Table of Contents

1. Definitions
2. General
3. Company Responsibilities
4. Subcontractor responsibilities
5. Time
6. Materials and Ownerschip/title
7. Assignment and Subcontracting
8. Quality
9. Environmental, Health and Safety (EH&S)
10. Subcontract Price and Payment,
11. Notices, Waiver, Secrecy, Confidential information, Patents and Publicity Releases.
12. Guarantees and Liabilities
13. Indemnification and Insurance
14. Changes
15. Cancellation, Suspension and Termination
16. General, Legal conditions

1. Definitions

In this Subcontract, the following words and expressions shall have the meanings hereby assigned to them except where the context otherwise requires:

1.2  Index and Headings

Headings and sub-headings of articles and indices used in these General Terms and Conditions of Subcontract and in the Special Terms and Conditions of Subcontract are for convenience and ease of reference only and in no way define, limit or describe the scope or intent of any provision or of the Subcontract as a whole.

1.3  Interpretation

In case of conflict between provisions in any part of the Subcontract documents, Subcontractor shall immediately notify Company of the conflict and Company shall issue instructions as to the manner in which the conflict is to be resolved. In this Subcontract, unless the context otherwise requires:

1. references in the singular number shall include references in the plural number and vice versa, words denoting natural persons shall include corporations and any other legal entity and vice versa, and words denoting any gender shall include every gender;
2. references following the word “including”, “such as” or “particularly” are to be construed without limitation; they are merely given as an example;
3. reference to a particular article, sub-article or paragraph are references to an article, sub-article or paragraph in these General Terms and Conditions of Subcontract;
4. all headings in the Subcontract are inserted for convenience only and are to be ignored for the purposes of interpretation;
5. all references to documents include all amendments and replacements thereof and all supplements thereto;
6. without prejudice to the provisions in these General Terms and Conditions of Subcontract, all the references to legislation include all the replacements and amendments thereto;
7. all references to dates shall be references to the Gregorian calendar.

2  General

2.1  Subcontract

The conclusion of the Subcontract shall only be evidenced by the formally signed Subcontract issued by Company. Subcontractor may not derive any rights from oral arrangements.

Precedence of the Subcontract documents shall be as defined in the Form of Agreement.

2.2 Representation

2.2.1 Prior to the commencement of the Work, each party shall appoint a representative with authority to act on its behalf in all matters relating to the Subcontract, together with a deputy. Either party may change its representative at any time by giving the other a prior notice of such change.

2.2.2 The representative or his deputy may delegate specific duties to one or more nominated persons, in which case the other party’s representative shall be informed of the authority delegated to such persons.

2.2.3 All notices, permissions, claims, instructions, consent, approvals and other information to be given in accordance with the provisions of the Subcontract, shall be in writing to the relevant party’s representative.

2.2.4 If any party purports to issue any notice, permission, claim, instruction, consent, approval or other information other than in writing, it shall not be effective until confirmed in writing.

2.2.5 Any notices, permissions, claims, instructions, consents, approvals or other information issued by any other person than the submitting party’s representative, his deputy or a nominated person according to Article 2.2.2 (within his field or authorisation), shall be considered null and void.

2.2.6 Subcontractor shall not contact, discuss, and take any direction from Owner in relation to any parts of the Work, which will affect the Work, progress of the Work, or the cost of the Work, with the exception of carrying out any emergency measure for the safety of personnel and/or property. Subcontractor shall immediately report the occurrence of such emergency situation to Company.

2.2.7 Subcontractor shall at all times afford Company and other personnel authorised by Company, access to Subcontractor’s Work Sites and the Work Site, including access to all documents relating to the Work which are kept at these

2.2.8 Any direction, notification, approval, review, comment or the like by Company shall not relieve Subcontractor of any of its duties or responsibilities under the Subcontract except when such direction, notification, approval, review, comment or the like is in writing and specifically mentions such relief.

3.  Company Responsibilities

3.1  Company Furnished Services

Company shall keep Subcontractor advised in writing about Company's representative and designated representatives.

Other information supplied by Company is defined in Section 5 of the Subcontract Package.

3.2  Company Documents and Drawings

Company shall furnish to Subcontractor:

1. Plans, drawings, technical specifications and other technical data for the performance of the Work in numbers and types as indicated in the Subcontract.
2. Upon request and for information only, one copy of relevant Supplier drawings and/or Supplier documentation.
3. if applicable, two copies of relevant Owner documents such as Safety and/or Security Rules and Regulations.

Company shall keep Subcontractor advised about the estimated time of arrival of Materials to be supplied by Company.

4.  Subcontractor Responsibilities

4.1  Work

4.4.1 The Subcontractor acknowledges that he has obtained all necessary information on all matters that may affect the Subcontract or the execution of the Work including information concerning:

1. all applicable laws and regulations in effect at the date of Subcontract signature; all legal requirements and practices;
2. all general and local conditions that may in any way affect the execution of the Work and/or the costs thereof to Subcontractor particularly those bearing upon transportation, logistics, temporary import/export duties, storage, weather and physical conditions and the sources, availability, quality and costs of obtaining materials, labour personnel, water, electricity, fuel, consumable, spares, communications, equipment, goods and services;
3. the nature, location and suitability of Company’S Work Site including the conformation, condition, dimensions, levels, character and nature of the ground and all surface and subsurface conditions or materials or things to be there encountered including groundwater, cables, drains, pipes, roads, and buildings;
4. the sufficiency, accuracy and reliability of all exploratory Work and all information presented in the drawings, specifications and other pertinent documentation provided by Company and included in the Subcontract.

4.4.2 Subcontractor shall keep himself informed of and comply with and ensure that the Work is carried out in compliance with all relevant requirements of any law in the country where the Work’S are to be carried out and any requirements and orders of relevant certifying agencies.

Subcontractor shall obtain all permits, licenses and other governmental authorisations, which are necessary for the performance of the Work except for those which must be obtained in Owner’s or  Company's name.

If any requirements are changed after signing of the Subcontract and if Subcontractor can demonstrate that such a change has an effect on Subcontractor’s costs and/or progress in performing the Work, then the Subcontract Price and/or the Subcontract Schedule shall be adjusted accordingly. Any requests from Subcontractor in this respect must be made in accordance with the provisions of Article 14.1 , provided, however, that the time limit in this respect shall be 14 Days after the change in the requirements has been published.

4.4.3 Subcontractor shall in due time obtain and maintain those approvals, licenses, authorisations and permits which are necessary for the performance of the Work and which are required to be or can be obtained in Subcontractor’s name. Without imposing any obligation on Company, the latter will provide any reasonable assistance in this.

4.4.4 Subcontractor shall not contact governmental and/or municipal authorities in connection with  the Work without the prior written consent of Company.

4.4.5 Owner/Company shall in due time obtain and maintain all other approvals and permits which pursuant to the local requirements must be in its name. When so requested by Owner/Company, Subcontractor shall assist in obtaining such approvals and permits relating to the Work as can only be obtained in Owner/Company’s name.

When requested by Company, Subcontractor shall submit such information about the Work and about Subcontractor and SubcontractorS, as Company is obliged to submit to any governmental authorities having its jurisdiction over the Work.

4.4.6 Neither any failure or negligence by Subcontractor in the obtaining or getting acquainted himself with all necessary data and information nor any discrepancy or insufficiency in any data or information, whether concerning the foregoing or any other matter affecting the Subcontract or the execution of the Work, shall relieve Subcontractor of any risks, liabilities or obligations under the Subcontract and shall in no way give rise  to any claim against Company whether directly or by increased payment or extension of time, except and to the extent that such claim(s) may be expressly provided for and permitted in accordance with the provisions of the Subcontract.

4.4.7 Subcontractor shall provide labour, the supervision thereof and all working equipment required for the execution of the Work together with all such other things, whether of a temporary or permanent nature, required in connection with the Work insofar as the necessity for providing the same is specified in or may reasonably be inferred from the Subcontract. In discharging his obligations Subcontractor shall:

1. be responsible for and give priority to safety in order to avoid loss or damage to property and injury to persons and in connection therewith adopt safety standards and procedures equivalent to best international safety practice;
2. co-operate with Company’s representative and other Company personnel.

Notwithstanding anything to the contrary expressly set out in or to be implied from the Subcontract, no actions taken by or on behalf of Company in checking, verifying, reviewing, consenting to, approving, testing or inspecting the Work or the Materials shall in any way relieve or modify the obligations or liabilities of Subcontractor in accordance with the requirements of the Subcontract and otherwise in accordance with the obligations and liabilities of Subcontractor.

4.4.8 Subcontractor covenants to perform his obligations under the Subcontract:

1. using the skill, care and diligence to be expected of appropriately qualified and experienced professional engineers, manufacturers and constructors with experience in works of a type, nature and complexity similar to the Work;
2. in accordance with good modern engineering principles and practices of a standard equivalent to those adopted for similar projects;
3. so that all workmanship, manufacture and fabrication forming part of the Plant conform to the standards and codes of practice;
4. so that the Plant shall upon the issue of the Completion Certificate be in accordance with all relevant requirements of the Subcontract;
5. so that the Plant can be operated in accordance with the requirements of the Subcontract, in accordance with the operating and maintenance manuals supplied by Company and in accordance with internationally recognised good industry practice for the operation of such plants.

4.4.9 Subcontractor shall, in accordance with and where applicable in this Subcontract, review the drawings, specifications and standards and any referenced or related documents issued with the Subcontract, to ensure that it does not conflict with another drawing, specification or standard referenced in this Subcontract. Additionally Subcontractor shall identify any conflicts that may prevent the Plant meeting the Performance Specification.

4.4.10 Should the Subcontractor notify Company of such a conflict within three (3) weeks after receipt of drawings, specifications and standards and the resolution of such a conflict in accordance with Article 14.1 of these General Terms and Conditions of Subcontract would result in increased cost, Company shall have the right to require that Subcontractor implement either:

1. the more expensive drawing, specification or standard, in which case Company shall issue a Variation Order which compensates Subcontractor for the increased cost; or
2. the less expensive drawing, specification or standard, without additional compensation. Subcontractor shall be entitled to no additional compensation for such conflicts discovered more than three (3) weeks after the receipt of drawings, specifications and standards.

