: CHRD/IE/RFQ-2/SA 8000/2768/2014
OBLIGATIONS OF NALCO
1.1
NALCO shall furnish information and data available with them and give such
assistance as reasonably be required by the Auditor(s) in the performance of their
services under this assignment. However, the Auditor(s) will not be relieved of his/
their obligations to complete the work due to non-availability of any information etc.
1.2
NALCO will accord approval of all reports, recommendations, tender documents and
other connected matters etc. submitted to them by the Certifying Agency/ Firm within
such reasonable time as not to delay the work of the Certifying Agency/ Firm,
provided that those are submitted to NALCO complete in all respects.
1.3
NALCO shall nominate representative(s) duly authorized to coordinate for the subject
work with the Auditor(s) and communicate on behalf of NALCO.
2.
2.1
2.2
The Certifying Agency/ Firm will exercise all reasonable skill, care and diligence in
the discharge of the services that are agreed to be performed by them under this
Contract.
3.
GUARANTEES
3.1
3.2
The Certifying Agency/ Firm shall guarantee that the work and services as specified
and described in the Contract to be developed shall be in accordance with sound and
established Audit process, using international standards, and regulations, wherever
applicable.
3.3
3.3.1 The Certifying Agency/ Firm/ Auditor(s) should complete each activity within the
time frame specified in Annexure-I
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3.3.2 In the event of the failure to adhere to the pre-determined event, Client shall deduct
towards damage at the rate of half a percent per week of delay or part thereof
subject to a maximum of 5% (Five Percent) of that event.
3.3.3 For any delays solely attributable to the Client, adequate time extension will be
given to the Certifying Agency/ Firm to the extent of delay, on application from the
Certifying Agency/ Firm. However the decision of the client is final. No damages
will be levied for such extension of time granted by the client. On the other hand if
the reason for the delay is purely attributable to the Certifying Agency/ Firm,
damage will be levied and extension of time may be granted. The extensions
granted shall not operate to relieve the Certifying Agency/ Firm from any of his
obligations under the contract.
3.3.4 The Client may without prejudice to any method of recovery, deduct the amount of
damages from any amount due to the Certifying Agency/ Firm/ Auditor(s) , under
this or under any other contract awarded by the client in his / their favor.
3.4
Liability
The Certifying Agency/ Firm shall be liable to pay for any compensation/damages
consequent of lapses/ errors/ omissions arising from the negligence on its part or on
the part of its employee.
3.5
Maximum Liability
Notwithstanding anything stated herein, Certifying Agency/ Firms total cumulative
liability due to delay as per Clause 4.3 and liability against Clause 4.4 shall be limited
to 10% of the total fee.
3.6
Consequential Losses
Neither party shall have liability for indirect damages or consequential loss including
loss of profit and / or production or revenue sustained by the other.
4.
SECRECY
4.1
The technical data and other related documents and such of those materials prepared
by or made available to the Certifying Agency/ Firm/ Auditor(s) during the execution
of the work shall not be used for any purpose other than for execution of this contract.
4.2
The Technical data and other related documents shall not be divulged and or disclosed
to a third party or used for any other purpose whatsoever without clients previous
consent in writing, except to the extent required for the execution of this contract.
4.3
Provisions of these clauses shall not be applicable for that information which are in
public domain or already in possession of the Certifying Agency/ Firm or
independently developed by the Certifying Agency/ Firm/ Auditor(s) or obtained by
the Certifying Agency/ Firm from any third party.
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5.
TERMINATION
Client may terminate this contract under the circumstances detailed below
5.1
The contract for consultancy services shall be liable for termination by the NALCO if
the conduct or performance of the Auditor(s) and /or their personnel is considered by
the NALCO to be prejudicial to its interest.
5.2
NALCO at any time, on finding that the performance of services rendered by the
Certifying Agency/ Firm under this contract is not satisfactory, will give a written
notice to the Certifying Agency/ Firm to take appropriate remedial steps. If the
remedial steps are not taken within 15 days of receipt of notice or are not to
NALCOs satisfaction, then NALCO reserves the right to terminate the contract.
5.3
Upon termination of the contract at any time for whatsoever reason by NALCO the
proportionate amount shall be payable to the Certifying Agency/ Firm for the services
performed satisfactorily as per contract, until the date of termination. However, in the
event of the contract being terminated for the reasons attributable to the Certifying
Agency/ Firm and awarded to another Certifying Agency/ Firm, the difference, if any,
shall be recovered from the Certifying Agency/ Firm and its shall be lawful for
NALCO to set-off the said difference or any other dues from and out of any payment
due from the client to the Certifying Agency/ Firm/ Auditor(s). Besides, NALCO
shall also be entitled to blacklist the Certifying Agency/ Firm for its future
transactions.
