14.10 Statement at Completion Within 84 days after receiving the Taking-Over Certificate for the Works, the Contractor shall submit to the Engineer six copies of a Statement at completion with supporting documents, in accordance with Sub-Cl14.10 Statement at Completion
Within 84 days after receiving the Taking-Over Certificate for the Works, the Contractor shall submit to the Engineer six copies of a Statement at completion with supporting documents, in accordance with Sub-Clause14.3[ Application for Interim Payment Certificates]’showing:
(a) the value of a11 work done in accordance with the Contract up to the date stated in the Taking-Over Certificate for the Works.
(b) any further sums which the Contractor considers to be due, and
(c) an estimate of any other amounts which the Contractor considers will become due to him under the Contract. Estimated amounts shall be shown separately in this Statement at completion.
The Engineer shall then certify in accordance with Sub-Clause 14.6 [Issue of Interim Payment Certificates].
14.11 Application for Final Payment Certificate
Within 56 days after receiving the Performance Certificate, the Contractor shall submit, to the Engineer, six copies of a draft final statement with supporting documents showing in detail in a form approved by the Engineer:
(a) the value of all work done in accordance with the Contract, and
(b) any further sums which the Contractor considers to be due to him under the Contract or otherwise.
If the Engineer disagrees with or cannot verify any part of the draft final statement, the Contractor shall submit such further information as the Engineer may reasonably require and shall make such changes in the draft as may be agreed between them.
The Contractor shall then prepare and submit to the Engineer the finaI statement as agreed. This agreed statement is referred to in these Conditions as the” Final Statement”.
However lf, following discussions between the Engineer and the Contractor and any changes to the draft final statement which are agreed, it becomes evident that a dispute exists, the Engineer shall deliver to the Employer(With a copy to the Contractor) an Interim Payment Certificate for the agreed parts of the draft final Statement. Thereafter if the dispute is finally resolved under Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] or Sub-Clause 20.5[Amicable Settlement], the Contractor shall then repare and submit to the Employer (with a copy to the Engineer) a Final Statement.
14.12 Discharge
When submitting the Final Statement, the Contractor shall submit a written discharge which confirms that the total of the Final Statement represents full and final settlement of all moneys due to the Contractor under or in connection with the Contract. This discharge may state that it becomes effective when the Contractor has received the Performance Security and the out-standing balance of this total in which event the discharge will be effective on such date.
14.13 Issue of Final Payment Certificate
Within 28 days after receiving the Final Statement and written discharge in accordance with Sub-Clause 14.11 [Application for final Payment Certificate] and Sub-Clause 14.12 [Discharge], the Engineer shall issue, to the Employer, the Final Payment Certificate which shall state:
(a) the amount which is finally due, and
(b) after giving credit to the Employer for all amounts previously paid by the Employer and for all sums to which the Employer is entitled, the balance (if any) due from the Employer to the Contractor or from the Contractor to the Employer, as the case may be. If the Contractor has not applied for a Final Payment Certificate in accordance with Sub-Clause 14.11 [Application for Final Payment Certificate and Sub-Clause 14.12[Discharge], the Engineer shall request the Contractor to do so. If the Contractor fails to submit an application within a period of 28 days, the Engineer shall issue the Final Payment Certificate for such amount as he fairly determines to be due.
14.14 Cessation of Employer’s Liability
The Employer shall not be liable to the Contractor for any matter or thing under or in connection with the Contract or execution of the Works, except to the extent that the Contractor shall have included an amount expressly for it:
(a) in the Final Statement and also
(b) (except for matters or things arising after the issue of the Taking-Over Certificate for the Works) in the Statement at completion described in Sub-Clause 14.10 [Statement at Completion].
However, this Sub-Clause shall not limit the Employer’s liability under his indemnification obligations or the Employer’s liability in any case of fraud, deliberate default or reckless misconduct by the Employer.
14.15 Currencies of Payment
The Contract Price shall be paid in the currency or currencies named in the Appendix to Tender. Unless otherwise stated in the Particular Conditions, if more than one currency is so named, payments shall be made as follows:
(a) if the Accepted Contract Amount was expressed in Local Currency only (i) the proportions or amounts of the Local and Foreign Currencies, and the fixed rates of exchange to be used for calculating the payments. shall be as Stated in the Appendix to Tender, except as otherwise agreed by both Parties;
(ii)Payments and deductions under Sub-Clause 13.5 [Provisional Sums] and Sub-Clause 13.7[Adjustments for Changes in Legislation] shall be made in the applicable currencies and proportions; and
(iii) other payments and deductions under sub-paragraphs (a) to (d) of Sub-Clause 14.3 [Application for interim Payment Certificates] shall be made in the currencies and proportions specified in sub-paragraph (a) (i) above;
(b) payment of the damages specified in the Appendix to Tender shall be made in the currencies and proportions specified in the Appendix to Tender;
(c) other payments to the Employer by the Contractor shall be made in the currency in which the sum was expended by the Employer, or in such currency as may be agreed by both Parties;
(d) lf any amount payable by the Contractor to the Employer in a particular currency exceeds the sum payable by the Employer to the Contractor in that currency, the Employer may recover the balance of this amount from the sums otherwise Payable to the Contractor in other currencies; and
(e) lf no rates of exchange are stated in the Appendix to Tender, they shall be those prevailing on the Base Date and determined by the central bank of the Country.
