due pursuant section 5.2 (a) and (b), of this Article 5 in aggregate exceed the SUBCONTRACT Price if no termination would have taken place, and
the amount referred to in section 5.2 (b) of this Article 5 shall not be paid if such termination takes place in the event that:

SUBCONTRACTOR fails to carry out its obligations under the SUBCONTRACT owing to SUBCONTRACTOR’s fault or negligence and/or for circumstances considered to be for SUBCONTRACTOR’s risk and/or;
80% or more of the SERVICES have been completed on the effective date of such termination.

5.4 Upon termination SUBCONTRACTOR shall promptly return to Company the Tender Package and deliver to Company all original tracings and, in case of computer aided design, drawings, the disks and/or tapes of all drawings, specifications, requisitions, calculations and other documents prepared under the SUBCONTRACT up to the effective date of termination.

6. Acceptance of Services

6.1 Completion of Services

When SUBCONTRACTOR considers that the SERVICES have been completed, it shall inform Company thereof in writing. Within thirty (30) days thereafter Company shall advise SUBCONTRACTOR in writing either:

that it accepts the SERVICES, or
that it has found the SERVICES or part thereof

not free from faults and defects, and/or
not to have been performed in accordance with all provisions of the SUBCONTRACT.

In the case of b) sub 1 or b) sub 2 SUBCONTRACTOR shall immediately and at its own expense take all remedial action required so as to enable Company to give written acceptance. Company shall be deemed to have accepted the SERVICES if it has not advised SUBCONTRACTOR within thirty (30) days’ period referred to in this section 6.1.

6.2 Acceptance of SERVICES shall not relieve SUBCONTRACTOR of any of its obligations and/or liabilities under Articles 3.0, 4.0 and 12.0.

7. Permits and Licenses

SUBCONTRACTOR shall (without additional compensation) keep current all governmental permits (other than Building Permits), certificates and licenses (including professional licenses) necessary for SUBCONTRACTOR to perform the SERVICES.

8. Suspension of Services

Company may, by written notice to SUBCONTRACTOR, suspend further performance of the SERVICES and later may, by written notice to SUBCONTRACTOR, withdraw all or part of the suspension. Any proposed changes to the scheduled time of completion of the SERVICES resulting from said suspension must be submitted by SUBCONTRACTOR to Company in accordance with the provisions of Article 10.0, Changes.

9. Invoicing and Payments

Subject to the terms of this SUBCONTRACT, and at Company's written request, SUBCONTRACTOR shall furnish evidence satisfactory to Company that all labor furnished and material consumed by SUBCONTRACTOR during the invoice period has been paid in full and that the SERVICES are not subject to liens or claims on account thereof. Company may withhold payment of the invoice until SUBCONTRACTOR furnishes such evidence. SUBCONTRACTOR will defend, indemnify and hold Company harmless from and against all claims, loss or expense arising from or relating to liens or claims by SUBCONTRACTOR's suppliers.

SUBCONTRACTOR’s invoice covering the last portion of the SERVICES shall so be identified and shall be in Company’s possession within fifteen (15) days of the month in which Acceptance of the SERVICES has been given.

Company shall at all times have the right to carry out audits of SUBCONTRACTOR’s books and records in so far as they relate to the SERVICES or to have such audits carried out by an auditing company appointed by Company.

10. Changes

10.1 Company shall have the right at any time to order any Change in the SERVICES.

10.2 If required by Company, SUBCONTRACTOR shall furnish to Company, and before the work connected with the Change in the SERVICES starts, a written statement specifying:

SUBCONTRACTOR’s estimate of the increase or decrease in the number of man-hours and the total cost involved as a result of the Change in the SERVICES contemplated.
Any effect such Change in the SERVICES may have on any other provision of the SUBCONTRACT.
Any other details as may be required by Company.

10.3 Changes in the SERVICES will be recorded on forms entitled “Change Request Form”.

10.4 Company will, to the extent Company agrees, acknowledge by signature on the “Change Request Form”, the Change in SERVICES concerned whereupon SUBCONTRACTOR shall start work on effecting the Change in SERVICES as agreed by Company, and said Change in SERVICES shall subsequently be deemed to be incorporated in the SERVICES.

10.5 In the event of a Change in SERVICES which has an impact on the SUBCONTRACT Price, the SUBCONTRACT Price will be adjusted in accordance with the agreed increase or decrease based on SUBCONTRACTOR’s tender.

