STANDARD TERMS AND CONDITIONS FOR BRAEMAR VALUATIONS LIMITED
These Conditions (as defined below) confirm the terms of business that govern the contractual relationship between the Client and the Company. If there is no Evaluations Agreement (as defined below) you will be deemed to accept them on each occasion you use the Services of the Company.
These Conditions shall be effective from 13 October 2022 and from that date replace and supersede any previous versions.
The Client’s attention is particularly drawn to the provisions of clause 9 which contains provisions which exclude or limit the Company’s liability.
1.1. In these Conditions, the following definitions apply:
Applicable Laws means all and any laws, regulations, ordinances, directions or directives issued by any government or regulatory body which apply to or could apply to the Services and including, without prejudice to the forgoing, any sanctions imposed or agreed by the United Kingdom, United Nations, the European Union or the United States of America and laws relating to money laundering, anti-bribery and corruption (including but not limited to the UK Bribery Act 2010).
Client means the person or firm at whose request, or on whose behalf, the Company shall perform the Services (as set out in the Evaluations Agreement, if any).
Company means Braemar Valuations Limited, a company incorporated in England under company number 03439765.
Conditions means these terms and conditions as amended from time to time in accordance with clause 22.1.
Contract has the meaning given to it in clause 2.
Data Protection Legislation means the General Data Protection Regulation ((EU) 2016/679) and all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU version of the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018 and any successor legislation.
Disbursements means the cost of all reasonable incidental expenses incurred by the Company in connection with the Contract.
Evaluations Agreement has the meaning given to it in clause 2.
Fees means the fees payable by the Client for the supply of the Services in accordance with clause 6.
Services means the services referred to in clause 2 of these Conditions.
Ship means any type of ship, other vessel and/or equipment used or intended to be used for any purpose on, in or over water including but not limited to rigs, jack ups, submersibles and barges.
Valuation Certificate means any certificate, valuation, report, advice or written statement supplied by the Company in the performance of the Services.
1.2 Unless the context otherwise requires, each reference in these Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means including without limitation e-mail, WhatsApp, and SMS messaging;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 a clause or paragraph is a reference to a clause of these Conditions;
1.2.4 references to “controller”, “processor”, “data subject”, “personal data”, “personal data breach” and “processing” shall have the meanings given to them under the Data Protection Legislation; and
1.2.5 a “Party” or the “Parties” refer to the parties to the Contract.
1.3 The headings used in these Conditions are for convenience only and shall have no effect upon the interpretation of these Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
2. The Services
2.1 Unless otherwise agreed in writing, the Company will carry out Ship valuations for the Client as set out in these Conditions or in the Evaluations Agreement.
2.2 Unless specifically agreed in writing, the Services will comprise desktop valuations based on certain common assumptions: (i) the Ship is in good and seaworthy condition; (ii) the Ship will be delivered free from all debts, encumbrances and liens; (iii) the Ship will be available for prompt delivery and (iv) the transaction is performed by a willing seller and a willing buyer for cash payment under normal commercial terms; and the valuations will be carried out without analysing the full specifications or classification records of the Ship. When valuing Ship/s the Company will consider a number of factors (including but not limited to) market comparable transactions, current charter market and future chartering forecasts, current market sentiment which takes into account other similar Ships on the market, their owners’ ideas and offers and negotiations that have been tabled or are underway, as well as price estimates and market knowledge from brokers, Ship/s specification, yard build and main engine types.
2.3 These Conditions together with: (i) the Evaluations Agreement (if any) and/or any additional scope of work or similar document set out in writing by the Company and agreed by the Client; and (ii) any amendments or supplements to any of the foregoing agreed from time to time in writing, will constitute the entire agreement relating to the Services (together, the “Contract”). In the event of any conflict or inconsistency between the documents comprising the Contract, the documents set out in clause 2.2(i) shall take priority over these Conditions, in each case as supplement and/or amended as envisaged in clause 2.2(ii).
2.4 The Company will perform the Services with the reasonable skill and care expected from a person of comparable size and resources to the Company carrying out substantially similar services under substantially similar conditions.
2.5 The Company will be entitled to act upon the instructions of any of the Client’s authorised employees, affiliates or agents and rely upon any information supplied by the Client in connection with the Services.
2.6 The Services shall be performed by the Company for the benefit of the Client only. The Company does not accept any responsibility or liability to any third party for the Services performed for the benefit of the Client unless the Company has expressly agreed otherwise in writing.
2.7 The Company’s performance of the Services is dependent on the Client, its employees, affiliates and/or agents providing the Company with the requested information.
2.8 The Company shall not be liable for any delays incurred in performance of the Services due to items including but not limited to late provision or access to information, or any errors or omissions in the information provided.
