Công văn 99/BXD-KTTC

THE MINISTRY OF CONSTRUCTION ------	THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ------------
No. 99/BXD-KTTC Re. Releasing the sample Project Management Consultancy (PMC) contract	Hanoi, January 17, 2008

 

Respectfully addressed to:

- Ministries, Ministry-level bodies and Governmental agencies. - People’s Committees of centrally-controlled cities and provinces. - State Economic Corporations and Incorporations

Pursuant to the Government's Decree No. 36/2003/ND-CP dated April 4, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Construction.

Pursuant to the Government’s Decree No. 99/2007/ND-CP dated June 13, 2007 on management of investment and construction costs.

The Ministry of Construction hereby introduces the sample project management consultancy (PMC) contract hereto attached which enables entities, organizations and individuals concerned to write, negotiate and manage execution of a construction contract under the provisions of the Government’s Decree No. 99/2007/ND-CP dated June 13, 2007.

 

PP. THE MINISTER THE DEPUTY MINISTER Dinh Tien Dung

 

SAMPLE CONTRACT

PROJECT MANAGEMENT CONSULTANCY (PMC)
(Released as an appendix to the Document No. 99/BXD-KTTC dated January 17, 2008 of the Ministry of Construction on release of the sample project management consultancy contract)

 

THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ------------ (Place name), date (dd/mm/yyyy) ….   CONTRACT No. …../(Year)/….(Contract ) For management consultancy   OF THE CONSTRUCTION WORK OR PACKAGE (NAME OF THE CONSTRUCTION WORK AND/OR PACKAGE) NO.... IN THE PROJECT (PROJECT’S NAME) …….   BETWEEN   (TRANSACTION NAME OF THE PROJECT OWNER)   AND   (TRANSACTION NAME OF THE PROJECT CONSULTANT)

 

 

CONTENTS

PART 1 – BASES FOR SIGNING THIS CONTRACT ………………………………………..

PART 2 – CONTRACTUAL TERMS AND CONDITIONS……………………………….

ARTICLE 1. CONTRACT DOCUMENTATION AND ORDER OF PRIORITY……………… 

ARTICLE 2. DEFINITIONS AND INTERPRETATIONS……………………………………….

ARTICLE 3. DESCRIPTION OF SCOPE OF WORK………………………………………….

ARTICLE 4. CONTRACT PRICE, ADVANCE AND PAYMENT…………………………..

ARTICLE 5. CONTRACT BOND (IF ANY)……………………………………….   

ARTICLE 6. CHANGE AND MODIFICATION OF CONTRACT PRICE ………………

ARTICLE 7. CONTRACT EXECUTION SCHEDULE……………………………………….   

ARTICLE 8. PMC’S JOINT LIABILITIES AND OBLIGATIONS……………………………

ARTICLE 9. PROJECT OWNER’S JOINT RIGHTS AND OBLIGATIONS………………..

ARTICLE 10. PMC’S STAFF ………………………………………………………….   

ARTICLE 11. CONTRACT SUSPENSION AND TERMINATION CLAUSE ……..……………………………

ARTICLE 12. INDEMNIFICATION AND LIMITATION OF LIABILITY……………………..

ARTICLE 13. COPYRIGHT AND RIGHT OF ACCESS TO MATERIALS……………………

ARTICLE 14. CONFIDENTIALITY CLAUSE …………………………………………………… 

ARTICLE 15. INSURANCE CLAUSE………………………………………………………….   

ARTICLE 16. FORCE MAJEURE CLAUSE……………………………………………………   

ARTICLE 17. REWARD AND PENALTY CLAUSE…………..…………………………

ARTICLE 18. COMPLAINT, DISPUTE AND ARBITRATION CLAUSE……………………..

ARTICLE 19. CONTRACT SETTLEMENT……………………………………………………

ARTICLE 20. GENERAL CLAUSE ………………………………………………………….   

 

PART 1 – BASES FOR SIGNING THIS CONTRACT

Pursuant to the Law on Construction No. 16/2003/QH11 dated November 26, 2003 enacted by the 4^th plenary session of the XI-tenure National Assembly;

Pursuant to the Law on Procurement No. 61/2005/QH11 dated November 29, 2005, passed by the XI-tenure National Assembly;

Pursuant to the Government's Decree No. 111/2006/ND-CP dated September 29, 2006 guiding implementation of the Law on Procurement and Selection of Contractor.

Pursuant to the Government’s Decree No. 99/2007/ND-CP dated June 13, 2007 on management of investment and construction costs;

Pursuant to the Circular No. 06/2007/TT-BXD dated July 25, 2007 of the Ministry of Construction on providing instructions for construction contracts;

Pursuant to the results of selection of contractors presented in the document No. (Decision No...)

