GOVERNMENT OF MALAYSIA

STANDARD FORM OF CONTRACT FOR

FACILITIES MANAGEMENT & MAINTENANCE

PWD Facilities Management & Maintenance Form (2016)

Hak Cipta Terpelihara Kerajaan Malaysia

 This form has been approved by Attorney General’s Chamber

BETWEEN

GOVERNMENT OF MALAYSIA

AND

[…………………………………………………………………..]
 TABLE OF CONTENTS

LIST OF APPENDICES ................................................................................................ v

1. DEFINITIONS AND INTERPRETATION ............................................................ 2
1.1 Definitions .............................................................................................. 2
1.2 Interpretation.......................................................................................... 6
1.3 Notices, Consents, Approvals, etc. ...................................................... 8
1.4 Time Period ............................................................................................ 8
1.5 Resolution of ambiguities, discrepancies and/ or inconsistencies... 9
2. CONTRACT PERIOD ......................................................................................... 9
3. SCOPE OF FMM SERVICES ........................................................................... 11
4. CONTRACT SUM............................................................................................. 11
5. TERMS OF PAYMENT ..................................................................................... 11
6. PERFORMANCE BOND .................................................................................. 13
7. OBLIGATIONS OF THE CONTRACTOR ........................................................ 13
8. REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR ............ 15
8.1 Contractor’s representations and warranties ................................... 15
8.2 Continuing representations ................................................................ 16
9. FACILITIES MANAGEMENT PLAN ................................................................ 17
10. INSPECTION OF SITE ..................................................................................... 18
11. PERFORMANCE REQUIREMENT .................................................................. 19
11.1 Level of performance........................................................................... 19
11.2 Submission of reports ......................................................................... 19
11.3 Ascertained Performance Deduction ................................................. 19
12. FACILITY MANAGER ...................................................................................... 20
13. EMPLOYMENT OF WORKMEN ...................................................................... 20
14. COMPLIANCE WITH THE EMPLOYMENT ACT 1955, ETC. .......................... 22
14.1 Employment legislation....................................................................... 22
14.2 Employees Provident Fund ................................................................. 22
15. INDEMNITY ...................................................................................................... 22
16. WORKMEN'S COMPENSATION ACT 1952 [ACT 273] .................................. 24
17. CONTRACTOR TO PAY ANY OTHER STATUTORY CONTRIBUTIONS ...... 24
18. INSURANCE FOR FMM SERVICES................................................................ 24
18.1 Taking of Insurance ............................................................................. 24
18.2 Payment of Insurance in the Event of Any Loss and / or Damage .. 25
18.3 Cancellation of Insurance Policy ........................................................ 26
18.4 Default in Insuring ............................................................................... 26
19. INSURANCE AGAINST PERSONAL INJURIES AND DAMAGE TO
PROPERTY ...................................................................................................... 26
19.1 Taking of Insurance ............................................................................. 26
19.2 Production of Policies ......................................................................... 27

i
 19.3 Default in Insuring ............................................................................... 27
19.4 Cancellation of Insurance ................................................................... 28
19.5 Loss or Damage Occasioned by Insured Risk .................................. 28
20. RESTRICTION AND PROCEDURE ON USE OF IMPORTED MATERIALS,
GOODS ............................................................................................................ 28
21. PROVISIONS OF EQUIPMENT ....................................................................... 29
22. MANAGEMENT INFORMATION SYSTEM ...................................................... 31
22.1 Contractor’s Obligation ....................................................................... 31
22.2 Asset Inventory and Data Management ............................................. 31
23. FACILITY SUPERINTENDING OFFICER ........................................................ 32
23.1 Appointment of FSO ............................................................................ 32
23.2 FSO’s Instructions ............................................................................... 32
23.3 FSO’s instructions on safety and security aspects of the Site ........ 33
23.4 FSO's notifications, etc., in writing .................................................... 33
23.5 FSO's duties ......................................................................................... 34
24. FSO’S REPRESENTATIVE.............................................................................. 34
25. GOVERNMENT’S RIGHT TO RENOVATE THE SITE ..................................... 35
26. INTELLECTUAL PROPERTY RIGHTS ........................................................... 35
26.1 Ownership of Intellectual Property Rights ........................................ 35
26.2 License to use Government’s Intellectual Property.......................... 36
26.3 Modification of Government’s Intellectual Property ......................... 36
26.4 Government’s Intellectual Property to remain confidential ............. 36
26.5 Integrity of Government’s Intellectual Property ................................ 36
26.6 Indemnity against infringement of Intellectual Property Right ........ 37
27. USAGE OF GOVERNMENT EMBLEM ............................................................ 37
28. LICENSE .......................................................................................................... 38
29. VALUATION AND VARIATION ....................................................................... 38
30. SCHEDULE OF PRICE .................................................................................... 40
30.1 Basis of Contract Sum ........................................................................ 40
30.2 Provisional Quantities ......................................................................... 41
30.3 Provisional Sums ................................................................................. 42
31. GOVERNMENT’S RIGHT TO SET OFF .......................................................... 42
32. FINAL ACCOUNT AND FINAL CERTIFICATE ............................................... 43
32.1 Application for Final Account ............................................................. 43
32.2 Final Certificate .................................................................................... 43
32.3 Contractor's unfulfilled obligations ................................................... 45
33. INVESTIGATION AND AUDIT BY THE GOVERNMENT ................................ 45
33.1 Government's right to inspect, investigate and audit ...................... 45
33.2 Contractor’s role during inspection, investigation and auditing ..... 46
34. GOVERNMENT’S REPRESENTATIVE ........................................................... 46
35. SUSPENSION OF FMM SERVICES ................................................................ 46
35.1 Suspension and Resumption of FMM Services ................................ 46
35.2 Consequences of Mutual Termination pursuant to Clause 35.1.12 . 48

ii
36. TERMINATION BY THE GOVERNMENT ........................................................ 50
36.1 Default by the Contractor .................................................................... 50
36.2 General Default of the Contractor ...................................................... 54
36.3 Consequences of Termination ........................................................... 55
37. TERMINATION BY THE CONTRACTOR ........................................................ 55
37.1 Event of default by the Government .................................................. 56
37.2 Consequences of Termination ........................................................... 56
38. CERTIFICATE OF TERMINATION COST ....................................................... 57
39. TERMINATION ON CORRUPTION, UNLAWFUL OR ILLEGAL ACTIVITIES 59
39.1 Termination .......................................................................................... 59
39.2 Consequences of Termination ........................................................... 59
40. TERMINATION ON NATIONAL INTEREST .................................................... 59
40.1 Termination .......................................................................................... 59
40.2 Consequences of Termination ........................................................... 60
41. FORCE MAJEURE ........................................................................................... 61
41.1 Events ................................................................................................... 61
41.2 Notification of Force Majeure ............................................................. 62
41.3 Determination of Force Majeure ......................................................... 63
41.4 Termination by Force Majeure ............................................................ 63
41.5 Consequences of Termination due to Event of Force Majeure ....... 63
41.6 Delay ..................................................................................................... 63
41.7 Restoration ........................................................................................... 64
41.8 Insurance .............................................................................................. 64
42. RESOLUTION OF DISPUTE ............................................................................ 64
42.1 Dispute Resolution Committee ........................................................... 64
42.2 Independent Expert ............................................................................. 65
42.3 Determination of Procedures .............................................................. 65
43. ARBITRATION ................................................................................................. 66
43.1 Reference to Arbitration ...................................................................... 66
43.2 Venue .................................................................................................... 66
43.3 Continuing Obligations ....................................................................... 66
44. STEP IN RIGHTS OF THE GOVERNMENT .................................................... 66
45. SUB-CONTRACTING AND ASSIGNMENT ..................................................... 68
45.1 Sub-Contracting and assignment ...................................................... 68
45.2 Determination of Sub-Contract ........................................................... 68
45.3 Assignment of benefits ....................................................................... 68
45.4 No privity of this Contract ................................................................... 69
45.5 Removal of Contractor’s sub-contractors ......................................... 69
46. CONFIDENTIALITY ......................................................................................... 69
46.1 Non-disclosure ..................................................................................... 69
46.2 Non-disclosure by Third Parties ......................................................... 70
46.3 Survival ................................................................................................. 70

iii
47. SURVIVING RIGHTS ....................................................................................... 70
48. COMPLIANCE WITH LAWS ............................................................................ 71
49. STAMP DUTY, ETC. ........................................................................................ 71
50. AMENDMENT .................................................................................................. 71
51. NOTICES .......................................................................................................... 71
52. TIME OF THE ESSENCE ................................................................................. 72
53. APPLICABLE LAWS ....................................................................................... 72
54. WAIVERS ......................................................................................................... 73
55. FURTHER ASSURANCES .............................................................................. 73
56. RELATIONSHIP OF THE PARTIES ................................................................ 73
57. SEVERABILITY................................................................................................ 73
58. TAXES .............................................................................................................. 74
59. APPENDICES .................................................................................................. 74
60. ENTIRE CONTRACT ....................................................................................... 74
61. SUCCESSORS BOUND .................................................................................. 74
62. CUSTODY OF DOCUMENT............................................................................. 74

iv
LIST OF APPENDICES

APPENDIX 1 FORM OF TENDER

APPENDIX 2 LETTER OF ACCEPTANCE OF TENDER

APPENDIX 3 SUMMARY OF TENDER

APPENDIX 4 SCHEDULE OF PRICE

APPENDIX 5 APPENDIX TO THE CONDITIONS OF CONTRACT

APPENDIX 6 TREASURY’S INSTRUCTIONS

APPENDIX 7 GOVERNMENT’S REQUIREMENT

APPENDIX 7A FMM TECHNICAL SPECIFICATIONS

APPENDIX 7B PERFORMANCE REQUIREMENT

APPENDIX 8 SITE INFORMATION AND ASSET INVENTORIES

APPENDIX 9 FORM OF GUARANTEE FOR PERFORMANCE BOND

APPENDIX 10 SCOPE OF FMM SERVICES

v
 FACILITIES MANAGEMENT & MAINTENANCE SERVICES (FMM)

FMM CONTRACT NO: _____________________________of 20______________

EXPENDITURE to be met from Head ______________Year of_______________

Sub-head____________________

THIS CONTRACT is made on the ________ day ____________ of 20__________

BETWEEN

THE GOVERNMENT OF MALAYSIA as represented by_______________________

and having its address at
__________________________________________________________ (hereinafter
referred to as the "Government") of the one part;

AND

_____________________________ (Company No.: ), a company

incorporated in Malaysia under the Companies Act 1965 [Act 125] and having its
registered office at ______________________________________________________

_______________________________________________________________________
(hereinafter referred to as the “Contractor”) of the other part;

The Government and the Contractor shall hereinafter individually be referred to as the
“Party” and collectively as the “Parties”.

WHEREAS—

A. The Government is desirous of obtaining the FMM Services (hereinafter defined)

from the Contractor for the building and / or infrastructure known as
____________________________________________________________.

1
B. The Contractor has agreed to carry out the FMM Services and has the relevant
knowledge, skill, experience and expertise necessary to undertake the
performance of such FMM Services subject to the terms and conditions of this
Contract.

NOW IT IS HEREBY AGREED AS FOLLOWS:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Contract, unless the context otherwise requires, the following words and
phrases shall have the following meanings:

“Authority” means any governmental authority or entity, any quasi-

government and/or other statutory authorities, departments,
agencies or bodies and/or any other privatised corporation
whose consent or approval is necessary and/or required for
the implementation of the FMM Services;

"Commencement means the date of commencement of the FMM Services as

Date" provided in Clause 2.1;

“Contract” means this Contract and the appendices attached thereto;

“Contract means the documents forming the tender and acceptance

Documents” thereof including–
(a) this Contract;

(b) Form of Tender as specified in Appendix 1;

(c) Letter of Acceptance of Tender as specified in

Appendix 2;

2
 (d) Summary of Tender as specified in Appendix 3;

(e) Schedule of Price as specified in Appendix 4;

(f) Appendix to the Conditions of Contract as specified in

Appendix 5;

(g) Treasury’s Instructions as specified in Appendix 6;

(h) Government Requirements as specified in Appendix

7 comprising the following:

(i) FMM Technical Specifications as specified in

Appendix 7A; and

(ii) Performance Requirement as specified in

Appendix 7B;

(i) Site Information and Asset Inventories as specified in

Appendix 8;

(j) Performance Bond as specified in Appendix 9;

(k) Scope of FMM Services as specified in Appendix 10;

(l) …; and

(m) …,1
and all of these documents shall be complementary to one
another;

1To add or delete where relevant.

