(SUPPLY OF GOODS & SERVICES)
- General. In these General Terms and Conditions, the following definitions shall apply: “HCT” shall mean Higher Colleges of Technology, having its registered office at P.O. Box 25026, Abu Dhabi, United Arab Emirates, its subsidiaries and affiliates; “the Supplier” shall mean the firm or individual providing services to HCT as described in this Agreement (the “Services”); “the Agreement” shall mean the Agreement Contract, these General Terms and Conditions and any other document or instruction issued by HCT to the Supplier in relation to the Services to be provided.
- The Supplier acknowledges and agrees that it has read and understands these General Terms and Conditions and the performance of the Services which are the subject of this Agreement will be deemed an express acceptance this Agreement. These General Terms and Conditions constitute the entire agreement between the Supplier and HCT and shall prevail over prior oral or written agreement, the Supplier general terms and conditions or any other document issued by the Supplier and any amendments, modifications, supplements, deletions, waivers or exclusions shall not be effective against HCT in the absence of the express written consent of an authorized employee of HCT.
- Price, invoicing and payment. Price quoted in the Agreement shall be binding, all inclusive (including packaging, transport, insurance, taxes (exclusive of VAT), expenses or costs) and not subject to any variation unless agreed in writing by HCT. Upon acceptance of the Services by HCT, the Supplier shall issue an invoice with the number or reference, quantity and description of the Services provided together with all supporting evidences and justifications. HCT shall pay the Supplier the price within sixty (60) days as from the date of receipt of the invoice.
- Advance Payment Guarantee. Prior to receiving any advance payment from HCT in respect of Goods/Services, the Supplier shall deposit with HCT an unconditional and irrevocable advance payment guarantee, the value of which shall be one hundred percent (100%) of the advance payment to be made to the Supplier under the order form (the “APG”). The APG shall authorize HCT at its discretion and without recourse to the Supplier, the Courts, or to any other third party, to cash the guaranteed sum on first demand whenever HCT is satisfied that the Supplier is in breach of any of the terms or conditions of this Purchase Order. The APG must be in such form and substance as is acceptable to HCT.
- Packaging and Delivery. The goods or equipment provided together with services shall be supplied with adequate environmentally friendly packaging in order to protect the goods or equipment and shall be prepared for shipment with proper information relating to hazardous materials, identification of the good and shipment details in accordance with standard international practice. A detailed delivery note must accompany all goods. Delivery shall take place according to the incoterm (Incoterms 2010) indicated in the Agreement and in the absence of such incoterm, title to the goods sold shall not pass to HCT until delivery of the goods to HCT’s facility and acceptance by HCT of the goods, whether or not payment has been made in full, and the risk and costs shall remain with the Supplier until delivery to HCT at its facility and acceptance of the goods. To the extent, and as applicable, any of the goods shipped or utilized by the Supplier are not the property of the Supplier or are subject to any lien, the Supplier must immediately notify HCT. Deliveries will be made in the quantities, on the dates, and at the times specified by HCT in this Agreement or any subsequent releases or instructions HCT issues under this Agreement. Time is of the essence with respect to all delivery schedules HCT establishes.
- Penalties. In the case of delay of the Supplier to supply the required quantities of goods or any part thereof beyond the contractual dates or where goods supplied are rejected for non-conformity with the goods specification, HCT may take any of the following measures: (i) give the Supplier an additional period for the supply if such is in the interests of HCT and in this case the prior consent of HCT department requesting the procurement shall be obtained, provided that the additional period may not exceed fifteen (15) days; or (ii) impose delay interest on the Supplier at the rate of (1%) of the value of the goods delayed for the first week or any part thereof, and (2%) for each following week or any part thereof, provided that such fine in aggregate may not exceed (10%) of the value of the goods delayed by the Supplier. In the case of failure to supply the delayed goods before expiry of the period referred to above, HCT shall have the right to take any of the following two measures: (i) Either procure the materials from another source charging the Supplier with any price difference and administrative expenses up to (10%) of the value of the goods procured at the expense of the Supplier, in addition to termination of the Agreement; or (ii) terminate the Agreement, encash the performance bond deducting appropriate compensation therefrom. In case the Supplier submits to the HCT Procurement Committee, within fifteen (15) days as from the date on which the incident causing delay occurred, the documents substantiating that this delay arose out of a Force Majeure or emergencies falling outside the Supplier’s control, the HCT Procurement Committee may consider relieving the Supplier from the delay fine. If the Supplier has delivered goods that do not comply with the undertakings set out in the Agreement, HCT shall have one or more of the following rights: (i) To claim compensation for any costs, loss or expenses incurred by HCT arising from the Supplier’s failure to supply goods in accordance with the Agreement; or (ii) to accept alternative identical goods or similar goods in conformity with the goods specification at their original value or at an inferior value as estimated by HCT procurement committee in its sole discretion. If HCT rejects any goods they are returnable at the Supplier’s risk and expense. If the Supplier fails to collect rejected goods within ten (10) days after notification of the rejection by HCT procurement Department, HCT may charge the Supplier a storage fine of one (1) % of the value of the goods for every week of delay, provided the total fine does not exceed five (5) % of such value, in addition to the prescribed delay fine. If the Supplier fails to collect rejected goods within a reasonable period after the above notification, HCT may sell the rejected goods and account to the Supplier for the proceeds of sale (if any) after deducting the purchase price paid for the goods and its reasonable costs and expenses in connection with the sale.
