Terms of Purchase
GENERAL TERMS & CONDITIONS FOR SALE OF PRODUCTS, PARTS AND/OR SERVICES
NOTICE: Any purchase by Buyer of Products, Parts and/or Services from Seller is subject to these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly objected to and shall not be binding upon Seller unless expressly accepted in writing by Seller. Any order for Products, Parts and/or Services shall constitute Buyer's acceptance of these Terms and Conditions.
1. DEFINITIONS
"Affiliate" means with respect to either Party an entity (including without limitation any individual, corporation, partnership, limited liability company, association, or trust) that directly or indirectly controls, is controlled by, or is under common control with, such Party. The term "control" as used in the preceding sentence means the power to direct or cause the direction of the management and policies of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. An entity shall conclusively be presumed to control any other entity if it directly or indirectly owns more than 50% of the entity's outstanding equity shares or interests or more than 50% of the outstanding securities entitled to vote in elections of the entity's directors or managers.
"Applicable Data Protection Laws" mean all data protection laws and regulations that apply to this Agreement including but not limited to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). For the purposes of this Agreement the words "controller", "data subject", "personal data", "personal data breach", "processing", "processor" have the meanings given in the Applicable Data Protection Laws.
"Applicable Law" or "Applicable Laws" means any law, statute, order, decree, rule, injunction, license, permit, consent, approval, agreement, regulation, judgment or legislative or administrative action of a competent governmental authority, which applies to the sale of Products, Parts and/or provision of Services.
"Buyer" means the entity purchasing Products, Parts and/or Services and its successors and permitted assigns.
"Buyer Taxes" means all taxes, duties, fees, and other charges of any nature (including, but not limited to, ad valorem consumption, excise, franchise, gross receipts, import, export, license, property, sales and use, stamp, storage, tariffs, transfer, turnover, value-added taxes ("VAT"), or other similar taxes, and any and all items of deficiency, penalty, addition to tax, interest, or assessment related thereto), imposed by any governmental authority of any country (or any political subdivision thereof) in connection with the execution or performance of the Contract, but excluding Seller Taxes.
"Claims" means any and all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs, and expenses (including, without limitation, attorneys' fees and costs of litigation) of any kind or character.
"Consequential Loss" means (i) whether direct or indirect, and whether or not foreseeable at the time of entering into the Contract or at the time of commencing performance: any loss, delay or interruption of business, profits, revenue, production or opportunity; loss of goodwill or reputation; loss of product, use or equipment; standby time (other than standby time payable to Seller pursuant to the Contract); rig, vessel, or other facility or equipment downtime; cost of capital; cost of substitute equipment, facilities, services or replacement power; overhead; and (ii) any special, punitive, exemplary, incidental and/or consequential damages or losses; and/or (iii) Claims of a Party's customers for any of the above losses, costs or damages.
"Contract" means either the contract agreement signed by both Parties or the Purchase Order signed by Buyer and expressly accepted by Seller in writing, together with (i) these Terms and Conditions, (ii) any other documents incorporated by reference in any of the foregoing, (iii) the Proposal, and (iv) any agreed scope of work for the sale of Products, Parts, and/or Services.
"Contract Price" means the aggregate amount to be paid by Buyer to Seller for the purchase of Products, Parts and/or Services, as stated in the Contract, and any agreed adjustments to the same.
"Delivery" means when the Products and/or Parts, as applicable, have been delivered according to the applicable Incoterm (2020). "Deliver" and "Delivered" shall be construed accordingly.
"EU Model Clauses" mean the Standard Contractual Clauses (SCC) or any subsequent version for the transfer of Personal Data to Processors or Controllers established in third countries which do not ensure an adequate level of data protection, as approved, amended or replaced by the European Commission from time to time.
"Force Majeure" means an event or cause that is unpredictable, irresistible, and beyond the reasonable control of the Party claiming Force Majeure, which could not have been avoided or prevented, including but not limited to acts of God, war (declared or undeclared), sanctions related to war, insurrections, hostilities, natural or man-made disasters, strikes or lockouts, governmental interference or action, epidemic or pandemic (e.g., COVID-19), earthquake, flood, severe weather or named storms, fire, explosion, and/or other natural physical disaster, severe delay in transportation, severe car shortage, or inability to obtain necessary materials, components or services. For the avoidance of doubt, financial distress or the inability to make payment of monies when due shall not be a Force Majeure event.
"Group" means with respect to either Party, such Party, its Affiliates, and in connection with the project to which the Products, Parts and/or Services relate, its joint venture partners, joint interest owners, co-lessees, consortium members and/or other partners, and, in respect of Buyer only, the Site owner, end user, and/or Site operator; and for all of the above, also its and their contractors and subcontractors of any tier in connection with the said project, as well as the shareholders, officers, directors, employees, invitees, agents, and consultants of all of the foregoing. "Buyer Group" and "Seller Group" shall be construed accordingly. Seller Group does not include any member of Buyer Group and Buyer Group does not include any member of Seller Group.
"Hazardous Materials" means any chemical, substance, material, waste or emission defined, classified or regulated as hazardous or toxic, or as a pollutant, contaminant, or threat or potential threat to human health, safety or the environment under Applicable Law, including but not limited to naturally occurring radioactive material, hydrocarbons, asbestos, lead, hydrogen sulphide or polychlorinated hydrocarbons, including biphenyls and biphenols.
"Parts" means the spare or repaired parts required in relation to the Product, identified by Seller in the Contract.
"Party" means either Buyer or Seller individually, and "Parties" shall mean both Buyer and Seller.
"Products" means all equipment, materials, supplies, software, products, and other goods (excluding Parts) as applicable, sold under the Contract.
"Proposal" means Seller's formal written offer to provide the Products, Parts and/or Services, and any mutually agreed written amendments thereto.
"REGARDLESS OF CAUSE OR ACTION" MEANS (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW), REGARDLESS OF: CAUSE, FAULT, DEFAULT, NEGLIGENCE IN ANY FORM OR DEGREE, STRICT OR ABSOLUTE LIABILITY, BREACH OF DUTY (STATUTORY OR OTHERWISE) OF ANY PERSON, INCLUDING OF THE INDEMNIFIED PERSON, UNSEAWORTHINESS OF ANY VESSEL, AND/OR ANY DEFECT IN ANY PREMISES/VESSEL; FOR ALL OF THE ABOVE, WHETHER PRE-EXISTING OR NOT AND WHETHER THE DAMAGES, LIABILITIES, OR CLAIMS OF ANY KIND RESULT FROM CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL OR STRICT LIABILITY, QUASI CONTRACT, LAW, OR OTHERWISE.
"Purchase Order" means the document named as such, or such other similar name e.g., work order, and setting forth the key particulars of the transaction(s) contemplated under the Contract.
"Seller" means the named HMH entity signing the Contract, and its successors and permitted assigns.
"Seller Taxes" means all corporate income taxes imposed on Seller and any taxes imposed on Seller's employees in connection with the execution of the Contract or the performance of or payment for work hereunder by Applicable Laws.
"Services" means all the activities, including, without limitation, technical assistance and guidance, training, repairs, and remote diagnostics, to be provided by Seller under the Contract.
"Site" means the premises and/or vessel where Parts or Products are used or meant to be used and/or Services are performed or meant to be performed, not including any of Seller Group's premises.
2. Delivery, Transfer of title & Risk, Storage, LIQUIDATED DAMAGES
2.1 Delivery. Unless otherwise provided in the Contract and in accordance with Incoterms 2020, Seller shall Deliver the Products and/or Parts or spare Parts, as applicable and at Seller's discretion, to Buyer either: (i) FCA Seller's facility, place of manufacture or warehouse for Products, and/or (ii) Ex-Works Seller's facility, place of manufacture or warehouse. Seller is entitled to bill the Buyer upon notification of shipment. Seller has the right to charge Buyer reasonable storage fees if Buyer fails to pick up the Products, and/or Parts within 45 days from Delivery (i.e., once Seller makes the Products, and/or Parts available for pickup and/or places them on site in a clearly marked area designated for customer property).Partial Delivery and Delivery in advance of the Delivery schedule shall be permitted.
2.2 Transfer of Title and Risk. Subject to Article 2.3, title and risk of loss to Products, and/or Parts shall pass upon Delivery as provided in Article 2.1. Title and risk of loss to Products and/or Parts to be shipped to a Delivery destination directly from countries different from Seller's country of incorporation (drop shipment), shall pass immediately after each item departs from the territorial land, seas and overlying airspace of the sending country. For the avoidance of doubt, Seller or its relevant Group member shall retain title to any equipment leased to Buyer Group.
