1. THE SERVICES TO BE PROVIDED
1.1. The Engagement and its Terms – Under these terms and conditions of engagement the “Client” shall mean the party noted in the confirmation of instructions (“Confirmation of Instructions”) issued by Oceana Marine Claims & Adjusting Inc, as the party on whose instructions Oceana will be acting; “Oceana” means the Company instructed by the Client, in relation to the matter, loss or accident for which Oceana is instructed to provide its services to the Client (the “Matter”), on the terms contained in this document and in the Confirmation of Instructions to the Client (together “the terms of engagement” and generally “the engagement”). Unless otherwise stated in the Confirmation of Instructions these terms of engagement supersede any other agreement or arrangement (whether written or oral) previously agreed between Oceana and the Client in relation to the Matter. In the case of a conflict between the Confirmation of Instructions and these terms and conditions, the Confirmation of Instructions will prevail.
1.2. Timetable – Oceana will make every reasonable effort to adhere to any timetable agreed either in the Confirmation of Instructions or elsewhere in writing with the Client. For the avoidance of doubt, however, time is not of the essence to Oceana’s performance of the engagement, unless Oceana has expressly agreed otherwise in writing.
1.3. Reporting – Oceana will report to the Client with appropriate information on the progress of the Matter as regularly as may be appropriate for the Matter or as otherwise agreed with the Client.
1.4. Authority – The Client hereby expressly authorizes and agrees that Oceana may engage or use contractors, sub-contractors or other persons to provide the services covered by the terms of engagement in relation to the Matte
2. THE CLIENT’S RESPONSIBILITIES
2.1. Support Facilities – If Oceana is required to work at the assured’s premises, the Client, in case it is not the same party, will ensure that Oceana’s personnel are provided with the facilities reasonably necessary to enable them to do their work efficiently and in safety.
2.2. Information – The Client will give Oceana all information, instructions and assistance reasonably necessary to enable Oceana to perform the engagement and the Client will ensure that its appropriate personnel are available to Oceana for such purpose The Client hereby acknowledges that Oceana will rely on such information, instructions and assistance when performing the engagement.
2.3. Payment – The Client will pay Oceana’s fees, disbursements, expenses and applicable local taxes including Value Added Tax where appropriate (hereinafter “applicable taxes”) in respect of the engagement in accordance with clause 3 below or as otherwise agreed with the Client in the Confirmation of Instructions.
3. FEES AND PAYMENT
3.1. Method of Calculation – Unless otherwise agreed in writing, Oceana’s fees will be charged to the Client on a time basis at the appropriate hourly rates plus applicable taxes, if any. Such fees will include time spent in connection with the engagement on travelling, attending meetings and interviews, research, investigation and forensics, working on and preparing reports and associated papers, correspondence and telephone calls etc.
3.2. Disbursements – Oceana’s fees will exclude any fees payable by the Client for forensics analysis or to other technicians or professional advisers instructed by or on behalf of the Client or otherwise associated with the engagement. All disbursements and expenses incurred by Oceana in connection with the engagement including charges for travel, subsistence, accommodation and out of office or on site expenses such as telephone calls and photocopying will be invoiced to and payable by the Client on an at cost plus applicable taxes basi
3.3. Estimates – Any estimate of fees or of the time likely to be involved in performing the engagement, if given, will be given by Oceana in good faith to the Client for planning or other purposes only and the estimate will not be contractually binding on either party.
3.4. Payments on Account – Oceana reserves the right to require the Client to pay Oceana funds in advance to enable Oceana to pay the disbursements and expenses described in clause 3.2 above (payable either in advance on account or periodically as they become due for payment).
3.5. Taxes including VAT – Insofar as any fees, disbursements and expenses are liable to any applicable taxes which Oceana may be liable under applicable local law to pay or collect in respect of the engagement, the Client agrees to pay all such taxes and reimburse Oceana accordingly upon receipt of Oceana’s invoice in respect of such taxe
3.6. Fee Changes – Oceana may vary its hourly rates or any hourly rates given in the Confirmation of Instructions or as otherwise previously agreed in writing with the Client, such variations normally would arise from Oceana’s practice of reviewing its standard hourly rates from time to tim
3.7. Billing – Unless otherwise stated in the Confirmation of Instructions, Oceana may decide to issue interim invoices on a quarterly basis and a final invoice on completion of its engagement, or one final invoice on completion of its engagement. Each such invoice (whether interim or final) will attach details of the work undertaken and copies of any other invoices for significant disbursements and expenses described in clause 3.2., above. Unless otherwise stated in the Confirmation of Instructions, all Oceana’s invoices will be addressed to the Client.
3.8. Payment – All Oceana’s invoices (whether interim or final) are due for payment in full upon receipt by the Client and the Client is liable for their payment to Oceana. If payment in full is not received by Oceana within 30 (thirty) days of the Client’s receipt of an invoice, Oceana will have the right to suspend the provision of its services, in case of an interim invoice, to charge interest on any amount overdue at a rate of 8% (eight per cent) per annum above the base rate of the Bank of England prevailing at the time of default or from time to time, and to terminate its engagement in accordance with clause 4.3(a) below.
