TERMS AND CONDITIONS FOR
PROVISION OF GOODS AND SERVICES BY SUBSEE SERVICES Ltd.
“Acceptance” shall mean the date on which the Goods
and/or Services have been accepted by the Client.
“Affiliate (s)” shall mean 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 1162 of the Companies Act, 2006, as amended, provided that a company
shall be treated for the purposes 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 (i) another person
(or its nominee) whether by way of security or in connection with the taking of
security, or (ii) its nominee.
“Agreement” shall mean the Order and these Terms.
"Amendment" shall mean a change to the
original Order issued pursuant to Clause 11.
“Catastrophic Incident” shall mean any blow-out,
cratering, fire, explosion and/or killing or control of any well which shall
have become out of control for any reason.
“Claims” shall mean any and all claims, demands,
“Consequential Loss” shall mean:
consequential loss under applicable law; and
loss and/or deferral of production, loss of
product, loss of use, loss of revenue, profit or anticipated profit (if any),
drill rig, and vessel (including FPSO) stand-by costs, in each case whether
direct or indirect to the extent that these are not included in (a) above and
whether or not foreseeable at the date hereof.
"Client" shall mean the person, firm or
company as specified in the Order and to whom the Order is issued.
“Client Group” shall mean the Client, its clients
and co-venturers, its and their contractors and sub-contractors (of any tier), and
its and their respective parent, subsidiary and Affiliates and the directors,
officers and employees of all such companies, but shall not include any member
of Subsee Services Ltd. Group.
"Delivery Date" shall mean the date
specified in the Order as the Delivery Date.
“Goods” shall mean the goods, materials and/or
equipment (if any) to be provided by Subsee Services Ltd. in accordance with
the provisions of the Agreement.
"Order" shall mean the Order issued by
the Client and as formally accepted by Subsee Services Ltd. including all
documents referred to therein and as varied by any Amendment (if any).
"Price" shall mean all sums payable to Subsee
Services Ltd. as specified in the Order for performance of the Work.
“Subsee Services Ltd.” shall mean Subsee Services
Ltd. (company number SC536033) having its registered office at SENGS House,
Balmacassie Way, Balmacassie Commercial Park, Ellon, Aberdeenshire, AB41 8BR.
“Subsee Services Ltd. ” shall mean Subsee Services
Ltd., its suppliers and clients its and their subcontractors of any tier, its
and their parent, subsidiary and Affiliate(s) and the directors, officers and
employees of all such companies, but shall not include any member of Client
“Services” shall mean all services (if any) that Subsee
Services Ltd. is contracted to perform in accordance with the provisions of the
“Terms” shall mean these terms and conditions.
"Third Party” shall mean any person who does
not form part of Client Group or Subsee Services Ltd.
“Work" shall mean the Goods and/or Services to
be provided under the Order, all as more fully set out herein and as may be
changed by any Amendment.
ACCEPTANCE OF GOODS
Acceptance of the Goods shall be at the time when a
duly authorised employee or representative of the Client accepts the Goods,
delivered or collected and such Goods appear not to be defective or damaged in
any way, and appear to comply with the Agreement. In the event that a defect in or damage to
the Goods or any other breach of the Agreement affecting the Goods is
identified, Client shall not be deemed to have accepted the Goods until such
time as such defect, damage or breach is remedied by Subsee Services Ltd. at
its sole risk and expense in order to bring the Goods into compliance with the
Agreement. Client shall inform Subsee
Services Ltd. within five (5) working days of receipt by Client of the Goods if
the Goods have not been accepted due to such defect or damage or breach, and
failure to so notify shall imply that the Goods have been accepted by Client
without such defect, damage or breach.
The Goods shall be delivered to or collected by the
Client, as indicated in the Order, on or by the Delivery Date or in accordance
with the Incoterms to be agreed between the parties.
Promptness of delivery of the Goods and performance
of the Services is of the utmost importance.
If at any time Subsee Services Ltd. has reason to believe that the
Delivery Date shall not be met, written notice setting forth the cause of delay
and the best probable delivery date must be given promptly to Client.
