1. General. In this General Terms and Conditions, the following definitions shall apply: “the Client” shall mean the entity executing the relevant Order Form and to which CPX will be providing the Services; “CPX” shall mean CPX Holding – L.L.C – O.P.C. Each party shall be known individually as a “Party” and, together, the “Parties”. “Order Form” shall mean any document, instruction or request issued by the Client to CPX defining the goods and/or services to be provided. The Order Form together with these General Terms and Conditions shall constitute the “Order”. The Parties acknowledge and agree that these General Terms and Conditions are incorporated in, and form a part of, the Order. Client acknowledges and agrees that it has read and understands these General Terms and Conditions. If CPX accepts the Order Form or commences any of the work and/or services which are the subject of the Order Form, the Client will be deemed to have accepted the Order (including these General Terms and Conditions).
2. Terms of Interpretation. For the purposes of these General Terms and Conditions, except to the extent that the context otherwise requires:
(a) When a reference is made in these General Terms and Conditions to a clause or schedule, such reference is to a clause or schedule to these General Terms and Conditions, unless otherwise indicated;
(b) The headings contained in these General Terms and Conditions are for reference purposes only and do not affect, in any way, the meaning or interpretation of these General Terms and Conditions;
(c) The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import, when used in these General Terms and Conditions, refer to these General Terms and Conditions as a whole and not to any particular provision of these General Terms and Conditions;
(d) WhenFever the words “include”, “includes” or “including” (or similar terms) are used in these General Terms and Conditions, they are deemed to be followed by the words “without limitation”;
(e) The words and definitions contained in these General Terms and Conditions are applicable to the singular, as well as the plural, forms of such terms;
(f) Words denoting a gender include the other gender;
(g) The use of “or” is not intended to be exclusive, unless expressly indicated otherwise;
(h) Words denoting persons shall include individuals, sole proprietorships, companies, corporations, partnerships, firms, joint ventures, trusts, unincorporated associations, states and governmental entities;
(i) Reference to a person (including to Client and CPX) includes the reference to the person’s successors, permitted transferees and permitted assigns; and
(j) Dates and periods of time referred to in these General Terms and Conditions shall be construed in accordance with the Gregorian calendar.
(k) “Tax” means any tax, duty or other charges of whatever nature (but excluding any tax, duty or other charge levied on income accruing to a Party hereunder) imposed by any taxing or government authority including, but not limited to, a value added, goods and services or withholding taxes.
3. The Services.
3.1 During the Term, CPX shall provide the services specified in an Order Form, including any annexes (the “Services”). All Services performed pursuant thereto shall be subject to these Terms and Conditions.
3.3 CPX shall commit to its obligations, under the relevant Order, the time, attention and skill necessary for the proper performance of those obligations and shall provide the Services in accordance with the terms of such Order. CPX shall perform the Services within the time limits specified in the Order Form.
3.4 Client may from time to time request certain variations to the Services specified in an Order Form. If Client requests a variation which alters the Services already agreed, CPX shall respond in writing as soon as practicable, by submitting:
(a) a description of the new Services to be performed and a timetable for their execution;
(b) CPX’s proposal for modifications to the Services and timetable originally agreed in the Order Form; and
(c) CPX’s pricing proposal for performing the additional Services.
Client shall, as soon as practicable after receiving any such submission, respond with approval, disapproval or comments. Agreement on the terms of any such variation shall be evidenced by the Parties’ execution of a document titled “Order Variation No [x]” (the “Variation”). Unless a Variation is executed by the Parties, the Services shall continue in the ordinary course.
4. Term and Termination.
4.1 The term of the Order shall commence on the date prescribed in the Order Form and shall continue in force from such date, for the period specified in the Order Form (the “Initial Term”), unless terminated earlier in accordance with the terms hereof, provided that unless either Party provides a notice of on-renewal to the other Party at least thirty (30) days prior to the expiry of the Initial Term or the then, current, Renewal Term, as applicable, the Order shall automatically renew for an additional period equivalent to the Initial Term (each a “Renewal Term”). The Initial Term together with each Renewal Term shall constitute the Term of the Order.
4.2 Either Party may terminate an Order with immediate effect by giving written notice to the other if the other Party:
(a) is in material breach of the terms of an Order (including any Variation) and, where such breach is capable of a remedy, fails to remedy such breach within thirty (30) days of receipt of notice of the breach and the steps required to remedy it;
(b) passes a resolution for winding up (other than for the purposes of a solvent amalgamation, reconstruction or restructuring) or a court makes an order to that effect;
(c) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors;
(d) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(e) ceases, or threatens to cease, to carry on business.
4.3 Upon expiration or termination of an Order, no Party shall have any further liability to the other Party, with respect to such Order, unless otherwise specifically stated herein; provided that such expiration or termination shall be without prejudice to the accrued rights of any Party as of the time of expiration or termination.
