HỢP ĐỒNG THI CÔNG MẪU CHUẨN MỰC BẰNG TIẾNG ANH NĂM 2018

FRAMEWORK SUBCONTRACT
AGREEMENT
FOR

Service Frame Purchase
BETWEEN

ABC CO., LTD

AND

XYZ

Agreement No.: 00007

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Contents

ARTICLE 1 DEFINITION.................................................................................................................................. 3
ARTICLE 2 PURCHASE ORDER ................................................................................................................... 7
ARTICLE 3 RESPONSIBILITY MATRIX .................................................................................................... 8
ARTICLE 4 TIME AND COMPLETION OF WORK ............................................................................... 13
ARTICLE 5 PRICE AND TERMS OF PAYMENT ................................................................................... 14
ARTICLE 6 COMMUNICATION AND MEETING ................................................................................. 14
ARTICLE 7 PROJECT QUALITY ................................................................................................................. 17
ARTICLE 8 MODIFICATIONS TO PROJECT AND DESIGN ............................................................. 17
ARTICLE 9 TEST AND ACCEPTANCE..................................................................................................... 18

ARTICLE 10 INSURANCE ............................................................................................................................. 18
ARTICLE 11 SOCIAL AND ENVIRONMENT RESPONSIBILITY (SER) ....................................... 19
ARTICLE 12 WARRANTIES ......................................................................................................................... 20
ARTICLE 13 FORCE MAJEURE .................................................................................................................. 22
ARTICLE 14 INTELLECTUAL PROPERTY RIGHT (IPR) ................................................................... 23
ARTICLE 15 CONFIDENTIALITY .............................................................................................................. 24
ARTICLE 16 LIQUIDATED DAMAGES .................................................................................................... 24
ARTICLE 17 INDEMNIFICATION .............................................................................................................. 25
ARTICLE 18 TERM AND TERMINATION ............................................................................................... 26
ARTICLE 19 GOVERNING LAW AND DISPUTE SETTLEMENT ................................................... 28
ARTICLE 20 PRIVACY PROTECTION AND GDPR ............................................................................. 28
ARTICLE 21 EXPORT CONTROL COMPLIANCE ................................................................................ 29
ARTICLE 22 MISCELLANEOUS ................................................................................................................. 32
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This Agreement is entered into by and between:
ABC, a company registered in Vietnam as the subsidiary of ABC, the registered office
at……………………….. (hereinafter referred to as ‘Contractor’).

AND
XYZ,
a
company
incorporated
in
Viet
Nam

with
its
registered
office
at_.............................................................................. (hereinafter referred to as ‘Subcontractor’).
WHEREAS:
A.

The Subcontractor is engaged in, amongst other activities, telecom engineering services for
telecom equipment installation and network optimization and small civil work on WORK
(brief description of Subcontractor’s business activities).

B.

The Contractor and Subcontractor wish to establish an overall contractual framework for the
provision of Products and Services as provided in this Agreement and Annexes hereto.

C.

The cooperation relationship established by this Agreement is the basis on which Contractor
may place purchase order with Subcontractor during the term of this Agreement.

Now Therefore, in consideration of the mutual obligations, representations, covenants and other
good and valuable consideration, the adequacy of which is hereby acknowledged, the Parties agree
to be bound by the following terms and conditions:

ARTICLE 1 DEFINITION
When used in this Agreement, the terms and expressions defined hereinafter between quotation
marks with a capital letter will be capitalized throughout this Agreement and shall have the meaning
hereby respectively assigned to them:

1.1

“Agreement” shall mean the present Framework Subcontract Agreement between the
Contractor and the Subcontractor, any Annex attached and any valid amendment hereto, any

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supplementary agreements and succeeding amendments thereto, defining the rights and
duties of the Parties.
1.2

“Business Day” shall mean the weekdays excluding any public holidays stipulated in the
local legislations.

1.3

“Commencement Date” shall mean the date when Contractor shall start to execute the
Project.

1.4

“Confidential Information” shall mean any and all documents, data and other information
disclosed or made available in any form whatsoever (including, but not limited to, disclosure
made in writing, orally or in the form of samples, models, computer programs, know-how or
otherwise) by the Disclosing Party to the Receiving Party, or of which the Receiving Party
has gained knowledge, as a result of this Agreement. For the avoidance of doubt,
Confidential Information shall also include any and all documents, data and information that

the Receiving Party develops or otherwise produces by aid of information received from the
Disclosing Party, including but not limited to, any test results in any form whatsoever.

1.5

“Contractor” means ABC.

1.6

“Contractor’s Project Outsourcing Manager” shall mean the person who is appointed by
the Contractor and acts as the contact and interface person between the Contractor and the
Subcontractor.

1.7

“Contractor’s WORK Representative” shall mean the person who represents the
Contractor to coordinate and supervise the WORK works.

1.8

“Employer” shall mean ABC’s client, which is one party of the Main Agreement with its
registered office situated in Vietnam.

1.9

“FAC” or “Final Acceptance Certificate” shall mean the final acceptance certificate
issued by the Employer under the Main Contract.

1.10

“FAT” or “Final Acceptance Test” shall mean the final acceptance test undertaken by the
Employer under the Main Contract.

1.11

“Force Majeure” shall mean an event which could not reasonably have been avoided by a
diligent party in the circumstances, which is beyond the reasonable control of a party and
which makes a party’s performance of its responsibilities hereunder impossible and includes,
but is not limited to, war, riots, earthquake, storm, flood, terrorist acts, confiscation or any
other action by government agencies.

1.12

“Key Personnel” shall mean Subcontractor's personnel who plays an essential role in
respect of the performance and fulfilling of the PO and Agreement during different phases

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of the Project, which includes but not limited to project manager, technical manager, quality
manager, safety manager and the team leader, quality inspector, safety principal of any
particular construction team.
1.13

“Main Agreement” shall mean the contract concluded between the Contractor and the
Employer.

