Projject Consultancy and Service Agreement by Gupta


? Were project objectives and deliverables/outputs achieved?
? Was the project completed on time and within budget?
? Was the quality of work satisfactory?
? Was there an appropriate amount of skills transfer from the
consultant to officials?
On completion of a consultancy, it is also useful for the Department, as
part of its wider evaluation of the project, to discuss with the consultants.
17.  What should normally be included in the Consultancy Project
? a clearly specified fee for the project;
? cost structure, time scale(s) and payment arrangements ? the
latter closely tied to the deliverables (outputs) of the project;
? ownership of deliverables/reports/software etc.;
? an  ?early termination? clause ? this clause should state that where,
at any time during the project, the work, being undertaken by the
consultants, is found to be unsatisfactory by the client Department
? the project may be terminated early, without the Department
being liable for the full costs;
? a schedule of tasks and deliverables (outputs);
? the requirement for Department of Finance sanction, where
? definitions of the terms used (i.e. department, contract, daily fee
? project management/reporting arrangements which must be fol-
lowed, including mechanism for monitoring skills transfer;
? a no poaching clause, where relevant (e.g. work is undertaken on
the understanding that consultants will not make offers of employ-
ment to or engage any employee of the Department unless they
have first obtained the Department?s written consent for a period
to be specified in the contract);
? a statement in relation to confidentiality.
1 1 1 1 1
Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super Project Consultancy Agreement for setting up Super
Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis Thermal Power Project on turn-key basis
THIS AGREEMENT made this???.. day of????. Two thousand??.
Company incorporated under the Companies Act, 1956 having its regis-
tered office at ????????????. (hereinafter referred to as
?OWNER? or  ?NTPC? which expression shall include its administrators,
successors, executors and permitted assigns) of the  ONE PART AND
pany incorporated under the Companies Act, 1956, having its registered
office at ????????. (hereinafter referred to as the  ?CONTRACTOR?
or  ?GRSE?, which expression shall include its administrators, successors,
executors and permitted assigns of the OTHER PART.
WHEREAS NTPC desirous of setting up its Super Thermal Power Project
at ????. with an ultimate capacity of 2260 MW (hereinafter called ?the
Project?) had invited bids on domestic competitive bidding basis for design,
engineering, manufacture, shop-testing, inspection and testing at
manufacture?s works, packing, despatch, transportation, erection including
all associated electrical, civil and structural works, testing and commission-
ing including performance testing and handing over of Coal Handling Plant
(Part-A) Package for the second stage of the Project  with the capacity of
2 x 500 MW, as per its bid specification No.??..
AND WHEREAS GRSE had participated in the above referred Domestic
Competitive Bidding by putting forward their Offer or Proposal (read with
subsequent amendments/modifications/alteration/deletion/addition and/or
deviations, being the integral part of the Contract Documents as enumer-
ated in the SCHEDULE ? ?A? hereto).
AND WHEREAS NTPC had accepted the aforesaid Offer/Proposal of GRSE
and issued a Letter of Award No.??, dated??.. on terms and conditions
contained therein (read with all other documents referred to therein as also
mentioned in the SCHEDULE ?A? hereto and hereinafter  referred to as ?the
Contract Documents?.
AND WHEREAS as per General Terms and Conditions of Contract the
parties hereto are required to execute a formal agreement in line with the
Contract documents and the Letter of Award referred to herein.
1. Definitions.?Unless otherwise provided herein the terms or expres-
sions used in the context shall be construed to convey the same meaning
as assigned to them respectively in the Contract Documents mentioned in
the SCHEDULE ?A? hereto.
2. Award of Contract.?In consideration of payment of an all-inclusive
price or lump-sum contract price hereinafter mentioned for the complete
scope of works as described in its Letter of Award No. ??? dated ??..,
read with the Contract Documents and also in Article 6 mentioned below
and upon the terms and conditions, including all modifications, alterations,
variations or revocations thereof, as fully described in the ContractCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 923
documents enumerated in the Schedule ? ?A? annexed hereto, NTPC has
awarded to GRSE the Letter of Award No.???., dated???.., forming
integral part of the Contract documents.
3. Contract Document.
3.1.  The term ?Contract Documents? shall mean all such documents as
are enumerated in clause 2.1(a) to (e) of the General Terms and Conditions
of Contract of the Bid documents and shall include the documents
described in the SCHEDULE  ?A? hereto and also such other documents,
minutes, correspondences etc. forming mutual consent over issues relating
to this contract either inadvertently or otherwise not included in the
SCHEDULE ? ?A? hereto but forming integral part of this agreement.
3.2.  The several documents forming part of the Contract documents are
to be taken as mutually explanatory of one another and in case of
repugnancy or inconsistency or conflict between the provisions contained
in the same document or between any two or more documents the
provisions which have been mutually agreed upon or shall be deemed to
have been mutually agreed upon by and between the parties shall prevail.
4.  Letter of Award.
4.1. The Letter of Award shall mean NTPC?s Letter of Award No.  ????
dated??? forming integral part of Contract Documents and this Agree-
ment and is designated as Volume VII in the SCHEDULE ? ?A? hereto.
5. Construction of Agreement.?This agreement is subject to the
terms, conditions and stipulations embodied in the relevant Bid documents,
Price-bid proposal and the Letter of Award (including any agreed variations
and/or modifications thereof and also other Contract Documents) and it
shall supersede all such provisions of the Contract Documents as are
repugnant to each other or amount to unilateral acts, conditions or
stipulations inconsistent with the Bid documents or the Price-bid proposal
(including any agreed variations and/or modifications thereof) made by
either of the parties, or have not been specifically agreed upon.
6.  Scope of Work.
6.1.  The scope of work under this Agreement shall include design,
engineering, manufacturing, shop-fabrication, assembly, testing and in-
spection at manufacturer?s works, packing and despatch of equipments/
materials including Mandatory Spares under Coal Handling Plant (Part ?
A) Packing and supply of Special Tools and Tackles (if any) for ?????.
Super Thermal Power Project, Stage II (2 x 400 MW), more fully described
in the Contract Documents entitled ?Technical Specifications? designated
as Volume II in the SCHEDULE ? ?A? hereto.
