Terms of Delivery
Custers works according to the international terms of delivery as set up by Orgalime.
Download here the Custers terms of delivery.
SUPPLY AND INSTALLATION OF MECHANICAL, ELECTRICAL AND ELECTRONIC PRODUCTS
Brussels, January 2014
1. These General Conditions shall apply when the parties agree In Writing or otherwise thereto. Any modifications of or deviations from them must be agreed In Writing.
2. In these General Conditions the following terms shall have the meanings hereunder assigned to them:
- "Contract": the agreement In Writing between the parties concerning delivery and performance of the Works and all appendices, including agreed amendments and additions In Writing to the said documents;
-"Contract Price": the payment to be made for the Works. lf installation is to be carried out on a time basis and has notbeen completed, the Contract Price for the purposes of Clauses 21, 43,
44 and 51 shall be the price for the Plant with the addition of 10
per cent or of any other percentage that may have been agreed by the parties;
- "Gross Negligence": an actor omission implying either a failure to pay due regard to serious consequences, which a conscientious contracting party would normally foresee as likely to ensue, or a deliberate disregard of the consequences of such an act or omission;
- "In Writing": communication by document signed by both parties or by letter, fax, electronic mail and by such other means as are agreed by the parties;
- "Plant": the machinery, apparatus, materials, articles, documentation, software and other products to be supplied by the Contractor under the Contract;
- "Site": the place where the Plant is to be installed, including as much of the surrounding area as is necessary for unloading, starage and internal transport of the Plant and installation equipment;
- "Works": the Plant, installation of the Plantand any other work to be carried out by the Contractor under the Contract. lf the Works shall according to the Contract be taken over by separate sections intended to be used independently frorn each other, these Conditions shall apply toeach section separately. The term "Works" shall then refer to the section in question.
3. All information and data contained in general product documentation and price lists shall be binding only to the extent that they are by reference In Writing expressly included in the Contract.
DRAWINGS AND TECHNICAL INFORMATION
4. All drawings and technica! documents relating to the Works submitted by one party to the other, prior or subsequent to the formation of the Contract, shall remain the property of the submitting party.
Drawings,technica! documents or othertechnical information received by one party shall not, without the consent of the other party, be used for any other purpose than that tor which they were provided. They may not, without the consent of the submitting party, otherwise be used or copied, reproduced, transmitted or communicated to a third party.
5. The Contractor shall, not later than at the date of taking- over, provide free of charge information and drawings which are necessary to permit the Purchaser to commission, operate and maintain the Works. Such information and drawings shall be supplied in the number of copies agreed upon or at least one copy of each. The Contractor shall not be obliged to provide manufacturing drawings for the Plant or tor spare parts.
TESTS BEFORE SHIPMENT
6. Tests before shipment of the Plant provided for in the Contract shall, unless otherwise agreed, be carried out at the place of manufacture during normal working hours.
lf the Contract does notspecity the technica! requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in the country of manufacture.
7. The Contractorshall notify the Purchaser In Writing of these tests in sufficient time to permit the Purchaser to be represented at the tests. lf the Purchaser is not represented, the test report shall be sent to the Purchaser and shall be accepted as accurate.
8. lf the tests show the Plant not to be in accordance with the Contract, the Contractor shall without delay remedy any deficiencies in order to ensure that the Plant camplies with the Contract. New tests shall then be carried out at the Purchaser's request, unless the deficiency was insignificant.
9. The Contractorshall bear all costs for tests before shipment of the Plant. The Purchaser shall however bear all travelling and living expenses for his representatives in conneetion with such tests.
PREPARATORY WORK AND WORKING CONDITIONS
10. The Contractor shall in good time provide drawings showing the manner in which the Plant is to be installed, tagether with all information required tor preparing suitable foundations, for providing access for the Plant and any necessary equipment to the Site and for making all necessary connections to the Works.
f) he has made available to the Contractor free of charge necessary starage facilities, providing proteetion against theft and deterioration of the Plant, the tools and equipment required for installation and the personal effects of the Contraetar's personnel;
g) the access routes to the Site are suitable for the required transport of the Plant and the Contraetar's equipment.
