Standard Terms and Conditions of Purchase

Last updated: 24th August 2020

1.Definitions

1.1   The term “buyer” shall mean Apollo Offshore Engineering Limited.

1.2   The term “seller” shall mean the person, firm or company to whom the purchase order is issued.

1.3   The term “purchase order” shall mean the purchase order placed by the buyer with the seller for the supply of the goods.

1.4   The term “services” shall mean the services to be provided by the seller

1.5   The word “goods” includes all goods to be supplied by the seller under the purchase order and includes any labels, instructions or handbooks relating to the goods.

1.6   The “contract” shall mean the contract between the buyer and seller pursuant to the purchase order (as amended, varied or extended by any documents referred to in such purchase order) and any express terms agreed in writing between the parties but for the avoidance of doubt will not include any terms and conditions which the seller may seek to impose on the buyer.

1.7   The term the “date for delivery” shall mean the date for delivery specified in the purchase order.

1.8   The term “contract price” shall mean the sum stated in the purchase order to be paid by the buyer to the seller for the supply of the goods.

2. General

2.1   No terms and conditions of sale submitted or referred to by the seller in any quotation or tender or during the course of negotiations between the Parties shall form part of the contract unless the buyer specifically agrees in writing to their incorporation in the contract and confirms such agreement in the purchase order.

3. Amendment of conditions 

3.1   The Buyer shall not be bound by any variation, waiver or addition to these conditions except as agreed by the Parties in writing and signed on their behalf by one of their duly authorised officers.

4. Specification, Description, Sample and Standard

4.1   The Goods and/or Services shall conform in all respects with:

4.2   the provisions of the contract and in particular with any specification, drawings, descriptions or samples contained or referred to in the contract or provided by Apollo or its clients

4.3   any standards specified in the contract and where no standard is specified with the relevant British or international Standards

4.4   the requirements of any legislation currently in force at the date of delivery.

5. Quality and Fitness for Purpose

5.1   The Goods shall be of satisfactory quality and fit for their ordinary use as defined in the Sale and Supply of Goods Act 1994 including all aspects of quality

5.2   If the purpose for which the Goods and/or Services are to be used has been made known to the Seller expressly or by implication then all Goods/Services provided shall be fit for that purpose.

6. Delivery

6.1   Time shall be of the essence of the contract and the Goods/Services shall be delivered by the Seller to the Buyer by the date for delivery or any alternative date as provided for under clause 13.1 or as specified by Apollo or its end client.

6.2   The Seller shall supply the Buyer with such information regarding the progress of the supply of the goods/services as the Buyer or its client(s) may reasonably require.  The Seller shall inform the Buyer immediately in writing if the Seller is aware of anything that may delay delivery and the Buyer shall have the right to require the Seller to take such steps at the Seller’s expense in order to deliver the Goods/Services on time.

6.3   The Seller shall at his own expense deliver Goods to the Buyer at the delivery point specified in the Purchase Order or as required by the Buyer and unless otherwise specified delivery shall include off-loading of any Goods.  If any Goods are delivered incorrectly the Seller will be responsible for any additional expense incurred.

7. Passing of Property

7.1   The Goods/Services including all rights required to use them in the ordinary course of business shall become the property of the Buyer when they have been delivered in accordance with Clause 6 above without prejudice to the Buyer’s right to reject the goods/services under Clause 11.

8. Passing of Risk

8.1   The risk in the Goods/Services shall pass to the Buyer on completion of delivery in accordance with Clause 6 above provided that the risk in any Goods/Services rejected by the Buyer under Clause 11 shall revert to the Seller immediately upon notice being given by the Buyer of such rejection.

9. Contract Price

9.1   Unless otherwise specifically stated in the Order, the price for the Goods/Services shall be fixed and firm.

10. Payment Terms

10.1 The Seller shall be entitled to submit an invoice for the Goods/Services as soon as delivery has been completed or as otherwise stated on the Purchase Order.

10.2 Payment shall be made by the Buyer within ninety (90) days of receipt of an invoice properly prepared unless by the time when payment is due the Buyer has rejected the Goods/Services or part of them under Clause 11.

10.3 If the Buyer has rejected the Goods/Services or part of them without having made payment and such rejected Goods/Services are thereafter replaced by the Seller with Goods/Services which conform to the contract then payment shall be made by the buyer for the goods/services within 90 days of receipt of a properly prepared invoice for the replaced Goods/Services

11. Rejection

11.1 If any of the Goods/Services do not comply strictly with any of the terms of the contract the buyer may reject them within a reasonable time after delivery and irrespective of whether such Goods have been accepted or paid for and s.15A of the Sale of Goods Act 1979 shall not apply.

