DEFINITIONS. “PO” means this Purchase Order. "Vendor" means the Vendor identified on the first page of the PO. "Employer" shall mean One&Only Villas at St Geran Limited, or its designated representatives, and all successors and assigns. "Developer" shall mean Kerzner International Development FZ LLC, acting hereunder as agents for and on behalf of the Employer. "Payment Application" shall mean an application in writing by the Vendor pursuant to this P.O., and such application shall be in a form required by and acceptable to the Employer. "Work(s)" means all of the labour, services, materials and/or equipment required to fulfill the Vendor's obligations under this P.O. “Completion Date” shall mean the date upon which the Works are to be completed, or in the case of a PO only for the supply of goods, the date on which the goods are to be delivered, and in either case such date shall be as noted in the PO. “Term” shall mean the duration of this Agreement commencing on the P.O. Date and expiring on the Completion Date.
PERFORMANCE. Vendor shall carry out and complete the Works and perform its obligations under this P.O: a. in accordance with the terms and conditions in this P.O., all applicable laws and to the satisfaction of the Employer; and b. for an amount not exceeding the Total Order Value, as may be adjusted in accordance with the provisions of this P.O.
The Works shall be completed by the Completion Date. Where Works purchased herein are to be installed in, fitted or attached to, or in any manner integrated with the work of others, Vendor shall cooperate with others and shall coordinate delivery and performance of the Works with others in accordance with the Vendor's and the Employer's timetable and to the Employer's satisfaction. Vendor shall protect the Works and other property from damage. Vendor shall replace or repair Work or property damaged by or through Vendor at its own expense.
If at any time during the Term the Vendor is unable or likely to become unable, for whatever reason, to perform the Work as per the Completion Date, irrespective of the reason for its inability to perform such Work, the Vendor must: a. notify the Employer of that fact; and b. promptly provide to the Employer for its consideration, a reasonably revised schedule.
The Employer shall at its sole discretion accept or refuse such revised schedule. In case the Employer refuses such revised schedule and the Employer had not delivered the Work as per the Completion Date and in accordance with the description, the Vendor shall be deemed in material breach of this Agreement and Employer may terminate this agreement without prejudice to any right of indemnity in accordance with Clauses 8 and 11 hereof, or any other right under this Agreement.
PAYMENT. On or before the 25th calendar day of each month following a month during which the Vendor provided Works hereunder, the Vendor shall provide the Employer with a Payment Application for conforming Works delivered, installed and accepted by the Employer during the preceding calendar month. If a Payment Application is submitted to the Employer in the required form(s) and provided that the amount claimed in such Payment Application does not, in the aggregate, exceed the Total Order Value, then the amount of such Payment Application approved by Employer, less any retention, if applicable, shall be paid by the last day of the month following the month in which the Payment Application for conforming and accepted Works is made. As a condition precedent to the Employer's obligation to make any payment to the Vendor hereunder, including final payment, the Vendor shall furnish with each Payment Application, including the Payment Application for final payment, such support and details of cost, waivers and releases of claims, sworn statements, and other documentation in form and substance as the Employer may request from time to time. After all the Works to be furnished under this P.O. have been furnished and accepted by the Employer in accordance with the terms and conditions hereof, the balance due to the Vendor, including any retention, will be paid. Without limitation of any other right or remedy available to the Employer, if at any time there shall be evidence of a claim for which the Employer might become liable arising out of any act or omission on the part of the Vendor, the Employer shall have the right to retain from any payment an amount sufficient to defend and indemnify the Employer against any such claim, including reasonable lawyers' fees and court costs in arbitration and at pre-trial, trial and appellate levels.
