日期：2018-01-12 / 人气： / 来源：http://www.rzfanyi.com/ 作者：译声翻译公司美国液化天然气装置工程总承包合同（英文版 第六部分）
ARTICLE 17 INDEMNITIES
17.1 General Indemnification.
the owner group from any and all damages, losses, costs and expenses (including all reasonable attorneys’ fees and litigation or arbitration expenses) to the extent that such damages, losses, costs and expenses result from any of the following:
a. failure of contractor or its subcontractors or sub-subcontractors to comply with applicable law; provided that this indemnity shall be limited to fines and penalties imposed on owner group and resulting from the failure of contractor or its subcontractors or sub-subcontractors to comply with applicable law except any portion of the amount of such fines and penalties attributable to prior violations by owner of applicable laws relating to hazardous materials for which owner is responsible under section 4.7;
b. any and all damages, losses, costs and expenses suffered by a third party and resulting from actual or asserted violation or infringement of any domestic or foreign patents, copyrights or trademarks or other intellectual property owned by a third party to the extent that such violation or infringement results from performance of the work by contractor or any of its subcontractors or sub-subcontractors, or any improper use of third party confidential information or other third party proprietary rights that may be attributable to contractor or any subcontractor or sub-subcontractor in connection with the work (but excluding infringement based upon any work or designs relating to the operation of the optimized cascade process);
c. contamination or pollution suffered by a third party to the extent resulting from contractor’s or any subcontractor’s or sub-subcontractor’s use, handling or disposal of hazardous materials brought on the site or on the off-site rights of ways and easements by contractor or any subcontractor or sub-subcontractor;
d. failure by contractor or any subcontractor or sub-subcontractor to pay taxes for which such person is liable;
e. failure of contractor to make payments to any subcontractor in accordance with the respective subcontract, but not extending to any settlement payment made by owner to any subcontractor against which contractor has pending or prospective claims, unless such settlement is made with contractor’s consent, except after assumption of such subcontract by owner in accordance with section 16.1b;
f. personal injury to or death of any person (other than employees of any member of the contractor group, the owner group or any subcontractor or sub-subcontractor), and damage to or destruction of property of third parties to the extent arising out of or resulting from the negligence, in connection with the work, of any member of the contractor group or any subcontractor or sub-subcontractor or anyone directly or indirectly employed by them; or
g. damage to or destruction of the existing facility (excluding the work related thereto) or subproject 1 or subproject 2 (after the earlier of substantial completion of each subproject or termination of this agreement ) to the extent arising out of or resulting from the negligence, in connection with the work, of any member of the contractor group or any subcontractor or sub-subcontractor or anyone directly or indirectly employed by them, provided that contractor’s liability hereunder for damage to or destruction of (i) the existing facility (excluding the work related thereto) shall not exceed *** u.s. dollars (u.s. $***) per occurrence (provided, however, contractor’s and its subcontractors’ and sub-subcontractors’ liability for such damage or destruction to the existing facility shall be limited to the actual amounts of insurance proceeds paid for such occurrence under the policies of insurance required to be provided by contractor under this agreement) or (ii) a subproject (after the earlier of substantial completion of such subproject or termination of this agreement) shall not exceed one million u.s. dollars (u.s.$1,000,000) per occurrence.
17.2 injuries to contractor’s employees and damage to contractor’s property. notwithstanding the provisions of section 17.1f, and except as otherwise provided in section 4.7, contractor shall release, defend, indemnify and hold harmless the owner group from and against all damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) arising out of or resulting from or related to (i) injury to or death of employees, officers or directors of any member of the contractor group or any subcontractor or sub-subcontractor or (ii) damage to or destruction of property of any member of the contractor group or any subcontractor or sub-subcontractor occurring in connection with the work or the project, regardless of the cause of such injury, death, damage or destruction, including the sole or joint negligence, breach of contract or other basis of liability of any member of the owner group.
17.3 injuries to owner’s employees and damage to owner’s property.
a. except as otherwise provided in sections 3.17 and 17.1c, owner shall release, defend, indemnify and hold harmless the contractor group and subcontractors and sub-subcontractors from and against all damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) resulting from or related to (i) injury to or death of any member of the owner group or employees of owner’s other contractors or (ii) damage to or destruction of property of owner group (excluding the work, the liquefaction facility, the existing facility and the project) or of owner’s other contractors occurring in connection with the project, regardless of the cause of such injury, death, damage or destruction, including the sole or joint negligence, breach of contract or other basis of liability of any member of the contractor group.
b. in addition to, and not in lieu of the foregoing, and regardless of the cause of any such damage or destruction, including the sole or joint negligence, breach of contract or other basis of liability of any member of the contractor group, subcontractor or sub-subcontractor, owner shall release, defend, indemnify and hold harmless the contractor group and any subcontractor or sub-subcontractor from and against all damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) resulting from or related to: (a) damage to or destruction of the existing facility (excluding the work related thereto) to the extent that such damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) exceed the lesser of (i) *** u.s. dollars (u.s.$***) per occurrence or (ii) the actual amounts of insurance proceeds paid per such occurrence under the policies of insurance required to be provided by contractor under this agreement; (b) damage to or destruction of a subproject (after the earlier of substantial completion of such subproject or termination of this agreement) to the extent that such damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) exceed one million u.s. dollars (u.s.$1,000,000) per occurrence; or (c) damage to or destruction of property constituting, or to be incorporated into or become a part of, the liquefaction facility for which the owner bears the risk of physical loss or damage pursuant to section 8.2a; provided, however, this section 17.3b shall not relieve contractor of any of its obligations under section 12.3.
