contract for work and materials draft.docx

CONTRACT FOR WORK AND MATERIALS

1. Subject of the Contract / components of the Contract

The Supplier undertakes to perform the work and provide the deliverables set out in Annex 1 under the terms of this Contract.

The components of this Contract will be:

1.) the Contract, including the special contractual terms and conditions

2.) the Description of work/services to be rendered in Annex 1 including the Supplier’s technical offer No. @ dated @ but not including any of the Supplier’s attached terms of business and payment,

3.) the Conditions for all Installation Work at the place of the assignment including provisions on third-party liability insurance set out in Annex 3,

4.) GIZ’s General Purchase Conditions (AEB) (including any annexes to the AEB) set out in Annex 2, and

5.) the specimens in Annexes 4-6.

In the event of discrepancies, the aforementioned components of the Contract shall apply in the order stated in subparagraph 1 above.

2. Deliverables und personnel to be assigned to the place of assignment

The Supplier shall assign the following specialists to the work to be performed at the place of assignment in accordance with the Conditions for Installation Work Abroad (Annex 3): @

The Supplier must provide the following additional reports relating to services performed at the place of assignment:

• weekly reports on the progress of the installation work, and a final report following completion of the installation. The installation reports must include photographs.
• reports on commissioning, inductions, training

3. Completion deadline

3.1 The deadline for completion of the work at the place of assignment shall be @

3.2 In order to meet the completion deadline, the following interim deadlines are scheduled:

3.2.1 The deadline for availability of the deliverables at the facility shall be eight months (nine months Pala)

3.2.2 erased

3.2.3 The installation/services shall take up to @ calendar days/weeks/months.

3.3 The Supplier must not dispatch the materials nor deploy the personnel assigned nor commence work at the place of assignment before GIZ has given its express written consent. The Supplier must obtain GIZ’s consent at least two weeks before the respective deadlines and dates.

3.4 Sections 7 No. 4 (1) and 14 No. 2a of the Standard Official Contracting Rules for Services (VOL/B) shall not apply.

4. Price

Remuneration and cost reimbursements exceeding this price shall not be paid.

4.6 The work and deliverables under this Contract are an indirect contribution to a public order, therefore Regulation PR 30/53 on the Prices for Public Contracts shall apply. This Contract is therefore subject to price auditing by the competent price authority.

5. Payment plan and due date

5.1 100 % as an advance payment upon conclusion of the contract and presentation of two advance payment guarantees (Guarantee 1: 90% of the material value (incl. transport) and Guarantee 2: rest of the order value (10% of the material value (incl. transport) plus service costs for installation and training)) in accordance with the attached specimen (Annex 4).

The first (90% of the material) advance payment guarantee shall be returned 30 days after delivery and completion of all required documents. The acceptance certificate shall not be required if acceptance takes place in accordance with Section 10.3.

The second advance payment guarantee shall be returned after delivery, completion of services (Installation support and training) and against presentation of the acceptance certificate (annex 5) pursuant to Section 10.3, and after all the defects specified therein have been remedied and no technical claims are outstanding.

If the acceptance certificate is not presented within 12 months after notification of readiness for shipment due to a fault of GIZ, GIZ shall pay this last instalment against presentation of a advance payment guarantee in accordance with the attached specimen (Annex 4).

The advance payment shall be offset against invoice and must be included in this invoice pursuant to item 3.2.2. of the AEB.

5.2 erased

5.3 Payments shall become due in each case after fulfilment of the conditions set forth in Sections 5.1 and 5.2 and 30 days after receipt of an invoice prepared under the terms of this Contract and of the AEB.

5.4 Advance payment guarantee must be issued by a credit institution or credit insurance agency acceptable to GIZ. Binding specimens are attached to this Contract in Annex 4.

5.5. Invoice

The invoices for work performed at the place of assignment on a time basis must be accompanied by work records (attendance lists, time sheets, etc.). These records must be certified by the GIZ representative at the place of assignment.]

6. Pre-shipment inspection

6.1 A pre-shipment inspection [by GIZ, Supplier, the manufacturer] at the production facility is

[ ] scheduled

[ ] not scheduled

7. Delivery clause

The following INCOTERM from the INCOTERMS 2020 shall be agreed as delivery clause:

[DPU Douala Seaport, Cameroon or DAP Pala (optional)]

The price and delivery risk relating to work performed at the place of performance shall be transferred not in accordance with the Incoterm but only after acceptance. From the date specified under 3.2.2. hereof for commencement of installation/work at the place of performance but not before arrival of the deliverables at the place of performance, The Supplier shall also be liable during the period leading to acceptance of the entire works delivered and ready for operation for accidental loss and accidental deterioration of both the work performed at the place of performance and the goods delivered.