11. The Purchaser shall in good time undertake preparatory
12. The preparatory work referred to in Clause 11 shall be carried out by the Purchaser in accordance with the drawings and intermation provided by the Contractor under Clause 10. In any case the Purchaser shall ensure that the foundations are structurally sound. lf the Purchaser is responsible for transporting the Plant to the Site, heshall ensure that the Plant is on the Site before the agreed date tor starting the installation work.
13. lf an error or omission in the drawings or information referred shall make available to the Contractor, tree of charge, such Iabour and operators as may be specified in the Contract or as may reasonably be required tor the purpose of the Contract. The persons made available by the Purchaser under this clause shall provide their own tools. The Contractorshall not be liable tor such Iabour provided by the Purchaser or tor any acts or omissions of the persons concerned.
14.The Purchaser shall ensure that:
a) the Contraetar's persennel are able to start work in charge.
accordance with the agreed time schedule and to work during normal working hours. Provided that the Purchaser has been given notice In Writing in reasanabie time, work may be performed outside normal working hours to the extent deemed necessary by the Contractor;
b) he has, in good time befare installation is started, informed the Contractor In Writing of all relevant safety regulations in force at the Site. lnstallation shall not be carried out in unhealthy or dangerous surroundings. All the necessary safety and precautionary measures shall have been taken before installation is started and shall be maintained;
c) the Contraetar's persennel are able to obtain suitable and convenient board and lodging in the neighbourhood of the Site and have access to internationally acceptable hygiene facilities and medica! services;
d) he has made available to the Contractor free of charge at the proper time on the Site all necessary cranes, lifting equipment and equipment fortransport on the Site, auxiliary tools, machinery, materials and supplies (including fuel, oils, grease and other materials, gas, water. electricity, steam, compressed air. heating, lighting, etc.), as well as the measuring and testing instruments of the Purchaser available on the Site. The Contractor shall specity In Writing his requirements concerning such cranes, lifting equipment, measuring and testing instruments and equipment for transport on the Site at the latest one month before the agreed date tor starting the installation work;
e) he has made available to the Contractor tree of charge sufficient offices on the Site. equipped with telephone and access to the Internet
15. Upon the Contraetar's request in good time, the Purchaser work to ensure that the conditions necessary tor installation of the Plant and for the correct operatien of the Works are fulfilled. This shall not apply to preparatory work which according to the Contract shall be pertormed by the Contractor.
16. lf the Contractor so requires, the Purchaser shall give all necessary assistance required for the import and re-export of the Contraetar's equipment and tools, including assistance with customs fonnalities. The assistance as such shall be provided tree of charge.to in Clause 10 is discovered by the Contractor or notified to him
17. The Purchaser shall give all necessary assistance to In Writing before expiry of the period referred to in Clause 59. the costs of any necessary remedial work shall be borne by the Contractor. ensure that the Contraetar's pers onnel obtain, in good time, visas and any official entry, exit or work permits and (if necessary) tax certificates required in the Purchaser's country, as welI as access to the Site. The assistance as such shall be provided free of
18. The parties shall, no later than when the Contractor gives notice that the Plant is ready for dispatch from the place of manufacture, each appoint a representative In Writing to act on their behalt during the work on the Site.
The representatives shall be present on or near the Site during working hours. Unless otherwise specified in the Contract. the representatives shall be authorised to act on behalf of their respective party in all matters concerning the installation work. Wherever these General Conditions stipulate that a notice shall be given In Writing, the representative shall always be authorised to receive such notice on behalf of the party he represents.
19. lf the Purchaser anticipates that he will be unable to fulfil in time his obligations necessary for carrying out installation, including complying with the conditions specified in Clauses 11, 12 and 14-17. heshall forthwith notify the Contractor In Writing. stating the reason and, it possible. the time when he will be able to carry out his obligations.
