Terms and Conditions

Services

1. OPTIMUS (Aberdeen) Limited (“OPTIMUS”) agrees to provide Consultancy Services as more fully described in the accompanying proposal document (“SERVICES”) to the Company named in the PROPOSAL (the “CLIENT”). Unless agreed otherwise in writing, the accompanying proposal document (“PROPOSAL”), the Scope of Work and Remuneration therein and these terms and conditions comprise the entire agreement between the parties (“CONTRACT”) and supersede any previous verbal or written communications or representations relating to the same subject matter. For the avoidance of doubt, this CONTRACT shall not oblige OPTIMUS to perform the following types of services (for which a more appropriate form of agreement can be provided) notwithstanding that such types of services may be expressly referred to or may be implied from the PROPOSAL.

  • Process guarantees;
  • Feasibility studies for use by financiers;
  • Due diligence;
  • Procurement;
  • Personnel secondment;
  • Construction management; or
  • Construction.

2. In providing the SERVICES, OPTIMUS will exercise the degree of skill, care and diligence which would reasonably and ordinarily be expected from a skilled, competent and experienced professional providing services that are similar to the SERVICES.

3. The CLIENT must, within the time set out in the PROPOSAL, provide OPTIMUS with all information necessary for OPTIMUS to perform the SERVICES. OPTIMUS will not be liable for any loss or damage suffered by the CLIENT or any third party (including, without limitation, delay) caused by incomplete or inaccurate information provided to OPTIMUS.

4. Unless otherwise agreed in writing, the SERVICES are provided for the exclusive benefit of the CLIENT and OPTIMUS accepts no liability to third parties with respect to the SERVICES. If the CLIENT makes the SERVICES available to any third party, the CLIENT must (i) indemnify OPTIMUS from and against all claims, demands, actions, costs, liabilities, expenses, damages and proceedings (including reasonable legal and other associated costs of defending or settling any action or claim) made, suffered or incurred by OPTIMUS at the suit of any such third party, and (ii) mark any document (whether electronic or in hard copy) that originates from OPTIMUS pursuant to the SERVICES with a clear disclaimer of any liability on the part of OPTIMUS to any third party.


Interpretation

5. In this CONTRACT:  a party which comprises of two or more persons/entities means each of them jointly and severally;  the use of the word “include” or its derivative forms do not imply any limitation; and  these terms and conditions will prevail in the event of any ambiguity or inconsistency with the accompanying PROPOSAL.


Duration

6. This CONTRACT shall commence on the date detailed in the PROPOSAL and subject to the provisions of this CONTRACT, shall continue in force for the period specified in the PROPOSAL, unless terminated in accordance with clause 30.


Acceptance

7. Acceptance of the SERVICES by the CLIENT shall be given in writing upon client approval of each deliverable, but shall also automatically occur thirty (30) days from the date of OPTIMUS’ submission of a deliverable, unless the deliverable is notified as being defective in accordance with clause 18.


Payment

8. The CLIENT agrees to pay OPTIMUS for the SERVICES in accordance with the provisions detailed in the PROPOSAL and for any reimbursable expenses (plus 7% on such expenses) as set out in the PROPOSAL, together with any applicable tax or duty due thereon. The CLIENT also agrees to pay OPTIMUS for any other amounts related to any variation of SERVICES directed, or agreed to, by the CLIENT.


Escalation

9. Unless otherwise stated in the PROPOSAL, where this CONTRACT is in force for a period greater than twelve (12) months, the parties agree that OPTIMUS may review and increase its rates at the end of each twelve (12) month period. OPTIMUS shall give the CLIENT at least five (5) working days written notice of any such increase.

10. All monies payable to OPTIMUS for the SERVICES performed must be paid within thirty (30) days of the CLIENT receiving an invoice for the SERVICES. Monies not paid within that period will attract interest until payment at an annual rate of 5% above the Bank of England base lending rate (calculated daily from the due date) plus any debt collection fees.

11. If the CLIENT is in breach of any obligation to make payment to OPTIMUS, OPTIMUS shall be under no obligation to the CLIENT to continue to perform the SERVICES, which will not amount to a waiver of any right to reclaim any unpaid amounts.


