FIDIC,
CLIENT/CONSULTANT MODEL
SERVICES AGREEMENT
(“White Book”)
Third Edition, 1998
CONTENTS
AGREEMENT
GENERAL
CONDITIONS
DEFINITIONS AND INTERPRETATION
1. Definitions
2. Interpretation
OBLIGATIONS OF THE CONSULTANT
3. Scope
of Services
4. Normal,
Additional and Exceptional Services
5. Duty
of Care and Exercise of Authority
6. Client's
Property
OBLIGATIONS OF THE CLIENT
7. Information
8. Decisions
9. Assistance
10. Equipment
and Facilities
11. Client's
Personnel
12. Services
of Others
PERSONNEL
13. Supply
of Personnel
14. Representatives
15. Changes
in Personnel
LIABILITY AND INSURANCE
16. Liability
between the Parties
16.1 Liability of the Consultant
16.2 Liability of the Client
16.3 Compensation
17. Duration
of Liability
18. Limit
of Compensation and Indemnity
18.1 Limit of Compensation
18.2 Indemnity
18.3 Exceptions
19. Insurance
for Liability and Indemnity
20. Insurance
of Client's Property
COMMENCEMENT, COMPLETION, ALTERATION AND TERMINATION OF THE AGREEMENT
21. Agreement
Effective
22. Commencement
and Completion
23. Variation
24. Further
Proposals
25. Delays
26. Changed
Circumstances
27. Abandonment,
Suspension or Termination
27.1 By Notice of the Client
27.2 By Notice of the Consultant
28. Exceptional
Services
29. Rights
and Liabilities of Parties
PAYMENT
30. Payment
to the Consultant
31. Time
for Payment
32. Currency
of Payment
33. Third
Party Charges on the Consultant
34. Disputed
Invoices
35. Independent
Audit
GENERAL
PROVISIONS
36. Languages and Law
37. Changes in Legislation
39. Copyright
40. Conflict
of Interest/Corruption and Fraud
41. Notices
42. Publication
SETTLEMENT OF DISPUTES
43. Amicable
Dispute Resolution
43.1 Attempt to Resolve
43.2 Referral to Mediator
43.3 Appointment of Mediator
43.4 Agreement of Program
43.5 Written Agreement to be Binding
43.6 Non-binding Opinion
43.7 Costs of Mediation
43.8 Failure of Mediation
44. Arbitration
PARTICULAR
CONDITIONS
A. References
from Clauses in the General Conditions
B. Additional
Clauses
APPENDICES
A. Scope
of Services
B. Personnel, Equipment, Facilities and
Services of Others to be Provided by the Client
C. Remuneration
and Payment
AGREEMENT
This Agreement made the
______________ day of ___________, ____ between
__________________________________________________________________
of
________________________________________________________________
(hereinafter
called "the Client") of the one part
and
_______________________________________________________________
of
________________________________________________________________
(hereinafter called "the
Consultant") of the other part.
WHEREAS
the Client desires that certain Services should be performed by the Consultant,
namely
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
and
has accepted a proposal by the Consultant for the performance of such Services.
NOW
THIS AGREEMENT WITNESSETH AS FOLLOWS
1. In this Agreement words and expressions
shall have the same meanings as are respectively assigned to them in the
Conditions of the Client/Consultant Model Services Agreement hereinafter
referred to.
2. The following documents shall be deemed
to form and be read and construed as part of this Agreement, namely:
(a) The
Letter of Acceptance;
(b) The Conditions of the Client/Consultant
Model Services Agreement (General Conditions and Particular Conditions)
(c) The
Appendices, namely:
Appendix A - Scope
of Services
Appendix B - Personnel,
Equipment, Facilities and Services of Others to be Provided by the Client
Appendix C - Remuneration
and Payment
3. In consideration of the payments to be
made by the Client to the Consultant as hereinafter mentioned the Consultant
hereby agrees with the Client to perform the Services in conformity with the
provisions of the Agreement.
4. The Client hereby agrees to pay the
Consultant in consideration of the performance of the Services such amounts as
may become payable under the provisions of the Agreement at the times and in
the manner prescribed by the Agreement.
In
Witness whereof the parties hereto have caused this Agreement to be
executed the day and year first before written in accordance with their
respective laws.
