TERMS AND CONDITIONS
as at September 2019
Licensed in Fujairah Municipality
License No. 1011290
ARTICLE 1 – GENERAL
1.1 These General Terms and Conditions (the “Terms & Conditions”) are applicable and constitute a part of any offer, or contract for the sale of Goods or the provision of Services by LMS
1.2 LMS is fully licensed in Fujairah Municipality, United Arab Emirates to supply the Goods and/or provide the Services under the Contract.
1.3 In these Terms & Conditions, unless the context otherwise requires, the following terms and expressions have the following meanings:
(a) “Affiliate” with respect to a party, any company, partnership or legal entity directly or indirectly Controlling, being Controlled by or under common Control with that party, where “Control” means the legal power to direct or cause the direction of the general management of that company, partnership or other legal entity and/or the holding beneficially of more than fifty per cent (50%) of the issued share capital of that entity (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital) and “Controlled” and “Controlling” shall be construed accordingly.
(b) “Client” means the company named in the Proposal which is purchasing the Goods and/or the Services pursuant to the Contract.
(c) “Client Group” means the Client, its co-venturers, its and their respective Affiliates, its and their respective sub-contractors and its and their respective directors, invitees, officers, agents and employees but shall not include any member of the LMS Group.
(d) “Consequential Loss” means (i) consequential or indirect loss under English law; and (ii) loss and/or deferral of services, loss of product, loss of use, loss of opportunity, loss of revenue, profit or anticipated profit (if any) in each case whether direct or indirect, and whether or not foreseeable at the date of the Contract.
(e) “Contract” means the contract between LMS and the Client for the sale of the Goods and/or the provision of the Services, which consists of the: (i) the Proposal; and (ii) these Terms & Conditions.
(f) “Goods” means the goods, products, materials or equipment to be sold to the Client by LMS pursuant to the Contract as described in the Proposal.
(g) “Intellectual Property Rights” means patents, rights to inventions, utility models, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including Know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications for such rights and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
(h) “Know-how” means any and all technical information, practical knowledge, data, formulae, standards, processes, methods, techniques or practices relating to the performance of the Services by LMS, which are secret or otherwise not available in the public domain and which may or may not be recorded in some tangible form.
(i) “LMS” means Lighthouse Maritime Services LLC, a company incorporated and registered in Fujairah, the United Arab Emirates (Licence No. 1011290).
(j) “LMS Group” means LMS, its shareholders, its co-venturers, its and their respective Affiliates, its and their respective sub-contractors and its and their respective directors, invitees, officers, agents and employees but shall not include any member of the Client Group.
(k) “Proposal” means LMS’s proposal, including all attachments to it, submitted by LMS and agreed by the Client, describing the Goods to be sold and/or the scope of Services to be provided by LMS to the Client, including the time, payment and (if applicable) other terms for the sale of the Goods and/or the provision of the Services, and attaching or incorporating by reference these Terms & Conditions.
(l) “Services” means the consultancy or other services to be provided to the Client by LMS pursuant to the Contract as described in the Proposal.
(m) “Vessel” means the vessel owned, chartered, leased or operated by the Client as set out in the Proposal, with respect to which the Services or part thereof and/or the Goods or part thereof will be provided by LMS under the Contract.
1.4 Reference to Articles and paragraphs thereof, unless otherwise stated, to articles and paragraphs thereof of these Terms & Conditions.
1.5 Words importing the singular include the plural and vice versa. Words importing a gender include every gender and references to persons include bodies corporate or unincorporated.
1.6 Headings are inserted for convenience and shall not affect the interpretation of the Contract (including these Terms & Conditions).
1.7 These Terms & Conditions shall be deemed incorporated in, and shall form an integral part of, the Contract. In the event of any conflict or inconsistencies between any of the documents forming part of the Contract, the following order of priority will apply:
(i) the Proposal; and
(ii) these Terms & Conditions.
1.8 The Client shall be entitled to request a variation in the Goods or Services to be provided under the Contract. No such variation shall be binding on LMS unless and until it has been expressly accepted by LMS in writing and agreement has been reached between the parties in writing with regard to any additional payments for the Goods and/or Services (in each case, as varied), and any revised time periods applicable for the supply of the Goods and/or the performance of the Services (in each case, as varied) and any other consequential amendments in relation to the Goods to be supplied and/or the scope of Services and the Services deliverables to be provided and/or the terms of the Contract.
1.9 The parties’ agreement in relation to any variation in the Goods and/or Services to be provided under the Contract pursuant to Article 1.8 above shall be recorded in a contract variation form or an addendum to the Contract, which, once signed by both parties, shall take effect as an amendment to the Contract. Unless and until such a contract variation form or addendum to the Contract has been signed by both parties, LMS shall be entitled to continue the supply of the Goods and/or the provision of the Services in accordance with the Contract without any variation.
1.10 Except as provided in Articles 1.8 and 1.9 above and in Articles 8.2 and 8.3, no other variation to the terms of the Contract, including the introduction of any additional terms, shall be effective unless agreed in writing and signed by both parties.
