Terms and Conditions

ELECTRO-FLOW CONTROLS LIMITED

GENERAL TERMS AND CONDITIONS OF SALE v4.1

1.0       Definitions and Interpretation

“AFFILIATE” means in relation to any company, any subsidiary or holding company of such company or any other subsidiary of such holding company. For the purpose of this definition, “subsidiary” and “holding company” shall have the meaning assigned to them under Section 1159 Companies Act 2006;

“CLAIMS” means all claims, losses, damages, costs (including legal costs), expenses and liabilities;

“BUYER” means BUYER company / group of companies, its Co-Venturers (if any), its and their respective Affiliates, its other SELLERs of any tier, the directors, officers and employees (including agency personnel), of all of the foregoing.

"CONDITIONS OF CONTRACT" means these general terms and conditions of sale;

"CONSEQUENTIAL LOSS" means

(i)  consequential or indirect loss under English law; and

(ii) loss and/or deferral of production, loss of product, loss of use, loss of revenue, profit or anticipated profit (if any), in each case whether direct or indirect to the extent that these are not included in (i) and whether or not foreseeable at the start of the CONTRACT;

"CONTRACT" means the CONTRACT between SELLER and BUYER for the supply of the GOODS and/or SERVICES, comprising the ORDER and these CONDITIONS OF CONTRACT;

“CONDITIONS OF CONTRACT” means these terms and conditions;

“SELLER” means EFC Group, its Affiliates, its sub-sellers of any tier, and the directors, officers and employees (including agency personnel) of all of the foregoing;

“CONTRACT PRICE” means SELLER’s quoted price 

“CO-VENTURER” means any other entity with whom BUYER or the Client, as the case may be, is or may be from time to time a party to a joint operating agreement or unitisation agreement or similar agreement relating to the operations for which the WORK is being performed;

"GOODS" means the goods specified on the ORDER;

“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date the CONTRACT is made;

“MANUAL” means the user MANUAL(s) or other documentation relating to the GOODS supplied by SELLER to BUYER;

“ORDER” means the ORDER issued by BUYER to SELLER;

“QUOTATION” means SELLER’s priced offer of GOODS and/or SERVICES

“SELLER” means EFC Group, its Affiliates, its sub-sellers of any tier, and the directors, officers and employees (including agency personnel) of all of the foregoing;

“SERVICES” means the SERVICES specified on the ORDER;

“SOFTWARE” means computer SOFTWARE supplied together with or embedded on GOODS sold to BUYER and any updates thereof;

“VARIATION” means a change to the CONTRACT agreed by both parties;

“WORK” means all WORK SELLER is required to carry out in accordance with the provisions of the CONTRACT, including where applicable, the provision of the GOODS and/or the provision of the SERVICES;

"WRITING" includes telex, cable, facsimile transmission and comparable means of communication.

2.0       Quotations and Orders

2.1 Any QUOTATION made by SELLER shall remain valid for the period specified in the QUOTATION or, if none, for thirty calendar days. On the expiry of such period, the QUOTATION may, unless otherwise agreed by SELLER, be withdrawn. BUYER’s ORDER shall constitute an acceptance of EFC’s offer (QUOTATION) to purchase the GOODS or SERVICES specified in the ORDER.

2.2 SELLER shall be entitled to a reasonable amount of time to review any proposed ORDER and advise whether it accepts it, before sending a formal ORDER Acknowledgment. ORDERs and subsequent VARIATIONs thereof shall not be binding on SELLER unless and until accepted by it in WRITING. The effective date of the ORDER or VARIATION shall be the date of such acknowledgement, unless otherwise agreed by both parties.

2.3 Once the ORDER has been acknowledged, SELLER will carry out the WORK in accordance with the CONTRACT.

2.4 Every QUOTATION made by SELLER, and the acceptance of any ORDER by SELLER, shall be subject to the CONDITIONS OF CONTRACT. No representative or agent of SELLER has any authority to add to, amend or vary the CONDITIONS OF CONTRACT or the CONTRACT, except by a VARIATION signed by an authorised representative of both parties. No CONDITIONS OF CONTRACT or stipulations in or attached to BUYER’s form of ORDER or other document, which are inconsistent with the CONDITIONS OF CONTRACT or which purport to add to or modify them in any way, shall have any effect unless expressly and specifically accepted in WRITING by SELLER in the ORDER.

