CONSORTIUM AGREEMENT – TENDER
THIS AGREEMENT made and entered into on this ……. day of …………………. BETWEEN ……
1………, a private limited company registered under the Companies Act 1965 with its business address at ……. (hereinafter referred to as "……") of the first part AND
2……….., a private limited company existing under the laws of Germany with its registered address at …… (hereinafter referred to as "……") of the second part.
WHEREAS:-
(A)….. and …. have entered into a Consortium Agreement dated ….. (hereinafter referred to as "the Principal Agreement") to tender for the project known as …… for the supply of Fire Vehicles (referred to as the PROJECT in the Principal Agreement) to ………… (referred to as the CUSTOMER in the Principal Agreement)
(B)…. and … are desirous of varying/modifying their relationship and their rights and obligations under the Principal Agreement by the provisions hereinafter appearing.
(C)The terms appearing herein shall have the same meaning as they appear in the Principal Agreement.
NOW THEREFORE in consideration of the Premises and of the undertakings contained herein IT IS HEREBY AGREED as follows:-
ARTICLE 1 – SCOPE OF THIS AGREEMENT
1.1…. shall carry out and complete the supply of all the Fire Vehicles in accordance with the provisions of this Agreement. The Principal Agreement (save where it is not varied or modified by this Agreement) and the CONTRACT in every respect and to the direction and satisfaction of …. and the CUSTOMER.
1.2 The Fire Vehicles shall be supplied to … who shall pay and deliver the same to the CUSTOMER.
ARTICLE 2 – QUANTITY AND PRICES
2.1 The quantities and prices of the Fire Vehicle(s) that are supplied by …… to …. shall be as set out under Schedule …. of this Agreement the price of which comprises Cost and Freight.
2.2 The price for the Fire Vehicles shall include the costs of documentation, all port charges at the port of leading and any intermediate port (if applicable) and all other costs and expenses for the delivery oof the Fire Vehicle(s), until the port of discharge.
2.3 The prices of the Fire Vehicle(s) shall not include any Malaysian duties and taxes. All other duties and/or taxes payable in the originating country or elsewhere shall be borne by …….
ARTICLE 3 – PERFORMANCE BOND
3.1 In consideration of …. issuing a Performance Bond on behalf of the Consortium established under the Principal Agreement to the CUSTOMER, …. undertakes and agrees to indemnify …. up to the full value of the Performance Bond in the event the same is called upon by the CUSTOMER due to or as a result of any act, neglect, default, failure, negligence or omission of ….. under this Agreement, the Principal Agreement and the CONTRACT.
ARTICLE 4 – TERMS OF PAYMENT
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ARTICLE 5 – DELIVERY
5.1…. shall strictly adhere to the delivery schedule under this Agreement which is Schedule ….. or such other reasonable and practicable schedule stipulated by …… vis-a-vis the CUSTOMER.
5.2 In the event of any need or necessity to obtain from the CUSTOMER an extension or variation to the delivery schedule referred to in 5.1 above, …. shall use all efforts to negotiate with the CUSTOMER on behalf of and as LEADER of the CONSORTIUM which was established under the Principal Agreement for the same.
5.3 In negotiating for the extension or variation referred to in 5.2 above, …… makes no guarantee or gives any assurance that the such extension or variation shall be obtained.
5.4 In the event that the CUSTOMER refuses or declines to give such extension or variation to the delivery schedule in 5.1 above, ….. shall use all efforts and proceed with all reasonable dispatch to meet and comply with the same.
5.5….. and …. agree to share any penalty or imposition of liquidated damages stipulated by the CUSTOMER under the CONTRACT against the CONSORTIUM in the proportions set out in Article 7 of the Principal Agreement for any failure to meet and comply with any delivery schedule which the CONSORTIUM failed to obtain an extension or variation.
ARTICLE 6 – INSPECTION AND ACCEPTANCE BEFORE DELIVERY
6.1 The Fire Vehicles shall be inspected and tested at ……..'s factory in accordance with this Agreement, the Principal Agreement (save where it has not been varied or modified by this Agreement) and the CONTRACT to ensure that they fully conform to the TENDER for the PROJECT and under the CONTRACT and that they attain the performance standards and capabilities therein to meet such requirements.
6.2….. and the CUSTOMER shall at any time after the signing of this Agreement, have the right to test and inspect the workmanship and materials used for the manufacture of the Fire Vehicles and may for this purpose despatch a team of officers to ……'s factory.
