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CONDITIONS OF CONTRACT

GENERAL CLAUSES

1. DEFINITIONS

1.1. In these conditions of contract, the following definitions shall apply:

Award Date means the date specified in the Letter of Award;

Change of Control means the transfer of at least 50% of the issued share capital of the Supplier (if an incorporated entity) or the legal power to direct or cause the direction of the general management of the Supplier (Control) to a person or persons other than the person or persons who hold Control of the Supplier as at the date of submission of the Tender;

Confidential Information means confidential information as defined in Clause 25.1;

Contract means the Specification, the ITT, these conditions of contract, the schedules and annexes to these conditions of contract, the Tender, the schedule of prices or rates submitted by the Supplier as part of the Tender, the Letter of Award and any written agreement between both parties stated to form part of the Contract, together with the attachments and subsequent alterations and additions agreed in writing, as defined more precisely in Clause 26;

Contract Price means the price set out in Clause 16.1 for supply of all the goods and services which are indicated in Clause 4.2(a) to (f) of this Contract, subject to such additions or deductions as may be made under the provisions of the Contract;

Defect means any non-conformity of the Plant as defined in Clause 22;

Extended Maintenance Period means the period of three years or 6,000 hours’ use of the Plant (whichever of those periods is longer) which commences on the expiry of the Initial Maintenance Period;

Equipment means any or all of the items of equipment (machinery, materials, components, spare parts, etc.), including the Plant, which the Supplier undertakes to supply under this Contract as more particularly set out in Annex 2;

INCOTERMS mean the trade terms issued by the International Chamber of Commerce as in force at the date on which the Contract is signed;

Initial Maintenance Period means the period of three (3) years from the date of Taking Over or the period covering 6,000 hours’ use of the Plant, whichever of those periods is the longer;

Inspection Certificate means the document to be issued by the Supplier and signed by Purchaser certifying that the Equipment is ready for operation in compliance with the terms of the Contract;

ITT means the documentation and instructions issued to tenderers as part of the invitation to tender for supply of the Plant;

Letter of Award means the letter issued by the Purchaser to the Supplier, by which the Purchaser accepts the Tender;

Minimum Performance Levels means the minimum performance parameters specified in Annex 1 below which Taking Over shall not take place;

Party means either the Supplier or the Purchaser, and together the Parties;

Performance Test Procedures means the procedures and prescriptions to be observed during Performance Testing, as specified in Annex 4;

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Performance Testing means the operation of the Plant intended to demonstrate that the Plant, when used, reaches the performance and other characteristics as required by, and guaranteed in, the Contract, according to Clause 13;

Plant means the mobile harbour crane/material handler, which is the subject-matter of this Contract, as described in the Specification;

Project Representative means the representative of either Party nominated in accordance with Clause 6.2;

Purchaser means Londonderry Port and Harbour Commissioners, trading as Foyle Port whose principal office is at Port Road, Lisahally, Londonderry BT47 6FL Northern Ireland;

Retention Sum means an amount equal to 5% of the Contract Price;

Retention Sum Release Date means the first anniversary of the date of Taking Over of the Plant;

Service Levels means the service levels for servicing and maintenance (scheduled and unscheduled) set out in Annex 7;

Site means the premises where the Plant is to be delivered in accordance with this Contract, as defined in Contract Schedule A;

Specification means the description of the Plant to be supplied under the Contract which, as a minimum, meets the requirements of the Specification provided by the Purchaser in accordance with the ITT and is as set out in Contract Schedule B;

Start Up means the stage during which the Plant is put into use for testing its correct operation, which stage ends with the completion of the Performance Testing;

Supplier means the person, firm or company with whom the Purchaser enters into the Contract;

Taking Over means the moment when the Plant is deemed to be fully accepted by the Purchaser according to Clause 14.1 or Clause 14.2;

Taking Over Certificate means the document to be issued in accordance with Clause 14.3 certifying that the Taking Over of the Plant has occurred;

Technical Documentation means the documentation (in the English language) regarding the Equipment, operation and maintenance of the Plant, to be provided by the Supplier, which is listed in Annex 2-C;

Tender means the document(s) submitted by the Supplier to the Purchaser in response to the ITT and any subsequent request for information issued by the Purchaser;

Time Schedule means the Time Schedule defined in Clause 7.1, as may be altered according to Clause 7.2.

2. GOOD FAITH AND FAIR DEALING

2.1 In carrying out their obligations under the Contract the Parties will act in accordance with the principles of good faith and fair dealing.

2.2 The provisions of the Contract, as well as any statements made by the Parties in connection with it, shall be interpreted in good faith.