FORECLOSURE OF CONTRACT
6.1
The contract for the certification services shall be terminated by the NALCO if due to
any unforeseen circumstances which may lead to the foreclosure of the job such as
resource crunch, non availability of funds and for other administrative reasons.
NALCO shall however give 30 days prior written notice to the Certifying Agency/
Firm of the effective date of termination.
6.2
NALCO shall pay to the Certifying Agency/ Firm such amounts as shall have accrued
or become payable to them and /or unpaid on this effective date of such termination.
Certifying Agency/ Firm will be paid only for the quantum of services he has
rendered till effective date of foreclosure. NALCO shall not be liable for any other
claims like compensation for loss in profit, compensation for loss of reputation etc or
any other consequential damages claimed by the Certifying Agency/ Firm.
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7.
FORCE MAJEURE
7.1
Force Majeure herein defined is a cause which is beyond the control of the Certifying
Agency/ Firm or NALCO, which they could not foresee and which substantially
affect the performance of the assignment.
Natural phenomena including but not limited to floods, droughts, earthquake and
epidemics.
Act of any government, domestic or foreign, including but not limited to war,
declared or undeclared priorities, quarantines, embargoes.
Strikes, lock outs and sabotage.
Riots and Civil commotions.
Provided either party shall within fifteen (15) days from the occurrence of such a
cause notify the other in writing of such cause.
The Certifying Agency/ Firm or the client shall not be liable for delays in performing
the respective obligations resulting from any Force Majeure condition occurred. The
date of completion shall be extended by a reasonable time.
If the performance as a whole or part by the Certifying Agency/ Firm or any
obligations under the assignment is prevented or delayed by Force Majeure
condition for a period exceeding 120 days, the client may at his option terminate the
contract in writing.
7.2
7.3
7.4
7.5
7.6
7.7
7.8
8.
8.1.1 Informal Dispute Resolution: The parties agree to use reasonable efforts to resolve
all disputes equitably and in good faith.
8.1.2 If any dispute between the parties arises it shall in the first instance be referred in
writing to NALCO, who shall endeavor to resolve the dispute amicably and render a
decision within 30 days. The period of 30 days shall be reckoned from the date,
intimation of the dispute is received by NALCO.
8.1.3 Save as hereinafter provided, in respect of a dispute so referred, the decision of
NALCO shall be final and binding upon the parties until completion of the contract
and shall forthwith be given effect to by both the parties and the contractor shall
proceed with the execution of the contract with due diligence, whether or not either
party has sought resolution of the dispute by arbitration as hereinafter provided.
8.2
Arbitration of Dispute
8.2.1 If the Certifying Agency/ Firm is dissatisfied with the decision rendered by NALCO
or if NALCO omits or declines to render a decision within the stipulated period of 30
days stipulated in clause 8.1.2, then within a further period of 30 days, the dissatisfied
party may require by notification that the dispute be referred to arbitration in the
manner hereinafter provided. Such a notification shall be in writing and it shall be
duly served on the other party. Failure or omission to so refer the dispute for
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arbitration within the said further period of 30 days shall constitute waiver by the
dissatisfied party of the right to invoke the arbitration provision herein for dispute
resolution.
8.2.2
8.2.3
8.2.4
8.2.5
8.2.6
8.3
Except as otherwise provided in this clause, any dispute arising out of or relating to
this contract or the breach, termination or validity thereof between the parties shall be
finally settled by arbitration in accordance with the Arbitration and Conciliation Act
1996 ( the Act) .The arbitration shall be held at Bhubaneswar. The arbitration
proceedings shall be conducted and the award shall be rendered in English. The award
shall state the reasons upon which it is based. Interest, if awarded by the arbitrators
shall be at a rate not exceeding the Cash Credit rate prevailing on the date of the
award.
There shall be three arbitrators of whom each party shall appoint one. The party
requesting that the dispute be referred to arbitration shall, within 30 days of the
notification in terms of provision as above under clause 8.2.1 appoint an arbitrator as
also call upon the other party to appoint an arbitrator within 30 days . The two
arbitrators so appointed shall within 30 days of the date on which the second of them
is appointed agree on the third arbitrator who shall act as presiding arbitrator of the
tribunal.
