English
REGISTRATION
Guascor Energy policy only allows to offer training to Guascor Energy employees or companies belonging to the distribution and service network with a signed agreement for the service and operability of the equipment.
Note: Taxes are not included in the website prices
PAYMENT TERMS FOR GUASCOR ENERGY EMPLOYEES
Place a Guascor Energy order
PAYMENT TERMS FOR NON GUASCOR ENERGY EMPLOYEES
30% of the payment at the moment of the inscription to the training.
70% of the payment at the end of the training.
No charge will be applied if cancellation of the training is received at least 30 calendar days in advance of the beginning of the course. During 30 natural days before of the beginning of the course, there is a penalty by cancellation of 30% of the total price of the course.
International Terms and Conditions
1. General
1.1 The scope, quantity, quality, functionality and technical specifications of any goods, equipment,
documentation, software, work or services to be provided by Guascor Energy (collectively referred to as
"Works") are exclusively defined as the case may be either in the order confirmation issued by
Guascor Energy or the Contract signed by the Customer and Guascor Energy.
1.2 The offer letter from Guascor Energy together with these terms and conditions and those other documents
expressly identified in the offer letter as forming part of the contract shall together constitute the entire
agreement between the parties (the "Contract"). Any terms and conditions of the Customer shall
apply only where expressly accepted in writing by Guascor Energy.
1.3 References in the Contract to “Guascor Energy” are to the Guascor Energy legal entity which signs the Contract,
unless the context otherwise requires. References to the “Customer” are to the legal entity to whom
the offer letter is addressed.
2. Rights of Use
2.1 Except as expressly otherwise agreed in this Contract, as between the parties all intellectual and
industrial property rights in the Works, in all documents provided by Guascor Energy in connection with this
Contract (the “Documents”), and in all software, hardware, know how (“IPR”) and other things
provided with or as part of the Works and the Documents shall be the exclusive property of and vest in
Guascor Energy. The Customer may not reverse engineer, decompile, or reproduce (or have reverse
engineered, decompiled, or reproduced) the Works or parts thereof except only to the extent permitted
to do so by the applicable law or specifically authorized in writing by Guascor Energy.
2.2 The Customer may use the Documents unmodified and to the extent necessary for operation and
routine maintenance of the Works by the Customer’s own personnel, unless explicitly agreed
otherwise in writing by Guascor Energy.
2.3 If the Works include Guascor Energy software, such software is licensed under the licence terms contained in
the software documentation, the software itself or in attached licence terms (in each case the
“applicable licence conditions”), which shall prevail over this Clause2. The software is issued in object
code without source codes. The licence only grants the non-exclusive right to use the software as
described in the applicable licence conditions or, if not described, for the purpose of operation and
routine maintenance of the Works.
2.4 The Works may include third party software. Insofar as specific license terms of the third party licensor
apply, Guascor Energy will provide such terms together with the Works. The Customer shall comply with such
third party licence terms.
2.5 Insofar as the software contains Open Source Software (“OSS”), Guascor Energy will provide the applicable
OSS licence terms together with the Works. The OSS licence terms shall prevail over this Contract.
Details regarding any third-party software and the OSS contained in the Works are available in the
software documentation (e.g. README_OSS).
2.6 The rights granted in Clause 2 shall be transferable to a third party only together with the transfer of
ownership of all of the Works to that third party.
2.7 Without prejudice to the Customer’s intellectual property rights and subject to compliance with
applicable law, Guascor Energy and its Affiliates may for its own business purposes collect, use, modify, and
copy any data received under this Contract. Any legal obligations regarding personal data shall remain
unaffected.
3. Prices and Terms of Payment
3.1 Unless agreed otherwise in writing, prices exclude packing, freight, insurance and any other additional
charges (such as storage, inspections by third parties). The price payable by the Customer for the
Works under this Contract shall be referred to in this Contract as the “Contract Price”.
3.2 Unless expressly stated otherwise, if Guascor Energy undertakes any erection, assembly, installation,
commissioning or testing of the Works or a part of the Works outside Guascor Energy’ own premises (“Works
on Site”), the Customer shall bear all incidental costs, including travel expenses, daily allowances, in
addition to the Contract Price.
3.3 The Contract Price is exclusive of any indirect taxes (including property, license, sales, use, value
added or similar tax) and/or any duties, customs or public charges related to the Contract. The
Customer agrees to pay to or reimburse Guascor Energy for any taxes, customs, duties or other public
charges levied on Guascor Energy in relation to the Works. All payments shall be made to Guascor Energy’ bank
account without deduction (e.g. deduction of withholding tax) within 30 days after issuance of the
invoice. If the Customer is required to make a deduction by law, the sum payable shall be increased
so that Guascor Energy receives a net amount equal to the amount it would have received without such
deduction. The Customer shall provide to Guascor Energy tax receipts from the relevant tax authorities in
connection with the payments in due course.