1.14

“PAC” or “Preliminary Acceptance Certificate” (or Provisional Acceptance certificate as
the case may be) shall mean the preliminary/provisional acceptance certificate issued by the
Employer under the Main Contract.

1.15

“Party” shall mean, individually, the Contractor or the Subcontractor as the context requires;
“Parties” shall mean Contractor and Subcontractor collectively.

1.16

“PAT” or “Preliminary Acceptance Test” (or Provisional Acceptance Test as the case
may be) shall mean the preliminary/provisional acceptance test undertaken by the Employer
under the Main Contract.

1.17

“Personnel” shall mean all the persons involved in this Project and working for or on behalf
of the Subcontractor

1.18

“PO Value” shall mean the total sum for the actual volume of work carried out by the
Subcontractor and accepted by the Contractor under a particular PO.

1.19

“PO” or “Purchase Order” shall mean the document which sets forth the service item,
quantity, progress requirement and so on by the Contractor in accordance with Article 2.

1.20

“Products” shall mean the equipment and materials used in the Project and supplied by
the Subcontractor according to Error! Reference source not found..

1.21

“Project” shall mean the supply of Products and Service, as defined in 1.19 and 1.22, by
Subcontractor in accordance with this Agreement.

1.22

“Service” shall mean services provided by Subcontractor as per Error! Reference source
not found. including but not limited to installation, testing, training, commissioning,
technical support, warranty period maintenance, repair and replacement.

1.23

“WORK” shall mean the land and other place on, under, in or through which the Work of
this Agreement are to be executed and any other lands and places designated by the
Contractor for working space or any other purpose as may be specifically stipulated in this
Agreement as forming part of the WORK.

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1.24

“Specifications” shall mean the technical specifications provided by Contractor according
to Error! Reference source not found..

1.25

“Subcontractor’s Project Manager” shall mean the project manager appointed and fully
authorized by the Subcontractor to act in its name and on its behalf under this Agreement.

1.26

“Unit Price” shall mean the price which is set against each of the items in Error! Reference
source not found. and represents the inclusive price for all the work in that item.

1.27

“Work” shall mean s the work specified in Error! Reference source not found. and to be
executed and completed by the Subcontractor in accordance with this Agreement.

1.28

“Other ABC Matters” means



1.29

1.30

1.31

any existing or potential business activity of the ABC Group and
the transfer of any other goods or services by or to the Subcontractor Group to, from,
for or on behalf of the ABC Group other than under this Agreement.

“Subcontractor Group” means, collectively or individually,


the Subcontractor and its affiliates (including other companies sharing a common
control person or companies under the control of Subcontractor) and



its and their agents, directors, employees, officers, other third party representatives and
subcontractors.

“Restricted Party” means an individual or entity that is identified on (or owned, controlled
or acting on behalf of an individual or entity identified on):



the United Nations Security Council Sanctions List, as applicable,
the European Union’s List of Persons, Groups and Entities Subject to Financial
Sanctions, as applicable,



the United States’ Specially Designated Nationals and Blocked Persons List,



the United States’ Denied Persons List or Entity List (except activities with these
parties that are in full compliance and have been approved in advance and in writing by
ABC’s Chief Export Compliance Officer) or



another list of individuals and/or entities maintained by any other government or
country having jurisdiction over the ABC Group, the Subcontractor Group or the
performance of this Agreement that makes the performance of the Agreement unlawful
without first obtaining a license or other authorization from that government.

“Restricted Regions” means


the Crimea region, Cuba, Iran, North Korea, Sudan, Syria and

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

1.32

any other region or country that becomes subject to comprehensive economic sanctions
imposed by the People’s Republic of China, the United Nations, the European Union,
the United States of America or any government having jurisdiction over the ABC
Group, the Subcontractor Group or the performance of this Agreement.

“Significant Compliance Risk” means an act, omission or event that, in connection with
this Agreement or Other ABC Matters, is reasonably likely to cause


the information, representations, warranties, covenants and certifications (including any
certifications made pursuant to this Section) of the Subcontractor Group to be or
become inaccurate or insufficient at the time given or made or at any time thereafter
until the end of the term of this Agreement or



1.33

the ABC Group or the Subcontractor Group to violate any economic sanctions or
export/reexport controls of the People’s Republic of China, the United Nations, the
European Union, the United States of America or any government having jurisdiction
over the ABC Group, the Subcontractor Group or the performance of this Agreement.

“ABC Group” means, collectively or individually, its wholly-owned subsidiaries, its
controlled affiliates (including all joint ventures or business partnerships that are 50% or
more owned, directly or indirectly, ABC and the employees (including directors and officers)
acting in their official capacities, agents and other third party representatives of any of them.

ARTICLE 2 PURCHASE ORDER
2.1

This Agreement is not an exclusive agreement and shall not restrain Contractor from
concluding the same or similar agreement with any third parties. Any and all of the
Contractor’s purchases of Products and/or Services from the Subcontractor under this

Agreement is subject to the Contractor’s issuance of PO to the Subcontractor as a
confirmation.

2.2

The Subcontractor shall not reject the Contractor’s PO under this Agreement. Subcontractor
shall duly sign and return the PO to the Contractor within three (3) Days from the date of
PO issuance, beyond which period, the Subcontractor shall be deemed to have rejected the
PO and the Contractor reserves the right to rescind the PO in question.

2.3

The Subcontractor shall perform the Work specified in this Agreement after receiving a PO
which normally details work quantity and the time for starting and completion of the Work.
If Commencement Date is absent in the PO, the date of receiving the relevant PO by the
Subcontractor shall be deemed as the Commencement Date of the Work. The Subcontractor
shall be paid only for actual quantities of Work completed and accepted.

