Terms and Conditions of Engagement
The following Standard Terms and Conditions shall apply for all work where the client forms a contract with Offshore Wind Consultants Taiwan Co., Ltd. (hereinafter referred to as “OWC”) .
In these Conditions, unless the context otherwise requires:
“Agreement” shall have the meaning given to it in Clause 2.1.
“Company” means the person or business association entering into an Agreement with OWC under which OWC agrees to provide the Services.
“Conditions” means the terms and conditions of business set out in this document and any special terms and conditions agreed in writing by OWC and the Company.
“Confidential Information” shall have the meaning given to it in Clause 12.1.
“Force Majeure” shall have the meaning given to it in Clause 10.1.
“Price” means the price paid by the Company to OWC for the Services provided in accordance with Clause 9.
“Proposal”, “Tender” or “PO” means a specific written offer orpurchase orderto perform the Services in accordance with the terms of these Conditions. The offer shall include, as a minimum, a scope of work, schedule and cost for performance of the Services.
“Order Acknowledgement Form” means the form issued by OWC to the Company at the commencement of the Services.
“Services” means the provision of work and services to be performed by OWC in accordance with the terms of the Agreement and these Conditions, as more particularly set out in the Agreement.
1.2 The headings of Clauses within these Conditions are included for the purpose of information and ease of reference only and shall not be construed as limiting or extending the meaning of any of the provisions contained in the said Clauses.
2. Application of Conditions and Formation of Agreement
2.1 Save as otherwise agreed by OWC and the Company in writing, these Conditions alone shall apply to and be incorporated into any agreement for the provision of Services by OWC to the Company (hereinafter referred to as the “Agreement”) to the exclusion of all other terms and conditions which the Company may purport to apply under any purchase order or similar document or which could be implied by trade custom, practice or course of dealing. For the avoidance of doubt, the Agreement shall comprise each of the following documents (where applicable):
(i) these Conditions;
(ii) the Proposal, Tender or PO;
(iii) the Order Acknowledgement Form; and
(iv) any Cost Time Resource Sheets(as defined below).
2.2 Any order for Services shall be deemed to be an offer by the Company to purchase such Services pursuant to these Conditions and all such orders (whether or not based on a previous Proposal, Tender or PO) are subject to acceptance by OWC. Accordingly, no binding contract shall be created until:
(A) notice of the acceptance of the order has been given by OWC; or
(B) (if earlier) the Services are performed for the benefit of, the Company;
and OWC reserves its right to withdraw or revise a Proposal, Tender or PO, or to refuse to accept any order on any grounds whatsoever at any time prior to the events listed in sub-clauses (A) and (B) above.
2.3 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by OWC. Once an Agreement exists between the Company and OWC it cannot be amended by the Company except with OWC’s prior written consent and, if required by OWC, upon terms which will indemnify OWC against all loss suffered by OWC as a result of such variation.
2.4 No particulars, statements or descriptions, whether contained in any advertising matter, catalogues, brochures, price lists or otherwise provided by the Company concerning the Services, nor any verbal representations by any agent, employee or representative of OWC, unless contained in the documents defined in Clause 2.1, shall form part of the Agreement or be treated as constituting a representation on the part of OWC.
3. Scope of Work
3.1 These Conditions apply to the agreed Scope of Work and any variation thereto agreed in writing by the parties.
3.2 OWC may at any time notify the Company of changes to the Services which are necessary to comply with any applicable law, government order, or similar requirement.
3.3 The Company will at its own expense supply OWC with all necessary information in sufficient time to complete the Service and be responsible for and ensure the accuracy of all information supplied by the Company.
4. Term of Agreement
Unless otherwise specified in the Agreement, the Agreement shall be effective from the date of issuance of the Order Acknowledgement Form and shall continue until such time as the Services are completed.
5. Conduct and Management of the Services
5.1 OWC will perform the Services with all reasonable skill, care and diligence in conforming with the normal professional standards for the type of Services performed. OWC shall ensure that all personnel provided to perform the Services are duly qualified and experienced in their required capacities.
5.2 OWC shall provide adequate supervision of the Services and shall assign thereto a competent project manager with authority to act for OWC, who shall continuously supervise the Services so as to ensure prompt and efficient completion of the Services. OWC shall ensure that all personnel provided to perform the Services shall comply with the Company’s rules and regulations in so far as they are brought to OWC’s attention and are applicable to the provision of the Services.
5.3 OWC shall give all necessary orders and directions in connection with the Services provided always that OWC shall observe any instructions of the Company concerning safety and security.
5.4 The Company understands that any times and dates quoted for completion or performance of the Services are estimates only and agrees that time for completion or performance shall not be of the essencenor the cause of the liabilities of OWC.
6.1 OWC will perform the Services for the prices and rates stated within its Proposal, Tender or PO, or in accordance with any cost time resource sheets which are submitted by OWC to the Company and subsequently approved in writing by the Company (hereinafter referred to as “Cost Time Resource Sheets” or “CTR Sheets”.)