17.4 patent and copyright indemnification procedure. in the event that any violation or infringement for which contractor is responsible to indemnify the owner group as set forth in section 17.1b results in any suit, claim, temporary restraining order or preliminary injunction contractor shall, in addition to its obligations under section 17.1b, make every reasonable effort, by giving a satisfactory bond or otherwise, to secure the suspension of the injunction or restraining order. if, in any such suit or claim, the work, the project, or any part, combination or process thereof, is held to constitute an infringement and its use is preliminarily or permanently enjoined, contractor shall promptly make every reasonable effort to secure for owner a license, at no cost to owner, authorizing continued use of the infringing work. if contractor is unable to secure such a license within a reasonable time, contractor shall, at its own expense and without impairing performance requirements, either replace the affected work, in whole or part, with non-infringing components or parts or modify the same so that they become non-infringing.
17.5 lien indemnification. should contractor or any subcontractor or sub-subcontractor or any other person, including any construction equipment lessor, acting through or under any of them file a lien or other encumbrance against all or any portion of the work, the site or the project, contractor shall, at its sole cost and expense, remove or discharge, by payment, bond or otherwise, such lien or encumbrance within twenty-one (21) days of contractor’s receipt of written notice from owner notifying contractor of such lien or encumbrance; provided that owner shall have made payment of all amounts properly due and owing to contractor under this agreement, other than amounts disputed in accordance with section 7.2e. if contractor fails to remove or discharge any such lien or encumbrance within such twenty-one (21) day period in circumstances where owner has made payment of all amounts properly due and owing to contractor under this agreement, other than amounts disputed in accordance with section 7.2e, then owner may, in its sole discretion and in addition to any other rights that it has under this agreement, remove or discharge such lien and encumbrance using whatever means that owner, in its sole discretion, deems appropriate, including the payment of settlement amounts that it determines in its sole discretion as being necessary to remove or discharge such lien or encumbrance. in such circumstance, contractor shall be liable to owner for all damages, costs, losses and expenses (including all reasonable attorneys’ fees, consultant fees and arbitration expenses, and settlement payments) incurred by owner arising out of or relating to such removal or discharge. all such damages, costs, losses and expenses shall be paid by contractor no later than thirty (30) days after receipt of each invoice from owner.
17.6 owner’s failure to comply with applicable law. owner shall defend, indemnify and hold harmless the contractor group from any and all damages, losses, costs and expenses (including all reasonable attorneys’ fees and litigation or arbitration expenses) arising out of or resulting from the failure of any member of owner group to comply with applicable law; provided that this indemnity shall be limited to fines and penalties imposed on contractor group and resulting from owner’s failure to comply with applicable law.
17.7 landowner claims. subject to contractor’s indemnification obligations set forth in sections 17.1a and 17.1c, owner shall defend, indemnify and hold harmless the contractor group from and against any and all damages, losses, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses) arising out of or resulting from claims occurring in connection with the work and the project and brought by any landowner on whose land, right or way or easement contractor or any of its subcontractors or sub-subcontractors are performing the work, including any claim from such landowner related to damage to or destruction of property. such indemnity shall apply regardless of the cause of such damages, losses, costs and expenses, including negligence, breach of contract or other basis of liability of any member of the contractor group or any subcontractor or sub-subcontractor.
17.8 legal defense. not later than fifteen (15) days after receipt of written notice from the indemnified party to the indemnifying party of any claims, demands, actions or causes of action asserted against such indemnified party for which the indemnifying party has indemnification, defense and hold harmless obligations under this agreement, whether such claim, demand, action or cause of action is asserted in a legal, judicial, arbitral or administrative proceeding or action or by notice without institution of such legal, judicial, arbitral or administrative proceeding or action, the indemnifying party shall affirm in writing by notice to such indemnified party that the indemnifying party will indemnify, defend and hold harmless such indemnified party and shall, at the indemnifying party’s own cost and expense, assume on behalf of the indemnified party and conduct with due diligence and in good faith the defense thereof with counsel selected by the indemnifying party and reasonably satisfactory to such indemnified party; provided, however, that such indemnified party shall have the right to be represented therein by advisory counsel of its own selection, and at its own expense; and provided further that if the defendants in any such action or proceeding include the indemnifying party and an indemnified party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the indemnifying party, such indemnified party shall have the right to select up to one separate counsel to participate in the defense of such action or proceeding on its own behalf at the reasonable expense of the indemnifying party. in the event of the failure of the indemnifying party to perform fully in accordance with the defense obligations under this section 17.8, such indemnified party may, at its option, and without relieving the indemnifying party of its obligations hereunder, so perform, but all damages, costs and expenses (including all reasonable attorneys’ fees, and litigation or arbitration expenses, settlement payments and judgments) so incurred by such indemnified party in that event shall be reimbursed by the indemnifying party to such indemnified party, together with interest on same from the date any such cost and expense was paid by such indemnified party until reimbursed by the indemnifying party at the interest rate set forth in section 7.6 of this agreement.
a. except as otherwise set forth in sections 17.2 and 17.3, the indemnity, defense and hold harmless obligations for personal injury or death or property damage under this agreement shall apply regardless of whether the indemnified party was concurrently negligent (whether actively or passively), it being agreed by the parties that in this event, the parties’ respective liability or responsibility for such damages, losses, costs and expenses under this article 17 shall be determined in accordance with principles of comparative negligence.
b. owner and contractor agree that the louisiana oilfield anti-indemnity act, la. rev. stat. §9:2780, et. seq., is inapplicable to this agreement and the performance of the work. application of these code sections to this agreement would be contrary to the intent of the parties, and each party hereby irrevocably waives any contention that these code sections are applicable to this agreement or the work. in addition, it is the intent of the parties in the event that the aforementioned act were to apply that each party shall provide insurance to cover the losses contemplated by such code sections and assumed by each such party under the indemnification provisions of this agreement, and contractor agrees that the contract price (as may be adjusted by change order in accordance with attachment ee) compensates contractor for the cost of premiums for the insurance provided by it under this agreement. the parties agree that each party’s agreement to support their indemnification obligations by insurance shall in no respect impair their indemnification obligations.
c. in the event that any indemnity provisions in this agreement are contrary to the law governing this agreement, then the indemnity obligations applicable hereunder shall be applied to the maximum extent allowed by applicable law.
