Purchase Requisition Terms and Conditions
1. SERVICES & DELIVERABLES. First Competence Ltd agrees to provide to Company (or its subsidiaries, if such subsidiaries are designated as the contracting parties in the purchase requisition) (hereinafter referred to as “COMPANY”) the services ("Services") and / or goods (“Goods”), described in any purchase order, in accordance with these Terms and Conditions ("Agreement"). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, First Competence Ltd shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order, whether First Competence Ltd acknowledges or otherwise signs this Agreement or the purchase order, unless First Competence Ltd objects to such terms in writing prior to shipping Goods or commencing Services. This writing does not constitute a firm offer, and may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded, or otherwise altered, except by writing signed by an authorized COMPANY representative. Any terms or conditions contained in any acknowledgment, invoice, or other communication of First Competence Ltd, which are inconsistent with the terms and conditions herein, are hereby rejected. To the extent that this Agreement might be treated as an acceptance of First Competence Ltd’s prior offer, such acceptance is expressly made on condition of assent by First Competence Ltd to the terms hereof and shipment of the Goods or beginning performance of any Services by First Competence Ltd shall constitute such assent. COMPANY hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or prior to commencement of any Services. COMPANY shall not be subject to any charges or other fees as a result of such cancellation.
2. DELIVERY. Time is of the essence. Delivery of Goods and Services shall be made pursuant to the schedule, via the carrier, and to the place specified on the face of the applicable purchase order. COMPANY reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule. If no delivery schedule is specified, the order shall be filled promptly and delivery will be made by the most expeditious form of land transportation. If no method of shipment is specified in the purchase order, First Competence Ltd shall use the least expensive carrier. In the event First Competence Ltd fails to deliver the Goods or Services within the time specified, COMPANY may, at its option, decline to accept performance and terminate the Agreement or may demand its allocable fair share of First Competence Ltd’s available Goods and terminate the balance of the Agreement. First Competence Ltd shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labelled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. COMPANY’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading.
3. IDENTIFICATION, RISK OF LOSS, & DESTRUCTION OF GOODS. First Competence Ltd assumes all risk of loss until receipt by COMPANY. Title to Goods shall pass to COMPANY upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to COMPANY, COMPANY may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, COMPANY shall have the right to require delivery of the Goods not destroyed.
4. PAYMENT. As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to COMPANY as provided herein, COMPANY shall pay First Competence Ltd (i) the amount agreed upon and specified in the applicable purchase order, or (ii) First Competence Ltd’s quoted price on date of shipment (for Goods), or the date Services were started (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts, and government imposed surcharges shall be stated separately on First Competence Ltd's invoice. First Competence Ltd’s invoice will not be accepted unless it contains details of the applicable purchase order and all supporting documentation as defined in the applicable purchase order. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by COMPANY of Goods conforming to the purchase order shall be borne by First Competence Ltd. First Competence Ltd shall invoice COMPANY for all Goods delivered and all Services actually performed. Each invoice submitted by First Competence Ltd must be provided to COMPANY within ninety (90) days of completion of the Services or delivery of Goods and must reference the applicable purchase order, and COMPANY reserves the right to return all incorrect invoices. COMPANY will receive a 2% discount of the invoiced amount for all invoices that are submitted more than ninety (90) days after completion of the Services or delivery of the Goods. Unless otherwise specified on the face of a purchase order, COMPANY shall pay the invoiced amount within ninety (90) days after receipt of a correct invoice. First Competence Ltd will receive no royalty or other remuneration on the production or distribution of any products developed by COMPANY or First Competence Ltd in connection with or based on the Goods or Services provided.