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3. ENTRY INTO FORCE OF THE CONTRACT

3.1 The Contract shall enter into force on the Award Date.

4. SUBJECT MATTER AND SCOPE OF THE CONTRACT

4.1 The purpose and subject matter of the Contract is the supply of the Plant. 4.2 The supply of the Plant comprises the following:

(a) the supply of the Equipment and goods listed in Annex 2-A;

(b) the supply of spare parts for operation as specified in Annex 2-B;

(c) the supply of the Technical Documentation specified in Annex 2-C;

(d) the training of Purchaser's personnel in accordance with Clause 15.2 and Annex 5;

(e) the re-assembly, supervision of Start Up and Performance Testing of the Plant in accordance with Clause 13 and Annex 4;

(f) servicing and maintenance (scheduled and unscheduled) of the Plant during the Initial Maintenance Period in accordance with Clause 15.3 and Annex 7; and

(g) provided that before the expiry of the Initial Maintenance Period the Contracting Authority gives written notice to the Supplier that it wishes to purchase the provision of servicing and maintenance of the Plant during the Extended Maintenance Period at the price set out in the Tender (Extended Maintenance Price), servicing and maintenance (scheduled and unscheduled) of the Plant during the Extended Maintenance Period in accordance with Clause 15.3 and Annex 7.

4.3 The Supplier guarantees that the Plant, following Start Up, will have the performance characteristics specified in the Specification and Annex 1. It is agreed that the successful completion of Performance Testing and issue of the Taking Over Certificate in conformity with the requirements specified in the Contract means that the Supplier has fulfilled its obligation to guarantee the performance as indicated in this Clause.

4.4 The Minimum Performance Levels and, more generally, all guarantees given by the Supplier with respect to performance and operation of the Plant are conditional upon the observance by the Purchaser of the following obligations:

(a) the management, operation and maintenance of the Plant must be in accordance with the written instructions and procedures notified in writing in advance by the Supplier to the Purchaser; and

(b) the materials used for maintenance of the Plant must fulfil the requirements stipulated by the Supplier.

4.5 The Plant shall be designed and manufactured in accordance with the legislative requirements in force in Northern Ireland at the Award Date and in accordance with the standards specified, if any, in the Specification. In case of a change of such legislative requirements after the Award Date, and before Taking Over, the Supplier shall be obliged to procure that the Plant conforms to this change and the Purchaser shall be obliged to pay the additional costs related therewith and shall accept any consequent time extension.

4.6 The Supplier shall obtain import permits and/or licenses required for the import of any part of the Equipment into Northern Ireland. The Supplier shall obtain such permits and licenses


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within the time limits stated in the Time Schedule or, if not so stated, within reasonable time having regard to the time for delivery of the Equipment and the time for Start Up.

4.7 The Purchaser shall take all reasonable steps to assist the Supplier in performing its obligations under the Contract.

5. ALTERATIONS AND ADDITIONAL WORK

5.1 The Supplier is entitled, until Taking Over, to make any non-substantial alterations and additions to the Plant. Non-substantial alteration means any modification or addition which does not affect the characteristics of the Plant, its Minimum Performance Levels and the time for completion of the Supplier’s obligations in accordance with the Time Schedule and which does not entail charges or costs for the Purchaser. The Supplier must notify the Purchaser in writing of the proposed modifications or addition and shall be entitled to carry them out if the Purchaser does not object within 14 days from the date of receipt of such notification. The Purchaser shall not act unreasonably in raising any such objection as described in this clause 5.1.

5.2 The Purchaser may, at any time before Taking Over, request such alterations or additions to the Plant which it considers appropriate and which had not been considered when negotiating the Contract. In such case, the Supplier shall submit an estimate of the cost variations and the possible implications with respect to the Time Schedule and the Minimum Performance Levels, and the Purchaser will decide if it wants to accept such implications or request the Supplier to justify the reasons for such implications or provide revised implications for the Purchaser’s consideration. If accepted, the Contract will be deemed amended accordingly.

6. ASSIGNMENT, SUBCONTRACTING AND PARTIES' REPRESENTATIVES

6.1 The Supplier is not entitled to assign, novate, mortgage, charge, transfer, subcontract or deal in any other way with the Contract (or any part) without the prior written consent of the Purchaser.

6.2 Within thirty (30) days after the Award Date, each Party will nominate a Project Representative. Nominations of each Party must be notified to the other Party in writing. The Project Representative shall be authorised to take decisions on behalf of the respective Party regarding the performance of the Contract. The Project Representative must be fluent in English.

7. TIME SCHEDULE

7.1 The Time Schedule, set out in Annex 3, specifies the dates for the performance by the Parties of the main obligations under this Contract.

7.2 Save for extensions of time due to force majeure under Clause 24, it is agreed that, if either Party:

(a) does not comply with the dates specified in the Time Schedule for its obligations; or

(b) does not perform in a timely manner any obligation upon which the performance of the other Party's obligations is conditional; or

(c) otherwise causes situations which delay the timely performance,

the deadlines for performance by the other Party shall be automatically extended, to the extent they have been affected by the above-mentioned circumstances. In such case, the Parties will agree as soon as possible upon the corrections to be made to the Time Schedule.


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SUPPLY OF TECHNICAL DOCUMENTATION AND EQUIPMENT

8. TECHNICAL DOCUMENTATION

8.1 The Supplier will provide the Purchaser with both a hard copy and a soft (or electronic) copy of the Technical Documentation which is listed in Annex 2-C in accordance with the timing set out in the Time Schedule.