Authorized signature(s) of Client
___________________________________________________________
In the presence of:
Name:
______________________________________________________
Signature:
____________________________________________________
Address:
_____________________________________________________
Authorized signature(s) of Consultant
___________________________________________________________
In the presence of:
Name:
______________________________________________________
Signature:
____________________________________________________
Address: _____________________________________________________
CONDITIONS
OF THE CLIENT/CONSULTANT
MODEL
SERVICES AGREEMENT
GENERAL CONDITIONS
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS
The following words and expressions shall have the
meanings assigned to them except where the context otherwise requires:
(i) “Project” means the project named in
the Particular Conditions for which the Works are to be provided.
(ii) “Services” means the services to be
performed by the Consultant in accordance with the Agreement and comprise Normal
Services, Additional Services and Exceptional Services.
(iii) “Works” means the permanent works to be
executed (including the goods and equipment to be supplied to the Client) for
the achievement of the Project.
(iv) “Client” means the party named in the
Agreement, who employs the Consultant, and legal successors to the Client and
permitted assignees.
(v) “Consultant” means the party named in
the Agreement, who is employed as an independent professional firm by the
Client to perform the Services, and legal successors to the Consultant and
permitted assignees.
(vi) “party” and “parties” means the Client
and the Consultant and “third party” means any other person or entity as the
context requires.
(vii) “Agreement” means the Conditions
comprising the Conditions of the Client/Consultant Model Services Agreement
(General Conditions and Particular Conditions) together with Appendix A (Scope
of Services), Appendix B (Personnel, Equipment, Facilities and Services of
Others to be Provided by the Client), Appendix C (Remuneration and Payment),
Letter of Acceptance and Formal Agreement if completed, or otherwise as
specified in the Particular Conditions.
(viii) “day” means the period between any one
midnight and the next.
(ix) “month” means a period of one month
according to the Gregorian calendar commencing with any day of the month.
(x) “Local Currency” (LC) means the currency
of the country where the Project is located and “Foreign Currency” (FC) means
any other currency.
(xi) “Agreed compensation” means additional
sums as defined in the Particular Conditions which are payable under the
Agreement.
2. INTERPRETATION
(i) The
headings in the Agreement shall not be used in its interpretation.
(ii) The singular includes the plural, the
masculine includes the feminine, and vice-versa where the context requires.
(iii) If there is conflict between provisions
of the Agreement, the last to be written chronologically shall prevail, unless
otherwise specified in the Particular Conditions.
OBLIGATIONS OF THE CONSULTANT
3. SCOPE OF SERVICES
The Consultant shall perform Services relating to the
Project. The Scope of the Services is stated in Appendix A.
4. NORMAL,
ADDITIONAL AND EXCEPTIONAL SERVICES
(i) Normal Services are those described as
such in Articles A.2 and A.3 of Appendix A.
(ii) Additional Services are those described
as such in Appendix A or which by written agreement of the parties are
otherwise additional to Normal Services.
(iii) Exceptional Services are those which are
not Normal or Additional Services but which are necessarily performed by the
Consultant in accordance with Clause 28.
5. DUTY
OF CARE AND EXERCISE OF AUTHORITY
(i) The Consultant shall exercise
reasonable skill, care and diligence in the performance of his obligations
under the Agreement.
(ii) Where the Services include the exercise
of powers or performance of duties authorized or required by the terms of a
contract between the Client and any third party, the Consultant shall:
(a) act in accordance with the contract
provided that the details of such powers and duties are acceptable to him where
they are not described in Appendix A.
(b) if authorized to certify, decide or
exercise discretion, do so fairly between the Client and third party not as an
arbitrator but as an independent professional acts by his skill and judgment.
(c) if so authorized vary the obligations
of any third party, subject to obtaining the prior approval of the Client to
any variation which can have an important effect on costs or quality or time
(except in any emergency when the Consultant shall inform the Client as soon as
practicable).
6. CLIENT'S PROPERTY
Anything supplied by or paid for by the Client for the
use of the Consultant shall be the property of the Client and where practicable
shall be so marked. When the Services are completed or terminated, the
Consultant shall furnish inventories to the Client of what has not been
consumed in the performance of the Services and shall deliver it as directed by
the Client. Such delivery shall be
regarded as an Additional Service.
