Contract Terminal FEED HITW_001.docx

FRONT END ENGINEERING AND DESIGN (FEED) AGREEMENT

Between

HYDRogen Import terminal wilhemshaven GmBH

as Employer

and

[__NAME__]

as Contractor

Table of contents

1. GENERAL 4

1.1. Definitions 4

1.2. Contractual Components 6

1.3. Interpretation 7

1.4. Effective Date 8

2. SERVICES 8

2.1. Level of care 8

2.2. Health Safety Security Environment - requirements 9

2.3. Scope 9

2.4. CE-requirements 9

2.5. Duty to warn 9

2.6. (Key) Personnel 10

2.7. Subcontracting 10

2.8. Performance Bond 11

2.9. Advance payment Bond 11

2.10. aModifications 12

2.11. Instructions 14

2.12. Bundestariftreuegesetz (“BTTG”) 14

[2.13. Consortium 16

3. REPORTING, COMMUNICATION AND INFORMATION 18

3.1. Reporting 18

3.2. Meetings 18

3.3. Deliverables Review Process 19

3.4. Information 20

3.5. Communication, coordination and cooperation 20

3.6. Designation and obligations and duties of the Employer's Representative 20

3.7. Designation and obligations and duties of the Contractor's Representative 21

3.8. Language 21

3.9. No discharge of responsibility 21

4. COMMENCEMENT, COMPLETION, DELAYS 21

4.1. Time of completion 21

4.2. Commencement 22

4.3. Extension of time 22

4.4. Contractual Penalty for Delay 22

5. CONTRACT PRICE, PAYMENT 24

5.1. Contract Price 24

5.2. Payment 24

5.3. VAT 25

5.4. Withholding Taxes 25

5.5. Set-off 25

6. ACCEPTANCE, DEFAULT, LIABILITIES 25

6.1. Acceptance 26

6.2. Default 26

6.3. Limitation of liability 26

7. INSURANCE 27

8. FORCE MAJEURE 29

9. SANCTIONS, ANTI-BRIBERY AND ANTI-CORRUPTION 31

10. SUSPENSION AND EARLY TERMINATION 32

10.1. Suspension 32

10.2. Termination due to Contractor's default 33

10.3. Termination due to § 133 GWB 33

10.4. Discretionary termination 33

10.5. General rules for termination 33

10.6. Confidentiality 33

11. ASSIGNMENT 34

12. MISCELLANEOUS 34

12.1. Warranties 34

12.2. Intellectual property 34

12.3. Partial Invalidity 36

12.4. Entire Agreement / Written form 36

12.5. No Implied Waiver, No forfeiture of right 36

12.6. No entitlement to further assignments 36

12.7. Costs 36

13. GOVERNING LAW AND DISPUTES 36

13.1. Governing Law 36

13.2. Jurisdiction 36

LIST OF ANNEXES 39

ANNEX 1 HSSE-SUSTAINABILITY-POLICY STATEMENT 40

ANNEX 2 SCOPE OF WORK 41

ANNEX 3 LIST OF DELIVERABLES 43

ANNEX 4 LIST OF KEY PERSONNEL 44

ANNEX 5 PERFORMANCE BOND 45

ANNEX 6 ADVANCE PAYMENT BOND 46

ANNEX 7 CHANGE REQUEST 47

ANNEX 8 COST OF VARIATIONS 48

ANNEX 9 PAYMENT SCHEDULE 49

ANNEX 10 ACCEPTANCE LOG 50

ANNEX 11 FEED Study SCHEDULE 51

ANNEX 12 CONTRACTOR’S FINAL OFFER dating from … 52

THE UNDERSIGNED

1. Hydrogen Import Terminal Wilhelmshaven GmbH, a company incorporated under the laws of Germany, HRB Düsseldorf No. [….], (hereinafter referred to as “Employer“); and
2. [Company Name] , a / public // private / company with limited liability incorporated under the laws of […] with its principal office at (postal code) [city, country, address: street and number] registered with the Trade Register of [registering authority] under the registration number [register number] hereinafter referred to as “Contractor”;

hereinafter individually referred to as a "Party" and jointly as the "Parties".

WHEREAS

1. the Employer is developing the Hydrogen Import Terminal Wilhelmshaven Terminal (HITW) Project to import ammonia and to convert it to hydrogen at its Site in Wilhelmshaven, Germany;
2. the Employer wishes to assign a Terminal-Front End Engineering Design (Terminal-FEED) to the Contractor, which assignment the Contractor is willing to accept;
3. the Terminal-FEED is required by the Employer to further develop the Project and adequately specify the technical and commercial requirements of the envisaged contracts for the engineering, procurement, installation, construction, construction management, commissioning and supervision of the works and services of/for the Plant and all of its components, as well as to obtain insight in the expected CAPEX and OPEX of the Plant;
4. the Parties wish to record their understanding in writing in this agreement (the "Agreement");

HEREBY AGREE AS FOLLOWS

GENERAL

Definitions

In this Agreement:

Contractual Components

For this Agreement the following documents shall apply in the following order of precedence:

1. The text of this Agreement

2. ANNEX 1 HSSE REQUIREMENTS

3. ANNEX 2 SCOPE OF WORK

4. ANNEX 3 LIST OF DELIVERABLES

5. ANNEX 4 LIST OF KEY PERSONNEL,

6. ANNEX 5 PERFORMANCE BOND,

7. ANNEX 6 ADVANCED PAYMENT BOND,

8. ANNEX 7 CHANGE REQUEST,

9. ANNEX 8 COST OF VARIATIONS,

10. ANNEX 9 PAYMENT SCHEDULE,

11. ANNEX 10 ACCEPTANCE LOG,

12. ANNEX 11 FEED STUDY SCHEDULE

13. ANNEX 12 CONTRACTOR’S FINAL OFFER dating from...

14. The German Civil Code (BGB), sections 631 et seq. BGB;

15. The German Commercial Code (HGB), whereas the Parties agree that section 377 HGB shall not apply and is replaced by the detailed provisions of Acceptance in this Agreement;

16. Other statutory Law.

Interpretation

1. All Annexes form an integral part of this Agreement. Supply Conditions and other General Terms and Conditions of the Employer or the Contractor, preliminary agreements or other documentation not expressly referred to in this Agreement are not part of this Agreement.
2. The Contractor has examined the Contractual Components prior to signing this Agreement for completeness, contradictions, ambiguities and other discrepancies, and has resolved any ambiguities. The Contractor hereby confirms that it has received all required information to perform the Services and has identified no contradictions in the Contractual Components with respect to the content. If contradictions, ambiguities or other discrepancies between the individual above-mentioned Contractual Components are nonetheless identified during performance of the Services by the Contractor, the Contractor shall immediately point these out to the Employer in writing and request, prior to the execution of the corresponding Services, clarification of the contradictions, ambiguities or other discrepancies in the Contractual Components and come to a decision about the extent and nature of the actual Services required. In this case, the Employer shall determine the Services to be provided by the Contractor at its equitable discretion. This shall not give rise to any rights to compensation for additional costs or adjustment of the Project Schedule after the conclusion of this Agreement.
3. Words denoting the singular include the plural and vice versa. Words denoting one gender include the other gender.
4. The words 'include', 'included' or 'including' are used to indicate that the matters listed are not a complete enumeration of all matters covered.
5. No provision of this Agreement is to be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision.

Effective Date

This Agreement shall enter into effect on the date both Parties have signed the Agreement (the "Effective Date").

