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www.agrsubsealtd.com terms and conditions
Published: March 26th 2009
Terms and conditions for purchase
1 DEFINITIONS
In this document the following words and expressions shall have the following meanings:-
"Buyer" means AGR Subsea Limited, number SC232751 and having its registered office at Johnstone House, 52- 54 Rose Street, Aberdeen AB10 1UD , either trading in its own name or through such of its trading divisions as shall be identified on the face of the contract;
"Contract" means a contract for the purchase of the Goods or Services by Buyer from Seller, such a contract being deemed to incorporate the Purchase Order, these terms and conditions and any other documents (or parts thereof) referred to in the Purchase Order and Seller’s acceptance thereof, always excluding any terms and conditions of Seller referred to in such acceptance;
"Goods" means the equipment, goods and/or materials ordered or bought by Buyer in terms of the Contract;
"Purchase Order" means an order for Goods and/or Services made by Buyer using Buyer's purchase order;
"Price" means the price payable for the Goods and/or Services by Buyer as set out in the Purchase Order;
"Seller" means any person named in the Purchase Order or the Contract from whom Buyer shall order or buy the Goods and/or Services and shall include his or their permitted successors, transferees, assignees, executors and personal representatives; and
"Services" means any and all services to be supplied to Buyer by Seller in terms of the Contract.
2 ORDERING GOODS
2.1 No request for a quotation by Buyer shall constitute an offer to purchase Goods or Services. Buyer reserves the right to withdraw or cancel any Purchase Order or request for a quotation without notice at any time prior to receipt of acceptance and any quotation given by Seller shall be subject to acknowledgement.
2.2 Any Purchase Order shall be accepted by means of Seller's written acknowledgement or by performance. Performance by Seller indicates acceptance of these Terms and Conditions to the exclusion of all others. Each Purchase Order accepted by Seller shall be deemed to be an individual legally binding Contract between Buyer and Seller and shall be deemed to be subject to these terms and conditions.
2.3 Buyer shall not be bound by any terms or any conditions set out in Seller's acknowledgement unless specifically agreed in writing by Buyer and these terms and conditions shall prevail to the exclusion of all others. No previous correspondence, writings, facsimiles, telexes, telegrams, emails or verbal communications between Seller and Buyer regarding the Goods or Services shall form any part of or be incorporated into the Contract unless specifically referred to on the Purchase Order.
2.4 Buyer shall have the right from time to time during the performance of the Contract, by notice in writing, to direct Seller to add to or omit from or otherwise vary the Goods and/or Services, and Seller shall carry out such variation in so far as possible as though the said variations were stated in the Contract. Where Seller receives any direction as set out in this clause which would occasion an amendment to the Price, then such amendment shall be valued by Buyer by reference to any rates for, or schedules of, similar or related goods incorporated in the Purchase Order, failing which by reference to rates generally accepted in Seller's industry for Goods/Services of a similar description or, failing which, at a fair and reasonable rate agreed between the parties.
3 PRICE AND PAYMENT
3.1 Seller shall be entitled to submit an invoice for the Goods/Services as soon as delivery has taken place and/or the Services have been completed, subject to any contrary agreement in the Purchase Order or the acceptance. Such an invoice shall comply with the terms of the applicable Purchase Order and be payable within 30 days of receipt, subject to Buyer's acceptance of the Goods/Services.
3.2 If Buyer has rejected the Goods/Services or any part thereof without having made payment and such rejected Goods/Services are thereafter replaced/re-performed by Seller in conformance with the Contract then payment shall be made by Buyer for such Goods/Services within 30 days of receipt of a properly prepared invoice for the same.
3.3 Any and all expenses, costs and charges incurred by Seller in the performance of its obligations under the Contract shall be paid by Seller unless expressly stated otherwise.
4 DELIVERY & INSPECTION
4.1 Time shall be of the essence in respect of Seller's compliance with its obligations under the Contract in particular (without limitation) in respect of compliance with timescales set out in the Contract or otherwise agreed between Buyer and Seller.
4.2 The Goods shall be delivered to Buyer/the Services shall be provided at the place and in accordance with the timescale set out in the Contract or if none is specified at such place and in accordance with such timescale of delivery or deliveries as Buyer and Seller shall otherwise agree. Delivery shall include the off-loading of Goods, unless otherwise agreed.
4.3 Seller shall notify Buyer immediately in writing if it becomes aware that it will not be able to comply with the agreed timeline for the delivery of the Goods/provision of the Services. Such notification shall include a detailed explanation of such delay and a schedule of dates indicating when delivery/performance will take place. Upon receipt of such a notification, or upon Buyer becoming otherwise aware that Seller is unable to meet the agreed timescales (other than where such delay is a result of a force majeure event or any act or default of Buyer), Buyer shall have the right to require Seller, at its expense, take all steps (including without limitation, procuring the services of a third party) to ensure the delivery/performance in accordance with the agreed timeline. In addition, Buyer shall, without prejudice to any other remedies available to it, be entitled to reject the Goods/Services and rescind the Contract without any further obligations thereunder and purchase other Goods/Services of the same or similar description from elsewhere and recover from Seller the amount by which the cost of purchasing such Goods/Services exceeds the Price.