3.4 Without prejudice to any other rights it may have, Guascor Energy may charge interest at 9 percentage points
above the current base lending rate of the European Central Bank on any overdue payments.
3.5 Each party must pay all sums that it owes to the other party under this Contract free and clear without
any set-off, counterclaim, deduction or withholding of any kind, save as agreed otherwise in writing or
as may be required by law.
4. Delivery Times, Delay and Liquidated Damages
4.1 Any agreed dates for performance of the Works or any part of it shall be extended by a reasonable
period of time if and to the extent that Guascor Energy is delayed or impeded in the performance of its
obligations by any third party or by the failure of the Customer to perform its obligations. This includes
without limitation the delivery of required documents (for example necessary permits and approvals),
timely performance of any work to be undertaken by the Customer or any third party appointed by the
Customer, and compliance with the terms of payment.
4.2 Guascor Energy may, if it is reasonable to do so, deliver the Works in stages or instalments and shall be
entitled to invoice for the Works on a corresponding basis.
4.3 If Guascor Energy does not meet the agreed final completion date solely due to the fault of Guascor Energy, the
Customer shall be entitled to liquidated damages amounting to 0.5% of the price of the delayed part of
the Works per each completed week of delay in which the Customer suffered loss as a result of such
delay. Liquidated damages payable in case of delay shall be limited to 5% of the price of the delayed
part of the Works but in any case shall not exceed 5% of the Contract Price.
4.4 Any rights and remedies of the Customer in case of delay other than those expressly stipulated in this
Clause 4 and in Clause 16.2 a) below shall be excluded, to the extent permissible by law.
4.5 If the Customer, the Customer’s contractors, or any other third party appointed by the Customer
causes a delay to the provision of the Works, the Customer shall reimburse Guascor Energy all reasonable
additional costs and expenses incurred due to such delay.
4.6 If the Works fail to meet any performance figures in the Contract solely due to the fault of Guascor Energy,
Guascor Energy shall be given additional reasonable time to achieve such figures by carrying out at its own
expense any work which Guascor Energy considers necessary. If, after completion of the work and all further
performance test, the performance figures are not reached, the Customer shall be entitled to
liquidated damages at such rate as may be specified in the Contract but which shall in no event
exceed 5% of the price of the part of the Works failing to meet the agreed figures. The payment of liquidated damages shall be the Customer’s only remedy for and in connection with the nonachievement of the performance figures required under the Contract.
5. Transfer of Risk and Title
5.1 Risk of damage to or loss of any part of the Works shall pass to the Customer upon delivery.
5.2 The Works shall be deemed delivered if and when the Customer fails to accept delivery without cause.
In such case, the Works can be stored and insured at the risk and expense of the Customer, any
payment shall become due, and all other consequences of the delivery shall apply accordingly. The
same consequences shall apply on the scheduled date of delivery if the dispatch is postponed for
reasons attributable to the Customer.
5.3 Title in any part of the Works shall remain with Guascor Energy until Guascor Energy has received full payment for
that part of the Works. Upon conclusion of the Contract the Customer authorises Guascor Energy to notify or
enter this retention of title into public registers, books or similar records kept for this purpose by the
competent authorities of the relevant countries and to fulfil all required formalities at the Customer’s
expense.
6. Force Majeure
6.1 A “Force Majeure Event” means any event which is beyond the reasonable control of a party or its
subcontractors, which could not have been prevented by good industry practice and which results in
a party (the “Affected Party”) being unable to perform or being delayed in performing in whole or in
part its obligations under this Contract. Force Majeure Events include acts of war, riot, civil
commotion, terrorism, natural disaster, epidemic, strikes, lock-outs, attacks on Guascor Energy’ IT systems
(e.g. virus attacks, hacker attacks), non-issuance of licences, permits or approvals or any other act
or failure to act by any public authority, or embargos or any other trade sanctions.
6.2 If a Force Majeure Event occurs, the Affected Party will be deemed not to be in breach of its
obligations under the Contract for so long as and to the extent necessary to overcome the effects of
the Force Majeure Event.
6.3 The Affected Party shall notify the other party as soon as reasonably practicable of the Force Majeure
Event and of its affected obligations.
6.4 If one or more Force Majeure Events and their effect last for a period of 180 days in aggregate either
party may terminate the Contract by giving to the other a written notice of termination with regard to
the part of the Works not yet provided. With regard to the part of the Works not yet provided, Guascor Energy
shall be entitled to reimbursement from the Customer of its unavoidable costs related to such
termination.