11.2 The Seller shall forthwith replace any such rejected Goods/Services with Goods/Services which conform to the contract and the terms of Clause 6 shall apply equally to such redelivered Goods/Services.

11.3 If the Seller does not so replace the rejected Goods/Services forthwith the Buyer shall have the right to purchase elsewhere replacement Goods/Services of the same or similar description and without prejudice to any other rights which the Buyer may have against the seller to recover from the Seller:

11.3.1        any payments made in respect of the rejected Goods/Services; and

11.3.2        the difference between the price of the rejected Goods/Services and the price of the replacement Goods/Services.

11.4 The Buyer may return any rejected Goods to the seller at the Seller’s risk. The Seller shall pay the cost of the carriage.

12. Inspection and Quality Assurance

12.1 The Buyer shall have the right subject to reasonable notice and being during normal working hours to check the progress and inspect the Goods/Services at the premises of the seller and of the Seller’s sub-contractors.

12.2 The Buyer may reject any of the Goods/Services or parts thereof which are not in accordance with the contract.

12.3 Any inspection, checking, or approval on behalf of the Buyer under this clause shall not relieve the Seller of any of its obligations under the contract.

12.4 The Seller shall ensure that the terms of its sub-contracts provide for the rights of the buyer as stated in this clause.

13. Delayed Delivery

13.1 If the Seller is delayed in the performance of the contract by any act or default of the Buyer or any circumstance of force majeure as defined in Clause 17 below the Buyer shall grant to the Seller such extension of the date for delivery of the Goods as may be reasonable. Notwithstanding the granting of any such extension the Seller shall use his best endeavours to deliver the goods by the date for delivery.

13.2 If the Seller shall fail to deliver the Goods/Services by the date for delivery or extended date under Clause 13.1 the Buyer shall be entitled to terminate the contract and purchase other Goods/Services of the same or similar description from elsewhere and recover from the Seller the amount by which the cost of purchasing such other Goods exceeds the contract price without prejudice to any other rights which the Buyer may have in respect of the Seller’s breach of contract.

14. Defects Liability

14.1 The Seller shall without delay and without cost to the Buyer repair, rework or replace at the Buyer’s option any of the Goods/Services which are or become defective within a period of 18 months from delivery or 12 months from putting into service, whichever shall be the longer, due to faulty workmanship or materials or faulty design, errors in instructions, labels or handbooks or any other breach by the Seller of his obligations under the contract or at law whether express or implied.

14.2 Any Goods/Services so replaced, reworked or repaired shall be subject to the like obligations for a further defects liability period of twelve (12) months from their re-delivery after repair or replacement.

14.3 If the Seller shall fail to so repair, rework or replace such defective Goods/Services the Buyer shall have the right to have the work of repair, rework or replacement undertaken by others and to recover the costs of so doing from the Seller.

14.4 The Seller shall further be liable to the Buyer for all direct damages sustained by the buyer arising out of the said defects in the Goods/Services.

15. Direct and Consequential Damages

15.1 If the Seller fails to perform its obligations under the contract then the Seller shall be liable to the Buyer for the damages arising directly and naturally in the ordinary course of events from the breach of contract concerned.

15.2 Except where specifically required by statute, neither Party shall be liable to the other for any indirect or consequential damages which the other may suffer arising out of any breach by a Party of its obligations under the contract and whether the same is due to the negligence of that Party or not.

16. Insurance

16.1 Both Parties shall at all times be adequately insured, with a reputable insurer, against all insurable liability under the contract.  If at any time requested by the either Party the other Party will provide sufficient documentary evidence to prove they comply with this clause.

17. Force Majeure

17.1 If either Party is prevented from or delayed in the performance of its obligations under the contract by an event arising after the formation of the contract which was unforeseeable, irresistible, insurmountable and independent of the will of the Party concerned, that Party may notify the other of the existence of an event of force majeure and the contractual obligations of the Parties shall be suspended.

17.2 If the event of force majeure continues for a period less than thirty (30) days then on the ending of the force majeure event the contractual obligations of the Parties shall be reinstated with such reasonable modifications to take account of the force majeure event as may be agreed between the parties, or in default of agreement, as may be determined by arbitration.