15 Termination by Employer
15.1 Notice to Correct
If the Contractor fails to carry out any obligation under the Contract, the Engineer may by notice require the Contractor to make good the failure and to remedy it within a specified reasonable time.
15.2 Termination by Employer
The Employer shall be entitled to terminate the Contract if the Contractor
(a) fails to comply with Sub-Clause 4.2[Performance Security] or with a notice under Sub-Clause 15.1[Notice to Correct].
(b) abandons the Works or otherwise plainly demonstrates the intention not to continue performance of his obligations under the Contract,
(c) without reasonable excuse fails:
(i) to proceed with the Works in accordance with Clause 8 [Commencement, Delays and Suspension], or
(ii) to comply with a notice issued under Sub-Clause 7.5[Rejection] or Sub-Clause 7.6[Remedial Work], within 28 days after receiving it,
(d) subcontracts the whole of the Works or assigns the Contract without the required agreement,
(e) becomes bankrupt or insolvent, goes into Liquidation, has a receiving or administration order made against him, compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under applicable Laws) has a similar effect to any of these acts or events, or
(f) gives or offers to give (directly or indirectly) to any person any bribe, gift, gratuity, commission or other thing of value, as an inducement or reward:
(i) for doing or forbearing to do any action in relation to the Contract, or
(ii) for showing or forbearing to show favor or disfavor to any person in relation to the Contract.
or if any of the Contractor’s Personnel, agents or Subcontractors gives or offers to give (directly or indirectly)to any person any such inducement or reward as is described in this sub-paragraph (f).However lawful inducements and rewards to Contractor’s Personnel shall not entitle termination.
In any of these events or circumstances, the Employer may, upon giving 1 4 days’ notice to the Contractor, terminate the Contract and expel the Contractor from the Site. However, in the case of sub-paragraph (e) or (f) the Employer may by notice terminate the Contract immediately.
The Employer’ selection to terminate the Contract shall not prejudice any other rights of the Employer, under the Contract or otherwise.
The Contractor shall then leave the Site and deliver any required Goods, all Contractor’s Documents, and other design documents made by or for him, to the Engineer. However, the Contractor shall use his best efforts to comply immediately with any reasonable instructions included in the notice (i) for the assignment of any subcontract, and (ii) for the protection of life or property or for the safety of the Works.
After termination, the Employer may complete the Works and/or arrange for any other entities to do so. The Employer and these entities may then use any Goods, Contractor’s Documents and other design documents made by or on behalf of the Contractor.
The Employer shall then give notice that the Contractor’s Equipment and Temporary Works will be released to the Contractor at or near the Site. The Contractor shall promptly arrange their removal, at the risk and cost of the Contractor. However, if by this time the Contractor has failed to make a payment due to the Employer, these items may be sold by the Employer in order to recover this payment. Any balance of the proceeds shall then be paid to the Contractor.
15.3 Valuation at Date of Termination
As soon as practicable after a notice of termination under Sub-Clause 15.2 [Termination by Employer] has taken effect, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine the value of the Works, Goods and Contractor’s Documents, and any other sums due to the Contractor for work executed in accordance with the Contract.
15.4 Payment after Termination
After a notice of termination under Sub-Clause 15.2[Termination by Employer] has taken effect, the Employer may:
(a) proceed in accordance with Sub-Clause 2.5[Employer’s Claims],
(b) withhold further payments to the Contractor until the costs of design, execution, completion and remedying of any defects, damages for delay in completion (if any),and all other costs incurred by the Employer, have been established, and/or
(c) recover from the Contractor any Losses and damages incurred by the employer and any extra costs of completing the Works. after allowing for any sum due to the Contractor under Sub-Clause 15.3[Valuation at Date of Termination]. After recovering any such losses, damages and extra costs, the Employer shall pay any balance to the Contractor.
15.5 Employer’s Entitlement to Termination
The Employer shall be entitled to terminate the Contract, at any time for the Employer’s convenience, by giving notice of such termination to the Contractor. The termination shall take effect 28 days after the later of the dates on which the Contractor receives this notice or the Employer returns the Performance Security.
The Employer shall not terminate the Contract under this Sub-Clause in order to execute the Works himself or to arrange for the Works to be executed by another Contractor After this termination, the Contractor shall proceed in accordance with Sub-Clause 16.3 [Cessation of Work and Removal of Contractor’s Equipment] and shall be paid in accordance with Sub-Clause 19.6 [Optional Termination, Payment and Release].
16 Suspension and Termination Contractor
16.1 Contractor’s Entitlement to Suspend Work
If the Engineer fails to certify in accordance with Sub-Clause14.6 [Issue of Interim Payment Certificates] or the Employer fails to comply with Sub-Clause 2.4 [Employer’s Financial Arrangements] or Sub-Clause 14.7 [Payment], the Contractor may, after giving not less than 21 days, notice to the Employer, suspend work (or reduce the rate of work) unless and until the Contractor has received the Payment Certificate, reasonable evidence or payment, as the case may be and as described in the notice.
The Contractor’s action shall not prejudice his entitlements to financing charges under Sub-Clause 14.8[Delayed Payment] and to termination under Sub-Clause [Termination by Contractor].