5. WARRANTIES. 5.1 Services: First Competence Ltd represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, First Competence Ltd represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. First Competence Ltd represents and warrants that the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which First Competence Ltd is bound. 5.2 Goods: First Competence Ltd warrants that all Goods provided will be new and will not be used or refurbished. First Competence Ltd warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to COMPANY or for the period provided in First Competence Ltd’s standard warranty covering the Goods, whichever is longer. Additionally, Goods purchased shall be subject to all written and oral express warranties made by First Competence Ltd’s agents. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. The technical content in First Competence Ltd material shall offer guidance only and will reflect accepted practices aimed at product safe use and the delivery of safe lifting operations. The Client must satisfy themselves / accept ownership of the information contained in the supplied material; ensuring that it is applicable / suitable and compliant with applicable Legislation, Regulations, product safe use information and company procedures. First Competence Ltd makes no representations or warranties of any kind and shall have no liability or responsibility for any loss or damage incurred, or alleged to have occurred, directly or indirectly, with respect to the use of the guidance contained in or omitted from First Competence Ltd material. Book covers, posters and mats are designed for internal use and should not be displayed in direct, prolonged sunlight.
6. INSPECTION. COMPANY shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and performance hereunder shall not be deemed accepted until COMPANY has run an adequate test to determine whether the Goods and Services conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If performance tendered does not wholly conform with the provisions hereof, COMPANY shall have the right to reject such performance. Nonconforming Goods will be returned to First Competence Ltd freight collect and risk of loss will pass to First Competence Ltd upon COMPANY’s delivery to the common carrier.
7. INDEPENDENT CONTRACTOR. COMPANY is interested only in the results obtained under this Agreement; the manner and means of achieving the results are subject to First Competence Ltd's sole control. First Competence Ltd is an independent contractor for all purposes, without express or implied authority to bind COMPANY by contract or otherwise. Neither First Competence Ltd nor its employees, agents or subcontractors ("First Competence Ltd’s Assistants") are agents or employees of COMPANY, and therefore are not entitled to any employee benefits of COMPANY, including but not Ltd to, any type of insurance. First Competence Ltd shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide First Competence Ltd's own supplies and equipment.
8. FIRST COMPETENCE LTD RESPONSIBLE FOR TAXES AND RECORDS. First Competence Ltd shall be solely responsible for paying all taxes or fees, including estimated taxes and employment taxes, due with respect to First Competence Ltd's receipt of payment under this Agreement. First Competence Ltd further agrees to provide COMPANY with reasonable assistance in the event of a government audit. COMPANY shall have no responsibility to pay or withhold from any payment to First Competence Ltd under this Agreement, any federal, state, or local taxes or fees. All taxes and duties incurred by reason of services and / or the export of the products to any country outside the United Kingdom and all import duties, sales taxes, withholding taxes, and any other duties, taxes, levies or impositions whatever shall be borne by the COMPANY.
9. INSURANCE. First Competence Ltd shall be solely responsible for maintaining and requiring First Competence Ltd’s Assistants to maintain such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in First Competence Ltd's and First Competence Ltd's Assistants' trades or businesses, whichever affords greater coverage. Upon request, First Competence Ltd shall provide COMPANY with certificates of insurance or evidence of coverage before commencing performance under this Agreement. First Competence Ltd shall provide adequate coverage for any COMPANY property under the care, custody or, control of First Competence Ltd or First Competence Ltd's Assistants.
