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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
by ICC PUBLISHING S.A.
14.1 Scope of Supplier’s obligations. The Supplier undertakes to supervise the Erection, Erection Testing, Start Up and Performance Testing, as set out in detail hereafter.
14.2 Purchaser’s personnel. The Purchaser shall provide the Supplier, for all the time that it is necessary, sufficient qualified personnel for the performance of the activities indicated in Article 14.1 hereabove. The number and the qualifications of such personnel are specified in Annex 8-C; however, should it appear that the personnel indicated in Annex 8-C are not sufficient, the Purchaser will provide such further personnel as appears to be necessary.
14.3 Preparatory work. The Purchaser shall complete, within the deadline fixed in the Time Schedule for starting the Erection, all works, foundations, utility connections for which it is responsible, as provided in the Layout, and will provide any supplies that are not at the Supplier’s charge as well as whatever may be necessary for the Erection.
14.4 Storage of the Equipment. The Purchaser will store all received Equipment at the Site (or at another place of its choice) at its risk and expense in premises that are adequate for preserving the Equipment from any loss, damage or deterioration.
14.5 Erection Equipment. The Parties will provide in a timely manner the Erection Equipment and services in accordance with Annex 8-A and 8-B.
14.6 Telephone and fax connections. The Purchaser shall provide international telephone and fax connections to areas outside the Country.
Parties
15.1 Responsibilities of the Parties with respect to operations at the Site. The Purchaser shall be responsible for the working conditions and for maintaining order on the Site, and for the care, custody and safekeeping of the Equipment and all other goods which are at the Site.[Page31:]The Supplier shall be responsible for the supervision during the stages from the start of Erection until Taking Over. The Supplier’s Site Representative shall be responsible for all questions regarding the timing and operation during Erection, Start Up and Performance Testing.The Purchaser shall ensure that its personnel and its contractors act in accordance with the reasonable instructions of the Supplier’s Site Representative. Any possible disagreement between the Parties shall be noted in the work diary indicated in Article 15.2 hereunder.
15.2 Work diary. The Site Representatives will, during the period from the commencement of Erection until Taking Over, keep a work diary on which they will jointly record, in chronological order, all the activities which have been performed, any substantial facts which may influence the progress of the operations, and the hours spent by each member of Supplier’s personnel. The work diary will be signed every day by the Site Representatives of the Parties (or by their authorised representatives).
15.3 Interpreter. During the stay of Supplier’s personnel in the Country, the Purchaser shall make available, on the request of the Supplier, an interpreter fluent in English and the dominant language of the Country.
16.1 Number of persons and duration. The Supplier will provide its technical personnel for the performance of the activities indicated in Article 14.1. The number of persons and periods of stay are indicated in Annex 7-A. The Supplier warrants that the manpower indicated above is sufficient, under normal conditions, for providing the services that are indicated in Article 14.1.
16.2 Additional manpower. Should it appear necessary to provide Supplier’s technical personnel at the Site for periods of time which exceed those indicated in Annex 7-A, the Supplier shall make available such personnel, at the Purchaser’s request, as soon as available. To the extent the need of such additional manpower is due to reasons for which the Supplier is not responsible, the Purchaser shall pay for each additional man/day of such personnel the daily fees indicated in Annex 7-B. Such daily fees will be invoiced monthly to the Purchaser and will be paid by the latter before the end of the month following the month of the respective invoice.
17.1 Travel expenses. Travel expenses of Supplier’s personnel from the Supplier’s business place to the Site will be for the Supplier’s account. Local travel expenses between the place where the personnel is lodged and the Site will be borne by the Purchaser.
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17.2 Living expenses. The Purchaser will directly pay all living expenses (board and lodging, etc.) incurred by Supplier’s personnel in the Country.
18.1 Notice of availability and confirmation by Purchaser. Not later than thirty (30) days before the deadline indicated in the Time Schedule for the commencement of Erection, the Supplier shall notify the Purchaser of the date on which the Erection shall start. The Purchaser shall confirm without delay, and in any case with an advance of at least fifteen (15) days the date of commencement of Erection, that it is ready to start Erection and that the Erection Equipment, services and personnel specified in Annex 8 will be available before such date.
18.2 Personnel present at the Site. The Supplier shall ensure that its Site Representative and such other personnel as may be necessary for the preparation of the Erection are present at the Site in due time. The remaining personnel shall be present as required.
