General and Specific Terms & Conditions
In these Terms:
"Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under direct or indirect common control with, such Person. For the purposes of this definition, "control" means the direct or indirect ownership of more than fifty percent (50%) of the outstanding capital stock or other equity interests having ordinary voting power or the Person exercising control possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise.
"Business Day” means any calendar day excluding the (i) weekend as applicable in the KSA, (ii) any calendar day that is a legal holiday in the KSA or a calendar day on which banking institutions in the KSA are authorized or required by law or other governmental action to be closed;
“Certificate of Completion” refers to the official document provided by the Client upon satisfactory completion of required services, OR shall have the meaning set forth in this document;
“Client” means Dhuruma Operation and Maintenance, an ENGIE entity, a limited liability company. [Comment: ‘Client’ definition shall be amended for each PO, accordingly]
“PO” / “Order” / “Purchase Order” means the Client’s purchase order to which these Terms are annexed;
“Contract” means the contract for the supply and acquisition of the Services including these Terms;
“H&S” refers to health and safety policies, standards, procedures, and requirements applicable to the Order or performance of Services under this Purchase Order/Contract as required by all applicable laws and regulations and as advised by the Client. While a policy document is implemented by ENGIE AMEA for HSE minimum standards to be followed across the hub entities and adhered to by contractors and temporary workers alike, the terms stated in Clause 22 herein cover the underlying essentials for all Suppliers.
“Materials” means any materials used during the performance of the Services/Works;
“Party” means each of the Client or the Supplier, and “Parties” means the Client and the Supplier together;
"Person" means any individual, corporation, joint stock company, limited liability company, partnership, joint venture, association, trust, unincorporated organization, competent authority, or other entity.
“Place of Work”: means the location specified in the Order where the Services have to be provided;
“Price” means the fees for the Services;
“Prohibited Acts” means any bribery, corruption, or other prohibited act under the laws of the Kingdom of Saudi Arabia, the UAE, the US Foreign Corrupt Practices Act, the UK Bribery Act, ICC Rules on Combating Corruption 2011, the laws of all other relevant jurisdictions and other requirements of national and international agencies, including acts such as the following:
- bribery and corrupt practices, including the paying, offering, giving, receiving, agreeing to receive or soliciting, directly or indirectly, of anything of value to influence improperly the actions of another party, including a public official;
- fraudulent practices, including any actions or omissions, including misrepresentations, that knowingly or recklessly mislead, or are an attempt to mislead, another party in order to obtain a financial or other benefit or to avoid an obligation;
- coercive practices, including impairing or harming, or threatening to impair or harm, directly or indirectly, any other party or the property of any other party in order to improperly influence the actions of a party;
- collusive practices, including any arrangement between two or more parties designed to achieve an improper purpose, including improperly influencing the actions of another party; and
- obstructive practices, including, in relation to an investigation into allegations of bribery, corruption or other prohibited act: (A) deliberately destroying, falsifying, altering or concealing evidence that is material to the investigation; (B) making false statements to investigators in order to materially impede the investigation; (C) threatening, harassing or intimidating any other party to prevent it from disclosing its knowledge of matters relevant to the investigation or pursuing the investigation; and (D) an act intended to materially impede access to contractually required information in connection with the
“Scope of Work” means the description of the Services and Works to be performed by the Supplier under the Contract;
“Services” / “Works” / “Products” means the Services to be performed by the Supplier as indicated in the Order and includes any matters reasonably to be inferred from the Contract or trade usage;
“Specification” includes any plans, drawings, data or other information relating to the Services;
“Supplier” means provider of required services to whom the Purchase Order will be placed or a contract will be signed with.
“Terms” means the standard terms of purchase set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Client and the Supplier;
“Writing” and any similar expression includes facsimile transmission and comparable means of communication, also including communications on the letterhead shared via email;
Any reference in these Terms to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time;
The headings in these Terms are for convenience only and shall not affect their interpretation;
Words in the singular include the plural meaning and words in the plural include the singular meaning; use of any gender includes the other genders.
"day" means the 24-hour period beginning and ending at 00:00 midnight KSA time.
- SCOPE AND VALIDITY
These General Terms & Conditions shall automatically apply to the Contract, Engagement Letter or Purchase Order, as applicable, (the “Purchase Order”) issued by ENGIE Affiliated entities (the "Client") for the supply of Products and/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”)
- BASIS OF PURCHASE & PURCHASE ORDER
These terms and the Purchase Order constitutes an offer by the Client to acquire the Services;
These terms shall apply to the Contract to the exclusion of any other terms on which any quotation has been given to the Client or subject to which the Order is accepted or purported to be accepted by the Supplier.