If at any time the resolution of such a conflict in accordance with Article 14.1 of these General Terms and Conditions of Subcontract would result in decreased cost, Company shall have the right to require that Subcontractor implement either:

1. the more expensive drawing, specification or standard, without additional compensation; or
2. the less expensive drawing, specification or standard, in which case Company shall issue a Variation Order which credits Company for the decreased cost.

4.4.11 Subcontractor shall perform all design and engineering required for the execution of the Work to cover all disciplines where applicable within this Subcontract, including but not limited to, data/requisition sheets (updates), detailed drawings, reports and calculations, necessary for all Material procurement, prefabrication, installation, construction and testing and any other activities required to ensure timely completion of the Plant.

Subcontractor shall perform all Work so as to comply with and conform to the latest issues of applicable codes, including all environmental, health and occupational safety standards.

4.4.12 Subcontractor shall provide where specified in the Subcontract and where required all permanent Materials, equipment and spare parts for the Facilities, including but not limited to, procurement, fabrication, inspection, expediting, customs clearance and transportation from the point of origin to the work site.(Refer to Section 5 Scope of Work

4.4.13 Upon failure of Subcontractor to comply with any of the requirements of this Subcontract, Company shall have the authority to instruct Subcontractor to stop any operations affected by such failure until such failure is remedied. No such stop orders shall give rise to any claim for extension of time or for increased costs or damages by Subcontractor, and such stop shall not be considered as a suspension according to Article 15.2

4.4.14 If Subcontractor fails to correct such failure within 10 working days following notice thereof from Company, Company may, without prejudice to any other rights or remedies, hold in abeyance any due payments to Subcontractor.

4.2. Subcontractor Document and Drawings

4.2.1 Subcontractor shall provide where specified in the Subcontract, all administration and reporting requirements, including but not limited to Quality plans, Safety plans, Planning and Schedules, detailed work breakdown structures, progress and progress monitoring reports, Cost reporting, daily labour force reports, weekly and monthly reports, all in a format to be acceptable to Company. (Refer to Section 12 -Subcontract Administration Procedure).

4.2.2 Company shall have the right, at any time, to undertake audits of Subcontractor and Lower Tier Subcontractors performance of the Work as well as of their quality and safety systems and furthermore to verify the application of SubcontractorS and ANY Lower Tier Subcontractors quality and safety plans. Subcontractor shall carry out remedial works required to rectify any defects identified as a result of the audit of the quality and safety plan. Subcontractor makes sure and is responsible that Company can effectively exercise its rights under this paragraph with respect to any Lower Tier Subcontractor

4.2.3 Subcontractor shall provide "as built" drawings and project record books, all in the English language, to facilitate operation and maintenance of the Plant upon mechanical completion of the respective parts of the Plant.

4.2.4 Subcontractor shall inform Company immediately if the information received from Company is not sufficient to execute the Subcontract in accordance with the Subcontract and normal construction practice.

4.3 Subcontractor and its Personnel

4.3.1 Prior to the commencement of the Work, Subcontractor shall submit to Company, a Home Office and Work Site organisation chart for the Work including all personnel down to first line supervision. Key personnel as designated in the chart shall be assigned to the Work and shall not be removed or reassigned without Company's prior written permission.

4.3.2 Subcontractor shall at his own cost replace personnel who in Company's opinion conduct themselves in an improper manner or do not comply with safety or other regulations at Company's Work Site or are unsuitable to perform their tasks. At the request of Subcontractor, Company shall provide its reasons for requesting any such replacement of personnel.

4.3.3 Subcontractor shall arrange for mobilisation of his personnel to Company's Work Site including arranging for the issue of all visas, licenses, work permits, residence permits, certificates of medical fitness, etc. Company will with Owner's agreement, if requested, provide assistance to Subcontractor in this respect by writing (a) letter(s) to the Government Departments responsible for these matters, which, however, shall be communicated via Subcontractor.

Subcontractor shall arrange for the demobilisation of his personnel, and their return to their point of recruitment after their completion of assignment to Company's Work Site.

4.3.4 Subcontractor shall ensure that all his personnel when being at or adjacent to Company’S Work Site shall have identification badges, which shall be worn at all times. Such badges shall identify both Subcontractor and the employee.

4.3.5 Subcontractor shall be responsible for and shall provide at his sole cost and expense all necessary accommodation, messing, first aid and other facilities for his personnel at Company's Work Site and all transportation for his personnel between their points of origin and Company's Work Site, if applicable, and all transportation as may be required for performance of the Work in and around Company's Work Site.

4.3.6 Subcontractor shall ensure that all of his personnel who have to perform their duties at Company's Work Site are healthy, fit and suitable in every respect to perform the Work, and shall ensure that all of his personnel undergo any medical examinations where required. Subcontractor shall supply Company with relevant details of medical and/or health records for his personnel if required to do so by Company.

4.3.7 Subcontractor shall ensure that all of his personnel understand safety-related notices, verbal instructions, and public announcements.

4.4.8 Subcontractor shall co-operate and keep harmonious relations with all other Subcontractors at the Work Site.

4.3.9 Upon the outbreak of any strike involving any of Subcontractor's or Low Tier Subcontractors' personnel engaged in the Work, Subcontractor shall forthwith give details thereof to Company together with details of the steps being taken to settle the strike.

4.3.10 Subcontractor shall immediately inform Company of any injury to (a) person(s) and loss or damage to any property provided that it is not insignificant, at or about Company's Work Site and report such occurrences to the competent authority whenever the applicable legal provisions require such a report.

4.3.11 Subcontractor shall, in his dealings with labour for the time such labour is to be or is being engaged on or in connection with the Work, have due regard to all locally recognised festivals and religious and other relevant customs. Subcontractor shall also observe all relevant local customs. Subcontractor and his employees shall respect all local cultural values.

4.3.12 Subcontractor shall not import, sell, give, barter or otherwise dispose of any alcoholic beverages or other prohibited drug or item, or permit or suffer any such importation, sale, gift, barter or disposal or any brewing or manufacture of the same by personnel of Subcontractor or by SubcontractorS or their agents or personnel.

4.3.13 Subcontractor shall ensure that the provisions of this article are implemented in any Subcontract with Lower Tier Subcontractors and/or Suppliers.

4.4 Temporary Facilities

Subcontractor shall refer to Section 5 -Scope of Work

4.5 Construction Equipment

Subcontractor shall refer to Section 5 -Scope of Work

5. Time

5.1 Progress/Schedule of Subcontractors Work

5.1.1 The Completion Date as of the date of this Subcontract is as set forth in the Form of Agreement.

5.1.2 Milestone Dates are the agreed dates by which specified portions of the Work must be completed. The Milestone Dates are set forth in the Form of Agreement

The Completion Date and Milestone Dates shall only be adjusted in the following instances:

1. When necessary to reflect any actual delay in Subcontractor's performance of the Work occasioned by Force Majeure; or
2. When necessary to reflect any actual delay in Subcontractor’S performance of the Work attributable to any failure by Company to perform any of its obligations under this Subcontract; or
3. When so stipulated in a Variation Order issued to Subcontractor by Company.
4. Any adjustment of the Completion Date and Milestone Dates shall be evidenced in writing and signed by both Company and Subcontractor, by means of a Subcontract Amendment.

5.1.3 Should Subcontractor fail to execute the Work with diligence and dispatch in such a way as to ensure that the Completion Date and Milestone Dates are met, such failure shall, unless otherwise excused pursuant to this Subcontract, constitute a substantial breach of this Subcontract.

5.2 Working Hours

5.2.1 Subcontractor shall comply with the working hours agreed for the execution of the Work. Deviations from these working hours require prior approval by Company.

5.2.2 Subcontractor shall be responsible for obtaining permission to work overtime or irregular work pattern from the appropriate authority

5.2.3 In the event that Company deems it necessary that Subcontractor works overtime and/or works during holidays in order to safeguard a Milestone Date and/or the Completion Date, due to Subcontractor caused delay, Subcontractor shall put this into effect immediately without extra charge to Company.

5.2.4 In the event that a Milestone Date or the Completion Date is jeopardised for reasons attributable to Company and Company deems it necessary that Subcontractor works overtime and/or works during holidays, Company shall pay to Subcontractor the net extra cost of the premium payments of such overtime.

5.3 STAND BY TIME

5.3.1 Stand-by time resulting from interruptions of the execution of the Work caused by occurrences such as fire alarm, gas alarm, interruption in the supply of electric power, shall be dealt with as follows:

1. Costs associated with interruptions lasting one hour or less shall be absorbed by Subcontractor.
2. For interruptions that appear that they will be in excess of one hour's duration Subcontractor shall re-deploy its personnel and Construction Equipment, after consultation with Company.

Subcontractor shall immediately notify stand by time in writing to Company.

5.3.2 Stand-by time caused by Force Majeure and stand-by time requested by authorities shall be for Subcontractor's account. (Refer to Article 16.4 - “Force Majeure).

5.3.3 Reimbursement to Subcontractor shall be as identified in Section 8 Description of Units and Method of Measurement.

5.4 DELAYS

5.4.1 Subcontractor shall perform the Work in accordance with Section 7 of the Subcontract Package - Key Date Schedule or as defined in the Form of Agreement.

5.4.2 Subcontractor shall in accordance with the requirements set out Section 12 -Subcontract Administration Procedure, and if not submitted before Subcontract award, submit a detailed schedule for the Work for approval to Company. Upon approval by Company, the detailed schedule shall be deemed to be incorporated into the Subcontract and shall thereafter be the basis for SubcontractorS scheduling and progress reporting.

5.4.3 If in Subcontractor’s opinion the Work cannot be performed according to the Key Date Schedule, owing to circumstances for which Company is to indemnify him, the provisions in Article 14.1 (Changes to the Work) shall apply accordingly. A request for a Variation Order must be presented no later than 14 Days after such notification.

5.4.4 If in Subcontractor’S opinion the Work cannot be performed according to the Key Date Schedule, by reasons for which Subcontractor is responsible, he shall within 14 Days after notification to Company communicate:

1. the cause of the delay,
2. its estimated effect on the Subcontract Completion Date and other parts of the Work, and
3. the measures, which Subcontractor considers appropriate to avoid, recover or limit the delay.

Company shall without undue delay notify Subcontractor of its view of the information provided by Subcontractor in accordance with this Article 5.4.4 a), b) and c). Such notification shall not release Subcontractor from any of his obligations under this Subcontract.