3
 “Contract Expiry means the date of expiry of the Contract Period as set out in
Date” Clause 2.1;

“Contract Period” means the period referred to in Clause 2.1;

"Contract Sum” means the sum as stipulated in Clause 4;

“Existing means a management information system already in

Management existence as at the Commencement Date to store and
Information process information in all aspect of management, operation
System” and maintenance activities;

“Facilities means the management, administration, supervision,

Management and operation and maintenance of the Site to be carried out by
Maintenance the Contractor in accordance with this Contract and as
Services” or specified in the FMM Technical Specifications in Appendix
“FMM Services” 7A;

“Facility Manager” means the person appointed by the Contractor pursuant to

Clause 12;

“Facility means2……………………………………………………….and
Superintending his successors in office as appointed by the Government
Officer” or “FSO” under Clause 23 to act on behalf of the Government for
matters stipulated in this Contract;

“FSO’s means any person appointed by the FSO pursuant to

Representative” Clause 24 to perform any of the duties and exercise any of
the rights of the FSO;

2 State the official designation of the officer responsible.

4
“Government’s means all data and information, designs, plans, design
Intellectual calculations, drawings, records, Management Information
Property” System and all other relevant documents provided to the
Contractor pursuant to this Contract;

“Government’s means any person delegated by the Government to perform

Representative” any or all of the duties of the Government as specified in
Clause 34;

"Letter of means the Letter of Acceptance of Tender dated

Acceptance of ……………………………..... issued by the Government to
Tender" the Contractor as stipulated in the Letter of Acceptance of
Tender in Appendix 2;

“Management means a system developed by the Contractor to store and

Information process information on all aspects of management, operation
System” and maintenance activities as specified in the FMM
Technical Specifications in Appendix 7A;

"On-Cost means any cost and expense reasonably incurred by the

Charges” Government as specified in Appendix 5;

“Performance means the standard of performance of the FMM Services

Requirement” required to be performed by the Contractor as specified in
Appendix 7B;

“Provisional means a sum for FMM Services which cannot be defined or

Sum” detailed at the time the tender documents are issued but
shall be subject to be expended in accordance with the
procedure set out in Clause 30.3;

“Site” means the land area and other places on, above, under, in
or through which the FMM Services are to be carried out

5
 including building(s), facilities and the area covered as
specified in the Site Information and Asset Inventories as
specified in Appendix 8;

“Site Office” means the Contractor’s operation office and store located
within or adjacent to the Site;

“Working Day” means a day other than—

(a) [Saturday and/or Sunday] [Friday and/or Saturday];3

and

(b) any other day declared by the Federal or State

Government as a public holiday in the Federal
Territory of Putrajaya or in the state in which the FMM
Services are performed.

1.2 Interpretation

In this Contract, except to the extent that the context otherwise requires—

(a) words denoting the singular number shall include the plural and vice versa;

(b) words denoting any gender shall include all genders;

(c) words denoting persons shall include a body of persons, corporate or

unincorporated;

(d) any reference to clauses, sub-clauses, appendices, annexures, schedules,

paragraphs and sub-paragraphs shall be a reference to the clauses, sub-
clauses, appendices, annexures, schedules, paragraphs and sub-
paragraphs of this Contract;

3 To delete where necessary.

6
(e) reference to any party referred to in this Contract shall include its
successors or permitted assigns;

(f) reference to any document shall include references to such document as

amended, novated, supplemented, varied or replaced from time to time;

(g) reference to any legislation or to any provisions of any legislation shall

include subsidiary legislation and any amendment, modification or re-
enactment of that legislation and subsidiary legislation, and statutory
instruments issued under such legislation or provision of any statutory
modification or re-enactment of, or any legislative provision substituted for
such legislation and statutory instruments issued under such legislative
provision;

(h) headings are for convenience only and shall not affect the interpretation and
construction hereof;

(i) the appendices, annexures, and schedules shall be taken, read and
construed as an essential and integral part of this Contract. In the event of
any conflict or inconsistency between the terms of this Contract and the
terms of the appendices, annexures and schedules, the terms of this
Contract shall prevail to the extent of such conflict or inconsistency;

(j) any reference to an “amendment” includes any variation, deletion or

addition and “amend” or “amended” shall be construed accordingly;

(k) any reference to “indebtedness” includes any obligation (whether present or

future, actual or contingent, secured or unsecured, as principal or surety or
otherwise) for the payment or repayment of money;

(l) any reference to “law” include any constitution, decree, judgment,

legislation, order, ordinance, regulations, rules, statute, treaty, by-law or
other legislative measure applicable in Malaysia;

7
 (m) any reference to a “day”, “week”, “month” or “year” is to that day, week,
month or year in accordance with the Gregorian calendar;

(n) if any period of time is specified from a given day or a day of a given act or
event, it is to be calculated exclusive of that day and if any such specified
period of time or a day of a specified given act or event falls on a day which
is not a Working Day, then such period of a specified time or a specified day
of a given act or event is deemed to be on the next Working Day; and

(o) any reference to “pay” or its cognate expressions includes payments made
in cash or by way of bank draft (drawn on a bank licensed to carry on
banking business under the provisions of the Financial Services Act 2013
[Act 758] and Islamic Financial Services Act 2013 [Act 759] or effected
through inter-bank transfers to the account of the payee giving the payee
immediate access to available funds.

1.3 Notices, Consents, Approvals, etc.

Wherever provision is made in this Contract for the giving or issuing of any notice,
consent, approval, certificate or determination by any person, unless otherwise
specified such notice, consent, approval, certificate or determination shall be made
in writing and the words “notify”, “approval”, “certify” or “determine” shall be
construed accordingly.

1.4 Time Period

Wherever there shall appear any reference to a time within which or a date by
which an act should be done or agreement reached or consent given, such
reference shall be deemed to be read as if including the expression “or any period
or date, as the case may be, agreed between the Parties from time to time”.

8
1.5 Resolution of ambiguities, discrepancies and/ or inconsistencies

1.5.1 If the Contractor shall find any discrepancy in or divergence between any
two or more of the Contract Documents including a discrepancy or
divergence between parts of any one of them, it shall immediately give to
the FSO a written notice specifying and explaining the discrepancy or
divergence. The FSO shall explain and resolve the discrepancy and
thereupon issue to the Contractor appropriate instructions.

1.5.2 Any increase in the cost of performing the FMM Services as a result of the
resolution of any ambiguity, discrepancy and/or inconsistency in the
Contract Documents which has been decided by the FSO shall be borne
by the Contractor. Any reduction in the cost of performing the FMM
Services as a result of the resolution of any ambiguity, discrepancy and/or
inconsistency in this Contract as decided by the FSO shall be deducted
accordingly from the Contract Sum.

2. CONTRACT PERIOD

2.1 Contract Period

This Contract shall be for a period of …. years (hereinafter referred to as the

“Contract Period”) commencing from …………….[insert date of commencement]
(hereinafter referred to as the “Commencement Date”) and shall expire
on………………[insert date of expiry] (hereinafter referred to as the “Contract
Expiry Date”) unless terminated in accordance with the terms and conditions
provided in this Contract.

2.2 Consequences of Expiry of Contract Period

Upon expiry of the Contract Period –

(a) The Contractor shall –

(i) cease to carry out all FMM Services;

9
 (ii) at no cost to the Government, vacate the Site and remove all the
Contractor's equipment within fourteen (14) days from the Contract
Expiry Date, failing which the Government may (but without being
responsible for any loss or damage) remove and sell any such
equipment, holding the proceeds, less all costs incurred, to the credit
of the Contractor, employees, agents and sub-Contractors from the
Site;

(iii) co-operate with the Government to ensure a smooth transition of the

FMM Services to the Government or any third party engaged by the
Government;

(iv) return to the Government any machinery, equipment, appliance,

material, article, process, tool, record, document, manual, data
and/or software application in the Contractor's possession that
belong to the Government;

(v) hand over to the Government the Existing Management Information

System or the Management Information System together with its data
in relation to the FMM Services under this Contract in good and
working condition; and

(vi) at no cost to the Government, hand over to the Government all plans,
designs, specifications and other relevant documents relating to the
FMM Services.

(b) the Government shall pay to the Contractor all monies due and payable as
at the Contract Expiry Date PROVIDED THAT the Government shall be
entitled to deduct any sum due to the Government from the Contractor
pursuant to the provisions of this Contract.

10
3. SCOPE OF FMM SERVICES

3.1 The Contractor shall carry out the FMM Services as described in the scope of
FMM Services in Appendix 10 according to the Performance Requirement in
Appendix 7B and shall comply with the terms and conditions of this Contract.

3.2 Notwithstanding Clause 3.1, the FSO may, from time to time, request the
Contractor to provide services falling outside the scope of the FMM Services
PROVIDED THAT such request are made in the manner provided in Clause 29.

4. CONTRACT SUM

4.1 Subject to the Contractor’s compliance with the terms and conditions of this
Contract, the Government shall pay to the Contractor in consideration for the FMM
Services a sum of Ringgit:
………………………………………………………………………………………………
(RM…............................) only (hereinafter referred to as the “Contract Sum”).

4.2 The Contract Sum shall not be subjected to any increase save for such increase
as approved by the Government in accordance with the provisions of this
Contract.

5. TERMS OF PAYMENT

5.1 The Parties agree that the payment for the FMM Services shall be on a monthly
basis and shall be based on the FMM Services done and properly performed and
executed by the Contractor.

5.2 For the purpose of payment in Clause 5.1, the Contractor shall submit to the FSO,
at such times and in such form as the FSO may prescribe, a written application for
the FMM Services monthly payments. The application for payment shall be
accompanied by documents evidencing the following:

(a) the value of FMM Services properly executed for that particular month
based on the Schedule of Price as specified in Appendix 4;

11
 (b) the amount of any valuation of variations as instructed by the FSO under
Clause 29.1 (if any);

(c) the amount in regards to the expenditure of Provisional Sum executed or

expended;

(d) the reports required by the FSO pursuant to Clause 11.2 and particularly as
described in Appendix 7A, which shall include the amount of ascertained
performance deduction in accordance with the calculation specified in the
Performance Requirement in Appendix 7B (if any); and

(e) all relevant documents including Site measurements, working diagrams,

delivery orders, relevant invoices, as-built drawings, shop drawings relevant
tests and environmental impact assessment of the works or other relevant
documents as the FSO may require, to substantiate the Contractor's written
application for the FMM Services monthly payments.

5.3 The Contractor shall submit the reports as specified in the FMM Technical
Specifications in Appendix 7A for the purpose of FMM Services monthly
payments. In the event the Contractor fails to submit such reports, the FSO shall
make the valuation of the FMM Services based on the available documents
submitted by the Contractor for the purpose of issuance of an interim payment
certificate.

5.4 The FSO shall within fourteen (14) days from the date of receipt of the application
for the FMM Services monthly payment, inspect, evaluate and verify the
application for payment of the FMM Services carried out by the Contractor. Upon
completion of such inspection, valuation and verification, the Government shall
issue an interim payment certificate stating the amount due to the Contractor from
the Government for carrying out the FMM Services for that particular month.

5.5 The amount stated as due in the interim payment certificate pursuant to Clause
5.4 shall be the total value of the FMM Services done and properly executed by
the Contractor for that particular month.

12
5.6 The Government shall pay the Contractor the amount certified as due to the
Contractor in the said interim payment certificate within thirty (30) days of the
issuance of such interim payment certificate,

6. PERFORMANCE BOND

6.1 The Contractor shall, prior to the Commencement Date, provide to the
Government an irrevocable Performance Bond issued or to be issued in favour of
the Government by an approved licensed bank or financial institution incorporated
in Malaysia for a sum equivalent to five percent (5%) of the Contract Sum
amounting to Ringgit ……………………………………………………………………....
(RM ….…………….....) to secure the due performance of the Contractor’s
obligations under this Contract.

6.2 The Performance Bond shall remain valid and effective until twelve (12) months
after the expiry of the Contract Period.

6.3 Notwithstanding anything contained in this Contract, the Government shall be

entitled at any time to forfeit the Performance Bond, wholly or partially, if the
Contractor fails to perform or fulfil its obligations under this Contract and such
failure is not remedied in accordance with this Contract.

6.4 If a payment is made to the Government pursuant to any claim under the
Performance Bond, the Contractor shall issue to the Government further security
in the form of additional performance bond or bonds for an amount not less than
the amount so paid to the Government on or prior to the date of such payment so
that the total sum of the Performance Bond shall be maintained at all times at the
value specified in Clause 6.1.

7. OBLIGATIONS OF THE CONTRACTOR

During the Contract Period, the Contractor shall—

13
(a) carry out the FMM Services in accordance with the terms and conditions of
this Contract and particularly as described in the Scope of FMM Services in
Appendix 10;

(b) carry out its obligations as specified in the facilities management plan
(hereinafter referred to as “FMP”);

(c) perform the FMM Services in a proper manner and in accordance with the
best management and industry practices and to the best advantage of the
Government in order to protect the interest of the Government;

(d) at all times perform its obligations under this Contract in such manner as
will always safeguard and protect the Government’s interest and take all
necessary and proper steps to prevent abuse of the Site and in accordance
with the provisions of this Contract;

(e) take all appropriate measures in carrying out the FMM Services in
accordance with the best industry practice;

(f) perform the FMM Services and discharge its obligations according to this
Contract by exercising professional judgment and good practice, with
requisite skill, care and diligence;

(g) provide the standard operating procedures in the form as agreed by the
FSO for reporting and co-ordination purposes;

(h) at all times perform the FMM Services in such manner and take all
necessary and proper steps to prevent abuse or uneconomical use of
facilities, if any, made available by the Government to the Contractor;

(i) immediately inform the Government in writing of the occurrence of any

factor or event, which is likely to affect the FMM Services but such
notification shall not be construed as a discharge of any of the Contractor’s
obligations under this Contract;

14
 (j) in the event of any emergency, accident or failure due to any cause in
connection with the FMM Services, immediately report the emergency,
accident or failure to the FSO and submit a report with recommendations for
remedial action in accordance with the terms and conditions of this Contract
and to the approval of the FSO;

(k) provide and maintain adequate numbers of workmen who are efficient,
suitably qualified and experienced in accordance with the minimum
requirement as specified in the FMM Technical Specifications in Appendix
7A to perform the FMM Services;

(l) provide and maintain at its own cost and expense all equipment, machinery,
appliances, materials, articles, processes and tools necessary for the
proper and effective performance of the FMM Services; and

(m) instruct and supervise its workmen in carrying out the FMM Services.

8. REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR

8.1 Contractor’s representations and warranties

The Contractor hereby represents and warrants to the Government that as at the
Commencement Date —

(a) it is a company validly existing under the laws of Malaysia;

(b) it has the corporate power to enter into and perform its obligations under
this Contract and to carry out the transactions and to carry on its business
as contemplated by this Contract;

(c) it has taken all necessary corporate actions to authorize the entry into and
performance of this Contract and to carry out the transactions contemplated
by this Contract;

15
 (d) this Contract constitutes a legal, valid and binding obligation of the
Contractor and is enforceable in accordance with its terms and conditions;

(e) neither the execution nor performance by the Contractor of this Contract nor
any transactions contemplated by this Contract will violate in any respect,
any provision of—
(i) its Memorandum and Articles of Association; or

(ii) any other document or agreement which is binding upon it and its
assets;

(f) no litigation, arbitration, tax claim, winding up, dispute or administrative

proceeding is subsisting, pending or to its knowledge threatened, which is
likely to have an adverse effect upon it or its ability to perform its financial or
other obligations under this Contract;

(g) no corruption, unlawful or illegal activities or practices have been used to

secure this Contract;

(h) it has the necessary financial capability to undertake and complete the FMM
Services; and

(i) it has the technical capability to carry out the FMM Services and fulfil all its
obligations in and arising out of this Contract,

and the Contractor acknowledges that the Government has entered into this
Contract in reliance on its representations and warranties as aforesaid.

8.2 Continuing representations

The Contractor further represents and warrants to the Government that the
representations and warranties set out in Clause 8.1 shall remain true and correct
in all respects throughout the Contract Period save and except Clause 8.1(f).

16
9. FACILITIES MANAGEMENT PLAN

9.1 Within fourteen (14) days from the Commencement Date, the Contractor shall
submit its FMP in the form and manner as specified in the FMM Technical
Specifications in Appendix 7A to the FSO or FSO Representative.

9.2 The FSO or FSO’s Representative shall within [fourteen (14) / twenty-eight (28)]4
days after the receipt of the FMP—

(a) reject the FMP in writing;

(b) accept the FMP in writing with or without modification; and/or

(c) request the Contractor to supply further information to clarify or substantiate

the programme specified in the FMP or to satisfy the FSO or FSO’s
Representative as to its reasonableness having regard to the Contractor’s
obligations under the Contract,

PROVIDED THAT if none of the actions in Clause 9.2(a), 9.2(b), and/or 9.2(c) is
taken within the period of fourteen (14) days from the date of receipt of the FMP,
the FSO or FSO’s Representative shall be deemed to have accepted the FMP as
submitted.

9.3 The Contractor shall, upon receipt from the FSO or FSO’s Representative for any
request under Clause 9.2(b) and/or 9.2(c), submit a modified FMP or provide
further information as requested for FSO or FSO’s Representative’s approval. If no
action is taken by the FSO or FSO’s Representative within fourteen (14) days from
the date of receipt of such further information or modified FMP from the
Contractor, the FSO or FSO’s Representative shall be deemed to have accepted
the modified FMP.

9.4 For the avoidance of doubt, the FMP accepted by the Government pursuant to
Clause 9.2 shall form part of this Contract.

4
Delete where necessary.

17
9.5 The Contractor shall carry out its obligations as stipulated in the accepted FMP
during the transition period(s) within the time period as specified therein.

9.6 For the purpose of this clause:

“transition period(s)” means the period of transition between the Contractor

and the new contractor to execute the activity
specified in the transition management.

9.7 Notwithstanding any other rights of the Government under this Contract, if at any
time it should appear to the FSO or the FSO’s Representative that the
performance of FMM Services by the Contractor does not conform to the FMP or
the FSO or the FSO’s Representative is of the view that the FMP requires to be
updated, the Contractor shall submit, at the request of the FSO or the FSO’s
Representative a revised FMP showing the modifications to the accepted FMP.
The revised FMP as accepted by the FSO or the FSO’s Representative shall take
precedence over the previously accepted FMP from the date it is accepted by the
FSO or the FSO’s Representative.

10. INSPECTION OF SITE

10.1 The Contractor shall be deemed to have inspected and examined the Site and its
surrounding and to have satisfied itself before submitting the tender as to the
following:

(a) the condition of the Site;

(b) the facilities and equipment at the Site;

(c) the means of communication with and access to the Site;

(d) the accommodation he may require;

(e) the existing Management Information System at the Site (if any); and

18
 (f) in general to have obtained for himself all necessary information as to risks,
contingencies and all circumstances influencing and affecting the tender.

10.2 Any information or document forwarded by the Government to the Contractor shall
not relieve the Contractor of its obligations under the provisions of this clause.

11. PERFORMANCE REQUIREMENT

11.1 Level of performance

The Contractor shall perform the FMM Services according to the terms and
conditions of this Contract and comply with the standards specified by the
Government in the Performance Requirement in Appendix 7B.

11.2 Submission of reports

11.2.1 The Contractor shall prepare and submit the reports as specified in the
FMM Technical Specifications in Appendix 7A in accordance with the time
period specified therein for purposes of FSO’s records and/or information
and valuation of the Contractor’s performance which shall also form the
basis of the calculation for ascertained performance deduction under
Clause 11.3.

11.2.2 The Contractor shall submit such reports under Clause 11.2.1 for the FMM
Services monthly payments which the Contractor shall be entitled to
pursuant to Clause 5. The Parties agree that in the event the Contractor
fails to submit such reports, the FSO shall make the valuation of the FMM
Services based on available documents submitted to him for the purpose
of issuance of interim payment certificate.

11.3 Ascertained Performance Deduction

The Parties agree that the Government shall have the right to deduct a sum
calculated in accordance with the formula specified in the Performance
Requirement in Appendix 7B in the form of ascertained performance deduction in

19
 the event that the performance of the FMM Services fails to meet the key
performance indicator as specified in the Performance Requirement in Appendix
7B. The Contractor hereby agrees that the Government shall have the right to
deduct the ascertained performance deduction from any monies due or becoming
due to the Contractor under this Contract and failing which such deductions shall
be recovered from the Performance Bond or as a debt due from the Contractor.

12. FACILITY MANAGER

12.1 The Contractor shall appoint a Facility Manager to manage the FMM Services on
Site and to liaise with the FSO whenever necessary. The Facility Manager shall
have the following criteria:

(a) competent, efficient, suitably qualified and experienced in the relevant

industry;

(b) of good character; and

(c) able to communicate and receive instructions in Bahasa Malaysia and

English.

12.2 The Contractor shall ensure that the Facility Manager appointed pursuant to
Clause 12.1 shall be at the Site at all times. If the Government is of the view that
the Facility Manager appointed by the Contractor does not fulfil the criteria as
specified in Clause 12.1, upon written notification from the Government, the
Contractor shall provide an immediate replacement of the Facility Manager and all
wages and other expenses in connection with the employment of such
replacement shall be borne by the Contractor. Any directions, explanations or
instructions given to such Facility Manager by the FSO shall be deemed to have
been given to the Contractor.

13. EMPLOYMENT OF WORKMEN

13.1 The Contractor shall provide workmen of skilled, qualified, experienced and
competent in the industry in carrying out the FMM Services.

20
13.2 The Contractor shall employ only Malaysian citizens as its workmen and they shall
possess the basic qualifications and relevant experience as specified in the FMM
Technical Specifications in Appendix 7A.

13.3 Notwithstanding Clause 13.2, if any particular trade or skill is required to perform
the FMM Services and the Contractor is able to demonstrate to the satisfaction of
the FSO that Malaysian citizens are not available, the Contractor may employ non-
Malaysian citizens subject to the approval of the Government.

13.4 The Contractor shall on the Commencement Date, furnish to the Authority, the
relevant document or particulars in respect of the workmen employed by it for the
performance of the FMM Services in accordance with the requirements under the
Employment Act 1955 [Act 265], Employment (Restriction) Act 1968 [Act 353],
National Wages Consultative Council Act 2011 [Act 732] and other relevant laws
or any subsequent modification or re-enactment thereof.

13.5 The Contractor shall maintain on the Site at all times throughout the Contract
Period an up-to-date register containing particulars of all workmen employed by
the Contractor.

13.6 The Contractor shall ensure that if any post shall fall vacant, it shall provide
qualified workmen that will be deployed immediately to fill the said post subject to
the provisions of Clause 13.1, 13.2 and 13.3.

13.7 If the FSO is of the opinion that the Contractor’s workmen has not performed its
obligations in accordance with the terms and conditions of this Contract, the FSO
may instruct the Contractor to redeploy the Contractor’s equipment and its
workmen at the Contractor’s own cost and expense. The Contractor shall
accordingly execute the instructions of the FSO within seven (7) days from the
date of receiving the FSO's instructions. Any instruction of redeployment by the
FSO shall not relieve the Contractor of its obligations under this Contract.

13.8 If the FSO is of the view that any workmen is acting to the detriment of the
Government or is not skilled, qualified, experienced and competent in carrying out

21
 the FMM Services or any of the Contractor’s obligations under this Contract, the
FSO may instruct the Contractor to replace such workmen. The Contractor shall
comply with the instructions of the FSO within seven (7) days from the date of
receiving the FSO's instructions. All costs and expenses incurred for the
employment and replacement of the workmen under this clause shall be borne by
the Contractor.

14. COMPLIANCE WITH THE EMPLOYMENT ACT 1955, ETC.

14.1 Employment legislation

In employing the workmen to carry out the FMM Services, the Contractor shall
comply and shall cause its sub-contractors (including ‘labour only’ sub-contractors)
to comply with all the requirements of the Employment Act 1955 [Act 265],
Employment (Restriction) Act 1968 [Act 353], Employees Provident Fund Act 1991
[Act 452], the Industrial Relations Act 1967 [Act 177], the Occupational Safety and
Health Act 1994 [Act 514], the National Wages Consultative Council Act 2011 [Act
732] and any other law relating to the employment of workmen PROVIDED THAT
the Contractor shall not be entitled to claim for any additional cost and expense
whatsoever in respect of its compliance with this clause.

14.2 Employees Provident Fund

14.2.1 The Contractor shall ensure that all contributions under the Employees
Provident Fund Act 1991 [Act 452] or other applicable laws in respect of its
workmen are paid until the expiry of the Contract Period.

14.2.2 The Contract Sum shall not be increased to account for any contribution
under the Employees Provident Fund Act 1991 [Act 452] in respect of its
workmen in carrying out the FMM Services.

15. INDEMNITY

15.1 The Contractor shall perform all of its obligations under this Contract at its own risk
and releases, to the fullest extent permitted by law, the Government and its

22
 servants from all claims and demands of every kind resulting from any accident,
damage, injury or death arising from the carrying out the FMM Services except
where such accident, damage, injury or death is caused or contributed to by any
act or omission or negligence of the Government or its servants. The Contractor
expressly agrees that in the absence of any such act, omission or negligence as
aforesaid the Government shall have no responsibility or liability whatsoever in
relation to such accident, damage, injury or death;

15.2 The Contractor shall indemnify and keep the Government fully indemnified from
and against—

(i) all actions, suits, claims or demands, proceedings, losses, damages,

compensation, costs (including legal cost), charges and expenses
whatsoever to which the Government shall or may be or become liable in
respect of or arising from –

(a) the negligent use, misuse or abuse by the Contractor, workmen, or

the Contractor’s personnel, servants, agents or employees appointed
by the Contractor;

(b) any loss or damage to property or injury of whatsoever nature or kind

and howsoever or wherever sustained or caused or contributed to by
carrying out the FMM Services to any person and not caused by the
negligence or wilful act, default or omission of the Government or its
servants; or

(c) any loss, damage or injury from any cause whatsoever to property or
persons affected by the FMM Services to the extent to which the
same is occasioned or contributed to by the act, omission, neglect,
breach or default of the Contractor, workmen or the Contractor’s
personnel, servants, agents or employees; and

(ii) any actions, suits, claims, proceedings, losses, damages, compensation,

cost (including legal cost), charges and expenses made by any sub-

23
 contractor(s) appointed by the Contractor as a result of the Contractor’s
own act, omission, breach and/or default for the implementation of this
Contract.

15.3 The obligations of the Contractor under this clause shall continue after the expiry
or earlier termination of this Contract in respect of any act, deed, matter or thing
happening before such expiration or termination of this Contract.

16. WORKMEN'S COMPENSATION ACT 1952 [ACT 273]

Notwithstanding the Contractor’s obligations to indemnify the Government under

Clause 15, the Contractor shall effect and maintain throughout the Contract Period
Workmen’s Compensation Insurance or any other applicable insurance for its
workmen required under the laws of Malaysia at its own cost and expense.

17. CONTRACTOR TO PAY ANY OTHER STATUTORY CONTRIBUTIONS

The Contractor shall be required to pay any other statutory contributions not
expressly mentioned in this Contract in respect of workmen or the performance of
the FMM Services. The Contract Sum shall not be varied by reason of any such
statutory contributions or increase in such statutory contributions.

