Terms of Business

SALE, SERVICE, BROKERAGE and GENERAL TERMS

V. 2019-3 / effective 04-09-2019

Customer agrees to buy Vessels and/or Equipment from Company and/or purchase General and/or Brokerage Services from Company in accordance with the Contract, which incorporates these terms and conditions (“Terms and Conditions”).

Definitions. The following definitions apply to the capitalized terms used in these Terms and Conditions:

“Company” means Stern Offshore B.V., a company registered in the Netherlands.

“Contract” means (a) these Terms and Conditions, including the Sales Terms, Service Terms, and General Terms, and (b) the agreement to which these Terms and Conditions are attached, or which incorporates these Terms and Conditions.

“Customer” means the person or entity that is purchasing the Vessel and/or Equipment, or purchasing the General and/or Brokerage Services, under the Contract.

“Vessel” means any kind or type of ship or maritime asset (whether ocean-going, sea-going, inland waterway or coastal), construction vessel, support vessel, offshore platform, barge (self-propelled or otherwise), floating dock, floating production platform or similar.

“Equipment” means any kind or type of equipment – including but not limited to cranes, helidecks, sensors, tools, modules or mission equipment – with purpose to be installed on or in a Vessel, whether permanently or temporary.

“Services” means the services described in the Contract that Company will perform for Customer.

“Brokerage Services” means the services rendered by Company as a shipbroker for the conclusion of Transactions (including for the sale, purchase, construction or charter) in respect of a Vessel and / or Equipment.

“Commission” means Company’s remuneration in the form of an agreed percentage of the total Transaction value.

“Transaction” means a contract or contracts for, inter alia, the sale, purchase, conversion, construction or charter of a Vessel together with Negotiations to conclude such contracts.

“Negotiations” means exchanges, whether verbal or in writing, conducted by or with Company (or on its behalf) with any party (other than the Customer alone) with a view to concluding a Transaction.

“General Terms” means the terms in Part D of these Terms and Conditions.

“Sale Terms” means the terms in Part A of these Terms and Conditions.

“General Service Terms” means the terms in Part B of these Terms and Conditions.

“Brokerage Service Terms” means the terms in Part C of these Terms and Conditions.

A          SALE TERMS

  1. Applicability. All sales and purchase transactions of Vessels and/or Equipment between Company and Customer under the Contract are governed by the Sale Terms and the General Terms.
  2. Vessels and/or Equipment. No term or condition of any purchase order or other document from Customer related to the sale of Vessels and/or Equipment from Company will become a part of the Contract between the parties or bind Company, and Company objects to all different and additional terms in Customer’s purchase order and other documents. Company’s sale of Vessels and/or Equipment to Customer is expressly conditioned on Customer’s acceptance of the Contract.
  3. Price; Payment. a) The purchase price of the Vessels and/or Equipment will be specified in the Contract or Purchase Order. The purchase price does not include any sales, use, revenue, excise or other taxes or governmental charges (collectively, “Taxes”), all of which Customer will pay. b) If Company is required to collect any Taxes, Company will add them to the purchase price and invoice Customer (in the original invoice or separately), and Customer will pay the invoice. Company will invoice Customer when Company delivers the Vessels and/or Equipment as specified in Section A4 below, and Customer will pay the total invoiced amount within 30 days after the date of Company’s invoice. The date of any payment will be the date Company receives the payment. c) No partial payment by Customer will constitute an accord and satisfaction or otherwise satisfy the entire outstanding balance of any Company invoice, notwithstanding any notation or statement accompanying that payment.
  4. Delivery; Cancellation; Rescheduling. a. All prices are net of any delivery charges, all of which Customer will pay. Company will deliver the Vessels and/or Equipment to Customer latest Incoterms EXW at Company’s facility, and all risk of loss will pass to Customer at that point. Company will not be responsible for any damage to the Vessels and/or Equipment caused by a carrier, and Customer’s sole recourse for that damage will be against the carrier. All delivery schedules and dates given by Company are estimates only. b. If Customer cancels all or part of any order, Customer will reimburse Company for all non-recoverable costs of materials, labor, cancellation charges by third parties and other costs that Company has incurred, and Customer will pay Company an additional cancellation charge of 10% of the total amount of the order or portion of the order cancelled. c. If Customer reschedules a delivery, Customer agrees to reimburse Company promptly for all rescheduling, handling, storage and other costs and expenses Company incurs in connection with the rescheduling.
  5. Title. Ownership and title in the Vessels and/or Equipment will remain with Company and will not pass to Customer until Customer has paid to Company the sale price in full, notwithstanding delivery of the Vessels and/or Equipment to the Customer or to any independent carrier or any third party. Until ownership of the Vessels and/or Equipment has passed to Customer in accordance with this Section A5, Customer will (a) store the Vessels and/or Equipment at Customer’s expense separately from all other goods of Customer or any other third party in such a way that they remain readily identifiable as Company’s property, and (b) not destroy, deface, or obscure any identifying mark or packaging on or relating to the Vessels and/or Equipment.
  6. Default; Remedies. The occurrence of any of the following will constitute an event of default by Customer: (a) Customer’s failure to pay any sum to Company as and when due; or (b) Customer’s default under any other provisions of the Contract which is not cured within 10 days after Company gives Customer written notice of default. Upon the occurrence of an event of default, and in addition to any other rights and remedies that Company may have, Company will have the right, at its option, to take one or more of the following actions: (i) declare all or part of Customer’s obligations to Company immediately due and payable; (ii) suspend its performance under or terminate pending Contracts; and (iii) pursue its other rights and remedies under the Contract and applicable law. All amounts Customer does not pay as and when due will accrue interest at the rate of 15% per annum until paid in full. If Customer defaults under its obligations to Company, Customer will pay Company all costs of collection, including reasonable attorneys’ fees and costs.
  7. Insurance. Customer will maintain at all times until it has paid the purchase price (and all other amounts) for the Vessels and/or Equipment in full, with an insurer reasonably satisfactory to Company, property damage insurance on the Vessels and/or Equipment for its full insurable value and will provide to Company from time to time thereafter at Company’s request, a valid and current insurance certificate showing Company as loss payee and providing that Company will receive at least 10 days prior written notice of any modification or cancellation of the insurance policy.
  8. Security Interest. Customer grants Company a continuing first-priority security interest in all Vessels and/or Equipment Company sells to Customer and all proceeds of that Vessels and/or Equipment to secure the purchase price and all other sums due with respect to that Vessels and/or Equipment. Company will be entitled to file UCC financing statements, continuation statements, and all other documents and instruments necessary or desirable to evidence, perfect, and continue Company’s security interest in the Vessels and/or Equipment and proceeds.

B          GENERAL SERVICE TERMS

  1. Applicability. If the Contract states that Company will perform Services for Customer, then the General Service Terms and the General Terms will govern Company’s performance of those Services.
  2. Services. Company shall use commercially reasonable efforts to perform the Services. Company shall determine the method, details, and means of performing the Services. Company may subcontract some or all of the Services. Company shall perform the Services in a professional manner in accordance with the applicable Contract. Company shall re-perform any Services that do not conform to that standard if Customer gives Company written notice of the non-conformity within 5 business days after Company performs the Services. If Company does not give Customer such written notice, Customer will be deemed to have accepted the Services. Customer’s sole and exclusive remedy with respect to the Services is the remedy set forth in this Section B2 of the General Service Terms.
  3. Change Orders. Customer may request changes to the Services. Any change order shall be in writing and shall only be effective when executed and delivered by both parties. Any requested change to the Services may require additional time and compensation.
  4. Price. Customer will pay Company for the Services in accordance with the price and payment terms in the Contract. It is often difficult to determine at the beginning of an engagement the full nature and extent of the services necessary to perform a task. Therefore, estimates in the Contract regarding the total cost of Services are not binding. If Company performs for Customer any follow-up or additional work not included within the scope of the Services, Company will charge Customer for that work at Company’s then current rates.
  5. Payment. Company will invoice Customer on the last day of each month, and Customer will pay all invoiced amounts within 30 days after the date of the invoice. All invoices will include all taxes and other governmental charges due in connection with the Contract or the Services, all of which Customer will pay. Company’s failure to invoice Customer for an amount due will not be a waiver of that amount, and Company may invoice Customer for that amount at a later date.
  6. Expenses. Customer will be responsible for all costs Company incurs in performing the Services, including costs of photocopying, travel, long distance telephone calls, express mail, lodging, and meals. Company will either advance such costs on Customer’s behalf or ask Customer to pay them directly or in advance. If Company pays the fees in advance on Customer’s behalf, Company will deliver periodically to Customer an invoice listing all the expenses Company incurred in providing the Services, along with reasonable backup documentation. Customer will pay each invoice within 30 days after Customer receives it.
  7. Customer’s Obligations. Customer shall provide reasonable assistance to Company in connection with the Services, including providing access to records, information, systems, and personnel reasonably required by Company to perform the Services. Customer shall be responsible for procuring all software, hardware, and equipment and obtaining any necessary permission from the vendors for Company to perform its services using that software, hardware, and equipment. Customer shall designate a single point of contact for the coordination of all activities and issues related to the Services. Customer shall be responsible for (a) complying with all applicable laws, ordinances, and regulations related to the Services and Customer’s facilities, including, if applicable, the Outer Continental Shelf Lands Act, and (b) providing Company’s personnel a safe work environment free of known safety or health hazards. More specific Customer obligations may be described in the applicable Contract, and Customer will comply with them.
  8. Non-Company Vessels and/or Equipment. If Customer directly or indirectly instructs Operator to operate any vessel or equipment other than the Vessels and/or Equipment, the Operator will be under the supervision of Customer with respect to that work, and Customer shall be responsible for and shall indemnify Company from and against all claims, losses, damages, costs (including legal costs), expenses, and liabilities, which arise out of or relate to the Operator’s operation of any such vessel or equipment, including but not limited to any claims alleging (i) personal injury or death to Customer’s employees, agents, or contractors, or any third party, or (ii) loss of or damage to the property of Customer, its employees, agents, or contractors, or any third party, irrespective of the cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of Company, the Operator, or any third party.
  9. Proprietary Rights. Company shall retain all rights in the intellectual property, copyrights, trade secrets, software, tools, inventions, patent rights and methods it uses to perform, or develops during the performance of, the Services, and Customer shall have no rights in them.

C           BROKERAGE SERVICES TERMS

  1. Applicability. If the Contract states that Company will perform Brokerage Services for Customer, then the Brokerage Service Terms and the General Terms will govern Company’s performance of those Services.
  2. Role. Company’s role is to facilitate the conclusion of Transactions and, where so agreed, to act as an agent for and on behalf and in the interest of the Customer for the purpose of permitting the conclusion of Transactions in accordance with the Customer’s instructions.
  3. No Principal. Unless specifically agreed in writing Company will act solely as an intermediary in relation to Transactions and will not enter into any Transactions, arising from the Services, as a principal. Company is not responsible for the performance or non-performance of Transactions or any counterparties
  4. Obligations of Company. Company will perform the Services with the reasonable skill, care and diligence expected of a professional shipbroker, in the same manner as if Company was acting for its own account, exercising diligence to seek to comply with any applicable laws, rules and regulations including those in relation to money laundering, bribery and corruption.
  5. Representation; warranty. In dealing with others Company will stay within the authority given by the Customer and exercise diligence to avoid misrepresentation. During Negotiations Company shall pass on offers, counteroffers and other such communications accurately and in a timely manner. This obligation applies to passing communications both to and from the Customer. It is understood that Company may be dealing with representatives or other brokers rather than directly with a Transaction counterparty. In such cases Company is dealing with such representatives or other intermediaries in good faith as to the authority they possess but Company does not give a warranty as to that authority. Company will, where requested, provide information in respect of a counterparty, including information regarding corporate structures or financial standing, but it is understood and agreed that where it does so, it provides such information in good faith but without guarantee. It is the sole obligation of the Customer to satisfy itself of any counterparty risk and to decide whether to enter into a Transaction with a proposed counterparty and on what terms and, where necessary, to verify by independent means the information so provided by Company. Company’s duties shall not include advice of a tax, legal or accounting nature, and no advice given by Company shall be deemed as advice on such issues.
  6. Exclusivity. Unless otherwise agreed in writing the Services are not provided on an exclusive basis and it is understood that Company may provide services to other parties in relation to similar Transactions and Services.
  7. Confidentiality. Where Company is given information stated by the Customer to be on a confidential basis or it is expressly agreed that a Transaction is confidential (in either case “Confidential Information”) Company will hold that Confidential Information in confidence and will not disclose it to any other party without prior permission from the Customer. This obligation will not however extend to information which (i) was already or becomes known to Company through other sources not subject to such an obligation of confidentiality (ii) is or becomes part of the public domain generally other than as a result of a breach of this obligation or (iii) which Company is obliged to disclose pursuant to an order of a court or other such authority. In all cases such obligation of confidentiality shall be deemed to end one (1) year after the end of performance of the Transaction/Services in question or in the absence of a concluded Transaction one (1) year from the end of the Negotiations.  This clause 4 shall survive termination of the Contract. Unless otherwise agreed, Company may use the Customer’s name and trademark and a description of the Vessel in marketing material produced by Company.
  8. Obligations of the Customer. The Customer warrants that at the time of contracting with Company and at all other relevant times (i) it has the full power and authority to engage Company to provide the Services and (ii) to instruct Company to enter into, arrange or execute any Transaction brought about by the Services. The Customer warrants that it has adequate resources to enter into and perform any Transaction arising out of or in connection with the Services and that it will deal with Company in good faith at all times.
  9. Engagement. Where Brokerage Services are provided, the Customer is deemed to have engaged Company in relation to any Transaction that arises in connection with those Brokerage Services whether or not it is concluded via Company.
  10. Communication. The Customer will provide Company with all information and instructions necessary for the performance of the Services in good and sufficient time. If Company has asked the Customer to use specific e-mail addresses for messages, then the Customer undertakes to use those e-mail addresses. Company will have no responsibility for a failure to take action in relation to information or instructions contained in a message not sent to the correct address. The Customer will take care to avoid misrepresentations occurring in Negotiations. The Customer will carefully review all messages sent to, or copied to, the Customer and promptly advise Company of any errors or misrepresentations. Company is not responsible for the consequences of a failure by the Customer to review messages.
  11. Brokerage Commission. In relation to Transactions, Company’s Commission will (unless otherwise agreed) be in the form of a Commission calculated as agreed percentage of the total Transaction value which may consist of the purchase price and/or conversion contract and/or charter hire as the case may be. The level of the Commission payable and the party responsible for payment will be agreed in writing by Company with the Customer or be set out in the Negotiations and the Transaction. If the Commission payable to Company is recorded in a clause in the contract or document evidencing the Transaction, then the Commission will be payable in accordance with that clause. Company will be deemed to have acted in reliance on the insertion of such clause and assented to the terms of the clause governing its right to Commissions. Unless otherwise agreed, the Broker Commission is to be paid concurring with any and all payment(s) under the Transaction. In case Company is dealing with other broker(s) rather than directly with the Transaction counterparty, the fees and/or commissions payable to this third-party broker(s) will be agreed and recorded separately from the Broker Commission in a clause in the Transaction documentation.
  12. Commission payments. If the Customer is the party agreed to be responsible for paying the Commission, it undertakes to Company that it shall make the payment or payments. If the Customer is not the party responsible for making payment of the Commission, the Customer expressly agrees to provide all necessary assistance and co-operation to Company to obtain the prompt payment of such Commission by the counterparty. Nothing in these terms will prevent, limit or restrict Company from enforcing a clause in respect of its Commissions or other clause conferring a benefit on it as a third party in accordance with the terms of the Transaction. In the absence of any specific provisions to the contrary contained in the Transaction, any Commission payable on charters is due and payable as a percentage of sums due for charter hire, (de-)mobilization fees and demurrage throughout its duration, including any period of continuation or extension of the charter. Commissions due and payable as a percentage of sums which are, as relevant, received or payable by the Customer are payable as and when such sums are, as relevant, received or paid, exclusive of any right of set-off, and the Customer will not withhold payment pending resolution of unconnected matters.
  13. Commission percentage. If the amount of any Commission and/or the manner of its payment is not specifically agreed, a reasonable fee will be payable in accordance with market practice, with a minimum commission rate of 2.5%.
  14. Miscellaneous. Company has a general lien on all documents in its possession or control for all sums due from the Customer to Company arising out of the Transaction or the Services.

D          General Terms and Conditions Applicable to Sale of Vessels and/or Equipment, General Services and Brokerage Services

  1. Applicability. The General Terms govern Company’s sale of Vessels and/or Equipment to Customer and Company’s performance of General and Brokerage Services for Customer.
  2. Compliance. Customer shall promptly obtain, at Customer’s expense, all permits, licenses, authorizations, and other consents and permissions required for the parties to undertake the obligations contemplated by this Contract. Moreover, the Vessels and/or Equipment and Services may be subject to anti-bribery, corruption, and/or export control laws, such as the Export Administration Regulations, the International Traffic in Arms Regulations, the Foreign Assets Control regulations, the Bribery Act and the Foreign Corrupt Practices Act. Customer is responsible for (a) determining whether licenses or other authorizations are required under applicable law, including licenses governing export, re-export, deemed export, or deemed re-export, (b) obtaining any such required licenses or authorizations from the United States government and any other relevant government in a timely manner, (c) obtaining all required licenses and other authorizations necessary for the return of the Vessels and/or Equipment, and (d) ensuring that no unauthorized transfers or diversions of the Vessels and/or Equipment occur. Customer will also comply with all applicable laws, statutes, regulations, and codes relating to bribery, corruption, anti-trust, money laundering, trade sanctions, financial sanctions, and criminal matters, including, if applicable, the Foreign Corrupt Practices Act. Company may, at its sole discretion, suspend its performance under the Contract or terminate the Contract at any time and without liability if it believes in good faith that Customer has breached or is likely to breach any of the obligations it has undertaken pursuant to this Section D2. Customer shall indemnify Company from and against any losses, liabilities, penalties, damages, costs, taxes, levies, duties, claims, expenses (including but not limited to legal fees and investigation expenses) and any associated fines and penalties incurred by, or awarded against, Company as a result of the breach of Customer’s obligations under this Section D2, regardless of whether such breach is caused by Customer, persons associated with the Customer, persons working for Customer, or any third party retained by the Customer.
  3. Non-circumvention. Company may introduce Customer to companies or other entities that may have an interest in Company’s General and/or Brokerage Services. It is understood that Company retains ownership of such a referral and that Customer cannot deal directly with such referred company without Company’s written consent. This non-circumvention provision shall expire at the end of two (2) years from the termination of the Contract.
  4. Payment. Notwithstanding the Payment terms stipulated under sections A, B or C, Company may, at its sole discretion, invoice Customer at different intervals or before delivery of Vessels and/or Equipment and/or performance of Services and require Customer’s prompt payment of all invoiced amounts. Any such payments will be treated as stipulated under Section D5.
  5. Deposit. Company may require Customer to deposit with Company a security deposit (“Deposit”), and Company may delay performance of its obligations under the Contract until Customer has paid the Deposit to Company. If Customer fails to pay any sum to Company as or when due under the Contract, or if Customer damages, destroys, or loses any Vessels and/or Equipment, Company may deduct from the Deposit all amounts Customer owes Company. Company will return to Customer any unpaid balance on the Deposit within 21 days after Customer returns the Vessels and/or Equipment in accordance with the Contract.
  6. Delivery. Customer will provide at the delivery point designated in the Contract and at Customer’s expense adequate and appropriate equipment and manual labor for unloading/loading the Equipment. The quantity of any Equipment that Company records when dispatching Equipment to Customer will be conclusive evidence of the quantity Customer received on delivery unless Customer can provide conclusive evidence to the contrary. If Customer fails to accept delivery of any Equipment when it is ready for delivery in accordance with the Contract, or if Company is unable to deliver the Equipment because Customer has not provided appropriate instructions, documents, licenses, authorizations, equipment, or labor, then (a) risk of loss with respect to the Equipment will automatically pass to Customer, (b) the Equipment will be deemed to have been delivered, and (c) Company may store the Equipment until delivery, and Customer will be liable for all related costs and expenses, including storage and insurance.
  7. Notices. Any notice permitted or required under the Contract will be deemed given if it is in writing and is (a) delivered personally, (b) deposited with FedEx Overnight Service, certified mail, return receipt requested, (c) sent by facsimile to the facsimile numbers Company and Customer specify to each other from time to time, or (d) sent by email to the email addresses Company and Customer specify to each other from time to time.
  8. Default; Termination. Customer will be in default under the Contract if Customer: (a) fails to pay any sum to Company as and when due; (b) fails to comply with any other provision of the Contract and does not cure that noncompliance within 10 days after Company gives Customer written notice of default; (c) places the Vessel and/or Equipment at risk of damage, destruction or loss, or encumbers the Vessels and/or Equipment, in Company’s reasonable judgment. If Customer defaults under the Contract, (d) Company may, in addition to its other rights and remedies under the Contract and applicable law, enter any location where the Vessels and/or Equipment is and repossess the Vessels and/or Equipment without judicial process or notice, and (e) Customer will pay Company its reasonable attorney’s fees and expenses in connection with collecting all amounts due under the Contract, obtaining possession of the Vessels and/or Equipment, and defending all Claims arising out of or relating to Customer’s breach of the Contract. Customer waives any right of action against Company for any such entry or repossession. All past due amounts will bear interest at the lower of 18% per annum or the highest rate allowed by law until paid in full. Company will also have the right to terminate the Contract at any time for Company’s convenience by giving Customer written notice of termination, and if Company elects to terminate the Contract, Customer will promptly return the Vessels and/or Equipment to Company in accordance with the Contract.
  9. Warranty; Disclaimers. a. Limited Warranty. Company represents and warrants to Company that (a) it is authorized to sell the Vessel and/or Equipment to Customer in accordance with the Contract, and (b) it will perform the Services in a professional manner. b. Disclaimers. Company makes no warranties or guarantees regarding the production, performance, or economic benefit Customer may obtain from the Vessels and/or Equipment or Services.
  10. Limitations. a. Regardless of the theory of recovery, Company’s liability with respect to the Contract, including any sale of Vessels and/or Equipment and any Services, will not exceed the amount Customer has paid to Company under the Contract within the 12-month period preceding the act or omission giving rise to the claim. Company will not be liable for any late delivery or for the condition of the Vessels and/or Equipment. b. Company will not be liable under any circumstances for any special, indirect, incidental, consequential or punitive damages arising out of or related to the Contract, the Vessels and/or Equipment, or the Services, including lost revenues or profits, regardless of the theory of recovery and regardless of whether Company is informed of the possibility of those damages. c. Any action or proceeding by Customer arising out of or relating to this Contract will be forever barred unless it is commenced within the earlier of: (a) one year after the claim or cause of action has accrued; or (b) the period prescribed by applicable statute of limitation or repose.
  11. Indemnification. a. Vessels and/or Equipment. CUSTOMER WILL DEFEND, INDEMNIFY AND HOLD HARMLESS, COMPANY AND ALL OF ITS SUBSIDIARIES AND AFFILIATES AND ALL OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, “INDEMNIFIED PARTIES”) AGAINST ALL CLAIMS (AND ALL RELATED LOSSES, DAMAGES, ATTORNEYS’ FEES AND EXPENSES) (COLLECTIVELY, “CLAIMS”) FOR (i) INJURY TO OR DEATH OF ANY PERSON, (ii) DAMAGE TO, DESTRUCTION OF, OR CONTAMINATION OF ANY REAL OR PERSONAL PROPERTY, (iii) VIOLATION OF ANY ENVIRONMENTAL OR OTHER LAW OR REGULATION, OR (iv) VIOLATION OF ANY SAFETY REQUIREMENT, BASED IN WHOLE OR IN PART ON (1) THE VESSELS AND/OR EQUIPMENT, (2) THE USE, POSSESSION OR CONTROL OF THE VESSELS AND/OR EQUIPMENT BY ANY PERSON OR ENTITY, (3) THE SERVICES; OR (4) COMPANY’S OR ANY OPERATOR’S PERFORMANCE OF THE SERVICES. Customer’s obligation under this Section D11 to indemnify, defend, and hold harmless the Indemnified Parties will include any Claim that results from the negligence, fault or conduct of one or more of the Indemnified Parties; provided that Customer will not be required to indemnify, defend or hold harmless the Indemnified Parties under this Section D11 for any Claim based solely on Company’s negligence or violation of applicable law. If any part of this Section D11 is determined to be invalid by a court of competent jurisdiction, Customer agrees that this release and indemnification will be enforceable to the fullest extent permitted by applicable law. b. Procedure. Company will give Customer prompt written notice of any Claim under this Section D11, will permit Customer to conduct the defense of such claim as long as Customer confirms in writing that such Claim is within Company’s indemnification obligations, and will provide, at Customer’s expense, reasonable cooperation in the defense of such Claim.
  12. Force Majeure. Company will not be liable for delays or failure to perform directly or indirectly resulting from events and causes beyond Company’s reasonable control, accidents, acts of God, acts and omissions of any governmental authority, declared or undeclared wars, terrorism, strikes or other labour disputes, fires, floods, earthquakes, storms, epidemics and other natural calamities, changes in the law, and delays in obtaining or the inability to obtain labour, equipment, materials or services through Company’s usual sources at normal prices. Dates or times by which Company is required to perform under the Contract shall be postponed automatically for so long as Company is prevented from performing by any act of or failure to act by Customer.
  13. Miscellaneous. Sections D8, D9, D10, and D11 of these General Terms will survive the termination of the Contract for any reason. Company has the right to file Uniform Commercial Code financing statements and all other documents and instruments necessary or desirable to evidence, maintain and protect Company’s ownership of and interest in the Vessels and/or Equipment. Customer may not assign to any person or entity all or any portion of its rights or obligations under the Contract or with respect to any Vessels and/or Equipment without Company’s prior written consent in each instance, and any attempted assignment without that consent will be void. Company is an independent contractor, and nothing in the Contract will be construed as creating a partnership, joint venture, agency or fiduciary relationship between the parties.
  14. Jurisdiction and Law. This Contract and any dispute or claim arising out of or in connection with it including its subject matter or formation (including any non-contractual obligations dispute or claims) shall be governed by and construed in accordance with the laws of the Kingdom of the Netherlands and any dispute between Company and Customer shall be referred to Rotterdam District Court. Any action or proceeding relating to the Contract or a breach of the Contract will be commenced and heard exclusively in the Dutch courts, and the parties consent and submit to the jurisdiction and venue of those courts. Any waiver under the Contract must be in writing and signed by the waiving party to be effective. No failure or delay by any party in exercising any right, power or privilege under the Contract will operate as a waiver. The term “including” will not be construed to be limiting. The Contract will be binding on, and will inure to the benefit of, the parties and their respective successors, heirs and permitted assigns. The Contract constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous understandings, agreements, usages of trade and courses of dealing regarding the subject matter. The Contract may only be modified by a written agreement signed by both parties.