Article 1: Scope
The scope of work is restricted to supply, packing, forwarding, transportation, erection, testing and commissioning of Equipments as per agreed BOQ, drawings and technical specifications. This specified scope shall be completed within agreed timelines and in accordance with other provisions and obligations of each Party. Unless specifically agreed by us in writing, no other supply or services shall be considered as part of scope/ deliverable /obligation of Schneider Electric (Seller).
Buyer shall ensure that all civil works are ready on time as per drawings for all equipment; any delay in providing / rework of civil work shall be attributable to Buyer. It is also categorically agreed between the Parties that Seller shall not consider any civil works into their Scope of work.
Article 2: Priority of Documents
The documents forming the Contract are to be taken as mutually explanatory of one another. For the purpose of interpretation, the priority of the documents shall be in accordance with the following sequence:
a) The Contract Agreement
b) Purchase Order
c) Letter of Award
d) Minutes of Meeting
e) Seller’s Offer
f) General Conditions of Contract
g) Schedules & Annexures
h) The Technical Specifications
If any ambiguity or discrepancy arises or round in the documents, the same shall be mutually resolved between the Parties.
Article 3: Drawings / Dimension Sheets
All drawings, data sheets, specifications and other documents submitted for Buyer’s approval shall be approved within 5 days. All such document shall form an integral part of the Contract and same shall be binding upon Parties. The agreed documents, drawings and data sheet shall be duly signed and stamped so as to ascertain the authenticity and correctness.
It is agreed between the Parties that submittal drawings will be submitted within 10 days of Contract coming into Force. The seller shall submit submittal drawing and technical submittal to the Buyer for its approval.
Article 4: Coming into Force
The Contract shall come into force the day when all the following conditions are met:
Agreement / Contract document duly signed by the authorized representatives of both the Parties;
The agreed full advance payment has been received by the Seller, if applicable as per payment terms.
Full access and possession granted to Seller for site activities.
A kick-off meeting between Buyer & Seller held and minutes of meeting distributed
On fulfillment of above conditions, Buyer shall issue a Notice to Proceed (“NTP”) to the Seller, which shall be the Work Starting Date and be construed as Zero (0) date of the agreed schedule. NTP shall be issued only after the completion date of the last conditions (of milestone) from the above conditions. However, the coming into force shall occur within one month of the effective date of the Contract.
Article 5: Offer Validity
Seller’s Offer is valid for 30 days from the date of the Offer after expiry of which it will be subject to confirmation/ revision, if any from Seller’s end.
Article 6: Contract Price
Contract Price is based on scope, specifications, drawing, layout, technical specifications and provisions of the Contract agreed between the Parties. Price is exclusive of freight up to Site for Supplies of Equipment and material. The Contract Price is excluding of “Goods & Service Tax” (GST) and/or any other indirect taxes, duties, levy, cesses, as applicable, which shall be to the Contract on Actual.
Applicable road permit (way bill) or any other applicable permit/ form in Project Site shall be provided by Buyer, for supply of goods. Any tax liability including interest and/or penalty imposed upon seller due to any default or failure of Buyer in providing the applicable way bills, shall be charged from the Buyer.
The Buyer shall make all payment in same currency as mentioned in Seller’s Invoice.
Article 7: Transfer of Risk and Title
Ownership and title to the Products sold under the Contract shall be retained by Seller until the entire purchase price and all other sums due under the Contract have been fully paid, and the Buyer agrees to do all things required to protect Seller’s ownership and title to the Products and not to do anything prejudicial or in any way affecting Seller’s ownership and title to the Products without Seller’s written consent.
Risk of loss or damage to the Products shall pass to the Buyer as per Incoterms agreed in the Contract.
Article 8: Price Variation
The Contract Price / Rates agreed are variable as per IEEMA Price Variation Formulaes (or any other equivalent formulae/index). First date of previous month of the month of signing the Contract shall be the base month for computation of Price Variation.
Following Equipment or material shall be covered under price variation clause:-
1. UPS Systems, PAC, Chillers, PDU, Racks,
2. Transformers, AC Power and Control Cables
3. Structural steel (including perlins, clamps, nuts, bolts etc.)
4. LV and MV switchgear
5. Erection Works (AC/ DC, Structure)
6. Copper or Aluminum bearing Components like Air Insulated Busduct or sandwich type Busduct, Copper Earth Strip etc.
7. Any other equipment as mentioned in the price offer.
The final billing price for any material, equipment or service will be calculated in accordance to Price Variation clauses laid down by IEEMA (or any other equivalent formulae/index).
