Unless the context requires otherwise, the following expressions used in this Standard Terms and Conditions (hereinafter the ‘STC’) shall have the following meanings:
(a) ‘Affiliate’ shall mean other entity controlled by, under common control with, or controlling such entity, where ‘control’ means an entity’s (a) ownership, directly or indirectly, of equity securities entitling it to exercise in the aggregate at least 50% of the voting power of the entity in question; or (b) possession, directly or indirectly, of the power to direct or question; or (c) possession directly or indirectly, of the power to direct or cause the direction of the management and policies of or with respect to the entity in question, whether through ownership of securities, by contract or otherwise.
(b) ‘Agreement’ shall mean the agreement between the Company and the Client for the Services which comprises of any orders and instructions received and accepted by the Company and this STC.
(c) ‘Company’ shall mean CJA Marine Services Pte Ltd and/or CJA Marine Services (Thailand) Co., Ltd, any of its affiliated companies or any of their agents.
(d) ‘Client’ shall mean the person or entity (whether private, public or governmental body) issuing the instructions.
(e) ‘Force Majeure Event’ shall mean a cause or causes beyond the reasonable control of a Party affecting performance of any of its obligations under the Agreement, including Acts of God, fire, flood, or other catastrophes, acts of government, national emergencies. Insurrections, riots, war or acts of war and industrial disputes.
(f) ‘Party’ shall mean a Party to this STC (such as the Company and Client) and includes that Party’s successors, legal or personal representatives and permitted assigns.
(g) ‘Services’ shall mean any assignment undertaken under the Client’s instructions, including but not limited to surveys, investigative assignments, inspections, consultation, research, providing opinions in the capacity of expert witness in a testimony or trial and any other task as so instructed by the Client and undertaken by the Company.
Unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) words importing any gender include the other genders;
(c) reference to any statute ordinance or other law includes all regulations and other instruments and all consolidations amendments re-enactments or replacements for the time being in force;
(d) all headings bold typing and italics (if any) have been inserted for convenience of reference only and do not define limit or affect the meaning or interpretation of this STC.
2.1 Unless otherwise agreed in writing and except where they are at variance with the governing law or regulations, all offers made or Services provided by the Company and all resulting contracts, Agreement, assignments undertaken or other arrangements as mutually agreed between the Parties shall be governed by this STC.
3.0 PROVISION OF SERVICES – COMPANY’S RIGHTS AND OBLIGATIONS
3.1 The report, findings, observations, comments and recommendations provided by the Company are reported for the sole information and perusal of the Client or their solicitors, prepared for the purpose of obtaining professional advice in proceedings, pending, threatened or anticipated and under no circumstances will the same be delivered or distributed by the Company to any other third party.
3.2 The Company shall use reasonable care, skill and due diligence when carrying out the specific instructions received from the Client as confirmed by the Company, or, in the absence of such instructions, the Company shall:
(a) Conform to the terms of any standard order form or standard operational procedures and/or standards set by the Company; and/or
(b) Follow any relevant trade customs, usage or practice; and/or
(c) Use such methods and means as the Company shall consider fit and appropriate whether due to technical, operational and/or financial applicability and/or relevance.
3.3 The Company shall promptly report to the Client and seek further instructions if necessary.
3.4 Preliminary and final reports of the assignment shall be provided to the Client in a prompt and timely manner or otherwise as mutually agreed between the Parties.
3.5 Reports of findings issued by the Company shall reflect the facts recorded by it at the time of its intervention only and within the limits of instructions received, or in the absence of such instructions, within the alternative limits as provided under Clause 3.1. The Company is under no obligation to refer to, or report upon, any facts or circumstances which are outside the specific instructions received or alternative limits applied.
3.6 The Company may delegate the performance of all or any part of the Services to an agent or subcontractor and the Client authorises the Company to disclose all information necessary for such performance of the Services to the appointed agent or subcontractor. Delegation of the performance of all or any part of the Services to an agent or subcontractor shall neither restrict nor extend the rights, obligations and liability of the Company to the Client as provided under this STC.
3.7 Any documents received by the Company reflecting the terms contracted between the Client and third parties or third party documents such as copies of Bills of Lading, sale contracts, letters of credit, invoices etc are considered to be for information only and do not extend or restrict the scope of Services or obligations accepted by the Company. Subject to Clause 10.0 of this STC and save for contrary instructions received by the Company, such documents shall be deemed to be confidential in nature and shall not be disclosed to any other parties.
3.8 All samples taken during the course of the Services for analysis shall be retained for a maximum period of three (3) calendar months or such other shorter time period as the nature of the sample permits and then returned to the Client or otherwise disposed of at the Company’s discretion after which time the Company shall cease to have any responsibility for such samples. Storage of samples for more than three (3) calendar months shall incur a storage charge payable by the Client. The Client shall be billed for a handling and freight fee if samples are returned and special disposal charges if incurred.
