1. Scope and validity
These General Terms & Conditions shall automatically apply to the Engagement Letter or Purchase Order, as applicable, (the “Purchase Order”) issued by International Power S.A., acting through its Dubai Branch or its Affiliated Entities (the "Client") for the supply of Products or Services, as defined in the Purchase Order, referring to these General Terms & Conditions, unless (i) otherwise agreed between the Client and the Supplier under a framework agreement to which these General Terms & Conditions are attached or (ii) the Client has agreed otherwise in writing. The Supplier's proposed terms and conditions or standard terms shall not apply unless they have been negotiated and explicitly accepted in writing by the Client.
These General Terms & Conditions do not apply to purchase orders placed by the Client or its Affiliated Entities for services and/or products which are the subject of a distinct framework agreement signed between the Client and the Supplier. (the Client and the Supplier are referred to individually as “Party” and collectively as “Parties”)
2. Purchase Orders
The Purchase Orders shall only bind the Client if it is validated by a representative duly authorized by the Client to place such purchase orders. Purchase Orders placed verbally or by telephone shall only be valid and have effect if they are confirmed in writing.
Each order must be acknowledged by the Supplier within a maximum period of five (5) days with effect from its date of dispatch, failing which the order may be cancelled at any time by the Client who is not obliged to provide a reason or, where appropriate, will be treated as having been accepted by the Supplier (insofar as concerns electronic orders, an e-receipt is allowed).
The acceptance of a Purchase Order or commencement of execution of said Purchase Order by Supplier shall be considered as an acceptance by Supplier of said Purchase Order and its unconditional adherence to these General Terms & Conditions and all clauses and special conditions contained in the Purchase Order, referring to these General Terms & Conditions.
Should the Supplier accept the Purchase Order conditionally or make certain reservations, the Supplier shall notify the Client thereof within five (5) days of receipt of the purchase order by means of a written document separate to its standard form. In this case, the Client shall no longer be bound by said Purchase Order unless it in turn confirms its acceptance of said modifications in writing.
3. Price invoicing and payment
“VAT” – including, without limitation, any Value Added Tax or (General) Sales Tax or similar indirect taxes, duties or levies as applicable to the Purchase Order and the supplementary documentation issued thereunder; including but not limited to invoices, credit notes and similar; in accordance with the prevailing laws of the United Arab Emirates, including any transitional VAT legislative provisions.
“Tax Authority” – Federal Tax Authority.
(a) To the extent that the goods or services provided under the Purchase Order are subject to VAT, the Purchase Order price agreed is exclusive of VAT, and the Supplier shall issue an invoice with the prevailing VAT rate as applicable (where appropriate the Supplier shall apply any VAT exemption or a zero rate which may be applicable). The Supplier agrees that the Purchase Order price is inclusive of: (i) VAT on supplies made to it by its subcontractors or vendors; and (ii) any taxes, duties and charges applicable to the Supplier or to the supply made under this Purchase Order in any jurisdiction, other than VAT.
(b) The Client shall pay the VAT to the Supplier following receipt of: (i) a valid VAT invoice, which is in accordance with the prevailing VAT Law; (ii) the Supplier’s VAT registration number; and (iii) reasonable evidence that the VAT charged under this Purchase Order is the correct amount due from the Supplier to the taxing authorities.
(c) For the avoidance of doubt, it shall at all times remain the sole responsibility of the Supplier to:
i. assess the VAT rate(s) and tax liability arising out of or in connection with the Purchase Order; and
ii. account for or pay any VAT (and any other tax liability) relating to payments made to the Supplier under the Purchase Order to the relevant Tax Authority.
(d) The Client shall not be liable to the Supplier in any way whatsoever for any error or failure made by the Supplier (or the Client) in relation to VAT, including without limitation:
i. Where the Supplier is subject to a VAT ruling(s) in connection with the Purchase Order.
ii. Where the Supplier has assumed that it can recover input VAT and (for whatever reason) this assumption is subsequently held to be incorrect or invalid; and/or
iii. Where the Supplier’s treatment of VAT in respect of any claim for payment made under the Purchase Order is subsequently held to be incorrect or invalid.