18.1 Negotiation. In the event that any claim, dispute or controversy arising out of or relating to this Agreement (including the breach, termination or invalidity thereof, and whether arising out of tort or contract) (“Dispute”) cannot be resolved informally within thirty (30) Days after the Dispute arises, either Party may give written notice of the Dispute (“Dispute Notice”) to the other Party requesting that a representative of Owner’s senior management and Contractor’s senior management meet in an attempt to resolve the Dispute. Each such management representative shall have full authority to resolve the Dispute and shall meet at a mutually agreeable time and place within thirty (30) Days after receipt by the non-notifying Party of such Dispute Notice, and thereafter as often as they deem reasonably necessary to exchange relevant information and to attempt to resolve the Dispute. In no event shall this Section 18.1 be construed to limit either Party’s right to take any action under this Agreement, including Owner’s rights under Section 16.1. The Parties agree that if any Dispute is not resolved within ninety (90) Days after receipt of the Dispute Notice given in this Section 18.1, then either Party may by notice to the other Party refer the Dispute to be decided by final and binding arbitration in accordance with Section 18.2.
A. Notwithstanding the foregoing, in the event of a Dispute regarding (i) whether a specific item of Work meets the definition of Punchlist under Section 1.1 in connection with Section 11.5 or (ii) if and when RFSU of a Subproject, Substantial Completion of a Subproject or Final Completion has occurred, as applicable, in accordance with Section 11.3A, 11.3B or 11.6, representatives of Owner’s senior management and Contractor’s senior management shall meet immediately upon request of either Party to attempt to resolve such Dispute. Each such management representative shall have full authority to resolve such Dispute and shall meet in person at a mutually agreeable time and place. The Parties agree that if any such Dispute is not resolved within five (5) Business Days after either Party’s request for such meeting between management representatives, then either Party may by notice to the other Party refer the Dispute to be decided by final and binding arbitration in accordance with Section 18.2.
18.2 Arbitration. Any arbitration held under this Agreement shall be held in Houston, Texas, unless otherwise agreed by the Parties, shall be administered by the Dallas, Texas office of the American Arbitration Association (“AAA”) and shall, except as otherwise modified by this Section 18.2, be governed by the AAA’s Construction Industry Arbitration Rules and Mediation Procedures (including Procedures for Large, Complex Construction Disputes) (the “AAA Rules”). The number of arbitrators required for the arbitration hearing shall be determined in accordance with the AAA Rules. The arbitrator(s) shall determine the rights and obligations of the Parties according to the substantive law of the state of Texas, excluding its conflict of law principles, as would a court for the state of Texas; provided, however, the law applicable to the validity of the arbitration clause, the conduct of the arbitration, including resort to a court for provisional remedies, the enforcement of any award and any other question of arbitration law or procedure shall be the Federal Arbitration Act, 9 U.S.C.A. § 2. Issues concerning the arbitrability of a matter in dispute shall be decided by a court with proper jurisdiction. The Parties shall be entitled to engage in reasonable discovery, including the right to production of relevant and material documents by the opposing Party and the right to take depositions reasonably limited in number, time and place; provided that in no event shall any Party be entitled to refuse to produce relevant and non-privileged documents or copies thereof requested by the other Party within the time limit set and to the extent required by order of the arbitrator(s). All disputes regarding discovery shall be promptly resolved by the arbitrator(s). This agreement to arbitrate is binding upon the Parties, Contractor’s surety (if any) and the successors and permitted assigns of any of them. At either Party’s option, any other Person may be joined as an additional party to any arbitration conducted under this Section 18.2, provided that the party to be joined is or may be liable to either Party in connection with all or any part of any dispute between the Parties. Contractor agrees, upon Owner’s election, to the joinder in any arbitration between Owner and Guarantor arising out of or relating to the Project. The arbitration award shall be final and binding, in writing, signed by all arbitrators, and shall state the reasons upon which the award thereof is based. The Parties agree that judgment on the arbitration award may be entered by any court having jurisdiction thereof.
18.3 Continuation of Work During Dispute. Notwithstanding any Dispute, it shall be the responsibility of each Party to continue to perform its obligations under this Agreement pending resolution of Disputes. Owner shall, subject to its right to withhold or offset amounts pursuant to this Agreement, continue to pay Contractor undisputed amounts in accordance with this Agreement and, except as provided in this Agreement, continue to perform all of its obligations under this Agreement; provided, however, in no event shall the occurrence of any negotiation or arbitration prevent or affect Owner from exercising its rights under this Agreement, including Owner’s right to terminate pursuant to Article 16.
