Information technology division visakhapatnam port trust visakhapatnam
SECTION – VI GENERAL CONDITIONS OF CONTRACT
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SECTION – VIGENERAL CONDITIONS OF CONTRACT6.1. DEFINITIONS: In the contract (as hereinafter defined) the following words and expressions shall have meaning hereby assigned to them except where the context otherwise requires. 6.1.1 “Employer ” or “Owner” or “Purchaser” means the Board of Trustees of Visakhapatnam Port as constituted under the Major Port Trusts Act of 1963 and as amended from time to time or its nominee / authorized representative having its Registered Office at Administrative Office Building, Visakhapatnam Port Trust (VPT), Visakhapatnam 530 035 (Andhra Pradesh) and includes Employer’s representatives or successors or assigns. Employer’s representatives include “Project Manager”. 6.1.2 “Project Manager” or “Project Coordinator” means the person appointed by VPT in the manner provided in Clause 7.8.1 and Clause 7.8.2 to perform the duties delegated by VPT. 6.1.3 “Manager” means any assistant of the Project Manager or any other employee or agent appointed from time to time by the Employer or the Project Manager to perform the duties related to this contract. 6.1.4 ‘Site’ shall mean the locations and places wherever the Employer conducts business activities. All such locations are provided in the network architecture diagram. 6.1.5 “Consortium” or “Contractor” or “Supplier” or “Tenderer” shall mean the Bidder submitting a tender against notice inviting tender and shall include his/her/its/their heirs, executors, administrators, legal representatives/ successors/assigns and his/their Indian Agents approved by the Employer. 6.1.6 “Consortium”: (Refer 4.1.2) 6.1.6.1 If the contractor is of two or more parties, all such parties shall be jointly and severally bound to the Employer for the fulfillment of the provisions of the Contract and shall designate one of such party to act as a Leader with authority to bind the Consortium. The composition or the constitution of the Consortium shall not be altered without the prior approval of the Employer in writing. 6.1.6.2 All employees, representatives or Sub-Contractors engaged by the Consortium in connection with the performance of the Contract shall be under the complete control of the Contractor and shall not be deemed to be employees of the Employer, and nothing contained in the Contract or in any Sub-Contract awarded by the Contractor shall be construed to create any Contractual relationship between any such employees, representatives or Sub-Contractors and the Employer. 6.1.7 “Successful Bidder” means the successful consortium to which the contract will be awarded after evaluation of their technical, commercial and price bids. 6.1.8 “Contract” means invitation to tender, instructions to Bidders, tender with all the enclosures thereto, articles of agreement, General conditions of Contract, Special conditions of Contract, specifications, price schedule, drawings together with the letter of intent and other documents and correspondence specifically indicated therein and entered into between the employer and the Consortium for executing the work. 6.1.9 “Scope” means “Scope of product vendor, System Integrator, Hardware manufacturer, hardware & service provider as covered in Section III” of this document, which forms part of these documents 6.1.10 “GCC” means General Conditions of Contract and “SCC” means Special Conditions of Contract, which form part of these documents 6.1.11 “Tender Specification” shall mean the GCC, SCC, SCOPE as mentioned at Section III, Instructions to Bidders read with notice to inviting tender and subsequent clarification if any furnished by the Employer for the purpose of submitting the offer by the Bidder. 6.1.12 “CC” means the Conditions of Contract. 6.1.13 “ERP Solution” covers supply of ERP Product, Related Software, Implementation services, Hardware & services. All the software products supplied, both System and Application, sub-systems, interfaces, Materials and other Goods to be supplied, installed, implemented, and made operational, by the Consortium under the Contract. 6.1.14 “Contract Agreement” means the agreement entered into between and the Consortium using the Form of Contract Agreement contained in the Appendix # 1 of the Bidding Documents and any modifications to this form agreed to by and the Consortium. The date of the Contract Agreement shall be recorded in the signed form. 6.1.15 “Contract Documents” means the documents specified in “Contract Agreement”. 6.1.16 “Contract Price” means the sum named in the LOA subject to such additions thereto or deductions there from as may be made under the Provisions hereinafter contained 6.1.17 “Notice in Writing” or “Written Notice” means a notice in written, typed or printed characters sent (unless delivered personally or otherwise proved to have been received) by registered post to the address given in the tender or last known business address or registered office of the Consortium and shall be deemed to have been received when in the ordinary course of post it would have been delivered. 