1. Definitions and Interpretation
1.1 Unless the context otherwise indicates or requires, the following words and expressions shall have the meaning ascribed to them below:
(a) “Agreement” means any agreement between Oceans of Energy and Supplier, each amendment and addition thereto, as well as all legal acts involved in the drafting and execution of the said agreement. Purchase Order “P.O.” issued by Oceans of Energy to Supplier shall be considered as Agreement.
(b) “Affiliate” means any company, partnership, trust or other entity directly or indirectly controlling a Party or controlled by or under direct or indirect common control of a Party. ‘Control’ for the purpose of this definition shall mean direct or indirect ownership or at least (i) fifty percent (50%) of the voting rights or (ii) fifty percent (50%) of the registered capital of such entity.
(c) “Goods” means the goods, products, materials, liquids, equipment, design and/or all pertaining documents to be supplied as specified in the Agreement and any part or component thereof or incorporated therein.
(d) “Oceans of Energy” means Oceans of Energy B.V. (company registration number 65993586) Warmonderweg 3, 2171AH Sassenheim, the Netherlands.
(e) “Party” means Oceans of Energy or the Supplier individually, and “Parties” means both Oceans of Energy and the Supplier collectively.
(f) “Price” means the price for the Goods and/or Services agreed in the Agreement.
(g) “Services” means the services and/or all pertaining deliverables to be provided as specified in the Agreement and any part or component thereof or incorporated therein.
(h) “Supplier” means any natural person or legal entity who supplies the Goods and/or Services or with whom Oceans of Energy enters into or is negotiating an Agreement.
2. Scope and Delay
2.1 The Supplier shall sell and deliver the Goods and perform the Services in accordance with the Agreement. Oceans of Energy shall purchase and accept delivery of the Goods and accept performance of the Services in accordance with the Agreement.
2.2 If the Supplier fails to deliver the Goods and/or perform the Services on or before the agreed completion date, it shall pay to Oceans of Energy the amount of one percent (1%) per week of delay or part thereof of the Price of the affected Goods and/or Services as liquidated damages for delay up to a maximum of ten percent (10%) of the Price of the affected Goods and/or Services. In the event the maximum amount of liquidated damages is reached Oceans of Energy has the right to terminate the Agreement immediately. The Supplier is not relieved of its obligation to deliver the Goods and/or perform the Services notwithstanding that the liquidated damages are payable or the maximum amount of liquidated damages is reached.
2.3 The Supplier shall provide bi-weekly reports of progress. In case of any actual or potential delay, the Supplier shall immediately inform Oceans of Energy and submit a proposal for reversing or mitigating such delay.
3. Subcontracting and Assignment
3.1 The Supplier may not assign or transfer any right or obligation under the Agreement without the prior written consent of Oceans of Energy.
3.2 The Supplier shall not subcontract the whole or substantially the whole of the Agreement without the prior written consent of Oceans of Energy.
3.3 Oceans of Energy reserves the right to approve the Supplier’s subcontractors at any time.
3.4 In case of subcontracting, notwithstanding any approval by Oceans of Energy, the Supplier shall not be relieved of any obligation or liability under the Agreement and shall at all times remain fully responsible and liable towards Oceans of Energy as if the Supplier had performed all the obligations itself.
4. Price, Invoicing and Payment
4.1 Save as is expressly set out in the Agreement, the price shall be the only remuneration for the performance of all of the Supplier’s obligations under
the Agreement and shall not be subject to change.
4.2 Supplier’s invoice shall show the following information as may be relevant: (i) description of the relevant Goods and/or Services, (ii) reference the relevant Oceans of Energy P.O. number (iii) applicable amount to be paid, (iv) point of shipment, (v) location of delivery of Goods and/or performance of Services, (vi) evidence that the entitlement to submit the invoice has arisen pursuant to the agreed payment schedule, and (vii) any other information reasonably required by Oceans of Energy to support the payment application.
4.3 Any invoice submitted in accordance with Section 4.2 shall be paid within sixty (60) days after receipt of the relevant invoice, unless otherwise agreed (“Payment Period”), unless Oceans of Energy has within the Payment Period disputed the amount or part thereof invoiced by the Supplier. Any undisputed part of an invoice shall be paid within the Payment Period. The payment obligation as to the disputed amount shall be suspended until settlement of the dispute.
4.4 The Price shall be exclusive of any applicable value added tax, which shall be stated separately on each invoice, but shall be inclusive of any other taxes and/or duties.
4.5 Oceans of Energy shall be entitled to offset amounts due by it to the Supplier, with amounts due by the Supplier (or its Affiliates) to Oceans of Energy (or its Affiliates) under any agreement between Parties.
