Luật sư tư vấn pháp luật trực tuyến qua điện thoại gọi: 1900.6162
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CONDITIONS OF CONTRACT
Definitions và Interpretation
1.1.
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Definitions
In the Contract (as hereinafter defined) the following words and expressions shall have sầu the meanings hereby assigned to lớn them, except where the context otherwise requires:
(a) (i) “Employer” means ABC. Co. Ltd. & the legal successors in title to such person, but not (except with the consent of the Contractor) any assignee of such person.
(ii) “Contractor” means the person whose Tender has been accepted by the Employer và the legal successors in title lớn such person, but not (except with the consent of the Employer) any assignee of such person.
(iii) “Subcontractor” means any person named in the Contract as a Subcontractor for a part of the Works or any person to whom a part of the Works has been subcontracted with the consent of the Engineer và the legal successors in title to lớn such person, but not any assignee of any such person.
(iv) “Engineer” means the person appointed by the Employer khổng lồ act as a Engineer for the purposes of the Contract and carry out any of his duties and authority specified in Sub-Clause 2.1, & named as such in Appendix khổng lồ Tender.
(v) “Engineer’s Representative” means a person appointed from time to lớn time by the Engineer under Sub-clause 2.2.
(b) (i) “Contract” means these Conditions, the Specification, the Drawings, the Bill of Quantities, the Tender, the Letter of Acceptance, the Contract Agreement (if completed) và such further documents as may be expressly incorporated in the Letter of Acceptance or Contract Agreement (if completed).
(ii) “Specification” means the specification of the Works included in the Contract và any modification thereof or addition thereto made under Clause 51 or submitted by the Contractor and approved by the Engineer.
(iii) ”Drawings” means all drawings, calculations và technical information of a lượt thích nature provided by the Engineer khổng lồ the Contractor under Contract and all Drawings, calculations, samples, patterns, models, operation và maintenance manuals and other technical information of a lượt thích nature submitted by the Contractor và approved by the Engineer.
(iv) “Bill of Quantities“ means the priced và completed bill of quantities forming part of the Tender.
(v) “Tender” means the Contractor‘s priced offer to the Employer for the execution & completion of the Works và remedying of any defects therein in accordance with the provisions of the Contract, as accepted by the Letter of Acceptance.
(vi) “Letter of Acceptance” means the formal acceptance by the Employer of the Tender.
(vii) “Contract Agreement” means the contract agreement (if any) referred lớn in Sub-Clause 9.1
(viii) “Appendix lớn Tender” means the appendix comprised in the form of Tender annexed lớn these Conditions.
(c) (i) “Commencement Date” means the date upon the Contractor receives the notice to lớn commence issued by the Engineer pursuant khổng lồ Clause 41.
(ii) “Time for Completion” means the time for completing the execution of and passing the Tests on Completion of the Works or any section or part thereof as stated in the Contract (or as extended under Clause 44) calculated from the Commencement Date.
(d) (i) “Tests on Completion” means the tests specified in the Contract or otherwise agreed by the Engineer & the Contractor which are khổng lồ be made by the Contractor before the Works or any Section or part thereof taken over by the Employer.
(ii) “Taking-Over Certificate “ means a certificate issued pursuant khổng lồ Clause 48.
(e) (i) “Contract Price” means the sum stated in the Letter of Acceptance as payable lớn the Contractor for the execution & completion of the Works và the remedying of any defects therein in accordance with the provisions of the Contract.
(ii) “Retention Money” means the aggregate of all monies retained by the Employer pursuant to Sub-clause 60.2 (a).
(iii) ”Interyên Payment Certificate” means any certificate of payment issued by the Engineer other than the Final Payment Certificate.
(iv) Final Payment Certificate” means the certificate of payment issued by the Engineer pursuant lớn Sub-Clause 60.8.
(f) (i) “Works” means the Permanent Works & the Temporary Works or either of them as appropriate.
(ii) “Permanent Works” means the permanent works lớn be executed (including Plant) in accordance with the Contract.
(iii) “Temporary Works” means all temporary works of every kind (other than Contractor’s Equipment) required in or about the execution và completion of the Works and remedying of any defects therein.
(iv) ”Plant” means machinery, apparatus & the like intended to size or forming part of the Permanent Works.
(v) “Contractor’s Equipment” means all appliances and things of whatsoever nature (other than temporary Works) required for the execution and completion of the Works & the remedying of any defects therein, but does not include Plant, materials or other things intended khổng lồ form or forming part of the Permanent Works.
(vi) ”Section” means a part of the Works specifically identified in the Contract as a Section.
(vii) “Site” means the places provided by the Employer where the Works to lớn be executed và any other places as may be specifically designated in the Contract as forming part of the Site.
(g) (i) “cost” means all expenditure properly incurred or lớn be incurred, whether on or off the site, including overhead & other charges properly allocable thereto but does not include any allowance for profit.
(ii) “day” means calendar day.
(iii) “foreign currency” means a currency of a country other than that in which the Works are to be located.
(iv) “writing” means any hand-written, type-written, or printed communication, include telex, cable and facsimile transmission.
Headings và Marginal Notes
1.2 The heading & marginal notes in these Conditions shall not be deemed part thereof or be taken inlớn consideration in the interpretation or construction thereof or of the Contract.
Interpretation
1.3 Words importing persons or parties shall include firms and corporations và any organisation having legal capađô thị.
Singular and Plural
1.4 Words importing the singular only also include the plural và vice versa where the context requires.
Notices, Consents, Approvals, Certificates và Determinations
1.5 Whenever in the Contract provision is made for the giving or issue of any notice consent, approval, certificate or determination by any person, unless otherwise specified such notice, consent, approval, certificate or determination shall be in writing và the words: ”notify”, “certify” or “determine” shall be construed accordingly. Any such consent, approval, certificate or determination shall not unreasonably be withheld or delayed.
ENGINEER AND ENGINEER’S REPRESENTATIVE
Engineer’s Duties and Authority
2.1 (a) The Engineer shall carry out the duties specified in the Contract.
