A CONSTRUCTION CONTRACT between a partnership and an individual entrepreneur
CONSTRUCTION CONTRACT
Almaty "02" July, 2024
LLP "C.kz ", represented by the Director of D.O.F., acting on the basis of the Charter, on the one hand, hereinafter referred to as the "Customer", and the Individual Entrepreneur "D.-D" represented by the head of Zha.D.B.... acting on the basis of a Certificate of State Registration, hereinafter referred to as the "Contractor", on the other hand, collectively referred to as the "Parties", and separately as indicated above or the "Party", have concluded this Agreement (hereinafter referred to as the "Agreement") on the following:
TERMS AND DEFINITIONS
Unless otherwise provided by this Agreement, the terms and definitions indicated in the text of the Agreement with a capital letter have the following interpretation:
Contract
this Agreement defines the mutual rights, duties and responsibilities of the Parties, as well as the documents that are an integral part of it (appendices, additional agreements, estimates, acts, etc.);
Works
a set of works on the supply, installation and commissioning of a structured cabling system (SCS), automatic fire alarm system (APS), video surveillance (VN) performed by the Contractor at the Facility, the list of which is set out in the Estimate (Appendix to this Agreement). Each stage of the Work is recorded in the relevant Annex, each of which is an integral part of this Agreement.;
Additional work
works not provided for by this Agreement and its annexes, the performance or necessity of which is closely related to the main Work under this Agreement.;
Hidden works
works concealed by subsequent works and structures, the quality and accuracy of which cannot be determined after subsequent Work and/or installation of structures and equipment;
An object
Non-residential premises located at: Republic of Kazakhstan, Bukhar Zhyrau Boulevard, 27/5, n.p. 547A and 547B.
Certificates of completed works
acts confirming the Contractor's performance of Work (intermediate stage of Work), drawn up by the Contractor in forms 2-B and 3-CS, in two copies on paper, confirming the volume of Work performed, their quality and compliance with the Design Estimates (POI), sealed by the Parties;
Acceptance
the procedure for accepting the entire amount of Work performed by the Contractor under the Contract, formalized by signing the relevant Act;
Certificates of inspection of hidden works
acceptance certificates of works performed by the Contractor, concealed by subsequent construction works and structures, the quality and accuracy of which cannot be determined after the subsequent construction work;
Responsible person of the Contractor
the Contractor's representative at the Facility, appointed by the latter to be responsible for the performance of Work under the Contract, including for the elimination of identified deficiencies and defects. The responsible person of the Customer is the Customer's representative responsible for monitoring the performance of Work under the Contract, for drawing up and signing Defective Acts necessary for the production of Work, and for providing the Contractor with PSAs;
The applicant
a natural or legal person who has discovered a defect/flaw in the Work, who has contacted the Customer, or third parties who subsequently notified the Customer with a request to eliminate the defect/flaw, and whose interests have suffered or may suffer as a result of the defect/flaw.;
Warranty case
the occurrence of defects and/or deficiencies in the Contractor's Work that occurred during the Warranty Period. If a Warranty Event is identified, the Warranty Period is extended in direct proportion to the period of time spent from the moment the Warranty Event occurred until the Contractor eliminated the Warranty Event.;
Defective act
an act confirming the presence of malfunctions (flaws), Defects and/or deficiencies in the Work performed by the Contractor under this Agreement (Warranty Case) caused by violations of the rules, regulations and technical specifications, as well as the terms of this Agreement. The mandatory conditions for the maintenance of a Defective Act include: the date of occurrence / detection of the Warranty Case, the period of elimination of the Warranty Case.;
Technical supervision (hereinafter referred to as Technical Supervision)
the person (or persons) authorized by the Customer to monitor and control the construction work at the Facility at a frequency specified by the project requirements and the level of complexity of the facility, who has the appropriate permits and certificates. The duties and functions of the Technical Supervision include: ensuring that the project is completed without exceeding the estimated cost of construction; ensuring the use of building materials specified in the construction project; ensuring that the construction project is completed on time and to a specified extent; ensuring high-quality construction; control over compliance of the performed works with the project, SNiP;
Notification
all notices, notices, communications and other documents sent to each other by the Parties in connection with their performance of this Agreement will be considered duly delivered if they are sent directly to the addresses specified in the details of this Agreement, as follows: to an e-mail address, via SMS and/or through the use of the Internetresources (information (in text, graphic, audio-visual or other form).
1. SUBJECT OF THE AGREEMENT
1.1. Under the terms of this Agreement, the Contractor undertakes to perform the Work, the list of which is established by the Annexes to this Agreement, which are its integral parts, at the Facility, and the Customer undertakes to accept the results of the Work, properly performed by the Contractor, and pay for their performance.
1.2. Taking into account the fact that the work will be carried out in stages, the start date for each stage of Work is the working day following the day of receipt of the advance payment and written notification from the Customer about the construction readiness of the facility for each stage of Work.
1.3. Deadlines for completion of work stages:
· SCS (Appendix No. 1 to this Agreement) – 21 (twenty-one) calendar days;
· ACS (Appendix No. 2 to this Agreement) – 7 (seven) calendar days;
· Video surveillance (Appendix No. 3 to this Agreement) – 21 (twenty-one) calendar days;
· Security system (Appendix No. 4 to this Agreement) – 5 (five) calendar days;
· APS (Appendix No. 5 to this Agreement) – 30 (thirty) calendar days;
· APT (Appendix No. 6 to this Agreement) – 30 (thirty) calendar days.
1.4. Completion of all stages of Work no later than August 15, 2024, while the installation of equipment must be completed no later than August 31, 2024.
1.5. Materials and equipment for the Contractor will be supplied by the Customer upon construction readiness.
2. ASSURANCES AND GUARANTEES
2.1. The Contractor guarantees the quality of the Work performed in accordance with Section 6 of this Agreement, as well as their compliance with the requirements of the legislation of the Republic of Kazakhstan. In any case, the quality of the Work must meet the requirements that are not lower than those that are usually imposed on such Work.
2.2. The Contractor guarantees the Customer the availability of qualified specialists to fulfill the obligations under this Agreement, as well as the necessary permits, certificates and licenses for the activities carried out by the Contractor under this Agreement.
