1. Contract These General Purchasing Conditions (“Conditions”) form part of the Purchase Order (“PO”) affixed hereto and applicable frame agreement. The PO (including the Conditions (“including” shall mean including without limitation throughout this document)) and any referenced specifications and other documents relating to the transaction described in the PO constitute the entire agreement between the entity designated to be a buyer (“Buyer”) in the PO and Seller, whose details are set out in the PO (together the “Parties”), and replace and supersede all other prior oral and written agreements between the Parties in respect of said transaction. Seller acknowledges that it has received these Conditions in Buyer’s Seller questionnaire and/or other transaction-related documents, and is aware of all provisions herein. By its agreement in a questionnaire, or by confirming the PO, supplying any goods or services (collectively the “Items”) set forth in the PO or invoicing the same Seller expressly agrees that the Conditions govern the transaction, including the indemnities set forth in clause 12, unless expressly modified by the PO or otherwise in writing by the Parties. Seller’s standard service terms attached on order confirmation or the like shall be overruled by these Conditions.
2. Definitions In the PO: “Affiliate” means in relation to a party, any entity Controlled, directly or indirectly, by that party, any entity that Controls, directly or indirectly, that party or any entity under the same, direct or indirect, Control as that party; “Buyer’s Client/Client” means the company, if any, for which Buyer at any time is performing services using the goods or services covered by the PO, its co-venturers, its contractors and subcontractors (of any tier) and its and their respective Personnel; “Claims” means all claims, actions, demands, losses, damages, liabilities, awards, costs and expenses including legal expenses, and charges, fines and/or penalties levied or imposed by any person or body having jurisdiction and power to do so; “Control” means the power of any party to secure that the affairs of an undertaking are conducted in accordance with the wishes of that party: (i) by means of the holding of shares or the possession of voting power in, or in relation to, such undertaking; or (ii) by virtue of any power conferred by the law, constitutional documents, agreements or arrangements regulating or relating to such undertaking, and Controls and Controlled shall be construed accordingly; “Group” means, in relation to a Party, its contractors and subcontractors (of any tier), its and their respective Affiliates and its and their Personnel, provided that: (i) Seller and its subcontractors shall not be members of Buyer’s Group; and (ii) Buyer’s Client shall be part of Buyer’s Group if it has provided an indemnity in favour of Buyer and its Group in substantially the same form as the indemnity set out in clause 12(a); and “Personnel” means directors, officers and employees, agency staff, agents and invitees and other personnel retained by or engaged in business for the benefit of a party.
3. Price, Invoicing, Payment and Taxes The price of the Items covered by the PO shall be the price shown for each of such Items on the face of the PO or in a price list attached to these Conditions. Following Delivery/performance, Seller shall invoice the goods and services in duplicate and include all necessary references to the specific Items and Buyer’s references including the PO number. Payment shall be due and payable current month + 60 days from receipt of a correct invoice, and by the means agreed in writing by the Parties. Buyer may withhold from any payment any amount genuinely in dispute and any sums due to Buyer from Seller hereunder. Buyer shall pay interest on all overdue sums at the Bank of England Base Rate (at the time payment is due) plus 2%. Prices quoted for Items supplied under the PO shall include sales and any other transaction taxes unless otherwise quoted by Seller.
4. Delivery of goods, inspection, acceptance/rejection Seller shall deliver the goods DDP (Incoterms 2000) at the delivery point and on the date stated in the PO, together with all necessary customs invoices and delivery notes, advice notes, bills of lading and other documents ordinarily accompanying such goods (“Deliver(y)”). Any failure or delay in Delivery, including partial delivery (unless otherwise agreed in writing), shall be a material breach of Seller’s duties. Seller shall immediately notify Buyer in writing of any anticipated delay or deviation involving the goods. Buyer shall upon receipt of any goods perform a reasonable inspection of them without undue delay. Buyer may, at Seller’s risk and expense, return any goods not complying with those described in the PO and these Conditions.
5. Packing, transport and marking Seller shall pack and secure transport of the goods in ways that are safe, secure and suitable for the nature of the goods. Buyer will pay no charge for packing, cartage or crating. Seller shall ensure the goods’ packing and related delivery documents are marked clearly with Buyer’s name, address and order number, the place of delivery and, if relevant, the consignee’s name, address and other contact details.
6. Title and risk Without prejudice to Buyer’s rights and remedies herein, title and risk of the goods pass to Buyer latest on Delivery, and Seller remains fully responsible for all goods until Delivery. Seller remains responsible for all goods leased to Buyer.
7. Performance of services Seller shall perform its services as set forth in the PO. If performing services on Buyer’s offshore facility (“Facility”), Buyer shall provide offshore transport and food and lodging whilst offshore for Seller’s employees and Seller shall co-operate with other parties working onboard.
