Terms and Conditions for Purchase of Products and Services
Definitions “FINPOWER AIRCON”, means a legal entity purchasing Products and/or Services under the Contract. “Contract”, means the agreement (including these General Terms and Conditions) made in writing (e.g. via an offer, purchase/sales order and order acknowledgment) between the Seller and FINPOWER AIRCON for the provision of Products and/or Services. “Contract Price”, means the Price for the Products and/or Services set forth in the Contract. “Intellectual Property Rights”, means all patents, copyrights, design rights, trademarks, trade names, service marks, logos, trade secrets, domain names, know-how and business processes and methods, confidential information and any other proprietary rights or form of intellectual property (whether registered or unregistered) capable of protection under the law, and including applications for the grant of any such rights. “Days” means any day other than a Friday, or official public holiday in the United Arab Emirates/Middle East. “Products”, means the products, equipment, parts or other goods (including software) purchased or ordered in terms of the Purchase Order, and includes, where applicable, work to be done or services to be rendered, in terms of the Purchase Order; “Purchaser”, means FINPOWER AIRCON LLC, named in the Purchase Order “Seller” means the party to whom the Purchase Order is addressed.
Offer And Acceptance 1No orders other than a Purchase Order signed by an authorized signatory of the Purchaser shall be valid. 2.2 Unless the Seller, within 14 days of receipt of the Purchase Order advises the Purchaser to the contrary by letter, telefax or e-mail it shall be deemed to have accepted the Purchase Order, including these conditions, without qualification.
Contract Price 3.1 Unless specifically agreed to in writing, it is agreed that the Purchase Order is binding on the Parties on condition that the price of the goods will be that as recorded on the Purchase order by the Purchaser. 3.2 Price Validity - Price fixed / firm till the completion of the supplies for the Project.3.3 Taxes and duties as applicable 3.4 Price basis- FOR Delivery at Site / Purchaser store Unloading and Material Handling shall be in supplier scope. 3.5 Transport insurance as deemed necessary based on the products and service- Supplier to ensure the prelim check with Purchaser for the same to understand the scope and act accordingly.
Rental or Hire Charges 4.1. Unless specifically agreed to in writing, it is agreed that the rental or hire charges as stated within the Purchase Order is binding on the Parties, and are deemed to be fixed and all-inclusive for the duration of the rental / hire period. 4.2 Unless specifically provided for within the Purchase Order the said rental or hire charges shall be inclusive of transportation, delivery and removal, of all costs and expenses associated with the installation and operation of the plant or equipment, insurance costs and fuel charges. 4.3 If specifically required for within the Purchase Order for the Supplier to provide person(s) (hereafter referred to as “operators”) to operate the plant and equipment, the Supplier shall provide operators with the necessary skills, expertise and competencies to operate them during the times as stipulated within the purchase order. The Supplier shall ensure that the operators hold at all times the necessary required licenses, permits and or certificates for the operation of the plant and equipment. Not with standing anything to the contrary, the Purchaser may at any time request the Supplier to remove or replace an operator who it considers, at its sole discretion, not adequately operating the pant and or equipment.
DELIVERY 5.1 The Seller undertakes to deliver the Goods at the place and to the person specified by the Purchaser in the Purchase Order. 5.2 Time shall be of essence in regard to the Delivery if the Goods 5.3 Delivery is to be effected, as far as is reasonably possible, from local stocks with prior acceptance from Purchaser. 5.4 A delivery note, reflecting the correct Purchase Order Number, signed by the Purchaser, its employee, agent or representative shall constitute proof, on its mere production, that the Goods delivered there-under are in accordance with the quantity reflected thereon. Good delivered to constructions sites if any under the instruction of purchaser, Supplier to ensure the acknowledgment is to be taken from the prior approved person ensuring a slip of POD (proof of Delivery) is submitted with no comments to purchaser. 5.5 Should a delivery note not reflect the correct Purchase Order Number, the Purchaser may, at its discretion and reserving all other rights it may have, not take delivery of the Goods. The Seller shall be liable for all costs consequent to such election. 5.6 Unless otherwise stated, the rates in the Purchase Order are inclusive of all charges including, but not limited to, customs duties, clearance of goods from port and delivery of goods to the place specified in the Purchase Order.
