CONTRACT: TENDER 9046899
CONTRACT PROVISIONS Page 1 of 25
DRAFT CONTRACT
PART 2
CONTRACT PROVISIONS
<CONTRACTNUMBER
Table of contents
1Introduction......
1.1General......
1.2Purpose of procurement......
1.3Document Overview......
1.4Precedence of Documents......
2Scope of Delivery......
2.1General......
2.2Contractor’s system and design responsibility......
2.3System Expertise Availability......
3Test, verification and Purchaser’s approvals......
3.1Test and verification......
3.2The Purchaser’s approvals and participation......
4Time and Terms of Delivery......
4.1General......
4.2Time of Delivery......
4.3Terms of Delivery......
4.4Notification duty in case of delay......
4.5Storage of Delivered Goods......
5Warranty......
5.1Scope of warranty......
5.2Warranty Period......
6Performance Guarantees......
6.1Parent Company Guarantee......
6.2Bank guarantee......
7Price and Payment......
7.1Price......
7.2Payment conditions......
7.3Invoicing......
7.4Retention of payment......
8Transfer of title......
8.1Title to deliverables......
8.2Title to Provided Items......
9Transfer of risk......
10Subcontractors......
10.1Contractor’s right to subcontract......
10.2Transfer of terms and requirements to subcontractors......
10.3Status of subcontractors......
10.4Assignment of subcontracts......
10.5Security clearance......
11Purchaser Provided Items......
12Security agreement......
13Insurance......
14Contractor’s social responsibility......
14.1Prudence......
14.2Basic conditions for social responsibility......
15Transfer of Claims......
16Changes to the Contract......
16.1General......
16.2Change of the Contract by use of Agreement of Change......
16.3Change of the Contract by use of Change Order......
16.4Disputes regarding existence of a Change......
17Right of inspection......
18Cost control......
19Quality Assurance and Configuration Management......
19.1Quality Assurance......
19.2Configuration Management......
19.3Non Conformance......
20NATO Codification......
21Confidentiality......
22Intellectual Property Rights......
22.1The Purchaser’s right of use......
22.2Transfer of information and know how......
22.3Information to third parties......
22.4Warranty......
23Contractor’s breach of contract......
23.1Breach of contract......
23.2Purchaser’s complaint......
23.3Contractor’s notification of warranty defect......
23.4Purchaser’s right to reject defective deliveries......
23.5Purchaser’s remedy for breach of contract......
24Purchaser’s breach of contract......
24.1Breach of contract......
24.2Notification obligation......
24.3Contractor’s remedy for breach of contract......
25Infringement of the intellectual property rights of third parties......
25.1Risk and responsibilities of the parties regarding defect in title......
25.2Third party claims......
25.3Termination for defect in title......
25.4Indemnification for Infringement of third party intellectual property......
26Indemnification......
27Options......
28Cancellation......
29Force majeure......
29.1General consequence of Force Majeure......
29.2Notification of Force Majeure......
29.3Cost and schedule effect......
29.4Cancellation......
30Communication......
31Visiting routines......
32Disputes and Governing Law......
33Industrial Cooperation......
34Validity and Effective Date of Contract......
List of annexes
Annex AScope of Delivery / N/A
Annex B
Pricing and Payment Conditions
Annex C
Time and Terms of Delivery
Annex D
Points of Contact
Annex E
Specifications
Annex E-1
System Segment Specification
Annex E-2
N/A
Annex E-3
Codification Specification including Appendix A Form 5054 and Appendix B Definitions.
Annex E-3.1
Codification Data Matrix
Annex F
Statement of Work
Annex G
Provided Items (GFE) / N/A
Annex H
Parent Company Guarantee / N/A
Annex I
Definition Catalogue / N/A
Annex J
Subcontractors
Annex K
Options
Annex L
Contractor’s social responsibility
Annex M
Standard Forms
Annex M-1
General Terms for Cost Control - Form 5055
Annex M-2
Specification of Pricing Proposal – Form 5351
Annex M-3
Agreement of Change– Form 5156
Annex M-4
Request for Change - Form 5159
Annex M-5
Change order in dispute
Annex M-6
Certificate of Conformity – Form 5357
Annex M-7
Change order - Form 5157
Annex M-8
N/A
Annex M-9
N/A
Annex M-10
Quality Standard/Configuration Management – AQAP2130
Annex M-11
Quality Standard/Configuration Management – AQAP2105
Annex N
Security agreement including classification specification / N/A
Annex O
Guide for clearance of foreign citizens visiting Norway and Request for visit.