ARTICLE 2 – OFFERS
2.1 A written offer set out in a Proposal submitted to the Client shall be valid for 10 days only, unless otherwise stated in writing by LMS in the Proposal and shall not be binding on LMS unless and until it is accepted in writing by the Client.
ARTICLE 3 – PRICES AND FEES
3.1 Unless specifically stated otherwise in the Proposal, all prices are net and no discounts will apply.
3.2 All prices or fee rates quoted in the Proposal exclude VAT and any other local sales taxes, export or import or customs duties or charges and, (if relevant and without prejudice to the provisions of Article 4), transport and packaging costs. If, after the Contract has come into effect or during the offer period, labor costs, currency exchange rates, export or import duties or other legal or supplier costs increase or are introduced, then LMS will be entitled to increase the relevant prices or rates set out in the Proposal proportionately and charge the Client with the prices or rates as so increased, providing a statement of its reasons.
ARTICLE 4 – PAYMENTS
4.1 The Client shall pay LMS for the Goods and/or the Services the prices and/or fees and other sums as provided in the Proposal. Payment shall be made at the time or times stated in the Proposal. Unless otherwise agreed between the parties, all payments sums invoiced by LMS pursuant to the Contract are to be made by the Client within 30 days of the invoice date.
4.2 In the event that the fees and/or price payable for the Services and/or Goods under the Contract are a fixed lump sum, this shall only cover the Services and/or Goods specifically stated in the Proposal and any services and/or goods supplied outside the scope of Services and/or Goods specifically stated in the Proposal shall be charged at the applicable rates and/or price list stated in the Proposal or, in the absence of such rates and/or price list, they shall be subject to separate agreement between the parties.
4.3 The Client shall pay all amounts due under the Contract in full and in a timely manner without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). If and to the extent the Client is required by any applicable law to deduct or withhold from any amounts payable to LMS under the Contract any sum in respect of taxes, duties or imposts:
(1) the Client shall: (i) make the necessary deduction or withholding; (ii) promptly pay the sum so deducted or withheld to the relevant authorities; and (iii) provide LMS with copies of all receipts (and returns filed) in connection therewith evidencing such payment; and
(2) the relevant amount payable to LMS under the Contract shall be increased so that the amount received by the Supplier, net of such taxes, duties or imposts, shall be the amount which would have been received but for such deduction or withholding.
4.4 Time for payment by the Client of any amounts payable under the Contract shall be of the essence of the Contract. If the Client fails to make any payment due to LMS under the Contract by the due date for payment, LMS shall be entitled to notify the Client in writing of such failure and require payment within three (3) business days after the date of the notice. In addition, the Supplier shall be entitled to (i) suspend the performance of its obligations under the Contract until all the outstanding invoices have been paid in full (in which case the provisions of Articles 9.4(a), 9.4(b), 9.4(c) and 9.4(d) shall apply); (ii) recover from the Client all expenses and legal costs arising out of any recovery of monies payable under the Contract; (iii) charge interest on the overdue amount at the rate of ten per cent (10)% p.a., such interest to accrue on a daily basis from the due date until actual payment of the overdue amount and to be compounded at quarterly intervals; and (iv) with respect to any Goods supplied under the Contract, the provisions of Article 6 shall apply.
4.5 If the Client’s failure to make payment of any amount due under the Contract continues for more than three (3) business days after the date of LMS’s written notice referred to in Article 4.4, LMS shall have the right at any time after the expiry of such three (3) business day period to terminate the Contract at any time thereafter by notice in writing with immediate effect, irrespective of whether LMS has exercised its right to suspend performance of any or all of its obligations under the Contract under Article 4.4 above. Such right shall be without prejudice to LMS’s rights and remedies under Article 4.4 and to any other rights and remedies available to LMS under the Contract or at law.
4.6 The Client may request, at any time, the itemised details of Goods and/or Services provided by LMS alongside fees and costs incurred and paid for and fees and costs incurred and not paid for to date, together with an estimate of Goods and/or Services which are yet to be provided, alongside fees and costs which will become payable to complete the parties’ performance under the Contract.
ARTICLE 5 – DELIVERY OF GOODS, COSTS & RISK
5.1 Unless expressly agreed between the parties to the contrary, all deliveries of Goods under the Contract are ex-warehouse/factory.
5.2 With respect to any Goods sold under the Contract LMS shall use all reasonable endeavours to deliver such Goods within any time periods or delivery dates indicated in the Proposal, but it is expressly agreed and understood between the parties that , unless express agreement to the contrary has been made between the parties, any such time periods or delivery dates are estimates only and time is not of the essence under the Contract with respect of delivery of the Goods.
5.3 Without prejudice to the provisions of Article 5.2, LMS shall:
(a) notify the Client in writing of the estimated time of actual delivery of the Goods as soon as practicable; and
(b) notify the Client in writing in case delivery of the Goods is expected to occur after the delivery period or the delivery date indicated in the Proposal and/or after the estimated actual delivery date notified under sub-paragraph (a) above. In such case, LMS shall also notify the Client of the new estimated time of actual delivery of the Goods.