PART 2 – CONTRACTUAL TERMS AND CONDITIONS

PREAMBLE

Today, on (dd/mm/yyyy)…….. at (Place name), we including the following parties:

1. Project owner (hereinafter collectively referred to as PO),

Transaction name:…………………

Representative (or authorized person):…………….                            Title:………….

Address:……………………..

Account info:………………………

Tax Identification Number: …………………….

Contact phone:..................................                                                      Fax: ……………

E-mail address:………………………….

As a Party

2. Project Management Consultant (hereinafter collectively referred to as PMC):

Transaction name:

Representative (or authorized person):…………….                              Title:………….

Contact address:

Account information: ……………………………………………………………….

Tax Identification Number: ……………………………………………………………

Contact phone:..................................                                                      Fax: ……………

E-mail address:………………………….

As the other Party

Project owner and Contractor are called, individually, the Party and collectively, the Parties.

Have agreed as follows:

ARTICLE 1. CONTRACT DOCUMENTATION AND ORDER OF PRIORITY

1.1. Contract documentation refers to an integral part of the contract, including bases for signing the contract, contractual terms and conditions as well as the following documents:

1.1.1. Bid-winning notice or contractor appointment letter;

1.1.2. Special conditions (if any): Appendix No…. [Execution progress]; Appendix No…. [Contract price, advance, payment and settlement]; Appendix No.... [Types of forms or templates];

1.1.3. Contractor’s recommendations and attached documents;

1.1.4. Reference clause (Appendix No… [the Project Owner’s Invitation for bid or Request for proposal]);

1.1.5. Amendment or supplementation carried out through a written document or record on contract negotiation;

1.1.6. Contract bond (if any), advance payment bond and other guarantee (if required); 

1.1.7. Other documents (specifying documents – supplementary appendices required during the contract execution process).   

1.2. Priority of documents

The principle is that documents forming the contract are to be taken as consistent with and mutually explanatory of each other, but in the case of ambiguities or discrepancies between these documents, Parties should enter into a discussion to arrive at an agreement.  In the event that Parties fail to reach such agreement, priority of the documents forming this contract for discrepancy resolution shall be as follow (or voluntarily agreed by parties):      

1.2.1. Bid-winning notice or contractor appointment letter;

1.2.2. Special conditions (if any): Appendix No… [Execution progress]; Appendix No…. [Contract price, advance, payment and settlement]; Appendix No.... [Types of forms or templates];

1.2.3. Terms and conditions regarding such priority;

1.2.4. Contractor’s recommendations and attached documents (Appendix No... [Bidder's bidding documents or proposal];

1.2.5. Reference clause (Appendix No… [the Project Owner’s Invitation for bid or Request for proposal]);

1.2.6. Amendment or supplementation carried out through a written document or record on contract negotiation;

1.2.7. Contract bond, advance payment bond and other guarantee (if required); 

1.2.8. Other documents (specifying documents – supplementary appendices required during the contract execution process).   

Article 2. DEFINITIONS AND INTERPRETATIONS

Words and phrases (defined and interpreted) will be construed to have the following meaning and used herein, unless the context clearly indicates otherwise.

2.1. “Project owner” refers to ... (Project Owner’s transaction name) already mentioned in the preamble hereto and his/her legal successors other than those authorized by the project owner.

2.2. “Project management consultant” refers to ... (name of the contractor designated by the project owner) designated in the preamble hereto and his/her legal successor other than those authorized by the contractor.

2.3. “Project” refers to the project (project’s name).

2.4. “Construction work” refers to the…(name of the construction work) carried out by the design contractor under the signed design agreement.  

2.5. “Project item” refers to a single construction work specified in the contract (if any).

2.6. “Project owner’s representative” refers to … (who is introduced by the project owner in the contract or appointed at some point of time as per Article ...Clause... [project owner's representative]) and who acts on behalf of the project owner to administer activities.  

2.7. “PMC’s representative” refers to … (who is introduced by PMC in the contract or appointed by PMC as per Clause 10.1 [also known as PMC's representative]) and who acts on behalf of PMC to administer activities. 

2.8. “Contract” refers to part 1, part 2 of and materials attached to the contract … (as per Clause 1.1 [Contract documentation]).

2.9. Project owner’s invitation for bid or request for proposal refers to all of the documents referred to in Appendix No… [Project owner’s invitation for bid or request for proposal].

2.10. PMC’s invitation for bid or request for proposal refers to a document attached to the bid form which is signed and submitted by PMC as inclusion in the contract according to Appendix No… [PMC’s Invitation for bid or request for proposal].  

