In this Agreement, the headings are for convenience only, and the following words shall have the meanings ascribed to them hereunder as follows:
Oceanus Marine Ltd., and/or “Surveyor / Consultant” is the company trading under these conditions.
“Client” is the party at whose request or on whose behalf Oceanus Marine Ltd., in connection with instructions received from the client.
“Report” means any report or statement supplied by the Oceanus Marine Ltd., in connection with instructions received from the Client;
“Disbursements” include 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 Oceanus Marine Ltd., to the Client net of value-added tax (where applicable) and any disbursements.
Oceanus Marine Ltd., shall provide its services solely in accordance with the terms and conditions provided herein.
The Client shall set out in writing the services required from Oceanus Marine Ltd., following receipt thereof, Oceanus Marine Ltd., shall confirm in writing either that it accepts those instructions or alternatively what services it will perform in connection with the Client’s instructions. Once the parties have agreed on what services are to be performed, the agreed services shall be indicated in written form, and any subsequent changes or additions may only be agreed to by both parties in writing.
Surveys & Valuations
Client is to ensure that all appropriate safety measures are taken to provide safe and secure working conditions provided always that in the event of any breach causing any failure on the Surveyor’s part to undertake the Scope of Work the Client shall be responsible for all consequential costs incurred by the Surveyor and in respect of any element of the Scope of Work undertaken.
Pursuant to the Scope of Work, the Surveyor will inspect the Vessel as thoroughly as is practicable and endeavor to comment on the more important items where, in the Surveyor’s reasonable opinion, major costs consequences are considered likely to arise. It follows that the Surveyor cannot comment on every minor matter but the Surveyor will try to point out where small factors may become more serious.
The surveyor’s intention is to report on the condition of the hull(s), superstructure, and fixtures (if any) of the Vessel including its machinery so far as can reasonably be ascertained from a visual inspection of the Vessel at its location at the time of the survey. The Client accepts that the Survey’s survey report(s) cannot cover hidden, unexposed or inaccessible areas of the Vessel, neither can the Surveyor undertake to investigate areas that the Surveyor believes to be inaccessible at the time of inspection. Where the Surveyor is unable to gain access to areas commonly accessible, the Surveyor will endeavor to point this out.
In every case, the Surveyor recommends a full survey of a Vessel, to include inspection of the Vessel while lifted out and while in the water. Where the Surveyor accepts instructions to survey a Vessel solely on the basis of an inspection of the Vessel out of the water, the Surveyor makes no representation and gives no warranty as to the watertight integrity or buoyancy of the Vessel.
All valuation work undertaken shall be in accordance with the Scope of Work and, unless otherwise stated in writing, such work relates solely to the date and place referred to. Valuations are based on opinions only and are not representations of fact, nor do they carry with them any guarantee of the particulars or information on which opinions are based. Valuations assume a willing buyer and willing seller and market conditions applicable at the time of valuation or such other date as is expressly referred to.
In case of an offshore survey and the surveyor will not be able to disembark due to adverse weather/sea conditions and thus has to remain on board the yacht or vessel, owners/charterers managers has to provide proper accommodation and subsistence. The rate of payment applicable will be then charged per hour as agreed. Traveling costs, accommodation, and time for repatriation will be charged accordingly.
Repair works & Consultancy Services
The client is to give in writing the full scope of works in full detail to Oceanus Marine Ltd., including but not limited to drawings and builders specifications as well as any latent defects noted if known where applicable. Oceanus Marine ltd., are not to be held responsible if any damages occur during repair which is due to unknown defects or damages. Oceanus Marine Ltd., is not to be held liable for any damages due to handling/transfer from vessels to service launches as well as carriage of and/or damages during transportation to workshop/s.
Payment charges are effective from the departure of personnel from the workshop up to their return to the workshop.
In the case of an offshore job the service personnel has to remain on board / or travel with the vessel due to adverse weather/sea conditions, the rates will be still applicable as agreed in addition to all costs involved for repatriation including traveling time. Accommodation and substance are also to be provided in such cases.