SERVICES

Level of care

• • 1. The Contractor shall exercise highest skill, care and diligence in the performance of his obligations under the Agreement and shall comply with the applicable Laws of Germany and all requirements of the authorities, respect judicial decisions and base its Services on the applicable technical regulations, standards and guidelines in the current version at the date of Acceptance.
    2. If regulations are amended or judicial or governmental decisions issued between the signing of this Agreement and Acceptance, and this has an impact on the rendering of the Services, the Parties will immediately inform each other in writing on the change and consequently the Contractor will inform the Employer on the associated effects on the scope of Services without undue delay. The modification procedure pursuant to Article 2.9 will apply.
    3. The Contractor shall exercise highest care and diligence to prevent any actions or omissions which could result in a conflict with Employers best interests. This obligation shall apply to all activities of the Contractor in relation to the Employer, any Subcontractors and third parties.
    4. The Contractor warrants to the Employer that the Contractor has the expertise, know-how, the experience and the technical and financial capability to perform the Services in accordance with this Agreement and the standard of Good Industry Practice and can provide on time and sufficiently detailed Deliverables required by the Employer for obtaining permits and licenses.
    5. The Contractor is deemed to be fully conversant with the Services and to have included all necessary manpower and other resources in the Engineers offer for performing to Services until completion.

Health Safety Security Environment - requirements

The Contractor shall as a minimum adhere to the Employer's HSSE policy as set out in ANNEX 1 . The Contractor accepts these HSSE minimum requirements and undertakes to at least act accordingly in the fulfilment of its obligations pursuant to this Agreement. For the avoidance of doubt, the Contractor is allowed to apply higher safety standards throughout the performance of the Services.

Scope

The Contractor shall prepare the Deliverables set out in the ANNEX 3 List of Deliverablesin conformity with the specifications already provided for by the Employer in ANNEX 2 (Scope of Work) as well as with the stipulations of this Agreement and shall perform all activities that are required to do so ("Services").

• • 1. The Deliverables shall be fit for Purpose and in conformity with:
       1. the requirements set out in ANNEX 2 (Scope of Work);
       2. all applicable laws, regulations, codes, permits and all other requirements of the authorities, judicial decisions and third party consents;
       3. the applicable technical regulations, standards and guidelines in the current version at the date of Acceptance.
    2. The Contractor shall ensure the completeness and accuracy of the Deliverables.

CE-requirements

The Contractor shall make sure that any of the components which will be part of the Plant are designed to meet the CE requirements to certify the Plant as such with a CE – declarations of conformity as required.

Duty to warn

• • 1. The Contractor shall warn the Employer without delay if the Contractor becomes aware or if the Contractor has reason to know that the Services requested may not achieve the results envisaged by the Employer at the time of conclusion of the Agreement or may harm any other interests of the Employer.
    2. The Contractor shall take reasonable measures to ensure that the Employer understands the content of any warning.

(Key) Personnel

• • 1. The Contractor shall provide and make available all personnel as necessary to enable it to perform the Services. All personnel shall be qualified and experienced in the duties to which they are assigned.
    2. The Contractor shall take full responsibility for ensuring that no illegal laborers are employed by the Contractor and its Subcontractors for the Purpose of this Agreement. The Contractor shall in particular ensure that all its laborers working for the purpose of this Agreement, including those of commissioned Subcontractors, have all regulatory approvals and are insured accordingly.
    3. The Employer is entitled to demand the replacement of personnel for good cause, i.e., if Employer cannot reasonably be expected to continue working with said personnel (wichtiger Grund). This applies in particular if any relevant personnel does not have the necessary qualification and/or experience or personal integrity or reliability for carrying out his specific tasks. The Employer shall indicate any concerns in that regard as soon as possible to the Contractor in order to allow the Contractor to address the issue and find reasonable solutions. The Contractor undertakes at its own cost to promptly provide qualified substitutes in these cases. The agreed dates and completion dates shall remain unaffected.
    4. The Key personnel of the Contractor as set out in ANNEX 4 (Key Personnel with CV’s etc.) shall be available for the Project throughout the duration of this Agreement, including any extensions.
    5. The Contractor may only replace any of its Key Personnel in case of good cause such as chronical illness, temporary disability, termination of employment, child care periods or comparable reasons in the person of Key Personnel. The Contractor shall notify the Employer immediately about any such event. If a replacement should be necessary, the Contractor undertakes to employ new personnel with comparable or better qualifications without delay. The Employer reserves the right to reject the replacement personnel for good reason. In any case, the Contractor shall bear all costs associated with any replacement. The agreed dates and the Completion Date shall remain unaffected, unless otherwise agreed in writing.

Subcontracting

With the prior written consent of the Employer (such consent not to be unreasonably withheld), the Contractor may subcontract part of the Services to Subcontractors. The Contractor shall remain solely responsible and liable for its Subcontractors and shall indemnify Employer against any loss or damage suffered arising from any act or omission of such Subcontractors.

Performance Bond

The Contractor shall provide the Employer with a first demand performance bond for an amount of 10% of the Contract Price (as might be amended due to Modifications) in the format attached as ANNEX 5 within fifteen (15) Business Days of the Effective Date (the "Performance Bond"). The Performance Bond must be from a bank or insurance company authorized in the European Union with at least a “BBB+/Baa1” credit rating from Moody’s, Standard & Poor's or Fitch. It serves to secure all obligations of the Contractor arising from this Agreement, including the Employer’s claims for damages, reimbursement of overpayments and payment of the contractual penalties for Delay. The defences of anticipatory action, contestability, with the exception of the defence of contestability due to fraudulent misrepresentation (Section 123 BGB), and set-off are waived in the Performance Bond, the latter, however, only insofar as the Contractor's claim against the Employer is not undisputed or has not been legally established. Deposit is excluded. It must further be ensured that disputes arising from the Performance Bond shall be governed by German Law and disputes arising from it shall be conducted at the registered seat of the company of the Employer. The Performance Bond shall be returned or cancelled on request if the Acceptance of the Services has occurred and any Employer’s claims have been satisfied. Insofar as any unsatisfied claims do not reach the total amount of the guarantee or retention in accordance with § 641 Para. 3 BGB (German Civil Code), the performance guarantee shall be released accordingly or a retention shall be reduced proportionately.

If the performance bond is not provided, the Employer shall be entitled to reduce the instalment payments by 10% at a time until the guarantee amount is reached.

Advance payment Bond

The Contractor shall provide the Employer with a first demand advance payment bond for an amount of 10% of the Contract in the format attached as ANNEX 6 within fifteen (15) Business Days of the Effective Date (the "Advance Payment Bond"). The Advance Payment Bond must be from a bank or insurance company authorized in the European Union with at least a “BBB+/Baa1” credit rating from Moody’s, Standard & Poor's or Fitch. It serves to secure the advance payment according to ANNEX 8 No. 1. The defences of anticipatory action, contestability, with the exception of the defence of contestability due to fraudulent misrepresentation (Section 123 BGB), and set-off are waived in the Advance Payment Bond, the latter, however, only insofar as the Contractor's claim against the Employer is not undisputed or has not been legally established. Deposit is excluded. It must further be ensured that disputes arising from the Advance Payment Bond shall be governed by German Law and disputes arising from it shall be conducted at the registered seat of the company of the Employer. if Unless claims are asserted against the Contractor, the Advance Payment Bond shall be returned or cancelled on request after having reached the payment milestone “…….” according to ANNEX 9 No. …..

