Optimus (en-GB) | Terms and Conditions

Subcontractor Terms and Conditions

This SUBCONTRACT is made and entered into from the date stated on the Purchase Order between Optimus Plus (Aberdeen) Limited (hereinafter referred to as “OPTIMUS”) and the Subcontractor contracting entity stated on the Purchase Order (hereinafter referred to as “SUBCONTRACTOR”).

WHEREAS:

OPTIMUS has entered into a contract with its respective client (hereinafter called the “CLIENT”) to undertake Engineering Services (hereinafter called the “CONTRACT”); and

OPTIMUS wishes to engage the SUBCONTRACTOR for the provision of subcontract work in connection therewith as are more fully set out in the Purchase Order (hereinafter called the “SERVICES”); and

The SUBCONTRACTOR is willing and able to provide such SERVICES to OPTIMUS on terms and conditions as hereinafter contained.

NOW IT IS HEREBY DECLARED AND AGREED AS FOLLOWS:

1. DURATION

The duration of this SUBCONTRACT shall be in accordance with the Purchase Order unless otherwise Terminated in accordance with the provisions herein.

2. RELATIONSHIP BETWEEN THE PARTIES

2.1 Nothing herein contained shall constitute the relationship of master and servant, principal and agent, or partnership between OPTIMUS and the SUBCONTRACTOR, and the SUBCONTRACTOR shall act as an independent contractor and in no sense shall any personnel provided by the SUBCONTRACTOR under this SUBCONTRACT be deemed to be employees of OPTIMUS.

2.2 The SUBCONTRACTOR undertakes not to make any representation or statement about OPTIMUS unless specific prior written consent has been obtained or to do anything whereby OPTIMUS is placed under any obligation or liability. In particular, the SUBCONTRACTOR has no authority to incur any liability on behalf of OPTIMUS or in any way to pledge its credit or accept any contract binding upon it.

3. GENERAL OBLIGATIONS

Without limiting any other obligations or liabilities it may have the SUBCONTRACTOR hereby warrants, undertakes and agrees:

a)that it has the required capacity, skill, experience and resources to undertake the SERVICES and that the personnel utilised in the performance of the SERVICES by the SUBCONTRACTOR shall be properly qualified, skilled, and experienced;

b)that the SERVICES shall be carried out with all due skill, care and diligence and in accordance with good and sound practice in accordance with the instructions of and to the satisfaction of OPTIMUS and the CLIENT;

c)that it shall allow OPTIMUS access to where the SERVICES are being performed and the right of examination of the SERVICES during performance; and

d)that it shall in its performance of this SUBCONTRACT and the SERVICES hereunder comply with all relevant statutes, byelaws, regulations and other provisions having the force of law and all applicable rules and regulations regarding safety, security, access to and conduct of persons at the location where the SERVICES are to be carried out and shall at all times comply with any reasonable instructions from OPTIMUS for or in connection therewith.

4. ASSIGNMENT

SUBCONTRACTOR must not subcontract the SERVICES or any part thereof nor assign any benefit or interest in the SERVICES to any other party without the prior written consent of OPTIMUS.

5. SUBCONTRACTOR PERSONNEL

5.1 SUBCONTRACTOR must remove from the SERVICES forthwith and without question any persons who in the reasonable opinion of OPTIMUS or the CLIENT are incompetent, negligent, and/or whose performance is otherwise detrimental to the satisfactory performance of the SERVICES and if so instructed by OPTIMUS shall promptly and without additional cost or expense to OPTIMUS replace such person(s) with substitutes acceptable to OPTIMUS and the CLIENT. Any such requirement of OPTIMUS and / or the CLIENT shall be final and shall not be capable of being disputed in any arbitration or litigation.

5.2 SUBCONTRACTOR must not remove any personnel from the SERVICES without providing twenty one (21) days written notice to OPTIMUS.

6. DEFECTS CORRECTION

In the case of defects, errors or omissions in the SERVICES, SUBCONTRACTOR must promptly re-perform such SERVICES and remedy such defects, errors or omissions at no cost to OPTIMUS unless OPTIMUS carries out such work itself or through others in which case SUBCONTRACTOR shall indemnify OPTIMUS against all claims, losses, damages, costs (including but not limited to legal costs), expenses and liabilities.

