Terms & Conditions

The equipment, materials, and/or services (collectively “Products”) will be sold by IAL ENGINEERING SERVICES LTD (“IAL”) to the entity to which IAL is selling the Products (“Buyer”) only upon the following terms and conditions:

 

1.        APPLICATION:

a.        None of these terms and conditions may be added to, modified, superseded or otherwise altered, except by a written instrument drafted and signed by an officer of IAL and delivered by IAL to the Buyer.  Each shipment received by Buyer from IAL shall be deemed to be only upon the terms and conditions set forth herein, except as they may be added to, modified, superseded or otherwise altered as provided below, notwithstanding any terms and conditions that may be contained in any purchase order or other form of Buyer and notwithstanding Buyer’s act of accepting or paying for the Products or similar act of Buyer.  Any order to perform work and IAL’s performance of work shall constitute Buyer’s assent to these terms and conditions.

b.       The submission of a quotation by IAL in response to Buyer’s request for a quotation does not constitute an expression of acceptance of any term or condition which may have been set forth in Buyer’s request.  Notwithstanding any prior quotations, correspondence, conversations, purchase price orders or similar instruments relative to the Products, the terms and conditions of sale set forth herein are the only terms and conditions applicable to the sale of the Products other than the quantity and the purchase price to be charged therefor.  Any additional or different terms or conditions of sale set forth in the purchase order or other communication from Buyer are objected to by IAL and shall not be effective or binding unless agreed to in writing drafted by an officer of IAL.

c.        A sales confirmation or similar form issued by IAL pursuant to a Buyer’s purchase order constitutes an expression of acceptance of such purchase order, but such expression of acceptance is expressly condition upon Buyer’s assent to these terms and conditions, which assent will be deemed to have been given unless notice to the contrary is received by IAL within ten (10) days from the date of the sales confirmation date.  Any additional or different terms or conditions of sale set forth in the purchase order or other communication from Buyer are objected to by IAL and shall not be effective or binding unless agreed to in writing drafted by an officer of IAL.

d.       Where IAL does not issue either quotation or a sales confirmation and ships Products pursuant to Buyer’s purchase order, such sale shall be subject to these terms and conditions and Buyer shall be deemed to have agreed thereto unless Products are returned to IAL with ten (10) days of date of invoice, in which event such sale shall be cancelled for all purposes. 

e.        Any oral or written representation, warranty, course of dealing or trade usage not contained in these terms and conditions shall not be binding on either party.

 

2.        PRICES AND TERMS OF PAYMENT:

a.        Unless otherwise specified in these terms and conditions or on a IAL quotation, sales confirmation or invoice, the prices which are on any such quotation, sales confirmation or invoice issued by IAL are prices F.O.B. IAL’s facility in San Fernando, Trinidad, W.I., as determined by IAL in accordance with Section 3, “SHIPMENT” which are in effect on the date of issuance and are subject to change without notice. 

b.       Prices in any quotation or sales confirmation do not include sales, use, excise or other taxes or import duties, documentation charges, freight, transfer fees or similar costs or charges, unless specifically indicated.  An amount equal to any sales, use, excise or other tax which may be imposed on the sale or use of the Products, as well as all of the other above mentioned costs or charges, shall be added to the prices set forth on such quotation, sales confirmation or invoice.  Buyer shall be responsible for and shall indemnify, defend, and hold IAL harmless for any such taxes or costs imposed by any governmental authority upon IAL or its employees or subcontractors due to the execution of any agreement or the performance of or payment for work hereunder.

c.        Unless otherwise agreed in writing, Buyer shall pay IAL all invoiced amounts in United States dollars, without right of set-off, within thirty (30) days following the date of invoice.

d.       Any amount unpaid at the end of thirty (30) days from the date of invoice shall bear interest at the maximum rate allowed under applicable law, plus all costs of IAL’s collection efforts including reasonable attorney’s fees and court costs.

e.        Orders will be accepted subject to approval of the purchaser’s credit by IAL.  IAL, at its sole discretion, reserves the right to waive credit facilities and require progress payments or cash in advance, depending on the nature of the transaction.  If, at any time, IAL believes that Buyer’s financial condition does not justify the continuation of IAL’s performance, IAL may require full or partial payment in advance or may suspend or terminate the agreement.

f.         All orders accepted are subject to final review at IAL’s principal office.  Once accepted, orders cannot be cancelled by Buyer without written approval from IAL.  Acceptance of Buyer’s cancellation will be predicated upon Buyer’s payment of a cancellation charge to be determined by IAL. 

g.       Prices quoted include standard packaging only.  Any special handling or packaging will be subject to additional charges.