Warranty The Seller warrants and represents that all Goods purchased in terms of the Purchase Order shall be free of patent or latent defects, liens, claims or any other encumbrances and that such Goods shall be fit in every respect etc. for the purpose for which they are intended by the Purchaser.
Risk 7.1. In case of below defaults in delivery/repair/replacement, Purchaser reserves the right to purchase/rectify/replace from other source at the cost and consequences to Supplier. (a) Supplier fails to proceed with the Supply of equipment/materials with due diligence as required under this contract even after being required in writing to do so by Purchaser or abandons the contract without any valid reason, or (b) Fails to execute and perform the contract diligently or any of its other obligations under the contract in accordance with the terms & conditions of this Agreement and the Contract despite written notice to this effect by Purchaser, or (c) Incurs prolonged delay in execution and performance of the contract, exhausts the maximum Delay Damages applicable to the contract and fails to make any progress in the performance of the contract which is not due to any force majeure or reasons attributable to Purchaser or the End user, or (d) Refuses or neglects to remove and replace defective materials or make good any defective work after being directed in writing to do so by Purchaser or the End user, or (e) Is in material breach of this Agreement and the Contract. (f) Commits an act of bankruptcy or enters into a deal or arrangement with his creditors or being a company goes into liquidation, (other than a voluntary liquidation for the purposes of reconstruction). 7.2. All risk of any loss or damage to the Goods, whether such a loss or damage be total or partial, from whatsoever cause arising, shall remain with the Seller until delivery of the Goods. 7.3 All risk of any loss or damage to rented or hired vehicle(s), plant and or equipment, whether such a loss or damage be total or partial, from whatsoever cause arising, shall remain with the Seller at all times.
Goods Defective In Workmanship/Specification The Purchaser shall, at its option and at the cost of the Seller either repair, replace or substitute Goods sold or delivered and proven to be defective, the fact and extent of which the Purchaser shall be the sole judge.
Standards & Quality The Goods shall be of the standard, quality and type set out in the Purchase Order. Should no specification, patent, sample or drawings be specified or provided, the Goods shall be of proper and sound quality, fit for the purpose for which they are intended by the Purchaser and shall be further subject to the satisfaction and approval of the Purchaser.
Discrepancies 10.1 Should it appear to the Seller that there are contradictions, discrepancies or conflict in any way relating to or arising out of the Purchase Order, the matter shall be referred by the Seller to the Purchaser for clarification prior to the Seller accepting the Purchase Order. 10.2 The parties shall then endeavor to resolve such contradiction, discrepancy or conflict in a manner acceptable to both parties.
Breach In the event of the Seller on the one hand or the Purchaser on the other hand (“the defaulting Party”) committing a breach of any provisions of this agreement, then save where the payment of money is concerned, and where no notice shall be required to be given by any party to the other, the party which is not so in breach (“the aggrieved Party”) shall be obliged to give the defaulting party written notice to remedy the breach. If the defaulting party fails to comply with that notice within 7 (seven) days of receipt then the aggrieved party shall be entitled to cancel this agreement or claim specific performance, in either event without prejudice to the aggrieved party’s right to claim damages. The foregoing is without prejudice to such other rights as the aggrieved party may have at law or in terms of this agreement.
Assignment The Seller shall not cede or assign a Purchase Order or any part thereof, or any share of interest therein, or entrust the performance of any work related thereto to any person without the prior written consent of the Purchaser.
Seller’s Duties 13.1 The Seller shall furnish the Purchaser with all the necessary and reasonable information and documentation as in law it may be obliged to give in regard to any hazards and risks in the Goods. 13.2 The Seller shall furnish the Purchaser with full details as to the health and safety measures the Purchaser should effect in regard to the handling, storage and disposal of the Goods. 13.3 Commissioning support & adequate training with manuals shall be provided as per Purchaser/ Customer requirement for the good and services sold. Price for the same shall be inclusive.
Packaging In the absence of any special written agreement to the contrary, all packaging shall be deemed to be included in the Purchase Price and shall be the property of the Purchaser. Packing and covering, to ensure the safe transport and delivery of the Goods, shall be proper and effective and the Seller shall be responsible for packing the Goods in such a manner as to ensure protection against loss or damage in transit due to faulty packing. The Purchaser shall be entitled to recover from the Seller any loss or damage which the Purchaser suffered arising from or connected with the failure to comply with this clause.