10. INDEMNITY. First Competence Ltd shall indemnify, hold harmless, and at COMPANY's request, defend COMPANY, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, (ii) First Competence Ltd failing to satisfy the Internal Revenue Service’s guidelines for an independent contractor, (iii) any claim based on the negligence, omissions, or wilful misconduct of First Competence Ltd or any First Competence Ltd’s Assistants, and (iv) any claim by a third party against COMPANY alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, whether such are provided alone or in combination with other products, software, or processes. First Competence Ltd shall not settle any such suit or claim without COMPANY's prior written approval. First Competence Ltd agrees to pay or reimburse all costs that may be incurred by COMPANY in enforcing this indemnity, including attorneys' fees. Should COMPANY’s use, or use by its distributors, subcontractors, or customers, of any Goods or Services purchased from First Competence Ltd be enjoined, be threatened by injunction, or be the subject of any legal proceeding, First Competence Ltd shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for COMPANY, its distributors, subcontractors, or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
11. CONFIDENTIALITY. First Competence Ltd will acquire knowledge of COMPANY Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such COMPANY Confidential Information in confidence during and following termination or expiration of this Agreement. "COMPANY Confidential Information" includes but is not Ltd to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein), and other material or information considered proprietary by COMPANY relating to the current or anticipated business or affairs of COMPANY which is disclosed directly or indirectly to First Competence Ltd. In addition, COMPANY Confidential Information means any third party's proprietary or confidential information disclosed to First Competence Ltd in the course of providing Services or Goods to COMPANY. COMPANY Confidential Information does not include any information (i) which First Competence Ltd lawfully knew without restriction on disclosure before COMPANY disclosed it to First Competence Ltd, (ii) which is now or becomes publicly known through no wrongful act or failure to act of First Competence Ltd, (iii) which First Competence Ltd developed independently without use of the COMPANY Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to First Competence Ltd by a third party as a matter of right and without restriction on disclosure. In addition, First Competence Ltd may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as First Competence Ltd provides prompt notice to COMPANY of such requirement prior to disclosure. First Competence Ltd agrees not to copy, alter, or directly or indirectly disclose any COMPANY Confidential Information. Additionally, First Competence Ltd agrees to limit its internal distribution of COMPANY Confidential Information to First Competence Ltd's Assistants who have a need to know, and to take steps to ensure that the dissemination is so Ltd, including the execution by First Competence Ltd's Assistants of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will First Competence Ltd use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of COMPANY Confidential Information. First Competence Ltd further agrees not to use the COMPANY Confidential Information except in the course of performing hereunder and will not use such COMPANY Confidential Information for its own benefit or for the benefit of any third party. The mingling of the COMPANY Confidential Information with information of First Competence Ltd shall not affect the confidential nature or ownership of the same as stated hereunder. First Competence Ltd agrees not to design or manufacture any products which incorporate COMPANY Confidential Information. All COMPANY Confidential Information is and shall remain the property of COMPANY. Upon COMPANY's written request or the termination of this Agreement, First Competence Ltd shall return, transfer, or assign to COMPANY all COMPANY Confidential Information, including all Work Product, as defined herein, and all copies thereof.
12. OWNERSHIP OF WORK PRODUCT. For purposes of this Agreement, "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived, or developed by First Competence Ltd, alone or with others, which result from or relate to the Services performed hereunder. Standard Goods manufactured by First Competence Ltd and sold to COMPANY without having been designed, customized, or modified for COMPANY do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of COMPANY. First Competence Ltd hereby agrees to irrevocably assign and transfer to COMPANY and does hereby assign and transfer to COMPANY all of its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. COMPANY will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name, or to follow any other procedure that COMPANY deems appropriate. First Competence Ltd agrees: (a) to disclose promptly in writing to COMPANY all Work Product in its possession; (b) to assist COMPANY in every reasonable way, at COMPANY's expense, to secure, perfect, register, apply for, maintain, and defend for COMPANY's benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in COMPANY’s name as it deems appropriate; and (c) to otherwise treat all Work Product as COMPANY Confidential Information as described above. These obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by COMPANY to First Competence Ltd shall remain the sole property of COMPANY. First Competence Ltd will ensure that First Competence Ltd's Assistants appropriately waive any and all claims and assign to COMPANY any and all rights or any interests in any Work Product or original works created in connection with this Agreement. First Competence Ltd irrevocably agrees not to assert against COMPANY or its direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of First Competence Ltd affecting the Work Product. COMPANY will not have rights to any works conceived or reduced to practice by First Competence Ltd which were developed entirely on First Competence Ltd's own time without using equipment, supplies, facilities, or trade secret or COMPANY Confidential Information, unless (i) such works relate to COMPANY's business, or COMPANY's actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by First Competence Ltd for COMPANY
13. NONINTERFERENCE WITH BUSINESS. During and for a period of two years immediately after the termination or expiration of this Agreement, First Competence Ltd agrees not to unlawfully interfere with the business of COMPANY in any manner, and further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual, or other relationship with COMPANY.
