MUSTADIM LLCSTANDARD TERMS AND
CONDITIONS
PREAMBLE
THESE STANDARD TERMS AND CONDITIONS entered into by and between the entity identified in
Mustadim LLC proposal ("Buyer" or Customer) and Mustadim LLC a Saudi Arabian Corporation
, are effective as of the Effective Date hereof. These Standard Terms and Conditions incorporate MUSTADIM
LLC proposal (the Proposal).
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms have the meanings set forth below:
Agreement has the meaning set forth in Article 18.1.
Affiliate means, as to a specified Person, any other Person that, directly or indirectly, controls or is
controlled by or is under common control with the Person in question and, with respect to MUSTADIM
LLC or Buyer, is
not
a competitor of, or
in
litigation or
arbitration with, MUSTADIM
LLC or Buyer, as the case may be.
Applicable Laws means all applicable laws, including Environmental Laws, treaties, ordinances, rules,
regulations and interpretations of any Governmental Authority having jurisdiction over the design,
engineering, fabrication, manufacturing, delivery, assembly, erection, installation, and/or the performance of
the Parties obligations under this Agreement.
Applicable Permits means the permits, clearances, licenses, authorizations, consents, filings, exemptions or approvals from or required by any Governmental Authority that are necessary for the performance of the Parties obligations under this Agreement.
Asbestos shall mean
and include
chrysotile, amosite, crocidolite, tremolite
asbestos, anthophyllite
asbestos, actinolite asbestos, and any of these minerals that has been chemically treated and/or altered.
Buyer Caused Delay means any delay in MUSTADIM LLC or its Subcontractors performance of the Work which
is caused by (i) Buyers or
any
Buyer Partys failure to timely perform its obligations under this
Agreement, or (ii) any other event or cause
which is beyond the control or not the responsibility of MUSTADIM LLC or any of its Subcontractors, and is not otherwise a Force Majeure Event.
Buyer Party or Buyer Parties means Buyer, any Affiliate of Buyer, and any of their respective contractors, subcontractors, employees, laborers, materialmen, agents or representatives which is not a competitor of
MUSTADIM LLC.
Contract Price means the cumulative
price payable by Buyer with respect to all Work which MUSTADIM LLC shall perform or provide in connection with this Agreement, as the same is set forth in Section 4.1 of this
Agreement.
Convenience Termination Payment has the meaning set forth in Section 13.2.
Deliverables means collectively, (a) any Equipment and any Software deliverable to Buyer from MUSTADIM LLC in connection with the Work, and (b) any Work Product.
Effective Date means the last date on which this Agreement became fully executed (either electronically
or otherwise).
Environmental Laws means applicable national, state, provincial, municipal, and local laws as well as all rules, regulations, codes, standards, permits, directives, or ordinances that impose
liability or standards of conduct (including disclosure or notification requirements) concerning the protection
of human health or the environment,
including, without limitation, all laws affecting, controlling, limiting, regulating, pertaining, or relating to the manufacture, possession, presence, use, generation, storage, transportation,
detection, monitoring, treatment, Release, disposal, abatement,
cleanup, removal, remediation, or handling of Hazardous Materials.
Equipment means the installed physical equipment to be provided by MUSTADIM LLC as described in greater detail in the Proposal.
Event of Default has the meaning set forth in Section 13.1.
Final Completion Date means that the date on which all the Work has been completed including all punch list items.
Force Majeure Event has the meaning set forth in Section 10.2.
Governmental Authority means any governmental, judicial, public or statutory instrumentality, tribunal, agency, authority, body or entity, or any political subdivision thereof, having legal
jurisdiction over the matter or Person in question.
Hazardous
Materials means any material, substance, or waste, that, by reason of its composition or
characteristics,
is
hazardous to human health and/or the environment, including any solid waste or
hazardous
waste, as those terms are defined by the Resource Conservation and Recovery
Act of 1976,
as amended, any hazardous substance, as that term is defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, and any other hazardous, toxic or radioactive chemical, waste, byproduct, pollutant, contaminant, compound, product, material or substance, including without limitation, Asbestos, Asbestos containing materials (ACM), polychlorinated biphenyls,
petroleum (including crude oil or any fraction or byproduct thereof), hydrocarbons, radon, urea, urea
formaldehyde, and any other material that is prohibited, controlled, limited or regulated in any manner under any Environmental Laws.
Import Duties means any taxes, customs duties, tariffs, fees, imposts and governmental charges of any kind that are payable upon or in relation to the importation
of the components of the Equipment into the
Country where the Work is to occur. Import Duties do not include any property,
license, privilege, sales,
use,
excise, value added, gross receipts (including any business,
occupation or similar taxes) and/or
transactional taxes now or hereafter applicable to, measured by, or imposed upon or with respect to the
transaction, the Equipment, or their sale,
their value or their use, or any services performed in connection
therewith imposed by any Authority in the location where the Work is to be performed.
Indemnitor has the meaning set forth in Section 14.1.
Indemnitee has the meaning set forth in Section 14.1.
Notice to Proceed shall mean the written notice issued by Buyer to MUSTADIM LLC stating that MUSTADIM LLC may begin the Work.
Party or Parties means, respectively, Buyer, MUSTADIM
LLC or both, as the context requires.
Patent Cooperation Treaty means an international patent law treaty, concluded in 1970, that provides a unified procedure for filing patent applications to protect inventions in each of its more than one hundred
and
forty-five (145) contracting states.
Person or Persons means any individual, corporation, partnership, limited liability company, association,
joint stock company, trust, unincorporated organization, joint venture, government
or political subdivision
or agency thereof.
Proposal means the document that is made part of this Agreement that describes the Work and the pricing
applicable to the Project.
Project is as identified in the Proposal.
