Tender No. 1902C00017 Description: Licensor selection for ... › PDF › Amendment-4-1902C00017.pdf · BEDP Time is the essence major importance of the contract. The Basic Engineering

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Tender No. 1902C00017

Description: Licensor selection for C4 Hydrogenation unit for OPaL

Sub: Replies to bidder’s queries

Sr. No.

Reference of Bidding Document Changes/ modifications proposed by the Bidders or Bidder’s Query

Owner/ Part/ PMC‟s Reply Part/Volume Document

Reference Clause No.

Subject

1. Annexure II General Conditions of Contract

6.2 Contractor‟s request for a change

………………….within 10 days thereof or such reasonable period as agreed by the parties…………………….

Please refer Amendment-4.


6.2.6 Change Order The instruction, interpretation, decision or event which has affected Contractor‟s work is consistent with the requirements of the Contract

Not acceptable. Bidder to follow Tender condition.


6.4 Authorization of a Variation

However, in circumstances which the OPaL reasonably judges to be exceptional, the OPaL may authorize and instruct Contractor to proceed with a variation on the basis that the Parties will agree on the reasonable effect of the variation as soon as possible, and Contractor shall proceed accordingly.



6.6 Major Changes Only variations which constitute major changes shall be regarded as qualifying as change order under this Clause 6.6. For the purpose hereof, “major changes” mean activities. a. the subject of an instruction by the OPaL which is additional to or a reduction of the scope of Services and/or Suppliesor any change to the terms and conditions of the Contract or change in thedelivery schedule or b. If there is any major change in the process package which results in re-engineering of bid package, if any re

Bidder‟s proposed modification is not acceptable. Bidder to follow Tender condition.

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tendering is done due to reasons not attributable to the Contractor and if there is any “interruption of services of the Contractor by the Company” “Major changes” do not include any instruction orinterpretation or decision of the OPaL or events which relate to the services and/or Supplies which are consistent with the requirements of the scope of Services and/or Supplies, regardless of whether they have an impact on price and/or schedule


12.1 Liquidated Damages for Delay in Supply of BEDP

Time is the essence major importance of the contract. The Basic Engineering Design Package (BEDP) shall be submitted as per the Completion schedule given at Clause 4.0 hereof



12.2 Liquidated Damages for Delay in Supply of BEDP

If the Contractor fails to submit the BEDP by the scheduled completion date due to it fault or if Contractor repudiates the Contract before completion of the aforesaid works, OPaL may, to the exclusion of any further claim, without prejudice to any other right or remedy available to it as under the Contract or Law: i. Recover from the Contractor as ascertained and agreed Liquidated Damages and not by way of penalty, sum equivalent to 1/2 % of the Fee for license plus Fee for supply of BEDP (Form A-2, Annexure V) for each week of delay occurred or part thereof beyond the scheduled completion date subject to a maximum of 105 % of said Fee even though OPaL may accept delay in Completion of said work after the expiry of the Scheduled completion date. AND/OR ii. Terminate the Contract or a portion or part of the Work thereof. OPaL shall give 14 days‟ notice to the contractor of its intention to terminate the Contract and shall so terminate the contract unless during the 14 days‟ notice period, the Contractor initiates remedial action acceptable

Please note that LD shall be applicable for the delay attributable to contractor. In the event bidder submit BEDP within 20 weeks from the Scheduled completion date, then bidder shall only be liable for applicable LD failing which OPaL shall b eligible to claim all available remedies. No further change in tender condition is acceptable.

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to OPaL.


15.0 Ownership of Records and Materials

Subject to third party rights all data and all other documents obtained by Contractor from the Company in performing the services shall be the property of the Company and shall so far as necessary be held in temporary custody of Contractor. Upon completion of the job or termination of the Agreement by the Company whichever shall first occur, all aforesaid documents including original thereof shall be handed over to the Company in accordance with such arrangements as may be prescribed by the Company. Contractor shall not make copies or utilize in any other manner, any of the documents referred to herein for purpose other than the contracted services without the prior written consent of the Company. Similarly, documents prepared by Contractor as part of deliverable for the Scope of Work shall also remain the property of Company and Contractor will not divulge or publish any contents without prior specific written approval of the Company. However, any Contractor work procedures/proprietary information/intellectual property right in any documents prepared or provided by the Contractorincluding Information and any Improvements shall not become the property of Company.

Please refer reply at Sl No.12 of „Replies to pre-bid queries‟. Patent related obligations are covered under clause 9.0 of SCC which will supersede GCC.


18.2. Failure & Termination Following termination as per clause 18.2OPAL shall pay Contractor compensation in accordance with Clause 18.1

Payment conditions are already covered under Clause 18.1. Kindly refer Sl. No. 9, 10 and 11 of Amendment – 2 for modified clauses 18.1, 18.2 and 18.3


19.0 Confidentiality The same obligations concerning secrecy are hereby accepted by Company with respect to Contractor‟s confidential information disclosed to Company under the Contract.

Before disclosing the technical information to EPC bidders, bidder(s) will sign an NDA with the licensor directly. OPaL will take prior consent

10. Annexure II General Conditions of

19.0 Confidentiality Contractors information shall not be disclosed by Company to third parties without prior written consent of

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Contract the Contractor. of Licensor, which shall not be withheld unreasonably, before disclosing the details to any third party, if required, during execution of contract.


21.0 Patents 21.1. Contractor shall hold harmless and indemnify the Company from and against all third-party losses, damages and expenses arising from any claim, for infringement of a patent copy rights in existence or to be granted on an application published prior to final acceptance of the services under the agreement, with respect to or arising out of the use of supply of tools, equipment machinerymaterials or composition of material supplied by the Contractor and practice of employment of methods and processes in the performance of the services. In the event that the Scope of Work or any part thereof when properly used in the Plant is subject to patent rights of a third party and this could reasonably have been known by Contractor at the date of signing the Contract, Contractor shall, to the exclusion of any further claims, at its option either make available to OPAL the rights in question, or modify the Scope of Supply at its own cost so as to make it not infringing, or defend OPAL from such suit or action against OPAL for infringement of third party patents, always provided, however, that • OPAL shall have given Contractor prompt and timely notice of any such suit or action; • OPAL shall not settle or compromise any such suit or action without Contractor's prior written consent. • the alleged infringement does not relate and is not based on any modifications or expansions of the Plant made by the OPAL. 21.2. Contractor shall promptly notify the Company if

Patents related provision are covered under clause 9.0 of SCC. Indemnification claim from OPaL under this clause shall be limited to the amounts if spent by OPaL towards any action by any party against it provided there should not be any disruption in execution of the contract.