2.3 Storage. If any of the Products and/or Parts cannot be shipped to Buyer in accordance with the agreed upon Delivery terms due to any cause not attributable to Seller Group, upon prior notice to Buyer, Seller may store such Products and/or Parts on site in a clearly marked area designated for customer property, or ship them to outside storage, in which case: (i) any amounts otherwise payable to Seller upon Delivery or shipment shall become payable upon presentation of a certification specifying the cause and place of storage (any payment security shall allow payments upon presentation of notice to storage instead of transport documents); (ii) all expenses incurred by Seller Group, such as for preparation and placement into storage, handling, inspection, preservation, insurance, removal charges, and any taxes shall be reimbursed or paid by Buyer upon submission of Seller's invoice(s); and (iii) when reasonably possible and upon payment of all amounts due hereunder but no later than the lesser of (a) the statutory period provided to receive the VAT or similar tax export or discharge exemption or (b) sixty (60) calendar days, Seller shall be entitled to resume Delivery of the Products and/or Parts to the agreed point of Delivery, as provided in Article 2.1. Title and risk of loss shall pass when Products and/or Parts are Delivered as provided in Article 2.2. The terms of Articles 2.1 and 2.3 shall also apply in the event any Buyer equipment repaired at Seller Group's facilities cannot be shipped to or received by Buyer in accordance with the agreed upon terms, provided that, in the case of Buyer equipment to be repaired at Seller Group's facilities, Buyer shall retain title to, and risk of loss for, any such equipment at all times.
2.4 In the event Buyer: (i) ships its equipment to be serviced to any of Seller Group's facilities prior to, or without, issuance of a Purchase Order by Buyer and/or receipt by Seller of a valid Purchase Order prior to the end of the Proposal's validity period; or (ii) fails to retrieve its equipment from Seller Group's facility, after completion of the services, within the contractually agreed time; then Seller shall have the right, in both (i) and (ii) to require Buyer to retrieve its equipment from Seller Group's facility upon providing to Buyer at least seven (7) days prior written notice. If after the notice period Buyer's equipment remains at Seller Group's facility, Seller may, at its option, store the equipment on site in a clearly marked area designated for customer property, or in any third party storage, in which case all costs and expenses incurred by Seller, including in respect of preparation and placement into storage, handling, inspection, preservation, insurance, removal charges, and any taxes shall be reimbursed or paid by Buyer upon submission of Seller's invoice for any such costs and expenses. If Buyer fails to timely pay such costs and expenses (or any undisputed portion thereof) within 90 days of the invoice date, and subject to 15 days prior written notification by Seller of such default, the equipment shall be deemed abandoned by Buyer, and Seller shall have the right to sell or dispose of such equipment as it sees fit and retain the proceeds.
2.5. Delay & Liquidated Damages. In the event of a delay in the Delivery of Products and/or Parts beyond the contractually agreed Delivery date, if such Delivery is solely due to Seller and is not a Force Majeure event, or otherwise excused under the terms of the Contract, Seller Group shall only be liable for the following liquidated damages: 0.5% of the price of the delayed item for each week of delay, cumulatively up to a maximum amount of 5% of the overall portion of the Contract Price allocable to the delayed Products or Parts. The Parties further agree that no liquidated damages or damages according to law shall be assessed against Seller for delayed Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT (i) SUCH LIQUIDATED DAMAGES ARE NOT A PENALTY AND REPRESENT A FAIR AND REASONABLE ESTIMATE OF THE DAMAGES BUYER GROUP MAY SUFFER AS A RESULT OF DELAY, (ii) SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE THE SOLE AND EXCLUSIVE LIABILITY OF SELLER GROUP AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER GROUP FOR DELAY, AND (iii) NO LIQUIDATED DAMAGES ARE DUE OR OTHERWISE PAYABLE UNLESS BUYER HAS SUFFERED DIRECT ECONOMIC HARM AS A RESULT OF SUCH DELAY.
2.6 Free Issue Equipment. If Seller's performance is dependent upon the receipt, at Seller's facility, of Buyer's equipment and if Seller's delivery or performance is delayed due to late delivery or non-delivery of the Buyer's supplied equipment, Seller shall have the right to invoice for the work performed, or in accordance with the payment milestones.
3. FORCE MAJEURE & Excusable Delays
3.1 Neither Party shall be liable for delay or considered in breach or default of its obligations hereunder, except for the payment of monies when due, if and for so long as such delay or breach or default is due to (i) a Force Majeure event or (ii) in the case of Seller, acts or omissions of Buyer Group, including failure to timely provide Seller Group with any access, information, tools, material, and approvals necessary to permit Seller Group to timely perform the required activities, and including, without limitation, unknown physical conditions at the Site of an unusual nature and differing materially from those ordinarily encountered and generally recognized as occurring in the work of the character provided for in the Contract. The impacted Party shall promptly notify the other Party in the event of a delay under this Article 3. The Delivery or performance dates shall be extended for a period equal to the time lost by reason of such delay, plus such additional time as may be reasonably necessary to overcome the effect of such delay. If Seller is delayed by acts or omissions of Buyer Group, or by the prerequisite work of Buyer's other contractors, Seller shall also be entitled to an equitable price adjustment. Under no circumstances shall Buyer's payment obligation be deemed excusable under this Article 3.
3.2 If a Force Majeure event and/or delay excused by this Article 3 extends for more than 90 days and the Parties have not agreed upon a revised basis for resuming work, including an equitable price adjustment, then either Party (except where such delay is caused by Buyer Group, in which event only Seller), upon 30 days prior written notice may terminate the Contract with respect to the unexecuted portion of the work. In the event of a delay under Article 3.1(ii), the terms of Article 11.2 shall apply in full. In the event of a delay under Article 3.1(i), Buyer shall pay Seller the pro-rated Contract Price for all work performed before the effective date of termination.
4. WARRANTY
4.1 Warranties. Subject to the limitations set forth in the Contract, including for the avoidance of doubt in this Article 4, Seller warrants to Buyer that: (i) the Products and/or Parts shall be Delivered free from defects in material, workmanship and title; and (ii) the Services shall be performed in a competent and diligent manner in accordance with any mutually agreed specifications. Except for Products and/or Parts provided by Seller's Affiliates, any Parts not manufactured by Seller (including incidental materials and consumables used in the Services) shall carry only the warranty provided by the original manufacturers, and Seller gives no warranty for such Products and/or Parts. The warranty in this Article 4 does not extend to Products and/or Parts used with components which are not manufactured or approved by Seller.
4.2 Warranty Periods. Except for Inspection Services or unless otherwise agreed in the Contract, the warranty period ("Warranty Period") shall be as follows: (i) in the case of Products and/or Parts, 12 months from Delivery, or from the date of notice that the Products and/or Parts are ready for shipment, if the Delivery cannot take place for reasons not attributable to Seller Group, or from the date of notice that the Products and/or Parts are put into storage under Article 2.3, whichever occurs first; (ii) for Services, 6 months from completion of the Services; and (iii) for repaired or replaced Products and/or Parts, or re-performed Services, 6 months after repair/replacement or re-performance, provided that Seller Group's warranty obligations shall in all cases terminate and in no event extend beyond 18 months after Delivery or placement into storage of the original Products and/or Parts or performance of the initial Service.
4.3 Remedies. If Products, Parts, and/or Services do not meet the above warranties during the applicable Warranty Period, Seller's sole and exclusive liability shall be to either re-perform the defective Services, or repair or replace the defective component of the Products and/or Parts, at Seller's option. Seller shall not be obligated to re-perform the defective Services, or repair or replace the defective component of the Products and/or Parts, unless Buyer informs Seller in writing within 5 days of discovery of such defects. If Buyer fails to timely notify Seller, the Buyer shall no longer have the right to have the defect remedied and the Products and/or Parts are deemed to have been accepted as Delivered. Seller Group shall not, under any circumstances, be liable for defects that arise or are discovered after expiration of the Warranty Period.
4.4 Seller shall be responsible for transporting defective Products and/or Parts only from Seller's facility to and from the original Delivery point. Buyer shall be responsible for all other transportation and any customs formalities, costs and taxes connected with any export to Seller or import of goods sent back to Buyer.
Seller may process a warranty claim by providing Buyer a notification to mark the Products and/or Parts to be returned to Seller for investigation. Seller will handle the warranty claim as a regular spare-parts order until the Products and/or Parts are returned to Seller or inspected by personnel authorized by Seller, and the possible warranty claim is approved or rejected. Seller will issue a credit note for the value of the Products and/or Parts if and when the warranty claim is approved.