6.1.18 “Schedule” or “Work Schedule” shall mean the accepted schedules between the Consortium and the Employer forming part of the contract. 6.1.19 “Letter of Acceptance (LOA)” means intimation from the Employer by a letter / fax to the Bidder that his tender has been accepted in accordance with the provisions contained in that letter / fax. 6.1.20 “Date of award of contract” or “Effective date” shall mean the date of issue of Letter of Acceptance or the date of issue of acceptance of tender or date of contract whichever is earlier. 6.1.21 “Approval of the Employer” shall mean the written approval by the Employer or his authorized representative of a document, a drawing or other particulars of matters in relation to the contract. 6.1.22 Words importing persons shall include firms, companies, corporations, associations or body of individuals whether incorporated or not. Words importing masculine gender or singular number shall also include the feminine gender and plural number and vice-versa where the contract so requires or permits. 6.1.23 The contract and all correspondence between the Employer and the Consortium shall be in English language. 6.1.24 ‘ERP PRODUCT VENDOR’ is the agency supplying ERP product. 6.1.25 ‘System Integrator’ is the agency who provides all necessary services for the successful implementation of the ERP Solution. 6.1.26 “In charge” of Consortium is a person from the System Integrator appointed by Consortium with 15 years of experience and above having Successfully manage at least two large multi module, multi location projects on the proposed ERP platforms in large organizations and assigned execution of this contract. He will be deemed as authorized agent of the Consortium. 6.1.27 “Senior Consultant” of Consortium is a person with an experience of 10 years and above, having at least two ERP modules implemented in a large organization. 6.1.28 “Junior Consultant” of Consortium’ is a person with an experience of 5 years and above, having implemented at least one ERP module in large organizations. 6.1.29 The headings to various clauses of this contract shall not be deemed to be part thereof or be taken into consideration in the interpretation or construction thereof of the contract. 6.1.30 “Technical Requirements” means the requirements mentioned & refereed in the Scope of Work given in Section III. 6.1.31 “Implementation Schedule” means the Implementation Schedule documented in the Agreed and Finalized Project Plan. 6.1.32 “Bidding Documents” refers to the collection of documents issued by to instruct and inform bidders of the processes for bidding, selection of the winning bid, and Contract formation, as well as the Contractual conditions governing the relationship between and the Consortium. 6.1.33 “Consortium’s Representative” means any person nominated by the Consortium and named as such in the Contract Agreement and approved by in the manner provided in Clause 6.11.3 (Consortium’s Representative) to perform the duties delegated by the Consortium. 6.1.34 “System” or “Subsystem” means any application component, developed application or module of the ERP proposed to meet the technical requirements that may be supplied, installed, tested, and commissioned individually before Commissioning of the entire ERP Solution. 6.1.35 “Services” means all technical, logistics, management, and any other Services to be provided by the Consortium under the Contract to supply/ develop, install, implement, customize, integrate, and make operational the proposed ERP Solution. Such Services may include, but are not restricted to Installation, Commissioning, Go-Live, testing, stabilization and Training. 6.1.36 “The Project Plan” means the document to be developed by the Consortium and approved by VPT, pursuant to Clause 7.9, based on the requirements of the Contract and the Development and Implementation Plan included in the Consortium’s bid. For the sake of clarity, “the Agreed and Finalized Project Plan” refers to the version of the Project Plan approved by VPT. The project plan may be changed/ modified during the course of the project. Should the Project Plan conflict with the Contract in any way, the relevant provisions of the Contract, including any amendments, shall prevail. 6.1.37 “ERP Software/ERP Product” means Software that provides the operating and management instructions for the underlying hardware, databases and such other Software as the parties may agree in writing to be ERP Software/ ERP Product. Such ERP Software/ERP Product includes but is not restricted to, micro-code embedded in hardware (i.e., “firmware”), operating systems, communications, system management, utility software etc. 6.1.38 “Materials” means all the deliverables as per the agreement to be provided to under the Contract. 