18. INSURANCE FOR FMM SERVICES

18.1 Taking of Insurance

18.1.1 The Contractor shall take out and maintain, in the joint names of the
Government and the Contractor, insure against loss and damage by fire,
lightning, explosion, storm tempest, flood, ground subsidence, bursting or
overflowing of water tanks, apparatus or pipes, aircraft and other aerial
devices or articles dropped therefrom, riot and civil commotion, burglary,
vandalism, professional indemnity, all work executed and all unfixed
materials and goods, delivered to, placed on or adjacent to the FMM
Services and intended therefore (but excluding temporary buildings,

24
 machinery, tools and equipment owned or hired by the Contractor or any
sub-Contractor) to the full value thereof (plus any amount which may be
specifically stated in the Appendix to the Conditions of Contract in
Appendix 5 or elsewhere in the Contract Documents) and shall keep the
FMM Services, materials and goods so insured until the completion of the
whole of the FMM Services. Such insurance policy or policies shall provide
expressly for payment in the first place to the Government of any
insurance monies due under the policy or policies.

18.1.2 The said insurance with or without an excess clause as specified in the
Appendix to the Conditions of Contract in Appendix 5 shall be effected
with an insurance company approved by the FSO and it shall be the duty
of the Contractor to produce to the FSO the said policy or policies and the
receipts in respect of the premium paid. Where an excess clause is
specified in the Appendix to the Conditions of Contract in Appendix 5, the
Contractor shall bear the amount of such excess.

18.2 Payment of Insurance in the Event of Any Loss and / or Damage

Upon the occurrence of any loss and/or damage to the FMM Services and/or
unfixed materials and goods prior to the Contract Expiry Date, the Contractor
shall, notwithstanding that settlement of any insurance claim has not been
completed, with due diligence, restore, replace or repair the same, remove and
dispose of any debris and proceed with the carrying out and completion of the
FMM Services. All monies if and when received from the insurance under Clause
18 shall be paid to the Government and then (less any such amounts as are
specifically required in the Appendix to the Conditions of Contract in Appendix 5 or
elsewhere in the Contract Documents) be released to the Contractor by
instalments on the certificate for payment issued by the FSO, calculated as from
the date of receipt of the money in proportion to the extent of the restoration,
replacement or repair and the removal and disposal of debris previously carried
out by the Contractor. The Contractor shall not be entitled to any payment in
respect of the restoration, replacement or repair and the removal and disposal of
debris other than the money received under the said insurance.

25
18.3 Cancellation of Insurance Policy

The Contractor shall ensure that any insurance policy affected hereto shall only be
cancelled by the insurer after the expiry of thirty (30) days from the date of receipt
by the Government of a written notice from the insurer advising of such impending
cancellation.

18.4 Default in Insuring

If the Contractor fails to effect or renew such insurances as are required to be

effected and maintained under this Contract, the Government or the FSO on its
behalf may effect or renew such insurance and shall be entitled to deduct a sum
equivalent to the amount in respect of the premiums paid and On-Cost Charges
(calculated by applying the percentage for On-cost Charges to the premiums
paid), from any money due or become due to the Contractor under this Contract or
to recover the same from the Performance Bond or as a debt due from the
Contractor.

19. INSURANCE AGAINST PERSONAL INJURIES AND DAMAGE TO PROPERTY

19.1 Taking of Insurance

19.1.1 Without prejudice to its liability to indemnify the Government under Clause
15, the Contractor shall, as a condition precedent to the commencement
of any work under this Contract, effect and maintain the insurance policy
against personal injuries and damage to property whether with or without
an excess amount as specified in the Appendix to the Conditions of
Contract in Appendix 5 as are necessary to cover the liability of the
Contractor and all sub-contractors, whether nominated or otherwise.

19.1.2 Such insurance shall be for the purpose of personal injuries or death,
damage or loss to property, movable or immovable, arising out of, or in the
course of, or by reason of the execution of the FMM Services and caused
by any negligence, omission, breach of contract or default of the

26
 Contractor or any sub-contractor, whether nominated or otherwise, or of
any servants or agents of the Contractor or of any such sub-contractor,
whether nominated or otherwise. Where an excess amount is specified in
the Appendix to the Conditions of Contract in Appendix 5, the Contractor
shall bear the amount of such excess.

19.1.3 Such insurance as referred to under Clause 19.1.1 shall be effected with
an insurance company licensed under the Financial and Services Act [Act
758] and approved by the Government and maintained in the joint names
of the Government and Contractor and all sub-contractors, whether
nominated or otherwise. Such insurance shall cover from the period of the
date of possession of the Site until the Contract Expiry Date for any claim
occasioned by the Contractor or any sub-contractor in the course of any
operations carried out by the Contractor or any sub-contractor.

19.2 Production of Policies

It shall be the duty of the Contractor to produce and shall deposit the relevant
policy or policies of the insurance together with receipts in respect of premiums
paid to the FSO, whether demanded or not.

19.3 Default in Insuring

If the Contractor fails to effect or renew such insurances as are required to be

effected and maintained under this Contract, the Government or the FSO on its
behalf may effect or renew such insurance and shall be entitled to deduct a sum
equivalent to the amount in respect of the premiums paid and On-Cost Charges
(calculated by applying the ‘Percentage for On-cost Charges’ stated in the
Appendix to the Conditions of Contract in Appendix 5), from any money due or
become due to the Contractor under this Contract or to recover the same from the
Performance Bond or as a debt due from the Contractor.

27
19.4 Cancellation of Insurance

19.4.1 The Contractor shall not at any time permit or cause to be done any act,
matter or thing which may result in any insurance effected by virtue of this
Contract being vitiated or rendered void or voidable or whereby the rate of
the premium on any insurance effected shall be liable to be increased.

19.4.2 The Contractor shall ensure that any insurance policy to be effected
hereto shall only be cancelled by the insurer after the expiry of thirty (30)
days from the date of receipt by the Government of a written notice from
the insurer advising of such impending cancellation.

19.5 Loss or Damage Occasioned by Insured Risk

In the event of any damage or loss occurring during the performance of this
Contract, the Contractor shall repair, replace or make good such damage or loss
from the amount of insurance claimed, if sufficient, or if insufficient, using its own
resources.

20. RESTRICTION AND PROCEDURE ON USE OF IMPORTED MATERIALS,

GOODS

20.1 The Contractor shall use local goods/materials as listed in the ‘Senarai Bahan/
Barangan Buatan Tempatan’ issued by IKRAM QA Services Sdn. Bhd. and/or
issued by SIRIM QA Services Sdn. Bhd., and comply with the Treasury’s
Instruction as specified in Appendix 6 or any other Government circulars,
whichever is relevant. If the Contractor fails to comply with this requirement, the
Government may reject the goods/materials which are found to be not in
compliance with this requirement.

20.2 For local goods/materials not listed under Clause 20.1, such goods/materials may
be allowed if prior testing and certification from IKRAM QA Services Sdn. Bhd. or
SIRIM QA Services Sdn. Bhd., whichever is relevant, has been obtained. Where
such testing cannot be carried out by IKRAM QA Services Sdn. Bhd. or SIRIM QA

28
 Services Sdn. Bhd. the Contractor may, with the FSO’s prior approval, have the
testing done by another agency.

20.3 The Contractor shall, under no circumstances be permitted to incorporate or

supply imported materials, machinery, equipment, vehicles or other goods into the
FMM Services or forming part of the scope of the FMM Services except those
approved by the Government, prior to the execution of this Contract. The
Contractor shall at its own cost entirely substitute any materials, machinery,
equipment, vehicles or other goods proposed to be imported but not approved by
the Government, with suitable local materials, machinery, equipment, vehicles or
other goods as approved by the Government.

20.4 The Contractor shall ensure that the procurement of approved imported materials,
machinery, equipment, vehicles or other goods are obtained directly from the
country of origin based on Free On Board or other similar basis. The transportation
and insurance of such imported materials, machinery, equipment, vehicles or other
goods from the country of origin to the Site shall be arranged by the Contractor
through the Government’s Multi Modal Transport Operators (herein referred to as
“MTO”) in accordance with the Treasury’s Instructions as stipulated in Appendix 6.
The Contractor shall allow in the tender all costs and time required in complying
with the requirements of Clause 20 including the cost required for the services
provided by the MTO.

20.5 The Contractor shall submit documentary evidence of compliance with Clause 19
to the FSO within one (1) month from the date of each delivery to the Site of such
materials, machinery, equipment, vehicles or other goods.

21. PROVISIONS OF EQUIPMENT

21.1 The Contractor shall pay all port dues including (but not by way of limitation)
wharfage dues, pilotage fees, anchorage, berthage and mooring fees, quarantine
dues, loading porterage and overtime fees for materials, machinery, equipment,
vehicles or other goods or use directly in connection with the construction,

29
 completion of the works brought into and despatched from Malaysia by the
Contractor (or in its name by agents).

21.2 The Contractor shall furnish to the FSO all such shipping documents, invoices and
other documentation as may be required by the customs authorities in connection
with the importation of materials, machinery, equipment, vehicles or other goods.

21.3 In the case of materials, machinery, equipment, vehicles or other goods imported
on the Contractor’s behalf by importing agents and the like, both the shipping
documents and the invoices of the original suppliers or manufacturers must
indicate clearly that the consignment is for the Contractor’s account.

21.4 The procedure in respect of the requirements of the foregoing shall be determined
by the Authority. The Contractor shall make written application to the FSO and
shall provide the relevant documentation of all materials, machinery, equipment,
vehicles or other goods to be imported into Malaysia not less than forty-five (45)
days before the arrival of the said materials, machinery, equipment, vehicles or
other goods.

21.5 The Contractor shall pay all charges and other expenses in connection with the
landing and shipment of all materials, machinery, equipment, vehicles or other
goods and other things of whatsoever nature brought into or despatched from
Malaysia for the purpose of this Contract.

21.6 The Contractor shall make its own arrangement and on its own cost in obtaining
clearance from the Authority of the materials, machinery, equipment, vehicles or
other goods.

21.7 The Contractor shall be required to furnish all lists of materials, machinery,
equipment, vehicles or other goods to the FSO whether the materials, machinery,
equipment, vehicles or other goods are hired or acquired.

21.8 The Contractor shall ensure that any warranties or guarantees in respect of
materials, machinery, equipment, vehicles or other goods incorporated by the

30
 Contractor into the Site are transferred to the Government before the expiry or
termination of this Contract.

21.9 For the avoidance of doubt, any materials, machinery, equipment, vehicles or
other goods that are incorporated into the Site by the Contractor which have been
paid by the Government, shall belong to the Government at the expiry or
termination of the Contract. The Contractor shall ensure that such materials,
machinery, equipment, vehicles or other goods are free from any charges and/or
encumbrances.

22. MANAGEMENT INFORMATION SYSTEM

22.1 Contractor’s Obligation

22.1.1 The Contractor shall, within three (3) months from the Commencement
Date, develop, procure, manage and maintain the Management
Information System which shall be compatible with and able to integrate
with the Government’s asset management information system;

22.1.2 If there is an Existing Management Information System, the Contractor

shall manage, maintain, amend, upgrade and update the Existing
Management Information System accordingly.

22.1.3 The Contractor shall integrate the Management Information System or the
Existing Management Information System with the Government’s asset
management information system at its own cost and expense.

22.2 Asset Inventory and Data Management

The Contractor shall—

(a) ensure all asset inventory and data management comply with the
Government’s asset policies and guidelines;

31
 (b) manage, maintain and upgrade all assets coding and tagging to
comply with the Government’s asset policies and guidelines;

(c) establish the appropriate method and/or manner of asset inventory

and data management and submit to FSO for its approval before it is
implemented;

(d) comply with the Official Secrets Act 1972 [Act 88], Arahan
Keselamatan Kerajaan and any relevant Government directives
regarding any Government official information, data, records and
reports, etc;

(e) ensure the accuracy, validity and integrity of the data in the
Management Information System; and

(f) indemnify the Government for any loss, damage or leakage of any
data in the Management Information System.

23. FACILITY SUPERINTENDING OFFICER

23.1 Appointment of FSO

The Government shall appoint a FSO to act on behalf of the Government for
matters stipulated in Clause 23.5 of this Contract.

23.2 FSO’s Instructions

23.2.1 Save for the instructions and/or notice to be issued by the Government’s
Representative –

(a) the FSO shall issue written instructions to the Contractor as he

deems fit to ensure that the FMM Services are performed by the
Contractor in accordance with the terms and conditions of this

32
 Contract and the Contractor shall comply with the instructions
issued by the FSO; and

(b) whenever necessary, the FSO may issue oral instructions to the
Contractor and the oral instructions shall be confirmed in writing by
the FSO within seven (7) days from the date of such oral
instructions being given.

23.2.2 If within seven (7) days after the receipt of a written notice from the FSO,
requiring compliance of an instruction and the Contractor does not comply
therewith, then the FSO may, without prejudice to any other rights or
remedies available to the Government under this Contract, undertake the
work departmentally or appoint a third party to carry out any work which
may be necessary to give effect to such instruction. All costs and
expenses incurred by the Government in connection with such
appointment (including On-Cost Charges), shall be deducted from any
money due or would become due to the Contractor under this Contract. In
the event the money due or would become due to the Contractor under
this Contract is insufficient for the purpose of such deduction, such amount
shall be recovered from the Performance Bond or as a debt due from the
Contractor.

23.3 FSO’s instructions on safety and security aspects of the Site

The FSO shall from time to time give further instructions to the Contractor as the
FSO deems fit on safety and security aspects of the Site and the Contractor shall
comply with such instructions at the Contractor's own cost and expense.

23.4 FSO's notifications, etc., in writing

Notwithstanding Clause 23.2.1(b), all notifications, directions or approvals issued

by the FSO to the Contractor pursuant to this Contract shall be in writing.

