Enpro Subsea - Purchase T's and C's
Enpro Subsea Limited
Standard Terms & Conditions of Purchase of Goods, Services and Hire of Equipment V2
These standard terms and conditions apply to every purchase order for the purchase of goods and/or services and/or hire of equipment by Enpro Subsea Limited to the exclusion of any other terms and conditions unless specifically agreed otherwise in writing Enpro Subsea Limited.
1 Definitions and Terminology
1.1 In these Conditions:
"ABC Programme" means an anti-bribery and corruption policy and any related procedures as amended, varied or supplemented from time to time, which (without limitation) may include policies, procedures and controls relating to recording of financial transactions; anti-bribery and corruption risk assessment and mitigation; training of personnel; whistle blowing facilities; due diligence on third-party engagements/Contracts; gifts and hospitality, promotional expenditures, sponsorship and charitable donations; and promoting and monitoring compliance.
"Affiliate" means any subsidiary or parent or holding company of any company or any other subsidiary of such parent or holding company. For the purpose of this definition, "subsidiary" and "holding company" shall have the meanings assigned to them under Section 1159 and Schedule 6 of the Companies Act 2006, and a company shall be treated, for the purposes only of the membership requirement contained in Subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of: (a) another person (or its nominee), whether by way of security or in connection with the taking of security; or (b) its nominee;
"Applicable Anti-Bribery Laws" means any laws, regulations and other legally binding measures relating to bribery, corruption or similar activities of (i) the United Kingdom, including without limitation the Bribery Act 2010; (ii) the United States of America including, to the extent applicable, the Foreign Corrupt Practices Act 1977; and (iii) any country or countries in which any of the obligations of the Purchase Order are to be or are performed;
"Claims" means any claim of every kind and nature, demand, cause of action, proceedings, judgement, award, loss, costs (including reasonable legal fees and sums paid by way of settlement or compromise), expense, liability, penalty, fine, and damages;
"Competent Authority" means (i) any person having legal, executive and/or regulatory authority and/or enforcement powers (including any public body or authority responsible for the investigation and/or prosecution of criminal offences) over either or both of the Parties or any of their Affiliates providing services in connection with this Contract; and/or (ii) any court of law or tribunal with jurisdiction over either or both of the Parties or any of their Affiliates providing services in connection with the Contract.
"Conditions" means these standard terms and conditions;
"Consequential Loss" means:
(i) indirect or consequential loss under English law; and
(ii) loss and/or deferral of production, loss of product, loss of use (including loss of use or the cost of use of and increased expenditure related to property, equipment, materials and services including those provided by the Vendor or Purchaser, as applicable, or third parties), loss of revenue, loss of bargain, loss of profit or anticipated profit (if any), in each case whether direct or indirect to the extent that these are not included in (i) and whether or not foreseeable at the start of the Purchase Order;
"Email" means electronic mail but not other forms of electronic communication;
"Equipment" means the equipment (if any) to be hired by the Purchaser from the Vendor in accordance with the Purchase Order together with any component parts and all extras, spare parts and accessorises forming part thereof;
"Export Controls" shall have the meaning given to it in Clause 7.4 of the Conditions;
"Force Majeure" shall have the meaning given to it in Clause 13;
"Goods" means the goods (if any) to be sold by the Vendor to the Purchaser in accordance with the Purchase Order, including but not limited to manuals, operating instructions, reports and drawings;
"Group" shall mean Vendor Group or Purchaser Group as the context dictates.
"Intellectual Property" means and intellectual property rights hereunder, all patents, utility models, trade marks, service marks or rights in business and trade names, rights in domain names, whether or not registered or capable of registration, registered designs, design rights, copyrights, database rights, the right to apply for all applications for the protection of any of the preceding rights, together with the rights in inventions, processes, software, rights in know‑how, trade or business secrets, confidential information or any process or any other similar or corresponding rights or assets;
"Parties" shall mean the Purchaser and the Vendor and "Party" shall be construed to mean either one of them;
"Purchase Order" means the purchase order, of which these Conditions form part, issued in Writing or Email to Vendor by Purchaser In these Conditions;
"Purchaser" means Enpro Subsea Limited, registered under the laws of Scotland; CRN SC398784 having its registered office c/o Hunting Energy Services, Badentoy Avenue, Badentoy Industrial Estate, Portlethen, Aberdeen, Scotland, AB124YB and principal place of business at Arnhall Business Park, 15 Abercrombie Court, Westhill, Aberdeen, Scotland, AB32 6FE;
"Purchaser Group" means the Purchaser, its contractors of any tier, its and their respective Affiliates and its and their respective directors, officers and employees (including agency personnel), but shall not include any member of the Vendor Group;
"Services" means the services (if any) to be supplied by the Vendor to the Purchaser in accordance with the Purchase Order;
"Specification" means the specification relating to the Goods and/or Equipment as detailed in the Purchase Order;
"Vendor" means the person to whom the Purchase Order is issued, and who has agreed to supply the Goods, hire the Equipment or perform the Services as applicable;
"Vendor Group" means the Vendor, its other contractors of any tier, its and their respective Affiliates and its and their respective directors, officers and employees (including agency personnel) but shall not include any member of the Purchaser Group;
"Writing" and any similar expression includes Email unless otherwise stated herein.
