Terms of Appointment

1. Definitions

Pirie and Smith Ltd. (“P & S”) is entity engaged under these Terms.

“Claims” means any and all claims for compensation, restitution or repayment, demands or liability (whether civil or criminal and arising in contract, tort or otherwise) for all and any losses, damages, fines, penalties, expenses and costs (including reasonable legal costs) of any kind in respect of loss or damage.

“Client” is the party at whose request or on whose behalf P&S undertakes consultancy services.

“Client Group” means the Client, its clients and its and their respective subsidiaries and affiliated companies, contractors and subcontractors of any tier (except any member of P&S Group), together with its and their agents, employees, representatives, directors, officers, servants, owners, shareholders, invitees, and insurers of each.

“Disbursements” means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable and appropriate expenses including travel, refreshments and hotel accommodation.

“P&S Group” means P&S, its parent, subsidiary and affiliated companies and their contractors and subcontractors of any tier, together with their agents, employees, representatives, directors, officers, servants, owners, shareholders, invitees, and insurers of each.

“Fees” means the fees charged by P&S to the Client and any Disbursements and including any value added tax where applicable.

“Proposal” means the document or other such written communication with the Client detailing the Services to be provided and Fees to be charged.

“Report” means any report or statement supplied by P&S in connection with instructions received from the Client. “Services” means the engineering services to be provided by P&S as detailed in the Proposal.

“Taxes” means all forms of taxation, duties, levies, imposts, charges or withholdings, direct or indirect, created or imposed by any taxing, fiscal or other authority of the relevant Government or Administration and (without prejudice to the generality of the foregoing) includes: (a) corporate tax, income tax, supplementary charges, sales tax, VAT and other forms of taxation, duties, imposts, charges or withholdings similar to, supplementing, or replaced by, the foregoing or any one of them, and (b) all penalties, charges, interest, fines, costs and expenses, loss of relief allowance or credit relating to any form of, or claim for, taxation or other imposition referred to in (a) above, but shall not include any tax imposed upon, or measured by, the net income of P&S.

“Terms” means these Terms of Appointment

2. General

P&S shall provide Services solely in accordance with these Terms to the exclusion of all other terms, whether express or implied, including any which the Client may purport to apply under any confirmation or instruction or similar document, and constitute the entire understanding between the parties. Any subsequent changes or additions to these Terms must be agreed by both parties in writing. Failure to enforce any or all of these Terms in a particular instance or instances shall not constitute a waiver thereof or preclude subsequent enforcement thereof.  All provisions herein which by their nature extend beyond the term of the performance of the Services shall survive such term until fulfilled and will apply to both party’s successors and assigns. If any part or parts are held to be invalid, the remainder shall remain valid and enforceable. The Services to which these Terms apply is made and entered into for the sole benefit of the parties, and their permitted successors and assigns, and no third party shall be a direct or indirect legal beneficiary of, have any rights under or have any direct or indirect cause of action or claim in connection with the Services.

3. Payment

The Fees for the Services shall be detailed in the Proposal. The Client shall pay P&S’s Fees punctually without deduction, counterclaim or set off in accordance with these Terms as detailed in the Proposal, and in any event not later than 30 days following the relevant invoice date, or in such other manner as may have been agreed in writing between the parties. Any delay in payment shall entitle P&S to interest at the maximum amount permitted by law. Should any outstanding invoice remain unpaid beyond thirty (30) days, P&S shall be entitled to suspend or terminate the Services without incurring any liability and without prejudice to any of P&S’s other rights or remedies available at law.

In the event that there is a change in the legislation of the country(ies) of operations or origin of payment, or in the interpretation of such legislation, including but not limited to Taxes or customs and excise duties of whatever nature which results in an increase in the costs P&S of performing the Services, the Client shall reimburse P&S the amount of the increase in such costs.

4. Taxes

All payments required to be made to P&S by the Client under these Terms shall be made without any deduction or withholding for or on account of any Taxes. If the Client is or was required by law to make any deduction or withholding for any Taxes from any payment due hereunder, then the gross amount payable will be increased so that P&S receives an amount that is no less than would have been received had no such deduction or withholding been required to be made. The Client shall indemnify and hold harmless P&S in respect of any interest and penalties arising as a result of the Client’s failure to deduct, withhold, or remit Taxes in accordance with relevant local legislation.

5 . Obligations and Responsibilities

(a) P&S shall use reasonable care and skill in the performance of the Services in accordance with sound practice.

(b) The Client undertakes to ensure that full instructions are given to P&S and are provided in sufficient time to enable the Services to be performed effectively and efficiently and to procure all necessary access for P&S to goods, premises, vessels, installations, equipment and transport. If P&S, at its sole discretion, believes that the site is not sufficiently safe to undertake the Services, it may suspend or terminate the Services until the site or premises are compliant. P&S shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions, or for any delays or costs associated with suspension or termination of the Services on safety grounds. In such event, the Client shall compensate P&S for all Services undertaken prior to termination or suspension, and for all work reasonably done in giving effect to such suspension and recommencement, or termination, as the case may be.

(c) P&S makes no warranties, express or implied, with respect to the Services or the provision thereof, including, without limitation, any warranty of merchantability or fitness for a particular purpose Responsibility for any reliance placed on the content of any Report or any associated communications lies solely with the Client.

(d) P&S undertakes not to disclose any information provided in confidence by the Client and marked as such to any third party and will not permit access to such information by any third party unless the Client expressly grants permission save where required to do so by an order of a competent court of law or in order to properly carry out the Services.

