FIDIC 设计采购施工合同条件(银皮书 第1-4.5条中英文)

FIDIC 设计采购施工合同条件 (银皮书第1-4.5条中英文) FIDIC CONTRACT OF DESIGN, PURCHASE AND CONSTRUCTION (EPC)交钥匙项目合同条件 1.1.6 Other Definitions 其他定义 Contractors Documents means the calculations, computer programs and
FIDIC 设计采购施工合同条件(银皮书  第1-4.5条中英文)
1.1.6        Other Definitions 其他定义     “Contractor’s Documents” means the calculations, computer programs and other software, drawings, manuals, models and other documents of a technical nature supplied by the Contractor under the Contract; as described in Sub-Clause 5.2 [Contractor’s Documents].
  “承包商文件”系指第5.2条款[承包商文件]中所述的,承包商根据合同应提交的所有计算书、计算机程序和其他软件、图纸、手册、模型、以及其他技术性文件.     “Country” means the country in which the Site (or most of it) is located, where the Permanent Works are to be executed.
  “工程所在国”系指实施永久工程的现场(或其大部分)所在的国家.    “Employer’s Equipment” means the apparatus, machinery and vehicles (if any) made available by the Employer for the use of the Contractor in the execution of the Works, as stated in the Employer’s Requirements; but does not include Plant which has not been taken over by the Employer.
 “雇主设备”系指雇主要求中所述的,由雇主提供的供承包商在实施工程中使用的仪器、机械和车辆(如果有),但不包括尚未经雇主接收的生产设备.     “Force Majeure” is defined in Clause 19 [Force Majeure].
  “不可抗力”见第19条[不可抗力]的定义.     “Laws” means all national (or state) legislation, statutes, ordinances and other laws, and regulations and by-laws of any legally constituted public authority.
   “法律”系指所有全国性(或洲的)法律、条例、法令和其他法律,以及任何合法建立的公共当局制定的规则和细则等.    “Performance Security” means the security (or securities, if any) under Sub-Clause 4.2 [Performance Security].
“履约担保”系指根据第4.2款[履约担保]规定的担保(或各项担保,如果有).     “Site” means the places where the Permanent Works are to be executed and to which Plant and Materials are to be delivered, and any other places as may be specified in the Contract as forming part of the Site.
  “现场“系指将实施永久工程和运送生产设备与材料到达的地点,以及合同中可能指定为现场组成部分的任何其他场所.     “Variation” means any change to the Employer’s Requirements or the Works, which is instructed or approved as a variation under Clause 13 [Variation and Adjustment].
1.2 Interpretation  解释
In the Contract, except where the context requires otherwise:
(a)              Words indicating one gender include all genders; 表示某一性别的词,包括所有性别;
(b)    Words indicating the singular also include the plural and  indicating the plural and words indicating the plural also include the singular.
(c)   Provisions including the word “agree”, ”agreed” or “agreement”    require the agreement to be recorded in writing, and
(d)            “written” or “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record.
The marginal words and other headings shall not be taken into consideration in the interpretation of these Conditions.
1.3 Communications  通信交流
Wherever these Conditions provide for the giving or issuing of approvals, certificates, consents, determinations, notices and requests, these communications shall be:
(a)            in writing and delivered by hand(against receipt), sent by mail or courier, or transmitted using any of agreed systems of electronic transmission as stated in the Particular Conditions; and
(b)       delivered, sent or transmitted to the address for the recipient’s communications as stated in the Contract. However:
(i)               if the recipient gives notice of another address, communications shall thereafter be delivered accordingly; an
(ii)          if the recipient has not stated otherwise when requesting an approval or consent, it may be sent to the address from which the request was issued.
 Approval, certificates, consents and determinations shall not be unreasonably withheld or delayed.
1.4 Law and Language  法律和语言
The Contract shall be governed by the law of the country (or other jurisdiction) stated in the Particular Conditions.
If there are versions of any part of the Contract which are written in more than one language, the version which is in the ruling language stated in the Particular Conditions shall prevail.
The language for communications shall be that stated in the Particular Conditions. If no language is stated there, the language for communications shall be the language in which the Contract (or most of it) is written.
1.5 Priority of Document 文件优先次序
The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the following sequence:
(a)            the Contract Agreement;合同协议书,
(b)              the Particular Conditions;专用条件,
(c)                  these General Conditions;本通用条件,
(d)                the Employer’s Requirements;        雇主要求,
(e)                  The Tender and other documents forming part of the Contract .