5.4.5 If measures proposed or implemented by Subcontractor are insufficient to avoid or recover the delay, then Company may require Subcontractor to take the measures Company considers necessary to avoid or recover the delay. If Subcontractor maintains that he has no obligations to implement the measures required by Company, Subcontractor shall if instructed by Company implement such measures. In such event the provisions of Article 14.1 (Changes to the Work) shall apply.

5.5 Possession Prior to Completion

5.5.1 Company and/or Owner shall have the right to take possession of and use for any purpose any part of the Work at any time prior to the issue of the Completion Certificate (Final Acceptance). Company and/or Owner will notify Subcontractor of Company’s and/or Owner’s intention to take possession of and use said part of the Work. Such taking possession or use shall not be deemed to be in any way an acknowledgement of completion or a notice of Final Acceptance of the Work and shall not limit or waive Subcontractor’S obligations as set forth in this Subcontract.

5.5.2 If such taking possession or use affects Subcontractor’S costs or the time required for completing the Work, Company and/or Owner will initiate a Variation Order pursuant to Article 14.1 (Changes to the Work) of these General Terms and Conditions of Subcontract, making any required adjustment to the Scheduled Completion Date, Critical Milestone Dates, or the compensation due to Subcontractor.

5.5.3 However, should such taking possession or use result from Subcontractor’S failure to prosecute the Work according to the approved Schedule, Subcontractor will not, unless specifically provided otherwise herein, be entitled to compensation for said costs or entitled to an adjustment in the Schedule Completion Date or Critical Milestone Dates.

5.6 Completion and Acceptance of the Work

Completion of Work shall occur if all Work has been completed including completion dates for any punch list items, and all such Work shall have been performed in accordance with the stipulation of the Subcontract.

As a precondition of Completion of Work, Subcontractor shall provide evidence that all applicable tests and inspections have been carried out in accordance with the Subcontract including the approved Quality Plan and that the results comply with specified requirements.

Subcontractor shall refer to Section 11 Mechanical Completion and Turnover Requirements.

6. Material and Ownership/Title

6.1. Free Issue Materials

6.1.1 Materials supplied by Company "free issue" shall be supplied at the Work Site, either on carrier or at the Company warehouse or Company yard, unless specifically stated otherwise in this Subcontract.

6.1.2 In those cases where Company supplies Materials on carrier, Subcontractor shall have available the required construction equipment and manpower for unloading to avoid waiting time of the carrier.

On receipt of Materials supplied by Company Subcontractor shall carry out a proper visual examination to check that the Materials are free from defects or deficiency and in accordance with the applicable specification.

Materials supplied by Company which show defects, or which are not in accordance with the applicable specification, or which are not properly identified shall not be used. In such case Subcontractor shall immediately notify Company.

After acceptance of the Materials, Subcontractor retains responsibility for the care, custody and control of said materials until transfer to Company upon Acceptance of the Work.

6.1.3 Unless specifically agreed to by Company, Subcontractor shall not have the right to make use of Materials other than for the purpose of fulfilling this Subcontract.

Materials supplied by Company "free issue" and found to be surplus upon Acceptance of the Work or earlier shall be returned to Company properly identified and accompanied by relevant documents such as materials certificates.

Scrap from Materials supplied by Company "free issue" shall be stored and disposed of in accordance with the instructions by Company.

6.2 Subcontractor Supplied Materials

6.2.1 Subcontractor shall supply all materials to complete the works under this Subcontract except where specifically mentioned otherwise in the Subcontract. (Subcontractor shall refer to Section 5 - Scope of the Work). 20.2  Subcontractor shall receive, unload, store and handle all Materials in relation to his scope of Work.

6.2.2 Subcontractor shall insert such provisions in his Lower Tier SubcontractS as will cause this to happen.

6.2.3 Materials shall be stored, preserved, maintained and erected or installed under conditions such that they are adequately protected from deterioration caused by ingress of moisture, dust or extremes of temperature, and that they are protected from accidental or wilful damage.

6.2.4 Materials supplied by Subcontractor shall be new and unused, of first class design and workmanship, within the specifications or if no such specifications exist, in all respects fit for the use intended. Subcontractor shall obtain optimum guarantees from the Supplier of Materials.

6.2.5 Materials supplied by Subcontractor shall be subject to Company's approval in respect of sources of supply. In case Subcontractor fails to comply with this requirement Company may instruct Subcontractor to remove the Materials from the Work Site, whether or not they have been installed, and hold Subcontractor liable for the costs of replacing such Materials and for making good all other loss or damage to the Work, including loss or damage to other SubcontractorS.

6.2.6 Materials supplied by Subcontractor and found to be surplus upon Acceptance of the Work or earlier shall be removed from the Work Site by Subcontractor after consultation with and without any cost to Company.

6.3 Ownership/Title

Without prejudice to Subcontractor's obligations pursuant to Article 6.2 (Subcontractor Supplied Materials), title to Materials passes to Company at whichever is the earlier of,

1. when the Materials are identifiable as being produced for the purpose of incorporation in the Plant, whether completed or in the process of construction, or
2. when Subcontractor receives payment in respect of such Materials, or
3. arrival at Company's Work Site.

Subcontractor shall insert such provisions in his Lower Tier SubcontractS as will cause this to happen.

Whenever, prior to arrival at Company's Work Site, title to Materials shall pass to Company, Subcontractor shall, so far as practicable, arrange for the Materials to be marked as Company's property and ensure that they are stored and handled separately from other materials in Subcontractor's possession.

7. Assignment and Subcontracting

7.1 Assignment

7.1.1 Company may assign its rights and obligations under the Subcontract to a Third Party, provided that Company can demonstrate that the assignee has the financial strength required to fulfil Company's obligations under the Subcontract.

7.1.2 Subcontractor may not assign or mortgage the Subcontract or a part thereof of or otherwise dispose of in any manner an interest in the Subcontract to a Third Party without Company's prior approval.

Such approval by Company shall not relieve Subcontractor from any of his responsibilities, obligations or liabilities under the Subcontract and Subcontractor shall bear the entire responsibility for SubcontractorS and their employees in the same way as for its own employees. Subcontractor shall ensure that its obligations hereunder in so far as necessary or practicable to secure proper and timely execution of the Work, shall be repeated as obligations on SubcontractorS in all assignments or SubcontractS and that relevant information and instructions from Company shall be passed on to SubcontractorS.

7.1.3 No Subcontract shall bind or purport to bind Company and each assignment or Subcontract shall provide for the possibility of its immediate termination in the event of termination or cancellation of the Subcontract.

7.2 Subcontracting

7.2.1 Subcontractor shall not enter into Subcontracts for parts of the Work without Company's prior consent, which shall not be unreasonably withheld. Company shall notify Subcontractor of its decision no later than 14 calendar days after receipt of Subcontractor's request.

Company's consent to Subcontracting shall:

1. Not relieve Subcontractor from any obligations or liabilities under the Subcontract and Subcontractor shall be responsible for the acts or omissions of any Subcontractor and his employees and agents as though they were the acts and omissions of Subcontractor. This applies in respect of all Lower TierSubcontractorS, whether originally nominated by Company or not.
2. Not obligate Company to pay any monies whatsoever other than the Subcontract Price.
3. Be conditional on the inclusion in every Subcontract issued by Subcontractor in connection with this Subcontract, a provision prohibiting any further Subcontracting of any portion of the Work by the Lower Tier Subcontractor unless the Lower Tier Subcontractor first obtains the written approval of Subcontractor. Subcontractor shall not give such approval without first obtaining the written approval of Company.

7.2.2 Subcontractor shall be fully responsible to Company for the acts and omissions of all its Lower Tier Subcontractors, at whatever tier, and their personnel. Subcontractor shall manage, schedule and co-ordinate the Work of all its Lower Tier Subcontractors, at whatever tier, so as to meet the Scheduled Completion Date and Critical Milestone Dates.

7.2.3 Nothing in this Subcontract shall create any contractual relation between Company and any Lower Tier Subcontractor. Company's approval to Subcontract any portion of the Work and Company's non-objection to Subcontractor's Lower Tier Subcontractor selection shall not relieve Subcontractor of any of its obligations under this Subcontract.

7.2.4 When requested by Company, Subcontractor shall, prior to entering into the contract with its Lower Tier Subcontractor(s), provide copies of all documents relating to such Subcontract(s) , provided, however, that Company shall not be entitled to provisions regarding price and payment conditions other than in such events where Company shall compensate the Subcontract on a reimbursable basis.

7.2.5 In order to secure the proper continuation and timely completion of the Work in the event of default or a forfeiture by Subcontractor, Subcontractor shall include in all of the Subcontracts (that are in any way related to the Work) with its Lower Tier Subcontractors, suppliers and other parties, a provision similar to the following:

"COMPANY/Owner shall have the right to take over this agreement on the same terms and financial conditions as are applicable to Subcontractor, in the event of termination for reason of default by or forfeiture of Subcontractor, provided that Company/Owner so request by written notice within ten (10) working days after the date of such termination and provided further that Company/Owner undertake to fulfil all payments due as of such take over date".

7.2.6 Nothing in the Subcontract shall entitle Subcontractor, or any of SubcontractorS Personnel or agents to represent to any Third Party that they are agents, representatives or employees of Company and/or Owner.

8. Quality

8.1 Quality Management Requirements

8.1.1 If not approved prior to the award of this Subcontract, Subcontractor shall, within thirty (30) working days of the Effective Date of the Subcontract, submit a written Quality Plan to Company. Subcontractor will not be allowed to commence any Work until such a Project Quality Plan has been approved by Company. Company reserves the right to stop the Work if any of the agreed or obligatory measures are not observed.

8.1.2 Subcontractor Representative is responsible for the Quality performance of Work at the Work Site. Within seven (7) working days of the Effective Date of this Subcontract Subcontractor shall advise Company in writing of its representative who will be the focal point for matters relating to Quality and to whom communications on such matters shall be addressed.

8.1.3 Subcontractor shall perform all quality management and inspection activities required for the Work all in accordance with the Subcontract and Section 10 Quality Assurance / Quality control requirements.

8.2 Examination and Inspection

8.2.1 Company shall have access to and shall have the right to inspect the Materials and the Work or any part thereof at any time and place, before, during and after manufacture or erection.

