WHEREAS UNOPS Has Been Appointed As the Fund Manager of the Three Diseases Fund (3DF)

Version 1.2, date: 22-Oct-2013

INTERNATIONAL PROCUREMENT ASSISTANCE AGREEMENT

WHEREAS the United Nations Office for Project Services (“UNOPS”) has been appointed as the Fund Manager of the Three Millennium Development Goal Fund (“3MDG”);

WHEREAS [Name of the Partner], (the “Organization”) is a beneficiary of a grant under the 3MDG Fund to carry out a programme in accordance of the terms and conditions of the grant agreement executed between UNOPS and the Organization;

WHEREAS part of the programme includes procurement of Pharmaceuticals / medical equipment / medical supplies / laboratory reagents / laboratory equipment / (“Supplies”);

WHEREAS the Organization has approached UNOPS to request its assistance for the Supplies to be procured internationally (“Procurement Services”); and

NOW THEREFORE the Parties agree as follows:

Article I a) This agreement is entered into between UNOPS and the Organization in contemplation of the grant agreement signed between UNOPS and the Organization on [Date start of contract] referenced [Contract reference number] (“Grant Agreement”) and all pertinent terms and conditions of said Grant Agreement (including but not limited to its Duration, Procurement, Assets and Equipment, and General Provisions clauses) are hereby incorporated in this Agreement by reference, unless explicitly stated otherwise. b) Nothing in this Agreement shall be construed as an amendment to any of the terms and conditions of said Grant Agreement.

Article II a) The Organization shall submit to UNOPS formal written requests detailing any Supplies that the Organization wishes UNOPS to procure (“Procurement Request”).

Each Procurement Request shall contain the following minimal information: 1. A detailed, clear and complete description of the Supplies sought 2. Confirmation of availability of funds 3. Quantity to be procured 4. Required delivery date 5. Delivery location 6. Estimated price 7. Any additional information (e.g. standardisation, preferred method of shipment, etc.). b) Any mistakes in the above information provided by the Organization and consequences thereof are the sole responsibility of the Organization. 1 Managed by UNOPS: Three Millennium Development Goal Fund, No. 12 (O) Pyi Thu Lane, 7 Mile, Mayangone Township, Yangon, Myanmar Tel:+95-1-657280 to 287 | Fax: +951-657279 | E-mail: [email protected] | Website: http:// www.3mdg.org Version 1.2, date: 22-Oct-2013

c) The Procurement Request shall be signed by an authorized representative of the Organization. d) UNOPS expressly reserves the right at its sole discretion to accept or reject any such Procurement Request. If a Procurement Request has been rejected UNOPS will provide written explanation as to the reasons for the rejection, if so requested by the Organization. e) Amendments, cancellation or change in quantities to a Procurement Request already accepted by UNOPS may be affected only with the prior written agreement of UNOPS. The Organization shall be responsible for any costs or penalties arising from such amendment, cancellation or change in quantities.

Article III a) Upon receipt of the Procurement Request, UNOPS will evaluate if the requirements are in line with the scope of work as agreed between the Organization and UNOPS in the Grant Agreement. b) Upon acceptance of such Procurement Request, UNOPS will issue a cost estimate to the Organization. UNOPS’ acceptance is conditional upon the Organization’s acceptance of the cost estimate as per sub-paragraph c) below. Such cost estimate will, as a rule, include the costs of Supplies, services, if any, delivery (freight), insurance and a contingency buffer (“Cost Estimate”). c) The Organization will, within 4 working days, indicate in writing its acceptance or refusal of the Cost Estimate. Upon receipt of written acceptance by the Organization of the Cost Estimate, UNOPS will procure the Supplies on behalf of the Organization for shipment consigned to UNOPS. d) Organizing customs clearance and transport to the final location are the responsibility of the Organization. UNOPS will provide the necessary documents for customs clearance and, if required, a so called Special Order (SO) which facilitates immediate clearance from the customs department. Where shipments contain commodities for more than one organization, UNOPS will take the lead and source for the clearing agent. When the clearing agent has been selected through a competitive process, all organisations involved will be informed about the fees they will be charged for clearing their part of the consignment. TAX exemption requests will be submitted by UNOPS to the Ministry of Health on behalf of the Organizations. Any costs resulting from delays in obtaining the TAX exemption from the national authorities, will be born by the respective Organizations. e) Supplies and services, if any, will be procured in accordance with the Financial Regulations and Rules and procurement procedures applicable to UNOPS and the guidelines as stated in the SOP for Procurement with grants from the Three Diseases Fund, the latter being available upon request from the Fund Managers’ Office or the Three Diseases Funds’ website: http://3mdgfund.org, as updated from time to time. To ensure that only qualified pharmaceuticals are procured, the following rules are mandatory in the UNOPS’ procurement process and thus are stated on all sourcing documents: . The pharmaceuticals must be produced in a WHO pre-qualified manufacturing site, or; . The pharmaceuticals must be products registered in countries with “stringent regulatory authorities” as defined by the Global Fund to Fight Aids, Tuberculosis and Malaria (GFATM), or;

