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Engagement Terms

1. THE ENGAGEMENT

1.1. The Engagement Terms – In these terms of business:

1.1.1. "The Client" means the person or party specified in the acknowledgement of assignment correspondence issued by Meghaj Marine Services Pte Ltd (MMSPL) in relation to its engagement by the Client or with whom MMSPL has otherwise contracted to provide its services (the "Engagement") in respect of the relevant matter, incident, loss or accident (the "Matter").

1.1.2. "MMSPL" means Meghaj Marine Services Pte Ltd and any of its divisions or affiliates, instructed by, or on behalf of, the Client, including any MMSPL or appointed/contracted personnel as well as surveyors involved in the Engagement.

Unless otherwise agreed, these terms of business supersede any other agreement or arrangement (whether written or oral) previously agreed between MMSPL and the Client in relation to the Matter. In the case of a conflict between these terms of business and any other terms agreed with the Client, these terms of business will prevail.

1.2. The MMSPL Team

MMSPL will make reasonable efforts to ensure that those of its personnel notified to the Client are available to work for the Client on the Engagement. MMSPL will endeavour to give the Client reasonable notice of any necessary change in such personnel and provide details of their proposed replacements.

1.3. Timetable

MMSPL will make reasonable efforts to adhere to any timetable agreed in writing with the Client. If the Client has agreed to a fixed price for MMSPL's services over a fixed period and the time taken to provide such services exceeds that fixed period due to circumstances beyond MMSPL's control, MMSPL will be entitled to charge its standard daily rates for days worked after that fixed period in order to complete the Engagement. For the avoidance of doubt, time is not of the essence to MMSPL's performance of the Engagement unless MMSPL has expressly agreed otherwise in writing.

1.4. Reporting

MMSPL will report to the Client with appropriate information on the progress of the Engagement as regularly as may be appropriate for the Engagement or as otherwise agreed with the Client. MMSPL will send its reports to the Client at the address notified to MMSPL by the Client from time to time or, where clause 1.5 applies, to the relevant broker or other third party. For the purposes of these terms of business, a "report" means any report, advice or written statement supplied by MMSPL in the course of the Engagement. MMSPL may submit to the Client various types of reports throughout and following completion of the Engagement, including preliminary, survey, photo, intermediate, final and addendum reports. However, the Client should rely only on the information contained in a written report(s) specifically identified as 'FINAL REPORT'. The final report(s) should be considered a snapshot in time, good for only the day that it is done. MMSPL is not responsible for updating reports for events that take place after the issuance of the final report(s). MMSPL has the right to issue amended reports if presented with additional or conflicting information or if errors have been discovered in existing reports, as can occasionally occur during the normal course of business. Reports provided by MMSPL do not constitute any expressed or implied recommendations to the Client.

1.5. Instructions via third parties

Unless otherwise instructed by the Client, where MMSPL is instructed by a broker or other third party on behalf of the Client, MMSPL shall be entitled to accept and rely on instructions from such broker or third party as if those instructions were given by the Client and the Client hereby expressly authorises MMSPL to liaise and share information (including any of its reports relating to the Matter) with any such broker or third party. For the avoidance of doubt, where MMSPL provides a report to a broker or third party pursuant to this clause, it shall be deemed to have provided such report to the Client.

1.6. MMSPL Sub-Contractors

The Client agrees that MMSPL may engage or use contractors, sub-contractors or other persons to provide the services for which it has been engaged by the Client.

1.7. Third Party Experts

From time to time, third-party technicians (such as external or consultant surveyors), professional advisers or other experts (such as chemical, gas, fire experts or metallurgists) in connection with the Engagement (a "Third Party Expert"). Where the Client appoints a Third-Party Expert or requests MMSPL to appoint such a Third-Party Expert on its behalf, the Client hereby expressly authorises MMSPL to instruct, liaise and share information with any such Third-Party Expert to the extent MMSPL considers it reasonably necessary in connection with the Engagement. Where MMSPL appoints a Third-Party Expert as a sub-contractor, clause 1.6 applies.

1.8. Variations to Engagement

If the Client wishes any variations to be made to the Engagement, it must notify MMSPL in writing as soon as possible. MMSPL shall endeavour to make any requested changes, and any additional costs thereby incurred shall be due to and invoiced to the Client. If, due to circumstances beyond MMSPL's control, it has to make any change in the arrangements relating to the Engagement, it shall notify the Client forthwith. MMSPL shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.