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Contractor has or acquired knowledge of any patent under which a claim or suit for infringement could be reasonably brought because of the use by the Company of any tool, equipment machinery materials composition of materials supplied by the Contractor, process of methods to be supplied or covered under the Agreement.


22.0 Laws/ Arbitration This Contract shall be governed by and construed in accordance with Indian Law. Any dispute arising between the parties out of or in connection with the Contract shall be settled amicably by the parties. If the parties fail to resolve such dispute amicably within a period of [60] days, then either party may give notice to the other party to commence arbitration as to the matter in dispute. The arbitration shall be held as per the rules of SIAC. The parties shall each appoint one arbitrator within a period [30] days from the date of the notice of arbitration and these two arbitrators shall, within a period of [15 days] from the date on which the latter of the two arbitrators has been appointed, jointly appoint a third arbitrator, who shall be the presiding arbitrator. The arbitration shall be held in Singapore, in the English language. The decision of the arbitral tribunal constituted as aforesaid shall be final and binding on both the parties.

Please refer Sl No.15 of Amendment-2. List of empanelled judges can be shared by OPaL.


23.1 FORCE MAJEURE The term “Force Majeure” as employed herein shall include but is not limited tomean acts of God, revolt, War, Civil Riots, Terrorist Acts, Fire, Flood, cyclone, earthquake, tsunami, epidemics, hostilities (whether war be declared or not), invasion, act of foreign enemies, rebellion, revolution, insurrection, military or usurped power, commotion, disorder, strike or lockout by persons other than the Contractor's personnel, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Contractor's use of such materials


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or means, exceptional forces of nature such as storm, hurricane, typhoon, volcanic activity, embargoes, confiscation, scrap, unforeseen traffic, transportation or travel problems such as, but not limited to, accidents during loading, transport or unloading, port congestion, shipwreck, travel ban, and Acts and Regulations of Government on the two parties namely OPaL and the Contractor (directly affecting the performance of the CONTRACT).


25.1( c) Indemnity Subject to sub-Clause 25.2 below, any other person to the extent the injury, illness or death iscaused by the grossnegligence or fault of Contractor or Contractor‟s senior personnel or its subcontractors or subcontractors‟ personnel


Further, please refer the modification made for clause

18.1.4 of SCC. 15. Annexure II General

Conditions of Contract

25.1 (d) Indemnity d) Any property owned, hired or supplied by Contractor or Contractor‟s personnel or itssubcontractors or subcontractors‟ personnel(even if caused by or contributed to by thenegligence or fault of OPaL or its contractors and/ or subcontractors and its/ theiremployeesbut not to the extent such claims are caused by the negligence or wilful misconduct of the OPAL or its or contractors or its subcontractors).

These obligations shall be applicable for both parties. Hence, no change in tender conditions.


25.1( f) Indemnity f) Any claim by any of OPaL‟s, employees or its contractors‟ personnel and/or subcontractors‟ personnel employees under the Employees Provident Fund & Miscellaneous Provisions Act or under Workmen‟s Compensation Act or under any other applicable law or against any breach or infraction thereof by OPaL orits contractors and/or subcontractors


25.2 Indemnity The indemnification by the OPAL‟s contractors and subcontractors shall be limited to “Employees” only rather than it shall be “ Personnel”


25.3 Limitation of liability Notwithstanding any other provisions, except only in cases of willful misconduct and / or criminal acts of senior officers of the either party, a) Neither the Contractor nor the Company shall be liable to the other, whether by way of indemnity or by reason

Clause 25.3 deleted as it is getting covered under clause 18.0 of SCC. Pl refer modified clause 18.0 of SCC in Amendment-4

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of negligence or breach in Contract, tort, or otherwise, for any indirect or special or consequential loss or damage, loss of use, loss of contracts, loss of production, or loss of profits or interest costs, provided however that this exclusion shall not apply to any obligation of the Contractor to pay Liquidated Damages to the Company and


28.1 Modification in service agreement

All modifications ………………..in writing by OPaLthe parties by issuing amendment to the Contract. OPaL shall not be bound by any, ……………… supplement to Contract.

Bidder‟s proposed modification is not acceptable. Bidder to follow Tender conditions


28.3( b) Amendments Subject to clause 6, It is agreed that Contractor shall carry out work in accordance with the completion programme to be furnished by OPaL which may be amended from time to time by reasonable modifications as OPaL sees fit. OPaL shall have complete right and discretion on such matters to decide.

Bidder‟s proposed modification is not acceptable. Bidder to follow Tender conditions


32.2

Warranties Contractor will exercise all reasonable skill, care and diligence in the performance of the work andwill carry out the work in accordance with prudent engineering practice, compliant with theinternational/ national standards and contract performance guarantees as mentioned in the Contractcommensurate with best of engineering disciplines called for herein. Contractor shall be responsible as set forth herein for anydiscrepancies, errors or omissions in the design, engineering, drawings, services, supplies provided by the Contractorfor the project, documentation supplied by it or approved by it on behalf of the Companywhether the same shall have been approved by the Company‟s representative or not provided that suchdiscrepancies, errors, or omissions are not due to inaccurate information furnished by Company toContractor and shall at its expense upon the Company‟s request promptly rectify the deficiency byamending / replacing or supplementing the deficient engineering, drawings, services, supplies,documentation provided by the Contractor as appropriate.

Said provision covered under clause 8.7 of SCC.

