Terms & Conditions
CYCLUS MARINE GENERAL TERMS & CONDITIONS FOR SHIP INSPECTION SERVICES AND TECHNICAL SERVICES ON BOARD VESSELS
1. Interpretation
1.1. “Additional Terms” means any additional terms and conditions or other documents which the Client and Consultant have expressly agreed in writing shall be applicable to the Services, but which are not contained in the Quotation or these General Terms & Conditions for Services.
“Affiliate” means any company controlling, controlled by or under common control with a Party where control means direct or indirect ownership of at least 50% of the voting stock or interest in the company or control of the composition of the board of directors.
“Agreement” means the agreement between the Consultant and the Client for the provision of the Services and which includes the Quotation, these General Terms and Conditions for Services and (if applicable) Additional Terms.
“Client” means the person or entity ordering the Services as is specified in the Quotation.
“Consultant” means CYCLUS MARINE PTE. LTD. 300 BEACH ROAD, #33-01, THE CONCOURSE, SINGAPORE 199555.
“Contract Documents” means any drawings, designs, reports, electronic records and other documents and concepts provided by the Consultant to the Client as part of or in connection with the Services.
“Fee” means the amount specified in the Quotation as payable for the Services as adjusted in accordance with clause 3.4.
“Quotation” means the quotation submitted by the Consultant to the Client which specifies that it incorporates these General Terms & Conditions for Services.
“Reimbursable Expenses” means the cost of all travel and accommodation, equipment use/hire, communications, printing, photocopying, third party fees and other out of pocket expenses incurred by the Consultant in the course of performing the Services.
“Services” means the services relating to either ship inspections or other technical services, such as provision of riding crew, as specified in the Quotation.
The word “includes” in any form is not a term of limitation.
2. Engagement
2.1. The issue of a purchase order by the Client is a contractual offer from the Client which confirms that it wishes to engage the Consultant to provide the Services in accordance with this Agreement. The Consultant may commence supply upon receipt of such purchase order and may confirm the purchase order to the Client in writing within four (4) days of receipt of the purchase order. The Agreement becomes a binding contract by the earlier of the commencement of the supply of the Services, or the issue of a confirmation by the Consultant. Any designated commencement date, or any deviations from the Quotation or these General Terms and Conditions, in an issued purchase order must have been specifically confirmed by Consultant in order to apply.
2.2. In the event of any conflict, ambiguity or inconsistency between the documents forming the Agreement, the following order of precedence applies (a) the Additional Terms; (b) the Quotation; and (c) these General Terms & Conditions for Services. The foregoing is the exhaustive list of documents forming the Agreement and no other terms and conditions proposed by the Client (such as those appended to a purchase order) shall apply to the supply of the Services.
2.3. The Consultant will perform the Services in a timely manner and in accordance with any program for the provision of the Services attached to the Agreement or otherwise agreed in writing between the Parties.
2.4. The Consultant will be automatically entitled to an extension of time for the performance of the Services where it is delayed by an event beyond its reasonable control.
2.5. In providing the Services, the Consultant will exercise the degree of skill, care and diligence normally exercised by professional consultants performing services of a similar nature.
2.6. The Consultant will: (a) take reasonable measures to inform itself of the Client’s requirements in respect of the Services (although it is agreed that the Client will ensure that it provides the Consultant with all information as is reasonably necessary to enable the Consultant to provide the Services); and (b) promptly inform the Client if it: (i) considers that it has insufficient information to enable it to satisfactorily perform the Services; or (ii) becomes aware of any matter (including any inaccuracies in information provided to it) which may materially affect the scope of the Services.
2.7. Where the Consultant informs the Client that it requires further information to enable it to satisfactorily perform the Services, the Client must promptly provide such further information to the Consultant.
2.8. The Consultant may engage sub-contractors or other consultants to assist it in providing the Services without obtaining the consent of the Client. However, the Consultant is not responsible for the performance of third parties who are engaged by the Consultant on behalf of the Client in relation to the Services, such as Classification Societies, makers etc., although the Consultant will use its reasonable endeavours to ensure the performance of such third parties.
