EARLY WORKS AGREEMENT This agreement, entered into as of the 21st day of September 2007, in Cardiff, United Kingdom / Frankfurt am Main, Germany by and between Flex Fuels Energy Limited London EC3A 8EP United Kingdom - hereinafter called „FLEX“ - and...
This
agreement, entered into as of the 21st day of
September
2007, in Cardiff, United Kingdom / Frankfurt am Main, Germany by
and
between
Flex
Fuels Energy Limited
00
Xx
Xxxx Xxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
-
hereinafter called „FLEX“ -
and
Lurgi
Aktiengesellschaft
Xxxxxxxxxx
0
X-00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
-
hereinafter called „LURGI“ -
1
PREAMBLE
Whereas,
FLEX intends to install an integrated biodiesel production facility with an
annual capacity of 200,000 tons biodiesel to be located within Cardiff, United
Kingdom (hereinafter called “Plant”), and
Whereas,
LURGI has developed and owns a proprietary process for the production of
biodiesel (hereinafter called “Process”), and
Whereas,
LURGI has special experience and competence in the design, installation,
start-up and operation of integrated biodiesel plants applying LURGI’s process,
and
Whereas,
FLEX is desirous to adapt LURGI’s process for the installation of its integrated
biodiesel plant and has therefore requested LURGI to provide the related early
works services (hereinafter also called „Work“) in such respect,
and
Whereas,
LURGI is willing to render such Work.
Now,
therefore, FLEX and LURGI enter into the following agreement:
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1
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Basis
and Scope of Work
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1.1
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LURGI
shall execute the Work as defined in Annex I. LURGI shall base the
Work
upon the outline functional specification as per Annex
II.
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1.2
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LURGI
shall render additional services at FLEX’s plant site upon request of FLEX
related to process consultation, supervision of engineering and plant
construction, start-up assistance, proof of performance guarantees,
etc.
subject to terms and conditions as stipulated in Article
2.2..
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2
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2
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Contract
Price, Daily Rates and Price
Basis
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2.1
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Agreement
Price
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2.1.1
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The
price for the early works services as defined under Article 1.1 above
amounts to:
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EUR
360,000.00
(in
words: three hundred and sixty thousand Euro only)
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2.2
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Daily
Rates for Additional Services
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Section
removed for reasons of commercial confidentially.
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2.3
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Price
Basis
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Section
removed for reasons of commercial confidentially.
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2.4
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Taxes,
Levies
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Section
removed for reasons of commercial confidentially.
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2.5
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For
the avoidance of doubt the liability of FLEX howsoever and wheresoever
arising under or out of this agreement shall in no circumstances
exceed
the said sum of EUR 360,000.00 unless both FLEX and LURGI have agreed
to
any new price in writing.
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3
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Terms
of Payment
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Section
removed for reasons of commercial confidentially.
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4
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Execution
Period
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Section
removed for reasons of commercial confidentially.
3
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5
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Change
of Work
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5.1
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Should
FLEX require engineering work over and above the Work as defined
in Annex
I, FLEX shall have the right at any time to order changes in the
Work.
Upon FLEX’s respective written request LURGI shall furnish FLEX with a
written statement specifying:
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-
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LURGI’s
estimate of the increase in the total cost
involved;
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-
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any
effect such changes in LURGI’s work may have on any other provision of
this agreement;
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-
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such
other detail as FLEX may require.
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5.2
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If
FLEX agrees to the statement referred to in the change of work
notification from LURGI, FLEX shall notify LURGI thereof in writing
within
7 (seven) working days from receipt of LURGI’s notification whereupon the
change of work shall be deemed to be incorporated into LURGI’s scope of
work.
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5.3
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LURGI
shall not start work that may effect a change in the work and involve
an
increase in cost before FLEX has agreed to the aforesaid
statement.
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5.4
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Payments
for authorised changes in work shall be made by FLEX within 10 (ten)
days
after receipt of corresponding invoice to LURGI’s bank account as stated
in the invoice.
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6
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Warranty
– Limitation of Liability
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6.1
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Warranty
for Engineering
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LURGI
shall perform the early works services in accordance with internationally
recognised practices and standards.
