Cooperheat Equipment Ltd.
STANDARD TERMS AND CONDITIONS OF SALE
1. DEFINED TERMS
In these terms and conditions:
1.1. “Affiliate” shall mean, with respect to a company, any other entity directly or indirectly controlled by, controlling, or under common control with, such company.
1.2. “Authorised Representative” means the persons nominated in writing as representatives of the Company and Customer respectively.
1.3. “Company” means Cooperheat Equipment Ltd.
1.4. “Company Group” means the Company, its Affiliates, its subcontractors of any tier and the directors, officers, members and employees (including without limitation agency personnel) of all of the foregoing, but shall not include any member of Customer Group.
1.5. “Conditions” means any term or condition contained herein or as may be from time to time amended in writing by the Company.
1.6. “Contract” shall mean the Purchase Order or Customer’s acceptance of a quotation from the Company, together with these Conditions and all appendices and documents referred to therein.
1.7. “Customer” means any person, firm or body offering to buy Goods and/or Services from the Company.
1.8. “Customer Group” means Customer, its client or customer of any tier, its and their co-venturers, its and their contractors of any tier and the respective Affiliates of each, and the directors, officers, members and employees (including without limitation agency personnel) of all of the foregoing, but shall not include any member of Company Group.
1.9. “Goods” shall mean any equipment, including tools and items (or components integrated therein) to be sold by Company to the Customer under the Contract.
1.10. “Purchase Order” shall mean the document issued or approved by Customer instructing Company to provide the Work (including any instruction or communication provided electronically).
1.11. “Services” shall mean all the activities, operations, tasks and duties performed by the Company, including design and engineering services, reports and documentation in relation thereto.
1.12. “Work” shall mean the Goods or Services, as applicable.
2. QUOTATIONS AND ACCEPTANCE OF ORDER
2.1. These Conditions constitute the only conditions upon which the Company is willing to provide the Works and shall prevail over any terms and/or conditions in the Customer’s order or any other document or communication issued by the Customer or implied by trade usage, custom, practice or course of dealing except where specifically agreed in writing to by an Authorised Representative of the Company. Any purported provision to the contrary is hereby excluded or extinguished.
2.2. Any Purchase Order given by the Customer in respect of a quotation or estimate by the Company, shall not be binding on the Company until accepted in writing by the Company or (if earlier) the Company delivers the Goods or commences the Services.
2.3. The Company’s price lists, estimates and quotations do not constitute offers made by the Company and, in any event, the Company may at its absolute discretion refuse to accept any Purchase Order.
2.4. The acceptance by the Company of each separate Purchase Order shall constitute a separate contract between the Company and the Customer.
2.5. Unless otherwise specified by the Company, quotations given by the Company shall be valid for thirty (30) days only. The Company reserves the right to withdraw or revise the same with notice to the Customer. The Company may at any time in writing terminate any Contract without further penalty or liability.
2.6. If during the Work it becomes apparent that additional Work not initially agreed to be provided by the Company is necessary, the Company shall submit a quotation for such additional Work. If the Customer does not require the additional work to be undertaken, the Company may invoice in respect of the Work performed.
3.1. Save where otherwise specified, all rates, sums and prices exclusive of all taxes and duties, including but not limited to VAT, withholding taxes, Goods and Services Tax (GST), customs duties, import taxes, surcharges and assessments imposed upon either party in relation to the Work by any governmental authority. Customer shall save, defend, indemnify and hold harmless Company from all taxes and duties.
3.2. The Company shall have the right, subject to reasonable prior notice to the Customer, to vary the prices quoted in the event of any increase in the cost of materials and/or labour and/or increase in customs, import or export duties.
3.3. If any variation or suspension of the Work results from the Customer’s instructions or lack of instructions, the Company shall be entitled to adjust the price to reflect any additional costs incurred by the Company and, if applicable, to adjust the relevant delivery dates or schedules.
3.4. Where circumstances arise which may pose a threat to health or safety, and such circumstances were not made known to the Company in writing at the time of concluding the agreement, the Company will be entitled to charge the Customer the additional costs arising, and to where necessary, halt the activities until such time as such circumstances have been eliminated by the Customer. Delays due to such circumstances shall entitle the Company to adjust the delivery date.
