ENGINEERING, PROCUREMENT, CONSTRUCTION AND COMMISSIONING CONTRACT
Exhibit
10.4
ENGINEERING,
PROCUREMENT, CONSTRUCTION AND COMMISSIONING
CONTRACT
Mission
Biofuels Sdn Bhd
Continuous
Acid Conditioning and Silica Pretreatment, FFA pretreatment and Methyl Ester
Transesterification with biodiesel output of 750 tpd (250,000 tpa) and 98% pure
technical grade glycerin output of 82 tpd (27,308 tpa) along with associated
balance of plant at Kuantan Port, Malaysia
25
July, 2007
1
ARTICLES
OF AGREEMENT made the Twenty Fifth Day of July, 2007
BETWEEN:
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(1)
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Mission
Biofuels Sdn Bhd (Company No. 735218-A), a company established under the
laws of Malaysia whose principal place of business is at Xxxxx 00-0-0,
0xx
Xxxxx Xxxxx XXX Damansara 00 Xxxxx Xxxxxx 00000 Xxxxx Xxxxxx Xxxxxxxx
("the Purchaser" which expression shall include the Purchaser's legal
successors in title and permitted assigns);
and
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(2)
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KNM
Process Systems Sdn Bhd (Company Xx. Xx. Xx. 000000-X), a company
established under the laws of Malaysia whose principal place of business
is at Xx. 00, Xxxxx Xxxxxx XX0/0, Xxxxx Xxxxxx Besi Indah, 43300 Seri
Kembangan; ("the Contractor" which expression shall include the
Contractor's legal successors in
title).
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The
Purchaser and the Contractor shall each be referred to herein as "Party" or
collectively the "Parties".
WHEREAS
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(1)
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The
Purchaser wishes to obtain the design, engineering, procurement,
manufacture, supply, erection, construction, installation, completion,
testing and commissioning of a Continuous Acid Conditioning and Silica
Pretreatment, FFA pre-treatment and Methyl Ester Transesterification Plant
with biodiesel output of 750 tpd (250,000 tpa) and 98% pure technical
grade glycerine output of 82 tpd (27,308 tpa) with associated balance of
plant (the "Biodiesel Project") at Kuantan Port,
Malaysia.
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(2)
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The
Purchaser and the Contractor have discussed the sourcing and utilisation
of Esterfip-H technology and engineering design provided by Axens and IFP
for Methyl Ester Transesterification
Plant.
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(3)
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Axens
has provided a technical proposal dated June 2007 to the Purchaser and
Contractor and a commercial proposal dated December 2006 to the
Purchaser.
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(4)
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Whereas
the Contractor has satisfied itself to the suitability of Esterfip-H
technology for meeting the requirements of the Biodiesel Project and the
achievement of the Performance
Guarantees;
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(5)
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Whereas
the Purchaser and the Contractor have agreed to purchase the said
technology and engineering data from Axens pursuant to a Process Book
Supply Agreement ("PBSA") dated July 25, 2007 between Axens and
Contractor, a draft of which has been provided to the
Purchaser.
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(6)
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The
Purchaser has agreed to enter into a Technology Transfer Agreement ("TTA")
dated July 25, 2007 with Axens for transfer of technology and covering
terms and conditions of Axens liability for the deliverables of
Axens.
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(7)
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The
Purchaser shall assign, by way of a TTA Assignment Agreement ("TTAAA"),
the TTA to the Contractor for the period ending the Final Performance
Acceptance, whereupon the Assignment shall automatically end and revert to
the Purchaser.
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(8)
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The
Contractor has submitted a proposal dated June 12, 2007 for the design,
engineering, procurement, manufacture, supply, erection, construction,
installation, completion, testing and commissioning of the Biodiesel
Project and the remedying of defects therein all as comprised in the
documents listed at recitals (3) and this recital (8) hereof ("the
Contractor's Proposal") in the lump sum fixed price of Malaysian Ringgit
One Hundred and Twenty Two Million only (the "Contract Price") (which is
subject to such additions thereto or deductions therefrom as may be made
in accordance with the terms of this
Contract).
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2
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(9)
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The
Contractor is satisfied that the Contractor's Proposal fully complies with
and undertakes that the Contractor's Proposal shall fully comply with the
requirements of the Biodiesel Project and the achievement of the
Performance Guarantees.
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(10)
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The
Contractor has inspected and familiarised itself with the Site conditions
and satisfied itself as to the nature of the Site and all relevant
conditions affecting the Works.
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(11)
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The
Purchaser has obtained or shall provide support to the Contractor for
obtaining Contractor Consents and Other Construction Consents (as detailed
in the Conditions) for the Biodiesel
Project.
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NOW THIS
AGREEMENT WITNESSETH as follows:
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1.
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Capitalised
terms in these Articles of Agreement shall have the same meanings as are
respectively assigned to them in the
Conditions.
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2.
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(a)
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This
Contract and the obligations of the Parties shall come into force upon and
with effect from the Execution
Date.
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(b)
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The
Purchaser shall make a payment of Malaysian Ringgit 2,000,000 (Two Million
Only) to the Contractor on the Execution Date ("Deposit") as deposit and
part payment towards the Contract
Price.
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(c)
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The
Contractor shall at its owns costs procure and deliver to the Purchaser,
within 20 (twenty) days after the Execution Date, the Performance Bond,
the Advance Payment Guarantee and the Corporate Guarantees as a condition
precedent to the release of Advance Payment by the Purchaser to the
Contractor,
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(d)
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Within
30 (thirty) days after the Execution Date, the Purchaser shall make the
Advance Payment to the Contractor, provided always that the Contractor has
furnished to the Purchaser the documents as referred to in Article 2(c)
above.
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(e)
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Further
payments by the Purchaser shall be made by drawdown on the Purchaser's
Letter of Credit to be established by the Purchaser within ten (10)
business days of the date of making the Advance Payment. Such
Purchaser's Letter of Credit shall be in the form provided in Appendix
15.
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(f)
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The
Commencement Date shall be the date determined as
follows:
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(i)
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If
the Advance Payment is made within 20 (twenty) days of the Execution Date,
then the Commencement Date shall be the Execution
Date;
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(ii)
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If
the Advance Payment is made beyond 20 (twenty) days of the Execution Date,
because of non-provision of the documents referred to in Article 2(c)
above by the Contractor, then, the Commencement Date shall be the
Execution Date;
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(iii)
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Date
of making of Advance Payment
otherwise
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Provided
however, that if the Commencement Date does not occur within 2 (two) months from
the Execution Date for any reason whatsoever, the Parties shall renegotiate the
terms of the Contract in good faith for such alternative method or timeframe of
performance as may, in the circumstances, be fair and reasonable. If
the Parties are unable to agree on such terms within 30 (thirty) days
thereafter, then either Party may terminate this Contract by notice in writing
to the other and:
3
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(i)
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If
the Commencement Date has not occurred because the Contractor was unable
to or did not provide the documents listed in Article 2(c) above, then the
Contractor shall refund to the Purchaser within 5 (five) days from receipt
of the said notice all monies paid by the Purchaser to Contractor under
this Contract (including the Deposit and Advance Payment) (with interest
of 12% per annum thereon) and thereafter neither Party shall have any
claim or liability against the
other;
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(ii)
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If
the Commencement Date has not occurred for any other reason whatsoever,
then neither Party shall have any claim or liability against the
other.
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Upon the
payment of the Deposit by the Purchaser, the Contractor shall commence the
performance of the Works and shall then proceed with the Works with due
expedition and without delay provided however that, the Commencement Date has
occurred within 30 (thirty) days of Execution Date.
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3.
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The
following documents and their appendices / annexures which have been
initialled by the Parties and bound herewith shall be deemed to form and
be read and construed as part of this
Contract:
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(a)
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Articles
of Agreement;
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(b)
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Conditions
including the Appendices attached
thereto;
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(c)
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Contractor's
Proposal and Drawings;
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(d)
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Statement
of Needs.
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4.
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In
consideration of the Purchaser agreeing to pay the Contractor the Contract
Price in accordance with the Payment Schedule, the Contractor undertakes
to design, engineer, procure, manufacture, supply, erect, construct,
install, test, commission and complete the Works and achieve the Final
Performance Acceptance within the Time for Completion, to remedy defects
therein and to do all other acts and things mentioned in or reasonably to
be inferred from the Contract as forming a part of the Contractor's
obligations in conformity in all respects with the provisions of the
Contract.
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5.
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The
Purchaser shall pay to the Contractor in consideration of the performance
of the obligations referred to in Article 4, the Contract Price or such
other sum as may become payable under the provisions of the Contract at
the time and in the manner prescribed by the Contract. The
Contract Price is the sum of the following three
parts:
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(a)
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Part
A Price of RM 875,000/- (Malaysian Ringgit Eight Hundred & Seventy
Five Thousand only) representing the fixed sum payable by the Contractor
to Axens under the PBSA;
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(b)
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Part
B Price of RM 4,742,500/- (Malaysian Ringgit Four Million Seven Hundred
Forty Two Thousand Five Hundred only) representing the fixed sum payable
by the Contractor to Axens under the TTA;
and;
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(c)
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Part
C Price of RM 116,382,500 (Malaysian Ringgit One Hundred Sixteen Million
Three Hundred Eighty Two Thousand Five Hundred
only).
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6.
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Konsultant
Process Sdn Bhd, Company Number (18099-U), 00, Xxxxx XX 00/0X, 00000
Xxxxxx Xxxx, Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxx shall be the Engineer for the
purposes referred to in Clause 2 of the
Conditions.
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7.
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The
delivery by the Contractor to the Purchaser of the Performance Bond, the
Advance Payment Guarantee and the Corporate Guarantees shall be a
condition precedent to any liability of the Purchaser under the Contract
save for the payment of the Deposit by the Purchaser to Contractor on the
Execution Date.
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4
IN
WITNESS whereof this Contract has been signed on behalf of the Parties the day
and year first above written.
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Signed
for and on behalf
of
Mission Biofuels Sdn Bhd by
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| /s/ Xxxxxxxxxx Xxxxxxxxxxx | ||
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Name:
Xxxxxxxxxx Xxxxxxxxxxx
Designation:
Managing Director
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Signed
for and on behalf
of
KNM Process Systems Sdn Bhd by
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| /s/ Xxx Xxxx Eng | ||
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Name:
Xxx Xxxx Eng,
Designation:
Group Managing Director
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In
the presence of
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1.
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Name:
/s/
Xxxxxx Xxxxxx
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2.
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Name:
/s/ Xxxxx
Xxxxx
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Annexures
to the Articles of Agreement
| Annexure a | The Conditions including the Appendices attached thereto |
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Annexure
b
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Contractor's
Proposal and Drawings (including Technical and Commercial proposals from
Axens to the extent superseded by the PBSA and
TTA)
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Annexure
c
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Statement
of Needs ("SON")
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5
CONDITIONS
These
clauses 1 through 53 and the Appendices 1 through 22 thereto are the Conditions
referred to in Article 3(b) of the Articles of Agreement dated July 25, 2007
between Mission Biofuels Sdn Bhd and KNM Process Systems Sdn Bhd.
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Signed
for and on behalf of
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||||
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Mission
Biofuels Sdn Bhd
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/s/
Xxxxxxxxxx Xxxxxxxxxxx
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Name:
Xxxxxxxxxx Xxxxxxxxxxx
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Designation:
Managing Director
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| Signed for and on behalf of | ||||
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KNM
Process Systems Sdn Bhd
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/s/ Xxx Xxxx Eng | |||
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Name:
Xxx Xxxx Eng
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||||
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Designation:
Group Managing Director
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In
the presence of
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1.
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/s/ Xxxxxx Xxxxxx | |||
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Name:
Xxxxxx Xxxxxx
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2.
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/s/ Xxxxx Xxxxx | |||
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Name:
Xxxxx Xxxxx
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Clauses Comprising The
Conditions
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1
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Definitions
and Interpretation
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1.1
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Definitions
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1.2
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Interpretation
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2
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The
Engineer
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2.1
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Engineer's
General Duties
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2.2
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Engineer's
Specific Duties
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2.3
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Contractor's
Duty To Cooperate
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2.4
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Engineer's
Authority
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2.5
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Purchaser
May Delegate
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2.6
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Written
Confirmation By Engineer
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2.7
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Exercise
Of Engineer's Discretion
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2.8
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Termination
Of Engineer's Appointment
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3
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Assignment
and Sub-Contracting
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3.1
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Assignment
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3.2
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Sub-Contracting
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3.3
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Assignment
By Purchaser
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4
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Contract
Documents
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4.1
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Priority
Of Documents
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4.2
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Resolution
Of Ambiguity
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6
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5
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Basis
of Tender And Contract Price
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5.1
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Contractor
To Have Satisfied Himself Fully
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5.2
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Site
Data
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6
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Confidentiality
obligation of Purchaser and/or Engineer
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7
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Underground
Works
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7.1
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Execution
of Underground Works
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7.2
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Property
of the Purchaser
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8
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Progress
Reports
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8.1
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Progress
Reports
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9
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Details
– Confidential
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9.1
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Details
– Confidential
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9.2
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Exceptions
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10
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Notices
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10.1
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Notices
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10.2
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Instructions
and Orders
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10.3
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Service
of Notices
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11
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Purchaser's
Obligations
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11.1
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Payment
Obligations
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11.2
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Purchaser's
Engineer
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11.3
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Purchaser's
Input
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11.4
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Not
Used
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11.5
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Not
Used
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11.6
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Consent
Support to Contractor
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11.7
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Purchaser's
Operating Personnel
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11.8
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Purchaser
to Arrange Feedstock
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11.9
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Not
Used
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11.10
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Not
Used
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11.11
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Purchaser's
Tax Obligations
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11.12
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Security
by Purchaser
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11.13
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Purchaser's
Labour Relations
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11.14
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Disposal
of Hazardous Material
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11.15
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Purchaser
Input
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7
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11.16
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Purchaser's
Representations and Warranties
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12
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Specific
Indemnification
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12.1
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Specific
Indemnification
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13
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Contractor's
Obligations
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13.1
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Works
to be Performed
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13.2
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Contractor
to Provide all Labour and Personnel
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13.3
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Contractor's
Consents and Other Construction Consents
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13.4
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Contractor's
Quality Assurance
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13.5
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Contractor
to Arrange Storage
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13.6
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Contractor
to Furnish Performance Bond
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13.7
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Contractor
to Perform Tests on Completion
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13.8
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Start-up
and Commissioning
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13.9
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Contractor's
Obligation to Provide First Fill of Consumables
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13.10
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Training
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13.11
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Access
to Purchaser and its Designees
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13.12
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Cleanliness
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13.13
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Scheduling
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13.14
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Contractor's
Obligation to Pay Taxes
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13.15
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Security
Arrangements by Contractor
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13.16
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Protection
of Property
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13.17
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Protection
of Property by Sub-Contractors
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13.18
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Royalties
and Licence Fees
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13.19
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Contractor's
Labour Relations
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13.20
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Contractor's
Obligation to Co-operate
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13.21
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Contractor's
Standards of Performance
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13.22
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Contractor
to Comply with Law and Consents
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13.23
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Contractor's
Health and Safety Programme
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13.24
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Contractor's
Insurance Obligations
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13.25
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Contractor's
Representations and Warranties
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14
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Programme
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14.1
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Programme
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14.2
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Revision
of Programme
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8
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14.3
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Cooperation
with Other Contractors
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15
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Design
Documentation
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15.1
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Design
Documentation Discrepancies
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15.2
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Design
Documentation for Approval
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15.3
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Design
Documentation for Information
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15.4
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Works
to be in accordance with Approved Design Documentation
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15.5
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Inspection
of Drawings
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15.6
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Operating
and Maintenance Manuals and Instructions
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15.7
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Copyright
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15.8
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Contractor's
Use of Drawings and Information Supplied by Purchaser or
Engineer
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15.9
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Contractor's
Documentation
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16
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Errors
in Drawings etc. Supplied by Contractor
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16.1
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Errors
in Drawings etc. Supplied by Contractor
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16.2
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Exceptions
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17
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Contractor's
Representatives
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17.1
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Contractor's
Representatives
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17.2
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Objection
to Representatives
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17.3
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Returns
of Labour
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18
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Site
Services and Clearance
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18.1
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Fencing,
Guarding, Lighting and Watching
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18.2
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Not
Used
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18.3
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Clearance
of Site
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18.4
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Opportunities
for Other Contractors
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||
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19
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Not
Used
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||
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20
|
Safety
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||
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21
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Extraordinary
Traffic
|
||
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21.1
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Prevention
of Damage Caused by Traffic
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||
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21.2
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Protection
of Highways and Bridges
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||
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21.3
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Claims
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||
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21.4
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Waterborne
Transport
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||
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22
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Setting
Out
|
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22.1
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Setting
Out
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9
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22.2
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Benchmarks
etc.
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||
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23
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Inspection
and Testing of Plant
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23.1
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Inspection
and Testing of Plant Before Delivery
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23.2
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Dates
of Test and Inspection
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||
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23.3
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Services
for Tests and Inspection
|
||
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23.4
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Failure
on Tests or Inspection
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||
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23.5
|
Effect
on Contractor's Obligation
|
||
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24
|
Delivery
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||
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25
|
Suspension
of Works, Delivery or Erection
|
||
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25.1
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Instructions
to Suspend
|
||
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25.2
|
Contractor's
Expenses
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||
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25.3
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Expense
Incurred Due to Suspension
|
||
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25.4
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Default
by Contractor
|
||
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25.5
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Resumption
of Work, Delivery or Erection
|
||
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26
|
Defects
Before Taking-Over
|
||
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27
|
Variations
|
||
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27.1
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Variations:
Meaning of Variations
|
||
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27.2
|
Purchaser's
Instruction to Vary
|
||
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27.3
|
Valuation
of Variations
|
||
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27.4
|
Disputed
Variations
|
||
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27.5
|
Exceptions
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||
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27.6
|
Notice
and Confirmation of Variations
|
||
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27.7
|
Form
of Variation Order
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||
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28
|
Tests
on Completion
|
||
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28.1
|
Notice
of Tests on Completion
|
||
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28.2
|
Delayed
Tests on Completion
|
||
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28.3
|
Repetition
of Tests on Completion
|
||
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28.4
|
Not
Used
|
||
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28.5
|
Not
Used
|
||
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28.6
|
Operations
Responsibilities
|
||
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28.7
|
Determination
of Results of Tests
|
||
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28.8
|
Contractor
Bonus
|
||
10
|
28.9
|
Consequences
of Failure to Achieve Minimum Acceptable Performance
Criteria
|
|
29
|
Taking
Over
|
||
|
29.1
|
Taking
Over or Final Performance Acceptance
|
||
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29.2
|
Notice
of Taking Over and Issue of Taking Over Certificate
|
||
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29.3
|
Effect
of Taking Over
|
||
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29.4
|
Outstanding
Work
|
||
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29.5
|
Not
Used
|
||
|
29.6
|
Products
produced - Purchaser Possession
|
||
|
29.7
|
Not
Used
|
||
|
29.8
|
Retention
Bond
|
||
|
30
|
Use
Before Taking-Over
|
||
|
31
|
Interference
with Tests
|
||
|
31.1
|
Interference
with Tests
|
||
|
31.2
|
Deemed
Taking-Over
|
||
|
31.3
|
Tests
to be Carried Out During Defects Liability Period
|
||
|
32
|
Time
for Completion
|
||
|
32.1
|
Time
for Completion
|
||
|
32.2
|
Achievement
of Milestones
|
||
|
33
|
Extension
of Time for Completion
|
||
|
33.1
|
Extension
of Time for Completion
|
||
|
33.2
|
Strict
Compliance Required
|
||
|
33.3
|
Minimising
Anticipated Delay
|
||
|
33.4
|
Instructions
to Avoid or Reduce Delay
|
||
|
34
|
Delay
|
||
|
34.1
|
Delay
in Completion
|
||
|
34.2
|
Contractor's
Liability Subject to Qualification
|
||
|
34.3
|
Prolonged
Delay
|
||
|
34.4
|
Contractor's
Liability Not Prejudiced
|
||
|
34.5
|
Liquidated
Damages Reasonable
|
||
|
35
|
Performance
Liquidated Damages
|
||
|
35.1
|
Performance
Liquidated Damages
|
||
|
35.2
|
Liquidated
Damages Reasonable
|
||
11
|
35.3
|
Contractor's
Liability Subject to Qualification
|
||
|
36
|
Defects
Liability
|
||
|
36.1
|
Meaning
of Defects Liability Period
|
||
|
36.2
|
Making
Good Defects
|
||
|
36.3
|
Application
to Works Made Good
|
||
|
36.4
|
Extension
of Defects Liability
|
||
|
36.5
|
Outer
Limit of Defects Liability
|
||
|
36.6
|
Delay
in Remedying Defects
|
||
|
36.7
|
Removal
of Defective Work
|
||
|
36.8
|
Not
Used
|
||
|
36.9
|
Contractor
to Search for Cause of Defect/Damage
|
||
|
36.10
|
Latent
Defects
|
||
|
36.11
|
Liability
for Defects
|
||
|
36.12
|
Sub-Contractor
Warranties
|
||
|
36.13
|
Limitation
of Warranties
|
||
|
37
|
Vesting
of Plant
|
||
|
37.1
|
Vesting
of Plant
|
||
|
37.2
|
Contractor
to Procure Title to Plant
|
||
|
37.3
|
Setting
Aside and Marking Plant
|
||
|
37.4
|
Not
Used
|
||
|
37.5
|
Inspection
of Plant
|
||
|
37.6
|
Contractor
Risk
|
||
|
37.7
|
Certificate
Issued
|
||
|
38
|
Contractor's
Equipment
|
||
|
38.1
|
Contractor's
Equipment
|
||
|
38.2
|
Contractor's
Equipment to be Exclusively for Execution of Works
|
||
|
38.3
|
Loss
or Damage of Contractor's Equipment
|
||
|
38.4
|
Maintenance
to Contractor's Equipment
|
||
|
39
|
Certificates
and Payment
|
||
|
39.1
|
Payment
to Contractor
|
||
|
39.2
|
Note
Used
|
||
|
39.3
|
Not
Used
|
||
12
|
39.4
|
Deduction
from Certificate
|
||
|
39.5
|
Payments
not Conclusive
|
||
|
39.6
|
Application
for Final Certificate
|
||
|
39.7
|
Value
of Final Certificate
|
||
|
39.8
|
Issue
of Final Certificate
|
||
|
40
|
Payment
|
||
|
40.1
|
Payments
|
||
|
40.2
|
Not
Used
|
||
|
40.3
|
Currency
of Payment
|
||
|
41
|
Claims
|
||
|
41.1
|
Notification
of Claims
|
||
|
41.2
|
Allowance
for Profit
|
||
|
41.3
|
Purchaser's
Liability to Pay Claims
|
||
|
42
|
Patent
Rights etc.
|
||
|
42.1
|
Indemnity
Against Patent Infringement
|
||
|
42.2
|
Conduct
of Proceedings
|
||
|
42.3
|
Not
used
|
||
|
42.4
|
Effect
of Infringement
|
||
|
43
|
Accidents
and Damage
|
||
|
43.1
|
Care
of Works
|
||
|
43.2
|
Making
Good Loss or Damage to the Works
|
||
|
43.3
|
Injury
to Persons and Property Whilst the Contractor has Responsibility for Care
of the Works
|
||
|
43.4
|
Injury
and Damage After Responsibility for Care of the Works Passes to
Purchaser
|
||
|
43.5
|
Accidents
or Injury to Workmen
|
||
|
43.6
|
Procedure
for Claims
|
||
|
43.7
|
Survival
of Termination
|
||
|
44
|
Limitation
of Liability and Indirect or Consequential Damages
|
||
|
44.1
|
Mitigation
of Loss
|
||
|
44.2
|
Indirect
or Consequential Damage
|
||
|
44.3
|
Aggregate
Liability
|
||
|
44.4
|
Limit
of Total Liability
|
||
13
|
44.5
|
Limit
of Liability
|
||
|
45
|
Purchaser's
Risks
|
||
|
46
|
Termination
|
||
|
46.1
|
Termination
upon Contractor and Purchaser Events
|
||
|
46.2
|
Termination
Other Than Upon Contractor Non-Remediable Events or Purchaser
Non-Remediable Event
|
||
|
46.3
|
Consequences
of Termination
|
||
|
47
|
Insurance
|
||
|
47.1
|
Contractor's
Insurance
|
||
|
47.2
|
Purchaser's
Insurance
|
||
|
47.3
|
General
Provisions Regarding Insurance
|
||
|
48
|
Remedy
on Failure to Insure
|
||
|
49
|
Force
Majeure
|
||
|
49.1
|
Instances
of Force Majeure
|
||
|
49.2
|
Effect
of Force Majeure
|
||
|
49.3
|
Certain
Events not Excused
|
||
|
49.4
|
Notice
of Force Majeure, Procedure
|
||
|
49.5
|
Consequences
of Change in Law
|
||
|
50
|
Disputes
and Arbitration
|
||
|
50.1
|
Mutual
Discussions
|
||
|
50.2
|
Not
Used
|
||
|
50.3
|
Arbitration
|
||
|
51
|
Applicable
Law
|
||
|
52
|
Miscellaneous
|
||
|
52.1
|
Language
|
||
|
52.2
|
Severability
of Provisions
|
||
|
52.3
|
Waiver
|
||
|
52.4
|
Amendment
|
||
|
52.5
|
Entire
Agreement
|
||
|
52.6
|
Further
Acts and Assurances
|
||
|
52.7
|
Expenses
|
||
|
52.8
|
Assignment
|
||
14
|
52.9
|
No
Partnership
|
||
|
52.10
|
Compliance
with Laws
|
||
|
53
|
Additional
Clauses for Hardware and Software
|
||
|
53.1
|
Application
of this Clause
|
||
|
53.2
|
Warranty
and Performance
|
||
|
53.3
|
Steering
Meetings
|
||
|
53.4
|
Title
to Standard Software
|
||
|
53.5
|
Not
Used
|
||
|
53.6
|
Not
Used
|
||
|
53.7
|
Services
|
||
|
53.8
|
Training
|
||
|
53.9
|
Manuals
and User Documentation
|
||
|
53.10
|
Provisions
Surviving Final Certificates
|
||
15
Appendices to the
Conditions
|
Appendix
|
Title
|
|
1
|
Scope
of Works
|
|
2
|
Certain
Important Terms
|
|
3
|
Not
Used
|
|
4
|
Programme
(Project Time Schedule)
|
|
5
|
Not
Used
|
|
6
|
Not
Used
|
|
7
|
Performance
Guarantees and Liquidated Damages
|
|
8
|
Payment
Schedule
|
|
9
|
Site
|
|
10
|
Not
Used
|
|
11
|
Not
Used
|
|
12
|
Not
Used
|
|
13
|
Purchaser's
Input
|
|
14
|
Form
of Performance Bond
|
|
15
|
Form
of Advance Payment Guarantee
|
|
16
|
Form
of Parent Company Guarantee
|
|
17
|
Form
of Variation Order
|
|
18
|
Form
of Mechanical Completion Certificate
|
|
19
|
Form
of Final Certificate of Payment
|
|
20
|
Form
of Taking Over Certificate
|
|
21
|
Form
of Defects Liability Certificate
|
|
22
|
Form
of Retention
Bond
|
16
CONDITIONS
|
1
|
Definitions and
Interpretation
|
|
1.1
|
Definitions
|
In
construing the Contract the following words and expressions when capitalised and
used shall have the following meanings hereby assigned to them unless the
context otherwise requires:
"Advance Payment"
means the sum as specified in Appendix 2 payable by the Purchaser to the
Contractor as advance payment and part payment towards the Contract Price in
accordance with Article 2 of the Articles of Agreement;
"Advance Payment
Guarantee" means the unconditional, irrevocable and on-demand bank
guarantee in favour of the Purchaser for the amount and validity period as
specified in Appendix 2 and in the form and substance set forth in Appendix 15
hereof, issued by an internationally recognised first class bank acceptable to
the Purchaser;
"Appendix": means
Appendix to the Conditions;
"Articles of
Agreement": means the Articles of Agreement executed by the Purchaser and
the Contractor in respect of the execution of the Works;
"Axens" means the
French company organized as a "Societe Anonyme" and having its main office at 00
xxxxxxxxx Xxxxxxxx Xxxxxxxxx, X-00000, Xxxxx-Xxxxxxxxx, Xxxxxx which is an
affiliate of Instituit Francais due Petrole ("IFP") and an international
provider of technologies, catalysts, absorbents, specialises equipment and
services to the hydrocarbon industry;
"Base Lending Rate":
means the daily six month LIBOR base lending rate quoted by the Purchaser's bank
for Malaysian Ringgit deposits;
"Biodiesel" shall mean
Fatty Acid Methyl Ester meeting the specifications set by the EN14214 or ASTM
6751 standards.
"Biodiesel Output
Guarantee" shall have the meaning set forth in Appendix 7 to the
Conditions;
"Biodiesel Project":
means the Continuous Acid Conditioning and Silica Pretreatment, FFA Pretreatment
and Methyl Ester Transesterification with Biodiesel output of 750 tpd (250000
tpa) and 97.5% Pure Glycerine output of 82 tpd (27308 tpa) along with associated
balance of plant at Kuantan Port, Malaysia, all to be constructed in accordance
with the Contractor's Proposal and SON and to meet the Performance
Guarantees;
"Bonus": means the
amount payable to the Contractor by the Purchaser pursuant to Clause 28.8 in the
event the Contractor completes the Works and Tests on Completion and achieves
the Final Performance Acceptance before the Time for Completion;
"Business Day": means
any Day, which, is not a public holiday in Malaysia;
"Change in Law":
means:
|
|
(i)
|
any
enactment or issue of any new Law by any Malaysian Governmental
Instrumentality
|
|
|
(ii)
|
any
Consent required to be obtained by the Party from any Malaysian
Governmental Instrumentality due to any enactment or issue of any new
Law;
|
17
|
|
(iii)
|
any
amendment, alteration, modification or repeal of any existing Law, by an
Malaysian Governmental Instrumentality or through any interpretation
thereof;
|
|
|
(iv)
|
any
change in any Consent requirement or amendment, alteration, modification
or repeal of any Consent; and
|
|
|
(v)
|
any
change in applicable environmental and safety guidelines and regulations
applicable to the Works,
|
in each
case coming into effect after the date of this Contract,
"Change in Law Cost":
shall mean, with respect to any Change in Law, any cost or expense relating to
the Project resulting from, or otherwise attributable to, such Change in Law,
that is incurred by the Contractor and not otherwise covered by
insurance;
"Commencement Date"
shall mean the date determined pursuant to Article 2 (f) of the Articles of
Agreement.
"Commercial Operation
Date": means the day following the date on which the Final Performance
Acceptance is achieved;
"Contractor Consents"
shall have the meaning as defined in Clause 13.3;
"Corporate
Guarantees": means a corporate guarantee to be procured by Contractor in
favour of the Purchaser from KNM Group Berhad which shall be valid from the
Commencement Date until the issuance of the final Defects Liability Certificate,
in the form and substance as provided in Appendix 16;
"Conditions": means
these conditions attached as Annex (a) to the Articles of
Agreement;
"Consent": means any
approval, consent, authorization or other requirement that is required from any
Governmental Instrumentality under the laws of the Malaysia with respect to the
Biodiesel Project;
"Contract": means the
agreement between the Purchaser and the Contractor for the execution of the
Works comprising the Articles of Agreement and the documents referred to in
Article 3 thereof including all appendices and annexures thereto, as the same
may be amended, supplemented or modified from time to time;
"Contract Price":
means the fixed sum referred to in Article 5 of the Articles of Agreement or
such other sum as may be adjusted in accordance with the terms of the
Contract;
"Contract Value":
means such part of the Contract Price, adjusted to give effect to any additions
or deductions as are provided for in the Contract, as is properly apportionable
as determined by the Engineer to the Plant or work in question. In
determining the Contract Value the state, condition and topographical location
of the Plant, the amount of work done and all other relevant circumstances shall
be taken into account;
"Contractor": means
the Party named as such in the Articles of Agreement;
"Contractor Non-Remediable
Event": has the meaning assigned to it in Clause 46.1.2;
"Contractor Remediable
Event": has the meaning assigned to it in Clause 46.1.1;
"Contractor's
Equipment": means all appliances or things of whatsoever nature required
for the purposes of carrying out the Works but this expression does not include
Plant, materials or other things intended to form or forming a permanent part of
the Works;
18
"Contractor's
Insurance": means the insurance coverage as defined in Clause
47.1;
"Contractor's
Proposal": has the meaning assigned to it at Recital (2) to the Articles
of Agreement;
"Cost": means actual
direct expenses and costs which are incurred by the Contractor subsequent to the
Commencement Date for labour, materials, plant and other services which are
reasonable, necessary and directly associated with accomplishing the execution
of the Works or any portion thereof. Costs shall exclude all indirect
and consequential losses including profit, interest on capital employed and
financing charges;
"CTER Section" shall
mean that part of the Biodiesel Project that represents the Methyl Ester
Transesterification Plant with biodiesel output of 750 tpd (250,000 tpa) and
97.5% pure glycerine output of 82 tpd (27,308 tpa) along with the balance of
plant;
"Day": means a
calendar day;
"Defects Liability
Certificate": means the certificate issued by the Engineer in accordance
with Clause 36.2 when the Contractor has completed to the satisfaction of the
Engineer all such rectification and making good as may be required in respect of
any part of the Works and the relevant Defects Liability Period has
expired;
"Defects Liability
Period": has the meaning assigned to it in Clause 36.1;
"Design
Documentation": drawings, diagrams, details, documents, specifications,
samples, models or information (including calculations, logic or sequence
overview diagrams and functional design specifications for computer
software);
"Engineer": means such
company or person as the Purchaser shall nominate in writing to act for and on
behalf of the Purchaser for the purposes referred to in Clause 2 of the
Conditions and if no such company or person has been appointed, it shall mean
the Purchaser;
"EPCC": means
engineering, procurement, construction and commissioning;
"Execution Date":
means the date of execution of this Contract by the Parties;
"Final Certificate":
the certificate to be issued by the Engineer pursuant to Clause 39.8 in the form
set out in Appendix 12;
"Final Performance
Acceptance" or "FAC": shall have the meaning setforth in Clause 29 of the
Conditions.
"Force Majeure": has
the meaning assigned to it in Clause 49.1;
"Glycerine" means
97.5% pure technical grade glycerine;
"GOM": means the
central Government of Malaysia;
"Good Manufacturing
Practice": means, at a particular time, those practices, methods and acts
as are in accordance with standards of prudence applicable to the Biodiesel
plants as adopted generally for use in the Biodiesel industry which would have
been expected to accomplish the desired result at the lowest reasonable cost
consistent with reliability, safety and expedition and generally in conformance
to the manufacturer's operation and maintenance guidelines;
"Governmental
Instrumentality": means any country, and any ministry, department,
political subdivision, instrumentality, agency, court, corporation or commission
under the direct or indirect control of such country;
19
"Hardware": means all
systems containing microprocessors or computers comprised within the Biodiesel
Project whether linked to a composite distributed control system or stand alone
(except where they comprise a component part of a manufacturer's standard
equipment) and all the equipment and operating systems as listed in the
Contractor's Proposal;
"Law": all laws,
statutes, orders, decrees, injunctions, licences, permits, approvals, agreements
and regulations including those related to taxes and duties of any Governmental
Instrumentality having jurisdiction over the matter in question and any
applicable environmental and safety guidelines and regulations applicable to the
Works, including permitted exceptions to any or all of the
foregoing;
"Latent Defects" shall
have the meaning as defined in Clause 39.10;
"Latent Defects Liability
Period" shall have the meaning as defined in Clause 39.10;
"Malaysian Ringgit" or
"MYR" or "RM" means the lawful
currency of Malaysia.;
"Mechanical
Completion": means, in respect to a Project Section, when the
installation and erection of all equipment, instrument, piping, valves and
interconnections with respect to that Project Section are mechanically complete,
are clean, have completed hydro testing and a certificate for Mechanical
Completion has been issued by the Engineer to the Contractor in respect of the
Project and the Project is ready for commissioning.