Taxes

12. OPTIMUS shall be responsible for the direct payment of all UK income, sales, corporation, excise, use and other UK taxes imposed on OPTIMUS and/or its employees and subcontractors in connection with the performance of the SERVICES.

13. Unless otherwise stated in the PROPOSAL, the rates and prices set out in the PROPOSAL do not include for the cost of any nonUK taxes, and the rates shall be adjusted accordingly where any non-UK taxes are applicable to the SERVICES or any payments made hereunder, even if such taxes are not identified until after expiry or termination of this CONTRACT.

14. Where the CLIENT is required by law to withhold taxes, the CLIENT shall withhold the sums legally due and shall furnish original tax receipts to OPTIMUS for all taxes paid by the CLIENT on behalf of OPTIMUS. Where the Contract rates have been adjusted to allow for such withholding and OPTIMUS subsequently successfully reclaims any foreign tax paid over on its behalf, it shall promptly reimburse the rebated sum to the CLIENT. Doc Nr: XXX-XXX-CO-MSC-001 Page 2 of 4


Insurance

15. Each party shall procure and maintain, at its own expense, insurance covering its liabilities arising from this agreement. FOREIGN TRAVEL

16. Where foreign travel is required by OPTIMUS in order to perform the SERVICES set out in this CONTRACT, the CLIENT shall provide:

i) all necessary visas, work and resident permits, licences, permissions, currency exchange control permits, custom duties exemption certificates, tax exemption documents or any other license or permit required by OPTIMUS for the performance of the services;

ii) adequate office accommodation during business trips as reasonably required by OPTIMUS for OPTIMUS employees engaged on services and secretarial, typing, photocopying, post, telephone, facsimile and e-mail facilities, and courier services and such other services as necessary for the performance of the services; and suitable transport (with drivers if required) for the purposes of OPTIMUS employees whilst engaging in the performance of the SERVICES.


Suspension

17. In the event that any of the governments of the United Kingdom, The United States of America, Canada, Australia or the European Union, recommend all of its citizens to depart from any country within which the CLIENT has required OPTIMUS to undertake a business trip, OPTIMUS shall have a right to suspend performance of the SERVICES within that country without incurring any liability to the CLIENT as a result of such suspension.


Warranty

18. If OPTIMUS fails to perform any of the SERVICES in accordance with this CONTRACT, OPTIMUS’ sole liability, subject to the limit set out in clause 26 shall be to re-perform the relevant SERVICES at no cost to the CLIENT within a period of six (6) months from the initial completion of the SERVICES. The CLIENT shall be solely responsible for the use of any design, information, opinions or advice provided under these SERVICES including any provision of such design, information, opinions or advice to third parties.

19. OPTIMUS shall not be liable to make good any defect in the SERVICES due to drawings, designs or specifications not prepared by OPTIMUS and/or the work of any other person employed by the CLIENT and/or the use of materials and goods supplied or specified by the CLIENT.

20. Without in any way limiting the foregoing, by entering into this CONTRACT, the CLIENT acknowledges that the SERVICES (including any reports or documents provided by OPTIMUS in the course of performance of or in connection with the SERVICES) are performed and provided by OPTIMUS for the exclusive benefit of the CLIENT. The CLIENT acknowledges and agrees that:

i) OPTIMUS accepts no liability to any person other than the CLIENT in respect of any claim arising out of or in connection with the SERVICES (including any reports or documents provided by OPTIMUS in the course of performance of or in connection with the SERVICES) or any relationship established by this CONTRACT whether arising in contract, in tort (including but not limited to negligence), in equity, by operation of statute or under any law or otherwise;

ii) Any reports or documents provided by OPTIMUS in the course of performance of or in connection with the SERVICES have been prepared pursuant to the Scope of Work provided by the CLIENT to OPTIMUS and are based on the information that was made available to OPTIMUS during the process of preparing said reports or documents; and

iii) OPTIMUS does not accept any liability for any reliance on the information provided by the CLIENT or any third party as part of the SERVICES (including that within any reports or documents provided by OPTIMUS in the course of performance of or in connection with the SERVICES).


