RIGPRO TERMS AND CONDITIONS

These Terms and Conditions apply to all orders for the provision of Services and/or the supply of Goods to the Client. By signing these Terms and Conditions, agreeing the Scope of Work and/or allowing the Company to commence the provision of Services and/or the supply of Goods, the Client acknowledges and agrees that it shall be bound by the Sales Agreement.

1.DEFINITIONS AND INTERPRETATION

1.1 In these Conditions:

Company means the relevant entities of the Southern Spars Group when trading as RigPro (these legal entities include Southern Spars Ltd, Future Fibres Rigging Systems SL, RigPro US LLC and Hall Spars BV) that will perform the Services and supply the Goods;

Company’s Group means the Company’s parent and subsidiary undertakings and its parent undertakings’ subsidiary undertakings from time to time;

Company’s Personnel means any employees, agents, sub-contractors or consultants or other persons engaged by the Company or a member of the Company’s Group to provide the Services;

Conditions mean the terms and conditions set out in this document;

Confidential Information has the meaning given in clause 15;

Client means any entity to which the Company is to provide Services and/or Goods pursuant to a Sales Agreement.

Client’s Personnel means any employees, agents, sub-contractors, consultants or other persons engaged by the Client from time to time (including captain, crew (to include permanent and temporary crew) and the owner’s representatives);

Deliverables mean any report, advice, recommendation or written statement including any drawings, calculations and/or data supplied by the Company in the performance of the Services;

Disbursements mean the cost of any reasonable expenses incurred by the Company in the provision of the Services, which shall be payable by the Client at cost plus a 10% administration fee and 15% in the case of RigPro ERS Services;

Force Majeure Event has the meaning given in clause 12;

Goods mean any goods, parts, consumables, equipment or other deliverables to be supplied by the Company to the Client;

Intellectual Property Rights mean patents, trademarks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trademarks and service marks, copyrights, know-how, rights in designs and inventions, rights in databases and any other rights of the same or similar effect or nature, in each case in any jurisdiction;

Price means the price set out in the Scope of Work, subject to adjustment in accordance with clause 8;

Quotation means any quotation or price estimate given by the Company for Services and/or Goods to be supplied and shall represent a budgetary estimate only. In any communications in connection with a Quotation, use of the term Estimate shall have the same meaning;

RigPro ERS means the Company’s emergency response subscription service which provides 24/7 access to RigPro technical advice and assistance;

RigPro ERS Subscription means a subscription to RigPro ERS;

RigPro ERS Services mean emergency services provided by the Company as part of the RigPro ERS;

Sales Agreement means any agreement between the Company and the Client for the provision of Services and/or Goods incorporating these Conditions and the Scope of Work;

Scope of Work or Scope of Services means the description of the Services to be provided by the Company which shall comprise in final and agreed form the Scope of Work or Quotation submitted by the Company to the Client and which may be delivered to the Client by email.

Services mean the services to be provided by the Company to the Client as detailed in the Scope of Work or as part of the RigPro ERS Services, including, where applicable, the supply of Goods, as the same may be amended in accordance with clause 7;

Site means the Client’s designated premises, port or dock where the Services are to be carried out, as detailed in the Scope of Work or otherwise notified by the Client to the Company;

VAT means value added tax or other EU or non-EU equivalent sales tax at the time of the relevant supply; and

Yacht means the yacht(s) detailed in the Scope of Work or as designated as part of the RigPro ERS Subscription in respect of which the Company will provide the Services.

1.2 In these Conditions:

1.2.1 headings are for identification and indexing purposes only and shall not affect the construction or interpretation of these Conditions;

1.2.2 words importing the singular shall include the plural and vice versa;

1.2.3 references to a person shall include natural persons, corporate or unincorporated bodies (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns and references to a party shall mean either the Company or the Client as the context requires and parties shall mean both of them;

1.2.4 the words include, includes, including, for example and in particular will be construed without limitation unless inconsistent with the context.