Annex P
Request for Authorisation to Proceed / N/A
1Introduction
1.1General
This Contract (“Contract”) is entered into by and between
The Norwegian Defence Logistics Organisation (“Purchaser”)
on the one side
and
[CONTRACTOR’S NAME], (“Contractor”)
on the other side.
The Purchaser and the Contractor are jointly called the “Parties”, or individually the “Party”.
1.2Purpose of procurement
The purpose of this procurement is to meet the Norwegian Armed Forces demand for Personal protection equipment (PPE) protection gear including protection suit (with protection gloves), shield, visor (face shield). The PPE is to be used within the operational area of the Infantry, Armour, Artillery, Air and Maritime forces and Engineers. The PPE will be located in all aspects of conflict from humanitarian missions to full scale war scenarios giving protection to personnel conducting explosive search. The protection gear shall be used during situations where it is necessary for additional protection.
The intended use of the material will also include training and operations both summer and winter in Norway and other potential areas where the Norwegian Armed Forces could be deployed. This can be artic, desert or tropical conditions.
The main purpose of this procurement is to replace worn out equipment.
For this purpose, the Contract covers delivery according to Annex B “Pricing and Payment Conditions” and Annex K “Options”.
1.3Document Overview
This Contract consists of the following documents:
- Signed Negotiated Contract (Form 5151)
- Contract Provisions (this document)
- Annexes specified in ”List of annexes”
1.4Precedence of Documents
In the event of any conflict between the provisions of the Contract documents, they shall be given priority in the following order:
- Signed Negotiated Contract (Form 5151)
- Contract Provisions
- Pricing and Payment Conditions, Annex B
- Terms and Time of Delivery, Annex C
- Specifications, Annex E-1 to E-3 with internal priority in this order
- Statement of Work, Annex F
- Options, Annex K
- Standard Forms, Annex M
- Other Annexes
Annexes E-1, E-3 and F state the requirements to the goods and services which are to be delivered as well as the requirements for how the work is to be performed and how it is to be verified whether the requirements to the goods and services are met or not (verification). If conflicts arise between the requirements to the goods or services on the one side, and requirements to the work or verification on the other side, the requirements to the goods and services shall always have precedence.
If technical specifications are done both in drawings and in writing, the text shall have precedence.
2Scope of Delivery
2.1General
Contractor shall deliver the Scope of Delivery as defined in Annex BPricing and Payment Conditions.
2.2Contractor’s system and design responsibility
2.2.1System responsibility
N/A
2.2.2Design Responsibility
N/A
2.3System Expertise Availability
N/A
3Test, verification and Purchaser’s approvals
3.1Test and verification
In order to verify that the requirements in Annex E Specifications are met, the Contractor shall perform verification in accordance with Annex F Statement of Work and Annex E Specifications.
3.2The Purchaser’s approvals and participation
The Contractor shall remain fully responsible and liable for the fulfilment of all its obligations under this Contract, whether or not the Purchaser has provided support to or participated in Contractor’s fulfilment. This means that any support or participation from the Purchaser in form of approval, acceptance or similar confirmation during the design, production, test, verification and delivery does not relieve the Contractor of any of its obligations. Payment of progress payments entails no approval of the basis of the invoice or of the amount of the claim.
The obligations of the Contractor stated in this Contract may only be changed by the use of the procedures in Article 16 Changes to the Contract.
4Time and Terms of Delivery
4.1General
At delivery the deliverables shall meet all the requirements of the Contract. All deliverables shall be brand new, and if relevant – cleaned – and equipped with all necessary certificates.
At delivery all deliverables shall be free and clear of all liens, claims, mortgages and other encumbrances.
4.2Time of Delivery
The Contractor shall deliver the Scope of Delivery in accordance with the delivery times as defined below and in Annex C Time and Terms of Delivery.
4.3Terms of Delivery
The Contractor shall deliver the Scope of Delivery in accordance with terms of delivery as defined below and in Annex C Time and Terms of Delivery.
4.4Notification duty in case of delay
If the Contractor has reason to believe that the Contractor may not meet any one of the milestones or any other provision of Annex C Time and Terms of Delivery, the Contractor shall promptly notify the Purchaser accordingly.
Without undue delay after serving such notice as set forth above, the Contractor shall also notify the Purchaser of the cause and length of the delay, the impact, if any, on other milestones, and the measures which the Contractor proposes to implement to avoid, recover or limit the delay. The Purchaser shall without undue delay after receiving such detailed notification, notify the Contractor of its comments, if any, to the proposed measures. The Purchaser may order the Contractor to implement additional measures if the Purchaser considers the proposed measures to be insufficient or otherwise inadequate with respect to the delay in question. If the delay notified is not caused by the Purchaser, the Contractor is responsible of the delay, and shall implement all necessary measures to avoid, recover or limit the delay.
