1. DEFINITIONS
This Agreement, constituted by this agreement, the Purchase Order, any documents referred to in either of them, constitute the entire agreement between the parties and supercedes any previous representation, understanding or correspondence.
“Control” means the ownership of more than 50% of the voting stock of any organisation or the legal power to direct or cause the direction of the general management of either Supplier or TDIC as appropriate. “Force Majeure” shall include, without limitation, war, warlike operation, armed aggression, insurrections, general strikes (excluding strikes among emplyees of the Supplier or his sub-contractors), riots, fires, unfavourable or severe meteorological conditions, epoedemic, civil disturbances, explosions, accidents, governmental acts, priorities, material control regulations or orders, acts of God, acts of public enemy, quarantibe restrictions or other similar cause beyond the reasonable control of the affected party. "Goods" means all (or any) of the goods covered by the Agreement including without limitation raw materials, processed materials or fabricated products. “Incoterms” means the Year 2010 edition of the official International Chamber of Commerce Rules for the interpretation of trade terms.“Intellectual Property Rights” means patents, registered designs, trade marks and service marks (whether registered or not), domain names, copyrights, database rights, moral rights, design rights and any and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, computer programs, confidential information, business names, goodwill and in applications for protection of the above rights. “Packaging” means bags, cases, carboys, cylinders, drums, dunnage, pallets and other containers. “Purchase Order” means TDIC’s purchase order issued to Supplier setting out TDIC’s requirements for Goods or Services. "Services" means the services covered by the Agreement."Specification” means the specification separately documented by TDIC in writing which sets out the performance required of the Goods and Services."Supplier" means the person, firm (or any individual partner thereof), or company to whom the Purchase Order is addressed."TDIC" means Tourism Development & Investment Company PJSC, but shall where rights or benefits are granted, or Services provided, to Tourism Development & Investment Company PJSC, also include its Affiliates. “Terms and Conditions” means the terms and conditions set out in this document.
2. Delivery
2.1 Supplier will package and label the Goods in a manner suitable for transit and storage at no cost to TDIC. TDIC will not pay for or return Packaging materials unless previously agreed between the parties and confirmed in writing. The Supplier shall ensure that Packaging complies with all relevant legislative requirements, including those pertaining to environmental, and occupational health and safety standards. Supplier will, where practicable, use minimal Packaging, recyclable Packaging and recycled materials as appropriate.
2.1 Subject to the Incoterms listed in the Purchase Order, the Supplier shall at the Supplier’s cost:
(a) supply and deliver (carriage paid) the Goods in complete and undamaged condition to the Delivery Point by the Delivery Time (and during normal working hours);
(b) off-load, assemble and stack the Goods at the Delivery Point and as directed by TDIC;
(c) remove and dispose of all debris/packaging including clean-up;
(d) provide a delivery docket at the Delivery Date detailing the particulars of the Goods and the details of TDIC’s representative who has received the Goods on behalf of TDIC; and
(e) obtain a receipt of delivery for the Goods signed by a TDIC representative which delivery receipt shall contain TDIC’s representative’s full contact details.
2.2 Time for delivery shall be of the essence. If any of the Goods are not delivered by the Delivery Date then, without prejudice to TDIC’s rights under Clause 98, TDIC may:
(a) terminate this Agreement in whole or in part;
(b) refuse to accept any late delivery of the Goods (or any part); or
(c) accept late delivery of the Goods and claim damages for all additional costs, losses and expenses incurred by TDIC which are in any way attributable to the Supplier’s failure to deliver the Goods by the Delivery Date.
2.3 This Clause 2.3 applies if so stated in the Agreement.
(a) The Supplier shall, without further charge to TDIC, install the Goods as directed by TDIC at the Delivery Point or such other site as directed by TDIC using the highest standard of skill, care, workmanship and attention expected of an experienced and competent Supplier who regularly installs goods of the same type as the Goods at sites similar to the relevant location.
(b) The Supplier shall test all installations for compliance with the Specification and all relevant laws.
(c) All testing must be carried out promptly on delivery and with minimum interference to TDIC or its employees and contractors. A representative of TDIC may be present at all tests.
