Service Terms & Conditions
Fassmer Singapore Pte. Ltd.
SERVICE TERMS AND CONDITIONS
All quotations, invoices or service documents issued by the Company in relation to the Services and all orders placed by the Customer with the Company in relation to the Services shall be subject to these terms and conditions below (“Terms
”), which shall apply to the exclusion of all other terms and conditions or agreements or arrangements between the Company and the Customer in respect of the Services, save in so far as any other special terms and conditions that are expressly agreed to in writing by the Company and the Customer. Notwithstanding the foregoing and any other clauses in these Terms, the Company may at any time in its sole discretion amend the Terms and shall notify the Customer in writing of any such amendments. Interpretation
Within these Terms, unless the context otherwise requires:-
“Business Day” means a day (other than a Saturday or a Sunday) on which banks are open for business in Singapore;
“Company” means Fassmer Singapore Pte. Ltd., a Singapore incorporated company;
“Completion” means the completion of the Services;
“Contract” means the contract to provide Service;
“Customer” means the natural person(s) or legal entity (including a firm or company) to whom the quotation is addressed or to whom the offer is made in respect of the Services and shall include their officers, employees, representatives, successors and/or permitted assignees (as applicable);
“Items” means, including but not limited to, the materials, products, equipment, installations, parts, or any repair works that are supplied, sold or performed (as the case may be) by the Company in relation to the provision of the Services and execution of Services;
“Liability Limit” has the meaning ascribed to it in Clause 26;
“LIBOR” means the London interbank offered rate;
“Object of has the meaning ascribed to it in Clause 15.1;
“Handover” means the handover of the ship, vessel or Object of Performance by the Company to the Customer upon Completion;
“Services” means the services that the Company provides to the Customer in relation to the Company’s quotation or offer in accordance to these Terms, including but not limited to the performance of inspections, maintenance and repairs on equipment or parts and all related works thereto of ships and other water vessels, or (as the case may be) the provision of parts or equipment to the Customer;
“Terms” means these terms and conditions, as may be amended from time to time;
“Parties” means the Company and the Customer, and a “Party” means either the Company or the Customer as the context so requires;
“Price” means the price for the Services; and
“Validity Period” has the meaning ascribed to it in Clause 2.
References to Clauses and Recitals are to the clauses and recitals of these Terms.
Offer and Acceptance.
- The Company’s quotation or offer will remain open for acceptance for the period stated in the Company’s quotation or offer, or if no such period is stated, the period of 30 days from the date that the quotation or offer is delivered to the Customer (“Validity Period”). Upon the expiry of the aforesaid Validity Period, the Company’s quotation or offer shall lapse and the Price provided therein will be subject to review at the time the order is placed.
- The Company’s quotation or offer may be revised in whole or part or withdrawn by the Company prior to expiration of the Validity Period or acceptance of the quotation or offer.
- A quotation or offer issued by the Company shall become binding upon the Parties only upon the Company’s receipt from the Customer of an unconditional written acceptance in such form as the Company may require from time to time. Such an unconditional written acceptance shall result in a contract for the provision of Services in accordance with the terms of the relevant quotation or offer and these Terms (“Contract”).
- If the Customer’s acceptance of the Company’s quotation or offer is conditional, the Company may at its absolute discretion elect to accept or reject such conditional acceptance. Such conditional acceptance will only become binding on the Parties if the Company notifies the Customer in writing of the Company’s acceptance of such conditional acceptance.
Prevalence of Quotation or Offer
- Should there be any inconsistencies between the Company’s quotation or offer and these Terms, the Company’s quotation or offer shall prevail.
Errors in Company Documents
- Clerical errors and misprints in computation, typing or otherwise in the Company’s documentation including but not limited to catalogues, price lists, quotations, offers, invoices, statements or credit notes shall be subject to correction by the Company by means of reissue of the document with reference to the original transaction. Any such errors or misprints will not entitle the Customer to a reduction or variation in the Price in respect of the Services or in the Company’s or Customer’s obligation under the Contract. Scope and Execution of the Services.
- The scope of Services and its proper execution shall be clearly indicated in the Company’s quotation or offer. The Customer when giving its acceptance shall in doing so verify and confirm the scope of Services as indicated.
- The Company does not and shall not be required to verify the accuracy or completeness of any information or guidelines (whether technical or otherwise) provided by any classification society or of any of their representatives. The Company does not and shall not be required to examine the ship or vessel or any items to which the Services are rendered for the purpose of identifying latent defects.