7. Obligations of the Customer
7.1 The Customer shall apply for and obtain all necessary licences, permits and approvals required for
commissioning, acceptance and use of the Works.
7.2 The provision of the Works shall be subject to the Customer providing, at its own expense and in a
timely manner, everything reasonably required to ensure that Guascor Energy' personnel are able to
commence work in time and to carry out the Works in an uninterrupted manner. For Works on Site, the
Customer shall provide, without limitation:
a) unrestricted access to the site and related infrastructure,
b) assistance with regard to obtaining required visas, work and residence permits and customs
clearance for personnel or equipment of Guascor Energy or its subcontractors,
c) all earth-moving and construction work and other ancillary services to the extent not expressly
included within Guascor Energy’ scope of Works including the necessary works, materials and tools,d) equipment, tools and materials necessary for Guascor Energy’ performance of the Works such as
scaffolding, lifting equipment etc.,
e) energy, water, internet access, heating and lighting,
f) suitable, dry and lockable rooms for the storage of materials, tools etc. and adequate working and
recreation rooms for personnel of Guascor Energy or its subcontractors, including telephone and
communication lines and appropriate sanitary facilities,
g) all necessary health and safety measures to protect the personnel and the property of Guascor Energy
and its subcontractors,
h) all necessary information concerning the location of concealed electric power, gas and water lines
or of similar installations as well as all required data concerning static and sub-surface conditions of
the Site, and
i) provide all necessary materials and equipment to start Works on Site and make sure that the
Works on Site can be started as agreed and carried out without interruption.
7.3 The Customer acknowledges that Works on Site may generate and/or uncover hazardous waste
which is subject to specific legal or regulatory requirements under applicable laws “hazardous
materials” or “hazardous waste”.
If Guascor Energy discovers hazardous materials (including asbestos), environmentally hazardous
substances, geological or geothermal conditions, archaeological findings or any other local
environmental conditions which have an adverse effect on the Works, the Customer shall be liable for
any required remediation and shall also reimburse Guascor Energy for any reasonable additional costs and
expenses. The Customer shall, at its expense, provide containers complying with all legal and
regulatory requirements and shall handle, store and dispose of hazardous waste in accordance with
the applicable laws.
7.4 Guascor Energy shall comply with the Customer’s site rules and regulations when performing Works on Site,
provided that the Customer informs Guascor Energy, in writing, of all relevant site rules and regulations in
force at the premises within a reasonable period of time prior to performance of the Works on Site.
Guascor Energy shall not be obliged to provide the Works on Site in unhealthy or dangerous surroundings. All
the necessary safety and precautionary measures shall be taken by the Customer, at no cost to
Guascor Energy, before the Works on Site commence and shall be maintained by the Customer during
Guascor Energy’ performance of the Works on Site.
The Customer shall inform Guascor Energy prior to the execution of any Works on Site about potential health
or safety risks which may originate from the Customer’s plant or equipment or may exist at Customer’s
site, including but not limited to hazardous materials which may exist in addition to those already
specifically addressed in the Contract or which may be generated or released in the course of the
Works on Site (“HS Risks”).
If a potential health or safety risk arises, then, without limiting its other rights and remedies, Guascor Energy
may suspend its work until the respective health or safety risk has been permanently eliminated, or
protective and preventive measures required by Guascor Energy have been taken by the Customer.
The Customer shall reimburse Guascor Energy all additional costs incurred by any special protective and
preventive measures as deemed necessary by Guascor Energy to deal with existing HS Risks as well as
costs resulting from the suspension. The contractual schedules, agreed dates, and other time limits
shall be adjusted accordingly.
The Customer is responsible for the health and safety conditions on site, shall comply with any
applicable laws as well as the laws, regulations and requirements of the European Union, and shall
implement and conduct a risk assessment of potential hazards for the health and safety of the
personnel on site, measures to control such risks (including suitable safety and working regulations
for the work on site, emergency and evacuation procedures, and effective medical aid systems and
resources), and potentially necessary corrective measures. Prior to their performance of any activity
on site, Customer shall provide Guascor Energy’ and its subsuppliers’ personnel with the required safety and
working regulations and related trainings. If Guascor Energy provides Customer with a safety and health
document for the site, the Customer shall comply with the regulations contained therein, including
provided updates
The Customer is responsible for ensuring that the site, including the ambient air and all parts of the
plant Guascor Energy’ employees or subcontractors may come in contact with, are free of asbestos. The
ambient air shall be deemed free of asbestos if the airborne asbestos fiber concentration does not
exceed 1,000 fibers/m³ measured with SEM or 10,000 fibers/m³ measured with PCM. Upon request by
Guascor Energy, the Customer shall certify these conditions by a licensed and independent institute. Guascor Energy
shall be entitled to perform corresponding measurements.
