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0086072-0000001 UKO1: 2000062057.9
DRAFT DATE: 22 JUNE 2020
OPERATIONAL GAS SALES AGREEMENT
TRANS ADRIATIC PIPELINE AG
and
[⚫]
0086072-0000001 UKO1: 2000062057.9
CONTENTS
Clause Page
1. Definitions and Interpretation ............................................................................................................... 1 2. Agreement for Sale and Purchase of Gas .............................................................................................. 7 3. Term of Agreement and Gas Commencement Date .............................................................................. 7 4. Delivery and Take Obligations .............................................................................................................. 8 5. Delivery Procedures and Nominations .................................................................................................. 9 6. Failure to Take or Deliver ................................................................................................................... 10 7. Contract Price and Index Unavailability ............................................................................................. 10 8. Credit Support ..................................................................................................................................... 11 9. [Quality and Off-Specification Gas ..................................................................................................... 11 10. Delivered Quantities ............................................................................................................................ 12 11. Invoicing and Payment ........................................................................................................................ 12 12. Warranties, Representations and Covenants ....................................................................................... 13 13. Maintenance ........................................................................................................................................ 17 14. Force Majeure...................................................................................................................................... 17 15. Assignment and Transfer ..................................................................................................................... 19 16. Confidentiality ..................................................................................................................................... 19 17. Taxes and Customs Obligations .......................................................................................................... 20 18. Liabilities and Limitations ................................................................................................................... 20 19. Termination ......................................................................................................................................... 22 20. Notices ................................................................................................................................................. 23 21. Expert Determination of Disputes ....................................................................................................... 25 22. Negotiation and Arbitration ................................................................................................................. 28 23. Governing Law .................................................................................................................................... 29 24. Miscellaneous Provisions .................................................................................................................... 29
Schedule
1. Back-up Nomination, Renomination and Confirmation Notices ........................................... 31 2. Anti-Bribery and Corruption Measures .................................................................................. 32
Part 1 Anti-Bribery and Corruption Provisions ............................................................. 32 Part 2 Model 231 ........................................................................................................... 37
Signatories ........................................................................................................................................................ 38
0086072-0000001 UKO1: 2000062057.9 1
THIS AGREEMENT is dated ___________________________________ 20[⚫].
BETWEEN:
(1) [⚫], a [corporation] registered under the laws of [⚫] whose registered office is at [⚫] ([⚫] or the
Seller); and
(2) TRANS ADRIATIC PIPELINE AG, a corporation registered under the laws of Switzerland, whose
registered office is at Lindenstrasse 2, 6340 Baar, Switzerland (TAP or the Buyer),
(each a Party and together the Parties, which terms shall include their successors and permitted transferees).
WHEREAS:
(A) The Buyer requires Gas for operational purposes and the Seller is able to supply such Gas.
(B) The Seller has agreed to sell and the Buyer has agreed to buy Gas on and subject to the terms of this
Agreement.
(C) The Gas will be delivered by the Seller to the Buyer [at the VTP]/[by commercial reverse flow at the
Interconnection Point with the Snam Rete Gas system in Melendugno]/[at the Buyer's redelivery point
at the pipeline receiving terminal in Melendugno for the delivery of fuel gas for the Buyer's gas
heaters].
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
Affected Party has the meaning specified in Clause 14.2.
Affiliate means, with respect to any Entity, any other Entity that directly or indirectly Controls, is
Controlled by or is under common Control with that Entity.
Agreed Interest Rate means interest at a rate equal to:
(a) in respect of the calendar month in which the relevant payment was due, the one month
EURIBOR on the last Banking Day before the due date of payment; and
(b) in respect of each successive calendar month thereafter until the date of actual payment (both
before and after judgment, where applicable), the one month EURIBOR on the first Banking
Day of each such month.
Applicant has the meaning specified in Clause 21(b)(i).
Application has the meaning specified in Clause 21(b)(v).
Approval means any approval, authorisation, certificate, consent, decision, decree, judgment, licence,
order, permit, or other endorsement of any kind (regardless of the formal nomenclature given to any
of the foregoing) from or by any Competent Authority.
0086072-0000001 UKO1: 2000062057.9 2
Banking Day means a day (other than a Saturday or a Sunday) on which banks are open for general
business in London.
bar means the unit "bar" definition of the quantity pressure as defined in ISO 80000-1:2009
"Quantities and units – Part 1: General".
Business Day means any day, excluding Saturday or Sunday or any other day which is a public
holiday, when the banks are open for service in the Canton of Zug, Switzerland.
Competent Authority means any national, supranational, regional or local government or
governmental or administrative, fiscal, judicial or government-owned body, department, commission,
authority, tribunal, agency, inspectorate, ministry, official, Entity or public or statutory Person.
Confidential Information means this Agreement and all confidential information and data of
whatever nature, which any Party may from time to time receive or obtain (orally or in written or
electronic form) as a result of negotiating, entering into, or performing its obligations pursuant to, this
Agreement (including geological, geophysical and engineering data, maps, models and interpretations,
and commercial, contractual and financial information), and which:
(a) relates in any manner to this Agreement or any other agreement or arrangement contemplated
by this Agreement;
(b) concerns the business, finances, assets, liabilities, dealings, transactions, know-how,
customers, suppliers, processes or affairs of the other Party; or
(c) is expressly indicated to be confidential or is imparted by one Party to the other in
circumstances creating an obligation of confidence and/or non-disclosure.
Consequential Loss has the meaning specified in Clause 18.1(d).
Contract Period means the period from the Signing Date to the Termination Day, both inclusive.
Contract Price has the meaning specified in Clause 7.1.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of
the management and policies of an Entity, whether through the ownership of a majority or other
controlling interest in the voting securities or other equity ownership interest in an Entity, by Law, or
by agreement between Persons conferring such power or voting rights, and the terms Controls or
Controlled shall be construed accordingly.
Daily Requested Quantity has the meaning specified in Clause 5(a).
Decision has the meaning specified in Clause 21(f)(i).
Delivery Day has the meaning specified in Clause 5(a).
Delivery Point means [[the Interconnection Point with the Snam Rete Gas system at Melendugno,
Italy for the commercial reverse flow delivery into the TAP Transportation System]1/[the VTP]2/[ the
Buyer's Redelivery Point at the pipeline receiving terminal in Melendugno which is an exit point from
the Snam Rete Gas system (code 50172201)]3].
1 Note: For the reverse flow GSA. 2 Note: For deliveries at the VTP. 3 Note: For delivery to the PRT.
0086072-0000001 UKO1: 2000062057.9 3
Dispute means any dispute, controversy, or claim of any kind or type, whether based on contract, tort,
statute, regulation, or otherwise, arising out of, relating to, or connected with this Agreement, or the
operations carried out under this Agreement, including any dispute concerning the formation,
existence, validity, interpretation, performance, breach, or termination of this Agreement.
Dispute Meeting has the meaning specified in Clause 22(a).
Dispute Notice has the meaning specified in Clause 22(a).
Encumbrance means any claim, charge (fixed or floating), mortgage, pledge, security, lien, option,
equity, power of sale, usufruct, hypothecation, retention of title, right of pre-emption, right to acquire,
right of first refusal or other third party rights, trust arrangement or security interest of any kind or an
agreement or arrangement to create any of the foregoing.
Entity means any company, corporation, limited liability company, partnership, limited partnership,
joint venture, enterprise, association, trust or other juridical entity, organisation, whether of a
supranational, governmental or private nature, established or organised under the Laws of any state or
jurisdiction.
EUR means the currency of the European Union Member States for the time being participating in
economic and monetary union under the EU treaty.
EURIBOR means:
(a) the euro interbank offered rate administered by the European Money Markets Institute (or any
other person which takes over the administration of that rate) for EUR one month interest
periods displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement
Thomson Reuters page which displays that rate) as at 11:00 hours on the relevant date; or
(b) in the event (a) above is discontinued or unavailable, a reasonable substitute agreed by the
Parties for use in this Agreement.
Event of Force Majeure has the meaning specified in Clause 14.1(a).
Expert has the meaning specified in Clause 21(b)(ii).
Expert Notice has the meaning specified in Clause 21(b)(ii).
Gas means any hydrocarbons or mixture of hydrocarbons and non-combustible gases, which, when
extracted from the sub-soil of the earth in its natural state, separately or together with liquid
hydrocarbons, is predominantly in the gaseous state.
Gas Commencement Date has the meaning specified in Clause 3.2.
Gas Day means the period from:
(a) 05:00 UTC on a particular day until 05:00 UTC (06:00 until 06:00 CET) the following day,
during periods when daylight saving time is not applied; and
(b) 04:00 UTC on a particular day until 04:00 UTC (06:00 until 06:00 CEST) the following day,
during periods when daylight saving time is applied in the European Union,
and a Gas Day during which the European Union changes to or from daylight saving time will have
23 or 25 hours (as applicable).
0086072-0000001 UKO1: 2000062057.9 4
[Gas Transportation Agreement means any gas transportation agreement entered into between the
Seller and the Buyer (as transporter) for the provision of transportation services in the TAP
Transportation System pursuant to which the Gas to be delivered to the VTP will be transported to the
VTP.]
ICC means the International Chamber of Commerce.
ICC Arbitration Rules has the meaning specified in Clause 22(a).
ICC Expert Rules has the meaning specified in Clause 21(a).
Index Price has the meaning specified in Clause 7.1.
Insolvency Event has the meaning specified in Clause 19.3.
Interconnection Point means a physical interconnection point between the TAP Transportation
System and an interconnected system.
Invoice Dispute has the meaning specified in Clause 11.5(a).
Invoice Dispute Notice has the meaning specified in Clause 11.5(a).
Invoice Month has the meaning specified in Clause 11.1.
ISO means the International Organisation for Standardisation.
kWh means a quantity of energy equal to three million six hundred thousand (3,600,000) Joules.
Law means any supranational, national or local constitution, charter, act, law, statute, ordinance,
statutory provision, regulation, order, communiqué, decree or circular or any other applicable
legislative or administrative action of a Competent Authority or a final decree, judgment or order of a
court.
Maintenance Notice has the meaning specified in Clause 13(a).
Maximum Contracted Quantity has the meaning specified in Clause 4.4(b).
Maximum DCQ has the meaning specified in Clause 4.4(a).
Monthly Invoice has the meaning specified in Clause 11.1.
