These General Conditions are based on ORGALIME publication SE 01 for the supply and erection of mechanical, electrical and electronic products.
Diamant Building, 80 Bld Reyers
B – 1030 Brussels
1 These General Conditions shall apply when theparties agree In Writing or otherwise thereto.When the General Conditions apply to a specific contract, modifications of or deviations fromthem must be agreed In Writing.
2 In these General Conditions the following termsshall have the meanings herein assigned tothem:
Contract shall mean the written agreement between the parties concerning performance of the Works and all appendices including agreedamendments and additions to the said documents.
Contract Price shall mean the payment to bemade for the Works. If erection is to be carriedout on a time basis and has not been completed,the Contract Price for the purposes of clauses 17, 40, 41 and 47 shall be the price for the Plant with the addition of 10 per cent or of any otherpercentage that may have been agreed by theparties.
Gross Negligence shall mean an act or omissionimplying either a failure to pay due regard to serious consequences, which a conscientious contracting party would normally foresee as likelyto ensue, or a deliberate disregard of the consequences of such act or omission.
In Writing shall mean communication by document signed by the parties, or by letter, fax, electronic mail and by such other means as areagreed by the parties. Plant shall mean all machinery, apparatus, materials and articles to be supplied by the contractor under the Contract.
Siteshall mean the place where the Plant is tobe erected, including as much of surroundingarea as is necessary for unloading, storage andinternal transport of the Plant and erectionequipment.
Works shall mean the Plant including erectionand other work to be provided by the contract or under the Contract. If the Works according to the Contract shall be taken over by separate sections intended to be used independently from each other these conditions shall apply to each section separately. The term Works shall then refer to the section in question.
3 All information and data contained in general product documentation and price lists, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included in the Contract.
DRAWINGS AND DESCRIPTIONS
4 All drawings and technical documents relatingto the Works submitted by one part to the otherprior or subsequent to the formation of the contract shall remain the property of the submittingparty.
Drawings, technical documents or other technical information received by one party shall not,without the consent of the other party, be usedfor any other purpose than that for which theywere provided. They may not, without the consent of the submitting party, otherwise be usedor copied, reproduced, transmitted or communicated to a third party.
5 The maker shall, not later than at the date of takingover, provide free of charge informationand drawings which are necessary to permit thebuyer to operate and maintain the Works. Suchinformation and drawings shall be supplied inthe number of copies agreed upon or at least onecopy of each. The maker shall not be obliged toprovide manufacturing drawings for the Plant orfor spare parts.
PRE DESPATCH INSPECTION
6 If pre despatch inspection is provided for in the Contract it shall, unless otherwise agreed, becarried out at the place of manufacture duringnormal working hours. If the Contract does not specify the technical requirements, pre despatch inspection shall becarried out in accordance with general practice in the appropriate branch of industry concerned in the country of manufacture.
7 The maker shall notify the buyer In Writing ofthis pre despatch inspection in sufficient time topermit the buyer to be represented. If the buyeris not represented the pre despatch inspectionreport shall be sent to the buyer and shall be accepted as accurate.
8 If the pre despatch inspection shows the Plant not to be in accordance with the Contract, themaker shall without delay remedy any deficiencies in order to ensure that the Plant complieswith the Contract. A new pre despatch inspection shall then be carried out at the buyer’s request, unless the deficiency was insignificant.
9 The maker shall bear all costs for the pre despatch inspection carried out at the place ofmanufacture. The buyer shall however bear alltravelling and living expenses for his representatives in connection with such pre despatch inspection.
PREPARATORY WORK AND WORKING CONDITIONS
10 The maker shall provide in good time drawingsshowing the manner in which the Plant is to beerected, together with all information requiredfor preparing suitable foundations, for providingaccess for the Plant and any others to the pointthe Plant is to be erected, and for making allnecessary connections to the Works.
11 The buyer shall provide in good time all installations, and ensure that the conditions necessaryfor the erection of the Plant and for the correctoperation of the Works are fulfilled. This shallnot apply to preparatory work which, accordingto the Contract, shall be performed by themaker.