(e) The Supplier shall defend, indemnify and hold harmless the Client from, against and in respect of all losses, claims, damage, liability (including any interest or penalty) and expenses (including reasonable legal fees and costs of defense and expenses) arising out of or resulting from, or otherwise in connection with failure or delay by the Supplier to account for or pay the Tax Authority any amount of VAT under this Purchase Order or out of any of the circumstances mentioned in paragraph (d) above."
4. Delivery and Acceptance
The Supplier undertakes to deliver the Products and Services to the locations/on the dates/within the periods indicated on the Purchase Order during the opening hours of the department responsible for acceptance of said Products and Services.
If Services are provided onsite, the Supplier shall comply with the Client’s health and safety regulations and measures applicable to external companies working on the Client’s site.
The Products delivered must comply in full with the quality and quantity conditions stipulated in the Purchase Order and with the requirements agreed between the Parties. The Client shall only be deemed to have accepted apparent defaults if (i) in the case of delivery of Products, the Client has not notified the Supplier of these faults within ten (10) working days of the delivery date or (ii) in the case of supply of Services subject to an acceptance procedure, if the Client has accepted the Services in writing after having been requested to do so by the Supplier.
Should the Client conditionally accept the Products and Services, the Supplier must remedy the defaults identified as quickly as possible. If the defaults identified have not been remedied within fifteen (15) days, the Client is entitled to refuse the Products. The price shall not be due and the Supplier will refund any advance payment paid by Company as quickly as possible. If the Products and Services are accepted unconditionally or if the initial conditional acceptance is confirmed unconditionally, the Client shall declare acceptance in writing ("the Acceptance").
5. Transfer of title and risks
The title in and risk of damage or loss of the Products are transferred to the Client upon its formal Acceptance by the Client.
6. Delivery periods and penalties
Time is of the essence. Unless otherwise specified in the Purchase Order, delivery periods agreed in advance between the Parties shall take effect from the date upon which the Purchase Order is signed by the Client. These periods cannot be revised without the prior written consent of the Client. The final deadline for delivery indicated on the Purchase Order shall be the date upon which the last Product listed on the Purchase Order is delivered. The Client reserves the right to refuse early deliveries. In the event the Supplier does not comply with the agreed delivery dates, the Client reserves the right to terminate the concerned Purchase Order, without any intervention by the courts and tribunals being required, by sending a notice to Supplier, and without prejudice to any damages or compensation it may claim for all resulting damages.
Without prejudice to afore-mentioned obligations of the Supplier, the Client shall be entitled to repair or replace the Products itself if it so chooses.
8. Support- Product end of life
The Supplier undertakes, for a minimum period of five (5) years following the end of production or withdrawal from the catalogue of said Products, to supply the Client, under reasonable conditions in terms of price and delivery period, with items, spare parts and other elements required to continue to use the Products.
9. Compliance with regulations
The Products delivered and Services provided shall comply with all applicable local, European and international legal and/or regulatory requirements in terms of safety, environment and labour that are in force in the country of destination of said Products and Services. All dangerous Products must be delivered with a material safety data sheet in accordance with national applicable regulations. All documents and certificates must be supplied at the same time as the Purchase Order and form an integral part thereof.
All information of any nature, either commercial or technical, disclosed by either Party to the other in connection with the Purchase Order or during its execution, remains the exclusive property of the Party disclosing said information. The Party receiving said confidential information from the other Party shall only use it in connection with the Purchase Order and shall return it to the disclosing Party after execution of the Purchase Order. The receiving Party undertakes to treat said information as strictly confidential for a period of five (5) years following the date upon which the Purchase Order was placed. The receiving party shall only disclose it to employees or their insurance providers as may be required to execute the Purchase Order (on a need to know basis) and shall ensure that said employees are bound by similar confidentiality obligations. Each Party shall not disclose confidential information received from the other Party to any third parties under any circumstances without prior written authorization of the disclosing Party.
Without prior written agreement from the Client, the Supplier shall not communicate on, in any manner whatsoever, or disclose any information about, the existence of commercial relations between the Client and the Supplier and/or about the Client and its associated brands.
12. Intellectual property rights
The Supplier shall grant to the Client all necessary intellectual property rights right to use the Products and Services. The Supplier shall transfer exclusively to the Client, as of right and without any formal procedures, gradually as they are completed all intellectual property rights on the deliverables executed for the Client under a Purchase Order (including the right to reproduce and represent on any medium and as many times as desired or to modify the deliverables). This transfer shall be valid for the duration of legal protection of the intellectual property rights and for the whole world. The Prices agreed between the Parties include this transfer of rights.
