1 Definitions and interpretation
Background Intellectual Property Rights means any Intellectual Property existing before the Commencement Date, and any Intellectual Property created or acquired after the Commencement Date independently of this Agreement.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Queensland are open for business.
Commencement Date has the meaning set out in clause 2 (b).
Company means MER Solutions Asia Pacific Pty Ltd (ACN 623 196 994) of 48 Coutts Street, Bulimba, Queensland, 4771 Australia
Client means the individual or company for whom the Company is engaged to supply the Services.
Confidential Information includes:
a) any information marked as confidential;
b) any information that would be regarded as confidential by a reasonable business person; and
c) and any information received or developed by the recipient during the term of this Agreement, which is not publicly available and relates to the vessels, processes, equipment and techniques used by the discloser or any officers, employees, agents, clients or third party inspectors of the discloser, in the course of business including all products and services, fees, costs and pricing structures, financial and trading information, business plans, accounting and business methods, analyses, reports, databases, computer software (including operating systems, applications and program listings), source or object code, manuals and documentation, data, drawings, specifications, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information, customer lists and client information, account files, travel agents and travel agent lists, charter contracts, workshops, suppliers, salesmen and salesmen lists, technology and trade secrets and all similar and related information in whatever form.
Data means all text, pictures, sound, graphics, video and other data provided by the Client and entered into the Software. To be clear, once de-identified, the Data is not Confidential Information of the Client.
Data Back-up means making a daily copy of Data stored in connection with the Software.
Fees means the Company’s fee and all other charges and expenses payable for the Services as set out in the Order or Specification or otherwise in any agreement (including any heads of agreement or memorandum of understanding) entered into between the Company and the Client.
Inspection Data means all text, documents, certificates, pictures, sound, graphics, video and other data arising and captured during the inspection and/or pre-inspection of a vessel. To be clear, once de-identified, the Inspection Data is not Confidential Information of the Client.
Intellectual Property includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Order means the Client’s order for Services as set out in the Client’s purchase order or the Client’s written acceptance of a quotation by the Company, as the case may be.
Parties means the Client and the Company, and Party means either one of them.
Report means the report to be prepared by the Company in accordance with the Specification and the Order, in whatever form or medium or format, wherever located or stored.
Specification means the description of the Services provided in writing by the Company to the Client.
Software means the software owned or licenced by the Company, known as the Maritime Applications Platform and the MER Vet Platform.
Services means the services performed by the Company for the Client under this Agreement, including but not limited to vessel inspection services, vetting, consultancy services and technical support as described in the Order or Specifications relevant to those services.
Termination Date means the earlier of:
a) the date of termination of this Agreement by the Company or the Client; and
b) the Completion Date
Trade Marks means BVIQ and TVAQ.
In this Agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses and paragraphs are references to the relevant clause or paragraph in this Agreement;
- any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses of this Agreement are not to affect the interpretation;
- any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment;
- the word "including" (and related forms including "includes") will be understood as meaning "including without limitation"; and
- The Order constitutes an offer by the Client to engage the Company to provide the Services in accordance with the terms and conditions of this Agreement.
- The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Agreement shall come into existence (Commencement Date).
- Other than any Order, Specification or other agreement that is incorporated into this Agreement (but overridden by this Agreement to the extent of any inconsistency with this Agreement), this Agreement contains the whole agreement between the Parties in respect of the subject matter of this Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
- Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
- Any descriptive matter or advertising issued by the Company are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3 The Company’s Rights and Obligations
- The Company shall supply the Services as set out in the Specifications for or on behalf of the Client in accordance with the Agreement and in consideration for the Fees.
- The Company shall use all reasonable endeavours to meet any performance dates specified in the Order. Any such dates are estimates only and time should not be of the essence.
- The Company 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, and the Company shall notify the Client in any such event.
- The Company shall use reasonable care and skill in the performance of the Services, in accordance with normal professional standards within the shipping industry.