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The warranty set out in Clause 32 will be deemed to have been fulfilled and Licensor shall be relieved

of all further liability on earlier of the following: (A) six (6) months after Start-Up and

Commissioning of the Plant; or

(B) sixty (60) months after the Effective Date

22. ANNEXURE_IV SPECIAL CONDITIONS OF CONTRACT

1.2.23 Operating Plant The bidder understands that the Plant referred here in the definition is the Plant as defined in the definition section

Bidders understanding is correct


2.7 Grant All plans, data, maps, drawings, specifications and all other documents including Improvements provided by the Licensor under this Contract shall remain the property of the Licensor. Licensor grants Licensee a limited right to make copies of such documents solely to the extent necessary operation of the Plant and shall not make copies or utilize for any other purpose without the express consent of the Licensor

Said provision is covered under clause 15.0 of GCC.


2.8 Grant Nothing in this Contract shall grant or imply the grant of any licences or rights to Licensee to use or display any trademarks, logos or symbols used by Licensor or any of its Associated Companies or any of its other licensor or its predecessor companiesor any other trademarks, logos or symbols similar to them or which might be confused with them, in the production use or sale of the Products or any other products, equipment or servicesprovided however that Licensee shall be permitted to refer to the Products manufactured in the Plant as having been "produced using the Process licensed from Licensor".

No change in tender condition.


4.1.1 CONFIDENTIALITY Licensee is authorised to make disclosures to contractors and equipment suppliers as maybe necessary for the design, procurement of equipment, construction and maintenance of the Plantonly with prior written consent of the Licensor

Before disclosing the technical information to EPC bidders, bidder(s) will sign an NDA with the licensor directly.

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4.4 CONFIDENTIALITY Any disclosure of Information or Improvements to the PMC, LSTK Contractor, other contractorsand/or equipment suppliers shall be limited to the extent reasonably necessary to enable eachsuch contractor or equipment supplier to perform his particular role in the construction, operationand maintenance of the Plantandonly with prior written consent of the Licensor.

OPaL will take prior consent of Licensor, which shall not be withheld unreasonably, before disclosing the details to any third party, if required, during execution of contract.


7.1 REIMBURSEMENT FOR TECHNICAL SERVICES (MANDATORY AND ADDITIONAL SERVICES)

Licensor shall be responsible as set-forth herein, for any discrepancies, errors or omissions in theBEDP and shall at its expense upon the Licensee's request, promptly rectify the deficiency byamending/ replacing or supplementing the deficient BEDP in case there is a failure of PerformanceGuarantee Test Run attributable to such deficiency in BEDP.Notwithstanding anything containedherein, the liabilities of the Licensor towards aforesaid rectification costs shall be unlimited,without qualifications and not subject to any restrictions.

The warranty set out in Clause 8.1.1 shall expire and Licensor shall be relieved of all further liability

on earlier of the following: (A) six (6) months after Start-Up and

Commissioning of the Plant; or

(B) sixty (60) months after the Effective Date

Bidder‟s proposed deletion is not acceptable. Bidder to follow Tender conditions. However, Bidder‟s concern is already addressed under clause 15.0 of GCC.


8.5 WARRANTIES, PERFORMANCE GUARANTEES AND PERFORMANCE GUARANTEE TEST RUN LIABILITIES TOWARDS PERFORMANCE GUARANTEES

There is contradiction between clause 8.5 of SCC and clause 4.4 of Appendix- to Annexure IV - LIABILITIES TOWARDS PERFORMANCE GUARANTEES

There is no contradiction. Clause 8.5 deals with the number of attempts for PGTR. Clause 4.4 deals with the liabilities for modification to meet PGTR.

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8.10 and 8.11

WARRANTIES, PERFORMANCE GUARANTEES AND PERFORMANCE GUARANTEE TEST RUN LIABILITIES TOWARDS PERFORMANCE GUARANTEES

The liability of licensor under clause 8.11 shall extend only in case the performance test is failed/not performed due to reasons attributable to the Licensor. Further the liabilities of Licensor for performance guarantees shall be limited to 10% of the License and BDEP fees. If Licensor is unable meet the performance guarantees, during the Performance Guarantee Test Run due to Licensor's fault, Licensor shall, to the exclusion of any further claims, at its option either rectify the Scope of Supply as necessary to achieve the guaranteed performances in a further Performance Test or pay liquidated damages

Bidder‟s proposed modification is not acceptable. Bidder to follow tender condition


9 PATENT WARRANTY &THIRD-PARTY PATENT INDEMNIFICATION

Any settlement to be done by the Licensor shall be at its sole option

Bidder to follow tender condition


9.2 PATENT WARRANTY & THIRD-PARTY PATENT INDEMNIFICATION

Subject to Clause 9.3 hereof, in the event of institution of any suit against Licensee alleging infringement of any Third Party Patent by reason of the practice of the Process in the Plant, Licensor shall at its option and to the exclusion of any further claim, either agrees, on request of Licensee in writing, made immediately after institution thereof 9.2.1 To confer with the Licensee with a view to agreeing and acting upon the best means of defending or settling the claim or action and/or of modifying or operating the Plant or make available to OPAL the rights in questionso as to avoid infringement of such Third Party Patent at the cost of the Licensor.



9.2.1 PATENT WARRANTY & THIRD-PARTY PATENT INDEMNIFICATION

provided, however, that Licensor's total liability under Clause 9 including defence of suit shall be unlimited and shall be in additional to aggregate liability as specified under Clause 18.1.


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14.3 ASSIGNMENT This Agreement may be assigned by Licensee to its successor or to Associated Companies of Licensee upon written notice to Licensor and/or in the event Licensee sells or leases the Plant to a Third Party, provided that all payments due to Licensor at the date of assignment have been made in full and assignment to a competitor of Licensor may not be made without Licensor‟s consent. However,Licensee shall assume all payment obligations in case the such assignee defaults.

Bidder‟s concern is already covered/ addressed under SCC clause 14.1.


