ORDER
Unless otherwise agreed, these Terms and Conditions shall be part & parcel of each Order the Purchaser may issue the Vendor. EACH ORDER SHALL NOT BE VALID UNLESS EXECUTED BY the Purchaser’s AUTHORIZED REPRESENTATIVE.
If the parties enter into a separate written agreement governing the Work, the terms contained in the written agreement shall supersede the terms contained herein only to the extent of such conflicts. .
The Order is confirmation of the Vendor’s offer as modified by the Order. Receipt of the Order by Vendor shall constitute Vendor’s acceptance of the Order and the terms and Conditions hereof. .
All Works performed pursuant to the Order shall be performed by suitably qualified and competent personnel and all equipment and tools provided shall at all times be maintained in first class operating condition by Vendor, and in the event that Vendor shall provide personnel the same shall be competent and suitably qualified for the purpose for which they are provided. Purchaser reserves the right to require the replacement of any personnel, equipment or tools provided by Vendor which in Purchaser's opinion do not comply with the foregoing provisions at Vendor's cost. Vendor hereby acknowledges that any breach by Vendor of the Order may result in Purchaser committing breaches of and/or becoming liable for damages to the client and/or under other contracts made by Purchaser in connection or relating to the work and all such damages, loss and expense are hereby agreed to be within the contemplation of the parties as being probable results of any such breach by Vendor.
Vendor assumes all risk of loss to the Works until they are delivered to the place specified as per the agreed delivery terms specified in the Order. Title tothe Works shall pass as per the delivery terms specified in the Order. If the Works are destroyed prior to title passing to Purchaser, Purchaser has the option to either cancel the Order or require Vendor to deliver substitute Works of equal quantity and quality. Such substitute delivery shall be made as soon as commercially practicable. If loss of the Works is partial, the Purchaser shall have the option to require Vendor to deliver the Works that are not destroyed subject to the terms of the Order.
The Purchaser shall have a reasonable time after receipt/commissioning of Works, and before payment, to inspect Works for conformity to the Order. Works shall not be deemed accepted until the Purchaser has inspected Works and has run adequate tests to determine whether the Works conform to the specifications hereof. The SAT, FAT or such other certificates shall be sent with the Shipping documents and are to conform that the Works are in line with the specification detailed in the Order.
Use of a portion of the Works for the purpose of testing shall not constitute an acceptance of the same. If the Works delivered/provided to the Purchaser do not wholly conform to the provisions hereof, the Purchaser shall have the right to reject the same. Further the Vendor shall bear all risks as to the rejected Works. The Vendor shall collect the nonconforming Works from the Purchaser at the Vendors entire costs. The Purchaser may request the Vendor for the supply of the balance Works, in conformity with the Specifications
The Vendor shall carry out commissioning of major equipment & machinery to the satisfaction of the Purchaser, the Classification Society and of other relevant authorities.
At any time, the Purchaser may by written notice, make changes to the scope of the Order in any one or more of the following:
If any such change causes a material increase or decrease in the cost of, or the time required for the performance of any part of the work in the Order, the Purchaser and Vendor will agree upon an equitable adjustment in the Price or delivery schedule or both. Vendor shall proceed with the Change Order pending resolution of any claim for adjustment. The Purchaser may act upon any such claim at any time prior to final payment under the Order. The Vendor shall make every effort to supply & deliver as per the Change Order and meet the Purchaser’s requirements.
All designs, patterns, drawings, other data, (whether in hard or soft form) equipment, component, sample, and Manufacturing Materials furnished or paid for by the Purchaser to Vendor (“Purchaser-furnished Items”) shall remain the sole property of the Purchaser.
All Purchaser-furnished Items (if any) shall be held at Vendor’s risk and shall be insured by Vendor while in its custody or control, in an amount equal to the replacement cost thereof with the proceeds of a loss to be paid to the Purchaser. Upon completion or cancellation of the Order, all Purchaser furnished Items not incorporated in the Works shall be returned to the Purchaser in good condition unless otherwise agreed to by the Purchaser.
Vendor shall prepare at his own expense and submit to Purchaser such drawings as Purchaser may require. Purchaser shall have the right to approve all drawings, but such approval shall not relieve Vendor of any of his responsibilities under the Order. Drawings shall not be departed from without Purchaser's written instructions.