5.4 Without prejudice to the provisions of Article 5.2, LMS shall not be liable for any delay in the delivery of the Goods beyond the estimated time of actual delivery notified in writing under Article 5.3(a) or beyond the new estimated time for actual delivery of the Goods notified in writing under Article 5.3(b), unless such delay was caused solely by the gross negligence or wilful misconduct of LMS. Nor shall LMS be liable for any such delay if and to the extent it was caused by a Force Majeure Event as defined in Article 19.
5.5 For the avoidance of doubt, any Goods sold and delivered under the Contract shall be at the Client’s risk from the time they are placed at the disposal of the Client or the Client’s agent or representative at the relevant warehouse or factory. Where applicable, the Client shall be fully and solely responsible for the transportation of the Goods, at its risk and expense, after delivery by LMS ex warehouse/factory. The Client shall also be fully and solely responsible for payment of any export and import duties, taxes and charges for the Goods, as well as the costs of carrying out any customs formalities payable upon export and/or import.
5.6 If for any reason whatsoever the Client fails to take delivery of the Goods at the estimated time of actual delivery notified to the Client in writing under Article 5.3(a) or the new estimated time for actual delivery of the Goods notified to the Client in writing under Article 5.3(b), or if such delivery is otherwise prevented or delayed due to fault, act or omission of the Client or due to a Force Majeure Event as defined in Article 19, the Client shall be fully and solely liable for any costs and expenses, including, where applicable, any costs for the storage of the Goods, incurred by LMS as a result of such failure or delay in the delivery of the Goods.
ARTICLE 6 – RETENTION OF TITLE TO GOODS
6.1 Notwithstanding delivery of the Goods to the Client and the provisions of Article 5.5, legal and beneficial title to the Goods shall remain with LMS until LMS has received payment in full of the price of the Goods and of any and all other amounts owed and due by the Client to LMS under or in connection with the Contract. For the avoidance of doubt, during such time and whilst legal and beneficial title to the Goods remains with LMS pursuant to this Article 6.1, all risk of damage, loss or destruction of the Goods shall remain with the Client.
6.2 Unless and until title in the Goods passes to the Client:
(a) the Client shall not use or consume the Goods and shall not sell, dispose of, or otherwise deal with the Goods in any manner; nor shall the Client pledge, charge, encumber or create any security or any indebtedness over or in respect of the Goods;
(b) the Client shall store and otherwise keep the Goods separate from all other goods in the Client’s ownership and/or possession and shall otherwise take any measures necessary to protect LMS’s title to the Goods. The Buyer shall not remove or make unreadable any mark placed on the Goods or the packaging of the Goods by LMS and shall ensure that the Goods are at all times marked as the property of LMS or stored in such a way as to make it obvious that the Goods are the property of LMS. If relevant, the Client shall not affix, attach or incorporate the Goods to or into land buildings, structure or premises;
(c) LMS may at any time in its absolute discretion inspect, move or retake possession of, sell, dispose of, or otherwise deal with the Goods;
(d) LMS, its agents or other authorised representatives may at any time and without notice to the Client enter or, if relevant, board any premises or location at which the Goods are situated, kept or stored, including without limitation, if relevant, the Client’s premises or the Vessel, for the purpose of LMS exercising its rights under Article 6.2(c);
(e) the Client shall procure and provide to LMS on demand all such access, facilities, resources and assistance as LMS may require in order to exercise its rights pursuant to Articles 6.2(c) and (d), and, at the request of LMS, the Client shall at its own cost return and deliver the Goods to LMS or its nominee at such place or places as LMS shall specify. Until the Goods are returned and delivered to LMS pursuant to this Article, all risk of damage, loss or destruction of the Goods shall remain with the Client.
(f) the Client shall insure the Goods for their full replacement value with a reputable insurer approved in writing by LMS and shall name LMS as loss payee or shall ensure that the interest of LMS is noted on the policy of insurance and shall immediately upon demand by LMS provide the Seller with a copy of the relevant certificate of insurance;
ARTICLE 7 – PRODUCT & MATERIALS LIABILITY
7.1 LMS shall source and supply the Goods as described in the Proposal based on the terms of the Proposal and on the Client’s instructions, as agents only for the manufacturers or any distributors or other suppliers of the Goods.
7.2 LMS shall not be liable for any claims, suits, judgments, damages, losses, costs (including legal costs), expenses and causes of action of any nature whatsoever resulting from any death or personal injury of any person and/or loss of or damage to property of any person, arising out of the ownership, possession, use, or consumption of any Goods sold under the Contract where LMS is not the manufacturer of the relevant Goods.
7.3 Without prejudice to the provisions of Articles 7.1 and 7.2, LMS shall not be responsible or liable in any way for the Cient’s use of any Goods provided by LMS under the Contract in a manner which is incorrect and/or not in line with the instructions for use or any safety and other guidelines accompanying such Goods and/or not in line with any specific instructions provided to the Client by LMS.
ARTICLE 8 – SERVICES
8.1 With respect to the performance by LMS of the Services set out in the Proposal, LMS shall use all reasonable endeavours to perform the Services within any time periods or performance dates indicated in the Proposal, but it is expressly agreed and understood between the parties that such time periods or performance dates are estimates only and time is not of the essence in respect of the performance of the Services.