3.5. Customer shall reimburse Company all travel and living expenses for Company personnel, which shall include but not be limited to travel, accommodation, meals and other expenses incurred at documented cost plus 10%, unless otherwise agreed in writing.
3.6. In the event of any on-shore standby due to circumstances out with the control of Company, Customer shall reimburse the Company all accommodation, meals and other reasonable expenses incurred at documented cost plus 10% unless otherwise agreed in writing.
4.1. The Company shall be entitled to receive payment in full (without any right of set-off, deduction, counterclaim or withholding whatsoever) on presentation to the Customer of an invoice for Work completed. Unless otherwise agreed in writing, the invoice shall be submitted on a monthly basis or on completion of the Work, whichever is the earliest and the Customer shall pay the Company within thirty (30) days from receipt of Company’s invoice.
4.2. Unless otherwise agreed in writing, payments shall be paid to the Company’s account as identified on the invoice.
4.3. As a condition of supplying the Work, or further Work, the Company may require a payment on account or in advance. Such payment in advance shall be treated as security for completion of the transaction to which it relates and may be retained by the Company if the Customer fails to pay the price in full or fails to take delivery otherwise than as a result of the Company’s default. Time shall be of the essence for payment of sums due to the Company.
4.4. Irrespective of any other remedies available to the Company, the Company shall be entitled to receive interest on any sum owed by the Customer from the date that sum was due to be paid. Such interest shall accrue and be calculated on a daily basis both before and after any decree or judgment at the option of the Company at the rate of 2% above the Bank of England Minimum Lending Rate or such maximum rate of interest permitted under law until the date on which it is actually paid and shall be compounded monthly.
5.1. Any quoted completion or delivery date is the Company’s best estimate and not a contractual commitment.
5.2. Time of delivery shall not be of the essence. Unless otherwise agreed in writing, Company shall not be liable for any losses, costs, damages or expenses incurred by the Customer arising directly or indirectly out of any failure to meet any schedule, milestone or any other estimated delivery date.
6. CUSTOMER’S PROPERTY
6.1. Any property, placed in the Company’s possession shall be held and handled entirely at the Customer’s risk without any liability on the part of the Company for any loss or damage.
6.2. The Company shall be entitled to a general as well as a special or particular lien or right of retention on any property of the Customer in the Company’s possession for all amounts whatsoever and howsoever due from the Customer to the Company, even though possession of such Goods or property may have been relinquished by the Company from time to time. Unless informed otherwise, the Company shall be entitled to assume that the Customer is entitled to subject such Goods to the Company’s lien or retention. The Company may seek to recover from the Customer all the costs and expenses of exercising its lien or right of retention including (without limitation) storage charges.
7.1. All Work under the Contract is provided without any warranty whatsoever, save as specified in this Condition 7. The Company will have no liability beyond the terms of the warranty set out in this Condition.
7.2. Warranty for Goods
7.2.1. Where Goods are supplied and fitted by Company in the course of carrying out work for the Customer, the Company warrants that such Goods are free from defects provided always that the Company may make minor changes to Goods which do not affect price or safety.
7.2.2. Should it be shown to the reasonable satisfaction of the Company within twelve (12) months from delivery that a defect has become apparent in any Goods supplied and fitted by the Company, Company shall undertake to repair or, at its option, replace, any such defective items free of charge. Company’s liability shall be limited to repair, or replacement as aforementioned, however, if the Company fails to repair or replace such Goods, Company shall refund Customer the value of such defective items.
7.2.3. The Customer shall return any Goods that it considers to be defective to Company’s facility in the U.K. at the Customer’s risk and expense. Unless otherwise agreed in writing, re-delivery of the Goods shall be at the Customer’s risk and expense. The Customer shall be responsible for retrieving or removing defective Goods or any part thereof, or for reinstalling the same when repaired or replaced or any other associated costs.
7.2.4. Where betterment results from Company’s remedial action, the Company will be permitted to invoice the Customer in respect of the value of such betterment at the Company’s standard charges.
7.2.5. In the case of Goods and parts not wholly manufactured by the Company, the Company’s liability shall be limited to the extent of its recovery from the supplier of the same under the supplier’s warranty to Company.