6.1.39 “Intellectual Property Rights” means any and all copyright, moral rights, trademark, patent, and other intellectual and proprietary rights, title and interests worldwide, whether vested, contingent or future including without limitation all economic rights and all exclusive rights to reproduce, fix, adapt, modify, translate, create derivative works from, extract or re-utilize data from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit or provide access electronically, broadcast, display, enter into computer memory, or otherwise use any portion or copy, in whole or in part, in any form, directly or indirectly, or to authorize or assign others to do so. 6.1.40 “Sea Port” means a Port, which is engaged in the process of offering services to ships, importers and exporters and facilitates movement of cargo to the final destination at a single location. 6.1.41 “Offered ERP Product” is the product being proposed by the bidder for implementation of ERP solution at /VPT which is similar to or improved or upgraded version of the ERP product that has been successfully implemented and running during the period specified. 6.1.42 “Delivery” means delivery of different items at employer’s site as per the scope given in section II of this document. 6.1.43 “Installation” means that the System or a Subsystem installed on the hardware and made available for Commissioning as provided in Section 6. 6.1.44 “User Acceptance Tests” means the tests specified in the Technical Requirements and Agreed and Finalized Project Plan to be carried out to ascertain whether the “ERP SOLUTION” or a specified Subsystem, is able to attain the functional and performance requirements (relating to commissioning) as specified in the Technical Requirements and Agreed and Finalized Project Plan, in accordance with the provisions of Clause 7.13 6.1.45 “User Acceptance” means the acceptance by that the “ERP SOLUTION” or any Subsystem(s) where the Contract provides for acceptance of the System in parts) is capable of attaining the functional and performance requirements (relating to commissioning) as specified in the Technical Requirements and Agreed and Finalized Project Plan in accordance with Clause 7.13 6.1.46 “Go-Live” (Commissioning) means the “ERP SOLUTION” is available for live transactions following Cut-Over as per the definition in Agreed and Finalized Project Plan. Go-Live Acceptance tests are conducted in accordance with the provisions of Clause 7.14 6.1.47 “Go-Live Acceptance Tests” means the tests specified in the Technical Requirements and Agreed and Finalized Project Plan to be carried out to ascertain whether the “ERP SOLUTION” or a specified Subsystem, is able to attain the functional and performance requirements (relating to commissioning) in production/ live environment as specified in the Scope of Work and Agreed and Finalized Project Plan. 6.1.48 “Go-Live Acceptance” means the acceptance by that the “ERP SOLUTION” (or any Subsystem(s) where the Contract provides for acceptance of the “ERP SOLUTION” in parts) is capable of attaining the functional and performance requirements (relating to Go-Live) as specified in the Scope of Work and Agreed and Finalized Project Plan in accordance with Clause 7.14. 6.1.49 “Stabilization Period” ” means successful running of the full system for atleast six months from Go-Live. 6.1.50 “Stabilization Acceptance Test” (PG Test) means the tests specified in the Technical Requirements and Agreed and Finalized Project Plan to be carried out to ascertain whether the “ERP SOLUTION” or a specified Subsystem, is able to attain the functional and performance requirements in production/ live environment as specified in the Scope of Work and Agreed and Finalized Project Plan, in accordance with the provisions of Clause 7.14 6.1.51 “Stabilization Acceptance” means the acceptance by after the “ERP SOLUTION” (or any Subsystem(s) where the Contract provides for acceptance of the “ERP SOLUTION” in parts) passes the “Stabilization Acceptance Test(s)” successfully in accordance with Clause 7.14 6.1.52 “Final acceptance” means the acceptance by after successful completion of the defect liability period (warranty/guarantee period). 6.1.53 “Day” means calendar day of the Gregorian calendar. 6.1.54 “Week” means seven (7) consecutive Days, beginning the day of the week as is customary in India. 6.1.55 “Month” means calendar month of the Gregorian calendar. 6.1.56 “Year” means a period of twelve (12) consecutive Months. 6.1.57 “Taking Over” means the physical possession of ERP Solution by the Employer, after issue of the Go-Live Acceptance Certificate. However, the Consortium shall not be relieved of his obligations under the Contract. 6.1.58 “Contract Period” is the time period during which this Contract governs the relations and obligations of and Consortium in relation to the “ERP SOLUTION”. 6.1.59 “Defect Liability Period” (also referred to as the “Warranty Period”) means the period of validity of the warranties given by the Consortium commencing at the date of Stabilization Acceptance of the “ERP SOLUTION” or Subsystem(s)/ Customizations, during which the Consortium is responsible for defects with respect to the “ERP SOLUTION” (or the relevant Subsystem[s]) as provided in Clause 7.13 & 7.14. 