8.2 For the avoidance of doubt, the Technical Documentation will have been tailored as necessary by the Supplier prior to Taking Over so that it relates to the Equipment ‘as supplied’ to the Purchaser (rather than remaining ‘general’ in nature), and the costs of any work involved in so tailoring the Technical Documentation shall be included in the Contract Price and accordingly for the sole account of the Supplier.

8.3 The Technical Documentation can be used only for the purpose of operating and maintaining the Plant.

9. SUPPLY OF THE EQUIPMENT

9.1 The Supplier agrees to ship the Equipment, in accordance with Clause 10, within the deadlines set out in the Time Schedule.

9.2 If the shipment cannot be affected at the date set out in the Time Schedule due to reasons for which the Purchaser is solely responsible, the Supplier shall be entitled to store the Equipment at the Purchaser's expense in suitable premises.

10. SHIPMENT

10.1 Subject to Clause 14.4, the Supplier will deliver the Equipment in accordance with the INCOTERMS specified in Contract Schedule C and with Clause 13.2.

10.2 The Supplier will provide, at its expense, such packing as is usual for the respective Equipment and is suitable for the agreed means of transportation and for the foreseeable conditions of storage at the destination.

10.3 Details regarding marking, packing list and other documents to be provided along with the associated Equipment are contained in Contract Schedule C.

11. TAKING DELIVERY OF THE EQUIPMENT

11.1 The Purchaser shall take delivery of the Equipment at the Site.

11.2 The Purchaser shall examine the Equipment at the place where it has taken delivery not later than 14 days after the Equipment arrives at the place of destination. The Purchaser shall check that the packing is not damaged and that all the Equipment indicated in the respective shipping lists has been received and has not been damaged.

11.3 The Supplier is entitled to take part (by itself or through a representative) in the examination indicated in Clause 11.2. If the Supplier informs the Purchaser in advance that it desires to take part in such examination, the Purchaser shall give timely notice of the arrival of the Equipment and the date fixed for the examination.

11.4 If it appears that certain Equipment is missing or damaged, the Parties shall consult with each other in order to agree upon the repair or replacement of missing or damaged Equipment and to evaluate the impact of such occurrence upon the Time Schedule. If the loss


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or damage occurred before the risk passed to the Purchaser, the Supplier shall bear the cost and risk relating to the above repair or replacement.

12. SPARE PARTS

12.1 The spare parts for the operation as indicated in Annex 2-B are included in the Contract Price and will be made available at the Site before the Start Up.

12.2 Any further spare parts may be supplied, on request of the Purchaser, at the price in force at the time of receipt of the request, for a period of 20 years from Taking Over.

12.3 Nothing in this Contract shall oblige the Purchaser to purchase any spare parts from the Supplier.

TESTING, TAKING OVER, TRAINING AND MAINTENANCE

13. PERFORMANCE TESTING

13.1 The Supplier shall provide the Purchaser with at least 4 weeks’ notice of the final full testing to be carried out of the Plant before it leaves the Supplier’s premises. The Supplier shall carry out such testing in the presence of up to two representatives of the Purchaser and the Supplier shall arrange travel and accommodation (of a reasonable standard) in order that those representatives may attend such testing.

13.2 The Plant will be re-assembled at the Site by the Supplier in a timely and efficient manner and submitted to Performance Testing by the Supplier in the presence of the Purchaser or its nominated representative within the deadlines set out in the Time Schedule. In advance of Performance Testing, the Purchaser shall name its representatives to witness the Performance Testing. For the avoidance of doubt, the costs and expenses of all work undertaken by the Supplier regarding re-assembly and Performance Testing shall be included in the Contract Price and accordingly for the sole account of the Supplier.

13.3 Performance Testing will be carried out in accordance with the Performance Test Procedures set out in Annex 4 and, with respect to matters not indicated in such document, in accordance with the standards and principles normally applied in test runs for plant of a similar kind to the Plant. The Supplier shall draw up a protocol that will report all the results of the tests and which will be signed by both Parties. If there is disagreement between the Parties about the successful completion of the Performance Testing, the Project Representatives will state their respective point of view in the protocol.

13.4 If testing reveals that the Plant does not meet the Minimum Performance Levels, the Supplier shall without delay take all necessary steps to correct such deviation. If the deviation is anything other than insignificant, new testing will be carried out within a reasonable time at the request of either Party, with respect to the portion of the Plant that did not meet the Minimum Performance Levels.

13.5 The Performance Testing (including any repeated tests in accordance with Clause 13.4) must be completed within 7 days from the date on which Start Up has commenced. If it has not been possible to carry out the Performance Testing, or the repeated Performance Testing, within the above time-limit, for reasons for which the Purchaser is solely responsible, such time limit shall be extended for a further 7 days. If after such further time limit no Performance Testing has been carried out and provided this is due to reasons for which the Purchaser is solely responsible, the Performance Testing shall be considered as having been successfully carried out at that date.