2.9 The Client acknowledges that where data and/or information is incomplete, the Company shall necessarily have to use its skill and judgement in making reasonable assumptions in order to perform the Services.
2.10 Any timetable or dates specified by the Company and agreed by the Parties for the performance of the Services is necessarily an estimate only and is not guaranteed, unless otherwise agreed by the Company in writing. Accordingly, whilst the Company will use reasonable efforts to comply with such dates, the Client will have no right to terminate the Contract for any failure to meet these dates and acknowledge that the Company’s performance is entirely dependent on the Client complying with its responsibilities as set out in the Contract.
3. Valuation Certificate
3.1 Any Valuation Certificate issued to the Client shall be for the Client’s benefit only and shall not be disclosed to any third party without the express written consent of the Company. Any disclosure of a Valuation Certificate to a third party shall be strictly subject to the Client or any such third party complying with any additional requirements of the Company in respect of such disclosure. The Client may request that a Valuation Certificate be addressed to a third party, subject to: (i) the Client providing the Company with any information it may request in relation to such third party, (ii) to the Client indemnifying the Company against all claims losses or damages whatsoever caused directly or indirectly by the Company complying with such request and (iii) such third party signing a non-reliance letter in such form as requested by the Company.
3.2 Reliance should only be placed on information and comments set out in the Company’s final written Valuation Certificate(s) produced pursuant to the Services. The Company has no responsibility to update its Valuation Certificate(s) for events that take place after the final Valuation Certificate(s) have been issued.
3.3 In the event that any Valuation Certificate or other documentation or information generated by the Company in accordance with the Agreement or the performance of the Services is amended by the Client and/or disclosed to any other individual or company (including but not limited to any of the Client’s subsidiaries or affiliates), other than where there is an obligation to disclose the same in legal proceedings, the Client will indemnify the Company against all claims losses or damages whatsoever caused directly or indirectly by any such amendment or disclosure.
3.4 Once the Company and the Client have agreed what Services are to be performed, any subsequent variations to the Services must be promptly agreed in writing between the Parties, specifying any variation to the agreed work scope, delivery date and/or the deliverables as well as any additional costs involved.
4. Client’s Obligations
4.1 The Client is solely responsible for determining whether the Services are sufficient for its requirements.
4.2 The Client undertakes in sufficient time to enable the Services to be performed effectively and efficiently to:
4.2.1 ensure that all information which is or hereafter becomes available to it which is relevant to the performance of the Services is supplied to the Company;
4.2.2 if required by the Company, procure all necessary access for the Company’s staff to goods, premises, vessels, installations and transport; and
4.2.3 ensure that all appropriate safety measures are taken to provide safe and secure working conditions.
4.3 If the Client becomes aware of any claim or circumstances which might involve litigation or arbitration concerning or connected with the subject matter of the Agreement, the Client shall inform the Company immediately.
5. Data Protection
5.1 In providing, receiving, or requesting the Services, each Party may be required to provide the other Party with certain personal data and, in such event, each Party shall comply (and assist the other in complying) with the obligations imposed under the Data Protection Legislation in connection with such personal data. Each Party will be a data controller of the personal data supplied by the other Party, but in no event will the Parties be joint controllers. Each Party undertakes that (i) it is lawfully entitled to disclose any personal data; (ii) any data subject whose personal data it is providing under this Contract is aware of the use of such data; (iii) it will lawfully use personal data provided to it for the purposes of performing their obligations under the Contract, administering the relationship between the Parties and, in the case of the Company, disclosing it to any of its Affiliates for sales and marketing purposes; and (iv) it will have in place appropriate technical and organisational measures to protect the security, confidentiality and integrity of any personal data supplied.
6. Fees and Payment
6.1 The Client shall pay the Fees in accordance with the terms of this clause 6. The Fees payable shall be communicated in writing to the Client and based on the Services to be performed.
6.2 Any fee estimates provided shall not be binding and shall be issued in good faith on the basis of the information provided by the Client at the time of providing the estimates.
6.3 If practical, the Company may agree at the outset a fixed fee (net of VAT and Disbursements) with the Client.
6.4 Where it is necessary to extend the Services beyond the time specified or originally anticipated for reasons beyond the Company’s control, then the cost of the Services charged to the Client may be increased at the appropriate fee rate.
6.5 The Client shall pay each invoice submitted by the Company:
6.5.1 within 30 days of the date of the invoice;
6.5.2 in full and in cleared funds to a bank account nominated in writing by the Company, and
6.5.3 time for payment shall be of the essence of the Contract.
6.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.7 Without prejudice to any other rights and remedies of the Company, if the Company does not receive any payment due under the Contract, interest shall accrue on a daily basis on the overdue amount at an annual rate equal to 3 per cent over the then current base lending rate of HSBC UK Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment, and compounding quarterly.