In case aforementioned parts or ambient air is not free of asbestos or as long as the permanent
absence of asbestos is not ensured, Guascor Energy may, without limiting its other rights and remedies,
suspend any work in affected areas and reject any delivery of asbestos-containing parts to its factory
or workshop until it is certified by a licensed and independent institute that the site and the plant are
free of asbestos. The costs of such certification and/or other expenses related to on site asbestos
shall be borne by Customer. Guascor Energy may nevertheless agree to perform certain limited scope of work
under defined protection measures to the extent determined by Guascor Energy. Guascor Energy shall be entitled to
compensation for any additional cost incurred and to a reasonable extension of time for the provision
of the Works.
7.5 For any portion of the Works performed by Guascor Energy and/or its subcontractors on a time basis, the
Customer shall confirm with Guascor Energy on a weekly basis the hours worked by Guascor Energy’ and/or its
subcontractors’ personnel.
8. Changes to the Works, Variations
8.1 Either party may at any time request in writing changes, modifications or additions to the scope of the
Works (hereinafter referred to as “Variation”). Upon receipt of a Variation request, Guascor Energy shall
provide the Customer with a written quotation for the requested Variation, specifying the effects of the
requested Variation on the Contract, including any necessary adjustment of the Contract Price, time
schedules and agreed dates, scope of the Works and any other affected provisions of the Contract.
If the Customer wishes to proceed with a requested Variation on the basis of Guascor Energy’ quotation, the
Customer shall notify Guascor Energy thereof in writing within 14 days of receipt of the quotation. Guascor Energy is
not obliged to give effect to the Variation until it has been agreed in writing by the parties.
8.2 If applicable laws, rules and regulations, engineering standards and codes of practice, and decisions
or guidance issued by courts or public authorities are amended or added to after the date of Contract
signature, Guascor Energy shall be entitled to an adjustment of the Contract, including inter alia an
adjustment of the Contract Price to reflect any additional costs to be incurred by Guascor Energy, the time
schedules and scope of Works, as necessary in order to compensate for any adverse effects or
additional requirements deriving from such changes.
Guascor Energy shall comply only with those engineering standards and codes as listed in the technical
specifications at the date of the Contract. In the event that, at any time, mandatory local codes or
standards in the country where the project is located stipulate more stringent or onerous requirements
with regard to the Works, the Customer is obliged to inform Guascor Energy accordingly and the Customer
shall (i) request a quotation from Guascor Energy specifying the effect of those more stringent requirements
on the total Contract Price, on the agreed dates for delivery of the Works, the payment and any other
provision under the Contract, and (ii) shall enter into a Variation in accordance with this Clause 8
based on such quotation.
8.3 Without prejudice to the parties’ right to request Variations, Guascor Energy may at any time make changes
to the Works without the Customer’s prior approval, provided such changes by Guascor Energy do not
adversely affect the agreed operability, functionality or technical characteristics of the Works. Guascor Energy
shall not be entitled to any additional payment, extension of time, or other adjustment of the Contract
in respect of such changes.
9. Acceptance
9.1 If the Works are subject to acceptance, the Customer shall accept the Works upon their completion
including successful performance of acceptance tests if such tests have been agreed on. In case of
partial delivery, the Customer shall accept functional parts of the Works separately upon their
completion.
9.2 If Guascor Energy notifies the Customer that the Works or a part of the Works are ready for acceptance, the
Customer shall declare the acceptance of the Works or relevant part in writing within two weeks of the
notified date. Upon expiry of the two week period the Works or relevant part of the Works shall be
deemed accepted, unless the Customer has stated and substantiated in writing legitimate grounds on
which it refuses acceptance. The acceptance shall be effective as of the date of Guascor Energy’ notification.
9.3 In any case, the Works or parts of the Works shall be deemed accepted as soon as they are put into
commercial operation or if the acceptance tests have not been carried out within 1 week after their
scheduled dates due to reasons not attributable to Guascor Energy.
9.4 The Customer shall be entitled to refuse acceptance only in case of Defects (as defined in Clause
10.1 below) in the Works which significantly affect the use of the Works. Those items shall be listed in
the acceptance record and shall be remedied by Guascor Energy within a reasonable period of time or as
agreed between the parties.
9.5 In the event performance tests, functional tests, and/or trial runs are to be carried out by Guascor Energy after
the Works have been accepted pursuant to the previous paragraphs, acceptance shall not be affected
by any failure to pass said tests.
9.6 All costs and expenses of the Customer and any third parties (other than those of Guascor Energy’ own
personnel or contractors) incurred in connection with inspections, tests, approvals, acceptance
procedures etc. shall be borne by the Customer.
