TERMS AND CONDITIONS OF BUSINESS
MARGUILD LLC | MARGUILD MARINE AND ENERGY CONSULTANTS
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this Article apply to these Terms and Conditions (the “Conditions”). All work conducted will be governed by these Conditions. Marguild LLC and the Client are individually referred to as a “Party” and collectively as the “Parties.”
1.2 “Agreement”: Any instruction or request for services by a Client and subsequent acceptance by Marguild LLC and performance of services by Marguild LLC for the Client. These Conditions, as may be amended by the written agreement of the Parties, govern each Agreement unless separate terms and conditions are agreed to in writing between Marguild LLC and the Client.
1.3 “Client”: The legal entity or organization that purchases services from Marguild LLC.
1.4 “Confidential Information”: Any information disclosed in whatever form, by a Party to the other Party, including but not limited to technical, environmental, commercial, legal, and financial information relating directly or indirectly to the Parties and/or to the Agreement.
1.5 “Deliverables”: All documents created by Marguild LLC or its employees, agents, subcontractors, or consultants in relation to the performance of the services.
1.6 “Duration”: The period specified in the Agreement during which Marguild LLC shall perform the Services.
1.7 “Effective Date”: The date on which the Agreement becomes official and binding.
1.8 “Force Majeure”: An event beyond the reasonable control of one Party, including but not limited to armed conflict, terrorist attack, civil war, riots, toxic hazards, epidemics, natural disasters, extreme weather, explosion, failure of utility service, labor disputes, breakdown of infrastructure, sanctions, or any public restrictions following any incidents above, or any other Force Majeure occurrence.
1.9 “Intellectual Property Rights”: All patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals, reversions or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world, as well as any Intellectual Property Rights owned by each Party as of the commencement date of the Agreement or otherwise created outside the scope of the Agreement.
1.10 “Services”: The services to be provided by Marguild LLC to the Client under the Agreement.
1.11 “Marguild LLC”: Marguild LLC (DBA - Marguild Marine and Energy Consultants) or any of its affiliates specified in the relevant contract.
2. COMMENCEMENT & DURATION
2.1 Unless otherwise agreed by the Parties, the services performed under the Agreement shall be provided by Marguild LLC to the Client from the Effective Date of performance of the services.
2.2 The Effective Date shall be mentioned in the Agreement unless agreed otherwise by the Parties. In this case, the Effective Date will be agreed in writing by the Parties at the beginning of the project by an exchange of emails.
3. SCOPE & PERFORMANCE
3.1 Marguild LLC warrants that it will conduct all work performed under this agreement with reasonable care and professional skill. If Marguild LLC does not comply with this warranty then, Marguild LLC shall take action as Marguild LLC considers necessary to remedy any errors or omissions in the conduct of the work.
3.2 Marguild LLC is not and may not be considered as an underwriter, broker in Unit's sale or chartering, controller, designer, manufacturer, shipbuilder, repair or conversion yard, charterer, or ship-owner; none of the above listed being relieved of any of their expressed or implied obligations as a result of the interventions of Marguild LLC.
4. TAXES & EXPENSES
4.1 Prices, rates and estimates provided by Marguild LLC do not include sales or value added taxes or customs duties that may be applicable to the work.
4.2 Prices, rates and estimates shall be valid for a period of three months after they are made.
4.3 All expenses and disbursements incurred by Marguild LLC in pursuance of the work will be charged at cost.
4.4 Consultancy services fall within the US Place of Supply Rules i.e. supplied in the country where our customer is established. Therefore, sales tax at the current rate may be added to your invoice.
5. PAYMENT & INVOICING
5.1 Payment shall be made within 30 days of the date of the invoice.
5.2 Unless otherwise agreed all payments shall be in US dollars.
5.3 If the invoice is not paid by the due date, overdue amounts may be subject to an interest charge at the rate of 12 percent per annum or the maximum rate allowed by applicable US law, whichever is higher.
6. CONFIDENTIAL INFORMATION
6.1 Marguild LLC will ensure that Client's Confidential Information provided will not be disclosed to a third party without the prior written consent of Client. Marguild LLC will use Client's Confidential Information only in connection with performance of the Agreement and shall promptly advise the Client of any demands of disclosure.