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2.4

In case of any discrepancies between this Agreement and the PO, the provisions of this
Agreement shall prevail.

ARTICLE 3 RESPONSIBILITY MATRIX
3.1

Responsibility of Contractor
Contractor shall supply relevant and necessary technical drawings and specifications as
well as other documents required for this Project;

3.2
3.2.1

Responsibility of Subcontractor
Subcontractor’s General Responsibilities:
a) Subcontractor shall execute and complete the Work in accordance with the Error!
Reference source not found. and supply Products strictly following Error! Reference
source not found. and shall remedy any defect of the Products and Services (if any).
When completed, the Work shall be fit for the purposes for which the Work is
intended under this Agreement.
b) During the whole period of this Agreement, the Subcontractor shall not, directly or
indirectly enter into any exclusive agreement or contract with a third party, under
which the Subcontractor is contractually prevented from providing service or products
to Contractor or to the parent company, affiliates, subsidiaries or associates of the
Contractor.
c) Subcontractor shall provide all the documents specified in this Agreement, and all
personnel, goods, instruments, consumables and other things and Services, whether of
a temporary or permanent nature, required in and for design, execution, completion
and remedying of defects.
d) All Works carried out by the Subcontractor shall satisfy the Contractor’s requirement
as specified in this Agreement or implied otherwise; Subcontractor shall ensure all
WORK works, operations and construction methods are safe and complete.
e) Subcontractor shall, whenever required by the Contractor, submit details of the
arrangements and methods which the Subcontractor proposes to adopt for the
execution of the Work. Subcontractor shall not make any changes to these

arrangements and methods without prior written consent of Contractor.

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f)

Subcontractor shall submit the work documents for approval and counter-signed by
Contractor for the acceptance of the Project. Upon completion of the acceptance,
Subcontractor shall hand over all the acceptance documents including but not limited
to the drawings, Project and testing records to Contractor. If Contractor has any
comments on the above documents, Subcontractor will incorporate such comments
and submit a newly revised version for Contractor’s approval.

g) Subcontractor shall duly submit daily and weekly reports on the progress of the Project
as required by the Contractor and shall be responsible for the authenticity of the
reports.
h) Subcontractor shall promptly notify Contractor of any error, omission, fault or other
defect in the design or specifications for the Work upon its first awareness or
knowledge of such occurrence.
i)

Subcontractor shall be responsible for recording and promptly reporting problems
found in the Project or reported by the Employer during the Work to Contractor’s
WORK Representative in twenty-four (24) hours.

j)

Subcontractor shall provide all its Personnel with necessary tools, equipment and
facilities to ensure their health and safety while they are present at the workplace of
this Project. Proper work methods, procedures and personal protection measures shall
be adopted and strictly observed by Subcontractor.

k) Subcontractor shall advise, instruct and train (if necessary) all its Personnel to strictly
follow the mandatory health and safety rules of the workplace. Subcontractor is liable
for any damage and/or loss resulted from any safety incidents except such damage
and/or loss is evidenced to be solely caused by Contractor’s gross negligence.
3.2.2

Subcontractor’s Personnel
a) Subcontractor shall appoint a Subcontractor’s Project Manager and shall fully
authorize this position so as to enable its Project Manager to act on the Subcontractor’s
behalf under this Agreement.
b) Subcontractor shall, prior to the Commencement Date, submit the name list and
relevant particulars, such as resumes and contact details of its Key Personnel
(including the project manager, regional manager, quality manager, construction team
leader, and security manager) to Contractor for approval. When in possession of

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Contractor’s written consent of these Key Personnel, Subcontractor shall issue written
appointment to such Key Personnel. If such consent is withheld or subsequently
revoked by the Contractor, or if the appointed person fails to act as this position as
judged by contractor, the Subcontractor shall submit forthwith replacement name list
and resume for such appointment within required time. Subcontractor shall keep an up

to date list of people involved in the performance of the works, such list shall be
provided to contractor at any time as required by the contractor and whenever any
changes in the subcontractor’s organization occur.
c) Subcontractor shall not revoke the appointment of any Key Personnel or appoint a
replacement for any of them without the prior written consent of Contractor.
d) Subcontractor’s Project Manager shall work on full-time basis and be on duty as long
as there is Work in process. In the case that Subcontractor’s Project Manager
unavoidably has to be temporally absent due to such reasons as illness etc., a suitable
acting project manager shall be appointed by the Subcontractor and agreed by the
Contractor during his absence.
e) The Subcontractor’s Project Manager shall, on behalf of Subcontractor, receive
instructions from Contractor’s Project Outsourcing Manager.
3.2.3

Subcontractor shall, within required time limit, build _2____ demonstration WORKs in
accordance with the standards and criteria set forth by the Employer and/or the Contractor.
The Subcontractor shall be paid only for the demonstration WORKs which satisfy the
Employer and the Contractor in quality and standards; and such satisfactory demonstration
WORKs shall model all the following WORKs to be built by the Subcontractor. Any costs
and expenses incurred from the unsatisfactory demonstration WORKs shall be borne by
the Subcontractor. If the Subcontractor fails to build demonstration WORKs within the
required time limit or demonstration WORKs fail to meet the required standards or criteria,
the Contractor has the right to suspend or rescind the relevant PO.

3.2.4

Subcontractor shall have no right to subcontract all or any part of this Project to any third
party without Contractor’s prior written consent. If Subcontractor breaches this clause,
without prejudice to any other remedies, the contractor shall be entitled to claim 10% (ten
percent) of all the PO amount under this agreement which has been performed and/or

terminate this Agreement. The subcontractor shall bear any and all costs, expenses, losses,
and damages arising out of such termination.