6.2. The scope of the work shall also include supply of all such items
which are not specifically mentioned in the Contract Documents, but which
are needed to make the equipment/system complete in all respect for its
safe, reliable, efficient and troublefree working/operation, unless otherwise924 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
specifically excluded in the specifications under ?Exclusions? or Letter of
6.3. In the event of the NTPC requiring any variation, a reasonable and
proper notice shall be given to GRSE to enable it to work its arrangements
accordingly, and in cases where goods or materials are already prepared
or any design, drawings or pattern made or work done requires to be
altered, a reasonable and agreed sum in respect thereof shall be paid to
the Contractor/GRSE by the Owner/NTPC.  GRSE shall carry out such
variations and be bound by the same conditions, as though the said
variations occurred in the Contract Document and the Contract Price shall
be adjusted at the rates and the price provided for the original quantities
in the Contract.
6.4. If any alterations, amendments, omissions, suspensions or varia-
tions of the Works would, in the opinion of the Contractor/GRSE, if carried
out, prevent the Contractor/GRSE from fulfilling any of its obligations or
guarantee under the Contract, the Contractor/GRSE shall notify the Owner/
NTPC thereof in writing and the Owner/NTPC shall decide forthwith,
whether or not the same shall be carried out and if the Owner/NTPC
confirms its instructions, Contractor?s/GRSE?s obligations and guarantee
shall be modified to such an extent as may be mutually agreed. Any agreed
difference in cost occasioned by any such variation shall be added to or
deducted from the Contract prices as the case may be, on the basis of the
guidelines contained in the Contract Documents, PROVIDED HOWEVER in
cases where goods or materials are already prepared or any design,
drawings or pattern made or work done requires to be altered, a reasonable
and agreed sum in respect thereof shall be paid to the Contractor/GRSE.
6.5. The time for the completion of the work shall be altered in the
proportion that the altered, added or substituted work bears to the original
contract work.
7.  Suspension of Work.
7.1.  NTPC reserves the right to suspend and reinstate execution of the
whole or any part of the Works without invalidating the Provisions of the
Contract. The time for completion of the Works will be extended for a period
equal to duration of the period of suspension.
7.2.  Any necessary and demonstrable costs incurred by GRSE as a
result of such suspension of the Works will be paid by NTPC, provided such
costs are substainted to the satisfaction of NTPC.  NTPC shall, however,
not be responsible for any liabilities if suspension or delay is due to some
default on the part of GRSE or its sub-contractor.
8.  Time Schedule.
8.1. Time is the essence of the Contract and schedules shall be strictly
adhered to.  The Contractor/GRSE shall perform the work in accordance
with the agreed schedule as given in the Contract Documents, subject to
Force Majeure conditions as provided hereinafter.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 925
8.2. In case  the Contractor?s/GRSE?s performance is delayed due to
any act of omission on the part of the Owner/NTPC or its authorised agents,
then the Contractor/GRSE shall be given due extension of time for the
completion of the Works, to the extent such omission on the part of the
Owner/NTPC has caused delay in the Contractor?s/GRSE?s performance
of its work.
8.3. In addition, the Contractor/GRSE shall be entitled to claim demon-
strable and reasonable compensation if such delays have resulted in any
increase in the cost. The Owner/NTPC shall examine the justification for
such a request for claim, and if satisfied, the extent of compensation shall
be mutually agreed depending upon the circumstances at the time of such
an occurrence.
8.4. The time for the completion of the work shall also be subject to the
provisions of Clause no. 6.5 and 7.1 of these presents.
9.  Contract Price.?The total lump sum contract price for the entire
scope of work under the Cotnract, as per break-up shown in clause 4.0 of
the Letter of Award is Rs.???.. (Rupees ???? only).
9.1. It is clealry understood that the total consideration for the Contract
has been broken up into various component only for the convenience of
payment of advance under the Contract and for the measurement of
deviations or modifications under the Contract.
10. Construction of Contract.
10.1.  Notwithstanding the identification of the entire work, under the
Coal Handling Plant (Part-A) package for…..?? Super Thermal Power
Project, Stage II (2 x 500 MW), as divisible   ?Supply Contract? and  ?Erection
Contract?, GRSE shall be solely responsible for the successful completion
of the entire work and for performance of the entire system as per Contract
Documents described in the SCHEDULE ? ?A? hereto.
10.2.  It is expressly understood and agreed by GRSE that the contract
is awarded to GRSE on single source responsibility basis and breach in
any portion or part of one contract shall be construed as a breach of the
other contract, which will confer on NTPC the right to terminate the other
contract at the risk and cost of GRSE.
11. Quality Plans.
11.1.  GRSE is responsible for the proper execution of the Quality Plans
as and when approved by  NTPC.  Quality Assurance Programme and
Procedures as contained in the Contract Documents shall be strictly
followed by GRSE.
11.2.  GRSE agrees to provide NTPC with the necessary facilities for
carrying out inspection, quality audit and quality surveillance of GRSE?s and
its sub-contractor?s Quality Assurance Systems and manufacturing activi-
ties in line with the Contract Documents.926 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
11.3. It is expressly agreed to by  GRSE that the quality tests and
inspection by NTPC shall not in any way relieve GRSE of its responsibilities
for quality standards, performance guarantee and its other obligations
under the Contract.
11.4. GRSE agrees to submit Quality Assurance Documents package
to NTPC for review and record after completion of despatch of materials
and within the time period scheduled in the Contract Documents.
12. Performance Guarantee & Liquidated Damages.
12.1. The Contractor/GRSE guarantees that the equipment package
under the contract shall meet the ratings and performance parameters, as
stipulated in the Contract Documents and in the event of any deficiencies
found in the requisite performance figures, the Owner/NTPC may at its
option reject the equipment package or alternatively accept it on such terms
and conditions as deemed fit and proper and subject to levy of the liquidated
damages in terms of the Contract. The amount of liquidated damages as
leviable shall be in accordance with the Contract Documents and without
any limitation.
12.2.  It is expressly agreed to by the Contractor/GRSE that the Contract
Performance Guarantee shall in no way be construed to limit or restrict the
Owner?s/NTPC?s right to recover the damages/compensation due to
shortfall in the equipment performance figures as stated in the Contract
Documents.  The amount of damages/compensation shall be recoverable
either by way of deduction from the Contract Price, Contract Performance
Guarantee and/or otherwise.
12.3.   The Contract Performance Guarantee furnished by the Contrac-
tor/GRSE is irrevocable and unconditional and the Owner/NTPC shall have
the powers to invoke it notwithstanding any dispute or difference between
the Owner/NTPC and the Contractor/GRSE pending before any Court,
Tribunal, Arbitrator or any other Authority.