20. Without prejudice to the Contraetar's rights under Clause 2i, if the Purchaser fails to fulfil, correctly and in time, his obligations necessary tor carrying out installation, including to comply with the conditions specified in Claus es 1i. 12 and 14-i7, the following shall apply:
a) The Contractor may at his own diseretien choose to carry out or employ a third party to carry out the Purchaser's obligations or otherwise take such measures as are appropriate under the circumstances in order to avoid or alleviate the effects of the Purchaser's default.
b) The Contractor may suspend in whole or in part his
performance of the Contract. Heshall forthwith notify the Purchaser
In Writing of such suspension.
c) lf the Plant has not yet been delivered to the Site. the Contractorshall arrange tor storage of the Plant at the Purchaser's risk. The Contractorshall also. if the Purchaser so requires, insure the Plant.
d) The Purchaser shall pay any part of the Contract Price which. but for the default would have become due.
e) The Purchaser shall reimburse the Contractor for any costs not covered by Clause 47 or 48, which are reasonably incurred by the Contractor as aresult of measures under a). b) or c) of this Clause.
21. lf taking-over is prevented by the Purchaser's default as referred to in Clause 20 and this is not due to any such circumstance as mentioned in Clause 73, the Contractor may also by notice In Writing require the Purchaser to remedy his default within a final reasanabie period.
lf, for any reason which is not attributable to the Contractor, the Purchaser fails to remedy his default within such period, the Contractor may by notice In Writing tenninate the Contract in whole or in part. The Contractorshall then be entitled to compensation for the loss he suffers by reason of the Purchaser's default, including any consequential and indirect loss. The compensation shall not exceed that part of the Contract Price which is attributable to that part of the Works in respect of which the Contract is terminated.
LOCAL LAWS AND REGULATIONS
22. The Contractor shall ensure that the Works are carried out and are in accordance with any laws, regulations and rules which are applicable to the Works. lf required by the Contractor, the Purchaser shall provide the relevant information on these laws. regulations and rules In Writing.
23. The Contractorshall carry out any variation work necessary to comply with changes in laws, regulations and rules. referred to in Clause 22, or in their generally accepted interpretation, occurring between the date of submission of the tender and taking-over. The Purchaser shall bear the extra costs and other consequences resulting trom such changes. including variation work.
24. lf the parties are unable to agree on the extra costs and other consequences of changes in laws, regulations and rules. referred to in Clause 22, the Contractor shall be compensated for any variation workon a time basis.
25. Subject to the provisions of Clause 29, the Purchaser is entitled to request variations to the scope, design and construction of the Works until the Works have been taken over. The Contractor may suggest such variations In Writing.
26. Requests forvariations shall be submitted to the Contractor
In Writing and shall contain an exact description of the variation.
27. As soon as possible after receipt of a requestfora variatien ar after having himself made a proposal fora variation, the Contractor
shall notify the Purchaser In Writing whether and how the variation
can be carried out, stating the resulting alteration to the Contract
Price. the time for taking-over and other terms of the Contract.
The Contractorshall also give such notice to the Purchaser when variations are required as a result of changes in laws, regulations and rules referred to in Clause 22.
28. lf taking-over is delayed as aresult of disagreement between the parties on the consequences of variations, the Purchaser shall pay any part of the Contract Price which would have become due if taking-over had not been delayed.
29. Save as provided in Clause 23, the Contractor shall not be obliged to carry out variations requested by the Purchaser until the parties have agreed on how the variations wilI affect the Contract Price, the time for taking-over and other terms of the Contract.
PASSING OF RISK
30. The risk of loss of or damage to the Plant shall pass to the Purchaser in accordance with any agreed trade term, which shall be construed in accordance with the INCOTERMS") in force at the date of formation of the Contract. lf no trade term has been specifically agreed, delivery of the Plant shall be Free Carrier (FCA) at the place named by the Contractor.
Any risk of loss of or damage to the Works not covered by the first paragraph of this Clause shall pass to the Purchaser on taking-over of the Works.
Any lossof or damage to the Plant and Works after the risk has passed to the Purchaser shall be at the risk of the Purchaser, unless such lossar damage results trom the Contraetar's negligence.
31. When installation has been completed taking-over tests shall. unless otherwise agreed, be carried out to determine whether the Works are as required for taking-over according to the Contract.
