Договор о консорциуме (по подаче тендерной документации)
This Pre-bid Agreement is made, signed and came into force on this __ day of __ 20__ by and between:
1 ___X___, the company organized and existing under the laws of ____ (указать юрисдикцию), having its principal place of business at _________ (указать место нахождения), which expression shall include all assigns, assignees and successors in title of the X, hereinafter refereed to as "Party 1", and
2. ___Z____, the company organized and existing under the laws of ____ (указать юрисдикцию), having its principal place of business at ______________ (указать место нахождения), which expression shall include all assigns, assignees, licensees and successors in title of the Z, hereinafter refereed to as "Party 2",
PARTY 1 AND PARTY 2 ARE REFERRED TO HEREINAFTER EITHER INDIVIDUALLY AS "PARTY" OR COLLECTIVELY AS "PARTIES",
WHEREAS, Party 1 and Party 2 (hereinafter individually called a "Party" and together called "the Parties") wish to collaborate to pursue and ultimately to prepare a bid (hereinafter called "the Consortium Bid") for __________________________ (наименование проекта, для реализации которого создается консорциум) (hereinafter called "the Project") to the (Client) in relation to the design, supply and construction of __________
(описание проекта, для реализации которого создается консорциум),
all as is more fully described in Appendix I (hereinafter called "the Works") and if successful to negotiate, enter into and execute the resultant Works contract.
The Parties mutually declare that they have the authority and desire to enter into this Contract;
NOW THEREFORE and in consideration of the premises and the mutual covenants set out hereinafter, the Parties agreed as follows:
NOW IT IS HEREBY agreed as follows:
1. The Parties will act in Consortium to submit the Consortium Bid to the Client when required and will if such bid is successful, negotiate a Works contract with the Client with joint and several responsibility for the execution of the Project.
2.1 The Consortium Bid shall be in such form and shall contain such terms and conditions as the Parties shall jointly agree. After the preparation approval and submission of the Consortium Bid the Parties shall as between themselves be jointly and severally bound to the Client by its provisions and no Party shall vary or seek to vary the same without the previous written consent of all the other Parties.
2.2 If the Client neither accepts nor rejects the Consortium Bid and invites the Parties to attend negotiations the negotiating team and the timing and tactics of the negotiations shall be decided upon by the Parties. No significant deviations from the terms of the Consortium Bid shall be agreed with the Client without the prior approval of the Parties.
2.3 Unless extended by agreement in writing of the Parties this Agreement shall remain in force until: a) the Parties shall fail to agree as to the terms and conditions of the Consortium Bid and therefore no Consortium Bid is made; or
b) the Consortium Bid shall not be accepted by the Client by the date for acceptance therein or any extension thereof or any negotiations with the Client shall prove conclusively unsuccessful;
c) the signing of the Consortium Agreement provided for below; or
d) _________________________ (указать дату завершения консорциума)
Upon the happening of the first of any such events this Agreement shall (save as to the provisions of this sub-clause) automatically cease and determine and each of the Parties shall (subject to any agreement between them to the contrary) be separately and solely liable for all costs and expenses which may have expended or incurred in connection with the Consortium Bid or negotiations and shall not have any further obligations except as provided in Clause 8. 3. The Parties will work exclusively together in the pursuit of the Project and no Party will at any time pursue all of part of the Project independently without the written approval of the other Parties.
4. No Party shall be permitted to transfer or assign its rights under this Agreement without the previous written permission of the other Parties but subject as provided below the Parties shall be permitted to sub-contract in accordance with their normal practice provided that they remain fully responsible at all times for the performance of such sub-contractors and that this does not in any way reduce their obligations to the Client as a Consortium Partner. In order to maximise participation of the Parties in the Works Contract the Parties shall first offer work to be sub-contracted to appropriately experienced and qualified companies which are either parties or members of groups to which such other Parties belong subject to any commercial constraints which may become apparent during the preparation of the bid.