If the delay notified in accordance with this article has been caused by the Purchaser, and the contract price or the delivery times has been affected by the delay or the implemented measures, the Contractor may claim an adjustment of the contract price or the delivery times in accordance with Article 16 Changes to the Contract. If the Contractor fails to adhere to the provisions of Article 16 Changes to the Contract, it shall not be entitled to any adjustment of the contract price or the delivery times. Nor shall the Contractor be entitled to any such adjustment if the delay, or its consequences, could have been avoided, recovered or limited if the Contractor had fulfilled all its obligations under the Contract.
4.5Storage of Delivered Goods
If the Purchaser understands, or has reasons to believe that he may not be able to take delivery according to the agreed time and place according to this Contract, he shall notify Contractor in writing without undue delay.
Purchaser may decide that Contractor shall store the goods for a period of up to 3 months from the agreed time of delivery upon Purchaser’s risk and account.
Provided that Contractor could have delivered according to the agreed time of delivery, Purchaser shall pay Contractor as if delivery has taken place according to the Contract. In case of delay in delivery on Contractor’s side, Purchaser shall pay when Contractor could have made delivery.
The Contractor shall, as soon as title to the Scope of Delivery has been transferred according to Article 8 Transfer of title, mark the delivered goods as “Property of the Norwegian Armed Forces”. The goods shall be stored separately from other deliveries, equipment, and goods.
5Warranty
5.1Scope of warranty
The Contractor warrants that all Deliverables will conform to all specifications and requirements in the Contact throughout the applicable warranty periods set out in Article5.2 Warranty Period. This means that to the extent any functional or quality defect or deficiency arises during the said Warranty Period, they shall be corrected by the Contractor.
Normal wear and tear, as well as defect or deficiency caused by incorrect operation or maintenance by the Purchaser, is excepted from the warranty. This does not apply if the Purchaser follows the maintenance and operations instructions provided by the Contractor.
5.2Warranty Period
The warranty is effective from actual date of delivery of each deliverables and spare parts for two (2) years.
From the complaint according to Article23.2Purchaser’s complaint, or notification according to Article 23.3 Contractor’s notification of warranty defect, the warranty period shall be suspended with regard to all parts affected by a defect in such a manner that they cannot be used according to their purpose until the rectification has been completed.
In any case there shall be a minimum warranty period of 12 months after rectification has been completed with regard to the replaced or repaired parts or systems and the performance of the rectification work.
6Performance Guarantees
6.1Parent Company Guarantee
N/A
6.2Bank guarantee
N/A
7Price and Payment
7.1Price
The contract price for the Scope of Delivery are stated in Annex B Pricing and Payment Conditions.
7.2Payment conditions
The Contractor shall invoice the Purchaser in accordance with the payment conditions as described in Annex B Pricing and Payment Conditions.
7.3Invoicing
The Contractor shall invoice the Purchaser in accordance with the invoice provisions in Annex B Pricing and Payment Conditions.
7.4Retention of payment
In case of breach of contract, the Purchaser may withhold payment to secure the Purchaser’s claim resulting from the breach of contract.
The Purchaser is not obligated to pay any invoiced amount if the bank guarantee according to Article 6.2 Bank guarantee, is not effective.
8Transfer of title
8.1Title to deliverables
Title to the Scope of Delivery shall be transferred (or shall be deemed to have been transferred) to the Purchasereither when the Purchaser pays for the Scope of Delivery, or receives the Scope of Delivery, or Certificate of Conformity has been signed by the Purchaser, whichever occurs first.
The transfer of title implies that the Purchaser acquires full de facto and legal rights to the Scope of Delivery.
Any part of the Scope of Delivery still in Contractor’s possession when transfer of title has taken place shall clearly be identified as Purchaser’s property and adequately separated in such a manner to ensure defeat of creditors.
Transfer of title to the Scope of Delivery shall be unconditional and shall not be subject to any security for unpaid purchases.
8.2Title to Provided Items
N/A
9Transfer of risk
The risk for the Scope of Delivery transfers to the Purchaser at delivery in accordance with the agreed Incoterm in Annex C Terms and time of delivery.
