These terms and conditions of business constitute the entire agreement between Inchcape Shipping Services – Marine Survey & Inspection (hereinafter referred to as “the Company”) performing services as Marine Consultants which expression includes acting as P&I Correspondents, Cargo Surveyors, Marine Warranty Surveyors, Adjustors, Assessors, , Settling agents and any services of a similar or related nature (hereinafter referred to as “Services”) and person (s) or bodies from whom instructions to act have originated (hereinafter referred to as “the Client). These Terms and Conditions of business 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. If a court shall determine that any one or more of the provisions hereof are unenforceable for any reason, such provisions shall be deemed to be severed from the remainder of these conditions and such remaining provisions shall continue to stand and be enforceable.
(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 terms and conditions of business. 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 services which contract shall then apply directly between the client and the third-party contractor.
Any Services provided by the Company, whether completed or interrupted for any cause whatsoever, shall involve the payment of fees by the Clients to the Company upon receipt of the 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 day 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 travel and transportation time, waiting time, mobilization and demobilization time as well as time spent working on reporting. Payment of the price or fees and expenses shall be made within thirty days from the date of invoicing. Failing such payment, interest at the rate of 2% per month will be chargeable on the outstanding balance until such time as it is paid in full.
(4) Expenses and Disbursements
Travelling and transportation expenses will be charged at cost. Accommodation and messing expenses will be charged at cost. If accommodation and messing is provided by the Client, this is to be of an acceptable standard. All other expenses will be charged at cost plus 10%.
(5) Force Majeure and Delays
In case the Company is hindered or prevented by an event of force majeure, whether or not foreseeable, from carrying out the agreed Services or providing the agreed 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 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.
(6) Reports etc.
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 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 work carried out or Service provided whether in tort or in contract, due to any act, omission or error of whatever nature, whether or not negligent and howsoever caused. Furthermore, any warranties to the extent that these have not been expressly set out in these Terms and Conditions are specifically disclaimed. Nevertheless, if the Client suffers loss, damage or expense which is proved to be due to willful default on the part of the Company, its servants or agents, or sub-contractors which is committed with the intent to cause the same or recklessly and with knowledge that loss, damage, delay or expense would probably result, the Company may pay compensation to such person for his proved loss subject to clause 9 below and subject 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 total of five times the amount of the fees payable to the Company by the Client for the particular service during which such claim arose or maximum of USD 75000, whichever is the lesser. Any such claim must be made in writing within three months from the date the contractual work was terminated or should have been terminated, failing which no claim shall lie against the Company.
(8) Consequential Loss Exclusion
Notwithstanding ay of the contents of these Terms and Conditions of Business, neither the Company nor the Client shall be liable to each other for any loss of profit, loss of revenue, loss of contract, loss of business or any other consequential or indirect losses, howsoever arising, even if due to the negligence or default of the Company or the Client, or within the prior knowledge of the Company or the Client.
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 or agent of any member of the Client or by any of their respective servants, officers or agents regardless of cause including the sole or contributory negligence of any one or more of any member of the Company or any of their respective servants, agents or employees. Further, the Client shall pay compensation and indemnify the Company against any and all claims, losses, damages, costs or liabilities or any sort in respect of or arising out of death, sickness or injury to any employee, officer or agent of the Company, any company and/or individual associated with or sub-contracted to the Company and the Client and shall pay compensation and indemnify the Company for damage to or loss of any property or equipment owned by the Company, leased by the Company or belonging to third parties and used by any member of the Company or any sub-contractor of the Company for the purpose of performance of the contract between the Company and the Client.
The Company carries professional 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 Companies offices.
(11) Client’s Agreement and Acknowledgement
(a) The Client agrees and acknowledges to provide instructions to the Company, and sufficient information, in due time to enable the required Services to be performed effectively. Provide necessary access for the Company’s representative to goods, premises installations and transport.
(b) The Client agrees and acknowledges to provide any special instrument necessary for the performance of the required services.
(c) The Client agrees and acknowledges to take all necessary measures for the safe ty and security of working conditions, sites and installations during the performance of services and will not rely, in this respect on the Company’s advice whether required or not.
(d) The Client agrees and acknowledges to take all necessary steps to eliminate or remedy obstruction to or interruptions in the performance of the required Services.
(e) The Client agrees and acknowledges to inform the Company in advance of any known hazards or damages, actual or potential, associated with any order or samples or testing, including presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons.
(f) The Client agrees and acknowledges that the Company does not either by entering into a contract or by performing Services assume, abridge, abrogate or undertake to discharge any duty of the Client to any other person.
(g) The Client agrees and acknowledges to guarantee, hold harmless and indemnify the Company and its officers, employees, agents or subcontractors against all claims made by ay third party for loss, damage or expense of whatsoever nature including legal expenses and howsoever arising relating to the performance, purported performance or non-performance of any services to the extent that the aggregate of any such claims relating to nay one service exceed the limit mentioned in Condition “7” above.
(12) Applicable Laws and Jurisdiction
These conditions and any contract between the Client and the Company shall be governed by the laws in force at the material time in the country of the appointed office of the Company by the Client and any claim against the Company shall be subject to the non-exclusive jurisdiction of the courts of that country.