Subsee Services Ltd. shall be liable for and shall
release, save, defend, indemnify and hold harmless the Client Group in respect
of Claims arising from, relating to or in connection with the performance,
non-performance or misperformance of the Agreement for:
personal injury, death, disease or illness of any
member of Subsee Services Ltd.
loss of or damage to the property belonging to any
member of Subsee Services Ltd. whether
owned, leased, hired, or otherwise provided by Subsee Services Ltd.;
subject to Clause 4.3, personal injury including
death or disease, loss of or damage to the property of any Third Party to the
extent that such injury, loss or damage is caused by the negligence or breach
of duty (whether statutory or otherwise) of any member of Subsee Services Ltd. .
Client shall be liable for and shall release, save,
defend, indemnify and hold harmless Subsee Services Ltd. in respect of Claims arising from, relating
to or in connection with the performance, non-performance or misperformance of
the Agreement for:
personal injury, death, disease or illness of any
member of Client Group;
loss of or damage to the property belonging to the
Client Group, whether owned, leased, hired or otherwise provided by Client
personal injury including death or disease, loss of
or damage to the property of any Third Party to the extent that such injury, loss
or damage is caused by the negligence or breach of duty (whether statutory or
otherwise) of any member of Client Group.
Subject to Clauses 4.1(a), 4.1(b), and 4.4, Client
shall be liable for and shall release, save, defend, indemnify and hold
harmless Subsee Services Ltd. in respect of Claims arising from:
Pollution and/or contamination (radioactive or
otherwise) including without limitation such pollution or contamination
emanating from reservoirs and/or any equipment or property of Subsee Services Ltd. (where such arises at an offshore worksite)
and/or any equipment or property of Client Group; and
Catastrophic Incidents to the extent not covered
under (a) above,
arising from, relating to
or in connection with the performance, non-performance or misperformance of the
Notwithstanding any provision to the contrary
elsewhere in the Agreement and except to the extent of any agreed liquidated
damages (including, any predetermined termination fees), Subsee Services Ltd.
shall release, save, defend, indemnify and hold harmless the Client Group from Subsee
Services Ltd. own Consequential Loss and Client shall release, save, defend,
indemnify and hold harmless Subsee Services Ltd. from Client Group’s own Consequential Loss
arising from, relating to or in connection with the performance,
non-performance or misperformance of the Agreement.
The indemnities given pursuant to this Agreement
shall be full and primary, irrespective of whether the parties carry insurance
in respect of the indemnities given herein.
Notwithstanding Clause 4.1(b) and except to the
extent of fair wear and tear, Client shall reimburse Subsee Services Ltd. in
respect of loss of or damage to property, materials and/or equipment of Subsee
Services Ltd. which occurs:
during the performance of Services at Client’s
worksite except to the extent that such damage is caused by the negligence or
breach of duty (whether statutory or otherwise) of Subsee Services Ltd. ; and
during the period of rental by Client (if rental is
included in the Services) whilst such property, materials and/or equipment is
in the care and custody of Client Group.
Client’s liability for such
loss or damage shall be either the actual repair (provided the
property/material or equipment has been returned to Subsee Services Ltd. and is
not deemed a total write off) or the applicable replacement cost, whichever is
the lesser, as substantiated by Subsee Services Ltd. to Client.
Except as provided in Clauses 4.1(c), 4.2(c) and
4.6, all exclusions and indemnities given under this Clause 4 shall apply
irrespective of cause and notwithstanding the negligence or breach of duty
(whether statutory or otherwise) of the indemnified party or any other entity
or party and shall apply irrespective of any claim in tort, under contract or
otherwise at law.
Subsee Services Ltd. shall ensure that it maintains
all necessary insurances to cover its liabilities hereunder.
