All Services provided by the Company shall be subject to the following General Terms and Conditions unless otherwise agreed or stated by the Company in writing.
“Company” includes the Inchcape Shipping Services Group, Inchcape Shipping Services Group associates, subsidiaries and / or affiliated companies within the Inchcape Shipping Services Group of companies (or any company under the management control of one of the Inchcape Shipping Services Group of companies) used to perform the Marine Survey & Inspection Services.
These General Terms and Conditions constitute the entire agreement between (i) the Company, performing services as “Marine Consultants”, which expression includes acting as P&I Correspondents, Marine / Cargo Surveyors, Marine Warranty Surveyors, Loss Adjustors / Assessors, Claims Settling Agents, Port Captains, Technical Superintendents and any services of a similar or related nature agreed by the Company (hereinafter referred to as the “Services”) and (ii) any person(s) or bodies from whom instructions to act have originated (hereinafter referred to as the “Client”). These General Terms and Conditions will be deemed unequivocally accepted in full by the Client in the absence of any written notification to the contrary by the Client before the Company commences its Services.
2. Performance & Obligations
The Company shall be entitled to perform any of its obligations herein by itself or by any parent, subsidiary or associated companies or by independent sub-contractor, but the Company shall remain responsible for the carrying out of such obligations and shall be liable for the actions of the parties employed by the Company in accordance with these General Terms and Conditions. Where the Company procures the provision of certain Services solely in the capacity as an agent for the Client, the Company shall act solely on behalf of the Client in arranging a contract for the Services which contract shall then apply directly between the Client and the third-party contractor.
The parties agree that any information exchanged between them in connection with or arising out of the Services shall be treated as confidential and shall not be disclosed, released or shared with any third party without the other party’s express written permission, unless required to do so to perform the Services or required to do by an order of a competent court of law.
The Client acknowledges and agrees that the employees and subcontractors of the Company who perform the Services hereunder are a valuable asset to the Company and are difficult and costly to replace. Accordingly, the Client hereby agrees that for a period of twelve (12) months after completion of the Services it will not solicit any employee, independent contractor, independent consultant or subcontractor of the Company who performs any Services hereunder.
European Union - General Data Protection Regulation & UK Equivalent Legislation (“GDPR”).
The Client agrees that it shall comply with its responsibilities under GDPR as a Data Controller and shall indemnify and hold harmless the Company for any breach by the Client of GDPR.
If at any time in the performance of these Services the Company is required to receive, process, handle or store personal data, the Company agrees that it shall comply with and be bound by the European Union - General Data Protection Regulation and as a Data Processor under GDPR it shall comply with the following requirements in relation to the processing of personal data:
a. Not use a sub-processor without the prior written authorisation of the Client as the Data Controller;
b. Co-operate with supervisory Data Protection Agencies;
c. Ensure the security of data processed;
d. Keep records of data processing activities;
e. Notify any personal data breaches to the Client as the Data Controller;
f. Employ a data protection officer and appoint (in writing) a representative within the EU if needed;
Any issues with the above processing can be reported to Data.Protection@ISS-Shipping.com
Any Services provided by the Company, whether completed or interrupted for any cause whatsoever, shall involve the payment of fees by the Client to the Company upon receipt of an invoice from the Company, together with the reimbursement of expenses incurred as provided below. Unless otherwise agreed, fees charged will be in accordance with the Company’s current attendance fees, details of which will be made available on request. Where lump sum prices are agreed, any additional work required will be agreed prior to the commencement of the Company’s attendance. Normal working hours are based on an eight-hour day, five days a week.
Hours in excess of eight hours per day or spent at weekends or public holidays will be overtime hours and may be charged by the Company as such. Time for which the Company shall be entitled to charge includes the time spent on travel, waiting (if any), mobilization and demobilization, time spent on providing the required Services, as well as time spent on document review and report writing. Additionally, where warranted, the company may charge a minimal one-time administration fee along with a minimal transportation charge (which will be charged on a per Km basis). Payment of the fees and expenses shall be made within thirty days from the date of the invoice. Failing such payment, the Company shall be entitled to recover interest at the rate of 4% per annum above the applicable interbank offered rate prevailing at the time of any overdue payment.
Expenses and Disbursements
Travelling and transportation expenses if incurred, will be charged at cost. Accommodation and messing expenses if incurred, will be charged at cost. If accommodation and messing is provided by the Client, this is to be of a standard acceptable to the Company. All other expenses will be charged at cost plus 10%.
Force Majeure and Delays
In case the Company is hindered, delayed or prevented by an event of force majeure (which shall mean any event and/or condition outside the Company’s reasonable control), whether or not foreseeable, from carrying out the Services or providing the Services within the agreed time, the Company shall be allowed such extra time as is necessary to complete the Services from the time that the event of force majeure. In the event that force majeure continues for a period of thirty consecutive days either party shall be entitled to terminate this agreement by giving seven days’ written notice to the other party. The Company shall continue to be entitled to be paid by the Client all fees and costs incurred up to the date of termination. The Company shall not be responsible for any loss, damage or delay whatsoever arising from an event of force majeure.
All reports, statements, attestations and certificates or information and advice are given in good faith but without warranty as to the accuracy of that information or advice supplied.
