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Agreement Terminal LPG- CLEAN DRAFT.doc

This document is a 44-page contract between PT._____________ (the Owner) and Consortium [Consortium Name] (the Contractor) for an LPG Terminal project in Indonesia. Key details include: - The Contractor will be responsible for engineering, procurement, construction, installation, testing, commissioning and rectification of works for the LPG Terminal project on a turn-key basis. - The contract outlines the scope of work for both the Owner and Contractor, timelines for commencement and completion, payment terms, bonds, insurance requirements, definitions of key terms, and procedures for changes, suspension, and termination of the contract. - Appendices provide further details on the scope

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Contract _________ Page 1 of 44 Owner Contractor CONTRACT FOR LPG Terminal ________ Project FOR ENGINEERING, PROCUREMENT AND CONSTRUCTION (EPC/TURN-KEY) BETWEEN PT. ______________________ AND ______________________ CONTRACT No.: _______________________ __ ____ 20_,_, _____________, INDONESIA TABLE OF CONTENTS
Contract _________ Page 2 of 44 Owner Contractor PART I CONTRACT AND INTERPRETATION Article 1. Definitions Article 2. Aim of the Contract Article 3. Non-Waiver Article 4. Severability Article 5. Amendment Article 6. Governing Law and Language Article 7. Arbitration Article 8. Laws and Regulations Article 9. Notices and Communications Article 10. Effective Date PART II SUBJECT MATTER OF CONTRACT Article 11. The Contractor's Scope of Supply Article 12. The Owner's Scope of Supply Article 13. Time for Commencement and Completion PART III CONTRACT PRICE AND PAYMENT Article 14. Contract Price Article 15. Payment Of Contract Price Article 16. Invoicing Article 17. Bonds Article 18. Taxes and Duties PART IV WORK EXECUTION Article 19. The Contractor's and the Owner's Representatives Article 20. Packing, Marking and Shipping Article 21. Progress Article 22. Testing Article 23. Inspection Article 24. Health, Safety, Security and Environment
Contract _________ Page 3 of 44 Owner Contractor Article 25. Standards and Codes Article 26. Cooperation with Others Article 27. Responsibility for Work and Property Article 28. Liability for Accidents and Damage Article 29. Training Article 30. Cleaning Up Article 31. Security Guards and Lighting Article 32. Mechanical Completion Article 33. Pre-commissioning and Commissioning Article 34. Acceptance Article 35. Confidentiality PART V. GUARANTEES AND LIABILITIES Article 36. Guarantees and Liquidated Damages Article 37. Warranties Article 38. Patent Indemnity Article 39. Liability of The Parties PART VI. RISK DISTRIBUTION Article 40. Transfer of the Ownership Article 41. Care of Work Article 42. Insurance Article 43. Force Majeure PART VII. CHANGE IN CONTRACT AGREEMENT Article 44. Assignment and Subcontracts Article 45. Variation Order Article 46. Suspension Article 47. Termination APPENDIX “A” SCOPE OF WORK, MASTER SCHEDULE AND BATTERY LIMIT
Contract _________ Page 4 of 44 Owner Contractor APPENDIX “B” TECHNICAL CLARIFICATION APPENDIX “C” HEALTH, SAFETY, SECURITY AND ENVIRONMENT APPENDIX “D” TRAINING
Contract _________ Page 5 of 44 Owner Contractor This CONTRACT FOR LPG TERMINAL ............... PROJECT, FOR ENGINEERING, PROCUREMENT AND CONSTRUCTION (EPC/TURN-KEY) NO. ________ is made and entered into in Jakarta on the [DATE] (“Contract”), by and between: PT. ______________________, a limited liability company incorporated under the laws of the Republic of Indonesia, having its principal address at ....................................................., which article of association have been amended in accordance with the Indonesian Law No. 40 year 2007 regarding the Limited Liability Company based on deed No. ________ dated ............... made before Notary ..............., approved by the Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of the Republic of Indonesia No. ............... dated ..............., Supplement No. ..............., and the latest article of association based on deed No. ............... dated ............... made before Notary ..............., approved by Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of Republic of Indnoesia No. ............... dated ..............., Supplement No. ..............., in this matter represented by Reno Pratama Junizwan in his capacity as the President Director, therefore acting for and on behalf of PT. ______________________ (the “Owner”); and Consortium [Consortium Name] a consortium of companies established by PT. ______________________ Heavy Industry, a limited liability company incorporated under the laws of the Republic of Indonesia, having its principal address at ...................................., which article of association have been amended in accordance with the Indonesian Law No. 40 year 2007 regarding the Limited Liability Company based on deed No. ........ dated ........................ made before Notary ......................, SH, approved by the Minister of Law and Human Rights pursuant to Decree No. _______________9 dated ..............., announced in the State Gazzette of the Republic of Indonesia No. 2 dated ..............., Supplement No. __________, and the latest article of association based on deed No. ..... dated ............... made before Notary ..............., SH, approved by Minister of Law and Human Rights pursuant to Decree No. ______________. Tahun ........ dated ........................, announced in the State Gazzette of Republic of Indonesia No. ....... dated ....................., Supplement No. __________, PT. [Consortium member], a limited liability company incorporated under the laws of the Republic of Indonesia, having its principal address at ..............., which article of association have been amended in accordance with the Indonesian Law No. 40 year 2007 regarding the Limited Liability Company based on deed No. ............... dated ............... made before Notary ..............., approved by the Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of the Republic of Indonesia No. ............... dated ..............., Supplement No. ..............., and the latest article of association based on deed No. ............... dated ............... made before Notary ..............., approved by Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of Republic of Indnoesia No. ............... dated ..............., Supplement No. ..............., in this matter represented by ........................ in his capacity as the [...............] of Consortium, therefore acting for and on behalf of the Consortium [Consortium Name] (the “Contractor”). The foregoing may individually be called the “Party” and collectively the “Parties”.
Contract _________ Page 6 of 44 Owner Contractor WITNESSETH: WHEREAS, the Owner is desirous of engaging a construction company responsible for engineering, detailed design, fabrication drawings, supply of materials, construction, installation, testing, commissioning and rectification of works in accordance with this Contract at Terminal LPG ..............., .................., Indonesia; WHEREAS, the Contractor is an international E.P.C (Engineering, Procurement and Construction) with numerous successful experiences in environmental and industrial plant projects [Note: Need to be confirmed and adjusted if the contractor is changed] and desires to participate in the Terminal LPG ..............., ..............., Indonesia project; WHEREAS, the Owner has appointed the Contractor by Letter of Award No. ___________ dated ...................., and the Contractor have accepted the appointment and therefore the Parties are desirous to implement this Contract. NOW, THEREFORE, in consideration of the premises and the undertaking of the Parties herein contained, the Parties hereto agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In the Contract as hereinafter defined, the following words and expressions shall have the meaning hereby assigned to them except where the context otherwise requires: (i) "Acceptance" shall mean the acceptance of the Plant in accordance with Article 34. (ii) "Article" without a reference to another contract means the Article according to this Contract. (iii) “Battery Limit” shall mean the splitting up of the responsibilities between the Owner (outside of the battery limits) and the Contractor (inside of the battery limits) as provided in the Appendix “A”. (iv) "Commissioning" shall mean the operation of the Plant following Pre- commissioning of the Plant to test that the Plant reach to Performance
Contract _________ Page 7 of 44 Owner Contractor Guarantee Figures as stipulated in Appendix “A”. (v) “Construction” shall mean performing of all and every civil works, mechanical works, electrical works, instrumentation works, erection, the Commissioning and relevant services as defined in the Contract to be done by the Contractor. (vi) "Construction Equipment" shall mean all facilities, equipment, machinery, tools, apparatus, appliances or things of every kind required in/for the Construction of the Plant to be provided by the Contractor, but does not include machineries, special tools, spare parts intended to form or forming part of the Plant, but as necessary with the Equipment Operation Eligibility Letter (Surat Kelayakan Operasi Peralatan) from Indonesian competent authority. (vii) "Contract" shall mean this Contract and all documents listed and attached herein. (viii) "Contract Price" shall mean the sum named in the Contract subject to such additions thereto or deduction there from as mentioned in Article 14 of this Contract. (ix) "Contractor" shall mean the Consortium of [Consortium Name] who shall be liable towards the Owner for the good performance of the Contractor’s obligations hereunder, and the Contractor’s authorized representatives, successors, and permitted assigns. (x) “Contractor’s Representative” shall mean any person nominated by the Contractor and informed to the Owner in the manner provided in Article 19 hereof to perform the duties delegated by the Contractor. (xi) "Day(s)" shall mean a calendar day. (xii) "Drawings" shall mean any drawing and any modifications of such drawings to be approved in writing by the Owner and such other drawings as may from time to time to be furnished or approved in writing by the Owner. (xiii) "Effective Date" shall mean the date that this Contract enters into full force and effect upon fulfillment of all the conditions stated in Article 10 hereof. (xiv) “Engineering” shall mean all activities related to basic design, detailed design, providing technical documents, project management, inspection, testing, monitoring, reporting, scheduling, programming, controlling.
Contract _________ Page 8 of 44 Owner Contractor (xv) “FIDIC” shall mean Federation Internationale des Ingenieurs-Consells (International Federation of Consulting Engineers). (xvi) “Force Majeure" shall have the meaning as defined in Article 43. (xvii) “Liquidated Damages” shall have the meaning as the Contractor’s payments of damages to the Owner for the default of his different responsibilities as per Article 36. (xviii) “Liquified Petroleum Gas” or “LPG” shall mean mixture of ethane, propane, butane and pentane plus in liquid form and pressurized. (xix) “LPG Terminal” shall mean reception facilities, storage and distribution of LPG and other supporting facilities at Site. (xx) "Materials" shall mean both Off-Shore and On-Shore materials. (xxi) "Mechanical Completion" means that the Plant has been completed mechanically and structurally as provided in Article 32. (xxii) “MIGAS” shall mean Directorate General of Oil and Gas, Ministry of Energy and Mineral Resources of Republic Indonesia. (xxiii) “Mill Certificate” shall mean documentation from a testing facility that usually shows the chemical makeup and physical strength/properties of materials required to meet certain ASME (American Society of Mechanical Engineers) and ASTM (American Society for Testing and Materials) American Society for Testing and Materials. (xxiv) "Month(s)" shall mean Gregorian calendar month. (xxv) "Off-Shore Materials" shall mean any and all equipment, machinery, special tools for maintenance, apparatus, materials, articles and things of all kinds to be procured from Japan, Europe, North America and/or Korea (outside Indonesia) and supplied by the Contractor for incorporation into the Plant. (xxvi) "On-Shore Materials" shall mean any and all equipment, machinery, apparatus, materials, articles and things of all kinds to be procured inside Indonesia and supplied by the Contractor under the Contract, but does not include Construction Equipment. (xxvii) "Owner" shall mean PT. ______________________ who is named as such in this Contract and includes the legal successors or permitted assigns of
Contract _________ Page 9 of 44 Owner Contractor the Owner. (xxviii) "Owner’s Representative" shall mean any person appointed by the Owner in the manner provided in Article 19 hereof to perform the duties delegated by the Owner. (xxix) "Party" shall mean individually, the Owner or the Contractor. (xxx) “Parties” shall mean the Owner and the Contractor collectively. (xxxi) “Performance Acceptance Certificate or “PAC” shall mean a certificate to be issued under the Contract by the Owner at the successful completion of the Commissioning of the Plant. (xxxii) "Performance Bond" shall mean the bank guarantee from a state owned bank in Indonesia acceptable to the Owner by the Contractor according to Article 17 of this Contract for securing the good performance of his obligation. (xxxiii) “Performance Guarantee Figures” shall mean the technical performance guaranteed figures stipulated in Appendix “A”. (xxxiv) "Plant" shall mean the LPG Terminal capable of storing 10,000 (ten thousand) ton of LPG including jetty, sub-sea pipe, loading arm, spherical tank to be constructed and performed on the Site. (xxxv) “Pre-commissioning” shall mean the functional tests of the equipment, i.e. the running of single or a series of machines and equipment with electricity, nitrogen, water, air, product and other process media under operation temperature and/or pressure as far as possible or necessary. (xxxvi) "Project Schedule" shall mean the time schedule setting forth the expected commencement dates and/or completion dates of certain activities required for engineering, procurement, construction. (xxxvii) "Site" shall mean the location at which Work shall be performed under the Contract. (xxxviii) “SKPP” shall mean Certificate of Eligibility Use of Equipment (Sertifikat Kelayakan Penggunaan Peralatan) issued by MIGAS. (xxxix) “SKPI” shall mean Certificate of Eligibility Use of Installation (Sertifikat Kelayakan Penggunaan Instalasi) issued by MIGAS.
Contract _________ Page 10 of 44 Owner Contractor (xl) "Subcontractor" shall mean any supplier, manufacturer, vendor, construction firm and service company to whom execution of any part of the Work, including preparation of any design or supply of any materials, is sub- contracted directly or indirectly by the Contractor, and includes its legal successors or permitted assigns. (xli) "Supply" shall mean the supply of all the Materials, all associated engineering works and services to be undertaken by the Contractor in accordance with the provision of the Contract for the completion of the Plant. (xlii) “Variation Order” shall mean any variation, alteration, addition, omission, modification and/or amendment to the scope of Works caused by a change order as per Article 45. (xliii) “Vendor” means a vendor providing the Supply or a part thereof for the Contractor. (xliv) “Warranty Bond” shall mean the bank guarantee from reputable bank acceptable to the Owner by the Contractor according to Article 17 of this Contract for securing the Plant’s performance within the Warranty Period. (xlv) “Warranty Period” shall mean the period of 12 (twelve) Months from the issuance date of the PAC or 1 (one) month later after the Plant is ready for Commissioning (whichever comes earlier) which the Contractor is responsible for defects with respect to the Plant or any part(s) thereof as provided in Article 37 hereof. (xlvi) “Work” shall mean all of the Contractor’s obligations under the Contract in respect of the construction of a complete and operational Plant as specified in the Contract, including supply of engineering, procurement, construction, training, Pre-commissioning of the Plant at the Site and the fulfillment of all obligations with regard to the Commissioning as specified in Article 33. (xlvii) “Working Days” shall mean Monday to Saturday except Indonesian public holiday(s), formal working day in calendar calculation. (xlviii) “Writing” shall mean any manuscript typewritten or printed statement duly signed by the authorized representatives. 1.2 INTERPRETATION a. Unless the context otherwise requires, references herein to the plural include the singular and references to the singular include the plural.
Contract _________ Page 11 of 44 Owner Contractor b. All references to Articles are to articles in or to this Contract unless otherwise specified herein. c. Unless the context otherwise requires, the words "herein", "hereof” and "hereunder" and words of similar import when used in this Contract shall refer to this Contract as a whole and not to any particular provision of this Contract. d. References in this Contract to any statute, law, decree, regulation, or other legal requirement shall be construed as a reference to such statute, law, decree, regulation or other legal requirement as re-enacted, re-designated, amended or extended from time to time, except as provided otherwise in this Contract. e. References to any document, instrument or agreement shall mean such document, instrument or agreement as the same may be amended from time to time in accordance with the terms and conditions thereof. f. The table of contents and the headings of the several Articles and Schedules and/or Appendixes of this Contract are intended for convenience only and shall not in any way affect the meaning or construction of any provision therein. g. Reference to the words "include" or "including" shall be deemed to be followed by the words "without limitation" or "but not limited to", whether or not they are followed by such phrases or words of similar import. 2. AIM OF THE CONTRACT The object of this Contract is to construct LPG terminal at [..............., ............... in Indonesia] (Site) with a storage capacity of .......... (...............) ton and its complementary unit as described and scheduled on Appendix “A”, which includes: (a) Performance of complete engineering affairs; (b) Supply of all equipment and materials, with the objective that when erected properly, will result in an efficiently operable and integrated Plant in accordance with the Contract; (c) Performance of complete construction, erection of the Plant, installation, testing, Commissioning and rectification of defect for the Works; (d) Pre-commissioning and Commissioning with the Owner’s operator in accordance with the Contract;
Contract _________ Page 12 of 44 Owner Contractor (e) Manual book of standard procedure in operation the LPG Terminal; (f) Training of the Owner’s qualified and skilled personnel in operation and maintenance of the plant both inside and outside of Republic of Indonesia. 3. NON-WAIVER 3.1 Failure by either Party to insist upon strict performance of any terms or conditions of this Contract, or failure or delay to exercise any rights or remedies provided herein or by law, or failure to properly notify the other Party in the event of breach, or the review or failure to review any designs shall not release any Party from any of the warranties or obligations of the Contract and shall not be deemed a waiver of any right of any Party to insist upon strict performance hereof or any of its rights or remedies as to any prior or subsequent default hereunder nor shall any termination or suspension under the Contract by any Party operate as a waiver of any of the terms hereof. 3.2 Any waiver of a Party's rights, powers or remedies under the Contract must be in writing, dated and signed by an authorized representative of the Party granting such waiver and must specify the right and the extent to which it is being waived. 4. SEVERABILITY 4.1 If any provision, in whole or in part of the Contract should be found legally, invalid, void or unenforceable or in ineffective, the validity of the other provisions of the Contract shall not be affected thereby. Both Parties shall endeavour to promptly replace the invalid or ineffective term or provision by valid and effective one which correspond best to the original economic and general intent of both Parties and what the Parties intended by such original provision to carry out their purposes. 4.2 Neither Party shall have any liability, obligation or responsibility which is not specifically referred to in the Contract. 5. AMENDMENT Any amendment/addendum of this Contract shall be in writing and signed by authorized representatives of the Parties. 6. GOVERNING LAW AND LANGUAGE
Contract _________ Page 13 of 44 Owner Contractor 6.1 This Contract and all amendments, modifications, alterations, or supplements hereto, and all disputes or claims concerning the validity, scope, meaning, construction, interpretation, or application of this Contract, any of its provisions, or the performance thereunder by either Party or both Parties shall be construed and interpreted in accordance with the laws of the Republic of Indonesia. 6.2 This Contract shall be executed in both Bahasa Indonesia and English language. In the event of inconsistency between the Indonesian and English language text, the English text shall prevail. 6.3 This Article shall survive after the termination of the Contract. 7. ARBITRATION 7.1 Any and all dispute or disagreements or claims or controversies between both Parties arising out of or in connection with the Contract or the performance thereof shall be amicably settled between both Parties hereto, failing which such dispute shall be settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, in Singapore (“ICC”) by 3 (three) Arbitrators, one of whom shall be appointed by the Owner, one by the Contractor and the third one jointly by the Owner and the Contractor. 7.2 If such an appointment by the respective Party has not been communicated as per the Contract within 30 (thirty) Day(s) after receipt of the request for such selection, or if the Parties have not reached an agreement within the said 30 (thirty) Day(s) period upon the appointment of the third Arbitrator, such appointment shall be made by the ICC in accordance with the said Rules. 7.3 The arbitration shall be conducted in accordance with the then prevailing Rules of Arbitration (“Rules”) of the ICC under said Rules. 7.4 The decision of the Arbitrators shall have a binding effect upon the Parties, and in reaching their decision the Arbitrators shall apply the law of the Contract. 7.5 The place of arbitration shall be in Singapore. The award rendered by the arbitration shall be final and binding upon both Parties, and resort to any Judicial Court or Tribunal is hereby waived except for the purpose of enforcement of such award. 7.6 The language of the arbitration shall be English. 7.7 This Article shall survive after the termination of the Contract. 8. LAWS AND REGULATIONS
Contract _________ Page 14 of 44 Owner Contractor 8.1 The Parties hereof shall respect FIDIC regulations. 8.2 The Contractor shall respect and observe local laws, regulations, decisions and order and shall obey orders and instructions issued by governmental and local authorities. 8.3 The Contractor shall also avoid any action, which can be prejudicial to security and public order. 8.4 The Contractor, its employees, Subcontractors, the Vendors and representatives shall at all times acquaint themselves in their individual behavior and conduct and comply with applicable laws, ordinances, statutes, rules or regulations. 8.5 The Contractor shall hold the Owner harmless from and against any and all liabilities, damages, claims, fines, penalties and expenses of whatever nature suffered by the Owner arising out of or resulting from the violation of such laws and regulations by the Contractor and its personnel. 8.6 The Contractor shall act as an independent the Contractor performing the Contract. The Contract does not create any agency, partnership, joint venture or other joint relationship between both Parties. Subject to its compliance with the Contract, the Contractor shall be solely responsible for the manner in which the Work is performed. 8.7 All employees, representatives, Subcontractors or Vendors engaged by the Contractor in performing the Contract shall not be deemed to be employees of the Owner, and nothing contained in the Contract or in any subcontract awarded by the Contractor shall be construed to create any contractual relationship between any such employee, representative, Subcontractor or Vendor and the Owner. 9. NOTICES AND COMMUNICATIONS 9.1 All notices required to be served by provisions of this Contract shall be in writing, either delivered personally or by fax/e-mail communications duly addressed and confirmed by letter. Notices to be served on both Parties hereto shall be served at or mailed to the addresses described below or at such other addresses as the recipient Party may from time to time designate by written notice to the other Party. 9.2 The receiving Party shall promptly confirm the receipt of any notice left at its office by putting its seal and signature on a copy presented for this purpose. 9.3 Each Party shall notify to the other the names and the signatures of the persons duly empowered for signing such notices.