1.2.5 working days are all days other than Saturdays, Sundays and public holidays in the place of performance of the Services; and

1.2.6 tax shall be construed so as to include any tax, levy, impost, duty, deduction, withholding or other charge of whatever nature (present or future) levied by or on behalf of any local, municipal, governmental, state, federal or other fiscal, revenue, customs or excise agency, authority, body or official anywhere in the world including HM Revenue & Customs (including any penalty or interest payable in connection therewith or with respect thereto), and shall include VAT.

 

2. APPLICATION

2.1 These Conditions shall govern and be incorporated into every Sales Agreement for the provision of Services and the supply of Goods made by or on behalf of the Company (including Goods supplied in the course of providing the Services). They shall apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Client, in correspondence or elsewhere, or implied by trade, custom, practice or course of dealing.

2.2 Acceptance by the Client of the provision of the Services and/or the supply of the Goods shall be deemed to constitute unqualified acceptance of these Conditions.

2.3 A variation of these Conditions is valid only in writing and signed by a director or authorised representative of the Company.

2.4 The Company may provide the Services, supply the Goods and perform any of its obligations or exercise any of its rights under the Sales Agreement itself or by any member of the Company’s Group. Each of the terms, conditions and warranties for the benefit of the Company contained herein shall benefit each such member of the Company’s Group. The limitations and exclusions of liability contained herein shall apply to any claims brought against the Company and/or any member of the Company’s Group and the involvement of one or more member(s) of the Company’s Group shall not give rise to any increase in, or multiplication of any limitation placed upon, the Company’s liability.

2.5 The Client shall ensure that all persons dealing with the Company in relation to the Sales Agreement have authority to do so, and the Company shall be entitled to treat all of the Client’s Personnel as authorised representatives of the Client who shall be entitled to bind the Client in relation to the Sales Agreement and any information or instructions issued by the Client’s Personnel shall be treated as if issued by the Client. Whilst on board the Yacht, or at the Site, the Client shall ensure that there is an authorised representative of the Client available to discuss the Services or the supply of Goods with the Company.

 

3. PROVISION OF SERVICES

3.1 A Quotation shall remain valid for a period of thirty (30) days from its issue date, subject to the right on the part of the Company to give written notice to the Client of its intention to revise or withdraw the same during such period. A Quotation shall be legally binding only if (i) it includes or incorporates a Scope of Work and (ii) is confirmed as being in final and agreed form by the Company and the Client. Quotations are given exclusive of VAT or any other tax and Disbursements and are subject to approval of the Client’s creditworthiness.

3.2 The Client shall ensure that the terms of any Sales Agreement and/or Scope of Work are complete and accurate and suitable for its own requirements. The Client shall provide the Company with complete and accurate information in order for the Company to issue a Quotation.

3.3 The Company will provide the Services to the Client:

3.3.1 in accordance with the Scope of Work; and

3.3.2 in relation to RigPro ERS Services, in accordance with clause 5; and in each case as may be amended or otherwise agreed in accordance with clause 7.

3.4 Subject to clause 3.4, the Services will begin on or about the estimated start date set out in the Sales Agreement, subject to agreement between the Client and Company of the Conditions and will continue until the provision of the Services is complete, unless otherwise terminated in accordance with clause 13.

3.5 Where the Services comprise RigPro ERS Services, the RigPro ERS Subscription will continue for the subscription period defined in the ERS Agreement and the RigPro ERS Services will be provided as soon as is reasonably possible in accordance with the terms of the RigPro ERS agreement.

3.6 Whilst the Company will use reasonable endeavours to meet any milestone dates or estimated timescale set out in the Sales Agreement, (to include but not limited to the estimated start date) such dates are approximate only, and time of performance is not of the essence of any Sales Agreement. The Company shall not be liable for any costs or losses incurred by the Client as a result of the Services not being carried out, or Goods not being delivered or installed, on any particular date(s).