13.6 The Supplier shall up to the time of Taking Over perform, at its expense, all repairs, modifications, replacements and additions to the Equipment that are necessary for the


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purpose of attaining the Minimum Performance Levels and complying with the Supplier's obligations under this Contract.

14. TAKING OVER

14.1 The Plant shall be deemed to have been taken over by the Purchaser, and Taking Over is deemed therefore to occur, at the time when:

(a) the Performance Testing has shown that the Plant has attained the Minimum Performance Levels; or

(b) the repeated Performance Testing has shown that the Plant has attained the Minimum Performance Levels; or

(c) the Performance Testing has not been carried out within the time limit set out in Clause 13.5 for reasons for which the Purchaser is solely responsible.

14.2 If the Plant, or a portion thereof, is taken into operation without the Supplier's permission, and before Taking Over in accordance with Clause 14.1, the portion of the Plant which has been taken into operation shall be deemed to have been taken over. The Supplier shall notify the Purchaser in writing of the date and time when the Plant or portion thereof is deemed to have been taken over under the provisions of this Clause.

14.3 Within 5 days from the date on which Taking Over has occurred, the Purchaser shall issue the Taking Over Certificate conforming to the form in Annex 6 to confirm Taking Over. If the Purchaser has not so issued the Taking Over Certificate, notwithstanding that Taking Over has occurred in accordance with Clause 14.1 or Clause 14.2, the Supplier shall issue the Taking Over Certificate and submit it to the Purchaser.

14.4 The Plant shall remain at the risk of the Supplier until Taking Over. Upon Taking Over, the Purchaser assumes full responsibility for the Plant and its operation. The Equipment other than the Plant shall remain at the risk of the Supplier until delivery.

14.5 Title to the Plant shall pass to the Purchaser on Taking Over. Title to the Equipment other than the Plant shall pass to the Purchaser on delivery. Until Taking Over, the Purchaser shall have no right to dispose of the Plant without written agreement between the Parties.

14.6 During the term of the Contract and for a period of 1 year afterwards, the Supplier shall maintain in force the following insurance policies with reputable insurance companies:

(a) public liability insurance for not less than £5 million (sterling) per claim; and

(b) product liability insurance for not less than £5 million (sterling) in aggregate for all claims arising in any period of insurance; and

(c) employer’s liability insurance for not less than £5 million (sterling) per claim,

and the Supplier shall ensure that the Purchaser’s interest is noted on each insurance policy, or that a generic interest clause has been included. On taking out and on renewing each policy, the Supplier shall promptly send a copy of the receipt for the premium to the Purchaser. On the Purchaser's written request, the Supplier shall provide the Purchaser with copies of the insurance policy certificates and details of the cover provided. The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under the Contract which they are contracted to fulfil. The Supplier shall do nothing to invalidate any insurance policy or to prejudice the Purchaser’s entitlement under it, and shall notify the Purchaser if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. The Supplier's liabilities under the Contract shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in this Clause. If the Supplier fails or is unable to maintain insurance in accordance with this


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Clause, or fails to provide evidence that it has paid the current year's premiums, the Purchaser may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier.

15. TRAINING & MAINTENANCE

15.1 The Purchaser shall provide suitably qualified personnel to be trained by the Supplier in the operation and maintenance of the Plant.

15.2 The Supplier agrees to send one or more technicians or experts to train the Purchaser's personnel at the Site regarding the operation and maintenance of the Plant. The number of persons dispatched and the duration of their presence at the Site is indicated in Annex 5. For the avoidance of doubt, the costs and expenses of all work undertaken by the Supplier regarding training shall be included in the Contract Price and accordingly for the sole account of the Supplier.

15.3 The Supplier will service and maintain the Plant during the Initial Maintenance Period and (if the Purchaser gives notice in accordance with Clause 4.2(g)) the Extended Maintenance Period in accordance with the Service Levels, such servicing and maintenance work to be undertaken always by suitably qualified and experienced personnel only. For the avoidance of doubt, the costs and expenses of all work undertaken by the Supplier regarding servicing and maintaining the Plant during the Initial Maintenance Period shall be included in the Contract Price and accordingly for the sole account of the Supplier and (provided that the Purchaser gives notice in accordance with Clause 4.2(g)) the costs and expenses of all work undertaken by the Supplier regarding servicing and maintaining the Plant during the Extended Maintenance Period shall be included in the Supplier’s Extended Period Warranty and Maintenance Price as specified in the Tender.

PRICE & PAYMENT

16. CONTRACT PRICE

16.1 The Contract Price and the Extended Maintenance Price are both stated in Contract Schedule D.

16.2 The Contract Price and the Extended Maintenance Price are both fixed and not subject to revision.

17. PAYMENT CONDITIONS

17.1 Payment of the Contract Price shall be made by the Purchaser to the Supplier in accordance with the payment conditions set out in Contract Schedule E at a bank designated by the Supplier. Banking charges incurred regarding such payment shall be for the account of the Supplier. All undisputed sums duly invoiced by the Supplier shall be paid in full by the Purchaser without any set off, counterclaim or deduction whatsoever and are not subject to any settlement, discount or other special terms of payment. The amounts due shall be transferred, unless otherwise agreed, by BACS to the Supplier’s bank in the Supplier’s country to the account of the Supplier.