(e) The right of ownership in respect of all original work created or developed by P&S remains the property of P&S.

(f) Where Services are to be performed offshore, the Client shall provide, at no cost to P&S, all messing facilities and all routine and medivac transportation to point of origin for P&S personnel, and transportation for P&S equipment and materials between the designated onshore departure location or supply base and the offshore location.

6. Liability

(a) Save for the exclusion in 6(c) and 6(e), nothing in these Terms shall exclude or limit P&S’s liability for death or personal injury resulting from its own negligence or the negligence of its employees.

(b) P&S shall be responsible for, and shall indemnify and hold harmless the Client Group from, all Claims resulting from or relating to any personal injury, death and/or disease of any employee the P&S Group and for loss of or damage to or loss of use of property of the P&S Group arising out of or in connection with the performance of the Services whether or not contributed to or caused by the negligence or breach of duty (statutory or otherwise) of the Client Group.

(c) The Client shall be responsible for, and shall indemnify and hold harmless the P&S Group from, Claims resulting from or relating to any personal injury, death and/or disease to any member of the Client Group or for any loss of or damage to or loss of use of property owned or used by or leased to any member of the Client Group howsoever arising and whether or not contributed to or caused by the negligence in any form or to any extent or any breach of duty (statutory or otherwise) of any member of the P&S Group.

(d) Notwithstanding any other provision of these Terms, P&S shall not in any circumstances whatsoever have any liability whatsoever for any loss of profit, business, revenue, production, product, opportunity, goodwill or anticipated savings or any indirect or consequential loss or damage whatsoever, including without limitation loss or damages suffered by the Client Group as a result of an action brought by a third party.  This shall apply even where such a loss was reasonably foreseeable or P&S had been made aware of the possibility of such a loss.

(e) The Client shall indemnify and hold harmless the P&S Group from and against all and any Claims of whatsoever nature arising from or relating to seepage, pollution, contamination, escape or similar (including without limitation the cost of removal and clean-up) arising from, relating to or in connection with the performance or non- performance of these Terms and/or the Services howsoever caused or arising, save and only to the extent that such pollution emanates from the property of the P&S Group.

(f) Notwithstanding any other provision of these Terms, P&S’s maximum aggregate liability to the Client arising out of or related to these Terms or the performance or non-performance thereof and whether at law, in contract or tort (including negligence), or strict liability, and including any statutory interest, shall be limited to the aggregate Fees (but not including any Disbursements) paid for the Services and the Client shall defend, indemnify and hold harmless the P&S Group for all and any Claims in excess of this amount. The foregoing limitation of liability shall not apply to or be reduced by P&S’s liability in respect of its indemnity obligations pursuant to 6(a) and 6(b).

(g) Any Claims of whatsoever nature against P&S by the Client shall be deemed to be waived and absolutely time barred upon the expiry of three months from the completion of the Services.

7. Indemnity

Except to the extent and solely for the amount that P&S would be liable for under Clause 6, the Client hereby undertakes to keep P&S and its employees, agents and sub-contractors indemnified, to defend and to hold them harmless against all Claims which may be brought against them or incurred or suffered by them, and against and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which P&S may suffer or incur (either directly or indirectly) in the course of the Services under these Terms.

8. Insurance

The Client and P&S hereby warrant that they shall maintain levels of insurance sufficient to cover their respective liabilities and obligations. All such insurances shall be endorsed to provide that underwriters waive any rights of recourse including in particular subrogation rights to the extent of the liabilities and obligations assumed by each party hereunder.

9. Termination

Either party may terminate Services:

(a) in the event the other is in material breach of any of these Terms and has not rectified such breach within fourteen (14) days of written notice of such breach.

(b) other than for purposes of amalgamation, in the event the other passes a resolution or the court makes an order that it should be wound up or that an administrator be appointed, or makes a composition or an arrangement with its creditors, or if a receiver or manager or administrator on behalf of a creditor is appointed, or if circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the court to make a winding up order.

10. Force Majeure

Neither P&S nor the Client shall, except as otherwise provided in these Terms, be responsible for any loss, damage, delay or failure in performance hereunder arising or resulting from act of God, act of war, seizure under legal process, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people.

11. Sub-contracting and Assignment

P&S may sub-contract any part of the Services to its selected sub- contractors subject to the Client’s right to object on reasonable grounds.  Both parties shall have the right to assign freely the obligations or benefits hereunder to their parent or majority owned or controlled subsidiary companies or to majority owned or controlled subsidiary companies of their parent companies. P&S may at any time obtain the assistance of its affiliated group companies in the performance of the Services.

12. Independent Contractor

Nothing in these Terms shall be construed so as to create a partnership or joint venture between the parties or have the effect of making any employee of the Client a servant of P&S or of making any employee of the P&S an employee or servant of the Client. Neither of the parties shall act nor describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other’s behalf.

13. Notices

Any notices to be given under these Terms shall be in writing and sent to the relevant address or addresses contained in the Proposal by hand, electronic mail transmission, facsimile or prepaid post. Such notices shall be deemed to be received at once if sent by facsimile or electronic mail transmission and if sent by prepaid first class post within the United Kingdom shall be deemed to be served on the second business day after posting.  If a notice is sent to or from abroad by prepaid mail it shall be deemed to be served on the fifth business day after posting.

14. Jurisdiction and Law

These Terms shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.

Updated 1st July 2020. Revision 00