3. COST OF WORK AND PAYMENT PROCEDURE
3.1. The total cost of the Work is 11,039,973 (Eleven million thirty-nine thousand nine hundred seventy-three) tenge 00 tiyn, including VAT, and includes all Contractor's expenses related to the performance of Work, payment of various fees, taxes, duties, purchase of construction equipment, hand tools necessary for the performance of Work, protective material, protective clothing, shoes, transportation costs, including transportation costs both inside and outside the Facility, the cost of instruction, and other payments, paid by the Contractor in connection with the performance of this Agreement, and in accordance with the legislation of the Republic of Kazakhstan.
3.2. The cost of Work under this Agreement cannot be changed due to changes in the expenses specified in clause 3.1 of this Agreement, including due to circumstances beyond the control of the Parties (business risk – loss), as well as as a result of any economic crisis, inflation and/or devaluation, changes in the exchange rate and other economic factors, except by written agreement of the Parties.
3.3. The Customer pays for the Work in the following order:
3.3.1. An advance payment for each stage of Work in the amount of 70% (seventy percent) of the Total Cost of the corresponding stage of Work is paid within 5 (Five) banking days from the date of receipt of the relevant invoice from the Contractor.;
3.3.2. Payment of the remaining part in the amount of 30% (thirty percent) of the Total Cost of the relevant stage of Work is made within 5 (Five) banking days from the date of signing by the Parties of the Act of Completed Works for each stage of Work and signed executive documentation from the final Customer. The final calculation for the final stage of Work (Stage No. 6) is made on the basis of the following documentation signed by the parties: the act of commissioning, the act of commissioning systems and equipment, executive documentation, operating instructions and the signing of the final Act of completed work (Stage No. 6).
3.4. Payment under this Agreement is made in tenge, by non-cash payment to the Contractor's current account specified in this Agreement.
3.5. The total cost (price) of the Work under this Agreement is fixed and cannot be increased except by written agreement of the Parties. The Contractor guarantees that the prices specified in the Annexes to this Agreement will not be exceeded under any circumstances during the term of this Agreement, except by written agreement of the Parties.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. The contractor has the right to:
4.1.1. Under the terms of this Agreement, require payments for the completed stage of Work;
4.1.2. To carry out the Work ahead of schedule, with the written consent of the Customer;
4.1.3. In case of production necessity, in agreement with the Customer, stay on the territory of the Facility after the deadline for the completion of Work.;
4.1.4. To exercise other rights provided for by the current legislation of the Republic of Kazakhstan.
4.2. The Contractor undertakes to:
4.2.1. Perform the Work in the amount and within the time limits stipulated by this Agreement;
4.2.2. Perform the Work in accordance with the requirements of the state (interstate) standards of the Republic of Kazakhstan, the documentation provided by the Customer defining the scope and content of the Work, and other requirements for the Work, as well as other instructions from the Customer, using materials that were not in use, with the provision of the necessary documents for these materials and quality certificates of the Republic of Kazakhstan;
4.2.3. Do not allow any deviations from the terms of this Agreement, which may worsen the quality of Work or increase the time required by this Agreement.;
4.2.4. To coordinate with the Customer the possibility of early completion and delivery of Work;
4.2.5. To provide the Customer, upon request, with full information on the progress of Work under this Agreement no later than 2 (two) business days from the date of receipt of the relevant notification by the Customer.;
4.2.6. Bear full responsibility and control over the means, methods, techniques, sequence and quality of Work;
4.2.7. To provide the Customer and third parties involved by him with the opportunity to monitor and supervise the progress and quality of Work performed under this Agreement, including compliance with the Customer's requirements, the requirements of this Agreement and its Annexes, SNIPS and state standards established in the Republic of Kazakhstan;
4.2.8. No later than 1 (one) calendar day from the date of signing this Agreement, notify the Customer in writing of the appointment of the Contractor's Responsible Person for the proper performance of the Work, indicating his contact information, including e-mail address;
4.2.9. No later than 5 (five) business days from the date of signing this Agreement, provide a power of attorney with the authority of the Contractor's Responsible Person to sign acts of completed works, defective acts and other documents performed under this Agreement, as well as with other powers listed in this Agreement. In case of failure to provide a power of attorney, the powers of the Contractor's representative by virtue of paragraph 1 of Article 163 of the Civil Code of the Republic of Kazakhstan will be considered evident from the situation.;
4.2.10. Hire employees who meet the qualification requirements established for this category of employees to key positions.;
4.2.11. Independently fulfill obligations to their employees stipulated by the labor legislation of the Republic of Kazakhstan, including payment of wages, as well as protect the Customer from any kind of dissatisfaction, demands, statements, rallies, actions, on the part of the Contractor's employees and third parties related to the Contractor;
4.2.12. Obtain from authorized bodies and independently, at their own expense, pay for all services related to the provision of necessary permits, permits, approvals and licenses related to the performance of Work at the Facility, including:
- for all types of Work performed that require a license or other permits from authorized bodies of the Republic of Kazakhstan;
- when performing customs formalities upon receipt of equipment, materials, construction equipment, and other goods necessary for the performance of Work under this Agreement;
4.2.13. To coordinate with the Customer the order of Work on the Object and to ensure its observance on the construction site;
4.2.14. Bear full responsibility to the Customer for the fulfillment or improper fulfillment of obligations under this Agreement by third parties hired/engaged by the Contractor to perform Work under this Agreement;
4.2.15. Independently insure the Contractor's personnel performing Work at the Facility, as well as equipment, products and structures, and other property used in the production of Work at the Facility;
4.2.16. In order to ensure the safe performance of Work under this Agreement, be fully responsible for the safety of work at the Facility, independently equip workplaces to perform Work in accordance with the requirements of state (interstate) regulatory documents, having agreed such actions with the Customer in advance.;
4.2.17. Keep the territory of the construction site of the Facility clean; clean and clean your workplace and approach points (stairs, corridors, passageways, etc.) daily before and after Work; be sure to sort the garbage as directed by the Customer; remove it from the construction site daily, independently, as well as at the request of the Customer Transfer all unnecessary building materials and all construction debris to specially designated and agreed places with the Customer;
4.2.18. To use the PSA received from the Customer only for the purposes stipulated in this Agreement, not to transfer the PSA to third parties and not to disclose the data contained therein without the prior written permission of the Customer.;
4.2.19. Properly, in accordance with the requirements established by state (interstate) regulatory documents, maintain and execute all necessary technical and executive documentation (including a Work Log, Acts of hidden work, etc.);
4.2.20. Notify the Customer immediately, no later than two (2) calendar days, if any:
• There is no need to carry out/carry out/perform additional work, which may lead to a violation of the deadline for the completion of Work and, accordingly, an increase in the price of this Agreement;
• possible adverse consequences for the Customer of following his instructions on how to perform the Work;
• other circumstances beyond the Contractor's control that endanger the quality and durability of the results of the Work performed under this Agreement, or make it impossible to complete it on time, or to reject the price of this Agreement;
4.2.21. Notify the Customer before the start of acceptance about the readiness of critical structures and hidden Works. The Contractor begins to perform subsequent Work only after the Customer accepts the hidden Work and draws up certificates of inspection of these Works. If the hidden works performed by the Contractor are closed by other contractors of the Customer without his knowledge before the acceptance of the hidden works by the Customer and the signing of the Acceptance Certificate of the hidden works, the opening and restoration of such works for the purposes of their acceptance is carried out at the expense of the Party that performed the work to close the results of the Contractor's hidden works. The Contractor is responsible for ensuring such opening and restoration to the Customer.
