ARGO NAVIS GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (hereinafter “these Conditions”) for the provision of services apply to every work/project carried out by “Argo Navis Marine Consulting & Engineering Ltd.” (in Greek “ΑΡΓΚΟ ΝΑΒΙΣ ΣΥΜΒΟΥΛΟΙ ΜΗΧΑΝΙΚΟΙ ΕΠΕ” and hereinafter “ARGO NAVIS”) and override, to the exclusion of, any other terms and/or conditions presented or invoked by any other party whatsoever, including the Customer (as hereinafter defined). However, in any case of conflict between these Conditions and an Offer (as hereinafter defined), the terms of the Offer shall prevail.
For the purposes of these Conditions:
- “Customer” means, jointly and severally, in any event the owner of the Vessel and (as the case may be) the manager of the Vessel, her demise charterer and any other party which has contracted with ARGO NAVIS for the particular services and is stated as a customer in ARGO NAVIS’ Offer and/or invoice. The manager and/or operator of a Vessel shall, unless otherwise advised to ARGO NAVIS in writing before the latter dispatches its respective Offer, be deemed as acting for the owner of the Vessel.
- “Vessel” shall include any vessel, ship, craft or object of whatsoever nature (whether or not coming within the usual meaning of the word “vessel”) to which ARGO NAVIS agrees to, at the request, express or implied, of the Customer, to render any service of whatsoever nature.
- “Services” means the services which may be agreed in writing between ARGO NAVIS and the Customer, on the basis of ARGO NAVIS’ Offer.
- “Fees” means the fees charged by ARGO NAVIS to the Customer and include any value added tax or equivalent, where applicable.
- “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, to be incurred by ARGO NAVIS during the provision of the Services, include travel and hotel accommodation where an overnight stay is necessary, local Agents fees, entrance permits and visa fees and other similar expenses.
- “Offer” means the documents dispatched by ARGO NAVIS to the Customer in which are stated all the particular terms and conditions agreed in respect of any specific Services.
- Owner’s representation by the Customer
If at the time of making an agreement in respect of performing the Services or of rendering any other service to the Customer, the Customer is not the owner of the Vessel, the Customer hereby expressly represents that it is authorized to make and does make such agreement for and on behalf of the owner of the Vessel subject to each and all of these Conditions and agrees that both the Customer and the owner of the Vessel are bound jointly and severally by these Conditions as per the relevant Offer.
- ARGO NAVIS’ written Offer dispatched prior to provision of the Services and which has not been contested in writing by the Customer before the rendering of the Services, shall be conclusive evidence of the order for the Services by the Customer, the identity of the latter and the price and other details of the provision thereof.
- The party(ies) stated in the relevant Offer of ARGO NAVIS as customer(s) / contracting party(ies) shall be deemed to be the party which has ordered the Services and which is obliged to pay for them on a joint and several basis, always together with the owner of the Vessel.
Once ARGO NAVIS and the Customer have agreed what services are to be performed, any subsequent variations must be promptly agreed in writing between the parties, by specifying technical and commercial details, any variation of the delivery date and/or the deliverables as well as any additional costs involved. In the event of any delay by the Customer to agree in writing the terms for the relevant variation, ARGO NAVIS shall be entitled to stop the provision of the Services until the contract variation has been agreed in writing by the Customer.
- The Customer shall pay for the Services to be rendered by ARGO NAVIS under, or in connection with, its Offer and in accordance with the Fees and Disbursements stated therein.
- Any discounts shall be explicitly agreed beforehand in writing, otherwise they are invalid. Such discounts and generally and special financial arrangements to be made between ARGO NAVIS and the Customer (inclusive of all amounts payable by the Customer to ARGO NAVIS), shall be confidential and not be disclosed by the Customer to any third party without the prior explicit written consent of ARGO NAVIS.
- Terms of Payment
- Payment of all sums due by the Customer shall be made by way of a bank remittance within thirty (30) calendar days from the date of the issuance and presentation to it or its agent (local or otherwise) for payment of the relevant invoice or debit note.
