CMS Terms and Conditions
This page tells you information about us and the legal terms and conditions on which we supply the condition monitoring services to you.
These terms will apply to any contract between us for the supply of condition monitoring services to you. Please read these terms carefully and make sure that you understand them before requesting the services.
We are Benjn. R. Vickers & Sons Limited, a company registered in England and Wales under company number 00130013 and with our registered office at Airedale Mills, 6 Clarence Road, Leeds, England, LS10 1ND.
These terms include limitation, exclusion and indemnity clauses and your attention is directed to the same.
SERVICE AGREEMENT FOR THE SUPPLY OF CONDITION MONITORING SERVICES
1.1 Definitions. In these Conditions, the following definitions apply:
“Agreement” means the agreement between Vickers and the Customer for the supply of Services and incorporates any Orders, the Specification and is governed by these Conditions.
“Charges” means the charges payable by the Customer for the supply of the Services, if any.
“Conditions” means these terms and conditions as amended from time to time.
“Customer” means the person or Company who orders and/or purchases Services from Vickers.
“Order” means the Customer’s order for Services made by completing the online request form or any hardcopy request form.
“Report” means the report as described in the Specification.
“Services” means the services supplied by Vickers to the Customer in accordance with the Order and including without limitation any condition monitoring, oil analysis, reporting, advisory or any other services whether or not as set out in the Specification.
“Specification” means the description or specification of the Services set out in the Schedule.
“Vickers” means Benjn. R. Vickers & Sons Limited.
1.2. Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
2. BASIS OF AGREEMENT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Vickers issues written acceptance of the Order or begins to provide the Services. Vickers may accept or reject an Order at its discretion.
2.3 The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Vickers which is not set out in the Agreement. Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Agreement.
2.4 These Conditions apply to and form part of the Agreement between Vickers and the Customer. These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by statute, trade, custom, practice or course of dealing and they supersede any previously issued terms and conditions of purchase or supply.
3. LIMITATION OF LIABILITY
3.1 Nothing in these Conditions will exclude, limit or restrict either party’s liability for:
3.1.1. death or personal injury resulting from the negligence of that party (or its officers, agents or employees);
3.1.2 fraud or fraudulent misrepresentation; or
3.1.3 any other matter in respect of which liability cannot by applicable law be as the case may be, limited or excluded.
3.2 Subject to Clause 3.1, Vickers shall under no circumstances whatsoever be liable to the Customer, whether (and without limitation) in contract, tort (including negligence), breach of statutory duty, or otherwise, whatsoever for:
3.2.1 any of the following losses (whether direct or indirect) arising under or in connection with the Agreement or its performance:
(a) loss of profits;
(b) loss of revenue;
(c) loss of business;
(d) loss of goodwill;
(e) loss of business opportunity;
(f) increased costs; and
(g) loss of anticipated savings.
3.2.2 all and any indirect, consequential or special losses arising under or in connection with the Agreement or its performance;
3.2.3 all and any losses due to physical damage to any plant, equipment or vessel; and
3.2.4 any loss of, alteration, damage or destruction to any samples provided by the Customer to Vickers in relation to the Services.
3.3 Subject to Clause 3.1 Vickers’s total liability to the Customer in respect of losses arising under or in connection with the Agreement, whether (and without limitation) in contract, tort (including negligence), breach of statutory duty, or otherwise whatsoever, shall in no circumstances exceed the greater of: (i) £1000; or (ii) the amount of Charges (if any) paid by the Customer under this Agreement.
3.4 The Customer agrees that the warranties, exclusions and limitations of liability contained in this Agreement are reasonable in all the circumstances taking into account that Vickers is providing the Services free of charge, or for minimal charges.
3.5 This Section 3 shall survive termination of the Agreement.
4. SUPPLY OF SERVICES
4.1 Vickers shall supply the Services to the Customer materially in accordance with the Specification.
4.2 Time shall not be of the essence for performance of the Services.
4.3 Vickers shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.
4.4 Title to the samples shall transfer to Vickers upon receipt by Vickers. Risk of loss or damage to all samples provided in accordance with this Agreement shall not pass to Vickers (including the risk associated with the shipping of the samples) which shall be borne by the Customer.
