© 2016 by Pilot Marine, Inc.

TERMS & CONDITIONS

STANDARD TERMS AND CONDITIONS OF CONTRACT

  1. Definitions and Application

    1. The “Parties” are Pilot Marine (the “Company”) and the “Client” (on whose behalf the Services are performed). “Third Party” is any party other than the Company or the Client.

    2. The “Agreement” is the entire contract between the Parties, consisting of the Company’s written “Acknowledgment of Assignment” and these Terms and Conditions. These Terms and Conditions, and Acknowledgement of Assignment, constitute the entire agreement for services between Company and Client and supersedes all other proposals, negotiations, and counterproposals.  

    3. Company objects to the inclusion of any different or additional terms by Client. If Client includes or attaches any different or additional terms to Client’s purported acceptance, a contract for the performance of services will result, without the inclusion of Clients’ terms and conditions.  

    4. The “Fees” are the charges payable by the Client to the Company for:

      1.  “Services” (the work to be carried out by the Company, on behalf of, and for the benefit of, the Client ONLY, as agreed between the Parties in the Agreement) and 

      2. “Expenses” (the cost of any/all reasonable incidental charges associated with the Assignment).

    5.  “Report” is any report, advice or written statement supplied by the Company in performance of the Services. Unless otherwise agreed by the Company in writing, the Services provided under this Agreement are intended only to benefit the Client.   This Agreement is not intended to and shall not be construed to give any Third Party any interest or rights (including without limitation any Third Party beneficiary rights) with respect to or in connection with any Services performed or any Reports provided by the Company.  

  2. Fees /Payment Terms

    1. The Client shall pay the Fees punctually and not later than 30 days after the invoice date, at which point they are considered overdue. The Company reserves the right to charge a one-time late fee of 5% plus interest of 20% per annum accrued continuously on any overdue invoice or on any undisputed part thereof, and to suspend performance of the Services and withhold any Reports until payment is made. 

    2. Services are charged by time and expenses are charged at cost, unless otherwise agreed by the Company at the outset (eg. fixed fee). Current rates are available on request and are subject to change at any time without notice. 

    3. Fee estimates, issued in good faith based on information provided by the Client, are not binding. 

    4. The Company may require part or full payment up front as a condition of commencing Services. If the required payment is not received within 7 days of Agreement, the Company may terminate the Agreement. In the event of protracted Services, the Company may submit interim invoices.

    5. The Client must notify the Company within 7 days of any invoice dispute, giving full reasons for the disputed portion, and paying the undisputed part as above. The Parties shall endeavor to informally resolve the disputed portion without delay. 

    6. Without prejudice to any Company rights of recovery against a Third Party, the Company holds the Client responsible for paying the Fees, regardless of the Client’s relationship to any Third Party.

  3. Obligations, Responsibilities and Performance

    1. Unless the Client designates a specific point of contact with whom the Company should communicate, the Company is entitled to act upon the instructions of any of the Client’s employees or agents, and to rely upon any information supplied by them.

    2. The Client must provide, in a timely fashion, all available relevant information and/or access to vessels and work sites to the Company’s staff who are performing the Services. The Company’s ability to perform the Services efficiently and effectively depends on this.

    3. The Client acknowledges that the Company shall necessarily have to use its skill and judgement in making reasonable assumptions in cases where the information provided is incomplete or inaccurate.

    4. The Client will ensure that all appropriate safety measures are taken to provide safe and secure working conditions for the Company.

    5. The Client agrees to inform the Company if the Assignment involves, or is reasonably likely to involve, litigation.

    6. The Company will use reasonable care and skill to carry out the Services in accordance with good marine surveying and consulting practice. 

    7. Any timetable agreed by the Parties for the performance of the Services is necessarily an estimate only and is not guaranteed. The Company will use reasonable efforts to comply with agreed timetables.

  4. Reports

    1. The Company may submit to the Client various types of reports throughout and following completion of Services, including Preliminary, Survey, and Addendum Reports. However, the Client should rely only on information in the final written Report(s). The Company is not responsible for updating Reports for events that take place after issuance of the final Report(s).

    2. The Company has the right to issue amended Reports if presented with additional or conflicting information or if errors have been discovered in existing Reports as can occasionally occur during the normal course of business.  

  5. Indemnity 

    1.  Client agrees to indemnify, defend and hold harmless Company from any claims or lawsuits asserted by any Third Party relating to or arising out of the Services performed by Company under this Agreement.   Said indemnity shall not apply to claims for damages that are found in a final, non-appealable judgment to have been caused by the gross negligence, willful misconduct, or reckless conduct of the Company.

  6. Limitation and Exclusion of Liability

    1. The Company gives no warranties relating to its Services, express or implied, including warranties of workmanlike performance, suitability for purpose, or seaworthiness.  All such warranties are expressly disclaimed by the Company. 

    2. Any assessment in respect to a Pre-Purchase Survey will be made solely on the basis of the information provided by the Client to the Company, the documents examined, and the observations of the surveyor at the time of our attendance(s) at the shipyard, site or onboard the vessel.

