General Condition of Contract
For
Supply of Plant and Machinery for Works
Form -B
General Conditions for the Supply of Plant and Machinery for Works Pertaining to the UPPCL
Definition of Terms:
In constructing these General Conditions and the annexed Specification the following words shall have the meaning herein assigned to them unless there is anything in the subject or context inconsistent with such construction:
The "Purchaser" shall mean the UPPCL Ltd and shall include his successors and assigns.
The "Contractor" shall mean the Tenderer whose tender shall be accepted by the Purchaser and shall include such Tender's heirs legal representatives, successors and assigns.
The "Sub Contractor" shall mean the person named in the contract for any part of the work or any person to whom any part of the Contact has been sublet with the consent in writing of Engineer and the heirs, legal representatives, successors and assigns of such person.
The "Engineer" shall mean the officer placing the order for the work with the Contractor and such other officer as may be duly authorised and appointed in writing by the Purchaser to act as Engineer for the purposes of the Contract and in case where no such officer has been so appointed, the Purchaser or his duly authorised representative.
"Plant" shall mean the plant and materials to be provided by the Contractor under the Contract.
The "Contract" shall mean and include the General Conditions Specifications, Schedules, Drawings, Form of Tender, Covering letter, Schedule of prices or the final General Conditions, Specifications and Drawings and the Agreement to be entered into under clause 3 of these General Conditions.
The "Specification" shall mean the Specification annexed to these General Condition and the Schedule thereto (if any).
The "Site" shall mean the site of the proposed work as detailed in the Specification or any other place in Uttar Pradesh where work is to be executed under the Contract.
"Month" shall mean calendar month.
"Writing" shall include any manuscript, typewritten or Printed statement under or over signature or seal, as the case may be.
Words importing persons shall include Firms, Companies, Corporation and other bodies whether incorporated or not.
Words importing the singular only shall also include the plural and vice versa where the context requires.
Contractor to inform himself fully:
The Candidate shall be deemed to have carefully examinee the General Conditions. Specifications, Schedules and Drawings. If he shall have any doubt as to the meaning of any portion of these General Conditions, or of the Specification he shall before signing the Contract set forth the particulars thereof and submit them to the Engineer in writing, in order that such doubt may be removed.
Contract:
A formal agreement shall, if required by the Purchaser, be entered into between the Purchaser and the Contractor of the proper fulfillment of the Contract, Further, if required by the purchaser, Contractor shall deposit with the purchaser as security for the due and perform of the contract such sum not being less than one per cent of the total value of the Contract as may be fixed by the Purchaser either in cash or any other form approved by the Purchaser. The Security deposit shall be refunded to the Contractor on delivery and check of the plant at the site of the work.
The Charges in respect of vetting and execution of the contract document shall be bone by the Contractor. The Contractor shall be furnished with an executed stamped counterpart of the agreement.
After the tender has been accepted by the Purchaser all order or instructions to the Contractor shall, except at herein otherwise provided, be given by the Engineer on behalf of Purchaser.
Contract Drawing:
The Contractor shall submit in duplicate, to the Engineer for his approval, drawings of the General Arrangement of the plant to be provided and such detailed drawings, other than shop drawings, as may be reasonably necessary.
Within fourteen days of the receipt of such drawings the Engineer shall singly his approval or otherwise of the same, and in the event of disapproving the drawing the Contractor shall further drawing for approval.
Within a reasonable period of the notification by the Engineer to the Contractor of his approval of such drawings, three sets, in ink or tracing cloth or ferrogalic prints mounted on cloth, the drawings as approved, shall be supplied to him by the Contractor and be signed by him and the Contractor respectively and be thereafter deemed to be the "Contract Drawings".
These drawings when so signed shall become the property of the purchaser and be deposited with the Engineer, and shall not be departed from in any way whatsoever except by the written permission of the Engineer or hereinafter provided.
In the event of the Contractor desiring to possess a signed set of drawings, he shall supply four sets instead of three sets and in this case the Engineer shall sign the fourth set and return the same to the Contractor.
The Contractor, if required by the Engineer shall supply in addition copies of any drawings other than shop drawings which may reasonable be required for the purpose of the Contract and may make a reasonable charge for such copies.
The Engineer or his duly authorised representatives, whose name shall have previously been communicated in writing to the Contractor shall have the right, at all reasonable times, to inspect, at the factory of the Contractor, drawings of any portion of the plant.
Mistake in drawings:
The Contractor shall be responsible for and shall pay for any alterations of the plant due to any discrepancies, errors or omission in the drawing and other particulars supplied by him, whether such drawing or particulars have been approved by the Engineer or not, provided that is such discrepancies, errors or omissions are due to inaccurate information or particulars furnished to the Contractor by the Engineer any alterations in the plant necessitated by reasons of such inaccurate information or particulars shall be paid for by the Purchaser.
