United States Purchasing Terms and Conditions
WHEREAS, Service Provider desires entry to a Zenith facility (the “Premises”) for the purpose of making a delivery or rendering service to/at said facility.
WHEREAS, (“Zenith”) desires to accommodate said delivery/service to be rendered and to grant such access in association therewith;
NOW, THEREFORE, Zenith hereby grants a non-exclusive right of access to the Premises to Service Provider on the following terms and conditions, and the undersigned and Zenith hereby agree as follows:
1. Service Provider acknowledges that access to the Premises is being granted for the limited purpose As outlined in the Zenith purchase order provided to the Service Provider and Service Provider shall not undertake any other activities on the Premises. Service Provider’s right of access shall be exercised in a manner that does not interfere with Zenith’s business conducted on or associated with the Premises. (on a month-to-month basis until terminated by Zenith
2. Service Provider’s activities and access in connection therewith shall be undertaken in compliance with all applicable federal, state and local rules and regulations. Furthermore, when required and notified of Zenith’s rules and regulations applicable to the Premises, Service Provider shall undertake its activities in compliance therewith. Service Provider acknowledges that the Premises constitute an industrial environment where hazardous materials may be present and hazardous activities may be occurring, and with that understanding, Service Provider shall conduct its activities accordingly, in good and workmanlike manner and with reasonable care. If the activity to be undertaken by Service Provider requires any sampling, boring, excavation, ditching or other disruption of the soil or subsurface of the Premises, Service Provider shall obtain Zenith’s written approval prior to commencing any such activity.
3. Service Provider shall be responsible for any damage to Zenith property or personnel caused by Service Provider’s activities on the Premises.
4. Service Provider agrees to release, defend, and to protect, indemnify and hold harmless Zenith, its parent, affiliates, and subsidiaries, and its and their respective directors, officers, agents and employees (collectively, “Zenith Indemnitees”), from every kind or character of damages, losses, liabilities, expenses, demands or claims, including any and all costs and fees arising out of litigation or settlement of any claims (collectively, “Losses”), to the extent the Losses are caused by, arise from or relate to, directly or indirectly, the negligence or willful misconduct of Service Provider, its agents, employees. The foregoing obligation of Service Provider shall not be diminished in any regard if such Losses may have been caused in part by the negligence, either active or passive, or the strict liability of any Zenith Indemnitee(s) or any third party. Service Provider further agrees that it shall pay, in proportion to its obligation pursuant to this Section 4, all damages, costs and expenses (including attorneys’ fees) in connection therewith or any matter resulting therefrom. Service Provider shall not settle any such action or suit without Zenith’s prior written consent. This indemnification obligation shall survive expiration or termination of this agreement.
5. Upon request of Zenith, Service Provider shall provide Zenith with evidence of insurance, applicable permits and any other requested documentation incident to the access hereby granted, which shall be satisfactory to Zenith prior to granting access.
6. Zenith reserves the right to terminate this Agreement and/or eject Service Provider or any of Service Provider’s employees, agents or business invitees (who shall be considered agents of Service Provider) from the Premises at any time when Zenith observes unsafe or undesirable behavior on the Premises. Failure of Service Provider to comply with this Agreement may, at Zenith’s option, result in sanctions up to and including suspension of Service Provider’s activity on the Premises or ejection of Service Provider from the Premises and/or early termination of this Agreement.
7. The failure of Zenith to insist upon compliance by Service Provider with any obligation or the failure to exercise any remedy does not waive Zenith’s right to do so in the event of a continuing or subsequent delinquency or violation, and Zenith’s waiver of one or more delinquencies/violations does not constitute a waiver of any other delinquency or violation.
8. This Agreement and the rights conferred hereby are not transferable by Service Provider. This Agreement may be amended only by a writing signed by Zenith and Service Provider. The undersigned represents and warrants that (s)he is authorized to bind the Service Provider for purposes of this Agreement.
9. If any section of this Agreement shall be adjudged illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the legality, validity or enforceability of this Agreement as a whole or of any remaining portions.
10. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflicts of laws principles.
11. If this Access Agreement is entered into in conjunction with a Purchase Order or Agreement for Services between Zenith and the Service Provider (the “Contract”), to the extent any provision hereof conflicts with the Contract, the provisions of the Contract shall govern.
Ireland Purchasing Terms and Conditions
1.1. "Affiliate" means any company or other entity controlled having control of or under common control with a party hereto. "Control" means the right to exercise directly or indirectly the vote of more than 50% of the voting shares.
1.2 "Beneficiary Third Party” means any member of Contractor Group and Company Group who is not a Party to this Agreement but to whom the benefit of the indemnities has been extended in Articles 8, 10, 11, 14, 16 and 19.
1.3. "Claim" means any claim, demand, cause of action, judgment, loss, cost, expense, proceeding, penalty, award of damage or liability (including reasonable legal costs and expenses and sums paid by way of settlement and compromise where such settlement or compromise was reasonable).
1.4. "Company" means Zenith Energy or as otherwise identified in the Purchase Order, and the Company’s successors and assigns.
1.5 "Company Group" means (a) Company, and its Affiliates receiving any Materials under this Agreement; (b) The respective employees, officers, directors and agents of the entities mentioned in (a) above.
1.6. "Conditions" means these Standard Terms and Conditions for Purchase Orders for Work, together with any special terms and conditions detailed or incorporated by reference in the Purchase Order which shall prevail over these Conditions to the extent of any inconsistency or conflict with them.
1.7. "Consequential Loss" means any of the following howsoever caused or arising, whether under common law, equity or contract, by virtue of any fiduciary duty, in tort (including negligence) as a consequence of breach of any duty (statutory or otherwise), or under any other legal doctrine or principle whatsoever, irrespective of whether recoverable in law or equity:
(a) loss or deferment of revenue, use, production or profit
(b) losses associated with business interruption including wasted overheads and loss of anticipated savings; (c) loss of bargain, contract, expectation or opportunity;
(d) Any loss, claim or expense which arises out of or is connected with the sale, disposal, exchange or use of, or the transportation or processing of, any production;
(e) any increase in operating costs except as specifically provided for elsewhere in this Agreement; and
(f) all special, indirect or consequential losses or damages of any nature whatsoever.
For the avoidance of doubt, the categories of loss in paragraphs (a) to (f) inclusive shall be losses arising either directly or indirectly whether or not in the contemplation of the Parties at the Effective Date.
1.8. "Contractor" means Contractor or its successor in interest or the permitted assignee of it or its successor in interest.
1.9. "Contractor Group" means (a) Contractor and any of its Affiliates which are involved in providing all or part of the Work; (b) the participating companies in any joint venture with Contractor for providing part or all of the Work; (c) Contractor’s Subcontractors; (d) any of Subcontractors’ Affiliates involved providing all or part of the Work; and (f) the employees, officers,
directors and agents of all the foregoing.
1.10. "Order" means the purchase order form of Company to which the Conditions are annexed.
1.11. "Price" means the price for the Work appearing in the Order.
1.12. "Purchase Order" means the Conditions and the Order, and any amendments agreed by both parties. 1.13. "Regulations" means all laws, rules, regulations, statutes, orders, decrees and by-laws as may in any way apply in relation to the performance of this Purchase Order.
1.14. "Specification" includes any plans, drawings, data or other information relating to the Work.
1.15. "Subcontract" means any contract for performance of any part of the Work between Contractor and a Subcontractor or between two Subcontractors at any tier.
1.16. "Subcontractor" means any person or persons, firm, partnership, corporation or combination thereof engaged by Contractor or another Subcontractor in the performance of the Work or any part thereof.
1.17. "Work" means the work to be performed by Contractor according to the Purchase Order including the supply or provision of any material and equipment specified in the Purchase Order.
The rates of payment and other compensation to Contractor set out in the Purchase Order shall cover the performance of all obligations of Contractor incidental or otherwise in carrying out the Work.
All invoices rendered by Contractor must quote the Purchase Order number and be accompanied by all supporting documentation. Payment by Company shall not prejudice its rights in the future to dispute any part of any invoice. In the event of dispute Company shall pay the undisputed portion upon receipt of VAT qualifying credit notes for the disputed portions. Issue of such credit notes shall not constitute acceptance by Contractor that Company’s dispute is correct. Company shall endeavor to make payment.
No variation to the Work as described in the Purchase Order shall be implemented by Contractor unless first agreed to in writing by an authorised representative of Company. Contractor shall under no circumstances perform additional work of a value in excess of any stated in the Contract and where Contractor anticipates that such value will be exceeded he shall notify Company and seek instructions.
5. MATERIALS & EQUIPMENT
The property in all materials and equipment incorporated or appropriated by Contractor for incorporation in the Work shall vest in Company on delivery of said materials and equipment to the site of the Work. No such materials or equipment shall be removed from the said site by Contractor unless they are surplus to the requirements of the Work and then only or with the prior consent of Company to their removal. All risks of loss or damage to the Work or to the said materials and equipment shall be borne by Contractor until completion of the Work and acceptance of the same by Company.
6. ETHICS & CONFLICT OF INTEREST
Contractor shall not, and shall ensure that its Subcontractors do not, directly or indirectly, pay salaries, commissions or fees, or make payments or rebates to employees or officers of Company, nor favour employees or officers of Company, or designees of such employees or officers, with gifts or entertainment of significant cost or value, or with services or goods sold at less than full market value, nor enter into business arrangements with employees or officers of Company (other than in their capacity as representatives of Company) without Company’s written approval.
All technical, commercial and other information and operating data derived by Contractor from Company is declared to be confidential and shall not be disclosed by Contractor or his personnel to any third party. This obligation shall remain in effect after completion or termination of this Purchase Order.
8. PATENT INFRINGEMENT
8.1. Contractor warrants that all equipment, materials and supplies provided for or in connection with the Purchase Order shall be fit for the specified purpose and will not infringe the intellectual property rights of any third party, whether in the form of patent, registered designs, copyrights, trademarks or any similar rights, and Contractor shall indemnify, defend, and hold harmless Company, its Affiliates from any Claims of whatsoever kind arising as a result of such intellectual property Claims.
8.2. All copyrights, patents, trade secrets or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or works of authorship developed or created by Contractor during the course of performing work for Company shall belong exclusively to Company.
9. APPLICABLE LAW
The Purchase Order shall be governed by and construed in accordance with the laws of Ireland and the parties hereto irrevocably submit to the exclusive jurisdiction of the Irish Courts.
10. LAWS, RULES & REGULATIONS
10.1. Contractor shall comply, and shall require its Subcontractors to comply, with all laws, rules, and Regulations as may apply in relation to the Work and deliveries under the Purchase Order and shall defend, indemnify and hold harmless Company from and against any Claims arising out of any failure by Contractor or its Subcontractors to so comply.
10.2. Contractor shall ensure that all necessary permits and consents have been obtained prior to commencing the Work.
11. LIENS & CLAIMS
Contractor shall defend at its own expense, indemnify and hold harmless Company from and against all liens and other encumbrances against Company's property on account of debts or Claims alleged to be due from Contractor or its Subcontractors to any person, including Subcontractors.
Company shall have the right, at its sole expense, to audit all Contractor’s and any Subcontractor’s records including all books, papers, documents, agreements and any other information that may have an effect on or be related to this Purchase Order and such right shall continue in force for a period of four years after completion of the Work. Contractor will procure this right for Company as regards Subcontractors.
13. FORCE MAJEURE
Any delay or failure in performance of the Purchase Order by either party shall be excused and shall not give rise to any Claim for compensation or damage by the other party if, and to the extent, caused by an occurrence beyond the control and without fault or negligence of the party claiming force majeure and which such party could not reasonably have anticipated or provided against, including, but not limited to, Acts of God, compliance with any proper oral or written order, directive or decree of any Governmental Authority, act or inaction on the part of any Government, explosion, earthquake, fire, flood or other natural physical disaster (but excluding weather conditions), act of war or a public enemy (whether war be declared or not), riot, insurrection, rebellion, sabotage or act of terrorists, official strikes or other like official industrial action
14. RISK STRUCTURE
14.1. Contractor shall defend, indemnify and hold harmless Company Group from and against any and all Claims with respect to (i) the death or illness of or injury to, or disease and mental anguish of any of the personnel of Contractor Group; (ii) the loss or destruction of or damage to any property of Contractor Group; and (iii) the loss or destruction of or damage to any property of
Company Group whilst the same is in the care, custody or control of Contractor Group.
14.2. Company shall defend, indemnify and hold harmless Contractor Group from and against any and all Claims with respect to the death or illness of or injury to, or disease and mental anguish of any of the personnel of Company Group.
14.3. Under no circumstances whatsoever whether by reason of any negligence, breach of duty (statutory or otherwise) or strict liability shall Company be liable to Contractor Group for Consequential Loss suffered by any member of Contractor Group resulting from or arising out of this Purchase Order. Contractor shall defend, indemnify and hold harmless Company Group from any and all Claims resulting from such Consequential Loss.
14.4. Under no circumstances whatsoever whether by reason of any negligence, breach of duty (statutory or otherwise) or strict liability shall Contractor be liable to Company Group for Consequential Loss suffered by any member of Company Group resulting from or arising out of this Purchase Order. Company shall defend, indemnify and hold harmless Contractor Group from any and all Claims resulting from such Consequential Loss.
14.5. The exclusions of liability and indemnities contained in this Purchase Order shall apply to any death, illness, mental anguish, injury, loss destruction or damage which arises out of or in connection with the performance of the Purchase Order and shall apply howsoever arising and by whomever caused, including (i) unseaworthiness, strict liability, breach of warranty (express or implied), imperfection of materials, condition of any premises or transport to or from such premises, (ii) breach of duty (statutory or otherwise), or the negligence of the indemnified Party or any of the members of its group whether the Contractor Group or Company Group, and whether such negligence be the sole, joint or concurrent, active or passive, and (iii) whether the basis for any Claim is in tort, under contract or otherwise at law.
14.6. Should any Claim be raised against any member of Company Group or Contractor Group for which indemnification may be claimed from Contractor or Company respectively under the provisions of this Article 14, the indemnitor shall be informed promptly of same by the other Party or by the one against whom the Claim is made. No such Claim shall be settled without the approval of the indemnitor. After Notification of the original Claim the indemnitor shall assume the defense of such Claim, at its expense.
14.7. Contractor and Company each expressly waives any provision of applicable law of any jurisdiction that may otherwise require a Beneficiary Third Party to notify the obligor that such Beneficiary Third Party intends to rely on such rights.
14.8. This Article 14 shall continue in effect and shall survive, notwithstanding any termination of the Purchase Order for all occurrences prior to the effective date of termination of the Purchase Order and whether or not the effects of such occurrence only arise or manifest themselves after such effective date.
Contractor shall, at its own cost, effect and maintain during the term of the Purchase Order all such insurances as may be required by any applicable Regulations, and general public liability insurance, including contractual liability. The general public liability insurance shall be for not less than €6,500,000 per occurrence. Contractors insurance shall be written or endorsed such that the insurers waive rights of subrogation against the Company or any of its Affiliates. Contractor shall provide evidence of such insurance cover when requested by Company.
