PART II SPECIAL CONDITIONSTC "PART II SPECIAL

CONDITIONS"\L1

Conditions Precedent to
Commencement

Defects Liability Period

Works

Sub-Clause 1.1.1.
The following financial and administrative requirements are conditions precedent to
commencement:
i. Contract Agreement signed by the Parties;
ii. Relevant permits and authorizations necessary for the execution of the Project have been
obtained;
iii. Unrestricted access to site has been granted to CONTRACOTR by EMPLOYER;

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 iv. The 1st Payment for mobilization has been released by the bank and received by the
CONTRACOTR;
v. The Letter of Credit has been opened and is operational.
vi. After the issuing Bank’s Draft acceptance upon receipt of the proforma invoice and issuing
bank’s draft for 1st payment release.
Should the Contract not enter into force within the earlier of the validity period of the
CONTRACOTR’s Offer or within FOUR (4) months as from the signing date of the Contract, then
either Party shall be entitled to terminate the Contract by giving written notice to such effect to the
other Party, without being subject to any penalties, fees, indemnification claims, whether provided
under this Contract or elsewhere.

Sub-Clause 1.1.11.
The Defects Liability Period refers to a fixed period, after 8000 running hours or after 24 months
from the issuance date of bill of lading of the last shipment, whichever earlier.

“Works” means to supply or manufacture the 137.5 MW Biomass Power Plant

to Metals and Engineering Corporation within the scope as stipulated in
Annex E [Work Scope & Exclusion] of the present contract.

Performance Test

Sub-Clause 1.1.38
“Performance Test” means the tests detailed in the Specifications or in a performance tests
Schedule otherwise agreed between the EMPLOYER and the CONTRACOTR to be made before the
Works have been taken over to demonstrate the performance of the Works.

Works
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Written Communications Sub-Clause 1.4

Written communications shall also include other form of electronic communications.

Assignment Sub-Clause 3.1

Sub-Clause 3.1 is completed as follows:

Notwithstanding the foregoing, the CONTRACOTR may, at any time by written notice to the
EMPLOYER, assign in whole or in part of the Contract to any of its affiliate.

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 Furthermore, the parties agree that the CONTRACOTR’s scope of work under the Contract may be
split into onshore and offshore scopes undertaken by its affiliates.
Affiliate shall mean a company which either (a) directly or indirectly controls the relevant Party, or
(b) is directly or indirectly controlled by the relevant Party, or (c) is directly or indirectly controlled
by any company to which (a) above applies (excluding the relevant Party), in all cases whether
through a majority interest in the share capital or voting rights.

Priority of Contract Sub-Clause 5.3

Documents

Sub-Clause 5.3 is deleted and replaced as follows:

The priority of the Contract Documents shall be as follows:
1. The Preamble
2. The Conditions of Contract, Part II (Special Conditions)
3. Annexes of section one and section two
4. Contract Agreement
5. CONTRACOTR’s Technical Documentation;

CONTRACOTR’s Drawings

Sub-Clause 6.1
Refers to Annex D [Project Implementation Schedule]
Sub-Clause 6.6.
Operation and Maintenance
Manuals

Operation and Maintenance Manuals shall be in the English language.

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General Obligations Sub-Clause 8.1.

Sub-Clause 8.1 is deleted and replaced as follows:

The CONTRACOTR shall, in accordance with the Contract, with due care and diligence, design,
manufacture, and deliver to FOB China Shanghai Sea Port (in accordance with Incoterms 2000) the
Plant within the Time for Completion. The CONTRACOTR shall provide expert supervision (and not
hierarchical management of the erection labor) of the erection works performed by the EMPLOYER,
and shall test and commission the Plant.

Setting Out

Sub-Clause 8.2.
The two first paragraphs of Sub-Clause 8.2 are deleted and replaced as follows:
The CONTRACOTR shall supervise the setting out of the Works in relation to original points, lines
and levels of reference given by the Engineer in writing.
If, at any time during the execution of the Works, any error appears in the positions, levels,
dimensions or alignment of the Works, the CONTRACOTR shall give instructions to rectify the error.

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 Performance Guarantee Sub-Clause 10.1.

