Terms & Conditions
Ref No. GTC/GMES/01
01 October 2016
Gray Mackenzie Engineering Services LLC (GMES)
General Terms and Conditions of Services
These terms and conditions (T&C), together with any proposal, estimate or fee quote, form the agreement between you (the Client) and the Company (GMES) providing the goods & services contemplated therein.
1.1 In these T&C the following words and phrases shall have the following meanings unless the context otherwise requires:
a) Agreement means each agreement entered into between GMES and the Client;
b) Charges shall have the meaning given in Clause 5.1;
c) Confidential Information means all information in whatever form or manner presented which: (a) is disclosed pursuant to, or in the course of the provision of Services pursuant to, these T&C; and (b) (i) is disclosed in writing, electronically, visually, orally or otherwise howsoever and is marked, stamped or identified by any means as confidential by the disclosing party at the time of such disclosure; and/or (ii) is information, howsoever disclosed, which would reasonably be considered to be confidential by the receiving party.
d) Intellectual Property Right(s) means copyrights, trademarks (registered or unregistered), patents, patent applications (including the right to apply for a patent), service marks, design rights (registered or unregistered), trade secrets and other like rights howsoever existing;
e) Report(s) shall have the meaning as set out in Clause 2.3 below;
f) Services means the services set out in any relevant GMES Proposal, any relevant Client purchase order, or any relevant GMES invoice, as applicable, and may comprise or include the provision of a Report by GMES;
g) Proposal means the proposal, estimate or fee quote, if applicable, provided to the Client by GMES relating to the Services.
2. THE SERVICES
2.1 GMES shall provide the Services to the Client under the Agreement subject to these T&C.
2.2 In the event of any inconsistency between the terms of these T&C, the Agreement/PO and the Proposal, theseT&C shall be superseded.
2.3 The Services provided by GMES under the Agreement/PO and any memoranda, laboratory data, calculations, measurements, estimates, notes, certificates and other material prepared by GMES in the course of providing the Services to the Client, together with status summaries or any other communication in any form describing the results of any work or services performed (Report(s)) shall be only for the Client's use and benefit.
2.4 The Client acknowledges and agrees that if in providing the Services GMES is obliged to deliver a Report to a third party, GMES shall be deemed irrevocably authorized to deliver such Report to the applicable third party. For the purposes of this clause an obligation shall arise on the instructions of the Client, or where, in the reasonable opinion of GMES, it is implicit from the circumstances, trade, custom, usage or practice.
2.5 The Client acknowledges and agrees that any Services provided and/or Reports produced by GMES are done so within the limits of the scope of work agreed with the Client in relation to the Proposal and pursuant to the Client's specific instructions or, in the absence of such instructions, in accordance with any relevant trade custom, usage or practice. The Client further agrees and acknowledges that the Services are not necessarily designed or intended to address all matters of quality, safety, performance or condition of any product, material, services, systems or processes tested, inspected or certified and the scope of work does not necessarily reflect all standards which may apply to product, material, services, systems or process tested, inspected or certified. The Client understands that reliance on any Reports issued by GMES is limited to the facts and representations set out in the Reports which represent GMES’s review and/or analysis of facts, information, documents, samples and/or other materials in existence at the time of the performance of the Services only.
2.6 Client is responsible for acting as it sees fit on the basis of such Report. Neither GMES nor any of its officers, employees, agents or subcontractors shall be liable to Client nor any third party for any actions taken or not taken on the basis of such Report.
2.7 In agreeing to provide the Services pursuant to these T&C, GMES does not abridge, abrogate or undertake to discharge any duty or obligation of the Client to any other person or any duty or obligation of any person to the Client.
3. GMES'S WARRANTIES
3.1 GMES warrants exclusively to the Client:
a) that it has the power and authority to enter into the Agreement/PO and that it will comply with relevant legislations and regulations in force as at the date of the Agreement/PO in relation to the provision of the Services;
b) that the Services will be performed in a manner consistent with that level of care and skill ordinarily exercised by other companies providing like services under similar circumstances;
c) that it will take reasonable steps to ensure that whilst on the Client’s premises its personnel comply with any health and safety rules and regulations and other reasonable security requirements made known to GMES by the Client in accordance with Clause 4.3(f);
d) that the Reports produced in relation to the Services will not infringe any legal rights (including Intellectual Property Rights) of any third party. This warranty shall not apply where the infringement is directly or indirectly caused by GMES’s reliance on any information, samples or other related documents provided to GMES by the Client (or any of its agents or representatives).