7. VARIATIONS

OPTIMUS shall have the right at any time during the course of this SUBCONTRACT to issue instructions to the SUBCONTRACTOR to make variations to the SERVICES. SUBCONTRACTOR shall be compensated for such variations at rates, prices, or sums determined by reference to the Purchase Order in so far as they can be so determined failing which at rates which are fair and reasonable and agreed between the parties.

8. PAYMENT

OPTIMUS shall make payment of a correctly prepared and fully supported invoice within sixty (60) days of receipt. Compensation shall be fixed for the period(s) specified therein and the SUBCONTRACTOR may not claim any adjustment or revision to such compensation because it incurs additional costs or burdens as a result that its liability at law has changed, whether as a result of the introduction of new laws, a modification in the interpretation of existing laws or otherwise related to the enforcement of such laws.

9. SUSPENSION AND TERMINATION

9.1 This SUBCONTRACT may be terminated at any time and for any reason without OPTIMUS incurring any liability thereby on written notice of not less than fourteen (14) days given to SUBCONTRACTOR by OPTIMUS. Similarly, the engagement of any person on the SERVICES can be terminated by OPTIMUS at any time and for any reason without OPTIMUS incurring any liability thereby, provided that unless the provisions of Clause 5.1 apply, a minimum notice of fourteen (14) days shall be given by OPTIMUS.

9.2 If SUBCONTRACTOR commits any breach of the terms and conditions of this SUBCONTRACT and after notice from OPTIMUS fails to remedy the same within such time as may be specified in such notice (or if no time is specified therein within a reasonable time) then in addition to any other remedy OPTIMUS may, by notice to the SUBCONTRACTOR, treat this SUBCONTRACT as terminated forthwith. OPTIMUS shall have a similar right to treat this SUBCONTRACT as terminated in the event that the CONTRACT is terminated or in the event that the SUBCONTRACTOR, being a natural person commits an act of bankruptcy or, being a corporation, goes into liquidation (other than a voluntary liquidation for the purposes of reconstruction or amalgamation) or has a receiver appointed, compounds with its creditors or becomes insolvent.

9.3 On receipt of a notice of termination from OPTIMUS, the SUBCONTRACTOR shall cease all work on the SERVICES and shall deliver to OPTIMUS all documents, drawings, reports and all other data prepared by the SUBCONTRACTOR, regardless of their state of completion.

9.4 OPTIMUS shall have the right to suspend the SERVICES at any time by giving notice in writing to the SUBCONTRACTOR. During the period of such suspension, the SUBCONTRACTOR shall properly protect and secure the SERVICES as approved in advance by OPTIMUS. Should the suspension continue beyond 60 (sixty) calendar days, the parties hereto shall agree on an appropriate course of action.

9.5 Subject to Clause 8.6, SUBCONTRACTOR's entitlement to payment by OPTIMUS due to termination or suspension shall be limited to the value of the SERVICES actually and properly performed calculated in accordance with the Purchase Order and subject to any deduction which OPTIMUS is entitled to make as a consequence of any breach by the SUBCONTRACTOR or failure to perform the terms of this SUBCONTRACT.

9.6 In the event of termination due to SUBCONTRACTOR default no further payment shall be made to the SUBCONTRACTOR until the cost of completion of the SERVICES and other costs and damages incurred by OPTIMUS have been determined.

10. TAXES

The SUBCONTRACTOR shall be solely responsible for the payment of any payroll taxes, insurances, social security contributions and any other taxes or impositions of whatever nature imposed by the relevant authorities, with regards to the performance of the SERVICES, and shall indemnify OPTIMUS and the CLIENT with respect to any such taxes or assessments by the authorities.

11. PATENT RIGHTS

11.1 SUBCONTRACTOR shall indemnify and hold harmless OPTIMUS and the CLIENT against all claims, losses, damages, c costs (including but not limited to legal costs), expenses and liabilities arising from any infringement of any patent, registered design or trade mark or any other protected right arising from the proper use of any design, system or procedure originating from the SUBCONTRACTOR in the performance of the SERVICES.