13. Waiver & Estoppel.
13.1.  The failure of either party to enforce at any time any of the
provisions of this Contract or any rights in respect thereto or to exercise
any option herein provided, shall in no way be construed to be a waiver of
such provisions, right or options or in any way to affect the validity of the
Contract. The exercise by either party of any of its rights herein shall not
preclude or prejudice either party from exercising the same or any other
right it may have hereunder.
14. Force Majeure.
14.1.  The Contractor/GRSE or the Owner/NTPC shall not liable for
delays in performing its obligations resulting from any force majeure cause
as referred to and/or defined in the Contract Document.
14.2.  The date of completion will, subject to force majeure conditionsCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 927
be extended by a reasonable time even though such cause may occur after
Contractor?s/GRSE?s performance of its obligations has been delayed for
other causes.
15. Settlement of Disputes.
15.1.   It is specifically agreed that all disputes or differences whatsoever
arising out of this Contract between the parties whether during the progress
of the work or after its completion, shall be settled in accordance with the
stipulations of Office Memorandum No. ????.. dated ?? of Govern-
ment of India, Ministry of Industry, Department of Public Enterprises.
16. Commencement of Contract.
16.1.  This agreement is supplemental to the Letter of Award No.  ???.
dated….?. and shall be considered as having come into force from the date
of acceptance of the Letter of Award.
17. Governing Laws & Jurisdiction of Contract.
17.1.  This Contract shall be governed by the Indian Laws and Rules
as amended from time to time.  The Courts of KOLKATA alone shall have
exclusive jurisdiction in all matters arising under this Contract.
18. Notice of Default.
18.1.  Notice of default given by either party to the other party under the
Contract shall be in writing and shall be deemed to have been duly and
properly served upon the parties hereto if delivered against acknowledge-
ment or by telex or by registered mail with acknowledgement due addressed
to the signatories at the addresses mentioned above.
Contract Documents shall mean and include the following:
1. NTPC?s Bid Documents in respect of Specification No.??? issued
vide its letter No.???? dated??.., read in conjunction with the
amendments/clarifications issued thereto, consisting of:
(a) Invitation to Bid including Letter forwarding the Bidding Documents
Ref.  No.????.. dated ???., Instruction to Bidders, General
Terms & Conditions of Contract and all other Sections, entitled
?Conditions of Contract? along with its Amendment/Errata No.  1.
This document is annexed and is designated as Volume I.
(b) Special Conditions of Contract along with its Amendment No.  1
issued vide letter No.??? dated ??.. This document is an-
nexed hereto and is designated as Volume IA.
(c) NTPC?s Technical Specifications along with its Amendment No.  1,
2, 3 & 4 to Technical Specifications issued vide letter No.??..
dated?…….? This document is annexed hereto and is desig-
nated as Volume II.928 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(d) Clarifications to bid documents issued  vide Letter No.?? dated?.
This document is annexed hereto and is designated as Volume III.
2. GRSE?s proposal submitted  vide letter No.?…….? dated….??
along with Proposal sheets, Data requirements, Payment terms, Work
schedule, etc., submitted by GRSE entitled as ?Proposal?. This document
is annexed hereto and is designated as Volume IV.
3. Correspondence between the GRSE and NTPC subsequent to the
date of opening of the bid and up to the date of issue of the Letter of Award
which has been specifically referred to in the Letter of Award.  This document
is annexed hereto and is designated as Volume V.
4. Agreed Minutes of the meeting held during the period from???. to
?……… between NTPC and GRSE. This document is annexed hereto and
is designated as Volume VI.
5. Quality Plans (Quality Plans as and when finalised shall form an
integral part of the Contract).
6.  Network (PERT Chart). This document is annexed hereto and is
designated as Volume VIII.
7. Letter of Award No.?????. dated?????.., and any other
document or documents referred to therein but not included in Serial Nos.
1 to 6 of this Schedule ?A?.
IN WITNESS WHEREOF the parties hereto through their duly authorised
representatives have executed these presents (execution whereof has
been approved by the competent authorities of both the parties) on the day
month and year first above written.
For and on behalf of NTPC
(Owner?s Signature)
(Printed Name)
M/s.   NORTON  THERMAL POWER CORPORATION LTD.  through their authorised
representative  SRI??????…………..??????……………………
??????……? (Designation).
In the presence of
For and on behalf of M/s. GRSE
(Contractor?s Signature)
authorised representative SRI ????????…………………….????.
?????……….?? (Designation)
In the presence of
2 2 2 2 2
Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on Tie-up Agreement for Project Consultancy Services on
case-to-case basis case-to-case basis case-to-case basis case-to-case basis case-to-case basis
THIS AGREEMENT made this ??.?. day of ?..??. Two thousand
GINEERS LTD., a Company incorporated under the Companies Act, 1956
having its registered office at ????? (hereinafter called ?GRSE? which
term or expression shall unless repugnant to the subject or context be
deemed to include its successors-in-interest, executors and permitted
LIMITED, a Company incorporated under the Companies Act, 1956, having
its registered office at ??…??? (hereinafter called  ?NICCO? which term
or expression shall unless repugnant to the subject or context be deemed
to include its successors-in-interest, executors and permitted assigns) of
WHEREAS NICCO intends to enter into contracts with diverse Purchasers
for execution of turn-key projects in respect to Design, Engineering,
Manufacture, Erection and Commissioning of Coal Handling Plants for
Thermal Power Projects (hereinafter called ?the PROJECT?).
AND WHEREAS GRSE is in possession of extensive technical know-how,
processes, formulae and secret techniques and technical information
concerning the planning, design, engineering, construction, commission-
ing and operation of such Projects and has at its disposal skilled technical
personnel to assist and intending associate with such technical know-how
and technical information for execution of such projects.
AND WHEREAS the NICCO is desirous of acquiring from GRSE the said
technical know-how, technical information and assistance for the purpose
of execution of its various projects for diverse Purchasers and the GRSE
is willing and agreeable to become an associate with and assist NICCO
in the execution of such Projects by providing to NICCO feed-back
consultancy services and the necessary technical know-how for the system
G : CDD (Vol. 8) ? 59930 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
design, detailed engineering and necessary checking and approval of
drawings and documents as per the respective scopes of work defined in
the SCHEDULE marked as ANNEXURE hereto.
by and between the parties hereto as follows:
1. For the purpose of this Agreement, the terms set forth hereunder
(either in the singular or plural form) are defined to mean, unless the context
requires otherwise, as follows:
(a) ?The Project? means Coal Handling Plants of 1000 TPH capacity
and above for Thermal Power Projects;
(b) ?The Technical know-how? means and includes?