6.8 The Client shall pay all amounts due under the Contract in full without any deduction or withholding and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
6.9 The Company has a general lien on all documents in its possession, custody or control for all sums due at any time to the Company from the Client on any account whatsoever.
6.10 If the Fees payable to the Company are recorded in an evaluation agreement or in a specific document included in the Contract, then the Fees will be payable in accordance with that clause or agreement.
7. Intellectual Property
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company and these Conditions do not grant any Intellectual Property Rights to the Client. The Client shall not be entitled to use, reproduce, copy or otherwise modify the Valuations Certificate without the prior written consent of the Company.
7.2 The Company shall retain ownership of all intellectual property in any Valuation Certificate or other deliverable produced as part of the Services, excluding all documents, information, items and materials in any form (whether owned by the Client or a third party), which are provided by the Client to the Company in order to carry out the Services (the “Client Materials”).
8.1 Each Party undertakes that, except as provided by the remainder of this clause 8, or as expressly authorised in writing by the other Party, it shall keep confidential all Confidential Information and not disclose any Confidential Information to any third party for any purpose other than the implementation of the Contract.
8.2 Either Party may disclose any Confidential Information to its Affiliates and any of their respective officers, employees, contractors or suppliers as is necessary for the purposes contemplated by the Contract, in connection with marketing or providing other services to the Client or its Affiliates, compliance or audit purposes, or as required by law.
8.3 The obligation in clause 8.1 shall not extend to any information which:
8.3.1 is or becomes public knowledge through no fault of a receiving Party;
8.3.2 was in the receiving Party’s lawful possession prior to the date of disclosure;
8.3.3 is lawfully disclosed to the receiving Party with no restrictions on disclosure;
8.3.4 is independently developed by the receiving Party; or
8.3.5 is required to be disclosed by law, regulation or any governmental or competent regulatory authority.
8.4 In all cases the obligation of confidentiality in this clause 8 shall be deemed to end two years after the end of performance of the Services.
8.5 If the parties have entered into a separate confidentiality or non-disclosure agreement regarding the Contract, the terms and conditions of such agreement shall apply regarding such disclosure to the exclusion of the terms of this clause 8.
8.6 Nothing in this clause 8 shall prevent the Company from using the Client’s name and logo for marketing purposes and the Client consents to such use for the purposes of the Company referring to current or previous clients.
9. Limitation and Exclusion of Liability
9.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
9.1.2 fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1:
9.2.1 the Company shall be relieved of liability for any loss or damage: (i) if, and to the extent that, such loss or damage is caused by any cause or event which the Company is unable to avoid, and the consequences of which the Company is unable to prevent by the exercise of reasonable diligence; and (ii) not solely caused by the act or omission of the Company or which would have occurred in any event;
9.2.2 the Company shall not be liable for: (i) any loss of profits, loss of or interruption to business; (ii) loss of reputation, depletion of goodwill; (iii) loss or corruption of data or information; (iv) pure economic loss; or (v) any special, indirect or consequential loss;
9.2.3 the Client shall not bring any claim of any kind against any of the Company’s officers, employees or consultants personally in relation to the performance of the Services or the Contract unless the claim arises from the illegal acts of such person (but this will not exclude or limit the liability of the Company for the acts or omissions of such person performed within the scope of their authority or contract for employment or services as the case may be); and
9.2.4 the total liability of the Company arising out of or in connection with the Contract or the Services shall in no circumstances exceed 5 times the actual Fees paid by the Client under the Contract.
9.3 The Client shall save, defend, hold harmless and keep the Company and its Affiliates indemnified from and against all liability, loss, damage, costs (including without limitation legal costs), expenses or claims whatsoever (including without limitation all duties, taxes, levies, fines, penalties or outlays of whatsoever nature levied by or owed any authority or any other third party) in excess of the maximum liability set out in clause 9.2.4.
9.4 The exclusions and/or limitations set out in this clause shall apply whether the claim against the Company is brought in contract, tort (including without limitation for negligence) breach of duty or for any other cause whatsoever and irrespective of any breach of contract, negligence, breach of duty or other failure of any kind of the Company or its respective employees, agents, consultants or sub-contractors.
9.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.6 Any claim by the Client against the Company arising out of or in connection with the Services shall be made in writing and notified to the Company within one month of the date upon which the Client became aware, or ought reasonably to have become aware, of any occurrence alleged to give rise to such claim. Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred. The Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of the Contract or the Services unless formal proceedings are brought and written notice thereof is given to the Company within one year from the date of the occurrence alleged to give rise to a cause of action against the Company.
9.7 The Company will be entitled to act upon the instructions of any of the Client’s Affiliates or any of its or their respective officers, employees, or agents and rely upon any information supplied by the Client or any of the foregoing in connection with the Services.
