“EVANS MARINE SERVICES LIMITED” (t/a SEASECRETARY ) –
TERMS AND CONDITIONS OF BUSINESS
DATE: 5 April 2015
1 Definitions
1.1 “Company” means EVANS MARINE SERVICES LTD (t/a Sea secretary) whose registered office is situated at Stanhope House, Mark RAKE, Wirral, Merseyside, CH62 2DN;
1.2 “Additional Services” means any other services other than the Services agreed to be provided by the Company to the Client on agreed terms and set out as such in the Contract;
1.3 “Charges” means the Company’s charges from time to time for the provision of the Services unless otherwise expressly agreed with the Client and specified in the Contract;
1.4 “Company Material” means any Documents or other materials, and any data or other information provided by the Company in connection with or relating to the Services including any targeted press or mailing list;
1.5 “Contract” means the contract for the provision of the Services to which these conditions are incorporated and may be appended;
1.6 “Conditions” means the terms and conditions as set out in this document. In the event of any conflict between the provisions of these Conditions and the terms and conditions as set out on the Company website then these Conditions shall prevail;
1.6 “Documents” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device (electronic or otherwise) embodying other data;
1.7 “Client” means the person firm or company purchasing or agreeing to purchase the Services from the Company in accordance with the Conditions;
1.7 “Client Material” means any Documents or other materials, and any data or other information provided by the Client relating to the Services;
1.8 “Services” means the those services as defined in the Contract but includes the provision of related services carried out in connection with the running of a marine consultancy business and administration services provided by the Company for the Client;
1.9 “Term” means the period from the start date to the end date being the minimum period for the provision of the Services as set out in the Contract and continuing thereafter in full force and effect unless terminated in accordance with the provisions of these Conditions.
2. The Client has requested that the Company provide certain services to the Client.
3. The Contract is entered into between the parties for the supply of Services by the Company to the Client as further detailed and set out in the Contract.
4. The Company and the Client agree to be bound by the Conditions and the Contract in respect of the supply of the Services by the Company to the Client which together with any other documents (signed by the parties) shall form part of the Contract for the supply of the Services.
5. The Client acknowledges that it has read the Contract and Conditions and understands and agrees to be bound by them.
6 Services
6.1 The Client pursuant to the Contract engages the Company to provide the Services to the Client and the Company agrees to provide the Services for the Term subject to the Conditions and terms of the Contract.
6.2 All proposals made, quotations given, instructions accepted and contracts entered into by the Company with any person for the supply of the Services are subject to these Conditions to the exclusion of any other terms and conditions subject to which the Contract is accepted or purported to be accepted by the Client.
6.3 Unless otherwise agreed by the parties in writing, the Client shall at its own expense supply the Company with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable the Company to provide the Services in accordance with the Contract.
6.4 The Services shall insofar as is reasonably practicable be provided in accordance with the specification (if any) set out as provided by the Client but subject to these Conditions and shall be performed at such times as the Company shall in its sole discretion decide.
6.5 The Client shall afford to the Company all reasonable co-operation in all matters relating to the performance of the Company’s obligations under the Contract.
6.6 The Company does not warrant, guarantee or undertake on behalf of any third party supplier or service provider that access to any facilities or any products or services will be uninterrupted or of any particular level of availability or quality.
7 Charges
7.1 Subject to any special terms agreed in writing by the parties, the Client shall pay the Charges and any expenses together with such additional sums which are agreed between the Company and the Client for the provision of the Services and any Additional Services.
7.2 The Client shall be liable for costs incurred as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Material or any other cause attributable to the Client.
7.3 The Company shall be entitled to vary its standard Charges from time to time by giving not less than 14 days’ written notice to the Client.
7.4 All Charges and sums quoted payable to the Client under the Contract are exclusive of any VAT. Should the Company register for VAT purposes, the Client shall then become additionally liable for any VAT at the applicable rate from time to time.
7.5 The Charges and any additional sums payable shall be paid in full by the Client into such account as the Company shall reasonably instruct (together with any applicable VAT and without any set off or other deduction whether for withholding tax or otherwise) within 14 days of the date of the said invoice (the “Due Date”). Time of payment for the Company’s invoice shall be of the essence. EVANS MARINE SERVICES LIMITED – TERMS AND CONDITIONS OF BUSINESS
7.6 If payment is not made within the Due Date, the Company shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% above the base rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full.