2. THE CLIENT'S RESPONSIBILITIES

2.1. Support

If MMSPL is required to work at/with the Client's or any third-party premises, vessels, work sites, goods, installations and transport, the Client will obtain all consents and / or approvals required for MMSPL personnel to access such premises or vessels, goods, installations and transport and shall ensure that MMSPL's personnel are provided with such facilities and equipment as are reasonably necessary to enable them to perform the Engagement efficiently and in safety with necessary indemnities.

2.2. Information

The Client will give MMSPL all information, instructions, and assistance reasonably necessary to enable MMSPL to perform the Engagement, and the Client will ensure that its appropriate personnel are available to MMSPL for such purposes. The Client hereby acknowledges that MMSPL will rely on such information, instructions and assistance when performing the Engagement and that MMSPL's ability to perform its services efficiently and effectively depends on this. The Client agrees to inform MMSPL if the Engagement involves, or is reasonably likely to involve, litigation.

2.3. Payment

The Client will pay MMSPL's fees, disbursements, expenses and applicable local taxes, including goods and services tax (GST) where appropriate (hereinafter "applicable taxes") in respect of the Engagement in accordance with clause 3 below or as otherwise agreed with the Client.

3. FEES AND PAYMENT

3.1. Method of Calculation

Unless otherwise agreed in writing, MMSPL's fees will be charged to the Client on a time basis at the applicable hourly rates plus applicable taxes for all MMSPL personnel working on the Engagement. Such fees may include, without limitation, time spent by such MMSPL personnel in connection with the Engagement on travelling, attending meetings and interviews, research, investigation, and forensics, working on and preparing reports and associated papers, correspondence and telephone calls. Unless agreed in writing or MMSPL appoints a Third-Party Expert as a sub-contractor to which clause 1.6 applies, MMSPL's fees will exclude any fees payable by the Client for Third Party Experts. All fees for such Third-Party Experts will be payable directly by the Client to the relevant Third-Party Expert. Upon receipt of an invoice, the Client agrees to pay all disbursements and expenses incurred by MMSPL (including all disbursements and expenses for sub-contractors) in connection with the Engagement.

3.2. Disbursements

MMSPL's fees will exclude any fees payable by the Client for any Third-Party Experts, which the Client agrees will, unless otherwise agreed, be payable directly by the Client to the relevant Third-Party Expert. Upon receipt of an invoice, the Client agrees to pay all disbursements and expenses incurred by MMSPL in connection with the Engagement, including charges for travel, subsistence, accommodation and out-of-office or on-site additional expenses such as telephone calls and photocopying on an at-cost plus applicable taxes basis. In addition, MMSPL shall be entitled to recover from the Client its reasonable incidental expenses in connection with the Engagement.

3.3. Estimates

Any estimate of fees or of the time likely to be involved in performing the Engagement will be given by MMSPL in good faith to the Client for planning or other purposes only, and the estimate will not be contractually binding on either party unless otherwise specifically agreed.

3.4. Taxes including GST

Insofar as any fees, disbursements and expenses are liable to any applicable taxes which MMSPL may be liable under applicable local law to pay or collect in respect of the Engagement, the Client agrees to pay all such taxes and reimburse MMSPL accordingly upon receipt of MMSPL's invoice in respect of such taxes.

3.5. Fee Changes

MMSPL may vary its hourly rates as applicable from time to time, including, without limitation, as a result of any periodic review of such rates by MMSPL.

3.6. Billing

Unless otherwise agreed, MMSPL normally renders interim invoices on a monthly basis and a final invoice on completion of the Engagement. Each invoice will attach details of the work undertaken and copies of any other invoices for significant disbursements and expenses described in clause 3.2 above. Notwithstanding the foregoing, MMSPL reserves the right to issue interim invoices on a more frequent or some other basis for work performed to date or the necessity of urgent disbursements. Unless otherwise agreed, all MMSPL's invoices will be addressed to the Client.

3.7. Payment

All MMSPL invoices (whether interim or final) are due for payment in full on receipt by the Client as stipulated on the invoice, and the Client is liable for their payment to MMSPL. If payment in full is not received by MMSPL within 30 (thirty) days of the Client's receipt of an invoice, MMSPL will have the right, in addition to any statutory rights available to it (including the right to charge statutory interest at 5% above the current base rate of the MAS in terms of the Late Payments, to suspend the provision of its services and / or to terminate its Engagement in accordance with clause 4.3.1 below and / or to exercise a lien in accordance with clause 4.4.2 below, regardless of whether the Engagement has been terminated or not. MMSPL may require part or full payment up front as a condition of commencing the Engagement.