6.2 Unless a fixed price is stated in the Agreement, the price payable for the Services will be calculated based on time spent by OWC personnel at the prevailing charge out rates as set out in the Agreement. These charge out rates are subject to annual review and any amendment by OWC shall be effective from 1 January each year.
6.3 The price payable for the Services is exclusive of any applicable Value Added Tax, Withholding Tax, and of any other duty tariff or charge arising in Taiwan, the United Kingdom, or elsewhere (in respect of which the applicable taxation and tariff legislation imposes liability on the party requesting Services), which shall be charged at the prevailing rate at the date of the raising of any invoice.
6.4 Where delivery is to take place outside the United Kingdom, the price payable will be exclusive of any import duties or local taxes or other local charges or sums payable on account of any local currency control restrictions which may be in force from time to time. In the event that the Company is prohibited from making the payment of such sums by the laws of the country in which the Services are to be delivered, the Company agrees to pay to OWC such additional monies as are required to cover such items as identified in this Clause in addition to the price payable for the Services.
7. Invoicing and Payment
7.1 Unless otherwise set out in the Agreement, OWC shall submit invoices monthly to the Company for Services provided.
7.2 The Company shall make all payments under the Agreement in US Dollar within fourteen (14) days of the date of issue of an invoice from OWC. Time of payment is of the essence.
7.3 If the Company disputes any item invoiced, the Company shall within seven (7) days of the date of the invoice notify OWC of the item disputed, specifying the reason therefor. The portion of the invoice not in dispute will be settled by the Company within fourteen (14) days of the date of the invoice. Both parties shall endeavour to resolve the disputed items promptly and amicably.
7.4 If any approved amount of the invoiced amount remains unpaid after 14 days OWC shall be entitled to charge interest (before and after any judgement) at the rate of 5% per annum until the date the actual payment is received by OWC.
7.5 OWC reserves the right to suspend the performance of the Services to the Company where any approved amounts are overdue under any Agreement with the Company until all such amounts have been paid.
8. Indemnities and Liabilities
8.1 OWC shall indemnify the Company against any claim concerning personal injury to, or loss of life of, an employee, representative, servant or sub-contractor of OWC and loss of, or damage to, any property of OWC, its employees, representatives, servants or sub-contractors, arising out of or in connection with the undertaking of the Services, except (i) where the Services involve offshore working on the Company’s behalf or working or travelling on any seagoing vessel, aircraft or helicopter owned, chartered or operated by the Company and/or its contractors or their sub-contractors or (ii) where such injury or loss, as appropriate, is caused, in part or in whole, by the Company’s negligence or the wilful misconduct of the Company’s employees, representatives, servants or sub-contractors.
8.2 The Company shall indemnify OWC against any claim concerning personal injury to, or loss of life of, an employee, representative, servant or sub-contractor of the Company and loss of, or damage to, any property of the Company, its employees, representatives, servants or sub-contractors, arising out of or in connection with the undertaking of the Services, except where such injury or loss, as appropriate, is caused by OWC’s gross negligence or the wilful misconduct of OWC’s employees, representatives, servants or sub-contractors.
8.3 To the extent permitted by law, OWC excludes any liability arising out of or in connection with the performance of the Services. OWC shall not be liable under any circumstances for any indirect or consequential loss including, but not limited to, loss of profits or loss of other contracts.
8.4 The total limit of liability of OWC for any loss or damage arising out of or from the performance of the Services (including in respect of the indemnity in Clause 8.1) shall for all purposes whatsoever be limited to the total sum payable by the Company to OWC for Services provided under the Agreement.
OWC shall maintain employer’s liability insurance to a minimum value of £10,000,000 (any one incident) and public liability insurance to a minimum value of £5,000,000 (any one incident). OWC shall also maintain professional indemnity insurance with a maximum aggregate value of £2,000,000 in respect of each Agreement.
10. Force Majeure
10.1 If provision of any or all of the Services is prevented or delayed by an event which is beyond the reasonable control of the party concerned including, but not limited to, acts or restraints of government, war, riots, industrial disputes, fire, accident, inclement weather, rough sea state, breakdown of plant or machinery, power outage, embargo or act of God (“Force Majeure”), OWC shall be entitled to cancel or suspend the provision of the Services without prejudice to its rights to payment for any Services already provided to the Company.
10.2 Neither the Company nor OWC shall be liable to the other for any breach, loss or damage whatsoever caused by an event of Force Majeure.
10.3 OWC may terminate an Agreement with the Company if an event of Force Majeure exists which adversely affects the Agreement, or such event of Force Majeure continues for a period of 3 months.
11. Intellectual Property
11.1 Subject to the terms of the Agreement,by virtue of the Agreement and full payment by the Company for the Services provided by OWC, all rights in the results of the Services carried out by or on behalf of OWC for the purposes of the Agreement, including inventions, designs or copyright in any reports or test results or other copyright work, shall vest in and be the property of the Companywhich shall reserve the sole right to determine whether any patent or similar protection shall be applied for or whether the results of the Services shall be published. OWC shall ensure that, where necessary, it secures the rights necessary to effect such vesting.