7.3. Warranty for Services
7.3.1. The Company warrants that it will perform all Services with reasonable care and skill in accordance with all applicable laws and regulations and/or written instructions of the Customer accepted by the Company, provided always that the Company may make minor changes to Services which do not affect price or safety.
7.3.2. If the Customer establishes to the Company’s reasonable satisfaction within six (6) months of completion of the Services that the Company has failed to comply with the warranty in Condition 7.3.1, the Company shall credit the Customer with the price paid by the Customer for the defective element of the Services in question or, at Company’s option, re-perform the defective Services free of charge.
7.4. Warranty claims made pursuant to Condition 7.2 or 7.3 will be subject to receipt by the Company (at the Customer’s cost) of a full written report of claimed defects accompanied by the relevant technical records and details of any work carried out on the Goods or Services, including the details of any storage of the Goods (if applicable).
7.5. The Company shall have no liability whatsoever under Conditions 7.2 or 7.3 if the Works concerned have been subject to misuse or neglect or not been maintained and/or operated in accordance with any applicable manufacturer’s manual or instructions applicable to the Works or if the Works have been removed, repaired or altered without the Company’s prior approval. For the purposes of Conditions 7.2 and 7.3, the Company shall not be liable to the Customer for any offshore transportation costs or for the costs of offshore accommodation and messing.
7.6. If a warranty claim is accepted by the Company and rectification work carried out, the applicable Company warranty period specified in Condition 7.2 or 7.3 may, at the Company’s sole discretion, be extended by the period of time taken to carry out such work. If a warranty claim is rejected the Company may invoice the Customer for work carried out to investigate the claim.
7.8. The warranties in this Condition 7 are given in lieu of and replace, exclude and extinguish all and every condition, warranty or representation whatsoever whether express or implied by statute, common law, trade usage, custom and otherwise in respect of the quality or fitness for purpose, description of Goods, standard of Services/workmanship or otherwise. Additionally, the General Product Safety Regulations 1994 shall not apply to any Goods supplied for repair or reconditioning before use.
8. INDEMNITY AND INSURANCE
8.1. Company shall be responsible for and shall save, indemnify, defend, and hold harmless the Customer Group from and against all claims, losses, damages, costs (including without limitation legal costs), expenses, and liabilities in respect of:
8.1.1. subject to Section II of these Conditions, loss of or damage to property of Company Group, whether owned, hired, leased or otherwise provided by the Company Group arising from, relating to or in connection with the performance or non-performance of the Contract;
8.1.2. personal injury including without limitation death or disease of any person employed by Company Group arising from, relating to or in connection with the performance or non-performance of the Contract; and
8.1.3. any claim of whatsoever nature arising from pollution originating from Company’s equipment or property.
8.2. Customer shall be responsible for and shall save, indemnify, defend, and hold harmless the Company Group from and against all claims, losses, damages, costs (including without limitation legal costs), expenses, and liabilities in respect of:
8.2.1. loss of or damage to property of Customer Group, whether owned, hired, leased or otherwise provided by the Customer Group arising from, relating to or in connection with the performance or non-performance of the Contract;
8.2.2. personal injury including without limitation death or disease of any person employed by Customer Group arising from, relating to or in connection with the performance or non-performance of the Contract; and
8.2.3. subject to Conditions 8.1.1 and 8.1.2, any claim of whatsoever nature arising from pollution or contamination other than specified in Condition 8.1.3 above, including but not limited to pollution originating from the well or hole, pipelines, reservoirs, platforms or other property located at the worksite.
8.3. For the purposes of this Condition 8.3 the expression “Consequential Loss” shall mean:
(a) consequential or indirect loss under Scots Law; and
(b) loss and/or deferral of production, loss of product, loss of use, downtime of any plant, pipelines, vessel or facilities, loss of revenue, profit or anticipated profit (if any), in each case whether direct or indirect to the extent that these are not included in Condition 8.3 (a), and whether or not foreseeable at the effective date of commencement of the Contract.
