Tritec Marine - Business Terms & Conditions
1. APPLICATION - In these conditions, The Company shall mean Tritec Marine Limited and The Client shall mean the person who is employing the services of The Company. Unless otherwise expressly agreed in writing by The Company these conditions shall form part of any Contract, based on acceptance of any offer made by The Company. These conditions shall not only apply to the present transaction, but to all future business between The Company and The Client except where The Company expressly agrees otherwise in writing. These conditions apply to the Contract to the exclusion of any other terms that The Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Company's representatives, agents or other staff other than Directors of The Company have no authority to alter or amend in any way whatsoever these conditions of Contract. These conditions apply to all tenders, quotations or offers whether written or oral.
2. THE TIME OF PERFORMANCE - The Company shall use all reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the services. The Company will not be liable for any failure to comply with any such estimate or for any direct or consequential loss resulting therefrom. The Company 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 Company shall notify The Client in any such event. Where information, specifications, instructions or materials are to be supplied by The Client, The Client agrees to supply them to The Company within a reasonable time so as to enable The Company to perform on or by the date given. In any event, the timing of The Company's performance will commence from receipt of all necessary information supplied by The Client.
3. PRICES - The Company's charges are strictly net, unless otherwise expressly agreed in writing by The Company. The prices are based on the costs in force at the date of the tender. Orders are accepted only on the basis that the actual price payable under the Contract shall be The Company's price ruling at the date of the relevant invoice. If any extra cost is incurred by reason of any additional instructions, or any error or omissions in instructions submitted by The Client, or if The Client requests any special testing of the services or any variation of the specification, or design of any modifications to the services, then The Client shall bear any relevant extra costs. Such expenses will be reimbursed by The Client to The Company within fifteen (15) calendar days of The Company notifying The Client that such a sum is due, unless The Company’s tender expressly states that expenses are included.
4. TERMS OF PAYMENT - Unless otherwise expressly agreed in writing by The Company, The Client agrees to pay sums due to The Company fifteen (15) calendar days after the invoice date or completion of the Contract, whichever be the earlier. The Company shall have the right to charge interest on any overdue amount at the rate of 5 per cent per annum above the then current Bank of England's base lending rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount. Where performance of the Contract exceeds one month, payments will be made by instalment with invoices being raised on a monthly basis through to completion of the Contract. In the event that payment in respect of any instalment is not made within the time stipulated, The Company shall also be entitled to suspend performance until payment is made or The Company may, at its option, terminate The Contract and The Client shall pay to The Company any costs incurred and for loss and damage sustained by The Company consequent upon the termination. Any liability upon the Company is subject to the terms of payment and all other obligations of The Client being strictly observed. The Client shall not be entitled to withhold payment of any amount payable to the Company under any Contract or otherwise because of any alleged claim against the Company.
5. INFORMATION AND OTHER DOCUMENTS - All specifications, drawings and particulars of weight and dimensions provided by The Company are indicative only unless otherwise expressly stipulated by the Company in writing. All technical information supplied by The Company is subject to change without notice. Plans, drawings, specification and estimates must not be disclosed to any third party without the written consent of The Company. Plans, drawings, specification and estimates remain the property of The Company and The Client agrees to return all such documents at The Company's request. The Client acknowledges that The Company shall retain the copyright in all documents supplied by The Company at any time and in any circumstances.
6. EVENTS OUTSIDE THE COMPANY'S CONTROL - Should The Company be unable to fulfil any term or Condition of its Contract or should the fulfilment of any term or Condition of its Contract be made materially more onerous, by any cause or causes whatsoever and/or howsoever arising beyond The Company's control including but not limited to strikes, lock- outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, threatened act of war or war like operations, acts of terrorism, blockades or embargoes riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or other extraordinary weather conditions, epidemics or default of suppliers or subcontractors or any other cause whatsoever beyond the Company’s control, The Company shall not be liable in any way for any loss or damage arising directly or indirectly in connection with and/or in consequence of such cause or causes or in consequence of The Company's consequential non performance partial performance or delayed performance. If the event and/or cause outside of The Company’s control prevents The Company from providing any of the services contemplated under this Agreement for more than three (3) months, The Company shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Owner.