(b) The Engineer may exercise the authority specified in or necessarily khổng lồ be implied from the Contract, provided, however, that if the Engineer is required, under the terms of his appointment by the Employer, lớn obtain the specific approval of the Employer before taking any of the following actions:
(i) approving subletting of any part of the Works under Clause 4,
(ii) certifying additional cost determined under Clause 12,
(iii) determining an extension of time under Clause 44,
(iv) issuing a variation under Clause 51, except in an emergency situation, as reasonable by the Engineer, or of such variation would increase the Contract Price less than 2.00 %,
(v) issuing a Taking-Over Certificate pursuant to Clause 48.1, a Defects
(vi) certifying payment of retention amounts pursuant khổng lồ Clause 60.3 or payment after termination pursuant to lớn Clause 63.3.
Provided further that any requisite approval shall be deemed lớn have been given by the Employer for any such authority exercised by the Engineer.
(c) Except as expressly stated in the Contract, the Engineer shall have sầu no authority khổng lồ relieve the Contractor of any of his obligations under the Contract.
Engineer’s Representative
2.2 The Engineer’s Representative shall be appointed by and be responsible lớn the Engineer & shall carry out such duties and exercise such authority as may be delegated to him by the Engineer under Sub-Clause 2.3
Engineer’s Authority lớn Delegate
2.3 The Engineer may from time lớn time delegate lớn the Engineer’s Representative any of the duties và authorities vested in the Engineer & he may at any time revoke such delegation. And such delegation or revocation shall be in writing and shall not take effect until a copy thereof delivered to lớn the Employer và the Contractor.
Any communication given by the Engineer’s Representative khổng lồ the Contractor in accordance such delegation shall have sầu the same effect as thought it had been given by the Engineer. Provided that:
(a) any failure of Engineer’s Representative lớn disapprove any work, materials or plant shall not prejudice the authority of the Engineer to lớn disapprove such work, materials or Plant and to give instructions for the rectification thereof; and
(b) if the Contractor questions any communication of the Engineer’s Representative he may refer the matter to lớn the Engineer who shall confirm, reverse or vary the contents of such communication.
Appointment of Assistance
2.4 The Engineer or the Engineer’s Representative may appoint any number of persons to assist the Engineer’s Representative sầu in the carrying out of his duties under Sub-Clause 2.2. He shall notify khổng lồ the Contractor the names, duties and scope of authority of such persons. Such assistants shall have no authority lớn issue any instructions to the Contractor save in so far as such instructions may be necessary to enable them to lớn carry out their duties and lớn secure their acceptance of materials, Plant or workmanship as being in accordance with the Contract và any instructions given by the Engineer’s Representative.
Instructions in Writing
2.5 Instructions given by the Engineer shall be in writing, provided that if for any reason the Engineer considers it necessary to give sầu any such instruction orally, the Contractor shall comply with such instruction. Confirmation in writing of such oral instruction given by the Engineer, whether before or after the carrying out of the instruction, shall be deemed khổng lồ be an instruction within the meaning of this Sub-Clause. Provided further that if the Contractor, within 7 days, confirms in writing to the Engineer any oral instruction of the Engineer và such confirmation is not contradicted in writing within 7 days by the Engineer, it shall be deemed lớn be an instruction of the Engineer.
The provisions of this Sub-Clause shall equally apply to instructions given by the Engineer’s Representative sầu and any assistants of the Engineer or the Engineer’s Representative sầu appointed pursuant to Sub-Clause 2.4.
Engineer to lớn Act Impartially
2.6 Whenever under Contract, the Engineer is required lớn exercise his discretion by:
(a) giving his decision, opinion or consent,
(b) expressing his satisfaction or approval,
(c) determining value, or
(d) otherwise taking action which may affect the rights và obligations of the Employer or the Contractor
he shall exercise such discretion impartially within the term of the Contract and having regard to all the circumstances. Any such decision, opinion, consent, expression of satisfaction, or approval, determination of value or action may be opened up, reviewed or revised as provided in Clause 67.
ASSIGNMENT AND SUBCONTRACTING
Assignment of Contract
3.1 The Contractor shall not, without the prior consent of the Employer (which consent, notwithstanding the provisions of Sub-Clause 1.5, shall be at the sole discretion of the Employer), assign the Contract or any part thereof, or any benefit or interest therein or thereunder, otherwise than by:
(a) a change in favour of the Contractor’s bankers of any monies due or khổng lồ become due under the Contract, or
(b) assignment lớn the Contractor’s insurers (in cases where the insurers have discharged the Contractor’s loss or liability) of the Contractor’s right to obtain relief against any other các buổi tiệc nhỏ liable.
Subcontracting
4.1 The Contractor shall not subcontract the whole of the Works. Except where otherwise provided by the Contract, the Contractor shall not subcontract any part of the Works without the prior consent of the Engineer. Any such consent shall not relieve the Contractor from any liability or obligation under the Contract và he shall be responsible for the acts, default & neglects of any subcontractor, his agents, servants or workmen as fully as if they were the acts, defaults or neglects of the Contractor, his agents, servants or workmen.
Provided that the Contractor shall not be required lớn obtain such consent for:
(a) the provision of labour,
(b) the purchase of materials which are accordance with the standards specified in the Contract, or
(c) the subcontracting of any part of the Works for which the Subcontractor is named in the Contract.
Assignment of Subcontractor’s Obligations
4.2 In the sự kiện of a Subcontractor having undertaken towards the Contractor in respect of the work executed, or the goods, materials, Plant or services supplied by such Subcontractor, any continuing obligation extending for a period exceeding that of the Defects Liability Period under the Contract, the Contractor shall at any time, after the expiration of such Period, assign to lớn the Employer, at the Employer ‘s request và cost, the benefit of such obligation for the unexpired duration thereof.
CONTRACT DOCUMENTS
Language(s) and Law
5.1 (a) The language of the Contract is the English language và Vietnamese language with the same value. All documents and correspondence khổng lồ be prepared and produced under the Contract shall be written in the English language & Vietnamese language. In case of any discrepancy or ambiguity, the English language shall prevail upon,
(b) The Contract shall be governed by and construed in accordance with the laws of The United Kingdom.