18.3 Preparation of the Erection. Before starting Erection the Site Representatives will jointly check that:
18.4 Commencement of the Erection. The Erection shall be deemed to have started when the Parties sign a protocol stating that all the conditions for commencing the Erection are met. The Parties may however decide to commence Erection also in case some of the above conditions are not met, provided such fact is mentioned in the protocol, together with an indication of the measures to be taken in order to remedy the unmet conditions.
18.5 Carrying out of the Erection. The Erection will be carried out by the Purchaser’s personnel under the supervision and guidance of the technical personnel of the Supplier.The Supplier is entitled to inspect and check at any time the performance of the Erection and to give reasonable instructions to the Purchaser’s personnel.
19.1 Commencement of Erection Testing. As soon as the Erection has been completed, the Supplier will notify the Purchaser, at least fifteen (15) days in advance, of the date of commencement of the Erection Testing.
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19.2 Performance of Erection Testing. The Erection Testing shall be carried out by the Purchaser’s personnel under the supervision of the Supplier.The Purchaser shall put at the Supplier’s disposal, for the whole period of Erection Testing, whatever is necessary for its performance, such as skilled personnel, tools, spare parts, energy, raw materials, etc.
19.3 Completion of Erection Testing. When Erection Testing has been completed to the Supplier’s satisfaction, the Supplier shall so notify the Purchaser in writing.
20.1 Drawing up of the Erection Certificate. Immediately after the notification under Article 19.3, the Parties will inspect the Plant and will jointly draw up an Erection Certificate stating the completion of the Erection. The Erection Certificate shall in particular indicate:
20.2 Defaults or deficiencies. Should the above inspection reveal any defaults or deficiencies which do not allow the Start Up, the Party responsible for such deficiencies shall remedy them within the shortest possible time, and a new inspection shall be carried out before drawing up of the Erection Certificate. Minor defaults or deficiencies that do not hinder the Start Up shall not delay the drawing up of the Erection Certificate, but they shall be mentioned in the Erection Certificate, together with the indication of the deadlines and actions that the defaulting party will take to remedy them.
20.3 Completion of Erection Testing in absence of the Purchaser. If the inspection and/or Erection Testing are not carried out, and the Erection Certificate is not issued within thirty (30) days after the date of completion of the Erection Testing indicated in Article 19.3, due to the absence of the Purchaser’s Representatives or for any other reason for which the Purchaser is responsible, the Erection shall be deemed to be completed when such 30-day term expires, and the Supplier will be entitled to draw up the Erection Certificate without the Purchaser’s participation.
21.1 Commencement of Start Up. When the Erection Testing has been completed the Supplier shall commence the Start Up.
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21.2 Operation of the Plant during Start Up. During the Start Up the Supplier shall be responsible for the technical operation of the Plant, and will operate the technical process with its supervisory personnel together with the Purchaser’s operators. The Purchaser shall instruct its personnel diligently to observe all the directions given by the Supplier’s supervisory personnel.
21.3 Purchaser’s obligations during Start Up. During the Start Up period the Purchaser shall make available its operating personnel, tools, energy, raw materials indicated by the Supplier, spare parts and whatever else may be necessary for the correct operation of the Plant.
22.1 Commencement of the tests. When the Supplier considers that the Plant is ready for Performance Testing, it shall notify the Purchaser in writing of its intention to start the Performance Testing and will indicate the date on which such testing can be commenced. Within ten (10) days from receipt of the above notice, the Purchaser shall name its representatives to witness the Performance Testing. If the Purchaser does not fulfil the above obligation, the Performance Testing may start at the notified commencement date without the witnessing of Purchaser’s Representatives.
22.2 Performance of the tests and protocol. Performance Testing will be carried out in accordance with the Performance Test Procedures set out in Annex 9 and, with respect to matters not indicated in such document, in accordance with the standards and principles normally applied in test runs for plants of a similar kind. The Supplier shall draw up a protocol that will report all the results of the tests and which will be signed by both Parties. If there is disagreement between the Parties about the successful completion of the Performance Testing, the Site Representatives will state their respective point of view in the protocol.
22.3 Repeated Performance Testing. If testing reveals that the Plant does not meet the Guaranteed Performance, the Supplier shall without delay take all necessary steps to correct such deviation. If the deviation is not insignificant, new testing will be carried out within a reasonable time at the request of either party, with respect to the portion of the Plant that did not meet the Guaranteed Performance.