If any dimensions figured upon a drawing or a plan differ from those obtained by scaling the drawing or plan the dimensions as figured upon the drawing or plan shall be taken as correct.
Subletting of contract:
The Contractor shall not, without consent in writing of the Engineer or Purchaser which shall not, be unreasonably withheld, assign or sublet this Contract any substantiate part there of other than for raw materials, for minor details or for any part of the plant of which makers are named in the Contract provided that any such consent shall not relieve the Contractor from any obligation, duty or responsibility under the contract.
Patent rights:
In the event of any demand being made or action being brought against the Purchaser for infringement or alleged Infringement of Letters patent, in respect of any plant, or thing used or supplied b the Contractor under this Contract or in respect of any method of using or working by the Purchaser of such plant, or thing the Contractor will intimacy the Purchaser against such claim or demand and all costs and expenses arising from or incurred by reason of such claim or demand PROVIDED THAT the Purchaser shall notify the Contractor immediately any claim is made and that the Contractor shall be at liberty, if he so desires, with the assistance of the Purchaser, if required but at all the Contractor's own expenses to conduct all negotiations for the settlement of the same or any litigation that may arise there from and PROVIDED THAT no such machine, plant or thing shall be used by the Purchaser for any purpose or in any manner other than that for which they have been supplied by the Contractor and specified under this Contract.
Quality of materials:
The plant shall be manufactured and constructed in the best and most substantial and most workmanlike manner and with materials of the best or of approved qualities for their respective uses.
Packing:
The Contractor shall be responsible for security, protecting and packing the plant so as to avoid damage under normal condition of transport.
Delivery and import license fee:
The cost of delivering the whole of the material f.o.r., at the railway stations specified shall be borne by the Contractor.
The Import Lenience fee for the Import of equipment or component part of raw materials, if required, shall be paid by the Contractor even when the Import License may have to be taken in the name of the Purchaser.
Power to vary or omit work:
No alteration, amendments, omission, additions, suspensions, or variations of the plant therein after referred to as "Variation" under the Contract as shown by the contract drawings or the Specifications shall be made by the Contractor except as directed in written by the Engineer but the Engineer shall have full power, subject to the provision hereinafter contained from time to time during the execution of the Contract by notice in writing to instruct the contractor to make such variations without prejudice to the Contract, and the Contractor, shall make such variation, and be bound by the same conditions as for as applicable as through the said variation occurred in the specification. If any suggested variation would, in the opinion of the Contractor if carried out prevent him from fulfilling any of his obligations or guarantees under the Contract, he shall notify the engineer thereof in writing and the Engineer shall decide forthwith whether or not the same shall be carried out and if the Engineer confirm his instructions, the Contractor's obligation and guarantees shall be modified to such an extent as may be justified. The Difference of cost, if any, occasioned by any such variations shall be added to, or deducted from, the contract price as the case may require. The amount of such difference, if any shall be ascertained and determined in accordance with he rates specified in the schedules of Prices so far as the same may be applicable and where the rates are not contained in the said Schedules, or are not applicable they shall be settled by the Engineer and Contractor jointly, as far as possible, before such variations are carried out. Provided that the Purchaser shall not become liable for the payment of any charge in respect of any such variations, unless the instructions for the performance of the same shall have been given in writing by the Engineer.
In the event of the Engineer requiring any variations, such reasonable and proper notice shall be given to the Contractor as will enable him to make his arrangements accordingly and in cases where goods or materials have already been prepared or any design drawings, or patterns have been made or work done that required to be allotted the Engineer shall allow such compensation in respect the as he shall consider reasonable.
Provided that no such variations, shall except with the consent in writing of the Contractor be such as will involve an increase or decrease of the total price payable under the Contract by more than 10 per cent thereof.
In every case in which the Contractor shall receive instructions from the Engineer for carrying out any work which either then or later will in the opinion of the contractor, involve a claim for additional payment, the Contractor, shall as soon as reasonably possible after the receipt of such instructions inform the Engineer of such for additional payment.
Negligence:
If the contractor shall neglect to manufacture or supply the lant with due diligence and expedition or shall refuse or neglect to comply with any reasonable orders given to him in writing by the Engineer in connection with the manufacture or supply, or shall contravene any provision of the Contract the Purchaser may given seven day's notice in writing to the contractor, to make good the failure neglect or contravention complained of and if the contractor shall fail to comply with the notice within a reasonable time from the date of service thereof in the case of a failure, neglect or contravention capable of being made good within that time, then and in such case if the Purchaser shall think fit it shall be lawful for him to take the manufacture or supply of plant wholly, or in part, out of the contractor's hand and give it to another person on contract at a reasonable price and the Purchaser shall be entitled to retain and apply any balance which may be otherwise due on the Contract by him to the Contractor or such part there of as may be necessary to the payment of the cost of manufacture or supply of such plant as aforesaid.
