Telemar’s general terms and conditions
The following GT&C apply to Customers and/or its end users using Telemar’s Equipment and Services under a Contract. Capitalized terms used in a Contract and herein shall have the meaning set out in article 32. The headings used herein are solely for the purpose of reference and shall have no substantive meaning in construing, interpreting or applying the provisions of these GT&C.
Index of contents
- Purpose and scope
- Charges, invoices, payment and taxes
- Purchase of Equipment
- Supply of spare parts
- Customer’s general rights and obligations
- Importation and exportation of Equipment and spare parts
- Export control and sanctioned counties
- Compliance with laws
- Gifts and payments
- Term and termination
- No third-party benefits
- Representations and warranties
- Limitation of liability
- Force Majeure
- Personal data (GDPR)
- Independent contractor relationship
- Entire agreement
- Surviving clauses
- Governing law and arbitration
- Intellectual Property
- Business ethics
- Safety and travel restrictions
- PURPOSE AND SCOPE
- These GT&C shall control and govern all transactions between the Parties and all Telemar Equipment and Services provided to or used by the Customer under a The applicability of the Customer’s purchasing or other terms and conditions is explicitly rejected.
- The Customer’s request for Equipment and/or Services shall be set out in a dedicated Contract.
- The applicable Contract may not be modified, amended, altered, supplemented, added to, cancelled or terminated except in accordance with the terms and conditions of the Contract, or by written agreement signed by the Parties.
- Telemar may, from time to time, at its sole discretion, add, delete or modify the Services available to the Customer, with a thirty (30) days’ notice.
- In the unlikely event that there is any conflict between the GT&C and a Contract, the order of precedence shall be (i) the Contract including any amendment(s) thereto, (ii) special terms and conditions (if any) and (iii) these GT&C.
2. CHARGES, INVOICES, PAYMENT AND TAXES
- Invoices shall be sent by Telemar to the invoice address as provided by the Customer. The Customer may request to be invoiced on another customer legal entity (a billing entity), however, the Customer acknowledges that it will always be ultimately responsible for the invoice. All payments under a Contract to Telemar shall take place within thirty (30) days of the invoice issue date, unless otherwise specified in the Contract, without the right to set-off or withhold payment in whatever circumstance. All payments shall be made in the currency as agreed in the Contract. Payments shall be made to the account as designated in the Contract and shall contain a reference to the relevant invoice. Any banking fees must be settled by the Customer.
- All prices and/or charges are exclusive of value added tax, other taxes (including but not limited to withholding tax), duties, surcharges and other fees or charges levied by any governmental authority on the Services. The Customer is responsible for payment of all such additional charges, in addition to Telemar’s charges. In the event that the Customer is required to make any deduction or withholding in respect of any payment to Telemar under a Contract, the Customer shall pay to Telemar such additional sum as shall enable Telemar to be paid in full. Payments made to Telemar, which are subject to a withholding tax, require a certificate of payment of the withholding of the Customer.
- Any periodical fee related to a Contract, where applicable, will be invoiced in advance. Ad hoc on-board Services, freight costs, travel costs and expenses and any other charges generated beyond the coverage of the Services included in the contract will be invoiced in arrears upon completion of the service.
- Telemar has the right to charge payment of interest on any overdue balances, including payments withheld on amounts in dispute which are ultimately held to be due, at the higher of one and a half per cent (1.5%) per month (or part thereof), or the maximum lawful rate. Should the services of an attorney or collection agent be necessary to collect amounts due, the Customer will be liable to Telemar for Telemar’s costs of collection, including but not limited to reasonable attorney’s fees, court costs, and other such costs as may be incurred.
- In the event that the Customer fails to make payment of undisputed (parts of the) invoices to Telemar by the due date, Telemar may at its sole discretion choose to suspend or limit its Services to the Customer pending receipt of outstanding amounts, including any applicable interest and costs. A notice period of fifteen (15) days shall apply before suspending or limiting the Services.
- If Telemar determines, in case of proven late payments by the Customer, that it is commercially prudent to obtain financial security against the Customer, Telemar shall be entitled to require the Customer – at its own costs – to provide such financial security in an amount and form that Telemar deems reasonably appropriate. Failure by the Customer to timely provide such exact financial security shall be deemed to be a material breach of the Customer’s obligations under the Contract.
