Care of the Works and Indemnities PDF

GENERAL CONDITIONS 17 Care of the Works and Indemnities Unless the Contract is terminated in accordance with these Conditions or otherwise, subject to Sub-Clause 17.2 [Liability for Care of the Works] the Contractor shall take full responsibility for the care of the Works, Goods and Contractor’s D...

GENERAL CONDITIONS 17 Care of the Works and Indemnities Unless the Contract is terminated in accordance with these Conditions or otherwise, subject to Sub-Clause 17.2 [Liability for Care of the Works] the Contractor shall take full responsibility for the care of the Works, Goods and Contractor’s Documents from the Commencement Date until the Date of Completion of the Works, when responsibility for the care of the Works shall pass to the Employer. If a Taking-Over Certificate is issued (or is deemed to be issued) for any Section or Part, responsibility for the care of the Section or Part shall then pass to the Employer. GUIDANCE If the Contract is terminated in accordance with these Conditions or otherwise, the Contractor shall cease to be responsible for the care of the Works from the date of termination. FORMS This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 17.1 Responsibility for Care of the Works After responsibility has accordingly passed to the Employer, the Contractor shall take responsibility for the care of any work which is outstanding on the Date of Completion, until this outstanding work has been completed. If any loss or damage occurs to the Works, Goods or Contractor’s Documents, during the period when the Contractor is responsible for their care, from any cause whatsoever except as stated in Sub-Clause 17.2 [Liability for Care of the Works], the Contractor shall rectify the loss or damage at the Contractor’s risk and cost, so that the Works, Goods or Contractor’s Documents (as the case may be) comply with the Contract. 17.2 Liability for Care of the Works The Contractor shall be liable for any loss or damage caused by the Contractor to the Works, Goods or Contractor’s Documents after the issue of a Taking-Over Certificate. The Contractor shall also be liable for any loss or damage, which occurs after the issue of a Taking-Over Certificate and which arose from an event which occurred before the issue of this Taking-Over Certificate, for which the Contractor was liable. The Contractor shall have no liability whatsoever, whether by way of indemnity or otherwise, for loss or damage to the Works, Goods or Contractor’s Documents caused by any of the following events (except to the extent that such Works, Goods or Contractor’s Documents have been rejected by the Engineer under Sub-Clause 7.5 [Defects and Rejection] before the occurrence of any of the following events): (a) (b) (c) General Conditions © FIDIC 2017 interference, whether temporary or permanent, with any right of way, light, air, water or other easement (other than that resulting from the Contractor’s method of construction) which is the unavoidable result of the execution of the Works in accordance with the Contract; use or occupation by the Employer of any part of the Permanent Works, except as may be specified in the Contract; fault, error, defect or omission in any element of the design of the Works by the Employer or which may be contained in the Specification and Drawings (and which an experienced contractor exercising due care would not have discovered when examining the Site and the Specification and Drawings before submitting the Tender), other than design carried out by the Contractor in accordance with the Contractor’s obligations under the Contract; 87 GENERAL CONDITIONS (d) (e) Subject to Sub-Clause 18.4 [Consequences of an Exceptional Event], if any of the events described in sub-paragraphs (a) to (f) above occurs and results in damage to the Works, Goods or Contractor’s Documents the Contractor shall promptly give a Notice to the Engineer. Thereafter, the Contractor shall rectify any such loss and/or damage that may arise to the extent instructed by the Engineer. Such instruction shall be deemed to have been given under Sub-Clause 13.3.1 [Variation by Instruction]. If the loss or damage to the Works or Goods or Contractor’s Documents results from a combination of: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org FORMS GUIDANCE (f) any operation of the forces of nature (other than those allocated to the Contractor in the Contract Data) which is Unforeseeable or against which an experienced contractor could not reasonably have been expected to have taken adequate preventative precautions; any of the events or circumstances listed under sub-paragraphs (a) to (f) of Sub-Clause 18.1 [Exceptional Events]; and/or any act or default of the Employer’s Personnel or the Employer’s other contractors. (i) (ii) 17.3 Intellectual and Industrial Property Rights any of the events described in sub-paragraphs (a) to (f) above, and a cause for which the Contractor is liable, and the Contractor suffers a delay and/or incurs Cost from rectifying the loss and/or damage, the Contractor shall subject to Sub-Clause 20.2 [Claims for Payment and/or EOT] be entitled to a proportion of EOT and/or Cost Plus Profit to the extent that any of the above events have contributed to such delays and/or Cost. In this