2.11. Party refers to either the PO or PMC, depending upon the context in which the term is used.

2.12. “Day” refers to a calendar day and “month” refers to a calendar month, unless otherwise defined in this contract.

2.13. “Force majeure clause” is defined in Article ... [Force majeure]

2.14. “Law” refers to all of the legislation of the Socialist Republic of Vietnam and related guides thereto.

2.15. “Written consent” refers to the PO’s official acceptance of any memorandum or agreement between both parties during the contract execution process.

2.16. “Appendix” refers to a set of complete pages intended for clarifying the contract which is called an Appendix to and is an integral part of the contract.

2.17. “Work” is defined as a service rendered by PMC as per Article 3 [Description of scope of work].

ARTICLE 3. DESCRIPTION OF SCOPE OF WORK

The PO agrees to hire PMC and PMC agrees to carry out project management works in the project … (project’s name) as follows: 

- Arranging for preparation of investment reports, investment projects or economic-engineering feasibility reports;

- Arranging for site clearance compensation and resettlement activities on the part of the PO;

- Holding architectural design tests;

- Conducting evaluation of investment projects, economic – technical feasibility reports and investment outlay;

- Conducting assessment of engineering designs, construction designs and cost estimates;

- Organizing selection of construction contractors;

- Arranging for management of construction quality, volume, progress and expenses;

- Ensuring construction safety and environmental sanitation;

- Organizing formulation of construction norms and unit prices;

- Organizing control of quality of building materials and construction quality upon the PO’s request; 

- Organizing inspection and certification of conformity with construction quality requirements;

- Arranging for acceptance testing, payment and final settlement of the contract; payment and settlement of construction investment capital;

- Organizing project commissioning and handover;

- Undertaking activities related to protect commencement, opening, communication and advertising activities;

- Arranging for other managerial activities to be carried out.

(Activities that the PO hires the project management consultant to carry out in specific projects shall be voluntarily agreed upon by the parties)

PMC ensures that they will carry out management of the project …(project’s name) in conformity with the agreed design, high quality standards, in sufficient and accurate quantity, and according to the approved schedule; guarantees conformity with environmental safety, sanitation, fire and explosive prevention and control requirements; ensures that they will manage the project … (project's name) as per construction regulations of the Socialist Republic of Vietnam.

Scope of activities carried out by PMC shall include but not limited to the followings which are specified in the Appendix No… [Project owner’s invitation for bid and request for proposal]:

- Controlling execution of all of construction contracts signed by other contractors with the PO;

- Assessing and examining construction schedules of other contractors, modifying and replacing any project execution schedule (where necessary) which are required to agree with the master execution plan (the general plan) and timeline which have been approved;  

- Assessing current project execution and thoroughly understanding project execution procedures for drawing up the project management and control plan;

- Carrying out assessment of changes related to design; construction; purchase of building materials, equipment, conformity with occupational safety and environmental sanitation, fire prevention and control requirements; test operation, commissioning and handover of a construction work; operational training: suggesting to the PO proper solutions to ensuring these changes do not cause harm to safety, quality and progress of execution of the project;

- Assisting the PO in setting, revising and assessing criteria for contractor selection;

- Examining, reporting and monitoring manning and equipment supply of contractors;

- Tracking, evaluating and reporting how contractors keep up with predetermined schedules;

- Reporting any defect or deferral arising from other contractor's failure to complete work on schedule and requesting these defaulting contractors to take actions or apply serious solutions to ensure all works will be done on schedule as agreed upon with the PO. Based on actions or solutions recommended by the contractor, PMC shall evaluate and propose their own solutions to completing the project according to the predetermined plan;

- Submitting daily, weekly, monthly and ad-hoc progress reports upon the request of the PO, each of which includes the following contents: overview of the entire project, volume and quality of each activity that has been performed and comparison with the stated plan or signed contracts, difficulties and recommendations; 

- Assessing project quality;

- Giving the PO advice on systemization and control of project documents;

- Assisting the PO in management of project-related risks.

- Assisting the PO in checking and administering progress and quality of design in conformity with the signed construction design contract.

- Checking, reporting and consolidating changes or supplementations of the construction design during the process of project execution.