OBLIGATIONS OF THE CLIENT
7. INFORMATION
The Client shall so as not to delay the Services and
within a reasonable time give to the Consultant free of cost all information in
his power to obtain which may pertain to the Services.
8. DECISIONS
On all matters properly referred to him in writing by the
Consultant the Client shall give his decision in writing so as not to delay the
Services and within a reasonable time.
9. ASSISTANCE
In the country of the Project and in respect of the
Consultant, his personnel and dependents, as the case may be, the Client shall
do all in his power to assist in:
(i) the provision of documents necessary
for entry, residence, work and exit;
(ii) providing unobstructed access wherever
it is required for the Services;
(iii) import, export and custom clearance of
personal effects and of goods required for the Services;
(iv) their repatriation in emergencies;
(v) the provision of the authorities
necessary to permit the import of foreign currency by the Consultant for the
Services and by his personnel for their personal use and to permit the export
of money earned in the performance of the Services;
(vi) providing access to other organizations
for collection of information which is to be obtained by the Consultant.
10. EQUIPMENT AND FACILITIES
The Client shall make available, free of cost, to the
Consultant for the purpose of the Services the equipment and facilities
described in Appendix B.
11. CLIENT’S
PERSONNEL
In consultation with the Consultant, the Client shall at
his cost arrange for the selection and provision of personnel in his employment
to the Consultant in accordance with Appendix B. In connection with the Services such
personnel shall take instructions only from the Consultant.
12. SERVICES
OF OTHERS
The Client shall at his cost arrange for the provision of
services from others as described in Appendix B, and the Consultant shall
co-operate with the suppliers of such services but shall not be responsible for
them or their performance.
PERSONNEL
13. SUPPLY
OF PERSONNEL
The personnel who are sent by the Consultant to work in
the country of the Project shall have been physically examined and found fit
for their assignments, and their qualifications shall be acceptable to the
Client.
The personnel to be supplied by the Client in
accordance with Clause 11 shall be acceptable to the Consultant.
If the Client cannot supply Client’s personnel
or services of others for which he is responsible and it is agreed to be
necessary for the satisfactory performance of the Services, the Consultant
shall arrange for its supply as an Additional Service.
14. REPRESENTATIVES
For the administration of the Agreement, each party shall
designate the official or individual to be his representative.
If required by the Client, the Consultant shall
designate an individual to liaise with the Client’s representative in the
country of the Project.
15. CHANGES
IN PERSONNEL
If it is necessary to replace any person, the
party responsible for the appointment shall immediately arrange for replacement
by a person of comparable competence.
The cost of such replacement shall be borne by
the party responsible for the appointment except that if the replacement is
requested by the other party,
(i) such request shall be in writing
stating the reason for it, and
(ii) the party making the request shall bear
the cost of replacement unless misconduct or inability to perform
satisfactorily is established as the reason.
LIABILITY AND INSURANCE
16. LIABILITY BETWEEN THE PARTIES
16.1 Liability of the Consultant.
The Consultant shall only be liable to pay
compensation to the Client arising out of or in connection with the Agreement
if a breach of Article 5.1 is established against him.
16.2 Liability of
the Client.
The Client shall be liable to the Consultant if
a breach of his duty to the Consultant is established against the Client.
16.3 Compensation.
If it is established that either party is liable
to the other, compensation shall be payable only on the following terms:
(i) Such compensation shall be limited to
the amount of reasonably foreseeable loss and damage suffered as a result of
such breaches, but not otherwise.
(ii) In any event, the amount of such
compensation will be limited to the amount specified in Clause 18.1.
(iii) If either party is considered to be
liable jointly with third parties to the other, the proportion of compensation
payable by him shall be limited to that proportion of liability which is
attributable to his breach.
17. DURATION OF LIABILITY
Neither the Client nor the Consultant shall be considered
liable for any loss or damage resulting from any occurrence unless a claim is
formally made on him before the expiry of the relevant period stated in the
Particular Conditions, or such earlier date as may be prescribed by law.