Contract _________ Page 15 of 44 Owner Contractor 9.4 Any notice sent by airmail post and/or registered mail shall be deemed (in the absence of evidence of earlier receipt) to have been delivered 7 (seven) Day(s) after dispatch and in proving the fact of dispatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and conveyed to the postal authorities for transmission by air mail, and notices sent by e-mail or by facsimile transmission shall be deemed to have been received at the time of the dispatch thereof, answerback received (in the case of telex) or appropriate evidence of transmission received (in the case of facsimile). 9.5 Either Party to the Contract may change its nominated address by prior written notice to the other. 9.6 The Contractor shall transmit correspondences and invoices to the Owner at the following address: The Owner: PT. ______________________ .................................................... .................................................... Attention : .................................................... Tel No. : .................................................... e-mail. : .................................................... The Contractor: ______________________. 10. EFFECTIVE DATE This Contract shall become effective on the date of this Contract is signed. 11. THE CONTRACTOR’S SCOPE OF SUPPLY 11.1 General Obligation of the Contractor In consideration of the payments by the Owner to the Contractor for the completion of Works, the Contractor shall be responsible for execute, provide and supply the Engineering, technical documentation, equipment, consumables, Materials, spare
Contract _________ Page 16 of 44 Owner Contractor parts, the Construction, with due care and diligence within the time for completion in accordance with this Contract. The specific obligations are defined in the Appendix “A”. 11.2 Specific Obligation of the Contractor 11.2.1 The Contractor by entering into this Contract shall be deemed to have satisfied himself as to all conditions and circumstances affecting the Contract Price, as to the possibility of executing the Works as shown and described in the Contract, and as to the general circumstances at the Site of the Works, unless otherwise agreed by the Parties in this Contract. 11.2.2 The Site conditions are in accordance with the information supplied by the Owner. The Contractor shall be responsible for any misunderstanding or incorrect information however obtained from other parties, except for the information given by the Owner. 11.3 The Contractor shall provide utility necessary for the Construction. 11.4 Pre-commissioning and the Commissioning shall be carried out by the Contractor with the Owner’s support and attended by the representatives of MIGAS and Pertamina. 11.5 Each item of Materials supplied by the Contractor shall be entirely of proven design and unused (proved by Mill Certificate and/or Materials testing as required), of good quality workmanship and shall be free from defects in design, materials, manufacturing and workmanship suitable for the use intended. 11.6 All Materials supplied by the Contractor shall be delivered on the basis of delivery at place at Site as per INCOTERMS 2000. The payment of customs duty, Value Added Tax import, customs clearance and any other charges related with customs clearance shall be taken care of by the Owner at its cost. 11.7 The Contractor shall be responsible for all inland transportation of On-Shore Materials within Indonesia. 11.8 The Contractor shall provide drawings, operating and maintenance manuals for all equipment provided under the Contract. 11.9 The Contractor shall provide 4 (four) sets hardcopy of “As-Built” and 1 (one) set softcopy for the Work (one set reproducible for drawing) performed hereunder at the completion of the Work. 11.10 The Contractor shall provide the Owner, in accordance with coordination procedure of all plans, of all drawings, design specification, progress reports, the Contractor’s
Contract _________ Page 17 of 44 Owner Contractor test results and other data prepared by the Contractor, Vendors or the Subcontractors, if any, in connection with the Plant, the list of which shall be defined and agreed between both Parties. The Owner shall retain rights to drawings, technical requisitions, specifications and other project documents as instruments of service for this Plant. 11.11 The Contractor shall arrange its shipment in an expeditious and orderly manner taking into account the schedule of the erection of the Plant. The Owner shall provide full cooperation with the Contractor and Subcontractor(s) for the successful carry out of the erection and construction of the Plant. 11.12 The Contractor shall be responsible for the timely performance of all Works in accordance with the Project Schedule agreed between both Parties, unless for reasons beyond the control of the Contractor and/or not due to the negligence or willful misconduct of the Contractor. 11.13 The Contractor shall have the right at his own discretion to select Vendors and the Subcontractors and shall obtain the Owner’s written approval considering the vendor list. 11.14 The Contractor agrees that all services required in the performance of the Work (except those specifically furnished by the Owner under the Contract) shall be furnished and paid for by the Contractor at its expense and account. Unless otherwise stated in the Contract, such items of services shall include the Contractor’s site office, temporary electrical wiring or apparatus, temporary piping, sanitary, water for Works, valves, pumps and piping accessories, with connection from process Battery Limits as described in Appendix “A”, supply of first aid, medical services for its workers, on the project site sheds, huts, shelters, shops, and such other facilities that may be required during the term of the Contract. The Contractor shall, at the completion of the Work herein undertaken, remove all such temporary facilities and services, except such items which have specifically been agreed upon in writing between the Owner and the Contractor, leaving the premises in clean and orderly conditions. 11.15 The Contract Price herein agreed to be paid by the Owner to the Contractor shall be in compensation for the performance and completion of the Work, and not as per diem compensation for the number of Day(s) which both Parties may estimate as necessary for the completion of the Work. It is further agreed that the time or times specified herein shall not be construed to limit and restrict the obligation of the Contractor to such period, but the Contractor shall proceed with the Work during all such times as shall be necessary to perform and complete the Work, at no further expense to the Owner than as herein stated in Article 14 of the Contract, unless otherwise agreed by both Parties under the Article 45.
Contract _________ Page 18 of 44 Owner Contractor 11.16 The Contractor shall oblige Subcontractor to obtain all licenses, permits or authorizations which Subcontractor is required to obtain its own name in accordance with the applicable laws or regulations of Indonesia for the performance of Work under the Contract with the support and assistance of the Owner and the Owner shall acquire all permits, approvals and/or licenses from all local, state or national government authorities or public service undertakings which require the Owner to obtain in its name and which are necessary for the execution of the Works. 11.17 The Contractor shall be responsible for all costs and expenses incurred in connection with the import and export of Construction Equipment, if require. 11.18 Unless otherwise stated in the Contract, the Contractor shall be responsible to provide the followings at the Contractor’s cost: (a) Suitable and proper storage facilities at Site for Plant equipment; (b) Employment of the local personnel as per the qualification to be laid down by the Contractor before starting the related work and services of the Plant, in accordance with the prevailing local laws; (c) Provision of the necessary services and facilities for the Contractor’s supervision staffs in accordance with Appendix “A”. 12. THE OWNER’S SCOPE OF SUPPLY 12.1 The Owner shall assign sufficient space at the Site for the Contractor to effectively execute the Work. The Contractor shall confine its activities within such space or areas for the execution of the Work, it shall request the Owner for further assignment of space and areas at the Site and the Owner shall provide such additional space. 12.2 The Owner shall provide utility necessary for the Pre-commissioning and the Commissioning. 12.3 The Owner shall provide LPG, chemicals, water, electricity, and consumables necessary for Pre-commissioning and Commissioning according to conditions. 12.4 Unless otherwise stated in the Contract, The Owner shall be responsible to provide the followings at the Owner’s cost: (a) To provide the Contractor with all such information and instruction as required under the Contract, in order to enable the Contractor to execute and complete the Work;
Contract _________ Page 19 of 44 Owner Contractor (b) To obtain all necessary permits, licenses and authorizations to execute this Contract from Government and/or local authorities. In connection therewith, the Contractor will perform assistance work to obtain the above permits, licenses and authorizations as described in Appendix “A”. 13. TIME FOR COMMENCEMENT AND COMPLETION 13.1 Upon the signing of the Contract and the receipt by the Contractor of the notification from the Owner’s bank on the readiness of the irrevocable Stand By Letter of Credit (“SBLC”) to guarantee the fulfillment of payment obligation by the Owner under this Contract, the Contractor shall forthwith commence the engineering work. 13.2 Unless for reasons attributable to the Owner and/or the force majeure conditions, the Contractor shall complete the Works within the period of 20 (twenty) Months (plus 1 (one) month of grace period) commencing from the issuance date of the Performance Bond. 13.3 If for any reasons not attributable to the Contractor nor within the control of the Contractor the Project Schedule is interrupted or delayed or there are reasonable grounds for expecting delay, the Contractor shall promptly advise the Owner, and the Contractor and the Owner shall promptly meet to discuss remedial action and whether a change in the Project Schedule is necessary. 13.4 The Contractor’s document and Drawings to get the Owner’s review and approval, document(s) shall be returned to the Contractor within the 7 (seven) Day(s) after the Owner’s receipt of the Contractor’s document. If any, documents shall be deemed to be reviewed and/or approved. 14. CONTRACT PRICE The Contract Price to be paid by the Owner to the Contractor in consideration of the Contractor's performance for the Engineering and Supply and the Construction under the Contract shall be US$...................... (.................................................... United States Dollars) only. 15. PAYMENT OF CONTRACT PRICE 15.1 The payment of the Contract Price shall be made by the Owner to the Contractor with the following terms:
Contract _________ Page 20 of 44 Owner Contractor (a) The amount of 85% (eighty five percent) of the Contract Price shall be paid from the Owner to the Contractor with the following conditions: (i) the Work has achieved 85% (eighty five percent) progress as evidenced by the monthly progress report already signed by the Contractor and the Owner; (ii) any SKPP obtained at the time the 85% (eighty five percent) of the Work’s progress achieved; and (iii) all equipments required for the Plant have been delivered to the Site; (b) The amount of 15% (fifteen percent) of the Contract Price shall be paid from the Owner to the Contractor after the issuance of the SKPI. 15.2 Both Parties will specify and agree on the measurement of progress of the Work implementation in the Appendix ”A”. 15.3 During the implementation of the Work, the Contractor will request the approval of progress to the Owner in accordance with the Appendix “A”. 16. INVOICING 16.1 85% (85% (eighty five percent) of the Contract Price Invoice For the payment of the 85% (eighty five percent) of the Contract Price, the Contractor shall submit the following documents to the Owner: (a) 1 (one) original invoice and 3 (three) copies of the invoice; (b) 1 (one) set of original bill of lading and/or Airway bill; (c) 1 (one) original of packing lists; (d) 1 (one) original of a certificate of origin; (e) 1 (one) copy of erection all risks insurance certificate. 16.2 15% (fifteen percent) of the Contract Price invoice For the payment of the remaining 15% (fifteen percent) of the Contract Price, the Contractor shall submit the following documents to the Owner: (a) 1 (one) original invoice and 3 (three) copies of the invoice 17. BONDS
Contract _________ Page 21 of 44 Owner Contractor 17.1 The Contractor shall provide the bonds specified below in favor of the Owner issued by a state owned bank in Indonesia, in the amount, manner and form specified below. 17.2 Performance Bond Within 5 (five) Working Day(s) after the issuance date of the notification from the Owners Bank regarding the SBLC, the Contractor shall provide Performance Bond to the Owner in an amount of US$................. (.......................................... United States Dollars) only which is validfor 21 (twenty one) Months from the issuance date of the Performance Bond or will be expired at the issuance of the PAC. In the event that Project Schedule is extended due to reasons attributable to the Contractor, the validity of the Performance Bond shall be extended to the extended period as agreed by the Parties. The Performance Bond shall be returned and released to the Contractor within 5 (five) Working Day(s) upon the lapse of the abovementioned validity of the Performance Bond or the issuance date of the PAC. 17.3 Warranty Bond The Contractor shall provide Warranty Bond to the Owner in amount of US$................... (........................................... United States Dollars) only which is valid within the Warranty Period. 18. TAXES AND DUTIES 18.1 The Contract Price stipulated in Article 14 excludes all kinds of taxes, which the Owner may have to pay in Indonesia. 18.2 Any and all taxes or charges excluding Value Added Tax (Pajak Pertambahan Nilai) as may be levied in Indonesia with respect to the execution of the Work by the Contractor under the Contract shall be borne and paid by the Contractor. 18.3 Import Value Added Tax (Pajak Pertambahan Nilai), if any, to be imposed on any import of the Off-Shore Materials shall be borne and paid by the Owner. 19. THE CONTRACTOR’S AND THE OWNER’S REPRESENTATIVES 19.1 For purposes of coordinating the Work to be performed by the Contractor hereunder, the Contractor shall nominate its Contractor's Representative.
Contract _________ Page 22 of 44 Owner Contractor 19.2 Such Contractor’s Representative may also be nominated as project manager or a nomination of project manager shall be made simultaneously. 19.3 The Owner may by notice in Writing to the Contractor object to any representative or person(s) employed by the Contractor in the execution of the Works who shall in the reasonable opinion of the Owner misconduct himself or be incompetent or negligent, or commit a serious breach of Site regulations. The Owner shall substantiate the same whereupon the Contractor shall remove such person from the Site. 19.4 The Contractor’s Representative shall represent and act for the Contractor at all times during the currency of the Contract and shall give to the Owner all the Contractor’s notices, instructions, information and all other communications under the Contract. All notices, instructions, information and all other communications given by the Owner under the Contract shall be given to the Contractor’s Representative, except as herein otherwise provided. The Contractor shall not revoke the appointment of the Contractor’s Representative without the Owner's prior written consent, which shall not be unreasonably withheld. If the Owner consents is not given, the Contractor shall appoint some other person as the Contractor’s Representative, pursuant to the procedure set out in Article 19.3. 19.5 If any representative or person employed by the Contractor is removed in accordance with Article 19.3 above the Contractor shall promptly appoint a replacement according to provisions herein above clauses. 19.6 Upon approval of the Contractor's Representative, the Owner shall advise the Contractor of the Owner's representative. 20. PACKING, MARKING AND SHIPPING 20.1 The Contractor shall provide the Materials with adequate and seaworthy export packing suitable for long distance transportation and normal handling during transportation. The shipping mark of package and cases shall be as follows: - Contract Number: - Port of Loading - Port of Discharge - Shipper/Exporter - For Account & Risk of Messrs - Notify Party - Gross Weight
Contract _________ Page 23 of 44 Owner Contractor - Net Weight - Package/Case No. - Measurement: ________ mm x _________ mm x __________ mm The Contractor may add such other numbers, words, references, etc. as the Contractor may require. 20.2 Within 6 (six) Months after the Effective date, the Contractor shall submit to the Owner a preliminary shipping schedule indicating expected items, value, and time of shipment. 20.3 The Owner may give its comments to the Contractor within 1 (one) Month after receipt of such preliminary schedule. A definite shipping schedule shall be agreed between both Parties and submitted to the Owner based on such preliminary schedule and the Owner's comments not later than 2 (two) Months before the expected first major shipment. If any change shall become necessary for the shipping schedule, the Contractor shall notify the Owner the revised shipping schedule without delay. 20.4 The Contractor shall select qualified and reliable shipping companies or forwarding companies and advise the Owner not later than 3 (three) Months before any Materials are ready for shipment. The Contractor shall seek the Owner's agreement within 1 (one) Month upon submission of list of shipping companies or forwarding companies. 20.5 The Contractor shall in time secure the shipping space for the Materials and not less than 7 (seven) Working Days before shipment give the Owner preliminary shipping notice including vessel name and estimated time of departure and arrival together with 3 (three) sets of preliminary packing lists. 20.6 Within 3 (three) Working Days after shipment, the Contractor shall by facsimile give the Owner final shipping notice, including vessel name, time of departure and estimated time of arrival and volume. 20.7 The date of bill of lading of loading port shall be taken as the actual shipping date. 20.8 If any Material is missing and/or damaged during transportation, the Contractor shall supply such item as quickly as possible and if necessary and practicable by air freight, then the cost shall be returned to the Contactor by insurance, so that the Contract period will not be affected by such delay. 20.9 Any taxes and import duties imposed on such replacements, if any, shall be borne by the Contractor if the Owner has already paid such taxes or import duties for the
Contract _________ Page 24 of 44 Owner Contractor missing material or if the Owner has originally obtained exemption of such taxes or import duties for the missing material. 20.10 If the Contractor or any Vendor is required to obtain approval or permit from any governmental authority for exporting special equipment and material, the Contractor shall inform the Owner of such requirement upon the delivery of final shipping schedule. 20.11 If import of any of Materials is controlled by Indonesian Government, the Owner may request the Contractor to submit documents (e.g. certificate of analysis, specification, catalog and technical data) prepared by the manufacturer of such items but not later than 2 (two) Months prior to shipment. The Contractor shall use its best efforts to obtain such documents from the relevant manufacturer(s) and deliver them to the Owner as soon as practicable, however not later than 3 (three) weeks prior to the arrival of the shipment. In the case of radioactive products, the above documents shall be delivered to the Owner not later 2 (two) Months prior to the arrival of the shipment. 20.12 The Contractor shall undertake to ship Materials and/or any parts thereof under deck unless impractical due to oversize or overweight. In case of unavailability of space under deck for any particular shipment, both Parties shall consult with each other to agree on other appropriate arrangement. 20.13 Container shall be allowed to be shipped on deck. 20.14 Transhipment (changing of ship) shall not be allowed, if the transport is not made by containers. 20.15 The Contractor agrees that each shipment of the Materials under Contract shall include spare parts thereof. 21. PROGRESS The Contractor shall give the Owner full information in advance as to its plans for performing each part of its Work and its performance of the Work being done. If the Contractor’s actual progress is inadequate to meet the requirements of the Contract, the Owner may so notify the Contractor who shall thereupon take such steps as may be necessary to improve its progress. Progress report should be on monthly basis. 22. TESTING
Contract _________ Page 25 of 44 Owner Contractor 22.1 Unless otherwise provided in the Contract, testing of Materials and spare parts shall be performed by the Contractor at its expense and in accordance with the Contract requirements so as to facilitate sound and complete fulfillment of the Work. At the completion of the final ex-work quality inspection and testing, the Contractor shall issue the Quality Test Certificate for the relevant equipment. 22.2 The Owner at its cost may attend witness such tests upon written notice to the Contractor. The Contractor shall inform the Owner of schedule, if any, of testing of Materials. 23. INSPECTION 23.1 The Contractor shall request Vendors and/or Subcontractors to allow the Owner or its authorized representative to access their premises at all reasonable times for inspection and expediting purposes with respect to the condition and progress of manufacture, production or testing of the Materials. 23.2 The Contractor shall assist the Owner or its representative to obtain the permission and entry visas for visiting the shop of the Contractor and Vendors. 23.3 The Contractor shall provide sufficient, safe, and proper facilities at all times for such inspection and expediting of Materials, and shall furnish full information concerning all material entering into Materials and grant the Owner and the Owner's Representative free access at all reasonable times to the shops where Materials are manufactured, stored, or assembled. 23.4 All traveling and personal expenses incurred by the Owner or the Owner's Representative for visiting the shops as above shall be borne by the Owner. 23.5 At least 14 (fourteen) Day(s) before the Contractor starts testing the Materials or parts thereof in the Contractor's shops or in those of Vendor and/or Subcontractor, the Contractor shall inform the Owner in writing accordingly, indicating the item concerned, the location of the shop and the schedule of testing. 23.6 The Owner shall, at all reasonable times, be entitled to ascertain the state and progress of manufacture. Visits to the Contractor's manufacturing locations shall be during working hours. 23.7 The Contractor shall, during the visit of the Owner and/or the Owner's Representative, provide the Owner with all documents and data as are necessary to judge the state of the Materials and the progress thereof.