1.2 In these Conditions, the following rules apply:
1.2.1 a reference in these Conditions to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted, extended or replaced at the relevant time;
1.2.2 words in the singular shall include the plural and vice versa;
1.2.3 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 the headings in these Conditions are for convenience only and shall not affect their interpretation.
2.1 Any purchases of Goods hire of Equipment and/or for Services shall be made by Purchaser issuing a Purchase Order. All offers and cost estimates of the Vendor shall be made free of charge and without obligation for the Purchaser.
2.2 The Purchase Order constitutes the entire agreement between the parties hereto with respect to the Goods and/or Equipment and/or Services and supersedes all prior negotiations, representations, agreements or undertakings related to the Purchase Order, either written or oral. If the Vendor fails to acknowledge the Purchase Order, it shall be deemed to have accepted the Purchaser Order as soon as it commences to perform any of its obligations under the Purchase Order.
2.3 These Conditions apply to the Purchase Order to the exclusion of any other terms that the Vendor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No conditions or stipulations in or attached to the Vendor's acceptance or other document, which are inconsistent with the Conditions or which purport to add to or modify them in any way, shall have any effect unless expressly and specifically accepted in Writing by the Purchaser.
2.4 The Purchaser's employees' or agents' are not authorised to make any representations concerning the Purchase Order unless confirmed by an authorised representative of the Purchaser in Writing or by Email. In entering into the Purchase Order the Vendor acknowledges that it does not rely on and waives any claims for breach of any such representations which are not so confirmed.
2.5 The Vendor shall before start of production of the Goods, procurement of the Equipment and/or Services, use his professional skills to search for possible faults and omission in the Purchase Order, including but not limited to drawings, materials and designs provided by the Purchaser. The Vendor shall immediately notify the Purchaser in writing if such faults or omissions are discovered, and shall be liable for any costs incurred by Purchaser due to Vendors failure to do so.
3.1 The Purchaser has the right to make any variation to the Purchase Order that may, in its opinion, be necessary. The Purchaser shall notify the Vendor in Writing of any variation and the Vendor shall supply the Goods and/or Equipment and/or Services in accordance with the provisions of the Purchase Order as so varied. No other variations to the Purchase Order shall be effective unless evidenced in Writing and signed by the Purchaser. The Vendor shall confirm effect of a variation within seven (7) days of following receipt, otherwise Vendor shall be deemed to have accepted that the variation does not have any effect in respect of price or time of delivery, performance of Services or any other effects.
3.2 Purchaser's variation to the Purchase Order shall promptly be implemented by the Vendor, even if the Parties have not reached a final agreement concerning the effects of variation on cost impact, time of delivery, technical specification or any other modification following from Purchaser's request for a variation.
3.3 Vendor shall not be entitled to compensation for any work related to preparation of estimates connected to variation orders, or any other administrative work connected therewith.
4 Price and Payment
4.1 The price of the Goods and/or Equipment and/or Services shall be as specified in the Purchase Order and shall be fixed and firm and not subject to escalation. In consideration of the complete and satisfactory performance of the Purchase Order, the Vendor will be reimbursed by the Purchaser in accordance with the following:
4.2 All prices contemplated under the Purchaser Order are exclusive of Value Added Tax ("VAT"), which shall be charged by and accounted to the relevant tax authority by the relevant party as is required under prevailing VAT legislation. Furthermore, the Vendor will comply with all applicable invoicing requirements regarding the charging and accounting of VAT.
4.3 All prices contemplated under the Purchaser Order are inclusive of charges for preparation, packing, boxing, crating, freight or special service and insurance.
4.4 Following delivery of the Goods and/or completion of the Services and/or on any of a daily, weekly, monthly or yearly basis for the hire of the Equipment as specified in the Purchase Order, the Vendor shall submit to the Purchaser an invoice for the price of the Goods and/or Equipment and/or Services. Each invoice shall:
4.4.1 bear the Purchase Order number and Purchaser's part number; and
4.4.2 be accompanied by supporting evidence, where applicable.
The Vendor understands and acknowledges that failure to strictly comply with the requirements of this Clause 4.4 may result in delayed payment of the Vendor's invoices.
4.5 Except where the Purchaser disputes any invoice (in whole or in part), payment of invoices submitted to the Purchaser shall be made within forty five (45) days from receipt by the Purchaser. Any invoice not complying with Clause 4.4 may be returned by the Purchaser to the Vendor and payment terms on such returned invoices shall be suspended until such time as a revised invoice is submitted. Payment of an invoice by the Purchaser shall be without prejudice to its right in the future to dispute any part of an invoice already paid.
4.6 If the Purchaser queries or disputes any items on any invoice in whole or in part or if the invoice is prepared or submitted incorrectly in any respect, the Purchaser shall notify the Vendor of such query or dispute and request the Vendor issue a credit note for the unaccepted part or whole of the invoice as applicable, and Vendor shall issue such credit note. Upon receipt of such credit note the Purchaser shall pay only the undisputed part of the disputed invoice.
4.7 The forty five (45) day period referred to in Clause 4.5 hereof shall be suspended at the time of notification by the Purchaser to the Vendor of the dispute and shall recommence in respect of the undisputed portion of the invoice on the date of receipt by the Purchaser of the credit note. At the earliest possible opportunity the Purchaser and the Vendor shall endeavour to resolve invoicing disputes and agree adjustments to invoices as soon as possible thereafter.