8.2.2 Subcontractor shall give reasonable notice to Company of its readiness for any required inspection. Such notice shall be sufficiently in advance of the assembly or closure of any part of the Work, which might render it inaccessible for such inspection. In addition, Subcontractor shall provide sufficient, safe and proper facilities for access and inspection by Company and/or Owner

8.2.3 Company shall be entitled to reject the Materials or the Work or any part thereof failing to meet the requirements of the Subcontract. All resulting costs for replacement of Materials or Work including dismantling, rework, reinstallation and restoration shall be for Subcontractor's account.

8.2.4 Company shall have the right to order, at any time, a re-inspection involving the dismantling where necessary, of any part of the Work. In the event that the parts of the Work conform to the Subcontract any costs of re-inspection and restoration of the Work shall be borne by Company. In the event that the parts of the Work do not conform to the Subcontract, such costs shall be borne by Subcontractor, unless Subcontractor proves that defects are caused by another Subcontractor of Company.

8.2.5 Failure to inspect by Company shall not relieve Subcontractor of any of its obligations, responsibilities and/or liabilities under the Subcontract, nor shall it be interpreted in any way to imply acceptance thereof by Company or the waiving of Company's guarantee rights.

8.2.6 Subcontractor shall expedite Materials and Work furnished by its Suppliers and Lower Tier Subcontractors to the extent necessary to safeguard any Milestone Date and the Completion Date.

8.2.7 Company shall have the right at any time to request un-priced copies of purchase orders issued by Subcontractor to its Suppliers or Lower Tier Subcontractors, for materials and or services to be supplied by Subcontractor for the execution of the Work.

8.2.8 Materials and work furnished by Subcontractor's Suppliers and Lower Tier Subcontractors shall be subject to expediting by Company. Expediting or failure to expedite by Company shall not relieve Subcontractor of any of its obligations, responsibilities and/or liabilities under the Subcontract.

8.2.9 Subcontractor shall carry out all tests required, for the performance of the Work. When specifically required these test shall be carried out in the presence of Company and/or Owner and at times to be agreed by Company. Cost for testing shall be for Subcontractor's account, unless expressly stated otherwise.

8.2.10 For testing purposes Subcontractor shall at its own expense provide, maintain and remove any temporary installation, any temporary utility system including the connections to the points of supply, and any test medium required to carry out these tests.

8.2.11 Subcontractor will give the relevant authorities and/or certifying agencies all the information and support needed to execute the verification, and inspection work.

8.3. Quality Audits

Company reserves the right to carry out audits, surveillance and/or inspection of the functioning of Subcontractor's QA/QC Program and implementation of the QA/QC Program. Subcontractor has the obligation to ensure that the requirements of this Subcontract are met.

As part of this audit, surveillance and/or inspection, Company shall witness specific inspections carried out by Subcontractor.

Verifications carried out by Company during audits, surveillance and/or inspection of Subcontractor's QA/QC system do not in any way relieve Subcontractor of his obligation and liabilities under the Subcontract.

9. Environmental, Health and Safelty (EH&S)

9.1 General

Subcontractor shall perform all EH&S activities for the Work in accordance with the Subcontract specifically section 4 "Environmental, Health and Safety Requirements".

9.2 Emergency Medical Services

Refer to section 4 of the Subcontract package.

9.3 Housekeeping

Refer to section 4 of the Subcontract package.

9.4. Site Preservation

Refer to section 4 of the Subcontract package.

9.5 Evacuation/Emergency Situation

Refer to section 4 of the Subcontract package.

9.6 Reporting and Notification

Refer to section 4 of the Subcontract package.

10 Subcontract Price and Payment

10.1 Subcontract Price

Company shall in accordance with the provisions stated in this Article and elsewhere in the Subcontract pay to Subcontractor the Subcontract Price as full compensation for carrying out and completing the Work in accordance with the Subcontract. Payment shall be deemed to take place when Company transfers funds to SubcontractorS nominated bank.

10.2 Invoicing and Payment

10.2.1 Unless otherwise agreed the following provisions shall apply to invoicing:

1. The Subcontract Price shall be payable to Subcontractor upon SubcontractorS achievement of the progress payment milestones in accordance with the progress payment milestone schedule of the Subcontract.
2. In respect of Variation Orders containing specific provisions covering invoicing, Subcontractor shall invoice in accordance with such provisions (refer to Article 14.1.5  Issue of Variation Orders ).
3. Subcontractor shall prepare and submit an invoice in accordance with the provisions of this article. Such invoices shall be accompanied by all documentation necessary to substantiate the invoiced amount.

10.2.2 Unless otherwise agreed Company shall, within 45 Calendar Days, and in accordance with the provisions of Article 10.2 (Invoicing and Payment), pay or arrange for payment of the amount due to Subcontractor. Unless otherwise provided for in the Subcontract, the following deductions may be made from the payment:

1. Any previous payments on account to Subcontractor to such extent as these payments directly cover Work covered by the invoice,
2. Those parts of the invoiced amount which Company, as soon as possible but at the latest at the ultimate payment date, specifically notifies Subcontractor as being insufficiently documented, substantiated or which are otherwise disputed,
3. All amounts due to Company by Subcontractor.

10.2.3 Prior to the issue of the Completion Certificate and final progress payment certificate, Subcontractor shall submit his proposal for the final account. The proposal shall contain a breakdown of the total compensation for the Work and all requests for payment to be made by Subcontractor, less any other amounts due to Company. The proposal shall contain documentation relating to each item included in the breakdown.

The final account shall be conclusive evidence as to the amount payable by Company under the Subcontract and no requests for payment which are not included in the proposal for final account will be considered by Company.

10.2.4 Company shall not be obliged to make the final payment to Subcontractor until Subcontractor has delivered to Company a release of liens form satisfactory to Company stating that Subcontractor has fully performed under the Subcontract and that all his claims in respect of the Subcontract are satisfied upon the making of such final payment,  that no property of Company or property used in connection with the Work is subject to any unsatisfied lien or claim as a result of the performance of the Work, and that all rights of lien against Company's property in connection with the Work are released.

10.2.5 Company shall retain 10% of the amount of all approved invoices for progress and/or down payments until the expiry of the Guarantee period. Subcontractor may submit an on first demand bank guarantee.

Retention monies shall be released at the end of the guarantee period for the Work. However Company may release the retention monies, if Subcontractor provides a bank guarantee in a format acceptable to Company, and the said bank guarantee is for the same value of the retention monies, and valid for the duration of the guarantee period.

Payment to Subcontractor shall not be interpreted as an acceptance of the Work or any part thereof and shall not preclude Company’S right of disputing any of the items involved.

10.2.6 Final progress payment shall not become due until Subcontractor has delivered to Company a satisfactory form of affidavit providing a complete release of all liens arising, or that might arise, out of the Subcontract and including a release and indemnification from all debts, claims, demands, damages, actions and causes of action, whatsoever, arising under, or in any way pertaining to the Subcontract.

10.2.7 The release of liens shall accompany Subcontractor's last invoice for progress payment, shall make proper reference to said invoice and shall clearly state that said invoice represents, with the exception of retention monies, the last invoice to be submitted to Company in connection with the Subcontract

10.3 TAXES/AUDITING

10.3.1 To the extent that Subcontractor shall perform part of the Work on a reimbursable basis, Company has the right to carry out audits at Subcontractor's and Lower Tier Subcontractors' premises of the documentation in respect of such costs incurred.

10.3.2 Company may carry out such audits up to 3 years after the Completion Certificate is issued. If the outcome of such audit demonstrates that Subcontractor's charges are incorrect, a new settlement shall be prepared incorporating corrected figures whether or not this is in the favour of Subcontractor, irrespective of whether the final account has been settled.

10.3.3 Subcontractor shall keep and cause its Lower Tier Subcontractors to keep, in accordance with generally accepted accounting practices, books, records and accounts pertaining to performance of the Work, including Subcontractor's and Lower Tier Subcontractor's Personnel records, correspondence, instructions, plans, drawings, receipts, and such other documentation and related systems and controls necessary for an accurate audit and verification of reimbursable costs. Subcontractor shall preserve, and shall cause its Lower Tier Subcontractors to preserve said documents during the performance of the Work and for a period of three (3) years after issue of the Completion Certificate.

10.3.4 Subcontractor shall permit and cause its Lower TierSubcontractorS to permit at reasonable times during the performance of the Work and for a period of three (3) years after issue of the Completion Certificate,  representatives of Company and Owner to interview SubcontractorS and Lower TierSubcontractorS' personnel, review SubcontractorS and Lower TierSubcontractorS' accounting and cost control systems and inspection books, records, accounts and other documents and make copies thereof, as necessary to audit and verify the completeness and accuracy of reimbursable costs contained in invoices submitted by Subcontractor, or for any reasonable purpose.

10.3.5 Subcontractor shall keep available all necessary records and reports to make all payments, collections etc. and otherwise do anything to fully comply with the local laws and regulations and further so as to fully relieve and protect Company from any and all responsibility or liability therefore or in regard thereto

10.4 Bank Guarantee

Prior to the Effective Date of the Subcontract, Subcontractor shall provide, at his own cost, a performance bond guarantee from a first class international bank. The bank shall be acceptable by Company. The guarantees shall be in the amount and form as set out in the Form of Agreement.

The performance bank guarantee shall be valid for its full amount as defined in the Form of Agreement.

10.5 Parent Company Guarantee

Should Subcontractor be a subsidiary or affiliate of, or is owned or controlled in part or in whole by another company and/or companies, Subcontractor shall provide an unconditional and irrevocable parent company guarantee, from its parent company guaranteeing Subcontractor's full and complete performance of the Work and all obligations of Subcontractor under this Subcontract.

Such ultimate parent company guarantee shall be provided within ten (10) working days after Subcontract award and prior to the submittal of Subcontractor's first invoice

10.6 Company's right to withhold payment

10.6.1 Company may at his discretion withhold any amounts due to Subcontractor in whole or in part, without the invoice value attracting interest for deferring payment, and/or offset outstanding amounts that it claims from Subcontractor at any time against outstanding amounts due to Subcontractor by Company, if:

1. any claims are filed against Subcontractor by Owner and/or Company or third parties, or if reasonable evidence indicates the probability of filing any such claims, or if Company  is required to withhold amounts by any Authority; or
2. Subcontractor is in default of any obligation under this Subcontract; or
3. there is reasonable doubt that this Subcontract cannot be completed within the time specified or for the balance of the Subcontract Price then unpaid; or
4. any certification or documentation required by this Subcontract is outstanding, or
5. it appears that Subcontractor and/or his Lower Tier SubcontractorSshave not fulfilled any of their obligations under applicable law and/or social institutions, including but not limited to payment of social premiums.