The Contractor shall notify the Purchaser In Writing that the Works are ready for taking-over. He shall in this notice give a date for taking-over tests. giving the Purchaser sufficient time to prepare for and be represented at these tests.
The Purchaser shall bear all costs of taking-over tests. The Contractor shall however bear all costs relating to his personnel and his other representatives.
32. The Purchaser shall provide free of charge any power, lubricants, water, fuel, raw materials and other materials required tor the taking-over tests and for final adjustments in preparing for these tests. He shall also instalI free of charge any equipment and provide any Iabour or other assistance necessary tor carrying out the taking-over tests.
33. lf, after having been notified in accordance with Clause 31, the Purchaser fails to fulfil his obligations under Clause 32 or otherwise prevents the taking-over tests from being carried out, the tests shall be regarded as having been satisfactorily completed at the starting date for taking-over tests stated in the Contraetar's notice.
The taking-over tests shall be carried out during normal
working hours. lf the Contract does not specity the technica! requirements. the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in the Purchaser's country.
35. The Contractor shall prepare a report of the taking-over tests. This report shall be sent to the Purchaser. lf the Purchaser has not been represented at the taking-over tests after having been notified in accordance with Clause 31, the test report shall be accepted as accurate.
36. lf the taking-over tests show the Works not to be in accordance with the Contract, the Contractor shall without delay remedy the deficiencies. lf the Purchaser so requires In Writing without delay, new tests shall be carried out in accordance with Clauses 31-35. This shall not apply when the deficiency was insignificant.
37. Taking-over of the Works shall be considered to take piace:
a) when the taking-over tests have been satisfactorily cornpleted or are regarded under Clause 33 as having been satisfactorily cornpleted, or
b) where the parties have agreed not to carry out taking aver tests, when the Purchaser has received a Contraetar's notice In Writing that the Works have been cornpleted, provided that the Works are as required tor taking-over according to the Contract.
Minor deficiencies which do not affect the efficiency of the
Works shall not prevent taking-over.
The Contraetar's obligation to install the Plant at the Site is fulfilled when the Works are taken over pursuant to this Clause
37, notwithstanding his obligation to rernedy any remaining minor
38. The Purchaser is not entitled to use the Works or any part thereof before taking-over. lf the Purchaser does so without the Contraetar's consent In Writing, the Works shall be deerned to have been taken over. The Contractor is then relieved of his duty to carry out taking-over tests.
39. As soon as the Works have been taken over in accordance with Clause 37 or 38, the period referred to in Clause 59 shall start to run. The Purchaser shall, at the Contraetar's request In Writing, issue a certificate stating when the Works have been taken over.
The Purchaser's failure to issue a certificate shall notaffect taking
40. lf the parties, insteadof specifying the date for taking-over, have specified a period of time within which taking-over shall take place, such period shall start to run as soon as the Contract is entered into and all agreed preconditions to be fulfilled by the Purchaser have been satisfied, such as official forrnalities. payrnents due at the formation of the Contract and securities.
41. lf the Contractor anticipates that he will not be able to fulfil his obligations for taking-over before or at the time for taking-over,
he shall forthwith notify the Purchaser thereof In Writing, stating
the reason and, if possible. the time when taking-over can be expected.
lf the Contractor fails to give such notice, the Purchaser shall be entitled to cornpensation for any additional costs which he incurs and which he could have avoided had he received such notice.
42. The Contractorshall be entitled to an extension of the time
tor taking-over if delay occurs:
a) because of any of the circurnstances referred to in
Clause 73. or
b) as aresult of variation workunder Clause 23, or c) as aresult of variations under Clauses 25-29, or
d) as aresult of suspension under Clauses 20. 51 or 76, or e) by an actor ornission on the part of the Purchaser or any
other circurnstances attributable to the Purchaser.
The extension shall be as necessary having regard to all the relevant circurnstances. This provision applies regardless of whether the reason for the delay occurs before or after the agreed time for taking-over.
