This Subcontract is made on______day of ______2014 and comes into effect on the date of the latest signature to this Subcontract
BETWEEN
TMEMiddle East. Ltd. (TME), (Abu Dhabi Branch) PO Box 2652, Abu Dhabi, UAE hereinafter referred to as
(“TME”)
AND
Name and Trading Address hereinafter referred to as (“Subcontractor”)
RECITALS
(A)Client’s Name (“Client”) has awarded TME a contract to Description/Title of Contract (“the Main Contract”).
(B)The Parties hereby agree that Subcontractor shall perform certain portion or portions of the services required under the Main Contract based on the terms and conditions of this Subcontract.
OPERATIVE PROVISIONS
1.Definitions
In this Subcontract the following terms have the following meanings unless the context requires otherwise:
1.1“Affiliate” of any company means any subsidiary or holding company of that company which directly or indirectly owns or controls fifty per cent (50%) of the registered capital or rights to vote of that company.
1.2“Subcontract” means this Subcontract and the Appendices attached hereto as originally executed or as may from time to time be amended by a specific written instrument executed on behalf of both parties being:
Appendix 1 -Scope of Subcontractor’s Services.
Appendix 2 -Schedule of Prices and Payment.
Appendix 3 -Unpriced Main Contract.
In the event of conflict between the Operative Provisions and the Appendices, the former shall prevail. The Appendices shall be taken as mutually explanatory but if there is any conflict or ambiguity between any of the above Appendices they shall be given precedence in the order listed above.
1.3“Client” means:
(a)Client’s Name and abbreviated form;
(b)the officers, directors, employees and agents of any of the entities mentioned in the definition.
1.4“TME Group” means:
(a)TME and its Affiliates; and
(b)TME’s invitees, contractors (other than Subcontractor) and their subcontractors; and
(c)the officers, directors, employees and agents of any entity mentioned in this definition other than Subcontractor.
1.5“Gross Negligence” means reckless disregard for harmful, avoidable and reasonably foreseeable consequences of an act.
1.6“Main Contract” means the unpriced contract between TME and Client attached as Appendix 3.
1.7“Services” means the Services specified in Appendix 1 and the provision of all personnel, ancillary equipment, support, spare parts, maintenance, mobilisation, demobilisation and all other activities or things necessary to enable rendering of the Services.
1.8“Subcontractor Group” means in addition to the identification given above:
(a)Subcontractor and its Affiliates;
(b)Subcontractor’s invitees, subcontractors and vendors and any subcontractors of any tier thereof; and
(c)the officers, directors employees and agents of any entities mentioned in this definition.
1.9“Site” means the place or places where the Services are performed, as specified in the Main Contract.
1.10“Work” means the work TME is obliged to perform under the Main Contract.
2.Services
2.1Subcontractor must perform all Services in accordance with this Subcontract and to the satisfaction of TME and Client.
2.2Insofar as Subcontractor makes use of TME’s resources, it shall be Subcontractor’s responsibility to satisfy itself as to the fitness, condition and suitability of such resources. TME offers no warranty in respect of same.
3.Personnel
3.1Subcontractor must pay all costs associated with personnel supplied by Subcontractor, including, but not limited to, wages, overtime, food, accommodation and expenses associated with transporting personnel to and from any site.
3.2Prior to any of Subcontractor’s personnel proceeding to any Site, Subcontractor must provide TME with a list of those personnel. The list must show the duties assigned to each person, a brief resume of each person’s experience and qualifications and copies of all tests passed and certifications obtained by each person. TME may require Subcontractor to change any person specified in the list, either before or after that person has proceeded to the Site.
4.Application of the Main Contract
4.1Subcontractor shall be deemed to have full knowledge of the provisions of the Main Contract (other than the details of TME’s prices). Subcontractor is hereby given notice that TME will be relying on the competence of Subcontractor and its employees and on the accuracy and completeness of Subcontractor's Services hereunder in utilising the results of such Services and performing TME’s own obligations under the Main Contract.
4.2Subcontractor must execute, complete and maintain the Services in such a way that no act or omission of Subcontractor constitutes causes or contributes to any breach by TME under the Main Contract and Subcontractor must assume and perform all the duties, responsibilities, obligations and liabilities of TME under the Main Contract in relation to the Services.
4.3Subcontractor must indemnify TME against every liability which TME may incur to Client under the Main Contract and to any other person whatsoever for or in connection with the Services and against any claims, demands, proceedings, damages, costs and expenses made against or incurred by TME by reason of any breach by Subcontractor of this Subcontract.
4.4Wherever TME is unable to comply with the requirements of the Main Contract, and this is due in whole or in part to the acts, or failures to act or failures to act in a timely fashion by Subcontractor, then Subcontractor shall be liable to TME to the same extent that TME is liable to its Client.
Neither TME nor Consultant shall be liable to the other party in contract, law or otherwise, for loss of anticipated profits, interests or for any other consequential, indirect or special loss or damage arising from any cause or reason whatsoever.
