THIS AGREEMENT FOR THE CONSTRUCTION OF THEEXTENSION SAND ROOM AND WAREHOUSE AND LOADING AREA OF THOONGSONG PLANT (Referred to hereinafter as the “Agreement”) is entered into, on16 September 2015by and between:
SAINT-GOBAIN WEBER Co. Ltd., a company incorporated under the laws of Thailand and having its registered office at Gypsum Metropolitan Tower 14th Floor, 539/2 Si-Ayutthaya Road, Thanonphayathai, Ratchathewi, Bangkok 10400 – Thailand,represented by Miss. PimjaiUTADEJ, Managing Director,
Referred to hereafter as “SGW”,
On the one part;
And
NAKORN PART MACHINE CO.,LTD.a company incorporated under the laws of Thailand and having its registered office at 86/3, Pak Nakorn Road, Tambol Klung, Mueang District, Nakornsrithammarat80000 Thailand,representedby Mr. Anumas Eiamkong, Managing Director, duly authorized for the purpose of this contract,
Referred to hereafter as “NPM”.
Onthe other part;
Collectively referred to hereafter as “the Parties”.
WHEREAS:
SGW is a company specialized in the manufacture and sale of industrial mortars worldwide. SGW wishes to expand its business within the territory of Thailand and has planned to construct the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant.The Construction ofthe Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant isnecessary for the operation of the factory for manufacture of industrial mortars.
NPM has a solid expertise in the construction of plants and more generally NPM has a long-term experience in global construction project deliveries.
In consideration of the above mentioned experience of NPM, SGW wishes NPM to proceed to the construction of the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant under terms and conditions specified in this Agreement and NPM has accepted such terms and conditions.
1. DEFINITIONS
1.1. “Acceptance” means acceptance by SGW of the Works in accordance with all legal and contractual requirements (including but not limited to the Materials Specifications) and the acceptance of the fact that NPM has fulfilled its obligations under this Agreement. The Acceptance shall be materialized by the delivery of a Certificate of Acceptance by SGW to NPM.
1.2. “Agreement” means the present Agreement for the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plantand all its Schedules.
1.3. “Certificate of Acceptance” means the document provided by SGW to NPM attesting the Acceptance.
1.4. “Commencement Date” means the day on which NPM shall start the performance of the Works as stated in Schedule 1 - The Program.
1.5. “Date of Completion” means the day on which NPM shall finish the performance of the Works as stated in Schedule 1 - The Program.
1.6. “Location” means the location where the Works for the Construction of the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant has to be performed, i.e.10, Moo 10, Thoongsong-Huayod Road, Tumbol Kapang, Thoongsong District, Nakornsrithammarat 80000, THAILAND
1.7.“Material(s)” means all materials and/ or equipment necessary to perform the Works.
1.8. “Program” means a program for the performance of the Works showing the Works and the date for completion of the Works as detailed in Schedule 1.
1.9 “Subcontractors” means any third party appointed by NPM for the performance of the Works.
1.10 “Works” means all works and services as listed in Schedule 2 provided by NPM and/or Subcontractors and dedicated to the design, procurement, construction, completion and delivery of the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant in accordance with all legal and contractual requirements (including Drawings annexed in Schedule 3, Materials Specifications annexed in Schedule 4 and Specifications for Foundation Works in Schedule 7)
2. SCOPE OF THE WORKS:
SGW desires NPM to build the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant:
2.1. SGW requests NPM and NPM hereby undertakes to perform the Works at the Location.
2.2. NPM shall perform the Works, as listed in Schedule 2, in accordance with the Drawings annexed in Schedule 3 and the Specifications listed in Schedule 4 and 7.
3. NPM OBLIGATIONS
3.1. NPM shall perform the Works and bear all cost relating to the Works, including but not limited to the supply of electricity.
3.2. NPM shall perform the Works within the time specified in the Program.
3.3. The Works shall be executed and completed by NPM with due care, diligence and workmanship, in accordance with all contractual requirements, the industry’s best standards, and all relevant laws and regulations; and in such a manner as will always safeguard and protect the SGW’s interests.
3.4. NPM shall perform the Works in accordance with all applicable rules and regulations governing NPM'S performance of this Agreement, including but not limited to labour laws, and the preservation of health and safety, in order to maintain order, hygiene, discipline and safety within the jobsite.