4.5 Seller shall not be liable for (i) accessing, retrieving, removing, or decontaminating defective Products and/or Parts, or for reinstalling repaired or replacement Products and/or Parts, or for any costs, damages, or losses incurred in connection with any of the above operations; (ii) reconnection, recalibration, and/or rectification of objects other than the Products and/or Parts; (iii) all travel costs (including, but not limited to board and lodging at Buyer's Site), travel time and standby time in connection with any repair/warranty work; (iv) heavy lift operations, cranes and scaffolding; (v) gaining access to the area for rectification work; or (vi) any work or repairs performed by Buyer, any third party engaged by Buyer, or any party other than a member of the Seller Group.
4.6 Regarding any offshore repair/replacement/warranty work performed by Seller, Seller shall not be liable for (i) extra costs associated with work performed under the water line; (ii) Transportation of Seller's personnel and their equipment from and to the offshore Site; (iii) any rig or vessel; and (iv) Buyer shall be responsible for any transportation-related expenses in relation to any repaired or replaced Products and/or Parts after arrival at Buyer's shore base or helicopter base.
4.7 Seller does not warrant the Products, Parts or any repaired or replacement item against: normal wear and tear, including due to environment, excessive operation at peak capability, misuse, accident, modification, heating, machining, bending, welding, alteration of any kind, or operation under conditions more severe than, or otherwise exceeding those set forth in, the specifications for the relevant Product or Part. The warranties and remedies set forth herein are further conditioned upon: (i) proper storage, installation, use, operation, and maintenance of the Products and/or Parts, as applicable, and conformance with the operation instruction and installation manuals (including revisions thereto) provided by Seller Group; (ii) Buyer keeping accurate and complete records of operation and maintenance during the Warranty Period and providing Seller access to those records; and (iii) repair or modification pursuant to Seller's instructions and approval.
Failure to meet the conditions in this Article 4.7(i) renders the warranty provided by the Seller null and void.
4.8 Parts, Products and Services shall be subject to Seller's stated manufacture variations. All tables published by Seller are based upon information believed reliable; however, Seller does not guarantee accuracy of the same. All measurements and weights set forth in such tables are subject to reasonable tolerance variations. With respect to any tubular goods acquired by Buyer from Seller, Buyer agrees to handle such goods in accordance with API Publication RP 5C1, Care and Use of Casing and Tubing, including without limitation § 6.3 thereof.
4.9 Inspection Services. Buyer understands that any Services provided by Seller consisting of inspection and recertification of Buyer's installed equipment and associated reports, deliverables, analysis (collectively "Inspection Services") delivered or recommendations or advice given in connection with the Inspection Services by Seller Group under this Contract will not be received as a warranty of the quality, functioning, state of repair or repair needs, capacity or fitness for use of such equipment. The Buyer shall release, defend, indemnify, and hold harmless Seller Group against any liability to third parties (including any owners or operators of a drilling system platform or vessel that are not parties to this Contract) that may arise from reliance upon or application or use of the Inspection Services. Seller shall not be liable for any deficiency in the documentation, inspection report or other deliverables produced or arising from the Inspection Services however caused unless notified by Buyer within 30 days of delivery of such documentation or deliverables, and in such case Seller's exclusive warranty, liability and obligation for any such deficiencies shall be limited to reperformance of the Inspection Services.
4.10 Sole and Exclusive; No Implied Warranties. THE REMEDIES SET FORTH IN THIS ARTICLE 4 CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY FAILURE OF, OR ANY DEFECT OR NON-CONFORMITY IN, THE PRODUCTS, PARTS, AND/OR SERVICES, REGARDLESS OF WHEN THE FAILURE, DEFECT OR NON-CONFORMITY ARISES AND REGARDLESS OF CAUSE OR ACTION. THE WARRANTIES SET FORTH IN THIS ARTICLE 4 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, AND GUARANTEES, WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
4.11 All Products and/or Parts Delivered shall conform to Seller's part or version number specified in the Contract, or its equivalent or the superseding number subsequently assigned by Seller. If the number ordered is no longer available, Seller is authorized to provide a valid interchangeable Part without notice to Buyer.
5. INSPECTION & FACTORY TESTS
The quality control exercised by Seller in its manufacture of Products and/or Parts shall be in accordance with Seller's normal quality control policies, procedures and practices. Unless otherwise expressly agreed in the Contract, Seller shall attempt to accommodate Buyer's requests to witness Seller's factory tests of Products and/or Parts, but only if such witnessing can be arranged without delaying the work. Access to Seller Group's premises shall be limited to normal business hours and areas directly concerned with the Products and/or Parts, excluding in all cases areas where work of a proprietary or confidential nature is conducted.
6. CHANGES
6.1 Change by a Party. Each Party may at any time propose changes in the schedule or scope of Parts, Products and/or Services in the form of a draft change order. Neither Party is obligated to proceed with the changed schedule or scope until both Parties agree to such change in writing. Unless otherwise agreed by the Parties, pricing for additional or modified work arising from such changes shall be at time and material rates.
6.2 Change in Law. Seller is entitled to an equitable adjustment to the Contract Price and the Delivery schedule to reflect any additional costs and other impact incurred by Seller Group as a result of a change in Applicable Law or applicable standards (including, but not limited to API, DnV or other classification society) and regulations, including changes in the interpretation thereof, after entering into the Contract. The same applies if it is or becomes prohibited for the Seller, in any applicable jurisdiction, to perform any of its obligations under the Contract due to any new and/or existing sanction laws, embargo, export control laws or regulations and/or other similar measures. In the event any such change prevents Seller Group from executing its obligations without breaching Applicable Law or makes Seller's execution of its obligations unreasonably burdensome or unbalanced, Seller shall also have the right to withdraw the Proposal or terminate the Contract without any liability.
7. INVOICES
7.1 Sales invoicing procedures will commence in accordance with the agreed invoicing milestones in the Contract, or if no agreed milestones, in accordance with the Incoterms of the Contract (as provided for in Article 2.1). Buyer shall ensure all required internal procedures to receive and pay the related invoice(s) are in line with the agreed Incoterms, milestones and payment terms set out in the Contract.
7.2 For rental and service transactions, invoicing procedures will commence on the earlier of job completion or 1-month intervals from the first chargeable day. Buyer shall ensure any formal approval process they require can be carried out within the agreed payment terms and (if required by the Contract) will review and approve any evidence, field tickets or work tickets, pro-forma invoices (or equivalent) within 3 days of receipt of the same. If Buyer does not request clarification of such evidence, field ticket, work ticket, pro-forma invoice (or equivalent) within such 3 day period, such documentation will be deemed accepted and Seller shall be entitled to submit the invoice(s). Buyer shall not impose restrictions on the submission of invoices to certain days of the week or month.
7.3 Unless otherwise agreed in the Contract, all invoices submitted to Buyer will be in English. All invoices issued to Buyer will be sent electronically via email or approved electronic exchange service. In the event Buyer is utilizing invoicing electronic exchange services and Seller is unable to submit invoices through the service due to Buyer's technical issues, Seller shall immediately notify Buyer using the email address stated in the Contract and, if the issue is not resolved within 3 working days from the date of notification, Seller shall submit the invoice by email.
7.4 Seller shall be entitled to issue invoices to Buyer for partial deliveries or services performed under the Contract. Subject to Article 8.2, Buyer shall make full payment of all invoices in accordance with the payment provisions set out in Article 8.1.
7.5 Regardless of any change to the Contract made in accordance with Article 6, there shall be no change to Seller's ability to raise invoices and the Buyer's responsibility to make payment in accordance with Article 7 and Article 8 herein.
8. PAYMENT
8.1 Payment Terms. Unless otherwise agreed in the Contract, payment shall be made in the currency set forth in the Proposal and within 30 days from the date of the relevant invoice. Payment milestones, if any, shall be as agreed in the Contract or as set forth in the Proposal.
8.2 Disputed Amounts. If Buyer disputes Seller's invoice, in whole or in part, Buyer shall promptly (and in any event within 10 days of the date of the relevant invoice) notify Seller of the dispute and shall pay the undisputed portion in accordance with Article 8.1 above.
8.3 Late Payments. In addition to other Contract remedies, Buyer shall pay interest to Seller at the rate of 1.5% per month (or a fraction thereof), not to exceed the lesser of 18% per annum or the maximum amount permitted by Applicable Law, on all amounts not timely paid in accordance with the Contract.
8.4 Additional Remedies. If Buyer has not timely paid in accordance with the Contract, or is in breach of its material obligations hereunder, or any proceeding is brought, or may be brought, against Buyer under applicable bankruptcy or insolvency laws, then Seller, its agents and employees, shall have an irrevocable right to enter any premises where the Products, and/or Parts are or may be stored in order to inspect them, or, where Buyer's right to possession has terminated, to recover and repossess them without breaching the peace and/or rescind the Contract. Repossession of the Products, and/or Parts is not deemed to be a rescission of the Contract.