12 The preparatory work shall be carried out by thebuyer in accordance with the drawings and information provided by the maker under clause 10. The work shall be completed in good time.In any case the buyer shall ensure that the foundations are structurally good. If the buyer is responsible for transporting the Plant to the Site ,he shall ensure that the Plant is on the Site ingood time.
13 If an error or omission in the drawings or information referred to in clause 10 is discovered bythe maker or notified to him In Writing beforeexpiry of the period referred to in clause 52, thecost of any necessary remedial work shall beborne by the maker.
14 The buyer shall ensure that
14.1 The maker’s personnel are able to start work in accordance with the agreed timeschedule and to work during normal working hours. Provided that the buyerhas been given notice In Writing in reasonable time, work may be performedoutside normal working hours to the extent deemed necessary by the maker.
14.2 He has, in good time before erection isstarted, informed the maker In Writing ofall relevant safety regulations in force at the Site . The erection shall not be carriedout in unhealthy or dangerous surroundings. All the necessary safety and precautionary measures shall have been takenbefore erection is started and shall bemaintained.
14.3 The maker’s personnel are able to obtainsuitable and convenient board and lodging in the neighbourhood of the Site and shall have access to internationally acceptable hygiene facilities and medicalservices.
14.4 He has made available to the maker freeof charge at the proper time on the Site all necessary cranes, lifting equipmentand equipment for transport on Site, auxiliary tools, machinery, materials andsupplies (including fuels, oils, grease andother materials, gas, water, electricity,steam, compressed air, heating, lightning, etc.), as well as measuring and testing instruments of the buyer available on site. The maker shall specify In Writing his requirements concerning such cranes,lifting equipment, measuring and testinginstruments and equipment for transport on Site at the latest one month beforestart of erection.
14.5 He has made available to the maker freeof charge necessary storage facilities,providing protection against theft and deterioration of the Plant, the tools andequipment required for erection, and thepersonal effects of the maker’s personnel.
14.6 The access routes to the Site shall besuitable for the required transport of the Plant and the maker’s equipment.
15 If the buyer anticipates that he will be unable tocarry out in time his obligations necessary forcompletion of the Works, including complyingwith the conditions specified in clauses 11, 12and 14, he shall forthwith notify the makerInWriting, stating the reason and the time when hewill be able to comply with his obligations.
16 Without prejudice to the maker’s rights underclause 17, if the buyer fails to fulfil, correctlyand in time, his obligations necessary for completion of the Works, including to comply withthe conditions in clauses 11, 12 and 14, the following shall apply:
16.1 The maker may at his own discretionchoose to himself carry out or employ athird party to carry out the buyer’s obligations, or otherwise take such measuresas under the circumstances are appropriate in order to avoid or alleviate the effects of the buyer’s default.
16.2 The maker may suspend in whole or inpart his performance of the Contract. He shall forthwith notify the buyer In Writing of the suspension.
16.3 If the Plant has not been delivered to the Site the maker shall arrange for storage ofthe Plant at the buyer’s risk. The makershall also, of the buyer so requires, insure the Plant.
16.4 If performance of the Contract is delayedby the buyer’s default, he shall nevertheless pay any part of the Contract Price which, but for such delay, had becomedue.
16.5 The buyer shall reimburse the maker forany reasonable cost not covered byclause 44 or 45, which are reasonable incurred by the maker as a result of measures under 16.1, 16.1 or 16.3 of this clause.
17 If completion of the Works is prevented by thebuyer’s default as referred to in clause 16, and this is not due to any such circumstances asmentioned in clause 67, the maker may also bynotice In Writing require the buyer to remedyhis default within a final reasonable period. If, for any reason for which the maker is not responsible, the buyer fails to remedy his defaultwithin such period, the maker may by notice In Writing terminate the contract.
The maker shall then be entitled to compensation for the loss he suffers because of thebuyer’s default. The compensation shall not exceed the Contract Price.
LOCAL LAWS AND REGULATIONS
18 The maker shall ensure that the Works are carried out and are in accordance with any laws,regulations and rules which are applicable to the Works. If required by the maker, the buyer shallprovide the relevant information on these laws,regulations and rules In Writing.