4.5Subcontractor shall have, in respect of the Services, the same rights, duties, responsibilities, obligations and liabilities in respect of TME as TME has in respect of Client under the Main Contract and TME shall have towards Subcontractor under this Subcontract the same rights, powers and remedies in respect of the Services as Client has towards TME.
4.6Subcontractor must inform TME immediately of any event or circumstances which may immediately, or in the future, impede the proper and timely execution of the Services.
4.7Where TME is required by the terms of the Main Contract to give any return, account or notice, Subcontractor must in relation to the Services give a similar return, account or notice or such other information in writing to TME as will enable TME to comply with such terms punctually.
4.8Notwithstanding anything set out in Paragraph 6 below, TME shall not be obliged to make any payment for Services to Contractor where TME has not received commensurate or sufficient payment from the Client under the Main Contract.
4.9Subcontractor must comply with all instructions and decisions of Client which relate to the Services and are notified and confirmed to Subcontractor in writing by TME irrespective of whether such instructions and decisions were validly given under the Main Contract. Subcontractor shall have like rights (if any) to payment against TME in respect of such compliance as TME is actually able to enforce against Client under the Main Contract.
4.10TME shall have like powers in relation to the Services to give instructions and decisions as Client has in relation to these Services under the Main Contract and Subcontractor shall have the like obligations to abide by and comply therewith and the like rights in relation thereto as TME has under the Main Contract.
4.11 TME shall make such variations of the Services whether by way of addition, modification or omission as may be:
4.11.1ordered by Client under the Main Contract and confirmed in writing to Subcontractor by TME; or
4.11.2agreed to be made by Client and TME and confirmed in writing to Subcontractor by TME; or
4.11.3ordered in writing by TME.
4.12The value of all authorised variations shall be determined by using the rates and/or prices specified in Appendix 2. Where applicable rates and/or prices do not exist, Subcontractor shall determine new prices using “like units of work” for which rates and/or prices are contained in this subcontract as a reference pricing level. Contractor shall supply sufficient detailed back-up to enable TME to verify and approve new prices. In determining what is a fair and reasonable determination, regard shall be had to any valuation made under the Main Contract in respect of the same variation.
4.13 After completion of the Services, Subcontractor shall maintain the Services and shall make good such defects and imperfections therein as TME is liable to make good under the Main Contract for the like period and otherwise upon the like terms as TME is liable under the Main Contract.
4.14Nothing in this Subcontract shall be deemed to represent that Subcontractor, or any of its personnel, its subcontractors, subcontractor’s personnel, third parties or agents, are the agents, representatives or employees of TME or Client. Subcontractor shall be an independent contractor and shall have full responsibility for performing the WORK in accordance with the terms of this Subcontract.
5.Warranty and Remedies
5.1Subcontractor warrants for the benefit of TME and Client:-
(a)that the Services shall be performed with all proper skill and care, in accordance with best and sound engineering, craft and practices utilising competent personnel;
(b)that the Services shall be performed within the requirements and conditions of this Subcontract and the Main Contract;
(c)that the Services shall be suitable for the purpose and use for which they are intended;
5.2If the above warranties are breached by Subcontractor then Subcontractor must, if so requested by TME, promptly repair, rectify or replace at location any defects, imperfections or other faults in the Services at no cost to TME. All replacement work and workmanship will benefit from the same warranty as is given by Subcontractor for the original Services.
5.3If an emergency occurs or if Subcontractor fails promptly to initiate and complete corrective action for the Services after TME has given notice, then TME may perform the necessary repair or correction and Subcontractor must pay to TME the full amount expended by TME on such repair or correction.
5.4If Subcontractor is required to perform Services by a specified date and fails to perform these Services to TME’s satisfaction by that date, then Subcontractor shall pay to TME an amount equal to One per cent (1%) of the contract price of these Services for each day after the specified date that the Services remain unperformed to TME’s satisfaction or such higher amount as may be set out in the Special Conditions in Appendix 3. The maximum amount payable to Subcontractor for any one failure shall not exceed Fifteen per cent (15%) of the contract price for the Services in question or such higher amount as may be set out in the Special Conditions in Appendix 3.
5.5The warranties and remedies set out in this Clause are in addition to those implied by or available at law or in equity and will continue in force after acceptance of any Services by TME.
6.Payment and Invoicing Procedure
6.1TME will pay Subcontractor for the provision of Services in the manner and at the rates specified in Appendix 2.
6.2TME will pay the invoice within ninety (90) calendar days upon receipt of the corresponding amount for the service from Client.
6.3If there is a dispute concerning all or part of an invoice, TME may withhold the portion in dispute. The parties shall endeavour to resolve the dispute promptly.
6.4Payment of an invoice by TME is not an admission that the Services as provided meet the requirements of this Subcontract.
6.5TME may deduct from any payment due on an invoice any amounts owing to TME from Subcontractor pursuant to this Subcontract.
7.Termination
7.1If Subcontractor fails to comply with its obligations under this Subcontract, TME may at any time thereafter, terminate this Subcontract immediately by notice to Subcontractor.