43. lf the Works are not cornpleted at the agreed time for taking-over, the Purchaser shall be entitled to liquidated damages trom the date on which taking-over should have taken place.
The liquidated damages shall be payable at a rate of 0.5 per cent of the Contract Price tor each cammeneed week of delay. The liquidated darnages shall not exceed 7.5 per cent of the Contract Price.
lf only part of the Works is delayed, the liquidated darnages shall be calculated on that part of the Contract Price which is attributable to such part of the Works as cannot in consequence of the delay be used as intended by the parties.
The liquidated darnages becorne due at the Purchaser's dernand In Writing, but not before taking-over has taken place or the Contract is terminated under Clause 44.
The Purchaser shall torfeit his right to liquidated darnages if he has not lodged a claim In Writing for such darnages within six
rnonths after the time when taking-over should have taken place.
44. lf the delay is such that the Purchaser is entitled to maximurn liquidated darnages under Clause 43 and if the Works are still not ready for taking-over. the Purchaser rnay In Writing dernand completion of the Works within a final reasanabie period aver according to Clauses 37 and 38.
which shall not be less than one week.
lf the Contractor does not complete the Works within such final period and this is not due to any circurnstance which is attributable to the Purchaser, then the Purchaser rnay by notice In Writing to the Contractor terrninate the Contract in respect of such part of the Works as cannot in consequence of the Contraetar's failure be used as intended by the parties.
lf the Purchaser terminatas the Contract he shall be entitled to compensation for the loss he suffers as a result of the Contraetar's delay, including any consequential and indirect loss. The total cornpensation, including the liquidated darnages which are payable under Clause 43, shall not exceed 15 per cent of that part of the Contract Price which is attributable to the part of the Works in respect of which the Contract is terminated.
The Purchaser shall also have the right to terminate the Contract by notice In Writing to the Contractor if it is clear trom the circumstances that there will occur a delay in taking-over of the Works which under Clause 43 would entitle the Purchaser to maximum liquidated damages. In case of terminatien for this reason, the Purchaser shall be entitled to maximum liquidated damages and compensation under the third paragraph of this Clause 44.
45. Liquidated damages under Clause 43 and terminatien of the Contract with limited compensation under Clause 44 shall be the only remedies available to the Purchaser in case of delay on the part of the Contractor. All other claims against the Contractor based on such delay shall be excluded, except where the Contractor has been guilty of Gross Negligence.
46. Unless othervvise agreed. payment shall be made within 30 days after the date of the invoice as follows:
a) when installation is carried out on a time basis:
one third of the agreed price tor the Plant at the formation of the Contract,
one third when the Contractor notities the Purchaser that the Plant or the essential part of it is ready for dispatch trom the place of manufacture and
the final third on arrival of the Plant at the Site.
Payment for installation shall be made against monthly invoices.
b) when installation is included in the lump sum Contract
30 per cent of the Contract Price at the formation of the Contract,
30 per cent when the Contractor notities the Purchaser that the Plant or the essential part of it is ready for dispatch trom the place of manufacture.
30 per cent on arrival of the Plant at the Site. the remaining part of the Contract Price on
47. When installation is carried out on a time basis the following items shall be separately charged:
a) all travelling expenses incurred by the Contractor in respect of his personnel and the transport of their equipment and personal effects (within reasanabie limits) in accordance with the specified method and class of travel where these are specified in the Contract;
b) cost of board and lodging and other living expenses. including any appropriate allowances of the Contraetar's personnel tor each day's absence trom their homes, including non-working days and holidays. The daily allowances shall be payable even during incapacity caused by sickness or accident:
c) the time worked, which shall be calculated by reference to the number of hours certified as worked in the time-sheets signed by the Purchaser. Overtime and workon Sundays, holidays and at night shall be chargedat special rates. The rates shall be as agreed in the Contract or, failing agreement, as nonnally charged by the Contractor. Save as othervvise provided, the hourly rates cover the normal wear and tear of the Contraetar's tools and light equipment;
d) time necessarily spent on:
preparatien and tormalities incidental to
the outward and homeward journeys of the
the outward and homeward journeys and other journeys to which the pers onnel are entitled in accordance with current law, regulations or collective agreements in the Contraetar's country,
daily travel of the Contraetar's personnel between lodgings and the Site, if it exceeds half an hour each way and there are no suitable lodgings closer to the Site,
waiting when work is prevented by circumstances which are not attributable to the Contractor;
e) any expenses incurred by the Contractor in accordance with the Contract in conneetion with the provision of equipment by him. including where appropriate a charge tor the use of the Contraetar's own heavy equipment;
f) any taxes or dues levied on the invoice and payable by the Contractor in the country where installation takes place;
g) any costs which could not reasonably be foreseen by the Contractor and are caused by a circumstance which is not attributable to the Contractor;
h) any extra costs resulting from the applicability of mandatory rules of the Purchaser's country in the social field;
i) any costs, expenses and time spent resulting trom extra work which is not attributable to the Contractor.