Performance Guarantee equals to 5% of the contract price (USD ？？？ SAY: USD ...... ONLY) shall be opened
before the last shipment to guarantee 8000 running hours of plant and become invalid and null till 24 months
from the issuance date of Bill of Lading of the last shipment.
Site Data

Sub-Clause 11.1.
Sub-Clause 11.1 is completed as follows:
The CONTRACOTR should give recommendations on site conditions such as
soil, sub-soil, hydrological and geological risks. If the CONTRACOTR fails to
notify apparent deficits and a damage is sustained as a result of that act
should be responsible and pay damages. Vise visa, if the official notice is
given by the CONTRACTOR, the EMPLOYER should execute accordingly and
cooperatively, and undertake relevant responsibilities.

Sub-Clause 12.1.
Sub-Clause 12.1 a) is modified as follows:

Programme to be furnished

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 (a) the order in which the CONTRACOTR proposes to carry out the Works (including design,
manufacture, delivery FOB China Shanghai Sea Port and supervision of erection, testing and
commissioning),
The first paragraph of Sub-Clause 12.1 c) is completed as follows:

Safety Precautions

(v) to have performed necessary erection works;

(vi) to have impounded the reservoir and connected the power plant
to the grid to enable testing and commissioning works.
Sub-Clause 14.2.
The second paragraph of Sub-Clause 14.2 beginning “Unless otherwise agreed, …” is deleted and
replaced by the following:

“The Contract, notably the works on site, shall be performed by the CONTRACOTR, the EMPLOYER
and the Engineer in a safely manner, and in accordance with the CONTRACOTR’s Environmental,
Health and Safety (EHS) Management Plan. If the CONTRACOTR is prevented from performing the
Works in accordance with such Plan, the CONTRACOTR may suspend the performance of the
Contract and request extension of time in accordance with Sub-Clause 26 and shall be paid
additional cost in accordance with Sub-Clause 24.1.”
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 Clearance of Site

Sub-Clause 14.5.
The EMPLOYER shall be responsible for all erection Works, including clearing of the Site and removal
of all surplus materials and rubbish.

Compliance with Statutes, Sub-Clause 15.1.

Regulations

The term “fees” is deleted and replaced by “applicable taxes and duties”.
Claims in respect of Patent Sub-Clause 16.2.
Rights

The third paragraph of Sub-Clause 16.2 beginning “The CONTRACOTR may not, …” is deleted.

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 Ownership and
Confidentiality of Technical
Information

Sub-Clause 16.4 (new)

All designs, drawings and other technical information relating to the Works, including the software
provided by the CONTRACOTR under the Contract, and the intellectual property rights therein made
or acquired by the CONTRACOTR prior to or during the preparation of the proposal or tender or in
the course of work on the contract shall be and remain the property of the CONTRACOTR. Such
technical information shall be kept confidential by the EMPLOYER, its employees, agents or
subcontractor’s and shall not be copied, modified or disclosed by any of them and shall not be used
by them otherwise than for the purposes of the operation and maintenance of the Works. In the
event that the EMPLOYER does not accept the CONTRACTOR'S Offer it shall return to the
CONTRACOTR all technical information supplied by the CONTRACOTR together with any copies
made. From the Commencement Date, the CONTRACOTR grants to the EMPLOYER the non-
exclusive and non-transferable right to use the technical information, including software, provided
by the CONTRACOTR for the Works supplied under the Contract for the sole purposes of their
operation and maintenance.

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 工程涉及的所有设计、图纸以及其他技术信息包括承包方合同中提供的软件，提交方案或标
书时或之前，或制定合同过程中的知识产权都属于承包方。以上技术资料，业主、其雇员、
代理或分包商应保密，不得复印、修改或泄露而随意使用，用于工程运行和维护除外。如果
业主不接受承包方报价，应归还其提交的所有技术资料及其复印件。自生效之日起， 承包商
应被认为已经给予业主一项不排他的、可转让的使用承包商文件的许可，包括本条款规定的
由承包方提供仅用于工程操作和维修的软件。
Access to and Sub-Clause 17.1.
Possession of the Site

The second paragraph of Sub-Clause 17.1 is deleted and replaced by:

The CONTRACTOR shall assure delivery of all Plant to FOB China Shanghai Sea Port [in
accordance with Incoterms 2000].
Uncovering Work Sub-Clause 19.3.

