TMC (MARINE CONSULTANTS) LTD. CONDITIONS OF BUSINESS
1. DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in this Article apply in this Terms and Conditions (the “Conditions”). All work conducted will be in governed by these Conditions.
TMC and the Client individually referred to as a “Party” and collectively as the “Parties”.
“Agreement”: any instruction or request for services by a Client and subsequent acceptance by TMC and performance of services by TMC for the Client. These Conditions, as may be amended by the written agreement of the Parties, govern each Agreement unless separate terms and conditions are agreed to in writing between TMC and the Client.
“Client”: the legal entity or organisation that purchases services from TMC.
“Confidential Information”: any information disclosed in whatever form, by a Party to the other Party including, but not necessarily limited to, technical, environmental, commercial, legal and financial information relating directly or indirectly to the Parties and/or to the Agreement.
“Deliverables”: all documents created by TMC or its employees, agents, subcontractors or, consultants in relation to the performance of the services.
“Duration”: the period specified in the Agreement during which TMC shall perform the Services.
“Effective Date”: the date on which the Agreement becomes official and binding.
“Force Majeure”: an event beyond the reasonable control of one Party, including but not limited to armed conflict, terrorist attack, civil war, riots, toxic hazards, epidemics, natural disasters, extreme weather, explosion, failure of utility service, labour disputes, breakdown of infrastructure, sanctions, or any public restrictions following any incidents above, or any other Force Majeure occurrence.
“Intellectual Property Rights”: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals, reversions or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world, as well as any Intellectual Property Rights owned by each Party as at the commencement date of the Agreement or otherwise created outside the scope of the Agreement.
“Services”: the services to be provided by TMC to the Client under the Agreement.
“TMC”: TMC (Marine Consultants) Ltd. or any of its affiliates specified in the relevant contract.
2. COMMENCEMENT & DURATION
2.1 Unless otherwise agreed by the Parties, the services performed under the Agreement shall be provided by TMC to the Client from the Effective Date of performance of the services.
2.2 The Effective Date shall be mentioned in the Agreement unless agreed otherwise by the Parties. In this case, the Effective Date will be agreed in written by the Parties at the beginning of the project.
3. SCOPE & PERFORMANCE
3.1 TMC warrants that it will conduct all work performed under this agreement with reasonable care and professional skill. If TMC does not comply with this warranty then, TMC shall take action as TMC consider necessary to remedy any errors or omissions in the conduct of the work.
3.2 TMC is not and may not be considered as an underwriter, broker in Unit’s sale or chartering, expert in Unit’s valuation, controller, designer, manufacturer, shipbuilder, repair or conversion yard, charterer or ship-owner, salvage operator; none of them above listed being relieved of any of their expressed or implied obligations as a result of the interventions of the Society.
4. TAXES & EXPENSES
4.1 Prices, rates and estimates provided by TMC do not include sales or value added taxes or customs duties that may be applicable to the work.
4.2 Prices rates and estimates shall be valid for a period of three months after they are made.
4.3 All expenses and disbursements incurred by TMC in pursuance of the work will be charged at cost.
4.4 Consultancy services fall within the UK VAT ‘basic’ Place of Supply Rules i.e. supplied in the country where our customer is established. Therefore, UK VAT at the current rate may be added to your invoice (EC business customers to provide their VAT number to confirm that their supply of services is subject to the VAT rules of that Member State).
5. PAYMENT & INVOICING
5.1 Payment shall be made within 30 days of the date of the invoice.
5.2 Unless otherwise agreed all payments shall be in pounds sterling.
5.3 If the invoice is not paid by the due date, overdue amounts may be subject to an interest charge at the rate of 10 percent per annum in accordance with the terms of the Late Payment of Commercial Debt Interest Act 2000, whichever is the higher.
5.4 If TMC does not comply with article 3.1 above, TMC shall refund all or any appropriate part of the fees charged for the work.
6. CONFIDENTIAL INFORMATION
6.1 TMC will ensure that Client’s Confidential Information provided will not be disclosed to a third party without the prior written consent of Client. TMC will use Client’s Confidential Information only in connection with performance of the Agreement and shall promptly advise the Client of any demands of disclosure.
6.2 Notwithstanding the above, Confidential Information that TMC can prove at disclosure is public knowledge, in the possession of TMC without binder of secrecy, is required to be disclosed under applicable law or by a governmental order, decree, regulation or rule or by a stock exchange authority or developed independently of Client’s Confidential Information is not Confidential Information. Restrictions on disclosure of Client’s Confidential Information will cease if TMC can prove that the information has become part of the public knowledge through no fault of TMC or is subsequently disclosed to TMC without an obligation of confidentiality by a third party who has the legal right to do so.
6.3 The Client grants to TMC and its permitted affiliates, agents and sub-contractors a non-exclusive, royalty-free license to make use of such Confidential Information for the duration of the Agreement for the purposes of carrying out the Services.
6.4 On Client’s request, TMC will return promptly any Confidential Information and delete it from electronic storage, and delete or destroy all extracts or analyses that reflect any Confidential Information.
7. INTELLECTUAL PROPERTY RIGHTS, DATA PROTECTION & OWNERSHIP
7.1 Except for Intellectual Property Rights vested with TMC, all ownership rights, title, and interest in and to Services will vest with Client.
These Conditions do not grant TMC any rights, title, or interest in or to Client’s Intellectual Property Rights, other than those set out in these Conditions. Intellectual Property Rights created by modifications, amendments, enhancements, or improvements to Client’s Intellectual Property Rights, or made using Client’s Confidential Information, will vest with Client or its nominee when created.
7.2 TMC, warranting that it is entitled to do so, grants to Client the irrevocable, non-exclusive, perpetual, worldwide, royalty-free right and license, with the right to grant sub-licenses, to possess, and use any of TMC’s Intellectual Property Rights embodied in Services, including the right to import, export, operate, sell, maintain, modify, and repair Services. TMC warrants that any possession or use of Deliverables as delivered by TMC or of TMC’s Intellectual Property Rights will not infringe the Intellectual Property Rights of any third party.
7.3 TMC shall maintain copies of Deliverables issued in accordance with its record retention policies and document retention policies as may be required by law or accreditation bodies.
7.4 Client’s ownership rights in Services under this article will not extend TMC’s Intellectual Property Rights:
- Pre-existed the performance under the Agreement;
- Are developed independently from performance of the Agreement or;
- Are used by TMC in connection with or to perform the Agreement, but are not based on or arising out of Client’s Intellectual Property Rights or Confidential Information.
8.1 TMC accepts liability for and holds harmless and indemnifies the Client against:
- All claims, losses, costs and liabilities arising from death, sickness or injury to a TMC employee, agent, servant or officer or;
- Damage to or loss of property or equipment owned, rented or leased by an employee, agent, servant or officer of TMC, however caused.
8.2 The Client accepts liability for and holds harmless and indemnifies TMC against:
- All claims, losses, costs and liabilities arising from death, sickness or injury to any employee, agent, servant or officer or the Client or any third parties, or;
- Damaged to or loss of vessels, property or equipment owned, rented, chartered or leased by the Client or any third party or;
- The costs of any incident of pollution including clean-up costs and any financial penalties imposed arising in association with the conduct of the work, however caused.
8.3 TMC bears no liability for consequential loss. For the purpose of this clause consequential loss shall include, without limitation:
- Indirect or consequential loss;
- Any loss and/or deferral of production, loss of product, loss of use, loss of bargain, loss of revenue, loss of profit or anticipated profit, loss of business and business interruption, in each case whether direct or indirect.
The Client shall defend, release, save, indemnify, and hold harmless TMC from the Client’s own consequential loss or any third party’s consequential loss, regardless of cause.
8.4 In the event that the Client proves that the loss, damage, delay or expense was caused by the negligence, gross negligence or wilful default of TMC aforesaid, then, save where loss, damage, delay or expense has resulted from the surveyor’s/consultant’s personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result TMC’s liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a sum calculated on the basis of two (2) times TMC’s charges or £125,000 whichever is the greater.
9. PROFESSIONAL LIABILITY INSURANCE
The Parties shall effect and maintain, at no cost to the other Party, Professional Liability Insurance for such loss, damage and liability for which the Party may be held liable to the other Party.
Without prejudice to any other right or remedy that it may have, if the Client fails to pay TMC on the due date, TMC may suspend all Services until payment has been made in full.
11.1 Either Party may terminate the Agreement after giving a thirty (30) days’ notice of termination to the other Party in writing.
11.2 All fees, expenses, disbursements and outstanding obligations incurred by TMC shall be paid up until the date of the termination.
12. FORCE MAJEURE
Any delay in performance under the Agreement that arises out of an event that cannot have reasonably been foreseen shall be considered a Force Majeure and will not render either Party in breach of the Agreement.
13.1 The Agreement for Services, inclusive of these Conditions, constitutes the complete contractual agreement between TMC and the Client.
13.2 The Agreement for Services, inclusive of these Conditions, supersedes all previous agreements for the same Services between TMC and the Client and excludes all other statements, conditions, terms and warranties both expressed and implied and those provided by law or statue unless they cannot be excluded by law or statute.
13.3 Where the Courts determine that a term or terms of these Conditions are unreasonable such terms shall be excluded from the Conditions whilst the remainder of the Conditions shall remain valid in its entirety.
13.4 Neither Party shall assign or otherwise dispense with its rights or obligations under the Agreement without the written agreement of the other.
13.5 If TMC do not enforce any of their rights under the Agreement this shall not be interpreted to imply that such rights have been waived during the currency of this or any future Agreements.
13.6 Any variations of the Agreement are to be agreed in writing and signed by authorised representatives of both parties to the Agreement.
13.7 No amendments, changes or modifications to these Conditions shall be valid except if the same are in writing and signed by a duly authorised representative of each of the Parties hereto.
14. GOVERNING LAW & DISPUTE RESOLUTION
14.1 These Conditions shall be governed and interpreted by English Law.
14.2 Any disputes arising between TMC and the Client shall be resolved by an arbitrator to be appointed by the London Court of International Arbitration in arbitration proceedings conducted in accordance with the Rules of the London Court of International Arbitration.
14.3 The number of arbitrators shall be three (3). The place of arbitration shall be London (UK). The language of dispute and arbitration shall be the English language. The arbitration decision shall be final and binding on the Parties. The Parties agrees that the proceedings shall be confidential.
14.4 Notwithstanding clause 14.2, disputes relating to the payment of TMC’s invoices may be submitted by the TMC to the Courts of London, or to any other competent local Court, at TMC’s entire discretion.
15. CODE OF ETHICS
15.1 Each Party shall conduct all activities in compliance with all laws, statutes, rules, economic and trade sanctions (including but not limited to US sanctions and EU sanctions) and regulations applicable to such Party including but not limited to: child labour, forced labour, collective bargaining, discrimination, abuse, working hours and minimum wages, anti-bribery, anti-corruption, copyright and trademark protection, personal data protection (https://personaldataprotection.bureauveritas.com/privacypolicy). Each of the Parties warrants that neither it, nor its affiliates, has made or will make, with respect to the matters provided for hereunder, any offer, payment, gift or authorization of the payment of any money directly or indirectly, to or for the use or benefit of any official or employee of the government, political party, official, or candidate.
15.2 In addition, the Client shall act consistently with the TMC’s Code of Ethics and, when applicable, the Business Partner Code of Conduct available at https://group.bureauveritas.com/group/corporate-social-responsibility