3.7 Any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director or authorised representative of the Company. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Sales Agreement.

3.8 The Company will notify the Client when the Services are completed and/or the Goods and/or Deliverables are delivered. The Client will have [five (5) days] to inspect the Services, Goods and/or Deliverables and notify the Company of any problem, after which time the Services, Goods and/or Deliverables will be deemed to have been accepted by the Client.

3.9 The Company shall be entitled to provide the Services and/or supply the Goods and/or Deliverables in instalments whereupon each instalment shall be treated as an entirely separate contract and any default or breach by the Company in respect of any such instalment shall not entitle the Client to cancel any other instalment or treat the Sales Agreement as a whole as repudiated.

3.10 Goods, Services and Deliverables are provided for the benefit of the Client only and not for the benefit of any other persons. Save as set out in these Conditions, or expressly agreed with the Client, the Company accepts no liability or responsibility to any third party which may use the Goods or Services, or for any reliance by any third party on any Deliverables. The Client shall treat Deliverables as Confidential Information for the sole benefit of the Client and shall not disclose them to any third parties or allow any third party to make use of them without the Company’s prior written consent. All Intellectual Property Rights in the Deliverables shall belong to the Company.

 

4. SUPPLY OF GOODS

4.1 The risk in any Goods shall pass to the Client upon leaving the Company’s premises and thereafter the cost of transportation, installation and insurances for the Goods shall be borne by the Client.

4.2 The title to the Goods shall not pass to the Client until the Company receives payment in full for the Goods and Services. If, before title to the Goods passes to the Client, the Client becomes subject to any of the events listed in clause 13.1 then, without limiting any other right or remedy it may have, the Company may require the Client to deliver up all Goods in its possession and/or allow the Company to board the Yacht, enter the Site or other premises where the Goods are stored in order to recover them.

4.3 The Client shall inspect the Goods on delivery and if the Goods are damaged or otherwise not in compliance with the Sales Agreement on delivery, unless the Client notifies the Company and the carrier within 2 (two) days of delivery, no claim against the Company may be made in respect of any damage to or short delivery of such Goods. Notwithstanding the foregoing, the Client shall be deemed to accept the Goods on delivery notwithstanding any late delivery by the Company.

4.4 The Company may arrange for any packing, transportation and delivery of Goods at the Client’s request. If the Company agrees to provide the same to the Client, the Client shall pay all packing, transportation, delivery, insurance costs, customs duties and any other taxes which shall be treated as a disbursement in addition to the Price. The Company shall select the most appropriate form of transportation in its discretion.

 

5. EMERGENCY RESPONSE SERVICES

5.1 This clause only applies to RigPro ERS Subscriptions.

5.2 The RigPro ERS Service is a subscription service and is only available to subscribers of the service. The RigPro ERS Service shall be available to the Client for an annual subscription fee which may be waived at the Company’s discretion.

5.3 The Client acknowledges and agrees that by requesting RigPro ERS Services:

5.3.1 the Company will use reasonable endeavours to inform the Client in advance of carrying out any RigPro ERS Services, however the Company is authorised to do whatever is required to provide the necessary RigPro ERS Services within the fastest response time without the Client’s prior approval of the specific nature of the services;

5.3.2 RigPro ERS Services will be charged on a time and material basis in accordance with the Company’s then current rates for RigPro ERS Services as follows:

5.3.2.1 time is charged by the hour (rounded up to the next full hour), at the rate of one and a half times (x1.5) the standard rate at the time the RigPro ERS Services are requested;

5.3.2.2 Goods are charged at two times (x2) their cost; and

5.3.2.3 Disbursements are charged at cost plus fifteen per cent (15%) as a contribution to any additional travel arrangements or administrative costs;

5.3.3 the Company may use what it deems to be the fastest means of transport;

5.3.4 any Goods and Services provided as part of RigPro ERS are not covered by the warranty set out in clause 10;

5.3.5 RigPro ERS Services will not be used for warranty issues which are covered by clause 10 of these Conditions; and

5.3.6 RigPro ERS Services exclude non-technical issues including shipping, logistic and payment issues.

5.3.7 The Company may terminate the RigPro ERS Subscription in writing on seven (7) days’ notice in which case a pro-rata refund of the annual subscription fee shall apply.