INVOICING AND PAYMENT
In consideration of the Goods and/or Services being
satisfactorily provided in accordance with the terms of the Agreement, Client
shall pay the Price to Subsee Services Ltd. in accordance with the terms of
After delivery of the Goods and/or supply of the
Services, Subsee Services Ltd. shall submit to Client an invoice in the amounts
specified in the Order and client shall pay the invoice within thirty (30) days
Interest shall be payable for late payment of
correctly prepared and supported invoices.
The amount of interest payable shall be three per cent (3%) above the
then current annual Bank of England Base Rate and shall be calculated pro rata
on a daily basis. Interest shall run
from the date on which the sum in question becomes payable in accordance with
Clause 6.2 until the date on which actual payment is made.
Without prejudice to any other rights hereunder, Subsee
Services Ltd. shall be entitled to suspend any Work being provided under this
Agreement in the event of any payments becoming more than seven (7) days
Subsee Services Ltd. shall pay all its own taxes,
charges, levies and contributions incurred by it in performance of the
Agreement and shall release, save, defend, indemnify and hold harmless the
Client Group from and against any and all Claims for any such taxes, charges,
levies and contributions so levied against the Client Group.
Subsee Services Ltd. shall comply with all relevant
statutes, laws, regulations, by-laws and directives affecting the Goods and/or
Services and shall comply with Client’s safety regulations when performing
Services at Client’s premises to the extent Subsee Services Ltd. has been made
aware of such safety regulations prior to commencing such Services.
DEFECTS AND WARRANTY
Subsee Services Ltd. warrants that the Goods
supplied hereunder will conform to any codes, standards and specifications set
forth in the Agreement and will be of satisfactory quality and shall be fit for
their specified purpose and free from defects in design, material and workmanship.
During a period of twelve (12) months after
Acceptance, where Client has found the Goods or part thereof to not to have
been supplied in accordance with the Agreement, Client shall detail in writing
the specific nature of the defect and upon receipt of such notice, Subsee
Services Ltd. shall at its own risk and expense and within ten (10) days of
receipt of such notice commence, at Subsee Services Ltd.’ option, to either
replace or repair the Goods or any part thereof found to be defective, due to
faulty material, workmanship or design or due to any act or omission of Subsee
Services Ltd. . A further twelve (12)
month warranty, with a maximum cumulative warranty of twenty-four (24) months,
shall be given by Subsee Services Ltd. for those Goods where such Goods (or
part thereof) have been replaced or repaired; such warranty shall commence as
soon as the Goods (or part thereof) have been replaced or repaired and approved
as such by Client, such approval not to be unreasonably withheld, delayed or conditioned.
Subsee Services Ltd.’ total cumulative liability
under this Clause 9.1 shall not exceed one hundred per cent (100%) of the Price
Subsee Services Ltd. warrants that personnel
supplied shall be competent for the performance of the duties for which they
are supplied. Where in the opinion of
Client (acting reasonably), the performance of any of the Services by such personnel
does not comply with the provisions of the Agreement, Client may serve written
notice upon Subsee Services Ltd.. Subsee Services Ltd. shall at its own cost
take such measures as required by Client (acting reasonably), up to and
including the removal and/or replacement of such personnel, if appropriate.
It is hereby agreed that:
upon completion of the Services (or relevant part
thereof) performed by Subsee Services Ltd. personnel pursuant to the relevant
upon appropriate sign-off of the Services by
Client’s representative at the relevant work site; and
the relevant Subsee Services Ltd. personnel then
accordingly leaving the relevant work site, then the Services (or relevant part
thereof) will be deemed to have been completed to the satisfaction of the
Client and the Client will not have the right to serve notice upon Subsee
Services Ltd. pursuant to Clause 9.2(b).
It is hereby agreed that Subsee Services Ltd.’
liability pursuant to Clause 9.2(a) shall be limited to the actual cost of
providing Subsee Services Ltd. personnel only to re-perform the Services (or
relevant part thereof) up to a maximum cost of seven (7) days of
ASSIGNMENT AND SUBCONTRACTING
Neither party shall assign or subcontract its
rights or obligations hereunder without the other party’s prior written
consent, such consent not be unreasonably withheld, delayed or conditioned.