- If at any time before the provision of the Services the financial standing of the Customer appears to ARGO NAVIS (in its absolute discretion) to have become impaired or unsatisfactory, ARGO NAVIS may require cash payment or security to be provided by the Customer prior to the provision of services, failing which ARGO NAVIS may cancel the contract without any liability on the part of the latter.
- If at any time after provision of the Services but before the due date for the payment of the invoice or debit note the financial standing of the Customer appears to ARGO NAVIS (in its absolute discretion) to have become impaired or unsatisfactory, ARGO NAVIS may require from the Customer immediate full payment of all invoices due and/or not yet due or such security as it shall deem to be satisfactory.
- If any part of ARGO NAVIS’ invoice or debit note is genuinely in dispute, the Customer shall notify ARGO NAVIS immediately upon receipt of the invoice or the debit note which is in dispute, providing proper explanations in writing as to why a portion of the invoice or the debit note is disputed and also timely pay the undisputed part. The parties shall endeavour to resolve the disputed portion without delay.
- Overdue Accounts
- All invoices or debit Notes issued pursuant to and in accordance with the terms of this agreement, which remain outstanding after a period of thirty (30) consecutive calendar days from the date of their issuance and presentation to the Customer or its agent shall be subject to a charge of default interest to incur at the rate of 2% per month.
- Non-payment of invoice/s or debit note/s exceeding a period of sixty (60) consecutive calendar days from the date of their respective issuance and presentation to the Customer or its agent shall automatically cause the cancellation of any agreed discount or rebate.
- In the event that the Customer shall default in making any payment due, ARGO NAVIS may suspend its Services until such payment has been made, or ARGO NAVIS may, in its discretion, elect to treat such default as a serious breach of the contract and thereupon terminate the contract in whole or in part without prejudice to any claim it may have against the Customer for damages. Such suspension or termination shall not relieve the Cusomer of any obligation undertaken by virtue of a contract so terminated.
- Where ARGO NAVIS has extended any kind of credit to a group of companies, default by any one relevant Customer in respect to any one invoice/debit note of ARGO NAVIS shall give the right to ARGO NAVIS to cancel all credit arrangements of the entire group, whereupon sub-clauses 7.5 and 7.6 shall apply mutatis-mutandis.
- Where the Customer fails to pay timely, ARGO NAVIS has the right to (without prejudice to its right to receive default interest) take all appropriate steps to secure and enforce its claim; ARGO NAVIS may also unilaterally cancel any credit arrangements agreed with/extended to the Customer.
- All judicial and extrajudicial costs and expenses, including (but without limitation) all the costs, expenses and disbursements of ARGO NAVIS’ lawyers, incurred in connection with the non payment or delayed payment or by any other breach by the Customer of these Conditions shall be for the Customer’s account, immediately payable by the latter to ARGO NAVIS. In case of litigation, the Customer shall also pay all the relevant expenses of ARGO NAVIS, including but without limitation all its legal/lawyers’ costs.
- The acceptance by ARGO NAVIS of any late payments from the Customer shall not be deemed as a waiver of ARGO NAVIS’ respective rights against the Customer under this clause and generally under these Conditions.
- Maritime Lien
The provision of the Services to the Customer and/or their acceptance by the Vessel affords to ARGO NAVIS a maritime lien on the Vessel. In any event the law governing these provisions and/or any other applicable law shall not prejudice the right of the maritime lien of ARGO NAVIS afforded either hereunder or by any other applicable law, be it of the place of performance of the Services, of the flag of the Vessel, of the place of jurisdiction, and/or of an arrest of the Vessel, or otherwise howsoever.
- ARGO NAVIS may without prejudice to any other rights it may have hereunder terminate this Agreement forthwith by giving notice in writing to the other party if the Customer shall commit any material breach of the terms of this Agreement on its part to be observed or performed.
- In the event that the Customer shall be in breach of its obligations under this Agreement, ARGO NAVIS shall have the following options: (a) without prejudice to its entitlement to claim compensation for all work done (including provision of Services in progress) for all costs irrevocably incurred and for loss of profits, to terminate this Agreement by giving 14 days notice in writing to the Customer of its intention so to do or (b) to claim compensation from the Customer in respect of the breach and in respect of any additional costs incurred as a result thereof and an extension of time to complete the Services where appropriate or (c) to renegotiate this Agreement.