4.8 On settlement of any dispute the Vendor shall submit an invoice for the sums due and the Purchaser shall make the appropriate payment in accordance with the foregoing.
4.9 The payment of an individual invoice shall not constitute a settlement of a dispute or otherwise waive or affect the rights of the parties hereunder.
4.10 From any sum due to Vendor under the Purchase Order, Purchaser may set off or deduct any amount due by Vendor to Purchaser. Vendor shall promptly reimburse any sum due to Purchaser under the Purchase Order.
5.1 The Goods and/or Equipment shall be marked in accordance with Purchaser's instructions and any applicable laws or regulations or any requirements of the courier delivering the Goods and/or Equipment and shall be properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport or as instructed by the Purchaser.
5.2 No Goods and/or Equipment shall be accepted until Purchaser has received from Vendor all agreed and properly approved documentation.
6 Drawings, Manuals, etc
6.1 Vendor shall without additional cost to Purchaser supply all required drawings, specifications, and other relevant technical information including (whether needed for information only, approval or final record), operating instructions, maintenance manuals, mill certificates giving chemical compositions and mechanical properties, fabrication reports at times and in numbers of copies as specified on the Purchase Order. Purchaser in approving Vendor's drawings does not in any way assume responsibility for their accuracy.
7 Inspection, Testing and Export
7.1 All inspections and tests required by good industry and engineering practice shall be carried out in addition to those specified in the Purchase Order by the Vendor at its own cost and copies of all test reports, test data etc. in the number specified in the Purchase Order shall be forwarded by the Vendor to the Purchaser. The Purchaser is entitled to be present at such inspections and tests and the Vendor shall give the Purchaser at least seven (7) days notice in Writing of such tests including the time and location. The Purchaser reserves the right to inspect the Goods and/or Equipment and any part thereof (including those of sub-contractors) at any time after the date of the Purchase Order. Any such inspection or failure to inspect by the Purchaser shall not relieve the Vendor of any responsibility or liability with respect to such Goods and/or Equipment nor shall such be interpreted in any way to imply acceptance thereof by the Purchaser.
7.2 If as a result of any inspection or test under Clause 7.1, the Purchaser is of the reasonable opinion that the Goods and/or Equipment do not comply with the requirements of Clause 8 or are unlikely on completion of manufacture or processing so to comply, Purchaser shall have the right at its option to require Vendor at its own cost to repair or replace the faulty Goods and/or Equipment or to reject the Goods and/or Equipment in whole or in part. Any repaired or replacement Goods and/or Equipment shall comply with requirements of Clause 8 and shall be delivered in accordance with Clause 5. In the case of rejection, Vendor shall forthwith refund to Purchaser all sums paid in respect of the rejected Goods and/or Equipment. This Clause 7.2 shall not limit any other rights Purchaser may have in connection with the Goods and/or Equipment or any other remedy which Purchaser may have against Vendor for any failure by Vendor to comply with any provision of the Purchase Order.
7.3 Unless otherwise specified in the Purchase Order, it is the Vendor's responsibility to comply with applicable export control regulations for Goods and/or Equipment shipped from and to the United Kingdom. The Vendor shall be responsible for and shall save, indemnify, defend and hold harmless the Purchaser from and against all Claims in connection with any failure by the Vendor to comply with applicable export control regulations arising from, relating to or in connection with the Purchase Order.
7.4 The Vendor represents that it is knowledgeable and has expertise regarding all export control laws, regulations, procedures, international sanctions, embargoes and restrictions, prohibited party lists and international shipping practices applicable to the Purchase Order, including but not limited to the laws of the United Kingdom and the laws of the United States of America ("Export Controls"), and will provide the Purchaser with all information and documentation relating to the Goods and/or Equipment which is required to comply with such Export Controls.
8 Warranty and Defects Correction
8.1 The Vendor shall carry out all of its obligations under the Purchase Order with all due care and diligence and with the level of skill to be expected of a reputable person with experience in the provision of the types of Goods and/or Equipment and/or Services to be carried out under the Purchase Order. The Vendor warrants that any personnel provided to perform the Services shall be trained, skilled, experienced and qualified for the part of the Services they will be required to perform. The Vendor warrants that the Goods and/or Equipment will meet the Purchaser's requirements with regard to quality, fitness for purpose, quantity and/or Specifications which are set out in the Purchase Order and the Vendor warrants that the Goods and/or Equipment are of satisfactory quality and workmanship, will be free from defects, fit for their ordinary purpose and will be fully certified, will meet all relevant government standards, will have been tested and will be in full working order. The Goods and/or Equipment are ordered by the Purchaser in reliance on each and all of the warranties and guarantees specified herein or implied by law and usage of trade.
8.2 In the event the Purchaser notifies the Vendor of any defects in the Goods during the first twelve (12) months of use or twenty four (24) months from the date of delivery to the Purchaser, whichever is the longer, the Vendor shall without limitation to the Purchaser's other legal rights, carry out all work necessary to repair any defects in the Goods. The Vendor shall warrant any re-work for a further period of twelve (12) months from the date of repair. If the defect cannot be corrected, the Vendor shall promptly replace the Goods, free of charge, or at the Purchaser's option, remove the Goods and refund the full price paid under Clause 4 above. Further the Vendor shall warrant for a period of twelve (12) months any replacement part or parts.