18.4 Escrow of Certain Disputed Amounts By Owner. At any time when the total amounts invoiced by Contractor pursuant to Section 7.2C of the Agreement for Milestone payments and Monthly Payments (as such amounts may be adjusted by Change Order in accordance with Sections 6.1B or 6.2C) which are disputed and unpaid by Owner exceed Ten Million U.S. Dollars (U.S.$10,000,000) in the cumulative aggregate, Owner shall escrow any such disputed and unpaid amounts in excess of the aforesaid amount (“Escrowed Amounts”); provided, however, the Parties acknowledge and agree that such Escrowed Amounts shall not include any claims by Contractor for compensation in addition to the original Contract Price (as adjusted by Change Order pursuant to Sections 6.1B or 6.2C). For the purposes of determining the date when Owner must deposit the Escrowed Amounts with the Escrow Agent, amounts are “unpaid” on the date that Owner is required to make payment of an Invoice under Section 7.2E of this Agreement. The Escrowed Amounts will be deposited with the Escrow Agent pursuant to the Escrow Agreement (which provides, among other things, that the Escrowed Amounts shall be held in an interest bearing account and disbursed upon the instructions of both Parties or pursuant to an arbitration award). Prior to issuance of the NTP, (i) the Escrow Agent shall be selected by mutual agreement of the Parties and (ii) the Escrow Agreement shall be in final form and executed by the Escrow Agent and each Party. The Parties shall each pay fifty percent (50%) of the cost of the Escrow Agreement including without limitation the fees and expenses of the Escrow Agent.
ARTICLE 19 CONFIDENTIALITY
19.1 Contractor’s Obligations. Contractor hereby covenants and warrants that Contractor and its employees and agents shall not (without in each instance obtaining Owner’s prior written consent) disclose, make commercial or other use of, or give or sell to any Person, other than to members of the Contractor Group and Subcontractors or Sub-subcontractors as necessary to perform the Work, any information conspicuously marked and identified in writing as confidential and relating to the business, products, services, research or development, clients or customers of Owner or any Owner Affiliate, or relating to similar information of a Third Party who has entrusted such information to Owner or any Owner Affiliate (hereinafter individually or collectively, “Owner’s Confidential Information”). Prior to disclosing any such information to any Subcontractor or Sub-subcontractor as necessary to perform the Work, Contractor shall bind such Subcontractor or Sub-subcontractor to the confidentiality obligations contained in this Section 19.1. Nothing in this Section 19.1 or this Agreement shall in any way prohibit Contractor or any of its Subcontractors or Sub-subcontractors from making commercial or other use of, selling, or disclosing any of the Intellectual Property or Contractor Existing Intellectual Assets.
19.2 Owner’s Obligations. Owner hereby covenants and warrants that Owner and its employees and agents shall not (without in each instance obtaining Contractor’s prior written consent) disclose, make commercial or other use of, or give or sell to any Person any of the following information: (i) any estimating, technical or pricing methodologies, techniques, know-how or information relating to the business, products, services, research or development of Contractor conspicuously marked and identified in writing as confidential by Contractor; or (ii) any Intellectual Property or Contractor’s Existing Intellectual Property Assets which is conspicuously marked and identified in writing as confidential (hereinafter individually or collectively, “Contractor’s Confidential Information”). The Parties agree that (y) notwithstanding the foregoing, Owner shall not be restricted from the use or disclosure of Work Product except as expressly set forth in Article 10; and (z) Owner shall be entitled to disclose that portion of the Intellectual Property and Contractor’s Existing Intellectual Property Assets for which Owner has a license in, and which is to be used by Owner for the purpose for which such license is granted pursuant to Section 10.1, provided that, with respect to such Intellectual Property and Contractor’s Existing Intellectual Property Assets, Owner binds such disclosee to the confidentiality obligations contained in this Section 19.2.
19.3 Definitions. The term “Confidential Information” shall mean one or both of Contractor’s Confidential Information and Owner’s Confidential Information, as the context requires. The Party having the confidentiality obligations with respect to such Confidential Information shall be referred to as the “Receiving Party,” and the Party to whom such confidentiality obligations are owed shall be referred to as the “Disclosing Party.”
19.4 Exceptions. Notwithstanding Sections 19.1 and 19.2, Confidential Information shall not include: (i) information which at the time of disclosure or acquisition is in the public domain, or which after disclosure or acquisition becomes part of the public domain without violation of this Article 19; (ii) information which at the time of disclosure or acquisition was already in the possession of the Receiving Party or its employees or agents and was not previously acquired from the Disclosing Party or any of its employees or agents directly or indirectly; (iii) information which the Receiving Party can show was acquired by such entity after the time of disclosure or acquisition hereunder from a Third Party without any confidentiality commitment, if, to the best of Receiving Party’s or its employees’ or agent’s knowledge, such Third Party did not acquire it, directly or indirectly, from the Disclosing Party or any of its employees or agents; (iv) information independently developed by the Receiving Party without benefit of the Confidential Information; and (v) information which a Party believes in good faith is required to be disclosed in connection with the Project by Applicable Law, any Governmental Instrumentality (including the FERC), applicable securities laws or the rules of any stock exchange; provided, however, that prior to such disclosure, the Receiving Party gives reasonable notice to the Disclosing Party of the information required to be disclosed.
19.5 Equitable Relief. The Parties acknowledge that in the event of a breach of any of the terms contained in this Article 19, the Disclosing Party would suffer irreparable harm for which remedies at law, including damages, would be inadequate, and that the Disclosing Party shall be entitled to seek equitable relief therefor by injunction, without the requirement of posting a bond.
19.6 Term. The confidentiality obligations of this Article 19 shall expire upon the earlier of a period of ten (10) years following (i) the termination of this Agreement or (ii) Final Completion.