8.2 LMS 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 LMS shall notify the Customer in any such event.
8.3 Where any materials to be used for or in connection with the performance of the Services or any Goods to be supplied under the Contract are not readily available, LMS reserves the right to substitute the same for other materials or Goods (as applicable) without the Client’s consent, provided that in LMS’s view the substituted materials or Goods (as applicable) are fit for purpose.
8.4 LMS shall be entitled to rely on, and shall not be under any obligation to verify, the correctness, accuracy or completeness of any information, statements, data or documents provided to it by classification societies or their representatives for the purposes of performance by LMS of the Services (and/or the supply of Goods) under the Contract.
8.5 All Services under the Contract shall be provided in accordance with normal professional and industry standards.
8.6 All warranties, conditions and other terms implied by statute or common law are hereby, to the fullest extent permitted by law, excluded from these Terms & Conditions and from the Contract.
8.7 LMS shall be entitled to sub-contract any part of the Services and otherwise of its obligations under the Contract:
(i) without the Client’s prior written consent, to its parent, subsidiaries, or Affiliates or to third parties expressly stated in the Proposal; and
(ii) with the Client’s prior written consent (not to be unreasonably withheld or delayed) to other suitably qualified third parties.
8.8 Any such performance of all or any of LMS’s obligations by the sub-contractors shall be and shall constitute full and sufficient performance by LMS of its obligations under or in connection with the Contract. LMS shall remain solely responsible to the Client for the performance or any non-performance of any of its obligations under the Contract which have been sub-contracted pursuant to Article 8.7.
ARTICLE 9 – CLIENT’S OBLIGATIONS
9.1 The Client shall ensure that any information the Client (or any third party appointed by the Client) provides to LMS on which the Proposal is based (whether such information is included in the Proposal or not), whether with respect to the Vessel and its particulars, capabilities or resources, or otherwise, is complete and accurate.
9.2 The Client shall (and shall ensure that any third party appointed by the Client) before and throughout the duration of the Contract provide LMS with all relevant data and information available to it without charge, and within sufficient time and shall give such assistance as LMS shall reasonably require in order to enable it to perform the Services effectively, efficiently and without delay. In the event of any changes in the data or information already provided to LMS which are relevant for the performance of the Services, the Client shall (and shall ensure that any third party appointed by the Client) promptly after becoming aware of such changes provide the updated data or information to LMS. LMS shall be entitled to rely on the accuracy and completeness of all data and information provided by the Client (or any third party appointed by the Client).
9.3 The Client shall also:
(a) provide LMS, its employees, agents, consultants and sub-contractors, with all necessary access to the Client’s premises and other facilities, as well as the Vessel, as reasonably required by LMS and ensure that all appropriate safety measures have been taken in accordance with applicable laws and regulations to ensure safe and secure working conditions at all times during performance of the Services;
(b) ensure that any instructions, consents or approvals required from the Client by LMS with respect to the performance of the Services shall be given to LMS in sufficient time to enable it to perform the Services efficiently and without disruption or delay;
(c) prepare the Client’s premises and other facilities, as well as the Vessel, for the performance of the Services within sufficient time for the commencement of the Services and in such state as required for the performance of the Services without disruptions or delays; and
(d) obtain and maintain all necessary licences, permissions, approvals and consents which may be required by applicable laws and regulations or otherwise before the date on which the Services are to commence and for the duration of the Contract.
9.4 If LMS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation under the Contract (the “Client Default”):
(a) LMS shall without limiting its other rights or remedies under the Contract or at law have the right to suspend performance of any or all of its obligations under the Contract until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays LMS’s performance of any of its obligations under the Contract;
(b) LMS shall not be liable for any costs, expenses, losses, damages or liabilities sustained or incurred by the Client arising directly or indirectly from the Client’s failure or delay to perform any of its obligations as set out in this Article 9.4;
(c) the Client shall reimburse LMS on written demand for any costs or losses sustained or incurred by LMS arising directly or indirectly from the Client Default; and
(d) without prejudice to the generality of Article 9.4(c) above and without limiting LMS’s other rights or remedies under the Contract or at law, in the event of a suspension of LMS’s performance of the Services due to Client Default pursuant to Article 9.4(a), the Client shall reimburse LMS on written demand for:
(i) the full costs of laying off (and re-hiring if necessary) any employees and consultants employed or hired specifically for the purposes of the Contract, including without limitation any costs which LMS has paid to any employment agent;
(ii) costs irrevocably committed by LMS to sub-contractors relating to the period of suspension, under a sub-contract which relates to the Contract; and
(iii) any other costs which LMS or its employees or agents have irrevocably committed in respect of the period of suspension.
9.5 LMS shall not be liable for any delay or failure in the performance of the Services or of any of its obligations under the Contract which has been caused by the Client’s acts or omissions or breach of its obligations under the Contract, including without limitation any breach of any of its obligations under Articles 9.1, 9.2 and 9.3 above.