- Services. The Supplier shall provide HCT with the Services in accordance with these General Terms and Conditions and at such places as HCT may require from time to time. The Supplier shall at all times exercise skill, care and diligence in the carrying out of the Services and shall have the licenses, authorizations, consents, permits, resources, experience, qualifications and capabilities as are reasonably required to fully perform its obligations. The Supplier shall provide the full benefit of his international knowledge, expertise, technical skill and ingenuity in connection the performance of the Services and shall devote his time, attention and abilities at such time as may be necessary for the proper performance of the Services. The Supplier shall at all time provide the Services with due expedition and without delay. The Supplier shall promptly provide HCT with any information as HCT may reasonably require in connection with matters relating to the execution of the Services. The Supplier must in addition promptly send a written notice to HCT in case of any event which could have an adverse effect on the execution of the Services or on the Services by themselves. HCT may require the immediate suspension of any part of the Services as deemed appropriate by HCT upon written notice sent by HCT to the Supplier. In such event, the parties shall consider alternate solutions or actions needed to amend the scope of the Services, the price and the terms of the Agreement. The Supplier and the Supplier’s agents working within the premises of HCT (i.e. employees, consultants, advisors or agents) or any other location where the Services need to be performed, undertake to comply with any hygiene and security obligations relating to these premises. The Supplier procures that any of its agents or any person which will perform the Services in the name of the Supplier, will comply with these General Terms and Conditions. If HCT has reasonable grounds to be dissatisfied with the Services of any the Supplier’s employees or third party’s employees performing the Services under its supervision, HCT shall have the right to require the Supplier to replace such agent at the Supplier’s cost.
- Reports and Records. As part of the Services, the Supplier shall, on a monthly basis or otherwise agreed in writing between the parties, provide HCT with monthly progress reports detailing the Services with signed time sheets identifying each of the its personnel that performed the Services during the month, and specifying the amount of days worked by each of the such personnel together with the detailed description of the work. The Supplier shall keep complete and accurate records of the work completed for the execution of the Services. The Supplier shall provide HCT, no later than ten (30) days, unless otherwise agreed in writing between the parties, with (i) a cash receipts and disbursements report and (ii) a final report regarding the performance of the Services.
- Approval and Control. All of the Services performed by the Supplier pursuant to the Agreement and the activities and subjects related thereto shall be subject to the supervision and approval of HCT. Supplier shall consult with HCT throughout the term of the Agreement regarding all matters relating to the Services.
- Inspection. HCT and its representatives and consultants shall be entitled subject to reasonable prior notice to enter the Supplier’s and its sub-contractors (if applicable) facilities to inspect such facilities and to inspect and test on the premises of the Supplier or its sub-contractors (if applicable), all goods, work-in-process and other items or processes related to the Supplier’s performance of this Agreement. Such inspection and testing shall not release the Supplier from any obligation under this Agreement.