- Assisting the PO in reviewing, inspecting and controlling formulation and execution of the construction plan;

- Determining major factors affecting construction activities;

- Overseeing site preparations made by contractors, such as building temporary facilities for project execution (e.g. offices located nearby the construction site, storage facilities or yards, power and water supply systems, temporary roads or fences, used for construction activities, etc.;    

- Checking contractor’s mobilization of construction personnel, machinery and equipment;

- Administering contractor’s construction method;

- Administering contractor’s construction progress;

- Controlling contractor’s construction quality;

- Administering contractor’s plan for supply of building materials and equipment; 

- Administering other plans to facilitate construction activities;

- Assisting the PO in carrying out inspection, oversight and management of contractors and other consulting contractors participating in the project to ensure the project execution progress, quality, safety and environmental sanitation and fire prevention and control;

- Examining, inspecting and creating construction logbooks;

- Examining and inspecting documents of contractors and other consulting contractors in accordance with the contract entered into with the PO;

- Organizing and presiding over staff meetings at the construction site and attending meetings chaired by the PO;

- Examining and inspecting periodic reports (i.e. on a daily, weekly or monthly basis) and other reports prepared by contractors;

- Carrying out examination and evaluation of activities that may be supplemented or changed compared to approved plans or documents;

- Supervising and managing contractors so that they perform their work within important time points and periods in the project;

- Informing the PO of the sufficient amount of activities before carrying out acceptance testing of the project;

- Establishing and administering the plan for testing and commissioning of the project in conformity with the general time schedule;

- Examining the plan and requirements for testing, commissioning and handover of the project;

- Examining, overseeing and expediting establishment and execution of plans to ensure occupational safety and environmental sanitation, fire prevention and control;

- Helping the PO and user thoroughly understand necessary operational mechanisms and skills;  

- Examining the training plan developed by training contractors;

- Managing the training process and operational instructions;

- Checking and supervising technology transfer between contractors;

ARTICLE 4. CONTRACT PRICE, ADVANCE AND PAYMENT

4.1. Contract price

- The amount specified in the Appendix No… [Contract price, advance and payment] as the contract price shall be …..(in words:…)

- This amount shall cover costs incurred from carrying out works described in Article 3 [Description of scope of work] and Article 8 [PMC’s responsibilities and obligations];

- It shall also cover costs that may arise as prescribed in Article 6 [Changes and modifications of the contract price].

4.2. Inclusion in the contract price

The contract price shall cover:

- Expert wages, costs of building materials, input materials, overheads and other costs, costs of professional liability insurance, anticipated taxable income and value added tax, all of which are detailed in the Appendix No. ...[Contract price, advance, payment and settlement]   - Necessary costs paid for preparing complete documentation based on opinions or information obtained in meetings or reports;

- Field inspection or travel costs for on-site acceptance testing, test operation or commissioning and handover activities;

- Costs incurred from buying reference materials used for consulting activities, etc.

4.3. Advance

No later than …days from the date of entry into force of this contract (or the date of receipt of the advance guarantee referred to in Article 5 [Contract bond]), the PO is bound to pay PMC an advance sum of VND ... as part of the contract price.

- In words: …………

4.4. Payment schedule

Contract payment shall be subject to the payment schedule stipulated in the Appendix No... [Contract price, advance, payment and settlement], and conform to the following specific regulations:

4.4.1. Within … days from the date of signing of the report on acceptance testing of construction work … (name of the construction work), the PO shall pay PMC a sum of...as the agreed contract price.

4.4.2. Within … days from the date of signing of the report on acceptance testing of construction work … (name of the subsequent construction work), the PO shall pay PMC a sum of...as the agreed contract price.

4.4.3. Within … days from the date of signing of the report on acceptance testing and handover of the construction work before being brought into operation, the PO shall pay the contractor a sum of...as the agreed contract price;

4.4.4. Within … days from the date of the PO’s approval of settlement of the contract, the PO shall pay PMC the residual amount of... based on the agreed contract price. 

4.5. Payment records: Subject to regulations laid down in the Appendix No... [Contract price, advance, payment and settlement].

ARTICLE 5. CONTRACT BOND (IF ANY)

5.1. PMC shall be bound to submit the advance guarantee letter (if any) of a bank equivalent to an amount of… which is the advance sum referred to in the form given in the Appendix No… [Contract bond] and ensure that this guarantee is valid until the PO recovers the whole amount of advance (this clause is applicable if an advance guarantee is required).

5.2. PMC shall be bound to submit the contract bond (if any) of a bank equivalent to an amount of… as the contract price according to the form given in the Appendix hereto attached. Guaranteeing bank is a bank where PMC has their active account. The PO shall not be bound to comply with any payment clause unless contractor's valid bond is received.

5.3. PMC shall not be entitled to repayment of a bond amount if PMC refuses to execute the signed contract.

5.4. After PMC’s fulfillment of obligations stated in the contract, the PO shall send a request to the bond-issuing bank for repayment of the amount that PMC has paid as their guarantee for contract execution.