14. TERMINATION. COMPANY may terminate this Agreement upon written notice to First Competence Ltd if First Competence Ltd fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, COMPANY shall pay First Competence Ltd for the portion of the Services satisfactorily performed and those conforming Goods delivered to COMPANY through the date of termination, less appropriate offsets, including any additional costs to be incurred by COMPANY in completing the Services. COMPANY may terminate this Agreement for any other reason upon thirty (30) days' written notice to First Competence Ltd. First Competence Ltd shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, COMPANY shall be liable to First Competence Ltd only for those Services satisfactorily performed and those conforming Goods delivered to COMPANY through the date of termination, less appropriate offsets. Upon the expiration or termination of this Agreement for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (b) First Competence Ltd will promptly notify COMPANY of all COMPANY Confidential Information or any Work Product in First Competence Ltd’s possession and, at the expense of First Competence Ltd and in accordance with COMPANY’s instructions, will promptly deliver to COMPANY all such COMPANY Confidential Information and/or Work Product.
15. REMEDIES. If First Competence Ltd breaches this Agreement, COMPANY shall have all remedies available by law and at equity. For the purchase of Goods, First Competence Ltd’s sole remedy in the event of breach of this Agreement by COMPANY shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to this transaction. First Competence Ltd shall have no right to resell Goods for COMPANY’s account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by COMPANY and any resale so made shall be for the account of First Competence Ltd.
16. FORCE MAJEURE. COMPANY shall not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not Ltd to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment, or transportation. In the event COMPANY is so excused, either party may terminate the Agreement and COMPANY shall at its expense and risk, return any Goods received to the place of shipment.
17. ATTORNEYS' FEES. In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys' fees, in addition to any other relief to which it may be entitled.
18. SEVERABILITY. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
19. LIMITATION OF LIABILITY. In no event shall company be liable to First Competence Ltd or First Competence Ltd's assistants, or any third party for any incidental, indirect, special, or consequential damages arising out of, or in connection with, this agreement, whether or not company was advised of the possibility of such damage, and whether or not there is a failure of any agreed remedy. Company is signatory to the 2012 industry mutual hold harmless deed. First Competence Ltd accepts terms of the deed by accepting company’s purchase order.
20. ASSIGNMENT; WAIVER. First Competence Ltd may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of COMPANY. Any assignment or transfer without such written consent shall be null and void. A waiver of any defaults hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
21. NONEXCLUSIVE AGREEMENT. This is not an exclusive agreement. COMPANY is free to engage others to perform Services or provide Goods the same as or similar to First Competence Ltd's. First Competence Ltd is free to, and is encouraged to, advertise, offer, and provide First Competence Ltd's Services and/or Goods to others; provided however, that First Competence Ltd does not breach this Agreement.
22. NOTICES. Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted,, all notices, and other communications hereunder shall be in writing, and shall be addressed to First Competence Ltd or to an authorized COMPANY representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed email or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
23. SURVIVAL OF OBLIGATIONS. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
24. GOVERNING LAW. This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of England. Jurisdiction and venue over all controversies arising out of, or relating to, this Agreement shall be in England.
25. ENTIRE AGREEMENT; MODIFICATION. This Agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by COMPANY, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by First Competence Ltd. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.
26. COMPLIANCE WITH LAWS.26.1 General: First Competence Ltd shall comply fully with all applicable federal, state, and local laws in the performance of this Agreement including, but not Ltd to, all applicable employment, tax, export control, and environmental laws. 26.2 Hazardous Materials: If Goods include hazardous materials, First Competence Ltd represents and warrants that First Competence Ltd understands the nature of any hazards associated with the manufacture, handling, and transportation of such hazardous materials 26.3 Customs: Upon COMPANY’s request, First Competence Ltd will promptly provide COMPANY with a statement of origin for all Goods.