(d) If TDIC is satisfied with the testing and installation, TDIC shall notify the Supplier that it accepts the delivery of the Goods.
2.4 If Goods are delivered in excess of the quantities ordered by TDIC, TDIC shall not be bound to pay for the excess which shall remain at the Supplier’s risk.
2.5 TDIC may, upon reasonable notice to the Supplier, defer delivery of the Goods without incurring any additional cost.
2.6 Where TDIC agrees to accept delivery by instalments, this Agreement shall be construed as a single contract in respect of each instalment. Failure by the Supplier to deliver any one instalment shall entitle TDIC at its option to treat this Agreement as repudiated.
3. Price and Payment
3.1 TDIC shall pay the Price at the Time for Payment and on the Payment Terms. The Price and the Unit Prices shall not increase for any reason.
3.2 The Supplier shall submit to TDIC an invoice (noting the Order number) for each payment due from TDIC on account of the Price payable for the Goods under an Order once they have been delivered (and installed as appropriate) and accepted by TDIC.
3.3 If TDIC has bone fide dispute in relation to any invoice, it shall pay the undisputed amount and then the balance (if any) after agreement with the Seller or after dispute resolution proceedings have been finalised, whichever occurs first.
3.4 Unless specifically stated, the Price and any Unit Prices in this Agreement are not subject to change for any reason and are inclusive of all taxes, expenses, and disbursements.
3.5 All payments hereunder shall be made in the currency stated in this Agreement.
3.6 As a condition precedent to any obligation on TDIC to pay the Price, the Supplier must have fully performed its obligations under this Agreement.
3.7 TDIC may deduct from any moneys which may be, or become, payable by the Supplier to TDIC under this Agreement any money which may be or becomes payable from the Supplier to TDIC.
4. Variations and Extensions of Time
4.1 TDIC may, upon reasonable notice to the Supplier, increase, decrease, modify or revise in any respect its order under this Agreement for the supply of Goods. TDIC may omit all or part of the Goods ordered and engage another Supplier to supply the omitted Goods.
4.2 Any changes in quantities of Goods will be calculated in accordance with the Unit Prices stated in this Agreement, however, where no Unit Prices are specified, within 7 days of giving such notice, TDIC and the Supplier will in good faith negotiate and agree an equitable increase or reduction to the Price. If no agreement is reached, the matter may be referred by either party to dispute resolution.
4.3 The Supplier is only entitled to an extension to the Delivery Date if the Supplier is delayed by an act, omission, breach or default of TDIC or its employees or agents or the execution of a variation under this Clause 4.3 (except where directed because of an act, omission or breach of the Supplier).
4.4 The Supplier shall, within five (5) days of it becoming evident to the Supplier that the Goods are likely to be delayed, give notice to TDIC setting out the cause of delay and period by which it believes the Delivery Date should be delayed.
4.5 TDIC shall, within a reasonable time of receipt of the Supplier’s notice, notify the Supplier of the period, if any, by which the Delivery Date is to be extended due to any delay described in Clause 4.3.
4.6 TDIC may extend the Delivery Date even where the Supplier has not made any claim for an extension of time and TDIC is not required to exercise this right to extend the Delivery Date for the benefit of the Supplier.
5. Risk and insurance
5.1 The Goods remain at the Supplier’s risk until their delivery is accepted by TDIC in accordance with this Agreement. TDIC shall not be deemed to have accepted any Goods inspected off site until TDIC has had a reasonable time to inspect and test the Goods itself. Ownership of and title and risk in the Goods shall pass to TDIC upon acceptance of delivery the Goods by TDIC.
5.2 The Supplier shall, if requested by TDIC, obtain, and produce evidence of the currency of its, workers’ compensation, product liability, public liability and materials and plant, equipment and materials insurance and any other document reasonably requested by TDIC and such policies must be to the reasonable satisfaction of TDIC.
5.3 Upon request by TDIC, the Supplier shall provide evidence or certificates of compliance with its obligations under this Clause 5.2.
6. Intellectual Property
6.1 The Supplier grants to TDIC an, irrevocable royalty free license, with the right to sublicense, to use, copy and disclose all intellectual property rights in the Goods for the purposes specified in or inferred by the Agreement.