4.4 The Goods/Services may be subject to inspection by Buyer or Buyer's customer at the works of Seller or its subcontractors and Seller shall facilitate the same. Buyer may also inspect the Goods/Services on delivery/completion. If the results of such inspection cause Buyer to be of the opinion that the Goods do not conform or are unlikely to conform with the requirements of the Contract, Buyer shall inform Seller and Seller shall immediately take such action as is necessary to ensure conformity and in addition Buyer shall have the right to require and witness further inspections. Notwithstanding any such inspection, Seller shall remain fully responsible for the Goods/Services and any such inspection shall not diminish or otherwise affect Seller's obligations under the Contract.
4.5 The Goods/Services shall not be accepted, or be deemed to be accepted, until Buyer has notified Seller in writing to that effect; such notification shall be given only after full and proper inspection has been carried out, such inspection being made within a reasonable time after delivery/performance. Acceptance of the Goods/Services by Buyer shall be without prejudice to Buyer's rights and remedies under the Contract or otherwise. Where a latent defect arises which could not reasonably have been apparent at the time of inspection such Goods/Services shall be deemed not to have been accepted by Buyer until a reasonable time after the latent defect becomes apparent.
5 REJECTION
5.1 If any of the Goods do not comply strictly with any of the terms of the Contract Buyer may reject them within 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. The return of any rejected Goods to Seller shall be at the risk and cost of Seller. If any of the Services performed under this Contract do not comply strictly with any of the terms of the Contract Buyer may reject them within reasonable time after performance. Seller shall forthwith replace any rejected Goods with Goods which conform to the Contract and/or re-perform any rejected Services in a timely fashion in accordance with the Contract.
5.2 If Seller does not replace the rejected Goods or re-perform the Services within a reasonable time period (based on the requirements of Buyer), Buyer shall have the right to purchase elsewhere replacement Goods of the same or similar description or procure the services of a third party to perform/re-perform the Services without prejudice to any other rights which Buyer may have against Seller.
6 RISK AND TITLE
Seller warrants that it has good, unencumbered and marketable title to the Goods and that it will transfer such title to Buyer pursuant to this Clause. Title in the Goods shall pass to Buyer upon despatch of the Goods to Buyer or Buyer's customer and title in respect of the Services shall pass on performance. The risk of loss, damage or destruction of the Goods shall not pass to Buyer until Seller has received Buyer's notification the Goods/Services have been accepted.
7 SELLER'S WARRANTY AND LIABILITY FOR DEFECTS
7.1 Seller warrants, undertakes and represents that (i) the Goods shall be of the best available design and be of the best quality, material and workmanship and the Goods and the Services shall conform in all respects with the specifications, drawings, descriptions or samples contained or referred to in the contract; (ii) the Goods/Services will be fit for Buyer's intended purpose including in particular without limitation in respect of design and functionality; and (iii) it shall comply with any and all laws, common laws, statutes, bye laws, EU directives, regulations, orders or rules of court or deleted or subordinate legislation whether now or hereafter in effect which in any way affects or impinges upon the matters referred to in the Contract.
7.2 Seller shall without delay and without cost to Buyer repair or replace at Buyer’s option any of the Goods or re-perform any of the Services which are or become defective within a period of 18 months from delivery/completion or 12 months from putting into service, whichever shall be the shorter, due to faulty workmanship or materials or faulty design of Seller (including, any errors made by Seller in instructions, labels or handbooks). Any Goods so replaced or repaired or Services re-performed shall be subject to the like obligations for a further defects liability period of 12 months from their re-delivery after repair or replacement or reperformance. If Seller shall fail to so repair or replace such defective goods Buyer shall have the right to have the work of repair or replacement undertaken by others and to recover the costs of so doing from Seller.
7.3 Seller shall further be liable to Buyer for all direct damages sustained by Buyer arising out of the said defects up to the limit of liability stated in the Purchase Order or if no such limit is stated the Contract Price.
8 INDEMNITY
If either party fails to perform its obligations under the contract then that party shall be liable to the other for the damages arising directly and naturally in the ordinary course of events from the breach of contract concerned. 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, whether the same is due to the negligence of that party or not. Nothing in these terms and conditions shall be construed as excluding or limiting liability for personal injury, death or fraud.