MWh means one thousand (1,000) kWh.
Nomination Day has the meaning specified in Clause 5(a).
OFAC has the meaning specified in Clause 12.4(a).
Person means any individual or Entity (including any Competent Authority).
Pn has the meaning specified in Clause 7.1.
Price Formula means the formula used to calculate the Contract Price, as set out (where relevant) in
Clause 7.1.
PSV means the virtual gas hub run by Italian network operator Snam Rete Gas.
0086072-0000001 UKO1: 2000062057.9 5
Reply has the meaning specified in Clause 21(b)(vi).
Representative means as to each Party, and/or its Affiliates if applicable, the Person(s) designated by
the Party and/or its Affiliates to give and receive notices under this Agreement and to exercise the
rights of the Party under this Agreement.
Restricted Party has the meaning specified in Clause 12.4(a).
Sanction or Sanctions has the meaning specified in Clause 12.4(a).
Sanctions List has the meaning specified in Clause 12.4(a).
Signing Date means the date on which this Agreement has been executed by both of the Parties.
Specifications has the meaning specified in Clause 9.1.
Surviving Provisions means the provisions of Clauses 1, 18, 19.4 and 20 to 24 inclusive and Schedule
2 (Anti-Bribery and Corruption Measures).
TAP Network Code means the network code applying to shippers in the TAP Transportation System
covering operational matters as amended from time to time in accordance with its terms.
TAP Transportation System means the physically continuous transportation system for the transit
of Gas through pipelines across the territories of Greece, Albania and Italy, owned and to be operated
by the Buyer.
Tax means any tax, impost, levy or duty including VAT, goods and services tax, environmental or
energy tax, excise duties and customs duties, or charge in the nature of taxation, and all related
withholdings or deductions of any nature, in each case levied or imposed by a Competent Authority
but excluding any tax on a Party's income, profits or capital gains.
Termination Day has the meaning specified in Clause 3.3.
Termination Notice means a prior written notice of not less than 90 days to terminate this Agreement
given by a Party to the other Party pursuant to Clause 19.2.
Third Party means any Person not a Party to this Agreement.
UTC means Co-ordinated Universal Time.
VAT means value-added tax.
VTP means the Virtual Trading Point in the TAP Transportation System.
Wilful Misconduct and Gross Negligence means, in relation to a Party, an intentional, conscious, or
reckless act or omission by senior supervisory or management staff of such Party that was intentional
or in reckless disregard of or wanton indifference to:
(a) good industry practice;
(b) any of the terms of this Agreement; or
(c) harmful consequences that such supervisory or management staff knew, or should have
known, such act or omission would have on the safety or property of another Person,
0086072-0000001 UKO1: 2000062057.9 6
but shall not include any error of judgment or mistake made by such supervisory or management staff
in the exercise in good faith of any function, authority or discretion conferred on or on behalf of such
supervisory or management staff of the Party employing such under this Agreement.
Year means a Gregorian calendar year.
1.2 Interpretation
(a) References and Headings
(i) References in this Agreement to Clauses and Schedules are to Clauses and Schedules of this
Agreement.
(ii) The table of contents, the cover page and the headings to Clauses and Schedules are for
convenience only and shall not affect the construction of this Agreement.
(b) Number and Including
In this Agreement, unless the context otherwise requires:
(i) words denoting the singular include the plural and vice-versa; and
(ii) the words "include", "includes" and "including" shall not be construed as words of limitation.
(c) Applicable Law
Reference in this Agreement to any Law shall, unless expressly stated to the contrary, be a reference
to such Law as from time to time amended, consolidated or re-enacted.
(d) Documents
References in this Agreement to any agreement, licence, permission, approval, standards or document
shall, unless expressly stated to the contrary, be a reference to such agreement, license, permission,
approval, standards or document as from time to time assigned, amended, restated, replaced,
supplemented or novated.
(e) Currency
References to any amount of money shall, unless otherwise stated, mean a reference to the amount in
EUR.
(f) Gas industry matters
(i) Unless otherwise stated in this Agreement, references to Gas by quantity, mean a reference to
the amount of Gas in kWh unless expressed otherwise.
(ii) Words, phrases, or expressions that are not defined in this Agreement but that have a generally
accepted meaning in the international businesses of production, transportation, distribution,
and sale of Gas shall have that meaning in this Agreement.
(g) Rounding
(i) For the purpose of this Agreement, rounding shall be done according to ISO Standard 80000-
1:2009(E), Annex B related to the rules for the rounding of numbers. If the value to be
rounded is equally located between two numbers, rounding shall be done to the higher integer
0086072-0000001 UKO1: 2000062057.9 7
number according to ISO Standard 80000-1:2009(E), Annex B, Clause B.3, Rule B, as
revised.
(ii) Subject to Clause 1.2(g)(i), in calculating any sum of money to be paid under this Agreement:
(A) the calculated value of such sum of money shall be rounded to two (2) places
of decimals; and
(B) the factors and the results of any intermediate calculations to calculate such
sum of money shall not be rounded.
(h) Periods of time
(i) All references to time shall unless otherwise specified be to UTC.
(ii) In the computation of a period of time from a specified day to a later specified day, the word
"from" means "from but excluding", the words "on and from" mean "from and including" and
the words "until" and "to" mean "to and including".
(iii) Any provision or stipulation that an action may or shall be taken within a specified number of
days means that the action may or shall be taken within the number of days so specified
starting at 00:00 hours on the day on which the right or obligation to take the action arises.
(i) Conflicts
(i) References to this Agreement shall be deemed to refer to this document, together with the
Schedules attached to this document.
(ii) In case of inconsistency between anything in the body of this Agreement and anything in a
Schedule, the body of the Agreement prevails to the extent of the inconsistency.
(j) Persons
Any reference in this Agreement to a Person shall include the successors and assigns of that Person
from time to time.
(k) Reasonable endeavours
The references in this Agreement to "reasonable endeavours" shall take into account the commercial,
technical, operational and economic factors affecting the Parties and the projected benefit, cost and
risk to the Parties of taking the relevant action, including the conditions affecting such action during
the relevant period.
2. AGREEMENT FOR SALE AND PURCHASE OF GAS
The Seller shall sell and make available Gas to the Buyer, and the Buyer shall use reasonable
endeavours to take delivery of and shall pay for Gas delivered at the Delivery Point in accordance with
the terms of this Agreement.
3. TERM OF AGREEMENT AND GAS COMMENCEMENT DATE
3.1 Term of Agreement
This Agreement shall come into force and effect on the Signing Date and shall terminate at the end of
the Gas Day which ends on the Termination Day.
0086072-0000001 UKO1: 2000062057.9 8
3.2 Gas Commencement Date
The Gas Commencement Date shall be the date notified by the Buyer to the Seller in writing
following the Signing Date. Such notice must be given at least 15 days in advance of the anticipated
Gas Commencement Date (or such shorter notice period as the Parties may agree in writing).
3.3 Termination Day
The Termination Day shall be the earlier of:
(a) 1 October 2021; and
(b) the date on which this Agreement terminates pursuant to a Termination Notice.
4. DELIVERY AND TAKE OBLIGATIONS
4.1 Seller's obligation
(a) For each Gas Day on and from the Gas Commencement Date during the Contract Period, the Seller
shall make available and sell the Daily Requested Quantity to the Buyer at the Delivery Point, subject
to and in accordance with the terms of this Agreement.
(b) [For the purpose of this Agreement, Gas will be deemed to have been delivered to the VTP in
accordance with the "Allocated Quantities" under the relevant Gas Transportation Agreements.]4
(c) The Seller shall be responsible for booking the transportation capacity required to ensure delivery of
Gas to the Delivery Point, including [exit capacity in the Snam Rete Gas system at the Delivery
Point]5/[sufficient forward flow entry capacity in the TAP Transportation System at the
Interconnection Point at Kipoi, Greece to ensure that the Seller can transport Gas to, or trade gas at,
the VTP]6.
(d) The Buyer shall have no obligation to provide any additional transportation capacity to the Seller or
to assist the Seller in procuring transportation capacity, other than in accordance with the TAP
Network Code.
4.2 Buyer's obligation
(a) For each Gas Day on and from the Gas Commencement Date during the Contract Period, the Buyer
shall make nominations in accordance with Clause 5(a) and use reasonable endeavours to accept
delivery of the Daily Requested Quantity from the Seller at the Delivery Point, subject to and in
accordance with the terms of this Agreement.
(b) The Buyer shall pay for all quantities of Gas made available by the Seller and taken delivery of by the
Buyer under this Agreement on a monthly basis pursuant to Clause 11.
4.3 Inability to deliver or take delivery of Gas
Notwithstanding Clause 4.1 and 4.2, each Party shall communicate to the other Party as soon as
reasonably practicable any events or circumstances that may affect their respective abilities to make
delivery or take delivery of Gas under this Agreement.
4 Note: For deliveries at the VTP. 5 Note: For the reverse flow deliveries and deliveries at the Redelivery Point. 6 Note: For deliveries at the VTP.
0086072-0000001 UKO1: 2000062057.9 9
4.4 Maximum Quantity
(a) Subject to Clause 4.4(c), the maximum quantity of Gas which the Seller shall make available and the
Buyer may take delivery of on any Gas Day pursuant to Clause 4.2(a) is [⚫] [MWh]/[kWh] (the
Maximum DCQ).
(b) Subject to Clause 4.4(c), the aggregate quantity of Gas which the Seller shall make available over the
duration of the Contract Period pursuant to Clause 4.1(a) shall be [⚫] [MWh]/[kWh] (the Maximum
Contracted Quantity).
(c) In the event of any exceptional requirements of the Buyer, the Parties may agree to the sale and
purchase of volumes of Gas in excess of the Maximum DCQ and/or the Maximum Contracted
Quantity. Such sale and purchase will be on the same terms and conditions as those of this Agreement,
subject to any amendments agreed between the Parties for such additional quantities of Gas.
4.5 Transfer of title and risk
Title and risk in relation to all quantities of Gas supplied under this Agreement shall transfer from the
Seller to the Buyer at the Delivery Point.
5. DELIVERY PROCEDURES AND NOMINATIONS
(a) Not later than [09:00/11:00]7 hours (winter time) or [08:00/10:00] hours (when daylight saving is
applied in the European Union) on the day (the Nomination Day) immediately preceding each Gas
Day on and from the Gas Commencement Date (the Delivery Day), the Buyer shall notify to the Seller
the quantity of Gas expressed in kWh that the Buyer nominates and requests the Seller to make
available in accordance with this Agreement on the Delivery Day (the Daily Requested Quantity).