Project Site means the particular site designated by Buyer on which the Project shall be located.
Release shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of any Hazardous Materials into the environment, including the
abandonment or discard of barrels, containers, and other closed receptacles containing any Hazardous
Materials.
MUSTADIM
LLC Parties means MUSTADIM
LLC, any Affiliate of MUSTADIM
LLC, and any of their respective Subcontractors, employees, laborers, materialmen, agents or representatives, and MUSTADIM LLC Party means any of the foregoing.
Software means any software that is owned or licensed by MUSTADIM LLC or its Affiliates and that is separately
deliverable
for
use in the Equipment or in a computer system owned by Buyer or is delivered as firmware
embedded in the Equipment.
Subcontractor(s)" means any Person of any tier supplying material, equipment,
labor, goods or services to MUSTADIM LLC in connection with the Work and obligations of MUSTADIM LLC under the Agreement.
Substantial Completion or Substantially Complete means that the Work, or any identifiable portion thereof, is sufficiently complete, in accordance with the provisions of this Agreement relating to the scope
of the Work, such that the Buyer will be able to realize from such Work substantially
all of the practical
benefits intended to be gained therefrom, or
otherwise employ the Work for its intended purpose with only
punch list items remaining.
Termination for Cause has the meaning set forth in Section 13.1.
Warranty or Warranties has the meaning set forth in Section 9.1. Warranty Period has the meaning set forth in Section 9.4.
Work means MUSTADIM
LLCs scope of work with respect to the Equipment, major components, spare parts and
associated services and other work supplied by or on account of MUSTADIM
LLC and its Subcontractors pursuant to its obligations specified in this Agreement and as identified as MUSTADIM LLCs responsibility in the Proposal.
Work Product means the
tangible form of a
report or drawing specifically developed for, commissioned by
and deliverable to Buyer in connection with the Work to be performed by MUSTADIM
LLC under this Agreement
Work Schedule means that certain schedule governing MUSTADIM LLC provision of the Work as set forth in the
Proposal.
ARTICLE 2
PERFORMANCE OF THE WORK AND OBLIGATIONS OF MUSTADIM LLC
2.1 Work to be Performed by MUSTADIM
LLC.
2.1.1 General.
Buyer hereby retains MUSTADIM LLC as an independent contractor, not an agent or employee of Buyer, to perform and provide, or cause to be performed and provided, and MUSTADIM
LLChereby agrees to perform and provide, or cause to be performed or provided, all of the Work specified as being within
MUSTADIM LLC scope of Work, all in accordance with the terms and conditions of this Agreement.
2.1.2
Standard of Care,
The Work shall be conducted
in
a manner consistent with the degree of care and skill ordinarily
exercised by reputable firms performing the same or similar work in the same locale acting under similar circumstances or conditions.
2.2 Scheduling and Monitoring of Milestones.
Except to the extent that MUSTADIM
LLC is entitled to a Scope Change Order or other relief provided
for in this Agreement, MUSTADIM
LLC shall perform its Work in accordance with the Work Schedule. Further, MUSTADIM
LLCshall provide periodic reports to Buyer concerning the status of MUSTADIM LLC activities, including information
pertaining to the progress of the Work and any circumstances known at the time of reporting which could be anticipated to cause a material deviation from the Work Schedule.
2.3 MUSTADIM LLC Documents.
Except as otherwise provided in this Agreement, within fifteen (15) days of receipt of any MUSTADIM LLC document required to be submitted to Buyer for review under this Agreement, Buyer shall notify MUSTADIM LLC of any resulting comments or questions. If Buyer fails to respond within such period, then such drawing or
document shall be deemed to have been reviewed and approved by Buyer as submitted.
MUSTADIM LLC shall, within fifteen (15) days of Buyers notification of any comments or questions on any MUSTADIM
LLC document
respond to Buyers comments or questions, provided that MUSTADIM
LLC shall not be required to change the
design of
the Equipment pursuant to such Buyer comments or questions.
2.4 Permits.
Buyer
shall obtain and maintain the Applicable Permits required to perform the Work under Applicable Laws. If any Permit (or application
therefor)
requires
further action by Buyer, Buyer shall, upon the request of MUSTADIM LLC, take such action
as is
reasonably appropriate.
2.5 MUSTADIM LLC Labor.
MUSTADIM LLC shall be responsible for the conduct and deeds of its labor and its Subcontractors
labor in the
performance of the Work under this Agreement. However, MUSTADIM LLC shall not interfere with any members
of any government office, including police, military or security force in the execution of their duties.
2.6 Safety
MUSTADIM LLC may suspend its performance
of the Work at the Project Site, if, in the reasonable opinion of
MUSTADIM LLC, based upon industry standards and MUSTADIM LLC applicable safety programs,
conditions at the
Project Site for which MUSTADIM LLC is not responsible become unsafe for the continued performance of the
Work and such conditions are not rectified by Buyer immediately. MUSTADIM
LLC shall resume its performance of the Work promptly after the unsafe conditions are rectified by Buyer.
MUSTADIM LLC shall be entitled to a
Scope Change Order to compensate MUSTADIM
LLC for the increased
cost of its performance and/or schedule delay resulting from such suspension of the Work.
ARTICLE 3
SUBCONTRACTORS
Buyer acknowledges that MUSTADIM LLC intends to have portions of the Work performed by Subcontractors qualified to perform such Work pursuant
to written subcontracts between
MUSTADIM LLC and such
Subcontractors. No contractual relationship shall exist between Buyer and any Subcontractor with respect to the Work. MUSTADIM
LLC shall not have any responsibility, duty or authority to direct, supervise or oversee
any
contractors of Buyer, or their work, or to provide the means, methods or sequence of their work or to stop their work.