16. TAXES & DUTIES
Contractor shall pay all taxes assessed against Contractor in connection with the Work and agrees to indemnify Company and its Affiliates whomsoever in connection with the Work against their being required to make any payment in respect of any taxation, including fines, penalties and interest, assessed on the Contractor, Contractor’s Subcontractors or on Contractors or Contractor’s Subcontractors' employees, or which might have been assessed or assessable as aforesaid but for Company having been required to make such payment.
17. ASSIGNMENT & SUBCONTRACTING
17.1. Company shall have the right to assign the Purchase Order, in whole or in part, to any of its Affiliates or any third party.
17.2. Contractor shall not without the prior written consent of Company assign this Purchase Order or subcontract the whole or any part of the Work and any assignment or subcontracting with the said written consent of Company shall not relieve Contractor from any of its responsibilities or obligations to Company under this Purchase Order.
18. DISPUTE RESOLUTION
Before any Party commences any action in the Courts against the other Party, that first Party shall have notified that other Party in writing of the issue(s) in precise detail; the Parties are then obliged thereby to discuss the issue(s) in dispute and any potential counter Claim brought by the other Party and to seek in good faith to achieve resolution short of going to the Courts. If after a reasonable period which shall not be shorter than two months following the notification of the issue(s) no resolution has been achieved either Party will be free to take the issue(s) to the Court.
19. EXPORT COMPLIANCE
Without prejudice to Vendor's obligations under any applicable master purchasing agreement or similar arrangement, Vendor agrees to abide by all applicable Government export laws and regulations, including, without limitation, those applicable to re-export or the transfer of controlled technology. If a license or other authorization is required by such laws or regulations for any product, service, technology or software obtained under this Purchase Order, Vendor shall apply for the applicable licenses and make copies available to Purchaser. Vendor will timely provide to the Purchaser the export compliance classification number (ECCN) of goods, services, technology or software provided under this Purchase Order and similar number under applicable export control regulations. Vendor agrees that no goods or services provided under this Purchase Order will originate from, or be transported on any vessel owned by or operating under the flag of, any country against which the Government has imposed comprehensive economic sanctions. Vendor agrees to indemnify Purchaser for any fines, penalties, claims, losses, damages, costs (including legal costs), expenses, and liabilities that may arise as a result of Vendor's breach of this provision.
20. HEALTH, SAFETY & ENVIRONMENT
20.1. Contractor shall strictly observe all health and safety Regulations and requirements relating to the Work issued by Company or any Government or other responsible organisations relating to health and safety matters.
20.2. Contractor shall take all reasonable environmental measures in relation to the Work in such a way as to comply with its obligations and duties under the current environmental law.
Contractor shall in addition observe and follow all relevant guides, codes and recommendations issued by Company or any Government or other responsible organisation relating to environmental matters.
21. WARRANTY & GUARANTEES
Contractor hereby guarantees the Work against defects in design, workmanship or materials arising within twenty four (24) months from the date of completion and acceptance by Company of the whole of the Work and shall promptly remedy such defects at its own cost, failing which Company may arrange for the said defects to be remedied and in such event Company shall be entitled to recover the costs of so doing from Contractor. The foregoing shall be in addition to and without prejudice to any other rights and remedies available to Company hereunder or at law arising in respect of such defects.
22.1. Company may terminate this Purchase Order in whole or in part at any time for its own convenience, compensating Contractor for Work performed up to the date of termination.
22.2. In the event that Contractor refuses or fails to make proper or timely performance of the Work or otherwise prejudices or fails to carry out any of its obligations hereunder, Company may terminate this Purchase Order forthwith. Company shall not be liable to pay Contractor any further monies in respect of the Work and Contractor shall be liable for and shall pay Company any costs, expenses or damages properly claimable by Company at law in the event of said termination.
Company shall have the right to inspect or review the state of the Work at all reasonable times and to inform Contractor if any particulars of the Work do not comply with relevant Specifications, plans, safety Regulations or requirements (including Company’s own safety Regulations or requirements) and/or the provisions hereof and Contractor shall without delay take the action necessary to ensure such compliance. Failure of Company to inspect or to call to the attention of the Contractor any such non-compliance as aforesaid shall in no way relieve Contractor of its obligations hereunder.
24. RIGHTS OF THIRD PARTIES
24.1.The benefit of the indemnities in articles 8, 10, 11, 14, 16 and 19 shall extend to the other members of the Contractor Group (other than the Contractor) and the Company Group (other than the Company) hereinafter ‘Beneficiary Third Parties’ but the rights of such Beneficiary Third Parties shall not prevent the exercise of any right Buyer or Supplier may have to vary and/or terminate the Purchase Order, even if that result in the rights of such Beneficiary Third Parties being varied or extinguished.
24.2. In enforcing any right to which it is entitled by virtue of the provisions of the Purchase Order, the remedies of the Beneficiary Third Parties shall be limited to damages. A Beneficiary Third Party shall not be entitled to assign any benefit or right conferred on it under this Purchase Order.
25. INVOICE SUBMISSION
The Contractor shall submit the original invoice complete with all agreed supporting documentation, to be sent for the attention of the Invoice Handling in Bantry Bay Terminal at the following e-mail address:
Netherlands Purchasing Terms and Conditions
1. These terms and conditions are applicable to all agreements in which Zenith Energy Amsterdam Terminal B.V., hereinafter ZEAT, acts as principal towards a service provider, hereinafter referred to as: “Agent/Supplier”, including but not limited to the supply of goods, the provision of services, contracting of work and all further work that must be carried out within the scope of the agreements referred to hereinbefore, hereinafter referred to as: “Contract(s)”.
2. Any amendments to the Contract can only be agreed with prior written approval of ZEAT, by a duly authorized representative.
3. Applicability of any general terms and conditions of the Agent/Supplier is explicitly rejected by ZEAT, which rejection/non-applicability is confirmed by the Agent/Supplier by its acceptance of the Agreement.
2. Creation of the Contract
2.1 The Contract can only be created as follows:
- if a quotation from the Agent/Supplier is followed by an order, the Contract shall be created at the moment when the order is submitted in writing by ZEAT by a duly authorized representative;
- if an order is granted on the basis of a non-binding quotation from the Agent/Supplier, the Contract shall be created if the offer is not withdrawn by the Agent/Supplier within two working days after acceptance by ZEAT;
- if an order is issued without a quotation from the Agent/Supplier, the Contract shall be created if the written acceptance is received from the Agent/Supplier within 5 working days after the order has been issued, and/or if a start has been made with the work within such term in accordance with the Contract. If within 10 working days no acceptance has been received from the Agent/Supplier, ZEAT shall be at liberty to conclude that no Contract whatsoever has been created, without requiring ZEAT to compensate any expenses and/or damages whatsoever.
1. ZEAT has the right to order the Agent/Supplier to change the volume and/or the nature of the deliverable goods and/or work to be carried out. If in the opinion of the Agent/Supplier this leads to financial, technical and/or time consequences, the Agent/Supplier shall notify ZEAT within 5 working days thereof in writing before complying with the change. Parties must subsequently reach agreement about the terms and conditions on which the change shall be carried out. If the parties fail to reach agreement, ZEAT shall have the right to terminate the Contract by means of a written notification to the Agent/Supplier, without requiring ZEAT to pay any compensation of damage whatsoever.
2. The Agent/Supplier is obliged to carry out any change instructed by ZEAT, even if the parties have not reached final agreement with respect to the consequences thereof.
4. Prices and payment conditions
4.1 The agreed prices are fixed and cannot be amended, unless agreed otherwise in writing.
4.2 Invoicing shall be effected after all deliveries/work in accordance with the Contract has/have been carried out and approved by ZEAT, or as has been agreed upon in the Purchase Order. The Agent/Supplier must send substantiation documentation along with the invoice. Payment shall be effected within 30 days after approval of the invoice by ZEAT. If and insofar as an invoice is only approved in part, ZEAT shall only be obliged to pay the approved portion of the invoice amount.
5. General obligations on the part of the Agent/Supplier
5.1 The obligations and work of the Agent/Supplier include the provision of all supplies and work necessary for the proper and complete fulfilment of the Contract.
5.2 ZEAT has the right to instruct the Agent/Supplier to provide security in the form of an unconditional and irrevocable bank guarantee from a banking institution to be designated by ZEAT.
5.3 The Agent/Supplier must carry out the Contract itself. If specific work is sub-contracted by the Agent/Supplier to third parties with the written approval of ZEAT, the Agent/Supplier shall ensure that the terms and conditions of this Contract shall be fully applicable to the fulfilment of said work by such third parties. The Agent/Supplier is and shall at all times remain fully responsible for the work of third parties, if any, during the fulfilment of the Contract, as if it were its own performance, and shall indemnify ZEAT from any possible claims by third parties involved. All rights of ZEAT shall also remain in full force.
5.4 The Agent/Supplier is responsible for its working conditions and safety at work, and is required to comply with all applicable legal regulations, guidelines of the Inspectorate SZW, the locally applicable safety requirements, and the policies and procedures established by ZEAT.
5.5 The Agent/Supplier is not authorized to transfer any rights from the Contract howsoever, including but not limited to claims by the Agent/Supplier against ZEAT, or to pledge, and/or otherwise transfer and/or emcumber them.
5.6 Before commencing to fulfil the Contract, the Agent/Supplier must fully
acquaint itself with all circumstances, which may affect the fulfilment of its work. Any possible consequences of aforementioned circumstances shall be entirely at the expense and risk of the Agent/Supplier and shall not constitute any ground whatsover for extension of the term and/or additional payment.
5.7 If and insofar as legislation with respect to liability for wages & salaries, tax and social security contributions as outsourcing company or principal is applicable to deliveries and/or work, the Agent/Supplier must keep records relating to this Contract in such a manner that the actual costs of labour can be determined. ZEAT is authorized to pay a part of the contract sum to be determined by ZEAT into the “G-rekening” (blocked account) of the Agent/Supplier, or to pay it directly to the institutions referred to in aforementioned legislation.
6.1 The Agent/Supplier warrants as a minimum: that the delivered goods and/or the work carried out meet the requirements of the Contract, possess the qualities that have been promised, are free from any defects, are suitable for their intended purpose and as a minimum meet the legal requirements and other government regulations as are applicable at the time of the fulfilment.
6.2 The warranties referred to in article 6.1 above and any additional warranties shall commence from the delivery of goods and/or fulfilment of work until the final approval by ZEAT, followed by a period of 5 years, unless parties explicitly agree a different period in writing.
6.3 If it turns out that the goods and/or work fail to meet the requirements stated in article 6.1, regardless of the results of any inspection and testing as referred to in article 7.1, the Agent/Supplier shall repair or replace the delivered goods and/or the work carried out at its own expense and risk upon first request of ZEAT, unless ZEAT chooses to terminate the Contract as laid down in article 10, without prejudice to the entitlement of ZEAT to damages. In the event of repair and/or replacement, a new 5-year warranty period shall enter into force for the relevant goods and/or work.
6.4 If the Agent/Supplier does not proceed to repair and/or replacement as referred to in article 6.3, ZEAT shall have the right – without prejudice to its other rights – to repair or replace the defective goods and/or work itself or to have them repaired or replaced, and to recover all costs and damages from the Agent/Supplier.
6.5 ZEAT shall at all times have the right to set off any potential costs and damages against any amounts payable to the Agent/Supplier.
6.6 The warranties referred to in article 6.1 above and any other warranties shall not affect any and all other rights of ZEAT.
7. Inspection and testing
7.1 ZEAT has the right to inspect and test the work and/or the goods or parts thereof - or to have them inspected and tested - both prior to supply/delivery and afterwards. The Agent/Supplier shall notify ZEAT in good time where and when a conformity assessment of the work and/or delivered goods is possible.
7.2 The Agent/Supplier shall enable ZEAT to inspect and test without posing any restrictions and shall provide the necessary facilities and assistance.
8.1 Supply/delivery shall take place no later than the agreed date or period laid down in the Contract, at ZEAT’s site or at a different location specified by ZEAT.
8.2 As soon as the Agent/Supplier is aware or ought reasonably to be aware that the supply/delivery shall not take place, or will be late or non-compliant the Agent/Supplier shall immediately notify ZEAT thereof in writing, stating the circumstances that give rise to such non-fulfilment.
8.3 The risk associated with delivered goods and/or work carried out shall not be transferred to ZEAT until written approval has been obtained from ZEAT.
8.4 In respect of deliverable goods:
- the Agent/Supplier must pack, insure and/or secure the goods such that they shall arrive at their place of destination in good working order by standard transport;
- all deliverable goods (complete with order number, item number and part number) must be accompanied by a packing list stating the description and quantity of the deliverable goods. All packages must be clearly labelled on the outside with ZEAT’s order number;
- for the supply of goods with a unit weight of 1000 kg or more, the Agent/Supplier must notify the warehousing department of ZEAT at least 24 hours before delivery regarding the expected time of delivery.
8.5 The INCOTERMS 2010 published by the International Chamber of Commerce shall apply in relation to the interpretation of the terms of delivery, being Delivered Duty Paid (DDP).
9. Ownership and Right of retention
9.1 The ownership of delivered goods and/or (products of) work carried out shall be transferred to ZEAT upon supply/delivery.
9.2 In the event of advance payment or payment via instalments, ZEAT may demand that ownership shall be transferred to ZEAT at an earlier date. In these cases the Agent/Supplier shall label the goods and/or the corresponding materials and parts as property of ZEAT and shall indemnify ZEAT, including but not limited to, any loss, damage and claims by third parties.
9.3 Under no circumstances shall the Agent/Supplier have any rights of retention and/or rights to suspend performance with respect to delivered goods and/or (products of ) work carried out; in this respect the Agent/Supplier explicitly waives such rights.
10.1 ZEAT has the right to terminate the Contract by means of written notification to the Agent/Supplier:
- if after the expiry of 7 days after written notification by ZEAT the Agent/Supplier fails to fulfil one or any of its obligations by virtue of the Contract or of further contracts arising therefrom, or fails to fulfil such obligations in time or properly,
- in the event of a winding-up, submission of an application for an administration order and/or suspension of business, close of operations or liquidation of the company of the Agent/Supplier;
- if a circumstance leading to force majeure continues for more than 14 days.
10.2 Where article 10.1 applies, ZEAT shall not be liable for expenses and/or damages of any nature whatsoever to the Agent/Supplier, without prejudice to the rights of ZEAT to receive full compensation for damages and expenses.
10.3 Without prejudice to the provisions of article 10.1, ZEAT shall at all times have the right to terminate the Contract by written notification to the Agent/Supplier. The parties shall then determine the consequences of the termination, in which case ZEAT shall only consider compensation of reasonably incurred expenses, if and insofar as the Agent/Supplier has not been compensated already for such expenses pursuant to the Contract, and shall not be liable for any other costs. Under no circumstances shall ZEAT be liable to compensate the Agent/Supplier for any possible indirect damages and/or loss of profit.
10.4 Regardless of the reason for termination, ZEAT shall at all times have the right to carry out the supplies and/or work referred to in the Contract itself or to have it carried out by third parties.