Priority of Contract Documents
5.2 The several documents forming the Contract are to be taken as mutually explanatory of one another but in case of ambiguities or discrepancies the same shall be explained and adjusted by the Engineer who shall thereupon issue to the Contractor instructions thereon & in such sự kiện, unless otherwise provided in the Contract, the priority of the documents forming the Contract shall be as follows:
(1) The Contract Agreement (if completed);
(2) The Letter of Acceptance;
(3) The Tender;
(4) These Conditions; and
(5) Any other document forming part of the Contract.
Custody and Supply of Drawings and Documents
6.1 The Drawing shall remain in the sole custody of the Engineer, but two copies thereof shall be provided lớn the Contractor không tính tiền of charge. The Contractor shall make at his own cost any further copies required by hyên ổn. Unless it is strictly necessary for the purposes of the Contract, the Drawings, Specification và other documents provided by the Employer or the Engineer shall not, without the consent of the Engineer, be used or communicated lớn a third các buổi party by the Contractor. Upon issue of the Defects Liability Certificate, the Contractor shall return to the Engineer all Drawings, Specification và other documents provided under the Contract .
The Contractor shall supply the Engineer four copies of all Drawings, Specification và other documents submitted by the Contractor & approved by the Engineer in accordance with Clause 7, together with a reproducible copy of any material which cannot be reproduced to lớn an equal standard by photocopying. In addition the Contractor shall supply such further copies of such Drawings. Specification & other documents as the Engineer may request in writing for the use of the Employer, who shall pay the cost thereof.
One Copy of Drawings khổng lồ be kept on Site
6.2One copy of the Drawings, provided to lớn or supplied by the Contractor as aforesaid, shall be kept by the Contractor on the Site and the same shall at all reasonable times be available for inspection & use by the Engineer and by any other person authorised by the Engineering in writing.
Disruption of Progress
6.3 The Contractor shall give sầu notice khổng lồ the Engineer, with a copy lớn the Employer, whenever planning or execution of the Works is likely to be delayed or disrupted unless any further drawing or instruction is issued by the Engineer within a reasonable time. The notice shall include details of the drawing or instruction required và of why and by when it is required & of any delay or disruption likely to lớn be suffered if it is late.
Delay và Cost of Delay of Drawings
6.4Void.
Failure by Contractor to Submit Drawings
6.5 If the failure or inability of the Engineer khổng lồ issue any drawings or instructions is caused in whole or in part by the failure of the Contractor to lớn submit Drawings.
Specification or other documents which he is required to lớn submit under the Contract, the Engineer shall take such failure by the Contractor inkhổng lồ tài khoản when making his determination pursuant lớn :
(a) any extension of time to lớn which the Contractor is entitled under Clause 44, and
(b) the amount of such costs, which shall be added khổng lồ the Contract Price,
& shall notify the Contractor accordingly, with a copy to the Employer.
Supplementary Drawings and Instructions
7.1 The Engineer shall have sầu authority to lớn issue to the Contractor, from time to time, such supplementary Drawings and instructions as shall be necessary for the purpose of the proper và adequate execution and completion of the Works và the remedying of any defects therein. The Contractor shall carry out and be bound by the same.
Permanent Works Designed by Contractor
7.2 Where the Contract expressly provides that part of the Permanent Works shall be designed by the Contractor, he shall submit khổng lồ the Engineer, for approval:
(a) such drawings, specifications, calculations and other information as shall be necessary to lớn satisfy the Engineer as lớn the suitability & adequacy of that kiến thiết, and
(b) operation và maintenance manuals together with drawings of the Permanent Works as completed, in sufficient detail lớn enable the Employer to lớn operate, maintain, dismantle, reassemble and adjust the Permanent Works incorporating that kiến thiết. The Works shall not be considered lớn be completed for the purposes of taking over in accordance with Clause 48 until such operation và maintenance manuals, together with drawings on completion, have been submitted to và approval by the Engineer.
Responsibility Unaffected by Approval
7.3 Approval by the Engineer, in accordance with Sub-Clause 7.2, shall not relieve sầu the Contractor of any of his responsibilities under the Contract.
GENERAL OBLIGATIONS
Contractor’s General Responsibilities
8.1 The Contractor shall, with due care and diligence, design (to the extent provided for by the Contract), exeđáng yêu & complete the Works và remedy any defects therein in accordance with the provisions of the Contract. The Contractor shall provide all superintendence, labour, materials, Plant, Contractor’s Equipment và all other things, whether of a temporary or permanent nature, required in và for such kiến thiết, execution, completion và remedying of any defects, so far as necessity for providing the same is specified in or is reasonably khổng lồ be inferred from the Contract.
The Contractor shall give sầu prompt notice to lớn Engineer, with a copy to lớn the Employer of any error, omission, fault or other defect in the thiết kế of or Specification for the Works which he discovers when reviewing the Contract or executing the Works.
Site Operations và Methods of Construction
8.2 The Contractor shall take full responsibility for the adequacy, stability & safety of all Site operations và methods of construction. Provided that the Contractor shall not be responsible (except as stated hereunder or as may be otherwise agreed) for the design or specification of Permanent Works, or for the kiến thiết or specification of any Temporary Works not prepared by the Contractor. Where the Contract expressly provides that part of the Permanent Works shall be designed by the Contractor, he shall be fully responsible for that part of such Works, notwithstanding any approval by the Engineer.
Contract Agreement
9.1 The contractor shall, if called upon so khổng lồ vì, enter into lớn and exexinh đẹp the Contract Agreement, khổng lồ be prepared và completed at the cost of the Employer, in the khung annexed to these Conditions with such modification as may be necessary.
Performance Security
10.1 If the Contract requires the Contractor lớn obtain security for this proper performance of the Contract, he shall obtain & provide lớn the Employer such security within 28 days after the receipt of the Letter of Acceptance, in the sum stated in the Appendix lớn Tender. When providing such security lớn the Employer, the Contractor shall notify the Engineer of so doing. Such security shall be in the size annexed to lớn these Conditions or in such other khung as may be agreed between the Employer & the Contractor. The institution providing such security shall be subject to the approval of the Employer. The cost of complying with the requirements of this Clause shall be borne by the Contractor, unless the Contract otherwise provides
Any amount deducted from the performance security shall be immediately reimbursed by the Contractor lớn the guaranteeing ngân hàng in order to maintain its full value throughout its validity period.