 

3.        SHIPMENT:

a.        In the absence of specific routing instructions from Buyer, IAL shall have the right to select the date of shipment, type of carrier and the routing of shipment on behalf of and for the account of Buyer.

b.       Unless otherwise previously agreed in writing, all Products are shipped F.O.B. IAL’s facility in San Fernando, Trinidad, W.I.

c.        Buyer shall give written notice to IAL of any claim for shortage, error in shipment or error in charges within ten (10) days after receipt of Products or such claims shall be deemed waived.

 

4.        DELIVERY DATES:

a.        Delivery times are approximate and are dependent upon prompt receipt by IAL of all materials and information necessary to proceed without interruption.  Products listed in IAL’s catalogue are not necessarily available for immediate delivery.

b.       Delivery dates will be computed at the later of the time IAL receives the Buyer’s order or the time IAL has the complete information necessary to process the Buyer’s order.

c.        Delivery dates are subject to changes caused by additions to or modification of the original order agreed to by both IAL and Buyer.

d.       Under no circumstances shall IAL or any affiliate have any liability whatsoever for loss of use or for any indirect or consequential damages as a result of delayed delivery.

e.        Unless otherwise agreed in writing, IAL shall have the option of partial or complete shipment of Products.

f.         If any Products cannot be shipped to or received by Buyer when ready and due to any cause not attributable to IAL, IAL will notify Buyer and then may ship Products to a storage facility, including a facility within the place of manufacture or to an agreed freight forwarder.  If IAL places Products in storage or if Products are detained at any port, all expenses and charges incurred by IAL, such as for preparation for and placement into storage, handling, inspection, preservation, insurance, storage, demurrage, removal and any taxes shall be payable by Buyer upon submission of IAL’s invoices.

 

5.        RETURNS:

a.        No Products will be accepted for repair or replacement without the prior written authorization of IAL.  In the event of such return, Buyer agrees to pay, and IAL may withhold a restocking fee on such Products designated by IAL, unless otherwise agreed.  Custom-built products may not be returned.

b.       All returns shall be subject to inspection and repair, and all repairs shall be made by IAL at Buyer’s expense, except for warranty repairs and other repairs which IAL determines are necessitated by damage caused by the sole negligence or wilful misconduct of IAL.

c.        Unless otherwise agreed, freight and handling charges on returns shall be at Buyer’s expense.

d.       Buyer shall be responsible for any loss or damage to IAL’s equipment, material or supplies, transported by Buyer or by any carrier or conveyance arranged for by Buyer.

 

6.        RISK OF LOSS:

Notwithstanding any other provisions to the contrary in these terms and conditions, the risk of loss or destruction of, or damages to, the Products shall pass to the Buyer when Products are made available for shipment from IAL’s facility.  No formal acceptance document is required for the transfer of title or risk of loss to Products.

 

7.        TITLE:

Title to the Products supplied hereunder and to any and all accessories and substitutions, shall remain in IAL, and Buyer hereby grants to IAL a first priority security interest in and to Buyer’s interest in Product and proceeds thereof, regardless of any delivery to the Buyer,  until Buyer has completed payment of the purchase price, plus accrued interest, if any, and fully performed all of the terms and conditions hereof.

 

8.        WARRANTY:

a.        IAL warrants the Products to be free of defects in material and workmanship for a period of twelve (12) months from the date of shipment.  This warranty does not apply to:

  1. Any Products which have been modified and/or subjected to misuse, neglect, accident, or improper handling, storage, installation, operation, or maintenance;
  2. Any Products which have been altered or tampered with, or on which corrective work has been done without IAL’s specific written consent;
  3. Any item which is purchased by IAL as a component part of the Products;
  4. Any item which is a component part of the Products where such item is furnished to IAL by Buyer;
  5. Any Products not manufactured by IAL but purchased for Buyer except to the extent to which such Products are covered by the warranty, if any, of the manufacturer thereof;
  6. The design on those jobs where IAL prepares shop drawings, tracing drawings or lists from designs furnished by others;
  7. Models or samples, which are furnished to Buyer as illustrations only of the general properties of IAL Products and workmanship and are not deemed guarantees of uniformity.

b.       THERE ARE NO WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, EXCEPT AS SET FORTH HEREIN.