3.9 The provision of the Services by the Company shall not, in any way whatsoever, be construed as the Company taking the place of the Client or any third party nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of the Client to the third party or that of the third party to the Client.
3.10 The Company’s sole responsibility upon receiving instructions from the Client to witness any third party intervention shall be limited only to the extent that the Company is required to be present at the time of the third party’s intervention and to forward the results obtained, or confirm the occurrence of the intervention.
3.11 The Company shall not be responsible for the condition or calibration of apparatus, instruments and measuring devices used, the analysis method applied, the qualifications, actions or omissions of third party personnel or the analysis results obtained.
4.0 USE OF THE SERVICES – CLIENT’S RIGHTS AND OBLIGATIONS
4.1 Unless the Company receives contrary written instructions, no other party is entitled to provide instructions, particularly to the scope of the Services or the delivery of reports, findings, certificates, test results and/or analysis etc other than the Client.
4.2 The Client shall:
(a) Ensure that sufficient information, instructions and documents are provided in due time, not later than forty-eight (48) hours prior to the desired intervention, to enable the required Services to be performed;
(b) Procure all necessary access for the Company’s representatives to the premises where the Services are to be performed and take all necessary steps to eliminate or remedy any obstacles to, or interruptions in the performance of the Services, as the case may be;
(c) Supply, if required, any special equipment and personnel necessary for the performance of the Services;
(d) Ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of the Services; and
(e) Provide due notification and detailed information in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing such as the presence of risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons.
4.3 The Client agrees that during the period under which the Services defined herein are being provided and for a period of one (1) year thereafter, the Client shall not recruit as an employee, solicit the services of, or offer inducements of any kind, to any employee, consultant, agent or subcontractor of the Company without the prior written agreement of the Company.
5.0 FEES AND PAYMENT
5.1 Fees not established between the Company and the Client at the time of instruction or Agreement negotiated shall be at the Company’s standard rates (which are subject to change).
5.2 Unless a shorter period is established in the invoice or debit note, the Client shall remit payment of all fees and charges due to the Company not later than thirty (30) calendar days from the relevant invoice or debit note date or within such other period as may be established by the Company in the invoice or debit note (the ‘Due Date’).
5.3 In the event that the Client fails to fulfil its obligations under the preceding clause above, interest shall become due at the rate of 2.0% per month (or such rate as may be expressed in the invoice or debit note) from the Due Date up to and including the date payment is actually received.
5.4 The Client shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute whatsoever, counter claim or set off which it may allege against the Company.
5.5 Notwithstanding Clause 9.0, the Company may, at its sole discretion, elect to bring legal action for the collection of unpaid fees and charges in any court having competent jurisdiction. In such an event, the Client shall pay all of the Company’s collection costs, including legal costs and expenses and any related costs thereby incurred.
5.6 In the event of any unforeseen problems or expenses arising in the course of carrying out the Services, the Company shall endeavour to inform the Client and shall be entitled to charge additional fees to cover the extra time and cost necessarily incurred to complete the Services.
5.7 If the Company is unable to perform all or part of the Services for any cause whatsoever outside the Company’s control, including the occurrence of a Force Majeure Event or failure of the Client to comply with any of its obligations under Clause 4.0 above, the Company shall nevertheless be entitled to payment of:
(a) The amount of all non-refundable expenses incurred by the Company, including disbursements, transport / travel expenses and accommodation, if any; and
(b) A proportion of the agreed fee equivalent to the proportion of the Services actually carried out.
6.0 TAXES AND DUTIES
The Client shall be liable for all sales, use, property, GST, VAT, customs, excise or other taxes (but not taxes levied upon the Company’s income) which may be imposed upon any fees charged as may be specified by any governmental authority.
7.0 SUBSTITUTION, SUSPENSION OR TERMINATION OF SERVICES
7.1 The Client shall be entitled to suspend or terminate the Services of the Company provided that:
(a) Prior written notice specifying details reasons for suspension or termination (the ‘Complaint’) has been received by the Company; and
(b) Provided that the Complaint is valid, justifiable and capable of being substantiated, and subject always to Clause 8.3, the Company has failed to rectify, remedy or correct the cause of the Complaint within fourteen (14) working days from the date of receipt of the Complaint.
7.2 Subject to the compliance of the provisos of Clause 7.1, the Company shall only be entitled to the payment of remuneration, fees or charges due prior to the date of the receipt of the Complaint.
7.3 The Company shall be entitled to immediately and without liability, suspend or terminate the Services in the event of:
(a) Failure by the Client to comply with any of its obligations hereunder and such failure is not remedied within fourteen (14) working days from the time such failure was notified to the Client;
(b) Any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by the Client, whether actual or threatened.
7.4 Following Clause 7.1, in the event that the Client wishes to substitute or appoint another company/organisation to carry out the remaining Services, the Company shall not be under any obligations to hand-over any report or findings to that company/organisation.