- Completion of Services. The Supplier shall perform the Services and provide HCT with the deliverables in accordance with the agreed time schedule. If the Supplier fails to deliver the Services on the delivery date, the Supplier shall pay a penalty of 1% of the non-supplied value of the Agreement for the first week of delay; 2% of the non-supplied value of the Agreement per week following the first week of delay (and prorate portion thereof) up to a maximum amount of 10% of the total value of the Agreement. Upon completion of each deliverable and the entire Services, the Supplier shall provide HCT with a completion certificate for signature and acceptance of the deliverables and / or Services shall take place within ten (10) working days as from signature by HCT of the completion certificate. A working day means any day other than a Friday, Saturday, national bank holidays, on which commercial banks are open for business in Abu Dhabi. If HCT rejects any deliverable or all or part of the Services as non-conforming with the Agreement, HCT may, at its option: (a) require the Supplier to amend and take all corrective measures to HCT’s entire satisfaction, and/or; (b) to recover from the Supplier any expenditure incurred by HCT in obtaining substitute services from a third party and/or (c) suspend or terminate the Agreement or (d) exercise any other applicable rights or remedies. HCT’s payment for any non-conforming Services will not constitute acceptance by HCT, limit or impair HCT’s right to exercise any rights or remedies, or relieve the Supplier of responsibility for the non-conforming Services.
- Performance Bond. The Supplier shall submit the performance bond within fourteen (14) days of being notified thereof, at a value specified by the HCT procurement committee and the HCT procurement department provided such value is not less than 10% of the estimated value of the Agreement. If the performance bond value becomes less than the value specified in the Agreement by virtue of being drawn down or through increase in the scope of work, the Supplier shall increase the value of the performance bond to the required amount within fifteen (15) days of being notified thereof. In the event of any delay in such increase, HCT may deduct the required amount from the payments due to the Supplier under the relevant Agreement or any other contract. The performance bond shall be drafted in the Arabic language. In the event the performance bond is drafted in both Arabic and English and in case of conflict between both versions, the Arabic version shall prevail].
- Warranty. The Supplier warrants and guarantees to HCT, its successors, assigns, and customers that (i) the Supplier is duly organized and registered under applicable law, (ii) the Supplier has the requisite power and authority to execute the Agreement and to consummate the transactions contemplated by the Agreement, (iii) upon signing of the Agreement, these Terms and Conditions shall constitute the valid and binding obligation of Supplier, enforceable against Supplier in accordance with its terms, and (iv) the execution and delivery by Supplier of this Terms and Conditions do not and will not violate any provision of the organizational, professional rules or constituent documents of Supplier. The Supplier further represents and warrants that the Services covered by this Agreement shall: (a) be to the approval of HCT, in its absolute and sole discretion; (b) shall be fit and sufficient for the purpose for which they are intended; (c) conform to all specifications agreed in the Agreement, samples, descriptions, brochures and manuals furnished by the Supplier to HCT; (d) be merchantable; (e) be of good material and workmanship; (f) be free from defect; (e) comply with applicable law and do not infringe third parties rights. If any deliverable or Services are reasonably determined to fail to conform to the warranties in this Agreement, the Supplier shall reimburse HCT for all losses, costs and damages caused by such nonconforming Services.
- Intellectual Property. In respect of the deliverables that are transferred to HCT as part of the Services, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to HCT, it will have full and unrestricted rights to sell and transfer all such items to HCT. The Supplier assigns to HCT, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Services. The Supplier shall, promptly at HCT’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as HCT may from time to time require for the purpose of securing for HCT the full benefit of the Agreement, including all right, title and interest in and to the Intellectual Property Rights assigned to HCT. “Intellectual Property” means any and all patents, trademarks, signs and services marks, rights in designs, trade or business names or signs, copyrights, trade secrets and database rights (whether or not any of these is registered and including applications for registration of any such thing, or any registrations or applications claiming priority to any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
- Indemnification. The Supplier shall defend, hold harmless and indemnify HCT from and against all or any costs, fees (including reasonable attorney and other professional fees, costs, disbursements and expenses), expenses, liabilities, losses, damages, suits, causes of action, claims or proceedings whatsoever for the following when arising out of, associated with or incidental to the performance of Services under this Agreement: (a) any breach or the Supplier under this Agreement; (b) all injuries to, deaths, accidents, illnesses and damage to property of, any person working for or on behalf of the Supplier and/or any third party; and (c) any third party claims or demands to recover for personal injury or death, property damage or economic loss caused by any of the Services supplied by the Supplier except to the extent such injury, damage or loss results from HCT’s specifications as to design or materials or from alternation or improper repair, maintenance or installation by any party other than the Supplier.