10Subcontractors
10.1Contractor’s right to subcontract
The Contractor shall not assign parts of the work related to the Scope of Delivery to subcontractors without the Purchaser‘s prior written consent. Subcontractors listed in Annex J Subcontractors have already been approved by the Purchaser.
The Purchaser has the right to attend any negotiations and progress meetings between the Contractor and any subcontractor as observer. The Contractor shall give the Purchaser notice in due time of any relevant negotiation or progress meeting with the subcontractors.
The Contactor may not amend in any substantial technical manner, any subcontract between the Contractor and a subcontractor that has been approved by the Purchaser, without the prior written consent by the Purchaser. Such consent cannot be unreasonably withheld.
10.2Transfer of terms and requirements to subcontractors
The Contractor shall ensure that all subcontracts provide the Purchaser with the same rights as under this Contract.
The Contractor shall transfer all necessary terms and requirements of this Contract to Subcontractors to ensure that the purpose of this Contract is fulfilled. In addition to technical requirements and specifications, the Contractor shall pay particular attention to transferring terms and conditions regarding:
-Codification
-Quality assurance
-Access/ inspection in connection with quality assurance, progress control, cost-control and evaluation of Subcontractors
-Changes (entitlement to demand changes, pricing of changes/ cost control/ access etc.)
-Health, Environment and Safety
-Contractor’s social responsibility
-Classified information
-Termination of the Contract
-Advertising and public information
-Claims against Contractor’s subcontractors and other contract assistants
The Contractor cannot select Subcontractors that refuse to accept these terms and requirements without the Purchaser’s written approval.
The Contractor shall, on request, provide the Purchaser with the technical information in any subcontract.
10.3Status of subcontractors
The Contractor shall remain fully responsible and liable for the fulfilment of all its obligations under the Contract, whether the Contractor has subcontracted any part of the work or not.
10.4Assignment of subcontracts
Each subcontract shall include provisions whereby the Purchaser has the right to request that the subcontract shall be assigned to the Purchaser if a situation arises where the Contractor is not able to fulfil its obligations under this Contract.
10.5Security clearance
N/A
11Purchaser Provided Items
N/A
12Security agreement
N/A
13Insurance
Contractor shall insure the part of the Scope of Delivery which has at any time been performed, including any project documents and materials which the Purchaser has paid for in advance and Provided Items which have been delivered to Contractor for its full value until the risk is transferred to Purchaser, ref Article 9 Transfer of Risk. The insurance shall cover damage, including fire damage, water damage, vandalism and theft.
The Contractor shall ensure that the Purchaser shall appear as co-insured on the insurance certificate. Further, the Contractor may not without the consent of the Purchaser negotiate with the insurance companyconcerning settlement, or make any payment to the Contractor.
The insurance shall not limit Purchaser’s right to full compensation in case of breach of contract. Contractor shall present the insurance certificate on request from Purchaser.
14Contractor’s social responsibility
14.1Prudence
Throughout the procurement process the Contractor shall ensure that former or present Armed Forces personnel do not encounter situations that place the former or present Armed Forces personnel at risk of violating non-disclosure agreements (with their former or present employer) or situations where conflicts of interest can arise. The Contractor is requested to inform the Purchaser with regards to whether such conflicts may arise. The Purchaser has the prerogative to request changes regarding which personnel that may contribute in the Contractors performance under the Contract.
The Purchaser is bound by the Public Administration Act regarding conflict of interest.
14.2Basic conditions for social responsibility
Contractor shall fulfil the basic conditions for social responsibilityas defined in Annex L Corporate Responsibility.
15Transfer of Claims
Contractor cannot transfer any outstanding claims pursuant to this Contract to any third party without Purchaser’s prior written approval.
Contractor remains responsible for all his obligations under the Contract even if Purchaser has given such approval.
16Changes to the Contract
16.1General
The terms and conditions of the Contract may only be changed if both Parties sign Form 5156 – Agreement of Change, or the Purchaser issues Form 5157 – Change Order, or the form Change order in dispute. The Contract shall normally be changed by the use of an Agreement of Change.
Neither Contractor nor the Purchaser can plead that any other statements, omissions or actions, , including minutes of meetings or correspondence, are valid changes to this Contract.
The terms and conditions of the Contract shall also apply to changes, unless the Agreement of Change or Change Order explicitly state otherwise.
The Contractor shall maintain a directory of the changes on an on-going basis, and shall on Purchaser’s request provide an updated copy thereof.
16.2Change of the Contract by use of Agreement of Change
16.2.1The Purchaser’s right to initiate a change
The Purchaser has the right to initiate a change to the Contract according to the change process described in Article 16.2.3 below.