"Milestone": means an
event which may be the start or, as the case may be, the completion in whole or
in part of a specified activity as set out in the Programme;
"Minimum Acceptable
Performance Criteria" shall mean such criteria as specified in the
Appendix 2;
"Month": means a month
according to the Gregorian calendar;
"Other Construction
Consents" shall have the meaning as defined in Clause 13.3;
"Part A Price" means
the part of the Contract Price as per Article 5 (a) of the Articles of
Agreement;
"Part B Price" means
the part of the Contract Price as per Article 5 (b) of the Articles of
Agreement;
"Part C Price" means
the part of the Contract Price as per Article 5 (c) of the Articles of
Agreement;
"Parties": means the
Purchaser and the Contractor and "Party" shall mean either of them;
"Payment Schedule":
means the Payment Schedule initialled by the Parties and forming part of the
Contract, attached as Appendix 8 to the Conditions;
"Performance Bond":
means the unconditional, irrevocable and on-demand bond to be furnished by the
Contractor in favour of the Purchaser for an amount equal to 10% of the Contract
Price valid from the Commencement Date until the date of Final Performance
Acceptance and in the form set forth in Appendix 14 hereof, issued by an
internationally recognised first class bank acceptable to
Purchaser;
"Performance
Guarantees" shall have the meaning set forth in Appendix 7 to the
Conditions;
"Plant": means the
Biodiesel Project;
20
"Preliminary
Variation": means a preliminary variation prepared by the Contractor in
accordance with Clause 27.1 in response to a request submitted by the Purchaser
in accordance with either the first or second paragraph of Clause
27;
"Pretreament Section"
shall mean that part of the Biodiesel Project that represents the Continuous
Acid Conditioning and Silica Pretreatment and FFA Pre-treatment
plants;
"Programme": the
Contractor's Project time schedule attached hereto as Appendix 4 or such other
programme as may be amended in accordance with the provisions of the
Contract;
"Project": means the
design, engineering, procurement, financing, manufacture, supply, erection,
construction, installation, completion, testing and commissioning of the Plant
and the owning, operation, management and maintenance of the Plant;
"Purchaser": means the
Party named as such in the Articles of Agreement;
"Purchaser Input":
means the facilities and services to be provided by the Purchaser under this
Contract in a timely manner.
"Purchaser Letter of
Credit": means the letter of credit to be issued to the Contractor by an
international first class bank on behalf of the Purchaser for an amount equal to
the Contract Price less the Advance Payment and less the Deposit, have validity
as provided in Appendix 2 hereunder and, to be issued within 10 (ten) days of
the payment of Advance Payment which is to be in the form provided in Appendix
15.
"Purchaser Remediable
Event": has the meaning assigned to it in Clause 46.1.3;
"Purchaser's Risks"
shall have the meaning specified in Clause 45;
"Purchaser Non-Remediable
Event" : has the meaning assigned to in Clause 46.1.4;
"Remedial Notice": has
the meaning assigned to in Clause 46.1.5(a);
"Remedial Programme":
has the meaning assigned to it in Clause 46.1.5 (b);
"Request for
Variation": shall have the meaning specified in Clause 27.1;
"Retention Bond":
means the unconditional, irrevocable and on-demand bond to be furnished by the
Contractor in favour of the Purchaser for an amount equal to 5% (five percent)
of the Contract Price, valid from the date of Final Performance Acceptance until
the issuance of the Defects Liability Certificate) and in the form set forth in
Appendix 22 hereof,
issued by an internationally recognised first class bank acceptable to the
Purchaser immediately on Final Performance Acceptance and simultaneous to the
release of the Performance Bond.;
"Savings": shall mean,
with respect to any Change in Law, any savings or reduction of cost or expense
relating to the Project resulting from, or otherwise, attributable to, such
Change in Law, that is realised by the Contractor;
"Site": means the land
areas and places designated by the Purchaser and described in Appendix 9 to the
Conditions, on, under in or through which the Works are to be constructed
including the areas for the Biodiesel Project;
"SON": means the
"Biodiesel Project Statement of Needs" attached as Annexure (c) to the Articles
of Agreement;
"Standard Software":
means the Contractor's standard computer programs to be proposed by the
Contractor and reviewed by the Engineer including all documentation relating
thereto to be provided by the Contractor under the Contract.
21
"Subcontractors":
means the firms, persons, companies or entities employed by the Contractor as
subcontractors for the execution or supply of any part of the
Works;
"System": means that
part of the Works which consists of the Hardware and Standard
Software;
"Taking Over" shall
have the meaning as specified in Clause 29;
"Taking Over
Certificate": certificate mentioned in Clause 29.2;
"Tests on Completion":
means all tests specified in the Contractor's Proposal, or otherwise proposed by
the Contractor and approved by the Engineer, to be carried out by the Contractor
at its own costs upon the completion of erection and/or installation of the
Works but before the date of Taking Over in order to demonstrate the performance
of the Works is in accordance with the Contract and the achievement of the
Performance Guarantees;
"Time for Completion":
means the period agreed between the Parties for the achievement of the Final
Performance Acceptance of the Biodiesel Project as stated in Appendix 2, or such
extended time as may be fixed under Clause 33;
"TPD" or "tpd" means
Tonnes Per day.
"Variation": shall
mean a variation entered in accordance with Clause 27;
"Week": means any
continuous period of 7 days;
"Works": means all of
the Plant to be provided, all works required in connection with the design,
engineering, procurement, manufacture, transport, installation, construction,
commissioning, start-up, demonstration and testing of the Biodiesel Project and
all other work to be done by the Contractor under the Contract and shall include
those as detailed in Appendix 1 and any changes made to such works in accordance
with this Contract;
"Writing": means any
hand-written, type-written, computer or electronically generated printed
statement;
|
1.2
|
Interpretation
|
|
|
1.2.1
|
Words
importing persons or parties shall include firms, corporations and any
organisation having legal capacity.
|
|
|
1.2.2
|
Words
importing the singular only also include the plural and vice versa where
the context requires.
|
|
|
1.2.3
|
Wherever
in these Conditions provision is made for the giving of notice or consent
by any person, unless otherwise specified such notice or consent shall be
in writing and the word "notify" shall be construed
accordingly.
|
|
|
1.2.4
|
The
headings in these Conditions shall not be deemed part thereof or be taken
into consideration in the interpretation or construction thereof or of the
Contract.
|
|
|
1.2.5
|
Except
where a reference is made expressly to any other document, any references
in these Conditions to Clauses, sub-clauses, paragraphs and Schedules are
references to those contained in these Conditions. Except where
otherwise stated references in a Clause to a sub-clause are to that
sub-clause of that Clause in which the reference
appears.
|
|
|
1.2.6
|
Reference
to any gender includes the other
genders;
|
22
|
|
1.2.7
|
Unless
otherwise expressly mentioned, a reference to any document is a reference
to that document and all exhibits, schedules, appendices and the like
incorporated therein, as the same is amended, modified, supplemented,
waived, varied, added to, substituted, replaced, renewed or extended from
time to time;
|
|
|
1.2.8
|
Any
date or period set forth in this Contract shall be such date or period or
such other date or period as maybe extended pursuant to the terms and
provisions of this Contract.
|
|
2
|
The
Engineer
|
|
2.1
|
Engineer's General
Duties
|
The
powers of the Engineer are set out in this Clause 2. Unless otherwise
expressly provided in the Contract neither the exercise of these powers, its
failure to exercise such powers nor the appointment or engagement of the
Engineer by the Purchaser shall in any way relieve the Contractor of any of its
obligations or liability under the Contract. No approval, consent or
failure to disapprove any matter by the Engineer shall relieve the Contractor of
any of his obligations or liability under the Contract. The Engineer
shall not issue the design of the Works. The general powers of the
Engineer include but are not limited to quality assurance concerning the
Contractor's design, specifications, workmanship and materials and monitoring
and checking the preparation of the design and specification of the Works and
the supply, installation, construction, testing, commissioning, completion of
the Works and performance of the Contractor's obligations under Clause 36
(Defects Liability), and verifying that the Works are being carried out by the
Contractor in accordance with the SON, the Contractor's Proposal, and the
standards of safety, quality and performance required by the Contract and
Law.
The
Engineer shall coordinate among the Contractor, the Purchaser and himself in
approving or certifying documents, which have been submitted to the Engineer by
the Contractor.
|
2.2
|
Engineer's Specific
Duties
|
The
specific duties and powers of the Engineer shall include those set out
below:
|
|
(i)
|
Monitor
either at regular intervals or on a continuous basis the design,
manufacture and site progress against the Programme and the Contractor's
systems for controlling the progress of the
Works;
|
|
|
(ii)
|
Receive
and review for compliance with the Contract and suitability for operation
and maintainability and approve or reject the Design Documentation
specified in the Contract as requiring the Engineer's
approval. Inspect, check and comment at all stages upon the
design undertaken. Receive the Design Documentation required to
be submitted to the Engineer for information
only;
|
|
|
(iii)
|
Review
mass balances and utility consumption data for performance and layout
drawings for operation and
maintenance;
|
|
|
(iv)
|
Establish
programme validation points for quality audit of the design, manufacture
and construction;
|
|
|
(v)
|
Examine
either on a continuous basis or at regular intervals the steps taken by
the Contractor in respect of quality assurance and checking that the same
are adhered to (for which purpose, the Engineer may arrange and carry out
such inspections and controls as it deems necessary in order to ensure the
quality of the Works and compliance with the
Contract);
|
23
|
|
(vi)
|
Comment
on the training programme for future
operators;
|
|
|
(vii)
|
Issue
payment certificates and the final certificates pursuant to Clause
39. Value plant, goods and materials and work executed, as
required by the Contract;
|
|
|
(viii)
|
Witness
and inspect the assembly of the Plant at the manufacturer's premises, and
its erection on the Site in accordance with an agreed schedule of works
and Site tests and the commissioning
procedures;
|
|
|
(ix)
|
Comment
on and seek modifications for completeness and accuracy, where required,
of the Contractor's operating procedures, and operating and maintenance
manuals;
|
|
|
(x)
|
Liaise
with the Contractor or its third party inspectors, as the case may be, in
terms of statutory duties for pressure parts and lifting
equipment;
|
|
|
(xi)
|
Carry
out a quality audit on the civil design procedures and review the material
quality for suitability to provide long life durability and low
maintenance as per the requirements of the Contract and the Good
Manufacturing Practice;
|
|
|
(xii)
|
Monitor
the Contractor's applications for licences and approvals under Clause
13;
|
|
|
(xiii)
|
Issue
the Taking Over Certificate provided that such certificates shall only be
valid and effective if the same has been countersigned by the
Purchaser;
|
|
|
(xiv)
|
Monitor
proposed Tests on Completion and other tests and procedures and the
commissioning of the Works with reference to the SON and the Contractor's
Proposal and the Contract;
|
|
|
(xv)
|
Advise
the Purchaser of any difference between actual and specified
performance;
|
|
|
(xvi)
|
Notify
the Purchaser of defects, which, in the Engineer's view, should be
rectified prior to the issue of the Taking Over
Certificate;
|
|
(xvii)
|
Consider
and make decisions upon any applications for extensions of the Time for
Completion under Clause 33; and
|
|
(xviii)
|
Any
other powers and duties expressly provided for in these
Conditions.
|
|
2.3
|
Contractor's Duty to
Co-operate
|
The
Contractor shall cooperate with the Engineer and the Purchaser and provide such
access, information and assistance as may be reasonably necessary to enable the
Engineer to perform its duties as set out in the Contract. The
Contractor shall further comply with all decisions, instructions and orders made
or issued by the Engineer within the period specified therein, failing which,
without prejudice to any other rights or remedies available to the Purchaser
under this Contract, the Purchaser may employ other persons to execute any work
whatsoever which may be necessary to give effect to such decision, instruction
or order and all costs incurred in connection with such employment shall be
recoverable from the Contractor by the Purchaser as a debt or set-off against
any monies due or to become due to the Contractor under this
Contract.
|
2.4
|
Engineer's
Authority
|
The
Engineer shall have no authority to relieve the Contractor of any of its duties
or obligations under the Contract nor, except as expressly provided hereunder or
elsewhere in the Contract, to order any work which would result in any delay to
the completion of the Works or any extra payment to the Contractor by the
Purchaser, or to make any variation of or in the Works.
24
|
2.5
|
Purchaser May
Delegate
|
The
Purchaser may from time to time in writing delegate to the Engineer any of the
powers and authorities vested in the Purchaser (or revoke the same) and shall
furnish to the Contractor a copy of all such written delegations or revocations
of powers and authorities. Any written instruction or approval given
by the Engineer to the Contractor within the terms of such delegation, but not
otherwise, shall bind the Contractor and Purchaser as though it had been given
by the Purchaser.
|
2.6
|
Written Confirmation
by Engineer
|
The
Contractor may require the Engineer to confirm in writing any decision,
instruction or order of the Engineer, which is not in writing. The
Contractor shall make such request without undue delay and the Engineer shall so
confirm in writing its decision, instruction or order without undue delay and in
any event within 2 (two) working days of receipt of such request and if the
Engineer fails to do so, the decision, instruction or order shall be of no
effect
|
2.7
|
Exercise of Engineer's
Discretion
|
Wherever
by the Conditions the Engineer is required to exercise its discretion
either:
|
|
a.
|
by
giving its decision, opinion or consent;
or;
|
|
|
b.
|
by
expressing its satisfaction or approval;
or;
|
|
|
c.
|
by
determining the Contract Value; or;
|
|
|
d.
|
otherwise
by taking action which may affect the rights and obligations of either of
the Parties,
|
he shall
exercise such discretion in good faith and in an impartial manner.
|
2.8
|
Termination of
Engineer's Appointment
|
The
Purchaser shall at any time be free to terminate the appointment of the Engineer
and appoint a replacement.
|
3
|
Assignment and
Sub-Contracting
|
|
3.1
|
Assignment
|
The
Contractor shall not assign the benefit of the Contract in whole or in part or
any of its obligations under the Contract. A charge in favour of the
Contractor's bankers of any moneys due under the Contract, or the subrogation of
insurers to the Contractor's rights shall not be considered an
assignment.
|
3.2
|
Sub-Contracting
|
The
Contractor shall not sub-contract all or substantially whole of the
Works. The Contractor shall require prior written consent of the
Purchaser (or Engineer if so delegated by the Purchaser) for the procurement of
and specifications of any proprietary equipment and materials, save that no such
consent shall be required for suppliers and sub-contractors who are named in the
Contract or previously approved in the Contractor's
Proposal. Provided that the consent for the following two
subcontractors is deemed to have been granted to the Contractor by the
Purchaser;
|
|
a)
|
Oiltek,
Malaysia for the technology, engineering and design of the Pretreatment
Section; and;
|
25
|
|
b)
|
Axens
for the Esterfip-H technology and basic engineering for the CTER
Section.
|
Any such
consent shall not relieve the Contractor from any liability or obligation under
the Contract and the Contractor shall be responsible for all the acts, defaults
and neglects of any sub-contractor (whether domestic or nominated), supplier,
their sub-subcontractors, suppliers, agents, servants or workmen as fully as if
they were the acts, defaults or neglects of the Contractor, its agents, servants
or workmen. All application for consent under this Clause shall be in
writing and accompanied with the relevant details of the work to be
subcontracted or the materials to be supplied, scope of work, labour force,
schedule and company profile and track record of the proposed subcontractor and
supplier.
|
3.3
|
Assignment by
Purchaser
|
The
Purchaser may at any time assign the Contract or any rights of the Purchaser
thereunder to its affiliates or financiers provided that such assignment does
not materially adversely affect the security or the timely payment of the
Contract Price to the Contractor. Such assignment shall not relieve
the Contractor from any duty, obligation or responsibility under the
Contract.
|
4
|
Contract
Documents
|
|
4.1
|
Priority of
Documents
|
The
priority of the documents which form part of the Contract are as listed below
and in the event of any discrepancy or inconsistency between the documents, a
document higher on the list will prevail over a document lower on the
list:
|
|
a.
|
the
Articles of Agreement;
|
|
|
b.
|
the
Conditions and all the appendices attached
thereto;
|
|
|
c.
|
the
Contractor's Proposal and Drawings;
|
|
|
d.
|
the
SON;
|
|
4.2
|
Resolution of
Ambiguity
|
Subject
to Clause 4.1, the documents forming the Contract are to be taken as mutually
explanatory of one another. Any ambiguity, inconsistency, discrepancy
or conflict may be reasonably explained and resolved by the Purchaser and the
Purchaser may issue instructions resolving the ambiguity, inconsistency,
discrepancy or conflict to the Contractor and the Contractor shall, at its own
cost, comply with such instructions and shall not be entitled to any extension
of Time for Completion under Clause 33. The Contractor shall be
entitled to dispute the Purchaser's instructions under this Clause.
|
5
|
Basis of Tender And
Contract Price
|
|
5.1
|
Contractor to Have
Satisfied Himself Fully
|
The
Contractor shall be deemed to have thoroughly inspected and surveyed the Site
and its surroundings (except as expressly provided in Clause 7.1) and to have
satisfied himself fully as to the condition (including geological, climatic,
underground and hydrological condition) of all circumstances affecting the Site
(including any safety regulations applicable thereto), the extent and nature of
the design, work, labour, materials and goods necessary for the completion of
the Works, the means of communication with and access to and through the Site,
the available methods of transporting the Plant and Contractor's Equipment to
the Site and other matters necessary for performance of the Contract, and to
have examined the Conditions, Contractor's Proposal and the SON together with
such drawings, plans and information as may be annexed thereto or referred to
therein. The Contractor shall at its own expense be responsible for
obtaining any other right of access, accommodation, land or facilities outside
the Site as may be required by him or its workmen for the purpose of the Works
under the Contract.
26
The
Contractor shall be further deemed to have satisfied himself before agreeing
with the Purchaser as to the correctness and sufficiency of the Contractor's
Proposal and the Contract Price which shall (except insofar as it is otherwise
expressly provided in the Contract) cover all its obligations under this
Contract and all things necessary for the proper execution and completion of the
Works and the remedying of any defects. For the avoidance of doubt,
the Contract Price shall include all ancillary and other works and expenditure,
whether separately or specifically mentioned or described in this Contract or
not, which are either indispensably necessary to carry out and bring to
completion the works described in the Contract or which may contingently become
necessary to overcome difficulties before completion.
|
5.2
|
Site
Data
|
Without
prejudice to its obligations under Clause 13, the Contractor shall be
responsible for any misunderstanding or incorrect information howsoever
obtained, including any information provided by the Purchaser or the Engineer,
except for the SON, the correctness & accuracy of which shall be the
Purchaser's responsibility. Except for and subject to Clause 7.2, 27,
45 and 49, and the existence of hazardous materials or historical artefacts at
the Site, no additional payment or adjustment to the Contract Price or extension
of the Time for Completion shall be made on account of any conditions related to
the Site, including without limitation underground conditions, hydrological,
climatic, environmental or other physical conditions.
|
6
|
Confidentiality
obligation of Purchaser and/or
Engineer
|
Any and
all designs, plans, specifications, processes and other engineering or technical
information or data, including but not limited to the engineering design work
relating to the Works, which is delivered to the Purchaser and/or the Engineer
in connection with the Contract is confidential to the
Contractor. The Purchaser and/or the Engineer shall not and shall not
permit any other party to use, transfer, assign, disclose, divulge or publish
any such designs, plans, specifications, processes or other engineering or
technical information or data to any third party for any reason or purpose
without the Contractor's prior written consent (save insofar as may be necessary
for the purposes of the Contract or for the performance of the Purchaser's or
the Engineer's obligations under this Contract). Provided, however,
that the Purchaser and/or the Engineer shall have no obligation to maintain in
confidence any information that it can demonstrate (a) is in public domain at
the time of disclosure; or; (b) though originally confidential information,
subsequently became part of the public domain through no fault of the Purchaser
and/or the Engineer; or; (c) though originally confidential information, is
rightfully received by the Purchaser and/or Engineer from a third party without
obligations of confidence and that such third party was free to disclose this
information as on the date of disclosure; or; (d) is in response to a court
order or decree or is otherwise required by Law, provided that the Purchaser
and/or the Engineer shall notify the Contractor, if practicable, prior to such
disclosure and in no case more than 10 (ten) days after such
disclosure.
|
7
|
Underground
Works
|
|
7.1
|
Execution of
Underground Works
|
The
Contractor shall execute all the underground works required for the performance
of the Works including any relocation, diversion, reinstatement and making good
of any damage to pre-existing services or structures. All such works
as may be necessary or desirable shall be included in the Contract Price and the
Programme.
27
|
7.2
|
Property of the
Purchaser
|
All
articles, materials or substances of value and structures and other remains or
things of geological or archaeological interest discovered on the Site shall, as
between the Purchaser and the Contractor, be deemed to be the absolute property
of the Purchaser. The Contractor shall take suitable precautions to
prevent its workmen or any other persons from removing or damaging any such
article or material, substance or thing and shall, immediately upon discovery
thereof and before removal, acquaint the Engineer of such discovery and carry
out the Engineer's instructions for dealing with the same. The
Contractor shall be permitted extension of the Programme and additional Cost as
is reasonably required to carry out Engineer's instructions, and Clause 27 shall
apply.
|
8
|
Progress
Reports
|
|
8.1
|
Progress
Reports
|
The
Contractor shall supply to the Purchaser an activity report at the times and
covering the periods and matters required therefore in the
Programme. The Contractor also shall provide to the Purchaser and the
Engineer, promptly upon becoming aware thereof, a report describing the
occurrence of any act or condition materially affecting the Works or its ability
to perform its obligations under this Contract.
The
Contractor shall within 5 (five) days of the end of each month, issue to the
Purchaser and the Engineer monthly progress reports containing full details of
the progress of all Works achieved including Milestones up to the end of such
month and identifying any areas of delay or difficulty in a form to be required
by the Engineer.
If there
is an objection by the Engineer to any item contained in a monthly progress
report, the Contractor shall amend the report to take into account such
objection and resubmit the amended report after consultation with the
Engineer.
|
9
|
Details -
Confidential
|
|
9.1
|
Details -
Confidential
|
The
Contractor shall treat the details of the Contract and any information made
available in relation thereto and all information concerning the design,
construction and performance of the Works as confidential and shall not publish
or disclose the same or any particulars thereof to any third party (save insofar
as may be necessary for the purposes of the Contract), without the previous
consent in writing of the Purchaser provided that nothing in this Clause shall
prevent the publication or disclosure of any such information that has come
within the public domain otherwise than by breach of this Clause. The
Contractor shall only divulge confidential information to those of the
Contractor's employees as are directly involved or engaged for the purposes of
the Contract and who need to know the same and will ensure that such employees
are aware of and comply with these obligations as to
confidentiality. The Contractor shall ensure that its sub-contractors
and/or suppliers are bound by the requirements of this Clause. The
provisions of this Clause 9 shall survive the termination of this
Contract.
|
9.2
|
Exceptions
|
Nothing
in this Clause shall prevent the communication of any information by the
Contractor to its bankers and professional advisers or others to whom it is
under a legally enforceable obligation to disclose the same.
|
10
|
Notices
|
|
10.1
|
Notices
|
Any
notice to be given under the Contract shall be served by sending the same to the
respective addresses of the Parties as set out in Appendix 2.
28
|
10.2
|
Instructions and
Orders
|
All
certificates, instructions and orders to be given by the Engineer or the
Purchaser under the Contract shall be served by sending the same by registered
post, cable, courier, telex or facsimile transmission to, or by leaving the same
at, the Contractor's address as set out in the Articles of Agreement or such
other address as the Contractor may give prior written notice of to the Engineer
and Purchaser for that purpose.
|
10.3
|
Service of
Notices
|
Any
notice sent by telex, cable or facsimile transmission shall be deemed to have
been served at the time of transmission. A notice sent by post shall
be deemed to have been served 5 (five) business days after posting. A
notice delivered personally or by courier shall be deemed to have been given at
the time of delivery.
|
11
|
Purchaser's
Obligations
|
|
11.1
|
Payment
Obligations
|
The
Purchaser shall make timely payments to the Contractor of all amounts due to the
Contractor under this Contract in accordance with the terms and provisions of
this Contract.
|
11.2
|
Purchaser's
Engineer
|
The
Purchaser shall designate a representative (the "Engineer") who shall be
acquainted with the Project and shall have authority and responsibility to act
on behalf of the Purchaser pursuant to Clause 2 hereof.
|
11.3
|
Purchaser's
Input
|
The
Purchaser represents that it has obtained the requisite rights to control over
or use of the land areas comprising the Site which are required by the
Contractor to carry out the Contractor's obligations under the Contract at the
Site and the Purchaser shall make the Site available to the Contractor (but not
for Contractor's exclusive use) on or before 15th August 2007. If the
Purchaser fails to give to the Contractor access to and possession of the Site
on such date stated, the Engineer, as may be reasonable in all the
circumstances, shall ascertain and certify the amount of any Cost incurred by
the Contractor and any impact on the Programme as a result and such amount and
impact shall be treated as a Variation according to Clause 27 and/or an
extension of Time for Completion according to Clause 33 as
applicable.
|
11.4
|
Not
Used.
|
|
11.5
|
Not
Used
|
|
11.6
|
Consent Support to
Contractor
|
With
respect to Contractor Consents and Other Construction Consents, the Purchaser
shall provide support to the Contractor, which support shall include: (a)
attendance at meetings with the Contractor and third parties designated by the
Contractor, (b) assistance in preparation of responses to inquiries by
Governmental Instrumentality, (c) assistance in presentations at hearings of
Governmental Instrumentality, (d) provision of all necessary information and
documents required by Contractor in connection with obtaining any Contractor
Consents or other Construction Consents and, (c) such other services as
Contractor may reasonably request from time to time. If the Purchaser
at any time becomes aware of any applicable Consent that the Purchaser or the
Contractor is required or recommended to obtain and that is of the type other
than Other Construction Consents and Contractor Consents, respectively, the
Purchaser shall promptly give notice thereof to Contractor.
29
|
11.7
|
Purchaser's Operating
Personnel
|
The
Purchaser or its designee shall provide appropriate operators and maintenance
personnel with sufficient knowledge and experience for the normal, day-to-day,
in-service operation and maintenance of the Biodiesel Project, to assist
Contractor by performing normal operating and maintenance duties during the
commissioning and Start-up of the Project Sections and the performance of the
Tests on Completion. Said Purchaser's personnel will be available to
Contractor for such purposes, as needed, until Final Performance
Acceptance. Purchaser's personnel shall not be substitutes for,
replacements of, or alternates to Contractor having a work force in sufficient
numbers and with all skills necessary or desirable to achieve the Commercial
Operation Date. Contractor shall be responsible for the direct
supervision with respect to operational matters of the Purchaser's operating and
maintenance personnel during the commissioning, start-up, testing and operation
of the Project until the Final Performance Acceptance or the earlier takeover
and use of the Project by the Purchaser. The provision of personnel
by the Purchaser or its designee pursuant to this Clause 11.7 shall not relieve
Contractor of any of its obligations or liabilities hereunder.
|
11.8
|
The Purchaser to
Arrange Feedstock
|
The
Purchaser shall at its own cost arrange for the feedstock and consumables
specified in the performance feedstock specifications set forth in Appendix 13
hereto to be delivered to the Biodiesel Project in reasonable and sufficient
quantity in order to enable Contractor to perform start-up, commissioning and
testing of the Biodiesel Project in accordance with the terms of this Contract
and achieve the Final Performance Acceptance, provided that Contractor shall
have given written notice to the Purchaser of the need for such feedstock at
least 45 (forty five) days prior to the scheduled start-up if such scheduled
date has been delayed from the date set forth in the original
Programme. If such scheduled start-up date will occur earlier than
originally scheduled, Contractor shall provide written notice of the need for
such feedstock to the Purchaser at least 45 (forty five) days prior to the
start-up date and the Purchaser will use its reasonable efforts to provide such
feedstock and consumables earlier than scheduled. Notwithstanding the
foregoing, any feedstock and consumables provided by the Purchaser under this
Clause 11.8 in connection with the repetition of any Test on Completion (in
excess of three retests) after the achievement of Final Performance Acceptance
to demonstrate the Final Performance Acceptance, to the extent such repetition
of any Test on Completion is required for any reason attributable to Contractor,
shall be provided by the Purchaser at the expense of Contractor to the extent
the Purchaser cannot recover the cost of such feedstock by sale of Biodiesel
and/or Glycerin produced. Contractor shall reimburse the Purchaser
for any such unrecoverable costs of any such excess feedstock and consumables
for such tests within 14 (fourteen) days after receipt of Purchaser's invoice
therefor, along with all supporting documentation, failing which the Purchaser
shall be entitled to set off or deduct such costs from monies due or to become
due to the Contractor under the Contract.
|
11.9
|
Not
Used
|
|
11.10
|
Not
Used
|
|
11.11
|
Purchaser's Tax
Obligations
|
Subject
to Clause 11.11.1 and clause 13.14, the Purchaser shall be responsible for and
pay all Malaysian customs duties, excise taxes and sales taxes. The
Purchaser shall make timely, direct payment to the relevant Governmental
Instrumentality of such taxes and duties or provide such assessed amounts in
advance to the Contractor to enable timely payment of such taxes and
duties. The Purchaser and the Contractor shall cooperate to ensure
the proper assessment of all such taxes and assessments. The
Contractor shall submit to the Purchaser in good time such details of all plant
and equipment incorporated in the Works / Biodiesel Project as will enable the
Purchaser to obtain all necessary import permit or licences as well as any tax
exemptions on items that shall be used for the Works. The Purchaser
and the Contractor shall cooperate to facilitate importation and customs
clearance formalities.
30
|
11.11.1
|
Specific Tax
Exceptions
|
The
Purchaser shall not be obliged to pay the relevant Governmental Instrumentality
in the following instances:
|
|
(a)
|
Malaysian
custom duties, excise tax, works contract tax or service tax entry tax,
and service tax assessed in relation to temporary works, the replacement
of any rejected material or equipment, or the Contractor's equipment which
is not to be incorporated in the Biodiesel Project or Works (which shall
be paid directly by the
Contractor);
|
|
|
(b)
|
any
fine, penalty, confiscation charges or other charges in consequence of
mis-declaration or for wrong description by the Contractor or for any
other non-compliance by the Contractor with any applicable
Law.
|
|
11.12
|
Security by The
Purchaser
|
After
Final Performance Acceptance of the Biodiesel Project or the earlier take over
and use of the Plant by the Purchaser, the Purchaser shall supply such security
and take such steps to secure and protect such Biodiesel Project from loss,
damage or destruction as the Purchaser shall reasonably deem necessary and
prudent. Purchaser shall coordinate any such security measures with
the Contractor's security plan required to be provided by the Contractor up to
Final Performance Acceptance, and the Purchaser shall cooperate with the
Contractor in the implementation of any such security measures for the Biodiesel
Project.
|
11.13
|
Purchaser's Labour
Relations
|
The
Purchaser shall be responsible for all labour relation matters relating to the
services being performed by the Purchaser and the Purchaser's other contractors
on the Site and shall at all times comply with all applicable employment laws
and labour welfare legislation.
|
11.14
|
Disposal of Hazardous
Material
|
The
Purchaser shall remove, transport and dispose of or cause the removal,
transportation and disposal of any hazardous material transported into the Site
by the Purchaser or the Purchaser's other suppliers and other contractors,
pre-existing or created, used or handled by the Purchaser or the Purchaser's
other suppliers and contractors on the Site. The Purchaser shall
notify the Contractor immediately upon the discovery of the presence of any
hazardous material on, or the release of hazardous material on or from, the
Site. The removal, transportation and disposal of such hazardous
materials shall be conducted in accordance with all applicable Laws and
applicable Consents.
|
11.15
|
Purchaser
Input
|
The
Purchaser shall provide the facilities, components and services to be provided
by the Purchaser in a timely manner.
|
11.16
|
Purchaser's
Representations and
Warranties
|
The
Purchaser represents and warrants to Contractor that;
31
|
11.16.1
|
The
Purchaser is a company organized, validly existing and in good standing
under the laws of Malaysia and that the execution, delivery and
performance of this Contract have been duly authorized by all requisite
corporate action and will not violate any provision of any Governmental
Instrumentality, rule, regulation, statute or ordinance, or violate any
provision of its charter or bylaws or any indenture, contract or
instrument to which it is a party or by which it or its property may be
bound or affected.
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|
11.16.2
|
The
Purchaser is not in violation of any applicable Law, or any other law,
statute, order, rule or regulation promulgated, or judgment entered, by
any national, state or local Governmental Instrumentality, that, for
either an individual violation or for a number of violations, in the
aggregate, would adversely affect its ability to perform its obligations
under this Contract.
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|
11.16.3
|
The
Purchaser is, or will be, the holder of all national, state, local or
other applicable Consents required to conduct its business. The
Site is leased by the Purchaser. Purchaser has obtained, or has
no reason to expect that it will not in due course and without undue delay
(subject to Force Majeure Events) obtain, all the Purchaser consents
(other than the Contractor's Consents and the Other Construction
Consents).
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|
11.16.4
|
The
Purchaser has obtained, or has no reason to expect that it will not in due
course and without undue delay (subject to Force Majeure Events) obtain,
all of the approvals, certificates, Consents and licences with respect to
any Governmental Instrumentality, or any department or agency thereof,
necessary, required or appropriate in connection with procurement of the
Biodiesel Project on the Site.
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|
11.16.5
|
The
Purchaser further warrants that it will notify the Contractor if at any
time prior to Final Performance Acceptance any of the foregoing
representations and warranties ceases to be accurate and complete in any
material respect.
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|
11.16.6
|
The
Purchaser has had the opportunity to consult legal counsel and will
observe the laws of any applicable jurisdiction that may be pertinent to
the Purchaser's performance
hereunder.
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|
12
|
Specific
Indemnification
|
|
12.1
|
The
Contractor shall fully indemnify, save harmless and defend the Purchaser
from and against any and all damages in favor of any third parties
(including, without limitation, Purchaser's shareholders, each of their
subsidiaries, and the directors, officers, agents and employees of each of
them) with respect to (a) failure of the Contractor or its agents to
comply with the Law and Consents, (b) failure of the Contractor or its
agents to make payments of taxes relating to the Contractor's income or
other taxes required to be paid by the Contractor pursuant to this
Contract without reimbursement or compensation hereunder or (c) any
hazardous or toxic materials the Contractor or its agents have at any time
brought on and caused the release thereof from the
Site. Purchaser shall fully indemnify, save harmless and defend
the Contractor from and against any and all damages in favor of any third
parties (including, without limitation, its shareholders and subsidiaries,
and the directors, officers, agents and employees of each of them) with
respect to (a) failure of the Purchaser or any of its agents to comply
with Law and Consents, (b) failure of Purchaser or its agents to make
timely payments of taxes relating to the Purchaser's income or other taxes
required to be paid by the Purchaser hereunder, and (c) any hazardous or
toxic materials the Purchaser, or any of its other agents have brought on
and caused the release thereof from the Site or any other hazardous or
toxic materials found on or under the
Site.
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32
|
13
|
Contractor's
Obligations
|
|
13.1
|
Works to be
Performed
|
Except as
otherwise expressly set forth in this Contract, the Contractor shall perform or
cause to be performed all the Works, on a fixed price lumpsum basis in
accordance with the provisions of this Contract including:
|
|
(i)
|
all
engineering, design, procurement and manufacturing required for a
completely engineered Biodiesel
Project;
|
|
|
(ii)
|
Transportation
of plant & equipment up to Site, port of entry clearance and handling
works in Malaysia required in connection with the completion of the
Biodiesel Project;
|
|
|
(iii)
|
construction
infrastructure works, civil and structural construction, mechanical and
electrical erection and installation works and commissioning, start-up and
testing of the Biodiesel Project, including obtaining the relevant
licensing and Consents,
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|
|
(iv)
|
provision
of all necessary labour, construction fuels, chemicals, utilities, tools,
Contractor's Equipment, supplies and other consumables and works (other
than materials, equipment and supplies provided by Purchaser's suppliers
or Purchaser all as outlined in Clause 11.8);
and;
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|
|
(v)
|
making
good any defects or deficiencies in the Works in accordance with the
obligations of the Contractor pursuant to Clause 36
hereof.
|
The
Contractor shall be responsible for completing the Works and achieving the Final
Performance Acceptance by the agreed Time for Completion and demonstrating the
capability of the Biodiesel Project to achieve the Performance Guarantees
failing which the Contractor shall be liable for and pay to the Purchaser
applicable liquidated damages for delay and performance shortfall pursuant to
Clause 34 and 35, as the case may be.
|
13.2
|
Contractor to Provide
all Labour and Personnel
|
The
Contractor shall provide all labour and personnel required in connection with
the Works including without limitation:
|
|
(a)
|
professional
engineers licensed in accordance with any applicable licensing
requirements in Malaysia;
|
|
|
(b)
|
a
project construction manager and structural, mechanical, electrical,
instrumentation and control, civil, construction, start-up and training
supervisors, provided that at least two of the seniormost personnel have
had have had oil refining or processing plant experience and all others
have had relevant plan experience and all of whom shall be reasonably
proficient in the English language;
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|
|
(c)
|
a
project manager or other engineer who shall be fully acquainted with the
Project, shall be proficient in the English language and shall have the
authority to administer this Contract on behalf of the
Contractor;
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|
|
(d)
|
quality
assurance personnel; and;
|
|
|
(e)
|
all
field construction labour, craftsmen and
technicians.
|
33
Upon
Purchaser's request, the Contractor shall provide Purchaser with the resumes of
any key personnel employed in connection with the Project. The
Contractor represents that these selected key personnel shall be permanently
assigned to the performance of the Works so long as they remain in the
employment of the Contractor. Any replacement of these selected key
personnel shall be made with people of equivalent or better qualifications and
experience and the resumes of such personnel shall be provided to the Purchaser
for prior written approval.
