1. Definitions for these Conditions
‘Background IP’ — those works or parts of works severable from the Report and comprising those Intellectual Property Rights subsisting prior to the date of the Contract and developed independently of the Supplier’s obligations under the Contract or in connection with the Services including, without limitation, the template format of the report document on which the Report is to be completed.
‘Business Day’ — a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
‘Customer Change of Control’ — a change in the person who determines the affairs of the Customer by means of their shareholding, voting power or the terms of any constitutional document, but shall not include any change resulting from an internal reorganisation.
‘Charges’ — the charges payable by the Customer for the supply of the Services in accordance with condition 5.
‘Commencement Date’ — has the meaning set out in condition 2.1.
‘Conditions’ — these terms and conditions as amended from time to time in accordance with condition 21.2.
‘Contract’ — the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions, and, where applicable, any framework agreement entered into by the Supplier and the Customer.
‘Customer’ — the person, firm or company, who purchases Services from the Supplier.
‘Intellectual Property Rights’ — all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any and all intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
‘Order’ — the Customer's order for Services as set out in the Customer's purchase order form, or the Customer's written acceptance of a quotation by the Supplier, as the case may be.
‘Report’ — the report to be prepared by the Supplier in accordance with the Specification and the Order.
‘Services’ — the service supplied by the Supplier to the Customer as set out in the Order or described in any framework agreement entered into by the Supplier and the Customer.
‘Specification’ — the description or specification of the Services provided in writing by the Supplier to the Customer.
‘Supplier’ — Idwal Marine Services Ltd, whose registered office is 1 Caspian Point, Caspian Way, Cardiff, CF10 4DQ.
‘Supplier Materials’ — has the meaning set out in condition 4.1(h).
‘Vessel’ — any floating unit or storage unit and any other man-made structure designed for use at sea and whether or not fixed to the seabed, referred to in the Order.
A reference to writing or written includes electronic e-mail, telex, and cable; fax transmission and comparable means of communication.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care, skill and diligence and in accordance with normal professional standards within the shipping industry.
3.5 The Supplier shall be entitled to procure performance of its obligations hereunder by appointing a suitably qualified and skilled substitute to perform the Services on its behalf. Any such performance of all and any of the Supplier’s obligations by the substitute shall be and constitute full and sufficient performance by the Supplier of its obligations under the Contract. Any performance of the Supplier’s obligations by the substitute shall be without prejudice to the rights of the Customer for any failure by the Supplier in performance of the Supplier’s duties and obligations and notwithstanding performance by the substitute the Supplier shall remain solely responsible to the Customer for the performance of its obligations hereunder.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (‘Customer Default’):
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis and:
5.2 The Supplier shall invoice the Customer on completion of the Services.
5.3 The Customer shall pay each invoice submitted by the Supplier:
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (or equivalent) chargeable for the time being (‘VAT’) (if applicable). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (‘Due Date’), the Supplier shall have the right to charge interest on the overdue amount at the rate of four per cent (4%) per annum above the then current UK base lending rate accruing on a daily basis (but at 4% a year for any period when that base rate is below 0%) from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Customer is responsible for the payment of any bank charges and cannot deduct such charges from the contract amount, upon invoicing. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services, including in the Report, (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by, and are the exclusive property of, the Supplier.
6.2 The Supplier grants to the Customer a fully paid-up, worldwide, non-exclusive, royalty free perpetual and irrevocable licence to copy and modify the Report and any other materials provided by the Supplier to the Customer in connection with the provision of the Services, for the purpose of receiving and using the Services and the Report in its business.
6.3 All Intellectual Property Rights in the Background IP and arising out of or in connection with the Services shall be owned by, and are the exclusive property of, the Supplier.
6.4 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.5 All Supplier Materials are the exclusive property of the Supplier.
7.1 The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to them by the Customer, its employees, agents or subcontractors, and any other confidential information concerning the existence of the Contract, the Customer's business or its products or its services which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Supplier’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Supplier. This condition 7 shall survive termination of the Contract.
7.2 Notwithstanding the provisions of condition 7.1, the Supplier shall be entitled to disclose that an inspection of a Vessel has been conducted and, with the prior written consent of the Customer (such consent not to be unreasonably withheld) be entitled to disclose the Report to third parties, where it would not adversely affect the Customer’s commercial interests to do so.
8. LIMIT OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
8.2 Subject to condition 8.1:
8.3 The Supplier and Customer agree that having regard to the nature of the Services, the Charges paid for such Services by the Customer and all other circumstances known to the Supplier and the Customer relating to the Services, the foregoing limits of liability are fair and reasonable.
8.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This condition 8 shall survive termination of the Contract.
9. REPORTS AND INSPECTIONS
9.1. The Services are provided to the Customer and the Report provided by the Supplier is personal to, and for the private and confidential use of, the Customer. The Report is issued solely to the Customer. The Customer shall not reproduce the Report in whole or in part or in any way infringe the Intellectual Property Rights of the Supplier. The Report may not be relied upon by any other party without the express written consent of the Supplier.
