Article 59 CONFIDENTIALITY

59.1 Each Party shall use all business and technical information received from the other Party in connection with this Contract, and which the disclosing Party expressly states to be confidential or the confidential nature of which can be assumed on the basis of the circumstances of its disclosure or its contents, solely for the purposes for which it was provided; and shall treat it in the same way as its own business secrets; and not make it available to third parties, unless the business or technical information in question:

  1. is generally available from public sources or in the public domain;
  2. is received at any time from any third party without a nondisclosure obligation to the disclosing Party;
  3. is shown either to have been developed independently by the receiving Party without reliance on the disclosing Party’s confidential information or to have been known to the receiving Party prior to its disclosure by the disclosing Party; or
  4. must be disclosed to third parties for the purpose of performing this Contract, provided such third parties are or become subject to an equivalent confidentiality obligation.

59.2 Notwithstanding the provisions of Article 59.1, any Party may disclose any confidential information if, and to the extent that, it is required to do so by the disclosure requirements of any law, rule, or regulation or any order, decree, subpoena, or ruling or other similar process of any court, tribunal, arbitral tribunal or governmental instrumentality or of any regulatory body having jurisdiction. Prior to making or permitting any Party to make such disclosure the disclosing Party shall – to the extent possible – provide the Party that initially provided such information with written notice of any such requirement so that that Party may seek a protective order or other appropriate remedy. The Party required to make such disclosure shall cooperate with the Party that initially provided the information, in order to minimize and protect against the disclosure of the confidential information and with any efforts by the Party seeking to protect the information from disclosure to obtain proprietary or confidential treatment for such confidential information by the third party to whom the confidential information is disclosed or to seek protective orders limiting the dissemination and use of the confidential information. Nothing herein shall prevent any Party from objecting to the rule, regulation, or order requiring the disclosure.

59.3 The foregoing confidentiality obligation shall also apply to the contents of this Contract.

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59.4 The confidentiality obligation created by this Article 59 shall continue for a period of four years after Final Acceptance.

59.5 Publications of any kind on or in any media (including electronic media) by a Party or initiated by a Party referring to the Works shall require the prior written approval of the other Party, which approval shall not unreasonably be withheld.

Article 60 BRIBERY, GIFTS, INDUCEMENTS OR REWARDS

60.1 The Parties hereby warrant, represent and undertake to each other that at the Date hereof, neither Party or its Sub-contractors, agents, officers or any third parties on their behalf, has offered, given, demanded, requested, accepted or agreed to any undue pecuniary or other advantage of any kind (or implied or inferred that they will or might do any such thing at any time in the future) in any way connected with the Contract or any other contract between the Parties (or any related parties).

60.2 The Parties agree that at all times throughout the course of the Contract and thereafter they will comply with and ensure that their Sub-contractors, agents, servants, employees and officers comply with the most current version of the ICC Rules of Conduct and Recommendations to Combat Extortion and Bribery in International Business Transactions, which are incorporated by reference into this Contract as if written out here in full.

60.3 The Parties specifically confirm that the CDB and/or arbitral tribunal, as the case may be, shall have the ability to determine the civil consequences of any alleged non-observance of this Article 60 to the exclusion of the (non-criminal) courts.

60.4 Notwithstanding any applicable laws, no fraud or other illegal conduct will discharge either Party from the Contract unless such conduct deprives the other of the whole, or substantially the whole, benefit of the Contract as a result of the action complained of and the Party alleging such conduct has terminated the Contract under Article 57.

Article 61 ENTIRE AGREEMENT, SEVERABILITY AND AMENDMENTS TO THE CONTRACT

ENTIRE AGREEMENT

61.1 The Contract constitutes the entire agreement between the Parties with respect to the subject matter of the Contract and supersedes all communications, representations, negotiations and agreements (whether written or oral) of the Parties with respect thereto made prior to the Date of the Contract that are not incorporated by writing into the Contract.

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MODIFICATIONS TO THE CONTRACT

61.2 Any changes to this Contract must be evidenced in writing. No written communication or action by either Party shall be effective to modify or amend the Contract, unless the Parties have expressly agreed or impliedly acknowledged in written communications between them that the Contract should be or has been so modified or amended.

61.3 If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable, such prohibition, invalidity or unenforceability shall not affect the validity or enforceability of any other provision or condition of the Contract or its performance in a jurisdiction where it is not prohibited or rendered invalid. Further, to the extent possible, the provision or condition will be replaced through agreement or by the CDB and/or arbitral tribunal, as the case may be, by a valid and enforceable provision or condition with the same or a similar result.

61.4 Neither Party waives any of its rights under this Contract by failing to exercise them. Individual waivers do not amount to a general waiver.

ALLEGING LACK OF CAPACITY

61.5 Each Party warrants that, once work has commenced on Site, it will not allege that the person or persons who signed the Contract on behalf of that Party lacked the capacity or authority to execute the Contract, or that there was some other formal invalidity or incapacity that affected the validity or enforceability of the Contract against that Party. In particular, actual or alleged lack of governmental or managing board authorizations or permits shall not excuse non-performance or non-observance of the Contract by a Party.

61.6 If a Party named in the Contract does not have separate legal personality under the laws governing its status, the definition of the Party bound by this Contract includes any organization of which it is a part that does have separate legal personality.