No variation to the Purchase Order or these terms shall be binding unless agreed in Writing between the authorized representatives of the Client and the Supplier.
The Purchase Order shall only bind the Client if it is validated by a Client’s authorized representative. Purchase Order placed verbally or by telephone shall only be valid and have effect if they are confirmed in writing.
The Purchase Order shall be acknowledged and accepted unconditionally in writing by the Supplier within a maximum period of seven (7) days with effect from its date of dispatch, failing which the order may be cancelled without cause at any time by the Client who is not obliged to provide a reason or, where appropriate, shall be treated as having been accepted by the Supplier (insofar as concerns electronic orders, an e-receipt is allowed).
The acceptance of the Purchase Order or commencement of execution of the Purchase Order by the Supplier shall be considered as an acceptance by the Supplier of the 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 in Writing within five (5) days from the Purchase Order receipt. In this case, the Client shall no longer be bound by the Purchase Order unless it in turn confirms its acceptance of the said modifications in writing.
- PRICE INVOICING AND PAYMENT TERMS
“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 local country, including any transitional VAT legislative provisions.
“Tax Authority” – Federal Tax Authority.
The Price of the Services shall be as stated in the Order and shall be inclusive of all charges for packaging, packing, shipping, carriage, insurance, and delivery of the Materials to the Place of Work and any duties, imposts or levies other than VAT. The Price shall not include Supplier personnel’s cost for food, transportation, accommodation, medical, personal protective equipment, tools and travelling, if the latter is applicable. The Supplier acknowledges and agrees that the Client is under no obligation to provide the Supplier with any tools and or equipment required for performing the Services, unless otherwise agreed in writing by the Parties.
No increase in the Price may be made (whether on account of increased Material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Client in Writing.
The Client shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier, whether or not shown on its own terms of sale.
The Supplier acknowledges and agrees that the Client shall, if requested by any competent authority, withhold from payments due from the Client to the Supplier under this Contract all such taxes and pay such amounts to such competent authorities.
To the extent that the Works 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.
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.
For the avoidance of doubt, it shall always remain the sole responsibility of the Supplier to:
- assess the VAT rate(s) and tax liability arising out of or in connection with the Purchase Order; and
- 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
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:
- Where the Supplier is subject to a VAT ruling(s) in connection with the Purchase
- 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
- 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
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/Contract or out of any of the circumstances mentioned in the above paragraph."
The Supplier may invoice the Client on or at any time after performance of the Services, as the case may be, and each invoice shall quote the PO.
Unless otherwise stated in the Order, the Client shall pay the Price within sixty (60) days after receipt by the Client of original invoice with supporting documents or, if later, after acceptance of the Services in question by the Client and the issuance of the Certificate of Completion as described hereunder.
The Client may, with notice to the Supplier, set off, deduct or withhold against the Price any sums owed to the Client by the Supplier or which the Client may dispute are due to the Supplier including none compliance to HSE minimum standards as outlined by Client, provided that if the Supplier disagrees with such set off, deduction or withholding, the matter shall be expeditiously referred to an independent third party expert (an “Expert Determination”) in accordance with Clause 23 herein. The decision of the Expert Determination shall be final and binding on the Parties unless written notice of dissatisfaction with the decision is given by one Party to the other Party within 30 days of such Party's receipt of the Expert Determination's decision, in which case such dispute shall be settled pursuant to Clause 23.
- DELIVERY AND ACCEPTANCE
The Supplier undertakes to deliver the Products and/or Services to the locations/on the dates/within the periods indicated on the Purchase Order/Contract during the opening hours of the department responsible for acceptance of said Products and/or Services. Any Product in consideration should be suitable for storage for a period of up to 12 months.
If Services are provided onsite, the Supplier shall comply with the Client’s health and safety regulations (refer to clause 22 hereunder) and measures applicable to external companies working on the Client’s site.
The Products and/or Services delivered shall comply fully with the quality and quantity conditions stipulated in the Purchase Order/Contract 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) Business 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.
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 and/or Service 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 the Supplier, and without prejudice to any damages or compensation it may claim for all resulting damages.
Should the Client conditionally accept the Products and/or Services, the Supplier shall 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 and/or Services. The price shall not
be due, and the Supplier shall refund any advance payment paid by the Client as quickly as possible. If the Products and/or Services are accepted unconditionally or if the initial conditional acceptance is confirmed unconditionally, the Client shall declare acceptance in writing ("the Acceptance").