If arrangements are made for a third party to pay any of MMSPL's fees or disbursements, the Client shall remain primarily responsible for the payment of any remaining fees or disbursements and any charges that MMSPL may incur to the extent that the third party does not pay MMSPL's invoice in full, or MMSPL is unable to accept payment from it.

3.8. Disputed Invoices

The Client must notify MMSPL within 7 (seven) days of any invoice dispute, giving full reasons for the disputed portion and paying the undisputed part as above. The parties shall endeavour to informally resolve the disputed portion without delay.

4. TERMINATION

4.1. Duration

The Engagement will terminate when all amounts invoiced to the Client in connection with MMSPL's Engagement have been received by MMSPL, unless the Engagement is terminated earlier in accordance with clause 4.2 or 4.3 below.

4.2. The Client's Right to Terminate

The Client may terminate the Engagement at any time by giving not less than 30 (thirty) days' notice in writing to MMSPL.

4.3. MMSPL's Right to Terminate

MMSPL may terminate the Engagement immediately by giving written notice to the Client if:

  • the Client fails to pay any of MMSPL's invoices when due or fails to advance to MMSPL any funds requested by MMSPL in accordance with clause 3.4 above.
  • the Client is unable to pay its debts or has a receiver, administrator or liquidator appointed.
  • any conflict of interest arises in accordance with clause 5 below.
  • MMSPL is prohibited from performing the Engagement due to applicable laws and regulations, including sanctions.
  • The Client is in breach of any of these terms of business and having received written notice from MMSPL to such effect requiring the Client to remedy such breach within the time reasonably specified in such notice, the Client has failed to remedy such breach in such time.

4.4. Costs and Lien

On termination of the Engagement for any reason:

  • The Client shall pay to MMSPL forthwith all fees, disbursements, and expenses due to MMSPL up to and including the day of termination incurred in connection with the Engagement upon delivery of MMSPL's invoice to the Client and
  • until MMSPL has received payment in full for such invoice, MMSPL shall have a lien over and be entitled to retain all the Client's money, records, documents, deeds, storage media, books, papers and any other information in hard copy or stored electronically in MMSPL's possession relating to the Matter and the Engagement or otherwise in MMSPL's control.

5. CONFLICTS OF INTEREST

5.1. Possible Termination

In circumstances where there is or may be a conflict of interest between MMSPL and another party involved in the Matter, MMSPL may be precluded from acting or may have to cease acting for the Client unless all parties involved in the Matter agree in writing that MMSPL shall continue acting in connection with the Matter. MMSPL will make every reasonable effort to identify any such conflict and advise the Client accordingly prior to accepting an Engagement or, if identified subsequently, immediately. In the event that MMSPL subsequently discovers a conflict and is obliged to withdraw from acting for the Client, MMSPL shall be entitled to invoice the Client and be paid in full by the Client for any fees, disbursements, expenses and applicable taxes incurred in the Engagement prior to such withdrawal. In the event that such conflict arises in respect of a Client (re)insured and a Client (re)insurer, MMSPL will offer to continue acting for the Client (re)insurer, who will become solely responsible for payment of such prior fees, disbursements, expenses and applicable taxes.

5.2. Acting for Other Clients

MMSPL will not be prevented or restricted by anything contained in these terms of business from acting for other clients in connection with the Matter unless otherwise agreed in writing with the Client.

6. LIMITATION OF LIABILITY

6.1. Skill and Care

MMSPL will exercise reasonable care and skill in the performance of the Engagement in accordance with good marine surveying and consulting practice. All other such warranties and representations, whether express or implied by law, are excluded to the extent permitted by law.

6.2. Limit of Liability

MMSPL's liability to the Client in respect of any claim for breach of contract, negligence, breach of trust or statutory duty or any other claim made against MMSPL or its personnel in connection with the Engagement is limited as follows:

  • In respect of any claim, MMSPL's total liability in respect of all liability arising in connection with the Engagement shall be limited to the value of two times the MMSPL's fees excluding disbursements, expenses and applicable taxes incurred in respect of the Engagement.
  • In any claim made against MMSPL where parties other than MMSPL also share liability for such claim, MMSPL's liability for such claim shall be limited to that proportion of any loss or damage so claimed for which it would be just and equitable for MMSPL to contribute having regard to the extent of MMSPL's factual responsibility for such loss or damage, on the basis that those parties shall be deemed to have provided an undertaking in terms no less onerous than this clause but not exceeding the value defined in 6.2.1.