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3.2.5

Subcontractor has full regard for the safety of all persons on the WORK and keep the
WORK (so far as the same is under his control) and the Work (so far as the same are not
handed over to Contractor) in an orderly state appropriate to the avoidance of danger to
such persons, equipment, tools, WORKs, and take all reasonable steps at his own cost to
protect the environment on and off the WORK and to avoid damage or nuisance to persons
or to property of the public or others resulting from pollution, noise or other causes arising
as a consequence of his methods of operation.

3.2.6

Subcontractor shall institute a quality assurance system to demonstrate compliance with
the requirements of the Contractor. Contractor shall be entitled to audit any aspect of the
system. Details of all procedures and compliance documents shall be submitted to
Contractor for information before each design and execution stage is commenced. When
any document of a technical nature is issued to Contractor, evidence of the prior approval
by Subcontractor himself shall be apparent on the document itself. Compliance with the
quality assurance system shall not relieve Subcontractor of any of his responsibilities,
obligations or liabilities under this Agreement.

3.2.7

Subcontractor shall run self-checks on all the Works carried out, including but not limited
to the concealed works; photographs can be taken as an evidence of self-checks. The
self-check records shall be kept ready for Contractor’s inspection at any time. The
concealed works shall be inspected and approved by the Contractor before any following
work being dealt with.

3.2.8

Subcontractor shall promptly and effectively remedy any defect occurred during the
execution of the Works. If the defect is caused due to the Subcontractor’s fault, such as
negligence or omission, all costs and expenses of the remedy shall be borne by the
Subcontractor.

3.2.9

Subcontractor shall be deemed to have inspected and examined the WORK and its
surroundings and information available in connection therewith and to have satisfied
himself, so far as is practicable, before acceptance of the PO issued hereunder, as to the
form and nature thereof, including the sub-surface conditions, the hydrological and
climatic conditions, the extent and nature of work and materials necessary for the
completion of the Works, the means of access to the WORK and the accommodation that
may be required, and in general, shall be deemed to have obtained all necessary

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information, apart from the above mentioned, as to risks, contingencies and all other

circumstances which may influence or affect its work. The Subcontractor shall be liable to
any consequences subsequently caused by the said conditions
3.2.10

Subcontractor shall bear all costs and charges for special and/or temporary permission to
access which he may require, including those for access to the WORK. Subcontractor shall
also obtain, at his risk and cost, any additional facilities outside the WORK which he may
require for the purposes of the Work.

3.2.11

Subcontractor shall be responsible for all its Personnel’s accommodation, transportation
and other expenses arising from the execution of the Work during the Project.

3.2.12

Subcontractor will be liable to the Contractor and the Employer for any debts, claims, suits,
payments, legal actions or judicial decisions filed in or issued by the competent authorities
arising out of or in connection with the execution of the Work by Subcontractor, its
personnel, agents, representatives or sub-subcontractors, or by reason of losses or damage
to property of the Contractor and the Employer or any third parties, including landowners
or holders of easements or other real rights of vested possession or simply occupants, or by
reason of injuries to or death of persons, provided that in all cases such losses or damages
are susceptible to be claimed to the Contractor and the Employer.

3.2.13

Subcontractor shall not interfere unnecessarily or improperly with the convenience of the
public, or the access to and use and occupation of all roads and footpaths, irrespective or
whether they are public or in the possession of the Employer or of others. Subcontractor

shall indemnify and hold the Contractor and Employer harmless against and from all
damages, losses and expenses (including legal fees and expenses) resulting from any such
unnecessary or improper interference.

3.2.14

Subcontractor shall visually inspect equipment, materials and tools provided by Contractor,
and shall promptly give notice to Contractor of any shortage, defect or default in the
equipment, materials and tools. After this visual inspection, the equipment, materials and
tools shall come under the care, custody and control of Subcontractor and all the risk shall
be passed to Subcontractor. All the WORKs shall be under the care of Subcontractor from
Subcontractor coming into the WORK until the issuance of PAC by Contractor.

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3.2.15

Subcontractor shall guarantee and maintain the authenticity, legitimacy and validity for all
the documentation including but not limited to register documents, financial statement,
authorization document, acceptance document and any other document subcontractor
presented to Contractor and Employer, and subcontractor shall bear any and all the
responsibility, costs of any damages and legal fees and/or penalty that may be arising out
of or in connection with its breach of this terms or other terms of this Agreement.

3.2.16

The Subcontractor shall submit the work schedule (including General Plan, Monthly Plan,

and Weekly Plan) to Contractor’s Project Outsourcing Manager for approval. The
Subcontractor shall appoint personnel solely devoted to the preparation and submission of
the documentation specified below.
a) project implementation plan ;
b) a checklist and detailed schedule for the provision of Contractor’s drawings, tools,
equipment and logistics requested by Subcontractor for the implementation of the
Project.
c) The Subcontractor’s construction teams, list of personnel, contact information and
primary working staffs’ resumes in English.
The Subcontractor must submit the above stated reports within ten (10) Days after signing
this Agreement.

ARTICLE 4 TIME AND COMPLETION OF WORK
4.1

The Subcontractor shall perform the Work according to the schedule approved by
Contractor and complete the Project within the time period specified in each PO.

4.2

Subcontractor shall commence the execution of the Work on the Commencement Date as
specified in PO, and shall then proceed with the Work with due expedition and without
delay.

4.3

The Subcontractor shall not suspend or delay the progress of the Project or any part thereof
without the prior written consent of the Contractor.

4.4

Contractor may at any time instruct Subcontractor to suspend progress of part or all of the
Work. During such suspension, Subcontractor shall protect and secure the WORKs and any
equipment, devices, instruments stored at the Sties against any deterioration, loss or damage.