This agreement and the rights and obligation of the parties shall remain in full force
and effect pending the award in any arbitration proceedings. Services under the
contract shall if reasonably possible, continue during the arbitration proceedings.
For the purpose of this clause, the term dispute shall include a demand or difference
of any kind whatsoever, arising out of the contract and respecting the performance of
the contract, whether during the contract period including extensions if any, or after
completion and whether before or after termination, abandonment or breach of the
contract (except as to any matter, the decision of which is specifically otherwise
provided for in contract).
The party in whose favor the award is passed shall be entitled to recover the entire
costs of arbitration from other party. The arbitrators shall indicate the above in their
award clearly.
Applicable for Public Limited Companies & Private Limited Companies
In case of any dispute or difference arising out of the contract, which cannot be
resolved mutually between client and Certifying Agency/ Firm, it shall be referred to
a Sole Arbitrator to be appointed by the CMD, NALCO. The CMD, NALCO shall
communicate/ cause to communicate, a panel of three names of persons to Certifying
Agency/Firm/ Auditor(s)/ Client in this regard within 30 (thirty) days of notice of
arbitration, for Certifying Agency/ Firm/ Client to select anyone of them to be
appointed as the Arbitrator. In case Certifying Agency/ Firm/ Client has not
communicated its selection as above within thirty days, CMD, NALCO will appoint
any one of them as a Sole Arbitrator. During the Arbitral proceedings the fees and
expenses fixed by the Arbitral tribunal shall be deposited in equal shares by both the
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parties which will be subject to the final award as to costs and as to the liabilities for
costs in the award. However, in the arbitral proceedings if either party fails to deposit
its share of the fees and expenses or deposit the said party will not be entitled to
participate in the arbitration proceedings. The Arbitrator shall give a reasoned and
speaking award. The award of the Arbitrator shall be binding on both the parties. The
venue of arbitration shall be at Bhubaneswar. In case of any vacancy another
Arbitrator will be appointed in the same manner as above. The Arbitration and
conciliation Act. 1996 and rules made therein and Indian laws shall be applicable to
this Agreement to this Agreement shall apply.
Applicable to Public Sector Undertakings
8.4
In the event of any dispute or difference relating to the interpretation and application
of the provisions of the CONTRACTORS, such disputes or differences shall be
referred by either party to the Arbitration of one of the Arbitrators in the department
of Public enterprises, to be nominated by the Secretary to the Government of India in
charge of the Bureau of Public Enterprises. The Arbitration and Conciliation Act,
1996 shall not be applicable to the arbitration under this clause. The award of the
arbitrator shall be binding upon the parties to the dispute, provided, however, any
party aggrieved by such award my make a further reference for setting aside or
revision of the award to Law Secretary, Department of Legal Affairs, Ministry of Law
and Justice, Government of India. Upon such reference, the dispute shall be decided
by the Law Secretary or the Special Secretary/ Additional Secretary when so
authorized by the Law Secretary, whose decision shall bind the parties finally and
conclusively. The parties to the disputes will share equally the cost of arbitration
intimated by the Arbitrator. The arbitrator shall give the reasoned award.
9
NORMAL SERVICE
9.2
9.3
The Certifying Agency/ Firm/ Auditor(s) shall provide all the expert technical advice and
skills which are normally required for the class of services for which he/ they are
engaged.
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The Certifying Agency/ Firm/ Auditor(s) shall take all necessary steps to ensure
confidential handling of all the matters pertaining to plans, designs, drawings,
specifications, methods and other information developed or acquired by means of this
Agreement or for, or in, the performance thereof.
The Certifying Agency/ Firm/ Auditor(s) may with the consent of the Client which
consent shall not be reasonably withheld, publish along or in conjunction with any
other person any articles, photographs or other illustrations relating to the project.
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PATENTS
The Certifying Agency/ Firm/ Auditor(s) shall indemnify the CLIENT in the event of
contingencies arising on account of infringement of patent rights and other claims by
third parties in respect design, data, drawings furnished by the Certifying Agency/
Firm/ Auditor(s).
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NON-WAIVER OF DEFAULTS
Any failure by the Client or the Certifying Agency/ Firm at any time or from time to
time to enforce observance and performance of any of the conditions of engagement
will not constitute or be deemed to be waiver of such conditions of engagement and
will not affect or impair such conditions of engagement in any way, or the right of the
Client or the Certifying Agency/ Firm at any time to avail itself of such remedies as it
may have for any breaches or breach of such conditions of engagement.