ARTICLE 6. CHANGE AND MODIFICATION OF CONTRACT PRICE

6.1. Additional costs may be accepted only if PMC's scope of work is increased to meet the PO's demand;

6.2. Duration of execution of work may be extended for reasons best known to the PO, construction contractor or suppliers during the project execution period. Extended time length shall begin after ...month(s) from the date of handover of a construction work or project item as defined in the approved project execution schedule. 

6.3. If such situation arises or tends to arise, PMC shall inform the PO prior to execution. None of additional costs may be paid unless the PO agrees in writing ahead of execution.

6.4. Agreement on payment of additional costs between the PO and PMC shall be negotiated.  Additional costs shall be calculated on the bases of the contract price calculated according to the Appendix No… and agreements on modification of the contract price when there is a change in which calculating additional costs under terms and conditions of additional cost payment is permitted.

ARTICLE 7. CONTRACT EXECUTION SCHEDULE 

As specifically prescribed in the Appendix No. ...[Work progress], the entire time length of execution shall be ...days, including national and public holidays.

ARTICLE 8. PMC’S JOINT LIABILITIES AND OBLIGATIONS

8.1. PMC shall ensure that all of PMC’s contractual activities are required to be consistent with the invitation for bid or the request for proposal referred to in the Appendix No…. and conform to standards and regulations in force as well as regulations and standards of the Socialist Republic of Vietnam;

8.2. PMC shall ensure that they will administer and manage the project ... (project's name) so that it is executed on schedule, in conformity with the predetermined design and quality and safety requirements;

8.3. PMC shall be bound to establish the proposal for project management consultancy;

8.4. PMC shall be bound to carry out and bear their responsibilities for outcomes of their work which are then realized by professionals having competences prescribed by law and qualifications in order to meet project requirements.

8.5. PMC shall carry out works stated in this contract in a professional manner with due skills, discretion, and devotion and in conformity to the PO’s requirements to complete the project. PMC shall always give the PO all project information in a sufficient and timely manner.

8.6. PMC shall have the burden of frequently managing, supervising and encouraging contractors and other consultants to ensure the project is executed according to the predetermined schedule, and meets quality and safety standards.

8.7. PMC shall select and assign their staff who have required competence according to the list approved by the PO in the Appendix No... [PMC's staff] hereto attached to perform their contractual work.

8.8. PMC shall be bound to undertake that, whenever requested by the PO, PMC will assign their competent and qualified representative to deal with any difficulty at any time decided by the PO (even during days off) till the date of completion and handover of their project.

8.9. PMC shall observe commands and instructions given by the PO, except for those violating law or those that are impossible for PMC to follow.

8.10. PMC shall be responsible for providing documents or materials used in meetings, reports and assessments, etc. of which quantity is requested by the PO.

8.11. PMC shall be responsible to the PO for and legally liable to all activities performed by their staff.

8.12. OMC shall be bound to buy professional liability insurance in accordance with law;

8.13. PMC shall protect legitimate interests and benefits of the PO during the process of rendering their service;

8.14. PMC shall arrange means of transport and accommodations for work on their own if they have to go on business trips away from their office;

8.15. PMC shall be totally responsible to the PO for any issue that may arise from their transactions, completion of their assigned work, payment and settlement required by the contract they have signed with the PO.

8.16. PMC shall be liable for compensation for any damage through their fault during their rendering of work;

8.17. PMC shall be responsible for assigning their qualified persons to collaborate with the PO in proving and protecting accuracy and integrity of materials related to construction volume and quality in front of entities concerned during the project execution process under terms and conditions of this contract; 

8.18. PMC shall be responsible for managing, storing and using, duly and effectively, any document, equipment or asset provided by the PO, and sending them remaining in good condition back to the PO upon fulfillment of their contractual obligations;

8.19. PMC shall be responsible for complying with legally-required business obligations, such as application for business registration, practicing registration and discharge of tax obligations, etc.  

8.20. PMC shall be charged with assuring security for materials and information regarding the project;

8.21. PMC shall respond in writing to the PO's requests or recommendations within a period of …days of receipt.

ARTICLE 9. PROJECT OWNER’S JOINT RIGHTS AND OBLIGATIONS

9.1. The PO shall provide PMC with project-related information and materials that the PO has obtained as early as possible upon PMC's request;

9.2. The PO shall provide PMC with one (01) copy of any material relating to the design and the signed contract with other contractors; 

9.3. The PO shall collaborate with PMC and provide best conditions for PMC during the contract execution process.

9.4. Payment

The PO shall pay PMC in full at the contract price agreed upon in this contract.

9.5. Information

The PO shall respond in writing to PMC’s requests or recommendations within … business day(s).