- PERFORMANCE, TITLE AND RISKS
The Supplier shall bear the risk of damage to the Services until the Client issues the Certificate of Completion whereupon the risk shall pass to the Client or the owner (as applicable).
The Services shall be performed at the Place of Work, and on the date or within the period stated in the Order, in either case during the Client’s usual business hours.
The Client shall be responsible for obtaining customs clearance for any Materials, tools, and equipment that the Supplier may use during the provision of the Services and the Supplier shall be responsible for all inland transportation costs and fees up to the Place of Work. The Client will inform the Supplier in case any support is required. The Supplier will collaborate and support the Client as required.
In case where the starting date for the provision of the Services has to be specified after the placing of the Order, the Supplier shall inform the Client of such date with a reasonable notice.
The time of performance of the Services is of the essence in the Contract.
If the Services are to be performed, by instalments, the Contract will be treated as a single contract and not severable.
The Client may reject any portion of the Services performed which are not in accordance with the Contract and shall not be deemed to have accepted any Services until the Client has had a reasonable time to inspect them following the completion of Work or, if later, within a reasonable time after any latent defect in the Work has become apparent.
The Supplier shall promptly provide the Client with any instructions or other information required to enable the Client to accept performance of the Services.
If the Services are not performed on the due date, then, without limiting any other remedy, the Client shall be entitled to claim from the Supplier by way of delay liquidated damages, two (2) per cent of the relevant PO price for every day of delay. The Parties agree that such amount is a genuine and reasonable pre-estimate of the damages likely to be sustained by Client in such a delay situation.
- WARRANTIES, LIABILITY & INSURANCE
The Supplier warrants to the Client that:
- the Materials shall be of satisfactory quality (within the meaning of that term under the laws of England & Wales) and fit for purpose (within the meaning of that term under the laws of England & Wales) for any purpose held out by the Supplier or made known to the Supplier in Writing at the time the Order is placed;
- the Works shall be free from defects in design, material and workmanship;
- the Services and the Materials shall correspond with any relevant Specification or sample;
- the Services and the Materials shall comply with all statutory requirements and regulations relating to the performing of the Services;
- all Services shall be completed in a professional, workmanlike manner and in accordance with applicable specifications and good industry standards;
- the Services provided under the Contract shall not infringe or violate any patents, trade secrets, trademarks copyrights or other rights of any third party;
- to the extent applicable, Supplier shall assign all express warranties of any manufacturer of the products for the benefit of Client;
- Supplier shall perform all Services with due diligence and efficiency and in accordance with good practices and accepted professional standards and meeting the intents and obligations outlined in and implied from the Contract; and
- Supplier has satisfied itself as to the nature of the Services, the correctness and sufficiency of the rates and prices stated in the Contract, general and local conditions of the Place of Work and all other matters which could affect performance of the
The Supplier and the Client represent, warrant, agree and undertake to each other that:
- neither the Supplier, any of its Affiliates, owners, officers, directors, employees or other representatives at the date of the entering into the Contract, has offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Contract and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so;
- in the case of the Supplier, neither the Supplier, nor any of its Affiliates, owners, officers, directors, employees or other representatives during the term of this Contract will perform any Prohibited Act, in relation to the performance of the Services under this Contract;
- in the case of the Client, neither the Client, nor any of its Affiliates, owners, officers, directors, employees or other representatives during the term of this Contract will perform any Prohibited Act, in relation to the performance of this Contract;
- both the Supplier and the Client covenant that should it become aware of any Prohibited Act relating to the performance of this Contract, it shall promptly notify the other Party and shall cooperate in good faith with any concerns of such nature of which it may be notified by the other Either Party may by written notice require the other Party to remove (or cause to be removed) anyone who is involved in the performance of this Contract, who in the reasonable opinion of the notifying Party, has committed or may be involved in the committing of a Prohibited Act;
- the Supplier shall insure that the contracts with all its personnel and all subcontractors contain anti-bribery and anti-corruption provisions
Notwithstanding any limitation of liability in this Contract, either Party shall indemnify to the fullest extent possible and hold the other Party and its Affiliates, owners, officers, directors, employees or other representatives harmless from and against any and all claims, actions, damages, losses, penalties, costs, and expenses, including court and legal fees, from which any of them may suffer or incur as a result of, or in connection with any Prohibited Act and non-compliance with this provision, by such Party or any of its Affiliates, owners, officers, directors, employees, or other representatives.
