Terms and Conditions
Measuring Solution. BV
KVK nummer: 89335910
The following are the standard terms and conditions that are applicable to all agreements (regardless of whether such agreements are in the form of a written contract, quotation or similar documents) entered into by the client (which is referred to in these terms and conditions as “you” and “your”) and Lead ship Ltd. (which is referred to in these terms & conditions as “we”, “our” or “us”). These terms and conditions are incorporated into our agreement with you and form anintegral part thereof.
1 PURPOSE, SCOPE & VALIDITY
1.1
These terms and conditions apply to our legal relationship with you and by entering into an agreement with us, you agree to these terms and conditions as well. To be valid, any deviations from these provisions will need to be made in writing between you and us.
1.2
Our written agreement with you will contain a specification of the scope of work and delivery, a time schedule, the fee system, as well other terms and conditions that are relevant to the work in question.
1.3
If any provision of our agreement with you or these terms and conditions is held to be invalid or unenforceable in whole or in part, the validity or enforceability of the remaining provisions of the contract and these terms and conditions will not be affected thereby.
2. SCOPE OF WORK & DELIVERY
We will perform the work and/or make the deliveries as specified in our quotation and/or order confirmation. We will prepare documentation (i.e. drawings, calculations, reports, etc., and perform services according to customary and usual standards in the relevant field.
3. ALTERATIONS
We will bill any alterations of or additions to our documentation and/or other services (or parts thereof) that you request in excess of what have been expressly included in the agreed scope of work & delivery, as extra work (please see Clause 6.2 below).
4. TIME OF DELIVERY AND LIABILITY FOR DELAYS
4.1
The time of delivery will be calculated either from (1) the time when we confirm the order in writing, (2) when we receive any down payment that was agreed between you and us, or (3) when you deliver to us the information and services that are necessary for us to commence the work, whichever is later.
4.2
Unless it is specifically stated in our agreement with you that a due date for delivery is a fixed binding deadline, any due dates indicated for delivery will be conditions will not be affected thereby approximate, non-binding and indicative only. If we agreed with you to a fixed deadline and such deadline is exceeded, without us being entitled to an extension of the deadline, we will be liable to you for the loss thus incurred in accordance with the general rules of UK law on compensation for delays with such limitations as are contained in our agreement with you and these terms and conditions (please see in particular Clause 14 hereof). You must make any complaints in respect of delays immediately and in any event in writing to us within five (5) working days after the passing of the deadline. If you do not deliver to us a compliant within the above-mentioned period of 5 working days from the passing of the deadline, you agree that the original deadline will be perceived as an approximate time of delivery and you will be deemed to have accepted the passing of the deadline. In such instances, you and we will expressly agree in writing to any new deadline in order for the new deadline to become binding. You will not be entitled to any compensation or indemnification, if you do not make any compliant to us within the above-mentioned period of 5 working days.
4.3
You agree to grant us an extension of a deadline of at least the same duration as the event (including consequential events) extending the deadline or such longer period as is necessary for a renewed start-up according to an appropriate (revised) time schedule upon any of the following:
- In the event of any delay on your part with information and services (please also see Clause 9 below);
- In the event of circumstances relating to you;
- In the event of any changes, alterations or additions to the work;
- If any public authority fails to grant approvals, make decisions or provide answers, or to supply materials or services within the time limits assumed;
- In case of public orders, bans or similar;
- In case of events and circumstances for which
- We cannot be blamed and which are outside of our control; and
- In case of events which we could not have anticipated or be expected to anticipate, if such events delay or prevent the fulfilment of our agreement with you or make it unreasonably onerous on our part.
4.4
In case of extensions of a deadline in excess of six (6) months in the aggregate, both you and we are entitled to consider the work as having been stopped (please see Clause 13 below). We will be entitled to consideration pursuant to Clause 13.2, if the extension of a deadline in excess of six months is due to circumstances you cause. If this is not the case, we will be entitled to a reasonable consideration for the work we performed. The burden of proof that the consideration we demand is not reasonable will rest with you.
5. DELIVERY
Any delivery of documentation we make is deemed to have occurred upon our dispatch of the documentary material. For the purpose hereof dispatch means
- The time when we hand over the material to the postal authorities for dispatch;
- When it is picked up by a forwarding agent or courier;
- When we deliver it directly to you by one of our employees or agents; or
- When we transmit it via electronic media (such as by email or otherwise via the internet). The risk passes to you upon dispatch, hand-over, pick-up or electronic dispatch and we assume no responsibility for loss of, damage to, corruption or destruction of documentary material after dispatch, hand-over, pick-up or electronic dispatch, or, for the avoidance of doubt, any loss (consequential, indirect or otherwise) on your part, as a consequence thereof.