Client may at any time
propose changes in writing relating to the supply of Goods and/or Services
under the Agreement including changes to the Delivery Date and upon Subsee
Services Ltd.’ written agreement to the same, these shall be deemed a formal
variation of the Agreement.
If such changes result in
an increase or decrease in cost or time an equitable adjustment shall be made
to the Price or Delivery Date or both.
OWNERSHIP AND RISK
Subsee Services Ltd. warrants full, clear and
unrestricted title in the Goods, free and clear of any and all liens,
restrictions, reservations, security interests and encumbrances. Title in the Goods shall pass to Client as
soon as they have been allocated to the Agreement, delivered hereunder or paid
for by Client whichever is the latest and risk in the Good shall pass on
Acceptance, whereupon they shall be deemed to be Client property for the
purposes of Clause 4.2(b).
All tools, designs, patterns and equipment or
materials of every description furnished by Client to Subsee Services Ltd. in
connection with the manufacture of the Goods and/or supply of the Services
shall be and remain the property of the Client.
Such property shall be plainly marked or otherwise adequately identified
by Subsee Services Ltd. as “Property of Client”.
Such property whilst in Subsee Services Ltd.’
custody or control shall be held at Client’s risk and shall be subject to
removal at Client’s written request in which event, Subsee Services Ltd. shall
prepare such property ready for shipment and shall redeliver to Client in the
same condition originally received, reasonable wear and tear excepted.
Neither Client nor Subsee Services Ltd. shall have
the right of use, other than for the purposes of the Agreement, whether
directly or indirectly, of any patent, copyright, proprietary right or
confidential know how, trademark or process provided by the other party and the
intellectual property rights in such shall remain with the party providing such
patent, proprietary right, copyright or confidential know how, trademark or
Subsee Services Ltd. shall be liable for and shall
release, save, defend, indemnify and hold harmless Client Group against all
Claims arising from infringement of any patent, trademark, registered design,
copyright or other proprietary right in respect of the performance by Subsee
Services Ltd. of its obligations under the Agreement except where such patent,
trademark, registered design, copyright or other proprietary right has been
provided to Subsee Services Ltd. pursuant to Clause 13 (hereinafter “Client
Provided Proprietary Property”) in which case Client shall be liable for and
shall release, save, defend, indemnify and hold harmless Subsee Services Ltd. against all Claims arising from infringement
of Client Provided Proprietary Property and this condition shall remain binding
on the parties notwithstanding the completion or termination of the Agreement.
All copyrights, design rights, patents and related
applications arising out of and developed in connection with the Agreement
shall vest exclusively in Subsee Services Ltd..
In the event of Subsee Services Ltd.’ default in
performance of any of its obligations under the Agreement (Force Majeure
excepted), Client may give Subsee Services Ltd. written notice to rectify such
default within the time specified in such notice (such time for rectification
is to be no less than fifteen (15) days).
If Subsee Services Ltd. fails to comply with the
requirements of such notice or if, in Client’s reasonable opinion, such default
is not capable of being rectified, Client shall be entitled to terminate the
Agreement in whole or in part forthwith by giving notice in writing to that
Without prejudice to any of its other rights under
this Agreement or at law, if any payment in relation to any correctly prepared
and supported invoice(s), becomes more than fifteen (15) days overdue, Subsee
Services Ltd. shall be entitled to terminate the Agreement in whole or in part
forthwith by giving notice in writing to that affect. Such termination shall not relieve the
Client’s obligation to pay any outstanding amounts due to Subsee Services Ltd.
hereunder, including but not limited to, amounts due in relation to Work
performed but not yet invoiced for.
In the event of the bankruptcy or insolvency of
either party, the other party shall be entitled to terminate the Agreement by
giving notice in writing to the other party to that affect.
Where either party is unable to perform the Order
in the time specified by reason of Force Majeure they shall be entitled to a
reasonable extension of time for performance, always excepting inefficiency or
late performance by Subsee Services Ltd. or any of Subsee Services Ltd. .
