MARTEK CUAS STANDARD TERMS AND CONDITIONS FOR PURCHASE OF GOODS AND/OR SERVICES AND/OR LICENSE FEES
In this document the following words shall have the following meanings:
1.1 “Agreement” means these Terms and Conditions together with the terms of any applicable Purchase Order;
1.2 “Buyer” means Martek CUAS, Phoenix House, 3 South Parade, Leeds, LS1 5QX
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the
1.4 “Purchase Order” means the (standard) Buyer document which includes or is attached to a statement of work describing the goods and/or services and/or license fees to be provided by the Supplier and which provides a maximum value payable by the Buyer to the Supplier.
1.5 “Supplier” means the organisation or person who supplies goods and/or services to the Buyer;
1.6 “Supplier Personnel” means any employee or contractor supplied by the Supplier to provide services.
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and/or services and/or license fees by the Supplier pursuant to one or more Purchase Order.
2.2 Where it is agreed that the Supplier shall supply goods and/or services and/or license fees, the goods and/or services and/or license fees to be supplied, the price payable and any other special terms agreed between the parties shall be set out in the Purchase Order. All Purchase Orders shall be subject to these Terms and Conditions.
2.3 Unless otherwise agreed in writing by Martek CUAS, these Terms and Conditions shall override any terms and conditions stipulated, incorporated, referred to or implied by the Supplier, whether in the contract or in any negotiations, and all Suppliers conditions whether express or implied by statute, common law or otherwise are excluded and hereby negated in so far as it is reasonable to do so. The order shall be accepted by the supplier by a formal
order confirmation, including correct pricing and firm delivery dates. The order confirmation shall be sent by email to the buyer within 24 hours of the order received.
3 PRICE AND PAYMENT
3.1 The price and any taxes and expenses for the goods and/or services and/or license fees shall be as specified in the Purchase Order.
3.2 An invoice shall be produced by the Supplier to the Buyer in accordance with the terms set out in the Purchase Order. The Buyer shall pay for the goods and/or services and/or license fees on 30 day terms unless agreed otherwise in advance. Payment terms will begin from the date of receipt of the invoice not from the date of the invoice.
3.3 The Buyer shall not be responsible for any expenses, charges or prices other than those set out in the Purchase Order.
3.4 Carriage charges if applicable must be agreed in advance by the Buyer otherwise are not payable. The Buyer reserves the right to use their own courier if they deem it to be more appropriate for cost and/or service reasons.
3.5 If the parties agree that the Supplier is to provide goods and/or services and/or license fees or resources in addition to those specified in a Purchase Order, then such agreement will be reflected in a further Purchase Order, which will be deemed incorporated into this Agreement.
3.6 Once a Purchase Order has been accepted by the Buyer the price for the goods and/or services and/or license fees shall be fixed at the prices stated on the purchase order
3.7 The price shall not be subject to adjustment for inflation, currency exchange fluctuation, changes in the cost of labour and materials or taxes and duties or any other adjustment whatsoever.
4.1 The Supplier warrants and guarantees that all goods and materials supplied under this Agreement shall be free from any defects, patent or latent, in material and workmanship, conform to applicable specifications and drawings and, to the extent that detailed designs were not provided to the Buyer, will be free from design defects and in every aspect suitable for the purposes intended by the Buyer, as to which the Supplier hereby acknowledges that it has had due notice. The approval by the Buyer of any designs provided by the Supplier shall not relieve the Supplier of its obligations under any provision contained in this Clause.
4.2 The Supplier’s obligations under this Clause shall extend to any defect or non-conformity arising or manifesting itself within 24 months from delivery, or where The Supplier’s goods and materials form part of a system manufactured by the Buyer to be supplied to a ship, 24 months after the date of ship’s delivery to owner.
For any defects carried over for repair and/or remedy after 24 months from delivery or after the ship’s delivery, the guarantee period shall run for 24 months from the date of the repair and/or remedy of the defects is accomplished. For any post-delivery defects repaired or remedied, the guarantee period shall run for an additional period of 12 months from the date the repair or remedy is accomplished. If any problem occurs due to Seller’s mis-information or lack of information, the seller shall bear the responsibility for buyer’s damage. The
“Product liability Law (PL)” will be applied for the damage due to the defects of equipment.
4.3 Where there is a breach of the warranty contained in this Clause by the Supplier, the Buyer, without thereby waiving any rights or remedies otherwise provided by law and/or elsewhere in this Agreement, may require the Supplier to repair or replace the defective goods at the Supplier’s risk and expense or repay the price or part of the price relating to the defect to the Buyer.