8.5 Credit Limits. Seller has the right, in its sole discretion, to establish a credit limit for each Buyer, and Seller shall have the right to suspend performance pursuant to Article 11.3 should the credit limit be exceeded.
8.6 Payment Security. Seller, in its sole discretion, may require Buyer to pay invoiced amounts against one or more irrevocable, unconditional, letters of credit payable at sight ("Payment Security"), without any set-off, in the currency agreed in the Contract, and at such other terms as determined by Seller. If so required, Buyer shall make relevant adjustments in the Payment Security (including increasing amounts or validity period, in accordance with the changes agreed in the Contract) as needed to fulfill its payment obligations under the Contract, within 15 business days of Seller's notification that such adjustment is necessary.
9. Taxes & Duties
9.1 Seller shall be responsible for and shall pay when due and payable all Seller Taxes, and Buyer shall be responsible for and shall pay all Buyer Taxes. The Contract Price does not include any Buyer Taxes. Therefore, if any such taxes are applicable, they will be added to the Contract Price. For U.S. sales and use tax, and in other jurisdictions where applicable, Buyer may report/remit sales or similar taxes directly if Buyer timely provides a direct pay or exemption certificate to Seller.
9.2. If Applicable Laws require the Contract to be subject to stamp duty, fee, or registration, Buyer shall be responsible for the required formalities and bear the related costs. Buyer shall return to Seller a copy of the registration certificate or a registered copy of the Contract within 10 days from the due date required by said Applicable Laws to register or pay for such stamp duty, fee, or registration. According to the Applicable Laws of the country in which Buyer has requested Seller to provide Services, Seller may be required to be registered locally, in which case, Seller shall perform the Services and invoice for them with the intervention of its relevant branch or permanent establishment.
9.3 If Buyer is required to deduct or withhold any Seller Taxes from the Contract Price, Buyer shall (i) give at least 30 days' prior written notice to Seller that Buyer will withhold, (ii) make all reasonable efforts to minimize any withholding tax from payments to Seller, in accordance with Applicable Laws and any applicable bilateral conventions against double taxation, and (iii) provide to Seller, within 30 days from payment, the official receipt issued by the competent government authority to which Seller Taxes have been paid or an alternative document acceptable to the relevant tax authorities. If Buyer requires tax residence certificates or other documentation from Seller to apply for any exempted or reduced tax regime, Seller shall submit the appropriate certificates upon Buyer's written request. If Buyer, under Applicable Laws of any country other than Seller's country of incorporation or in which Seller has a branch, deducts or withholds Seller Taxes or fails to comply with the requirements of this Article 9.3, Buyer shall pay additional amounts to Seller so that Seller receives the full amount of the Contract Price, as though no such Seller Taxes had been deducted or withheld.
9.4 If Buyer benefits from any tax, fee, or duty exemption which is applicable to Seller or Seller's Group, Buyer agrees to provide Seller, without charge and before the following, as applicable ,(i) entering into the Contract, (ii) invoicing, or (iii) any other relevant event, documentation acceptable to the competent tax or customs authorities supporting the exemption, together with instructions on the exemption procedure. Buyer shall promptly inform Seller in writing about the revocation, expiry, or other change of the exemption. If Seller is denied the exemption because of a failure of Buyer, Seller shall be entitled to invoice and Buyer shall pay promptly the applicable tax, fee, or duty.
9.5 When Buyer arranges the export or intra-European Union ("EU") community shipment, Buyer will provide to Seller, free of charge, evidence that such exportation or intra EU community shipment was made within the statutory deadlines of the country of exportation or dispatch. Such evidence must be in a form that is acceptable to the competent tax and customs authorities. Failing the above, Seller shall be entitled to invoice Buyer the applicable VAT, U.S. sales and use tax, or similar taxes. When Buyer arranges the transport and importation of Products and/or Parts, Buyer will provide, within thirty 30 days of Seller's request, documentation for such Buyer's transport and import and similar documents as required by the relevant tax authorities.
9.6 If either Party does not comply with the tax legislation of the country where the Products and/or Parts are manufactured or Delivered, or Services are rendered, such Party hereby agrees to release, defend, indemnify, and hold harmless the other Party ("Affected Party") for any Claims, risk and responsibility including taxes, duties, charges, penalties, legal expenses, and interest which the Affected Party suffers as a result of such noncompliance. Buyer and Seller shall make commercially reasonable efforts to cooperate with each other to minimize the tax liability of the Parties, to the extent legally permissible (but no obligation to increase such Party's tax liability), including separately stating taxable charges on Seller's invoices and supplying resale and exemption certificates, if applicable, and any other non-confidential information as reasonably requested.
9.7 Buyer warrants, represents and undertakes for itself and on behalf of Buyer Group, that (i) neither Buyer nor any member of Buyer Group shall: engage in any activity, practice or conduct which would constitute either a UK or a foreign tax evasion facilitation offence under Part 3 of the Criminal Finances Act 2017 (the "Act") and any associated guidance notes issued or similar legislation introduced elsewhere; (ii) the Buyer and the members of Buyer Group, have and shall maintain in place throughout the term of the Contract, such policies and procedures that are reasonable both to prevent the facilitation of tax evasion by any associated person as defined in the Act, and to require compliance with this Article 9.7; and (iii) the Buyer and the members of Buyer Group promptly report to Seller any request or demand from a third party to facilitate evasion of tax within the meaning of Part 3 of the Act, in connection with the performance of the Contract. Where Seller has reasonable belief, or evidence of a breach of this Article 9.7, Seller shall have the right to audit, with no less than thirty 30 days prior written notice, the relevant records of Buyer which relate directly to the Contract. If a breach of this Article 9.7 is subsequently confirmed, this shall be considered a material breach and Seller shall have the right to terminate the Contract.
10. ASSIGNMENT, NOVATION & SUBCONTRACTING
10.1 Assignment & Novation. Buyer may assign or novate the Contract, in full or in part and including through change of ownership, only with the prior written consent of Seller, which consent shall not be unreasonably delayed or withheld, provided that Seller shall be entitled to withhold such consent only for demonstrable reasons if the assignee/novatee lacks adequate financial capability, is a competitor or potential competitor of Seller or its Affiliates, causes Seller Group to be in breach of Applicable Law, and/or does not meet Seller's code of ethics. Seller may assign or novate the Contract to third parties, in full or in part, only with the prior consent of Buyer, which consent shall not be unreasonably delayed or withheld, provided that Seller may, without Buyer's consent assign or novate the Contract, in full or in part, to one or more Affiliates of Seller. The Parties agree to execute such documents as may be necessary to effect the permitted assignment or novation. In the event of an assignment or novation by Buyer, Buyer shall cause the assignee/novatee to provide additional payment security at Seller's reasonable request. Any assignment or novation in violation of the above shall be void and without effect for the other Party.
10.2 Subcontracting. Nothing herein shall restrict Seller from subcontracting portions of its work, provided that Seller remains responsible to Buyer for performance of such work.
11. TERMINATION & SUSPENSION
11.1 Termination for Cause. Either Party may terminate the Contract for default if: (i) any proceeding is brought against the other Party, voluntarily or involuntarily, under applicable bankruptcy or insolvency laws, or if the other Party is unable to pay its debts when due, to the extent permitted by Applicable Law; or (ii) the other Party commits a material breach of this Contract, which does not otherwise have a specified contractual remedy, and fails to cure the breach within 30 days of notice from the non-breaching Party, or if it is not possible to cure such breach within 30 days, fails to commence to cure the breach within 30 days of such notice or fails to thereafter continue diligent efforts to complete the cure as soon as reasonably possible. In the event of a termination by Buyer under this Article 11.1, Seller shall reimburse Buyer the difference between that portion of the Contract Price allocable to the terminated scope and the actual amounts reasonably incurred by Buyer to complete such terminated scope; and Buyer shall pay to Seller the portion of the Contract Price allocable to Products and/or Parts purchased and/or completed, and amounts for Services performed, before the effective date of termination. Said amounts shall be calculated using the applicable Contract rates, or in the absence of such rates, at Seller's then-current standard time and material rates. In the event there are agreed-upon Contract milestones, the said amounts shall be calculated in accordance with the milestone schedule for completed milestones, and the Contract rates for work toward milestones not yet achieved. Title to all raw material procured by Seller shall remain with Seller. In the event of termination by Seller under this Article 11.1, Buyer shall reimburse Seller consistent with the provisions of Article 11.2.