ARTICLE 4
CONTRACT PRICE AND PAYMENTS TO
MUSTADIM LLC
4.1 Contract Price and Payment.
The total Contract Price is as set forth and defined more specifically in the Proposal.
Buyer shall pay the total Contract Price to MUSTADIM
LLC in accordance with the Proposal. Each payment, except for the initial payment, shall be made by wire
transfer, pursuant to wire
transfer instructions to be provided by MUSTADIM
LLC to Buyer, within thirty (30) days from the date of the MUSTADIM
LLC invoice therefor or by such other payment method acceptable to MUSTADIM LLC.
The Contract Price is based upon Buyer performing its obligations set forth in this Agreement.
The Contract Price, schedule, warranty and guarantee obligations are based upon unrestricted working
hours at, and free access seven (7) days a week, twenty-four (24) hours a day, to the Project Site, including free access to any components requiring assembly by MUSTADIM LLC as part of MUSTADIM LLC scope of Work.
4.2 Taxes.
The Contract Price does not include but
such taxes may be presented as an estimate in the proposal, and Buyer agrees to reimburse MUSTADIM LLC for, any Import Duties,
Sales Taxes, or Income Taxes levied
upon the Services and/or Equipment,
or any tax, or fee (other than net income taxes imposed on MUSTADIM LLC), property, license, privilege, sales, use, excise, value added, gross receipts (including any business,
occupation or similar taxes) and/or transactional taxes now or hereafter applicable to, measured by, or
imposed upon or with respect to the transaction, the Equipment or their sale, their value or their use, or any
services performed in connection therewith
Should Buyer be exempt from any sales and/or use taxes, it shall provide MUSTADIM LLC with valid exemption documentation upon the Effective Date of the Agreement for the location
in which the delivery of the Equipment shall take place. MUSTADIM
LLC shall not collect sales and/or use taxes from Buyer if MUSTADIM LLC is provided such valid exemption documentation for its files prior to issuing an acknowledgment to a Purchase
Order or signing a Contract based on a valid Proposal.
4.3 Disputed Invoices.
If there is any dispute about any amount invoiced by MUSTADIM LLC, the amount not in dispute shall be promptly paid and any disputed amount that is ultimately determined to have been payable shall be paid with interest calculated at the rate of one and one-half percent (1.5%) per month, limited by the maximum rate permitted by Applicable Law. The date of the original invoice on which there was a disputed amount shall determine the date upon which the disputed amount first became due and payable, irrespective of whether any
subsequent invoice is issued or reissued in connection
with the resolution and payment of the disputed
amount.
ARTICLE 5
BUYERS RESPONSIBILITIES
5.1 Buyer shall, at its own cost, do the following:
(a)
Designate a
contact person with authority to make decisions for the Buyer,
through a Chamber of Commerce attested signature mandate, regarding the Work and provide MUSTADIM
LLC with information sufficient to contact such person in an emergency;
b)
Coordinate the work of
contractors under Buyers sole control so as not to disrupt the Work
proceeding in an efficient manner;
(c)
Provide or
arrange for 24-hour, 7-day per week access and make all reasonable provisions
for
MUSTADIM LLC to enter any Project Site where Work is to be performed so that Work may proceed in an
efficient manner;
(d)
Provide for security for all components of the Work, materials, supplies, other equipment required to assemble, erect, install and commission the Work, and any other property owned or leased by Buyer, MUSTADIM
LLC or any of its Subcontractors located at the Project Site;
(e)
Permit
MUSTADIM LLC to control and/or operate
all building
controls, systems,
apparatus, equipment and machinery necessary to perform the Work;
(f)
Furnish MUSTADIM
LLC with blueprints, surveys, legal descriptions, waste management plans and all other available information pertinent to the Work and any Project Site where the Work is to be
performed as may be reasonably requested by MUSTADIM LLC;
(g)
Furnish MUSTADIM
LLC with all approvals, permits and consents from Governmental Authorities
and
others as may be required for performance of the Work, except for MUSTADIM LLC Permits;
(h) Comply with Applicable
Law
and provide any notices required to be given to any Governmental Authority in connection with the Work, except such notices MUSTADIM
LLC has expressly agreed in writing to give;
(i)
Furnish MUSTADIM
LLC with any contingency plans, safety programs and other policies, plans or programs related to any Project Site where the Work is to be performed; and
(j)
Provide and maintain at the Project Site: (1) suitable electrical service, including clean, stable,
properly conditioned power, to all Equipment; (2) telephone lines, capacity and connectivity as
required by such Equipment; and (3) heat, light, air conditioning or other environmental controls, and
other utilities in accordance with the specifications for the Equipment.
5.2. Export Import Compliance.
Buyer acknowledges that MUSTADIM
LLC is required to comply with
applicable export / import laws and regulations
relating to the sale, export, import, transfer, assignment, disposal and use of the Equipment,
including any
export / import license requirements. Buyer agrees that Equipment
will not at any time directly or indirectly be
used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner
which will result in
non-compliance with any export / import laws and regulations. MUSTADIM
LLC continuing performance hereunder is conditioned on compliance with such export / import laws and regulations at all times.
ARTICLE 6
HAZARDOUS MATERIALS
Prior to any Work being conducted at the Project Site, Buyer shall: (a) identify to MUSTADIM LLCthe presence, location and quantity of ACM at the Project Site; and (b) either certify that the work area associated with MUSTADIM
LLC scope of Work is free of ACM or take such action as may be required under Environmental Laws to abate the ACM and, thereafter, certify that the work area associated with MUSTADIM LLC scope of Work is free
of ACM. MUSTADIM
LLCmakes no representation that it is licensed to abate ACM and shall not be obligated to
install, disturb, handle, or remove any ACM.
