Purchase Order Terms and Conditions

Section A – Definitions

“AFFILIATE” Shall mean any subsidiary of any CLIENT or any other subsidiary of such CLIENT.  For the purpose of this definition, “subsidiary” and “holding company” shall have the meaning assigned to it under Section 736, Companies Act 1985 as amended by Section 144, Companies Act 1989.

“CLIENT” shall mean the person, persons, firm or company named in the PURCHASE ORDER to purchase GOODS hereinafter defined and shall include the CLIENTS legal personal representatives, successors and assigns.

“CLIENT GROUP” shall mean the CLIENT, its CO-VENTURERS, its and their respective AFFILIATES and its and their respective officers and employees (including agency personnel), but shall not include K.S.D. (Fabrication) LIMITED.

“K.S.D. (Fabrication) LIMITED” shall mean K.S.D. (Fabrication) LIMITED, its respective officers and employees (including agency personnel), but shall not include any member of the CLIENT GROUP.

“CO-VENTURERS” shall mean any co-venturers with the CLIENT from time to time having an interest in the exploration and production licence under which the work is being performed and the successors in interest of such CO-VENTURERS or the assignees of any interest of such CO-VENTURERES.

“DELIVERY” shall occur when the GOODS are received by the CLIENT at the place specified in the PURCHASE ORDER.

“DELIVERY DATE” shall mean the date(s) upon which GOODS shall be delivered as specified in the PURCHASE ORDER.

“GOODS” shall mean the goods to be provided in accordance with the PURCHASE ORDER

PURCHASE ORDER” shall mean the contract formed by the acceptance of the PURCHASE ORDER document and shall incorporate those Purchase Order Terms and Conditions as may be amended by any special conditions referred to in the PURCHASE ORDER.

Section B – K.S.D. (Fabrication) Limited’s Commitment to the Client

 

B1. Terms

K.S.D. (Fabrication) LIMITED will sell the GOODS to the CLIENT on the terms set out in the PURCHASE ORDER.

B2. Delivery

K.S.D. (Fabrication) LIMITED will deliver or make the GOODS available to the CLIENT at the time and place specified in the PURCHASE ORDER, the DELIVERY DATE.

In the event that K.S.D. (Fabrication) LIMITED is unable to deliver the GOODS on the delivery date. K.S.D. (Fabrication) LIMITED shall notify the CLIENT at the earliest possible opportunity.  The CLIENT and K.S.D. (Fabrication) LIMITED shall endeavour to agree a mutually acceptable revised DELIVERY DATE

B3. Inclusive Price

The price, which the CLIENT has agreed to pay for the GOODS, is set out in the PURCHASE ORDER and is exclusive of VAT or any other taxes and duties that may arise.

B4. Access

K.S.D. (Fabrication) LIMITED will allow the CLIENT to expedite, Inspect and test the GOODS during manufacture at K.S.D. (Fabrication) LIMITED’S premises on reasonable prior notice. Any expediting, inspection, testing or any failure to do so shall in no way relieve K.S.D. (Fabrication) LIMITED of its obligations as specified in the PURCHASE ORDER.

K.S.D. (Fabrication) LIMITED will ensure that the GOODS will meet the CLIENT’S requirements with regard to any quality, quantity or specifications, which are set out in the PURCHASE ORDER.

B6. Defects Correction

K.S.D. (Fabrication) LIMITED will repair, replace or rectify any of the GOODS (or any replacement) that are defective. K.S.D. (Fabrication) LIMITED’S obligation shall apply only when the GOODS are used in accordance with K.S.D. (Fabrication) LIMITED’S specification if any.

B7. Packing

K.S.D. (Fabrication) LIMITED will ensure that the GOODS are properly packed, secured and labelled in accordance with accepted industry practice and to meet the CLIENT’S requirement as specified in the PURCHASE ORDER.

B8. Documentation

K.S.D. (Fabrication) LIMITED will provide the CLIENT with all drawings, certificates or other documentation in the specified format and quantities as detailed in the PURCHASE ORDER.

B9. Title and Risk

Title and Risk in the GOODS will pass from K.S.D. (Fabrication) LIMITED to the CLIENT at DELIVERY in accordance with the CLIENT’S requirements under the PURCHASE ORDER.

B10. Patent Indemnity

K.S.D. (Fabrication) LIMITED shall save, defend, and hold harmless the CLIENT GROUP from all claims, losses, damages, costs (including legal costs), expenses, and liabilities of every kind and nature for, or arising out of, any alleged infringement of any patent or proprietary or protected right arising out of or in connection with the performance of the obligations of K.S.D. (Fabrication) LIMITED under the performance of the PURCHASE ORDER.

However, K.S.D. (Fabrication) LIMITED shall use its reasonable endeavours to identify any infringement in the job specification of any patent or proprietary or protected right, and should K.S.D. (Fabrication) LIMITED become aware of such infringement or possible infringement then K.S.D. (Fabrication) LIMITED shall inform the CLIENT immediately.