    3. Neither the Pre-Purchase Survey nor the Condition Survey is a warranty of seaworthiness.

    4. Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OF ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS OR GOODWILL) SUFFERED OR INCURRED BY SUCH OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

    5. The Company will not be liable to the Client for the following related in any way to the Company’s performance of the Services: 

      1. any claims, fines, losses, damage, off-hire, delay, expense of any nature; or

      2. any latent defect which could not reasonably have been expected to have been discovered by the Services; or 

      3. any failure to advise or comment upon any matter which falls outside of the scope of the Services.

    6. If delayed by Force Majeure for a period of 30 days or more, either Party may serve notice on the other to terminate the Agreement. 

    7. The Company’s total maximum liability arising out of or relating to the performance of the Services, whether in contract, tort (including, without limitation, negligence), breach of statutory duty or otherwise shall be no greater than $10,000.00 USD.  Client acknowledges and agrees that this limit of liability applies in the aggregate. 

    8. The Client’s relationship is solely with the Company and no Company representatives have any personal liability at any time under any circumstances to the Client whether in contract or tort (including negligence) or otherwise. 

    9. Each of the paragraphs in this Section 6 is a separate limitation and survives, even if another of the said paragraphs is held inapplicable or unreasonable in any circumstances whatsoever, and will remain in force notwithstanding termination of the performance of Services by either Party.

    10. The Client will inform the Company of any complaints or dissatisfaction regarding the Services as soon as the Client is aware of such complaints, and will provide the Company with a reasonable opportunity to correct any deficiency in the Services provided. 

    11. The Client acknowledges and agrees by entering into any agreement with the Company that the above limitations and exclusions of liability are fair and reasonable in the circumstances. 

  7. Time-Bar 

    1. Any litigation by the Client against the Company arising out of or relating to the Services performed under this Agreement shall be commenced within 1 year after the date of the final invoice issued by the Company for the Services.  Client agrees that it shall be deemed to have waived any claims for which it fails to commence litigation within this one-year period.

  8. Suspension 

    1. The Company shall be entitled to suspend the Services for reasons of breach of the Agreement by the Client, Force Majeure, or following a request from the Client, in which case the Company shall be entitled to payment by the Client of any Fees or Costs already incurred before the time that Services are suspended. 

  9. Termination 

    1. The Company may, without prejudice to any other rights and without incurring liability to the Client, terminate the Agreement (in whole or in part) through written notice to the Client: 

      1. if the Client breaches the Agreement and the Client has failed to remedy the breach to the satisfaction of the Company within 10 working days of receiving written notice.  Should the Company choose not to terminate the Agreement, the Company shall be entitled to claim compensation in respect of the breach, additional costs incurred as a result thereof, and an extension of time to complete the Services.

      2. if the Client becomes bankrupt, insolvent, deceased, or ownership of the Client changes by more than half of the nominal value of its equity share capital; or

      3. if the Client enters or is likely to enter litigation or arbitration proceedings affecting the Agreement which would result in a conflict of interest between the Company and the Client; or

      4. if at any time the Company reasonably determines that its performance of the Services or activities related to the Agreement might breach legal or ethical standards.

    2. In such cases of Termination as above, the Client shall be liable on demand to pay the Fees in respect of the work performed up until the date of termination and all costs irrevocably incurred as a result of the termination.

    3. The Client may terminate the Agreement for any reason but remains liable for paying any Fees or Costs incurred before the time of Termination.

  10. Sub-contracting and Assignment 

    1. The Company shall be entitled to sub-contract any aspect of the Services under this Agreement without the prior written consent of the Client. The Company shall remain responsible for the due performance of the Services. 

    2. The Client is not entitled to assign, novate or otherwise transfer its rights and/or obligations (in whole or in part) under or in connection with the Agreement to any Third Party. 

  11. Modifications and Amendments

    1. No waivers, amendments, or modifications of these Terms and Conditions shall be valid unless reduced to writing and signed by both Parties.    These Terms and Conditions shall not be amended or modified by course of performance or course of dealing between the Parties.  No employee, principal or agent of Company is authorized to verbally modify or alter any of these Terms and Conditions.

  12. Severability, Entire Agreement, and Waiver

    1.  If any part of the Agreement is found by any court 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 the Agreement which shall remain in full force and effect.

    2. The Agreement comprises the entire agreement between the Parties and supersedes all previous understandings, communications and documents, including the Client’s standard terms. Neither of the Parties will be liable in contract, tort or otherwise for any representation that is not specified in the Agreement. The Parties represent that they have not relied on or been induced to enter into the Agreement by a statement or representation made by the other party other than those specified in the Agreement. 

    3. No waiver by the Company of any breach of the Agreement by the Client will be considered as a waiver of any subsequent breach of the same or any other provision. 

  13. Governing Law 

    1. The Agreement will be governed by and construed in accordance with Washington state law and the Parties hereby irrevocably agree to submit any disputes to the exclusive jurisdiction of the state or federal courts located within King County, Washington.