 

6. CLIENT’S OBLIGATIONS

6.1 To enable the Company to perform its obligations under the Sales Agreement, the Client shall (and where applicable, shall procure that the Client’s Personnel shall):

6.1.1 co-operate fully with the Company and provide the Company and the Company’s Personnel with any information that they reasonably require;

6.1.2 provide the Company and the Company’s Personnel with access to the Yacht, the Client’s premises and equipment and the Site (including such facilities on Site as are reasonably required by the Company and the Company’s Personnel to deliver the Services);

6.1.3 provide the Company and the Company’s Personnel with copies of any health and safety, security or other policies and procedures with which the Company and the Company’s Personnel are required to comply whilst on Site;

6.1.4 obtain all the necessary licences, permissions and consents which may be required before commencement of the Services;

6.1.5 keep all documents, equipment, materials and other Company property on the Yacht and/or Site safely and at its own risk and in the same condition as when supplied and not dispose of or use any of the same without the Company’s prior written agreement; and

6.1.6 notify the Company as soon as possible in respect of any issues which may prevent or cause a delay to the Company’s performance of the Services.

6.2 The Client shall provide the Company with complete, accurate and suitable information and instructions regarding the nature of its requirements for the Services.

6.3 If the Company’s performance of its obligations under the Sales Agreement is prevented or delayed by any act or omission of the Client or the Client’s Personnel including any breach of its obligations under this clause 6 or any delay in providing access to the Yacht, or otherwise, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay and the Company shall be entitled to recover from the Client any costs or expenses of whatever nature incurred by the Company as a result of any such prevention or delay. The Client acknowledges and agrees that any estimated delivery or performance date will be adjusted accordingly.

 

7. INSPECTION AND CHANGES TO THE SERVICES

7.1 During the provision of the Services and in particular once the Company has had the opportunity to inspect the condition of the Yacht, the Company may recommend and/or the Client may request changes or additions to the Services. In these circumstances, any changes or additions to the Services will be agreed in writing between the parties, such agreement not to be unreasonably withheld or delayed.

7.2 The Company reserves the right to amend any Quotation and/or Scope of Work in the event that on a full inspection of the Yacht, the Services and/or Goods required differ to those previously identified and/or as advised by the Client, or if the circumstances or instructions have otherwise changed.

7.3 The Company shall advise the Client of any change to the Price and the timescale for the provision of the Services following any changes to the Scope of Work or the inclusion of any additional Services, and any other terms and conditions particular to the provision of such changed or additional Services. If these are agreed, the additional services shall be deemed to be included in the definition of Services and shall be provided in all other respects in accordance with these Conditions.

7.4 The Company may make any changes to the Services: (i) needed to comply with applicable law or safety requirements; or (ii) which do not materially affect the nature or quality of the Services.

 

8. PRICE

8.1 The Price is exclusive of all Disbursements and taxes which the Client shall pay in addition to the Price.

8.2 The Company may at any time prior to the provision of the Services review, and if necessary adjust, the Price to take account of any increase or decrease to its costs in providing the Services or supplying the Goods or withdraw any discount and/or revise prices to take account of inflation, increases in costs including costs of any goods, materials, carriage, labour or overheads and the increase or imposition of any tax, duty or other levy.

8.3 Where the Price includes the re-charge of parts or equipment or other goods which the Company sources from a third-party company, the Client shall bear the cost of any increase to the same between the date of the Sales Agreement and the date when the Company actually pays the third party for such parts or equipment or other goods.