18. LIMIT
OF COMPENSATION AND INDEMNITY
18.1 Limit of Compensation.
The maximum amount of compensation payable by either
party to the other in respect of liability under Clause 16 is limited to the
amount stated in the Particular Conditions.
This limit is without prejudice to any Agreed Compensation specified
under Clause 31(ii) or otherwise imposed by the Agreement.
Each party agrees to
waive all claims against the other insofar as the aggregate of compensation
which might otherwise be payable exceeds the maximum amount payable.
If either party
makes a claim for compensation against the other party and this is not
established the claimant shall entirely reimburse the other for his costs
incurred as a result of the claim.
18.2 Indemnity.
So far as the applicable law permits, the Client
shall indemnify the Consultant against the adverse effects of all claims
including such claims by third parties which arise out of or in connection with
the Agreement:
(i) except insofar as they are covered by
the insurance arranged under the terms of Clause 19.
(ii) made after the expiry of the period of
liability referred to in Clause 17.
18.3 Exceptions.
Clauses 18.1 and 18.2
do not apply to claims arising:
(i) from deliberate default or reckless
misconduct, or
(ii) otherwise than in connection with the
performance of obligation under the Agreement.
19. INSURANCE FOR LIABILITY AND INDEMNITY
The Client can request in writing
that the Consultant
(i) insures
against his liability under Clause 16.1,
(ii) increases his insurance against
liability under Clause 16.1 over that for which he was insured at the date of
the Client’s first invitation to him for a proposal of the services,
(iii) insures against public/third party
liability,
(iv) increases his insurance against
public/third party liability over that for which he was insured at the date of
the Client’s first invitation to him for a proposal for the services,
(v) effects other insurances.
If so requested, the
Consultant shall make all reasonable efforts to effect such insurance or
increase in insurance with an insurer and on terms acceptable to the Client.
The cost of such
insurance or increase in insurance shall be at the expense of the Client.
20. INSURANCE OF CLIENT’S PROPERTY
Unless otherwise requested by the
Client in writing the Consultant shall make all reasonable efforts to insure on
terms acceptable to the Client:
(i) against loss or damage to the property
of the Client supplied or paid for under Clause 6.
(ii) against liabilities arising out of the
use of such property.
The cost of such
insurance shall be at the expense of the Client.
COMMENCEMENT. COMPLETION. ALTERATION
AND TERMINATION OF THE AGREEMENT
21. AGREEMENT
EFFECTIVE
The Agreement is effective as of the date of receipt by
the Consultant of the Client’s Letter of Acceptance of the Consultant’s
proposal or of the latest signature necessary to complete the Formal Agreement,
if any, whichever is the later.
22. COMMENCEMENT
AND COMPLETION
The Services shall be commenced and completed at the
times or within the periods stated in the Particular Conditions subject to
extensions in accordance with the Agreement.
23. VARIATIONS
The Agreement can be varied on application by either
party by written agreement of the parties.
24. FURTHER
PROPOSALS
If requested by the Client in writing, the Consultant
shall submit proposals for altering the Services. The preparation and
submission of such proposals shall be an Additional Service.
25. DELAYS
If the Services are impeded or delayed by the Client or
his contractors so as to increase the amount or duration of the Services:
(i) The Consultant shall inform the Client
of the circumstances and probable effects.
(ii) The increase shall be regarded as
Additional Services.
(iii) The time for completion of the Services
shall be increased accordingly.
26. CHANGED
CIRCUMSTANCES
If circumstances arise for which the Consultant is not
responsible and which make it irresponsible for him to perform in whole or in
part the Services in accordance with the Agreement he shall promptly dispatch a
notice to the Client.
In these circumstances if certain Services have
to be suspended, the time for their completion shall be extended until the
circumstances no longer apply plus a reasonable period not exceeding 42 days
for resumption of them.
If the speed of performing certain Services has
to be reduced, the time for their completion shall be extended as may be made
necessary by the circumstances.
27. ABANDONMENT,
SUSPENSION OR TERMINATION
27.1 By Notice of the Client
(i) The Client may suspend all or part of
the Services or terminate the Agreement by notice of at least fifty-six (56)
days to the Consultant who shall immediately make arrangements to stop the Services
and minimize expenditure.
