1.1 The following terms shall have the following meanings unless the context otherwise requires: “ADC Energy Ltd” or “ADC” is contracted by the Client to provide their services.
“ADC Energy Ltd. Personnel”: the person(s) directed by ADC to conduct the service. This person(s) is not a legal representative and therefore is not authorised to sign documents on behalf of ADC.
“Client”: the party who requests and instructs ADC to carry out the Services.
“Services/Work”: The Services/Work shall comprise the provision of all reports, materials, equipment consumables and all activity and work to be performed and advice, including or separately given support or instructions by qualified personnel together with the necessary equipment to perform work which is requested by the Client as detailed in the “scope of work” or purchase order, or other instruction from the client which is accepted by ADC Energy Ltd. These services will be at such times and locations as the client directs. The services may consist of management system audits, rig and BOPE inspections, HSE audits, well examinations, risk assessments, dropped object surveys and management, asset integrity assurance, as well as other inspection services and data management applications.
“Services agreements”: The services are to be described in separate agreements, governed by these standard Terms and Conditions if applicable and agreed upon by signature of the parties.
“Client Indemnified Parties”: The owners and operators of any organisation, unit or equipment to be inspected audited and /or evaluated by ADC Energy Ltd., on behalf of the client, as part of the services, and their respective employees, agents and sub-contractors.
“High-risk projects”: The projects that are considered and qualified by ADC, based on identifiable facts, to bear a more than usual level of risk involved, on financial or operational level, the safety of the personnel, or any other hazards that go beyond the normally acceptable level of risk in the operation or execution of projects.
2.1 The terms and conditions set out herein shall apply to all proposals, offers and contracts entered into by ADC Energy Ltd. Unless a signed agreement is in place between both parties, these terms and conditions shall apply when Client agrees with the proposal provided by ADC to the Client. No work shall commence on the part of ADC Energy Ltd. if a signed agreement for proposal acceptance is not in place.
2.2 No modification or variation thereof shall be permitted or accepted or deemed to be permitted or accepted by ADC Energy Ltd. unless expressly agreed in writing by both parties.
2.3 If one or more of any provisions of these conditions prove to be invalid or not acceptable or are to be void this will not have any effect on the other provisions and terms of these general terms and conditions which will remain in effect.
2.4 These terms and conditions are also applicable to any agreements with ADC Energy Ltd. in which third parties are subcontracted either with ADC or with Client.
2.5 All proposals made by ADC Energy Ltd. are valid for a period of 2 months after the date of issue if not otherwise stated in the proposal.
2.6 The terms and conditions are applicable for the duration of the project as noted in the scope of work.
3.1 ADC shall carry out such activities as is appropriate having regard to all relevant circumstances including in particular without prejudice to the foregoing generality the instructions from the Clients, time constraints or availability of access to facilities, equipment, documentation etc. Which is deemed necessary to provide the Services and shall report to the Client as fully as reasonably practicable having regard to such circumstances. In the absence of any express agreement to the contrary ADC shall give no guarantee that any organisation on any unit or equipment is or shall continue for any period of time to be free from defects or fit for any particular purpose.
3.2 Any report issued by ADC, as part of the Services/Work, may contain explanations to the extent that ADC has, whether through lack of time or otherwise, been unable to inspect/evaluate certain parts of any organisation, unit or equipment, or is unable without engaging specialist consultants to advise on any particular aspect or part of such organisation, unit or equipment and without prejudice to any other provisions contained herein – ADC shall have no liability in respect of any matters regarding this work which could not be completed.
3.3 Any report issued by ADC Energy Ltd. as part of the services shall unless otherwise expressly agreed between the Client and ADC be for the benefit of the Client alone for the specific project involved and ADC shall not accept any liability for the contents of such report provided to any other party.
4.1 ADC undertakes to indemnify and hold the Client and Client Indemnified Parties harmless from and against all claims, liabilities, costs, damages and expenses of whatsoever nature arising out of injury to or death of any employee, servant, agent, sub-contractor or invitee of ADC and damage to or destruction of any property of ADC or any of its employees, servants, agents or invitees arising directly or indirectly as a result of the performance by ADC of the Services.