18.1 LIMITATION OF LIABILITY

Notwithstanding any other provisions incorporated elsewhere in this Agreement, the aggregate liability of the Licensor to Licensee whether under this Agreement, in tort or otherwise, shall be limited to the sum of 100%20% of the License Fee and 100%20% of the Fee for supply of BEDP provided however that the liabilities for the following shall be excluded from the limit of overall liability: 18.1.1 Rectification of deficiency as per Clause 8.1.1 above, 18.1.2 Patent Infringement as per Clause 9 and its sub-clauses above. 18.1.3 Deploying Licensor's Personnel for carrying out subsequent Performance Guarantee Test Runs (PGTR), if the PGTR had failed in the earlier attempt(s) due to reasons attributable to the Licensor. For details refer elsewhere in the Contract. 18.1.4 Indemnity obligations as per GCC Clause 25.1



20.3 RIGHTS ON TERMINATION

The provision of the said clause shall apply even in case the termination is under clause 18.2 ( a), (c ), (d) and (e).



30.1/30.4/30.5

INSURANCE The following clause to be included: - In case LICENSOR cannot provide waiver of rights of subrogation in favour of LICENSEE and LICENSEE’s representative, upon written notice by LICENSEE to LICENSOR that LICENSOR’s insurer has made one or

Bidder to follow tender condition.

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more claims against LICENSEE pursuant to enforcement of subrogation rights against LICENSEE, LICENSOR shall defend, indemnify and hold harmless LICENSEE, from and against any and all claims made by LICENSOR’s insurer including all interests, damages, liabilities, losses, amounts paid in settlement, and costs and expenses including attorney’s fees relating to or arising out of defense, legal proceedings, or settlement of each and all such claims (“DAMAGES”), whether or not a lawsuit or other proceeding is filed. In the event LICENSOR fails to expeditiously and diligently defend, indemnify and hold LICENSEE harmless as provided herein above, LICENSOR shall forthwith on demand made by LICENSEE make payment to LICENSEE of all DAMAGES. In the event, LICENSOR fails its obligations in the foregoing sentences, LICENSEE shall, in their sole discretion, have the right to defend themselves and satisfy the decree, if any, against LICENSEE or enter settlement with the insurer at LICENSOR's sole cost and expense. For avoidance of doubt it is clarified that this indemnity shall apply where the LICENSOR is not able to provide or has not provided from its insurer waiver of subrogation in favour of LICENSEE with respect to the LICENSOR furnished Insurances under this Section.


30.4 INSURANCE Since the Licensee holds a group corporate policy for transit insurance it might not be possible to include the name of Licensee as co insured.

The Licensor to include the name of Licensee as Co-insured which is possible through a separate endorsement from Insurer.


30.5 INSURANCE The Licensor shall, if requested in writing by Licensee, prior to commencing any relevant part of its obligations under this Agreement deliver to the Licensee, copies of any relevant insurance policies in the form of Certificate(s) of Insurance as evidence that the required policies are in full force and effect.

Bidder to submit relevant insurance policies. However, if Insurance policy cannot be shared, the Licensor may provide Certificate of Insurance duly attested by its

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30.5 INSURANCE The policy of insurance to be submitted by the Licensor shall be in the form of Certificate(s) of Insurance

Insurance company. The Licensor to also give an undertaking on its letter head stating that the entire said transit insurance risk is covered under the Policy no. ______ issued by _________ insurance company.


31.1 SUSPENSION Licensee may at any time, should Licensee deem it necessary to do so for any valid reason,suspend all or part of work giving not less than 14 (fourteen) days‟ written notice to Licensor. Suchnotice of suspension shall specify the scope of the work to be suspended, and the effective date ofsuspension. Licensor shall suspend work on the date or dates specified by Licensee in any ofnotice(s) issued under this clause and shall resume the work within a reasonable time upon receiptof Licensee's notice to resume. The Licensor shall not be entitled forthe followingany claims/loss on account ofsuch suspension of work. a) demobilization and remobilization of personnel and equipment, b) safeguarding the Scope of Work items and material provided for the Scope of Work and related equipment, c) personnel, subcontractors and equipment which must be kept available in accordance with the mobilization plan, d) moving the Scope of Work, if necessary, so that it does not interfere unreasonably with the CONTRACTOR'S other activities an e) other expenses incurred by Licensor as a result of suspension of the performance of the Scope of Work.

Bidder to follow tender condition.

41. ANNEXURE_IV SPECIAL CONDITIONS

31.2 SUSPENSION In the event, Licensee fails to make any undisputed payment of any fees due to be paid underClause 5

No change in tender conditions.

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OF CONTRACT

beyond a period of sixty (60) days, Licensor may give written notice to Licensee of suchdefault and should Licensee fail to correct within an additional thirty (30) days after such default,Licensor may thereafter suspend Services. Licensor shall resume the work within a reasonabletime upon receipt of such undisputed payment from Licensee. The Licensor shall not be entitledthe followingfor any claims/loss on account of such suspension of work. a) demobilization and remobilization of personnel and equipment, b) safeguarding the Scope of Work items and material provided for the Scope of Work and related equipment, c) personnel, subcontractors and equipment which must be kept available in accordance with the mobilization plan, d) moving the Scope of Work, if necessary, so that it does not interfere unreasonably with the CONTRACTOR'S other activities an e) other expenses incurred by Licensor as a result of suspension of the performance of the Scope of Work.

42. Appendix-1 to Annexure IV

Liabilities towards performance guarantees

5.2/5.3 Liabilities for process guarantees

The liability for performance failure i.e. to satisfy the Minimum Process Guarantees (as defined in Table A) during the Performance Guarantee Test Run shall apply only in case such failure is due to Licensor's fault and LD as per Table A shall be to the exclusion of any further claims and represents Licensor‟s sole and exclusive liability for delay. Further the liabilities as covered under the said clause shall not exceed 10% of the Contract Price.

Bidder to follow Tender Condition.



