Standard Terms and Conditions for the Sale of Goods and Services

Transcription

1 Standard Terms and Conditions for the Sale of Goods and Services 1. These are Peak Well Systems Pty Ltd ( Peak Well Systems ) Standard Terms and Conditions for the performance of services rental of Equipment and sale of all goods ( Services, Equipment and/or Goods ). These Standard Terms and Conditions, together with any Special Terms and Conditions and Pricing Notes detailed or referenced in the Peak Well Systems quotation ( Quotation ) shall apply to all Services, rental Equipment or Goods sold by Peak Well Systems to the customer, (the Company ). 2. These Standard Terms and Conditions, together with the Quotation, shall apply from commencement of the Services, manufacture or delivery of the Goods or Equipment, whichever is earlier and shall continue until fulfilment of all obligations by the parties hereunder. 3. The Company shall, in consideration of performing the Services, provision of Equipment or sale of Goods by Peak Well Systems in accordance with the Quotation, reimburse Peak Well Systems in accordance with the Quotation within 30 days of the date of receipt of Peak Well Systems invoice. 4. All rental materials and Equipment provided by Peak Well Systems remain the exclusive property of Peak Well Systems. Peak Well Systems shall only provide fully certified Equipment that will meet all relevant regulatory standards clear of any known damage or defect. Company shall release, indemnify and hold Peak Well Systems Equipment from and clear of all liens, and release, indemnify and hold Peak Well Systems harmless from any and all claims, assessments, fines and levies incurred, created, caused or committed by the Company Group. 5. Notwithstanding the foregoing, Peak Well Systems reserves the right to require that the Company provide, in advance of the provision of Services, sale of Goods or rental of Equipment, an irrevocable Letter of Credit with an International Bank specifying terms acceptable to Peak Well Systems or for an advance payment deposited in a Peak Well Systems nominated account for the estimated final value of the Services, Equipment and/or Goods. 6. Each party shall be responsible for and shall release, defend, indemnify and hold harmless the other party and their respective Affiliates, including, as may be applicable, the other party's coventurers and/or clients (in the case of Company), contractors, subcontractors, vendors, subvendors 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) (ii) personal injury to or sickness, illness, disease or death of any employee of the indemnifying party and its respective Group; and, loss of or damage to any property procured, owned, hired or leased by the indemnifying party and its respective Group; and Standard Terms and Conditions for the Sale of Goods & Services 1 of 7

2 (iii) indirect or consequential losses, including but not limited to business interruption, loss of facility, loss of production, loss of product, loss of use, loss of revenue, loss of profit or anticipated profit, (whether direct or indirect) and whether or not foreseeable at the date of commencement of the Services or delivery of the goods as a result of or arising out of or relating to or in connection with the performance of Services, Equipment rental, or sale of Goods hereunder, irrespective of cause and irrespective of the sole or contributory negligence in any form 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. The term Affiliates for the purposes of the definition of Group hereinabove shall mean in relation to a party hereto: (i) if the party is a subsidiary of another company the party s ultimate holding company and any subsidiary (other than the party itself) of the party s ultimate holding company; or (ii) if the party is not a subsidiary of another company any subsidiary of the party. 7. The Company shall release, defend, indemnify and hold harmless Peak Well Systems and its 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) (ii) (iii) 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 from there; blow-out, cratering, fire, explosion and/or killing or control of any well which shall have become out of control for any reason, including but not limited to debris removal; pollution, contamination (including but not limited to radioactive contamination) or seepage of any nature 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, Equipment Rental or sale of Goods hereunder, irrespective of cause and irrespective of the sole or contributory negligence in any form or breach of duty (contractual, statutory or otherwise) or any liability in tort, contract, statute or otherwise at law of Peak Well Systems or its 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 personal injuries to, (including death of), and loss or damage to property suffered by any third party, not being a part of Peak Well Systems Group or Company Group (hereinafter Third Party ) as a result of or arising out of or relating to, or in connection with the performance of Services, Equipment rental or sale of Goods, to the extent that such injury or death, loss or damage was attributable to the negligence of the indemnifying party or to its Group. Standard Terms and Conditions for the Sale of Goods & Services 2 of 7