4.4 Items repaired or replaced shall be subject to these Terms and Conditions in the same manner as those originally delivered under this Agreement. If the Supplier refuses or fails promptly to repair or replace items when requested under this provision, the Buyer may itself, or through an agent or sub-contractor, or otherwise, repair or replace any item itself and the Supplier agrees to reimburse the Buyer for any costs or expenses incurred.
4.5 For the avoidance of doubt, the costs, expenses, fees and charges incurred in connection with any replacements and/or repairs, including, without limitation, costs of new parts, transportation, personnel and inspection, testing and certification and/or all costs incurred by the Buyer in arranging for, and having, replacements and/or repairs performed by a third party and/or installation and reinstatement costs incurred by Buyer at its premises or elsewhere shall be paid for by the supplier.
4.6 The supplier shall be liable for indirect or consequential losses suffered by the buyer, including loss or deferment of profit or revenue, loss of business or other specified losses.
5.1 Delivery of the goods shall be made to such location, as the Buyer shall direct. Any time agreed between the parties for such delivery shall be of the essence of the Agreement and the Buyer shall be entitled to cancel, without notice, the whole or any part of this Agreement
if this Clause is not complied with by the Supplier Any delays in shipping and subsequent delivery must be reported immediately to the buyer.
5.2 Time is of the essence applies to contracts meaning failure to act within the time required and in particular hit a delivery date constitutes a material breach of the contract. Any failure to meet a delivery deadline will give the buyer the right to terminate the contract.
5.3 The delivery date shall not be altered without the prior written consent of the Buyer. Should the Supplier propose any alteration to the delivery date they shall immediately notify the buyer stating the reasons for the proposed change.
5.4 The Buyer will only accept part deliveries of an order where agreed in advance. Any additional costs such as carriage associated with a part delivery should be incurred by the supplier unless otherwise agreed by the Buyer.
5.5 Where the Buyer cancels the whole or part of the contract in accordance with Clause 5.1:
5.5.1 all sums payable by the Buyer in relation to the whole or part of the contract cancelled shall cease to become payable;
5.5.2 all sums paid by the Buyer in relation to the whole or part of the contract cancelled shall be repaid by the Supplier immediately;
5.5.3 the Buyer shall be entitled to recover damages from the Supplier for any loss caused as a result of the Supplier’s failure to deliver the goods and/or as a result of the cancellation or delayed delivery of the whole or part of the contract.
6.1 The Supplier warrants that it has good title to the goods and that it will transfer such title as it may have in the goods to the Buyer pursuant to Clause 6.2.
6.2 Title in the goods will pass to the Buyer on delivery to the Buyer.
The goods will be and shall remain at the Supplier’s risk until such time as they are delivered to the Buyer (or at his direction) and are found to be in accordance with the requirements of this Agreement. It shall be the duty of the Supplier at all times to maintain a contract of insurance over the goods and, on request from the Buyer, to assign to the Buyer the benefits of such insurance.
8 INSPECTION OF GOODS
8.1 The Buyer reserves the right to inspect the goods either at time of delivery or within 14 days of receipt.
8.2 Where goods are damaged the Buyer shall notify the Supplier. The Buyer may reject the damaged goods and the following provisions shall apply:
8.2.1the Supplier shall collect the damaged goods from the Buyer at the Supplier’s expense;
8.2.2 during the period between delivery of the goods to the Buyer and collection by the Supplier, the Buyer shall not be liable for any loss or further damage caused to the damaged goods;
8.2.3 all sums payable by the Buyer in relation to the damaged goods shall cease to become payable;
8.2.4 all sums paid by the Buyer in relation to the damaged goods shall be repaid by the Supplier immediately;
8.2.5 the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the goods being damaged.
8.3 Where there are shortages in the order the Buyer shall notify the Supplier and the following provisions shall apply:
8.3.1 all sums payable by the Buyer in relation to the missing goods shall cease to become payable;
8.3.2 all sums paid by the Buyer in relation to the missing goods shall be repaid by the Supplier immediately;
8.3.3 the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the shortages.
8.4 If the Buyer so requests, the Supplier shall immediately replace damaged goods or supply goods which are missing at the Supplier’s expense or the Buyer shall be entitled to cancel, without notice, the whole or any unexecuted part of the order and the rights referred to in Clause 5.2 shall apply.