c.        IAL’s liability under its warranty is expressly limited to the repair or replacement, at its sole option, of Products which prove to be defective within the warranty period as stated above.  These warranties and remedies are conditioned upon (a) the proper storage, installation, operation and maintenance of the Products and conformance with any proper operation instruction manuals provided by IAL or its suppliers or subcontractors, (b) Buyer keeping proper records of operation and maintenance during the warranty period and providing IAL access to those records, and (c) modification or repair of the Products only as authorized by IAL.  IAL does not warrant the Products or any repaired or replacement parts against normal wear and tear. 

d.       IAL will not be liable under this warranty for labour or other expenses to remove or reinstall the good, for transportation or freight on the good or any replacement good, for rig time or other heavy lift operations, for downtime, or for any other costs.  Any claim by Buyer made pursuant to IAL’s warranty shall be made immediately upon discovery and confirmed in writing within thirty (30) days after the discovery of the defect with respect to which the claim is made.  IAL shall have the right to inspect the Products claimed to be defective and shall have the right to determine the cause of such defect.  All products replaced or repaired by IAL under its warranty shall be replaced or repaired F.O.B. IAL’s facility in San Fernando, Trinidad, W.I.

e.        No repair, replacement or re-performance by IAL hereunder shall extend the applicable warranty period.

f.         The foregoing is IAL’s only obligation and Buyer’s only remedy for breach of warranty and by way of breach of contract, indemnity, strict liability, tort or otherwise, and Buyer agrees to indemnify and hold IAL harmless from all claims or liabilities in excess of or different from the above.  Any action for breach of this agreement must be commenced within one (1) year after the cause of action has accrued. 

 

9.        LIMITATION OF LIABILITY:

a.        The total liability of IAL for all claims arising out of or relating to the performance or breach of the contract or use of any Products or any order shall not exceed (a) the contract price or (b) if this agreement is a frame or master agreement under which Buyer places an order with IAL for the Products to be purchased, (i) the final price of the particular order under which the specific Product giving rise to the claim are supplied or (ii) US$10,000 if the claim is not part of any particular order.  IAL’s liability shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim that accrued prior to that date by commencing an action or filing an arbitration, as applicable under the terms and conditions of this agreement, before the expiration of the applicable statute of limitations or repose, but not later than one year after the expiration of such warranty period.

b.       IAL shall not be liable for loss of profit or revenues, loss of product, loss of use of Products or any associated equipment, interruption of business, cost of capital, cost of cover, downtime costs, increased operating costs, failure to detect any flaw in the subject matter of a test, loss of goodwill, lost opportunities, claims of Buyer’s customers for such damages, or for any special, consequential, incidental, indirect, punitive, or exemplary damages.

c.        If Buyer is supplying IAL’s Products to a third party, Buyer shall require the third party to agree to be bound by this Section.  If Buyer does not obtain this agreement for IAL’s benefit, Buyer shall indemnify, defend, and hold IAL harmless from and against any and all claims made by the third party in excess of the limitations and exclusions of this Section.

d.       IAL shall not be liable for any advice or assistance given under this agreement.

e.        For the purposes of this Section and any indemnity provisions in these terms and conditions, the term IAL shall mean IAL, its affiliates, subcontractors and suppliers of any tier, and their agents and employees, individually or collectively.

f.         The limitations and exclusions in this Section shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise.

g.       Buyer’s and IAL’s rights, obligations and remedies arising out of or relating to the Products are limited to those rights, obligations and remedies described in this agreement.  This Section shall prevail over any conflicting or inconsistent terms in the agreement, except to the extent that such terms further restrict IAL’s liability.

 

10.     INDEMNITY:

Buyer agrees to and shall indemnify, defend and hold IAL harmless from and against any liability, damage, loss, expense, claim or judgment arising from injury or death of any person or damage to any property resulting from or in connection with Buyer’s or its customers’ use, or any application, of any Products assembled, installed or provided by IAL or services performed by IAL, regardless of cause, except claims solely for repair or replacement of defective parts covered under Section 8:  “WARRANTY.”  This indemnity shall be limited to the extent necessary for compliance with applicable state and federal laws.