The Supplier warrants that use by TDIC or by another person at the direction or with permission of TDIC of the Goods in accordance with the license will not infringe the intellectual property rights of any third party.
7. Quality and Defects
7.1 TDIC’s right to Inspect:(a) TDIC, and any third party it appoints on its behalf, shall have the right upon prior notice to inspect and carry out any tests, or batch sampling, it wishes on all Goods at Supplier's premises (and the Supplier shall procure equivalent rights for TDIC in relation to the premises of any sub-contractors and on any premises where the Services are provided). Where pre-shipped inspection is specified, Supplier must, at its expense, facilitate the same and provide any or all relevant certificates of analysis.
(b) Any inspections, tests, approvals or acceptance given on behalf of TDIC in relation to the Goods or Services shall not relieve Supplier from its obligations or liabilities under the Agreement.
Supplier shall, and shall ensure that its sub-contractors shall, grant a right of access to TDIC and any third party it appoints in order to inspect and test the Goods for compliance with relevant environmental, occupational health and safety legislation and other requirements such as TDIC standards or any requirements set out in the Specification.
7.2 The Supplier warrants that the Goods:
(a) shall be of the best available quality, material and workmanship, be without fault and conform in all respects with this Agreement and conform in all respects with this Agreement, all applicable Laws, the Specification, TDIC’s Policies and any requirements as advised by TDIC to the Supplier;
(b) shall be fit for the purpose for which goods of the same kind are commonly supplied and for any other purpose made known to the Supplier and capable of providing the functions and features described in the Specification and in any relevant standard published by the manufacturers of the Goods, or in the absence of any such standard, relevant UAE standards; and
(c) shall be free from defects for the Warranty Period of 2 years from date of acceptance of delivery unless otherwise specified in this Agreement.
7.3 The Supplier shall:
(a) provide or obtain from manufacturers, suppliers and sub-contractors for the benefit of TDIC all warranties, guarantees or other contractual obligations for materials, equipment, or goods used for or in connection with the supply and delivery of the Goods which are described in this Agreement or, if nothing is described, as are given by manufacturers, suppliers and subcontractors in the ordinary course of business; and
(b) deliver the warranties, guarantees and other contractual obligations required under Clause 7.3 to TDIC as a condition precedent to receiving payment under this Agreement.
7.4 At any time, prior to delivery of the Goods to the Delivery Point, and on delivery, TDIC shall have the right to inspect, batch sample and test the Goods. TDIC shall not be deemed to have accepted delivery of any Goods by inspection, sampling or testing of the Goods.
The Supplier shall ensure that its subcontractors grant TDIC the same rights of access to inspect, batch sample and test the Goods.
7.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and no inspection or testing shall diminish or affect the Supplier’s obligations under this Agreement.
7.6 If TDIC is satisfied with the testing, TDIC shall notify the Supplier that it accepts delivery of the Goods.
7.7 If TDIC is not satisfied with the testing, TDIC shall notify the Supplier that it does not accept delivery of the Goods and the Supplier shall (without prejudice to TDIC’s other rights and remedies including under Clause 9) promptly and at its expense carry out all necessary remedial work and re-submit the Goods to testing again.
8. Indemnity
The Supplier indemnifies TDIC and its employees and agents against any liability, claim, loss, damage or expense arising by reason of the Supplier’s delivery and installation (if applicable), and TDIC’s use of, the Goods (including any claim by a third party against TDIC for infringement of that third party’s intellectual property rights relating to the Goods) and for any liability, claim, loss, damage or expense arising out of negligence or a breach of this Agreement by the Supplier.
9. Remedies
Without prejudice to TDIC’s rights and remedies at law and this Agreement, if any of the Goods are not supplied in strictly in accordance with this Agreement, after any applicable cure periods expressly provided for in this Agreement, TDIC may do any or all of:
(a) reject the Goods (in whole or in part) and return them to the Supplier and the Supplier shall provide a full refund of any moneys paid for the Goods upon their return;
(b) give the Supplier at the Supplier’s expense the opportunity to remedy any defect or supply replacement Goods and carry out any other necessary work to ensure that the terms of this Agreement are fulfilled;
(c) to carry out at the Supplier’s expense any work necessary to make the goods comply with this Agreement;
(d) terminate this Agreement; and
(e) claim damages for any breach by the Supplier of this Agreement or arising from termination of this Agreement by TDIC for the Supplier’s breach.
