A3 - ABMC GTC Supplies Services IT and NL.docx

AMERICAN BATTLE MONUMENTS COMMISSION (ABMC)

32 rue de Monceau 75008 Paris - France

TEL : +33.1.40.75.27.00

30 October 2020

GENERAL CONDITIONS

Supplies and Services For Italy and the Netherlands

Whereas ABMC is an American governmental agency responsible for the operation, maintenance and improvement of American military cemeteries outside the United States, including in France; and

Whereas ABMC contracts for supplies and services to accomplish its mission of maintaining American military cemeteries and monuments in pristine condition; and

Whereas ABMC has adopted the following general terms and conditions that apply to contracts for supplies and services contracts in relation with ABMC sites and which are included, subject to any special conditions to be agreed separately and in writing and annexed to the parties’ contract, in the final contract for services with ABMC.

Accordingly, this document sets out the rights and obligations of ABMC and the service providers who agree to provide supplies and services to the American Battle Monuments Commission.

Article 1- Definitions

Wherever used in this document, the following words have the meaning given after them.

a. “Commission” or “ABMC”- American Battle Monuments Commission, an agency of the United States federal government.

b. “Contracting Officer”-The Officer authorized by the Commission to act in its name for the purpose of this contract.

c. “Contractor” - The person or firm with whom this contract is signed for supplies or services.

d. “Subcontractor” - A person or firm retained by the Contractor to execute certain work that is within the scope of the work set forth in the Contract.

e. “Contract” – The final signed agreement between the Contractor and the Commission, which will include these General Conditions set forth below.

Article 2 - Performance and acceptance

The Contractor shall provide all supplies and services as specified in the Contract with ABMC. The Contractor shall only tender for acceptance those items that conform to the requirements of the Contract. The Commission reserves the right to inspect or test any supplies or services that have been tendered for acceptance, and may require repair or replacement of nonconforming supplies, or reperformance of nonconforming services, at no increase in contract price. If repair/replacement or reperformance will not correct the defects or is not possible, the Commission may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Commission must exercise its post-acceptance rights—

(1) Within a reasonable time after the defect was discovered or should have been discovered; and

(2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

Article 3 - General Observations

The Contractor acknowledges that it has taken steps reasonably necessary to understand the nature of the supplies or services to be provided under the Contract, and how such supplies and services will be used by the ABMC, and has ascertained that the supplies or services to be provided are appropriate to ABMC’s requirements.

Article 4 - Subcontractors

The Contractor shall not subcontract its obligations under the Contract without the Contracting Officer's prior written consent.

Article 5 - Cemetery

If the supplies or services are being provided to a military cemetery or a commemorative monument operated by ABMC, the Contractor’s personnel shall exhibit respectful, quiet, and dignified behavior at all times while at such ABMC sites.

Article 6 - Labor and Social laws, Public regulations

6.1 The Contractor for the supplies and services, being the sole employer of all workers required for the execution of this Contract, and any subcontractors, shall be responsible for compliance with all applicable labor, immigration, and social protection/insurance laws, including all worker Accident Insurance and Social Security Laws of the country in which the work is to be performed or supplies delivered, and for expenses in connection therewith, and accepts full liability for any and all claims whatsoever which may be asserted by any party from the Contractor’s failure to observe said laws.

6.2 The Contractor is responsible for all costs, fees and expenses incurred in connection with complying with applicable legal requirements; accepts full liability for any and all claims which may be asserted by any party from its failure to comply with these legal requirements; and agrees to indemnify the Commission for any fees, fines, penalties, or other costs incurred by the Commission as a result of the Contractor’s or any subcontractor’s failure to comply with these legal requirements.

6.3 The Contractor, and any subcontractors, shall provide to the Commission upon request or as required by law a copy of all documents that demonstrate compliance with applicable labor, immigration, and social protection/insurance laws.

Article 7 – Intellectual Property

The contractor shall hold the Commission, its Contracting Officer or other representative, and all other persons acting for it as agents, harmless from any liability in connection with the use by the Contractor of any patented or unpatented invention or process, trademark, copyright, or moral right in the goods or services herein contracted for, or in any way concerning the performance of the Contract by the Contractor, and shall accordingly indemnify the Commission with respect to any claims, damages, or costs (including legal fees) the Commission may incur as a result thereof.