4. CLIENT WARRANTIES AND OBLIGATIONS
4.1 The Client represents and warrants:
(a) that it has the power and authority to enter into the Agreement/PO and procure the provision of the Services for itself;
(b) that it is securing the provision of the Services hereunder for its own account and not as an agent or broker, or in any other representative capacity, for any other person or entity;
(c) that any information, samples and related documents it (or any of its agents or representatives) supplies to GMES (including its agents, sub-contractors and employees) is, true, accurate representative, complete and is not misleading in any respect. The Client further acknowledges that GMES will rely on such information, samples or other related documents and materials provided by the Client (without any duty to confirm or verify the accuracy or completeness thereof) in order to provide the Services;
(d) that any information, samples or other related documents (including without limitation certificates and reports) provided by the Client to GMES will not, in any circumstances, infringe any legal rights (including Intellectual Property Rights) of any third party.
4.2 In the event that the Services provided relate to any third party, the Client shall cause any such third party to acknowledge and agree to the provisions in the Agreement/PO and the Proposal prior to and as a condition precedent to such third party receiving any Reports or the benefit of any Services.
4.3 The Client shall:
(a) to co-operate with GMES in all matters relating to the Services and appoint authorized representative in relation to the Services who shall be duly authorized to provide instructions to GMES on behalf of the Client and to bind the Client contractually as required;
(b) to provide GMES (including its agents, sub-contractors and employees), at its own expense, any and all samples, information, material or other documentation necessary for the execution of the Services in a timely manner sufficient to enable GMES to provide the Services in accordance with the Agreement/PO and these T&C. The Client acknowledges that any samples provided may become damaged or be destroyed in the course of testing as part of the necessary testing process and undertakes to hold GMES harmless from any and all responsibility for such alteration, damage or destruction;
(c) that it is responsible for providing the samples/equipment to be tested together, where appropriate, with any specified additional items, including but not limited to connecting pieces, fuse-links, etc.;
(d) to provide GMES (including its agents, sub-contractors and employees) with access to its premises as may be reasonably required for the provision of the Services and to any other relevant premises at which the Services are to be provided;
(e) to notify GMES promptly of any risk, safety issues or incidents in respect of any item delivered by the Client, or any process or systems used at its premises or otherwise necessary for the provision of the Services;
(f) to inform GMES in advance of any applicable import/ export restrictions that may apply to the Services to be provided, including any instances where any products, information or technology may be exported/ imported to or from a country that is restricted or banned from such transaction;
(g) in the event of the issuance of a certificate, to inform and advise GMES immediately of any changes during the term of the certificate which may have a material impact on the accuracy of the certification;
(h) to obtain and maintain all necessary licenses and consents in order to comply with relevant legislation and regulation in relation to the Services;
(i) that it will not use any Reports issued by GMES pursuant to the Agreement/PO in a misleading manner and that it will only distribute such Reports in their entirety;
(j) in no event will the contents of any Reports or any extracts, excerpts or parts of any Reports be distributed or published without the prior written consent of GMES (such consent not to be unreasonably withheld) in each instance; and
(k) that any and all advertising and promotional materials or any statements made by the Client will not give a false or misleading impression to any third party concerning the services provided by GMES.
4.4 GMES shall be neither in breach of the Agreement/PO nor liable to the Client for any breach of the Agreement/PO if and to the extent that its breach is a direct result of a failure by the Client to comply with its obligations as set out in this Clause 4. The Client also acknowledges that the impact of any failure by the Client to perform its obligations set out herein on the provision of the Services by GMESwill not affect the Client’s obligations under the Agreement/PO for payment of the Charges pursuant to Clause 5 below.
5. CHARGES, INVOICING AND PAYMENT
5.1 The Client shall pay GMES the charges set out in the Agreement/PO/Proposal, if applicable, or as otherwise contemplated for provision of the Services (the Charges).
5.2 The Charges are expressed exclusive of any applicable taxes. The Client shall pay any applicable taxes on the Charges at the rate and in the manner prescribed by law, on the issue by GMES of a valid invoice.
5.3 The Client agrees that it will reimburse GMES for any expenses incurred by GMES relating to the provision of the Goods and/or Services and is wholly responsible for any freight or customs clearance fees relating to these Goods and/or Services unless agreed otherwise in writing.