If the Contractor subsequently receives such Payment Certificate, evidence or Payment (as described in the relevant Sub-Clause and in the above notice) before giving a notice of termination, the Contractor shall resume normal working as soon as is reasonably practicable.
If the Contractor suffers delay and/or incurs Cost as a result of suspending work (or reducing the rate of work)in accordance with this Sub-Clause, the Contractor shall give notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4[Extension of Time for Completion].and
(b) payment of any such Cost plus reasonable profit, which shall be included in the Contract Price.
After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine these matters.
16.2 Termination by Contractor
The Contractor shall be entitled to terminate the Contract if:
(a) the Contractor does not receive the reasonable evidence within 42 days after giving notice under Sub-Clause 16.1[Contractor’s Entitlement to Suspend Work] in respect of a failure to comply with Sub-Clause 2.4[Employer’s Financial Arrangements],
(b) the Engineer fails, within 56 days after receiving a Statement and supporting documents. to issue the relevant Pavement Certificate,
(c) the Contractor does not receive the amount due under an Interim Payment Certificate within 42 days after the expiry of the time stated in Sub-Clause 1 4.7 [Payment] within which Payment is to be made (except for deductions in Accordance with Sub-Clause 2.5[Employer’s Claims]),
(d) the Employer substantially fails to perform his obligations under the Contract,
(e) the Employer fails to comply with Sub-Clause 1.6[Contract Agreement] or Sub-Clause 1.7[Assignment],
(f) a prolonged suspension affects the whole of the Works as described in Sub-Clause 8.1 1[Pronged Suspension].or (g) the Employer becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him. compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under applicable Laws) has a similar effect to any of these acts or events.
In any of these events or circumstances, the Contractor may, upon giving 14 days, notice to the Employer, terminate the Contract. However, in the case of sub-paragraph (f) or (g), the Contractor may by notice terminate the Contract immediately.
The Contractor’ selection to terminate the Contract shall not prejudice any other rights of the Contractor, under the Contract or otherwise.
16.3 Cessation of Work and Equipment Removal of Contractor
After a notice of termination under Sub-Clause 15.5 [Employer’s Entitlement to Termination]’sub-Clause 16.2 [Termination by Contractor] or Sub-Clause 19.6 [Optional Termination, Payment and Release] has taken effect, the Contractor shall promptly:
(a) cease all further work, except for such work as may have been instructed by the Engineer for the protection of life or property or for the safety of the Works,
(b) hand over Contractor’s Documents, Plant, Materials and other work, for which the Contractor has received payment, and
(c) remove all other Goods from the Site, except as necessary for safety, and leave the Site.
16.4 Payment on Termination
After a notice of termination under Sub-Clause 16.2[Termination by Contractor] has taken effect, the Employer shall promptly:
(a) return the Performance Security to the Contractor,
(b) pay the Contractor in accordance with Sub-Clause 19.6[Optional Termination, Payment and Release].and
(c) pay to the Contractor the amount of any loss of profit or other loss or damage sustained by the Contractor as a result of this termination.
17 Risk and Responsibility
17.1 Indemnities
The Contractor shall indemnify and hold harmless the Employer, the Employer’s Personnel, and their respective agents, against and from all claims damages, losses and expenses (including legal fees and expenses) in respect of:
(a) Bodily inquiry, sickness, disease or death, of any person whatsoever arising out of or in the course of or by reason of the design, execution and completion of the Works and the remedying of any defects. unless attributable to any negligence, willful act or breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents, and
(b) damage to or loss of any property, real or personal (other than the Works), to the extent that such damage or Loss:
(i) arises out of or in the course of or by reason of the design, execution and completion of the Works and the remedying of any defects, and
(ii) is attributable to any negligence, willful act or breach of the Contract by the Contractor, the Contractor’s Personnel, their respective agents, or anyone directly or indirectly employed by any of them.
The Employer shall indemnify and hold harmless the Contractor, the Contractor’s Personnel, and their respective agents, against and from all claims, damages, losses and expenses (including 1egaI fees and expenses) in respect of (1) bodily inquiry sickness, disease or death, which is attributable to any negligence, willful act or breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents, and (2) the matters for which liability may be excluded from insurance cover, as described in sub-paragraphs (d) (i), (ii) and (iii) of Sub-Clause 18.3[Insurance Against Injury to Persons and Damage to Properly].
17.2 Contractor’s Care of the Works
The Contractor shall take full responsibility for the care of the Works and Goods from Works the Commencement Date until the Taking-Over Certificate is issued (or is deemed to be issued under Sub-Clause 10.1[Taking Over of the Works and Sections]) for the Works, when responsibility for the care of the Works shall pass to the Employer. If a Taking-Over Certificate is issued (or is so deemed to be issued) for any Section or part of the Works, responsibility for the care of the Section or part shall then pass to the Employer.
After responsibility has accordingly passed to the Employer, the Contractor shall take responsibility for the care of any work which is outstanding on the date stated in a Taking-Over Certificate, until this outstanding work has been completed.
If any loss or damage happens to the Works, Goods or Contractor’s Documents during the period when the Contractor is responsible for their care, from any cause not listed in Sub-Clause 17.3[Employer’s Risks], the Contractor shall rectify the loss or damage at the Contractor’s risk and cost, so that the Works, Goods and Contractor’s Documents conform with the Contract.