Period of Validity of Performance Security
10.2 The performance security shall be valid until the Contractor has executed & completed the Works and remedied any defects therein in accordance with the Contract. No clayên ổn shall be made against such security after the issue of the Defects Liability Certificate in accordance with Sub-Clause 62.1 and such security shall be returned to lớn the Contractor with in 14 days of the issue of the said Defects Liability Certificate.
Claims under Performance Security
10.3 Prior lớn making a clayên ổn under the performance security the Employer shall, in every case, notify the Contractor stating the nature of the mặc định in respect of which the clalặng is to be made.
Inspection of Site
11.1 The Employer shall have sầu made available khổng lồ the Contractor, before the submission by the Contractor of the Tender, such data on hydrological và sub-surface conditions as have sầu been obtained by or on behalf of the Employer from investigations undertaken relevant to lớn the Works but the Contractor shall be responsible for his own interpretation thereof.
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The Contractor shall be deem to lớn have inspected & examined the Site and its surroundings & information available in connection therewith and khổng lồ have satisfied himself (so far as is practicable, having regard to considerations of cost và time) before submitting his Tender, as to:
(a) The size & nature thereof, including the sub-surface conditions,
(b) The hydrological và climatic conditions,
(c) The extent & nature of work & materials necessary for the execution & completion of the Works & remedying of any defects therein, and
(d) The means of access khổng lồ the Site và the accommodation he may require,
và, in general, shall be deemed khổng lồ have obtained all necessary information subject as above sầu mentioned, as to lớn risks, contingencies and all other circumstances which may influence or affect his Tender.
The Contractor shall be deemed to have based his Tender on the data made available by the Employer and on his own inspection & examination, all as aforementioned.
Sufficiency of Tender
12.1 The Contractor shall be deemed to have satisfied himself as to lớn the correctness và sufficiency of the Tender & of the rates & prices stated in the Bill of Quantities, all of which shall, except insofar as it is otherwise provided in the Contract, cover all his obligations under Contract (including those in respect of the supply of goods, materials, Plant or services or of contingencies for which there is a Provisional Sum) and all matter và things necessary for the proper execution and completion of the Works & the remedying of any defects therein.
Not Foreseeable Physical Obstructions or Conditions
12.2 Void
Work lớn be in Accordance with Contract
13.1 Unless it is legally or physically impossible, the Contractor shall exexinh tươi và complete the Works & remedy any defects therein in strict accordance with the Contract lớn the satisfaction of the Engineer. The Contractor shall comply with and adhere strictly to lớn the Engineer’s instructions on any matter, whether mentioned in the Contract or not, touching or concerning the Works. The Contractor shall take instructions only from the Engineer (or his delegate).
Programme to lớn be Submitted
14.1 The Contractor shall, within trăng tròn days after the Date of the Letter of Acceptance, submit to lớn the Engineer for his consent a programme, in such form & detail as the Engineer shall reasonably prescribe, for the execution of the Works. The Contractor shall, when-ever required by the Engineer, also provide in writing for his information a general description of the arrangements & methods which the Contractor proposes khổng lồ adopt for the execution of the Works.
Revised Programme
14.2 If at any time it should appear khổng lồ the Engineer that the actual progress of the Works does not consize to lớn the programme khổng lồ which consent have been given under Sub-Clause 14.1, the Contractor shall produce, at the request of the Engineer, a revised programme showing the modifications lớn such programme necessary to ensure completion of the Work within the Time for Completion.
Cash Flow Estimate to lớn be Submitted
14.3 The Contractor shall, within 20 days after the date of the Letter of Acceptance, provide lớn the Engineer for his information a detailed cash flow estimate, in quarter periods, of all payments lớn which the Contractor will be entitled under the Contract & the Contractor shall subsequently supply serviced cash flow estimates at quarterly intervals, if required to lớn bởi vì so by the Engineer.
Contractor not Relieved of Duties or Responsibilities
14.4 The submission to và consent by the Engineer of such programmes or the provision of such general descriptions or cash flow estimates shall not relieve sầu the Contractor of any of his duties or responsibilities under the Contract.
Contractor’s Superintendence
15.1 The Contractor shall provide all necessary superintendence during the execution of the Works và as long thereafter as the Engineer may consider necessary for the proper fulfilling of the Contractor’s obligations under the Contract. The Contractor, or a competent và authorised representative sầu approved of by the Engineer, which approval may at any time be withdrawn, shall give sầu his whole time to the superintendence of the Works. Such authorised representative sầu shall receive sầu, on behalf of the Contractor, instructions from the Engineer.
If approval of the representative sầu is withdrawn by the Engineer, the Contractor shall as soon as is practicable, having regard lớn the requirement of replacing him as hereinafter mentioned, after receiving notice of such withdrawal, remove sầu the representative from the Works & shall not thereafter employ him again on the Works in any capathành phố và shall replace him by another representative sầu approved by the Engineer.
Language Ability of Contractor’s Representative
15.2 If the Contractor’s authorized representative sầu is not, in the opinion of the Engineer, fluent in the English language, the Contractor shall have available on site at all times a competent interpreter khổng lồ ensure the proper transmission of instructions & information.
Contractor’s Employees
16.1 The Contractor shall provide on the Site in connection with the execution và completion of the Works & remedying of any defects therein:
(a) only such technical assistants as are skilled và experienced in their respective sầu callings & such foremen and leading hands as are competent to give sầu proper superintendence of the Works, and
(b) such skilled, semi-skilled và unskilled labour as is necessary for the proper & timely fulfilling of the Contractor’s obligations under the Contract.
Engineer at Liberty to lớn Object
16.2 The Engineer shall be at liberty khổng lồ object to lớn & require the Contractor lớn remove forthwith from the Works any person provided by the Contractor who, in the opinion of the Engineer, misconducts himself, or is incompetent or negligent in the proper performance of his duties, or whose presence on Site is otherwise considered by the Engineer to lớn be undesirable, and such person shall not be again allowed upon the Works without the consent of the Engineer. Any person so removed from the Works shall be replaced as soon as possible.