- Force Majeure. In the event that HCT is unable to accept delivery of the Services which are the subject of this Agreement, owing to a force majeure event (this including any event beyond the reasonable control of HCT such as act of God, war, civil commotion, riots, sabotage, labor disturbances, strikes, lockouts, severe weather, embargo, national mourning, government control) HCT reserves the right, in its absolute and sole discretion, and without any liability or indemnification obligation, to: (a) cancel this Agreement or any unexecuted part thereof or (b) to defer the delivery time(s) stated in this Agreement by such period or periods as may be reasonable.
- Insurance. The Supplier will maintain insurance coverage as required by applicable law and which shall be no less than AED 2,000,000 per claim. With respect to any such insurance coverage (which must at least include public liability insurance and employers liability insurance), the Supplier will furnish to HCT either a certificate evidencing satisfaction of the above-mentioned insurance requirements under this Agreement or certified copies of all insurance policies within ten (10) days after HCT’s request.
- Compliance with Laws; Rules; Regulations. The Supplier (and any subcontractors, agents, employees and affiliates of the Supplier), and any goods or Services supplied by the Supplier, shall at all times comply with all applicable laws, licenses, permissions, authorizations, acts, rules, regulations, orders, conventions, ordinances and standards of the country(ies) of origin and destination including all rules applicable to hazardous materials. In particular, the Supplier (and any subcontractors, agents, employees and affiliates of the Supplier) shall comply with the following, where applicable: (i) the environmental requirements provided for in the relevant federal legislations, regulations and decisions thereby issued; (ii) the wages’ protection policies applicable in the UAE; and (iii) the provisions of pension regulations of federal and local entities and the social insurance regulations of the private sector. The Supplier will indemnify and keep indemnified HCT from and against any liability, claims, demands, damages or expenses (including reasonable attorney or other professional fees and disbursements) arising from or relating to the Supplier’s noncompliance with this provision.
- Termination. Without affecting any other right or remedy available to it, HCT may terminate the Agreement upon the occurrence of one of the following events: (a) The Supplier fails to fulfil its contractual obligations due to declaration of bankruptcy or insolvency: HCT may terminate the Agreement and encash the performance bond; (b) The Supplier (being an individual) dies: HCT may terminate the Agreement and return the performance bond’s value to the heirs, offsetting the value of the Goods accepted to date (if any). HCT may retain the Agreement and allow the heirs to resume the execution in accordance with the provisions of the Agreement in case it is evident to HCT that the heirs or some of them have the requisite ability in their personal capacity, provided that the necessary measures as regard the Agreement, the consequences thereof and performance bond shall be taken; (c) The Supplier commits fraud, deception or bribery: HCT may terminate the Agreement, encash the performance bond, and execute the Agreement is at the expense of the Supplier, HCT reserving its right to put the supplier on the banned list for a period of a minimum of three (3) years; (d) The Supplier submits false information in the Supplier Classification Form: HCT may terminate the Agreement, encash the performance bond, and execute the Agreement is at the expense of the Supplier, HCT reserving its right to put the supplier on the banned list for a period of a minimum of three (3) years; (e) The Supplier commits a breach of any term of the Agreement (other than failing to perform the Service within the required dates or failing to perform at all); (f) The Agreement is no longer economically viable; (g) HCT no longer requires performance of the Services; (h) There is a change of control of the Supplier (being a company) and the holding company is unacceptable to HCT; (i) The Supplier is carrying on its business in a manner that would affect HCT’s reputation; and (j) is in breach of these General Terms and Conditions (k) fails at any time to assure proper completion of services or delivery of goods under the Agreement. In addition, HCT may terminate this Agreement, in whole or in part, at any time and for any reason, upon thirty (30) days’ notice to the Supplier. Upon termination by HCT for convenience, HCT shall have no further liability to the Supplier than to pay finished goods ordered or services completed and reimburse reasonable raw material and labour costs incurred and paid by Supplier in relation to the manufacture of the Goods. Upon termination by HCT due to the Supplier under a), b) and c) above HCT reserves the right to offset such payments against any claim or damages.