- The Services shall be carried out in accordance with the Company’s usual practice. All drawings, illustrations, technical descriptions or photos serve for illustration purposes only and shall not be binding in detail with respect to the execution of the Services. Additionally, any data relating to measurements, weights and volumes shall be deemed to be approximate. The Company reserves the right to make changes at any time by notifying the Customer in relation to any information and documentation provided (such as design, form or colour) by the Company.
- In the event of subsequent changes or additional services or works are required to be performed other than the scope of the Services as agreed between the Parties, for such additional services or works, the Price shall be adjusted by written agreement between the Parties and the period stipulated for the completion of the Services shall be extended or postponed to a later date, as the case may be, by the period required for such change or additional services or works to be executed.
- Should any of the specified materials or equipment not be available at the time required for use in respect of the Services, the Company shall have the right to use other suitable materials or equipment of equivalent standard in replacement thereof, subject to the consent of the Customer (such consent not to be unreasonably withheld).
- All information and documents (including but not limited to technical drawings, plans, calculations, and evaluations) provided by the Company to the Customer and all technologies, techniques, skills and trade secrets used to perform the Services (the "Proprietary Technology") are and shall remain the proprietary property of the Company. The Proprietary Technology includes all information and documents in any media form that is not disclosed or is reasonably expected not to be disclosed to the public. The Proprietary Technology does not include information that is previously disclosed to the public through no fault of the Customer. The Company expressly reserves all rights to the Proprietary Technology, including but not limited to copyrights, patent rights and other intellectual property rights as applicable.
- Unless otherwise agreed in writing by the Company, any Proprietary Technology that is provided or used in the performance of the Services for the Customer shall not be used by the Customer or its agents and affiliates for any other purpose except in relation to the Services and the Customer shall be liable for any unauthorized reproduction or disclosure to third parties of such Proprietary Technology. The Customer shall promptly return all information and documents provided by the Company without delay upon request by the Company.
Customer Provided Information
- The Company shall be entitled to rely on any information as provided by the Customer without independently verifying its truth and accuracy and shall not in any way be responsible for the accuracy or completeness of such information. The Customer shall be responsible for the accuracy of and rights to any information that the Customer, its affiliates or and agents provides to the Company in the performance of the Services. The Customer shall indemnify and hold the Company harmless against any claims from third parties arising out of a violation of proprietary rights and intellectual property rights by utilizing information provided by the Customer. Additional expenses incurred due to errors in drawings and other documents and information provided by the Customer shall be borne by the Customer.
- The Company shall have the right of sub-contracting all or part of the performance of the Services to third-parties, provided always that the Company shall remain responsible for all of their sub-contractors’ actions and that the Company shall remain liable to the Customer for the due performance of its obligations in respect of the Services.
- All sub-contractors engaged in the performance of the Services shall not have any authority or power to make any representations or commitments that are binding on the Company except to the extent expressly authorized by the Company in writing.
Size, Weight and Nationality of Vessels
- Unless expressly agreed between the Parties, measurements provided in the "Register of Ships" maintained by the Lloyd's Register of Shipping or those measurements as stated in the International Tonnage Certificate (“Published Measurements”) shall apply in determining the cubic meter capacity of a ship or vessel.
- All Published Measurements are subject to regulatory changes and the Company assumes no liability in the event of such change. In the event of such changes, the Company, at the written request of the Customer, shall use its best endeavour (but shall not be obligated) to adjust the terms of the scope of Services through discussions with the Customer, provided always that the Price for Services be adjusted accordingly.
- The Customer shall inform the Company in writing no later than upon the arrival of the Company’s representatives, agents or sub-contractors at the ship, vessel or location for the performance of the Services as to which persons (other than the ship master) are authorized to be the Customer's representative (the “Customer’s Representative”). The Company, its representatives, agents or sub-contractors may at any time during the performance of the Services request (which shall not be unreasonably made) the Customer for a change of the Customer’s Representative.
- If the Customer fails to appoint the Customer’s Representative, the Company, its representatives, agents or sub-contractors shall be entitled to refrain from starting or stop all Services immediately. Any damages or losses suffered by the Company, its representatives, agents or sub-contractors arising from or in connection to any delays caused by the Customer under this Clause 10 shall be borne by the Customer.