17.2 If a payment which the Purchaser is to pay under this Contract is not received by the Supplier by the due date, the Purchaser shall pay overdue interest, until the payment is made in full to the Supplier. Unless otherwise agreed, the rate of interest shall be 2% a year above the Bank of England’s base rate from time to time (but at 2% a year for any period when that rate is below 0%).


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17.3 If the Purchaser exercises its option in accordance with Clause 4.2(g), payment of the Extended Maintenance Price shall be made by the Purchaser to the Supplier monthly in arrears in 36 equal payments commencing on the expiry of the Initial Maintenance Period, at a bank designated by the Supplier. Banking charges incurred regarding such payment shall be for the account of the Supplier. All undisputed sums duly invoiced by the Supplier shall be paid in full by the Purchaser without any set off, counterclaim or deduction whatsoever and are not subject to any settlement, discount or other special terms of payment. The amounts due shall be transferred, unless otherwise agreed, by BACS to the Supplier’s bank in the Supplier’s country to the account of the Supplier.

18. RETENTION

Without limitation on the operation of Clause 22 and without prejudice to any other right or remedy to which the Purchaser may be entitled, the Purchaser shall be entitled to retain the Retention Sum (and any interest that may accrue thereon) and use the Retention Sum to meet in whole or part any liability of the Supplier under the provisions of Clause 22.1 up to and including the Retention Sum Release Date on which date the balance (if any) of the Retention Sum will be released by the Purchaser to the Supplier. To the extent that the Retention Sum is insufficient to meet such liability, the shortfall will be recoverable by the Purchaser from the Supplier as a debt due on demand.

19. TAXES, DUTIES, ETC.

The Contract Price is exclusive of VAT which shall, if applicable, be payable by the Purchaser subject to receipt of a correct and valid VAT invoice from the Supplier. For the avoidance of doubt, all taxes and duties or other charges incurred by the Supplier in relation to the Contract and its performance will be borne by the Supplier.

NON-PERFORMANCE AND ITS CONSEQUENCES

20. CONSEQUENCES OF NON-PERFORMANCE

Without prejudice to other remedies that may be available, in the event the other Party fails to perform in a timely manner any material obligation under the Contract each Party is entitled to suspend performance of its obligations under the Contract until the default is remedied, subject to the following: a Party shall notify the other Party in writing of its intent to suspend and grant a final time period to the other Party to remedy the default, failing which the right of suspension may be exercised without further delay.

21. CONTRACT TERMINATION

21.1 The Purchaser shall be entitled to terminate the Contract on immediate written notice in the event that:

(a) notwithstanding the observance of the Performance Test Procedures contained in Annex 4, the Plant fails to attain the Minimum Performance Levels at the latest time for Taking Over specified in the Time Schedule, provided this is neither the result of force majeure nor the result of circumstances for which the Purchaser is solely responsible; or

(b) the Supplier has failed to perform a substantial obligation under the Contract after having been served a notice of failure and make good by Purchaser within 14 days; or

(c) the Supplier becomes bankrupt or insolvent, goes into liquidation, has an administrator appointed (or an application for such appointment is made to a court), begins negotiations with its creditors with a view to re-scheduling its debts, ceases (or threatens to cease) doing


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business, or any act is done (or an event occurs that under applicable law in any jurisdiction which has a similar effect to any of these events or acts), and the Supplier fails to provide, at the Purchaser's request, an adequate security (e.g. bank guarantee, insurance company guarantee) for the fulfilment of its obligations under the Contract; or

(d) a Change of Control occurs without the prior written consent of the Purchaser;

(e) the Supplier gives or offers to give, directly or indirectly, to any person any bribe, gift, gratuity, commission or other thing of value as an inducement or reward for doing or forbearing to do any action in relation to the Contract; or

(f) any of the events described in article 89(1) of the Utilities Contracts Regulations 2016 occurs;

(g) a challenge to the award of the Contract or to any aspect of the competition leading to the award of this Contract on the grounds of non-compliance with EU utilities procurement rules is received by the Purchaser.

21.2 The Supplier shall be entitled to terminate the Contract if:

(a) the Purchaser has failed to perform a substantial obligation under the Contract other than payment after having been served a notice of failure and make good by Supplier within 14 days; or

(b) the Purchaser is in breach of any of its undisputed payment obligations and this breach continues longer than ninety (90) days, or such other period as the Parties may agree; or

(c) the Purchaser becomes bankrupt or insolvent, goes into liquidation or any act is done or event occurs that under applicable law has a similar effect to any of these events or acts, and the Purchaser fails to provide, at the Supplier's request, an adequate security (e.g. bank guarantee, insurance company guarantee) for the fulfilment of its obligations under this Contract.

21.3 Either Party is entitled to terminate the Contract in case of force majeure lasting for more than 30 days and having the effect of substantially depriving either or both of the Parties of what they were reasonably entitled to expect under this Contract, as specified in Clause 24.7.