6.3 In the course of such tests and inspections carried out under Clause 6.2 above, …. or the CUSTOMER's representatives shall have the right to reject any Fire Vehicles found to be defective and not in conformity with the TENDER for the PROJECT and under the CONTRACT and any Fire Vehicles so rejected shall be replaced or rectified by …… at its own costs and expense without any delay or interruption to the delivery schedule stipulated in article 5.1.
ARTICLE 7 – FINAL INSPECTION AND ACCEPTANCE
7.1….. agrees that after the receipt of the Fire Vehicles by the CUSTOMER, the same shall be subjected to the CUSTOMER's normal inspection and acceptance tests at site. Such inspection and acceptance tests shall not exceed the inspection procedures and tests practices adopted in the Technical Specification of the Fire Vehicles.
7.2 The date at which the CUSTOMER completes a satisfactory and successful inspection and acceptance tests of the Fire Vehicles at site shall be regarded as the date of Final Acceptance of the Fire Vehicles by the CUSTOMER.
7.3 Notwithstanding the Final Acceptance of the Fire Vehicles the parties hereto agree that the CUSTOMER shall be entitled to reject the same within a period of twenty four (24) months from the date of final acceptance should the Fire Vehicles be found to be defective, damaged or inferior in quality or performance or differing in form or material from the TENDER for the PROJECT and under the CONTRACT which was not discoverable or apparent during the inspection tests carried out by the CUSTOMER at site.
ARTICLE 8 – FAILURES, DEFECTS OR INCOMPLETENESS AFTER DELIVERY
8.1 In the event any Fire Vehicle is rejected by the CUSTOMER pursuant to Article 7.3 or for any other reasonable reason or cause, …… shall replace the same at its own costs and expense within such time that is stipulated by the CUSTOMER or such other reasonable and practical time under the prevailing circumstances. Any penalties or liquidated damages imposed by the CUSTOMER against the CONSORTIUM or …. as a result of such rejection shall be borne by ….
8.2 If necessary …. shall make arrangements to obtain permission for …. to have access to the CUSTOMER's premises during normal working hours to inspect the rejected Fire Vehicle. All costs and expenses incurred in making the inspection shall be borne by ……
8.3 It is expressly agreed and understood by the parties hereto that any supply and replacement of parts, items or components of the Fire Vehicles throughout the duration of this Agreement and the CONTRACT shall be the sole responsibility of ….. and the undertaking of the services after the supply and delivery of the Fire Vehicles to the CUSTOMER (the Services) shall be carried out by … under the guidance and instructions of …..
8.4…. undertakes that it shall within the time stipulated by …. at its own costs and expense deliver all parts, items or components to be supplied and replaced and also send any instructions or a competent and qualified personnel from its office to assist ….. in performing the services under Article 8.3 above.
8.5…….. shall indemnify …. against all costs, claims, expenses, damages or liabilities suffered or incurred as a result of its failure to fulfill its obligations and responsibilities under this Article 8.
ARTICLE 9 – PACKING AND DESPATCH
9.1 The Fire Vehicles purchased by and supplied to … under this Agreement for the purposes of fulfilling the CONSORTIUM'S obligations under the CONTRACT shall be packed by …… in accordance with ….. standard export packing. ….. shall further guarantee that the packing shall be seaworthy and weather-worthy to prevent damage or deterioration under normal sea transport conditions.
9.2…… undertakes to indemnify ….. against all costs, claims, expenses, damages or liabilities suffered or incurred by ….. as a result of any improper or defective packing of the Fire Vehicles.
ARTICLE 10 – TRANSPORTATION (C + F)
10.1 Except where (through no fault or privity whatsoever on the part of ….. undue delay will be caused, all Fire Vehicle(s) purchased under this Agreement shall be carried by the sea or air, the arrangements for which shall be made by …..
10.2 Freight negotiation with the shipping lines and their respective shipping agents, booking and shipping arrangements as well as freight payment shall be effected by and through ……
10.3……. shall be responsible for the payment of freight to the carrier of the Fire Vehicles and ensure the issuance of clean bills of lading or such other shipping documents that ….. stipulates for.
ARTICLE 11 – INSURANCE (CIF)
11.1WAGON shall procure insurance for the Fire Vehicles supplied under this Agreement, the Principal Agreement and the CONTRACT prior to shipment of the same and ZIEGLER shall promptly and expeditiously furnish WAGON with all necessary details and particulars to enable WAGON to obtain adequate and proper insurance cover for the Fire Vehicles from the loading port to the port of discharge or such other port.
11.2 Such details and particulars to be furnished by …. under 11.1 above shall be accurate.
ARTICLE 12 – PRESENTATION OF SHIPPING DOCUMENTS
12.1……. shall be under the strict obligation to promptly and expeditiously:-
(i)present the shipping documents to the bank effecting payment for the Fire Vehicles immediately upon the issue of the Bill of Lading; and
(ii)send a copy of the non-negotiable Bill of Lading to …… within seven (7) days of the issue of the Bill of Lading.
12.2….. shall indemnify ….. against all costs, expenses, damages and/or liabilities incurred or suffered as a result of any delay in complying with its obligations under Article 12.1(i) above.
12.3…. shall ensure the prompt delivery of the shipping documents by the receiving bank to ….. or its agent to facilitate and enable early clearance of the Fire Vehicles from the port authorities.
12.4 For the purposes of this article, shipping documents shall mean:-
(i) Commercial Invoice;
(ii) Clear Bill of Lading;
(iii)Packing list (two copies);
(iv)Certificate of Origin (two copies);
(v)Any other document required by ………
ARTICLE 13 – FORCE MAJEURE
13.1Neither ….. or ….. shall be liable for any delays due to Government intervention, labour strikes, lock-outs, fire, war, riot, flood occurring within its premises or any other circumstances or incident beyond their control by reason of force majeure affecting the supply and delivery of the Fire Vehicle(s). As soon as any delay or disruption in the supply and delivery of the Fire Vehicle(s) is suffered on experienced by ….. or ….., the CONSORTIUM shall forthwith notify the CUSTOMER in writing of the cause of such delay or disruption as the case may be and take all such reasonable and necessary steps to mitigate the same. …. or …. shall provide the CUSTOMER with the necessary proof of the delay or disruption and both parties shall co-operate to obtain an extension of time from the CUSTOMER to deliver the Fire Vehicle(s) under the CONSORTIUM formed under the Principal Agreement without incurring any penalties in the form of damages for late delivery.
13.2For the purpose of this article breakdown of the Fire Vehicle(s) or correction of defects or deficiencies in the same shall not be construed as a force majeure event.
ARTICLE 14 – RELATIONSHIP WITH THE CUSTOMER
14.1Neither ….. or …. shall do or omit to do any act which may jeorpadize or prejudice the CONSORTIUM's contractual relationship with the CUSTOMER. In particular and without limiting the following, …. or …… shall not:-
(i)commit any breach of any of the provisions of the TENDER for the PROJECT, this Agreement, the Principal Agreement and the CONTRACT;
(ii)cause a receiver to be appointed over any of its property or assets;
(iii)make any voluntary arrangement with its creditors or become subject to an administration order;
(iv)go into liquidation except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be fully bound by and assume the obligations imposed under this Agreement, the Principal Agreement and the CONTRACT; and
(v)cease or threaten to cease to carry on its business.
ARTICLE 15 – GENERAL
15.1 In this Agreement, words in the singular shall include the plural and vice versa.
ARTICLE 16 – INDEMNITY
16.1….. shall indemnify …. in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred by the Consortium established under the Principal Agreement in respect of death or personal injury sustained by any third party as a result of or in connection with the use (whether authorised or not) of the Fire Vehicles.
ARTICLE 17 – AMENDMENTS TO THE CONTRACT
17.1 Any amendment to this Contract shall be made in the form of a written agreement fully agreed and signed by the parties hereto.
ARTICLE 18 – SALE AND AVAILABILITY OF SPARES
18.1….. guarantees that it shall make available all spare parts for the Fire Vehicles (spares) for a period of years commencing from the date of final acceptance for all Fire Vehicles supplied under this Agreement, the Principal Agreement and the CONTRACT for the purpose of carrying out the CONSORTIUM's obligations under the Principal Agreement.
18.2 On the expiry of the period as mentioned in Sub-Clause 18.1 …… shall if it intends to cease production of any spares of its own manufacture, give adequate notice to ….. to enable …. to place orders for the spares forthwith and make available to … free of charge all available drawings and specifications as may be necessary to enable … to manufacture the spares itself. …. shall also supply …. with a list of other known manufacturers and suppliers of the spares.
18.3….. shall supply, for the use of …. ….. sets of a comprehensive and completely illustrated catalogue of the spares and ten …… of service manuals covering the whole range of spares for the Fire Vehicles. All documents must be in English.