- In the event of a suspension of this Agreement for reasons of breach by the Customer, force majeure or for the convenience of the Customer, ARGO NAVIS shall be entitled to payment by the Customer of the following costs: (a) the full costs of laying off (and re-hiring if necessary) any employees and consultants employed or hired specifically for the purposes of this Agreement such full costs to include any costs which ARGO NAVIS has necessarily paid to an employment agent; (b) the costs irrevocably committed relating to the period of suspension by subcontractors, under a subcontract which relates to this Agreement; (c) any other costs which ARGO NAVIS or its employees or agents have irrevocably committed in respect of the period of the suspension; (d) loss of the Company’s anticipated profit under this Agreement for the period of the suspension.
- Without prejudice to its rights hereunder ARGO NAVIS shall be entitled, at its option but shall not be obliged, to give notice of termination of this Agreement if any period of suspension continues for a period of more than 30 days.
In the event of termination of this Agreement for any reason whatsoever, ARGO NAVIS shall be entitled to receive payment by the Customer for all irrevocably committed costs associated with the Services. Unless otherwise specified and agreed in writing, the term “irrevocably committed costs” shall include but not be limited to the following items: (a) the cost incurred to the end of period of notice in developing any Services; (b) the full cost, including overhead, of employing and/or hiring any employees/contract staff specifically for the purposes of and for the period of the said Agreement; (c) the full costs of terminating the employment of or laying off of any such employees; (d) the costs of buying and/or hiring any materials, goods, plant, machinery or equipment specifically for the purposes of this Agreement; (d) the costs irrevocably committed by subcontractors specifically for the purposes of this Agreement, even if this commitment extends beyond the expiry of the period of notice; (e) recovery of the costs of all Services properly completed and delivered to the Customer, (f) recovery of the costs of Services completed but not yet delivered and work in progress; (g) recovery of any costs irrevocably committed by ARGO NAVIS even if this commitment extends beyond the expiry of the period of notice; (h) recovery of any monies due to the Company and (i) any removal costs or setting up costs
- Obligations and Responsibilities
- The Customer undertakes to (a) ensure that full information and instructions are given to ARGO NAVIS and in sufficient time and form to enable the Services to be performed effectively and efficiently; (b) procure all necessary access for ARGO NAVIS’ staff to goods, premises, the Vessel, installations and transportation and (c) ensure that all appropriate safety measures are tken to provide safe and secure working conditions.
- If the Customer becomes aware of any claim or circumstances which might involve litigation or arbitration concerning or connected with the subject matter of this Agreement, the Customer shall inform ARGO NAVIS accordingly.
- ARGO NAVIS shall procure (a) to undertake the provisions of its Services with due care, professional skill and to the best of its ability, and in doing so will strive to achieve the best results possible; (b) that its staff shall use reasonable care and skill in the performance of the Services in accordance with good marine surveying/consulting practice and (c) that it will report to the Customer during and following the completion of the Services on the progress and outcome of the provision of the Services, unless otherwise instructed by the Customer not to do so.
- Both parties undertake not to disclose to any third party any information provided in confidence by the other party and the receiving party of such information shall not permit access to it by any third party unless the disclosing party expressly grants permission or where the receiving party is ordered to do so by an order of a Court or a governmental authority.
- Ownership rights to intellectual property resulting from the performance of the work created by ARGO NAVIS shall vest in and remain the property of ARGO NAVIS and the Customer may not make use of and publicize the reports, drawings, models and plans of ARGO NAVIS without its express written consent.
- The Customer will indemnify ARGO NAVIS, as well as those who ARGO NAVIS engages during the provision of the Services, against all claims of third parties relating to the use or the application of results, data, knowledge, information, designs, software or delivered items originated from ARGO NAVIS.
- ARGO NAVIS’ Liability
- In any event, and notwithstanding anything contained in this Agreement, under no circumstances shall ARGO NAVIS be liable for (a) any damages which occurred following the review and approval of ARGO NAVIS’ provision of Services by the Vessel’s classification society or, in case ARGO NAVIS’ provision of Services are not subject to the review and approval by the Vessel’s classification society, by the acceptance of the provision of the Services by the Customer; (b) any damages which occurred due to defects of any machinery, equipment or other items ordered by the Customer and/or supplied by the Customer to ARGO NAVIS; (c) any loss of profit, business, contracts, goodwill, revenues, or anticipated savings of the Customer; (d) any special indirect or consequential damage of any nature due to exceeding of the agreed deadlines or any other cause related with the provisions of Services whatsoever.