17.3 If the event of force majeure shall continue for a period of more than thirty (30) days, the Buyer shall have at its sole discretion the right to cancel the contract or extend the delivery date.

18. Intellectual Property Infringement 

18.1 The Seller shall indemnify the Buyer from and against all costs, claims, proceedings or demands in respect of any infringement of patent, registered design, trade mark, copyright or other intellectual property rights arising out of the sale or use of any Goods/Services supplied under this contract provided always that the seller shall not be required to indemnify the Buyer against such infringements where the Goods/Services are supplied to the particular design or specification of the Buyer.

19. Assignment and Sub-Letting

19.1 The contract shall not be assigned by the Seller nor sub-let as a whole.  The Seller shall not sub-let any part of the contract without the Buyer’s written consent, which shall not be unreasonably withheld.  The consent of the Buyer shall not however be required for the sub-contracting of materials or minor items or for any item for which the sub-contractor is named in the contract.

19.2 The Seller shall be responsible for all work done and Goods/Services supplied by sub-contractors as if the Goods/Services had been done by itself.

20. Insolvency and Bankruptcy 

20.1 If the Seller becomes insolvent or bankrupt or (being a company) makes an arrangement with its creditors or has an administrative receiver or administrator appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction) the Buyer may, without prejudice to any of its rights, terminate the contract forthwith by notice to the Seller or to any person in whom the contract may have become vested.

20.2 In the event that the Buyer wishes to terminate in accordance with Clause 20.1 and the Buyer has paid stage payments under the contract then the Buyer shall have the option to either reclaim its stage payments or take ownership of all the Seller’s work-in-progress under the contract and rights therein.

20.3 In the event of termination in accordance with Clause 20.1 the Buyer shall have the right to enter the Seller’s premises in order to keep or take possession of any goods or of any items belonging to the Buyer.  This Clause shall remain in force for six (6) months after the date of termination of the contract

21. Termination For the Buyer’s Convenience

21.1 The Buyer shall be entitled to terminate the contract at any time, in whole or in part, upon giving the Seller written notice.

21.2 If the Buyer terminates the contract under Clause 21.1 the Seller shall be entitled to be reimbursed at a fair and reasonable price for all the Goods/Services satisfactorily completed up to the date of termination and for all goods and materials which shall have been properly procured by the seller for incorporation in the Goods/Services and for claims made by subcontractors arising out of or in connection with the termination of the contract.  For the avoidance of doubt, the Seller shall not be entitled to claim for any loss of profit or earnings as a result of the termination of the contract.

21.3 Title in all Goods/Services for which the Buyer has paid for under Clause 21.2 shall pass to the Buyer on payment.

22. Confidentiality

22.1 The Seller shall keep confidential all matters concerning or arising from the contract that are not in the public domain.  The Seller shall not use any of the bByer’s property or information which they have access to as a result of the contract for any purpose other than the fulfilment of the contract.

23. Data Protection Legislation

23.1 Apollo confirms that it will comply with the provisions of the Data Protection Act and General Data Protection Regulations (GDPR) currently in force and as amended when processing personal data.  Any personal data processed by Apollo will be done under the legal basis of legitimate interest and only to the extent necessary as part of Apollo’s day to date operations and/or Client account management.

24. Applicable Law

24.1 The contract shall in all respects be governed by and interpreted in accordance with the law in Scotland.  All disputes arising out of the contract shall be subject to the jurisdiction of the Courts of Scotland.

25. Intellectual Property Rights

25.1 All rights and title in inventions, methods, know-how and copyright developed under the contract or arising in connection with the services shall vest in the Buyer.

26. Disruption Resolution

26.1 The parties hereby agree that they shall resolve any dispute (a “Dispute”) or claim arising out of or relating to this Order under the provisions of this clause 26 and the procedures set out in this clause shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and are express conditions precedent to either party commencing litigation..

26.2 A party shall send written notice to the other party of any Dispute (a “Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set out in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within 60 Business Days of a Dispute Notice being sent by one party to the other, either party may, by written notice to the other party (“Escalation to Executive Notice”), refer such Dispute to the Managing Director of each party (or to such other person of equivalent position). The Executives of each party shall meet together within 30 Business Days of an Escalation to Executive Notice being sent by one party to the other.  In the event that the Executives cannot resolve any Dispute during the time period ending 60 Business Days after the date the Escalation to Executive Notice is sent by one party to the other, either party may initiate litigation.