Buyer
represents and warrants that, prior to the execution of this Agreement, Buyer has notified MUSTADIM LLCin writing of any and all Hazardous Materials known to be present on the Project Site and has: (a) expressly
identified the nature and location of such Hazardous Materials to MUSTADIM LLC, including the provision of a map identifying the same; and (b) provided a copy of any Project Site policies related to such pre-existing Hazardous Materials, including, without limitation,
material safety data sheets, chemical hygiene plans, laboratory
procedures, or other items covered or required to be disclosed or maintained
pursuant to
applicable Environmental Laws.
The Work does not include, either directly or indirectly, performing or
arranging for the detection, monitoring, handling, storage, removal, transportation, disposal, or treatment of Hazardous Materials. If any Hazardous
Materials, including ACM, are encountered at the Project Site, MUSTADIM LLC shall immediately stop all Work in the affected area and report the condition to Buyer. Buyer shall promptly, in accordance with all applicable Environmental Laws and at its sole cost and expense, remove or render harmless, or take other actions as may be necessary to remediate the hazards associated with any such Hazardous Material, including, without limitation, signing and listing Buyer (or the appropriate
Buyer Party) as the generator of the Hazardous Materials on any waste manifest that may be required by Environmental Laws. MUSTADIM
LLC Work in the affected area shall not be resumed until Buyer has complied with the foregoing obligations.
If the existence and remedying of Hazardous Materials at the Project Site results in an increase in MUSTADIM
LLC costs and/or
impacts MUSTADIM LLC ability to meet its obligations, guarantees, or
the
Work Schedule under the
Agreement, MUSTADIM
LLCshall be entitled to a Scope Change Order in accordance
with
the applicable provisions of Article 8, increasing
the Contract Price and providing an equitable extension of the Work
Schedule and other provisions of the Agreement
affected thereby or otherwise affected by Buyers non- compliance, commensurate
with the time reasonably required to overcome such delay and added cost,
including without limitation, overtime charges for labor and equipment.
Buyer, on behalf of itself, all Buyer Parties, and the predecessors and successors in interest, insurers, and assigns of each of them, shall defend, release, indemnify and hold harmless MUSTADIM
LLC, all MUSTADIM LLCParties
and
the successors
and
assigns of each of them from and against any and all liability arising under
Environmental Laws or as a result of any Hazardous Materials at or any environmental condition of the Project Site, including, without limitation, fines and penalties, reasonable fees for attorneys, consultants or
other professionals, and the costs of reporting, investigation, monitoring, containment, cleanup, storage, disposal, transportation and any other remedial actions arising under applicable
Environmental Laws that
are incurred by any Indemnitee hereunder
for and as a
result of: (i) death or bodily injury to any
person, (ii)
destruction or damage to any
property, (iii) contamination of or adverse effects on the environment, including
a Release of any kind, (iv) any violation by Buyer or any Buyer Party of Environmental Laws, and/or (v) a breach by Buyer or any Buyer Party of any legal duty arising under applicable Environmental Laws or any obligations
under the environmental provisions of this Agreement. This release and indemnity shall survive the termination
or
expiration of this Agreement and shall be construed as broadly as possible under applicable Environmental Laws.
ARTICLE 7
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, MUSTADIM
LLCSHALL NOT BE LIABLE
TO
BUYER OR
ANY THIRD PARTY, WHETHER
BASED
IN
CONTRACT,
WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE
THEORY,
FOR:
LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY,
COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS
OF
INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM THE OTHER PARTYS THIRD PARTY CONTRACTS, OR FOR
ANY
TYPE OF INDIRECT, SPECIAL, LIQUIDATED,
PUNITIVE, EXEMPLARY, COLLATERAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR
TYPE.
MUSTADIM LLC MAXIMUM LIABILITY UNDER THIS AGREEMENT IS THE ACTUAL PURCHASE PRICE
RECEIVED BY MUSTADIM LLCFOR THE EQUIPMENT THAT GAVE RISE TO THE CLAIM.
EACH PARTY AGREES THAT THE EXCLUSIONS
AND
LIMITATIONS IN THIS ARTICLE 7 WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT, WHETHER OR NOT ANY OR ALL SUCH REMEDIES
ARE
DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF
LIABILITY ARE EFFECTIVE EVEN IF EITHER PARTY HAS BEEN ADVISED BY THE OTHER OF THE
POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES
FROM
LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS ARTICLE 7 EXTEND TO
EACH PARTYS AFFILIATES
(AND THEIR EMPLOYEES), PARTNERS, PRINCIPALS,
SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS OF ANY TIER (AND THEIR EMPLOYEES), AGENTS, AND SUCCESSORS AND ASSIGNS.
ARTICLE 8
CHANGES TO THE WORK
MUSTADIM LLCshall deliver and/or perform the Work in accordance with the Applicable Laws in effect on the
Effective Date. No change will be made to the scope of Work unless Buyer and
MUSTADIM LLCagree in
writing to the change and any resulting price,
schedule or other contractual modifications associated therewith. If
any
change to any law, rule, regulation, order, code, standard or requirement impacts MUSTADIM LLC obligations
or performance under this Agreement, MUSTADIM
LLCmay request a change order for an equitable adjustment in the price and time of performance.
ARTICLE 9
WARRANTY
9.1. Warranties.
MUSTADIM LLC warrants that: (i) the Equipment is free from defects in material and workmanship;
(ii) the
Equipment is in compliance with MUSTADIM LLC's Proposal; and (iii) at the time of delivery, MUSTADIM
LLC has title to
the Equipment free and clear of liens and encumbrances (collectively, the Warranties"). The Warranties do not apply to Software furnished by MUSTADIM LLC. The sole and exclusive warranties for any Software are set forth in the applicable Software License Agreement or Terms of Use to be provided with the Software.