8.5 Where there is an excess of goods in relation to the order the Buyer may reject the excess goods by notice in writing to the Supplier and the following provisions shall apply:
8.5.1 The Supplier shall collect the excess goods from the Buyer at the Supplier’s expense;
8.5.2 During the period between delivery of the goods and collection by the Supplier, the Buyer shall not be liable for any loss or damage caused to the excess goods;
8.5.3 No sum shall be due to the Supplier for the excess goods and in the event that sums are paid to the Supplier for the excess goods, the Supplier shall repay such sums to the Buyer immediately.
8.6 The Buyer may accept excess goods by notifying the Supplier of such acceptance and the price of the excess goods shall be payable by the Buyer.
8.7 The Supplier shall repair or replace free of charge, goods damaged or lost in transit upon receiving notice to that effect from the Buyer.
8.8 The Buyer’s signature on any delivery note of the Supplier is evidence of the number of packages received only and not evidence of the correct quantity of goods received or that the goods are in a good condition or of the correct quality.
9 SUPPLIER’S OBLIGATIONS
9.1 The Supplier warrants, represents and undertakes that:
9.1.1All services performed under this Agreement shall be performed with all due skill and care, in a good and workmanlike manner and otherwise in line with best practice within its industry (“Best Industry Practice”);
9.1.2 The Supplier Personnel will possess the qualifications, professional competence and experience to carry out such services in accordance with Best Industry Practice;
9.1.3 the services will not in any way infringe or violate any Intellectual Property Rights, trade secrets or rights in proprietary information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of any third parties; and
9.1.4 It has full capacity and authority to enter into this Agreement and that it has or will obtain prior to the commencement of the services, any necessary licences, consents and permits required of it for the performance of the services.
9.2 The Supplier shall provide the Buyer with such progress reports, evidence or other information concerning the services as may be requested by the Buyer from time to time
9.3 The Supplier shall be responsible for maintaining such insurance policies in connection with the provision of the services as may be appropriate or as the Buyer may require from time to time.
9.4 The Supplier shall procure that the Supplier Personnel take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions, and the Supplier agrees to indemnify and keep indemnified the Buyer from all and any liabilities, obligations, costs and expenses whatsoever arising from any loss, damage or injury caused to the Buyer or any third party by the Supplier Personnel.
10 STATUS AND LIABILITIES
10.1 It is expressly understood that neither the Supplier nor the Supplier Personnel have the authority to act as agent for the Buyer or to contract on the Buyer’s behalf.
10.2 The Supplier Personnel shall at no time be deemed to be employed or otherwise engaged by the Buyer.
10.3 The Supplier shall be responsible for paying the Supplier Personnel and for making any deductions required by law in respect of income tax and National Insurance contributions or similar contributions relating to the provision of the services. The Supplier agrees to indemnify the Buyer in respect of any claims that may be made by the relevant authorities against the Buyer in respect of tax demands or National Insurance or similar contributions relating to the provision of the services by the Supplier.
10.4 The Supplier shall, and shall procure that the Supplier Personnel shall, comply with all applicable statutes; rules and regulations in providing the services, including all immigration and employment requirements imposed by any applicable jurisdiction, and the Supplier shall indemnify and hold harmless the Buyer from damages arising out of any failure to do so.
10.5 M.A.D.S or any equivalent are capable of being put to various uses and in certain jurisdictions certain of those uses and/or application may be limited by law. It shall be the responsibility of the Buyer to satisfy his or herself as to the applicable laws in their country or residence and/or the country where the product is intended to be operated. The Supplier takes no responsibility for any unlawful use. Any advertising or similar is generic in nature and is intended to highlight the diverse use to which the product might be deployed. It is not intended to offer any guidance or view on whether such use is lawful within the jurisdiction in which such advertising takes place. Buyer acknowledges and agrees that the Martek CUAS system(s) is/are innovative products subject to on-going further development. Martek CUAS accepts no liability for any damage suffered by Buyer as a result of missing or incorrect data from the Martek CUAS system(s)
11.1 The Buyer may terminate this Agreement for any reason by providing prior written notice to the Supplier.
11.2 The Buyer may terminate this Agreement with immediate effect by providing written notice to the Supplier if:
11.2.1 The Supplier or the Supplier Personnel commit any material or persistent breach of this Agreement;
11.2.2 The Supplier fails to or refuses after written warning to procure that the Supplier Personnel provide the services properly required of them in accordance with this Agreement;
11.2.3 The Supplier passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
11.2.4 The Supplier ceases to carry on its business or substantially the whole of its business; or
11.2.4 The Supplier is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
The Supplier agrees to indemnify the Buyer against all claims, costs and expenses which the buyer may incur and which arise, directly or indirectly, from the Supplier’s breach of any of its obligations under this Agreement.