- The Company will promptly notify the Client in writing of any conflict of interest or lack of suitable qualifications or certifications amongst the available officers, employees or agents of the Company or third party inspectors engaged by the Company, which would render the Company unable to perform the Services in accordance with normal professional standards within the shipping industry.
- The Company, shall when on a vessel and/or any premises for the supply of Services as it may be, comply with the reasonable instructions of the vessel masters, including any instructions relating to workplace health and safety procedures for the vessel. The relevant officers, employees and agents of the Company, including any third party engaged by the Company, will attend any induction or training sessions scheduled by the Client, at a time to be agreed between the Parties, at the Client’s expense.
- The Company will comply with any reasonable Client policies on sanctions, anti-bribery and corruption where written notice of these policies, including complete copies of the policies in the English language, are provided to the Company no more than two (2) business days after the Commencement Date. The cost of compliance with the Client policies and time taken to review the Client policies will be at the Client’s expense.
- Subject to and in accordance with the Agreement, and without notice to the Client, the Company shall be entitled to procure performance of its obligations by appointing a suitably qualified and skilled third party to perform the Services on its behalf. Any performance of the Company’s obligations by the third party shall be and constitute full and sufficient performance by the Company of its obligations under this Agreement. The Company shall remain solely responsible to the Client for the acts and omissions of the third party.
- The Company will maintain professional indemnity insurance for the duration of the Agreement, in the amount of $5 million. The Company will maintain workers compensation insurance for its officers and employees for the duration of the Agreement.
4 Limitation of the Company’s Liability
- The Company is not liable to the Client in contract, tort (including but not limited to negligence) or otherwise for:
- any loss of business, cost or expense of any nature, delay, opportunity, expectation, reputation, use, business income, profit, anticipated profit, revenue, goodwill or contracts suffered by the Client howsoever caused; or
- any special, indirect or consequential loss suffered by the Client howsoever caused.
- To the extent permitted by law, the Company is not liable for any direct loss, damage, delay or expense to the Client, except where the loss, damage, delay or expense is due to the gross negligence or wilful default of the Company.
- Where the Company’s liability to the Client is not excluded under Clauses 4 (a) or 4 (b), liability is limited to the lesser of:
- The Fee paid under this Agreement; or
- The amount of the payout for the claim under the Company’s professional indemnity insurance.
- If the Company or any third party inspector engaged by the Company performs the Services (or any part of the Services) negligently, in breach of this Agreement, then if requested by the Client, the Company will re-perform the relevant part of the Services. The Client's request must be made before the earliest of:
- 3 months from the Completion Date; or
- The date the vessel leaves port.
- The Client acknowledges and agrees that the Company will not be liable for any delay in completion of the Services due to:
- any failure by the Client to pay any invoice by the due date, any failure by the Client to make the vessels accessible at the time, date and location proposed by the Company or agreed between the Parties, or any failure by the Client to comply with any of its other obligations under this Agreement, or
- any other matter outside of the control of the Company such as any delay in issuance of any Visa or other government documentation.
- Except to the extent the Company would be liable under clause 4 (a) and (b) hereof, the Client hereby agrees to keep the Company and its representatives indemnified and hold them harmless against any actual or threatened claim, demand, action, proceeding or liability of any nature arising in any manner against the Company or any of its representatives or otherwise incurred or suffered by the Company or any of its representatives and in respect of all costs, loss, damage, expense (including, without limitation, legal costs and expenses on a full indemnity basis) which may be suffered by the Company or any of its representatives arising from or in connection with the performance, purported performance or non‐performance of the Services.The Client’s obligation set out in this clause 4 (f) shall survive termination of the Agreement
5 Reliance on Reports and Inspections
- The content of the Report is Confidential Information and will not be disclosed to any third parties by the Client, except as authorised under this Agreement or required by law. Further the Report is a copyright work owned by the Company or its Related Entities, and licensed to the Client for the sole use by the Client. The Company does not authorise any reproduction, distribution or disclosure of the contents of the report to any third party without the prior written consent of the Company.
- By entering into this Agreement the Client is taken to have expressly authorised the Company to distribute and disclose any Inspection Data and any Report relating to the inspection and/or vetting of a vessel to the company holding the Document of Compliance for any relevant vessel (DOC Company).