3.9. Client Money – Client Money is money which Oceana may receive and hold for a third party in the course of Oceana’s business activitie Oceana holds Client Money subject to a statutory trust in separately allocated account with such approved bank or other financial institution. Oceana will retain any interest earned by such Client Money unless otherwise agreed with the Client.
4. TERMINATION
4.1. Duration – The engagement will terminate when all amounts invoiced to the Client in connection with Oceana’s final report and any prior reports on the Matter have been received by Oceana, unless the engagement is terminated earlier in accordance with clause 4.2 or 4.3 below.
4.2. The Client’s Right to Terminate – The Client may terminate the Engagement at any time by giving not less than 5 (five) business days notice in writing to Oceana. Unless the Confirmation of Instructions states otherwise.
4.3. Oceana’s Right to Terminate – Oceana may terminate the Engagement forthwith by giving written notice to the Client if:
a) the Client fails to pay any of Oceana’s invoices when due or fails to advance to Oceana any funds requested by Oceana in accordance with clause 3.4 above;
b) the Client is unable to pay its debts or has a receiver, administrator or liquidator appointed;
c) any conflict of interest arises in accordance with clause 5 below; or the Client is in breach of any of the other terms of engagement and having received written notice from Oceana to such effect requiring the Client to remedy such breach within a reasonable time the Client has failed to remedy such breach
4.4. Costs and Lien – On termination of the engagement for any reason:
a) the Client shall pay to Oceana forthwith all fees, disbursements and expenses due to Oceana up to and including the day of termination incurred in connection with the engagement upon delivery of Oceana’s invoice to the Client; and
b) until Oceana has received payment in full for such invoice, Oceana shall have a lien over and be entitled to retain all the Client’s money, records, documents, deeds, storage media, books, papers and any other information in hard copy or stored electronically in Oceana’s possession relating to the Matter, the engagement and services or otherwise in Oceana’s control.
5. CONFLICTS OF INTEREST
5.1. Possible Termination – In circumstances where there is or may be a conflict of interest between Oceana and another party involved in the Matter Oceana may be precluded from acting or may have to cease acting for the Client unless all parties involved in the Matter agree in writing that Oceana shall continue acting in connection with the Matte Oceana will make every reasonable effort to identify any such conflict and advise the Client accordingly prior to issuing the Letter of Instructions or if identified subsequently, then immediately. In the event that Oceana subsequently discovers a conflict and is obliged to withdraw from acting for the Client, Oceana shall be entitled to invoice the Client and be paid in full by the Client for any fees, disbursements, expenses and applicable taxes incurred in the engagement prior to such withdrawal.
In the event that such conflict arises in respect of a Client (re)insured and a Client (re)insurer, Oceana will offer to continue acting for the Client (re)insurer, who will become solely responsible for payment of such prior fees, disbursements, expenses and applicable taxes.
5.2. Acting for Other Clients – Oceana will not be prevented or restricted by anything contained in the terms of Instructions from acting for other clients in connection with the Matter, unless otherwise agreed in writing with the Client.
6. LIMITATION OF LIABILITY
6.1. Skill and care: Oceana will exercise reasonable care and skill in the performance of the engagement for the Client. All such other warranties and representations, whether express or implied by law, are excluded to the extent permitted by law.
6.2. Limit of liability: Oceana’s liability to the Client in respect of any claim for breach of contract, gross negligence, breach of trust or statutory duty or any other claim made against Oceana or its personnel in connection with the Matter and the engagement is limited as follows:
6.2.1. in respect of any claim for personal injury or death caused by Oceana’s negligence, no limit shall apply;
6.2.2. in respect of any claim which results from any fraudulent act (including theft or conversion) by Oceana, no limit shall apply;
6.2.3. in respect of any other claim, Oceana’s total liability in respect of all liability arising in connection with the Matter shall be limited in the aggregate to 5 (five) times the value of Oceana’s fees excluding disbursements, expenses and applicable taxes incurred in respect of the engagement, and
6.2.4. if any claim made against Oceana where parties other than Oceana also share liability for such claim, Oceana’s legal liability for such claim shall be limited to that proportion of any loss or damage so claimed for which it would be just and equitable for Oceana to contribute having regard to the extent of Oceana’s factual responsibility for such loss or damage, on the basis that those parties shall be deemed to have provided an undertaking in terms no less onerous than this clause.
6.3. Excluded liability: Subject to the application of clauses 6.2.1 and 6.2.2 above Oceana shall have no liability for:-
6.3.1. any indirect or consequential loss or damage including, without limitation, loss of profits, loss of revenue, loss of opportunity and loss of contracts;
6.3.2. for any claim for breach of contract, negligence, breach of trust or statutory duty or other claim in respect of any delay or failure by Oceana to perform any of its obligations under the engagement where such failure results directly or indirectly from any negligent or willful act of the Client or a third party;
6.3.3. for any loss or damage arising from Oceana’s reliance on any information, instruction or assistance given by the Client or resulting from the Client’s failure to give any relevant information, instructions or assistance in connection with the Matter or the engagement;
6.3.4. for any and all claims the Client may have against Oceana in respect of which proceedings are not brought within 12 (twelve) months of the date when the Client’s cause of action arose
6.4. Liability for Third Party Experts: Oceana will have no liability to the Client or any third party either for instructing or the performance of any third party expert to assist with the Matter or in the engagement except as follows:
6.4.1. Oceana makes no representation or recommendation to the Client as to any third party expert’s experience, suitability or competence for the purpose of any instructions given by or on behalf of the Client to the third party expert.