ARTICLE 20 LIMITATION OF LIABILITY
20.1 Contractor Aggregate Liability. Notwithstanding any other provisions of this Agreement to the contrary, Contractor Group shall not be liable to Owner Group under this Agreement or under any cause of action related to the subject matter of this Agreement, whether in contract, warranty, tort (including negligence), strict liability, products liability, professional liability, indemnity, contribution or any other cause of action, in excess of a cumulative aggregate amount equal to the Aggregate Cap, and Owner shall release Contractor Group from any liability in excess thereof; provided that, notwithstanding the foregoing, the limitation of liability set forth in this Section 20.1 shall not (i) apply to (A) Contractor’s indemnification obligations under Sections 17.1B, 17.1E, 17.1F, 17.1G, 17.2 and 17.5 or (B) Contractor’s obligations under 8.1A.1; or (ii) include the proceeds paid under any insurance policy that Contractor or its Subcontractors is required to obtain pursuant to this Agreement or Subcontract, as the case may be (collectively, provisions (i) and (ii) being the “Carve-Outs”). In no event shall the limitation of liability set forth in this Section 20.1 be in any way deemed to limit Contractor’s obligation to perform all Work required to achieve Ready for Performance Testing for any Subproject.
A. The “Aggregate Cap” means *** U.S. Dollars (U.S.$***).
B. However, immediately after the later of Substantial Completion of Subproject 1 and payment of any Delay Liquidated Damages due and owing under this Agreement for Subproject 1 (“Reduction Date”), the Aggregate Cap shall reduce to an amount calculated as follows:
1. “Reduction” means the amount equal to the greater of: (i) *** U.S. Dollars (U.S.$***); or (ii) Contractor Group’s aggregate liability to Owner Group under this Agreement, for acts or omissions occurring prior to Substantial Completion of Subproject 1 (the clause (ii) liabilities hereinafter called “Pre-Subproject 1 Substantial Completion Liabilities”).
a. In calculating the Reduction, the Pre-Subproject 1 Substantial Completion Liabilities shall exclude amounts that fall within the Carve-Outs. In addition, for the purposes of calculating the Reduction immediately after the Reduction Date, only those Pre-Subproject 1 Substantial Completion Liabilities actually paid by Contractor Group to Owner Group on or prior to the Reduction Date shall be used, but if other Pre-Subproject 1 Substantial Completion Liabilities are subsequently paid by Contractor Group to Owner Group, the Reduction shall be recalculated in accordance with Section 20.1C. For clarity, Delay Liquidated Damage amounts owed for Subproject 1 shall be applied against the Pre-Subproject 1 Substantial Completion Liabilities, as well as Performance Liquidated Damages where the option in Section 11.4A(i) is used.
2. “Outstanding Claims Amount” means the aggregate amount of Outstanding Claims; provided that, if such aggregate amount is less than Twenty-Five Million U.S. Dollars (U.S.$25,000,000), the Outstanding Claims Amount shall be Zero U.S. Dollars for purposes of calculating the Aggregate Cap. “Outstanding Claims” means good faith claims asserted by Owner Group against any member of Contractor Group, arising out of acts or omissions occurring before Substantial Completion of Subproject 1, which remain outstanding as of the date of Substantial Completion of Subproject 1. Outstanding Claims shall not include any claims that fall within the Carve-Outs.
3. “Performance LD Exposure” means either:
a. Zero U.S. Dollars, if Owner or Contractor elect the option in Section 11.4A(i) for Subproject 1; or
b. if Owner or Contractor elect the option in Section 11.4A(ii) for Subproject 1, the amount of Performance Liquidated Damages that would be due to Owner if Contractor were to pay the Performance Liquidated Damages for Subproject 1 based on the results of the last Performance Test conducted by Contractor prior to Substantial Completion of Subproject 1.
4. Notwithstanding the foregoing Aggregate Cap calculation (or any recalculation of the Aggregate Cap pursuant to 20.1C), the Aggregate Cap shall not exceed *** U.S. Dollars (U.S.$***) under any circumstances.
C. Upon resolution of any (i) Outstanding Claims, (ii) Pre-Subproject 1 Substantial Completion Liabilities that were not included in the original Reduction calculation performed in Section 20.1B.1, or (iii) amounts for Performance LD Exposure, the Aggregate Cap shall be recalculated using the formula in Section 20.1B and the adjusted variables shall be determined as follows:
1. The amount used for the Pre-Subproject 1 Substantial Completion Liabilities shall be the total amount paid by Contractor Group to Owner Group on account of Pre-Subproject 1 Substantial Completion Liabilities, whether paid before or after Substantial Completion of Subproject 1;
2. The Reduction shall be recalculated in accordance with Section 20.1B.1 based on the Pre-Subproject 1 Substantial Completion Liabilities adjustment under Section 20.1C.1;
3. The amount used for the Outstanding Claims Amount shall be the amounts of those Outstanding Claims not yet resolved;
4. The amount used for the Performance LD Exposure shall be the amount of Performance Liquidated Damages owed (and not paid) by Contractor to Owner, as determined by the last Performance Test performed in conjunction with Section 11.4A(ii); and
5. The Aggregate Cap shall be recalculated in accordance with Section 20.1B based on the Reduction recalculated in Section 20.1C.2, the Outstanding Claims Amount adjustment under Section 20.1C.3 and the Performance LD Exposure recalculated under Section 20.1C.4.
20.2 Limitation on Contractor’s Liability for Liquidated Damages.
A. Delay Liquidated Damages. Subject to Section 20.2C, Contractor’s maximum liability to Owner for (i) Delay Liquidated Damages for Subproject 1 is *** U.S. Dollars (U.S.$***), in the aggregate, and (ii) Delay Liquidated Damages for Subproject 2 is *** U.S. Dollars (U.S.$***), in the aggregate.