8.0 LIABILITY, LIMITATION AND INDEMNIFICATION
8.1 The Company is neither an insurer nor a guarantor and disclaims all liability in such capacity. Any Client seeking a guarantee against loss or damage should obtain appropriate insurance as it may deem fit.
8.2 Reports, findings, opinions and recommendations provided by the Company are issued on the basis of information, documents and/or samples provided by, or on behalf of, the Client and solely for the benefit of the Client who is responsible for acting as it sees fit on the basis of such reports, findings, opinion and recommendations provided. Neither the Company nor any of its officers, employees, agents or subcontractors shall be liable to the Client nor any third party for any action taken or not taken on the basis of such reports, findings, opinion and recommendation or any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to the Company.
8.3 The Company shall not be liable for any delayed, partial or total non-performance of the Services arising directly or indirectly from any event outside the Company’s control including failure by Client to comply with any of its obligations hereunder and the occurrence of a Force Majeure Event.
8.4 The liability of the Company in respect of any claim for loss, damage or expense of any nature and howsoever arising shall in no circumstances and at any time exceed a total aggregate sum equal to two (2) times the amount of the fee paid in respect of the specific Service which gives rise to such claim or Singapore Dollars One Thousand Only (SGD1, 000.00), or its equivalent in local currency, whichever is the lesser.
8.5 The Company shall have no liability for any indirect or consequential loss (including loss of profits).
8.6 In the event of any claim, the Client must give written notice to the Company within 30 working days of discovery of the facts alleged to justify such claim and, in any case, the Company shall be discharged from all liability for all claims for loss, damage or expense unless suit is brought within one year from:
(a) the date of performance by the Company of the Service which gives rise to the claim; or
(b) the date when the service should have been completed in the event of any alleged non-performance.
8.7 The Client shall guarantee, hold harmless and indemnify the Company and its officers, employees, agents or subcontractors against all claims (actual or threatened) by any third party for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising relating to the performance, purported performance or non-performance, of any Services.
9.0 DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION
9.1 The Agreement between the Company and the Client shall be governed by the laws of the Republic of Singapore.
9.2 All and any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity, termination, or breach hereof, shall be resolved amicably by consultation between the parties.
9.3 If such dispute, controversy or differences cannot be resolved by such consultation within thirty (30) calendar days, then a Party may, by written notice to the other Party (hereinafter the ‘Arbitration Notice’), refer the matter to settlement by arbitration conducted in Singapore, at the Singapore Chamber of Maritime Arbitration (‘SCMA’) in accordance with the Arbitration Rules of the SCMA (‘SCMA Rules’) for the time being in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this clause.
9.4 The Tribunal composition shall consist of one (1) arbitrator from the SCMA panel of arbitrators, to be appointed by the Chairman of the SCMA. The proceedings shall be conducted in English.
9.5 The award of the arbitration shall be final and binding upon the Parties concerned. Such award shall be enforced against the relevant Party or Parties in any jurisdiction by legal process or through any other process that is available to the other Party.
9.6 Notwithstanding any arbitration, the Parties shall continue to perform their obligations under the Agreement and enjoy their rights conferred by this STC so far as it is reasonably practicable.
10.1 The Company shall not disclose, distribute or deliver any information and/or survey reports and/or any documentary evidence obtained during the course of the assignment under which the Company was instructed and/or engaged to perform unless:
(a) otherwise as strictly required by the governing law; or
(b) save to the extent that the Company receives prior written authorization from the Client permitting such disclosure, distribution or delivery to a third party; or
(c) where the Client irrevocably authorizes the Company, at its discretion, where the Company implicitly follows from circumstances, trade customs, usage or practice.
10.2 The provisions of this Clause shall not apply to any information and/or documentation if:
(a) it is or becomes generally published in writing publicly known through no wrongful act of a third party or of any party disclosing or seeking to disclose;
(b) it is already and otherwise known by the party disclosing through lawful means;
(c) it is rightfully received by the party disclosing or seeking to disclose from a third party having the right to disclose; or
(d) auditors or any other Authority have been empowered by law, to seek such information.
10.3 This provision shall survive and shall continue to have effect after the expiry or termination of the Services.
If the whole or any part of this shall be or become illegal, invalid or unenforceable for any reason beyond the control of any Party, such condition or part thereof shall be deemed to be deleted from this STC and the remainder of this STC shall be valid and in full force and effect. If such deletion shall substantially affect or alter the commercial basis or services provided by the Company, the Parties shall be obligated to negotiate in good faith to attempt to redress such effects.
12.0 WAIVER AND MODIFICATION
12.1 No waiver of any breach of these provisions will be effective unless such waiver is in writing and signed by each Party to the Agreement against whom such waiver is claimed. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach.
12.2 No alteration or amendment to any such obligation will be effective or enforceable unless made in writing in an agreed format signed by all Parties to the Agreement.