6.4.2. If agreed in the Letter of Instructions, Oceana may act solely as the Client’s agent for the purpose of:
a) instructing any third party expert chosen by the Client,
b) approving the scope and cost of work to be done by such expert, and
c) ensuring that such expert’s costs are invoices directly to the Client
6.5. Employees – The Client acknowledges that Oceana has an interest in limiting the liability of all its personnel involved in the Matter and the engagement. Accordingly, the Client agrees not to bring any claim of any kind in connection with the engagement against any individual employee of Oceana, any person seconded to Oceana or any agent, correspondent, subcontractor or self-employed consultant engaged by Oceana (together “personnel”).
6.6. Third Parties – The terms of engagement set out the rights and obligations of the Client and Oceana only. For the purpose of the Contracts (Rights of Third Parties) Act 1999, nothing in the terms of engagement other than clause 6.5 above shall confer or purport to confer any benefit or right to enforce any of the terms of engagement on a third party.
6.7. Force Majeure – Neither Oceana nor the Client will be liable to the other for their failure to fulfill their respective obligations under the terms of engagement caused by circumstances outside their reasonable control.
6.8. Reasonableness – The Client agrees that the foregoing limitations and exclusions of Oceana’s potential liability are reasonable based on:-
a) the amount of any likely liability to the Client if a breach by Oceana occurs
b) the current and future availability and cost to Oceana of professional indemnity insurance
c) the amount of fees payable to Oceana, and
d) the level of risk assumed by Oceana in connection with its obligations
in connection with the Matter and the engagement unless otherwise stated in the Confirmation Letter. Should any limitation or provision contained in this clause 6 be held to be invalid under any applicable statue or rule of law, it shall only to that extent be deemed omitted from the terms of engagement and all other limitations and provisions of such terms shall remain in force.
7. Claims
If a claim is made against the Client as a result of, or in connection with, a liability incurred to, or a dispute with, any third party, Oceana will give the Client all reasonable facilities and co-operation to investigate such claim and will provide the Client with such information and assistance as the Client may reasonably require in connection with such claim, liability or dispute.
8. Indemnity
Unless the subject matter of the indemnity provided for by this term has been caused by Oceana’s breach of the terms of engagement, the Client undertakes to indemnify Oceana and keep it indemnified fully at all times against all liability that may arise from time to time, and against all claims, demands, actions, proceedings, damages, losses, costs and expenses which are made, brought or claimed against or incurred by Oceana in connection with the Matter or Oceana’s appointment by the Client or the engagement.
9. Confidentiality
Oceana will keep confidential all information obtained from the Client, except insofar as Oceana is required by law or other regulatory process to disclose details of the Client’s dealings with Oceana. This clause does not apply to documents or information which Oceana obtains or develops independently of the engagement or other work done for the Client or which are already in the public domai
10. Waiver and Amendment
No waiver of or amendment to any terms of engagement will be effective unless it is made or confirmed in writing and signed by both Oceana and the Client.
11. Soliciting Personnel
Without Oceana’s approval the Client shall not, during the engagement or within six months after its termination or expiry, offer employment to or otherwise solicit any Oceana personnel involved in the Matter or the engagemen
12. Old Files
Unless the Client instructs otherwise in writing beforehand, Oceana will be at liberty to destroy all records, files and papers including electronic records but excluding title deeds relating to the Matter, following expiry of 5 (five) years from the end of the engagement or conclusion of the Matter whichever occurs later.
13. E-mail and the Internet
Both parties recognize that e-mail transmissions and the Internet cannot be guaranteed as a 100% secure or error-free communications medium, as information may be intercepted, corrupted, lost, destroyed, arrive late, be incomplete, or contain viruse Oceana monitors the contents of e-mails sent and received via its network for viruses. E-mail messages sent to or from Oceana’s systems are not confidential to any named individual at Oceana and Oceana reserves the right to read them without prior notice. Oceana recommends that recipients should also check e-mail messages for viruses in accordance with good IT practice.
14. Complaints Procedure
If the Client has any complaint to make about Oceana’s performance of the engagement the Client should raise it with the Oceana signatory of the Confirmation of Instructions for the Matter.
15. Governing Law & Jurisdiction
The terms of engagement will be governed by and interpreted in accordance with the laws of England & Wales and the parties to such terms agree that any unresolved dispute or difference arising in connection with the terms of engagement will be subject to the exclusive jurisdiction of the Courts of England & Wale
September 2022
Oceana Marine Claims & Adjusting Single Member Private Company
6, Sapfous Street,
16671, Vouliagmeni, Greece