The Contractor undertakes to take measures within five days to eliminate the deficiencies indicated by the Customer during the acceptance of critical structures and hidden Works.;
4.2.22. To carry out an inspection of hidden works with the performance, if necessary, of measurements and tests provided for in regulatory documents and, based on the results of the survey, to draw up an Act of inspection of hidden works.;
4.2.23. Ensure the integrity of the Work performed and all materials, equipment, resources and other items related to the Work during the Contractor's working hours (during the Contractor's physical presence at the Facility).
4.2.24. During the period of Work at the Facility, ensure the rational use of the territory of the construction site, install temporary lighting, fencing and other works, and do not misuse driveways, passageways;
4.2.25. Ensure cleaning of the places where the Work was carried out, in accordance with clause 4.2.17. of this Agreement;
4.2.26. Notify the Customer no later than 3 (three) calendar days about the change of the legal (actual) address, phone numbers, bank details and other data essential for conducting settlements and correspondence, as well as about the change of the first head and / or the state re-registration. All actions performed using the old banking details and addresses, in case of late notification, will be considered executed properly. The requirement of this clause applies, among other things, to the period of the warranty period of operation of the Works performed under this Contract.;
4.2.27. On its own and at its own expense, ensure the safety and bear full responsibility for the destruction, damage, theft and overspending of materials, structures, equipment, and other property belonging to the Contractor and/or transferred to the latter by the Customer and/ or located at the Facility, as well as for the Facility and the results of the Work, until the Customer accepts the specified Work;
4.2.28. Within 5 (five) calendar days from the date of signing by the Parties of the final Act of completed works, remove construction machinery and equipment belonging to the Contractor, vehicles, machinery, tools, appliances, inventory, building materials, products and structures, temporary buildings and structures and other property, as well as construction debris and to clean the territory and the Facility where the Work was carried out;
4.2.29. To ensure the supply to the construction site of the necessary equipment, material and labor resources;
4.2.30. Be responsible for the improper performance of Work caused by defects in materials, unless he proves that the defects could not have been detected by him during the proper acceptance of these materials.;
4.2.31. To ensure the storage and storage of equipment and construction materials arriving at the construction site according to the rules established by the relevant standards, specifications, in accordance with the regulations of the Republic of Kazakhstan and in places established by the Customer;
4.2.32. Promptly eliminate deficiencies, defects in Works, equipment, and materials identified during Acceptance, as well as eliminate Warranty Cases during the Warranty Period provided for in this Agreement. No later than 24 (Twenty-four) hours or within the time period specified in the relevant Notification, from the moment the Notification is sent, send the Contractor's Responsible Person to the place of detection of the Warranty Case to fix the defect, malfunction and further draw up the Defective Act;
4.2.33. In the course of Work, the Contractor is obliged to draw up the executive documentation in accordance with the applicable regulatory requirements in the field of construction of the Republic of Kazakhstan. Simultaneously with the Acts of Work performed, the Contractor undertakes to provide the Customer with a complete set of executive documentation;
4.2.34. During the construction process, draw up executive documentation reflecting the actual execution of design decisions and the actual position of structures and their elements at all stages of production as certain stages of work are completed.
The executive documentation includes:
- acceptance certificates for hidden and special works;
- technical certificate for imported materials and technologies used in construction;
- general work log and special work logs filled in during the entire period of construction and installation work;
- certificates of inspection of hidden works;
- other documents reflecting the actual execution of design decisions;
4.2.35. To transfer to the Customer the Executive Documentation, executed in accordance with the established procedure, in 3 (three) copies on paper, as well as in 1 (one) copy in the electronic version in the DWG format. Until the executive documentation is provided to the Customer, the Work will not be considered completed and ready for Acceptance.;
4.2.36. When using scaffolding by the Contractor, both its own and provided by the Customer, bear full responsibility for their safety, installation, dismantling and use during Work, in accordance with all building regulations and rules for working with scaffolding, including for the purpose of observing safety regulations during Work. The Contractor is fully responsible (including to its own personnel, the Customer's personnel and third parties) in case of accidents related to non-compliance with this clause.;
4.2.37. In case of detection of violations and non-compliance by the Contractor with the standards and rules, eliminate any comments of the Customer within 2 (two) calendar days from the date of the Customer's submission of the relevant requirement.;
4.2.38. Ensure the presence of the first supervisor or his deputy, duly authorized to represent the Contractor's interests with the right to make any decisions necessary to fulfill the Contractor's obligations under this Agreement, when the Customer monitors the quality of Work performed and performed by the Contractor and the Contractor's fulfillment of obligations under this Agreement ("Quality Day"), and also at the weekly Industrial Relations meetings.;
4.2.39. On their own and at their own expense, during the performance of Work at the Facility, to ensure measures to identify and suppress the facts of the Contractor's employees in a state of alcoholic, narcotic and (or) substance abuse intoxication and to be responsible in case of detection of these facts by the Customer;
4.2.40. Perform the Work at your own risk, by your own efforts and means, and ensure the design capacity in accordance with the terms of this Agreement, the Customer's assignment and project documentation, including possible work not specifically mentioned in it, but necessary for the complete completion of Work at the Facility and subsequent normal operation;
4.2.41. Perform additional work only after their approval and approval by the Customer, as well as after signing an additional agreement to this Agreement specifying the terms of payment for these types of work. Otherwise, the work performed will be considered performed by the Contractor at his own expense (free of charge);
4.2.42. To compensate the damage in full:
- in case of damage by the Contractor to the property of the Customer and third parties;
- due to poorly performed work.