(1) engineering and manufacturing information available with
GRSE relating to system design, planning, construction,
erection, commissioning, testing of such plants as well as
information relating to materials used in the manufacture
thereof and the manufacturing or engineering technique of
the GRSE being applicable to the operations of the NICCO;
(2) design, engineering blueprints, plant layout, plans, specifica-
tions, drawings, data, information and documents relating to
the said Project or the plant utilities;
(3) technical information and other data whether patented, pat-
entable or not, relating to the said Projects, processes,
formulae, design or technique of which the GRSE is the
(4) any other technical information or instructions as may be
considered necessary for the purpose of the installation of the
said projects.
(c) The term  ?improvements? means future innovations, improve-
ments or modifications relating to the design, production methods,
manufacture and testing process of the said projects;
(d) The term  ?effective date of the agreement? means the date on
which this agreement is executed or deemed to have been
executed by the parties hereto;
(e) The term ?date of commencement period of the order? means the
date of receipt of technically and commercially clear order by
2. On and from the effective date of this agreement until its determination
in the manner provided hereinafter for all tenders in which NICCO will
participate or submit its bids, GRSE shall issue specific tie-up letter of
consent on case-to-case basis addressed to NICCO signifying its assent
to the above association within the scope of the work agreed hereunder
in the performance of the contract by NICCO, in the event an order will beCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 931
placed by NICCO on GRSE after receipt of order by NICCO from the
prospective Purchasers.
3. The GRSE shall as soon as may be reasonably practicable or as might
be stipulated in the order to be placed by NICCO upon GRSE and at the
written request of the NICCO in that behalf, transmit its technical information
to the NICCO as set forth in clause 4 hereinafter as also those specified
in the ANNEXURE I hereto.
4. (1) During the term of this agreement and so long as the NICCO shall
duly perform and observes its obligations hereunder, GRSE shall provide
the NICCO with such further information and technical know-how and
improvements pertaining to the planning, layout, design, engineering and
commissioning of the projects or concerning modifications or improve-
ments in or to the said technical know-how or the said project.
(2) Nothing contained in sub-clause (1) of this Clause shall be construed
as requiring the GRSE to furnish or disclose to the NICCO any information
or data which is prohibited from transferring or disclosing by virtue of any
restriction or obligation under other agreements or which the GRSE is
prohibited from transferring or disclosing under the laws and regulations
for the time being and from time to time in force in the country.
(3) Subject to respective scopes of work agreed hereunder and
contained in the ANNEXURE-I hereto, the time and extent of the supply
or transfer of the technical information and improvements will be mutually
determined by the progress of the NICCO in the process of execution of
its various projects from time to time.
(4)  The GRSE confirms that the technical information that will be
transmitted by the GRSE under this agreement is sufficient to permit the
execution of the said projects for its diverse clients by NICCO as contem-
plated under the provisions of this agreement.
5. Subject to the availability of sufficient surplus capacity of the GRSE,
the GRSE undertakes further developments in the original technology in
the design and layout and their application in the implementation of the
various projects by NICCO and to render necessary technical advice and
assistance for the adaptation of the designs, drawings and other technical
data furnished by the GRSE to the NICCO according to the Indian
6. (1) The GRSE shall depute at the request of the NICCO its trained
technical personnel as and when required by the NICCO to assist the
NICCO in the setting up of the projects and/or commissioning of the plant
as also to train the technical personnel of NICCO, if necessary.
(2) The NICCO shall bear and pay all travelling, living and medical
expenses of all or any of the personnel so deputed by the GRSE at the rate
as may be settled between the parties at the time or times of placing specific
order/s on case-to-case basis.932 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(3) The technical personnel so deputed by the GRSE shall remain
employees of the GRSE but while working in the project site of the NICCO
or any other third party, they shall be subject to all the rules and regulations
of the NICCO or the third party as applicable to their respective employees.
7.  (1)  The NICCO shall communicate to the GRSE any new technological
improvements in the method or process of project technology received by
NICCO from the GRSE and the GRSE shall have the right to use such
modifications or improvements in connection with its own operations in
other field.
(2) If the NICCO shall obtain any patents or designs on such improve-
ments or modifications in the original methods and technology received
from the GRSE, it shall, as and when called upon by the GRSE, grant to
the GRSE licence under such patents and designs on such terms and
conditions as may be mutually agreed upon.
(3) The NICCO shall not, without the consent of the GRSE, grant any
licence to a third party under the said patents except to his subsidiaries or
its parent company or other subsidiaries of such parent company.
8. GRSE hereby covenants with NICCO.
(1) that the GRSE shall, provided that the GRSE is entitled so to do,
communicate to the NICCO any modifications, improvements or
additions to the design which the GRSE may acquire invent make
or discover and shall save as hereinbefore provided permit the
NICCO to use and apply the same in the execution of the contract
or contracts that it may enter into with different prospective clients
wherein GRSE will participate;
(2) that the GRSE shall from time to time at the request and expense
of the NICCO send one or more of its employees to the work site
of the NICCO for the purpose of demonstrating the use of any
modifications, improvements or additions to the processes as
aforesaid which the GRSE shall have acquired, invented, made or
discovered or the use of new materials.
9. NICCO hereby acknowledges the GRSE?s exclusive rights.
(a) to the layout plans, designs, technical know-how, date and speci-
fications agreed to be provided hereunder to NICCO;
(b) to all copyrights, trade names and patents now or hereafter applied
for or granted in connection therewith; and
(c) to use and the right to licence others to use the said layout plans,
drawings, designs, technical data and information accruing here-
under to the use thereof by NICCO.
10. The NICCO recognises and acknowledges the exclusive right of
GRSE to grant this licence and to grant licences to others to use the method
and to conduct business with the technical know-how herein agreed to be
11. Subject as hereinafter provided the know-how made available
pursuant to this agreement shall be retained in strict confidence by NICCO
and anyone using it under this agreement and shall not be disclosed to or
used by any other party, person, company or otherwise for any purpose
other than the planning, design, engineering, construction, start-up or
operation of the plant and expansion thereof.   The know-how may be
disclosed to officers, employees, contractors and sub-contractors of NICCO
to the extent required in each particular instances for the performance of
planning, design, engineering, construction or operation as the case may
be PROVIDED that in each case appropriate secrecy shall be maintained
including procedures respecting the transmission of information visits to the
plant and related matters as may be reasonably required by GRSE to
preserve the confidentiality of and GRSE?s proprietary rights in the
technical know-how and to ensure that the know-how shall not be utilised
except as required in the plant and expansion thereof. In the event of a
breach of threatened breach by any party to the above-mentioned condition
NICCO shall take all reasonable steps to prevent any such person from
disclosing or using such know-how except as authorised herein. Notwith-
standing the above, GRSE shall give unrestricted consent upon application
in writing by NICCO to the disclosure and use of documents and information
at any time lawfully required by NICCO or by contractors and sub-
contractors who shall have lawfully received know-how under the foregoing
provisions of this clause in connection with planning, design, engineering
and construction of the plant from a third party pursuant to a bona fide
licence agreement to the extent that the said agreement shall give NICCO
or any such contractor or sub-contractor the right to disclose and use such
documents and information. The application to GRSE shall describe the
general circumstances of the said licence agreement and the manner in
which the documents and/or information overlaps with the know-how.