9.6. PO’s staff

The PO shall be responsible for assigning their persons having competence in dealing with specific activities to work with PMC. These staff is specifically defined in the Appendix No… [Project owner’s staff].

9.7. The PO shall hold a discussion with PMC to reach a mutual agreement before making a decision on important matters relating to scope of work undertaken by PMC;

9.8. The project owner shall give a written confirmation of fulfillment of contractual obligations to PMC.  However, the PO’s approval or issuance of any written document shall not lead to reduction in PMC's liability during execution of this contract.

ARTICLE 10. PMC’S STAFF

10.1. PMC shall assign any staff member having competence to represent and administer work on behalf of PMC. 

10.2. PMC’s staff must obtain practicing certificates, qualifications, skills and experiences which are appropriate and corresponding in terms of their professions and word duties as specifically provided in the Appendix No… [PMC’s staff]; 

10.3. PMC’s main staff shall be charged with performing assigned word duties within the necessary period of time to ensure the progress of execution of the project.  PMC shall not be allowed to replace any staff member without consent from the PO;

10.4. The PO may request PMC to replace any of their staff member if that member is deemed to be bad at management or incompetent, performs work with a lack of discretion, or is absent from work for more than…day(s) without sound reasons and consent from the PO.  In such case, PMC must assign other staff member to take over the previous member’s duties within …day(s) upon the PO’s request, cover, at their own expense, costs incurred from such staff replacement, and shall not be allowed to delay their rendering of service;

10.5. Before staff replacement, PMC shall send the PO a written request earlier than ... day(s) for their consideration of grant of an approval decision;

10.6. PMC’s staff shall be entitled to employee policies stipulated in the Labor Code of Vietnam from which costs incurred are covered by PMC;

10.7. PMC’s staff must have a good command of the language specified in the contract.

ARTICLE 11. CONTRACT SUSPENSION AND TERMINATION

11.1. Contract suspension and termination by the project owner;

11.1.1. Contract suspension by the project owner

If PMC fails to fulfill their contractual obligations, the PO may inform PMC to suspend their work and request PMC to correct any error within a specified time period.

11.1.2. Contract termination by the project owner

The project owner may terminate the contract if PMC:

(a) fails to comply with Article 5 [Contract bond] or a notification referred to in 11.1.1 [Suspension] mentioned above,

(b) discontinues their work or explicitly expresses their intention of discontinuing implementing their contractual obligations.

(c) without good cause, quits implementing their work as per Article 7 [Contract execution schedule],

(d) assign this contract without required agreement,

(e) goes bankrupt or into liquidation, is closed, subject to property control measures, is forced to negotiate with a creditor or continues their business under control by a property controller, an authorized person or an administrator in the creditor’s interest, or has performed or involved in any act or matter (as provided in applicable laws) that causes similar impacts on these occurrences, or    

If one of the aforesaid situations occurs, the PO may do so by notifying PMC …day(s) before termination. Despite the situation (e), the project owner may inform contract termination immediately.

The PO's option of deciding to terminate the contract shall not result in any impact on their other interests agreed upon in the contract.  

After contract termination, the PO may continue completing their work and/or assign other entity to carry out their work. The PO and this entity, in this case, may use any material of PMC or PMC’s representative in accordance with this contract.

11.1.3. PO’s right to terminate the contract.

The PO may terminate the contract for the convenience of the PO by notifying PMC of such contract termination. Such contract termination shall commence after …day(s) from the date of PMC’s receipt of the notification from the PO. The PO shall not be entitled to terminate the contract under this clause to perform work on their own or assign another management entity to perform their work.

11.2. Contract suspension and termination by PMC:

11.2.1. PMC’s right to suspend their work

In the case of the PO’s failure to comply with Article 4 [Contract price, advance and payment], PMC may, after notifying the PO not later than… day(s), temporarily suspend their work (or reduce their work proportion) unless and until PMC is paid advance or receive other payments under terms and conditions of this contract, as the case may be and as described in the notification.

Such suspension by PMC shall not cause any impact on PMC's rights to charge costs incurred by their deferred payments and to terminate the contract in accordance with 11.2.2 [Contract termination by PMC]. 

After that, if PMC receives evidence or payment (mentioned in a respective provision and the aforesaid notification) before sending contract termination notification, PMC shall resume their work as early as possible. 

If PMC is affected by such late payment and/or incurs costs consequential on their pending work (or reduction in their work proportion) as provided herein, PMC shall be bound to inform the PO and shall be entitled to:

(a) request an extension of execution duration as an offset against such late payment in the event that completion of their work is being or will be postponed, and

(b) receive payment for these costs together with rational profits, which are all taken into account in the contract price.