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13.3
|
Contractor's Consents
and Other Construction
Consents
|
The
Contractor shall at its own costs obtain and maintain in effect all applicable
Consents required in connection with the Contractor's performance of its
obligations hereunder (collectively, "Contractor Consents"), including without
limitation (a) licences, permits and registrations to do business and undertake
construction works in the jurisdictions where the Works are to be performed
(including making the necessary payment for the requisite levy pursuant to the
Construction Industry Development Board Act 1994), (b) Consents required to be
obtained with respect to the Works and (c) Consents necessary to move, transport
and deliver construction and other types of equipment and materials to and from
the Biodiesel Project Site. The Contractor shall also at its own
costs obtain in the name of the Purchaser at the appropriate stage of
construction those applicable Consents required to be obtained in the
Purchaser's name in connection with the completion of the Biodiesel Project
(collectively, "Other Construction Consents").
|
13.3.1
|
If
the Contractor at any time becomes aware, whether as a result of notice
from the Purchaser or otherwise, of any applicable the Contractor's
Consent that the Contractor is required or recommended to obtain, the
Contractor shall promptly give notice thereof to the Purchaser and the
Contractor shall be responsible for obtaining such applicable Consent at
the Contractor's cost, provided that if the need for such applicable
Consent arises from a Change in Law, then provisions of Clause 27 shall
apply.
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|
13.3.2
|
If
the Contractor at any time becomes aware, whether as a result of notice
from the Purchaser or otherwise, of any applicable Other Construction
Consents that the Purchaser is required or recommended to obtain, the
Contractor shall promptly give notice thereof to the Purchaser and the
Contractor shall be responsible for obtaining such applicable Consent at
the Contractor's cost. If the need for such applicable Consent
arises from a Change in Law, then provisions of Clause 27 shall
apply.
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|
13.3.3
|
With
respect to the Purchaser Consents, the Contractor shall provide support to
the Purchaser, which support shall include: (a) attendance at meetings
with the Purchaser and third Parties designated by the Purchaser, (b)
assistance in preparation of response to inquiries by Governmental
Instrumentality, (c) assistance in presentations at hearings of
Governmental Instrumentality, (d) provision of all reasonably available
information and documents required by the Purchaser in connection with
obtaining any the Purchaser Consents and (e) such other assistance as the
Purchaser may reasonably request from time to time. With
respect to Other Construction Consents, the Contractor shall assume
primary responsibility for obtaining all such Other Construction Consents
notwithstanding that such Other Construction Consents shall be obtained in
the Purchaser's name. Such primary responsibility shall
include: (a) overall coordination of such Consenting requirements, (b)
preparation of responses to inquiries by Governmental
Instrumentality. The Contractor shall keep the Purchaser
advised of the status of pending applications for Other Construction
Consents and shall promptly notify the Purchaser if the Contractor is
experiencing any delay or difficulty in obtaining any Other Construction
Consent. If the Contractor at any time becomes aware of any
applicable Other Construction Consent that the Purchaser is required or
recommended to obtain, the Contractor shall promptly give notice thereof
to the Purchaser.
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34
|
13.4
|
Contractor's Quality
Assurance
|
The
Contractor shall perform all inspection, expediting and quality surveillance as
are required for performance of the Works in accordance with the
Contract. The Contractor's responsibilities under this Clause 13.4
shall include inspecting and testing all materials and equipment that comprise
or will comprise the Biodiesel Project or that are to be used in performance of
the Works, including the start-up and testing of the Biodiesel
Project. The Contractor shall perform such detailed inspection and
testing of all work in progress at intervals appropriate to the stage of
construction or fabrication as is necessary to ensure that such work is
proceeding in accordance with this Contract and to protect the Purchaser against
defects and deficiencies in such work. On the basis of such
inspections and testing, the Contractor shall keep the Purchaser regularly
informed of the progress and quality of all work and shall provide to the
Purchaser reports of any material deficiencies revealed through such inspections
and tests and of measures proposed by the Contractor to remedy such material
deficiencies. The Purchaser or the Engineer shall have the option, at
the Purchaser's expense, of being present at all such inspections and
tests. The Contractor shall give adequate notice in writing to the
Engineer and the Purchaser whenever any work is ready for inspection and
testing. In the event that the progress and quality of the work is
not proceeding in accordance with this Contract, the Purchaser or the Engineer
shall be entitled to issue instructions to the Contractor or any Subcontractor
for the purpose of remedying such deficiencies, and in case of quality, if the
Contractor fails to do so, the Purchaser may reject any equipment and in that
situation, the Contractor shall make good such rejection either by replacement
or re-execution of such of these works. The Purchaser shall have the
right to re-inspect any equipment though previously inspected / approved at the
Contractor's premises before and after the same are erected at
Site. No test or inspection performed or verified or failed to be
performed or verified by the Purchaser or the Engineer hereunder shall be a
waiver of any of the Contractor's obligations hereunder or be construed as an
approval or acceptance of any of the Works hereunder.
The
Contractor shall when instructed by the Engineer or the Purchaser expose any
part of the Works, open up for inspection any work covered up, or arrange for or
carry out any test of any equipment, materials or goods (whether or not already
incorporated into the Works) or of any executed work which the Engineer or the
Purchaser may in writing require and the cost of such opening up or testing
(together with the cost of reinstating and making good in consequence thereof)
shall be added to the Contract Price unless provided for in this Contract or
unless the inspection or test shows that the equipment, materials, goods or work
are not in accordance with this Contract in which case the Contractor shall bear
the cost described herein.
|
13.5
|
Contractor to Arrange
Storage
|
The
Contractor shall warehouse or otherwise provide appropriate storage (in
accordance with manufacturers' recommendations and the Site conditions) for all
materials, supplies and equipment required for performance of the Works, and
shall provide for the procurement or disposal of, as appropriate, all soil,
gravel and similar materials required for performance of the
Works. All equipment shall be labelled with permanently affixed
durable nameplates, which shall include the manufacturers name, equipment model
number, equipment serial number and appropriate design parameters. In
the event any such equipment is damaged, lost, stolen, destroyed or otherwise
impaired while in storage, the Contractor shall restore or replace such
materials and equipment affected, subject to Clause 43.
|
13.6
|
Contractor to furnish
Performance Bond
|
The
Contractor shall deposit with the Purchaser, the Performance Bond within 20
(twenty) days after the Execution Date. The Performance Bond shall be
furnished by the Contractor, at its own cost, to guarantee the due, faithful and
complete performance of this Contract and the observance by the Contractor of
all stipulations, conditions and obligations on the part of the Contractor
herein contained.
35
The
Performance Bond shall remain valid and effective until Final Performance
Acceptance. Where the validity period of the Performance Bond
delivered to the Purchaser pursuant to this Clause shall expire prior to the
date of Final Performance Acceptance, the Contractor shall renew and/or extend
the validity period of the Performance Bond as and when necessary to ensure that
the Performance Bond remains valid and enforceable until the date of Final
Performance Acceptance.
If the
Performance Bond is not duly furnished by the Contractor to the Purchaser within
20 (twenty) days after the Execution Date, the Purchaser may at its option,
without prejudice to any rights or claims it may have against the Contractor,
within seven (7) days after the expiry of the said 20 (twenty) day period,
terminate this Contract forthwith by notice in writing to the
Contractor. The Purchaser shall thereupon not be liable for any claim
or demand from the Contractor in respect of anything then already done or
furnished or in respect of any other matter whatsoever in connection with this
Contract and the Purchaser shall be entitled to be repaid by the Contractor the
Deposit and all expenses incurred by the Purchaser incidental to the obtaining
of new tenders in respect of the Works.
Should
the Contractor fail to provide the Performance Bond in accordance with any
provisions of this Clause 13.6 or the Performance Bond cease to be in force or
effect at any time prior to Final Performance Acceptance, then, without
prejudice to any other rights the Purchaser may possess, the Purchaser may
deduct sums from any monies due or to become due to the Contractor under this
Contract up to a total sum equivalent to the amount required to be guaranteed by
the Performance Bond. The Purchaser may retain or withhold such sums
until such time that a Performance Bond for the remaining period or requisite
amount is provided or the Performance Bond is no longer required under the
provisions of the Contract.
|
13.7
|
Contractor to Perform
Tests on Completion
|
The
Contractor shall perform, and re-perform if necessary, the Tests on Completion
in accordance with the provisions of the Contract in order to demonstrate
achievement of Final Performance Acceptance and the Performance
Guarantees.
|
13.8
|
Start-up and
Commissioning
|
The Works
shall include the commissioning of components, calibration of controls and
equipment, tuning, start-up and initial operation of the Biodiesel Project and
each portion thereof, all function and verification tests, and all other
commissioning, start-up and initial operation functions pertaining to the
Biodiesel Project, prior to Final Performance Acceptance of the Biodiesel
Project.
|
13.9
|
Contractor's
Obligation to Provide first Fill of
Consumables
|
During
construction, testing and commissioning of the Biodiesel Project, the Contractor
shall arrange and pay for the first fill of all lubricants, chemicals and other
consumables relating to machineries and equipment necessary to enable the
Contractor to perform the Works. The Contractor shall be responsible
for the cost of all spare parts used by the Contractor or any subcontractor
prior to Final Performance Acceptance of the Biodiesel Project provided that the
Purchaser shall purchase at its own cost, not later than Mechanical Completion,
the spare parts as recommended by the Contractor.
36
|
13.10
|
Training
|
At an
appropriate time prior to commissioning and start-up operations, the Contractor
shall at its own costs train the Purchaser's and its designee's personnel in the
operation and maintenance of the Biodiesel Project, including classroom,
on-the-job and safety training. Such training shall be designed to
offer instruction and training to personnel with a reasonable level of
experience in oleochemical plant operations and shall be of such quality so as
to provide the Purchaser's or its designee's operation and maintenance personnel
with a working understanding of operational and maintenance aspects of the
Biodiesel Project. The Contractor shall provide copies of appropriate
manuals and other written or electronic materials as part of the training
program, all of which materials shall be in the English language. All
training personnel of the Contractor shall be fluent in English
language.
Purchaser
and Contractor recognise that certain subcontractors (including Oiltek and
Axens) and suppliers of equipment to the Contractor have offered or may offer
certain training programs as part of their supply to the
Contractor. The Contractor shall arrange to provide access to and
full benefit of such training to the personnel of the Purchaser and provide to
the Purchaser all such training manuals and materials provided by such
subcontractors and/or suppliers. Provided that in relation to the
training for the CTER Section designed by Axens, the training shall be provided
as and to the extent of the training provided in accordance with the
TTA.
|
13.11
|
Access to the
Purchaser and its Designees
|
The
Contractor shall provide the Purchaser and its designees with reasonable access
at the Site and at Contractor's Site office at all times upon reasonable prior
notice and use its best efforts to arrange for Purchaser's (and its designees')
reasonable access to the engineering and fabrication premises of all
Subcontractors, including access to design and construction drawings, sufficient
to allow the Purchaser (or its designees) to inspect work being performed and to
monitor compliance by the Contractor and the Subcontractors with the terms
hereof.
|
13.12
|
Cleanliness
|
The
Contractor shall keep the Site reasonably clean and otherwise free from
accumulation of waste materials, rubbish and other debris resulting from
performance of the Works. The Contractor's labour camp and housing
colony shall be maintained to acceptable local standards of hygiene and shall be
kept reasonably free of debris, litter and malodor. On or before the
last of the Final Performance Acceptance, the Contractor shall remove from the
Site area all petroleum, waste materials, rubbish and other debris, as well as
all tools, construction equipment, machinery and surplus material to which
Purchaser does not hold title, and shall leave the Site area in a neat, clean
and usable condition. The Contractor shall remove, transport and
dispose of any hazardous material transported into the Site by the Contractor or
any Subcontractor, or created, used or handled as part of the Contractor's or
any Subcontractor's construction activities at the Site. The
Contractor shall notify Purchaser immediately upon the discovery of the presence
of any hazardous material on, or the release of hazardous material on or from,
the Site. All cleanup and disposal activities of the Contractor
(including, without limitation, the transportation and disposal of any hazardous
materials taken from the Biodiesel Project Site) shall be conducted in
accordance with all applicable Laws and applicable Consents.
|
13.13
|
Scheduling
|
Within 30
(thirty) days after the Commencement Date, the Contractor shall deliver to
Purchaser a computer based bar chart (the "Detailed Schedule"), supplementing
the Programme as in Appendix 4. The Detailed Schedule shall be
updated monthly or as otherwise directed by the Purchaser, and the Contractor
shall provide such updates to Purchaser with the monthly progress report or as
otherwise required by the Purchaser. The monthly progress reports
together with the Detailed Schedule shall be provided to the Purchaser within 5
(five) days after the end of each calendar month.
37
|
13.14
|
Contractor's
Obligation to Pay Taxes
|
Save for
the taxes to be paid by the Purchaser as defined in Clause 11.11 hereunder, the
Contractor shall pay all applicable taxes on the supplies and services performed
hereunder including all excise duties, concessional sales tax, service tax,
value added tax or state sales tax on construction materials and other taxes and
contributions imposed by any taxing authority upon the works or labour provided
hereunder, as well as taxes measured by the Contractor's receipts including
corporate taxes, personnel taxes, and any withholding taxes on payments to the
Contractor's personnel, subcontractors or agents hereunder. The
Contractor shall furnish to the appropriate taxing authorities all required
information and reports in connection with such taxes, levies and assessments
and, if reasonably requested by Purchaser, promptly furnish copies of all such
information and reports to the Purchaser. The Contractor shall
provide such information in a timely manner as the Purchaser shall require to
compute and pay all duties, taxes, levies and assessments for which the
Purchaser is responsible hereunder.
|
13.15
|
Security Arrangements
by the Contractor
|
The
Contractor shall provide a method, which shall be subject to the reasonable
approval of Purchaser, of checking the employees of the Contractor, its
Subcontractors and the Purchaser's suppliers and contractors in and out of the
areas in which the Works are to be performed hereunder. The
Contractor shall be responsible for the security of the Biodiesel Project and
the Site at all times while the Works are being performed up to the date of
final Taking Over. The Contractor shall coordinate such security with
the Purchaser's obligations pursuant to Clause 11.
|
13.16
|
Protection of
Property
|
The
Contractor shall be responsible to protect any and all parallel, converging and
intersecting electric lines and poles, telephone lines and poles, highways,
bridges, waterways, railroads, sewer lines, drainage ditches, culverts, fences,
walls, and any and all physical property of others from damage as a result of
its performance of the Works. Without limiting the generality of the
foregoing, the Contractor shall maintain the access road to the Site and all
roads within the Site required by the Contractor in good repair.
|
13.17
|
Protection of Property
by Sub-Contractors
|
The
Contractor shall provide, and shall ensure that its Subcontractors provide,
proper and ample protection from damage or loss to the Biodiesel Project, the
Site, materials, construction equipment and tools during its performance of the
Works.
|
13.18
|
Royalties and Licence
Fees
|
The
Contractor shall pay all required royalties and licence fees with respect to
proprietary rights, intellectual property licences, trademarks, and copyrights
and shall procure, as required, the appropriate proprietary rights, intellectual
property licences, trademarks, and copyrights for materials, methods, processes
and systems of the Works. The Contractor shall not incorporate into
the Biodiesel Project any materials, methods, processes or systems that involve
the use of any confidential information, intellectual property or proprietary
rights that the Purchaser does not have the right to use or that may result in
claims or suits against the Purchaser or Contractor arising out of claims of
infringement of any domestic or foreign patent rights, copyrights, trademarks or
other proprietary rights, or applications for any such rights, or use of
confidential information.
38
|
13.19
|
Contractor's Labour
Relations
|
The
Contractor shall be responsible for all labour relations matters relating to the
Works and shall at all times use its best efforts to maintain harmony among the
personnel employed in connection with the Works and shall enter into all
necessary labour contracts with such personnel. The Contractor shall
at all times comply with all applicable employment laws and labour welfare
legislation, and use its best efforts and judgment as an experienced contractor
to respect local customs and practices, and adopt and implement policies and
practices to avoid work stoppages, slowdowns, disputes, strikes and
lockouts.
|
13.20
|
Contractor's
Obligation to Co-operate
|
The
Contractor shall cooperate with the Purchaser and other contractors of the
Purchaser to coordinate Contractor's Works with the work and works of such other
contractors and shall in particular consult, liaise, co-operate and work in
harmony with those responsible for carrying out such other works in connection
with the Works, including the preparation of joint programmes, method
statements, co-ordination drawings and specifications.
|
13.21
|
Contractor's Standards
of Performance
|
Without
limiting any other provision of this Contract,
|
|
(a)
|
The
Contractor shall perform the Works hereunder in accordance with the
standards of professional care, skill, diligence and competence generally
accepted in the refining and Biodiesel industry applicable to engineering
and construction and project management practices, all applicable Laws,
all applicable Consents, Good Manufacturing
Practice;
|
|
|
(b)
|
the
Biodiesel Project shall be constructed and erected in (i) a good
workmanlike manner and (ii) in accordance with the Annexure (b) and (c) to
the Articles of Agreement; and;
|
|
|
(c)
|
The
Contractor shall perform the Works such that the Works are sufficient and
fit for purpose intended, shall meet the Performance Guarantees (or
otherwise, the Minimum Acceptable Performance Criteria) and the use
thereof by the Purchaser shall not cause it to be in violation of rules
and regulations thereunder and that the Works shall be fully operational
and be fit for purpose.
|
|
13.22
|
Contractor to Comply
with Law and Consents
|
The
Contractor shall comply with and shall cause the Biodiesel Project and all
components thereof (including, without limitation, the design, engineering,
construction and operation of the Biodiesel Project) to comply, be capable of
complying, with all applicable Laws and applicable Consents as they may be in
effect from time to time during the Contractor's performance hereunder up to the
date of Final Performance Acceptance of the Biodiesel Project (and thereafter
upon mutual agreement on terms and conditions). The foregoing
obligation being without prejudice to the Contractor's right to a Variation for
any Change in Law or change in Consent.
|
13.23
|
Contractor's Health
and Safety Programme
|
The
Contractor shall implement and administer a safety and health program for the
Biodiesel Project which shall include: (a) development of a project safety
manual establishing the Contractor and its Subcontractor safety guidelines; (b)
conducting periodic safety meetings with its Subcontractors, (c) development,
implementation and enforcement of procedures for advising Subcontractors of, and
correction of, safety violations and deficiencies; and (d) taking of all other
actions necessary to provide a safe work environment in accordance with
applicable Laws and applicable Consents.
39
|
13.24
|
Contractor's Insurance
Obligations
|
The
Contractor shall at its expense take out and maintain in effect, or cause to be
taken out and maintain in effect during the performance of the Contract, the
Contractor's insurances set forth in Clause 47. Provided, however,
that at the option of the Purchaser, to be exercised within 30 (thirty) days of
the Execution Date, the Purchaser may opt for taking out and maintaining in
effect or cause to be taken out or maintain in effect, the Contractor's
insurance along with the Purchaser's insurance and in such an event, the premium
payable for the Contractor's insurance shall be deducted from the Contract Price
by effecting a reduction in Part C Price.
The
Contractor shall extend to the Purchaser the benefit of the insurance cover
under the Professional Indemnity Cover obtained by itself and/or its
subcontractors for engineering and/or design of the Works and that such
Professional Indemnity Cover shall be for a minimum assured amount of the
equivalent of US$ 1 million (United States Dollars One Million
Only).
|
13.25
|
Contractor's
Representations and
Warranties
|
The
Contractor represents and warrants that:
|
13.25.1
|
The
Contractor is a company duly organized, validly existing and in good
standing under the laws of Malaysia and the execution, delivery and
performance of this Contract have been duly authorized by all requisite
corporate action and will not violate any material provision of any
Governmental Instrumentality, rule, regulation, statute or ordinance, or
violate any provision of its charter or bylaws or any indenture, contract
or instrument to which it is a party or by which it or its property may be
bound or affected.
|
|
13.25.2
|
The
Contractor is not in violation of any applicable Law, or any other law,
statute, order, rule or regulation promulgated, or judgment entered by any
national, state or local Governmental Instrumentality that for either an
individual violation or for a number of violations in the aggregate, would
adversely affect its ability to perform its obligations under this
Contract.
|
|
13.25.3
|
The
Contractor is, or will be, the holder of all national, state, local or
other applicable Consents required to conduct its
business.
|
|
13.25.4
|
The
Contractor (a) has examined this Contract thoroughly and has had an
opportunity to review it with legal counsel and become familiar with its
terms; (b) by itself and through its Subcontractors, possesses the full
and proper resources, experience, capabilities and qualifications to
perform the Works including the requisite knowledge of and experience of
the relevant legal, regulatory and labour laws in Malaysia; and (c) has
had the opportunity to inspect the Site and to ascertain the location of
the Works, the availability of facilities, the location and character of
existing or adjacent structures. The Contractor asserts that it
is experienced in the engineering, design, fabrication and construction of
electricity generating facilities similar to the Biodiesel
Project.
|
|
13.25.5
|
The
Contractor has obtained, or has no reason to expect that it will not in
due course and without undue delay (subject to Force Majeure) obtain, all
of the Contractor's Consents and Other Construction
Consents.
|
|
13.25.6
|
The
Contractor further warrants that it will notify the Purchaser if at any
time prior to Final Performance Acceptance any of the foregoing
representations and warranties ceases to be accurate and complete in any
material respect.
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40
|
13.25.7
|
The
Contractor has had the opportunity to consult legal counsel and will
observe the laws of any applicable jurisdiction that may be pertinent to
engineering, design, construction and commissioning and assembly of the
Biodiesel Project.
|
|
14
|
Programme
|
|
14.1
|
Programme
|
Within 1
(one) month of the Execution Date, the Contractor shall submit to the Engineer a
more detailed programme for execution of the Works provided that such detailed
programme shall not have a delay in any Milestone as per the original
Programme. Within 14 (fourteen) days thereafter, such detailed
programme shall be discussed and agreed (after any suitable modifications deemed
necessary) between the Contractor and the Engineer and shall replace the
original programme provided in Appendix 4 and shall be deemed to be the
Programme thereafter.
The
Contractor shall execute the Works in accordance with the order and procedure
set out in and (subject to Clause 33) the dates shown upon the Programme and the
Payment Schedule. The Programmes and the Payment Schedule shall not
be altered or amended without the Purchaser's prior consent, which, shall not be
unreasonably withheld.
The
Contractor shall adhere to the order of procedure and method stated therein
unless the Contractor obtains the written consent of the Engineer to vary such
order or method.
|
14.2
|
Revision of
Programme
|
The
Purchaser will notify the Contractor if the rate of progress of the Works or any
part thereof is too slow to meet the Time for Completion and that the slowdown
in the rate of progress is not due to a circumstance for which the Contractor is
entitled to an extension of time under Clause 33.1.
Following
receipt of such a notice the Contractor shall take such steps as may be
necessary and as the Purchaser may approve to remedy or mitigate the likely
delay, including revision of the Programme and the Payment Schedule and/or
carrying the Works at night or on public holidays. The Contractor
shall not be entitled to any additional payment for taking such
steps.
The
provisions of this Clause 14 shall be without prejudice to Clause
34.
|
14.3
|
Co-operation with
other contractors
|
The
Contractor acknowledges that the Purchaser will have other works, including
works at the Site or adjacent thereto, carried out by other contractors employed
by the Purchaser concurrently with the Works and that it is of paramount
importance that all works thereon are fully and completely coordinated in view
of their concurrent and sequential nature. The Purchaser shall
provide to the Contractor at least 14 (fourteen) days' prior notice of the
commencement of works to be done by other contractors. The Contractor
shall liaise with and cooperate fully with these other contractors for the
construction, commissioning and testing of the Biodiesel Project so as to
facilitate the coordination by the Engineer with such
contractors. The Contractor shall, to the extent the Contractor's
schedule is not adversely impacted, provide to the Engineer for the purpose of
coordinating with the other contractors at least 30 (thirty) days prior notice
of the commencement of commissioning and validation work. The
Contractor shall cooperate fully with the other contractors and the Purchaser in
all such aspects.
41
|
15
|
Design
Documentation
|
|
15.1
|
Design Documentation
Discrepancies
|
Where
there is any ambiguity, discrepancy or conflict within the Contractor's
Proposal, the Contractor shall inform the Engineer in writing of its proposed
amendment to remove the discrepancy and the Engineer shall resolve such
ambiguity, discrepancy or conflict or otherwise may accept the Contractor's
proposed amendment and the Contractor shall be obliged to comply with the
decision or acceptance by the Engineer without any Cost to the Purchaser nor any
delay to the completion of the Works.
|
15.2
|
Design Documentation
for Approval
|
|
|
(a)
|
The
Contractor shall design the Works and prepare the Design Documentation in
accordance with the SON and Contractor's Proposal. The
Contractor shall submit to the Engineer for
approval:
|
|
|
(i)
|
in
good time, such Design Documentation as may be needed for
approval;
|
|
|
(ii)
|
during
the progress of the Works within such reasonable times as the Engineer may
require such drawings of the general arrangement and details of the Works
as may be specified in the Contract or as the Engineer may reasonably
require.
|
|
|
(b)
|
The
Engineer shall signify its approval or disapproval thereof. If
it fails to do so within 10 (ten) Business Days of its receipt thereof (or
such extended period), the Design Documentation shall be deemed to have
been approved unless the Engineer notifies the Purchaser that it will
require additional time to make its decision or comment on the Design
Documentation, in which case, the Engineer shall be entitled to a further
period of 7 (seven) days from the date of such notification to decide and
comment on the Design
Documentation.
|
|
|
(c)
|
Approved
drawings, samples and models shall be signed or otherwise identified by
the Engineer.
|
|
|
(d)
|
Design
Documentation, which the Engineer disapproves shall be modified to comply
with its comments and requirements and re-submitted for its approval
without delay which in any event shall be no later than 7 (seven) days
from the Contractor's receipt of the Engineer's comments and
requirements. The provisions of Clause 15.2(b) shall apply in
relation to the re-submission of such modified Design
Documentation.
|
|
15.3
|
Design Documentation
for Information
|
The
Contractor shall submit to the Engineer for information;
|
|
(a)
|
in
good time such Design Documentation as may be called for information;
and;
|
|
|
(b)
|
such
further Design Documentation as the Purchaser or the Engineer consider
reasonably necessary from time to time to explain or amplify the
Contractor's Proposal;
|
|
15.4
|
Works to be in
Accordance with Approved Design
Documentation
|
The Works
shall be manufactured, constructed, carried out and completed strictly in
accordance with the Design Documentation approved by the Engineer and submitted
for the Engineer's information. The Contractor shall not depart from
such Design Documentation except as provided in Clause 27.
The
Contractor shall assume all liabilities and responsibilities for the design in
respect of the Works, in particular the functional adequacy, compliance with all
relevant statutory and authorities' requirements, structural integrity and
safety and any defect or inadequacy in the design. No:
42
|
|
(i)
|
failure
to notify the Contractor that any of the Design Documentation is not
acceptable;
|
|
|
(ii)
|
examination
or lack of examination of the Design Documentation;
and/or
|
|
|
(iii)
|
comment,
opinion or approval expressed in respect of the Design Documentation or
otherwise in respect of the Works or lack of comment, opinion or approval
in regard thereto,
|
by the
Engineer, the Purchaser or its consultants, shall in any respect relieve or
absolve the Contractor from any obligations or liability under or in connection
with this Contract nor shall the Engineer, the Purchaser or its consultants be
liable to the Contractor in any way for any such failure, examination, comment,
opinion or approval.
|
15.5
|
Inspection of
Drawings
|
The
Engineer shall have the right at all reasonable times to inspect all drawings
and other information relating to any part of the Works.
|
15.6
|
Operating and
Maintenance Manuals and
Instructions
|
In any
event, at least 45 (forty five) days prior to the commencement of commissioning
of any Project Section, the Contractor shall supply for the Engineer's approval
2 (two) paper copies of draft comprehensive operating and maintenance manuals
and/or instructions for the relevant Project Section. These shall be
in such detail as will enable the Purchaser to operate, maintain, dismantle,
reassemble, replace and adjust all parts of the relevant Project
Section. The Contractor shall revise and amend such manuals and
instructions in accordance with any comments thereon by the Engineer (including
comments arising during commissioning) and supply 2 (two) paper copies and 5
(five) CD ROM copies, wherever possible, of such manuals and instructions as so
revised and amended together with two paper prints, and electronic copies of
each final as-built drawing, all prior to the date of Taking Over of the
relevant Project Section by the Purchaser. The Works shall not be
considered to have been completed until such manuals, instructions and drawings
have been supplied to the Purchaser.
|
15.7
|
Copyright
|
All
artistic and literary copyright and design right which may subsist in the Design
Documentation prepared specifically for the Works and title to and copyright in
the Standard Software shall vest in the Contractor. The Contractor
hereby grants to the Purchaser a royalty free non-exclusive, irrevocable licence
to use the said Design Documentation and the Standard Software in the System for
all purposes in relation to the Works including for completing, maintaining,
adjusting, operating and repairing the Works. The Purchaser shall be
entitled to assign the benefit of the licence to use the Design Documentation,
subject to the Contractor's prior consent if such licence is used for any
purpose not relating to the Works and the Contractor shall not unreasonably
withhold such consent. The Purchaser shall be entitled to make such
copies of the Standard Software as it may reasonably require for its its own
internal use solely in connection with the Project without the payment of any
royalty to the Contractor and will ensure that all such copies acknowledge the
Contractor's copyright therein and in the product thereof. The
Purchaser shall take all reasonable measures to safeguard the Contractor's
rights in the Standard Software.
|
15.8
|
Contractor's Use of
Drawings and Information Supplied by Purchaser or
Engineer
|
Drawings
and information supplied by the Purchaser and the Engineer to the Contractor for
the purposes of the Contract shall remain the property of the
Purchaser. They shall not without the consent of the Purchaser be
used, copied or communicated to a third party by the Contractor unless (i) such
distribution is strictly necessary for the purposes of this Contract and (ii)
the Contractor has caused the recipients of such drawings and information to
agree to the confidentiality provisions of this Contract.
43
|
15.9
|
Contractor's
Documentation
|
The
Contractor shall not be required to provide to the Purchaser or the Engineer
shop drawings nor any of the Contractor's confidential manufacturing drawings,
designs or know-how nor the confidential details of manufacturing practices,
processes or operations other than as may be required for purposes of this
Contract, in any arbitration, dispute resolution, court proceedings or by the
Law.
|
16
|
Errors in Drawings,
etc. Supplied by Contractor
|
|
16.1
|
Errors in Drawings,
etc. Supplied by Contractor
|
Notwithstanding
any approval by the Engineer of Design Documentation under Clause 15.2 or any
submission to the Engineer of any Design Documentation under Clause 15.3, the
Contractor shall be responsible for any failure thereof to comply with or
achieve the requirements of the SON for any errors, omissions or discrepancies
therein, and no comments or advice from the Engineer or the Purchaser, or the
lack thereof, (whether under Clause 15.2 or otherwise) in connection with any
such Design Documentation shall in any way relieve the Contractor from any of
its obligations under the Contract.
The
Contractor shall bear any Costs or expense it may incur as a result of delay in
providing such Design Documentation or as a result of such failure thereof and
errors, omissions or discrepancies therein for which the Contractor is
responsible.
The
Contractor shall at its own expense promptly carry out and bear the Cost of any
alterations or remedial work made necessary by such failure thereof and errors,
omissions or discrepancies for which the Contractor is responsible and modify
the Design Documentation accordingly.
|
16.2
|
Exceptions
|
Notwithstanding
the provisions of Clause 16.1, the Contractor shall not be responsible for any
such errors, omissions or discrepancies as referred to therein to the extent
these are due to incorrect drawings, patterns, models or written information
supplied by the Purchaser or the Engineer and according to which the Contractor
is instructed specifically in writing by the Purchaser or the Engineer to design
the Works including the Purchaser's design criteria. The Purchaser
shall at its own expense promptly carry out any alterations or remedial work to
the extent necessitated by such errors, omissions or discrepancies for which it
or the Engineer are responsible or at the Purchaser's option pay the Contractor
the Cost incurred by the Contractor in carrying out in accordance with the
Engineer's instructions any such alterations or remedial work to the extent so
necessitated. Nothing herein shall be construed to affect or relieve
the obligation on the part of the Contractor to advise the Engineer and the
Purchaser of any errors or design or construction impracticabilities arising
from any drawings, patterns, models, information or instructions issued by the
Engineer or the Purchaser.
|
17
|
Contractor's
Representatives
|
|
17.1
|
Contractor's
Representatives
|
Without
prejudice to Clause 13 the Contractor shall employ one or more competent
representatives whose name or names shall have been notified previously to the
Purchaser by the Contractor, to superintend the carrying out of the Works on the
Site. The said representatives shall be present on the Site during
working hours, and any written orders or instructions, which, the Purchaser may
give to any one of the said representatives shall be deemed to have been given
to the Contractor. The said representatives (together with such other
representatives of the Contractor as the Purchaser may require) shall attend all
meetings with the Purchaser and/or the Engineer at times and frequency
reasonably specified by the Purchaser. The Contractor shall not
replace such representative without the prior written consent of the
Purchaser.