- In the event that the Customer wishes to dispute an invoice, the Customer must notify Telemar in writing of the legal and factual basis for the claim, as soon as possible but no later than sixty (60) days after the invoice issue date. Any claims received by Telemar after the claim period set out above shall be deemed null and void, unless Telemar decides to honour such claim. If Telemar accepts a claim made by the Customer, Telemar shall correct the prior sent invoice by way of a credit note.
3. PURCHASE OF EQUIPMENT
In all cases where the Customer purchases Equipment from Telemar, the Equipment shall become the property of the Customer from the moment the related invoice(s) is paid by the Customer in full. A partial pre-payment prior to delivery may be applied. Equipment is sold excluding any tax, shipping and/or insurance costs.
4. SUPPLY OF SPARE PARTS
Any defective parts replaced during service in accordance with a Contract, remain the property of Telemar, and the Customer is committed, excepting cases beyond his control, or unless Telemar waives this obligation in any given circumstance, to return them to Telemar. Failing this, Telemar reserves the right to charge the Customer for the unreturned items at a price equal to the replacement value as solely determined by Telemar.
5.CUSTOMER’S GENERAL RIGHTS AND OBLIGATIONS
- In addition to its other obligations under a Contract and these GT&C, the Customer shall at its expense and risk:
- transport Telemar personnel to and from any offshore site and provide lodging for Telemar personnel while offshore if required;
- ensure that the Telemar field service engineers enjoy the same subsistence rights and comfort as the Customer’s own employees, including food and lodging;
- provide such logistical support and assistance (including personnel speaking English or such other language as to assure adequate communication being possible) as Telemar may reasonably request in connection with the maintenance, installation and de-installation of the Equipment, including lifting the Equipment onboard / off the Vessel and facilitating cabling, all in accordance with the Contract;
- be responsible for all physical modifications to the Vessel as necessary or required for the installation or modification of the Equipment, and upon request provide Telemar with the general arrangement drawings describing the Vessel’s design to facilitate the installation process; and
- ensure the provision of Customer Provided Equipment and be responsible for any and all Customer Provided Equipment and Services necessary to perform maintenance and /or installation of contracted Equipment, including any welding or other “hot work”, of the Equipment, including cable runs necessary to complete any shipboard modifications.
- The Customer shall furthermore reimburse Telemar for:
any freight charges incurred for the delivery and return of Equipment or spare parts; and
any taxes, custom duties, tariffs and fees related to delivery or return.
- IMPORTATION AND EXPORTATION OF EQUIPMENT AND SPARE PARTS
- The Customer shall, if Telemar does not elect otherwise, be responsible for all Equipment and spare part importation and exportation to and from the Vessel. In this respect, the Customer shall:
pay all applicable taxes, duties and fees related to the importation and exportation;
obtain at its cost such import and export licenses and other consents that are required from time to time; and
upon request, make those licenses and consents available to Telemar prior to the shipment of the Equipment and/or spare parts.
- Telemar may, at its option, be responsible for importation and exportation. In such cases the Customer shall reimburse Telemar for the payment of all applicable taxes, duties and fees related to such importation, exportation and movement and the costs involved in the issuance of the import and export licenses and other consents that may be required from time to time.
- EXPORT CONTROLS AND SANCTIONED COUNTRIES
- The Customer acknowledges that it shall comply with applicable export control laws, regulations and sanctions, and will obtain all government licenses to export, re-export or import Telemar’s Equipment as may be required, regardless of where Services are provided. The Customer shall not, without first obtaining any necessary licenses, export or re-export any of Telemar’s Equipment, proprietary information or related technical data: (i) to any country subject to comprehensive UN sanctions, U.S. sanctions including, without limitation, on Cuba, Iran, Sudan, North Korea or Syria, sanctions of the EU and UK and any local country sanction law(s) and/or regulation(s) under the jurisdiction of the Vessel; (ii) for any prohibited end uses and/or end-users; (iii) to any prohibited destinations; or (iv) to any individuals or entities that are presently on any denied party lists including (but not limited to) the U.S. Department of Treasury’s Office of Foreign Assets Control Specially Designated National (“SDN”) List, consolidated list of persons, groups and entities subject to EU and UK sanctions. In the case of such an export, re-export or import, the Customer must provide Telemar timely adequate information regarding the identification of all parties, end-use, end-users and end-use destinations that are involved in the Customer’s transaction or use of the Vessel prior to engaging in any new transactions, supplies and/or activities that will make use of Telemar’s Equipment and/or Services in the earlier mentioned sanctioned and/or prohibited destinations. The Customer will not cause the Vessel, including Telemar’s Equipment and Services, to move to or to be used in any sanctioned and/or prohibited destination without Telemar’s authorization, knowledge and any applicable government licenses.