8. HSSE and ethics Seller’s Group is responsible for the safe delivery of the Items and shall give the highest priority to safety in order to avoid injury to any person and/or damage to any property. Seller must strive for continuous improvement of health, safety, security and environmental performance and ensure that management of health, safety, security and environment is an integral and visible part of Seller’s work planning and execution processes. Seller shall monitor and evaluate its safety performance, as a minimum based on fatalities and number of Lost Time Injuries (LTIs), and take such actions as are required or appropriate to rectify and improve its overall safety performance and establish and maintain a casual/emergency response plan to deal with unforeseen events, such as but not limited to fire and explosion, and carry out periodical drills with the involvement of relevant employees, servants, agents and subcontractors. Seller shall ensure that both Seller and its subcontractors shall comply with any applicable local or international health, safety and environmental Legislation and any other requirements referred to by Buyer as may be varied or supplemented from time to time. Seller shall ensure that its hazardous waste (including such waste that Seller is required to handle) is being collected, stored and disposed or recycled in an environmentally sound manner and shall further establish programs to monitor green house gas emissions and waste amounts from its facility. Seller undertakes to show consideration for the environment in its business, e.g. to use its best endeavour to ensure the usage of recyclable materials in producing and packing the goods, and that all materials used in its production shall be of the environmental viable kind ensuring that the least impact on the environment when selecting materials for the Items from subsuppliers. Seller shall constantly strive to avoid the use of scarce resources in all areas of their business including, but not limited to, administration, production, packaging, transport, etc. This includes implementing procedures to ensure that wood from high conservation forests is avoided whenever possible. Seller shall not directly/indirectly give anything of value to public employees/officials (including in government controlled companies), to obtain any business advantage regarding this Contract.
9. Compliance with Legislation Seller shall comply with all Legislation applicable to delivery of the Items, including United States and European Union (“U.S. or EU”) regulations and controls of export and re-export of goods, software and technology (including as in regards to any embargoed countries). To the extent any Items or parts of Items (including software and technology) supplied by Seller to Buyer are subject to economic sanctions or export control laws and regulations of the U.S. or EU, Seller shall, upon Buyer’s placement of a request for quotation or a PO, whichever is the earliest, or in case of defective Items at the time of re-Delivery, without delay provide in a form satisfactory to Buyer a certification of the specific export classification of each of the Items and the country of origin. Seller shall provide the certification of specific US export classification of relevant items, including ECCN numbers. If Items to be supplied by Seller under a PO are subject to U.S. or EU export control Legislation, Seller must include in its certification a complete list of the countries where the Items may not be exported or re-exported without prior specific export/re-export licensing from relevant government authorities. Seller also affirms that the Items comply with 1) EU directives, in effect at the time of Delivery or in case of defective Items at time of re-Delivery. Seller shall furnish Buyer with a declaration of conformity with the relevant EU directives and documentation shall be delivered to Buyer latest at the time of Delivery/re-Delivery, 2) where applicable, the requirements of the Marine Equipment Directive 96/98/EC (“Directive”) as amended and be marked as such. Items conforming to any of the Mutual Recognition Agreements associated with the Directive will be likewise accepted. All costs incurred in complying with this clause 9 shall be for the sole account of Seller and Seller shall indemnify and hold Buyer harmless from all fines, penalties and all associated expenses arising out of or resulting from the violation by Seller of any of its obligations in this clause 9. Buyer shall have the right, to appoint at its own cost, charge and expense a firm of chartered accountants to audit and verify Seller’s compliance with this clause 9.
10. Warranties and undertakings Seller warrants and undertakes that: (a) the goods shall be new, of good quality and workmanship, free from defects and fit for the intended purposes set forth in the PO, including complying with any specifications; (b) it shall perform the services with all due care and diligence, in accordance with the PO and good international industry practices; and (c) all goods and services shall comply with the foregoing for 12 months from installation or performance or 18 months after Delivery, whichever is the earlier and repair/replacement or re-performance shall likewise be prolonged and warranted for 12 months, provided the total warranty period shall be 24 months from Delivery/performance.
11. Remedies (a) Seller’s sole remedies for Buyer’s material breach of its duties herein shall be: (i) to refuse subsequent supplies of goods unless such material breach is the subject of a dispute between the Parties; or (ii) termination of the PO, without prejudice to its right to claim damages. (b) Without prejudice to Buyer’s remedies for Seller’s breach of any other terms of the PO, Buyer’s sole remedies for Seller’s breach of clause 10 shall be Seller’s replacement and/or repair at no additional cost of defective goods or re-performance of defective services and if Seller has not begun such remedies within 48 hours of notice thereof by Buyer, or having begun, has not cured such default or is not making continuous and substantial progress towards cure within 5 working days thereafter, Buyer may itself or through a third party effect such repair, replacement or re-performance at Seller’s expense. In case of Seller’s material breach of any duty, Buyer may in addition terminate the PO without notice at the end of such 5-day period. Such termination is without prejudice to Buyer’s right to claim damages. Seller’s total liability under this clause 11(b) is the purchase price.