Until Subcontractor has taken satisfactory remedial action, Company reserves the right to withhold payments.

10.6.2 If claims filed against Subcontractor, connected with performance under this Subcontract are not promptly settled by Subcontractor after receipt of written notice from Company to do so, Company may settle such claims and deduct all costs in connection with such settlement from withheld payments or other monies due, or which may become due, to Subcontractor.

Notwithstanding the above, Subcontractor, remains fully responsible at law for all claims from governmental and/or social institutions for himself and his Lower Tier Subcontractors.

Notwithstanding the above, Subcontractor shall nevertheless continue with the proper and timely execution of the Work.

10.7 Backcharges

If Subcontractor, after having been notified in writing by Company, that the work performed by Subcontractor does not conform to the requirements of the Subcontract, and Subcontractor fails to perform the requested remedial WorkS within the limits specified by Company,  then Company may appoint a third party to remedy the Work as required. Company will backcharge Subcontractor for the cost of such remedial work and will levy a handling charge of fifteen percent (15%).

Backcharge at cost plus a 15 % handling fee will in any event be levied on Subcontractor:

1. When others incur expenses due to the non-adherence of Subcontractor to safety rules.
2. When others incur expenses due to damage to their Work caused by Subcontractor.
3. When free issue Materials, which have been issued to Subcontractor, have become lost, damaged or used otherwise than their intended purpose, and have to be replaced.

Company shall separately invoice or deduct from payments due to Subcontractor the costs as provided herein. The remedial work carried out for Subcontractor shall not relieve Subcontractor of any of its responsibilities under this Subcontract.

11. Notices, Waiver, Secrecy, Confidential, Information, Patents and Publicity Releases.

11.1 Notices

All notices or communications required, or duly authorised to be given under this Subcontract shall be sufficiently given and sent by prepaid registered mail (quickest possible method and return receipt requested) addressed to Company’S Representative at the Work Site, or at such other address as may be designated in writing hereafter by the parties or for the receipt of such notices or communications.

Where notices or communications are given or made orally, such notices or communications shall be confirmed in writing within five (5) calendar days; if notices or communications are given or made orally at a Work Site meeting but recorded in authorised minutes of meeting such notices or communications shall have effect as if it had been given in writing.

11.2 Waover

A waiver on the part of Company or Subcontractor of any term, provision or condition of the Subcontract shall not constitute a precedent nor bind either party hereto to a waiver of any succeeding breach of the same or any other term, provision or condition of the Subcontract.

11.3 Secrecy

All technical and commercial information exchanged between the parties shall be treated as confidential and shall not be disclosed to a Third Party without the other party's permission, unless such information:

1. may be disclosed to a Third Party in accordance with Article 10.3, or
2. is already known to the party in question at the time the information was received, or
3. is or becomes part of the public domain other than through a fault caused by Company or Subcontractor, or
4. is rightfully received from a Third Party without an obligation of confidentiality.

Each of the parties may however use or disclose confidential information to a Third Party (including a competent court or tribunal) to the extent necessary for engineering,. procurement, construction, installation, operation, maintenance, modification and repair of the Plant. In such case where either party discloses confidential information to a Third Party, such party shall ensure that the Third Party signs a confidentiality agreement in accordance with this Article 11.3.

Subcontractor shall not publish information concerning the Work or the Subcontract without Company's prior approval, which shall not be unreasonably withheld.

Subcontractor shall not take any photographs, videos etc. at the site without Company’S prior written approval.

11.4 Intellectual Property

11.4.1 Copyright and other intellectual property rights in all documents and computer programs provided by Company to Subcontractor or which are developed mainly on the basis of such documents and computer programs, shall be the property of Company. The same applies to all copies of the aforementioned documents and computer programs.

Such documents, computer programs or copies shall not be used by Subcontractor other than for the purpose of the Work. Such documents, computer programs or copies shall be returned to Company immediately at the expiry of the Subcontract unless otherwise agreed between Company and Subcontractor in writing.

11.4.2 Inventions made by Subcontractor during the performance of the Work and all intellectual property rights (including rights relating to know-how) concerning these inventions, shall be owned by Subcontractor insofar as such inventions are not mainly based on technical information which Subcontractor has received from Owner/Company, in which case such inventions and the before mentioned intellectual property rights shall be owned by Owner/Company.

11.4.3 With respect to know-how and other technical information disclosed to Company under the Subcontract as well as all patents, inventions, documents, computer programs and all other intellectual property rights which concerns the Plant and are owned by Subcontractor or by a Third Party from whom Subcontractor has received the right to grant licenses thereunder,  Subcontractor hereby grants to Owner/Company an irrevocable, world-wide, royalty-free, non-exclusive license (without the right to sub-license) for engineering, procurement, construction, installation, operation (including the right for Owner/Company to sell and/or otherwise utilise all products produced by the Plant world-wide in its entire lifetime), maintenance, modification and repair of the Plant. Nothing contained herein shall be construed as transferring ownership of any patent, utility model, trademark, design, copyright, know-how or other intellectual property rights from Subcontractor to Company.

11.4.4 In the event that Subcontractor develops or creates any other documents or computer programs in connection with the Work other than those referred to in Articles 11.4.1 and 11.4.2, the intellectual property rights therein shall be owned by Company.

11.4.5 The parties shall ensure that all those who have access to such documents, computer programs and copies thereof shall comply with the provisions of these General Terms and Conditions of Subcontract.

11.4.6 Title to the documentation (analysis, drawings, documents, data-tapes etc.), operating manuals etc. to be provided by Subcontractor in accordance with the Subcontract, shall pass to Company progressively as the Work is performed, however prior to the issue of the Takeover Certificate.

11.4.7 Subcontractor shall indemnify Company from and against all costs whatsoever arising as a result of Subcontractor's failure to comply with the provisions of Article 11.4.

11.5 Publicity

Subcontractor shall not make any reference to the Subcontract in advertisements and/or publications nor shall Subcontractor use Company's or Owner's name in respect of any publicity, either written, verbal or in any other manner without Company's and/or Owner's prior written consent.

12. Guarantiees and Liabilities

12.1 Guarantees and Professional Liabilities

12.1.1 Subcontractor guarantees that the Materials and the Work are fit for the purpose intended for this Subcontract. The Guarantee Period for the Plant is defined as being twelve (12) months after the date that the Plant in which the Materials and Work have been incorporated is placed in operation, but not later than 18 months after Company has obtained Mechanical Completion from the Owner unless specified elsewhere in this Subcontract. (refer to the Special Conditions of Subcontract).

12.1.2 If Subcontractor has performed guarantee work during the Guarantee Period, then he is liable for guaranteeing those parts of the work covered by the repair. This liability applies for 12 months from the date of completion of the repair, unless the remaining part of the relevant Guarantee Period is longer.

12.1.3 Company shall also have the right to enforce the guarantees given by Lower Tier Subcontractors. Where such guarantees are more beneficial to Company than Subcontractor's guarantee pursuant to this Article, Subcontractor shall, when requested by Company assign to Company the rights necessary to give effect to this Article 12.1.3.

12.1.4 If the Plant has a defect (non-conformity of any kind compared to the requirements of the Subcontract) when delivered to Company, whether stated in the Takeover Certificate or not, or if a defect arises during the Guarantee Period, Subcontractor is responsible for the defect in accordance with the provisions of this Article.

12.1.5 Subcontractor is, however, liable for a defect only if Company has given him a notice containing a description of the defect, within reasonable time after having discovered the defect. Such notice must, in any case, be given at the latest before the expiry of the Guarantee Period, provided that the defect was discovered by Company, or should have reasonably been discovered by then. If the notice concerns defects in guarantee work, it must have been given before the expiry of the period set forth in above.

12.1.6 Subcontractor shall have no liability in respect, of defects arising after the expiry of the Guarantee Period or any prolonged Guarantee Period set forth above.

12.1.7 When Subcontractor is liable for a defect, he shall rectify it as soon as possible, but at a time convenient to Company. All such rectification work shall be at Subcontractor's own cost including all direct consequences to the Plant. If, however, the rectification work is postponed at Owner's request and as a result the magnitude of the defect has increased or other parts of the Plant have been affected as a result of Owner continuing to operate the Plant whilst it contains the defect, then Owner shall be liable for those repair costs which are additional compared with a timely repair. Subcontractor shall notify Owner/Company without undue delay after receipt of Company's notice to postpone repair works if he considers that additional costs are likely to be incurred as a result of such postponement.

12.1.8 Prior to commencing any rectification work, Subcontractor shall notify Company of which measures he intends to take to make good the defect. Company shall notify Subcontractor of its views on the rectification plans without undue delay.

12.1.9 If Subcontractor is unable or unwilling to rectify a defect within reasonable time after Company's notification, Company shall be entitled to rectify the defect itself or engage a Third Party to do so and Subcontractor shall pay all costs incurred by Company in carrying out such rectification work.

12.1.10 If Company on reasonable grounds refuses to allow Subcontractor to perform the rectification work, then Company shall be entitled to rectify the defect itself or engage a Third Party to do so and to recover the cost of such rectification Work from the Subcontractor. In these circumstances SubcontractorS liability for Company's costs shall be limited to the costs Subcontractor would have incurred if he had carried out the rectification works himself.

12.2 Liability of Subcontractor for Loss/Damage and Injuries

12.2.1  Subcontractor shall be liable for and shall hold Company, Owner and their respective personnel harmless from and indemnified against all loss of or damage to:

1. The Works under this Subcontract;
2. Any item of Subcontractor supplied materials, Temporary Facilities and Construction Equipment whether at the Work Site, or in the course of being transported to the Work Site or elsewhere; and
3. Any item of Free-issue materials as from the moment of care custody and control by Subcontractor as stipulated in the Subcontract.

arising prior to acceptance and after acceptance of the Work, due to any fault, omission, negligence of Subcontractor and/or any Lower Tier Subcontractor and/or their employees, servants, agents and/or representatives, or arising out of or in connection with the fulfilment by Subcontractor of any of its obligations under the Subcontract.

12.2.2 Subcontractor shall be liable for and shall hold Company, Owner and their respective personnel harmless from and indemnified against any and all claims, resulting from loss of or damage to property of Subcontractor or its Lower Tier Subcontractors, howsoever caused. As to damages/losses suffered by Subcontractor or Company due to the opposite party's gross negligence or wilful misconduct, the party liable for such damages/losses shall indemnify the other party therefrom.