The Vendor shall not copy, sell, transfer, assign or otherwise infringe the Intellectual Property Rights of the Purchaser or of the rightful owner of such designs, patterns, drawings, other data (whether in hard or soft form) in the custody of the Vendor pursuant to this Agreement, without the prior written consent of the Purchaser or the rightful Owner, as the case may be. The Vendor shall bear all consequences arising from such infringement and shall indemnify the Purchaser against all claims, liabilities, legal action etc. whatsoever, arising therefrom.
Notwithstanding the above the Vendor shall at all times indemnify the Purchaser from any and all claims made against the Purchaser including and not limited to costs of action pertaining to all intellectual property rights of such equipment/machinery supplied hereunder.
Unless otherwise specified herein an Order can be terminated for the following reasons:
Vendor warrants that the Works delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications, are suitable for the purposes intended implied, in compliance with all applicable specifications and free from liens or encumbrance on title, for the period as agreed and specified in the Order, which Vendor shall furnish to the Purchaser. Such warranty shall run both to the Purchaser and its customers.
If this Order is for services, Service provider warrants that the 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, for the period provided in Vendor’s standard warranty covering the service. Further, Vendor warrants that said services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the Order.
The Vendor agrees to indemnify, defend, and hold the Purchaser harmless from and against all claims, losses, damages, liability, actions, judgments, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and other expenses of litigation), suffered, incurred, or asserted by or against the Purchaser (a) by reason of Vendor’s breach of a warranty, (b) by reason of Vendor’s breach of any term of the Order or breach of any applicable law, (c) for any and all claims for damage or harm to the environment or (d) by reason of personal injury, including death, or property damage sustained by a third party, resulting from or arising out of an act or omission of Vendor’s, or Vendor’s agents, employees, or contractors in fulfillment of the Order.
Vendor shall maintain insurance cover against such liabilities as are referred to in Clause 19 and shall provide to Purchaser on demand valid certificates of insurance in respect thereof.
Except with prior written consent of the Purchaser, Vendor shall not assign any right or interest in the Order nor delegate any obligation or performance under the Order to any third party. Any unauthorized assignment or delegation shall be null and void.
No subcontracting is permitted under the Order unless otherwise done with the prior written approval of the Purchaser. In the event of any subcontracting of the supply of Works, the Vendor shall be not be relieved of his liability and responsibility undertaken hereunder and shall continue to be bound by these terms & conditions or such other terms & conditions that the Parties have agreed.
Claims for moneys due under the Order may be assigned by Vendor provided that Vendor notifies the Purchaser in writing of such assignment and such a request is duly accepted by the Purchaser. Payment to an assignee shall be subject to set-off or recoupment for any present or future claims which the Purchaser may have against Vendor. Notwithstanding any assignment or claims for moneys due hereunder, the Purchaser reserves the right to make direct settlements and adjustments in price with Vendor under the terms of the Order without notice to any assignee.
In the event of a breach of the terms and conditions of the Order by Vendor, the Purchaser shall have all remedies provided by law subject to Vendor’s right to collect the Price for Works accepted by the Purchaser. IN NO EVENT SHALL the Purchaser BE LIABLE TO VENDOR’S, VENDOR’S AGENTS, VENDOR’S EMPLOYEES OR ANY THIRDPARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE ORDER, WHETHER OR NOT the Purchaser WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL the Purchaser’s LIABILITY EXCEED THIS ORDER PRICE.
Except as otherwise provided elsewhere herein, neither the Purchaser nor Vendor shall be liable for any delay or damages due to, occasioned or caused by circumstances or causes beyond its control (hereinafter “Force Majeure”). Force Majeure shall include, but not be limited to, earthquake, flood, explosion, fire, acts of God or public enemy, war, national emergency, invasion, insurrection, riot, strike, lockout or other industrial disputes (except strikes, lockouts and industrial disputes on VENDOR’s premises) or interference by any government, government agency, or other unforeseen circumstances, beyond the control of the party whose performance is affected. The obligation of the Parties hereunder, including the obligation of the Purchaser to compensate Vendor, shall be suspended during the time such causes of Force Majeure are in effect. The party delayed or prevented from performing for any such cause shall do all things reasonably possible to remove such cause and shall resume performance hereunder as soon as such cause is removed. The Party encountering the Force Majeure event shall immediately notify the other Party of the same. In the event the delay due to Force Majeure exceed a period of Fifteen (15) days, the Purchaser will have the discretion to cancel the Order hereby made and the Parties shallarrive at a reasonable resolution as to the payments for work done. Delay on the part of sub-suppliers/sub vendors shall not constitute a Force Majeure event.