9.8 The Services shall be performed by the Company for the benefit of the Client only. The Company does not accept any responsibility or liability to any third party for the Services performed for the benefit of the Client, unless the Company has expressly agreed otherwise in writing.
10.1 The Client shall save harmless and keep the Company indemnified from and against:
10.1.1 all liability, loss, damage, costs, expenses, claims whatsoever (including, without prejudice to the generality of the foregoing, all duties, taxes, levies, fines, penalties or outlays of whatsoever nature levied by any authority in relation to the Services) arising out of the Company acting in accordance with the Client’s instructions, or arising from any breach by the Client of any warranty or obligation contained in these Conditions, or from negligence of the Client; and
10.1.2 without derogation from clause 10.1.1, any liability assumed or incurred by the Company when, by reason of carrying out the Client’s instructions, the Company has become liable to any other party.
11. Applicable Laws and Anti-Bribery
11.1 The Client shall:
11.1.1 comply with Applicable Laws;
11.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
11.1.3 promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Client in connection with the performance of the Services.
11.2 The Client shall not require the Company to perform the Services if there is any possibility that in doing so the Company may contravene any Applicable Laws.
11.3 If, in the Company’s absolute discretion, the performance of the Services may infringe any Applicable Laws, the Company shall be entitled to suspend or cancel performance of the Services and in that event shall notify the Client. The Company shall not be liable to the Client for any consequences which result from the suspension or cancellation of the Services pursuant to this clause.
12.1 Without limiting its other rights or remedies, each Party may terminate the Contract with immediate effect by giving written notice to the other Party if the other Party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that Party being notified in writing of the breach.
12.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to (a) pay any amount due under this Contract on the due date for payment or (b) comply with its obligations under clause 11.1.
12.3 Without limiting its other rights or remedies, the Company may terminate this Agreement by written notice with immediate effect if in the Company’s reasonable opinion it would be likely to suffer damage to its reputation by continuing to act and/or be associated with the Client.
12.4 Without limiting its other rights or remedies, the Company shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and the Company if the Client is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if the Client is based in a jurisdiction other than England and Wales, an equivalent or similar provision of the law of that jurisdiction.
13. Consequences of termination
13.1 On termination of the Contract for any reason:
13.1.1 the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;
13.1.2 the Company shall be entitled to submit an invoice to the Client for immediate payment for all reasonable costs and/or expenses incurred by the Company as a result of the termination or cancellation;
13.1.3 the accrued rights, remedies, obligations and liabilities of the Parties as at termination shall not be affected, including without limitation the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
13.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect including without limitation clauses 8, 9, 10 and 21.
13.2 The Company shall not be liable to the Client for any consequences which result from the suspension, cancellation or termination of the Services pursuant to clauses 11.3 or 12.
14.1 The Company may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any and all of its rights under this agreement.
14.2 Except as provided for in the Contract, this agreement is personal to the Client and the Client shall not assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or in any other manner transfer to any third party any of its rights or obligations under the Contract without the prior written consent of the Company, such consent not to be unreasonably withheld.
15. Force Majeure
15.1 Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty days, the Party not affected may terminate the Contract by giving two weeks’ written notice to the affected Party.
16.1 Any notice or other communication required to be given to a Party under or in connection with this Contract shall be in writing and shall be (a) delivered to the other Party personally, or sent by prepaid first-class post, recorded delivery, or by commercial courier, at its registered office or such other address as the receiving Party may notify from time to time for such purposes, or (b) by e-mail to such address as the receiving Party may notify from time to time for such purposes.
16.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by e-mail, at the time of transmission (unless a delivery failure notice is received by the sender). If deemed receipt under this clause would occur on a public holiday or outside 9:00 am to 5:00 pm Monday to Friday in the place of receipt, the notice shall be deemed to have been received when such usual business hours next recommence.
16.3 This clause 16 shall not apply to the service of any proceedings or other documents in any legal action.
17.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.
17.2 No failure or delay by a Party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.1 The Parties agree that, in the event that one or more of the provisions of these Conditions is found to be unlawful, invalid or otherwise unenforceable, that provision shall, to the minimum extent required, be deemed severed from the remainder of these Conditions and the remainder of that and all other provisions of these Conditions shall remain valid and enforceable.
19. Third Parties
19.1 Unless it expressly states otherwise, these Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
20.1 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing by the Company. Notwithstanding the foregoing, the Company reserves the right to update these Conditions from time to time without the Client’s consent and such updated terms shall be deemed accepted by the Client continuing to use the Services. It is the Client’s sole responsibility to review these Conditions prior to using the Services.
21. Governing Law and Jurisdiction
21.1 The Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
21.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Contract or the Services (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.