SUPPLY AGREEMENT TERMS AND CONDITIONS OF PURCHASE (INFLIGHT SERVICES) SELLER IS ADVISED TO READ THESE TERMS & CONDITIONS CAREFULLY THIS SUPPLY AGREEMENT (the Agreement ) is made on the applicable dates recorded on the attached Rate Agreement / Purchase Order between (1) [Emirates, a Dubai corporation established by Decree No. 2 of 1985 (as amended), having its principal place of business at Emirates Group Headquarters, PO Box 686, Dubai, United Arab Emirates (the Customer )]; or (1) [Dnata, a Dubai corporation established by Decree No. 1 of 1987 (as amended), having its principal place of business at Emirates Group Headquarters, PO Box 1515, Dubai, United Arab Emirates (the Customer )]; and (2) The Supplier named and detailed on the order confirmation, in accordance with supplier registration documentation submitted to the Customer (the Supplier ) The parties are sometimes referred to herein as Parties and singularly as a Party. Acceptance of the order deems acceptance of this Agreement herein unless otherwise agreed by both parties ahead of any formal commitment. WHEREAS: (A) (B) (C) Supplier is engaged in the business of supplying, in accordance with the highest industry standards and practice, first-quality goods as detailed in the Specification, a copy of which is attached hereto as Attachment A (the Specification ) (the Goods ); Customer is engaged inter alia in the business of providing [international passenger and cargo air transportation] or [travel agency and other travel related] services and, in relation thereto, wishes to purchase the Goods from the Supplier. This Agreement is entered into by the Parties for the purposes of regulating arrangements between them in relation to such supply and purchase. NOW IT IS HEREBY AGREED AS FOLLOWS: 1
1. Interpretation 1.1 The Annexes, Schedules, Specifications, Proposals, and Attachments hereto (as amended from time to time) and any Call Off Order issued in accordance with clause 2.2 below form part of and are deemed to be incorporated into this Agreement. 1.2 The Recitals form part of and are deemed to be incorporated into this Agreement. 1.3 The headings in this Agreement are for ease of reference only and shall not affect the construction of this Agreement. 1.4 References to time in this Agreement shall be construed by reference to the Gregorian calendar. 2. Application of Terms 2.1 Supplier agrees to supply the Goods to Customer for the term of this Agreement in accordance with the terms and conditions of this Agreement. 2.2 Customer shall from time to time issue to Supplier a fully completed Call Off Order in the form attached hereto as Attachment B (the Call Off Order ), signed by an authorised representative of Customer pursuant to Clause 15.7(a) below. Supplier shall give express written acknowledgement to Customer of each Call Off order within 24 hours of its receipt. 2.3 No terms and/or conditions endorsed upon, delivered with or contained in Supplier s quotations, acknowledgements of Call Off Orders, specifications or similar documents shall form part of the agreement between the Parties for the supply of Goods hereunder and Supplier hereby waives any rights which it otherwise might have to rely on such terms and/or conditions. 2.4 Nothing in this Agreement shall be construed to constitute an undertaking by Customer to purchase the Goods or any minimum or maximum quantity thereof at any time during the term of this Agreement. 2.5 Furthermore, nothing in this Agreement shall operate to prevent Customer, in its sole discretion, at any time and from time to time, appointing another or other suppliers for the supply of goods similar to or competing with the Goods. 3. Prohibition on Commissions 3.1 Supplier represents and warrants to Customer that it has not paid or given or agreed to pay or give, whether directly or indirectly, any fee, commission, payment, salary, gift or other form of consideration ( Commission ) to any employee of any member of the Emirates Group ( Employee ) or any agent, third party contractor engaged in the performance of this Agreement or independent representative acting on behalf of Supplier ( Relevant Party ), in connection with the entering into of this Agreement by 2
Customer or the performance of this Agreement by Customer or with any preliminary stage leading to either or both. 3.2 Supplier hereby agrees with Customer not at any time hereafter, directly or indirectly, to pay or give, or indirectly provide, any Commission to any Employee or any Relevant Party, in connection with the entering into of this Agreement by Customer or the performance of this Agreement by Customer or with any preliminary stage leading to either or both. 3.3 For the purposes of this Clause 3 Emirates Group means collectively Emirates, Dnata, Dnata World Travel, any wholly owned subsidiary of any of Emirates, Dnata, Dnata World Travel, and any branch, business or division operated by any of the foregoing, and member of the Emirates Group means any of the foregoing. 4. Quality and Defects 4.1 The Goods shall be of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Specification and any sample(s) and/or pattern(s) supplied to Customer by Supplier. 