(b) If the Buyer does not nominate, in accordance with Clause 5(a) in respect of any Delivery Day, the
deemed Daily Requested Quantity in respect of such Delivery Day will be zero.
(c) Not later than [10:00/12:00]8 hours (winter time) or [09:00/11:00] hours (when daylight saving is
applied in the European Union) on the Nomination Day, the Seller will confirm to the Buyer the Daily
Requested Quantity for the Delivery Day that the Seller, pursuant to Clause 4.1(a), will make available
to the Buyer on the Delivery Day.
(d) Subject to the Maximum DCQ, the Buyer may, at any time, submit renominations of the Daily
Requested Quantity, provided that the change to the Gas flows will only be effective four hours after
the Buyer submits a renomination. The Seller shall confirm any renomination within one hour of
receipt of such renomination.
(e) The Parties shall communicate as soon as reasonably practicable any events or circumstances that may
affect their respective abilities to make available Gas or to take delivery of Gas in accordance with
this Agreement.
(f) Communication between the Parties in relation to nominations, renominations and confirmation of
nominations or renominations will be made by exchanging Edig@s messages or, if Edig@s is
unavailable using the forms set out in Schedule 1.
7 Note: First time will be applicable to TAP's primary contract and the second time to TAP's secondary contract 8 Note: First time will be applicable to TAP's primary contract and the second time to TAP's secondary contract
0086072-0000001 UKO1: 2000062057.9 10
6. FAILURE TO TAKE OR DELIVER
(a) Each Party shall promptly notify the other Party if it becomes aware that, in respect of any Gas Day,
it will be unable to take or deliver (as applicable) all or any portion of the Daily Requested Quantity,
for any reason.
(b) The Buyer shall use reasonable endeavours to procure replacement Gas from Third Parties for any
portion of the Daily Requested Quantity that the Seller failed to deliver.
(c) The Seller shall use reasonable endeavours to sell to Third Parties any portion of the Daily Requested
Quantity that the Buyer failed to take.
(d) Unless excused by an Event of Force Majeure or pursuant to Clause 13(b), or caused by an act or
omission of the Buyer, the Seller shall compensate the Buyer for any additional costs incurred by the
Buyer in procuring replacement Gas for any portion of the Daily Requested Quantity that the Seller
failed to deliver at the Delivery Point (including any difference between the price paid by the Buyer
for such replacement Gas and the Contract Price that would have been payable to the Seller under this
Agreement).
(e) Unless excused by an Event of Force Majeure, or caused by an act or omission of the Seller, if the
Buyer fails to take a portion of the Daily Requested Quantity and the Seller sells that Gas to a Third
Party pursuant to paragraph (c) above at a price (net of direct additional costs in making that sale)
lower than the price that would have been payable by the Buyer, the Buyer shall compensate the Seller
for the difference between the price received by the Seller (net of direct additional costs in making
that sale) from those Third Party sales and the price that would have been received from the Buyer for
such Gas.
(f) [The Seller will have no liability for failure to deliver the Daily Requested Quantity if and to the extent
that such non-delivery was caused by insufficient forward flow transportation in the TAP
Transportation System which prevented the reverse flow delivery of Gas at the Delivery Point.]9
(g) Each Party shall use reasonable endeavours to mitigate the losses it might otherwise incur as a result
of the other Party's failure to take or deliver all or any portion of the Daily Requested Quantity.
7. CONTRACT PRICE AND INDEX UNAVAILABILITY
7.1 Contract Price
The Contract Price for any Delivery Day during the Contract Period shall be calculated according to
the following Price Formula:
Pn = Index Price + Handling Fee,
Where:
Pn is the Contract Price in EUR per MWh;
Index Price means, in respect of a Delivery Day that is a Banking Day, the mid-point between the
day-ahead "offer" price and day-ahead "bid" price for Gas at the PSV in EUR per MWh and, in respect
of a Delivery Day that is not a Banking Day, the midpoint between the weekend "offer" price and the
weekend "bid" price for Gas at the PSV in EUR per MWh as published, in each case, by ICIS Heren
9 Note: Applicable to the reverse flow GSA.
0086072-0000001 UKO1: 2000062057.9 11
in "European Spot Gas Markets" under the heading "PSV Price Assessment" on the Banking Day
immediately preceding the relevant Delivery Day; and
Handling Fee means the Seller's handling fee per MWh, being [⚫].10
7.2 Index unavailability
(a) Subject to Clause 7.2(b), if for any reason whatsoever, at the time of the Contract Price calculation,
the final value of one or more parameters to be utilized for such calculation are not published or
available for the Delivery Day, the Contract Price shall be calculated in accordance with the Price
Formula by assuming the latest published or available value of each of such parameters.
(b) In the event that one or more parameters to be utilized for such calculation are not published or
available for five (5) consecutive Banking Days, the Parties shall promptly negotiate in good faith to
agree on an alternative reference price index or method for calculating the Contract Price and if the
Parties have not so agreed on or before a further five (5) Banking Days later, either Party may refer
the matter to an Expert for determination in accordance with Clause 21, it being agreed that Clause
7.2(a) shall continue to apply until the Expert has issued his determination.
8. CREDIT SUPPORT
If at any time the Seller cannot demonstrate, to the reasonable satisfaction of the Buyer, that it meets
(or is deemed to meet) the Minimum Credit Rating (under and as defined in the TAP Network Code)11,
the Seller shall procure [additional credit support to be suggested by the Seller in its Bid if it does not
meet the Minimum Credit Rating] in a form and substance satisfactory to the Buyer as security for its
obligations to deliver Gas.
9. [QUALITY AND OFF-SPECIFICATION GAS12
9.1 Specification Requirements
Gas made available by the Seller for delivery at the Delivery Point under this Agreement shall comply
with the specifications set out in the [Gas Transportation Agreement]13/[the Network Code of Snam
Rete Gas]14 (the Specifications).
9.2 Off-Specification Gas
[The provisions of the Gas Transportation Agreement shall apply to the failure or anticipated failure
of the Gas to meet the Specifications.]15
(a) [If, at any time, any quantity of Gas delivered or to be delivered by the Seller does not comply with
the Specifications, the Buyer may refuse to accept in whole or in part such Gas and/or may take any
other action in order to dispose of such Gas and shall promptly notify the Seller of any such refusal
and/or other action taken.
(b) Unless the Buyer knowingly accepts Gas that does not comply with the Specifications, the Seller shall
indemnify the Buyer for all losses, costs and expenses incurred by the Buyer, acting reasonably, in
respect of Gas delivered under this Agreement that does not comply with the Specifications.]16
10 Note: To be determined during the competitive tender process. 11 Note: This is BBB- by S&P or Fitch or Baa3 by Moody's. 12 Note: Off-spec is applicable for deliveries at the VTP and Redelivery Point but not for the reverse flow GSA as there are no physical deliveries. 13 Note: For deliveries at the VTP. 14 Note: For deliveries at the Redelivery Point. 15 Note: For deliveries at the VTP only. 16 Note: For deliveries at the Redelivery Point only.
0086072-0000001 UKO1: 2000062057.9 12
9.3 Dispute resolution
Any Dispute between the Parties as to whether Gas complies with the Specifications shall be resolved
in accordance with the provisions of the [Gas Transportation Agreement]/[the Network Code of Snam
Rete Gas.]]
10. DELIVERED QUANTITIES
The quantity of Gas delivered to the Buyer by the Seller under this Agreement will be determined in
accordance with the allocated quantities notified to the Seller by [the Buyer in accordance with the
TAP Network Code]17/[Snam Rete Gas in accordance with the Seller's gas transportation arrangements
with Snam Rete Gas]18.
11. INVOICING AND PAYMENT
11.1 Monthly Invoice
The Seller shall prepare and deliver to the Buyer by recorded delivery and email (or other electronic
format as agreed between the Parties) not later than the fifth day in each calendar month during the
Contract Period, a statement (the Monthly Invoice) which shall show in respect of the preceding
calendar month (the Invoice Month) the following information:
(a) the applicable Contract Price for each Gas Day during the Invoice Month;
(b) the quantity of Gas (expressed in kWh) delivered by the Seller to the Buyer on each Gas Day
during the Invoice Month in accordance with Clause 10;
(c) any amounts due from the Seller to the Buyer pursuant to Clause 6(d) or from the Buyer to
the Seller pursuant to Clause 6(e);
(d) any other amount due and owing from one Party to the other Party under the terms of this
Agreement; and
(e) the net amount payable by the Buyer to the Seller or from the Seller to the Buyer after taking
account of all the foregoing matters in this Clause 11.1.
11.2 Payment
(a) Subject to Clause 11.5 in relation to an Invoice Dispute, the payor shall pay the sum set out in a
Monthly Invoice within 30 days of delivery of that Monthly Invoice.
(b) Payments to be made by the payor pursuant to Clause 11.2(a) shall be made by way of bank transfer
into the following accounts:
(i) in respect of payments to the Seller: [⚫]; and
(ii) in respect of payments to the Buyer: [⚫].
17 Note: For deliveries at the VTP. 18 Note: For the reverse flow GSA and Redelivery Point at Melendugno.
0086072-0000001 UKO1: 2000062057.9 13
11.3 Changes to Allocated Quantities
If, following delivery of a Monthly Invoice, the allocated quantities of gas referred to in Clause 10 are
subsequently adjusted such that the quantities of gas delivered under this Agreement and included in
that Monthly Invoice would be different if that Monthly Invoice were reissued:
(a) the amount payable in respect of that Monthly Invoice will be recalculated based on the
adjusted quantities; and
(b) the difference between the amount invoiced under the original Monthly Invoice and the
amount that would be payable under the adjusted Monthly Invoice will be added or subtracted
(as applicable) from the followıng Monthly Invoice, unless that adjustment is in respect of the
last Monthly Invoice under this Agreement in which case the Seller will immediately issue a
new invoice or credit note for the difference.
11.4 Failure to make payment
Subject to Clause 11.5 in relation to any amount which is the subject of an Invoice Dispute, if the
payor fails on the due date to make payment to the payee of any sum due under this Agreement, then
interest shall accrue thereon at a rate of one percentage point above the Agreed Interest Rate from the
date on which such payment is due until the date of payment, with interest compounded monthly.