8.4 The Company shall be entitled to charge the Client for any charges including Disbursements outside the Price stated on the Quotation, in respect of any: (i) Goods and/or Services additional to those set out in the Scope of Work; and (ii) Services which have been based on assumptions set out in the Scope of Work, or otherwise agreed with the Client, or based on information provided by the Client (for example, the condition of the Yacht), which are subsequently found to be incorrect. Such Services will be based on the Company’s standard rates applicable at the time.

8.5 The Company may revise its rates for the provision of the Services and the RigPro ERS rates from time to time.

 

9. TERMS OF PAYMENT

9.1 Unless agreed otherwise and confirmed in the Scope of Work, the Client shall pay to the Company a deposit of 50% of the Price detailed in the Scope of Work at the time of the order, and the balance shall be payable by the Client on or before the provision of the Services or delivery of the Goods (as applicable). If the Company agrees to payment terms which are different to those set out in this clause 9.1, payment shall be made in accordance with the agreed terms at the agreed intervals.

9.2 Payment of the Price for the Services and for Disbursements shall be made in EUROs, unless otherwise agreed in writing by the Company, and shall be payable in full by the due date for payment specified in the Scope of Work, or, if not so specified, within thirty (30) days of the date of the Company’s invoice. Time of payment is of the essence of the Sales Agreement.

9.3 No payment shall be deemed to have been received until the Company has received cleared funds.

9.4 The Client shall make all payments due under the Sales Agreement in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.

9.5 The Company shall be entitled to issue invoices (in the form of a deposit, stage payment, final payment or combined payment) from any of its agents, members of the Company’s Group or subcontractors, where necessary.

9.6 Notwithstanding any other provisions of the Sales Agreement, all payments payable to the Company under the Sales Agreement shall become due immediately on its termination for whatever reason.

9.7 In the event that the Client fails to pay any amount due to the Company under the Sales Agreement by the due date the Company reserves the right: (i) to suspend provision of the Services; and/or (ii) to claim interest at the rate of five per cent. (5%)] above the EURIBOR three-month rate accruing on a daily basis to run from the due date for payment until receipt by the Company of the full amount (including any accrued interest) whether before or after any judgment, or such other index as the Company deems appropriate.

9.8 Any extension of credit allowed to the Client may be changed or withdrawn at any time.

9.9 If, in the opinion of the Company, the credit-worthiness of the Client deteriorates before the provision of the Services, the Company may require full or partial payment of the Price prior to commencing the Services or the provision of security for payment by the Client in a form acceptable to the Company.

 

10. LIMITED WARRANTY

10.1 The Company warrants that the Services will be performed by appropriately qualified and experienced personnel with reasonable care and skill, and that the Goods will be supplied free of defects, in each case in accordance with the Scope of Work, and as amended in accordance with clause 7, provided that:

10.1.1 the Company shall be under no liability in respect of any defects arising from fair wear and tear, perils of the sea, corrosion, ultraviolet degradation, wilful damage or negligence caused by the Client or the Client’s Personnel or guests of the Client using the Yacht, use of the Yacht in conditions that exceeds its tolerances and/or specification, failure to follow the Company’s instructions or any operating instructions provided by the Company, misuse or adjustment or alteration or repair of the Goods or Services without the Company’s prior written approval;

10.1.2 the Company shall be under no liability in respect of any defects caused by or occurring whilst the Yacht is racing, trialling or preparing for a race;

10.1.3 the Company shall be under no liability in respect of any defects caused by works carried out by the Client or by the Client’s Personnel or the Company’s Personnel when acting under the instructions of the Client’s Personnel;

10.1.4 the Company shall be under no liability in respect of any defects if the total Price for the Services and/or Goods has not been paid in full by the due date for payment, or if the Client fails to notify the Company in writing and in detail of any defect within the period specified in clause 3.8 or, if the defect would not have been apparent on reasonable inspection before acceptance of the Services or Goods, within five (5) days of its discovery;

10.1.5 where the Goods are subject to a warranty provided by a third party (manufacturer or supplier), the Company’s liability in respect of any defects shall in no circumstances exceed the scope, value or extent of the aforesaid third-party warranty; and

10.1.6 no warranty is given in respect of RigPro ERS Services.