4.2.43. At the request of the Customer, reduce the prices for the work performed by him under this Agreement by the amount of the penalty charged;
4.2.44. No later than the tenth day of each month, submit to the accounting department of the Customer the completed reconciliation report as of the current date with the seal and signature of the authorized person of the Contractor;
4.2.45. in the case of Work performed using proprietary materials, comply with the norms of inventory values at the Facility, approved by the Customer.;
4.2.46. without the prior written consent of the Customer, do not disclose any information about the progress and content of the Work and / or any circumstances occurring on the site of the Facility or in connection with the construction of the Facility, including, but not limited to, production secrets (know-how), emergencies, design/executive documentation, location security posts, regardless of the method of disclosure;
4.2.47. do not use digital and recording devices at the Facility without the prior written consent of the Customer; do not make audio recordings, photo and video recordings of people, vehicles, machinery, equipment, the Facility, parts of the Facility, production meetings and any other events taking place on the territory of the construction site of the Facility;
4.2.48. The materials provided by the Customer should be used sparingly and prudently, without exceeding the established standards (SNiR-91, SNiP 4.02-91, 4.05-91 RK), the consumption of materials provided for by building codes and regulations. After completion of the Work, provide the Customer with a report on the use of materials, as well as refund the remainder, or, with the Customer's consent, reduce the cost of the Work, taking into account the cost of the unused material remaining with the Contractor;.
4.2.49. In the event of a delay in the schedule of work under this Agreement, within two (2) calendar days from the date of receipt of the written notification from the Customer, increase the workforce by the number of employees specified in the notification.
4.2.50. Provide the following documents to the Customer within 3 (three) business days from the date of signing this Agreement:
- a copy of the charter (if the Contractor is a legal entity);
- the decision of the sole participant/minutes of the general meeting of participants (shareholders) on the appointment of the first head (Chairman of the Management Board) (if the Contractor is a legal entity);
- power of attorney (if the authority to sign this Agreement is stipulated by a power of attorney);
- a copy of the identity card of the first head (Chairman of the Management Board) and the attorney (if the contract is signed by the attorney);
- a copy of the certificate of registration for value added tax (if the Contractor is registered for VAT);
- certificate of availability of a bank account;
- certificate of registration (re-registration) of a legal entity (if the Contractor is a legal entity);
- certificate from the bank(s) in which the Contractor is serviced on the absence of overdue debts for all types of obligations of the Contractor lasting more than 3 (three) months preceding the date of issue of the certificate;
- a certificate of absence (presence) of tax arrears, arrears on mandatory pension contributions and social contributions from the tax authority, in the prescribed form, certified by the signature of the head;
4.2.51. Within 3 (three) business days from the date of receipt of the relevant request from the Customer, unless another deadline is set by the Customer, provide him with a complete list of executive documentation, including: executive diagrams, drawings, and other documents requested by the Customer. A request for documents may be sent by the Customer in the manner specified in clause 12.4 of this Agreement.
4.2.52. Upon completion of the Work, no later than the deadline stipulated in clause 1.4. of this Agreement, to conduct for the Customer's staff (or other persons specified by him) instruction on the procedure and conditions for using the result of the Work, as well as safety instructions.
4.2.53. The Contractor undertakes to be present and assist in the delivery of the work to the final Customer.
4.3. The Customer has the right:
4.3.1. To require that the Work be performed efficiently, in full, and within the time limits specified in this Agreement.;
4.3.2. To require the Contractor to fulfill the obligations stipulated in this Agreement;
4.3.3. To suspend the Work performed by the Contractor by issuing and handing over to the latter an appropriate order to suspend work, in the event of a violation by the Contractor (Contractor's employees) at the Facility of the rules of safety and labor protection established by the relevant act of the Customer or an authorized state body in the field of labor protection, capable of causing or entailing occupational injury in the form of injury to health related to with sustained (over six months) or permanent disability, disability, or death of the Contractor's employee(s), The Customer or other third parties.
4.3.4. Monitor and verify the Contractor's compliance with its obligations under this Agreement, request and receive all necessary information and documents.
4.3.5. If the Contractor's employees violate the requirements of this Agreement, the Customer has the right to prevent late workers from entering the construction site.
4.4. The Customer is obliged to:
4.4.1. Notify the Contractor in writing of the appointment of the Responsible Person of the Customer no later than 1 (one) calendar day from the date of conclusion of this Agreement.;
4.4.2. Provide the Contractor with information defining the scope and content of the Work;
4.4.3. Notify the Contractor of the appointment of a technical supervision representative authorized to check the volume and quality of Work performed;
4.4.4. If, in the process of monitoring and supervising the performance of Work, the Contractor finds deviations from the terms of this Agreement, the instructions of the Customer and/ or the technical supervision of the Customer, which pose a threat to the deterioration of the quality of Work, or violations of the interim deadlines for the performance of Work established by this Agreement, notify the Contractor;
4.4.5. To review the Acts of completed Works provided by the Contractor within the time limits specified in clause 5.1 of this Agreement. If the Acts are not reviewed within the specified period, the Contractor has the right to suspend Work until receiving feedback on the submitted Acts.
4.4.6. To make timely and full payment for the Work performed in accordance with the procedure established by this Agreement, provided:
- the absence of any comments on the quality and timing of the Work;
- timely provision of Certificates of completed works within the time limits established by this Agreement.
4.4.7. Provide the Contractor with a closed room for storing equipment and tools.
4.4.8. In the event that, due to the fault of the Customer, the construction readiness of the Facility is not ensured and there is a delay in the schedule of work under this Agreement, the Customer, within 1 (one) business day from the date of receipt of the written notification from the Contractor, proportionally increases the deadline for the execution of work by reply letter.
5. ACCEPTANCE OF WORKS
5.1. Upon completion of the relevant stage of Work, the Contractor submits interim Certificates of completed Work to the Customer. The customer is obliged to review and sign interim Acts within 5 (five) business days, calculated from the date of receipt of the Acts of completed works, and the final Act of completed works – within 10 (Ten) business days to review and sign after signing the Act of Completed works at the final customer.