19 The maker shall carry out any variation work caused by changes in laws, regulations and rulesreferred to in clause 18, or in their generally accepted interpretation, occurring between thedated of submission of the tender and takingover. The buyer shall bear extra cost and otherconsequences resulting from such changes, inparticular for variation work.
20 If the parties are unable to agree on the extracost and other consequences of changes in laws,regulations and rules, referred to in clause 18,the maker shall be compensated on a time basisfor any variation work until the dispute has beensettled in accordance with clause 72.
21 Subject to the provisions of clause 25, the buyeris entitled to require variations to the scope, design and construction of the Works until the Works have been taken over. The maker maysuggest such variations In Writing.
22 Requests for variations shall be submitted to themaker In Writing and shall contain an exact description of the variation required.
23 As soon as possible after receipt of a request fora variation or after having himself made a proposal for a variation, the maker shall notify thebuyer In Writing whether and how the variationcan be carried out, stating the resulting alteration to the Contract Price, the time for completion and other terms of the Contract.
The maker shall also give such notice to thebuyer when variations are required as a result ofchanges in laws, regulations and rules referredto in clause 18.
24 If completion of the Works is delayed as a resultof disagreement between the parties on the consequences of variations, the buyer shall pay anypart of the Contract Price which would havebecome due if the Works had not been delayed.
25 Save as provided in clause 19, the maker shallnot be obliged to carry out variations requiredby the buyer until either the parties have agreedon how the variations will affect the Contract Price, the time for completion and other termsof the Contract, or the dispute has been settledin accordance with clause 72.
PASSING OF RISK
26 The risk of loss of or damage to the Plant shallpass to the buyer in accordance with any agreedtrade term, which shall be construed in accordance with the INCOTERMS in force at thedate of formation of the Contract.
If no trade term is specifically agreed, deliveryof the Plant shall be "ex works" (EXW).
Any risk of loss or damage to the Works notcovered by the first paragraph of this clauseshall pass to the buyer on takingover of the Works.
Any loss or damage to the Plant and Work safter the risk has passed to the buyer shall be at therisk of the buyer, unless such loss or damage results from the maker’s negligence.
ACCEPTANCE / TAKING-OVER TESTS
27 When erection has been completed taking-over tests shall, unless otherwise agreed, be carriedout to determine whether the Works are as required for taking-over according to the Contract.
The maker shall notify the buyer In Writing thatthe Works are ready for taking-over. He shall inthis notice give a date for taking-over tests, giving the buyer sufficient time to prepare for andbe represented at these tests.
The buyer shall bear all cost of taking-over tests. The maker shall, however, bear all cost relating to his personnel and his other representatives.
28 The buyer shall provide free of charge anypower, lubricants, water, fuel, test parts andother materials required for the taking-over testsand for final adjustments in preparing for thesetests. He shall also install free of charge anyequipment and provide any labour or other assistance necessary for carrying out the taking-over tests.
29 If, after having been notified in accordance withclause 27, the buyer fails to fulfil his obligationsunder clause 28 or otherwise prevents the taking-over tests from being carried out, the testsshall be regarded as having been satisfactorilycompleted at the date for taking-over tests statedin the maker’s notice.
30 The taking-over tests shall be carried out duringnormal working hours. If the Contract does notspecify the technical requirements, the testsshall be carried out in accordance with generalpractice in the appropriate branch of industryconcerned in the buyer’s country.
31 The maker shall prepare a test-report of the taking-over tests. This report shall be sent to thebuyer. If the buyer has not been represented atthe taking-over tests after having been notifiedin accordance with clause 27, the test reportshall be accepted as accurate.
32 If the taking-over tests show the Works not to bein accordance with the Contract, the maker shallwithout delay remedy the deficiencies. If thebuyer so requires In Writing without undue delay, new tests shall be carried out in accordancewith clauses 27-31. This shall not apply whenthe deficiencies were insignificant.
ACCEPTANCE / TAKING-OVER
33 Taking-over of the Works takes place:
33.1 When the taking-over tests have beensatisfactorily completed or are regardedunder clause 29 as having been satisfactorily completed, or
33.2 Where the parties have agreed not tocarry out taking-over tests, when thebuyer has received a maker’s noticeInWritingthat the Works have been completed, provided that the Works are asrequired for taking-over according to the Contract.