Modifications

• • 1. The Contractor shall carry out Modifications which become necessary due to changes to the Laws which apply to the Services in the generally accepted interpretation or application thereof. This obligation shall apply in respect of all amendments to the Laws which come into effect after the conclusion of this Agreement and before the date of Acceptance of the Services.
    2. The Contractor shall inform the Employer of possible Modifications, which the Contractor considers to be in the interest of the Employer. The Contractor shall further inform the Employer of any changes occurring in standards and norms, which, according to the Agreement, shall be observed in the performance of the Services.
    3. Notwithstanding Article 2.9.1, Modifications of the scope of Services after the conclusion of this Agreement shall exclusively take place via the Modification procedure set forth in this Article 2.9. The Modification procedure shall thereby prevent the scope of Services from being amended uncontrollably or unilaterally. Services which the Contractor renders outside the Modification procedure or in deviation from the agreed scope of Services will not be reimbursed and the Contractor shall not be entitled to an extension of time, unless agreed in writing otherwise. Upon request, the Contractor shall be obligated to remove them within a reasonable deadline set by the Employer; otherwise the Employer may perform the removal itself at the expense of the Contractor or cause the removal to be carried out. The Contractor shall also be liable for all damages thereby caused to the Employer.
    4. In addition to the Modifications under Article 2.9.1 (especially due to changes to the Law), the Employer may, always subject to Articles 2.9.7 and 2.9.11, request a Modification from the Contractor at any time. In particular, this includes the right of the Employer to modify planning and scheduling principles and targets and explicitly includes acceleration measures.
    5. Any Modification under this Article 2.9 shall take place, only, if it is permissible without a new procurement procedure according to the applicable provisions of procurement law, including, where applicable, Section 132 of the Act against Restraints of Competition (GWB).
    6. If the Employer requests a Modification that results in a decrease or take-out of parts of the contractual scope of Services, such request shall not constitute a termination or partial termination of this Agreement.
    7. If the Employer plans a Modification, it shall notify the Contractor stating the relevant information. The Contractor will then coordinate with the Employer to develop the necessary specifications for the Modification.
    8. When prompted by the Employer according to Article 2.9.4 or in the event of Modifications due to Article 2.9.1, the Contractor shall immediately, but no later than within 10 Business Days, submit a written supplementary offer free of charge, using the form set out in ANNEX 6 CHANGE REQUEST TEMPLATE. The supplementary offer of the Contractor shall be binding at least ninety (90) Days and must at least contain the following information:
       1. Scope of delivery and performance of the respective Modification (creating additional and/or adapting existing specifications and already issued documents);
       2. Integration of the Modification in the sequence of the Services;
       3. The amount of changes to the Contract Price taking into account the additional or reduced costs, comprising a statement of costs that is comprehensible to the Employer, including the required supporting documentation to justify the changes to the Contract Price in sufficient detail;
       4. Impact on the Time Schedule and/or Completion Date;
       5. Impact on already issued or applied for consents by authorities.
    9. If the Employer agrees to the Contractor’s supplementary offer, the Modification shall be deemed to have been bindingly agreed upon receipt of a corresponding written order from the Employer. In this case, the Contractor shall implement the change in Modification in accordance with the agreed schedule.
    10. If the Employer does not agree with the supplementary offer, it shall inform the Contractor of this, stating the relevant reasons. The Contractor shall then revise the supplementary offer, taking into account the reasons and proposed changes stated by the Employer, and submit the revised supplementary offer to the Employer for review without delay, but no later than 5 (five) Business Days after receipt of the aforementioned notification from the Employer.
    11. If the Contractor fails to notify delays in the Completion Date or in the Time Schedule caused by Modifications at the latest upon submission of its supplementary offer, an extension of the Completion Date or other contractual deadlines in the Time Schedule due to the Modification is excluded, and the contractually stipulated deadlines shall apply unchanged.
    12. The compensation for the Modification is to be calculated on the price determination basis of this Agreement, and especially on the basis of the hourly rates agreed in ANNEX 6. The claim by the Contractor, however, shall not exceed the reasonable customary local compensation. Even if the Parties have not agreed on the amount of compensation for the Modification, the Contractor shall be obliged to implement the Modification upon Employer’s demand.
    13. The request of Modifications by the Employer and the agreement to the supplementary offer for Modifications shall be made solely by the Employer’s Representative in writing. All Modifications will be documented by the Employer in a sequentially numbered Modification notification list. For Modifications the terms of this Agreement shall apply unless expressly agreed otherwise between the Parties in the notification of the Modification or subsequent claim.

Instructions

• • 1. The Employer is entitled to provide instructions to the Contractor with regard to the Services. The contractual obligations of the Contractor shall not be restricted by the instructions carried out by the Employer. If the instructions concern changes to the scope of services, it has to be proceeded in accordance with Article 2.9.
    2. If the Contractor deems the Employer’s instruction to be incorrect, inappropriate or incomplete or if the Contractor deems the consequences arising from the Employer’s instruction to be detrimental for the Employer, the Contractor shall inform the Employer accordingly in writing within five (5) Business Days of receipt of the Employer’s instruction and shall submit proposals for improvement.

Bundestariftreuegesetz (“BTTG”)

• • 1. In accordance with Section 3(1) of the BTTG, the Contractor shall guarantee the employees assigned to perform the services, for the duration of this Agreement, at least the working conditions established by the applicable statutory regulation pursuant to Section 5 of the BTTG. As long as and to the extent that no relevant regulation under Section 5 BTTG is in force or no relevant collective bargaining agreement applies, the Contractor shall guarantee the employees deployed at least the conditions provided for under the Minimum Wage Act and/or by other statutory provisions applicable to the respective employees.
    2. The Contractor shall require its subcontractors and the staffing agencies engaged by them and ensure that they comply with the relevant working conditions set forth in Section 2.11.1 and the obligations under Section 4(3) of the BTTG. Direct and indirect suppliers within the meaning of Section 2(5), second sentence, items 2 and 3, in conjunction with paragraphs 7 and 8 of the Supply Chain Due Diligence Act, are not considered subcontractors to the extent that the supplier does not fulfill an obligation of the contractor itself. Temporary employment agencies within the meaning of this Section 2.11 are those defined in Section 1(1) of the Temporary Employment Act.
    3. Unless otherwise provided in Section 10(1) of the BTTG, the Contractor is obligated to provide appropriate documentation demonstrating that it is complying with its commitment to adhere to the obligations pursuant to Section 3 of the BTTG (Tariftreueversprechen) and Clauses 2.11.1 and 2.11.2 of this Agreement, and to submit such documentation to the Prüfstelle Bundestariftreue upon request.
    4. If the Prüfstelle Bundestariftreue determines that the Contractor has committed a violation pursuant to Section 13 BTTG, the Employer is entitled to a contractual penalty against the Contractor in the amount of 0.5% of the contract value per violation. In the event of multiple such violations, the total contractual penalty shall not exceed 10% of the contract value. The Employer is not required to assert the contractual penalty before the end of the performance under this Agreement.
    5. If the Prüfstelle Bundestariftreue determines that the Contractor has committed a violation under Section 13 of the BTTG, the Employer shall, in addition to its right to a contractual penalty under Section 2.11.4, have the right to terminate the contract immediately for cause.
    6. The Contractor shall be liable, in accordance with the provisions of Section 12 BTTG, as an independent guarantor (selbständiger Bürge) for the fulfillment of the payment obligation under Section 4(1) BTTG in conjunction with Section 5(1), second sentence, item 1 BTTG by its staffing agencies, its subcontractors, and the staffing agencies engaged by them.