The Contractor shall be liable for any loss or damage caused by any actions performed by the Contractor after a Taking-Over Certificate has been issued. The Contractor shall also be liable for any loss or damage which occurs after a Taking’ Over Certificate has been issued and which arose from a previous event for which the Contractor was Liable.
17.3 Employer’s Risks
The risks referred to in Sub-Clause 17.4 below are
(a) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,
(b) rebellion, terrorism, revolution insurrection, military or usurped power, or civil war, within the Country,
(c) riot, commotion or disorder within the Country by persons other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors.
(d) munitions of war, explosive materials, ionizing radiation or contamination by radio-activity, within the Country, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity,
(e) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds,
(f) use or occupation by the Employer of any part of the Permanent Works, except as may be specified in the Contract.
(g) design of any part of the Works by the Employer’s Personnel or by others for whom the Employer is responsible, if any, and
(h) any operation of the forces of nature which is Unforeseeable or against which an experienced contractor could not reasonably have been expected to have taken adequate preventative precautions.
17.4 Consequences of Employer’s Risks
If and to the extent that any of the risks listed in Sub-Clause 1 7.3 above results in loss or damage to the Works, Goods or Contractor’s Documents, the Contractor shall promptly give notice to the Engineer and shall rectify this loss or damage to the extent required by the Engineer If the Contractor suffers delay and/or incurs Cost from rectifying this loss or damage.
the Contractor shall give a further notice to the Engineer and shall be entitled subject to Sub-Clause 20.1[Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4[Extension of Time for Completion].and
(b) payment of any such Cost, which shall be included in the Contract Price. In the case of sub-paragraphs m and (g) of Sub-Clause 17.3[Employer’s Risks], reasonable profit on the Cost shall also be included.
After receiving this further notice, the Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine these matters.
17.5 Intellectual and Industrial Property Rights
In this Sub-Clause, “infringement” means an infringement (or alleged infringement) of any patent, registered design, copyright, trade mark, trade name, trade secret or other intellectual or industrial property right relating to the Works; and “claim” means a claim (or proceedings pursuing a claim) alleging an infringement.
Whenever a Party does not give notice to the other Party of any claim within 28 days of receiving the claim, the first Party shall be deemed to have waived any right to indemnity under this Sub-Clause.
The Employer shall indemnify and hold the Contractor harmless against and from any claim alleging an infringement which is or was: an unavoidable result of the Contractor’s compliance with the Employer’s Requirements, or
(b) a result of any Works being used by the Employer:
(i) for a purpose other than that indicated by, or reasonably to be inferred from, the Contract, or
(ii) in conjunction with anything not supplied by the Contractor, unless such use was disclosed to the Contractor prior to the Base Date or is stated in the Contract.
The Contractor shall indemnify and hold the Employer harmness against and from any other claim which arises out of or in relation to (i) the Contractor’s design, manufacture, construct ruction or execution of the Works, (ii) the use of Contractor’s Equipment, or (iii) the proper use of the Works.
If a [arty is entitled to be indemnified under this Sun-Clause, the indemnifying Party may (at its cost) conduct negotiations for the settlement of the claim, and any litigation or arbitration which may arise from it. The other Party shall, at the request and cost of the indemnifying Party, assist in contesting the claim. This other Party (and its Personnel) shall not make any admission which might be prejudicial to the indemnifying Party, unless the indemnifying Party failed to take over the conduct of any negotiation, ligigation or arbitration upon being requested to do so by such other Party.
17.6 Limitation of Liability
Neither Party shall be liable to be other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract, other than under Sun-clause 16.4 [Payment on Termination] and Sub-Clause17.1[indemnities].
The total liability of the contractor to the Employer, under or in connection with the Contractor other than under Sub-Clause4.19 [Electricity, Water and Gas], Suc-Clause4.20 [Employer’s Equipment and Free-Issue Material], Sub-Clause17.1 [Indemnities] And Sub-Clause 17.5 [Intellectual and Industrial Property Rights], should not exceed the sum stated in the Particular Conditions or (if a sum is not so stated) the Accepted Contract Amount.
This Sub-Clause shall not limit liability in any case of fraud, deliberate default or reckless misconduct by the defaulting Party.
18 Insurance
18.1 General Requirements for Insurances
In this Clause, “insuring party” means, for each type of insurance, the party responsible for effecting and maintaining the insurance specified in the relevant sub-clause.
Wherever the contractor is the insuring party, each insurance shall be effected with insurers and interims approved by the employer. These terms shall be consistent with any terms agreed by both parties before the date of the letter of acceptance. This agreement of terms shall take precedence owner the provisions of this clause.
Wherever the employer is the insuring party, each insurance shall be affected with insurers and in terms consistent with the details annexed to the particular conditions.
If a policy is required to indemnify joint insured, the cover shall apply separately to each insured as though a separate policy had been issued for each of the joint insured. If a policy indemnifies additional joint insured, namely in addition to the Insured specified in this Clause, (i) the Contractor shall act under the policy on behalf of these additional joint insured except that the Employer shall act for Employer’s
Personnel, (ii) additional joint insured shall not be entitled to receive payments directly from the insurer or to have any other direct dealings with the insurer, and (iii) the insuring Party shall J require all additional joint Insured to comply with the conditions stipulated in the policy.