5.4 The Charges represent the total fees to be paid by the Client for the Services pursuant to the Agreement/PO. In case GMES performs additional work, client will be charged GMES’s standard rates.
Charges/Fees not established between GMES and the Client at the time the order is placed or a contract is negotiated shall be at GMES’s standard rates (which are subject to change) and all applicable taxes shall be payable by Client.
5.5 In the event any unforeseen problems or expenses arise in the course of carrying out the Services GMES shall endeavor to inform Client and, GMES shall be paid the additional fees to cover extra day/time and cost necessarily incurred to complete the Services.
5.6 If GMES is unable to perform all or part of the Services for any cause whatsoever outside GMES’s control including failure by Client to comply with any of its obligations provided for in clause 3 above, GMES shall nevertheless be entitled to payment of:
(1) the amount of all nonrefundable expenses incurred by GMES; and
(2) a proportion of the agreed fee equal to the proportion of the Services actually carried out (partial invoicing).
(3) Execution of any deferred/remaining work is at the discretion of GMES, and primarily subject to relevant resource availability
5.7 GMES shall invoice the Client for the Charges and expenses, if any. The Client shall pay each invoice within thirty (30) days of invoice date, or within such other period as maybe established by GMES in the invoice (the “Due Date”).
5.8 If any invoice is not paid on the due date for payment, GMES shall have the right to charge, and the Client shall pay, interest on the unpaid amount, calculated from the due date of the invoice to the date of receipt of the amount in full at a rate equivalent to 15% per annum.
5.9 Client shall not be entitled to retain or defer payment of any sums due to GMES on account of any dispute, counter claim or set off which it may allege against GMES. GMES may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction. Client shall pay all of GMES’s collection costs, including attorney’s fees and related costs.
6. SUSPENSION OR TERMINATION OF SERVICES
GMES shall be entitled to immediately and without liability either suspend or terminate provision of the services in the event of:
(a) failure by the Client to comply with any of its obligations hereunder and such failure is not remedied within ten (10) days that notice of such failure has been notified to Client; or
(b) non-payment of dues , any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by Client.
7. INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION
7.1 All Intellectual Property Rights belonging to a party prior to entry into the Agreement/PO shall remain vested in that party. Nothing in the Agreement/PO is intended to transfer any Intellectual Property Rights from either party to the other.
7.2 Any use by the Client (or the Client's affiliated companies or subsidiaries) of the name "GMES" or any of GMES's trademarks or brand names for any reason must be prior approved in writing by GMES. Any other use of GMES's trademarks or brand names is strictly prohibited and GMES reserves the right to terminate the Agreement/PO immediately as a result of any such unauthorized use.
7.3 In the event of provision of certification services, Client agrees and acknowledges that the use of certification marks may be subject to national and international laws and regulations.
7.4 All Intellectual Property Rights in any Reports, document, graphs, charts, photographs or any other material (in whatever medium) produced by GMES pursuant to the Agreement/PO shall belong to GMES. The Client shall have the right to use any such Reports, document, graphs, charts, photographs or other material for the purposes of the Agreement/PO.
7.5 The Client agrees and acknowledges that GMES retains any and all proprietary rights in concepts, ideas and inventions that may arise during the preparation or provision of any Report (including any deliverables provided by GMES to the Client) and the provision of the Services to the Client.
7.6 GMES shall observe all statutory provisions with regard to data protection including but not limited to the provisions of the Data Protection laws as applicable in the jurisdiction. To the extent that GMES processes or gets access to personal data in connection with the Services or otherwise in connection with the Agreement/PO, it shall take all necessary technical and organizational measures to ensure the security of such data (and to guard against unauthorized or unlawful processing, accidental loss, destruction or damage to such data).
8.1 Where a party (the Receiving Party) obtains Confidential Information of the other party (the Disclosing Party) in connection with the Agreement/PO (whether before or after the date of the Agreement/PO) it shall, subject to Clauses 7.2 to 7.4:
(a) keep that Confidential Information confidential, by applying the standard of care that it uses for its own Confidential Information;
(b) use that Confidential Information only for the purposes of performing obligations under the Agreement/PO; and
(c) not disclose that Confidential Information to any third party without the prior written consent of the Disclosing Party.