5.2. When signing the Act of Completed Works and accepting any stage or the entire result of the Work, in case of minor defects and deficiencies in the Work performed, the Customer undertakes to sign the Acts of Completed Works with comments indicating the time frame for the elimination of defects and deficiencies.
5.3. After the elimination of the Customer's remark, the Parties sign an Additional act on the elimination of the remark.
5.4. The contractor is obliged to eliminate the defects and deficiencies specified in the act by his own efforts and at his own expense, using his products and building materials that comply with state standards and PSAs. In this case, the Contractor is responsible for violating the general deadline for the completion of Work due to the elimination of defects and deficiencies, on the terms provided for in this Agreement.
5.5. If the Customer justifiably refuses to accept any stage or the entire result of the Work due to defects and deficiencies found in the Work performed and/or concealed during subsequent work, the Parties shall draw up a Defect Report within two (2) calendar days, indicating the time frame for eliminating defects and deficiencies.
5.6. In case the Contractor refuses to sign the Defective Act, the Customer draws up an Act of Refusal to sign, which he signs unilaterally.
5.7. If the Contractor does not eliminate the comments recorded in the Defective Act on time and in full, the Customer has the right to eliminate the defects and deficiencies by his own efforts and means or by involving third parties, with all costs incurred to eliminate such defects and deficiencies at the Contractor's expense. In addition, the Contractor reimburses the Customer for the cost of materials used in the production of Works in which defects and deficiencies are allowed.
In this case, if the Contractor voluntarily fails to pay the costs/losses within 5 (five) banking days from the date of receipt of the claim from the Customer, with the provision of documents confirming the amount of expenses/losses, the Customer has the right to unilaterally deduct such costs/losses from the remaining amount owed to the Contractor. By signing this Agreement, the Contractor confirms his consent to the appropriate deduction of such amounts, no additional confirmation from the Contractor is required.
5.8. In the event of a dispute over the quality of the Work, the costs of conducting an independent expert examination of such quality and responsibility for violating the total duration of the Work are borne by the guilty Party, whose guilt is proved by the examination.
5.9. The signing of interim Certificates of completed works for Works in which defects and deficiencies have been identified is carried out within 3 (three) calendar days from the date of the Contractor's elimination of all defects and deficiencies.
5.10. The final acceptance, including the Work performed ahead of schedule, is carried out by the Customer after the completion of the entire scope of Work under this Agreement, confirmed by signed Acts of Completed Work, within 10 (ten) working days, calculated from the date of receipt by the Customer of the originals of all Acts.
5.11. The Contractor bears the risk of accidental loss or damage to the results of certain types of Work that occurred due to his fault, due to deficiencies in the production process that could not be identified by the Customer with the usual method of acceptance.
6. WORK QUALITY ASSURANCE
6.1. The warranty period for the Work performed is calculated from the moment of acceptance by the Customer of the total amount of Work performed by the Contractor, and is 24 (twenty-four) months for installation work.
6.2. During the warranty period, the results of the Work must be suitable for use in accordance with the purposes of use/operation of the Facility. If a Warranty Event is detected, the Warranty Period is extended in direct proportion to the period of time elapsed from the moment the Warranty Event occurred until the Contractor eliminated the Warranty Event.
6.3. If a Warranty Event is detected in the Work performed by the Contractor during the Warranty Period, the Customer sends a Notification to the Contractor about the need to send the Contractor's Responsible Person to participate in the preparation of the Defective Act no later than 24 (Twenty-four) hours from the date of Notification, or within the time period specified in the relevant Notification. In case of urgent situations (critical/serious problem), the Customer immediately notifies the Contractor verbally and/or otherwise. The Contractor undertakes to send the Contractor's Responsible Person to the place of detection of the Warranty Case in order to fix the defect, malfunction and further draw up the Defective Act.
6.3.1. A defective report is drawn up by a Commission composed of representatives of the Customer and the Contractor./The responsible person of the Contractor (if present). If necessary, other persons may be included in the Commission.
6.3.2. The deadline for drawing up a Defective Report by the Commission, regardless of the level of criticality of the Warranty Case, is 1 (one) day from the end of the Commission's work on drawing up a Defective Report.
6.3.3. In case of non-arrival of the Contractor's Responsible Person in accordance with the notification, as well as in cases of urgent situations, the Defective Act is drawn up by the commission, without the presence of the Contractor's Responsible Person, and this circumstance does not invalidate the Defective Act and does not release the Contractor from liability provided for in this Agreement.
6.3.4. If a dispute arises between the Customer and the Contractor regarding the latter's fault in the occurrence of a Warranty Event, or on other grounds on which this person may be relieved of responsibility for eliminating the Warranty Event, expressed in the Contractor's refusal to sign a Defective Act, the latter is obliged to prove the circumstances referred to by the conclusion of an appropriate expert examination, initiated and conducted on demand and at his expense. In this case, the Contractor is obliged to notify the Customer of the appointment of the examination within 3 (three) business days, agree on the place of the examination, as well as the subject to whom the examination will be conducted, and provide the results of the examination to the Customer within 5 (five) business days from the date of notification of the latter of the appointment of the examination. In cases where the Warranty Case is related to an equipment malfunction, an opinion confirming the malfunction must be issued by an authorized, certified service center of the equipment manufacturer.
6.4. The Parties have agreed that in case of Warranty, the Customer has the right to:
1) elimination of the Warranty case by the Contractor, by the efforts and at the expense of the latter;
2) involvement of third parties to eliminate the Warranty Case, with subsequent reimbursement of the Customer's costs/losses at the expense of the Contractor;
3) elimination of the Warranty case on its own, followed by reimbursement of costs / losses of the Customer at the expense of the Contractor.
6.5. When the Warranty Case is eliminated by the Contractor, by the forces and at the expense of the latter, the Customer sends a notification for the elimination of the Warranty Case, with the attachment of a Defective Act drawn up on the terms of this Agreement, while the Contractor is obliged, within the time limits specified in the Defective Act, free of charge, using its products and building materials that comply with state standards, to eliminate the Warranty the case.