2.5 Any waiver on the part of SELLER of any of the CONDITIONS OF CONTRACT shall not be deemed to be a continuing waiver or to prejudice the rights of SELLER hereunder.

2.6 SELLER’s employees or agents are not authorised to make any representations concerning the WORK unless confirmed by an authorised representative of SELLER in WRITING. In entering into the CONTRACT, BUYER acknowledges that it does not rely on any such representations which are not so confirmed, and that all liability for innocent or negligent misrepresentation is hereby excluded.

2.7 Any advice or recommendation given by SELLER or its employees or agents to BUYER or its employees or agents in relation to the WORK, including as to the storage, application or use of the GOODS which is not confirmed in WRITING by SELLER is followed or acted upon entirely at BUYER’s own risk.

2.8 BUYER shall be responsible to SELLER for ensuring the accuracy of the terms of any ORDER (including any applicable specification) submitted by BUYER, and for giving SELLER any necessary information relating to the WORK within a sufficient time to enable SELLER to perform the CONTRACT in accordance with its terms.

2.9 SELLER reserves the right to make any changes in the specifications specified in the ORDER to conform with any applicable statutory or EC requirements or which, in the opinion of SELLER, do not materially affect the quality or performance of the GOODS.

3.0       Price and Payment

3.1 The price of the WORK shall be the CONTRACT PRICE. Rates for SERVICES may be increased by SELLER annually by 30 days’ notice in WRITING to BUYER.

3.2 The CONTRACT PRICE is exclusive of any applicable taxes, which BUYER shall be additionally liable to pay to SELLER.

3.3 The SELLER shall be entitled to invoice the CONTRACT PRICE in accordance with the milestones specified in the QUOTATION or, if none, on placement of the ORDER. All invoices are payable within 30 days of the date of issue unless otherwise specified.

3.4 If any invoice is overdue, SELLER may in addition to SELLER’s other rights elsewhere in the CONTRACT and at law, 

(i)  suspend the WORK until such time as the CONTRACT PRICE has been paid in full by BUYER; 

(ii)  charge BUYER for any Suspension, de-mobilisation and re-mobilisation costs relating to the resulting suspension;

(iii) charge interest at 3% above the base rate of Lloyds Bank on the amount overdue until payment in full is made, whether before or after judgement.

3.5  Notwithstanding delivery and the passing of risk, the property in the GOODS shall not pass to BUYER until SELLER has received in cash or cleared funds, full payment of the CONTRACT PRICE of the GOODS and all other GOODS agreed to be sold by SELLER to BUYER for which payment is then due.

3.6  Until such time as the property in the GOODS passes to BUYER:

(a) BUYER shall hold the GOODS as SELLER’s fiduciary agent and bailee and shall keep the GOODS separate from those of BUYER and third parties and properly stored, protected and insured and identified as SELLER’s property. Until that time BUYER shall be entitled to resell or use the GOODS in the ordinary course of its business.

(b) (provided the GOODS are still in existence and have not been resold) SELLER shall be entitled at any time to require BUYER to deliver up the GOODS to SELLER and if BUYER fails to do so forthwith to enter upon any premises of BUYER or any third party where the GOODS are stored and repossess the GOODS.

(c) BUYER shall not be entitled to pledge or in any way charge by way of security for any indebtedness any such GOODS.

4.0       Storage, Delivery, Risk and Insurance

4.1 Unless otherwise agreed by SELLER in WRITING, delivery will be EXW (unpacked) SELLER’s premises in Aberdeen, in accordance with INCOTERMS. SELLER may, at the request and risk of BUYER, arrange packing and/or shipping on behalf of BUYER and, if it does so, this will be charged at cost plus 15%.

4.2 BUYER shall be responsible for delivery to SELLER at or within one week of placement of Purchase ORDER, any interface information relevant to the scope of supply. Delay in the provision of this information may impact the delivery date.

[If the equipment specified in this CONTRACT is delivered late, the following penalty will come into force, i.e. If more than 30 days late, a penalty of 0.1% per day of the equipment price to a maximum penalty 3% of total ORDER value.

The CONTRACT Delivery date shall be derived from the date of acknowledgement of the ORDER by the SELLER, or the date when last essential information (essential to complete the scope of supply) is received, whichever is the latest.

Prior to enforcing late delivery penalty, BUYER must establish late delivery is the fault of SELLER.]