13 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Buyer, and the Supplier shall do all that is reasonably necessary to ensure that such rights vest in the Buyer by the execution of appropriate instruments or the making of agreements with third parties.
During the period of this agreement and for one year thereafter, The Supplier shall not cause, solicit, induce, or encourage any employees, consultants, or contractors of the Buyer or its affiliates to leave such employment or service, or develop a business relationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a client, customer, supplier, or licensor of any business in which The Supplier is engaged that is competitive with the Buyers Business.
The Supplier agrees that it shall not disclose to any third party any information, documentation, data (including pricing) or know-how discussed to it by the Buyer unless prior written consent has been provided.
This clause shall survive the termination and/or completion of this contract for a period of ten (10) years.
16. FORCE MAJEURE
The Buyer shall not be liable for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, flood, bird flu’ pandemic or industrial disputes, and the Buyer shall be entitled to a reasonable extension of its obligations.
17. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.
The Supplier shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Buyer.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
No failure by the Buyer to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Purchase Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.
1. MARTEK CUAS STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS AND/OR SERVICES AND/OR LICENSE FEES
1.1 These general conditions shall without reservation apply to all contracts entered into between Martek CUAS (thereafter referred to as the Vendor) and any other party (thereafter referred to as the Buyer) except where modified in specific terms and agreed in writing between the parties.
1.2 Unless otherwise agreed in writing by Martek CUAS, these Terms and Conditions shall override any terms and conditions stipulated, incorporated, referred to or implied by the Buyer, whether in the contract or in any negotiations, and all guarantees, warranties or conditions (including any conditions as to quality or fitness for any purpose) whether express or implied by statute, common law or otherwise are excluded and hereby negated in so far as it is reasonable to do so.
2. TERMS OF DELIVERY
2.1 Unless otherwise agreed the Goods shall be deemed to be sold Ex-works. The time at which the risk shall pass will be fixed in accordance with the International rules of the Interpretation of Trade Terms (Incoterms) of the International Chamber of Commerce in force at the date of the formation of the Contract.
2.2 In the event that goods are delivered to the nominated site of the Buyer for assembly, installation and commissioning whilst the Vendor is engaged as a subcontractor, risk shall pass together with title upon completion and acceptance of same by Buyer and the payment of all outstanding amounts due to the Vendor in respect of any or all of the Goods supplied under the said contract.
3.1 Unless otherwise agreed, the delivery period shall run from the latest of the following dates:
a.) the date of the formation of the Contract
b.) the date on which the Vendor receives notice of the issue of a valid license where such is necessary for the execution of the Contract.
c.) the date of the receipt by the Vendor of such payment in advance of manufacture as is stipulated in the Contract.
3.2 Martek CUAS will use its best endeavours to complete its contractual obligations within the period (if any) stated in the contract or in a reasonable time but shall be under no liability for any loss, damage or claim whatsoever caused by or consequential upon any delay from any cause whatsoever & however arising. In no circumstances shall delay be a ground for cancellation of the contract by the Buyer.
3.3 Should delay in delivery be caused by any of the circumstances mentioned in Clause 6 or by an act or omission of the Buyer and whether such cause occurs before or after the time or extended for delivery, there shall be granted subject to the provision of paragraph 4 hereof such extension of the delivery period as is reasonable having regard to all the circumstances of the case.
3.4 If the Buyer fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the Goods had been delivered. The Vendor shall arrange for the storage of the Goods at the risk and cost of the Buyer. The Vendor shall be entitled to a payment from the Buyer of 1% of the total contract value per month or part thereof after the agreed despatch date has passed. Provided that if the delay in accepting delivery is due to one of the circumstances mentioned in Clause 6 and the Vendor is in a position to store it in his premises without prejudice to his business, the cost of storing the Goods shall not be borne by the Buyer.