Contract _________ Page 26 of 44 Owner Contractor 23.8 During the inspection of items under manufacture, the visitor(s) shall be attended by the shop superintendent in charge or on deputy, who shall give the visitor(s) all requested information related to the manufacture of the Materials. 23.9 The Owner shall be entitled to visit, in addition to the shops, the offices, which are in charge of the work to be performed in connection with the Contract. 23.10 The Contractor shall be informed of a visit to the respective Vendors and/or Subcontractors in advance at least 7 Day(s) prior to the visit date. 23.11 It shall be the responsibility of the Contractor to inspect Materials prior to delivery. The making or failure to make by the Owner of any inspection of, or acceptance of Materials, shall in no way impair the Owner's right to reject non conforming Materials or release or discharge the Contractor from any of his obligations. 23.12 The Contractor shall, upon receipt of request from the Owner, provide the Owner with information relating to the manufacture, production or testing of Materials. 23.13 Based on the agreed inspection and test program, the Owner has the right to witness inspection activities during the Construction and co-sign on inspection reports. 24. HEALTH, SAFETY, SECURITY AND ENVIRONMENT The terms and conditions in accordance with Health, Safety, Security and Environment for the performance of Works by the Contractor shall be refer to Appendix “C”. 25. STANDARDS AND CODES Wherever references are made in the Contract to standards or codes in accordance with which Work is to be performed, the edition or revision of the standards or codes current on the Effective Date shall apply unless otherwise expressly stated. Lists of standards and codes shall be referred to Appendix “A”. 26. COOPERATION WITH OTHERS The Owner, the Contractor, and the Subcontractors may be working at the Site during the performance of the Contract and the Work or use of certain facilities may be interfered with as a result of such concurrent activities. The Owner and the Contractor shall mutually agree to re-schedule if necessary the order of performance of the Work in such a manner as will minimize interference with the
Contract _________ Page 27 of 44 Owner Contractor work of any other Party. The Owner shall use its best effort to minimize the interruption of the Work by the Subcontractors. 27. RESPONSIBILITY FOR WORK AND PROPERTY 27.1 Work in Progress, Materials, and Construction Equipment The Contractor shall be responsible for and shall bear any and all risk of loss or damage to work in progress, Work, Materials, Construction Equipment supplied and delivered by the Contractor to the Site until the date of issuance of SKPP and PAC. 27.2 Delivery, Unloading and Storage Responsibility for the performance of the Contract shall be as follows or otherwise expressly stated. (a) Receiving all Off-Shore Materials at the point of import and handling any formalities for customs clearance (by the Owner); (b) Maintaining complete and accurate records of all Materials and Construction Equipment received, stored and issued for use in the performance of the Contract by the Owner and the Contractor jointly; (c) Receiving and unloading at the Site by the Contractor; (d) Storing in a secure and proper storage of materials subject to degradation in weather tight enclosures (by the Contractor); (e) Delivering from storage to the Site all Materials and the Construction Equipment as required by the Contractor. 27.3 Property The Contractor shall plan and conduct its operations so as not to: (a) Enter upon lands in their natural state unless authorized by the Owner; (b) Damage, close or obstruct any utility installation, highway, road or other property unless/until permits therefore have been obtained; (c) Disrupt or otherwise interfere with the operation of any pipeline, telephone, electric transmission line, ditch or structure unless otherwise specifically authorized;
Contract _________ Page 28 of 44 Owner Contractor (d) Damage or destroy cultivated and planted areas, and vegetation such as trees, plants, shrubs, and grass on or adjacent to the premises unless, as determined by the Owner, do interfere with the performance of the Work through operation of equipment. The Contractor shall be entitled to compensate on its account due to the Contractor’s failure to protect all materials, equipment and environment as described herein. All costs in connection with any repairs or restoration necessary or required by reason of unauthorized obstruction, damage or use shall be borne by the Contractor. 28. LIABILITY FOR ACCIDENTS AND DAMAGE 28.1 Damage to persons and property before the issuance date of Performance Acceptance Certificate. The Contractor shall, indemnify the Owner in respect of death or injury to any person and of all damages to any property occurring from the performance of the work by the Contractor until the issuance of PAC and against all actions, suits, claims, demands, costs, charges and expenses arising in connection therewith that shall be occasioned attributable to the Contractor or by defective design (other than a design made, furnished or specified by the Owner and for which the Contractor has disclaimed responsibility in Writing within a reasonable time after the receipt of the Owner instructions), materials or workmanship. 28.2 Damage to persons and property during the Warranty Period. 28.2.1 The Owner shall be responsible and liable for any negligence. 28.2.2 If there shall occur any loss of or damage or injury to any property or person attributable to the Contractor, the Contractor shall be liable as follows: (a) In respect of loss of or damage to the said section or portion, the Contractor’s obligations shall be as defined in Article 28.1 of this Contract. (b) In respect of damage or injury to any other property or to any person and of any actions, claims, demands, costs, charges and expenses arising in connection therewith the Contractor shall be liable to the extent that such damage or injury was attributable to the Contractor by defective materials or workmanship used or while on the Site. 28.3 Claims for damage to person or property
Contract _________ Page 29 of 44 Owner Contractor In the event of any claim being made against the non-responsible Party arising out of the matters referred to in and in respect of which the responsible Party may be liable under this Article, the responsible Party shall be promptly notified thereof, and may at his own expense conduct all negotiations for the settlement of the same and any litigation that may arise there from. The non-responsible Party shall not, unless and until the responsible Party shall have failed to take over the conduct of the negotiations or litigation, make any admission which might be prejudicial thereto. The non-responsible Party shall, at the request of the responsible Party afford all available assistance for any such purpose and shall be repaid all reasonable costs incurred in so doing. 28.4 Accident or injury to workmen The responsible Party shall indemnify the non-responsible Party against all actions, suits, claims, demands, costs or expenses arising in connection with death or injuries (other than such as may be the responsibility of the non-responsible Party, his agents or servants) suffered by persons employed by the responsible Party or his Subcontractor, whether at law or under any statutes dealing with the question of the liability of employers for injuries suffered by employees. 29. TRAINING 29.1 The Parties agree that the Contractor will provide training program for the Owners employees as further detailed in Appendix D. 30. CLEANING UP 30.1 The Contractor shall keep the areas in which Work is being performed inclean and safe condition. Upon completion of any portion of its Work, the Contractor shall promptly remove from the Work area all its Construction Equipment, temporary structures except as specifically agreed and surplus materials not to be used at or near the same location during later stages of Work. Upon completion of the Work, the Owner shall at its expense satisfactorily dispose of all rubbish, scrap and waste material as per local regulation. 30.2 The Contractor shall return to the Owner’s warehouse or jobsite storage area all salvageable the Owner-supplied materials and shall restore the Site where appropriate to its original condition except where specifically agreed to the contrary. The Contractor shall leave the premises inclean and safe condition. 31. SECURITY GUARDS AND LIGHTING
Contract _________ Page 30 of 44 Owner Contractor The Contractor shall maintain at its own expense all lighting, fencing and security guards when and where necessary for the proper and safe execution and the protection of the Work until the date of Performance Acceptance Certificate. The Contractor shall, at its expense, provide artificial light sufficient to permit Work to be carried on efficiently, satisfactorily and safely, and to permit through inspection when any Work is performed at night or where daylight is obscured until the date same as above. During such time periods the access to the place of the Work shall also be clearly illuminated. 32. MECHANICAL COMPLETION 32.1 As soon as all the units have been completed mechanically and structurally excluding such minor items as finishing of insulation and painting, and other items not affecting the operation or safety of the unit, the Contractor shall arrange Pre- commissioning as soon as possible until the issuance of SKPP. 32.2 The erection of the Plant is completed if the provisions of the check list for Plant completion have been reached. Some minor amount of work, such as finishing the insulation or painting, removal of temporary erection facilities, or general clean up, still to be done by the Contractor or some deficiency not affecting the Plant operation require correction shall not be regarded as uncompleted erection. 32.3 Within 2 (two) Day(s) after the specified checks have been successfully performed, protocols of Mechanical Completion for the respective units, interconnecting piping and cables shall be signed by the representative of both Parties at the Site. 33. PRE-COMMISSIONING AND THE COMMISSIONING 33.1 As soon as all the units have been completed mechanically as stipulated in Article 32 of this Contract, the Contractor shall perform the Pre-commissioning as soon as possible. 33.2 As soon as the Plant or any units of the Plant thereof is substantially complete, it shall be inspected by the Owner and the Contractor before any tests are carried out. 33.3 When all the items of equipment and materials of the Plant are ready and have been completed pursuant to this Contract, the Parties shall review the procedures for the pre-agreed tests for the demonstration of the completion of Construction of the units of the Plant, to be undertaken in accordance with this Contract and detailed procedures therewith.
Contract _________ Page 31 of 44 Owner Contractor 33.4 After completion of Construction for a unit, Pre-commissioning for this unit can be started by unit. 33.5 During Pre-commissioning, detailed procedures of Commissioning such as instrument calibration, items of recording, sampling methods and analyzing methods which are necessary for Commissioning shall be submitted by the Contractor. 33.6 During Pre-commissioning and Commissioning, the Owner shall prepare the personnel for operation, maintenance and testing as well as all raw materials and utilities in the required quantity and quality. 33.7 Upon completion of the Pre-commissioning procedure, the Contractor will proceed with the Commissioning procedure and both Parties shall agree on the date of the Commissioning and the Contractor shall perform the Commissioning under the Owner’s support within 5 (five) Day(s) from the date of such agreement. 33.8 The Commissioning shall be carried out in accordance with the instruction of the Contractor’s technical personnel on the Site. 33.9 The results and the evaluations of each Commissioning shall be recorded in a protocol and signed by the representatives of both Parties within 2 (two) Day(s) after the completion of such Commissioning. In the event a Commissioning is not successfully carried out due to the Contractor’s fault, the Contractor shall make necessary modifications to the equipment and materials or design or the instruction of operation of the Plant as soon as possible. After making the modifications, the Commissioning shall be carried out again in accordance with Article 33. If it is necessary to have any of the above-mentioned modifications carried out at the Site, the Owner shall make its best endeavours to give its assistance when requested by the Contractor. However, the direct cost of performing modifications or corrections including but not limited to all labor and materials shall be borne by the Contractor. 33.10 Any equipment or materials destroyed or damaged due to the Contractor’s fault and which are within the scope of the Contractor’s Work shall be delivered by the the Contractor, if necessary and practical CIF (in accordance with Incoterms 2000) airport of Indonesia. The delivery shall be performed as quickly as possible. Should it be necessary to send back to the country of origin any equipment for repair or replacement, all transport cost and cost of repairing or replacement shall be borne by the Contractor. 33.11 The replaced or repaired equipment shall be delivered by the Contractor on its own costs including import duties, the cost for transportation to the Site, etc., (if any). 34. ACCEPTANCE
Contract _________ Page 32 of 44 Owner Contractor 34.1 If all the guarantee figures of the Plant are fulfilled in all Commissioning as specified in Article 33, Performance Acceptance Certificate of the Plant shall be signed in 4 (four) copies, 2 (two) copies for each Party, by the representatives of both Parties within 2 (two) Day(s) after the guarantee figures are fulfilled (“Performance Acceptance Certificate“). The Performance Acceptance Certificate of the Plant stipulated in this Article shall not release the Contractor from its liability for Materials during the Warranty Period. The Contractor shall submit to the Owner list of outstanding items to be performed by the Contractor under the Contract. Such list shall be subject to the Owner's approval. 34.2 If the guarantee figures are not fulfilled partly or completely during the Commissioning, both Parties shall jointly make investigations to find out the reason to clarify the responsibility and to settle it as follows: 34.2.1 If due to the Contractor’s fault, the guarantee figures are not fulfilled within 21 (twenty one) Months of working period pursuant to Article 13.2 of this Contract, the Owner shall agree to have an extension of the Commissioning period to make corrections and to have further Commissioning. Should the Commissioning still fail continously, the Parties agree that the Contractor proceed additional Commissioning and after the achievement of the guarantee figures, the Contractor shall pay to the Owner the liquidates damages in accordance with Article 36.2 of this Contract, and the Owner shall issue to the Contractor the Performance Acceptance Certificate. 34.2.2 If the non-fulfillment of the guarantee figures is due to the Owner’s fault (such as lack of LPG, utilities and of other items which are in the Owner’s responsibility according to the conditions of the Contract), the Commissioning periods as per Articles 33.7 and/or this Article shall be extended by the periods of delay due to the Owner’s fault up to a maximum of 6 (six) Months from the Mechanical Completion. During these periods of delay all the expense for the Contractor and an interest based on the interest rate applicable in PT Bank BNI (Persero), Tbk at the then applicable time, shall be for the Owner’s account. The number of the Contractor’s personnel shall be discussed and fixed by both Parties. 34.2.3. In case the Commissioning has not been completed within 27 (twenty seven) Months from start of the work by the Contractor for any reasons attributable to the Owner, the Plant shall be deemed to be accepted and the Owner shall issue to the Contractor the Taking-over Certificate of the Plant. The Warranty Period shall in no event valid beyond 6 (six) Months from the date of the Taking-over Certificate.
Contract _________ Page 33 of 44 Owner Contractor In the event the Plant shall be deemed to be accepted as mentioned above, the Owner shall pay to the Contractor the remaining 15% (fifteen percent) within 10 (ten) Working Day(s) from such acceptance. 35. CONFIDENTIALITY 35.1 Each Party shall take due measures to keep confidential the information communicated to it from the other Party including the Drawings, technical requisitions, specifications and other project documents provided by either Party during the performance of the Contract. 35.2 The obligation of each Party under this Article, however, shall not apply to that information which: (a) now or hereinafter enters the public domain through no fault of the other Party; (b) can be proved to have been in the possession of the other Party at the time of disclosure and which was not previously obtained, directly or indirectly, from such Party; or (c) otherwise lawfully becomes available to the other Party from a third party under no obligation of confidentiality. 35.3 This Article shall survive after the termination of the Contract. 36. GUARANTEES AND LIQUIDATED DAMAGES 36.1 The Contractor guarantees that the Plant shall possess the modern technology among the relevant plants of the Contractor at the date of the Contract, that the Materials are of high quality and that their type selection complies with the requirements of process technology, operation and long-term service. The Contractor shall supply the engineering drawings and other documents completely and correctly in order to carry out successfully the Commissioning as well as normal and safe operation and maintenance of the Plant. 36.2 If the Contractor fails to achieve the Performance Guarantee Figures within 21 (twenty one) Months of working period pursuant to Article 13.2 of this Contract due to Contractor’s faults, then the Contractor shall pay to the Owner the liquidated damages in the amount of 0.1% (zero point one percent) of the Contract Price for each Day(s) of delay starting from the first Day(s) of the 22nd (twenty second) Month. Such liquidated damages, in total, shall in no case exceed 5% (five percent) of the Contract Price.