Force Majeure Should the Seller be delayed in or prevented from making a delivery and/or rendering a service and/or executing any work owing to force majeure, act of God or any cause whatsoever beyond the Seller’s control, the Seller shall not be liable for any loss or damage resulting there from but shall appraise the Purchaser thereof within 7 (seven) days of the occurrence of such an event.
Intellectual Property The Seller indemnifies the Purchaser against any claims which might be made against the Purchaser for the infringement or unauthorized use of patent rights, trademarks, copyrights, design or intellectual property rights shall be payable by the Seller. The Seller hereby agrees that the Purchaser or any person whom the Purchaser appoints, shall have the free and unrestricted right to repair or replace any broken or worn part of any Goods notwithstanding that such Goods are subject to any patent, trade mark, design or copyright. The Seller expressly warrants that it has the authority to grant this unrestricted right to the Purchaser, or any person whom the Purchaser appoints.
Invoices And Payment 17.1 Invoices and statements shall be submitted monthly after delivery of relevant Goods, and be sent by the Seller directly to the Purchaser at the Invoice Address and shall state the Purchase Order Number which appears on the face of the Purchase Order, together with all the original supporting documentation duly signed by the nominated FINPOWER AIRCON representative. 17.2 If the Purchaser orders Goods by reference to part numbers set out in the Purchase Order, the Seller shall specifically refer to such part number in all its invoices for any such Goods sold and delivered to the Purchaser. 17.3 The Seller’s statements shall be made out on delivery but not later than the 25th of the month, and financial invoices shall be forwarded so as to reach the Purchaser by not later than the last day of the month, failing which payments of any invoices received after this date may be deferred without prejudicing the Purchaser’s right to deduct any settlement discount stipulated in the Purchase Order. 17.4 If VAT is payable in relation to a Taxable Supply, the supplier must provide the buyer with a valid tax invoice for the Taxable Supply before the payment is due. The buyer will only be required to pay the supplier for the VAT component if provided with a valid tax invoice.
Charges At Point Of Discharge Unless otherwise provided in the Purchase Order al charges at points of dispatch, such as weighing, loading, sheeting, storage and demurrage, shall be borne by the Seller.
Price Adjustment The Purchase Price and rates stipulated in the Purchase Order will be fixed and not subject to adjustment. Where a price adjustment is considered at the discretion of the Purchaser the following conditions will apply: 19.1.1 Such claims must be submitted by the Seller in writing at least 45 days prior to the proposed date of the adjustment by the Seller; 19.1.2 The Purchaser shall not be liable for any adjustment whatsoever beyond the Delivery Date and/or date of completion stipulated in the Purchase Order; 19.1.3 Notwithstanding anything contained in the Purchase Order, acceptance of any claim for the adjustment of the Purchase Price shall be at the sole discretion of the Purchaser; 19.1.4 No purchase price shall be effective until accepted in writing by the Purchaser and confirmed under an amendment to the Purchase Order.
Insurance 20.1 During the duration of this agreement the Seller shall be insured against the following risks at its own cost. 20.1.1 Any liability for damages payable at law for injury or death to any of its employees. 20.1.2 Against liability in respect of any loss or damage of its assets or vehicles or plant or equipment used by the Seller, or rented or hired by the Purchaser and provided by the Seller, for the purpose of executing the Purchase Order, which without limiting the generality of the foregoing, includes any hired vehicles, plant or equipment and temporary site accommodation and the contents thereof. All the insurances must include a waiver of subrogation against the Buyer, its affiliates, employees, directors, successors and assigns, and other parties employed by the Buyer on the project or premises where the services or goods are provided. 20.2 The Supplier shall indemnify and hold harmless the Purchaser, its affiliates, employees, directors, successors and assigns, from and against any losses and claims in any way related to these insurance obligations, and or the failure on the part of the Supplier to maintain the insurances required under these terms and conditions.