8. Additional documents

Technical inspection certificates or official approval certificates, certificates of origin or all other documents not specified in Section 2.5 of the AEB but needed from the supplier for preparation and execution of the contract.

9. Subcontracting

Supplier may not subcontract any work at the place of performance without the express written consent of GIZ. GIZ may revoke such consent at any time should a serious complaint arise.

Subcontractors are vicarious agents. The Supplier’s liability for subcontractors shall not be reduced by GIZ’s consent.

10. Acceptance

10.1 Acceptance of Supplier’s work and materials shall take place after completion. Supplier must notify GIZ of the date of completion and readiness for acceptance no later than three weeks in advance.

10.2 GIZ shall subsequently set the date for acceptance. As soon as the work and materials are completed, the Supplier may require GIZ to carry out the acceptance procedure for the work and materials within six weeks.

10.3. If the works and materials are not accepted within this period but are ready for acceptance, they shall be deemed accepted if the Supplier is not responsible for the delay in acceptance.

10.4 Acceptance tests of the entire work and materials supplied shall be carried out at the place of assignment by GIZ or by a representative appointed for this purpose in writing by GIZ. The work shall be considered accepted solely upon formal written confirmation thereof by GIZ or its representative appointed for acceptance. The acceptance certificate attached to this Contract (Annex 5) shall be used to confirm acceptance. The entire work and materials shall be put into operation for acceptance purposes.

11. Proprietary rights

11.1 Supplier is required to ensure that the work and materials supplied do not infringe upon any copyrights, industrial property rights, or other third-party rights.

11.2 Supplier shall assign to GIZ a worldwide, irrevocable, gratuitous, assignable and non-exclusive right of use for all types of use, including hitherto unknown types of use, for all German and foreign property rights and applications for the same, inventions, design documents, processes, documents and work results, arising from and procured during the performance of the Contract.

In particular, GIZ shall be entitled to make use of these rights in the following manner:

(a) duplication, distribution and publication in any print or press media in any number of editions and for print-on-demand services;

(b) intangible reproduction by oral presentation and public reproduction thereof, including on radio and television;

(c) digitalisation, electronic duplication, distribution and publication, in particular by recording on audio and/or visual storage media including audiovisual media and using machine-readable data carriers (e.g. diskettes, CDs, DVDs, memory chips), including storage, inclusion in computer programmes, transfer to other data carriers and data storage facilities, preparation for and inclusion in machine-readable data banks; such distribution and publication can be in physical or non-physical form, including by means of online use, in particular via the internet or an intranet, by reproduction on screens or by download;

(d) adaptation (including shortened and supplemented versions), redesign and translation or transfer into other languages or forms of presentation, including the right to produce audio, image or text formats, subtitling and duplication, distribution, making accessible to the public, publication or public reproduction of such versions, including on radio and television, by GIZ or by third parties contracted by GIZ;

(e) adaptation for film, radio broadcasting and television broadcasting purposes, in particular through corresponding adaptation for the purpose of filming and refilming, including on video, DVD, cine film and other technical processes, transmission on radio and television in any communication form and public reproduction, including repeated reproduction or reproduction outside the event, including through oral presentation, screening or performance, also for recording, transfer and reproduction on image or audio storage media and audiovisual media, in unprocessed or processed form, for reproduction, distribution and making accessible to the public in any version, number, edition or issue, for public performance, for public screening/presentation or reproduction.

GIZ shall make use of the rights of use transferred to it exclusively in carrying out measures of international cooperation and international educational work.] [The right of use also includes commercial utilisation outside the measure.

Computer programs: The right of use assigned to GIZ specifically includes the right to load, display, run, transmit, save, modify, translate, edit and reproduce the programs in unlimited quantities. For the purposes of processing, the Supplier shall provide GIZ with the respective source code and program documentation, copies of which GIZ shall also be entitled to pass on to third parties.

11.3 GIZ shall have the unrestricted right to assign sub-licences to third parties, e.g. its main commissioning parties and project partners for development-policy purposes [@for development-policy purposes].

12. Places of performance

The place of performance for the delivery of the goods is set out in the delivery clause.

The place of performance for work such as commissioning, installation or assembly is on site in Chad (address will be defined by giz).