Upon receipt of this notification, the PO shall agree or decide on these solutions.

11.2.2. Contract termination by PMC

PMC may terminate the contract after informing the PO in writing prior to at least...day(s) in the cases where: 

(a) The PO fails to make payments to PMC which are due under terms and conditions of this Contract and are not in dispute as stated in Article 4 [Contract price, advance and payment] within ...day(s) of receipt of PMC’s written notification of overdue payments;

(b) The PO basically fails to fulfill their contractual obligations.

(c) In consequence of force majeure, it is impossible for PMC to carry out an important part of their work for a period of not less than ...day(s).

(d) The PO goes bankrupt, into liquidation, closes their business, is subject to property control measures to the extent that they have to make arrangement with creditors, or keeps their business under control by designated persons or representatives of creditor's interests, or performs or involves in any act or event (as provided by enforceable laws) that causes similar impacts on the aforesaid situations.

In any situations mentioned above, PMC may, by informing the PO ...day(s) in advance, terminate the contract. Despite the situation (d), PMC may inform contract termination immediately.

The option of PMC’s deciding to terminate the contract shall not cause any impact on their other interests as agreed upon in this contract.

11.3. Payment upon contract termination.

11.3.1. In the event that one of situations leading to contract termination occurs, either party may inform the other party of contract termination …day(s) in advance.

11.3.2 PMC shall be bound to give materials prepared on their own at the time of termination to the PO.

11.3.3. After contract termination, the PO may continue completing their work and/or assign other entity to carry out their work. The PO and this entity, in this case, may use any material of PMC or PMC’s representative.

11.3.4. As soon as possible after issue of notification of contract termination and not later than…day(s) after that, the PO and PMC shall enter into a discussion to determine their work value and materials prepared by PMC under this contract (Contract value determined upon the termination date).   Within duration of …day(s) after determination of the contract value upon termination, the PO shall make full payment to PMC.

ARTICLE 12. INDEMNIFICATION AND LIMITATION OF LIABILITY

12.1. PMC shall be bound to indemnify the PO and the PO’s staff by paying total actual cost of mitigation and infliction of loss or damage if there is any complaint, damage, loss and cost (including fee and legal costs) related to:

12.1.1. Bodily injury, disease, illnesses or death of any person which is caused by fault on PMC's part;

12.1.2. Damage to any property which:

a) is caused through PMC’s fault;

b) is attributed to lack of responsibility, willful misconduct or violation of the contract on the side of PMC and PMC’s staff, or any person directly or indirectly hired by PMC.

12.2. PMC’s liability for indemnification prescribed in 12.1 above shall be stipulated in paragraph... article... chapter... of The Government’s Decree No… on construction quality management.

ARTICLE 13. COPYRIGHT AND RIGHT OF ACCESS TO MATERIALS

13.1. PMC shall hold copyright on all of reporting and other materials prepared by PMC's staff. The PO may reserve all of their rights to use these materials for their business purposes without having to ask for permission from PMC.  

13.2. PMC shall undertake that reporting and other materials prepared by PMC and provided for the PO do not infringe upon copyright or intellectual property right owned by any person or third party.

13.3. The PO shall not bear responsibility or consequence for any complaint that any reporting or other material referred to herein has infringed upon copyright or intellectual property right owned by any other person or third party.

ARTICLE 14. CONFIDENTIALITY

Except duties assigned by the PO, PMC shall not be entitled to reveal information about their work or any information relating to the project to any third party without receiving written consent from the PO.

ARTICLE 15. INSURANCE 

In order to avoid any risk of professional liability, PMC shall be bound to buy professional liability insurance in accordance with law.

ARTICLE 16. FORCE MAJEURE

16.1. Definition of force majeure

“Force majeure” means events that occur objectively and are not within the reasonable control of the parties, such as earthquake, storm, flood, typhoon, hurricane, tsunami and land corrosion, conflagration, hostility or likelihood of war, etc. and other calamities that are unforeseen, or lawful requirements set out by Vietnamese state agencies. 

16.2 Notice of the occurrence of force majeure

If one party fails to fulfill part or all of their responsibilities and duties due to force majeure or because of being affected by another party as prescribed by the contract, within duration of...day(s) after occurrence of a force majeure event, the affected party shall notify the other party in writing of details of such force majeure event.

After sending their notification, the informing party shall be entitled to exemption from fulfillment of their contractual obligations during the time when such event hinders such fulfillment.

Where a force majeure event occurs, payment obligations owed by a party to the other party as required by the contract shall not be applicable. 

One party must send the other party a notification right after they are not affected by such force majeure event.