- The supervision of the Services shall be carried out by the Customer’s Representative or such other person(s) as the Customer may from time to time appoint and notify to the Company in writing. The Customer shall have at least one Customer’s Representative present throughout the performance of the Services. The Customer’s Representative shall at all times provide reasonable assistance to facilitate timely and efficient completion of the Services.
- The Customer’s Representative shall be authorised to act on behalf of the Customer in respect of all matters relating to the Services, including but not limited to the approval of plans, drawings, calculations, and documents, and agreeing and signing agreements for variations of Services (if any) and invoices.
- Unless expressly agreed otherwise by the Company, all prices quoted in the Company’s quotation or offer for the provision of Services in Singapore (including but not limited to the performance of inspections, maintenance and repairs on equipment or parts and all related works thereto of ships and other water vessels) are [net prices in Singapore Dollars] excluding any Government Services Tax (GST) payable. All prices quoted in the Company’s quotation or offer for the supply of parts or equipment are [ex-works based on ex-works Singapore pricing] excluding any GST, and the Company is entitled to charge the costs of freight and an additional of 10% surcharge on such costs of freight payable if any parts or equipment is required to be imported into Singapore.
- In the event of any increase in costs of the Services, such as including but not limited to wages, energy, government taxes, cost of materials, insurance costs or other costs that occurs after the formation of the Contract but before the commencement of Services, the Company shall be entitled at its discretion to adjust the Price based on the increase in costs, provided that more than four (4) calendar months have lapsed between Contract formation and commencement of Services.
- All payments are due upon the Company’s issuance of its invoice to the Customer, and payments shall be made within 30 calendar days from the date of invoice.
- During the execution of the Services, the Company shall be entitled to issue an interim invoice to the Customer of up to 75% of the value of the Services performed up to the time of such interim invoice. The balance amount shall be payable upon the issuance of invoice after Completion.
- Without prejudice to the Company’s other rights and remedies, default in any payment shall entitle the Company to suspend execution of the Services, by notifying the Customer of such suspension, and to charge interest on moneys outstanding at a rate of LIBOR plus 5% per annum until payment is received in full (including accrued interest).
- Any delay in payment by the Customer shall be deemed as a breach of Contract entitling the Company to terminate the Contract and to take legal proceedings against the Customer in respect of any moneys outstanding (including accrued interest). The Customer shall be liable for all demurrage and any other costs arising from or in connection to any delays in payment by the Customer. The Company shall also have the right to recover from the Customer all direct and indirect costs arising from any suspension of Services caused by the Customer to the extent not otherwise contractually excluded.
- For the purposes of this Clause and notwithstanding any pre-arranged (or otherwise) modes of payment, no payment by the Customer shall be deemed to be duly made or effected until the full outstanding amount has been irrevocably and unconditionally credited into the Company’s bank account. All banking charges (including those of the Customer’s bank) incurred in the making of any payments under the Contract for Services shall be borne by the Customer.
Title, Risks and Lien
- Notwithstanding the Company having possession for the purposes of the Contract for Services, title to the ship or vessel or any part thereof shall remain at all times with the Customer, and all risks in respect of the ship or vessel or any part thereof shall be borne by the Customer unless the damage is caused by the Company. For the avoidance of doubt, the Company shall not be responsible for any loss of the ship or vessel or any part thereof at any time, even while in the Company’s possession or during Handover of the same, unless such loss is directly caused by the Company.
- For the purpose of this Clause, risks refer to all damage or loss and shall include but not limited to accidental loss and accidental deterioration of the ship, vessel or Items.
- The place of performance for the Services shall be the location in Singapore designated by the Company unless another place of performance has been agreed upon in writing between the Parties.
- Such Object of Performance shall, at the time of handing over to the Company and unless otherwise agreed, be safely cleared of any gases (including inerted), cargos, slops, sludge dirty ballast or other dangerous objects, supplies or materials thereby conforming to all relevant safety requirements and allowing the Company, its representatives, agents or sub-contractors to perform the required Services thereon safely. If the Customer fails to make such arrangements in accordance to this Clause 15.2, the Company shall be entitled to refuse taking into possession the Object of Performance and the Customer shall be liable to reimburse the Company for any related losses or expenses incurred, including but not limited to sums payable to sub-contractors.
- During the performance of the Services carried out by the Company, its representatives, agents or sub-contractors, no other persons or entities shall be allowed to perform the Services on the Object of Performance without prior written consent by the Company.