5. Party 1 will be the Consortium Leader and as such will act as spokesman of the Consortium and represent the Consortium in all decision making. Acting in accordance with the instructions and approval of the other Parties ................................................ will lead negotiations with the Client.
6. For the purpose of preparing the Consortium Bid the Parties will agree upon a detailed split of work and responsibilities in accordance with Appendix I to this agreement.
7. The Parties will prepare at their own cost offers on the basis required for that part of the work agreed to be their responsibility and will co-ordinate their representations through the Proposal Manager in a form to be mutually agreed.
8. Each Party agrees to keep confidential and not disclose to Third Parties nor to use for its own purposes information which may have to be disclosed to the other Parties for the purposes of this Agreement but this obligation shall not apply to:
a) Information already in the possession of the receiving Party at the date of disclosure;
b) Information which is in the public domain or enters the public domain through no fault of the receiving Party; and
c) Information received by the receiving Party from a Third Party which it was reasonable to believe was both lawfully in possession of the same and had not received the information directly or indirectly from the disclosing Party.
9 Except in the case of any breach under paragraph 8 above, the Parties shall not be liable to each other for any costs or damages incurred howsoever arising during the period of proposal preparation. Withholding of approval of the bid by any of the Parties shall not give rise to legal liability towards the others.
10.1 Before the submission of the Consortium Bid the Parties shall enter into an agreement (hereinafter called "the Consortium Agreement") setting out in greater detail the particular rights, duties and obligations and liabilities of the Parties to each other that shall apply if the Consortium Bid is accepted by the Client including joint and several liability to the Client. The Consortium Agreement shall (inter alia) clearly identify such part of the Works comprised in the Consortium Bid as shall be intended to be carried out by and be the responsibility of each of the Parties and shall set out such further terms and conditions as shall be required to enable the Works Contract to take effect.
10.2 In addition, the Consortium Agreement will include provisions for the management of the consortium by a Management Board comprising equal members of representatives from each of the Parties. Decisions of the Management Board shall be reached by unanimous vote. The Chairman of the Management Board, who shall not have a special or casting vote, shall be elected from the members of the Management Board. The Management Board shall appoint a Project Managing Director who will be responsible for co-ordinating the activities of the Parties.
11. The Parties shall also agree before submission of the Consortium Bid what guarantees or indemnities if any may be necessary to support the Parties' obligations to the Client's defined requirements. Any bonds, guarantees or other similar obligations required by the Client to be given by bankers and other financial institutions shall be arranged jointly by the Parties but with several responsibilities. The charges of such bankers and other financial institutions for giving such bonds, guarantees or like obligations shall be borne by the Parties in the proportion which the value of the part of the Works for which each Party is responsible bears to the value of the whole of the Works. Each of the Parties shall be responsible for arranging on a several basis its own counter-indemnities, counter guarantees and other similar securities required in support of such bonds, guarantees and the like and for all expenses in connection therewith.
12. The Parties further agree that each Party shall bear full technical and financial responsibility for its scope of work as presently agreed and set out in Appendix I hereto. Each Party will be responsible for estimating and presenting to the other Parties a price for its scope of work including contingencies relating to the Party's performance of that scope of work but excluding profit, contingencies and provisions to cover interface uncertainties, such as those relating to quantity estimates provided by one Party to another Party, and liabilities to the Client for liquidated damages. The prices as prepared by each of the Parties and their breakdown shall be fully disclosed to the other Parties for review and discussion, with the mutual intention of arriving at the most competitive bid price excluding the items referred to above, but the ultimate decision as to whether and how a particular price should be changed will rest with the Party responsible for preparing it. As soon as possible after the competitive bid price has been established the Parties shall discuss and agree a percentage to be added to the competitive bid price as the element incorporating profit, contingencies and provisions to cover interface uncertainties, referred to above.
13. Prior to submission of the Consortium Bid it is the intention of the Parties to specifically limit the total liability applying to the resultant Works Contract.
Signed for and on behalf of Party 1
_________________ /Managing Director/
Date - ________ 20__
Signed for and on behalf of Party 2|
_________________ /Director General/
Date - ________ 20__