The price variation shall remain effective for the complete duration of the contract, until formal project closure. This price variation shall also be applicable for any new item that may be included subsequent to finalization of contract.
Article 9: Taxes, Duties and Statutory Variations
All sort of statutory variation including change, addition, deletion, abolition, repeal or reclassification due to change in Law and/ or directive of authorized agency shall be exclusively to the Buyer’s account.
Article 10: Terms of Payment
The Buyer shall release all due payments to the Seller on pro-rata basis within 7 days from date of receipt of relevant documents as per following Terms of Payment:-
10.1 Supply Portion:
Fifteen Percent (15%) of Contract Price as interest free advance against Advance Bank Guarantee (ABG). Advance shall be given within 7 days of submission of ABG.
Next Eighty Percent (80%) with 100% duties and taxes on proof of dispatch of materials against Letter of Credit at sight.
Balance Five Percent (5%) shall be released against Performance Bank Guarantee valid upto Warranty Period.
10.2 Service Portion: (Erection, Testing & Commissioning Services):
Fifteen Percent (15%) of Contract Price as interest free advance against Advance Bank Guarantee (ABG). Advance shall be given within 7 days of submission of ABG.
Next Eighty Percent (80%) with 100% duties and taxes on Erection of Equipment on pro-rata basis.
Balance Five Percent (5%) shall be released on commission of the Equipment
The Seller shall raise progressive running account bills on fortnightly basis. The Buyer shall certify all measurements within 5 days of submission.
In case the Buyer fails to make the due payment within the agreed stipulated timeframe, the Seller shall be eligible to charge an interest @ of 18% per annum on all overdue payments until the duration the payments are received.
Article 11: Variation/Change Management
Either Party shall have the right to propose changes to the other Party that are considered necessary or desirable to improve the quality, efficiency or safety of the works agreed under the Contract.
Such proposal may cover, including but not limited to, scope, design, specification, calculations, makes, sizes, quantity, deliverables, milestones, schedule or documents etc, during the performance of the contract to make any changes, variations, modifications, additions or omissions to, in or from the works (“Change”).
The requesting Party shall prepare the change requirement or request for change (RFC) describing affected item, purpose, justification, impact and effective timelines of such Change.
The requesting Party shall submit the RFC to other Party for analysis and review. The receiving Party, if required, may seek further details, clarifications or information prior to conveying its decision to the requesting party. However, receiving Party shall convey its decision to the requesting party within 7 (seven) calendar days.
On converging to the need for change, the Buyer shall amend the related document within 7 (seven) calendar days including purchase order, agreement, schedules, statement of work or any other necessary document.
Any change upto +/- 10% of the Contract Price (this excludes items covered under price variation clause) may be considered at the agreed Price/ Rates with necessary time extension. However, in case of any change beyond 10%, the same shall be subject to acceptance of revised prices and delivery period by the Seller. For any additional or new work/ requirement, Seller shall evaluate the physical, technical schedule and cost impacts before giving acceptance to the same. However, such work shall be carried out on Cost plus basis which shall be charged Cost + Overheads + 25% Profit margin.
The change shall be binding upon mutual acceptance by both the Parties in writing.
Article 12: Testing Charges/ Inspection
Parties agree that the Seller shall be responsible for regular routine / acceptance test as per scope of work agreed for the final Equipment. However, if the Buyer desires to witness the routine tests, it shall be mutually agreed between the Parties.
Factory Acceptance Test (FAT) shall not be conducted, in case the Buyer wishes to execute FAT, the same shall be carried out with additional cost and time chargeable basis from the Buyer.
In the event of the Buyer’s inspection at manufacturer works, all costs towards logistics, travel, accommodation, conveyance and allowances of the Buyer’s employees shall be borne by the Buyer. The Seller shall provide 3 (three) days prior intimation to the Buyer. However, the Seller shall arrange the permission to carry out the inspection. Soon after clearance of inspection, the Buyer shall provide the Dispatch Authorization within 2 days enabling to ship the Equipment. It is agreed between the Parties that Buyer shall carry out the inspection only for manufactured equipment at manufacturer works.
Equipment Erection, functional testing and commissioning shall be carried out in accordance with the User and Installation Manual at site.