(ii) If the Client considers that the
Consultant is without good reason not discharging his obligations he can inform
the Consultant by notice stating the grounds for the notice. If a satisfactory reply is not received within
twenty-one days the Client can by a further notice terminate the Agreement
provided that such further notice is given within thirty 35 days of the
Client's former notice.
27.2 By Notice of
the Consultant
After giving at
least 14 days’ notice to the Client, the Consultant can by further notice of at
least 42 days terminate the Agreement, or at his discretion without prejudice
to the right to terminate can suspend or continue suspension of performance of
the whole or part of the Services.
(i) when 28 days after the due date for
payment of an invoice he has not received payment of that port of it which has
not by that time been contested in writing, or
(ii) when Services have been suspended under
either Clause 26 or Clause 27.1 and the period of suspension has exceeded 182
days.
28. EXCEPTIONAL
SERVICES
Upon the occurrence of circumstances described in Clause
26 or abandonment or suspension or resumption of Services or upon termination
of the Agreement otherwise than under the provisions of Clause 27.1(ii) any
necessary work or expense by the Consultant extra to the Normal and Additional
Services shall be regarded as Exceptional Services.
The performance of Exceptional Services shall
entitle the Consultant to extra time necessary for their performance and to
payment for performing them.
29. RIGHTS
AND LIABILITIES OF PARTIES
Termination of the
Agreement shall not prejudice or affect the accrued rights or claims and
liabilities of the parties.
After termination of the Agreement, the
provisions of Article 15 shall remain in force.
PAYMENT
30. PAYMENT TO
THE CONSULTANT
(i) The Client shall pay the Consultant for
Normal Services in accordance with the Conditions and with the details stated
in Appendix C, and shall pay for Additional Services at rates and prices which
are given in or based on those in Appendix C so far as they are applicable, but
otherwise as are agreed in accordance with Clause 23.
(ii) Unless otherwise agreed in writing the
Client shall pay the Consultant in respect of Exceptional Services:
(a) as for Additional Services for extra
time spent by the Consultant's personnel in the performance of the Services,
(b) the net cost of all extra expense
incurred by the Consultant.
31. TIME
FOR PAYMENT
(i) Amounts due to the Consultant shall be
paid promptly.
(ii) If the Consultant does not receive
payment within the time stated in the Particular Conditions he shall be paid
Agreed Compensation at the rate defined in the Particular Conditions compounded
monthly on the sum overdue and in its currency reckoned from the due date for
payment of the invoice. Such Agreed
Compensation shall not affect the rights of the Consultant stated in Clause
27.2
32. CURRENCY
OF PAYMENT
(i) The currency applicable to the
Agreement is that stated in Particular Conditions.
Where payment is to be made in other currencies it shall
be computed at rates of exchange as defined in the Particular Conditions and
paid net without deductions. Unless
otherwise specified in Appendix C, the Client warrants that the Consultant can
transfer abroad promptly all Local and Foreign Currency amounts in connection
with performance of the Services which are received by him in the Client’s
country.
(ii) If at the date of the Agreement or
during the performance of the Services the conditions in the Client’s country
are such as may contrary to the Agreement either
(a) prevent or delay the transfer abroad of
local or Foreign Currency payments
received by the Consultant in the Client’s country, or
b) restrict the availability or use of
Foreign Currency in the Client’s country, or
(c) impose taxes or differential rates of
exchange for the transfer from abroad of Foreign Currency into the Client’s
country by the Consultant for Local currency expenditure and subsequent
retransfer abroad of Local Currency up to the same amount such as to inhibit
the Consultant in the performance of the Services or to result in financial
disadvantage to him,
the Client warranty that such shall be deemed
circumstances justifying the applicable of Clause 26 if alternative financial
arrangements are not made to the satisfaction of the Consultant.
33. THIRD PARTY CHARGES ON THE CONSULTANT
Except where specified
in the Particular Conditions or Appendix C
(i) the Client shall whenever possible
arrange that exemption is granted to the Consultant and those of his personnel
who are not normally resident in the country of the Project from any payments
required by the Government or authorized third parties in that country which
arise form this Agreement in respect of:
(a) their remuneration
(b) their imported goods other than food and
drink
(c) goods imported for the Services
(d) documents.