10.6 Man-hours and cost related to Changes in the SERVICES shall be separately administrated and invoiced unless agreed otherwise between SUBCONTRACTOR and Company.

10.7 SUBCONTRACTOR shall give Company written notice within five (5) working days after any event which may give rise to a claim by SUBCONTRACTOR for a Change in the SERVICES.

11. Insurance

11.1 SUBCONTRACTOR shall maintain the insurance coverage set forth below:

Personnel
SUBCONTRACTOR shall provide cover for its personnel, whether engaged directly or indirectly in the SERVICES, in accordance with the statutory requirements of the government or governments having jurisdiction over SUBCONTRACTOR's personnel.
Liability Insurance
SUBCONTRACTOR shall maintain its existing insurance’s such as its liability insurance for bodily injury, death and property damage. Such insurance’s shall include a waiver of recourse in favor of OWNER and Company.
Automobile and Motorized Equipment
SUBCONTRACTOR shall maintain or arrange for legal liability insurance for all automobile and motorized Construction Equipment used or furnished by SUBCONTRACTOR, 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.
Construction Equipment and Temporary Facilities (if applicable)
SUBCONTRACTOR 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 SUBCONTRACTOR. Such insurance shall include a waiver of recourse in favor of OWNER and Company.

11.2 SUBCONTRACTOR shall immediately inform Company of any injury, loss or damage arising out of or in consequence of the SUBCONTRACT and SUBCONTRACTOR shall adhere to the damage reporting procedures in force at SITE. SUBCONTRACTOR shall refrain from any act or commitment, whether direct or implied, which could jeopardize the position of any of the co-insured parties under the insurance policy or the position of the underwriters.

11.3 Upon request by Company, SUBCONTRACTOR shall furnish copies of its Insurance Policies. Should SUBCONTRACTOR at any time refuse to provide the insurance coverage required or should such insurance be canceled, of which SUBCONTRACTOR shall immediately notify Company, Company shall have the right to procure the same in SUBCONTRACTOR's name and deduct such costs from the sums due or to become due to SUBCONTRACTOR

11.4 Subrogation against Company and OWNER and their officers, affiliates, employees, directors and agents, under SUBCONTRACTOR's insurance coverage pursuant to this Article shall be, and is hereby, waived. Evidence of such waiver satisfactory in form and substance to Company shall be exhibited in such certificates furnished hereunder.

12. Indemnity

12.1 SUBCONTRACTOR agrees to release, indemnify, hold harmless, and defend Company and OWNER, and their parents, affiliates, officers, employees, agents, and representatives, from and against any claim, demands, cause of action, loss, expense, or liability arising from or relating to:

Actual or asserted infringement, improper appropriation, or use of trade secrets, proprietary information, copyrights or patents; and
Injury to or death of persons (including the employees of Company, OWNER, SUBCONTRACTOR and its subcontractors) or damages to or loss of property (including the property of SUBCONTRACTOR, Company, or OWNER) arising directly or indirectly out of the acts or omissions to act of SUBCONTRACTOR or its subcontractors, or their employees or agents, in the performance of the Work, but excepting where the injury or death of persons or damage to or loss of property was caused by the sole negligence or willful misconduct of the party to be indemnified.
Failure by SUBCONTRACTOR to comply with any applicable law, regulation or statute, or with the terms of this SUBCONTRACT.

12.2 SUBCONTRACTOR's indemnity obligations shall apply regardless of whether the party to be indemnified was concurrently negligent, whether actively or passively, excepting only where the injury, loss or damage was caused solely by the negligence or willful misconduct of, or by defects in design furnished by, the party to be indemnified. SUBCONTRACTOR's defense and indemnity obligations shall include the duty to reimburse any attorneys' fees and expenses incurred by Company or OWNER for legal action to enforce SUBCONTRACTOR's indemnity obligations.

13. Schedule Dates / Completion Date

13.1 SUBCONTRACTOR warrants that any schedule will be reached in accordance with the Key-Date Schedule and that the SERVICES shall be ready for Acceptance on the Completion Date.

13.2 Prior to commencing the SERVICES and within the time limit established by Company SUBCONTRACTOR shall submit to Company its detailed schedule for the SERVICES, based upon the Key-Date Schedule and the Completion Date, and in the manner and detail required by Company.