- The Customer acknowledges that it will not use, directly or indirectly, Telemar’s Equipment and/or Services in (end-)uses and/or activities prohibited by and/or inconsistent with any applicable export control laws or sanctions. In addition to other rights it may have in law or under a Contract, Telemar reserves the right to refuse to provide Equipment, Services or any goods and suspend or terminate a Contract in its entirety, without any liability, if Telemar has a good faith basis for believing the Customer or any of its related parties has violated, or intends to violate, any applicable export control law or sanction regulation.
- If the Customer causes a Vessel to be moved to a sanctioned or prohibited location, where the provision of Services to the Customer is subject to and in breach of applicable embargoes, sanctions or local country law(s) under the jurisdiction of the Vessel, Telemar has the right to immediately suspend its obligations with respect to such Vessel. Telemar will duly inform the competent authorities regarding the breach and, if permitted so, inform the Customer regarding further steps to be taken.
- The Customer agrees to indemnify, defend and hold harmless Telemar and its employees from and against any and all claims, demands, damages, costs, penalties and fines arising in connection with any breach by the Customer of any customs, export control or sanctions regulations.
8. COMPLIANCE WITH LAWS
Telemar and the Customer shall each comply with the applicable laws, regulations, and orders pertaining to their activities related to a Contract, including but not limited to those applicable to labour, wages, hours, equal opportunity and other conditions of employment, and the environmental health and safety of personnel. The undertakings and obligations of Telemar under a Contract are subject to the requirements of applicable US, EU, UK and foreign laws and regulations, and to Telemar receiving any necessary governmental authorizations, licenses and approvals, and such permissions remaining available.
- GIFTS AND PAYMENTS
Each Party warrants that it and its Affiliates have not made, offered, requested, accepted or authorized and will not make, offer, request, accept or authorize with respect to the matters which are the subject of any Contract, any payment, gift, promise or other advantage, whether directly or through any other person or entity, to or for the use or benefit of any public official or any political party or political party official or candidate for office, or any person or entity, where such payment, gift, promise or advantage would violate (i) the applicable laws or regulations of the country in which the Services are performed; (ii) the laws or regulations of the country of incorporation of such Party or such Party’s ultimate parent company and of the principal place of business of such ultimate parent company; (iii) the principles described in the United Kingdom Bribery Act 2010, the United States Foreign Corrupt Practices Act or any other similar law. Each Party shall defend, indemnify and hold the other Party harmless from and against any and all claims, damages, losses, costs and expenses arising from or related to, any breach by such first Party of such warranty. Such indemnity obligation shall survive termination or expiration of the applicable Contract. Each Party agrees to (i) maintain adequate internal controls; (ii) properly record and report all transactions; and (iii) comply with the laws and regulations applicable to it.
- TERM AND TERMINATION
- A Contract shall be valid and effective from the effective date of validity expressed in the signed Contract and shall termite at the Contract designated date taking into account also the tacit renewal periods, where present. Termination of a Contract for a Vessel requires a written notice in accordance with the Contract.
- Each Party can terminate a Contract for convenience against the end of the then current term by providing the other Party with a written termination notice ultimately ninety (90) days prior to the end of the Initial Term or the then current Renewal Term (if applicable).
- In case of sale, loss or final lay-up of a Vessel the Customer is obliged to inform Telemar as soon as practical by written notice. The Customer will be liable for all costs and expenses charged to the Customer under the Contract until Telemar has received such written notice.
- Either Party may immediately terminate the applicable Contract in the event of other Party’s (i) insolvency, (ii) liquidation, cease of business or activities, reorganization or interim judicial management, (iii) filing for protection from creditors, (iv) filing a petition in bankruptcy, or (v) assignment for the benefit of creditors.
