PROJECT MANAGEMENT AND CONSTRUCTION AGREEMENT
THIS AGREEMENT is made this day of , 20…
BETWEEN
_____________________________________(Company No. ___________), a company incorporated in Malaysia and having its registered office at _______________________________________________________ (“the Employer”) of the one part;
AND
__________________________________(Company No. _________), a company incorporated in Malaysia and having its registered office at __________________________________________________(“the Main Contractor”) of the other part.
RECITALS
A. The Employer has entered into a joint venture agreement dated ________________ (hereinafter referred to as “the JV Agreement’) with _____________ (hereinafter referred to as “the Landownder”). The JV Agreement is annexed hereto as Appendix A. Pursuant to the JV Agreement, the Employer has obtained the right to develop the land held under Grant No. _______, Lot situated in Mukim of ________________________________________ and measuring approximately _______ acres (“the Land”) in accordance with the development scheme referred to in the JV Agreement (hereinafter referred to as “the Development”).
B. Pursuant to a letter of appointment dated _______________ (hereinafter referred to as “the Letter of Appointment”) the Employer has agreed to appoint the Main Contractor as the main contractor for the Development on a turnkey basis to design build and construct the properties comprised in the Development in accordance with the Approved Layout Plan or the amended layout plan, as the case may be.
C. The Main Contractor has the expertise, knowledge, experience and know-how in the field of planning, designing, building and construction of various structures and buildings and the sale and marketing of residential commercial and industrial buildings and properties.
D. The parties hereto are now desirous of varying and setting out more fully the terms and conditions of the Main Contractor’s appointment as set out in the Letter of Appointment.
NOW IT IS HEREBY AGREED as follows :-
1. Interpretation
1.1 All the terms herein unless otherwise defined or set out herein shall bear the same meaning and definition as that which is defined and set out in the JV Agreement and Letter of Appointment.
2. Consideration
2.1 The consideration for this Agreement shall be the mutual promises and covenants herein contained.
3. Variation of Contract Sum
3.1 In consideration of the Main Contractor agreeing to undertake the construction works in respect of the Development, the Employer has, pursuant to Clause 2 of the Letter of Appointment, agreed to pay the Main Contractor a sum of Ringgit Malaysia __________________ (RM ____________) (hereinafter referred to as “the Contract Sum”).
3.2 The parties hereto hereby agree that notwithstanding the terms of Clause 2 of the Letter of Appointment, the parties shall have the right to vary the Contract Sum upon commencement of the construction works in the Development.
3.3 The Contract Sum shall be paid by the Employer to the Main Contractor on a progressive basis and within Fourteen (14) days from the date of receipt by the Employer of the architect’s certificate for works done.
4. Main Contractor’s scope of works
4.1 Save and except as otherwise expressly provided for herein, it is the express intention of the parties hereto that the Main Contractor shall undertake and discharge the Employer’s obligations under the JV Agreement. In amplification to the obligations stipulated in the Letter of Appointment the Main Contractor’s scope of works, responsibilities and obligations pursuant to its appointment herein shall include but are not limited to the following:-
4.1.1 the Main Contractor shall be responsible for the planning, designing, constructing and building of all the works of the entire Development in accordance with the Approved Plans or any amended plans and within the budget annexed hereto as Appendix B;
4.1.2 the Main Contractor shall conduct soil investigations on the Land including making special surveys if necessary and such other investigations and testing as may be required for the proper execution and implementation of the Development;
4.1.3 the Main Contractor shall carry out and complete the Development by the Completion Date or such extended period as agreed to between the Employer and the Landowner without unreasonable delay in every aspect of the works and in conformity to the Approved Plans or any amended plans and other specifications which have been approved by the Appropriate Authorities;
4.1.4 the Main Contractor shall submit project feasibility, cash flow and lay out plans including any subsequent variations and amendments, if any, to the Employer, who will in turn submit the same to the Landowner;
4.1.5 the Main Contractor shall prepare detailed architectural, structural, mechanical, electrical and other necessary drawings and plans for buildings and infrastructure and shall submit the same to the Employer who shall in turn submit the same to the Appropriate Authorities and/or the Landowner for its approval thereof;
4.1.6 the Main Contractor shall nominate the architect, civil and structural engineer, mechanical, electrical engineer, quantity surveyor and other related consultants required for the purpose of the Development (“the Consultants”) to be appointed by the Employer but all fees, costs and charges of their appointment and services rendered shall be paid by the Main Contractor.