13.3 SUBCONTRACTOR shall keep its detailed schedule for the SERVICES 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.

13.4 A Key-Date Schedule and/or Completion Date shall only be changed in the following circumstances:

Where the SERVICES quantity has been substantially increased by written Amendment to this SUBCONTRACT and the prior consent of Company has been obtained for a change to such date.
Where the SERVICES quantity has been substantially decreased by written Amendment to this SUBCONTRACT and the prior consent of Company has been obtained for a change to such date.
In the event of delay caused by damage to the SERVICES through the fault of one or more of Company’s other subcontractors, provided that SUBCONTRACTOR notifies Company in writing within two (2) working days of the occurrence and Company agrees to change to such date.
In the event of delay caused by Company exercising its right to temporarily suspend the SERVICES.

14. Subcontracts and Assignments

This SUBCONTRACT is personal to SUBCONTRACTOR and SUBCONTRACTOR shall not subcontract or assign the performance of any portion of these SERVICES without the prior written consent of Company. Any purported subcontract or subcontract not approved shall be void. SUBCONTRACTOR hereby agrees that Company may assign this SUBCONTRACT to OWNER, OWNER's designated representative, or to Company's affiliates.

SUBCONTRACTOR shall not be relieved of any of its obligations or liabilities under the SUBCONTRACT in respect on any portion of the SERVICES which may be performed by others.

15. Confidential Information

15.1 SUBCONTRACTOR agrees not to divulge to any third party nor to use for any purpose other than SUBCONTRACTOR's performance hereunder, any business or technical information of or relating to Company that is disclosed or acquired by SUBCONTRACTOR during the term of this SUBCONTRACT, except:

Information which is or properly becomes part of the public domain; or
Information which is in SUBCONTRACTOR's possession at the time of disclosure to or acquisition by SUBCONTRACTOR, provided SUBCONTRACTOR has the right of free and unlimited disclosure thereof.

15.2 The above obligations shall remain in effect for a period of five (5) years from the date of disclosure of the information, notwithstanding any prior completion, termination or suspension of the SERVICES.

16. Independent Contractor

16.1 SUBCONTRACTOR shall act as an independent contractor having responsibility for, and control over, the means and details of performing the SERVICES, and not as an employee or agent of Company.

16.2 Company will not withhold for income or social security taxes and SUBCONTRACTOR agrees to pay such taxes directly to the appropriate taxing authority. Similarly, Company will not provide workers' compensation benefits or any form of insurance or other fringe benefits that may be furnished to employees.

16.3 SUBCONTRACTOR shall remain fully liable to Company for any adverse affects of liabilities resulting from subcontracting to Third Parties (including governmental bodies) and SUBCONTRACTOR warrants to fully meet all its obligations under the law in respect of subcontracting (including responsibilities for proper payment of social premiums and the like of its Subcontractors, sub-sub-Subcontractors etc.). SUBCONTRACTOR shall fully indemnify Company from any and all claims, howsoever based or arising and without any limitation, by any Subcontractor or other third party.

17. Publicity

SUBCONTRACTOR agrees to make no news releases nor to issue any advertising pertaining to the SERVICES or this SUBCONTRACT without prior written approval of Company.

18. Laws and Regulations

SUBCONTRACTOR shall comply with all local, municipal, state, federal and governmental laws, orders, codes and regulations applicable to SUBCONTRACTOR's SERVICES in the performance of this SUBCONTRACT and SUBCONTRACTOR agrees to indemnify and hold harmless Company and OWNER from and against any and all liabilities, liens, claims, costs, expenses, losses, damages, penalties and judgments arising from or based on any actual or asserted violation of aforesaid laws, codes, rules, regulations and directives. SUBCONTRACTOR shall not apply to or enter into negotiations with any governmental authority or agency in the performance of SERVICES under this SUBCONTRACT, without Company's prior written approval.

19. Inspection and Access

Company shall at all times have access to the SUBCONTRACTOR's Work product developed under this SUBCONTRACT wherever in preparation, and SUBCONTRACTOR shall facilitate such access and inspection thereof. Inspection or lack of inspection by Company shall not be deemed to be a waiver of any of its rights under SUBCONTRACTOR's guarantees or of its right to subsequently reject defective SERVICES.

