TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS
1. GENERAL PROVISIONS
1.1 These general terms and conditions for the supply of services and spare parts (the “GT&C”) shall apply.
Furthermore, the following terms shall apply in addition to these GT&Cs:
- ORGALIME R02
- ORGALIME M2000
- ORGALIME S2012
1.2 Engineering Consult AS / Future Services (Supplier) Quotation and these GT&Cs together make up the “Contract” between the supplier and the Customer.
1.3 In the event of conflict between the provisions of the Quotation and these GT&Cs, and the provisions contained in the Customer inquiry, order confirmation, or contract, or Orgalime R02, or Orgalime M2000, the Quotation and GT&Cs by supplier shall prevail.
- Contract: Shall have the meaning as defined in clause 1.
- Supplier: Engineering Consult AS / Future Services
- Customer: The party set out as being the “Customer” in the Purchase Order/Service Order/Quotation/Project.
- Services: The services to be provided by the Supplier under this Contract, usually consisting of one or more of the following: Troubleshooting, repair and maintenance, delivery and/or installation of Spare Parts or Other Equipment, commissioning, annual or 5-year inspections, certification, training, consulting, etc.
- Document: Includes, in addition to any document in writing, any checklist, report, drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
- In-put Material: All Documents, information and materials provided by the Customer relating to the Services, including but not limited to reports, specifications, certificates, archived service reports and service orders, archived statements of service and any other document, information, equipment or similar as reasonably requested by the Supplier.
- Quotation: The document setting out the proposed cost/fee estimate and relevant content by the Supplier for the provision of the Services.
- Service Order: The document executed by the Customer and the Supplier containing details about the Services including, for example, the estimated timetable (including any milestones), the Services to be delivered by the Supplier, the responsibilities for the provision of the Services, and in which the Quotation shall be deemed to be incorporated.
- VAT: Value added tax chargeable under Norwegian law for the time being and any similar additional tax.
3. COMMENCEMENT AND DURATION
3.1 The Supplier shall provide the Services to the Customer on the terms and conditions as specified in the Contract.
3.2 The Supplier shall provide the Services to the Customer during the period specified in the Service Order, subject always to clause 7.1 herein.
4. SUPPLIER’S GENERAL OBLIGATIONS
4.1 The Supplier shall use reasonable endeavors to provide the Services in accordance with the Contract in all material respects.
4.2 The Supplier shall use reasonable endeavors to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and that have been communicated to it under clause 5.1 (e), provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
5. CUSTOMER’S GENERAL OBLIGATIONS
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services, and assure that Supplier are presented with any instructions from manucacturer or other relevant party;
(b) provide, for the Supplier Engineer, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier or the Supplier Engineer;
(c) provide, in a timely manner, such In-put Material and other information as the Supplier may reasonably require, and ensure that it is accurate in all material respects;
(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;
(e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises;
(f) allow the Supplier Engineer to contact the Supplier by telephone or fax whenever so desired by the Supplier Engineer; and
(g) ensure that all requests, whether oral or in writing, presented by the Supplier Engineer in respect of the Services, other practicalities or personal welfare is given due attention;
(h) The customer is responsible to assure health and safety on board a vessel for each person/engineer, furthermore to return each person/engineer to a port in Norway in case return to Norway is not possible within reasonable time (14 days after completed work).
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
5.3 Any additional time or cost occurred due to delays caused by customer or 3rd party, incorrect or incomplete installation, incorrect or incomplete commissioning, damages, lack of test loads, lack of craneage/tools/equipment, lack of access to the equipment, crane not being operative at the time of attendance, insufficient weather conditions such as but not limited to wave height or winds, will be charged according to supplier`s official service rates.
5.4 The Supplier shall always be entitled to use advisers, agents, service partners and/or subcontractors to provide the Services on the Supplier’s behalf.