8.3 In the event the Purchaser notifies the Vendor of any failure or breakdown of any Equipment, the Vendor shall, upon request of the Purchaser, immediately provide its personnel to repair such failure or breakdown. If such repair cannot be carried out within 24 hours of the time and date of notification, or such other time which does not hinder the continuance of Purchaser's operations, then Vendor shall immediately replace the Equipment, free of charge, or at the Purchaser's option, remove the Equipment and refund the full price paid under Clause 4 above. In accordance with Clause 11.6 no payment for hire of Equipment shall be due by Purchaser to Vendor such period of repair.
8.4 In the event the Purchaser notifies the Vendor of any defects in the Services during performance of the services or twenty four (24) months from the date of completion of the Services, the Vendor shall without limitation to the Purchaser's other legal rights, carry out all work necessary to repair any defects in the Services. The Vendor shall warrant any re-work for a further period of twelve (12) months from the date of repair. If the defect cannot be corrected, the Vendor shall promptly refund the full price paid under Clause 4 above.
8.5 This Clause 8 shall survive termination of the Purchase Order for any reason.
9 Vendor's Default
9.1 Time is of the essence of the Vendor's obligations under the Purchase Order. Failure by the Vendor to complete delivery of any of the Goods and/or Equipment and/or to complete the Services within the time specified herein, shall relieve the Purchaser, if it so chooses and without prejudice to any of its other rights or remedies, of any obligation to accept and pay for the Goods and/or Equipment and/or Services. If no time is specified, the Purchaser shall have the right prior to delivery, to give written notice to the Vendor, specifying a date for delivery.
9.2 If a) at any time on request, the Vendor fails to give assurance of due performance satisfactory to the Purchaser, or; b) any of the Goods and/or Equipment and/or Services do not conform with the Specification or are in some way deficient or defective and the Vendor fails to rectify the non-conformance, deficiency or defect, then the Purchaser shall be entitled to terminate the Purchase Order in whole or in part, as to the Goods and/or Equipment and/or Services then not completed, without liability for any payment for such termination and the Vendor shall reimburse the Purchaser for reasonable costs incurred as a result of having such Goods and/or Equipment and/or Services satisfactorily completed or supplied by others.
10 Liquidated Damages
10.1 Should Vendor fail to comply, for all the Goods and/or Equipment and/or Services or part thereof, with the time(s) specified or such extended time(s) for delivery or completion as may be allowed in accordance with the Purchase Order, Purchaser shall be entitled to recover from Vendor by way of compensation or reimbursement at Purchaser's sole option, damages for such failure liquidated in the sum, or percentage of the price, specified on the Purchase Order. In the absence of such specification on liquidated damages, the Vendor shall be obliged to pay damages equal to 1% of the Contract Price per day of delay of delivery, limited to a maximum of 15% of the Contract Price. The terms of this Clause shall not limit any other rights or remedies of Purchaser under the Purchase Order or at law.
11 Hire of Equipment
11.1 Equipment is and shall at all times be and remain the sole and exclusive property of the Vendor and the Purchaser is not hereby granted any right or interest therein save the right to use the same under the Purchase Order.
11.2 All Equipment to be used in hazardous areas shall be properly rated and fit for the area in which it is intended to be used and shall be clearly identified as to its rating.
11.3 Vendor shall maintain all certification of its Equipment throughout the duration of the hire of the Equipment and copies of all inspection certificates shall be provided to Purchaser prior to or at the date of commencement of the period of hire.
11.4 Vendor shall provide slings, baskets or containers for its Equipment. All such slings, baskets or containers shall be accompanied by copies of applicable inspection certificates.
11.5 Where Equipment requires periodic maintenance, Vendor shall provide its personnel to carry out such maintenance at a time or times to be agreed with the Purchaser.
11.6 Any reconditioning, redress and/or repair of Equipment necessary to return the Equipment to the same condition it possessed prior to the commencement of the period of hire, fair wear and tear excepted, shall be carried out by the Vendor or its agents' at the Vendor's cost, unless otherwise specifically stated in the Purchase Order as being to the cost of the Purchaser. Reconditioning, redress and/or repair to be carried out at the cost of Purchaser shall only be carried out with the prior written consent of the Purchaser following agreement as to the extent and cost of necessary reconditioning, redress or repair. No payment for hire of Equipment shall be due by Purchaser to Vendor during any period of reconditioning, redress and/or repair.
11.7 If any Equipment is lost or is destroyed or damaged beyond repair for any reason including due to the sole, concurrent or contributory negligence of Purchaser its officers, directors, employees, servants or agents, then the Purchaser may terminate the hiring of the Equipment.
11.8 If the Equipment is lost or damaged beyond repair whilst in the hole below the rotary table then, except to the extent of fair wear and tear or where such loss or damage is caused by the negligence of the Vendor, the Purchaser shall reimburse the Vendor for the documented costs of replacing such Equipment at the replacement costs of such Equipment less depreciation calculated at the rate of 2% per calendar month, or such other rate as may be stated in the Purchase Order, from the date on which the lost or damaged Equipment was first used. Where Equipment is subject to renewal and refurbishment of component parts after each usage then depreciation shall be calculated from the date such Equipment was first used since its last documented renewal or refurbishment. The replacement costs of such Equipment shall be specified in the Purchase Order.
11.9 The Vendor shall, unless otherwise stated in the Purchase Order, be liable for its Equipment at all times whilst not in use in the hole below the rotary table.