4.4 The expiration or termination of the Order shall not affect the coming into force or the continuance in force of any provision of the Order which is expressly or by implication intended to come into force or continue in force on or after the expiration or termination, including, for the avoidance of doubt, the clauses relating to intellectual property, indemnification and liability, confidentiality, notices, governing law and dispute resolution.
5. Representations, Warranties and Other Agreements. CPX represents and warrants to Client that:
5.1. CPX represents and warrants to Client that:
(a) it is a corporation, a limited liability company or other entity, duly organized, validly existing and in good standing under the laws of the state, country or jurisdiction of its formation;
(b) it has all requisite corporate or similar power and authority, and has taken all corporate action necessary in order to execute, deliver and perform the Services and its obligations under the relevant Order;
(c) the Order is a legal, valid and binding obligation of CPX enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(d) it shall comply with all applicable laws, rules, regulations, proclamations and orders, both in the United Arab Emirates and in any other relevant jurisdiction, in connection with the provision of Services hereunder;
(e) it shall perform the Services with the care, diligence, skill, judgment (including good, safe and prudent practice) and foresight that would be expected to be observed by a highly skilled and highly experienced expert carrying out activities that are the same or similar to the Services under the same or similar circumstances;
(f) it shall keep Client informed at all times regarding the status of the Services and shall provide such information to Client as Client may request from time to time; and
(g) it shall comply with the reasonable instructions of Client relating to the Services which may be given from time to time.
5.2. Client represents and warrants to CPX that:
(a) it is a corporation, a limited liability company or other entity, duly organized, validly existing and in good standing under the laws of the state, country or jurisdiction of its formation;
(b) the Order is a legal, valid and binding obligation of Client enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(c) it shall comply with all applicable laws, rules, regulations, proclamations and orders, both in the United Arab Emirates and in any other relevant jurisdiction, in connection with the provision of Services hereunder;
(d) it shall perform the Services with the care, diligence, skill, judgment (including good, safe and prudent practice) and foresight that would be expected to be observed by a highly skilled and highly experienced expert carrying out activities that are the same or similar to the Services under the same or similar circumstances;
(e) it shall keep Client informed at all times regarding the status of the Services and shall provide such information to Client as Client may request from time to time; and
6. Personnel. CPX shall ensure that each member of its personnel, employees and staff (“Personnel”): (i) is competent, trained and qualified to perform the Services in accordance with best industry practice; (ii) complies with all applicable laws in the United Arab Emirates and the Emirate of Abu Dhabi; and (iii) complies with the standards for delivery of the Services set forth herein.
7. Client Responsibilities.
7.1 Client shall:
(a) ensure that it has all necessary permits, licenses, consents and approvals which it must hold to receive and make use of the Services and comply with all applicable laws, rules, regulations, proclamations and orders in its use of the Services;
(b) promptly provide CPX with such information as CPX requires to perform its obligations under the relevant Order;
(c) notify CPX in writing of any delays or problems in the provision of the Services as soon as reasonably practicable after becoming aware of such delays or problems;
(d) notify CPX in writing of any failure by CPX to perform any of its other obligations under the relevant Order as soon as reasonably practicable after becoming aware of such failure;
(e) grant the Personnel access to Client’s premises to the extent the Personnel require such access to perform the Services and ensure that the Services can be provided at Client’s premises without risk or damage or injury to persons or property; and
(f) not do or omit to do anything that prevents performance by CPX of its obligations hereunder.
7.2 CPX shall be neither in breach of the relevant Order nor liable to Client if and to the extent that its breach or liability results from Client’s failure to perform its obligations and responsibilities hereunder. Client acknowledges that it shall remain responsible for payment of all agreed fees notwithstanding any delay or failure by CPX in performing the Services which results from Client’s failure to perform its obligations and responsibilities hereunder.
8. Intellectual Property. Client hereby expressly agrees that all of the results, and proceeds of the Services of every kind heretofore (the “IP Materials”) rendered by and hereafter to be rendered by or on behalf of CPX, are the sole and exclusive property of Supplier. Accordingly, Client further agrees that Supplier is and shall be deemed the author and or exclusive owner throughout the universe of all the rights of any kind comprised of the IP materials and all intellectual property right related thereto. Client is hereby granted a limited, non-transferable, royalty-free license to use the IP Materials for its own internal, non-commercial purposes.
9. Fee. In consideration of the due performance of the Services (and any Variation), Client shall pay to Supplier the fees set forth in the relevant Order (and any Variation, if applicable). All payments are subject to Client’s receipt of an invoice which has been correctly rendered in accordance with the Order, as may be modified by a Variation.
10. Payment Terms.
10.1 The price payable for the Services shall be as specified in and payable in accordance with the relevant Order. Where the Services are to be charged on the basis of an hourly rate, CPX warrants that it shall only claim for time properly and necessarily spent providing the Services.