Contract _________ Page 34 of 44 Owner Contractor 36.3 The Contractor guarantees that the Plant can reach the guarantee figures as stated in Appendix “A” – Quality, Quantity and Procedures for Commissioning provided that the Plant is operated under normal conditions by the Owner. The Contractor shall prove that the guaranteed figures can be reached in the Commissioning according to Article 33. In case of deviations from guaranteed figures due to the Contractor’s fault, the Contractor shall be responsible and bear all costs and expenses to achieve the guaranteed figures. 36.4 The payment of liquidated damages for performance guarantee shall constitute complete satisfaction of the Commissioning and any other claims or actions that may arise in connection with said guarantees, and the Commissioning will be considered by the Parties as having been satisfactorily completed in all respects. However, the liquidated damages under this clause 36, in total, shall in no case exceed 5% (five percent) of the Contract Price. The Owner is entitled to obtain the payment for the liquidated damages mentioned above from the call or withdrawal of the Performance Bond in the maximum amount of 5% of the Contract Price. 36.5 In case any defect of Works is found during erection, mechanical tests, Commissioning the defect shall be checked by both Parties and if such defect is due to the Contractor's fault, the Contractor shall correct, repair or replace the Work at its own expenses. If the Contractor is responsible for removing or correcting the defects, the Owner shall supply the Contractor, if requested by the Contractor, the necessary personnel, cranes, etc. for performing the removal of the defects. The cost thus incurred shall be borne by the Contractor. The removal of defects shall be performed as quickly as possible and the Contractor shall do its best to ensure that the progress of the Work is not adversely affected. 36.6. Each of the Parties hereby represents and warrants that each Party is duly organized and validly existing under the laws of the Republic of Indonesia and has the power and authority to enter into this Contract and to carry out and perform the terms and conditions of this Contract. 36.7. Each Party has taken any and all necessary actions and necessary approvals, authorizations and formalities required to be obtained in order to enable each Party to lawfully enter into and perform its obligations under this Contract and to ensure that such obligations expressed to be assumed by it hereunder are legal, valid, binding and enforceable and have been done, fulfilled or performed. 37. WARRANTIES
Contract _________ Page 35 of 44 Owner Contractor 37.1 The Contractor shall fully perform and complete the Work under the Contract in a good and workmanlike manner as defined in the Contract. 37.2 All Work performed and Materials installed by the Contractor are warranted to conform to the design, drawings, documents, plans, specifications, codes, regulations and standard industry practices as set forth in the Contract and shall be at least those which can reasonably be expected from an experienced leading the Contractor performing similar work under similar conditions, of sufficient size and capacity and of first class quality so as to fulfill in all respects all operating conditions specified in the Contract and free from any defect due to faulty design, defective materials and/or faulty workmanship. If any defect of the Work attributable to the Contractor is found at any time up to 12 (twelve) Months from the date of Performance Acceptance Certificate and the Contractor is notified of such defect, the Contractor shall, at its own expense and as promptly as possible, repair, replace or remedy such defect as may be necessary to permit the Work to conform to the applicable drawings, documents, plans, specifications, codes, regulation and standard industry practices. 37.3 The Warranty Period for the replaced or repaired parts for reasons attributable to the Contractor shall be further extended for that effect by 12 (twelve) Months from the date of such repair or replacement. However, this extended Warranty Period shall not in no case be longer than 24 (twenty four) Months after the date of Performance Acceptance Certificate. The amount of the Warranty Bond must be maintained through the extended Warranty Period pursuant to Article 17.3. 37.4 The Owner shall notify the Contractor in writing the nature of any defect, which occurs within the Warranty Period, however, such notification shall be made at the latest within 30 (thirty) Day(s) after expiration of the Warranty Period. 37.5 The Contractor, if the Owner is authorized by the Contractor, shall reimburse the Owner the cost pertaining to such repair and/or services. Customs clearance and transport within Indonesia in connection with defective or replaced equipment or materials shall be arranged by the Owner at cost of the Contractor, also any applicable taxes in Indonesia in connection therewith shall be paid by the Contractor. 37.6 Any and all costs and expenses incurred by the Contractor in making good and correcting any defect, except for defects attributable to the Owner, in accordance with this Article shall be borne by the Contractor including but not limited to the cost for repair and replacement of items of Materials, customs duties, taxes and port charge, transportation of materials from or to the Site, dismantling and removal from the Site and export of any defective item of Materials, construction, erection, testing and any cost or expense for modification or repetition of design, engineering, etc.
Contract _________ Page 36 of 44 Owner Contractor 37.7 In the event the Contractor fails to start to remedy any defect, except for defects attributable to the Owner, within 14 (fourteen) Day(s) after the receipt of the Owner’s written notice, describing defect in accordance with Article 37, the Owner shall be entitled to claim under the Warranty Bond to the extent of the cost of undertaking the necessary remedial service itself. Such notice shall identify the nature of and the date on which the Contractor was given notice of the defect, and shall include statements that (i) the Contractor has not remedied the defect(s), and (ii) the Owner desires to remedy such defect(s). 37.8 The defective parts shall be returned by the Owner to the Contractor at the request of the Contractor at the Contractor's cost. The request shall be made within 14 (fourteen) Day(s) after replacement or renewal, and the parts shall be returned as soon as possible after the request. 37.9 In case of willful misconduct or gross negligence by the Contractor, the provisions of Article 37 shall be the sole remedy available to the Owner under the Contract for rectification of defects in the Work. 37.10 The Contractor's response to defects or guarantee service calls under this Article shall be such that upon notification by the Owner that repair of defects or service work is required, the Contractor shall: (a) Respond immediately to faximile, telephone or e-mail notification. (b) Dispatch engineers or other personnel to Site within the shortest possible time, if requested by the Owner. 37.11 Under the warranties of Article 37, the Contractor shall not be responsible for the defects and/or damages due to i) improper operation or maintenance of the Plant by the Owner, ii) normal wear and tear, or iii) any design, specifications or other data designated, supplied or specified by or on behalf of the Owner. 38. PATENT INDEMNITY 38.1 The Contractor shall indemnify the Owner from and against any and all direct damages, claims, demands, losses, costs and expenses the Owner may suffer as a result of any infringement or alleged infringement of any patent, registered design, trademark, copyright other intellectual property right registered or otherwise existing at the signing date of the Contract by reasons of the use of the Supply and/or Materials, but the Owner shall not settle any claim or demand from a third party without taking procedures as per Article 38.2. 38.2 If any proceedings are brought forward or any claim is made against the Owner arising out of the matters referred to in Article 38.1 above, the Owner shall promptly
Contract _________ Page 37 of 44 Owner Contractor give the Contractor written notice thereof and the Contractor may at its own expense and in the Owner’s name conduct such proceedings or claim and any negotiations such as either make available the Owner the rights in question or at the Contractor’s discretion alter the Supply at the Contractor’s cost. 38.3 If the Contractor fails to notify the Owner within 15 (fifteen) Day(s) after receipt of such notice that it intends to conduct any such proceedings or claims, then the Owner shall be free to conduct the same on its own behalf. Unless the Contractor has so failed to notify the Contractor within 15 (fifteen) Day(s) period the Owner shall not make any admission which may be prejudicial to the defense of any such proceedings or claim. 38.4 The Owner shall, at the Contractor’s request, afford all available assistance to the Contractor in conducting such proceedings or claim, and the Owners shall be reimbursed by the Contractor for all reasonable expenses incurred in so doing. 39. LIABILITY OF THE PARTIES 39.1 The maximum aggregate liquidated damages of the Contractor to the Owner arising under the Contract in respect of liquidated damages under Articles 36.2 and 36.4 shall in no case exceed 5% (five percent) of the Contract Price. 39.2 Neither Party shall be liable to the other Party for any consequential damage or losses including loss of production or loss of profits. 40. TRANSFER OF THE OWNERSHIP The ownership of the Plant will be transfer upon the Parties sign the minutes of transfer of ownership. For the avoidance of doubt the signing of the minutes of transfer of ownership will be made at the same date with the issuance of the PAC. 41. CARE OF WORK 41.1 The Contractor shall be responsible for the care and custody of the Work and the Materials or any part thereof until the date of Performance Acceptance Certificate of the Plant pursuant to Article 34 hereof. 41.2 The Contractor shall also be responsible for any loss of or damage to the Work caused by the Contractor in the course of any work carried out pursuant to Article 37 hereof.
Contract _________ Page 38 of 44 Owner Contractor 42. INSURANCE 42.1 The insurance to be taken out and maintained by the Contractor with reputable insurance companies shall be as specified below. 1 (one) copy of the relevant policies shall be promptly passed to the Owner. The insurance should cover the value of Contract Price. 42.2 The Contractor shall maintain the insurance policies, described below, in full force and effect from the commencement of Work hereunder up to the date of Performance Acceptance Certificate of the Plant. As required by the Owner, the Owner will be named as beneficiary or co-beneficiary in respect of claims hereunder. 42.3 If the Contractor fails to take out and/or maintain in effect the insurance referred to above, the Owner may take out and maintain in effect such insurances and may deduct any amount due to the Contract under any premium which the Owner shall have paid to the insurance companies. 42.4 The Contractor shall promptly advise the Owner of any and all claims lodged under the insurance policies, and the status of any outstanding or unpaid claims in respect thereof. 42.5 The Contractor (or Subcontractors) shall maintain the following insurance policies with the Owner as a co-insured: (a) Erection All Risks Insurance (b) Third Party Liability Insurance (c) Employee social security (Jaminan Sosial Tenaga Kerja) for the employee of the Contractor only 43. FORCE MAJEURE 43.1 Neither Party shall be considered in default of performance of its obligation under the Contract to the extent that the performance of such obligation is delayed or prevented by force majeure. 43.2 Force majeure is herein defined to be acts of God, acts of war (declared or undeclared), acts of government, embargo, hostilities, riots, earthquake, flood, civil unrest, insurrection, strikes or lockouts, etc. which are beyond reasonable control of both Parties and unforeseeable as of the signing date of the Contract.
Contract _________ Page 39 of 44 Owner Contractor 43.3 Either Party shall give notice in writing to the other of the occurrence of Force Majeure as soon as possible after its occurrence including its estimated duration (if possible) and shall determine a mutually agreeable course of action. Neither the Owner nor the Contractor shall be subject to any liability whatsoever for any delay or loss caused by Force Majeure. 43.4 As soon as Force Majeure is terminated the respective Party shall give immediate written notice to the other Party. At that time the Parties shall mutually agree on the further course of action. 43.5 Defects or damages in Materials due to failure to perform in accordance with or breach of the Contract or negligent acts or omissions by the Contractor's Vendor or shipping company hired by the Contractor or other persons under the Contractor's responsibility or their representatives, shall not constitute force majeure. 43.6 Interruption of obligations under the Contract due to force majeure shall not be considered a waiver of either Party's such obligations. If an event of force majeure prevents either Party from carrying out its obligations under or in connection with the Contract, such Party shall promptly notify in writing the other Party. 43.7 Each Party, upon giving written notice as above, may suspend its obligation to the extent necessitated by the occurrence of force majeure, and relevant periods shall be extended commensurate with such suspension. Nothing hereby shall alter any obligation with respect to portions of Work not affected by such force majeure. 43.8 The occurrence of force majeure shall not entitle either Party to any additional compensation whatsoever unless otherwise agreed between both Parties. 43.9 If after 180 (one hundred eighty) Day(s) from the date of giving the aforesaid notice, the notifying Party shall still be so prevented for reasons of force majeure form performing its obligations under the Contract, both Parties shall consult with each other in good faith with a view to determining equitable action appropriate under such circumstances and also termination should be taken into reasonable consideration. 43.10 Notwithstanding the period specified under the preceding paragraph, it is hereby mutually agreed that at any time subsequent to the occurrence of force majeure, either Party may, upon its request, discuss amicably with the other Party in order to set the provisional arrangements to be adopted by both Parties for the purpose of minimizing or avoiding any losses, damages or expenses which the affected Party may incur in consequence of the suspension as provided hereunder. 43.11 The above mentioned Article 43.1 through 43.6 shall be in effect until the date of Performance Acceptance Certificate.
Contract _________ Page 40 of 44 Owner Contractor 44. ASSIGNMENTS AND SUBCONTRACTS 44.1 The Contractor shall not subcontract with any third party for the performance of all or any portion of the Work without the prior written approval of the Owner unless otherwise stated, provided however that such approval shall not unreasonably withheld by the Owner. Subcontracts must include provisions to secure all rights and remedies of the Owner provided under the Contract, and must impose upon the Subcontractor all of the general duties and obligations required to fulfill this Contract. 44.2 No assignment or subcontract approved would relieve the Contractor of its responsibilities under the Contract. 45. VARIATION ORDER 45.1 The Owner may, at any time, in writing, request the Contractor to make variation in the Work to be performed by the Contractor under the Contract. 45.2 In the event the Contractor deems it necessary for the execution of the Work or deems it appropriate taking into account of then prevailing circumstances, the Contractor may also submit to the Owner a variation proposal without receiving the Owner's request for a variation. 45.3 Upon receipt of the Owner's written request for a variation in Work, the Contractor shall prepare a variation proposal and furnish the same to the Owner within a reasonable period of time but normally within 14 (fourteen) Day(s) following receipt of such request. Each variation proposal shall be in writing and be accompanied with information including the effect upon the Contractor's guarantees, and/or upon any other undertakings by the Contractor hereunder. 45.4 In spite of the Owner's request for a variation as stipulated in Article 45.1, the Contractor shall not be obligated to effect such variation which may, in the written opinion of the Contractor to the Owner, have an adverse effect upon the Contractor's guarantees or which will not be technically feasible. 45.5 Within 14 (fourteen) Day(s) from receipt of a variation proposal as specified in Article 45.2, the Owner shall inform the Contractor in writing of whether the Owner desires to proceed with the relevant variation in Work. If the Contractor does not receive any written notice from the Owner within the said 14 (fourteen) Day(s), such request for a variation in Work shall be deemed to have been canceled by the Owner. In case of cancellation, the Contractor shall not be reimbursed for the cost
Contract _________ Page 41 of 44 Owner Contractor of making the proposal. The Contractor shall not be responsible to the Owner for any claims by the Owner arising from such cancellation. 45.6 If the Owner and the Contractor agree to effect on the Contract provisions based on all information contained in a variation proposal, the Owner shall notify or thereof by way of issuance of a written variation order (“Variation Order”) incorporating the variation in question and providing for any such necessary amendment to the Contract as agreed between the Owner and the Contractor resulting from the effect of such variation in every respect. The Contractor shall not be required to proceed with any variation in Work before its receipt of the Owner's written Variation Order. 45.7 If, during the execution of Work, the Contract Price and the Project Schedule are affected by the Owner's failure or delay in performing its obligations, or due to the Variation Order from the Owner, the Contract Price and the Project Schedule shall be reasonably adjusted by mutual agreement. 46. SUSPENSION 46.1 The Owner may for essential reason not deriving from the Contractor’s fault or breach of the Contract suspend the Contract for a total aggregate period of 45 (forty five) Day(s). 46.2 Within 14 (fourteen) Day(s) prior to each expected suspension, the Owner shall, if possible, inform the Contractor of the reason and period of the suspension and both Parties shall make a friendly mutual settlement during such 14 (fourteen) Day(s) regarding the additional cost for the Contractor, the Project Schedule and other effects of the suspension for the Contract. Should the total aggregated period of suspension for the Contract exceed 45 (forty five) Day(s), the Owner shall pay all additional costs and expenses to the Contractor and the Owner shall submit a Variation Order as per Article 45 and the time for completion shall be extended relevantly. 46.3 The Contractor may by notice to the Owner suspend performance of all or any of its obligations under the Contract in case that the Owner fails to pay any sum due under the Contract within 14 (fourteen) Working Day(s) from the due date of payment. 47. TERMINATION 47.1 Termination for the Contractor’s default
Contract _________ Page 42 of 44 Owner Contractor 47.1.1 Notwithstanding any other provisions of the Contract, the Contractor shall be considered by the Owner in default of its contractual obligation under the Contract if it: (a) Substantially fails to make delivery or substantially fails to perform Work within the time specified on Appendix “A”; (b) Substantially fails to perform in accordance with provisions of the Contract or so substantially fails to make progress as to endanger performance of the Contract in accordance with its terms; (c) 47.1.2 Upon the occurrence of any of the foregoing, the Owner may notify the Contractor in writing of the nature of the failure, and the Parties shall discuss this matter and shall agree on a new delivery or progress schedule. 47.1.3 If the Contractor still substantially fails to comply with such schedule, the Owner may terminate the whole or part of the Contract upon giving the Contractor 14 (fourteen) Day(s) prior written notice. 47.1.4 Upon such a termination by the Owner, the Contractor shall either immediately or upon such date as is specified in the notice of termination: (a) cease all further work; and (b) terminate all sub-contracts, except those to be assigned to the Owner pursuant to item (d); and (c) deliver to the Owner the parts of the Work executed by the Contractor up to the date of termination; and (d) to the extent legally possible assign to the Owner all right, title and benefit of the Contractor to the Work and in the Materials as at the date of termination, and, as may be required by the Contractor, in any sub-contracts concluded between the Contractor and the Owner deliver to the Owner all drawings, specifications and other documents prepared by the Contractor or its Subcontractors as at the date of termination in connection with the Works. (e) The Owner may enter upon the Site and may complete the Work employing any third party. The Owner may take over and use, with payment of rental fee to the Contractor, any Construction Equipment belong to the Contractor and which is on the Site. Upon completion of the Work or such earlier date as the Owner thinks appropriate, the Owner shall return to the Contractor such Construction Equipment.
Contract _________ Page 43 of 44 Owner Contractor 47.1.5 The Contractor shall be entitled to be paid the Contract Price attributable to the Work executed as at the date of termination. 47.2 Termination for the Owner’s default If the Owner fails to open the SBLC within 45 (forty five) Working Day(s) after the date of the notification from the Owner’s bank on the readiness of the SBLC, the Parties shall meet and discuss to proceed further step. If the Owner fails to open the SBLC within the agreed period, then the Contractor shall be entitled to terminate this Contract by a written notice to the Owner, and in such a case, this Contract shall be considered terminated and Contractor will have the rights to claim for losses, damages and expenses incurred by the Contractor and the Owner shall pay to the Contractor such losses, damages and expenses. 47.3 Either Party may terminate the Contract immediately and without incurring thereby any liability to the other, by merely serving a notice of termination on the other in any of the following events: (a) If the other Party is declared in court or notoriously becomes insolvent or bankrupt; (b) If a receiver is appointed to take possession of the business or assets of the other Party and his appointment is not revoked within 15 (fifteen) Day(s). 47.4 Termination of the Contract is without prejudice to any claim for any antecedent breach and to the right of the aggrieved Party to recover damage, loss, compensation and all sums payable hereunder. 47.5 If after termination pursuant to this Article, it is determined for any reason that the rights and obligations of both Parties shall be decided by arbitration in accordance with Article 7, unless otherwise agreed by the Parties. 47.6. The Parties hereby agree to waive the provision of Article 1266 of the Indonesian Civil Codes to the extent that the court decision or decree is required for the termination of this Contract. IN WITNESS WHEREOF, the Parties have caused to execute this Contract in 2 (two) original copies on the date first written above by their duly authorized representatives.
Contract _________ Page 44 of 44 Owner Contractor For and on behalf of PT. ______________________ For and on behalf of CONSORTIUM OF [CONSORTIUM NAME] Name: ............................. Title: President Director Name: Mr. ......................... Title:

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Agreement Terminal LPG- CLEAN DRAFT.doc

  • 1.