9.2. Conditions to the Warranties.
The Warranties are conditioned on: (i) no repairs, modifications or alterations being made to the Equipment
other than by MUSTADIM LLC or its authorized representatives; (ii) Buyer handling, using, storing, installing, operating and maintaining the Equipment in compliance
with any parameters or instructions in any specifications attached to, or
incorporated into this Agreement; (iii) compliance with all generally accepted
industry standards; (iv) Buyer discontinuing
use
of the Equipment after it has, or should have had,
knowledge of any defect; (v) Buyer providing prompt written notice of any warranty claims within the Warranty Period described below; (vi) at MUSTADIM LLC' discretion, Buyer either removing and shipping the Equipment or non-conforming part thereof to MUSTADIM LLC, at Buyer's expense, or granting MUSTADIM LLC reasonable
access to the Equipment to assess the warranty claims; (vii) Equipment not having been subjected to accident (including
Force Majeure), alteration, abuse or misuse; (viii) Buyer not being in default of any payment obligation and (viii) Buyer allowing MUSTADIM
LLCthe opportunity to review the operating and maintenance records relating to the Equipment and the facility it is
incorporated into, if applicable.
9.3.
Exclusions from Warranty Coverage.
The Warranties do not apply to any equipment not provided by MUSTADIM
LLC under this Agreement.
Any Equipment that is described as being experimental, developmental,
prototype, or pilot is specifically
excluded from the Warranties and is provided to Buyer as is with no warranties of any kind. Normal wear and tear are excluded, including any expendable or
consumable items that comprise part of the Equipment (such as
fuses, light bulbs and lamps).
MUSTADIM LLCdoes not warrant or guarantee that any Equipment will be secure from
cyber threats,
hacking or similar malicious activity. Equipment that is networked, connected to the internet,
or otherwise connected to computers or other devices must be appropriately protected by Buyer and/or end
user
against unauthorized access.
9.4. Warranty Period.
Buyer must provide written notice of any claims for breach of Warranties by twelve (12) months
from shipment (Warranty Period). Additionally, absent written notice within the Warranty Period, any use or possession of the Equipment after expiration of the Warranty Period is
conclusive evidence that the Warranties have been satisfied.
9.5 Remedies.
Buyer's sole and exclusive remedies for breach of the Warranties
are limited, at MUSTADIM LLC's discretion, to repair or replacement of the Equipment, or its non-conforming
parts, within a reasonable time period, or refund of all or part of the purchase price applicable to the non-conforming part. The warranty on repaired
or replaced parts is limited to the remainder of the original Warranty Period.
Unless MUSTADIM
LLC agrees otherwise in writing, Buyer will be responsible for any costs associated with:
(i) gaining access to the Equipment; (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit MUSTADIM
LLC to perform its warranty obligations; (iii) transportation to and from the MUSTADIM LLC factory or repair facility; and (iv) damage to Equipment components or parts resulting in whole or in part from non-compliance by the Buyer with Section 9.2 hereof or from their deteriorated condition. All exchanged Equipment replaced under this
Warranty will become the property of MUSTADIM LLC.
9.6 Transferability.
The Warranties are only transferable during the Warranty Period and only to the Equipments
initial end-
user.
9.7 THE
WARRANTIES IN
THIS ARTICLE 9 ARE MUSTADIM LLC'S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITS OF LIABILITY IN ARTICLE 7 ABOVE.
MUSTADIM
LLCMAKES NO
OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.
ARTICLE 10
DELAYS; EXCUSED PERFORMANCE
10.1 Change in Law and Buyer Caused Delay.
As the Work is performed, conditions
may change or circumstances
outside MUSTADIM LLC' reasonable control, including without limitation, changes
of Applicable Law and Buyer Caused Delays, may develop which would require MUSTADIM
LLCto expend additional costs, effort or time to complete
the Work, in which case
MUSTADIM LLCwill
notify Buyer and an equitable adjustment will be made to MUSTADIM LLC's Contract Price and Work Schedule pursuant to Article 8. In the event conditions
or circumstances require the Work to be suspended or terminated, MUSTADIM
LLCshall be compensated for Work performed and for costs reasonably incurred in connection with the suspension or termination.
10.2 Force Majeure.
If MUSTADIM
LLCs performance is
delayed by any cause beyond its reasonable control (regardless of whether the
cause was foreseeable), including without limitation acts of God, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal
sources of supply, or acts or inaction of government (Force Majeure Event), MUSTADIM
LLCs time of performance
will be extended by a period equal to the length of the delay plus any consequences of the delay, and MUSTADIM
LLC will get its reasonable costs for such extension of time pursuant to Article 8. MUSTADIM
LLC will notify Buyer within a reasonable time after becoming aware of any such delay.
If MUSTADIM LLC is entirely prevented from performing the Work for a time period of one hundred eighty (180)
aggregate days as a result of the occurrence of a Force Majeure Event suffered by MUSTADIM
LLC, then either
Party may terminate this Agreement with respect to the Work that has not been performed by the effective
date of such
termination at no cost or penalty, other than Buyers obligation to pay MUSTADIM
LLC either (a) the sum set forth in the termination
payment schedule if applicable, or (b) that
portion of the Contract Price reflecting the amount of Work performed, man hours expended and materials acquired at the date of termination.
These charges will also include the expenses associated with the termination, including, but not limited to, any additional expense incurred by reason of termination or cancellation of agreements between MUSTADIM LLC and its suppliers, and any applicable cost allocated in contemplation of performance.
If
the Agreement is terminated
pursuant to this Section 10.2, then MUSTADIM LLC remaining warranty and performance guarantee obligations shall automatically terminate.