Notwithstanding any provision to the contrary elsewhere in the Contract and except to the extent of any agreed liquidated damages (including without limitation any predetermined termination fees) provided for in the Contract, the Customer shall save, indemnify, defend and hold harmless the Company Group from the Customer Group’s own Consequential Loss and the Company shall save, indemnify, defend and hold harmless the Customer Group from the Company Group’s own Consequential Loss, arising from, relating to or in connection with the performance or non-performance of the Contract.
8.4. Notwithstanding Condition 8.1.1, where any equipment, tooling or similar is provided by Company without personnel on a hire basis, Customer shall be responsible for all loss of or damage to such equipment, tooling or similar from the date of departure from point of origin until the date of return to the same, except to the extent such loss or damage results from Company’s negligence. In the event of such loss or damage the Customer will, at Company’s option, either (i) reimburse Company all costs incurred by Company to repair and restore the equipment, tooling or similar to its condition prior to being damaged, covering all costs of repair, including transportation, or (ii) pay Company an amount equal to the replacement cost of such equipment, tooling or similar.
8.5. All exclusions and indemnities given under this Condition 8 and its subsections 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.
8.6. The Company and the Customer shall each maintain sufficient levels of insurance to cover their respective liabilities and obligations under these Conditions including but not limited to any mandatory statutory limits under applicable law.
9. EXCUSABLE DELAY
9.1. The Company shall not be liable for any loss or damage arising as a direct or indirect result of the failure to perform or delay in performing any of its obligations under the Contract or be in breach of an agreement with the Customer as a result of the occurrence of any circumstance or event beyond its control, including, without limitation, failure to receive or delay in receipt of the Customer’s goods, acts of God, fire, flood, storm, civil disturbance, explosion, power failure or reduction of power supplies, acts, orders or requirements of any governmental or regulatory body, lack or shortage of materials or parts, inability to procure or delay in procuring equipment and materials from its normal suppliers, mechanical breakdown or strike, lock-out or labour dispute, and the action or inaction of any government or other competent authority or the refusal of any licence, certificate or permission.
9.2. If the Company cannot complete any Services or supply any Goods for any of the reasons mentioned in Condition 9.1 for a period of thirty (30) days, each party’s obligations to the other will terminate on written notice of either party and the Company shall be paid in proportion to the amount of completed Goods delivered and/or Services performed and, once paid, shall deliver any remaining Goods in its possession to the Customer.
9.3. The Company shall as soon as reasonably practicable give the Customer notice of any such event as is mentioned in Conditions 9.1 and 9.2 which may cause the Company to be unable to perform its obligations on time or at all. This Condition 9 shall not apply to the Customer’s payment obligations.
10.1. If any of the events in (a) to (e) listed below occur, all sums outstanding to the Company shall become immediately due and payable and the Company may elect to proceed with the performance of any Contract subsisting with the Customer or to treat such Contracts as discharged:
(a) the Customer breaches any of its obligations to the Company; or,
(b) the Customer wrongfully stops payment of any debt or is deemed to be unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 or its equivalent in any jurisdiction); or,
(c) a receiver, liquidator, trustee, encumbrancer or similar officer is appointed over the whole or any substantial part of the Customer’s undertaking, property or assets or if a petition is presented for the appointment of an administrator of the Customer; or,
(d) the security of any of the Customer’s secured obligations is enforced or any distress, execution, sequestration or other process is levied or enforced on or taken out against the Customer; or,
(e) the Customer enters into or offers to enter into any arrangements or composition for the benefit of its creditors; or,
(f) provisions equivalent to (c), (d) or (e) in any other system of law or jurisdiction apply to the Customer.
In the case of such Contracts being treated as discharged, the Customer shall remain liable to indemnify the Company against all costs incurred by the Company in connection with such Contracts until their discharge.
10.2. Unless otherwise agreed in writing, either party may terminate the Contract upon not less than fourteen (14) days’ written notice to the other party. Upon expiry of such notice, Company shall immediately cease all Work.
10.3. In the event of termination under Conditions 10.1 or 10.2, the Customer shall pay the Company for the Work performed up to the date of termination. In addition, where the Customer has terminated the Contract under Condition 10.2, the Customer shall pay to Company:
(a) all reasonable and verifiable amounts, plus 10%, properly paid in settlement of subcontractors, vendors and materials ordered by the Company for use in connection with the Contract.