lf these costs are time-related, they shall be charged at the rates referred to in this Clause 47 under c.
48. When installation is to be carried outfora lump sum, the Contract Price shall be deemed to inelude all the items mentioned in Clause 47, a) through e). Any items mentioned in Clause 47. f) through i), shall be deemed to be excluded trom the Contract Price and shall therefore be charged separately. lf these costs are time-related, they shall be charged at the rates referred to in Clause 47 under c).
49. lf installation is delayed due toa eause which is attributable to the Purchaser, the Purchaser shall compensate the Contractor tor any resulting additional costs, including but not limited to:
a) waiting time and time spent on extra journeys;
b) costs and extra work resulting trom the delay, including removing, securing and setting up installation equipment;
c) additional costs, including costs as a result of the Contractor having to keep his equipment at the Site tor a longer time than expected;
d) additional costs for journeys and board and lodging for the Contraetar's personnel;
e) additional financing costs and costs of insurance;
f) other documented costs incurred by the Contractor as a result of changes in the installation programme.
lf these costs are time-related, they shall be charged at the rates referred to in Clause 47 under c).
50. Whatever the means of payment used. payment shall not be deemed to have been effected before the Contraetar's account has been irrevocably credited for the amount due.
51. lf the Purchaser fails to pay by a stipulated date, the Contractor shall be entitled to interest from the day on which payment was due and to compensation for recovery costs. The rate of interestshall be as agreed between the parties or otherwise
8 percentage points above the rate of the main refinancing facility of the European Central Bank. The compensation for recovery costs shall be 1 per cent of the amount tor which interest for late payment becomes due.
In case of late payment and in case the Purchaser fails to give an agreed security by the stipulated date the Contractor may, after having notified the Purchaser In Writing, suspend his performance of the Contract until he receives payment or, where appropriate, until the Purchaser gives the agreed securitythe stipulated date the Contractor may, after having notified the Purchaser In Writing, suspend his performance of the Contract until he receives payment or, where appropriate, until the Purchaser gives the agreed security.
lf the Purchaser has not paid the amount due within three
RETENTION OF TITLE
52. The Plant shall remain the property of the Contractor until paid for in full, including payment tor installation of the Plant, to the extent that such retention of title is valid under the relevant law.
The Purchaser shall at the request of the Contractor assist him in taking any measures necessary to proteet the Contraetar's title to the Plant.
The retention of title shall not affect the passing of risk under Clause 30.
LIABILITY FOR DAMATlE TO PROPERTY BEFORE TAKING-OVER
53. The Contractorshall be liable for any damage to the Works which occurs before the risk has passed to the Purchaser. This applies irrespective of the eause of the damage, unless the damage has been caused by the Purchaser or anyone for whom he is responsibie in conneetion with performance of the Contract. lf the Contractor is not liable for the damage to the Works in accordance with this Clause, the Purchaser may still require the Contractor to remedy the damage, be it at the Purchaser's cost.
54. The Contractorshall be liable for damage to the Purchaser's property occurring before taking-over of the Works only if it is proved that such damage was caused by negligence on the part of the Contractor or anyone for whom he is responsible in conneetion with the performance of the Contract. The Contractor shall however under no circumstances be liable tor loss of production, loss of profit or any other consequential or indirect loss. part under the same terms and conditions as those applicable to the original Works fora period of one year. For the remaining parts of the Works the period mentioned in Clause 59 shall be extended only by a period equal to the period during which and to the extent that the Works could not be used as a result of the defect.