Exports / Imports Payments 21.1 In the case of export/import, the Seller shall do all that is necessary, including obtaining all documentation, permits and pay all duties/taxes; 21.1.1 To enable the Goods to be exported from origin or imported into the country of destination and; 21.1.2 To enable payment to be effected in accordance with the Purchase Order.
Overriding Effect The Purchase Order shall override all terms and conditions stipulated, incorporated or referred to by the Seller in any document or negotiations and shall be the only document recording the Parties respective rights and obligations in terms thereof.
Variation No amendment or variation of these conditions of purchase and sale and the Purchase Order shall be of any force or effect unless recorded in writing and confirmed under a signed amendment of this Purchase Order on behalf of the Purchaser by an authorized signatory.
Relaxation Not Waiver No relaxation or indulgence of these conditions by the Purchaser in favor of the Seller shall be construed as a waiver of the Purchaser’s rights.
Governing Law The rights and obligations of the Parties shall be governed by the law of the United Arab Emirates.
Interpretation 26.1 In this agreement, unless the context required otherwise: 26.1.1 Words importing any one gender shall include the other two genders. 26.1.2 The singular shall include the plural and vice versa. 26.1.3 A reference to natural persons shall include created entities and vice versa. 26.1.4 Any word or expression defined in clause 1 shall, if expressed in the singular, include the plural and vice versa and cognate expression shall have a corresponding meaning. 26.1.5 Clause headings have been inserted for convenience only and shall not be used for or assist or effect the interpretation of this agreement.
Terms and Conditions for Sales of Products and Services
“FINPOWER”, means FINPOWER AIRCON LLC, a legal entity providing Products and/or Services under the Contract.
“Contract”, means the agreement (including these General Terms and Conditions) made in writing (e.g. via an offer, purchase order and order acknowledgment) between the Purchaser and FINPOWER for the provision of Products and/or Services.
“Contract Price”, means the Price for the Products and/or Services set forth in the Contract.
“Intellectual Property Rights”, means all patents, copyrights, design rights, trademarks, trade names, service marks, logos, trade secrets, domain names, know-how and business processes and methods, confidential information and any other proprietary rights or form of intellectual property (whether registered or unregistered) capable of protection under the law, and including applications for the grant of any such rights.
“Products”, means the products, equipment, parts or other goods (including software) that FINPOWER has agreed to supply to the Purchaser under the Contract.
“Purchaser”, means the entity to which FINPOWER is providing Products and/or Services under the Contract.
“Services” means the services that FINPOWER has agreed to provide to the Purchaser under the Contract.
“Third Party Products”, means any products that are not produced by FINPOWER, but have been supplied to the Purchaser pursuant to the Contract.
CONTRACT PRICE AND PAYMENT
2.1. Unless otherwise agreed in the Contract, all prices shall be Ex-works, unless otherwise specified.
2.2. The Contract Price does not include, and the Purchaser shall be responsible for all, taxes, duties, fees or other charges of any nature including import, property, sales, stamp, turnover, use or value-added taxes and duties. If the Purchaser deducts or withholds such taxes or duties, the Purchaser shall pay additional amounts in order for FINPOWER to receive the full Contract Price.
2.3. Payment shall be made in full, free and clear of all deductions, counterclaims, withholdings or offsets, within the time period mentioned in the official approved quote. The Purchaser shall pay a penalty on overdue payments from the maturity date until the actual date of payment at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower.
2.4. All travel expenses incurred in the provision of the Services shall be for the account of the Purchaser. Travel expenses include:
(a) fares for journey by rail, sea, air, and road;
(b) carriage, freight and customs duties as well as insurance due in connection with personal effects, instruments and tools required for the Services, including necessary cost of overweight on air freight; and
(c) all out of pocket expenses incurred by FINPOWER for the Services ordered by the Purchaser, such as internet use, facsimile and telephone, and
(d) Visa expenses, if applicable.