11.10 No payment for hire of Equipment shall be due by the Purchaser to the Vendor for any period following termination of hire due to loss or destruction of the Equipment.
12 Title, Risk and Insurance of Goods
12.1 Without prejudice to the Purchaser's rights and remedies under or arising from the Purchase Order, and in order to protect the Purchaser from any event which might hamper or prevent the Purchaser from obtaining the Goods (including but not limited to the Vendor going into liquidation, administration or having a receiver appointed by its creditors), title in the Goods shall vest in the Purchaser at the time of delivery thereof to the Purchaser or at the time the Purchaser makes any payment in whole or in part to the Vendor in respect of the Goods, whichever is earlier. If, however, the Goods are subject to any process of manufacture, modification or the like prior to delivery of the completed Goods to the Purchaser, title in the component parts shall vest in the Purchaser as soon as they are appointed by the Vendor for incorporation into the Goods, provided always that Purchaser shall have made a payment to Vendor towards the price of the Goods. Notwithstanding the foregoing, risk in the Goods shall pass to Purchaser only when physical delivery of the Goods to Purchaser has been completed. Until then, risk in the Goods shall remain with Vendor.
12.2 If for any reason Purchaser is unable to take delivery of the Goods at the time when the Goods are due and ready for delivery Vendor shall at its own risk and cost store the Goods, safeguard them and take all reasonable steps to prevent their deterioration until their actual delivery and Purchaser shall be liable to Vendor for the reasonable costs (including insurance) of so doing after a period of grace of one month free storage.
13 Force Majeure
13.1 Neither party shall be responsible to the other for any failure to fulfil any term or condition of the Purchase Order (except for the obligation to pay sums due under the Purchase Order) if and to the extent that fulfilment has been delayed or temporarily prevented by a force majeure occurrence, as hereunder defined, which is beyond the control and without fault or negligence of the party affected and which, by the exercise of reasonable diligence, the said party is unable to provide against.
13.2 For the purposes of the Purchase Order only the following occurrences shall be force majeure; (a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power; (b) ionising radiations or contamination by radio-activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or radio-active, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof; (c) Pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; (d) earthquake, flood, fire, explosion and/or other natural physical disaster, but excluding weather condition as such, regardless of severity; (e) strikes at a national or regional level or industrial disputes at a national or regional level, or strikes or industrial disputes by labour not employed by the affected party or its sub-contractors and which affect a substantial or essential portion of the Goods and/or Equipment and/or Services; (f) maritime or aviation disasters; (g) changes to any general or local Statute, Ordinance, Decree or other Law, or any regulation or bye-law of any local or other duly constituted authority or the introduction of any such Statute, Ordinance, Decree, Law, regulation or bye-law.
13.3 In the event of a force majeure occurrence, the affected Party will promptly notify the other in Writing of the force majeure occurrence.
13.4 In the event of a force majeure occurrence prevailing for a continuous period of fifteen (15) days or more, either Party may terminate the Purchase Order in whole or in part, upon notice thereof to the other Party in Writing.
14.1 The Purchaser shall defend, indemnify and hold harmless the Vendor Group from and against all Claims arising from, relating to or in connection with the Purchase Order in respect of:
14.1.1 loss or recovery of or damage to property of the Purchaser Group whether owned, hired, leased or otherwise provided by the Purchaser Group; and
14.1.2 personal injury including death or disease to any person employed by the Purchaser Group;
in each case irrespective of cause and notwithstanding the negligence and/or breach of duty (statutory or otherwise) of any member of the Vendor Group.
14.2 The Vendor shall defend, indemnify and hold harmless the Purchaser Group from and against all Claims arising from, relating to or in connection with the Purchaser Order in respect of:
14.2.1 loss or recovery of or damage to property of the Vendor Group, whether owned, hired, leased or otherwise provided by the Vendor Group;
14.2.2 personal injury including death or disease to any person employed by the Vendor Group; and
in each case irrespective of cause and notwithstanding of the negligence and/or breach of duty (statutory or otherwise) of any member of the Purchaser Group.
14.3 Notwithstanding anything else herein, the Vendor shall be responsible for the recovery or removal and when appropriate the marking or lighting of any wreck or debris arising from or relating to the Goods and/or Equipment and shall save, defend, indemnify and hold harmless the Purchaser Group in respect of all Claims arising out of such wreck or debris.
14.4 Notwithstanding anything within the Purchase Order to the contrary and except to the extent of any agreed liquidated damages (including without limitation any predetermined termination fees) provided for in the Purchase Order, the Purchaser shall defend, indemnify and hold harmless the Vendor Group from the Purchaser Group's own Consequential Loss arising out of or in connection with the Purchase Order irrespective of cause and notwithstanding the negligence or breach of duty (statutory or otherwise) of any member of the Vendor Group.
14.5 Notwithstanding anything within the Purchase Order to the contrary and except to the extent of any agreed liquidated damages (including without limitation any predetermined termination fees) provided for in the Purchase Order, the Vendor shall defend, indemnify and hold harmless the Purchaser Group from the Vendor Group's own Consequential Loss own Consequential Loss arising out of or in connection with the Purchase Order irrespective of cause and notwithstanding the negligence or breach of duty (statutory or otherwise) of any member of the Purchaser Group.