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The written instruction document issued by Contractor shall be properly kept by
Subcontractor. Contractor may also notify Subcontractor of the cause for the suspension.
4.5

If the suspension is solely caused by Subcontractor, Contractor has the right to terminate this
Agreement and claim damages from Subcontractor.

4.6

The Subcontractor shall within one (1) calendar day notify Contractor's Outsourcing
Manager of any delay which is not caused by the Subcontractor itself but due to reasons
beyond its reasonable control including but not limited to changes in design, force Majeure,
etc. The Subcontractor shall, within seven (7) calendar days after its first knowledge or
awareness of the delay, provide adequate evidences to the Contractor's Project Outsourcing
Manager to justify the delay. If the Contractor's Project Outsourcing Manager, judging by
the adequate and valid evidences provided by the Subcontractor within the above fixed time
limit, signs to confirm that the Subcontractor shall not be held responsible for the delay, the
Subcontractor can then be exempted from any liabilities in connection with the delay. The
time schedule shall be continuously checked and may be adjusted during execution by
Contractor if the circumstances or the progress of Work so requires.

4.7

The Project period may be extended upon written consent of Contractor’s Project
Outsourcing Manager when the delay is confirmed not the liability of Subcontractor by
Contractor in accordance with 4.6.

4.8

Contractor might, under special circumstances, require Subcontractor to execute the Work
during the night, on weekends and on holidays. Subcontractor hereby acknowledges that it is
the Subcontractor responsibility to obtain all required permissions and to take adequate
measures to ensure the aforesaid overtime performance.

4.9

Subcontractor hereby acknowledges that it is Subcontractor’s full responsibility to obtain all
required permissions relating to the Project at no cost to the Contractor and to take due
measures to safeguard performance according to applicable laws, including during the night,
on weekends and on holidays (if any).

ARTICLE 5 PRICE AND TERMS OF PAYMENT
5.1

When requesting payment, Subcontractor shall apply for settlement in accordance with
Contractor’s paying procedures set out in Error! Reference source not found.nd payment
procedure hereto.

5.2

Only after Contractor approves the settlement application and confirms the settlement
amount on the settlement sheet shall the Subcontractor issue and send the corresponding
invoice to Contractor. The payment will be made within Thirty (30) Days from the date of
the original invoice being accepted by Contractor. Contractor shall not be assumed any
liabilities if the payment is delayed due to Subcontractor’s fault.

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5.3

The exact contractual price shall be subjected to actual quantity of WORKs placed in the PO
and unit price of Annex 3 Price List. The due payment of each purchase order shall be
remitted to the Subcontractor by means of Telegraphic Transfer. Each party shall be
responsible for the transfer costs of its respective banks.

5.4

The payment should be made by Vietnam VND.

5.5

Payment Proportions are as follows:

For FISRT SERVICE

One hundred percent(100%) of the actual finished and accepted engineering service PO value
shall be paid after passing the Contractor’s PAC within 30 days from the date of Contractor

received invoice.

For SECOND SERVICE

The 1st Payment: The sixty percent (60%) of the actual finished and accepted engineering
service value shall be paid after passing Contractor completion certificate within 30 days from
the date of Contractor received invoice.

The 2nd payment: The Thirty percent (30%) of the actual finished and accepted engineering
service value in the project shall be paid after passing PAC within 30 days from the date of
Contractor received invoice.

The 3rd Payment: The Ten percent (10%) of the all actual finished and accepted engineering
service value in the project shall be paid after passing FAC within 30 days from the date of
Contractor received invoice.
5.6

Contractor has the rights to refuse the concerned payment where:

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a) The settlement sheet is not in the format of Contractor’s form or is not filled in
completely.
b) Subcontractor fails to respond in time to Contractor’s request for clarification.
Contractor shall not be held responsible for any costs and expenses incurred by
Subcontractor due to such payment rejection.
5.7

Settlement sheets and the related invoices shall match with the relevant PO. The bank
account names, account opening banks and account numbers of both Parties provided herein
shall be used for payment. In case of any change(s) thereof, the Party making change(s)
shall notify the other Party in writing twenty-five (25) Days prior to the relevant agreed
payment time limit and any such change(s) shall be subject to the written confirmation of
the Party’s authorized representative.

5.8

Subcontractor shall be deemed to have satisfied himself as to the correctness and sufficiency
of the price and have based the price on its full understanding and examination of the data,
interpretations, information, inspections as to all relevant matters and designs. The price
covers all the Contractor’s obligations under this Agreement and the PO hereunder and all
things necessary for the proper design, execution and completion of the Project and the
remedying of any defects.

5.9

The prices set forth in Error! Reference source not found. include all the costs and
expenses incurred by Subcontractor for this Project. The Unit Price shall remain fixed and
firm during the term of this Agreement, Subcontractor shall not raise the Unit Price in any
way after the effective date of this Agreement for any cause including but not limited to
float of market price on raw materials or parts, salary or wages, the fluctuation of exchange
rates or any other factors.

5.10

Unless otherwise specified in this Agreement, any kinds of duties, taxes, social security,
levies and charges arising out of or in connection with the performance of this Agreement

shall be deemed to have been included in the price and shall be borne by the Subcontractor.

5.11

The Contractor is entitled to: (1) withhold or deduct or retain a fraction of payment if the
laws and regulations of any jurisdiction to which it may be subject require so, provided that
relevant certificates or documents with respect to such deduction are served.

ARTICLE 6 COMMUNICATION AND MEETING
6.1

A kick-off meeting between the Parties, attended by Subcontractor’s Project Manager and
other key personnel shall be organized before project commencement. Details with respect

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to team build-up/establishment, communication system, progress plan, report template, etc,
shall be recorded and confirmed by both Parties at this meeting.
6.2

Routine meetings for the progress, schedule and problems shall be organized by both Parties
at regular intervals, which shall not be longer than half a month. Subcontractor shall make
preparations for such meetings, including preparing relevant documents, schedule, progress
report, etc.