[Consortium

• • 1. The Contractor is a consortium consisting of ….. and …. (each a “Consortium Member”).
    2. Each Consortium Member undertakes to contribute its full entrepreneurial capacity toward achieving the purpose of the consortium and toward fulfilling the Contractor’s obligations under the Agreement, and to provide to the Consortium Member(s) mutual support. The Consortium Members shall be jointly and severally liable for the Contractor’s obligations and the Consortium Members performance under and in connection with the Agreement.
    3. Unless all Consortium Members notify the Employer in writing any payment of the Employer arising from this Agreement shall be made with discharging effect to all Consortium Members to the following bank account: [……]
    4. [….] shall be the leading Consortium Member and shall be entrusted with overall coordination of the consortium. The leading Consortium Member shall be the sole representative of the consortium with respect to the Employer and third parties. Legally binding declarations with effect for and against the consortium shall be addressed to the leading Consortium Member. Any internal restrictions on this power of attorney arising from the consortium agreement between the Consortium Members shall have no effect vis-à-vis the Employer or third parties.
    5. The power of attorney for the leading Consortium Member may only be revoked or withdrawn, and the consortium may only be terminated, for important reasons. Important reasons shall include, in particular, wilful or grossly negligent breaches of material obligations under the consortium agreement, the impossibility of performing such obligations, and serious breaches of trust (cf. Sections 712 and 723 German Civil Code (BGB)). The Employer shall only consider a revocation or withdrawal of the power of attorney as proven if, in the case of a consortium with more than two members (pursuant to Section 715 in conjunction with Section 712 BGB), the relevant written resolution of the consortium is submitted, or, in the case of a two-member consortium, evidence is provided that the written revocation or declaration of withdrawal has been received by the affected Consortium Member.
    6. The obligation to perform the Agreement shall remain unaffected by the dissolution of the consortium. The members originally participating in the consortium shall continue to be jointly and severally liable for fulfilment of these obligations; the same shall apply in the event of withdrawal from the consortium. Legally relevant facts and events shall have effect for and against all Consortium Members (cf. Sections 422–425 BGB).
    7. If the consortium is dissolved, or if a Consortium Member notifies the Employer that it has withdrawn from the consortium or that the consortium has been terminated, the Employer shall be entitled to terminate the Agreement according to Art. 10.2 after having sent a notice to the Consortium Members that it might terminate the Agreement […15] Business Days after sending the notice if neither a new consortium with partners having proven their ability to fulfil the obligations under the Agreement has been established nor a Consortium has declared and proven its willingness and ability to fulfil the Agreement as a sole contractor. If such a new consortium is established and accepted by the Employer or if one Consortium Member is accepted by the Employer as sole contractor, the Consortium Members shall ensure that the Agreement is assigned to the new consortium or the Consortium Member accepted by the Employer to become the sole contractor.]

REPORTING, COMMUNICATION AND INFORMATION

Reporting

• • 1. The Contractor shall submit to the Employer each month from the Effective Date onwards a report on the progress of the Services and any relevant information in that respect ("Progress Report"). The Contractor shall submit the Progress Report to the Employer at least three (3) Business Days prior to the next Monthly Progress Meeting set out in Article 3.2.1, which will be the cut-off date. The Monthly Progress Report must be compliant with requirements as per ANNEX 2 and shall contain the following:

General status of the project and activities

Key activities completed in the monthly period

Key activities planned in the coming monthly period

Areas of concern

List of modification requests / agreed modifications

Key meetings/ key decisions planned for the coming monthly period

Progress percentage

Time scheduling report acc. to ANNEX 2 incl.:

• A summary of completed and postponed milestone
• Status of milestones as per ANNEX 9
• A report on activities planned for the next two months, incl. planned meetings
• An updated FEED study schedule
• A critical path extract of the FEED study schedule
• Tabular of all activities that have slipped, impact on slippage on the schedule and a specific recovery plan in the event that the overall project schedule slips.

Updated Master Document Register with status of deliverables

Change Management and Log sheet

Engineering progression chart

Regular status reports on quality-related topics

• • 1. The Contractor shall furnish or cause to be furnished any other information concerning the Services which may be necessary to enable the Employer to comply with its obligations and/or any other information that the Employer may reasonably request.

Meetings

• • 1. The Employer and Contractor shall meet monthly at operational level in order to discuss the execution of the Services ("Progress Meetings") and the submitted Progress Reports pursuant to [TBD with bidder]. These Progress Meetings shall be held at the Employer’s offices in Düsseldorf or Gelsenkirchen, Germany. The Employer and Contractor may mutually agree on a different location, e.g. the Employer’s Wilhelmshaven site, for the Progress Meetings. They may also mutually agree to meet virtually instead. If necessary, more in person meetings shall take place as required by the Employer at no additional costs.
    2. Weekly management meetings shall be held between the key Contractor representatives (Project Manager, Project Controlling, Discipline Lead Engineers) Employer’s representatives.
    3. Additionally, weekly discipline meetings covering clarifications and status of the deliverables shall be held between Contractor discipline engineers and Employer peers as required.
    4. Contractor shall lead the monthly meeting as well as both the management and discipline meetings. Meeting Notes of each meeting to summarise key content, agreed actions, responsibilities and target dates will be prepared by Contractor and issued to Employer within 3 calendar days after the meeting.
    5. At the request of a Party, third parties can participate in Progress Meetings or other meetings.
    6. Participation of the Employer in a Progress Meeting, or any other meeting, or any minutes thereof, or any acts or omissions of the Employer shall under no circumstances relieve the Contractor of any of its responsibilities under this Agreement and shall not affect or limit the liability of one Party vis-à-vis the other Party in any way. The Contractor shall not be entitled to rely on any such participation, minutes or acts or omissions.

Deliverables Review Process

Contractor shall issue an overall FEED Master Document Register based on the List of Deliverables and as mentioned in the Scope of Work.

Contractor shall issue agreed IFR (Issued for Employer Review) deliverables to Employer for review. The way of issuing and receiving documents between parties and the way of provision of comments will be mutually agreed during the kick-off meeting or in any case prior to commencement of the study work.

Employer will provide comments within seven (7) calendar days of receipt. Any documents requiring broader circulation within the Employer’s organisation will have fourteen (14) calendar days from receipt of the document and will be issued as IFRx (Issued for Extended Review) subject to agreement with Contractor at the kick off meeting and as listed in the List of Deliverables. Employer will consolidate comments such that only one set of comments will be received per deliverable.

Documents identified as IFI (Issued for Information) will be provided to Employer for Information only. Employer remains the right to provide at least significant comments to these documents, but Contractor is free to immediately proceed with his design and study work after issuing the document without waiting for Employer’s comments, if any.

Information

• • 1. The Employer shall within a reasonable time give to the Contractor any other information the Contractor reasonably requires for the performance of the Services which the Employer is able to obtain. Contractor shall inform Employer sufficiently in advance if any additional information is required by a certain date in order for Contractor to meet the agreed dates.
    2. No guarantees or representations regarding any information are or shall be provided by the Employer.
    3. No acts or omissions of the Employer of whatever nature may under any circumstances be construed by the Contractor as approval, endorsement or consent in whatever way.

Communication, coordination and cooperation

• • 1. For all matters relating to this Agreement, the Parties will act in joint and close direct consultation and coordination with each other.
    2. Whenever under this Agreement a Party is obliged to notify or inform the other Party, to make a request or give his consent or approval, such communication shall be by means of a written, printed or printable communication from a Party to the other Party which identifies the sender and reaches the other Party by mail or electronic mail, addressed as follows:

to the Employer: […]

to the Contractor: […];

or shall or shall be sent by a web-based communication platform (to be agreed).

Designation and obligations and duties of the Employer's Representative

• • 1. The Employer hereby appoints [__name__] as Employer's Representative, to act on its behalf under this Agreement. The Employer shall give the Contractor written notice of the duties and authority of the Employer's Representative.
    2. The Employer's Representative shall carry out the duties assigned to him, and shall exercise the authority delegated to him by the Employer. Unless and until the Employer notifies the Contractor otherwise, the Employer's Representative shall be deemed to have the full authority of the Employer under this Agreement.
    3. If the Employer wishes to replace any person appointed as Employer's Representative, the Employer shall give the Contractor not less than fifteen (15) Business Days’ notice of the replacement's name, address, duties and authority, and of the date of its appointment.