4.2 The Client undertakes to indemnify and hold ADC and its employees, servants, agents, sub-contractors and invitees harmless from and against all claims, liabilities, costs, damages and expenses of whatsoever nature arising out of injury to or death of any employee, servant, agent, or invitee of the Client or any Client Indemnified Parties or damage to or destruction of any property of the Client or the Client’s employees, servants, agents, sub-contractors or invitees or the Client Indemnified Parties arising directly or indirectly as a result of the performance by ADC of the Services irrespective of whether such injury, death, damage or destruction is caused in whole or in part by negligence on the part of ADC or its employees, servants, agents, invitees or sub-contractors.
4.3 Notwithstanding the aforementioned, in the case of wilful misconduct or gross negligence of the Client or ADC (contract parties), or any of the Client Indemnified Parties resulting in such injury, death, damage, or destruction, these parties will be held responsible and liable if so decided by arbitration or a court of law.
4.4 Notwithstanding anything to the contrary in this Agreement, the liabilities and obligations of the Parties under this clause shall survive the termination of this agreement in respect of any claims arising during the term of the Agreement or thereafter.
4.5 Client Indemnified Parties include the owners of the equipment, facility or service to be inspected, even if the Services are provided prior to the client being contractually engaged with the party being inspected, audited etc.
5.1 ADC clearly depends on the information provided by the Client for initial identification of the high-risk projects. This information must be complete and sufficient to allow identification by ADC and its insurer. Should there be any doubt about the level of risk involved, the Client must alert ADC Management of the details, thereby allowing ADC to make a decision as to the safety of its personnel.
5.2 In all cases the Client is responsible for their management decisions taken after receipt of the ADC findings and or report and for overall liability.
6.1 All commitments with respect to the timing and scope of the project agreed between the Client and ADC are to be confirmed in writing. These agreements are made in good faith and will be executed with the best effort but are made necessarily in advance of knowing the full scope of the difficulty that may pertain to performance on specific points. For this reason, whilst ADC agrees to use its best endeavours to fulfil such commitments to Clients on the timing and the scope of work, ADC cannot guarantee performance in either respect (see article 13).
6.2 ADC reserves the right to decide whether or not to conduct, begin or continue with a project after evaluating the risks regarding the health, safety and security of its representatives.
6.3 Changes to the scope of work or services must be made in writing to the ADC Management and not with the ADC Representative on site.
6.4 Where the services include the writing of a report, the report shall be issued in a maximum of one hard copy (extra hard copies may be requested at a cost of £200 per copy) and four fully linked CD copies of the report in the English language.
7.1 ADC agrees to hold all information provided by the Client as confidential where the Client so specifies, unless:
– such information is known to ADC prior to start of services, or
– is known in the public domain, or
– ADC is given the same information by a third party, or
– is released from its confidentiality requirement by the Client, or
– the Client is found in breach of contract with ADC by a court of law (including non-payment of account), or
– three years have elapsed, whichever is the sooner.
7.2 The Client agrees to hold confidential all information about ADC proposal(s), fee structures, fees and personnel, ADC propriety information, data, tools and software.
7.3 ADC agrees to handle any materials, such as software programs or documents, supplied by the Client to ADC, in a responsible fashion and return them to the Client upon request or completion of project. However, ADC will not be responsible for any wear or tear occasioned nor for any loss or theft that might occur. All such material is supplied at the Client’s own risk and no liability for any financial restitution for any direct or indirect value is accepted by ADC.
8.1 Client shall ensure that any information provided, in any form, which is necessary for the performance of services by ADC is true and accurate and the Client shall be solely responsible for the contents therein.
8.2 The Client is to inform equipment and facility owners and /or management that:
a) ADC is not responsible for any breakdown and malfunctioning of their equipment or facility during or after the service.
b) They will be entitled to refuse any inspections or tests if they have valid reason to believe that the test may endanger the safety of the equipment, the facility, the personnel, the surrounding environment or the ongoing operation for another party
8.3 The Client shall ensure that all operations and activities are in agreement with local or international regulations and laws and that they act in compliance with these laws and regulations in all areas of health, environment, safety, security, taxes, privacy, etc.
8.4 Should the client solicit an ADC employee and or representative and the individual accept the employment within a period of twelve months after the project, then the client shall pay ADC a finder’s fee in the amount of three months’ salary of said individual. All personnel have a competition clause in their employment contract.