10.5 All claims that ZEAT may have in these circumstances against the Agent/Supplier, now or in the future shall be immediately and fully payable on the date of termination of the Contract.
10.6 The Agent/Supplier is not entitled to terminate the Contract, unless the parties have explicitly agreed otherwise in writing.
11. Liability, force majeure and indemnification
11.1 Agent/Supplier carries out the Contract entirely at its own expense and risk and is liable for all expenses and damage – both directly and indirectly and including any possible damage due to loss of profit – suffered by ZEAT or third parties following and/or in connection with the fulfilment of the Contract, except in case of demonstrable force majeure.
11.2 Force majeure as referred to in article 11.1 shall not in any event include: shortage of employees, disability of employees, strikes, late supply/delivery, unsuitability of materials, incomplete supply of goods and/or performance of work, cash flow and/or solvency problems on the part of the Agent/Supplier, and/or unworkable weather conditions. ‘Force majeure’ shall in all events include: strikes by (employees of) ZEAT and/or strikes by third parties, which affect the obligations of ZEAT pursuant to the Contract.
11.3 The Agent/Supplier shall indemnify ZEAT from all claims by third parties, in whichever form, pursuant to liability as referred to in article 11.1. Article 11.1 also qualifies as a third-party clause.
11.4 The Agent/Supplier shall take out adequate liability insurance as referred to in this article from a first class insurance company with a minimum cover of € 450,000.- per event, and shall give ZEAT access to the insurance policy upon request.
12. Intellectual property
12.1 The Agent/Supplier guarantees that the use, including but not limited to, resale of the delivered goods and/or work carried out by the Agent/Supplier shall not lead to any infringement of patent rights, trade mark rights, copyrights or any other rights of third parties.
12.2 The Agent/Supplier shall indemnify ZEAT from any claims arising from any sort of infringement as referred to in article 12.1 and shall compensate ZEAT for all expenses and damages together with interest thereon caused by such an infringement.
13. Resources and technical data
13.1 Any resources made available by ZEAT or purchased or produced at the expense of ZEAT by the Agent/Supplier such as drawings, models, moulds and so on shall respectively remain or become the property of ZEAT upon purchase or after production.
13.2 In relation to the aforementioned resources, the Agent/Supplier shall:
- submit them to ZEAT for approval at the request of ZEAT;
- label them as the property of ZEAT, such that it is obvious to third parties;
- keep them in good working order and insure them at its expense against all risks;
- not change them and/or deviate from them;
- make them available upon first request of ZEAT and at the latest upon supply/delivery; and
- if it relates to drawings and other documents, to make them suitable for micro filming in accordance with NEN 3526, or any other agreed format in accordance with the Zenith specifications and/or requirements.
14. Miscellaneous applicable regulations
14.1 The following general regulations of ZEAT are applicable:
- ZEAT’s code of conduct, dealing with the following issues, i.e.: health, safety, security and the environment, employees, business relations, governments and communities, business properties and financial integrity;
- HSE requirements of ZEAT (Health, Safety, Security, Environmental and Quality Provisions);
- Specific regulations for the ZEAT site(s) where the Contract(s) are conducted.
14.2 The Agent/Supplier guarantees to ZEAT that the work of the Agent/Supplier, its employees or employees of third parties who are involved in the fulfilment of the Contract, meets the applicable legal regulations in the area of safety at work, and that the Agent/Supplier shall maintain an effective collaboration with ZEAT in the interest of a proper fulfilment of the work.
14.3 The Agent/Supplier guarantees to ZEAT that any staff that it has engaged for the purpose of the ordered work possess a high degree of expertise in their relevant disciplines and also possesses the necessary know-how with respect to regulations concerning safety, health and the environment, which are applicable to the premises of ZEAT relevant to the ordered work, and that the persons that it has engaged shall strictly comply with the aforementioned regulations.
14.4 If in the opinion of ZEAT any employees are not adequately qualified, ZEAT has the right to order the removal of such employees from the premises, and the Agent/Supplier shall be obliged to replace them with due observance of the provisions of article 14.3.
14.5 The Agent/Supplier shall ensure that its presence or the presence of its employees or employees of third parties who are involved in the fulfilment of the Contract on the company premises of ZEAT shall not cause any hindrance to the uninterrupted business operations of ZEAT and work of third parties.
14.6 During their presence on the company premises of ZEAT the persons mentioned in article 14.5 must strictly comply with the legal regulations applicable there and the regulations drawn up by ZEAT.
14.7 Before a start can be made with the work set forth in the Contract, the persons mentioned in article 14.5 must have been notified to the security department of ZEAT, must have attended an induction concerning the regulations drawn up by ZEAT with respect to, including but not limited to, safety, and must be provided with (a) valid access pass(es).
15. Anti-Corruption, Bribery and Anti-Money Laundering
15.1 The Agent/Supplier acknowledges that Zenith Energy has a zero tolerance policy towards bribery, corruption and money laundering. The Agent/Supplier certifies that it is not included on any debarment or sanction list maintained by any governmental authority, nor prevented from performing services for Zenith Energy Morgan by virtue of any governmental order, proceeding or otherwise. If at any time during the term of the Contract, or at any other time that the Agent/Supplier is providing services to Zenith Energy, the Agent/Supplier cannot so certify to Zenith Energy, the Agent/Supplier shall promptly notify Zenith Energy as to its status.The Agent/Supplier confirms and agrees that - in relation to this Contract - it will comply with anti-bribery and corruption and anti-money laundering laws and regulations applicable to both the Agent/Supplier and Zenith Energy. In this course the Agent/Supplier will procure that its employees and service providers including, but not limited to, its subcontractors, agents and other intermediaries will not, offer, give, promise to give or authorise the giving to any person who-soever including but not limited to private individuals, commercial organisations, public officials or persons entrusted with special public service functions within the meaning of Article 84 of the Dutch Penal Code (“Wetboek van Strafrecht”) (“Public Officials”) or any political party, official of a political party, or candidate for public office (together “Beneficiary”), or solicit, accept or agree to accept from any Beneficiary, either directly or indirectly, anything of value including, without limitation, payments including so-called Facilitation Payments, gifts or entertainment (together “advantages”), which might be considered as improper practice or bribery in order to obtain, influence, induce or reward official or private actions or decisions or securing any improper advantage in connection with this Contract (the “Anti-Corruption Obligation”). Facilitation Payments shall include infrequent payments/benefits in cash or kind made to a Public Official to facilitate routine, non-discretionary governmental actions that: (i) the Public Official ordinarily performs; and (ii) one is entitled to under the laws of the relevant country.
15.2 The Agent/Supplier shall: (a) immediately report in writing to ZEAT details of any breach of the Anti-Corruption Obligation in connection with the contract; (b) ensure and monitor compliance with the Anti-Corruption Obligation; (c) in case of any breach of the Anti-Corruption Obligation permit ZEAT to inspect, audit and make copies of any books and records of the Agent/Supplier relating to this Contract and the Agent/Supplier’s compliance with the Anti-Corruption Obligation through an independent and professional auditor who is obliged to observe professional discretion (e. g. certified accountant) appointed by the Agent/Supplier. In case the result of the audit performed is that the Agent/Supplier has breached Anti-Corruption Obligations, ZEAT shall be entitled to reclaim the costs of the audit possibly incurred by ZEAT.
15.3 ZEAT shall – notwithstanding any other rights - have the right to terminate this Contract or suspend any services/supply or payments with immediate effect if ZEAT reasonably believes in good faith that the Agent/Supplier has breached in any material respect any of the requirements set out in this Clause 15.
The Agent/Supplier is obliged to keep confidential from third parties all information originating from ZEAT and with respect to the company premises of ZEAT, as well as any information originating and/or arising from the Contract, which has been made or become known to the Agent/Supplier howsoever. The Agent/Supplier is also obliged to impose such confidentiality obligations on its employees and any third parties that it has engaged.
17. Applicable law and settlement of disputes
17.1 These terms and conditions, the Contract, and all agreements arising therefrom are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention (CISG) dated 11 April 1980 is hereby explicitly excluded.
17.2 Any possible disputes arising between parties shall exclusively be brought before the competent Court of Amsterdam.
18. ASSIGNMENT AND SUB-CONTRACTING
18.1 Zenith may assign, sub-let or pledge the whole or part of its rights, liabilities and obligations under the Contract to a third party upon the same terms and conditions as those agreed upon between the parties hereto without the consent of the Contractor/Supplier and as far as necessary Contractor/Supplier accepts it.
GENERAL CONDITIONS OF PURCHASE OF Zenith Energy Amsterdam Terminal B.V.
In the Contract (as hereinafter defined) the following words and expressions shall have the meanings hereby assigned to them:
1.1 „Approved‟ or „Approval‟ means approved or approval in writing.
1.2 „ZEAT‟ means Zenith Energy Amsterdam Terminal B.V. and/or any of its legal successor(s) by universal or special title.
1.3 „ZEAT Affiliate‟ means:
(i) Zenith Energy Netherlands Amsterdam B.V., a company formed under the laws of The Netherlands, having its registered office at Schiphol Boulevard 231 B-Tower 5th, 1118 BH Schiphol, The Netherlands,
(ii) any legal entity directly or indirectly controlled by Zenith Energy Netherlands Amsterdam B.V., where owning fifty percent (50%) or more of the stock, equity or property of such legal entity, or having the right to appoint fifty percent (50%) or more of the members or owner representatives of such legal entity are examples of forms of control;
(iii) a firm, undertaking, joint venture, association, partnership, or other form of business organization in or through which an entity described in (ii) above directly or indirectly performs as a designated operator or exercises control (directly or indirectly) regarding the management or operations of such entity and in which it directly or indirectly has an ownership, production sharing, or other economic interest.
1.4 „ZEAT Materials‟ means materials and equipment supplied to the Contractor/Supplier, excluding Contractor’s/Supplier’s Materials as defined in clause 1.13 below.
1.5 „ZEAT Representative‟ means the person(s) specified in the Contract, who shall perform the functions set out in clause 8.
1.6 „Certificate of Acceptance‟ means the certificate issued by ZEAT as referred to in clause 15 denoting in writing that the Work has been completed in accordance with the Contract and is approved by ZEAT.
1.7 „Execution of work‟ means any work performed or to be performed by the Contractor/Supplier under Contract, other than under an employment contract, to create, execute and deliver works of a tangible nature, as referred to in Articles 7:750 – 764 of the Dutch Civil Code.
1.8 „Code of Conduct‟ means the code of conduct of ZEAT, as detailed in the Contract in Appendix 5, ZEAT’s Code of Conduct.
1.9 „Conditions‟ means these General Terms and Conditions of Purchase of Zenith Energy Amsterdam Terminal B.V.
1.10 „Contract‟ means any agreement concluded between ZEAT and the Contractor/Supplier together with any amendments or supplements thereto.
1.11 „Contract Programme‟ or „Programme‟ means the programme agreed upon between ZEAT and the Contractor/Supplier for performing the Work required under the Contract up to the point of steady operation (and – if applicable – described in the Contract, usually in Appendix No.2, Scope of Work).
1.12 „Contractor/Supplier‟ means any natural person or legal entity named in the Contract and/or with whom ZEAT is engaged in negotiation for the purpose of concluding any Contract or has concluded a Contract.
1.13 „Contractor's/Supplier’s Materials‟ means all materials, except for ZEAT Materials, including materials to be procured by the Contractor/Supplier in connection with the Contract and any other materials brought upon Site by, or on behalf of the Contractor/Supplier.
1.14 „Contractor's/Supplier’s Representative‟ means the person(s) named in the Contract, who shall perform the functions set out in clause 9.
1.15 „Detailed Control Programme‟ means the schedule of events and associated dates together with any and all amendments to such events or dates as from time to time may be needed for performance of the Work in accordance with the Contract.
1.16 „Drawings‟ means drawings referred to in the Specifications and any modification of such drawings and such other drawings as may be furnished by ZEAT or Approved by ZEAT.
1.17 ‟Enquiry‟ means any request in any form, issued by ZEAT to the Contractor/Supplier for a proposal to (i) deliver Goods and/or (ii) provide Services and/or (iii) perform Execution of work.
1.18 „Equipment‟ means all equipment, appliances or things of whatsoever nature to be utilized by the Contractor/Supplier and/or Sub-Contractor for the purpose of performing the Work but does not include Goods, materials or other things intended to form or forming part of the completed Work.
1.19 „Fault‟ includes, without limitation, (i) any deviation in the Work from the Specification, (ii) any deficiency in the Work, (iii) any Work which is not fit or suitable for its intended purpose, (iv) any inadequately performed Work, (v) any non-compliance with the Contract, (vi) any non-compliance with the warranties in clause 14, (vii) late delivery and/or late performance of the Work.
1.20 „Goods‟ means any products including, but not limited to, materials and/or other items delivered or to be delivered by the Contractor/Supplier to ZEAT in the execution of the Contract, irrespective of whether the Contract solely pertains to the delivery of Goods, or includes the performance of Services or Execution of work.
1.21 „Governmental Body‟ means any court, arbitrator, agency, trust, department, inspectorate, minister, ministry, regulator, exchange, listing authority, official or public or statutory person (whether autonomous or not) having jurisdiction over a party in relation to a matter of transaction contemplated by the Contract.
1.22 „HSSEQ‟ means health, safety, security, environment and quality.
1.23 „Information‟ means any information provided which is in oral or documentary form, and includes without limitation, technical data, specifications, statistics, analyses, and any information relating to the conduct of business in the broadest sense of the word, which may be provided by ZEAT, or acquired by the Contractor/Supplier in the course of performing its obligations under the Contract.
1.24 „Other Contractors and Suppliers‟ means any person(s) with whom the Contractor/Supplier, acting as agent on behalf of ZEAT (only with Approval of ZEAT), concludes agreements for the supply of work or services or materials and equipment relating to the Work.
1.25 „Personnel‟ means the person or persons to be provided by the Contractor/Supplier and/or by the Sub-Contractor for the purposes of performing the Work.
1.26 „Project‟ means the engineering, construction, testing, commissioning and bringing into steady operation of the project to the extent as agreed upon and more particularly described in the Contract.
1.27 „Project Programme‟ means the programme of events and associated dates, as may be amended from time to time, needed for the performance of the Work to complete the Project.
1.28 „Services‟ means any work performed or to be performed by the Contractor/Supplier under Contract to ZEAT, other than on the basis of an employment contract, consisting of something other than the creation of a work of a tangible nature, the safekeeping of goods, the publication of work or the carriage (conveyance) and transportation of persons or goods, as referred to in Articles 7:400 – 413 of the Dutch Civil Code.
1.29 „Site‟ means the ZEAT premises as defined in the Contract, the location at which the Work is to be performed and/or any other location as appointed by ZEAT.
1.30 „Specification‟ means any description of the Work, as mentioned or referred to in the Contract (such as technical specifications and references together with any Drawings referred to therein). If there is no description mentioned or referred to in the Contract, the established best practice between the parties or in the respective industry shall apply as a description, with the condition that the Work delivered in accordance with the established best practice shall comply with all applicable statutory/legal requirements and shall be fit and suitable for its intended purpose.