Indemnities

21. CLIENT and OPTIMUS each agree to indemnify, defend, and hold the other harmless from and against any liability for injury to or death of their respective employees or damage to or loss of use of their respective equipment or property, regardless of the cause or reason therefore, and regardless of the negligence of the indemnified party. However, nothing in this CONTRACT shall limit or exclude the liability of either party to the other for death or injury to persons caused by negligence which cannot by law be limited or excluded.

22. The CLIENT will indemnify OPTIMUS and its respective subsidiaries and/or affiliates and the officers, agents, employees and authorised representatives of the foregoing from and against any and all claims, demands, suits, actions, legal or administrative proceedings whatsoever and howsoever arising, that are, or may be, made by or on behalf of any third parties and from any losses or damages of any name or nature (including solicitor’s costs, expenses and interest) arising therefrom or in connection therewith whether arising before the completion of the CONTRACT or SERVICES or within six (6) years after completion of the CONTRACT or the SERVICES and in any manner caused, or claimed to be caused, occasioned or contributed to in whole or in part, by reason of any act, omission fault or negligence (whether active or passive) of the CLIENT, its suppliers, subcontractors or anyone acting or purporting to act under its direction or control or on the CLIENT’s behalf. This indemnity shall expressly include indemnity by the CLIENT to OPTIMUS for property damage and injury to or death of any third party including any person who is employed by or acting under the direction or control of the CLIENT, and for any cost incurred or any penalties or fines suffered by OPTIMUS pursuant to any statute, law or regulation concerning greenhouse gas emissions, environmental incident or damage and / or pollution, as a result of the provision of SERVICES.

23. OPTIMUS will not be liable for any costs or damages due to any delay in performance of the SERVICES, nor any liability (howsoever arising or caused) arising out of or in connection with pollution or contamination.

24. For the avoidance of doubt, OPTIMUS’ liability will be reduced proportionately to the extent that a breach of this CONTRACT, breach of a relevant law or negligent act or omission of the CLIENT or its employees, agents or contractors contributed to any claim, action, damage, loss, liability, expense, outgoing or payment. Doc Nr: XXX-XXX-CO-MSC-001 Page 3 of 4

25. Notwithstanding any other clause in this CONTRACT, neither party is liable to the other party for any (a) indirect or consequential loss, (b) loss of profits or anticipated profits, opportunity, revenue, goodwill, or contracts or (c) loss of data or (d) loss arising from business interruption, even in each case if OPTIMUS has been advised of the possibility of such loss or damage.

26. OPTIMUS’ total liability under this CONTRACT will be limited in aggregate and will not exceed the fees payable to OPTIMUS for the SERVICES.


Intellectual Property

27. All rights, title and interest in and to any intellectual property including, without limitation, any copyright, moral right, trade mark, patent, design or any other intellectual property right as well as any discovery, invention, secret, process or improvement in procedure made, developed or discovered by OPTIMUS while performing the SERVICES is, and will remain, vested in OPTIMUS.


Confidentiality

28. The parties undertake to keep all information and/or material furnished, derived or created under this CONTRACT (whether in oral, written or electronic format) confidential and may only disclose any such information and/or material with the prior written approval from the other party or as required by law or the rules of an applicable securities exchange. The parties agree not to use any information and/or material furnished, derived or created under this CONTRACT for any purpose not expressly permitted under this CONTRACT.


Dispute

29. If a dispute arises between the CLIENT and OPTIMUS, 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 29 will prevent any party to a dispute from seeking interlocutory relief in respect of any such dispute.


Termination

30. Unless terminated under clause 30a or 30b, this CONTRACT ends on the date set out in the PROPOSAL.

a. Termination for Convenience: Either party may terminate this CONTRACT by giving the other party one month’s written notice to terminate.

b. Termination for Default: Either party may terminate this CONTRACT if the other:

  • commits a material breach and does not remedy that breach within thirty (30) days of being notified of the breach in writing; or
  • ceases or threatens to cease to carry on the whole or a substantial part of its business;
  • becomes unable to pay its debts as and when they fall due or makes an arrangement or composition with its creditors or an administrator or an administrative receiver or trustee is appointed over all or any of the assets of the defaulting party or the defaulting party goes into liquidation; or
  • is the subject of the commencement of any bankruptcy proceedings or the passing of a resolution or presentation of a petition for winding up (which is not dismissed, withdrawn or set aside within fourteen (14) days of presentation) or upon the appointment of a receiver over all or any of the assets of the defaulting party or the equivalent process in any other jurisdiction.