6.3

Temporary meetings shall be organized to solve cooperation problems and discuss
performance difficulties at Contractor’s request. Minutes shall be taken and signed by all the
attendants of the meeting. Attendants of this meeting shall include Subcontractor’s Project
Manager, Key Personnel and other senior personnel from Subcontractor’s side as requested
by Contractor.

ARTICLE 7 PROJECT QUALITY
7.1

This Article is left blank intentionally and follow the Annex 12 quality standard and
acceptance

ARTICLE 8 MODIFICATIONS TO PROJECT AND DESIGN
8.1

All design drawings, technical specifications, requirements and documents approved and
delivered by Contractor shall constitute integral part of this Agreement and modification
made to the aforesaid contents shall be deemed the amendment to this Agreement.

8.2

Contractor’s prior written approval is required when any modifications becomes necessary.
(verbal agreements over the telephone is allowed in emergency only, provided that such
modification request and approval is transformed into writing within two (2) days after such
verbal communication). Subcontractor shall be responsible for the quality of any
modifications made by it.

8.3

When variations are requested by the Contractor and Employer during the Project,

Subcontractor shall provide all assistance in carrying out the variations. Variations can be
initiated by Contractor at any time prior to the issuance of FAC for this Project, either by
instruction of variation or by requesting Subcontractor for a proposal. A variation shall not
comprise the omission for any work which is to be carried out by others.

8.4

The Subcontractor shall execute and be bound by each variation, unless it promptly gives
notices to the Contractor stating with supporting particulars that (i) the Subcontractor can
not readily obtain the goods required for the Variation; (ii) it will reduce the safety or
suitability of the works, or; (iii) it will have adverse impacts on the completion of this

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Project as scheduled. Upon receiving this notice, Contractor may accordingly cancel,
confirm or vary the instruction of variation.
8.5

If Contractor requests proposal for variation, the Subcontractor shall respond in writing as
soon as practicable, either by giving reasons why it cannot comply (if this is the case) or by
submitting:
a) A description of proposed design and/or work to be performed and a schedule for its
execution;
b) A proposal for any necessary modification to the schedule of the Project;
c) A proposal for adjustment to the price.
The Subcontractor shall not delay any work whilst awaiting a response.

ARTICLE 9 TEST AND ACCEPTANCE
9.1

Contractor is entitled to inspect the Products provided by Subcontractor and reject the
Products if they are defective or fail to meet any applicable standards and/or specifications
provided for in this Agreement. The inspection and acceptance of the Products shall not
relieve Subcontractor from its warranty obligations hereunder.

9.2

Subcontractor shall notify and apply within three (3) Days after completion of the Project
for the PAT of the Project which is conducted under the supervision of the Contractor and
Employer. For Contractor’s convenience, Subcontractor shall submit all Project records and
documents, Project drawings, and acceptance documents.

9.3

The PAC shall be issued to Subcontractor within thirty (30) Days after the completed
Project has passed the PAT fully. Upon issuance of PAC, Subcontractor shall transfer all
documentation associated with the Project to Contractor.

9.4

After two (02) Years from the issuance of PAC, both Parties shall carry out the FAT in order
to evaluate the performance of Project and a FAC shall be issued by Contractor within thirty
(30) Days upon successful FAT.

9.5

The standards of acceptance are specified in Annex 10 HS&W Checklist for Subcontractors

or Annex 12 quality standard and acceptance.

ARTICLE 10 INSURANCE
10.1

The Subcontractor shall within three (3) Days after acceptance of PO procure and maintain
at his expense, insurances against any damage, loss or injury which may occur to any

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property or to any person from whatever cause for a period beginning from Commencement
Date and till the end of warranty period.
10.2

The following insurances shall be effected by the Subcontractor
(a) workers’ compensation insurance and Employer’s Liability Insurance in such amounts
and with such limits as required by the applicable laws. Subcontractor is fully responsible
for any kind of injury claims by its workers;
(b) Erection All Risk Insurance covering the full value of the equipment and facilities
provided by Contractor but under Subcontractor’s control;
(c) third party liability insurance in respect of claims by third parties arising out of or in
connection with the Work including coverage for bodily injury, death and property damage
until the expiration of the warranty period. No deductible shall be paid by Contractor.

10.3

These insurance policies shall be approved by the Contractor, which approval shall not be

unreasonably withheld, and the Subcontractor shall upon Contractor’s request produce to
Contractor copies of the policies and the receipt indicating payment of current premiums for
such policies.

10.4

Subcontractor shall give or make the insurance-issuing company give the Contractor at least
thirty (30) days prior written notice of cancellation, non-renewal, or reduction in coverage,
terms, or limits.

10.5

Both Parties agree that:
a) Contractor’s failure to demand a particular insurance or to identify a deficiency will
not be construed as a waiver of Subcontractor’s obligation to purchase and maintain
the insurance required by local laws or under this Agreement;
b) the insurance required under this Agreement shall not represent that coverage and
limits is adequate enough to protect Subcontractor, nor shall it be deemed as a
limitation on Subcontractor’s liability to Contractor or any third party involved under
this Agreement.

ARTICLE 11 SOCIAL AND ENVIRONMENT RESPONSIBILITY (SER)
11.1

In consideration for the opportunity of being a sustainable business partner of the
Contractor, the Subcontractor hereby agrees to conduct its business in conformity with the
standards set out in Error! Reference source not found., the requirements in Error! Reference

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source not found. and any environment, health, safety laws and regulations that apply to its
performance under this Agreement.
11.2

The Subcontractor shall contractually secure that its own employees, subcontractors(only to
the extent that such act of subcontract is allowed under this Agreement), business partners,
suppliers and other third parties accept and adhere to the SER requirements set out herein.