1.31 „Sub-Contractor‟ means any contractor to whom any part of the Contract has been sub-contracted by the Contractor/Supplier.
1.32 „Work‟ means delivery of Goods, performance of Services, Execution of work and all other work to be performed under and/or in relation to the Contract.
2.1 Words importing the singular include the plural and vice versa where the context so requires.
2.2 The headings in these Conditions and in the Contract are for ease of reference and shall not be deemed to be part of or be taken into consideration in the interpretation or construction of the Contract.
2.3 All instructions, notifications, agreements (including any amendments and supplements to any provision in these Conditions and in the Contract), authorizations and acknowledgements have to be confirmed expressly by both parties and shall be in writing and in accordance with the Contract (for amendments – if applicable – usually in Appendix 6, Contract Amendment Template).
2.4 Any review, Approval or acknowledgement by ZEAT shall not relieve the Contractor/Supplier from any liability or obligation under the Contract.
3 ENQUIRIES AND CONTRACTS
3.1 All Enquiries are without obligation for ZEAT. When the Contractor/Supplier accepts an Enquiry from ZEAT with deviations, such deviations shall not constitute part of the Contract and the Contract shall, after acceptance by ZEAT, be agreed and accepted in accordance with ZEAT’s Enquiry. A Contract shall solely bind ZEAT, if signed by one of ZEAT’s authorized persons as registered in the commercial register of the respective Chamber of Commerce, or as authorized for that purpose by a specific power of attorney.
3.2 Any Contract sent by ZEAT to the Contractor/Supplier shall be agreed upon and signed by the Contractor/Supplier and returned to ZEAT within five (5) working days after the date it was sent by ZEAT. If ZEAT has not received a duly signed Contract by the Contractor/Supplier within ten (10) working days after the day ZEAT has sent the Contract to the Contractor/Supplier, ZEAT shall be free to conclude that there is no agreement between the parties with respect to the Contract and to contract another party without having to compensate Supplier/Contractor in any way.
3.3 ZEAT is at all times entitled to cancel the Contract without being obliged to indemnify the Contractor/Supplier, provided that ZEAT notifies the Contractor/Supplier in writing that it is terminating the Contract, within five (5) working days after agreement and acceptance of the Contract and the receipt by ZEAT of the duly signed Contract by the Contractor/Supplier. ZEAT may compensate the Contractor/Supplier for its reasonably made costs, which is no obligation and solely at the discretion of ZEAT.
3.4 Statements and offers by the Contractor/Supplier are irrevocable and binding and cannot be modified before or after the Contract has been concluded, unless the modifications are in writing and Approved by ZEAT.
3.5 The Conditions are part of all Contracts and shall apply to all acts and juridical acts between ZEAT and the Contractor/Supplier, even if such juridical acts do not result in or relate to a Contract.
3.6 ZEAT declares that it explicitly rejects applicability of all Contractor’s/Supplier’s general terms and conditions.
4 SCOPE OF WORK, DRAWINGS AND TECHNICAL DATA
4.1 The Contractor/Supplier shall exercise all skills, care and diligence in its performance of the Work and the performance of the Work of its Sub-contractors and Personnel. The Contractor/Supplier shall ensure that such performance is in compliance with the highest standards considered and followed in the industry by reputable contractors/suppliers performing work of a similar nature. In the event the Work consists of engineering the Contractor/Supplier shall adopt good and proper engineering practices.
4.2 The Contractor/Supplier shall carry out and complete the Work in strict accordance with the Contract and shall comply with and adhere strictly to ZEAT’s instructions and directions and ensure the same of any Sub-Contractor on any matter connected therewith. The Contractor/Supplier shall take such instructions and directions only from ZEAT or ZEAT’s Representative.
4.3 ZEATs agreement to recommendations and methods proposed by the Contractor/Supplier concerning the Contractor’s/Supplier’s performance of the Work shall in no way whatsoever relieve the Contractor/Supplier of any of its obligations, responsibilities and duties under the Contract.
4.4 The Contractor/Supplier shall, if required or when requested by ZEAT, provide Drawings and technical data in connection with the Work to ZEAT for review and/or record purposes, prior to such Drawings and technical data being issued for construction (IFC). Any such review shall not imply that ZEAT has checked or is responsible for the accuracy or completeness of any Drawings or technical data other than its own. review by ZEAT shall not relief the Contractor/Supplier in any way of its obligations under the Contract.
4.5 Any deviation from or modification to Specifications or Drawings is subject to review of ZEAT. After review, such Specifications or Drawings shall not be deviated from, except as provided for in clause 7. If the Contractor/Supplier considers that there is any omission, inconsistency or inaccuracy in Specifications or Drawings, or that any modifications should be made to such Specifications or Drawings, the Contractor/Supplier shall forthwith give written notification thereof to ZEAT.
4.6 Technical information (including Drawings, designs, Specifications, electronically recorded data, computer programs and calculations) and any intellectual property therein, developed or arising during the Contract or in connection with the performance of the Work including the results thereof, shall belong to ZEAT and ZEAT shall have full access thereto.
4.7 The Contractor/Supplier shall vest in ZEAT all copyrights, design rights, patents (including patent applications) and any other intellectual property rights relating to the Contract and developed or arising during the performance of the Work or acquired from any third party, including the results thereof, and will execute all necessary documents, produce all necessary evidence and do all other things to procure to ZEAT such ownership upon ZEAT’s request so to do and at ZEAT’s expense.
5 CONTRACT PROGRAMME AND PROJECT PROGRAMME
5.1 The Contractor/Supplier shall commence and complete the Work in accordance with the requirements of the Contract (including the Contract Programme and Project Programme, if applicable). The Project shall be definitively completed under the Contract when ZEAT issues the Certificate of Acceptance.
5.2 The Contract Programme supports the Project Programme. In the event that it is necessary to amend the Contract Programme from time to time, the implications of such amendment(s) on the Project Programme shall be determined in accordance with the Contract and all necessary action by Contractor/Supplier taken to mitigate any adverse effects thereon.
5.3 To the extent required by ZEAT the Contractor/Supplier shall submit within a reasonable period a Detailed Control Programme derived from the Contract Programme, identifying the procedures and sequence by which the Work will be performed and against which progress will be monitored. The Contractor/Supplier shall furnish such additional details and information relating to the Detailed Control Programme and to the Contractor’s/Supplier’s compliance therewith, as ZEAT may reasonably require from time to time.
5.4 If at any time during the course of its performance of the Work, the Contractor/Supplier for any reason believes that the Work or any part thereof cannot be completed in accordance with the Contract Programme and the Detailed Control Programme, the Contractor/Supplier shall promptly notify ZEAT in writing of such possible delay and specify the following:
(i) the cause of the delay;
(ii) the effect on the Contract Programme and the Detailed Control Programme;
(iii) The remedial action considered appropriate.
5.5 If in the opinion of ZEAT, the Contractor’s/Supplier’s progress is inadequate or the Contractor/Supplier fails to comply with the Contract Programme and/or the Detailed Control Programme, ZEAT shall then notify the Contractor/Supplier of such inadequacy in writing. The Contractor/Supplier shall immediately take such action as may be necessary to comply with the requirements of the Contract Programme and the Detailed Control Programme. If the Contractor/Supplier fails to take such action ZEAT shall be entitled to take such measures at the Contractor's/Supplier’s expense as ZEAT may deem appropriate to ensure expeditious completion of the Work.
6 COMMUNICATIONS, RECORDS AND REPORTS
6.1 The Contractor/Supplier shall maintain accurate and complete records of all its operations under or relevant to the Contract and ZEAT shall at all times have complete access to all such records and other data as may be compiled relating to the Work (without prejudice to its rights under clauses 23 and 29 hereof). The Contractor/Supplier shall at all times keep ZEAT fully informed regarding the progress and performance of the Work. The Contractor/Supplier shall deliver written reports and data to ZEAT in relation to the Work, as and when requested by ZEAT. All such records and data shall be retained by the Contractor/Supplier up to sixty (60) months from the end of the calendar year in which the Contract has been completed or terminated.
6.2 The Contractor/Supplier shall supply to, or make available for review by, ZEAT or ZEAT’s Representative either at ZEAT’s offices or the Contractor’s/Supplier’s premises, all such data, statistics, drawings, sketches, calculations, log books, manuals, maintenance records and other information as may be required by ZEAT regarding the Contractor’s/Supplier’s compliance with the provisions of the Contract.
6.3 Each week the Contractor/Supplier shall submit to ZEAT or ZEAT’s Representative a progress report showing progress up to the agreed cut-off date, in a format to be agreed upon with ZEAT. The Contractor/Supplier shall also highlight any problems and/or potential problems and also provide its proposed solutions for both cases. Progress meetings may be held periodically between ZEAT and the Contractor/Supplier at either ZEAT’s or the Contractor’s/Supplier’s offices.
7 CHANGES TO WORK
7.1 ZEAT reserves the right to order changes to the Work or to give instructions, as set out in Appendix 3 - Remuneration. Such changes or instructions may include additions, omissions, deletions, substitutions or any other alterations.
7.2 The Contractor/Supplier shall inform ZEAT immediately and in writing of any implications (technical, financial and regarding timing) it believes the changes or the instructions may have. Should the Contractor/Supplier fail to meet this obligation, the changes and/or instructions shall be considered not to have any implications (neither technically, nor financially nor in terms of timing).
7.3 If the Contractor/Supplier has informed ZEAT of these implications immediately and in writing:
- the costs of this additional or reduced amount of work:
- must be presented to ZEAT in a fully open-book format; and
- must be Approved by ZEAT in writing before they are implemented;
- any extensions of deadlines that the Contractor/Supplier believes are required by the changes or the instructions must be Approved by ZEAT before implementation is commenced;
- Any technical implications that Contractor/Supplier believes the change or instruction may have, must be Approved by ZEAT before implementation is commenced.
7.4 If the Contractor/Supplier commences implementation before the changes or the instructions are review by ZEAT as provided above, or if the changes or instructions are implemented without the review of ZEAT, that work shall be deemed not to have any implications for the Contract (neither in a technical, nor in a financial sense nor with regard to timing).
7.5 If ZEAT so requires, the Contractor/Supplier shall implement the requested change to the Work, notwithstanding that agreement may not have been reached.
7.6 For clarity, CLIENT may order at any time work to be carried out immediately in order to avoid any imminent damages or danger.
7.7 No Change
The following are non-exclusive examples of items, which shall not be a change:
Instructions, interpretations, decisions or acts of ZEAT, which are:
a) to achieve compliance with this Contract by Contractor/Supplier;
b) to require Contractor/Supplier, including its Sub-Contractors of any tier to correct errors, omissions, poor engineering, faulty workmanship or any other failure to comply with the Contract;
c) to avoid failure by Contractor to achieve compliance with the HSSE provisions of this Contract;
d) required because of some neglect, omission or default of Contract;
e) the mere addition to the number of man-hours to be utilized by Contractor in the performance of the Work or its other obligations under this Contract, including the iterative exchanges of technical information between ZEAT and Contractor/Supplier which are normal industry practice for project definition work and which may include rework by Contractor/Supplier;
f) any modification or change of or deletion from the Work necessary to avoid injury or death to persons or damage to property or as a consequence of Contractor’s failure to comply with any of its obligations under this Contract;
g) to avoid failure by Contractor to achieve compliance with all applicable laws and regulations including any requirements stated in applicable permits.
8 THE ZEAT REPRESENTATIVE
8.1 ZEAT may designate a ZEAT Representative, that shall have the overall authority over the Contractor/Supplier for the proper and timely completion of the Work and shall have the necessary authority to issue instructions as may be necessary for the proper execution of the Work, and to stop or suspend any item of the Work which, in his opinion, is not performed to a satisfactory standard and to require the Contractor/Supplier to make good that item of the Work as necessary, at no additional cost to ZEAT.
8.2 The ZEAT Representative may appoint any number of persons to assist him in the exercise of his functions under clause 8.1 hereof. The ZEAT Representative shall notify to the Contractor/Supplier the names and functions of such persons. The said assistants shall have the power to issue any instructions to the Contractor/Supplier in so far as such instructions are necessary to enable them to discharge their functions and any instructions given by any of them for this purpose shall be deemed to have been given by the ZEAT Representative.
9 THE CONTRACTOR'S/SUPPLIER’S REPRESENTATIVE
9.1 When requested by ZEAT, the Contractor/Supplier shall designate a Contractor's/ Supplier’s Representative who shall be authorized to receive on behalf of the Contractor/Supplier all directions and instructions in connection with the Work from ZEAT. The designation of such Contractor’s/Supplier’s Representative has to be Approved by ZEAT.
9.2 The Contractor/Supplier shall not change the above appointment without Approval of ZEAT, and shall ensure that before any change of Contractor’s/Supplier’s Representative, there will be an appropriate handover between the current Contractor’s/Supplier’s Representative and his replacement. Such Approval will not be unreasonably withheld and shall not absolve the Contractor/Supplier from any of its responsibilities hereunder.
9.3 In the event that ZEAT requires the removal of the Contractor's/Supplier’s Representative the Contractor/Supplier shall immediately provide a replacement Approved by ZEAT and at no cost to ZEAT.
10 INVOICES AND PAYMENT
10.1 Prices shall be fixed and, unless otherwise agreed upon in writing, are expressed in euros and exclusive of value added tax. Any prices, including changes to prices, wages, social security premiums, taxes and other cost-determining factors cannot be increased during the term of the Contract. Unless otherwise explicitly agreed upon, the prices shall include all costs relating to Contractor’s/Supplier’s performance of its obligations, including but not limited to, the costs of packaging, inspection, insurance and delivery at ZEAT’s destination free of freight and import charges, unloaded and tested. Prices shall also include the costs of horizontal and vertical transportation. The prices further include the cost of any preliminary and other work required to meet ZEAT’s explicit demands, descriptions and Specification.
10.2 Contractor/Supplier must state the following clearly on invoices:
a) the date and the contract number of the Contract;
b) the work to which the invoice applies and location(s) where it was performed;
c) the time span and the activity performed that the invoice concerns;
d) the name of the administrative office of social insurance, or UWV, of which the Contractor/Supplier is a member and Contractor’s/Supplier’s member number;
e) the Contractor’s/Supplier’s income tax number;
f) whether the transfer regulation (“verleggingsregeling”) with respect to sales tax applies or not and if the last is true, the amount of the sales tax;
g) the already invoiced amount, including the relevant invoice;
h) the amount still to be invoiced;
i) upon request of ZEAT: the names of the employees engaged, the hours these employees worked, and – if ZEAT requests – the relevant payrolls;
j) an attached receipt, signed by ZEAT, evidencing the approval of the Work performed;
k) a clear description of the performance delivered;
l) the bank name and full address; m. the swift/bic code;
m) the sort code and account number;
n) the IBAN code;
o) the Chamber of Commerce number;
p) the VAT number;
q) in case of goods imported within the EU: the commodity code and nett-weight.