(b) with regards to personnel, the Customer shall pay Company the Contract rates until return of the same to the point of origin and any applicable stand-by costs, unless otherwise agreed in writing.
(c) with regards to Goods, all sums due to the Company in respect of Goods already supplied to the Customer and all sums due to the Company in respect of Goods ordered by the Customer but yet to be delivered and supplied to the Customer.
11. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
11.1. The Customer warrants that any design or instructions furnished by it shall not cause the Company to infringe any letters patent or other intellectual property right. Neither the Company nor the Customer shall have the right to use other than for the purpose of the Contract, whether directly or indirectly, 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, copyright, proprietary right or confidential know how, trademark or process. Where any potential patent, and / or any registrable right in any country in the world results from developments by the Company, whether in connection with the Contract or otherwise, all such rights shall vest in the Company.
11.2. Any information received by one party from the other shall be treated as confidential by the receiving party and shall not be divulged by the receiving party, its servants or agents to any person, firm or corporation (always excepting its own directors, employees, servants and agents but only to the extent necessary and subject to the same restrictions), except where authorised in writing by the party providing such information.
12.1. The Contract constitutes the entire agreement between the parties hereto and supercedes all prior negotiations, representations or agreements related to the Contract.
12.2. The Customer acknowledges that it has not relied on any statement, promise or representation given by or on behalf of the Company which is not set out in the Contract.
12.3. Neither party shall be entitled to assign or novate any of its rights or duties or sub-contract the whole or part of the Contract without prior written consent of the other.
12.4. No amendment or variation of the Contract shall be effective unless it is made or confirmed in a written document signed by an Authorised Representative of both parties.
12.5. If any provision of this Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability shall not affect the other provisions of this Contract and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties agree to attempt to substitute, for any invalid or unenforceable provision, a valid or enforceable provision which achieves to the greatest possible extent, the economic, legal and commercial objectives of the invalid or unenforceable provision.
12.6. Any release, delay or waiver by the Company in favour of the Customer of any (or part of any) of its rights, power or privileges under the Contract shall only be binding if it is given in writing. Any binding release, delay or waiver shall:
12.6.1. be confined to the specific circumstances in which it is given;
12.6.2. not affect any other enforcement of the same right or the enforcement of any other right by or against any of the parties; and
12.6.3. be revocable at any time in writing.
12.7. Headings are included for convenience only and shall not affect the interpretation or construction of these Conditions. In these Conditions, unless the context requires otherwise, references to a statute or statutory provision includes any consolidation, re-enactment, modification or replacement of the same and any subordinate legislation in force under the same from time to time; the masculine, feminine or neuter gender includes the other gender, references to the singular includes the plural (vice versa) and any reference to persons includes firms, corporations and unincorporated associations.
12.8. Insofar as it is possible to do so, the provisions of the United Nations Convention on Contracts for the International Sale of Goods are excluded from any contract for sale of goods between the Company and the Customer.
12.9. Conditions 4, 5, 6, 7, 8, 9, 10, 11, 12.2, 12.6, 12.9, 13, 14 and 15 (and in respect of the sale of Goods, also Conditions A.2, A.3, A.4, B and C) shall continue to have effect notwithstanding the termination of the Contract.
13. EXPORT CONTROL
13.1 The Contract shall be subject to all applicable export control laws and regulations whether enforceable or not and in particular, but without prejudice to the generality, those of the United Kingdom, the European Union and any other laws or regulations that apply from time to time in relation to any specific subject matter or person (whether a natural person or not).
14. LAW AND JURISDICTION
14.1. The Contract, and any non-contractual rights and obligations arising out of or in connection with it and its subject matter, shall be governed and construed in accordance with Scots law.
14.2. The parties agree that the Scottish Courts shall have non-exclusive jurisdiction to adjudicate in any dispute which arises out of or in relation to these Conditions.
15. LIMITATION ON LIABILITY
15.1. Company’s cumulative liability, irrespective of negligence, shall be limited to one hundred percent (100%) of the value of the Contract. Provided, however, that the limitation under this Condition 15 shall not apply to any of the liabilities assumed by Company under Condition 8.1.
