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1. Application

1.1    These Terms and Conditions shall apply to the provision of the Consultancy Services by the relevantEllanian Shipping Services SRL entity as stipulated in the Client Communication which is providing the Consultancy Services (“P&P”) to the Client and, unlessEllanian Shipping Services SRL has agreed otherwise in writing, they shall also apply to any other services of whatever nature which may be provided byEllanian Shipping Services SRL to the Client in the future.

1.2    In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed byEllanian Shipping Services SRL in writing.

2. Definitions

2.1    In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Agreement” means the Client Communication in conjunction with these Terms and Conditions;

“Surveyor”/”Consultant” is the Surveyor/Consultant trading under these conditions.

“Client” is the party at whose request or on whose behalf the Surveyor/Consultant undertakes surveying services.

“Consultancy Services” means the consultancy services to be provided byEllanian Shipping Services SRL to the Client as set out in the Client Communication;

“Report” means any report or statement supplied by the Surveyor/Consultant in connection with instructions received from the Client.

“Disbursements” means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable and appropriate expenses including travel, subsistence and hotel accommodation where an overnight stay is necessary.

“Fees” means the fees charged by the Surveyor/Consultant to the Client and including any value added tax where applicable and any Disbursements.

“Day” means a calendar day unless expressly stated to the contrary.

2.1    The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.

3. Scope

The Surveyor/Consultant shall provide its services solely in accordance with these terms and conditions.

4. Work

The Client will set out in writing the services which it requires the Surveyor/Consultant to provide. The Surveyor/Consultant will confirm in writing that it accepts those instructions or alternatively what services it will perform in connection with the Client’s instructions. Once the Surveyor/Consultant and the Client have agreed what services are to be performed (the Services) any subsequent changes or additions must be agreed by both parties in writing.

5. Payment

5.1   Ellanian Shipping Services SRL shall invoice the Client on a monthly basis and each such invoice will set out the charges accrued and payable by the Client for the actual number of hours performed byEllanian Shipping Services SRL personnel during the applicable month at the mutually agreed rates.

5.2    All payments required to be made pursuant to this Agreement by the Client shall be made within 30 (Thirty) days of the date of the relevant invoice in the currency stated in the invoice in cleared funds toEllanian Shipping Services SRLs nominated bank as set out in the invoice, without any set-off, withholding or deduction except such amount (if any) of tax as the Client is required to deduct or withhold by law

5.3    Promptness of payment shall be of the essence under this Agreement. If the Client fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions thenEllanian Shipping Services SRL shall, without prejudice to any right whichEllanian Shipping Services SRL may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the base rate of The Bank of England plus three percent (8%) from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.

6. Obligations and Responsibilities

6.1 Client: The Client undertakes to ensure that full instructions are given to the Surveyor/Consultant and are provided in sufficient time to enable the required Services to be performed effectively and efficiently and to procure all necessary access for the Surveyor/Consultant to goods, premises, vessels, installations and transport and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions. The Surveyor/Consultant shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions.

6.2 Surveyor: The Surveyor/Consultant shall use reasonable care and skill in the performance of the services in accordance with sound marine surveying/consulting practice.

6.3 Reporting: The Surveyor/Consultant shall submit a final written Report to the Client following completion of the agreed Services describing the Surveyor’s/Consultant’s findings and the condition and/or quality of the object and/or purpose of the assignment, unless otherwise expressly instructed by the Client not to do so.

6.4 Confidentiality: The Surveyor/Consultant undertakes not to disclose any information provided in confidence by the Client to any third party and will not permit access to such information by any third party unless the Client expressly grants permission save where required to do so by an order of a competent court of law.

6.5 Property: The right of ownership in respect of all original work created by the Surveyor/Consultant remains the property of the Surveyor/Consultant.

6.6 Conflict of Interest/Qualification: The Surveyor/Consultant shall promptly notify the Client of any matter including conflict of interest or lack of suitable qualifications and experience, which would render it undesirable for the Surveyor/Consultant to continue its involvement with the appointment. The Client shall be responsible for payment of the Surveyor/Consultant’s Fees up to the date of notification.

