SELLER’S GENERAL TERMS AND CONDITIONS
These Terms and Conditions (“T&C”) in conjunction with the Service Agreement (the Agreement”), and the Invoices issued by Marlab Laboratory and Testing Ltd in relation to each confirmed order shall collectively form the “Contract” and will contain all agreed terms between the Seller and the Buyer in respect of the supply of the Services.
- GENERAL PROVISIONS
1.1. It is irrevocably state that the “Contract”, shall be the only and exclusive terms agreed and accepted between the parties to regulate the sales and purchase of the Services, unless the Seller has previously accepted in writing otherwise.
1.2. In entering into the Contract, the Buyer has not relied upon any statements or representations made by the Seller.
1.3. Any provision in these Conditions which may be invalid or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision(s) in these Conditions.
1.4. The Seller may assign, transfer or sub-contract any or all of its rights and obligations arising under, by reason of, or in connection with the Contract without the Buyer’s consent. The Buyer shall not assign, transfer or sub-contract any or all of its rights and obligations arising under, by reason of, or in connection with the Contract.
1.5. If any one or more provisions of these General Terms Conditions are found to be illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.6. In case of a conflict between the Service Agreement and these T&C, the Service Agreement shall prevail.
1.7. Seller reserves the right to change and/or amend and/or remove any of the provisions terms and conditions contained in the T&C as well as, any policy and/or guideline of Seller’s Services at any time at Seller’s sole discretion. The revised terms shall be effective as from the publication date at Seller’s website.
2.1. “Applicable Law” means all laws, ordinances, rules, regulations, bylaws, Decrees, order and the like whether of governmental, federal, supranational, local authority or other agencies or authority or any of them and which the parties are or may be bound to.
2.2. “Buyer” means any individual and/or legal entity which will be purchasing the Service from the Seller. For all legal effects, Buyer shall be considered vessel owners’ representatives.
2.3. “Confidential Information” means any information, however conveyed or presented, that relates to the business, technical information (including software), affairs, operations, customers, processes, budgets, pricing policies, product information, product specifications, strategies, developments, trade secrets, know- how, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked ‘confidential’), or which ought reasonably to be considered to be confidential;
2.4. “Contract” means this T&C, the Service Agreement, and the relevant invoices in relation to the Services.
2.5. “Fee” means the price paid for the Services as agreed on the Service Agreement.
2.6. “GDPR” means the General Protection Regulation (EU) 2016/679, applicable as of May 25th, 2018, and any future amendments thereto.
2.7. “Intellectual Property Rights” means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trade-marks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions;
2.8. “Seller” means Marlab Laboratories and Testing Ltd. offering and selling its Services to any potential Buyer.
2.9. “Service” means any type of onboard fuel, – lubricant, – or water analysis offered by the Seller, including (but not limited to) related services such as performing surveys or providing test kits.
2.10. “Service Agreement” means the Agreement executed by the Buyer and the Seller for the provisions of the Services offered by the Seller.
- SAFETY, HEALTH, AND ENVIRONMENT:
3.1. The Buyer shall inform the Seller on any real or potential safety, health, and environmental hazard which may be relevant to the tests and/or any necessary safety measures required, prior to or during the performance of the tests.
3.2. In the event, that the Seller is performing any work on site, the Buyer shall provide all adequate safety measures to ensure a working environment that is safe and in accordance with all relevant legislation.
- TRANSPORTATION OF SAMPLES TO THE SELLER’S LABORATORY:
4.1. Transportation of samples to the Seller’s laboratory is subject to the IATA prevalent regulations. The Seller offers this service subject to these regulations, however if the local government or other authorities of the place from which the sample is being shipped or of an intermediate place through which the sample moves in transit imposes extraordinary restrictions on transport of the samples, the Seller is not obliged to transport the sample and the Seller is not liable for non-compliance of contractual obligations or warranties. The Seller may however endeavor to transport the sample by complying with the extraordinary regulations wherever possible, provided the Buyer expressly agrees to bear any additional/abnormal costs that the Seller may incur, and the Buyer agrees to any consequent delays to the contractual obligations in meeting such extraordinary regulations.