Article 13: Goods Receipts and Storage
Parties agree that all material delivered at designated stores / installation location, the goods receipt shall be issued by the Buyer within 48 hours, failing which it shall deem delivered and accepted by the Buyer. It is also hereby agreed between the Parties that all invoices of works shall be certified by Buyer within 5 days, so that correct and complete invoices are submitted timely.
In case storage of goods is necessary owing to immediate dispatch to destination being impossible due to lack of instructions from the Buyer or Buyer’s default or transport facilities or reasons attributable to the Buyer, the cost of such storage at ½ % per week of basic price along with demurrage charges and incidental charges at actual will be to the Buyer’s account. Besides, the Seller shall not be responsible for any delay or consequential losses thereof.
Article 14: Completion Period
It is agreed between the Parties that Seller shall complete its scope of work as per agreed schedule or as extended by the Buyer. The NTP shall be considered the Work Starting Date of Delivery period. During the delivery period, the Seller shall be entitled to supply the material/ services in partial or entire lots and corresponding payment shall be released by the Buyer.
The Completion period shall be duly extended on occurrence of any of the following conditions:-:
1. Buyer fails or delays to fulfill its obligations, which affects performance.
2. Due payment are not received by the Seller on time.
3. Changes in Scope or terms of the Contract agreed between the Parties.
4. If any hindrance occurs from the Buyer side during the execution of the order.
5. Contract is temporarily suspended
6. Force Majeure conditions beyond reasonable Control of Party
Once the cause of delay is removed, new delivery schedule shall be submitted taking into account the then prevailing conditions. Whilst we would endeavor our best to adhere to the delivery period but we shall not guarantee or take liability with regard hereto.
Article 15: Overall Limitation to Liability
Notwithstanding anything in the Contract to the contrary and to the extent permitted by applicable law, (a) in no event shall either Party, its officers, directors, or employees be liable for any form of incidental, consequential, indirect, special or punitive damages of any kind, or for loss of revenue or profits, loss of business, loss of information or data, or other financial loss, whether such damages arise in contract, tort or otherwise, irrespective of fault, negligence or strict liability or whether such Party has been advised in advance of the possibility of such damages; and (b) the maximum liability of the Seller for any and all claims, losses, damages, costs and expenses arising from or on connection with this Contract shall not exceed the amounts actually received as basic value by the Seller under this Contract.
Article 16: Warranty
The warranty period for the Products UPS will be twelve (12) months from the date of commissioning but no longer than fifteen (15) months from the date of delivery of the products to the Buyer.
The warranty period for the Battery will be twenty-four (24) months from the date of commissioning but no longer than twenty-five (25) months from the date of delivery of the products to the Buyer.
Products
During warranty for the Products, the Seller undertakes to repair and/or replace any part found to be faulty due to errors in design or manufacture, or to be made of faulty materials. complaints of defects in Products delivered shall be made in writing or over call at Seller’s Call Center, and without any delay, as soon as the defect is discovered.
The warranty will only be honored, when repairs have been carried out by the Seller or its authorized agents with the Seller genuine parts. The defective parts shall be forwarded or taken by seller as per agreement to the Seller for repair or replacement. The defective parts remain the property of the Seller. For goods supplied by the Seller's subcontractor, the Seller will ensure that all such goods that carry a manufacturer’s warranty are registered with the manufacturer in Buyer’s name. If the Seller performs repairs on Buyer’s site, the warranty shall cover only the material and the effective working hour costs.
This warranty does not cover damage or defect caused to the extent of the Buyer’s misuse, improper application, wrong or inadequate electrical current or connection, inadequate water or drain services, negligence, inappropriate on-site operating conditions, corrosive atmosphere, repair by non designated personnel, accident in transit, tampering, alterations, a change in location or operating use, exposure to the elements, force majeure events, theft or installation contrary to Seller's recommendations or specifications, or in any event if the Seller serial number has been altered, defaced or removed.
Services
All Services performed for the Buyer shall be in a professional workman-like manner in accordance to industry standards. In the event any deficiencies are discovered in the Services resulting from the Seller's failure to comply with the above standards and the Buyer promptly notifies the Seller thereof in writing, but in no event later than thirty (30) days following completion of the Services, the Seller shall provide remedial Services at no cost to the Buyer to correct such deficiencies. The warranties set forth in this clause constitute the Seller’s sole liability and the Buyer’s exclusive remedy for any breach of such warranties.