8.2 The Receiving Party may disclose the Disclosing Party's Confidential Information on a "need to know" basis:
(a) to any legal advisers and statutory auditors that it has engaged for itself;
(b) to any regulator having regulatory or supervisory authority over its business;
(c) to any director, officer or employee of the Receiving Party provided that, in each case, the Receiving Party has first advised that person of the obligations under Clause 7.1 and ensured that the person is bound by obligations of confidence in respect of the Confidential Information no less onerous than those set out in this Clause 7; and
(d) where the Receiving Party is GMES, to any of its subsidiaries, affiliates or subcontractors.
8.3 The provisions of Clauses 7.1 and 7.2 shall not apply to any Confidential Information which:
(a) was already in the possession of the Receiving Party prior to its receipt from the Disclosing Party without restriction on its use or disclosure;
(b) is or becomes public knowledge other than by breach of this Clause 7;
(c) is received by the Receiving Party from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(d) is independently developed by the Receiving Party without access to the relevant Confidential Information.
8.4 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, any regulatory authority or the rules of any stock exchange on which the Receiving Party is listed, provided that the Receiving Party has given the Disclosing Party prompt written notice of the requirement to disclose and where possible given the Disclosing Party a reasonable opportunity to prevent the disclosure through appropriate legal means.
8.5 Each party shall ensure the compliance by its employees, agents and representatives (which, in the case of GMES, includes procuring the same from any sub-contractors) with its obligations under this Clause.
8.6 With respect to archival storage, the Client acknowledges that GMES may retain in its archive for the period required by its quality and assurance processes, or by the testing and certification rules of the relevant accreditation body, all materials necessary to document the Services provided.
9.1 No amendment to the Agreement/PO shall be effective unless it is in writing, expressly stated to amend the Agreement/PO and signed by an authorized signatory of each party.
10. FORCE MAJEURE
10.1 GMES shall not be liable to the Client for any delay in performing or failure to perform any obligation under the Agreement/PO to the extent that such delay or failure to perform is a result of:
(a) war (whether declared or not), civil war, riots, revolution, acts of terrorism, military action, sabotage and/or piracy;
(b) natural disasters such as violent storms, earthquakes, tidal waves, floods and/or lighting; explosions and fires;
(c) strikes and labor disputes, other than by any one or more employees of the affected party or of any supplier or agent of the affected party; or
(d) failures of utilities companies such as providers of telecommunication, internet, gas or electricity services.
10.2 For the avoidance of doubt, where the affected party is GMES any failure or delay caused by failure or delay on the part of a subcontractor shall only be a Force Majeure Event (as defined below) where the subcontractor is affected by one of the events described above.
10.3 If GMES’s performance is affected by an event described in Clause 10.1 (a Force Majeure Event), GMES shall:
(a) promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration of any consequential delay or non-performance of its obligations;
(b) use all reasonable endeavors to avoid or mitigate the effect of the Force Majeure Event and continue to perform or resume performance of its affected obligations as soon as reasonably possible; and
(c) continue to provide Services that remain unaffected by the Force Majeure Event.
10.4 If the Force Majeure Event continues for more than sixty (60) days after the day on which it started, each party may terminate the Agreement/PO by giving at least ten (10) days' written notice to the other party.
11. LIMITATIONS AND EXCLUSIONS OF LIABILITY
11.1 Neither GMES nor the Client excludes or limits liability to the other party:
(a) for death or personal injury resulting from the negligence of that party or its directors, officers, employees, agents or sub-contractors; or
(b) for its own fraud (or that of its directors, officers, employees, agents or sub-contractors).
11.2 Subject to Clause 11.1, the maximum aggregate liability of GMES in contract, tort (including negligence and breach of statutory duty) or otherwise for any breach of the Agreement/PO of these T&C or any matter arising out of or in connection with the Services to be provided shall be the amount of Charges due by the Client to GMES under that particular Agreement/PO only.
11.3 Subject to Clause 11.1, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for any:
a) loss of profits;
b) loss of sales or business;
c) loss of opportunity (including without limitation in relation to third party agreements or contracts);
d) loss of or damage to goodwill or reputation;
e) loss of anticipated savings;
f) cost or expenses incurred in relation to making a product recall;
g) loss of use or corruption of software, data or information;
h) any indirect, consequential loss, punitive or special loss (even when advised of their possibility); and
i) It shall further have no liability for any loss, damage or expenses arising from the claims of any third party (including, without limitation, product liability claims) that may be incurred by the client.