Without limiting any other remedy, if any Services are not supplied or performed in accordance with the Contract, then subject to Clause 6, the Client shall be entitled:
- to require the Supplier to repair and/or re-perform the Services in accordance with the Contract and at no cost to the Client as soon as possible of being notified as further described in Clause 6; or
- at the Client’s sole option, and whether or not the Client has previously required the Supplier to repair or re-perform of Services, to treat the Contract as discharged by the Supplier’s breach and require the repayment of any part of the Price which has been already paid;
The Supplier shall indemnify the Client in full to a maximum of the total PO value against all liabilities, loss, damages, costs, and expenses (including legal expenses) awarded against or incurred or paid by the Client as a result of or in connection with:
- breach of any warranty given by the Supplier in relation to the Services;
- any liability under applicable consumer protection legislation in respect of the Services;
- any act or omission of the Supplier or its employees, agents, or sub- contractors in supplying, delivering, installing, and performing the Services; and
- any act or omission of any of the Supplier’s personnel in connection with the performance of the
Neither Party shall be liable to the other for indirect or consequential losses or damage of any nature whatsoever, including, but not limited to, lost management time, economic loss or other loss of business, production, revenue, profit, goodwill, loss of data and anticipated savings or tax mitigation or similar losses.
Neither the Supplier nor the Client shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure: (i) is beyond that Party’s reasonable control; (ii) cannot be prevented, avoided or removed by the affected party despite the exercise of reasonable diligence; and (iii) not attributable to the affected party (a “Force Majeure Event”). Without limiting the foregoing, the following shall be regarded as Force Majeure Events provided they meet all the requirements directly above:
- Explosion, fire, flood, tempest, earthquake, cyclone, tornado, tsunami or other natural disaster or Act of God;
- war or threat of war, sabotage, insurrection, civil disturbance or requisition;
- acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- import or export regulations or embargoes;
- strikes, lockouts or other industrial actions or trade disputes (whether involving employees or either the Supplier or the Client or of a third party);
- difficulties in obtaining raw materials, labour, fuel, parts, or machinery; and
- power failure or breakdown in
months as from the date of Acceptance. In the same way, the Supplier undertakes to repair or replace, at the Client's discretion and at the Supplier's own cost, all defaults, defects, and non-conformities of the Products and/or Services identified during this period and shall hold the Client harmless from any resulting damages. In the event of repairs to or replacement of Products, a new warranty period of twenty-four (24) months for said Products shall commence on the date upon which the repaired or replaced Products are delivered or are put into service. All costs or charges incurred during the implementation of these warranties shall be borne by the Supplier.
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.
The Supplier shall at all times remain responsible to 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 worker’s compensation and a general comprehensive third party liability 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 the Purchase Order.
The Client may ask the Supplier a copy of the insurance policies taken out by the Supplier. The insurance policies shall be entered 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 and 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.
- 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 or Services, 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 or Services.
- COMPLIANCE WITH REGULATIONS
The Products delivered and the 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/or Services. All dangerous Products shall be delivered with a material safety data sheet in accordance with national applicable regulations. All documents and certificates shall be supplied at the same time as the Purchase Order and form an integral part thereof.
The Supplier shall not disclose the existence of this Contract without the consent of the Client, which consent will not be unreasonably withheld.
For a period of five (5) years from receipt, the Supplier shall treat the information as confidential, including but not limited to the confidential information belonging to the Client which is disclosed to or obtained by the Supplier as a result of the discussions and negotiations leading to this Contract or of its implementation / performance. Confidential information
includes but is not limited to non-public information which the Client designates as being confidential or which under the circumstances surrounding its disclosure or by virtue of its nature ought to be treated as confidential by the Supplier (“Confidential Information”). The obligations of non-disclosure and confidentiality shall not extend to the Supplier in respect of anything which:
- is in the public domain other than as a result of a breach of these obligations;
- was in the Supplier’s records prior to the date of this Contract; or,
- is required to be disclosed under a legal or regulatory
It is understood that the Supplier will inform its officers and personnel of the confidential nature of the Confidential Information and will require them to be bound by the terms of this clause or to obligations equivalent to those stated herein and not to disclose Confidential Information to any other person.
The Supplier acknowledges that while its personnel are working at the Client’s premises they might be exposed to information about the business and functions of the Client and of its regulated businesses which amounts to a trade secret, is confidential or is commercially sensitive. Supplier’s personnel might also be exposed to information that is provided by regulated businesses to the Client while carrying out its functions. Such confidential information may not be readily available to the business community, the press, or the general public and if disclosed will be liable to cause significant harm to the Client or its regulated businesses and, in the case of information provided to the Client by its regulated businesses, disclosure may constitute a criminal offence. Accordingly, the Supplier shall not under any condition share any information, documents, reports, or conversations whether made or not made available to Supplier directly and/or indirectly through hearing and/or reading.