8.5 The Client is liable for the security of ADC staff travelling to and from the facility upon their entering the country, if the ADC employee is not a resident of the country. All possible reasonable precautions are to be taken by the Client to safeguard the ADC representative in the same manner as the Clients personnel are afforded.
9.1 ADC shall not be liable to the Client or Client Indemnified Parties and the Client or Client Indemnified Parties shall not be liable to ADC in respect for any claims for loss of production, loss of product, loss of use and loss of revenue, profit and anticipated profits, loss of business or any other indirect losses or consequential damages arising as a result of the performance by ADC of the services regardless of the cause thereof including but not limited to the negligence of the party seeking to rely on this provision. Notwithstanding any provisions to the contrary elsewhere in the agreement, the Client shall indemnify and hold ADC harmless from and against any such claims against ADC brought by the Client group and or Client Indemnified Parties regardless of the cause, even if such damages are caused by the fault or negligence of the other signatory and/or such other’s personnel.
10.1 ADC warrants that all personnel and subcontractors will be employed on terms that protect the Client’s intellectual property rights for as far as these materials are made known or given in custody to ADC.
10.2 Notwithstanding any payments received from the Client, all rights of ownership to all materials prepared by ADC, whether written or not, shall remain the property of ADC copyright and distribution rights are reserved by ADC at its sole discretion, except where these rights are explicitly stated in writing to have been waived or where the contract between ADC and the Client explicitly so provides or where the material is so endorsed by ADC.
10.3 ADC however grants the right, without prejudice to its position under the previous paragraph, to the Client to copy freely any reports and or documentation in hard or soft copy provided by ADC as part of work wholly commissioned by the Client provided that the distribution of these copies is exclusively within the Client’s particular organisation or project and accepts the report findings are only applicable for the project commissioned by the Client.
10.4 This clause shall apply to all reports, including the final Client report, and all presentation materials. It shall also apply to any audio, photographs or videotaping of any presentations made by ADC for the Client. This does not apply to training materials used to support all ADC trainings, as these may not be copied in any form.
10.5 The right to distribute copies of ADC material internally within the Client’s organisation does not extend to multi-Client and off-the-shelf market research reports and software that have been purchased from ADC. Additional copies of such items for internal distribution are available at the time of the purchase or later.
10.6 The Clients interests in respect of this clause and any materials provided by the client to ADC are protected by ADC blanket confidentiality commitment in respect of the dissemination of any and all materials related specifically to the Client’s affairs.
11.1 ADC proposals and/or contracts with Clients stipulate whether they are “fixed price” (i.e. lump sum, all expenses will be included within the pre-negotiated fee) or “rates plus expenses” in which case expenses are levied in addition to the agreed rates. This section provides clarification of our standard policy on what expenses will be claimed and how.
11.2 The agreed rates apply to all working days, travel days and report costs. The rates are net and excluding GST/VAT, withholding taxes. Should the Client be required to withhold local taxes from the invoice amount, then the Client has the responsibility to inform ADC and it will be necessary to increase the rates accordingly. Applicable expenses are charged to the Client at the gross invoice value. Expenses will be charged inclusive of any sales taxes (or similar fiscal levies) where these are payable to ADC, whether or not ADC may be able to subsequently reclaim any part of these.
11.3 VAT (and any other relevant tax) will be added to the invoice amount in line with applicable government legislation at the rate ruling at the time of invoice.
11.4 If the commencing date of the agreed service, which has been confirmed / agreed by the Client is delayed after the ADC personnel have departed their place of residence to the nearest ADC office and prior to commencing the Client’s services, then full rate per day per person will be charged to the Client. If the ADC personnel are standby at the project or days waiting on transport from or to site, the full day rate is applicable.
11.5 Invoices will normally be presented on a monthly basis or after completion of the service. ADC may, at its sole discretion, choose to present invoices more frequently, to reflect the level of expenses accumulating.
11.6 When applicable and possible, for work conducted in the same area for another Client by an ADC representative, the visa costs and travel costs will be shared.
11.7 ADC is hereby authorised to incur, without prior notice to the Client, “reasonable” travel expenses (as outlined below) in performing the Clients instructions. The Client agrees to reimburse these at cost plus 10 % handling fee.