6.1.60 “Hardware Manufacturer” means the Original Manufacturer of Hardware in India or its Indian Office incase the manufacturer is located outside INDIA. 6.1.61 Core ERP Product means that the standard features provided by the modules of the ERP Product. 6.1.62 End to End implementation: End to End implementation consists of all stages of ERP implementation which includes analysis, design, conference room pilot, user test, system integration test, user acceptance test, data conversion, customization, training, go-live, stabilization and post go-live support. 6.1.63 Commercially Off The Shelf product or COTS Software or COTS means software provided by a third party vendor that implements key capabilities not normally provided by Core ERP product. 6.1.54 Large organization means any organization with Rs. 1500 Crores turnover in the FY 2009-10. 6.2. INTERPRETATION: 6.2.1 Language: All Contract Documents, all correspondence, and communications to be given shall be in English, and the Contract shall be construed and interpreted in accordance with that language 6.2.2 If any of the Contract Documents, correspondence, or communications are prepared in any language other than English, the translation of such documents, correspondence, or communications shall prevail in matters of interpretation. The originating party, with respect to such documents, correspondence, and communications, shall bear the costs and risks of such translation. 6.2.3 Headings: The headings and marginal notes in the CC are included for ease of reference and shall neither constitute a part of the Contract nor affect its interpretation. 6.2.4 Persons: Words importing persons or parties shall include firms, corporations, and government entities. 6.2.5 Entire Agreement: The Contract constitutes the entire agreement between VPT and Consortium with respect to the subject matter of Contract and supersedes all communications, negotiations, and agreements (whether written or oral) of parties with respect to the subject matter of the Contract made prior to the date of Contract. 6.2.6 Amendment: No amendment or other variation of the Contract shall be effective unless it is in writing, is dated, expressly refers to the Contract, and is signed by a duly authorized representative of each party to the Contract. 6.2.7 Severability: If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable such prohibition, invalidity, or unenforceability shall not affect the validity or enforceability of any other provisions and conditions of the Contract. 6.3 ASSIGNMENT AND SUBCONTRACTING: 6.3.1 Assigning: The Consortium shall not transfer or assign the Contract or any part thereof or any benefit or interest therein or there under without the written consent of the Employer. In the event of the Consortium contravening this condition, the Employer shall be entitled to place the Contract else where on the Consortium's account and at his risk and cost, then the Consortium shall be liable for any loss or damage which the Employer may sustain in consequence or arising out of such replacing of contract. This shall not relieve the Consortium of any responsibility under this Contract. 6.3.2 Sub-contracting: The Consortium shall not sub-contract the whole or any part of the works without the prior approval of the Employer and such approval if given shall not establish any contractual relationship between the sub-contractor and the Employer and shall not relieve the Consortium of any responsibility, liability or obligation under the Contract and the Consortium shall be responsible for the acts, defaults and neglects of any sub-contractor or sub-contractor’s agents, servants or workmen as fully as if they were the acts, defaults or neglects of the Consortium or his agents, servants or workmen. However, the execution of the works by Piece Rate Worker (PRW) contract under the direct and personal supervision of the Consortium or his agent shall not be deemed to be sub-contract under this clause. 6.3.3 Notwithstanding the approval given by the Employer for sub-contract, it shall continue be obligatory on the part of the Consortium to provide to the Employer all the details viz., drawings, specifications, technical data, detailed design, performance characteristics etc. from his sub-Contractors. 6.3.4 In the event of the Employer agreeing for the sub-suppliers proposed by the Consortium, it shall be obligatory on the part of the Consortium to deploy their technical experts to direct and exercise control over quality of their Services, Equipment, Materials and Workmanship. However, the same shall not relieve the Consortium of any of his obligations, duties or responsibilities under the Contract. 6.3.5 The employer shall not allow any of the Consortium members to subcontract any of the work/supply in the contract for which the consortium member has been accepted based on their fulfillment of mandatory criteria prescribed for such work/supply. This is essential to ensure that competent agencies meeting mandatory criteria shall only execute the said work/supply. 