Terms and Conditions for the Performance of Services and Sale of Goods
A. General Terms and Conditions
1. These General Terms and Conditions for the Performance of Services and Sale of Goods together with the applicable Particular Terms and Conditions and any special terms and conditions referenced in the quotation shall apply to all Services (as hereinafter defined) performed or Goods (as hereinafter defined) sold by First Competence Ltd and accepted by the person firm or company (“Company”) identified in First Competence Ltd quotation to the Company.
2. These Terms and Conditions shall continue for the period necessary to ensure completion of the Services to be performed by First Competence Ltd or until delivery of the Goods sold by First Competence Ltd to the Company.
3. Company shall, in consideration of the performance of the Services, or sale of Goods by First Competence Ltd in accordance with First Competence Ltd quotation, pay to First Competence Ltd the prices set out there in within 30 days of the date of receipt of First Competence Ltd invoice.
4. In the event of late payment Company shall pay interest on overdue amounts at the Bank of England Base Rate plus eight percent from the date on which payment became due.
5. Notwithstanding the foregoing, First Competence Ltd reserves the right to require the Company to provide an irrevocable Letter of Credit with an international bank in terms acceptable to First Competence Ltd or an advance payment deposited into a First Competence Ltd nominated account for the estimated final value of the Services.
6. Each party shall be responsible for and shall release, defend, indemnify and hold harmless the other party including, as may be applicable, the other party's client, contractors, subcontractors, vendors, sub-vendors and the officers, directors, employees, servants and agents of any of the foregoing (hereinafter referred to as "Group") from and against any and all claims, liabilities, costs (including legal costs), damages and expenses of every kind and nature howsoever arising in respect of (i) personal injury to or sickness, illness, disease or death of any employee of the indemnifying party and its respective Group; and, (ii) loss of or damage to any property procured, owned, hired or leased by the indemnifying party and its respective Group; and (iii) indirect or consequential losses including but not Ltd to business interruption, loss of facility, loss of production, loss of product, loss of use, loss of revenue, loss of profit or anticipated profit, as a result of or arising out of or relating to or in connection with the performance of Services or sale of Goods hereunder, irrespective of cause and irrespective of the sole or contributory negligence or breach of duty (contractual, statutory or otherwise) or any liability in tort, contract, statute or otherwise at law, of the indemnified party or its respective Group.
7. The Company shall release, defend, indemnify and hold harmless the First Competence Ltd Group from and against any and all claims, liabilities, costs (including legal costs), damages and expenses of every kind and nature howsoever arising in respect of (i) loss of or damage to the Company’s, or Company’s client’s, well (including casing and associated materials and services), any subsurface reservoir, geological formation or strata and for loss of any oil or gas or other minerals or liquids there from; and, (ii) blow-out, fire, explosion and/or killing or control of any well which shall have become out of control for any reason, including but not Ltd to debris removal; and, (iii) pollution or seepage emanating from the reservoir or from the property of the Company Group and its removal and clean up as a result of or arising out of or relating to or in connection with the performance of Services or sale of Goods hereunder, irrespective of cause and irrespective of the sole or contributory negligence or breach of duty (contractual, statutory or otherwise) or any liability in tort, contract, statute or otherwise at law of the First Competence Ltd Group.
8. Each party shall be responsible for and shall release, defend, indemnify and hold harmless the other party and its Group from and against all claims, proceedings, damages, expenses, liabilities and losses, including (without limitation) costs and legal fees arising out of or in connection with (a) personal injuries to, including death of, and (b) loss or damage suffered by any third party, not being a member of either the Company Group or the First Competence Ltd Group, including damage to property arising out of or in connection with the performance of Services or sale of Goods hereunder, to the extent that such injury or death, loss or damage was attributable to the negligence of a Party or to its Group.