 

11.     INTELLECTUAL PROPERTY:

a.        If Buyer receives a claim that any Products or part thereof manufactured by IAL infringes a patent, Buyer shall notify IAL immediately in writing and give IAL information, assistance and exclusive authority to evaluate, defend and settle such claim.  IAL shall then at its own expense and option (1) settle such claim, (2) procure for Buyer the right to use such Product, (3) replace or modify it to avoid infringement, (4) remove it and refund the purchase price less a reasonable amount for depreciation, or (5) defend against such claim.  Provided such timely notice has been given by Buyer, IAL shall pay any costs and damages finally awarded on account of such infringement and, if the use of such Product is enjoined, IAL shall take at its option one or more of the action above.  With respect to any product not manufactured by IAL, the patent indemnity given by the manufacture thereof shall apply.

b.       IAL shall have no obligation or liability with respect to the above infringement indemnification based upon:  (a) any Products that have been altered, modified, or revised; (b) the combination, operation or use of any Products with other products when such combination is part of an allegedly infringing process; (c) failure of Buyer to implement any update provided by IAL that would have prevented the claim; (d) unauthorized use of Products, including, without limitation, a breach of the provisions of this agreement or (e) Products made or performed to Buyer’s specifications.

c.        This states IAL’s entire liability for indemnification for patent, trademark, copyright, and trade secret infringement for the Products.

d.       Notwithstanding the foregoing, with respect to any Products, or portions thereof, which are not manufactured or developed by IAL, only the indemnity of the manufacturer/developer, if any, shall apply.

e.        IAL shall have all right, title and interest in and to all statutory and non-statutory intellectual property rights worldwide, which are available to protect discoveries, ideas, designs, inventions, improvements, processes, works of authorship, trade secrets and other intellectual property of any kind including, without limitation, patents, copyrights, and all other rights available to protect trade secrets and confidential information, based in whole or in part on inventions, developments, or improvements created, conceived or reduced to practice by or on behalf of IAL in connection with any Product sold hereunder.

 

12.     CONFIDENTIALITY

a.        In connection with the agreement, IAL and Buyer (as to the information disclosed, “Disclosing Party”) may each provide the other party (as to the information received, “Receiving Party”) with Confidential Information.  “Confidential Information” means (a) all pricing for Products, (b) all terms of the agreement, (c) all information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure and (d) all information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of oral disclosure and is confirmed to be “confidential” or “proprietary” in writing within ten (10) days after disclosure.  The obligations of this Section shall not apply as to any portion of the Confidential Information that (i) is or becomes generally available to the public other than from disclosure by Receiving Party, its representatives or its affiliates, (ii) is or becomes available to the Receiving Party or its representatives or affiliates on a non-confidential basis from a source other than Disclosing Party when the source is not subject to a confidentiality obligation, (iii) is independently developed by Receiving Party, its representatives, or affiliates without reference to the Confidential Information, (iv) is required to be disclosed by law, a valid legal process, or a government agency, or (v) is approved for disclosure in writing by an authorized representative of Disclosing Party.

b.       Receiving Party agrees (i) to use the Confidential Information only in connection with the agreement and permitted use(s) and maintenance of Products, (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except to its employees, agents or financing parties who have a need to know for Buyer to perform its obligations under the agreement or to use and maintain Products.

c.        Confidential Information shall not be reproduced without consent, and Receiving Party shall return all copies of Confidential Information to Disclosing Party upon request.

d.       Nothing in this Section grants Receiving Party any license under any invention, patent, trademark, or copyright now or later owned or controlled by Disclosing Party.

e.        Buyer shall not disclose Confidential Information to IAL unless it is required to do so to enable IAL to perform work under the agreement.  If Buyer does disclose Confidential Information, Buyer warrants that it has the right to disclose the information, and Buyer shall indemnify and hold IAL harmless against any claims or damages resulting from improper disclosure by Buyer.

f.         This Section does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.

 

13.     FORCE MAJEURE:

a.        The date on which IAL’s obligations are to be fulfilled shall be extended for a period equal to the time lost by reason of force majeure which shall include but not be limited to acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority (de jure or de facto), war (declared or undeclared), riot, revolution, priorities, fires, strikes, labour disputes, material shortages, vendor non-performance, sabotage, epidemics, acts or omissions of Buyer or Buyer’s suppliers or agents, inability due to causes beyond IAL’s reasonable control to timely obtain necessary and proper labour, components, facilities, and transportation, or any other cause beyond IAL’s reasonable control.  The foregoing extension shall apply even though such cause may occur after IAL’s performance of its obligations has been delayed for other causes.

b.       If an event of force majeure extends for more than ninety (90) days and the parties have not agreed upon a revised basis for continuing the work at the end of the delay, including adjustment of the price, then either party, upon thirty (30) days written notice, may terminate the order in respect to the unexecuted portion of the work whereupon Buyer shall pay IAL its termination charges.