22.4 Time-limit for Performance Testing. In any case the Performance Testing must be completed within sixty (60) days, or such other period as may be agreed in writing by the Parties, from the date on which Start Up has commenced. If it has not been possible to carry out the Performance Testing, or the repeated Performance Testing, within the above time-limit, for reasons for which the Purchaser is responsible, such time limit shall be extended for a further sixty (60)[Page35:]days. If after such further time limit no Performance Testing has been carried out, and provided this is due to reasons for which the Purchaser is responsible, the Performance Testing shall be considered as having been successfully carried out at that date.
22.5 Modifications, additions and repairs. The Supplier shall, during the time from completion of the Erection to Taking Over perform, at its expense, all repairs, modifications, replacements and additions to the Equipment that are necessary for the purpose of attaining the Guaranteed Performance and respecting the Supplier’s obligations under this Contract.
23.1 Taking Over. The Plant shall be deemed to have been taken over by the Purchaser, and Taking Over is deemed therefore to occur at the time when:
23.2 Taking Over Certificate. Within five (5) days from the date on which Taking Over has occurred, the Purchaser shall issue the Taking Over Certificate conforming to the form in Annex 11 to confirm Taking Over in accordance with Article 23.1. In the event that the Purchaser has not so issued the Taking Over Certificate notwithstanding that Taking Over has occurred in accordance with Article 23.1, the Supplier shall issue the Taking Over Certificate and submit it to the Purchaser.
23.3 Minor adjustments, etc. Deviations from the agreed operating characteristics, together with other deficiencies or shortcomings in the Plant, including but not limited to those specified in the protocol mentioned in Article 20.2, that can be rectified by means of minor adjustments or additions and do not hinder the Plant from being operated in accordance with the Contract, shall not constitute any due reasons for not Taking Over the Plant.Such deviations shall be considered a defect under Article 31.
23.4 No right to dispose of the Plant. Until the Plant has been taken over in accordance with Article 23.1, the Purchaser shall have no right to dispose of the Plant and the Equipment without written agreement between the Parties1 , nor shall the Purchaser be entitled to take the Plant or portions thereof into operation other than for Performance Testing purposes.
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23.5 Taking into operation without the Supplier’s permission. If the Plant, or a portion thereof, is taken into operation without the Supplier’s permission, and before Taking Over in accordance with Article 23.1, the Plant, or that portion of it which has been taken into operation, shall be deemed to have been taken over.The Supplier shall notify the Purchaser in writing of the date and time when the Plant or portion thereof is deemed to have been taken over under the provisions of this paragraph.
23.6 Responsibility for care, custody and control. Upon Taking Over the Purchaser assumes full responsibility for the Plant and its operation.
24.1 Personnel to be put at the Purchaser’s disposal for training. The Purchaser shall provide skilled personnel to be trained in the operation of the Plant. In particular, such personnel shall have previous experience in the operation and maintenance of technical and computerised systems similar to the ones found in the Plant.
24.2 Training in the Supplier’s country. Specialised personnel of the Purchaser shall be given an adequate opportunity to study the operation of the Equipment in the Supplier’s country, as indicated in detail in Annex 10-A.The travel and living expenses and all other expenses for such personnel shall be borne by the Purchaser.
24.3 Training at the Site. The Supplier agrees to send one or more technicians or experts to train the Purchaser’s personnel at the Site in connection with the operation of the Plant. The number of persons dispatched and the duration of their presence at the Site is indicated in Annex 10-B.The expenses for travel, board and lodging of Supplier’s personnel will be borne by the Parties in accordance with Article 17.
24.4 No provision of production know-how without separate agreement. The Parties may agree, under a separate licence or transfer of technology agreement (Annex 12), upon the supply by the Supplier (or by a third party indicated by the Supplier) of the know-how and technical assistance necessary for manufacturing the Products. In the absence of such agreement, the Supplier’s obligations will only extend to providing to personnel skilled in the manufacture of the Products the training for operating the Plant.
1 Any such agreement should incorporate the changes in the Time Schedule and the Purchaser’s responsibilities arising out of the fact that the Purchaser is permitted to dispose of the Plant or Equipment and to take the Plant or portions thereof into operation before Taking Over.