Sub-Clause, “infringement” means an infringement (or alleged infringement) of any patent, registered design, copyright, trademark, trade name, trade secret or other intellectual or industrial property right relating to the Works; and “claim” means a third party claim (or proceedings pursuing a third party claim) alleging an infringement. Whenever a Party receives a claim but fails to give notice to the other Party of the claim within 28 days of receiving it, the first Party shall be deemed to have waived any right to indemnity under this Sub-Clause. The Employer shall indemnify and hold the Contractor harmless against and from any claim (including legal fees and expenses) alleging an infringement which is or was: (a) (b) 88 © FIDIC 2017 an unavoidable result of the Contractor’s compliance with the Specification and Drawings and/or any Variation; or a result of any Works being used by the Employer: (i) for a purpose other than that indicated by, or reasonably to be inferred from, the Contract, or (ii) in conjunction with any thing not supplied by the Contractor, unless such use was disclosed to the Contractor before the Base Date or is stated in the Contract. The Contractor shall indemnify and hold the Employer harmless against and from any other claim (including legal fees and expenses) alleging an infringement which arises out of or in relation to: Conditions of Contract for Construction 17.4 Indemnities by Contractor The Contractor shall indemnify and hold harmless the Employer, the Employer’s Personnel, and their respective agents, against and from all third party claims, damages, losses and expenses (including legal fees and expenses) in respect of: This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org (a) (b) 17.5 Indemnities by Employer To the extent, if any, that the Contractor is responsible for the design of part of the Permanent Works under Sub-Clause 4.1 [Contractor’s General Obligations], and/or any other design under the Contract, the Contractor shall also indemnify and hold harmless the Employer against all acts, errors or omissions by the Contractor in carrying out the Contractor’s design obligations that result in the Works (or Section or Part or major item of Plant, if any), when completed, not being fit for the purpose(s) for which they are intended under Sub-Clause 4.1 [Contractor’s General Obligations]. The Employer shall indemnify and hold harmless the Contractor, the Contractor’s Personnel, and their respective agents, against and from all third party claims, damages, losses and expenses (including legal fees and expenses) in respect of: (a) (b) General Conditions © FIDIC 2017 bodily injury, sickness, disease or death of any person whatsoever arising out of or in the course of or by reason of the Contractor’s execution of the Works, unless attributable to any negligence, wilful act or breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents; and damage to or loss of any property, real or personal (other than the Works), to the extent that such damage or loss: (i) arises out of or in the course of or by reason of the Contractor’s execution of the Works, and (ii) is attributable to any negligence, wilful act or breach of the Contract by the Contractor, the Contractor’s Personnel, their respective agents, or anyone directly or indirectly employed by any of them. bodily injury, sickness, disease or death, or loss of or damage to any property other than the Works, which is attributable to any negligence, wilful act or breach of the Contract by the Employer, the Employer’s Personnel, or any of their respective agents; and damage to or loss of any property, real or personal (other than the Works), to the extent that such damage or loss arises out of any event described under sub-paragraphs (a) to (f) of Sub-Clause 17.2 [Liability for Care of the Works]. 89 GENERAL CONDITIONS If a Party is entitled to be indemnified under this Sub-Clause, the indemnifying Party may (at the indemnifying Party’s cost) assume overall responsibility for negotiating the settlement of the claim, and/or any litigation or arbitration which may arise from it. The other Party shall, at the request and cost of the indemnifying Party, assist in contesting the claim. This other Party (and the Contractor’s Personnel or the Employer’s Personnel, as the case may be) shall not make any admission which might be prejudicial to the indemnifying Party, unless the indemnifying Party failed to promptly assume overall responsibility for the conduct of any negotiations, litigation or arbitration after being requested to do so by the other Party. GUIDANCE the Contractor’s execution of the Works; or the use of Contractor’s Equipment. FORMS (i) (ii)  GENERAL CONDITIONS The Contractor’s liability to indemnify the Employer, under Sub-Clause 17.4 [Indemnities by Contractor] and/or under Sub-Clause 17.3 [Intellectual and Industrial Property Rights], shall be reduced proportionately to the extent that any event described under sub-paragraphs (a) to (f) of Sub-Clause 17.2 [Liability for Care of the Works] may have contributed to the said damage, loss or injury. Similarly, the Employer’s liability to indemnify the Contractor, under Sub-Clause 17.5 [Indemnities by Employer], shall be reduced proportionately to the extent that any event for which the Contractor is responsible under Sub-Clause 17.1 [Responsibility for Care of the Works] and/or under Sub-Clause 17.3 [Intellectual and Industrial Property Rights] may have contributed to the said damage, loss or injury. 