12.  The provision of clause 11 of this agreement relating to confidentiality
shall survive the termination of this agreement howsoever caused.
13. All documents prepared by GRSE in connection with the works are
the property and copyright of the GRSE and NICCO shall not be entitled,
either directly or indirectly, to make use of such documents for carrying out
of any work beyond the scopes of work to which this agreement relates,
without the prior approval of GRSE.
14.  The NICCO shall not after the termination of this agreement
howsoever the same may be terminated, practice or employ or permit or
cause to be practised or employed the technical know-how disclosed by
the GRSE to the NICCO or the technical knowledge under the provisions
of this agreement.
15. The GRSE shall have the right to terminate this agreement and all
rights and licences hereby granted or to be granted upon happening of one
or more of the following events:934 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
(a) if the NICCO shall make default in the payment of any monies
payable hereunder as and when the same shall become due; or
(b) if the NICCO shall become insolvent; or
(c) if the NICCO shall go into liquidation whether compulsory or
voluntary except for the purpose of amalgamation or reconstruc-
tion; or
(d) if the NICCO shall commit any breach of the agreements and
covenants on the part of the NICCO herein contained and shall
fail to remedy such breach (if capable of being remedied) within
?? days after written notice thereof to NICCO by GRSE speci-
fying the nature of the breach.
Any such termination shall be without prejudice to the rights of GRSE
to recover any monies due to it under this agreement and to the rights or
remedies of either party in respect of any antecedent breach of this
16. The NICCO shall have the right to terminate this agreement if GRSE
fails within ???. days after written notice by NICCO to comply with one
or more of the obligations on the part of the GRSE contained in this
agreement to be observed and performed.
17. Upon the termination of this agreement under clause 15 or 16 of this
agreement the NICCO shall forthwith deliver to GRSE all drawings, written
data and documents of a similar nature supplied by GRSE to NICCO and
which shall be in the possession or under the control of NICCO.
18. NICCO shall supply to GRSE.
(1) All such plans, specifications and essential details, together with
all such pertinent data and technical information with such assis-
tance as shall reasonably be required for the carrying out by the
GRSE of its contractual obligations under this agreement; and
(2) Any other information as may be required  by the GRSE relevant
to the project.
19. The GRSE shall exercise all reasonable skill, care and diligence in
the discharge of the duties agreed to be performed by them, and in so far
as any of their duties are discretionary, shall act fairly as between the client
and the contractor.  Except in an emergency or as may be required by the
NICCO, the GRSE shall not, without the prior approval of the NICCO,
authorise any modification of the works involving a substantial extra cost.
20. Subject as hereinafter provided none of the parties to this agreement
may assign any of its rights or obligations hereunder without the consent
in writing of the other PROVIDED that any party may assign all (but not part)
of its rights and obligations hereunder to a subsidiary of the assignor or to
the assignor?s holding company or to a subsidiary of the assignor?s holding
company on the condition that in the case of any such assignment theCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 935
assignor shall remain fully liable for the performance of its obligations
hereunder and on condition that any such assignee shall assume all of the
obligations of the assignor hereunder.  For the purposes of this agreement
the expressions  ?subsidiary? and  ?holding company? shall respectively bear
the meaning as ascribed thereto by section 4 of the Companies Act, 1956.
21. It shall be lawful for GRSE at any time to take feed-back consultancy
services from any person, firm or company having specialised knowledge
or technical know-how on the job or pertaining to any aspect of the work
covered by this agreement.
22. This agreement shall not operate to constitute either party as the
partner, agent or representative of the other and the parties hereto will not
represent themselves as such agent for each other nor represent them-
selves as having any power or authority to incur any obligation of any nature,
express or implied on behalf of one another and shall not bind or pledge
the credit of one another or attempt or purport to do any of such things.
23. This agreement shall remain valid and binding between the parties
hereto for a period of two years, whereafter this agreement will be subject
to review by both the parties for further extension on mutually agreed terms
PROVIDED  that all contracts to be entered into between the parties pursuant
to  the provisions of this agreement and the liabilities for any work done or
to be done thereunder or the respective liabilities under the scope of work
stipulated hereunder, shall be irrevocable and would continue to be
enforceable and binding until completion of all work, warranty and respon-
sibilities under the said contracts or orders or under this agreement.
24. This agreement is the entire agreement between the parties hereto
as to the subject-matter hereof and no amendments hereto shall be
effective unless in writing and signed by or on behalf of each of the parties.
25. The invalidity or unenforceability of any part of this agreement shall
not prejudice or affect the validity or enforceability of the remainder.
26. GRSE will not be responsible for any delay in the execution of the
project by NICCO as the principal contractor under the terms of any order
to be placed upon NICCO by the Purchaser PROVIDED HOWEVER GRSE
hereby undertakes to perform its obligations under this agreement or under
any order or orders that may be placed upon GRSE by NICCO pursuant
to this agreement, as appropriate to GRSE?s responsibility within the scope
of the work specified in the ANNEXURE ? I hereto.
27. NICCO will be responsible for procurement of various equipment and
items in accordance with the standard and specifications to be laid down
or supplied by GRSE and NICCO shall ensure that the equipment and
material to be supplied against various orders is individually inspected,
tested and analysed in terms of the specifications laid down or supplied
by GRSE and in accordance with the relevant codes and practices specified
together by expression or implication.936 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
28. NICCO should make available to the GRSE and any other individual/
agency authorised by the GRSE for the purpose of inspection of all its
records and results in respect of inspection, tests and analysis conducted
by NICCO as part of their testing and operations under the applicable codes
and practices specified by expression or implication in this regard.
