1. Scope
These Purchasing Terms and Conditions apply to all Gazocean purchases, including tooling, equipment, parts, components, assemblies and sub-assemblies, raw materials, and services (the “Supplies”). They apply to all orders placed by Gazocean unless special terms have been negotiated. Such special terms may appear on the purchase order itself or in a separate written agreement. The provisions of these Purchasing Terms and Conditions, which are considered to be accepted as is, unless amended through negotiations (this includes taking into account the terms and conditions of sale of the supplier (the “Supplier”)), shall take precedence over the Supplier’s terms and conditions. The term Order (the “Order”) means the purchase order issued by Gazocean and expressly incorporates by reference: these Purchasing Terms and Conditions, the documents that define the characteristics of the Supply (drawings, specifications, lists of requirements, etc.) and documents specifying other contractual terms (the “Documents”).
2. Order
Supplies must be covered by a purchase order. The Order may be sent by mail, fax or any electronic means agreed upon. The Supplier accepts the Order by sending the acknowledgement of receipt appended to the purchase order, by mail, fax or any electronic means agreed upon, within eight (8) business days of the Order date. Any Order the receipt of which is not acknowledged but which is performed by the Supplier, in full or in part, will be considered to be accepted.
By accepting the Order, the Supplier undertakes to provide and/or produce Supplies according to the Gazocean Safety Management System (SMS) and any other existing Gazocean Quality procedures in place at the time of the Order and during performance of the Order which have been communicated to the Supplier.
3. Specific Obligations of the Supplier
3.1 The Supplier shall ensure that the Supplies to be delivered are produced in accordance with health, safety and environmental protection laws, regulations and standards and with the labor laws in force in each of the countries involved in their production. In particular, in France, the Supplier undertakes to comply with the regulations governing the prohibition of illegal employment and to provide, at Gazocean’s first request, the documents required under legal and regulatory provisions which certify that the Supplier’s employees are legally employed. In addition, the Supplier will adopt in its business dealings the ethical rules set out in the United Nations Global Compact on human rights, labor standards, the environment and anti-corruption as well as the rules of TOTAL’s Code of Ethics, group who is the Gazocean’s major shareholder. The commitment of the Supplier to be familiar with and satisfy the requirements of the Code of Ethics, and to comply with the rules and procedures established to implement the Code by Gazocean’s business partners, is a pre-requisite to continued business dealings between Gazocean and the Supplier.
As a professional in its field, the Supplier shall provide Gazocean with such recommendations and warnings as are necessary or relevant to the quality and security of Supplies, to make
recommendations in view of the use for which the Supplies are intended, and to make proposals likely to improve the quality or the cost of the Supplies.
As a professional aware of the constraints of the maritime industry, particularly in terms of quality, cost and leadtimes, the Supplier shall, in general, comply with the standards and practices of that industry, particularly for all goods including in 96/98EC directive and it’s A.1 & A.2 annexes, and all goods noticed in SOLAS regulation.
3.2 The Supplier shall promptly respond to any request for information by Gazocean concerning the Supplies and shall certify the origin and composition of the Supplies.
3.3 Gazocean may at any time request that the Supplier amend the Documents with a view to modifying the characteristics of the Supplies, the production process, or packaging or logistics specifications. The Supplier shall promptly provide Gazocean with a feasibility proposal which includes a schedule, together with an analysis of the potential consequences for the quality/reliability of the Supplies and the impact on the lead time. The Parties shall discuss these elements, within a timeframe that, to the extent possible, accommodates the scheduled implementation date in order to find a balance between the technical and business aspects of implementing the proposed change. If, following such discussions, it is impossible to find a balance that accommodates the interests and restrictions of the two parties, Gazocean may either refrain from making the change or cancel the Order in accordance with Article 12.
3.4 The delivery lead-time indicated in the Order is an essential component of the Order and must be strictly respected by the Supplier once it has accepted the Order. The Supplier will be liable for any damages incurred by Gazocean which result from late delivery, all costs charged to Gazocean and the differential cost of placing a Supply order with a third party if the Supplier is unable to deliver the Supplies for a prolonged period.
In addition, Gazocean may exercise its right to cancel the Order in accordance with Article 12.