10.2 The Price and all other sums payable in respect of the Goods and Services shall remain due and payable by the Client notwithstanding that the Yacht may be under warranty from the Yacht’s builder, supplier or any other third party. Save in the event of prior written agreement to the contrary, the Client shall under no circumstance be entitled to require the Company to seek payment of its invoices from the aforesaid builder, supplier or other third party.

10.3 The warranty set out in clause 10.1 shall be valid for the warranty period referred to in the Sales Agreement but, if no warranty period is referred to therein, the warranty period shall be six (6) months for Services and twelve (12) months for Goods.

10.4 In the event of a valid claim by the Client under clause 10.1, the Company shall investigate the claim and if liability is accepted by the Company under clause 10.1, the Company’s only obligation shall be to re-perform the Services and to repair or (at its option) replace any defective Goods.

10.5 The Company may require the Client, at its cost, to return any Goods to the Company for the Company to inspect and investigate any warranty claim.

10.6 All repair and replacement work shall be carried out by the Company during normal working hours at the Company’s site or premises. If the Yacht cannot reasonably be brought to the Company’s site or premises, the work will be carried out at an alternative site nominated by the Client and approved by the Company, such approval not to be unreasonably withheld, provided that all reasonably incurred Disbursements shall be for the Client’s account.

10.7 The Company shall not be responsible for shipping charges or for costs incurred in moving the Yacht to the place nominated for the warranty works.

10.8 The Company’s liability to the Client in respect of warranty claims shall under no circumstances exceed the Price for the Services and/or Goods.

10.9 Following acceptance by the Client of the Services and/or Goods, the Company shall be free of any and all liability for the same, except only for its limited warranty liability under this clause 10.

 

11. LIMITATION OF LIABILITY

11.1 Without prejudice to clause 10, the Company’s aggregate liability to the Client under the Sales Agreement whether for negligence, breach of contract, breach of statutory duty, misrepresentation, restitution or otherwise shall in no circumstance exceed the lesser of (i) the total Price of the Goods and Services under the Sales Agreement; and (ii) € 500,000.

11.2 All conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods and/or Services are limited or excluded to the fullest extent permitted by law, provided that nothing herein shall limit or exclude the Company’s liability for death or personal injury caused by the Company’s negligence, or for any matter for which it would be illegal for the Company to limit or exclude its liability or attempt to do so.

11.3 The Company shall not be liable for any indirect, special or consequential loss, pure economic loss, loss of profits, loss of use or enjoyment, loss of goodwill or reputation, or loss of business or management time; in each case howsoever caused.

11.4 For the avoidance of doubt, the Company shall not be liable for the acts or omissions of third parties including without limitation transport and shipping companies, shipping and fiscal agents, customs and import agents, employees of ports and marinas, and the classification society, flag state or other regulatory bodies; nor shall the Company have any liability in respect of any drawings, calculations or other technical information used in connection with or in relation to the supply or provision of the Goods or Services or the Yacht generally, whether provided by the Client or others on its behalf or by third parties.

11.5 The time limit for any and all claims against the Company under or in connection with the Sales Agreement (whether in contract, tort or otherwise) shall be a period of twelve (12) months from the delivery of the Goods and Services to the Client; all purported claims made after this time shall be deemed to have been waived by the Client absolutely.