Language Ability of Superintending Staff
16.3 A reasonable proportion of the Contractor’s superintending staff shall have a working knowledge of English và Vietnamese language or the Contractor shall have available on site at all times a sufficient number of competent interpreter to ensure the proper transmission of instructions and information.
Setting-Out
17.1 The Contractor shall be responsible for:
(a) the accurate setting-out of the Works in relation khổng lồ original points, line & levels of reference given by the Engineer in writing,
(b) the correctness, subject as above sầu mentioned, of the position, levels, dimensions & alignment of all parts of the Works, and
(c) the provision of all necessary instruments, appliances & labour in connection with the foregoing responsibilities.
If, at any time during the execution of the Works, any error appears in the position, levels, dimensions or alignment of any part of the Works, the Contractor, on being required to vị so by the Engineer, shall, at his own cost, rectify such error khổng lồ the satisfaction of the Engineer.
The checking of any setting-out or of any line or cấp độ by the Engineer shall not in any way relieve the Contractor of his responsibility for the accuracy thereof and the Contractor shall carefully protect & preserve sầu all bench-marks, sight-rails, pegs & other things used in setting-out the Works.
Boreholes & Exploratory Excavation
18.1 If, at any time during the execution of the Works, the Engineer requires the Contractor to lớn make boreholes or to carry out exploratory excavation, such requirement shall be subject of an instruction in accordance with Clause 51, unless an thành phầm or a Provisional Sum in respect of such works is included in the Bill of Quantities.
Safety, Security & Protection of the Environment
19.1 The Contractor shall, thought the execution and completion of the Works và remedying of any defects therein:
(a) have sầu full regard for the safety of all persons entitled lớn be upon the Site và keep the Site (so far as the same is under his control) và the Works (so far as the same are not completed or occupied by the Employer) in an orderly state appropriate lớn the avoidance of danger khổng lồ such persons.
(b) provide and maintain at his own cost all lights, guards, fencing, warning signs và watching, when and where necessary or required by the Engineer or by any duly constituted authority, for the protection of the Works or for the Safety and convenience of the public or others, and
(c) take all reasonable steps khổng lồ protect the environment on and off the Site & to lớn avoid damage or nuisance khổng lồ persons or to lớn property of the public or others resulting from pollution, noise or other causes arising as a consequence of his methods of operation
Employer’s Responsibilities
19.2 If under Clause 31 the Employer shall carry out work on the Site with his own workmen he shall, in respect of such work:
(a) have sầu full regard khổng lồ the safety of all persons entitled to lớn be upon the Site, and
(b) keep the Site in an orderly state appropriate khổng lồ the avoidance of danger lớn such persons.
If under Clause 31 the Employer shall employ other contractors on the Site he shall require them lớn have sầu the same regard for safety & avoidance of danger.
Care of Work
đôi mươi.1 The Contractor shall take full responsibility for the care of the Works and materials and Plant for incorporation therein from the Commencement Date until the date of issue of the Taking-Over Certificate for the whole of the Works, when the responsibility for the said care shall pass to the Employer. Provided that:
(a) if the Engineer issues a Taking-Over Certificate for any Section or part of the Permanent Works, the Contractor shall cease to lớn be liable for the care of that section or part from the date of issue of the Taking-Over Certificate, when the responsibility for the care of that Section or part shall pass khổng lồ the Employer, and
(b) The Contractor shall take full responsibility for the care of any outstanding Works & materials và Plant for incorporation therein which he undertakes to finish during the Defects Liability Period until such outstanding Works have been completed pursuant lớn Clause 49.
Responsibility lớn Rectify Loss or Damage
trăng tròn.2 If any loss or damage happens khổng lồ the Works, or any part of thereof, or materials or Plant of incorporation therein, during the period for which the Contractor is responsible for the care thereof, from any cause whatsoever, other than the risks defined in Sub-Clause đôi mươi.4, the Contractor shall, at his own cost, rectify such loss or damage so that the Permanent Works consize in every respect with the provisions of the Contract khổng lồ the satisfaction of the Engineer. The Contractor shall also be liable for any loss or damage to lớn the Works occasioned by hyên in the course of any operations carried out by hyên ổn for the purpose of complying with his obligations under Clause 49 và 50.
Loss or Damage Due to Employer’s Risks
đôi mươi.3 Void
Employer’s Risks
20.4 Void
Insurance of Works & Contractor’s Equipment
21.1 The Contractor shall, without limiting his or the Employer’s obligations & responsibilities under Clause trăng tròn, insure:
(a) the Works, together with materials và Plant for incorporation therein, khổng lồ the full replacement cost (the term “cost” in this context shall include profit)
(b) the Contractor’s Equipment and other things brought onto lớn the Site by the Contractor, for a sum sufficient lớn provide for their replacement at the Site.
Scope of Cover
21.2 The issuance in paragraphs (a) & (b) of Sub-Clause 21.1 shall be in the joint names of the Contractor & the Employer and shall cover:
(a) the Employer & the Contractor against all loss or damage from whatsoever cause arising, other than as provided in Sub-Clause 21.4, from the start of work of the Site until the date of issue the relevant Taking -Over Certificate in respect of the Works or any Section or part thereof as the case may be, and
(b) the Contractor for his liability:
(i) during the Defects Liability Period for loss or damage arising from a cause occurring prior to the commencement of the Defects Liability Period, and
(ii) for loss or damage occasioned by the Contractor in the course of any operations carried out by hyên for the purpose of complying with his obligations under Clauses 49 & 50.
Responsibility for Amounts not Recovered
21.3 Any amounts not insured or not recovered from the insurers shall be borne by the Employer or the Contractor in accordance with their responsibilities under Clause 20.
Exclusions
21.4 There shall be no obligation for the insurances in Sub-Clause 21.1 to lớn include loss or damage caused by:
(a) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,
(b) rebellion, revolution, insurrection, or military or usurped power, or civil war,
(c) ionising radiations, or contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active sầu toxic explosive or other hazardous properties or any explosive nuclear assembly or nuclear component thereof, or
(d) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.