3.5. NPM shall provide all documents requested by SGW for the performance of the Works.
4. SGW UNDERTAKINGS
NPM shall bear all costs and pay all charges relating to supply and distribution of water and electricity for the construction until end of the project.
5. RESOLUTIVE CONDITION
5.1. NPMshall obtain from Thai authoritiesall necessary licenses and permits, e.g. anoccupation permit, if required, for the performance and completion of the Works.
5.2. In the event NPMfails to obtain from Thai authorities these authorizations, license, permits or approval, SGW shall be entitled to terminate this Agreement.
6. PRICE AND PAYMENT CONDITIONS
6.1. SGW shall pay toNPM for the performance of the Works in the lump sum price of eleven million three hundred thirty five thousand six hundred fifteen baht forty seven satang (11,335,615.47 Baht), exclusive ofVAT (hereinafter "the Price”). The Price is fixed and definitive and shall not be subject to any adjustments for any reasons whatsoever.
The Price shall include all costs and expenses incurred by NPM to perform its obligations under this Agreement.For reference purposes only, the Parties acknowledge that the Price has been calculated on the basis of the price listed in Schedule5.n no event shall the list of prices appearing in Schedule5 be used to make any adjustment of the Price, which is fixed and definitive.
However, in case SGW requests NPM to perform additional works, the price of such additional works shall be negotiated on the basis of such prices list and agreed upon in writing between the Parties.
6.2. NPM shall bear and pay any and all taxes, duties, fees levies and charge imposed on NPM all local, state or national government authorities in connection with the construction of the Extension Sand Room and Warehouse and Loading Area of Thoongsong Plant, includingbut not limited to stamp duties imposed on the Agreement.
6.3. All payments under the present agreement shall be made, in accordance with the conditions specified above and within 45(forty-five) days following the date that SGW receives the invoice issued by NPM.Payment shall be made by means of wire transfer to the following bank account of Nakorn Part Machine Co.,Ltd.or Cheque on NPM’s name.
[Krung Thai Bank Public Company Ltd. Nakornsrithammarat Branch, account number 801-0-84687-2]
6.4Any amounts otherwise payable hereunder may be withheld in whole or in part by SGW on account of any actual or anticipated claims, damages or expenses arising out of NPM's failure to perform the Work in accordance with the provisions of the Agreement. For avoidance of doubt, in case SGW disputes quality/value of work or any work done, SGW shall be entitled to withheld the payment in the amount the SGW deems equivalent to such disputed quality/value of work or any work done. The SGW will make the payment within 45 (forty-five) days after the date that the parties mutually agree to the definite amount payable for the disputed details or value of work, without interests.
7. SUBCONTRATORS
7.1. SGW hereby acknowledges that NPM may subcontract part of the Works to third parties.Prior to subcontracting any parts of the Works, NPM shall notify SGW, in writing, of the identity and details of the Subcontractor and the part of the Works subcontracted. NPM shall obtained a written consent from SGW prior to subcontracting any parts of the Works.SGW is entitledto refuse the use of a particular Subcontractor without giving any justification to NPM.
7.2.NPM will be responsible and shall indemnify and hold harmless SGW from and against all losses, damages and liabilities that SGW might incur due to any Subcontractors.
7.3.NPM undertakes and warrants that the Subcontractors have been informed of the terms and conditions of this Agreement and have agreed with such terms and conditions.
7.4.The payment of Subcontractors is included in the Price. In consequence,NPM shall not be entitled to claim any additional price.
7.5. For avoidance of doubt, should NPM assign certain responsibilities to its Subcontractors, NPM shall not thereby be relieved of responsibility assumed by its Subcontractor for the Works or any part thereof.
8. PROGRAM
Before the commencement of the Works on the Location, NPM shall agree with SGW a program for the performance of the Works, showing the nature of the Works performed and the date for the completion of the Works.
The Program shall be annexed to this Agreement in Schedule 1 - the Program; and shall be considered as a part of this Agreement.
9. MATERIALS: DELIVERY – QUANTITY – QUALITY
9.1.NPM shall deliver any Materials necessary for the performance of the Works within the Location.Materials shall be checked and off-loaded during the opening hours of the jobsite except in case of exceptional circumstances and with the express approval of SGW.
9.2.The unit prices of Materials stated in Schedule 6 (called th