11.2 Termination for Convenience. Either Party may terminate this Contract (or a Purchase Order as the case may be) upon 20 days prior written notice for convenience. Unless a specific Purchase Order is terminated, any valid Purchase Order in place at the time of such termination of this Contract shall remain valid and in place pursuant to its terms. In the event of a termination by Buyer, Buyer shall pay Seller's charges in accordance with the Contract termination schedule, but no less than all amounts due and payable under the Contract for completed milestones, if any; or if no such schedule exists: (i) Buyer shall pay Seller the portion of the Contract Price allocable to Products and/or Parts purchased and/or completed, and amounts for Services performed, before the termination date, and all costs and expenses incurred by Seller in connection with work performed before the termination date, plus a restocking fee of 25% on all expenses, costs and amounts due; or (ii) for Contracts based on payment milestones Buyer shall pay Seller: (a) all amounts due under the Contract for completed milestones, plus (b) all costs and expenses incurred by Seller in connection with work performed in relation to incomplete milestones, plus a restocking fee of 25% on all expenses, costs and amounts due. In connection with both (i) and (ii), Buyer shall also pay Seller all costs and expenses incurred by Seller as a direct result of the termination, including any custom duties, VAT, other indirect taxes, and costs associated with vendor disputes or Claims. Title to all raw material procured by Seller shall remain with Seller. In the event of termination for convenience by Seller under this Article 11.2, Buyer and Seller shall each reimburse and/or pay each other consistent with the provisions of Article 11.1.
11.3 Suspension by Seller. If Buyer fails to pay any outstanding undisputed invoice as set forth in the Contract, including the VAT invoices as per Article 9.5 above, or exceeds its credit limit (if any), or for those reasons set forth in Article 8.4, Seller, upon 15 days prior written notice to Buyer, may suspend performance and Delivery. Any cost incurred by Seller as a result of such suspension (including storage, standby costs, demobilization and remobilization costs) shall be payable by Buyer upon submission of Seller's invoices. Performance of Seller's obligations shall be extended for a period equaling the period of Buyer's failure to meet its payment obligations, plus such additional time as may be reasonably necessary to overcome the effect of such payment delay. In case suspension lasts for a maximum cumulative period of 60 days, Seller may terminate the Contract and Buyer shall reimburse Seller consistent with the provisions of Article 11.2.
11.4 Suspension by Buyer. Upon 20 days prior written notice, Buyer may elect to suspend performance of the Contract for a maximum cumulative period of 90 days, after which period Seller may terminate the Contract and Article 11.2 shall apply. In the event of suspension under this Article 11.4, Buyer shall also pay all reasonable expenses incurred by Seller in connection with the suspension, including without limitation, expenses for repossession, fee collection, standby costs, demobilization/remobilization, and costs of storage. The schedule for Seller's obligations shall be extended for a period of time reasonably necessary to overcome the effects of such suspension.
12. Compliance with Laws, Codes and Standards
12.1 The Contract Price is based on Seller Group's design, manufacture, testing, and Delivery of the Products, Parts and/or Services pursuant to: (i) Seller's design criteria, manufacturing processes, and procedures and quality assurance program; (ii) those portions of industry specifications, codes, and standards in effect as of the date of entering into the Contract as are specified in the Contract; (iii) Applicable Law; and (iv) any mutually agreed-upon written terms and specifications set forth in the Contract.
12.2 Compliance with Applicable Laws. The Parties shall at all times comply with all Applicable Laws in the performance of the Contract (including but not limited to competition laws, applicable labor standards, anti-discrimination rights and fundamental human rights norms as described in the United Nations' Universal Declaration of Human Rights), except to the extent that such compliance is penalized under, or otherwise violates the laws of the U.S., U.K. or any EU laws. Each Party confirms that it shall uphold the highest standards of business ethics and corporate code of conduct in the performance of the Contract (and any Purchase Order issued thereunder).
12.3 Permits & Licenses. Unless otherwise agreed in the Contract, Seller shall be responsible for timely obtaining the permits, licenses, and authorizations required for Seller Group to meet the requirements of the Contract, except that Buyer shall be responsible for timely obtaining any required permits, licenses, and authorizations that can only be obtained by Buyer Group. Buyer and Seller shall provide each other reasonable assistance in obtaining such required authorizations.
12.4 International Trade Compliance. Buyer agrees that it will not sell, distribute, disclose, release or otherwise transfer (directly or indirectly) any item or technical data provided under this Contract to: (i) any country designated as a "State Sponsor of Terrorism" by the U.S. Department of State including, for the purposes of this Contract, the countries of Cuba, Iran and North Korea (ii) any entity (including Buyer's ultimate end user) located in, or owned by an entity located in, a "State Sponsor of Terrorism" country or Cuba, Iran or North Korea, (iii) the region of Crimea or (iv) any person or entity listed on the "Entity List" or "Denied Persons List" maintained by the U.S. Department of Commerce, the list of "Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury or any other applicable prohibited party list of the U.S. Government. This Article 12.4 will apply regardless of the legality of such a transaction under local law. Except as otherwise agreed in writing between the Parties, each Party shall be responsible for obtaining and maintaining any authorization required for its performance under this Contract (including the transfer of any item or technical data under this Contract), such as any export license, import license, exchange permit or other required government export or import authorization. Upon request Buyer will provide Seller with relevant end-use, end-user and country of end-user information with respect to Products and/or Parts, Services, software or technology to be supplied hereunder (collectively "Items"). The Parties acknowledge that any change in end-use, end-user or country of end-use may be restricted or prohibited by applicable export control, trade regulation and customs laws, entitling Seller to withdraw the Proposal or terminate the Contract without any liability. Each Party shall provide the reasonable assistance necessary for the other Party to secure and comply with such authorizations as may be required. Neither Party shall be liable if any government export authorization is delayed, denied, revoked, restricted or not renewed despite reasonable efforts by such Party. Additionally, such delay, denial, revocation or non-renewal shall not constitute a breach of this Contract.
12.5 Seller reserves the right to reject or terminate any order from a Buyer, customer or end user listed on any denied party list.
12.6 Buyer shall not use any items sold hereunder for any military application or resell or distribute them for such purpose.
12.7 Data Protection. The Parties agree to comply with all Applicable Data Protection Laws. Further, the Parties agree to enter into EU Model Clauses when required by EU law or ensure that equivalent safeguards are in place. If intended actions by one or more Parties require further agreements and/or other actions to comply with the Applicable Data Protection Laws the Parties agree to mutually collaborate and sign them and/or take actions as required.
12.8 Anti-Bribery & FCPA. Each Party warrants and represents that, in connection with the Products and/or Parts and/or Services, it has not made or offered and will not make or offer any payment, gift, promise or other advantage or anything of value, whether directly or through intermediaries, to or for the use of any public official, where such payment, gift, promise or advantage would violate the principles identified in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or the Convention on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union, or that would violate any national anticorruption laws that might apply to the Contract, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010, which includes bribery of private individuals.
13. HEALTH, SAFETY, SECURITY & ENVIRONMENT (HSSE)
13.1 Buyer shall take all actions necessary to provide a safe, healthy and secure work environment, including transportation and accommodation if applicable, for Seller Group personnel. Buyer shall inform Seller of any known risks, hazards, or changed conditions impacting worker health, safety or the environment, including the presence or potential presence of Hazardous Materials, and shall provide relevant information, including safety data sheets, site security plans, risk assessments and job hazard analyses. Buyer shall ensure coordination during activity performance and hereby guarantees risk assessment and implementation of permit to work system in order to mitigate interferential risks with Seller's personnel or other personnel at the Site.
13.2 To evaluate risks associated with the provision of Services and performance under this Contract, Buyer shall provide Seller Group with reasonable access to review the Site and related equipment. If Seller's work at the Site is subject to local, state or national HSSE legal requirements that are not reasonably available, Buyer shall notify and provide copies of the same to Seller.
13.3 If Seller or Seller's representative believes in good faith that Site conditions, Seller transportation or accommodation provisions, or the actions of others threaten the health, safety, or security of Seller Group personnel or the environment, Seller or its representatives may, in addition to other rights or remedies available, STOP WORK, evacuate some or all of its personnel, suspend performance of all or any part of the Contract, and/or remotely perform or supervise work. If Seller exercises its rights under this Article 13.3, it shall give prompt notice to Buyer, and the Parties shall work cooperatively to correct the conditions or actions prompting the STOP WORK. The Parties agree there shall be no retaliation taken against any person who invokes their right under this provision to STOP WORK. Any delay resulting from Seller Group's exercise of its rights under this Article 13.3 shall constitute an excusable delay under Article 3.