6.2 Notwithstanding the above, Confidential Information that Marguild LLC can prove on disclosure to be public knowledge, in the possession of Marguild LLC without binder of secrecy, is required to be disclosed under applicable law or by a governmental order, decree, regulation or rule or by a stock exchange authority or developed independently of Client's Confidential Information, is not Confidential Information. Restrictions on disclosure of Client's Confidential Information will cease if Marguild LLC can prove that the information has become public knowledge through no fault of Marguild LLC or is subsequently disclosed to Marguild LLC without an obligation of confidentiality by a third party who has the legal right to do so.
6.3 The Client grants to Marguild LLC and its permitted affiliates, agents, and sub-contractors a non-exclusive, royalty-free license to make use of such Confidential Information for the duration of the Agreement for the purposes of carrying out the Services.
6.4 On Client's request, Marguild LLC will promptly return any Confidential Information and delete it from electronic storage, and delete or destroy all extracts or analyses that reflect any Confidential Information.
7. INTELLECTUAL PROPERTY RIGHTS, DATA PROTECTION & OWNERSHIP
7.1 Except for Intellectual Property Rights vested with Marguild LLC, all ownership rights, title, and interest in and to Services will vest with Client. These Conditions do not grant Marguild LLC any rights, title, or interest in or to Client's Intellectual Property Rights, other than those set out in these Conditions. Intellectual Property Rights created by modifications, amendments, enhancements, or improvements to Client's Intellectual Property Rights, or made using Client's Confidential Information, will vest with Client or its nominee when created.
7.2 Marguild LLC, warranting that it is entitled to do so, grants to Client the irrevocable, non-exclusive, perpetual, worldwide, royalty-free right and license, with the right to grant sub-licenses, to possess and use any of Marguild LLC's Intellectual Property Rights embodied in Services, including the right to import, export, operate, sell, maintain, modify, and repair Services. Marguild LLC warrants that any possession or use of Deliverables as delivered by Marguild LLC or of Marguild LLC's Intellectual Property Rights will not infringe the Intellectual Property Rights of any third party.
7.3 Marguild LLC shall maintain copies of Deliverables issued in accordance with its record retention policies and document retention policies as may be required by law or accreditation bodies.
7.4 Client's ownership rights in Services under this article will not extend to Marguild LLC's Intellectual Property Rights that:
- Pre-existed the performance under the Agreement;
- Are developed independently from performance of the Agreement; or
- Are used by Marguild LLC in connection with or to perform the Agreement, but are not based on or arising out of Client's Intellectual Property Rights or Confidential Information.
8. LIABILITY
8.1 Marguild LLC accepts liability for:
- 8.1.1 All claims, losses, costs, and liabilities arising from death, sickness, or injury to a Marguild LLC employee, agent, servant, or officer caused solely by Marguild LLC's negligence; or
- 8.1.2 Damage to or loss of property or equipment owned, rented, or leased by Marguild LLC, however caused.
8.2 The Client accepts liability for:
- 8.2.1 All claims, losses, costs, and liabilities arising from death, sickness, or injury to any employee, agent, servant, or officer of Marguild LLC, occurring on the Client's premises or while performing tasks at the Client's request, provided that such death, sickness, or injury is not solely caused by Marguild LLC's negligence; or
- 8.2.2 Damage to or loss of vessels, property, or equipment owned, rented, chartered, or leased by the Client or any third party; or
- 8.2.3 The costs of any incident of pollution including clean-up costs and any financial penalties imposed arising in association with the conduct of the work, however caused.
8.3 Marguild LLC bears no liability for consequential loss. For the purpose of this clause, consequential loss shall include, without limitation:
- 8.3.1 Indirect or consequential loss;
- 8.3.2 Any loss and/or deferral of production, loss of product, loss of use, loss of bargain, loss of revenue, loss of profit or anticipated profit, loss of business, and business interruption, in each case whether direct or indirect.
8.4 The Client shall defend, release, save, indemnify, and hold harmless Marguild LLC from the Client's own consequential loss or any third party's consequential loss, regardless of cause.
8.5 In the event that the Client proves that the loss, damage, delay, or expense was caused by the negligence, gross negligence, or willful default of Marguild LLC aforesaid, then, save where loss, damage, delay, or expense has resulted from the consultant's personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay, or expense would probably result, Marguild LLC's liability shall be limited to the lesser of:
- Two times Marguild LLC's charges; or
- $100,000 per incident or series of related incidents.
8.6 Marguild LLC's total aggregate liability in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed $100,000.
8.7 The Client agrees that it will not bring any claim against any individual employee or officer of Marguild LLC in respect of any loss or damage suffered by the Client in connection with the Agreement.