 

12. FORCE MAJEURE

12.1 If the Company is prevented, hindered or delayed from or in providing the Services in accordance with these Conditions by an event which is beyond the Company’s reasonable control including acts of terrorism, insurrection, riots, civil unrest and military action, the exercise of emergency powers by any local, regional or national governmental authority, fire, flood, earthquake, storm and other natural disasters, industrial action, strikes and lock-outs, blockage or embargo or the failure or delay of supplies of power, fuel, transport, equipment, telecommunications systems, internet or other goods and/or services (including any third party materials) or the acts or omissions of or delays of, or affecting the performance of, subcontractors or suppliers (a Force Majeure Event) the Company shall not be liable in respect of any loss, damage or delay caused or arising therefrom, but may, at its option: (i) suspend the provision of the Services while the Force Majeure Event continues; (ii) if the Company has insufficient capacity and/or resources to meet its commitments, apportion its available capacity and resources; or (iii) terminate the Sales Agreement with immediate effect by written notice to the Client, and the Company will not be liable for any loss or damage suffered by the Client as a result of such termination.

 

13.  TERMINATION

13.1.  The Company may terminate the Sales Agreement with immediate effect by notice to the Client:

13.1.1  if the Client is in material breach of any obligation under the Sales Agreement and, if the breach is capable of remedy, the Client fails to remedy such breach within a period of thirty (30) days after being given notice by the Company thereof;

13.1.2 in accordance with the provisions of clause 12;

13.1.3 if the Client is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or suffers any event which could reasonably be considered to indicate that it is insolvent or at serious risk of becoming so in the relatively near future including insolvent liquidation, a declaration of bankruptcy, the presentation of a bankruptcy or a winding up petition which is not withdrawn, dismissed or discharged within thirty (30) days of its presentation or the appointment of an administrator, receiver or similar over any of its assets or undertakings or the directors give notice of the intention to appoint an administrator or ceases or threatens to cease to carry on business, or an analogous event occurs in any jurisdiction; and

13.1.4 if the Client fails to pay by the due date any sum due and payable to the Company and such non-payment continues for more than five (5) working days following notification by the Company.

14. CONSEQUENCES OF TERMINATION OR EXPIRY

14.1 Upon the termination or expiry of this Agreement for any reason:

14.1.1 the Company shall be entitled to invoice the Client for all Services provided (including any Goods delivered to the Client or ordered by the Company for supply to the Client and any work in progress) as at the date of termination or expiry and the Client shall pay such invoices and any other outstanding invoice within five (5) working days of the date of termination or expiry;

14.1.2 the Company shall be entitled to access the Yacht to remove any of its equipment or other property and shall be entitled to seize or retain any Goods for which it has not received payment; and

14.1.3 each party shall within five (5) working days from receipt of a request by the other party return to the other party all original and copy documentation containing Confidential Information of the other party.

14.1.4 Termination of the Sales Agreement shall be without prejudice to the accrued rights and liabilities of the parties and shall not affect any continuing obligations of the parties under the Sales Agreement. Without prejudice to that generality, the provisions of clauses 8, 9, 11, 15, 16, 19 and 20 shall survive the termination or expiry of the Sales Agreement for any reason.

15. CONFIDENTIAL INFORMATION

15.1 Each party (the Receiving Party) shall treat any Confidential Information relating to the other party (the Disclosing Party) as strictly confidential except to the extent that such Confidential Information can be proved to be within the public domain at the time of disclosure other than as a result of any breach of these Conditions. The Receiving Party shall not disclose such Confidential Information to any third party nor use it for any purpose except as is strictly necessary for the performance of its obligations under the Sales Agreement. For the purpose of these Conditions, Confidential Information means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by the disclosing Party to the Receiving Party or otherwise acquired by the Receiving Party in connection with these Conditions or its subject- matter whether before or after the commencement of the Sales Agreement including information relating to the Disclosing Party’s products, operations, processes, plans or intentions, product information, know-how, trade secrets and other Intellectual Property Rights, market opportunities, business affairs, financial information and other confidential information.