- Confidentiality. It is the Supplier’s duty not to disclose, or make any public announcement without HCT’s permission, any information made available to the Supplier or any person working for or on the Supplier’s behalf, or otherwise obtained by the Supplier concerning HCT, its affiliate, clients or business. This Agreement will be regarded as confidential by the Supplier, its personnel, employees, agents and sub-contractors. The Supplier agrees to use the same means as it uses to protect its own confidential information, and in any event not less than reasonable means, to prevent disclosure and to protect the confidentiality of the Supplier’s information which it has been given or otherwise obtained as set out above.
Confidential information shall not include: (a) information which is or becomes available to the public other than as a result of a disclosure by the Supplier; (b) information which was available to the Supplier on a non-confidential basis prior to its disclosure; (c) information which becomes available to the Supplier on a non-confidential basis from a source other than HCT, provided that such source is not known by the Supplier to be subject to any prohibition against transmitting the Confidential Information to the Supplier; or (d) information that its required to be disclosed to comply with any law, order, judgment, decree, or any rule, regulation, request, or inquiry of or by any government, court, administrative or regulatory agency or commission, other governmental or regulatory authority or any self-regulatory body.
- No amendment may be made to the Agreement except through an amendment order approved by HCT and ratified by the HCT procurement committee. The HCT procurement committee shall study and evaluate amendment applications by the Supplier and shall submit its recommendations with respect to approving or refusing the amendment to HCT within twenty-one (21) days as from the date on which the amendment application is submitted by the Supplier. HCT shall be entitled to amend the contract’s quantities by increasing or decreasing the prices before or during execution or extension of the Agreement, provided that the value of such quantities may not exceed (30%) of the contractual total amount. The operations of increase and decrease may not be offset, whatever the date on which the offset occurs. In the event the HCT procurement committee approves the variation, a specific form of deed of variation provided by HCT shall be used.
- Miscellaneous. The Supplier shall not, without the written consent of an authorized employee of HCT, sub-contract, assign or delegate its rights, obligations and/or any benefit under this Agreement.
The Supplier hereby acknowledges that HCT at any time, as applicable, recover, recoup or set-off any amount due by the Supplier to HCT by deducting such amounts from any sums that are due or payable to the Supplier.
If any provision of this Agreement (including these General Terms and Conditions) is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these General Terms and Conditions and the remainder of the provision in question shall remain in full force and effect. The Supplier and HCT shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
The failure of HCT at any time to require performance of the Supplier of any provision of this Agreement will not affect the right of HCT to require performance at any later time, nor will the waiver by HCT of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.
HCT and the Supplier are independent contracting parties. Nothing in this Agreement shall be construed to create a joint venture, partnership or employer/employee relationship between HCT and the Supplier and the Supplier has not power to represent HCT towards third parties.
The Supplier is responsible for ensuring that all of its personnel working on the premises of HCT (if applicable): (a) hold a valid residence visa or work permit; (b) comply with all other immigration, customs and legal requirements of any relevant authorities in the United Arab Emirates, the Emirate of Abu Dhabi and their home country of residence.
In no event shall HCT be liable for any amount in excess of the contract sum in this Agreement or any punitive, consequential or exemplary damages of any kind.
Any notice or other formal communication given under this Agreement must be in writing and may be delivered, or sent by courier delivery, electronic mail or fax to the Party to be served at the address appearing in this Agreement or at such other addresses as any such party may designate by a ten (10) days’ advance written notice to the other party.
The Supplier and its officers, directors, employees, or agents shall use only legitimate business and ethical practices in commercial operations. Neither the Supplier nor its officers, directors, employees, or agents shall pay, offer, promise, or authorize the payment, directly or indirectly, of any monies or anything of value to any government official or employee or any political party or candidate for political office in contravention with applicable law.
- Governing Law; Jurisdiction; Dispute Resolution.
This Agreement shall be governed by and construed, performed and enforced in all respects in accordance with the laws of Abu Dhabi, United Arab of Emirates, and the Federal Laws of the United Arab Emirates, without giving effect to the principles of conflicts or choice of law provisions therein. Any dispute which may arise under, out of or in connection with or in relation to this Agreement, shall be settled by the relevant Abu Dhabi Courts.
- Terms and conditions of Cabinet Resolution 32/2014 shall apply.
HCT reserves the right to contract with other parties, and engage in similar agreements/PO’s with other parties, for the purpose of rendering the same kind of service under this Purchase Order.