5 Inspection and Testing
5.1 In order to assure that the Goods and/or the Services will comply with the requirements of the Agreement, Supplier shall (i) diligently and continuously control and test the quality thereof and (ii) ensure that Oceans of Energy or its nominee has the opportunity to inspect the Goods and/or the performance of the Services at any time and place during and after the performance of the Services and/or the production, construction, assembly or composition of the Goods.
5.2 The Supplier shall forward to Oceans of Energy duly certified copies of the results of the inspections and tests within three (3) weeks of each inspection or test unless otherwise agreed.
5.3 Notwithstanding any such inspection or testing, the Supplier remains fully responsible for the Goods and/or Services and any such testing or inspection shall not diminish or otherwise affect the Supplier’s obligations under the Agreement.
6. Delivery and Approval
6.1 Delivery of the Goods and performance of the Services shall be carried out at the agreed place of performance. Delivery of the Goods and performance of the Services shall be deemed to be complete only when all Goods and/or the Services have been actually received by Oceans of Energy at the agreed place of performance.
6.2 If delivery of the Goods and/or performance of the Services is not completed within two (2) weeks of the agreed completion date, Oceans of Energy shall have the right in its sole discretion to (i) refuse any or all Goods and/or Services and/or cancel all or any part of any contract in force with the Supplier, without notification of default being required, in such a case the Supplier shall refund Oceans of Energy any amounts paid under this Agreement, or (ii) have the Goods and/or Services completed by a third party in which case any additional costs incurred by Oceans of Energy shall be recovered from the Supplier.
6.3 The Goods and/or Services shall not be deemed accepted until Oceans of Energy notifies the Supplier in writing that the Goods and/or Services have been received in accordance with the Agreement.
7 Quality & Warranties
7.1 The Supplier warrants that (i) the Goods and Services shall be in accordance with the agreed specifications; (ii) the Goods and Services shall be of good quality, of good material and workmanship, and free of any defects in design, material and workmanship; (iii) the Goods and Services are fit for the intended purpose as made known to the Supplier by Oceans of Energy or which could be reasonably inferred from the nature of the Agreement; and (iv) the Goods shall be properly packed, secured and labelled in accordance with accepted industry practice and as per P.O. requirements. (v) the Services shall be performed with good care and workmanship by competent and trained personnel using best practice and be free of
errors and defects (“Warranties”).
Supplier shall have a Quality Management System and policy and at any moment requested will overlay such policy to Oceans of Energy.
7.2 If Goods and/or Services fail to conform in any respect to the Warranties at any time during a period of two (2) years after delivery in accordance with the Agreement (“Guarantee Period”), the Supplier shall at its own expense immediately and completely repair, replace or otherwise remedy any non-conforming Goods and/or Services. After remedy of any non-conformity, a new guarantee period for all Goods and/or Services delivered of two (2) year shall apply from completion of the remedy unless the remaining portion of the original Guarantee Period is more than two (2) years, in which case the new guarantee period shall be equal to the remaining portion of the original period.
7.3 If the Supplier fails to comply with any of its obligations under Section 7.2 Oceans of Energy shall have, at its sole discretion, the right to (i) reject or refuse acceptance all or any part of the Goods and/or Services and obtain a refund of the Price paid for such Goods and/or Services; (ii) accept all or any part of the non-conforming Goods and/or Services with an equitable adjustment in the Price or such Goods and/or Services; or (iii) take any action as may be required to remedy the non-compliance by itself or by a third party and to recover any additional costs incurred by it from the Supplier.
8 Passing of Title and Risk
8.1 The Supplier warrants that the Goods and Services shall be free of any mortgage, pledge, lien, charge, assignment by way of security, secured interest, or any title retention or other arrangement having the same or similar effect.
8.2 Title to the Goods and/or Services shall be transferred when the particular Goods and/or Services are delivered at the agreed place of performance or are paid by Oceans of Energy, whichever is earlier. Goods or Services paid for before delivery shall be kept separate from the Supplier’s other stock and goods.
8.3 Risk of the Goods and/or Services shall pass in accordance with the agreed INCOTERMS specified in the P.O. and if no INCOTERMS have been specified, delivery shall occur, DDP INCOTERMS 2020, at the location instructed by Purchaser and shall be completed on completion of unloading of the Goods at the delivery location instructed by Purchaser. Delivery of the Goods is only allowed after written approval by Purchaser of the Goods being ready for Delivery.
8.4 Passing of title and/or risk does not imply acceptance of the Goods and/or Services by Oceans of Energy who may reject any Goods or Services in the event that they are defective. If Oceans of Energy rejects any Goods and/or Services, then the risk of the rejected Goods and/or Services reverts back to the Supplier on the earlier of the moment the Supplier takes back possession or two (2) days after Oceans of Energy has rejected the Goods and/or Services.