9. Except as otherwise provided herein or in the quotation, First Competence Ltd warranty against manufacturing defects in the permanently installed products or Goods that become the property of the Company is for a period of 12 months calculated from the date of installation by First Competence Ltd of such products or 12 months from the date of delivery of the Goods to the Company. The warranty given by First Competence Ltd herein does not apply to (i) used products or products that have been repaired or worked over; (ii) products that have been modified or subjected to improper handling, storage, installation, operation or maintenance by Company, including use of unauthorized replacement parts; (iii) component parts not manufactured by First Competence Ltd, whether procured by Company or supplied by First Competence Ltd, such parts being subject to any applicable manufacturer's warranty; (iv) parts requiring replacement because of natural wear and tear; or (v) the design on those jobs where First Competence Ltd prepared drawings or lists from designs furnished by others. First Competence Ltd liability for breach of this warranty is expressly Ltd to the repair or replacement, at its sole option, of any equipment or parts of equipment that prove to be defective during the warranty period. This Ltd express warranty, and the stated remedies for breach thereof, shall be in lieu of any and all other warranties, express or implied, including without limitation, warranties for merchantability or fitness for any particular purpose. Except as otherwise specifically agreed in writing by First Competence Ltd this warranty is not transferable to any person, firm or company to whom the Company may subsequently sell the permanently installed products. Except as provided above, First Competence Ltd warranty in respect of the provision of Services (including the installation of permanently installed products) is Ltd to a period of thirty days calculated from the date of completion of the Services. In the event that First Competence Ltd is required to repair or replace defective permanently installed products or Goods or re-perform the Services Company shall continue to provide, at no cost to First Competence Ltd, those materials, personnel, equipment and services normally provided by the Company in connection with the performance of the Services.]
10. Except as provided herein, neither party shall be entitled to assign or sub-contract any part of any order issued hereunder without the prior written approval of the other party. First Competence Ltd may sub-contract the procurement and fabrication of component parts of the permanently installed products or the Goods from recognised sources of supply.
11. Except as otherwise provided herein, each party shall, in respect of any taxes of any nature whatsoever incurred, due or owing by such party in the country of operations, indemnify and hold harmless the other party from and against any claims, penalties, expenses, liabilities, costs (including legal costs) arising out of or in connection with the performance of the Services or sale of Goods hereunder.
12. First Competence Ltd hereby indemnifies the Company from and against any and all liability for infringement of the intellectual property rights of any third party associated with the provision of permanently installed products to the Company except to the extent that such products have been modified at Company’s request or manufactured to Company’s specification. Nothing herein contained shall entitle the Company, or any end user, to assert any claim of any nature whatsoever in respect of the patent rights, copy right, trademarks, intellectual or other property rights in respect of the permanently installed products or Goods designed or provided by First Competence Ltd.
13. These Terms and conditions for the performance of Services or sale of Goods shall take precedence over and shall exclude any terms and conditions provided by the Company, or implied by trade, custom or practice in the country of operations.
14. In the event any act required under these Terms and Conditions is inconsistent with, penalised by or prohibited under the Laws of England or any country having jurisdiction over the performance of the Services or sale of Goods and/or either of the parties hereto, the party obligated hereunder to perform such act shall be excused from such performance and these Terms and Conditions construed as if such obligation had not been set forth herein.
15. Any provision of these Terms and Conditions that is now or hereafter prohibited, illegal or unenforceable in any applicable jurisdiction shall be ineffective to the extent of such prohibition, illegality or unenforceability without invalidating the remaining provisions hereof.
16. These Terms and Conditions, together with any quotation and acceptance thereof shall be governed, construed and interpreted, and shall take effect in accordance with Scottish Law. Any unresolved dispute shall be submitted to the exclusive jurisdiction of the Scottish Courts.