Designation and obligations and duties of the Contractor's Representative

• • 1. The Contractor hereby appoints [__name__] as Contractor's Representative, to act on its behalf under this Agreement. The Contractor shall give the Employer written notice of the duties and authority of the Contractor's Representative.
    2. The Contractor's Representative shall carry out the duties assigned to him, and shall exercise the authority delegated to him by the Contractor. Unless and until the Contractor notifies the Employer otherwise, the Contractor's Representative shall be deemed to have the full authority of the Contractor under this Agreement.
    3. If the Contractor wishes to replace any person appointed as Contractor's Representative, the Contractor shall give the Employer not less than fifteen (15) Business Days’ notice of the replacement's name, address, duties and authority, and of the date of its appointment.

Language

All notices and other written communications pursuant to this Agreement shall be in English as long as not otherwise agreed in this Agreement.

No discharge of responsibility

No review, comment, consent or inspection of the Employer will discharge the Contractor of its responsibilities under this Agreement. Furthermore, no act or omission of the Employer shall be deemed to be an implied or explicit consent or approval.

COMMENCEMENT, COMPLETION, DELAYS

Time of completion

• • 1. The Contractor shall complete the Services ultimately on the agreed date of the overall acceptance (see section 6.1) of the FEED study. The consequences of failing to meet this date are set out in Article 4.4.
    2. The Contractor shall meet the Milestones set out in Annex 8

Commencement

The Contractor shall commence the Services on the Effective Date.

Extension of time

Modifications of the Milestones set out in Article 4.4.6 shall be determined by the Parties by mutual agreement in the Modification procedure in accordance with Article, provided that no case of suspension of the Services by the Employer is granted. The time limits for the Milestones may be extended only if and to the extent that such limits cannot be met because of unreasonable delays by the Employer in giving any instruction or taking any other actions required of the Employer or because of other causes which the Contractor including third party service providers, could not reasonably anticipate, avoid or control. No adjustment or extension of time shall be effective unless accepted in writing by the Employer. The Employer undertakes to not unreasonably withhold such acceptance of extension of time. When setting new Milestones, the Parties aim to minimize schedule deviations as much as possible, following which the Terminal-FEED Study Schedule, including follow-up dates, will be re-issued by the Contractor within five (5) Business Days in writing in consultation with the Employer In the event any claim for extension of time is not submitted in the time and manner required, the Contractor will be deemed to have waived any right to an extension of time based on such event, cause or occurrence, and will be required to meet the time limit in question.

Contractual Penalty for Delay

• • 1. If the Contractor fails to meet an interim deadline agreed in the table below, it shall forfeit for each Business Day of the delay a contractual penalty of 0.2 per cent of the remuneration attributable to the work to be performed up to the interim deadline, including amended and additional work, up to a maximum of 5 per cent of the aforementioned remuneration.
    2. In the event of non-compliance with the Completion Date agreed in the table below, the Contractor shall forfeit a contractual penalty of 0.3 per cent of the audited net final invoice amount for each Business Day of the delay. This contractual penalty is limited to a total of 5% of the audited net final invoice amount.
    3. Contractual penalties for delay in achieving different milestones (including interim milestones and the final Completion Date) shall be recoverable separately to the extent that such delays are attributable to different causes of delay. However, where the same cause of delay results in a failure to achieve both an interim milestone and any subsequent interim milestone and/or the final Completion Date, any contractual penalty accrued in respect of the earlier interim milestone shall be credited against, and shall reduce, the contractual penalty payable in respect of the subsequent interim milestone and/or the final Completion Date.
    4. The contractual penalty pursuant to Articles 4.4.1 and 4.4.2 of this Agreement shall amount to a maximum of 5% of the audited net final invoice amount.
    5. Except as stated in Clause 4.4.8, payment by Contractor of the contractual penalty for delay shall be Contractor’s sole and exclusive liability and obligation and Employer’s sole and exclusive remedy with respect to Contractor’s failure, if any, to achieve the Milestones in Clause 4.4.7, unless the Contractor has caused the delay by wilful misconduct (“Vorsatz”).
    6. The right to claim the contractual penalty may be reserved until the final payment is due.
    7. Contractual penalty table:

• • 1. Any payments made in accordance with this Article 4.4 shall not relieve the Contractor from its obligation to complete the Services. The Employer reserves the right to rescind this Agreement in accordance with the governing law if the Contractor causes delay in deliveries beyond the maximum aggregate contractual penalties for delay agreed in this Agreement.

CONTRACT PRICE, PAYMENT

Contract Price

In consideration for the completion of the Services, the Employer shall pay the Contractor a lump sum fixed price with an amount of EUR [__amount__] (the "Contract Price"). Subject to Article 2.9, all costs which have been incurred by the Contractor in connection with the Services are included in the Contract Price. If there are any amounts of changes to the Contract Price due to Modifications in accordance to the Modification procedure under Article 2.9, the Contract Price is amended accordingly.

Payment

• • 1. All Payments by the Employer to the Contractor with regard to the Contract Price shall take place in accordance with the payment schedule attached to this Agreement as ANNEX 9 (Payment schedule). The Contractor shall provide the Employer with an invoice for each instalment when such payment becomes due. Invoicing by the Contractor will take place in each case after completion of each milestone, but not prior to the due date of all preceding instalment payments. The milestones listed in the Payment Schedule depend on each other and structurally interrelate with each other. The achievement of each payment milestone requires that the progress of Services has fully accomplished all of the requirements of the preceding payment milestones.
    2. Invoices are to be designated as serial instalment payment invoices or final invoices according to their purpose and two copies of each submitted. Invoices shall comply with art 14 pa. 4 of the German VAT Act (UStG) and value-added tax shall be shown separately. Invoices shall be issued by e-mail in pdf format only and sent to:

invoice-ger@uniper.energy

Only 1 PDF to be attached to each email and only

1 invoice (including any enclosures) per PDF file.

Purchase order number shall be mentioned in all invoices. Purchase order number for this Agreement is [TBA];

• • 1. The Employer shall, upon its written approval of the invoice, arrange for payment of the relevant instalment. Unless disapproved in writing by the Employer, such payment shall be made within sixty (60) Days upon receipt of a correct invoice from the Contractor, as set out in Article 5.2.1.
    2. All payments and all amounts specified in an invoice pursuant to this Agreement shall be in Euro (EUR).

VAT

All amounts referred to in this Agreement are exclusive of any value added tax ("VAT"), unless specified otherwise. If VAT is payable on any such amount, the Employer shall pay to the Contractor an amount equal to the VAT at the rate applicable. An amount equal to VAT payable by the Employer shall only be required to be paid once the Contractor provides Employer with a valid VAT invoice in relation to that amount.

Withholding Taxes

• • 1. All payments shall be made without any withholding of or deduction for or on account of any Taxes unless such withholding or deduction is required by any applicable tax law. If a Party is so required to withhold or deduct, then that Party will:
       1. Promptly notify the other Party of such requirement;
       2. Pay to the relevant authorities the full amount required to be deducted or withheld;
       3. Promptly forward to the other Party an official receipt (or a certified copy), or other documentation reasonably acceptable, evidencing such payment to such authorities.
    2. Where a Party has been reimbursed by the other as the case may be, for payments of any Taxes made and the recipient of such reimbursement receives or is entitled to receive a refund in respect of the same Taxes (whether by way of actual receipt, credit, set-off or otherwise), the recipient of such reimbursement shall, within thirty (30) Days of receiving such refund, repay, or cause to be repaid, to the other Party a part of the reimbursement of such Taxes equal to the amount of the refund in respect of the same Taxes effectively received or enjoyed, less any reasonable costs incurred in obtaining the refund, and less any Taxes levied or leviable in respect of that refund and, if such refunds are held by the recipient, plus any interest at the Interest Rate for the time it is held in this way.

Set-off

The Employer may set-off against any sum due to the Contractor whether under this Agreement or otherwise any lawful set-off or counterclaim to which the Contractor may at any time be entitled.