To the extent permitted by applicable law, the Seller disclaims all implied warranties of merchantability, satisfaction and fitness for a particular purpose. The warranties set forth in this section constitute the Seller’s sole liability and the Buyer’s exclusive remedy for any breach of such warranties. THESE WARRANTIES ARE BUYER’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Article 17: Buyer’s Obligations
During the entire duration of the Contract, both Parties shall ensure to fulfillment their obligations in the manner described in the Contract.
Unless specifically agreed between the Parties otherwise, the electricity, water and gas required for construction purposes (connection and consumption) shall be provided by the Buyer free of cost during the entire performance of the Contract.
Unless specifically agreed between the Parties otherwise, site office, storage for Equipment & material, security of stores and site shall be provided by the Buyer free of cost during the entire performance of the Contract.
Article 18: Assignment and Sub-Contract
Either Party shall not assign the Contract (part or whole) or any of its obligations without prior written consent of the other Party, even if this entity belongs to the same group of companies.
The Seller shall be permitted to sub-contract (part of whole) of the work to any third party sub-contractor-. However, this shall not absolve the Seller from the performance and responsibilities of the Contract.
Article 19: Intellectual Property
Any drawings, designs, technical documents, know-how and confidential information whether patented or not, submitted or furnished to the other Party prior or after the effective date of the Contract, shall remain the exclusive property of respective Party. The Seller shall grant to the Buyer the non-exclusive, nontransferable and terminable on default right to use the software or IPR supplied, on the relevant site only. The grant of this right doesn’t transfer any property or license rights on the software, which remains in any case the property of the Seller or its sub-contractor.
SOFTWARE LICENSE: The Seller hereby grants to the Buyer a single, non-exclusive license to use any Software furnished to Buyer, terminable on default, hereunder for Buyer's use at the specified site. This license shall not include any right to assign, sublicense, distribute or otherwise transfer such license. No title to or ownership of the Software or any unmodified parts thereof is transferred to Buyer under this license. Buyer shall not copy any Software in whole or in part in any visual or machine readable form, except to the extent such copying is necessary in connection with Buyer's use of the Products, or for correcting, generating, or modifying the Software for the Buyer's authorized use. Each copy of any Software, including the storage media containing Software, shall be marked with a confidential notice indicating that it contains confidential information of the Seller. If, at any time, the Seller provides updated Software to Buyer, such updated Software shall be subject to all the terms and conditions of this Software license and the underlying Contract. Upon termination of the license granted herein as to any Software or upon termination of any agreement relating to said Software, the Software and all copies and updates thereof shall be returned to the Seller. For software not manufactured by the Seller (as defined as software associated with externally sourced hardware) that is provided to the Buyer as part of the Seller product, the Buyer shall adhere to the software license terms as outlined by the actual software manufacturer.
Article 20: Intellectual Property Indemnification
The Seller will defend, indemnify, and hold harmless Buyer as to any rightful claim that Buyer's use or sale of Products infringes an Indian patent or copyright, provided that the Buyer gives the Seller prompt written notice of the claim, allows the Seller to have sole control of the defense or settlement thereof, and cooperates fully with the Seller’s defense or settlement. In the defense or settlement of a claim, or if use of the Products is enjoined, the Seller may, at its expense and option: (a) procure for the Buyer the right to continue using the Products; (b) replace or modify the Products so they become non-infringing; or if neither of these is practical, (c) grant Buyer a credit for the Products as depreciated and accept return of any goods. Depreciation shall be an equal yearly amount over the lifetime of the Products, as established by the Seller.
The Seller will not be liable to the Buyer for any claim that is based upon: (I) use of the Products in modified form or in a manner for which they were not designed; (ii) use of the Products in combination with goods or services not provided by the Seller; (iii) use of the Products in practicing any process; or (iv) furnishing to the Buyer of any information, service or applications assistance. In no event shall the Seller’s total liability to the Buyer under or as a result of compliance with the provisions of this Section exceed the aggregate sum paid to the Seller by the Buyer for the allegedly infringing Product. The foregoing states the entire liability of the Seller with respect to infringement of patents or copyrights by any Products provided by the Seller. The Buyer shall hold the Seller harmless against any expense, judgment, or loss for infringement of any patents, copyrights or trademarks which results from the Seller’s compliance with the Buyer's designs, specifications, or instructions and shall defend, indemnify, and hold harmless the Seller for all costs, including attorneys' fees, of defending against any such claims.