20. Arbitration

Any dispute between the parties, whether resulting from a claim under this SUBCONTRACT, tort or at law or from any other claim or controversy, which may arise in connection with the activities contemplated in the SUBCONTRACT or the application, implementation, validity, breach or termination of the SUBCONTRACT or any provision thereof, shall be exclusively submitted to the Netherlands Arbitration Institute in the Hague, The Netherlands.

21. Applicable Law

The validity, application, interpretation and implementation of the SUBCONTRACT and any dispute referred to in Article 20.0 , shall be exclusively governed by and interpreted in accordance with the substantive laws of the Netherlands.

22. Survival

The provisions of this Contract which by their nature are intended to survive the termination, cancellation, completion or expiration of this Contract shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration.

23. Language

SUBCONTRACTOR hereby represents that it has sufficient knowledge of the English language to fully understand this SUBCONTRACT, its conditions and attachments, and that all future documents, drawings, specifications, correspondence and other documents will be written in the English language.

24. Waiver of Liens

To the full extent provided by applicable law, SUBCONTRACTOR waives its right to file any liens on any property, shares, accounts or other assets of Company

25. Audit Rights

25.1 SUBCONTRACTOR shall keep and cause its subcontractors to keep, in accordance with generally accepted accounting practices, books, records and accounts pertaining to performance of the WORK, including SUBCONTRACTOR’s and subcontractor’s 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. SUBCONTRACTOR shall preserve, and shall cause its subcontractors to preserve said documents during the performance of the WORK and for a period of three (3) years after ACCEPTANCE.

25.2 SUBCONTRACTOR shall permit and cause its 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 OWNER to interview SUBCONTRACTOR’s and subcontractor’s personnel, review SUBCONTRACTOR’s and subcontractor’s accounting and cost control systems and inspect books, records, accounts and other documents set forth in 25.1 and make copies thereof, as necessary to audit and verify the completeness and accuracy of reimbursable costs contained in invoices submitted by SUBCONTRACTOR, or for any reasonable purpose.

25.3 If an audit indicates errors in SUBCONTRACTOR’s invoices SUBCONTRACTOR shall make appropriate invoice adjustments or promptly refund overpayments.

25.4 As applicable SUBCONTRACTOR shall include the above audit rights in all subcontracts.

26. Intellectual Property Rights

All materials, documents or other items, whether physical or unphysical, developed or generated by SUBCONTRACTOR rendering SERVICES hereunder, including without limitation drawings, specifications, requisitions, calculations, inventions, copyrightable work, shall become the sole and exclusive property and intellectual property of Company without any limitation without any further legal act or deed being necessary, and without any additional obligation resting on Company. All such materials, documents or items shall be delivered to Company at the termination, completion or suspension of the SERVICES. SUBCONTRACTOR agrees to execute all documents and take all steps that Company deems necessary or desirable to protect or establish where appropriate Company’s ownership and intellectual property rights thereof. Company shall, in any event, have the unrestricted right to use such materials, documents or items for any purpose whatsoever, without any obligation of any kind to SUBCONTRACTOR or to any third party.
SUBCONTRACTOR shall hold Company and/or OWNER harmless from and indemnify Company and/or OWNER against all loss, damage and expense arising from any claim for infringement of an ownership right, intellectual property right, including a patent in existence or to be granted on an application published prior to the date of Acceptance of the Work or the date of termination of the SUBCONTRACT, whichever is the earlier, with respect to or arising out of:

the Services
the use in the Project or any part thereof of any process or part thereof chosen by SUBCONTRACTOR other than at Company’s specific request;
the use of the drawings, specifications, requisitions, calculations and other documents referred to in Article 26 and prepared for Company under the SUBCONTRACT, except for such claims as may arise out of:

the use of the Technical Information in the performance of the Work, and/or
the use of such processes and the use or incorporation of such items of equipment in the Project as applied at Company’s specific request, and/or
the use referred to in Article 26 of the drawings, specifications, requisitions, calculations and other documents prepared or caused to be prepared by SUBCONTRACTOR under the SUBCONTRACT.

Company shall inform SUBCONTRACTOR as soon as reasonably practicable if and when a claim is lodged with Company for infringement of an ownership right, intellectual property right, including a patent.
Similarly Company and/or OWNER shall hold harmless and indemnify SUBCONTACTOR and its affiliates from and against any loss, damage and expense arising from any claim for infringement of a patent or other industrial property right with respect to or arising out of the Technical Information.