These terms and conditions of business form the contract (“Contract”) between Breakingwave Services SASU and the party at whose request or on whose behalf Breakingwave Services SASU undertakes the engineering consulting services (the “Client”).
In the event that there is a written letter of engagement from Breakingwave Services SASU to the Client (the “Engagement Letter”), then this document, together with the Engagement Letter, forms the Contract between Breakingwave Services SASU and the Client.
1. Definitions
“Engineering Consultant” is Breakingwave Services SASU, the engineering consultant trading under these conditions.
“Client” is the party at whose request or on whose behalf the Engineering Consultant undertakes the Services under these conditions.
“Report” means any report or statement supplied by the Engineering Consultant in connection with instructions received from the Client.
“Disbursements” means the cost of all reasonable third party costs incurred in the provision of the Services including, but not limited to, calculations, calculation model database, spreadsheets, Calculation routines and programs, reports, tests, drawings, maps, photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable and appropriate expenses including travel, subsistence and hotel accommodation where an overnight stay is necessary.
“Fees” means the fees charged by the Engineering Consultant to the Client and including any value added tax where applicable and any Disbursements.
“Services” means the services to be provided by the Engineering Consultant to the Client under the Contract, together with any other services which the Engineering Consultant provides or agrees to provide to the Client.
2. Scope
The Engineering Consultant shall provide its services solely in accordance with these terms and conditions, which together with any Engagement Letter, form the Contract.
3. Work
The Client will set out in writing the Services which it requires the Engineering Consultant to provide. The Engineering Consultant will, where possible to do so, confirm in writing that it accepts those instructions or alternatively set out what Services it will perform in connection with the Client’s instructions. Once the Engineering Consultant and the Client have agreed the Services are to be performed, any subsequent changes or additions must be agreed by both parties in writing. For the avoidance of doubt, if the instructions are not provided in writing but the Engineering Consultant nevertheless confirms their acceptance of these, the services will be provided in accordance with these conditions.
4. Payment Terms
The Client shall pay the Engineering Consultant’s Fees punctually in accordance with these conditions and in any event not later than 30 days following the relevant invoice date, or in such other manner as may have been agreed in writing between the parties. Any delay in payment shall entitle the Engineering Consultant to charge interest at 8% above the Base Lending Rate of the Bank of France prevailing at the time of default, and to withhold any documents or property of the Client.
5. Obligations and Responsibilities
(a) Client:
(i) The Client undertakes to ensure that full, accurate, and unambiguous information and instructions are given to the Engineering Consultant and are provided in sufficient time to enable the required Services to be performed effectively and efficiently. The Client acknowledges that the Engineering Consultant is entitled to rely on such information and instructions without verification and shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous information and/or instructions.
(ii) The Client undertakes to procure all necessary access for the Engineering Consultant to any data, goods, premises, vessels, installations and transport as may be required and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions. The Client shall be liable to the Engineering Consultant, its employees and subcontractors, for any loss of or damage to property or death or personal injury, including any consequential losses therefrom, arising out of or in connection with any access provided or any equipment or other item placed at its disposal by or on behalf of the Client, however such loss, damage, death or injury occurs. The Client, or a third party on their behalf, will brief the Engineering Consultant on how to operate and use any such equipment or item and will highlight any dangers associated with the use of such equipment or item.
(b) Engineering Consultant: The Engineering Consultant shall use reasonable care and skill in the performance of the Services in accordance with sound marine engineering/consulting practice.
(c) Delivrables
The Deliverables and the Services produced by the Engineering Consultat are for the benefit of the Client only and to be used only for purposes agreed upon between the parties. Where permission is agreed to provide the report to a third party, unless otherwise agreed, the entire report with all disclaimers must be provided – not selected sections which can be read out of context. If only sections are provided the disclaimers and context must be included.
Unless expressly agreed by Engineering Consultant in writing, the Engineering Consultant accepts no responsibility to anyone else, and the Client will indemnify and hold the Engineering Consultant harmless should they suffer any loss, damage or expense due to the Client using the Report and/or Services outside the agreed scope of use or disclosing it to third parties without the Engineering Consultant’s authorisation.
(d) Confidentiality: The Engineering Consultant undertakes not to disclose any information provided in confidence by the Client to any third party and will not permit access to such information by any third party unless the Client expressly grants permission, save where required to do so by an order of a competent court of law, or where required to its advisers, auditors or insurers. If information is provided by the Client in confidence, the Client undertakes to make it clear in writing what information is provided in confidence.
This undertaking shall not apply to:
the provision of information to sub-contractors in order for them to perform the Services sub-contracted, provided that similar confidentiality obligations apply to them; and
information which:
would not reasonably be considered to be confidential;
was already in the public domain;
was already in the Engineering Consultant’s possession; or
was developed by the Engineering Consultant.
All such obligations of confidentiality will expire 12 months after the date of the report (or final report where there is more than one).
(e) Property:
(i) The copyright and right of ownership in respect of all original work created by the Engineering Consultant remains the property of the Engineering Consultant.
(ii) The Client shall ensure that the Engineering Consultant is permitted to use any third party information or intellectual property rights which the Client requires the Engineering Consultant to use to perform the Services and/or which the Engineering Consultant will require to perform the Services.
6. Liability
(a) The overall liability of the Engineering Consultant under the present terms is limited to direct material damages caused to the Client resulting from duly proven faults attributable to the Engineering Consultant. Under no circumstances shall the Engineering Consultant be liable to compensate for indirect or consequential damages, whether or not resulting from material damage, such as, in particular, operating losses, production losses, loss of earnings, loss of profit, loss of contract, loss of image, loss of opportunity, commercial prejudice, additional production costs, idle personnel or equipment, as well as any indirect damage.
(b) In any event, the overall and cumulative liability of the Engineering Consultant under and in connection with the Contract, excluding personal injury, wilful misconduct or gross negligence, shall not exceed the net amount (excluding taxes) of the Contract or €50 000, whichever is lower.
(c) The Client and its insurers, for whom the Client acts as guarantor, waive any right of recourse against the Engineering Consultant and its insurers beyond the limits and exclusions set out above.
7. Indemnity
Except to the extent and solely for the amount therein set out that the Engineering Consultant would be liable under Clause 6, the Client hereby undertakes to keep the Engineering Consultant and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them, and against and in respect of all costs, loss, damages and expenses (including, but not limited to, legal costs and expenses on a full indemnity basis) which the Engineering Consultant may suffer or incur (either directly or indirectly) in the course of the Services.
8. Force Majeure
The Engineering Consultant and/or the Client shall not, except as otherwise provided in these Conditions, be responsible or have any liability for any loss, damage, delay or failure in performance hereunder arising or resulting from an act of God (including, but not limited to earthquake, flood, tsunami, volcano, hurricane, tropical storm, cyclone, blizzard or other similar event), act of war, terrorist attack, nuclear contamination, seizure under legal process, epidemic quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people. Following a force majeure event either party may serve notice on the other to terminate the Contract.
9. Sanctions
The Client warrants that it is not, at any point on entering into the Contract and throughout the duration of the provision of the Services, a sanctioned party or in breach of any sanctions and that provision of the Services to the Client will not put the Engineering Consultant in breach of sanctions.
If at any time during the performance of the Services, the Engineering Consultant becomes aware that the Client is in breach of this warranty, it may terminate the Contract with immediate effect.
The Client shall indemnify the Engineering Consultant against any and all claims, losses, damages, costs and fines whatsoever suffered by the Engineering Consultant resulting from any breach of this warranty.
10. Engineering Consultant’s Right to Sub-contract
The Engineering Consultant shall have the right to sub-contract any of the Services provided, subject to the Client’s right to object on reasonable grounds. In the event of such a sub-contract the Engineering Consultant shall remain fully liable for the due performance of its obligations under these Conditions and Contract.
11. Time Bar
Any claims against the Engineering Consultant by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the submission date of the Report or the end of the provision of the Services to the Client, whichever is the later.
12. Jurisdiction and Law
These Conditions and the Contract shall be governed by and construed in accordance with the laws of France and any dispute arising out of or in connection with it, shall be subject to the exclusive jurisdiction of the French Courts.