14.6 Notwithstanding anything within the Purchase Order to the contrary, Vendor shall indemnify and hold harmless the Purchaser from and against any loss or damage caused to third parties of the Vendor.
14.7 Notwithstanding anything to the contrary within the Purchase Order, the Vendor shall be liable for all income, sales, use, payroll and other taxes, customs, excise and import duties and other fees, levies and charges incurred by the Vendor, or its subcontractors or their employees with respect to the Purchase Order. The Vendor shall indemnify and hold the Purchaser Group harmless from any expense, claim, liability or obligation with respect to such amounts. This indemnity will survive termination or expiration of the Purchase Order.
14.8 If either Party becomes aware of any incident likely to give rise to a Claim under the above indemnities, it shall notify the other and the Parties shall co-operate fully in investigating the incident.
14.9 The indemnities given pursuant to the Purchase Order shall be full and primary and shall apply in respect of the full liability of the indemnity for Claims notwithstanding that the indemnified party may be entitled to contribution thereto from insurance or any other person.
14.10 This Clause 14 shall survive termination of the Purchase Order for any reason.
15.1 The Vendor shall arrange as a minimum the insurances set out in this Clause 15 and ensure that they are in full force and effect throughout the life of the Purchase Order. All such insurances shall be placed with reputable and substantial insurers, satisfactory to the Purchaser, and shall for all insurances other than Employers' Liability Insurance/Workmen's Compensation to the extent of the liabilities assumed by the Vendor under the Purchase Order, include the Purchaser and it and their respective Affiliates as additional assureds. All insurances required under this Clause 15 shall be endorsed to provide that underwriters waive any rights of recourse, including in particular subrogation rights against the Purchaser and its and their respective Affiliates in relation to the Purchase Order to the extent of the liabilities assumed by the Vendor under the Purchase Order. Such insurances shall also where possible, provide that the Purchaser shall be given not less than thirty (30) days' notice of cancellation of or material change to cover. The provisions of this Clause 15 shall in no way limit the liability of the Vendor under the Purchase Order.
15.2 The insurances required to be effected under Clause 15.1 shall be as follows (to the extent that they are relevant to the Purchase Order):
15.2.1 All insurances which the Vendor is obliged to carry under any Applicable Law.
15.2.2 Any other insurance which the Vendor, acting as a diligent, prudent and competent supplier within the oil and gas industry ought to consider appropriate in terms of type, coverage and limit, taking into account the nature, extent, scope and location of the Goods and/or Equipment and/or Services being provided under the Purchase Order.
15.3 The Vendor will arrange and maintain (at its own cost):
15.3.1 professional indemnity insurance at a level sufficient to meet any liability for any act or default for which the Vendor may become liable to indemnify the Purchaser under the terms of the Purchase Order; and
15.3.2 public liability insurance at a level sufficient to meet any liability for any act or default causing damage or personal injury for which the Vendor may become liable under the terms of the Purchase Order.
15.4 The Vendor shall supply the Purchaser with evidence of such insurances on demand.
16 Intellectual Property
16.1 The Vendor shall save, indemnify, defend and hold harmless the Purchaser Group against any Claim that the Goods and/or Equipment and/or Services, or any part thereof, constitute an infringement of any Intellectual Property rights. In case there is found to be an infringement, the Vendor shall, at his own expense, either procure for the Purchaser the right to continue using the Goods and/or Equipment and/or Services, or replace or modify them with substantially equal but non-infringing Goods and/or Equipment and/or Services or, if these options are not legally possible, remove the Goods and/or Equipment and/or cease to perform the Services, refunding in full the price paid under Clause 4 above. The Vendor shall inform the Purchaser if any designs or instructions furnished or given to the Vendor by the Purchaser shall be such as will cause the Vendor to infringe any Intellectual Property rights in the performance of the Purchase Order. The Vendor shall not attempt to register any Intellectual Property rights where the subject matter of the registration belongs hereunder or otherwise to the Purchaser.
16.2 The Vendor undertakes to disclose promptly in writing to the Purchaser any significant development made or conceived by the Vendor or by any sub-contractor or by any person engaged by the Vendor or any sub-contractor, constituting, arising out of, relating to or to be incorporated into any part of the Goods and/or Equipment and/or Services including any development made or conceived prior to but in anticipation of the award by the Purchaser of the Purchase Order. The Vendor hereby assigns, grants and conveys to the Purchaser the entire Intellectual Property rights in and to all such developments so made or conceived.
16.3 In the event of the Purchaser seeking to apply for any Intellectual Property rights the Vendor further undertakes for itself and for any sub-contractor and any person engaged by the Vendor or sub-contractor, to sign any paper or document and do any such other act or thing that may be required by the Purchaser to complete such application or registration. The Purchaser will pay the Vendor any reasonable costs that the Vendor demonstrates have been incurred in complying with this obligation.
16.4 Clauses 16.2 and 16.3 above shall only apply to the extent that the Purchase Order specifically identifies that design work and/or development work in relation to the Goods and/or Equipment and/or Services or any part thereof have been carried out by the Vendor or sub-contractor at the express instigation of the Purchaser (including where such work and /or development took place prior to the date of the Purchase Order).
16.5 The Vendor shall not have any right of use, other than for the purposes of the Purchase Order, whether directly or indirectly, of any Intellectual Property provided by the Purchaser in relation to the Purchase Order. Any Intellectual Property owned by the Purchaser prior to the date of the Purchase Order shall remain the Intellectual Property of the Purchaser.