6.3.6 The Employer shall have the right to specify the brand name/s of the standard bought out items in the Contract and the Consortium shall procure such items from those branded name/s. This shall, however, not relieve the Consortium of his other obligations under the Contract. 6.4. INDEMNITY: 6.4.1 The Consortium assumes responsibility for and shall indemnify and save harmless the Employer, from all liability, claims, costs, expenses, taxes and assessments including penalties, punitive damages, attorney's fees and court cost which are, or may be required with respect to any breach of the Consortium’s obligations under the Contract, or for which the Consortium has assumed responsibility under the Contract, including those imposed under any contract, local or national and international law or laws, or in respect of all salaries, wages or other compensation of all persons employed by the Consortium in connection with performance of any work covered by the Contract. The Consortium shall execute and deliver such other further instruments to comply with all the requirements of such laws and regulations as may be necessary there under to confirm and effectuate the Contract and to protect the Employer. 6.4.2 The Employer shall not be in any way held responsible for any accident or damages incurred or claims arising there from during discharge of the obligations by Consortium under this contract. 6.5. PATENT INFRINGEMENT 6.5.1 The Consortium shall protect, indemnify and save harmless the Employer, his customers and users of his products, against all liability, including cost, expenses, claims, suits or proceedings at law in equity or otherwise, growing out of or in connection with any actual or alleged patent infringement (including process patents, if any) or violation of any license and will defend or settle at the Consortium’s own expense any such claims, suits or proceedings. 6.5.2 The Employer will notify the Consortium in writing of any such claim, suit, action or proceeding coming to his attention, giving authority and all available information and assistance for the Consortium’s defense of the same. The Consortium shall appoint a counsel at his own expenses in consultation with the Employer to collaborate in the defense of any such claim, suit, action or proceeding. 6.6. TERMINATION OF THE CONTRACT: 6.6.1 Termination for Purchaser’s Convenience: The Purchaser may at any time terminate the Contract for any reason by giving the Consortium a ninety days (90) notice of termination that refers to this Clause 6.6.1 6.6.1.1 Upon receipt of the notice of termination under Clause 6.6.1, the Consortium shall either as soon as reasonably practical or upon the date specified in the notice of termination cease all further work, except for such work as the Purchaser may specify in the notice of termination for the sole purpose of protecting that part of the “ERP SOLUTION” already executed, or any work required to leave the site in a clean and safe condition. In addition, the Consortium, subject to the payment specified in Clause 6.6.1.2, shall i. deliver to the Purchaser the parts of the “ERP SOLUTION” executed by the Consortium up to the date of termination; ii. to the extent legally possible, assign to the Purchaser all right, title, and benefit of the Consortium to the “ERP SOLUTION” , or Subsystem, as at the date of termination, and, as may be required by the Purchaser iii. deliver to the Purchaser all non-proprietary drawings, specifications, and other documents prepared by the Consortium as of the date of termination in connection with the “ERP SOLUTION”. 6.6.1.2 In the event of termination of the Contract under Clause 6.6.1.1, the Purchaser shall pay to the Consortium the following amounts: a) The Contract Price properly attributable to the parts of the “ERP SOLUTION” executed by the Consortium as of the date of termination; b) The cost of satisfying all other obligations, commitments, and claims that the Consortium may in good faith have undertaken with third parties in connection with the Contract and that are not covered by Paragraphs 5.6.1.2 (a) through (b) above. 6.6.2 Termination for Consortium’s Default 6.6.2.1 The Purchaser, without prejudice to any other rights or remedies it may possess, may terminate the Contract forthwith in the following circumstances by giving a notice of termination and its reasons therefore to the Consortium, referring to this Clause 6.6.2.1. The bidder/SI shall be given a 30-day period for rectification of defects if any before proceeding with termination of contract, a) if the Consortium becomes bankrupt or insolvent, has a receiving order issued against it, compounds with its creditors, or, if the Consortium members are corporation, a resolution is passed or order is made for its winding up (other than a voluntary liquidation for the purposes of amalgamation), a receiver is appointed over any part of its