All Materials, including documents, drawings, Specifications, and tools, furnished, or paid for by Client shall remain the exclusive property of Client. All documents, drawings, and Specifications shall be considered confidential and not disclosed to any third party. All materials shall be returned to Clients upon Supplier’s completion of its obligations under the Order. Supplier assumes all liability for loss or damage of such Materials, excluding normal wear and tear.
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.
- INTELLECTUAL PROPERTY RIGHTS
The Supplier shall grant to the Client all necessary intellectual property rights right to use the Products and/or 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 the 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/or Services supplied under the Purchase Order, and shall be fully responsible, as regards to 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/or Services which would violate the intellectual property rights of a third party or to replace them with similar, or equivalent deliverables, Products and/or Services. If this is not possible, the Client may terminate the Purchase Order/Contract without prejudice to any damages it may claim.
- TERMINATION & SUSPENSION
The Client may terminate the Contract by giving notice to the Supplier at any time if:
- the Supplier makes any composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters into administration or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or a moratorium comes into force in respect of the Supplier (within the meaning of applicable insolvency legislation); or
- an encumbrance takes possession, or a receiver is appointed over any of the property or Supplier’s assets; or
- the Supplier ceases, or threatens to cease, to carry on business; or
- the Supplier is in breach of any of the material provisions of this Contract (including if there is a continuous disregard of the Client’s HSE minimum requirements); or
- the Client reasonably apprehends that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier
Notwithstanding anything to the contrary the Client shall have the right at its sole discretion to suspend all or part of the Order at any time subject to delivering to the Supplier a notice of suspension in Writing. Said suspension shall take effect from the date of reception of the written notice sent by the Client to the Supplier (the “Reception Date”) and the Supplier shall temporarily stop the execution of the affected Order. For the avoidance of doubt, during the suspension, the obligations arising from the Order shall be suspended only with regards to the provision of the goods, while those relating to confidentiality, insurance, patents, and custody of goods shall remain in full force and effect.
The implementation of the Order shall be resumed by the Supplier upon receiving a notice in Writing from the Client. If, subject to receiving the said notification, the Supplier refuses to resume the implementation of the Order, the Client shall have the right to terminate the Contract. The Client shall also have the right to terminate the Contract in case the Supplier suspends the Order without providing Client with a legitimate reason accepted by the Client.
If the suspension of the Order, in the absence of Supplier’s default, is prolonged for more than ninety (90) days from Reception Date, the Parties shall agree upon the basis of continuation of the Order or if such a continuation proves to be impossible, the Contract will automatically be terminated.
- ETHICS AND SUSTAINABILITY
The Supplier acknowledges that it has been duly informed of, and agrees to abide by, the ENGIE commitments on ethics and social and environmental responsibility, as set out in the Ethics Charter & Practical Guide to Ethics, the Code of Conduct in Supplier Relations, and its Vigilance Plan, which are posted on its website www.engie.com.
The Supplier represents and warrants to the Client that it shall comply with the international and national laws applicable to these General Terms & Conditions (including any amendments made to those laws during the term of these General Terms & Conditions), and that it complied with those laws during the six-year period immediately preceding the signing of these General Terms & Conditions, in relation to: (i) fundamental human rights and in particular the prohibition of (a) using child labour and any form of forced or compulsory labour; (b) organizing any form of discrimination within its company or towards the suppliers and sub-contractors; (ii) embargos, drugs and weapons trafficking, and terrorism; (iii) trade, import and export licenses, and customs requirements; (iv) health and safety of staff and third parties; (v) labour, immigration and prohibition of using illegal workers; (vi) environmental 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 its name and on behalf of its suppliers and sub-contractors with the same rules.
When the Client requests so, the Supplier should evaluate its performance in terms of the environment, ethics, human rights, and sustainable purchasing at its expense. This evaluation will be run by a third party appointed by the Client. In the absence of an assessment before the contract signature date, the supplier shall make sure that he gets its assessment done within 6 months from that date. The lack of assessment performed by the designated third party within this period will be considered by the Client as a breach of the Contract.
The Supplier undertakes to actively cooperate with the Client to allow the Client to fulfil its own legal obligations arising under its Vigilance Plan. To this end, the Supplier shall assist, in particular, with the implementation of the measures set out in the Vigilance Plan as stated above (risk mapping, alert and whistleblowing mechanism etc.) and immediately report to the Client any serious breach or, any circumstances that could potentially constitute a serious breach of the above-mentioned rules, in the performance of its relationship with the Client.