9 Intellectual Property and Indemnification
9.1 The Supplier warrants that the Goods and Services to be supplied shall not infringe in any way whatsoever on any intellectual property right (including but not limited to patent rights, copyrights and trademark rights) or other right of any third party, and the Supplier indemnifies Oceans of Energy and its agents, contractors, officers and employees from and against any and all damages and expenses (including reasonable legal fees) incurred as a result of any claim of any third party based on the alleged infringement of the aforementioned rights.
9.2 Oceans of Energy shall own all right, title and interest (including intellectual property rights, trade secret rights, sui generis database rights, and all other rights of any sort throughout the world) relating to any and all works of authorship, technical and business concepts and methods, software and software code, designs, know how, ideas and information made or conceived or reduced to practice, in whole or in part, by the Supplier in connection with its performance of the Agreement (collectively, “Proprietary Information”). The Supplier agrees to promptly disclose and provide all such Proprietary Information to Oceans of Energy. The Supplier hereby makes all assignments necessary to accomplish Oceans of Energy’s ownership. Supplier shall further assist Oceans of Energy to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. Where specific intellectual property rights are vested in the Supplier or its subcontractor(s), the Supplier shall secure that Oceans of Energy can make unconditional and unrestricted use of these rights.
10 Confidentiality
10.1 All information, including but not limited to, information regarding Oceans of Energy’s projects and strategies, specifications, drawings, sketches, data or other documentation, disclosed to or developed by the Supplier in connection with the Purchase Order, (i) remains or becomes, respectively, the property of Oceans of Energy, (ii) will be treated by Supplier as confidential information, (iii) shall not be used by Supplier for any other purpose than for the performance of the Purchase Order, and (iv) will only be communicated and distributed to those of the Supplier’s employees, who need to be so informed. At Oceans of Energy’s request Supplier shall sign a separate agreement on confidentiality and non-use.
11 Liability and Indemnification
11.1 The Supplier shall be liable and hold Oceans of Energy and its affiliates and their directors, officers, employees, agents, representatives and contractors (herein referred to as “Indemnified Parties”), harmless from and indemnify them against any and all actual or contingent damage, loss, (personal) injury (including death), expense, cost, fine, penalty, claim, including reasonable attorney fees and litigation costs, suffered or incurred by or brought against Indemnified Parties, resulting from or connected with the Agreement.
11.2 Notwithstanding the above:
(a) the Supplier shall not be liable for any claims, costs, damages, losses and expenses suffered or incurred by Oceans of Energy where such loss or damage is directly attributable to instructions given by or on behalf of Oceans of Energy; and
(b) neither Party shall be liable to the other for any loss and/or deferral of production, loss of product, loss of reputation, loss of profits or revenue, loss of contract, loss of opportunity or loss of use, or any consequential damage or indirect loss whether or not foreseeable at the date of the Agreement.
12 Insurance
12.1 The Supplier shall obtain and maintain at his own expense such insurances as would reasonably be obtained and maintained by a prudent supplier of similar goods and/or services.
12.2 Whenever requested by Oceans of Energy, the Supplier shall provide insurance certificates evidencing that the obligation in Section 12.1 are fulfilled.
13 Changes
13.1 Oceans of Energy reserves the right to amend the scope of the Agreement by notice at any time. If any such change causes an increase or decrease in the Price of or the time required for performance of the Agreement, a fair and reasonable adjustment shall be made to the Price of the affected Goods and/or Services and/or the completion date. In order to be valid and binding any change in the Agreement shall be made in writing and approved by the Parties.
14 Suspension
14.1 Oceans of Energy shall be entitled to suspend performance of its obligations under the Agreement with seven (7) days’ written notice in the event that the Supplier breached the Agreement and has failed to remedy such breach on or before the expiry of the notice.
15 Termination
15.1 The Agreement may be terminated in any of the following circumstances:
(a) within seven (7) days after a written notice by Oceans of Energy specifying a material breach of the Agreement by the Supplier, if the Supplier failed to remedy such breach within the seven (7) days after the date of the notice; or immediately upon written notice if such breach is incapable of being cured;
(b) immediately upon written notice by a Party, if the other Party makes a general assignment for the benefit of creditors, applies for or consents to the appointment or the taking of possession by an administrator, institutes any proceedings seeking to adjudicate itself bankrupt or insolvent, seeks liquidation, dissolution or winding up, or is declared bankrupt or shall enter into a composition or arrangements with its creditors; or
(c) subject to a fourteen (14) days written notice by Oceans of Energy, in the event Oceans of Energy decides, in its sole discretion, to terminate the Agreement for convenience.