3.5 Unless the failure of the Buyer is due to any of the circumstances mentioned in Clause 6 the Vendor may require the Buyer by notice in writing to accept delivery within a reasonable time. If the Buyer fails for any reason whatever to do so within such time the Vendor shall be
entitled by notice in writing to the Buyer, and without requiring the consent of any Court, to terminate the Contract in respect of such portion of the Goods as is by reason of the failure of the Buyer aforesaid not delivered and thereupon to recover from the Buyer any loss suffered by reason of such failure up to an amount not exceeding the price attributable to that portion of the Goods which the Buyer has failed to accept delivery of.
3.6 Vendor shall never be responsible for importation in or to Buyer’s country or the location of the Site, or any import charges, duties, taxes or customs related hereto.
4.1 Payment shall be made in the manner and at the time or times agreed by the parties but in the absence of such agreement payment will be due Nett Cash 30 days from date Invoice and shall be in Pounds Sterling unless otherwise agreed.
4.2 If delivery has been made before payment of the whole sum payable under the Contract, the Goods delivered shall, to the extent permitted by the law of the country where the Goods are situated after the delivery, remain the property of the Vendor until such payment has been effected. If such law does not permit the Vendor to remain the property in the Goods, the Vendor shall be entitled to the benefit of such other rights in respect thereof as such law permits him to remain. The Buyer shall give the Vendor every assistance in taking any measures required to protect the Vendor’s right of property or such other rights as aforesaid.
4.3 If the Buyer delays in making any payment the Vendor may postpone the fulfilment of his own obligations until such payment is made, unless the failure of the Buyer is due to an act or omission of the Vendor.
4.4 If delay by the buyer in making any payment is due to one of the circumstances mentioned in Clause 6 the Vendor shall not be entitled to any interest on the sum due. Save
as aforesaid, if the Buyer delays in making any payment the vendor shall be entitled to the payment of interest on the sum due at a rate of 8% above the Bank of England base rate. If at the end of 3 months* the buyer shall still have failed to pay the sum due, the vendor shall be entitled by notice in writing to the Buyer and without requiring the consent of any Court to terminate the contract the thereupon to recover from the buyer the amount of his loss.
* EU maximum 60day
4.5 Vendor shall without liability be entitled to stop or suspend its performance until correct payment is received in full.
4.6 Work beyond the scope of the Contract shall be performed according to the Vendor’s standard service rates.
4.7 Buyer shall ensure that Vendor receives the Contract Price in full without deductions of any kind such as withholding tax or the like.
4.8 Debt Recovery Compensation Charges: see directive Late Payment of Commercial Debts Regulations 2013.
4.9 Interest Rates: see directive of the Late Payment of Commercial (Interest) Act 1998.
5. RENTAL AGREEMENTS
5.1 Term of Agreement is 3-years from the date of delivery unless otherwise agreed. 5.2 A deposit of 10% of the total contract value is payable at point of order with the first advance rental premium due before delivery of equipment.
5.3 The deposit is refundable once equipment is returned and assessed as being complete and in working order. In the event of loss of or damage to the equipment, repair/replacement will be charged at Martek CUAS list price.
5.4 In the event of faulty equipment due to manufacturing issue’s Martek CUAS will HOT swap the equipment. If fault is found to be due to miss use or damage replacement or repair will be charged at Martek CUAS list price.
5.5 The Rental Agreement will automatically renew for an equivalent 3-year period unless written notice of cancelation is received within 90 days of the expiry of the initial term.
5.6 In the event of early termination written notification must be received 90 days in advance and 50% of the remaining rental fees for the duration of the contract shall be immediately payable.
5.7 At termination all equipment must be returned to Martek CUAS within 30 days in working order. Any equipment not in working order or not returned within 30 days will be invoiced at Martek CUAS list price and/or deducted from the deposit.
5.8 In the event of the vessel changing ownership/management 30 days’ notice of sale must be provided. Upon change of vessel ownership new owners can –
a) take over existing subscription and deposits and payments will be transferred to new owner. Deposit refunded 30 days after receipt of new deposit from new owner.
b) the equipment can be purchased at Martek list price less the deposit paid.
c) return the equipment to Martek CUAS at which point an early termination fee will be
payable as per schedule above and deposit is refunded.
5.9 During the course of the agreement Title to the goods remains with Martek CUAS and liability and Risk with the Renter.
6. RETENTION OF TITLE TO GOODS
Notwithstanding the provisions of Clause 4, all contracts will be entered into subject to the following conditions relating to retention of title to the Goods supplied.
6.1 The Vendor reserves the title to any or all of the Goods contained in any contract and wherever stored whether or not the said Goods have been re-sold until such time as all outstanding amounts due to the Vendor in respect of the Goods supplied have been received.