ACCEPTANCE, DEFAULT, LIABILITIES

Acceptance

• • 1. The Services as well as any remedial works must be formally accepted by using the Acceptance log according to Annex ANNEX 10 . In case of disputes, the cost of these acceptance inspections, including any expert opinions, shall be borne by the Party being held responsible. Partial acceptances are not permitted. Acceptance will not be replaced either by earlier use, acceptance by a regulatory office, or by the Contractor’s notice of completion. Fictitious or implied acceptance by the Employer is excluded.
    2. The Contractor shall provide the Employer with the Deliverables according to the Scope of Work. Employer shall review and accept the Deliverables.
    3. For Acceptance the Employer shall review the Deliverables developed by Contractor within an appropriate period of time after receipt of confirmation in text form by the Contractor that the Deliverables supplied are final and complete. The Employer shall submit objections in text form to the Contractor if the Deliverables do not comply with the Scope of Work (Annex 2). The objections, if any, shall specify the shortcomings which the Employer wishes to be addressed.

Default

The Contractor shall be liable for any defaults in the performance of the Services in accordance with applicable Law.

Limitation of liability

• • 1. To the extent that this Agreement contains no express exclusions and/or limitations of liability, the statutory liability provisions apply.
    2. Neither Party shall be liable to the other Party for loss of profit, loss of business or any indirect or consequential loss or indirect or consequential damage which may be suffered by the other Party in connection with this Agreement, other than set out in Articles 4.4.
    3. Neither Party shall be liable to the other Party for damages exceeding the amount of the Contract Price (as might be amended due to Modifications) twice.
    4. The above limitation of liability shall not apply to:
    5. Contractor’s Intellectual property indemnity obligations according to Article 12.2;
    6. any claims arising out of a Party’s wilful misconduct (Vorsatz) or gross negligence;
    7. any violation of Laws;
    8. any damage caused by fraudulent concealment of a defect;
    9. any claims under the Product Liability Act (Produkthaftungsgesetz);
    10. any amounts recovered from insurance proceeds; or
    11. for death or personal injury.
    12. The Contractor’s liability towards the Employer for its undertakings shall be the same regardless of whether the undertaking is performed by the Contractor or a Subcontractor.

INSURANCE

• 1. Professional indemnity insurance

The Contractor must effect and maintain in force from the Effective Date a professional indemnity insurance to cover losses and/or damages to third parties caused by FEED Contractor in connection with the provision of the Services:

• • • 1. With an insurer which is acceptable for the Employer;
      2. with a limit of indemnity of not less than EUR 10 Mio. for each and every claim and in the annual aggregate.

The insurance cover must be maintained in full at least until five years beyond the term of this Agreement.

• 1. Third Party Liability Insurance

The Contractor shall maintain a market standard third party liability insurance for any incident or series of incidents arising out of the performance of this Agreement.

• 1. Other Insurances

As far as legally required, the Contractor shall maintain any other additional insurances (e.g. Employers Liability for UK employees).

• 1. The Contractor shall ensure that all Subcontractors effect and maintain insurances providing adequate coverage to the Subcontractors and extending the same cover or protection to the Employer as the required insurances (save to the extent that the required insurances placed by the Contractor extend to such Subcontractors). The Contractor shall indemnify and keep indemnified the Employer for any liability (including reasonable legal costs) to which the Employer is and/or shall be exposed by any failure of a Subcontractor to effect and maintain the required insurances in accordance with this Article 7.4.
  2. Evidence of insurance
     1. The FEED Contractor shall produce documentary evidence that the insurances referred to in this clause are being maintained, have not been cancelled:
        1. as soon as reasonably practicable following the date of this Agreement;
        2. as soon as reasonably practicable following any renewal of such policies;
        3. as soon as reasonably practicable after any material change to such policies; and
        4. at any other time upon, and within five (5) Business Days of, receipt of a written request from the Employer.
     2. For the purposes of this clause acceptable evidence shall include the original certificate of insurance issued by the relevant insurer and/or an original certificate of insurance issued by the relevant broker.
     3. The Contractor shall notify the Employer immediately following the cancellation, termination or non-renewal of any of the insurances referred to in this Article 7.
  3. The Contractor shall be responsible for the payment of all premiums, excesses and deductibles on all required insurances including any taxes payable thereon.
  4. The effecting and keeping in force of insurances as required by this Agreement will not relieve the Contractor from its obligations or liabilities under or in respect of this Agreement.
  5. The Contractor shall not commit (and shall procure that Subcontractors do not commit) any act and/or omission which may result in any insurance policy required to be effected under Article 7 becoming void or voidable or which may result in the insurer refusing liability under the policy and, subject always to the limitations and exclusions of liability applicable in accordance with this Agreement, shall indemnify and keep indemnified the Employer, the Employer’s personnel and any other named insured parties for any loss, damage or liability (including reasonable legal costs) suffered or incurred by the Indemnities to the extent arising from the Contractor’s breach of this Article 7.8.
  6. Should the Contractor at any time fail or refuse to provide evidence of any of such insurance policies as described in Article 7.5 or should such insurance be cancelled, terminated, not renewed or reduced in any material respect, the Employer shall have the right to procure the same coverage or to subscribe an extra coverage and the cost thereof shall be deducted from any sums due or thereafter becoming due or otherwise payable to the Contractor by the Employer.
  7. If the Contractor or any of the Subcontractors fail to effect or maintain any of the required insurances, the Contractor shall place the Employer in case of a damage or liability (including legal costs) in the same position as if the Contractor and the Subcontractors had effected and maintained all required insurances.

FORCE MAJEURE

• 1. Subject to the exclusions set out in this Article 8, a “Force Majeure Event” shall be any exceptional event or circumstances occurring within or directly affecting a site where a Party has to render its performance for the fulfilment of this Agreement which:

1. are not within the reasonable control of the Party claiming Force Majeure;
2. such Party could not reasonably foresee and thus could not have provided against;
3. having arisen, whereas such Party could not reasonably have avoided or overcome;
4. does not constitute a default according to Article 6.2; and
5. is not substantially attributable to the other Party.
   1. To the extent the conditions in the above Article 8.1 are satisfied, Force Majeure Events include:
6. acts of God, including wind, ice and other storms, lightning, floods, earthquakes;
7. volcanic eruption and landslides;
8. epidemics and pandemics. Covid 19 can only constitute a case of Force Majeure if new generally applicable official restrictions (lockdown, quarantine obligation for contact persons of infected persons or similar) are issued as a result. Increased sick leave or quarantine of infected persons due to Covid 19 does not constitute a case of Force Majeure;
9. war (whether or not declared), blockades, acts of sabotage, riots and terrorism;
10. acts or omissions of Authorities amounting to expropriation, compulsory acquisitions or seizure of the Deliverables or parts thereof;
11. explosions and fires.
    1. Force Majeure Events do not include:
12. mechanical breakdown;
13. weather conditions which should reasonably have been foreseen by the Party claiming Force Majeure and which were not unusually adverse;
14. non-availability of or increase in the cost (including as a result of currency exchange rate fluctuations) of suitably qualified and experienced labour, equipment, material or other resources, other than the non-availability of equipment due to an event that affected a Subcontractor and that, if it had happened to the Contractor hereunder, would have come within the definition of a Force Majeure Event under above in Article 8.1 and 8.2;
15. a breach or default, including the consequences of any breach or default, unless it is caused by an event of Force Majeure as defined in Articles 8.1 and 8.2;
16. economic hardship, lack of money, credit or markets; or
17. the occurrence of a risk that has been assumed by a Party to this Agreement.
    1. If either Party’s ability to perform its obligations under this Agreement is affected by a Force Majeure Event, such Party shall promptly and in any case no later than fifteen (15) Days after it has become aware of such event give written notice to the other Party. Such notice shall state detailed particulars about the nature of the event, and indicate which specific contractual obligations for which period of time it cannot fulfil or can only fulfil with delay as a result. Moreover, the Party shall indicate any action being taken to avoid or minimize its effect. The burden of establishing the occurrence of a Force Majeure Event shall be on the Party claiming Force Majeure.
    2. During the Force Majeure Event the affected Party is released from its obligation to perform. The suspension or delay of performance due to an event of Force Majeure shall be of no greater scope and no longer duration than is caused by the event of Force Majeure.
    3. The excused Party shall:
       1. use its best efforts to continue to perform its obligations under this Agreement, to cure the event excusing performance and otherwise to remedy its inability to perform as soon as possible; and
       2. give the other Party written notice as soon as the event of Force Majeure has ceased to affect the performance of the excused Party, stating when such performance will resume, which shall be as soon as possible.
    4. A Party may not invoke Force Majeure
       1. as an excuse or reason to delay or to deny the payment of any sum;
       2. if the Party seeking to invoke Force Majeure has failed to use all commercially reasonable efforts to prevent or overcome the effects of Force Majeure.
    5. If a Force Majeure Event has caused the Contractor to suspend or delay performance of any part of the Services, the Employer may by written notice to the Contractor identify and require reasonable action to be undertaken by the Contractor to remove or relieve the direct or indirect effects of Force Majeure. If the Contractor has failed to take such reasonable action, the Employer may on its own costs and after written notice to the Contractor, initiate such reasonable measures and thereafter by written notice to the Contractor require the Contractor to resume full or partial performance of the Services. To the extent the Contractor’s failure to take such measures as set forth in this Article 8.8 results in commercially reasonable expense in addition to what the Employer would have incurred, the Contractor shall reimburse such commercially reasonable additional costs to the Employer on demand.
    6. If an event of Force Majeure occurs, subject to the Contractor’s compliance with this Article 8, the Project schedule including the Payment Schedule shall be adjusted appropriately. The Contractor shall not be entitled to claim an adjustment of the Contract Price due to an event of Force Majeure.