33
23.5 FSO's duties

The duties of the FSO shall include—

(a) overseeing, monitoring, supervising, giving instructions and regulating the

FMM Services carried out by the Contractor in all aspects pertaining to this
Contract;

(b) providing all relevant information, drawings and records pertinent to the
provision of the FMM Services to the Contractor except where such
information, drawings and records that the Government considers to be
confidential in nature and cannot be disclosed; and

(c) providing any assistance to the Contractor for the purpose of obtaining all
approvals and consents from the Authority in respect of matters necessary
for the performance of the Contractor's obligations hereunder PROVIDED
ALWAYS that the Contractor has complied with all statutory requirements.
For the avoidance of doubt, the FSO and/or the Government shall not be
liable if the approval of the Authority is not forthcoming.

24. FSO’S REPRESENTATIVE

24.1 The FSO may from time to time appoint such number of FSO’s Representative as
he deems fit and may change the FSO’s Representative by giving the Contractor
notice in writing of such change.

24.2 The FSO’s Representative shall –

(a) assist the FSO in carrying out the FSO’s duties including overseeing,
monitoring, supervising and regulating the FMM Services carried out by the
Contractor;

(b) have the powers and duties of the FSO that have been delegated to him in
writing by the FSO; and

34
 (c) be responsible to the FSO in all aspect pertaining to this Contract.

25. GOVERNMENT’S RIGHT TO RENOVATE THE SITE

25.1 The Government may, at any time during the Contract Period, appoint any third
party to carry out any renovation and/or modification to the Site or any part of the
Site at the Government’s cost and expense. The Contractor shall render any
assistance required by the third party appointed by the Government for the
purpose of carrying out any renovation and/or modification to the Site or any part
of the Site at no cost to the Government.

25.2 Notwithstanding Clause 25.1, the Contractor hereby agrees that any renovation
and/or modification to the Site or any part of the Site carried out by the
Government shall not relieve the Contractor of its obligations in carrying out the
FMM Services under this Contract.

26. INTELLECTUAL PROPERTY RIGHTS

26.1 Ownership of Intellectual Property Rights

All intellectual property rights arising out of designs, plans, calculations to support
the designs, bill of quantities or drawings, drawings, software, records, reports,
data, literary and artistic materials, documents, information compiled, used,
developed and incorporated into the FMM Services shall vest in and become the
sole property of the Government, free and clear from all liens, claims and
encumbrances (herein referred to as “Government’s Intellectual Property”). The
Contractor shall not at any time during the Contract Period or after the expiry or
termination of this Contract, in any way question or dispute the ownership of the
Government’s Intellectual Property. Upon expiry or termination of this Contract, the
Contractor shall forthwith discontinue such use, without any right of compensation
for such discontinuation.

35
26.2 License to use Government’s Intellectual Property

The Government hereby grants to the Contractor the right to use the
Government’s Intellectual Property (on a non-assignable and non-exclusive basis)
strictly for the purposes of discharging the Contractor's obligations hereunder in
accordance with the terms hereof. The Contractor further acknowledges that it has
no proprietary interest or other rights whatsoever in or in relation to any
Government’s Intellectual Property and shall not acquire any proprietary interest or
other rights whatsoever in or in relation to any such Government’s Intellectual
Property.

26.3 Modification of Government’s Intellectual Property

The Contractor shall not without the prior written consent of the Government
reformat or make any modification, alteration or change otherwise change the
Government’s Intellectual Property in any manner which may or may not affect
the copyright of the Government in the Government’s Intellectual Property. The
Contractor shall not merge or combine the Government’s Intellectual Property with
other property in such a way that the Government’s Intellectual Property ceases to
be readily identifiable.

26.4 Government’s Intellectual Property to remain confidential

The Contractor and its successor in title shall ensure that all Government’s
Intellectual Property obtained during the course of this Contract shall remain
confidential and protected at all times.

26.5 Integrity of Government’s Intellectual Property

The Contractor shall take all reasonable steps to maintain, protect and preserve
the integrity of all Government’s Intellectual Property, including, without limitation,
taking all reasonable physical and system security measures to prevent loss or
unauthorised use of or access to the Government’s Intellectual Property. In the
event of any loss or unauthorised use of or access to the Government’s

36
 Intellectual Property, the Contractor shall promptly notify the FSO in writing and at
the Contractor's own cost and expense, take all steps necessary forthwith to
restore the loss of Government’s Intellectual Property and/or cease the
unauthorised use of or access to the Government’s Intellectual Property
concerned.

26.6 Indemnity against infringement of Intellectual Property Right

26.6.1 The Contractor shall indemnify, protect and defend at its own cost and
expense the Government and its agents and servants from and against all
actions, claims and liabilities arising out of acts done by the Contractor in
the performance of this Contract including the use or violation of any
copyright work or literary property or patented invention, article or
appliance. The Contractor shall be responsible for any claim that the
equipment supplied infringes a patent, copyright or registered design.

26.6.2 The Government shall not be liable in contract, tort or otherwise for any
direct, indirect or consequential loss or damage sustained by the
Contractor for any use of the Government’s Intellectual Property or storing
the same on the Contractor's database management system.

26.6.3 The Contractor shall indemnify the Government fully against all loss or
damages suffered as a result of a breach of this clause by the Contractor,
the Contractor's employees, agents and sub-contractors.

26.6.4 Clause 26 shall survive early termination or expiry of this Contract.

27. USAGE OF GOVERNMENT EMBLEM

The Contractor shall not during or after the expiry of the Contract Period or earlier
termination of this Contract, without the prior written consent of the Government,
use or adopt or permit the use or adoption by its employees, agents and sub-
contractors of any specified name or specified emblem, or any colourable imitation
thereof, trade mark, trade name, trading style or commercial designation that

37
 includes or is similar to or may be mistaken for the whole or any part of any or any
colourable imitation thereof, logo, trade mark, trade name, trading style or
commercial designation used by the Government.

28. LICENSE

28.1 The Contractor shall obtain in the name of the Government, licences from the
relevant proprietor or holder of intellectual property rights in any software used to
perform the FMM Services under this Contract to lawfully enable and authorize the
use of the said software for the performance of the FMM Services. In the event the
Contractor fails and/or neglects to obtain licences for the said software for the
Government, then the Government may apply for such licences and any cost
incurred by the Government shall be deducted from any monies due to the
Contractor or which may become due to the Contractor or from the Performance
Bond or as a debt due from the Contractor under this Contract.

28.2 In the event of termination or expiry of the Contract Period, the licences obtained
pursuant to Clause 28.1 shall vest in the Government.

29. VALUATION AND VARIATION

29.1 Upon request or recommendation from the Contractor for a variation under this
clause and subject to Clause 29.4, the FSO may issue written instructions
requiring a variation to the FMM Services in the form of a “variation order”.
Pending the issuance of the variation order from the FSO, the Contractor shall
continue to perform its obligations under this Contract as if such variation has not
been requested or recommended. Upon the issuance of such variation order, the
Contractor shall forthwith comply with the variation order issued.

29.2 The term ”variation” means a change in the Technical Specification which
necessitates the alteration or modifications of the FMM Services, quality or
quantity of the FMM Services as described by or referred to therein and which may
affect the Contract Sum including —

38
 (a) the addition, omission or substitution of any FMM Services;

(b) a change to the nature of the facilities, the Site and the user area
distribution; or

(c) a change to the Government Requirements on the scope of FMM Services,

in so far as it requires a change in the FMM Services so as to meet the
required performance and standard specified in the Performance
Requirement in Appendix 7B.

29.3 For the avoidance of doubt, the power of the FSO to issue a variation order under
Clause 29.1 shall be subject to the financial limits as set out in Appendix 5 hereto.
If the instruction for a variation under this clause exceeds the financial limits as set
out in the Appendix 5, the FSO shall obtain the prior written approval of the
relevant authorities of the Government.

29.4 Upon receipt of request for variation from the Contractor in Clause 29.1 and before
issuance of the variation order, the FSO shall measure and evaluate each request
for variation in accordance with the following rules, unless previously or otherwise
agreed in writing by the FSO:

(a) the rates in the Schedule of Price as specified in Appendix 4 after

adjustment, if necessary, as provided for in Clause 30 hereof, shall
determine the valuation of work of similar character and executed under
similar conditions as work priced therein;

(b) the said rates, where work is not of similar character or executed under
similar conditions as aforesaid, shall be the basis of rates for the same, so
far as may be reasonable, failing which a fair valuation thereof shall be
made by the FSO; and/or

(c) the rates in the Schedule of Price as specified in Appendix 4 shall

determine the valuation of items omitted, PROVIDED THAT if the omissions
substantially vary the conditions under which any remaining items of work

39
 are carried out, the rates of such remaining items shall be valued under
Clause 29.4(b).

29.5 In the event the variation cannot be properly measured or valued by the FSO
pursuant to Clause 29.4, the FSO may allow day work price as specified in the
Schedule of Price in Appendix 4 unless otherwise provided in the Schedule of
Price and the day work prices for the purpose of this Contract shall be taken to
mean the actual net cost to the Contractor of its materials, machinery and labour
for the work concerned. The Contractor shall be paid day work rate, plus fifteen
percent (15%), which shall include the cost of all ordinary machinery, tools,
scaffolding, supervision and profit. PROVIDED ALWAYS that as a condition
precedent to any right to any payment, the Contractor shall produce vouchers,
receipts and wage books specifying the time for labour and machinery employed
and materials used to the FSO not exceeding seven (7) days after the FMM
Services shall have been carried out.

29.6 The amount of variations shall be certified by the FSO and added to or deducted
from the Contract Sum, as the case may be, and the amount shall be adjusted
accordingly in accordance with the rules as provided under Clause 29.5.

29.7 The variation instructed under this clause shall not in any way vitiate or invalidate
this Contract nor shall it relieve the Contractor of its obligations under this
Contract.

30. SCHEDULE OF PRICE

30.1 Basis of Contract Sum

30.1.1 The quality and the description of the FMM Services as set out in the
Schedule of Price in Appendix 4 shall be the basis of the Contract Sum.
Any error in description or omission of the FMM Services from the said
Schedule of Price shall not vitiate this Contract but shall be rectified and
the amount in respect of such rectification shall be added to or deducted
from the Contract Sum as the case may be.

40
 30.1.2 The Government reserves the right to adjust the prices and rates in the
Schedule of Price submitted by the Contractor to ensure their
reasonableness before acceptance of tender and the decision of the
Government shall be final.

30.1.3 Any adjustment of the prices and/or rates in the schedule of price
required under Clause 30.1.2 and any arithmetical error or omission in
the prices or rates and/or calculations of the Contractor in the Schedule
of Price shall before the signing of this Contract be so rectified and
adjusted that when correctly calculated, the total amount in the
Summary of Tender as specified in Appendix 3 shall represent the same
amount as the tender amount in the Form of Tender in Appendix 1. The
tender amount shown in the Form of Tender in Appendix 1 shall remain
unaltered. PROVIDED ALWAYS that the Provisional Sum shall be
excluded from such calculation.

30.2 Provisional Quantities

30.2.1 Where the quantities of FMM Services are stated as “provisional” in the
Schedule of Price as specified in Appendix 4, such quantities are the
estimated quantities which shall not be taken as the actual and correct
quantities of works to be executed by the Contractor in the fulfilment of
its obligations under the Contract. The amount to be paid to the
Contractor in respect of such FMM Services upon expiry of the Contract
Period shall be ascertained by re-measurement of the work as it is
actually executed. The rates in the “provisional” bills of quantities in the
Schedule of Price shall determine the valuation of the FMM Services of
similar character and executed under similar conditions as work priced
therein. The said rates, where work is not of similar character or
executed under similar conditions as aforesaid, shall be the basis of
rates for the same so far as maybe reasonable, failing which a fair
valuation thereof shall be made by the FSO.

41
 30.2.2 For the purpose of Clause 30.2.1, the amount to be paid to the
Contractor shall be set off against the amount for such work in the bills
of quantities in the Schedule of Price, and the balance shall be added to
or deducted from the Contract Sum as the case may be.

30.3 Provisional Sums

The Provisional Sum may be expended at such times and in such amounts as the
FSO may direct. Such sum if not used either wholly or in part shall be deducted
from the Contract Sum. The value of works which are executed by the Contractor
in respect of Provisional Sums shall be ascertained in accordance with Clause
30.1.3. The said value of such work executed by the Contractor shall be set off
against all such Provisional Sums and the balance shall be added to or deducted
from the Contract Sum as the case may be.

31. GOVERNMENT’S RIGHT TO SET OFF

31.1 The Government or the FSO on its behalf shall have the right to set-off by
deducting any money owing from the Contractor to the Government under this
Contract from any sum which may become due or is payable to the Contractor
under this Contract or any other contract to which the Government and Contractor
are parties thereto. The Government or the FSO on its behalf, when issuing any
interim payment certificate under Clause 5, shall have regard to any such sums so
claimable against the Contractor PROVIDED ALWAYS that this provision shall not
affect any other remedy under this Contract or in law to which the Government
may be entitled for the recovery of such sums.

31.2 For the avoidance of doubt, the Government's rights to set-off in Clause 31.1 shall
be in addition to any rights to set-off that the Government may have against the
Contractor in law.

42
32. FINAL ACCOUNT AND FINAL CERTIFICATE

32.1 Application for Final Account

32.1.1 The Contractor shall submit to the FSO, at such times and in such form
as the FSO may prescribe, a written application for final payment of the
value of the FMM Services showing the amounts which in the
Contractor’s opinion are due under the Contract.