The Client has the right to require the Supplier, to provide the evidence that it has complied with the rules of this Clause, and to carry out audits or have them carried out.
Any breaches of the provisions of this Clause shall constitute a contractual breach entitling the Client to suspend and/or terminate the Purchase Order at the Supplier’s exclusive expense, in accordance with the terms and conditions set forth in the Purchase Order.
In supplying the Products / Services / Works, the Supplier shall implement administrative, physical, and technical safeguards that are no less rigorous than accepted industry practices on cybersecurity such as ISO27002, NIST Cybersecurity Framework, or other similar industry standards for cybersecurity.
When access to the Client’s systems or networks are in the scope of the engagement, then without prejudice to the generality of Clause 15, the Supplier shall comply with all of the Client’s cybersecurity requirements, directions, policies and procedures as specified in the Purchase Order or
which are notified to the Supplier from time to time during the term of the Purchase Order.
If the Supplier becomes aware of any actual or suspected (a) action taken through the use of computer networks that results in an actual or potentially adverse effect on the Supplier’s information system and/or Client Data residing on that system (“Cyber Incident”); or (b) any other unauthorised access or use by a third party or misuse, damage or destruction by any person (“Other Incident”), the Supplier shall notify the Client in writing immediately after becoming aware of the Cyber Incident or Other Incident; and comply with any directions issued by the Client in connection with the Cyber Incident or Other Incident, including: (i) obtaining evidence about how, when and by whom the Supplier’s information system and/or the Client Data has or may have been compromised, providing it to the Client, and preserving and protecting that evidence for a period of up to twelve (12) months; (ii) implementing any mitigation strategies to reduce the impact of the Cyber Incident or Other Incident or the likelihood or impact of any future similar incident; and (iii) preserving and protecting Client Data (including as necessary reverting to any backup or alternative site or taking other action to recover Client Data).
The Supplier shall ensure that: (a) all subcontracts and other supply chain arrangements, which may allow or cause access to Client Data, contain no provisions that are inconsistent with Clauses 15; and (b) all of the Supplier’s Personnel and subcontractors who have access to Client Data comply with Clauses 15.
The Supplier shall do all things necessary to confirm its compliance with the obligations set out in Clause 10 (Confidentiality) and this Clause 15, as well as any applicable laws, regulations, and industry standards on cybersecurity. Without limitation to the foregoing, upon the Client’s written request, the Supplier shall promptly and accurately complete a written information security/cybersecurity questionnaire provided by the Client or a third party on the Client’s behalf regarding the Supplier’s business practices and information technology environment in relation to all Services / Products / Works being provided by the Supplier to the Client pursuant to the Purchase Order. The Supplier shall fully cooperate with such inquiries; and provide the Client or a third party on the Client’s behalf, access to perform an assessment, audit, examination, or review of all the Supplier’s physical and/or technical environment in relation to all Services / Products / Works. Such access shall include access to knowledgeable Supplier’s personnel, physical premises, documentation, infrastructure (including but not limited to facilities, networks, systems, and equipment), application software and subcontractors that are used to supply the Services / Products / Works to the Client. In addition, upon the Client’s written request, the Supplier shall provide the Client with the results of any audit regarding the performance of the Supplier’s cybersecurity program. If the assessment, audit, examination, or review identifies any breach, the Supplier shall do all things necessary to promptly remedy the breach. The requirement to remedy the breach is in addition to any other right or remedy of the Client in the Purchase Order.
- PERSONAL DATA PROTECTION
In order to supply Products and/or Services, the Supplier may be required to process data, especially any information relating to an identified or identifiable natural person (“Personal Data”), belonging to the Client and the Client's employees.
The Supplier agrees to abide by the provisions of any applicable local laws governing data processing and privacy. The Supplier is required to process the Client's Personal Data in accordance with instructions of the latter and will not use said Personal Data for purposes other than those specifically defined and authorised by the Client. 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 as defined by the Client in this contract; (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; and (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.
Sharing the Client's Personal Data with a third party, regardless of its location, is not authorised unless the Supplier first obtains the Client's express consent.
The Client reserves the right to carry out or to have carried out by a duly qualified third party any reasonable on-site checks to ensure the Supplier meets the aforementioned obligations appearing in this section after having informed the Supplier beforehand.