(ii) whenever the Client is unsuccessful in
arranging such exemption he shall reimburse the Consultant for such payments
properly made.
(iii) provided that the goods when no longer
required for the purpose of the Services and not the property of the Client
(a) shall not be disposed of in the country
of the Project without the Client’s approval
(b) shall not be exported without payment to
the Client of any refund or rebate recoverable and received from the Government
or authorized third parties.
34. DISPUTED
INVOICES
If any item or part of an item in an invoice submitted by
the Consultant is contested by the Client, the Client shall give prompt notice
with reasons and shall not delay payment on the remainder of the invoice. Sub-clause (ii) of Clause 31 shall apply to
all contested amounts which are finally determined to have been payable to the
Consultant.
35. INDEPENDENT
AUDIT
The Consultant shall
maintain up-to-date records which clearly identify relevant time and expense.
Except where the Agreement provides for lump sum
payments, not later than twelve months after the completion or termination of
the Services, the Client can at notice of not less than 7 days require that a
reputable firm of accountants nominated by him audit any amount claimed by the
Consultant by attending during normal working hours at the office where the
records are maintained.
GENERAL PROVISIONS
36. LANGUAGES
AND LAW
In the Particular Conditions there is stated the language
or languages of the Agreement, the ruling language and the law to which the
Agreement is subject.
37. CHANGES
IN LEGISLATION
If after the date of the Agreement the cost or duration
of the Services is altered as a result of changes in or additions to the
regulations in any country in which the Services are to be performed except
that of the Consultant's principal place of business stated in the Particular
Conditions the agreed remuneration and time for completion shall be adjusted
accordingly.
38. ASSIGNMENT
AND SUB-CONTRACTS
(i) The Consultant shall not without the
written consent of the Client assign the benefits from the Agreement other than
money.
(ii) Neither the Client nor the Consultant
shall assign obligations under the Agreement without the written consent of the
other party.
(iii) The Consultant shall not without the
written consent of the Client initiate or terminate any sub-contract for
performance of all or part of the Services.
39. COPYRIGHT
The Consultant retains copyright of all documents
prepared by him. The Client shall be
entitled to use them or copy them only for the Works and the purpose for which
they are intended, and need not obtain the Consultant's permission to copy for
such use.
40. CONFLICT
OF INTEREST/CORRUPTION AND FRAUD
Notwithstanding any
penalties that may be enforced against the Consultant under the law of the
country of the project, or of other jurisdictions, the Client will be entitled
to terminate the Agreement in accordance with Clause 27.1(ii) and the
Consultant shall be deemed to have breached Clause 5(i), if it is shown that
the Consultant is guilty of:
(i) offering, giving, receiving or
soliciting anything of value with a view to influencing the behavior or action
of anyone, whether a public official or otherwise, directly or indirectly in
the selection process or in the conduct of the Agreement; or
(ii) misrepresentation
of facts in order to influence a selection process or the execution of a
contract to the detriment of the Client, including the use of collusive
practices intended to stifle or reduce the benefits of free and open
competition.
41. NOTICES
Notices under the Agreement shall be in writing and will
take effect from receipt at the addresses stated in the Particular
Conditions. Delivery can be by hand or
facsim9ile message against a written confirmation of receipt or by registered
letter or by telex subsequently confirmed by letter.
42. PUBLICATION
Unless otherwise specified in the Particular Conditions,
the Consultant, either alone or jointly with others, can publish material
relating to the Works and Services.
Publication shall be subject to approval of the Client if it is within
two years of completion or termination of the Services.
SETTLEMENT OF DISPUTES
43.1 Attempt to Resolve
The parties shall seek to resolve in good faith any
dispute or difference arising between them in respect of any matter connected
with this Agreement. If the parties
cannot resolve any such dispute or difference within 14 days, or such a period
as the parties may subsequently agree, then it shall be submitted to their
respective designated representatives under the Agreement.
If the designated representatives of the parties are
unable to reach agreement on any matter referred to them, within 14 days or any
such period as the parties may subsequently agree, then that matter or those
matters shall immediately be referred to a neutral mediator (“the Mediator”).