B. Performance Liquidated Damages. Subject to Section 20.2C, Contractor’s maximum liability to Owner for (i) Performance Liquidated Damages for Subproject 1 is *** US Dollars (U.S.$***), in the aggregate, and (ii) Performance Liquidated Damages for Subproject 2 is *** US Dollars ($***), in the aggregate.
C. Exceptions to Limitations of Liability Under Section 20.2. Sections 20.2A and 20.2B shall not be construed to limit Contractor’s obligation to complete the Work for the compensation provided under this Agreement.
20.3 Liquidated Damages In General.
A. Liquidated Damages Not Penalty. It is expressly agreed that Liquidated Damages payable under this Agreement do not constitute a penalty and that the Parties, having negotiated in good faith for such specific Liquidated Damages and having agreed that the amount of such Liquidated Damages is reasonable in light of the anticipated harm caused by the breach related thereto and the difficulties of proof of loss and inconvenience or nonfeasibility of obtaining any adequate remedy, are estopped from contesting the validity or enforceability of such Liquidated Damages.
B. Liquidated Damages as Exclusive Remedy.
1. Delay Liquidated Damages shall be Owner’s sole and exclusive remedy, and the sole and exclusive liability of Contractor, for delay as set forth in Section 13.1; provided that, this Section 20.3B.1 shall not be interpreted to preclude Owner from (i) terminating Contractor’s performance of the Work pursuant to Section 11.4B(b) or (ii) terminating Contractor pursuant to Section 5.5A.
2. Performance Liquidated Damages shall be Owner’s sole and exclusive remedy, and the sole and exclusive liability of Contractor, for failure to achieve the Performance Guarantee. This Section 20.3B.2 is not applicable for Contractor’s failure to achieve Minimum Acceptance Criteria.
C. Payment of Liquidated Damages. With respect to any Liquidated Damages that accrue, Owner shall invoice Contractor for such Liquidated Damages. Contractor shall pay such Liquidated Damages within ten (10) Days after Contractor’s receipt of such invoice. To the extent Contractor does not pay such Liquidated Damages within such ten (10) Day period, Owner may, at its option, do one or more of the following: (i) withhold from Contractor amounts that are otherwise due and payable to Contractor in the amount of such Liquidated Damages and/or (ii) collect on the Letter of Credit in the amount of such Liquidated Damages. For the avoidance of doubt, prior to exercising such right to withhold or collect on the Letter of Credit, Owner shall not be required to provide the notice as set forth in Section 7.8. As used in this Agreement, Liquidated Damages are “paid” if and to the extent Owner exercises option (i) or (ii) above for the collection of Liquidated Damages.
20.4 Consequential Damages. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, NEITHER OWNER GROUP NOR CONTRACTOR GROUP SHALL BE LIABLE UNDER THIS AGREEMENT OR UNDER ANY CAUSE OF ACTION RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS LIABILITY,
PROFESSIONAL LIABILITY, INDEMNITY, CONTRIBUTION, OR ANY OTHER CAUSE OF ACTION FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF USE, LOSS OF OPPORTUNITY, LOSS OF REVENUES, LOSS OF FINANCING, LOSS OR INCREASE OF BONDING CAPACITY, COSTS OF OBTAINING OR MAINTAINING FINANCING, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, OR DAMAGES OR LOSSES FOR PRINCIPAL OFFICE EXPENSES INCLUDING COMPENSATION OF PERSONNEL STATIONED THERE (“CONSEQUENTIAL DAMAGES”) AND OWNER SHALL RELEASE CONTRACTOR GROUP AND CONTRACTOR GROUP SHALL RELEASE OWNER GROUP FROM ANY LIABILITY FOR SUCH CONSEQUENTIAL DAMAGES; PROVIDED THAT THE EXCLUSION OF LIABILITY SET FORTH IN THIS SECTION 20.4 (I) IS NOT INTENDED TO PREVENT CONTRACTOR FROM RECEIVING PROFIT TO THE EXTENT THAT CONTRACTOR IS ENTITLED TO RECEIVE SUCH PROFIT UNDER THE PROVISIONS OF THIS AGREEMENT AND (II) SHALL NOT APPLY (A) TO AMOUNTS ENCOMPASSED WITHIN LIQUIDATED DAMAGES, (B) TO CONTRACTOR’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO LOSSES SUFFERED BY ANY THIRD PARTY OR, WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17.2, MEMBERS OF THE CONTRACTOR GROUP OR ANY SUBCONTRACTORS OR SUB- SUBCONTRACTORS, OR (C) TO OWNER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO LOSSES SUFFERED BY ANY THIRD PARTY OR, WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17.3, MEMBERS OF THE OWNER GROUP OR ANY OTHER CONTRACTORS OF OWNER.
20.5 Exclusive Remedies. Where a remedy specified in this Agreement is expressly stated to be a Party’s sole remedy, it is intended that such remedy shall be the sole and exclusive remedy of such Party for the matter in question, notwithstanding any remedy otherwise available at law or in equity.
20.6 Applicability. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY, EXCLUSIONS, LIMITATIONS AND APPORTIONMENTS OF LIABILITY AND INDEMNITIES EXPRESSED IN THIS AGREEMENT SHALL APPLY EVEN IN THE EVENT OF FAULT, NEGLIGENCE (IN WHOLE OR IN PART), STRICT LIABILITY, BREACH OF CONTRACT OR OTHERWISE OF THE PARTY RELEASED OR WHOSE LIABILITY IS WAIVED, DISCLAIMED, LIMITED, FIXED OR INDEMNIFIED AND SHALL EXTEND IN FAVOR OF MEMBERS OF THE OWNER GROUP AND THE CONTRACTOR GROUP.