"Force Majeure" shall mean any event
outside the control of the party effected and includes but shall not be limited
to any acts of God, fire, explosion, flood, lighting, strike or labour dispute
(other than strike or labour dispute by personnel of Supplier Group, of any
tier) war, rebellion, riot or terrorism.
In any such event the party concerned should
immediately notify the other party in writing and estimate how long these
circumstances are likely to continue.
The party concerned shall take all reasonable steps
to avoid further or consequential delay and to proceed with the due performance
of the Order.
All information obtained by one party (the
“receiving party”) from the other party (the “disclosing party”) in the course
of and in connection with the Agreement concerning the disclosing party’s
Group, shall be held confidential by the receiving party and shall remain the
property of the disclosing party’s Group and shall not be divulged by the receiving
party to any Third Party without the prior written consent of the disclosing
It is however agreed that the receiving party may
share such information with its own Group to the extent necessary for
performance under the Agreement and subject to the receiving party ensuring its
other members of its own Group are bound by similar confidentiality obligations
as imposed on the receiving party hereunder.
LAW AND LANGUAGE
The Order shall be construed in accordance with Scottish
Law and the parties agree to submit to the exclusive jurisdiction of the Scottish
All documentation provided by Supplier or its
sub-contractors in connection with this Order shall be in the English language.
Notices shall be validly given if sent by fax or
received by recorded delivery post to the addresses for the parties stated
respectively on the Order or to any address subsequently notified in writing by
one party to the other party. Notices to Subsee Services Ltd. to be
specifically marked for the attention of the "Purchasing and Logistics
The Order and all documents referred to therein as
varied by any Amendment shall constitute the entire agreement between the
parties and supersede all prior agreements and understandings written or oral.
For the avoidance of doubt, any terms and
conditions that the Client may intend to impose, including any attached to the
Order shall not form part of the Agreement, nor have any legal effect on the
parties whatsoever and these Terms shall supersede any such terms and
None of the provisions of this Order shall be
considered waived by Subsee Services Ltd. unless such waiver is given by Subsee
Services Ltd. in writing.
Client hereby undertakes to Subsee Services Ltd. that
it will not directly or indirectly solicit or attempt to employ either by way
of contract of employment, consultancy agreement or otherwise, any person
employed or otherwise exclusively engaged by Subsee Services Ltd..
The provisions of this Clause 23 shall apply for
the duration of this Order and continue for a period of twenty-four (24) months
after the termination thereof.
For the avoidance of doubt, the provisions of this
Clause 23 will not apply to responses from persons employed or otherwise
exclusively engaged by Subsee Services Ltd. to normal recruitment advertising
campaigns by Client.
(RIGHTS OF THIRD PARTIES) ACT
The parties agree that the Contracts (Rights of
Third Parties) Act 1999 shall not apply to the Agreement and no person other
than Client or Subsee Services Ltd. shall be entitled to enforce the provisions
of the Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999.
The parties shall uphold the highest standards of
business ethics in the performance of the Agreement.
Neither party shall knowingly use information
arising from the Agreement in any manner which conflicts with the interests of
the other party. In particular, neither
of the parties shall, directly or indirectly, receive, give, or offer to give,
anything of material value from or to any employee, director or agent of the
other party or its other contractors, sub-contractors and suppliers, government
officials or any other persons which could be regarded as an improper
inducement to any party.
Any breach of Clause 25.1 and/or 25.2 shall
constitute a material breach of the Agreement and entitle the non-defaulting
party to terminate the Agreement with immediate effect.
Subsee Services Ltd. Values are described on Subsee
Services Ltd. website at www.subseeservices.com. Should the Client’s
standards not reach Subsee Services Ltd.’ standards, Subsee Services Ltd.
encourages the Client to do his best efforts to run his business and to execute
the Order in a manner as compliant as possible with Subsee Services Ltd.’
standards. Subsee Services Ltd. also
encourages the Client to flow this expectation to Client Group.