If,
nevertheless, LURGI’s work proves to be wholly or partially incorrect, defect or
incomplete for reasons attributable to LURGI, LURGI’s liability shall be
limited, to the exclusion of any further rights and remedies of FLEX, to the
cost-free correction of any defective work. Any action or proceeding based
on
LURGI’s failure to perform its obligations hereunder must be brought or
instituted immediately by FLEX after discovery, at the latest 12 (twelve) months
from submission of the Work or 18 (eighteen) months after the effective date
of
this agreement, in case of delays not attributable to LURGI.
LURGI
shall perform the early works services with the reasonable skill and care to
be
expected of an experienced design and build contractor of works of a similar
size and nature to the Plant and in accordance with internationally recognized
practices and standards.
4
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6.2
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Limitation
of Liability
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6.2.1
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LURGI’s
overall total liability under or in connection with this agreement
shall
be limited to a maximum amount of 5 (five) percent of the agreement
price
as per Article 2.1.
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6.2.2
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LURGI
shall not be liable under any theory of law whatsoever, whether based
on
breach of agreement, strict liability, tort or otherwise, for any
special,
incidental, for indirect and/or consequential damage or losses such
as,
but not limited to, loss of business opportunities, loss of profit,
increased cost of construction investment, interest, financing or
other
increased or additional cost, no matter what statutory basis such
claims
for reimbursement may have.
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7
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Force
Majeure
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Neither
party hereto shall be held responsible for any delay or failure to perform
any
or all of the obligations imposed upon such party caused by occurrences beyond
the control of the party concerned, including but not limited to acts of God,
Government regulations, strikes, lockouts or other acts of workmen, fires,
floods, explosions, riots, war, rebellion and sabotage. The time for
implementing this agreement shall be extended by a period equivalent to the
time
Force Majeure lasts.
The
party
affected by the circumstances of Force Majeure shall notify the other party
of
the beginning and of the end of Force Majeure immediately by telefax e-mail
or
and confirm the e-mail or telefax message by a letter within 15 (fifteen) days.
In case of non-observance of such notification by the party so affected, the
party so affected shall not be entitled to make reference to Force
Majeure.
Should
such circumstances of Force Majeure last over a period of more than 6 (six)
months, the parties shall meet and discuss the best way to proceed with the
execution of this agreement. If an agreement cannot be reached the case then
shall be submitted to arbitration for final settlement in accordance with the
stipulations of Article 8.
Payments
due for services which have already been executed shall not be affected by
Force
Majeure.
5
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8
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Applicable
Law and Arbitration
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8.1
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The
legal relations between the parties shall in all respects be governed
by
the English law of England and Wales without regard to the principles
of
conflicts of laws.
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8.2
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The
parties will try to settle any disputes amicably. In case they fail
to
succeed, the controversies will be finally settled by three arbitrators
in
accordance with the Rules of the International Chamber of Commerce,
Paris/France.
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The
venue
of the arbitration shall be Zurich, Switzerland.
Judgement
upon the award may be entered in any court having jurisdiction, or application
may be made to such court for a judicial acceptance of the award, as the case
may be.
The
arbitration shall be held in the English language.
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9
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Secrecy
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9.1
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FLEX
undertakes to keep secret all know-how, experience and information
concerning LURGI’s process of which it became or becomes aware in
connection with the installation of the plant or which it develops
jointly
with LURGI for a period of 15 (fifteen) years after this agreement
has
come into force, and to use them only for the purposes of this agreement
and not to disclose them to third
parties.
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9.2
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LURGI
undertakes the same obligation with respect to the secret know-how,
experience and information of which it became or becomes aware through
FLEX in connection with the installation of the
plant.
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9.3
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LURGI
and FLEX agree that they will impose the same secrecy obligation
on their
employees to the extent that is legally possible - even for the time
after
they have left the company.
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9.4
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The
obligations as per Articles 9.1 and 9.2 shall not apply to such know-how,
experience and information
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-
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which
had been known to LURGI or FLEX or were evident before they began
their
co-operation; or
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-
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which
LURGI or FLEX legally received from third parties without any secrecy
obligation, provided that the third party did not receive this know-how,
experience and information either directly or indirectly from FLEX
or
LURGI; or
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-
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which
become evident without any action by LURGI or FLEX after they have
begun
their co-operation, the necessary evidence shall in this case be
provided
by the party having recourse of this clause;
or
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-
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which
become generally available in the public domain through technical
literature, magazines, trade publications,
etc.
