Tebodin Middle East Ltd. P.O. Box 2652, Abu Dhabi, United Arab Emirates General Conditions for Consultancy Services Agreements 6 01.08.2016 Effective date definition changed and Vendor Declaration added AFP SG 5 01.04.2016 Conditions for entitlement to payment added AFP SG 4 01.03.2016 Term of payment changed to 90 calendar days AFP SG 3 01.01.2014 Requirement for Certification and Release Added AFP SG 2 25.6.2013 OHSE Terms added AFP SA 1 01.05.2012 Terms and Conditions revised AFP MvL 0 01.03.2011 Issued as standard template AFP TB Rev. Date Description Author Checked by Page 1 of 7
1 GUARANTEES Consultant guarantees that the Services shall comply strictly with the provisions of this Agreement and all exhibits, drawings, specifications and documents referred to in this Agreement or thereafter furnished by TME, and that the Services shall be performed with the professional standard of care, skill and diligence required for such services, and that the Services will be performed by professional and experienced employees who hold qualifications commensurate with the requirements of the Services. Consultant is hereby given notice that TME will be relying on the competence of Consultant and its employees and on the accuracy and completeness of Consultant's Services hereunder in utilising the results of such Services. Consultant shall perform services using nominated, key personnel approved by TME and will not substitute any nominated, key personnel without express, written permission from TME. In addition to all other rights and remedies which TME may have, Consultant shall at its own expense promptly re-perform the Services to correct any deficiencies which result from Consultant's failure to perform as guaranteed. Consultant s guarantee set forth above shall extend for twenty-four (24) calendar months after termination of this Agreement. 2 CONFLICT IN DOCUMENTS In the event of any conflict between or ambiguities in any documents which are a part of this Agreement, Consultant shall notify TME immediately, and parties shall agree upon a resolution of the conflict. 3 SUBCONTRACTS AND ASSIGNMENTS Consultant shall not subcontract or assign all or any portion of the Services without TME s prior written approval of the Subcontractor and the Subcontract. TME shall be entitled to assign this Agreement or any part thereof or any benefit or interest under it. 4 DELAYS AND FORCE MAJEURE Force Majeure is defined as any act, event, cause or occurrence which is not within the reasonable control of either Party and which renders a Party unable to perform its obligations. If a Party is delayed in performing any of its obligations in this Agreement as a result of Force Majeure, performance of such obligations shall be excused during the period of Force Majeure. Such Party shall immediately notify the other Party in writing of the date of inception of the Force Majeure condition and the extent to which it will affect performance. Consultant shall immediately, but not later than within five (5) working days of the commencement of any delay, give TME written notice thereof and of the anticipated effects thereof. Consultant shall exercise due diligence to shorten such delay and shall keep TME informed of the steps taken to shorten or terminate the delay. Consultant shall not be entitled to, and hereby expressly waives recovery of, any costs or damages suffered by reason of delays resulting from Force Majeure, and extension of time shall constitute Consultant s sole remedy for such delays. 5 CHANGES The Scope of Services may be subject to changes including changes in the method, frequency or sequence of performing the Services and the content of the Services. Consultant will be advised in writing of any such changes. Consultant shall promptly and strictly comply with each such change. 6 CHANGE REQUESTS Consultant shall give TME written notice within five (5) working days after any event which Consultant believes may give rise to a change by Consultant. Within five (5) working days after such event, Consultant shall supply TME with a written statement supporting Consultant's request, which statement shall include Consultant's detailed estimate of the change in cost and/or the performance schedule. TME will respond to Consultant s request within five (5) working days after receipt of such Page 2 of 7
request. Consultant shall not commence performance of any change prior to TME s confirmation of acceptance of the change. Where performance of the remainder of the Services will be delayed or otherwise impacted by the non-performance of the change, Consultant shall consult with TME in a timely fashion to determine how to proceed. Consultant hereby waives and releases TME and Client from any request not reported in accordance with this Article and from any request associated with accumulation of changes or the releasing of the required Services in portions. Each settled request will become an Amendment to this Agreement and shall by reference be incorporated therein. 7 INDEPENDENT TRADING ENTITY Nothing in this Agreement shall be deemed to represent that Consultant, or any of Consultant s employees or agents, are the agents, representatives or employees of TME or Client. Consultant shall be an Independent trading entity and shall have full responsibility for performing the Services, in accordance with the terms of this Agreement. TME will not withhold for income or social security premiums and taxes and Consultant agrees to pay such premiums and taxes directly to the appropriate authorities. Similarly, TME will not provide workers' compensation benefits or any form of insurance or other fringe benefits that may be furnished to employees. 