- In addition to Clause 26.2, for all other facilities and areas of the Object of Performance that are not worked on by the Company, its representatives, agents or sub-contractors in respect of the Services, they shall be managed and coordinated by the Customer in terms of deploying protective and safety measures, as well as compliance to safety regulations in respect of any work performed therein.
- Where Services are to be performed on holds, the hatch covers of such holds must be removed and stored safely by the Customer prior to the Company's commencement of Services.
- Unless stipulated as part of the Company’s contractual obligations, the Customer shall be obliged to dispose of all toxic substances and hazardous waste at the Customer's expense and without delay, which shall in any case be performed not more than [2 calendar days] from the time that such obligation to dispose arises.
- Unless otherwise agreed, all materials replaced in the course of the Services, including those in the event of Clause 19 and new surplus materials – with the exception of heavy machinery parts such as propellers and propeller shafts – shall become the property of the Company, free of charge.
- Old materials and equipment that have been replaced which remains as the property of the Customer shall be removed from the Company’s premises (if applicable) at the same time when the Object of Performance is handed over to the Customer. Such removal shall be made at the expense of the Customer and without delay, which shall in any case be within [30 calendar days] after the handing over of the Object of Performance, and upon the lapse of such period, the Customer shall be deemed to have renounced its rights to the old materials and equipment which shall become the property of the Company free of charge, unless otherwise agreed.
- The Company shall be entitled to, or shall upon request by the Customer, undertake such testing as necessary to determine whether the Services have been executed in accordance with the Contract. Such tests (if any) shall be performed prior to Handover.
- For the purposes of such testing, the Customer shall provide the ship or vessel free of charge with any consumables, materials and other supplies (including but not limited to fuel) required for the implementation of tests.
- The Company shall give the Customer reasonable notice of the nature and time of such testing, and if the Customer so request, the Customer shall be entitled to have its representatives or agents present when such testing is performed.
- The Company shall be entitled to undertake any such examinations, measurements or observations to the Object of Performance in due time before and after testing as the Company deems necessary for the satisfactory execution and control of the tests.
- When the defects referred to in Clause 17.6 have been rectified, the Customer is obliged to accept the Services and accept Handover of the Object of Performance upon the Company’s request. The Customer shall be deemed to have accepted the Services and Handover when the Customer resumes use of the Object of Performance. The Customer shall bear all costs in connection with the Handover (if any).
- If the Customer for any reason is unwilling or unable to accept Handover on the time and date of the Handover as agreed between the Parties, the Customer shall immediately notify the Company in writing thereof stating the reason and propose a date and time when Handover will be accepted (“Postponed Handover”). In such event, the Company shall if necessary arrange for storage of the Object of Performance at the Customer's risk and expense until this Postponed Handover.
- If the Customer does not accept the Services and/or accept Handover (or Postponed Handover, as the case may be), the Company shall be entitled to claim against the Customer for the Price or any outstanding amount due, including any loss sustained by the Company arising or in connection to the Customer’s default.
- Without prejudice to Clause 18 and subject to Clause 19.6, the Company shall guarantee the Services performed and Items supplied by the Company, its representatives, agents or sub-contractors (the “Guarantee”) (and as such the Company shall be responsible for rectifying defects in the Services performed in respect of materials and workmanship and Items supplied) provided always that notice of complaint in respect of such defects is in writing and received by the Company within 1 year from the date of Handover or sale and delivery of the parts or equipment (as the case may be).
- If the defect has led to damage to the ship or vessel or any part thereof, the rectification obligation of the Company shall extend to repairing or renewal of the ship’s, vessel’s or Item’s part(s) that have been damaged as a direct consequence of the defect.
- In cases where the Company is liable for defects as provided in this Clause 19, the Customer shall be entitled to have the rectification works carried out at any other contractor, yard or workshop mutually agreed by the Parties, other than to be performed by the Company at its proposed location if, in the reasonable opinion of the Customer, that such rectification works need to be effected promptly and it is not practicable or cost effective for the Customer to either deliver the ship or vessel to the Company’s proposed location or arrange for the Company to send its representatives, agents or sub-contractors to attend at the ship or vessel wherever located. The Company’s liability in such event of this Clause 19.3 shall solely be to pay to the other contractor directly or to reimburse the Customer the actual costs incurred for such rectification works, provided always that before committing the ship or vessel to any other contractor, yard or workshop the Customer shall:
- Notify the Company of their intention to do so and request such assistance as the Company may be able to offer in order to minimise cost;
- Use best endeavours to ensure that the cost does not exceed the cost of having the same rectification works as may be performed by the Company; and
- In any event, the ship or vessel shall be taken at the Customer’s cost and responsibility to the place elected, ready in all respects for the rectification works to be performed.