1.6 Contract Agreement 合同协议书
The Contract shall come into full force and effect on the date stated in the Contract Agreement. The costs of stamp duties and similar charges (if any) imposed by law in connection with entry into the Contract Agreement shall be borne by the Employer.
1.7 Assignment 权益转让
Neither Party shall assign the whole or any part of the Contract or any benefit or interest in or under the Contract. However, either Party:
(a)                                           may assign the whole or any part with the prior agreement of     the other Party, at the sole discretion of such other Party, and
(b)                                           may, as security in favor of a bank or financial institution, assign its right to any moneys due, or to become due, under the Contract.
1.8 Care and Supply of Document  文件的照管和提供
Each of the Contractor’s Documents shall be in the custody and care of the Contractor, unless and until taken over by the Employer. Unless otherwise stated in the Contract, the Contractor shall supply to the Employer six copies of each of the Contractor’s Documents.
The Contractor shall keep, on the Site, a copy of the Contract, publications named in the Employer’s requirements, the Contractor’s Documents, and Variations and other communications given under the Contract. The Employer’s Personnel shall have the right of access to all these documents at all reasonable times.
If a Party becomes aware of an error or defect of a technical nature in a document which was prepared for use in executing the Works, the Party shall promptly give notice to the other Party of such error or defect.
1.9 Confidentiality 保密性
Both Parties shall treat the details of the Contract as private and confidential, except to the extent necessary to carry out obligations under it or to comply with applicable Laws. The Contractor shall not publish, permit to be punished, or disclose any particulars of the Works in any trade or technical paper or elsewhere without the previous agreement of the Employer.
1.10 Employer’s Use of Contractor’s Documents  雇主使用承包商文件
As between the Parties, the Contractor shall retain the copyright and other intellectual property rights in the Contractor’s Documents and other design documents made by(or on behalf of) the Contractor.
The Contractor shall be deemed (by signing the Contract) to give to the Employer a non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the Contractor’s Documents, including making and using modifications of them. This licence shall:
(a)                                           apply throughout the actual or intended working life (whichever is longer) of the relevant parts of the Works,
(b)                                           entitle any person in proper possession of the relevant part of the Works to copy, use and communicate the Contractor’s Documents for the purposes of completing, operating, maintaining, altering, adjusting, repairing and demolishing the Works, and
(c)                                           in the case of Contractor’s Documents which are in the form of computer programs and other software, permit their use on any computer on the Site and other places as envisaged by the Contract, including replacements of any computers supplied by the Contractor.
The Contractor’s Documents and other design documents made by (or on behalf of) the Contractor shall not, without the Contractor’s consent, be used, copied or communicated to a third party by (or on behalf of) the Employer for purposes other than those permitted under this Sub-Clause.
1.11 Contractor’s Use of Employer’s Documents承包商使用雇主文件
As between the Parties, the Employer shall retain the copyright and other intellectual property rights in the Employer’s Requirements and other documents made by (or on behalf of) the Employer. The Contractor may, at his cost, copy, use, and obtain communication of these documents for the purposes of the Contract.
They shall not, without the Employer’s consent, be copied, used or communicated to a third party by the Contractor, except as necessary for the purposes of the Contract.
1.12 Confidential Details  保密事项
The Contractor shall not be required to disclose, to the Employer, any information which the Contractor described in the Tender as being confidential. The Contractor shall disclose any other information which the Employer may reasonably require in order to verify the Contractor’s compliance with the Contract.
1.13 Compliance with Laws  遵守法律
The Contractor shall, in performing the Contract, comply with applicable Laws. Unless otherwise stated in the Particular Conditions:
(a) the Employer shall have obtained (or shall obtain) the       planning, zoning or similar permission for the Permanent Works, and any other permissions described in the Employer’s Requirements as having been (or being) obtained by the Employer; and the Employer shall indemnify and hold the Contractor harmless against and from the consequences of any failure to do so; and
(b) the Contractor shall give all notices, pay all taxes, duties and fees, and obtain all permits, licences and approvals, as required by the Laws in relation to the design, execution and completion of the Works and remedying of any defects; and the Contractor shall indemnify and hold the Employer harmless against and from the consequences of any failure to do so.
1.14 Joint and Several Liability共同的和各自的责任
If the Contractor constitutes (under applicable Laws) a joint venture, consortium or other unincorporated grouping of two or more persons: 如果承包商是由两个或两个以上当事人(依照适用法律)组成的联营体、联合体,或其他未立案的组合:
(a)    these persons shall be deemed to be jointly and severally                                  liable to the Employer for the performance of the Contract;
(b) these persons shall notify the Employer of their leader who  shall have authority to bind the Contractor and each of these persons; and
(c)    the Contractor shall not alter it’s composition or legal status without the prior consent of the Employer.