SANCTIONS, ANTI-BRIBERY AND ANTI-CORRUPTION

• 1. For the purposes of this clause:
     1. “Sanctioned Party” means any natural or legal person that is sanctioned, restricted or designated under any applicable Sanctions Laws. This includes, but is not limited to, such person’s designation on the Consolidated list of persons, groups and entities subject to EU financial sanctions, the Consolidated List of Financial Sanctions Targets in the United Kingdom maintained by His Majesty's Treasury, or the US Specially Designated Nationals and Blocked Persons (SDN) List, as amended time to time;
     2. “Sanctions Laws” means the laws, regulations, rules, or other restrictive measures of the United Nations, European Union, United Kingdom, United States, or the Federal Republic of Germany, relating to trade sanctions, trade embargoes or other foreign trade controls, non-proliferation, anti-terrorism or similar.
  2. Each party represents and warrants that, at the date of this Agreement and throughout its duration:
     1. it is not a Sanctioned Party;
     2. it is neither controlled by nor owned fifty percent (50%) or more – either individually or in aggregate, directly or indirectly – by one or more Sanctioned Parties; and
     3. it is not acting, directly or indirectly, on behalf of or at the direction of a Sanctioned Party.
  3. Without prejudice to any other rights and remedies of a Party included in Articles 9.1 and 9.2, if the performance by a Party of any of its obligations under or in connection with this Agreement would be in violation of any applicable Sanctions Laws, or expose such Party to punitive measures under any Sanctions Laws, then such performance shall be the “Affected Obligation” and such Party shall be the “Affected Party”. The Affected Party shall, as soon as reasonably possible, give notice to the other Party of its inability to perform the Affected Obligation. The Affected Party shall not be obliged to perform such Affected Obligation, until such time as the Affected Party may lawfully discharge such obligation. The Affected Party shall use all commercially reasonable efforts to mitigate and overcome the effects of its non-performance, to the extent that this is permissible under the applicable Sanctions Laws, and does not expose it to punitive measures under any Sanctions Laws.
  4. Each Party agrees that in connection with this Agreement, they will each respectively comply with all applicable laws, rules, regulations, decrees and/or official government orders of the EU, any EU member state (including applicable OECD regulations), the UN, the UK or the US relating to anti-bribery, anti-corruption and anti-money laundering (“Applicable Laws”) and that they shall each respectively take no action which would subject the other to fines or penalties under the Applicable Laws.
  5. Each Party represents and warrants that it shall not, directly or indirectly, in connection with this Agreement:
     1. make, offer, receive or otherwise solicit any form of financial payment;
     2. offer or receive any inducement or enticement, of whatever nature; or
     3. attempt to unduly influence the proper execution of the duties of any public or government official (whether an elected official or employed civil servant of the state);

for the purpose of securing any financial gain or other advantage (including the disadvantage of any other party) either for themselves or any third party, in breach of the Applicable Laws from time to time in force.

SUSPENSION AND EARLY TERMINATION

Suspension

• • 1. The Employer has the right to suspend the provision of the Services in whole or in part. In such case the Employer and the Contractor shall discuss the consequences in order to assess to what extent continuation of the Services will be required. If that is the case, the Employer shall propose a revised Completion Date and the Contractor shall issue a revised Time Schedule. The Contractor shall be required to expedite the Services to as much as possible on request of the Employer, entitling the Contractor to compensation of the reasonable and agreed costs resulting thereof.
    2. If and when the Employer suspends the provision of the Services in whole or in part, the Contractor shall take all necessary actions to prevent or to limit damages to the Services, during the period in which the realisation of the Services is suspended. The Contractor shall liaise with the Employer to discuss the proposed action in conformity with Article 3.
    3. The Time Schedule shall be amended to reflect the period during which the provision of the Services has been suspended. If such period is longer than twenty (20) Business Days, the Services performed by the Contractor and the direct and duly documented costs reasonably incurred by the Contractor during such longer period as a result of the suspension, if any, shall be compensated by the Employer.

Termination due to Contractor's default

The Employer has the right to terminate the Agreement in whole or in part, if the Contractor fails to perform or comply in any material respect with a material obligation where such failure is not remedied within a reasonable period of notice of such breach from the Employer.

Termination due to § 133 GWB

The Employer has the right to terminate the Agreement in accordance with § 133 GWB if any of the reasons for termination in § 133 (1) GWB are fulfilled.

Discretionary termination

The Parties shall be entitled to the statutory rights of termination. If the Employer terminates the Agreement in accordance with Section 648 BGB or if the Contractor terminates the Agreement in accordance with Section 650f (5) BGB (if applicable), the Contractor shall receive, in addition to the agreed remuneration for the Services rendered in accordance with the Agreement, a final compensation of 5 % of the remuneration for all Services commissioned/called off but no longer to be rendered as a result of the termination; further claims by the Contractor are excluded.

General rules for termination

• • 1. Any termination must be made in writing in accordance with § 126 BGB.
    2. In case of termination, the Contractor shall provide the Employer with full access to all documents, records, data and other information (excepting business information of the Contractor which a successor Contractor would not require in order to complete the Services).

Confidentiality

• • 1. The Parties hereby undertake, both during and as further described in Section 10.6.3 after the complete fulfillment or termination of this Contract, to preserve the confidentiality of and not directly or indirectly reveal, report, publish, disclose or transfer or use for its own or any other purposes confidential information pertaining to either Party and this Contract (“Confidential Information”), unless the other Party has given its consent to disclose such Confidential Information or if required to do so by law or other regulations.
    2. The obligation and limitation set forth in the preceding sub-clause shall not apply to information which is:

a) at any time in the public domain other than by a breach of this Contract on the part of the Party receiving the information;

b) generally made available to third parties by the furnishing party without any restriction concerning use or disclosure; or

c) disclosed to a governmental authority, court or any other person as required by Applicable Laws, regulations, orders or decrees.