11.5 Disputed amounts
(a) If all or part of any amount which is due for payment in accordance with this Agreement is the subject
of a Dispute between the Parties (an Invoice Dispute) then the Party disputing that amount shall give
notice (an Invoice Dispute Notice) to the other Party of the amount subject to Dispute and the reasons
for the Dispute, and the relevant Party shall pay all amounts not disputed.
(b) Following receipt of an Invoice Dispute Notice the Parties shall meet and in good faith discuss and
attempt to agree in writing upon a settlement of the Invoice Dispute. If the Invoice Dispute is not
resolved within 60 days of delivery of the Invoice Dispute Notice, then the Invoice Dispute may
thereafter be referred by either Party to an Expert for determination in accordance with Clause 21.
(c) Following the Decision of an Invoice Dispute by an Expert in accordance with Clause 21 or after any
earlier agreement in writing between the Parties, any amount so determined or so agreed to be due for
payment by a Party shall be paid by such Party in full together with interest at a rate of one percentage
points above the Agreed Interest Rate accrued from the due date of payment until the date of payment,
with interest compounded monthly.
12. WARRANTIES, REPRESENTATIONS AND COVENANTS
12.1 Buyer Representations and Warranties
The Buyer represents and warrants to the Seller that:
(a) it is a company incorporated in Switzerland and validly exists under the laws of Switzerland;
(b) it has the right, power and authority to enter into and perform its obligations under this
Agreement;
(c) it has taken all necessary corporate or other action to authorise the execution of, and
performance by it of, its obligations under this Agreement;
0086072-0000001 UKO1: 2000062057.9 14
(d) this Agreement constitutes obligations binding on the Buyer;
(e) neither the execution by the Buyer of this Agreement nor the performance by the Buyer of any
of its obligations under this Agreement will violate or conflict with:
(i) a provision in the constitutional documents of the Buyer;
(ii) a provision in an agreement or instrument which is binding on the Buyer; or
(iii) an order or judgment of a court, tribunal or governmental or regulatory body which is
binding on the Buyer; and
(f) it is not subject to any Insolvency Event.
12.2 Seller Representations and Warranties
The Seller represents and warrants to the Buyer that:
(a) it is a company incorporated in [⚫] and validly exists under the laws of [⚫];
(b) it has the right, power and authority to enter into and perform its obligations under this
Agreement;
(c) it has taken all necessary corporate or other action to authorise the execution of, and
performance by it of its obligations under this Agreement;
(d) this Agreement constitutes obligations binding on the Seller;
(e) neither the execution by the Seller of this Agreement nor the performance by the Seller of any
of its obligations under this Agreement will violate or conflict with:
(i) a provision in the constitutional documents of the Seller;
(ii) a provision in an agreement or instrument which is binding on the Seller; or
(iii) an order or judgment of a court, tribunal or governmental or regulatory body which is
binding on the Seller; and
(f) it is not subject to any Insolvency Event.
12.3 Seller warranty as to Gas
The Seller warrants to the Buyer that it has title to all quantities of Gas made available by it to the
Buyer in accordance with this Agreement at the Delivery Point and that such Gas is so made available
free of all Encumbrances and adverse claims.
12.4 Sanctions warranties
(a) Definitions
For the purpose of this Clause 12.4, the following terms will have the meaning given to them below:
Restricted Party means a Person that is listed on any Sanctions List, or is otherwise a target of
Sanctions, and does not benefit from an exemption to the extent that such exemption would remove
the effect of the applicable Sanction for purposes of the transactions carried out under this Agreement;
0086072-0000001 UKO1: 2000062057.9 15
Sanction or Sanctions means the economic or trade sanctions, embargoes, or restrictive measures
administered, enacted, or enforced by the Office of Foreign Assets Control (OFAC), the US
Department of State, the United Nations Security Council, the European Union or its Member States,
the United Kingdom (including Her Majesty's Treasury of the United Kingdom), or the Swiss State
Secretariat for Economic Affairs (as amended, updated or replaced from time to time);
Sanctions List means the Specially Designated Nationals and Blocked Persons List maintained by
OFAC; the Consolidated List of Financial Sanctions Targets maintained by Her Majesty's Treasury of
the United Kingdom; the consolidated list of persons, groups or entities subject to the European Union
Sanctions administered by the European External Action Service; or any similar list maintained by, or
public announcement of Sanctions designation made by, the United States, the European Union or its
Member States, the United Kingdom, the United Nations Security Council, or the Swiss State
Secretariat for Economic Affairs (as amended, updated or replaced from time to time).
(b) Seller's sanctions warranties
(i) The Seller represents and covenants to the Buyer that it will not, and it will procure that its
Affiliates will not, knowingly provide Gas to the Buyer or take any other action that would
subject the Buyer to criminal or civil liability under, or result in non-compliance with,
Sanctions applicable to such Person or result in such Person being designated as a Restricted
Party.
(ii) The Seller represents and covenants to the Buyer that neither it nor any of its Affiliates has
been designated as a Restricted Party under applicable Sanctions Laws, and that the Buyer
will not be subject to criminal or civil liability under, or non-compliance with, Sanctions
applicable to the Buyer or be designated as a Restricted Party, as a result of its relationship
with the Seller.
(c) Buyer's sanctions warranties
(i) The Buyer represents and covenants to the Seller that it will not, and it will procure that its
Affiliates will not, knowingly take any actions that would subject the Seller to civil or criminal
liability under, or non-compliance with, Sanctions applicable to the Seller or result in the
Seller being designated as a Restricted Party.
(ii) The Buyer represents and covenants to the Seller that neither it nor any of its Affiliates has
been designated as a Restricted Party, and that the Seller will not be subject to criminal or civil
liability under, or non-compliance with, Sanctions applicable to the Seller or be designated as
a Restricted Party, as a result of its relationship with the Buyer.
(d) No obligation to breach any lawful requirement
For the avoidance of doubt, no Party shall be obliged, pursuant to any provision of this Agreement, to
take any step which would result in that Party or any other Party (or any Affiliate of the same) being
subject to criminal or civil liability under, or non-compliance with, Sanctions requirements applicable
to any Party (or any Affiliate of the same).
12.5 Date and duration of warranties and representations
The warranties and representations in Clauses 12.1 to 12.4 are given at the Signing Date and shall be
repeated, and remain true and accurate and in force throughout the Contract Period as if given or made
on each day during the Contract Period by reference to the facts, matters and circumstances then
subsisting.
0086072-0000001 UKO1: 2000062057.9 16
12.6 Buyer covenants
The Buyer covenants with the Seller that, throughout the term of this Agreement and at no cost to the
Seller, the Buyer shall:
(a) obtain and maintain such Approvals as are required for the Buyer to perform under the terms
of this Agreement;
(b) notify the Seller as soon as reasonably possible if:
(i) any of the Approvals required by the Buyer are not granted, lapse and are not renewed,
or are cancelled or terminated or if any proceeding is initiated concerning any of the
Approvals required by the Buyer; and
(ii) in the Buyer's reasonable opinion such event will affect the Buyer's ability to perform
any of its obligations under this Agreement.
12.7 Seller covenants
The Seller covenants with the Buyer that, throughout the term of this Agreement and at no cost to the
Buyer, the Seller shall:
(a) obtain and maintain such Approvals as are required for the Seller to perform under the terms
of this Agreement;
(b) notify the Buyer as soon as reasonably possible if:
(i) any of the Approvals required by the Seller are not granted, lapse and are not renewed,
or are cancelled or terminated or if any proceeding is initiated concerning any of the
Approvals required by the Seller; and
(ii) in the Seller's reasonable opinion such event will affect the Seller's ability to perform
any of its obligations under this Agreement.
12.8 Mutual covenants
Each Party covenants to the other that:
(a) such Party will comply with all applicable Laws governing or relating to its performance under
this Agreement;
(b) without prejudice to Clause 12.8(a), the Party will comply with any REMIT obligations that
it may be subject to pursuant to the EU Regulation on Energy Market Integrity and
Transparency (No 1227/2011);
(c) such Party will maintain its existence and good standing and its qualifications to do business
in all jurisdictions where performance under this Agreement is required; and
(d) such Party will maintain its corporate authority to perform its obligations under this
Agreement.
0086072-0000001 UKO1: 2000062057.9 17
12.9 Anti-Bribery and Corruption Measures
The provisions of Schedule 2 (Anti-Bribery and Corruption Measures) will have effect as though set
out here in full. [NOTE: Schedule 2 is subject to further update in accordance with TAP's standard
anti-bribery and corruption provisions.]
13. MAINTENANCE
(a) The Seller shall promptly notify the Buyer upon becoming aware of any planned or unplanned
maintenance that may affect the Seller's ability to deliver Gas at the Delivery Point on a particular Gas
Day and the maximum quantity of Gas that the Seller is able to deliver on such Gas Day (a
Maintenance Notice).
(b) A Maintenance Notice must include the reasons for and the anticipated timing, duration, and effect of
the relevant maintenance. The Seller shall use all reasonable endeavours to mitigate the effect of any
maintenance on the performance of its obligations under this Agreement.
(c) The Seller will be excused from its obligation to deliver Gas to the extent set out in a Maintenance
Notice so long as:
(i) the Maintenance Notice is delivered not less than 30 days before the notified maintenance is
due to take place; and
(ii) the period of maintenance notified in that Maintenance Notice, when aggregated with the
period of all other maintenance for which the Seller has been entitled to relief under this
paragraph (c), does not exceed 20 Gas Days (whether in whole or in part) in aggregate over
the Contract Period.
14. FORCE MAJEURE
14.1 Definition
(a) An Event of Force Majeure means any act, event or circumstance, the occurrence of which:
(i) is beyond the reasonable control of the Party concerned;
(ii) prevents or delays, in whole or in part, the performance of any one or more of the obligations
of the Party concerned (save for payment) under this Agreement;
(iii) could not have been avoided, prevented or overcome by the Party concerned;
(iv) is not the direct or indirect result of action or inaction of the Party concerned; and
(v) is not the direct or indirect result of a breach by the Party concerned of any of its obligations
under this Agreement.