10.3 The invoices must also meet the requirements stated in Article 35a of the Dutch 1968 Sales Tax Act (“Wet Omzetbelasting”) and must be submitted to ZEAT in duplicate. In the event the Dutch Social Insurance Act (“Wet Financiering Sociale Zekerheden – Wfsv”) and/or the Dutch Collection of the State Taxes Act 1990 (“Invorderingswet 1990”) and/or the Implementing Regulations for the Liability of Recipients, Subcontractors and Clients 2004 (“Uitvoeringsregeling inleners-, keten-, en opdrachtgeversaansprakelijkheid 2004”) applies, a statement of the total amount of wages (as referred to in the aforementioned acts and/or regulations) per hour worked must also be sent.
10.4 The Contractor/Supplier shall be responsible for the payment of all customs and import duties which become payable upon the import of any materials and equipment for the Work, unless explicitly agreed otherwise in writing. When applicable the Contractor/Supplier shall make a request for rebate of import duty and shall pass on any rebate to ZEAT.
10.5 Payment by ZEAT is not due until the Contract has been fully and correctly performed and the Work has been accepted in accordance with clause 16. If the conditions in the preceding sentence have been fulfilled, ZEAT shall pay the invoice within thirty (30) days after receipt of a correctly made out invoice. Notwithstanding the foregoing ZEAT and the Contractor/Supplier may agree upon a (different) payment schedule, such agreement to be in writing and signed by both parties. Payment by ZEAT does not mean approval of any part of the Work by ZEAT.
10.6 In the event ZEAT shall dispute any item on any invoice in whole or in part, or if the invoice is prepared or submitted incorrectly in any respect, ZEAT shall return a copy of the invoice to the Contractor/Supplier informing the Contractor/Supplier of the error and requesting the Contractor/Supplier to issue a credit note with regard to the unaccepted part or whole thereof as applicable. ZEAT reserves the right to pay only the undisputed portion of an invoice. ZEAT and the Contractor/Supplier shall forthwith settle any matters in dispute and any required modification shall be the subject of an invoice which shall be submitted by the Contractor/Supplier in accordance with this clause 10.
10.7 The Contractor/Supplier shall ensure that all invoices for the Work are submitted within thirty (30) days after the issuing of the Certificate of Acceptance or, in case the Work is completed without issuing a Certificate of Acceptance, after completion of the Work. All invoices shall be supported by the relevant substantiation documentation as appropriate to evidence the sums shown. In case the Contractor/Supplier has not fulfilled this obligation, its rights to submit invoices and its right for payment to that matter have lapsed.
10.8 The Contractor/Supplier is not authorized to transfer or pledge or tacitly pledge his receivables from ZEAT to a third party, unless it obtains prior permission in writing from ZEAT. Furthermore, the Contractor/Supplier is not entitled to set off any receivables owed by the Contractor/Supplier and/or any of its affiliates to ZEAT against receivables owed by ZEAT to the Contractor/Supplier irrespective of source and obligation to pay.
10.9 ZEAT is entitled to set off receivables owed by ZEAT and/or ZEAT Affiliates to the Contractor/Supplier against receivables owed by the Contractor/Supplier to ZEAT and/or ZEAT Affiliates irrespective of source and obligation to pay.
10.10 If the completion of the Work is suspended as intended in clause 19, the payment term under clause 10.5 shall start from the date that the Work is suspended and respectively stored and secured in accordance with the instructions of ZEAT.
10.11 Without prejudice to its other rights, ZEAT is entitled to recover from the Contractor/Supplier all expenses relating to proceedings in and out-of-court, including lawyer’s fees, debt recovery or the enforcement of the Contractor’s/Supplier’s obligation to execute the Contract.
11 TAX RESPONSIBILITIES AND INDEMNITY
11.1 The Contractor/Supplier shall be responsible for, and shall indemnify ZEAT against, the payment of all taxes, duties and charges, and any penalties thereon, assessed or levied by any Governmental Body in respect of profits earned or income received or receivable by reason of the Contract and further undertakes that payment shall be made of all taxes, charges and duties and any penalties thereon assessed or levied upon any persons provided by the Contractor/Supplier or Sub-Contractor in connection with the Work.
11.2 On request, the Contractor/Supplier shall supply and shall procure that any Sub-Contractor hereunder will supply to ZEAT such information, including documentary information, in connection with its own or its Sub-Contractor’s activities under or pursuant to the Contract as may be required by ZEAT for any of the following purposes:
11.2.1 to enable ZEAT to comply with the lawful demand or requirement for such information by any Dutch government department or agency;
11.2.2 to enable ZEAT to conduct, defend negotiate or settle any claim arising out of, or in connection with, such activities, whether or not such claim has become the subject of arbitration or judicial proceedings;
11.2.3 To enable ZEAT to:
- file any and all applications in connection, including but not limited to, any claim for allowances or reliefs in accordance with Dutch tax rules, or
- make any and all representations in connection with Dutch tax rules, or
- contest any and all assessment on Dutch tax rules, or
- contest any and all liability of ZEAT in connection with Dutch tax rules.
The obligations of the Contractor/Supplier set forth above shall take effect from the date of award of the Contract, continuing thereafter for a period of seven (7) years after the end of the calendar year in which the Contract is completed or terminated. The Contractor/Supplier shall retain and shall procure any Sub-Contractor hereunder to retain, all information and documents in connection with its activities under or pursuant to the Contract as to enable the Contractor/Supplier to comply with its above obligations.
11.3 The Contractor/Supplier shall indemnify and hold harmless ZEAT against all loss, claims, liabilities, demands, actions, costs and expenses whatsoever arising out of or in connection with any assessment or levy made in respect of all or any of the aforesaid taxes, charges, duties and penalties, as a result of any failure by the Contractor/Supplier or any Sub-Contractor in complying with this clause 11.
11.4 For the purpose of clause 11.1, 11.2, and 11.3, “tax” includes tax, duty or charge and any penalty or interest thereon and any other costs and charges whatsoever assessed or imposed by any competent authority and having effect nationally.
12 DUTCH COLLECTION OF STATE TAXES ACT (“INVORDERINGSWET”)
12.1 In the event the Dutch Social Insurance Act (“Wet Financiering Sociale Zekerheden – Wfsv”) and/or the Dutch Collection of the State Taxes Act 1990 (“Invorderingswet 1990”) and/or the Implementing Regulations for the Liability of Recipients, Subcontractors and Clients 2004 (“Uitvoeringsregeling inleners-, keten-, en opdrachtgeversaansprakelijkheid 2004”) applies, the following must be shown by the Contractor/Supplier at ZEAT‟s first request:
a) a permanent residence permit insofar as it is required;
b) proof of registration from the industrial association insofar as the relevant association issues such;
c) identification and payroll sheets of all the workers engaged in the Work;
d) a valid proof of registration from the Chamber of Commerce;
e) the guarantee account, or G-account;
f) Dutch tax service registration.
12.2 Once per quarter and at ZEAT’s request, the Contractor/Supplier will submit a statement regarding Contractor’s/Supplier’s payment history with the relevant industrial association, as well as a statement from the tax service regarding Contractor’s/Supplier’s payment of income tax.
12.3 With regard to the Work, ZEAT is at any time entitled by Contractor/Supplier either to withhold the premiums and income tax for which ZEAT is jointly and severally responsible pursuant to the Dutch Social Insurance Act (“Wet Financiering Sociale Zekerheden – Wfsv”) and/or the Dutch Collection of the State Taxes Act 1990 (“Invorderingswet 1990”) and/or the Implementing Regulations for the Liability of Recipients, Subcontractors and Clients 2004 (“Uitvoeringsregeling inleners-, keten-, en opdrachtgeversaansprakelijkheid 2004”) and to pay such directly to the relevant industrial association or the Dutch Tax Authorities, respectively, on behalf of Contractor/Supplier or to pay it to Contractor/Supplier by depositing such into Contractor’s/Supplier’s blocked G-account. In the event ZEAT exercises this right, Contractor/Supplier is bound to promptly fulfill the other regulations as referred to in Article 60, Paragraph 2 of the Dutch Social Insurance Act (“Wet Financiering Sociale Zekerheden – Wfsv”) Jo. Article 34 and 35 of the Dutch Collection of the State Taxes Act 1990 (“Invorderingswet 1990”) Jo. The Implementing Regulations for the Liability of Recipients, Subcontractors and Clients 2004 (“Uitvoeringsregeling inleners-, keten-, en opdrachtgeversaansprakelijkheid 2004”). By paying or depositing such, ZEAT is discharged over and against the Contractor/Supplier up to the amount of these sums.
12.4 ZEAT is entitled to alter the amount to be withheld or deposited if, with regard to performing the Contract, ZEAT is of the opinion that Contractor/Supplier will owe a higher amount in social insurance premiums and income tax than has been established. ZEAT will inform the Contractor/Supplier of this in writing.
12.5 If by performing its obligations pursuant to an applicable collective bargaining agreement (CAO), ZEAT had to pay this tax and premiums for Contractor’s/Supplier’s employees or following notice of liability for tax and premiums not paid by Contractor/Supplier or Sub-Contractors who follow Contractor/Supplier, ZEAT will have recourse against Contractor/Supplier for the amount of the entire sum that ZEAT paid, increased by the statutory interest and costs incurred.
13 CONTRACTOR’S/SUPPLIER'S GENERAL OBLIGATIONS
13.1 The Contractor/Supplier shall, in addition to its responsibilities defined elsewhere in the Contract, provide, be responsible for and/or bear the following, at no additional cost to ZEAT:
13.1.1 Management and head office costs, all other overheads and profit unless otherwise provided for under the terms of the Contract.
13.1.2 Provision of all necessary Equipment and facilities to carry out and complete the Work, including consumables and sufficient spare parts for all normal maintenance requirements of the Equipment to meet any reasonable foreseeable contingency.
13.1.3 Supplying all other items whether of a temporary or permanent nature to satisfactorily complete the Work including, but not limited to, temporary materials and consumables.
13.1.4 Being responsible for programming each area of work and for achieving progress in accordance with the agreed Programme for any section of work undertaken.
13.1.5 Being responsible for identifying and reporting any shortfall in progress and immediately proposing/implementing remedial/corrective measures. Where such shortfall occurs for any reason except as a result of ZEAT's instructions the Contractor/Supplier is responsible for any associated additional costs resulting from the shortfall.
13.1.6 Ensuring that sufficient Personnel to maintain the agreed Work are provided at all times.
13.1.7 The Contractor/Supplier must ensure that its Personnel and any Sub-Contractors Personnel working on the Site must have a valid B-VCA (for non-lead functions) or a valid VOL-VCA (for lead functions) certificates or similar certificates as Approved by ZEAT and a VIT (Safety Introduction) training (as detailed in the Contract, - if applicable - usually in Appendix 4, Health, Safety, Security, Environmental and Quality Requirements).
13.1.8 Ensuring all Personnel employed on the Work shall be properly qualified, skilled, experienced and competent in their respective callings to a recognized industry standard. Contractor/Supplier shall satisfy ZEAT as to its methods of selection and testing of all categories of Personnel.
13.1.9 In the event that Personnel are removed from the Work, replacing such Personnel with similar and suitably qualified Personnel.
13.1.10 Making payment of Personnel's wages and salaries and providing for any deduction and payment of all relevant local or national personnel taxes and dues as may be required to meet appropriate government requirements and any other personnel taxes, including administrative costs. The Contractor/Supplier shall also be responsible for payment of all other costs associated with Personnel including, but not limited to, travelling, accommodation, medical attention, holidays and sickness costs unless otherwise and specifically agreed to the contrary.
13.1.11 The Contractor/Supplier is obliged to request permission for overtime work in accordance with the rules and as stated in the Dutch Working Hours Act.
13.1.12 Notifying Personnel of those conditions contained herein which are relevant to their employment under the terms of the Contract.
13.1.13 During the existence of the Contract the Contractor/Supplier shall remain responsible for the Personnel but when working at ZEAT's premises Personnel shall be subject to all safety regulations and arrangements applicable at the Site and the Contractor/Supplier must take all necessary steps to ensure compliance with such regulations and arrangements. ZEAT reserves the right to demand the immediate withdrawal of any Personnel for non-compliance with the foregoing.
13.1.14 At its own cost ensuring that all appropriate Personnel are trade tested and providing ZEAT with such evidence as may be required that testing is to a satisfactorily approved standard and that all test certificates are valid.
13.1.15 Permitting ZEAT to audit the Contractor's/Supplier’s trade testing and to require Personnel to undertake independent testing if so instructed by ZEAT and, if Personnel pass the test, then the cost shall be reimbursed by ZEAT. If Personnel fail the trade test the Contractor/Supplier shall remove them from the Work and provide suitable replacement(s) at no additional cost to ZEAT.
13.1.16 Not replacing any key Personnel without the Approval of ZEAT.
13.2 If the Conditions are applicable in an international relationship with the Contractor/Supplier, the Contractor/Supplier shall inform ZEAT continuously and immediately about provisions in the Conditions, which in the Contractor’s/Supplier’s state are not enforceable. The Contractor/Supplier shall not rely on possible non-enforceability of such provisions, after failing to fulfil its obligation in the first sentence of this clause, and shall indemnify ZEAT for any loss arising therefrom, save if ZEAT has refused to pay the afore-mentioned reasonable costs.
14 INSPECTION AND TESTING
14.1 ZEAT and the Contractor/Supplier shall agree to the list of tests and inspections necessary during the execution of the Work. ZEAT shall have the right at all times to attend such tests and inspections and shall receive from the Contractor/Supplier a seven (7) working days’ written notice of any afore-mentioned tests and inspections.
14.2 ZEAT shall, at all times, have the right to inspect the Work and all work in progress, or material utilized, in connection with the execution of the Work for the purpose of determining that the Work is being performed in accordance with the terms of the Contract. Such inspections shall be conducted in accordance with normal industry standards.
14.3 The Contractor/Supplier shall consult with ZEAT or ZEAT’s Representative in all matters pertaining to the Work. ZEAT shall promptly notify the Contractor/Supplier, in writing if practical, regarding any part of the Work which, in their opinion, does not or will not conform to the requirements of this Contract. Failure to notify shall not relieve the Contractor/Supplier of its obligations or liabilities. After having received such notice from ZEAT, the Contractor/Supplier shall correct such non-conformities which are inconsistent with the Contract. However, if the Contractor/Supplier finds that there is not any non-conformity as is alleged by ZEAT, the Contractor/Supplier may request that ZEAT submits in writing, to the Contractor’s/Supplier’s Representative, full details of the alleged non-conformities and a request that states the specific corrections to be made by the Contractor/Supplier.
14.4 No part of the Work shall be covered up, concealed or blocked from view without the approval of ZEAT or ZEAT’s Representative and the Contractor/Supplier shall provide reasonable written notice to ZEAT or ZEAT’s Representative to inspect any part of the Work which is about to be covered up, concealed or put out of view.
14.5 The Contractor/Supplier shall reveal any part of the Work as directed by ZEAT or ZEAT’s Representative for the purpose of inspection and shall restore and/or correct such part to the satisfaction of ZEAT or ZEAT’s Representative. If any such part has been covered up, concealed or blocked from view after compliance with the requirements of clause 15.4 above and are found to be executed in accordance with the Contract, the cost of uncovering and restoring the part to its original state shall be borne by ZEAT, but in any other case all such costs shall be borne by the Contractor/Supplier.