Death Bankruptcy to :
If the contractor shall die or commit any act of Bankruptcy, or being a corporation commence to be wound up except for reconstruction purposes or carry on its business under a Receiver, the executors, successors, or other representatives in law of the estate to the contractor or any such receiver, liquidator, or any person in whom the contract may become vested shall forthwith give notice thereof in writing to the purchaser and shall for one month, during which he shall take all reasonable steps to prevent stoppage of the manufacture of plant have the option of carrying out the contract subject to his or their providing such guarantee as may be required by Purchaser, but not exceeding the value of the plant, for the time being remaining unexecuted. In the event of stoppage of the manufacture of the plant the period of the option under this clause shall be fourteen days only provided that should the above option not be exercised, the contract may be determined by the Purchaser by notice in writing to the contractor, and the Purchaser may exercise the same power which he could exercise and will have the same rights which he would have under the last preceding clause if the work had been taken out of the contractor's hands under the clause.
Inspection and testing:
The Engineer and his duly authorized representatives, shall have at all reasonable time access to the contractor's premises, and shall have the power at all reasonable times to in spect and examine the materials and workmanship of the plant during its manufacture there and if part of the plant is being manufactured on other premises the contractor shall obtain for the Engineer and for his duly authorised representatives permission to inspect it as if the plant manufactured on the contractor's own premises.
The Engineer shall on giving seven day's notice in writing to the contractor setting out any grounds of objections which he may have in respect of the work be at liberty to reject all or any plant or workmanship connected with such work which, in his opinion, are not in accordance with the contract or are in his opinion defective for any reason whatsoever. Provided that if such notice be not sent to the contractor within reasonable time after the Engineer he shall not be entitled to reject the said plant workmanship on such grounds. Unless specifically provided otherwise all tests shall be made at contractor's work before shipmen.
The contractor shall, if required give the Engineer notice of any material being ready for testing and Engineer, or his said representative if so desired, shall on giving twenty-four hour's previous notice in writing to the contractor attend at the contractor's premises within seven days of the date on which the material is notified as being ready, failing which visit the contractor may proceed with the tests, which shall be deemed to have been made in Engineer's presence and he shall forthwith forward to the Engineer duly certified copies of the tests in duplicate.
Test at contractor's Premises:
In all cases where the contractor provides for tests, whether at the premises of the contractor or of any sub-contractor the contractor, except where otherwise specified shall provide free of charge such labour, materials, electricity fuel water, stores apparatus, plant in accordance with the contract and shall give facilities to the Engineer or to his authorized representative to accomplish such testing.
If special tests other than those specified in the contract are required they shall be paid for by the Purchaser as "Variations" under clause II.
When the tests have been satisfactory completed at the contractor's works the Engineer shall issue a certificate to that effect.
Test on site:
In all cases where the contract provides for tests on the site, the purchaser, except otherwise specified, shall provide, free of charge, such labour, materials, electricity, fuel water, stores, apparatus and instruments as may be requisite from time to time and as may reasonably be demanded, efficiently to carry out such tests of the plant or workmanship in accordance with the contract.
In the cases of contractor requiring electricity for test on site such electricity shall be supplied to the contractor in the most convenient form available.
Delivery of plant:
The plant or material shall not be forwarded until shipping/dispatch instructions shall have been given to the contractor.
Notification of delivery or dispatch in regard to each and every consignment shall be made to the purchaser immediately after dispatch or delivery. The Supplier shall further supply to the Consignee a priced invoice and packing account of all stores delivered or dispatched by him. All packages, containers, bundles and loose materials forming part of each and every consignment shall be described full in the packing account, and full details of the contents of packages and quantity of materials shall be given to enable to consignee check the stores on arrival at destination.
Engineer's Supervision:
The manufacture and supply of plant shall be carried out under the direction and to the reasonable satisfaction of the Engineer.
Engineer's decision:
In respect of all matters which are left to the decision of the Engineer including the granting or with holding of certificates the Engineer shall if required to do so by the Contractor, give in writing a decision thereon, and his reasons for such decision. If the decision is not accepted by the contractor the matter shall at the request of the contractor be referred to arbitration under the provision for arbitration hereinafter contained, but subject to the right of reference to arbitration such decision shall be final and binding on the contractor.
Liability for accident and damage:
The contractor shall be responsible for loss, damage or depreciation to goods up to delivery at site.