(b) Subject to satisfying the requirements of Clause 14.1(a), the following events and circumstances are
capable of constituting an Event of Force Majeure:
(i) loss of, serious accidental damage to, or inoperability of any part of TAP Transportation
System;
(ii) fire, flood, atmospheric disturbance, lightning, storm, storm warnings, typhoon, tornado, tidal
waves, earthquake, landslide, perils of the sea, soil erosion, subsidence, washout, epidemic or
other acts of God;
0086072-0000001 UKO1: 2000062057.9 18
(iii) war (declared or undeclared), riot, terrorism, civil and military disturbances, acts of the public
enemy, piracy, blockades, insurrections, sabotage and threats of such action;
(iv) any change in Law or in any regulation, order or demand of an international, national, local,
authority or agency after the Signing Date, or a change in the interpretation or application of
any existing Law or of any existing regulation, order or demand of an international, national,
local, authority or agency after the Signing Date, except to the extent that such Law,
regulation, order or demand:
(A) constitute remedies or sanctions lawfully imposed as a result of such Party's
non-compliance; or
(B) is of general applicability; or
(v) a strike, lock-out, labour dispute or any other kind of industrial disturbance of a
general or political nature (and not involving solely the employees of such Party).
14.2 Notification
A Party claiming relief pursuant to this Clause 14 (the Affected Party) shall:
(a) notify the other Party as soon as possible with reasonable details regarding the Event of Force
Majeure, including, to the extent possible, an estimate of the time required to rectify or
overcome the Event of Force Majeure (where possible);
(b) provide the other Party with regular reports on the progress of any remedial measures and
such other information as the other Party may request;
(c) give notice to the other Party forthwith upon the cessation of the Event of Force Majeure; and
(d) take all reasonable steps to mitigate and overcome the effects of an Event of Force Majeure.
14.3 Effect of an Event of Force Majeure
(a) The Affected Party will be relieved from liability under this Agreement as a result of an Event
of Force Majeure (and subject to the provisions of this Clause 14) to the extent that, by reasons
of Force Majeure, it fails to perform any of its obligations under this Agreement, or is
otherwise in breach of any of its obligations under this Agreement.
(b) The term of this Agreement shall not be extended by reason of any Event of Force Majeure.
(c) For the avoidance of doubt, an obligation to pay money will not be suspended or excused by
an Event of Force Majeure.
14.4 Mitigation
Any Party claiming Force Majeure under this Clause 14 shall use all reasonable endeavours to mitigate
the effect of the Force Majeure in respect of such Party, including, without limitation, cooperating
with the other Party to develop and implement a plan of remedial action and reasonable alternative
measures to remedy the effects of such Force Majeure.
0086072-0000001 UKO1: 2000062057.9 19
15. ASSIGNMENT AND TRANSFER
15.1 Restriction on assignment and transfer
A Party shall not assign or transfer any of its rights or obligations under this Agreement without the
prior written consent of the other Party.
16. CONFIDENTIALITY
(a) Except as provided in this Clause 16, the Parties shall keep confidential and shall not, without the prior
written consent of the other Party, disclose Confidential Information during the term of this Agreement
and for a period of three Years after the Termination Day to any Third Party, save that the Parties shall
be permitted to disclose the existence of this Agreement.
(b) A Party may disclose Confidential Information to the extent such information:
(i) is already known to such Party as at the date of disclosure to it under this Agreement;
(ii) is already in possession of the public or becomes available to the public other than through
the act or omission of such Party or of any other Person to whom Confidential Information is
disclosed pursuant to this Agreement;
(iii) is required to be disclosed by such Party and/or an Affiliate of such Party by applicable Law,
a court of competent jurisdiction or a competent judicial, governmental, supervisory or
regulatory body, or the rules of a stock exchange on which the securities of the Party or its
Affiliate are listed, provided that such Party shall use reasonable endeavours to give the other
Party prompt notice before such disclosure;
(iv) is acquired independently from a Third Party that represents that it has the right to disseminate
such information at the time it is acquired by such Party; or
(v) is developed by such Party independently of the Confidential Information received from the
other Party.
(c) A Party may disclose Confidential Information without the other Party's prior written consent to an
Affiliate if and to the extent such disclosure is necessary for the purposes of performing this Agreement
and in such a case the disclosing Party is responsible for ensuring that the Affiliate complies with the
terms of this Clause 16 as if it were a party to this Agreement.
(d) A Party may disclose Confidential Information without the other Party's prior written consent to any
of the following Persons if and to the extent such disclosure is necessary for the purposes of performing
this Agreement:
(i) employees, officers and directors of the disclosing Party or an Affiliate in order to enable such
Party and/or an Affiliate to perform its obligations under this Agreement;
(ii) a professional adviser retained by such Party or an Affiliate in order to enable such Party
and/or an Affiliate to perform its obligations under this Agreement;
(iii) a bona fide prospective transferee of a Party's rights and/or obligations under this Agreement,
and any professional adviser retained by such prospective transferee, in order to enable such
transferee to assess such Party's rights and obligations under this Agreement;
0086072-0000001 UKO1: 2000062057.9 20
(iv) any bank or financial institution providing finance to such Party and/or an Affiliate, including
any professional adviser retained by such bank or financial institution; and
(v) in the case of the Buyer, to its direct shareholders as required for the purposes of facilitating
the exercise of its rights and performance of its obligations under this Agreement or for other
operational reasons in connection with the TAP Transportation System,
and, in the case of a disclosure proposed to be made pursuant to Clauses 16(d)(iii), 16(d)(iv) or
16(d)(v), the disclosing Party shall first obtain a confidentiality undertaking from the Person to whom
the Confidential Information is proposed to be disclosed on terms substantially the same as those
contained in this Clause 16 (or otherwise on industry standard terms if applicable), and such Party
shall use reasonable endeavours to ensure that such Person complies with the terms of such
undertaking.
(e) The Parties agree that any Party may seek injunctive relief and/or specific performance in respect of
that Party's rights and interests and/or the covenants and obligations of the other Party under this
Clause 16.
17. TAXES AND CUSTOMS OBLIGATIONS
(a) The Contract Price is exclusive of any VAT.
(b) The Seller shall take full responsibility for clearing customs (as required) relating to the importation
of Gas into, or transit of Gas through, any countries upstream of the Delivery Point and the Seller shall
pay or procure the payment of all Tax arising in respect of Gas sold under this Agreement upstream
of the Delivery Point and shall indemnify the Buyer against any liability which the Buyer incurs in
respect of such Tax or customs.
(c) The Buyer shall pay or procure the payment of all Tax arising downstream of the Delivery Point and
shall indemnify the Seller against any liability which the Seller incurs in respect of such Tax.
(d) For these purposes, the VTP will be deemed to be physically located entirely in Greek territory.
18. LIABILITIES AND LIMITATIONS
18.1 General
(a) Other than in relation to Off-Specification Gas, each Party waives all rights in respect of, and shall
indemnify, defend and keep indemnified the other Party and its respective directors, officers,
employees, representatives, agents, contractors and licensees (in this Clause 18.1(a), each an
Indemnified Party) from and against all costs, losses, damages, claims, liabilities and/or expenses of
any kind in respect of loss of or damage to property of such indemnifying Party or death or injury to
the personnel of such indemnifying Party to the extent caused by, or arising from or in connection
with the performance or breach of this Agreement, except to the extent caused by, or arising from or
in connection with an Indemnified Party's Wilful Misconduct and Gross Negligence.
(b) Other than in relation to Off-Specification Gas, each Party shall indemnify, defend and keep
indemnified the other Party and their respective directors, officers, employees, representatives, agents,
contractors and licensees (in this Clause 18.1(b), the Indemnified Parties) from and against all costs,
losses, damages, claims, liabilities and/or expenses of any kind incurred or suffered by such
Indemnified Parties in respect of any loss of or damage to property of any Third Party or death or
injury to any Third Party who is a natural person to the extent caused by the indemnifying Party and/or
its respective directors, officers, employees, representatives, agents, contractors and licensees and
0086072-0000001 UKO1: 2000062057.9 21
arising out of or in relation to this Agreement, except to the extent caused by an Indemnified Party's
Wilful Misconduct and Gross Negligence.
(c) Save as expressly provided in this Agreement or if caused by a Party's Wilful Misconduct and Gross
Negligence, neither Party shall be liable to the other under this Agreement for or in respect of any
Consequential Loss.
(d) For the purpose of this Agreement, and operations conducted under this Agreement, Consequential
Loss means any liability whatsoever (whether in contract (by way of indemnity or otherwise), tort
(including negligence), breach of statutory duty, restitution or otherwise) for any of the following types
of loss, damage, injury or expense (whether arising in the normal course of business or otherwise):
(i) pure economic loss;
(ii) damage, cost or liability arising out of any delay, reduction or loss of ability to produce, store,
transport, process or dispose of the Gas delivered or requested to be delivered under this
Agreement or any products derived therefrom;
(iii) loss or deferment of profits, opportunity, use, bargain or expectation;
(iv) loss or depletion of:
(A) business;
(B) revenue;
(C) contract;
(D) goodwill and/or business opportunity; or
(E) anticipated earnings or savings;
(v) any increased costs of working or wasted expenditure;
(vi) loss, damage, injury or expense caused by the relevant Party's misuse of the Gas delivered or
to be delivered under this Agreement; or
(vii) any special, indirect or consequential damage or loss of any nature whatsoever,
even if such loss, damage, injury or expense is foreseeable and/or the relevant Party has been advised
of or is aware (or reasonably should have been aware) of the possibility of the other Party incurring or
suffering such losses, and each paragraph of this Clause shall be considered independently without
applying the ejusdem generis rule.
18.2 Mitigation of losses
Each Party shall use reasonable efforts to mitigate or avoid any loss or damage caused by the failure
of the other Party to meet its obligations under this Agreement.
18.3 Exclusive remedies
The remedies set out in this Agreement in respect of a breach by a Party shall be the exclusive remedies
of the Parties in respect of such breach and shall be exhaustive of any other remedies howsoever arising
(whether at law, in equity, in tort (including negligence), breach of statutory duty, restitution or
otherwise), save that this Clause 18.3 shall not apply to a breach of Clause 16.
0086072-0000001 UKO1: 2000062057.9 22
19. TERMINATION
19.1 Automatic termination
Unless extended by mutual agreement between the Parties, this Agreement will automatically
terminate at the end of the Gas Day which ends on the Termination Day.