5.5 Customer is responsible for having installed (and started up) the equipment in accordance with manufacturers instructions, relevant documentation, having power available, having filled the equipment with hydraulic oil, gear oil, etc., as required, having thoroughly cleaned any hydraulic piping installed on deck or in vessel, having qualified equipment operators available, responsible for operation of equipment, and responsible for safety on site.
5.6 Customer are at all times responsible for the scope and for the work carried out by supplier and any subcontractors, furthermore the customer are responsible for any deliveries, including but not limited to correct instructions, correct method statements, correct installation, correct verifications, that may be required for sucessfull completion. Supplier do not have manufacturers information and solely rely on customers information.
6. DELIVERY, PASSING OF RISK
6.1 Delivery of any Spare Parts or Other Equipment as part of the Services is, unless otherwise agreed, Ex-Works (Incoterms2010), Engineering Consult AS / Future Services’ supplying facility. Products supplied shall remain Engineering Consult AS / Future Services’ property until full payment of the purchase price for such Products. Customer is at all times responsible for the scope and for the work carried out by supplier and any subcontractors, furthermore the customer si responsible for any deliveries, including but not limited to correct instructions, correct method statements, correct installation, correct verifications, that may be required for successful completion. Supplier do not have manufacturers information and solely rely on customers information.
6.2 Delivery of Spare Parts as direct sale is, unless otherwise agreed, Ex-Works (Incoterms2010), Engineering Consult AS / Future Services’ supplying facility. Products supplied shall remain Engineering Consult AS / Future Services’ property until full payment of the purchase price for such Products.
6.3 The compliance by Future Services with any timelines for delivery is subject to the complete fulfillment of Customer’s contractual and cooperation obligations
7. TIME FOR DELIVERY OF SERVICE
7.1 The Supplier shall use reasonable endeavors to meet any milestones specified in the Service Order, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence under the Contract.
8. CHANGE CONTROL, VARIATIONS
8.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
8.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the Supplier’s charges arising from the change; (iii) the likely effect of the change on the Service Order; and (iv) any other impact of the change on the Contract.
8.3 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Service Order and any other relevant terms of the Contract to take account of the change and the Contract has been varied in accordance with clause 15.
8.4 Notwithstanding clause 8.3, the Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services, and shall provide immediate notice to the Customer in the event of such change of Services taking place.
8.5 The Supplier may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with clause 9.
9. CHARGES AND PAYMENT
9.1 In consideration for the provision of the Services by the Supplier, the Customer shall pay the fees invoiced by the Supplier based on the hourly rates and charges as set out in the Quotation, which shall be on a time and materials basis. The figures provided in the Quotation shall, whether in respect of hourly rates or anticipated time required or otherwise, and unless otherwise stated in the Service Order, always be an estimation only.
9.2 In respect of Services provided:
(a) the charges payable for the Services shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Quotation and as amended from time to time by the Supplier upon giving written notice;
(b) The Supplier will charge any occurred documented cost plus a minimum of 12 hours per day in respect of each person/engineer, regardless of the amount of work carried out. For occurred documented cost, this may be but is not limited to materials supplied without any quotation, and reference shall be made to original bills and receipts and be marked up with an administration fee of maximum +15%. In case cancellations of travel arrangements, flights, closed borders, limited access to a country, limited access to port or vessel, diseases, quarantine, epidemics, pandemics, the Supplier will charge any occurred cost plus a minimum of 12 hours work per day in respect of each person/engineer.