Replacement of defective plant or materials:
If during the progress of manufacture of supply or plant the Engineer shall decide and notify in writing to the contractor that the contractor has manufactured any plant or part of plant unsound or imperfect, or has supplied any plant inferior in quality to that specified, the contractor on receiving details of such defect or deficiency shall at his own expense, within such time that may be reasonably necessary for the purpose proceed to after reconstruct or remove such plant or part of plant, or supply fresh materials up to the standard of the specification and in case the contractor shall fail to do so, the Purchaser may, on giving the contractor seven day's notice in writing of his intention to do so proceed to after reconstruct or remove such plant or part of plant or supply of all such materials at the contractor cost provided that nothing in this clause shall be deemed to deprive the Purchaser of or affect any rights under the Contract which he may otherwise have in respect of such defects or deficiencies.
Deduction from contract price:
All costs, damages of expense which the Purchaser may have paid for which under the contract the contractor is liable may be deducted by the Purchaser from any money due or which may become due by him to the contractor under this contract, or may be recovered by suit or otherwise from the contractor.
Any sum of money due and payable to the contractor (including security deposit returnable to him) under this contract may be appropriated by the Purchaser and set off against any claim of the Purchaser for the payment of a sum of money arising out of or under any other contract made by the contractor, with the Purchaser.
Terms of payment:
Subject to any deduction which the Purchaser may be authorised to make under the contract, or subject to any additions or deductions provided for under clause 11. the Contractor shall on the certificate of the Engineer be entitled to payment as follows:
Ninety percent of the f.o.r. contract value of the plant in rupees on receipt by the purchaser of the contractor's invoice giving the number and date of railway receipt covering the dispatch of the plant from the Indian port and of the advice note giving case number and contents, together with a certificate by the contractor to the effect that the plant detailed in the said advice note has actually been dispatched under the says railway receipt and that the contract value of the said plant so dispatched is not less than the amount entered in the invoice.
Ten percent of the f.o.r. contract value on presentation of the contractor's invoice when each commercially useable section of the plant is completed and the last portion of such section has been dispatched and the whole material has been delivered at the place fixed for delivery and checked at the site of the work within one month of such delivery, whichever is earlier.
Provided that each of the payments under this clause shall be due on the last day of the month in which the invoice for the amount due together with necessary documents is received by the Purchaser:
Provided also that the Purchaser shall not be bound to make any payment under sub-clause (a) unless the amount of such payment represents at least 8 percent of the total contract value of the plant.
If at the time at which the last installment becomes payable there are minor defects in the plant which are not of such importance as to affect the full commercial use of the plant, then the Purchaser shall be entitled to retain such part of the installments as represents the cost of making good such minor defects and any sum so retained shall, subject to the provision of clause 30, become due upon such minor defects being made good.
If the Purchaser desires that the plant or any portion should not be dispatched by the Contractor when it is due for dispatch, the Contractor shall for such plant or portion at his works and be responsible for all risk. For such storage the Purchaser shall pay to the contractor at a rate to be mutually agreed upon between the parties, but not exceeding 5s (five shillings) per ton per week payable quarterly plus interest @ 1 percent per annum above the current rate of the State Bank of India, on 80% of the contract value of the plant or portion thereof so stored for the period from the date on which the said plant or portion becomes due and is ready for shipment up to the date on which it is actually shipped.
Provisional sums:
In any case where the contract price includes a provisional sum to be provided by the contractor for meeting the expenses of extra work or for work to be done or material to be supplied by a sub-contractor such sum shall be expended or used, either wholly or in part or be not used at the discretion of the Engineer and entirely as he may decide and direct. If no part or only a part thereof be used then the whole or the part not used, as the case may be shall be deducted from the contract price. If the sum used is more than such provisional sum the contractor shall pay the excess. In the case of material supplied or work done by a sub-contractor, the total of the net sum paid to the sub Contractor on account of such materials or works and a sum equal to 10% of such net sums allowed as contractor's profit shall be deemed to be the sum used Non of the work or articles to which such sum of money refers shall be done or purchased without the written order of the Engineer. The Contractor shall allow the subcontractors every facility for the supply of materials or execution, of their several works simultaneously with his own, and shall within fourteen days after the Engineer has requested him in writing to do so pay the dues of such sub-contractors on account of such materials or works: PR VIDED ALWAYS that the cont actor shall have no responsibility with regard to such works or articles unless he shall have previously approved the sub-contractor and/or the material or plant to be supplies.
Certificate of Engineer:
Every application to the Engineer for a certificate must be accompanied by a detailed invoice (in duplicate) setting forth in order of the Schedule of Prices, particulars of the plant supplied and the certificates as to such plant as in the reasonable opinion of the Engineer, in accordance with the contract shall be issued within fourteen days of the application for the same.
The Engineer may, by any certificate make any correction or modification in any previous certificate which shall have been issued by him any payments shall be regulated and adjusted accordingly.