4. Payment Terms
The Client shall pay Oceanus Marine Ltd.’s fees as well as (where applicable) VAT and disbursements, punctually and in any event not later than 30 running days following the relevant invoice date, or in such other manner as may have been agreed in writing between the parties.
Any delay in payment shall entitle Oceanus Marine Ltd., to interest at the maximum rate allowed in terms of applicable law, to run from the date of invoice issue until the date of effective payment.
In the event of Oceanus Marine Ltd., being totally or partially prevented by reason of any cause whatsoever outside the Oceanus Marine Ltd.,’s control (any of mentioned in clause 8), from performing or completing and service for which an order has been given or an agreement made, Oceanus Marine Ltd., shall be relieved of all responsibility whatsoever for partial or total non-performance of the required service and the Client will pay to the company on-demand:
- the amount of all abortive expenditure actually made or incurred
- a proportion agreed fee of the service actually carried out.
5. Obligations and Responsibilities
(a) Obligations and Responsibilities of Client
The Client shall ensure that full instructions are given to Oceanus Marine Ltd., and are provided in sufficient time so as to enable the required services to be performed effectively and efficiently and to procure all necessary access for Oceanus Marine Ltd., 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.
(b) Obligations and Responsibilities of Oceanus Marine Ltd.,
Oceanus shall use reasonable care and skill in the performance of the services.
Oceanus shall submit a final written report to the Client following completion of the agreed services describing the findings of Oceanus Marine and the condition and/or quality of the object and/or purpose of the task given, unless otherwise expressly instructed by the Client not to do so.
Oceanus undertakes not to disclose any information provided in confidence by the Client to any third party and shall not permit access to such information by any third party unless the Client expressly grants written permission save where Oceanus Marine may feel required to do so for purposes of litigation, or as may be required by an order of a competent court of law.
The right of ownership in respect of all original work created by Oceanus Marine remains the property of Oceanus Marine.
(f) Conflict of Interest/Qualification
Oceanus Marine 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 Oceanus to continue its involvement with the task given. The Client shall be responsible for payment of Oceanus Marine’s fees, as well as any applicable VAT and disbursements up to the date of notification.
Without prejudice to Clause 7, Oceanus Marine Ltd., its officers, employees, and agents shall be under no liability whatsoever to the Client for any loss, damage, delay/demurrages, loss of sale, profits, or expense of whatsoever nature, whether direct or indirect and howsoever arising, unless same is proved to have resulted solely from the negligence, gross negligence or willful default of Oceanus Marine or of any person (whether an individual or a corporate body) for which Oceanus Marine is responsible.
Oceanus Marine Ltd., is neither an insurer nor a guarantor and disclaims all liability in such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance.
Except to the extent that Oceanus Marine Ltd., would be liable under Clause 6, the Client hereby undertakes to keep Oceanus Marine Ltd., 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 any one or more of them or incurred or suffered by any one or more of them, and against and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which Oceanus Marine Ltd., may suffer or incur (either directly or indirectly) in the course of the services provided in terms of this Agreement.
8. Force Majeure
Neither Oceanus Marine Ltd., nor the Client shall, except as otherwise provided in this Agreement, be responsible for any loss, damage, delay, or failure in performance herein arising or resulting from an act of God, an act of war, seizure under legal process, storms, adverse sea conditions, restricted boarding conditions, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people.
Oceanus Marine Ltd., shall effect and maintain, at no cost to the Client, professional liability insurance for such loss and damage for which Oceanus Marine Ltd., may be held liable to the Client in terms of this Agreement.
10. Right to Sub-contract
Oceanus Marine Ltd., shall have the right to sub-contract any of the services provided in terms of this Agreement.
11. Jurisdiction, Law and Additional Terms
This Agreement shall be governed by and construed in accordance with the law of Malta, which shall also govern anything not specifically included herein. Any dispute shall be subject to the exclusive jurisdiction of the Maltese Courts.
Oceanus Marine Limited