7.7 The Client shall reimburse the Company for all out of pocket expenses incurred by it in connection with the Services for the Client.
7.8 The Company will not be obliged to provide the Services unless all fees and disbursements due to it in relation to the provision of the Services are received in advance.
8 Materials
8.1 The property, copyright and any other intellectual property rights in any Client Material shall belong to the Client. The property, copyright and any other intellectual property rights in any of the Company Material shall belong to the Company, subject only to the right of the Client to use the Company Material during the Term.
8.2 The Client warrants that any Client Material and its use by the Company for the purpose of providing the Services will not infringe the copyright or other rights of any third party and the Client shall indemnify the Company against any loss, damages, costs, expenses or other claims arising from any such infringement.
9 Confidential Information
9.1 The parties agree on the following terms not at any time during the Term to divulge or allow to be divulged to any person any confidential information relating to the business or affairs of the other party to this Contract.
9.2 All information (including, without limitation, the terms of the Contract, business and financial information, client and vendor lists and pricing and sales information) disclosed by either of the parties (“the Disclosing Party”) to the other party (“the Receiving Party”) pursuant to the Contract shall be confidential. The Receiving Party shall maintain the confidentiality of all such information and shall not, without the prior written consent of the Disclosing Party (i) utilise the same, directly or indirectly, for its own business purposes or for any other purpose or (ii) disclose the same to any third party. This clause does not apply to any information in the public domain or which is required to be disclosed in respect of the provision of the Services by the Company, or pursuant to an order issued by a court of competent jurisdiction or applicable law or regulation or information which is disclosed by the Receiving Party to its professional advisors on a confidential basis.
9.3 The Client specifically undertakes at all times to keep confidential any Company information confidential (including this document, the lists or specific client details and information relating to the Company’s business or affairs) confidential and specifically not to disclose (whether or not for profit) such list, Documents or information to any competitor of the Company or any other person, firm or company engaged in similar activity during the Term and at any time following the date of expiry or termination of the Contract.
10 Warranties and Liability
10.1 The Company warrants to the Client that the Services will be provided using reasonable care and skill. Notwithstanding any provision to the contrary, any dates, periods or times specified by the Company in the Contract are estimates only and time shall not be of the essence for the performance by the Company of its obligations under the Contract.
10.2 Except in respect of death or personal injury caused by the Company’s negligence, or as expressly provided in these Conditions, the Company shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of anticipated savings, business revenues, or profits (whether categorised as direct or indirect) or any indirect, special or consequential loss (including losses arising from business interruption, wasted management time, loss of goodwill, data and all other such loss whether or not arising in the normal course of business), damages, costs, expenses or other claims (whether caused by the negligence of the Company, its servants or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client.
10.3 The entire liability of the Company to the Client under or in connection with the Contract shall not in any event exceed the amount of the Charges paid by the Client for the provision of the Services.
10.4 The Client agrees to indemnify and keep the Company fully indemnified from and against any loss, claim or liability whatsoever incurred or suffered by the Company as a result of negligence or any default by the Client (or its employees, agents or representatives) of its obligations however arising in connection with the Services, together with expense, claim, loss or damage which the Company or any of its employees, agents, sub-contractors and other clients) may suffer due to the negligence or breach of the Client (or its employees, agents or subcontractors).
10.5 The Client agrees and acknowledges that the allocation of risk in this clause 10 is fair and reasonable in the circumstances having been taken into account in setting the level of the Charges.
11 Force Majeure
11.1 The Company shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations under the Contract if the delay or failure was due to any circumstances or cause beyond the Company’s reasonable control.
11.2 Without prejudice to the generality of the foregoing, circumstances beyond the Company’s reasonable control shall include act of God, server crashes, virus attacks on equipment, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, damage, bad weather, software, power or equipment failure, strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Company or of a third party).