17. For the purpose of professional relations between Company and First Competence Ltd, the Parties agree not to participate in or to engage in one or more of the following acts: incite, convince or otherwise encourage any employee of the other Party to leave his position; incite, convince or otherwise encourage any employee, consultant, subcontractor or service provider of the other Party to stop meeting some or all of his professional obligations to his employer; solicit an employee from the other Party to hire him. This ban is valid regardless of the specialisation of the person in question. This commitment remains valid throughout the duration of performance of the Contract and its effects shall survive for a period of two (2) years as of expiration thereof. If this obligation is violated, the breaching Party must pay the other one an indemnification equal to twelve (12) times the gross monthly pay of the person in question in the compensation. This indemnification shall be considered a discharge from any claim concerning the aforementioned violation of the obligation.
18. Acceptance of orders against quotations or proposals is deemed accepted in its entirety by Company based upon First Competence Ltd receiving either; a) signed and dated copy of the proposal, or b) Company Purchase Order, or c) upon First Competence Ltd receiving written confirmation to perform the service under a call-off order or related document from Company, or d) First Competence Ltd providing the quoted services or goods to Company."
19. Cancellation of orders by Company after acceptance of the order will only be accepted if confirmed in writing. Cancellation charges in such cases will be based on the cost accrued to First Competence Ltd at the time of cancellation plus 15%.
20. All prices quoted are net prices in stated currency, except any tax, with-holding tax, VAT, levy, duty of whatsoever nature.
21. All proposals are valid for thirty (30) days from date of quotation unless otherwise stipulated.
B. Particular Terms and Conditions for the Provision of Services
1. "Services" shall mean the materials, equipment, or permanently installed products and personnel to be provided by First Competence Ltd as specified in First Competence Ltd quotation.
2. The date of and designated point for delivery of the materials, equipment or permanently installed products shall be as specified in First Competence Ltd quotation or, if not specified in the quotation, shall be at First Competence Ltd base in the country of operations. The Company will be responsible for the carriage and full insurance costs associated with the delivery and return of all materials, equipment and permanently installed products supplied by First Competence Ltd, based on Ex Works – Incoterms 2012 for deliveries and DDP – Incoterms 2012 for returns, unless agreed otherwise. Carriage and handling arranged by First Competence Ltd arranged on behalf of company shall be billed at cost +10%. Import duties and other taxes in the country of delivery or operations shall be borne by the Company.
3. Company shall provide and shall be responsible for the collection and delivery of the materials, equipment, or permanently installed products to and from First Competence Ltd operational base, unless otherwise specified in the quotation. At the request of the Company, First Competence Ltd will, subject to reimbursement of costs incurred, organize delivery to and/or collection of the materials, equipment and permanently installed products to/from the Company’s designated base.
4. Permanently installed products shall be adequately packed, palletised and protected to withstand transit and short-term storage in the manner specified in the quotation. Packages shall be clearly and conspicuously marked with First Competence Ltd quotation number and a packing note shall be enclosed in the package. Where permanently installed products are delivered Ex-Works packaging and transport shall be for the account of and/or organised by the Company.
5. Title to the permanently installed products shall remain with First Competence Ltd and shall only pass to the Company following payment of the purchase price. Risk in the permanently installed products shall pass to the Company on delivery of such products at the delivery point specified in First Competence Ltd quotation.
6. All materials and equipment provided by First Competence Ltd other than permanently installed products, at all times, remain the property of First Competence Ltd. First Competence Ltd shall ensure that all equipment is fully certified and will meet all relevant governmental standards and will not have any known damage or defect. Company shall indemnify and hold First Competence Ltd harmless from and shall keep First Competence Ltd materials and equipment free and clear of all liens, claims, assessments, fines and levies incurred, created, caused or committed by the Company Group.