32.1.2 Submission of the written application by the Contractor to the FSO

pursuant to Clause 32.1.1 shall be accompanied with—

(a) all documentation substantiating the amounts which in the

Contractor’s opinion are due under the Contract; and

(b) the return of all drawings, details, specifications, reports and

management plans.

32.2 Final Certificate

32.2.1 Within three (3) months after receipt of the Contractor's application for
the final account pursuant to Clause 32.1, the FSO shall issue a final
certificate based on his determination of the final account. The FSO's
determination of the final account and final certificate will be based on
the Contractor's application for the final account made pursuant to
Clause 32.1 (in so far as the FSO deems it relevant to his determination)
and/or such other information and documentation that the FSO deems
fit. The final certificate shall state the amount to be paid under this
Contract by the Government to the Contractor or otherwise, as the case
may be, after deducting all amounts previously paid to the Contractor by
the Government and all sums to which the Government is entitled under
this Contract and/or in law.

43
32.2.2 If the Contractor does not submit an application for the final account in
accordance with Clause 32.1 within three (3) months from the expiry of
the Contract Period, the FSO may give instruction in writing to the
Contractor stating that if the application for the final account is not
submitted by the Contractor within two (2) months from the date of the
written instruction, the FSO may himself prepare the final account and
final certificate without reference to the Contractor.

32.2.3 No certificate of the FSO or any approval, written or otherwise, by the

FSO or the Government or payment by the Government under any
provision of this Contract shall be considered as conclusive evidence as
to the sufficiency of the FMM Services nor shall it relieve the Contractor
from any or all of its obligations under this Contract and/or its liability to
amend and make good all defects, imperfections, shrinkages, or any
other faults whatsoever as provided by this Contract. No certificate
issued by the FSO shall be final and binding in any dispute between the
Parties if the dispute is brought before an arbitrator.

32.2.4 No final payment due to the Contractor shall be made unless and until
the Contractor shall have satisfied the FSO by means of a statutory
declaration made by or on behalf of the Contractor that the workmen
who have been employed by the Contractor on the FMM Services,
including workmen employed by sub-contractor have received all wages
due to them in connection with such employment, and that all dues or
contributions under the Employment Act 1955 [Act 265], the Employee’s
Social Security Act 1969 [Act 4], the Employee’s Provident Fund Act
1991 [Act 452] and any other laws relevant to the employment of
workmen, have been paid.

32.2.5 For the purpose of the final account of the Contract, unless the
Contractor disputes the final certificate within thirty (30) days of
receiving it from the FSO, it shall be deemed to accept the accuracy of
the said certificate.

44
32.3 Contractor's unfulfilled obligations

Notwithstanding the issuance of the final certificate under Clause 32.2, the
Contractor shall remain liable for the fulfilment of any obligations arising under the
provisions of this Contract which remain unfulfilled prior to the issuance of such
final certificate.

33. INVESTIGATION AND AUDIT BY THE GOVERNMENT

33.1 Government's right to inspect, investigate and audit

The Government or any officer or person authorized in writing by the Government

at any time during the Contract Period, shall have the right to—

(a) inspect and investigate the Site, components and any standard or
equipment therein used in the implementation of the FMM Services;

(b) audit or monitor the performance of the FMM Services;

(c) inspect and investigate all records and documents and make copies thereof
in relation to the implementation of the FMM Services which are required to
be kept at the Site;

(d) request and obtain any information with regard to the FMM Services; and

(e) carry out audits on the operational, contractual and financial matters
pertaining to the Contract.

45
33.2 Contractor’s role during inspection, investigation and auditing

The Contractor shall provide all necessary and appropriate information, facilities
and cooperation during any inspection, investigation and auditing of the FMM
Services conducted by the Government.
34. GOVERNMENT’S REPRESENTATIVE

Notwithstanding any provision in this Contract, the right to act on behalf of the
Government in respect of any matter which arises out of the provisions of Clauses
35, 36, 37, 39 and 40 shall be exercised by the Government’s Representative who
is an officer named in the Appendix to the Conditions of the Contract in Appendix
5.

35. SUSPENSION OF FMM SERVICES

35.1 Suspension and Resumption of FMM Services

35.1.1 The Government may at any time issue a written instruction to the
Contractor to suspend the whole or any part of the FMM Services
(“Suspension Order”).

35.1.2 Upon receipt of the Suspension Order pursuant to Clause 35.1.1, the
Contractor shall suspend the whole or any part of the FMM Services for
such time and in such manner as specified in the Suspension Order and
shall duly protect, store and secure the FMM Services or such part of
the FMM Services against any deterioration, defect, loss or damage.

35.1.3 During the suspension period, the Contractor shall continue to perform
its obligations under this Contract, which are not affected by the
Suspension Order, including the obligation to effect and maintain the
insurances and Performance Bond.

35.1.4 The Government may, by written instruction, instruct the Contractor to

resume the FMM Services at any time thereafter. Upon receipt of such

46
 instruction, the Contractor shall resume the FMM Services and the
Parties shall jointly examine the FMM Services affected by the
suspension. The Contractor shall make good any deterioration or defect
in or loss or damage of the FMM Services which has occurred during
the suspension.

35.1.5 Where the Suspension Order is issued by the Government due to—
(a) any provisions under any laws; or

(b) any offence committed by the Contractor or its workmen under

any laws,

the Government shall not be liable to compensate the Contractor in

respect of any cost for making good any deterioration or defect in or loss
of the FMM Services which occurred during the suspension. The
Contractor shall comply and ensure compliance with the provisions of
the aforesaid laws without any entitlement to cost and time.

35.1.6 Where the Suspension Order is issued by the Government due to

reasons other than mentioned in Clause 35.1.5, the Government shall
compensate the Contractor in respect of any cost for making good any
deterioration or defect in or loss of the FMM Services which occurred
during the suspension in accordance with Clause 35.1.8 PROVIDED
THAT such deterioration, defect or loss of the FMM Services is not due
to the default of Contractor.

35.1.7 Notwithstanding Clause 35.1.5 and Clause 35.1.6, the Contractor shall
take all necessary steps and ensure its workmen take the same
necessary steps to mitigate any such cost incurred due to any
suspension order or instruction issued pursuant to Clause 35.1.1.

35.1.8 If the FMM Services has been materially affected due to the suspension
pursuant to Clause 35.1.1 and the Contractor has incurred direct loss
and/or expense for which the Contractor would not be reimbursed by a

47
 payment made under any other provision in this Contract, the Contractor
shall within thirty (30) days of the occurrence of such instruction, give
notice in writing to the FSO of its intention to claim for such direct loss or
expense together with an estimate of the amount of such loss and / or
expense, subject always to Clause 35.1.9.

35.1.9 As soon as is practicable but not later than ninety (90) days after
receiving instruction pursuant to Clause 35.1.4 to resume the FMM
Services, the Contractor shall submit full particulars of all claims for
direct loss or expense under Clause 35.1.8 together with all supporting
documents, vouchers, explanations and calculations which may be
necessary to enable the direct loss or expense to be ascertained by the
Government. The amount of such direct loss or expense as ascertained
by the Government shall be paid to the Contractor within ……... (…….)
days from the day the Government has instructed the Contractor to
resume the FMM Services.

35.1.10 If the Contractor fails to comply with Clause 35.1.8 and Clause 35.1.9, it
shall not be entitled to such claim and the Government shall be
discharged from all liability in connection with the claim.

35.1.11 Subject to Clause 35.1.10 and for the avoidance of doubt, the Parties
hereby agree that the Contractor shall not be entitled to any form of
losses including loss of profit, damages, claims or whatsoever other
than stipulated under Clause 35.1.9. The Parties further agree that any
payment for direct loss or expense incurred by the Contractor shall
constitute as a full and final settlement between the Parties.

35.1.12 In the event such suspension shall continue for a period exceeding six
(6) months, the Parties may mutually terminate this Contract or suspend
the FMM Services for a further period.

35.2 Consequences of Mutual Termination pursuant to Clause 35.1.12

48
If this Contract is mutually terminated pursuant to Clause 35.1.12—

(a) the Contractor shall—

(i) cease to carry out the FMM Services and all rights conferred to the
Contractor under this Contract shall revert to, vest in and remain
vested with the Government;

(ii) at no cost to the Government, vacate the Site and remove all the
Contractor's equipment within fourteen (14) days from the date of
mutual termination, failing which the Government may (but without
being responsible for any loss or damage) remove and sell any such
equipment, holding the proceeds, less all costs incurred, to the credit
of the Contractor, workmen, employees, agents and sub-contractors
from the Site; and

(iii) hand over to the Government the Management Information System

together with its data, license, hardware and software in good and
working condition at no cost to the Government.

(b) the Government shall—

(i) be entitled to carry out and complete the FMM Services on its own or
appoint any third party to carry out and complete the FMM Services;
and

(ii) pay to the Contractor the due and payable payment as follows:

(aa) value of the FMM Services rendered up to the date of

termination;

(bb) amounts payable in respect of any preliminary items so far as

the FMM Services comprised therein has been carried out or

49
 performed and a proper proportion of any such items which
have been partially carried out or performed;

(cc) cost of materials or goods purchased by the Contractor for the

FMM Services which payment has been made and the
materials or goods have been delivered to the Contractor or of
which the Contractor is legally liable to accept delivery. Such
materials or goods shall become the property of the
Government upon such payment being made to the
Contractor;

(dd) a sum being the amount of any expenditure reasonably

incurred by the Contractor in the expectation of completing
the whole of the FMM Services in so far as such expenditure
has not been recovered by any other payments referred to in
this sub-clause; and

(ee) a sum being the amount of any expenditure reasonably

incurred by the Contractor for the protection of the Site and
removal of equipment and site facilities.

(c) for the avoidance of doubt, the Parties hereby agree that the Contractor
shall not be entitled to any form of losses including loss of profit, damages,
claims or whatsoever other than stipulated under Clause 35.2(b)(ii). The
Parties further agree that the payment stipulated in Clause 35.2(b)(ii) shall
constitute as a full and final settlement between the Parties.

36. TERMINATION BY THE GOVERNMENT

36.1 Default by the Contractor

36.1.1 Event of Default

50
Without prejudice to any other rights or remedies which the Government
may possess under this Contract or under the law, if during the Contract
Period, the Contractor—

(a) fails to commence the FMM Services at the Site in accordance

with Clause 9.5;

(b) wilfully suspends or abandons the carrying out of the FMM

Services or any part thereof;

(c) fails to proceed regularly or diligently with the performance of its

obligations under this Contract;

(d) fails to execute the FMM Services in accordance with the terms
and conditions of this Contract;

(e) persistently neglects to perform its obligations under this

Contract;

(f) fails to comply with any of the FSO's and / or the Government’s
Representative’s instructions;

(g) fails to maintain the validity of the Performance Bond until twelve
(12) months after the expiry of this Contract; and/or

(h) fails to perform the FMM Services in accordance with the

Performance Requirement,

then, the Government may give written notice to the Contractor

specifying the default and requiring the Contractor to remedy such
default within the period determined by the Government (hereinafter
referred to as the “Notice to Remedy”). If the Contractor fails to remedy
the default specified in the Notice of Remedy, the Government shall
have the right to forthwith terminate this Contract by giving a written

51
 notice to that effect to the Contractor (hereinafter referred to as the
“Notice of Termination”).

36.1.2 Consequences of termination

If this Contract is terminated pursuant to Clause 36.1.1—

(a) the Contractor shall—

(i) cease to carry out the FMM Services at the date of receipt
of the Notice of Termination and all rights conferred to the
Contractor under this Contract shall revert to, vest in and
remain vested with the Government;

(ii) at no cost to the Government, vacate the Site and remove

all the Contractor's equipment within fourteen (14) days of
the receipt of the Notice of Termination, failing which the
Government may (but without being responsible for any
loss or damage) remove and sell any such equipment,
holding the proceeds, less all costs incurred, to the credit
of the Contractor, workmen, employees, agents and sub-
contractors from the Site;

(iii) require its workmen, employees, agents and sub-

contractors to co-operate with the Government to ensure a
smooth transition of the FMM Services performed by the
Contractor to the Government or by a new contractor
engaged by the Government;

(iv) return to the Government any material, machinery,

equipment, vehicle, appliance, article, process, tool,
record, document, manual, data and/or software
application in the Contractor's possession that belongs to
the Government;

52
(v) hand over to the Government the Management Information
System together with its data in relation to the FMM
Services under this Contract in good and working
condition;

(vi) terminate all third party contracts entered into by the

Contractor for the purposes of this Contract PROVIDED
THAT the Government shall have the right to enter into
contract with the said third party for the purposes of
completing the FMM Services. The Government shall not
be responsible to pay the said third party for any materials
or goods delivered for the purposes of this Contract
(whether before or after the date of termination). In
addition thereto, the Contractor shall indemnify and keep
indemnified the Government from and against all actions,
suits, claims, proceedings, losses, damages,
compensation, cost (including legal cost), charges and
expenses made by the said third party as a result of the
Contractor’s act, omission, breach and/or default in
relation to the implementation of this Contract;

(vii) assign to the Government, at no cost or expense to the

Government, the benefit of any contract or the supply of
any materials or goods and/or for the execution of the
FMM Services for the purposes of this Contract;

(viii) at no cost to the Government, hand over to the

Government all plans, designs, specifications and other
relevant documents relating to the FMM Services; and

(ix) pay to the Government any cost and expense (including

any incidental cost and expense) paid or incurred by the
Government arising from such default including actual cost

53
 and expense incurred by the Government in having to
complete the FMM Services; and

(b) the Government shall—

(i) forfeit the Performance Bond;

(ii) carry out and complete the FMM Services on its own or
employ any other person to carry out and complete the
FMM Services;

(iii) have the right to claim against the Contractor for any loss,
cost, expense and damages suffered as a result of
termination of this Contract; and

(iv) pay to the Contractor the value of services carried out up

to the date of termination which is still not paid to the
Contractor, and

(c) for the avoidance of doubt, the Parties hereby agree that the
Contractor shall not be entitled to any form of losses including
loss of profit, damages, claims or whatsoever upon termination of
this Contract under Clause 36.1. The Parties further agree that
payment made by the Government (if any) under Clause
36.1.2(b)(iv) shall constitute as a full and final settlement
between the Parties.