12.2.3 Company and Subcontractor shall hold each other harmless from and indemnified against any and all claims resulting from personal injury, including disability and death, of their respective personnel, as well as for claims in respect of loss or damage to property of their respective personnel. Personnel hired by Subcontractor as agents or otherwise in connection with Work shall be considered personnel of Subcontractor. The liability of each party as stated in this clause shall be extended to any consequential loss or damage resulting from the occurrence which lead to the loss, damage or injury for which such party has assumed liability.

12.2.4 Subcontractor shall be liable for any and all claims, resulting from personal injury, including disability and death, of any third party or loss of or damage to property of any such third party. Third party includes Lower Tier Subcontractors, Suppliers, and Owner. Subcontractor shall accordingly hold harmless and indemnify any Third Party and their respective personnel from and against all of the aforesaid claims, losses, damages, costs, expenses and liabilities

12.3. Successive Liability

Applicable to the Netherlands only. Subcontractor shall refer to the Form of Agreement.

12.4. Consequential Damages

12.4.1 Subcontractor shall not be liable, except under circumstances as specified in below, for loss of time in putting the Plant or any part thereof into use, loss of anticipated profits, loss of revenues and any other consequential damages incurred by Company.

The exclusions of liability shall not apply if and to the extent the damage(s) in question are:

1. Recovered from insurance, provided that Subcontractor can demonstrate to Company that Subcontractor has used his best endeavours to recover what is recoverable under said insurance; and/or
2. Caused by gross negligence and/or wilful misconduct by Subcontractor and/or Lower Tier Subcontractors.

12.4.2 Company shall not be liable for any consequential or special damages or loss of profits, loss of production, loss of revenue or business interruption sustained by Subcontractoror his Lower Tier Subcontractors.

13. Indemnification and insurance

13.1 Indemnification

13.1.1 Company and Subcontractor shall mutually hold each other harmless and indemnified against any and all claims resulting from all personal injury or loss of life arising among respectively Company's Personnel and SubcontractorS and Lower Tier Subcontractor Personnel in connection with the Work.

13.1.2 As to claims arising out of loss or damage suffered by any Third Party in connection with the fulfilment of the Subcontract, the party causing such claims shall indemnify the other party from and against all costs associated therewith. Owner and any property of Owner and all his employees shall in this and all other respects be considered as a Third Party.

13.1.3 Subcontractor shall indemnify Owner/Company from claims resulting from infringement of patent or other industrial property rights in connection with the Work, Owner/Company's use of the Plant or sale or other disposal of the products produced in the Plant. If Owner/Company is held to be in breach of intellectual property rights owned by a Third Party for which Subcontractor shall indemnify it, Subcontractor shall at his own cost acquire such rights as are required to allow Owner/Company to continue to operate the Plant. Eventually, Subcontractor shall at his own costs make necessary modifications to the Plant required to ensure that Owner/CompanyS continued use of the Plant does not infringe the rights of the Third Party.

13.1.4 Subcontractor shall indemnify Company from any expenses incurred in connection with unemployment compensation, occupational health and safety or similar statutes in respect of SubcontractorS or SubcontractorS' Personnel, where such benefit payments are charged to Company.

13.1.5 Owner/Company and Subcontractor shall mutually hold each other harmless and indemnified against any and all claims resulting from its own indirect losses, This applies regardless of misconduct or negligence on the part of either group and, regardless of anything arising from any of the other provisions of the Subcontract. For the purposes of this Subcontract, "indirect losses" shall mean loss of profit, loss of business opportunities, loss of production and products etc.

13.1.6 Subcontractor shall use its best efforts to prevent and take all reasonable precautions to avoid pollution or contamination of the land arising out of Subcontractor's or Lower Tier Subcontractors' performance of the Work. Should there be a discharge or escape of any appreciable quantity of pollutants or contaminants during the performance of the Work, Subcontractor shall immediately notify Company and Owner.

13.1.7 Subcontractor assumes all liability for and shall defend, indemnify, and hold Owner/Company harmless, from expenses incurred in the control and removal of, any and all pollution or contamination of the land arising from spills or discharges of pollutants, contaminants, fuels, lubricants, motor oils, paints, solvents, rubbish and other like materials arising out of or in connection with SubcontractorS or Lower Tier Subcontractors performance of the work. Subcontractor shall be responsible for handling, controlling or cleaning up such pollutants or contaminants.

13.1.8 Subcontractor shall protect, defend, indemnify, and hold harmless Owner, and Company, from and against any and all claims, losses, costs, expenses, judgements, damages (including incidental or special damages), penalties and liabilities suffered by Company or Owner as a result of or arising out of or in connection with the performance of work or services as it relates to the regulation of the environment, including without limitation, those activities relating to:

1. handling, storage, or disposal of hazardous, toxic, or contaminated substances, whether above or below ground;
2. hazardous waste exposure;
3. pollution or contamination of air, land, water, property, or person;
4. leakage or spills of hazardous substances, whether above or below ground; and
5. removal and/or remediation.

13.1.9 Subcontractor shall at all times retain exclusive control over ad final approval of and shall be solely responsible for evaluation implementation, and all other decisions relating to environmental laws, rules, and regulations. Further, Subcontractor, by its execution thereof, expressly releases Company from future liabilities which may arise in connection with such decisions as they relate to environmental regulation. This indemnification shall apply whether such regulation of the environment and safety is pursuant to Federal, State, or Local laws, and in any event, including, without limitation, all respective implementing regulations as may be in effect from time to time.

13.1.10 Further, this indemnification shall apply whether

1. the activities involve workers, employees, or agents of Owner, Company, Subcontractor, or third parties;
2. the party seeking indemnification is responsible for the situation giving rise to claim; or
3. the claim results in a monetary obligation that exceeds Subcontractor's contractual commitment hereunder; provided however that Subcontractor shall not be liable for the indemnification hereunder to the extent that any such claim results from the sole or intentional misconduct of Owner or Company.

A claim shall include all costs, expenses, penalties, attorneys' fees, fines, and civil sanctions arising out of or related to such claim, including all those related to the environmental, safety, and health aspects thereof, as well as any costs related to investigation, removal, remedial action or other clean-up of hazardous, toxic, or contaminated material.

13.2.Insurances

13.2.1 Generally speaking Owner and/or Company  shall provide and maintain the insurance’s described below:

1. Project All Risks Insurance or equivalent insurance (such as Construction All Risk insurance) covering the Plant against physical loss or damage (also under transportation) in accordance with the insurance conditions.
2. Liability insurance covering Third Party liability with respect to the Work.

These insurance’s shall be effective from the start of the Work and shall not expire until the issue of the Completion Certificate.

The policies shall state that Owner, Company and SubcontractorS are co-insured, and the insurers shall waive any right of subrogation against Company and SubcontractorS or any of their employees.

13.2.2 Subcontractor shall provide and maintain as a minimum the following insurance’s:

1. Worker Compensation and other Social Insurance’s
2. Subcontractor shall provide cover for its personnel, whether engaged directly or indirectly in the Work, in accordance with the requirements of the government or governments having jurisdiction over Subcontractor's Personnel.
3. Liability Insurance
4. Subcontractor shall provide cover for its liability insurance for bodily injury, death and property damage.
5. Automobile and Motorised Equipment
6. Subcontractor shall provide cover for all automobile and motorised Construction Equipment used or furnished by Subcontractor in connection with the WORKS
7. Construction Equipment and Temporary Facilities

Subcontractor shall provide cover for all-risk Insurance coverage for loss and/or damage to Construction Equipment other than mentioned in c) above, and all Temporary Facilities owned or hired by Subcontractor.

These insurance’s shall be effective from the start of the Work and shall not expire until the issue of the Completion Certificate.

All policies shall state that the insurers waive all rights of subrogation against Owner/Company and its employees.

Subcontractor shall ensure that the insurance listed above entitles Company to make a direct claim against the insurers.

13.2.3 Subcontractor shall ensure that all insurance policies contain a clause requiring the insurer to notify Company in good time before the insurance is cancelled or the insurance ceases for any other reason.

13.2.4 Subcontractor shall provide certified copies of the policies or insurance certificates relating to all insurance's taken out in accordance with Article 13.2.2. If Subcontractor fails to take out insurance's in accordance with the provisions of this Article, Company may take out the missing insurance cover. Premiums incurred by Company in placing and maintaining such insurance shall be deducted from the Subcontract Price.

13.2.5 Each party shall give the other party notice, without undue delay, of any insurance incident for which it requires cover under the other party's insurance's, together with a description of the incident giving rise to the claim. Each party shall provide reasonable assistance to the other party in handling the claim, without cost to the other party.

13.2.6 If loss of or damage to the Plant or Materials occurs from any cause whatsoever between the start of the Work and issue of the Takeover Certificate, Subcontractor shall perform the measures necessary to ensure completion of the Work in accordance with the Subcontract. Subcontractor shall bear the costs of performing the measures stated in this Article except if and to the extent that:

1. such costs are recovered under the insurance policies maintained by Owner and/or Company, or
2. the loss or damage is not covered under Owner's and/or Company's aforementioned insurance due to circumstances for which Owner and/or Company is liable or carries the risk.

Subcontractor shall refer to the Special Conditions of Subcontract with respect to the exact insurance requirements and also to Section 12- Work Site Administration Procedure - Insurance Certificates.

14 changes

14.1 Changes to the Work

14.1.1  Right to Vary the Work

Company has the right to order such Variations to the Work, which in Company's opinion are desirable.

Variations to the Work may include an increase or decrease in the quantity, character, quality, kind or performance of the Work or any part thereof, as well as changes to the Subcontract Key Date Schedule which may have an effect on the Subcontract Price.

14.1.2 Subcontractor shall not proceed with any Variation to the Work without prior approval from Company, either by a signed Variation Order issued pursuant to Article 14.1.5 or a written request from Company authorising Subcontractor to proceed.