6.5.1. If a dispute arises between the Customer and the Contractor regarding deficiencies in the work performed to eliminate the Warranty Case, expressed in the refusal of one of the Parties to sign the Certificate./The acceptance of such works must be carried out by the Customer only on the basis of an expert opinion conducted at the request and expense of the Customer. In this case, the Customer is obliged to notify the Contractor of the appointment of an expert examination within 3 (three) days. In case of failure to provide a notification within the specified period, or failure to provide an expert opinion confirming the proper fulfillment by the Contractor of obligations to eliminate the Warranty Case, the work is considered incomplete in part or in full, as indicated in the Defect Certificate.
If the conducted examination establishes the Contractor's guilt, the latter is obliged to pay for the examination conducted by the Customer within 5 (five) banking days by transferring funds to the Customer's current account specified in this Agreement, or the Customer has the right to deduct the cost of the examination from the remaining amount owed to the Contractor unilaterally.
7. THE RISK OF ACCIDENTAL LOSS OF WORK
7.1. The right of ownership and the risk of accidental loss and/or damage to the results of the Work are transferred to the Customer from the moment the Parties accept the completed Work.
7.2. In case of destruction or damage to the results of the Work or the Object before Acceptance of the Work performed, the Customer is exempt from paying the cost of the Work performed under this Agreement, and in cases of payment, both partial and full, by the Customer to the Contractor for the Work, the latter reimburses the amount equal to the destroyed or damaged Work, or free of charge eliminates deficiencies in the Work caused by the destruction or damage, except in cases where such destruction and/or damage occurred solely through the fault of the Customer.
7.3. In case of delay in the transfer or acceptance of the entire result of the Work, the risk of accidental death and/or damage is borne by the Party who delayed the acceptance or transfer of the entire result of the Work provided for in this Agreement.
8. LIABILITY OF THE PARTIES
8.1. Improper performance or non-performance by one of the Parties of obligations under this Agreement entails liability in accordance with the current legislation of the Republic of Kazakhstan.
8.2. The Contractor undertakes to be responsible, protect, guarantee compensation for any kind of damage and to protect the Customer from any obligations, claims, litigation, damages, losses, costs and expenses of any kind arising in connection with or as a result of:
● injury, illness, or death of any Contractor's employee and/or loss or damage to property of any Contractor's employee, as well as the Contractor itself;
● causing loss or damage to the property of any employee of the Customer caused by the intentional violation or gross negligence of any employee of the Contractor, as well as the Contractor himself;
● injuries, illnesses or deaths of third parties, employees of the Contractor caused directly or indirectly by the performance of Work;
● loss or damage to the property of the Customer and/or a third party caused directly or indirectly by the Contractor's performance of Work at the Facility;
● admission to work of the Contractor's employees who do not meet the requirements established by the legislation of the Republic of Kazakhstan, including qualifications, as well as those who have not passed a medical examination, safety instruction in accordance with the established procedure and who do not have the appropriate work permit.;
● violations by the Contractor of the norms of the legislation of the Republic of Kazakhstan, including tax, which entailed bringing the Customer to any responsibility and/or causing the latter any kind of losses.
8.2.1. The Contractor shall be liable to the Customer for the actions and omissions of its employees, the Contractor, employees and agents of the Contractor, as well as other persons engaged by the Contractor under this Agreement.
8.3. Failure by the Contractor to fulfill its obligations to immediately notify the Customer of the circumstances specified in clause 4.2.21 of this Agreement shall entail the loss by the Contractor of the right to refer to these circumstances when the Customer submits relevant claims to it.
8.4. In case of violation of the term of Work, both the initial and / or final, as well as individual stages of Work, as well as in case of poor-quality and untimely elimination of defects and deficiencies in the Work specified in the Defective Act, the Customer has the right to recover from the Contractor a penalty in the amount of 2% (two percent) of the cost (price) of the Work of the corresponding stage For each day of delay, at the discretion of the Customer, the amount of the penalty may be deducted from the amount payable to the Contractor under this Agreement.
8.5. In cases of violation of the deadlines for the elimination of comments, as well as in case of violation of deadlines and / or quality requirements for technical and executive documentation, the Customer has the right to collect from the Contractor a penalty in the amount of 0.05% of the total cost (price) of the Work, for each day of delay in the elimination of comments until they are completely eliminated, but not more than 15% (fifteen percent) of the total cost (price) of the Work by deducting from the amounts payable in accordance with the Acts of Completed Work signed by the Parties.
8.6. In cases of unjustified violation by the Customer of the deadlines for signing interim acts within 5 (five) business days, calculated from the date of receipt of the interim Acts of completed works, and the final Act of completed works – within 10 (Ten) business days, the Contractor has the right to recover from the Customer a penalty in the amount of 2% of the cost of the relevant stage of Work, for each day of delay, from the total cost (price) of the Work by invoicing.
8.7. In case of non-fulfillment or improper fulfillment of an obligation, or in case of late fulfillment of a condition of this agreement, the Parties, in accordance with Chapter 18 of the Civil Code of the Republic of Kazakhstan, have the right to demand payment of a penalty determined by law, regardless of whether the obligation to pay it is stipulated by the agreement of the parties.
8.8. In cases of appointment of an expert examination, the Contractor shall bear the costs of its payment. In cases where the examination has established the absence of deficiencies or a causal relationship between the deficiencies and the Contractor's actions, the cost of the examination is reimbursed to the latter by the Customer. If the examination is appointed by mutual agreement of the Parties, the costs of its conduct are divided equally between them.
8.9. In case of violation by the Customer of the payment terms established by this Agreement for more than 30 (thirty) business days, the Contractor has the right to demand from the Customer the payment of a penalty in the amount of 0.01% of the late amount paid, but not more than 10% (ten percent) of the amount owed under this Agreement.
8.10. If as a result of actions (inaction) If a fire has broken out at the Customer's Facility, the Contractor will reimburse the Customer for the losses caused by the fire in full. At the same time, the Parties agreed that the causes of the fire can be established on the basis of a conclusion by the fire inspectorate, and damages can be recovered only on the basis of such a conclusion.
8.11. Payment of the penalty does not release the guilty Party from fulfilling the obligations assumed under this Agreement.
8.12. If, as a result of the Contractor's failure to fulfill or improper fulfillment of its obligations under this Agreement, any sanctions/fines, claims for damages from authorized government agencies, legal entities and individuals are applied to the Customer, the Contractor undertakes to reimburse the Customer for these fines and losses (damage) within 30 days. (thirty) calendar days from the date of the Customer's submission of the relevant claim, and the Customer has the right to withhold such amounts from the amounts payable to the Contractor.