ADC uses a professional visa service, however, if travelling is required by ADC personnel to obtain an entry visa for the country where the work will be conducted, then these days will be charged according to the working day rate and expenses will be charged.
b All travel expenses of the ADC representative(s) from their home to the job site, on-the-job and return to home, for transportation and all other reasonable expenses including rental car or mileage costs are to be paid by the Client.
c “Reasonable” travel expenses are those generally applied within international corporations for their senior executives. These vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, Business Class International air travel; accommodation, lodging, and incidental costs within a hotel suitable for international business affairs, all meals whilst acting on behalf of the Client within a hotel’s restaurant or an equivalent grade of individual premises, 1st class rail travel, taxi’s and car hire costs for a mid-size or executive size vehicle as appropriate. Where appropriate to the circumstances, ADC reserves the right to vary the class of travel to meet the business needs.
d All expenses are payable for the total activity time (as defined above) i.e including travel to and from the Client’s premises or work location.
e Expenses incurred in foreign currency will be billed at the actual exchange rate of the date of invoicing.
f ADC representatives are required to obtain receipts for expenses wherever practical, copies are included with the invoice unless a per diem is agreed.
12.1 The Client agrees to be bound by the payment terms stipulated in the proposal / contract. In the absence of any other agreed payment terms, all invoices shall be payable in full within 30 days of the date of the invoice with the exception of training services which are paid in advance. If payments have not been received within 45 days after the invoice date, four percent (4%) interest will be due over the full amount of the invoice for every month or part of a month that the invoice date is delayed thereafter.
12.2 The report will be dispatched to the Client only after a service order or contract order is verified and the proforma invoice is approved.
12.3 If the Client fails to make any progress payment without giving notification of due cause, then ADC will withhold delivery of any final reports and will not be responsible for any inconvenience, loss or damage so caused.
12.4 The currency of payment will be stipulated in the Client proposal / contract. Both parties agree to accept this in respect of all invoices / payments.
12.5 Unless otherwise explicitly provided by an individual contract, no account will be taken of any exchange rate fluctuations during the life of the contract. Each party accepts as part of their own responsibility the variation between zero and five percent, whether favourable or unfavourable. Should the fluctuation exceed 5%, ADC may, at its sole discretion, adjust the rates upwards to compensate for this fluctuation.
12.6 The Client’s responsibility is for payment to ADC of the full amount agreed. The Client agrees to adjust all payments to take into account any charges levied (such as may be made by the transferring bank), so that the full invoice amount is to be received by ADC. The Client accepts that ADC shall be entitled to recover all deducted amounts.
12.7 The Client agrees to make payment by telegraphic transfer to the bank location stipulated in the invoice. ADC shall be entitled to recover any costs caused by any Client variations to this amount not agreed in advance.
12.8 The Client agrees to pay all government taxes and duties, regardless of origin, that may apply to all payments to ADC; if Client and ADC are residing in different countries. Each party will be responsible for recovering their own entitlements in respect of pre-payments (for example in respect of VAT or sales tax).
12.9 ADC shall have the right to suspend all work on behalf of the Client should payments not be made on time to the agreed schedule. Any adverse impact that this suspension has upon the completion schedule or the quality of the service for the Client shall be at the Client’s sole responsibility. This right applies not just to the contract in arrears but also any other contracts with the Client, whether or not payments against these contracts are in arrears.
12.10 In particular, Clients should note that where it has been agreed that payment of all or part of a project is to be made “in advance”, work will not commence on the Client’s behalf until payment is actually received.
12.10 The rates set out in our commercial information shall be fixed for a period of six months from the date of our submitted proposal. Should the services/work duration exceed six months from the date of our submitted proposal, ADC may, at its sole discretion, choose to increase the rates for the services by ADC according to the present market conditions to take into account the increased cost of raw materials, increased labour costs (by reference to official labour indices) and other costs directly and/or inevitably incurred (or to be incurred) as a result of the provision of services hereunder. ADC shall give no less than one month’s prior notice in writing of any proposed increases in the rates.