14.1.3 If Company requests A Variation to the Work, then Subcontractor shall submit an estimate without undue delay but no later than 5 working days after the issue of the Variation, unless Company states that such estimate is not necessary. In the event that Company requires an estimate prior to deciding whether or not to proceed with any variation work, Subcontractor shall prepare the estimate which shall be issued on a prescribed form, containing:

1. a detailed description of the variation work in question,
2. a list of all related and relevant documentation (drawings, specifications or other documents) and correspondence,
3. the effect, if any, on the Subcontract Schedule including a detailed schedule for the execution of the variation work showing the required resources,
4. the effect, if any, on the Subcontract Price with detailed backup documentation based on relevant Subcontract rates,

In the event that the estimate submitted by Subcontractor is acceptable to Company, Company shall issue a Variation Order per Article 14.1.5  Issue of Variation Orders.

14.1.4 Effects of A Variation to the Work

All Subcontractor's obligations under the Subcontract shall also apply to Variations to the Work, unless expressly and in writing otherwise agreed.

Unless otherwise provided for elsewhere in this Subcontract and agreed between both parties, the price for Variations to the Work shall be determined according to the following principles:

1. If the Subcontract contains rates for variation Work in question, then such rates shall be applicable and used.
2. In other cases, rates/prices for Variations shall be prepared and agreed reflecting the general price level expressed in the Subcontract.

The effects of a Variation to the Work on the Subcontract Schedule shall be calculated and agreed on the basis of the accumulated net effect of such Variation to the Work.

A Variation to the Work caused by circumstances for which Subcontractor is responsible shall not entail any variations to the Subcontract Price and/or Subcontract Key Date Schedule in favour of Subcontractor.

14.1.5  Issue of Variation Orders

All Variations to the Work required in accordance with the provisions of Article 14.1.1  (Right to Vary the Work) and Article 14.1.3 shall be made by the means of a Variation Order issued by Company in accordance with the provisions of the Subcontract.

A Variation Order shall be clearly identified as such and issued on a standard form (Subcontractor shall refer to Section 12 - Work Site Administration Procedure).  It shall contain a complete detailed description of the VARIATION Work and the schedule for its execution, together with the effects on the Subcontract Price and/or Subcontract Key Date Schedule so far as practicable and the effects, if any, on the provisions of the Subcontract.

14.1.6  Consequences of Issued Variation Orders

On receipt of an approved Variation Order issued by Company in accordance with Article 14.1.5, Subcontractor shall implement it without undue delay.

14.1.7 In the event that the parties agree that there is a Variation,  but disagree as to the effect of the Variation on the Subcontract Price or a portion thereof, and/or the effect of the Variation on the Subcontract Key Date Schedule, then the views of both parties shall be recorded on the Variation Order.  In such event, Company and Subcontractor shall afford their best efforts to resolve this disagreement. However pending resolution of the disagreement, Subcontractor shall proceed with the implementation of the Variation Order provided that Subcontractor is in receipt of an approved Variation Order issued by Company for the non disputed portion of the Variation or written confirmation to that effect.

By no means shall Subcontractor’s obligations under this Subcontract be waived or modified pending resolution of the disagreement as to the effect of the Variation on the Subcontract Price, or a portion thereof, and/or the effect of the Variation on the Subcontract Schedule.

Company and Subcontractor shall always endeavour to reach mutual agreement on disputed Variations. In the event that this is not possible the procedure outlined in Article 16.7. (Arbitration) shall be applicable.

14.1.8 Invoicing/Payment of Variation OrderSs

Periodically the approved and agreed Variation Orders will be incorporated into the Subcontract by means of a Subcontract Amendment, which shall be agreed by the representatives of both parties.

Variation Orders, shall not be invoiced by Subcontractor until:-

1. They have been incorporated into the Subcontract by means of a Subcontract Amendment, unless expressly agreed in writing otherwise, or
2. All the Variation Order related work has been completed, in accordance with the provisions of the Subcontract, unless expressly agreed in writing otherwise.

Invoicing of Variation Orders will be in accordance with invoicing instructions, Article 5.3 and shall clearly identify which Variation Orders and related Subcontract Amendment are part of such invoices.

14.2. REQUESTS

14.2.1 If Company requests performance of specific work which in Subcontractor's reasonable opinion is not part of his obligations under the Subcontract, Subcontractor will issue a Variation Order request to Company and shall indicate a detailed estimate in accordance with the requirements set out in Article 14.1.

14.2.2 A request for A Variation Order shall be presented by means of a prescribed form known as a "Variation Order Request". It shall contain a specified description of the work the request relates to and, to the extent possible, the effects, which it in Subcontractor's opinion will have on the Subcontract Schedule and/or the Subcontract Price (refer to Section 12 - Work Site Administration Procedure).

14.2.3 When Subcontractor has made a request and Company agrees, then Company shall within a reasonable time sign the Variation Order Request form.

If Company is of the opinion that this work is a part of the Work as detailed in this Subcontract, Company shall confirm its opinion in writing to the Subcontractor.

15 Cancellation, Suspension and Termination

15.1. Cancellation

15.1.1 Company may Cancel the Subcontract at any time and at its discretion upon giving 14 calendar days notice to Subcontractor who shall thereupon cease the performance of the Work. On the date of such Cancellation, Subcontractor shall discontinue performance of the Work and shall, pending Company's instructions, preserve and protect the Plant, Materials and working Equipment committed to the Work. If requested by Company he shall turn over Materials to Company. Alternatively, Subcontractor shall dispose of the same in accordance with Company's instructions.

15.1.2 Following such Cancellation Company shall pay compensation to Subcontractor, upon presentation of satisfactory supporting documents as follows:

1. the unpaid balance due to Subcontractor for that part of the Work already performed,
2. all costs reasonably incurred by Subcontractor and its Lower Tier Subcontractors in connection with Materials procured prior to the notice of Cancelation being received by Subcontractor, and for Work performed on those Materials prior to such date, provided that such costs will not be paid under Article 15.1.2(a),
3. all necessary Cancelation charges and administration costs incurred by Subcontractor in connection with the Cancelation,
4. SubcontractorS and its Lower Tier Subcontractors' other reasonable expenses directly attributable to an orderly close-out of the Subcontract, calculated as far as possible in accordance with the provisions of Article 16.5.

Payment in accordance with the provisions of this Article 15.1.2 shall be Subcontractor's sole entitlement to compensation arising as a result of or in connection with the Cancelation of the Subcontract. Company shall have no liability for any losses or expenses not specifically set out herein.

Subcontractor shall submit invoices monthly in arrears for amounts due under this Article 15.1.2 to be paid by Company within 45 Days.

Company shall be entitled to deduct from the amount calculated under this Article 15.1.2 any amount which it would otherwise be entitled to deduct from any other payments in accordance with this Subcontract.

15.1.3 Subcontractor shall, in accordance with Company's instructions, use his best endeavours to Cancel its own Subcontracts on terms acceptable to Company. If Company cannot accept the Cancelation terms, then Subcontractor shall assign such Subcontracts to Company.

15.1.4 Upon Cancelation of the Subcontract, Company shall prepare and issue a Takeover Certificate which shall state each party's opinion of the percentage of the Work completed, calculated in accordance with the principles of progress measurement stated in Section 12 - Work Site Administration Procedures. Company shall also issue the Completion Certificate, which reflects the Takeover Certificate.

15.1.5 Prior to issue of the Completion Certificate, Subcontractor shall deliver copies of all plans, drawings, specifications and other documents which Company is entitled to use in accordance with Article 15.1

15.1.6 Cancelation of the Subcontract in accordance with the provisions of Article 15.1 shall be without prejudice to existing rights and remedies of either party in relation to any act, omission of default of the other prior to such Cancelation.

15.2 Suspension

15.2.1 Company may temporarily suspend the performance of the Work or parts thereof by giving notice to Subcontractor.

15.2.2 The notice shall specify which part of the Work shall be suspended, the effective date of the suspension and the expected date for resumption of the Work. Furthermore, it shall state any support functions, which Subcontractor shall maintain while the Work is suspended.

15.2.3 Subcontractor shall resume the Work after notification by Company. The date for resumption of the Work shall be determined by Company with due consideration to a remobilization plan prepared by Subcontractor and the support functions being maintained during the suspension.

Provided that the suspension is due to no fault of Subcontractor, Company shall compensate Subcontractor for all necessary and documented expenses arising from:

1. demobilisation of personnel and equipment;
2. safeguarding the Plant, Materials and working Equipment;
3. SubcontractorS Personnel, SubcontractorS, working Equipment and any other support function which Subcontractor has advised Company that he must maintain or which Company has required Subcontractor to maintain during the suspension;
4. other direct expenses incurred by Subcontractor as a result of the suspension.

If the suspension leads to delay or if Subcontractor claims that it does, then a request from Subcontractor in this respect must be made in accordance with the provisions of Article 14.1.

If the Work or parts thereof have been suspended continuously for a period exceeding 120 Days, Subcontractor may request Company in writing to Cancel the Subcontract for that part of the Work, which is suspended by giving 14 Days notice. If Company has not ordered a resumption of the Work within 14 Days after receiving the notice, then the provisions of Article 15.1 shall apply accordingly.

15.3 Termination

15.3.1 Company is entitled to Terminate the Subcontract with immediate effect by notice to Subcontractor when:

1. Company has become entitled to be paid maximum liquidated damages in accordance with Article 16.5, or
2. Subcontractor is in any other substantial breach of Subcontract and continues to be in such breach of Subcontract after receipt of notice to comply with the Subcontract, or

Subcontractor either:

1. becomes insolvent or is unable to pay his debts, or
2. stops, suspends or threatens to stop or suspend payment of all or a material part of his indebtedness, or
3. begins negotiations or takes any other step with a view to or proposes or makes any agreement for the deferral or rescheduling or other re-adjustment of all of his indebtedness, or
4. proposes or makes a general assignment or an arrangement or compositions with or for the benefit of relevant creditors, or
5. agrees or declares a moratorium in respect of or affecting all or a material part of his indebtedness, or
6. commits any other act of insolvency under the acts of the jurisdiction where Subcontractor is established or,
7. becomes involved in major litigation or other adverse events which in the sole opinion of Company may materially affect Subcontractor's performance pursuant to the Subcontract

15.3.2 In the event of such Termination, Subcontractor shall forthwith give Company possession of the Plant including all Materials not yet incorporated in the Plant. In such event Company shall also be entitled to temporarily take over any working Equipment at Company's Work Site in order to complete the Plant

In the event of Termination by Company under Article 55.1, Subcontractor shall promptly advise Company of all outstanding Lower Tier SubcontractS and furnish Company with complete copies thereof. Subcontractor shall assign to Company, SubcontractorS title to Materials and those Lower Tier SubcontractS designated by Company.