18 FORMS GUIDANCE 17.6 Shared Indemnities Exceptional Events This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 18.1 Exceptional Events “Exceptional Event” means an event or circumstance which: (i) (ii) (iii) (iv) An Exceptional Event may comprise but is not limited to any of the following events or circumstances provided that conditions (i) to (iv) above are satisfied: (a) (b) (c) (d) (e) (f) 18.2 Notice of an Exceptional Event 90 © FIDIC 2017 is beyond a Party’s control; the Party could not reasonably have provided against before entering into the Contract; having arisen, such Party could not reasonably have avoided or overcome; and is not substantially attributable to the other Party. war, hostilities (whether war be declared or not), invasion, act of foreign enemies; rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war; riot, commotion or disorder by persons other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors; strike or lockout not solely involving the Contractor’s Personnel and other employees of the Contractor and Subcontractors; encountering munitions of war, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity; or natural catastrophes such as earthquake, tsunami, volcanic activity, hurricane or typhoon. If a Party is or will be prevented from performing any obligations under the Contract due to an Exceptional Event (the “affected Party” in this Clause), then the affected Party shall give a Notice to the other Party of such an Exceptional Event, and shall specify the obligations, the performance of which is or will be prevented (the “prevented obligations” in this Clause). This Notice shall be given within 14 days after the affected Party became aware, or should have become aware, of the Exceptional Event, and Conditions of Contract for Construction Thereafter, the affected Party shall be excused performance of the prevented obligations for so long as such Exceptional Event prevents the affected Party from performing them. Other than performance of the prevented obligations, the affected Party shall not be excused performance of all other obligations under the Contract. However, the obligations of either Party to make payments due to the other Party under the Contract shall not be excused by an Exceptional Event. This document is restricted for distribution within the Lexis Nexis platform - NOT FOR CONTRACT USE AND NOT PRINTABLE - ORIGINAL FOR SALE AT www.fidic.org 18.3 Duty to Minimise Delay Each Party shall at all times use all reasonable endeavours to minimise any delay in the performance of the Contract as a result of an Exceptional Event. If the Exceptional Event has a continuing effect, the affected Party shall give further Notices describing the effect every 28 days after giving the first Notice under Sub-Clause 18.2 [Notice of an Exceptional Event]. The affected Party shall immediately give a Notice to the other Party when the affected Party ceases to be affected by the Exceptional Event. If the affected Party fails to do so, the other Party may give a Notice to the affected Party stating that the other Party considers that the affected Party’s performance is no longer prevented by the Exceptional Event, with reasons. 18.4 Consequences of an Exceptional Event If the Contractor is the affected Party and suffers delay and/or incurs Cost by reason of the Exceptional Event of which he/she gave a Notice under Sub-Clause 18.2 [Notice of an Exceptional Event], the Contractor shall be entitled subject to Sub-Clause 20.2 [Claims For Payment and/or EOT] to: (a) (b) 18.5 Optional Termination EOT; and/or if the Exceptional Event is of the kind described in sub-paragraphs (a) to (e) of Sub-Clause 18.1 [Exceptional Events] and, in the case of sub-paragraphs (b) to (e) of that Sub-Clause, occurs in the Country, payment of such Cost. If the execution of substantially all the Works in progress is prevented for a continuous period of 84 days by reason of an Exceptional Event of which Notice has been given under Sub-Clause 18.2 [Notice of an Exceptional Event], or for multiple periods which total more than 140 days due to the same Exceptional Event, then either Party may give to the other Party a Notice of termination of the Contract. In this event, the date of termination shall be the date 7 days after the Notice is received by the other Party, and the Contractor shall proceed in accordance with Sub-Clause 16.3 [Contractor’s Obligations After Termination]. After the date of termination the Contractor shall, as soon as practicable, submit detailed supporting particulars (as reasonably required by the Engineer) of the value of the work done, which shall include: General Conditions © FIDIC 2017 91 GENERAL CONDITIONS GUIDANCE FORMS the affected Party shall then be excused performance of the prevented obligations from the date such performance is prevented by the Exceptional Event. If this Notice is received by the other Party after this period of 14 days, the affected Party shall be excused performance of the prevented obligations only from the date on which this Notice is received by the other Party.