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ABB General Terms and Conditions for sale of Products and Services
United Arab Emirates and Oversight Countries (OC)
1.Definitions
“ABB”, means a legal entity belonging to the ABB Group providing Products
and/or Services under the Contract.
“Contract”, means the agreement (including these General Terms and
Conditions) made in writing (e.g. via an offer, purchase order and order
acknowledgement) between the Purchaser and ABB for the provision of
Products and/or Services.
“Contract Price”, means the Price for the Products and/or Services set forth
in the Contract.
“Intellectual Property Rights”, means all patents, copyrights, design rights,
trademarks, trade names, service marks, logos, trade secrets, domain
names, know-how and business processes and methods, confidential
information and any other proprietary rights or form of intellectual property
(whether registered or unregistered) capable of protection under the law,
and including applications for the grant of any such rights.
“Products”, means the products, equipment, parts or other goods (including
software) that ABB has agreed to supply to the Purchaser under the
Contract.
“Purchaser”, means the entity to which ABB is providing Products and/or
Services under the Contract.
“Services” means the services that ABB has agreed to provide to the
Purchaser under the Contract.
“Third Party Products”, means any products that are not produced by ABB,
but have been supplied to the Purchaser pursuant to the Contract.
2.Contract Price and Payment
2.1.Unless otherwise agreed in the Contract, all prices shall be based upon
FCA (ABB factory) Incoterms 2010.
2.2.The Contract Price does not include, and the Purchaser shall be
responsible for all, taxes, duties, fees or other charges of any nature
including import, property, sales, stamp, turnover, use or value added taxes
and duties. If the Purchaser deducts or withholds such taxes or duties, the
Purchaser shall pay additional amounts in order for ABB to receive the full
Contract Price.
2.3.Payment shall be made in full, free and clear of all deductions,
counterclaims, withholdings or offsets, within thirty (30) days from the date
of invoice. The Purchaser shall pay a penalty on overdue payments from the
maturity date until the actual date of payment at the rate of 1.5% per month
or the maximum amount permitted by law, whichever is lower.
2.4.All travel expenses incurred in the provision of the Services shall be for
the account of the Purchaser. Travel expenses include:
(a)fares for journey by rail, sea, air, and road;
(b)carriage, freight and customs duties as well as insurance due in
connection with personal effects, instruments and tools required for the
Services, including necessary cost of overweight on air freight; and
(c)all out of pocket expenses incurred by ABB for the Services ordered by the
Purchaser, such as internet use, facsimile and telephone.
3.Delivery, Risk, Title and Performance of the Services
3.1.Unless otherwise provided in the Contract, the Products shall be
delivered in accordance with FCA (ABB factory) Incoterms 2010. Partial
deliveries are allowed. Any date for delivery stipulated or quoted shall be
deemed to be an estimate only. If any Products cannot be delivered when
ready, ABB may deliver the Products to a storage facility and the risk of loss
to the Products shall immediately pass to the Purchaser. The Purchaser shall
be liable to pay any direct and indirect cost in relation to the storage. The
Products shall be deemed to have been delivered when placed in storage.
3.2.The Purchaser shall be deemed to have accepted the Products and
Services as being in compliance with the Contract, unless the Purchaser has
notified ABB in writing of any shortages or damage within five (5) days from
delivery of the Products or three (3) days from performance of the Services.
3.3.Title to the Products shall transfer at the time of delivery. ABB shall retain
a security interest in and lien on the Products until the Contract Price has
been paid in full. Subject to Clause 4, no return of Products is permitted.
3.4.In respect of the Services to be performed by ABB, the Purchaser shall be
responsible for and shall provide at its own cost and risk the following:
(a)free and safe access to the work site, including all necessary visas,
permits, consents, licences and exemptions necessary for ABB to conduct
the Services at the work site;
(b)safe working conditions at the work site;
(c)all health, safety, security and environmental requirements applicable at
the work site;
(d)access to medical facilities and resources at the work site;
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(e)necessary fuel, lubricants, water, electricity, compressed air and cleaning
facilities; and
(f)air-conditioned facilities with potable water, including canteen facilities.