WAIVER OF SOVEREIGN IMMUNITY AND SIMILAR PRIVILEGES

61.7 Any sovereign immunity or immunity from execution or attachment is hereby waived by both Parties to this Contract. It is agreed that this Contract is a commercial transaction under international law and that governmental or state bodies entering into this Contract do so with the intention of making the Contract effective in accordance with its terms and so hereby waive any and all sovereign immunity, immunity from attachment or administrative law requirements that otherwise might have applied to them.

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Article 62 JOINT AND SEVERAL LIABILITY

62.1 If either Party constitutes (under applicable laws) a joint venture, consortium, partnership or other unincorporated grouping of two or more persons, however it is described:

  1. those persons shall be deemed to be jointly and severally liable to the other Party for the performance of the Contract; and
  2. those persons shall notify the other Party of their leader, who shall have authority to bind that Party and each of those persons.

62.2 Neither Party to this Contract nor the members of the unincorporated grouping described in Article 62.1 shall alter its legal status or divest itself of legal responsibility for its obligations under the Contract without the written consent of the other Party.

Article 63 SUB-CONTRACTOR NOTIFICATION AND RESPONSIBILITY AND ASSIGNMENT OF SUB-CONTRACTOR’S OBLIGATIONS

63.1 Neither Party shall subcontract the whole of the Contract without the knowledge and express written agreement of the other Party. Each Party shall be responsible for the acts or defaults of its Sub-contractors, agents, officers or employees while performing the Contract as if they were the acts or defaults of the Party.

63.2 Where agreed by the Parties at the Contract Date or where the Sub-contractor is named in the Contract, the Contractor shall give the Employer not less than 28 Days’ notice of:

  1. the intended appointment of a Sub-contractor, with reasonably detailed particulars of the category of work, which shall include its relevant experience; and
  2. the intended commencement of the Sub-contractor’s work on the Site.

63.3 Except where otherwise agreed in this Contract, neither Party has any other rights in relation to the appointment, terms of engagement, scope of work or any other aspects of a Sub-contractor’s work.

ASSIGNMENT OF SUB-CONTRACTOR’S OBLIGATIONS

63.4 If a Sub-contractor has undertaken a continuing and assignable obligation to the Contractor for the Works designed or executed, or goods, materials or Plant supplied by that Sub-contractor, and if the obligation extends beyond the expiry of the last Defect Correction Period, the Contractor shall, upon the expiry of the last Defect Correction Period, and if requested so to do, assign the benefit of such obligation to the Employer for its unexpired duration. Any such assignment shall be at the expense of the Employer.

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Article 64 ASSIGNMENT OF THE CONTRACT BY EITHER PARTY

64.1 Neither Party shall, without the express written consent of the other Party, which consent shall not be unreasonably withheld, assign to any third party the Contract or a part thereof or any right, benefit, obligation or interest therein, except that each of the Parties shall be able to assign either absolutely or by way of charge any money payable to it, which may become payable under the Contract.

64.2 Sub-contracting is not considered to be assignment.

Article 65 COMMUNICATIONS, INCLUDING NOTICES AND CONSENTS

65.1 Wherever the Conditions of Contract provide for the giving or issuing of approvals, certificates, consents, decisions, notices, notifications and/or requests, these communications shall be:

(a) in writing and delivered by hand (against receipt), sent by mail or courier, or transmitted by facsimile, electronic mail with confirmation of receipt, or any other system of electronic transmission or storage of information used by the Parties; and

(b) delivered, sent or transmitted to the address for the recipient’s communications as stated elsewhere in the Contract (the Schedule of Contractual Amendments) or otherwise normally used. However, if the recipient:

  1. gives notice of another address, communication shall thereafter be delivered accordingly; and
  2. has not stated otherwise when requesting an approval or consent, it may also be sent to the address from which the request was issued.

65.2 Approvals, certificates, consents, decisions, requests, notices and/or notifications shall not be unreasonably withheld or delayed by either Party.

65.3 Any notice or other communication served by hand, fax, e-mail or post shall be deemed to have been received:

  1. in the case of delivery by hand or by courier, when delivered against an acknowledgement of receipt;
  2. in the case of fax or e-mail (with confirmation of receipt requested) sent to the correct delivery address, the next local Business Day following the Day of successful transmission; or
  3. in the case of registered mail with a return receipt, at 11:00 on the Date of actual receipt,

provided that in each case where delivery by hand, courier or by fax occurs after 18:00 on a Business Day, or on a Day that is not a Business Day, delivery shall be deemed to occur at 9:00 on the next following Business Day. References to time in this Article 65 are to local time and Business Days in the country of the intended recipient.

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65.4 In the Contract, except where the context requires otherwise:

  1. the Contract and language are neutral in relation to gender;
  2. words indicating the singular also include the plural and words indicating the plural also include the singular;
  3. provisions including the word “agree”, “agreed” or “agreement” require the agreement to be either in writing or recorded in writing (before or after the agreement);
  4. “written” or “in writing” means hand-written, type-written, printed or electronically made, and resulting in a record with an electronic signature or confirmation of receipt;
  5. in understanding this Contract, the Chapter, Article and other headings are intended to be included in the Contract and its interpretation; and
  6. all notices, notifications, certificates, consents, approvals, decisions and requests under this Contract shall indicate the Article(s) of this Contract under which they are given or made.