(c) unless otherwise agreed the Supplier shall be entitled to charge an overtime rate of 50% of the normal hourly rate on a pro-rata basis for each hour worked by a Supplier Engineer outside the hours referred to in clause 9.2(b);
(d) reasonable time spent by the Supplier Engineer for mobilization, demobilization and reporting will be charged as normal working time;
(e) the Supplier Engineer shall be entitled to work every day, including weekends and/or national holidays at the same hourly rates as specified in the Quotation. Local rules and regulations as applicable to the Supplier shall apply to the Supplier Engineer;
(f) all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate;
(g) the Supplier shall ensure that every Supplier Engineer completes time sheets recording time spent on the Services, and the Supplier shall use such time sheets to calculate the charges covered by each invoice referred to in clause 9.2(h); and
(h) the Supplier shall invoice the Customer in arrears for its charges for time, expenses and materials including any relevant Spare Parts or Other Equipment or other equipment delivered as part of the provision of the Services (together with VAT where appropriate), calculated as provided in this clause 9.2 and clause 9.3. Each invoice shall include a copy of the relevant time sheet and other expense statement by each Supplier Engineer and provide a detailed breakdown of any expenses and materials, accompanied by relevant receipts.
9.3 Unless expressly excluded the cost of hotel, subsistence, travel and any other ancillary expenses reasonably incurred by the Supplier Engineer in connection with the Services shall be invoiced in addition to the above by the Supplier. Such expenses shall be invoiced by the Supplier at cost price. Travel time to be charged as set out in clause 9.2.
9.4 Unless otherwise specified, the Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 15 days of receipt to a bank account nominated in writing by the Supplier.
9.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) claim interest on all outstanding overdue amounts in accordance with, and at the applicable rate in force from time to time pursuant to, the Norwegian law on overdue payments (No: forsinkelsesrenteloven); and/or
(b) suspend all Services until payment has been made in full.
9.6 Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party in respect of the Contract against any amounts payable by it to the other party under the Contract.
9.7 In case Supplier provides remote support by connecting to machine via internet, from Supplier address/facilities, then a minimum of 3 hours will be charged per session, regardless of the amount of work carried out.
Special conditions for provision of services that is included in delivery of new equipment, for example but not limited to services such as assistance with:
(a) FAT, or;
(b) Commissioning / Startup, or;
(c) HAT, or;
(d) SAT, or;
(e) Warranty claim,
Except for warranty claim, the standard amount of included service day rates for on site work, is 2 days per equipment delivery, unless other is specified.
10. DELAYS AND DEFECTS
10.1 Without prejudice to clause 7.1, in the event there is delay to the delivery of Services and such delay is not:
(a) communicated by the Supplier to the Customer as soon it becomes reasonably clear to the Supplier that such delay will occur; or
(b) caused in part by the Customer; or
(c) caused in part by a Force Majeure Event,
the Customer shall, for each week the delivery is delayed, be entitled to liquidated damages accruing at a weekly rate of 0.15% of the total Contract price estimation as set out in the Contract. Liquidated damages shall, however, not exceed a maximum of 5% of the total contract price or NOK 200.000. Except for this, the Supplier shall have no liability what so ever towards the Customer or any third party in respect of any losses, damages, claims, costs and/or expenses whatsoever arising from or in connection with the Contract, unless directly and solely caused by the gross negligence or willful misconduct of the Supplier.
In no event shall any delay or defect give the Customer a right to terminate the Contract.
Unless otherwise agreed, the Supplier shall have the right to remedy any defect at its own reasonable cost, however the customer shall contribute to a reduced cost for the supplier by preservation, limiting damages, and assigning qualified ship or rig crew to follow supplier instructions for parts replacement or minor repairs. In case of supplier engineer attendance, customer will be charged for travel time, stand-by/waiting time, travel cost, expenses, according to official rates and documented cost (+15%).
In case of transport damages there must be an CMR documenting the damages.
Insufficient storage, insufficient installation, wrong use and lack of preservation, maintenance, etc., will terminate customers right to claim remedy of defects, and will be charged according to supplier`s official service rates according to section 3 of these terms.
11. LIMITATION OF LIABILITY AND INDEMNIFICATION
11.1 Except for as set out in clause 10 and subject to clause 11.2, the Supplier shall have no liability what so ever towards the Customer or any third party in respect of any losses, damages, claims, costs and/or expenses whatsoever arising from or in connection with the Contract.