Article 21: Liquidated Damages
If the Seller fails to meet Completion Schedule as mutually agreed, the Buyer shall have the right to recover or deduct from the Seller’s due claims an amount equivalent to 0.25% of the unexecuted portion of the Contract value per week until the equipment is delivered or activity is performed, subject to a maximum ceiling of 2.5% of the unexecuted portion of contract value. Such liquidated damages shall be the sole remedy available to the Buyer against the Seller against said delay in achievement of overall completion period. The said liquidated damage shall be applicable only in case the delays are solely attributable to the Seller. Further Liquidated Damages will be the sole and exclusive remedy available to the Buyer in case of delays apart from right of termination once the cap is reached.
Article 22: Communication
Any written communication exchanged or recorded with or between the Parties through any media including emails, minutes of meetings, letters, faxes, transmittals and emails shall hold good and effective for conveying the instructions or directions or requirements to each other, under this Contract.
Article 23: Suspension
If the Buyer fails to comply with the provisions of this Contract, the Seller may, after giving not less than 14 days' notice to the Buyer, suspend work or reduce the rate of work. If the Buyer subsequently cures the failure as specified in the notice, the Seller shall resume normal working as soon as is reasonably practicable.
If the Seller 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 Seller shall give notice to the Buyer and shall be entitled to an extension of time for any such delay, if completion is or will be delayed and payment of any such Cost, which shall be included in the Contract Price to Buyer.
If the suspension under this Sub-Clause continues for a continues period of 60 days then the Seller may, upon giving 14 days' notice to the Buyer, terminate the Contract. Upon such termination, Seller shall be entitled to payment of amounts for the works already carried out and all other incidental costs incurred including costs of material already ordered or under production, cost of demobilizing and liabilities due to vendors and sub-contractors of the Seller.
Article 24: Termination / Cancellation
Either Party can terminate the Contract with prior written notice of 30 days to the other Party for any of the following reasons:
a) Insolvency, receivership or bankruptcy proceedings are commenced by or against the Party;
b) Party makes a general arrangement for the benefits of its creditors;
c) Party abnormally delays or fails to fulfill its contractual obligations including, but not limited to, approval and timely payments etc.
d) Any material breach or representations or warranties made was false or intentionally misleading when made.
e) The occurrence of Force Majeure event continues for 3 months or above.
f) Buyer fails to take delivery of material due to whatever reasons for more than 3 months.
g) Repetitive suspension of work or equipment deliveries are withheld beyond 3 months
h) A change in Law of any Government Authority where performance of contractual obligations are not feasible or possible.
Termination by Employer for default
If the Seller is in default, this clause for termination can only be accepted for
- Notice of termination to be in writing
- Termination only in case of material breach and that to if it is not remedied within a predefined period of time. If possible, termination will be limited to only in respect of the part of the scope of work affected by the non-performance. scope of work
In cases of delay caused by the Seller, termination should only be possible after maximum amount of liquidated damages has been reached
Termination by the Seller
The Seller can terminate/ cancel the Contract with prior written notice of 30 days to the Buyer for any of the following reasons:-
a) Insolvency, receivership or bankruptcy proceedings are commenced by or against the Buyer;
b) Seller's payment are withheld /suspended beyond reasonable time limit;
c) Buyer fails to fulfill its contractual obligations
d) Any material breach or representations or warranties made was false or intentionally misleading when made.
e) Buyer assigns or transfers the Contract or any right or interest herein other than in accordance with the Contract.
f) Persistently fails to timely comply its obligations including approval/ certifications of drawings, documents, measurements or other inputs.
g) The occurrence of Force Majeure event continues for 3 months or above.
h) Buyer fails to take delivery of material due to whatever reasons for more than 3 months.
i) Repetitive suspension of work due to reasons attributable to Buyer.
j) A change in Law of any Government Authority, where performance of contractual obligations are not feasible or possible.
k) Buyer fails to provide encumbrances free land for Project work or access or approach is restricted.
In any case of termination and/or project being scraped/ purged for whatever reasons, the Seller shall receive from Buyer the full payment towards all the work performed, including but not limited to, certified or not; all payments due towards confirmed commitments with respect to costs of materials, goods and services ordered by the Seller with its Sub-contractor or Sub-suppliers for performance of this Contract, including the once delivered at site and/or are under transit/ or under manufacturing at Sellers’ manufacturing plant.