Certificate not to effect right of the Purchaser or Contractor:
No certificate of the Engineer on account nor any sum paid on account by the Purchaser, nor any extension of term granted under clause 26 shall affect or prejudice the rights of the Purchser, against the Contractor either under this Agreement or under the law, or relieve the Contractor, of his obligations for the due Performance of the Contract or be interpreted as approval of the plant manufactured or supplied, and no certificate of the Engineer shall create liability in the Purchaser to pay for any alteration amendments, variations or additions not ordered in writing by the Engineer, or absolve the Contractor of his liability for the payment of damages whether due, ascertained or certified or not or of any such sum against the payment of which he is bound to indemnify the Purchser nor shall any such certificate nor the acceptance by him of any sum paid on account or otherwise affect or prejudice the rights of the contractor against the Purchaser either under this Agreement or under the law.
Suspension of works:
The Purchaser shall pay to the Contractor all reasonable expenses incurred by the Contractor by reason of suspension of the manufacture of plant or delay in shipment by order in writing of the Purchaser or the Engineer unless such suspension or delay shall be due to some default on the part of the Contractor or Sub-Contractor.
Extension of time for completion:
The time given to the Contractor for dispatch or delivery shall be reckoned from the date of receipt by the Contractor of the order, together with all necessary information and drawings, to enable the work to be put in hand.
In all cases in which progress shall be delayed by strikes lockouts, fire accidents defective materials delay in approval of drawings or any cause whatsoever beyond the reasonable control of the Contractor, and whether such delays or impediment shall occur before or after the time or extended time, for dispatch or delivery, a reasonable extension of time shall be granted.
Price reduction:
If the Contractor shall fail in the due performance of his Contract with in the time fixed by the contract or any extension thereof, the contractor agree to accept a reduction of the Contract price by half percent per week reckoned on the contract value of such portion only of the plant as cannot in consequences of the delay be used commercially and efficiently during each week between the appointed or extended time, as the case may be and actual time of acceptance under clause 29, and such reduction shall be in full satisfaction of the Contracor's liability for delay but shall not inany case exceed 10 percent of the contract value of such portion of the plant.
Rejection of defective plant:
If the completed plant or any portion thereof, before it is taken over under clause 29 be found to be defective, or fails to fulfill the requirements of the contract the Engineer shall give the Contractor notice setting forth particulars of defects or failure, and the Contractor shall forthwith make the defective plant good, or alter the same to make it comply with the requirements of Contract. If the Contractor fails to do so within a reasonable time the Purchaser may reject and replace, at the cost of the Contractor, the whole or any portion of the plant as the case may be which is defective or fails to fulfill the requirements of the Contract. Such replacement shall be carried by the Purchaser within a reasonable time and a reasonable price, and where reasonably possible to the same specification and under competitive condition. In case of such replacement by the purchaser the Contractor shall be liable to pay to the Purchaser the extra cost if any, of such replacement delivered and/or erected as provided for in the original Contract, such extra cost being the ascertained difference between the price paid by the purchaser under the provisions above mentioned for such replacement and the Contract price for the plant so replaced and also to repay any sum paid by the purchaser to the Contractor in respect of such defective plant. If the purchaser does not so replace the rejected plant within a reasonable time, the Contractor shall be liable only to repay to the Purchaser all moneys paid by the Purchaser to him in respect of such plant.
In the event of such rejection, the Purchaser shall be entitled to the use of the plant in a reasonable and proper manner for a time reasonably sufficient to enable him to obtain other replacement plant. During the period the rejected plant is used commercially the Contractor shall be entitled to reasonable sum as payment for such use.
Taking over:
Where the specification calls for performances test before shipment and these have been successfully carried out, the plant shall be accepted and taken over and the Engineer shall notify the Contractor to that effect. When the specification calls for tests on site the plant shall be taken over immediately after such tests have been satisfactorily carried out and the Engineer shall notify the Contractor to that effect.
Such notification shall not be unreasonably withheld nor shall the Engineer delay giving such notification on account of minor omission and defects which does not necessarily delay shipment nor affect the commercial use of the plant without any serious risk. PROVIDED ALWAYS that the Contractor undertakes to make good such omissions and defects at the earliest moment.
Maintenance:
For period of 12 (twelve) calendar months commencing immediately upon the setting to work of the plant or 18 months from the date of receipt of equipment by the Purchaser at site whichever is earlier called the Maintenance period" the Contractor shall remain liable to replace any defective parts that may develop in plant of his own manufacture or those of his sub-contractors approved under clause 6, under conditions provided for by the contract under proper use and arising, solely from design, materials or workmanship PROVIDED ALWAYS that such defective parts as are not repairable at site and are not essential in the meantime to the maintenance in commercial use of the plant are promptly returned to the Contractor's work at the expense of the Contractor unless otherwise arranged.