The place of performance for GIZ’s obligation to return the work and materials in the event that the Contract is cancelled and for any supplementary obligations to be performed by Supplier is on site in Chad (address will be defined by giz). Supplier shall bear the costs of transport associated with the return of work and materials and the performance of supplementary obligations from the place of performance of supplementary obligations/return of work and materials to Supplier’s head office or from the Supplier’s head office to the place of performance of supplementary obligations/return of work and materials.

13. Other provisions

none

Eschborn, (date)

In accordance to section 8.7 of our General Purchase conditions (GPC) the contract signature is executed in text form. The contract is therefore valid and legally binding in addition with the name and position of GIZ-Employees.

Annexes

1. Description of work/services to be rendered (specification)

2. General Purchase Conditions (GPC 2023)

3. Conditions for Installation Work Abroad

4. Specimen: Advance Payment Guarantee

5. Specimen certificate of acceptance

Annex 3

CONDITIONS FOR INSTALLATION WORK ABROAD

A - REGULATIONS GOVERNING ALL work at the place of assignment (not just installation work)

1. Personnel – safety regulations

1.1. The Supplier undertakes to second only trained and experienced personnel in good health (if applicable, fit for work in the tropics) and with suitable language skills. The Supplier shall further ensure that all the necessary inoculations are carried out in good time.

1.2. In addition to complying with the accident prevention regulations of its professional association, Supplier shall observe the legal provisions and the official regulations in force at the place of assignment.

2. Preparation of the work at the place of assignment

2.1 Supplier must ensure in good time before seconding personnel that all the requisite preparations have been made for the work at the place of assignment, and report accordingly to GIZ before work begins. In particular, all the supplies and equipment required for installation work must be available at the place of assignment. The Supplier shall provide any special tools and equipment.

2.2 Immediately after arrival at the place of assignment, the Supplier’s personnel shall once again carry out appropriate checks and inform GIZ without delay (by letter, email or fax) of any obstacles to work.

2.3. Supplier shall bear any costs or disadvantages resulting from non-observance of Sections 2.1 and 2.2.

3. Personnel accommodation

The Supplier shall, in principle, be responsible for procuring the necessary accommodation. GIZ shall assist the Supplier as far as possible in the procurement of accommodation which conforms to local standards. However, GIZ shall not be liable for the procurement or quality of accommodation procured.

4. Liability in the event of illness and other impediments to work

Supplier shall bear all costs arising as a result of illness, accidents and other personnel-related impediments to work.

5. Period of work

5.1 Should the contractually agreed period for the work be exceeded, and should this result in additional work being required, GIZ shall have no obligation to pay remuneration and/or allowances for these additional periods. If GIZ is responsible for the period of work being exceeded, it shall bear the remuneration and/or allowance costs for the additional period of work, provided the Supplier has informed GIZ at least three days prior to the end of the period of work that the period of work will have to be extended, stating the length of the extension, and GIZ has agreed to this extension. Remuneration shall be based on the daily rate stipulated in the contract or the calculation basis used for the contract.

5.2 The Supplier shall inform GIZ without delay of any temporary or ongoing absence of one or more members of the team from the place of assignment.

5.3 The Supplier shall inform GIZ without delay of any reason for and anticipated duration of any interruptions to installation or other work.

5.4 Waiting times and interruptions for which GIZ is responsible, or which can be attributed to force majeure, shall be remunerated for a total period of up to 14 days, at the most, however, until the return of the personnel from the destination country. Only natural disasters, epidemics, insurrection, and intervention by the authorities not occasioned by the Supplier shall be considered force majeure.

6. Recall for important reason

6.1. If there is substantial reason, the Supplier shall, at the written request of GIZ, without delay replace or recall individual persons or, if necessary, all personnel from the destination country. The following in particular shall be considered a substantial reason:

• if it becomes clear that the personnel does not meet the health, language, professional or character requirements;

• if the conduct of the personnel is detrimental to the interests of the Federal Republic of Germany, or is the subject of a complaint by the government of the destination country or the project executing agency;

• if the continued presence of the personnel at the place of assignment is undesirable for political reasons.

6.2. In such or similar cases, the Supplier shall bear the cost of personnel replacement or recall to the extent that the Supplier or its personnel is responsible for the reasons for this measure. Otherwise, GIZ shall reimburse to the Supplier unavoidable expenses in connection with the replacement.

