Trans Marine Propulsion Systems, Inc.
GENERAL TERMS AND CONDITIONS for the SALE of TECHNICAL SERVICES
These General Terms and Conditions for the Sale of Technical Services (hereinafter referred to as the “Conditions”) apply to Work, as defined in paragraph 2, carried out by Trans Marine Propulsion Systems, Inc., (hereinafter referred to as “TMPS”), whether or not any reference to the Conditions is made in the respective contract, purchase order or order confirmation (hereinafter referred to as the “Contract”). Inclusion by the purchaser (hereinafter referred to as the “Customer”) of any terms inconsistent with or in addition to the Conditions is of no effect unless accepted in writing by TMPS.
2. SCOPE OF TMPS’ WORK
Subject to the Conditions, TMPS agrees to provide the Customer with qualified technical personnel (hereinafter referred to as the “Personnel”) for the repair or maintenance of the Customer’s equipment at the Customer’s site, dock or vessel (hereinafter referred to as the “Work”) in accordance with the Contract and these Conditions. Unless otherwise specifically agreed in writing, the following preparatory, related or required work does not form a part of the Work including, but not limited to, stripping, dismantling pipes and equipment, cleaning, gas freeing and providing general access to work space, tools and cranes.
3. OBLIGATIONS OF THE CUSTOMER
The Customer shall provide at no cost to TMPS the amenities listed in 3.1 through 3.7 below. In the event the Customer is unable or unwilling to provide the required amenities, TMPS at its own option, may provide the amenities itself for the account of the Customer, or it may terminate the Contract without liability.
3.1 Equipment and Tools
Ancillary personnel equipped with necessary tools, heavy duty hoisting and transport facilities including fuel, lubricants, water, electricity, compressed air and cleaning facilities if not separately otherwise agreed.
Proper heated/air conditioned facilities for working, board and lodging for the Personnel in close proximity to the work site as follows:
a) sufficient safe storage sheds with locks, equipped with shelves and bins for tools, equipment and supplies of the Personnel;
b) sufficient changing rooms with locks and washing facilities for the use of the Personnel;
c) sufficient furnished offices with locks, equipped with telephones, telefax, Internet connection and other communication requirements of the Personnel; and
d) accessible toilet facilities and drinking water at the work site.
3.3 Electric Power and Compressed Air
Electric power outlets for welding equipment, drills and hand lamps as well as compressed air lines shall be provided at points convenient and accessible for the work site.
3.4 Customs Assistance
All necessary assistance requested by TMPS with the customs formalities required for the import and export of the Supplier’s equipment and tools free of all duties and taxes.
3.5 Compliance with Laws, Rules and Regulations
Customer compliance with all laws, rules and regulations and permitting applicable at the work site, or arising out of the performance of the Work.
3.6 Taxes and Personnel Costs
Payment of all governmental imposed taxes, duties or charges levied upon TMPS or its Personnel in connection with the performance of the Work at the Customer specified site or incidental to the lodging or travel of the Personnel.
3.7 Requisite Visas and Work Permits
All necessary actions requested by TMPS to ensure that the Personnel obtain visas and any other official entry, exit, residence or working permits that may be required in the country of the work site, including free ingress and egress from the installation.
4.1 Evidence of Work
Time sheets shall be completed by the personnel at the completion of the Work or latest once a week and shall be checked and attested without delay by the Customer’s representative. Time sheets prepared by the Personnel and attested by Customer’s representative shall be considered proper documentation for hours of work invoiced by TMPS.
4.2 Remuneration and Work Hours
a) Hourly rates and daily allowances are specified in TMPS’ Price List attached and shall be charged to the Customer accordingly. The Customer will be charged for the daily allowance of the Personnel based on the number of work hours and days from the time and date of departure of the Personnel until their return in accordance with the travel regulations of TMPS.
b) If not expressly otherwise agreed in writing, the Contract prices proposed by TMPS assume the Work will be performed during normal working hours.