• • 1. After the complete fulfillment or termination of this Contract, the Parties have to preserve the confidentiality as described in Sections 10.6.1 and 10.6.2 for Confidential Information qualifying as a trade secret within the meaning of the German Trade Secrets Act (GeschGehG) for as long as it retains its status as a trade secret. All other Confidential Information shall be treated as confidential for a period of five (5) years after termination or complete fulfillment of the Contract.

ASSIGNMENT

In general, no Party may assign to a third party, either entirely or partially, any of its rights or obligations under this Agreement without the prior written consent of the other Party. Deviating from this rule, the Employer may transfer rights and obligations fully or partly to an affiliate within the meaning of § 15 of the German Stock Corporation Act (AktG) without seeking approval by the Contractor.

MISCELLANEOUS

Warranties

Each Party warrants that at the date of this Agreement:

1. it has the right, power and authority to enter into and exercise its rights and perform and comply with its obligations under this Agreement;
2. it has taken all action necessary to sign this Agreement;
3. its entry into, exercise of its rights and/or performance of, or compliance with, its obligations pursuant to this Agreement do not and will not violate or exceed any power granted or restriction imposed by any law to which it is subject or by any document defining its constitutions and to not and will not violate any agreement to which it is a party or which is binding on its assets; and
4. its obligations expressed to be assumed by it are legal, valid and binding.

Intellectual property

• • 1. The Parties acknowledge that the copyright in all documents prepared by or on behalf of the Contractor in connection with the Project shall, as the case may be vest in or, remain vested in the Contractor, but that all existing and future intellectual property rights of the Contractor, in connection with the Project, including but not limited to copyrights, in works concerning the Plant created by the Contractor or otherwise resulting from the Services provided by the Contractor under this Agreement (the "Engineering Results"), (the "Intellectual Property Rights") shall be vested in the Employer. For that purpose the Contractor hereby irrevocably and unconditionally assigns and transfers to the Employer its Intellectual Property Rights, which transfer is hereby accepted by the Employer. This assignment includes all rights of the Contractor relating to the Intellectual Property Rights, including but not limited to the right to exploit those, maintain their validity where applicable and take legal action – included but not limited to claiming damages – against any infringement, whether it occurred or started prior to or subsequent to the date of this Agreement.

       Notwithstanding the foregoing: (i) the Contractor may use in other engagements its general skills, know-how, and expertise, whether pre-existing or gained under this Agreement, so long as it acquires and applies such information without disclosure of Employer’s confidential information; and (ii) the Contractor shall retain all ownership rights to its trademarks and to any commercially available products of the Contractor developed independently of this Agreement that are provided to the Employer.

    2. The Contractor shall, at first request of the Employer, perform all further acts and execute any further document as the Employer deems necessary to execute and/or register the assignment of the Intellectual Property Rights.

    3. The Contractor hereby irrevocably and unconditionally waives, to the extent permitted by applicable law, all rights, that may vest in it in connection with its authorship of any copyright in the Deliverables, wherever in the world enforceable, including (without limitation) the right to be identified as the author of any such works and the right not to have such works altered. In particular the Contractor allows the Employer to use, amend and/or adapt the Deliverable and to engage third parties in applying the Deliverables.

    4. The Contractor shall fully indemnify the Employer against damages or claims arising from or incurred by reason of any (alleged) infringement of any intellectual property right of third parties by the Contractor in the performance of his obligations under this Agreement.

    5. In the event of an infringement of the Intellectual Property Rights by a third party, the Contractor shall at the Employers first request fully cooperate with the Employer in enforcing the Intellectual Property Rights against any such third party.

Partial Invalidity

In the event that a provision of this Agreement is invalid, illegal, non binding, or unenforceable (either in whole or in part), the Agreement as a whole and its remaining provisions will remain in effect. The Parties are obliged to replace the invalid/unenforceable provision from the beginning of invalidity/unenforceability, taking into account the interests of both Parties, by a commercially equivalent provision to the extent possible. The same applies to unintended gaps in the provisions.

Entire Agreement / Written form

• • 1. This Agreement constitutes the entire agreement made between the Parties and supersedes all prior agreements with regards to the Project. There are no verbal ancillary agreements.
    2. The conclusion of this Agreement as well as amendments and supplements to this Agreement require the written form, which is also fulfilled if a qualified electronic signature within the meaning of Article 26 of the European eIDAS Regulation (2014/910/EU) is used. This also applies to an amendment or cancellation of this Article.

No Implied Waiver, No forfeiture of right

1. Any waiver under this Agreement shall be given by notice to that effect.
2. Where a Party does not exercise any right under this Agreement (which includes the granting by a Party to any of the other Parties of an extension of time in which to perform its obligations under any of these provisions), this is not deemed to constitute a forfeiture of that Party's right under this Agreement.

No entitlement to further assignments

The Contractor cannot derive any rights from this Agreement to the award of further assignment of contracts as e.g. an EPCm contract.

Costs

Each of the Parties shall pay its own costs and expenses of the negotiation, preparation and completion of this Agreement.

GOVERNING LAW AND DISPUTES

Governing Law

This Agreement is to be governed by and construed in accordance with the laws of Germany excluding its conflicts of law. The Law on international sales shall not apply.

Jurisdiction

• • 1. All disputes arising out of or in connection with this Agreement, including all supplementary and amendment agreements, or concerning its validity, shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law.
    2. The arbitral proceedings shall be conducted in English. All documents delivered to or by the arbitrators shall be in English.
    3. The place of arbitration shall be Düsseldorf.
    4. The arbitral tribunal shall comprise three arbitrators.
    5. Notwithstanding the foregoing, nothing in this Article shall preclude Parties from applying for injunctive relief in summary proceedings before any competent court instead of the arbitrators.

SIGNATURES

HYDRogen Import terminal wilhemshaven

LIST OF ANNEXES

ANNEX 1 HSSE-Sustainability-Policy Statement

ANNEX 2 Scope of Work

ANNEX 3 List of Deliverables

ANNEX 4 LIST OF KEY PERSONNEL

ANNEX 5 PERFORMANCE BOND

ANNEX 6 ADVANCE PAYMENT BOND

ANNEX 7 CHANGE REQUEST TEMPLATE

ANNEX 8 COST OF VARIATIONS

ANNEX 9 PAYMENT SCHEDULE

ANNEX 10 ACCEPTANCE LOG

ANNEX 11 TERMINAL FEED STUDY SCHEDULE

ANNEX 12 CONTRACTOR’S FINAL OFFER dating from...

HSSE-SUSTAINABILITY-POLICY STATEMENT

“BP HSSE Sustainability Appendix 1 (EN)”

We herewith request the bidders to acknowledge Uniper’s HSSE Sustainability Appendix 1.

SCOPE OF WORK

”HITW-UNI-CE-ACC070-0002-Terminal-FEED Scope of Work”

LIST OF DELIVERABLES

” HITW-UNI-GE-AAB010-0001--FEED ITT List of Deliverables”

LIST OF KEY PERSONNEL

• Project/Study Manager
• Principal Engineer / Engineering Manager
• Project Engineer
• Procurement Lead
• Cost Estimation Lead
• Senior Expert / Specialist
• Lead Scheduler
• Technical discipline leads, e.g. :
  • Process Lead
  • Mechanical / Piping / Structural Lead
  • Electrical Lead
  • Civil Lead
  • I&C and telecoms Lead

PERFORMANCE BOND

ADVANCE PAYMENT BOND

CHANGE REQUEST

COST OF VARIATIONS

PAYMENT SCHEDULE

ACCEPTANCE LOG

Terminal-FEED Study SCHEDULE

CONTRACTOR’S FINAL OFFER dating from …