1.1 Definitions. In these Conditions, the following definitions apply
all and any laws, regulations, ordinances, directions or directives issued by any government or regulatory body which apply to or could apply to the Services and including, without prejudice to the forgoing, any sanctions imposed or agreed by the United Kingdom, United Nations, the European Union or the United States of America.
the charges payable by the Client for the supply of the Services in accordance with clause 5.
the person or firm who purchases Services from the Company
CW Kellock & Co Ltd (also trading as Eggar Forrester)
these terms and conditions as amended from time to time in accordance with clause 14.6.
the contract between the Company and the Client for the supply of Services in accordance with these Conditions.
Intellectual Property Rights
all patents, rights to copyright and related rights, trademarks, 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 other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
the Client’s order for Services as set out in the Client’s order OR the Client’s written acceptance of the Company’s quotation OR the client’s request for services whether in writing or by telephone.
all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010.
the services, supplied by the Company to the Client including, but not limited to: sale and purchase, including second-hand, new-building, recycling demolition; valuations; chartering activities including voyage, time and bare-boat charters and contracts of affreightment as well as post-fixture services.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes, e-mails and other electronic communications including, but not limited to, MSN, Yahoo, SMS messaging and social network media.
2.1 Unless otherwise agreed in writing, the Company acts as a ship-broker and provides the Services as agent to the Client;
2.2 Where the Company’s client is a principal (as opposed to another broker) then the Company warrants that it has appropriate authority to represent the principal; and
2.3 Where the Company’s client is another broker, then the Company warrants only that it has dealt with such broker in good faith as to the authority that broker possesses but the Company does not give a warranty as to that authority
3. Supply of Services
3.1 Unless otherwise agreed, the Company shall supply the Services to the Client as agent. For certain activities the Company shall supply the Services as a principal, these include ship valuations consultancy.
3.2 The Company shall use all reasonable endeavours to meet any performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Company shall have the right to make any changes to the Services which are necessary to comply with Applicable Laws 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.
3.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.
4. Client’s obligations and warranties
4.1 The Client warrants:
4.1.1 That it is either a principal or the authorised agent of a principal and, also, that it is accepting these Conditions not only for itself but also as agent for and on behalf of the principal;
4.1.2 that the terms of the Order are complete and accurate;
4.1.3 the Client shall co-operate with the Company in all matters relating to the Services;
4.1.4 the Client shall provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.1.5 the Client shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
4.1.6 the Client does not know of any fact or matter which could cause the performance of the Services to be in breach of Applicable Laws and that should it become aware of any such fact or matter, it will immediately notify the Company of it;
5. Charges and payment
5.1 The Company shall invoice the Client on completion of the Services or such other basis as the parties shall agree.
5.2 The Client shall pay each invoice submitted by the Company:
5.2.1 within 30 days of the date of the invoice; and
5.2.2 in full and in cleared funds to a bank account nominated in writing by the Company , and
5.2.3 time for payment shall be of the essence of the Contract.
5.3 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Client shall, on receipt of a valid VAT invoice from the Company , pay to the Company 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.
5.4 Without limiting any other right or remedy of the Company , if the Client fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of 3 per cent per annum above the then current Royal Bank of Scotland’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
5.5 The Client shall pay all amounts due under the Contract in full without any deduction or withholding and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Customer.
5.6 The Company has a general lien on all documents in its possession, custody or control for all sums due at any time to the Company from the Client on any account whatsoever.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
6.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party 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 Receiving Party’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 Receiving Party. This clause 7 shall survive termination of the Contract.
8. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.2 Subject to clause 8.1:
8.2.1 the Company shall be relieved of liability for any loss or damage if, and to the extent that, such loss or damage is caused by any cause or event which the Company is unable to avoid, and the consequences of which the Company is unable to prevent by the exercise of reasonable diligence;
8.2.2 the Company shall under no circumstances whatever 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; and
8.2.3 the Company’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1,000,000.00 (one million pounds Sterling).
8.3 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.
8.4 This clause 8 shall survive termination of the Contract.
9. Anti-Bribery Clause:
9.1 The Client shall:
9.1.1 comply with Policy Requirements;
9.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
9.1.3 comply with the Company’s Ethics, Anti-bribery and Anti-corruption Policies (annexed to this agreement at schedule one) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Client in connection with the performance of the Services;
9.2 Breach of this clause 9 shall be deemed a material breach under clause 12.1.1For the purpose of this clause 9, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
10. Applicable Laws and Sanctions:
10.1 The Client shall not require the Company to perform the Services if there is any possibility that in doing so the Company may contravene any Applicable Laws;
10.2 If, in the Company’s absolute discretion, the performance of the Services may infringe any Applicable Laws, the Company shall be entitled to suspend or cancel performance of the Services and in that event shall notify the Client. The Company shall not be liable to the Client for any consequences which result from the suspension or cancellation of the Services pursuant to this clause.
11.1 The Client shall save harmless and keep the Company indemnified from and against:-
11.1.1 all liability, loss, damage, costs, expenses, claims whatsoever (including, without prejudice to the generality of the foregoing, all duties, taxes, levies, fines, penalties or outlays of whatsoever nature levied by any authority in relation to the Services) arising out of the Company acting in accordance with the Client’s instructions, or arising from any breach by the Client of any warranty or obligation contained in these Conditions, or from negligence of the Client and;
11.1.2 without derogation from sub-clause 11.1.1, any liability assumed or incurred by the Company when, by reason of carrying out the Client’s instructions, the Company has become liable to any other party;
11.1.3 all claims, costs and demands whatsoever and by whomsoever made, in excess of the liability of the Company under the terms of these Conditions, regardless of whether such claims, costs, and/or demands arise from, or in connection with, a breach of contract, negligence or breach of duty of the Company, its servants, sub-contractors or agents.
12.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
12.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
12.3 Without limiting its other rights or remedies, the Company shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and the Company if the Client is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of S.123 Insolvency Act 1986, or if the client is based in a jurisdiction other than England and Wales, an equivalent or similar provision of the law of that jurisdiction.
13. Consequences of termination
On termination of the Contract for any reason:
13.1.1 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;
13.1.2 the Client shall return all of the Company 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;
13.1.3 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; and
13.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14.1 Force majeure:
14.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, act of God, war, 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 default of Company’s subcontractors.
14.1.2 The Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.1.3 If the Force Majeure Event prevents the Company from providing any of the Services, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.2.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
14.2.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at [9.00 am] on the [second] Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
14.2.3 This clause 14.2 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
14.3.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.3.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.4.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.4.2 If any invalid, unenforceable or illegal provision of the Contract 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.
14.5 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.6 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 Company.
14.7 Time Bar: Any claim by the Client against the Company arising out of the Service shall be made in writing and notified to the Company within 14 days of the date upon which the Client became aware, or ought reasonably to have become aware of any occurrence alleged to give rise to such claim. Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred. The Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of the Services unless suit be brought and written notice thereof given to the Company within twelve months of the date of the occurrence alleged to give rise to a cause of action against the Company.
14.8 Law and Jurisdiction: Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.