- INCIDENT MANAGEMENT
The Supplier shall maintain incident management policies and procedures, including detailed security incident escalation procedures. The Supplier shall promptly notify the Client in the event the Supplier becomes aware of an actual or reasonably suspected unauthorized disclosure of the Personal Data, Client’s data, or any Customer Confidential Information. The Supplier is required to maintain all incident management records for a period of five (5) years following the date upon which the Purchase Order was placed. In the event of a security breach or a legal discovery process, the Supplier shall provide within a reasonable time, additional data logs that could assist the Client to solve the security breach or the legal discovery process.
The Supplier shall be solely responsible for the correct execution of the PO/Contract. 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.
- GENERAL PROVISIONS
The Client is an Affiliate of ENGIE S.A., and accordingly the Client may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Client.
The Order is personal to the Supplier and the Supplier shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract.
A notice required or permitted to be given by either Party to the other under these Terms shall be in Writing addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified under this provision to the Party giving the notice.
No waiver by the Client of any breach of the Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision.
The failure by the Client, whether or not deliberate, to exercise a right or to insist on the precise performance of this Contract, or its delay in doing so, shall not affect its future exercise or enforcement of rights.
If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
The Supplier shall at all relevant times maintain, at its own cost, such insurance cover (with a reputable international insurer) as is best practice in its business sector and is appropriate (both in scope and quantum of cover) to the value and nature of this Contract and the risks inherent in its performance, including but not limited to, personal injury, death, third party liability and/or equipment’s.
The Supplier agrees to provide the Client with a certificate of insurance evidencing the insurance coverage referred to in above clause if requested by the Client.
Supplier shall adhere to any HSE standards prescribed by regulations, law, or the Client. Any written notice by Client to (re)align with those HSE standards shall be acted upon by the date specified in that notice. The Supplier shall take whatever action that may be necessary on its part such that its deputed personnel and subcontractors are provided with a workplace that is free from recognized hazards that are likely to cause death or serious physical harm and are able to perform the Services in a safe manner, in accordance with HSE standards as prescribed by regulations, law, or the Client. The Supplier shall provide all its deputed personnel with appropriate personal protective equipment, during the performance of the Services at project sites at its own cost and as advised by the Client. Supplier shall notify Client immediately of any accidents, incidents, impending or actual stoppages of work, industrial disputes or other matters which are likely to affect the rendering of the Services, the interests, or other operations of Client and/or the owner (as applicable).
The Supplier shall provide material safety data sheets (MSDS) for all chemicals that it may be using at site. The Supplier’s personnel and employees must show understanding for those MSDS before conducting the work.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other Party, nor authorize either Party to make or enter into any commitments for or on behalf of the other Party.
These Terms constitute the entire terms for the rendering of Services and shall not be modified except in Writing. These Terms supersede all prior agreements, arrangements, or understandings whether in writing or otherwise between the Parties.
A provision which either in its terms or from its intent is to survive termination of this Contract shall remain in force however the termination occurs.
Supplier agrees not to use the name of Client or disclose the existence of the PO in any advertising, promotion or other written or oral disclosure without the prior written consent of Client.
Except where it is expressly provided that Client shall provide an item of materials or equipment, Supplier shall provide all materials, equipment and all other things necessary for performance of the Services, so far as the necessity for providing the same is specified in or is reasonably to be inferred from the PO. Materials, tools and equipment or parts thereof provided by Supplier for which there is no detailed specification included in the PO shall be fit for their intended purpose and of best quality and workmanship. Supplier shall be fully responsible for all repairs, maintenance, overhaul and servicing of all tools and equipment provided by Supplier.
The Supplier shall commence the work by the commencement date and complete it by the completion date pursuant to the Order.
Supplier shall provide uniforms and other Personal Protection Equipment (including adequate footwear), plus provide name tag to be worn by Supplier personnel in performance of their respective duties under this Contract.
Third Party’s Rights Act 1999: Unless otherwise expressly provided for herein, the Parties to this Contract do not intend that any term of this Contract should be enforced, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to this Contract and the application of the Third party’s Rights Act is expressly excluded.
- SPECIFICS & SUPPLIER PERSONNEL (CUSTOMIZABLE FOR SERVICES)
The quantity, quality and description of the Services and the Scope of Work shall, subject as provided in these Terms, be as specified in the Order and/or in any applicable Specification supplied by the Client to the Supplier or agreed in Writing by the Client.
Unless otherwise specified in the PO, all Services shall be commenced and performed in the location specified in the PO. Commencement and performance of Services shall be in accordance with the times set forth in the PO, unless otherwise agreed to by Client. Delays in commencement and/or performance shall be reported immediately by Supplier to Client. Client reserves the right to cancel the PO, in whole or in part, if Supplier should fail to commence and/or perform the Services in accordance with these Terms and/or the PO. Services shall be commenced and performed on the days, between the times and at the address stated in the PO.
