00500 COMMERCIAL TERM SHEET 1
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Payment Terms
Warranty
Purchaser will pay Supplier forty-five calendar days after Purchaser's receipt of Supplier's invoice. 90% upon delivery of all Work / 10% at issuance of the Commissioning Certificate and submittal of a 10% LOC valid through the end of the Warranty Period. The required Warranty Period shall be twenty-four (24) months from issuance of the Commissioning Certificate. The Warranty Period for repaired Work or replacements replacements will be extended for a period of two year after the repair or replacement is complete or until the end of the original Warranty Period, whichever is later. Supplier will be responsible for any damage to or rework required to the Work or to other work caused by breach of the warranty or required by correction of the breach. The cost of warranty work and removal or replacement of other work will be at Supplier's expense. In the case of emergency where, in the reasonable judgment of Purchaser, delay could result in serious loss or damage to persons or property or if Purchaser at its sole discretion determines that the Project schedule or Client’s operations will be adversely affected, Purchaser may correct the defect or nonconformity at Supplier's expense, provided Purchaser has notified Supplier of the defect or nonconformity and afforded Supplier an opportunity to correct the defect or nonconformity within the time determined by Purchaser to be required by the circumstances.
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Liquidated Damages
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Consequential Damages
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Indemnity
100411 Template
The Work must meet guaranteed performance requirements during the performance tests. The guaranteed performance requirements are must fix/make good. If the Work does not meet the guaranteed performance requirements during the performance tests specified, Supplier shall correct the failure at Supplier’s expense as necessary to meet the guaranteed performance requirements. Late Document Submittal - $250/calendar day/late submittal. Late Delivery of each item of equipment – One- of one percent (1%) of the contract price/calendar week (or prorate in respect of part of the week) up to maximum of 10% of the contract price. Performance – Later if applicable to the equipment. Delayed Commissioning Certificate due to Supplier's failure to fulfill its obligations under this Purchase Order - One percent (1%) of the contract price/calendar day beginning the day after the issuance of the Commissioning Certificate and continuing until Supplier has remedied such failure. Time will be the essence of the contract. Except for Supplier's obligations arising out of or liability for breach of Articles covering Warranty, Non-Disclosure, Compliance with Laws or Indemnity or as set forth in any provision for liquidated damages in any resulting Purchase Order, Purchaser and Supplier will not be liable to each other for loss of profits, loss of use, loss of contracts, or consequential damages arising out of any resulting Purchase Order. Supplier agrees to defend, indemnify, and hold harmless the Purchaser and Client and its group companies against any Claims arising out of: (a) the negligence or wilful misconduct of Supplier, Sub-suppliers, or their respective officers, employees and agents; (b) infringement of any intellectual property right or unauthorized disclosure or use of trade secrets by Supplier, Sub-suppliers, or their respective officers, employees and agents; (c) violation of Applicable Laws by Supplier, Sub-suppliers, or their respective officers, employees and agents; (d) The filing of a lien, or other encumbrance, on all or part of the Project by Supplier, Sub-suppliers, or their respective officers, employees and agents. (e) Supplier's failure to provide insurance as required by any resulting Purchase Order.
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00500 COMMERCIAL TERM SHEET 6
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Security Instruments
Insurance
A 10% Letter of Credit valid from issuance of the Commissioning Certificate through the end of the Warranty Period (see Payment Terms above). For contracts valued at $100,000 or greater, a 100% Performance and Payment Bond valid from award through issuance of the Commissioning Certificate. Commercial General Liability: $1,000,000 for each occurrence and in the aggregate Endorsements: waiver of subrogation to Indemnified Parties, cross-liability or severability of interest clause, a per project aggregate endorsement, and coverage for personal injury liability, contractual liability, products and completed operations (covering lawsuits brought in the USA and the country of the Jobsite), explosion, building collapse, and damage to underground property Umbrella Insurance: $4,000,000 for each occurrence and in the aggregate Endorsements: waiver of subrogation to Indemnified Parties, cross-liability or severability of interest clause, a per project aggregate endorsement, and coverage for personal injury liability, contractual liability, products and completed operations (covering lawsuits brought in the USA and the country of the Jobsite), explosion, building collapse, and damage to underground property. (if onsite presence is expected) Workers Compensation: $1,000,000 Endorsements: waiver of subrogation to Indemnified Parties, for US work "all states" or "other states" endorsement and employer's liability insurance protecting Supplier against claims for injury, disease or death of employees which are not covered by the worker's compensation insurance. (if onsite presence is expected) Automobile: $1,000,000 for each occurrence and in the aggregate Endorsements: waiver of subrogation to Indemnified Parties (if Goods are shipped over seas or the project BAR does not cover inland transport) Transportation; 110% of the commercial invoice value of the Work shipped. Endorsements: “All risk” type, until receipt at the Jobsite, must provide for insured
losses to be payable to Supplier and Purchaser. (if design of any kind is included in subcontractors’/service providers scope)
Professional Liability (if applicable): $1,000,000 for each occurrence and in the aggregate.