8.13. The Contractor agrees that in case of delay in the submission by the Contractor of Acts of Completed Works on time, including, but not limited to, accounting documents, invoices, invoices and other documents subject to mandatory submission, the Customer has the right to recover from the Contractor a penalty in the amount of 1% (one) percent of the Total the cost of Work performed during the reporting period for each calendar day of delay.
8.14. If the material used by the Contractor in the course of Work is found to be inconsistent with the Customer's requirements, design estimates, SNiP, state (interstate) standards (GOST), technical specifications, quality, quantity, completeness and/or assortment after acceptance of the Work performed and/or during the use of materials supplied by the Contractor, the Customer has the right to return, at the Contractor's expense, all material that does not comply with the terms of this Agreement, and the Contractor is obliged to reimburse the Customer for the cost of this material, taking into account all taxes, payments, of this material or require replacement of the material with a material conforming to the requirements of this paragraph within 2 (two) calendar days from the date of the Customer's submission of the relevant requirement. Also, if the replacement of nonconforming material and/or equipment increases the time required to perform work under this Agreement, the Customer has the right to require the Contractor to pay a penalty in the amount of 1% of the cost of the nonconforming material for each calendar day of delay in reimbursing the nonconforming material, but not more than 50% of the cost of the nonconforming material, or to require the Contractor to pay penalties, in the amount of 1% of the cost of the non-replaced material, for each calendar day of delay in replacing the non-conforming material.
8.15. The direct damage and the penalty shall be paid by the Contractor within 10 (ten) calendar days from the date of notification from the Customer of the payment of the penalty. The Contractor agrees that, at the discretion of the Customer, the amount of direct damages and penalties may be deducted by the Customer from the amounts payable to the Contractor for the Work performed under this Agreement.
8.16. The Contractor is not entitled, without the prior written consent of the Customer, directly or indirectly, to conclude contracts or involve its employees in the performance of work for the main customer for whom work is performed under this Agreement, including during the period of validity of this Agreement, as well as for 3 (Three) years after the expiration of its validity.
9. FORCE MAJEURE CIRCUMSTANCES
9.1. The Parties shall not be liable for non-fulfillment or improper fulfillment of obligations under this Agreement, as well as for damage caused as a result of force majeure circumstances (hereinafter referred to as - force majeure) caused by floods, fires, earthquakes, epidemics, military conflicts, military coups, terrorist acts, civil unrest, regulations, orders or other administrative interference by the Government, or any regulations, administrative or other restrictions affecting the fulfillment of obligations by the Parties under this Agreement, or regulations administrative or other government agencies, documents of other organizations that restrict the disposal of money in the payer's bank accounts, or other circumstances beyond the reasonable control of the Parties. The deadlines for fulfilling obligations under this Agreement are proportionately postponed for the duration of these circumstances, if they significantly affect the fulfillment of the entire Agreement or that part of it that is subject to fulfillment after the occurrence of force majeure circumstances.
9.2. Both Parties must notify each other in writing within three (3) days of the beginning and expected end date of the circumstances of force majeure that prevent the fulfillment of obligations under this Agreement. The party referring to force majeure circumstances is obliged to provide for their confirmation a document issued by the relevant authorized body of the Republic of Kazakhstan or the National Chamber of Entrepreneurs of Kazakhstan.
9.3. The Customer extends the term of the Work if there are force majeure circumstances or deviations proposed by him require additional time for the Work, as well as if hidden Defects requiring additional labor costs have been identified during the Work. In this case, the Contractor must notify the Customer in writing of the occurrence of the events specified in this paragraph, no later than 3 (three) calendar days from the end of force majeure.
9.4. If natural disasters, military actions or any other force majeure event beyond the control of the Customer or Contractor disrupts the fulfillment of the terms of this Agreement, the Contractor shall ensure the conservation of the Facility and stop Work within 1 (one) calendar day after receiving the suspension notification. The Customer pays the Contractor for the entire amount of Work performed before the date of the shutdown of the Facility and for work related to the conservation of the Facility.
9.5. The Contractor is obliged to ensure the protection of completed Works and all materials, equipment, resources and other positions related to Employees from all types of damage, damage, destruction related to climatic precipitation, floods, frosts, fire, theft and other causes. All costs incurred by the Contractor in connection with the above are not subject to additional compensation from the Customer.
9.6. If security is established at the facility by the Customer, the Customer is obliged to ensure the protection of completed Works and all materials, equipment, resources and other positions related to Employees from all types of damage, damage, destruction related to climatic precipitation, floods, frosts, fire, theft and other causes. All costs incurred by the Contractor in connection with the above are subject to additional reimbursement by the Customer.
9.7. The Parties are not responsible for any damage or any damage to the Contractor's Work for reasons caused by force majeure.
10. TERM OF THE AGREEMENT
10.1. This Agreement comes into force from the date of its signing by authorized representatives of the Parties and is valid until the Parties fully fulfill their obligations under this Agreement.
10.2. The Parties may terminate this Agreement unilaterally and out of court prematurely if one Party commits a material violation of the terms of this Agreement, which deprives it of the fundamental conditions provided for in this Agreement. In this case, the Party initiating the termination of this Agreement shall send a notification to the other Party indicating the reason for termination of this Agreement, as well as the effective date of termination of this Agreement.
10.3. A significant violation of the terms of this Agreement includes the following:
✔ If the Contractor delays the deadlines for each stage of Work by more than 5 (five) business days;
✔ The Contractor suspends the Work, provided that the shutdown has not been agreed with the Customer.;
✔ The Contractor does not eliminate the defects and/or deficiencies specified by the Customer within the period specified in accordance with this Agreement.,
✔ The customer, or The contractor goes bankrupt or is liquidated for any reason, except for its reorganization or consolidation.;
✔ The Contractor ignores the rules of work, instructions and provisions specified in the project documentation and/or in this Contract.;
✔ In the course of Work, the Contractor violates the requirements of the legislation of the Republic of Kazakhstan, state (interstate) standards.;
✔ The Customer does not prepare the construction readiness for the Contractor's work within 7 (seven) calendar days;
✔ The Customer, within the time limits established by this Agreement, does not sign the interim Acts of completed works and the final Act of completed works.;
✔ The Customer, within the time limits established by this Agreement, does not make payments according to the Acts of Completed Works signed by the Parties.