    Contract _________ Page 1of 44 Owner Contractor CONTRACT FOR LPG Terminal ________ Project FOR ENGINEERING, PROCUREMENT AND CONSTRUCTION (EPC/TURN-KEY) BETWEEN PT. ______________________ AND ______________________ CONTRACT No.: _______________________ __ ____ 20_,_, _____________, INDONESIA TABLE OF CONTENTS
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    Contract _________ Page 2of 44 Owner Contractor PART I CONTRACT AND INTERPRETATION Article 1. Definitions Article 2. Aim of the Contract Article 3. Non-Waiver Article 4. Severability Article 5. Amendment Article 6. Governing Law and Language Article 7. Arbitration Article 8. Laws and Regulations Article 9. Notices and Communications Article 10. Effective Date PART II SUBJECT MATTER OF CONTRACT Article 11. The Contractor's Scope of Supply Article 12. The Owner's Scope of Supply Article 13. Time for Commencement and Completion PART III CONTRACT PRICE AND PAYMENT Article 14. Contract Price Article 15. Payment Of Contract Price Article 16. Invoicing Article 17. Bonds Article 18. Taxes and Duties PART IV WORK EXECUTION Article 19. The Contractor's and the Owner's Representatives Article 20. Packing, Marking and Shipping Article 21. Progress Article 22. Testing Article 23. Inspection Article 24. Health, Safety, Security and Environment
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    Contract _________ Page 3of 44 Owner Contractor Article 25. Standards and Codes Article 26. Cooperation with Others Article 27. Responsibility for Work and Property Article 28. Liability for Accidents and Damage Article 29. Training Article 30. Cleaning Up Article 31. Security Guards and Lighting Article 32. Mechanical Completion Article 33. Pre-commissioning and Commissioning Article 34. Acceptance Article 35. Confidentiality PART V. GUARANTEES AND LIABILITIES Article 36. Guarantees and Liquidated Damages Article 37. Warranties Article 38. Patent Indemnity Article 39. Liability of The Parties PART VI. RISK DISTRIBUTION Article 40. Transfer of the Ownership Article 41. Care of Work Article 42. Insurance Article 43. Force Majeure PART VII. CHANGE IN CONTRACT AGREEMENT Article 44. Assignment and Subcontracts Article 45. Variation Order Article 46. Suspension Article 47. Termination APPENDIX “A” SCOPE OF WORK, MASTER SCHEDULE AND BATTERY LIMIT
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    Contract _________ Page 4of 44 Owner Contractor APPENDIX “B” TECHNICAL CLARIFICATION APPENDIX “C” HEALTH, SAFETY, SECURITY AND ENVIRONMENT APPENDIX “D” TRAINING
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    Contract _________ Page 5of 44 Owner Contractor This CONTRACT FOR LPG TERMINAL ............... PROJECT, FOR ENGINEERING, PROCUREMENT AND CONSTRUCTION (EPC/TURN-KEY) NO. ________ is made and entered into in Jakarta on the [DATE] (“Contract”), by and between: PT. ______________________, a limited liability company incorporated under the laws of the Republic of Indonesia, having its principal address at ....................................................., which article of association have been amended in accordance with the Indonesian Law No. 40 year 2007 regarding the Limited Liability Company based on deed No. ________ dated ............... made before Notary ..............., approved by the Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of the Republic of Indonesia No. ............... dated ..............., Supplement No. ..............., and the latest article of association based on deed No. ............... dated ............... made before Notary ..............., approved by Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of Republic of Indnoesia No. ............... dated ..............., Supplement No. ..............., in this matter represented by Reno Pratama Junizwan in his capacity as the President Director, therefore acting for and on behalf of PT. ______________________ (the “Owner”); and Consortium [Consortium Name] a consortium of companies established by PT. ______________________ Heavy Industry, a limited liability company incorporated under the laws of the Republic of Indonesia, having its principal address at ...................................., which article of association have been amended in accordance with the Indonesian Law No. 40 year 2007 regarding the Limited Liability Company based on deed No. ........ dated ........................ made before Notary ......................, SH, approved by the Minister of Law and Human Rights pursuant to Decree No. _______________9 dated ..............., announced in the State Gazzette of the Republic of Indonesia No. 2 dated ..............., Supplement No. __________, and the latest article of association based on deed No. ..... dated ............... made before Notary ..............., SH, approved by Minister of Law and Human Rights pursuant to Decree No. ______________. Tahun ........ dated ........................, announced in the State Gazzette of Republic of Indonesia No. ....... dated ....................., Supplement No. __________, PT. [Consortium member], a limited liability company incorporated under the laws of the Republic of Indonesia, having its principal address at ..............., which article of association have been amended in accordance with the Indonesian Law No. 40 year 2007 regarding the Limited Liability Company based on deed No. ............... dated ............... made before Notary ..............., approved by the Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of the Republic of Indonesia No. ............... dated ..............., Supplement No. ..............., and the latest article of association based on deed No. ............... dated ............... made before Notary ..............., approved by Minister of Law and Human Rights pursuant to Decree No. ............... dated ..............., announced in the State Gazzette of Republic of Indnoesia No. ............... dated ..............., Supplement No. ..............., in this matter represented by ........................ in his capacity as the [...............] of Consortium, therefore acting for and on behalf of the Consortium [Consortium Name] (the “Contractor”). The foregoing may individually be called the “Party” and collectively the “Parties”.
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    Contract _________ Page 6of 44 Owner Contractor WITNESSETH: WHEREAS, the Owner is desirous of engaging a construction company responsible for engineering, detailed design, fabrication drawings, supply of materials, construction, installation, testing, commissioning and rectification of works in accordance with this Contract at Terminal LPG ..............., .................., Indonesia; WHEREAS, the Contractor is an international E.P.C (Engineering, Procurement and Construction) with numerous successful experiences in environmental and industrial plant projects [Note: Need to be confirmed and adjusted if the contractor is changed] and desires to participate in the Terminal LPG ..............., ..............., Indonesia project; WHEREAS, the Owner has appointed the Contractor by Letter of Award No. ___________ dated ...................., and the Contractor have accepted the appointment and therefore the Parties are desirous to implement this Contract. NOW, THEREFORE, in consideration of the premises and the undertaking of the Parties herein contained, the Parties hereto agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 DEFINITIONS In the Contract as hereinafter defined, the following words and expressions shall have the meaning hereby assigned to them except where the context otherwise requires: (i) "Acceptance" shall mean the acceptance of the Plant in accordance with Article 34. (ii) "Article" without a reference to another contract means the Article according to this Contract. (iii) “Battery Limit” shall mean the splitting up of the responsibilities between the Owner (outside of the battery limits) and the Contractor (inside of the battery limits) as provided in the Appendix “A”. (iv) "Commissioning" shall mean the operation of the Plant following Pre- commissioning of the Plant to test that the Plant reach to Performance
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    Contract _________ Page 7of 44 Owner Contractor Guarantee Figures as stipulated in Appendix “A”. (v) “Construction” shall mean performing of all and every civil works, mechanical works, electrical works, instrumentation works, erection, the Commissioning and relevant services as defined in the Contract to be done by the Contractor. (vi) "Construction Equipment" shall mean all facilities, equipment, machinery, tools, apparatus, appliances or things of every kind required in/for the Construction of the Plant to be provided by the Contractor, but does not include machineries, special tools, spare parts intended to form or forming part of the Plant, but as necessary with the Equipment Operation Eligibility Letter (Surat Kelayakan Operasi Peralatan) from Indonesian competent authority. (vii) "Contract" shall mean this Contract and all documents listed and attached herein. (viii) "Contract Price" shall mean the sum named in the Contract subject to such additions thereto or deduction there from as mentioned in Article 14 of this Contract. (ix) "Contractor" shall mean the Consortium of [Consortium Name] who shall be liable towards the Owner for the good performance of the Contractor’s obligations hereunder, and the Contractor’s authorized representatives, successors, and permitted assigns. (x) “Contractor’s Representative” shall mean any person nominated by the Contractor and informed to the Owner in the manner provided in Article 19 hereof to perform the duties delegated by the Contractor. (xi) "Day(s)" shall mean a calendar day. (xii) "Drawings" shall mean any drawing and any modifications of such drawings to be approved in writing by the Owner and such other drawings as may from time to time to be furnished or approved in writing by the Owner. (xiii) "Effective Date" shall mean the date that this Contract enters into full force and effect upon fulfillment of all the conditions stated in Article 10 hereof. (xiv) “Engineering” shall mean all activities related to basic design, detailed design, providing technical documents, project management, inspection, testing, monitoring, reporting, scheduling, programming, controlling.
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    Contract _________ Page 8of 44 Owner Contractor (xv) “FIDIC” shall mean Federation Internationale des Ingenieurs-Consells (International Federation of Consulting Engineers). (xvi) “Force Majeure" shall have the meaning as defined in Article 43. (xvii) “Liquidated Damages” shall have the meaning as the Contractor’s payments of damages to the Owner for the default of his different responsibilities as per Article 36. (xviii) “Liquified Petroleum Gas” or “LPG” shall mean mixture of ethane, propane, butane and pentane plus in liquid form and pressurized. (xix) “LPG Terminal” shall mean reception facilities, storage and distribution of LPG and other supporting facilities at Site. (xx) "Materials" shall mean both Off-Shore and On-Shore materials. (xxi) "Mechanical Completion" means that the Plant has been completed mechanically and structurally as provided in Article 32. (xxii) “MIGAS” shall mean Directorate General of Oil and Gas, Ministry of Energy and Mineral Resources of Republic Indonesia. (xxiii) “Mill Certificate” shall mean documentation from a testing facility that usually shows the chemical makeup and physical strength/properties of materials required to meet certain ASME (American Society of Mechanical Engineers) and ASTM (American Society for Testing and Materials) American Society for Testing and Materials. (xxiv) "Month(s)" shall mean Gregorian calendar month. (xxv) "Off-Shore Materials" shall mean any and all equipment, machinery, special tools for maintenance, apparatus, materials, articles and things of all kinds to be procured from Japan, Europe, North America and/or Korea (outside Indonesia) and supplied by the Contractor for incorporation into the Plant. (xxvi) "On-Shore Materials" shall mean any and all equipment, machinery, apparatus, materials, articles and things of all kinds to be procured inside Indonesia and supplied by the Contractor under the Contract, but does not include Construction Equipment. (xxvii) "Owner" shall mean PT. ______________________ who is named as such in this Contract and includes the legal successors or permitted assigns of
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    Contract _________ Page 9of 44 Owner Contractor the Owner. (xxviii) "Owner’s Representative" shall mean any person appointed by the Owner in the manner provided in Article 19 hereof to perform the duties delegated by the Owner. (xxix) "Party" shall mean individually, the Owner or the Contractor. (xxx) “Parties” shall mean the Owner and the Contractor collectively. (xxxi) “Performance Acceptance Certificate or “PAC” shall mean a certificate to be issued under the Contract by the Owner at the successful completion of the Commissioning of the Plant. (xxxii) "Performance Bond" shall mean the bank guarantee from a state owned bank in Indonesia acceptable to the Owner by the Contractor according to Article 17 of this Contract for securing the good performance of his obligation. (xxxiii) “Performance Guarantee Figures” shall mean the technical performance guaranteed figures stipulated in Appendix “A”. (xxxiv) "Plant" shall mean the LPG Terminal capable of storing 10,000 (ten thousand) ton of LPG including jetty, sub-sea pipe, loading arm, spherical tank to be constructed and performed on the Site. (xxxv) “Pre-commissioning” shall mean the functional tests of the equipment, i.e. the running of single or a series of machines and equipment with electricity, nitrogen, water, air, product and other process media under operation temperature and/or pressure as far as possible or necessary. (xxxvi) "Project Schedule" shall mean the time schedule setting forth the expected commencement dates and/or completion dates of certain activities required for engineering, procurement, construction. (xxxvii) "Site" shall mean the location at which Work shall be performed under the Contract. (xxxviii) “SKPP” shall mean Certificate of Eligibility Use of Equipment (Sertifikat Kelayakan Penggunaan Peralatan) issued by MIGAS. (xxxix) “SKPI” shall mean Certificate of Eligibility Use of Installation (Sertifikat Kelayakan Penggunaan Instalasi) issued by MIGAS.
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    Contract _________ Page 10of 44 Owner Contractor (xl) "Subcontractor" shall mean any supplier, manufacturer, vendor, construction firm and service company to whom execution of any part of the Work, including preparation of any design or supply of any materials, is sub- contracted directly or indirectly by the Contractor, and includes its legal successors or permitted assigns. (xli) "Supply" shall mean the supply of all the Materials, all associated engineering works and services to be undertaken by the Contractor in accordance with the provision of the Contract for the completion of the Plant. (xlii) “Variation Order” shall mean any variation, alteration, addition, omission, modification and/or amendment to the scope of Works caused by a change order as per Article 45. (xliii) “Vendor” means a vendor providing the Supply or a part thereof for the Contractor. (xliv) “Warranty Bond” shall mean the bank guarantee from reputable bank acceptable to the Owner by the Contractor according to Article 17 of this Contract for securing the Plant’s performance within the Warranty Period. (xlv) “Warranty Period” shall mean the period of 12 (twelve) Months from the issuance date of the PAC or 1 (one) month later after the Plant is ready for Commissioning (whichever comes earlier) which the Contractor is responsible for defects with respect to the Plant or any part(s) thereof as provided in Article 37 hereof. (xlvi) “Work” shall mean all of the Contractor’s obligations under the Contract in respect of the construction of a complete and operational Plant as specified in the Contract, including supply of engineering, procurement, construction, training, Pre-commissioning of the Plant at the Site and the fulfillment of all obligations with regard to the Commissioning as specified in Article 33. (xlvii) “Working Days” shall mean Monday to Saturday except Indonesian public holiday(s), formal working day in calendar calculation. (xlviii) “Writing” shall mean any manuscript typewritten or printed statement duly signed by the authorized representatives. 1.2 INTERPRETATION a. Unless the context otherwise requires, references herein to the plural include the singular and references to the singular include the plural.
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    Contract _________ Page 11of 44 Owner Contractor b. All references to Articles are to articles in or to this Contract unless otherwise specified herein. c. Unless the context otherwise requires, the words "herein", "hereof” and "hereunder" and words of similar import when used in this Contract shall refer to this Contract as a whole and not to any particular provision of this Contract. d. References in this Contract to any statute, law, decree, regulation, or other legal requirement shall be construed as a reference to such statute, law, decree, regulation or other legal requirement as re-enacted, re-designated, amended or extended from time to time, except as provided otherwise in this Contract. e. References to any document, instrument or agreement shall mean such document, instrument or agreement as the same may be amended from time to time in accordance with the terms and conditions thereof. f. The table of contents and the headings of the several Articles and Schedules and/or Appendixes of this Contract are intended for convenience only and shall not in any way affect the meaning or construction of any provision therein. g. Reference to the words "include" or "including" shall be deemed to be followed by the words "without limitation" or "but not limited to", whether or not they are followed by such phrases or words of similar import. 2. AIM OF THE CONTRACT The object of this Contract is to construct LPG terminal at [..............., ............... in Indonesia] (Site) with a storage capacity of .......... (...............) ton and its complementary unit as described and scheduled on Appendix “A”, which includes: (a) Performance of complete engineering affairs; (b) Supply of all equipment and materials, with the objective that when erected properly, will result in an efficiently operable and integrated Plant in accordance with the Contract; (c) Performance of complete construction, erection of the Plant, installation, testing, Commissioning and rectification of defect for the Works; (d) Pre-commissioning and Commissioning with the Owner’s operator in accordance with the Contract;
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    Contract _________ Page 12of 44 Owner Contractor (e) Manual book of standard procedure in operation the LPG Terminal; (f) Training of the Owner’s qualified and skilled personnel in operation and maintenance of the plant both inside and outside of Republic of Indonesia. 3. NON-WAIVER 3.1 Failure by either Party to insist upon strict performance of any terms or conditions of this Contract, or failure or delay to exercise any rights or remedies provided herein or by law, or failure to properly notify the other Party in the event of breach, or the review or failure to review any designs shall not release any Party from any of the warranties or obligations of the Contract and shall not be deemed a waiver of any right of any Party to insist upon strict performance hereof or any of its rights or remedies as to any prior or subsequent default hereunder nor shall any termination or suspension under the Contract by any Party operate as a waiver of any of the terms hereof. 3.2 Any waiver of a Party's rights, powers or remedies under the Contract must be in writing, dated and signed by an authorized representative of the Party granting such waiver and must specify the right and the extent to which it is being waived. 4. SEVERABILITY 4.1 If any provision, in whole or in part of the Contract should be found legally, invalid, void or unenforceable or in ineffective, the validity of the other provisions of the Contract shall not be affected thereby. Both Parties shall endeavour to promptly replace the invalid or ineffective term or provision by valid and effective one which correspond best to the original economic and general intent of both Parties and what the Parties intended by such original provision to carry out their purposes. 4.2 Neither Party shall have any liability, obligation or responsibility which is not specifically referred to in the Contract. 5. AMENDMENT Any amendment/addendum of this Contract shall be in writing and signed by authorized representatives of the Parties. 6. GOVERNING LAW AND LANGUAGE
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    Contract _________ Page 13of 44 Owner Contractor 6.1 This Contract and all amendments, modifications, alterations, or supplements hereto, and all disputes or claims concerning the validity, scope, meaning, construction, interpretation, or application of this Contract, any of its provisions, or the performance thereunder by either Party or both Parties shall be construed and interpreted in accordance with the laws of the Republic of Indonesia. 6.2 This Contract shall be executed in both Bahasa Indonesia and English language. In the event of inconsistency between the Indonesian and English language text, the English text shall prevail. 6.3 This Article shall survive after the termination of the Contract. 7. ARBITRATION 7.1 Any and all dispute or disagreements or claims or controversies between both Parties arising out of or in connection with the Contract or the performance thereof shall be amicably settled between both Parties hereto, failing which such dispute shall be settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, in Singapore (“ICC”) by 3 (three) Arbitrators, one of whom shall be appointed by the Owner, one by the Contractor and the third one jointly by the Owner and the Contractor. 7.2 If such an appointment by the respective Party has not been communicated as per the Contract within 30 (thirty) Day(s) after receipt of the request for such selection, or if the Parties have not reached an agreement within the said 30 (thirty) Day(s) period upon the appointment of the third Arbitrator, such appointment shall be made by the ICC in accordance with the said Rules. 7.3 The arbitration shall be conducted in accordance with the then prevailing Rules of Arbitration (“Rules”) of the ICC under said Rules. 7.4 The decision of the Arbitrators shall have a binding effect upon the Parties, and in reaching their decision the Arbitrators shall apply the law of the Contract. 7.5 The place of arbitration shall be in Singapore. The award rendered by the arbitration shall be final and binding upon both Parties, and resort to any Judicial Court or Tribunal is hereby waived except for the purpose of enforcement of such award. 7.6 The language of the arbitration shall be English. 7.7 This Article shall survive after the termination of the Contract. 8. LAWS AND REGULATIONS
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    Contract _________ Page 14of 44 Owner Contractor 8.1 The Parties hereof shall respect FIDIC regulations. 8.2 The Contractor shall respect and observe local laws, regulations, decisions and order and shall obey orders and instructions issued by governmental and local authorities. 8.3 The Contractor shall also avoid any action, which can be prejudicial to security and public order. 8.4 The Contractor, its employees, Subcontractors, the Vendors and representatives shall at all times acquaint themselves in their individual behavior and conduct and comply with applicable laws, ordinances, statutes, rules or regulations. 8.5 The Contractor shall hold the Owner harmless from and against any and all liabilities, damages, claims, fines, penalties and expenses of whatever nature suffered by the Owner arising out of or resulting from the violation of such laws and regulations by the Contractor and its personnel. 8.6 The Contractor shall act as an independent the Contractor performing the Contract. The Contract does not create any agency, partnership, joint venture or other joint relationship between both Parties. Subject to its compliance with the Contract, the Contractor shall be solely responsible for the manner in which the Work is performed. 8.7 All employees, representatives, Subcontractors or Vendors engaged by the Contractor in performing the Contract shall not be deemed to be employees of the Owner, and nothing contained in the Contract or in any subcontract awarded by the Contractor shall be construed to create any contractual relationship between any such employee, representative, Subcontractor or Vendor and the Owner. 9. NOTICES AND COMMUNICATIONS 9.1 All notices required to be served by provisions of this Contract shall be in writing, either delivered personally or by fax/e-mail communications duly addressed and confirmed by letter. Notices to be served on both Parties hereto shall be served at or mailed to the addresses described below or at such other addresses as the recipient Party may from time to time designate by written notice to the other Party. 9.2 The receiving Party shall promptly confirm the receipt of any notice left at its office by putting its seal and signature on a copy presented for this purpose. 9.3 Each Party shall notify to the other the names and the signatures of the persons duly empowered for signing such notices.