12 Termination
12.1 Without prejudice to any other right or remedy available to it the Company shall be entitled to cancel the Contract or suspend any further performance under the Contract without any liability on the part of the Company to the Client EVANS MARINE SERVICES LIMITED (t/a SEA SECRETARY) – TERMS AND CONDITIONS OF BUSINESS notwithstanding any previous agreement or arrangement to the contrary in the event that:
(a) the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or a firm) becomes bankrupt or goes into liquidation (otherwise for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Client; or
(c) the Client ceases or threatens to cease to carry on business; or
(d) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
13 Acknowledgements
The Client agrees and irrevocably declares and acknowledges as follows:
13.1 The Company shall be entitled at its discretion to immediately terminate this Agreement and the provision of Services (or take all or any actions as are authorised under the Conditions) in the event that the Client becomes a prohibited person (under relevant law including without limitation, by reason of capacity, solvency, qualification, undischarged bankruptcy, criminal or civil prosecution, residency or international embargo or restriction) or engage in any unlawful business (under relevant law, including without limitation any illegal activity, Company prohibited activities or activities not previously notified to or approved in writing by the Company).
13.2 Under no circumstances shall the Company and the Company officers be required to take any action which they consider unlawful or improper or which in their opinion may cause any of them to incur any personal liability and such refusal shall be without liability or breach of contract.
14 Notices
14.1 Any notice or other communications to be given under the Contract shall be in writing and may be delivered by hand or sent by first class prepaid post (or if the recipient is in another country by prepaid airmail) to the relevant address(es) stated in the Contract (or to such other address as the addressee may from time to time have notified for that purpose) or sent by facsimile transmission.
14.2 Communications shall be deemed to have been received, if delivered by hand at the time of delivery, if posted two (2) working days or ten (10) working days if prepaid airmail after posting, and if sent by fax transmission, at the date of transmission.
15 General
15.1 These Conditions (together with the terms (if any) set out in the Contract constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other warranties terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
15.2 In the event of any conflict between the provisions of these Conditions and any conflict between the Contract provisions, the parties shall adopt the meaning which best gives commercial efficacy to the Contract having regard to the Company’s original intention.
15.3 The Company may employ sub-contractors for carrying out any part of the Services and shall be entitled at all times in its absolute discretion to decide the number of and which of its employees agents or sub-contractors shall provide the Services on behalf of the Company.
15.4 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.5 The parties acknowledge and agree that the Contract shall not establish or constitute any relationship of partnership, joint venture, franchise or agency between the parties except as otherwise expressly provided or agreed and neither party shall have the power to bind the other without the other’s prior written consent.
15.6 The Client shall not assign all or any of its rights or obligations under this Agreement without the written consent of the Company. References to the Client include its personal representatives, permitted origins and successors in title. Each party warrants its power to enter into the Contract and has obtained all necessary approvals to do so.
15.7 Except as expressly provided (including in respect of indemnity), the parties do not intend any term of this Contract to create any rights or benefits to any other party other than the parties to the Contract or to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of any third party which exists or is available apart from the Act.
15.8 If any provision of the Contract or these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract or these Conditions and the remainder of the provision in question shall not be affected.
15.9 Reference to any statute or statutory provisions shall be deemed to include any statutory modifications or re-enactments thereof or any rules or regulations made thereunder or any enactment repealing and replacing the Act referred to.
15.10 Unless the context otherwise requires, words importing the singular shall include the plural and vice versa; words importing the masculine gender shall include the feminine gender and vice versa; and references to persons shall include bodies of persons whether corporate or incorporate.
15.11 Headings are inserted for convenience only and shall not affect the construction or interpretation of these Conditions.
15.12 English law shall apply to the Contract and these Conditions, and the parties submit to the jurisdiction of the English courts.
15.13 The Client for the exclusive benefit of the Company submits to the exclusive jurisdiction of the High Court of Justice in England and waives all rights to object to forum.
15.14 Nothing in this Agreement shall limit the right of the Company to take proceedings in any other court of competent jurisdiction or in more than one jurisdiction, whether concurrently or not.
15.15 The Client by this provision irrevocably appoints and authorises the person, firm or entity (if any) in the United Kingdom set out in the Contract to accept service on its behalf of all legal process and service on the entity shall be deemed good service on the Client.
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