ARTICLE 11
INSURANCE
11.1 Insurance coverage.
(a)
BUYER shall maintain full
liability on direct or consequential damages and shall maintain insurance
coverage in full force
and
effect. The insurance coverage and
limits specified below commencing upon the
Buyers issuance of a Notice to Proceed
and continuing until the Final Completion Date.
Upon
request, Buyer shall provide MUSTADIM LLC applicable insurance certificates of such.
(b)
The Buyer shall instruct the insurance carrier to provide MUSTADIM LLCwith thirty (30)
days prior notice of cancellation,
termination or material alteration of any insurance
coverage set forth in this Article 11.
In addition, insurance
shall be maintained with insurance companies having an A.M.
Best rating of A- or better
and
a financial size category of VII or higher (or a comparable rating by any other rating entity reasonably acceptable to
Buyer and evidenced by Buyers written confirmation, which acceptance shall not be unreasonably withheld).
11.2 Subcontractors Insurance Coverage.
MUSTADIM LLC shall require the
Buyers insurance to cover its Subcontractors
performing Work at the Project Site and maintain the types,
coverage and limits of insurance which are reasonable
in
accordance with prudent industry practice and
commensurate with the Work to be performed by such Subcontractor.
11.3 Full liability towards the Buyer.
In regard
to insurance, if the Buyers insurance does not cover any incident or claim,
the Buyer shall be responsible to cover any and all claims to the full value of
each claim.
ARTICLE 12
INTELLECTUAL PROPERTY RIGHTS
MUSTADIM LLC shall retain all intellectual property rights in the Deliverables.
Upon receipt of all fees, expenses
and
taxes due in respect of the relevant Work, MUSTADIM
LLC grants to the Buyer a non-transferable, non-
exclusive, royalty-free license to copy and use the documents included in or with the Deliverables for their intended purpose only.
If the Deliverables include Software, then Buyer
agrees to take delivery of such
Software subject to any applicable MUSTADIM LLC or third-party end-user license agreement (EULA)
accompanying such Software, or if no EULA or third-party license accompanies such MUSTADIM
LLCs Software, the
standard Mustadim EULA for such MUSTADIM
LLC Software.
ARTICLE 13
DEFAULT, TERMINATION AND SUSPENSION
13.1 Events of Default.
The occurrence of any one or more of the following events shall constitute an Event of Default by a Party hereunder:
(a)
A Party makes a general assignment for the benefit of its creditors, is generally unable to pay its debts as they become due, or becomes the subject of any voluntary or involuntary bankruptcy, insolvency, arrangement,
reorganization or other debtor relief proceeding under any Applicable Laws
and, in the case
of an
involuntary proceeding instituted against a Party by a third
party, the
proceeding is not dismissed or stayed within forty-five (45) days after it is
commenced;
(b)
With regard to Buyer, Buyer fails to pay to MUSTADIM
LLC any required payment, which failure continues
for ten (10) days after receipt of written notice thereof from MUSTADIM LLC;
(c)
The Buyer has made a material misrepresentation under the Agreement that is likely to have a material adverse effect on its ability to perform its obligations hereunder, and such representation
is
not made true within thirty (15) days after receipt of written notice thereof from the other Party; or
(d)
A Party is otherwise in material default of any provision of this Agreement or has materially failed
to perform its obligations under this Agreement, provided that if such material default of this Agreement
or material failure to perform this Agreement can be cured within a commercially reasonable timeframe, the defaulting Party shall be permitted
such period of time within which to accomplish such cure, so long as the Party commences
such cure efforts within thirty (30) days after written notice from the other Party and thereafter diligently proceeds to complete
such cure
within such time period.
Upon the occurrence and during the continuation of any Event of Default hereunder, the non-defaulting
Party, in addition to its right to pursue any other remedy given under the Agreement, shall have the right to
terminate this Agreement upon not less than five (5) days prior written notice to the defaulting Party (a
Termination for Cause). A Termination for Cause shall be effective upon the sixth (6th) day following
delivery of the notice with respect thereto.
13.2 Termination
for Buyers convenience.
In addition to any other termination
rights available to Buyer under this Agreement, Buyer shall have the
right to terminate the delivery of Work due to the economic unfeasibility of the Project for Buyer upon fifteen (15) days prior written notice to MUSTADIM LLC. Buyer shall pay MUSTADIM
LLC either (a) the sum set forth in the
termination payment schedule if applicable, or (b) that portion of the Contract Price reflecting
the amount of Work performed, man hours expended and materials acquired at the date of termination. These charges will also include the expenses associated with the termination, including, but not limited
to, any additional
expense incurred by reason of termination or cancellation of agreements between MUSTADIM
LLC and its suppliers and Subcontractors, and any applicable cost allocated in contemplation of performance (the
Convenience Termination Payment). All payments of the Contract Price made by Buyer and received by MUSTADIM
LLC prior to the date of termination shall be credited toward the Convenience Termination
Payment. MUSTADIM
LLC shall submit an invoice
to Buyer for the Convenience Termination Payment and Buyer shall pay such invoice by wire transfer within thirty (30) days after the date of such invoice.
If the Agreement is
terminated by Buyer pursuant to this Section 13.2, then MUSTADIM LLCs remaining warranty and performance guarantee obligations shall also automatically terminate.
ARTICLE 14
INDEMNITIES
MUSTADIM
LLC and Buyer (each as an Indemnitor) shall indemnify the other (Indemnitee) from and against all third party
claims alleging bodily injury, death or damage to a third partys tangible property, but only to the
extent caused by the Indemnitors
negligent acts or omissions.
If the injury or damage is caused by the
parties joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of fault. No part of the Equipment(s) or Buyers Project Site is considered third party property.