10. Defects Liability
10.1 In this Contract, and subject to Clause 10.2, a defect shall mean any non-conformity of the Works with
the express terms of this Contract resulting from circumstances existing in the Works at the time of the
transfer of risk to the Customer (“Defects”).
10.2 The following shall not be Defects:
a) normal wear and tear, non-conformity resulting from excessive strain,
b) non-conformity resulting from faulty or negligent handling; non-compliance with instructions or
recommendations in operation or maintenance manuals and other documents;
c) installation, erection, modification, commissioning, or pre-commissioning, in each case not carried
out by Guascor Energy,
d) non-reproducible software errors,
e) defects which do not significantly impair the use of the respective Works.
10.3 The Customer shall notify Guascor Energy in writing of any Defects without undue delay. Upon such written
notification, Guascor Energy shall, at its option, remedy a Defect by repair, replacement, or re-performance.
Guascor Energy shall be given a reasonable period of time and opportunity to remedy the Defect. For this
purpose, the Customer shall grant Guascor Energy working access to the non-conforming Works, shall
undertake any necessary dis-assembly and re-assembly, and shall provide access to operation and
maintenance data, all at no charge to Guascor Energy. Upon Guascor Energy’ request, the Customer shall ensure
that title to the replaced defective parts shall transfer to Guascor Energy.
The Customer shall be responsible for the customs clearance in the country where the Works are
performed and further transport from the places of delivery for all equipment necessary to remedy the
Defect. Guascor Energy shall be obliged to reimburse the Customer for all such customs duties (if any)
against documentary proof and invoice.
Insofar as a part has to be merely delivered, the Customer shall immediately inspect that part and
shall notify Guascor Energy in writing of any Defects without undue delay. Customer’s claims for defects shall
be excluded for any apparent defects, if the Customer has failed to do so.
10.4 Unless otherwise agreed, the defects liability period for any part of the Works is 12 months. It starts at
the date of transfer of risk.
For replaced or repaired parts of the Works, the defects liability period is 6 months from the date of
replacement or repair, if the original defects liability period for the Works expires earlier. In any event,
the defects liability period shall end no later than 24 months from the beginning of the original defects
liability period.
Guascor Energy is not liable for any Defects unless notified in writing by the Customer to Guascor Energy before the
end of the defects liability period.
10.5 If software is defective, Guascor Energy shall only be obliged to provide the Customer with an updated
version of the software in which the Defect has been remedied when such updated version is
reasonably available from Guascor Energy or, if Guascor Energy is only licensee, from Guascor Energy’ licensor. If the
software has been modified or individually developed by Guascor Energy, Guascor Energy shall in addition provide
the Customer with a workaround or other interim corrective solution until the provision of an updated
version of the software, if such workaround or interim solution is feasible at reasonable expense and if
otherwise the Customer’s business operations would be substantially impeded.
10.6 If Guascor Energy carries out remedial work and it is ultimately not established that there was a Defect, the
Customer shall pay Guascor Energy for such remedial work including error diagnosis.
10.7 Any other liability of Guascor Energy and rights and remedies of the Customer in case of Defects in the
Works, other than those expressly stipulated in this Clause 10 or, in case Guascor Energy failed at least three
times in remedying the defect, in Clause 16.2 b), shall be excluded. All warranties, representations,
conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the
fullest extent permitted by applicable law, excluded from this Contract.
11. Intellectual Property Rights
11.1 If a third party asserts legitimate claims against the Customer that the Works infringe an IPR owned by
such third party, then subject to the following provisions of this Clause 11, Guascor Energy shall, at its option
and expense, either:
a) obtain a right to use the relevant IPR in connection with the Works; or
b) modify the Works so as not to infringe the relevant IPR; or
c) replace the infringing part of the Works.
If, in the opinion of Guascor Energy, none of the foregoing is reasonably possible, Guascor Energy may take back the
relevant part of the Works and reimburse the price for such part.
11.2 Guascor Energy’ obligation in Clause 11.1 is subject to the following conditions:
a) the Customer has immediately notified Guascor Energy in writing of the third party’s claim and furnished
Guascor Energy with a copy of each communication, notice or other action relating to the alleged
infringement;
b) the Customer does not acknowledge an infringement and provides Guascor Energy with the authority,
information and assistance reasonably required by Guascor Energy to defend or settle such claim; and
c) Guascor Energy is given sole control of the defence (including the right to select counsel), and the sole
right to settle such claim.
If the Customer ceases to use the Works or any relevant portion thereof, it shall notify the third party in
writing that this cessation of use is not an admission of IPR infringement.