10. Termination
10.1 TDIC may terminate this Agreement for convenience at any time but if it does so it shall pay the Supplier pro rata for Goods already supplied and delivered and installed (if applicable) by the Supplier in accordance with this Agreement and for fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss. 10.2 TDIC may by notice in writing terminate this Agreement for the Supplier’s material breach of this Agreement, or upon the Supplier’s insolvency, in which case TDIC shall be liable to pay the Supplier pro rata for Goods already delivered by the Supplier less any other cost, loss, expense or damage TDIC has incurred or is likely to incur as a result of such termination.10.3 The Supplier shall not be entitled to claim any consequential loss or damage, including without limitation loss of profits or loss of opportunity.10.4 The rights given to TDIC by this Clause 109 are in addition to any other rights that TDIC may have at law.
10.5 The Supplier agrees that any termination pursuant to this clause 10 is done by mutual consent and does not require a court order.
11. Confidentiality
11.1 The Supplier shall treat all material and information relating to this Agreement including, but not limited to material and information:
(a) supplied to it by, or on behalf of, TDIC in relation to the Goods or this Agreement; and/or
(b) prepared or developed by, or on behalf of, the Supplier or its employees and agents for the purpose of fulfilling its obligations under this Agreement,
as confidential (“Confidential Information”), and shall not disclose such Confidential Information to any third party without TDIC’s prior written permission.
11.2 The Supplier acquires no interest in any Confidential Information and shall use, and shall procure that its employees and agents use, such Confidential Information only as necessary for the performance of its obligations under this Agreement.
11.3 The Supplier shall not, without TDIC’s prior written approval, take or permit to be taken any photographs of TDIC-commissioned Goods for use at any TDIC owned site (including the Delivery Point) in any publicity or advertising or publish alone or in conjunction with any other person any articles, photographs, images or other illustrations relating to such TDIC-commissioned Goods and/or this Agreement, nor impart to any publication, journal, newspaper, journalist, radio or television programme any information regarding such TDIC-commissioned Goods and/or this Agreement.
12. Disputes
12.1 Either party may notify the other in writing of a dispute in connection with or relating to this Agreement or the Goods specifying in detail the dispute and its claim.
12.2 Within 14 days of receipt of such notice, senior representatives of the parties must meet and negotiate in good faith to attempt to resolve the dispute.
12.3 If the dispute is not resolved within 14 days of the notice being received by the receiving party, either party may refer the dispute to the courts of the Emirate of Abu Dhabi which shall have exclusive jurisdiction to hear such dispute.
13. Governing Law
13.1 This Agreement shall be governed by and construed in accordance with the laws of the Emirate of Abu Dhabi.
13.2 The Supplier shall in the performance of its obligations comply with and ensure that its personnel comply with all laws, orders, statutes, by laws, regulations and other provisions having the force of law in the Emirate of Abu Dhabi.
14. General
14.1 The Supplier is an independent contractor, not an agent, employee or partner of TDIC.
14.2 Any comment, approval, consent or direction by TDIC shall not relieve the Supplier from, or on any way diminish or affect, the Suppliers' obligations under this Agreement.
14.3 Any notice or other communication given under this Agreement shall be delivered in person or sent by prepaid letter or by facsimile or through TDIC’s nominated electronic communication system (if applicable).
14.4 This Agreement is made of separable parts. If any parts or provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that part or provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of he other parts and provisions of this Agreement shall not be affected.
14.5 The Supplier may not assign, transfer or charge all or any of its rights or obligations under this Agreement, nor subcontract the whole or part of its obligations without the prior written consent of TDIC.
14.6 TDIC shall not be liable or in any way held responsible for the accuracy or adequacy of any information or material that TDIC gives to the Supplier.
14.7 Terms defined in this Agreement have the meanings ascribed to them in the form of Order on the first page of this Agreement.