6.2 The Buyer of any or all of the Goods contained in any contract shall be deemed to be acting as a bailee of the Goods and shall undertake to indemnify the Vendor against loss or damage whilst in his possession and shall store all the Goods there mentioned in good condition until such time as payment is made in full for the Goods at which time title in the Goods shall pass.
6.3 The Buyer is deemed to occupy a fiduciary position and shall not without the specific agreement of the Vendor pass, attempt to pass or conspire to pass title in any or all of the
Goods continued in any contract until title has been ascertained under Clauses 2.2, 5.1 and 5.2. In the event that specific agreement is attained the Buyer shall occupy a fiduciary position in respect of the proceeds of any such sale and shall agree to fully indemnify the Vendor against any consequential loss suffered as result.
6.4 Any or all Goods contained in any contract shall not at any time save with the specific agreement of the Vendor be defaced, modified or in any other way changed to the extent that it will at all times be possible to identify the Goods referred to above over which the Vendor reserves title.
6.5 The Vendor shall at all times during retention f title reserve the right to claim the re- delivery of all or any Goods in any contract at any time prior to the title to the Goods being ascertained in the event that the buyer due to insolvency or any other reason not the fault of the Vendor has failed to make full payment for the Goods contained in the said contract.
7.1 The Buyer shall have an obligation to carry out proper examination of the Work upon receipt and shall notify Vendor in writing of any defect or non-compliance found including a detailed description thereof without undue delay after its appearance and under no circumstances later than two (2) weeks. If the Buyer fails to notify Vendor accordingly, Vendor shall have no responsibility to remedy the defect and shall have no liability to the Buyer in relation to such defect.
7.2 Subject as hereinafter set out, the Vendor undertakes to remedy any defect resulting from faulty design, materials or workmanship on a ‘return-to-base’ basis. Warranty work shall be performed according to the following allocation of costs and expenses related to the
– Warranty work (time spent) including replacement or remedy of defective supplies, or re- performance of defective services, in whole or in part, shall be at the account of Vendor.
– Travel, board and lodging, waiting time caused by the Buyer, together with other costs and expenses, shall be at the account of the Buyer.
7.3 With regard to the circumstances, Vendor decides at its sole discretion, in consultation with the Buyer, how and where to remedy a warranty defect. If VENDOR decides that the defective parts thereof shall be returned to Vendor, or other venue, then transportation from the Buyer shall be for the Buyer’s cost and risk, and the return transportation to the Buyer shall be for VENDOR’s cost and, in each case according to the trade term Delivered Duty Unpaid (DDU) (named place of destination of recipient) INCOTERMS 2000.
7.4 To the extent necessary to remedy the defect, the Buyer shall at its own expense arrange for dismantling and reassembly of equipment other than the Work. Defective parts that have been replaced shall be returned to Vendor at Buyer’s cost and shall become the property of Vendor. If the Buyer has notified Vendor of a defect, and no defect is found for which Vendor is liable, Vendor shall be entitled to compensation for the costs it incurs and time spent as a result of the notice.
7.5 If Vendor does not initiate and diligently pursue its obligations under this Clause 6 within a reasonable time, the Buyer may, by notice in writing, specify a final time for performance of such obligations. The notice shall be given at least four (4) weeks before such final time.
7.6 This liability is limited to defects that appear during the period of 12 months after the date
of delivery. The guarantee on electro-chemical/catalytic/semi-conductor gas sensors is limited to a period of 3 months or the balance of the manufacturer’s warranty whichever is the greater and is subject to special criteria regarding their handling operation and maintenance.
7.7 A fresh guarantee period of 12 months shall apply, under the same terms and conditions as those applicable to the original Goods to parts supplied in replacement of defective parts or to parts renewed in pursuance of the Clause. The provision shall not apply to the remaining parts of the Goods, the Guarantee Period of which shall be extended only by a period equal to the period during which the Goods are out of action as a result of a defect covered by this Clause. Notwithstanding the stipulations of this Clause, the validity of the Vendor’s Guarantee shall not exceed 2 years for any part of the Goods reckoned from the original date of commencement of the Guarantee Period.