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Taxes
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Governing Law
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Delivery, Title, and Risk of Loss
Supplier shall give Purchaser ACORD insurance certificates evidencing the required coverage. Pricing shall be with base price and additional all applicable taxes and duties shall be quoted extra. Claims and disputes arising out of or related to this Purchase Order will be governed by the law of India. Supplier agrees to be bound by and the dispute resolution process set forth in the Prime Agreement between the Client and Purchaser. For shipments originating outside of India – CIF Port of Import (Incoterms 2010), with title transferring at FOB Port of Export and risk of loss transferring at jobsite. (Local transport in India to be excluded by supplier.) For shipments originating inside India – Ex- Works and transport cost up to site shall be quoted separately (Incoterms 2010)
100411 Template
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00500 COMMERCIAL TERM SHEET 11
Force Majeure
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Suspension
Supplier may be provided an equitable schedule adjustment for the effects of a Force Majeure event to the extent such relief is provided by the Client to Purchaser. However, no equitable cost relief will be provided. Purchaser may suspend Supplier’s performance . If the suspension is for reasons of Force Majeure, Supplier’s default, or for the purpose of ensuring the safety, proper
execution, or quality of the Project or as a result of suspension by the Client, then Supplier is not entitled to any equitable cost adjustment. 13
CONFIDENTIA LITY AND PUBLICITY
All information concerning the Purchaser's activities obtained by the Supplier in the course or conduct of supply hereunder and all information or data otherwise furnished to the Supplier by the Purchaser shall be considered confidential and shall not be disclosed by the Supplier to any third party without the prior written consent of the Purchaser or used by the Supplier for any purpose other than the purpose of the Purchase Order and supplies made thereunder. The Supplier shall not publish or permit to be published any pictorial, written, oral or other information relating to the Purchase Order, the performance thereof or the activities of the Purchaser without the Purchaser's prior written consent. Such consent shall be given (if at all) separately in relation to each specific application thereof and shall apply only to that application. The accuracy of any information released by the Supplier and not supplied directly by the Purchaser is the absolute responsibility of the Supplier.
Permits and Authorizations
The Supplier shall, at its own cost, be responsible for obtaining all certificates, licenses, permits, clearances, approvals and authorizations required for the performance of the Purchase Order (including, without limitation, all clearances and authorizations required for any marine vessel or aircraft provided by the Supplier Group) and in respect of the Supplier’s Equipment and the Supplier’s Personnel and for all approvals and
permits required for the Supplier to engage in business and provide services of the nature contemplated by this Contract, in India. The Supplier shall at all times ensure compliance with all such certificates, licenses, permits, approvals and authorizations as may be applicable for the performance of the Purchase Order.
Meaning and Interpretation
100411 Template
In performing the Purchase Order , the Supplier shall observe and comply with all applicable laws including, without limitation, health and safety, labor, immigration and marine laws, whether of Government/statutory or other authority or agency having jurisdiction in relation to the Purchase Order or the Site. Unless context otherwise requires or otherwise defined, or provided herein, words expressions including the capitalized items used and not defined herein shall have same meaning and intent as defined under the Prime Agreement between Client and Purchaser.
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