8 PERMITS AND LICENCES Consultant shall keep current all governmental permits, certificates and licences (including professional licences) necessary for Consultant to perform the Services. 9 DOCUMENTATION AND RIGHT OF AUDIT Consultant shall maintain for a period of two (2) years after final payment under this Agreement, all records and accounts pertaining to Services performed by Consultant under this Agreement. TME and/or Client shall have the right to audit, copy and inspect said records and accounts at all reasonable times for the purpose of verifying units furnished and/or costs incurred. 10 PROPRIETARY RIGHTS All materials that Consultant develops rendering Services hereunder, including any inventions or copyright-worthy Services products, shall become the sole and exclusive property of TME without limitation and such materials shall, together with any materials furnished to Consultant by TME hereunder, be delivered to TME at the termination, completion or suspension of the Services. Consultant agrees to execute all documents and to take all steps that TME deems necessary or desirable to protect TME's ownership and proprietary rights of these materials. 11 LAWS AND REGULATIONS Consultant will keep and have available all necessary records and make all payments, reports, collections and deductions and otherwise do any and all things so as to fully comply with all local, municipal and governmental laws, orders, codes, ordinances and regulations as far as they apply to the performance of the Services. Consultant shall not commit TME to any negotiations with any governmental authority or agency in the performance of Services under this Agreement, without TME's prior written approval. 12 OCCUPATIONAL HEALTH, SAFETY AND ENVIRONMENT, (OHSE) Consultant shall take all necessary OHSE and other precautions to protect persons and property from damage, injury or illness arising out of the performance of the Work. Consultant affirms that it has written OHSE policy and manual that has been endorsed by Consultant s management and is actively supported by Consultant s key personnel and supervisors. Consultant warrants that its OHSE manual includes a description of Consultant s OHSE organisation, procedures, and methods of communication to and from Consultant s and subcontractor's personnel. Consultant further warrants that its OHSE policy is widely disseminated and understood amongst subcontractors and their employees, agents and representatives. Consultant shall enhance the Page 3 of 7
OHSE awareness of its personnel and of the personnel of subcontractors in any possible manner, including by way of safety meetings at the Worksites. Where TME has notified Consultant of any health, safety, security or environmental regulations that are applicable to any part of the Work, Consultant shall be responsible for ensuring that the regulations of Consultant are compatible with those issued by TME. Consultant shall compile a Project dedicated OHSE Plan and will submit this to TME within four (4) weeks after award of this Agreement, but not later than two (2) weeks prior to mobilisation on the Worksite and prior to payment of Consultant s first invoice Consultant shall comply strictly with the Law pertaining to Occupational Health, Safety and Environment that are applicable to Consultant or to the Work as well as with TME s instructions regarding Occupational Health, Safety and Environment. Consultant warrants the materials, equipment and facilities, whether temporary or permanent, furnished by Consultant in connection with the performance of the Work shall comply herewith. Consultant further warrants that its policies, manuals, plans, procedures and programmes will be aimed specifically at maintaining the highest levels of OHSE awareness on the Project and Consultant will apply these policies, manuals, plans, procedures and programmes to the Work for the duration of the Agreement. Consultant warrants that its policies, manuals, plans, procedures and programmes will be sufficient to satisfy the minimum requirements for OHSE on the Project and to meet the targets set for the Project. If, at any time during the performance of the Agreement, Consultant s performance of its safety obligations under this Agreement falls short of the minimum requirements of this Agreement, Consultant shall, at no extra cost to TME, take such measures as TME deems necessary to improve the level of its OHSE performance. Such measures shall include, but not necessarily be limited to, the provision of extra staff, replacement of staff, and provision of extra supervision, training and/or retraining of personnel and the supply and installation of additional or task-specific safety equipment Incidents, injuries and illnesses requiring medical attention, damage to property of TME, Client and Consultant shall be verbally reported to TME immediately at the time of incident. Written reports, in accordance with the requirements of this Agreement and satisfactory in form and content to TME, shall be submitted by Consultant within twenty-four (24) hours after each occurrence. Consultant shall maintain Worksite OHSE statistics in