MODIFICATIONS. For any modifications of this P.O. to be valid, they must be in writing and signed by the Employer's authorized representative. It is expressly understood by the Vendor that no substitutions or excess quantities of materials or change in price of any portion of the Works will be allowed without the prior written consent of the Employer. The receipt by the Employer of any quotation form, sales confirmation or other document from the Vendor shall not, in absence of a written acknowledgment by the Employer expressly agreeing to same, change in any manner, or add to the terms and conditions hereof. The Employer reserves the right at any time to make changes in the Works covered by this P.O. Any claim by the Vendor must be asserted within Thirty (30) days from the date on which the circumstances giving rise to such claim arose, or such claim shall be deemed to have been waived by the Vendor. Nothing in this Paragraph 4, however, shall excuse the Vendor from proceeding with this P.O. as changed.
FEES AND TAXES. Notwithstanding anything contained herein to the contrary, any price quoted by the Vendor for the provision of the Works in connection with this P.O. includes all sales, use or similar taxes imposed by any governmental authority in connection with the Project, and any fees or costs incurred by the Vendor to conduct business in Mauritius. Where any materials’ point of origin is external to Mauritius, the Vendor shall obtain a shipper's export declaration or other similar documentation with respect to such materials. Vendor shall cause all its subcontractors and material suppliers, at any tier, to comply with the requirements of this P.O. Any tax imposed upon the Works, as provided hereunder, must be specifically identified on the Vendor's Payment Applications. If any manufacturer's excise or other tax is included in sums paid by the Employer for any Works provided hereunder and any part of that tax is refunded to the Vendor, then the Vendor shall immediately reimburse the Employer for the amount of such refund.
INSPECTION AND ACCEPTANCE. All Works purchased or furnished hereunder shall be subject to inspection and testing by or through the Employer at all times and places, including during the manufacture of any portion thereof. Any approval of submittals or acceptance of Works required by this P.O. must be made in writing by the Employer in order to be effective, notwithstanding anything to the contrary contained in this P.O. or any other document forming a part of this P.O. No such approval or acceptance shall not affect or prejudice in any way the Vendor’s obligations and warranties under the P.O.
Notwithstanding the above, the Vendor shall warrant all the Works against defects for a period of one year following delivery or completion. This Clause shall survive the termination of this Agreement.[IF APPLICABLE]
WARRANTIES. Without limitation of any other warranties, express or implied, the Vendor hereby warrants to the Employer, acknowledging that the Works furnished under this P.O. are to be utilized for the Project, that: (a) all Works covered by this P.O. shall strictly conform to the plans and other descriptions and data furnished and approved in accordance with the terms hereof; (b) all Works shall be performed in a proper and workmanlike manner and be of first-class quality and; (c) the Vendor has full right, power and authority to and shall sell, transfer and deliver all materials furnished hereunder free and clear of any encumbrances, right or claim by others. Vendor shall cause its subcontractors and material suppliers, at any tier, to be bound by this provision.
FAILURE OF PERFORMANCE AND REMEDIES. A failure or refusal by the Vendor to perform or observe any of the Vendor's agreements, undertakings, warranties or other obligations under this P.O. shall be a default hereunder. In the event of such a default, the Employer shall be entitled, on a without limitation, without prejudice and non-exhaustive basis, to require the Vendor to make good such default at the Vendor’s sole cost and/or to immediately terminate this P.O. upon delivering written, electronic, telegraphic or facsimile notice to the Vendor. In the event that the Vendor fails to make good such default, the Employer may, on a without prejudice basis, instruct other vendors to rectify such defaults and claim the cost of doing so from the Vendor as a debt due. Pursuant to this paragraph 8, the Employer shall have no further obligations hereunder and the Employer shall have the right to seek any and all remedies available at law or in equity, including injunctive relief, and in the event of termination the Vendor shall discontinue the Works in accordance with paragraph 12 below.
