Common use of PERFORMANCE ACCEPTANCE CRITERIA Clause in Contracts

PERFORMANCE ACCEPTANCE CRITERIA. 10.1 Performance testing of the Equipment shall be carried out in accordance with the testing procedures set forth in the relevant annex to the Quotation, if any. The Parties shall co- operate fully with one another to this end and, as soon as the Seller believes that the Equipment is ready for the final performance test it shall provide the Buyer with five (5) working days written notice thereof, unless otherwise agreed upon in writing by the parties, it being understood that, in such former case the final performance test shall begin in the morning of the sixth (6th) working day from such notice and, unless otherwise agreed upon in writing, shall continue without interruption until completion. 10.2 The Buyer shall be responsible for providing suitable foundations, buildings, lifting gear, skilled and other labor, water, power and effluent connections, raw materials and all other material, labor, services and facilities as specified by Seller, which are reasonably necessary to permit the Seller’s engineer(s) to perform said performance testing. 10.3 If the test reveals that the Equipment does not comply with the Performance Criteria, the Seller will promptly begin to correct any such non-compliance at the Seller’s expense and again notify the Buyer as indicated in section 10.1 above; testing will take place again and the Acceptance Document will be signed and delivered to the Seller in accordance with the provisions of this Article 10. 10.4 If there is disagreement between the parties as to whether or not the Equipment meets the Performance Criteria and/or is in compliance with the Agreement, then the existence and extent of the alleged failure of the Equipment to meet the Performance Criteria will be evaluated at the written request of either party by a board of three (3) persons. Said board shall be composed of one (1) person nominated by the Seller (for example, the Seller’s Project Manager), one (1) person nominated by the Buyer (for example, the Buyer’s Project Manager) and a third party expert to be agreed upon by the first two; if the third party expert has not been agreed upon within fifteen (15) days following written notice by one of the parties to the other (whether or not both parties have appointed their respective person), he/she shall be appointed in accordance with the Rules for Expertise of the International Chamber of Commerce. It is understood that all members of the board, however appointed, shall act at all times in compliance with said Rules. Based on the boards’ evaluation, the third party expert, however appointed, shall make findings in a written expert’s report prepared and signed by the third party expert only, all in compliance with said Rules. If the third party expert’s report finds that the Equipment fails to meet the Performance Criteria then the Seller shall take reasonable steps as may be advised by the expert to cause the Performance Criteria to be met as soon as reasonably possible under the circumstances and again notify the Buyer in compliance with section 10.1 above. 10.5 If the Equipment meets the Performance Criteria during the final performance test (whether or not the Buyer participates in such test), then the Seller will be provided by the Buyer or by the third party expert appointed pursuant to section 10.4, with written acceptance of the Equipment substantially in the form of the acceptance certificate attached to the Quotation (the “Acceptance Document”). 10.6 If the Performance Criteria cannot be reached, for reasons not directly attributable to Seller, within 4 (four) months from the date of Ex Works delivery of the Equipment, the Performance Criteria shall be deemed to have been met in any case and the Equipment shall be deemed to have been accepted by the Buyer.

PERFORMANCE ACCEPTANCE CRITERIA. 10.1 Performance testing of the Equipment shall be carried out in accordance with the testing procedures set forth in the relevant annex to the Quotation, if any. The Parties shall co- operate fully with one another to this end and, as soon as the Seller believes that the Equipment is ready for the final performance test it shall provide the Buyer with five (5) working days written notice thereof, unless otherwise agreed upon in writing by the parties, it being understood that, in such former case the final performance test shall begin in the morning of the sixth (6th) working day from such notice and, unless otherwise agreed upon in writing, shall continue without interruption until completion. 10.2 The Buyer shall be responsible for providing suitable foundations, buildings, lifting gear, skilled and other labor, water, power and effluent connections, raw materials and all other material, labor, services and facilities as specified by Seller, Seller ,which are reasonably necessary to permit the Seller’s engineer(s) to perform said performance testing. 10.3 If the test reveals that the Equipment does not comply with the Performance Criteria, the Seller will promptly begin to correct any such non-compliance at the Seller’s expense and again notify the Buyer as indicated in section 10.1 above; testing will take place again and the Acceptance Document will be signed and delivered to the Seller in accordance with the provisions of this Article 10. 10.4 If there is disagreement between the parties as to whether or not the Equipment meets the Performance Criteria and/or is in compliance with the Agreement, then the existence and extent of the alleged failure of the Equipment to meet the Performance Criteria will be evaluated at the written request of either party by a board of three (3) persons. Said board shall be composed of one (1) person nominated by the Seller (for example, the Seller’s Project Manager), one (1) person nominated by the Buyer (for example, the Buyer’s Project Manager) and a third party expert to be agreed upon by the first two; if the third party expert has not been agreed upon within fifteen (15) days following written notice by one of the parties to the other (whether or not both parties have appointed their respective person), he/she shall be appointed in accordance with the Rules for Expertise of the International Chamber of Commerce. It is understood that all members of the board, however appointed, shall act at all times in compliance with said Rules. Based on the boards’ evaluation, the third party expert, however appointed, shall make findings in a written expert’s report prepared and signed by the third party expert only, all in compliance with said Rules. If the third party expert’s report finds that the Equipment fails to meet the Performance Criteria then the Seller shall take reasonable steps as may be advised by the expert to cause the Performance Criteria to be met as soon as reasonably possible under the circumstances and again notify the Buyer in compliance with section 10.1 above. 10.5 If the Equipment meets the Performance Criteria during the final performance test (whether or not the Buyer participates in such test), then the Seller will be provided by the Buyer or by the third party expert appointed pursuant to section 10.4, with written acceptance of the Equipment substantially in the form of the acceptance certificate attached to the Quotation (the “Acceptance Document”). 10.6 If the Performance Criteria cannot be reached, for reasons not directly attributable to Seller, within 4 (four) months from the date of Ex Works delivery of the Equipment, the Performance Criteria shall be deemed to have been met in any case and the Equipment shall be deemed to have been accepted by the Buyer.