The first paragraph of Sub-Clause 19.3 is deleted and replaced by:

If so instructed by the Engineer, the CONTRACOTR shall give directions to expose any parts of the
Works. The CONTRACOTR shall supervise the reinstatement and making good of such parts to the
Engineer's satisfaction.
At the beginning of the second paragraph of Sub-Clause 19.3, the terms “by
the CONTRACOTR” are deleted.

Dates for Inspection and Testing

Sub-Clause 20.3.
In the 2nd para., delete “, unless the Engineer instructs the CONTRACOTR not
to do so”.

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Certificate of Testing Sub-Clause 20.5.

Sub-Clause 20.5 is completed as follows:

If such certificate or endorsement has not been issued within 8 days from the completion of the
tests, it shall be deemed to have been issued at the expiry of said period.
Permission to Sub-Clause 22.1.
Deliver

In the 1st para., the terms “to the Site” are deleted.
In the 2nd para., the terms “The CONTRACOTR” are deleted and replaced by “The EMPLOYER”.
Order to Suspend Sub-Clause 23.1.

In the 1st para., point (b), the terms “to the Site” are deleted.
In the 1st para., point (c) is deleted and replaced as follows: (c)suspend the supervision of erection of
Plant which has been delivered.

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The beginning of the 2nd para. is modified as follows:
When the CONTRACOTR is prevented from delivering or supervising the erection of Plant …
The last para. is deleted and replaced as follows:
In case suspension occurs before the Risk Transfer Date, the CONTRACOTR shall during suspension
protect and secure the Works or Plant affected at the CONTRACTOR'S works against any
deterioration, loss or damage. The EMPLOYER shall secure the Works or Plant on Site against any
deterioration, loss or damage.
Resumption of Work Sub-Clause 24.4.

In the last para., the terms “which are still in the CONTRACTOR'S country” are added after the terms
”for the suspended Works”.

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Consequences of Failure to Pass Sub-Clause 28.7.
Tests on Completion

Sub-Clause 28.7. is deleted and replaced as follows:

Failure to meet the Time for Completion entitles the EMPLOYER and CONTRACTOR to reduction in
Contract Price as follows:
If the CONTRACTOR fails to deliver the Products to the EMPLOYER in the agreed delivery schedule,
the EMPLOYER is entitled to charge penalty from the CONTRACTOR starting from the second day
after the shipment date committed, and the penalty will be calculated at: 0.06% of the amount of

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undelivered products × late delivery days. Such penalty is capped at 5% of the Total Contract Value.
If the CONTRACTOR fails to deliver the products after more than 180 days, the EMPLOYER is entitled
to terminate the whole or part of this Contract.
The total amount of all kinds of penalties in aggregate paid by CONTRACTOR under this Contract
should not be more than 5% of the Total Contract Value.
If the CONTRACTOR violates the contract, and leads to loss to the EMPLOYER, the EMPLOYER has
the right to request the CONTRACTOR to bear obliged compensation responsibility. However, the
compensation borne by the CONTRACTOR is limited to the EMPLOYER’s direct loss, and the
accumulated compensation amount shall not exceed 10% of the total value of the contract.
If the EMPLOYER fails to make payment according to the Contract, the CONTRACTOR is entitled to
suspend the delivery and to collect late payment fees from the EMPLOYER from the date of such
overdue, and the late payment fees should be calculated at: 0.06 % of overdue contract price ×
overdue days. The late payment penalty is capped at 5% of the Total Contract Value.
If the EMPLOYER delays the payment beyond 90days, the CONTRACTOR has right to terminate the
contract, and demand the EMPLOYER to bear the liability for breach of contract. If the liquidated
damages are not enough to pay for the CONTRACTOR’s loss, the EMPLOYER should pay for as actual
loss.
EMPLOYER’s damages under this Contract will not exceed the amount of any actual direct damages
of the CONTRACTOR up to the Total Contract Value.

Payment of Damages If the innocent party requests payment of penalty or damages in pursuant
to the above provisions, the breaching party shall pay it within 60 business
days of receiving such notice.

Sub-Clause 29.1. (N/A)

Defects Liability Period Sub-Clause 30.1. (N/A)

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 Making Good Defects Sub-Clause 30.2.