4.2 At any time prior to delivery of the Goods to Customer, Customer shall have the right to inspect and test the Goods and/or require a sample or pattern thereof to be delivered by Supplier. 4.3 If the results of such inspection or testing cause Customer to be of the opinion that the Goods do not conform or are unlikely to conform to the Specification or to any sample(s) and/or pattern(s) supplied to Customer by Supplier, Customer shall inform Supplier and Supplier shall immediately take such action as is necessary to ensure conformity and in addition Customer shall have the right to require and witness further testing and inspection. 4.4 Notwithstanding any such inspection or testing, Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect Supplier s obligations under this Agreement. 4.5 If any of the Goods fails to comply with the provisions set out in this clause 4, Customer shall be entitled to avail itself of any one or more remedies listed in clause 12 below. 4.6 Supplier shall at the request of Customer provide pre-production samples and production samples of the Goods for Customer s review. 5. Delivery 3
5.1 The Goods shall be delivered, on the terms, on the date(s) and to such place of delivery as is specified in the Call Off Order. Supplier shall off-load the Goods at its own risk as directed by Customer. 5.2 Supplier shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the Call Off Order number, date of Call Off Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered under that Call Off Order. All delivery notes must be signed by the addressee or by Customer s nominated freight forwarding agent as proof of delivery. 5.3 Time for delivery of the Goods shall be of the essence. 5.4 Unless otherwise stipulated by Customer in the Call Off Order, deliveries shall only be accepted by Customer in normal business hours, namely from 0700 to 1530 hours Saturday to Tuesday and 0700 to 1500 hours Wednesday. 5.5 If any Goods are not delivered on the due date then, without prejudice to any other rights which it may have, Customer reserves the right to: 5.5.1 cancel the relevant Call Off Order and any other outstanding Call Off Orders in whole or in part; 5.5.2 refuse to accept any subsequent delivery of Goods which Supplier attempts to make; 5.5.3 recover from Supplier any expenditure reasonably incurred by Customer in obtaining substitute goods for the non-delivered Goods from another supplier; and 5.5.3 Supplier agrees to pay Customer liquidated damages for any delay in the delivery of the Goods. For each day by which Supplier fails to deliver the Goods by the delivery date specified in the Call Off Order, Supplier shall pay to Customer 1% (one percent) of the Price (as set out in clause 7 below) without the need for any demand being made and as a genuine pre-agreed non-penalty estimate of the loss suffered by Customer. 5.6 If Supplier requires Customer to return any packaging material to Supplier, that fact must be clearly stated on any delivery note delivered to Customer and any such packaging material shall only be returned to Supplier at Supplier s cost. 5.7 Where Customer agrees to accept delivery under any Call Off Order by instalments, the Call Off Order shall be construed as a single order in respect of all instalments. Accordingly, failure by Supplier to deliver any one instalment shall entitle Customer at its option to treat the whole Call Off Order as repudiated. 4
5.8 If Goods are delivered to Customer in excess of the quantities ordered, Customer shall not be bound to pay for the excess and any excess shall be and shall remain at Supplier s risk and shall be returnable at Supplier s cost. 6. Risk and Title 6.1 The Goods shall remain at the risk of Supplier until delivery to the Customer or to Customer s nominated freight forwarding agent is complete (including off-loading and stacking), when risk in the Goods shall pass to the Customer. 6.2 Title in the Goods shall pass to Customer in accordance with the agreed INCO Terms. 7. Price 7.1 The price of the Goods shall be as stated in the Rate Agreement / Purchase Order and no variation in the price nor extra charges whatsoever shall be accepted by the Customer during the term of this Agreement. 7.2 For the avoidance of doubt, all out-of-pocket costs incurred by Supplier in relation to its supply and delivery of the Goods (including without limitation communication costs, printing, office costs, travel and related expenses) shall be borne by Supplier. 7.3 Supplier shall be responsible for all taxes, imposts, fees, duties and the like related to or levied on the Goods during the term of this Agreement and shall indemnify Customer against all liabilities, costs and expenses incurred in connection therewith. 8. Invoicing and Payment 8.1 Supplier shall invoice Customer upon, but separately from, delivery of the Goods to Customer. Invoices shall clearly state the relevant Call Off Order number and shall be accompanied by delivery notes signed by the addressee pursuant to clause 5.2 above. Invoices shall be submitted to Emirates Accounts Payable Manager at the address set out in clause 15.7(a) below. 8.2 Supplier shall be solely responsible for payment to any third party used by it in relation to supply and delivery of the Goods and shall not represent to any such third party that Customer is bound to, or in any way responsible for payment of invoices rendered by, such supplier. 5