15.3. To the extent allowable under applicable law, any exclusion or limitation of liability under the Contract shall exclude or limit such liability not only in contract but also in tort or otherwise at law.
15.4. Subject to the provisions of Condition 8.3, this Condition 15 shall apply notwithstanding any provisions to the contrary elsewhere in the Contract.
ADDITIONAL CLAUSES APPLICABLE
In no event shall CONTRACTOR be responsible or liable for any failure or delay in the performance of its obligations and or the obligations of any suppliers or subcontractors of CONTRACTOR or carriers engaged by CONTRACTOR as a result of any unexpected and disruptive events caused by the COVID-19 outbreak or the virus that causes it (SARS Cov 2). CONTRACTOR will be entitled to charge any unavoidable additional costs that may be incurred as a result of any disruption caused by the COVID-19 outbreak.
SECTION 2 – SUPPLY OF GOODS
In addition to the terms under Section I, the following clauses shall apply specifically to the sale of Goods:
A.1. The Company fulfils its obligation to deliver when it makes the Goods available to the Customer or the Customer’s agent for collection at the Company’s premises. At the request of the Customer and at the Customer’s expense, the Company will arrange for the carriage of Goods to a location other than the Company’s premises, but the Company shall have no liability for any loss of or damage to the Goods whilst in transit nor for any act or omission (negligent or otherwise) of any third party in connection with such carriage.
A.2. Risk in the Goods shall pass to the Customer upon delivery to the Customer at the Company’s premises or at any other agreed location.
A.3. If the Customer fails to take delivery of any Goods within seven (7) days of the Company giving written notice that they are ready for collection, the Company shall be entitled, at its sole discretion, to store such Goods at the Customer’s expense and/or to resell all or any part of such Goods without prejudice to any other right or remedy of the Company.
A.4. Where delivery of Goods to the Customer is to be by instalment, each instalment shall constitute a separate contract. Any defect or failure in delivery of one or more instalments shall not entitle the Customer to cancel any other instalment.
B. PASSING OF PROPERTY
B.1. Title to the Goods supplied (whether on their own or with or as part of performance of Services and whether separate and identifiable or incorporated in or mixed with other goods) by the Company to the Customer shall remain with the Company until full payment has been received of any and all sums due and outstanding by the Customer to the Company at the time of delivery, whereupon the Customer shall take title to the Goods with full title guarantee and if possession of any Goods has been given to the Customer before title has passed, the Customer shall hold such Goods as trustee for the Company and shall store them in such a way as to enable them to be identifiable as property of the Company and not encumber them in any way until full payment has been made.
B.2. While acting as trustee of any Goods on behalf of the Company, the Customer shall on demand immediately notify the Company of the whereabouts of the Goods and give the Company, its employees and agent’s free access to them.
B.3. If the Company gives the Customer written notice that the Company has reasonable grounds for believing that any of the events set out in Section I – Condition 10.1 above has occurred or is about to occur, or that the Customer is in breach of any of the terms of the Contract or if the Company considers with reasonable cause that the Goods may be in jeopardy, the Customer’s authority to possess the Goods of which it is trustee shall automatically end and all such Goods and any other property of the Company shall be immediately re-delivered to the Company or surrendered to the Company.
B.4. To the extent permitted in law, the Company’s title in the Goods shall not be affected by any stipulation or rule of law that the Goods become part of any equipment, platform, rig, or any other equipment or facility.
C. CUSTOMER’S PROPERTY
C.1. If any amount due from the Customer is outstanding for more than thirty (30) days after written demand for payment being made by the Company, the Company may sell on such terms and at such price as it considers reasonable any of the Goods in its possession. The Customer shall give to the Company such assistance, including the delivery of any relevant documents, for the purpose of completing such sale. The Company shall apply the proceeds of sale firstly in payment of all costs and expenses incurred by the Company in connection with the sale, including (without limitation) storage, management time, legal and other professional costs and charges and secondly in total or partial satisfaction of such amount owed by the Customer. If any shortfall arises, the Customer shall pay such shortfall on demand. If a surplus arises, the Company shall pay such excess to the Customer. A certificate from the Company’s Finance Director will be deemed to be conclusive between the parties as to the disbursement of the proceeds of any sale.