11.3 Any claims of the Customer shall be excluded if the Customer (including its agents, employees or
contractors) is responsible for the IPR infringement, which shall include without limitation if the IPR
infringement was caused by specific demands of the Customer, by use of the Works for a purpose or in a manner not foreseeable by Guascor Energy, by a modification of the Works by the Customer or by use of
the Works in connection with other equipment.
11.4 This Clause 11 sets forth Guascor Energy’ entire liability for infringement of third party IPRs. Any other rights
and remedies of the Customer shall be excluded.
12. Liability
12.1 Nothing in this Contract shall exclude or limit the liability of either party for any liability which may not
be limited or excluded by law.
12.2 Guascor Energy shall in no event be liable, whether pursuant to any indemnity or in contract, tort (including
negligence and statutory duty) or otherwise: (a) for loss of profit or revenue, loss of production,
interruption of operations or loss of use, cost of capital, loss of interest, loss of information and/or data,
for claims arising from Customer’s contracts with third parties, loss of hydrocarbons, loss of power,
cost of purchased or replacement power; or (b) for any indirect or consequential damage.
12.3 Guascor Energy’ total liability, whether pursuant to any indemnity or in contract, tort (including negligence and
breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall not
exceed for loss of or damage to Customer’s property the lesser of (i) the Contract Price, (ii)
Customer’s property Construction/Erection All Risks insurance deductible, or (iii) € 500,000 per event
with an aggregate limit of € 1,000,000. Guascor Energy’ total liability arising out of or in connection with this
Contract shall not exceed the Contract Price.
12.4 Any limitations of liability set forth in this Contract shall also apply for the benefit of Guascor Energy’
subcontractors, employees, directors, agents or any other person acting for Guascor Energy.
12.5 If the Customer is not or shall not be the sole end user and ultimate owner of the Works or is procuring
them for the benefit of any kind of joint venture, the Customer shall include a clause in its contracts
with the end user, ultimate owner or joint venture participants so that Guascor Energy is given the benefit of
the indemnities, exclusions and limitations of liability in the Contract by all such users, owners or
participants (as if the user, owner or participant were the Customer) and shall indemnify Guascor Energy
against claims by them to the extent that Guascor Energy would not be liable therefor to the Customer under
the Contract if the claim had been made by the Customer.
12.6 Any rights and remedies of the Customer against Guascor Energy that are not expressly stipulated in the
Contract shall be excluded.
12.7 Guascor Energy’ liability under or in connection with this Contract shall cease upon the expiry of the defects
liability period.
12.8 The Customer shall secure that at its own cost a Construction/Erection All Risks (“CEAR”) insurance is
effected and maintained for the whole scope of site works, starting with the beginning of any site
works until the beginning of commercial operation, under which Guascor Energy, all of its affiliated companies
as well as its subcontractors involved in the scope under the contract shall be named as additional
insured parties including a waiver of subrogation . This CEAR insurance shall be extended to provide
an extended maintenance cover during Guascor Energy’ defects liability period after beginning of commercial
operation. This cover shall be in accordance with good international industrial standards applied for
projects of comparable size, with not broader exclusions and restraints as are typically required by the
international insurance market for this type of policies, and the policy shall contain all typical extension
(e.g. LEG 2/96) as are commonly provided under such type of policies. The Customer shall send a
copy of this CEAR insurance to Guascor Energy within 90 days before start of any site activities..
12.9 The Customer hereby holds Guascor Energy harmless and indemnifies Guascor Energy from all claims for pollution
and environmental impairment caused by the Work whether based on any claim of negligence on the
part of Guascor Energy, or any other cause whatsoever.
12.10 To the extent the Works include supervision, Guascor Energy is only obliged to provide correct and clear
instructions and shall not be liable for the consequences of any non-compliance with those
instructions.
13. Assignment and Sub-contracting
13.1 The Customer may not assign this Contract or any part thereof without Guascor Energy’ prior written
approval.
13.2 Guascor Energy may assign the Contract or any part of it to an affiliated company (“Affiliate”), being any legal
entity (“Company”) which directly or indirectly is controlled by Guascor Energy, controls Guascor Energy or is
controlled by a Company which directly or indirectly controls Guascor Energy.
13.3 Guascor Energy shall further be entitled to assign the whole Contract or a part of it to any third party, in the
event of a sale or other transfer of the business or a part of the business of Guascor Energy to a third party.
13.4 Guascor Energy may sub-contract parts (but not all) of the Works.
14. Confidentiality
14.1 The parties shall use any documents, know-how, data or other information provided by the other party
("Information") exclusively for the purpose of this Contract and keep the same confidential subject to
the following. The parties may disclose Information to employees of the receiving party and to third
parties who reasonably need to know such Information for the purpose of the Contract provided such
employees and third parties are bound by equivalent confidentiality obligations. The party disclosing
Information shall be held liable for a breach of such obligations by its employees or a third party.