undertaking or assets, or if the Consortium takes or suffers any other analogous action in consequence of debt; b) if the Consortium assigns or transfers the Contract or any right or interest therein in violation of the provision of Clause 6.3 (Assignment and subletting); or c) if the Consortium, in the judgment of the Purchaser, has engaged in corrupt or fraudulent practices in competing for or in executing the Contract, including but not limited to willful misrepresentation of facts concerning ownership of Intellectual Property Rights in, or proper authorization and/or licenses from the owner to offer, the hardware, software, or materials provided under this Contract. d) if the Consortium has abandoned or repudiated the Contract; e) if the Consortium has without valid reason failed to commence work on the “ERP SOLUTION” promptly; f) if the Consortium persistently fails to execute the Contract in accordance with the contract or persistently neglects to carry out its obligations under the Contract without just cause; g) if the Consortium refuses or is unable to provide sufficient Materials, Services, or labor to execute and complete the “ERP SOLUTION” in the manner specified in the Agreed and Finalized Project Plan furnished under Clause 7.9 at rates of progress that give reasonable assurance to the Purchaser that the Consortium can attain User Acceptance, Go-Live Acceptance of the “ERP SOLUTION” by the Time for Achieving stabilization Acceptance as extended; then, the Purchaser may, without prejudice to any other rights it may possess under the Contract, give a notice to the Consortium stating the nature of the default and requiring the Consortium to remedy the same. If the Consortium fails to remedy or to take steps to remedy the same within fourteen (14) days of its receipt of such notice, then the Purchaser may terminate the Contract forthwith by giving a notice of termination to the Consortium.
Consortium shall, either immediately or upon such date as is specified in the notice of termination: a) cease all further work, except for such work as the Purchaser may specify in the notice of termination for the sole purpose of protecting that part of the “ERP SOLUTION” already executed or any work required to leave the site in a clean and safe condition; b) deliver to the Purchaser the parts of the “ERP SOLUTION” executed by the Consortium up to the date of termination, subject to the receipt of payment stated in clause 6.6.2.5 c) to the extent legally possible, assign to the Purchaser all right, title and benefit of the Consortium to the “ERP SOLUTION” or subsystems as at the date of termination, Contract d) deliver to the Purchaser all drawings, specifications, and other documents prepared by the Consortium as at the date of termination in connection with the “ERP SOLUTION”. 6.6.2.4 The Purchaser may enter upon the site, expel the Consortium, and complete the “ERP SOLUTION” themselves or by employing any third party. Upon completion of the “ERP SOLUTION” or at such earlier date as the Purchaser thinks appropriate, the Purchaser shall give notice to the Consortium that such Consortium’s Equipment will be returned to the Consortium at or near the site and shall return such Consortium’s Equipment to the Consortium in accordance with such notice. The Consortium shall thereafter without delay and at its cost remove or arrange removal of the Consortium’s Equipment from the site. In case VPT completes the work, the extra cost incurred and in case the third party’s services are utilized for completion, the extra cost incurred shall be recovered from the Consortium. 6.6.2.5 Subject to Clause 6.6.2.6, the Consortium shall be entitled to be paid the Contract Price attributable to the portion of the “ERP SOLUTION” executed as at the date of termination and the costs, if any, incurred in protecting the “ERP SOLUTION” and in leaving the site in a clean and safe condition pursuant to Clause 6.6.2.3 (a). Any sums due to the Purchaser from the Consortium accruing prior to the date of termination shall be deducted from the amount to be paid to the Consortium under this Contract. 6.6.2.6 If the Purchaser completes the “ERP SOLUTION”, the cost of completing the “ERP SOLUTION” by the Purchaser shall be determined. If the sum that the Consortium is entitled to be paid, pursuant to Clause 6.6.2.5, plus the reasonable costs incurred by the Purchaser in completing the “ERP SOLUTION” exceeds the Contract Price, the Consortium shall be liable for such excess. If such excess is greater than the sums due to the Consortium under Clause 6.6.2.5, the Consortium shall pay the balance to the Purchaser, and if such excess is less than the sums due to the Consortium under Clause 6.6.2.5, the Purchaser shall pay the balance to the Consortium. The Purchaser and the Consortium shall agree, in writing, on the computation described above and the manner in which any sums shall be paid. 6.7. FORCE MAJEURE: 6.7.1 If at any time during the continuance of the Contract, the performance in whole or in part by