8.3 Unless otherwise agreed in writing, Customer shall settle Supplier s invoices within sixty (60) days of receipt of the invoice, unless otherwise stated in the Call Off Order. 8.4 Without prejudice to any other right or remedy, Customer reserves the right to set off any amount owing at any time from Supplier to Customer against any amount payable by Customer to Supplier under the Contract. 9. Confidentiality 9.1 Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Supplier by Customer or its agents and any other confidential information concerning Customer s business or its products which Supplier may obtain and Supplier shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging Supplier s obligations to Customer and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind Supplier. 9.2 Upon the expiry or termination of this Agreement, Supplier shall return to Customer within fifteen (15) days all of Customer s confidential information held by Supplier. 9.3 This clause 9 shall survive the expiry of termination of this Agreement for a minimum period of five (5) years. 10. Customer's Property Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by Customer to Supplier or not so supplied but used by Supplier specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of Customer but shall be held by Supplier in safe custody at its own risk and maintained and kept in good condition by Supplier until returned to the Customer and shall not be disposed of other than in accordance with Customer s written instructions, nor shall such items be used otherwise than as authorised by Customer in writing. 11. Term and Termination 11.1 This Agreement shall come into effect on the effective date and shall, unless earlier terminated in accordance with this clause 11, terminate co-terminously with the Rate Agreement / Purchase Order. 11.2 Notwithstanding clause 11.1 above, Customer shall have the right, at any time and without the need to give reason, to terminate this Agreement by giving Supplier ninety (90) days advance written notice. In such event, Supplier shall continue to 6
accept Call Off Orders under this Agreement during the notice period and shall honour any Call Off Orders in progress at the effective date of termination, notwithstanding that delivery dates for any particular Call Off Order may fall after such date. 11.3 Customer shall have the right at any time by giving notice in writing to Supplier to terminate the Contract forthwith if: 11.3.1 Supplier commits a material breach of any of the terms and/or conditions of this Agreement; or 11.3.2 Supplier commits any breach of the provisions of Clauses 3.1 and 3.2; or 11.3.3 any distress, execution or other process is levied upon any of the assets of Supplier; or 11.3.4 Supplier has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of Supplier, or a resolution is passed or a petition presented to any court for the winding-up of Supplier or for the granting of an administration order in respect of Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of Supplier; or 11.3.5 Supplier ceases or threatens to cease to carry on its business; or 11.3.6 the financial position of Supplier deteriorates to such an extent that, in the opinion of Customer, the capability of Supplier adequately to fulfil its obligations under the Agreement has been placed in jeopardy. 11.4 Termination of the Agreement, however arising, shall be without prejudice to the rights and obligations of either Party accrued prior to termination. Any terms and/or conditions of this Agreement which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination. 12. Remedies 12.1 Without prejudice to any other right or remedy which Customer may have, if any Goods are not supplied in accordance with, or Supplier fails to comply with, any of the terms of this Agreement, Customer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not the Goods or any part thereof have been accepted by Customer: 7
12.1.1 to rescind the Agreement and/or any Call Off Order hereunder (in whole or in part); 12.1.2 to reject the Goods (in whole or in part) and return them to Supplier at the risk and cost of Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by Supplier; 12.1.3 at Customer s option to give Supplier the opportunity at Supplier s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Agreement are fulfilled; 12.1.4 to refuse to accept any further deliveries of the Goods but without any liability to Supplier; 12.1.5 to carry out at Supplier s expense any work necessary to make the Goods comply with the Specification; and 12.1.6 to claim such damages as may have been sustained in consequence of Supplier s breach or breaches of the Agreement. 13. Indemnity 13.1 Supplier shall keep Customer indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses associated therewith) awarded against or incurred or paid by Customer as a result of or in connection with: 13.1.1 defective workmanship, quality or materials of the Goods; 13.1.2 an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods; and 13.1.3 any claim made against Customer in respect of any liability, loss, damage, injury, cost or expense sustained by Customer s officers, employees or agents or by any customer of Customer or any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Agreement by Supplier. 13.2 Supplier shall maintain such insurance covers for loss, damage, or injury to Customer s property and personnel including loss, damage or injury caused to Customer s customers and third parties and against the liabilities referred to in clause 8