Each policy insuring against loss or damage shall provide for payments to be made in the currencies required to rectify the loss or damage. Payments received from insurers shall be used for the rectification of the loss or damage.
The relevant insuring Party shall, within the respective periods stated in the Appendix to Tender (calculated from the Commencement Date)’submits to the other Party:
(a) evidence that the insurances described in this Clause have been effected, and
(b) copies of the policies for the insurances described in Sub-Clause 18.2 [Insurance for Works and Contractor’s Equipment] and Sub-Clause 18.3 [Insurance against Injury to Persons and Damage to Property].
When each premium is paid, the insuring Party shall submit evidence of payment to the other Party. Whenever evidence or policies are submitted, the insuring Party shall also give notice to the Engineer.
Each Party shall comply with the conditions stipulated in each of the insurance policies. The insuring Party shall keep the insurers informed of any relevant changes to the execution of the Works and ensure that insurance is maintained in accordance with this Clause.
Neither Party shall make any material alteration to the terms of any insurance without the prior approval of the other Party. If an insurer makes (or attempts to make) any alteration, the Party first notified by the insurer shall promptly give notice to the other Party.
If the insuring Party fails to effect and keep in force any of the insurances it is required to effect and maintain under the Contract, or fails to provide satisfactory evidence and copies of policies in accordance with this Sub-Cause, the other Party may (al its option and without Prejudice to any other right or remedy) effect insurance for the relevant coverage and pay the premiums due. The insuring Party shall pay the amount of these premiums to the other Party and the Contract Price shall be adjusted accordingly.
Nothing in this Clause limits the obligations.1iabilities or responsibilities of the Contractor or the Employer, under the other terms of the Contract or otherwise. Any amounts not insured or not recovered from the insurers shall be borne by the Contractor and/or the Employer in accordance with these obligations, Liabilities or responsibilities. However, if the insuring Party fails to effect and keep in force an insurance which Is available and which it is required to effect and maintain under the Contract, and the other Party neither approves the omission nor effects insurance for the coverage relevant to this default, any moneys which should have been recoverable under this insurance shall be paid by the insuring Party.
Payments by one Party to the other Party shall be subject to Sub-Clause 2.5 [Employer’s Claims] or Sub-Clause 20.1 [Contractor’s Claims], as applicable.
18.2 Insurance for Works and Contractor’s Equipment
The insuring Party shall insure the Works, Plant, Materials and Contractor’s Documents for not less than the full reinstatement cost including the costs of demolition, removal of debris and professional fees and profit. This insurance shall be effective from the date by which the evidence is to be submitted under sub-paragraph (a) of Sub-Clause 18.1[General Requirements for Insurances], until the date of issue of the Taking-Over Certificate for the Works.
The insuring Party shall maintain this insurance to provide cover until the date of issue of the Performance Certificate, for Loss or damage for which the Contractor is liable arising from a cause occurring prior to the issue of the Taking-Over Certificate, and for Loss or damage caused by the Contractor in the course of any other operations (including those under Clause 1.1[Defects Liability] and Clause 12 [Tests after Completion]).
The insuring Party shall insure the Contractor’s Equipment for not less than the full replacement value, including delivery to Site. For each item of Contractor’s Equipment, the insurance shall be effective while it is being transported to the Site and until it is no longer required as Contractor’s Equipment.
Unless otherwise stated in the Particular Conditions, insurances under this Sub-Clause:
(a) shall be effected and maintained by the Contractor as insuring Party,
(b) shall be in the joint names of the Parties, who shall be jointly entitled to receive payments from the Insurers. Payments being held or allocated between the Parties for the sole purpose of rectifying the loss or damage.
(c) shall cover all loss and damage from any cause not Listed in Sub-Clause 17.3 [Employer’s Risks],
(d) shall also cover loss or damage to a part of the Works which is attributable to the use or occupation by the Employer of another part of the Works, and loss or damage from the risks listed in sub-paragraphs(c), (g) and (h) of Sub-Clause 17.3 [Employer’s Risks], excluding (in each case) risks which are not insurable at commercially reasonable terms, with deductibles per occurrence of not more than the amount stated In the Appendix to Tender (if an amount is not so stated., this sub-paragraph (d) shall not apply), and
(e) may however exclude Loss of, damage to, and reinstatement of:
(i) a part of the Works which is in a defective condition due to a defect in its design, materials or workmanship (but cover shall include any other parts which are Lost or damaged as a direct result of this defective condition and not as described in sub-paragraph (ii) below),
(ii) a part of the Works which Is lost or damaged in order to reinstate any other part of the Works if this other part is in a defective condition due to a defect in its design, materials or workmanship,
(iii) a part of the Works which has been taken over by the Employer, except to the extent that the Contractor is liable for the Ioss or damage, and
(ⅳ) Goods while they are not in the Country, subject to Sub-Clause 14.5 [Plant and Materials intended for the Works. If, more than one year after the Base Date, the cover described in sub-paragraph
(a) above ceases to be available at commercially reasonable terms, the Contractor shall (as insuring Party) give notice to the Employer, with supporting particulars.
The Employer shall then (i) be entitled subject to Sub-Clause 2.5[Employer’s Claims] to payment of an amount equivalent to such commercially reasonable terms as the Contractor should have expected to have paid for such cover, and (ii) be deemed, unless he obtains the cover at commercially reasonable terms, to have approved the omission under Sub-Clause 18.1 [General Requirements for Insurances].