21.4 Except as provided under Clause 21.5 hereunder, termination of this Contract shall not affect obligations which have already been performed at the time when the termination notice is given nor the right to receive payment for obligations already performed.

21.5 In case of termination pursuant to Clause 21.1(a), the Purchaser may require the Supplier at its own cost to remove the Equipment from the Site and to pay back the Contract Price, in as far as received, to the Purchaser.

21.6 In the event that this Contract is declared “ineffective” pursuant to the Utilities Contracts Regulations 2016, the Purchaser shall have no liability to the Supplier other than in respect of the Equipment and Services provided to and taken over (in accordance with Clause 14) by the Purchaser prior to the date on which such “ineffectiveness” order took effect. The Purchaser shall not be liable for any indirect or consequential losses arising from or in connection with any declaration of ineffectiveness of this Contract. The Parties agree that this Clause 21.6 represents a binding agreement between them which shall, to the extent permissible by law, survive and operate independently of the Contract notwithstanding any declaration of ineffectiveness of the Contract.

21.7 Contract termination by a Party is permitted only in the cases specified in this Clause 21.

22. DEFECTS IN THE PLANT AFTER TAKING OVER


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22.1 The Supplier shall at its own cost make good, by repair or replacement, in accordance with the timescales set out in the Specification (or, if none, then promptly) any defect or non-conformity in the Plant (hereafter referred to as a Defect), arising from faulty design, materials or workmanship. If the Plant is found to have a Defect that can be assumed to be present also in some other portion of the Plant, the Supplier shall investigate whether such further Defect is present and shall make good any further Defects found.

22.2 Unless otherwise specified in the Contract, the liability of the Supplier under the provisions of Clause 22.1 applies only to Defects that appear within a period of three (3) years from the date of Taking Over of the Plant.

22.3 The liability of the Supplier does not extend to Defects caused by circumstances for which the Supplier is not responsible, such as operation of the Plant by the Purchaser which is not in accordance with the Technical Documentation, failure to store the Equipment or other materials appropriately, alterations or repairs made without the Supplier's written permission, repairs carried out improperly by the Purchaser, or normal wear and tear.

22.4 Defects as covered by Clause 22.1 shall be notified to the Supplier in writing without undue delay after the Defects have appeared, and in any event no later than 30 days after the expiry of the defects liability period specified in Clause 22.2. Such notification shall include a description of the type and extent of the Defect. If the Purchaser has not notified the Supplier of a Defect as required by the provisions of this Clause, it forfeits its right to have the Defect made good in accordance with Clause 22.1.

22.5 Upon receipt from the Purchaser of a notification of a Defect of the type defined in Clause 22.1, the Supplier shall apply with such speed as the circumstances require (and in any event, reasonably promptly), due and proper measures to make good the Defect.

22.6 If a Defect appears that requires immediate action due to the risk of resultant damage, if the Supplier cannot immediately make good the Defect the Purchaser is entitled to apply all necessary measures to prevent or limit damage and shall be entitled to recover all costs associated with the investigation and application of such measures from the Supplier as a debt due on demand.

22.7 Parts replaced or repaired under the provisions of Clause 22.1 are subject to the same warranty from the Supplier, and under the same conditions as apply for the rest of the Plant, for a period of either one (1) year after such replacement or repair has been affected or the balance of the three (3) year period referred to in Clause 22.2, whichever is the longer. The defects liability period for the rest of the Plant is extended only by the time during which the Plant has been out of operation because of a Defect covered by the provisions of Clause 22.1.

22.8 Defective parts which have been replaced shall be made available to the Supplier without cost and shall become the property and risk of the Supplier.

22.9 If the Supplier has not made good a Defect within a time that can be regarded as reasonable with respect to the type and extent of the Defect and to other relevant circumstances, the Purchaser shall determine a reasonable final period within which the Supplier shall have made good the Defect.

22.10 If the Supplier has not made good a Defect within the final period determined by the Purchaser in accordance with Clause 22.9, the Purchaser is entitled to apply the measures required to make good the Defect at the Supplier's cost. If the Defect is so substantial as to significantly deprive the Purchaser of the benefit of the Contract, the Purchaser may terminate the Contract under Clause 21.1(b).

22.11 If the Purchaser has notified a Defect as described in Clause 22, and if it is found that there is no Defect for which the Supplier is liable, the Supplier is entitled to compensation for the reasonable costs which it has thereby incurred.


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23. LIMITATION OF LIABILITY

23.1 Neither Party shall be liable to the other Party for any indirect and consequential damages.

23.2 The limitation of liability under this Clause shall not apply in case of fraud or wilful misconduct.

FINAL CLAUSES

24. FORCE MAJEURE

24.1 Where a Party fails to perform one or more of its obligations under this Contract, the consequences set out in Clauses 24.4 to 24.7 will follow if and to the extent that the Party proves:

(a) that its failure to perform was caused by one of the events listed in Clauses 24.3(a) to 24.3(g) (inclusive); and

(b) that it could not reasonably have been expected to have taken the occurrence of the impediment into account at the time of the conclusion of the Contract; and

(c) that it could not reasonably have avoided or overcome the effects of the impediment.