Subcontractor shall assist Company in making an inventory of all Materials and working Equipment in storage at Company's Work Site, en route to Company's Work Site, in manufacture away from Company's Work Site, and on order from Lower Tier Subcontractors.

15.3.3 In the event of Termination, Subcontractor shall not be entitled to receive any further payment until the Completion Certificate is issued. Upon issue of the Completion Certificate, Company will determine the total cost incurred in completing the Facilities including additional overhead, legal and other costs incurred by Company to effect such Termination. If the total costs noted above exceed the balance of the Subcontract Price unpaid at the time of Termination, Subcontractor shall, promptly after receipt of an invoice, pay to Company the amount of such excess.

15.3.4 When the Subcontract is Terminated, Company shall also be entitled to claim liquidated damages for delay in accordance with the provisions of Article 60, calculated on the basis of the anticipated number of calendar Days by which the issue of the Final Takeover Certificate would have been exceeded if Subcontractor had completed the Plant.

15.3.5 Termination of the Subcontract in accordance with the provisions of Article 15.3 shall be without prejudice to existing rights and remedies of either party in relation to any act, omission or default of the other prior to such Termination.

15.4.6 In the event of Cancelation, suspension or Termination of the Work or any part thereof, neither Company nor Owner shall be liable to Subcontractor for any loss or damage either direct or consequential, as a result of such, suspension, Cancelation or Termination except as defined in articles 15.1, 15.2 and 15.3 respectively.

16. General Legal Conditions

16.1 Language

The normal working language shall be English. Subcontractor shall ensure that all SubcontractorS' key personnel, as identified in his organisation chart, can adequately communicate, both verbally, and in writing, through the medium of the English language. Subcontractor shall also ensure that his supervisory personnel have a good working knowledge of the English language.

Subcontractor agrees that all documents, drawings, specifications and correspondence will be written in the English language and only when required by local authorities or law will another language be used or to the extent expressly stated otherwise elsewhere in this Subcontract.

16.2 Gratuities

Except for customary promotional material and occasional business entertainment, limited in value in any instance to the reasonable cost of a business meal, and other than as specifically authorised under the terms of this Subcontract, Subcontractor shall not give, offer, or accept, and warrants that it has not given, offered or accepted, directly or indirectly, any money, personal services, credit or other thing of value, to or from:

1. Company and/or Owner or their affiliated or related companies, or
2. any of their agents, independent SubcontractorS or Lower Tier Subcontractors, or
3. the employees of any of the foregoing,

in order to influence the award of this Subcontract or any other contract that has been or may be awarded by Company or Owner, or their terms, performance, administration, extension or termination.

Any violation of Article 16.2 shall constitute a substantial breach of this Subcontract which, without prejudice to Company's or Owner's rights to enforce any other remedy provided by law, shall empower Company or Owner to Terminate this Subcontract for default and claim damages including, but not limited to, any increased costs incurred by Company as a result of such breach.

16.3 Compliance With Law

Subcontractor shall in execution of the Work comply with all applicable laws, orders, rules and regulations and by-laws of Government or local authorities and shall indemnify and hold Owner/Company harmless from and against any and all liabilities, claims, costs, losses, expenses and judgements arising from,  or based on any actual or asserted violation by Subcontractor of any applicable laws, orders, rules and regulations and by-laws. Subcontractor shall, at its own expense, procure all necessary permits, certificates and licenses required in the name of Subcontractor pertaining to the execution of the Work

16.4 Force Majeure

16.4.1 Article 16.4 applies if either party is unable to perform its obligations in whole or in part under this Subcontract due to Force Majeure.

16.4.2 Force Majeure means any event referred to in Article 16.4.2, provided that the party invoking such event could not reasonably have foreseen it and furthermore that such party could not reasonably have avoided or overcome such event or the consequences of such event.

The following events, in combination with the other conditions given in Article 16.4.1 qualify as Force Majeure:

1. strikes, lockouts, industrial action or labour disputes which are wide spread, or
2. earthquake, tempest, cyclone, hurricane, whirlwind or other exceptionally adverse weather or environmental conditions, meteorites or objects falling from aircraft or other aerial devices, the occurrence of pressure waves caused by aircraft or other aerial devices travelling at supersonic speed, chemical or radio active contamination or ionizing radiation (excluding circumstances where the source or cause of the explosion or contamination or radiation is brought or has been brought an to or near any of Subcontractor's Work Sites or Company's Work Site by the affected party or those employed or engaged by the affected party), or
3. act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, bombs or civil commotion. or
4. sabotage, terrorism or threat of such acts,

For the avoidance of doubt it is acknowledged and agreed that the following events shall not constitute Force Majeure:

1. the occurrence of any weather conditions, or any consequence thereof unless such weather conditions are proven to be more evere than conditions encountered at the affected location at any time within ten years immediately preceding commencement of the Work, or
2. insolvency or other failure in performance of any Subcontractor, or any Lower Tier Subcontractor, or
3. the mere shortage of labour, materials or utilities unless caused by circumstances which are themselves Force Majeure.

16.4.3 If either party is prevented or delayed from performing any of its obligations under the Subcontract due to Force Majeure, it shall not later than 7 calendar days after the beginning of each such period of delay, issue a notice to the other party setting out the circumstances constituting the Force Majeure event and the obligations which is thereby delayed or prevented. The party giving such notice shall thereupon be excused from failing performance of such obligations for so long as the Force Majeure event continues. The notice shall include an estimate of the anticipated delay arising from the Force Majeure event. Failure to give notice as aforesaid shall preclude the party invoking Force Majeure from relying on the alleged Force Majeure event to excuse his performance under the Subcontract.

16.4.4 The affected party shall, at its own cost, take all steps reasonably required to restore its ability to perform its obligations under the Subcontract as soon as reasonably possible.

16.4.5 Nothing herein shall alter any obligation with respect to portions of the contractual obligations not affected by Force Majeure.

16.4.6 Not later than 7 days after the cessation of the Force Majeure event, the party asserting it shall give the other party notice of the date of such cessation. If Subcontractor wishes to claim an adjustment of the Subcontract Schedule as a result of the Force Majeure event, a request in this respect must be made in accordance with the provisions of Article 14.1, provided, however, that the time limit in this respect shall be 14 days after the cessation of the Force Majeure.

16.4.7 The occurrence of Force Majeure shall not entitle Subcontractor to any financial compensation whatsoever

16.4.8 If the duration of any period of Force Majeure exceeds 180 calendar days, or it is clear that it will do so, either party may cancel the Subcontract forthwith by giving the other party 14 days notice to that effect. In such event the provisions of Article 15.1 shall apply to determine the amounts payable to Subcontractor by Company as a result of such cancellation.

16.5 Liquidated Damages

16.5.1 Subcontractor shall be deemed to be in delay if the Work content of any Milestone contained in the Subcontract Schedule is not completed by the appropriate Milestone Date.

If Subcontractor fails to meet any of the Milestone Dates marked as liquidated damage Milestones in the Milestone Schedule, he will be liable for daily liquidated damages as further detailed in the Form of Agreement. Subcontractor shall pay such without any prior notice or demand and without proof of loss.

16.5.2 Subcontractor’S cumulative liability for liquidated damages for delay under the Subcontract is defined in the Form of Agreement.

16.5.3 Company may deduct any amounts due in respect of liquidated damages from payments becoming due under the Subcontract.

16.5.4 Company may terminate the Subcontract in accordance with Article 5.4 due to delay.

16.6 Applicable Law

Subcontractor shall in execution of the Work comply with all applicable laws, orders, rules, regulations, by-laws of Government or local authorities,  and shall indemnify and hold Owner/Company harmless from and against any and all liabilities, claims, costs, losses, expenses and judgements arising from or based on any actual or asserted violation by Subcontractor of any applicable laws, orders, rules and regulations and by-laws. Subcontractor shall, at its own expense, procure all necessary permits, certificates and licenses required in the name of Subcontractor pertaining to the execution of the Work.

The Subcontract shall be governed by and construed and enforced in accordance with the law of the Netherlands.

16.7. Arbitration

16.7.1 Subcontractor shall give Company written notice within ten (10) working days following the occurrence or discovery of any item or event which Subcontractor knows, or reasonably should know, may result in a request for additional compensation under the Subcontract or a change in a Milestone DATE or the Completion Date. Within twenty (20) working days following the written notice, Subcontractor shall supply Company with a statement supporting Subcontractor's claim, which statement shall identify the particular Subcontract articles under which Subcontractor is claiming, together with the necessary supporting documents which shall include a detailed estimate of the additional compensation and/or time period.

16.7.2 Company and Subcontractor shall endeavour to satisfactorily settle any claims. Irrespective of pending negotiations, Subcontractor shall continue to execute the work and shall undertake any work including any disputed parts upon being instructed to do so in writing by Company.

16.7.3 In order to avoid disturbing a smooth execution of the work and to safeguard the working relationship between Company and Subcontractor at the Work Site, claims remaining unsettled in the opinion of the Company and Subcontractor representatives shall be handled by the Company and the Subcontractor home offices.

16.7.4 Company shall not be liable for and Subcontractor hereby waives any claim or potential claim of Subcontractor to Company and/or Owner of which Subcontractor knew or should have known and which was not reported by Subcontractor in accordance with this Article 16.7 and 14.1 of this Section 2.

16.7.5 Any dispute under this Subcontract, shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three arbitrators in accordance with the said rules. Place of arbitration shall be The Hague, The Netherlands. Performance of the Work shall continue independent of any arbitration proceedings initiated pursuant to this Article 60.1 unless Company has ordered a suspension pursuant to Article 15.3.

16.8 US Export Administration Regulations

Subcontractor shall not disclose or ship, directly or indirectly, any information made available to Subcontractor pursuant to or in connection with the Subcontract or the direct product thereof (equipment, plant, process or service) to any country where such disclosure or shipment is restricted by the laws and regulations of the United States of America.

16.9 Continuing Obligations

The provisions of this Subcontract which by their nature survive the issue of the Completion Certificate shall remain in full force and effect following the issue of such certificate or earlier Termination or Cancelation of the Subcontract.

16.10. Validitiy of Provinsions

If any provision of this Subcontract shall be declared invalid and unenforceable or illegal by the competent authorities of any jurisdiction to which it is subject such invalidity, unenforceability or illegality shall not prejudice or affect the validity, enforceability and legality of the remaining provisions of the Subcontract.