Minor deficiencies which do not affect theefficiency of the Works shall not prevent taking-over.
34 The buyer is not entitled to use the Works or anypart thereof before taking-over. If the buyerdoes so without the maker’s consent In Writing,he shall be deemed to have taken over the Works. The maker shall then be relieved of hisduty to carry out taking-over tests.
35 As soon as the Works have been taken over inaccordance with clause 33 or 34, the period, referred to in clause 52, shall start to run. Thebuyer shall, at the maker’s request In Writing,issue a certificate stipulating when the Works have been taken over. The buyer’s failure to issue a certificate shall not affect taking-over according to clauses 33 and 34.
36 the Works shall be considered as completedwhen they are taken over in accordance withclause 33 or 34.
37 If the parties instead of specifying the date forcompletion, have specified a period of time onthe expiry of which taking-over shall take place,such period shall start to run as soon as the Contract is entered into, all official formalities havebeen completed, payments due at the formationof the Contract have been made, any agreed securities have been given, and any other preconditions have been fulfilled.
38 If the maker anticipates that he will not be ableto comply with his obligations within the timesspecified in the Contract, he shall forthwith notify the buyer thereof In Writing stating the reason, and, if possible, when compliance can beexpected. If the maker fails to give such notice,the buyer shall be entitled to compensation forany additional cost which he incurs and whichhe could have avoided had he received such notice.
39 The maker shall be entitled to an extension ofthe time for completion if delay occurs:
39.1 because of any of the circumstances referred to in clause 67, or
39.2 as a result of variation work under clause 19, or
39.3 as a result of variations under clauses 21-25, or
39.4 as a result of suspension under clauses 16, 47 or 70, or
39.5 by an act or omission on the part of thebuyer.
The extension shall be reasonable having regardto all the circumstances. This provision appliesof whether the reason for the delay occurs before or after the agreed time for completion.
40 The maker is in delay when the Works are notcompleted a the time for completion as definedin clauses 36, 37 and 39. The maker’s delay entitles the buyer to liquidated damages from thedate on which the Works should have beencompleted.
The liquidated damages shall be payable at arate of 0.5 per cent of the Contract Price for each completed week of delay. The liquidateddamages shall not exceed 5 per cent of the Contract Price.
If only part of the Works is delayed, the liquidated damages shall be calculated on that partof the Contract Price, which is attributable tosuch part of the Works as cannot in consequence of the delay be used as intended by theparties.
The liquidated damages become due at thebuyer’s request In Writing but not before taking-over or termination of the Contract underclause 41.
The buyer shall forfeit his right to liquidateddamages if he has not lodged a claim In Writing for such damages within six months after thetime when taking-over completion should havetaken place.
41 If the maker’s delay is such that the buyer hasbecome entitled to the maximum liquidateddamages under clause 40 and the Works are stillnot completed, the buyer may demand In Writing completion within a final reasonable periodwhich shall not be less than one week.
If the maker does not complete the Works within such final period and this is not due toany circumstances for which the buyer is responsible, then the buyer may by notice In Writing to the maker terminate the Contract in respect of such part of the Works which, due tothe maker’s failure, cannot be used as intendedby the parties.
If the buyer terminated the Contract he shall beentitled to compensation for the loss he has suffered as a result of the maker’s delay. The totalcompensation, including the liquidated damageswhich are payable under clause 40, shall not exceed 10 per cent of that part of the Contract Price which is attributable to the part of the Works in respect of which the Contract is terminated.
The buyer shall also have the right to terminatethe Contract by notice In Writing to the maker,if it is clear from the circumstances that therewill occur a delay in completion of the Works which, under clause 40 would entitle the buyerto maximum liquidated damages.
In case of termination on this ground, the buyershall be entitled to maximum liquidated damages and compensation under the third paragraph of this clause 41.
42 Liquidated damages under clause 40 and termination of the Contract with liquidated damagesunder clause 41 are the only remedies availableto the buyer in case of delay on the part of themaker. All other claims against the maker basedon such delay shall be excluded, except wherethe maker has been guilty of Gross Negligence.