11.4 Any claim by the Client against GMES (always subject to the provisions of this Clause 10) must be made within fifteen (15) days after the Client becomes aware of any circumstances giving rise to any such claim. Failure to give such notice of claim within thirty (30) days shall constitute a bar or irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the provision of Services under the Agreement/PO.
11.5 Reports of Findings are issued on the basis of information, documents and/or samples provided by, or on behalf of, Client and solely for the benefit of Client who is responsible for acting as it sees fit on the basis of such Reports of Findings. Neither GMES nor any of its officers, employees, agents or subcontractors shall be liable to Client nor any third party for any actions taken or not taken on the basis of such Reports of Findings nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to GMES.
12.1 The Client shall indemnify and hold harmless GMES, its officers, employees, agents, representatives, contractors and sub-contractors from and against any and all claims, suits, liabilities (including costs of litigation and attorney's fees) arising, directly or indirectly, out of or in connection with:
(a) any claims or suits by any governmental authority or others for any actual or asserted failure of the Client to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority;
(b) claims or suits for personal injuries, loss of or damage to property, economic loss, and loss of or damage to Intellectual Property Rights incurred by or occurring to any person or entity and arising in connection with or related to the Services provided hereunder by GMES, its officers, employees, agents, representatives, contractors an sub-contractors;
(c) the breach or alleged breach by the Client of any of its obligations set out in Clause 4 above;
(d) any claims made by any third party for loss, damage or expense of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance of any Services to the extent that the aggregate of any such claims relating to any one Service exceeds the limit of liability set out in Clause 10 above;
(e) any claims or suits arising as a result of any misuse or unauthorized use of any Reports issued by GMES or any Intellectual Property Rights belonging to GMES (including trade marks) pursuant to the Agreement/PO; and
(f) any claims arising out of or relating to any third party's use of or reliance on any Reports or any reports, analyses, conclusions of the Client (or any third party to whom the Client has provided the Reports) based in whole or in part on the Reports, if applicable.
12.2 The obligations set out in this Clause 11 shall survive termination of the Agreement/PO.
13.1 The Agreement shall commence upon the day on which the Client confirms/places order and shall continue, unless terminated earlier in accordance with this Clause 13, until the Services have been provided.
13.2 The Agreement/PO may be terminated by:
(a) either party if the other continues in material breach of any obligation imposed upon it hereunder for more than thirty (30) days after written notice has been dispatched by that Party by recorded delivery or courier requesting the other to remedy such breach;
(b) GMES on written notice to the Client in the event that the Client fails to pay any invoice by its due date and/or fails to make payment after a further request for payment; or
(c) GMES in case of bankruptcy or liquidation of the Client.
13.3 In the event of termination of the Agreement/PO for any reason and without prejudice to any other rights or remedies the parties may have, the Client shall pay GMES for all Services performed up to the date of termination. This obligation shall survive termination or expiration of the Agreement/PO.
13.4 Any termination or expiration of the Agreement/PO shall not affect the accrued rights and obligations of the parties nor shall it affect any provision which is expressly or by implication intended to come into force or continue in force on or after such termination or expiration.
14. ASSIGNMENT AND SUB-CONTRACTING
14.1 GMES reserves the right to delegate the performance of its obligations hereunder and the provision of the Services to one or more of its affiliates and/ or sub-contractors when necessary.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 The Agreement/PO and the Proposal shall be governed by the laws of the United Arab Emirates.
16.1 If any provision of the Agreement/PO of these T&C is or becomes invalid, illegal or unenforceable, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if the Agreement/PO had been executed without the invalid illegal or unenforceable provision.
No partnership or agency:
16.2 Nothing in the Agreement/PO and no action taken by the parties under the Agreement/PO shall constitute a partnership, association, joint venture or other co-operative entity between the parties or constitute any party the partner, agent or legal representative of the other.
16.3 Subject to Clause 10.4 above, the failure of any party to insist upon strict performance of any provision of the Agreement/PO, or to exercise any right or remedy to which it is entitled, shall not constitute a waiver and shall not cause a diminution of the obligations established by the Agreement/PO.
16.4 No waiver of any right or remedy under the Agreement/PO shall be effective unless it is expressly agreed upon, mutually by both parties, to be a waiver.
Agreement Order of Precedence:
16.5 In case of inconsistence between the proposal, the Agreement/PO and these terms and conditions, these terms and conditions shall prevail.