3 9. Peak Well Systems warrants that the Services and goods shall comply with the specifications contained in the Quotation or Peak Well Systems standard product specifications. Except as otherwise provided in the specific Quotation, Peak Well Systems' warranty in respect of sale of Goods shall be for a period of 3 months from the Goods being delivered to the Company by Peak Well Systems. The warranty given by Peak Well Systems herein does not apply to: (i) (ii) (iii) (iv) used consumable products, or products that have been repaired or have been modified or subjected to improper handling, storage, installation, operation or maintenance by Company, including use of non-peak Well Systems components. components not manufactured by Peak Well Systems, whether procured by Company or supplied by Peak Well Systems, such parts being subject to any applicable manufacturer's warranty; parts requiring replacement because of normal wear and tear; or the design on those jobs where Peak Well Systems provide Services or goods based upon drawings or designs furnished by others. Peak Well Systems' liability for breach of this warranty is expressly limited 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. Liability is limited to the re-performance of Peak Well Systems original scope of Services or supply and expressly excludes any offshore transportation, uncovering, recovery and re-installation costs. This limited express warranty shall be in lieu of any and all other warranties, express or implied; including without limitation, warranties for fitness for purpose. Except as formally agreed in writing by Peak Well Systems, this warranty is not transferable to any person, firm or company to whom the Company may subsequently sell the products. Except as provided above, Peak Well Systems' warranty in respect of the provision of Services is limited to a period of thirty days calculated from the date of completion of the Services. In the event that Peak Well Systems is required to repair or replace defective permanently installed products or Goods or re-perform the Services, Company shall provide, at no cost to Peak Well Systems, those materials, personnel, Equipment and services that enables the performance of the Services to be effected. Interpretation of well data, other data, advice or interpretations are a matter of opinion upon which professionals may differ. Accordingly, Peak Well Systems gives no guarantee in relation to any such interpretation or advice, nor does Peak Well Systems warrant any particular result. 10. Peak Well Systems hereby indemnifies the Company from and against any and all liability for infringement of intellectual property rights of any third party arising out of the provision of Goods to the Company except to the extent that such have been modified at Company s request or manufactured to Company s specification. The Company, (or any other end user), is not entitled to assert a claim of any nature whatsoever in respect of the patent rights, copy-write, trademarks and intellectual property rights of those Products, Rental Equipment or Goods provided by Peak Well Systems. The Company shall have no right to use Peak Well Systems Equipment nor any documents, specifications or drawings provided in connection with the Services, Equipment and Goods other than for the purposes set out in the Quotation. Standard Terms and Conditions for the Sale of Goods & Services 3 of 7

4 11. Neither party shall be entitled to assign or sub-contract any part of any order or call off without the prior written approval of the other party (which approval shall not be unreasonably withheld). Peak Well Systems may sub-contract the procurement and fabrication of component parts of their products and rental Equipment via their approved suppliers. 12. Except as otherwise provided, 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, the provision of Rental Equipment or sale of Goods. 13. The Company shall, in respect of any taxes incurred, due or owing by the Company or Peak Well Systems in the country of delivery of the Goods, indemnify and hold harmless Peak Well Systems against any claims, penalties, expenses, liabilities, costs (including legal costs) arising from or in connection with the sale and purchase of the Goods. 14. Materials and Equipment belonging to Peak Well Systems and used in the performance of the Services shall be adequately packed in baskets or containers, or suitably palletised and protected to withstand damage from transit and handling. Peak Well Systems shall ensure that applicable certification shall always accompany baskets, containers and slings. 15. Notwithstanding Article 6, where Peak Well Systems, goods or Equipment have suffered damage or loss whilst in the care and custody of Company, or have been shipped by Company and have suffered damage or loss in transit, Company shall be responsible for such damage or loss and shall be charged the cost of replacement or repair unless otherwise specified in the Quotation. 16. The costs of post rental inspection, repair, component replacement and redress of Equipment shall be borne by the Company unless otherwise specified in the Quotation. The detailed costs of post rental repair and redress shall be provided to the Company at the time of invoicing. 17. Notwithstanding Article 6, in the event that Peak Well Systems' Equipment is damaged beyond repair or lost in hole, below the rotary table, or whilst in the custody or control of the Company, then the Company shall reimburse Peak Well Systems the replacement costs of the Equipment. The replacement and Lost in Hole costs for Peak Well Systems' Equipment is available to Company upon request. The full replacement cost shall be charged irrespective of the age or use that the Equipment has experienced. 18. The Company shall provide and shall be responsible for the collection and delivery of Goods and Equipment to and from Peak Well Systems' operational base, unless otherwise specified in the Quotation. At the request of the Company, Peak Well Systems will organise and execute the reimbursable delivery and collection of Peak Well Systems' rental Equipment to and from the Company s designated base. Unless otherwise specified in the Quotation, delivery terms shall be ex-works at Peak Well Systems operational base. Standard Terms and Conditions for the Sale of Goods & Services 4 of 7