31. The expiry or termination of this CONTRACT for any reason shall not affect:

  • any rights, obligations and/or liabilities accrued before the date of termination or expiry; or
  • any rights, obligations and/or liabilities expressed to continue in force after and despite expiry or termination.

32. If this CONTRACT is terminated under clause 30a, or under clause 30b through the default of the CLIENT, then the CLIENT must pay OPTIMUS all due fees for SERVICES performed up to and including the date of termination, including any reimbursable expenses and any reasonable and unavoidable costs incurred by OPTIMUS as a direct result of the termination.

33. If this CONTRACT is terminated under clause 30b for anything other than a material breach through default of OPTIMUS, then the CLIENT must pay OPTIMUS all due fees for SERVICES satisfactorily performed up to and including the date of termination, including reimbursable expenses and any reasonable and unavoidable costs incurred by OPTIMUS as a result of the termination.

34. Where the termination is under clause 30b for material breach through default of OPTIMUS, where any SERVICES have not been satisfactorily performed, and OPTIMUS do not subsequently correct the defect in accordance with clause 18, the CLIENT shall have no obligation to make payment in respect of any defective part of the SERVICES, and shall pay only those sums due for SERVICES that have been satisfactorily performed.


Relationship

35. OPTIMUS is engaged as an independent contractor. Nothing in this CONTRACT constitutes a relationship of employer and employee, principal and agent, or partnership between OPTIMUS and the CLIENT. OPTIMUS agrees not hold itself out, in any way so as to bind the CLIENT.


Severability

36. Each of the provisions contained within this CONTRACT shall be construed as independent of every other such provision, so that if any provision of this CONTRACT shall be determined by any competent authority to be illegal, invalid and/or unenforceable then such determination shall not affect any other provision of this CONTRACT, all of which other provisions shall remain in full force and effect. Notwithstanding the above, if any provision of this CONTRACT shall be determined to be illegal, invalid and/or unenforceable, but would be illegal, valid and enforceable if amended, the parties shall consult together in good faith and agree the scope and extent of any modification or amendment necessary to render the provision legal, valid and enforceable and so as to give effect as far as possible to the intention of the parties as recorded in this CONTRACT. Doc Nr: XXX-XXX-CO-MSC-001 Page 4 of 4


Waiver

37. A failure or delay by either party to exercise any right or remedy under this CONTRACT shall not be construed or operate as a waiver of that right or remedy nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy. A waiver by either party of any breach of or a default under this CONTRACT shall not be considered a waiver of a preceding or subsequent breach or default. A purported waiver or release under this CONTRACT is not effective unless it is a specific authorised written waiver or release.


Third Parties

38. Neither party intends that any term of this CONTRACT shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this CONTRACT.


Variation

39. This CONTRACT may only be varied with the written consent of each party, and the variation shall take effect when it is agreed in writing.


Assignment

40. Neither party may assign, novate or otherwise deal with any right or obligation under this CONTRACT (whether in whole or in part) without the written consent of the other party.


Governing Law

41. This CONTRACT is governed by and is to be construed in accordance with the laws of England. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the English courts and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.


Entire Contract

42. This CONTRACT together with the documents referred to herein, sets out the entire agreement and understanding between the parties and supersedes and extinguishes all prior agreements and understandings, any prior drafts and all previous contracts whether or not in writing between the parties in relation to its subject matter. No modification shall be effective unless it is in writing and executed by both parties.


Notices

43. All notices and communications required or permitted to be given under this agreement to either party shall be sent to the personnel and addresses detailed within the PROPOSAL.


Bribery

44. Each party shall:

  • co-operate with the other in respect of any requirement of anti-bribery and anti-corruption laws including but not limited to the UK Bribery Act 2010, and
  • co-operate with any reasonable requirement of the other to secure compliance with such legislation, and
  • maintain its own policies and procedures to secure such compliance.