19.2 Early termination
(a) Either Party may terminate this Agreement by giving a Termination Notice to the other Party:
(i) if the other Party commits a material breach of any of the material terms of this Agreement
(other than breach of a term requiring the payment of money by it) in which case the
Termination Notice shall set out the particulars of the breach in reasonable detail and require
the breach to be remedied within a 90 day period;
(ii) if the other Party is the subject of an Insolvency Event; or
(iii) if the Sanctions warranties given by the other Party in Clause 12.4(b) or 12.4(c) (as applicable)
is or was untrue in any respect at any time during the Contract Period.
(b) The Buyer may terminate this Agreement by giving a Termination Notice to the Seller if:
(i) the Seller fails to deliver 50 per cent. of the Daily Requested Quantities on average over a 15
Gas Day period;
(ii) the Seller fails to provide credit support when required in accordance with Clause 8; or
(iii) the Seller breaches any provision of Schedule 2 (Anti-Bribery and Corruption Measures) or
any representation given by the Seller in Schedule 2 (Anti-Bribery and Corruption Measures)
is or was untrue in any respect at any time during the Contract Period.
(c) The Seller may terminate this Agreement by giving a Termination Notice to the Buyer if the Buyer
fails for any reason to cure late payment of an amount invoiced under a Monthly Statement within 90
days from its due date where the aggregate of the amounts that the Buyer has failed to pay and that are
outstanding exceeds five per cent. of the relevant Monthly Statement.
19.3 Insolvency
An Insolvency Event means, in respect of a Party, that a Party:
(a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability
generally to pay its debts as they become due;
(c) makes a general assignment, arrangement or composition with or for the benefit of its
creditors;
(d) institutes or has instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency Law or other similar Law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation and if
such proceeding or petition is not withdrawn, dismissed, discharged, stayed or restrained
within 30 days of its institution or presentation;
0086072-0000001 UKO1: 2000062057.9 23
(e) has a resolution passed for its winding-up, official management or liquidation (other than
pursuant to a consolidation, amalgamation or merger);
(f) seeks or becomes subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for it or for all or substantially
all its assets;
(g) has a secured party take possession of all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process levied, enforced or sued on or
against all or substantially all its assets;
(h) causes or is subject to any event with respect to it which, under the applicable Laws of any
jurisdiction, has an analogous effect to any of the events specified in Clauses 19.3(a) to 19.3(g)
(inclusive); or
(i) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts referred to in Clauses 19.3(a) to 19.3(h) (inclusive).
19.4 Effect of termination
Each Party's rights and obligations will cease immediately on termination of this Agreement pursuant
to Clause 19.1 or 19.2, except that:
(a) the Surviving Provisions shall continue in full force and effect;
(b) if a Party breaches its obligations under this Agreement prior to termination, termination of
this Agreement shall not affect a Party's right to claim for that breach pursuant to this
Agreement and each Party must continue to comply with each provision of this Agreement
necessary for the claiming Party to enforce such a right; and
(c) without prejudice to Clause 18, termination of this Agreement shall be without prejudice to
any rights, obligations and remedies arising out of or in connection with this Agreement which
have vested, matured or accrued to any Party up to the Termination Day.
20. NOTICES
20.1 Method of giving a notice or other communication
(a) Except as provided in Clause 5(f) or in respect of operational communications pursuant to Clause 20.5
or written communications served pursuant to Clause 21, a notice, permission or other communication
under or in connection with this Agreement must be:
(i) in writing;
(ii) in English;
(iii) signed by or on behalf of the Person giving it; and
(iv) delivered by hand or sent by recorded delivery to the relevant Party at the postal address set
out in Clause 20.2 (or if otherwise notified by the relevant Person under Clause 20.7 to such
other contact and postal address as has been so notified).
(b) A notice, permission or other communication under or in connection with this Agreement may in
addition be emailed to the email address set out in Clause 20.2 (or such other email address as may be
0086072-0000001 UKO1: 2000062057.9 24
notified by the relevant Person under Clause 20.7) for informational purposes only, but such email
alone shall not constitute the service of a valid notice under this Agreement.
20.2 Addresses
The contact, postal address and email address for each Party is (unless otherwise notified under Clause
20.7):
(a) in the case of the Seller as follows:
Name: [⚫]
Address: [⚫]
Email: [⚫]
Facsimile: [⚫]
Attention: [⚫]
(b) in the case of the Buyer as follows:
Name: Trans Adriatic Pipeline AG
Address: Lindenstrasse 2, 6340 Baar, Switzerland
Email: [⚫]
Facsimile: [⚫]
Attention: [⚫]
20.3 Time that notice or communication is deemed given
Unless there is evidence that it was received earlier, a notice or other communication that complies
with Clauses 20.1 or 20.5 is deemed given:
(a) if delivered by hand, at the time of delivery, except as provided in Clause 20.4;
(b) if sent by recorded delivery post, at 09:00 on the third Business Day after the day of posting;
(c) if sent by email, at the time of receipt by the sender of an automatic delivery confirmation
notice, except as provided in Clause 20.4.
20.4 Effect of delivery by hand or email during non-Business hours
Subject to Clause 20.1(b),
(a) if deemed delivery under Clause 20.3 of a notice or other communication delivered by hand
or sent by email occurs before 09:00 on a Business Day, the notice or other communication is
deemed delivered at 09:00 on that Business Day; and
0086072-0000001 UKO1: 2000062057.9 25
(b) if deemed delivery under Clause 20.3 of a notice or other communication delivered by hand
or sent by email occurs after 18:00 on a Business Day or on a day which is not a Business
Day, the notice or communication is deemed to have been given at 09:00 on the next Business
Day.
20.5 Operational communications
Subject to Clause 5(f), communications or notices between the Parties, given for operational purposes,
including pursuant to Clauses 4, 5, 6 or 7 shall be given by email to the following email addresses and,
if required, the Parties shall use the following telephone numbers and back-up in respect of such
communications (to be followed subsequently by email):
(a) Seller:
Email Address: [⚫]
Telephone Number: [⚫]
Fax: [⚫]
(b) Buyer:
Email Address: [⚫]
Telephone Number: [⚫]
20.6 Relevant time of day
In this Clause 20, a reference to time is to local time in the country in which the recipient of the notice
or communication is located, as set out in Clause 19.2.
20.7 Notification of change in notice details
A Party may notify the other Party of a change to any of the details relevant to that Party referred to
in Clause 20.2. The notice must comply with the terms of Clause 20.1 and must state the date on
which the change is to occur. That date must be on or after the fifth Business Day after the date on
which the notice is delivered.
21. EXPERT DETERMINATION OF DISPUTES
(a) Any Dispute to be referred to an expert for determination pursuant to the terms of this Agreement shall
be submitted to administered expert proceedings in accordance with the Expert Rules of the
International Chamber of Commerce (the ICC Expert Rules), which, save as modified by this Clause
21, shall apply to the selection and appointment of any expert and/or the administration of any expert
proceedings as appropriate.
(b) Commencement
(i) Any Dispute to be referred to an Expert for determination pursuant to this Clause 21 shall be
done so by either Party (the Applicant) giving written notice to the other Party (an Expert
Notice) containing a brief statement describing the nature and circumstances of the Dispute.
For the avoidance of doubt, an Invoice Dispute Notice shall not constitute an Expert Notice
for the purposes of Clause 21.
0086072-0000001 UKO1: 2000062057.9 26
(ii) For any such Dispute, such determination shall be conducted by an expert appointed pursuant
to this Clause 21 (such Person being an Expert).
(iii) Within seven days of delivery of an Expert Notice, each Party shall propose an Expert that
meets the criteria set out in Clause 21(b)(iv), following which the Parties shall seek to agree
on the selection of an Expert within 30 days following delivery of the Expert Notice.
(iv) The criteria for selection of an Expert are that:
(A) he or she is available and willing to act upon the terms of this Clause 21 within
seven days of appointment;
(B) he or she is a recognised independent natural person possessing expert
knowledge applicable to the matters to be resolved by an Expert as set out in
the Expert Notice;
(C) he or she is sufficiently fluent in English to conduct the Expert determination
and deliver the Decision in English; and
(D) he or she is independent of the Parties and has no conflict of interest in acting
as an Expert.
(v) Following agreement on the selection of an Expert or if the Parties do not agree on the
selection of an Expert pursuant to Clause 21(b)(iii), the Applicant may apply in writing to the
ICC to appoint the selected Expert (where agreed by the Parties) or to select and appoint an
Expert (where no agreement has been reached) to resolve the Dispute (the Application). The
Application shall enclose a copy of this Agreement, a statement describing the nature and
circumstances of the Dispute and, if the Parties have not agreed on the selection of an Expert
pursuant to Clause 21(b)(iii), any matters that the Applicant wishes to bring to the attention of
the ICC for the purposes of selecting an Expert (including the required criteria for selecting
an Expert as set out in Clause 21(b)(iv)). The Application shall be simultaneously copied to
the other Party.
(vi) Within 30 days of service of the Application, the other Party shall send to the ICC, with a
simultaneous copy to the Applicant, a reply to any matters raised by the Applicant in the
Application (the Reply).
(c) Appointment of Expert
(i) The Parties shall use reasonable endeavours to procure that the ICC appoints the Expert within
14 days of service of the Reply, or as soon as reasonably practicable thereafter.
(ii) Without prejudice to a Party's entitlement to challenge the appointment of an Expert pursuant
to Clause 21(h) and except where selected by the Parties, the decision of the ICC as to the
identity of the Expert shall be final.
(iii) Prior to appointment, the Expert shall provide the Parties and the ICC with a written résumé
of his or her past and present professional positions, shall agree in writing a fee rate
conforming to the ICC Expert Rules and shall sign a declaration to the effect that there are no
circumstances known to him or her likely to give rise to justifiable doubts as to his or her
independence and impartiality.
0086072-0000001 UKO1: 2000062057.9 27
(iv) The Expert shall assume a continuing duty to disclose any such circumstances to the ICC and
to the Parties, if such circumstances should arise after the date of such declaration and before
the Expert determination is concluded.
(v) The Expert shall act as an expert and not as an arbitrator.
(d) Further written submissions
The filing of written submissions in addition to the Application and the Reply shall be upon the
application of a Party and at the discretion of the Expert.