11.2 OWC shall, when requested by and solely at the expense of the Company, use reasonable endeavours to do all things necessary to enable the Company to obtain patent or similar protection as may be required by the Company.
11.3 OWC shall grant the Company, or any third party or parties nominated by the Company, a non-exclusive licence on fair and reasonable terms in respect of any technical information (including but not limited to inventions, designs and drawings whether or not patented or patentable) owned or controlled by OWC necessary to enable the Company, or the said third party or parties, to use and exercise, and to manufacture, use and sell articles embodying, any of the information generated by the Services. The grant of such a licence shall be to the extent that OWC has the right to do so.
11.4 The copyright and other intellectual property rights in all drawings, reports, calculations and other documents provided by OWC pursuant to or in connection with the Agreement shall remain vested in OWC until such time as all sums due to OWC have been fully paid, at which time copyright and other intellectual property rights shall then become vested in the Company. OWC shall have a non-exclusive licence to use the same, subject always to the provisions of the Agreement.
12.1 All information supplied by either the Company or OWC to the other party in connection with the provision of the Services in whatever form (“Confidential Information”) shall be treated as confidential and shall not be disclosed or used otherwise than for the purpose of performing their obligations under the Agreement save that either the Company or OWC may disclose such Confidential Information to employees of OWC who need to know the same for the purpose of providing the Services or to any government department or other authority court or arbitrator having statutory authority or jurisdiction to require the disclosure of that Confidential Information or (in the case of the Company) if required to make disclosure pursuant to the terms of any agreement entered into with a third party for the purpose of the project for which the Services are being procured.
12.2 The confidentiality obligations in Clause 12.1shall not apply to the extent that the Confidential Information: (i) is in or comes into the public domain otherwise than through a breach of the Agreement; or (ii) has been lawfully received from a third party without restriction as to its use or disclosure; or (iii) was already in the receiving party’s possession free of any restriction prior to receipt; or (iv) was independently developed by the receiving party.
12.3 The provisions of this clause shall survive expiry or termination of the Agreement for a period of two years. Both the Company and OWC shall comply with the provisions of the Taiwan Trade Secrets Act.
Title in any documentation, data, equipment or products supplied by OWC to the Company shall be retained by OWC until receipt by OWC of full and final payment for the Services for which such deliverables have been produced.
14. Termination and Suspension
14.1 In addition to any other rights of termination arising under the Agreement, OWC may terminate the Services covered by the terms of the Agreement by giving 14 business days prior written notice to the Company if, in the reasonable opinion of OWC:
(A) a health or safety hazard attributable to the Company exists;
(B) the Services cannot be properly rendered due to a cause attributable to the Company; or
(C) the Company is in breach of the Agreement.
14.2 The Company may terminate or suspend the Services covered by the Agreement at any time subject to giving 30 business days prior written notice to OWC. Where the Services are terminated or suspended in accordance with this Clause, the Company shall pay a fair and reasonable price for any work done, which shall include all costs and liabilities incurred by OWC, including any additional costs arising from the termination of the Services and loss of profit. In no event shall the amount payable under this Clause exceed the total Price for the Services in question.
Neither the Company nor OWC may assign its interest in the Agreement or any rights under or arising out of or in connection with the Agreement without the prior written consent of the other party(such consent not to be unreasonably withheld or delayed).
16. Entire Agreement
16.1 The Agreement contains the entire agreement between the parties and supersedes any previous undertakings, commitments, agreements or representations whatsoever, oral or written pertaining to the subject matter hereof.
16.2 Each party acknowledges that it has not been induced to enter into the Agreement by any representation or warranty other than those contained in the Agreement and agrees that it shall have no remedy in respect of any other such representation or warranty except in the case of fraud.
Any notice required or permitted to be given by either party to the other in relation to these Conditions shall be in writing addressed to that other party at its registered address or principal place of business or such address as may have been supplied by that party to the other, from time to time.
If any provision of the Conditions shall be held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the reminder of these Conditions in that jurisdiction shall not be affected and the legality, validity and enforceability of these conditions in any other jurisdiction shall not be affected.
19. Governing Law
The Agreement, these Conditions and any non-contractual obligations arising from or connected with them shall be governed by Taiwanese laws and the Agreement and these Conditions shall be construed in accordance with Taiwanese laws.
Any dispute or difference arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination or the legal relationships established by it shall be submitted to Chinese Arbitration Association, Taipei and referred to an arbitral panel of three arbitrators, one to be appointed by the Company, one by OWC, and the chief arbitrator agreed by the two appointed arbitrator, in accordance with the provisions of the Arbitration Law of Taiwan and the Arbitration Rules of Chinese Arbitration Association, Taipei. Where it is considered appropriate, subject to the agreement of both parties, alternative methods of dispute resolution shall be considered including negotiation, adjudication, or mediation or recourse to the district court of Taipei, Taiwan. Where both parties agree, one of these alternative methods of dispute resolution shall be used by the parties.