7. Materials and equipment belonging to First Competence Ltd and used in the performance of the Services shall be adequately packed in baskets or containers, or shall be palletised and protected to withstand transit and short-term storage in the manner specified in the quotation. First Competence Ltd shall ensure that applicable certification accompanies all baskets, containers or slings.
8. The costs of post rental inspection repair and/or redress of equipment shall be borne by the Company unless otherwise specified in the quotation. The extent and costs of post rental repair and/or redress shall be subject to approval of the Company, which approval shall not be unreasonably withheld.
9. In the event that First Competence Ltd equipment is lost or damaged beyond repair whilst in hole and/or in the care, custody or control of the Company Group then the Company shall reimburse the replacement costs new of such equipment. Where a “lost-in-hole” charge is specified in the quotation such charge shall be paid in full. Company shall insure, or shall self-insure, First Competence Ltd equipment whilst in the care, custody or control of the Company Group.
10. First Competence Ltd shall provide all personnel and supervision necessary to perform the Services detailed in First Competence Ltd quotation. First Competence Ltd personnel shall be appropriately skilled and qualified for the work that such personnel will perform and will have been medically examined and pronounced fit for working offshore/onshore and shall have required offshore survival and fire fighting certificates.
11. Payment for rental of equipment utilised by First Competence Ltd in the performance of the Services shall be calculated from the time and date that such equipment leaves First Competence Ltd base in the country of operations or such other location until return thereto. Payment for personnel shall be calculated from the time and date that such personnel depart their normal work location whether in the country of operations or elsewhere until return of such personnel to their point of departure. Rates for rental of equipment are based on a 24 hour day. Rates for personnel assume a 12 hour working shift at the rig location and 8 hour day at main Aberdeen office location for Aberdeen based personnel. Personnel required at ‘offsite’ locations for meetings, preparation, or courses will be charged at typical offshore rate.
12. Company shall, if applicable, be responsible for obtaining all necessary customs clearances and any other permits required in respect of the importation/exportation of the permanently installed products and/or First Competence Ltd equipment into and from the country of operations.
13. All 3rd party services out with normal agreed contract rates will be subject to 10% administration charge.
C. Particular Terms and Conditions for the Sale of Goods
1. "Goods" shall mean the materials, equipment, or products to be sold to the Company by First Competence Ltd as specified in First Competence Ltd quotation.
2. These General Conditions of Sale of Goods shall continue for the period necessary to ensure delivery to and acceptance of the Goods by the Company.
3. Goods shall, unless specified in First Competence Ltd quotation, be delivered to the Company on an Ex-Works basis at the First Competence Ltd location specified in the quotation, in accordance with Incoterms 2012 published by the International Chamber of Commerce, Paris. In the event that Goods are to be delivered on a basis other than Ex-Works all costs, risks and obligations shall be borne by the Company as set out in the applicable category of Incoterms 2012 specified in the quotation.
4. The date of delivery of the Goods shall be as specified in First Competence Ltd quotation or, if not specified in the quotation, shall be subject to agreement between the Company and First Competence Ltd. In the event that Company fails to collect the Goods on the date specified, First Competence Ltd shall be entitled to charge the Company for the storage of such Goods notwithstanding that risk of loss or damage to the Goods shall have transferred to the Company.
5. Goods shall be adequately packed, palletised and protected to withstand transit and short-term storage in the manner specified in the quotation. Packages shall be clearly and conspicuously marked with First Competence Ltd quotation number and a packing note shall be enclosed in the package.
6. Title to the Goods shall transfer to Company once full payment has been received.
7. First Competence Ltd may, without any liability to the Company, terminate the provision of the Goods under for any reason by giving written notice of termination to the Company.
8. The Company shall, in respect of any taxes of any nature whatsoever incurred, due or owing by the Company or First Competence Ltd in the country of delivery of the Goods, indemnify and hold harmless First Competence Ltd against any claims, penalties, expenses, liabilities, costs (including legal costs) made or assessed against, or incurred by, First Competence Ltd arising out of or in connection with the sale and purchase of the Goods.