4.2 The Main Contractor hereby acknowledges that it has sighted the JV Agreement and is fully aware of all the terms and conditions stated therein and hereby agrees and undertakes that it will, subject to the provisions of Clause 4.1 hereof, fulfil for and on behalf of the Employer all such obligations as are required to be performed by the Employer pursuant to the JV Agreement in every respect thereof.
5. Main Contractor’s covenants
5.1 The Main Contractor hereby agrees and covenants as follows :-
5.1.1 that it shall pay the conversion premium within ______.
5.1.2 that it shall comply with all terms and conditions which are imposed by the Landowner on the Employer as stipulated in the JV Agreement, as if the terms and conditions are imposed upon the Main Contractor by the Landowner. It shall also comply with all conditions imposed by the Appropriate Authorities;
5.1.3 that where required, it shall submit such drawings and details to the Employer within a reasonable time prior to the deadline for the Employer to submit the same to the Landowner for its approval so that the Employer shall have a reasonable time to comment on the drawings and details in the event such drawings and details are not to the satisfaction of the Employer;
5.1.4 that all works under the Development shall be carried out in a good and workmanlike manner strictly in accordance with the plans drawings and specifications as shall have been approved by the Appropriate Authorities using materials of reasonable quality and in compliance with the JV Agreement and any stipulations by the Appropriate Authorities. The Main Contractor hereby agrees to indemnify the Employer against any expenditure that is incurred as the result of any breach of the obligations contained in this Sub-Clause;
5.1.5 the Main Contractor shall commence to carry out the construction works in the Development within [ ] months from the date the Employer notifies the Main Contractor that it has received the last of the approvals for the building/infrastructure plan or other related plans from the Appropriate Authorities, the development licenses and approved permits for sale.
5.1.6 the Main Contractor shall complete the construction works of the building units and all related infrastructure and amenities of the Development within [ ] months from the date of commencement of the construction works as contained in Sub-Clause 5.1.5 above (“Completion Date”), or within any extended period which shall have been agreed upon between the Employer and the Landowner.
5.1.7 the Main Contractor shall not cause any nuisance or trespass or commit any other breach of duties in connection to its undertaking of the works herein and it shall not allow to be suffered any nuisance or trespass or any breach of duties of care in respect of its employees servants or agents. The Main Contractor hereby agrees to indemnify and keep the Employer indemnified against all claims, damages, compensation, costs and expenses arising out of the breach of this covenant;
5.1.8 the Main Contractor shall make good all defects in respect of the building units and/or any other infrastructure or constructions carried out by the Main Contractor including its sub-contractor under the Development within _________, in default of which the Main Contractor hereby agrees to indemnify the Employer against any expenditure incurred by the Employer in making good such defects;
5.1.9 the Main Contractor shall at all times insure and keep insured the completed works in a sum sufficient to cover the cost of completely reinstating the completed works in the event of total or partial destruction by fire, lighting, storm, flood, tempest, explosion or by any articles dropping from air crafts and against loss by theft with any reputable insurance company as may be determined by the Employer.
5.1.10 the Main Contractor shall also be liable for injuries or damage to persons or property resulting from any of its own acts or negligence or that of its agents, servants or its sub-contractors or for or in respect of any claims, proceedings, damages or costs, charges and expenses in respect thereof or in relation thereto or where the injury or damage was contributed to by the Main Contractor, its servants or agents, such part of any compensation as may be just and equitable having regard to the extent of the responsibility of the Main Contractor, its servants or agents or its sub-contractors for the damage or injury.
5.1.11 the Main Contractor shall insure and keep insured against claims, proceedings, damages, costs and expenses for injuries or damage to persons or property during the course of construction resulting from any of its own acts or negligence or acts or negligence by its agents, servants or sub-contractors.