13.1.3 and shall provide to Customer on demand with valid certificates of insurance in respect thereof. 13.3 Customer shall not in any circumstances be liable to Supplier for indirect or consequential losses including, without limitation, loss of profit, loss of business, depletion of goodwill and like losses. 14. Force Majeure 14.1 Neither Party shall be liable to the other Party by reason of any delay in performing or any failure to perform any of its obligations hereunder, if such delay or failure was due to any cause beyond the Party s reasonable control including without limitation acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riots, civil commotions, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes ( Force Majeure ). 14.2 If either Party is affected by Force Majeure, it shall promptly notify the other Party in writing of the nature and extent of the circumstances in question and shall take all reasonable steps to mitigate the effect of the delay or failure. Performance of the Agreement shall be suspended for such time as the delay continues provided that, where Force Majeure continues for a period of one (1) month or more, Customer shall be entitled to terminate this Agreement forthwith by written notice to Supplier to that effect. 15. General Provisions 15.1 This Agreement is not intended to nor shall it be construed to create or establish any employer-employee, agency, partnership, or joint venture relationship between the Parties. Neither Party shall, without the prior written consent of the other Party and whether during the continuation of, or after the expiry of, this Agreement, have any right to enter into any contract or commitment in the name of the other Party, to incur any obligation for, create any liability for, or bind the other Party in any respect whatsoever. 15.2 Supplier shall not be entitled to assign this Agreement or any part of it without the prior written consent of Customer. Customer may assign this Agreement or any part of it to any person, firm or customer. 15.3 No modification of or addition to this Agreement or any part thereof shall be valid unless made in writing and signed by both Parties. 15.4 This Agreement contains the entire agreement between the Parties with regard to the subject matter hereof and accordingly supersedes and cancels all prior discussions and documents in whatever form concerning the same. 15.5 No delay or failure by either Party in exercising any right conferred on it under this Agreement shall be deemed a waiver thereof. No waiver of any such right shall be effective unless made in writing. No waiver of any such right shall be deemed to be a waiver of any other such right. 9
15.6 If any term or condition of this Agreement is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of all other terms and conditions hereof shall not be in any way adversely affected thereby. 15.7 Any notice in relation to the subject matter hereof to be given by either Party to the other shall be given in writing (which shall without limitation include by facsimile, e- mail or any other means of electronic written communication) and shall be duly served upon, but only upon, actual delivery to the authorized representative of the Party at the address set out below or at such different address as such other may have substituted by written notice as aforesaid. The said authorized representatives and contact details of the Parties at the date of signature of this Agreement are as follows: 16. Governing Law and Jurisdiction 16.1 This Agreement shall be governed by and construed in accordance with the laws of and applicable in Dubai, United Arab Emirates. 16.2 In the event of any dispute arising out of or in connection with this Agreement, the Parties agree to exercise all efforts in good faith efficiently and amicably to settle such dispute in a timely manner. If such efforts fail to resolve the dispute, then the dispute shall be referred to and finally determined under the Rules of Commercial Conciliation and Arbitration of the Dubai Chamber of Commerce & Industry, by a sole arbitrator appointed in accordance with those Rules. The arbitration shall take place in Dubai and all proceedings, whether written or oral, shall be conducted in the English language. The arbitration award shall also be in the English language and shall be final and binding upon the parties and not subject to any appeal. 10
SCHEDULE A RATE AGREEMENT / PURCHASE ORDER 11