Terms & Conditions
Subject to agreement as to the Services, as set out in Clause 3 below, the following terms and conditions together with the details overleaf shall constitute the entire terms and conditions between the parties hereto (hereunder called the "Agreement") and shall supersede and override all other warranties, representations and terms and conditions whether express or implied, oral or written, including the Client's standard terms.
"Client" means the party at whose request or on whose behalf the Company provides services.
“Company” means Braemar Technical Services Ltd (incorporating The Salvage Association).
"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 where an overnight stay is necessary. Office charges are scaled to invoice value.
"Fees" means the fees charged by the Company to the Client and including any value added tax or equivalent where applicable and any Disbursements.
"Report" means any report or statement supplied by the Company in connection with instructions received from the Client.
Subject to any contrary definition of the Services which may be agreed in accordance with clause 3 hereof, “Services” means the services identified on the front of this Agreement.
The Company shall provide the Services solely in accordance with these terms and conditions. The Company will provide the Services utilising the knowledge of the Braemar Shipping Services Group and in accordance with Braemar group philosophy.
The Client will set out in writing the services which it requires the Company to provide. The Company will confirm in writing acceptance of those instructions, or alternatively, what services the Company is willing to perform in accordance with the Client’s instructions. An initial dialogue with the Client may be necessary, prior to the issue of written instruction, to enable the Company to fully understand and set out the scope of the Services.
In the event that the Services involves the survey of a vessel or any work or services to or concerning a product or article any of which contain latent defects which were not apparent at the time that the vessel was surveyed and could not reasonably have been expected to have been discovered by such survey (either by reason of lack of access to a vessel part, limited availability of time or otherwise) then the Company shall have no liability therefor.
In the event that it is intended that any vessel inspection or survey report is to be used, or relied upon by a third party, in order to make a decision on or to provide money for, the purchase of a vessel then these Terms and Conditions shall not apply and the Company shall issue an Engagement Letter type of contract with different terms and conditions and different fees which shall apply in place thereof. In such circumstances the Client shall not be entitled to use any report issued by the Company in any way until such Engagement Letter has been signed and returned by the Client. Even then, any disclosure of the report to a third party shall be subject to the restrictions and further requirements of the Engagement Letter.
Once the Company and the Client have agreed what services are to be performed, any subsequent variations must be promptly agreed in accordance with a procedure agreed between the parties. This shall be the means of a contract variation form specifying technical and commercial details, any variation of the delivery date and/or the deliverables as well as any additional costs involved. In the event of any delay in the Client signing the contract variation form, the Company shall be entitled to stop work until the contract variation has been signed and returned to the Company. Email confirmation will be accepted in lieu of a signed agreement.
5. Effectiveness of Terms and Conditions
These Terms & Conditions shall take effect on the earliest of the following events:-
(i) When the Client acknowledges receipt of the Terms, and the Company accepts the full work scope, as instructed by the Client and both parties have signed this Agreement.
(ii) When the performance of the work has commenced by the Company, unless the Client objects to these terms within 24 hours of the Company starting to provide the Services.
If practical, the Company may agree at the outset a fixed fee (net of VAT and disbursements) with the Client. If not practicable, the Company will offer to perform the work on an hourly or daily rate. The Company reserves the right to increase its hourly or daily rates at any time and shall give the Client reasonable notice of such increase. Where delays by the Client cause the Services to be extended beyond the time specified or the time originally anticipated, then the cost of the Services charged to the Client may be increased.
Unless otherwise agreed, the Company shall charge for legitimate expenses and disbursements incurred in connection with the Services. These may include travel and subsistence costs, reproduction of drawings, photography, courier charges and the hire of specialised equipment. Car mileage will be charged at £0.50 per mile (or local currency equivalent).
8. Payment Terms
(a) The Client shall pay the Company’s fees (together with any associated bank charges) punctually and in any event not later than 30 days following the relevant invoice date. If any part of an invoice is genuinely in dispute, the Client shall notify the Company immediately upon receipt of invoice as to any part of the invoice which is in dispute giving full reasons as to why a portion of the invoice is disputed and nevertheless pay the undisputed part within 30 days of the invoice date. The parties shall endeavour to resolve the disputed portion without delay. The Company shall be entitled to charge interest on a daily basis at the rate of 8% above the LIBOR rate per month on any overdue invoice or on any undisputed part thereof as appropriate. In any case where an invoice is more than 60 days overdue, the Company may stop work or withhold any deliverables on the contract which relates to the overdue invoice.
(b) Without prejudice to any rights of recovery which the Company might have against a third party, the Company shall treat the Client identified in the signed Agreement as the person responsible for paying for the work done, therefore the Company shall not need to be concerned as to whether the Client considers itself to be principal or agent nor shall the Company need to concern itself as to whether the Client is, or is not, paid by a third party.