4.3 Where the GOODS or completion of the SERVICES under an ORDER are to be delivered in instalments or stages, each delivery shall constitute a separate ORDER and failure by SELLER to deliver any one or more of the instalments or stages in accordance with the CONTRACT and/or ORDER or any claim by BUYER in respect of any one or more instalments or stages shall not entitle BUYER to treat the CONTRACT or the ORDER as a whole as repudiated.

4.4 The risk of loss or damage of any kind in the GOODS shall pass to BUYER upon delivery in accordance with Clause 4.1. BUYER should insure accordingly.

4.5 Written notice of any defect in the GOODS or any incorrect quantities, which are or should reasonably have been apparent on inspection, or in the SERVICES, must be given to SELLER within 10 days from the date of delivery of the GOODS or completion of the SERVICES. If notice is correctly given, SELLER will, subject to Clause 8.8, either at its option, (i) repair the defective GOODS free of charge (provided they are made available for collection within the UK) and delivered carriage paid within the United Kingdom or FOB United Kingdom port in accordance with INCOTERMS; or (ii) replace the defective GOODS free of charge (provided defective GOODS are made available for collection within the UK). If BUYER does not notify SELLER accordingly, BUYER shall be deemed to have accepted the GOODS and/or SERVICES in an appropriate condition, and in the full quantity specified in the CONTRACT.

4.6 SELLER shall store the GOODS free of charge for a period of 30 Calendar Days following SELLER’s statement of the GOODS’ readiness for delivery, subject to clause 4.1. Storage thereafter will be charged on a monthly basis.

5.0       Force Majeure

Neither party shall be liable to the other or be deemed to be in breach of the CONTRACT if prevented from carrying out its obligations under the CONTRACT (other than any obligation to make payment) by reason of any circumstance outside its reasonable control and which it could not by the exercise of reasonable diligence avoided. A party affected by any such occurrence shall promptly notify the other party of its nature and anticipated duration. The time for performance shall be extended by the duration of the occurrence.

6.0       Inspection and Testing

GOODS manufactured by SELLER are inspected and tested in accordance with SELLER’s standard tests before despatch from SELLER’s WORKs and BUYER may witness such tests subject to giving SELLER reasonable notice of its intention to attend the tests. It is not a term of the CONTRACT that the GOODS will meet the requirements of any other test (unless otherwise agreed in WRITING by the parties). If SELLER agrees to carry out additional tests it shall be entitled to charge BUYER for any additional costs incurred and to claim an appropriate extension to the delivery date.

7.0       Warranty and Liability

7.1 Subject to Clauses 7.3 and 8.8, SELLER warrants:

7.1.1 that (save as set out in Clause 7.1.2) the GOODS will be free from defects in materials and Workmanship and that they will comply with the specification in the CONTRACT, for a period of twelve (12) months from the date of delivery;

7.1.2 the SOFTWARE will perform substantially in accordance with the functions described in the MANUAL when operated properly and in the manner specified in the MANUAL for a period of twelve (12) months from the date of delivery. SELLER does not warrant that any use will be uninterrupted or error free;

7.1.3 that the SERVICES will be provided with reasonable skill and care.

7.2 Save as set out herein, all CONDITIONS OF CONTRACT, warranties, or other terms, whether implied by statute or otherwise, are expressly excluded to the fullest extent permitted by law. SELLER does not warrant that the GOODS (including any SOFTWARE) are fit for any particular purpose or that they will accomplish any particular results, other than those outlined in the specification in the CONTRACT;

7.3 SELLER’s only liability where the WORK does not comply with the warranty outlined in Clause 7.1 above is as follows:

7.3.1 on any breach of Clause 7.1.1 or 7.1.2, at its option and subject to clause 7.4.2, either to (i) repair the defective GOODS within a reasonable time free of charge; or (ii) replace the defective GOODS within a reasonable time free of charge; and deliver carriage paid within the United Kingdom or FOB United Kingdom port in accordance with INCOTERMS.

7.3.2 on any breach of Clause 7.1.3, to reperform the defective SERVICES.

7.4 SELLER’s obligation under Clause 7.1 is subject to the following CONDITIONS OF CONTRACT:

7.4.1 BUYER must notify SELLER of any faults and or defects in WRITING as promptly as possible upon discovery of any said fault/defect, but not later than seven (7) Working days after the fault/defect is discovered. The written report must as a minimum include full particulars as to the symptoms experienced, nature of the defect, extent of the damage caused thereby, and full details of operation prior to fault/defect.  Damage or loss arising out of failure to notify SELLER within this timescale will not be covered by the terms of the   warranty. 