13.4 To the full extent permitted by Applicable Law, Buyer agrees that it is the generator, and shall be solely responsible for the storage, transportation and disposal of all Hazardous Materials or waste related to or arising from the performance of Services at Buyer Group sites, including any removed from Seller's equipment. Prior to the transportation and disposal of waste materials by Buyer, Seller shall properly manage and collect on-site all Hazardous Materials resulting from the Services in accordance with Applicable Law and Buyer's written requirements. If Seller Group encounters any Hazardous Materials, it may suspend work pending Buyer elimination of the hazardous condition(s). If any Seller equipment or Buyer equipment destined for a Seller facility is contaminated with Hazardous Materials, Buyer shall assume sole responsibility for decontaminating such equipment and returning it in the same condition received to allow for its safe handling and transportation in compliance with Applicable Law. If any such Hazardous Materials cause an increase in Seller's cost or time, Seller shall be entitled to an equitable adjustment in price and schedule.
14. ADDITIONAL HSSE PROVISIONS
14.1 For the performance of work on Buyer's Site, Buyer shall: (i) ensure that the required permits for the performance of the work have been issued; (ii) ensure that Seller is given the necessary access for the performance of the work; (iii) ensure that the work can be completed without disturbance by Buyer's other operations; (iv) supply all labor, materials, tools, equipment, parts, power, air, water, fuels, lubricants and consumables required for the efficient and safe performance of the work; and (v) at the request of Seller's personnel, sign accurate time sheets submitted with respect to the work.
14.2 Seller Group personnel shall not be required to work in excess of any time restriction prescribed by Applicable Law. Seller Group personnel will have at least 1 day of rest in any 7 consecutive days; provided, the Parties may agree upon exceptions consistent with Seller's working time policy.
14.3 Buyer shall provide medical care and facilities at the Site consistent with international industry standards. If Seller Group's personnel require urgent medical attention, Buyer shall make its medical facilities available to such persons as necessary. To the extent Buyer cannot supply necessary urgent medical attention at the Site or any Buyer Group site or while working offshore, Buyer shall provide for transport of Seller Group's personnel and access of such personnel to the nearest suitable urgent care facility. For offshore or remote work, Buyer shall be responsible for the medical evacuation of Seller Group's personnel from the Site to the departure point on the mainland or Buyer's designated medical services provider.
14.4 Buyer shall transport Seller Group's personnel, equipment and materials, including medi-vac, to and from all offshore locations and to such other job Sites as agreed, in compliance with Applicable Law and international industry standards regarding qualified personnel and safe operation and maintenance. Buyer Group agrees to make such equipment and information relating to its operation and maintenance available to Seller for review. Buyer shall provide personal protective equipment required during use of Buyer provided transportation to and from the offshore work and such other specialized equipment as agreed between the Parties.
14.5 Buyer shall provide, at no cost to Seller, accommodation and messing for Seller Group's personnel, which offers a reasonable degree of comfort, is consistent with international industry standards and is at least comparable to that furnished to Buyer's management and technical personnel. Buyer shall provide telephone and computer internet connectivity to Seller Group's personnel at said accommodations.
14.6 If stored energy (electrical, mechanical, hydraulic or otherwise) at Buyer's Site poses a safety risk to Seller Group's personnel, prior to the commencement of work: (i) if Seller has primary control over the work, Seller shall apply its lockout/tag out ("LOTO") procedures, including installation of physical locks under the exclusive control of Seller's employees and system verification where necessary; (ii) if Seller's personnel are working under the direction of Buyer or its representatives, (a) Buyer shall maintain and coordinate appropriate LOTO procedures, and Seller shall apply physical locks or other physical controls under the exclusive control of Seller's employees and verify the system where necessary; or (b) if physical locks or other controls are not feasible because of regulatory requirements or Buyer's generally accepted and established industry standards for energy isolation, Seller and Buyer shall jointly conduct a risk assessment of the potential LOTO risks prior to work commencement and mutually agree on appropriate measures to maintain safe working conditions and comply with Applicable Law.
15. CONFIDENTIALITY
15.1 "Confidential Information" means any business, technical or financial information, whether or not stored in any medium and whether or not obtained directly or indirectly in writing, orally, or from an inspection or review, relating to the business of a Party or its Group, including but not limited to, equipment, materials, software, designs, samples, test specimens, prototypes. technology, technical documentation, product or service specifications or strategies, marketing plans, pricing information, financial information, reports, information relating to existing, previous and potential suppliers, customers, contracts and products, inventions or potential improvements thereto, trade secrets, unreleased software applications, methodologies, techniques, processes, concepts, ideas, and other know-how, drawings, photographs, models, mock-ups, and design and performance specifications, production volumes, and production schedules and all information pertaining thereto and/or any information that is designated in writing as "confidential" or "proprietary" at the time of disclosure, or orally designated as "confidential" or "proprietary" and confirmed in writing within 10 days after oral disclosure, or if not so designated, could be understood by a reasonable person to be confidential. Confidential Information shall not include information that: (i) is or becomes generally available to the public other than from disclosure by the receiving Party's Group; (ii) is or becomes available to the receiving Party's Group on a non-confidential basis from a source other than the disclosing Party and, after due inquiry, that source is not subject to a confidentiality obligation to the disclosing Party; or (iii) is independently developed by the receiving Party's Group without reference to the disclosing Party's Confidential Information, as evidenced by written documents.
15.2 The Parties shall: (i) use, reproduce, or disclose the other Party's Confidential Information only in connection with the Contract and permitted use(s) and maintenance of Products, Parts and/or Services; (ii) take reasonable measures to protect the confidentiality, and prevent disclosure and unauthorized use of the Confidential Information; and (iii) not disclose Confidential Information to the other Party Group's competitors.
15.3 A Party may disclose Confidential Information: (i) to any member of its Group who has a need to know such information to perform the Contract or use and maintain the Products, Parts, and/or Services, provided that such member is bound in writing to confidentiality obligations and use restrictions at least as restrictive as in this Contract; and (ii) to comply with a legal obligation, but only after promptly notifying the disclosing Party of its disclosure obligation so that the disclosing Party may seek an appropriate protective order or agency decision. If, absent the entry of a protective order or other similar remedy, the receiving Party is based on the advice of its counsel legally compelled to disclose such Confidential Information, such receiving Party may furnish only that portion of the Confidential Information that has been legally compelled to be disclosed, and shall exercise its reasonable efforts in good faith to obtain confidential treatment for any Confidential Information so disclosed. Buyer shall not disclose Confidential Information to Seller unless required for Seller to perform under this Contract. Buyer warrants that it has the right to disclose any such information and hereby agrees to release, defend, indemnify, and hold harmless Seller Group from any Claims resulting from improper or unauthorized disclosure.
15.4 Neither Party shall make any public announcement about any aspect of the Contract or related documents or information without prior written approval of the other Party.
15.5 The confidentiality and use restrictions of this Article 15 shall survive any termination of the Contract for 10 years. Each Party hereby agrees to release, defend, indemnify, and hold harmless the other for failure to comply with the confidentiality obligations undertaken herein.
16. INTELLECTUAL PROPERTY
16.1 IP Infringement. Seller hereby agrees to release, defend, indemnify, and hold harmless Buyer from any rightful claims of third parties that the Products or Parts manufactured by Seller or its Affiliates, or result of Services delivered by Seller or its Affiliates, infringe any utility patent of the U.S., EU, or the country of initial installation, provided that: (i) Buyer promptly notifies Seller in writing of its receipt of any such third party claim; (ii) Buyer makes no admission of liability and does not take any position adverse to Seller regarding such claim and gives Seller sole authority, at Seller's expense, to direct and control all defense, settlement and compromise negotiations related thereto; and (iii) Buyer provides Seller with full disclosure and assistance that may be reasonably required to defend any such claim.
16.2 Article 16.1 shall not apply, and Seller shall have no obligation or liability with respect to any claim based upon: (i) any Products, Parts or Services that have been altered, modified, or revised; (ii) the combination, operation, or use of any Products, Parts or Services with other products or services when such combination is part of any allegedly infringing subject matter; (iii) failure of Buyer Group to implement any update provided by Seller Group that would have prevented the claim; (iv) unauthorized use of Products, Parts or Services, including without limitation a breach of the provisions of the Contract; or (v) Products, Parts and/or Services made or performed to Buyer Group's specifications or design.
16.3 Should any Products, Parts and/or Services become the subject of a claim, Seller may at its option: (i) procure for Buyer the right to continue using the Product, Part and/or Services, or portion thereof; (ii) modify or replace it in whole or in part to make it non-infringing; or (iii) failing (i) or (ii), take back Products or Parts, discontinue Services, and refund any fees received by Seller attributable to the infringing Product, Part or Service.
16.4 Sole and Exclusive. THE FOREGOING ARTICLES 16.1, 16.2 AND 16.3 STATE SELLER GROUP'S ENTIRE AND EXCLUSIVE LIABILITY, AND BUYER GROUP'S ENTIRE AND EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS INFRINGEMENT.