- Subject to Clause 19.3, the Customer shall give the Company the opportunity to rectify any defect within a reasonable time, in which case the Company may, at its discretion, choose either to deliver a substitute good or repair any defect in the ship, vessel or Item. The ship, vessel or Item must be made available and accessible to the Company for the purpose of rectifying any defects at the place of performance or, if the place of performance is unsuitable to the Company, at a harbour mutually agreed between the Parties.
- Notwithstanding Clauses 19.3 and 19.4, if the rectification works shall incur disproportionate costs and expenses on the part of the Company, the Company shall be entitled to refuse performance of the rectification and in such event the Customer shall be entitled to a reduction of the Price proportionate to the costs of such rectification but not exceeding [10% of the Price] and without prejudice to claims for other damages that the Customer may have. [KW Comment: As discussed, given the small sum of contract prices typically, you may want to reconsider this threshold.]
- The Company will not be held liable for any defects arising out of any illegal activity or out of any use of the ship, vessel or Items that is not in accordance with the conditions of operation or out of any other improper use. The Company will not be held liable for any defects arising from incorrect handling or the lack of or acts of incorrect maintenance, incorrect installation or faulty repair exercised by the Customer or its agents or caused by any alterations carried out without the Company's prior written consent. The Company will not be held liable for normal wear and tear or deterioration.
- Subject to Clause 26 the remedies for defects provided in this Clause 19 shall be the exclusive remedies available to the Customer.
- The Customer agrees to hold the Company harmless and to indemnity and keep indemnified the Company for (i) initial filling and refills of lubricating and hydraulic oils as well as other materials and consumables used in the performance of the Services, and (ii) expenses incurred for certificates attesting a gas-free condition, any degasifying of tanks, bilges or other containers carried out by the Company.
- In the event that performance of the Services by the Company becomes entirely or partially impossible for reasons beyond its control due to force majeure events, the Customer shall remunerate the Company for services and supplies provided up to the point of complete or partial impossibility of performance.
- Any occurrence of force majeure events or of other circumstances beyond the Company's control, regardless of whether they affect the Company its suppliers, agents or sub-contractors, shall release the Company from its obligation to perform services or to deliver supplies for the duration of such causes.
- Events of force majeure include but are not limited to:
- Acts of God;
- Any governmental any Government requisition, control, intervention, requirement or interference, including but not limited to embargoes or sanctions;
- any circumstances arising out of war, threatened act of war or warlike operations, acts of terrorists or the consequences thereof;
- riots, civil commotions, blockades or embargoes;
- earthquakes, landslides, floods or other extraordinary weather conditions;
- strikes, lockouts or other industrial action, but only if of a general nature and not limited to the Company’s and/or the Sub-contractors’; and
- fire, accident, explosion (whether in the Company’s premises or elsewhere) except where caused by the proven negligence of the Company and/or the Sub-contractors.
- Should any such events in this Clause 21 render the Company's supplies or services impossible, the Company shall be fully released from its obligations in the Contract with the Customer.
- Whenever an actual or potential event of force majeure as set out in this Clause 21 occurs, regardless of whether such event is delaying or impairing or threatening to delay or impair the performance of the Contract, the Customer shall immediately give written notice thereof, including all relevant information with respect thereto, to the Company.
Time Limits and Delays
- Time limits and dates shall be binding on the Company only upon its express written agreement. Where no time limits or dates have been agreed to in writing, the time limits and/or dates estimated by the Company shall apply. In all other circumstances, the time limits and/or dates applicable shall be proportionate in consideration of the nature and extent of performance, the difficulty, skills and know-how required for the Services.
- The Company’s timely delivery of performance of Services is subject to and dependant on the Customer’s cooperation and timely fulfilment of its corresponding responsibilities and obligations under the Contract such as, including but not limited to, the timely delivery of documents to be provided by the Customer, the timely delivery of the Object of Performance to the Company in a condition allowing the performance of Services and provision of prompt clarification of all commercial and technical questions (including price agreements).