form and content approved by TME, which shall at all times be available for inspection by TME, and shall be submitted to TME upon its written request 13 INDEMNIFICATION Consultant agrees to defend, indemnify and hold harmless TME and Client, the affiliated companies of each, and all of their directors, officers, employees, agents and representatives, from and against: All manner of Claims, demands, actions, suits and proceedings of whatever nature whenever and by whomsoever made or instituted and also against all manner of damages, losses and expense whenever incurred in connection with, incidental to, or arising out of this Agreement or performance of the Services. Any claim, liability, loss or expense arising from actual or asserted infringement or improper appropriation or use of trade secrets, proprietary information, know-how, copyright rights of inventions patented or not, or for alleged imitation of the work of others, arising out of the use of methods, processes, designs, information, or other things furnished or communicated by Consultant in connection with the Services. Consultant s indemnity obligations shall apply regardless of whether the party to be indemnified was concurrently negligent, whether actively or passively, excepting only where the injury, loss or damage was caused solely by the negligence or wilful misconduct of, or by defects in design furnished by, the party to be indemnified. Consultant s defence and indemnity obligations shall include the duty to reimburse any attorneys fees and expenses incurred by TME or Client for legal action required to enforce Consultant s indemnity obligations. Page 4 of 7
14 LIABILITY Consultant is liable for and indemnifies TME against all costs and/or damages arising from its whole or partial non-compliance with the Agreement. Consultant s liability under this clause shall end five (5) years after Acceptance of the SERVICES. This limitation of the duration of the liability does not apply in case of wilful misconduct, gross negligence or in case of damages suffered by TME as a result of Consultant s infringement of intellectual property rights of third parties. TME will give written notice to Consultant of the nature and extent of the damages suffered. Consultant will reimburse the damages within thirty (30) days after receipt of said notice. Wherever TME is unable to comply with the requirements of the Prime Contract, and this is due in whole or in part to the acts or failures to act by Consultant, then Consultant shall be liable to TME to the same extent that TME is liable to its Client. Neither TME nor Consultant shall be liable to the other party in contract, law or otherwise, for loss of anticipated profits, interests or for any other consequential, indirect or special loss or damage arising from any cause or reason whatsoever. 15 INSURANCE Consultant shall maintain the insurance coverage set forth below: Worker's compensation insurance, including occupational illness or disease coverage, or other similar social insurance in accordance with the laws of the country, state, province or government exercising jurisdiction over the employee and Employer's Liability Insurance with a minimum limit of AED 5,000,000.-- per occurrence. Comprehensive general liability coverage, with a minimum limit of liability of AED 10,000,000.-- per occurrence of bodily injury and/or damage. The policy shall be endorsed to name TME and its affiliates as additional insureds. Professional liability with a minimum limit of liability of AED 20,000,000.-- per occurrence Automobile liability insurance covering use of all owned, non-owned and hired automobiles with a minimum combined single limit of AED 5,000,000.-- per occurrence for bodily injury and property damage liability. The policy shall be endorsed to name TME and its affiliates as additional insured. Consultant shall have available at TME s request certificates of insurance satisfactory in form to TME evidencing that all of the insurance required is in force. Consultant shall provide TME with written notice not less than thirty (30) days prior to any cancellation or restrictive modification of any of the policies. Subrogation against TME and TME s Client and their officers, affiliates, employees, directors and agents, under Consultant's insurance coverage shall be, and is hereby, waived. Evidence of such waiver satisfactory in form and substance to TME shall be exhibited in the insurance certificates. Notwithstanding the provisions of this Article 15, Consultant shall be fully responsible and liable for the validity and coverage of all insurances during the performance of Services under this Agreement. 16 SUSPENSION OF SERVICES TME may, by written notice to Consultant, suspend further performance of the Services and may later, by written notice to Consultant, withdraw all or part of the suspension. Any proposed changes to the scheduled time of completion of the Services resulting from said suspension must be submitted by Consultant to TME in accordance with the provision of the Article titled Changes. 17 TERMINATION AT TME S OPTION TME shall have the unrestricted right to terminate for convenience further performance of all or any part of the Services by written notice applying an one month term of notice. In such case, Consultant shall immediately discontinue performance of the Services on the date specified in such notice, shall preserve Services in progress and completed Services, and shall turn over such Services in accordance with TME s instructions. TME will compensate Consultant for actual Services satisfactorily performed up to the date of termination. Consultant waives any and all claims for anticipated profits or lost overhead arising out of termination. Page 5 of 7