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    Contract _________ Page 15of 44 Owner Contractor 9.4 Any notice sent by airmail post and/or registered mail shall be deemed (in the absence of evidence of earlier receipt) to have been delivered 7 (seven) Day(s) after dispatch and in proving the fact of dispatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and conveyed to the postal authorities for transmission by air mail, and notices sent by e-mail or by facsimile transmission shall be deemed to have been received at the time of the dispatch thereof, answerback received (in the case of telex) or appropriate evidence of transmission received (in the case of facsimile). 9.5 Either Party to the Contract may change its nominated address by prior written notice to the other. 9.6 The Contractor shall transmit correspondences and invoices to the Owner at the following address: The Owner: PT. ______________________ .................................................... .................................................... Attention : .................................................... Tel No. : .................................................... e-mail. : .................................................... The Contractor: ______________________. 10. EFFECTIVE DATE This Contract shall become effective on the date of this Contract is signed. 11. THE CONTRACTOR’S SCOPE OF SUPPLY 11.1 General Obligation of the Contractor In consideration of the payments by the Owner to the Contractor for the completion of Works, the Contractor shall be responsible for execute, provide and supply the Engineering, technical documentation, equipment, consumables, Materials, spare
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    Contract _________ Page 16of 44 Owner Contractor parts, the Construction, with due care and diligence within the time for completion in accordance with this Contract. The specific obligations are defined in the Appendix “A”. 11.2 Specific Obligation of the Contractor 11.2.1 The Contractor by entering into this Contract shall be deemed to have satisfied himself as to all conditions and circumstances affecting the Contract Price, as to the possibility of executing the Works as shown and described in the Contract, and as to the general circumstances at the Site of the Works, unless otherwise agreed by the Parties in this Contract. 11.2.2 The Site conditions are in accordance with the information supplied by the Owner. The Contractor shall be responsible for any misunderstanding or incorrect information however obtained from other parties, except for the information given by the Owner. 11.3 The Contractor shall provide utility necessary for the Construction. 11.4 Pre-commissioning and the Commissioning shall be carried out by the Contractor with the Owner’s support and attended by the representatives of MIGAS and Pertamina. 11.5 Each item of Materials supplied by the Contractor shall be entirely of proven design and unused (proved by Mill Certificate and/or Materials testing as required), of good quality workmanship and shall be free from defects in design, materials, manufacturing and workmanship suitable for the use intended. 11.6 All Materials supplied by the Contractor shall be delivered on the basis of delivery at place at Site as per INCOTERMS 2000. The payment of customs duty, Value Added Tax import, customs clearance and any other charges related with customs clearance shall be taken care of by the Owner at its cost. 11.7 The Contractor shall be responsible for all inland transportation of On-Shore Materials within Indonesia. 11.8 The Contractor shall provide drawings, operating and maintenance manuals for all equipment provided under the Contract. 11.9 The Contractor shall provide 4 (four) sets hardcopy of “As-Built” and 1 (one) set softcopy for the Work (one set reproducible for drawing) performed hereunder at the completion of the Work. 11.10 The Contractor shall provide the Owner, in accordance with coordination procedure of all plans, of all drawings, design specification, progress reports, the Contractor’s
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    Contract _________ Page 17of 44 Owner Contractor test results and other data prepared by the Contractor, Vendors or the Subcontractors, if any, in connection with the Plant, the list of which shall be defined and agreed between both Parties. The Owner shall retain rights to drawings, technical requisitions, specifications and other project documents as instruments of service for this Plant. 11.11 The Contractor shall arrange its shipment in an expeditious and orderly manner taking into account the schedule of the erection of the Plant. The Owner shall provide full cooperation with the Contractor and Subcontractor(s) for the successful carry out of the erection and construction of the Plant. 11.12 The Contractor shall be responsible for the timely performance of all Works in accordance with the Project Schedule agreed between both Parties, unless for reasons beyond the control of the Contractor and/or not due to the negligence or willful misconduct of the Contractor. 11.13 The Contractor shall have the right at his own discretion to select Vendors and the Subcontractors and shall obtain the Owner’s written approval considering the vendor list. 11.14 The Contractor agrees that all services required in the performance of the Work (except those specifically furnished by the Owner under the Contract) shall be furnished and paid for by the Contractor at its expense and account. Unless otherwise stated in the Contract, such items of services shall include the Contractor’s site office, temporary electrical wiring or apparatus, temporary piping, sanitary, water for Works, valves, pumps and piping accessories, with connection from process Battery Limits as described in Appendix “A”, supply of first aid, medical services for its workers, on the project site sheds, huts, shelters, shops, and such other facilities that may be required during the term of the Contract. The Contractor shall, at the completion of the Work herein undertaken, remove all such temporary facilities and services, except such items which have specifically been agreed upon in writing between the Owner and the Contractor, leaving the premises in clean and orderly conditions. 11.15 The Contract Price herein agreed to be paid by the Owner to the Contractor shall be in compensation for the performance and completion of the Work, and not as per diem compensation for the number of Day(s) which both Parties may estimate as necessary for the completion of the Work. It is further agreed that the time or times specified herein shall not be construed to limit and restrict the obligation of the Contractor to such period, but the Contractor shall proceed with the Work during all such times as shall be necessary to perform and complete the Work, at no further expense to the Owner than as herein stated in Article 14 of the Contract, unless otherwise agreed by both Parties under the Article 45.
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    Contract _________ Page 18of 44 Owner Contractor 11.16 The Contractor shall oblige Subcontractor to obtain all licenses, permits or authorizations which Subcontractor is required to obtain its own name in accordance with the applicable laws or regulations of Indonesia for the performance of Work under the Contract with the support and assistance of the Owner and the Owner shall acquire all permits, approvals and/or licenses from all local, state or national government authorities or public service undertakings which require the Owner to obtain in its name and which are necessary for the execution of the Works. 11.17 The Contractor shall be responsible for all costs and expenses incurred in connection with the import and export of Construction Equipment, if require. 11.18 Unless otherwise stated in the Contract, the Contractor shall be responsible to provide the followings at the Contractor’s cost: (a) Suitable and proper storage facilities at Site for Plant equipment; (b) Employment of the local personnel as per the qualification to be laid down by the Contractor before starting the related work and services of the Plant, in accordance with the prevailing local laws; (c) Provision of the necessary services and facilities for the Contractor’s supervision staffs in accordance with Appendix “A”. 12. THE OWNER’S SCOPE OF SUPPLY 12.1 The Owner shall assign sufficient space at the Site for the Contractor to effectively execute the Work. The Contractor shall confine its activities within such space or areas for the execution of the Work, it shall request the Owner for further assignment of space and areas at the Site and the Owner shall provide such additional space. 12.2 The Owner shall provide utility necessary for the Pre-commissioning and the Commissioning. 12.3 The Owner shall provide LPG, chemicals, water, electricity, and consumables necessary for Pre-commissioning and Commissioning according to conditions. 12.4 Unless otherwise stated in the Contract, The Owner shall be responsible to provide the followings at the Owner’s cost: (a) To provide the Contractor with all such information and instruction as required under the Contract, in order to enable the Contractor to execute and complete the Work;
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    Contract _________ Page 19of 44 Owner Contractor (b) To obtain all necessary permits, licenses and authorizations to execute this Contract from Government and/or local authorities. In connection therewith, the Contractor will perform assistance work to obtain the above permits, licenses and authorizations as described in Appendix “A”. 13. TIME FOR COMMENCEMENT AND COMPLETION 13.1 Upon the signing of the Contract and the receipt by the Contractor of the notification from the Owner’s bank on the readiness of the irrevocable Stand By Letter of Credit (“SBLC”) to guarantee the fulfillment of payment obligation by the Owner under this Contract, the Contractor shall forthwith commence the engineering work. 13.2 Unless for reasons attributable to the Owner and/or the force majeure conditions, the Contractor shall complete the Works within the period of 20 (twenty) Months (plus 1 (one) month of grace period) commencing from the issuance date of the Performance Bond. 13.3 If for any reasons not attributable to the Contractor nor within the control of the Contractor the Project Schedule is interrupted or delayed or there are reasonable grounds for expecting delay, the Contractor shall promptly advise the Owner, and the Contractor and the Owner shall promptly meet to discuss remedial action and whether a change in the Project Schedule is necessary. 13.4 The Contractor’s document and Drawings to get the Owner’s review and approval, document(s) shall be returned to the Contractor within the 7 (seven) Day(s) after the Owner’s receipt of the Contractor’s document. If any, documents shall be deemed to be reviewed and/or approved. 14. CONTRACT PRICE The Contract Price to be paid by the Owner to the Contractor in consideration of the Contractor's performance for the Engineering and Supply and the Construction under the Contract shall be US$...................... (.................................................... United States Dollars) only. 15. PAYMENT OF CONTRACT PRICE 15.1 The payment of the Contract Price shall be made by the Owner to the Contractor with the following terms:
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    Contract _________ Page 20of 44 Owner Contractor (a) The amount of 85% (eighty five percent) of the Contract Price shall be paid from the Owner to the Contractor with the following conditions: (i) the Work has achieved 85% (eighty five percent) progress as evidenced by the monthly progress report already signed by the Contractor and the Owner; (ii) any SKPP obtained at the time the 85% (eighty five percent) of the Work’s progress achieved; and (iii) all equipments required for the Plant have been delivered to the Site; (b) The amount of 15% (fifteen percent) of the Contract Price shall be paid from the Owner to the Contractor after the issuance of the SKPI. 15.2 Both Parties will specify and agree on the measurement of progress of the Work implementation in the Appendix ”A”. 15.3 During the implementation of the Work, the Contractor will request the approval of progress to the Owner in accordance with the Appendix “A”. 16. INVOICING 16.1 85% (85% (eighty five percent) of the Contract Price Invoice For the payment of the 85% (eighty five percent) of the Contract Price, the Contractor shall submit the following documents to the Owner: (a) 1 (one) original invoice and 3 (three) copies of the invoice; (b) 1 (one) set of original bill of lading and/or Airway bill; (c) 1 (one) original of packing lists; (d) 1 (one) original of a certificate of origin; (e) 1 (one) copy of erection all risks insurance certificate. 16.2 15% (fifteen percent) of the Contract Price invoice For the payment of the remaining 15% (fifteen percent) of the Contract Price, the Contractor shall submit the following documents to the Owner: (a) 1 (one) original invoice and 3 (three) copies of the invoice 17. BONDS
  • 21.
    Contract _________ Page 21of 44 Owner Contractor 17.1 The Contractor shall provide the bonds specified below in favor of the Owner issued by a state owned bank in Indonesia, in the amount, manner and form specified below. 17.2 Performance Bond Within 5 (five) Working Day(s) after the issuance date of the notification from the Owners Bank regarding the SBLC, the Contractor shall provide Performance Bond to the Owner in an amount of US$................. (.......................................... United States Dollars) only which is validfor 21 (twenty one) Months from the issuance date of the Performance Bond or will be expired at the issuance of the PAC. In the event that Project Schedule is extended due to reasons attributable to the Contractor, the validity of the Performance Bond shall be extended to the extended period as agreed by the Parties. The Performance Bond shall be returned and released to the Contractor within 5 (five) Working Day(s) upon the lapse of the abovementioned validity of the Performance Bond or the issuance date of the PAC. 17.3 Warranty Bond The Contractor shall provide Warranty Bond to the Owner in amount of US$................... (........................................... United States Dollars) only which is valid within the Warranty Period. 18. TAXES AND DUTIES 18.1 The Contract Price stipulated in Article 14 excludes all kinds of taxes, which the Owner may have to pay in Indonesia. 18.2 Any and all taxes or charges excluding Value Added Tax (Pajak Pertambahan Nilai) as may be levied in Indonesia with respect to the execution of the Work by the Contractor under the Contract shall be borne and paid by the Contractor. 18.3 Import Value Added Tax (Pajak Pertambahan Nilai), if any, to be imposed on any import of the Off-Shore Materials shall be borne and paid by the Owner. 19. THE CONTRACTOR’S AND THE OWNER’S REPRESENTATIVES 19.1 For purposes of coordinating the Work to be performed by the Contractor hereunder, the Contractor shall nominate its Contractor's Representative.
  • 22.
    Contract _________ Page 22of 44 Owner Contractor 19.2 Such Contractor’s Representative may also be nominated as project manager or a nomination of project manager shall be made simultaneously. 19.3 The Owner may by notice in Writing to the Contractor object to any representative or person(s) employed by the Contractor in the execution of the Works who shall in the reasonable opinion of the Owner misconduct himself or be incompetent or negligent, or commit a serious breach of Site regulations. The Owner shall substantiate the same whereupon the Contractor shall remove such person from the Site. 19.4 The Contractor’s Representative shall represent and act for the Contractor at all times during the currency of the Contract and shall give to the Owner all the Contractor’s notices, instructions, information and all other communications under the Contract. All notices, instructions, information and all other communications given by the Owner under the Contract shall be given to the Contractor’s Representative, except as herein otherwise provided. The Contractor shall not revoke the appointment of the Contractor’s Representative without the Owner's prior written consent, which shall not be unreasonably withheld. If the Owner consents is not given, the Contractor shall appoint some other person as the Contractor’s Representative, pursuant to the procedure set out in Article 19.3. 19.5 If any representative or person employed by the Contractor is removed in accordance with Article 19.3 above the Contractor shall promptly appoint a replacement according to provisions herein above clauses. 19.6 Upon approval of the Contractor's Representative, the Owner shall advise the Contractor of the Owner's representative. 20. PACKING, MARKING AND SHIPPING 20.1 The Contractor shall provide the Materials with adequate and seaworthy export packing suitable for long distance transportation and normal handling during transportation. The shipping mark of package and cases shall be as follows: - Contract Number: - Port of Loading - Port of Discharge - Shipper/Exporter - For Account & Risk of Messrs - Notify Party - Gross Weight
  • 23.
    Contract _________ Page 23of 44 Owner Contractor - Net Weight - Package/Case No. - Measurement: ________ mm x _________ mm x __________ mm The Contractor may add such other numbers, words, references, etc. as the Contractor may require. 20.2 Within 6 (six) Months after the Effective date, the Contractor shall submit to the Owner a preliminary shipping schedule indicating expected items, value, and time of shipment. 20.3 The Owner may give its comments to the Contractor within 1 (one) Month after receipt of such preliminary schedule. A definite shipping schedule shall be agreed between both Parties and submitted to the Owner based on such preliminary schedule and the Owner's comments not later than 2 (two) Months before the expected first major shipment. If any change shall become necessary for the shipping schedule, the Contractor shall notify the Owner the revised shipping schedule without delay. 20.4 The Contractor shall select qualified and reliable shipping companies or forwarding companies and advise the Owner not later than 3 (three) Months before any Materials are ready for shipment. The Contractor shall seek the Owner's agreement within 1 (one) Month upon submission of list of shipping companies or forwarding companies. 20.5 The Contractor shall in time secure the shipping space for the Materials and not less than 7 (seven) Working Days before shipment give the Owner preliminary shipping notice including vessel name and estimated time of departure and arrival together with 3 (three) sets of preliminary packing lists. 20.6 Within 3 (three) Working Days after shipment, the Contractor shall by facsimile give the Owner final shipping notice, including vessel name, time of departure and estimated time of arrival and volume. 20.7 The date of bill of lading of loading port shall be taken as the actual shipping date. 20.8 If any Material is missing and/or damaged during transportation, the Contractor shall supply such item as quickly as possible and if necessary and practicable by air freight, then the cost shall be returned to the Contactor by insurance, so that the Contract period will not be affected by such delay. 20.9 Any taxes and import duties imposed on such replacements, if any, shall be borne by the Contractor if the Owner has already paid such taxes or import duties for the
  • 24.