(e) Hearing
(i) Unless otherwise agreed by the Parties, the Expert shall fix a date, time and venue for a
hearing, which shall be no later than 60 days after the latest date on which any written
submission may be served pursuant to Clause 21(d), or no later than 60 days after the
appointment of the Expert, if no further written submissions are to be filed.
(ii) Otherwise, the Expert may adopt such procedures and may conduct the Expert determination
in such manner as he or she considers appropriate.
(f) The Decision
(i) The Expert shall endeavour to issue his or her decision in writing (the Decision) within 30
days of the hearing, or as soon as reasonably practicable thereafter.
(ii) The Expert shall give written reasons for the Decision to the Parties within 30 days of the
hearing, or as soon as reasonably practicable thereafter.
(iii) The Decision shall (unless fraud or manifest error is shown by either/any of the Parties) be
final and binding on the Parties.
(iv) All matters under this Clause 21 must be conducted, and the Decision and written reasons for
the Decision shall be written, in the English language.
(g) Communications and time limits
(i) All communications between the Parties concerning the Expert determination shall be copied
to the ICC and, once appointed, to the Expert.
(ii) All communications shall be by fax and/or email, with a hard copy following by post.
(iii) Time limits herein may be extended only by written agreement between the Parties, or by the
Expert.
(iv) For the avoidance of doubt, Clause 20.1 of this Agreement shall not apply to written
submissions issued pursuant to this Clause 21. Such submissions shall be in English and shall
be delivered by fax and/or email, with a hard copy following by hand or by recorded delivery,
to the relevant Party at the contact details provided in Clause 20.2 (or if otherwise notified by
the relevant Person under Clause 20.7 to such other contact and postal address as has been so
notified). Any reference to Clause 20.1 in Clause 20 shall in the context of any
communications issued pursuant to this Clause 21 be deemed to refer to this Clause (g)(iv)
instead.
(h) Challenges
0086072-0000001 UKO1: 2000062057.9 28
(i) An Expert may be challenged by either Party if circumstances exist that give rise to justifiable
doubts as to his or her impartiality or independence. In such circumstances the challenge shall
be brought, by written notice to the ICC copied to the other Party, within 14 days of the
appointment of the Expert or within 14 days of the challenging Party becoming aware of the
circumstances giving rise to the challenge.
(ii) Unless the challenged Expert withdraws, or whichever of the Parties has not brought the
challenge agrees to the challenge, within 14 days of the date of the challenge, the ICC shall
decide the challenge and, if appropriate, shall appoint a replacement Expert.
(i) Costs
(i) The costs of the Expert determination shall be in accordance with the ICC Expert Rules and
shall be borne in such proportions as the Expert shall determine, in his or her absolute
discretion.
(ii) The Parties shall bear their own legal and other costs incurred in connection with the Expert
determination.
(j) Confidentiality
The Expert determination and all information and documents provided for the purpose of the Expert
determination, and the Decision, shall be, and shall remain, private and confidential, unless agreed in
writing by both Parties, or required by Law.
22. NEGOTIATION AND ARBITRATION
(a) In the event of any Dispute (other than a Dispute required to be referred to expert determination under
Clause 21 of this Agreement), the Parties shall endeavour to resolve the Dispute by negotiation, and
shall within ten days of service of a written notice from one Party to the other Party (a Dispute Notice),
hold a meeting (a Dispute Meeting) in an effort to resolve the Dispute. Each Party is obliged to send
a Representative who has authority to settle the Dispute to attend the Dispute Meeting. If the Parties
do not resolve a Dispute within 30 days after service of the relevant Dispute Notice, whether or not a
Dispute Meeting has been held, such Dispute shall be finally settled by arbitration under the Rules of
Arbitration of the International Chamber of Commerce (the ICC Arbitration Rules), which, save as
modified by this Clause, are deemed to be incorporated by reference into this Clause. Capitalised
terms used in this Clause 22 and not otherwise defined in this Agreement have the meanings given to
them in the ICC Arbitration Rules.
(b) The number of arbitrators shall be three. The claimant (or if more than one claimant, the claimants
jointly) shall nominate one arbitrator and the respondent (or if more than one respondent, the
respondents jointly) shall nominate one arbitrator, in each case in accordance with the ICC Arbitration
Rules. The third arbitrator, who will act as chairperson of the arbitral tribunal, shall be nominated
jointly by the two co-arbitrators, provided that if the third arbitrator has not been so nominated within
30 Business Days of the time-limit for service of the answer, the third arbitrator shall be appointed by
the ICC Court.
(c) The seat, or legal place, of arbitration shall be Vienna, Austria.
(d) The language to be used in the arbitral proceedings shall be English.
(e) The relevant provisions of Articles 3 and 9 of the IBA Rules on the Taking of Evidence in International
Arbitration shall apply to the document production phase of any arbitration commenced pursuant to
this Clause 22.
0086072-0000001 UKO1: 2000062057.9 29
(f) The Parties undertake as a general principle to keep confidential all awards and orders (including
interim, interlocutory and final orders) in any arbitration under this Clause 22, together with all
materials in the arbitration created for the purpose of the arbitration and all other documents produced
by another party in the proceedings not otherwise in the public domain, save and to the extent that
disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or
challenge an award in legal proceedings before a state court or other legal authority.
23. GOVERNING LAW
This Agreement (including the arbitration agreement contained in it) and all non-contractual
obligations arising in any way whatsoever out of or in connection with this Agreement are governed
by, construed and take effect in accordance with English law, without regard to the rules on conflicts
of laws. The Vienna Convention on the International Sale of Goods, 1980, and the Convention on the
Limitation Period in the International Sale of Goods, 1974, are expressly disapplied.
24. MISCELLANEOUS PROVISIONS
24.1 Third Party Rights
No Person who is not a Party to this Agreement shall have any rights under this Agreement pursuant
to the Contracts (Rights of Third Parties) Act 1999.
24.2 Entire Agreement
(a) This Agreement sets out the entire agreement between the Parties and supersedes any previous
agreement or arrangement between the Parties relating to the subject matter of this Agreement.
(b) Each Party acknowledges and agrees that it has not relied on or been induced to enter into this
Agreement by a warranty, statement, representation or undertaking which is not expressly included in
this Agreement.
(c) No Party has any claim or remedy in respect of a warranty, statement, misrepresentation (whether
negligent or innocent) or undertaking made to it by or on behalf of the other Party in connection with
or relating to the subject matter of this Agreement and which is not expressly included this Agreement.
(d) Nothing in this Clause 24.2 limits or excludes liability arising as a result of fraud or Wilful Misconduct
and Gross Negligence.
24.3 Variation
A variation of this Agreement is valid only if it is in writing and signed by the Parties or their duly
authorised Representatives.
24.4 Waiver
Failure to exercise, or a delay in exercising, a right or remedy provided by this Agreement or by Law
does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single
or partial exercise of a right or remedy provided by this Agreement or by Law prevents the further
exercise of the right or remedy or the exercise of another right or remedy. A waiver of a breach of
this Agreement does not constitute a waiver of a subsequent or prior breach of this Agreement.
0086072-0000001 UKO1: 2000062057.9 30
24.5 Invalidity
If a provision of this Agreement is found to be illegal, invalid or unenforceable, then to the extent it is
illegal, invalid or unenforceable, that provision will be given no effect and will be treated as though it
were not included in this Agreement, but the legality, validity or enforceability of the remaining
provisions of this Agreement will not be affected.
24.6 No partnership or agency
Nothing in this Agreement shall constitute a partnership between the Seller and the Buyer or constitute
either as agent of the other for any purpose whatsoever and neither shall have authority or power to
bind the other or to contract in the name of or create liability against the other in any way or for any
purpose.
24.7 Further assurance
Each Party shall, at its own cost, execute all documents and do all acts and things as the other Party
reasonably requires for the purpose of giving such other Party the full benefit of all the provisions of
this Agreement.
24.8 Reasonable information
Each Party shall, during the term of this Agreement, give to the other Party all information as may
reasonably be requested to enable each Party to perform its obligations under this Agreement.
24.9 Waiver of immunity
Each Party recognises and acknowledges that this Agreement forms a commercial transaction, and
that its rights and obligations under this Agreement are of a commercial and not a governmental nature.
To the fullest extent not prohibited by Law, each of the Parties hereby irrevocably waives for itself
and its assets any and all immunities from jurisdiction, from enforcement and for any other purpose
whatsoever.
24.10 Counterparts
This Agreement may be entered into in any number of counterparts and either Party may enter into
this Agreement by executing any counterpart. A counterpart constitutes an original of this Agreement
and all executed counterparts together have the same effect as if each Party had executed the same
document.
24.11 [Rights and Obligations under the GTA
The rights and obligations of the Parties under any Gas Transportation Agreement shall not be affected
by this Agreement or by the performance or non-performance by either Party of the terms of this
Agreement.]19
19 Only applicable for deliveries at the VTP – no GTA with TAP is required for delivery at Melundugno or the Redelivery Point.
0086072-0000001 UKO1: 2000062057.9 31
SCHEDULE 1
BACK-UP NOMINATION, RENOMINATION AND CONFIRMATION NOTICES
[TAP to provide forms of these notices.]
0086072-0000001 UKO1: 2000062057.9 32
SCHEDULE 2
ANTI-BRIBERY AND CORRUPTION MEASURES
PART 1
ANTI-BRIBERY AND CORRUPTION PROVISIONS
1. Definitions
In this Schedule 2:
Code of Conduct means the Buyer's "Code of Conduct" policy available at https://www.tap-
ag.com, as may be revised by the Buyer from time to time.
Prohibited Conduct means any one or more of the following actions:
(a) the offering, giving, receiving or soliciting, directly or indirectly, anything of value to
influence improperly the actions of another person;
(b) any act or omission, including a misrepresentation, that knowingly or recklessly misleads, or
attempts to mislead, a person to obtain a financial or other benefit or to avoid an obligation;
(c) impairing or harming, or threatening to impair or harm, directly or indirectly, any person or
the property of any person to influence improperly the actions of a person;
(d) entering into an arrangement with one or more other persons designed to achieve an improper
purpose, including influencing improperly the actions of another person;
(e) deliberately destroying, falsifying, altering or concealing evidence which is material to an
investigation, or threatening, harassing or intimidating any person to prevent it from disclosing
its knowledge of matters relevant to an investigation or from pursuing an investigation; or
(f) engaging in or facilitating Money Laundering or Terrorist Financing, each as defined in
Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005.
