Article 40 THE CONTRACT PROVIDES THE EXCLUSIVE REMEDIES FOR ALL CLAIMS BETWEEN THE PARTIES

40.1 All claims to payment or compensation of any kind are to be asserted and established in accordance with the provisions of this Contract. These Contract provisions are a complete system for establishing all and any entitlements as between the Parties, arising out of or in connection with the Contract, its breach, its alleged termination or execution of the Works.

40.2 Unless established by the provisions of this Contract, no claim by either Party is enforceable against the other Party.

Article 41 PAYMENT OF THE CONTRACT PRICE

41.1 As payment to the Contractor for the full and complete performance of the Works the Employer shall pay and the Contractor shall accept the sum set out as the Contract Price in the Contract as varied in accordance with the Contract.

41.2 The Parties recognise and agree that the Contract Price is payable in instalments according to the progress of the Works in an Invoice Period and/or milestones as set out in an Appendix (if any) and otherwise in accordance with the provisions of this Contract.

41.3 The Contract Price may be varied only in accordance with the Contract. The value of each payment will be established by the rules set out in this Chapter 6.

Article 42 APPLICATIONS AND PROCEDURE FOR PAYMENT

INVOICE PERIODS

42.1 With respect to any Invoice Period, the Contractor shall be entitled to apply for the payment of the amount corresponding to progress on the Works and/or milestone if it has achieved such milestone within that Invoice Period.

APPLICATIONS FOR PAYMENT

42.2 The Contractor shall submit applications for payment in the currency(ies) of the Contract for the amounts that are associated with the progress of the Works (including claims) and/or milestones achieved in an Invoice Period after the last Day in that Invoice Period.

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42.3 Applications for payment shall be submitted in the form set out in an Appendix (if any), or, if there is no such Appendix, in a form established by the Contractor and agreed by the Employer.

CERTIFICATION OF PAYMENT

42.4 The Employer shall certify to the Contractor the amount due and payable to the Contractor with respect to each application for payment. The Employer shall certify the entirety of the amount set out in the Contractor’s application for payment other than the following:

  1. an amount included in the application for payment that has been included fraudulently or in error;
  2. with respect to any milestone, the amount associated with that milestone, if the Contractor has not submitted the documentation required to be submitted for that milestone as set out in the Contract;
  3. any amount to be paid by the Contractor for the invoice period covered subject to Article 27.2;
  4. subject to Article 30.2, any amounts paid by the Employer in order to discharge, or reserved for the purposes of discharging, any lien, encumbrance or third-party right created on or in respect of the Works or any work, materials, supplies or Plant unless, if necessary, the Contractor has provided adequate security for such amounts to the Employer in form and amount reasonably satisfactory to the Employer; and
  5. if this Contract is terminated by either Party, the Employer shall not be obligated to make further payments except in accordance with Articles 56 and 57 and Chapter 13.

NOTIFICATION OF THE CERTIFIED AMOUNT

42.5 The Employer shall notify the amount to which the Contractor is entitled on or before the tenth Business Day after the Employer’s receipt of the Contractor’s application for payment. The amount stated in that notice shall be the “certified amount”. If the Employer does not certify the entire amount claimed in the Contractor’s application for payment, the Employer shall give a reasoned explanation for not certifying the difference at the same time as it certifies the amount acknowledged as due. If the Employer does not provide the Contractor with reasons for non-certification of all or part of the Contractor’s application for payment, then the entire amount of the Contractor’s application for payment shall be deemed certified.

SUBMISSION OF THE INVOICE

42.6 The amount certified or deemed certified shall be a sum due and payable, and the Contractor shall be entitled to issue the corresponding invoice. The invoice shall be payable by the Employer 20 Days after the Day on which the Employer receives the Contractor’s invoice (and if such Day is not a Business Day, then on the immediately following Business Day).

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42.7 If the Employer does not certify the entire amount claimed in the Contractor’s application for payment, invoicing by the Contractor for a lesser amount does not signify that the Contractor accepts that the Employer is discharged from the payment of the amount not certified. Such sums are considered to be notified as sums claimed under Chapter 13, which may eventually be dealt with by the dispute procedure in that Chapter.

NO WITHHOLDING

42.8 The Employer shall not be entitled to withhold or deduct from any payment any amounts (other than amounts described under Article 42.4) in respect of set-off, abatement or counterclaim unless and until the CDB has decided that the Employer may withhold or deduct such amount. The CDB may be called upon at any time to determine the validity of the Employer’s withholding of any kind.

42.9 All payments made under this Contract shall be made by the method set out in an Appendix (if any), and otherwise by bank transfer to an account or accounts nominated by the Contractor.

42.10 Any payment that the Employer is not obliged to make under Article 42.4 shall be made, without interest, together with the next payment applied for that falls due, after satisfaction by the Contractor of the conditions described in that Article and/or the correction of any Defect necessary to enable certification of such amount. Unless otherwise agreed, there is no right to keep retention money (in the sense of a percentage of a sum otherwise due for the performance of the Works).

PAYMENT DOES NOT CONSTITUTE ACCEPTANCE OF THE WORKS

42.11 No payment to the Contractor by the Employer, with the exception of the final payment, shall constitute an acceptance of any of the Works to be performed or furnished by the Contractor or shall relieve the Contractor of any of its obligations or liabilities with respect thereto.

Article 43 VAT/GST OR EQUIVALENT CONSUMPTION TAXES

43.1 If under this Contract any payment is due to one Party from the other (including Delay Damages or bonuses due under Article 37), they shall be paid as they fall due, along with accrued financing charges at the rate described in Article 44. Each invoice shall be a VAT/GST (Value Added Tax/Goods and Services Tax) invoice where VAT/GST is due on such payment, and, to the extent required by law, each Party shall pay VAT/GST in addition to the amount invoiced.

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Article 44 FINANCING CHARGES FOR LATE RECOGNITION OF RIGHTS BETWEEN THE PARTIES

44.1 Without prejudice to any other right or remedy, any payment that becomes due, or should become due, to either Party under the Contract (including claims that have to be established under Chapter 13) shall bear simple (uncompounded) financing charges (i.e. interest) from the Date that the payment becomes due or should become due until the Date of Payment at the rate agreed by the Parties, or, if there has been no such agreement, at three percentage points above the basic lending rate for immediate money of the central bank of the country or countries of the currency or currencies of payment.

44.2 The purpose of this payment is to compensate the Party affected for the delay in receipt of money otherwise due to it. The right to this payment is established automatically on the occurrence of a non-payment for whatever reason and is due and payable on demand. The Employer shall certify all such claims at monthly intervals as they arise, unless the Employer has referred the claims to the CDB. The CDB shall also certify any sums it determines to be due under this Article 44 on a monthly basis, unless such sums have already been certified by the Employer.