either party or any obligations under the Contract shall be prevented or delayed by reason of any war, hostilities, act of public enemy, civil commotion, sabotage, fire, floods, explosions, epidemics, quarantine restrictions and Acts of God (hereinafter referred to as 'Events') and provided notice of the happening of any of the above mentioned Event duly certified by Indian Chamber of Commerce is given by either party to the other within 21 days from the date of occurrence thereof, the Employer shall have the right by reason of such Event to terminate the Contract without however affecting the right to any claim for damages on the Consortium in respect of such non-performance or delay in performance. However, in the event of the Employer having agreed, the services under the Contract shall be resumed after such Event has come to end/ceases to exist. Should one or both the parties be prevented from fulfilling their contractual obligations by a state of force majeure lasting continuously for a period of at least six months and the Employer not having terminated the Contract by that time, the two parties shall consult each other regarding the further implementation of the Contract with the provision that if no mutually satisfactory arrangement is arrived at within a period of three months from the expiry of six months referred to above, the Contract shall be deemed to have expired at the end of the three months referred to above. The above mentioned expiry of the Contract will imply that both the parties have obligations to reach an agreement regarding the winding up and financial settlement of the Contract. 6.8. SETTLEMENT OF DISPUTES: 6.8.1 The decisions, opinions, directions, certificates of valuation of the Project manager with respect to all or any of the matters under clauses 7.1(d), 7.20, 7.21, 7.22 and special conditions of contract for the decision of which specific provisions have been made here of, which matters here in referred to as “excepted matters” shall be final and conclusive and binding on the parties hereto shall be with out appeal and are excluded from settlement by mutual negotiation, conciliation and arbitration. 6.8.2 Any notice to be given to the Consortium under the terms of these conditions shall be considered as duly served if the same shall have been delivered to, left for, or posted by registered post to the address of the Consortium at their registered office or address given in the tender. Similarly, any notice to be given to the Employer shall be considered as duly served, if the same shall have been delivered to, left for, or posted by registered post to the Employer’s office at Visakhapatnam 6.8.3 The Agreement shall in all respects be construed and carried into effect and rights and liabilities of the parties hereto shall be regulated according to the laws of India. 6.8.4 Mutual Settlement of Disputes: Except where otherwise provided for in the contract, other than excepted matters all questions and dispute relating to any matter directly or indirectly connected with this agreement shall in the first place be resolved through mutual discussions, negotiations, deliberation and consultations between both the parties. 6.8.5 Conciliation: If the effort to resolve all or any of the disputes other than excepted matters through mutual settlement fails, such disputes shall be referred to the conciliator to be appointed by the mutual agreement of both VPT and the Consortium. The conciliator shall make the settlement agreement after the parties reach agreement and shall give an authenticated copy thereof to each of the parties. The settlement agreement shall be final and binding on the parties. The settlement agreement shall have the same status and effect of an arbitration award and the proceedings shall be held in accordance with the Arbitration & Conciliation Act, 1996. The venue of Conciliation shall be Visakhapatnam, India. 6.8.6 Arbitration: Any disputes, differences, whatsoever, arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Contract shall be settled between VPT and the Consortium amicably as mentioned in Clause 6.8.4 and 6.8.5. If however, VPT and the Consortium are not able to resolve their disputes / differences amicably as aforesaid except where matters, decisions, opinions are declared as final binding and conclusive which are referred to as excepted matters the said disputes / differences shall be settled by Arbitration. The arbitration proceedings shall be regulated and governed by Arbitration and Conciliation Act, 1996 and the statutory modification thereof to the said act if any. The Arbitral Tribunal shall give a reasoned award. The award made in pursuance thereof shall be binding on the parties. The arbitration shall be governed and regulated in all respect according to Laws of India. The venue shall be Visakhapatnam-India. 6.8.7 The further progress of any work under the contract shall unless otherwise directed by the Employer continue during the arbitration proceedings and no payment due or payable by the Employer shall be withheld on account of such proceedings. It shall not be open to arbitrator(s) to consider and decide whether or not such work shall continue during the arbitration proceedings. 