14.2 This confidentiality obligation shall not apply to Information which
a) is or becomes part of the public domain other than by fault of the receiving party;
b) is disclosed to the receiving party in good faith by a third party who is entitled to make such
disclosure;
c) is developed independently by the receiving party without reliance on Information;
d) was known to the receiving party prior to its disclosure by the other party; or
e) is required to be disclosed by law (subject to the receiving party’s obligation to notify the disclosing
party in a timely manner of such requirement).
14.3 The Customer shall only be entitled to take photographs or videos or to otherwise record the
performance of the Works with Guascor Energy’ prior consent. In addition, only personnel of the Customer
who operate the plant shall be entitled to be present during the performance of the Works by Guascor Energy.
14.4 This confidentiality obligation shall survive the expiration or termination of this Contract for 5 years.
15. Suspension
15.1 Guascor Energy may suspend performance of its obligations under the Contract if (i) the Customer is in delay
with any payment or in providing any payment security required under this Contract for more than 30
days, (ii) the Customer fails to perform those of its obligations necessary for Guascor Energy to provide the
Works, or (iii) the Customer otherwise materially breaches the Contract.
15.2 If Guascor Energy suspends the Contract in accordance with Clause 15.1 or in the event the Customer
suspends the Contract without the express written agreement with Guascor Energy, the Customer shall
become immediately liable to pay Guascor Energy for all parts of the Works already provided. The Customer
shall further reimburse Guascor Energy all reasonable additional costs and expenses incurred as a result of
such suspension (e.g. payments to subcontractors, cost of waiting time, demobilization and
remobilization, etc.). Any contractual dates shall be extended for a reasonable period to overcome the
effects of the suspension.
16. Termination
16.1 Either party may terminate this Contract with immediate effect by written notice, if the other party
becomes bankrupt or insolvent, has a receiving order made against it or compounds with its creditors,
or carries on business under a receiver, trustee or manager for the benefit of its creditors or goes into
liquidation.
16.2 Save as provided under Clause 6.4 and Clause 16.1, the Customer may terminate the Contract only in
the circumstances set out below and in each case upon 14 days written notice to Guascor Energy:
a) in the event of delay, if the maximum liquidated damages under Clause 4.3 are payable, a
reasonable additional period of time for provision of the Works has been granted to Guascor Energy and
has expired, and within that time Guascor Energy has not provided a commitment to pay further liquidated
damages exceeding the before-mentioned maximum liquidated damages in respect of the
continuing period of delay; or
b) in the event Guascor Energy has materially breached the Contract and has not remedied the breach within
a reasonable period after receiving written notification of the breach from the Customer.
16.3 Any termination by the Customer shall not affect those parts of the Works already delivered or
performed in accordance with the Contract prior to termination. After termination of the Contract in
accordance with Clause 16.2, the Customer shall remain liable to pay Guascor Energy for all parts of the
Works already provided prior to termination. The Customer shall be entitled to compensation for the
reasonable costs incurred in excess of the Contract Price if it has had the Works completed by a third
party. For the avoidance of doubt, Clause 12 shall apply in case of termination. The right to rescind the
Contract is excluded.
16.4 Notwithstanding any other rights it may have under this Contract, Guascor Energy may terminate the Contract
a) if the Customer comes under the direct or indirect control of any competitor of Guascor Energy; or
b) if the Customer materially breached the Contract and has not remedied the breach within a
reasonable period after a notification by Guascor Energy or is in delay in making any payment or in
providing any payment security required under this Contract for more than 60 days; or
c) if the Contract has been suspended for more than 60 days.
16.5 In the event of termination by Guascor Energy, Guascor Energy shall be entitled to recover from the Customer (i) the
Contract Price less any saved or avoided expenditure and (ii) any additional cost and expenses
incurred by Guascor Energy due to such termination.
17. Dispute Resolution, Applicable Law
17.1 The Contract and any dispute or claim arising out of, or in connection with, it or its subject matter or
formation (including non-contractual disputes or claims) shall be governed by and construed in
accordance with the substantive laws of England.
17.2 If a dispute arises out of or in connection with this Contract, the responsible representatives of the
parties shall attempt, in fair dealing and good faith, to settle such dispute. Upon request of a party, a
senior management representative of each party shall participate in the negotiations. Each party shall
be entitled to terminate these attempts by written notification to the other party(-ies) at any time.
Nothing in this Clause shall limit the right of the parties to seek relief intended to preserve the status
quo or interim measures in any court of competent jurisdiction or arbitral tribunal.