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6
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9.5
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LURGI
and FLEX shall be entitled to pass on any know-how, experience and
information that they have received from the other party under this
agreement to third parties to the extent that this is necessary for
LURGI
or FLEX to install and operate the biodiesel plant and to provide
their
supplies and services for the plant. This shall apply also to repairs,
improvements and modifications that become necessary after the guarantee
period has expired. LURGI or FLEX shall bind such third parties to
the
same extent of secrecy and restricted use of the know-how, experience
and
information that they are themselves required to
observe.
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9.6
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Further,
and without prejudice to the foregoing LURGI agrees that FLEX may
pass on
any work (including information which LURGI regard as confidential)
produced pursuant to the terms of this agreement for the purpose
of
getting all necessary planning and environmental permits for the
Plant and
for raising finance to construct and operate the
Plant.
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10
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General
Provisions
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10.1
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This
agreement constitutes the entire agreement and understanding between
the
authorised representatives of the parties and supersede any and all
written or oral prior agreements and undertakings. No modification,
amendment or waiver of any of its provisions shall be valid unless
in
writing and signed by the parties.
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However
in signing this agreement the Parties acknowledge that it is the wish of both
FLEX and LURGI to reach a future agreement for LURGI to provide a full contract
for the design, procurement, construction and commissioning of the Plant ("the
Future Contract"). If such a Future Contract does prove to be possible then
the
rights and obligations of both Parties under this agreement shall be subsumed
into the terms of the said Future Contract.
7
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10.2
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All
documents, notices and other communications should be forwarded to
the
following addresses:
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for
FLEX:
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Flex
Fuels Energy Limited
Xxxxx
Xxxxx
Xxxxxx
Xxxxx
Xxxxxxx
XX00 0XX
Xxxxxx
Xxxxxxx
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for
LURGI:
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Lurgi
Aktiengesellschaft
Xxxxxxxxxx
0
X-00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
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10.3
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This
agreement shall become effective
upon
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-
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execution
thereof by both parties, and
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-
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receipt
of the down payment to be made by FLEX to LURGI as per Article 3.1.1
above, and
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10.4
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If
any term or provision of this agreement proves to be illegal, invalid
or
unenforceable the other terms or provisions shall not be affected
thereby.
FLEX and LURGI hereto shall endeavour to replace retroactively such
illegal, invalid or unenforceable terms or provisions by legal, valid
or
enforceable terms or provisions which best correspond to their original
intentions.
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10.5
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FLEX
shall not assign its contractual rights to any third party, except
with
prior written agreement from LURGI.
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10.6
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Except
for the rights explicitly granted under this agreement, FLEX shall
have no
further rights or remedies under this
agreement.
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10.7
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The
following Annexes form an integral part to this
agreement:
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Annex
I
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Scope
of Work
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Annex
II
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Outline
Functional Specification
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Annex
III
|
LAPPC
& IPPC
|
8
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10.8
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The
agreement shall be read as a whole. In case of discrepancy or
inconsistency between the body of the agreement and the Annex, the
body of
the agreement shall prevail.
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10.9
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All
correspondence and documents shall be made in the English
language.
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10.10
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This
agreement is signed in two (2) identical
copies.
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In
witness thereof, FLEX and LURGI hereto have caused this document to be executed
and signed as follows on the day and date first above written.
| For and on behalf of | For and on behalf of |
| Flex Fuels Energy Limited | Lurgi Aktiengesellschaft |
| By: | By: |
| ____________________________ | ____________________________ |
| Xxxxxx Xxxxxx | Jan-Xxxx Xxxxx |
| Director | Area Sales Director |
| ____________________________ | |
| Xxxxx Xxxxx | ____________________________ |
| Project Manager | Dirk Steinigen |
| Director Operations & Engineering | |
9
Annex
I – Scope of Work
Section
removed for reasons of commercial confidentially.
Annex
II – Outline Functional Specification
Section
removed for reasons of commercial confidentially.
Annex
III – LAPPC & IPPC
Section
removed for reasons of commercial confidentially.