44
|
17.2
|
Objection to
Representatives
|
The
Purchaser shall be entitled by notice to the Contractor to object to any
representative or person employed by the Contractor in the execution of or
otherwise about the Works who shall, in the reasonable opinion of the Purchaser,
misconduct himself or be incompetent or negligent, and the Contractor shall
forthwith remove such person from the Works and replace him within a reasonable
time, at its own cost, with a suitably qualified person.
|
17.3
|
Returns of
Labour
|
The
Contractor shall, if required by the Purchaser, send to the Purchaser a detailed
return of the supervisory staff and the numbers of labour in the categories from
time to time employed by the Contractor and its subcontractors upon the
Site. The returns shall be provided in such form and with such
frequency as the Purchaser may reasonably require.
|
18
|
Site Services and
Clearance
|
|
18.1
|
Fencing, Guarding,
Lighting and Watching
|
The
Contractor shall, subject to Clause 11, be responsible for proper fencing,
guarding, security, lighting and watching of all the Works on the Site until the
date referred to in the relevant Taking Over Certificate and for the proper
provision of temporary roadways, footways, guards and fences as far as may be
necessary for the Works on the Site and for the accommodation and protection of
the Purchasers and occupiers of adjacent property, the public and
others.
|
18.2
|
Not
Used
|
|
18.3
|
Clearance of
Site
|
From time
to time during the progress of the Works except for any pre-existing materials
or materials brought on to the Site by the Purchaser or its other contractors,
the Contractor shall clear away and remove from the Site all surplus materials
and rubbish and, on completion, all Contractor's Equipment. The
Contractor shall at all times leave the Site and the Works clean and in a safe
and workmanlike condition to the Engineer's reasonable
satisfaction.
|
18.4
|
Opportunities for
Other Contractors
|
|
18.4.1
|
The
Contractor shall at no cost to the Purchaser (in accordance with the
Purchaser's requirements) afford all reasonable opportunities, facilities,
access, attendance upon and/or services to any public or private
utilities, statutory authorities, any other contractors employed by the
Purchaser and to the workmen of the Purchaser who may be employed in the
execution on or near the Site of any work not included in the Contract or
of any contract which the Purchaser may enter into in connection with or
ancillary to the Works.
|
|
18.4.2
|
The
Contractor shall be deemed to have made adequate allowance in the Contract
Price for its obligations to co-ordinate and co-operate as described in
Clause 13.20 and 14.3 and for any interference with the progress of the
Works caused by the concurrent and sequential work by the Purchaser and/or
others and for all costs and expenses arising in relation to provision of
such facilities, access, attendance and/or
services.
|
45
|
18.4.3
|
The
Contractor may at its sole discretion, on the written request of the
Purchaser make available to any such other contractor or to the Purchaser
any Contractor's Equipment or provide any other service of whatsoever
nature to the extent that the Programme is not adversely affected, and
subject to the provisions of Clause 18.4.4, the Purchaser shall pay to the
Contractor in respect of such use or service such sum or sums as shall be
agreed.
|
|
18.4.4
|
If
the Contractor considers that it has been requested or instructed to act
in a manner which goes beyond its obligations as referred to in this
Clause and if the Contractor considers that compliance with such request
or instruction may entitle him to an extension of time and/or any Costs,
it shall be a condition precedent to such entitlement that the Contractor
shall have notified the Engineer in writing prior to taking any such
action that it considers such an entitlement may arise from the provision
of such facilities, access, attendance and/or services, giving full
particulars of the nature, extent and estimated duration of the delays
and/or Costs which would be incurred, and that following receipt of such
notice, the Engineer shall have instructed the Contractor in writing to
take such action.
|
|
19
|
Not
Used
|
|
20
|
Safety
|
The
Contractor shall be responsible for the adequacy, security, stability and safety
of its operations on the Site and shall comply with any Law and the Purchaser's
safety regulations applicable at the Site unless specifically authorised by the
Engineer to depart therefrom in any particular circumstances.
|
21
|
Extraordinary
Traffic
|
|
21.1
|
Prevention of Damage
Caused by Traffic
|
The
Contractor shall use every reasonable means to prevent damage to any of the
public roads, including but not limited to private roads, or bridges, culverts,
drains and overpasses, on the routes to the Site by any traffic of the
Contractor or any of its sub-contractors.
|
21.2
|
Protection of Highways
and Bridges
|
The
Contractor shall at its own cost take all necessary steps to protect or
strengthen any public roads, including but not limited to private roads,
bridges, culverts, drains and overpasses, on, along or over which the Contractor
intends to move any load of the Works or of Contractor's Equipment so as to
prevent damage thereto.
|
21.3
|
Claims
|
The
Contractor shall indemnify the Purchaser against any claim in respect of damage
or injury to public roads and private roads including but not limited to
bridges, culverts, drains and overpasses, arising out of the execution of the
Works and in respect of all proceedings, damages, Costs, charges and expenses in
relation thereto.
|
21.4
|
Waterborne
Transport
|
If the
Contractor uses waterborne transport the foregoing provisions of the Clause 21
shall be construed as though the word "public road" included a lock, dock, sea
wall or other structure relating to a waterway.
46
|
22
|
Setting
Out
|
|
22.1
|
Setting
Out
|
The
Contractor shall be responsible for the true and accurate setting out of the
Works. If at any time during the execution of the Works any error
appears in the positions, levels, dimensions or alignment of the Works, the
Contractor shall rectify the error at its own cost. The checking of
any setting out or of any line or level by the Engineer or any assistance
rendered by the Engineer in this regard shall not relieve the Contractor of its
responsibility under this Clause.
|
22.2
|
Benchmarks
etc.
|
The
Contractor shall protect and preserve bench marks, sight rails, pegs and other
things used in setting out the Works.
|
23
|
Inspection and Testing
of Plant
|
|
23.1
|
Inspection and Testing
of Plant before delivery
|
The
Engineer shall be entitled, with or without the presence of the Purchaser, at
all reasonable times during manufacture to inspect, witness the test and examine
on the Site or on the Contractor's premises the materials and workmanship and
performances of all Plant to be supplied under the Contract. If part
of the Plant is being manufactured on other premises the Contractor shall obtain
for the Purchaser and the Engineer permission to inspect, witness the test and
examine as if the Plant were being manufactured on the Contractor's
premises. Such inspection, witnessing the test and examination shall
not relieve the Contractor from any of its obligations under the
Contract. The Purchaser, Engineer and their representatives'
attendance at any inspection shall be at their own cost.
|
23.2
|
Dates of Tests and
Inspections
|
Within 1
(one) month after the Commencement Date, the Contractor shall submit to the
Engineer inspection plan and procedures, and the Parties shall agree to the plan
including witness points. The Contractor shall notify the Engineer
(with a copy to the Purchaser) 3 (three) days prior to and agree with the
Engineer the date on and the place at which any part of the Plant will be ready
for testing or inspection in accordance with the agreed inspection
plan. The Engineer shall give the Contractor at least 24
(twenty-four) hours' notice of its intention to attend the test or
inspection. If the Engineer shall not attend at the place and on the
date agreed, the Contractor may proceed with the test or inspection which shall
be deemed to have been made in the Engineer's presence. The
Contractor shall forthwith forward to the Engineer duly certified copies of the
results of such tests or inspections. The Engineer shall be the
responsible for co-ordinating the attendance of the Purchaser at the agreed
witness points.
|
23.3
|
Services for Tests and
Inspections
|
Where the
Contract provides for tests or inspection on the premises of the Contractor or
of any sub-contractor or on any other premises, the Contractor shall provide
free of charge such assistance, labour, materials, electricity, fuel, stores,
apparatus and instruments as may be requisite and as may reasonably be demanded
to carry out such test or inspection.
|
23.4
|
Failure on Tests or
Inspections
|
If after
inspecting, examining or testing any Plant part, the Engineer, as may be
reasonable in all the circumstances, shall decide that such Plant part is
defective or not in accordance with the Contract, it may reject the said Plant
part by giving to the Contractor within reasonable period after such inspection
notice of such rejection, stating therein the grounds upon which the said
rejection is based. Following any such rejection the Contractor shall
make good or otherwise repair or replace the rejected Plant part and resubmit
the same for test or inspection in accordance with this Clause
23. The Costs incurred by the Contractor in repairing or replacing
the defective Plant part (and re-submitting the same for test or inspection)
shall be borne by the Contractor and the Cost to the Purchaser or the Engineer
in attending such re-testing or inspection in excess of three re-tests /
inspections shall be recovered from the Contractor as a debt payable to the
Purchaser on demand or shall be deducted from the Contract
Price.
47
|
23.5
|
Effect on Contractor's
Obligations
|
No
inspection, examination or testing by the Purchaser or the Engineer of any Plant
part, or the rejection and re-testing of the same as referred to in this Clause
23 shall in any way relieve the Contractor of any of its obligations under the
Contract.
|
24
|
Delivery
|
The
Contractor shall notify the Engineer of its intention to deliver any Plant part
or Contractor's Equipment to the Site. All equipment and materials
furnished under the Contract and arriving at the Site shall be promptly
received, unloaded, transported and stored in the storage space by the
Contractor. The Contractor shall be responsible for examining all
shipments and deliveries, and notifying the Engineer immediately of any damage,
discrepancy, shortages, etc. for the Engineer's information
only. However, the Contractor shall be responsible for any shortages
or damages in transit, handling and/or in storage and erection of equipment and
materials at the Site. Any demurrage, wharfage and other such charges
claimed by the transporters for reasons not attributable to the Purchaser
pursuant to its obligations under Clause 11 shall be to the account of the
Contractor.
|
25
|
Suspension of Works,
Delivery or Erection
|
|
25.1
|
Instructions to
Suspend
|
The
Purchaser may at any time instruct the Contractor to suspend the progress of the
Works. The Contractor shall during any such suspension store,
preserve, protect and otherwise secure the Works and/or Plant affected and
insure the same to the extent required by the Purchaser. Unless
otherwise instructed by the Purchaser, the Contractor shall during any such
suspension affecting the progress of the Works on the Site maintain its staff,
labour and the Contractor's Equipment on or near the Site ready to proceed with
the Works upon receipt of the Purchaser's further instructions. The
Contractor shall not be entitled to recover any such additional Cost unless
within 28 (twenty-eight) days after receipt of the order to suspend progress of
the Works, the Contractor gives to the Purchaser notice in writing of its
intention to make such claim.
|
25.2
|
Contractor's
Expenses
|
Subject
to Clause 25.4, the additional Cost incurred by the Contractor in complying with
the provisions of and the Purchaser's instructions under Clause 25.1
(Instructions to Suspend) shall be assessed by the Engineer, as may be
reasonable in all the circumstances, and added to the Contract
Price. The Contractor shall minimize such additional
Cost.
|
25.3
|
Expense Incurred due
to Suspension
|
The
Contractor shall be entitled to payment for any part of the Works, which or the
delivery of which at the Normal Delivery Date (as defined below) has been
suspended for more than 14 (fourteen) days as a result of the Purchaser giving
instructions under Clause 25.1, and the Contract Value of such Works as at the
date of suspension shall be included in an interim certificate of
payment. Normal Delivery Date means the time for delivery of the
relevant Plant specified in the Programme, or if no time is specified, at the
time appropriate for it to be delivered having regard to the Time of
Completion. The Contractor shall not be entitled to a certificate of
payment until it has sufficiently marked such Works as the Purchaser's property
under Clause 37.3 and has insured it in accordance with Clause 47.1 as if the
Plant were on Site.
48
|
25.4
|
Default by
Contractor
|
The
Contractor shall have no entitlement under Clauses 25.2 and 25.3 if suspension
is necessary:
|
|
(i)
|
by
reason of default on the part of the Contractor;
or
|
|
|
(ii)
|
otherwise
for the proper execution or the safety of the Works, except to the extent
such necessity results from any act or default of the Engineer or the
Purchaser or the occurrence of any of the Purchaser's Risks, as such term
is defined in Clause 45 hereof.
|
|
25.5
|
Resumption of Work,
Delivery or Erection
|
At any
time following a suspension under Clause 25.1 the Purchaser may give notice to
the Contractor to proceed with the Works, which are the subject of a
suspension. Not later than 30 (thirty) days after the receipt of such
notice to resume the suspended part of the Works, the Contractor shall submit a
Request for Variation to the Purchaser its request for additional Cost due to
such suspension in accordance with Clause 27 and its request for extension of
Time for Completion in accordance with Clause 33. The extension of
Time for Completion shall also take into account a reasonable period for
resumption.
If any
such suspension continues for more than 14 (fourteen) days and the suspension is
not necessitated by the reasons stated in Clause 25.4 the Contractor may by
notice to the Purchaser elect to treat the suspension as a Variation instructed
by the Purchaser under Clause 27 of the part affected thereby. Upon
such notice to the Purchaser by the Contractor, the risk of loss or damage to
the suspended portion of the Works shall pass to the Purchaser. If
any suspension affects the whole of the Works and continues for 180 (one hundred
eighty)days, the Contractor may terminate the Contract in which event it shall
be entitled to be paid in accordance with Clause 46.3.1(b). The
Purchaser shall reserve the right to elect at its discretion to treat the
suspension as a Variation of part of the Works or to terminate the
Contract.
Upon
receipt of notice to proceed, the Contractor shall examine the Works affected by
the suspension. The Contractor shall make good any deterioration or
defect in or loss of the Works that may have occurred during
suspension. The Cost incurred by the Contractor in making such
examination and of making good and resuming work shall be assessed by the
Engineer and added to the Contract Price unless the suspension was necessitated
by any of the reasons stated in Clause 25.4, in which event such Cost shall be
borne by the Contractor. The Contractor shall not be entitled to be
paid any Cost incurred in making good any deterioration, defect or loss caused
by defective materials or workmanship of or by the Contractor's failure to
comply with any instructions of the Purchaser under Clause 25.1 (Instructions to
Suspend).
|
26
|
Defects Before Taking
Over
|
Without
prejudice to any of the Contractor's obligations under the Contract or to Clause
23, if, in respect of any part of the Works not the subject of a Taking Over
Certificate, the Engineer shall at any time:
|
|
(a)
|
decide
that any work done or Plant, and or part thereof supplied or materials
used by the Contractor or its sub-contractors is or are defective or not
in accordance with the Contract, or that such part is defective or does
not fulfil the requirements of the Contract (all such matters being
hereinafter in this Clause called "defects");
and
|
49
|
|
(b)
|
as
soon as reasonably practicable notify the Contractor of the said decision,
specifying particulars of the defects alleged and of where the same are
alleged to exist or to have
occurred;
|
the
Purchaser shall so far as may be necessary place the Plant, and or part thereof
at the Contractor's disposal and the Contractor shall with all speed and at its
own expense, make good the defects so specified within 14 (fourteen) days from
date of receipt by the Contractor of the notification thereof. If the
Contractor fails so to do within of the requisite period, the Purchaser may,
take such steps as may in all the circumstances be reasonable to make good such
defects and the Cost to the Purchaser of such steps shall be borne by the
Contractor and paid on demand or deducted from the Contract
Price. All Plant and or part thereof provided by the Purchaser to
replace the defective Plant, and or part thereof shall so far as is practicable
comply with the Contract. The Contractor shall, where practicable, be
entitled at its own expense to remove and retain all Plant and or part thereof
that the Purchaser may have replaced. Nothing contained in this
Clause shall affect the right of the Purchaser to liquidated damages under
Clause 28 and 34 or any other right or remedy which may be available under the
Contract.
|
27
|
Variations
|
|
27.1
|
Variations: Meaning of
Variations
|
The
Purchaser may, from time to time and at any time, request
changes. Changes requested by the Purchaser may include (but need not
be limited to) adding, deleting or modifying relevant portions of the Contract,
the Works, the Plant, the Programme, the Payment Schedule, or the method of
performing the Works, including suspending, accelerating or terminating the
Works or portions thereof. Any request by the Purchaser for a change
shall be in writing and shall be sufficiently definite and detailed to give the
Contractor an adequate basis on which to prepare a Preliminary Variation
pursuant to Clause 27.2.
The
Contractor may from time to time and at any time suggest a change to the
Purchaser. Any such suggestion shall be made in writing and shall
include the reason for the request and such associated information and data
(including drawings, plans, charts, specifications, patterns, samples or
calculations) as may reasonably be required to support the suggested
change. Upon review of such suggestion the Purchaser may, at its sole
discretion and without any obligation or liability to the Contractor, either
reject such change or request the Contractor to prepare a Preliminary Variation
in accordance with Clause 27.2 with respect to all or a portion of such
change. In addition, if the Contractor reasonably believes that an
instruction received from the Purchaser or the Engineer constitutes a change in
the scope of the Works, then within 14 (fourteen) days from date of receipt of
such instruction, the Contractor shall deliver to the Purchaser a request for
change ("Request for Variation"). The Purchaser shall within 14
(fourteen) days of receipt of such Request for Variation (i) request the
Contractor to prepare a Preliminary Variation in accordance with Clause 27.2 or
(ii) deny the Contractor's Request for Variation or (iii) withdraw such
instruction. If the Purchaser denies the Contractor's Request for
Variation or if the Purchaser fails to respond within 14 (fourteen) days, either
the Contractor or the Purchaser may commence procedures under Clause 50, subject
always to Clause 27.4. However the Parties also agree that the
Contractor shall be entitled to a Variation if the need for such a Variation is
due to any the Purchaser caused delay.
|
27.2
|
Purchaser's
Instructions to Vary
|
Upon
receipt of the Purchaser's request for a change or for a Preliminary Variation,
the Contractor shall prepare a Preliminary Variation and furnish it to the
Purchaser within 14 days or any other period agreed by both Parties following
receipt of the Purchaser's request. If the Contractor has objections
or reservations, or is of the opinion that any such change is likely to prevent
or prejudice the Contractor from fulfilling any of its obligations under the
Contract, it shall notify the Purchaser thereof at the time of its furnishing of
the Preliminary Variation. The Contractor also shall notify the
Purchaser if, in the Contractor's opinion, the change will involve an addition
to or deduction from the Contract Price, or any extension of the Time for
Completion and if so, give its quotation of the amount thereof and/or estimate
of the length of extension of time.
50
The
Contractor may also suggest minor changes, which do not affect the Contract
Price, the Programme, performance of the Plant, or operational efficiency or
maintenance and repair costs of the Plant. Such changes are effective
only upon written approval by the Purchaser that is clearly designated "Approval
of Minor Change". The Purchaser shall not unreasonably withhold its
approval of such minor changes.
|
27.3
|
Valuation of
Variations
|
Before
either Party acts on a Preliminary Variation, the Parties shall have executed a
written Variation (which may be the Preliminary Variation signed by both
Parties) incorporating the changes in question and providing for any change in
any Milestones, any change in the Programme or other dates for completion or
delivery, any increase or reduction in the Contract Price and any change in the
scope of work, the Contractor's standards of performance or warranties, the
technical soundness of the Works or other provisions of the
Contract. Any adjustment of the Contract Price shall take into
account, among other things, any elimination or avoidance of work to be
performed resulting from the changes in the scope of work and from assistance
given by the Purchaser. Each Variation shall, if appropriate, also
include any necessary consequential changes to the Payment Schedule in order to
allocate such change equitably over the remaining instalments for payment of the
Contract Price. Execution of a Variation shall indicate each Party's
full, final and unconditional agreement with the matters prescribed in such
Variation.
|
27.4
|
Disputed
Variations
|
If the
Purchaser and the Contractor fail to agree on a proposed change, or on whether
an action requested by the Purchaser is within the scope of work or should be
the subject of a Variation, or on the effects of a change upon the Contract
Price, the Programme or any of the other matters referred to in Clause 27.3 and
the requesting Party does not withdraw its request, the Purchaser may
nevertheless require the Contractor to perform any change requested by the
Purchaser pending resolution of the dispute by delivering to the Contractor a
Variation signed by the Purchaser and agreeing to pay any undisputed amounts of
the Contract Price in connection therewith, unless the aggregate adjustment of
the Contract Price in dispute with respect to such change and all other prior
changes to the extent then in dispute would exceed Malaysian Ringgit 500,000
(Five Hundred Thousand Only) in the aggregate in which event the Contractor
shall be obliged to proceed with the performance of the disputed obligations
only after the resolution of the dispute or may direct the Contractor to perform
such other action pending resolution of the dispute. The Contractor's
performance of the change or other action as so directed shall not prejudice
either Party's position regarding the effects of such change or other
action. Where the Contractor is instructed to proceed with a
Variation pending resolution of the dispute, the Contractor shall keep
contemporary records of the Cost of making the changes and of time expended
thereon. Such records shall be open to inspection by the Purchaser at
all reasonable times.
|
27.5
|
Exceptions
|
In
addition to minor changes under Clause 27.2 (but without limiting Clause 27.6),
the following shall not be considered under any circumstances as changes, or of
themselves be considered the basis for any adjustment of the Contract
Price:
51
|
|
(a)
|
any
escalation in the cost of the Works or material or Contractor's Equipment
or labour;
|
|
|
(b)
|
escalation
in the cost of labour or other increase in manpower hourly
rates;
|
|
|
(c)
|
currency
fluctuations in respect of costs included within the Contract
Price;
|
|
|
(d)
|
any
costs incurred by the Contractor in providing design, engineering,
procurement, construction, startup, testing and commissioning services and
all Plant and materials (and components thereof) and Contractor's
Equipment, and any other additional items not specifically described in
the Contract if (i) it reasonably may be inferred in accordance with the
Contract and the standards employed by leading international contractors
in the Biodiesel plant construction industry (including without limitation
considerations and factors specific to the location and size of the Plant)
that the providing of such additional items was intended as part of the
scope of work or (ii) the providing of such additional items is necessary
in order for the Contractor to satisfy its obligations under the Contract;
and
|
|
|
(e)
|
any
additional costs incurred by the Contractor by reason of any instruction
which has arisen due to or is necessitated by and/or any changes intended
to cure any default of and/or breach of Contract by the
Contractor.
|
|
27.6
|
Notice and
Confirmation of Variations
|
Notwithstanding
any other provision to the contrary set forth in this Contract, the Contractor
shall not be entitled to any adjustments in the Contract Price unless each such
adjustment shall have been approved pursuant to a Variation under this Clause
27. Should any circumstance arise under this Contract providing the
Contractor with an express right to adjust or request adjustment of the Contract
Price, the Contractor shall request a Variation in accordance with this
Clause. The Contractor shall not be entitled to a Variation in
respect of any event or circumstance to which the provisions of this Clause
apply unless it shall have complied strictly with the terms hereof, and in
default of strict compliance, the Contractor shall be deemed to have waived all
rights, claims and damages to which it might otherwise have become entitled
pursuant to the Conditions or as a result of any breach of duty by the Purchaser
or the Engineer. For the avoidance of doubt, the provision of the
Request for Variation and Preliminary Variation by the Contractor within the
respective periods required under this Clause shall be a condition precedent to
the Contractor's entitlement to Variation.
|
27.7
|
Form of Variation
Order
|
The
Variation order shall be in the form set out at Appendix 17.
|
28
|
Tests on
Completion
|
Subsequent
to the achievement of Mechanical Completion, the Contractor shall carry out the
Tests on Completion in accordance with the procedures and standards agreed
between the Contractor and the Engineer within 1 (one) month of the Commencement
Date and which are commonly used in the Biodiesel and oleochemicals
industry.
Notwithstanding
anything else stated herein to the contrary, Tests on Completion may be repeated
up to a period of 30 (thirty) days from the date of the first Tests on
Completion and that any tests conducted after the first three Tests on
Completion shall be at the cost of the Contractor.
52
|
28.1
|
Notice of Tests on
Completion
|
Beginning
21 (twenty one) days prior to the scheduled test date as per the Programme or 21
(twenty one) days prior to scheduled date of Mechanical Completion, the Parties
shall consult regularly regarding the scheduled test date. During
this period the Contractor may reschedule the scheduled test date, to a date not
later than two (2) weeks after the original scheduled test date, upon 7 (seven)
days' prior notice to the Purchaser and the Engineer and the consultation
between the Parties shall continue for these 2 (two) weeks.
Any
rescheduling of the scheduled test date, to a date after the period set forth in
the preceding paragraph shall require two (2) weeks prior notice from the
Contractor and shall be subject to the prior agreement of the Purchaser and the
Engineer. All provisions set forth herein in the preceding paragraphs
shall apply to any rescheduling of the scheduled test
date. Consistent with these provisions, the Purchaser shall confirm
the rescheduling of the scheduled test date, for co-ordination.
A test
report shall be prepared and submitted to the Purchaser and the Engineer by the
Contractor promptly after completion of each Test on Completion but no later
than 7 (seven) days after receipt of the feedstock analysis. The
report shall include data as recorded and adjusted to the design conditions
stipulated for the Performance Guarantees as specified in Appendix
7.
|
28.2
|
Delayed Tests on
Completion
|
If the
Tests on Completion are not carried out by the Contractor on the scheduled test
dates or such other test dates as rescheduled in accordance with Clause 28.1,
the Engineer may, by notice, call upon the Contractor to carry them out within
21 (twenty one) days from the receipt of the said notice. The
Contractor shall thereupon carry out the Tests on Completion within such period
upon 7 (seven) days prior notice to the Engineer and the
Purchaser. If the Contractor fails to carry out the Tests on
Completion within the aforesaid period, the Engineer and the Contractor shall
consult and agree, within 7(seven) days after the expiry of such period on an
alternative date for the carrying out of the Tests on Completion.
|
28.3
|
Repetition of Tests on
Completion
|
Subject
to Clause 28.9, if any part of the Works fails to pass the Tests on Completion
after the first three Tests on Completion, the Tests on Completion shall be
repeated by the Contractor at its own costs within such reasonable time as shall
be specified by the Engineer upon the same terms and conditions.
|
28.4
|
Not
Used
|
|
28.5
|
Not
Used
|
|
28.6
|
Operation
Responsibilities
|
The
Biodiesel Project shall be operated by the Contractor during the carrying out of
the Tests on Completion in conjunction with the personnel of the Purchaser and
the Contractor shall be entirely responsible for such operation.
|
28.7
|
Determination of
Results of Tests
|
The
results of Tests on Completion (including any repetition thereof) shall be
determined and interpreted in accordance with applicable ASTM/ACOS or other
relevant standards and so agreed pursuant to Clause 28 above.
|
28.8
|
Contractor's
Bonus
|
If the
Contractor completes the Tests on Completion earlier than the Time for
Completion, the results of which are acceptable and to the satisfaction of the
Purchaser, and
the Final Performance Acceptance is achieved in full, the Purchaser shall make a
payment to the Contractor, of which amount is calculated at the rate as stated
in Appendix 2 as the Bonus.
53
|
28.9
|
Consequences of
Failure to Achieve Minimum Acceptable Performance
Criteria
|
If the
performance of the Works, based on results of the Tests on Completion, fail to
achieve the Minimum Acceptable Performance Criteria by the Time for Completion
or such other date as may be agreed to by the Purchaser, then the Purchaser, at
its discretion, shall be entitled to:
|
|
(i)
|
order
further repetition of the Tests on Completion at the Contractor's costs;
or
|
|
|
(ii)
|
accept
and take over the Plant subject to such reduction in the Contract Price as
may be fair and reasonable having regard to the diminution in value of the
Plant to Purchaser by reason by its non-achievement of the Minimum
Acceptable Performance Criteria; or
|
|
|
(iii)
|
require
the Contractor to make such adjustments or modifications, , at the
Contractor's costs, as the Contractor may deem necessary to meet the
Minimum Acceptable Performance Criteria within a period of time as may be
specified by the Purchaser at the Purchaser's sole
discretion.
|
|
29
|
Taking
Over
|
|
29.1
|
Taking Over or Final
Performance Acceptance
|
"Final
Performance Acceptance" or "Taking Over" shall be achieved hereunder when each
of the following criteria is satisfied:
|
|
(a)
|
the
Contractor has concluded all Tests on Completion and the results of which
demonstrate the achievement of the Performance Guarantees; or where the
results thereof indicate that the performance of the Works falls short of
the Performance Guarantees but satisfies the Minimum Acceptable
Performance Criteria;
|
|
|
(b)
|
the
complete performance by the Contractor of the Works on the Biodiesel
Project under this Contract, except for any remaining obligations, and all
portions of the Biodiesel Project can be safely placed in operation
immediately for their intended purposes of the production of Biodiesel,
Glycerine and Pretreated Feedstock in accordance with all applicable Laws
and applicable Consents;
|
|
|
(c)
|
all
portions of the Project, have been completed and can be safely placed in
operation immediately for their intended purposes in accordance with
applicable Laws and applicable
Consents;
|
|
|
(d)
|
the
Project has been demonstrated to be capable of delivering Biodiesel,
Pretreated Feedstock and Glycerine, as the case may be, continuously at
the minimum levels specified in Minimum Acceptable Performance
Criteria;
|
|
|
(e)
|
the
Contractor has given to the Purchaser an undertaking to complete any
outstanding work or make good any defective works listed on the punch list
as agreed to between the Parties;
and
|
|
|
(f)
|
all
documents, manuals and handbooks (including those referred to in Clause
13.10, 15.6 and 53.9) required to be provided by the Contractor under the
Contract have been completed and delivered to the
Purchaser.
|
54
|
29.2
|
Notice of Taking Over
and Issue of Taking Over
Certificate
|
When the
Contractor believes that it has achieved Final Performance Acceptance of the
Project, it shall deliver to the Engineer a notice thereof (the "Notice of Final
Performance Acceptance"). The Notice of Final Performance Acceptance
shall contain a report, in the form previously agreed by the Contractor and the
Engineer, of results of the completed Tests on Completion and the services
completed with sufficient detail to enable the Engineer to determine whether
Final Performance Acceptance of the Project has been achieved. The
Engineer shall, within 3 (three) days following receipt of the Notice of Final
Performance Acceptance, inspect the Project, and all services completed by the
Contractor, review the results of the completed Test on Completion and the
report submitted by the Contractor and either (a) issue to the Contractor the
Final Performance Certificate (also called as the "Taking Over Certificate")
counter signed by the Purchaser or (b) if reasonable cause exists for doing so,
notify the Contractor that Final Performance Acceptance has not been achieved,
stating the reasons therefor. In the event the Engineer determines
that the Final Performance Acceptance has not been achieved, the Contractor
shall promptly perform such services as is needed to achieve the Final
Performance Acceptance and shall issue to the Engineer another Notice of Final
Performance Acceptance pursuant to the provisions hereof. Such
procedure shall be repeated as necessary until Final Performance Acceptance has
been achieved. The Engineer shall in the Taking Over Certificate
certify the date of achievement of Final Performance Acceptance. It
is expressly agreed by the Parties that under this Contract if the Engineer
agrees that Final Performance Acceptance has been achieved, then the date of
achievement or occurrence of Final Performance Acceptance shall be the date on
which conditions under item (a), (b), (c), (d) and (f) of Clause 29.1 have been
satisfied. If the Engineer shall not have notified the Contractor
within the time periods set forth above that the Final Performance Acceptance
has not been achieved, then the Final Performance Acceptance shall be deemed to
have occurred as of the date on which the conditions under item (a), (b), (c),
(d) and (f) of Clause 29.1 have been satisfied. The Purchaser shall,
on countersigning the Taking Over Certificate be deemed to have taken over the
Project on the date mentioned in the Taking Over Certificate. Except
as permitted by Clause 30, the Purchaser shall not use the Works before they are
taken over. Notwithstanding the foregoing, if the Purchaser shall at
any time take over and operate the Plant or any part there of, prior to Final
Performance Acceptance, then the Purchaser shall be deemed to have elected to
declare Final Performance Acceptance of the Plant of such part thereof, and to
have assumed care, custody and control, and risk of loss and damage, of the
Plant or such part thereof shall pass to the Purchaser effective as of the date
the Purchaser shall have taken over and operated the Plant or such part
thereof.
|
29.3
|
Effect of Taking
Over
|
Upon the
date referred to in the Taking Over Certificate, the Purchaser shall be deemed
to have taken over the relevant part of the Works and shall take possession of
the relevant part of the Works and the risk of loss or damage to the relevant
part of the Works shall pass to the Purchaser (other than any parts thereof
excluded by the terms of the Taking Over Certificate and the parts for that
period on which the Contractor works thereafter).
|
29.4
|
Outstanding
Work
|
The
Contractor shall rectify or complete to the reasonable satisfaction of the
Engineer within the time stated in the Taking Over Certificate any outstanding
items of work or Plant noted as requiring rectification or as
incomplete. If the Contractor fails to do so within the requisite
time, the Purchaser may arrange for the outstanding work to be done by others
and the Cost thereof (together with a reasonable profit payable to the
replacement contractor) shall be deducted from the Contract Price or paid to·
the Purchaser by the Contractor forthwith on demand.
|
29.5
|
Not
Used
|
55
|
29.6
|
Products produced -
Purchaser Possession
|
The
Biodiesel and Glycerine produced by the Plant and all revenues derived therefrom
at any time during the term of the Contract shall be solely for the benefit of
the Purchaser.
|
29.7
|
Not
Used
|
|
29.8
|
Retention
Bond
|
The
Contractor shall deposit with the Purchaser, not later than the date of
achievement of the Final Performance Acceptance and in any case prior to the
expiry of the Performance Bond, the Retention Bond which shall be furnished by
the Contractor, at its own cost, to guarantee the due, faithful and complete
performance of its obligations under this Contract during the Defects Liability
Period.
Notwithstanding
any extension of the Defects Liability Period as stated elsewhere in this
Contract, the Retention Bond shall remain valid and effective for the full sum
of 5% (five per cent) of the Contract Price from the date of the last Final
Performance Acceptance until the issuance of the Defects Liability Certificate
("Expiry Date"), provided that in the event of any extension of the Defects
Liability Period beyond 12 (twelve) months from the date of last Final
Performance Acceptance, the value of the Retention Bond during such extended
period shall be reduced to take into account the value of the defective Works
which have been replaced or repaired by the Contractor in accordance with Clause
36. Where the validity period of the Retention Bond delivered to the
Purchaser pursuant to this Clause shall expire prior to the Expiry Date, the
Contractor shall renew and/or extend the validity period of the Retention Bond
as and when necessary to ensure that the Retention Bond remains valid and
enforceable until the Expiry Date.
Should
the Contractor fail to provide the Retention Bond in accordance with any
provisions of this Clause 29 or the Retention Bond cease to be in force or
effect at any time prior to the Expiry Date, then, without prejudice to any
other rights the Purchaser may possess, the Purchaser may deduct sums from any
monies due or to become due to the Contractor under this Contract up to a total
sum equivalent to the amount required to be guaranteed by the Retention
Bond. The Purchaser may retain or withhold such sums until such time
that a Retention Bond for the remaining period or requisite amount is provided
or the Retention Bond is no longer required under the provisions of the
Contract.
|
30
|
Use Before
Taking-Over
|
If, by
reason of any default on the part of the Contractor, a Taking Over Certificate
has not been issued within one week after the end of the successful Tests on
Completion of the Works, the Purchaser shall without prejudice to the
Purchaser's other rights hereunder, be entitled but not be obliged, to use any
part of the Works in respect of which a Taking Over Certificate has not been
issued, provided the same is reasonably capable of being used. The
Contractor shall be afforded the earliest possible opportunity of taking such
steps as may be necessary to permit the issue of the Taking Over
Certificate. The provisions of Clauses 43.1, 43.2 and 43.3 shall not
apply to any part of the Works while being so used by the Purchaser and Clause
36 shall apply thereto as if a Taking Over Certificate had been issued from the
date such part was taken into use. The Purchaser's rights under this
Clause 30 shall not relieve the Contractor of its obligations under the
Contract.
56
|
31
|
Interference with
Tests
|
|
31.1
|
Interference with
Tests
|
If by
reason of any failure of the Purchaser (except any failure caused by an event of
Force Majeure) to comply with its obligations under Clause 11 to make available
requisite the Purchaser Input including the feedstock as per the schedule in the
Programme, or such date as mutually agreed between the Parties (except for
events of Force Majeure), or if by reason of any act or omission of the
Purchaser, the Engineer or some other contractor employed by the Purchaser, the
Contractor shall be prevented from carrying out the Tests on Completion and
achieve the requirements for the issuance of a Taking Over Certificate in
accordance with Clause 29 then the date stipulated in the Contract for the Final
Performance Acceptance, achievement of which has been prevented or delayed,
shall be extended by the period of such delay which has affected each such Test,
and the Contractor shall be entitled to request for an extension of Time for
Completion under Clause 33 and additional Cost incurred by the Contractor under
Clause 41.
|
31.2
|
Deemed Taking
Over
|
If the
Contractor shall be prevented from carrying out Tests on Completion as mentioned
in Clause 31.1 and such prevention shall continue for a period of 10 (ten) days
or more, the Contractor may by written notice to the Engineer (with a copy to
the Purchaser), require him to give notice to proceed within 3 (three)
days. If notice to proceed is not given within that time the
Contractor may by further written notice to the Engineer (with a copy to the
Purchaser), require that this Clause shall have effect, in which case, unless in
the meantime the Works are in the opinion of the Engineer not substantially in
accordance with the Contract, the Purchaser shall be deemed to have elected to
declare Final Performance Acceptance of the Plant, and taken over the Works or
the relevant section and the Engineer shall, upon the application of the
Contractor, issue a Taking Over Certificate accordingly.
|
31.3
|
Tests to be Carried
out During Defects Liability
Period
|
In any
case where a Taking Over Certificate has been issued under Clause 31.2 the
Contractor shall be under an obligation to carry out the Tests on Completion
during the Defects Liability Period as and when required by adequate prior
notice from the Engineer. Such allowances shall be made from the
results required to be attained in the Tests on Completion as may be reasonable
having regard to any use of the Works by the Purchaser prior to the Tests on
Completion and to any deterioration therein which may have occurred since the
issue of the Taking Over Certificate in respect thereof. The
Contractor shall be entitled to request a Variation under Clause 27 in respect
of any Costs demonstrated to be in excess of those budgeted by the Contractor
for the Tests on Completion and incurred by the Contractor in making the Tests
on Completion in accordance with this Sub-Clause.
|
32
|
Time for
Completion
|
|
32.1
|
Time for
Completion
|
The
Contractor shall so execute the Works that it shall be complete, pass the Tests
on Completion and achieve the Final Performance Acceptance within the Time for
Completion set forth in Appendix 2. Time for Completion is the
essence of the Contract.
|
32.2
|
Achievement of
Milestones
|
The
Contractor shall achieve the Milestones set out in the Programme.