11.2 Any liability arising pursuant to clause 11.1 shall be upwards limited to an aggregate total amount equal to the total payment(s) actually paid by the Customer to the Supplier pursuant to the Contract. However any liability shall never exceed NOK 200.000,- regardless of cause.
11.3 The Supplier shall indemnify the Customer from and against any claim concerning (i) personal injury to or loss of life of any of the Supplier Engineers and (ii) loss of or damage to any property of the Supplier or the Supplier Engineer which might arise in connection with the Services. This applies regardless of any form of liability, whether strict or by negligence, in whatever form, on the part of the Customer or its employees, officers, representatives, advisers, agents or subcontractors. The Supplier shall take all reasonable steps to ensure that its representatives, advisers, agents or subcontractors waive their right to make any claim against the Customer and its employees, officers, representatives, advisers, agents or subcontractors when such claims are covered by the Supplier’s obligation to indemnify under the provision of this clause.
11.4 The Customer shall indemnify the Supplier from and against any claim concerning (i) personal injury to or loss of life of any of the Customer’s employees, officers, representatives, advisers, agents or subcontractors and (ii) loss of or damage to any property of the Customer or its employees, officers, representatives, advisers, agents or subcontractors, and which might arise in connection with the Services. This applies regardless of any form of liability, whether strict or by negligence, in whatever form, on the part of the Supplier or its employees, officers, representatives, advisers, agents or subcontractors. The Customer shall take all reasonable steps to ensure that its representatives, advisers, agents or subcontractors waive their right to make any claim against the Supplier and its employees, officers, representatives, advisers, agents or subcontractors when such claims are covered by the Customer’s obligation to indemnify under the provision of this clause.
11.5 The Customer shall indemnify the Supplier and the Supplier Engineer from the own indirect losses of the Customer and its employees, officers, representatives, advisers, agents or subcontractors, and the Supplier shall indemnify the Customer and its employees, officers, representatives, advisers, agents or subcontractors from the own indirect losses of the Supplier and the Supplier Engineer. This applies regardless of any liability, whether strict or by negligence, in whatever form, on the part of either the Customer or the Supplier or their respective employees, officers, representatives, advisers, agents or subcontractors and regardless of any other provision of the Contract. Indirect losses according to this provision include but are not limited to loss of earnings, loss of profit, loss due to pollution and loss of production.
11.6 Sub-contracted services on behalf of customer is not warranted by supplier and the customer is responsible for claim direct to sub-contractor
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the material terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 90 days of that party being notified in writing of the breach; or
(c) the other party commences bankruptcy, insolvency and/or winding-up proceedings or appoints a receiver or administrator or commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors.
12.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 14 (Proprietary Rights, Confidentiality), clause 11 (Limitation of liability), clause 17 (Notices), clause 18 (Dispute resolution and jurisdiction) and clause 19 (Governing law).
13. FORCE MAJEURE
13.1 Force majeure means an occurrence beyond the control of the party affected, provided that such party could not reasonably have foreseen such occurrence at the time of entering into the Contract and could not reasonably have avoided it or overcome its consequences («Force Majeure Event»).
13.2 A party shall not be considered to be in breach of the Contract to the extent it is proven that such party was unable to fulfill its contractual obligations due to force majeure. Each party shall cover its own costs resulting from force majeure.
The party invoking force majeure shall notify the other party thereof without undue delay. Such notice shall also include the cause of the delay and the presumed duration thereof.
13.3 If the Force Majeure Event prevails for a continuous period of more than 90 days, either party may terminate the Contract by giving 60 days’ written notice to the other party. On the expiry of this notice period, this Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.
14. PROPRIETARY RIGHTS, CONFIDENTIALITY
14.1 Any LA/LSA Spare Parts or other items manufactured specifically for the Customer as part of the Services shall become the Customer’s sole property at the same time as the risk passes pursuant to clause 6.1.
