Article 57 Confidentiality

57.1 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.

57.2 Notwithstanding the provisions of Article 57.1, 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 co-operate 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.

57.3 The foregoing confidentiality obligation shall also apply to the existence and contents of this Contract.

57.4 The confidentiality obligation created by this Article 57 shall continue for a period of four (4) years after Final Acceptance.

57.5 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 58 Prohibition of corruption and compliance with applicable laws and standards of ethics

58.1 Each of the Parties hereby undertakes that, at the date of the entering into force of the Contract, itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Contract, and that it has taken reasonable measures to prevent Subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.

58.2 The Parties agree that, at all times in connection with and throughout the course of the Contract and thereafter, they will comply with and that they will take reasonable measures to ensure that their Subcontractors, agents or other third parties, subject to their control or determining influence, will comply with Part I of the then-current version of the ICC Rules on Combating Corruption, as set out in full in Option II of the ICC Anti-corruption Clause 2012, which is attached as [Appendix I], forming, as a whole, part of this Contract.

[Page59:]

58.3 If a Party, as a result of the exercise of a contractually-provided audit right, of Party’s accounting books and financial records, or otherwise, brings evidence that the other Party has been engaging in material or repeated breaches of the provisions of Part I of the then-current version of the ICC Rules on Combating Corruption, it will notify the other Party accordingly and require such Party to take the necessary remedial action in a reasonable time and to inform it about such action. If the other Party fails to take the necessary remedial action, or if such remedial action is not possible, it may invoke a defence by proving that by the time the evidence of breach(es) had arisen, it had put into place adequate anti-corruption preventive measures, as described in Article 10 of the ICC Rules on Combating Corruption 2011, adapted to its particular circumstances and capable of detecting corruption and of promoting a culture of integrity in its organization. If no remedial action is taken or, as the case may be, the defence is not effectively invoked, the first Party may, at its discretion, either suspend the Contract or terminate it, without prejudice to the first Party’s rights to its other rights under the Contract or the applicable law, it being understood that all amounts contractually due at the time of suspension or termination of the Contract will remain payable, as far as permitted by applicable law.

58.4 The contractual consequences of any alleged non-compliance with this ICC Anti-Corruption Article will be determined according to Chapter 13.

58.5 Compliance with applicable laws and standards of ethics

Each Party further undertakes that it shall perform its obligations under this Contract in a legal manner, and in line with the applicable international labour standards and, more generally in line with the standards of ethics originating from its self-imposed obligations, from the Employer’s integrity policies to the extent they are part of the Contract or from the applicable international treaties, including the prohibition of fraud, coercion, collusion to achieve an illicit purpose and the violation of human rights.

58.6 For the purpose of permitting quality and compliance audits, based on corrective or preventative action identified with respect to the Contract, applicable law, Good Practice, international labour standards and applicable standards of ethics under Article 58.5, Contractor shall grant to authorised representatives of the Employer, upon reasonable Notice and during regular business hours, rights to access, proceed to on-site inspections and audit the Works and records, technical data, progress reports and Design and Contractor’s Documents including permission to take photographs, photocopies and/or, where necessary, samples of relevant materials. If necessary, the Contractor shall procure that the Employer has access to its Subcontractors’ premises.

Article 59 Exclusive remedies, entire agreement, severability, amendments to the Contract, Waivers

Exclusive remedies

59.1 The Parties’ rights, liabilities, responsibilities and remedies with respect to this Contract shall be exclusively those set forth in this Contract. Therefore, all claims for payment or compensation of any kind shall 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.

Entire agreement

59.2 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 which are not incorporated by writing into the Contract.

Modifications to the Contract

59.3 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 implicitly acknowledged in written communications between them that the Contract should be or has been so modified or amended.

59.4 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 shall be replaced through agreement or by the CDB, if the Parties have appointed one, and/or arbitral tribunal, as the case may be, by a valid and enforceable provision or condition with the same or a similar result.

[Page60:]

59.5 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

59.6 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 authorisations or permits shall not excuse non-performance or non-observance of the Contract by a Party.

59.7 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 organisation of which it is a part that does have separate legal personality.

Waiver of sovereign immunity and similar privileges

59.8 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.

Article 60 Joint and several liability

60.1 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.

60.2 Neither Party to this Contract nor the members of the unincorporated grouping described in Article 60.1 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 61 Subcontractor notification and responsibility and assignment of Subcontractor’s obligations

61.1 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 Subcontractors, agents, officers or employees while performing the Contract as if they were the acts or defaults of the Party.

61.2 The Contractor shall give the Employer not less than twenty-eight (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.

61.3 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 Subcontractor’s work.

61.4 If a Subcontractor has undertaken a continuing and assignable obligation to the Contractor for the Works designed or executed, or goods, materials or Plant supplied by that Subcontractor, 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.

Article 62 Assignment of the Contract by either Party

62.1 Unless otherwise provided in the Special Conditions, neither Party shall, without the express written consent of the other Party, 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.

[Page61:]

Article 63 Communications, including Notices and consents

63.1 Wherever the Conditions of Contract provide for the giving or issuing of approvals, certificates, consents, decisions, notices, notifications and/or requests (each a “Notice”), these Notices 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 in the Special Conditions or otherwise normally used. However, if the recipient:

  1. Gives Notice of another address, communication shall therefore be delivered accordingly ; and
  2. Has not stated otherwise when requesting an approval of consent, it may also be sent to the address from which the request was issued.

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

63.3 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 63 are to local time and Business Days in the country of the intended recipient.

63.4 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. All 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) even if the provision does not contain an explicit requirements to that effect;
  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 should indicate the Article(s) of this Contract under which they are given or made.