17.3 The parties shall attempt to agree on a procedure for alternative dispute resolution (“ADR”) and the
applicable procedural rules (including time limits) within 14 calendar days after a termination notice
under Clause 17.2 has been received by the other side. If the parties fail to agree on such procedure
each party shall be entitled to refer the dispute to arbitration pursuant to Clause 17.4.
17.4 All disputes arising out of or in connection with the Contract which are not resolved pursuant to Clause
17.2 and 17.3 including any question regarding the termination or any subsequent amendment of the
Contract shall be finally settled in accordance with the Rules of Arbitration of the International
Chamber of Commerce (“ICC”). If the value of the total matter in dispute, including the value of any counterclaims, is less than € 1,000,000, the tribunal shall consist of one arbitrator and if the value of
the total matter in dispute is € 1,000,000 or more the tribunal shall consist of three arbitrators. If the
tribunal consists of three arbitrators, each party shall nominate one arbitrator for confirmation by the
ICC. Both arbitrators shall agree on the third arbitrator, within 30 days after their appointment. Should
the two arbitrators fail to reach agreement on the third arbitrator within the thirty-day period, the ICC
shall select and appoint the third arbitrator.
17.5 The seat of arbitration shall be London, England. The language to be used in the arbitration
proceeding shall be English. Any order for the production or disclosure of documents shall be limited
to the documents on which each party specifically relies in its submission(s).
17.6 Upon request of a party, the arbitral tribunal shall order any claiming or counterclaiming party to
provide security for the legal and other costs of any other party related to that claim or counterclaim,
by way of bank guarantee or in any other manner and upon such terms as the arbitral tribunal
considers appropriate.
18. Export Regulations
18.1 If the Customer transfers the Works (hardware and/ or software and/ or technology as well as
corresponding documentation and/ or works and services, regardless of the mode of provision, and/ or
including all kinds of technical support) provided by Guascor Energy to a third party worldwide, the Customer
shall comply with all applicable national and international (re-) export control regulations. In any event
the Customer shall comply with the (re-) export control regulations of the Federal Republic of
Germany, of the European Union and of the United States of America.
18.2 If required to conduct export control checks, the Customer, upon request by Guascor Energy, shall promptly
provide Guascor Energy with all information pertaining to a particular end customer, destination and intended
use of the Works provided by Guascor Energy, as well as any export control restrictions existing.
18.3 The Customer shall indemnify and hold harmless Guascor Energy from and against any claim, proceeding,
action, fine, loss, cost and damages arising out of or relating to any non-compliance with export
control regulations by the Customer.
19. Miscellaneous
19.1 Guascor Energy shall not be obliged to fulfill this Contract if such fulfillment is prevented by any impediments
arising out of national or international foreign trade or customs requirements or any embargoes or
other sanctions.
19.2 If any provision of this Contract is prohibited or declared invalid or unenforceable by any court or
tribunal of competent jurisdiction, this shall not affect the validity or enforceability of any other
provision. The parties shall use their reasonable efforts to substitute such provision by a legal, valid or
enforceable one with the same or a similar result.
19.3 Any amendments, changes or additions to this Contract must be made in writing in the form of a
written agreement signed by authorised representatives of both parties.
19.4 No delay or omission by either party in exercising any right, power or remedy provided by law or under
this Contract shall affect, impair or operate as a waiver of such right, power or remedy.
19.5 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes
all previous agreements, promises, assurances, warranties, representations and understandings
between them, whether written or oral, relating to its subject matter. Each party acknowledges that in
entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement,
representation, assurance or warranty (whether made innocently or negligently) that is not set out in
this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation
based on any statement in this Contract.
19.6 The parties do not intend that this Contract shall be enforceable by virtue of the Contracts (Rights of
Third Parties) Act 1999 or otherwise by any person who is not a party to this Contract, except in
relation to Guascor Energy Affiliates’ rights under this Contract. Notwithstanding that this Contract may be or
become enforceable by a person who is not a party, any and all of the terms of this Contract may be
varied, amended or modified and this Contract may be suspended, cancelled, rescinded or terminated
by agreement in writing between the parties (whether or not to the detriment of any person who is not
a party but benefits under it), without requiring notice be given to or any consent being obtained from
any such person who is not a party.
19.7 The words “including” and “includes” and any like words shall be construed without limitation to the
generality of the preceding words.
19.8 Save as otherwise stated in any other provision of this Contract, each party shall pay its own costs
and expenses in connection with the negotiation, preparation and implementation of this Contract.
19.9 Nothing in this Contract is intended to or shall operate to create a partnership or joint venture of any
kind between the parties. Neither party shall have authority to act in the name or on behalf of or
otherwise to bind the other in any way.
19.10 This Contract is drawn up in the English language. If this Contract is translated into another language,
the English language text shall in any event prevail