16.6 This Clause 16 shall survive termination of the Purchase Order for any reason.
17 Termination and Suspension
17.1 Purchaser may by Written notice to Vendor terminate the Purchase Order in whole or in part at any time at its option and shall unless otherwise stated in the Purchase Order reimburse Vendor for all reasonable costs incurred prior to such termination.
17.2 If Vendor shall at any time become bankrupt or insolvent, or if its business is placed in the hands of an administrator, a receiver, assignee, or trustee, whether by voluntary act of the Vendor or otherwise, or undergoes any proceeding analogous to the foregoing or Purchaser reasonably apprehends that any of the foregoing events is about to occur in relation to Vendor and notifies Vendor accordingly, then Purchaser shall be at liberty:
17.2.1 to terminate the Purchase Order summarily by notice in Writing without any compensation or indemnity whatsoever to Vendor; or
17.2.2 to give any such receiver or liquidator or other person the option to carry out the Purchase Order.
17.3 The exercise of any of the rights granted to Purchaser under this Clause 17 shall not limit or affect any rights or actions or remedy which shall have accrued or shall accrue thereafter to Purchaser.
18.1 The Vendor shall not (and shall procure that its Affiliates and its officers, employees and sub-contractors and those of its Affiliates shall not) disclosure any information of a confidential or commercially sensitive nature relating to the Purchaser or its Affiliates or their respective businesses, technology or other affairs to any third party (or any officer or employee or contractors of the Vendor except to the extent that such officer or employee or sub-contractors requires knowledge of the same for the proper performance of the Purchase Order) or use any such information for any purpose other than the proper performance of the Purchase Order. The Vendor shall, if so required by the Purchaser at any time, promptly return to the Purchaser all copies of any such information which may be in the Vendor's or its officers' or employees' or sub-contractor possession or under their control. This Clause shall not apply to information which is, or becomes through no fault of the Vendor, its officers' or employees' or sub-contractors part of the public domain or to any disclosure which the Vendor is required by law to make save that in the event of such a legal requirement arising, Vendor shall give prior notice of such disclosure obligation to Purchaser and will endeavour to disclose only that confidential information which is required to meet its legal obligations.
18.2 This Clause 18 shall survive termination of the Purchase Order for any reason.
19 Governing Law and Jurisdiction
19.1 The Purchase Order shall in all respects be construed and governed in accordance with the laws of England and Wales.
19.2 Any dispute or difference which may arise between the Purchaser and the Vendor on any matter relating to the Purchase Order which cannot be settled by negotiation within thirty (30) days of the dispute arising (or such other period as may be mutually agreed between the Parties) shall be referred to arbitration under the rules of the London Court of International Arbitration. Such dispute or difference will be determined by a single arbitrator acceptable to the Parties.
19.3 If the Parties are unable to agree on a single arbitrator within fourteen (14) days of each suggesting the name of a suitable arbitrator, either Party may apply to the President for the time being of The Confederation of British Industry for the name of an alternative arbitrator.
19.4 The place of arbitration shall be London and all proceedings shall be held in English.
19.5 The decision of the arbitrator shall be final and binding. Any award made shall be promptly performed and/or paid without deduction or set off. Unless determined otherwise by the arbitrator, the costs and expenses of arbitration shall be borne equally between the Parties.
20.1 The Vendor shall act as an independent contractor with respect to the Purchase Order. Nothing in the Purchase Order is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, make any Party the agent or employee of any other Party, or authorise any Party to make or enter into commitments for and on behalf of any other Party.
20.2 Any notice required or permitted to be given by either Party to the other under the Purchase Order shall be in Writing addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice. Any notice or other communication shall be deemed to have been duly received if delivered personally. When left at the address referred to above or if sent by post at 8.00am on the second business day after posting or if delivered by commercial courier, on the date and at the time that the couriers delivery receipt is signed.
20.3 Any failure by either Party to enforce all or any portion of the Purchase Order or waiver by the Purchaser of any breach of the Purchase Order by the Vendor shall not be considered a waiver of any subsequent breach or future right to require strict performance of the Purchase Order.
20.4 If any provision of the Purchase Order is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Purchase Order and the remainder of the provision in question shall not be affected. If any invalid or unenforceable provision of the Purchase Order would be valid and enforceable if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it valid and enforceable.
20.5 Vendor shall have an established and documented Health, Safety and Environment (HSE) system and a quality assurance system in accordance with applicable law and the relevant ISO standard or equivalent standards. If design or engineering is included in the delivery, the relevant ISO standard for engineering shall be required, in addition.
20.6 Vendor shall obtain and maintain all approvals, permissions and licenses which are necessary for the performance of its obligations pursuant to each Purchase Order.
20.7 The Contracts (Rights of Third Parties) Act 1999 shall apply to the Purchase Order, but only to the extent that a member of Purchaser Group or Vendor Group (other than Purchaser or Vendor) shall be entitled in its own right to enforce the benefit of the indemnities under Clause 14 but not in any other respect. Notwithstanding the foregoing the Purchase Order may be rescinded, amended or varied by the Parties without notice to or the consent or any third party even if, as a result that third party's right to enforce a term of the Purchase Order may be varied or extinguished.
21.1 The Purchaser has the right to assign the Purchase Order or any part of it or any benefit or interest in or under it to any Affiliate or third party without the consent of the Vendor.