7. Variation and Amendments

7.1    If the Client wishes any variations to be made to the Consultancy Services it must notifyEllanian Shipping Services SRL in writing as soon as possible.Ellanian Shipping Services SRL shall endeavour to make any required changes and any additional costs thereby incurred shall be due to and invoiced to the Client.

7.2    If, due to circumstances beyondEllanian Shipping Services SRL’s control, it has to make any change in the arrangements relating to the provision of the Consultancy Services it shall notify the Client forthwith.Ellanian Shipping Services SRL shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.

8. Limitations on Liability

8.1   Ellanian Shipping Services SRL’s maximum liability under the provisions of this Agreement shall be limited to the fees paid in consideration of the Consultancy Services.

8.2   Ellanian Shipping Services SRL shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement.

8.3   Ellanian Shipping Services SRL shall not be liable to the Client or be deemed to be in breach of these terms and conditions by reason of (i) any delay in performing, or any failure to perform, any ofEllanian Shipping Services SRL’s obligations if the delay or failure was due to any cause beyondEllanian Shipping Services SRL’s reasonable control, or (ii) inaccurate, incomplete or missing information or data which is provided or should reasonably have been provided by the Client toEllanian Shipping Services SRL in connection withEllanian Shipping Services SRL’s provision of the Consultancy Services hereunder.

11.4    In the event that the Consultancy Services involves the survey of a vessel or any work or services to or containing a product or article any of which contain latent defects which were not apparent at the time that the vessel was surveyed and could not reasonably have been expected to have been discovered by such survey (either by reason of lack of access to a vessel part, limited availability of time or otherwise) thenEllanian Shipping Services SRL shall have no liability therefor.

11.5   Ellanian Shipping Services SRL shall only be liable to the Client to the extent thatEllanian Shipping Services SRL is unable to rectify any matter for which it would otherwise be liable to the Client within a period of 45 days of becoming aware of the said matter.

11.6    The Client’s relationship is solely withEllanian Shipping Services SRL. No Representative ofEllanian Shipping Services SRL has any personal legal liability to the Client whether in contract, tort (including negligence) or otherwise. The fact that any Representative signs in his or her name any document or email in the course of carrying out the Consultancy Services does not give rise to any personal legal liability separate to that ofEllanian Shipping Services SRL.

11.6.1   The Client agrees that other than in the event of fraud, any claim which the Client brings in respect of a matter on which the Client has instructedEllanian Shipping Services SRL shall be made againstEllanian Shipping Services SRL and not against any of the following:

11.6.2   any Representative ofEllanian Shipping Services SRL; or

11.6.3   anyEllanian Shipping Services SRL Group Company ofEllanian Shipping Services SRL or any officer, employee, agent, consultant or subcontractor of any suchEllanian Shipping Services SRL Group Company; and

11.6.4   any successor of any of the persons listed in the preceding sub paragraphs.

11.7    WhereEllanian Shipping Services SRL is liable to the Client and a third party is also liable to the Client in connection with the same matter,Ellanian Shipping Services SRL shall only be responsible for a fair share of the Client’s loss. In particular, if the Client agreed to limit the liability of such other third party or if the Client is unable to recover from that other third party,Ellanian Shipping Services SRL’s share shall not be increased because of the limitation of liability the Client has agreed with the other third party or the Client’s inability to recover from him/it.

11.8    Any Representative ofEllanian Shipping Services SRL or Group Company may enforce his, her or its rights against the Client under the Contracts (Rights of Third Parties) Act 1999.

11.10    Nothing in this Agreement limits or excludes the liability ofEllanian Shipping Services SRL for death or personal injury resulting from negligence; or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by theEllanian Shipping Services SRL or any of its Representatives.