Unless otherwise agreed, any Work done outside the normal working hours shall be charged to the Customer as overtime. If extensive overtime is required, the permission of TMPS must first be obtained. Overtime work will be charged at prevailing prices specified in TMPS’ Price List.
4.4 Waiting Time
Any waiting time for which TMPS is not responsible, shall be charged to the Customer as normal working time.
4.5 Traveling Expenses
a) All traveling expenses incurred in connection with the Contract shall be chargeable to the Customer. Traveling expenses include:
I. fares for journey by rail, sea, air, car and/or bus;
II. carriage, freight and customs duties as well as insurance due in connection with personal effects, instruments and tools required for the Contract, including necessary costs for overweight on journey by air; and
III. all out-of-pocket expenses incurred by TMPS for the Work ordered by the Customer, such as telefax, telexes, telegrams, internet charges and phone calls.
b) Time spent by Personnel traveling from TMPS’ premises and back to TMPS’ offices shall be charged at the normal work hour rate specified in TMPS’ Price List for the respective Personnel.
c) All travel of Personnel between Customer-provided lodging and the work site shall be for Customer’s account.
4.6 Extra Work
Any assistance or work performed by TMPS outside the contract, or related to paragraph 12 shall be charged as extra work in accordance with TMPS’ Price List.
Local holidays shall be observed. The Work may proceed on TMPS’ observed holidays, which are not local area holidays, but in no event will Personnel be obliged to work on Christmas Day, New Year’s Day, Good Friday and Easter.
If the work site is not in TMPS’ country and the Contract duration exceeds three (3) consecutive months, then each member of the assigned Personnel team shall at the end of each period of two (2) months be entitled to a round trip to the country of TMPS and back for a period of two (2) weeks. Such round trip traveling expenses shall be for the Customer’s account in accordance with paragraph 4.5 above.
5. ILLNESS & ACCIDENTS OF THE PERSONNEL
In the event of personnel illnesses or accidents, at work or outside work, necessitating medical attention or hospital treatment, the Customer shall be responsible for ensuring that such medical facilities and necessary medications are made available to the Personnel. Medical attention and hospital treatment shall be the best possible available. If after medical examination it is considered necessary to repatriate injured or deceased person, the Customer shall arrange for such repatriation in the safest and most expedient manner. Subject to Paragraph 11, all costs incurred under this Paragraph 5 shall be for the account of TMPS.
The Customer shall indemnify TMPS of all fines, penalties or charges imposed as a result of the failure to comply with all safety related laws, rules and regulations imposed in the jurisdiction where the Work is performed, unless such fine, penalty or charge is imposed as a result of the intentional misconduct of TMPS or its Personnel.
6. WITHDRAWAL & SUSPENSION
6.1 Withdrawal of Personnel
If the Work is interrupted by Force Majeure as defined in Paragraph 15 or for other reasons not attributable to TMPS, the costs for maintaining the Personnel at the installation (including but not limited to wages and lodging) will be borne by the Customer. If the interruption continues for more than one (1) week, the Personnel shall, if required by TMPS, be returned to TMPS’ country. All expenses in relation to such withdrawal and/or subsequent return shall be for the account of Customer.
If Personnel have been withdrawn, the performance of the Contract shall be suspended until the Customer has requested the return of the Personnel to the work site by giving a two week’s prior notice. TMPS shall be entitled to an extension of time for completion of the Contract equal to the delay caused by suspension and subsequent resumption of the work.
Should the suspension exceed two (2) months, either party shall be entitled to terminate the Contract by notice in writing to the other party without prejudice to the rights of either party up to the date of termination.
6.4 Extra Costs
All reasonable extra costs, including the extra cost of completing the Contract, incurred by TMPS as a consequence of work suspension, and any subsequent resumption of the work, shall be reimbursed by the Customer.
7. PRICE AND PAYMENT
7.1 Price and Payment
All prices for hourly and daily allowances shall be in accordance with TMPS’ Price List. TMPS reserves the right to make annual changes to their Price List without prior notice effective January 1 of each year the Contract is in force. Unless otherwise agreed payment is to be made by bank remittance in the currency and to the bank account set forth in the invoice within 20 (20) days from the date of the invoice. Payment shall be made in full without any offset, counterclaim or deduction. All expenses for remitting payments shall be borne by the Customer.