Notice of a breach of the warranty in Clause 7.1.1 or 7.1.2 must be given to SELLER prior to the expiry of the warranty period specified in Clause 7.1.1 or 7.1.2 as the case may be and within 30 days of the provision of the SERVICES in the case of a breach of Clause 7.1.2;

7.4.2 the defective GOODS must be returned to SELLER carriage paid by BUYER so as to enable SELLER to inspect and carry out tests on the defective GOODS (provided that SELLER will use reasonable endeavours to repair any defects remotely, wherever practicable);

7.4.3 where the BUYER requests GOODS to be repaired at any place other than at SELLER’s premises BUYER shall bear SELLER’s reasonable costs incurred, including charges for SELLER’s personnel at SELLER’s then standard rates on the basis set out in SELLER’s published schedule of rates;

7.4.4 SELLER shall not be liable for the costs of removal of the defective GOODS or the cost of refitting any replacement or repaired GOODS from their remote installed location;

7.4.5 SELLER shall be under no liability under this Clause 7 if the CONTRACT PRICE for the GOODS and/or SERVICES has not been paid by the due date for payment;

7.4.6 notwithstanding Clause 7.1.1, where GOODS or parts thereof are not of SELLER’s manufacture, SELLER will only be liable to BUYER for defects to the extent of SELLER’s warranty entitlement against the particular manufacturer or supplier.

7.4.7 BUYER shall provide all information as may be reasonably necessary to assist SELLER in resolving the defective GOODS or SERVICES including without limitation, sufficient information to enable SELLER to re-create the defect. Any Investigation WORK or repair costs required to establish a response to the BUYER’s warranty claim will be reimbursed to SELLER if said Investigative WORK results in findings of normal wear and tear or misuse of equipment or improper maintenance.

7.5 SELLER shall not be liable for any defect in the WORK resulting from:

7.5.1 the GOODS (including the SOFTWARE) having been modified, repaired or interfered with in any way by any person not authorised by SELLER;

7.5.2 any drawing, design or specification supplied by BUYER;

7.5.3 the SOFTWARE having been used in combination with any SOFTWARE or hardware not supplied or approved by SELLER;

7.5.4 the GOODS (including the SOFTWARE) having been maintained and/or operated otherwise than in accordance with the MANUAL;

7.5.5 power surges, power failures or “black ship CONDITIONS OF CONTRACT”, mechanical shocks, lightning strikes or similar CONDITIONS OF CONTRACT.

7.6 SELLER may offer upgrades of the SOFTWARE to BUYER from time to time, for which there may be a charge if such upgrades provide significant additional functionality. BUYER is not obliged to purchase or install such upgrades but SELLER’s warranty will apply only to the most recent upgrade of the SOFTWARE and the upgrade immediately preceding it.

7.7 If SELLER performs warranty WORK during the warranty period, SELLER shall further guarantee the parts so repaired for a period of not more than three (3) months from the date of completion of the said warranty WORK, or upon expiry of the main warranty, whichever occurs later. The extension of any warranty period does not apply to GOODS that are not part of the warranty WORK.

7.8 This warranty does not apply to normal operational wear and tear.

SELLER is not liable for any damages or loss caused by poor quality installation methods by others, if installation is not carried out by SELLER, or for faulty mounting of equipment/GOODS/parts by others, if not carried out by SELLER, or for poor quality and or lack of proper maintenance, or for any improper choice of location for the installation of the equipment/GOODS/parts by others, or for defects/faults caused by or arising out of erroneous or incomplete information from the BUYER.

SELLER shall not in any way be responsible for repairs or loss under the warranty for improper handling, incorrect use, misuse, or general neglectful use of the equipment, which are beyond any control by SELLER.

SELLER shall under no circumstances be held liable and/or obligated to compensate the BUYER for repairs, carried out by the BUYER himself, and or his agents or by others, without the express written permission of SELLER.

The BUYER must not attempt to repair, without written consent of SELLER, any components or equipment. Failure to comply will result in the BUYER surrendering any warranty claim to SELLER.