(c) If the Company's advice or Services relate to a claim or a defence which may result in protracted discussions and/or litigation or any other protracted matter, the Company will submit interim invoices or pro forma invoices at regular intervals.
(d) Unless the Client can clearly show that the Company has performed its duties or the Services negligently, the Client must pay in full even though the outcome of negotiations, arbitration or legal proceeding was worse than the Client's expectations, or not in the Client's favour.
9. Obligations and Responsibilities
The Client undertakes to i) ensure that full information and instructions are given to the Company and in sufficient time to enable the required services to be performed effectively and efficiently; ii) procure all necessary access for the Company’s staff to goods, premises, vessels, installations and transport and iii) ensure that all appropriate safety measures are taken to provide safe and secure working conditions.
If the Client becomes aware of any claim or circumstances which might involve litigation or arbitration concerning or connected with the subject matter of this Agreement, the Client shall inform the Company immediately.
The Company shall procure that its staff shall use reasonable care and skill in the performance of the Services in accordance with good marine surveying/consulting practice.
The Company shall procure that its staff shall submit interim reports, site situation reports and a final report to the Client during and following completion of the agreed services describing the findings, assessments and inspection relating to the purpose of the Client's instruction, unless otherwise expressly instructed by the Client not to do so.
Both parties undertake not to disclose any information provided in confidence by the other party to any third party and the receiving party shall not permit access to such information by any third party unless the disclosing party expressly grants permission save where required to do so by an order of a competent court of law.
(e) Intellectual Property
Ownership rights to intellectual property resulting from the performance of the work created by the Company shall vest in and remain the property of the Company. The Client may disclose the report or document to a third party for whose benefit the instruction/contract was specifically commissioned.
(f) Conflict of Interest
The Company shall promptly notify the client of any matter, including conflict of interest, which would render it undesirable for the Company to continue its involvement with the appointment. The Client shall be responsible for payment of the fees due to the Company up the date of notification.
(a) The Company's maximum liability for professional negligence shall be i) the fee paid for the work OR ii) £100,000 whichever is the higher.
(b) The Company accepts liability for i) death or injury to persons to the extent caused by the proven negligent acts or omissions of the Company in accordance with the Unfair Contract Terms Act 1977 (as amended by subsequent legislation), ii) for direct damage to tangible property to the extent caused by the proven negligent acts or omissions of the Company, its employees, agents or subcontractors provided that the Company's liability for the same shall be limited to the coverage and indemnity limits provided under the Company's insurance policies (which are available for inspection on request).
(c) The Company has vicarious liability for the negligent acts or omissions of the Surveyor/Consultant and its other employees therefore the Client agrees that it shall not bring an action directly against individual Company staff members in respect of their acts or omissions.
(d) In any event, and notwithstanding anything contained in this Agreement, in no circumstances shall the Company be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise, howsoever, and whatever the cause thereof;
i) for any increased cost or expenses (except in respect of non-conforming work, where the Company’s liability shall be limited in accordance with sub-clause (a) above).
ii) for any loss of profit, business, contracts, goodwill, revenues, or anticipated savings, or;
iii) for any special indirect or consequential damage of any nature whatsoever (other than direct physical damage to tangible property where the Company’s liability shall be limited in accordance with sub-clause (b) ii) above).
11. Time Bar
Any claims against the Company shall be deemed to be waived and absolutely time barred upon the expiry of one year from the submission date of the report to the Client.
(a) The Company or the Client may without prejudice to any other rights it may have hereunder terminate this Agreement forthwith by giving notice in writing to the other party.
i. In the event of war, hostilities, civil war, rebellion, revolution, insurrection or other disturbance occurring in the Client’s or Company’s country or at a location where the work is to be performed.
ii. If the other party shall commit any material breach of the terms of this Agreement on its part to be observed or performed.
iii. If the other party compounds with or negotiates for any composition with his creditors generally or permits any judgement against the said “other party” to remain unsatisfied for 7 days.
iv. Being a company, the Client or Company shall call a meeting of its creditors or to have a receiver appointed over all or any of its assets or enter into any liquidation.
v. Being an individual, the Client shall die or have a receiving order made against them or become bankrupt.
(b) In the event that the Client shall be in breach of its obligations under this Agreement, the Company shall have the following options: (i) without prejudice to its entitlement to claim compensation for all work done (including work in progress) for all costs irrevocably incurred and for loss of profits, to terminate this Agreement by giving 14 days notice in writing to the Client of its intention so to do OR (ii) alternatively to claim compensation from the Client in respect of the breach and in respect of any additional costs incurred as a result thereof and an extension of time to complete the Services where appropriate OR (iii) to renegotiate this Agreement.