11.3

Contractor may request from Subcontractor information related to the measures adopted to
ensure compliance with the SER requirements set out herein. Subcontractor shall report to
Contractor as per Annex 9 Incident Classification and Report Form immediately after the
occurrence of any environment, health, safety (EHS) incident.

11.4

Upon prior written notice, Contractor shall be entitled, by itself or through an authorized
auditor, to audit Subcontractor in order to verify its conformity with the SER requirements
set out herein. In case of any non-compliance, Contractor may serve a warning notice and
demand Subcontractor to take any measures leading to compliance or remedy within thirty
(30) Days following the receipt of written notice. Contractor may, without prejudice its
other rights hereunder, cancel the PO(s) issued hereunder if: (1) Subcontractor fails to
remedy the non-compliance within the said period or; (2) such non-compliance recurs or; (3)
a major incident as defined in Error! Reference source not found. occurs.

ARTICLE 12 WARRANTIES

12.1

Either Party represents and warrants to the other Party that on the Effective Date of this
Agreement:
a)

the execution and delivery of this Agreement has been properly authorized;

b)

it has full corporate power to execute, deliver and perform its obligations under this
Agreement;

12.2

Subcontractor represents and warrants that:
a) this Agreement does not conflict with or result in the breach of or default under any
provision of its constitution, or any material term or provision of any law or regulation
to which it is a party or a subject or by which it is bound;
b) to the knowledge of the Party, there are no actions, claims, proceedings or
investigations pending or threatened against it or by it of which it is aware, and which
may have a material effect on the subject matter of this Agreement; and

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c) it has (or will at the relevant time have) all licenses, authorizations, consents, approval
and permits required by all applicable laws and regulations in order to perform its

obligations under this Agreement, and otherwise complies with all laws and
regulations applicable to the performance of those obligations.
12.3

Subcontractor represents and warrants that the use, possession, marketing or selling of the
Products and Services do not and will not infringe the rights (including Intellectual Property
Rights) of a third party.

12.4

Subcontractor warrants that Products furnished hereunder will be, new and unused, of
satisfactory quality, free from defects whether actual or latent in design, material and
workmanship, free from all liens and encumbrances and will substantially conform to and
perform in accordance with applicable Specifications (whether statutory or agreed) ,
drawings and samples.

12.5

Subcontractor warrants and represents that the Services shall be:
a) performed by adequate numbers of appropriately qualified and trained personnel, with
due care and diligence and to such high standard of quality as it is reasonable for
Contractor to expect in all the circumstances;
b) compliant with all laws and regulations applicable to Subcontractor, the Services and
Subcontractor’s obligations under this Agreement;
c) free from defects as regards its performance.

12.6

Breach of Warranty for Products and Services:
a) Without prejudice to any other remedies available to Contractor under this Agreement

or otherwise, Subcontractor undertakes at its own cost and risk either to repair or to
replace (at Contractor’s option) any Products which are faulty and/or fail to comply
with any part of the Specifications or of this Agreement during a period of two year
(warranty period) from the issuance date of PAC. Subcontractor shall ensure that any
replacements for faulty Products shall comply with the Specifications and match the
original faulty Products in all respects except the fault itself. Unless otherwise agreed,
Subcontractor shall collect faulty Product, return repaired or replacement Products at
Subcontractor’s expense and risk. Subcontractor shall ensure that all repairs and
replacements are carried out within a turnaround of 7 Business Days beginning from
the day when Contractor requests for repair or replacement. Subcontractor shall be
responsible for installing the repaired or replacement Product at the WORK.

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b) Without prejudice to any other remedies available to Contractor under this Agreement
or otherwise, if in Contractor’s discretion any Services are found to be faulty within
the first twelve (12) months after the issuance date of PAC, then Contractor shall be
entitled at its own option to require Subcontractor within 5 Business Days, to (i)
perform those Services again, (ii) provide such additional Services as shall be
necessary to make good the fault or (iii) to pay Contractor all costs incurred by
Contractor in obtaining such Services from a third party at the Subcontractor’s cost.
c) If Subcontractor fails to fulfill its obligations under this article, Contractor shall be
entitled to correct the defect or failure by itself and a third party, and Subcontractor
shall compensate Contractor fully for any reasonable costs of correction.

ARTICLE 13 FORCE MAJEURE
13.1

In this Agreement, “Force Majeure” means an exceptional event or circumstance that: (i)is
beyond the affected Party’s control; (ii)such Party could not reasonably have foreseen and
provided against before entering into this Agreement; (iii)having arisen, such Party could
not reasonably have avoided or overcome by the exercise of reasonable diligence and good
operating procedures and;(iv)is not substantially attributable to the other Party. Force
Majeure shall not include any event which is caused by the negligence or intentional action
of a party or such party’s subcontractors or agents or employees, or by a failure to observe
good professional practice. In case that the Project is not able to be performed due to Force
Majeure, the liabilities shall be exempted in part or wholly in light of the effects of Force
Majeure. For the purpose of the definition of Force Majeure, and unless otherwise provided
in this Agreement, Force Majeure does not include lack of authorizations, of licenses, of
entry or residence permits, or of approvals necessary for the performance of this Agreement
and to be issued by a public authority of any kind whatsoever .