7.2TME may terminate this Subcontract immediately by notice to Subcontractor if Subcontractor enters into any deed of arrangement or commits an act of bankruptcy or compounds with its creditors, has a receiving order made against it, or an order or resolution is passed for its winding up otherwise than for the purposes of a bonefide amalgamation or reconstruction which has previously been approved by TME or otherwise becomes insolvent within the meaning of any applicable law or if TME reasonably apprehends that any of the above events are likely to occur.
7.3If TME terminates this Subcontract as provided for in this Clause, then TME shall only be liable to pay Subcontractor for Services performed and completed as at the date of termination.
7.4TME may set off against any amounts due to Subcontractor for Services properly performed under this Subcontract TME’s additional costs in completing the Services incurred by TME as a result of Subcontractor’s default.
7.5TME may in any event terminate this Subcontract without giving any reason by giving Subcontractor Thirty (30) days written notice of its intention to do so.
7.6If the contract between Client and TME is terminated for any reason then TME may immediately terminate the this Subcontract by notice to Subcontractor. Such termination shall be deemed to have effect on the earlier of the termination of TME’s contract with Client or the date of the notice.
8.Assignment
8.1Subcontractor may not assign the performance of this Subcontract without the prior written consent of TME.
8.2TME may assign this Subcontract to an Affiliate or any third party subject to the Subcontract of Subcontractor which shall not be unreasonably withheld.
9.Occupational Health, Safety and Environment, (OHSE)
9.1Subcontractor shall at all times comply and ensure that its personnel comply with all applicable safety and health regulations required by OHSAS 18001, ISO 14001 and the Abu Dhabi Environment, Health and Safety Management System (EHSMS) and any other bodies having jurisdiction over the work. Subcontractor shall also comply with all health and safety requirements of TME which are notified to Subcontractor.
9.2Subcontractor must carry out the Services with due diligence in a safe and workmanlike manner in accordance with good practice using personnel who are competent and qualified to undertake their required duties in a safe and efficient manner. Subcontractor must take all necessary steps and precautions in performing the Services in order to protect all personnel, property and the environment. Incidents, injuries and illness requiring medical attention, as well as environment-related incidents and damage to the property of Client, TME and Subcontractor shall be reported to TME at the time of occurrence.
9.3Consultant shall maintain Worksite OHSE statistics in form and content approved by TME, which shall at all times be available for inspection by TME, and shall be submitted to TME upon its written request
10.Accounting and Audit
10.1Subcontractor must maintain a correct and complete set of records relating to the Services. TME may at any time within a period of two (2) years after the performance of the Services or such larger period as Client may be entitled to audit TME’s records under the Main Contract conduct an audit of those records for the purpose of verifying the correctness of any invoices rendered by Subcontractor. Client may join in any said audit. The right to audit will be exercised upon reasonable notice at reasonable times and TME may authorise a representative to conduct the audit. TME and where it has joined the audit, Client, is entitled to take copies of any records inspected in the course of that audit. Subcontractor must co-operate fully and furnish TME and Client all necessary assistance in the conduct of the audit.
10.2Any amounts which are found to have been overpaid as a result of such audit must be repaid by Subcontractor to TME within fourteen (14) days of Subcontractor being notified of the overpayment.
11.Confidentiality
11.1Subcontractor must ensure that it and Subcontractor Group do not:
(a)make any announcement, or issue any circular in connection with the subject matter of this Subcontract or the award of this Subcontract without the prior written approval of TME.
(b)divulge information whether written, drawn, printed, kept on computer or in any other form, howsoever acquired and whatever it relates to, whether drilling, coring, logging, testing, surveying, geographical, seismic, geological, engineering, personal or other matters and from whomsoever obtained in the performance of the Services to any person, company or corporation other than TME.
(c)use any such information, except for performance of the Subcontract and do return all copies of same to TME at the completion of the Services for which the information was obtained or upon termination of this Subcontract as appropriate.
(d)reproduce, copy, disclose to, place at the disposal of or use on behalf of any third party or enable any third party to peruse, copy or use any such information or other documents or materials received or prepared save such as is strictly necessary for the performance of the obligations of Subcontractor under the Subcontract.
11.2Subcontractor’s obligations under this Clause shall not apply to information which :
(a)is part of the public domain;
(b)was in Subcontractor’s possession prior to award of this Subcontract and which TME did not notify Subcontractor as being confidential;
(c)was received from third parties and for which, to the best of TME’s knowledge having made all reasonable enquiries, it had normal rights of disclosure.
11.3Subcontractor shall be responsible for any disclosures of confidential information by any member of Subcontractor Group as if that disclosure was made by Subcontractor.
12Quality Management
12.1Subcontractor shall conduct a continuous program of quality control for all Services. Subcontractor’s quality control program and procedures for the foregoing shall be submitted in writing to TME for review and approval, in sufficient detail to delineate those items to be reviewd and the manner in which they are to be reviewed, and shall adequately describe all quality control activities contemplated, including provision for adequate documentation of Subcontractor’s performance of such quality control and inspection. Subcontractor’s quality control program and inspection procedures shall be submitted to TME within four (4) weeks after award of this Subcontract and prior to payment of Subcontractor’s first invoice.