Damage to Persons & Property
22.1 The Contractor shall, except if & so far as the Contract provides otherwise, indemnify the Employer against all losses và claims in respect of:
(a) death of or injury to lớn any person, or
(b) loss of damage to lớn any property (other than the Works),
which may arise out of or in consequence of the execution and completion of the Works and the remedying of any defects therein, and against all claims, proceedings, damages, costs, charges và expenses whatsoever in respect thereof or in relation therekhổng lồ, subject lớn the exceptions defined in Sub-Clause 22.2.
Exceptions
22.2 The “exceptions “ referred khổng lồ in the Sub-Clause 22.1 are:
(a) the permanent use or occupation of lvà by the Works, or any part thereof
(b) the right of the Employer lớn exexinh đẹp the Works, or any part thereof, on, over, under, in or through any land,
(c) damage to property which is the unavoidable result of the execution & completion of the Works, or the remedying of any defects therein, in accordance with the Contract, and
(d) death of or injury khổng lồ persons or loss of or damage khổng lồ property resulting from any act or neglect of the Employer, his agents, servants or other contractors, not being employed by the Contractor, or in respect of any claims, proceedings, damages, cost, charges & expenses in respect thereof or in relation thereto or, where the injury or damage was contributed khổng lồ by the Contractor, his servants or agents, such part of the said injury or damage as may be just và equitable having regard khổng lồ the extent of the responsibility of the Employer, his servants or agents or other contractors for the injury or damage.
Indemnity by Employer
22.3 The Employer shall indemnify the Contractor against all claims, proceedings, damages, costs, charges & expenses in respect of the matters referred to lớn in the exceptions defined in Sub-Clause 22.2.
Third Party Insurance (including Employer’s Property)
23.1 The Contractor shall, without limiting his or Employer’s obligations and responsibilities under Clause 22, insure, in the joint names of the Contractor & the Employer, against liabilities for death of or injuries to any person (other than as provided in Clause 24) or loss of or damage to any property (other than the Works) arising out of the performance of the Contract, other than the exceptions defined in paragraphs (a), (b), & (c) of Sub-Clause 22.2.
Minimum Amount of Insurance
23.2 Such insurance shall be for at least the amount stated in the Appendix khổng lồ Tender.
Cross Liabilities
23.3 The insurance policy shall include a cross liability clause such that the insurance shall apply lớn the Contractor và khổng lồ the Employer as separate insureds.
Accident or Injury to Workmen
24.1 The Employer shall not be liable for or in respect of any damages or compensation payable khổng lồ any workman or other person in the employment of the Contractor or any Subcontractor, other than death or injury resulting from any act or mặc định of the Employer, his agents or servants. The Contractor shall indemnify & keep indemnified the Employer against all such damages and compensation, other than those for which the Employer is liable as aforesaid, and against all claims, proceedings, damages, costs, charges, & expenses whatsoever in respect thereof or in relation thereto lớn.
Insurance Against Accident to lớn Workmen
24.2 The Contractor shall insure against such liability and shall continue such insurance during the whole of the time that any persons are employed by hyên on the Works. Provided that, in respect of any persons employed by any Subcontractor, the Contractor’s obligations to lớn insure as aforesaid under this Sub-Clause shall be satisfied if the Subcontractor shall have sầu insure against the liability in respect of such persons in such manner that the Employer is indemnified under the policy, but the Contractor shall require such Subcontractor to lớn produce to lớn the Employer, when required, such policy of insurance & the receipt for the payment of the current premium.
Evidence & Terms of Insurances
25.1 The Contractor shall provide evidence to the Employer prior to lớn the start of work at the Site that the insurances required under the Contract have sầu been effected and shall, within 84 days of the Commencement Date, provide the insurance policies to the Employer, the Contractor shall notify the Engineer of so doing. Such insurance policies shall be consistent with the general terms agreed prior lớn the issue of the Letter of Acceptance. The Contractor shall effect all insurances for which he is responsible with insurers and in terms approved by the Employer.
Adequacy of Insurances
25.2 The Contractor shall notify the insurers of changes in the nature, extent or programme for the execution of the Works và ensure the adequacy of the insurances at all times in accordance with the terms of the Contract và shall, when required, produce lớn the Employer the insurance policies in force và the receipts for payment of the current premiums.
Remedy on Contractor’s Failure to lớn Insure
25.3 If the Contractor fails to effect and keep in force any of the insurances required under the Contract, or fails khổng lồ provide the policies khổng lồ the Employer within the period required by Sub-Clause 25.1, then & in any such case the Employer may effect and keep in force any such insurances and pay any premium as may be necessary for that purpose and from time to time deduct the amount so paid from any monies due or khổng lồ become due khổng lồ the Contractor, or recover the same as a debt due from the Contractor.
Compliance with Policy Conditions
25.4 In the event that the Contractor or the Employer fails to comply with conditions imposed by the insurance policies effected pursuant to the Contract, each shall indemnify the other against all losses and claims arising from such failure.
Compliance with Statutes, Regulations
26.1 The Contractor shall conkhung in all respects, including by the giving of all notices and the paying of all fees, with the provisions of:
(a) any National or State Statute, Ordinance, or other Law, or any regulation, or bye-law of any local or other duly constituted authority in relation lớn the execution và completion of the Works & the remedying of any defects therein, and
(b) the rules và regulations of all public bodies & companies whose property or rights are affected or may be affected in any way by the Works,
& the Contractor shall keep the Employer indemnified against all penalties & liability of every kind for the breach of any such provisions. Provided always that the Employer shall be responsible for obtaining any planning, zoning or other similar permission required for the Works to proceed và shall indemnify the Contractor in accordance with Sub-Clause 22.3.
Fossils
27.1 Void
Patent Rights
28.1 The Contractor shall save harmless & indemnify the Employer from và against all claims and proceeding for or on tài khoản of infringement of any patent rights, design trademark or name or other protected rights in respect of any Contractor’s Equipment, materials or Plant used for or in connection with or for incorporation in the Works và from & against all damages, costs, charges và expenses whatsoever in respect thereof or in relation therekhổng lồ, except where such infringement results from compliance with the design or Specification provided by the Engineer
Royalties
28.2 Except where otherwise stated, the Contractor shall pay all tonnage & other royalties, rent & other payments or compensation, if any, for getting stone, s&, gravel, clay or other materials required for the Works.