Indemnitee shall provide the Indemnitor with prompt written
notice of and
shall not acknowledge any third party claims covered by this Article 14. Indemnitor has the unrestricted right to select and hire counsel and
the exclusive right to conduct the legal defense and/or settle the claim on the Indemnitees
behalf.
The
Indemnitee shall not make any admission(s) which might be prejudicial to the Indemnitor and shall not enter
into a settlement without the express permission of the Indemnitor.
ARTICLE 15
REPRESENTATIONS
Each Party represents that on the Effective Date:
(a) Organization and Corporate Action.
MUSTADIM LLCis a corporation duly organized, validly existing and in good standing under the
laws of Saudi Arabia and is qualified to do business in the jurisdictions in which the Project is
located.
Buyer is
as identified in the Proposal and is duly organized, validly existing and in good standing under the laws of
Saudi Arabia identified in
the Proposal.
Each Party has all necessary
power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by
the Party of this Agreement have been duly authorized by all necessary action on its part; and this Agreement has been duly and validly executed and delivered by the Party and
constitutes the legal, valid and binding obligation of the Party enforceable in accordance
with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to the enforcement of creditors rights generally and by general equitable principles.
(b) No Violation of Law; Litigation.
It is not in violation of any Applicable
Laws
or judgment entered by any Governmental Authority which violations, individually or in the aggregate, would materially and adversely
affect its performance of any of its obligations under this Agreement. There are no legal or arbitration proceedings or any proceeding by or before any Governmental Authority now
pending or (to the best knowledge of the Party) threatened against the Party which, if
adversely determined, could reasonably be expected to have a
material adverse effect on
the ability of the Party to perform under this Agreement.
(c) No Breach.
None of the execution and delivery of this Agreement, the consummation of the
transactions herein contemplated or compliance with the terms and provisions hereof and
thereof shall conflict with or result in a breach of, or require any consent under, the charter
or by-laws of the Party, or any Applicable Laws or regulation, order,
writ, injunction or
decree of any court, or any agreement or instrument
to which the Party is a party, or by which it is bound, or to which it is subject, or constitute a default under any such agreement
or instrument.
ARTICLE 16
PATENT AND COPYRIGHT INFRINGEMENT
MUSTADIM LLC will, at its option and expense, defend or settle any suit or proceeding brought against Buyer
based on an allegation
that any Equipment
or use thereof for its intended purpose constitutes an
infringement of any Patent Cooperation Treaty country members patent or misappropriation of a third partys trade secret or copyright in the country where the Equipment is delivered by MUSTADIM
LLC. Buyer will promptly give MUSTADIM
LLC written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. Buyer shall not acknowledge any such third-party proceedings defined under
this
Article 16.
MUSTADIM LLC shall have the full and exclusive authority to defend and settle such claim(s) and will pay the damages and costs awarded in any suit or proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to MUSTADIM LLC and shall not enter into
a settlement without MUSTADIM
LLC written consent. MUSTADIM LLC is not responsible for any settlement made without its prior written consent. If the Equipment, or any part thereof, as a result of any suit or proceeding
so defended is held to constitute
infringement, or its use by Buyer is enjoined, MUSTADIM
LLC will, at its option and expense, either: (i) procure for
Buyer
the right to continue using said
Equipment; (ii) replace it with
substantially equivalent non-infringing
Equipment; or (iii) modify the Equipment so it is
non-infringing.
MUSTADIM LLC will have
no duty or obligation under this Article 16 if the Equipment is:
(i) supplied according to
Buyer's design or instructions
and
compliance therewith has caused MUSTADIM
LLC to deviate from its normal course of performance; (ii)
modified by Buyer or
its
contractors after delivery; or (iii) combined by
Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason of
such design, instruction, modification
or combination,
a suit or proceeding is brought against MUSTADIM
LLC, Buyer must protect MUSTADIM LLC in the same manner and to the same extent that MUSTADIM LLC has agreed to
protect Buyer under this Article 16.
THIS ARTICLE 16 IS AN EXCLUSIVE STATEMENT OF MUSTADIM
LLC DUTIES AND BUYERS REMEDIES
RELATING TO PATENTS, TRADE SECRETS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY INFRINGEMENT THEREOF.
ARTICLE 17
CONFIDENTIALITY
Both during and
for
a period of ten (10) years after the term of this Agreement, the parties will: (i) treat as confidential all information obtained from the disclosing party, and (ii) use such confidential information for
its
intended purpose only. Confidential information includes all information
compiled or generated by the disclosing party under this Agreement for the receiving party, including but not limited to business
information, manufacturing
schedule information, technical data, drawings, flow charts, program listings, software,
plans and projections. Neither party may disclose or refer to the work to be performed under this
Agreement in any manner that identifies the other party without advance written permission.
However, MUSTADIM
LLC has the right to share confidential information with its Affiliates and subcontractors, provided those
recipients are subject to the same confidentiality obligations set forth herein.
Nothing in this Agreement requires a party to treat as confidential any information which: (i) is or becomes
generally known to the public, without the fault of the receiving party; (ii) is disclosed to the receiving party,
without obligation of confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to the receiving party, without obligation of confidentiality, which fact can be demonstrated
by means of documents which are in the possession of the receiving party upon the date of this Agreement; (iv) was independently developed by receiving party or its representatives, as evidenced by written records, without the use of disclosers confidential information; or (v) is required to be disclosed by law, except to
the extent eligible for special treatment under an appropriate protective order, provided that the party
required to disclose by law will promptly advise the originating party of any requirement to make such
disclosure to allow the originating party the opportunity to obtain a protective order and assist the originating
party in so doing.