21.2 The Vendor shall not assign this Purchase Order or subcontract any part of same without prior Written approval by the Purchaser. The Vendor is responsible for the acts and omissions of any subcontractor. Subcontractors shall have no right to makes claims towards the Purchaser.
21.3 The Vendor shall verify that any approved subcontractor has an established and documented quality assurance system adequate for the Purchase Order.
22.1 To verify the Vendor's compliance with the Purchase Order, the Purchaser may, at its sole expense, audit the Vendor's records and those of its sub-contractor and sub-contractors including all books, papers, documents, agreements, and any other information that may have an effect on or be related to the Purchase Order. The Vendor shall co-operate fully in furnishing all such requested records. The Purchaser shall have the right to obtain statements from any of the Vendor's personnel who may have information necessary to conduct or complete any such audits. All audits will be conducted in accordance with generally accepted auditing standards and during normal business hours.
23 Business Ethics
23.1 Both Parties shall uphold the highest standards of business ethics in the performance of the Purchase Order. Integrity, honesty and ethical business practices shall be paramount principles in the dealings between the Parties.
23.2 Neither Party shall knowingly involve itself in any business in connection with, or use information arising from, the Purchase Order, in any manner which conflicts with the interest of the other Party.
23.3 The Vendor warrants and represents that in the performance of its obligations under the Purchase Order it has complied and shall comply with any applicable laws, rules, regulations, labour agreements, working conditions and technical codes and requirements of any governmental or regulatory body having jurisdiction over the Purchase Order.
23.4 Each party warrants and represents that in the performance of its obligations under the Purchase Order it has complied and shall comply with any Applicable Anti-Bribery Laws.
23.5 The Vendor warrants that it has an ABC Programme setting out adequate procedures to comply with Applicable Anti-Bribery Laws and that it will comply with such ABC Programme in respect of the Purchase Order.
23.6 In addition and subject to Clause 22, on provision of no less than thirty (30) days' notice, the Purchaser or its duly authorised representatives shall have the right to audit, at its own cost, the existence, content and implementation of the Vendor's ABC Programme, but such right shall not include access to documents that are legally privileged or were created for the purpose of an on-going internal investigation.
23.7 Where it is legally able to do so, and subject to a request by the Competent Authority not to notify, each Party shall notify the other in writing immediately upon whichever is the earlier of:
23.7.1 becoming aware of any investigation or proceeding initiated by a Competent Authority relating to an alleged breach of Applicable Anti-Bribery Laws by either Party or any member of its Group in connection with the Purchase Order; or
23.7.2 having a reasonable belief that either Party or any member of its Group has breached Applicable Anti-Bribery Laws in connection with the Purchase Order.
The affected Party shall use reasonable efforts to keep the other Party informed as to the progress and findings of such investigation or proceedings, the details of any measures being undertaken by such Party to respond to the alleged breach and the remedial measures that are being or will be implemented to prevent such conduct in the future.
23.8.1 Subject to the remaining provisions of this Clause 23.8, in the event that the Purchaser has a reasonable belief that the Vendor has breached Clause 23.4, the Purchaser may give notice of its intention to suspend payments under the applicable Purchase Order to the Vendor giving the basis of such reasonable belief. If the Vendor upon receipt of such notice neither responds with information reasonably satisfactory to the Purchaser to refute such reasonable belief nor commences and continues with action reasonably satisfactory to the Purchaser to remedy such suspected breach of Clause 23.4 within seven (7) days the Purchaser may, by the provision of notice, suspend with immediate effect any payments due under this Purchase Order.
23.8.2 The Purchaser shall not be entitled to suspend payment for sums due under this Purchase Order for any part of the Work performed in accordance with the Contract that the Vendor can reasonably substantiate as not being connected with the suspected breach.
23.8.3 In the event of any such suspension, the Purchaser and the Vendor shall meet at not more than seven (7) day intervals with a view to agreeing an appropriate course of action during the period of suspension.
23.8.4 On expiration of the suspension, the Purchaser shall, unless otherwise agreed, either:
220.127.116.11 make full payment of any sums retained pursuant to this Clause 23.8 which are otherwise due within thirty (30) days; or
18.104.22.168 if its reasonable belief remains, serve notice within thirty (30) days that the Purchase Order is terminated pursuant to this provision.
23.9 In the event of termination in accordance with Clause 22.214.171.124 the following conditions shall apply:
23.9.1 subject to sub-paragraph Clause 23.8.2, the Vendor shall be entitled to payment only as set out in the Purchase Order for Work completed in accordance with the Purchase Order up to the date of termination;
23.9.2 the Vendor shall not be entitled to payment for any sums connected with the possible breach of Applicable Anti-Bribery Laws (including those retained under Clause 23.8);
23.9.3 subject to the Purchaser being able to evidence that a breach of Clause 23.4 has occurred, the Purchaser shall be entitled to receive from Vendor any additional costs reasonably incurred by the Purchaser as a result of a breach by the Vendor; and
23.9.4 payment shall be made to the Vendor within thirty (30) days of the date of termination of the Purchase Order.
23.10 The Vendor shall save, indemnify, defend and hold harmless the Purchaser against all costs (including legal and investigation costs) and expenses incurred by the Purchaser or arising in respect of any breach of Clause 23.4 by the Vendor.