ARTICLE 10 – LIABILITY
10.1 Except as otherwise expressly provided in the Contract (including in these Terms & Conditions), LMS shall not be liable to the Client for any Consequential Loss whatsoever arising out of or in connection with the performance or non-performance of the Contract, in contract, tort (including negligence), breach of duty (statutory or otherwise) or otherwise howsoever at law.
10.2 Without prejudice to Articles 7, 9.4, 9.5, 10.1 and 19, LMS shall be under no liability whatsoever to the Client for any loss, damage, delay, cost or expense of whatsoever nature and howsoever arising in the course of performance of the Services and/or in connection with the supply of the Goods or caused by or arising out of or in connection with the performance or non-performance of the Contract by LMS, unless same is proved to have resulted solely from the negligence, gross negligence or wilful default of LMS or sub-contractors employed by LMS in connection with the performance of the Services under the Contract or their respective employees or agents.
10.3 LMS’s total liability for any claims, demands, suits, judgments, liabilities, damages, costs (including legal costs), losses, penalties, expenses, and causes of action of whatever nature which may arise in connection with LMS’s performance or non-performance of its obligations under the Contract and otherwise in the course of, or in connection with, the performance or non-performance by LMS of the Services under the Contract and/or in connection with the supply by LMS of the Goods under the Contract, shall under no circumstances exceed the lower of: (a) an amount equal to the total of fees and/or prices payable by the Customer for the Services and/or the Goods under the Contract; and (b) US$100,000. LMS and the Client agree that having regard to the nature of the Services and/or the Goods to be supplied under the Contract, the fees and/or prices paid for such Services and/or Goods by the Client and all other circumstances known to LMS and the Client relating to the Services and/or the Goods, the foregoing limits of liability are fair and reasonable.
ARTICLE 11 – INDEMNITY
11.1 LMS shall indemnify, defend, and hold harmless the Client Group in respect of all claims, demands, suits, judgments, liabilities, damages, costs (including legal costs), losses, penalties, expenses, and causes of action of whatever nature (the “Claims”) against any members of the Client Group arising out of or in connection with the performance or non-performance of the Contract in respect of loss of or damage to, or pollution from, the property of the LMS Group (whether such property is owned, leased or chartered by the relevant member of the LMS Group), except for any Goods in respect of which property and legal and beneficial title is retained by LMS pursuant to the provisions of Article 6, in relation to which the provisions of Article 6.1 and the other provisions of Article 6 shall apply, irrespective of the negligence, gross negligence, wilful misconduct, or breach of duty (statutory, tortious, or otherwise) of the Client Group.
11.2 The Client shall indemnify, defend, and hold harmless the LMS Group in respect of all Claims against any members of the LMS Group arising out of or in connection with the performance or non-performance of the Contract in respect of loss of or damage to or pollution from the property or equipment of the Client Group, including the Vessel (whether such property or equipment, including the Vessel, is owned, leased or chartered by the relevant member of the Client Group), irrespective of the negligence, gross negligence, wilful misconduct or breach of duty (statutory, tortious or otherwise) of the LMS Group.
11.3 All exclusions and limitations of liability and any indemnities set out in the Contract shall survive the expiry or termination of the Contract but only in respect of liabilities which arise and indemnities which are invoked as a result of incidents which occurred prior to the effective date of expiry or termination of the Contract.
ARTICLE 12 – "HIMALAYA"
12.1 It is hereby expressly agreed that no employee or agent of LMS (including every sub-contractor from time to time employed by LMS for the performance of the Services and the employees or agents of such sub-contractor) shall in any circumstances whatsoever be under any liability whatsoever to the Client for any loss, damage, or delay of whatsoever kind arising or resulting directly or indirectly from any act neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing provisions in this Article, every exemption, limitation, condition and liberty herein contained in the Contract (including in these Terms & Conditions) and every right, exemption from liability defence and immunity of whatsoever nature applicable to LMS or to which LMS is entitled under the Contract (including under these Terms & Conditions) or otherwise at law shall also be available and shall extend to protect every such employee or agent or sub-contractor of LMS acting as aforesaid.
ARTICLE 13 – THRID PARTIES’ RIGHTS
13.1 Any person (other than LMS and the Client) who is given any rights or benefits under Articles 11, 12, 15.3, 20.2 and 21.3 (a “Third Party”) shall be entitled to enforce those rights or benefits against LMS and the Client in accordance with the Contracts (Rights of Third Parties) Act 1999.
13.2 Save as provided in Article 13.1 above the operation of the Contracts (Rights of Third Parties) Act 1999 is hereby excluded.
13.3 LMS and the Client may amend, vary, or terminate these terms and conditions in such a way as may affect any rights or benefits of any Third Party which are directly enforceable against the parties under the Contracts (Rights of Third Parties) Act 1999 without the consent of any such Third Party.
13.4 Any Third Party entitled pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any rights or benefits conferred on it by these terms and conditions shall not be entitled to veto any amendment, variation or termination of these terms and conditions which is proposed by LMS and the Client and which may affect the rights or benefits of any such Third Party.