- ARGO NAVIS will not in any event be responsible or liable for the consequences of war, riots, civil commotions, acts of terrorism or sabotage, strikes, lockouts, disputes, stoppages, fires, floods, acts of God, perils of the sea, accidents of navigation, any regulation or other government restriction or by compliance, any order or request of any government or other competent authority or party acting for such authority, any disorders, labour disturbances (whether he be a party thereto or not) or anything done in contemplation or furtherance thereof or delays of any description howsoever caused or arising, including by the negligence of ARGO NAVIS or his servants or agents.
- If, despite the foregoing, and in the event of shortcomings being ascertained in the results of Services that are due to errors and, incompleteness or lack of due care that can be attributed only to ARGO NAVIS and which are reparable according to reasonable standards, provided that Customer shall immediately take appropriate steps to prevent any defect from becoming more serious, then ARGO NAVIS will:
- Take action as ARGO NAVIS consider necessary to remedy any errors or omissions in the conduct of the work, or
- Refund all or any appropriate part of the fees charged for the work, or
- Rectify or correct these shortcomings with due care and to the best of its ability up to an amicably agreed by the parties maximum sum, or
- Should, despite the foregoing, ARGO NAVIS be liable to compensate the Customer, ARGO NAVIS’ maximum liability for professional negligence shall be the amount of EUR 100 000 (inclusive interest and costs) for all claims arising under the same contract with the Customer.
- Customer’s liability
In addition to Customer’s obligation to pay for Services, and without prejudice to any other provisions in these Conditions, the Customer shall be liable towards ARGO NAVIS and shall keep it fully indemnified in respect of all damages and/or losses and/or expenses incurred by ARGO NAVIS as a result of any breach of contract, fault of the Customer or its employees, officers, servants and/or agents and/or the Vessel’s crew and master; such liability/indemnity shall include –but without limitation– any claims by third parties which may be brought against ARGO NAVIS or and/or or its employees, officers, servants and/or agents and/or the Vessel’s crew and master in respect thereof.
ARGO NAVIS shall effect and maintain, at no cost to the Customer, Professional Liability Insurance any loss and damage for which ARGO NAVIS may be held liable to the Customer under these Conditions.
- Right to Sub-contract and Assignment
ARGO NAVIS shall have the right to sub-contract any of the Services. In the event of such sub-contract ARGO NAVIS shall remain fully liable for the due performance of its obligations under the contract with the Customer. This Agreement may not be assigned in whole or in part by the Customer without the specific written approval of ARGO NAVIS which will not be unreasonably withheld.
- Document retention
ARGO NAVIS shall retain all data, correspondence, documents and records that have a bearing on the Services provided to the Customer for a period of 10 years after completion of the Services. The Customer will be given the right to have their own disclosed documentation returned by ARGO NAVIS at the Customer’s cost or destroyed upon completion of the Service.
- Privity of Contract
This Agreement is intended to be a private contract between the parties hereto and it is not intended to confer any rights of enforcement on any third party (other than on a permitted assignee to whom it is actually assigned) even if any of the contract terms purport to confer a benefit on such a third party.
Any alteration to these Conditions shall not be effective unless agreed in writing by both parties.
If any part of these Conditions is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, then that provision shall, to the extent required, be severed and shall be ineffective, but shall not affect any other provision of these Conditions which shall remain in full force and effect.
- Time Bar
All claims against ARGO NAVIS shall be deemed to be waived and time barred upon the expiry of one year following the completion of ARGO NAVIS’ Services and the delivery of the relevant work/project carried out thereunder.
- Jurisdiction and Law
The contract between ARGO NAVIS and the Customer shall be governed by and construed in accordance with the laws of England and Wales and any dispute thereunder (inclusive of any claim thereunder on the basis of tort) shall be subject to the exclusive jurisdiction of the Piraeus Courts (maritime division).