- In the event that the Customer fails to pay when due, Telemar may, at its option, (i) require the Customer to provide security if the Customer’s invoice payments are late on two or more occasions, (ii) suspend or limit Services according to article 2, or (iii) terminate the applicable Contract in case of material breach.
- Telemar may terminate a Contract with immediate effect in case of (i) a change of control or ownership on the Customer side, (ii) any proven incorrect or untrue representation or warranty from the Customer, or (iii) if the Customer is subject to criminal, financial or ethical investigation.
- Telemar may, with no liability whatsoever, suspend or terminate Services to the Customer if lawfully ordered to cease operation of such Services by a state or federal court of law, or any other lawful federal, state or local governmental or regulatory authority. If at any time during the term of a Contract any Equipment, or property used by Telemar to provide Services to the Customer, are taken for a public or quasi-public purpose by a lawful power or authority under the exercise of right of condemnation or eminent domain, Telemar will have the right, upon written notice to the Customer, to terminate Services affected by the taking. This equally applies if Telemar loses its rights from its licensing authorities.
- Termination or expiration of a Contract in accordance with the GT&C shall not release the Parties from any liability which a Party has already accrued before or on the termination or expiry date or which thereafter may accrue in respect of any act or omission of a Party, or from any obligation which is expressly stated in a Contract to survive such date. After termination or expiry of a Contract, the Parties shall (i) return or destroy all Confidential Information of the other Party in its possession no later than fourteen (14) days following the termination date, (ii) perform a final accounting of all sums due or which shall become due under a Contract, including Early Termination Charges (if any) and Onboard Services charges, within forty-five (45) days of the termination date, which sums shall be offset by amounts (if any) that may become payable under a Contract.
- Unless otherwise specified in the Contract, Telemar is not responsible for the physical installation and accessory work the installation of the Equipment normally entails.
- Upon delivery of the Equipment, the installation shall be carried out in cooperation with the Customer who shall be responsible for a variety of tasks. Telemar shall inspect the installation site, the devices to be interfaced, if any, and shall provide instructions for the preparation and accessory work to be performed under the Customer, as well as technical drawings and an installation plan as the case may require. Telemar shall, upon completions, be responsible for the connections, interfaces, firing-up, putting into operation and handing over of the Equipment.
- The following tasks are under the Customer’s responsibility, to be performed by ship’s staff or third parties on the Customer’s account, as the case may be:
all placement siting-connected activities for the physical installation of the Equipment such as fabrication of auxiliary masts, support platforms, deck apertures, consoles etc;
insulation of stays, earthing provisions, electrical interference suppression measure of machines and other Equipment on board;
provisioning and laying of power cables (including the special cables furnished with the Equipment, where applicable); and
the hoisting of the Equipment on board and/or antennas and other mast-mounted devices including provisioning for cranes, hemp ropes and blocks, as necessary.
- Telemar warrants that all the Equipment is free from manufacturing or material defects. The warranty on Equipment shall apply over a period of twelve (12) months as of the delivery date, unless expressed otherwise in the Contract.
- A claim from the Customer will become void in case:
violation of its material obligation under the Contract;
operation or maintenance instructions are not adhered to;
Equipment has been modified, parts have been replaced or consumables have been used that do not correspond with the original specifications from the manufacturer; and
of tampering, wilful damage or damage caused by, Force Majeure, negligence and meteorological/weather conditions.
- The Customer must inform Telemar in writing of all defects immediately upon occurrence, however, at the latest within two (2) weeks.
- In case of a warranty notification from the Customer, Telemar can demand at its own discretion:
for the defective Equipment to be returned to Telemar or to the manufacturer, as the case may be, for in-house repairs; or
for the Customer to provide access to the Equipment (on board the Vessel) for on-board repairs via a Telemar authorized and certified field service engineer, or its agent or associate.
- In the event that the repair work is carried out on board the Vessel, unless otherwise specified in the Contract, Telemar shall accommodate such request in which any spare parts subject to warranty shall not be charged to the Customer whereas labour, traveling and other costs and expenses shall be charged to the Customer according to the standard Telemar rates in force.
- Liability for normal wear and tear shall be excluded from the application of a warranty repair. Telemar shall furthermore, not be held liable for any deficiencies in the functionality of the Equipment if the installation and/or placing into operation of the Equipment was not carried out by Telemar or an authorized and certified dealer or representative.