9.2 Any inspection of a Vessel provided as part of the Services shall be, unless otherwise agreed in writing by the parties:
subject to the Specification set out in the Order;
limited to those areas of a Vessel which are visible, exposed, uncovered, readily accessible and made available to the Supplier;
superficial in nature, without any investigation into the water tightness or integrity, suitability for business or trade, operational efficiency or performance of the Vessel or her machinery or equipment; and
applicable only at the time and date the inspection is being conducted.
10.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect, without liability to the other party, by giving written notice to the other party if:
10.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer (i) is subject to a Change of Control or (ii) fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party five (5) days' written notice. In the event of such termination by the Customer, the Customer shall reimburse the Supplier for all work performed up to the date on which the termination takes effect and shall pay all costs and expenses reasonably incurred by the Supplier as a consequence of such termination.
10.4 Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in condition 10.1(b) to condition 10.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason:
12. FORCE MAJEURE
12.1 Force majeure:
a. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to:
b. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
c. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than four (4) weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
The Report is issued on the strict condition that nothing therein shall be deemed to relieve any designer, manufacturer, seller, supplier, repairer or operator of any warranty, express or implied and the Supplier’s liability shall be limited to the acts and omissions of its employees, agents or subcontractors and is subject to these Conditions for the provision of the Services. The Report is personal to, and for the private and confidential use of, the Customer and is issued solely to the Customer and the Customer shall not reproduce or make available, in whole or part, the Report without the prior written consent of the Supplier other than where required by law. The Report may not be relied upon by any other party without the express written consent of the Supplier.
14. RECOVERY OF SUMS DUE
Wherever under the Contract the Supplier considers that any sum of money is recoverable from or payable by the Customer, that sum may be deducted from any sum then due, or which at any later time may become due, to the Customer under the Contract or under any other agreement or contract with the Supplier.
15. ASSIGNMENT AND SUB-CONTRACTING
15.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
The Customer shall keep the Supplier and its employees, agents and sub-contractors indemnified and hold them harmless against all action, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them arising out of or in connection with the performance of the Contract, and against and in respect of all costs, losses, damages and expenses (including legal costs and expenses on a full indemnity basis) which the Supplier may suffer or incur (either directly or indirectly) in the course of the performance of the Contract. This indemnity shall not, however, apply to the extent that the relevant loss, claim, demand, damages, costs, charges, expenses or liabilities resulted from the negligence, gross negligence, fraud or wilful default of the Supplier or any of its connected persons. "Connected person" means any holding company, subsidiary or subsidiary undertaking of the Supplier or of any holding company of the Supplier and any director, officer, employee, agent or controlling person (as defined in securities laws of any relevant jurisdiction) of the Supplier or any holding company, subsidiary or subsidiary undertaking of the Supplier or of any holding company of the Supplier.
It is hereby expressly agreed that no employee or agent of the Supplier (including every sub-contractor from time to time employed by the Supplier and the employees or agents of any such sub-contractor) shall in any circumstance whatsoever be under any liability whatsoever to the Customer for any loss, damage, delay arising or resulting directly or indirectly from any neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions in this condition, every exemption, limitation, condition and liberty herein contained and every right, exemption from liability defence and immunity of whatsoever nature applicable to the Supplier or to which the Supplier is entitled hereunder shall also be available and shall extend to protect every such employee or agent of the Supplier acting aforesaid.
18. THIRD PARTY RIGHTS
Nothing in these Conditions shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999. No variation to these Conditions and no supplemental or ancillary agreement to these Conditions shall create any such rights unless expressly so stated in any such agreement by the parties. This does not affect any right or remedy of a third party which exists or is available otherwise than pursuant to that Act.
19. WAIVER AND SEVERANCE
19.1 No waiver of the Supplier's rights shall be effective unless in writing and signed by an authorised representative of the Supplier. A waiver shall only apply to the specific circumstances in which it is given and shall not effect the enforcement of the Supplier's rights in relation to different circumstances or the recurrence of similar circumstances.
19.2 If any court or competent authority finds any provision of these Conditions (or part of any provision) is invalid, illegal or unenforceable, that illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Conditions shall not be affected. If any invalid, unenforceable or illegal provision of the Conditions would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Any notice given pursuant to the Contract may be sent by hand or by post or by registered post or by the recorded delivery service or transmitted by telex, telemessage, facsimile transmission or other means of telecommunication resulting in the receipt of a written communication in permanent form and if so sent or transmitted to the address of the party shown on the Order, or to such other address as the party may by notice to the other have substituted therefor, shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.
21. PREVENTION OF CORRUPTION
The Customer shall not offer or give, or agree to give, to any member, employee or representative of the Supplier or any other third party any gift or consideration of any kind as an inducement or reward for doing or refraining from doing, or for having done or refrained from doing, any act in relation to the obtaining or execution of this Contract or any other contract with the Supplier or for showing or refraining from showing favour or disfavour to any person in relation to this or any such contract. The attention of the Customer is drawn to the criminal offences created by the Bribery Act 2010.
22. HEADINGS AND VARIATION
21.1 The headings to these Conditions shall not affect their construction or interpretation.
21.2 No variation of these Conditions or the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
23. GOVERNING LAW
These Conditions shall be governed by and construed in accordance with the laws of England and Wales and the Customer hereby irrevocably submits to the exclusive jurisdiction of the English and Welsh courts.
24.1 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
24.2 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.