3.5.If in ABB’s opinion the health, safety or security of its personnel at the
work site is at risk, ABB may suspend the Services and evacuate its personnel
from the work site. Any such event shall be considered an excusable event
without any liability on ABB.
4.Warranty
4.1.ABB warrants that the Products shall be free from defects in title,
material and workmanship and that the Services shall be performed with due
skill and care. A Product comprising software, will substantially conform to
published specifications and the media upon which the software is provided
will be free from defects in materials and workmanship.
4.2.Unless otherwise agreed the following warranty periods shall apply:
(a)Products (that are not software) – 12 months from date of delivery;
(b)Products (that are software) – 90 days from delivery;
(c)Services – 90 days from date of performance of the Services; and
(d)Third Party Products – warranties are transferred from the third parties to
the Purchaser to the extent ABB has the right to transfer them.
4.3.If the Products or Services do not meet the warranties set forth in Clause
4.1, the Purchaser shall without delay inform ABB in writing prior to the
expiration of the warranty period. ABB shall at its option repair or replace
the defective Product and/or re-perform the defective Services. The
Purchaser agrees to bear all the cost of access, including, but not limited to
the removal and replacement of systems, structures, dismantling,
decontamination, reinstallation and transportation of Products to ABB and
back to the Purchaser. All warranties for any Products repaired or replaced or
Services re-performed during the warranty period will expire at the same
time as the original warranty period.
4.4.ABB shall not be liable for any defect attributable to: (a) normal wear and
tear, (b) any storage, use, service or operation of the Products which is not in
conformity with manuals, instructions or specifications provided by ABB, (c)
damage caused by any item or service not provided by ABB, and (d) any
modification or alteration of a Product.
4.5.Insofar as permissible by applicable law, clause 4 sets forth the only
warranties applicable to the Products and Services and is in lieu of all other
warranties, guarantees, obligations and liabilities, expressed or implied. The
remedies in this Clause 4 are the Purchaser’s only remedies for breach of
warranty and no warranty or condition of merchantability or fitness for a
particular purpose applies.
5.Confidentiality
Each Party undertakes that it will keep strictly confidential all the other
Party’s confidential and commercially sensitive information of which it
becomes aware in the course of execution of the Contract. This
confidentiality commitment shall not apply to information which (a) is
already known to the recipient or is publicly available, (b) is legally disclosed
to the recipient by a third party, (c) is required to be disclosed by law or
public order, or (d) is permitted to be used or disclosed by the Contract.
6.Limitation of liability
6.1.In no event, whether as a result of breach of contract, breach of warranty,
tort or otherwise shall ABB be liable for any indirect, contingent, special,
consequential or incidental damages however caused or arising, nor for
losses or damages caused by reason of unavailability of the Products or
Services, shutdowns, loss of use, loss of profit or revenue, loss of reputation,
loss of data, cost of purchased or replacement power, cost of substituted
equipment, pollution remediation cost, claims from the Purchaser’s
customers and stakeholders, damage to any equipment and property other
than the Products and cost for additional tests.
6.2.Notwithstanding any other provision of the Contract, in no event shall
ABB’s aggregate liability to the Purchaser under this Contract, whether in
contract, tort or otherwise exceed fifty per cent (50%) of the Contract Price.
6.3.ABB shall not be liable for any products or service work acquired or
performed by the Purchaser or any third party, even if carried out with the
assistance or supervision of ABB’s personnel.
7.Intellectual Property
7.1.Each party shall retain ownership of all Intellectual Property Rights it had
prior to the Contract (including without limitation all copyright and
proprietary rights in software supplied by ABB in any format, including as
embedded in any other product). Nothing in the Contract shall have the
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effect of transferring any Intellectual Property Rights from ABB to the
Purchaser or any third party. All new Intellectual Property Rights created or
conceived by ABB in the performance of the Contract shall be owned
exclusively by ABB.