29. If required by the GRSE the NICCO or its sub-contractor shall provide
and deliver free of charge for test/analysis by an independent authority at
any such place or places as the GRSE or its authorised inspector may
reasonably require.  Cost of such raw materials used or intended to be used
for the contracted work by the NICCO as the GRSE or its authorised
Inspector shall consider necessary and the cost of such test/analysis shall
be borne by the NICCO.
30. Should the NICCO fail to comply with any of the provisions contained
in clauses 27 to 29 relating to inspection, testing and/or analysis, the GRSE
shall be entitled by itself and/or through Inspectors to conduct or have
conducted the Inspection, tests and/or analysis at the risk and expenses
of the NICCO in all respects.
31. GRSE shall guarantee that the performance of the plants commis-
sioned under the orders to be received from NICCO shall be strictly in
conformity with the specification, design and within the technical parameter
of the contract and should any defects be noticed in the plants due to faulty
design, specifications or due to incomplete and erroneous instruction
issued by GRSE to NICCO within 12 months from the date of commission-
ing of the plant NICCO shall inform the GRSE and the GRSE shall
immediately on receipt of such intimation, depute their technical personnel
within ?.. days to investigate the causes of defects and arrange rectification
of the defects at the cost of GRSE within a reasonable period.
32. If GRSE fails to meet its obligation to remove the defects within a
reasonable period or refuses to carry out work under the guarantee clause
and implied guarantee conditions, if dangers anticipated or in case of
severe urgency, the NICCO shall be entitled to carry out at GRSE?s cost
and risk, repair work or replacement of the necessary work or have it done
by a third party.
33. Liability of the GRSE under the foregoing clauses 31 and 32 shall
be joint with NICCO and where the causes of failure or defects in the
performance of the plant are not attributable to any defects in the planning,
design engineering or technical data supplied by GRSE to NICCO but the
same are either due to failure on the part of NICCO or any of its agents
or contractors/sub-contractors to make true and correct use of the drawings,
or on account of failure on the part of NICCO to act in accordance to the
specification and technical information and/or instructions supplied by
GRSE or if the failure in the performance is due to any defects in design,
material and/or workmanship in any equipment or machinery used orCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 937
installed in the plant and supplied by any other supplier or suppliers, then
and in either of the events the GRSE will not be responsible for breach of
any covenant for warrant as aforesaid.
34. The GRSE shall keep the NICCO indemnified from and against any
and all claims, actions, demands and proceedings whatsoever brought or
made against the NICCO on the basis of any patent or infringement thereof
claimed or otherwise relating to and arising from any method or process
employed or method or thing done to or in connection with any work
executed by the GRSE under this agreement or any other agreement or
order, and the GRSE shall, at its own risk and expenses defend any suit
for infringement of patent or like suit brought against the NICCO (whether
with or without the GRSE being a party thereto) and shall pay any damages
and costs in such suit, and keep the NICCO indemnified from and against
all consequences thereof.
35. During the continuance of this agreement NICCO will?
(1) Indemnify and keep indemnified the GRSE from and against any
and all loss, damages, liability and legal fees and costs incurred
by GRSE because of:
(a) any act, neglect or default of the NICCO or any of its agents,
employees, licensees or customers in connection with the
work or works agreed to be performed under this agreement.
(b) any other reason so long as such loss, damages, liability, fees
or costs resulted from the licence hereby granted and was not
due to any default of GRSE.
36. None of the parties shall be considered in default for the performance
of their respective obligations under the contract if and so long as such
performance is delayed or prevented by Force Majeure conditions such as
floods, droughts, earthquake, epidemics, cause of any Government author-
ity, domestic or foreign, including but not limited to war (whether declared
or not), quarantine, licensing controls or production or distribution restric-
tion, accidents, destructions including but not limited to fires, explosives,
strikes, lock-outs and sabotage.
If the occurrence of any of the aforesaid  Force Majeure conditions
prevents or delays the fulfillment of the obligations of either GRSE or NICCO
continuously for a period of one month, then the parties should meet and
jointly decide the further course of action to be taken.
37. Waiver by a party hereto of any particular default by the other shall
not affect or prejudice that party?s rights in respect of any other default nor
any subsequent default of the same or of a different kind nor shall any delay
or omission of that party to exercise any right arising from any default affect
or prejudice its rights as to the same or any future default.
38. In consideration of the premises the NICCO shall make payment to
the GRSE the lump sum fee based on the final contract price at the rate
and in the manner specified in ANNEXURE II hereto.938 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
39. All notices, consents and the like given under this agreement shall
be delivered or sent by registered or recorded delivery post addressed to
the other party at its address as herein set out or to such other address
as such party shall declare in writing for that purpose to the other and all
such notices and consents shall be deemed to be given on the day of
delivery if delivered and on that day following the date of posting if sent by
registered or recorded delivery post.
40. If any dispute, difference, question or disagreement shall, at any time
hereafter arise between the parties hereto or the respective representatives
or assigns in connection with or arising out of the contract or in respect of
meaning of specifications, design, drawings, estimates, schedules,
annexures, order, instructions, the construction, interpretation of this
agreement, application of the provisions thereof or anything hereunder
contained or arising hereunder or as to the rights, liabilities or duties of the
said parties hereunder or any matter whatsoever incidental to this contract
whether arising before or after the completion of the work under this contract
which cannot be mutually resolved by the parties, the same shall be referred
to the sole Arbitration of CMD/GRSE or his appointed nominee and the
provision of Indian Arbitration and Conciliation Act, 1996 will apply in such
41. This contract, including all matters connected with this contract shall
be construed and operated as an Indian contract and governed by the
Indian Laws both substantive and procedural, for the time being in force
and shall be subject to the exclusive jurisdiction of the Courts at Kolkata.
IN WITNESS  WHEREOF the parties hereto have, through their authorised
representatives, executed these presents on the day, month and year first
authorised representative  Sri………??………………………………….
……………………..?.?.. (Designation)
In the presence of
TION LIMITED through their authorised representative Sri…???……………
……………………………………………….?.. (Designation)
In the presence of
GRSE?s Scope of Work
I. System Engineering:
1. Preparation and finalisation of System layout on the basis of site
survey documents furnihsed by NICCO, showing co-ordinates and
levels of various  Transfer points, Crusher House underground
Tunnels, reclaim Hopper,  Wagon  Tipler, Control Rooms and
Conveyors etc., so as to fit into the existing/proposed plant layout
of the relevant NIT.
2. Finalisation of material Flow diagram.
3. Preparation of foundation load data Anchor Bolt Plan of whole CHP
system, including location and loads for inserts.