15.2 In the event of termination under Sections 15.1(a) or 15.1(b) where the defaulting party is the Supplier, Oceans of Energy shall pay the Supplier the unpaid Price of any Goods and/or Services already delivered to Oceans of Energy.
15.3 In the event of termination under Section 15.1(c) Oceans of Energy shall pay the Supplier:
(a) the amounts set out above at Section 15.2; and
(b) the value of any supply contracts and subcontracts entered into by the Supplier in the reasonable contemplation of completing its obligations under the Agreement so long as such contracts and subcontracts can be assigned to Oceans of Energy, in which case the Supplier shall do all that is necessary to effect such assignment (for the avoidance of doubt Oceans of Energy shall have no liability to pay for such contracts and subcontracts until the same have been assigned).
15.4 The amount set out in Section 15.2 shall be the only payment which the Supplier is entitled to for termination under Sections 15.1(a) and (b). The amount set out in Section 15.3 shall be the only payment which the Supplier is entitled to for termination under Section 15.1(c).
15.5 In case of termination the Supplier shall:
(a) safely and responsibly stop the work;
(b) leave any vacated premises or site secure;
(c) deliver completed or part completed Goods and/or Services to Oceans of Energy or to a place/person nominated by Oceans of Energy;
(d) allow Oceans of Energy or other parties nominated by Oceans of Energy to take over the supply of the Goods and/or performance of the Services; and
(e) where requested by Oceans of Energy transfer to Oceans of Energy or other parties nominated by Oceans of Energy any supply contracts and subcontracts related to the performance of the Agreement that the Supplier has entered into with subcontractors.
16 Force Majeure
16.1 A Party shall not be in breach of its obligation under the Agreement to the extent that fulfilment of such obligation is prevented or delayed by the occurrence of events or circumstances beyond that Party’s reasonable control and which that Party could not have prevented or avoided (“Force Majeure”).
17 Compliance with Law
17.1 The Supplier shall comply with and shall ensure that its subcontractors comply with all applicable laws and
regulations (including permit or certification requirements) at all times including those pertaining to anti-corruption, health and safety and environment and shall ensure that all Goods and Services shall comply with such laws. The Supplier shall indemnify and hold Oceans of Energy harmless against any costs, damages, losses and expenses incurred by the Oceans of Energy arising from any and all infringements by the Supplier of any applicable law.
18 Safety Requirements
18.1 Supplier shall take full responsibility for the adequacy and safety of all its operations and methods necessary for the performance of the P.O. Supplier shall collaborate with Oceans of Energy in establishing Health, Safety, Security and Environment (“HSSE”) arrangements. Supplier shall have a HSSE policy and at any moment requested will overlay to Oceans of Energy such policy
19 Miscellaneous
19.1 Parties herewith agree and acknowledge that Oceans of Energy is entitled to award to other suppliers contracts for goods and/or services similar to the Goods and/or Services supplied by the Supplier.
19.2 The Supplier shall not use the Oceans of Energy logo or trademarks or in any way refer to Oceans of Energy or the Agreement in any form of publicity material without the express and prior written consent of Oceans of Energy. All promotional literature related to Oceans of Energy or the Agreement (including references on the Supplier’s own internet web pages) require Oceans of Energy’s prior agreement and once agreed shall not be changed without Oceans of Energy’s express and prior written consent.
19.3 Should any of the provisions in this Agreement become invalid or unenforceable in law, such provision shall be considered severed from this Agreement and shall not affect the validity of the remainder of this Agreement. The relevant provision shall be replaced by a valid new provision negotiated in good faith between the Parties, which provision is to differ as little as possible from the invalid or unenforceable provision, taking into account the substance and purpose of this Agreement.
19.4 No amendments (including extensions) to this Agreement shall be effective unless in writing and signed by or on behalf of the Parties.
19.5 No delay or omission of any Party in exercising any right, power or remedy provided by law or under this Agreement shall affect that right, power or remedy or constitute a waiver of such right, power or remedy.
19.6 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or to authorize a Party to represent the other Party or to contract on behalf of the other Party. The Supplier shall at all times be an independent contractor and shall not act as the agent of Oceans of Energy (nor shall the Supplier create such appearance) unless the Parties agree otherwise.
19.7 The following provisions shall survive the termination and/or expiry of the term of this Agreement and shall remain in full force and effect: Sections 1 (Definitions and Interpretation), 9 (Intellectual Property and Indemnification), 10 (Confidentiality), 11 (Liability and Indemnification), 18 (Miscellaneous), and 19 (Law and Disputes).
20 Law and Disputes
20.1 The Agreement shall exclusively be governed by the law of the Netherlands.
20.2 Any dispute arising from the Purchase Order shall in first instance be submitted to the competent court in The Hague, the Netherlands.