Section C–The Client’s Commitment to K.S.D. (Fabrication) Limited

 

C1. Terms

The CLIENT will buy the GOODS from K.S.D. (Fabrication) LIMITED on the terms set out in this PURCHASE ORDER.

C2. Acceptance

Acceptance shall be from the time that a duly authorised employee or representative of the CLIENT accepts the GOODS, delivered or collected, and where such GOODS are not defective or damaged in any way and comply with the PURCHASE ORDER.  In the event that a defect in or damage to the GOODS or any breach of the PURCHASE ORDER is identified by the CLIENT, it shall be deemed not to have accepted the GOODS until such time as such defect, damage or breach is remedied by K.S.D. (Fabrication) LIMITED.

Such acceptance shall be within a reasonable time of DELIVERY or collection, but shall be without prejudice to K.S.D. (Fabrication) LIMITED’S liability for any defect in or damage to the GOODS or any breach of the PURCHASE ORDER, which is not identified, by such duly authorised employee or representative of the CLIENT at the time of acceptance.

C3. Use

K.S.D. (Fabrication) LIMITED will not be liable for any loss or damage resulting from the failure of the CLIENT to use the GOODS in accordance with any specific operating conditions set out in the PURCHASE ORDER.

C4. Risk

The CLIENT will be responsible for the risk of loss or damage to the GOODS with effect from the Delivery.

C5. Price Payment

Except where K.S.D. (Fabrication) LIMITED has failed to perform it’s obligations under the PURCHASE ORDER or where K.S.D. (Fabrication) LIMITED’S invoice contains a material error, the CLIENT will pay for the GOODS against K.S.D. (Fabrication) LIMITED’S invoice in the amounts specified in the PURCHASE ORDER within 30 days from receipt of K.S.D. (Fabrication) LIMITED’S invoice, the receipt not being earlier than the DELIVERY.

C6. Patent/Design Rights

All designs, drawings and other technical information relating to the GOODS, or services, including software provided solely by K.S.D. (Fabrication) LIMITED under the PURCHASE ORDER and the intellectual property rights therein made or acquired solely by K.S.D. (Fabrication) LIMITED prior to or during the preparation of the proposal or tender or in the course of work on the PURCHASE ORDER shall be and remain K.S.D. (Fabrication) LIMITED’S property unless otherwise set out in the PURCHASE ORDER.

C7. Termination for Convenience

The CLIENT may at any time give written notice to K.S.D. (Fabrication) LIMITED to terminate the PURCHASE ORDER forthwith and in such event the CLIENT shall pay and K.S.D. (Fabrication) LIMITED shall accept in settlement of all claims under the PURCHASE ORDER, such sums reasonably compensate it for all work done and obligations assumed by it in performance of the PURCHASE ORDER prior to its termination and for all work reasonably done by K.S.D. (Fabrication) LIMITED in giving effect to such termination.  The value of any material, payment for which has been arranged by the CLIENT but left with, and can be put to use by, K.S.D. (Fabrication) LIMITED, may be taken into account when calculating such losses but such sum shall in not event exceed the price set out in the PURCHASE ORDER unless otherwise agreed.

C8. Status of Client

The CLIENT enters into the PURCHASE ORDER for itself and as agent for and on behalf of the other CO-VENTURERS.  Notwithstanding the above: –

  • S.D. (Fabrication) LIMITED agrees to look only to the CLIENT for the due performance of the PURCHASE ORDER and nothing contained in the PURCHASE ORDER will impose any liability upon, or entitle K.S.D. (Fabrication) LIMITED to commence any proceedings against any CO-VENTURER other than the CLIENT; and
  • the CLIENT is entitled to enforce the PURCHASE ORDER on behalf of all CO-VENTURERS as well as for itself. For that purpose the CLIENT may commence proceedings in its own name to enforce all obligations and liabilities of K.S.D. (Fabrication) LIMITED and to make any claim that any CO-VENTURER may have against K.S.D. (Fabrication) LIMITED.

 

Section D – our Commitments to Each Other

 

D1. Indemnity Arrangements

K.S.D. (Fabrication) LIMITED shall be responsible for and shall save, indemnity, defend and hold harmless the CLIENT GROUP from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of: –

  • loss of or damage to property of K.S.D. (Fabrication) LIMITED GROUP whether owned, hired, leased or otherwise provided by the CONTRACT GROUP arising from or relating to the performance of the PURCHASE ORDER; and
  • personal injury including death or disease to any person employed by K.S.D. (Fabrication) LIMITED arising from or relating to the performance of the PURCHASE ORDER: and
  • personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of K.S.D. (Fabrication) LIMITED arising from or relating to the performance of the PURCHASE ORDER. For the purposes of this clause “third party” shall mean any party, which is not a member of the CLIENT GROUP or K.S.D. (Fabrication) LIMITED.