15 DELIVERY/COMPLETION AND OWNERSHIP
Completion of the Work
15.1 Completion of the Work by the Contractor/Supplier other than its defects liability obligations under the Contract shall be achieved when the Work has been performed in accordance with the Contract, when the steps as described below have been taken and the Certificate of Acceptance as specified in clause 15.4 below has been issued. The risk for the Work, including damage or loss thereto shall remain with the Contractor/Supplier up to the date on which a Certificate of Acceptance is issued.
15.2 If Contractor/Supplier is of the opinion that the Work is ready for Mechanical Completion, he shall give written notice thereof to ZEAT. The notice shall be accompanied with a record of a comprehensive punch round, conducted by Contractor/Supplier. This record of the punch round shall demonstrate that the request for Mechanical Completion Certificate is reasonable given the minor punches identified on the punch list, failing which ZEAT may reject the Contractor’s/Supplier’s request. Upon acceptance of the notice the Contractor/Supplier and ZEAT shall conduct a shared inspection round.
A Mechanical Completion Certificate (“MCC”) will be issued when the Work or part thereof has passed the prescribed tests successfully and no defects other than minor outstanding works or minor defects have been found, which will not substantially affect the use of the Work by ZEAT for its intended purpose and (pre-)commissioning activities can start.
Contents of the MCC
15.3 The MCC shall be drawn-up by the Contractor/Supplier and signed by both ZEAT and the Contractor/Supplier. The MCC shall contain in any event the following items:
(a) The nominated representatives of both parties;
(b) Inspection and cold commissioning procedures if applicable;
(c) Complete list of those parts of the Work meeting the requirements for the MCC;
(d) List of preliminary as built documents documentation delivered to ZEAT;
(e) All test certificates of all the specific parts of the Work;
(f) Complete punch list of all defects discovered before the MCC date and of those parts of the Work not meeting the requirements of the Contract;
(g) Measures to be taken to remedy the defects listed under (f);
(h) Dates by which outstanding defects will have been remedied, leading to the achievement of Acceptance .
Certificate of Acceptance
15.4 The Certificate of Acceptance (“AC”) shall be issued by ZEAT when Contractor/Supplier has completed all parts of the Work other than its defects liability obligations and Contractor/Supplier has:
(a) satisfactorily remedied all defects listed in the MCC punch list;
(b) submitted all as-built documentation to ZEAT, which has subsequently been approved by ZEAT Representative;
(c) submitted all guarantee certificates applicable to the Work;
(d) in the opinion of ZEAT, fulfilled all other obligations under the Contract other than its defects liability obligations under the Contract.
15.5 The issuance of the MCC or the Certificate of Acceptance shall not invalidate or diminish the penalties and/or discounts that ZEAT may be entitled to.
Possession prior to AC
15.6 Whenever it may be advantageous or necessary for ZEAT to do so, ZEAT shall be permitted to occupy or use any part of the Work which has been either partially or fully completed by Contractor/Supplier before AC. Such use or occupation shall be deemed as if AC has been issued but shall not relieve Contractor/Supplier of its guarantee of said Work nor of its obligation to make good at its own expense any defect in materials or workmanship which may occur or develop prior to issuance of the Certificate of Acceptance or end of defects liability period whichever comes first, unless such defect is caused by the negligence or misuse of the Work by ZEAT.
15.7 Where agreed, the Contractor/Supplier may request a Certificate of Acceptance (in all events, only to be issued after all previous steps have been taken and prior certificates have been issued) when an individual part of the Work has been completed in accordance with the Contract.
Time for completion/execution
15.8 The agreed upon period for execution of the Contract, shall start on the day referred to in the Agreement. If no such day is mentioned in the Agreement, the execution period shall start on the day the Contractor/Supplier accepts the Contract.
15.9 In all cases, the (last day of the) period within which the Contract must be executed is a strict deadline. The Contractor/Supplier shall be in default without any prior notification or warning necessary, if the delivery or completion of the Work is not performed on the date(s) or within the time period(s) agreed upon with ZEAT. Any payable penalty for late delivery agreed upon between the parties does not prejudice the Contractor’s/Supplier’s obligation to indemnify ZEAT in full, nor will it affect any other rights and remedies available to ZEAT under the Contract and applicable law.
15.10 The Contractor/Supplier shall be obliged to inform ZEAT promptly if deadlines for implementation or delivery are expected to be exceeded, immediately proposing remedial/corrective measures to be implemented after ZEAT’s Approval. ZEAT reserves the right to alter the scheduled periods and the Contract Programme for the Work, or the delivery, or other activities in connection with the progress of the Work, without these alterations giving the Contractor/Supplier any right to make any claims, including claims for additional payment or adjustment.
15.11 If the agreed upon period is exceeded, the Contractor/Supplier shall reimburse ZEAT any advance or guarantee payments the Contractor/Supplier has received. The Contractor/Supplier shall not set off these amounts against any justified or alleged claims on ZEAT. Furthermore, any private or financial security provided by ZEAT or third parties on ZEAT’s instructions for the purpose of the Contract shall terminate by operation of law. The Contractor/Supplier shall relieve any guarantors from their duty to stand surety and/or liability to provide collateral pursuant to the Contract, or take the appropriate steps to make sure that they are relieved from their duties and/or liabilities to stand surety or provide collateral. If the Contractor/Supplier fails to perform the obligation in the preceding sentence, the Contractor/Supplier shall forfeit a penalty payable to ZEAT equivalent to the amount guaranteed by the guarantor or the value of the provided collateral.
15.12 The Contractor/Supplier guarantees that it has the necessary licenses at its disposal, and that transport and deliveries comply with statutory safety regulations and the Contract.
15.13 Partial deliveries of Work are only permitted if expressly stated in the Contract.
15.14 The (delivery of the) Work is at the expense and risk of the Contractor/Supplier, even if the Contractor/Supplier engages ZEAT’s employees to perform acts during delivery (save in the event of loss caused by an intentional act or gross negligence on the part of ZEAT or its management).
15.15 Without prejudice to other obligations of the Contractor/Supplier, including, but not limited to, such as mentioned in clauses 13 and 14, the Contractor/Supplier shall at its expense and risk be obliged to repair all defects that occur during the defects liability period of two years, commencing after the issuance of the Certificate of Acceptance by ZEAT, at the first request of and in consultation with ZEAT within a time period to be set by ZEAT. The costs of re-inspection and retesting shall be borne by the Contractor/Supplier. If the Contractor/Supplier fails to comply with this clause, ZEAT is entitled, at the expense of the Contractor/Supplier, to repair such defects itself or to have the defects repaired by third parties.
15.16 At the expense and risk of the Contractor/Supplier, the Contractor/Supplier shall take all possible action to contribute to the prevention of interruption to ZEAT’s enterprise, and to minimize additional costs and/or incurred loss and/or damages.
16 WARRANTIES, DEFECTS LIABILITY
16.1 Without prejudice to any special warranties or guarantees given by the Contractor/Supplier, the Contractor/Supplier warrants as a minimum that:
16.1.1 the Work is fit and suitable for its intended purpose;
16.1.2 the Work is in conformity with the Specification, the Enquiry and/or the Contract, as well as with models, Drawings et cetera, if provided;
16.1.3 the Work is of good quality, sound and complete in design, processing, manufacturing, construction and size, and is free from defects in design, materials, workmanship and execution;
16.1.4 no faulty raw and other materials have been used, and the Work is safe and not defective (as required by Book 6, Article 186 of the Dutch Civil Code), as well as in accordance with reasonable expectations;
16.1.5 the Work is performed in a good, efficient, professional and workman-like manner and in accordance with best (engineering and refinery) practices;
16.1.6 the Work has been manufactured and/or performed using state of the art technology;
16.1.7 the Work complies with applicable national and international statutory laws and regulations;
16.1.8 the Work is in conformity with any and all procedures and/or procedural guidelines and/or requirements as set forth by ZEAT;
16.1.9 the Work meets all requirements, which can reasonably be demanded.
Defects Liability Period
16.2 Upon the issuance of the Certificate of Acceptance a defect liability period of 24 months shall commence (“Defects Liability Period”). This means that all defects in the Work that occur during the Defects Liability Period, shall be remedied and/or repaired and/or re-performed by the Contractor/Supplier at ZEAT’s first request and free of charge, unless the defect is caused by incompetent use by ZEAT or by normal wear and tear, or is the result of other circumstances attributable to ZEAT to be proven by the Contractor/Supplier. After repairing a defect, a new Defects Liability Period, equal to the duration of the initial period, will come into effect.
16.3 Any guarantees given by suppliers, vendors or subcontractors for specific parts of the Work, which are valid for a longer period than the Defects Liability Period, shall be valid for that longer period.
16.4 If the Contractor/Supplier fails within a reasonable time to perform its warranty obligations or Defect Liability Period obligations as described in this clause, ZEAT shall have the right to remedy the Fault or defect itself and recover from the Contractor/Supplier all costs and damages arising from the Contractor’s/Supplier’s failure. Without prejudice to any other rights which ZEAT may have, Contractor/Supplier agrees that ZEAT may deduct such costs and damages including without limitation any transportation and any other costs incurred by ZEAT from any payments due to the Contractor/Supplier.
16.5 If a faulty Product justifies a recall action, either pursuant to applying statutory provisions or in the opinion of the Contractor/Supplier, ZEAT or both, the Contractor/Supplier shall promptly take action, after approval of ZEAT, that may decide upon the conditions of the recall action, and pay the respective damages, loss and costs and indemnify ZEAT for third-party claims due to the Faults, unless the Contractor/Supplier and ZEAT expressly agree otherwise in a statement signed by both parties.
16.6 If the safety of persons and/or the progress of the Work require so, ZEAT is entitled, at its sole discretion, to repair or have provisional repairs carried out at the expense and liability of the Contractor/Supplier.
16.7 The Contractor/Supplier warrants that the Work will be executed in compliance with the agreed time period(s) and within the working hours operated at the Site and in such a way that the work of ZEAT and third-parties is not disrupted.
16.8 ZEAT’s rights hereunder are in addition to and not in substitution of any express, implied statutory or other rights.
17 TRANSFER OF TITLE/RIGHT OF RETENTION
17.1 ZEAT acquires the title to the Work or each part thereof upon delivery to ZEAT’s Site, or earlier if legal transfer of title occurs earlier.
17.2 Notwithstanding clauses 16 and 17.1, ZEAT shall be the owner of the ordered Goods from the moment the Goods are stored on its behalf.
17.3 Notwithstanding clause 10.5, if the parties have agreed that non-completed Work will be paid for in part or in full at an earlier date than provided for in clause 10.5, ZEAT acquires the title to the Work, Goods, materials, raw materials and non-completed products, which the Contractor/Supplier has used or designated for the performance of the Work, pursuant to his advanced payment, without further delivery being required. The Contractor/Supplier shall procure the forthcoming Work, materials, raw materials or non-completed products free of charge or third-party rights and store these separately from other goods. The Contractor/Supplier shall register and clearly mark all such Work, materials, raw materials or non-completed products as being owned and held on behalf of ZEAT, in such a way that it is clearly noticeable for third parties. If so requested by ZEAT, the Contractor/Supplier will promptly cooperate with executing a deed of transfer and will take all further actions and measures necessary in order for ZEAT to become full owner of the Goods and of any semi-finished of prefabricated goods, materials of products destined to be part of the Work that have not yet arrived at ZEAT’s Site.
17.4 The Contractor/Supplier has no right of retention or suspension in respect of the Work and as far as necessary it waives any rights in that respect. The Contractor/Supplier shall create no lien or charge, nor permit any lien or charge to be created on the Work or any part thereof.
17.5 ZEAT reserves the right not to pay any part of the Work, including, but not limited to, any goods or materials whatsoever, if the Contractor/Supplier cannot give satisfactory proof that title to such part of the Work, including, but not limited to, Goods and materials, is owned by the Contractor/Supplier or, at the sole discretion of ZEAT, will unconditionally transfer to ZEAT ultimately on payment being made. The Contractor/Supplier hereby grants to ZEAT an irrevocable power of attorney to do all that is necessary to affect the transfer of legal title to ZEAT.
18 CARE OF ZEAT MATERIALS
18.1 The Contractor/Supplier shall take full responsibility for the care and safe and proper use of ZEAT Materials from the time of receipt thereof until returned to ZEAT in good order and condition upon ZEAT’s first request or upon termination of the Contract.
18.2 The Contractor/Supplier will take on all expenses and liability during the use of the ZEAT Materials; ZEAT will not be liable for any loss arising from the Contractor/Supplier or third parties using the ZEAT Materials, unless if caused by a wrongful act or gross negligence on the part of the managing staff of ZEAT. The Contractor/Supplier shall not use the materials, or allow or authorize third parties to use the materials for any other purpose than for the correct execution of the Contract.
18.3 The Contractor/Supplier shall provide separate and adequate storage for ZEAT Materials and shall clearly identify such as being the property of ZEAT. ZEAT preserves the title to all ZEAT Materials. The Contractor/Supplier shall refrain from any acts or omissions in respect to these materials causing ZEAT to lose its property rights. Furthermore, the Contractor/Supplier guarantees that these materials shall not be pledged or encumbered with third-party rights in any way.
18.4 Upon receipt of ZEAT Materials, the Contractor/Supplier shall subject them to an immediate visual inspection and shall notify ZEAT in writing within three (3) working days of their receipt of any defects that are discovered by such inspection. If the Contractor/Supplier fails to notify ZEAT in accordance with this clause and as a result of such failure ZEAT suffers any loss or expense or loses any warranty, the Contractor/Supplier shall reimburse, entirely at its own cost, such losses or expenses or loss of warranties.
18.5 The Contractor/Supplier has no right of retention or suspension in respect of the ZEAT Materials and as far as necessary waives its rights to that respect.
18.6 ZEAT retains its intellectual property rights, including comparable rights such as know-how, to the ZEAT Materials. The Contractor/Supplier acquires a strictly personal, non-transferable license to use the materials for the duration of the Contract within the meaning of this clause, and under the resolute condition that in the event that the Contractor/Supplier fails to fulfill any or all of the statutory and contractual obligations vis-à-vis ZEAT this license will immediately be terminated.
19.1 ZEAT shall have the right to suspend performance of the Work by the Contractor/Supplier, or any part thereof, in the event of Fault or failure of the Contractor/Supplier in carrying out the Contractor’s/Supplier’s obligations under the Contract. In such event no compensation shall be payable by ZEAT to the Contractor/Supplier in respect of any costs and/or damages incurred by the Contractor/Supplier as a result of such suspension.
19.2 Apart from suspension as meant in clause 19.1, ZEAT shall furthermore have the right to suspend performance by the Contractor/Supplier of the Work, or any part thereof, for any reason at any time and from time to time by informing the Contractor/Supplier in writing, specifying that part of the Work which is to be suspended and the effective date of such suspension.