16.5 IP Ownership. Each Party shall retain ownership of any and all Confidential Information and intellectual property it had prior to the negotiations of the Contract. Any and all new intellectual property conceived, created, developed or provided by Seller Group under the Contract, whether alone or with any contribution from Buyer Group, shall be owned solely and exclusively by Seller Group. If Buyer Group acquires any right or interest in any such new intellectual property, Buyer hereby irrevocably assigns, on behalf of itself and the other members of the Buyer Group, and agrees to assign and/or cause other members of Buyer Group to assign, all such rights and interests in and to such new intellectual property as instructed by Seller. To the extent permissible by law, Buyer Group waives any moral rights it acquires in any such new intellectual property. Seller hereby agrees to grant Buyer use rights to utilize Seller's intellectual property embedded in the Products and/or Parts solely for standard use, operation, and maintenance of the Products and/or Parts. Such license shall not give Buyer the right to manufacture and/or have manufactured such Products and/or Parts, or any part thereof.
16.6 Software. If Seller provides any Products that are software, including SaaS (Software as a Service), embedded software, or software that is installed on Buyer Group's equipment, the terms and conditions of additional special Software Terms shall apply. If there is any conflict between these Terms and Conditions and the additional special Software Terms, the terms of the additional special Software Terms shall prevail.
16.7 Data. Buyer agrees that Seller has the right to access, and may collect, create, receive, maintain, transmit, process, analyze, prepare derivatives from, and otherwise use, data derived from Buyer's (or its customer's) products, services, operations, systems and software, that is gathered periodically to facilitate the provision of Products, Parts and Services, to verify compliance with the terms of the Contract, and for Seller's continuous improvement, so long as such data are de-identified and aggregated in a form that is reasonably calculated to not identify the Buyer or its customer.
17. INDEMNITY, Limitation of Liability, & INSURANCE
The provisions of this Article 17 shall apply to the maximum extent permitted by Applicable Law and, unless otherwise expressly stated, prevail over any conflicting terms of the Contract.
17.1 Knock-4-Knock.
(i) Seller hereby agrees to release, defend, indemnify, and hold harmless Buyer Group from and against any and all Claims for personal injury, illness, or death suffered by any member of Seller Group's personnel, and/or for damage to or loss of any property of any member of Seller Group (whether owned, hired, or leased, but excluding property leased to Buyer Group) arising out of or in connection with the Contract, REGARDLESS OF CAUSE OR ACTION.
(ii) Buyer hereby agrees to release, defend, indemnify, and hold harmless Seller Group from and against any and all Claims for personal injury, illness, or death suffered by any member of Buyer Group's personnel, and/or for damage to or loss of any property of any member of Buyer Group (whether owned, hired, or leased, and including the Products and Parts (after Delivery), the Site, and any facilities or property thereon), arising out of or in connection with the Contract, REGARDLESS OF CAUSE OR ACTION.
17.2 Third Parties.
(i) Seller hereby agrees to release, defend, indemnify, and hold harmless Buyer Group from and against any rightful third party Claims on account of personal injury, illness or death, or damage to or loss of property, to the extent resulting directly from the negligence of Seller Group in connection with performance of the activities under this Contract.
(ii) Buyer hereby agrees to release, defend, indemnify, and hold harmless Seller Group from and against any rightful third party Claims on account of personal injury, illness or death, or damage to or loss of property, to the extent resulting directly from the negligence of Buyer Group in connection with the performance of this Contract.
(iii) In the event the injury or damage to third parties is caused by the joint or concurrent negligence of the Parties or their respective Groups, each Party shall bear the liability of such injury or damage proportionally to its Group's negligence. For the avoidance of doubt, no members of either Party's Group shall be considered third parties and, for the purposes of Seller's indemnity obligation in this Article 17, no part of the Site or any property or facilities thereon shall be considered as third party property, and the Site, Site owner and its partners, Affiliates and contractors/subcontractors shall be considered part of the Buyer Group for the purposes of this Article 17. The reciprocal indemnities in this Article 17.2 shall apply only if the indemnified Party: (i) promptly notifies the other Party in writing of the third party Claim; (ii) makes no admission of liability, does not take any position adverse to the other Party and gives such other Party sole authority to direct and control all defense, settlement and compromise negotiations; and (iii) provides the other Party with full disclosure and assistance as may be reasonably required to defend such Claim.
17.3 Environmental Liability. Except only as provided in Article 17.1(i) but notwithstanding anything else to the contrary herein, Buyer assumes sole responsibility for and hereby agrees to release, defend, indemnify, and hold harmless the Seller Group (to the maximum extent permitted under Applicable Law) from and against any and all Claims asserted by or in favor of any person or party resulting from: (i) pollution, contamination. spills, leakage, blowouts, above or below ground, or uncontrolled flow(s) of oil, gas and water or other substances, including the damages caused by said events and including the costs of pollution control and removal and clean-up; (ii) loss of the hole, including the casing and all pipe and tubulars and equipment and tools therein, and damage to or loss of the well, reservoir, production and/or formations; and (iii) loss of or impairment of any property right in and to any oil, gas, water or other mineral substance. The above indemnity applies REGARDLESS OF CAUSE OR ACTION and even if the Claim is on account of any defect in the Products, Parts and/or Services.
17.4 Limitation of Liability. EXCEPT ONLY FOR SELLER'S OBLIGATIONS IN ARTICLES 9.1, 16, AND 17.1(i), SELLER GROUP'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS OF ANY KIND, REGARDLESS OF CAUSE OR ACTION, ARISING OUT OF OR RELATED TO THE CONTRACT, OR ITS PERFORMANCE OR BREACH, INCLUDING WITHOUT LIMITATION WARRANTY AND TERMINATION, SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED, IN THE CASE OF CLAIMS RESULTING FROM THE PROVISION OR FAILURE TO PROVIDE, OR FROM THE USE OR FAILURE TO USE PRODUCTS OR PARTS OR SERVICES, THE CONTRACT PRICE ALLOCABLE TO THE PRODUCT AND/OR PARTS OR SERVICES GIVING RISE TO THE CLAIM, AND BUYER SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS MADE IN EXCESS OF THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS ARTICLE 17.4. SELLER GROUP SHALL HAVE NO LIABILITY FOR ADVICE OR ASSISTANCE GRATUITOUSLY PROVIDED BY SELLER GROUP BUT NOT REQUIRED PURSUANT TO THE CONTRACT. ALL OF SELLER GROUP'S LIABILITIES SHALL TERMINATE AT THE END OF THE RELEVANT WARRANTY PERIOD, EXCEPT FOR CLAIMS THAT HAVE BEEN TIMELY COMMENCED BY BUYER IN ACCORDANCE WITH THE CONTRACT.
17.5 Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND EXCEPT ONLY TO THE EXTENT OF AGREED LIQUIDATED DAMAGES AND ANY PREDETERMINED TERMINATION FEES DUE TO SELLER UNDER THE CONTRACT, SELLER HEREBY AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS BUYER GROUP FROM AND AGAINST ANY AND ALL CLAIMS FOR CONSEQUENTIAL LOSS OF SELLER GROUP; AND BUYER HEREBY AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER GROUP FROM AND AGAINST ANY AND ALL CLAIMS FOR CONSEQUENTIAL LOSS OF BUYER GROUP REGARDLESS OF CAUSE OR ACTION.
17.6 NOTWITHSTANDING ARTICLE 17.2(i), IN THE EVENT BUYER GROUP PROVIDES PRODUCTS AND/OR PARTS TO A THIRD PARTY OR USES SELLER'S PRODUCTS/PARTS AT A LOCATION OR SITE NOT OWNED BY BUYER, OR THE SERVICES ARE PERFORMED AT A LOCATION OR SITE NOT OWNED BY BUYER, BUYER HEREBY AGREES TO RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER GROUP FOR AND AGAINST ANY CLAIMS MADE IN EXCESS OF THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE CONTRACT, REGARDLESS OF CAUSE OR ACTION. IN THE EVENT BUYER ASSIGNS OR NOVATES THE CONTRACT, IN WHOLE OR IN PART, SUCH ASSIGNEE OR NOVATEE SHALL BE BOUND BY THE SAME TERMS OF THIS CONTRACT, AND BUYER HEREBY WAIVES ANY RIGHT TO CLAIM, WHETHER IN TORT, AT LAW OR OTHERWISE, FOR DAMAGES OR LIABILITIES OF ANY KIND IN EXCESS OF THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE CONTRACT.