The Seller shall also be entitled for payment with reasonable profit by the Buyer on the part of the terminated works; Payment of a sum representing 10% of the contract price as a termination fee.
In addition, the Seller shall have all other rights and remedies to which he is entitled under this Contract and/or at law.
Article 25: Force Majeure
No delay or failure by either of the Parties in the performance of this Contract shall give rise to any claim by the other Party or shall deemed to be a breach of this Contract if such delay or failure is the result of occurrence and/or continuation of any one or more events or circumstances of the Force Majeure.
Force Majeure means any occurrence or event that is beyond the reasonable control of a Party hereto, including, but not limited to,
(a) Fire, flood, flooded land, rains, snow, lightning, drought, storm, typhoon, earthquake, tsunami, ash clouding, inundated with sea/ river water, tornado, landslide, subsidence, natural disasters, natural Calamity, washout or epidemic or Pandemic or Quarantine Situation or unusual inclement weather, unfavorable weather conditions (foreseeable or unforeseeable) or unusual project site or sea conditions any other similar conditions or acts of God; etc.;
(b) War, (declared or not) hostilities, explosions, insurrection, rebellion, sabotage, vandalism, invasion, riots, strikes, freight embargos, social commotion; agitations, labour disturbances, turbulence, accident, casualties, civil war, or any other act of public enemies, etc.
(c) Acts or omissions of any court, legislative, judicial or executive body, or other governmental authority (such as a taking by condemnation or power of eminent domain), any expropriation or confiscation of facilities, compliance with any order of any governmental authority, changes of law etc..
Any Party that is affected by an Event of Force Majeure shall given written notice thereof to the other Party no later than 15 (fifteen) days following the date of occurrence of the Event of Force Majeure in question, providing appropriate details thereof. If performance under this Agreement is delayed as a result of continuation of the Event of Force Majeure, the time allowed to comply with such obligation shall be extended for as long as the relevant event of Force Majeure causing such delay or suspension continues. If the Event of Force Majeure continues for a period of (3) three months, then either Party may suspend the Contract by providing notice to the other Party and both the Parties shall mutually discuss and agree for the suitable next steps to be taken up. For such time, the suspension is in force, the Buyer shall provide the equitable extension to the Seller. In case Parties to the Contract decides to terminate the Contract, Parties to the Contract to settle their account with each other without any damages or cost. The Seller shall be entitled for the entire cost of work done. The consequences of termination under this Clause would be similar to termination at convenience of the Buyer.
Article 26: Applicable Law and Dispute Resolution
The Contract shall be governed by and interpreted in accordance with the laws of India for every purpose. The Parties agree that, any and all disputes, claims, controversy or causes of action (‘Dispute”) which the Parties are unable to resolve for any reason after negotiations, shall be completely and finally settled by submission of any such Dispute to arbitration under the rules conciliation and arbitration of The Arbitration and Conciliation Act, 1996 (“IAC”) then in effect. For resolution of any Dispute, each Party shall appoint one arbitrator and the third arbitrator, who shall act as Presiding Officer will be appointed by the selected two Arbitrators. Any arbitration proceeding shall take place at Bangalore.
The language of the arbitration shall be English. Any award made by the arbitrators shall be final and binding on the Parties. The Contract shall be subject to exclusive jurisdiction of appropriate court of Bangalore jurisdiction for the purposes only of compelling compliance with the above arbitration provisions and for enforcement of any arbitration award made in accordance with the above provisions.
Article 27: Provisional Acceptance
All supplies of material or service works executed by the Seller shall be certified by the Buyer within 5 days of submission of its documents or measurement sheets or invoices.
Upon completion of the following conditions, the Buyer shall issue a Provisional Acceptance Certificate to the Seller.
All Equipment are installed, tested and commissioned in accordance with User and Installation Manuals or as per instructions of the Buyer representative;
However, any punch-list points so noticed shall not be any hurdle for issuing the Provisional Acceptance Certificate (PAC). The Seller shall be authorized attend punch list points after issuance of PAC.
In case the setup is partial commissioned or equipment are put in service, the Buyer shall issue the partial PAC. However, as soon as the Equipment is commissioned or charged, the EAR insurance policy shall stands lapsed and Buyer shall have to arrange suitable Operational insurance at its own cost and risk.
Article 28: Final Acceptance
Upon completion of the following conditions, the Buyer shall issue a Final Acceptance Certificate to the Seller.
Material reconciliation has been submitted to the Buyer.