9. Indemnity

Except to the extent and solely for the amount therein set out that the Surveyor/Consultant would be liable under Clause 8, the Client hereby undertakes to keep the Surveyor/Consultant and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them, and against and in respect of all costs, loss, damages and expenses (including, but not limited to, legal costs and expenses on a full indemnity basis) which the Surveyor/Consultant may suffer or incur (either directly or indirectly) in the course of the Services under these Conditions.

10. Termination

10.1    All or any part of the Consultancy Services may be terminated at such time or times asEllanian Shipping Services SRL and the Client may mutually agree.

10.2   Ellanian Shipping Services SRL may terminate this Agreement forthwith if:

10.2.1   the Client is in breach of any of its obligations hereunder; or

10.2.2   the Client 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

10.2.3   the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts; or

10.2.4   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 the Client; or

10.2.5   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 Client; or

10.2.6   a floating charge holder of the assets of the Client has become entitled to appoint or has appointed an administrative receiver; or

10.2.7   a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client; or

10.2.8   any event occurs or proceeding is taken with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 10.2.2 to 10.2.7 (inclusive); or

10.2.9   any circumstances whatsoever beyond the reasonable control ofEllanian Shipping Services SRL that necessitate the termination for whatever reason of the provision of Consultancy Services.

10.3    In the event of terminationEllanian Shipping Services SRL shall retain any sums already paid to it by the Client without prejudice to any other rights either party may have whether at law or otherwise.

11. Force Majeure

The Surveyor/Consultant and/or the Client shall not, except as otherwise provided in these Conditions, be responsible or have any liability for any loss, damage, delay or failure in performance hereunder arising or resulting from act of God (including, but not limited to earthquake, flood, tsunami, volcano, hurricane, tropical storm, cyclone, blizzard or other similar event), act of war, terrorist attack, nuclear contamination, seizure under legal process, epidemic quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people. Following a force majeure event either party may serve notice on the other to terminate the agreement. 

12. Insurance

The Surveyor/Consultant shall effect and maintain, at no cost to the Client, Professional Liability Insurance for such loss and damage for which the Surveyor/Consultant may be held liable to the Client under these terms and conditions.

13. Surveyor’s/ Consultant’s Right to Sub-contract

The Surveyor/Consultant shall have the right to sub-contract any of the services provided under the Conditions, subject to the Client’s right to object on reasonable grounds. In the event of such a sub-contract the Surveyor/Consultant shall remain fully liable for the due performance of its obligations under these Conditions.

14. Time Bar

Any claims against the Surveyor/Consultant by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the submission date of the Report to the Client.

15. Copyright

P&P reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Consultancy Services or facilities.Ellanian Shipping Services SRL reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright.

16. Confidentiality

BothEllanian Shipping Services SRL and the Client undertake not to disclose any information provided in confidence by the other party to any third party and the receiving party shall not permit access to such information by any third party unless the disclosing party expressly grants permission save where required to do so by an order of a competent court of law.

17. Anti Bribery

17.1    BothEllanian Shipping Services SRL and the Client shall:

17.1.1   comply with all applicable laws, regulations and sanctions relating to anti-competitive behaviour, anti-bribery and anti-corruption

17.1.2   not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 or any other of the Relevant Requirements;

17.1.3   comply with their respective codes of conduct covering anti-bribery and anti-corruption policies and procedures (“Code of Conduct”);

17.1.4   have and shall maintain in place throughout the term of this Agreement policies and procedures, including but not limited to “adequate procedures”, to ensure compliance with the Relevant Requirements and their respective Code of Conduct and will enforce them where appropriate; and

17.1.5   ensure that all directors and employees and other persons associated with the relevant party comply with this paragraph 17.1.

Breach of paragraph 17.1 shall be deemed to be a material breach of this Agreement. For the purpose of paragraph 17.1.4, the meaning of “adequate procedures” shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.

18. Waiver

18.1    No waiver byEllanian Shipping Services SRL of any breach of this Agreement by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given.

18.2    No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.

19. Assignment

This Agreement may not be assigned in whole or in part by the Client without the specific written approval ofEllanian Shipping Services SRL.

20. Jurisdiction and Law

These Conditions shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.