7. Third-party liability insurance

Prior to the departure of the personnel, the Supplier shall take out third-party liability insurance that also provides cover for the destination country. The sum insured must be at least EUR 5,000,000 for personal injury and at least EUR 1,000,000 for damage to property in each individual case. The premiums for the third-party liability insurance shall not be reimbursed. Upon request, the Supplier shall furnish proof that insurance coverage has been taken out.

@ B - ADDITIONAL PROVISIONS FOR WORK ON A TIME BASIS

8. Working hours

8.1 The working hours at the place of assignment shall depend on the specific performance requirements and conditions at the place of assignment.

8.2. The work-free day corresponding to a German Sunday shall be regulated by the legal provisions or religious practices at the place of assignment.

9. Remuneration and allowances

9.1. GIZ shall provide remuneration only for the days actually worked and only for the contractually agreed period. The full daily rate in accordance with Section 4.2.1 of the contract shall be based on an 8-hour working day; if working time is shorter, the full daily rate shall be reduced proportionately. Overtime and other bonuses shall not be remunerated separately and are covered by the agreed daily rate.

9.2. GIZ shall pay a daily allowance for each calendar day spent at the place of assignment. Should GIZ provide the personnel with free accommodation which conforms to local standards, the daily allowance shall be reduced by the lump-sum amount for an overnight accommodation allowance permitted under German tax law.

9.3. Furthermore, GIZ shall pay remuneration and allowances for each calendar day needed to travel to and from the place of assignment, but not for more than a total of two calendar days.

Annex 4

Advance Payment Guarantee

On behalf of [name and address of contractual partner]

– Vendor –

we

[name and address of bank]

– Guarantee Bank –

are drawing up the following

Advance Payment Guarantee

in favour of the

Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH,

Dag-Hammarskjöld-Weg 1-5,

65760 Eschborn Germany

– Purchaser –

The Vendor and Purchaser have concluded a contract on [date] with the order number [●] (‘Contract’). In this Contract, the Vendor undertakes to deliver [description of goods] with a total value of [●] to the Purchaser. The parties have agreed that the Purchaser will pay the Vendor a down payment of [●] per cent of the purchase price on receipt of a bank guarantee of the same amount in favour of the Purchaser.

In this Contract, the Guarantee Bank hereby undertakes – irrevocably, without examining the basic legal relationship and waiving any objection or plea arising from it – to pay to the Purchaser without delay upon the Purchaser’s first written request [alternatively: within [●] bank working days from receipt of the first written request of the Purchaser] an amount of up to

EUR [●]

(in words: [●] euros)

[optional:

plus interest at a maximum amount of [●]% p.a. from the date on which the Guarantee Bank receives the advance payment in favour of the Vendor up to the date when the advance payment is refunded under this guarantee]

if the Purchaser simultaneously confirms in writing to the Guarantee Bank that the Vendor has not delivered the goods and has not fulfilled its obligation to repay the advance payment.

[If requested by the contractual partner additionally:

This guarantee shall be reduced by [●] per cent of the value of each partial delivery under the Contract after the Guarantee Bank has informed the Purchaser of this partial delivery and the Purchaser has authorised the Guarantee Bank in writing to reduce the guarantee.]

[Optional: This guarantee shall not take effect until the advance payment specified above has been received unconditionally and in full, stating the guarantee number [●], in the account [●] of the Vendor with [the Guarantee Bank] (IBAN: [●], BIC code: [●]).]

This guarantee will automatically expire once the Guarantee Bank has received this certificate back. [Optional: This guarantee will expire on DD/MM/YYYY.]

[If requested by the contractual partner additionally:

This guarantee shall expire on [●], regardless of whether this certificate has been returned, unless the Purchaser has made written use of the guarantee before the end of this day. After the guarantee has expired, the Purchaser must immediately return the original of the guarantee certificate to the Guarantee Bank.]

The rights and obligations arising from this guarantee shall be governed by the law of the Federal Republic of Germany. The place of jurisdiction for all disputes resulting from this guarantee shall be Frankfurt am Main.

[Place], on [date]

……………………………………………….. [Signature of Guarantee Bank]

Annex 5

CERTIFICATE OF ACCEPTANCE

1. Acceptance of the services and materials to be supplied under this contract and, where applicable, subsequent orders took place on ...................... with the participation of

2. The following defects and unfinished work inputs were identified:

3. The entire scope of delivery was examined to ensure completeness. The following was established:

4. The arrangements made for this order shall apply with respect to the start and duration of the warranty.

5. All of the GIZ’s rights regarding warranty, damages and contractual penalties shall remain unaffected.

6. Notes