Interference with Traffic và Adjoining Properties
29.1 All operations necessary for the execution and completion of the Works & the remedying of any defects therein shall, so far as compliance with the requirements of the Contract permits, be carried on so as not lớn interfere unnecessarily or improperly with:
(a) the convenience of the public, or
(b) the access lớn, use and occupation of public or private roads and footpaths lớn or of properties whether in the possession of the Employer or any other person.
The Contractor shall same harmless và indemnify the Employer in respect of all claims, proceedings, damages, costs, charges & expenses whatsoever arising out of, or in relation khổng lồ, any such matters in so far as the Contractor is responsible therefore.
AVoidance of Damage khổng lồ Roads
30.1 The Contractor shall use every reasonable means lớn prsự kiện any of the roads or bridges communicating with or on the routes to lớn the Site from being damaged or injured by any traffic of the Contractor or any of his Subcontractors &, in particular, shall select routes, choose and use vehicles and restrict and distribute loads so that any such extraordinary traffic as will inevitably arise from the moving of materials, Plant, Contractor’s Equipment or Temporary Works from and to the Site shall be limited, as far as reasonably possible, & so that no unnecessary damage or injury may be occasioned to lớn such roads and bridges.
Transport of Contractor’s Equipment or Temporary Works
30.2 Save insofar as the Contract otherwise provides, the Contractor shall be responsible for & shall pay the cost of strengthening any bridges or altering or improving any road communicating with or on the routes lớn the Site to facilitate the movement of the Contractor’s Equipment or Temporary Works & the Contractor shall indemnify & keep indemnified the Employer against all claims for damage lớn any such road or bridge caused by such movement, including such claims as may be may directly against the Employer, and shall negotiate & pay all claims arising solely out of such damage.
Transport of Materials or Plant
30.3 If, notwithstanding Sub-Clause 30.1 any damage occurs to any bridge or road communicating with or on the routes to the Site arising from the transport of materials or Plant, the Contractor shall notify the Engineer with a copy to lớn the Employer, as soon as he becomes aware of such damage or as soon as he receives any clalặng from the authority entitled to make such clayên ổn. Where under any law or regulation the haulier of such materials or Plant is required khổng lồ indemnify the road authority against damage the Employer shall not be liable for any costs, charges or expenses in respect thereof or in relation thereto. In other cases the Employer shall negotiate the settlement of và pay all sums due in respect of such claim & shall indemnify the Contractor in respect thereof and in respect of all claims, proceedings, damages, costs, charges và expenses in relation thereto. Provided that if và so far as any such clayên or part thereof is, in the opinion of the Engineer, due to any failure on the part of the Contractor khổng lồ observe & perkhung his obligations under Sub-Clause 30.1, then the amount, determined by the Engineer after due consultation with the Employer & the Contractor, lớn be due to such failure shall be recoverable from the Contractor by the Employer and may be deducted by the Employer from any monies due or to become due to the Contractor & the Engineer shall notify the Contractor accordingly, with a copy to lớn the Employer. Provided also that the Employer shall notify the Contractor whenever a settlement is khổng lồ be negotiated &, where any amount may be due from the Contractor, the Employer shall consult with the Contractor before such settlement is agreed.
Waterborne Traffic
30.4 Where the nature of the Works is such as to lớn require the use by the Contractor of waterborne transport the foregoing provision of this Clause shall be construed as though “road” include a lochồng, dochồng, sea wall or other structure related to lớn a waterway and “vehicle” included craft, và shall have effect accordingly.
Opportunities for Other Contractor
31.1 The Contractor shall, in accordance with the requirements of the Engineer, afford all reasonable opportunities for carrying out their work to:
(a) any other contractors employed by the Employer & their workmen,
(b) the workmen of the Employer, and
(c) the workmen of any duly constituted authorities who may be employed in the execution on or near the Site of any work not included in the Contract or of any contract which the Employer may enter inkhổng lồ in connection with or ancillary to lớn the Works.
Facilities for Other Contractors
31.2 If, however, pursuant lớn Sub-Clause 31.1 the Contractor shall, on the written request of the Engineer:
(a) make available to lớn any such other contractor, or to the Employer or any such authority, any roads or ways for the maintenance of which the Contractor is responsible,
(b) permit the use, by any such, of Temporary Works or Contractor’s Equipment on the Site, or
(c) provide any other service of whatsoever nature for any such,
the Engineer shall determine an addition to lớn the Contract Price in accordance with Clause 52 và shall notify the Contractor accordingly, with a copy to the Employer.
Contractor to lớn Keep Site Clear
32.1 During the execution of the Works the Contractor shall keep the Site reasonably miễn phí from all unnecessary obstruction & shall store or dispose of any Contractor’s Equipment và surplus materials và clear away & remove from the Site any wreckage, rubbish or Temporary Works no longer required.
Clearance of Site on Completion
33.1 Upon the issue of any Taking-Over Certificate the Contractor shall clear away and remove from that part of the Site khổng lồ which such Taking-Over Certificate relates all Contractor’s Equipment, surplus material, rubbish và Temporary Works of every kind, and leave such part of the Site & Works clean và in a workmanlượt thích condition to the satisfaction of the Engineer. Provided that the Contractor shall be entitled lớn retain on the Site, until the end of the Defects Liability Period, such materials, Contractor’s Equipment and Temporary Works as are required by hyên for the purpose of fulfilling his obligations during the Defects Liability Period.
LABOUR
Engagement of Staff and Labour
34.1 Void.
Compliance with Labour Law
34.2 Void.
Returns of Labour and Contractor’s Equipment
35.1 Void.
MATERIALS, PLANT AND WORKMANSHIP
Quality of Materials, Plant & Workmanship
36.1 All materials, Plant & workmanship shall be:
(a) of the respective sầu kinds described in the Contract và in accordance with the Engineer’s instructions, and
(b) subjected from time khổng lồ time to such tests as the Engineer may required at the place of manufacture, fabrication or preparation, or on the Site or at such other place or places as may be specified in the Contract, or at all or any such places.