ARTICLE 14 – INTELLECTUAL PROPERTY
14.1 All Know-how and all Intellectual Property Rights in or in relation to any work, materials, products or documentation produced or provided by LMS as part of the Services provided by LMS and/or in or in relation to any Goods supplied by LMS under the Contract shall remain vested in and owned by LMS. The Client recognizes that such Know-how and Intellectual Property Rights embody significant value for LMS.
14.2 LMS hereby grants the Client a licence to use such materials, products, documentation or other products of work and/or the Goods only for the purposes for which they were prepared or provided and subject to the payment to LMS of all fees, prices and charges agreed under the Contract.
14.3 The Client shall indemnify LMS in full on demand against all losses, liabilities, damages, costs, and expenses which LMS may incur as a result of work done in accordance with the Client’s specifications which involves or results in the infringement of any third party Intellectual Property Rights or Know-how.
ARTICLE 15 – CONFIDENTIALITY
15.1 A party to the Contract (the “Receiving Party”) shall keep in strict confidence all the terms of any Contract, technical, commercial or other Know-how of any kind, specifications, technologies, techniques, inventions, processes, reports, plans, drawings, Intellectual Property Rights, initiatives or similar or other materials which are of a confidential nature and have been disclosed to the Receiving Party, its shareholders, its Affiliates or its or their respective employees, agents or sub-contractors by the other party (“Disclosing Party”), its shareholders, its Affiliates or its or their respective employees, agents or sub-contractors for the purpose of, or in connection with, the Contract, and any other confidential information concerning the Disclosing Party’s, its shareholders’ and its Affiliates’ business, products and services which the Receiving Party may obtain for the purpose of, or in connection with, the Contract.
15.2 The Receiving Party shall only use the confidential information referred to in Article 15.1 (collectively, the “Confidential Information”) for the purpose of the performance of the Contract. The Receiving Party shall not disclose such Confidential Information to any third party except only to those of its shareholders, Affiliates or its or their respective employees, agents and sub-contractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such shareholders, Affiliates and their respective employees, agents and sub-contractors comply with the obligations set out in this Article 15 as though they were a party to the Contract. In any event, the Receiving Party shall be liable for any use or disclosure or use of such Confidential Information in breach of this Article 15 by any of the aforementioned recipients to whom the Receiving Party has disclosed such Confidential Information. The Receiving Party may also disclose such of the Disclosing Party’s Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
15.3 Without prejudice to any other Article of the Contract, the Client shall indemnify and hold harmless LMS and any of LMS’s shareholders and Affiliates against all Claims (as defined in Article 11.1) and in respect of all loss suffered by them as a result of, or relating to, violations of this Article 15. Article 10.1 shall not apply in respect of a party’s rights under this Article 15. This Article 15 shall survive expiry or termination of the Contract.
ARTICLE 16 – DISPUTED INVOICES
16.1 If the Client wishes to dispute any aspect of an invoice issued by LMS, the Client may raise any such issue with LMS within five (5) business days of the date of the relevant invoice. The Client shall not defer payment of any invoiced amount which is being disputed by the Client and, if relevant, any amount overpaid by the Client shall be refunded or credited to the Client when the matter has been resolved.
ARTICLE 17 – GOVERNING LAW AND DISPUTES
17.1 The Contract and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in accordance with English law. Any dispute arising out of or in connection with the Contract shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Article. The arbitration shall be conducted in accordance with the London Maritime Arbitrators’ Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.
17.2 The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the fourteen (14) days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of the sole arbitrator shall be binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.
17.3 In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.
ARTICLE 18 – ANTI BRIBERY
18.1 For the purposes of this Article 18, “Bribe” means anything that would amount to an offence of bribery or corruption under any applicable anti-corruption laws (including without limitation anything which would be an offence under the Bribery Act 2010 as amended if the person concerned were subject to the jurisdiction of the UK courts under such Act and any provisions of the UAE Federal Penal Code or other UAE legislation relating to bribery and corrupt practices) and “Bribes”, “Bribed”, “Bribery” and other variants of “Bribe” shall be construed accordingly.
18.2 Each party represents and warrants to the other that such party, (including its Affiliates and its and their respective employees, directors, officers or agents) has not Bribed at any time in connection with entering into the Contract and shall not Bribe in connection with the Contract or its performance.
18.3 Each party shall, if so requested by the other party in writing, promptly provide any information which such other party may reasonably require in order to monitor its compliance with this Article.
18.4 Each party shall, where permitted by law, notify the other party immediately in writing upon becoming aware of, or suspecting:
(i) any failure to comply with any provisions of this Article 18; and/or
(ii) any extortive solicitation, demand or other request for anything of value, by or on behalf of any person relating to the Contract or its subject matter.
18.5 Any failure by a party (or any of its Affiliates or any of its or their respective employees, directors, officers or agents) to comply with any provision of this Article 18 shall constitute a material breach of the Contract.
18.6 In the event of a breach or suspected breach by the Client of this Article 18, such determination to be at the sole discretion of LMS, LMS shall be entitled to, with immediate effect, suspend performance of any or all of its obligations under the Contract (in which case the provisions of Articles 9.4(a), 9.4(b), 9.4(c) and 9.4(d) shall apply) and/or terminate the Contract by notice in writing with immediate effect.