- The Customer is the only party to be directly entitled to warranty claims against Telemar and this entitlement cannot be assigned or transferred to any other party.
- This article governs the warranty procedures in a definitive manner excluding any other default arrangement or claim on behalf of the Customer.
- If the Customer deems Equipment to be defective and initiates a warranty repair procedure and Telemar subsequently finds that either (i) operation or maintenance instructions are not adhered to or (ii) Equipment has been modified, parts have been replaced or consumables have been used that do not correspond with the original specifications from the manufacturer, then Telemar is entitled to charge to the Customer all costs and expenses it incurred in relation to the repair procedure.
The Parties agree that all pricing, technical and commercial information related to the applicable Contract and the design of the Services shall be kept confidential and not disclosed, excluding information that (i) is in the public domain without breach of these GT&C, (ii) is required to be disclosed under applicable law, stock exchange regulations or by a governmental order, decree, regulation or rule (provided that the receiving party shall use all reasonable endeavors to maintain the confidentiality of any information so disclosed, and give prompt written notice to the other Party prior to such disclosure), (iii) is acquired independently from a third party that has the legal right to disseminate such information at the time it is acquired by the receiving party, or (iv) is independently developed by the receiving party without the use or incorporation of any confidential information from the disclosing party. The duty of confidentiality shall survive the expiration or termination of a Contract by three (3) years.
- NO THIRD-PARTY BENEFITS
By entering into a Contract, Telemar only accepts contractual obligations towards the Customer. The provisions of a Contract are solely for the benefit of the Parties hereto and their lawful successors and assignees, and no other party may seek to enforce or benefit from any provisions. Telemar shall only be responsible towards the Customer to the extent explicitly provided for in a Contract, and the Customer shall indemnify Telemar from any excess claim from any third party in connection with a contract between the Customer and such third party. In the event any mandatory applicable law grants rights to any third party, such third party shall not be entitled to any right of notice or consent with respect to any amendment, cancellation or termination of the applicable Contract.
- REPRESENTATIONS AND WARRANTIES
- Telemar makes only those warranties, if any, set forth in the Service Agreement and disclaims any and all other warranties, express, statutory or implied to the extent permitted by law, including without limitation the warranty of merchantability and the warranty of fitness for particular purpose. Telemar does not warrant that the services provided under a contract will be error free or without interruption.
- Each party entering into a Contract represents and warrants to the other party that:
it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation;
that it has all requisite authority and approvals to enter into a contract and perform its obligations thereof; and
that all requisite corporate action has been taken for the execution, delivery and performance of a contract.
- Telemar shall indemnify, defend and hold free and harmless the Customer from and against all claims, demands and causes of action of every kind and character, without limit and without regard to the cause or causes thereof or the negligence of any party or parties, including any member of the Customer’s group, arising in connection with the services provided under a contract in favour of the Telemar Group, on account of bodily injury, death or damage to property, provided that such indemnity shall not extend to the Customer’s duty to compensate Telemar as set out elsewhere in a Contract. Telemar’s indemnity under this article shall be without regard to and without any right to contribution from any insurance maintained by the Customer.
- The Customer shall indemnify, defend and hold free and harmless Telemar and the Telemar group from and against all claims, demands and causes of action of every kind and character, without limit and without regard to the cause or causes thereof or the negligence of any party or parties, including any member of Telemar and the Telemar Group, arising in connection with the Services provided under a contract in favour of the Customer, on account of bodily injury, death or damage to property. The Customer’s indemnity under this article shall be without regard to and without any right to contribution from any insurance maintained by Telemar.
- The Customer shall indemnify, defend and hold free and harmless Telemar and the Telemar group from and against, and shall pay all expenses (including reasonable legal fees) and satisfy all judgements which may be incurred by or rendered in connection with any claims and brought against Telemar by a third party arising from or in connection with:
any libel, slander or invasion of privacy or any allegation thereof or infringement of copyright or intellectual property rights arising as a result of the use of the services;
the loss of confidential information resulting from delays, non-deliveries, mis-deliveries of service; and
the failure to obtain, maintain in force or comply with any licenses or authorizations.
- This article shall survive the termination or expiration of the applicable contract.
- LIMITATION OF LIABILITY
- Nothing in any contract shall operate to exclude or limit either party’s liability to the other for:
death or personal injury caused by its negligence;
fraudulent misstatement; or
any other liability which cannot be excluded or limited under applicable law.