LIABILITY FOR DEFECTS
55. Pursuant to the provisions of Clauses 56-71, the Contractor shall remedy any defect or nonconformity (hereinafter termed defect(s)) in the Works resulting from faulty design, materials or workmanship.
56. The Contractor shall not be liable for defects arising out of materials provided or a design stipulated or specified by the Purchaser.
57. The Contractorshall only be liable for defects which appear under the conditions of operation provided for in the Contract and under proper use of the Works.
58. The Contractor shall not be liable for defects caused by circumstances which arise afterthe risk has passed to the Purchaser, e.g. defects due to faulty maintenance or faulty repair by the Purchaser or to alterations carried out without the Contraetar's consent In Writing. The Contractorshall neither be liable for normal wear and tear nor for deterioration.
59. The Contraetar's liability shall be limited to defects in the Works which appear within a period of one year from taking-over. lf the use of the Works exceeds that which is agreed, this period shall months, the Contractorshall be entitled to terminate the Contract be reduced proportionately. lf taking-over has been delayed for by notice In Writing to the Purchaser and, in addition to the interest reasons which are attributable to the Purchaser, the Contraetar's and compensation of recovery costs according to this Clause Si, liability for defects shall not. except as stated in Clause 60, be to claim compensation tor the loss he incurs. Such compensation extended beyond 18 months after delivery of the Plant. shall not exceed the Contract Price.
60. When a defect in a part of the Works has been remedied, the Contractorshall be liable for defectsin the repaired or replaced where applicable. The notice shall contain a description of the defect. lf the Purchaser fails to notify the Contractor In Writing of a defect within the time Iimits set forth in the first paragraph of this Clause, he shalllose his right to have the defect remedied. Where the defect is such that it may cause damage, the Purchaser shall immediately inform the Contractor In Writing. The Purchaser shall bear the risk of damage to the Works resulting trom his failure so to notify. The Purchaser shall take reasanabie measures to minimise damage and shall in that respect comply with instructions of the Contractor.
61. The Purchaser shall without undue delay notifythe Contractor In Writing of any defect which appears. Such notice shall under no circumstances be given later than two weeks after the expiry of the period given in Clause 59 or the extended period(s) under Clause
62. On receipt of the notice under Clause 61 the Contractor shall at his own cost remedy the defect without undue delay, as stipulated in Claus es 55-71. The time for remedial work shall be chosen in order not to interfere unnecessarily with the Purchaser's activities. Remedial work shall be carried out at the Site, unless the Contractor deerns it more appropriate, having regard to the Contractor deerns it more appropriate, having regard to the interestsof both parties, that the detective partor the Plant is sent to him or a destination specified by him. Where remedial workis carried out at the Site. Clauses 14-17 and 54 shall apply correspondingly. lf the defect can be remedied by replacement or repair of a detective part and if dismantling and re-installation of the part do not require special knowledge, the Contractor may demand that the detective part is sent to him or a destination specified by him. In such case the Contractor shall have fulfilled his obligations in respect of the defect when he delivers a duly repaired part or a part in replacement to the Purchaser.
63. The Purchaser shall at his own expense provide access to the Works and arrange for any intervention in equipment other than the Works, to the extent that this is necessary to remedy the defect.
64. Unless otherwise agreed, necessary transport of the Plant or parts thereof to and from the Contractor in conneetion with the remedying of defects for which the Contractor is liable shall be at the risk and expense of the Contractor. The Purchaser shall follow the Contraetar's instructions regarding such transport.
65. Unless otherwise agreed, the Purchaser shall bear any additional costs which the Contractor incurs for remedying the defect caused by the Works being located in a place other than the Site.
66. Detective parts which have been replaced shall be made available to the Contractor and shall be his property.
67. lf the Purchaser has given such notice as mentioned in Clause 61 and no defect is found for which the Contractor is liable, the Contractor shall be entitled to compensation tor the costs he incurs as aresult of the notice.