3.5 If the Supplier must carry out works on a vessel managed by Gazocean, the Supplier shall comply with the internal regulations in force as well as with applicable legal and regulatory provisions, notably those pertaining to health and safety, and labor and employment legislation governing work done in an establishment by an outside company. It is understood that the same obligations apply to any sub-contractors of the Supplier. The Supplier shall be solely liable for any personnel who carry out work on the vessel managed by Gazocean and will take charge of the remuneration, guidance and management of such staff.
3.6 The Supplier will be personally responsible for the validity of its intellectual property rights to the Supplies and the free use of Supplies in relation to the intellectual property rights of third parties. The Supplier will hold Gazocean harmless against any claim and/or complaint from a third party on the grounds of counterfeiting, unfair competition or any similar or related action which is intended to prevent, limit or modify the marketing, sale or use of the Supplies by Gazocean.
4. Prices, Invoicing and Payment Terms
4.1 Prices
The applicable prices are those given in the Order. They are firm and are understood, unless otherwise agreed, to be Delivered Duty Paid (DDP), in accordance with the ICC Incoterms 2010, at the place of delivery of the Supplies as indicated in the Order. Prices are all inclusive and remunerate the Supplier for all costs, risks, charges and obligations of any sort in relation thereto and take account of all the elements that make up the Order.
No changes may be made without the express agreement of the parties.
4.2 Invoicing and payment terms:
All details shown in the Order which allow the Supplies to be identified and checked must appear on the invoice. The invoice must be sent to the billing address on the front of the Order form.
Unless otherwise agreed and/or unless other mandatory legal provisions apply, in France, Supplies must be paid for within 60 days of the date on which the invoice was issued.
5. Packaging and shipping documents
The Supplier will deliver the Supplies in packaging that is appropriate for the Supplies in question, and the kind of transportation and storage used, so as to ensure that they are delivered in perfect condition. The Supplier will be liable for damage (breakage, missing items, partial damage, etc.) due to inappropriate or unfit packaging.
Every packaging unit must display on the outside in legible form the notices required under applicable regulations, notably those pertaining to transportation, as well as any special handling or storage instructions. Notices will also specify the Order number, the batch number, a description of the Supplies, the names and addresses of the shipper and receiver (“Master of LNG tanker…”), the quantity of units contained, and the gross and net weight of the package. The delivery will be accompanied by a delivery slip, a custom invoice, as well as any safety data information sheets, where applicable.
6. Delivery
6.1 Supplies are delivered to the place indicated in the Order. They are accompanied by a delivery slip in duplicate giving identification details for the Supplies as well as the quantity, as stipulated in Purchase Order.
6.2 Gazocean reserves the right to refuse some or all of the delivery of Supplies, by means of an ordinary letter, fax or other electronic means, in the event of late delivery, in the event that the delivery is incomplete or contains more Supplies than were ordered, or in the event of non-compliance with the Order.
Failure to issue any reservation or complaint upon acceptance of the delivery will constitute neither final acceptance of the Supplies delivered nor a waiver by Gazocean of its right to seek subsequent redress owing to non-compliance with the Order or apparent or hidden defects of the Supplies.
6.3 After delivery, Gazocean will make its best efforts to promptly notify the Supplier of any non-compliance with the Order or visible defects of the Supplies that would preclude the final acceptance of Supplies, as soon as they are detected during the normal sequence of operations. The Supplier may not refuse to take action to remedy the situation on the grounds that the complaint was made in a non-timely fashion.
6.4 Supplies that are not definitively accepted as per a notification by Gazocean as provided for in Article 6.3 will be made available to the Supplier at the place indicated in the notification, to allow the Supplier to check the nature of Gazocean’s complaints.
6.5 The Supplier will be liable for all damages caused to Gazocean or third parties which result from the failure by the Supplier to perform its obligation to deliver Supplies, and in particular any damages suffered by Gazocean to replace noncompliant Supplies.
7. Warranties
7.1 The Supplier, which is an expert in its field, shall have an obligation of results and strict liability for its design (if this has been entrusted to the Supplier), its manufacturing process and its technical choices in the production and the fitness of the Supplies for the purpose for which they are intended. Gazocean’s acceptance or validation of drawings, processes, specifications or initial samples will in no way reduce the warranty liability of the Supplier.