- Subject to art. 18.1, neither party shall be liable to the other for any:
indirect, special, incidental, punitive or consequential loss or damage whatsoever; or
loss of profit, loss of revenue, loss of use of assets, or loss of product (whether direct, indirect or consequential), in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the breaching party and whether arising in or caused by a breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty or otherwise.
- Subject to articles 1 and 17.2, Telemar’s total aggregate liability under or in relation to a contract, including liability for breach of contract, misinterpretation (whether tortious or statutory), tort (including negligence) or breach of statutory duty shall not exceed the amount of USD 20,000 (twenty thousand United States Dollars).
- Subject to articles 1 and 17.2, except to the extent caused by the willful misconduct of Telemar, and then provided that the loss was reasonably foreseeable at the time that such injury or damage was caused, Telemar shall not be liable to the Customer for:
any maintenance caused issue or non-performance;
any loss or damage to vessels occurred in connection with the installation and/or service performed to the extent as allowed by law;
any failure in or breakdown of Equipment or facilities associated with the Services provided, or any other act or omission of Telemar in connection with the Services provided hereunder, whatever the cause, and whether attributable to any act or omission of Telemar or its subcontractors, service associates or suppliers; and
any malfunction, lack of maintenance, failure to function, incompatibility, damage to or defect or consequence thereof, that is not caused directly by the willful misconduct of Telemar personnel
- Telemar will have no liability to the Customer’s clients, customers, contractors, partners, co-ventures, owners or affiliates (each a “Customer’s third party”) arising out of or related to a contract, and the Customer shall indemnify, defend and hold Telemar, its affiliates, and each of their officers, directors, employees, agents and attorneys, free and harmless from and against any and all liabilities, losses, claims, costs, expenses, damages or demands, including, but not limited to, consequential loss and reasonable attorney fees, brought or suffered by any Customer Third Party arising out of or related to a contract.
- All claims must be made in writing by registered mail to Telemar within one (1) month from the time in which the Customer became or should have been aware of the event causing the relevant claim. Failure to do so will result in the claim being deemed null and void, unless Telemar decides to honour such claim.
- FORCE MAJEURE
Except for obligations related to the payment of money owed, the Parties shall be excused from performing under the terms of a Contract, if and for so long as such compliance is hindered or prevented by occurrences beyond its control, such as but not limited to riots, labor disputes, embargo, strikes, lock-outs, blockade, wars (declared or undeclared), insurrections, rebellions, terrorist acts, civil disturbances, revolution, invasion, orders of governmental authority, whether such authority be actual or assumed, acts or decisions to prevent or mitigate cyber-attack effects (including the shutdown of information systems), externally caused transmission interference, satellite failure, acts of God, fire, explosion, nuclear contaminations, boycott for imported items, flood, hurricanes, storms, tornadoes or other weather events or by any other act or cause which is reasonably beyond the control of such Party, any such event hereafter to be referred to as “Force Majeure”. In the event that either Party hereto is rendered unable, wholly or in part, by any such occurrence to carry out its obligations under a Contract, it is agreed that such Party shall give notice and details of Force Majeure in writing to the other Party as promptly as possible after its occurrence. In such cases, the obligations of the Party giving the notice shall be suspended during the continuance of any inability so caused. For those events lasting more than thirty (30) consecutive days, either Party shall have the right to terminate the corresponding Services affected by the Force Majeure with no liability to the other Party.
- PERSONAL DATA (GDPR)
- In compliance with Regulation (EU) 2016/679 27th April 2016 (GDPR), each party acknowledges that the personal data supplied to the other party by the users of the provided service are necessary so as to comply with the applicable laws and regulations, the terms and conditions described herein and those related to the pertaining contract.
- The Customer, therefore, is aware upon entering into contractual relationship with Telemar that the latter may use the personal data it becomes in any way acquainted while performing the Services related to the contract, to the sole extent required to fulfil the related contractual obligations, within the prescribed and applicable terms and in compliance to the administrative rules and provisions.
Neither Party may sell, assign, nor transfer a Contract, or any part thereof, nor any money due hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided however that Telemar may sell, assign, or transfer a Contract or any part thereof, or any money due thereof, to a Telemar Affiliate upon advance written notice to the Customer. No assignment, sale or transfer of a Contract shall relieve the assigning, selling or transferring Party, as applicable, of its obligations under a Contract.
No waiver by any Party of any one or more defaults by another Party in the performance of any provision of a Contract shall operate or be construed as a waiver of any future default or defaults by the same Party, whether of a like or of a different character. Except as expressly provided in these GT&C, no Party shall be deemed to have waived, released or modified any of its rights under a Contract unless such Party has expressly stated, in writing, that it does waive, release or modify such right.
If any term or provision of these GT&C or a Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction, provided that these GT&C or the Contract without the unenforceable provision(s) is consistent with the material economic incentives of the Parties.
- INDEPENDENT CONTRACTOR RELATIONSHIP
Nothing contained in these GT&C or a Contract shall be deemed or construed by Telemar or the Customer or by any third party to create the relationship of principal and agent, partnership or joint venture in any form, or any other fiduciary relationship or association between Telemar and the Customer.
- Entire agreement
The applicable Contract (including its service descriptions) and these GT&C constitute the entire agreement between the Parties with respect to the subject matter thereof, will govern the provision of Equipment and Services to the Customer, and supersede and replace any and all other negotiations, conversations, understandings and/or agreements, written, oral, implied or otherwise made by the Parties. Each Party hereto each acknowledge that, in entering into a Contract, it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations which were made by or on behalf of the other Party in relation to the subject matter of a Contract at any time before their respective signature (together, “Pre-Contractual Statements“). Each Party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for this article 24. Nothing in this article 24 shall exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
- Surviving clauses
The provisions of these GT&C, which by their nature and the context in which they appear, would reasonably be expected to survive termination or expiration of a Contract, including, but not limited to, those relating to warranty, ownership and return of Equipment, service remedies, indemnity, limitation of liability, waiver of consequential damages, confidentiality and governing law and dispute resolution, will survive its termination or expiration.
Should any provision of these GT&C require interpretation, it is agreed that the court interpreting or considering the provision shall not apply any presumption that the terms of these GT&C shall be more strictly construed against the drafter.
A Contract may be executed in two or more counterparts, each of which shall constitute one and the same original. A facsimile or electronic signature shall be as valid as an original.
- GOVERNING LAW AND ARBITRATION
- A Contract shall be construed and interpreted in accordance with the applicable laws of the country where the relevant Telemar entity is registered. The Parties expressly renounce application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to the Contract.
- In the event that a dispute arises with respect to the interpretation or implementation of any provision of a Contract, the Parties agree to use all reasonable efforts to resolve such dispute amicably through negotiations. Any disputes arising out of or in connection with a Contract shall be brought before the competent court of the relevant Telemar entity:
Compagnia Generale Telemar S.p.A. Genoa, Italy;
Telemar Norge AS, before the competent Oslo Chamber of Commerce Arbitration Court, Norway;
Telemar Elektronics GmbH, before the competent court of Bremerhaven;
Telemar (UK) Limited, before the competent court of London, UK;
Telemar Oy AB, before the competent court of Helsinki, Finland; amd
Telemar (Shanghai) Limited, before the competent court of Shanghai, China.
- The language of any legal proceeding shall be English, for as much as permitted.
- Notwithstanding the prior sentences, Telemar is entitled to initiate legal proceedings within any other jurisdiction in which proceedings may lawfully be taken against the Customer.
- To the extent that the implementation, provision, uses and/or restoration of the Services provided under a Contract by Telemar is regulated by a state regulatory agency or a regional or international organization, the Parties agree to comply with the rules and regulations of any such agency or regional or international organization.
- INTELLECTUAL PROPERTY
The Customer must respect the Intellectual Property rights of Telemar, its vendors, third-party providers, and any other owner of Intellectual Property whose protected property may appear through the use of the Equipment, Services or any other software or service provided in connection an agreement with Telemar. Except for material in the public domain, all material displayed in association with the provided Services is copyrighted or trademarked and may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner.
- BUSINESS ETHICS
Both Parties shall uphold the highest standard of business ethics in the performance of a Contract.