9 TERMINATION AND REMEDIES
9.1 Buyer's rights under these terms and conditions are in addition to any conditions implied in favour of Buyer including, without limitation, the Sale of Goods Act 1979. Without prejudice to any other right or remedy which Buyer may have, if Seller fails to comply with the terms of this Contract Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion: (i) to terminate the Contract; (ii) to refuse to accept any further deliveries of the Goods or performance of the Services under the Contract or any other contract between Buyer and Seller but without any liability to Seller; (ii) to carry out at Seller's expense any work necessary to make the Goods/Services comply with the Contract; and (iv) to claim such damages as may have been sustained in consequence of Seller's breaches of the Contract.
9.2 Buyer shall be entitled to terminate the Contract with immediate effect and without compensation to Seller if Seller becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or an order is made or a resolution is passed for the winding up of Seller, or an order is made for the appointment of an administrator, a receiver or manager or administrative receiver of Seller, or Seller takes or suffers any similar or analogous action in consequence of debt in any jurisdiction. Upon termination of the Contract, Seller or Seller's receiver, administrator, liquidator or trustee in sequestration or any similar officer appointed in respect of all or any part of the business or assets of Seller shall deliver to Buyer any Goods for which Buyer has obtained title to which are in the possession of Seller.
9.3 Buyer shall be entitled to terminate the Contract in whole or in part on thirty (30) days written notice to Seller.
10 INTELLECTUAL PROPERTY
10.1 All intellectual property rights in and relating (directly or indirectly) to the Goods and or Services supplied hereunder shall vest in Buyer, other than where such intellectual property rights can be substantiated as belonging to Buyer prior to entering into the Contract or being a directly related development of the same, when Buyer shall be duly licensed to use the same. Seller shall indemnify Buyer and its customers against all direct losses arising from any infringement or alleged infringement of any third party's intellectual property rights in respect of the Goods or Services, other than where such infringement arises as a direct result of Buyer's reliance on any specifications, plans, drawings, process information, patterns or designs supplied by Buyer to Seller in connection with the Contract.
10.2 All intellectual property rights in any specifications, plans, drawings, process information, patterns or designs or other information supplied by Buyer to Seller in connection with the Contract shall remain the property of Buyer, and any information derived therefrom or otherwise communicated to Seller in connection with the Contract shall remain vested in Buyer and shall be deemed to be confidential to Buyer and must be returned to Buyer on fulfilment of the Contract.
10.3 Seller undertakes that it shall not assert any rights, use otherwise as permitted hereunder or otherwise register or apply to register any rights in any intellectual property rights which belong to Buyer or any company which is a member of the same group of companies as Buyer.
11 FORCE MAJEURE
11.1 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 shall, as soon as reasonably practicable, notify the other of the existence of an event of force majeure and the contractual obligations of the parties shall be suspended.
11.2 If the event of force majeure continues for a period less than 90 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 an arbitrator appointed in accordance with clause 13.
11.3 If the event of force majeure shall continue for a period of more than 90 days, then the contract shall be considered as terminated by mutual consent and each party shall be discharged from further performance of and liability under the Contract.
12 ASSIGNATION/SUB-CONTRACTING
12.1 Seller shall not assign, charge, sub-contract or delegate its rights or obligations under the Contract in whole or in part without the prior written consent of Buyer, which shall not be unreasonably withheld. The consent of Buyer shall not be required for the sub-contracting of materials or minor items or for any item for which the subcontractor is named in the Contract. Seller shall be responsible for all work done and goods supplied by subcontractors as if the work had been done or the goods supplied by itself.
12.2 Any notice to be given to a party in respect of these terms and conditions shall be sent by recorded/registered post to the party's registered office, copied to the person named on the Purchase Order/acceptance and shall be deemed to be delivered 48 hours from the date of posting.
13 GOVERNING LAW/ DISPUTE RESOLUTION
The interpretation of these terms and conditions and any Contract formed hereunder shall be governed by and construed in accordance with the law of Scotland. If any dispute or difference shall arise between the parties in connection with or arising out of the Contract which cannot be settled amicably, then either party shall give the other 14 days’ written notice to such effect and such dispute or difference shall be referred to a single arbitrator agreed between the parties within 14 days after the date of the said written notice, or in default of agreement, as may be nominated by the president for the time being of the Chartered Institute of Arbitrators, such arbitration being governed in accordance with the Scottish Arbitration Code. The decision of the arbitrator shall be final and binding on the parties.
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Every effort has been made to ensure the information contained on this site is correct and up to date, including any links to other sites. All offers on the AGR Subsea website are subject to availability. All furniture on this website is available from AGR Subsea but may not necessarily be on show in all three branches or in the finish or cover shown. The first price quoted is our normal price unless otherwise stated.
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We make every effort to check and test material at all stages of production. However, it is always wise for you to run an anti-virus program on all material downloaded from the internet. We cannot accept any responsibility for any loss, disruption or damage to your data or your computer system which may occur whilst using material derived from this website.
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Name & Registered Office: AGR SUBSEA LIMITED JOHNSTONE HOUSE 52-54 ROSE STREET ABERDEEN AB10 1UD Company No. SC232751 VAT: GB 8045 24 355
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