DELIVERY, RISK, TITLE AND PERFORMANCE OF THE SERVICES
3.1. Unless otherwise provided in the Contract, the Products shall be delivered in accordance with the terms specified in the quote. Partial deliveries are allowed. Any date for delivery stipulated or quoted shall be deemed to be an estimate only. The actual delivery period may vary based on the final approval of drawings, technical datasheets and clearing of commercial complications. If any Products cannot be delivered when ready, FINPOWER may deliver the Products to a storage facility, if the payment has been cleared, and the risk of loss to the Products shall immediately pass to the Purchaser. The Purchaser shall be liable to pay any direct and indirect cost in relation to the storage. The Products shall be deemed to have been delivered when placed in storage. If the Purchaser is not taking the products even after readiness, Finpower may deliver the products to the storage facility of the Purchaser and the transportation charges will be invoiced to the Purchaser as well. If the payments are not cleared, Finpower reserves the right to retain the products and store them and invoice the storage charges to the customer at the rate of 1.0% (of the Order value) per week (excl. VAT).
3.2. The Purchaser shall be deemed to have accepted the Products and Services as being in compliance with the Contract, unless the Purchaser has notified FINPOWER in writing of any shortages or damage within one (1) day from delivery of the Products or three (3) days from performance of the Services.
3.3. Title to the Products shall transfer at the time of delivery. FINPOWER shall retain a security interest in and lieu on the Products until the Contract Price has been paid in full.
3.4. In respect of the Services to be performed by FINPOWER, the Purchaser shall be responsible for and shall provide at its own cost and risk the following:
(a) free and safe access to the work site, including all necessary visas, permits, consents, licenses and exemptions necessary for FINPOWER to conduct the Services at the work site;
(b) safe working conditions at the work site;
(c) all health, safety, security and environmental requirements applicable at the work site;
(d) access to medical facilities and resources at the work site;
(e) necessary fuel, lubricants, water, electricity, compressed air and cleaning facilities; and
(f) air-conditioned facilities with potable water, including canteen facilities.
3.5. If in FINPOWER’s opinion the health, safety or security of its personnel at the work site is at risk, FINPOWER may suspend the Services and evacuate its personnel from the work site. Any such event shall be considered an excusable event without any liability on FINPOWER.
4.1. FINPOWER warrants that the Products shall be free from defects in title, material and workmanship and that the Services shall be performed with due skill and care. A Product comprising software, will substantially conform to published specifications and the media upon which the software is provided will be free from defects in materials and workmanship.
4.2. Unless otherwise agreed the following warranty periods shall apply:
(a) Products (that are not software) – 12 months from date of delivery;
(b) Products (that are software) – 90 days from delivery;
(c) Services – 90 days from date of performance of the Services;
(d) Third Party Products – warranties are transferred from the third parties to the Purchaser to the extent FINPOWER has the right to transfer them.
(e) Bought out products back to back warranty as per OEM; and
(f) In case of Outstation products, bench warranty applies (i.e. the Purchaser has to send the material to the factory without any defects to the core products to claim the bench warranty and any direct or indirect expenses incurred by way shall be borne by the Purchaser); and
(g) Extended warranty, if required, can be provided with additional charges, as applicable.
4.3. If the Products or Services do not meet the warranties set forth in Clause 4.1, the Purchaser shall without delay inform FINPOWER in writing prior to the expiration of the warranty period. FINPOWER shall at its option repair or replace the defective Product and/or re-perform the defective Services. The Purchaser agrees to bear all the cost of access, including, but not limited to the removal and replacement of systems, structures, dismantling, decontamination, reinstallation and transportation of Products to FINPOWER and back to the Purchaser. All warranties for any Products repaired or replaced or Services re-performed during the warranty period will expire at the same time as the original warranty period.
4.4. FINPOWER shall not be liable for any defect attributable to:
(a) normal wear and tear,
(b) any storage, use, service or operation of the Products which is not in conformity with manuals, instructions or specifications provided by FINPOWER,
(c) damage caused by any item or service not provided by FINPOWER, and
(d) any modification or alteration of a Product.
4.5. Clause 4 sets forth the only warranties applicable to the Products and Services and is in lieu of all other warranties, guarantees, obligations and liabilities, expressed or implied. The remedies in this Clause 4 are the Purchaser’s only remedies for breach of warranty and no warranty or condition of merchantability or fitness for a particular purpose applies.
Each Party undertakes that it will keep strictly confidential all the other Party’s confidential and commercially sensitive information of which it becomes aware in the course of execution of the Contract. This confidentiality commitment shall not apply to information which (a) is already known to the recipient or is publicly available, (b) is legally disclosed to the recipient by a third party, (c) is required to be disclosed by law or public order, or (d) is permitted to be used or disclosed by the Contract.