Within thirty (30) days from the effective date of termination of this Agreement pursuant to Section 10,2,
13.1 or 13.2 , Buyer shall either (a) return to MUSTADIM LLC any of MUSTADIM LLCs confidential information which had
been in Buyers possession (excluding this Agreement), or (b) certify to MUSTADIM LLCthat all of MUSTADIM
LLC confidential information which had been in Buyers possession has
been destroyed.
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.1 Entire Agreement.
This agreement, including the Proposal and all Exhibits thereto (the Agreement) contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and/or
contemporaneous agreements and commitments with respect thereto. There are no other understandings, oral or written, nor other terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement. Any modification to the Agreement must be in writing and executed by both Parties.
18.2 Applicable Law and Jurisdiction.
This Agreement is governed by and construed in accordance with the laws of where the Project Site is located, without regard to its conflict of laws principles. The application of the
United Nations Convention on Contracts for the International Sale of Goods is excluded. BOTH MUSTADIM
LLC AND BUYER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL OR ARBITRATION IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT. Each Party agrees that claims and disputes arising out of
this Agreement must be decided exclusively in a
court of competent
jurisdiction located in the
location in which the Project Site is located. Each Party submits
to the personal jurisdiction of such courts for the purpose of litigating any claims or disputes.
18.3 Notice.
All notices, reports, demands, claims, elections, requests and other official communications
required or
permitted by this Agreement or by law to be served upon or
given to a Party by the other Party shall be in writing signed
by the Party giving such notice and shall be deemed duly served, given to and received by
the other Party when delivered by first class registered or certified mail,
return receipt
requested, postage prepaid, or by a nationally recognized courier, in each case addressed to those respective representatives
of each Party as identified in the Proposal.
The Parties, by like notice in writing, may designate, from time to time, another address, addressee or office to which notices shall be delivered pursuant to this Agreement,
which change of address shall become
effective five (5) Business Days after delivery of such Notice.
18.4 No Rights in Third Parties.
Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for
the sole benefit
of the Parties and shall not imply or create
any
rights on the part of, or obligations to, any
other Person, except as specifically provided herein with respect to Subcontractors.
18.5 Compliance with Laws.
The Parties agree to comply with all Applicable
Laws, including but not limited to those relating to the manufacture,
purchase, resale, exportation, transfer, assignment or use of
the Equipment.
18.6 Conflicting Provisions.
In the event of any inconsistencies in this Agreement, the following order of precedence in the interpretation hereof or resolution of such conflict hereunder shall prevail:
(1) Duly authorized and executed
Scope Change Orders and written amendments to the Agreement
executed by both Parties, with the latest ones having precedence over the earlier ones;
(2) This Agreement.
Any differing or additional
terms
and conditions in any purchase order or other document are of no force
and
effect unless specifically accepted in writing by the Parties. MUSTADIM
LLC failure to object to any such additional, different or conflicting terms does not operate as a waiver of the terms of this Agreement.
18.7 No Partnership Created.
Nothing contained in this Agreement shall be construed as constituting a joint venture or partnership
between MUSTADIM LLC and Buyer.
18.8 Captions; Shortened Names for Convenience.
The captions contained in this Agreement are for convenience
of reference only and in no way define, describe, extend or limit the scope of intent of this Agreement or the intent of any provision contained herein. Similarly, the references to Buyer and MUSTADIM LLC in this Agreement are shorthand used
for convenience
only.
18.9 Counterparts and Facsimile Execution.
This Agreement may be signed in any number of counterparts and each counterpart shall represent a fully executed original as if signed by
both
Parties, with all such counterparts together constituting but one and
the same instrument.
Facsimile or electronic pdf signatures of the Parties shall be deemed to constitute
original signatures and executed facsimile copies hereof shall be deemed to constitute duplicate originals.
18.10 Joint Effort.
Preparation of the Agreement has been a joint effort of the Parties and the resulting document shall not
be construed more severely against one of the Parties than against the other. Each Party represents that it has obtained the professional advice (including legal, tax and accounting advice on Applicable Laws and regulations) as
it
has deemed appropriate or convenient.
18.11 Appendixes.
All appendixes, attachments, or exhibits referenced in this Agreement shall be incorporated into this
Agreement by such reference and shall be deemed to be an integral part of
this Agreement.
18.12 Non-Waiver.
Any waiver by a Party of strict compliance with this Agreement must be in writing,
and any failure by the Parties to require strict compliance in one instance will not waive its right to insist on strict compliance thereafter.
18.13 Modification of Terms.
This Agreement may only be modified by a written instrument signed by authorized
representatives of both Parties.
18.14 Assignment.
Neither Party may assign all or part of this Agreement,
or
any rights or obligations under this Agreement, without the prior written consent of the other; but either Party may assign its rights and obligations, without recourse or consent, to any parent, wholly owned subsidiary, or Affiliate or Affiliates
successor organization
(whether as a result of
reorganization,
restructuring or sale of
substantially all of a
partys assets). However,
Buyer shall not assign this Agreement to: a competitor
of MUSTADIM LLC; an entity
in
litigation with MUSTADIM
LLC; or an entity lacking the financial capability
to satisfy Buyers obligations. Any assignee expressly assumes the performance of any obligation assigned. MUSTADIM LLCmay grant a security interest in this Agreement and/or assign
proceeds of this Agreement without
Buyers consent.
18.15 Severability.
If any
provision of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions will not in any
way be affected or impaired. A court may modify
the invalid, illegal
or unenforceable provision to reflect,
as
closely as possible, the Parties original intent.
18.16 Survival.
The articles titled Patent and Copyright
Infringement, Limitation of Liability, Confidentiality, Title and
Risk of Loss, Indemnitees, and Export/Import Compliance,
survive termination, expiration or
cancellation of this Agreement.
End.