57
|
32.3
|
Payments to
Sub-contractors
|
The
Contractor shall manage timely payments to the sub-contractors in a manner not
to prejudice the adherence to the Programme and achievement of Time for
Completion. If the Engineer at anytime has reasonable grounds to
believe that any delay in meeting the Programme, Milestones and/or the Time for
Completion is as a result of delayed or underpayments to the Sub-contractors,
then the Engineer may require the Contractor, and the Contractor shall comply
with, to provide evidence to the Engineer, to the Engineer's satisfaction, that
the payments made by the Purchaser have been utilised for the expenditure on the
Works and that the payments to the Sub-contractors have been done in a manner so
as not to prejudice the adherence to the Programme and achievement of Time for
Completion. If the Engineer is not satisfied with such evidence, the
Engineer, may in its sole discretion, direct the Contractor to undertake
suitable remedial measures including payments to Sub-contractors, as the
Engineer deems fit. No such direction by the Engineer and the
compliance thereof by the Contractor shall relieve the Contractor of any of its
obligations under the Contract.
|
33
|
Extension of Time for
Completion
|
|
33.1
|
Extension of Time for
Completion
|
If by
reason of:
|
|
(a)
|
Any
cause of delay referred to in Clause 31;
or
|
|
|
(b)
|
Force
Majeure; or
|
|
|
(c)
|
The
Contractor not having received from the Purchaser or the Engineer in due
time, necessary instructions, decisions, information or comments which the
Purchaser or the Engineer is bound to give under the Contract and for
which the Contractor specifically applied in writing provided that such
application was made by the Contractor not less than 14 (fourteen) days
prior to the date on which it was necessary for him to receive such
instructions, decisions, information or comments, or an earlier date if
agreed otherwise by the Parties and the Contractor has complied with its
obligations hereunder; or
|
|
|
(d)
|
Failure
by the Purchaser to make available to the Contractor the Site and/or other
Purchaser Input as per the Programme;
or
|
|
|
(e)
|
Any
change carried out pursuant to Clause 27 in respect of which a change in
any Milestone and/or change in the Programme is incorporated in the
Variation; or
|
|
|
(f)
|
Any
other delay, impediment or prevention caused by the Purchaser including
the Engineer or for which the Purchaser is responsible of whatsoever
nature (including any suspension of work under Clause 25 or prevention
from carrying out of Tests on Completion under Clause
31),
|
(hereinafter
referred to as the "Event of Delay"),
the
Contractor shall have been or will be delayed in the completion of the Works and
achievement of the Final Performance Acceptance (and whether such matter or
delay occurs before or after expiry of the Time for Completion) then, the
Contractor shall immediately give a written notice to the Engineer of the
material circumstances including the cause(s) of the delay and identify in such
notice any event which in its opinion is an Event of Delay, and in any case
shall do so within fourteen (14) days (or such longer period as may be specified
or agreed to by the Engineer) from the date of the occurrence or commencement of
the Event of Delay.
In
respect of each and every Event of Delay identified in the notice given in
accordance with Clause 33.1, the Contractor shall, if practicable in such
notice, or otherwise in writing within 14 (fourteen) days of such notice, submit
to the Engineer sufficient particulars of:
|
|
(a)
|
the
expected effects thereof, including the estimated length of delay whether
or not concurrently with delay resulting from any other Event of Delay;
and
|
|
|
(b)
|
the
effect of the event on the
Programme,
|
58
to enable
the Engineer to assess the extension of time to be granted.
If the
Engineer is of the opinion that the particulars submitted by the Contractor are
insufficient to enable him to decide on the application for extension of time,
the Engineer shall within 14 (fourteen) days from receipt of the Contractor's
first application inform the Contractor of any deficiency in its submission, and
may require the Contractor to provide such further particulars within a further
7 (seven) days or such other period of time as may be stated by the
Engineer.
Provided
always that the Contractor has submitted to the Engineer its notice in writing
for extension of time as well as the requisite particulars in accordance with
the provisions of this Clause 33 and provided that the Contractor shall have
used and shall continue to use all reasonable endeavours to avoid and minimise
delay, the Engineer shall consider the Contractor's application and
either:
|
|
(a)
|
issue
a certificate to the Contractor granting an extension of time as he
estimates to be fair and reasonable by fixing such later date as the Time
for Completion for the whole of the Works or any Project Section;
or
|
|
|
(b)
|
reject
the Contractor's application,
|
not later
than 14 (fourteen) days from the receipt of sufficient particulars from the
Contractor, irrespective of whether the period between receipt of sufficient
particulars from the Contractor and the Time for Completion is less than 14
(fourteen) days. For the avoidance of doubt, the Contractor shall not
be entitled to any extension of time where instructions or acts of the Purchaser
and/or the Engineer are necessitated by or intended to cure any default of or
breach of Contract by the Contractor and/or its sub-contractors.
In
assessing the extension of time, the Engineer may take into account the effect
or extent of any work omitted under the Contract and any other Events of Delay
for extension of time not submitted or included in the Contractor's application,
which in the Engineer's opinion will entitle the Contractor to an extension of
time.
|
33.2
|
Strict Compliance
Required
|
The
Contractor shall not be entitled to any extension of the Time for Completion of
the Works or allowance of time in respect of any event or circumstance to which
the provisions of this Clause apply unless it shall have complied strictly with
the terms hereof, and in default of strict compliance, the Contractor shall be
deemed to have waived all rights, claims and damages to which it might otherwise
have become entitled pursuant to the Conditions or as a result of any breach of
duty by the Purchaser or the Engineer. For the avoidance of doubt,
the provision of the notice and particulars (at substantially all such times and
instances when required) within the respective periods required under this
Clause shall be a condition precedent to the Contractor's entitlement to
extension of time.
|
33.3
|
Minimising Anticipated
Delay
|
In all
cases where the Contractor has given notice under Clause 33.1 the Contractor
shall thereafter comply with all reasonable instructions which the Purchaser
shall give in order to overcome or minimise any actual or anticipated delay
caused by the Event of Delay. If compliance with any such instruction
shall cause the Contractor to incur extra Costs the Contractor shall be entitled
to make a claim for Costs under Clause 41, provided that the extra Cost
requested shall only be the excess over applicable insurance
recovery.
59
|
33.4
|
Instructions to Avoid
or Reduce Delay
|
If
completion of the Works shall be delayed or expected to be delayed in
circumstances where the Contractor is entitled to an extension of the Time for
Completion therefore, the Purchaser shall be entitled to instruct the Contractor
to take measures to avoid or reduce such delay (provided always such measures
are physically practicable) and the Contractor shall comply with such
instructions and shall be entitled to request a Variation in respect of the
reasonable additional costs incurred in excess of applicable insurance
recovery.
|
34
|
Delay
|
|
34.1
|
Delay in
Completion
|
Subject
to Clause 34.2, if the Contractor fails to achieve Final Performance Acceptance
in accordance with the Contract within the Time for Completion, the Contractor
shall pay to the Purchaser or as the Purchaser shall direct upon demand, without
set-off or counterclaim the sum calculated at the rate named in the Appendix 2
as liquidated damages for such default, and not as a penalty, for every week or
part of a week which shall elapse between the expiry of the Time for Completion
stated in the Appendix 2 and the Commercial Operation Date. If any
such due amount remains unpaid 14 days after a written demand therefore the
Purchaser shall be entitled to charge interest on the amount unpaid calculated
daily at the rate of 2% per annum over the Base Lending Rate. Payment
of liquidated damages by the Contractor shall be made in Malaysian Ringgit and
on a weekly basis not later than 7 (seven) days from the end of the week,
failing which such liquidated damages shall be deducted from the Contract Price
or be claimed against the Performance Bond.
|
34.2
|
Contractor's Liability
Subject to Qualification
|
The
Contractor's liability under Clauses 34.1 shall be subject to the
following:
|
|
(a)
|
the
aggregate amount of all liability for liquidated damages for delay
hereunder shall not exceed the amount named in Appendix 2 as the Limit of
Liquidated Damages for Delay; and
|
|
|
(b)
|
save
as expressly provided in Clause 34.3 the liquidated damages provided for
under Clause 34.1 shall be the full extent of the Contractor's sole and
exclusive liability to the Purchaser in respect of delay in achieving
Final Performance Acceptance within the Time for
Completion.
|
|
34.3
|
Prolonged
Delay
|
If after
the Purchaser has become entitled pursuant to Clauses 34.1 to damages up to the
limit provided under Clause 34.2 or the combined limit provided under Clause
44.3 any part of the Works remains uncompleted, the Purchaser may by notice to
the Contractor require him to complete that part and the Contractor shall
complete that part in accordance with such notice from the
Purchaser. Such notice shall fix a final time for completion, which,
shall be reasonable having regard to such delay as has already occurred and to
the extent of the work required for completion. If for any reason
other than an event of Force Majeure or one for which the Engineer or the
Purchaser or some other contractor employed by the Purchaser is responsible the
Contractor fails to complete within such time, then the Purchaser may (a) by
further notice to the Contractor terminate the Contract and otherwise proceed in
accordance with Clause 46.3, or, (b) accept the Plant subject to reaching an
agreement on further reduction in Contract Price.
|
34.4
|
Contractor's Liability
Not Prejudiced
|
Notwithstanding
any provisions of these Conditions, the obligation of the Contractor to make
payments and the right of the Purchaser to make deductions under Clause 34 in
respect of any failure by the Contractor referred to in Clauses 34.1 shall not
be prejudiced or in any way affected by virtue of such failure also constituting
the non-achievement of a Milestone.
60
|
34.5
|
Liquidated Damages
Reasonable
|
The
Purchaser and the Contractor hereby acknowledge and agree that the terms,
conditions and amounts fixed pursuant to this Clause 34 for delay liquidated
damages are reasonable and shall be deemed to be the genuine pre-estimate and
reasonable loss which the Purchaser will suffer, considering the reduction in
the value of the Plant or losses that the Purchaser will sustain in the event of
the Contractor's failure to achieve Final Performance Acceptance within the Time
for Completion. The amounts of these liquidated damages are agreed
upon and fixed hereunder by the Parties because of the difficulty of
ascertaining on the date hereof the exact amount of such reduction in value or
losses that will actually be sustained by the Purchaser in the event of any such
failure by the Contractor, and the Parties hereby agree that the liquidated
damages amounts specified herein shall be applicable regardless of the amount of
such reduction in value or losses actually sustained by the Purchaser and,
subject to the provisions of Clause 44 hereof and the Purchaser's rights to
terminate this Contract pursuant to Clause 46 hereof, shall be in lieu of all
remedies and damages for failure to achieve the Final Performance Acceptance
within the Time for Completion.
In the
event that the Purchaser is held or declared by any Court of Law not to be
entitled to recover the abovesaid liquidated damages under this Clause for any
reason whatsoever, the Purchaser shall remain entitled to recover such losses,
expenses, costs or damages as the Purchaser would be entitled to at law in the
absence of the right to recover the abovesaid liquidated damages.
|
35
|
Performance Liquidated
Damages
|
|
35.1
|
Performance Liquidated
Damages
|
If at the
time of achievement of Final Performance Acceptance or Taking Over or the
earlier expiry of the final time for completion fixed pursuant to Clause 34.3,
the Contractor is unable to demonstrate that the Performance Guarantees for
Biodiesel and/or Glycerine Output at the level of feedstock and utility
consumption as specified, as the case may be, are satisfied, the Contractor
shall pay to the Purchaser, as liquidated damages for its failure to achieve the
applicable Performance Guarantees and not as a penalty, the respective amounts
calculated at the rates set forth in Appendix 7 to these
Conditions.
This
Clause 35.1 sets forth the sole and exclusive liability of the Contractor to the
Purchaser for the failure of the Contractor to cause the Plant to meet the
Performance Guarantees, provided however that the Contractor has caused the
Plant to meet the Minimum Acceptable Performance Criteria. Amounts
accruing under this Clause 35.1 shall be due and payable not later than 14
(fourteen) days after receipt by the Contractor of an invoice from the Purchaser
following the Tests on Completion for the Plant carried out to demonstrate the
achievement of Final Performance Acceptance setting forth the Purchaser's claim
under this Clause 35.1.
The
Contractor shall promptly pay all amounts due under this Clause 35.1 to the
Purchaser or as the Purchaser shall direct without set-off or
counterclaim. If any such due amount remains unpaid 14 (fourteen)
days after a written demand therefore the Purchaser shall be entitled to charge
interest on the amount unpaid calculated daily at the rate of 2% per annum over
the Base Lending Rate. Payment of liquidated damages by the
Contractor shall be made in Malaysian Ringgit. The Purchaser, at its
sole discretion, shall be entitled to set off or deduct amounts due under this
Clause 35.1 and under Clause 34.1 against approved payment certificates, against
retention amounts or against any other amounts due to the Contractor
hereunder.
61
|
35.2
|
Liquidated Damages
Reasonable
|
The
Purchaser and the Contractor hereby acknowledge and agree that the terms,
conditions and amounts fixed pursuant to this Clause 35 for performance
liquidated damages are reasonable, considering the reduction in the value of the
Plant or losses that the Purchaser will sustain in the event of the Contractor's
failure to achieve the Performance Guarantees. The amounts of these
liquidated damages are agreed upon and fixed hereunder by the Parties because of
the difficulty of ascertaining on the date hereof the exact amount of such
reduction in value or losses that will actually be sustained by the Purchaser in
the event of any such failure by the Contractor, and the Parties hereby agree
that the liquidated damages amounts specified herein shall be applicable
regardless of the amount of such reduction in value or losses actually sustained
by the Purchaser and, subject to the provisions of Clause 44 hereof and the
Purchaser's rights to terminate this Contract pursuant to Clause 46 hereof,
shall be in lieu of all remedies and damages for failure to achieve the
Performance Guarantees by such date.
|
35.3
|
Contractor's Liability
Subject to Qualification
|
The
aggregate amount of liquidated damages under Clause 35 shall not exceed the
amount named in the Appendix 2 as the Limit of Liquidated Damages for
Performance Guarantees.
In the
event that the Purchaser is held or declared by any Court of Law not to be
entitled to recover the abovesaid liquidated damages under this Clause for any
reason whatsoever, the Purchaser shall remain entitled to recover such losses,
expenses, costs or damages as the Purchaser would be entitled to at law in the
absence of the right to recover the abovesaid liquidated damages in the absence
of the right to recover the abovesaid liquidated damages.
|
36
|
Defects
Liability
|
|
36.1
|
Meaning of Defects
Liability Period
|
In these
Conditions the expression "Defects Liability Period" means the period commencing
on the date of Taking Over and ending on the date 12 (twelve) months or such
other period as may be pursuant to Clauses 36.3 and 36.4.
|
36.2
|
Making Good
Defects
|
The
Contractor shall be responsible for rectifying or making good by correction,
repair or replacement with all possible speed at its expense any error in,
defect or damage to any part of the Works or any other failure of the Works to
comply with the Contract which may appear or occur during the relevant Defects
Liability Period and which arises either:
|
|
(a)
|
from
any defective materials, workmanship or design (other than a design made,
furnished, or specified by the Engineer and with which the Contractor has
disagreed in writing within a reasonable time after receipt of it);
or
|
|
|
(b)
|
from
any act or omission of the Contractor its agents, employees or
Sub-contractors.
|
If any
such defect shall appear or damage occur the Purchaser or the Engineer shall
promptly on becoming aware thereof inform the Contractor thereof stating in
writing the nature of the defect or damage.
The
Purchaser shall permit the Contractor access to the Site and the Plant for the
purposes of rectifying or making good such defect or damage in accordance with a
remedial program prepared by the Purchaser in consultation with the operations
and maintenance contractor and agreed with the Contractor. The
Contractor shall expedite the rectification and making good as required by such
remedial program at its own cost and shall comply with applicable safety,
environmental and security regulations during the performance of such
work.
62
Making
good shall include making good the equipment concerned on all units by
modification, repair or replacement regardless of whether they have previously
been taken over or not and provision of modified drawings and operation and
maintenance manuals.
When the
Contractor has completed to the satisfaction of the Engineer all such
rectification and making good as may be required in respect of any part of the
Works and the relevant Defects Liability Period has expired, the Engineer shall
in respect of that part of the Works issue a Defects Liability Certificate in
the form and substance as set out in Appendix 21.
The
aforementioned warranty obligations of the Contractor during the Defects
Liability Period under this Clause 36 do not extend to (i) any repairs,
adjustments, alterations, replacements or maintenance of materials that are
required solely as a result of (a) normal wear and tear in the operation of the
Biodiesel Project or (b) the Purchaser's failure to operate and maintain the
Biodiesel Project in accordance with the operating and maintenance
specifications set forth in the Contractor's operation and maintenance manuals
or (ii) any warranty obligation in respect of items of equipment, materials or
services supplied by the Purchaser or other contractors engaged by the
Purchaser.
|
36.3
|
Application to Works
Made Good
|
The
provisions of this Clause 36 shall apply to any portion of the Works which have
been previously made good, replaced or repaired under Clause 36.2 and the
Defects Liability Period for such portion of the Works shall be accordingly
extended for a further period of twelve (12) months after the date of completion
of such making good, repair or replacement.
|
36.4
|
Extension of Defects
Liability
|
The
Defects Liability Period in respect of all or any portion of the Works
(including the Defects Liability Period applicable to all repairs and
replacements under Clause 36.3) shall in addition to the extension described in
Clause 36.3 be extended by a period equal to the period during which the Works
(or that part thereof in which the defect or damage to which this Clause applies
has appeared or occurred) cannot be used by reason of any defect or
damage.
|
36.5
|
Outer Limit of Defects
Liability
|
Notwithstanding
the provisions of Clause 36.3 and Clause 36.4, in no event shall the Defects
Liability Period with respect to the Biodiesel Project (or any component
thereof) or any spare or replacement part extend beyond the date that is 24
(twenty four) calendar months after the date of Taking Over of the entire
Biodiesel Project.
|
36.6
|
Delay in Remedying
Defects
|
If any
such error defect damage or failure be not remedied by the Contractor within 14
(fourteen) days from receipt of the notification thereof by the Purchaser or
Engineer under Clause 36.2, the Purchaser may proceed to do the work at the
Contractor's expense provided that it notifies the Contractor of its intention
so to do. The cost reasonably incurred by the Purchaser shall,
without prejudice to any other method of recovery be deducted from the Contract
Price or be paid by the Contractor to the Purchaser forthwith on
demand.
Provided,
however, that if the Contractor demonstrates to the satisfaction of the
Purchaser that the Contractor has made best endeavours (such as placement of
orders for replacement materials and equipments in good time) to remedy the
defects within the stipulated time and any delay is for causes not entirely
controllable by the Contractor (such as replacement material and equipments are
not generally available due to general shortage in the market for such materials
and equipment), then the Purchaser shall grant a reasonable extension of time to
remedy defects to the Contractor
63
|
36.7
|
Removal of Defective
Work
|
The
Contractor may with the consent of the Purchaser remove from the Site any part
of the Works which is defective or damaged, if the nature of the defect or
damage is such that repairs cannot be expeditiously carried out on the
Site.
|
36.8
|
Not
Used
|
|
36.9
|
Contractor to Search
for Cause of Defect / Damage
|
The
Contractor shall, if required by the Purchaser in writing, search for the cause
of any defect or damage at its own costs.
|
36.10
|
Latent
Defects
|
Notwithstanding
the completion of the Defects Liability Period, the Contractor shall be
responsible for expeditiously making good by repair or replacement at its option
and at its cost and expense any Latent Defect in the Biodiesel Project or any
part thereof, which, appears before the expiry of the Latent Defects Liability
Period.
Latent
Defects shall mean any inherent defects in design, workmanship or material which
surface after the Defects Liability Period and which could not be detected
despite normal inspection during the Defects Liability Period by the Purchaser
and which may hinder or endanger the normal operation of the Biodiesel
Project.
For the
purposes of this Contract the term Latent Defects Liability Period shall mean
the period commencing from the date of Taking Over of the Biodiesel Project and
ending on a date that is exactly 18 (eighteen) months thereafter.
|
36.11
|
Liability for
Defects
|
Save as
expressly provided in Clauses 29, 36 and 43 neither the Contractor nor its
Subcontractors, their respective servants or agents shall be liable, whether in
contract, in tort (including but not limited to negligence) or by reason of
breach of legal duty or otherwise, in respect of defects in or damage to any
part of the Works taken over under Clause 29.
Nothing
in this Clause shall affect the liability of the Contractor under these
Conditions in respect of any part of the Works not yet taken over, or its
liability for death or personal injury caused by its wilful or negligent acts or
omissions.
|
36.12
|
Sub-Contractor
Warranties
|
The
Contractor shall obtain warranties and guarantees from its Subcontractors,
suppliers and the manufacturers with respect to the materials, workmanship and
equipment which form a part of the Works. Such warranties and
guarantees shall be standard for the biodiesel and glycerine refining industry
in all material respects. The Contractor shall ensure that all such
warranties and guarantees in existence at the conclusion of the Defects
Liability Period, if any, shall be assigned for the benefit of the
Purchaser.
|
36.13
|
Limitation of
Warranties
|
Except as
provided in this Agreement, there are no warranties express or implied relating
to the Works to be performed by the Contractor hereunder, and the Contractor
disclaims any implied warranties or warranties imposed by Law (other than
warranties of title).
64
|
37
|
Vesting of
Plant
|
|
37.1
|
Vesting of
Plant
|
The
equipment and materials forming a part of the Works to be supplied pursuant to
the Contract shall become the property of the Purchaser when such equipment or
material is delivered to the Site pursuant to the Contract
|
37.2
|
Contractor to Procure
Title to Plant
|
The
Contractor shall procure that title to all equipment and other materials vested
in the Purchaser under Clause 37.1 shall be free from any lien, charge or any
other security interest and that no person shall have any claim to title
thereto. If, notwithstanding this Clause 37.2, such Plant, equipment
and other materials are subject to any lien, charge, other security or claim,
the Purchaser may discharge the lien, charge, security or claim and recover all
costs thereby incurred from the Contractor on demand.
|
37.3
|
Setting Aside and
Marking Plant
|
Where,
prior to delivery, the property in the Biodiesel Project (or any part thereof)
passes to the Purchaser, the Contractor shall, so far as is practicable, set the
property in the Biodiesel Project aside and xxxx it as the Purchaser's property
in a manner reasonably required by the Engineer.
|
37.4
|
Not
Used
|
|
37.5
|
Inspection of
Plant
|
The
Contractor shall permit the Engineer, the Purchaser and any persons authorised
by the Purchaser at any time upon reasonable notice to inspect any property in
the Biodiesel Project which has become the property of the Purchaser and shall
grant the Engineer or procure the grant of access to the premises of the
Contractor, its Subcontractors or any other premises for such purposes or any
other premises where such property in the Biodiesel Project may be
located.
|
37.6
|
Contractor's
Risk
|
All such
property in the Biodiesel Project shall be in the care and possession of the
Contractor solely for the purposes of the Contract and shall not be within the
purchasership or disposition of the Contractor. All such property in
the Biodiesel Project shall be at the risk of the Contractor in accordance with
Clause 43.
|
37.7
|
Certificate
Issued
|
No
certificate issued by the Engineer under Clause 39 shall prejudice the right of
the Purchaser to reject Plant or part thereof, which is not in accordance with
the Contract. The property in the rejected Plant shall immediately
revert to the Contractor upon the replacement thereof by the
Contractor.
|
38
|
Contractor's
Equipment
|
|
38.1
|
Contractor's
Equipment
|
The
Contractor shall provide all Contractor's Equipment necessary to complete the
Works in accordance with the Contract and shall bear all the costs thereof
including, but not limited to, import duty and any other taxes.
65
|
38.2
|
Contractor's Equipment
to be Exclusively for Execution of
Works
|
All the
Contractor's Equipment shall when brought on to the Site, be used exclusively
for the execution of the Works except as provided for in Clause
18.4. The Contractor shall not thereafter remove the same or any part
thereof from the Site without the consent of the Engineer, which shall not be
unreasonably withheld in the case of the Contractor's Equipment not currently
required for the execution of the Works on the Site.
|
38.3
|
Loss or Damage to
Contractor's Equipment
|
The
Contractor shall be liable for loss of or damage to any Contractor's Equipment
which may occur otherwise than through the acts or default of the Purchaser or
those for whom the Purchaser is responsible including the Engineer.
|
38.4
|
Maintenance of
Contractor's Equipment
|
The
Contractor shall be responsible for maintaining the Contractor's Equipment on
the Site in safe working order.
|
39
|
Certificates and
Payment
|
|
39.1
|
Payment to
Contractor
|
The
Purchaser shall make payment to the Contractor in accordance with the Payment
Schedule and any such payment shall be subject to the achievement of the
Milestone and requests for payment certificates submitted by the Contractor and
certificate of payment issued and approved by the Engineer.
|
39.2
|
Not
Used
|
|
39.3
|
Not
Used
|
|
39.4
|
Deduction from
Certificate
|
The
Engineer may deduct from any certificate for payment issued under Clause 39.1
such amount as the Engineer shall consider reasonable in respect of any amounts
then in dispute between the Purchaser and the Contractor, any deduction as
authorised under this Contract and any work or Plant or goods or
materials:
|
|
(a)
|
which
in the opinion of the Engineer does not comply with the Contract;
or
|
|
|
(b)
|
in
respect of which the Contractor has not submitted satisfactory
evidence.
|
|
39.5
|
Payments not
Conclusive
|
Subject
to Clause 39.6 and 39.8, no certificate shall be relied upon as conclusive
evidence of any matter stated therein, nor shall it affect or prejudice any
right of the Purchaser or the Contractor against the other.
|
39.6
|
Application for Final
Certificate
|
The
Contractor shall make application for the Final Certificate at any time after
the Contractor has ceased to be under any obligation under Clause 36 (except
Clause 36.9) and after the Contractor has completed any remedial Works
outstanding at such time pursuant to Clause 36.
The
application for the Final Certificate shall be accompanied by a final account
prepared by the Contractor. The final account shall give full details
of the value of the Works and other sums certified by the Engineer.
The Final
Certificate shall, save in the case of fraud or dishonesty relating to or
affecting any matter dealt with in the certificate, be conclusive evidence as to
the sufficiency of the Works and of the value thereof. Upon the issue
of such Final Certificate, no further claims from the Contractor in respect of
the Works shall be entertained by the Purchaser.
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|
39.7
|
Value of Final
Certificate
|
The Final
Certificate shall be in the form set out at Appendix 12 subject to such
amendments as may be appropriate and shall certify the total amount payable to
the Contractor under the Contract in respect of the Works having regard to any
addition to or deduction from the Contract Price provided for in these
Conditions and claims in respect thereof made by the Contractor to the
Purchaser, the total amounts paid on certificates of payment previously issued
pursuant to this Clause 39, and the balance payable whether by the Purchaser to
the Contractor or by the Contractor to the Purchaser.
|
39.8
|
Issue of Final
Certificate
|
The
Engineer shall issue to the Contractor (with a copy to the Purchaser) the Final
Certificate within 30 days after receiving an application, which, the Contractor
was entitled to make and which complies with all the requirements of Clause
39.6. For the purpose of this Clause 39.8, time shall not start to
run until the Contractor has provided to the Engineer all information in support
or amplification of the final account that the Engineer may reasonably
require.
The issue
of the Final Certificate shall be conclusive evidence that the Contractor has
performed all its obligations under the Contract in respect of the Works except
for its obligation under Clause 36.9.
|
40
|
Payment
|
|
40.1
|
Payments
|
The
Payments payable to the Contractor for the Works under the Contract shall be
drawn by the Contractor from the Purchaser's Letter of Credit in accordance with
the terms of such Purchaser Letter of Credit.
|
40.2
|
Not
Used
|
|
40.3
|
Currency of
Payment
|
Each
payment will be made in Malaysian Ringgit.
|
41
|
Claims
|
|
41.1
|
Notification of
Claims
|
In every
case where under the Conditions the Contractor is or considers himself entitled
to be paid or to have included in or added to the Contract Price any extra or
additional payment the Contractor shall if it intends to make any claim for
additional payment:
|
|
(a)
|
within
30 (thirty) days of any circumstance arising which the Contractor
considers entitles him to claim additional payment, give to the Engineer
and/or the Purchaser notice of its intention to make a claim and shall
state the reasons by virtue of which it considers that it is entitled
thereto; and
|
|
|
(b)
|
subject
to Clause 27.6, within 30 (thirty) days after the date of the notice given
by the Contractor of its intention to make a claim under or arising out of
this Contract for additional payment or any other period agreed between
the Parties, which in any event shall be no later than the expiry of 60
(sixty) days after the issue of the Taking Over Certificate, submit to the
Engineer and/or the Purchaser full particulars of and the actual amount of
its claim for Costs. The Contractor shall thereafter promptly
submit such further particulars as the Engineer and/or the Purchaser may
reasonably require to assess the value of the
claim.
|
67
|
41.2
|
Allowance for
Profit
|
In any
case where under the provisions of Clause 16.2 (Exceptions), Clause 25.2
(Contractor's Expenses), Clause 25.5 (Resumption of Work, Delivery or Erection),
Clause 27.6 (Variations), Clause 31.1 (Interference with Tests), Clause 31.2
(Deemed Taking Over), Clause 31.3 (Tests to be Carried Out During Defects
Liability Period), Clause 33.3 (Minimising Anticipated Delay), Clause 33.4
(Instructions to Avoid or Reduce Delay), Clause 43.2 (Making Good Loss or Damage
to the Works) and Clause 49.5 (Consequences of Change in Law) the Contractor is
entitled to recover Cost, the Contractor shall also be entitled to be paid
profit at the percentage stated in the Appendix 2 on the additional Costs
approved by the Engineer.
|
41.3
|
Purchaser's Liability
to Pay Claims
|
Notwithstanding
anything contained in these Conditions the Purchaser shall not be liable to make
payment in respect of any claim under or arising out of this Contract for an
additional payment unless the Contractor has complied with the requirements of
this Clause 41. Strict compliance with the requirements of this
Clause, including the provision of the notice and particulars by the Contractor
within the requisite period, shall be a condition precedent to the Contractor's
entitlement to the payment of Costs under this Clause.
|
42
|
Patent Rights,
etc.
|
|
42.1
|
Indemnity Against
Patent Infringement
|
The
Contractor shall indemnify the Purchaser against all actions, claims, demands,
costs, charges and expenses arising from or incurred by reason of any
infringement or alleged infringement of patent, registered design, copyright,
trade xxxx name or other intellectual property right protected in Malaysia or
elsewhere by the use or possession of any Plant supplied by the Contractor but
such indemnity shall not cover any use of the Works otherwise than for the
purpose indicated by or reasonably inferred from the Contract or any
infringement which is due to the use of any Plant in association or combination
with any other plant not supplied by the Contractor.
It is
expressly agreed that the Purchaser shall have the full benefit of any indemnity
provided by Axens and Oiltech to the Contractor against all actions, claims,
demands, costs, charges and expenses arising from or incurred by reason of any
infringement or alleged infringement of patent, registered design, copyright,
trade xxxx name or other intellectual property right protected in Malaysia or
elsewhere by the use or possession of any Plant supplied by such
Sub-contractor.
|
42.2
|
Conduct of
Proceedings
|
If any
claim is made or action brought against the Purchaser arising out of the matters
referred to in this Clause, the Contractor shall be notified thereof and may at
its own expense conduct all negotiations for the settlement of the same, and any
litigation that may arise therefrom subject to liaison with the
Purchaser. The Purchaser shall not, unless and until the Contractor
shall have failed to take over the conduct of the negotiations or litigation
make any admission which might be prejudicial thereto. The conduct by
the Contractor of such negotiations or litigation shall be conditional upon the
Contractor having first given to the Purchaser such reasonable security as shall
from time to time be required by the Purchaser to cover the amount ascertained
or agreed or estimated, as the case may be, of any compensation, damages,
expenses and costs for which the Purchaser may become liable. The
Purchaser shall, at the request of the Contractor, afford all available
assistance for the purpose of contesting any such claim or action, and shall be
repaid all reasonable expenses incurred in so doing.
68
|
42.3
|
Not
used
|
|
42.4
|
Effect of
Infringement
|
If the
Purchaser is prevented from using the Works in consequence of any infringement
of patent, registered design, copyright, trade xxxx, trade name or other
intellectual property right and the Contractor in accordance with Clause 42.2 is
unable within 90 days after notice thereof from the Purchaser to procure the
removal at its own expense of the cause of prevention then, in case of an
infringement which is the subject of the Contractor's indemnity to the Purchaser
under Clause 42.1, the Purchaser may treat such prevention as a default by the
Contractor and exercise the powers and remedies available to him under Clause
46.
|
43
|
Accidents and
Damage
|
|
43.1
|
Care of
Works
|
Subject
to Clause 43.2, the Contractor shall bear and be responsible for all risk of
loss or damage to the Works and any Plant goods or materials notwithstanding
that the same may have become the property of the Purchaser and for all risks
relating to and the care of the Works and the Site or any part thereof until the
date of Taking Over as stated in the Taking Over Certificate applicable thereto
or the earlier taking over or use thereof by the Purchaser pursuant to Clause
29, 30 and 31. However the Contractor shall be responsible for the
care of the Plant or any part thereof for the period during which it carries out
any outstanding work pursuant to its obligations under the Contract after the
Taking Over. In the event of termination of the Contract in
accordance with these Conditions, responsibility for the care of the Works shall
pass to the Purchaser upon expiry of the termination procedures described in
Clause 46.1.6.
|
43.2
|
Making Good Loss or
Damage to the Works
|
If any
part of the Works shall suffer loss or damage whilst the Contractor· has
responsibility for the care thereof, except to the extent that such loss or
damage shall be caused by the Purchaser's Risks (defined in Clause 45) or an
event of Force Majeure according to Clause 49.1, the same shall be made good by
the Contractor at its own expense. The Contractor shall also at its
own expense (subject as aforesaid) make good any loss or damage to the Works
caused by him in the course of completing any outstanding work or of complying
with its obligations under Clause 36.
In the
event that any part of the Works shall suffer loss or damage whilst the
Contractor has responsibility for the care thereof which is caused by any of the
Purchaser's Risks or an event of Force Majeure according to Clause 49.1, the
same shall, if required by the Purchaser within 6 (six) months after the
happening of the event giving rise to loss or damage, be made good by the
Contractor. Such making good shall be at the expense of the Purchaser
at a price, as may be agreed between the Contractor and the Purchaser, failing
which the price (if any) shall be determined by the Engineer. The
price or sum so agreed or determined shall be added to the Contract
Price. Any extension of the Time for Completion and/or in a suitably
expeditious manner of making good, may also be agreed between the Contractor and
the Purchaser, failing which they shall be determined by the
Engineer.
Purchaser
shall be responsible for all risk of loss or damage to the Works and any Plant
goods or materials, whilst the Purchaser has responsibility for the care thereof
in accordance with the provisions hereof.