24.2 Where a Party fails to perform one or more of its obligations under the Contract because of a default by a third party whom it has engaged to perform the whole or part of this Contract, the consequences set out in the Clauses hereunder shall apply to that Party only:

(a) if and to the extent that Party establishes the requirements set out in Clause 24.1; and

(b) if and to the extent that Party proves that the same requirements apply to the third party.

24.3 In the absence of proof to the contrary, a Party invoking this force majeure clause shall be presumed to have established the conditions described in Clause 24.1 (a) and (b) in case of the occurrence of one or more of the following impediments:

(a) war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilisation; or

(b) civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; or

(c) act of terrorism, sabotage or piracy; or

(d) act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought; or

(e) explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged breakdown of transport, telecommunication or electric current; or

(f) general labour disturbance (such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises) of a labour force other than that of the Party seeking to rely on this Clause or its subcontractors.

24.4 A Party successfully invoking Clause 24.1 is, subject to Clause 24.5 below, relieved of:

(a) its duty to perform its obligations under the Contract; and


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(b) any liability in damages or any other contractual remedy for breach of contract,

from the time at which the impediment causes the failure to perform if notice thereof is given without delay or, if notice thereof is not given without delay, from the time at which notice thereof reaches the other Party.

24.5 Where the effect of the impediment or event invoked is temporary, the consequences set out under Clause 24.4 above shall apply only insofar, to the extent that and as long as the impediment or the listed event invoked impedes performance by the Party invoking this Clause of its contractual duties. Where this Clause applies, the Party invoking this Clause is under an obligation to notify the other Party as soon as the impediment or listed event ceases to impede performance of its contractual duties to any extent.

24.6 A Party invoking this Clause is under an obligation to take all reasonable measures to limit the effect of the impediment or event invoked upon performance of its contractual duties.

24.7 Where the duration of the impediment invoked under Clause 24.1 or of the listed event invoked under Clause 24.3 exceeds 30 days and has the effect of substantially depriving either or both Parties of what they were reasonably entitled to expect under the Contract, the non-affected Party has the right to terminate the Contract by notification to the other Party.

24.8 For the avoidance of doubt, the consequences of the actual or impending exit of the United Kingdom of Great Britain and Northern Ireland from the European Union shall not entitle either party to exercise any of the rights under Clause 24.

25. CONFIDENTIALITY

25.1 Confidential Information in the Contract means all technical, financial or commercial information stated by either Party to be confidential or that is confidential in nature, provided, however, that the term “Confidential Information” shall not include any information which:

(a) was already known to the receiving Party at the time of disclosure by or on behalf of the other Party; or

(b) at the time of disclosure to a Party is part of literature or other sources of knowledge accessible to the public or which after such disclosure becomes part of literature or other sources of knowledge accessible to the public, without the culpable negligence or action of the other Party, its employees or third parties it is responsible for; or

(c) was available to the receiving Party from a source other than the disclosing Party, provided that such source is not under any confidentiality obligation to the disclosing Party; or

(d) is developed by a Party independently of any information disclosed by or on behalf of the disclosing Party.

The burden of proof in respect of this Clause is on the party claiming that any of the exceptions specified under (a) to (d) shall apply.

25.2 Each Party shall keep in strict confidence all Confidential Information obtained from the other Party during performance of the Contract. Each Party shall use Confidential Information only to the extent necessary to fulfil its obligations under the Contract and for the use of the Plant. Each Party shall keep in strict confidence and shall not disclose to any third party or to any media the terms of the Contract without written agreement between the Parties.

25.3 Each Party may disclose Confidential Information to its employees and to third parties only to the extent strictly necessary for the performance of this Contract and for the use of the Plant, or as required by law (including, but not limited to, the Freedom of Information Act 2000 to


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which the Purchaser is subject). A Party so disclosing shall cause its employees to observe the obligations of this Clause.

25.4 Each Party shall store away carefully the Confidential Information disclosed by the other Party and shall take reasonable measures to prevent disclosure to unauthorised parties. A receiving Party shall copy the Confidential Information disclosed by the other Party only to the extent that this is necessary in the context of the purpose.

25.5 The obligations contained in this Clause shall survive any termination or expiration of the Contract.

26. CONTRACT DOCUMENTS AND ATTACHMENTS

26.1 This Contract includes these conditions of contract and the schedules and annexes to these conditions of contract and subsequent alterations and additions thereto agreed in writing by the Parties. The Contract constitutes the entire agreement between the Supplier and the Purchaser with respect to the subject matter of the Contract and supersedes all communications, negotiations and agreements (whether written or oral) of the Parties with respect thereto made prior to the date of the Contract.

26.2 Wherever in this Contract the word “agreed” is used, it shall be read as meaning agreed in writing or confirmed in writing.