2          The Employer雇主.
2.1 Right of Access to the Site现场进入权
The Employer shall give the Contractor right of access to, and possession of, all parts of the Site within the time (or times) stated in the Particular Conditions. The right and possession may not be exclusive to the Contractor. If, under the Contract, the Employer is required to give (to the Contractor) possession of any foundation, structure, plant or means of access, the Employer shall do so in the time and manner stated in the Employer’s Requirements. However, the Employer may withhold any such right or possession until the Performance Security has been received.
雇主应在专用条件中规定的时间(或几个时间)内,给承包商进入和占用现场各部分的权利.此项进入和占用权可不为承包商独享.如果根据合同,要求雇主(向承包商)提供任何基础、结构、生产设备或进入手段的占用权,雇主应按雇主要求中规定的时间和方式提供. 但雇主在收到履约担保前,可保留上述任何进入或占用权,暂不给予.
If no such time is stated in the Particular Conditions, the Employer shall give the Contractor right of access to and possession of, the Site with effect from the Commencement Date.
If the Contractor suffers delay and/or incurs Cost as a result of a failure by the Employer to give any such right or possession within such time, the Contractor shall give notice to the Employer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:
(a)                                           an extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and
(b)        payment of any such Cost plus reasonable profit, which shall be added to the Contract Price.
After receiving this notice, the Employer shall proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine these matters.
However, if and to the extent that the Employer’s failure was caused by any error or delay by the Contractor, including an error in, or delay in  the submission of, any of the Contractor’s Documents, the Contractor shall not be entitled to such extension of time, Cost or profit.
2.2 Permits, Licences or Approves许可、执照或批准
The Employer shall (where he is in a position to do so) provide reasonable assistance to the Contractor at the request of the Contractor: 雇主应(按其所能)根据承包商的请求,对其提供以下合理的协助:
(a)        by obtaining copies of the Laws of the Country which are relevant to the Contract but are not readily available, and
(b)        for the Contractor’s applications for any permits, licences or approvals required by the Laws of the Country:
(i)        which the Contractor is required to obtain under Sub-Clause 1.13 [Compliance with Laws],
(ii)    for the delivery of Goods, including clearance  through customs, and
(iii) for the export of Contractor’s Equipment when it is removed from the Site.
2.3 Employer’s personnel 雇主人员   
The Employer shall be responsible for ensuring that the Employer’s Personnel and the Employer’s other contractors on the Site:
(a) co-operate with the Contractor’s efforts under Sub-Clause              4.6 [Co-operation],and
(b)  take actions similar to those which the Contractor is required to take under sub-paragraphs (a), (b) and (c) of Sub-Clause 4.8 [Safety Procedures] and under Sub-Clause 4.18 [protection of the Environment].
2.4 Employer’s Financial Arrangements 雇主的资金安排
The Employer shall submit, within 28 days after receiving any request from the Contractor, reasonable evidence that financial arrangements have been made and are being maintained which will enable the Employer to pay the Contract Price (as estimated at that time) in accordance with Clause 14 [Contract Price and Payment]. If the Employer intends to make any material change to his financial arrangements, the Employer shall give notice to the Contractor with detailed particulars.
2.5 Employer’s Claims 2.5雇主的索赔
If the Employer considers himself to be entitled to any payment under any Clause of these Conditions or otherwise in connection with the Contract, and/or to any extension of the Defects Notification Period, he shall give notice and particulars to the Contractor. However, notice is not required for payments due under Sub-Clause 4.19 [Electricity, Water and Gas], under Sub-Clause 4.20 [Employer’s Equipment and Free-Issue Material], or for other services requested by the Contractor.
The notice shall be given as soon as practicable after the Employer became aware of the event or circumstances giving rise to the claim. A notice relating to any extension of the Defects Notification Period shall be given before the expiry of such period.
The particulars shall specify the Clause or other basis of the claim, and shall include substantiation of the amount and/or extension to which the Employer considers himself to be entitled in connection with the Contract. The employer shall then proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (ⅰ) the amount (if any) which the Employer is entitled to be paid by the Contractor, and/or (ⅱ)the extension (if any) of the Defects Notification Period in accordance with Sub-Clause 11.3 [Extension of the Defects Notification Period].
