TERMS AND CONDITIONS FOR PROVISION OF GOODS AND SERVICES BY SUBSEE SERVICES Ltd.

 

1.          DEFINITIONS

1.1.     “Acceptance” shall mean the date on which the Goods and/or Services have been accepted by the Client.

1.2.     “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.

1.3.     “Agreement” shall mean the Order and these Terms.

1.4.     "Amendment" shall mean a change to the original Order issued pursuant to Clause 11.

1.5.     “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.

1.6.     “Claims” shall mean any and all claims, demands, suits.

1.7.     “Consequential Loss” shall mean:

(a)        consequential loss under applicable law; and

(b)        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.

1.8.     "Client" shall mean the person, firm or company as specified in the Order and to whom the Order is issued.

1.9.     “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.

1.10.  "Delivery Date" shall mean the date specified in the Order as the Delivery Date.

1.11.  “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.

1.12.  "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).

1.13.  "Price" shall mean all sums payable to Subsee Services Ltd. as specified in the Order for performance of the Work.

1.14.  “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.

1.15.  “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 Group. 

1.16.  “Services” shall mean all services (if any) that Subsee Services Ltd. is contracted to perform in accordance with the provisions of the Agreement.

1.17.  “Terms” shall mean these terms and conditions.

1.18.  "Third Party” shall mean any person who does not form part of Client Group or Subsee Services Ltd.

1.19.  “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.

2.          ACCEPTANCE OF GOODS

2.1.     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.

3.          DELIVERY

3.1.     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.

3.2.     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.

4.          INDEMNITIES

4.1.     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:

(a)        personal injury, death, disease or illness of any member of Subsee Services Ltd.

(b)        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.;

(c)         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. .

4.2.     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:

(a)        personal injury, death, disease or illness of any member of Client Group;

(b)        loss of or damage to the property belonging to the Client Group, whether owned, leased, hired or otherwise provided by Client Group;

(c)         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.

4.3.     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:

(a)        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

(b)        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 Agreement.

4.4.     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.

4.5.     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.

4.6.     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:

(a)        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

(b)        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.

4.7.     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.

5.          INSURANCE

5.1.     Subsee Services Ltd. shall ensure that it maintains all necessary insurances to cover its liabilities hereunder.

6.          INVOICING AND PAYMENT

6.1.     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 this Agreement.

6.2.     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 of receipt.

6.3.     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.

6.4.     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 overdue.

7.          TAX

7.1.     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.

8.          SAFETY

8.1.     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.

9.          DEFECTS AND WARRANTY

9.1.     GOODS

(a)        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.

(b)        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.

(c)         Subsee Services Ltd.’ total cumulative liability under this Clause 9.1 shall not exceed one hundred per cent (100%) of the Price paid.

9.2.     SERVICES

(a)        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.

(b)        It is hereby agreed that:

(i)          upon completion of the Services (or relevant part thereof) performed by Subsee Services Ltd. personnel pursuant to the relevant Order;

(ii)         upon appropriate sign-off of the Services by Client’s representative at the relevant work site; and

(iii)        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).

(c)         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 re-performance.

10.       ASSIGNMENT AND SUBCONTRACTING

10.1.  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.

11.       AMENDMENTS

11.1.  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.

11.2.  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.

12.       OWNERSHIP AND RISK

12.1.  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).

13.       CLIENT PROPERTY

13.1.  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”.

13.2.  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.

14.       PROPRIETARY RIGHTS

14.1.  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 process.

15.       PATENTS

15.1.  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.

15.2.  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..

16.       TERMINATION

16.1.  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).

16.2.  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 affect.

16.3.  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.

16.4.  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.

17.       FORCE MAJEURE

17.1.  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. .

17.2.  "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.

17.3.  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.

17.4.  The party concerned shall take all reasonable steps to avoid further or consequential delay and to proceed with the due performance of the Order.

18.       CONFIDENTIAL INFORMATION

18.1.  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 party.

18.2.  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.

19.       LAW AND LANGUAGE

19.1.  The Order shall be construed in accordance with Scottish Law and the parties agree to submit to the exclusive jurisdiction of the Scottish Courts.

19.2.  All documentation provided by Supplier or its sub-contractors in connection with this Order shall be in the English language.

20.       NOTICES

20.1.  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 Manager."

21.       ENTIRETY

21.1.  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.

21.2.  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 conditions.

22.       WAIVER

22.1.  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.

23.       NON HIRING

23.1.  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..

23.2.  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.

23.3.  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.

24.       CONTRACTS (RIGHTS OF THIRD PARTIES) ACT

24.1.  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.

25.       BUSINESS ETHICS

25.1.  The parties shall uphold the highest standards of business ethics in the performance of the Agreement.

25.2.  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.

25.3.  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.

25.4.  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.