    Contract _________ Page 24of 44 Owner Contractor missing material or if the Owner has originally obtained exemption of such taxes or import duties for the missing material. 20.10 If the Contractor or any Vendor is required to obtain approval or permit from any governmental authority for exporting special equipment and material, the Contractor shall inform the Owner of such requirement upon the delivery of final shipping schedule. 20.11 If import of any of Materials is controlled by Indonesian Government, the Owner may request the Contractor to submit documents (e.g. certificate of analysis, specification, catalog and technical data) prepared by the manufacturer of such items but not later than 2 (two) Months prior to shipment. The Contractor shall use its best efforts to obtain such documents from the relevant manufacturer(s) and deliver them to the Owner as soon as practicable, however not later than 3 (three) weeks prior to the arrival of the shipment. In the case of radioactive products, the above documents shall be delivered to the Owner not later 2 (two) Months prior to the arrival of the shipment. 20.12 The Contractor shall undertake to ship Materials and/or any parts thereof under deck unless impractical due to oversize or overweight. In case of unavailability of space under deck for any particular shipment, both Parties shall consult with each other to agree on other appropriate arrangement. 20.13 Container shall be allowed to be shipped on deck. 20.14 Transhipment (changing of ship) shall not be allowed, if the transport is not made by containers. 20.15 The Contractor agrees that each shipment of the Materials under Contract shall include spare parts thereof. 21. PROGRESS The Contractor shall give the Owner full information in advance as to its plans for performing each part of its Work and its performance of the Work being done. If the Contractor’s actual progress is inadequate to meet the requirements of the Contract, the Owner may so notify the Contractor who shall thereupon take such steps as may be necessary to improve its progress. Progress report should be on monthly basis. 22. TESTING
  • 25.
    Contract _________ Page 25of 44 Owner Contractor 22.1 Unless otherwise provided in the Contract, testing of Materials and spare parts shall be performed by the Contractor at its expense and in accordance with the Contract requirements so as to facilitate sound and complete fulfillment of the Work. At the completion of the final ex-work quality inspection and testing, the Contractor shall issue the Quality Test Certificate for the relevant equipment. 22.2 The Owner at its cost may attend witness such tests upon written notice to the Contractor. The Contractor shall inform the Owner of schedule, if any, of testing of Materials. 23. INSPECTION 23.1 The Contractor shall request Vendors and/or Subcontractors to allow the Owner or its authorized representative to access their premises at all reasonable times for inspection and expediting purposes with respect to the condition and progress of manufacture, production or testing of the Materials. 23.2 The Contractor shall assist the Owner or its representative to obtain the permission and entry visas for visiting the shop of the Contractor and Vendors. 23.3 The Contractor shall provide sufficient, safe, and proper facilities at all times for such inspection and expediting of Materials, and shall furnish full information concerning all material entering into Materials and grant the Owner and the Owner's Representative free access at all reasonable times to the shops where Materials are manufactured, stored, or assembled. 23.4 All traveling and personal expenses incurred by the Owner or the Owner's Representative for visiting the shops as above shall be borne by the Owner. 23.5 At least 14 (fourteen) Day(s) before the Contractor starts testing the Materials or parts thereof in the Contractor's shops or in those of Vendor and/or Subcontractor, the Contractor shall inform the Owner in writing accordingly, indicating the item concerned, the location of the shop and the schedule of testing. 23.6 The Owner shall, at all reasonable times, be entitled to ascertain the state and progress of manufacture. Visits to the Contractor's manufacturing locations shall be during working hours. 23.7 The Contractor shall, during the visit of the Owner and/or the Owner's Representative, provide the Owner with all documents and data as are necessary to judge the state of the Materials and the progress thereof.
  • 26.
    Contract _________ Page 26of 44 Owner Contractor 23.8 During the inspection of items under manufacture, the visitor(s) shall be attended by the shop superintendent in charge or on deputy, who shall give the visitor(s) all requested information related to the manufacture of the Materials. 23.9 The Owner shall be entitled to visit, in addition to the shops, the offices, which are in charge of the work to be performed in connection with the Contract. 23.10 The Contractor shall be informed of a visit to the respective Vendors and/or Subcontractors in advance at least 7 Day(s) prior to the visit date. 23.11 It shall be the responsibility of the Contractor to inspect Materials prior to delivery. The making or failure to make by the Owner of any inspection of, or acceptance of Materials, shall in no way impair the Owner's right to reject non conforming Materials or release or discharge the Contractor from any of his obligations. 23.12 The Contractor shall, upon receipt of request from the Owner, provide the Owner with information relating to the manufacture, production or testing of Materials. 23.13 Based on the agreed inspection and test program, the Owner has the right to witness inspection activities during the Construction and co-sign on inspection reports. 24. HEALTH, SAFETY, SECURITY AND ENVIRONMENT The terms and conditions in accordance with Health, Safety, Security and Environment for the performance of Works by the Contractor shall be refer to Appendix “C”. 25. STANDARDS AND CODES Wherever references are made in the Contract to standards or codes in accordance with which Work is to be performed, the edition or revision of the standards or codes current on the Effective Date shall apply unless otherwise expressly stated. Lists of standards and codes shall be referred to Appendix “A”. 26. COOPERATION WITH OTHERS The Owner, the Contractor, and the Subcontractors may be working at the Site during the performance of the Contract and the Work or use of certain facilities may be interfered with as a result of such concurrent activities. The Owner and the Contractor shall mutually agree to re-schedule if necessary the order of performance of the Work in such a manner as will minimize interference with the
  • 27.
    Contract _________ Page 27of 44 Owner Contractor work of any other Party. The Owner shall use its best effort to minimize the interruption of the Work by the Subcontractors. 27. RESPONSIBILITY FOR WORK AND PROPERTY 27.1 Work in Progress, Materials, and Construction Equipment The Contractor shall be responsible for and shall bear any and all risk of loss or damage to work in progress, Work, Materials, Construction Equipment supplied and delivered by the Contractor to the Site until the date of issuance of SKPP and PAC. 27.2 Delivery, Unloading and Storage Responsibility for the performance of the Contract shall be as follows or otherwise expressly stated. (a) Receiving all Off-Shore Materials at the point of import and handling any formalities for customs clearance (by the Owner); (b) Maintaining complete and accurate records of all Materials and Construction Equipment received, stored and issued for use in the performance of the Contract by the Owner and the Contractor jointly; (c) Receiving and unloading at the Site by the Contractor; (d) Storing in a secure and proper storage of materials subject to degradation in weather tight enclosures (by the Contractor); (e) Delivering from storage to the Site all Materials and the Construction Equipment as required by the Contractor. 27.3 Property The Contractor shall plan and conduct its operations so as not to: (a) Enter upon lands in their natural state unless authorized by the Owner; (b) Damage, close or obstruct any utility installation, highway, road or other property unless/until permits therefore have been obtained; (c) Disrupt or otherwise interfere with the operation of any pipeline, telephone, electric transmission line, ditch or structure unless otherwise specifically authorized;
  • 28.
    Contract _________ Page 28of 44 Owner Contractor (d) Damage or destroy cultivated and planted areas, and vegetation such as trees, plants, shrubs, and grass on or adjacent to the premises unless, as determined by the Owner, do interfere with the performance of the Work through operation of equipment. The Contractor shall be entitled to compensate on its account due to the Contractor’s failure to protect all materials, equipment and environment as described herein. All costs in connection with any repairs or restoration necessary or required by reason of unauthorized obstruction, damage or use shall be borne by the Contractor. 28. LIABILITY FOR ACCIDENTS AND DAMAGE 28.1 Damage to persons and property before the issuance date of Performance Acceptance Certificate. The Contractor shall, indemnify the Owner in respect of death or injury to any person and of all damages to any property occurring from the performance of the work by the Contractor until the issuance of PAC and against all actions, suits, claims, demands, costs, charges and expenses arising in connection therewith that shall be occasioned attributable to the Contractor or by defective design (other than a design made, furnished or specified by the Owner and for which the Contractor has disclaimed responsibility in Writing within a reasonable time after the receipt of the Owner instructions), materials or workmanship. 28.2 Damage to persons and property during the Warranty Period. 28.2.1 The Owner shall be responsible and liable for any negligence. 28.2.2 If there shall occur any loss of or damage or injury to any property or person attributable to the Contractor, the Contractor shall be liable as follows: (a) In respect of loss of or damage to the said section or portion, the Contractor’s obligations shall be as defined in Article 28.1 of this Contract. (b) In respect of damage or injury to any other property or to any person and of any actions, claims, demands, costs, charges and expenses arising in connection therewith the Contractor shall be liable to the extent that such damage or injury was attributable to the Contractor by defective materials or workmanship used or while on the Site. 28.3 Claims for damage to person or property
  • 29.
    Contract _________ Page 29of 44 Owner Contractor In the event of any claim being made against the non-responsible Party arising out of the matters referred to in and in respect of which the responsible Party may be liable under this Article, the responsible Party shall be promptly notified thereof, and may at his own expense conduct all negotiations for the settlement of the same and any litigation that may arise there from. The non-responsible Party shall not, unless and until the responsible Party shall have failed to take over the conduct of the negotiations or litigation, make any admission which might be prejudicial thereto. The non-responsible Party shall, at the request of the responsible Party afford all available assistance for any such purpose and shall be repaid all reasonable costs incurred in so doing. 28.4 Accident or injury to workmen The responsible Party shall indemnify the non-responsible Party against all actions, suits, claims, demands, costs or expenses arising in connection with death or injuries (other than such as may be the responsibility of the non-responsible Party, his agents or servants) suffered by persons employed by the responsible Party or his Subcontractor, whether at law or under any statutes dealing with the question of the liability of employers for injuries suffered by employees. 29. TRAINING 29.1 The Parties agree that the Contractor will provide training program for the Owners employees as further detailed in Appendix D. 30. CLEANING UP 30.1 The Contractor shall keep the areas in which Work is being performed inclean and safe condition. Upon completion of any portion of its Work, the Contractor shall promptly remove from the Work area all its Construction Equipment, temporary structures except as specifically agreed and surplus materials not to be used at or near the same location during later stages of Work. Upon completion of the Work, the Owner shall at its expense satisfactorily dispose of all rubbish, scrap and waste material as per local regulation. 30.2 The Contractor shall return to the Owner’s warehouse or jobsite storage area all salvageable the Owner-supplied materials and shall restore the Site where appropriate to its original condition except where specifically agreed to the contrary. The Contractor shall leave the premises inclean and safe condition. 31. SECURITY GUARDS AND LIGHTING
  • 30.
    Contract _________ Page 30of 44 Owner Contractor The Contractor shall maintain at its own expense all lighting, fencing and security guards when and where necessary for the proper and safe execution and the protection of the Work until the date of Performance Acceptance Certificate. The Contractor shall, at its expense, provide artificial light sufficient to permit Work to be carried on efficiently, satisfactorily and safely, and to permit through inspection when any Work is performed at night or where daylight is obscured until the date same as above. During such time periods the access to the place of the Work shall also be clearly illuminated. 32. MECHANICAL COMPLETION 32.1 As soon as all the units have been completed mechanically and structurally excluding such minor items as finishing of insulation and painting, and other items not affecting the operation or safety of the unit, the Contractor shall arrange Pre- commissioning as soon as possible until the issuance of SKPP. 32.2 The erection of the Plant is completed if the provisions of the check list for Plant completion have been reached. Some minor amount of work, such as finishing the insulation or painting, removal of temporary erection facilities, or general clean up, still to be done by the Contractor or some deficiency not affecting the Plant operation require correction shall not be regarded as uncompleted erection. 32.3 Within 2 (two) Day(s) after the specified checks have been successfully performed, protocols of Mechanical Completion for the respective units, interconnecting piping and cables shall be signed by the representative of both Parties at the Site. 33. PRE-COMMISSIONING AND THE COMMISSIONING 33.1 As soon as all the units have been completed mechanically as stipulated in Article 32 of this Contract, the Contractor shall perform the Pre-commissioning as soon as possible. 33.2 As soon as the Plant or any units of the Plant thereof is substantially complete, it shall be inspected by the Owner and the Contractor before any tests are carried out. 33.3 When all the items of equipment and materials of the Plant are ready and have been completed pursuant to this Contract, the Parties shall review the procedures for the pre-agreed tests for the demonstration of the completion of Construction of the units of the Plant, to be undertaken in accordance with this Contract and detailed procedures therewith.
  • 31.
    Contract _________ Page 31of 44 Owner Contractor 33.4 After completion of Construction for a unit, Pre-commissioning for this unit can be started by unit. 33.5 During Pre-commissioning, detailed procedures of Commissioning such as instrument calibration, items of recording, sampling methods and analyzing methods which are necessary for Commissioning shall be submitted by the Contractor. 33.6 During Pre-commissioning and Commissioning, the Owner shall prepare the personnel for operation, maintenance and testing as well as all raw materials and utilities in the required quantity and quality. 33.7 Upon completion of the Pre-commissioning procedure, the Contractor will proceed with the Commissioning procedure and both Parties shall agree on the date of the Commissioning and the Contractor shall perform the Commissioning under the Owner’s support within 5 (five) Day(s) from the date of such agreement. 33.8 The Commissioning shall be carried out in accordance with the instruction of the Contractor’s technical personnel on the Site. 33.9 The results and the evaluations of each Commissioning shall be recorded in a protocol and signed by the representatives of both Parties within 2 (two) Day(s) after the completion of such Commissioning. In the event a Commissioning is not successfully carried out due to the Contractor’s fault, the Contractor shall make necessary modifications to the equipment and materials or design or the instruction of operation of the Plant as soon as possible. After making the modifications, the Commissioning shall be carried out again in accordance with Article 33. If it is necessary to have any of the above-mentioned modifications carried out at the Site, the Owner shall make its best endeavours to give its assistance when requested by the Contractor. However, the direct cost of performing modifications or corrections including but not limited to all labor and materials shall be borne by the Contractor. 33.10 Any equipment or materials destroyed or damaged due to the Contractor’s fault and which are within the scope of the Contractor’s Work shall be delivered by the the Contractor, if necessary and practical CIF (in accordance with Incoterms 2000) airport of Indonesia. The delivery shall be performed as quickly as possible. Should it be necessary to send back to the country of origin any equipment for repair or replacement, all transport cost and cost of repairing or replacement shall be borne by the Contractor. 33.11 The replaced or repaired equipment shall be delivered by the Contractor on its own costs including import duties, the cost for transportation to the Site, etc., (if any). 34. ACCEPTANCE
  • 32.
    Contract _________ Page 32of 44 Owner Contractor 34.1 If all the guarantee figures of the Plant are fulfilled in all Commissioning as specified in Article 33, Performance Acceptance Certificate of the Plant shall be signed in 4 (four) copies, 2 (two) copies for each Party, by the representatives of both Parties within 2 (two) Day(s) after the guarantee figures are fulfilled (“Performance Acceptance Certificate“). The Performance Acceptance Certificate of the Plant stipulated in this Article shall not release the Contractor from its liability for Materials during the Warranty Period. The Contractor shall submit to the Owner list of outstanding items to be performed by the Contractor under the Contract. Such list shall be subject to the Owner's approval. 34.2 If the guarantee figures are not fulfilled partly or completely during the Commissioning, both Parties shall jointly make investigations to find out the reason to clarify the responsibility and to settle it as follows: 34.2.1 If due to the Contractor’s fault, the guarantee figures are not fulfilled within 21 (twenty one) Months of working period pursuant to Article 13.2 of this Contract, the Owner shall agree to have an extension of the Commissioning period to make corrections and to have further Commissioning. Should the Commissioning still fail continously, the Parties agree that the Contractor proceed additional Commissioning and after the achievement of the guarantee figures, the Contractor shall pay to the Owner the liquidates damages in accordance with Article 36.2 of this Contract, and the Owner shall issue to the Contractor the Performance Acceptance Certificate. 34.2.2 If the non-fulfillment of the guarantee figures is due to the Owner’s fault (such as lack of LPG, utilities and of other items which are in the Owner’s responsibility according to the conditions of the Contract), the Commissioning periods as per Articles 33.7 and/or this Article shall be extended by the periods of delay due to the Owner’s fault up to a maximum of 6 (six) Months from the Mechanical Completion. During these periods of delay all the expense for the Contractor and an interest based on the interest rate applicable in PT Bank BNI (Persero), Tbk at the then applicable time, shall be for the Owner’s account. The number of the Contractor’s personnel shall be discussed and fixed by both Parties. 34.2.3. In case the Commissioning has not been completed within 27 (twenty seven) Months from start of the work by the Contractor for any reasons attributable to the Owner, the Plant shall be deemed to be accepted and the Owner shall issue to the Contractor the Taking-over Certificate of the Plant. The Warranty Period shall in no event valid beyond 6 (six) Months from the date of the Taking-over Certificate.
  • 33.
    Contract _________ Page 33of 44 Owner Contractor In the event the Plant shall be deemed to be accepted as mentioned above, the Owner shall pay to the Contractor the remaining 15% (fifteen percent) within 10 (ten) Working Day(s) from such acceptance. 35. CONFIDENTIALITY 35.1 Each Party shall take due measures to keep confidential the information communicated to it from the other Party including the Drawings, technical requisitions, specifications and other project documents provided by either Party during the performance of the Contract. 35.2 The obligation of each Party under this Article, however, shall not apply to that information which: (a) now or hereinafter enters the public domain through no fault of the other Party; (b) can be proved to have been in the possession of the other Party at the time of disclosure and which was not previously obtained, directly or indirectly, from such Party; or (c) otherwise lawfully becomes available to the other Party from a third party under no obligation of confidentiality. 35.3 This Article shall survive after the termination of the Contract. 36. GUARANTEES AND LIQUIDATED DAMAGES 36.1 The Contractor guarantees that the Plant shall possess the modern technology among the relevant plants of the Contractor at the date of the Contract, that the Materials are of high quality and that their type selection complies with the requirements of process technology, operation and long-term service. The Contractor shall supply the engineering drawings and other documents completely and correctly in order to carry out successfully the Commissioning as well as normal and safe operation and maintenance of the Plant. 36.2 If the Contractor fails to achieve the Performance Guarantee Figures within 21 (twenty one) Months of working period pursuant to Article 13.2 of this Contract due to Contractor’s faults, then the Contractor shall pay to the Owner the liquidated damages in the amount of 0.1% (zero point one percent) of the Contract Price for each Day(s) of delay starting from the first Day(s) of the 22nd (twenty second) Month. Such liquidated damages, in total, shall in no case exceed 5% (five percent) of the Contract Price.
  • 34.