- SAFETY AND TRAVEL RESTRICTIONS
Telemar may at its discretion deny a request for specific Onboard Services under a Contract if the provision thereof would cause unreasonable burdens or risks to Telemar or its employees. Such reasons include but are not limited to complex or lengthy processes on visa requirements for the Telemar field service engineers, travel to locations for which a restricted travel advice has been issued by a Ministry of Foreign Affairs or any other relevant governmental authority, or which in Telemar’s opinion entails an unacceptable risk to the health and/or safety of the Telemar personnel.
The following words, when capitalized herein, shall have the meaning stated below. Unless otherwise specified, words in the singular include the plural and vice versa.
“Affiliate” shall mean any corporation, partnership, limited liability company or association, trust or other entity or organization which, directly or indirectly, controls, is controlled by, or is under common control with, Telemar and/or the Customer. For purposes of the preceding sentence, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any entity or organization, shall mean the possession, directly or indirectly, of the power (i) to vote more than fifty percent (50%) of the securities having ordinary voting power for the election of directors or comparable individuals of the controlled entity or organization, or (ii) to direct or cause the direction of the management and policies of the controlled entity or organization, whether through the ownership of voting securities or by contract or otherwise.
“Confidential Information” shall mean all information (written, oral, electronic, photographic or other form) that (i) relates to the technical, financial and business affairs, customers, suppliers, products, developments, operations, processes, data, trade secrets, know-how and personnel of a Party or (ii) is disclosed to the other Party in connection with any Contract, including information disclosed according to a Non-Disclosure Agreement executed by the Parties prior to the effective date of the applicable Contract, which should reasonably be understood by the recipient to be confidential, either due to the nature of the information, the circumstances of its disclosure, or notices appearing on or given in connection with the information.
“Contract” shall mean a contract (including its annexes), subscription form, quotation or purchase order applicable between Customer and Telemar, as may be amended from time to time in accordance with the provisions of these GT&C.
“Customer” shall mean the legal entity which has entered into a Contract with Telemar.
“Customer Group” shall mean Customer and its Affiliates’ employees, officers, directors, invitees, customers and their employees, third parties and subcontractors and their employees.
“Customer Provided Equipment” shall mean all ship-borne material, equipment, software and spare parts excluding the Equipment, which functionally interfaces or is interconnected to the Equipment, including and not limited to GPS, Gyrocompass, PBX, Local Area Network (LAN), WiFi access points, personal computers, mobile devices and any additionally required software for the use of the Equipment.
“Early Termination Charges” shall mean the amounts to be paid by Customer to Telemar in the event a Vessel is terminated before the end of the commitment period for any reason other than Telemar becoming a defaulting party or Force Majeure.
“Equipment” shall mean the equipment, materials and devices, including associated software, provided by Telemar and/or installed at any Vessel, described in any Contract or used by Telemar to provide Services.
“Force Majeure” shall have the meaning as stipulated in article 18.
“GT&C” shall mean these Telemar general terms and conditions applicable to a Contract.
“Initial Term” shall mean the minimum contract term per Vessel as defined in a Contract.
“Intellectual Property” shall mean all rights conferred under any applicable law in relation to trade secrets, copyrights, inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, knowhow, confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
“Maintenance Services” shall mean any onboard routine inspection and servicing of the Equipment.
“Onboard Services” shall mean the Maintenance Services and On-Call Repair Services.
“On-Call Repair Service(s)” shall mean any repair service visit to the Vessel.
“Party” or “Parties” shall mean the Customer and/or Telemar. Telemar and the Customer will be referred individually as a ‘Party’ and collectively as the ‘Parties’.
“Renewal Term” shall mean any extension period of a Contract for a Vessel automatically following the Initial Term or a Renewal Term.
“Service Agreement” shall mean the support services as agreed in the annex of the contract called service agreement.
“Services” shall mean the provision of Connectivity Services, Onboard Services and any other services by Telemar to Customer as set forth in a Contract.
“Telemar” shall mean (i) Compagnia Generale Telemar SPA, (ii) Telemar Norge AS, (iii) Telemar Electronics GmbH, (iv) Telemar UK LTD, (v) Telemar OY AB and (vi) Telemar Shanghai LTD and if agreed otherwise any of their Affiliates.
“Telemar Group” shall mean Telemar and its Affiliates, and Telemar and its Affiliates’ employees, officers, directors, invitees, customers, suppliers, sub-contractors, agents and their employees, third parties and subcontractors and their employees.
“Vessel” shall mean the vessel, platform or other Customer location(s) where Services are to be provided.