6.3. Excluded Liability

Subject to the application of clauses 6.2.1 and 6.2.2 above, MMSPL shall have no liability for:

  • any indirect or consequential loss or damage including, without limitation, loss of profits, loss of revenue, loss of opportunity and loss of contracts.
  • any claim for breach of contract, negligence, breach of trust or statutory duty or other claim in respect of any delay or failure by MMSPL to perform any of its obligations under these terms of business or the Engagement where such failure results directly or indirectly from any negligent or wilful act of the Client or a third party.
  • any loss or damage arising from MMSPL's reliance on any information, instruction or assistance given by the Client or resulting from the Client's failure to give any relevant information, instructions, or assistance in connection with the Engagement.
  • any loss or damage arising from the Client's reliance on MMSPL's reports at a later date than that stated on the final report.
  • any and all claims the Client may have against MMSPL in respect of which proceedings are not brought within 12 (twelve) months of the date when the Client's cause of action arose.

6.4. Liability for Third Party Experts

MMSPL will have no liability to the Client or any third party either for the instructing or performance of, or any opinions, statements, acts or omissions of, any Third Party Expert, nor in respect of its own opinions, statements, acts or omissions insofar as these depend upon, are based upon, are derived from or are a consequence of opinions, statements, acts or omissions of any such Third Party Expert. Further, MMSPL makes no representation or recommendation to the Client as to any Third-Party Expert's experience, suitability or competence.

6.5. Liability of MMSPL Personnel

The Client acknowledges that MMSPL has an interest in limiting the liability of all its personnel involved in the Engagement. Accordingly, the Client agrees not to bring any claim of any kind in connection with the Engagement against any individual employee of MMSPL, any person seconded to MMSPL, or any agent, correspondent, subcontractor or self-employed consultant engaged by MMSPL (together "personnel").

6.6. Force Majeure

Neither MMSPL nor the Client will be liable to the other for their failure to fulfil their respective obligations under these terms of business or the Engagement caused by circumstances outside their reasonable control.

6.7. Reasonableness

The Client agrees that the foregoing limitations and exclusions of MMSPL's potential liability are reasonable based on:

  • The amount of any likely liability to the Client if a breach by MMSPL occurs.
  • The current and future availability and cost to MMSPL of professional indemnity insurance
  • The amount of fees payable to MMSPL, and
  • The level of risk assumed by MMSPL in connection with its obligations.

In connection with the Engagement, should any limitation or provision contained in this clause 6 be held to be invalid under any applicable statute or rule of law, it shall only to that extent be deemed omitted from the terms of business and all other limitations and provisions of such terms shall remain in force.

6.8. Claims

If a claim is made against the Client as a result of, or in connection with, a liability incurred to, or a dispute with, any third party, MMSPL will give the Client all reasonable facilities and cooperation to investigate such claim and will provide the Client with such information and assistance as the Client may reasonably require in connection with such claim, liability or dispute.

6.9. Indemnity

Unless the subject matter of the indemnity provided for by this clause 6.9 has been caused by MMSPL's breach of these terms of business, the Client undertakes to indemnify MMSPL and keep it indemnified fully at all times against all liability that may arise from time to time, and against all claims, demands, actions, proceedings, damages, losses, costs and expenses which are made, brought or claimed against or incurred by MMSPL in connection with the Engagement.

7. MISCELLANEOUS

7.1. Compliance with Applicable Laws

Both parties will comply with all legal and regulatory requirements applicable to them and/or their activities in the jurisdictions in which they operate, including, without limitation, any laws or regulations relating to data protection, data privacy, financial crime, bribery and corruption, sanctions, and anti-trust. Further, both parties shall maintain adequate policies and procedures to prevent breaches of any such applicable laws or regulations by their employees, representatives, and agents. The Client warrants to MMSPL that it has obtained and will maintain throughout the Engagement all requisite legal, regulatory, or other authorisations and approvals to operate in the relevant territory (including via MMSPL) and to appoint MMSPL to perform the services pursuant to the Engagement and that such appointment is compliant with all Applicable Laws.

7.2. Sanctions Compliance

The Client acknowledges that MMSPL is a Singapore-registered company.

MMSPL has a responsibility to ensure that the Client meets its corporate standards with respect to international sanctions.