7.2.Any Intellectual Property Rights in software that comprise Products or a
part of a Product is licensed and not sold to the Purchaser.
7.3.Subject to the terms of any end user licence agreement entered into with
the Purchaser by ABB in respect of relevant Products, ABB grants to the
Purchaser a non-exclusive, non-transferable licence to use Intellectual
Property Rights in software owned by ABB that comprise Products or a part
of a Product for the Purchaser’s own use.
7.4.For Third Party Products (or any part thereof) that comprise software,
which software is licensed by a third party to ABB, the Purchaser’s rights and
responsibilities in respect of such Third Party Products shall be governed by
the terms of such licence.
8.Variations and Change of Law
8.1.Each party may at any time propose changes in the schedule or the scope
of Products or Services. ABB is not obliged to proceed with any changes until
such changes have been agreed upon in writing, including an adjustment to
the Contract Price. Any changes to the Contract shall be agreed upon in
writing by the authorised representatives of the parties.
8.2.In the event of a change in any applicable laws, rules, codes, regulations,
sanctions, site specific requirements or procedures which comes into effect
after the date of the last submission of ABB’s offer, and such change has an
impact on ABB’s performance under the Contract, ABB shall inform the
Purchaser in writing of such impact and the scope, Contract Price, schedule
or other provisions of the Contract will be adjusted in order to reflect the
additional cost and obligations incurred by ABB.
9.Export Control
9.1.The Purchaser shall comply with all applicable import, export control and
economic sanctions laws and regulations. The Purchaser shall not, directly or
indirectly, sell, provide, export, re-export, transfer, divert, loan, lease,
consign, or otherwise dispose of any Product, Services, material, software
including source code, or technology to or via any person, entity, or
destination, specifically to any denied or restricted party, or for any activity
or end-use restricted by any applicable laws or regulations or to any
activities in relation to nuclear or military. The Purchaser shall undertake
that all third parties receiving such supply from the Purchaser comply with
this requirement.
9.2.If requested, the Purchaser shall provide ABB with a certificate signed by
the Purchaser’s authorised representative confirming that the end-user shall
comply with Clause 9.
9.3.Any breach by the Purchaser or any other party for whom the Purchaser
is liable (which shall, without limitation, include an end-user) of any of the
provisions in Clause 9, shall be deemed a material breach of the Contract by
the Purchaser, and shall entitle ABB to terminate the Contract, without the
need to obtain a court order or arbitration award forthwith by notice to the
Purchaser. In the event of such termination or otherwise, the Purchaser shall
compensate ABB for any damage and loss sustained as a result of such
breach of the Contract and shall keep ABB, and all of its affiliates, and their
respective officers, directors, and employees indemnified against any claims
and liabilities arising out of such breach.
10.Integrity
10.1.The Purchaser hereby warrants that it will comply with all applicable
laws and that it will not make any payment or commitment contrary to any
applicable laws (including the US Foreign Corrupt Practices Act). The
Purchaser further agrees to perform its obligations under the Contract with
substantially similar standards of ethical behaviour as set forth in the ABB
Code of Conduct.
10.2.ABB has established the following reporting channel whereby the
Purchaser and its employees may report suspected violations of the ABB
Code of Conduct www.abb.com/ethics.
11.Force Majeure
11.1.Neither party shall be responsible for any failure to perform its
obligations under the Contract to the extent such failure is caused by or
arising from an event beyond its reasonable control, including but not
limited to acts of God, fires, severe weather conditions, earthquakes, strikes
or labor disturbances, sanctions, terrorism and severe threat of terrorism,
epidemics, floods, war, civil unrest, acts of governmental authorities,
accidents, acts of military authorities, embargoes and public disorder
(“Force Majeure”).