4. Preparation of General Arrangement Drawings, with adequate
details of equipment and conveyor layouts, so that these drawings
would be adequate for design of Civil and Structural Engineering
work independently.
5. Material Schedule (for procurement purpose) for total project,
which are to be prepared at the beginning of the Project on
finalisation of schematic design.
6. Technical evaluation of and recommendations about, various bids
and selection of vendors for various systems.
7. Review and approval of design/drawings furnished by vendors
and/or equipment manufacturers.
8. To ensure fulfillment of anticipated plant performance parameters.
II.  Mechanical.
1. Preparation of outline specification and schematic/layout drawings
and related tender documents for all bought-out and/or fabricated
2. Detail design of conveyors and associated equipments.
3. Drive and tension calculations for conveyor system, and minimum
power requirement for other equipment.
4. Preparation of and Blow-ups and detail drawings of Conveyors,
Belt Feeders, Belt cleaners, Chutes, Drive frames,  Take-ups,
Gates (sliding and flap gate), Pulleys, Drive system etc. as
5. Preparation of all detail drawings for conveyor technological940 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
structures, including all chute work, liners for RCC/Steel bunker/
Chutes, skift board, deck plates etc. and rail fixing arrangements,
as applicable.
III. Civil:
1. Preparation of Civil design criteria and design calculations, and
general arrangement/detailed construction drawings with elabo-
rate dimensions, showing plan, elevations, sections and views as
well as details of various inserts and anchor bolts, based on soil
data furnished by NICCO.
2. Tender documents and preliminary bill of quantities with a variation
of +/- 10%, for finalisation of contract with sub-vendors/for procure-
ment purposes only.
3. Preparation of Bar-bending schedule and material list.
4. Updating of detail drawing based on  ?As built? information received
from NICCO.
IV. Structural:
1. Preparation of structural design, calculations with design criteria
and G.A. drawings.
2. Tender documents and preliminary bill of quantities with a variation
of +/- 10%, for finalisation of contract with sub-vendors/for procure-
ment purposes only.
3. Preparation of fabrication and erection drawings, with elaborate
dimensions, showing plan, elevation, sections, views, joints having
signs and marks of different elements, along with Bill of Materials
against each drawing.
4. Preparation of Bill of quantities along with bulk list (with +/- 10%
variation) for procurement within one month from finalisation of
basic design.
5. Updating of detail drawings based on  ?As built? information
received from NICCO.
V. Electrical:
1. To furnish all such data, as may be required for preparation of
detailed design of electrical system of the plant. Inter-facing
requirements are also to be taken care of.
2. Review and interfacing of drawings, (to be submitted by Electrical
detailer, which shall be arranged by NICCO).
VI.  Dust Extraction System/Pipeline/Air Conditioning:
1. Preparation of layout drawings and basic design parameters/
schemes, based on which detail engineering, manufacturing,
supply, erection and commissioning of these system can be
executed by other agencies.Ch. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 941
2. Review and Inter-facing of drawings, (to be submitted by Vendors,
which shall be arranged by NICCO).
VII. Supply of equipment:
Vendors selection for various equipment and items, and assess-
ment of overall capabilities of the vendors, will be jointly under-
taken by GRSE and NICCO, and the final orders will be placed by
NICCO on approved vendors only.
VIII. General:
1. Preparation of Inter-facing drawings, super-imposing civil, struc-
tural, conveyors, technological structures, mechanical, electricals
and dust extraction system.
2. Co-ordination with Purchaser jointly with NICCO, for getting
approvals for various design calculations/drawings to be prepared
by GRSE, in accordance with this Contract.
3. Submission of revised drawings incorporating comments/improve-
ments, as and when required.
4. Number of prints of each drawings and document shall be
submitted as per requirement of Purchaser, till client?s approval.
Two sets of reproducible prints of each approved drawings to be
finally submitted. Detailed construction drawings not requiring
approval by the Purchaser to be submitted in 5 copies with one
set of reproducible prints.
5. Visit to the site of work, to deal with major design/construction
problems, as appropriate to GRSE?s responsibility.
6. Preparation of operating instructions and maintenance manuals,
for the total system based on manuals/information supplied by
various equipment vendors.
NICCO?s Scope of Work and Responsibility
1. NICCO shall be the principal contractor responsible for the total
execution of the Project, in accrodance with the order placed by
the Purchaser.
2. NICCO shall place firm order on GRSE, as per the mutually agreed
scope of work, as spelt out in this agreement.
3. NICCO will maintain close liaison with the Purchaser in all matters,
for resolving all problems, and thereby expediting project execution
and maintaining the project schedule.
4. NICCO shall similarly also arrange for detail engineering for Air
Pollution Control system package etc. to be carried out.
5. NICCO shall arrange for detail engineering of electrical package
to be carried out.942 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
6. NICCO shall also be responsible for all other work involved in the
projects, including complete erection/commissioning of all
structurals and equipment etc., required for the project, site
supervision, co-ordination etc.  Further GRSE will also be kept fully
informed about all relevant matters to enable GRSE to intervene/
give suggestions to NICCO for satisfactory completion of the
Fees for GRSE?s Scope of Work
For GRSE?s Scope of Work as specified in Part A of ANNEXURE I to
this agreement, NICCO will pay a lump sum fee of 2.75% of the final contract
price to GRSE and the payment terms shall be as follows:
10% as an advance against Bank Guarantee for equivalent amount.
40% pro rata payment will be made to GRSE on submission of drawings.
40% pro rata payment will be made to GRSE against approval of
drawings by the Purchaser.
10% after successful commissioning of the plant or after the contractual
date of completion whichever is earlier, subject to completion of
GRSE?s Scope of work, against Indemnity Bond/Bank Guarantee.
3 3 3 3 3
Independent Consultant Agreement Independent Consultant Agreement Independent Consultant Agreement Independent Consultant Agreement Independent Consultant Agreement
THIS AGREEMENT, is made on this ??….. day of ?….?., 20?… BY AND
BETWEEN MACROMEDIA CORPORATION, duly incorporated under the Com-
panies Act, 1956 having its registered office at …????.., hereinafter
referred to as  ?Macromedia?, (which term of expression shall unless
excluded by or repugnant to the context mean and include its successors
in interest, administrators, liquidators and assigns) of the ONE PART AND
M/S. ROBERT HICKSON & ASSOCIATES, a Proprietorship concern, having its
place of business at?….??., hereinafter referred to as  ?Consultant?