ARTICLE 19 – FORCE MAJEURE
19.1 LMS shall not be liable for any loss or damage or delay or total or partial failure to perform the Contract caused wholly or partly by any circumstance or matter beyond the reasonable control of LMS, including (without limiting the generality of the foregoing) Acts of God, acts of governmental authorities, strikes, lock-outs or labour disputes of any kind, hurricanes, earthquakes, natural catastrophes, adverse weather conditions, epidemics, quarantine restrictions, war (whether declared or undeclared) or threat of war, civil war or civil commotion, insurrections, riots, violent demonstrations, requisition, or hire by any governmental or other competent authority, embargoes, blockades, sabotage, prolonged power failure, flooding, fires, explosions or other forms of destruction at factories or warehouses or elsewhere, criminal offences, acts and omissions of civil or military authority or of usurped power, shortages of materials, or delays on the part of classification societies or other third party bodies or authorities (each such event or circumstance, a “Force Majeure Event”).
19.2 If LMS’s performance under the Contract is affected by a Force Majeure Event, LMS will notify the Client in writing of the Force Majeure Event at the earliest opportunity and will also advise the Client of the likely duration of such Force Majeure Event.
19.3 LMS shall have the option to terminate the Contract on giving fourteen (14) business days’ written notice to the Client in the event that LMS is prevented from fulfilling its obligations under the Contract for a continuous duration of three (3) months by reason of a Force Majeure Event.
ARTICLE 20 – [NOT USED]
ARTICLE 21 – COMPLIANCE WITH GLOBAL TRADE LAWS AND SANCTIONS LEGISLATION
21.1 For the purposes of this Article 21, the following terms and expressions shall have the following meanings:
(i) “Embargoed Country” means any country or geographic region subject to comprehensive economic sanctions or embargoes administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or the European Union (“E.U.”), including without limitation Cuba, Iran, North Korea, Syria, and the Crimea region;
(ii) “Global Trade Laws” means the U.S. Export Administration Regulations; the U.S. International Traffic in Arms Regulations; the economic sanctions rules and regulations administered by OFAC, as well as any relevant Executive Orders; the economic sanctions rules and regulations administered by the United Kingdom, E.U. Council Regulations on export controls, including Nos. 428/2009, 267/2012; other E.U. Council sanctions regulations, as implemented in E.U. Member States; United Nations sanctions policies; all relevant regulations made under any of the foregoing; and other applicable economic sanctions or export and import control laws; and
(iii) “Sanctioned Person” means at any time: (a) any person or entity included on: OFAC’s Specially Designated Nationals and Blocked Persons List, the Sectoral Sanctions Identifications List, or the Foreign Sanctions Evaders List; the E.U.’s Consolidated List of Sanctions Targets; or any similar list; (b) any person resident in, or entity organised under the laws of, an Embargoed Country; or (c) any person or entity majority-owned or controlled or acting on behalf of any of the foregoing.
21.2 The Client warrants compliance by the Client, by its Affiliates and its and their respective employees, directors, officers or agents with:
(i) Global Trade Laws in all respects related directly or indirectly to the performance of the Contract and undertakes that it and/or they will not, through any act or omission place the LMS Group in violation of Global Trade Laws; and
(ii) all other rules and regulations including those of the territories where Goods and/or Services are to be delivered and/or performed.
21.3 Without prejudice to any other Article of the Contract, the Client shall indemnify and hold harmless LMS and any member of the LMS Group against all Claims (as defined in Article 11.1) and in respect of all loss suffered by them as a result of or relating to violations of this Article including any penalties or costs associated with government investigations or enforcement actions under Global Trade Laws. Article 10.1 shall not apply in respect of a party’s rights of indemnity under this Article.
21.4 The Client represents and warrants that it, its Affiliates, and its and their respective directors, officers, employees, or agents are not Sanctioned Persons.
21.5 Any breach and/or potential breach of this Article, or a change to Global Trade Laws which makes continued performance under the Contract impermissible, entitles LMS, at its absolute discretion, to immediately terminate the Contract by notice in writing, in which case the provisions of Article 22.4 shall apply, to the fullest extent permitted by the relevant applicable law. In that event and if either party terminates the Contract due to a change in applicable Global Trade Laws, both parties agree that: (i) such termination shall not constitute a breach of the Contract by the party terminating and the other party waives any and all claims against the terminating party for any loss, damage, cost or expense that the other party may incur by virtue of such termination; and (ii) they shall take reasonable steps to co-operate in winding down the Contract.
ARTICLE 22 – TERMINATION
22.1 Without limiting any other rights and remedies available to it under or in connection with the Contract or at law, either party shall have the right to terminate the Contract at any time without cause upon thirty (30) days’ written notice to the other.
22.2 Without limiting any other rights and remedies available to it under or in connection with the Contract or at law, LMS shall have the right to terminate the Contract in accordance with Article 4.5 in case of failure by the Client to pay any amounts due under the Contract in a timely manner, as provided under Article 4.4.