Article 8 - Termination of Contract

(i) Termination clause for the convenience of the Commission. The Commission reserves the right to terminate this contract, or any part hereof, for its sole convenience and at its discretion. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work.

The Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed and accepted prior to the notice of termination, including a reasonable profit for the supplies delivered or services performed, but which in no event may exceed the original contract price, less (a) amounts already paid, and (b) the contract price of any work not terminated by the Contractor.

The Contractor hereby waives any claim, in contract, tort or otherwise, that could arise in connection with the termination of the Contract under this section, other than that set forth above. The Contractor shall not be paid for any work performed or costs incurred which reasonably could have been avoided.

(ii) Termination for cause. The Commission may terminate this Contract, or any part hereof, for cause in the event of (a) any default by the Contractor, or (b) if the Contractor fails to comply with any contract terms and conditions, or (c) fails to provide the Commission, upon request, with adequate assurances of future performance. In the event of termination for cause, the Commission shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Commission for any and all rights and remedies provided by law. If it is determined that the Commission improperly terminated this contract for cause, such termination shall be deemed a termination for convenience.

In the event of termination for cause, the Commission shall not be liable to the Contractor in any amount for supplies or services not accepted, and the Contractor shall be liable to the Commission for damages as provided by law, including the internal administrative costs to the Commission, and all other external costs, incurred in the re-procurement of the works, as well as direct, indirect, material and immaterial damages.

Article 9 - Exemption of taxes

Agreements exist between the United States Government and the Belgian, British, Dutch, French, Italian, Luxembourg, Tunisian, Philippine, Mexican and Panamanian Governments, respectively, which provide for exemption from certain custom duties and taxes which might otherwise be incurred in connection with the work, including the following:

It is the responsibility of the Contractor to determine when such exemptions will be applicable to its activities, to make such timely requests or reports as these Governments may require, and to make corresponding allowance in payment due by the Commission.

Article 10 – Payments

A. Invoice:

1) The Contractor shall submit invoices by email to the address designated in the contract to receive invoices. An invoice must include—

2) Invoices will be paid in accordance with the Prompt Payment Act (31 U.S.C. 3903) and Office of Management and Budget (OMB) prompt payment regulations at 5 CFR Part 1315.

3) Incomplete or incorrect invoices may be rejected and returned to the Contractor.

4) The Commission upon reasonable notice to Contractor may modify payment and billing procedures under the Contract as may be required to conform to updated ABMC accounting practices.

B. Payment: Payment shall be made for items accepted by the Commission that have been delivered to the delivery destinations set forth in this contract. Payments will be made within 30 days after receipt and acceptance of a proper invoice.

Any amounts that may become payable by the Contractor to the Commission under this contract shall bear simple interest from the date due until paid unless paid within 30 days of becoming due. The interest rate shall be the interest rate established by the Secretary of the Treasury of the United States as provided in 41 U.S.C. 7109, which is applicable to the period in which the amount becomes due, and then at the rate applicable for each six-month period thereafter as fixed by the Secretary of the Treasury until the amount is paid.

Article 11 –Limitation of liability

Notwithstanding any other provision of this contract, the total liability of the Commission under the Contract, whether to the Contractor or any other person or entity, and with respect to any claim for liability of the Commission arising out of, or in connection with the Contract, and whether in contract, tort or any other legal ground, may not exceed the value in euros or dollars assigned by the parties to the ordered supplies or services in the Contract.

Article 12 – Title

Unless specified elsewhere in this contract, title to items furnished under this contract shall pass to the Commission upon acceptance, regardless of when or where the Commission takes physical possession.

Article 13 - Warranty

The Contractor warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this contract.

Article 14 – Patent indemnity

The Contractor shall indemnify the Commission and its officers, employees and agents against liability, including costs, for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark or copyright, arising out of the performance of this contract, provided the Contractor is reasonably notified of such claims and proceedings.

Article 15 – Assignment

The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727).

Article 16 – Changes

Changes in the terms and conditions of this contract may be made only by written agreement of the parties.

Article 17 - Excusable delays

The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence.