16. INTELLECTUAL PROPERTY RIGHTS

16.1 All right, title and interest in and to any Intellectual Property Rights created by or on behalf of the Company during the provision of the Services and all renewals and extensions thereof shall be the property of and vest in the Company (unless otherwise agreed in writing), and the Client assigns, including by way of present assignment of future rights, such Intellectual Property Rights to the Company with full title guarantee and free from all encumbrances and other rights of whatever nature exercisable by any third party, together with the right to take action for any past, present and future damages and other remedies in respect of any infringement or alleged infringement of such Intellectual Property Rights. The Client waives any moral rights in relation to the Intellectual Property Rights.

16.2 All right, title and interest in and to any Intellectual Property Rights owned by or licensed to either party prior to the Sales Agreement shall be and remain the exclusive property of the party owning it (or, where applicable, the third party from whom its right to use such Intellectual Property Rights has derived).

 

17. SUB-CONTRACTING

17.1 The Company shall be entitled to subcontract the performance of its obligations under the Sales Agreement to experienced and competent subcontractors. No subcontracting by the Company shall in any way relieve it of its obligations under the Sales Agreement.

18. NOTICES

18.1 Any notice under or in connection with the Sales Agreement shall be in writing and shall be delivered personally or sent by recorded or registered delivery post or sent by email to the other party at its last known address.

18.2 In the absence of evidence of earlier receipt, service of a notice is deemed to have been effected as follows:

18.2.1 if delivered personally, when left at the address referred to in clause 18;

18.2.2 if sent by recorded or registered delivery post, five working days after posting it (excluding the day of posting); or

18.2.3 if sent by email on a working day before 17:00 hrs. local time at the place of receipt, on the same working day but otherwise on the next working day.

 

19. NON-SOLICITATION

19.1 The Client shall not, without the prior written consent of the Company, at any time from the date of the Sales Agreement until the expiry of twelve (12) months after the last date of provision of the Services, solicit or entice away from the Company or employ (or attempt to employ) any person who is, or has been, engaged as part of the Company’s Personnel.

 

20. GENERAL

20.1 The Company and any members of the Company’s Group shall be entitled to publish, promote and/or advertise its association with the Client pursuant to the Sales Agreement and the supply of Goods and Services to the Client and the Company may refer to the Client’s name(s) and logo(s) for this purpose.

20.2 Unless otherwise stated in these Conditions, the Sales Agreement (and any documents referred to in it) constitutes the entire understanding between the parties in relation to its subject-matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of the Sales Agreement. Neither party has relied on any warranty or representation except as expressly set out in the Sales Agreement.

20.3 The Client may not assign nor transfer or purport to assign or transfer any of its rights or obligations under the Sales Agreement without first having obtained the Company’s written consent.

20.4 If any provision of the Sales Agreement or part of a provision is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision of the Sales Agreement would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20.5 Subject to clause 2.4, nothing in the Sales Agreement is intended to confer on any person any right to enforce any provision of the Sales Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.

20.6 The failure by the Company to exercise or delay by the Company in exercising any right, power or remedy provided by the Sales Agreement or by law does not constitute a waiver of such right, power or remedy or a waiver of any other rights, powers or remedies. No single or partial exercise of a right, power or remedy provided by the Sales Agreement shall prevent any further exercise of the right, power or remedy or the exercise of another right, power or remedy.

20.7 Each right or remedy of the Company under the Sales Agreement is without prejudice to any other right or remedy of the Company whether under the Sales Agreement or otherwise.

20. 8 The Sales Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed originals.

 

21. GOVERNING LAW AND JURISDICTION

21.1 The Sales Agreement shall be governed and construed in accordance with the laws of England and Wales.

21.2 All disputes arising under or in connection with the Sales Agreement which are not be settled by negotiation between the parties will be submitted to, and settled by, binding arbitration in London in accordance with the Arbitration Act 1996 (or any re-enactment or modification for the time being in force) and the rules then in force of the London Maritime Arbitrators’ Association.