68. lf the Contractor does not fulfil his obligations under Clause
62, the Purchaser may by notice In Writing fix a final reasanabie period tor tulfilment of the Contraetar's obligations, which shall not be less than one week.
lf the Contractor fails to fulfil his obligations within such final period, the Purchaser may himself undertake or employ a third party to undertake necessary repair workat the risk and expense of the Contractor.
Where successful repair work has been undertaken by the Purchaser or a third party, reimbursement by the Contractor of reasanabie costs incurred by the Purchaser shall be in full settiement of the Contraetar's liabilities tor the said defect.
69. Where the defect has not been successfully remedied, as stipulated under Clause 68:
a) the Purchaser shall be entitled to a reduction of the Contract Price in proportion to the reduced value of the Works. provided that under no circumstances shall such reduction exceed 15 per cent of the Contract Priceor, where the defect
is so substantial as to significantly deprive the Purchaser of the benefit of the Contract as regards the Works or a substantial part of it.
b) the Purchaser may terminate the Contract by notice In Writing to the Contractor in respect of such part of the Works as cannot in consequence of the defect be used as intended by the parties. The Purchaser shall then be entitled to compensation for his loss, costs and damages up to a maximum of 15 per cent of that part of the Contract Price which is attributable to the part of the Works in respect of which the Contract is tenninated.
70. Notwithstanding the provisions of Clauses 55-69 the Contractor shall not be liable tor defects in any part of the Works tor more than one year trom the end of the liability period referred to in Clause 59 or trom the end of any other liability period agreed upon by the parties.
71. Save as stipulated in Clauses 55-70, the Contractorshall not be liable for defects. This applies to any loss the defect may cause, including lossof production, loss of profit and other indirect loss. This limitation of the Contraetar's liability shall not apply if he has been guilty of Gross Negligence.
ALLOCATION OF LIABILITY FOR DAMAGE CAUSED BY THEWORKS
72. The Contractor shall not be liable for any damage to property caused by the Works atter taking-over and whilst the Works are in the possession of the Purchaser. Nor shall the Contractor be liable tor any damage to products manufactured by the Purchaser or to products of which the Purchaser's products forma part.
lf the Contractor incurs liability towards any third party tor such damage to property as described in the preceding paragraph, the Purchaser shall indemnify, defend and hold the Contractor harmless.
lf a claim for damage as described in this Clause is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof In Writing.
The Contractor and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Works. The liability between the Contractor and the Purchaser shall however be settled in accordance with Clause 78.
The limitation of the Contraetar's liability in the first paragraph of this Clause shall not apply where the Contractor has been guilty of Gross Negligence.
73. Either party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by Force Majeure. meaning any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties, such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power,
currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause.
A circumstance referred to in this Clause, whether occurring prior to or after the formation of the Contract, shall give a right to suspension only if its effect on the performance of the Contract could not be foreseen at the time of the formation of the Contract.
74. The party claiming to be affected by Force Majeure shall notify the other party In Writing without delay on the intervention and on the cessation of such circumstance. lf a party fails to give such notice, the other party shall be entitled to compensation for any additional casts which he incurs and which he could have avoided had he received such notice.
lf Force Majeure prevents the Purchaser from fulfilling his obligations, he shall compensate the Contractor for expenses incurred in securing and protecting the Works.
75. Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to terminale the Contract by notice In Writing to the other party if performance of the Contract is suspended under Clause 73 for more than six months.
76. Notwithstanding other provisions in these General Conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the Contract where it is clear from the circumstances that the other party is not going to perfarm his obligations. A party suspending his performance of the Contract shall forthwith notify the other party thereof In Writing.
77. Save as otherwise statedinthese General Conditions there shall be no liability on either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any other consequentialor indirect loss whatsoever.
DISPUTES AND APPLICABLE LAW
78. All disputes arising out of or in conneetion with the Contract shall be finally setlied under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
79. The Contract shall be governed by the substantive law of the Contraetar's country.
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