7.8 Vendor shall have no liability for defects caused by design, material or processes prescribed by the Buyer. The Vendor’s liability shall apply only to defects that appeared under the conditions of operation provided for by the Contract and under proper use. the warranty does not cover defects caused by misuse, normal wear and tear, including without limitation, consumables or services and supplies with a regular operating life time not exceeding the warranty period, improper or unexpected storage or working conditions, improper maintenance, commissioning or repair by the Buyer or third parties, or alterations carried out on the Work without Vendor’s prior approval in writing. Nor does the warranty cover defects caused by accidents or damages incurred in war, armed conflict, terrorist activity, or insurrection.
7.9 Except as specifically stated otherwise in this Clause 9, Vendor shall not be liable for and hereby disclaims all other warranties, express or implied, including warranties of fitness for purpose and merchantability.
8.SECURITY AND PRODUCT LIABILITY
8.1 If not otherwise stated, the delivery comprises such equipment for protection against the risk of danger or for compliance with legislation in the use of the Goods as are normally in use in the Vendor’s country. Any responsibility that may arise on account of other protective or compliance equipment being prescribed in the Buyers country is exclusively carried by the Buyer.
8.2 The Vendor shall be liable for personal injury only if it is proved that such injury was caused by negligence on the part of the Vendor or others for whom he is responsible. The Vendor shall not be liable for damage to property occurring whilst the Goods are in the possession of the Buyer. Nor shall the Vendor be liable for damage to products manufactured by the Buyer, or to other products of which the Buyers products form a part. Apart from these limitations the Vendor shall be liable for damage to property on the same conditions as for personal injury. The Vendor shall in no circumstances be liable for loss of production, loss of profit or any other consequential damage and indirect loss. To the extent the Vendor might incur product liability toward any third party, the Buyer shall indemnify the Vendor as far as the Vendor’s liability has been limited by the three proceeding sub- paragraphs. If a claim for damage as described in this clause 7.2 is lodged by a third party against one of the parties, the latter shall party forthwith inform the other party thereof.
8.3 The Vendor and the Buyer shall be mutually obliged to let themselves be summoned to the Court examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Goods. The contractual relationship between the Vendor and the Buyer shall, however, be settled by arbitration according to Clause 10. The above limitations
in the Vendor’s liability shall not apply where the Vendor is shown to have been guilty of gross misconduct.
8.4 For iECDIS products, the Jeppeson SDK/Kernel & electronic chart database is provided under licence from Jeppeson Norway AS. The Buyer must not reproduce, copy, amend, alter, modify, translate, decompile or reverse engineer the SDK or CM-93/3 Database provided within the iECDIS system. Martek will have no liability for losses arising from the use, or inability to use, the SDK/Kernel & electronic chart database, nor if the system is used to read data in any other format than that provided through the iChartsubscription.
9.1 The following shall be considered as cases of relief if they intervene after the formation of any Contract and impede its performance, industrial disputes and any other circumstances (e.g. fire, mobilisation, requisition embargo, currency restrictions, insurrection, shortage of transport, general shortage of materials and restrictions in use of power) when such other circumstances are beyond the control of the parties.
9.2 The party wishing to claim relief by reason of any of the said circumstances shall notify the other party in writing without delay on the intervention and on the cessation thereof.
9.3 The effects of the said circumstances so far as they are affect the timely performance of their obligations by the parties are defined in Clauses 3 and 4. Save as provided in paragraph 3.4, 3.6 an 4.4, if by reason of any of the said circumstances the performance of
the Contract within a reasonable time becomes impossible either party shall be entitled to terminate the Contract by notice in writing to the other party without requiring the consent of any Court.
10. LIMITATION OF LIABILITY
10.1 Neither Vendor nor the Buyer shall be liable to the other (except by way of indemnity) for any loss of profit, loss of use, loss of production, loss of contracts, attorney’s fees or for any indirect, consequential or special damages whatsoever that may be suffered by the other.
10.2 The total aggregate liability of either party on any claim, whether in contract, tort (including negligence), or otherwise (except by way of indemnity) or for any one act, omission, defect, default or delay arising from or related to the Contract shall never exceed the Contract Price.
10.3 The Buyer and Vendor acknowledge that their respective rights, obligations and liabilities as provided for in the Contract shall be exclusively specified herein and thus exhaustive of the remedies, rights, obligations and liabilities that may arise in respect or in consequence of a breach of contract or of statutory duty or a tortious or negligent act or omission at statutory and/or common law or equity.