22.3 Without limiting any other rights and remedies available to it under or in connection with the Contract or at law, LMS shall have the right to terminate the Contract by notice in writing to the Client with immediate effect if:
(a) the Client is in material breach of its obligations under the Contract which is not capable of remedy or, where such breach is capable of remedy, the Client fails to remedy such breach within fourteen (14) days after receipt of written notice requiring it to do so; or
(b) an order is made, or resolution passed for the winding up, dissolution, liquidation or bankruptcy of the Client (otherwise than for the purpose of reconstruction or amalgamation) or if a receiver, administrator or similar officer of the Client is appointed, or if the Client suspends payments, ceases to carry on business or makes any special arrangement or composition with its creditors.
22.4 In the event of termination of the Contract for any reason and without prejudice to any other rights and remedies available under or in connection with the Contract or at law:
(a) the Client shall immediately pay LMS for all work performed up to the date on which termination takes effect and in particular the Client shall pay to the Supplier any and all of the Supplier’s outstanding unpaid invoices, together with interest (if applicable) and in respect of Services performed in respect of which no invoice has been issued, the Supplier may issue and submit an invoice, which shall be payable by the Customer immediately upon receipt;
(b) the Client shall immediately pay LMS for all Goods ordered by LMS for the purposes of the Contract and/or delivered by LMS to the Client pursuant to the Contract and in particular the Client shall pay to LMS any and all of LMS’s outstanding unpaid invoices, together with interest (if applicable) and in respect of Goods ordered and/or delivered by LMS in respect of which no invoice has been issued, LMS may issue and submit an invoice, which shall be payable by the Client immediately upon receipt;
(c) without prejudice to the provisions of Article 15.4(b), with respect to any Goods delivered by LMS to the Client, in respect of which LMS has issued invoices which remain unpaid, LMS shall have the option to require the return of such Goods by the Client at Client’s risk and expense, in accordance with the provisions of Article 6.2;
(d) the Client shall pay to LMS all costs and expenses reasonably incurred by LMS as a consequence of such termination;
(e) all the accrued rights, remedies, obligations and liabilities of the parties as at the time of expiry or termination of the Contract shall remain unaffected; and
(f) any provisions of the Contract which expressly or by implication survive termination shall continue in full force and effect.
ARTICLE 23 – ENTIRE AGREEMENTE
23.1 These Terms & Conditions together with the Proposal constitute the entire agreement and understanding of the parties in relation to the subject-matter of the Contract and supersede any previous agreement, understanding, discussion, statement or exchange between the parties (or their representatives) relating to subject-matter of the Contract.
23.2 Both parties agree and represent to each other that neither party is entering into the Contract as a result of, or in reliance on, any warranty, representation, statement, agreement or undertaking of any kind whatsoever (whether in writing or oral and whether made negligently or innocently) made by any person other than as expressly set out in the Contract as a warranty and identified as such in the Contract.
ARTICLE 24 – WAIVER
24.1 A waiver of any right or remedy under the Contract or at law: (i) shall only be effective if it is in writing; (ii) shall apply only vis-à-vis the party to whom it is addressed and with respect to the circumstances for which it is given; and (iii) shall not be deemed to be a waiver of any subsequent breach or default.
24.2 No failure or delay by a party in exercising any right or remedy provided under the Contract or at law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise by that party of that or any other right or remedy. No single or partial exercise of any such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24.3 Unless expressly provided in the Contract, rights and remedies arising under the Contract are cumulative and do not exclude rights and remedies provided by law.
ARTICLE 25 – SEVERANCE
25.1 If any provision of the Contract is or becomes or is held by any arbitrator or any competent court or other competent body to be illegal, invalid or unenforceable in any respect under any law or jurisdiction, the provision shall be deemed to be amended to the extent necessary to avoid such illegality, invalidity or unenforceability, or, if such amendment is not possible, the provision shall be deemed to be deleted from the Contract to the extent of such illegality, invalidity or unenforceability, and the remaining provisions shall continue in full force and effect and shall not in any way be affected or impaired thereby.
ARTICLE 26 – NO PARTNERSHIP OR AGENCY
26.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
ARTICLE 27 – NOTICES
27.1 Notices or other communications under or in connection with the Contract shall be in writing and shall be delivered personally or shall be sent by mail or by email to the parties at their respective addresses set forth in the Proposal or to such other address notified in writing.
27.2 In the absence of evidence of earlier receipt, a notice shall be deemed given:
if delivered personally, when left at the address of the relevant recipient set out in the Proposal;
if sent by mail, on the third (3rd) business day next following the day of posting it; and
if sent by email, when actually received in readable form and if transmitted during normal business hours (9.30am – 5.30pm) on any business day. An email transmitted after midnight but on or before 9.30am on any business day shall be deemed to be given at 9.30am on that business day. An email transmitted after 5.30pm but on or before midnight on any business day and an email transmitted on a non-business day shall be deemed to be given at 9.30am on the following business day.
27.3 The provisions of this Article 27 shall not apply to the service of any proceedings or other documents in any legal action.