Any and all defects notice during testing have been rectified by the Seller;
All as-built drawings and Installation and Operation Manuals handed over to the Buyer.
All debris, scraps and excess material have been removed from site by the Seller. The date of stated on Final Acceptance Certificate shall be the date on which all works have been performed to the Buyer’s satisfaction. This shall also confirm that all contractual obligations have been fulfilled by the Seller and the Buyer has fully accepted the setup.
If the Buyer, for reasons not attributable to the Seller, fails to timely issue acceptance certificate or if the Buyer takes equipment / system into commercial service before issuing acceptance certificate or if the Buyer, despite timely advance notice, does not participate in acceptance tests then such acts of the Buyer would amount to deemed acceptance of the System/equipment. In case of deemed acceptance, the Seller to be authorized to issue acceptance certificate or a substitute document (test protocol or the like), which should be defined as having the same effect as an acceptance certificate issued by the Buyer. Upon acceptance or "deemed" acceptance as the case may be the risk of system installed or equipment supplied shall be treated as transferred from the Seller to the Buyer.
Any delay in Final Acceptance of setup does not impact the start of warranty and warranty of product and system is as per Article 16.
Article 29: General Indemnification
Each Party shall indemnify, defend and hold harmless the other Party and their respective officers, directors, employees and agents from and against any and all third party demands for damages, costs and expenses (including reasonable legal fees) directly relating to or arising from injury or death to persons, or damage or loss to property to the extent directly caused by the negligence or willful misconduct of that party, provided that the indemnified Party:
(a) gives the indemnifying Party prompt written notice of such claim; and (b) cooperates with the indemnifying Party, at the indemnifying Party’s expense, in the defense of such claim.
The indemnifying Party shall not be responsible for any settlement made by the indemnified without the indemnifying Party’s prior written consent.
Article 30: Insurance
The Seller shall take out and maintain in effect, during the performance of the Contract, Transit and Erection All Risk Insurance policy covering the performance of its Scope of works. The Seller shall cover the risks associated with its manpower, vehicles, tools and tackles for maximum to the value of contract.
The Buyer shall take out and maintain applicable insurances of land / building / site and third party liabilities arising out the project. In case of Buyer supplied free issue material, the Buyer shall take the comprehensive insurance policy for complete duration of project
In the event of an insurance claims is being made by the Seller, the Buyer shall issue an NOC with respect to the proceeds of such claims so that the Seller may collect such proceeds.
As soon as any Equipment or system is commissioned / charged, the EAR insurance policy shall lapse and the Buyer has to cover the same through appropriate operational insurance coverage.
Article 31: Confidentiality / Do Not Disclose (DND)
A) Description of Confidential Information. Any and all information disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party"), or to which the Receiving Party is exposed during or as a result of or in connection with the performance of this Agreement, and that is marked as "Confidential" or with a similar legend or, in the event of an intangible disclosure, is of a nature that one would reasonably expect to be treated as “Confidential”, will be deemed "Confidential Information," unless such information falls under one of the exceptions set forth below. Without limiting the foregoing definition, The Seller’s confidential information shall specifically include, but shall not be limited to, the terms and conditions of this Contract, regardless of whether such information is identified as confidential or confirmed in writing.
B) Exceptions to Confidential Information. Confidential Information will not include any information that (a) was publicly available at the time of disclosure; (b) became publicly available after disclosure without breach of this Contract by the Receiving Party; (c) was in the Receiving Party's possession prior to disclosure, as evidenced by the Receiving Party's written records, and was not the subject of an earlier confidential relationship with the Disclosing Party; (d) was rightfully acquired by the Receiving Party after disclosure by the Disclosing Party from a third party who was lawfully in possession of the information and was under no obligation to the Disclosing Party to maintain confidentiality; or (e) is independently developed by the Receiving Party's employees or agents who have not had direct or indirect access to the Confidential Information. Even if Confidential Information may fall under one of the exceptions set forth above, the Receiving Party shall not disclose to any third party that such information is used in any way by the Disclosing Party, the manner in which such information is used, and that the information is considered a trade secret of the Disclosing Party.
C) Maintenance of Confidentiality. The Receiving Party shall hold any Confidential Information disclosed to it, or to which it is exposed, in confidence; to cause its employees or agents to hold such Confidential Information in confidence; and to use the same standard of care used to protect its own proprietary and confidential information, but not less than a reasonable degree of care, in protecting the Confidential Information.