- The Client agrees and acknowledges that:
- The Company has prepared the Report in reliance upon and with reference to any instructions, information and Data provided by the Client or recorded by the Company at the time of the Company providing the Services and any conclusions contained in any Reports must be read and interpreted by reference to such limitations;
- Whilst undertaking the Services, the Company has been limited to those areas of a vessel which are visible, exposed, uncovered, readily accessible and made available to the Company;
- The Company has performed the Services subject to the Order or Specifications and is under no obligation to refer to or advise upon in any Report any facts or circumstances which are outside the Order or Specifications and the Client agrees that the Company is not liable for the omission of any facts or circumstances which are not included in the Order or Specifications; and
- the Client (and not the Company or its representatives) is solely and exclusively responsible for any decision, act or omission undertaken by the Client or any substitute on the basis of any Report provided by the Company.
- Reports are subject to the limitations of the Inspection Data collected during inspection or review of the vessel, including inaccessibility or lack of visibility of certain areas or items on the vessel, and any inaccuracy or incompleteness of any Data provided to the inspector by the Client or any person on the vessel. Any report issued does not constitute a comprehensive statement of all non-conformities which may exist on the vessel. Any report issued is not a statement of seaworthiness nor a guarantee for any policy of insurance with respect to the vessel or the ability of any Client to perform its obligations under any contract. The company expressly disclaims any liabilities or indemnities of any kind resulting from the contents of any Report, anything omitted from any Report, or the use of or reliance on any Report by any person.
6 Client rights and obligations
The Client warrants to the Company that:
- the terms of the Order and any information it provides in the Specifications are complete and accurate.
- the Client has obtained and will maintain all necessary licences, permissions and consents or other government documentation required by the Company to perform the Services before the date on which the Services are to start.
- the Client will co-operate fully with, assist, and comply with all reasonable requests of the Company (including any officer, employee or independent contractor engaged by the Company to assist in the provision of the Services) to facilitate performance of the Services.
- the Client will provide the Company, its employees, agents, consultants and subcontractors with access to the vessel, premises, office or other facilities as reasonably required by the Company to conduct any part of the Services. This includes making all necessary arrangements, at the Client’s expense, to provide safe and secure transfer of any inspectors from the port of docking of the vessel to the vessel itself.
- the Client will provide all information and documentation that the Company reasonably requires to perform the Services and ensure that such information and documentation is complete, accurate and up to date.
- the Client will notify the Company of all relevant health and safety, environmental, operational and security policies and procedures from time to time in force at the vessel, premises and/or the relevant port authority at the location at which the vessel is situated including, without limitation, all requirements for accessing and boarding the vessel and accessing confined spaces within the vessel itself; and
- The Client warrants that the vessels will be in compliance with all workplace health and safety regulations, as well as any other security and environmental regulations or guidelines and indemnifies the Company relating to any death, personal injury or property damage to any officer, employee or agent of the Company or any substitute inspector or their equipment while or resulting later from boarding, disembarking or being on any vessel due to any negligence of the Client or any of its officers, employees or agents, including any failure to comply with any workplace health and safety regulations, or other security and environmental regulations or guidelines, or to warn the Company of any risk, evacuation procedure or other relevant information.
7 Fees, Expenses and payment terms
- In consideration of the provision of inspection Services, the Client will pay the Company the Fees.
- The Fees for the Services shall be calculated on a time and materials basis and:
- The Fees shall be calculated in accordance with the Company’s standard daily fee rates, as set out in the Order.
- The daily rate for each individual is calculated based on an eight-hour day. Time worked shall be recorded in 30 minute increments.
- Any increases in Fees related to changes to the Specification, shall be calculated in accordance with the standard daily rate set out in the Order.
- The Company shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, meals and any associated expenses, and for the cost of services provided by third parties and required by the Company in the performance of the Services, and for the cost of any parts and materials (Expenses). All Expenses will be charged at cost plus a 15% handling fee.