If it becomes necessary for the Contractor to replace or renew any defective parts of the plant under this clause, the provisions of the first paragraph of this clause shall apply to the parts of the plant so replaced or removed until the expiration of six months from the date of such replacement or renewal or until the end of the above mentioned period of twelve months whichever may be the later.
If any defects be not remedied within a reasonable time the Purchaser may proceed to do the work at the Contractor's risk and expense, but without prejudice to any other right which the Purchaser may have against the Contractor in respect of such defects.
The repaired or new parts will be delivered in accordance with clause 10. The Contractor shall bear reasonable cost of minor repairs carried out on his behalf at site.
At the end of "The Maintenance Period" the Contractor's liability shall cease. In respect of goods not covered by the first paragraph of this clause, the Purchaser shall be entitled to the benefit of any guarantee given to the Contractor by the original supplier or manufacturer of such goods.
Arbitration:
If any dispute, difference or controversy shall at any time arise between the Contractor on the one hand and the UP Power Corporation Ltd. and the Engineer of the contract on the other touching the contract or as to the true construction, meaning and intent or any part or condition of the same, or as the manner of execution or as to the quality or description of or payment for the same, or as to the true intent, meaning, interpretation, construction or effect of the clauses of the contract, specifications or drawings or any of them, or as to any thing to be done committed or suffered in pursuance of the contract of specifications or as to the mode of carrying the contract, into effect, or as to the breach or alleged breach of the contract or as to any claims on account to such breach or alleged breach or as to obviating or compensating for the commission of any such breach or as to any other matter or thing whatsoever connected with or arising out of the contract and whether before or during the progress or after the completion of the contract, such question, difference or dispute shall be referred for adjudication to the chairman, UP State Electricity Board or to any other person nominated by him in this behalf and his decision un writing shall be final Landing and conclusive in case of refusal/neglect by such nominee. C.M.D. U.P. Power Corporation Ltd. may nominate another person in his place. This submission shall be deemed to be a submission to arbitration within the meaning of the India Arbitration Act 1940 or any statutory modification thereof. The arbitrator may from time to time with consent of the parties enlarge the time for making and publishing the award.
Upon every or any such reference, the cost of an incidental to the reference and award respectively shall be in discretion of the arbitrator who shall be competent to determine the amount thereof direct the same to be taxed as between solicitor and client or as between party and to direct by whom and to whom and in what manner the same shall be burns and paid.
Work under the contract shall if reasonably possible, continue during the Arbitration proceedings and no payments due or payable by the UPPCL shall be withheld on account of such proceedings.
Construction of contract:
The contract shall in all respect be construed and operated as a Contract as defined in the Indian Contract Act, 1872, and all payments there under shall be made in rupees unless otherwise specified.
Marginal Note:
The marginal note to any clause of this Contract shall not affect or control the construction of such clause.
FORM OF AGREEMENT
(BEFERRED TO IN CLAUSE -3)
This Agreement made on the --------------------------- day of -------------198-------------Between ---------------- (hereinafter referred to as the Contractor) of the one part AND the UPPCL (hereinafter called Purchaser) of the other part
WHEREAS the purchaser is about to erect and maintain the ---------------------------------------------- (hereinafter called the works) and for the purpose requires the plants and machinery mentioned and specified in certain general conditions, Specifications Schedules, Drawings, form of tender covering letter and schedule of price which, for the purpose of identification has been signed by -------------------------------- on behalf of the Contractor and -------------------------- (the engineer of the Purchaser) on behalf of the Purchaser of which are seemed to form part of this contract as through separately set out herein and are included in the expression Contract" whenever herein used.
AND WHEREAS the Purchaser has accepted the tender of the Contractor for the supply and delivery of the said plant and machinery for the sum of -------------------------------- upon the terms and subject to the Conditions hereinafter mentioned.
NOW THESE PRESENT WITNESSES and the parties here to hereby agree and declare as follows that is to say in consideration of the payment to be made to the Contractor by the purchaser as thereafter mentioned the Contractor shall and will fully provide the said plant and machinery for the said works on the terms and conditions mentioned in the Contract.
AND in consideration of the due provisions of the said plant and machinery by the Contractor and due performance of this part of the contract, the purchaser does hereby for himself his successors or assigns convenant with the Contractor that he (the Purchaser) his successor or assigns will pay to the contractor the said sum of ----------------------------- or such other sum as may become payable to the Contractor under the provision of the Contract such payments to be made at such time and in such manner as is provided by this contract.