17.7 Insurance. Buyer and Seller each hereby covenant and agree to support their mutual indemnity obligations under this Article 17 by procuring and maintaining, at the indemnifying Party's sole expense, insurance policies meeting the following requirements: (i) Workers Compensation/Employer's Liability as per Applicable Law; (ii) Comprehensive General Liability: Combined Single Limits for Personal Injury and Property Damage $2,500,000.00 (two and a half million) per occurrence and $10,000,000.00 (ten million) in the aggregate (or its equivalent in another relevant currency), which may be satisfied through a combination of underlying and excess coverages. The Parties agree that, to the extent of the indemnifying Party's liability and indemnity obligations under the Contract, the indemnified Party's Group shall be an additional insured (with the exception of Workers Compensation/Employer's Liability) under the indemnifying Party's policies, be primary, and receive no contribution from any insurance policies maintained by or on behalf of the indemnified Party. Each Party, on request, shall provide to the other Party insurance certificates evidencing the aforementioned limits and terms of insurance. Buyer and Seller shall each arrange for any of their respective insurance policies hereunder to contain provisions whereby, to the extent of each Party's liability and indemnity obligations under the Contract, their insurers waive their rights of subrogation against the other Party's Group, as well as the other Party's respective insurers.
17.8 Texas Law
IN THE EVENT THIS CONTRACT IS SUBJECT TO THE INDEMNITY OR RELEASE LIMITATIONS IN CHAPTER 127 OF THE TEXAS CIVIL PRACTICES AND REMEDIES CODE (OR ANY SUCCESSOR STATUTE), EACH PARTY COVENANTS AND AGREES TO SUPPORT THEIR INDEMNITY OBLIGATIONS IN THIS ARTICLE 17 BY CARRYING LIABILITY INSURANCE (OR QUALIFIED SELF-INSURANCE) IN AN AMOUNT NOT LESS THAN U.S. $10,000,000.00 FOR THE BENEFIT OF THE OTHER PARTY AS INDEMNITEE.
BOTH PARTIES AGREE THAT THIS STATEMENT COMPLIES WITH THE REQUIREMENT, KNOWN AS THE EXPRESS NEGLIGENCE RULE UNDER THE LAWS OF THE STATE OF TEXAS, TO EXPRESSLY STATE IN A CONSPICUOUS MANNER TO AFFORD FAIR AND ADEQUATE NOTICE THAT THIS AGREEMENT HAS PROVISIONS REQUIRING ONE PARTY (THE INDEMNIFYING PARTY) TO BE RESPONSIBLE FOR THE NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF THE OTHER PARTY OR A MEMBER OF THE OTHER PARTY'S GROUP (THE INDEMNIFIED PARTY).
17.9 Louisiana Law
Notwithstanding any provision in this Contract to the contrary, Buyer and Seller agree that with respect to Products, Parts and/or Services that may be subject to Louisiana law, Buyer (on its own behalf, and on behalf of the Buyer Group) and Seller (on its own behalf and on behalf of Seller Group) may pay to each other's insurer the premium required by their respective insurers or their insurer's agents or authorized representatives to extend all of their insurance policies to include coverage for Buyer's and Seller's respective indemnities as required by this Contract, and such insurance protection shall be governed by Louisiana law. If requested by either Party, each Party shall arrange to have the other Party billed for the premium by its respective insurer, and will advise such other Party prior to the inception of such billing if such premium will be in excess of $2,000 per year. The insurance policy shall apply to incidents arising out of the provision or performance of any Products, Parts and/or Services under this Contract. At each subsequent renewal of insurance, during the term of this Contract, if a Party has made such a request, each Party will advise the other of the amounts of the premium required for the extensions described above and arrange billing for the appropriate premium by its insurers or their agents or authorized representatives. It is expressly acknowledged and agreed to by the Parties that the provisions of this paragraph are intended to comply with the provisions Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994), and the provisions hereof shall be interpreted in such a manner as to comply therewith.
18. ADDITIONAL SPECIAL TERMS & DOCUMENTATION
18.1 If any Products and/or Parts include executable binary code, or if Seller provides any remote diagnostic, rental tools, training, or other special Services, additional special terms may apply (e.g., Software Terms, Cybersecurity Services Terms, Remote Diagnostic Services Terms, Rental Tools Terms, SmartCert or Inspection Terms, etc.). If there is any conflict between these Terms and Conditions and any additional special terms, the terms of the additional special terms shall prevail.
18.2 Unless otherwise agreed in writing between the Parties, all quotes, documentation, deliverables, manuals, instructions, and invoices submitted to Buyer will be in English.
19. GOVERNING LAW & DISPUTE RESOLUTION
19.1 Governing Law. The interpretation of this Contract and any Purchase Order hereunder, the execution and performance hereof and the rights of all Parties hereunder shall be governed by the laws of (i) the State of Texas if the Seller's place of business is in North or South America or an American Territory; (ii) Norway if the Seller's place of business is in Norway; or (iii) England and Wales for any other location, each excepting any of its procedural laws and principles governing choice of law that may lead to the application of any other law.
19.2 Dispute Resolution. Any dispute arising out of or in connection with the Contract shall be brought in (i) the District or Federal Courts of Harris County, Texas, USA or (ii) the Oslo District Court (Oslo tingrett) if the Seller's place of business is in Norway, or if the amount in dispute exceeds US$5,000,000, such dispute shall be referred to settlement proceedings under the International Chamber of Commerce (ICC) Mediation Rules, without prejudice to either Party's right to seek emergency, injunctive, or conservatory measures of protection at any time. If any such dispute has not been settled within 60 days following the filing of a Request for Mediation (or such other period of time as may be reasonable under the circumstances or agreed in writing), the dispute shall be finally settled in accordance with the ICC Rules of Arbitration by one or more arbitrators appointed under said Rules. The seat, or legal place, of arbitration shall be (1) Houston, Texas, USA or (2) Oslo, Norway if the Seller's place of business is in Norway.
20. MISCELLANEOUS
20.1 Independent Contractor. Seller shall be an independent contractor with respect to the any work performed under this Contract, and neither Seller nor anyone employed by Seller shall be deemed for any purpose to be the employee, agent, servant, or representative of Buyer. Buyer shall have no right or authority to supervise or give instructions to the employees, agents or representative of Seller, but such employees, agents or representatives at all times shall be under the direct and sole supervision and control of Seller. Any suggestions or directions given by the Buyer or its employees shall be given only to the superintendent or other person in charge of Seller's crew. The Buyer shall have no direction or control over Seller Group, their respective employees, agents and subcontractors and the details of their respective jobs or work.
20.2 Amendments & Entirety. The Contract represents the entire agreement between the Parties and supersedes any and all proposals, negotiations, and representations of the Parties prior to the execution hereof, including without limitation, prior drafts of this Contract. No modification, amendment, rescission, waiver or other change shall be binding on either Party unless agreed to in writing by their authorized representatives. Each Party agrees that it has not relied on, or been induced by, any representations of the other Party not contained in the Contract.
20.3 Headings. The article headings contained herein are included for purposes of convenience only and shall not affect the construction or interpretation of any of the provisions of this Contract.
20.4 Authority. Each of the persons executing this Contract (and any Purchase Order related thereto) represents and warrants that they have full right and authority to execute such on behalf of Seller and Buyer, respectively, and to legally bind such Party to the fulfillment of all of the provisions hereof.
20.5 Partial Invalidity. The invalidity, in whole or in part, of any part of the Contract shall not affect the validity of the remainder of the Contract. In the event any provision of the Contract is held invalid or unenforceable, only the invalid or unenforceable part of the provision shall be severed, leaving intact and in full force and effect the remainder of the sentence, article, clause and provision to the extent not held invalid or unenforceable.
20.6 No Waiver. No waiver by Buyer or Seller of any breach of any of the terms and conditions of the Contract shall be construed as a waiver of any subsequent breach whether of the same or of any other term or condition hereof. No waiver shall be considered valid unless made in writing. No failure or delay on the part of Buyer or Seller to exercise any power, right or remedy under this Contract shall operate as a waiver thereof nor shall any single or partial exercise by the Buyer or the Seller (as applicable) of any power, right or remedy preclude any other or further exercise thereof or the exercise of any other power, right or remedy.
20.7 Counterparts. This Contract may be executed in multiple counterparts that together shall constitute one agreement.
20.8 Survival. Subject to any time limitations expressly stated in the Contract, the following Articles shall survive termination, expiration or cancellation of the Contract, including any Articles or sections that, by their nature, are intended to survive: Article 2, Article 3, Article 4, Article 6, Article 7, Article 8, Article 9, Article 10, Article 11, Article 12, Article 15, Article 16, Article 17, Article 19 and Article 20.8.
HMH TERMS & CONDITIONS FOR SALE OF PRODUCTS & SERVICES ©HMH 2023
Rev. 1.0, 04 JULY 2023