(which term or expressions shall unless excluded by or repugnant to the
context, mean and include his heirs, successors, executors administrators
and assigns) of the OTHER PART.
1. Provision of Services. Consultant agrees to provide Services, in
accordance with the terms and conditions of this Agreement, and
as described on Exhibits A and B hereto.  Consultant shall furnish
all labour, materials, equipment, supervision and insurance needed
to provide the Services. It is understood that Consultant is anCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 943
independent Consultant in the performance of this Agreement and
not an employee of Macromedia. Nothing contained herein shall
be construed to imply an employment, joint venture or principal and
agent relationship between the parties, and neither party shall
have any right, power or authority to create any obligations,
express or implied, on behalf of the other.  Consultant shall not be
entitled to participate in any plans, benefits or distributions,
intended for Macromedia employees. Consultant agrees that
Macromedia will make no deductions from any compensation paid
to Consultant for, and Consultant shall have full and exclusive
liability for, the payment of any taxes and/or contributions for
unemployment insurance, workers? compensation or any other
employment-related costs or obligations, related to the provision
of the Services.
2. Additional Services.  Exhibits A and B may be modified, from time-
to-time, upon agreement of the parties.  If Macromedia requests
modified or additional Services, Consultant shall provide
Macromedia with an estimate of changes to the compensation
payable and impact upon milestone or completion dates, if any.
Consultant shall proceed with such modified or additional Services
only upon Macromedia?s written approval.
3. Macromedia Representative. Macromedia Representative means
Rob Burgess, or such other person as Macromedia may subse-
quently designate. All instructions, approvals, submissions, no-
tices, and any other communications or transactions which must
be made to or by Macromedia pursuant to this agreement must be
made through the Macromedia representative.
4. Term. Time is of the essence in the provision of Services under this
Agreement. Consultant shall commence provision of Services
on?. This Agreement shall terminate upon Consultant?s comple-
tion of the Services in accordance with Exhibit B.
5. Compensation Payable to Consultant and Invoices.  In consider-
ation for the Services provided and rights assigned hereunder,
Macromedia shall pay Consultant as specified in Exhibits A and
B.  Consultant shall invoice Macromedia in accordance with the
schedule on Exhibit B.  No compensation shall be paid for Services,
unless provided in accordance with Exhibits A and B, or otherwise
approved in advance in writing by Macromedia, and fully accepted
by Macromedia.
6. Indemnity and Warranty. Consultant shall at all times comply with
all applicable laws, statutes, ordinances, rules, regulations and
other governmental requirements. Consultant shall indemnify and
hold Macromedia harmless from any and all claims, causes of944 CONVEYANCING, DRAFTING & DEEDS [Ch. 73
action, losses, damage, liabilities, costs and expenses, including
attorney?s fees, arising from the death of or injury to any person,
from damage to or destruction of property, or from breach of the
warranties in this paragraph, arising from the provision of Services
by Consultant, its agents or employees. Consultant warrants that
the Services provided by the Consultant and/or work delivered to
Macromedia, not provided by Macromedia to Consultant, does not
infringe upon or violate the rights of any third party, and the use
of same by Macromedia will not violate or infringe the rights of any
person or party.  Consultant warrants that all deliverables shall be
?Year 2005? complaint. For purposes of this Agreement,  ?Year 2005
compliant? means that all deliverables will record, maintain and
process accurate dates for all dates including and following
January 1, 2005.
7. Ownership of Intellectual Property. Consultant agrees that all
copyrightable material, including writings, software, drawings, and
designs, and all ideas, inventions, improvements, developments
and discoveries made, conceived or reduced to practice by
Consultant, whether individually or in collaboration with others,
during the course of performance under this Agreement, which
relate in any manner to Macromedia?s business or to the Services,
are the sole property of Macromedia and Consultant agrees to
assign (or cause to be assigned) to Macromedia all right, title and
interest in and to all such intellectual property, including without
limitaiton any worldwide copyright(s), moral rights, patent(s) and
any and all other such rights of whatever kind, and the right to
obtain registrations, renewals, reissues and extensions of the
same. Consultant agrees to execute such further documents and
to do such further acts as may be necessary to perfect the
foregoing assignments and to protect Macromedia?s rights.  In the
event Consultant fails or refuses to execute such documents,
Consultant hereby appoints Macromedia as Consultant?s attor-
ney-in-fact (this appointment to be irrevocable and a power
coupled with an interest) to act on Consultant?s behalf and to
execute such documents. Consultant further agrees that
Macromedia shall have the right to use, copy, publish, reproduce,
alter, or destroy the Intellectual Property and to take any other
action consistent with Macromedia?s sole and exclusive ownership
thereof, and Consultant waives any right to interfere with or to
prevent the exercise of the forgoing rights by Macromedia in its sole
and absolute discretion.
8. Confidentiality. Consultant acknowledges and agrees (a) that all
Intellectual Property, and any other plans, specifications, designs
and other documents and materials created pursuant to thisCh. 73] PROJECT CONSULTANCY AND SERVICE AGREEMENT?FORMS 945
Agreement, or related to the Services and any information, work
in progress, trade secrets or other secret or confidential matter
related to the business or projects of Macromedia constitute
confidential information (?Confidential Information?), and (b) that
Consultant shall not use, copy or disclose to any person, firm or
corporation any such Confidential Information, unless such use,
copying  or disclosure is necessary to accomplish Consultant?s
duties hereunder and has been authorized in writing by Macromedia
pursuant to the Independent Consultant Confidentiality Agree-
ment between Macromedia and Consultant (attached hereto as
Exhibit C), and (c) Consultant shall execute Macromedia?s stan-
dard Independent Consultant Confidentiality Agreement, a copy
of which is attached hereto as Exhibit C, and return same with an
executed copy of this Agreement.
9. Termination.  (a) Macromedia reserves the right to terminate this
Agreement at any time and will endeavour to give Consultant up
to ten (10) days notice of termination, if practicable.  Macromedia
may terminate this Agreement immediately, however, should
Consultant fail to perform any of its obligations hereunder.  Con-
sultant shall be compensated for all Services provided, prior to
termination. (b) Consultant?s obligations pursuant to Paragraphs
6, 7, 8, 13 and 15 shall survive the termination or expiration of the
Agreement, and said paragraphs shall remain in full force and
effect notwithstanding such termination or expiration.
10. Assignment. Neither this Agreement nor any rights or duties
hereunder may be assigned or delegated to any other person or
entity by Consultant without the express written consent of
Macromedia. Any such purported assignment or sub-contract
shall be void.
11. Notices. Any