IN WITNESS WHERE OF the Parties here to have signed this Deed here under on the dates respectively mentioned a against the signature of each.
| Signed | Signed |
| (for and on behalf of the Purchaser) | (Contractor) |
| (Date) | (Date) |
| In the presence of | In the presence of |
| (Date) | (Date) |
| (Date) | (Date) |
PERFORMA OF GUARANTEE BOND FOR SECURITY DEPOSIT
(To be used by approved Scheduled Banks)
In consideration of the U P. Power Corporation Ltd, Lucknow (hereinafter called UPPCL) having agreed to exempt --------------- (hereinafter called "The Contractors") from the demand the terms and condition of Agreement dated ............. made between ------------------------- and ---------------------------- for ------------------------ (hereinafter called the said Agreement) of security deposit for the due fulfillment by the said Contractors of the terms and conditions contained in the said Agreement, on production of a Bank Guarantee for Rs. ----------------- (Rupees---------------------only) We ----------------- Bank Ltd. (hereinafter referred as the Bank) do hereby undertake to pay to the Board an Amount not exceeding Rs. --------------------- against any loss of or damage caused to or suffered or would be caused to or suffered by the Board by reasons of any breach by the said Contractors of any of the terms of conditions contained in the said Agreement.
We ------------------------- Bank Ltd. do hereby under take to pay the amount due and payable under this guarantee without any demur merely on demand from the Board stating the amount claims is due by way of use or damage caused to or would be caused to or suffered by the Board by reason of any breach by the said contractor of any of the teems or conditions contained in the said Agreement or by reason of the Contractors failure to perform the said Agreement. Any such, demand made on the bank shall be conclusive as regards the amount due and payable by the Bank under this guarantee However, our liability under this guarantee shall be restricted to an amount not exceeding Rs. ----------
We ----------------------- Bank Ltd. further agree that the guarantee herein contained shall remain in full force, and effect during the period that would be taken for the performance of the said agreement and that it shall continue to be enforceable till all the dues of Board under or by virtue of the said agreement have been fully paid and its claims satisfied or discharged or till the Board or their only authorised officer certified that the terms and conditions of the said agreement have been fully and properly carried out by the said Contractors and accordingly discharges the guarantee. Unless a demand or claim under this guarantee is made on us in writing on or before ------------------------- we shall be discharged from all liability under this guarantee there after.
We----------------------Bank Ltd further agree with the Board that the Board shall have the fullest liberty without affecting in any manner or obligations hereunder to vary any of the terms and conditions of the said agreement or to extend time of performance by the said Contractors from time to time or to postpone for any time or from time to time any of the powers exercisable by the Board against the said Contractors and to for enforce any of the terms and conditions relating to the said Agreement and we shall not be relieved from our liability by reason of any such variation extension or extensions being granted to the said Contractors or for any forbearance act or commission on the part of the Board or any indulgence by the Board to the said Contractors or by any such matter or thing whatsoever which under the law would but for this provision have effect.
We ------------------------- Bank Ltd. lastly undertake not to revoke this guarantee during its currency except with the previous consent of the Board in writing.
Not withstanding any thing contained above the liability of the guarantor hereunder is restricted to the said sum of Rs.------------------------- and this guarantee shall expire on the -----------------------day------------------------- of------------------------- 19 -------- Unless a claim under the guarantee is filled with the guarantor within six months of such date, all claim shall lapse and the guarantor shall be discharged from the guarantee.
Dated the -------------------------day of -------------------------19
For ------------------------- Bank Ltd.
PERFORMA FOR PERFORMANCE BANK GUARANTEE
U.P. POWER CORPORATION LIMITED
THIS DEED OF GUARANTEE made on the -------------------------day of ------------------------- 19. by the -------------------------(hereinafter called the Guarantor) of one part IN FAVOUR of the U.P., Power Corporation Ltd. (hereinafter called the Purchaser) of the other part.
WHEREAS in accordance with the contract agreement dated the -------------------------day of -------------------------19 (hereinafter called the said Contract) entered into between the Purchaser & Messers ------------------------- a company within the meaning of the Companies Act and having its registered office at ------------------------- (hereinafter called the Contractor) the Contractor agreed to supply to the Purchaser the ------------------------- as provided in the said Contract.
AND WHEREAS the payment terms under the said Contractor provide that in order to take 100% payment of the Contract value the Contractor shall furnish to the Purchaser a Bank Guarantee in the sum of 10% value of each consignment dispatched valid for --------------------------------------------------
AND WHEREAS instead of furnishing separate guarantee as after said the Contractor wishes to furnish one guarantee in the sum of 10% value of the Contract valid for ------------------------- and reckoned from the date ---------------------------
NOW THIS DEED WITNESSES AS FOLLOWS
In consideration of the premises the Guarantor hereby undertake that the Contractor shall duly supply the aforesaid material of the correct quantity and strictly in accordance with the said Contract failing which the Guarantor shall pay to the Purchaser on demand such amount or amounts as the Guarantor may be called upon to pay to the maximum aggregate of Rs. ------------------------- being 10% of the Contract value.