36.2 General Default of the Contractor

36.2.1 Event of Default

If at any time during the Contract Period—

54
 (a) an order is made by any court of competent jurisdiction or a
resolution is passed for the winding-up of the Contractor, except
for the purpose of reconstruction or amalgamation not involving
the realization of assets in which the interest of creditors are
protected;

(b) the Contractor goes into liquidation or a receiver is appointed

over the assets of the Contractor;

(c) the Contractor makes an assignment for the benefit of its

creditors or enters into an arrangement or composition with its
creditors or stops payment of its debts or is unable to pay its
debts;

(d) a provisional liquidator, receiver or manager of its business or

undertaking is appointed, or possession taken by or on behalf of
creditors or debenture holders secured by a floating charge of
any property comprised in or subject of the said floating charge;
or

(e) execution is levied against a substantial portion of the

Contractor's assets, unless it has instituted proceedings in good
faith to set aside such execution,

the Government shall have the right to terminate this Contract

immediately by giving written notice to that effect to the Contractor.

36.3 Consequences of Termination

In the event of termination of this Contract under Clause 36.2.1, the provision in
Clause 36.1.2 shall apply mutantis mutandis.

37. TERMINATION BY THE CONTRACTOR

55
37.1 Event of default by the Government

37.1.1 If the Government without any reasonable cause fails to perform or fulfil
any of its obligations which adversely affects the FMM Services, then
the Contractor may issue a notice specifying the default by the
Government and requiring the Government to remedy the same within
the period specified therein taking into account the nature of the remedy
to be carried out by the Government or such other period as may be
agreed by both Parties from the date of receipt of such notice.

37.1.2 If the Government fails to remedy the default period specified in such
notice issued under Clause 37.1.1 within the stipulated period time
therein or such other period as may be agreed by the Parties, the
Contractor shall have the right to forthwith terminate this Contract by
giving a written notice to that effect (hereinafter referred to as the
“Notice of Termination”).
37.2 Consequences of Termination

37.2.1 If this Contract is terminated by the Contractor pursuant to Clause

37.1.2-

(a) the Government shall—

(i) pay to the Contractor the value of the FMM Services

rendered up to the date of termination;

(ii) pay to the Contractor the amounts payable in respect of

any preliminary items so far as the FMM Services has
been carried out or performed and a proper proportion of
any such items which have been partially carried out or
performed;

(iii) pay to the Contractor a sum being the amount of any

expenditure reasonably incurred by the Contractor in so far

56
 as such expenditure has not been recovered by any other
payments referred to in this sub-clause; and

(iv) have the right to carry out and complete the FMM Services
on its own or appoint any third party to carry out and
complete the FMM Services; and

(b) the provisions in Clauses 36.1.2(a)(i) to (viii) and Clause

36.1.2(b) (ii) shall be applicable.

37.2.2 For the avoidance of doubt, the Parties hereby agree that the Contractor
shall not be entitled to any other form of losses including loss of profit,
damages, claims or whatsoever upon termination of this Contract
pursuant to Clause 37.1.2. The Parties further agree that payment made
by the Government under Clause 37.2.1(a) shall constitute as full and
final settlement between the Parties.

38. CERTIFICATE OF TERMINATION COST

38.1 The FSO may issue a certificate (hereinafter referred to as the “Certificate of
Termination Cost”) stating the Completion Cost and the Final Contract Sum, as
soon as−

(i) the arrangements for the completion of the FMM Services made by the
Government enable the FSO to make a reasonably accurate assessment of
the ultimate cost to the Government for completing the FMM Services
following the termination of the Contractor’s employment and the
engagement of other contractors or persons; and

(ii) the amount of loss and/or damage caused to the Government due to the
termination has been ascertained by the FSO.

38.2 For the avoidance of doubt, the term “Completion Cost” comprises the following
sums, costs or expenditure:

57
 (a) the sums previously paid to the Contractor by the Government;

(b) the sums paid or payable to other person engaged by the Government to
complete the FMM Services;

(c) any cost or expenditure incurred or to be incurred including On-Cost

Charges incurred by the Government in completing the FMM Services; and

(d) the amount of loss and/or damage caused to the Government due to the
termination.

38.3 For the purpose of computing the sum, cost or expenditure in Clause 38.2(c)
above, the sum, cost or expenditure shall include whatever cost of supervision,
interest and depreciation on and all other usual overhead charges and profit as
would be incurred if the FMM Services were completed by other third party.

38.4 For the avoidance of doubt, the term “Final Contract Sum” comprises the following
amounts or sums:

(a) the amount which would have been payable under the Contract on
completion in accordance with the Contract, allowing any variations or other
matters which would have resulted in an adjustment of the original Contract
Sum; and

(b) any other sums which the Government might be entitled under the terms of
the Contract to deduct from the original Contract Sum,

had this Contract not been terminated.

38.5 The Certificate of Termination Cost shall state the difference between the Final
Contract Sum and the Completion Cost. If the Final Contract Sum is less than the
Completion Cost, the difference shall be a debt payable by the Contractor to the
Government.

58
38.6 The Certificate of Termination Cost shall be binding and conclusive on the
Contractor as to the amount of such loss or damage specified therein.

39. TERMINATION ON CORRUPTION, UNLAWFUL OR ILLEGAL ACTIVITIES

39.1 Termination

Without prejudice to any other rights of the Government, if the Contractor, its
personnel, servants or employees is convicted by a court of law for corruption or
unlawful or illegal activities in relation to this Contract or any other agreement that
the Contractor may have with the Government, the Government shall be entitled to
terminate this Contract at any time, by giving immediate written notice to the effect
to the Contractor.

39.2 Consequences of Termination

39.2.1 In the event this Contract is terminated pursuant to Clause 39.1 the
Contractor shall comply with the consequences of termination in Clause
36.1.2.

39.2.2 For the avoidance of doubt, the Parties hereby agree that the Contractor
shall not be entitled to any other form of losses including loss of profit,
damages, claims or whatsoever upon termination of this Contract other
than stipulated in Clause 36.1.2. The Parties further agree that the
payment made by the Government under Clause 36.1.2 shall constitute
as a full and final settlement between the Parties.

40. TERMINATION ON NATIONAL INTEREST

40.1 Termination

59
 40.1.1 Notwithstanding any provision of this Contract and without prejudice to
the Government's other rights under this Contract and at law, the
Government may terminate this Contract by giving not less than thirty
(30) days’ notice to that effect to the Contractor (without any obligation
to give any reason thereof) if it considers that such termination is
necessary for national interest, national security or public policy.

40.1.2 For the purposes of this Contract, what constitutes "national interest",
"national security" and "public policy" shall be solely determined by the
Government and such determination shall for all intents and purposes
be final and conclusive and shall not be open to any challenge
whatsoever.

40.2 Consequences of Termination

Upon termination of this Contract pursuant to Clause 40.1—

(a) the Contractor shall cease to carry out the FMM Services and all rights
conferred to it under this Contract shall be vested in the Government;

(b) the Government shall pay to the Contractor, the due and payable payment
as follows:

(i) value of the FMM Services carried out up to the date of termination;

(ii) amounts payable in respect of any preliminary items so far as the

FMM Services comprised therein has been carried out or performed
and a proper proportion of any such items which have been partially
carried out or performed;

(iii) cost of materials or goods reasonably ordered for the FMM Services
which have been delivered to the Contractor or of which the
Contractor is legally liable to accept delivery (such materials or

60
 goods becoming the property of the Government upon such payment
being made to the Contractor);

(iv) a sum being the amount of any expenditure reasonably incurred by

the Contractor in the expectation of completing the whole of the
FMM Services in so far as such expenditure has not been recovered
by any other payments referred to in this sub-clause; and

(v) reasonable cost of any protection of the Site and removal of

equipment and site facilities;

(c) the provisions in Clause 36.1.2(a)(i) to (viii) and Clause 36.1.2(b)(ii) shall
apply; and

(d) for the avoidance of doubt, the Parties hereby agree that the Contractor
shall not be entitled to any form of losses including loss of profit, damages,
claims or whatsoever other than stipulated under Clause 40.2(b)(i) – (v).
The Parties further agree that the amount agreed above by the Government
shall constitute as a full and final settlement between the Parties.

40.3 The Parties hereby agree that termination of this Contract pursuant to Clause
40.1.1 and any payment due to the Contractor pursuant to Clause 40.2(b) shall be
subjected to any rights that the Government may have against the Contractor
under this Contract or in law, including, but not limited to, the rights to set-off.

41. FORCE MAJEURE

41.1 Events

Neither Party shall be in breach of its obligations under this Contract if it is unable
to perform or fulfil any of its obligations under this Contract or any part of them as
a result of the occurrence of an Event of Force Majeure. An “Event of Force
Majeure” shall mean an event, not within the control of the Party affected, which
that Party is unable to prevent, avoid or remove, and shall mean—

61
 (a) war (whether declared or not), hostilities, invasion, act of foreign enemies,
insurrection, revolution, rebellion, military or usurped power, civil war or acts
of terrorism;

(b) ionizing radiation or contamination from any nuclear waste, from

combustion of nuclear fuel, radioactive toxic explosive, or other hazardous
properties of any explosive, nuclear assembly or nuclear thereof;

(c) pressure waves caused by aircraft or other aerial devices travelling, at

sonic or supersonic speeds;

(d) natural catastrophe including but not limited to earthquakes, floods and
subterranean spontaneous combustion or any operation of the force of
nature, lightning and exceptionally inclement weather; or

(e) riot, commotion and disorders, criminal damage, sabotage, strike, lock out,
labour unrest or other industrial disturbances (affecting the performance of
this Contract) which are not the fault of the Contractor or its contractors, or
the Government which causes, or can reasonably be expected to cause
any Party to fail to comply with its obligations,

PROVIDED THAT Event of Force Majeure shall not include economic downturn,
non-availability of or insufficient funding or lack of financing on the part of the
Contractor to perform its obligations under this Contract.

41.2 Notification of Force Majeure

If an Event of Force Majeure occurs by reason of which any of the Parties is

unable to perform any of its obligations under this Contract, the affected Party
shall immediately notify the other Party in writing of the occurrence of any Event of
Force Majeure applicable to its obligations under this Contract giving full details
thereof and measures being taken by the Party so affected to reduce the severity
of such event and subsequently the cessation of such event.

62
41.3 Determination of Force Majeure

Neither Party shall be entitled to rely upon the provisions of Clause 41.1 if the
Parties reasonably determine that an Event of Force Majeure has not occurred. In
the event of any dispute as to whether any particular event constitutes an Event of
Force Majeure, the dispute shall be referred to the Dispute Resolution Committee
under Clause 42.

41.4 Termination by Force Majeure

If an Event of Force Majeure has occurred and any Party reasonably considers
such Event of Force Majeure applicable to it to be of such severity or to be
continuing for a period of more than six (6) months, then the Parties may mutually
terminate this Contract.

41.5 Consequences of Termination due to Event of Force Majeure

If this Contract is terminated pursuant to Clause 41.4, all rights and obligations
hereunder shall forthwith terminate and neither Party shall have a claim against
each other save and except in respect of any antecedent breach.

41.6 Delay

41.6.1 The Party affected by the Event of Force Majeure shall not be liable for
any delay in performing its obligation under this Contract to the extent
that such delay has been caused by one or more of Event of Force
Majeure and the time for completion of any obligation under this
Contract and the Contract Period shall be extended by a period equal to
the delay arising as a consequence of the Event of Force Majeure
PROVIDED THAT the Party affected by the Event of Force Majeure has
complied with the requirement to provide notice in accordance with
Clause 41.2. If the Parties do not agree as to the term of extension, the

63
 dispute shall be referred to the Dispute Resolution Committee under
Clause 42.

41.6.2 Notwithstanding Clause 41.6.1, if the continuing occurrence of an Event

of Force Majeure is of such severity that it frustrates the original
intention and objective of the Parties, the Parties shall forthwith take
steps to discuss the circumstances and the consequences of such event
and shall consider how best to achieve the objectives and shall, if
appropriate, give consideration to any amendment of this Contract and
the terms and conditions of such amendments.

41.7 Restoration

Notwithstanding any other provision in this Contract, if an Event of Force Majeure

occurs and this Contract is not terminated then in any case where the Site or any
part thereof has been destroyed or substantially damaged, the Contractor shall
restore such damaged parts of the Site to the condition in which it was
immediately prior to the occurrence of that Event of Force Majeure at its own
expense. Where as a result of such restoration the Contractor is able to
demonstrate that it has incurred substantial cost affecting the Site, the Contractor
may apply to the Government for an extension of the Contract Period as the case
may be.