- The Company may require some or all of the Expenses outlined in clause 7 (c) to be paid immediately and the Company shall be entitled to refuse to provide the Services specified in the Order until payments are received in cleared funds. Such payments shall be deducted from the invoice submitted to the Client.
- The Company may elect to invoice the Client upon completion of the Services or monthly in arrears for the Fees and Expenses relating to each month, or otherwise as specified in the Order or Specification.
- The Client acknowledges that the Fees and Expenses listed in any Order or Specification will be exclusive of any GST, VAT or other applicable taxes and duties, that may be charged by the Company to the Client, and therefore, the Company may be entitled to add on GST, VAT or other applicable taxes and duties.
- The Company must provide the Client with a tax invoice in accordance with the GST Law in relation to the Fees and any Expenses payable under this clause 7. Payment must be made by the Client to the Company within 30 days of the date of the invoice or as otherwise agreed.
- In the event that the Client disputes the total amount charged in any invoice, the Client will pay the Company the undisputed amount within 30 days of the date of the invoice and then resolve the dispute regarding the remainder in accordance with the dispute resolution procedures outlined in clause 13.12.
- In the event that any part of any invoice remains unpaid after 30 days of the date of the invoice, without limiting other remedies available to the Company:
- the Client will pay interest of 1.5% per month on any overdue balance until the invoice is paid in full; and
- the Company may, at its sole discretion, cease to perform any Services under the Agreement until all overdue invoices are paid in full.
8 Disaster Recovery
- The Company, or any third parties appointed by the Company, will create Data Back-up and, in the event of Data corruption or equipment failure, will restore the data from the Data Back-up.
- The Client acknowledges and agrees that the Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, except as specifically required by this Agreement.
- To the full extent permitted by law:
- clause 8 (a) sets out the Company’s entire obligation with respect to disaster recovery and loss of data; and
- the Company hereby excludes all liability to the Client arising from any loss of, or corruption of data, other than liability arising directly from a breach by the Company of clause 8 (a).
9 Disclosure and ownership of Intellectual Property
- All Background Intellectual Property Rights shall remain vested in that Party. Nothing in this Agreement is intended to transfer Background Intellectual Property Rights from either Party to the other.
- The Client acknowledges that all Intellectual Property rights arising out of or in connection with the Services, including any Report, will vest in the Company immediately upon their creation and will be owned by the Company or its Related Entities.
- The Company grants to the Client a non‐exclusive, royalty‐free, perpetual, worldwide licence to make use of any Report for the purpose provided in the Specification or otherwise as provided in the Agreement.
- The Company owns all the Data and Inspection Data entered into the Software, legally and beneficially, in perpetuity, and shall be entitled to use the Data and Inspection Data, including for the purpose of developing products and services, and shall be entitled to sell, reproduce and re-distribute the Data and Inspection Data, in its discretion.
- The Client warrants that the use by the Company or any person authorised by the Company of any Data assigned under this clause will not amount to breach of any third party Intellectual Property rights, Moral Rights or any other rights or laws.
- The Trade Marks, copyright in any software accessed under license by the Client or otherwise used in performance of the Services, copyright in any content on the website of the Company, copyright in any questionnaire or Report, and Data and Inspection Data collected by the Company or entered into any software used in performance of the Services are the exclusive Intellectual Property rights of the Company or its Related Entities and the Client shall not in any way infringe the Intellectual Property rights of the Company.
- Except as required by law, the Company 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 the Client, its employees, agents or subcontractors, and any other Confidential Information, including Data, Inspection Data, or information or results contained in any Report produced by the Company or its independent contractors about the Client or its vessels. The Company shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Company’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Company.
- Except as required by law, the Company shall not disclose the Report to third parties, without the prior written consent of the Client.
- Notwithstanding of clause 10 (a) and (b), the Client hereby consents to the Company’s disclosure of the Report and Inspection Data to the vessel’s DOC Company in accordance with Clause 5 (b).
- Each Party agrees that the other Party may require any of its officers, employees or agents to sign a confidentiality agreement in an approved form.