6. The Employer’s Obligations
6.1 The Employer hereby agrees and covenants as follows :-
6.1.1 that upon request by the Main Contractor, it will expeditiously sign all applications, plans and other documents as may be necessary to secure such approvals as may be required from the Appropriate Authorities and/or to carry out and complete all works under the Development;
6.1.2 that pursuant to the Power of Attorney granted to it by the Landowner under the JV Agreement, it shall within Ten (10) days from receipt of a request :-
a) furnish such undertakings as shall be requested for by the end financiers for the individual properties in the Development;
b) execute the sale and purchase agreements in respect of the individual properties sold in the Development;
c) endorse its consent to the deeds of assignment in respect of facilities granted by end financiers to the purchasers of the properties sold in the Development;
6.1.3 that it will expeditiously render assistance at all times to the Main Contractor in its application to the Appropriate Authorities for the supply of water, electricity and telephone and other amenities to the Development;
6.1.4 upon obtaining vacant possession of the Land from the Landowner, it shall grant to the Main Contractor vacant possession of the Land and the right for the Main Contractor and the Consultants, contractors, sub-contractors, suppliers, agents and other persons authorised by the Main Contractor and their workforce with or without vehicles and equipment to enter upon, pass and re-pass the said Land or any part thereof at all times of the day and night and/or otherwise to remain thereon throughout the duration of the Development for the purposes of carrying out all such development, construction and other works related to the Development PROVIDED ALWAYS that the Main Contractor’s right to vacant possession of the Land shall at all times be subject to any terms and conditions imposed by the Landowner on the Employer under the JV Agreement or otherwise.
6.1.5 that where any act matter or thing is required to be done by the Landowner, it shall expeditiously procure the performance of such act matter of thing by the Employer;
6.1.6 that it will not in any way interfere with or hinder the performance of the obligations required to be performed by the Main Contractor pursuant to this Agreement.
7. Development Cost
7.1 The Main Contractor hereby acknowledges that it has taken cognisance of the definition of “Development Cost” as set out in Clause 1.1.7 in the JV Agreement and hereby agrees that it shall fully bear the entire Development Cost and shall ensure at all times that it has the financial resources to undertake the Development within the time and in the manner required of it under this Agreement.
7.2 The Main Contractor further acknowledges that part of the Development Cost includes the Land Cost of ___________________ which the Main Contractor shall cause to be paid to the Landowner in the manner provided for in Clause 2.02 of the JV Agreement.
7.3 In addition thereto, the Main Contractor hereby agrees to bear all costs and expenses of the Employer in relation to the Employer’s discharge of all its covenants, duties and obligations to the Landowner as set out in Clause 4.1 above. For purposes of clarification, the Main Contractor shall bear all costs and expenses (except for the payment of the Contract Sum) required to be paid by the Employer in discharging its obligations under the JV Agreement to the Landowner.
7.4 The Main Contractor further acknowledges that under the JV Agreement, the Landowner is entitled to Thirty percent (30%) of the nett profits before tax from the Development and defined therein as the “Landowner’s Entitlements”. The Main Contractor hereby agrees to pay on behalf of the Employer the Landowner’s Entitlements to the Landowner in the amount and in the manner as stated in the JV Agreement. For purposes of clarification herein, the Landowner’s Entitlement does not form part of the Development Cost.
8. Profit Guarantee
8.1 Pursuant to the JV Agreement the Main Contractor hereby acknowledges that a minimum profit guarantee of Ringgit Malaysia __________________________________________(RM ________) has to be given to the Landowner by the Employer pursuant to the JV Agreement in the form of a bank guarantee acceptable to the Landowner. The Main Contractor hereby agrees that it shall raise a bank guarantee for the said sum to the Landowner.
8.2 The Main Contractor hereby acknowledges that pursuant to the JV Agreement, the Guarantors have also given a guarantee to the Landowner for the completion of works under the Development. The Main Contractor hereby agrees to indemnify the Guarantors fully and effectually against all loss, damage, costs and expenses the Guarantors may suffer or incur by reason of any demand, claim, proceedings, execution which the Guarantors may face pursuant to the enforcement of the guarantee as a result of the Main Contractor’s breach, default and/or omission to comply with and/or to fulfil all the terms and conditions of the JV Agreement including but not limited to the timely completion of works under the Development.