In the event of a suspension of this Agreement for reasons of breach by the Client, force majeure or for the convenience of the Client, the Company shall be entitled to payment by the Client of the following costs:
- The full costs of laying off (and re-hiring if necessary) any employees and consultants employed or hired specifically for the purposes of this Agreement such full costs to include any costs which the Company has necessarily paid to an employment agent.
- The costs irrevocably committed relating to the period of suspension by subcontractors, under a subcontract which relates to this Agreement
- Any other costs which the Company or its employees or agents have irrevocably committed in respect of the period of the suspension.
- Loss of the Company’s anticipated profit under this Agreement for the period of the suspension
Without prejudice to its rights hereunder the Company shall be entitled, at its option but shall not be obliged, to give notice of termination of this Agreement if any period of suspension continues for a period of more than 30 days.
In the event of termination of this Agreement for any reason whatsoever, the Company shall be entitled to payment by the Client for all irrevocably committed costs associated with the Services. Unless otherwise specified and agreed in writing, the term “irrevocably committed costs” shall include but not be limited to the following items:
- the cost incurred to the end of period of notice in developing any Services
- the full cost, including overhead, of employing and/or hiring any employees/contract staff specifically for the purposes of and for the period of the said Agreement.
- the full costs of terminating the employment of or laying off of any such employees,
- the costs of buying and/or hiring any materials, goods, plant, machinery or equipment specifically for the purposes of this Agreement,
- the costs irrevocably committed by subcontractors specifically for the purposes of this Agreement - even if this commitment extends beyond the expiry of the period of notice
- recovery of the costs of all Services properly completed and delivered to the customer
- recovery of the costs of Services completed but not yet delivered and work in progress
- recovery of any costs irrevocably committed by the Company even if this commitment extends beyond the expiry of the period of notice
- recovery of any monies due to the Company
- any removal costs or setting up costs
15. Force Majeure
(a) The Company shall not except as otherwise provided in these terms and conditions, be responsible for any loss, damage, delay or failure in performance resulting from any of the circumstances defined in sub-clause (b) below.
(b) The Company shall be excused from the performance of any of its obligations under this Contract if and in so far and for so long as such performance is delayed or prevented by the Client's acts or omissions (including, but not limited to failing to provide timely information, supplying incomplete or defective information, delaying the Contract start date, failing to provide material or facilities required by this Agreement), or by circumstances beyond its reasonable control including but not limited to delays on the part of Classification Societies or other bona fida bodies in granting or giving approval to any documentation or inspection or survey which requires approval, strikes, lock-outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, adverse weather conditions or prolonged power failure.
(c) In conducting any survey, the Company shall rely in good faith upon any information with which it is provided by any ships broker or yacht broker and /or any Classification Society or bona fida third party body and/or upon the instructions and information received from any apparently authorised employees or agents of the Client and the Company shall not be liable in respect of any act or omission or failure to advise or comment upon any matter which falls outside the scope of the Services or for any recommendation based upon the information or instructions with which it has been provided directly or indirectly by the persons or organisations referred to above.
The Company maintains normal insurance policies for the kind of risks which it undertakes, appropriate to the size of the Company, including insurance required by law as well as Professional Indemnity Insurance.
17. Sub-contracting and Assignment
The Company may sub-contract any of the Services provided under these conditions, subject to the Client's right to discuss such an appointment and to object on reasonable grounds. In the event of such a sub-contract, the Company shall remain fully liable for the due performance of its obligations under these conditions.
This Agreement may not be assigned in whole or in part by the Client without the specific written approval of a director of the Company which will not be unreasonably withheld.
18. Document retention
The Company shall retain all data, correspondence, documents and records that have a bearing on the Services provided to the Client for a period of 10 years after completion of the Services. The Client will be given the right to have their own disclosed documentation returned by the Company at the Client’s cost or destroyed upon completion of the Service.
19. Privity of Contract
This Agreement is intended to be a private contract between the parties hereto and it is not intended to confer any rights of enforcement on any third party (other than on a permitted assignee to whom it is actually assigned) even if any of the contract terms purport to confer a benefit on such a third party.
Any alteration to these terms and conditions shall not be effective unless agreed in writing by both parties.
If any part of these Terms and Conditions is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, then that provision shall, to the extent required, be severed and shall be ineffective, but shall not affect any other provision of these terms and conditions which shall remain in full force and effect.
22. Governing Law
This Agreement shall be governed by and construed in accordance with English Law and the Client submits to the exclusive jurisdiction of the English Courts or Arbitration in London, England. Nothing herein shall prevent the Company from enforcing in any country an award made by the above exclusive jurisdiction.