4.2. If due to any reason, the Buyer requests the Seller to arrange for testing in a laboratory other than the Seller’s laboratory, the Seller reserves the right to comply with this request. If the Seller chooses to comply with such a request, it is under the express condition that the same is arranged by the Seller without any contractual warranties or obligations on part of the Seller. Additionally, the Seller will charge an additional cost for compliance with such request.
4.3. If the sample arrives in the Seller’s laboratory in a condition in which the sample’s integrity appears to be compromised or the integrity is in doubt, then the Seller shall notify the Buyer of the same. The Seller does not accept any responsibility for the loss in the integrity of the sample due to circumstances beyond the Seller’s control.
4.4. Where an unauthorized air courier has been used by the Buyer and the courier charges are paid by the Seller upon receipt of sample at destination, Seller will reserve the right to recover the difference in costs plus a handling and administration fee of $ 30 (USD) per sample from the Buyer.
4.5. The Buyer may also opt to arrange its own transportation of samples. In such cases, Seller reserves the right to levy a handling and administration fee of $ 30 (USD) per sample to the Buyer for each sample received at the Seller’s laboratory.
4.6. Seller assumes no responsibility for delay, breakage, or damage of the sample. Shipment of samples shall be made in the manner and by the carrier requested by the Buyer, but where questions arise concerning stability of carriers for handling the samples the decision of the Seller must be accepted. Shipment of samples being held upon Buyers’ request at any place, for whatever reason, shall be at the Buyers’ sole risk and account, including payment by the Buyer of all storage and interest charges.
4.7. In case of misuse of the Seller’s courier account / prepaid airway bills either deliberately or inadvertently by the Buyer, his representatives, his agents, his employees, or subcontractors, including the vessel’s Agent, the Seller will charge the Buyer for any costs associated with such misuse, including nominal administrative/legal costs.
4.8. The receipt of a Buyer’s sample in the Seller’s laboratory is considered a confirmed purchase order and the Seller will proceed immediately with the analysis of the sample, unless explicitly agreed/instructed otherwise.
5.1. The selling price shall be that which is stated in and has been agreed to in advance by the Seller and Buyer, per the SERVICE AGREEMENT. Unless otherwise stated in the Seller’s invoice the Price shall be inclusive of Value Added Tax (where appropriate) but exclusive of any packing, transportation costs, freight and insurance which shall be arranged and paid for by the Buyer. All bank charges, import duties or taxes are at the sole risk and account of the Buyer.
5.2. The Seller shall have the right of recourse to collect all fees, costs, and expenses (including any reasonable legal fees) incurred by the Seller as a consequence of the breach of this Agreement by the Buyer.
5.3. The Price (including any prepayment agreed), shall be paid by the due date specified in the Seller’s invoice. Payment shall be made by the Buyer net of charges and without any deductions or set off whatsoever.
5.4. Time for payment of the Seller’s invoice shall be of the essence.
5.5. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of (2) % per month, pro rata.
- SENDING OF SAMPLES WITHOUT TESTING
6.1. The Buyer has the obligation to inform the Seller in writing about a vessel going out of the Buyer’s management or control or when the vessel is scrapped or sold and the Buyer will remain responsible for the tests carried out and the complete amount billed for the test(s) conducted for such vessel till such time on which such communication is received or the time on which the vessel ceases to be outside the Buyer’s control as detailed above, whichever is later.
6.2. In the event the Buyer sends samples to any of Seller’s labs and cancels the analysis of such sample(s) prior to any analysis being carried out, the Buyer shall be responsible for a $80 (USD) fee to cover the cost of transportation to the lab and for the handling of the sample.
The results of all regular analyses of samples submitted under this Agreement will be sent by e-mail to the address of the Buyer. The report will be made out in e-mail format as required by the Buyer. The reports will also be made available online to the Buyer. Pertinent information from the Sample Report Sheet accompanying the sample will be included in the e-mailed report.
Seller may, without affecting the obligations under this contract, make normal and customary variations in specifications.
- ARCHIVING AND RETENTION PERIOD OF REPORTS AND SAMPLES
9.1. The Buyer will be furnished details of all information relating to his/her samples at any time upon request for a period of one year from the date of test. Online analysis records shall be maintained throughout the validity of this agreement and for 12 months after its termination. Samples remaining after testing will be stored for 30 days from date of test, subject to Safety and Health issues. If the Buyer requires storage of the remaining sample for a period longer than 30 days, the Seller reserves the right to levy a nominal fee, of $ 30 (USD) per month, for the same.
9.2. Seller reserves the right to levy Buyer a disposal fee of $ 5 (USD) per sample for disposal of the bottle and the contents of the bottle after the first month of storage.
- ACCEPTANCE OF SAMPLING KITS
10.1. Seller shall deliver the sampling kits as described in the Service Agreement, upon receiving the order, the Buyer shall examine the received kits and shall have 48 hours from the delivery date to notify the Seller in writing, of any defects or deficiency in quality or quantity. If no notice is received within this period, the order is considered accepted.
10.2. Seller has no policy refund or return policies. Seller shall not have any obligation to refund or receive back any kits confirmed as accepted.
- CANCELATION OF SERVICES/ORDERS
In the event that the Buyer, for whatever reason alters or amends the Services or orders:
11.1. Buyer shall be responsible to pay all and any additional and unexpected costs that such alteration or amendment to the Services or order may have caused.
11.2. In the event the Buyer sends samples to any of Seller’s labs and cancels the analysis of such sample(s) prior to any analysis being carried out, the Buyer shall be responsible for a $ 80 (USD) fee to cover the cost of transportation to the lab and for the handling of the sample.
- GOVERNING LAW AND ARBITRATION:
12.1. Any and all claims, disputes, and differences arising under, relating to, or otherwise connected with this Agreement will be governed by, construed, and enforced in accordance with the Laws of England and Wales, without giving effect to any principles of conflicts of law.
12.2. Any and all claims, disputes, and differences arising under, relating to, or otherwise connected with this Agreement will be determined by arbitration in London / UK. pursuant the Arbitration Act 1996 and the Rules of the London Maritime Arbitrators Association – LMAA Terms 2021, hereinafter “the Rules”, which are hereby incorporated by reference. Any and all arbitration proceedings will be confidential and before a single arbitrator to be appointed in accordance with the said Rules. The decision of the Arbitrator on any point or points will be final and binding upon the Parties. Until such time as the Arbitrator formally closes the hearings, either party will have the right by written notice served on the Arbitrator and on the other party to specify further disputes or differences arising under, relating to, or otherwise connected with this Agreement for hearing and determination. The Arbitrator may grant any relief which the tribunal may, deems just and equitable and within the scope of the agreement of the Parties, including, but not limited to, specific performance. The Arbitrator may further award costs, including a reasonable allowance for attorney’s fees, and judgment may be entered upon any Award in any court of competent jurisdiction.
- FORCE MAJEURE
The Seller shall not be liable in damages for any failure to delivery or any delay in performance under this agreement to the extent said failure or delay are proximately caused by causes beyond the control of Seller or Acts of God, calamity, government restrictions (including the denial or cancellation of any export or import or other necessary permits or license), war, insurrection, civil commotion, accidents, fire, sabotage, failure of Sellers, subcontractors, carriers, failure of electronic communication or any other cause beyond the reasonable control of the Seller.
- LIMITED WARRANTY:
14.1. Seller warrants to Buyer that the services provided hereunder shall conform in all material respects to the specifications described herein.
14.2. The warranty stated above is a limited warranty and it is the only warranty made by Seller. Seller does not make, and Buyer specifically waives, all other warranties or representations of any kind, expressed or implied. Specifically excluded are all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. In no event, shall Seller be liable for any loss of business or profits, or for any consequential, incidental, punitive or similar damages, or for the claims of damages made by any third party even if it has been advised of the possibility of such damages. The stated express warranty is in lieu of all liabilities or obligations of Seller arising out of or in connection with this Agreement.
14.3. The stated express warranty is in lieu of all liabilities or obligations of Seller arising under, relating to, or otherwise connected with this Agreement.
- LIMITATION OF LIABILITY
BUYER AGREES THAT REGARDLESS OF THE FORM OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR GROSS NEGLIGENCE, SELLER’S LIABILITY FOR ALL CLAIMS, DISPUTES, AND DIFFERENCES ARISING UNDER, RELATING TO, OR OTHERWISE CONNECTED WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF TEN (10) TIMES THE PRICE OF SERVICES RENDERED UNDER THIS AGREEMENT OR USD $10,000.
- CONSEQUENTIAL DAMAGES
BUYER WAIVES ALL CLAIMS, DISPUTES, AND DIFFERENCES ARISING UNDER, RELATING TO, OR OTHERWISE CONNECTED WITH THIS AGREEMENT THAT SEEK DAMAGES FOR OR RESULTING FROM ANY LOSS OF OPPORTUNITY, LOSS OF BUSINESS, BUSINESS INTERRUPTION, SUPPLY CHAIN INTERRUPTION, TURNOVER, LOSS OF GOODWILL, LOSS OF PRODUCT, DEALINGS WITH ANY THIRD PARTIES, LOSS OF PROFIT, OR OTHER SIMILAR ITEMS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THAT THEY ARE FORESEEABLE AND EVEN IF SUCH DAMAGES MAY BE THE RESULT OF THE BREACH OF CONTRACT, NEGLIGENCE, GROSS, NEGLIGENCE, OR FAULT OF SELLER.17.2 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THAT THEY ARE FORESEEABLE AND EVEN IF SUCH DAMAGES MAY BE THE RESULT OF THE BREACH OF CONTRACT, NEGLIGENCE, GROSS, NEGLIGENCE, OR FAULT OF SELLER.
No waiver by any party of any breach of any provision hereof shall constitute a waiver of any other breach of that or any other provision hereof.
- STANDARD TAX CLAUSE
18.1. All Fees and Costs for Services rendered by MARLAB LTD (directly or by any MARLAB LTD affiliate or by any subcontractor) do not include taxes (including but not limited to value added taxes or their equivalent), levies, imposts, stamp duties, charges or withholding taxes and all liabilities with respect thereto of whatsoever nature or kind (collectively referred to as “Taxes”) which will be invoiced to Buyer in accordance with applicable law
18.2. Any and all payments made by Buyer shall be made free and clear of, and without withholding or deduction of, any Taxes, unless such withholding or deduction is required by applicable law and/or by applicable double tax treaties. Buyer shall promptly provide MARLAB LTD with evidence of such payment and copies of all documentation submitted with each such payment.
18.3. The Parties shall use their best endeavors to obtain a refund of the deductions or a recovery of any applicable Tax and will support each other in their obligations in this respect. Any Tax refunded will be reimbursed according to entitlement.
19.1. Use of the Seller’s corporate name or registered marks for advertising purposes is not permitted without the Seller’s prior written authorization.
19.2. The Parties shall follow the applicable Data Protection Legislation, Data Protection Legislation means the Regulation (EU) 2016/679 (“GDPR”) together with any other data protection laws, regulations, regulatory requirements, instruments, guidance, and codes of practice applicable to the Parties on the performance of their obligations.
Buyer shall guarantee, hold harmless and indemnify the Seller and its officers, employees, agents, or subcontractors against all claims (actual or threatened) by any third-party for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising relating to the performance, purported performance or non-performance, of any services.
21.1. All analysis data and Buyer information is stored in the Seller’s reporting and tracking system. The data stored in Seller’s system is the sole property of the Seller but will not be divulged to any third party without the prior written consent of the Buyer.
21.2. Buyer and Seller both agree to maintain the confidentiality of the terms and conditions including the fees, survey numbers etc. referred to in this Agreement and will not divulge to any third party without the prior written consent of the other concerned Party.
21.3. Seller and Buyer may disclose information to their subcontractors without prior written consent to the extent necessary to complete the work.
21.4. The Buyer shall keep the fee structure confidential as charged by the Seller and not disclose this to any third party as this may result in commercial losses and thereby the Seller will be entitled to exercise its rights and remedies.