7.2 Overdue Interest
Interest on overdue payments is charged at the percentage rate specified in TMPS’ invoice form the maturity date until the actual date of payment, or, if unspecified, interest shall accrue at the rate of one and one-half percent (1.5 %) per month, compounded annually from the date of maturity. Customer agrees to pay TMPS all costs related to the collection of overdue amounts, including reasonable attorney’s fees.
If the scheduled duration of the Work is expected to exceed one (1) month, TMPS may invoice the Customer on a monthly basis in accordance with Paragraph 7.1 above and shall, when paid, be deducted from TMPS’ final invoice.
8. LOCAL LAWS AND SAFETY REGULATIONS
8.1 Local laws and Regulations
The Customer shall provide all necessary assistance to ensure that TMPS and Personnel obtain relevant information concerning local laws and regulations applicable to the Work. In the event local laws provide for TMPS lien rights, the Customer hereby consents to the attachment of any liens on Customer’s property based upon, arising out of, or as a result of the Work. The Customer furthermore waives any and all claims, defenses, and causes of action that the Customer may have in connection with any such lien rights.
8.2 Customer’s Safety Regulations
The Customer shall provide TMPS full details of any safety regulations which the Customer imposes on its own employees, and TMPS shall ensure the observance of such safety regulations by its Personnel.
Should the Customer become aware of any failure by TMPS’ Personnel to materially adhere to Customer’s safety regulations, the Customer shall so inform TMPS in writing. TMPS shall, in consultation with the Customer, take such measure as are necessary to avoid repetition of such non-adherence.
8.3 Special Local risks
The Customer shall inform TMPS and its Personnel of any dangerous conditions or particular risks that may be encountered in the Customer’s country, at the work site or in the use of any equipment and tools provided by the Customer. The Customer will comply with all reasonable requests by the Personnel for the invocation of additional safety measures.
Should the Work performed by TMPS be inadequate due to defective workmanship, TMPS, at its cost, will redo such Work, provided the defective workmanship appears during the warranty period. The warranty of the Work performed is limited to defective workmanship which appears within three (3) months after completion of the Work.
THIS IS THE ONLY WARRANTY APPLICABLE TO THE WORK
PERFORMED UNDER THE CONTRACT AND REPLACES ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PERTICULAR PURPOSE OR LATENT DEFECTS, AND ANY OTHER OBLIGATION OR LIABILITY, WHETHER IN CONTRACT, AT LAW OR IN EQUITY.
10. TMPS’ LIABILITY
TMPS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES NOR FOR ANY LIABILITY FOR LOSS OF TIME, INABILITY TO USE REPAIRED EQUIPMENT, LOSS OF ACTUAL OR POTENTIAL PROFIT OR REVENUE, PUNITIVE OR EXEMPLARY DAMAGES, THE COST OF SUBSTITUTE REPAIRED EQUIPMENT, TOWAGE CHARGES, POLLUTION REMEDIATION COSTS, DAMAGE TO ANY VESSEL, ENGINE ROOM OR POWER PLANT SITE, YARD OR OTHER PROPERTY OF CUSTOMER, ARISING OUT OF OR CONNECTED WITH THE PROVISION BY SUPPLIER OF THE WORK HEREUNDER.
In no case shall the liability of TMPS inure to damages that could not have been foreseen by TMPS at the time the Contract was issued. TMPS shall not be liable for any work carried out by the Customer or by any third party, even though carried out with the assistance of TMPS’ technical advisor. The Customer carries the risk for its equipment and other goods in connection with the work, even if the equipment or goods are provided by TMPS under a separate contract and warranty or if the equipment and goods are stored in TMPS’ buildings or other facilities.
Notwithstanding any other provision of the Contract or these conditions, TMPS’ maximum liability hereunder shall not exceed twenty percent (20%) of the Contract price.