10.2 The Price payable for the Services shall be inclusive of all other charges, and any existing or future Taxes imposed, levied or otherwise charged by any governmental entity with respect to any of the Services, other than those contemplated by an Order, shall be the sole responsibility of the CPX.
10.3 Supplier shall be entitled to render invoices in accordance with an Order and payment of any sums due shall be made within thirty (30) days from the date of the invoice and any other appropriate documentation; provided that the invoice is correctly addressed.
11. Relationship Between the Parties. Nothing in an Order shall be construed to create a joint venture, partnership or employer/employee relationship between the Parties. An Order shall not in and of itself give rise to any authority on the part of CPX to obligate or bind Client in any way whatsoever, and CPX shall not represent or hold itself out to have such authority. CPX shall not assume any of the other duties or obligations of Client or any agent of Client.
12. Indemnification and Liability.
12.1 Client shall defend, protect, release, hold harmless, indemnify and keep indemnified CPX, as well as CPX’s personnel, employees, staff, agents, officers, directors and related parties, from and against any and all costs (including attorneys’ fees and other legal costs and expenses), fees, expenses (including lost profits), liabilities, losses, damages, suits, causes of action, claims or any other proceedings whatsoever (collectively, “Claims”) arising out of, associated with or incidental to the provision of the Services by CPX or performance by CPX of its obligations hereunder, unless such Claims result directly from the gross negligence, willful misconduct or fraud of CPX.
12.2 The aggregate liability of CPX under an Order for any and all losses, expenses, damages, claims or actions (whether based on contract, infringement, negligence, strict liability, tort or otherwise) shall not, under any circumstances, exceed the fees received by CPX under the relevant Order as of the date of the liability assessment. In addition, CPX shall not be liable for any indirect, consequential, special and/or punitive loss arising out of or related to an Order.
12. Confidentiality.
12.1 Confidential Information. It is each Party’s duty not to disclose, without the other Party’s prior written permission, any Confidential Information made available to it or any person working for or on its behalf, or otherwise obtained by such Party. Each Party agrees to use the same means as it uses to protect its own confidential information, and in any event not less than reasonable means, to prevent disclosure and to protect the confidentiality of the other Party’s Confidential Information that it has been given or has otherwise obtained as set out above. “Confidential Information” includes information disclosed by a Party (“Disclosing Party”) to the other (“Receiving Party”) in written or electronic form that is marked as “confidential” or “proprietary” or with another similar legend indicating its confidential nature. Confidential Information does not include information that (a) was already in the Receiving Party’s possession at the time of disclosure to the Receiving party, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by the Receiving Party from an unrelated third party without a duty of confidentiality, or (d) is independently developed by the Receiving Party.
12.2 Restrictions on Use. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of an Order and the activities described therein. The Receiving Party shall not disclose Confidential Information of the Disclosing party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to non-use and non-disclosure) no less restrictive than those required by the Receiving Party for its own Confidential Information. The Receiving Party shall treat the Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. The obligations of an Order with respect to any item of Confidential Information shall survive any termination or expiration of such Order.
12.3 Permitted Disclosures. Notwithstanding the foregoing, an Order shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party) to contest or minimize the scope of the disclosure (including application for a protective order). Further, each Party may disclose the terms and conditions of an Order: (a) as required by the applicable laws, including, without limitation, requirements to file a copy of such Order (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (b) in confidence, to legal counsel; (c) in confidence, to accountants, banks, and financing sources and their advisors; and (d) in connection with the enforcement of an Order or any rights hereunder.
12.4 Equitable Relief. Each Party, as the Receiving Party, acknowledges that the Disclosing Party considers its Confidential Information to contain its secrets and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which remedies at law would be inadequate. Accordingly, each Party, as the Receiving Party, acknowledges and agrees that the Disclosing Party shall be entitled, in addition to any other remedies available to it at law or in equity, to seek injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party’s obligations hereunder with respect to the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem just and proper.
12.5 Return or Destruction of Materials. Upon termination of an Order, or at any time upon request during the Term, each Party, as Receiving Party, shall immediately return to the Disclosing Party or destroy all Confidential Information of the Disclosing party.
13. Non-Solicitation. During the Term and for a period of twenty-four (24) months thereafter, Client shall not, without the prior written consent of CPX, solicit for employment, or offer employment to, or enter into any contract for services with, any individual employed or subcontracted by CPX (or any individual who was employed or subcontracted by CPX in the preceding twenty-four (24) months, as calculated from the date of such solicitation or offer).
14. Assignment. Nothing in an Order shall prevent or restrict either Party from assigning, sub-licensing, transferring, novating, creating a charge over or otherwise disposing of any of its rights or from subcontracting, transferring or otherwise disposing of any of its obligations under an Order to any other party, provided that such Party gives prior written notice regarding the foregoing to the other Party.