41.8 Insurance

Notwithstanding any other clause, the Contractor shall, wherever practicable

ensure that insurance is to be effected to cover the occurrence of any Events of
Force Majeure, PROVIDED THAT such Events of Force Majeure are insurable.

42. RESOLUTION OF DISPUTE

42.1 Dispute Resolution Committee

64
 Any matter, dispute or claim between the Parties in respect of any matter under
this Agreement shall be settled amicably through mutual consultation or
negotiation between the Parties. Should the Parties fail to achieve an amicable
settlement, the matter, dispute or claim may be referred by either Party to a
dispute resolution committee (the “Dispute Resolution Committee”) consisting of:-

(i) Ketua Pengarah Kerja Raya Malaysia or his representative as Chairman;

(ii) two (2) representatives appointed by the Government; and

(iii) two (2) representatives appointed by the Contractor.

42.2 Independent Expert

The Dispute Resolution Committee may appoint an independent expert in the

relevant field or in each of the relevant fields (if there is more than one field) to
advise it on any matter to it and all costs, fees and expenses of any independent
expert so appointed shall be borne equally by the Parties.

42.3 Determination of Procedures

(i) The Dispute Resolution Committee shall determine its own procedures.

(ii) The Dispute Resolution Committee shall meet and endeavour to achieve an
amicable settlement between the Parties in respect of any dispute referred
to it.

(iii) If any matter, dispute or claim which is referred to the Dispute Resolution
Committee cannot be agreed by the Parties hereto within thirty (30) days or
any extended days as the Dispute Resolution Committee may determine
after the date of referral, any Party may refer the matter, dispute or claim to
arbitration pursuant to Clause 43.

65
43. ARBITRATION

43.1 Reference to Arbitration

Save in respect of Clauses 39, 40, and 41, any matter, dispute or claim arising out
of or relating to this Contract or the breach or termination hereof which cannot be
agreed upon by Parties, or cannot be settled amicably by the Parties, that matter,
dispute or claim shall be referred to an arbitrator to be agreed between the Parties
or failing agreement, to be nominated on the application of either Party by the
Director General of the Regional Centre for Arbitration in Kuala Lumpur and such
reference shall be deemed to be a submission for arbitration within the meaning of
the Arbitration Act 2005 [Act 646]. The decision of the arbitrator shall be final and
binding on each of the Parties.

43.2 Venue

Any such arbitration shall be heard at the Kuala Lumpur Regional Centre for
Arbitration (hereinafter referred to as the “Centre”) using the facilities and systems
available at that Centre and in accordance with the Centre’s rules for Arbitration.

43.3 Continuing Obligations

The reference of any matter, dispute or claim and/or the continuance of any
arbitration proceedings shall in no way operate as a waiver of the obligations of
the Parties to perform their respective obligations under this Contract.

44. STEP IN RIGHTS OF THE GOVERNMENT

44.1 In the event of the occurrence of a matter which the Government considers affects
the national interest, national security, public policy, or a serious risk exists which
affect the health or safety of persons or property or the environment of the Site, the
Government shall have the right to step in and carry out or continue all or any part
of the FMM Services in place of the Contractor for such period as deemed fit by
the Government.

66
44.2 For the purposes of this Clause, except for “serious risk” which is to be interpreted
and determined in accordance with the Occupational Safety and Health Act 1994
[Act 514], what constitutes “national interest”, “national security”, and “public
policy” shall be solely determined by the Government and such determination shall
for all intents and purposes be final and conclusive and shall not be open to any
challenge whatsoever.

44.3 In no event shall the Government’s exercise any of its rights pursuant to Clause
44.1 shall be deemed to be a transfer of the Contractor’s obligations under this
Contract to the Government.

44.4 During such period as described in Clause 44.1—

(a) the Government shall not be liable to the Contractor—

(i) for any payment of the FMM Services;

(ii) for any claims or demands of any kind resulting from any accident,
damage, injury or death arising from the FMM Services; and
(iii) for any actions, suits, claims, demands, proceedings, losses,
damages, compensation, cost (including legal cost), charges and
expenses whatsoever in respect of or arising from the FMM
Services; and

(b) the Contractor shall continue to perform its obligations under this Contract,
which are not affected by the decision of the Government pursuant to
Clause 44.1, including the obligation to effect and maintain insurances and
Performance Bond.

44.5 The Government shall have the right to allow the Contractor to resume carrying
out the portion of FMM Services taken over by the Government or a third party
appointed by the Government pursuant to Clause 44.1 at any time before the
expiry of the Contract Period or termination of the Contract.

67
44.6 For the purpose of Clause 44.1, the Contractor shall co-operate with the
Government in all matters necessary for the Government to exercise its step in
right or to carry out or continue all or any part of the FMM Services.

45. SUB-CONTRACTING AND ASSIGNMENT

45.1 Sub-Contracting and assignment

The Contractor shall not, without the prior written approval of the FSO, sub-
contract the whole or any part of the FMM Services. Where the FSO consents to
any sub-contracting under this clause such consent shall not in any way absolve
and release the Contractor of its obligations under this Contract. The Contractor
shall also be responsible for the acts, omissions, defaults and/or negligence of any
of its sub-contractors, and their agents, servants or employees as fully as if they
were the acts, omissions, defaults and/or negligence of the Contractor.

45.2 Determination of Sub-Contract

It shall be a condition in all the Contractor’s sub-contracts that upon termination or

expiry of this Contract, the Contractor shall terminate its arrangement with the sub-
contractors and no claim whatsoever shall be made by the sub-contractors against
the Government in the event of the termination or the expiry of the Contract and
sub-contracts.

45.3 Assignment of benefits

The Contractor shall not assign any of its rights, interest, benefits in and arising
out of this Contract without the prior written consent of the FSO.

68
45.4 No privity of this Contract

Nothing in this Contract shall create any privity of contract between the
Government and any sub-contractors engaged by the Contractor for the purposes
of carrying out the FMM Services under this Contract.

45.5 Removal of Contractor’s sub-contractors

45.5.1 In the event the FSO is not satisfied with the performance of any of the
Contractor’s sub-contractor in respect of the FMM Services performed
under this Contract, the FSO may require the Contractor to—

(a) terminate its sub-contractor;

(b) replace the sub-contractor; or

(c) replace any employee or agent of the said sub-contractor.

45.5.2 Any cost or expense incurred in respect of terminating any sub-

contractor, or replacing any sub-contractor or replacing a sub-
contractor's employees or agents pursuant to this Clause shall be borne
by the Contractor.
45.5.3 For the avoidance of doubt, the rights of the Government in this Clause
shall be without prejudice to the Government's other rights against the
Contractor under this Contract or in law.

46. CONFIDENTIALITY

46.1 Non-disclosure

This Contract and all such drawings, records, data, books, reports, Management
Information System and all matters pertaining hereto shall be considered as
confidential matter and shall not be disclosed to any third party without prior
mutual agreement except where −

69
 (a) the disclosure of such information is necessary for purposes of raising
finance;

(b) the disclosure of such information is made to the Contractor or advisors for
purposes of performance of their duties under this Contract; or

(c) the disclosure of such information is required by law or by any Government

agency for the performance of any obligation under this Contract.

46.2 Non-disclosure by Third Parties

Where any information has been disclosed to third parties pursuant to Clauses
46.1 (a) or (b), the Contractor shall undertake to ensure that the third parties shall
not disclose the information to any other third party.

46.3 Survival

The restrictions contained in this clause shall survive the termination or expiry of this
Contract and shall continue to bind both Parties without limit in point of time.

47. SURVIVING RIGHTS

The expiry or termination of this Contract shall not affect—

(a) the liability of either Party for any of its acts or omissions prior to the expiry
or termination of this Contract; and

(b) the accrued rights of either Party acquired before the expiry or termination
of this Contract.

70
48. COMPLIANCE WITH LAWS

The Contractor shall comply with the provisions of any written law including any
Act, Enactment or Ordinance, or any By-Laws, Rules, Regulations or other
subsidiary legislation under any such Act, Enactment or Ordinance, or any
direction, order, requirement or instructions whatsoever given by the Government
or any authority competent to do so under any written law.

49. STAMP DUTY, ETC.

All costs for and incidental to the preparation and completion of this Contract,
including stamp duties and legal fees, shall be borne and paid by the Contractor.

50. AMENDMENT

No modification or amendment shall be valid or binding upon the Parties unless it

is made in writing by way of a supplementary agreement specifically referring to
this Contract and duly signed by the Parties or its duly authorised representatives.

51. NOTICES

51.1 Any notice, approval, consent, request or other communication required or

permitted to be given or made under this Contract shall be in writing in Bahasa
Malaysia or the English language and delivered to the address or sent to the
facsimile number of the Parties, as the case may be, shown below or to such other
address, facsimile number as the party may have notified the sender and shall be
deemed to be duly given or made in the case of delivery in person, when delivered
to the recipient at such address or by facsimile transmission, when the recipient’s
facsimile number is shown on the sender’s print-out for the transmission regarding
the date, time and transmission of all pages—

To the Government

Address :

71
 Facsimile no. :

To the Contractor

Address :
Facsimile no. :

51.2 Such notice shall be effected by—

(a) hand delivery or courier and an acknowledgement of receipt obtained;

(b) leaving the notice at registered office and Site Office in which case it shall
be deemed to have been duly delivered; or

(c) registered post in which case it shall be deemed to have been received
seven (7) days after the date of posting.

51.3 It shall be the duty of the parties to notify the other if there is a change of address
or entity by giving a written notice within fourteen (14) days.

52. TIME OF THE ESSENCE

Time wherever mentioned in this Contract shall be of the essence.

53. APPLICABLE LAWS

This Contract shall be governed by and construed in accordance with the laws of
Malaysia and the Parties hereby submit to the exclusive jurisdiction of the
Malaysian courts.

72
54. WAIVERS

Failure by any Party to enforce, at any time, any provision of this Contract shall not
be construed as a waiver of its right to enforce the breach of such provision of any
of the provision in this Contract or as a waiver of any continuing, succeeding or
subsequent breach of any provision or other provision of this Contract.

55. FURTHER ASSURANCES

The Parties shall at all times and from time to time do all such further acts and
execute all such further deeds, documents and instruments as may be necessary
or desirable in order to give full effect to and carry out the terms and conditions of
this Contract.

56. RELATIONSHIP OF THE PARTIES

Nothing in this Contract shall be construed as establishing or creating a

partnership or a relationship of master and servant between any of the Parties and
none of them shall have any authority to bind the other in any way nor shall this
Contract be construed to constitute any party the agent of the other Party.

57. SEVERABILITY

If any provision of this Contract is held to be illegal or invalid or unenforceable

under present or future laws or regulations effective and applicable during the
terms of this Contract, such provision shall be fully severable and this Contract
shall be construed as if such illegal or invalid provision had never comprised a part
of this Contract and the remaining provisions of this Contract shall remain in full
force and effect and shall not be affected by the illegal or invalid provision by its
severance from this Contract.

73
58. TAXES

The Contractor shall pay all taxes and duties including but not limited to income
and corporation taxes payable by the Contractor in accordance with the laws of
Malaysia.

59. APPENDICES

All appendices and/or schedule to this Contract shall form part of this Contract.

60. ENTIRE CONTRACT

This Contract constitutes the entire agreement between the Parties with respect to
the matters dealt with herein and supersedes any previous agreement or
understanding between the Parties in relation to such matters. The Parties hereby
acknowledge that in entering into this Contract, it has not relied on any
representation or warranty save as expressly set out herein or in any document
expressly referred to herein.

61. SUCCESSORS BOUND

This Contract shall be binding upon the Parties hereto and their respective
successors-in-title and permitted assigns.

62. CUSTODY OF DOCUMENT

This Contract shall be executed in two (2) original copies which shall remain in the
custody of the Government and the Contractor.

--------------------------------------------------------------------------------------------------
End of clauses

74
IN WITNESS WHEREOF this Contract has been executed by the duly authorised
representatives of the Parties on the day and year first above written.

Signed for and on behalf of )

THE GOVERNMENT OF MALAYSIA )
)
)

…………………………………………

in the presence of

……………………………………………

Common Seal of the Contractor )

(Company No: …) )
was hereunto affixed in the presence of )

…………………………………………… ………………………………………..

Director Director/Secretary

75
76
 APPENDIX 5

APPENDIX TO THE CONDITIONS OF CONTRACT (FMM2016)

Clause

34 Officer(s) empowered to take

action on behalf of the
Government in respect of:

35,36,37,39, and 40 ...............................................

29.3 Officer empowered to approve

instructed variations according
to the limits as set out in
Treasury’s Instructions No. 202
as amended

Financial Limits Officer

6 Performance Bond

Amount of Guarantee RM ................................…

Guarantor Bank/Insurance Company ...........................…….

Guarantee No ....................................

18. Amount to be added to full

value of Contract Sum
as the insured sum RM ....................................

Total Amount Insured RM ...............………………

Policy No ................................….

Period of insurance .............................…….

18.1.2 Amount of excess ……………………… RM .....................................

77
 APPENDIX 5

Clause

19 Minimum insurance cover for any one

accident or series of accidents
arising out of one event RM ...................................

Policy No .........................……...

Period of insurance ............………………..

19.1.2 Amount of excess RM ....................................

18.4
19.3
23.2.2 Percentage of on-cost charges 5%

38.2(c) Percentage of on-cost charges 10%

78