- Notwithstanding any delay in payments due on the part of the Customer, the agreed time limits and dates (if any) shall be extended by the Parties in consultation with each other provided that the Company has not elected to exercise its right of lien under Clause 13.4 or terminate the Contract as a breach under Clause 12.4.
- Subject to Clause 22.2, if the Completion is delayed due to the fault of the Company, the Customer has the right to either (i) terminate the Contract, or (ii) if it chooses not to terminate the Contract and have proven of damages suffered, to claim compensation for such delay in the amount of [0.5% of the Price per full calendar week] of delay provided always that such amount shall not exceed the Liability Limit.
- The Company reserves title to any Items not paid in full (“Qualified Items”) delivered by it until full satisfaction of all claims to which the Company is entitled from the Customer under the Contract.
- Notwithstanding Clause 13.2, all risks in respect of the Qualified Items delivered to the Customer will be borne by the Customer from the time the Qualified Items cease to be in the actual possession of the Company, its representatives, agents or sub-contractors, unless otherwise specified by the Company.
- The Customer must notify the Company promptly in writing about any attachment or seizure of property or of any other disposal of the Customer’s property.
- In cases where the Customer combines or mixes Qualified Items with other goods that are not property of the Company, the Company shall accordingly acquire a property interest in the new product in proportion to the total value of this new product to the invoiced value of the Qualified Item(s). The new products resulting from such processing also shall be deemed to be Qualified Items.
- The Customer shall assign to the Company in advance and as security all claims and accessory rights it has in connection with the resale of Qualified Items as well as any claims it may have against its insurers (“Claims”). The Company hereby accepts any such assignments.
- If the Qualified Items are sold by the Customer together with other goods not the property of the Company (regardless of whether with or without or after processing), the aforementioned Claims shall be deemed to have been assigned to the Company in an amount equal to the outstanding invoice value of the Qualified Items. The Company’s right to claim for payment against the Customer shall not be extinguished, effected, deferred or absolved by reason of such assignment.
- The Customer shall retain its right to collect on the Claims assigned to the Company despite such assignment. To the same extent, the Company’s authority to collect such Claims by itself is hereby also not precluded. The Company will, however, not collect on such Claims as long as the Customer is not in default of any payment, no petition has been filed for opening insolvency or bankruptcy proceedings on the Customer's assets or where such proceedings have not been rejected due to insufficiency of assets, or no suspension of payments has occurred. If any of these events has occurred, the Customer shall promptly notify the Company in writing about the Claims assigned and the names of debtors in respect of such Claims. The Customer also shall provide the Company with the necessary information and documents to be able to collect on such Claims and the Customer shall inform the various debtors in writing of the assignment of such Claims to the Company.
- The Customer shall maintain Qualified Items in proper condition and shall, to the extent that the Qualified Items are not installed, store them separately and mark same as goods owned by the Company.
Assignment, Set-off and Right of Retention
- The Customer shall not assign any claims or rights it may be entitled to under the Contract to third parties without the Company's prior written consent.
- The Customer shall not set off any sum owing or allegedly owing by the Company to the Customer against any sum owing by the Customer to the Company.
Warranties and Representations
- These Terms together with the Company’s quotation and offer sets forth the entire agreement and understanding between the parties in connection with the performance of Services described herein. Each party acknowledges and agrees that in entering into the contract, it does not rely on, and shall have no remedies in respect of, any representations, warranties and undertakings (however made) that is not set out in these Terms together with the Company’s quotation and offer.
- EXCEPT AS EXPRESSLY AGREED OTHERWISE BY THE COMPANY, ALL PRODUCTS, PARTS AND SERVICES PROVIDED BY THE COMPANY ARE SOLD ON AN "AS IS" BASIS AND THE COMPANY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY SHALL NOT BE LIABLE FOR AND DOES NOT WARRANT FOR ANY PRODUCT MODIFICATIONS, ALTERATIONS, INNOVATIONS OR CHANGES, WHETHER MADE BY THE CUSTOMER OR BY ANY OTHER PERSON NOT UNDER THE EMPLOY OF THE COMPANY. ANY WARRANTIES GIVEN BY FASSMER ARE FOR THE CUSTOMER'S BENEFIT ONLY AND ARE NOT TRANSFERABLE.
- The Customer agrees to indemnify and hold the Company, its representatives, agents and sub-contractors harmless from any liability whatsoever arising in connection with the performance of Services for the Customer.