Sub-Clause 30.2. is completed as follows:

The CONTRACOTR shall make good the defect or damage by repair or replacement, at EMPLOYER’s
choice. The EMPLOYER shall make labor available as required for repair and re-erection free of
charge to the CONTRACOTR.

Extension of Defects
Liability Period

Sub-Clause 30.4.
In the event of suspension, the Defects Liability Period shall not last more than Equipment liability
period refers to a fixed period, that is, after 8000 running hours or after 24 months from the
issuance date of bill of lading of the last shipment, whichever earlier.
Failure to Remedy Defects Sub-Clause 30.5.

Sub-Clause 30.5. is modified as follows:

In point a), the terms “risk and” are deleted.
In point a), the beginning of the second sentence is modified as follows: “The costs, other than
labor charges, properly incurred by the EMPLOYER ….

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 In point c), the last sentence is deleted (“The EMPLOYER shall to the exclusion of any other remedy
…”).
Defects Liability Certificate Sub-Clause 30.11.

Sub-Clause 30.11. is completed as follows:

If such certificate has not been issued within this 28 day period, it shall be deemed to have been
issued at the expiry of the said period.
Variation Order Procedure Sub-Clause 31.2.

Sub-Clause 31.2. is completed as follows:

The CONTRACOTR shall not be obliged to accept any variation if the cost
implications, including any variations already made, is to increase or
reduce the Contract Price by more than ten percent (10%).

Disagreement on Adjustment of
the Contract Price

Sub-Clause 31.3.
Second paragraph of Sub-Clause 31.3. is modified as follows:
If the rates contained in Annex A [Schedule of Prices] are not directly applicable to the specific work
in question, suitable rates shall be established by mutual agreement reflecting the level of pricing in
the Schedule of Prices.

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Ownership of Plant Sub-Clause 32.1.

Sub-Clause 32.1. a) is deleted and replaced as follows:

a) when Plant/Equipment is delivered FOB (Incoterms 2000), China Sea Port.
Sub-Clause 32.1. Is completed by point c) as follows:
c) for offshore Plant, in any case before the concerned Plant pass the Ethiopian border.
Method of Application Sub-Clause 33.2.

Application for payment shall be made as stated in Annex B [Payment Terms].

Payment

Sub-Clause 33.5.
The period for payment shall be in accordance with Annex B [Payment Terms].

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Delayed Payment Sub-Clause 33.6.

Payment of Damages

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 If the EMPLOYER fails to make payment according to the Contract, the
CONTRACTOR is entitled to suspend the delivery and to collect late payment
fees from EMPLOYER/End User from the date of such overdue, and the late
payment fees should be calculated at: 0.06 % of overdue contract price ×
overdue days. The late payment penalty is capped at 5% of the Total Contract
Value.
If the EMPLOYER delays the payment beyond 90days, the CONTRACTOR has
right to terminate the contract, and demand the EMPLOYER to bear the
liability for breach of contract. If the liquidated damages are not enough to
pay for the CONTRACTOR’s loss, the EMPLOYER should pay for as actual loss.
EMPLOYER’s damages under this Contract will not exceed the amount of any
actual direct damages of the CONTRACTOR up to the Total Contract Value.
If the innocent party requests the breaching party to make payment of
penalty or damages in pursuant to the above provisions, the breaching party
shall pay it within 60 business days of receiving such notice.
Procedure Sub-Clause 34.1.

Sub-Clause 34.1. is modified as follows:

In a), “28 days” is deleted and replaced by “90 days”.
EMPLOYER’s Risks Sub-Clause 37.2.

Sub-Clause 37.2 j) is deleted and replaced as follows:

(j) damage (other than that resulting from the CONTRACTOR'S instructions for erection) which is the
inevitable result of the construction of the Works in accordance with the Contract;

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 CONTRACOTR’s Risks

Sub-Clause 37.3.
Sub-Clause 37.3 is deleted and replaced as follows:
The CONTRACTOR'S Risks are :
(a) Any fault, error, defect or omission in the design of any part of the Works by the CONTRACOTR or
any person for whom it is responsible; and
(b) All other reasonably foreseeable risks (provided that measures could reasonably have been
taken to prevent the loss, damage or injury) other than EMPLOYER’s Risks defined above.
Risk Transfer Date Sub-Clause 38.2.