 

14.     COMPLIANCE WITH LAWS, CODES AND STANDARDS

a.        IAL’s obligations are conditioned upon Buyer’s compliance with applicable trade control laws and regulations.  Buyer shall not transfer, re-export, divert or direct Products other than to the ultimate country of destination specified on Buyer’s order or declared as the country of ultimate destination on IAL’s invoice, except as permitted by applicable laws.

b.       Notwithstanding any other provisions, Buyer shall timely obtain any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization, even if IAL applies for such authorization.  Buyer shall be solely responsible for obtaining, maintaining and/or effectuating any governmental authorizations or notifications, if any, required for the lawful performance of the services.  Delays in obtaining the export license shall extend the time for delivery accordingly.

c.        The contract price, delivery and performance dates and any performance guarantees will be equitably adjusted to reflect additional costs or obligations incurred by IAL resulting from a change in industry specifications, codes, standards, applicable laws or regulations.

 

15.     TERMINATION AND SUSPENSION

a.        Buyer may terminate the agreement (or any portion thereof) for cause if IAL (i) substantially breaches a material obligation which does not otherwise have a specified contractual remedy, provided that Buyer has provided thirty (30) days written notice of the breach and of Buyer’s intention to terminate and IAL has failed to commence and diligently pursue cure of the breach or (ii) becomes insolvent, makes an assignment for the benefit of its creditors, has a trustee appointed for the benefit of its creditors or files for protection from creditors under any bankruptcy or insolvency laws.  If Buyer terminates based on this Section, Buyer shall pay to IAL all portions of the contract price allocable to work performed and IAL shall pay Buyer the difference between the portion of the contract price allocable to the terminated scope and the actual amounts reasonably paid by Buyer to another supplier for that scope.

b.       IAL shall have the right to suspend or terminate the agreement (or any portion thereof) immediately for cause if (i) Buyer becomes insolvent, makes an assignment for the benefit of its creditors, has a trustee appointed for the benefit of its creditors or files for protection from creditors under any bankruptcy or insolvency laws, (ii) there is a force majeure delay lasting longer then ninety (90) days, (iii) any representation or warranty made by Buyer herein or in any document or certificate furnished by Buyer in connection herewith proves to be incorrect in any material respect, or (iv) Buyer materially fails to comply with any terms of the agreement, including, but not limited to, failure to make any payment when due.

c.        If the agreement (or any portion thereof) is terminated for any reason other than those set forth in Section 15.1 above, Buyer shall pay IAL all portions of the contract price allocated to all Products completed or partially completed before the effective date of termination, plus a cancellation charge. 

d.       Buyer shall pay any reasonable expenses incurred by IAL in connection with suspension or termination, including those for repossession, fee collection, demobilization/remobilization and storage costs during suspension.  Performance of IAL’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.

e.        Sections 8, 9, 10, 11, 12, 14, and 16 shall survive the termination or cancellation of this agreement.

 

16.     OTHER TERMS AND CONDITIONS:

a.        IAL reserves the right to modify the design of any Products without obligation or previous notifications, and IAL is not obligated to so modify Products previously or subsequently sold.

b.       Any agreement arising hereunder shall be construed in accordance with the laws of Trinidad and Tobago.  In no event shall the United Nations Conventions on Contracts for the International Sale of Goods apply.  Any dispute arising between Buyer and IAL hereunder shall be exclusively and finally settled by arbitration in Port of Spain, Trinidad and Tobago in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof.

c.        Notwithstanding the terms above, each party has the right at any time, at its option and where legally available, to commence proceedings, in a court of competent jurisdiction, to apply for interim or conservatory measures only.

d.       IAL may assign or novate any or all of its rights and obligations under this agreement, to any of its affiliates without Buyer’s consent, and may subcontract portions of the work, so long as IAL remains responsible for it.  The delegation or assignment by Buyer of any or all of its duties or rights under this agreement without IAL’s prior written consent is void.

e.        Should any clause, sentence or part of these Terms and Conditions be held void or invalid, such holding shall in no way affect the validity of the remainder, which shall remain in full effect.  The parties will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and is valid and enforceable.

f.         Failure to enforce any or all of the terms and conditions in a particular instance or instances shall not constitute a waiver or preclude subsequent enforcement thereof.

g.       These terms and conditions represent the entire agreement between the parties.  No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives.