GENERAL CONDITIONS (GC) 4) MACHINERY, TOOLS & TACKLES AND MATERIALS
The SP might have brought-in machinery, tools & tackles
SP- Thermax
1) INTERRUPTIONS/HOLD-UP/SUSPENSION
In the event the any of the Services of the SP is interrupted
or held up for reasons attributable to the Owner, the SP is
entitled for the full payment for the month or as the case
may be. In the event of such interruption / hold-up /
suspension continuing for longer than 30 days, the SP shall
be at its liberty to withdraw its personnel from the Site. In
such event, Owner shall be liable to pay demobilization / re-
mobilization charges to the SP. In the event of such
interruption / hold-up / suspension continuing for longer
than 45 days, the SP shall reserve the right to terminate this
Contract as a breach of material obligation of the Owner.
2) PERMITS & CHANGE OF LAW
a) The Owner shall at its cost obtain and maintain all and any
statutory permits/clearances that are necessary for
operation and maintenance of the Power Plant.
b) In the event of any variation or imposition of any new input
and / or terminal taxes, duties, levies and cesses by
Central/State/Local authorities shall be to Owner’s account.
c) In the event any change of law, rules & regulations,
restrictions which can affect the performance output agreed
by the SP and/or which will have an impact to the SP, with
respect to its routine way of functioning in performing its
obligations and/or which shall have an impact in complying
to the labour laws, minimum wages or any other such
requirements, the impact of which shall be to Owner’s
account, provided the SP shall prove to the Owner that a
change of rules/regulations have come into force after the
award of the Contract.
3) INSURANCE
a) The Insurance towards machinery break-down, general
liability, third party liability, fire, earth-quake, theft
pilferage, natural calamities and terrorism shall be covered
by Owner at its cost. The Owner shall incorporate the SP
and its Sub-contractors as additional insured with a waiver
of subrogation rights in favour of them and in favour of
their Insurers. The Owner shall, as a material obligation,
maintain such insurance policies valid at all times until the
completion of Services and a provide a copy of the same to
SP.
b) The SP shall not be responsible for any losses, costs and
damages to property and/or loss of life and injury caused
by any reasons, except for SP’s gross negligence or wilful
misconduct.
c) The SP shall maintain and renew at all times at its cost a
personal accident policy in respect of its employees against
personal injury or any accident at work. The SP shall
ensure that the Sub-contractors too maintain and renew a
similar coverage for its employees.
d) Notwithstanding anything contained in the Contract, the
SP shall have no liability whatsoever for or with respect to;
loss or destruction/damage to the Plant or any parts
thereof of property of any third party or injury or loss of
life, if destruction, damage, injury or loss of life is caused
by any War Risks and the Owner shall indemnify and hold
the SP harmless from any and all claims, law suits, costs,
damages and expenses arising in consequence of or in
connection with the same.
and might have supplied some excess materials during the
performance of scope. The SP shall have the right to
remove the any machinery or tools & tackles owned by the
SP or the materials supplied in excess , from the Site , if in
the SP’s opinion such machinery, tools & tackles are no
longer required for the performance of its scope and the
excess materials supplied if any has to be removed. The
Owner shall issue the necessary gate pass forthwith as and
when requested for removing such machinery, tools &
tackles and the excess materials and the SP may claim the
impact due to any delay by the Owner in facilitating the
removal of such items.
5) SUB- CONTRACTING
The SP may sub-contract some parts of its scope like
mechanical maintenance, operation of WTP, AHP, CHP and
may hire technicians, casual labourer from its approved
vendors. The SP shall look into that the sub-contract parts
are meeting the compliance to the provisions of the
Contract. The SP shall be responsible to the Owner for the
acts and omissions of its sub-contractor
6) SUSPENSION:
Any suspension of the services by the Owner shall be
subject to mutual acceptance only and on reaching
agreement with the SP with respect to the payment of
wages for the personnel/work force that have been
engaged in the services, as this service being labour
intensified and suitable compensation may have to be paid
to the personnel/work force with a reasonable notice
period.
7) FORCE MAJEURE (“FM”)
1) FM means any event or circumstance that is beyond the
reasonable control of either Party(and its sub-contractors).
Without limitation to the foregoing, the FM shall include
the following occurrences:
a) War (whether declared or not), invasion, act of enemies,
riots, civil commotion, labour disturbance leading to strike,
lockouts, layoffs, mutiny, insurrection, invasion, rebellion,
revolution, acts of terrorism, political and other
disturbances or instability; military or usurped power,
explosive materials, ionising radiation or contamination by
radio activity
b) Epidemics, pandemic, major accidents, major break-down
of machineries sabotage, fire, earthquake, floods, heavy or
un-favourable weather conditions or cyclone;
c) Government orders/restrictions, blockade, sanctions or
legal enactment affecting the performance of the Contract
d) Restrictions/lockdown or similar or regional/national strike
by transporters or at Port.
2) The Owner’s failure/inability to effect due payment to SP
as per the Contract shall not be regarded as FM.
3) Effect of FM
a) Neither Party shall be considered to be in default or in
breach of its obligations under this Contract to the extent
that performance is prevented by any circumstances of
FM, provided a notice has been issued by the affected
Party to the other Party within 5 days of occurrence of FM.
b) If the SP incurs delays and/or any cost due to FM, the
Owner shall excuse delay and/or reimburse such costs.
The SP shall be continued to be paid by the Owner for all
 the costs incurred by the SP of maintaining the O&M
personnel/work force if the performance is suspended due
to FM.
c) If the FM situation continues for more than forty-five days,
the Parties shall mutually discuss and come to an
agreement regarding further course of action. If no
agreement is reached and the FM situation continues
beyond 60 days, either of the Parties may terminate the
Contract and in such an event the SP shall be paid
forthwith all its due payments along with the costs and
expenses towards demobilization. The securities provided
by the SP if any shall also be duly discharged by the Owner.
8) TERMINATION FOR SP’s EVENT OF DEFAULT
1) The Owner may initiate termination of Contract incase of
following events:
a) The SP has become insolvent or the process of liquidation
has commenced; or
b) Breach of its material obligation by SP or
c) Contract is assigned to a third party without Owner’s
consent
2) In case of events occurring as stated above, the Owner
shall serve a notice in writing of the alleged default. If
within 30 days of delivery of such notice, the SP does not
either;
a) establish that it is not default under the Contract; or
b) rectify the alleged default within such 30 days-notice; or
c) establish to the Owner’s satisfaction that such default shall
be rectified within a reasonable period of time, which shall
be mutually discussed and agreed to by the Parties;
the Owner shall be entitled to terminate this Contract, by
providing a notice of termination within 7 days of expiry of
the previous notice period as stated under clause 11.2
3) Upon delivery of notice of 7-days as stated under clause
11.2, the SP shall cease all further activities at Site. The
Owner shall be entitled to recover five percent of the
annual Contract Price as the termination fee towards all
losses and damages to be recovered from the SP and the
Owner shall pay to SP promptly the remining payment due
to SP and shall also discharge the securities provided by
the SP, if any. The SP shall peacefully demobilize its men
and machineries from Site.
9) TERMINATION FOR OWNER’s EVENT OF DEFAULT
1) The SP may initiate termination of Contract incase of
following events:
a) The Owner has become insolvent or the process of
liquidation has commenced; or
b) Breach of its material obligation by the Owner without
limitation to delay in release of payments to SP; or
c) Safety Issues for the SP’s manpower due to local/political
disturbance or statutory Issues beyond SP’s control; or
d) Contract is assigned to a third party without SP’s consent
2) In case of events occurring as stated above, the SP shall
serve a notice in writing of the alleged default. If within 30
days of delivery of such notice, the Owner does not either;
a) establish that it is not default under this Contract; or
b) rectify the alleged default within such 30 days notice; or
c) establish to the SP’s satisfaction that such default shall be
rectified within a reasonable period of time, which period
shall be mutually discussed and agreed to by the Parties;
the SP shall be entitled to terminate this Contract, by
providing a notice of termination within 7 days of expiry of
the previous notice period as stated under clause 12.2
3) Upon delivery of 7-days notice as stated under clause 12.2,
the SP shall cease all further activities at Site. The Owner
shall within seven days release all the payments due to the
SP including the costs and expenses committed in
connection with the Services and shall discharge the
securities provided if any by the SP. The SP shall,
additionally, be entitled to ten percent of the annual
Contract Price as the termination fee towards all losses
and damages to be recovered from the Owner. The Owner
shall facilitate the SP peacefully demobilizing its men and
machineries from Site.
10) TERMINATION FOR CONVINENCE
In case of termination of Contract for mutual convenience,
the termination notice shall be served by either of the
Parties one months prior to the actual effect of
termination, The Parties shall continue to discharge each
other’s obligations during the notice period of four
months. Incase the termination for convenience is
initiated by the Owner, the SP shall be entitled for an
additional ten percent of the annual Contract Price as a
compensation towards demobilization expenses. The
Parties shall cooperate with each other in peaceful
demobilization of men and machineries by the SP and the
handing-over of the Plant to the Owner by the SP in good
conditions.
10) CONSEQUENTIAL DAMAGES
a) Save as otherwise agreed in this Offer/Contract, the SP
shall not be liable to Owner or to any other parties,
whether under Contract, tort (including the acts of
negligence), strict liability or other theory of law, for loss of
profits (anticipated or otherwise) by reasons of Plant being
shut-down or interruption in operation or increased cost of
operations, cost of purchase of power, cost of money, loss
of use of capital or revenue or for any special, incidental
indirect or consequential loss or damage of any nature
whatsoever.
b) Notwithstanding anything contained in the offer/Contract,
the maximum liability of the SP for any reasons
whatsoever shall not be more than five percent of the
annual Contract Price payable in a particular year in which
the liability has arisen.
11) INDEMNITY
The Parties shall indemnify, defend and hold harmless each
other including its officers, directors, employees,
representatives and agents from and against all damages,
claims, liabilities, losses, and other expenses, including
reasonable attorney’s fees, and costs that arises due to (i)
injury to or death of any thirty party person, (ii)
loss/damage to any third party property of any kind and
(iii) claims against injury or death of an employee of a
Party, except to the extent that such an incident was
caused due to gross negligence or willful misconduct of a
Party.
The Parties shall also indemnify and hold harmless each
other against any claim, liability, loss or expenses caused
on account of failure to maintain the Insurance coverage,
failure to pay the taxes/duties/levies and/or failure to
maintain/renew any permits / statutory clearances
 including compliance to labour laws in accordance with the
contractual provisions.
12) NOTICES
1) Any notice to be issued under the Contract shall be in
writing, in English and signed by the Party giving it and,
shall be delivered by hand or sent by courier or, or sent by
an email/fax
2) The addresses and email/ fax number of the Parties for the
purposes of this clause shall be agreed upon.
3) Any notice to be given or made under the Contract shall, in
the absence of earlier receipt, be deemed to have been
received as follows:
a) if delivered by hand, at the time of actual delivery; or
b) if couriered through a reputed service, at the time of
actual delivery; or
c) if sent by email/fax, with a confirmed receipt of
transmission from the receiving machine, on the day on
which transmitted;
provided that a notice deemed to have been received on a
day which is not a business day, or after normal business
hours in the place of receipt, shall instead be deemed to
have been received on the next business day at the
commencement of normal business hours in the place of
receipt.
13) DISPUTE RESOLUTION – GOVERNING LAW
Any dispute arising out of or in connection with this
Contract, including any question regarding its existence,
validity or termination, shall be referred to and finally
resolved by arbitration in Pune in accordance with the
Arbitration and Conciliation Act of 1996 for the time being
in force, which rules are deemed to be incorporated by
reference in this clause and the award of the arbitration
shall be final and binding the Parties. The tribunal shall
consist of three arbitrator(s). The language of the
arbitration shall be English. The Contract/Offer shall be
governed by, and construed in accordance with, laws of
India. The courts in Pune shall have exclusive jurisdiction.