43 Unless otherwise agreed, payment shall be madewithin 30 days from the date of the invoice asfollows:
43.1 when erection is carried out on a timebasis:
- one third of the agreed price for the Plant at the formation of the Contract,
- one third when the maker notifies thebuyer that the Plant, or the essentialpart of it, is ready for despatch fromthe place of manufacture, and
- the final third on arrival of the Plant at the site.
Payment for erection shall be madeagainst monthly invoices.
43.2 when erection is included in the lumpsumContract Price:
- 30 per cent of the Contract Price at the formation of the Contract,
- 30 per cent when the maker notifiesthe buyer that the Plant, or the essential part of it, is ready for despatchfrom the place of manufacture,
- 30 per cent on arrival of the Plant atthe site,
- the remaining part of the Contract Price on taking-over.
44 When erection is carried out on a time basis thefollowing items shall be separately charged:
44.1 all travelling expenses incurred by themaker in respect of his personnel and thetransport of their equipment and personaleffects (within reasonable limits) in accordance with the specified method andclass of travel where these are specifiedin the Contract.
44.2 cost of board and lodging and other living expenses, including any appropriateallowances, of the maker’s personnel foreach day’s absence from their homes, including non-working days and holidays.
44.3 the time worked, which shall be calculated by reference to the number of hourscertified as worked in the time-sheets signed by the buyer. Overtime and work on Saturdays, Sundays, holidays and atnight will be charged at special rates.The rated shall be as agreed in the Contract, or, failing agreement, as normallycharged by the maker. Save as otherwiseprovided, the hourly rates cover the wearand tear of the maker’s tools and lightequipment.
44.4 time necessarily spent on:
- preparation and formalities incidentalto the outward and homeward journeys,
- the outward and homeward journeysand other journeys to which the personnel are entitled in accordance withcurrent law, regulations or collectiveagreements in the maker’s country,
- daily travel between lodgings and the Site , if it exceeds half an hour eachway and there are no suitable lodgings closer to the site, waiting when work is prevented bycircumstances for which the maker isnot responsible under the Contract, all at the same rates as referred to in 44.3.
44.5 any expenses incurred by the maker inaccordance with the Contract, in connection with the provision of equipment byhim, including where appropriate acharge for the use of the maker’s ownheavy equipment.
44.6 any taxes or dues levied on the invoiceand payable by the maker in the countrywhere erection takes place.
45 When erection is to be carried out for a lumpsum, the quoted price shall be deemed to include all the items mentioned in clause 44.1 to
44.5. If the erection is delayed due to a cause forwhich the responsibility rests with the buyer orany of his contractors other than the maker, thebuyer shall compensate the maker for:
45.1 waiting time and time spent on extrajourneys.
45.2 cost and extra work resulting from thedelay, including removing, securing andsetting up erection equipment.
45.3 additional cost, including cost as a resultof the maker having to keep his equipment at the site for a longer time thanexpected.
45.4 additional cost for journeys and boardand lodging for the maker’s personnel.
45.5 additional financing cost and cost of insurance.
45.6 other documented cost incurred by themaker as a result of changes in the erection programme.
46 Whatever the means of payment used, paymentshall not be deemed to have been effected before the maker’s account has been fully and irrevocable credited.
47 If the buyer fails to pay by a stipulated date, themaker shall be entitled to interest from the dayon which payment was due. The rate of interestshall be as agreed between the parties. If theparties have not agreed on the rate of interest, itshall be 8 percentage points above the rate ofthe main refinancing facility of the EuropeanCentral Bank in force on the due date of payment.
In case of late payment the maker may, afterhaving notified the buyer In Writing, suspendhis performances of the Contract until he receives payment.
If the buyer has not paid the amount due withinthree months, the maker shall be entitled to terminate the Contract by notice In Writing to thebuyer and to claim compensation for the loss hehas incurred. The compensation shall not exceed the Contract Price.
RETENTION OF TITLE
48 the Plant shall remain the property of themaker until paid for in full, including paymentfor the erection of the Plant, to the extent thatsuch retention of title is valid under the applicable law.