7. LIABILITY - (a) The Company shall not be liable to The Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including any losses that may result from a deliberate breach of the Contract by The Company, its employees, agents or subcontractors; (b) The Company's liability in respect of all other losses arising out of and/or in connection with the Contract, whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the reasonable cost of making good such failure or inadequacy of their services, provided always that The Company is notified and all relevant supporting documents provided within a period of 30 calendar days from the date of the alleged breach or act upon which The Client believes liability has arisen. Where no such notice is given and/or the relevant documents have not been provided by the Client to the Company any such claim(s) shall be deemed to be waived and absolutely time barred. Where The Company agrees to carry out such remedial work, the work shall be subject to the same terms and conditions as apply to the original work; (c) The Client agrees to accept the said limitation of liability in the place of and to the exclusion of any rights, remedies, warranties, conditions and other terms implied by statute or common law which are, to the fullest extent permitted by law, excluded from the Contract.
8. ASSIGNING/SUB-LETTING - (a) The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent;(b) The Client shall not, without the prior written consent of The Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
9. DETERMINATION - Without prejudice to its rights at common law or under statute, The Company shall be entitled to determine the Contract either - (a) on default in payment as already stipulated; (b) on interference with or obstruction of the regular progress of the Contract by The Client; (c) if the Contract is delayed for a period exceeding three (3) months by reason of an event outside the Company’s control as stipulated in Clause 6 and also including but not limited to a leak of instructions or information without which the Contract cannot proceed to substantial completion, delay caused by others engaged by The Client or for any cause without The Company's control; (d) if any steps of legal enforcement are taken against The Client or The Client's property or assets or any part thereof ;(e) if The Client being an individual or partnership make any offers or arrangements or composition of creditors or commit any act of bankruptcy, sign a trust deed for the benefit or creditors or if any petition for The Client's sequestration shall be presented or if The Client being a Limited Company should issue a notice to convene any meeting for the purpose of passing a resolution to wind up The Client or if such a resolution shall be passed, or if a Receiver, administrator, provisional liquidator or liquidator shall be appointed over The Client's undertaking property or assets or any part thereof and on any of these events occurring The Company may there upon by notice forthwith determine the Contract without prejudice to any claim or rights which The Company may otherwise make or exercise. Any notice given hereunder may be given by The Company at The Client's last known address.
10. CONSQUENCES OF TERMINATION - On termination of the Contract for any reason: (a) The Client shall immediately pay to The Company all of The Company’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, The Company shall submit an invoice, which shall be payable by The Client immediately on receipt; (b) The Client shall return all of The Company’s materials and any deliverables which have not been fully paid for. If The Client fails to do so, then The Company may enter The Client’s premises and take possession of them. Until they have been returned, The Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; (c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; (d) clauses in the Contract which expressly or by implication have effect after determination shall continue in full force and effect.
10. NOTIFICATION OF BREACH - The Company shall be under no liability whatsoever in respect of any claim made by The Client in respect of any alleged breach of the Contract or act, certificate or report upon which The Client believes liability has arisen by The Company unless The Company has been notified in writing together with supporting documentation by The Client to the Company within thirty (30) calendar days of the date of the Company’s final invoice. Where no such notice is given and/or the relevant documents have not been provided by the Client to the Company within 30 days of the Company’s final invoice to the Client any such claim(s) shall be deemed to be waived and absolutely time barred.
11. RIGHTS TO WITHHOLD PAYMENTS - The Client shall not withhold payment of any sums due to The Company by reason of nor shall The Client set off against any such sums any amount in respect of any alleged claim of The Client against The Company.