16.3. Responsibilities of the parties in case of force majeure.

A party's failure to fulfill their obligations due to force majeure event shall not be deemed as sufficient grounds for the other party’s contract termination.

In the case where a force majeure event occurs, contract execution duration shall be extended to be the same as duration of occurrence of such event during which the affected party is unable to fulfill their contractual obligations. Such force majeure circumstance should be dealt with as soon as reasonably practical with all reasonable efforts to be made and urgent actions to be taken by both parties.  

16.4. Optional contract termination and payment

Where a force majeure event occurs and all efforts of a single party or the parties do not bring about any result and the contract has to be terminated at a specific time, the informing party shall send a written notice of contract termination to the other party which will be valid within ...day(s) of receipt of such notice.

PMS shall be entitled to the following payments:

16.4.1. Payments for products which have been finished and confirmed by the PO.

16.4.2. Costs of cross-border shipment of PMC’s machinery and equipment back to their country if PMC makes their request which is certified by Vietnam customs (applicable if the contract involves a foreign party).

16.4.3. Costs of transit fares of PMC’s staff who have worked in Vietnam according to the actual registration and the PO’s approval (applicable if the contract involves a foreign party).

16.5. Obligations to comply with laws

Notwithstanding any other regulations laid down in this Article, in the case of the occurrence of an event or circumstance not within the reasonable control of the Parties (including but not limited to force majeure events) which causes either or both parties inability or failure to comply with laws to fulfill their contractual obligations or with the Law on Contract Modification, and which parties are entitled to discontinue executing the contract, based on the notification sent from this party to the other party of this event or circumstance,      

The Parties shall no longer have obligations to implement their duties without prejudice to rights held by any party.

ARTICLE 17. REWARD AND PENALTY

17.1. Reward for contract execution: If PMC finishes administering and managing the project earlier than duration specified in the approved project execution schedule, the PO shall give a reward which is equivalent to ...% of the contract price per every...day(s) and is limited to …(12%) of the contract price.

17.2. Penalty for breach of the contract.

17.3. On the PMC side: If PMC’s fault leads to delay in the execution progress, …% of the contract price shall be charged as a penalty for…day(s)’s delay and shall be limited to …(12%) of the contract price.

17.4. On the PO side: If they fail to provide materials on time and make payments according to the stated execution schedule, they shall be subject to the same penalty as applied to PMC.

ARTICLE 18. COMPLAINT, DISPUTE AND ARBITRATION

If there is any dispute between involved parties or there is any issue that arises, the parties shall promptly enter into a negotiation to seek amicable solutions. If such negotiation is failed, within duration of …day(s) from the date on which such dispute arises, the parties shall file the arbitration case to resolve such dispute under Vietnamese rules or the judgement of the People’s Court in accordance with law.  The decision made by the Arbitration Court or the People’s Court shall be final and binding.

ARTICLE 19. CONTRACT SETTLEMENT

19.1. Contract settlement

Within duration of…day(s) of receipt of the PO’s certification that PMC has fulfilled all of their contractual obligations, PMC shall send the PO ...set(s) of draft report on contract settlement associated with materials prepared by using the form approved by the PO, including:

a) Value of all of services rendered under the contract, and

b) Other payments that PMC deems to be due according to the contract or other agreements.

If the PO does not agree or supposes that PMC has not yet provided sufficient bases for confirmation of a part of the draft report on contract settlement, PMC shall provide more information for the PO as duly requested and may have to change such draft report according to an agreement between the parties. PMC shall prepare and submit to the PO a contract settlement report as mutually agreed upon by the parties.

Notwithstanding this, if there is any agreement between both parties on any change in the draft report on contract settlement after their consultation, the PO shall pay PMC in full for the additional value.  

19.2. Termination of PO’s liability

After the contract settlement report is signed by the parties, the PO shall not bear responsibility to PMC for any issue relating to the contract, except if specified by PMC:

a) in the contract settlement report, and

b) except issues and works arising after PMC’s signing of the certification of fulfillment of contractual obligations in the contract settlement report referred to in paragraph 19.1 [Contract settlement].

ARTICLE 20. GENERAL CLAUSE

20.1. Both parties are committed to complying with terms and conditions of this contract.

20.2. This contract includes …pages and …Appendix, made into …Vietnamese copies. The PO shall keep…Vietnamese copies/copy. PMC shall keep …copies/copy (If there are at least two languages, the number of copies in other languages to be kept by the parties shall be clearly stated).

20.3. This contract shall enter into force from date (dd/mm/yyyy)………………...

 

PMC’S REPRESENTATIVE

PO’S REPRESENTATIVE