6.8.8 The courts at Visakhapatnam shall alone have jurisdiction and the applicable laws shall be the Laws of India. 6.9. ACCESS TO AND POSSESSION OF SITE: 6.9.1 In the execution of the Work no person other than the representatives of Consortium and his or their employees shall be allowed on the Site except with the written permission of the Employer. All facilities to inspect the Work at all times shall be afforded to the Employer and his representatives and other authorized officials. 6.9.2 The Consortium shall plan and execute their work in phased manner as directed by the Project Manager/Employer from time to time and shall fully co-operate with other agencies working at Site simultaneously as well as with the Employer’s Operation Department so as not to obstruct or retard the work simultaneously being executed by other agencies and the port operation in any way. The decision of the Project Manager/Employer on any point of dispute between the various Consortium Members shall be final and binding on all the parties concerned 6.10. PACKING, PROTECTIVE PAINTING AND MARKING: 6.10.1 The Consortium shall include and provide for securely protecting and packing the Equipment in accordance with the best established practices so as to protect the contents from damage during transit from point of manufacture until after arrival at Erection Site under conditions which may involve multiple handling, transport by ship, rail and road, reshipment, storage, exposure to heat, moisture, rain etc. and possibility of pilferage. All packing shall allow for easy removal and checking at Site. The Consortium shall stick/paste list of its contents on top of the Package. The Consortium shall ensure packing of all items as listed in the packing list before finally dispatching the Package. 6.10.2 Fragile items shall be wrapped in crepe cellulose wadding or some equally efficient cushioning materials and floated in excelsior and packed in substantial wooden coves with special precaution against risk or breakage. 6.10.3 Wherever necessary the packages shall be marked with special markings such as “TOP, “BOTTOM”, “DO NOT OVERTURN”, “FRAGILE”, “HANDLE WITH CARE”, “KEEP DRY”, etc. as well as a special symbol indicating the top. 6.10.4 Packing lists: Each package shall have inside it a detailed packing list quoting specifically the name of the Consortium member, number and date of the Contract, the name of the Employer and the detailed list of, contents packed within the package indicating the nomenclature of the Stores and a schedule of parts of each complete Equipment giving the part numbers with reference to the assembly drawings and the quantity of each part, drawing numbers and tag numbers. A duplicate copy of the packing list shall be put in a water proof envelope and fastened securely to the outside of the package as well as to unpacked pieces or bundles. 6.10.5 Notwithstanding anything stated in the clause, the Consortium shall be entirely responsible for missing, shortage, damage, loss or depreciation to the Materials occasioned by faulty, defective or insecure packing or due to improper or insufficient protective system 6.11. ENVIRONMENTAL CLAUSE: 6.11.1 The following environment, safety & health points are to be adhered: a) The Consortium must adhere to all the applicable statutory laws pertaining to safety, health and environment b) All the motor vehicles of the Consortium used for transporting materials/machinery etc should have pollution control certificates and the same should be submitted at the time of obtaining gate passes. A copy of the same must be exhibited/pasted on the vehicle also c) The Consortium must ensure that suppression measures in the work areas by sprinkling of water etc. and also ensure that all his workers use dust masks while working in dusty areas. d) The Consortium must ensure proper house keeping at site by keeping the work-areas free from unwanted material and greases, oil to avoid slips & falls. e) The Consortium must ensure that all the debris generated during the work is transported safely to dump yard such that there is no spillage of debris on the road during transportation (by covering with a plastic sheet/tarpaulin) g) All the material which may be recycled / reused should be transported to the designated place for reuse/recycling l) All supervisors/ workers of Consortium must take safety and environmental induction training and comply with the instructions given therein. 6.11.2 The Consortium shall engage workmen of good conduct and clean antecedents. 6.11.3 Generally, it shall be the responsibility of the Consortium to complete with all the statutory enactments, regulations, directions, notifications etc. issued by the Central and State Governments or any other Pollution Control Authorities from time to time. 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