8.0       Indemnities

8.1 SELLER shall indemnify, defend and hold harmless BUYER from and against all Claims in respect of:

(a) loss of or damage to property of SELLER whether owned, hired, leased or otherwise provided by SELLER; and

(b) personal injury including death or disease to any member of SELLER; arising out of or in connection with the CONTRACT.

8.2 BUYER shall indemnify, defend and hold harmless SELLER from and against all Claims in respect of:

(a) loss of or damage to property of BUYER whether owned, hired, leased or otherwise provided by BUYER; and

(b) personal injury including death or disease to any member of BUYER; arising out of or in connection with the CONTRACT.

8.3 Except as provided by Clauses 8.1 and 8.4, BUYER shall indemnify, defend and hold harmless SELLER from and against any Claim arising out of or in connection with the CONTRACT for (i) pollution and/or contamination including without limitation such pollution or contamination emanating from the reservoir and/or from any equipment or property of BUYER or SELLER; and (ii) loss of or damage to any well or hole, and blow-out, fire, explosion, cratering or any other uncontrolled well condition (including the costs to control a wild well and the removal of debris) and damage to any reservoir geological formation or underground strata or the loss of oil or gas therefrom.

8.4 Except as provided by Clause 8.2, SELLER shall indemnify, defend and hold harmless BUYER from and against any Claim of whatsoever nature arising from pollution occurring on the premises of SELLER arising out of or in connection with the CONTRACT.

8.5 All exclusions and indemnities given under this Clause 8 shall apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party and shall apply irrespective of any claim in tort, under CONTRACT or otherwise at law.

8.6  If either party becomes aware of any incident likely to give rise to a claim under the above indemnities, it shall notify the other and both parties shall co-operate fully in investigating the incident.

8.7  Notwithstanding any provision to the contrary elsewhere in the CONTRACT, BUYER shall indemnify, defend and hold harmless SELLER from BUYER’s own CONSEQUENTIAL LOSS and SELLER shall indemnify, defend and hold harmless BUYER from SELLER’s own CONSEQUENTIAL LOSS, arising out of or in connection with the CONTRACT.

8.8  Save as set out in Clauses 8.1 and 8.4, SELLER’s total liability to BUYER for any Claim of whatsoever nature arising out of or in connection with the CONTRACT shall be limited to 100% of the CONTRACT PRICE.

9.0       Indemnity in Respect of Intellectual Property Rights

9.1 BUYER acknowledges that any and all Intellectual Property Rights which subsist in or arise in connection with the SOFTWARE or the MANUAL anywhere in the world belong to SELLER (or its licensors) and that BUYER shall have no right in or to the SOFTWARE or the MANUAL save the right to use it as permitted by Clause 10.

9.2 SELLER shall, subject to Clauses 7.4.6, 8.8, 9.3 and 9.4, indemnify BUYER against Claims that the GOODS or their use or resale infringe the intellectual property rights of any other person, provided that:

9.2.1 SELLER is given full control of any proceedings or negotiations in connection with any such claim;

9.2.2 BUYER shall give SELLER all reasonable assistance for the purposes of any such proceedings or negotiations;

9.2.3 except pursuant to a final award, BUYER shall not pay or accept any such claim, or compromise any such proceedings without the consent of SELLER (which shall not be unreasonably withheld);

9.2.4 without prejudice to any duty of BUYER at common law, SELLER shall be entitled to require BUYER to take such steps as SELLER may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which SELLER is liable to indemnify BUYER under this clause, including by permitting SELLER to modify the GOODS so that they are no longer infringing (without any material reduction in functionality).

9.3 SELLER shall have no obligation under Clause 9.2 to the extent that any alleged infringement arises from:

9.3.1 use of any non-current release of the SOFTWARE;

9.3.2 modifications made to the SOFTWARE without SELLER’s consent;

9.3.3 use of the SOFTWARE in combination with any other SOFTWARE not supplied or approved by SELLER;

9.3.4 use of the SOFTWARE other than in accordance with the MANUAL.

9.4 To the extent that GOODS are manufactured or supplied using any design, specification or materials provided by BUYER, BUYER shall indemnify SELLER against Claims that the GOODS infringe or that their use or resale infringes the intellectual property rights of any other person.

10.0     Software Licence

10.1 SELLER grants to BUYER a non-exclusive, non-transferable licence (the “Licence”) to use the SOFTWARE and the MANUAL solely for the purposes of the monitoring, control and use of the GOODS in connection with which it is supplied. This Licence shall continue for the full period of the copyright in the SOFTWARE unless terminated earlier under this Clause 10.