2.9. Nothing in this Agreement shall be deemed to limit or restrict contractors, to engage in any other business or to devote time and attention to the management or other aspects of any business, whether of a similar or dissimilar nature, or to render investment advisory services or services of any kind to any other corporation, firm, association or individual. The Client understands that the Consultant provides services to numerous other clients and accounts.
3. Fee and Scope of Services
3.1. The Fee is based on the Services specified in the Quotation. Where it is specified in the Quotation that items will be charged ‘at cost’, the Consultant’s actual costs will be payable by the Client as part of the Fee or Reimbursable Expenses (as applicable).
3.2. The Client may, by notice in writing, request that the Consultant change the scope of the Services (the term “change” in this Clause 3 includes changes to the duration of the Service and its commencement time). The requested change shall only become a requirement when agreed to by the Consultant, but it is agreed that the Consultant shall not unreasonably withhold its agreement to give effect to any reasonable change to the Services requested by the Client and that is within the general scope of the Services.
3.3. If there is an event beyond the control of the Consultant, which necessitates a change to the Services, the Consultant must provide details of the extent to which the Services need to change due to the event and will automatically be deemed approved, unless the Client objects within three working days. The change approval by Client shall not be unreasonably withheld. For the avoidance of doubt, the approval of the Client is not required to entitle the Consultant to an extension of time to which it is entitled pursuant to this Clause 3. If the Client rejects the change the Consultant is not required to comply with the event in performing the Services and may (in its absolute discretion) terminate this Agreement immediately.
3.4. Where a change to the Services: (a) requested by the Client under clause 3.2 is one which the Consultant must give effect to; or (b) is approved by the Client (including pursuant to clause 3.3), the Consultant will be entitled to: (i) an adjustment of the Fee by a reasonable amount reflecting the increased costs of performing the Services as a result of the change to the Services together with a reasonable amount for overheads and profit; and (ii) a reasonable extension of time for providing the Services; (iii) an extended duration of the Service and the designated commencement/completion time.
4. Payment
4.1. The Client shall pay to the Consultant the Fee and the Reimbursable Expenses. The Fee is stated exclusive of VAT or equivalent applicable sales tax which must also be paid by the Client. The Client shall also be liable to pay any tax, duty, levy or charge of any kind imposed by any state or state authority by reason of the provision of the Services (other than tax on the Consultant’s overall net income imposed in a state in which the Consultant is based for tax purposes).
4.2. The Client agrees to pay all invoices for the Services as set out in the Quotation. The Consultant reserves the right to charge interest at an annual rate of 2% above the greater of the Base Rate of the Bank of England or, at the discretion of the Consultant, the equivalent in the country where the Client maintains its principal office (both before and after judgment) on any amount remaining unpaid beyond 30 days from the date of the invoice, and may withhold any or all Services until the arrears, including interest, are paid.
4.3. The Client shall pay to the Consultant all sums when due without any deduction or withholding other than as required by mandatory law (and where any deduction or withholding is required by mandatory law the Client shall increase the amount payable to the Consultant to reflect the amount that the Consultant would have received if no deduction or withholding had been made) and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Consultant in order to justify withholding payment of any such amount in whole or in part.
5. Insurance
5.1. The Consultant shall hold and maintain professional indemnity insurance, public liability insurance, and workers compensation insurance or National Insurance as required by applicable law and the Consultant’s own business requirements.
5.2. The Client shall hold and maintain the following insurances (“Client Insurances”): (a) All-risk property insurance for the Place of Work. If applicable, all-risk property insurance can be replaced by a hull and machinery insurance for ships, rigs, mobile offshore units (MOU), or similar; (b) Employer’s Liability insurance for its own personnel. Where applicable such insurance to replaced with a P&I insurance for ships, rigs, MOUs or similar; (c) Where applicable, Worker’s Compensation insurance or National Insurance in accordance with applicable laws; (d) Where applicable, war risk insurance.
5.3. The Client shall provide the Consultant with evidence of the Client Insurances prior to the Consultant rendering the Services.
6. Ownership, use and nature of materials
6.1. Other than title to and rights in respect of drawings, designs, reports, electronic records and other documents and concepts which have been supplied by the Client (“Client Supplied Items”), and unless specified otherwise in the Quotation, the Consultant shall own and retain all right, title to and copyright and other intellectual property rights in any Contract Documents. Where it is stated in the Quotation that specific intellectual property rights in specified Contract Documents shall pass to the Client, such transfer shall only relate to such specified items and shall only occur following payment of all Fees and the Reimbursable Expenses which are due in relation to the purchase order in question.
6.2. The Consultant is not required to provide the Client with an editable version of any of the Contract Documents. Regardless of ownership of the Contract Documents, the Client agrees that it shall not, without the prior written approval of the Consultant, alter or authorise or permit the alteration of any editable version of the Contract Documents. This clause 6.2 shall survive the termination of the Agreement for any reason.
6.3. Except for the Client Supplied Items (for which no licence is granted by the Consultant), the Client has a license to use the Contract Documents for the purposes for which those documents are prepared and provided to the Client. The Client must not use (including make copies) of the Contract Documents for any purposes other than that for which they were originally prepared. The Consultant agrees to indemnify the Client for any finally awarded damages which result from a third-party claim that the Contract Documents (except for the Client Supplied Items) infringe that third party’s intellectual property rights.
6.4. The license in clause 6.3 terminates on the termination of this Agreement by the Consultant pursuant to clause 9.3 or 9.4.
6.5. The Consultant, unless specifically instructed otherwise by the Client, is entitled to: (a) refer to the Services and any related project in respect of which the Services are provided; and (b) identify the Client and use any logo of the Client, for the purposes of promoting the services of the Consultant to third-parties.
6.6. The Client may share the Contract Documents with any third-party, but must draw any disclaimer and any applicable contractual restraints (as set out in the Agreement) contained within the Contract Documents to the third party’s attention prior to sharing the Contract Documents with the third party.
6.7. The Client grants the Consultant and its Affiliates with the right to use the Client Supplied Items for the purposes of providing the Services. The Client agrees to indemnify the Consultant and its Affiliates for any finally awarded damages which result from a third-party claim that the Client Supplied Items infringe that third party’s intellectual property rights.
7. Liability and Indemnity
7.1. Subject to clause 7.6, the aggregate liability of the Consultant and its Affiliates to the Client and its Affiliates arising out of or in connection with the performance or non-performance of the Services (whether under the law of contract, tort or otherwise) is limited to the lesser of: (a) $150,000; (b) an amount equal to the Fee.
7.2. Subject to clause 7.6, in no event will the Consultant be liable under or in relation to this Agreement (whether arising from breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty, or otherwise) for any of the following types of loss or damage arising under or in relation to this Agreement: (a) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, any loss of market, or any loss or corruption of data (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or (b) any indirect or consequential loss or damage whatsoever, even if the Consultant was aware of the possibility that such loss or damage might be incurred by the Client.
7.3. Except as specifically provided in this Agreement, the Consultant does not give any warranty or accept any liability in relation to the performance or non-performance of the Services except to the extent, if any, required by law.
7.4. If, apart from clause 7.3, any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law hereby excluded.
7.5. The Client hereby releases and indemnifies the Consultant from and against all claims, costs, expenses, losses or damages suffered or incurred by the Client arising out of or in connection with any damage, loss, deterioration or destruction of any of the Client’s or its Affiliate’s property including samples or property to be tested or analysed by the Consultant except to the extent that the damage, loss, deterioration or destruction arises due to the negligence of the Consultant.
7.6. Nothing in these General Terms & Conditions for Services shall limit or exclude the liability of either Party for death or personal injury caused by its negligence, fraudulent misrepresentation or fraudulent concealment or for any other liability which cannot be limited or excluded by applicable law.
8. No Assignment
The Client cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Consultant. The Consultant may assign, novate or otherwise transfer any of its rights or obligations to any Affiliate of the Consultant.
9. Termination
9.1. In the event that the Consultant is providing the Services on spot basis, this Agreement terminates automatically when each Party has completed its obligations under this Agreement.
9.2. In the event that this Agreement concerns Ship Inspection Service or other Services requiring a longer time for completion/regular basis, either Party may terminate this Agreement for convenience by giving 30 days prior written notice to the other Party.
9.3. Irrespective of 9.1 or 9.2, the Client may terminate this Agreement if the Consultant is in material breach of this Agreement and that breach has not been remedied within 30 days after receipt by the Consultant of a written notice from the Client identifying the breach and requiring it to be remedied.
9.4. Irrespective of 9.1 or 9.2, the Consultant may suspend the provision of the Services or terminate this Agreement: (a) if any money payable to the Consultant has been outstanding for more than 14 days; (b) if the Client is in material breach of this Agreement and that breach has not been remedied within 14 days after receipt by the Client of a written notice from the Consultant identifying the breach and requiring it to be remedied; or (c) immediately: (i) if the Consultant has reason to believe that the Client is insolvent, bankrupt, has or will have a petition presented, an order made or a resolution passed for its liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution, or is likely to become not able to pay its debts as and when they fall due; or (ii) in the circumstances specified in clause 3.3.
9.5. If the Consultant suspends the provision of the Services pursuant to clause 9.4 it may at any time thereafter: (a) if the event which entitled the Consultant to suspend the performance of the Services is remedied, recommence performance of the Services; or (b) otherwise terminate the Agreement at any time after commencing the suspension. If the Consultant recommences the performance of the Services pursuant to paragraph (a) the Client must indemnify the Consultant against any costs, losses or expenses suffered or incurred by the Consultant arising out of or in connection with the suspension.
9.6. Upon termination of this Agreement the Consultant is: (a) immediately entitled to payment of that portion of the Fee and Reimbursable Expenses in respect of Services performed up to and including the date of termination, and any interest payable on that amount; and (b) where the Consultant has terminated the Agreement pursuant to clause 9.4, entitled to recover any costs, losses and damages suffered or incurred by it arising out of or in connection with any breach of contract by the Client or the termination of the Agreement.
9.7. Termination or expiry of this Agreement shall not prejudice any of the Parties’ rights and remedies which have accrued as at termination or expiry.
9.8. Without limiting any other provision which as a matter of interpretation may survive the termination of this Agreement, the provisions of clauses 4, 6, 7 and 9 survive termination of this Agreement.
10. Governing Law and Jurisdiction
10.1. The Agreement shall be governed by and construed in accordance with English law.
10.2. The Parties shall first attempt to resolve any dispute arising out of or in connection with this Agreement by negotiation.
10.3. If the Parties are unable to resolve such dispute within thirty (30) days of commencing negotiations, such dispute may, upon the application of either Party, be referred to and finally resolved by arbitration under the London Maritime Arbitrators Association (“LMAA”) Terms current at the time when the arbitration proceedings are commenced, except that where neither the claim nor any counterclaim exceeds the sum of fifty thousand US Dollars (USD50,000) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure. The number of arbitrators shall be three, except that the reference shall be to one sole arbitrator where the LMAA Small Claims Procedure applies. The seat, or legal place, of the arbitration shall be London, England. The language to be used in the arbitration shall be English.
10.4. Nothing shall preclude either Party from the right to seek in any jurisdiction security or interim orders (by means of an appropriate remedy of relief including, without limitation, in rem arrests, injunctions, attachments, seizures, sales, detention, exercise of any lien or otherwise howsoever) in each case in accordance with any relevant local law or regulation in respect of claims arising in any jurisdiction. Nothing shall preclude the Consultant from seeking to enforce any outstanding or overdue debt or payable invoice in the courts of any competent jurisdiction in accordance with any relevant local law.
11. Force Majeure
No failure or omission by either Party to carry out or observe any of the stipulations, conditions or warranties to be performed as set out herein shall give rise to any claim against such Party or be deemed to be a breach of this agreement to the extent that such failure or omission arises from causes reasonably beyond the control of such Party. Costs reasonably incurred by the Consultant as a consequence of the force majeure or to overcome the force majeure shall be reimbursed by Client. The obligation to pay remuneration for the Services shall not in any circumstances be deemed as a force majeure.
12. Client’s Facilities
The Client shall make available to the Consultant all office space and other Client’s facilities reasonably required and all records, documents and other data of the Client reasonably requested by the Consultant during the period of this Agreement.
13. Place of Work
13.1. Client shall provide the Consultant with access to the place of work (e.g. vessel or rig etc.) in relation to which Services are to be provided, at the time and location specified in the Quotation. If there is no time or location specified in the Quotation, the Consultant will in any case be provided with the access required to provide the Services, at an agreed time and location. Reimbursable Expenses shall include any costs incurred by the Consultant if it is prevented from carrying out its obligations under these General Terms & Conditions for Services because of restricted access to the required worksite or restricted work hours.
13.2. The Client undertakes that it will provide a safe place of work for the Consultant and all specialists / inspectors and other individuals employed or engaged by the Consultant or its subcontractors in relation to the Services. This duty relates to places of work which are under the control of the Client which can include ships, shipyards, offshore platforms, factories, foundries, refineries and offices.
14. Supersession of Contract
14.1. This Agreement constitutes the entire agreement between the Parties and it supersedes any prior written or other agreement of the Parties in relation to the subject matter. Each Party agrees it is not relying on, and shall have no rights or remedies in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other Party in relation to the Agreement not embodied in the Agreement. Nothing in this clause excludes liability for fraud.
14.2. Variations to this Agreement may be made only when presented in writing and will only be considered valid when signed by both Parties subsequent to the date of signature of this Agreement.
15. Confidentiality
15.1. Each Party undertakes to keep confidential and not to disclose to any other person (except where necessary to perform the Agreement or required by law) any information of a confidential nature which it receives from the other Party under or in relation to this Agreement. For the avoidance of doubt, the terms of this Agreement and its commercial terms are confidential and Consultant shall be entitled to share information with its Affiliates.
16. Ethical Standards
16.1. The Parties agree that neither Party shall: (a) offer or agree to give any person working for or engaged by the other Party any gift or other consideration, which could act as an inducement or a reward for any act or omission to act in connection with an Agreement or any other agreement between the Parties; (b) enter into this Agreement or any other agreement with the other Party if it has knowledge that, in connection with it, any money has been, or will be, paid to any person working for or engaged by the other Party or that an agreement has been reached to that effect unless (i) details of any such arrangement have been disclosed in writing to the other Party prior to the execution of the agreement and (ii) approval of such arrangement by an authorised representative of the other Party has been obtained; (c) offer, pay or promise to pay either directly or indirectly, anything of value to a public official in connection with this Agreement. The Parties further agree that in the performance of their respective obligations under this Agreement, the Parties and their respective agents, sub-contractors and employees shall comply with all mandatory laws, rules, regulations and orders of any applicable jurisdiction, including but not limited to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The Client shall notify the Consultant immediately in writing with full particulars in the event that the Client receives a request from any public official requesting illicit payments; or (d) take any other action which results in a breach by either Party of any applicable anti-corruption legislation.
16.2. The Parties confirm that they will adhere to the Consultant’s Code of Conduct and applicable law. If either Party or any of its agents, sub-contractors or employees breaches this clause 16, the other Party may terminate the Agreement by written notice with immediate effect. Any termination pursuant to this clause 16 shall be without prejudice to any right or remedy that has already accrued, or subsequently accrues to the terminating Party.
17. Sanctions and Export Restrictions
a. Consultant and Client warrant to one another that at the date of this Agreement, and throughout its duration, they are not in violation of any Sanctions and that they are not a Sanctioned Person, are not directly or indirectly acting on behalf of a Sanctioned Person, are not engaging in Sanctioned Activities, and are not utilising the services of or facilitating activities for the benefit of a Sanctioned Person.
b. In entering into and performing this Agreement, the parties shall at all times comply with any and all applicable Sanctions. In particular, Client shall not give any order to the Vessel or Consultant that would constitute a Sanctioned Activity.
c. Client acknowledge that Sanctions is a specialist area of international law. In the event that Consultant is required to carry out enhanced Sanctions checks or obtain legal advice in connection with this Clause upon or as a result of Client’s instructions under this Agreement, the costs of doing so shall be expenses for Client’s account, which shall be deemed ‘extraordinary expenditure’ outside the remuneration for the Services.
d. In the event that a party becomes aware that an Activity under this Agreement is or is about to be Sanctioned, it shall immediately notify the other party. In such case, the Activity shall be suspended, and the parties shall make reasonable efforts to resolve the issue.
e. Neither Party shall be required to do anything under or in connection with this Agreement if it would result in that Party being exposed to the risk of civil or criminal penalty or sanction (including the risk of designation) in any way related to Sanctioned Activities or Sanctioned Persons.
f. Either party may make reasonable requests for information from the other to satisfy itself that the other party is in compliance with this Clause. Both parties shall provide timely and truthful responses to any such reasonable enquiries.
g. For the purposes of this Clause: “Activity” means any activity, service, carriage, trade, port call or voyage under the Agreement; “Sanctioned Activity” means any activity of whatsoever nature which is prohibited under the sanctions laws of any Sanction Authority regardless of applicability. “Sanctioning Authority” means the United Nations, European Union, United Kingdom, United States of America, Norway or any other applicable competent authority or government, having relevant jurisdiction with respect to Sanctions; “Sanction” means applicable sanctions, trade restrictions, embargoes, export controls, decisions and orders, and/or similar restrictions imposed by a Sanctioning Authority and “Sanctioned” shall be construed accordingly; “Sanctioned Person” means any person, entity (whether incorporated or unincorporated) or organisation which (a) is located, resident in or incorporated under the laws of any country, region or territory that is or whose government is the target of comprehensive, country-, region-, or territory-wide Sanctions; and/or (b) has been designated with an asset freeze or equivalent restriction, or any related person within the scope of such an asset freeze, within the sanctions lists maintained by (i) any Sanction Authority, and/or (ii) any applicable authority with jurisdiction over any of the Parties.
h. If a party breaches this Clause or is itself the target of Sanctions or if any other entity which is involved in the Agreement is or becomes the target of Sanctions, the other party may immediately and without liability terminate this Agreement, if it reasonably considers (acting on credible information) that continued performance may expose it to a risk of breaching Sanctions or contributing to the breach of Sanctions.
18. General
18.1. A person who is not a Party to the Agreement may not enforce any provision under the Contracts (Rights of Third Parties) Act 1999 or otherwise, except the rights granted to Consultant’s Affiliates in clauses 6 and 7 may be enforced directly against the Client by that Affiliate.
18.2. If any provision, or part of a provision, of the Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of the Agreement and the legality, validity or enforceability of the remainder of the provisions of the Agreement shall not be affected, unless otherwise stipulated under applicable law.
18.3. The failure of a Party to exercise or enforce any right under the Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any times thereafter.
18.4. If the Client proceed with the employment of or continue to employ the Vessel in the carriage of contraband, blockade running, or in an unlawful trade, or on a voyage which in the reasonable opinion of the Consultant unduly hazardous or improper, the Consultant may give notice of the default to the Client, requiring them to remedy it as soon as practically possible. In the event that the Client fail to remedy it within a reasonable time to the satisfaction of the Consultant, the Consultant shall be entitled to terminate the Agreement with immediate effect by notice.
19. Data Protection
19.1. Each Party shall at all times comply with mandatory applicable laws and regulations relating to the protection of data, and are responsible to keep any personal data confidential and in compliance with the rules in the EU General Data Protection Regulation (“GDPR”). Each Party confirms that it has implemented appropriate information security measures. BIMCO Personal Data Protection and Cyber Security Clauses for Shipman 2024 shall apply (by this reference).
19.2. Each Party shall, if required by applicable law, ensure that it has all appropriate rights and consents to pass personal data to the other Party for that Party to process in accordance with this Agreement.