15
INDEMNITY
The Certifying Agency/ Firm/ Client as the case may be, shall at all times indemnify
and keep indemnified the other party against all suits, proceeding claims and
demands, costs, damages and expenses brought or made against the Certifying
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Agency/ Firm/ Client (as the case may be) either individually or jointly with the
Certifying Agency/ Firm/ Client (as the case may be) or which either party may
sustain or incur by reason arising out of assignment with the suppliers, contractors or
labourers in connection with the work to be done under this assignment except such
may be due to or transpire out of any private or personal dealings, acts, affairs or thing
or concerning the Certifying Agency/ Firm/ Nalco (as the case may be) or any of the
agents, employees or workers employed or working for or under the other party.
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18
INSURANCE
The Certifying Agency/ Firm will arrange for and pay the cost of personal accident
Insurance in respect of his employees assigned to the job for performance of the
obligations under the conditions of engagement.
19
ASSIGNMENT
This CONTRACT shall not be assignable by either party without the prior written
consent of the other party hereto except that this CONTRACT shall be automatically
binding upon, and inure to the benefit of, any successor of either party or any person,
firm or corporation acquiring fully or substantially all of the business and assets of
such party.
20
SUB-CONTRACT
CERTIFYING AGENCY/ FIRM shall not subcontract any part of this CONTRACT
or appoint any CERTIFYING AGENCY/ FIRM without approval of NALCO.
21
NO WAIVER OF RIGHTS
A waiver on the part of either party of any terms, provisions or conditions of this
CONTRACT shall not constitute a precedent, nor bind either party hereto a waiver of
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any succeeding breach of the same, or any other terms, provisions or conditions of
this CONTRACT.
GOVERNING LAWS
22
The laws applicable to this contract shall be the laws in force in India. The civil courts
having ordinary original civil jurisdiction over Bhubaneswar shall alone have
exclusive jurisdiction over all matters concerning this contract.
23
TAXES
23.1
23.2
24
The Client shall not be liable towards Income Tax as well as tax liability of the
Certifying Agency/ Firm and his personnel of whatever nature including variations.
Deduction of tax at source at the prevailing rate shall be effected by the client before
remittance as a statutory obligation. The TDS certificate shall be furnished by the
client.
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26
27
SOLE CONTRACT
The parties intend this CONTRACT as a complete and exclusive embodiment of the
terms of their agreement. It supersedes all prior agreements, submittal or exchange or
terms and conditions, written or oral. No discussion or prior dealings between the
parties shall be relevant to supplement, supply or explain any terms in the
CONTRACT.
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COST OF BIDDING
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The bidder shall bear all costs associated with the preparation or delivery of its Bid,
participating in discussions etc. including costs and expenses related with visits to the
site. NALCO will in no case be responsible or liable for those costs and expenses
regardless of the outcome of the bidding process.
29
LANGUAGE OF BIDS
The bid and all correspondence incidental and related to bid shall be written in
English language. Any printed literature and document submitted in any other
language shall be accompanied by authenticated English translation, in which case,
for the purpose of interpretation of the bid, English translation shall govern.
Responsibility for correctness in translation shall lie with the bidder.
30
BANKRUPTCY/LIQUIDATION
If the CERTIFYING AGENCY/ FIRM shall commit any act of bankruptcy or being a
Corporation, commence to be wound up except for reconstruction purpose, or carry
on their business under a receiver, the executors, successors or other representative in
Law of the estate of the CERTIFYING AGENCY/ FIRM or any such receiver,
liquidator, or any person in whom the Agreement may become vested shall forthwith
give notice thereof in writing to the Client, and shall for one month, during which
they shall take all reasonable steps to prevent stoppage of the services, have the option
of carrying out the Agreement subject to their providing such guarantee as may be
required by the Client but not exceeding the value of the services. The period of the
option under this clause shall be thirty (30) days only, providing that should the above
option not be exercised, the Agreement may be terminated by the Client by giving a
notice in writing to the CERTIFYING AGENCY/ FIRM.
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DURATION OF CONTRACT/AGREEMENT
Subject to any lawful prior termination of the Agreement as provided therein, the
Contract shall be for a period of 24 weeks from the effective date (date of the Fax of
Intent) or up to the date as extended by NALCO till the obligations of both parties are
fulfilled.
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