14.2 All information exchanged or otherwise transferred between the parties shall be treated as confidential and shall not be disclosed to any third parties without the prior written consent of the other party. A party may nevertheless disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
14.3 The parties shall ensure that their employees, officers, representatives, advisers, agents or subcontractors to whom they disclose such information comply with this clause 14.
15.1 Subject to clause 8, no variation of the Contract or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.1 The Customer shall not, without the prior written consent of the Supplier (such consent not to be unreasonably withheld), assign or transfer or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 The Supplier may at any time assign or transfer all or any of its rights or obligations under the Contract, subject to such assignment or transfer being in writing and ensuring that the rights and benefits of the Customer under the Contract shall, in the reasonable opinion of the Supplier, not be infringed in any way.
17.1 A notice given to a party under the Contract:
(a) shall be in writing and in English (or accompanied by a properly prepared translation into English);
(b) shall be signed by or on behalf of the party giving it; and
(c) shall be sent for the attention of the person, at the address or e-mail address specified in the Contract, unless otherwise separately agreed by the parties.
18. DISPUTE RESOLUTION AND JURISDICTION
18.1 If any dispute arises in connection with the Contract, representatives for the Customer and Supplier shall, within 14 days of a written request from one party to the other, meet (either in person or by phone) in a good faith effort to resolve the dispute.
18.2 If the dispute cannot be settled amicably, the dispute shall be finally decided by arbitration according to the Norwegian Arbitration Act of 14 May 2004 no. 25. In any such arbitration the number of arbitrators shall be 3 (three), each party nominating 1 (one) arbitrator each and the third arbitrator nominated by the parties jointly. The arbitration shall be conducted in the English language and take place in Kristiansand, Norway. The governing law as set out in clause 19.1 shall apply to any such arbitration proceeding.
19. DISPUTE RESOLUTION AND JURISDICTION
19.1 This Contract as well as all other agreements resulting from it, any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, construed and interpreted in accordance with the laws of Norway, including Norwegian rules concerning conflict of laws.
20. RENTAL EQUIPMENT
20.1 Rental of equipment, unless otherwise indicated, rental rates are on a per day basis and such rates shall apply to each piece of equipment or part rented.
A manifest (inventory list) will be available for toolboxes and tool containers, and will document each piece of equipment or part rented.
Single pieces of equipment or single parts, will normally only have a commercial, proforma, or final invoice, related to an order for rental of such.
20.2 Transportation of rental equipment is EXW “Incoterms 2010” unless otherwise is agreed in written, and customer is responsible for the equipment or part in the entire rental period.
20.3 Rental period starts on, and includes the day which the equipment or parts has been made ready for shipment by supplier, at suppliers address.
Rental period ends after the equipment or parts has been returned by customer and received by supplier, at supplier`s address.
20.4 Transportation cost, export and/or import fees or clearances, are the sole cost of customer.
Unless otherwise is agreed in written, the address for pickup and return of rental equipment or parts are: Engineering Consult AS (Future Services), Birkedalsveien 24A, 4640 Søgne, Norway.
20.5 Customer, at its sole cost, shall provide and maintain insurance against the loss, theft, damage or destruction of the rental equipment and parts. The coverage shall be in an amount not less than the new replacement price of the rental equipment and parts. In case of any damages or losses etc., customer must document and report this to supplier immediately, and it is the responsibility of customer to claim such with the transportation company or insurance company.
20.6 Furthermore, in case of any damages or losses, supplier reserve the right to invoice customer rental rates for the intended hire period, and in addition to invoice replacement of any equipment or parts damaged or lost during hire period.
20.7 (These terms and conditions applies for Purchasing only if specified in Engineering Consult (Future Services) Purchase Order. Engineering Consult (Future Services) will then be the customer)
Engineering Consult (Future Services) per 01.01.2018