The buyer shall at the request of the maker assist him in taking any measures necessary toprotect the maker’s title to the Plant in thecountry concerned.
The retention of title shall not affect the passingof risk under clause 26.
LIABILITY FOR DAMAGE TO PROPERTY BEFORE TAKING-OVER
49 The maker shall be liable for any damage to the Works which occurs before the risk has passedto the buyer. This applies irrespective of thecause of the damage, unless the damage hasbeen caused by the buyer or anyone for whomhe is responsible in connection with performance of the Contract. Even if the buyer is not liable for the damage of the Works in accordancewith this clause, the buyer may require themaker to remedy the damage at buyer’s cost.
50 The maker shall be liable for damage to thebuyer’s property occurring before taking-over of the WORKS only if it is proved that suchdamage was caused by negligence on the partof the maker or anyone for whom he is responsible in connection with the performance of the Contract. The maker shall however underno circumstances be liable for loss of production, loss of profit or any other consequentialeconomic loss.
LIABILITY FOR DEFECTS
51 Pursuant to the provisions of clauses 52-65 inclusive, the maker shall remedy any defect or non-conformity [hereinafter termed defect(s)] in the Works resulting from faulty design, materials or workmanship.
52 The maker’s liability is limited to defects in the Works which appear within a period of 12months from taking-over. If the daily use of the Works exceeds that which is agreed, this periodshall be reduced proportionately. If taking-over has been delayed for reasons for which thebuyer is responsible, the maker’s liability fordefects shall not, except as stated in clause 53,be extended beyond 18 months after delivery ofthe Plant.
53 When a defect in a part of the Works has beenremedied, the maker shall be liable for defectsin the repaired or replaced part under the sameterms and conditions as those applicable to theoriginal Works for a period of 12 months. Forthe remaining parts of the Works the periodmentioned in clause 52 shall be extended onlyby a period equal to the period during which the Works have been out of operation as a result ofthe defect.
54 The buyer shall without undue delay notify themaker In Writing of any defect which appears.Such notice shall under no circumstances begiven later than two weeks after the expiry ofthe period given in clause 52.
The notice shall contain a description of the defect.
If the buyer fails to notify the maker In Writing of a defect within the timelimits set forth in thisclause, he loses his right to have the defectremedied.
Where the defect is such that it may cause damage, the buyer shall immediately inform themaker In Writing. The buyer shall bear the riskof damage resulting from his failure so to notify.
55 On receipt of the notice under clause 54, themaker shall remedy the defect without unduedelay and at his own cost as stipulated inclauses 51-65. Repair shall be carried out at the Site , unless the maker deems it appropriate thatthe defective part or the Plant is returned to himfor repair or replacement.
Where remedial work is carried out at the site,clauses 14 and 50 shall apply correspondingly.
The maker is obliged to dismantle the Works tothe extent necessary and to reassemble the Works if this requires special knowledge. Ifsuch special knowledge is not required, themaker has fulfilled his obligations in respect ofthe defect when he delivers to the buyer a dulyrepaired or replaced part.
56 If the buyer has given such notice as mentionedin clause 54, and no defect is found for whichthe maker is liable, the maker shall be entitled tocompensation for the cost he has incurred as aresult of the notice.
57 The buyer shall at his own expense arrange forany dismantling and reassembly of equipmentother than the Works, to the extent that is necessary to remedy the defect.
58 Unless otherwise agreed, necessary transport ofthe Plant and/or parts thereof to and from themaker in connection with the remedying of defects for which the maker is liable shall be at therisk and expense of the maker. The buyer shallfollow the maker’s instructions regarding suchtransport.
If the Works are not at the site, the buyer shallbear any resulting additional cost incurred bythe maker when remedying defects.
59 Defective parts which have been replaced shallbe made available to the maker and shall be hisproperty.
60 If, within a reasonable time, the maker does nitfulfil his obligations under clause 55, the buyermay, by notice In Writing, fix a final time forcompletion of the maker’s obligations.
If the maker fails to fulfil his obligations withinsuch final time, the buyer may himself undertake or employ a third party to undertake necessary remedial works at the risk and expense ofthe maker.