INDEMNITY. Vendor shall protect, defend, indemnify and hold the Employer, the Developer, the project manager, their parents, affiliates and subsidiaries, at all tiers, any lender for any of them ("Lender"), and their partners, insurers, sureties, employees, officers, directors, shareholders, representatives, agents, servants, and all persons acting for any of them, harmless from and against any and all claims, losses, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorney’s fees and costs in arbitration and at pre-trial, trial and appellate levels), directly or indirectly, arising out of or resulting from: (a) the Vendor's refusal or failure to perform or observe any of the Vendor's agreements, undertakings, warranties or obligations referenced herein, including without limitation, the timely delivery, furnishing or utilization by any person of any non-conforming Works; or (b) any actual or alleged injury or death to any person or damage to any property in any manner arising out of or incident to, or claimed to arise out of or to be incident to, the performance required under this P.O..
INSURANCE AND PERMITS. Vendor shall, before proceeding with this P.O., obtain insurance and continue to maintain insurance with limits and coverages which shall be acceptable to Employer, and shall furnish Employer, at Vendor's expense, with: (a) certificates of insurance requested by, and satisfactory to, the Employer; and (b) all certificates, permits and/or licenses required for the performance of Vendor's obligations hereunder. Unless Employer otherwise agrees in writing, insurances will name Employer, the project manager, and their parents, affiliates, and subsidiaries, at any tier, as additional insureds. The furnishing of the insurance required hereunder shall in no way relieve or limit, or be construed to relieve or limit, any liability, responsibility or obligation, whatsoever imposed on the Vendor or any of its subcontractors and/or material suppliers, at any tier.
ASSIGNMENT. Vendor shall not assign any of its rights or obligations under this P.O. without prior written consent of Employer. Employer may assign its rights and obligations pursuant to this P.O. without the consent of Vendor. Vendor agrees to execute any consent to assignment and any other instruments as may be required by Employer or a Lender. Employer and any Lender shall have the right to approve subcontracts for the Works prior to execution by each subcontractor and/or supplier, and the Vendor shall not enter into any subcontract with any subcontractor or supplier to which Employer or any Lender objects. All subcontracts shall be assignable to Employer or any Lender and may be assumed by any of them in the event that this P.O. is terminated, at the option of Employer, or such Lender. All subcontracts shall provide that they are terminable by Employer or any such Lender without additional costs beyond those for materials delivered to and for Works furnished at the Project Site prior to the date of termination, in accordance with this P.O..
TERMINATION. Employer may terminate this P.O. at any time for any reason on 5 days’ written notice to Vendor. Upon termination, Vendor shall: a. quickly and efficiently discontinue the performance of the Works; b. protect, store and secure the Works against deterioration, loss and damage; and c. subject to the other provisions of this P.O. and only where termination does not result from a default by Vendor, submit a Payment Application in accordance with paragraph 3 for any conforming Works delivered, installed and accepted by the Employer as to the date of termination. Payment of the amount of such Payment Application shall be in full and final compensation of all claims, costs, liabilities and damages howsoever arising under this P.O. and generally at law.
GOVERNING LAW AND COMPLIANCE WITH LAWS.
This P.O. shall be governed by the laws of [insert country of location of Resort]. The Vendor (and the Works to be furnished hereunder) shall comply with all applicable federal, state, and local laws and with all applicable laws, ordinances, rules, regulations and orders issued thereunder, including, without limitation, all hiring and contracting laws. The Vendor shall furnish the Employer with such certificates of compliance with all applicable laws, ordinances, rules, regulations and orders that the Employer may from time to time request. The Vendor shall bear the expense of compliance with all applicable laws.
DISPUTE RESOLUTION. All disputes and differences which arise between the Parties in connection with this P.O. or any part thereof shall be amicably settled within 30 days of the dispute or difference arising, but failing which the matter shall be referred to the exclusive jurisdiction of the courts of Mauritius.
COMPLIANCE. Each party shall: a. At all times comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and improper payments including but not limited to the provisions of the U.S. Foreign Corrupt Practices Act of 1977 and the U. K. Bribery Act 2010 (‘Relevant Requirements’); b. Have and maintain in place throughout the term of this Agreement policies and procedures, including adequate procedures under the Relevant Requirements, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and c. Subsection 11.28.3 Promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement. d. The parties acknowledge that breach of this clause 15 shall be deemed a material breach of this Agreement.