18.3 Insurance against Injury to Persons and Damage to Property
18.3 The insuring Party shall insure against each Party's liability for any loss, damage death or bodily injury which may occur to any physical property (except things insured under (except persons insured under Sub-Clause 18.4[Insurance for Contractor’s Personnel]), which may arise out of the Contractor’s performance of the Contract and occurring before the Issue of the Performance Certificate.
Sub-Clause 18.2[Insurance for Works and Contractor’s Equipment] 1 or to any person
This insurance shall be for a Limit per occurrence of not less than the amount stated in the Appendix to Tender, with no Limit on the number of occurrences’ an amount is not stated in the Appendix to Tender, this Sub-Clause shall not apply.
Unless otherwise stated in the Particular Conditions, the insurances specified in this Sub-Clause:
(a) shall be effected and maintained by the Contractor as insuring Party,
(b) shall be in the Joint names of the Parties,
(c) shall be extended to cover liability for al J loss and damage to the Employer’s Property (except things insured under Sub-Clause 18.2) arising out of the Contractor’s performance of the Contract, and
(d) may however exclude liability to the extent that it arises from:
(i) the Employer’s right to have the Permanent Works executed on, over, under, in or through any Land, and to occupy this land for the Permanent Works.
(ii) damage which is an unavoidable result of the Contractor’s obligations to execute the Works and remedy any defects, and
(iii) a cause listed in Sub-Clause 17.3 [Employer’s Risk], except to the extent that cover is available at commercially reasonable terms.
18.4 Insurance for Contractor’s Personnel
The Contractor shall effect and maintain insurance against liability for claims, damages, losses and expenses (including legal fees and expenses) arising from injury, sickness, disease or death of any person employed by the Contractor or any other of the Contractor’s Personnel.
The Employer and the Engineer shall also be indemnified under the policy of insurance, except that this insurance may exclude losses and claims to the extent that they arise from any act or neglect of the Employer or of the Employer’s Personnel.
The insurance shall be maintained in full force and effect during the whole time that these personnel are assisting in the execution of the Works. For a Subcontractor’s employees, the insurance may be effected by the Subcontractor but the Contractor shall be responsible for compliance with this Clause.
19 Force Majeure
19.1 Definition of Force Majeure
In this Clause, “Force Majeure” means an exceptional event or circumstance
(a) which is beyond a Party’s control.
(b) which such Party could not reasonably have provided against before entering into the Contract,
(c) which, having arisen, such Party could not reasonably have avoided or overcome, and
(d) which is not substantially attributable to the other Party. Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied:
(i) War, hostilities (whether war be declared or not), invasion, act of foreign Enemies,
(ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war,
(iii) Riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors.
(ⅳ) munitions of war, explosive materials, ionizing radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, and
(ⅴ) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity.
19.2 Notice of Force Majeure
If a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shalI give notice to the other Party of the event or circumstances constituting the Force Majeure and shalI specify the obligations, the performance of which is or will be prevented. The notice shalI be given within 14 days after the Party became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure.
The Party shall, having given notice, be excused performance of such obligations for so long as such Force Majeure prevents it from performing them.
Notwithstanding any other provision of this Clause, Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Contract.
19.3 Duty to Minimize Delay
Each Party shall at all times use all reasonable endeavors to minimize any delay in the performance of the Contract as a result of Force Majeure.
A Party shall give notice to the other Party when it ceases to be affected by the Force Majeure.
19.4 Consequences of Force Majeure
If the Contractor is prevented from performing any of his obligations under the Contract by Force Majeure of which notice has been given under Sub-Clause 19.2 [Notice of Force Majeure], and suffers delay and/or incurs Cost by reason of such Force Majeure, the Contractor shall be entitled subject to Sub-Clause 20.1
[Contractor’s Claims] to:
(a) an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4[Extension of Time for Completion], and
(b) lf the event or circumstance is of the kind described in sub-paragraphs (i) to (iv) of Sub-Clause 1 9.1[Definition of Force Majeure] and, in the case of sub-paragraphs (ii) to (iv), occurs in the Country, payment of any such Cost.
After receiving this notice, the Engineer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters.
19.5 Force Majeure Affecting Subcontractor
If any Subcontractor is entitled under any contract or agreement relating to the Works to relief from force majeure on terms additional to or broader than those specified in this Clause’ such additional or broader force majeure events or circumstances shall not excuse the Contractor’s on-performance or entitle him to relief under this Clause.
19.6 Optional Termination, Payment and Release
lf the execution of substantially all the Works in progress is prevented for a continuous period of 84 days by reason of Force Majeure of which notice has been given under Sub-Clause 19.2[Notice of Force Majeure].or for multiple periods which totaI more than 140 days due to the same notified Force Majeure, then either Party may give to the other Party a notice of termination of the Contract.1n this event, the termination Shall take effect 7 days after the notice is given. and the Contractor shall proceed in accordance with Sub-Clause 16.3 [Cessation of Work and Removal of Contractor’s Equipment].