Any dispute arising out of or relating to these terms and conditions, or breach thereof, shall be first submitted to mediation. If the dispute cannot be resolved within thirty (30) days after such matter is submitted to mediation, then the dispute shall be submitted to Arbitration at the Singapore International Arbitration Centre (“SIAC”), in Singapore, before a sole arbitrator, in accordance with rules of the SIAC. Such sole arbitrator shall be appointed by the parties in dispute or, failing agreement within 14 days after any party has given to the other party in dispute a written request to concur in the appointment of an arbitrator, a single arbitrator to be appointed on the request of any Party by the Chairman for the time being of the SIAC. The proceedings will be carried out in English language. Each party shall bear their own cost. The decision of the arbitrators shall be final and may be entered as judgment in any court of competent jurisdiction.
These terms and conditions and the terms and conditions of the Order shall be governed by Singapore law and Courts in Singapore shall have exclusive jurisdiction.
All notices to be given hereunder shall be made in writing signed by the authorized representative on behalf of the Purchaser and the Vendor and sent via facsimile or e-mail addresses on the face of the Order.
During the course of providing the Works, Vendor may be exposed to and/or will have access to Confidential Information. Vendor agrees that any and all Confidential Information in any form maintained or created, whether documented or electronically stored or otherwise, that Vendor or its officers, employees, agents or sub-contractors may be exposed to, shall at all times during the Vendor’s performance hereunder and thereafter remain confidential. Vendor shall not directly or indirectly disclose to any third party any Confidential Information without the prior written consent of Company, nor use any such Confidential Information for its or their benefit. Vendor shall be solely liable for ensuring that Confidential Information shall at all times remain confidential and for all Claims suffered by Company as a result of a breach by Vendor of this obligation. If required, Company may, in its discretion, require Vendor to execute written confidentiality agreements in favor of Company.
Purchaser and Vendor expressly acknowledge and agree that Vendor is an independent contractor with respect to the performance of its obligations under this Order. Vendor has the authority to control and direct the performance of the details of the provision of the Works to be provided hereunder and Purchaser is interested only in the result obtained by Vendor. Purchaser has the general right of inspection, consultation and supervision provided herein in order to secure the satisfactory completion of any of the Works to be provided. Neither, Vendor or any member of Vendor Group shall be deemed an employee or act as agent or employee of Purchaser.
If any portion of this document is held to be invalid or unenforceable for any reason by a court or governmental authority of competent jurisdiction then such portion will be deemed to be struck off and the remainder shall continue in full force and effect.
Vendor agrees to maintain books, records and accounts in accordance with general accepted accounting principles applied on a consistent basis and to retain same for a period of not less than five years after completion of the execution of this Agreement. The Purchaser, or its authorized representative shall have reasonable access, with prior consent of the Vendor, to books and records maintained by Vendor related to any work and the services performed under this Agreement and shall have the right to audit such books and records at any reasonable time at the cost and expense of the Purchaser.
Unless specifically agreed to otherwise by the Purchaser and the Vendor, these terms and conditions supersede all previous negotiations, Agreements, Terms & Conditions, if any submitted by the Vendor in any proposal or acknowledgment.
Incase requested by the Purchaser, the Vendor shall submit at the execution of this Agreement a Performance Bond in the form of a Bank Guarantee in a sum equivalent to Ten (10) percent (or such higher percent as may be required by the Purchaser) of the Price issued by an Bank acceptable to the Purchaser, valid up to the expiration of the period of warranty, guaranteeing the performance of the Works.
Unless otherwise agreed, this Order shall be effective from the date of the Order.
All Vendors’ personnel must board the Purchaser’s assets only after donning proper and fit-for-use personnel protective equipment. While on board Purchaser’s assets, all Vendors’ personnel must comply with the Company’s Safety and Integrated Management Systems, without exception.
Any waste produced or occurring as a consequence of a Vendor’s scope of work shall be the responsibility of and be appropriately disposed of by the Vendor, which term includes and is not limited to any and all Sub-contractors, Service providers and Workshops. Disposal shall be in accordance to the relevant legislation, Purchaser standards and best practices, for hazardous as well as non-hazardous waste. This will include packing materials, waste material, containers, e-waste etc.The contracted Vendor shall, at all times, restore the space on land or on board the Purchaser’s assets used or affected by the Vendor’s activity under this contract. This will include removal of the Vendor’s equipment, surplus materials and waste to the satisfaction of the Master of the Vessel / Purchaser’s Representative.The contracted Vendor shall minimize nuisance or disturbance or interference to the community caused due to the activity of the Vendor under this Contract.