D1.2   

All exclusions and indemnities given under this Clause shall (save for those under Clauses D1.1(c), D1.2(c) and Clause D2 apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) or the indemnified party or any other entity or party and shall apply irrespective of any claim in tort, under contract or otherwise at law.

D2. Consequential Loss

For the purpose of this Clause D2 the expression “ Consequential Loss” shall mean indirect losses and/or loss of production, loss of product, loss of use, and loss of revenue, profit or anticipated profit.

Except to the extent of any agreed liquidated damages or any termination fees provided for in the PURCHASE ORDER the CLIENT shall save indemnify, defend and hold harmless K.S.D. (Fabrication) LIMITED from the CLIENT GROUP’S own consequential loss and K.S.D. (Fabrication) LIMITED shall save, indemnify, defend and hold harmless the CLIENT GROUP from K.S.D. (Fabrication) LIMITED’S own Consequential Loss.

D3. Insurance

The CLIENT and K.S.D. (Fabrication) LIMITED shall maintain levels of insurance sufficient to cover their respective liabilities and obligations under the PURCHASE ORDER and at law.

D4. Confidentiality

The CLIENT and K.S.D. (Fabrication) LIMITED shall keep the PURCHASE ORDER and any information, which either party learn about the other in strict confidence and will not disclose the same to any third party without the prior written consent of the other party.

D5. Variations

With reasonable prior notice the CLIENT and K.S.D. (Fabrication) LIMITED shall discuss variations to the PURCHASE ORDER and agree with each other resulting changes to any of the details shown in the PURCHASE ORDER.

D6. Force Majeure

Neither the CLIENT nor K.S.D. (Fabrication) LIMITED shall be responsible for any failure to fulfil any term or condition of the PURCHASE ORDER if and to the extent that fulfilment has been delayed or temporarily prevented by a force Majeure occurrence as hereunder defined, which has been notified in accordance with this Clause and which is beyond the control and without the fault or negligence of the party affected and which, by the exercise of reasonable diligence, the said party if unable to provide against.

For the purposes of this PURCHASE ORDER only the following occurrence shall be force majeure:

  • riot, war, invasion, act of foreign enemies, hostilities (whether war to be declared or not), acts of terrorism, civil war, rebellion, revolution insurrection of military or usurped power.
  • Ionising radiations or contamination by radio-activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or radio-active, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
  • Pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
  • Earthquake, flood, fire, explosion and/or other natural physical disaster, but excluding weather conditions as such regardless of severity;
  • Strikes at a national or regional level or industrial disputes at a national or regional level, or strikes or industrial disputes by labour not employed by the affected party its subsidiaries or its suppliers and which affect a substantial or essential portion of the GOODS;
  • Maritime or aviation disasters; and
  • Changes to any general or local Statute, Ordinance, Decree or other Law, or any regulation or byelaw of any local or other duly constituted authority or the introduction of any such Statute, Ordinance, Decree, Law, regulation or byelaw.

D7. Transfer of Purchase Order

K.S.D. (Fabrication) LIMITED shall not at any time sub-contract or assign any part of their respective rights or obligations under the PURCHASE ORDER to any other person, without first obtaining the CLIENT’S prior consent which shall not unreasonably be withheld or delayed.

D8. Dispute Resolution

If either party is dis-satisfied with the performance of the other in relation to the GOODS or the PURCHASE ORDER the parties shall meet as soon as possible in good faith or try to resolve the matter in an amicable way.

In the absence of any agreement being reached on a particular dispute either party may take appropriate action in the English Courts to resolve the dispute at any time.

D9. Cancellation

K.S.D. (Fabrication) LIMITED or the CLIENT may terminate the PURCHASE ORDER in the event that:

  • the other party is in breach of a condition of the PURCHASE ORDER; or
  • the other party goes into liquidation other than for the purpose of a bona fide reconstruction, becomes insolvent or makes an arrangement with creditors or has any form of distress or diligence executed or executioned levied against his goods or becomes bankrupt or commits any act of bankruptcy or if a receiver or administrator is appointed in respect of the other party or any of their assets.

In such an event, the only remaining commitment will be for the CLIENT to pay for GOODS already delivered by K.S.D. (Fabrication) LIMITED but not yet paid for.

D10. Proper Law and Language

The PURCHASE ORDER shall be constructed and take effect in accordance with English Law excluding those conflict of law rules and choice of law principles which would deem otherwise, and subject to the provisions of Clause D8, shall be subject to the exclusive jurisdiction of the English Courts.

The ruling language of the PURCHASE ORDER shall be the English Language.

D11. Special Terms

K.S.D. (Fabrication) LIMITED and the CLIENT agree that any special conditions set out in the PURCHASE ORDER will take precedence over the general terms and conditions set out above.