Upon such termination, the Engineer shall determine the value of the work done and issue a Payment Certificate which shall include:
(a) the amounts payable for any work carried out for which a price is stated in the Contract;
(b) the Cost of Plant and Materials ordered for the Works which have been delivered to the Contractor, or of which the Contractor is liable to accept delivery: this Plant and Materials shalI become the property of fund be at the risk of) the Employer when paid for by the Employer, and the Contractor shalI place the same at the Employer’s disposal;
(c) any other Cost or liability which in the circumstances was reasonably incurred by the Contractor in the expectation of completing the Works;
(d) the Cost of removal of Temporary Works and Contractor’s Equipment from the Site and the return of these items to the Contractor’s works in his country (or to any other destination at no greater cost): and
(e) the Cost of repatriation of the Contractor’s staff and labor employed wholly in connection with the Works at the date of termination.
19.7 Release from Pefformance under the Law
Notwithstanding any other provision of this Clause, If any event or circumstance outside the control of the Parties (including, but not limited to, Force Majeure) arises which makes it impossible or unlawful for either or both Parties to fulfill its or their contractual obligations or which. under the law governing the Contract, entitles the Parties to be released from further performance of the Contract, then upon notice by either Party to the other Party of such event or circumstance:
(a) the Parties shall be discharged from further performance, without prejudice to the rights of either Party in respect of any previous breach of the Contract, and
(b) the sum payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 19.6[Optional Termination, payment and Release] if the Contract had been terminated under Sub-Clause 19.6.
20 Claims, Disputes and Arbitration
20.1 Contractor’s Claims puts and Arbitration
If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional Payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shalI give notice to the Engineer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance.
If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim. Otherwise, the following provisions of this Sub-Clause shall apply.
The Contractor shall also submit any other notices which are required by the Contract and supporting particulars for the claim, all as relevant to such event or circumstance The Contractor shalI keep such contemporary records as may be necessary to substantiate any claim, either on the Site Or at another Location acceptable to the Engineer. Without admitting the Employer’s liability, the Engineer may, after receiving any notice under this Sub-Clause, monitor the record-keeping and/or instruct the Contractor to keep further contemporary records. The Contractor shalI permit the Engineer to inspect all these records, and shall (if instructed) submit copies to the Engineer.
Within 42 days after the Contractor became aware (or should have become aware) of the event or circumstance giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor shalI send to the Engineer a fully detailed claim which; includes full supporting particulars of the basis of the claim and of the extension of time and/or additional Payment claimed.
If the event or circumstance giving rise to the claim has a continuing effect:
(a) this fully detailed claim shall be considered as interim;
(b) the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Engineer may reasonably require; and
(c) the Contractor shall send a finaI claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Engineer.
Within 42 days after receiving a claim or any further particulars supporting a previous claim, or within such other period as may be proposed by the Engineer and approved by the Contractor, the Engineer shall respond with approval, or with disapproval and detailed comments. He may also request any necessary further particulars, but shalI nevertheless give his response on the principles of the claim within such time Each Payment Certificate shall include such amounts for any claim as have been reasonably substantiated as due under the relevant provision of the Contract. Unless and until the particulars supplied are sufficient to substantiate the whole of the claim, the Contractor shall only be entitled to payment for such part of the claim as he has been able to substantiate.
The Engineer shall proceed in accordance with Sub-Clause 3.5[Determinations] to agree or determine (i) the extension (if any) of the Time for Completion (before or after its expiry) in accordance with Sub-Clause 8.4[Extension of Time for Completion], and/or (ii) the additional payment (if any) to which the Contractor is entitled under the Contract.
The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any claim, any extension of time and/or additional payment shalI
take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the second paragraph of this Sub-Clause.
20.2 Appointment of the Dispute Adjudication Board
Disputes shall be adjudicated by a DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision].The Parties shall jointly appoint a DAB by the date 28 days after a Party gives notice to the other Party of its intention to refer a dispute to a DAB in accordance with Sub-Clause 20.4. The DAB shall comprise, as stated in the Appendix to Tender, either one or three suitably qualified persons (“the members”).If the number is not so stated and the Parties do not agree otherwise, the DAB shall comprise three persons.
If the DAB is to comprise three persons, each Party shall nominate one member for the approval of the other Party. The Parties shall consult both these members and shall agree upon the third member, who shall be appointed to act as chairman.
However, If a list of potential members is included in the Contract, the members shall be selected from those on the list, other than anyone who is unable or unwilling to accept appointment to the DAB.
The agreement between the Parties and either the sole member ("adjudicator”) or each of the three members shall incorporate by reference the General Conditions of Dispute Adjudication Agreement contained in the Appendix to these General Conditions, with such amendments as are agreed between them.
The terms of the remuneration of either the sole member or each of the three members, shall be mutually agreed upon by the Parties when agreeing the terms of Appointment. Each Party shall be responsible for paying one-half of this remuneration.
lf at any time the Parties so agree, they may appoint a suitably qualified person or persons to replace any one or more members of the DAB. Unless the Parties agree otherwise, the appointment will come into effect If a member declines to act or is unable to act as a result of death, disability, resignation or termination of appointment.
The replacement shall be appointed in the same manner as the replaced person was required to have been nominated or agreed upon, as described in this Sub-Clause. The appointment of any member may be terminated by mutual agreement of both Parties, but not by the Employer or the Contractor acting alone. Unless otherwise agreed by both Parties, the appointment of the DAB (including each member) shalI expire when the DAB has given its decision on the dispute referred to it under Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision], unless other disputes have been referred to the DAB by that time under Sub-Clause 20.4, in which event the relevant date shalI be when the DAB has also given decisions on those disputes.