12. PATENT RIGHTS - The Client shall indemnify The Company against all damages, penalties, costs and expenses arising out of the infringement or alleged infringement of any patent or registered design involved in the supply of the services in accordance with The Client's specifications or instructions.
13. GENERAL - (a) The Contract shall in all respects be construed and operate as an English law Contract and in conformity with Law of England and Wales and both parties agree to refer all disputes to arbitration under the LMAA Rules, where the number of arbitrators is to be three, the seat of the arbitration is to be London and the arbitration is to be determined in English. . Should any individual term of these conditions of Business be finally held invalid by the arbitrators, that decision shall have no effect on the remainder of said conditions, (b) The Client will obtain at his own expense any consents which may be necessary for, or in connection with, The Company's performance of this Contract, and The Client shall indemnify The Company from all liability costs, and expenses and demand of any kind incurred by The Company in respect of any failure by The Client to obtain such consents; (c) A waiver by either party of the terms and conditions of this Contract and/or breaches will only be effective if it is in writing and shall apply only to the particular instance or instances in which such waiver occurs and shall not affect or impair the future continuance in force of such terms and conditions or the right to either party to avail itself of such terms or conditions upon any subsequent breach or breaches thereof; (d) in the case of any partial completion of any Order, for any reason, The Company shall be entitled to a quantum merit payment in respect of all work done by The Company without prejudice to its rights; (e) The heading to each Condition hereof shall be treated as for guidance only and shall not be deemed to form part of or construed with the conditions; (f) Any notice under this Contract shall be in writing and given to The Company or The Client as the case may be at their last known address or at such other address as either party may notify to the other. Notice may be by fax, email, first class mail, courier service or personal delivery. Notice by post shall be deemed to have been delivered 5 days after it has been posted in a correctly addressed pre-paid envelope and proof of posting shall be sufficient proof of service. Notice by post where The Client is resident overseas shall be by registered air mail.
14. SERVICE/LOAN LABOUR CONTRACTS - Where the Contract is for the provision of professional, technical or other staff to work under the sole instructions of The Client or his representative, The Client, by accepting the provision as such staff, shall indemnify The Company against all claims fordamages, penalties, costs and other expenses.
15. SURVEY/INSPECTION CONTRACTS - Where the Contract is for the survey or inspection of any vessel by The Company the following additional conditions apply to the Contract, which shall override any of the foregoing conditions in the event of conflict or incompatibility:(a) The report/certificate is issued solely to the person to whom it is addressed and under no circumstances shall the report or any part of it be issued to or relied on by any third party without the express written consent of The Company; (b) Subject to the acceptance of express written instructions to the contrary, The Company can inspect/survey only those parts of the vessel, her machinery, equipment or records (if made available) which were actually exposed, uncovered or readily accessible in the circumstances of the inspection/survey. The Company is unable to report on any other part of the vessel, her machinery or equipment, and shall be under no responsibility whatsoever in such respect, and, any report is prepared on the basis of conditions found at the time of the inspection/survey and on the assumption that unreported/uninspected/unsurveyed matters are in order; (c) Unless specifically agreed in writing in advance and any necessary facilities provided, The Company is unable to test or advise on the suitability of the vessel or any part of it or its machinery or equipment for any intended business or trade, or the stability characteristics of the vessel; (d) In no circumstances whatsoever shall The Company be liable for any loss or damage of any kind whatsoever caused arising there from; (e) Written notice of any claim against The Company giving particulars of the alleged claim must be delivered to The Company within fifteen (15) calendar days from the date of the alleged breach, act, certificate or report upon which The Client believes liability has arisen. In default of such notice all and any claims shall be deemed to be waived and barred absolutely; (f) Under no circumstances whatsoever shall the liability of The Company to which the alleged breach, act, certificate or report relates exceed ten times the annual fee payable in total, regardless of whether it is a single incident or series of incidents giving rise to a claim;(g) The parties hereto shall submit to the exclusive Jurisdiction of the English Courts and the relations between the parties shall be governed by Law of England and Wales.