The Supplier shall warrant in particular that the Supplies are:
– compliant with the Order, the Documents, the initial samples as accepted by Gazocean and the applicable professional practices, standards, laws and regulations.
– fit to fulfill the functions and the use for which they are intended (within the limits that may be specified by the Supplier) and offer the level of security that may be reasonably expected.
– free of any visible or latent defects or operating defects.
7.2 In case the Supplies are with the above warranty, and in proportion to its liability, the Supplier will compensate Gazocean for all physical, direct and consequential damage of a material or immaterial nature suffered as a result by Gazocean, including, but not limited to, the cost of actions linked to the replacement of defective Supplies.
8. Insurance
The Supplier will take out an insurance policy with a company that is known to be solvent and will provide evidence of this at first request. Coverage by this insurance policy will in no case limit the liability of the Supplier in relation to the Supplies.
9. Sub-contracting
9.1 The Supplier shall not assign and/or transfer the Order, even free of charge, either in full or in part, without Gazocean’s express prior written agreement. Should the Supplier be authorized to sub-contract a part or all of the Order to one or more third parties, the Supplier shall remain solely and fully liable to Gazocean for the performance of the Order and the compliance with the Purchasing Terms and Conditions. The Supplier will hold Gazocean harmless against any complaint from its sub-contractors and defend and compensate Gazocean for any consequences arising from such complaints.
9.2 Gazocean may assign or transfer, in full or in part, the Order to an Affiliate company or to a company that takes over some or all of its activities.
10. Confidentiality
10.1 All information provided to the Supplier by Gazocean, by its affiliates or representatives, including, but not limited to, technical, industrial, commercial or financial information, regardless of how it was communicated (in verbal, written, other form) including, in particular, designs, drawings, descriptions, specifications, reports, microfilms, electronic media, software and related documentation, samples and prototypes, is confidential (the “Information”).
The Information shall also include information that representatives of the Supplier, its suppliers, sub-contractors, agents, permanent or temporary personnel may obtain in relation to the Order.
10.2 The Information may not be used except in relation to the Order. The Supplier willtake measures to ensure that none of the Information is shared with or divulged to a third party, even a sub-contractor, without Gazocean’s express agreement. Any breach of this obligation may lead to the application of Article 12.1. This obligation of confidentiality will remain in effect for five (5) years after the Order is terminated or expires, irrespective of the reason for termination.
Once the Order is finished, the Supplier will return to Gazocean, upon its first request, all documents, confidential or otherwise, relating to the Order and will not keep copies on any medium whatsoever without Gazocean’s express prior agreement.
11. Transfer of Ownership and Risks
11.1 Gazocean reserves the right, during the Order and before delivery, to check the manufacturing processes used to produce the Supplies and the Supplies themselves, on the premises of the Supplier and of any sub-contractors. The Supplier shall give Gazocean free access to its premises at any time and ensure that Gazocean has free access to its subcontractors. Supplier shall also allow for Gazocean to test the Supplies. Such access or testing shall not in any way reduce the warranties provided by the Supplier.
11.2 The transfer of risks relating to the Supplies will occur according to the Incoterm stipulated in the Order and, in the absence of an Incoterm, at the point of delivery of the Supplies.
12. Termination
12.1 If the Supplier fails to meet one of its key contractual obligations (timely delivery of Supplies complying with the expected quality standards and the stipulated terms), Gazocean may terminate the Order automatically and without the necessity for recourse to any court or jurisdiction. Gazocean reserves its rights, in such cases, to claim for the damages resulting from the breach.
12.2 In the event of a change in the situation of the Supplier as mentioned in Article 9, Gazocean may terminate the Order automatically and without formalities, subject to giving a notice period of eight (8) days.
13. Miscellaneous provisions
13.1 If any provision in these Purchasing Terms and Conditions becomes null and void or unenforceable, only that specific provision shall have no force, and the parties will work in good faith to establish a new provision that is as close as possible to the original provision.
13.2 The Supplier may not refer to its commercial dealings with Gazocean without Gazocean’s prior written authorization.
13.3 The Order is governed by French law. The 1980 Vienna Convention on the International Sale of Goods is expressly excluded.
13.4 The Commercial Court of Marseille will have sole jurisdiction over any disputes, even in the event of third-party proceedings or where there are multiple defendants.