LIMITATION OF LIABILITY
6.1. In no event, whether as a result of breach of contract, breach of warranty, tort or otherwise shall FINPOWER be liable for any indirect, contingent, special, consequential or incidental damages however caused or arising, nor for losses or damages caused by reason of unavailability of the Products or Services, shutdowns, loss of use, loss of profit or revenue, loss of reputation, loss of data, cost of purchased or replacement power, cost of substituted equipment, pollution remediation cost, claims from the Purchaser’s customers and stakeholders, damage to any equipment and property other than the Products and cost for additional tests.
6.2. FINPOWER shall not be liable for any products or service work acquired or performed by the Purchaser or any third party, even if carried out with the assistance or supervision of FINPOWER’s personnel.
7.1. Each party shall retain ownership of all Intellectual Property Rights it had prior to the Contract (including without limitation all copyright and proprietary rights in software supplied by FINPOWER in any format, including as embedded in any other product). Nothing in the Contract shall have the effect of transferring any Intellectual Property Rights from FINPOWER to the Purchaser or any third party. All new Intellectual Property Rights created or conceived by FINPOWER in the performance of the Contract shall be owned exclusively by FINPOWER.
7.2. Any Intellectual Property Rights in software that comprise Products or a part of a Product is licensed and not sold to the Purchaser (in case of applicable circumstances)
7.3. Subject to the terms of any end user license agreement entered into with the Purchaser by FINPOWER in respect of relevant Products, FINPOWER grants to the Purchaser a non-exclusive, non-transferable license to use Intellectual Property Rights in software owned by FINPOWER that comprise Products or a part of a Product for the Purchaser’s own use.
7.4. For Third Party Products (or any part thereof) that comprise software, which software is licensed by a third party to FINPOWER, the Purchaser’s rights and responsibilities in respect of such Third Party Products shall be governed by the terms of such license.
VARIATIONS AND CHANGE OF LAW
8.1. Each party may at any time propose changes in the schedule or the scope of Products or Services. FINPOWER is not obliged to proceed with any changes until such changes have been agreed upon in writing, including an adjustment to the Contract Price. Any changes to the Contract shall be agreed upon in writing by the authorized representatives of the parties.
8.2. In the event of a change in any applicable laws, rules, codes, regulations, sanctions, site-specific requirements or procedures which comes into effect after the date of the last submission of FINPOWER’s offer, and such change has an impact on FINPOWER’s performance under the Contract, FINPOWER shall inform the Purchaser in writing of such impact and the scope, Contract Price, schedule or other provisions of the Contract will be adjusted in order to reflect the additional cost and obligations incurred by FINPOWER.
9.1. The Purchaser shall comply with all applicable import, export control and economic sanctions laws and regulations. The Purchaser shall not, directly or indirectly, sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any Product, Services, material, software including source code, or technology to or via any person, entity, or destination, specifically to any denied or restricted party, or for any activity or end-use restricted by any applicable laws or regulations or to any activities in relation to nuclear or military. The Purchaser shall undertake that all third parties receiving such supply from the Purchaser comply with this requirement.
9.2. If requested, the Purchaser shall provide FINPOWER with a certificate signed by the Purchaser’s authorized representative confirming that the end-user shall comply with Clause 9.
9.3. Any breach by the Purchaser or any other party for whom the Purchaser is liable (which shall, without limitation, include an end-user) of any of the provisions in Clause 9, shall be deemed a material breach of the Contract by the Purchaser, and shall entitle FINPOWER to terminate the Contract, without the need to obtain a court order or arbitration award forthwith by notice to the Purchaser. In the event of such termination or otherwise, the Purchaser shall compensate FINPOWER for any damage and loss sustained as a result of such breach of the Contract and shall keep FINPOWER, and all of its affiliates, and their respective officers, directors, and employees indemnified against any claims and liabilities arising out of such breach.
10.1. The Purchaser hereby warrants that it will comply with all applicable laws and that it will not make any payment or commitment contrary to any applicable laws. The Purchaser further agrees to perform its obligations under the Contract with substantially similar standards of ethical behavior as set forth in the FINPOWER Code of Conduct.