11. CUSTOMER’S LIABILITY
Damage for which TMPS is not liable under paragraph 10 above shall be for the account of Customer. The Customer shall likewise be liable if damages are due to defective tools, hoisting equipment or other equipment or materials furnished by the Customer, and Customer’s liability shall not be diminished by the absence of any complaint by the Personnel about defective conditions.
12. EXTENSION OF TIME
Should delay in completion of the Contract be the fault of or caused by any act or omission of the Customer, there shall be granted such extension of time for the completion as is reasonable having due regard to all of the circumstances surrounding the delay.
TMPS and the Customer shall at their own cost provide for and maintain comprehensive insurance coverage to protect their own property and personnel.
14. SALES OF SPARE PARTS
The sale of any spare parts purchased from TMPS by Customer shall be in accordance with TMPS’ General Terms and Conditions for the Sale of Spare Parts.
15. FORCE MAJEURE
Neither Customer nor TMPS shall be considered in default of or liable under the contract to the extent the party can establish that fulfillment of its Contract obligations has been prevented by Force Majeure.
Either party claiming a Force Majeure event shall be under a duty to immediately inform in writing the other party and take the necessary measures to mitigate the loss which has occurred, providing it can do so without unreasonable inconvenience or cost.
Force Majeure means an occurrence beyond the control of the party affected (including, but not limited to: wars, civil riots, terrorism or specific threats of terrorism, hostilities, public disorder, strikes, lockouts or other industrial disputes and any other conflicts, embargoes, insurrections, epidemics, fires, acts of God, governmental restrictions and actions, winding up or failure of a subcontractor to provide materials or goods, shortage of transport or of material, restrictions in the use of power or loss of works) provided that such party could not reasonably have foreseen such occurrence at the time of entering into the Contract and could not reasonably have avoided or overcome the Fore Majeure event or its consequences.
16. OTHER PROVISIONS
The failure of either party to insist on any occasion upon the performance of the Conditions or any other indulgence granted by one party to the other shall not hereby act as a waiver of the Conditions.
If any of the Conditions or any addenda thereto should be declared invalid, null, void or unenforceable, the validity, legality and enforceability of the remaining Conditions shall not in any way be affected or impaired thereby.
Any illustrations, catalogue pictures, diagrams, statements of weights and measures and similar disclosed data provided by TMPS are for reference only and are not to be relied upon by the Customer as containing any representations, warranties or indemnities, unless expressly agreed in writing by TMPS. All such disclosed data shall be treated as confidential and shall not be disclosed to a third party without TMPS’ written consent.
Attorneys' Fees. In connection with any suit, action, or other proceeding, including arbitration or bankruptcy, arising out of or in any manner relating to collections of outstanding balances owed to TMPS, the prevailing party shall be entitled to recover reasonable attorneys' fees and disbursements (including disbursements which would not otherwise be taxable as costs in the proceeding). All references to attorneys' fees shall be deemed to include all legal assistants' and paralegals' fees and shall include all fees incurred through all post-judgment and appellate levels and in connection with bankruptcy proceedings.
17. ARBITRATION AND APPLICABLE LAW
All disputes arising between the Customer and TMPS shall be settled through friendly consultation between the parties. In the event that no agreement can be reached through consultations, the dispute shall be submitted to arbitration for final and binding resolution. Either party may at any time submit a dispute to arbitration and this action shall terminate any obligation to amicably consult under.
The arbitration procedure shall be governed by the Rules of the American Arbitration Association and the arbitration shall be conducted by one or more arbitrators appointed in accordance with the said rules. The arbitration proceeding shall be in the English language and will take place in the State of Florida.
This Contract and these Conditions shall be governed by and interpreted in accordance with the laws of the State of Florida, excluding its conflict of law rules.
Nothing contained in this paragraph 17 shall preclude TMPS from bringing any legal suit, action or proceeding against the Customer in the courts of any jurisdiction where the Customer or any of its property or assets may be found or located; to the extent permitted by the applicable laws of such jurisdiction, the Customer hereby irrevocably submits to the jurisdiction of such court.