5.4/5.6 Liabilities for process guarantees

If after meeting minimum process performance guarantees, any of the aspects of performance fail to satisfy the Process Performance Guarantees (defined in Table A) during the Performance Guarantee Test Run due to Licensor's fault, Licensor shall, to the exclusion of any


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further claims, at its option either rectify the Scope of Work as necessary to achieve the guaranteed performances in a further Performance Test or pay liquidated damages



5.5 Liabilities for process guarantees

If after meeting minimum process performance guarantees, any of the aspects ofperformance fail to satisfy the Process Performance Guarantees (defined in Table -A) duringthe Performance Guarantee Test Run, Licensor will perform corrective engineering and shallincur the entire expenditure related to this corrective engineering, supplies and licensorservices without anylimit as required to achieve satisfactory resultslimited to limitation of Liability as defined in the GCC/ SCC.


45. Appendix-2 to Annexure-IV

GENERAL TERMS & CONDITIONS

1.4 Purchase Order/Contract Price

Shall mean the sum accepted or the sum calculated in accordance with the rates accepted by OPaLand amendments thereof, and shall include all fees, registration and other charges paid to statutoryauthoritiesfor the Scope of Work without any liability on OPaL for any of these charges. The prices will remain firm duringcurrency of the Purchase Order/Contract unless specifically agreed to in writing by OPaL




6.3 SECURITY DEPOSIT/PERFORMANCE BOND

In the event delivery is delayed for the reasons attributable to the Supplierany reasons whatever, the Supplier shall get the validity of the guarantee suitably extended so as to make it valid for contract period plus warranty period plus 60days from the extended Delivery date.

Please refer Amendment-4



7.1 FAILURE &TERMINATION/LIQUIDATED DAMAGES

Time and date of delivery shall bemajor importancethe essence of the contract. If the contractor/supplier fails to deliverthe stores, or any instalment thereofdue to reasons attributable to the Supplier within the period fixed for such delivery in the schedule or any timerepudiates the contract before the expiry of such period, the purchaser may to the exclusion of any further claim, without prejudice to any other right or remedy, available to him to recover damages for breach of the contract :


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7.1.1 FAILURE &TERMINATION/LIQUIDATED DAMAGES

Recover from the Contractor/Supplier as agreed liquidated damages and not by way of penalty, a sumequivalent to 1/2%(half percent) of the Purchase order price of the delayed Equipment/Material/Goodswhole unit plus applicable GSTper week for such delay or part thereof(this is an agreed, genuine pre-estimate of damages dulyagreed by the parties) which the contractor has failed to deliver within the period fixed for delivery inthe schedule, where delivery thereof is accepted after expiry of the aforesaid period. It may be notedthat such recovery of liquidated damages may be up to a ceiling of 10% of the Purchase order price ofthedelayedEquipment/Material/Goodswhole unit of stores which the contractor/supplier has failed to deliver within the period fixed fordelivery plus applicable GST.




7.3 Termination for Insolvency

The Purchaser may at any time terminate the Contract by giving written notice to the Supplier if theSupplier becomes bankrupt or otherwise insolvent. In the event, termination will be withoutcompensation to the Supplier, provided that such termination will not prejudice or affect any rightof action or remedy which has accrued or will accrue thereafter to the Purchaser, however Supplier shall be entitled for the compensation for the work performed till the date of termination.




8 LIABILITY UNDER THE PURCHASE ORDER

The total liability of the Supplier arising out of sale or use of the Equipment/ Material/ Goodssupplied by them, if the same is found defective, shall be limited to the Total Purchase Order valueof such defective units and associated tools. In no event shall either party be liable to the otherwhether under the Purchase Orderby way of indemnity or by reason of negligence or breach of Contract, tort or otherwise for any indirect, incidental, special, punitive or consequential loss or damage, loss ofuse, loss of production, loss of profit or interest costs or environmental pollution damagewhatsoever arising.



GENERAL TERMS &

15.3 FORCE MAJEURE Upon the occurrence of such cause and upon its termination, the party alleging that it has beenprevented


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CONDITIONS thereby, shall notify the other party in writing, the beginning of the cause amounting toForce Majeure as also the ending of the said cause by giving notice to the other party thereofwithin 72 hours of the ending of the cause respectively. If supplies are suspended by Force Majeure conditions lasting for more than two months, OPaLeither partyshall have the option of terminating the Purchase Order/ Contract in whole or part at its discretion without any liability for breach on its part resultant upon the termination. Time for performance of the relative obligation suspended by Force Majeure shall then stand extended by the period for which such cause lasts.



16 WARRANTIES & GUARANTEES

Contractor warrants that the Equipment/Material/Goods shall be free from defects in design, material or workmanship for a period of 12 months from date of supply (the "Mechanical Warranty Period"). If, during the Mechanical Warranty Period, any part of the Equipment/Material/Goods proves defective, Contractor shall at its option either repair or replace such defective part at its cost and expense on contractual delivery basis. The Mechanical Warranty shall be subject to the following conditions: • Purchaser shall notify Contractor in writing of such defect within fourteen (14) days after the same are, or reasonably should have been discovered; • The Equipment/Material/Goods has been properly stored, installed, operated and maintained in accordance with sound engineering procedures and with the drawings and instructions provided to Purchaser by Contractor; • The Equipment/Material/Goods has not been misused, damaged in operation, operated outside contractual specifications, or negligently handled by Purchaser;

Agreed for proprietary items supply. For catalysts please refer clause 16.0

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• The Equipment/Material/Goods has not been altered or repaired without Contractor's prior written consent; • Purchaser shall in due time provide Contractor with reasonable access to the location of the defective part for the purpose of making any repairs or replacements, • Contractor's obligations under the Mechanical Warranty shall not apply to defects or damages caused by normal wear and tear, erosion or corrosion, or to any materials which are normally consumed in operation or which have a normal life shorter than the Mechanical Warranty Period; • In the event that, subsequent to Purchaser's claim hereunder, it is determined that the part is not defective, then Purchaser shall reimburse Contractor all costs and expenses incurred by Contractor as a result of such claim. For replaced or repaired parts the Mechanical Warranty Period shall be extended to 12 months from the date of such repair or replacement. However, the Mechanical Warranty Period so extended shall at the latest expire 12 months after the original Mechanical Warranty Period has expired. The remedies set forth in this clause for failure to meet the Mechanical Warranty are exclusive.