The Employer may deduct this amount from any moneys due, or to become due, to the Contractor. The Employer shall only be entitled to set off against or make any deduction from an amount due to the Contractor, or to otherwise claim against the Contractor, in accordance with this Sub-Clause or with sub-paragraph (a) and/or (b) of Sub-Clause 14.6 [Interim Payments].
3          The Employer’s Administration雇主的管理
3.1The Employer’s Representative雇主代表
The Employer may appoint an Employer’s Representative to act on his behalf under the Contract. In this event, he shall give notice to the Contractor of the name, address, duties and authority of the Employer’s Representative.
The Employer’s Representative. Shall carry out the duties assigned to him, and shall exercise the authority delegated to him, by the Employer. Unless and until the Employer notifies the Contractor otherwise, the Employer’s Representative shall be deemed to have the full authority of the Employer under the Contract, except in respect of Clause 15 [Determination by Employer].
If the Employer wishes to replace any person appointed as Employer’s Representative, the Employer shall give the Contractor not less than 14 days’ notice of the replacement’s name, address, duties and authority, and of the date of appointment.
3.2 The Employer’s personnel其他雇主人员
The Employer or the Employer’s Representative may from time to time assign duties and delegate authority to assistants, and may also revoke such assignment or delegation. These assistants may include a resident engineer, and/or independent inspectors appointed to inspect and/or test items of Plant and/or Materials. The assignment, delegation or revocation shall not take effect until a copy of it has been received by the Contractor.
Assistant shall be suitably qualified persons, who are competent to carry out these duties and exercise this authority, and who are fluent in the language for communications defined in Sub-Clause 1.4[Law and Language].
3.3 Delegated Persons受托人员
All these persons, including the Employer’s Representative and assistants, to whom duties have been assigned or authority has been delegated, shall only be authorised to issue instructions to the Contractor to the extent defined by the delegation. Any approval, check, certificate, consent, examination, inspection, instruction, notice, proposal, request, test, or similar act by a delegated person, in accordance with the delegation, shall have the same effect as though the act had been an act of the Employer. However:
(a)                  unless otherwise stated in the delegated person’s   communication relating to such act, it shall not relieve the Contractor from any responsibility he has under the Contract, including responsibility for errors, omissions, discrepancies and non-compliances;
(b)any failure to disapprove any work, Plant or Materials shall not constitute approval and shall therefore not prejudice the right of the Employer to reject the work, Plant or Materials; and
(c)    if the Contractor questions any determination or instruction of a delegated person, the Contractor may refer the matter to the Employer, who shall promptly confirm, reverse or vary the determination or instruction.
3.4 Instructions指示
The Employer may issue to the Contractor instructions which may be necessary for the Contractor to perform his obligations under the Contract. Each instruction shall be given in writing and shall state the obligations to which it relates and the Sub-Clause (or other term of the Contract) in which the obligations are specified. If any such instruction constitutes a variation, Clause 13 [Variations and Adjustments] shall apply.
The Contractor shall take instructions from the Employer, or from the Employer’s Representative or an assistant to whom the appropriate authority has been delegated under this Clause.
3.5    Determinations确定
Whenever these Conditions provide that the Employer shall proceed in accordance with this Sub-Clause 3.5 to agree or determine any matter, the Employer shall consult with the Contractor in an endeavour to reach agreement. If agreement is not achieved, the Employer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances.
The Employer shall give notice to the Contractor of each agreement or determination, with supporting particulars. Each Party shall give effect to each agreement or determination, unless the Contractor gives notice, to the Employer, of his dissatisfaction with a determination within 14 days of receiving it. Either Party may then refer the dispute to the DAB in accordance with Sub-Clause 20.4 [Obtaining Dispute Adjudication Board’s Decision].
4          The Contractor承包商
4.1 The Contractor’s General Obligations承包商的一般义务
The Contractor shall design, execute and complete the Works in accordance with the Contract, and shall remedy any defects in the Works. When completed, the Works shall be fit for the purposes for which the Works are intended as defined in the Contract.
The Contractor shall provide the Plant and Contractor’s Documents specified in the Contract, and all contractor’s Personnel, Goods, consumables and other things and services, whether of a temporary or permanent nature, required in and for this design, execution, completion and remedying of defects.
The Works shall include any work which is necessary to satisfy the Employer’s Requirements, or is implied by the Contract, and all works which (although not mentioned in the Contract) are necessary for stability or for the completion, or safe and proper operation, of the Works.
The Contractor shall be responsible for the adequacy, stability and safety of all Site operations, of all methods of construction and of all the Works.
The Contractor shall, whenever required by the Employer, submit details of the arrangements and methods which the Contractor proposes to adopt for the execution of the Works. No significant alteration to these arrangements and methods shall be made without this having previously been notified to the Employer.
4.2 Performance security履约担保
The Contractor shall obtain (at his cost) a Performance Security for proper performance, in the amount and currencies stated in the Particular Conditions if an amount is not stated in the Particular Conditions, this Sub-Clause shall not apply.
The Contractor shall deliver the Performance Security to the Employer within 28 days after both Parties have signed the Contract Agreement. The Performance Security shall be issued by an entity and from within a country (or other jurisdiction) approved by the Employer, and shall be in the form annexed to the Particular Conditions or in another form approved by the Employer.
The Contractor shall ensure that the Performance Security is valid and enforceable until the Contractor has executed and completed the Works and remedied any defects. If the terms of the Performance Security specify its expiry date, and the Contractor has not become entitled to receive the Performance Certificate by the date 28 days prior to the expiry date, the Contractor shall extend the validity of the Performance Security until the Works have been completed and any defects have been remedied.
The Employer shall not make a claim under the Performance Security, except for amounts to which the Employer is entitled under the Contract in the event of:
    (a) failure by the Contractor to extend the validity of the Performance Security as described in the preceding paragraph, in which event the Employer may claim the full amount of the Performance Security,
(b) failure by the Contractor to pay the Employer an amount due, as either agreed by the Contractor or determined under Sub-clause 2.5 [Employer’s Claims] or Clause 20 [Claims, Disputes and Arbitration], within 42 days after this agreement or determination,
(c) failure by the Contractor to remedy a default within 42 days after receiving the Employer’s notice requiring the default to be remedied, or
(d) Circumstances which entitle the Employer to termination under Sub-Clause 15.2 [Termination by Employer], irrespective of whether notice of termination has been giv
The Employer shall indemnify and hold the Contractor harmless against and from all damages, losses and expenses (including legal fees and  expenses) resulting from a claim under the Performance Security to the extent to which the Employer was not entitled to make the claim.
The Employer shall return the Performance Security to the Contractor within 21 days after the Contractor has become entitled to receive the Performance Certificate.
4.3 Contractor’s Representative 承包商代表
The Contractor shall appoint the Contractor’s Representative and shall give him all authority necessary to act on the Contractor’s behalf under the Contract.
Unless the Contractor’s Representative is named in the Contract, the Contractor shall, prior to the Commencement Date, submit to the Employer for consent the name and particulars of the person the Contractor proposes to appoint as Contractor’s Representative. If consent is withheld or subsequently revoked, or if the appointed person fails to act as Contractor’s Representative, the Contractor shall similarly submit the name and particulars of another suitable person for such appointment.
The Contractor shall not, without the prior consent of the Employer, revoke the appointment of the Contractor’s Representative or appoint a replacement.
The Contractor’s Representative shall, on behalf of the Contractor, receive instructions under Sub-Clause 3.4 [Instructions].
The Contractor’s Representative may delegate any powers, functions and authority to any competent person, and may at any time revoke the delegation. Any delegation or revocation shall not take effect until the Employer has received prior notice signed by the Contractor’s Representative, naming the person and specifying the powers, functions and authority being delegated or revoked.
The Contractor’s Representative and all these persons shall be fluent in the language for communications defined in Sub-Clause 1.4 [Law and Language].
4.4 Subcontractors分包商
The Contractor shall not subcontract the whole of the Works.
The Contractor shall be responsible for the acts or defaults of any Subcontractor, his agents or employees, as if they were the acts or defaults of the Contractor. Where specified in the Particular Conditions, the Contractor shall give the Employer not less than 28 days’ notice of: 承包商应对任何分包商、其代理人或雇员的行为或违约,如同承包商自己的行为或违约一样地负责。对专用条件中有规定的,承包商应在不少于28天前向雇主通知以下事项:
(a) the intended appointment of the Subcontractor, with    detailed particulars which shall include his relevant experience,
(b)  the intended commencement of the Subcontractor’s work, and
(c)  the intended commencement of the Subcontractor’s work on the Site.
4.5 Nominated Subcontractors指定的分包商
In this Sub-Clause, “nominated Subcontractor” means a Subcontractor whom the Employer, under Clause 13 [Variations and Adjustments], instructs the Contractor to employ as a Subcontractor. The Contractor shall not be under any obligation to employ a nominated Subcontractor against whom the Contractor raises reasonable objection by notice to the Employer as soon as practicable, with supporting particulars.