10.4 M.A.D.S or any equivalent are capable of being put to various uses and in certain jurisdictions certain of those uses and/or application may be limited by law. It shall be the responsibility of the Buyer or Vendor to satisfy his or herself as to the applicable laws in their country or residence and/or the country where the product is intended to be operated. The Supplier takes no responsibility for any unlawful use. Any advertising or similar is generic in nature and is intended to highlight the diverse use to which the product might be deployed. It is not intended to offer any guidance or view on whether such use is lawful within the jurisdiction in which such advertising takes place.
11. RIGHTS AT TERMINATION
11.1 Termination of the Contract, from whatever cause arising, shall be without prejudice to
the rights of the parties accrued under the Contract up to the time of termination.
12. ARBITRATION AND LAW APPLICABLE
12.1 Any dispute arising out of the Contract shall be finally settled, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by one or more arbitrators designated in conformity with those Rules.
12.2 The Contract shall be governed by law of the Vendor’s country and all disputes shall be dealt with in the jurisdiction of England & Wales.
13. RETURN OF GOODS ORIGINALLY SHIPPED AGAINST SALES ORDER CONTRACT
13.1 In all circumstances the Vendor reserve the right to refuse the return of goods which were originally shipped to any Buyer against an agreed Sales Order Contract.
13.2 Any goods returned to the Vendor which were originally shipped against a Sales Order Contract will incur a 25% handling charge to the Buyer if the reason for return is deemed to be outside the control of the Vendor (i.e. wrong product ordered by the Buyer). The charge incurred will be 25% of the original value for the goods returned. Under all circumstances a minimum charge of £1000 will be imposed.
14. CANCELLATION OF CONTRACT
In the event of the Buyer purporting to cancel an order Vendor if it wishes to accept such cancellation shall be entitled to charge the Buyer a cancellation fee of up to twenty five per cent (25%) of the purchase price for stock items, or up to 100% of the purchase price for a bespoke system, in respect of costs and expenses incurred and other damages without prejudice to any right to claim further costs, expenses and damages howsoever arising.
If any goods to be supplied by the Vendor are to be in accordance with the Buyer’s specifications or instructions the Buyer will indemnify the Vendor against all damages, penalties, costs and expenses to which Martek CUAS Limited may become liable or which the Vendor may incur through complying with any such specifications or instructions, involving an infringement of Patent, Registered Design, or Trade Mark.
16.1 The Buyer may in writing request variations to the Work or Time for Performance.
16.2 Vendor shall have no obligation to carry out requested variations until agreement in writing is concluded by means of Order Confirmation or otherwise on the adjustments to the Work, Contract Price, or other terms of the Contract.
16.3 The supplied Work will be in accordance with Vendor’s standard classification and certification applicable to the Work. Any upgrading of the classification or certification not communicated to the Vendor in writing prior to Order Confirmation shall be regarded as a request for variation.
17. BUYER’S OBLIGATIONS
17.1 The Buyer shall at own cost and risk provide such supplies, services, documentation, information, access to the Site, permits, licenses, transportation to and from offshore installations and such other things which is required or necessary in due time and otherwise within reasonable time so as not to delay Vendor’s performance of the Work.
17.2 The Buyer shall be solely responsible and bear all risk in connection with the accuracy and completeness of all supplies, services, documentation, information and other work provided by the Buyer or its subcontractors, and Vendor is not responsible to control or correct such work, and for any consequences that may occur as a result of default or errors therein.
17.3 If the Buyer fails to meet his obligations (preparation for delivery, payment, etc.) or the Buyer otherwise delays delivery by request for variations, etc., then the Vendor is entitled to adjust the Time for Performance and Contract Price resulting here from.
17.4 The Buyer shall compensate Vendor for (i) costs and extra work resulting from the delay, (ii) additional costs for storage, (iii) additional costs for travel, board and lodging for Vendor’s personnel, (iv) additional financing costs and costs of insurance, and (v) other documented costs incurred by Vendor as a result of the Buyer’s default.
18. WORKING CONDITIONS
18.1 If Vendor’s personnel are required to visit the Site, then the Buyer shall ensure that appropriate standards of health and safety and for working conditions are followed at the Site.
18.2 The Buyer shall properly inform Vendor of all relevant safety regulations in force at the Site; and ensure compliance with all applicable health and safety laws and regulations. Vendor’s personnel shall be entitled to refuse to perform the Work if the working conditions at the Site are deemed unsafe or dangerous according to standard industry practice in Western Europe. Vendor will not be liable for any damages caused by the performance of the Services unless caused by gross negligence or wilful misconduct.
18.3 The Buyer shall ensure that Vendor’s personnel shall be able to obtain suitable and convenient board and lodging.