2. Compliance with Italian Legislative Decree no. 231/01
(a) The Seller represents and warrants to the Buyer that it is aware of:
(i) the anti-corruption principles stated in international conventions and Italian legislation; and
(ii) the provisions of the Italian Legislative Decree no. 231/01
(the Legislation on Company Liability).
(b) The Seller is aware of the fundamental and essential importance that the Buyer reserves to the
Legislation on Company Liability and the Seller therefore guarantees:
(i) that all declarations made to the Buyer in view of and within the context of the signing of this
Agreement are truthful, complete, clear and not misleading;
(ii) that it is aware that the Buyer has adopted an Organisation, Management and Control model
in compliance with Italian Legislative Decree no. 231/01, (Model 231) (a copy of the relevant
sections of the Model 231 is set out in Part 2 of this Schedule 2);
0086072-0000001 UKO1: 2000062057.9 33
(iii) that it shall not violate any provision stated in the Model 231 and that, during the performance
of the Agreement, it shall apply similar principles to those provided for in the Model 231 and
that it has given its directors, employees and/or partners instructions aimed at preventing the
commission, including the attempted commission, of the conduct sanctioned by the provisions
of the Italian legislative Decree no.231/01 and more generally by the Legislation on Company
Liability, for the entire duration of the Agreement; and
(iv) that it will ensure that its personnel respect the obligations stated above, undertaking to include
the clauses substantially similar to those stated above in the subcontracts and sub-supply
agreements signed in view of the performance of the Agreement.
(c) The Seller recognises that the failure to comply, even partially, with the declarations and obligations
stated above shall constitute a material breach of this Agreement and shall entitle the Buyer to
terminate the Agreement. In case of termination of this Agreement by the Buyer pursuant to this sub-
paragraph, no compensation related to the performance of this Agreement shall be due to the Seller.
(d) In the event of the disclosure of any information from which the non-compliance stated above may
reasonably be deduced, the Buyer shall have the power to suspend the performance of the
Agreement in awaiting verifications or legal outcomes by sending a registered letter containing a brief
indication of the information that has been disclosed. If this information is taken from the press, the
Buyer may exercise the abovementioned power once the information is confirmed in a formal deed by
a judicial authority and/or is confirmed in another manner by a judicial authority.
(e) If the Buyer decides to exercise its rights in accordance with the previous paragraph:
(i) all the additional expenses and costs connected with the exercising of these rights shall be
charged to the Seller; and
(ii) the Seller shall be obliged to hold the Buyer harmless against any third-party action deriving
or consequent to the aforesaid non-compliance.
(f) The Seller shall keep the Buyer promptly informed on an on-going basis as to the initiation, progress
and disposition of any investigations or proceedings relating to any matter connected to the Seller's
compliance with any anti-bribery or anti-corruption requirement or any other crimes under Legislative
Decree no. 231/01, whether in respect of this Agreement or otherwise, or in respect any act or omission
by the Seller or, to the best of its knowledge, by any person engaged by it in connection with the
Agreement, including its personnel, Affiliates, directors, officers, employees, agents, joint venture
partners or representatives, that may constitute a breach of the Model 231. Any such reports shall be
reported to [email protected].
3. General
(a) The Seller shall display a strong and clear commitment to doing business in a clear, transparent and
ethical manner and shall demonstrate that commitment through its day to day performance of this
Agreement.
(b) The Seller acknowledges that it has been provided with a copy of the Buyer's Code of Conduct. The
Buyer may from time to time provide the Seller with revised versions of the Code of Conduct.
(c) The Seller shall perform its obligations under this Agreement in accordance with the principles set out
in the Code of Conduct and all applicable Law related to those principles.
0086072-0000001 UKO1: 2000062057.9 34
4. Internal control system
The Seller warrants that it has in place a system of internal controls to prevent any Prohibited Conduct
from occurring in connection with this Agreement, to detect any Prohibited Conduct which has
occurred and to ensure the correct recording of financial and other information concerning its
operations and/or activities in connection with this Agreement. The Buyer shall be entitled to rely on
the adequacy and effectiveness of the Seller's internal control framework.
5. Audit
The Seller shall at its own cost and upon reasonable notice provide the Buyer, and any nominated
representative of the Buyer, with access to its relevant Affiliates, personnel, third parties, facilities,
warehouses and offices directly or indirectly serving the Seller's operations and activities in connection
with this Agreement and the books, records and other information relating to the Seller's operations
and activities in connection with this Agreement, for the purposes of assessing compliance with this
Schedule 2. The Buyer and its nominated representatives shall have the right to make and retain copies
of such books, records and information for purposes in connection with this Schedule 2. The Seller
must retain such booked, records and information for a period of 10 years after the termination or
expiry of this Agreement.
The Seller shall co-operate fully, and shall procure that its personnel, Affiliates, directors, officers,
employees, agents, joint venture partners or representatives, cooperate fully, in any investigation of a
potential breach of this Schedule 2.
6. Seller fully responsible
The Buyer shall in no circumstances be:
(a) responsible in any way for ensuring that the Seller comply with this Schedule 2 and applicable
Law; or
(b) liable for, or in connection with, any anti-bribery or anti-corruption requirements specified in
this Agreement or under applicable Law or any consequences of any non-compliance with
those requirements.
7. Representations and warranties
(a) The Seller represents, warrants and covenants on an on-going and unlimited basis:
(i) neither it nor anyone engaged by it in connection with this Agreement, including any of its
personnel, Affiliates, directors, officers, employees, agents, joint venture partners or
representatives has (i) violated nor is in violation of any provision of the US Foreign Corrupt
Practices Act 1977 or the UK Bribery Act 2010; or (ii) violated nor is in violation of any
applicable anti-bribery or anti-corruption law or regulation enacted in any jurisdiction,
whether in connection with or arising from the OECD Convention Combating Bribery of
Foreign Public Officials in International Business Transactions or otherwise; or (iii) engaged
or is engaged in any Prohibited Conduct;
(ii) no loan, offer, advantage or benefit of any kind has been given, made, promised to be made,
requested, agreed to be received or accepted, or authorised to be made, given or received,
directly or indirectly, by it, or anyone engaged by it in connection with this Agreement,
including any of its personnel, Affiliates, directors, officers, employees, agents, joint venture
partners or representatives, in respect of any governmental entity or authority or official of
any governmental entity or authority;
0086072-0000001 UKO1: 2000062057.9 35
(iii) neither it nor anyone engaged by it in connection with this Agreement, including any of its
personnel, Affiliates, directors, officers, employees, agents, joint venture partners or
representatives has engaged, or is engaged, in any activity, practice or conduct (or failure to
act) which would constitute an offence under the UK Bribery Act 2010 if such activity,
practice or conduct (or failure to act) were carried out in the United Kingdom, or the US
Foreign Corrupt Practices Act 1977 if such activity, practice or conduct (or failure to act) were
carried out in the United States of America;
(iv) it has not procured, and will not procure, any other person to commit or otherwise be involved
with any of the actions or omissions described in paragraphs (i) to (iii) above on its behalf;
(v) neither it nor anyone engaged by it in connection with this Agreement, including any of its
personnel, Affiliates, directors, officers, employees, agents, joint venture partners or
representatives has been, or is, subject to (i) a conviction in any court for any offence involving
Prohibited Conduct; or (ii) a dismissal or resignation from any employment on the grounds of
being implicated in Prohibited Conduct; or (iii) an exclusion by the EU institutions or any
major multi-lateral development bank (including World Bank Group, African Development
Bank, Asian Development Bank, European Bank for Reconstruction and Development,
European Investment Bank or Inter-American Development Bank) from participation in a
tendering procedure on the grounds of Prohibited Conduct; or (iv) any investigation, inquiry
or enforcement proceedings (whether formal or informal) by any governmental,
administrative or regulatory body or any customer with regard to any Prohibited Conduct, and
no such investigation, inquiry or proceedings have been threatened or are pending and there
are no circumstances likely to give rise to any such investigation, inquiry or proceedings;
(vi) it shall comply, and shall cause its personnel, Affiliates, directors, officers, employees, agents,
joint venture partners and representatives to comply, with the provisions of (i) the US Foreign
Corrupt Practices Act of 1977 and the UK Bribery Act 2010; and (ii) all applicable laws and
this Agreement regarding bribery of public officials and other persons, including as set out in
this Schedule 2; and
(vii) it shall not engage, and shall cause its personnel, Affiliates, directors, officers, employees,
agents, joint venture partners and representatives not to engage, in any Prohibited Conduct.
(b) The Seller acknowledges that under applicable Law and under this Agreement it, and its personnel,
Affiliates, officers, employees, agents and representatives, are prohibited from making payment or
accepting anything of value either directly or indirectly to or from an official of a Competent Authority
for the purposes of influencing an act or decision by a Competent Authority.
8. Obligation to report Prohibited Conduct
The Seller shall keep the Buyer promptly informed on an on-going basis as to the initiation, progress
and disposition of any investigations or proceedings relating to any matter connected to the Seller's
compliance with any anti-bribery or anti-corruption requirement or any Prohibited Conduct, whether
in respect of this Agreement or otherwise, or in respect any act or omission by the Seller or by any
person engaged by it in connection with this Agreement, including its personnel, Affiliates, directors,
officers, employees, agents, joint venture partners or representatives, that may constitute Prohibited
Conduct or otherwise be a breach of, or inconsistent with, this Schedule 2.
9. Indemnity
Without prejudice to the Seller's obligation to take immediate corrective actions to ensure compliance
with the requirements of this Schedule 2, the Seller shall defend, indemnify and hold the Buyer
harmless from all Losses and Liabilities and any breach by the Seller or by any person engaged by it
0086072-0000001 UKO1: 2000062057.9 36
in connection with this Agreement, including its personnel, Affiliates, directors, officers, employees,
agents, joint venture partners or representatives, of the obligations set forth in this Schedule 2.
0086072-0000001 UKO1: 2000062057.9 37
PART 2
MODEL 231
[TAP's Model 231 to be included.]
0086072-0000001 UKO1: 2000062057.9 38
SIGNATORIES
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed in their respective
names as at the day and year first above written.
SIGNED by
for and on behalf of
[⚫]
)
)
)
SIGNED by
for and on behalf of
TRANS ADRIATIC PIPELINE AG
)
)
)