4.5 Vickers shall be entitled to retain or destroy the samples at its absolute discretion.
4.6 The Customer acknowledges that:
4.6.1 Vickers provides the Services free of charge, or for a minimal charge;
4.6.2 the Customer remains responsible for evaluating the merits and appropriateness of any recommendations contained within the Report for evaluating and taking, or refraining from, any action on the basis of any recommendations provided by Vickers or a third party in relation to the Services and shall always act as it sees fit.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 co-operate with Vickers (including its agents, sub-contractors and employees) in all matters relating to the Services, including as set out in the Specification;
5.1.2 provide Vickers (including its agents, sub-contractors and employees), at its own expense, any and all samples, information, material or other documentation necessary for the execution of the Services in a timely manner sufficient to enable Vickers to provide the Services in accordance with this Agreement. The Customer acknowledges that any samples provided may become altered, damaged, discarded, or be destroyed in the course of testing or transit and the Customer undertakes to hold Vickers harmless from any and all responsibility for such alteration, damage or destruction;
5.1.3 notify Vickers (including its agents, sub-contractors and employees) promptly of any risk, safety issues or incidents in respect of any item delivered by the Customer.
5.2 The Customer agrees that it shall have no claim, rights or entitlement whether in tort (including negligence), contract or otherwise whatsoever against any third party (including Intertek) in respect of its work and outputs commissioned and/or delivered in order to fulfil in whole or part the Services and shall bring no proceedings or claims in respect of such matters against such third parties.
5.3. The Customer acknowledges that Vickers nor any third party involved in preparing any report or testing shall have any liability or responsibility to any third party and should the Customer share the report with any other party it shall alert such party of this disclaimer.
6. CHARGES AND PAYMENT
6.1. Vickers and Customer acknowledge that the Services are being provided by Vickers free of charge unless agreed expressly in writing to the contrary.
6.2 To the extent that the parties agree that Charges are applicable in relation to the Services and/or under this Agreement, the following provisions shall apply:
6.2.1. Vickers shall invoice the Customer monthly in arrears.
6.2.2. The Customer shall pay each invoice submitted by Vickers
(a) within 30 days of the date of the invoice; and
(b). in full and in cleared funds to a bank account nominated in writing by Vickers;
6.2.3 All amounts payable by the Customer under the Agreement are exclusive of any applicable taxes. The Customer shall pay any applicable taxes on the Charges at the rate and in the manner prescribed by law, on the issue of a valid invoice.;
6.2.4. The Customer shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
6.2.5. Vickers may vary the Charges at any time by providing one months’ notice in writing to the Customer.
7. WARRANTIES AND INDEMNITY
7.1 The Customer represents and warrants that:
7.1.1 it has the power and authority to enter into this Agreement and procure the provision of the Services for itself;
7.1.2 the terms of the Order and any information, samples, materials and related documents it (or any of its agents or representatives) supplies to Vickers or a third party in accordance with this Agreement, are true, complete, accurate and not misleading in any way and the Customer further acknowledges that Vickers (and/or its sub-Vickers) will rely on such information, samples or other related documents and materials provided by the Customer (without any duty to confirm or verify the accuracy or completeness thereof) in order to provide the Services; and
7.2 The Customer further agrees and acknowledges that the Services are not necessarily designed or intended to address all matters of quality, safety, performance or condition of any product, material, services, systems or processes tested, inspected or certified and the scope of work does not necessarily reflect all standards which may apply to product, material, services, systems or process tested, inspected or certified.
7.3 Vickers excludes all other warranties conditions and other terms (whether express or implied, including without limitation those implied by sections 3 to 5 of the Supply of Goods and Services Act 1982), implied by statute or common law (including but not limited to any implied warranties of fitness for purpose) to the fullest extent permitted by law in relation to the provision of the Services.
7.4 The Customer shall indemnify, and keep indemnified, Vickers from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Vickers as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Agreement or in respect of any claim brought against Vickers (or any third party whose work supported the Report or recommendations) by any third party related to any part of the Services or their outputs.
8.1 Without limiting its other rights or remedies, either party may terminate the Agreement by giving the other party one month’s written notice.