11.2.ABB shall be entitled to be reimbursed by the Purchaser for all costs and
expenses reasonably incurred by ABB as a result of a Force Majeure event.
12.Suspension and Termination
12.1.ABB shall have the right to suspend for such period as it considers
appropriate and/or immediately terminate the Contract, without the need to
obtain a court order or arbitration award, by notice to the Purchaser if, in the
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reasonable opinion of ABB, any of the following events arise:
(a)in the event the Purchaser fails to comply with any material obligation
under the Contract (including failure to pay the Contract Price when due);
(b)if the Purchaser becomes insolvent, commences proceedings for winding
up or bankruptcy, enters into an arrangement with its creditors or files for
the protection of creditors under any bankruptcy or insolvency laws;
(c)if the control or ownership of the Purchaser materially changes (a material
change being a change of at least twenty-five per cent (25%));
(d)if a Force Majeure event is continuing for more than three (3) months; or
(e)if any representation or warranty made by the Purchaser herein or in any
document provided to ABB proves to be incorrect.
12.2.In the event ABB suspends performance under the Contract in
accordance with Clause 12.1, the Purchaser shall be liable to reimburse ABB
for any cost and expense incurred by ABB as a result of the suspension
(including demobilisation and remobilisation cost) and the delivery dates
and contractual milestones shall be equally extended.
12.3.In the event ABB terminates the Contract in accordance with clause 12.1.
the Purchaser shall pay ABB for all Products and Services completed or
partially completed before the date of the termination. The Purchaser shall
further be liable to reimburse ABB for all costs, expenses and losses
reasonably incurred as a result of the termination.
13.Use of data
13.1.The Purchaser hereby grants to ABB the right to use, free of charge, all
information and data generated or gathered by any embedded sensors and
SCADA devices in the Products delivered by ABB. The right to use such data
and information includes, but is not limited to, the right to develop ABB
products (including software) and services.
13.2.ABB shall have the right to transfer such information and data to any
legal entity belonging to the ABB group of companies or to third parties who
act for or on ABB’s behalf.
14.Indemnity
14.1.The Purchaser shall indemnify and hold harmless ABB against any and all
losses, claims, expenses liabilities and damages for:
(a)personal injury or death to any employee of the Purchaser or any third
party; and
(b)loss or damage to any property of the Purchaser or any third party, except
in the event such personal injury, death, loss or damage is a direct result of
ABB’s gross negligence.
15.Governing Law and Dispute Resolution
15.1.The Contract shall be governed by and interpreted in accordance with
the laws in force in the principal place of business of the ABB entity
supplying the Products or providing the Service
15.2.In the event of a dispute arising out of or relating to this Contract,
including any question regarding its existence, validity or termination, the
parties shall first seek settlement of that dispute by mediation in
accordance with the Mediation Rules of the DIFC-LCIA Arbitration Centre,
which Rules are deemed to be incorporated by reference into this clause.
15.3.If the dispute is not settled by mediation within sixty (60) days of the
commencement of the mediation, or such further period as the parties shall
agree in writing, the dispute shall be referred to and finally resolved by
arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre,
which Rules are deemed to be incorporated by reference into this clause.
15.4.The language to be used in the mediation and in the arbitration shall be
English. In any arbitration commenced pursuant to this clause, the number of
arbitrators shall be one and the seat, or legal place, of arbitration shall be
Dubai, United Arab Emirates.
16.Miscellaneous
16.1.All notices under the Contract shall be made in writing in English
language.
16.2.The Purchaser shall immediately notify ABB of any change in the
ownership or control of the Purchaser.
16.3.The Contract constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings between the parties in
relation thereto.
16.4.The Purchaser shall not be entitled to assign or novate its rights and
obligations under the Contract without the prior written consent of ABB.
16.5.ABB is an independent contractor and shall have complete charge of
selection and qualification of subcontractors and its personnel to perform
any obligations under this Contract.
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