The Supplier shall indemnify and hold the Client harmless against any action by a third party resulting from the violation of intellectual property rights in connection with any deliverables, Products and Services supplied under a Purchase Order, and shall be fully responsible, as regards the Client, for any resulting damages, including the cost of legal assistance. Moreover, the Supplier undertakes, at its own cost, to adapt the deliverables, Products and Services which would violate the intellectual property rights of a third party or to replace them with similar, or equivalent deliverables, Products and Services. If this is not possible, the Client may terminate the Purchase Order without prejudice to any damages it may claim.
13. Liability and Insurance
The Supplier shall at all times remain responsible control and supervise all its employees, including when they are working on the Client's project site or premises.
The Supplier shall take, both on its own behalf and on the behalf of any of its sub-contractors, a valid insurance from a recognized insurance company to guarantee the financial consequences of its liability and the liability of any of its sub-contractors that may arise as the result of bodily, property damage and consequential losses, whatever their origin, caused to the Client or any third party during or after execution of any Purchase Order.
The Client may ask the Supplier a copy of the insurance policies taken out by the Supplier. The insurance policies must enter into force at the latest from the date of delivery of the Products or date the Services start to be performed under the Purchase Order shall remain in force for an uninterrupted period of twelve (12) months afterwards and contain a waiver of recourse in favour of the Client. The indication of any guaranteed sums in the insurance policy does not in any way constitute a waiver on the part of the Client towards the Supplier to claim amounts above neither the aforementioned sums nor a limitation of liability. The Supplier shall be solely responsible for payment of insurance premiums.
Should the Supplier fail to perform any one of its obligations and not remedy its failure within a period of ten (10) days from the issuance of written notice by the Client, the Client may terminate the Purchase Order, as of right, without prejudice to any right to claim damages.
In the same way, the Client may, without prejudice to any applicable laws, (i) terminate the Purchase Order, as of right in case of bankruptcy, dissolution or seizure of the assets of the Supplier, (ii) terminate, at any time, unilaterally and as of right, any Purchase Order placed but not yet executed, without formal procedures or prior intervention from the courts.
The completion or termination of the Purchase Order, shall not affect any obligations that, due to their nature, shall survive, such as but not limited to obligations relating to the warranty, compliance with regulations, intellectual property or confidentiality.
15. Ethics and Sustainable development
The Supplier acknowledges that he has been duly informed of, and agree to abide by, the ENGIE commitments in the area of ethics and sustainable development, as those commitments are set forth in the Ethics Charter, the Guide “Ethics in Practice” and the policy “Ethics of Business Relationship: Governing Principles” and posted on its website www.engie.com.
The Supplier represents and warrants to the Client that, during a period of 6 years immediately preceding the date of the Purchase Order, he has complied with the rules of international law and national law applicable to the Purchase Order, in relation to: (i) fundamental human rights and in particular the prohibition of (a) using children labour and any form of forced or compulsory labour and (b) organizing any form of discrimination within its company or towards the suppliers and sub-contractors; (ii) embargos, drugs and weapons trafficking, terrorism; (iii) trade, import and export licenses and customs; (iv) health and safety of staff and third parties; (v) labour, immigration and prohibition of illegal work; (vi) environment protection; (vii) financial criminal offences, in particular corruption, fraud, influence peddling (or equivalent offence as it can be provided by the national law applicable to the Purchase Order), swindling, theft, misuse of corporate funds, counterfeiting, forgery and the use of forgeries, and similar or related offences; (viii) measures to combat money laundering; (ix) competition laws.
In connection with the Purchase Order’s performance, the Supplier commits to comply in his name and in the name and on behalf of his suppliers and sub-contractors with the same rules.
The Client has the right to require from the Supplier evidence that he has complied with the rules of the present Ethic and Sustainable Development Clause and to carry out audits or have them carried out.
Any breaches of the rules of the present Ethic and Sustainable Development Clause shall constitute a contractual breach entitling the non-defaulting party to suspend and terminate the Purchase Order at the defaulting party’s exclusive expense, in accordance with the terms and conditions set forth in the Purchase Order.