The Guarantor shall pay to the Purchaser on demand the sum under clause 1 above without demur and without requiring the Purchaser to invoke any legal remedy that may be available to it compel the Guarantor to pay the same or to compel such performance by the Contractor, Provided that where the Guarantor considers the demand of the Purchaser unjustified shall never the less pay the same though under protest to the Purchaser and shall not with hold payment on that account.
This guarantee shall come into force from the date hereof and shall remain valid for ------------------------- calendar months from the date of the -------------------------of the last consignment of goods dispatched which date of dispatch according to contract is the ------------------------- day of -------------------------. If however the period of the contract's for any reason extended thereby extending the valid date, and upon such extension, it the contractor fails to furnish a fresh or renewed Bank Guarantee for the extended period Guarantor shall pay to the Purchaser the said sum of Rs.------------------------- or such lesser sum as the Purchaser may demand.
The guarantee herein contained shall not be affected by any change in the Constitution of the Guarantor or of the Contractors.
Any account settled between the Contractor and the Purchaser shall be conclusive evidence against the Guarantor of the amount due and shall not be questioned by the Guarantor.
The neglect or forbearance of the Purchaser in enforcement of payment of any moneys the payment whereof is intended to be hereby secured or the giving of time by the Purchaser for the payment thereof shall in no way relieve the Guarantor of its liability under this deed.
The Purchaser and the Contractor will be at liberty to carry out any modifications in the said Contract during the terms of the said Contract and any extension thereof, notice of which modification to the Guarantor is hereby waved.
The expression The Purchaser and The Guarantor and The Contractor shall unless there be anything repugnant to the subject or context include their respective successors and assigns.
Notwithstanding any thing contained above the liability of the Guarantor hereunder is restricted to the said sum of Rs.------------------------- and this guarantee shall expire on the ------------------------- day of ------------------------- unless claim under the guarantee is filed within six months of such date, all claims shall lapse and the Guarantor shall be discharged from the Guarantee.
IN WITNESS HEREOF
For and on behalf of the Guarantor has signed this deed on the day and year first above written.
Witness :
| 1. | Signed by |
| 2. | For and on behalf of the |
| Guarantor |
FORM OF BANK GUARANTEE
(For depositing earnest money in case the amount for deposit exceeds Rs. 5,000)
To ,
UPPCL
Lucknow
Sir,
WHEREAS, Messer ------------------------- a company incorporated under the Indian Companies Act its registered office at -------------------------son of ------------------------- resident of -------------------------carrying on business under the firm's name and style of Messer ------------------------- at -------------------------son of ------------------------- resident of -------------------------at -------------------------Sri------------------------- son of -------------------------resident of -------------------------Sri -------------------------son of ------------------------- resident of -------------------------Sri ------------------------- son of -------------------------resident of --------------- Sri-------------------------son of ------------------------- resident of -------------------------partners carrying on business under the firm's name and style of Messer -------------------------at-------------------------which is an unregistered partnership (hereinafter called The Tender) has/have in response to your Tender Notice against specification number--------- for -------------offered to supply and/or execute the works as contained in the Tender's letter no-------------------------
AND WHEREAS the Tender is required to furnish you a bank guarantee for the sum of Rs.-------------------------as earnest money against the tender's offer as aforesaid.
AND WHEREAS we -------------------------------------------------- name of the Bank have at the request of the Tender agree to give you his guarantee as hereinafter contained.
NOW THEREFORE in consideration of the premises we the under signed, hereby covenant that the aforesaid tender of the Tenderer shall remain open for acceptance by you during the period of validity as mentioned in the tender or any extension there of as you and the Tenderer may subsequently agree and if the Tenderer shall, for any reason back out, whether expressly or impliedly, from his said tender during the period of its validity or any extension thereof as aforesaid we hereby guarantee to you the payment of the sum of Rs.-------------------------on demand, notwithstanding the existence of any dispute between the UP Power Corporation Ltd, and the Tenderer in this regard and we hereby further agree as follows:
That you may without affecting this guarantee grant time and other indulgence to or negotiate further with the Tenderer in regard to the conditions contained in the said tender and hereby modify these conditions or add there to any further conditions as may be mutually agreed upon between you and the Tenderer.
That the guarantee herein before contained shall not be affected by any change in the constitution of our Bank or in the constitution of the Tenderer.
That an account settled between you and the Tenderer shall be conclusive evidence against us of the amount due here under and shall not be questioned by us.
That this guarantee commences from the date hereof and shall remain in force till the Tenderer if his tender is accepted by you, furnishes the security as required under the said specifications and executes a formal agreement as therein provided or (till four months after the period of validity) or the extended period of validity as the case may be of the tender whichever is earlier.
That the suppressions the Tenderer and The Bank and The UP Power Corporation Ltd. herein used shall unless such inter predation is repugnant to the subject or context, include their respective successors and assigns.
| Yours Faithfully |