20.3 Failure to Agree Dispute Adjudification Board
If any of the following conditions apply, namely:
(a) the Parties fail to agree upon the appointment of the sole member of the DAB by the date stated in the first paragraph of Sub-Clause 20.2[Appointment of the Dispute Adjudication [On Board].
(b) either Party fails to nominate a member (for approval by the other Party) of a DAB of three persons by such date,
(c) the Parties fail to agree upon the appointment of the third member (to act as Chairman) of the DAB by such date, or
(d) the Parties fail to agree upon the appointment of a replacement person within 42 days after the date on which the sole member or one of the three members declines to act or is unable to act as a result of death, disability, resignation or termination of appointment,
20.4 Obtaining Dispute Adjudication Board’s Decision
then the appointing entity or official named in the Particular Conditions shall, upon the request of either or both of the Parties and after due consultation with both Parties, appoint this member of the DAB. This appointment shall be final and conclusive. Each Party shall be responsible for paying one-half of the remuneration of the appointing entity or official.
If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, then after a DAB has been appointed pursuant to Sub-Clause 20.2[Appointment of the DA81 and 20.3 [Failure to Agree DAB] either Party may refer the dispute in writing to the DAB for its decision, with copies to the other Party and the Engineer. Such reference shalI state that it is given under this Sub-Clause.
For a DAB of three persons, the DAB shall be deemed to have received such reference on the date when it is received by the chairman of the DAB.
Both Parties shall promptly make available to the DAB all information, access to the Site, and appropriate facilities, as the DAB may require for the purposes of making a decision on such dispute. The DAB shall be deemed to be not acting as arbitrator(s).
Within 84 days after receiving such reference, or the advanced Payment referred to in Clause 6 of the Appendix-General Conditions of the Dispute Adjudication Agreement, whichever date is later, or within such other period as may be proposed by the DAB and approved by both Parties, the DAB shall give its decision, which shall be reasoned and shall state that it is given under this Sub-Clause. However, if neither of the Parties has paid in full the invoices submitted by each member pursuant to Clause 6 of the Appendix, the DAB shall not be obliged to give its decision until such invoices have been paid in full. The decision shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award as described below. Unless the Contract has already been abandoned, repudiated or terminated, the Contractor shall continue to proceed with the Works in accordance with the Contract.
If either Party is dissatisfied with the DAB’s decision, then either Party may, within 28 days after receiving the decision, give notice to the other Party of its dissatisfaction. If the DAB fails to give its decision within the period of 84 days (or as otherwise approved) after receiving such reference or such payment, then either Payment may, within 28 days after this period has expired, give notice to the other Party of its dissatisfaction.
In either event, this notice of dissatisfaction shall state that it is given under this Sub-Clause, and shall set out the matter in dispute and the reason(s) for dissatisfaction-Except as stated in Sub-Clause 20.7 [Failure to Comply with Dispute Adjudication Board’s Decision and Sub-Clause 20.8[Expiry of Dispute Adjudication Board’s Appointment], neither Party shall be entitled to commence arbitration of a dispute unless a notice of dissatisfaction has been given in accordance with this Sub-Clause.
If the DAB has given its decision as to a matter in dispute to both Parties, and no notice of dissatisfaction has been given by either Party within 28 days after it received the DAB’s decision, then the decision shall become final and binding upon both Parties.
20.5 Amicable Settlement
Where notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made.
20.6 Arbitration
Unless settled amicably, any dispute in respect of which the Dab’s decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties:
(a) the dispute shalI be finally settled under the Rules of Arbitration of the International Chamber of Commerce.
(b) the dispute shalI be settled by three arbitrators appointed in accordance with these Rules, and
(c) the arbitration shalI be conducted in the language for communications defined in Sub-Clause 1.4 [law and Language].
The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DAB, relevant to the dispute. Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute.
Neither Party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DAB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DAB shall be admissible in evidence in the arbitration.
Arbitration may be commenced prior to or after completion of the Works. The obligations of the Parties, the Engineer and the DAB shall not be altered by reason of any arbitration being conducted during the progress of the Works.
20.7 Failure to Comply with Dispute Adjudication Board’s Decision
In the event that
(a) neither Party has given notice of dissatisfaction within the period stated in Sub- Clause 20.4[Obtaining Dispute Adjudication Board’s Decision],
(b) the DAB’s related decision (if any) has become final and binding, and
(c) a Party fails to comply with this decision, then the other Party may, without prejudice to any other rights it may have, refer the failure itself to arbitration under Sub-Clause 20.6[Arbitration].Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision] and Sub-Clause 20.5[Amicable Settlement] shall not apply to this reference.
20.8 Expiry of Dispute Adjudication Board’s Appointment
If a dispute arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works and there is no DAB in place, whether by reason of the expiry of the DAB’s appointment or otherwise:
(a) Sub-Clause 20.4[Obtaining Dispute Adjudication Board’s Decision] and Sub-Clause 20.5[Amicable Settlement] shall not apply, and
(b) the dispute may be referred directly to arbitration under Sub-Clause 20.6 [Arbitration].