16. Personal Data Protection
The Supplier acknowledges and fully understands that at any time the data it receives from, stores, transmits or otherwise processes ("processing") on behalf of the Client may include Personal Data. The Supplier agrees and warrants that it will only process Personal Data held by it pursuant to this T&C for the purpose of providing the services and that in respect of the processing of any and all such Personal Data, it will at all times only act on the written instructions (including instructions sent be e-mail or fax) from duly authorised officers of the Client. The Supplier will be notified from time to time as to the present identity and contact details of such officers. The Data Processor will promptly acknowledge receipt of any such notification.
Moreover, the Supplier agrees to: (i) take appropriate security and confidentiality measures with regard to the nature of the Personal Data and the risks presented by data processing to ensure that the Personal Data are secure and, in particular, to prevent them from being modified, damaged, or accessed by unauthorised third parties; (ii) not keep the Personal Data more than the period of time necessary to fulfil its contractual obligations; (iii) take all steps needed to avoid spreading viruses; (iv) delete and/or return the Client's Personal Data upon completion of the contract in accordance with the Client's instructions and at the latest one month after receiving said instructions; (v) not keep any copies of documents or media containing Personal Data, except those necessary for the execution of the services as part of this contract, and on completion of the contract, destroy or have its subcontractors destroy the Personal Data and any electronic or hard-copy files containing the Personal Data collected in connection with this contract; (vi) make sure that the Client is informed of any Personal Data leak or violation as soon as possible and at the latest forty-eight (48) hours after learning of the breach and to take the necessary measures to limit the consequences of the leak or violation.
If the Supplier makes use of another Data Processor (Third Party) in the course of processing Personal Data on behalf of the Client, it agrees and warrants that it will impose at all times under a contract in writing the same or substantially similar conditions on any such Third Party as are imposed on the Supplier. Furthermore, the Supplier shall not utilise a Third Party without the written consent of the Client.
The Supplier shall be solely responsible for the correct execution of the Purchase Orders. The Supplier may only transfer all or part of its rights and obligation under a Purchase Order to a third party after obtaining prior written agreement from the Client. The Supplier shall in all cases remain fully responsible for the acts or omissions of its sub-contractors and any agreed sub-contracting shall not release the Supplier in any way of its obligations performed by said third party.
The Client shall be free to transfer, fully or partially, its rights and obligations pursuant to the Purchase Order to an affiliated company.
18. Force majeure
A force majeure event is an event which is reasonably unforeseeable and could not have been reasonably avoided that prevent one Party to perform its obligations and which cannot be circumvented by the affected Party. In case of force majeure, the obligations of either of the Parties affected by a force majeure shall first be suspended. The affected Party shall promptly notify the other Party in the event of a force majeure and the probable duration thereof; the affected Party shall be make every effort possible to minimize the effects resulting from this situation. Should the force majeure last more than fifteen (15) days, without any possibility of remedying it, the other Party may terminate the Purchase Order without damages due by either Party.
19. Applicable law and settlement of disputes
In the event of difficulty in interpretation or execution of these General Terms & Conditions, the Parties shall, in good faith, make all reasonable efforts to finding an amicable solution before commencing any legal proceedings.
Should this amicable procedure de unsuccessful within thirty (30) days following the start of negotiations, the dispute shall be finally and exclusively settled by the competent courts.
The General Terms & Conditions shall be governed by the laws of the UAE and the courts of Dubai shall have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this General Terms & Conditions.
20. General provisions
The invalidity of one clause shall not invalid these General Terms & Conditions and the Parties shall do their best effort to replace said invalid clause with a valid clause of equivalent economic effect.
Failure to exercise or a delay in exercising a right or recourse by one of the Parties shall not constitute a waiver of said right or recourse nor the waiver of all other rights or recourses.
Each Party is an independent legal entity, both in legal and financial terms, and acts on its own behalf and under its sole responsibility.
The Supplier carries out its activities as an independent service provider towards the Client. All of the Supplier's staff that is appointed, wholly or partially, to execute the Purchase Order shall remain, in all circumstances, under the management and authority of the Supplier. The Supplier hereby declares that the personnel performing the Services under the Purchase Order are employed in accordance with the provisions of the Labour Code in force in Dubai or any local legislation applicable to the Supplier and the Supplier undertakes, in its capacity as an employer, to comply with all administrative, accounting and social management obligations with respect to its staff.