69
|
43.3
|
Injury to Persons and
Property Whilst the Contractor has Responsibility for Care of the
Works
|
Except as
hereinafter mentioned the Contractor shall be liable for and shall indemnify the
Purchaser against all claims in respect of personal injury or death and in
respect of loss of or damage to any property (other than the Works) which arises
out of or in consequence of the execution of the Works by the Contractor whilst
the Contractor has responsibility for the care thereof and against all demands,
costs, charges and expenses arising in connection therewith. The
Contractor shall not be liable under this Clause for, and the Purchaser shall
indemnify him from and against, any claims in relation to death or personal
injury or loss of or damage to property to the extent that the same results from
any acts or negligence of the Purchaser, its agents, servants or other
contractors (not being the Contractor's servants, agents or
sub-contractors).
|
43.4
|
Injury and Damage
After Responsibility for Care of the Works Passes to
Purchaser
|
If there
shall occur any death or injury to any person or loss of or damage to any
property (other than the Works) while the Purchaser is responsible for the care
of the Works, the Contractor shall be liable for and shall indemnify the
Purchaser against all such claims and all actions, demands, costs, charges and
expenses arising in connection therewith to the extent that such death or
personal injury or loss of or damage to property was caused by the negligence or
breach of statutory duty of the Contractor, its Sub-contractors, servants or
agents or by defective design materials or workmanship but not
otherwise.
|
43.5
|
Accidents or Injury to
Workmen
|
The
Contractor shall indemnify the Purchaser against all actions, suits, claims,
demands, costs, charges and expenses arising in connection with the death of or
injury to any person employed by the Contractor or its Sub-contractors for the
purposes of the Works. This indemnity shall not apply to the extent
that any death or injury results from acts or negligence or breach of statutory
duty of the Purchaser, its servants, agents or other contractors for whom the
Purchaser is responsible. The Purchaser shall indemnify the
Contractor against all claims, damages, costs, charges and expenses to such
extent the Purchaser is responsible.
|
43.6
|
Procedure for
Claims
|
In the
event of any claim being made against the Purchaser arising out of the matters
referred to and in respect of which it appears that the Contractor may be liable
under this Clause 43 the Contractor shall be promptly notified thereof and may
at its own expense conduct all negotiations for the settlement of the same and
any litigation that may arise in relation thereto. The Purchaser
shall not, unless and until the Contractor shall have failed to take over the
conduct of the negotiations or litigation, make any admission which might be
prejudicial thereto. The conduct by the Contractor of such
negotiations or litigation shall be conditional upon the Contractor having first
given to the Purchaser such reasonable security as shall from time to time be
required by him to cover the amount ascertained or agreed or estimated, as the
case may be, of any compensation, damages, expenses and costs for which the
Purchaser may become liable. The Purchaser shall at the request of
the Contractor afford all available assistance for any such purpose and shall be
repaid all Costs reasonably incurred in so doing.
|
43.7
|
Survival of
Termination
|
The
provisions of this Clause 43 shall survive termination of this Contract;
provided that neither Party shall have any indemnity obligation pursuant to
Clause 42 and 43 for any claim arising out of or resulting from events or
circumstances occurring after the expiration of the Defects Liability Period;
and provided, further, that neither Party shall have any indemnity obligation
pursuant to Clause 42 and 43 unless notice of any such claim for indemnity by
either Party is received by the indemnifying Party prior to the date that is 5
(five) years after the expiration of the Defects Liability Period.
70
|
44
|
Limitation of
Liability and Indirect or Consequential
Damage
|
|
44.1
|
Mitigation of
Loss
|
In all
cases the Party establishing or alleging a breach of contract or a right to be
indemnified in accordance with the Contract shall be under a duty to take
reasonable measures to mitigate the loss which has occurred or might occur
provided that it can do so without unreasonable inconvenience or
cost.
|
44.2
|
Indirect or
Consequential Damage
|
Except as
expressly provided in the Contract pursuant to Clauses 34 and 35, either Party
shall not be liable to the other Party by way of indemnity or by reason of any
breach of the Contract or of legal duty or by reason of tort (including but not
limited to negligence) or otherwise for any loss of profit, loss of use, loss of
production, loss of contracts or for any indirect or consequential loss or
damage whatsoever that may be suffered by the other of them.
This
Clause 44.2 shall not affect any liability of either Party arising as a result
of the fraud, deliberate default or reckless misconduct of such
Party.
|
44.3
|
Aggregate
Liability
|
In no
circumstances shall the aggregate liability of the Contractor to the Purchaser
for liquidated damages under Clauses 34 and 35 in respect of any and all acts or
defaults or delays or failures giving rise to such liquidated damages, exceed
the amount named in Appendix 2 as the Limit of Total Liquidated
Damages. No payment to the Purchaser by the Contractor nor any
deduction from payments to the Contractor by the Purchaser for liquidated
damages under Clauses 34 and 35 shall prejudice any other right of the Purchaser
under the Contract to recover any loss or damage caused by the Contractor's
default or breach of the Contract, nor relieve the Contractor of any other
obligation under the Contract including without limitation the obligation to
complete the Works in accordance with the Contract.
|
44.4
|
Limit of Total
Liability
|
Except
for any liability arising as a result of fraud, deliberate default or reckless
misconduct, the total liability of the Contractor to the Purchaser shall never
exceed the Contract Price. Provided that, in the event of a liability
arising pursuant to Article 10 of the TTA with Axens, the liability for the
Contractor shall be limited to the amounts specified in Article 10.5 of the
TTA.
|
44.5
|
Limit of
Liability
|
The
Purchaser and the Contractor intend that their respective rights, obligations
and liabilities as provided for in the Contract should be exhaustive of the
rights, obligations and liabilities of each of them to the other arising out of,
under or in connection with the Contract or the Works, whether such rights,
obligations and liabilities arise in respect or in consequence of a breach of
contract or of statutory duty or any tortuous or negligent act or omission which
gives rise to a remedy at common law or in equity. Accordingly,
except as expressly provided for in the Contract and except for any liability of
either Party arising as a result of the gross negligence or wilful misconduct of
such Party, neither Party shall be obligated or liable to the other in respect
of any damages or losses suffered by the other which arises out of, under or in
connection with this Contract or the Works, whether by reason of or in
consequence of any breach of contract or of statutory duty or tortous or
negligent act or omission and accordingly any releases or limitation of
liability expressed herein shall apply notwithstanding the negligence, strict
liability, fault or breach of contract of the Party whose liability is so
released or limited.
71
|
45
|
Purchaser's
Risks
|
The
"Purchaser's Risks" are:
|
|
a.
|
to
obtain the requisite rights to ownership or control over or use of the
land areas comprising the Site which are required by the Contractor to
carry out the Contractor's obligations under the Contract at the
Site;
|
|
|
b.
|
the
risk of loss of or damage to any part of the Works during the period that
such part is deemed to have been taken over by the Purchaser in accordance
with Clause 31.2;
|
|
|
c.
|
any
act or omission by its employees except where the Purchaser and/or its
employees have followed the instructions so provided by the Contractor
and/or its Subcontractors.
|
|
46
|
Termination
|
|
46.1
|
Termination Upon
Contractor and Purchaser
Events
|
|
46.1.1
|
Contractor Remediable
Events
|
Each of
the events described below shall be a Contractor Remediable Event:
|
|
(a)
|
The
failure of the Contractor within thirty (30) days after the Commencement
Date to commence the Works as evidenced by the lack of undertaking of the
activities usually and customarily undertaken under internationally
accepted construction standards and practices in connection with the
commencement of construction of projects similar to the
Plant.
|
|
|
(b)
|
The
failure of the Contractor to achieve the Final Performance Acceptance or
Taking Over without reasonable cause on or before sixty (60) days, or such
other mutually agreeable date, after the Time for Completion for the
Plant.
|
|
|
(c)
|
After
commencement of construction of the Plant, a wrongful general suspension
or abandonment by the Contractor of the construction of the Plant for more
than seven (7) consecutive days.
|
|
|
(d)
|
The
breach by the Contractor of any of its other obligations under this
Contract which is not remedied within thirty (30) days after notice from
the Purchaser to the Contractor stating that such a breach has occurred,
identifying the breach in question in reasonable detail and demanding
remedy thereof.
|
|
|
(e)
|
The
failure by the Contractor to make any payment under the Contract when due
and payable.
|
|
46.1.2
|
Contractor
Non-Remediable Events
|
Each of
the events set forth below shall be a Contractor Non-Remediable
Event:
|
|
(a)
|
The
occurrence of any of the following
events:
|
|
|
(i)
|
The
passing of a resolution for the bankruptcy, insolvency, winding up,
liquidation or other similar proceedings relating to the
Contractor;
|
|
|
(ii)
|
The
appointment of a trustee, liquidator, custodian, provisional manager or
similar person in a proceeding referred to in Clause 46.1.2(a)(i) above,
which appointment has not been set aside or stayed within sixty (60) days
of such appointment;
|
72
|
|
(iii)
|
The
making by a court having jurisdiction of an order winding up or otherwise
confirming the bankruptcy or insolvency of the Contractor, which order has
not been set aside or stayed within sixty (60)
days;
|
|
|
(iv)
|
The
un-enforceability, cancellation or other failure of the Advance Payment
Guarantee, Corporate Guarantees or the Performance Bond, or the bankruptcy
or other proceedings of the type described in the immediately preceding
Clauses 46.1.2(i), (ii) and (iii) affecting the guarantor, provided that,
in either case the Contractor has not provided a replacement guarantee or
bond acceptable to the Purchaser within five (5) business days after the
occurrence of any such event;
|
|
|
(v)
|
The
assignment of this Contract, other than to the guarantor of the documents
described in the immediately preceding Clause 46.1.2(iv), by the
Contractor in violation of its
terms;
|
|
|
(b)
|
After
a Contractor Remediable Event shall have occurred and a Remedial Notice
shall have been given by the Purchaser to the
Contractor:
|
|
|
(i)
|
In
the case of a Contractor Remediable Event described in Clause 46.1.1(a),
the failure of the Contractor to commence construction of the Plant
(evidenced as provided in Clause 46.1.1(a)) within fifteen (15) days after
receipt of the Remedial Notice;
|
|
|
(ii)
|
In
the case of a Contractor Remediable Event described in Clause 46.1.1(c),
the failure of the Contractor to resume construction of the Plant within
fifteen (15) days after receipt of the Remedial
Notice;
|
|
|
(iii)
|
In
the case of a Contractor Remediable Event described in Clause 46.1.1(e),
the failure of such breach to have been remedied by the Contractor within
thirty (30) days after receipt of the Remedial Notice;
and
|
|
|
(iv)
|
In
the case of a Contractor Remediable Event described in Clause 46.1.1(b) or
Clause 46.1.1(d):
|
|
|
(1)
|
the
failure of the Contractor to furnish the Purchaser with a Remedial
Programme within the time provided in Clause 46.1.5(b);
or
|
|
|
(2)
|
the
failure of the Contractor to implement such Remedial Programme with due
diligence; or
|
|
|
(3)
|
the
manifest or demonstrated inability of the Remedial Programme so furnished
to be capable of reasonable implementation;
or
|
|
|
(4)
|
the
manifest or demonstrated inability to remedy the Contractor Remediable
Event notwithstanding the exercise of due diligence of the Contractor in
implementing the Remedial Programme provided, however, that the foregoing
shall not be considered to be a Contractor Non-Remediable Event in the
case of Clause 46.1.l(b) if, subject to Clause 46.1.2(c), the Commercial
Operation Date shall have occurred or in the case of Clause 46.1.l(d) if,
subject to Clause 46.1.2(d), the breach in question shall have been
remedied.
|
73
|
|
(c)
|
The
failure of the Commercial Operation Date to occur by the date that is 120
(one hundred twenty) days, or such other mutually agreeable date, after
the expiry of the Time for Completion
or
|
|
|
(d)
|
The
failure of any breach described in Section 46.1.1(d) to have been remedied
within thirty (30) days after receipt of a Remedial Notice in respect
thereof.
|
|
46.1.3
|
Purchaser Remediable
Event
|
Each of
the events described below shall be a Purchaser Remediable Event:
|
|
(a)
|
The
failure by the Purchaser to make any payment under the Contract when due
and payable to the Contractor.
|
|
|
(b)
|
The
breach by the Purchaser of any of its other obligations under this
Contract which is not remedied within thirty (30) days after notice from
the Contractor to the Purchaser stating that such a breach has occurred,
identifying the breach in question in reasonable detail and demanding
remedy thereof.
|
|
46.1.4
|
Purchaser
Non-Remediable Event
|
Each of
the events set forth below shall be a Purchaser Non-Remediable
Event:
|
|
(a)
|
The
occurrence of any of the following
events:
|
|
|
(i)
|
The
passing of a resolution for the bankruptcy, insolvency, winding up,
liquidation or other similar proceedings relating to the
Purchaser;
|
|
|
(ii)
|
The
appointment of a trustee, liquidator, custodian, provisional manager or
similar person in a proceeding referred to in Clause (i) above, which
appointment has not been set aside or stayed within sixty (60) days of
such appointment;
|
|
|
(iii)
|
The
making by a court having jurisdiction of an order winding up or otherwise
confirming the bankruptcy or insolvency of the Purchaser, which order has
not been set aside or stayed within sixty (60)
days;
|
|
|
(b)
|
Not
used.
|
|
|
(c)
|
The
occurrence of any of the following events after a Purchaser Remediable
Event shall have occurred and a Remedial Notice shall have been given by
the Contractor to the Purchaser:
|
|
|
(i)
|
In
the case of a Purchaser Remediable Event described in Clause 46.1.3(a),
the failure of the Purchaser to make such payment within thirty (30) days
after receipt of the Remedial Notice;
and
|
|
|
(ii)
|
In
the case of a Purchaser Remediable Event described in Clause
46.1.3(b):
|
|
|
(1)
|
The
failure of the Purchaser to furnish the Contractor with a Remedial
Programme within the time provided in Clause 46.1.5(b);
or
|
|
|
(2)
|
The
failure of the Purchaser to implement such Remedial Programme with due
diligence; or
|
74
|
|
(3)
|
The
manifest or demonstrated inability of the Remedial Programme so furnished
to be capable of reasonable implementation;
or
|
|
|
(4)
|
The
manifest or demonstrated inability to remedy the Purchaser Remediable
Event notwithstanding the exercise of due diligence in implementing the
Remedial Programme, provided, however, that the foregoing shall not be
considered to be a Purchaser Non-Remediable Event in the case of Clause
46.1.3(b) if, subject to Clause 46.1.4(d), the breach in question shall
have been remedied.
|
|
|
(d)
|
The
failure of any breach described in Clause 46.1.3(b) to have been remedied
within thirty (30) days after receipt of a Remedial Notice in respect
thereof.
|
|
46.1.5
|
Remedial
Procedures
|
Upon the
occurrence of a Contractor Remediable Event or a Purchaser Remediable Event, the
following procedures shall be strictly followed by the Parties:
|
|
(a)
|
The
Purchaser may give notice to the Contractor of a Contractor Remediable
Event and the Contractor may give notice to the Purchaser of a Purchaser
Remediable Event (a "Remedial
Notice").
|
|
|
(b)
|
Upon
the Contractor's receipt of a Remedial Notice notifying the Contractor of
a Contractor Remediable Event described in Clauses 46.1.1(b) or 46.1.1(d)
and upon the Purchaser's receipt of a Remedial Notice notifying the
Purchaser of a Purchaser Remediable Event described in Clause 46.1.3(b),
the Party receiving the Remedial Notice shall prepare and furnish to the
other Party as promptly as practicable, and in any event within fifteen
(15) days, a detailed programme (the "Remedial Programme") for the
remedying of the Remediable Event giving rise to such Remedial
Notice.
|
|
46.1.6
|
Termination Upon
Contractor or Purchaser Non-Remediable
Events
|
Upon the
determination that a Contractor Non-Remediable Event or a Purchaser
Non-Remediable Event has occurred, the following procedure shall
apply:
|
|
(a)
|
The
Party which is not the subject of such event may give a notice (the
"Termination Notice") to the other Party, specifying in reasonable detail
the Contractor Non-Remediable Event or the Purchaser Non-Remediable Event,
as the case may be, giving rise to such Termination Notice, and the date
on which the Party giving such Termination Notice proposes to terminate
this Contract, which date shall not be less than thirty (30) days after
the date of such notice;
|
|
|
(b)
|
During
the period of thirty (30) days (or such longer period set forth in the
Termination Notice or as the Parties may agree) following the giving of
such Termination Notice, the Parties shall consult as to what steps shall
be taken with a view to mitigating or remedying the consequences of the
relevant event having regard to all the
circumstances;
|
|
|
(c)
|
If
the Party receiving the Termination Notice intends to raise a dispute
regarding the right to give effect to the Termination Notice, such Party
shall within fifteen (15) days of receipt of the Termination Notice so
inform the Party giving the Termination
Notice.
|
75
|
|
(d)
|
At
the expiry of the period referred to in Clause 46.1.6(b) and
unless:
|
|
|
(i)
|
The
Parties shall have otherwise agreed;
or
|
|
|
(ii)
|
The
event giving rise to the Termination Notice shall have been remedied;
or
|
the Party
having given the Termination Notice may terminate the Contract by giving written
notice thereof to the other Party, whereupon the Contract shall terminate on the
date specified for termination in such notice or such later date as the Parties
shall have agreed and Clause 46.3 shall apply.
|
46.2
|
Termination Other Than
Upon Contractor Non-Remediable Events or Purchaser Non-Remediable
Events
|
|
46.2.1
|
Termination in the
Event of Certain Events of Force
Majeure
|
If:
|
|
(i)
|
Any
event of Force Majeure prevents, or the Contractor and the Purchaser agree
that such an event of Force Majeure will prevent, the Contractor from
constructing the Project for a continuous period of more
than:
|
|
|
a)
|
1200
days in the case of a Direct Malaysian Political Event;
or
|
|
|
b)
|
150
days in the case of an Indirect Political Event;
or
|
|
|
c)
|
180
days in the event of a Non-Political Event;
or
|
|
|
(ii)
|
An
event of Force Majeure shall have occurred and the Parties shall have
followed the procedures described in Clause 49.2(c) and the Parties do not
agree on an adjustment of Contract
Price,
|
in the
case of (i), either Party, or in the case of (ii), the Purchaser, may terminate
this Contract upon ninety (90) days prior written notice to the other
Party.
|
46.2.2
|
Termination for
Convenience
|
The
Purchaser may terminate the Contract for its convenience at any time by
providing not less than 90 (ninety) days' prior written notice thereof to the
Contractor. Upon receipt of such notice the Contractor shall, unless
the notice directs otherwise, (i) discontinue the Works in an orderly and
organized manner on the date and to the extent specified in such notice and (ii)
place no further orders or subcontracts for the Works.
|
46.3
|
Consequences of
Termination
|
|
|
46.3.1
|
(a)
|
In
the event of termination of this Contract pursuant to Clause 46.1.6 due to
a Contractor Non-Remediable Event, as soon as practicable after the
Purchaser has given written notice referred to in the last paragraph of
Clause 46.1.6 to terminate the Contract to the Contractor, the Engineer
shall, by or after reference to the Parties and after making such
enquiries as it thinks fit, value the Works and all the sums then due to
the Contractor as at the date of termination in accordance with the
principles of Clause 39 and certify the amount thereof. The
amount so certified is herein called "the Termination
Value".
|
76
If
completion of the Works is reasonably practicable, the Purchaser shall not be
liable to make any further payments to the Contractor until the Cost of
completing the Works and all other costs (including without limitation profits
payable to any replacement contractor retained to complete the Works and any
increase in interest accruing during construction) actually incurred and losses
sustained (subject to Clause 44) by the Purchaser in completing the Biodiesel
Project substantially in the manner as envisaged hereunder and all other sums to
which the Purchaser is entitled under or by virtue of the Contract have been
reasonably ascertained and the amount thereof certified by the
Engineer. If the amount so certified when added to the total amount
already paid to the Contractor (such aggregate amount being hereinafter called
"the Cost of Completion") as at the date of termination exceeds the total amount
which the Engineer certifies would have been payable under the Contract to the
Contractor for the execution of the Works (provided that completion would have
been practicable) ("the Notional Contract Price"), the Engineer shall certify
each excess and the Contractor shall upon demand pay to the Purchaser the amount
of such excess. Any such excess shall be deemed a debt due by the
Contractor to the Purchaser and shall be recoverable accordingly by the
Purchaser with no deduction or set off whatsoever. If there is no
such excess the Contractor shall be entitled to be paid the lower
of:
|
|
(1)
|
The
Termination Value less the total of all payments received by the
Contractor as at the date of termination less the Contactor's liability in
respect of liquidated damages at the date of the termination of the
Contract, or
|
|
|
(2)
|
the
Notional Contract Price less the Cost of Completion less the Contractor's
liability in respect of liquidated damages at the date of the termination
of the Contract.
|
In the
event of termination of this Contract pursuant to Clause 46.1.6 due to a
Contractor Non-Remediable Event and if such termination renders the Project no
longer feasible then the Purchaser shall have the right to reject and return the
Works to the Contractor, and recover from the Contractor (a) all sums paid to
the Contractor and (b) subject to provisions of Clause 44 hereof all other costs
occasioned or incurred by the Purchaser as a direct result of such
termination.
|
|
(b)
|
In
the event of termination of the Contract pursuant to Clause 46.1.6 due to
a Purchaser Non-Remediable Event or pursuant to Clauses 46.2.1 and 46.2.2,
the Engineer shall certify, and the Purchaser shall pay to the Contractor
the sum of (a) the Contract Value of the Works performed by the Contractor
through the date on which the notice of such termination is received by
the Contractor, and (b) all other costs occasioned or incurred by the
Contractor as a direct result of such termination, less the cumulative
total of amounts previously certified under Clause 39.2 and paid pursuant
to Clause 40.1.
|
Provided
that if the Contract is terminated pursuant to clause 46.1.6 or 46.2.1 or
46.2.2, then, in no circumstances, shall the total amount received by the
Contractor under the Contract exceed the Contract Price as adjusted in
accordance with these Conditions.
|
46.3.2
|
Plant, Materials and
Goods
|
Upon
payment, except in the case of the Contractor's default where such transfer
shall be made irrespective of the time of payment, the Contractor shall transfer
to the Purchaser, upon request free from and clear of all liens and
encumbrances, all of the Purchaser's right, title and interest in the Plant,
insofar as they are part of or used in the Plant, including and without
limitation;
77
|
|
(i)
|
all
plant, materials and goods delivered to the site as well as all
consumables and spare parts;
|
|
|
(ii)
|
all
intangible personal property, including patents, patent licences, patent
applications, tradenames, trademarks, trademark registrations and
applications therefor, trade secrets, copyrights and any other
intellectual property rights (subject to the confidentiality provisions of
the Contract);
|
|
|
(iii)
|
computerised
and non-computerised records, reports, data, files and
information;
|
|
|
(iv)
|
all
drawings, test results, and documents (including those referred to in
Clause 13.10, 15.6 and 53.9) required to be provided by the Contractor
under the Contract;
|
|
|
(v)
|
all
warranties of equipment, materials and
work;
|
|
|
(vi)
|
all
contract rights and insurance
policies;
|
|
|
(vii)
|
all
work in progress under contracts with vendors, suppliers, contractors and
subcontractors; and
|
|
|
(viii)
|
all
rights with respect to any insurance proceeds payable to or for the
account of the Contractor, but unpaid at the date of termination of the
Contract, in respect of the Contractor's right, title and interest in the
Project to the extent the loss/damage has not been repaired or
replaced.
|
|
46.3.3
|
Survival
|
The
provisions of this Clause 46.3 shall survive the termination of the
Contract.
|
46.3.4
|
Other Rights and
Remedies
|
Upon the
breach by either Party hereto of any covenant or warranty hereunder, the Party
damaged by any such default or breach may, in its sole discretion, in addition
to exercising any other remedies provided for hereunder, proceed in accordance
with Clause 50 to protect and enforce its rights, to recover any damages to
which it may be entitled (including all costs and expenses reasonably incurred
in the exercise of its remedy) or to seek specific performance by the other
Party of such other Party's obligations under the Contract.
|
47
|
Insurance
|
|
47.1
|
Contractor's
Insurance
|
Subject
to the exercise of the option in Clause 13.24 by the Purchaser, without limiting
its obligations, responsibilities and liabilities under the Contract, the
Contractor, at its sole cost and expense, shall obtain and maintain the policies
of insurance described in Clause 47.1 and any other insurances statutorily
required in Malaysia during the term of the Contract. Nothing herein
shall prevent the Contractor, at its sole cost and expense, from procuring
insurance coverages in addition to those specified hereunder.
The
insurance referred to in Clause 47.1 shall include as the insured parties, the
Purchaser, the Engineer, their employees, agents, directors and such other
parties as the Purchaser may elect.
78
|
47.1.1
|
Workers Compensation
Insurance
|
In an
amount at least to cover all legal liabilities in respect of compensation and
damages and upon terms and conditions to comply with the workers compensation
and occupational disease laws and regulations of Malaysian respect of any local
Malaysian employees or to a level including benefits equal to those required by
applicable workers compensation law of the place of hire of any expatriate
personnel or where expatriate personnel may reside or of the place where the
employer of the expatriate personnel is domiciled whichever provide the employee
with the most advantageous level of benefit.
The
period of insurance shall commence from the Commencement Date until the
Contractor has been discharged in full from its obligations, responsibilities
and liabilities under the Contract.
|
47.1.2
|
Employer's Liability
Insurance
|
Covering
illness of, injury to or death of the Contractor's personnel while performing
its obligations under this Contract and to cover all legal liabilities in
respect of compensation or damage (without any excess) for each occurrence,
unlimited in the aggregate during the period.
The
period of insurance shall commence from the Commencement Date until the
Contractor has been discharged in full from its obligations, responsibilities
and liabilities under the Contract.
|
47.1.3
|
Automobile Liability
Insurance
|
Covering
legal liability for damage to property of, or illness or death or bodily injury
to, third parties arising out of the purchasership, use or maintenance of motor
vehicles owned, leased or non-owned by the Contractor or its Subcontractors of
any tier whilst used in the performance of its obligations under this Contract
and to cover all legal liabilities in respect of compensation or damage (without
any excess) for each occurrence, unlimited in the aggregate during the
period.
The
period of insurance shall commence from the Commencement Date until the
Contractor has been discharged in full from its obligations, responsibilities
and liabilities under the Contract.
|
47.1.4
|
Not
Used
|
|
47.1.5
|
Contractor's
Equipment
|
Covering
loss or damage to the Contractor's Equipment incurred whilst used in the
performance of its obligations under this Contract on all risks basis and
covering full replacement value of the Contractor's Equipment at the time of
loss.
Certain
specifically identified and scheduled equipment as agreed by the Parties may be
covered by the insurance described in Clause 47.2.1.
The
Contractor shall effect and maintain the insurance during the term of the
Contract where and when necessary to ensure the above mentioned
coverage.
|
47.1.6
|
Construction/Erection
All Risks (CEAR) Insurance:
|
|
|
(a)
|
Coverage:
|
This
insurance shall cover physical loss of or damage to any part of permanent and
temporary Works under construction by the Contractor and/or its Subcontractors,
including materials and equipment supplied for incorporation therein at all
locations where fabrication, construction, and assembly are conducted including
any warehousing and/or interim warehousing facilities. Scope of cover
is to be all risks subject to standard exclusions and
sublimits. Faulty design, faulty workmanship and faulty material
coverage to be included to the extent available under the Xxxxxx Xxxxxx XX0
design cover wording or its equivalent.
79
This
insurance shall cover as a separate section physical loss or damage to the
Contractor's Equipment having been delivered to the Site for the performance of
the Works. Only those items which have been advised by the Contractor
and incorporated under a schedule of Contractor's Equipment attached to the
policy of this insurance shall be covered under this insurance.
|
|
(b)
|
Amount
Insured:
|
Amount
Insured shall be the full reinstatement or replacement value of the
Plant.
|
|
(c)
|
Period:
|
Commencing
on the Commencement Date until the expiry of the Defects Liability Period
(including any extension thereof).
|
47.1.7
|
Marine
Cargo Insurance:
|
|
|
(a)
|
Coverage:
|
This
insurance shall cover all risks of physical loss of or damage to the materials,
equipment and supplies for incorporation or consumption in the Works, including
the Plant and certain Contractor's Equipment specifically identified and
scheduled as such, occurring during marine, air and/or inland transit at least
to the extent provided for by the London Institute Cargo Clauses "A" or its
equivalent.
|
|
(b)
|
Amount
Insured:
|
Replacement
value equivalent to a minimum 100% of CIF value of the materials and
equipment.
|
|
(c)
|
Voyage:
|
This
insurance shall commence from the time the materials, equipment and supplies
leave the originating factory, warehouse or place of storage "ex works" and
continue during the ordinary course of marine, air and/or inland transit
including any and all interim warehousing, storage and/or transshipment and
terminate at point of delivery at the Site.
|
47.1.8
|
Comprehensive
General Liability Insurance:
|
|
|
(a)
|
Coverage:
|
Coverages
to include but not be limited to all legal, contractual and statutory
liabilities for damage to property of or illness, death or bodily injury to or
personal injury to third parties arising out of the construction of the Works,
including the Plant.
|
|
(b)
|
Amount
Insured:
|
US$
10,000 (United States Dollars Ten Thousand Only) per anyone occurrence,
unlimited in the aggregate during the period.
80
|
|
(c)
|
Period:
|
Commencing
on the Commencement Date until the expiry of the Defects Liability Period
(including any extension thereof).
|
47.2
|
Purchaser'
Insurance
|
The
Purchaser may, at its sole discretion, effect and pay for any insurance policy
to cover losses due to delay in start-up (or more commonly known as advance loss
of profit policies).
|
47.3
|
General Provisions
Regarding Insurance
|
|
47.3.1
|
The
Purchaser and the Contractor shall be the joint policyholders as the
representative of the insured parties of the insurance referred to in
Clause 47.1.6, 47.1.7 and 47.1.8.
|
|
47.3.2
|
No
later than twenty-one (21) days prior to the scheduled date upon which the
insurances to be provided by the Contractor are to be in full force and
effect, the Contractor shall provide the Purchaser with the draft policy
wordings referred to in Clause 47.1 for review and
agreement.
|
The
Purchaser shall provide requested changes in the draft policy wordings, if any,
within seven (7) working days after receiving such documents from the
Contractor.
The
Contractor's agreement to any changes proposed by the Purchaser shall not be
unreasonably withheld.
The
Contractor shall comply and ensure that its subcontractors comply strictly with
the terms and conditions of the policies referred to in Clause 47 and all
reasonable requirements of insurers in connection with the settlement of claims,
the recovery of losses and the prevention of accidents and shall bear all costs
incurred by the Purchaser as a consequence of any failure so to
comply. The Contractor shall bear all excesses and/or deductibles
applicable to the insurance referred to in Clause 47.1.
The
Contractor shall bear all excesses and/or deductibles applicable to the
insurances referred to in Clause 47.1 unless the Purchaser is solely responsible
for the cause of the occurrence of an event insured in Clause 47.1.6, 47.1.7 and
47.1.8.
|
47.3.3
|
The
insurances referred to in Clause 47.1 shall be primary with respect to the
interests of the Purchaser, the Engineer, the Contractor, including their
approved sub-contractors, their employees, agents, directors and any other
insurances maintained by them are excess and not contributory with such
policies.
|
|
47.3.4
|
The
Contractor shall ensure that the insurances referred to in Clause 47.1
shall include standard cross liability
clauses.
|
|
47.3.5
|
The
Contractor shall ensure that notwithstanding any provision of the policies
of insurance referred to in Clause 47.1, the policies may not be
cancelled, non-renewed or materially changed by the insured parties
without written consent of the Purchaser (such written consent shall not
be unreasonably withheld). In addition the Contractor shall
make best efforts to ensure that the policies of insurance referred to in
Clause 47.1 contain provisions requiring insurers to provide a minimum of
60 (sixty) days prior written notice of any such intended cancellation,
non-renewal or material change before any cancellation, non-renewal or
material change shall be effective.
|
|
47.3.6
|
Any
payments by the insurers under the policies referred to in Clause 47.1.6
and Clause 47.1.7 shall be made to the Purchaser or to the account
designated by the Purchaser.
|
81
Where the
amount involved is less than RM 100,000 (One Hundred Thousand Only) (or the
equivalent in another currency) and the Contractor is obliged to effect any
repair, replacement or reconstruction of the Works ("Remedial Works") the
Contractor shall commence such Remedial Works and such amounts shall be paid by
the Purchaser to the Contractor for application solely in effecting such
Remedial Works unless progress of the Works has been suspended pursuant to
Clause 25 at the time when such proceeds are payable then such proceeds shall be
paid to the Contractor to the extent of Remedial Works in respect of which such
claim may arise and which were undertaken prior to such suspension.
Where an
event occurs which is likely to involve a claim under such policies in an amount
which is equal to or above RM 100,000 (One Hundred Thousand Only) or the
equivalent in another currency), the Contractor shall seek the written consent
of the Purchaser before commencing any Remedial Works in respect of which such
claim may arise and:
|
|
(a)
|
if
the Purchaser agrees that the Contractor may proceed with the Remedial
Works, then the relevant insurance proceeds shall be disbursed to the
Contractor in progress instalments to be calculated and disbursed in
accordance with the timetable for the Remedial Works agreed amongst the
Purchaser, the Insurers and the Contractor against progress statements
certified by the Purchaser (such statements not to be unreasonably
withheld or delayed by the Purchaser);
and
|
|
|
(b)
|
if
the Purchaser refuses to give its consent or fails to respond within
thirty (30) days of its receipt of such request from the Contractor, then
the Purchaser shall be deemed to have issued an order to suspend the Works
under Clause 25 and the Purchaser may apply such insurance proceeds in
such a manner as it deems fit and if permission to resume work is given,
an amount equal to the relevant insurance proceeds shall be disbursed to
the Contractor as if no suspension had occurred and the Purchaser shall
pay to the Contractor the extra costs, if any, incurred by the Contractor
in giving effect to such
suspension.
|
All
proceeds payable under the policy referred to in Clause 47.1.8 in respect of any
claim relating thereto shall only be paid in satisfaction of third party
liabilities covered by such policy.
|
47.3.7
|
The
Contractor shall ensure that all policies of insurances naming more than
one party as an insured shall contain a waiver of subrogation clause
applying to each insured party. Such policies shall also
contain a clause stating that the breach of a policy term, condition or
warranty, expressed or implied, by one insured shall not prejudice the
cover granted by the policy to any other insured who has not breached the
term, condition or warranty.
|
|
47.3.8
|
In
respect of all insurances required to be effected by the Contractor
pursuant to Clause 47.1, the Contractor shall produce certificates of
insurance, the receipts for premiums or other satisfactory evidence of the
continued validity of insurance cover to the Purchaser, upon written
request, within a reasonable time from receiving such
request.
|
|
47.3.9
|
Not
Used.
|
|
47.3.10
|
If
the period of the Construction/Erection All Risks (CEAR) Insurance
referred to in Clause 47.1.6 and/or of the Comprehensive General Liability
Insurance in Clause 47.1.8 is extended to cover the extended period of the
Defects Liability Period pursuant to Clauses 36.3 and 36.4, the Contractor
shall be responsible for any extra premium incurred for such
extension.
|
82
|
47.3.11
|
Not
Used
|
|
47.3.12
|
The
Contractor shall make best efforts to ensure that the policies of
insurance described in Clause 47.1 contain provisions to the effect that
the insurer shall not be entitled to terminate the policies in the event
of termination of the Contract or part thereof, solely as a result of the
termination of the Contract. Such provision shall cause the
insurance to continue in force until its expiry in respect of the interest
of the Purchaser and the Engineer.
|
|
47.3.13
|
The
Contractor shall comply and make best efforts to ensure its Subcontractors
strictly comply with the terms and conditions of the insurances and all
reasonable requirements of the insurers in connection with the settlement
of claims, the recovery of losses and the prevention of
accidents. The Contractor shall indemnify the Purchaser from
any loss or damage due to non-compliance with the terms and conditions of
the insurance by the Contractor and/or its
sub-contractors.
|
|
47.3.14
|
The
Contractor and the Purchaser agree that, notwithstanding the provisions of
Clause 47, in the event that the final agreed and accepted insurance
policies are in any way in variance with the requirements and provisions
contained in Clause 47 then, subject to the written agreement of the
Purchaser and the Contractor, the conditions of the final agreed and
accepted insurance policies shall take
precedence.
|
|
48
|
Remedy on Failure to
Insure
|
If the
Contractor shall fail to effect and keep in force the insurance for which it is
responsible in accordance with Clause 47, the Purchaser may obtain and keep in
force any such insurance and pay the premiums thereon as may be necessary for
that purpose, and the Contractor shall upon demand reimburse the actual cost of
effecting such insurance cover to the Purchaser, failing which the Purchaser
shall be entitled to deduct such costs from the Contract Price.
|
49
|
Force
Majeure
|
|
49.1
|
Instances of Force
Majeure
|
An "event
of Force Majeure" shall mean any circumstance not within the reasonable control,
directly or indirectly, of the Party affected, but only if and to the extent
that (i) such circumstance, despite the exercise of reasonable diligence, cannot
be or be caused to be prevented, avoided or removed by such Party, (ii) such
event materially adversely affects (in cost and/or time) the ability of the
Party to perform its obligations under the Contract, and such Party has taken
all reasonable precautions, due care and reasonable alternative measures in
order to avoid the effect of such event on its ability to perform its
obligations under the Contract and to mitigate the consequences thereof, (iii)
such event is not the direct or indirect result of the failure of such Party to
perform any of its obligations under the Contract, and (iv) such Party has given
the other Party prompt notice describing such event, the effect thereof and the
actions being taken in order to comply with this Clause 49.