20 Payment Terms If any payment which becomes due under this Contract remains unpaid after the due date thereof, such payment shall accrue interest daily @1% from the date on which payment was due until the day before payment is actually received by Contractor. Contractor's right to receive interest in respect of the late payment of any sum due shall be without prejudice to such other rights that Contractor may have in respect of such late payment.

No change in tender conditions

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In case of delay of any payment due by more than 15 (fifteen) days, Contractor shall be entitled, by notice in writing to OPAL, to suspend or slow down performance of all or any of its obligations under this Contract. OPAL shall reimburse to Contractor any cost in connection with such suspension, such as but not limited to, cost for de- and remobilisation, storage, preservation of Equipment, price increase of Contractor and subcontractor, etc. Furthermore, Contractor shall be entitled to overhead and reasonable profit on such cost. If OPAL does not pay Contractor any payment due within 45 (forty-five) days after the relevant due date, Contractor shall be entitled to terminate this Contract and OPAL shall reimburse to Contractor any cost in connection with the termination, such as, but not limited to, work already performed, subcontractor’s cancellation cost, etc. Furthermore, Contractor shall be entitled to overhead and reasonable profit on such cost.



The clause of Change Order, Confidentiality, PATENT WARRANTY & THIRD-PARTY PATENT INDEMNIFICATION, Change in Law etc shall apply to GTC

Agreed

55. Amendment-2 to tender document

Clause 17.0-GCC

Except in case of breach of confidentiality obligations, 17.1 The Contractor or its subcontractors or their

personnel shall not be responsible for or liable to the Company or any of their affiliates by way of indemnity or by reason of negligence or breach of Contract or in

tort or otherwisefor consequential, indirect or special

damages or for loss of profits, loss of revenue, loss or

escape of product (hydrocarbons) or facilities downtime, loss of use, loss of contracts suffered by the Company

or any of its affiliates, and the Company shall protect, defend, indemnify and hold harmless the Contractor, its employees, appointed representatives, agents,


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affiliates and his Sub-Contractors, from such claims even

if such liability is based or claimed to be based upon:

i) Any breach by the Contractor or its Subcontractor of his

obligations under the Contract OR

ii) Any negligent act or omission in whole or in part, of the Contractor its employees, appointed representatives,

agentsor of any of his affiliates or Subcontractor or their

personnel or any of them in connection with the

performance of the Works.

17.2 The Company or its other Contractors or their

personnel shall in no event be responsible for or liable to

the Contractor or his Sub-Contractor or any of their affiliates by way of indemnity or by reason of negligence or breach of Contract or in tort or

otherwise for consequentialindirect or

specialdamagesor for loss of profits, loss of revenue, loss or escape of product (hydrocarbons) or facilities

downtime orloss of use, loss of contracts, suffered by

the Contractor or his Sub- Contractor including without

limitation to business interruption or loss of profits etc. The Contractor shall protect, defend, indemnify the

Company, its employees, appointed representatives,

agents and other Contractors etc., from such claims even if such liability is based or claimed to be used upon:

i) Any breach by the Company of its obligations under the

contract,

OR ii) Any negligent act or omission on the part of the

Company or any of its employees, agents or other Contractors or appointed representatives in connection

with the performance of works.

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Clause 18.1-GCC

18.1Company may at any time terminate the Contract by giving3015 days’ notice without assigning any reason. In

case of such termination of the Contract, full

compensation shall be payable to Contractor for all the services performed till the time the work is wound up

(including any cancellation and demobilisation costs) and when such termination is or for any material breach of

the terms of the contract attributable to the Contractor

then, i) Contractor shall refund all monies paid by Company to

Contractor till the date of termination and; ii) no further compensation shall be payable to the

Contractor except for the compensation for all the services performed till date of termination and

iii) Company shall have absolute right to invoke the

performance guarantee



Clause 18.2-GCC

Notwithstanding the term of CONTRACT, OPaL may terminate this Contract on written notice of 30 daysto the Contractor in accordance with clause 16 if: In the event of material breach, default or deficiency by the Contractor under or with reference to the Service to be provided under the Contract, OPaL reserves the right at its option and discretion to terminate the Contract with the Contractor.

No change in tender condition


Clause 18.2-GCC

The said clause shall be equally applicable in case of insolvency of the Company.



Clause 18.2-GCC

If the OPaL considers that the performance of the Contractor is unsatisfactory or, not up to the expected standard, the OPaL shall notify the Contractor in writing and specify in detail the cause of such dissatisfaction, advising the Contractor to take corrective measures and set right the defect within 15 days (or any extended period as approved by the Company) of such notice. In case the Contractor fails to comply with the notice of OPaL, OPaL


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shall have the right to terminate the CONTRACT with immediate effect.


Clause 18.2-GCC

The provision of this clause shall apply only in case the contract is terminated as per clause 18.2 (a) , (d) and (e).



19.3 Confidentiality Subject to clause 15 of GCC and clause 2.6 of SCC, upon completion of this Engagement, all the data, information, material, records, documents, copies of opinions and advices, maps, tapes etc. available, received or generated by the Contractor in connection with the discharge of its obligations under this Engagement shall become the sole and absolute property of OPaL and shall be returned by the Contractor to OPaL within fifteen days (15) from the date of the termination/expiry of Contract hereof. Further, the Contractor shall not use the same in any manner and for any purpose whatsoever without the written authority of OPaL to this engagement.

Already covered under clause 15.0 of GCC.