The Client represents and warrants that:

  • In appointing MMSPL to perform the services pursuant to the Engagement, it will not do anything that does or may place MMSPL in breach of any sanctions that are or may be applicable to MMSPL.
  • It is not on the U.S. Government's List of Specially Designated Nationals and Blocked Persons ("SDN List") or owned 50% or more in the aggregate or individually by persons or entities on the SDN List.

The Client shall ensure that it has appropriate systems, procedures, controls and training in place to allow it to comply with sanctions provisions and restrictions applicable to MMSPL and that its employees, agents and contractors receive adequate training on this.

MMSPL reserves the right to screen new and existing insureds, beneficiaries or payees against sanction-related lists promulgated from time to time by the US, the UK, the EU and the UN as may be required by the MMSPL's sanctions program from time to time. The Client acknowledges that MMSPL shall have no obligation to accept any appointment that would expose MMSPL to any sanction, prohibition or restriction and shall have the right to block, freeze or reject any instruction in order for MMSPL to meet its legal and/or internal compliance requirements. In the event that the Client's appointment is blocked, frozen or rejected, MMSPL shall promptly inform the Client of the circumstances that led to the block, freeze or rejection.

7.3. Third Parties

The terms of business set out the rights and obligations of the Client and MMSPL only.

7.4. Confidentiality

MMSPL will keep confidential all information obtained from the Client, except insofar as MMSPL is required by law, regulation, a court of competent jurisdiction or any regulatory or governmental authority to disclose such information. This clause does not apply to documents or information that CT MTS obtains or develops independently of the Engagement or other work done for the Client, which it receives from a third party which, as far as it is aware, is not under a duty of confidentiality to the Client or which are already in the public domain.

7.5. Waiver and Amendment

No waiver of or amendment to any of these terms of business will be effective unless it is made or confirmed in writing and signed by both MMSPL and the Client.

7.6. Soliciting Personnel

Without MMSPL's approval, the Client shall not, during the Engagement or within six months after its termination or expiry, offer employment to or otherwise solicit any MMSPL personnel involved in the Matter.

7.7. Record Retention

Unless the Client instructs otherwise in writing beforehand, MMSPL will be at liberty to destroy all records, files and papers, including electronic records, to the extent technically and legally permissible, but excluding title deeds relating to the Matter and/or the Engagement, following expiry of 6 (six) years from the end of the Engagement.

7.8. E-mail and the Internet

MMSPL and the Client recognise that e-mail transmissions and the Internet cannot be guaranteed as a 100% secure or error-free communications medium, as information may be intercepted, corrupted, lost, destroyed, arrive late, be incomplete, or contain viruses or other malware. MMSPL monitors the contents of e-mails sent and received via its network for viruses or other malware, and unauthorised use of email is controlled through access and delegation controls. E-mail messages sent to or from MMSPL's systems are not confidential to any named individual at MMSPL, and MMSPL reserves the right to read them without prior notice. MMSPL recommends that recipients should also check e-mail messages for viruses or other malware in accordance with good IT practices.

7.9. Data Protection

The handling of personal data by MMSPL and the Client shall be in accordance with company policy.

7.10. Software

All software programs used by MMSPL or made available to the Client by MMSPL in the course of the Engagement (including any modifications, enhancements or upgrades thereto) shall remain at all times the property of MMSPL. To the extent that Client provides MMSPL with access to any of its software programs in the course of the Engagement, these shall remain at all times the property of the Client.

7.11. Complaints Procedure

If the Client has any complaint to make about MMSPL's performance of the Engagement, the Client should first raise it with its primary MMSPL contact and, if the complaint is still not resolved to the Client's satisfaction, with MMSPL's Director (services@meghajmarine.com) who will investigate the complaint and seek to resolve it with the Client.

7.12. Governing Law and Jurisdiction

These terms of business (and any non-contractual obligations arising out of or in connection with them) will be governed by and interpreted in accordance with the Singapore Law and the parties to such terms agree that any unresolved dispute or difference arising in connection with these terms of business (and any non-contractual obligations arising out of or in connection with them) will be subject to the exclusive jurisdiction of the Singapore Courts.

7.13. Limitation of Liability and Assumption of Risk

The Contractor acknowledges and agrees that they undertake the work at their own risk. The Company shall not be liable for any injury, harm, or loss sustained by the Contractor during the course of performing their duties. The Contractor is responsible for adhering to all safety guidelines and procedures and acknowledges that participation in work-related activities is at their own risk.

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