26.3 The following attachments constitute an integral part of the Contract:

CONTRACT SCHEDULES from A to E

ANNEXES from Annex 1 to Annex 7

26.4 In the event of any conflict between any term of any of the documents comprising this Contract and any term of any other document comprising this Contract, the documents shall take priority in the following descending order:

(a) these Conditions of Contract (not including the schedules or annexes);

(b) schedules A to E to these Conditions of Contract;

(c) the ITT;

(d) the Letter of Award;

(e) the annexes to these Conditions of Contract;

(f) the Tender; and

(g) the schedule of prices and rates submitted by the Supplier in response to the Tender].

27. APPLICABLE LAW AND COURTS

27.1 This Contract shall be governed by the laws of Northern Ireland.

27.2 The Parties submit to the exclusive jurisdiction of the courts of Northern Ireland.

28. RESOLUTION OF DISPUTES

28.1 Any disputes and disagreements arising with respect to the Contract shall be settled in the first instance by means of settlement discussions between the Parties. If no agreement is


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reached within 30 days, the parties may, by agreement, refer the dispute for settlement through arbitration.

28.2 The arbitration, shall be conducted by one arbitrator (whose identity shall be nominated by mutual agreement of the Parties or, failing such agreement within 3 working days, nominated by the President of the Law Society of Northern Ireland) pursuant to the Arbitration Act 1996, and held in the English Language in Belfast, Northern Ireland.

29. NOTICES

29.1 Any notice to or by a party under the Contract shall be in writing and signed by the sender or its solicitors or, if a corporate party, an authorised officer or the solicitors of the sender or under the seal of or any power of attorney conferred by the sender.

29.2 Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient specified in the Contract or most recently notified by the recipient to the sender.

29.3 Any notice shall be effective for the purposes of this Contract upon delivery to the recipient or production by the sender of a facsimile transmittal confirmation report prior to 4.00 pm local time on a business day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next business day following delivery or receipt.


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CONTRACT SCHEDULE A

DEFINITION OF THE SITE

The site, where the Equipment is to be delivered in accordance with this Contract, is the following: Lisahally Terminal, Foyle Port, Port Road, Lisahally, Londonderry BT47 6FL, Northern Ireland.


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CONTRACT SCHEDULE B

SPECIFICATION

[] [Successful Tenderer’s response to question 2 of ITT Appendix 2 (which must, as a minimum meet the requirements of the Specification provided alongside the ITT) to be inserted]


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CONTRACT SCHEDULE C

SHIPMENT OF EQUIPMENT - MARKING - PACKING LIST AND OTHER DOCUMENTS.

C-1 ShipmentThe Equipment will be shipped as follows: DDP – Delivered Duty Paid (the Site) , as per INCOTERMS and subject to Clause 14.4 of the Conditions of Contract.

C-2 MarkingEach case/parcel shall be marked as appropriate with the following indications:Name of the Purchaser and Site addressContract No.Item No.Gross Weight / Net Weight KgPackage No.Dimensions cmStacked packing yes/noRecommendations for storage

C-3 Packing list and other documentsEach case/parcel or container shall contain a detailed packing list indicating its content.

For each shipment the Supplier will send to the Purchaser a complete list of all cases/parcels or containers, indicating their number, weight and size, together with the packing list of each case/parcel, in order to allow the Purchaser to check the goods at arrival.


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CONTRACT SCHEDULE D

PRICE OF THE CONTRACT

The Contract Price is: £ [● ] [DN: to be populated based on successful tenderer’s response]

If the Purchaser exercises the option to purchase it, the Extended Maintenance Price is: £ [●] [DN: to be populated based on successful tenderer’s response]


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CONTRACT SCHEDULE E

PAYMENT CONDITIONS

E-1 The payment of the Contract Price, will be effected as follows:

(a) 30% of the Contract Price, equal to £[●] [DN: to be populated based on successful tenderer’s response] on receipt of invoice following order being placed.

(b) 65% of the Contract Price, equal to £[●] [DN: to be populated based on successful tenderer’s response] on the date of Taking Over of the Plant against presentation of the following documents:

1. The relevant invoice; and2. The Taking Over Certificate.

(d) The Retention Sum (or the balance thereof) in accordance with Clause 18.1.


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ANNEX 1

Minimum Performance Levels

[●] [DN: to be provided by successful tenderer]

ANNEX 2

2-A – Equipment to be supplied by Supplier [●] [DN: to be provided by successful tenderer]

2-B – Spare parts [●] [DN: to be provided by successful tenderer]

2-C – Technical Documentation [●] [DN: to be provided by successful tenderer]

ANNEX 3

Time Schedule [●] [DN: to be provided by successful tenderer]

ANNEX 4

Performance Test Procedures [●] [DN: to be provided by successful tenderer]

ANNEX 5

Training of Purchaser’s personnel [●] [DN: to be provided by successful tenderer]

ANNEX 6

Taking Over Certificate [●] [DN: to be provided by successful tenderer]

ANNEX 7

Service Levels for servicing and maintenance (scheduled and unscheduled)[●] [DN: to be provided by successful tenderer]


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