11.2 OPTIMUS shall indemnify and hold the SUBCONTRACTOR harmless against all claims, losses, damages, costs (including but not limited to legal costs), expenses and liabilities arising from any infringement of any patent, registered design or trade mark or any other protected right, solely arising out of the supply by OPTIMUS to the SUBCONTRACTOR of any process design, documentation or other information for the purposes of the SERVICES.

11.3 In respect of any intellectual property rights, and/or proprietary information and/or technical know-how, patentable or not patentable, which might be in possession of the SUBCONTRACTOR prior to award of the SUBCONTRACT, the SUBCONTRACTOR shall grant, or have granted, to the OPTIMUS and the CLIENT (including for the purpose of this Clause OPTIMUS and the CLIENT's respective Affiliates, successors and assigns) an irrevocable worldwide royalty-free licence to use, or have used, any such patent and/or other proprietary information and/or technical know-how for the purposes of the works and/or facilities created as a result (in whole or in part) of the SERVICES.

11.4 The SUBCONTRACTOR shall obtain from its Affiliates and Subcontractors the same undertaking.

12. INDEMNITIES AND INSURANCES

12.1 The SUBCONTRACTOR shall be responsible for and shall save, indemnify, defend and hold harmless OPTIMUS from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:

(a)loss of or damage to property of the SUBCONTRACTOR whether owned, hired, leased or otherwise provided by the SUBCONTRACTOR arising from, relating to or in

connection with the performance or non-performance of the SUBCONTRACT;

(b)personal injury including death or disease to any person employed by the SUBCONTRACTOR arising from, relating to or in connection with the performance or non- performance of the SUBCONTRACT; and

(c)subject to any other express provisions of the SUBCONTRACT, personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of the SUBCONTRACTOR. For the purposes of this Clause 12.1 “third party” shall mean any party which is not a member of OPTIMUS or SUBCONTRACTOR.

12.2 OPTIMUS shall be responsible for and shall save, indemnify, defend and hold harmless the SUBCONTRACTOR from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities in respect of:

(a) loss of or damage to property of OPTIMUS, whether owned by OPTIMUS, or leased or otherwise obtained under arrangements with financial institutions by OPTIMUS arising from, relating to or in connection with the performance or non-performance of the SUBCONTRACT;

(b) personal injury including death or disease to any person employed by OPTIMUS arising from, relating to or in connection with the performance or non-performance of the SUBCONTRACT; and

(c) subject to any other express provisions of the SUBCONTRACT, personal injury including death or disease or loss of or damage to the property of any third party to the extent that any such injury, loss or damage is caused by the negligence or breach of duty (whether statutory or otherwise) of OPTIMUS. For the purposes of this Clause 12.2 “third party” shall mean any party which is not a member of OPTIMUS or SUBCONTRACTOR.

13. INSURANCES

13.1 The SUBCONTRACTOR shall arrange as a minimum insurances required to comply with its liabilities herein as maybe require statute, law or otherwise and ensure that they are in full force and effect throughout the life of the SUBCONTRACT. All such insurances shall be placed with reputable and substantial insurers, satisfactory to OPTIMUS, and shall for all insurances (including insurances provided by Subcontractors) other than Employers’ Liability Insurance/Workmen’s Compensation to the extent of the liabilities assumed by the SUBCONTRACTOR under the SUBCONTRACT, include OPTIMUS and its Affiliates as additional assureds. All insurances required under this Clause 12 shall be endorsed to provide that underwriters waive any rights of recourse, including in particular subrogation rights against the OPTIMUS, and its Affiliates in relation to the SUBCONTRACT to the extent of the liabilities assumed by the SUBCONTRACTOR under the SUBCONTRACT. The provisions of this Clause 12 shall in no way limit the liability of the SUBCONTRACTOR under the SUBCONTRACT.

13.2 The CONTRACTOR shall supply the COMPANY with evidence of such insurances on demand.

13.3 The CONTRACTOR shall procure that their Subcontractors are insured to appropriate levels as may be relevant to their scope of work.

14. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY

14.1 The SUBCONTRACTOR shall not without OPTIMUS's prior written approval disclose to any other party any information which the SUBCONTRACTOR directly or indirectly acquires from OPTIMUS or the CLIENT or from the provision of SERVICES under this SUBCONTRACT. This obligation shall remain in force for a period of six (6) years after completion of the SERVICES or termination of the SUBCONTRACT.

14.2 The ownership of all design documents, drawings, plans, reports and other such documents supplied by OPTIMUS to the SUBCONTRACTOR or prepared by the SUBCONTRACTOR in the performance of its SERVICES and all intellectual property rights therein shall be vested in OPTIMUS.

15. AUDIT RIGHTS

OPTIMUS shall have access to all records pertaining to the SERVICES, for the purposes of review and verification of charges made by the SUBCONTRACTOR, provided that OPTIMUS shall not be entitled to review the make-up of lump sum amounts or fixed rates and prices. The SUBCONTRACTOR shall preserve such accounts and records for three (3) years after completion of the SERVICES.

16. ETHICAL CONDUCT

The SUBCONTRACTOR undertakes to protect the standards of business practice of OPTIMUS at all times and to act in such a way as to uphold OPTIMUS’s good name and reputation and not to do or attempt to do any act or thing which is intended and/or which in fact causes any damage to or brings discredit upon OPTIMUS and in particular the SUBCONTRACTOR will not;

a)offer or give or agree to give to any director, officer, employee or agent of OPTIMUS or of the CLIENT any gift or consideration of any kind as an inducement or reward for doing or for forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of the SUBCONTRACT or any other contract with OPTIMUS or the CLIENT or for showing or forbearing to show any favour or disfavour to any person in relation to the CONTRACT, the SUBCONTRACT or any other contract with OPTIMUS or the CLIENT.

b)induce or attempt to induce any officer, servant or agent of any private or public body to depart from his duties to his employer nor be involved with any such arrangement.

17. NOTICES

Any notice to be given under this SUBCONTRACT shall be in writing and delivered by hand or sent by ordinary mail, to the address of the relevant party first above given in this SUBCONTRACT, or email address as stated in Purchase Order (such addresses for the purposes of receiving notices can be changed by prior notice.)

18. APPLICABLE LAW

This SUBCONTRACT shall be construed and interpreted in accordance with the laws of England and the parties hereby submit themselves to the non-exclusive jurisdiction of the English Courts in connection therewith.

19. ENTIRETY OF AGREEMENT

This SUBCONTRACT including the Purchase Order, constitutes the entire agreement between the parties on the subject matter hereof and supersedes all prior negotiations, representations or agreements related to the SUBCONTRACT, either written or oral.

The terms and conditions set out therein shall apply to the performance of the SERVICES. Such terms and conditions shall not be amended or varied save by a written instrument executed by each party and expressly referring to this SUBCONTRACT. In particular, the SUBCONTRACTOR's standard or other terms and conditions shall not apply even if included or referred to in correspondence from the SUBCONTRACTOR to OPTIMUS.

20. DISPUTE

If a dispute arises between the OPTIMUS and the SUBCONTRACTOR, the aggrieved party must (as soon as practicable) notify the other party in writing of the nature of the dispute. Within seven (7) days of being notified of the dispute, the parties must meet to resolve the dispute. If the parties fail to resolve the dispute after thirty (30) days, either party shall have the option to refer the matter to the English Courts for resolution. Nothing in this clause 19 will prevent any party to a dispute from seeking interlocutory relief in respect of any such dispute.

21. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT

No provision of this SUBCONTRACT is, by virtue of the Contracts (Rights of Third Parties) Act 1999 intended to confer any benefit on, nor be enforceable by any person who is not a party to the SUBCONTRACT.

22. CONTINUING OBLIGATIONS

All Clauses which by their nature survive termination of the SUBCONTRACT (including without limitation Clauses), 6,7,11,12,13,14,15,16,18,19,20,21 and this Clause 22 shall survive.

The parties hereby agree the SUBCONTRACT is deemed to be executed and effective from the date state on the Purchase Order.