15. Amendment. No amendment, modification, supplement, deletion, or waiver of any rights hereunder shall be effective unless it is in writing signed by or on behalf of each Party.
16. Force Majeure. Neither Party shall be liable to the other Party for any delay or non-performance of its obligations under an Order arising from any cause beyond a Party’s reasonable control, including any of the following: act of God, governmental act, war, fire, flood, explosion, publicly declared period of mourning or civil commotion. Subject to the affected Party promptly notifying the other Party in writing of the cause of the delay or non-performance and the likely duration of such delay or non-performance, and provided that the affected Party uses its reasonable endeavors to limit the effect of that delay or non-performance on the other party, the performance of the affected Party’s obligations, to the extent affected by the cause, shall be suspended during the period that the cause persists. If performance is not resumed within thirty (30) days after that notice, the other Party may terminate the Order with immediate effect by written notice to the affected Party.
17. Notices. Any notice which a Party is required to serve on the other Party shall be sufficiently served if sent to the other Party at its specified address in an Order or such other address as is notified to the other Party in writing as follows: (i) by hand; or (ii) by registered courier or recorded delivery. Notices sent by registered courier or recorded delivery shall be deemed to be served three (3) Working Days following the day of being sent. In all other cases, notices are deemed to be served on the day when they are actually received. “Working Days” shall mean business days on which companies and banks are open in the Emirate of Abu Dhabi.
18. Waiver. The rights of each Party hereunder (a) may be exercised as often as necessary; (b) are cumulative and not exclusive of rights or remedies provided by law; and (c) may be waived only in writing and specifically. A Party’s delay in the exercise or non-exercise of any right is not a waiver of such right.
19. Further Assurance. Each Party undertakes to sign all documents, and to do all other acts, which may be necessary to give full effect to an Order.
20. Costs. Each Party shall pay the costs and expenses incurred by it in connection with the entering into of an Order.
21. Third Party Rights. Except as explicitly provided herein, no person may enforce any of the terms, provisions, or rights under an Order or shall have any third party rights of any kind.
22. Entire Understanding. Each Order constitutes the entire Agreement of the Parties in relation to its subject matter, and any and all prior agreements, understandings, and representations are terminated and cancelled and are of no further force and effect.
23. Severance. If, at any time, any part of an Order is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Order, and the validity and/or enforceability of the remaining provisions of the Order shall not, in any way, be affected or impaired as a result of that omission.
24. Due Authority. Each Party represents and warrants to the other Party that each Order is executed, and each Variation shall be executed, on its behalf by its duly authorized representative. Each individual executing an Order on behalf of a Party personally represents and warrants to the other Party that he or she is a duly authorized representative holding such authorities as may be required to bind the Party for which he or she is signing.
25. Governing Law. Each Order shall be governed by and construed, performed, and enforced in all respects in accordance with the laws of the England and Wales, without giving effect to the principles of conflicts of laws or choice of law provisions thereof.
26. Dispute Resolution.
26.1 In the event of any dispute or controversy arising out of or in connection with an Order, the Parties will attempt to settle the dispute by negotiation. For this purpose, a liaison committee comprising one (1) senior executive on behalf of Client and one (1) senior executive on behalf of CPX shall attempt to resolve the dispute within thirty (30) days of a dispute being referred to such committee by written notice from one Party to the other Party (the “Dispute Notice”). In the absence of any liaison committee member for any reason, Client or CPX as appropriate may nominate an alternative person to serve on the liaison committee. Any dispute, controversy or claim arising out of or relating to an Order, or the breach, termination or invalidity thereof, which remains unresolved thirty (30) days (or such longer period as either Party may agree, in its sole discretion) following receipt of a Dispute Notice by either Party shall be conclusively and finally settled in accordance with Clause 26.2.
26.2 All disputes or controversies arising out of or in connection with an Order which are not resolved pursuant to Clause 26.1 shall, upon the application of either Party, be finally and conclusively settled (solely and exclusively) by the courts of the Abu Dhabi Global Market.
26.3 The venue for such dispute to be heard shall be Abu Dhabi, United Arab Emirates, and the Parties hereby irrevocably consent to such forum and waive any claims to alternative venues on the ground of forum non conveniens or otherwise. The language used in the proceedings, the language of the decision and the reasons supporting it shall be in English. An arbitration award rendered hereto binds each Party. Judgment upon an arbitration award rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of the award or an order of enforcement, as the case may be. Without limiting the foregoing, each Party irrevocably agrees to submit to the jurisdiction of the courts of the Emirate of Abu Dhabi with respect to the enforcement of any arbitration award or order.
26.4 Notwithstanding any dispute or controversy arising out of or in connection with or related to an Order, the Parties shall continue to perform their respective obligations under the relevant Order.
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