12. Indemnities The provisions of this clause 12 apply if Seller’s property or personnel are on board an offshore Facility at any time: (a) Each Party shall defend, indemnify and hold harmless the other Party and its Group from and against all Claims arising from or related to the PO in respect of: (i) loss or damage to the indemnifying Party and its Group’s property, (ii) any personal injury (any form of illness, disease or disorder, whether mental, physical or otherwise) to or death of their Personnel, (iii) their consequential loss and loss of product, profit or revenue, irrespective as regards (i) through (iii), above, of the cause thereof, including any degree of negligence or breach of duty (whether statutory or otherwise) of the indemnified party, and in each case arising from, relating to or in connection with the performance or non-performance of the PO, and (iv) Claims by a third party caused by the indemnifying Party’s negligence or breach of any duty. The indemnities are full and primary notwithstanding that Seller must carry insurance. (b) If Seller or any of its subcontractors shall board the Facility, or if any of Buyer’s other contractual partners shall be in contact with Seller’s equipment or Personnel, Seller and its subcontractors shall upon Buyer’s request each execute Buyer’s Hold Harmless Agreement.
13. Insurance Seller shall have and maintain insurance coverage in accordance with good international industry practices, including Commercial General Liability Insurance including Contractual liability, All Risks cover for all Items provided by Seller, Comprehensive Automobile Liability Insurance, and Workmen’s Compensation/Employers’ Liability, at its expense with a reputable insurance company, properly safeguarding Seller against its liability hereunder. Seller shall furnish to Buyer insurance certificates confirming such insurance, that the premiums have been paid, and specifying the names of the insurers, policy numbers and expiration dates. All such insurance policies shall provide that, in case of cancellation, Buyer shall receive written notice thereof at least 14 days before the effective date of cancellation. Seller shall ensure that its insurers waive all rights of recourse, including in particular any rights of subrogation, against Buyer and its Group, and where the context requires, Buyer’s Client, in accordance with the PO.
14. Patent Protection Seller shall defend, indemnify and hold harmless Buyer from and against all Claims resulting from any proceeding brought against Buyer or its Affiliates or Client(s) based on a claim that any goods, or their use in the manner intended by Seller, infringe any patent or other intellectual property right. Seller shall pay any judgment awarded as a result of any such proceeding against Buyer or its Affiliates or Clients. If the use of any such goods as intended by Seller is prohibited, Seller shall, at its own expense, either obtain for Buyer and its Affiliates and Clients the right to continue using such item, replace it with a non-infringing item, modify it so it becomes non-infringing, or remove such item and refund the purchase price and all transportation and/or installation costs.
15. Confidentiality All technical, economic or other information, whether in written, oral or visual form, disclosed by a Party (“Disclosing Party”) to another Party (“Receiving Party”) in relation to the PO/Facility (“Confidential Information”) shall remain or become property of the Disclosing Party. Such Confidential Information and Buyer’s identity shall not be reproduced, given or disclosed to any third party without Disclosing Party’s prior written consent and Receiving Party shall only use the Confidential Information for the purposes of the PO. Receiving Party shall limit internal dissemination of Confidential Information to only those individuals whose duties justify their need to know such information. All Confidential Information shall be returned to the Disclosing Party upon completion of the PO provided that Buyer may at all times use the same for its operations.
16. Assignment, amendment or cancellation Buyer may freely assign the PO, including its rights and obligations therein, to an Affiliate or its Client. The PO is not assignable by Seller without the prior written consent of Buyer. No amendment to the PO shall be binding unless agreed to in writing by the Parties. The PO may be amended without the consent of any third party or any member of either Party’s Group even if the right of such third party or member of either Party’s Group to enforce a term of the PO may be varied or extinguished. Buyer may cancel the PO for any reason whatsoever on 30 days’ written notice to Seller, and shall compensate Seller’s documented costs arising therefore that could not reasonably be avoided.
17. Law, jurisdiction and disputes The laws of the country, or applicable state or province where Buyer has its registered address shall exclusively govern the PO and all relationships and related transactions contemplated between the Parties, and all disputes arising from or related to the same, including the PO, to the exclusion of CISG, and the courts of competent jurisdiction in that country (or state or province, as applicable) shall be the exclusive venue for all dispute resolution. Said law governs all aspects of goods delivered hereunder in respect of the form and time for inspection and notification thereof, and any refusal of goods.
18. Force Majeure A Party shall not be responsible for any failure to fulfil any term or condition of the PO caused by an unforeseen, extraordinary and serious event (but not including economic hardship or adverse weather) not within its control and not caused by its default or error. If such event continues for 90 days, Company may terminate the PO.
19. General Failure of either Party to enforce any of the part of the PO shall not prevent a subsequent enforcement of such part or be deemed a waiver of any subsequent breach. Should any provision of the PO, or portion thereof, be unenforceable or in conflict with governing laws, the validity of the remaining provisions shall not be affected by such unenforceability, and the PO shall be construed as if such provisions were not contained herein. In entering into this PO Seller is acting as an independent contractor and not as an agent, partner or employee of Buyer.