14) GENERAL PROVISIONS
1) Independent Contract
Notwithstanding anything contained in the Contract or in
any other contracts entered between the Parties or its
group companies, it is agreed between the Parties that this
Contract is an independent contract and the Parties shall
not raise claim of any damages, penalties, costs, levies of
whatsoever nature and/or any cross liability arising out of
any other contract(s) entered by Parties or its respective
group companies. The SP is an independent contractor,
and the relationship created hereby shall not be deemed
to be that of principal and agent.
2) Non-Solicitation of Employees
The Parties covenant and agree that during the currency of
the Contract and for twenty four (24) months after the
termination thereof (regardless of the reason for the
termination), neither Party shall, directly including group
companies or indirectly through any person or entity,
recruit, solicit, or induce, or attempt to recruit, solicit, or
induce, any non-clerical employee of the other Party, to
terminate their employment relationship with the other
Party.
3) Confidentiality
a) Neither Party shall disclose any confidential information
exchanged between the Parties to any third Party without
the prior written consent of the other Party, except that
the SP may disclose to its Sub-contractors to the extent
necessary for the performance of this Contract.
b) Information which: is in the public domain; comes into the
public domain or is received in good faith from a third
party; disclosed by order of a court of law; provably
independently generated; shall not be regarded as
confidential.
c) The provisions of this clause shall bind the Parties for two
years from the date of termination of the Contract.
d) The SP may refer to the existence of the Contract or to the
Customer in any promotional or experience material.
4) Amendment and Waiver
The contractual terms and conditions shall be altered only
by way of an amendment duly executed by the Parties.
. Any failure to exercise or any delay in exercising any right,
remedy, or power hereunder shall not operate as a waiver
thereof and no such waiver shall operate as a waiver of,
estoppel.
5) Assignment
Neither Party shall assign the Contract to any third-party,
other than to the group company, without the written
consent of the other Party.
6) Validity of Contract
Unless otherwise terminated by either of the Parties
pursuant to the provisions contained herein, this Contract
shall be valid, subsisting and binding between the Parties
until the completion of the Services and settlement of
payment towards such Services.
7) Contract not to be Invalid for want of Authority
The Owner and the SP expressly declare and agree that the
persons executing this Contract on behalf of the respective
Parties have the requisite authority to execute this
Contract and to bind the respective Parties. This Contract
shall not be challenged for want of authority to the person
executing the Contract
8) Severability
If any provision of this Offer/Contract will be declared or
become invalid, illegal, unenforceable or in conflict with
the law of any jurisdiction and/or under arbitration rules,
the remaining provisions will remain valid and enforceable.
9) No Third-party rights
Nothing in this Contract confers on any third party the
right to enforce any provision of this Contract.
10) Entire Contract
The Contract supersedes all prior agreements,
arrangements and undertakings between the Parties and
constitutes the entire agreement between the Parties
11) Rights and Remedies
The Parties may exercise the rights herein conferred in
addition to all or any other rights or remedies which the
Parties shall or may be entitled to, whether at law or under
the Contract.
Emergency / Unsafe conditions:
12)During the performance of the O&M services, if the
Operator identifies an unsafe condition that has developed
or is likely to develop for any reason whatsoever, he will
raise a request to the concerned person of the
client/Owner and seek for an immediate and/or a timely
liquidation of the unsafe condition.

The Owner/client shall forthwith acknowledge such

request and provide full priority/immediate attention to
discuss and mutually agree upon a risk mitigation plan. In
line with such mitigation plan the Owner/client will extend
full cooperation to the Operator to set right the unsafe
condition by providing all resources in his scope including
but not limited allowing a partial or complete shutdown of
the Plant to carry out any modifications to the identified
part of the Plant for setting right of the unsafe condition.

Should the Owner/client delay or deny an opportunity to

set right the unsafe condition, the Operator shall have the
right, notwithstanding any other provisions of the
Contract/Order, to restrict the movement of his manpower
within the location of the unsafe condition and if the
condition persists withdraw his manpower completely and
force a suspension or even termination of further services
and in such an event the Operator shall not be liable for
loss or damages of any nature whatsoever towards the
stoppage of the Plant.