13.2

In the case of Force Majeure, the Frustrated Party shall:
a) promptly notify the Non-Frustrated Party of the nature and extent of the circumstances
of the Force Majeure once known; within fifteen (15) Days present valid documents
issued by the notary public of the locale, stating the details of the incident;
b) forthwith establish and implement a plan that minimizes the disruption to the
Non-Frustrated Party and shall use its commercially reasonable efforts to remedy the
situation and remove the cause of its inability to perform as soon as possible.
c) give the Non-Frustrated Party prompt notice of the cessation of the Force Majeure.

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13.3

If the said Force Majeure lasts for thirty (30) calendar Days, the other Party shall have the
right to terminate the PO(s) so affected after serving a written notice to the Frustrated Party.

13.4

Where only part of the Project is impacted by the Force Majeure, the unaffected part of the
Project shall continue to be performed.

13.5

Failure by the Subcontractor to obtain the relevant permits, licenses, permission and or the
renewal from the relevant authorities shall not be classified as a Force Majeure Event.

13.6

ARTICLE 14 INTELLECTUAL PROPERTY RIGHT (IPR)
14.1

All drawings, specifications, technical manual and commercial information provided by the
Contractor to the Subcontractor, as well as the Contractor's designs, trademarks, copyright,
know-how and other intellectual property rights, whether or not registered, shall remain the
sole and absolute property of the Contractor. The use of such documents or rights by the
Subcontractor shall be restricted to the purposes of fulfilling its obligations under this
Agreement.

14.2

The Subcontractor shall indemnify, defend and hold the Contractor harmless against/from
any lawsuits, claims and damages arising out of infringement or suspected infringement of
intellectual property rights including without limitation any patent, registered design or
copyright of a third party when providing the Products and Services herein.

14.3

The Subcontractor warrants the Service under this Agreement shall not infringe the
intellectual property of any third party. The Subcontractor undertakes to resist or defend at
its own expense any request for any claim for equitable relief or damages against the
Contractor and its Employer /end user based on an allegation that the reasonable use of the
Subcontractor’s Service, infringes any Intellectual Property Rights of any third party and to
pay any costs related to the settlement of such claim, and the Contractor and the Employer
/end user shall give prompt written notice of such claim. The Subcontractor shall take any of
measures hereof.
a) procure for Contractor and its Employer /end user the right to continue using such
product;
b) replace or modify the product so that it becomes non-infringement;
c) other reasonable measures.

14.4

The Contractor shall not bear the economic and legal responsibilities, which may arise from
any Intellectual Property Rights infringement. The Subcontractor shall indemnify the

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Contractor and its Employer /end user for any damages. In any event the Subcontractor shall
be liable to the Contractor for any indirect damages.
14.5

In the event of an infringement of IPR, Subcontractor shall, at Contractor’s option: (a)
procure for Contractor the right to continue using such Products; (b) replace or modify the
Products to avoid infringement; (c) other measures deemed necessary by Contractor.

ARTICLE 15 CONFIDENTIALITY
15.1

All Confidential Information shall be the properties of the disclosing Party and only used for
the purpose of this Agreement by the receiving Party. Either Party agrees to prevent
unauthorized disclosure, disclosure, sale, transfer, modification, translation, reproduction of
the other Party’s Confidential Information in accordance with the terms and conditions of
the Non-Disclosure Agreement entered into between the Parties, which is attached hereto as
Error! Reference source not found..

15.2

Neither the Subcontractor nor its employees or servants or agents shall disclose any
proprietary or confidential information relating to the Contractor's technologies, know-how,
and business secrets without the prior written consent of the Contractor. The Subcontractor
shall not divulge, sell, transfer, or give the above-mentioned technologies, know-how and
business secrets to any third party, or have the same licensed in its own name and vice versa.

15.3

Either Party hereto acknowledges that any violation of the duty of confidentiality set forth in
the Non-Disclosure Agreement is considered to be acting in bad faith and illegal. A Party

acting in bad faith during the term of this Agreement shall indemnify the damages caused to
the other Party.

ARTICLE 16 LIQUIDATED DAMAGES
16.1

If the delay of the project is caused by the fault of the Subcontractor or the Subcontractor’s
failure to transfer the construction or submit the complete and acceptable project documents
within the time specified herein, the Subcontractor shall pay liquidated damages to the
Contractor for such delay of the project at the rate of five percent (5%) of the total Price of
the PO for each week of delay, and such liquidated damages shall not exceed ten percent
(10%) of the total Price of PO. If liquidated damages reach to the maximum limit of ten
percent (10%) than Contractor reserves the right to terminate the Agreement unilaterally.
Even the delay of one day beyond the time specified in PO shall be deemed as one week of
delay.

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16.2

In the event any of the Equipment is lost or damaged due to the fault of the Subcontractor,
the Subcontractor shall compensate the Contractor for its losses and damages incurred which
can not be recovered by insurance.

16.3

Subcontractor shall have no right to subcontract any part of this Project to any third party

without prior written consent of Contractor’s Project Outsourcing Manager. If Subcontractor
breaches this clause, without prejudice to any other remedies, the contractor shall be entitled
to claim 10% (ten percent) of all the PO amount under this agreement which has been
performed and/or terminate this Agreement. The subcontractor shall bear any and all costs,
expenses, losses, and damages arising out of such termination.

16.4

The Contractor will assess and score the Works according to Error! Reference source not
found. after completion of the Works. Based on the Subcontractor’s Quality Check score,
deductions are to be made by the Contractor according to the following sliding scale：

Subcontractor’s
Score (S)

Quality

Check Percentage of the PO Value to be
charged by Contractor as liquidated
damages

90
0%

80
10%

70

20%

60
30%

S 60

40%

16.5

Contractor is entitled to claim any Liquidated Damages as set out herein from the payment
due to Subcontractor and/or guarantees.

16.6

If serious quality issue like wrong connection of power cables and cross connection of
feeder cable is noticed the contractor has right to impose the penalty up to forty (40%) value
of the WORK work

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