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Tender no: 1902C00017

Licensor selection for C4 Hydrogenation unit for OPaL

Sub: Amendment-4 to tender document

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Clause No. Existing clause Amended clause

1. Clause 6.2 Annexure- II-GCC

Contractors request for a change : If Contractor believes that any instruction, interpretation or decision of the OPaL/ PMC or the occurrence of

any event affects the Services/supplies so as to qualify as a variation to the Services and/or Supplies and/ or Scheduled completion date under Clause

6.6, then Contractor shall give prompt notice to the PMC and OPaL, in

writing, specifying the variation in the Contract Price and in the Scheduled completion date, within 10 days thereof prior to proceeding with the

Services and/ or Supplies affected. If the OPaL/ PMC reasonably judges that said Instruction, interpretation, decision or event requires a Change Order,

the OPaL will authorize the same. However, no requested variation will be authorized, if the OPaL/ PMC reasonably judges that :

Contractor’s request for a change : If Contractor believes that any

instruction, interpretation or decision of the OPaL/ PMC or the

occurrence of any event affects the Services/supplies so as to qualify as

a variation to the Services and/or Supplies and/ or Scheduled completion

date under Clause 6.6, then Contractor shall give prompt notice to the

PMC and OPaL, in writing, specifying the variation in the Contract Price

and in the Scheduled completion date, within 10 days or such

reasonable period as agreed by the parties thereof prior to proceeding

with the Services and/ or Supplies affected. If the OPaL/ PMC

reasonably judges that said Instruction, interpretation, decision or event

requires a Change Order, the OPaL will authorize the same. However,

no requested variation will be authorized, if the OPaL/ PMC reasonably

judges that :


Authorization of a Variation: Authorization of a variation must be in

writing by the OPaL before Contractor proceeds therewith. The authorization

will include, in addition to a valuation in accordance with Clause 6.3, prior agreement by the OPaL and Contractor on the reasonable effect of a

Authorization of a Variation: Authorization of a variation must be in

writing by the OPaL before Contractor proceeds therewith. The

authorization will include, in addition to a valuation in accordance with

Clause 6.3, prior agreement by the OPaL and Contractor on the

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proposed variation on the Schedule Completion Date and/ or Contract Price. The authorization shall then constitute Change Order.

However, in circumstances which the OPaL reasonably judges to be exceptional, the OPaL may authorize and instruct Contractor to proceed with

a variation on the basis that the Parties will agree on the reasonable effect

of the variation as soon as possible, and Contractor shall proceed accordingly.

reasonable effect of a proposed variation on the Schedule Completion

Date and/ or Contract Price. The authorization shall then constitute

Change Order.

However, in circumstances which the OPaL reasonably judges to be

exceptional, the OPaL may authorize and instruct Contractor to proceed

with a variation on the basis that the Parties will agree on the

reasonable effect of the variation and Contractor shall proceed

accordingly. The same shall be finalised within 90 days from the date of

submission of required details in the form of change order proposal by

the contractor.


Time is the essence of the contract. The Basic Engineering Design Package

(BEDP) shall be submitted as per the Completion schedule given at Clause 4.0 hereof.

Time is of utmost importance of the contract. The Basic Engineering

Design Package (BEDP) shall be submitted as per the Completion

schedule given at Clause 4.0 hereof.


The term “Force Majeure” as employed herein shall mean acts of God,

revolt, War, Civil Riots, Terrorist Acts, Fire, Flood, cyclone, earthquake,

tsunami, epidemics and Acts and Regulations of Government on the two parties namely OPaL and the Contractor (directly affecting the performance

of the CONTRACT).

The term “Force Majeure” as employed herein shall mean but not limited

to acts of God, revolt, War, Civil Riots, Terrorist Acts, Fire, Flood,

cyclone, earthquake, tsunami, epidemics and Acts and Regulations of

Government on the two parties namely OPaL and the Contractor

(directly affecting the performance of the CONTRACT).

5. Clause 25.1(c ) Annexure- II-GCC

Subject to sub-Clause 25.2 below, any other person to the extent the injury, illness or death is caused by the negligence or fault of Contractor or

Contractors personnel or its subcontractors or subcontractors‟ personnel.

Subject to sub-Clause 25.2 below, any other person to the extent the injury, illness or death is caused by the Gross Negligence or fault of

Contractor or Contractors personnel or its subcontractors or subcontractors‟ personnel.


Limitation of liability:

Notwithstanding any other provisions, except only in cases of willful

misconduct and / or criminal acts,

a) Neither the Contractor nor the Company shall be liable to the

other, whether in Contract, tort, or otherwise, for any

Deleted

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consequential loss or damage, loss of use, loss of production, or

loss of profits or interest costs, provided however that this

exclusion shall not apply to any obligation of the Contractor to

pay Liquidated Damages to the Company and

b) Notwithstanding any other provisions incorporated elsewhere in

the contract, the aggregate liability of the Contractor in respect

of this contract, whether under the Contract, in tort or otherwise,

shall not exceed 100% of the Contract Price, provided however

that this limitation shall not apply to the cost of repairing or

replacing defective equipment by the Contractor, or to any

obligation of the Contractor to indemnify the Company with

respect to Intellectual Property Rights.

7. Clause 18.1-SCC-Annexure-IV

CLAUSE 18 - LIMITATION OF LIABILITY

The provisions of GCC Clause 25.3 stand partially modified to the following

extent.

18.1 Notwithstanding any other provisions incorporated elsewhere in this

Agreement, the aggregate liability of the Licensor to Licensee whether under this Agreement, in tort or otherwise, shall be limited

to the sum of 100% of the License Fee and 100% of the Fee for supply of BEDP provided however that the liabilities for the following

shall be excluded from the limit of overall liability:

18.1.1 Rectification of deficiency as per Clause 8.1.1 above,

18.1.2 Patent Infringement as per Clause 9 and its sub-clauses

above.

18.1.3 Deploying Licensor's Personnel for carrying out subsequent

Performance Guarantee Test Runs (PGTR), if the PGTR had failed in the earlier attempt(s) due to reasons attributable to

the Licensor. For details refer elsewhere in the Contract.

CLAUSE 18 - LIMITATION OF LIABILITY

18.1 Notwithstanding any other provisions incorporated elsewhere in

this Agreement, the aggregate liability of the Licensor to Licensee whether under this Agreement, in tort or otherwise, shall be limited to

the sum of 100% of the License Fee and 100% of the Fee for supply of

BEDP provided however that the liabilities for the following shall be excluded from the limit of overall liability:

18.1.1 Rectification of deficiency as per Clause 8.1.1 above,

18.1.2 Patent Infringement as per Clause 9 and its sub-clauses above.

18.1.3 Deploying Licensor's Personnel for carrying out subsequent Performance Guarantee Test Runs (PGTR), if the PGTR had failed in the

earlier attempt(s) due to reasons attributable to the Licensor. For details refer elsewhere in the Contract.