13.1 ADC provides information, advice, reports and other services in good faith and to its best effort, based upon information available and findings at the time. ADC shall carry out all of its obligations under the contract and shall execute the services with all due care and diligence and confirms that ADC personnel are properly trained, qualified, skilled and experienced to provide the services. The services shall be fit for the purposes specified in the scope of work. ADC does not guarantee that the services are without error, that they will achieve a given result, that they will meet the demands of the Client, or that they are appropriate for the purpose envisioned by the Client.
13.2 ADC does not warrant the accuracy of information provided in reports or services or supporting materials but ADC uses its best endeavours to perform. It is for the Client to decide whether or not to accept the advice when making any management decisions or taking further actions. ADC never accepts liability for the consequences of a Client’s decision based on this information, opinion and advice; whether direct or indirect.
14.1 ADC may with the permission of the Client, publicise the fact that the Client is, or was, a Client and to utilise the Client’s name in publicity materials in this respect. ADC may also describe in general terms the type of work conducted for the Client.
14.2 Where the results of any commissioned work are cited by the Client, the Client agrees to make due and honourable reference to ADC so as to make it clear who carried out the work, except where ADC explicitly waives this right. This provision is notwithstanding the over-riding position over ownership of said product (see article 10.2).
15.1 Any complaints about the behaviour of employees, quality of services, reports or any other activity of ADC must be filed in writing to ADC preferably within one week following the occurrence of the incident. ADC in turn will address this matter per the ADC company policy. The complaint will not suspend any activity, or applicability of any obligation of the parties.
16.1 Any contract obligations between ADC and Client will be seriously reviewed and adjusted in the situation of articles 16.2 and or 16.3.
16.2 ADC will have the right to suspend or end its ongoing services or activities immediately when invoices are outstanding from the Client not suspending any right that ADC will be entitled to recover in full all fees and expenses.
16.3 ADC shall have the right to discontinue immediately all work for the Client should: the Client petition for bankruptcy, or be declared insolvent, or be placed into administrative receivership or be generally unable to pay their bills as they become due.
16.4 In the above circumstances ADC will also be entitled to have a general lien on all goods and property of the Client that is within ADC possession and, following 14 days notice to dispose of such goods and property in such manner and at such prices as ADC deems fit and to apply these proceeds towards such debts as may be outstanding from Client to ADC.
17.1 ADC will not carry out any illegal activities on behalf of the Client. Any requirement in this respect will nullify the contract and any agreement in respect of performance and ADC will be entitled to recover in full its fee and expenses.
17.2 The Client agrees not to make any illegal use of any information provided by ADC.
18.1 Without prejudice to other more restrictive limitations elsewhere in the contract, liability on the part of ADC is limited to the value of the service with the Client or the value of the loss whichever is smaller, and up to a maximum of the insurance cover in effect.
18.2 ADC carries a general liability insurance cover indemnity of GBP £1,000,000 (GB Sterling ONE MILLION).
19.1 Force majeure means in respect of either party, any event or occurrence whatsoever beyond the reasonable control of that Party, which delays, prevents or hinders that Party from performing any obligation imposed upon that Party under this contract, including to the extent such event or occurrence shall delay, prevent or hinder such Party from performing such obligation, Acts of God, labour disputes, health protection measures, social unrest, acts of terrorism, security measures upon these acts, war, fire, epidemics, explosions, blockades, or unforeseeable official governmental measures and other unavoidable and unforeseeable events or change of circumstances (see article 6.2)
19.2 Where the delay caused by third party events outside either party’s control or influence causes such delay or damage that the purpose of the contract is wholly or significantly destroyed, either party shall be entitled in these circumstances to cancel the remaining portion of the project. In such circumstances ADC will be entitled to recover all costs and charges already incurred, immediately prior to entering Force Majeure, within 30 days from the start of Force Majeure.
20.1 If not mutually decided otherwise, any contract between ADC and the Client relating to the provision of services shall be governed by and constructed according to the Laws of Scotland.
20.2 In the case of disputes or claims that are the result of the provision of any of the afore-mentioned services or related to these terms and conditions or the agreements or contracts governed by these general conditions. ADC and the Client agree to submit any dispute or claim to the non-exclusive jurisdiction of the Scottish courts.
20.3 Parties can also decide to submit this dispute to a recognised or certified institution of arbitration.
20.4 These terms and conditions are drawn up in the English language should they be translated to another language, the original English version shall prevail in case of disputes or difference.
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