6. PRICES
6.1
Our fee for the work is stated in our agreement with you.
6.2
For all extra work outside of what is assumed in the description of the work (please see Clause 2), we will bill you on the basis of time consumed (by hours) multiplied by our usual hourly rates for fees applicable at the time of execution of the work, including any overtime supplement. We will also add any direct costs of any expenses that we incur (please see Clause 7).
6.3
All fees and prices are quoted as net values and do not include V.A.T., taxes, duties, and similar levies to the price, in UK as well as elsewhere. In cases where we are required or enabled by law to pay or collect such taxes, we will add these to the price. In cases where we specifically include taxes and duties, by exception, in the price, we may demand that you pay any rise in such taxes and duties.
7 EXPENSES
7.1
We do not include in the fee any expenses in connection with the execution of the work and we will invoice you directly for expenses on a monthly basis in arrears.
7.2
The costs of transportation, travelling, accommodation, per diem allowance, any special consultants engaged, couriers, printing, reproduction and duplication (on whatsoever medium), models, photographs, charges made for any certificates and other official documents, etc. are always considered as expenses that you will be required to pay in addition to the fee.
7.3
Except as you and we may otherwise agree, we will use sea-men or economy fares as applicable for air travel, and the accommodations we select will be according to western European standards.
8 PAYMENT
8.1
We will have the right to invoice you in monthly instalments in arrears and you will pay for the services provided promptly.
8.2
All invoices, including final settlement, billing for extra work, expenses, etc., will be due immediately upon issuance of the invoice, and in any event the final date for payment by you will be fifteen (15) calendar days from the date of the invoice. Late payment will bear interest at the rate of one and a half per cent (1.5%) per month on any amount due and will accrue from the due date.
8.3
Except where we otherwise specifically set out in our agreement with you, you will not be entitled to make any setoffs or have any rights of retention against the fee we invoice you or other invoiced amounts, nor will you have any retention rights in any assets, rights, documentation or similar belonging to us or delivered by us to you as part of the work.
8.4
If you delay payment for any reason, we will have the right to suspend work until we receive payment in full and we will have a right to extend the deadline pursuant to Clause 4.3. If this situation occurs, we will deal with it according to the rules on postponement of the work until we may choose to cancel the agreement pursuant to Clause 18.4 below. You will also not be entitled to any compensation or indemnification in case we suspend the work, and you will not be entitled to terminate or cancel our agreement with you pursuant to Clause 18.
9 YOUR OBLIGATIONS
9.1
You will at the agreed time, or in reasonable time, and without cost to us, provide us with the agreed and/or necessary input, data and details, order forms, test objects, equipment etc.
9.2
Furthermore, you will make sure that you make available as necessary such persons as may we may reasonably require for assistance in carrying out the work.
9.3
You will arrange for clear and unrestricted access to the site if this is outside our premises. You will also make sure that the work is not carried out in an unhealthy or hazardous environment and will arrange for the fulfillment of any working site requirements pursuant to applicable laws and regulations.
9.4
You will grant your approval and/or make your comments on all outlines, drawings, reports, recommendations, tender documents, etc., submitted to you for approval by the agreed time or early enough to avoid any delay in or interruption of our work, and in such a manner that we can sustain an appropriate rhythm and arrangement of the work.
10. CONFIDENTIALITY
You and we mutually agree to keep all information exchanged in connection with the execution of the work strictly confidential.
11. INTELLECTUAL PROPERTY RIGHTS
11.1
To the extent agreed or assumed in our agreement with you, you will be entitled to make use of the material prepared for the work for the agreed purpose. We will retain intellectual property rights of any kind connected to the work (whether they can be subject to registration and whether or not they are registered or are subject to an application for registration), including but not limited to copyrights, designs, know-how, to our ideas and the material prepared by us for you.
11.2
Where the work includes the partial or total design of a new ship or the conversion of a ship or another unique construction, your right to make use of the documentary material we prepared for you will be confined to one (1) unit. If you wish to use the material for more than one unit of unchanged or essentially unchanged design, you will pay an extra fee to us for that facility, except as otherwise specifically agreed in our agreement with you.
11.3
In the event of any public reproduction of a design, proposal, report, or any other material we develop
for you, you and your agents will mention our name in all cases (and regardless of agreements
regarding royalties) in any such public reproduction in accordance with customary practices.
12 POSTPOMENT OF THE WORK
12.1
You may at any time postpone the execution of the work. If you choose to postpone the work, you will pay for the work carried out up to the time of the postponement, with the addition of the costs we incur in connection with and incidental to the postponement of the work. Examples of such additional costs include, for example, the cost of redundant capacity (labour, premises, equipment, chattels, etc.), third-party costs as well as the costs of waiting time and idle time that we cannot reasonably avoid. The burden of proof that costs could have been avoided and/or that invoiced expenses are too high will rest with you. This provision does not confer upon you any right to postpone parts of the work or to alter the progress without entering into a new contract with us to that effect.
12.2
We may require that you pay us as extra work for additional tasks associated with the recommencement
of the work. If the postponement
(Added to any previous postponements) has lasted more than three (3) months, we will be bound
to continue the work only if we enter into an agreement with you regarding a new time schedule
and fee arrangement reflecting the price development caused by the time delay. If the execution of
work is postponed for more than six (6) months, we will be entitled to consider the assignment
stopped, (please see Clause 13 below).
13 STOPPING THE WORK
13.1
Subject to the provisions of Clause 13, you may stop the work at any time.
13.2
If the work is stopped, you must pay damages to us equal to (1) our lost profit as a result of stopping the work (only for fixed price work), (2) payment for any work carried out and (3) recovery of all of our expenses. You will bear the burden of proof that any damages we may demand are not correct.
13.3
If the work is stopped before we commence the preparation of the agreed documentation (but following the preparation of preliminary analyses and calculations), you will have the right−with a view to continue the matter−to use such preliminary analyses and calculations and such other material containing assumptions for the execution of the work, provided that you pay for any such analyses, calculations and other materials, which we have made in connection with such work.
13.4
If the work is stopped after we have commenced the preparation of the documentation, you will have the right−subject to the limitations contained in 13.5 and 13.6 below−to use the material we have prepared, with a view to completing the matter. However, we will only release the material to you if you have first paid us the compensation set out in Clause 13.2 above, which includes payment for any work we have carried out and reimbursement of any expenses we have incurred. If you contest the amount of the compensation, you may receive the material from us and use it as provided in this
Clause 13.4 if you first (1) deposit the contentious part of the consideration into a escrow account controlled jointly between you and us and (2) file a statement of complaints pursuant to Clause 19 at the same time. Further, and in the light of the work not being completed, you must, before we deliver such material to you, clearly in writing, release us of any potential liability we may have towards you as a result of our preparation of the documentation.
13.5
If you wish to use the material as stated above, you may not use our name in connection with your use of such material, except as we may otherwise agree with you in writing. We will not be responsible in any way for your continued use of the material, regardless of any errors or defects in the material we prepared prior to stopping the work.
13.6
Notwithstanding the above, you may never make commercial use of the material in any way, regardless of your original intentions with respect to the use of the materials.
14 LIABILITY & INSURANCE COVER
14.1
Subject to the modifications set out in this Clause 14, we will be liable for defects in accordance with the general rules of UK law.
14.2
We will under no circumstances be liable to you or other third parties for loss of production, loss off. use, loss of contracts, loss of profit or for any other consequential or indirect loss whatsoever.
14.3
Our employees will not be liable to you or other third parties to an extent greater than we may be liable. We will never be liable for any work that has been carried out by any third party.
14.4
If hawse have incurred liability towards you or other third parties jointly with others, we will only be liable for such part of the loss as corresponds to that part of the total culpa or negligence giving rise to the loss that is directly attributable to us.
14.5
In the case of supervisory work, we will only be liable for such loss that you or other third parties may suffer by reason of our failure to point out in due course that work performed by a third party is not in accordance with the agreed scope of the third party's work. Our liability for supervision will in any event be limited and not exceed in terms of amount the sum of EUR 250,000.
14.6
In the case of work where we only provide partial drawing documentation and in case of work only involving calculations, our liability will in any event be limited and not exceed in terms of amount the sum of our fee for the work in question.
14.7
Our liability for any loss or any damages shall be limited to the insurance cover under our third-party liability insurance, which is limited and will not exceed in terms of amount the sum of EUR 1,000,000 for bodily injury and EUR 500,000 for property damage. We may provide you a copy of our polices upon your written request. If you wish any special agreements regarding the taking out of insurance and insurance cover, you will need to make sure that such terms appear in our written agreement with you.
15 PRODUCT LIABILITY
15.1
Mandatory UK product liability rules in force from time to time will apply to disputes regarding product liability. We will not be liable for product liability towards you or any third party (whether such third party is a customer of yours or otherwise), including but not limited to liability for loss of production, loss of use, loss of contracts, loss of profit or for any other consequential or indirect loss whatsoever, and the limitations applying according to these terms and conditions will apply to the fullest extent not contrary to applicable law. You will hold us harmless and indemnify us against any and all losses, damages or expenses in excess of what is provided for under this Clause 15.
16 COMPLAINTS
16.1
You will be deemed to have forfeited your right to hold us liable if you fail to complain in writing to us as soon as possible and in any event within seven (7) days after you become or should have become aware of any defects or non-conformities in the work we carried out. You will include in the complaint include a specification of the supposed or alleged defects or nonconformities.
16.2
If, after our investigation of the complaint, you and we can ascertain that it is not a matter of liability incurring errors or defects in the work we carried out, we will have the right to charge you for the time consumed in assisting with the processing of the complaint. The same will apply if at any later stage, a mediator, arbitrator(s) or other tribunal may come to the conclusion that the work we carried out did not suffer from any liability incurring errors or defects.
16.3
In any event, we will not be liable towards you or any third party for any loss as a result of the work we carried out if you do not give us notice thereof at the latest within a period of two (2) years from the date on which we delivered the documentation in question or we completed the work in question.
17. SECONDMENT
In case any of our employees carries out work during secondment to you and such employee is not under our instruction and project management, then neither we nor such employee can be held liable by you or other third parties for the performance of the work.
18. NON – PERFORMANCE
18.1
If we are in material default of our obligations under our agreement with you, and the matter is not remedied within a reasonable time after we receive a demand in writing to that effect, you will have the right to terminate the agreement without further notice.
18.2
Where you terminate our agreement with you in accordance with Clause 18.1 above, we will be entitled to receive a fee from you for such part of the work we carried out prior to the termination as you can use in connection with the execution of the overall work, including payment of any expenses
relating to such part of the work.
18.3
You will be entitled to compensation in accordance with the rules contained in these terms and conditions (please see in particular Clause 14 above). Regarding your right to use the material we prepared, the provisions in Clause 13 hereof will apply.
18.4
If you are in default of your obligations under our agreement with you or if you otherwise conduct your business in a manner which would lead to a situation in which we could not reasonably be expected to carry on with the work, we will have the right to terminate our agreement with you and claim compensation for losses incurred by us according to generally applicable UK law. The provisions in Clause 13 will apply regarding your right to use the material we prepared in connection with stopping the work.
19 APPLICABLE LAW AND VENUE
19.1
These terms and conditions and any other agreement we may have with you are governed and construed by and will be interpreted in accordance with the laws of UK, disregarding the UK choice of law rules.
19.2
You and we will make an effort to settle amicably any dispute including if relevant by third party relevant, by third-party mediation. If you and we cannot reach an amicable settlement, you and we will settle any dispute or claim arising out of or in connection with our agreement with you, or the breach, termination or invalidity thereof, by arbitrion in accordance with the rules of procedure of the UK institute of Arbitration (UK Arbitration) Provided that we do not exercise our right according to clause 19.3 to bring the dispute before the courts. All Members of the Arbitration Tribunal will be appointed by the UK Institute of Arbitration. The place of arbitration will be in UK. The language of the best arbitration will be English.
19.3
In Addition to the Arbitration agreement in Clause 19.2, we are entiled to bring a dispute That cannot be settled amicably between you and us before the local courts of UK. However, Well will not be entiled to bring a such courts if arbitration proceedings have commenced. If any dispute is brought before the courts, you and we will seek a private hearing to the fullest extent Permitted in order to protect any business selects.
19.4
In case you and we cannot settle a dispute amicably, we will have the choice between Settlement of the dispute by arbitration or by court proceedings. On your request, we will be Obliged to inform you of our decision to settle the dispute either by Arbitration or court Proceedings. We will submit our decision to you no later than four (4) weeks after receive your request, we fail to submit to you our decision or fail to submit.