43.3 Appointment of Mediator
If the parties are unable to agree on the choice of a Mediator, or if
the chosen Mediator is unable or unwilling to act, then either party may
immediately apply to the President of FIDIC, or another mutually agreed
nominating organization, to appoint a Mediator.
43.4 Agreement of the Program
The parties shall, within 14 days of the appointment
of the Mediator, or any such period as the parties may subsequently agree, jointly
meet with him, to agree a program for the exchange of any relevant information
and the structure to be adopted for the negotiations.
43.5 Written Agreement to be Binding
All negotiations shall be conducted
in confidence and are not to be referred to in any concurrent or subsequent
proceedings, unless they conclude with a written legally binding
agreement. If the parties accept the
mediator’s recommendations, or otherwise reach agreement on the resolution of the
dispute, such agreement shall be recorded in writing and, once signed by the
designated representatives, shall be binding on the parties.
43.6 Non-binding
Option
If no agreement is reached, either party may invite the
Mediator to provide to both parties a non-binding opinion in writing. Such opinion shall not be used in evidence in
any concurrent
43.7 Costs of
Mediation
The parties will bear their own
costs of preparing and submitting evidence to the Mediator; if the Mediator
finds that the Mediation has been initiated or conducted frivolously or
vexatiously, then he shall have the power to order the party so initiating or
conducting the mediation to pay the reasonable costs of the other party for
preparing for and attending the mediation.
If these costs cannot be agreed, they will be assessed by the Mediator,
whose decision shall be binding on the parties.
43.8 Failure of Mediation
If
the parties fail to reach agreement within 28 days of the Mediator being
appointed, or such other period as the parties may agree, then both parties shall
be entitled to submit the dispute to arbitration under the terms of Clause 44
of this Agreement.
44. ARBITRATION
If the mediation fails, with the
agreement of the parties, the Mediator will record those facts that the parties
have agreed. All other matters in
dispute will be referred to an Arbitrator, who will be allowed access to the
recorded and agreed facts only. The
Mediator’s role will case on the appointment of the Arbitrator. He will not be available to appear as a
witness in the arbitration, or to provide any additional evidence obtained
during the mediation.
The arbitration will be conducted in
accordance with the rules stipulated in the Particular Conditions in force at
the effective date of the agreement on the basis that the parties agree to
waive their rights to any form of appeal, insofar as such waiver can validly be
made.
PARTICULAR CONDITIONS
A. References
from Clauses in the General Conditions
1. Definitions
(i) The Project is
______________________________________________
____________________________________________________________
17. Duration of Liability
____________________________________________
Reckoned from
________________________________________________
22. Commencement ________________________________________________
31. Time for Payment
Local Currency
_______________________________ days
Foreign Currency
_____________________________ days
Agreed Compensation for overdue
payment __________ percent per day
32. Currency of Agreement _________________________________________
Currencies
of payments
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Rate of exchange to currency of Agreement
|
36. Language(s) of the Agreement
_____________________________________
Ruling language
________________________________________________
Law to which Agreement is subject
_________________________________
37. Principal place of business _______________________________________
41. Notices
Client's address
______________________________________________
__________________________________________________________
__________________________________________________________
E-mail
_____________________________________________________
Facsimile Telephone No.
_________________
Consultant's address
__________________________________________
__________________________________________________________
__________________________________________________________
E-mail
_____________________________________________________
Facsimile Telephone No.
_________________
44. Rules for Arbitration __________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
B. Additional Clauses
APPENDIX A
SCOPE
OF SERVICES
The
Scope of the Consultant’s Services as finally negotiated and agreed should be
clearly expressed in Appendix A
See
the White Book Guide for additional details on how to complete this Appendix.
PERSONNEL, EQUIPMENT,
FACILITIES AND SERVICES OF OTHERS TO BE
PROVIDED BY THE CLIENT
In
Appendix B, list ac completely and in as much detail as possible the personnel,
equipment, facilities and services to be provided by the Client.
See
the White Book Guide for additional details on how to complete this Appendix.
REMUNERATION
AND PAYMENT
Appendix
C should at least cover:
- terms of payment, the basic system or
systems;
- methods of payment;
- price changes;
- taxation; and
- contingencies
See
the White Book Guide for guidance in completing Appendix C.
Class
6-FIDIC.doc
Ref.
No. 53524858