D) Limited Use and Disclosure. The Receiving Party shall not disclose Confidential Information to others or use it except as required to perform its obligations under this Agreement. The Receiving Party will limit disclosure of Confidential Information to those employees having a need to know and who have been advised of the obligation of confidentiality and have agreed to be bound in like fashion. Receiving Party may disclose Confidential Information to its agents, sub-contractors, or others who have a need to know if necessary for the Receiving Party to perform under this Contract, provided that the agents have agreed to be bound by a written obligation of confidentiality or have an existing legal obligation of confidentiality. The Receiving Party may disclose Confidential Information pursuant to a judicial order or other compulsion of law, provided that the Receiving Party shall (a) provide to the Disclosing Party prompt notice of such order; (b) use reasonable efforts to maintain the confidential nature of Confidential Information to the extent permitted by law; and (c) and comply with any protective order imposed on such disclosure.
Article 32: Export Compliance
The deliverables provided by Seller under this Contract contain or may contain components and/or technologies from the United States of America (“US”), the European Union (“EU”) and/or other nations. Buyer acknowledges and agrees that the supply, assignment and/or usage of the products, software, services, information, other deliverables and/or the embedded technologies (hereinafter referred to as “Deliverables”) under this Contract shall fully comply with related applicable US, EU and other national and international export control laws and/or regulations. Unless applicable export license/s has been obtained from the relevant authority and the Seller has approved, the Deliverables shall not (i) be exported and/or re -exported to any destination and party (may include but not limited to an individual, group and/or legal entity) restricted by the applicable export control laws and/or regulations; or (ii) be used for those purposes and fields restricted by the applicable export control laws and/or regulations. Buyer also agrees that the Deliverables will not be used either directly or indirectly in any rocket systems or unmanned air vehicles; nor be used in any nuclear weapons delivery systems; and will not be used in any design, development, production or use for any weapons which may include but not limited to chemical, biological or nuclear weapons. If any necessary or advisable licenses, authorizations or approvals are not obtained, whether arising from inaction by any relevant government authority or otherwise, or if any such licenses, authorizations or approvals are denied or revoked, or if the applicable export control laws and/or regulations would prohibit Seller from fulfilling any order, or would in Seller’s judgment otherwise expose Seller to a risk of liability under the applicable export control laws and/or regulations if it fulfilled the order,
Seller shall be excused from all obligations under such order and/or this Contract.
Article 33: Miscellaneous
A. Set off
Buyer shall not have the right to set off under this Contract.
B. Overrun Charges
The time considered for completion and handing over of this project is ....... month. If time required for commissioning needs to be extended by reasons not attributable to us including delay in civil works, release of work fronts etc., or in case our work crew is rendered idle due to any cause not attributable to us, we shall be paid an additional charges @ INR ......... per man-day/month.
C. Water & Electricity
The Purchaser shall provide water and Power at free of cost to the supplier / contractor for construction / installation / cleaning / testing purposes.
The Purchaser shall arrange for the supply of good quality potable water at site, for the supplier / contractor labour at site.
D. Storage of Materials & Equipment at Site
The Purchaser shall, at his own cost, provide access to adequate storage sheds and yards at the Site, at locations near to the project site, for all materials and equipment that are to be incorporated in the Work. This shall be for all the materials and equipment, supplied by the Contractor / Supplier or any Sub-Contractor/ Supplier. In addition to being water-tight and weather-proof, the storage facilities shall be of such a manner that all the materials and equipment are adequately protected in every way from any deterioration or contamination or damage or theft whatsoever, and to the complete satisfaction of supplier
E. Disclaimer
It is to be categorically noted that NO order shall be treated as enforced or acceptable to Seller unless and until it is in line with above terms and conditions; or mutually accepted by Seller in writing. In such cases, Seller shall be absolved from all contractual liabilities to execute such order and Seller shall not be in a position to entertain any claims arising out of such order. Even if any such order is taken forward for execution by Seller in best interest of relation, the clauses/ terms not in-agreement cannot be treated as acceptable and enforced upon Seller.
F. Epidemic and Pandemic Disclaimer
Seller reserves the right to amend, withdraw or otherwise alter this submission without penalty or charge as a result of any event beyond its control arising from or due to the any epidemic / pandemic/ COVID-19 or events subsequent to epidemic / pandemic including changes in laws, regulations, by laws or direction from a competent authority.