18.1.4 Indemnity obligations as per GCC Clause 25.1

18.1.5 Consequence of wilful misconduct and / or criminal acts

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18.1.4 Indemnity obligations as per GCC Clause 25.1

8. Clause 20.3-Annexure-IV-SCC

Upon early termination of this agreement under GCC Clauses 18.1, 18.2 a, 18.2 d) or 18.2 e), all plans, data, maps, drawings and all other documents

provided by the Licensee including originals thereof shall be returned to the

Licensee in accordance with such arrangements as may be prescribed by the Licensee.

Upon early termination of this agreement under GCC Clauses 18.1, 18.2 a, 18.2 c), 18.2 d) or 18.2 e), all plans, data, maps, drawings and all

other documents provided by the Licensee including originals thereof

shall be returned to the Licensee in accordance with such arrangements as may be prescribed by the Licensee.

9. Clause 6.3- Appendix-2 to Annexure-IV

In the event delivery is delayed for any reasons whatever, the Supplier shall

get the validity of the guarantee suitably extended so as to make it valid for

contract period plus warranty period plus 60 days from the extended

Delivery date.

In the event delivery is delayed for any reasons whatever, the Supplier

shall get the validity of the guarantee suitably extended so as to make it valid for contract period plus warranty period plus 60 days from the

extended Delivery date. However, if the delay is attributable to the Company, Company shall bear the cost of extension of such

Performance Guarantee for such extended period at the normal bank rates as applicable to International Banking procedures


Time and date of delivery shall be the essence of the contract. If the

contractor/supplier fails to deliver the stores, or any instalment thereof

within the period fixed for such delivery in the schedule or any time

repudiates the contract before the expiry of such period, the purchaser may,

without prejudice to any other right or remedy, available to him to recover

damages for breach of the contract :

Time and date of delivery shall be of utmost importance of the contract.

If the contractor/supplier fails to deliver the stores, or any instalment

thereof within the period fixed for such delivery in the schedule or any

time repudiates the contract before the expiry of such period, the

purchaser may, without prejudice to any other right or remedy,

available to him to recover damages for breach of the contract :

11. Clause 7.1.1- Appendix-2 to Annexure-IV

Recover from the Contractor/Supplier as agreed liquidated damages and

not by way of penalty, a sum equivalent to 1/2%(half percent) of the

Purchase order price of the whole unit plus applicable GST per week for

such delay or part thereof(this is an agreed, genuine pre-estimate of

damages duly agreed by the parties) which the contractor has failed to

deliver within the period fixed for delivery in the schedule, where delivery

thereof is accepted after expiry of the aforesaid period. It may be noted

that such recovery of liquidated damages may be up to a ceiling of 10% of

the Purchase order price of the whole unit of stores which the

contractor/supplier has failed to deliver within the period fixed for delivery

Recover from the Contractor/Supplier as agreed liquidated damages

and not by way of penalty, a sum equivalent to 1/2%(half percent) of the

Purchase order price of the Equipment/Material/Goods plus

applicable GSTper week for such delay or part thereof(this is an

agreed, genuine pre-estimate of damages duly agreed by the parties)

which the contractor has failed to deliver within the period fixed for

delivery in the schedule, where delivery thereof is accepted after expiry

of the aforesaid period. It may be noted that such recovery of liquidated

damages may be up to a ceiling of 10% of the Purchase order price of

the Equipment/Material/Goods which the contractor/supplier has

failed to deliver within the period fixed for delivery plus applicable GST

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plus applicable GST.


Upon the occurrence of such cause and upon its termination, the party

alleging that it has been prevented thereby, shall notify the other party in

writing, the beginning of the cause amounting to Force Majeure as also the

ending of the said cause by giving notice to the other party thereof within 72

hours of the ending of the cause respectively. If supplies are suspended by

Force Majeure conditions lasting for more than two months, OPaL shall have

the option of terminating the Purchase Order/ Contract in whole or part at

its discretion without any liability for breach on its part resultant upon the

termination. Time for performance of the relative obligation suspended by

Force Majeure shall then stand extended by the period for which such cause

lasts.

Upon the occurrence of such cause and upon its termination, the party

alleging that it has been prevented thereby, shall notify the other party

in writing, the beginning of the cause amounting to Force Majeure as

also the ending of the said cause by giving notice to the other party

thereof within 72 hours of the ending of the cause respectively. If

supplies are suspended by Force Majeure conditions lasting for more

than two months, either party shall have the option of terminating the

Purchase Order/ Contract in whole or part at its discretion without any

liability for breach on its part resultant upon the termination. Time for

performance of the relative obligation suspended by Force Majeure shall

then stand extended by the period for which such cause lasts.

13. GCC clause 18.1- Amended vide Amendment-2

18.1Company may at any time terminate the Contract by giving 15 days’

notice without assigning any reason. In case of such termination of the

Contract, full compensation shall be payable to Contractor for all the services

performed till the time the work is wound up(including any cancellation and

demobilisation costs) and when such termination is or for any breach of the

terms of the contract attributable to the Contractor then,

i) Contractor shall refund all monies paid by Company to Contractor till

the date of termination and;

ii) no further compensation shall be payable to the Contractor and

iii) Company shall have absolute right to invoke the performance

guarantee

18.1Company may at any time terminate the Contract by giving 15 days’

notice without assigning any reason. In case of such termination of the

Contract, full compensation shall be payable to Contractor for all the

services performed till the time the work is wound up(including any

cancellation and demobilisation costs) and when such termination is or

for any breach of the terms of the contract attributable to the Contractor

then,

i) no further compensation shall be payable to the Contractor and

ii) Company shall have absolute right to invoke the performance

guarantee

Documents

Tender No. 1902C00017 Description: Licensor selection for ... › PDF › Amendment-4-1902C00017.pdf · BEDP Time is the essence major importance of the contract. The Basic Engineering