Article 59 Confidentiality

59.1 This Article 59 relates to information that a Party wishes to have treated as confidential. While this Article 59 sets out general guidelines for such treatment, the Party wishing to have the information treated as confidential may wish to enter into a more detailed confidentiality agreement such as the ICC Model Confidentiality Agreement. In the event that the Parties do enter such an agreement the provisions of Articles 59.2 through 59.6 below shall not apply.

59.2 Each Party shall use all business and technical information received from the other Party in connection with this Subcontract, 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 Subcontract, provided such third parties are or become subject to an equivalent confidentiality obligation.

59.3 Notwithstanding the provisions of Article 59.2, any Party may disclose any confidential information if, and to the extent, 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[Page79:]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.

59.4 The foregoing confidentiality obligation shall also apply to the contents of this Subcontract.

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

59.6 Publications of any kind on or in any media (including electronic media) by a Party or initiated by a Party referring to the Subcontract 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 subcontractors, 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 Subcontract 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 Subcontract and thereafter they will comply with and ensure that their subcontractors, 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 Subcontract as if written out here in full.

60.3 The Parties specifically confirm that the entity rendering a decision in accordance with Chapter 13 and/or arbitral tribunal, as the case may be, shall have the ability to determine the civil consequences of any alleged nonobservance 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 Subcontract unless such conduct deprives the other of the whole or substantially the whole benefit of the Subcontract as a result of the action complained of and the Party alleging such conduct has terminated the Subcontract under the provisions of the Main Contract, according to Article 2.2.

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Article 61 entire agreement, severability and amendments to the subcontract

Entire agreement

61.1 The Subcontract constitutes the entire agreement between the Parties with respect to the subject matter of the Subcontract 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 Subcontract which are not incorporated by writing into the Subcontract.

Modifications to the Subcontract

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

61.3 If any provision or condition of the Subcontract 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 Subcontract 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 entity rendering a decision in accordance with Chapter 13 and/or an 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 Subcontract 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 the Subcontract Works have commenced on Site, it will not allege that the person or persons who signed the Subcontract on behalf of that Party lacked the capacity or authority to execute the Subcontract, or that there was some other formal invalidity or incapacity that affected the validity or enforceability of the Subcontract against that Party. In particular, actual or alleged lack of governmental or managing board authorizations or permits shall not excuse non-performance or nonobservance of the Subcontract by a Party.

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

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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 Subcontract. It is agreed that this Subcontract is a commercial transaction under international law and that governmental or state bodies entering into this Subcontract do so with the intention of making the Subcontract 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.

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:

(a) those persons shall be deemed to be jointly and severally liable to the other Party for the performance of the Subcontract; and

(b) 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 Subcontract 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 Subcontract without the written consent of the other Party.

Article 63 subcontractor notification and responsibility and assignment of subcontractor’s obligations

63.1 The Subcontractor shall not subcontract the whole of the Subcontract without the knowledge and express written agreement of the Main Contractor. Each Party shall be responsible for the acts or defaults of its subcontractors, agents, officers or employees while performing the Subcontract as if they were the acts or defaults of the Party.

63.2 Where agreed by the Parties at the Subcontract Date or where a subcontractor is named in the Subcontract, the Subcontractor shall give the Main Contractor and the Employer not less than 28 Days’ Notice of:

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

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

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Assignment of Subcontractor's obligations

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

Article 64 assignment of the subcontract by either party

64.1 Neither Party shall, without the express written consent of the other Party, which consent shall not be unreasonably withheld, novate, assign or otherwise transfer to any third party the Subcontract or a part thereof or assign 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 Subcontract.

64.2 Subcontracting is not considered to be assignment.

Article 65 Communications, including notices and consents

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

  1. 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

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

(i) gives Notice of another address, communication shall thereafter be delivered accordingly; and

(ii) 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: [Page83:]

  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 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 following Business Day. References to time in this Article 65 are to local time and Business Days in the country of the intended recipient.

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

  1. the Subcontract 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 Subcontract, the Chapter, Article and other headings are intended to be included in the Subcontract and its interpretation; and
  6. all Notices, notifications, certificates, consents, approvals, decisions and requests under this Subcontract shall indicate the Article(s) of this Subcontract under which they are given or made.