10.2 The SOFTWARE is licensed for use only on the GOODS on which it has been supplied (including replacements thereof supplied by SELLER) and may not be used for any other purpose.

10.3 BUYER may make such back-up copies of the SOFTWARE and MANUAL as are necessary for its lawful use. BUYER will keep records of the number and location of all such copies and will take all reasonable precautions to protect the SOFTWARE and the MANUAL from unauthorized copying or use.

10.4 BUYER shall not modify or remove any copyright or proprietary notices on the SOFTWARE or the MANUAL and shall reproduce such notices on any copies of the SOFTWARE or MANUAL it may make in the form in which they appear on the original.

10.5 BUYER shall not decompile, reverse engineer, disassemble or otherwise reduce any part of the SOFTWARE to readable form nor permit any third party to do so. On request, SELLER will provide interface information necessary to achieve interoperability of the SOFTWARE with independently created computer programs on payment of its reasonable costs.

10.6 Save as otherwise provided, BUYER shall not, and shall not permit any third party to, copy, make error corrections to or otherwise modify or adapt the SOFTWARE nor create derivative WORKs based upon the SOFTWARE.

10.7 At all reasonable times on reasonable advance notice, BUYER shall permit SELLER’s representative to access and inspect any premises, and the computer equipment located there, at which the SOFTWARE or MANUAL is being used or kept and any records kept pursuant to this Licence to ensure that BUYER is complying with its obligations hereunder.

10.8 SELLER may terminate this Licence at any time immediately by notice to BUYER if BUYER commits a material breach of this Licence. This Licence shall terminate without notice if BUYER sells or otherwise transfers ownership or possession of the GOODS on which the SOFTWARE is loaded or embedded, save as set out in Clause 14.5.

10.9 Upon termination of this Licence for any reason BUYER shall destroy or return (at SELLER’s option) all copies of the SOFTWARE and the MANUAL then in its possession, custody or control and, in the case of destruction, certify to SELLER that it has done so.

10.10 BUYER shall indemnify, defend and hold harmless SELLER from and against all claims, liabilities, proceedings, costs, damages, losses, or expenses (including legal expenses) incurred by SELLER caused by, or in any way connected with, the breach by BUYER of the provisions of this Clause 10.

11.0     Variations

The CONTRACT shall not be added to, amended or varied except by way of a VARIATION. Either party has the right to propose a VARIATION and the parties shall consider the impact of such VARIATION on the CONTRACT, including the CONTRACT PRICE and estimated delivery date, and once agreed, the parties shall authorise and sign a VARIATION. SELLER is under no obligation to proceed with changes to the WORK until such time as the changes have been authorised by way of a signed VARIATION or receipt of formal revision to BUYER’s ORDER.

Unless otherwise specified, ORDER VARIATIONs are to be paid upon receipt of invoice, following receipt of signed VARIATION or formal revision of BUYER’s ORDER.

12.0     Law and Jurisdiction

The CONTRACT shall in all respects be construed and governed by English Law. Any dispute or difference between the parties regarding the validity or interpretation of the CONTRACT shall be subject to the exclusive jurisdiction of the English Courts.

13.0     Termination

13.1 Either party may terminate the CONTRACT in the event of the other party’s material breach of the CONTRACT which, following notice of such default or failure from the first party, the other party fails within a reasonable period of time thereafter to rectify. Additionally either party may terminate the CONTRACT, if the other party becomes bankrupt or insolvent, or if its business is placed in the hands of an administrator, a receiver, assignee, or trustee, whether by voluntary act of the other party or otherwise, or undergoes any proceeding analogous to the foregoing.

13.2 In the event of termination of the CONTRACT, SELLER shall cease the performance of the WORK as soon as practicable. Following termination, charges as follows shall be payable by BUYER to SELLER immediately upon receipt of SELLER’s invoice;

(i) 40% of CONTRACT Value, at any time following receipt of an ORDER;

(ii) 100% of CONTRACT Value, at any time after materials are ordered by the SELLER in the execution of the CONTRACT Scope.

SELLER shall attempt, using reasonable diligence, to avoid any costs of WORK in progress and shall negate any resulting savings from SELLER’s termination invoice before it is issued to BUYER.