Liability for Indirect or

Consequential Damage

Sub-Clause 38.2 is deleted and replaced as follows:

The Risk Transfer Date in relation to the Plant thereof is the earliest of either:

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 (a) the date of delivery FOB (Incoterms 2000), China Sea Port;
(b) the date of expiry of the notice of termination when the Contract is terminated by the
EMPLOYER or the CONTRACOTR in accordance with these Conditions.
Sub-Clause 42.1
Point a) of Sub-Clause 42.1 is deleted and replaced as follows:
(a) for the liquidated damages as expressly provided in Clauses 27.1 and
28.7, and

Maximum Liability

Sub-Clause 42.2.
The beginning of Sub-Clause 38.2 is completed as follows: “ Except in case of gross negligence or
wilful misconduct,”.

Definition of Force
Majeure

Sub-Clause 44.1
The beginning of Sub-Clause 44.1 d) is completed by the term “strikes”.

Effect of Force Majeure

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 Sub-Clause 44.2
Sub-Clause 44.2 is completed as follows:
If the CONTRACOTR is prevented from performing any of its obligations under the Contract due to
Force Majeure and suffers delay and/or incurs costs by reason of such Force Majeure, the
CONTRACOTR shall be entitled to an Extension of Time and payment of such costs.

Termination in Consequence of
Force Majeure

Sub-Clause 44.7
The beginning of Sub-Clause 44.7 is modified as follows:
If circumstances of Force Majeure have occurred and shall continue for a single period of 90 days or
an aggregate period of 182 days then,…

CONTRACOTR’s Default

Sub-Clause 45.2
Sub-Clause 45.2 a) is modified as follows:
“has failed to comply with material obligations within a reasonable time with a notice under
Sub-Clause 45.1, or”
Sub-Clause 45.2 is completed by a new point d) as follows:
“(d) has incurred performance or delay liquidated damages up to the maximum amount.”

Statutory and Other

Regulations

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 Sub-Clause 47.2.
1st para. of Sub-Clause 47.2 is completed as follows:
In such cases, CONTRACOTR shall also be entitled to a reasonable extension of time.

Customs and Sub-Clause 48.1.

Import Duties

Sub-Clause 48.1 is completed as follows:

Price for goods are quoted FOB [Incoterms 2000] , China Sea Port, as stated in Annex A [Schedule of
Prices].

Clearance through Sub-Clause 48.2.

Customs

Sub-Clause 48.2 is deleted and replaced as follows:

The EMPLOYER shall be the importer of all Plant and CONTRACTOR'S Equipment in Ethiopia. The
EMPLOYER shall be liable for the payment of all import VAT, import taxes and Customs duties to
appropriated authorities. The EMPLOYER shall obtain clearance through the customs of all Plant and
CONTRACTOR'S Equipment and procure any necessary government consent to the re-export of
CONTRACTOR'S Equipment when it is removed from the Site.

Disputes concerning
Engineer’s Decisions

Sub-Clause 50.1.
The 2nd para of Sub-Clause 50.1 is deleted.

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Arbitration Sub-Clause 50.2.

The rules of arbitration shall be those of the Rules of Arbitration of the Singapore International
Arbitration Centre. The number of arbitrators shall be three (3).
Works to Continue Sub-Clause 50.3.

The first sentence of Sub-Clause 50.3 is deleted and replaced by:

Performance of the Contract shall be subject to the decision of the arbitrators during arbitration
proceedings unless the EMPLOYER shall order suspension.
Time Limit for Sub-Clause 50.4.
Arbitration
Sub-Clause 50.4 is deleted.
Limitation on Sub-Clause
Warranty

This warranty shall not apply to or include and the CONTRACTOR shall not be responsible for:
(a) failure to operate the equipment as per the operating manual provided by the CONTRACTOR;

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(b) failures resulting from abuse, neglect, and/or improper repair not in line with the prudent
engineering practice;
(c) failures resulting from unauthorized repair or adjustments;
(d) damage to parts, fixtures, housings, attachments, and accessory items which are not part of the
Supplies under the Contract.
(f) damage attribute to the erection, marine and Ethiopia local transportation etc.

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