9. CONSEQUENCES OF TERMINATION
9.1 On termination of the Agreement for any reason:
9.1.1 the Customer shall immediately pay to Vickers all of Vickers’s outstanding unpaid invoices and, in respect of Services supplied but for which no invoice has been submitted, Vickers shall submit an invoice, which shall be payable by the Customer immediately on receipt;
9.1.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected; and
9.1.3. clauses which expressly or by implication survive termination shall continue in full force and effect.
10. FORCE MAJEURE
10.1 Vickers shall be under no liability for any failure to perform any of its obligations under the contract if and to the extent that the failure is caused by act of God, war, riots, civil commotions, strikes, lock-outs, trade disputes, fires, breakdowns, interruptions of transport, governmental action or restriction, shortages of labour or materials or breakdown of machinery, delay in delivery by Vickers’ suppliers or any other cause whatsoever (whether or not similar to the foregoing) outside of the reasonable control of Vickers (such matters being “Force Majeure Events”).
10.2 Vickers shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to them by Vickers, its employees, agents or subcontractors, and any other confidential information concerning Vickers’ business, its products and services which Customer may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this Clause 11.
12. INTELLECTUAL PROPERTY
12.1 As between Vickers and the Customer, all intellectual property rights in any Reports, document, graphs, charts, photographs or any other material (in whatever medium) produced by Vickers (or its agents, sub-contractors or employees) pursuant to this Agreement shall belong to Vickers and/or its sub-contractor. The Customer shall have the right to use any such Reports, document, graphs, charts, photographs or other material for the purposes of this Agreement only.
13. Any use by the Customer (or the Customer’s affiliated companies or subsidiaries) of Vickers’s intellectual property rights (including without limitation trademarks and brand names) for any reason must be prior approved in writing by Vickers.
14. DATA PROTECTION
14.1 Vickers will process your data in accordance with our website policy
14.2 Each party shall Process such Personal Data relating to each party’s representatives in accordance with their respective privacy policies. The parties acknowledge that they may be required to share Personal Data with their affiliates, group companies and other relevant parties, within or outside of the UK, and in doing so each party will ensure that the sharing and use of this Personal Data complies with applicable Data Protection Legislation.
14.3 Where and to the extent that Vickers may Process Personal Data for and on behalf of the Customer as part of the Services, Vickers shall be deemed the Processor and the Customer shall be deemed the Controller.
15.1. Customer shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
15.1.1. all of that party’s personnel;
15.1.2. all others associated with that party; and
15.1.3. all of that party’s subcontractors, involved in performing this Agreement so comply.
16.1. Assignment and other dealings.
16.1.1. Vickers may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
16.1.2 The Customer shall not, without the prior written consent of Vickers, assign, transfer, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.
16.2.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
16.2.2 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.3.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
16.3.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.4 Waiver. A waiver of any right under this Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.6. Third parties. A person who is not a party to this Agreement shall not have any rights to enforce its terms.
16.7 Variation. Except as set out in these Conditions, no variation of this Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Vickers.
16.8 Governing law. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
16.9. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE OF SERVICES
1. CONDITION MONITORING SERVICES:
1.1. Vickers shall:
1.1.1 provide sampling bottles, packaging, instructions and documentation to the Customer as are required to perform the Services (the “Sampling Kit”);
1.1.2 following receipt of the Customer’s completed Sampling Kit, arrange for a Routine Lubricant Analysis report (the “Report”) to be produced and supplied to the Customer, including comments and recommendations where considered appropriate to the ship owner/ship operator. Vickers will use reasonable endeavours to provide the results of the analysis, with comments and recommendations, promptly following receipt of the Routine Lubricant Analysis report;
1.1.3 arrange for an extended analysis where appropriate (which may incur additional Charges);
1.1.4 undertake other testing, as deemed appropriate, and provide additional services as may be requested by the Customer and agreed to by Vickers in writing (which may incur additional Charges); and
2. The Customer shall:
2.1.1 advise Vickers in writing of the ships it wishes to be included in the scope of the Services;
2.1.2 draw and forward the necessary samples for testing and evaluation in accordance with Vickers’s instructions and good industry practice and procedures;
2.1.3. afford Vickers every facility and assistance in respect of other tests that may be agreed or for the undertaking of any additional services requested; and
2.1.4. disclose to Vickers at the outset whether it contracts as principal or as agent for and on behalf of a named principal.