ARTICLE 19 – WARRANTY
19.1…. hereby guarantees that the Fire Vehicles upplied under this Agreement the Principal Agreement and the CONTRACT shall be from a current production.
19.2….. warrants all Fire Vehicles supplied by it to … and the CUSTOMER under this Agreement, the Principal Agreement and the CONTRACT shall be free from defects in material and workmanship under normal operational use and maintenance. The warranty shall be valid for a period of twenty four (24) months commencing from the date of final acceptance of the Fire Vehicle(s) by the Customer unless otherwise specified by ……. or the CUSTOMER.
19.3 In the event that …. vis-a-vis the CUSTOMER discovers defects and/or discrepancies in the Fire Vehicles under Article 7 and 8 …. shall within …… (..) days notify …. by facsimile transmission or telex of the same detailing the particulars and characters of the defects and/or discrepancies.
19.4…… also warrants that the materials, metals, chemicals, paints, packing pieces etc. used in the make up of the Fire Vehicles and all its packing and packaging are fully tropicalized and stable under tropical conditions. Any damage to the Fire Vehicle arising from inadequate tropicalization shall be deemed an inherent defect of manufacture and ….. shall as soon as reasonably possible and practical replace the same at its own costs and expense and indemnify …. against all costs, expenses, damages and liabilities incurred or suffered as a result.
19.5 …. warrants to …. that the Fire Vehicles and all components and spares replaced:-
(i)will be of merchantable quality and fit for the purpose made known to … by the CUSTOMER under the TENDER for the PROJECT;
(ii)will be free from defects in design, material and workmanship;
(iii)will be promptly and punctually delivered in accordance to the schedule prescribed; and
(iv)will meet the Technical Specifications and requirements of the CUSTOMER.
ARTICLE 20 – REPRODUCTION /PATENTS
20.1 The technical information to be disclosed and delivered to … and the CUSTOMER in connection with the Principal Agreement and this Agreement including reports, drawings, blueprints and other data are confidential. None of the information delivered pursuant thereto can be reproduced by WAGON without the written consent of …..
20.2……. guarantees that the Fire Vehicles supplied under this Contract do not infringe any letters patent, registered design, trade mark or trade name.
20.3….. undertakes to fully indemnify against any action, claim, demand, costs, charges, liabilities, damages and expenses arising from or incurred by reason of any infringement or alleged infringement of any letters patent, registered design, trade mark or trade name by and through the use of the Fire Vehicles and against all costs and damages which … may incur in any action for such infringement or alleged infringement and for which …. may become liable in any such action.
ARTICLE 21 – ARBITRATION
21.1 Any dispute arising out of this Agreement shall be settled by way of arbitration by a single arbitrator who is a resident of Malaysia, in accordance with the arbitration laws of Malaysia. The venue of arbitration shall be in Malaysia.
ARTICLE 22 – APPLICATION OF LAWS
22.1 This Agreement shall be governed and construed in accordance with the laws of Malaysia. …. hereby irrevocably submits to the non-exclusive jurisdiction of the courts of Malaysia.
ARTICLE 23 – NON-WAIVER
23.1 The failure by ……. to exercise or enforce any right, remedy or provision contained in this Agreement at any time or for any period of time shall not constitute a waiver of such right, remedy or provision of any other right, remedy or provision of this Agreement.
ARTICLE 24 – CORRESPONDENCES AND PROGRESS REPORTS
24.1…. shall submit a progress report pertaining to the supply of the Fire Vehicles under this Agreement, the Principal Agreement and the CONTRACT to … every two (2) weeks for ….'s transmission to the CUSTOMER.
24.2…. shall give copies of all correspondences between the CONSORTIUM and the CUSTOMER to ……
ARTICLE 25 – ASSIGNMENT
25.1….. shall not assign or transfer to a third party all or part of the benefits or obligation under this Agreement, the Principal Agreement and the CONTRACT without the written consent of … and such consent if given shall not relieve … from any liabilities or obligations under the same.
ARTICLE 26 – NOTICE
26.1Any notice, request, requirement, approval, permission, consent or other communication required, authorized, permitted or contemplated to be given hereunder shall be in writing and sent to …. and …..'s address at:-
IN WITNESS WHEREOF the parties hereto have caused this AGREEMENT to be duly executed for and on their behalf the day and year first above written.
SIGNED by )
for and on behalf of )
)
in the presence of:- )
…………………….. ………………………………
Director Director/Secretary
SIGNED by )
for and on behalf of )
)
in the presence of:- )
………………………… ………………………………
Director Director/Secretary