Article 18 - Unauthorized Obligations

Unless expressly authorized by statute and specifically authorized under applicable agency regulations and procedures, when any supply or service acquired under this contract is subject to any End User License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or agreement, that includes any clause requiring the Government to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create a violation of the Anti-Deficiency Act (31 U.S.C. 1341), the following shall govern:

(i) Any such clause is unenforceable against the Commission.

(ii) Neither the Commission nor any Commission authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the EULA, TOS, or similar legal instrument or agreement. If the EULA, TOS, or similar legal instrument or agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Commission or any Commission authorized end user to such clause.

(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar legal instrument or agreement.

Article 19 – No acceptance of contrary terms

To the extent these General Conditions are inconsistent with any contrary or differing terms that may appear in the Contractor’s standard contract, terms and conditions, or other commercial or contractual documentation, whether or not supplied to the Commission, these General Conditions shall control.

Article 20 – Governing law and disputes

(a) The Contract, including these General Conditions and any special conditions that may be agreed in writing, shall be governed by French law.

(b) In the event of any controversy or claim arising out of or relating to this contract, the parties hereto agree first to try and settle this dispute by mediation.

(c) If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim arising out of or relating to the contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) (Rules) by one or more arbitrators appointed in accordance with said Rules. ABMC and the contractor are entitled to participate in the selection of the arbitrator by either agreeing on the person or by nominating arbitrators in accordance with the Rules.

(d) By accepting this arbitration clause, ABMC does not waive its or the United States’ ability to invoke immunity from jurisdiction before a court of another State in a proceeding that relates to the arbitration agreement. Moreover, ABMC does not waive any sovereign or state immunity in connection with the enforcement of an arbitration award that it could invoke by virtue of being part of the U.S. Government or that the United States could invoke.

(e) Notwithstanding the Rules, proper service of the Request for Arbitration, or such other document giving notice of the commencement of arbitration proceedings (the “Request for Arbitration”) as provided at article 4 of the Rules, shall be served on ABMC through the Hague Service Convention at its U.S. headquarters located at the following address:

Secretary American Battle Monuments Commission 2300 Clarendon Avenue, Suite 500 Arlington, VA 22201-3367 United States of America

Such Request for Arbitration must simultaneously be sent, for information purposes, by Registered Mail Return Receipt Requested, to the Commission’s Paris office, addressed as follows:

Director of Contracting American Battle Monuments Commission 18, Avenue Gabriel 75008 Paris France

Service of any judicial or legal documents, other than a Request for Arbitration under this Contract as provided in this article, shall be served on the government of the United States of America in Washington, D.C., in accordance with international treaties or diplomatic channels.

(f) The seat of the arbitration will be Paris, France.

(g) The language of the arbitration will be English, though the parties may submit documentary evidence, submissions, and witness testimony in French without translation.

(h) The arbitration panel shall have the authority to regulate the course and conduct of arbitral hearings but must notify the parties not less than five days before hearings. The panel may administer oaths and affirmations, if authorized under local law. The parties to the arbitration are entitled to be heard, to present oral or documentary relevant evidence material to the controversy, and to cross-examine witnesses appearing at the hearing. Immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator. The arbitrator may, with the consent of the parties, conduct all or part of the hearing by telephone, television, computer, or other electronic means, if each party has an opportunity to participate.

(i) The arbitration panel shall have the authority to award only compensatory damages in an amount no greater than the total value of the contract. The panel shall have no authority to award punitive, consequential, special or exemplary damages of any kind. The panel shall have no authority to award injunctive relief or specific performance. The award in an arbitration proceeding shall become final 30 days after it is served on all parties.

(j) The parties to the arbitration proceedings shall each bear their respective arbitration costs, including all attorney fees and expenses. The costs and fees of the arbitrator will be shared equally between the parties. Such costs and fees may not be reallocated or otherwise awarded by the arbitration tribunal in any award.

(k) No arbitrator or member of the arbitration panel may serve as counsel, advisor, witness or representative to any party in the arbitration proceedings, or have any official, financial, or personal conflict of interest with respect to the issues of controversy.

Article 21 – Language

21.1 For Contractors having their principal place of business in France, Belgium, Luxembourg and Tunisia, only the French version of the Contract is official and binding; the English language version is for information purposes only.

21.2 For Contractors having their principal place of business in any country not identified in article 21.1 above, only the English version of the Contract is official and binding; any translation of the Contract and these conditions that may be provided are for information purposes only.