19.3 Except for suspension under clause 19.1, ZEAT shall pay the Contractor/Supplier for Work that is according to ZEAT’s standards satisfactorily performed up to the date of suspension and other reasonable direct costs incurred by the Contractor/Supplier in complying with ZEAT’s instructions.
19.4 The Contractor/Supplier shall immediately secure, make safe and protect all Work performed up to the date of suspension and shall cease performance of the suspended Work during the suspension.
19.5 The Contractor/Supplier shall, during any period of suspension, continue to perform any non-suspended Work with all due diligence.
19.6 Except as provided elsewhere in this clause, any costs, loss or damage sustained by the Contractor/Supplier during suspension shall be for the account of the Contractor/Supplier.
19.7 The Contractor/Supplier furthermore hereby waives any right to suspend its performance and/or to terminate the Work.
20 FORCE MAJEURE
20.1 In case of a non-imputable failure (“force majeure”), no party shall be under any liability whatsoever to the other party for any failure of delay in the performance of its obligations pursuant to the Contract, provided that it has fulfilled its obligations towards the other party pursuant to this article.
20.2 Force majeure shall, amongst others, not include: shortage of employees, disability of employees and strikes (for instance of Personnel, suppliers or any other third party), late delivery and/or unsuitability of materials and/or raw materials, non-completed products or services, imputable failure or unlawful acts of suppliers or third parties engaged by the Contractor/Supplier, liquidity or solvency problems on the part of the Contractor/Supplier. Force majeure shall also not include impossible working conditions due to the weather, unless the time for completion of the Contract is expressed in a number of workable working days, in which case working days shall be regarded as unworkable days when on such days, due to impossible working conditions due to the weather, the majority of the workmen or the equipment of the Contractor/Supplier have been unable to work for at least five hours.
20.3 ZEAT may invoke force majeure in case of strikes of ZEAT personnel, strikes at ZEAT’s Site(s) and/or strikes of third parties affecting ZEAT’s obligations with regard to the performance of the Work.
20.4 If either the Contractor/Supplier or ZEAT is prevented from, or delayed in, performing any of its obligations under the Contract by force majeure then it must promptly notify the other in writing of the circumstances constituting the force majeure, and of the performance of obligations which are thereby prevented or delayed for as long as the force majeure may continue, provided that the party involved shall use all reasonable endeavors to minimize the effect of such force majeure.
20.5 Upon conclusion of a force majeure occurrence the party involved shall immediately notify the other party and resume performance of any obligation under the Contract which had been prevented or delayed by reason of the force majeure.
20.6 In the event of force majeure continuing for fourteen (14) working days or more the parties shall consult and agree upon a course of action, notwithstanding the right of ZEAT to terminate the Contract pursuant to clause 21.2.
TERMINATION BY ZEAT WITH CAUSE
21.1 If (i) the Contractor/Supplier fails to execute the Contract properly, and fails to correct such Fault within a period of seven (7) working days from the date of written notification by ZEAT of such Fault, (ii) the term for executing the Contract, or part thereof, is exceeded and/or (iii) it can reasonably be assumed that the Contractor/Supplier will be unable to timely and properly execute the Contract, ZEAT shall without prejudice to its other rights be entitled to terminate the Contract out-of-court in part or in full, by merely notifying the Contractor/Supplier thereof, without any compensation to be paid by ZEAT being required.
21.2 Without prejudice to its other rights ZEAT may immediately terminate the Contract by giving notice in writing to the Contractor/Supplier:
21.2.1 if The Contractor/Supplier breaches any of the HSSEQ provisions as detailed in the Contract, the Code of Conduct as referred to in clause 27 or, in ZEAT’s sole judgment, fails to meet the required standard of safety performance;
21.2.2 if any present or future mortgage, charge, pledge or other security on or over the whole or any part of the undertaking, property, assets or revenues of the Contractor/Supplier becomes enforceable and any step (including taking possession of or the appointment of an administrative receiver) is taken to enforce that security;
21.2.3 if a distress, attachment, execution or other legal process is imposed, enforced or sued out on or against all or a substantial part of the property or assets of the Contractor/Supplier;
21.2.4 if any step is taken by any person for the bankruptcy, winding-up, liquidation of or the appointment of an official receiver, in relation to the Contractor/Supplier;
21.2.5 if the Contractor/Supplier is bankrupt, unable to pay its debts as they fall due or is deemed unable to pay its debts;
21.2.6 if the Contractor/Supplier begins negotiations or takes any proceedings or other steps with a view to readjustment, re-scheduling or deferral of all of its indebtedness or any voluntary arrangement by way of a composition in satisfaction of its debts or a scheme of arrangement of the affairs of the Contractor/Supplier or a compromise of arrangement between the Contractor/Supplier and its creditors or members shall be proposed, approved or effected;
21.2.7 In the event of force majeure on the part of the Contractor/Supplier continuing for fourteen (14) working days or more.
21.3 In the event of termination of the Contract by ZEAT pursuant to clause 21.1 and/or 21.2 above, ZEAT shall not compensate Contractor/Supplier for any costs, loss and/or damages. If the event giving rise to the termination also constitutes an attributable failure to perform (toerekenbare tekortkoming) on the part of the Contractor/Supplier, ZEAT’s rights under this clause 21 shall be without prejudice to ZEAT’s right to claim damages.
TERMINATION BY ZEAT WITHOUT CAUSE
21.4 Notwithstanding the foregoing ZEAT may terminate the Contract at any time by giving the Contractor/Supplier written notice of termination. The Contractor/Supplier shall immediately interrupt its execution of the Contract upon receipt of such written notice. ZEAT and the Contractor/Supplier shall then discuss the consequences of termination and ZEAT shall only consider reimbursement to the Contractor/Supplier, insofar as such charges shall not have already been covered by payments on account to the Contractor/Supplier, for:
21.4.1 such portion or portions of the Work executed or performed in accordance with the Contract up to the date of termination;
21.4.2 reasonable, necessarily, actually made and verifiable costs and demobilization expenses incurred after the date of termination, unless provision for same is made under the Contract; and
21.4.3 an amount to be agreed in respect of any expenditure reasonably incurred by the Contractor/Supplier in expectation of completion of the Work, but ZEAT shall not in any event compensate Contractor/Supplier for loss of profit, prospective profit or production. After termination without cause, ZEAT shall have the right to compensate the Work or employ others to complete the Work.
CONSEQUENCES OF TERMINATION BY ZEAT
21.5 In the event of termination by ZEAT pursuant to this clause, the Contractor/Supplier shall (i) provide reasonable assistance, co-operation and documentation to assist ZEAT to transition the Work with as little disruption to ZEAT as is possible in the circumstances from the Contractor/Supplier to a replacement service provider or to ZEAT; (ii) promptly deliver to ZEAT all ZEAT Materials, Goods, materials or other things intended to form or forming part of the completed Work, together with copies of all Drawings, specifications and other documents prepared or obtained by the Contractor/Supplier in connection with the Work including the originals thereof, (iii) carry out ZEAT’s instructions concerning any cancellation or assignment of sub-contracts, purchase contracts and any other matters arising out of the Contract which ZEAT decides are necessary or appropriate.
21.6 In the event of termination under clauses 21.1 or 21.2, ZEAT shall have the right to complete the Work or employ others to complete the Work and to recover from the Contractor/Supplier all costs, loss and damages incurred, had the Contract not been terminated together with all other costs, loss and damages associated with or arising from the termination. ZEAT shall have the right to recover such costs, loss and damages either directly from the Contractor/Supplier or by deducting such costs, loss and damages from any monies due or which become due to the Contractor/Supplier. With regards to equipment hired by the Contractor/Supplier for the purpose of the Work and brought on to the Site, hire contracts for such equipment shall contain provisions for ZEAT to continue to hire such equipment on the same terms and conditions as the Contractor/Supplier in the event of termination of the Contract by ZEAT with cause. Following termination as aforesaid the Contractor/Supplier shall not be entitled to any further remuneration for work carried out prior to termination until such time as the Work is completed and all costs have been finally ascertained by ZEAT.
21.7 All costs, loss and damages ZEAT has incurred or may incur in the events described in clauses 21.1 and 21.2 vis-à-vis the Contractor/Supplier shall immediately become due and payable.
21.8 Pursuant to termination, ZEAT is entitled to claim restitution of all transferred payments on the grounds of the payment obligation having lapsed. In asmuch as an obligation has been partly fulfilled and is not eligible for restitution and is in accordance with the Contract, the Contractor/Supplier is entitled to compensation, based on a reasonably calculated value of the Work for ZEAT, against the amount ZEAT is entitled to claim from the Contractor/Supplier for non-performance and/or cancellation. Inasmuch as restitution is possible, ZEAT shall be entitled either to retain the fulfilled part of the Contract against the afore-mentioned compensation, or to return it at the expense and liability of the Contractor/Supplier, without prejudice to its rights under the Contract.
21.9 If ZEAT holds the title to the Work it wishes to terminate in accordance with this clause 21, after termination of the Contract, pursuant to which it acquired the title of the Work, it shall also retain the title thereto providing collateral for any claim it may have on the Contractor/Supplier. If ZEAT does not hold the title to the Work, the Contractor/Supplier is obliged on first request of ZEAT to establish a right of pledge (collateral) or mortgage providing collateral for any claim it may have on the Contractor/Supplier solely on grounds related to the termination, including grounds related to the performance of the Work.
21.10 Termination within the meaning of this clause shall not cause the lapsing of any of ZEAT’s rights under the Contract.
NO RIGHT OF TERMINATION BY CONTRACTOR/SUPPLIER
21.11 Contractor/Supplier has no right to terminate the Contract, unless explicitly agreed upon by ZEAT in writing.
22 LIABILITY AND INDEMNITY
22.1 The Contractor/Supplier shall be fully liable for the execution of the Contract. All damage, both direct and indirect, including but not limited to any loss of profit, and costs, including reasonable legal fees, arising from, or in connection with the execution of the Contract incurred by ZEAT or third parties shall be fully compensated by the Contractor/Supplier, irrespective of whether the damages are caused by the Contractor/Supplier itself, its employees or any other persons the Contractor/Supplier engages for the execution of the Contract, including but not limited to, employees of ZEAT. The afore-mentioned right to damages is without prejudice to ZEAT’s other rights under the applicable law, including but not limited to immediate repair free of charge and/or replacing products or parts thereof and/or re-performance.
22.2 The obligations of the Contractor/Supplier in clause 22.1 shall equally apply to third-party damage as intended in this clause. This clause is to be considered a third-party clause as meant in Article 6:253 of the Dutch Civil Code.
22.3 The Contractor/Supplier shall defend, indemnify and compensate ZEAT against (i) all actions, proceedings, damages, charges, expenses whatsoever and howsoever caused, all claims and threatened claims by third parties ,including but not limited to Personnel, against ZEAT, including but not limited to, claims for compensation for death, injury, (consequential) loss or damages, (ii) costs, including reasonable legal fees, incurred in defending against such claims, and (iii) all liabilities of ZEAT to third parties, where such claims, costs and liabilities arise from or are in connection with the Contractor's/Supplier’s, including any of its Sub-Contractor’s or Personnel’s performance of any Contract with ZEAT.
22.4 In any event, and save as specifically provided to the contrary in the Contract, in no circumstances shall ZEAT be liable in contract, tort, including negligence or breach of statutory duty, misrepresentation, restitution or otherwise howsoever, and whatever the cause thereof for any loss which may be regarded as special, indirect or consequential howsoever caused.
23 INTELLECTUAL PROPERTY INDEMNITY
23.1 All intellectual and industrial property rights, and the ownership thereof, with regard to the Work shall be the sole property of ZEAT. The Contractor/Supplier shall, if necessary by means of a deed, transfer to ZEAT all intellectual and industrial property rights in the Work, and the ownership thereof, immediately upon the delivery of the Work to ZEAT or, to the extent requested by ZEAT, at an earlier date. The parties shall undertake all formalities and steps necessary to transfer these rights in accordance with the applicable law, and in execution thereof shall sign all documents necessary or desirable to achieve full and legal transfer of the ownership of these rights, including but not limited to registration of ZEAT as the owner of the rights in the registers concerned.
23.2 Documents, drawings and other data carriers issued by ZEAT, as well as the rights related to them, or which are used and produced by the Contractor/Supplier for the implementation of the Contract, shall remain or become the property of ZEAT. If necessary, the Contract signed by the Contractor/Supplier shall constitute a transfer in advance of all relevant rights of intellectual and industrial property related to drawings, specifications, specific or project-based models, etc., to the extent that this is further required by law. Insofar as the rights in question have not become the property of ZEAT pursuant to the above, the Contractor/Supplier shall be obliged on demand to co-operate with the transfer of those rights to ZEAT in the manner prescribed by the applicable law.
23.3 The documents and rights provided for in clause 23.1 may not be reproduced or issued to third-parties or otherwise used other than for the execution of the Contract. Upon completion of the Contract these documents and drawings shall be returned by the Contractor/Supplier on first request of ZEAT. The Contractor/Supplier shall issue all drawings and details to ZEAT free of charge.
23.4 The Contractor/Supplier guarantees that it is fully entitled to execute the Contract and that the Work does not infringe any intellectual or industrial property rights of third parties. It fully indemnifies ZEAT for such infringement or similar claims relating to know-how, unlawful competition included. The Contractor/Supplier shall indemnify ZEAT and hold ZEAT harmless from and against all actions, claims, demands, costs, charges, and expenses arising from any infringement or alleged infringement of letters patent, design, copyright, trademarks or other industrial property rights arising out of or in connection with the performance of the Work by the Contractor/Supplier, its Sub-Contractors or suppliers. The Contractor/Supplier shall promptly notify ZEAT if it is or becomes aware of any such infringement or alleged infringement, or any matter which may give rise to a claim for infringement. In such event ZEAT shall have the right, without prejudice to the rights of ZEAT including the right of termination of the Contract, to require the Contractor/Supplier at no extra cost to ZEAT:
- to amend or alter the respective part of the Work or its performance thereof in such manner as shall avoid infringement whether actual, alleged or potential;
- acquire the right retrospectively to be able to continue using the respective part of the Work;
- take back the respective part of the Work against reimbursement of damages, loss, costs and interest. Alteration, adjustments and/or replacement shall not have the effect that ZEAT’s options for using the Work are impaired in any way.
23.5 The Contractor/Supplier shall (i) take on all expense and liability if legal proceedings should be instituted against it on the grounds of an infringement on any third-party’s intellectual or industrial property rights, (ii) shall bear any costs, including legal fees and compensations that might be imposed on ZEAT, (iii) in consultation with ZEAT defend ZEAT.
24 INSURANCE TO BE PROVIDED BY CONTRACTOR/SUPPLIER
24.1 The Contractor/Supplier shall effect and maintain with a first class insurance company, insurance adequate to cover all of its third party liabilities related to the Contract.
24.2 The Contractor/Supplier shall, at no additional expense to ZEAT, effect and maintain insurance covering but not limited to:
24.2.1 Contractor’s/Supplier's and Sub-Contractor's property and ZEAT Materials;
24.2.2 Employers' Liability, meaning liability of its own personnel and any other persons the Contractor/Supplier engages for the execution of the Contract, including but not limited to employees of ZEAT, with a minimum coverage of EUR 5,000,000.00 per event;
24.2.3 Third Party/Legal Liability, with a minimum coverage of EUR 5,000,000.00 per event;
24.2.4 in cases where the Work includes Execution of work: Construction All Risk (CAR) Insurance as agreed with ZEAT to a minimum amount of EUR 10,000,000.00.
24.3 The Contractor/Supplier shall obtain from its insurers a waiver of all rights of subrogation against ZEAT endorsed upon all such policies of insurance.
24.4 Where policies are effected to meet the requirements of this clause 24, the Contractor/Supplier shall ensure that ZEAT is co-insured for the purpose of the Contract only.
24.5 The Contractor/Supplier shall, if so requested, provide evidence of all insurances required herein, including any renewals thereof, and shall provide certificates with respect to the policies carried, together with any other relevant information ZEAT may reasonably require.
24.6 In so far as the Contractor’s/Supplier's insurance does not protect Sub-Contractor(s) and suppliers, the Contractor/Supplier shall, at no additional expense to ZEAT, effect and maintain the required insurance or procure that its Sub-Contractor(s) and suppliers have suitable insurance as required by the Contract.
25 HEALTH, SAFETY, SECURITY, ENVIRONMENTAL AND QUALITY PROVISIONS
25.1 The Contractor/Supplier shall be responsible for putting in place and maintaining the required and appropriate HSSEQ-measures and for maintaining health, safety and security in general, this in accordance with the applicable laws, rules, regulations, policies, guidelines, etc. in that regard, with particular reference, but expressly not limited, to the Dutch Working Conditions Act (Arbeidsomstandighedenwet) and the HSSEQ-requirements of ZEAT (as detailed in the Contract, - if applicable - usually in Appendix 4, Health, Safety, Security, Environmental and Quality Requirements). Contractor/Supplier declares that it will accept and comply with all changes to these HSSEQ-requirements of ZEAT in advance. The Contractor/Supplier shall strictly comply with all laws, rules, regulations, policies, guidelines, etc. in the field of health, safety, security and environment and with all of ZEAT’s own health, safety, security, environmental and quality rules, practices and procedures and shall ensure that all persons assigned to perform the Work shall comply with the same rules at no cost to ZEAT.
25.2 The Contractor/Supplier shall also be responsible and liable for the equipment, materials and facilities it uses for the execution of the Contract and for the safety of the Personnel and third-parties.
25.3 The Contractor/Supplier is obliged to immediately report to ZEAT any dangerous situations and “near-miss” accidents as soon as such situations (might) arise.
25.4 In order to ensure that the Personnel actually comply with the regulations concerning health, safety, security, welfare and environment:
25.4.1 the Contractor’s/Supplier’s managers and foremen shall hold regular planned safety inspections, note deviations from the regulations and corrective action taken, and submit written reports of said inspections, deviations and corrective actions to ZEAT’s safety department;
25.4.2 the Contractor/Supplier shall appoint a safety advisor, to give on-the-spot advice on all matters concerning safety, health, welfare and environment;
25.4.3 at least once per month, the Contractor/Supplier shall hold a so called “tool-box” meeting and submit a written report of this to ZEAT’s safety department.
25.5 Any failure by the Contractor/Supplier to comply with the above requirements shall be regarded as a material breach of the Contract.
26 SAFETY OF GOODS
To enable ZEAT to comply with its obligations under applicable health and safety legislation, the Contractor/Supplier shall provide ZEAT with adequate information about any Goods supplied under the Contract, the use for which they are designed and tested and about any conditions necessary to ensure such Goods will be safe and without risk to health when properly handled, stored, transported and used. This information is to be supplied in writing, marked with the relevant Contract number and relevant item number(s) and addressed to ZEAT as stated in the Contract.
27 CODE OF CONDUCT
In connection with Contractor’s/Supplier’s performance of the Contract, the Contractor/Supplier agrees to act consistently with ZEAT’s Code of Conduct as detailed in Appendix 5 - Code of Conduct) and to adhere to the principles set out therein including the principles of non-retaliation against "whistle blowers". Any failure to comply with this clause shall be deemed a material breach of the Contract.
28 COMPLIANCE WITH LAWS
The Contractor/Supplier shall observe and abide by and shall require its Sub-Contractors and Personnel to observe and abide by all laws, rules, regulations, policies, guidelines, etc. of Governmental Bodies, including, but not limited to those that are currently applicable or may become applicable in the future to the Contractor’s/Supplier’s and ZEAT’s business, Equipment and Personnel, and not to engage in activities objectionable to mentioned authorities.
29 AUDIT RIGHTS
29.1 ZEAT shall have the right at its own expense to inspect and audit any of the Contractor's/Supplier’s records in connection with the Work and all transactions related thereto as may be necessary in the opinion of ZEAT to verify that the requirements of the Contract are being met and shall have access to all information relating to the rates and prices as may reasonably be required, if applicable to the Contract, to verify payments made to or by the Contractor/Supplier under or pursuant to the Contract. Such inspections and audits may be carried out by ZEAT or its authorized ZEAT Representatives at any time from the effective date of the Contract until expiry of twenty-four (24) months from the end of the calendar year in which the Contract is completed or terminated. ZEAT shall conduct any such inspections and audits in a manner which will result in a minimum of inconvenience to the Contractor/Supplier.
29.2 The Contractor/Supplier shall co-operate fully in the conduct of such inspections and audits and ZEAT shall have the right to reproduce and retain copies of any of the records. Any amounts found as a result of such inspections and audits to have been overcharged by the Contractor/Supplier shall be repayable to ZEAT. The Contractor/Supplier shall include for itself identical rights of audit in all sub-contracts and such rights shall be extendible for the benefit of ZEAT and ZEAT Representatives.
30 CONTRACTOR/SUPPLIER TO INFORM ITSELF
30.1 The Contractor/Supplier shall be deemed to have a full understanding and knowledge of the nature and extent of the Site and the Work to be performed and to have satisfied itself completely as to the conditions under which the Work is to be carried out including, but not limited to, means of access, climatic conditions, conditions affecting the supply of labour and materials, security, fire and safety regulations and all matters whatsoever affecting, or which may affect, the performance of the Work. The Contractor/Supplier warrants its full understanding of all requirements of the Work and confirms, without reservations, its ability to realize/bring about such Work in complete conformity with the provisions of the Contract.
30.2 The Contractor/Supplier shall be deemed to have satisfied itself completely that its rates and/or prices are correct and sufficient to cover all its obligations and liabilities under the Contract and all matters and things necessary for the proper execution of the Work. The Contractor/Supplier accordingly shall have no claim for extra payment on the grounds of a lack of knowledge, nor shall it be relieved or excused from any obligations and/or liabilities.
31 CONFIDENTIALITY AND PUBLICITY
31.1 Any and all Information and any information derived therefrom shall remain the property of ZEAT. The Contractor/Supplier, including its Sub-Contractors and Personnel shall keep all Information confidential and shall not , without the Approval of ZEAT publish or disclose, or make use of the Information except for the purpose of implementing the Contract. Information may only be released by the Contractor/Supplier to a third party or Sub-Contractor accepting a like obligation of confidentiality, and then only to the extent necessary for the performance of the Contract or the sub-contract. The Contractor/Supplier shall not disclose the existence or terms of the Contract or publish or permit to be published either alone or in conjunction with any other person any information, article, photograph, illustration or any other material of whatever kind relating to the Contract, or ZEAT’s business generally, without prior reference to and Approval from ZEAT. Such Approval shall apply to each specific application and relate only to that application.
31.2 The Contractor's/Supplier’s obligation not to divulge Information to a third party shall not apply to information which:
31.2.1 is part of the public domain otherwise than in consequence of a breach by the Contractor/Supplier, its Sub-Contractors or Personnel of their obligations under this clause 31.
31.2.2 was in the Contractor's/Supplier’s possession prior to award of the Contract and which ZEAT did not notify the Contractor/Supplier as being confidential.
31.2.3 was received from third parties having the right to disclose such information.
31.2.4 the Contractor/Supplier is obliged to submit to Governmental Bodies.
For the avoidance of doubt, nothing expressly contained in or implied from the Contract shall be deemed to give rise to or constitute any exclusivity of purchase or supply or in any way prevent or restrict ZEAT from purchasing goods and services which are similar or identical to the Goods and Services from any source whatsoever or in any way prevents the Contractor/Supplier from supplying or offering to supply the Goods and Services to any other person.
33 INDEPENDENT CONTRACTOR
In the performance of the Contract, it is hereby declared that the Contractor/Supplier is an independent contractor, and nothing in the Contract shall be deemed to constitute a partnership between the parties nor constitute any party the agent of the other party. All persons introduced by the Contractor/Supplier during the performance of the Contract shall be regarded as the Personnel of the Contractor/Supplier alone and all debts, liabilities and obligations of any kind imposed upon or incurred by the Contractor/Supplier in the performance of the Contract shall be the debts, liabilities and obligations of the Contractor/Supplier.
34 ASSIGNMENT, SUB-CONTRACTING, OTHER CONTRACTORS AND SUPPLIERS
34.1 The Contractor/Supplier is under the obligation to execute the Contract itself and shall not assign, sub-contract (including sub-let) all or any part of its rights, liabilities or obligations or all or any of the Work to be provided hereunder without ZEAT’s Approval. ZEAT’s Approval shall not relieve the Contractor/Supplier from any liability or obligation under the Contract and it shall remain fully liable and be responsible for the acts, defaults and neglects of any Sub-Contractor, its agent, servants or workmen as fully as if they were the acts, defaults or neglects of the Contractor/Supplier, its agents, servants or workmen and the Contractor/Supplier shall agree with any Sub-Contractor resp. assignee that the Sub-Contractor resp. assignee shall be bound by and observe the provisions of the Contract and guarantees that the Sub-Contractor resp. assignee will comply with these provisions.
34.2 The Contractor/Supplier shall not change any Sub-Contractor which has been Approved by ZEAT, or materially vary their work scopes, without the Approval of ZEAT.
34.3 The Contractor/Supplier shall be solely responsible for all direct and indirect costs and expenses due to or arising from and/or related to sub-contracting, and also for any and all consequences, including delays.
34.4 The Contractor/Supplier shall protect, indemnify and hold ZEAT harmless against, including but not limited to, any claims, costs, expenses, liabilities, judgments, fines and penalties from Sub-Contractors or any other third parties, arising from and/or related to the execution of the Contract.
34.5 ZEAT may assign, sub-let or pledge the whole or part of its rights, liabilities and obligations under the Contract to a third party upon the same terms and conditions as those agreed upon between the parties hereto without the consent of the Contractor/Supplier.
34.6 The Contractor/Supplier may not enter into a contract with Other Contractors and Suppliers, unless if Approved by ZEAT. Clauses 34.1., 34.2., 34.3., 34.4. and 34.5. shall equally apply to these contracts.
No waiver by either party of any provision of the Contract shall be binding unless made by formal amendment to the Contract. Further, any such waiver shall relate only to such matter, non-compliance or breach as it expressly relates to and shall not apply to any subsequent or other matter, non-compliance or breach.
36 ENTIRE AGREEMENT
36.1 The Contract constitutes the entire agreement between the parties hereto with respect to the Work and supersedes all prior negotiations, representations or agreements related to the Contract, either written or oral, provided that nothing in this clause shall be interpreted so as to exclude any liability in respect of fraudulent conduct.
36.2 No amendments to the Contract shall be effective unless formalized in writing and signed by an authorized person from both of the contracting parties hereto.
If any provision in the Contract and/or Conditions proves to be null and void or otherwise unenforceable in whole or in part, this shall not affect the validity of the remainder of the Contract and/or Conditions. ZEAT and Contractor/Supplier will agree upon a suitable regulation to replace the null and void or otherwise unfeasible provisions that approximates as closely as possible with the intention of them and the result aimed for in a legally effective way.
38 RIGHTS OF THIRD PARTIES
38.1 Third parties are not party to any Contract between ZEAT and the Contractor/Supplier pursuant to an implicit and explicit third-party provision in these conditions or the Contract, unless explicitly agreed otherwise. For this reason, Article 6:254 paragraph 1 of the Dutch Civil Code is not applicable, except for (the acceptance by third parties of) the third-party clause mentioned in clause 22.2 above.
38.2 ZEAT Affiliates shall have the right under the Contract to enforce all the same rights as those conferred on ZEAT by the Contract but their consent to vary or rescind the Contract is not required.
39 DISPUTES RESOLUTION
39.1 If ZEAT and the Contractor/Supplier are unable to resolve a dispute arising out of the Contract then this dispute shall be finally settled in accordance with the rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut) with exclusion of the possibility of binding advice as mentioned in said rules.. The arbitration tribunal shall be composed of three arbitrators. The arbitration tribunal shall decide in accordance with the rules of Dutch law. The place of arbitration shall be Amsterdam. The arbitration procedure shall be conducted in the Dutch language.
39.2 Notwithstanding clause 39.1, ZEAT has the right to bring disputes as referred to in that paragraph before the competent court in Amsterdam.
40 APPLICABLE LAW
40.1 The Conditions, the Enquiry and the Contract, as well as all disputes arising therefrom, are solely governed by the law of the Netherlands.
40.2 Application of the Vienna Sales Convention 1980 (CISG) is explicitly excluded.
41 SURVIVAL OF RIGHTS
Expiry of the Contract or its termination, howsoever brought about, shall not affect or prejudice any terms of, or rights conferred by, the Contract which are either expressly or by implication intended to come into effect or continue in effect after such expiry or termination, including but not limited to clauses 11, 12, 14, 23 and 31.
42 ANTI-BRIBERY AND CORRUPTION
42.1 Contractor agrees and undertakes that in connection with this Agreement, it will comply with all applicable laws, rules, regulations, decrees and/or the relevant jurisdiction of this Agreement relating to anti-bribery and anti-money laundering.
42.2 Contractor represents, warrants and undertakes that in relation to this Agreement, it shall not in relation to this Agreement:
a) pay, offer, or promise to pay or authorise the payment of any monies or the transfer of any financial or other advantage or other things of value to:
(i) a government official or an officer or employee of a government or any department, agency or instrumentality of any government;
(ii) an officer or employee of a public international organisation;
(iii) any person acting in an official capacity for or on behalf of any government or department, agency, or instrumentality of such government or of any public international organisation;
(iv) any political party or official thereof, or any candidate for political office; or
(v) any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities.
b) engage in other acts or transactions, in each case if this is in violation of or inconsistent with the anti-bribery or anti-money laundering legislation of the Netherlands or the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
c) make any payments or given anything of value to officials, officers or employees of the government of the country in which the Commodities originated or any agency, department or instrumentality of such government in connection with the Commodities that are the subject of this Agreement which would be inconsistent with or contravene any of the above-referenced legislation.
42.3 ZEAT may terminate this Agreement forthwith upon written notice to the Contractor at any time, if in its reasonable judgment the Contractor is in breach of any of the above representations, warranties or undertakings.
This clause 42 completes these General Terms and Conditions of Purchase for ZEAT Energy Amsterdam Terminal B.V.