5 19. If a party is delayed or unable to fulfil its obligations hereunder as a result of Force Majeure, then such obligations shall be suspended for the period of Force Majeure and provided that the effected party gives notice in writing of such to the other party and makes all reasonable efforts to resume the performance of its obligations once the effects of Force Majeure have ceased. Force Majeure shall include, but not be limited to: acts of God, changes in laws or regulations, actions of government authorities, war, civil disturbances, terrorism, strikes and lock-outs, fire, flood, storm and any cause not reasonably within the control of the party affected. Notwithstanding the above, Force Majeure shall not excuse payment of monies due hereunder. 20. Peak Well Systems' personnel and supervision detailed in the Quotation shall be competent, skilled and qualified to perform the work. The personnel will be medically fit for working on and offshore and shall be trained and certificated in offshore survival and fire fighting. 21. The rental period for Equipment shall commence from the date the Equipment departs Peak Well Systems' base until the date it is returned. Parts of days are charged as a full day's rental. 22. Charges for personnel shall commence on the date the personnel are mobilised from Peak Well Systems' base to Company's designated point of departure, (airport, heliport or docks). Charges shall cease on the date the personnel return to Peak Well Systems' base. A full day rate shall be charged for the mobilisation and demobilisation dates, regardless of the number of hours actually incurred. Rates for personnel assume 12 hour working at the wellsite, further personnel will be supplied if 24 hour working is a requirement. 23. If applicable, the Company shall be responsible for obtaining all necessary customs clearances and any other permits required in respect of the importation and exportation of Peak Well Systems, Equipment and Goods to those countries of operation. 24. The Company shall deploy the Rental Equipment in accordance with instructions provided by Peak Well Systems or, in the absence of such instructions, in accordance with normal industry practice. In the event that Peak personnel are not at the wellsite and the rental Equipment is required to be routinely maintained during the period of hire, Company shall carry out that maintenance or arrange for it to be done in accordance with Peak Well Systems' instructions. 25. In the event that the rental Equipment breaks down or fails in service, Company shall return the rental Equipment to Peak Well Systems who shall use best efforts to provide replacement Equipment. Rental charges shall be suspended from the date of failure of the rental Equipment until such time as it is repaired or replaced. Unless the subsequent investigation shows that Peak Well Systems have been negligent in providing the Equipment, the costs of shipment, repair and continued rental shall be borne by the Company. 26. Except as otherwise specifically referenced in the Quotation, Peak Well Systems makes no warranty or representation, express or implied, of the design or operation of Rental Equipment provided to the Company. Peak Well Systems claims no warranty of fitness for purpose of the Rental Equipment or other representation or warranty whatsoever. Standard Terms and Conditions for the Sale of Goods & Services 5 of 7

6 27. Peak Well Systems may, without any liability to the Company, terminate the provision of Goods for any reason by written notice of termination. 28. Notwithstanding anything to the contrary under these Terms and Conditions or elsewhere (save under Articles 6, 8, 10 and 12), the liability of Peak Well Systems arising out of or in connection with the provision of the Services, rental of Equipment and/or sale of Goods shall in no event exceed an aggregate amount equal to the value of Services, Goods or Equipment provided in accordance with the relevant Quotation. Such limit shall apply irrespective of termination for any reason and whether liability arises under contract or otherwise at law, irrespective of cause, and irrespective of the sole or contributory negligence in any form, or breach of duty (contractual, statutory or otherwise) or any liability in tort, contract, statute or otherwise at law of Peak Well Systems or its Group. 29. These Terms and Conditions, together with the Quotation constitutes the entire agreement between the parties in respect of the performance of Services, provision of rental Equipment or sale of Goods and 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. 30. 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, the provision of rental Equipment or sale of Goods, the party obligated to perform such act shall be excused from performance and these Terms and Conditions interpreted as if such obligation had not been established. Any provision of these Terms and Conditions that is prohibited, illegal or unenforceable in any Country or jurisdiction shall be ineffective for such prohibition, illegality or unenforceability without the remaining provisions also being invalidated. 31. Any provision, which by its nature is intended to survive the completion or earlier termination of these Terms and Conditions, shall survive such completion or early termination and irrespective of the cause therefor. 32. These Terms and Conditions, together with any Quotation and acceptance thereof shall be governed, construed and interpreted and be implemented in accordance with English Law, excluding conflicts of law and choice of law principles. Any unresolved dispute may be submitted to the jurisdiction of the English Courts. Standard Terms and Conditions for the Sale of Goods & Services 6 of 7

7 33. Subject to the provisions of Articles 6, 7 and 8 no provision of these Terms and Conditions is intended by the parties to be construed as creating any right(s) enforceable by a Third Party (as defined in Article 8) and all third party rights implied by law are, to the extent permissible by law, excluded from these Terms and Conditions. Subject to the remaining provisions of this Article 33, Articles 6, 7 and 8 are intended to be enforceable by a Third Party by virtue of The Contracts (Right of Third Parties) Act 1999 (as may be amended form time to time). Notwithstanding the immediately preceding sentence these Terms and Conditions may be rescinded, amended or varied by the parties without notice to or consent of a Third Party even if, as a result, that Third Party s right to enforce a term of these Terms and Conditions may be varied or extinguished. The rights of any Third Party under this Article shall be subject to such Third Party s written agreement to submit to the exclusive jurisdiction of the English Courts in respect of all matters relating to such rights. Standard Terms and Conditions for the Sale of Goods & Services 7 of 7