14.0     General

14.1 Any notice required or permitted to be given by either party to the other under these CONDITIONS OF CONTRACT shall be in WRITING addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

14.2 No waiver by SELLER of any breach of the CONTRACT by BUYER shall be considered as a waiver of any subsequent breach of the same or any other provision.

14.3 If any provision of these CONDITIONS OF CONTRACT is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these CONDITIONS OF CONTRACT and the remainder of the provision in question shall not be affected.

14.4 Except for the indemnities in Clause 8, which are intended to be enforceable by members of BUYER and SELLER as applicable, a person who is not a party to the CONTRACT has no right under the CONTRACT (Rights of Third Parties) Act 1999 (as amended, re-enacted or extended from time to time) to enforce any term of the CONTRACT but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

14.5 Each party has the right to assign the CONTRACT or any part of it, including any ORDER, or any benefit or interest in or under it to any Co-Venturer or Affiliate without the agreement of the other party. Additionally, either party may assign the CONTRACT or any part of it, including any ORDER, or any benefit or interest in or under it to any third party, but only with the prior agreement of the other party which shall not be unreasonably withheld or delayed.

15.0     Export Control

The Parties acknowledge that the GOODS may be subject to laws or regulations restricting their export, including those laws and regulations administered by the U.K. Export Control Organisation and the U.S. Department of Commerce (Bureau of Industry and Security) and the U.S. Department of the Treasury (Office of Foreign Assets Control). The Parties will comply with all applicable U.K and U.S. government requirements, including without limitation those in the U.S. Export Administration Regulations.

16.0     Personnel

16.1 BUYER and SELLER (parties) recognise that the loss of experienced personnel may have a serious effect on a party's business.

16.2. The parties therefore mutually agree that neither party shall without the other's prior written consent either during or within six months after the termination or expiry of the most recent CONTRACT under these terms, engage, employ or otherwise solicit for employment any person who during the relevant period was an employee or sub SELLER of the other and with whom such party had material contact in connection with any CONTRACT under these terms.

16.3. In the event of breach of this term, the party in breach will pay the other party by way of liquidated damages the greater of (1) three times the person's annual salary inclusive of all benefits at time of their resignation or departure, or (2) three times the new annual salary or fee inclusive of all benefits.

16.4 This provision shall not apply in respect of any individual who ceased to WORK for the innocent party at least six months prior to the engagement, nor to any individual who can be proved to have responded to a bona fide published recruitment advertisement where the individual has not been recruited to WORK for or with individuals or a department with whom such individual had material contact in connection with any CONTRACT under these terms.

17.0     Certification and Documentation

17.1 The equipment and systems itemised within the CONTRACT may be certified by a certifying authority, providing both design review and manufacturing surveillance, in accordance with the CONDITIONS OF CONTRACT of the required regulatory bodies/classification societies.

The certifying authority’s cost for design review and manufacturing surveillance is not included in the CONTRACT PRICE, and will be additionally passed on to BUYER by SELLER at cost +15%.

SELLER will submit design package directly to the certifying authority. Both parties recognise that the involvement of a certifying authority can lead to delays in both progress at the design stage and the production stage, and this is often out with the control of either party. In the event that such delays are incurred due to certifying authority involvement in the project, SELLER shall not be held liable for any delays to its Quoted Lead Time. SELLER shall inform BUYER as soon as possible, once a delay has been recognised, and shall endeavour to minimise any disruption to its activities.

17.2 SELLER shall deliver to BUYER within 4 weeks after equipment delivery and any certifying authority’s design review, an electronic copy of SELLER’s User MANUAL(s) covering:-

(i) Operation;

(ii) Maintenance;

(iii) General Arrangement drawings, schematics, diagrams, etc. as required to install, operate and maintain elements of the equipment.

SELLER will provide sufficient data to BUYER to enable BUYER to operate and maintain the equipment.  If BUYER requires additional input, this WORK will be chargeable against SELLER’s schedule of rates.

17.3 A Declaration of Conformity will be provided confirming that the equipment is constructed and manufactured in accordance with recognised methods, codes and standards.

18.0     Provision of EFC Personnel

Unless otherwise specified, provision of EFC personnel at the request of BUYER, shall be in accordance with EFC’s standard schedule of charge-out rates, and the terms and conditions therein. 

PURCHASE ORDER T&Cs

PO-TC-Rev-01-11-9-2014