The Company, its servants or agents, or sub-contractors shall not be held liable for any damages, loss, claims or expenses, direct or indirect, of whatsoever nature, howsoever arising, out of or in connection with any Services provided. Furthermore, any warranties to the extent that these have not been expressly set out in these General Terms and Conditions are specifically disclaimed. Nevertheless, if the Client suffers loss, damage or expense which is proved to be solely due to the negligence, gross negligence or willful default on the part of the Company, its servants or agents, or sub-contractors, the Company may pay compensation to the Client for its proved loss subject to Clause 9 below and subject always to the following limitation. By reason of the disproportionate nature of the potential losses when measured against fees payable by the Client to the Company, it is hereby agreed that the liability of the Company to the Client or to any third party associated in any way with the Client arising out of or connected to the Services being undertaken by the Company for the Client shall be restricted to an aggregate sum in respect of all and/or any such cases arising during or from the said Services equal to a maximum of five times the amount of the fees payable to the Company by the Client for the particular Services during which such claim(s) arose or a maximum of USD 75,000, whichever is the lesser.
Any claim against the Company must be made in writing and notified to the Company within 14 calendar days of the date on which the Client became aware or ought to have become aware of the circumstances giving rise to the claim and any claim not so notified shall be deemed waived and time barred. The Company shall in any event be discharged of all liability arising out of the Services unless suit is brought and written notice of it given to the Company within one year of the end of performance of the Services giving rise to such claim.
Consequential Loss Exclusion
Notwithstanding any of the provisions of these General Terms and Conditions, the Company will under no circumstances be liable for:
The Client hereby accepts liability for and indemnifies the Company against any and all claims, losses, damages, costs or liabilities of any sort in respect of or arising out of death, sickness or injury to any employee, officers of the Client or any of the Client’s agents or subcontractors employees or officers.
Further, the Client shall indemnify the Company for damage to or loss of any property or equipment owned by the Client, leased by the Client or belonging to third parties, arising out of the performance of the Services or used by any member of the Company or any sub-contractor of the Company for the purpose of the performance of the Services, regardless of cause, including the sole or contributory negligence of the Company, its agents or subcontractors or any of their respective employees or officers.
The Company carries professional liability insurance and workmen’s compensation and accident insurance in compliance with the Labour law and local requirements. In any event, the liability of the Company, its servants and agents to pay compensation for losses, damages, costs, injuries or liabilities of any sort, howsoever caused, shall in all cases be limited to the amounts covered by the said insurances and payable by the insurers by the way of indemnity of the Company. Copies of these insurances are available for inspection at the Company’s offices.
Client’s Agreement and Acknowledgement
The Client shall be responsible for the following:
Ethics, Bribery & Sanctions
Company is subject to the UK Bribery Act 2010 and the US Foreign and Corrupt practices Act 1977, as amended, as well as other applicable international laws or regulations in relation to ethics and bribery. If Company encounters a breach or believes that a breach of the relevant laws or regulations will occur in connection with the Services, Company will immediately notify the Client and if necessary, decline the appointment, discontinue from carrying out its obligations under these General Terms of Conditions or terminate this agreement, as appropriate. Company shall have no liability to the Client for any claims, losses, liabilities or expenses arising from the Company’s decision to decline the appointment, discontinue from carrying out its obligations under these General Terms and Conditions or terminating the Services due to circumstances covered under this Clause.
The Company shall have no liability to Client for any claims, losses, liabilities or expenses related to a breach of ethics or bribery laws or regulations, as described above and will not be required to continue performance of the Services or the General Terms and Conditions until the breach of the laws or regulations has been fully investigated and measures put in place to prevent any further breaches.
Company is legally bound to comply with European Union, UK and United States of America (OFAC) sanctions programmes, as well as any other similar applicable laws or regulations in other jurisdictions. If Company encounters a breach or believes that a breach of the relevant sanctions will occur in connection with the Services, Company will immediately notify the Client and if necessary, decline the appointment, discontinue from carrying out its obligations under these General Terms and Conditions or terminate this agreement, as appropriate. Company shall have no liability to the Client for any claims, losses, liabilities or expenses arising from the Company’s decision to decline the appointment, discontinue from carrying out its obligations under these General Terms and Conditions or terminating the Services due to circumstances covered under this Clause.
The Company shall have no liability to the Client for any claims, losses, liabilities or expenses related to the inability or unwillingness of the Company to perform any Services due to sanctions risks or issues.
All business conducted by the Company, including its interaction with vendors and intermediaries, is subject to its Code of Conduct and Ethics. The Code of Conduct and Ethics is designed to identify a set of aims, values and rules which govern how the Company and its employees will conduct business on behalf of the Company. A copy of the Code of Conduct and Ethics is available on request.
Applicable Laws and Jurisdiction
These General Terms and Conditions, any agreement between the Client and the Company and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with there or their subject matter shall be governed by and construed in accordance with the laws of England and Wales and shall be determined by arbitration in London pursuant to the London Maritime Arbitrators Association (LMAA) Terms current at the time when arbitration proceedings are commenced. The reference shall be to three arbitrators, one to be appointed by each party and the third, subject to the provisions of the LMAA Terms, by the two so appointed.
If any provision or part-provision of these General Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these General Terms and Conditions.