20.7 Term Limit. WITH THE EXCEPTION OF ARTICLE 10, ARTICLE 19 AND SECTIONS 8.1, 17.1A, 17.1B, 17.1C, 17.1E, 17.4 AND 17.5 (AND TO THE EXTENT THE FOLLOWING RELATE TO THE FOREGOING ARTICLES AND SECTIONS: SECTIONS 1.1, 17.8, 17.9 AND ARTICLE 18, ARTICLE 20 AND ARTICLE 21), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY CLAIMS BROUGHT THREE (3) YEARS OR MORE AFTER SUBSTANTIAL COMPLETION OF SUBPROJECT 2.
ARTICLE 21 MISCELLANEOUS PROVISIONS
21.1 Entire Agreement. This Agreement, including the Attachments and Schedules attached to and incorporated into this Agreement, contains the entire understanding of the Parties with respect to the subject matter hereof and incorporates any and all prior agreements and commitments with respect thereto. There are no other oral understandings, terms or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement. General or special conditions included in any of Contractor’s price lists, Invoices, tickets, receipts or other such documents presented to Owner shall have no applicability to Owner with respect to this Agreement. Without limitation, this Agreement supersedes in its entirety the Technical Services Agreement and any other agreements between the Parties related to the Project.
21.2 Amendments. No change, amendment or modification of the terms of this Agreement shall be valid or binding upon the Parties hereto unless such change, amendment or modification is in writing and duly executed by both Parties hereto.
21.3 Joint Effort. Preparation of this Agreement has been a joint effort of the Parties and the resulting document shall not be construed more severely against one of the Parties than against the other.
21.4 Captions. The captions contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope of intent of this Agreement or the intent of any provision contained herein.
21.5 Notice. Any notice, demand, offer, or other written instrument required or permitted to be given pursuant to this Agreement shall be in writing signed by the Party giving such notice and shall be hand delivered or sent by overnight courier, messenger, facsimile or certified mail, return receipt requested, to the other Party at the address set forth below.
Each Party shall have the right to change the place to which notice shall be sent or delivered by sending a similar notice to the other Party in like manner. Notices, demands, offers or other written instruments shall be deemed to have been duly given on the date actually received by the intended recipient.
21.6 Severability. The invalidity of one or more phrases, sentences, clauses, Sections or Articles contained in this Agreement shall not affect the validity of the remaining portions of this Agreement so long as the material purposes of this Agreement can be determined and effectuated.
21.7 Assignment. This Agreement may be assigned to other Persons only upon the prior written consent of the non-assigning Party hereto, except that Owner may assign this Agreement to any of its Affiliates by providing notice to Contractor. Furthermore, Owner may, for the purpose of providing collateral, assign, pledge and/or grant a security interest in this Agreement to any Lender without Contractor’s consent. When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the assignee; provided that any assignment by Contractor or Owner pursuant to this Section 21.7 shall not relieve Contractor or Owner (as applicable) of any of its obligations or liabilities under this Agreement, nor shall any such assignment discharge Guarantor of its obligations under the Parent Guarantee. Any assignment not in accordance with this Section 21.7 shall be void and without force or effect, and any attempt to assign this Agreement in violation of this provision shall grant the non-assigning Party the right, but not the obligation, to terminate this Agreement at its option for Default.
21.8 No Waiver. Any failure of either Party to enforce any of the provisions of this Agreement or to require compliance with any of its terms at any time during the term of this Agreement shall in no way affect the validity of this Agreement, or any part hereof, and shall not be deemed a waiver of the right of such Party thereafter to enforce any and each such provisions.
21.9 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Texas (without giving effect to the principles thereof relating to conflicts of law). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and shall be disclaimed in and excluded from any Subcontracts entered into by Contractor in connection with the Work or the Project.
21.10 Successors and Assigns. This Agreement shall be binding upon the Parties hereto, their successors and permitted assigns.
21.11 Attachments and Schedules. All Attachments and Schedules shall be incorporated into this Agreement by such reference and shall be deemed to be an integral part of this Agreement.
21.12 Obligations. Nothing contained in this Agreement shall be construed as constituting a joint venture or partnership between Contractor and Owner.
21.13 Further Assurances. Contractor and Owner agree to provide such information, execute and deliver any such instruments and documents and to take such other actions as may be reasonably requested by the other Party that are not inconsistent with the provisions of this Agreement and that do not involve the assumption of obligations or liabilities greater than those provided for in this Agreement, in order to give full effect to this Agreement and to carry out the intent of this Agreement.
21.14 Priority. The documents that form this Agreement are listed below in order of priority, with the document having the highest priority listed first and the one with the lowest priority listed last. In the event of any conflict or inconsistency between a provision in one document and a provision in another document, the document with the higher priority shall control. This Agreement is composed of the following documents, which are listed in priority:
A. Change Orders which expressly modify the terms of this Agreement or written amendments to this Agreement;
B. the Articles of this Agreement; and
C. Attachments and Schedules to this Agreement.
21.15 Restrictions on Public Announcements. Neither Contractor nor its Subcontractors or Sub-subcontractors shall take any photographs of any part of the Liquefaction Facility or the Existing Facility, issue a press release, advertisement, publicity material, financial document or similar matter or participate in a media interview that mentions or refers to the Work or any part of the Liquefaction Facility or the Existing Facility without the prior written consent of Owner; provided that Contractor shall not be required to obtain Owner’s prior written consent of Contractor’s issuance of a press release to correct any errors made by Owner concerning Contractor in a prior press release issued by Owner if Contractor first gives Owner five (5) Days’ prior written notice of Contractor’s intent to issue such corrective press release and an opportunity of Owner to correct such error within such five (5) Day period. Owner agrees to cooperate with Contractor and provide to Contractor for review and comment a copy of any press release that mentions or refers to Contractor prior to the issuance of such press release; provided that Owner shall not be required to obtain Contractor’s prior consent prior to the issuance of such press release. Contractor acknowledges and agrees that Owner shall be required, from time to time, to make disclosures and press releases and applicable filings with the SEC in accordance with applicable securities laws, that Owner believes in good faith are required by Applicable Law or the rules of any stock exchange. If any such disclosure, press release or filing includes any reference to Contractor, then Owner shall provide as much notice as is practicable to Contractor to provide it with an opportunity to comment; provided, however, the final determination shall remain with Owner. Contractor acknowledges that Owner shall be required from time to time to make filings in compliance with applicable securities laws, including a copy of this Agreement.
21.16 Potential Lenders, Potential Equity Investors and Equity Participants.
A. Potential Lenders. Owner shall provide to Contractor (i) the identity of Potential Lenders that have signed confidentiality agreements with Owner and (ii) a copy of the preliminary information memorandum or preliminary offering circular distributed to such Potential Lenders and any final loan agreements executed with Owner and such Potential Lenders. As used herein, “Potential Lender” shall mean any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended) and which extends credit, buys loans and is in the business of lending as one of its businesses.
B. Potential Equity Investors. Prior to disclosure of any Work Product (other than ConocoPhillips Work Product which disclosure is governed by the ConocoPhillips License Agreement) by Owner to any potential equity investor in Owner in connection with the Project, Owner shall (i) obtain Contractor’s written consent (such consent not to be unreasonably withheld) to the description of the Work Product to be disclosed, and (ii) obtain a waiver from such potential equity investor agreeing that it is not relying upon such Work Product in making any investment decision in connection with the Project and waiving and releasing any claim it may have against Contractor or Contractor’s Affiliates on account of any such reliance or purported reliance. Owner acknowledges and agrees that each potential equity investor shall be an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended.
C. Equity Participants. Owner’s successors, assigns and any future recipient of any equity ownership in Owner shall be bound by the releases, limitations on liability and other protections of Contractor set forth in this Agreement, and Owner shall obtain the express written agreement of such equity participants to be bound by such releases, limitations of liability and other protections of Contractor.
21.17 Foreign Corrupt Practices Act. With respect to the performance of the Work, Contractor shall, and shall cause each member of the Contractor Group to, comply with all provisions of the Foreign Corrupt Practices Act of the United States (15 U.S.C. § 78dd-1 and 2) and the Bribery Act 2010 of the United Kingdom, and not to take any action that could result in Owner or any of its Affiliates becoming subject to any action, penalty or loss of benefits under such Acts. Owner shall, and shall cause each member of the Owner Group to, comply with all provisions of the Foreign Corrupt Practices Act of the United States (15 U.S.C. § 78dd-1 and 2) and the Bribery Act 2010 of the United Kingdom, and not to take any action that could result in Contractor or any of its Affiliates becoming subject to any action, penalty or loss of benefits under such Acts.
21.18 Parent Guarantee. Guarantor will guarantee the full and faithful performance of all obligations and liabilities of Contractor under this Agreement in the form attached as Attachment FF hereto (“Parent Guarantee”). Contractor shall not be entitled to any compensation under the Agreement unless and until Contractor provides the foregoing Parent Guarantee to Owner in accordance with this Section 21.18.
21.19 Language. This Agreement and all notices, communications and submittals between the Parties pursuant to this Agreement shall be in the English language.
21.20 Counterparts. This Agreement may be signed in any number of counterparts and each counterpart shall represent a fully executed original as if signed by each of the Parties. Facsimile signatures shall be deemed as effective as original signatures.
21.21 Federal Energy Regulatory Commission Approval. Issuance of the NTP pursuant to Section 5.2B is contingent upon FERC issuing the FERC Authorization. In the event FERC denies Owner’s application for the FERC Authorization or the content of such FERC Authorization is not acceptable to Owner, then Owner shall not be obligated to appeal therefrom. In the event FERC denies Owner’s application, then Owner may terminate this Agreement for convenience in accordance with Section 16.2.
21.22 Owner’s Lender. Contractor shall, on or before issuance of the NTP, enter into a mutually acceptable form of acknowledgement and consent with the Collateral Agent. Such acknowledgement and consent shall be substantially in the form of Attachment AA. Contractor shall cooperate in considering appropriate and reasonable amendments to that form of direct agreement as such amendments may be proposed by Lender or its counsel. Contractor acknowledges and agrees that Owner’s issuance of the NTP is contingent upon obtaining project financing in connection with this Project or other forms of financing.
21.23 Independent Engineer. Contractor shall cooperate with Independent Engineer in the conduct of his or her duties in relation to the Project and the Work, including the duties listed in Attachment CC. No review, approval or disapproval by Independent Engineer shall serve to reduce or limit the liability of Contractor to Owner under this Agreement.
21.24 Survival. Subject to Section 20.7, Article 6, Article 7, Article 9, Article 10, Article 12, Article 14, Article 15, Article 16, Article 17, Article 18 and Article 19, Article 20, Sections 3.8, 3.13, 3.17, 8.1, 8.2, 21.9, 21.16 and this Section 21.24 shall survive termination of this Agreement, in addition to any other provisions which by their nature should, or by their express terms do, survive or extend beyond the termination of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Contract Date.
SABINE PASS LIQUEFACTION, LLC
By: /s/ R. Keith Teague
Name: R. Keith Teague
BECHTEL OIL, GAS AND CHEMICALS, INC.
By: /s/ James T. Jackson
Name: James T. Jackson
Title: Executive Vice President