    Contract _________ Page 34of 44 Owner Contractor 36.3 The Contractor guarantees that the Plant can reach the guarantee figures as stated in Appendix “A” – Quality, Quantity and Procedures for Commissioning provided that the Plant is operated under normal conditions by the Owner. The Contractor shall prove that the guaranteed figures can be reached in the Commissioning according to Article 33. In case of deviations from guaranteed figures due to the Contractor’s fault, the Contractor shall be responsible and bear all costs and expenses to achieve the guaranteed figures. 36.4 The payment of liquidated damages for performance guarantee shall constitute complete satisfaction of the Commissioning and any other claims or actions that may arise in connection with said guarantees, and the Commissioning will be considered by the Parties as having been satisfactorily completed in all respects. However, the liquidated damages under this clause 36, in total, shall in no case exceed 5% (five percent) of the Contract Price. The Owner is entitled to obtain the payment for the liquidated damages mentioned above from the call or withdrawal of the Performance Bond in the maximum amount of 5% of the Contract Price. 36.5 In case any defect of Works is found during erection, mechanical tests, Commissioning the defect shall be checked by both Parties and if such defect is due to the Contractor's fault, the Contractor shall correct, repair or replace the Work at its own expenses. If the Contractor is responsible for removing or correcting the defects, the Owner shall supply the Contractor, if requested by the Contractor, the necessary personnel, cranes, etc. for performing the removal of the defects. The cost thus incurred shall be borne by the Contractor. The removal of defects shall be performed as quickly as possible and the Contractor shall do its best to ensure that the progress of the Work is not adversely affected. 36.6. Each of the Parties hereby represents and warrants that each Party is duly organized and validly existing under the laws of the Republic of Indonesia and has the power and authority to enter into this Contract and to carry out and perform the terms and conditions of this Contract. 36.7. Each Party has taken any and all necessary actions and necessary approvals, authorizations and formalities required to be obtained in order to enable each Party to lawfully enter into and perform its obligations under this Contract and to ensure that such obligations expressed to be assumed by it hereunder are legal, valid, binding and enforceable and have been done, fulfilled or performed. 37. WARRANTIES
  • 35.
    Contract _________ Page 35of 44 Owner Contractor 37.1 The Contractor shall fully perform and complete the Work under the Contract in a good and workmanlike manner as defined in the Contract. 37.2 All Work performed and Materials installed by the Contractor are warranted to conform to the design, drawings, documents, plans, specifications, codes, regulations and standard industry practices as set forth in the Contract and shall be at least those which can reasonably be expected from an experienced leading the Contractor performing similar work under similar conditions, of sufficient size and capacity and of first class quality so as to fulfill in all respects all operating conditions specified in the Contract and free from any defect due to faulty design, defective materials and/or faulty workmanship. If any defect of the Work attributable to the Contractor is found at any time up to 12 (twelve) Months from the date of Performance Acceptance Certificate and the Contractor is notified of such defect, the Contractor shall, at its own expense and as promptly as possible, repair, replace or remedy such defect as may be necessary to permit the Work to conform to the applicable drawings, documents, plans, specifications, codes, regulation and standard industry practices. 37.3 The Warranty Period for the replaced or repaired parts for reasons attributable to the Contractor shall be further extended for that effect by 12 (twelve) Months from the date of such repair or replacement. However, this extended Warranty Period shall not in no case be longer than 24 (twenty four) Months after the date of Performance Acceptance Certificate. The amount of the Warranty Bond must be maintained through the extended Warranty Period pursuant to Article 17.3. 37.4 The Owner shall notify the Contractor in writing the nature of any defect, which occurs within the Warranty Period, however, such notification shall be made at the latest within 30 (thirty) Day(s) after expiration of the Warranty Period. 37.5 The Contractor, if the Owner is authorized by the Contractor, shall reimburse the Owner the cost pertaining to such repair and/or services. Customs clearance and transport within Indonesia in connection with defective or replaced equipment or materials shall be arranged by the Owner at cost of the Contractor, also any applicable taxes in Indonesia in connection therewith shall be paid by the Contractor. 37.6 Any and all costs and expenses incurred by the Contractor in making good and correcting any defect, except for defects attributable to the Owner, in accordance with this Article shall be borne by the Contractor including but not limited to the cost for repair and replacement of items of Materials, customs duties, taxes and port charge, transportation of materials from or to the Site, dismantling and removal from the Site and export of any defective item of Materials, construction, erection, testing and any cost or expense for modification or repetition of design, engineering, etc.
  • 36.
    Contract _________ Page 36of 44 Owner Contractor 37.7 In the event the Contractor fails to start to remedy any defect, except for defects attributable to the Owner, within 14 (fourteen) Day(s) after the receipt of the Owner’s written notice, describing defect in accordance with Article 37, the Owner shall be entitled to claim under the Warranty Bond to the extent of the cost of undertaking the necessary remedial service itself. Such notice shall identify the nature of and the date on which the Contractor was given notice of the defect, and shall include statements that (i) the Contractor has not remedied the defect(s), and (ii) the Owner desires to remedy such defect(s). 37.8 The defective parts shall be returned by the Owner to the Contractor at the request of the Contractor at the Contractor's cost. The request shall be made within 14 (fourteen) Day(s) after replacement or renewal, and the parts shall be returned as soon as possible after the request. 37.9 In case of willful misconduct or gross negligence by the Contractor, the provisions of Article 37 shall be the sole remedy available to the Owner under the Contract for rectification of defects in the Work. 37.10 The Contractor's response to defects or guarantee service calls under this Article shall be such that upon notification by the Owner that repair of defects or service work is required, the Contractor shall: (a) Respond immediately to faximile, telephone or e-mail notification. (b) Dispatch engineers or other personnel to Site within the shortest possible time, if requested by the Owner. 37.11 Under the warranties of Article 37, the Contractor shall not be responsible for the defects and/or damages due to i) improper operation or maintenance of the Plant by the Owner, ii) normal wear and tear, or iii) any design, specifications or other data designated, supplied or specified by or on behalf of the Owner. 38. PATENT INDEMNITY 38.1 The Contractor shall indemnify the Owner from and against any and all direct damages, claims, demands, losses, costs and expenses the Owner may suffer as a result of any infringement or alleged infringement of any patent, registered design, trademark, copyright other intellectual property right registered or otherwise existing at the signing date of the Contract by reasons of the use of the Supply and/or Materials, but the Owner shall not settle any claim or demand from a third party without taking procedures as per Article 38.2. 38.2 If any proceedings are brought forward or any claim is made against the Owner arising out of the matters referred to in Article 38.1 above, the Owner shall promptly
  • 37.
    Contract _________ Page 37of 44 Owner Contractor give the Contractor written notice thereof and the Contractor may at its own expense and in the Owner’s name conduct such proceedings or claim and any negotiations such as either make available the Owner the rights in question or at the Contractor’s discretion alter the Supply at the Contractor’s cost. 38.3 If the Contractor fails to notify the Owner within 15 (fifteen) Day(s) after receipt of such notice that it intends to conduct any such proceedings or claims, then the Owner shall be free to conduct the same on its own behalf. Unless the Contractor has so failed to notify the Contractor within 15 (fifteen) Day(s) period the Owner shall not make any admission which may be prejudicial to the defense of any such proceedings or claim. 38.4 The Owner shall, at the Contractor’s request, afford all available assistance to the Contractor in conducting such proceedings or claim, and the Owners shall be reimbursed by the Contractor for all reasonable expenses incurred in so doing. 39. LIABILITY OF THE PARTIES 39.1 The maximum aggregate liquidated damages of the Contractor to the Owner arising under the Contract in respect of liquidated damages under Articles 36.2 and 36.4 shall in no case exceed 5% (five percent) of the Contract Price. 39.2 Neither Party shall be liable to the other Party for any consequential damage or losses including loss of production or loss of profits. 40. TRANSFER OF THE OWNERSHIP The ownership of the Plant will be transfer upon the Parties sign the minutes of transfer of ownership. For the avoidance of doubt the signing of the minutes of transfer of ownership will be made at the same date with the issuance of the PAC. 41. CARE OF WORK 41.1 The Contractor shall be responsible for the care and custody of the Work and the Materials or any part thereof until the date of Performance Acceptance Certificate of the Plant pursuant to Article 34 hereof. 41.2 The Contractor shall also be responsible for any loss of or damage to the Work caused by the Contractor in the course of any work carried out pursuant to Article 37 hereof.
  • 38.
    Contract _________ Page 38of 44 Owner Contractor 42. INSURANCE 42.1 The insurance to be taken out and maintained by the Contractor with reputable insurance companies shall be as specified below. 1 (one) copy of the relevant policies shall be promptly passed to the Owner. The insurance should cover the value of Contract Price. 42.2 The Contractor shall maintain the insurance policies, described below, in full force and effect from the commencement of Work hereunder up to the date of Performance Acceptance Certificate of the Plant. As required by the Owner, the Owner will be named as beneficiary or co-beneficiary in respect of claims hereunder. 42.3 If the Contractor fails to take out and/or maintain in effect the insurance referred to above, the Owner may take out and maintain in effect such insurances and may deduct any amount due to the Contract under any premium which the Owner shall have paid to the insurance companies. 42.4 The Contractor shall promptly advise the Owner of any and all claims lodged under the insurance policies, and the status of any outstanding or unpaid claims in respect thereof. 42.5 The Contractor (or Subcontractors) shall maintain the following insurance policies with the Owner as a co-insured: (a) Erection All Risks Insurance (b) Third Party Liability Insurance (c) Employee social security (Jaminan Sosial Tenaga Kerja) for the employee of the Contractor only 43. FORCE MAJEURE 43.1 Neither Party shall be considered in default of performance of its obligation under the Contract to the extent that the performance of such obligation is delayed or prevented by force majeure. 43.2 Force majeure is herein defined to be acts of God, acts of war (declared or undeclared), acts of government, embargo, hostilities, riots, earthquake, flood, civil unrest, insurrection, strikes or lockouts, etc. which are beyond reasonable control of both Parties and unforeseeable as of the signing date of the Contract.
  • 39.
    Contract _________ Page 39of 44 Owner Contractor 43.3 Either Party shall give notice in writing to the other of the occurrence of Force Majeure as soon as possible after its occurrence including its estimated duration (if possible) and shall determine a mutually agreeable course of action. Neither the Owner nor the Contractor shall be subject to any liability whatsoever for any delay or loss caused by Force Majeure. 43.4 As soon as Force Majeure is terminated the respective Party shall give immediate written notice to the other Party. At that time the Parties shall mutually agree on the further course of action. 43.5 Defects or damages in Materials due to failure to perform in accordance with or breach of the Contract or negligent acts or omissions by the Contractor's Vendor or shipping company hired by the Contractor or other persons under the Contractor's responsibility or their representatives, shall not constitute force majeure. 43.6 Interruption of obligations under the Contract due to force majeure shall not be considered a waiver of either Party's such obligations. If an event of force majeure prevents either Party from carrying out its obligations under or in connection with the Contract, such Party shall promptly notify in writing the other Party. 43.7 Each Party, upon giving written notice as above, may suspend its obligation to the extent necessitated by the occurrence of force majeure, and relevant periods shall be extended commensurate with such suspension. Nothing hereby shall alter any obligation with respect to portions of Work not affected by such force majeure. 43.8 The occurrence of force majeure shall not entitle either Party to any additional compensation whatsoever unless otherwise agreed between both Parties. 43.9 If after 180 (one hundred eighty) Day(s) from the date of giving the aforesaid notice, the notifying Party shall still be so prevented for reasons of force majeure form performing its obligations under the Contract, both Parties shall consult with each other in good faith with a view to determining equitable action appropriate under such circumstances and also termination should be taken into reasonable consideration. 43.10 Notwithstanding the period specified under the preceding paragraph, it is hereby mutually agreed that at any time subsequent to the occurrence of force majeure, either Party may, upon its request, discuss amicably with the other Party in order to set the provisional arrangements to be adopted by both Parties for the purpose of minimizing or avoiding any losses, damages or expenses which the affected Party may incur in consequence of the suspension as provided hereunder. 43.11 The above mentioned Article 43.1 through 43.6 shall be in effect until the date of Performance Acceptance Certificate.
  • 40.
    Contract _________ Page 40of 44 Owner Contractor 44. ASSIGNMENTS AND SUBCONTRACTS 44.1 The Contractor shall not subcontract with any third party for the performance of all or any portion of the Work without the prior written approval of the Owner unless otherwise stated, provided however that such approval shall not unreasonably withheld by the Owner. Subcontracts must include provisions to secure all rights and remedies of the Owner provided under the Contract, and must impose upon the Subcontractor all of the general duties and obligations required to fulfill this Contract. 44.2 No assignment or subcontract approved would relieve the Contractor of its responsibilities under the Contract. 45. VARIATION ORDER 45.1 The Owner may, at any time, in writing, request the Contractor to make variation in the Work to be performed by the Contractor under the Contract. 45.2 In the event the Contractor deems it necessary for the execution of the Work or deems it appropriate taking into account of then prevailing circumstances, the Contractor may also submit to the Owner a variation proposal without receiving the Owner's request for a variation. 45.3 Upon receipt of the Owner's written request for a variation in Work, the Contractor shall prepare a variation proposal and furnish the same to the Owner within a reasonable period of time but normally within 14 (fourteen) Day(s) following receipt of such request. Each variation proposal shall be in writing and be accompanied with information including the effect upon the Contractor's guarantees, and/or upon any other undertakings by the Contractor hereunder. 45.4 In spite of the Owner's request for a variation as stipulated in Article 45.1, the Contractor shall not be obligated to effect such variation which may, in the written opinion of the Contractor to the Owner, have an adverse effect upon the Contractor's guarantees or which will not be technically feasible. 45.5 Within 14 (fourteen) Day(s) from receipt of a variation proposal as specified in Article 45.2, the Owner shall inform the Contractor in writing of whether the Owner desires to proceed with the relevant variation in Work. If the Contractor does not receive any written notice from the Owner within the said 14 (fourteen) Day(s), such request for a variation in Work shall be deemed to have been canceled by the Owner. In case of cancellation, the Contractor shall not be reimbursed for the cost
  • 41.
    Contract _________ Page 41of 44 Owner Contractor of making the proposal. The Contractor shall not be responsible to the Owner for any claims by the Owner arising from such cancellation. 45.6 If the Owner and the Contractor agree to effect on the Contract provisions based on all information contained in a variation proposal, the Owner shall notify or thereof by way of issuance of a written variation order (“Variation Order”) incorporating the variation in question and providing for any such necessary amendment to the Contract as agreed between the Owner and the Contractor resulting from the effect of such variation in every respect. The Contractor shall not be required to proceed with any variation in Work before its receipt of the Owner's written Variation Order. 45.7 If, during the execution of Work, the Contract Price and the Project Schedule are affected by the Owner's failure or delay in performing its obligations, or due to the Variation Order from the Owner, the Contract Price and the Project Schedule shall be reasonably adjusted by mutual agreement. 46. SUSPENSION 46.1 The Owner may for essential reason not deriving from the Contractor’s fault or breach of the Contract suspend the Contract for a total aggregate period of 45 (forty five) Day(s). 46.2 Within 14 (fourteen) Day(s) prior to each expected suspension, the Owner shall, if possible, inform the Contractor of the reason and period of the suspension and both Parties shall make a friendly mutual settlement during such 14 (fourteen) Day(s) regarding the additional cost for the Contractor, the Project Schedule and other effects of the suspension for the Contract. Should the total aggregated period of suspension for the Contract exceed 45 (forty five) Day(s), the Owner shall pay all additional costs and expenses to the Contractor and the Owner shall submit a Variation Order as per Article 45 and the time for completion shall be extended relevantly. 46.3 The Contractor may by notice to the Owner suspend performance of all or any of its obligations under the Contract in case that the Owner fails to pay any sum due under the Contract within 14 (fourteen) Working Day(s) from the due date of payment. 47. TERMINATION 47.1 Termination for the Contractor’s default
  • 42.
    Contract _________ Page 42of 44 Owner Contractor 47.1.1 Notwithstanding any other provisions of the Contract, the Contractor shall be considered by the Owner in default of its contractual obligation under the Contract if it: (a) Substantially fails to make delivery or substantially fails to perform Work within the time specified on Appendix “A”; (b) Substantially fails to perform in accordance with provisions of the Contract or so substantially fails to make progress as to endanger performance of the Contract in accordance with its terms; (c) 47.1.2 Upon the occurrence of any of the foregoing, the Owner may notify the Contractor in writing of the nature of the failure, and the Parties shall discuss this matter and shall agree on a new delivery or progress schedule. 47.1.3 If the Contractor still substantially fails to comply with such schedule, the Owner may terminate the whole or part of the Contract upon giving the Contractor 14 (fourteen) Day(s) prior written notice. 47.1.4 Upon such a termination by the Owner, the Contractor shall either immediately or upon such date as is specified in the notice of termination: (a) cease all further work; and (b) terminate all sub-contracts, except those to be assigned to the Owner pursuant to item (d); and (c) deliver to the Owner the parts of the Work executed by the Contractor up to the date of termination; and (d) to the extent legally possible assign to the Owner all right, title and benefit of the Contractor to the Work and in the Materials as at the date of termination, and, as may be required by the Contractor, in any sub-contracts concluded between the Contractor and the Owner deliver to the Owner all drawings, specifications and other documents prepared by the Contractor or its Subcontractors as at the date of termination in connection with the Works. (e) The Owner may enter upon the Site and may complete the Work employing any third party. The Owner may take over and use, with payment of rental fee to the Contractor, any Construction Equipment belong to the Contractor and which is on the Site. Upon completion of the Work or such earlier date as the Owner thinks appropriate, the Owner shall return to the Contractor such Construction Equipment.
  • 43.
    Contract _________ Page 43of 44 Owner Contractor 47.1.5 The Contractor shall be entitled to be paid the Contract Price attributable to the Work executed as at the date of termination. 47.2 Termination for the Owner’s default If the Owner fails to open the SBLC within 45 (forty five) Working Day(s) after the date of the notification from the Owner’s bank on the readiness of the SBLC, the Parties shall meet and discuss to proceed further step. If the Owner fails to open the SBLC within the agreed period, then the Contractor shall be entitled to terminate this Contract by a written notice to the Owner, and in such a case, this Contract shall be considered terminated and Contractor will have the rights to claim for losses, damages and expenses incurred by the Contractor and the Owner shall pay to the Contractor such losses, damages and expenses. 47.3 Either Party may terminate the Contract immediately and without incurring thereby any liability to the other, by merely serving a notice of termination on the other in any of the following events: (a) If the other Party is declared in court or notoriously becomes insolvent or bankrupt; (b) If a receiver is appointed to take possession of the business or assets of the other Party and his appointment is not revoked within 15 (fifteen) Day(s). 47.4 Termination of the Contract is without prejudice to any claim for any antecedent breach and to the right of the aggrieved Party to recover damage, loss, compensation and all sums payable hereunder. 47.5 If after termination pursuant to this Article, it is determined for any reason that the rights and obligations of both Parties shall be decided by arbitration in accordance with Article 7, unless otherwise agreed by the Parties. 47.6. The Parties hereby agree to waive the provision of Article 1266 of the Indonesian Civil Codes to the extent that the court decision or decree is required for the termination of this Contract. IN WITNESS WHEREOF, the Parties have caused to execute this Contract in 2 (two) original copies on the date first written above by their duly authorized representatives.
  • 44.
    Contract _________ Page 44of 44 Owner Contractor For and on behalf of PT. ______________________ For and on behalf of CONSORTIUM OF [CONSORTIUM NAME] Name: ............................. Title: President Director Name: Mr. ......................... Title: