The following Standard Terms and Conditions shall apply for all work where the client forms a contract with OWC (Aqualis) GmbH, our German entity.
OWC (AQUALIS) GmbH
TERMS AND CONDITIONS OF ENGAGEMENT
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"Agreement" means the agreement between the Company and the Client for the provision of Services as set forth in the Engagement Letter and these Conditions.
"Client" means the person, company, firm or organisation or other legal entity, as identified in the Engagement Letter, which has requested the Company to provide Services.
"Client Group" means the Client, its subsidiaries, parent enterprises, affiliated enterprises, customers, co-venturers, and contractors of any tier from time to time, and their respective officers, representatives, employees, agents, consultants and subcontractors (but excluding any member of the Company Group).
"Subsidiary", "parent enterprise" and "affiliated enterprise" shall have the meaning as set out in Section 15 et seq. German Stock Corporation Act (Aktiengesetz).
"Company" means OWC (Aqualis) GmbH.
"Company Group" means the Company, its subsidiaries, parent enterprises, and affiliated enterprises, and their respective officers, representatives, employees, agents, consultants and subcontractors. "Subsidiary", "parent enterprise" and "affiliated enterprise" shall have the meaning as set out in Section 15 et seq. German Stock Corporation Act (Aktiengesetz).
"Conditions" means these Terms and Conditions.
"Consequential Loss" means (i) any and all consequential (Mangelfolgeschäden) or indirect loss under German law and (ii) any or all loss and/or deferral of production, loss of revenue, profit or anticipated profit (if any), loss of use, loss of product, whether direct or indirect and whether or not foreseeable.
"Engagement Letter" means the Company's letter describing the Services to be performed and the terms under which such Services are being provided; these Conditions shall form an integral part of the Engagement Letter and shall be included therein by reference.
"Fee" or "Fees" means the amount payable by the Client as remuneration for the Services provided by the Company.
"Party" means a party to the Agreement, and "Parties" means all of the parties to the Agreement.
"Services" means the services or work to be provided or supplied by the Company to the Client as set out in the Engagement Letter.
"Third Party" shall mean any person, company, firm, organisation or other legal entity which is not a member of either the Company Group or the Client Group.In these Conditions, the following definitions apply:
2. Basis of Contract
2.1 The Engagement Letter, together with these Conditions, constitutes the entire agreement between the Parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company that is not set out in the Engagement Letter or the Conditions.
2.2 These Conditions apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate (including its own terms and conditions) or which are or may be implied by statute, trade, custom, practice or course of dealing, unless the Company has expressly agreed to their validity in writing.
2.3 Any contractual arrangements agreed individually by the Parties to the contract which conflict with the clauses of these Conditions shall have priority over these Conditions.
2.4 Unless otherwise agreed in writing between the Parties, these Conditions shall also apply to any other services of whatever nature as may be provided by the Company to the Client.
3. Provision of Services by the Company
3.1. The Company shall use reasonable care, diligence and skill in performing the Services.
3.2. The Company shall use reasonable endeavours to meet any performance dates that may be specified, but any such dates shall be treated as estimates and time shall not be considered to be of the essence for performance of any Services.
3.3. The Services to be provided by the Company shall be as described in the Engagement Letter. The Company has the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirements.
3.4. The Services are provided by the Company to the Client on an exclusive basis. Unless otherwise agreed in the Engagement Letter, the Company shall have no liability or responsibility to any Third Party in connection with the provision of the Services.
3.5. Where the Services to be performed by the Company require a survey or valuation to be undertaken, the Company shall use reasonable endeavours to provide a survey or valuation corresponding to the current market value of the item to be valued. No warranty is given by the Company as to the satisfactory operation of any equipment, machinery or product that is surveyed or valued by the Company.
3.6. Where Services are to be provided or performed by the Company in a foreign jurisdiction (i.e., other than Germany) or are related to property found in such jurisdictions, the Client shall obtain any and all necessary governmental and regulatory consents and approvals required to enable the Company to provide or perform the Services. The Company shall be under no obligation to provide any Services until such time as the Client has obtained any necessary consents and approvals.
3.7. In the performance of the Services neither the Company nor any member of the Company Group shall be required to contravene, breach, or engage in activity sanctionable under any applicable law, sanction, prohibition, or regulation imposed by any national, supranational, or international government organisation or body, including but not limited to any sanctions administered or imposed by the United States (including any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including any sanctions administered or enforced by Her Majesty's Treasury) or other relevant sanctions authority.
4. Client's Obligations
4.1 The Client shall:
(a) provide the Company with complete and accurate information and materials as the Company may reasonably require and in sufficient time to enable the Company to provide or perform the Services in an efficient and effective manner;
(b) co-operate with the Company in all matters relating to the provision or performance of the Services;
(c) provide the Company with safe access to the Client's premises, office accommodation, vessels, installations and other facilities as may reasonably be required in the performance of the Services; and
(d) comply with its payment obligations as set out in Clause 5.
4.2 If the provision of Services by the Company is prevented or delayed by any act, omission or failure by the Client in the performance of its obligations, the Company shall be entitled to suspend or delay performance of the Services until such time as the act, omission or failure by the Client has been remedied.
4.3 The Client shall indemnify the Company for any loss, liability cost or expense arising directly or indirectly by reason of a default on the part of the Client in fulfilling its obligations under this Agreement.
5.1. The Fee due and payable by the Clients to the Company shall be calculated in accordance with the terms set out in the Engagement Letter.
5.2. The Company is entitled to charge the Client for any expenses reasonably incurred in the performance of the Services including but not limited to travelling expenses, accommodation costs and any other reasonable incidental expenses on a cost (including VAT where applicable) plus 10% basis unless otherwise agreed in the Engagement Letter. The Client shall reimburse the Company for the cost of any services provided by Third Parties who may be instructed by the Company, with the prior approval of the Client, to assist in the performance of the Services.
5.3. Should the Company be required to provide services in addition to those specified in the Engagement Letter, the Client shall pay a supplemental fee for such additional services in accordance with the Company's standard hourly rates or such other rate or fee as may be agreed between the Parties. So far as is reasonably possible any additional services and fees shall be agreed in writing in advance of such additional services being carried out.
5.4. Unless otherwise stated in the Engagement Letter the Company shall invoice the Fee to the Client on a monthly basis. The Client shall pay the amounts invoiced without deduction or set-off within 14 days from the date of the invoice unless agreed otherwise in the Engagement Letter. Time for payment is of the essence.
5.5. The Company reserves the right to request funds on account from the Client in respect of any anticipated expenses, Third Party services and/or Fees. Such funds will be held on account until the completion of the Services and will be drawn down upon to settle any outstanding Fees and/or Third Party costs/ expenses incurred on behalf of the Client. Any excess funds on account will thereafter be returned to the Client at the conclusion of the Services. If there are insufficient funds on account to meet the Fees and/or Third Party services/expenses, payment of any balance shall fall due in accordance with Clause 5.4 above.
5.6. Fees charged by the Company are exclusive of amounts in respect of value added tax chargeable (VAT) or similar applicable sales taxes. Where any taxable supply for VAT purposes is made under this Agreement the Client shall, on receipt of a valid VAT invoice pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7. The Client is responsible for the payment of all other taxes (excluding any taxes on profits or corporation tax chargeable on the Fees received by the Company), including but not limited to withholding taxes, service taxes, duties and other fiscal charges which may be levied or become due in respect of the Fees.
5.8. The Client shall pay all amounts due under the Agreement in full without any deduction or withholding. The Client is not entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any amount due in whole or in part, unless any such counterclaim has either been finally recognised by court verdict or arbitration award, or has been agreed by the Company. Should any amounts be required by law to be deducted or withheld from any amount due under this Agreement, the Client shall pay to the Company an amount such that the net amount received by the Company would be the same as if no such withholding or deduction had taken place.
5.9. Any failure by the Client to make payment in full by the due date shall entitle the Company to charge interest on the overdue amount according to §§ 286, 288 BGB (base interest rate plus nine per cent (9%) per annum accruing on a daily basis from the due date until the date of payment).
5.10. Any failure on the part of the Client to make payment of an invoice shall entitle the Company, without prejudice to any other rights it may have, to suspend the performance of the Services until such time as payment has been made in full including the payment of any interest due.
6. Amendment and Variation
6.1. Except as otherwise provided any amendment or variation, including the introduction of any additional terms and conditions, to the Agreement, shall only be binding when agreed in writing and signed by the Company and the Client.
6.2. Any additional costs, expenses or fees which may be incurred by the Company in connection with an amendment or variation of the Agreement shall be borne by the Client. Notwithstanding any prior agreement between the Parties as to a fixed Fee, the Company may make the necessary adjustments to the Fee should it become aware of the inaccuracy or inaccurateness of any information provided to it by the Client or if the assumptions contained in the Engagement Letter are incorrect.
6.3. In the event that it becomes necessary for the Company to amend or vary the arrangements relating to the provision and performance of the Services due to circumstances outside its control, the Company shall notify the Client as soon as possible. The Company shall endeavour to keep any amendments or variations to a minimum and shall endeavour to offer the Client alternatives which are as close to the original arrangements as can be reasonably expected under the circumstances.
7. Limitation of Liability
7.1. The Company shall bear liability in respect of:
(a) personal injury including death or disease to any person, including those employed or subcontracted by the Client Group, arising or which may arise from, relate to or is in connection with the performance or non-performance of the Agreement, which are caused by the Company or by an intentional or negligent violation of obligations (Pflichtverletzung) of any of its representatives or agents;
(b) any intentional (vorsätzlich) or grossly negligent (grob fahrlässig) action or omission by the Company or by an intentional (vorsätzlich) or grossly negligent (grob fahrlässig) violation of obligations (Pflichtverletzung) of any of its representatives or agents;
(c) claims under the German Product Liability Act;
(d) claims based on a slightly negligent (leicht fahrlässig) breach of material contractual obligations (obligations the fulfilment of which is indispensable for proper performance of the contract and on the fulfilment of which the contracting Party usually relies and may rely on) in the amount of the damage that is typically foreseeable upon conclusion of the Agreement;
(e) loss or damage to property of the Client Group whether owned, hired, leased or otherwise provided by the Client Group arising or which may arise from, relate to or is in connection with the performance or non-performance of the Agreement.
7.2. Save as provided for claims pursuant to Clause 7.1,
(a) the Company shall bear no liability to the Client Group under the Agreement, whether contractual, tortious (including negligence), breach of statutory duty or otherwise, for the supply of the Services save where the Company has failed to perform the Services with the necessary reasonable care, diligence and skill;
(b) in relation to Clause 3.5, should any of the equipment, machinery or products contain latent defect(s) which were not apparent at the time the survey or valuation was conducted and could not reasonably have been expected to have been discovered by such survey, the Company shall bear no liability whatsoever in respect of such defects;
(c) the Company does not warrant in any way whatsoever the purpose or suitability of the Services to the extent permitted by law;
(d) subject to the existence of a joint and several liability (gesamtschuldnerische Haftung) according to § 421 BGB and following, in the event that the Company is held liable to the Client under the Agreement and a Third Party is also held liable in respect of the same claim, the Company shall only bear liability to the extent that such loss is attributable to the Company. The Client's failure or inability to recover its loss from the Third Party shall not increase the Company's liability hereunder.
(e) no representative of the Company shall bear any personal legal liability to the Client unless otherwise provided by statutory law.
7.3 Any proceedings against the Company in respect of any and all claims arising out of or in connection with this Agreement and the Services performed by the Company, whether contractual, tortious (including negligence), breach of statutory duty or otherwise (except for claims pursuant to Clause 7.1 which shall be governed by statutory limitation periods), shall be commenced within 12 months of the completion of the Services. If no such proceedings are commenced within 12 months as aforesaid then the Company shall be discharged and released from any liability in respect of any claims the Client may have against the Company.
8. Preparation of Site
8.1. In the event that the Services to be supplied by the Company to the Client include physical work to be carried out on premises or locations owned by the Client or under its access or control (the "Site"), any costs or expenses incurred in relation to the preparation of the Site shall be for the account of the Client.
8.2. The Client shall be deemed to have legal and operational control over the Site for the duration that the work is to be carried out by the Company. The Company shall not have or be deemed to have any legal or operational control over the Site and any of its officers, representatives, employees, agents, consultants and subcontractors who may be present at the Site shall be there only in an advisory capacity. Should the presence of the Company's officers, representatives, employees, agents, consultants and subcontractors be required on-board any mobile offshore drilling unit or other vessel owned, chartered or operated by the Client or any member of the Client Group (the "Unit"), legal and operational control over the Unit shall be deemed to be held by the Client at all times.
8.3. The Client shall procure that the Company has unobstructed and continued access to the Site in order to carry out the Services and shall make any necessary arrangements and procure any necessary facilities in order to enable the Services to be performed.
8.4. The Client shall make all arrangements and take all security measures to ensure that the Site is safe. The Client shall also carry out a safety briefing for the Company and its officers, representatives, employees, agents, consultants and subcontractors as the case may be and shall ensure that it is in compliance with all safety regulations, whether legal, statutory or otherwise.
8.5. In the event that the scope of the Services calls for any rig movement or tow master or mooring master activity to be carried out, this shall be deemed to have ended upon the final positioning or berthing of the Unit at the place specified in the Engagement Letter, unless otherwise expressly agreed between the Parties. Any pre-loading operations shall be performed exclusively by the Client, owner or operator of the Unit, as the case may be.
9. Intellectual Property Rights
9.1. All intellectual property rights in or arising out of or in connection with the Services shall be owned by the Company and no right to, interest in or licence to any intellectual property rights owned by the Company shall be granted to the Client.
9.2. Intellectual property rights that are the property of each Party prior to the date of this Agreement or developed outside the scope of this Agreement shall remain the sole property of that Party.
9.3. For any intellectual property rights created in the course of the provision or performance of the Services that are the property of the Company, the Company grants to the Client a non-exclusive and non-transferable royalty-free licence to use said intellectual property rights for use solely to as agreed in this Agreement, provided that any Fees invoiced by the Company have been paid by the Client in full.
10.1. Both Parties shall each maintain adequate and appropriate insurance cover for the liabilities arising out of or in connection with this Agreement. Any rights of subrogation which may be exercised by the Parties' respective underwriters shall be waived to the extent of any indemnities granted pursuant to this Agreement.
11.1. Both Parties shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, business secrets or initiatives which are of a confidential nature and have been disclosed to them in writing or orally (in which case the confidential nature is confirmed in writing), by the other Party, its representatives, employees, agents, consultants and subcontractors, and any other confidential information concerning the other Party's business or its products or its services.
11.2. Neither Party shall use the other Party's confidential information for any purpose other than to perform its obligations under the Agreement unless express prior written permission has been obtained or where required to do so by reason of any legal or statutory purpose or by order of a court of law.
11.3. Both Parties shall restrict disclosure of confidential information to such of its representatives, employees, agents, consultants and subcontractors as need to know it for the purpose of discharging the Party's obligations under the Agreement, and shall ensure that such representatives, employees, agents, consultants and subcontractors are subject to obligations of confidentiality corresponding to those which bind the Party receiving the confidential information.
11.4. This Clause 11 shall survive termination of the Agreement and each Party undertakes that it shall not for a period of five (5) years after termination of the Agreement, disclose to any person any confidential information pertaining to the other Party except as permitted under Clause 11.2.
12.1. Without in any way limiting its other rights and remedies, either Party may terminate the Agreement upon giving written notice to the other Party if:
(a) the other Party commits a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within (30) days of that Party being notified in writing of that breach and requiring the breach to be remedied.
(b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the respective applicable insolvency legislation;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies;
(d) the other Party (being an individual) is the subject of a bankruptcy petition or order;
(e) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other Party;
(f) a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
(g) the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(h) any event occurs or proceeding is taken with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 12.1(a) to (g).
12.2. The Company shall be entitled to terminate the Agreement, by giving 14 days written notice of intention, if the Client does not provide the necessary technical data/ drawings / other information needed to be able to carry out the agreed services or, with reference to Clause 5.3, if the Client does not issue further/additional written instructions in respect of other services requested that have not been identified within the original Engagement Letter.
12.3. Without limiting its other rights or remedies, the Company may terminate the Agreement after giving seven (7) days written notice to the Client if the Client fails to pay any amount due under the Agreement.
12.4. On termination of the Agreement for any reason:
(a) the Client shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest thereon if due and, in respect of Services supplied up to the date of termination but for which no invoice has been submitted, the Company shall submit an invoice which shall be payable by the Client immediately on receipt together with any additional reasonable costs incurred by the Company as a result of the early termination of the Agreement;
(b) the Company shall be entitled to retain any advance payment or deposit made by the Client in respect of the Fees;
(c) the accrued rights, remedies, obligations and liabilities of the Parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13. Suspension of Agreement
13.1. Should the Agreement be suspended due to any breach on the part of the Client or for any other reason attributable to the Client, the Client shall reimburse the Company for the following:
(a) any and all costs and expenses incurred by the Company in dismissing (and re- hiring) if necessary any employees hired specifically for the purpose of this Agreement;
(b) any and all costs and expenses incurred by sub-contractors under any subcontract entered into in furtherance of this Agreement;
(c) any and all other costs and expenses incurred by the Company in respect of the period of suspension; and
(d) loss of the Company's anticipated profits under this Agreement for the period of suspension.
13.2. The Company shall have the right (but shall not be obliged) to give notice of termination of the Agreement in the event any such period of suspension continues for a period of more than 7 days.
14.1. Assignment and sub-contracting
Neither Party shall, without the prior written consent of the other, assign or transfer any of its rights or obligations under the Agreement, such consent not to be unreasonably withheld. The Company shall be entitled to subcontract its obligations under the Agreement to a reputable sub-contractor and, where possible, shall notify the Client prior to the appointment.
Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered to the other Party by hand or sent by facsimile or sent by recorded delivery to the registered address as set out in the Engagement Letter. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by recorded delivery, at 9 am on the second business day after posting, or if sent by fax, on the next business day after transmission.
A waiver of any rights under the Agreement by the Company shall only apply to the specific matter of which it is the subject and shall only be effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default on the part of the Client. No failure or delay by the Company in exercising any rights or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
If a court or any other competent authority finds that any provision of the Agreement (or any provision or apart of any provision) is invalid, illegal or unenforceable, the Parties agree that this provision or part provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected. It is the express intent of the Parties that the validity and enforceability of all other provisions of this Agreement shall be maintained and that this Section 15.4 shall not result in a reversal of the burden of proof but that Section 139 of the German Civil Code (BGB) is hereby excluded in its entirety.
14.5. Third Parties
For the purpose of Section 328 German Civil Code (Bürgerliches Gesetzbuch), this Agreement shall not constitute an agreement for the benefit of a third party (echter oder unechter Vertrag zugunsten Dritter).
14.6. Force Majeure
For the purpose of the Agreement, a Force Majeure Event means an event beyond the reasonable control of either Party including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of either Party or otherwise), act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. Neither Party shall be liable to the other as a result of any delay or failure to perform its obligations under the Agreement as a result of a Force Majeure Event. If the Force Majeure Event continues for a period of 14 days or more, either Party shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to the other Party.
15. Governing Law and Jurisdiction
15.1. This Agreement is governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention for the International Sale of Goods (CISG) and the conflict of laws rules.
15.2. All disputes arising out of or in connection with this Agreement shall be finally settled by arbitration under the Rules of Arbitration of the ICC (the "ICC Rules") by one arbitrator appointed in accordance with the ICC Rules in effect at the time of application without recourse to the ordinary courts of law. The language of the arbitral proceedings shall be English. The place of arbitration shall be Hamburg, Germany.