18 TERMINATION FOR DEFAULT In the event that Consultant shall default in the performance of any obligation to be performed under this Agreement and shall fail to commence and diligently continue to correct such default within five (5) working days following written notice thereof from TME, TME may, without prejudice to any other rights or remedies TME may have, hold in abeyance further payments to Consultant and/or terminate this Agreement by written notice to Consultant specifying the date of termination. 19 COMPLETION AND ACCEPTANCE When Consultant deems that it has satisfactorily completed all portions of the Work it shall advise TME in writing of completion. If, within thirty calendar days of date of Consultant s submittal of advice of completion, TME has not: Confirmed its acceptance of the Work; or Advised shortcomings and/or defaults in the work, Then the work shall be deemed to have been satisfactorily completed. In the event that TME is unable, for whatever reason, to accept or reject the work within thirty calendar days, it shall so advise Consultant and the period of review by TME shall be extended by a period acceptable to the parties, without acceptance of the work being implied. In the event that such extension impacts Consultant s capability to complete other parts of the work it shall so advise TME and an alternative date for completion of these other parts of the work shall be agreed between the parties. TME shall not be obliged to make final payment to Consultant until Consultant has delivered to TME a certificate of release satisfactory to TME (see Attachment to Section V) stating that Consultant has fully performed the WORK in accordance with this CONTRACT and that all claims of Consultant for the WORK or arising from this CONTRACT are satisfied upon the making of such final payment, that no property of Client or property used in connection with the Services is subject to any unsatisfied lien or claim as a result of the performance of the Services, that all rights of lien against Client s property in connection with the Services are fully released (including without limitation, if TME requests, releases of lien satisfactory in form to TME executed by all persons who by reason of furnishing material, labour or other services to Consultant for the WORK or potential lienors against Client s property), and that Consultant has paid in full all outstanding obligations against the Services. The Final Invoice shall conclude accounts between the Parties, and no further invoice submitted for this Agreement shall be accepted by TME. 20 CONFIDENTIAL INFORMATION Consultant agrees not to divulge to any third party any business or technical information relating to TME that is disclosed or acquired by Consultant during the term of this Agreement, except: Information which is or properly becomes part of the public domain; or Information which is in Consultant's possession at the time of disclosure to or acquisition by Consultant, provided Consultant has the right of free and unlimited disclosure thereof. The above obligations shall remain in effect for a period of five (5) years from the date of disclosure of the information, notwithstanding any prior completion, termination or suspension of the Services. 21 LANGUAGE Consultant hereby represents that it has sufficient knowledge of the English language to fully understand this Agreement, its conditions and attachments, and that all future documents, drawings and correspondence will be written in English. Other languages will be used only where required by authorities or to the extent expressly stated otherwise elsewhere in this Agreement. 22 PUBLICITY Consultant shall not make news releases or issue other advertising pertaining to the Services or this Agreement without the prior, written permission of TME. Page 6 of 7
23 DISPUTES AND LAW This Agreement shall exclusively be governed construed, interpreted and applied in accordance with the laws of Abu Dhabi and the U.A.E.. All disputes arising in connection with the Agreement shall be finally settled by the competent civil court in Abu Dhabi, the United Arab Emirates in accordance with the rules of the Abu Dhabi Commercial Conciliation and Arbitration Center at the Abu Dhabi Chamber of Commerce and Industry. The arbitration proceedings shall be conducted in the English language. Unless expressly permitted in writing by TME, Consultant shall not for reason of disputes and/or proceedings delay or suspend the execution of the CONTRACT. 24 VENDOR DECLARATION Consultant confirms, by signature to this Agreement, that it has endorsed the Vendor Declaration required by Bilfinger SE and all its group companies and will abide by the Declaration 25 SURVIVAL The provisions of this Agreement which by their nature are intended to survive the termination, cancellation, completion or expiration of this Agreement shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate, intending each duplicate to serve as an original, on the day and year below written, but effective as of the day and year first set forth above. Page 7 of 7