The
events of Force Majeure comprise:
|
|
(a)
|
Non-Political
Event;
|
|
|
(b)
|
Direct
Malaysian Political Event; and
|
|
|
(c)
|
Indirect
Political Event,
|
all as
defined hereunder.
83
"Non-Political Event" shall
include, but not limited to, the following events to the extent that an event or
its consequence (it being agreed that if a causing event is within the
reasonable control of a Party affected, the consequence thereof shall be deemed
to be within the control of the Party affected) satisfy the first paragraph of
this Cause 49.1;
|
|
(i)
|
the
effect of any natural element or other act of God, including but not
limited to any storm, flood, lightning, earthquake, cyclone, landslide,
subsidence, volcanic eruption or other natural
disaster;
|
|
|
(ii)
|
fire
or explosion, accidents in each case not being due to (A) inherent defects
of the equipment comprising the Project, (B) the failure to operate the
Project in accordance with the Good Manufacturing Practices or (c)
circumstances within the reasonable control of the affected Party's
contractors; and
|
|
|
(iii)
|
epidemic,
famine or plague;
|
|
|
(iv)
|
radioactive
contamination or ionizing radiation;
and;
|
|
|
(v)
|
any
act, event or circumstance of a nature analogous to the
foregoing.
|
"Direct Malaysian Political
Event" comprises:
|
|
(i)
|
GOM's,
or any Governmental Instrumentality of Malaysia's unreasonable delay,
denial or refusal to grant or renew, or any unreasonable revocation of any
required Consent, provided that such adverse governmental action or
inaction did not result from the non-compliance with any applicable law
(other than laws of Malaysia resulting from Change in Law) or any
condition to the granting or maintenance of any such Consent that was in
effect on the date of the initial drawdown from any debt facility to be
provided in accordance with the financing agreements entered into by the
Party for purposes of this Contract, of which performance is adversely
affected by the occurrence of such an
event;
|
|
|
(ii)
|
a
Change in Law or change in interpretation of any law of Malaysia after the
date of this Contract adversely affecting the performance of this Contract
by either Party;
|
|
|
(iii)
|
with
respect to the Purchaser only, the expropriation or compulsory acquisition
by GOM, or any Governmental Instrumentality of Malaysia of (i) any shares
in the Purchaser if the result would be to acquire control of the
Purchaser or such a contractor, or (ii) any assets or rights of the
Purchaser; or any other act of GOM or any Governmental Instrumentality of
Malaysia materially and adversely affecting the performance by the
Purchaser of any of its obligations pursuant to the
Contract;
|
|
|
(iv)
|
any
interruption in the supply of feedstock resulting from the action or
inaction of GOM, or any Governmental Instrumentality of Malaysia;
or
|
|
|
(v)
|
any
event or circumstance or a combination of the same of a nature analogous
to any of the foregoing.
|
"Indirect Political Events"
comprising:
|
|
(i)
|
act
of war (whether declared or undeclared), sabotage, terrorism or act of a
public enemy (including the acts of any independent unit or individual
engaged in activities in furtherance of a program of irregular warfare),
acts of belligerents or foreign enemies (whether accorded diplomatic
recognition or not), war, blockages, civil disturbance, revolution,
rebellion or insurrection, riot, exercise of military or usurped power, or
any attempt at usurpation of power;
|
84
|
|
(ii)
|
strikes,
or similar labour difficulties (excluding such events which are site
specific and attributable to the Contractor) that are not primarily
motivated by a desire to improve compensation or working conditions of
those involve.
|
|
49.2
|
Effect of Force
Majeure
|
|
|
(a)
|
Except
as provided below if the Parties do not reach an agreement as to the
continuation and completion of any part or parts of the Works, either
Party shall be excused from performance to the extent its performance
hereunder is affected by such event of Force Majeure and the affected
Party shall not be construed to be in default in respect of any obligation
hereunder for so long as the failure to perform such obligation shall be
due to an event of Force Majeure.
|
|
|
(b)
|
If
an event of Force Majeure shall have occurred that results in a material
delay in the completion of the Project or causes material damage to the
Plant and such event of Force
Majeure:
|
|
|
(i)
|
is
of a type not normally insured against by entities engaged in activities
substantially similar to those engaged in by the Purchaser, is not
required to be insured against in accordance with the Good Manufacturing
Practices, and in fact has not been insured against by the Purchaser or
the Contractor in accordance with Clause 47;
or
|
|
|
(ii)
|
could
not be insured against by the Purchaser or the Contractor prior to the
time of its occurrence;
|
then in
either case for a period ending six (6) months after the end of such event of
Force Majeure, the Parties shall enter into good faith negotiations regarding an
adjustment of the Contract Price, notwithstanding that the Contractor may have
been granted under Clause 33.1 an extension of the Time for Completion of the
Works. During such period, the Contractor shall not be required to
complete the Project or to repair the Plant, as the case may be, and such
failure to complete the Project or repair the shall not constitute a Contractor
Remediable Event or Contractor Non-Remediable Event until the Parties have
agreed upon an adjustment of the Contract Price. If the Parties do
not reach such agreement within six (6) months after the end of such event of
Force Majeure, the Purchaser may terminate the Contract in accordance with
Clause 46.2.1 provided that the Purchaser shall have paid to the Contractor the
Costs reasonably incurred and demonstrated by the Contractor from the occurrence
of the event of the Force Majeure until the termination of the
Contract.
During
any such period, if requested by the Purchaser and agreed by the Contractor, the
Contractor shall perform such portions of the Works as the Purchaser may
request, subject to the Purchaser and the Contractor agreeing on appropriate
compensation therefor. Any Works so performed shall be factored into
the price adjustment referred to above.
|
|
(c)
|
If
an event of Force Majeure described in item (ii) under the Direct
Malaysian Political Event in Clause 49.1 shall have occurred, Clause 49.5
shall be applied for purpose of determining adjustments, if any, in the
Contract Price or otherwise.
|
|
49.3
|
Certain Events not
Excused
|
Notwithstanding
that an event of Force Majeure otherwise exists, the provisions of this Clause
49 shall not excuse:
85
|
|
(a)
|
Late
payment of money;
|
|
|
(b)
|
Late
delivery of equipment or materials or any delay in the Works caused by
negligent acts or omissions on the part of the Contractor, or any of its
Subcontractors;
|
|
|
(c)
|
Late
performance by the Contractor caused by the Contractor's failure to engage
qualified sub-contractors and suppliers or to hire an adequate number of
personnel or labour;
|
|
|
(d)
|
Submission
of documents for approval by GOM or Government of Malaysia Instrumentality
at such a time which does not leave sufficient time to permit review
thereof;
|
|
|
(e)
|
a
labour dispute involving the Contractor and its personnel or its
Subcontractors.
|
|
49.4
|
Notice of Force
Majeure; Procedure
|
As soon
as possible following the date of occurrence of any event of Force Majeure, if
either Party desires to invoke such event of Force Majeure as a cause for delay
in the performance or non-performance of any obligation (other than the payment
of money) hereunder, it shall advise the other Party in writing of such date and
the nature and expected duration of such event of Force Majeure. As
soon as possible but no later than seven (7) days (or longer as may be necessary
in case of communication breakdown) following the termination of such event of
Force Majeure, the Party having invoked such event of Force Majeure as a cause
of such delay shall submit to the other Party reasonable proof of the nature of
such delay and its initial estimated effect upon the time of
performance. If the Contractor is the Party serving such notice as a
result of the occurrence of a Direct Malaysian Political Event or an Indirect
Political Event, the initial notice shall be submitted as soon as it is
practically possible following the occurrence and the notice shall include
reasonable particulars of:
|
|
(i)
|
the
nature of such a Direct Malaysian Political Event or an Indirect Political
Event, which is the subject of any claim for relief under this
Contract;
|
|
|
(ii)
|
the
effect which such a Direct Malaysian Political Event or an Indirect
Political Event is likely to have on the Contractor's performance of its
obligations under this Contract;
|
|
|
(iii)
|
the
measures which the Contractor is taking, or proposes to take, to alleviate
the impact of such a Direct Malaysian Political Event or an Indirect
Political Event; and
|
|
|
(iv)
|
any
other information relevant to the Contractor's
claim,
|
and the
Contractor shall supplement the aforementioned initial notice with more accurate
information as soon as reasonably possible thereafter.
For so
long as the Contractor continues to claim to be affected by a Direct Malaysian
Political Event or an Indirect Political Event, it shall keep the Purchaser
advised in writing of any significant developments relating to such a Direct
Malaysian Political Event or an Indirect Political Event, and such other
information as the Purchaser may reasonably request about the Contractor's
claim.
The
Parties shall use their best efforts:
|
|
(i)
|
to
prevent and reduce to a minimum and mitigate the effect of any delay
occasioned by any event of Force Majeure including recourse to alternate
acceptable sources of services, equipment and materials;
and
|
86
|
|
(ii)
|
to
ensure resumption of normal performance of this Contract after the
termination of any event of Force Majeure and shall perform their
obligations to the maximum extent practicable agreed between the
Parties.
|
An event
of Force Majeure affecting a portion of the Works only shall not excuse the
Contractor's failure to timely complete the unaffected portions of the
Works.
|
49.5
|
Consequences of Change
in Law
|
|
|
(a)
|
Subject
to item (e) of this Clause 49.5, in the event that either Party believes
that a Change in Law shall have occurred that has or will result in a
material Change in Law Cost or Savings, such Party shall promptly deliver
to the other Party a notice (a "Notice") identifying such Change in Law
and the net amount of Change in Law Cost or Savings that have resulted or
are reasonably expected to result from such Change in Law, subject in any
event to the obligation of the Contractor to minimise such Change in Law
Costs and to maximise such Savings in accordance with Good Manufacturing
Practices. Such Party may from time to time deliver to the
other Party additional Notices with respect to any Change in Law, provided
that any such additional Notice shall be given not later than one (1) year
after the Party giving such Notice knew of or should have known of such
additional Change in Law Costs or realisation of such additional Savings
resulting from the occurrence of the Change in
Law.
|
|
|
(b)
|
Within
seven (7) days following the receipt of any Notice, the Parties shall meet
to discuss the subject matter of such Notice. If within
fourteen (14) days after the commencement of such discussions, either
Party disputes any of the contents of the Notice, such Dispute may be
referred to Arbitration in accordance with the provisions of Clause 50.3
of the Contract.
|
|
|
(c)
|
To
the extent that a claim for material Change in Law Costs or Savings
resulting from the occurrence of a Change in Law is not disputed or has
been allowed by the expert, the Contract Price shall be reasonably
adjusted.
|
The
adjustment of the Contract Price is intended that the Contractor should be in
the same position as the one it found himself prior to such a
change.
If within
thirty (30) days following the allowance of or agreement upon any claim for
material Change in Law Costs or Savings, the Parties are unable to agree on the
adjustment of the Contract Price, the Dispute may be referred to Arbitration in
accordance with the provisions of Clause 50.2 of the Contract.
|
|
(d)
|
The
Contractor agrees that no notice shall be given by him in respect of a
Change in Law unless the effect of such Change in Law and any preceding
Changes in Law applied over the term of this Contract results either in an
aggregate increase in liability of the Contractor of more than RM 250,000
(Two Hundred and Fifty Thousand only)or results in Savings of more than RM
250,000 (Two Hundred and Fifty Thousand only) in the aggregate under the
Contract.
|
|
50
|
Disputes and
Arbitration
|
|
50.1
|
Mutual
Discussions
|
If any
dispute or difference of any kind whatsoever including for the avoidance of
doubt a dispute or difference in relation to a decision or approval given by the
Engineer (a "Dispute") shall arise between the Parties in connection with, or
arising out of, this Contract, or the breach, suspension, termination or
validity hereof, the Parties shall attempt, for a period of thirty (30) days (or
such shorter period as the Parties may agree) after the receipt by one Party
from the other Party of notification of a Dispute to settle such Dispute in the
first instance by mutual discussions between the Parties.
87
|
50.2
|
Not
Used
|
|
50.3
|
Arbitration
|
|
50.3.1
|
If
the Dispute cannot be settled within thirty (30) days by mutual
discussions as contemplated by Clause 50.1, the Dispute shall finally be
settled by an arbitral tribunal (the "Tribunal") under the auspices and in
accordance with the rules of the Singapore International Arbitration
Centre ("SIAC") in effect on the date of this Contract (the "Arbitration
Rules"), which rules are deemed to be incorporated by reference into this
Clause. The Tribunal shall consist of three arbitrators who
shall be appointed in accordance with the Arbitration
Rules. Both Parties undertake to implement the arbitration
award. The venue of the arbitration shall be Singapore and the
seat of the arbitration shall be Singapore. The language of the
arbitration shall be English.
|
|
50.3.2
|
The
award rendered shall apportion the costs of the arbitration in the manner
provided for in the Arbitration Rules referred to
above.
|
|
50.3.3
|
Not
Used
|
|
50.3.4
|
Any
award rendered in any arbitration commenced hereunder shall be final and
binding upon the Parties and judgement thereon may be entered in any court
having jurisdiction for its
enforcement.
|
The
Parties hereto waive any rights to appeal or to review of such award by any
court or tribunal.
|
50.3.5
|
Pending
final resolution of any Dispute, the Parties shall continue to perform
their respective obligations hereunder to the extent such obligations are
not being disputed in good faith, provided however that the Contractor
shall not be obliged to continue with the performance of its obligations
in Dispute during arbitration proceedings if Disputes have arisen in
respect of adjustments to the Contract Price or terms of payment relating
to Variation and at the relevant time all amounts then in dispute exceed
in the aggregate Malaysian Ringgit 1,000,000 (One Million
Only). If such Dispute is finally resolved in favour of the
Purchaser, then unless agreed otherwise the Contractor shall not be
excused for any delay due to its non performance of the disputed
obligations. Upon resolution of any Dispute requiring the
payment of money by one Party to the other Party, any such payment shall
include interest at the 300 basis points above Base Lending rate hereof
from the date such amount was due up to the date of such
payment.
|
|
51
|
Applicable
Law
|
The
Contract shall in all respects be governed by and interpreted in accordance with
the laws of Malaysia.
|
52
|
Miscellaneous
|
|
52.1
|
Language
|
This
Contract is being executed and delivered in the English language and all
modification, amendments, waivers of any provision of this Contract, all
documents, notices and communications between the Parties under this Contract
shall be in the English language.
88
|
52.2
|
Severability of
Provisions
|
A holding
of any court of competent jurisdiction or by an arbitral tribunal under Clause
50 that any provision of this Contract is invalid or unenforceable shall not
result in invalidation of the entire Contract. Instead, this Contract
shall be construed, if possible, in a manner to give effect by means of valid
provisions to the intent of the Parties to the particular provision or
provisions held to be invalid, and, in any event, all other terms shall remain
in full force and effect. Following any such holding, the Parties
shall negotiate in good faith new provisions to restore, as best as possible,
the original intent and effect of this Contract.
|
52.3
|
Waiver
|
Save
where it appears to the contrary in this Contract, neither Party shall be deemed
to have waived any right under this Contract, unless such Party shall have
delivered to the other Party a written waiver signed by an authorized officer of
such waiving Party. No delay or omission in the exercise of any power
or remedy shall be construed to be a waiver of any default or an acquiescence
therein.
|
52.4
|
Amendment
|
This
Contract may only be amended or modified by a written instrument signed by each
of the Parties.
|
52.5
|
Entire
Agreement
|
This
Contract constitutes the entire agreement between the Purchaser and the
Contractor concerning the subject matter hereof. All previous
documents, undertakings and agreements, whether verbal, written or otherwise,
between the Parties concerning the subject matter hereof are hereby cancelled
and shall not affect or modify any of the terms or obligations set forth in this
Contract, except as the same may be made part of this Contract in accordance
with its terms, including the terms of any of the Appendices, Schedules and
Annexures. The Appendices, Schedules and Annexures are hereby made an
integral part of this Contract and shall be fully binding upon the
Parties.
|
52.6
|
Further Acts and
Assurances
|
Each of
the Parties agree to execute and deliver all such further instruments, and to do
and perform all such further acts and things, as shall be necessary or
convenient to carry out the provisions of this Contract.
|
52.7
|
Expenses
|
Each
Party shall pay its own costs and expenses (including, without limitation, the
fees and expenses of its agents, representatives, advisors, counsel and
accountants) necessary for the negotiation, preparation, execution, delivery,
performance of and compliance with this Contract.
|
52.8
|
Assignment
|
Neither
party shall assign the whole or any part of the Agreement or any benefit or
interest in or under the Agreement. However either
Party:
|
|
i.
|
may
assign the whole or any part with the prior agreement of the other Party,
at the sole discretion of such other Party,
and
|
89
|
|
ii.
|
the
Purchaser and the Contractor may, as security in favor of a bank or
financial institution, assign its right to any moneys due, or to become
due, under the Agreement, but otherwise shall not, without the consent of
the respective other party, assign the benefit of all or any of the
obligations under the Agreement and/or any benefit arising under or out of
the Agreement. Furthermore, the Purchaser and the Contractor
may assign the entire Agreement, but not any parts thereof, without
consent of the other party to a company of which the majority of the
capital is directly or indirectly held by the respective party or which
owns directly or indirectly, the majority of the capital of the party,
provided that the assigning party shall simultaneously with the
assignment, as prerequisite for the validity of the assignment, provide a
parent company guarantee for fulfilment of all obligations of the assignee
company arising out of or in connection with the
Agreement.
|
|
52.9
|
No
Partnership
|
Nothing
contained in this Contract shall be construed to create an association, trust,
partnership, or joint venture or impose a trust or partnership duty, obligation,
or liability on or with regard to either Party, or to create any duty, standard
of care or liability to any person or entity not a Party hereto. Each
Party shall be liable individually and severally for its own obligations under
this Contract.
|
52.10
|
Compliance with
Laws
|
In the
performance of their obligations under this Agreement, the Parties shall, and
shall cause their respective affiliates, officers, directors, agents and
employees to, comply strictly with all applicable laws, regulations and orders
of Malaysia and other applicable jurisdictions. The Parties hereby
acknowledge and agree that certain laws of Malaysia and of any other applicable
jurisdiction, prohibit, inter
alia, any direct or indirect payment of money or anything of value to any
government official, political Party, or candidate for political office for the
purpose of obtaining or retaining business. The Parties hereby
represent and warrant that, in the performance of their obligations hereunder or
otherwise in connection with the Project, they have not made, and will not make,
any such proscribed payment.
|
53
|
Additional Clauses for
Hardware and Software
|
|
53.1
|
Application of this
Clause
|
This
clause shall apply to the Integrated Control System (ICS) and other protection
and telemetry equipment using computers, microprocessors and software
specifically developed or designed for the Works or to integrate with
manufacturers standard equipment forming part of the Works and not being a
component part of manufacturers standard equipment.
The
Contractor's obligations under this Clause 53 are cumulative to and shall not
derogate from its obligations under the other provisions of these
Conditions.
|
53.2
|
Warranty and
Performance
|
The
Contractor warrants that the System shall fulfil the requirements from such a
system for the Biodiesel Project.
|
53.3
|
Steering
Meetings
|
The
Parties shall meet together with such frequency as may be desirable for the
purposes, inter alia, of monitoring progress of that part of the Works which
consists of the System, agreeing on a delivery schedule for the Hardware,
agreeing on the Functional Specification, the Software Systems Specification and
agreeing on the factory acceptance tests, site acceptance tests and the Tests on
Completion, including the factory acceptance therefore. Following
agreement in writing of the Software Systems Specification or any part thereof
by the Engineer no amendment thereto shall be made by the Contractor unless
specifically requested in writing so to do by the Engineer who shall signify its
approval thereof in writing.
90
|
53.4
|
Title to Standard
Software
|
Title to
and copyright in the Standard Software shall at all times remain vested in the
Contractor. The Contractor shall grant to the Purchaser the
non-exclusive, irrevocable right royalty free to use the Standard Software in
the System for the purposes of this Project. The Purchaser shall be
entitled to make such copies of the Standard Software as it may reasonably
require for its own internal use without the payment of any royalty to the
Contractor and will ensure that all such copies acknowledge the Contractor's
copyright therein and in the product thereof. The Purchaser shall
take all reasonable measures to safeguard the Contractor's rights in the
Standard Software.
|
53.5
|
Not
Used
|
|
53.6
|
Not
Used
|
|
53.7
|
Services
|
Following
Taking Over and for a period of three years thereafter, so long as the System
remains in use the Contractor shall offer to provide or to procure the provision
of services of maintenance and advisory and consultancy services for the
Hardware and Standard Software including the provision of an updating service
for the Standard Software. Such offer shall be on reasonable terms no
less advantageous to the Purchaser than the terms offered by the Contractor to
other customers.
|
53.8
|
Training
|
The
Contractor shall provide instruction in the use and maintenance of the Hardware
and Software and the System for the Purchaser's personnel and the personnel of
the operation and maintenance contractor appointed by the Purchaser in
accordance with the details given in the Contract.
|
53.9
|
Manuals and User
Documentation
|
The
Contractor shall provide as part of the Software all operation manuals, clerical
control manuals, fault-finding procedures, diagnostic programs and routines and
full operating and user manual documentation necessary for the use of the
System. Notwithstanding the passing of the Tests on Completion, the
Works shall not be deemed to have been completed until all such documentation
shall have been provided to the Purchaser prior to Taking Over.
|
53.10
|
Provisions Surviving
Final Certificates
|
The
provisions of Clauses 53.7 and 53.8 hereof shall where the context so requires
continue in full force and effect notwithstanding the issue of the Final
Certificate under Clause 39.
____________________________
91
APPENDICES
TO
THE
CONDITIONS
TO
ENGINEERING,
PROCUREMENT, CONSTRUCTION AND COMMISSIONING
CONTRACT
Mission
Biofuels Sdn Bhd
Continuous
Acid Conditioning and Silica Pretreatment, FFA pretreatment and Methyl Ester
Transesterification with biodiesel output of 750 tpd (250,000 tpa) and 98% pure
technical grade glycerin output of 82 tpd (27,308 tpa) along with associated
balance of plant at Kuantan Port, Malaysia
25
July, 2007
1
APPENDIX
1
SCOPE
OF WORKS
The scope
of work of KNM is basically divided into the following categories:
|
|
1.
|
Project
Management and Coordination
|
|
|
2.
|
Design
and Engineering
|
|
|
3.
|
Procurement
|
|
|
4.
|
Construction
|
|
|
5.
|
Commissioning
and Start-up
|
|
1.
|
Project Management and
Coordination
|
|
|
·
|
Discussion
with Client to confirm the scope of the
project.
|
|
|
·
|
Together
with Client and Technology Providers (Axens and Oiltek), develop the
proposed layout such as process units, offsites facilities, utilities,
buildings, piping connection and routing,
etc.
|
|
|
·
|
Coordination
with authorities for initial contacts for obtaining initial
approvals. However, preparation and approval of EIA shall be by
others.
|
|
|
·
|
Preparation
of package of works for tender and award to selected
contractors.
|
|
|
·
|
Provide
procurement assistance in selection of vendors, award and expediting
services.
|
|
|
·
|
Provide
construction supervision in guiding the nominated contractors and
fabricators in carrying out their
works.
|
|
|
·
|
Coordination
with Client's operation team for commissioning and start-up of the
plant.
|
|
2.
|
Design and
Engineering
|
The
design and engineering of the plant shall encompass the following:
|
|
·
|
Front
end engineering design (FEED)
|
|
|
·
|
Detailed
engineering
|
|
|
·
|
Project
Specifications
|
|
|
·
|
Shop
drawings and Approved for Construction
Drawings
|
|
|
·
|
As
built documents
|
The
engineering offices shall be located at the KNM head office in Seri Kembangan,
the Axens head office in France and the Oiltek office in Shah Alam.
The
following experienced personnel will be assigned for the
engineering:
|
|
·
|
Lead
mechanical engineer
|
|
|
·
|
Process
engineer
|
|
|
·
|
Lead
piping engineer
|
|
|
·
|
Lead
civil & structural engineer
|
|
|
·
|
Lead
electrical and instrumentation
engineer
|
The
detailed scope of work during this phase is as follows:
|
|
a.
|
Preliminary
Design Stage
|
|
|
·
|
Discuss
and confirm Client's requirements including data collection and review
available data.
|
2
|
|
·
|
Land
survey
|
|
|
·
|
Soil
investigation for design of foundation and site
preparation
|
|
|
·
|
Liaise
with relevant authorities to establish their requirements in connection
with infrastructure, mechanical and electrical work
design
|
|
|
·
|
Prepare
and plan general infrastructure
layout
|
|
|
·
|
Effectively
plan the design to optimize the
cost
|
|
|
·
|
Develop
preliminary civil & structural conceptual sketch proposals into sketch
designs to a stage sufficient for submission to authorities for approval
in principle to comply with relevant by-laws. Submissions to
authorities and all approvals shall be done by Client's Project Management
Consultant
|
|
|
b.
|
Design
Stage
|
|
|
·
|
For
the transesterification unit, Axens will provide preliminary layout,
process flow diagrams, heat & material balance, equipment data sheets,
P&IDs, instrumentation & control specifications and operating
instructions
|
|
|
·
|
For
the pretreatment unit, Oiltek will provide detailed plot plan, process
flow diagrams, equipment data sheets, P&IDs, instrumentation &
control specifications, piping and isometric layouts, foundation
drawings
|
|
|
·
|
Analyze
and design the civil and structural works of the
building
|
|
|
·
|
Select
and design the most suitable foundation
system
|
|
|
·
|
Design
all mechanical and electrical works including cold water & sanitary
plumbing, electrical, telephone and street lighting
services
|
|
|
·
|
Submit
M & E drawings to the relevant authorities for
approval
|
|
|
·
|
Arrangement
drawings with indications of static and dynamic loads for the design of
building and foundations
|
|
|
·
|
Flow
diagrams for process and utilities showing the main process flow, pipeline
sizes, valves and fittings and
instrumentation
|
|
|
·
|
Specifications
for piping, showing material of construction for pipes, valves and
fittings and miscellaneous items for the various
services.
|
|
|
·
|
Vessel
installation drawings showing the outline dimensions, connection
orientations and weights.
|
|
|
·
|
Electrical
schematic drawings and elementary wiring drawings showing the control of
the plant with process and safety
interlocks.
|
|
|
c.
|
Tender
Stage
|
|
|
·
|
Preparation
of tender documents for all civil, structural mechanical and electrical
works. Such documents to include contract conditions,
specifications and tender schedule as
necessary.
|
|
|
·
|
Calling
of tenders, taking into account the critical time of the project and the
need to coordinate building completion with equipment delivery
schedule.
|
|
|
·
|
Evaluation
of tenders and selection of
contractors.
|
|
3.
|
Procurement
|
|
|
·
|
Procurement
of plant machinery and equipment
|
|
|
·
|
Fabrication
of vessels and tanks
|
|
4.
|
Construction
Stage
|
|
|
·
|
Construction,
erection and installation of all civil, structural, mechanical,
electrical, instrumentation and piping works in accordance with design
drawings and specifications
|
3
|
|
·
|
Preparation
of any further design and specification necessary for contractors to carry
out the works
|
|
|
·
|
Site
meetings
|
|
|
·
|
Witness
testing and commissioning of M & E
works
|
|
|
·
|
Obtaining
approval from relevant authorities for C.
F.
|
|
|
·
|
Preparation
of final As-Built Drawings and O & M
manuals
|
|
|
·
|
Training
of Client's personnel.
|
|
5.
|
Commissioning and
Start-up Stage
|
|
|
·
|
Pre-commissioning
and flushing of all piping and
equipment
|
|
|
·
|
First
feed in
|
|
|
·
|
Commissioning
and plant start-up
|
|
|
·
|
Completion
of check list items
|
|
|
·
|
Issuance
of Certificate of Acceptance
|
|
6.
|
Quality
Assurance/Quality Control
|
In line
with ISO 9001:2000 requirements, a Project Quality Plan will be developed to be
implemented throughout the project. The plan shall identify the
quality objectives and provide a frame work to achieve those
objectives. Periodic audits will be planned and carried out to
confirm compliance to the procedures.
4
APPENDIX
2
CERTAIN
IMPORTANT TERMS
|
Matter
|
Clause
No
|
|||
|
Amount
of Performance Bond
|
1.1
|
10%
of the Contract Price and shall be reduced proportionately upon Taking
Over of any Project Section.
|
||
|
Validity
of Advance Payment Guarantee
|
1.1
|
Until
the issue of Payment Certificate in relation to Milestone No. 3 in the
Payment Schedule
|
||
|
Amount
of Advance Payment
|
1.1
|
25%
of Contract Price less Deposit
|
||
|
Time
for Completion
|
1.1,
32.1
|
14
months after the Commencement Date
|
||
|
Person
and address for service of notices etc.
|
10.1
|
the
Purchaser:
Xx.
Xxxxxx Xxxxxxxxxx, Managing Director Mission
Biofuels Sdn Bhd (Company Xx. 000000X), Xxxxx 00-0-0, 0xx Xxxxx Xxxxx XXX
Damansara 00 Xxxxx Xxxxxx 00000 Xxxxx Xxxxxx Xxxxxxxx
Fax:
the
Contractor:
Xx.
Xxx Xxxx Eng, Group Managing Director KNM
Process Systems Sdn Bhd (company number is 200140-X) Xx. 00, Xxxxx Xxxxxx
XX0/0, Xxxxx Xxxxxx Besi Indah, 43300 Seri Kembangan
Engineer:
Datuk
G Ramakrishnan
Konsultant
Process Sdn Bhd, 00, Xxxxx XX 00/0X, 00000 Xxxxxx Xxxx, Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx
Fax:
x00-0-00000000
|
||
|
Performance
Guarantees
|
13.1
|
See
Appendix 7
|
||
|
Minimum
Acceptable Performance
|
1.1,28.9
|
The
minimum
acceptable performance criteria
|
||
|
Criteria
|
in
case of Biodiesel, Pretreated Feedstock and/or Glycerine Output are 96% of
the relevant Guaranteed Output at guaranteed levels of utilities
consumptions as per Performance Guarantees in Appendix
7,
|
|||
|
Rate
of Liquidated Damages for Performance Guarantees
|
35
|
See
Appendix 7
|
||
|
Rate
of Liquidated Damages for Delay
|
34.1
|
Nil
for up to first 30 days of delay in the CTER Section; 0.2% of the Contract
Price for every week of delay (or part thereof) up to four weeks after the
first 30 days of delay and 0.5% of the Contract Price for every week of
delay (or part thereof)
thereafter;
|
5
|
Bonus
|
28.8
|
2.5%
of the Contract Price if the Final Performance Acceptance is achieved one
month ahead of schedule date.
|
||
|
Limit
of Liquidated Damages for Delay
|
34.2(a)
|
10%
of the Contract Price
|
||
|
Limit
of Liquidated Damages for Performance Guarantees
|
35.3
|
10%
of the Contract Price
|
||
|
Limit
of Total Liquidated Damages
|
44.3
|
10%
of the Contract Price
|
||
|
Percentage
Profit to be Added to Cost
|
|
41.2
|
|
10%
|
6
APPENDIX
3
NOT
USED
7
APPENDIX
4
PROGRAMME
8
APPENDIX
5
NOT
USED
9
APPENDIX
6
NOT
USED
10
APPENDIX
7
PERFORMANCE
GUARANTEES AND LIQUIDATED DAMAGES
PERFORMANCE GUARANTEES AT
SPECIFIED UTILITY CONSUMPTION
PRETREATMENT
PLANT
|
Capacity
|
:
|
800
Tons per 24 Hours of Crude Palm Oil with FFA of 5.0% Maximum (Palm
Oil)
|
|||
|
Process
Loss
|
:
|
The
total loss will not exceed
|
|||
|
a)
|
M
& I% + 1.15 x F.F.A. % +
0.1%+0.33 %(oil waste in spent earth)
|
||||
|
=
0.5% +1.15x5% +0.1%+0.33%
|
|||||
|
=
6.68%
|
|||||
|
Product
Quality :
|
|||||
|
FFA
|
:
|
Maximum
0.1%
|
|||
|
Phosphorous
content
|
:
|
Maximum
4 PPM
|
|||
|
Water
content
|
:
|
Maximum
1000 PPM
|
|||
|
PFAD
Quality
|
:
|
88%min
|
|||
|
The
above mentioned figures are based on freshly processed oil analysed
according to AOCS methods. Crude oil entering the system must
satisfy following specifications: -
|
|||||
|
Moisture
& Impurities
|
:
|
Maximum
0.5%
|
|||
|
FFA
|
:
|
Maximum
5%
|
|||
|
B-Carotene
|
:
|
Maximum
700 PPM
|
|||
|
Totox
|
:
|
Maximum
20
|
|||
|
Iron
|
:
|
Maximum
4 PPM
|
|||
|
Copper
|
:
|
Maximum
0.2 PPM
|
|||
|
*Phosphorous
content
|
:
|
Maximum
20 PPM
|
|||
|
Note:
Phosphorous for other feed oil type should be controlled below 8
PPM.
|
|||||
|
UTILITY
CONSUMPTION
|
|||||
|
Utilities
:
|
Approximate
figures per metric ton of feed, PALM, at 45 Degree C
during continuous operation at full capacity: -
|
||||
|
Motive
Steam at 8 xxxx
|
:
|
45
kg
|
|||
|
Agitation
steam for bleacher
|
:
|
2.5
kg
|
|||
11
|
Stripping
steam at 2 xxxx
|
:
|
5
kg
|
|
|
Heating
steam excluding steam for cake blowing
|
:
|
27
kg
|
|
|
Diesel
required for heater
|
:
|
4
kg (5% FFA)
|
|
|
Condensing
water at 32 degree C
|
:
|
5.8
m3 (circulation)
|
|
|
Cooling
water at 32 C and delta t of 10 degree C
|
:
|
3.5
m3 (circulation)
|
|
|
Electric
Power
|
:
|
3.2
kwh
|
|
|
Instrument
Air
|
:
|
5
Nm3/hr
|
|
|
Bleaching
Earth
|
:
|
5 -
10 kg (Tonsil Optimum FF or equivalent)
|
|
|
Phosphoric
acid, food grade, 85% concentration
|
:
|
0.4
- 0.6 kg
|
Note:
Additional steam for cake blowing is not included
CONTINUOUS
TRANSESTERIFICATION
As per
Section I of the Schedule (Technical Guarantees) of the Technology Transfer
Agreement between the Purchaser and Axens and assigned to the Contractor by the
Purchaser.
LIQUIDATED
DAMAGES AND BONUS FOR PERFORMANCE
Process
Guarantee
The
Contractor shall be responsible for the quality of the final products and the
throughput capacity under the condition that the Purchaser provides sufficient
quantity and quality of feed material, chemicals, and raw materials (as defined
in this Appendix above).
Should
the final product quality, as described in this Appendix not be attained and it
is determined that the Contractor is responsible for non-attainment, then the
Contractor is obligated to repair or replace at his choice and his costs those
parts of the plant which cause the insufficient result.
The
Contractor shall be responsible to demonstrate and to reach the Performance
Guarantees specified in Appendix 7 hereinabove for the quality of the final
products, throughput and consumption of utilities during the Tests on
Completion. These test results shall be duly
recorded. Should, the figures based on the results of the Tests on
Completion for quality, throughput (capacity) and utility consumption not be
achieved in accordance with Performance Guarantees, then the Contractor shall be
liable to the Purchaser the following penalties as calculated
below.
Except as
stated herein, the capitalised terms in this section below in this Appendix will
have the meaning assigned to them in the TTA between the Purchaser and Axens and
assigned to the Contractor by the Purchaser.
If,
during the last PERFORMANCES TEST PERIOD permitted under Section F-a of the
TTA:
|
|
1.
|
The
LICENSED UNIT has processed Cl% of the DESIGN CAPACITY instead of 100% as
guaranteed in Section I-4 a) above,
|
12
|
|
2.
|
The
yield of the UNIT has been Y1 instead of 100.0 % as guaranteed in Section
I-4 b) above,
|
|
|
3.
|
For
a certain number of properties of the FAME PRODUCT, the specification,
which is indicated in the table of Section I-3 a) and which is guaranteed
in Section I-4c) above, has not been
met,
|
|
|
4.
|
The
content of glycerol of the GLYCERIN PRODUCT has been CG instead of 97.5 as
guaranteed in Section 1-4 d) above,
|
|
|
5.
|
The
cooling water consumption and the steam consumption have been W and S
instead of 110 % as guaranteed in Section 1-4 e)
above,
|
the
following computation shall be made where (M1), (M2), (M3), (M4) and (M5) are
quoted in US Dollars and R is the Contract Price (as defined in the
Conditions):
(M1) =
R/10 x (100 – C1)
(M2) =
R/10 x (100 – Y1)
(M3) = n
x (R/50)
where n
is the number of properties of the FAME PRODUCT for which the guaranteed
specification has not been met
(M4) =
R/10 x (97.5 – CG)
(M5) = R
/ 50 x [(W – 110) + (S – 110)]
|
J-2
|
CATALYST Replacement
Computation
|
If the
CATA LIFE PERIOD is LP instead of LPG months as guaranteed in Section I-5 above
and the production of FAME PRODUCT has been PROD instead of PRODG, the following
computation shall be made where (CR) is quoted in kg.