The Contractor shall provide such assistance, labour, electricity, fuels, stores, apparatus & instruments as are normally required for examining, measuring and testing any materials or Plant and shall supply samples of materials, before incorporation in the Works, for testing as may be selected và required by the Engineer.
Cost of Samples
36.2 All samples shall be supplied by the Contractor at his own cost if the supply thereof is clearly intended by or provided for in the Contract.
Cost of Tests
36.3 The cost of making any chạy thử shall be borne by the Contractor if such demo is:
(a) clearly intended by or provided for in the Contract, or
(b) particularised in the Contract (in cases only of a demo under load or of a chạy thử lớn ascertain whether the thiết kế of any finished or partially finished work is appropriate for the purposes which it was intended to fulfil) in sufficient detail khổng lồ enable the Contractor lớn price or allow for the same in his Tender.
Cost of Tests not Provided for
36.4 Void.
Engineer’s Determination where Tests not Provide for
36.5 Void.
Inspection of Operations
37.1 The Engineer, & any person authorised by hyên ổn, shall at all reasonable times have access to lớn the Site and lớn all workshops and place where the materials or Plant are being manufactured, fabricated or prepared for the Works and the Contractor shall afford every facility for and every assistance in obtaining the right lớn such access.
Inspection & Testing
37.2 The Engineer shall be entitled, during manufacture, fabrication or preparation to lớn inspect và test the materials và Plant khổng lồ be supplied under the Contract. If materials or Plant are being manufactured, fabricated or prepared in workshops or places other than those of the Contractor, the Contractor shall obtain permission for the Engineer lớn carry out such inspection & testing in those workshops or places. Such inspection or testing shall not release the Contractor from any obligation under the Contract.
Dates for Inspection and Testing
37.3 The Contractor shall agree with the Engineer on the time & place for the inspection or testing of any materials or Plant as provided in the Contract. The Engineer shall give the Contractor not less than 24 hours notice of his intention lớn carry out the inspection or to lớn attend the tests. If the Engineer, or his duly authorised representative, does not attend on the date agreed, the Contractor may, unless otherwise instructed by the Engineer, proceed with the tests, which shall be deemed khổng lồ have been made in the presence of the Engineer. The Contractor shall forthwith forward to the Engineer duly certified copies of the test readings. If the Engineer has not attended the tests, he shall accept the said reading as accurate.
Rejection
37.4 If, at the time & place agreed accordance with Sub-Clause 37.3, the materials or Plant are not ready for inspection or testing or if, as a result of the inspection or testing referred to lớn in this Clause, the Engineer determines that the materials or Plant are defective or otherwise not in accordance with the Contract, he may reject the materials or Plant and shall notify the Contractor thereof immediately. The notice shall state the Engineer’s objections with reasons. The Contractor shall then promptly make good the defect or ensure that rejected materials or Plant comply with the Contract. If the Engineer so requests, the thử nghiệm of rejected materials or Plant shall be made or repeated under the same terms và conditions. All costs incurred by the Employer by the repetition of the tests shall, after due consultation with the Employer and the Contractor, be determine by the Engineer và shall be recoverable from the Contractor by the Employer và may be deducted from any monies due or lớn become due khổng lồ the Contractor & the Engineer shall notify the Contractor accordingly, with a copy lớn the Employer.
Independent Inspection
37.5 The Engineer may delegate inspection and testing of materials or Plant khổng lồ an independent inspector. Any such delegation shall be effected in accordance with Sub-Clause 2.4 và for this purpose such independent inspector shall be considered as an assistant of the Engineer. Notice of such appointment (not being less than 14 days) shall be given by the Engineer to lớn the Contractor.
Examination of Work before Covering up
38.1 No part of the Works shall be covered up or put out of the view without the approval of the Engineer & the Contractor shall afford full opportunity for the Engineer lớn examine and measure any such part of the Works which is about to be covered up or put out of view and khổng lồ examine foundations before any part of the Works is placed thereon. The Contractor shall give sầu notice lớn the Engineer whenever any such part of the Works or foundations is or are ready or about khổng lồ be ready for examination & the Engineer shall, without unreasonable delay, unless he considers it unnecessary & advises the Contractor accordingly, attend for the purpose of examining và measuring such part of the Works or of examining such foundations.
Uncovering & Making Openings
38.2 The Contractor shall uncover any part of the Works or make openings in or through the same as the Engineer may from time lớn time instruct & shall reinstate và make good such part. If any such part has been covered up or put out of view after compliance with the requirement of Sub-Clause 38.1 & is found to be executed in accordance with the Contract, the Engineer shall, after due consultation with the Employer & the Contractor, determine the amount of the Contractor’s costs in respect of such of uncovering, making openings in or though, reinstating & making good the same, which shall be added to lớn the Contract Price, and shall notify the Contractor accordingly, with a copy khổng lồ the Employer. In any other case all cost shall be borne by the Contractor.
Removal of Improper Work, Materials or Plant
39.1 The Engineer shall have authority to issue instructions from time to lớn time, for:
(a) the removal from the Site, within such time or times as may be specified in the instruction, of any materials or Plant which, in opinion of the Engineer, are not in accordance with the Contract,
(b) the substitution on of proper và suitable materials or Plant, and
(c) the removal & proper re-execution, notwithstanding any previous chạy thử thereof or interim payment therefor, of any work which, in respect of
(i) materials, Plant or workmanship, or
(ii) thiết kế by the Contractor or for which he is responsible,
is not, in the opinion of the Engineer, in accordance with the Contract.
Default of Contractor in Compliance
39.2 In case of mặc định on the part of the Contractor in carrying out such instruction within the time specified therein or, if none, within a reasonable time, the Employer shall be entitled to lớn employ and pay other person lớn carry out the same and all cost consequent thereon or incidental therelớn shall, after due consultation with the Employer & the Contractor, be determined by the Engineer & shall be recoverable from the Contractor by the Employer, & may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to lớn the Employer.
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SUSPENSION
Suspension of Work
40.1 The Contractor shall, on the instructions of the Engineer, suspover the progress of the Works or any part thereof for such time & in such manner as the Engineer may consider necessary và shall, during such suspension, properly protect and secure the Works or such part thereof so far as is necessary in the opinion of the Engineer.
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