11.1. Neither party shall be responsible for any failure to perform its obligations under the Contract to the extent such failure is caused by or arising from an event beyond its reasonable control, including but not limited to acts of God, fires, severe weather conditions, earthquakes, strikes or labor disturbances, sanctions, terrorism and severe threat of terrorism, epidemics, floods, war, civil unrest, acts of governmental authorities, accidents, acts of military authorities, embargoes and public disorder (“Force Majeure”).
11.2. FINPOWER shall be entitled to be reimbursed by the Purchaser for all costs and expenses reasonably incurred by FINPOWER as a result of a Force Majeure event.
SUSPENSION AND TERMINATION
12.1. FINPOWER shall have the right to suspend for such period as it considers appropriate and/or immediately terminate the Contract, without the need to obtain a court order or arbitration award, by notice to the Purchaser if, in the reasonable opinion of FINPOWER, any of the following events arise:
(a) in the event the Purchaser fails to comply with any material obligation under the Contract (including failure to pay the Contract Price when due);
(b) if the Purchaser becomes insolvent, commences proceedings for winding up or bankruptcy, enters into an arrangement with its creditors or files for the protection of creditors under any bankruptcy or insolvency laws;
(c) if the control or ownership of the Purchaser materially changes
(d) if a Force Majeure event is continuing for more than three (3) months; or
(e) if any representation or warranty made by the Purchaser herein or in any document provided to FINPOWER proves to be incorrect.
12.2. In the event FINPOWER suspends performance under the Contract in accordance with Clause 12.1, the Purchaser shall be liable to reimburse FINPOWER for any cost and expense incurred by FINPOWER as a result of the suspension (including demobilization and remobilization cost) and the delivery dates and contractual milestones shall be equally extended.
12.3. In the event FINPOWER terminates the Contract in accordance with clause 12.1. the Purchaser shall pay FINPOWER for all Products and Services completed or partially completed before the date of the termination. The Purchaser shall further be liable to reimburse FINPOWER for all costs, expenses and losses reasonably incurred as a result of the termination including the costs incurred for the allocated raw materials and spare parts for the order processing.
USE OF DATA
13.1. The Purchaser hereby grants to FINPOWER the right to use, free of charge, all information and data generated or gathered by any embedded sensors and SCADA devices in the Products delivered by FINPOWER. The right to use such data and information includes, but is not limited to, the right to develop FINPOWER products (including software) and services.
13.2. FINPOWER shall have the right to transfer such information and data to any legal entity belonging to the FINPOWER group of companies or to third parties who act for or on FINPOWER’s behalf.
14.1. The Purchaser shall indemnify and hold harmless FINPOWER against any and all losses, claims, expenses liabilities and damages for:
(a) personal injury or death to any employee of the Purchaser or any third party; and
(b) loss or damage to any property of the Purchaser or any third party, except in the event such personal injury, death, loss or damage is a direct result of FINPOWER’s gross negligence.
GOVERNING LAW AND DISPUTE RESOLUTION
15.1. The Contract shall be governed by and interpreted in accordance with the laws in force in the principal place of business of the FINPOWER entity supplying the Products or providing the Service
15.2. In the event of a dispute arising out of or relating to this Contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation at our office premises, in accordance with the Mediation Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.
15.3. If the dispute is not settled by mediation within sixty (60) days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.
15.4. The language to be used in the mediation and in the arbitration shall be English. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be one and the seat, or legal place, of arbitration shall be Dubai, United Arab Emirates. The jurisdiction for legal matters shall always remain Dubai, United Arab Emirates.
16.1. All notices under the Contract shall be made in writing in English language.
16.2. The Purchaser shall immediately notify FINPOWER of any change in the ownership or control of the Purchaser.
16.3. The Contract constitutes the entire agreement between the parties and supersedes all prior agreements and understandings between the parties in relation thereto.
16.4. The Purchaser shall not be entitled to assign or novate its rights and obligations under the Contract without the prior written consent of FINPOWER.
16.5. FINPOWER AIRCON LLC is an independent contractor and shall have complete charge of selection and qualification of subcontractors and its personnel to perform any obligations under this Contract.
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