Where successful remedial works have beenundertaken by the buyer or a third party, reimbursement by the maker of reasonable cost incurred by the buyer shall be in full settlement ofthe maker’s liabilities for the said defect.
61 Where the defect has not been successfullyremedied as stipulated under clause 60,
61.1 the buyer is entitled to a reduction of the Contract Price in proportion to the reduced value of the Works, provided thatunder no circumstances shall such reduction exceed 10 per cent of the Contract Price, or
61.2 where the defect is so substantial as tosignificantly deprive the buyer of thebenefit of the Contract, the buyer mayterminate the Contract by notice In Writing to the maker. The buyer is then entitled to compensation for the loss he hassuffered up to a maximum of 10 per centof the Contract Price.
62 The maker is not liable for defects arising out ofmaterials provided, or a design stipulated orspecified by the buyer.
63 The maker is liable only for defects which appear under the condition of operation providedfor in the Contract and under proper use of the Works.
The maker’s liability does not cover defectswhich are caused by faulty maintenance orfaulty repair by the buyer, or by alterations carried out without the maker’s consent In Writing.
Finally, the maker’s liability does not covernormal wear and tear or deterioration.
64 Notwithstanding the provisions of clauses 51-65 the maker shall not be liable for defects in anypart of the Works for more than 24 months from taking-over. If taking-over has been delayed forreasons for which the buyer is responsible, themaker’s liability for defects shall not be extended beyond 30 months after delivery of the Plant.
65 Save as stipulated in clauses 51-64, the makershall not be liable for defects. This applies toany loss the defect may cause including loss ofproduction, loss of profit and other indirect loss.
The limitation of the maker’s liability shall not apply ifhe has been guilty of Gross Negligence.
ALLOCATION OF LIABILITY FOR DAMAGE CAUSED BY THE WORKS
66 The maker shall not be liable for any damage toproperty caused by the Works after completionand whilst in the possession of the buyer. Norshall the maker be liable for any damage toproducts manufactured by the buyer, or to products of which the buyer’s products form a part.
If the maker incurs liability towards any thirdparty for such damage to property as describedin the preceding paragraph, the buyer shall indemnify, defend and hold the maker harmless.
If a claim for damage as described in this clauseis lodged by a third party against one of the parties, the latter party shall forthwith inform theother party thereof In Writing.
The maker and the buyer shall be mutuallyobliged to let themselves be summoned to thecourt or arbitral tribunal examining claims fordamages lodged against one of them on the basis of damage allegedly caused by the Works.
The limitation of the maker’s liability in thefirst paragraph of this clause shall not applywhere the maker has been guilty of Gross Negligence.
67 Either party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impededor made unreasonably onerous by any of the following circumstances: industrial disputes andany other circumstance beyond the control ofthe parties such as fire, war, extensive militarymobilisation, insurrection, requisition, seizure,embargo, restrictions in the use of power anddefects or delays in deliveries by subcontractors caused by any such circumstances asreferred to in this clause.
A circumstance referred to in this clause,whether occurring prior to or after the formation of the Contract, shall give a right to suspension only if its effect on the performance ofthe Contract could not be foreseen at the timeof the formation of the Contract.
68 The party claiming to be affected by Force Majeure shall notify the other party In Writing without delay on the intervention and on thecessation of such circumstance.
If Force Majeure prevents the buyer from fulfilling his obligations, he shall compensate themaker for expenses incurred in securing andprotecting the Works.
69 Regardless of what might otherwise follow fromthese General Conditions, either party shall beentitled to terminate the Contract by noticeInWritingto the other party if performance of the Contract is suspended under clause 67 for morethan six months.
70 Not with standing other provisions in these General Conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the Contract, where it is clear from the circumstances that theother party will not be able to perform his obligations. A party suspending his performance of the Contract shall forth with notify the other party thereof In Writing.
71 Save as otherwise stated in these General Conditions there shall be no liability for either partytowards the other party for loss of production, loss of profit, loss of use, loss of contracts or for any other consequential, or indirect loss whatsoever.
DISPUTES ANDAPPLICABLE LAW
72 All disputes arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules.
73 the Contract shall be governed by the substantive law of the maker’s country.