Any Specification supplied by the Client to the Supplier, or specifically produced by the Supplier for the Client, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Client, and the Supplier assigns with full title guarantee to the Client all such copyright, design rights and other intellectual property for no further consideration, subject only to the payment of the Price. The Supplier shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Supplier, or as required for the purpose of the Contract.
The Supplier shall comply with all applicable regulations or other legal or contractual requirements concerning the manufacture, packaging, packing,
handling, treatment and/or delivery of the Materials necessary for the performance of the Services.
The Supplier shall not unreasonably refuse any request by the Client to inspect the performance of Services and/or test the Materials during storage at the premises of the Supplier or any third party prior to commencement of Work, and the Supplier shall provide the Client with all facilities reasonably required for inspection and testing. The Client shall also have the right to inspect any tools used by the Supplier for the performance of Works.
The Client shall have the right to inspect and/or test the Services, which if exercised shall be undertaken within a reasonable time frame from the date of delivery / performance. Following the issuance of the Certificate of Completion, if the Client is not satisfied that the Services comply in all respects with the Contract and/or are not of a satisfactory standard, it may inform the Supplier and the Supplier shall take necessary steps to ensure compliance including repair or re-performance of such nonconforming Services or portion of the Services within fourteen (14) days of being notified and at no additional cost to the Client. The Client shall be entitled to inform the Supplier of any such non-compliance throughout the duration of the Contract and for a period of 12 months following the Certificate of Completion. Any re-worked, repaired, or replaced part of the Services shall be re-warranted under equivalent terms, provided that Supplier’s aggregate warranty period shall not exceed twenty-four (24) months from Certificate of Completion.
No Services furnished by the Supplier shall be deemed to be defective by reason of normal wear and tear, failure to resist erosive or corrosive action of any fluid or gas, the Client’s failure to properly operate and maintain the equipment on which the Services will be carried out in accordance with good industry practices or specific recommendations of the Supplier. The Client shall grant the Supplier access to the site to correct defects, but the Supplier shall be liable for the costs of removal, reinstallation, or gaining access to the defective Works if such defective Works is the result of workmanship solely attributable to the Supplier. Other than as expressly provider herein, the re-performance, repair or reperformance of the Services by the Supplier under the provisions of this Contract shall constitute the Supplier’s sole obligation and the Client’s sole and exclusive remedy for all claims of defects regarding the Services. If despite Supplier’s reasonable efforts, a non-conforming part cannot be repaired or replaced, or non-conforming Services cannot be re-performed, the Supplier shall refund, or credit monies paid by the Client for such non-conforming parts and Services.
The Materials shall be marked in accordance with the Client’s instructions and any applicable regulations or requirements, and properly packed and secured to reach their destination in an undamaged and safe condition in the ordinary course.
The Client may at any time request modification to the Scope of Work by giving notice in Writing to the Supplier. On receipt of this notice, Supplier shall, within five (5) Business Days, or such other period as may be agreed between the Parties, advise Client by notice in Writing of the effect of such modification, if any, on the Price and any other terms already agreed between the Parties. If required, the Parties will negotiate in good faith an equitable adjustment to the Price.
Supplier warrants that, in the provision of the Services, Supplier’s personnel shall exercise the highest degree of care, skills and due diligence ordinarily expected from contractors engaged in the same type of undertaking. Supplier further warrants that it shall continuously provide all necessary Supplier personnel and shall ensure that Supplier personnel are not replaced without the prior approval of Client to a suitable successor.
Supplier warrants that all Supplier personnel have sufficient qualifications and experience to perform their tasks safely, competently, and efficiently, and shall ensure that they are healthy, fit and suitable in every respect to perform the Services. Supplier shall also ensure that all Supplier personnel qualifications or experience levels meet or exceed any particular minimum standards or other requirements which are specified by Client. Supplier shall supply Client with evidence of the qualifications, training, and experience of Supplier personnel, and shall promptly submit any detailed information which is required by Client concerning Supplier personnel in order to enable Client to review the information and notify Supplier of approval/rejection.
Client may request Supplier to remove any of its officers, employees, personnel, subcontractors or agents from performing the Services with a valid reason. The person shall be removed forthwith at the expense of Supplier and shall not be engaged on the Services again or on any other work of Client without prior Client’s approval. Persons who have been removed from the Services shall immediately be replaced, if Client so requires, by other suitably qualified persons acceptable to Client; and this person should not be assigned to work on any other contract, site or project with any of the Affiliates of the Client, as result of the tender in which this contract was awarded to the Supplier.