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Article 33 Force majeure

33.1 Definition of force majeure. Where a Party fails to perform one or more of its obligations under this Contract, the consequences set out in Articles 33.4 to 33.7 will follow if and to the extent that the Party proves:

1. that its failure to perform was caused by an impediment beyond its reasonable control; and
2. that it could not reasonably have been expected to have taken the occurrence of the impediment into account at the time of the conclusion of the Contract; and
3. that it could not reasonably have avoided or overcome the effects of the impediment.

33.2 Failure to perform by a third party. Where a Party fails to perform one or more of its obligations under this Contract because of a default by a third party whom it has engaged to perform the whole or part of this Contract, the consequences set out in paragraphs hereunder shall apply to that Party only:

1. if and to the extent that Party establishes the requirements set out in Article 33.1; and
2. if and to the extent that Party proves that the same requirements apply to the third party.

33.3 Listed impediments. In the absence of proof to the contrary and unless otherwise agreed in this Contract expressly or impliedly, a Party invoking this force majeure clause shall be presumed to have established the conditions described in paragraph 33.1 (a) and (b) in case of the occurrence of one or more of the following impediments:

1. war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilisation;
2. civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience;
3. act of terrorism, sabotage or piracy;
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4. act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalisation;
5. act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought;
6. explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged breakdown of transport, telecommunication or electric current;
7. general labour disturbance such as but not limited to boycott, strike and lockout, go-slow, occupation of factories and premises.

33.4 Consequences of force majeure. A Party successfully invoking Article 33.1 is, subject to Article 33.5 below, relieved of:

1. its duty to perform its obligations under this Contract; and
2. any liability in damages or any other contractual remedy for breach of contract from the time at which the impediment causes the failure to perform if notice thereof is given without delay or, if notice thereof is not given without delay, from the time at which notice thereof reaches the other Party.

33.5 Temporary force majeure. Where the effect of the impediment or event invoked is temporary, the consequences set out under paragraph 33.4 above shall apply only insofar, to the extent that and as long as the impediment or the listed event invoked impedes performance by the Party invoking this clause of its contractual duties. Where this paragraph applies, the Party invoking this clause is under an obligation to notify the other Party as soon as the impediment or listed event ceases to impede performance of its contractual duties.

33.6 Duty to mitigate. A Party invoking this clause is under an obligation to take all reasonable means to limit the effect of the impediment or event invoked upon performance of its contractual duties.

33.7 Contract termination in case of lasting force majeure. Where the duration of the impediment invoked under Article 33.1 or of the listed event invoked under Article 33.3 exceeds six (6) months and has the effect of substantially depriving either or both of the Parties of what they were reasonably entitled to expect under this Contract, either Party has the right to terminate this Contract by notification within a reasonable period to the other Party.
Where this Article 33.7 applies and where either Party has, by reason of anything done by the other Party in the performance of this Contract, derived a benefit before the termination of this Contract, the Party deriving such a benefit shall be under a duty to pay to the other Party a sum of money equivalent to the value of such benefit.

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Article 34 Confidentiality

34.1 Definition of Confidential Information. Confidential Information in this Contract means any and all technical, financial or commercial information stated by either party to be confidential or confidential in nature, provided, however, that the term “Confidential Information” shall not include any information which:

1. was already known to the receiving Party at the time of disclosure by or on behalf of the other Party; or
2. at the time of disclosure to a Party is part of literature or other sources of knowledge accessible to the public or which after such disclosure becomes part of literature or other sources of knowledge accessible to the public, without the culpable negligence or action of the other Party, its employees or third parties it is responsible for; or
3. was available to the receiving Party from a source other than the disclosing Party, provided that such source is not under any confidentiality obligation to the disclosing Party; or
4. is developed by a Party independently of any information disclosed by or on behalf of the disclosing Party.

The burden of proof in respect of this Article 34 is on the party claiming that any of the exceptions specified under (a) to (d) shall apply.

34.2 Duty of confidentiality. Each Party shall keep in strict confidence all Confidential Information obtained from the other Party in the course of performance of this Contract. Each Party shall use Confidential Information only to the extent necessary to fulfil its obligations under this Contract and for the use of the Plant.

34.3 Disclosure to employees. Each Party may disclose Confidential Information to its employees and to third parties only to the extent strictly necessary for the performance of this Contract and for the use of the Plant, or as required by law. A Party so disclosing shall cause its employees and third parties to observe the obligations of this Article.

34.4 Storage of Confidential Information. Each Party shall store away carefully the Confidential Information disclosed by the other Party and shall take reasonable measures to prevent disclosure to unauthorised parties. A receiving Party shall copy the Confidential Information disclosed by the other Party only to the extent that this is necessary in the context of the purpose.

34.5 Survival. The obligations contained in this Article shall survive any termination or expiration of this Contract.

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Article 35 Contract documents

35.1 Contract and contract documents. This Contract includes this document and its attached Annexes specified hereafter and subsequent alterations and additions thereto agreed in writing.
This Contract constitutes the entire agreement between the Supplier and the Purchaser with respect to the subject matter of the Contract and supersedes all communications, negotiations and agreements (whether written or oral) of the Parties with respect thereto made prior to the date of the Contract.
Wherever in this contract the word “agreed” is used, it shall be read as meaning agreed in writing or confirmed in writing.

35.2 Attachments. The following attachments constitute an integral part of this Contract:

Contract Schedules – Specific issues to be determined by the Parties

Contract Schedule A - Definition of the Site

Contract Schedule B - Events to occur before Commencement Date (Article 3.2)

Contract Schedule C - Contract termination before effectiveness (Article 3.3)

Contract Schedule D - Information needed for preparing the Layout of the Plant (Article 8.1)

Contract Schedule E - Shipment of Equipment – Marking – Packing list and other documents

Contract Schedule F - Price of the Contract (Article 25)

Contract Schedule G - Payment conditions (Article 26)

Contract Schedule H - Bank guarantees (Article 27)

Contract Schedule I - Liquidated damages (Article 29)

Annex 1 - General description of the Plant, Guaranteed Performance and Minimum Performance levels

Annex 2 - Equipment and other goods to be provided by the Supplier

Annex 3 - Main sub-contractors and sub-suppliers (Article 6.2)

Annex 4 - Technical documentation to be provided by the Supplier (Article 9)

Annex 5 - Time Schedule

Annex 6 - Raw materials, components and consumables

Annex 7 - Technical personnel provided by Supplier for supervision and assistance (Article 16)

Annex 8 - Erection equipment (specification)/Specialised Personnel provided by Purchaser

Annex 9 - Performance Test Procedures

Annex 10 - Training of Purchaser’s personnel (Article 24)

Annex 11 - Taking Over Certificate

Annex 12 - Product Know-How license (if applicable)

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Article 36 Applicable law

36.2 Internationally mandatory rules. In any event, consideration shall be given to mandatory provisions of the law of a country having a close connection with this Contract which would be applicable even if this Contract is governed by a foreign law. Any such provisions will be taken into account to the extent they embody principles that are universally recognised and provided their application appears reasonable in the context of international trade.

Article 37 Resolution of disputes

37.1 Alternative Dispute Resolution. The Parties may at any time, without prejudice to any other proceedings, seek to settle any dispute arising out of or in connection with this Contract in accordance with the ICC ADR Rules².

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