9. Management of the Development
9.1 In consideration of the Main Contractor agreeing to undertake the performance of all of the obligations (save and except where otherwise stated) required to be performed by the Employer pursuant to the JV Agreement, the Employer hereby agrees and undertakes that the Main Contractor shall have the exclusive and absolute right free from any interference by the Employer, to execute manage and co-ordinate the construction works in the Development and to market and sell the individual properties in the Development.
9.2 For the avoidance of doubt, the Main Contractor shall have the absolute right to determine the purchase prices of the various units of properties comprised in the Development.
9.3 The parties hereto hereby agree that in consideration of the Main Contractor agreeing to undertake the management of the Development as provided for in Clause 9.1 herein, the Main Contractor shall in addition to the Contract Sum, be entitled to the payment of a management fee (hereinafter referred to as “the Management Fee”) in the manner as stated in Clause 10 below.
10. Payment of Management Fee
10.1 The parties hereby agree that the Management Fee to be paid to the Main Contractor shall be a sum equivalent to Eight Four percent (84%) (hereinafter referred to as “the Proportion Ratio”) of the nett profits of the Development. The payment of the Management Fee shall be subject to the actual receipt of the sale and purchase proceeds from the purchasers or the end financiers of the individual properties sold within the Development and shall be paid to the Main Contractor progressively upon completion of each phase of the Development and within Fourteen (14) days from the date of receipt by the Employer of the audited accounts in respect of each phase of the Development (hereinafter respectively referred to as “the Due Dates”).
10.2 For purposes of clarification, the nett profits in respect of each phase of the Development shall be arrived at after provision has been made for the deduction of the following from the total sale proceeds actually received from the purchasers of the individual properties in each phase of the Development or their end financiers:-
10.2.1 all costs and expenses relating to each phase of the Development including the Development Cost as defined and set out in the JV Agreement; and
10.2.2 the Entitlement to be paid to the Landowner in respect of each phase of the Development pursuant to the JV Agreement; and
10.3 For the purposes of Sub-Clause 10.1 hereinabove stated, all accounts shall be prepared and audited within Two (2) months from the date of completion of each phase of the Development and shall be so prepared and audited by a firm of accountants to be jointly appointed by the parties hereto (hereinafter referred to as “the Auditors”). All costs and expenses of the Auditors including but not limited to fees and remuneration shall be borne equally by the parties hereto.
11. Employer’s Entitlement
11.1 The parties hereby agree that the Employer shall be entitled to Twenty Six percent (26%) (hereinafter referred to as “the Proportion Ratio”) of the nett profits of the Development (hereinafter referred to as “the Employer’s Entitlement”).
11.2 The Employer’s Entitlement shall be determined and paid in the similar manner as stated in Clause 10 herein. The parties hereby agree that payment of the Employer’s Entitlement shall in addition thereto be subject to the following :-
11.2.1 In the event that the audited accounts reveal that a loss has been incurred for any particular phase of the Development, no payment towards the Employer’s Entitlement shall be made to the Employer for the particular phase. In addition thereto, any losses incurred for a particular phase shall be carried forward to the succeeding phase(s) on a continuous basis and shall be deducted from the accrued profits for the succeeding phase(s) prior to any payment being made to the Employer in respect of the Employer’s Entitlement.
11.2.2 For the avoidance of doubt, in the event of a termination of the JV Agreement and/or this Agreement, the obligation of the Main Contractor to make further payment to the Employer in respect of the Employer’s Entitlement shall cease and determine PROVIDED ALWAYS that the Main Contractor shall remain liable to pay to the Employer such payments in respect of the Employer’s Entitlement as shall be due and remaining unpaid prior to such termination.
11.3 The Employer hereby expressly and irrevocably agrees that the Employer’s Entitlement shall be paid to the Main Contractor and that the Main Contractor is hereby irrevocably authorised by the Employer to pay the Employer’s Entitlement to such person(s) as authorised by the Employer in the letter of authorisation executed pursuant hereto.
12. HD Account(s) and Project Account(s)
12.1 All proceeds received from the sale of the individual properties in the Development shall be paid into the Housing Development Account(s) (“HD Account(s)”) as defined in the Housing Developers Control and Licensing Act or a bank account(s) mutually agreed upon by the parties hereto (“Project Account(s)”) in the instance where the Housing Developers Control and Licensing Act is not applicable.
12.2 The HD Account(s) and the Project Account(s) shall be operated in the manner as stated in Clause 13 below.
13. Operation of HD Account(s) / Project Account(s)
13.1 The parties hereto hereby agree to appoint four (4) authorised cheque signatories for the HD Account(s) and the Project Account(s), which shall consist of two (2) persons nominated by the Main Contractor (“Group A”) and two (2) persons nominated by the Employer (“Group B”). All cheques for the Project Account(s) and the HD Account(s) shall be signed in the following manner :-
13.2 Type of Account Signing Mandate Amount
HD Accounts jointly signed by any one (1) No Limit
person from Group A and any
one (1) person from Group B.
Project jointly signed by any one (1) No Limit
Accounts person from Group A and any
one (1) person from Group B.
14. Default and Termination
14.1 The parties hereto hereby agree that Clause 9 of the Letter of Appointment shall be substituted by Clause 15 as set out herein.
15. Events of Default
15.1 The following shall constitute events of default by the Main Contractor :-
15.1.1 The Main Contractor shall fail to commence the construction works within the time as provided in Sub-Clause 5.1.5 herein;
15.1.2 The Main Contractor shall fail to submit plans to the Employer within the specified period for the purpose of enabling the same to be submitted to the Appropriate Authority for its approval;
15.1.3 The Main Contractor shall fail to complete the construction works within the period as provided for in Sub-Clause 5.1.6 herein;
15.1.4 The Main Contractor shall fail to pay the conversion premium within the time period provided for in Sub-Clause 5.1.1 herein;
15.1.5 The Main Contractor shall default in making payment of the Landowner’s Entitlement, Land Costs and/or other payments to be paid by the Main Contractor for and on behalf of the Employer pursuant to the terms of this Agreement;
15.1.6 A distress or execution or other process of court is levied upon or issued against any property of the Main Contractor and such distress, execution or other process (as the case may be) is not satisfied by the Main Contractor within Thirty (30) days from the date thereof.
15.1.7 Any representation or warranty made by the Main Contractor in connection with its appointment for the undertaking and completion of works under the Development shall be found to have been materially incorrect;
15.1.8 The Main Contractor shall have made material misrepresentation(s) to the Employer or shall have wilfully misled the Employer or shall have withheld pertinent information in connection with its appointment as the main contractor for the Development;
15.1.9 The Main Contractor substantially suspends carrying out any of its obligations without reasonable cause for a continuous period of Thirty (30) days;
15.1.10 The Main Contractor’s default, breach or neglect to comply with or carry out any of its obligations under its appointment herein and for the purpose herein. A failure which is caused by its sub-contractors shall be deemed to be failure of the Main Contractor;
15.1.11 The Main Contractor’s actions and/or omissions resulting in the Employer being in breach and/or default of the JV Agreement irrespective of whether the Landowner shall have taken action to enforce the breach and/or default;
15.1.12 The Main Contractor ceases or threatens to cease to carry on business;
15.1.13 A petition for winding up shall be presented against the Main Contractor or an order shall be made or a resolution passed for the winding up of the Main Contractor (unless for the purpose of reorganisation or amalgamation);
15.1.14 Any legal proceedings, suit or action shall be instituted against the Main Contractor which will materially and adversely affect its ability to carry out its obligations as set out in this Agreement.
15.2 If any of the events of default shall occur, the Employer shall give notice in writing to the Main Contractor specifying the relevant default and requiring the Main Contractor to remedy the default within Thirty (30) days from the date of the notice. If the Main Contractor fails to remedy the relevant default within the period specified in the said notice, then the Employer may without prejudice to any other rights, be entitled to the following remedies :-
15.2.1 to a remedy of specific performance against the Main Contractor and to all relief following therefrom if such breach is capable of being remedied; or
15.2.2 to terminate the appointment of the Main Contractor pursuant to the Letter of Appointment and this Agreement, in which case, the consequences of termination as set out in Clause 15.3 shall apply.
15.3 In the event the Employer exercises its right under Sub-Clause 15.2.2 above, the Employer shall be entitled to exercise any one or all of the following options :-
15.3.1 The Main Contractor shall, if instructed by the Employer, cease all works on the Land and remove from the Land all its workmen, employees, servants, agents, contractors and sub-contractors and redeliver possession of the Land to the Employer (except for the building units and/or sub divided individual lots sold and delivered to purchasers);
15.3.2 All buildings and structures erected on the Land by the Main Contractor whether wholly or partially completed at the time of the termination, shall vest absolutely in the Employer;
15.3.3 The Main Contractor shall hand over to the Employer all plans, drawings and specifications and other documents relating to the Development and the Land and obtain unconditional discharges and releases from all the consultants to the Development;
15.3.4 The Employer shall be entitled but shall not be obliged to complete construction of all the buildings which the Main Contractor has commenced construction and in doing so the Employer may appoint another contractor or other person or body to complete the same upon such terms as may be agreed upon by the Employer and such other contractor, person or body appointed by the Employer in completing the Development. The Main Contractor shall if required, execute any document including any deed of novation or any equivalent document transferring the obligations of the Main Contractor under the Letter of Appointment and this Agreement to such other contractor person or body so appointed;
15.3.5 In the event the Main Contractor elects to complete the construction of the buildings in respect of which the Main Contractor has commenced construction but has not as yet completed the same, the Employer shall be entitled to retain for itself a sum which consists of such part of the Contract Sum less the value of the construction works completed by the Employer for such relevant phase. In the event the value of the construction works (including the remedying of any defects) exceeds such part of the Contract Sum due to the Main Contractor, the Main Contractor hereby agrees to pay to the Employer the shortfall;
15.3.6 The Main Contractor shall do all such other acts and deeds as is necessary or required to enable the Employer to continue with the Development through another contractor or otherwise unimpeded and in full compliance with the JV Agreement;
15.3.7 The Main Contractor shall indemnify the Employer against any loss or damage suffered by the Employer arising out of the termination pursuant to Sub-Clause 15.2.2 above.
15.4 Without prejudice to any rights or remedies which the Main Contractor shall possess, if the Employer shall default in any one of the following manner, that is :-
15.4.1 acts in breach of or neglects to comply with or carry out any one of its obligations under the Letter of Appointment or this Agreement;
15.4.2 a distress or execution or other process of a court be levied upon or issued against any property of the Employer and such distress, execution or other process (as the case may be) is not satisfied by the Employer within thirty (30) days from the date thereof;
15.4.3 any legal proceedings, suit or action shall be instituted against the Employer which will materially and adversely affect the Employer’s ability to perform its obligations under the Letter of Appointment and/or this Agreement;
15.4.4 acts in such manner as to hinder or delay the Main Contractor in the performance of its obligations hereunder;
15.4.5 a petition for winding up shall be presented against the Employer or an order shall be made or a resolution passed for the winding up of the Employer (unless for the purpose of reorganisation or amalgamation);
then, the Main Contractor may give notice in writing to the Employer specifying the relevant default and requiring the Employer to remedy the default (if it is capable of being remedied) within thirty (30) days from the date of the notice. If the Employer fails to remedy the relevant default within the period specified in the said notice, then the Main Contractor may without prejudice to any other rights or remedies available to the Main Contractor under this Agreement and under the law, be entitled to the following remedies :-
(i) to the remedy of specific performance against the Employer and to all relief following therefrom if such breach is capable of being remedied;
or
(ii) to terminate this Agreement, in which case, the consequences of termination as set out in Clause 15.5 shall apply.
15.5 In the event that this Agreement is terminated by the Main Contractor :-
15.5.1 the Main Contractor shall remove from the Land all its plant, tools, equipment, goods and material and shall give facilities for its sub-contractors to do the same and shall immediately thereafter redeliver possession of the Land to the Employer; and
15.5.2 the Main Contractor shall be paid by the Employer :-
(i) the total value of construction works completed as at the date of termination (less whatever sums which has been received by the Main Contractor under the Development) as certified by the architect for the Development and other related Development Cost as at the date of termination;
(ii) such portion of the Landowner’s Entitlement as shall have been paid by the Main Contractor to the Landowner;
(iii) the cost of materials or goods properly ordered for the Development for which the Main Contractor shall have paid or for which the Main Contractor is legally bound to pay and on such payment by the Employer, any materials or goods so paid for shall become the property of the Employer; and
(iv) the reasonable cost of removal;
15.5.3 The Employer shall in addition to the payments to be made pursuant to Clause 15.5.2, indemnify the Main Contractor in respect of all loss and damage sustained by the Main Contractor as a result of the breach by the Employer.
16. Force Majeure
16.1 Notwithstanding any provisions herein to the contrary, neither party hereto shall be liable to any other party hereto for loss, delay or damages/casualty suffered or incurred by any such party as a result of a breach or failure to observe or fulfil any of the undertakings, guarantees and warranties in this Agreement where such breach or failure to observe or fulfil is due to strikes, riots, fires, act of god, natural disaster, exceptionally adverse weather conditions, national emergencies, government actions or any other cause which is not reasonable foreseeable and beyond the reasonable control and without the fault or negligence of the party the performance of whose obligations hereunder are affected by such cause.
16.2 Notice of an event of force majeure as referred to in Clause 16.1 above shall be given by the party claiming the benefit of the provisions of Clause 16.1 above to the other party within Five (5) days of the happening of the event.
17. Arbitration
17.1 In the case of any dispute or difference arising between the parties hereto as to the construction or interpretation of this Agreement or the rights, duties or obligations of either party hereunder or any matter arising out of or concerning the same, such dispute or difference shall, if not amicably resolved, be referred to a single arbitrator in case the parties agree upon one (1) but otherwise to two (2) arbitrators, one to be appointed by each party and such arbitration shall in each case be in accordance with and subject to the provisions of the Arbitration Act, 1950 or any statutory modification thereof for the time being in force.
18. Confidentiality
18.1 The parties hereto acknowledge that by reason of the relationship between the Main Contractor and Employer, the parties have access to information that may be confidential. In the event of a termination of this Agreement, there shall be no use or disclosure by either party of any confidential information of the other party.
19. Cost
19.1 Each party shall pay its respective solicitors’ costs and expenses incurred in relation to the negotiation, preparation and execution of this Agreement. The Main Contractor shall pay the stamp fees for this Agreement.
20. Successors bound
20.1 All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors-in-title legal representatives or permitted assigns, as the case may be.
21. Assignment
21.1 Neither of the parties hereto may assign its rights or obligations in whole or in part hereunder without the prior written consent of the other party hereto.
22. Variation
22.1 No variation of this Agreement shall be valid or effective unless made by instrument in writing signed by the parties hereto.
23. Law
23.1 This Agreement shall be governed by and construed in accordance with the laws of Malaysia.
24. Relationship of the Parties
24.1 It is hereby acknowledged and declared by the parties hereto that this Agreement shall not in any event and under no circumstance constitute or create any form of partnership between the parties hereto. Nothing in this Agreement shall be construed to make a party hereto the representative or agent of the other and neither party shall hold itself out as such nor shall any party be liable for or bound by any act or omission of the other.
25. Waiver & Modification
25.1 No waiver by any party of any provision of this Agreement shall be binding unless made and expressly confirmed by it in writing. Any such waiver shall relate only to such matters of non-compliance or breach as is expressly stated and shall not apply to any subsequent or other matters of non-compliance or breach.
26. Severability
26.1 If any of the provisions of the Agreement is found by a court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted and the remaining provisions of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, the parties shall thereupon negotiate in good faith in order to agree to the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.
27. Taxes
27.1 All taxes on profits/property gains made or secured by the Employer or the Main Contractor shall be the sole responsibility of the respective parties and shall be borne and paid by the respective parties to the relevant authorities.
28. Acquisition
29. Appendices
29.1 All the appendices hereto shall be taken, read and construed as an essential part of this Agreement.
30. Mutual agreement
30.1 The parties hereto recognise that it is impracticable to make provisions for all contingencies that may arise out of the performance under the Letter of Appointment and this Agreement and henceforth each party shall from time to time and at all times execute such deeds and document and do all such acts as may reasonably be required for implementing the terms of this Agreement.
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