(CR) = Q
x [(LPG - LP) / LPG, or
(CR) = Q
x [(PRODG - PROD) / PROGD],
whichever
is the smallest
where
:
Q is the
total load amount of CATALYST loaded in the LICENSED UNIT, in kg.
K
- SETTLEMENT
|
K-1
|
Should
any of the values (M1), (M2), (M3), (M4), (M5) be positive, the remedy
calculated under Section J-1 of this Agreement for the corresponding
guarantee will equal that amount.
|
|
K-2
|
Should
any of the values (M1), (M2),(M3), (M4), (M5) be nil or negative, LICENSOR
will be deemed to have satisfied the corresponding
warranty.
|
|
K-3
|
Should
(CR) be positive LICENSOR will deliver to LICENSEE as liquidated damages
and not as a penalty, ex-works place of manufacture at which time title to
and risk of loss shall pass to LICENSEE, the quantity of CATALYST
determined above and manufactured at LICENSOR' production
plant. Any tax and other governmental charge upon such
replacement CATALYST imposed by the authorities of LICENSEE's country
shall be paid by LICENSEE.
|
13
APPENDIX
8
PAYMENT
SCHEDULE
|
Milestone No.
|
Description of Milestone
|
Amount of Payment Due
|
||
|
1
|
Execution
of the Contract
|
RM
2,000,000 as Deposit
|
||
|
2
|
Provision
of the Performance Bond, the Advance Payment Guarantee and the Corporate
Guarantees
|
25%
of Contract Price less Deposit as Advance Payment
|
||
|
3
|
Completion
of all piling works for the process plant, i.e. excluding balance of plant
OR expiry of 5 months from the Execution Date, whichever is
later
|
25%
of Contract Price
|
||
|
4
|
Mechanical
Completion
|
25%
of the Contract Price
|
||
|
5
|
|
Final
Performance Acceptance of the Plant and provision of Retention Bond equal
to 5% of the Contract Price
|
|
25%
of the Contract Price
|
14
APPENDIX
9
SITE
Site is
located in Kuantan Port, Mukim Sungai Karang, District of Kuantan, Pahang Darul
Makmur, Malaysia
15
APPENDIX
10
NOT
USED
16
APPENDIX
11
NOT
USED
17
APPENDIX
12
NOT
USED
18
APPENDIX
13
PURCHASER'S
INPUT
Crude
Palm Oil
The crude
Palm Oil must have the following minimum performance
characteristics:
|
Acidity:
|
5.0%
FFA maximum
|
|
An
Value, maximum
|
2
ppm
|
|
Phosphorous,
total:
|
20
ppm maximum
|
|
Phosphorous,
non-hydratable:
|
5
ppm maximum
|
Methanol
Methanol
shall be supplied with a minimum purity of 99.85%.
19
APPENDIX
14
FORM
OF PERFORMANCE BOND
WHEREAS:
KNM
Process Systems Sdn Bhd, ("the Contractor") has by an agreement made between
Mission Biofuels Sdn Bhd ("the Purchaser") of the one part and the Contractor of
the other part entered into a Contract ("the Contract") for the design,
construction and completion of a Continuous Acid Conditioning and Slica
Pretreatment, FFA pretreatment, Methyl Ester Transesterification plant with
biodiesel output of 750 tpd (250,000 tpa) and 98% pure technical grade Glycerin
output of 82 tpd (27308 tpa) with all associated balance of plant project at
Kuantan Port, Malaysia, as more fully described in the said Contract ("the
Biodiesel Project") and for the consideration of payment for the amount stated
therein ("the Contract Price"), subject to the provisions of the
Contract. Any capitalised terms used and not defined herein shall
have the meanings attributed thereto in the Contract.
BY THIS
BOND we [bank
name] of (hereinafter
called "the Surety") are held and firmly bound unto the Purchaser in the sum of
[ ] being
[ten per cent (10%)] of the Contract Price ("the Guaranteed Sum") for the
payment of which sum the Surety binds itself; its successors and assigns by
these presents and hereby irrevocably and unconditionally guarantees to pay to
the Purchaser forthwith upon the Purchaser's written demand or demands, provided
that such demand does not exceed Guaranteed Sum, without objection or
contestation whatever on our part and without the Purchaser having to assign any
reason whatsoever for such demand and without any proof or conditions, the
amount specified in such demand within 3 (three) days from the date of receipt
of the said demand notwithstanding any objection on the part of the Contractor
and irrespective of whether or not there is any dispute between the Contractor
and the Purchaser in respect of or relating to the Contract or in respect of any
other matter and whether or not such said dispute, if any, has been settled,
litigated or adjudicated otherwise howsoever. The Purchaser may make
more than one demand hereunder.
This Bond
shall be valid as of the Commencement Date and shall be null and void 30
(thirty) days after our receipt of your Taking Over Certificate to the effect
that the Final Performance Acceptance for the Plant has occurred (hereinafter
referred to as "Validity Period'), and thereupon the original of this Bond shall
be returned to the Contractor.
Our
obligations hereunder shall not be affected by any act, omission, matter or
thing, which, but for this provision might operate to release or otherwise
exonerate us from our obligations hereunder in whole or in part, including
without limitation and whether or not known to us or you:
|
(a)
|
any
time or waiver granted to the Contractor or any other
person;
|
|
(b)
|
the
taking, variation, compromise, renewal or release of or refusal or neglect
to perfect or enforce any rights, remedies or securities against the
Contractor or any other person;
|
|
(c)
|
any
legal limitation, disability or incapacity relating to the Contractor or
any other person;
|
|
(d)
|
any
variation of or amendment to the Contract or the works to be performed
thereunder or any other document or security so that references to the
Contract in this Bond shall include each such variation and amendment;
and
|
|
(e)
|
any
un-enforceability, invalidity or frustration of any obligations of the
Contractor or any other person under the Contract or any other document or
security.
|
Your
right to make demands on us under this Bond shall be an independent right and
shall be without prejudice to any other rights that you may have under the
Contract.
20
All
demands, if any, in respect of this Bond shall be made in writing and received
by us within the Validity Period, failing which all our liabilities and
obligations on this Bond shall be deemed to be completely absolved thereafter,
notwithstanding that the original of this Bond is not returned to us for
cancellation. The retention of this Bond after the Validity period
does not confer any rights upon you. This Bond shall be governed by
and construed in accordance with the laws of Malaysia and the Malaysian courts
shall have jurisdiction to try any matter relating to this Bond.
The
benefit of this Bond may be assigned by you to your financiers as collateral
security subject to our prior consent, which consent shall not be unreasonably
withheld and any other assignment shall be subject to our prior
consent.
Signed on
behalf of the Surety and dated the
day of 2007.
Signed
for
and on
behalf of
[ ]
in the
presence of:
21
APPENDIX
15
FORM
OF ADVANCE PAYMENT GUARANTEE
To: Mission
Biofuels Sdn Bhd
|
From:
|
Bank
|
Dear
Sirs,
Advance Payment Guarantee
Number
We are
informed that KNM Process Systems Sdn Bhd (hereinafter called "the Contractor")
has entered into a contract ("the Contract") with you for the design,
construction and completion of a Continuous Acid Conditioning and Rica
Pretreatment, FFA pretreatment, Methyl Ester Transesterification plant with
biodiesel output of 750 tpd (250,000 tpa) and 98% pure technical grade Glycerin
output of 82 tpd (27308 tpa) with all associated balance of plant project at
Kuantan Port, Malaysia, as more fully described in the said Contract, ("the
Biodiesel Project") and that under the terms of the Contract the payments you
are to make to the Contractor will include the sum of
[ ] as an
advance payment ("the Advance Payment") on the delivery, amongst others, of this
Guarantee. Any capitalised terms used and not defined herein shall
have the meanings attributed thereto in the Contract.
In
consideration of your agreement to make the Advance Payment above to the
Contractor, we the Bank hereby irrevocably and unconditionally guarantee to pay
to you any amount or amounts demanded by you not exceeding in aggregate
[ ]
("the Guarantee Sum") on receipt of your first demand in writing without
objection or contestation whatever from our part or from the Contractor without
the necessity on your part to pursue or exhaust any remedy against the
Contractor and notwithstanding that the Contract may be unenforceable in whole
or in part and irrespective of whether or not there is any dispute between the
Contractor and the Purchaser in respect of or relating to the Contract or in
respect of any other matter and whether or not such said dispute, if any, has
been settled, litigated or adjudicated otherwise howsoever. You may
make more than one demand hereunder provided that the sum total of all demands
shall not exceed the Guaranteed Sum.
Our
obligations hereunder shall not be affected by any act, omission, matter or
thing which but for this provision might operate to release or otherwise
exonerate us from our obligations hereunder in whole or in part, including
without limitation and whether or not known to us or you:
|
(a)
|
any
time or waiver granted to the Contractor or any other
person;
|
|
(b)
|
the
taking, variation, compromise, renewal or release of or refusal or neglect
to perfect or enforce any rights, remedies or securities against the
Contractor or any other person;
|
|
(c)
|
any
legal limitation, disability or incapacity relating to the Contractor or
any other person;
|
|
(d)
|
any
variation of or amendment to the Contract or the works to be performed
thereunder or any other document or security so that references to the
Contract in this Guarantee shall include each such variation and
amendment; and
|
|
(e)
|
any
un-enforceability, invalidity or frustration of any obligations of the
Contractor or any other person under the Contract or any other document or
security.
|
This
Guarantee shall come into force upon receipt by the Contractor of the Advance
Payment and shall be null and void upon your written confirmation to us that the
payment under Milestone No. 3 for payment of Part C Price as per the Payment
Schedule of the Contract has been made to the Contractor (hereinafter referred
to us the "Validity Period") and thereupon this Guarantee in original shall be
returned to the Contractor.
22
All
demands, if any, in respect of this Guarantee shall be made in writing and
received by us within the Validity Period, failing which all our liabilities and
obligations on this Guarantee shall be deemed to be completely absolved
thereafter, notwithstanding that the original of this Guarantee is not returned
to us for cancellation. The retention of this Guarantee after the
Validity period does not confer any rights upon you. This Guarantee
shall be governed by and construed in accordance with the laws of Malaysia and
the Malaysian courts shall have jurisdiction to try any matter relating to this
Guarantee.
The
benefit of this Guarantee may be assigned by you to your financiers as
collateral security and any other assignment shall be subject to our prior
consent.
IN
WITNESS whereof we have duly executed this Guarantee this
day of
2007.
Signed
for and on behalf of [Bank]
in the
presence of:
23
APPENDIX
16
FORM
OF PARENT COMPANY GUARANTEE
THIS DEED
OF GUARANTEE is made on
[ ]
between:
|
1.
|
Mission
Biofuels Sdn Bhd, a company formed and incorporated in Malaysia under the
[Malaysian Companies Act] and having its registered office at ,
hereinafter referred to as the "Company" (which expression shall, unless
repugnant to the context or meaning thereof, include its successors and
permitted assigns); and
|
|
2.
|
KNM
Group Berhard a company organised and existing under the laws of Malaysia
with its registered office at
(the "Guarantor"),
|
(hereinafter
collectively referred to as the "Parties" and "Party" shall mean either of
them).
WHEREAS:
|
(A)
|
This
Deed is supplemental to a Contract dated
day of
2007 and made between the Purchaser and KNM Process Systems Sdn Bhd (the
"Contractor") inter alia, for the design, manufacture, supply, execution,
erection, construction, installation, completion, testing and
commissioning of a Continuous Acid Conditioning and Slica Pretreatment,
FFA pretreatment , Methyl Ester Transesterification plant with biodiesel
output of 750 tpd (250,000 tpa) and 98% pure technical grade Glycerin
output of 82 tpd (27308 tpa) with all the associated balance of plant
project at Kuantan Port, Malaysia.
|
|
(B)
|
The
Guarantor is the holding company of the
Contractor.
|
|
(C)
|
The
Guarantor has agreed to guarantee the performance of the Contractor's
obligations under the Contract.
|
IT IS
AGREED as follows:
|
1.0
|
REPRESENTATIONS
AND WARRANTIES
|
The
Guarantor represents, covenants and agrees to and with Purchaser
that:
|
|
(a)
|
it
is a corporation duly organised, validly existing and in good standing
under the laws of Malaysia and it is duly qualified and in good standing
in each jurisdiction where the failure to so qualify and be in good
standing would materially and adversely affect its ability to perform its
obligations under this Guarantee and that it will maintain its existence
and remain in good standing under the laws of Malaysia and of any other
jurisdiction if the failure to do so would have a material adverse effect
on its ability to perform any of its obligations
hereunder;
|
|
|
(b)
|
the
execution and delivery of this Guarantee and its performance have been
duly authorised by all necessary corporate action on the part of Guarantor
and do not require any other corporate actions or proceedings or any
stockholder approval or consent of any trustee or holder of any
indebtedness of Guarantor;
|
|
|
(c)
|
this
Guarantee has been duly executed and delivered by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its
terms;
|
24
|
|
(d)
|
the
execution, delivery and performance of this Guarantee: (i) will not
violate any law or governmental approval or provision of any security
issued by the Guarantor or of any agreement, instrument or undertaking to
which the Guarantor is a party of by which it or any of its property is
bound, and do not require any licence, consent or approval of any
governmental authority; (ii) will not violate any provision of the
Guarantor's charter, by-laws or other governing documents; and (iii) will
not result in the creation or imposition of any lien upon any of
Guarantor's properties;
|
|
|
(e)
|
no
litigation, investigation or proceeding of or before any arbitrator or
governmental authority is pending or, to the Guarantor's knowledge,
threatened by or against the Guarantor or any of its subsidiaries or
against any of such parties' properties or revenues which, if adversely
determined, would be reasonably likely to have a material adverse effect
on the business, operations, property or financial condition of the
Guarantor or any of its subsidiaries;
and
|
|
|
(f)
|
it
owns indirectly all of the issued and outstanding shares of each class of
capital stock of Contractor.
|
|
2.0
|
GUARANTEE
|
|
2.1
|
In
consideration of the Purchaser agreeing to enter into the Contract, the
Guarantor absolutely, unconditionally and irrevocably guarantees to and
agrees with the Purchaser and its successors and assigns
that:
|
|
|
(a)
|
upon
the failure of the Contractor to make proper and punctual payment to the
Purchaser of any amounts from time to time due and payable by the
Contractor under the Contract the Guarantor will pay to the Purchaser each
such amount not paid by the Contractor, such payment by the Guarantor to
be made within seven days of written demand by the Purchaser to the
Guarantor and without set-off, counterclaim or condition of any kind
whatsoever, together with such additional amounts, if any, as may be
necessary to ensure that, after such withholdings or deductions as the
Guarantor may be required by law to make on account of taxes of any
nature, the amount received by Purchaser from Guarantor will be the same
amount as would have been received had such amount been duly paid by the
Contractor in accordance with the terms of the
Contract;
|
|
|
(b)
|
upon
the failure of the Contractor to carry out, observe and/or perform any
obligation in accordance with the Contract or any of the Contractor's
obligations contained in or arising from the Contract, the Guarantor will,
without any demand by the Purchaser, carry out, observe and perform these
obligations in accordance with the Contract;
and
|
|
|
(c)
|
the
Guarantor shall hold Purchaser and its successors and assigns harmless and
shall indemnify the Purchaser against all loss, damage, liability, claims,
demands, proceedings, costs and expenses, including reasonable attorneys'
fees, arising from (i) any failure by the Contractor to carry out, observe
and perform in accordance with the Contract any of the Contractor's
obligations contained in or arising from the Contract including defective
materials, workmanship or design by the Contractor (the "Contractor's
Obligations") or (ii) any failure by Guarantor to carry out, observe and
perform in accordance with this Guarantee any of Guarantor's obligations
contained in or arising from this
Guarantee.
|
|
2.2
|
The
Guarantor confirms that it is fully aware of and understands all of the
terms and conditions of the Contract and to the fullest extent permitted
by law waives:
|
|
|
(a)
|
notice
of the occurrence of a default under the
Contract;
|
|
|
(b)
|
notice
of any waivers, indulgences, extensions or consents granted to the
Contractor or any other surety;
|
25
|
|
(c)
|
any
requirement of diligence or promptness on the part of the Purchaser in the
enforcement of its rights or remedies against the Contractor or any other
person or against any security;
|
|
|
(d)
|
all
set-offs, counterclaims, presentments, demands for performance, notice of
non-performance, protests, notices of protests, notices of dishonour,
notices of any waivers or indulgence or extensions, notices of every kind
which may be required to be given by any statute or rule of law and notice
of acceptance of this Guarantee;
and
|
|
|
(e)
|
any
and all notices of every kind and description which may be required to be
given by any statute or rule or
law.
|
|
2.3
|
No
delay on the part of Purchaser, its successors or assigns in the exercise
of or failure to exercise, any right or remedy shall operate as a waiver
thereof, a waiver of any other rights or remedies or a release of
Guarantor from any obligations hereunder and no single or partial exercise
by Purchaser, its successors or assigns of any right or remedy shall
preclude any further exercise thereof or the exercise of any other right
or remedy.
|
|
2.4
|
Guarantor's
obligations hereunder shall not be affected by any act, omission, matter
or thing which but for this provision might operate to release or
otherwise exonerate Guarantor from its obligations hereunder in whole or
in part, and the obligations of the Guarantor shall not be impaired,
lessened or affected and shall continue to subsist notwithstanding any
such act, omission, matter or thing, including without limitation and
whether or not known to us or you:
|
|
|
(a)
|
any
amendment, addition or supplement to, or modification of (including
without limitation, Variations under the Contract) the
Contract;
|
|
|
(b)
|
any
action taken or not taken under the Contract in the exercise of any right
or power therein conferred;
|
|
|
(c)
|
the
taking, variance or release of any other guarantee or security at any time
for all or any of the Contractor's obligations or any failure or omission
on the part of the Purchaser to enforce any right conferred or required
thereby;
|
|
|
(d)
|
any
waiver by the Purchaser under the Contract of any condition therein
provided for;
|
|
|
(e)
|
the
merger or consolidation of the Contractor into or with any corporation or
other entity or the Contractor's loss of its separate corporate identify
or by any disability, incapacity or damage in status or constitution of
the Contractor or any sale or transfer by the Contractor to any other
person of all or any part of its property or any liquidation or
dissolution of the Contractor or the insolvency of the Contractor or any
receivership, administration, moratorium, composition or credits, claims
or other analogous events affecting the Contractor or its
property;
|
|
|
(f)
|
any
failure or omission on the part of the Purchaser under the Contract which
is against the interests of the Contractor or any corporate successor to
it, or any action by the Purchaser under the Contract granting indulgence
or extension of time for payment to the Contractor or any other
surety;
|
|
|
(g)
|
waiving
or acquiescing in any default or non-compliance by the Contractor or any
corporate successor to it;
|
|
|
(h)
|
any
legal limitation, disability, incapacity or other circumstances relating
to the Contractor or any other
person;
|
|
|
(i)
|
whether
or not the Contractor ceases to be a subsidiary or affiliate of
Guarantor;
|
26
|
|
(j)
|
any
frustration or lack of genuineness, legality, validity, regularity,
enforceability or value of the Contract, any of the Contractor's
obligations, or any other agreement, security or instrument relating
thereto; and
|
|
|
(k)
|
any
other dealing or any other circumstances whatsoever (with or without
notice to or knowledge of the Guarantor) which may or might in any manner
or to any extent affect or prevent recovery or performance of any of the
Contractor's obligations or otherwise vary the risk of the Guarantor under
this Guarantee or might otherwise constitute a legal or equitable
discharge of a surety or guarantor, it being the purpose and intent of the
Parties that this Guarantee and the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all
circumstances.
|
This
Guarantee and the obligations of Guarantor hereunder shall continue to be
effective or be automatically reinstated as the case may be, if at any time any
payment by or on behalf of Contractor is rescinded or must otherwise be restored
by Purchaser, its successors or assigns for any reason, as though such payment
by the Contractor had not been made in the first place.
|
2.5
|
The
Purchaser may, without affecting, limiting, modifying or discharging any
of the obligations of the Guarantor under this Guarantee, release the
whole or any part of any of the Contractor's obligations and with or
without legal, arbitration or other proceedings settle or compound
disputes or differences with the Contractor or make further agreements or
modifications with the Contractor or any liquidator, administrator,
receiver or administrative receiver or other person having authority in
relation to, the Contractor.
|
|
2.6
|
Without
prejudice to the Purchaser's rights against the Contractor as principal
debtor and obligor, the Guarantor shall, as between the Purchaser on the
one hand and the Guarantor on the other, be deemed principal debtor and
obligor in respect of its obligations under this Guarantee and not merely
surety. Accordingly, the Guarantor shall not be discharged, nor
shall its liability be affected, by any act, thing, omission or means
whatsoever whereby its liability would not have been discharged, if it had
been principal debtor or obligor, including, but without prejudice to the
generality of the foregoing, by reason of any provision of the Contract
being or becoming void, unenforceable or otherwise invalid under any
applicable law and notwithstanding that such disability may have been
known to the Purchaser.
|
|
2.7
|
Guarantor
hereby agrees that it will not exercise, and hereby irrevocably,
absolutely and unconditionally waives, any rights of subrogation,
contribution, reimbursement, indemnification, or other rights of payment
or recovery from any person for any payments made by it hereunder;
provided that such agreement not to exercise such rights and such waiver
thereof shall not apply to the extent that the exercise of such rights by
Guarantor could not reasonably be expected to materially and adversely
affect Purchaser's rights and interests hereunder or under the
Contract.
|
|
2.8
|
This
Guarantee shall be in addition to and shall not in any way be prejudiced
by any other security now or hereafter held by you as security for the
obligations of the Contractor under the
Contract.
|
|
3.0
|
NOTICES
|
Any
notice, request, instruction, correspondence or other document to be given by
one Party to another (collectively called "Notice") shall be in writing and
delivered personally, mailed by-first class post or by telex, as
follows:
27
|
|
To
the Guarantor:KNM Group Berhad
|
|
|
[Address]
|
|
|
[Location]
|
|
|
[Tel
No]
|
|
|
[Fax
No.]
|
To the
Purchaser:Mission Biofuels Sdn Bhd
Notice
given by personal delivery shall be effective upon actual receipt and notice
sent by registered mail shall be deemed to have been given three (3) days after
the date of sending. Notice given by facsimile shall be effective
upon actual receipt if received during the recipient's normal business hours, or
at the beginning of the recipient's next business day after receipt if not
received during normal business hours. Any Party may change its
address to which Notice is to be given to it or any of the details given about
in relation to it by giving Notice as provided above of such change of
address.
|
4.0
|
GOVERNING
LAW AND FORUM
|
|
4.1
|
The
construction, validity and performance of this Guarantee shall be governed
by [Malaysian/United States as the case may be] law. In the
event of any breach, differences or disputes of whatever nature arising
out of or relating to this Guarantee, the Parties irrevocably agree that
any suit, action, or proceedings may be brought in the
Court and the Guarantor hereby irrevocably submits to the non-exclusive
jurisdiction of such Courts. Any such proceedings before the
Court shall take place in . The
Parties irrevocably waive any objections which they may have now or
hereafter to either the venue of any proceedings brought in the
Court, or that such proceedings have been brought in a non-convenient
forum.
|
The
Parties irrevocably agree that any final judgement (after appeal or expiration
of time for appeal) entered by such Court shall be conclusive and binding upon
the Parties and may be enforced in the courts or any jurisdiction to the fullest
extent permitted by law. The Guarantor irrevocably designates, as its
agent for service of process to receive on its behalf service of process in
in respect of any claims under this Guarantee:
Mr.
KNM Group Bhd
|
4.2
|
The
Guarantor may from time to time designate a new agent for the receipt of
process provided that such agent is either a company incorporated and
registered in
or an individual resident in
by giving Notice of such change to Purchaser in the manner provided in
Clause 3 above.
|
|
4.3
|
The
Guarantor shall pay all costs and expenses incurred by or on behalf of the
Purchaser (including without limitation legal fees and expenses on a full
indemnity basis) in enforcing the obligations of the Guarantor under this
Guarantee.
|
|
5.0
|
ASSIGNMENT
AND SUCCESSORS
|
|
5.1
|
The
Purchaser may assign, charge or transfer any of its rights under this
Guarantee. The Guarantor shall not assign the benefit of this
Guarantee in whole or in part or any of his obligations or liabilities
under this Guarantee without the prior written consent of the
Purchaser.
|
|
5.2
|
All
of the terms of this Guarantee shall be binding upon and inure to the
benefit of and be enforceable by the successors and assigns of the
Purchaser.
|
28
|
6.0
|
INSOLVENCY
|
Any
settlement or discharge between the Purchaser and the Guarantor shall be
conditional upon no security or payment to the Purchaser by or on behalf of the
Contractor or any other person being avoided or reduced by virtue of any
provision or enactment relating to bankruptcy, insolvency, administration or
liquidation for the time being in force and the Purchaser shall be entitled to
recover the value or amount of any such security or payment from the Guarantor
subsequently as if such settlement or discharge had not occurred.
|
7.0
|
LIMITATION
|
If called
upon to perform hereunder it is expressly agreed that the Guarantor's
obligations to perform in accordance with this Guarantee shall be co-extensive
with the Contractor's obligations to the Purchaser under the Contract and it is
expressly agreed that the Guarantor under this Guarantee shall be entitled to
assert to the fullest extent all of those rights, limitations of liabilities and
defences which the Contractor might assert under the Contract.
|
8.0
|
ARBITRATION
|
The
Guarantor hereby agrees, with respect to this Guarantee, to be bound by the
Dispute Resolution procedures set forth in Clause 50 of the Conditions of the
Contract, including without limitation the choice of arbitration procedures set
forth therein, in the same manner and with the same effect as if the Guarantor
were named in lieu of the Contractor therein.
|
9.0
|
EXPIRY
|
This
Guarantee shall expire upon the Guarantor's performance of all of its
obligations set forth herein.
IN
WITNESS whereof the Guarantor has delivered this document as a deed the day and
year first before written.
|
[SEAL]
|
[NAME
OF GUARANTOR]
|
|
|
By
|
||
|
Name:
|
||
|
Title:
|
||
|
[PURCHASER]
|
||
|
By
|
||
|
Name:
|
||
|
Title:
|
29
APPENDIX
17
VARIATION
ORDER
Date:
VO
No.:
(SHORT
DESCRIPTION OF WORKS)
|
TO:
|
CONTRACTOR
|
You are
directed/we confirm directions given by letter date
[ ]
under Clause 27 (Variations) of the Conditions to make the variation to the
Works noted below:
|
Purchaser
(where required)
|
|
|
Engineer
|
|
Dated
|
[
|
],
|
19
|
[
|
] |
|
Dated
|
[
|
],
|
19 |
[
|
] |
|
|
Nature
of the Changes:
|
|
Enclosures:
|
|
1.
|
This
variation results in the following adjustment of the Contract Price in
accordance with Clause 27
(Variations)
|
Contract
Price
Net
(Increase) (Decrease)
resulting
from previous Variation Order
Net
(Increase) (Decrease)
resulting
from this Variation Order
Total
Contract Value
|
2.
|
Time
for Completion shall be adjusted as follows: [ ]
|
Time for
Completion prior to this Variation order
[ ]
[Days or
Date] from the Commencement Date
Net
(Increase) (Decrease) resulting from this Variation order
30
APPENDIX
18
FORM
OF MECHANICAL COMPLETION CERTIFICATE
This is
to certify that the Plant is mechanically complete. Upon completion
of this certificate, the relevant payment is to be released and the plant
readied for commissioning.
|
By:
|
By:
|
|||||
|
Title:
|
Title:
|
|||||
|
For
KNM Process Systems Sdn Bhd,
Contractor |
For
Mission Biofuels Sdn
Bhd,
Purchaser |
|||||
31
APPENDIX
19
FINAL
CERTIFICATE OF PAYMENT
|
TO:
|
CONTRACTOR
|
DATE:
|
||
|
FROM:
|
|
PURCHASER
|
|
(SHORT
DESCRIPTION OF WORKS)
|
1.
|
In
accordance with Clause 39 of the Conditions of Contract
either:
|
|
|
(a)
|
After
having considered the Contractor's Final Account, it is hereby certified
that the value of the Works is as
follows:
|
Contract
Price
Adjustment
for Variations
Reductions
Claims
for Additional Payment
Amounts
due to Purchaser
TOTAL
VALUE OF WORKS
Less
Payments Previously Certified
BALANCE
DUE TO CONTRACTOR
|
2.
|
The
Purchaser shall pay the amount due to the Contractor within (30) days
after the date hereof.
|
|
3.
|
The
Final Certificate of Payment is conclusive evidence of the value of the
Works, but is not conclusive :
|
|
|
(a)
|
to
the extent that fraud or dishonesty relates to or affects any matter dealt
with in the Final Certificate, or
|
|
|
(b)
|
if
any arbitration or court proceedings under the Contract have been
commenced by either Party before the expiry of 90 days after the date
hereof.
|
|
4.
|
Payment
by the Purchaser of the amount due to the Contractor hereunder shall
constitute conclusive evidence that the Purchaser has performed all his
obligations under the contract, but is not conclusive as mentioned in
paragraphs 3 (a) and (b) above.
|
Engineer
32
APPENDIX
20
TAKING
OVER CERTIFICATE
(SHORT
DESCRIPTION OF WORKS)
|
TO:
|
CONTRACTOR
|
|
FROM:
|
PURCHASER
|
(SHORT
DESCRIPTION OF WORKS)
|
1.
|
In
accordance with Clause 29 (Taking-Over) of the Conditions of Contract it
is hereby certified that the Works specified in the Schedule below were
completed (except in minor respects that do not affect their commercial
use, noted below) and have passed the Tests on Completion and achieve the
Final Performance Acceptance and are accordingly deemed to have been taken
over by the Purchaser with effect from (Taking-Over
Date).
|
SCHEDULE
(Works to
which this Certificate applies)
|
2.
|
Accordingly,
the Defects Liability Period in respect of the Works specified in the
Schedule commence on
(Taking-Over Date) and subject to Clause 36 (Defects Liability) of the
Conditions will expire on
|
|
3.
|
The
items specified in the list annexed hereto remain to be completed or
corrected. The Contractor is instructed to complete or correct
the same within the period specified
therein.
|
|
4.
|
Having
regard to claims for extensions of time under Clause 33.1 (Extension of
Time for Completion) received prior to the date hereof it is certified
that for the purposes of Clause 34 (Delay) the Time for Completion expired
on
[ ].
|
|
ENGINEER
|
[
|
]
|
Date
|
[
|
],
|
20
[ ]
|
33
APPENDIX
21
DEFECTS
LIABILITY CERTIFICATE (NO. )
(FINAL)
|
TO:
|
CONTRACTOR
|
DATE:
|
||
|
FROM:
|
|
PURCHASER
|
|
(SHORT
DESCRIPTION OF WORKS)
This
Defects Liability Certificate issued in accordance with Clause 36 of the
Conditions of Contract applies to the whole of the Works or the following
specified sections or parts of the Works.
(SPECIFY
SECTIONS OR PARTS OF THE WORKS
TO WHICH
THE CERTIFICATE APPLIES)
|
1.
|
It
is hereby certified that the Defects Liability Period for the part of the
Works to which this Certificate applies expired on
[ ]
and that the Contractor has fulfilled all his obligations under the
Contract for defects which have appeared or occurred during the said
period.
|
|
2.
|
Where
this Certificate is stated to be the Final Defects Liability Certificate
for the Works:
|
|
|
(a)
|
The
Purchaser shall return the Performance Bond and Corporate Guarantees
provided by the Contractor under the Terms and Conditions of Contract, to
the Contractor within 14 days after the date
hereof.
|
|
|
(b)
|
The
Contractor shall deliver to the Engineer his final account in accordance
with Clause 39.6.
|
Engineer
34
APPENDIX
22
FORM
OF RETENTION BOND
WHEREAS:
KNM
Process Systems Sdn Bhd, ("the Contractor") has by an agreement made between
Mission Biofuels Sdn Bhd ("the Purchaser") of the one part and the Contractor of
the other part entered into a Contract ("the Contract') for the design,
construction and completion of a Continuous Acid Conditioning and Xxxx
Pretreatment, FFA pretreatment, Methyl Ester Transesterification plant with
biodiesel output of 750 tpd (250,000 tpa) and 98% pure technical grade Glycerin
output of 82 tpd (27308 tpa) with all associated balance of plant project at
Kuantan Port, Malaysia, as more fully described in the said Contract ("the
Biodiesel Project") and for the consideration of payment for the amount stated
therein ("the Contract Price"), subject to the provisions of the
Contract. Any capitalised terms used and not defined herein shall
have the meanings attributed thereto in the Contract.
BY THIS
BOND we [bank
name] of
(hereinafter called "the Surety") are held and firmly bound unto the Purchaser
in the sum of
[ ] being [five
per cent (5%)] of the Contract Price ("the Guaranteed Sum") for the payment of
which sum the Surety binds itself, its successors and assigns by these presents
and hereby irrevocably and unconditionally guarantees to pay to the Purchaser
forthwith upon the Purchaser's written demand or demands, provided that such
demand does not exceed Guaranteed Sum, without objection or contestation
whatever on our part and without the Purchaser having to assign any reason
whatsoever for such demand and without any proof or conditions, the amount
specified in such demand within 3 (three) days from the date of receipt of the
said demand notwithstanding any objection on the part of the Contractor and
irrespective of whether or not there is any dispute between the Contractor and
the Purchaser in respect of or relating to the Contract or in respect of any
other matter and whether or not such said dispute, if any, has been settled,
litigated or adjudicated otherwise howsoever. The Purchaser may make
more than one demand hereunder.
This Bond
shall be valid as of the Date of Final Performance Acceptance the Plant and
shall be null and void 30 (thirty) days after the expiry of Defects Liability
Period (hereinafter referred to as "Validity Period"), and thereupon the
original of this Bond shall be returned to the Contractor.
Our
obligations hereunder shall not be affected by any act, omission, matter or
thing, which, but for this provision might operate to release or otherwise
exonerate us from our obligations hereunder in whole or in part, including
without limitation and whether or not known to us or you:
|
(a)
|
any
time or waiver granted to the Contractor or any other
person;
|
|
(b)
|
the
taking, variation, compromise, renewal or release of or refusal or neglect
to perfect or enforce any rights, remedies or securities against the
Contractor or any other person;
|
|
(c)
|
any
legal limitation, disability or incapacity relating to the Contractor or
any other person;
|
|
(d)
|
any
variation of or amendment to the Contract or the works to be performed
thereunder or any other document or security so that references to the
Contract in this Bond shall include each such variation and amendment;
and
|
|
(e)
|
any
un-enforceability, invalidity or frustration of any obligations of the
Contractor or any other person under the Contract or any other document or
security.
|
Your
right to make demands on us under this Bond shall be an independent right and
shall be without prejudice to any other rights that you may have under the
Contract.
35
All
demands, if any, in respect of this Bond shall be made in writing and received
by us within the Validity Period, failing which all our liabilities and
obligations on this Bond shall be deemed to be completely absolved thereafter,
notwithstanding that the original of this Bond is not returned to us for
cancellation. The retention of this Bond after the Validity period
does not confer any rights upon you. This Bond shall be governed by
and construed in accordance with the laws of Malaysia and the Malaysian courts
shall have jurisdiction to try any matter relating to this Bond.
The
benefit of this Bond may be assigned by you to your financiers as collateral
security subject to our prior consent, which consent shall not be unreasonably
withheld and any other assignment shall be subject to our prior
consent.
Signed on
behalf of the Surety and dated the
day of 2007.
Signed
for
and on
behalf of
[ ]
in the
presence of:
36