- The obligations accepted by the Parties under this clause 10 survive termination or expiry of this Agreement.
- This Agreement commences on the Commencement Date and ends when the Services have been performed in full.
- Either Party may terminate this Agreement by notice in writing to the other if the Party notified fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 5 days’ notice of the breach being given in writing by the notifying Party to the other Party.
- Notwithstanding anything in this Agreement to the contrary, either Party may terminate this Agreement at any time by notice in writing to the other Party, if the other Party or any officer, employee or agent of the other Party is guilty of any dishonesty, serious misconduct or serious neglect of duty, in or in connection with this Agreement.
- Either Party may terminate this Agreement without cause by notice in writing to the other upon the giving of at least 10 days written notice by one Party to the other Party of the intention to terminate this Agreement.
- The Client may, at its discretion, pay to the Company the equivalent amount of the Fee payable by the Client to the Company during the notice period in lieu of any notice period relating to termination of this Agreement.
- Any termination of this Agreement will not affect any rights or liabilities accrued prior to the Termination Date.
- Upon termination of this Agreement, the Company may issue a final invoice for any Fees or Expenses incurred up to the Termination Date. All Fees or Expenses payable by the Client to the Company in respect of any period prior to the Termination Date must be paid by the Client within 14 days after the Termination Date.
- Upon termination of this Agreement for any reason, the Client must deliver, and require that its employees, agents and subcontractors deliver, to the Company all property of the Company and any inspectors engaged by the Company which are in the possession or control of the Client or the Client's officers, employees or agents at the date of termination.
- Upon termination of this Agreement for any reason, the licence to access the Software immediately ceases. Thereafter the Client may not access or use the Software.
- Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12 No employment relationship
Nothing in this Agreement constitutes the relationship of employer and employee between the Client and the Company or between the Client and any inspector engaged by the Company. It is the express intention of the Parties that any such relationships are denied.
13.1 Force majeure
Neither Party will have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than four (4) weeks, either Party may terminate this Agreement immediately by giving written notice to the other Party. All Fees and Expenses incurred up to the Termination Date, shall be payable as per clause 11 (g). To be clear, pandemics, epidemics or other public health events will not constitute a force majeure event.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
- This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors and legal representatives.
- Subject to clause 3(c), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
- A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
- No failure or delay by the Company in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same. No single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
13.5 Agency, partnership etc
- This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
- Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
The Client shall not solicit officers, employees or agents (including any substitute inspectors engaged by the Company) of the Company for the purpose of inducing them to perform services directly for the Client or otherwise join the Client or any substitute’s employ during the course of this Agreement and for a period of twelve (12) months after the Termination Date. This clause survives termination of the Agreement.
13.7 Further assurance
Each Party to this Agreement will at the request and expense of the other, execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement. This severance will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
- Subject to paragraph 9(b), no Party may issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms.
- No Party is prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
Notice is deemed to have been received by the receiving Party if served:
- personally, on the day the notice was handed to the relevant officer of the Party;
- by post to the address of the registered office of the Party, on the second business day after posting; or
- by email to the parties’ designated email address or addresses specified in the Order or Specification, if transmitted during normal business hours on a Business Day on the same date it was transmitted or otherwise on the next Business Day after transmission.
13.11 Dispute Resolution
The Parties intend to settle any dispute arising out of this Agreement by negotiations using reasonable endeavours. If any such dispute cannot be settled in this intended manner after twenty-eight (28) calendar days, the Parties will appoint a Queensland Law Society approved mediator and make at least one attempt to mediate the dispute within fifty-six (56) calendar days of the dispute arising. If the mediation is not successful in resolving the dispute, the Parties may exercise their rights to resolve the dispute in the courts, in accordance with clause 13.12.
13.12 Law and jurisdiction
- This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Queensland, Australia.
- The Parties submit to the non-exclusive jurisdiction of the courts of Queensland.
This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument. Delivery of an executed signature page of a counterpart or in Portable Document Format (PDF) sent by electronic mail shall take effect as delivery of an executed counterpart of this Agreement.