8.8 Marguild LLC shall not be liable for any delay or failure in performing any of its obligations under this Agreement if such delay or failure is caused by circumstances beyond its reasonable control (including, without limitation, any act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of suppliers or sub-contractors), provided that Marguild LLC promptly notifies the Client of such delay or failure and uses its reasonable efforts to resume performance as soon as possible.
8.9 The Client shall ensure that its premises and equipment comply with all applicable laws, regulations, and safety standards, and shall provide a safe working environment for Marguild LLC's personnel. The Client shall indemnify and hold harmless Marguild LLC against any claims, losses, costs, and liabilities arising from the Client's failure to comply with this clause.
8.10 The limitations and exclusions of liability set out in this Clause 8 shall apply whether the liability arises in contract, tort (including negligence), breach of statutory duty, or otherwise.
9. PROFESSIONAL LIABILITY INSURANCE
9.1 The Parties shall effect and maintain, at no cost to the other Party, Professional Liability Insurance for such loss, damage, and liability for which the Party may be held liable to the other Party.
10. SUSPENSION
10.1 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Marguild LLC on the due date, Marguild LLC may suspend all Services until payment has been made in full.
11. TERMINATION
11.1 Either Party may terminate the Agreement after giving a thirty (30) days' notice of termination to the other Party in writing.
11.2 All fees, expenses, disbursements, and outstanding obligations incurred by Marguild LLC shall be paid up until the date of the termination.
12. FORCE MAJEURE
12.1 Any delay in performance under the Agreement that arises out of an event that cannot have reasonably been foreseen shall be considered a Force Majeure and will not render either Party in breach of the Agreement.
13. MISCELLANEOUS
13.1 The Agreement for Services, inclusive of these Conditions, constitutes the complete contractual agreement between Marguild LLC and the Client.
13.2 The Agreement for Services, inclusive of these Conditions, supersedes all previous agreements for the same Services between Marguild LLC and the Client and excludes all other statements, conditions, terms, and warranties both expressed and implied and those provided by law or statute unless they cannot be excluded by law or statute.
13.3 Where the Courts determine that a term or terms of these Conditions are unreasonable, such terms shall be excluded from the Conditions whilst the remainder of the Conditions shall remain valid in its entirety.
13.4 Neither Party shall assign or otherwise dispense with its rights or obligations under the Agreement without the written agreement of the other.
13.5 If Marguild LLC does not enforce any of their rights under the Agreement this shall not be interpreted to imply that such rights have been waived during the currency of this or any future Agreements.
13.6 Any variations of the Agreement are to be agreed in writing and signed by authorized representatives of both parties to the Agreement.
13.7 No amendments, changes, or modifications to these Conditions shall be valid except if the same are in writing and signed by a duly authorized representative of each of the Parties hereto.
13.8 Your continued instruction to Marguild LLC will be taken as acceptance of these terms and conditions.
14. GOVERNING LAW & DISPUTE RESOLUTION
14.1 These Conditions shall be governed and interpreted by the laws of the State of Texas.
14.2 Any disputes arising between Marguild LLC and the Client shall be resolved by an arbitrator to be appointed by the American Arbitration Association in arbitration proceedings conducted in accordance with the Rules of the American Arbitration Association.
14.3 The number of arbitrators shall be three (3). The place of arbitration shall be Houston, TX, USA. The language of dispute and arbitration shall be the English language. The arbitration decision shall be final and binding on the Parties. The Parties agree that the proceedings shall be confidential.
14.4 Notwithstanding clause 14.2, disputes relating to the payment of Marguild LLC's invoices may be submitted by Marguild LLC to the Courts of Texas, or to any other competent local Court, at Marguild LLC's entire discretion.
15. CODE OF ETHICS
15.1 Each Party shall conduct all activities in compliance with all laws, statutes, rules, economic and trade sanctions (including but not limited to US sanctions) and regulations applicable to such Party including but not limited to: child labor, forced labor, collective bargaining, discrimination, abuse, working hours and minimum wages, anti-bribery, anti-corruption, copyright and trademark protection, personal data protection. Each of the Parties warrants that neither it, nor its affiliates, has made or will make, with respect to the matters provided for hereunder, any offer, payment, gift, or authorization of the payment of any money directly or indirectly, to or for the use or benefit of any official or employee of the government, political party, official, or candidate.
16. ACCEPTANCE
16.1 Your continued instruction to Marguild LLC will be taken as acceptance of these terms and conditions.