10.4. If this Agreement is terminated, the Contractor must immediately stop Work and submit an Act of Completed Work on the day of suspension of Work and an invoice for its payment.
10.5. In case of termination of this Agreement, the Customer shall pay the Contractor the remaining amounts for the work actually performed, minus the advances and costs of the Customer related to the termination of this Agreement.
10.6. The Parties may at any time unilaterally terminate this Agreement out of court due to the inexpediency of its further implementation by sending a corresponding written notification to the Party. The notification shall indicate the reason for the termination of this Agreement, specify the amount of cancelled Work under this Agreement, as well as the effective date of termination of this Agreement.
10.7. If this Agreement is terminated due to the circumstances specified in clause 10.6. of this Agreement, the Contractor has the right to demand payment only for the actual Work performed under this Agreement, as of the date of termination of this Agreement.
10.8. All materials and equipment located at the Facility, as well as temporary structures and completed construction works, are considered the property of the Customer and are at his disposal until the resolution of financial proceedings related to the termination of this Agreement, if this Agreement is terminated due to a significant violation of the terms of this Agreement by the Parties.
10.9. If this Agreement is terminated, the Contractor must immediately stop Work and ensure that the completed Work is transferred to the Customer in accordance with the procedure established by the Customer and agreed upon by the Parties.
10.11. In case of termination of this Agreement, the Contractor undertakes to refund the amount of the advance paid by the Customer for a certain stage of Work, minus the cost of the Work and materials accepted by the Customer according to the Certificates of Completed work and invoices.
11. DISPUTE RESOLUTION PROCEDURE
11.1. All disputes and disagreements are resolved in accordance with the current legislation of the Republic of Kazakhstan, through negotiations and the preparation of appropriate protocols, or by sending written communications indicating a specific violation of contractual obligations. A written notification is sent within 3 (three) calendar days from the date of detection of the relevant violation. The party receiving the letter is obliged to eliminate the relevant violation or provide a reasoned response within 10 (Ten) calendar days from the date of its receipt.
11.2. If it is impossible to resolve disputes specified in clause 11.1. of this Agreement through negotiations, they are subject to resolution in the courts of the city of Almaty.
11.3. In everything else that is not provided for by this Agreement, the Parties are guided by the current legislation of the Republic of Kazakhstan.
12. OTHER CONDITIONS
12.1. The Contractor is obliged to provide the Customer with a documentary confirmation of the availability/validity of the license for the right to perform Work within 1 (one) business day from the moment of signing this Agreement, otherwise this Agreement is considered not to have entered into force.
12.2. By signing this Agreement, the Contractor agrees that the Customer has the right to transfer/assign its rights under this Agreement to third parties, including transferring the debt under this Agreement to a third party, while the date of transfer / assignment of rights and transfer of debt under this Agreement is the date of conclusion of the relevant transaction.
The Contractor has the right to transfer/assign its rights and obligations under this Agreement to third parties.
12.3. The Contractor agrees to consider the text of this Agreement, as well as the entire amount of information transmitted and/or transmitted to the Customer at the conclusion of this Agreement and during the performance of obligations arising from this Agreement, confidential information. Confidential information means any information disclosed by the Parties at the conclusion of this Agreement and during the performance of obligations arising from this Agreement, in cases where the information is disclosed /transmitted: in writing, electronically or in any other form, after the conclusion of this Agreement, as a result of discussions between the Parties on issues related to this Agreement, the Parties or their authorized representatives, employees (Hereinafter referred to as Confidential Information). The Contractor is not entitled to disclose such information to anyone, except in cases where this is provided for by the current legislation of the Republic of Kazakhstan, or by written agreement of the Customer.
The Contractor undertakes obligations and agrees to the following conditions::
12.3.1. to maintain complete secrecy and confidentiality, as well as not to disclose or allow disclosure, not to transfer or give access to a third party to part or all of the Confidential Information;
12.3.2. to use Confidential Information exclusively within the framework of the assumed obligations specified in this Agreement, and not to use, not to allow use for other obligations;
12.3.3. handle Confidential Information with the same degree of care that the Contractor exercises with respect to his own Confidential Information in order to prevent its unauthorized use, dissemination or publication.;
12.3.4. to maintain confidentiality with respect to this Agreement, the subject matter and obligations of the Parties specified in this Agreement, and negotiations between the Parties that were conducted prior to the conclusion of this Agreement, are currently underway and will be conducted in the future under this Agreement, including the very fact of negotiations;
12.3.5. to disclose all or part of Confidential Information only to those of its representatives and/or employees who need it for the proper performance of the obligations specified in this Agreement, and only on condition that the Contractor's employees have been informed in writing by the Contractor of the confidential nature of the information and that they (representatives and employees) are the subject of obligations arising from this Agreement;
12.3.6. in case of involvement of third parties for the proper fulfillment of the obligations specified in this Agreement, by notifying the Customer of the disclosure of Confidential Information to such third parties, sign confidentiality agreements similar to the terms of this clause of the Agreement, the terms of which may not contradict the terms of this Agreement, and inform the Customer in writing about the conclusion of such confidentiality agreements between the Contractor and by third parties.
12.3.7. The Contractor is responsible to the Customer for the intentional and unintentional disclosure, as well as unauthorized use of Confidential Information, both by the Contractor himself and by his representatives and/or employees.
12.3.8. In case of violation by the Contractor of any of the obligations of this Agreement, the Contractor shall reimburse the Customer for the losses incurred by the latter.
12.3.9. The Contractor's obligation to keep Confidential Information is valid for 3 (three) years. years from the date of signing by the Parties to this Agreement.
12.4. The Contractor agrees that notices, notices, communications and other letters sent to him by the Customer by e-mail to the address specified in section 13 of this Agreement, to the Contractor's Responsible Person or to other Contractor's e-mail addresses known to the Customer, will be considered duly sent. In this case, duplication of such notifications, notices, messages and other letters on paper is not required.
12.5. The content of the text of this Agreement fully corresponds to the actual will of the Parties.
12.6. If any of the provisions of this Agreement is or subsequently becomes invalid, the validity of its remaining provisions will not be lost.
12.7. In everything else that is not provided for by this Agreement, the parties are guided by the legislation of the Republic of Kazakhstan.
13. DETAILS AND SIGNATURES OF THE PARTIES
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