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. The pharmaceuticals must be produced by companies, which meet the requirements as laid down by WHO in the Good Manufacturing Practices (GMP); this should either be verified or certificated. g) All Supplies will be delivered on CIP basis (INCOTERMS 2000 as per ICC) to the destination indicated in the Procurement Request, unless otherwise agreed to in writing. The transfer of risks from UNOPS to the Organization will be in accordance with the terms and conditions of the contract/purchase order issued by UNOPS in execution of a Procurement Request. The Parties acknowledge that where the procurement is on CIP terms, the risks shall pass from UNOPS to the Organization upon delivery of the Goods from the Supplier to the Carrier. h) Title in and to the Goods shall pass from the Supplier to the Organisation upon receipt by the Organization of the shipping documents in accordance with the contract/purchase order issued to the Supplier by UNOPS in execution of a Procurement Request.

Article IV a) UNOPS’ sole responsibility to the Organization shall be limited to the execution with reasonable diligence and efficiency of a Procurement Request accepted by UNOPS as herein provided. Beyond this commitment, UNOPS shall have no legal liability, express or implied, written or oral, either to the Organization or to any third party arising out of or in connection with its performance under this Agreement, including any contract/purchase order entered into in execution of a Procurement Request, and shall not be responsible for, inter alia, loss or damage to the Supplies or for delays or failures in shipment or delivery of the Supplies, value, freedom from fault or infringement of Supplies, product quality, efficiency, characteristics, suitability or usefulness, and third party services, except if due to UNOPS’ gross negligence or wilful misconduct. b) UNOPS shall under no circumstances be liable for any incidental, indirect or consequential damages arising from UNOPS’ performance under this Agreement. c) UNOPS accepts no liability for any third party claim arising out of or in connection with its performance under this Agreement, including contracts/purchase orders entered into in execution of a Procurement Request. The Organization shall indemnify, defend and hold and save harmless, at its own expense, UNOPS, its agents, servants and employees, from and against all and any demands, claims, suits or other causes of action and liability of any nature or kind, including costs and expenses, caused by, arising out of or in connection with the Supplies or the use thereof (including, but not limited to, demands, claims, suits, causes of action or liability based on products liability) or the performance by UNOPS under this Agreement, including any contract/purchase order entered into in execution of a Procurement Request. d) The majority of UNOPS contracts with suppliers and manufacturers contain a clause on liquidated damages allowing collection of lump sum damages from supplier / manufacturer for a delay in delivery. Wherever possible to execute and claim liquidated damages, the received amount will be deducted from the amounts withhold by UNOPS under the Grant Agreement with the Organization.

Article V a) All claims relating to any defects in quality or quantity of the Supplies or other non-conformity of Supplies, or for any loss or damage, shall be handled directly by and between the Organization and the manufacturer(s), supplier(s), seller(s), shipper(s), or insurer(s). To facilitate the above, in every

3 Managed by UNOPS: Three Millennium Development Goal Fund, No. 12 (O) Pyi Thu Lane, 7 Mile, Mayangone Township, Yangon, Myanmar Tel:+95-1-657280 to 287 | Fax: +951-657279 | E-mail: [email protected] | Website: http:// www.3mdg.org Version 1.2, date: 22-Oct-2013

PO/contract issued by UNOPS in execution of a Procurement Request to Suppliers on behalf of the Organization, UNOPS shall endeavour to include the following condition:

“The Supplier hereby explicitly agrees that all rights and remedies, such as but not limited to titles of ownership, warranties, entitlements, benefits relating to, based on and arising from or associated with the supplied drugs, goods, equipment and/or services under this Purchase Order are freely assigned, transferred, agreed upon and disposed between UNOPS and [insert name of Organization(s)] without requiring any further tacit or express acceptance, endorsement or acknowledgment by the Supplier.” b) In addition to the insurance of the shipment provided mentioned in Article III c), if applicable, UNOPS will make its best efforts to cause the manufacturer(s), supplier(s), seller(s) to provide, wherever possible, appropriate product liability insurance for the benefit of the Organization, to meet any claims arising from the use of the Supplies. c) To the extend legally possible, UNOPS will pass on to the Organization all details of such insurance and of any warranties received from the manufacturer/supplier, if any, regarding the quality of their products. UNOPS offers no warranty, express or implied, of any nature whatsoever, including warranties that the goods are merchantable or fit for any particular purpose.

Article VI a) The Organization hereby explicitly authorizes UNOPS to retain and use for the full payment of the Procurement Service provided in accordance to a Procurement Request the amount mentioned in the Cost Estimate from any amounts payable to the Organization under the Grant Agreement referred to in Article 5 – Grant Amounts and Payment. b) The Organization also explicitly recognizes that UNOPS will not be in a position to execute the Procurement Request if the Cost Estimate is equal or higher than the amounts, which have been reserved for procurement to be carried out by UNOPS in the Grant Agreement in article5 – Grant Amounts and Payments. In such an event, the parties will consult with each other. c) After shipment of all Supplies and or delivery of Services and recording of all expenses incurred, UNOPS will prepare a Financial Utilization Report to be forwarded to the Organization, covering the total cost of the Procurement Services provided by UNOPS and shall include any variation in cost, including penalties, if any, and credits due to decreases in price or quantities of Supplies or Services. The Financial Utilization Report will be expressed in United States Dollars and the United Nations operational rate of exchange shall apply to all currency conversions under this Agreement and all contracts entered into in execution of a Procurement Request. d) The Organization will be liable for price increases resulting from the difference between prices given in the Cost Estimate and actual prices to be paid by UNOPS to the selected supplier(s) or service provider(s), including variations in freight costs, as well as currency exchange fluctuations or other incidental costs. e) UNOPS is hereby explicitly authorized to retain and use for the full payment of the Procurement Service provided in accordance to a Procurement Request the balance between the Financial Utilization Report and the amount mentioned in the Cost Estimate, if any, from any amounts payable to the Organization under the Grant Agreement referred to in article 5 – Grant Amounts and Payments.

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Article VII

The Organization represents and warrants that:

(a) The Organization has full power and authority to enter into this Agreement and to consummate the transaction contemplated hereby;

(b) All consents, approval, authorizations and other requirements prescribed by any law, rule or regulation that must be obtained or satisfied by the Organization as are necessary for such Organization's execution and implementation of this Agreement or the performance of the terms hereof have been obtained and satisfied.

Article VIII a) This Agreement will become effective upon signature of both parties and will remain in force in accordance with article 3- Duration of this Agreement of the Grant Agreement, including any amendments thereto, unless earlier terminated in accordance with Annex F - General Conditions for Grant Support Agreements, article 15 – Termination of the Grant Agreement. b) Any controversy or claim arising out of, or in connection with this Agreement or any breach thereof, shall unless it is settled by direct negotiation, be settled in accordance with the UNCITRAL Arbitration Rules as at present in force. Where, in the course of such direct negotiation referred to above, the parties wish to seek an amicable settlement of such dispute, controversy or claim by conciliation, the conciliation shall take place in accordance with the UNCITRAL Conciliation Rules as at present in force. c) The parties shall be bound by any arbitration award rendered as a result of such arbitration as the final adjudication of any such controversy or claim. d) Nothing in or relating to this Agreement, including but not limited to any contract entered into in execution of a procurement request, shall be deemed a waiver, express or implied, of any privileges and immunities of the United Nations and UNOPS, and the privileges and immunities of the Organization, and no provision of this agreement shall be interpreted or applied in a manner or to an extend inconsistent with such privileges and immunities.

For and on behalf of UNOPS: For and on behalf of the Organization:

Signature ______

Name ______

Title ______

Date ______

5 Managed by UNOPS: Three Millennium Development Goal Fund, No. 12 (O) Pyi Thu Lane, 7 Mile, Mayangone Township, Yangon, Myanmar Tel:+95-1-657280 to 287 | Fax: +951-657279 | E-mail: [email protected] | Website: http:// www.3mdg.org Version 1.2, date: 22-Oct-2013