- The Customer shall be responsible for the safety, security and surveillance of its ships, vessels, cargo and all of the Customer's supplies, in particular for watch guards and for the observation and adherence to relevant laws and statutory rules and regulations (i.e. regulations for the prevention of accidents). The Customer shall be responsible for any statutory agents employed by it in the course of performance of its duties and obligations as well as for its vicarious agents. All other measures required for the prevention of damages and accidents and mooring fall are the Customer's responsibility. When hazardous work is performed on board of a ship or vessel, the Customer through its own surveillance measures must ensure that all legal and industrial requirements of due care are adhered to. The Customer must notify the Company in writing about any imminent dangers.
Liability for loss or damage
- The Company shall only be liable to the Customer under the Contract when proven loss or damage has been caused by the negligence, gross negligence or wilful default of the Company, its representatives, agents or sub-contractors.
- Except in the event of prior cancellation or termination of the Contract with the Company, the Company’s liabilities arising out of or in connection with the Contract of whatsoever nature and howsoever arising shall cease upon Handover except as provided in Clause 19.
- Any tests, trials or movements of the ship or vessel shall be at the Customer’s sole risk and responsibility, and the Company shall not be under any liability whatsoever to the Customer for any loss, damage or expense resulting from such tests, trials or movements, unless caused by the intervention, act or omission of the Company.
Liability for death or personal injury
- Each Party accepts responsibility and liability for the death or personal injury of its own personnel, and the personnel of those entities for whom they are responsible under the Contract, irrespective of the cause of death or personal injury, and whether or not caused by the negligence or gross negligence of the other Party, or those entities for whom the other Party are responsible under the Contract.
- Each Party further agrees to indemnify and hold harmless the other Party, as regards both liability and legal costs, in the event that the aforesaid personnel or their dependants pursue claims for death or personal injury against the Party who is not responsible for them under the Contract.
- The indemnifying Party shall bear the expense of investigations and defences of all claims against which the other Party is indemnified under clause 26.8 above and all lawsuits arising therefrom including the legal costs of the indemnified Party.
- Save in the event of death or personal injury arising out of the negligence, gross negligence or wilful default of the Company or that of those for whom they are responsible, the Company’s liability for any claims, damages, losses whatsoever arising out of or in connection with the Contract shall be limited to [10%] of the Price (“Liability Limit”).
Employees, representatives, agents and sub-contractors
- The limitations on each Party’s liability in this Clause 26 shall also apply to the liability of those for whom that Party is responsible under the Contract. Each Party further agrees that it will not, and will ensure that those for whom it is responsible do not, circumvent the aforesaid limitations and allocation of responsibility by taking legal proceedings against the employees, representatives, agents or sub-contractors of the other Party, and to this extent each Party shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons.
- Nothing herein contained shall affect any right that the Parties may have to limit their liability under any statutory enactment for the time being in force.
- If by reason of any enactment or judgment any provision of the Contract and/or these Terms shall be deemed or held to be illegal, void or unenforceable in whole or in part, all other provisions of the Contract and/or these Terms shall be unaffected thereby and shall remain in full force and effect.
Governing Law and Jurisdiction
- The Contract and/or these Terms will be governed by and construed in accordance with the laws of Singapore.
- Any dispute, controversy or claim, whether contractual or not, arising out of or in connection with the Contract and/or these Terms (including any question regarding its existence, validity or termination) shall be referred to and finally resolved by arbitration in Singapore, conducted in the manner set out below, in accordance with the rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force.
- The arbitration tribunal shall consist of one (1) arbitrator, to be appointed by the Parties, or failing agreement within fourteen (14) days after either Party has given to the other Party a written request to concur in the appointment of the arbitrator, to be appointed on the request of either Party by the Chairman for the time being of the SIAC. The language of the arbitration shall be English and each Party shall have the right to have its legal advisers present throughout the arbitration.
- Any judgment, decision, or award of the arbitration tribunal (the “Award”) shall be set forth in a reasoned award stating the basis for the Award. The Award will be enforceable through a court of competent jurisdiction. The Parties agree that the Award shall be final, binding and conclusive upon each of them without appeal. Any costs, fees or taxes incident to enforcement of the Award shall, to the extent permitted by law, be charged against the Party resisting enforcement. In addition, a damage Award shall include interest, as determined by the arbitration tribunal, from the date of injury, up to and including the date of payment of the Award.