Terms & Conditions of Business
Terms and Conditions
1.1 The Client:
The company, firm or person with whom the agreement is made - referred to as you / your(s).
1.2 The Vessel:
The motor yacht or sailing yacht or ship with whom the agreement is made.
1.3 The Company:
Da Gama Maritime Limited- referred to as we / our(s) / us.
1.4 The Agreement:
The Agreement between ‘Da Gama Maritime Limited.’ and ‘The Client’ constituted by the attached fax / letter / purchase order / electronic mail and incorporating inter alia these Terms and Conditions.
2.1 Our mission is to provide a professional service directed at all aspects of Navigation Management and Bridge Operation throughout a vessel’s life. We provide and support the Owner, Captain and Crew with a specialised team dedicated to sharing their experience and assisting mariners in the day-to-day safe navigation and conduct of their yacht or ship. Our services include, but are not limited to:
• Chart Outfit
o Supply of paper and Electronic Charts and their annual licences. This includes International Hydrographic Office (IHO) approved Raster and Vector charts for use on Electronic Chart Display and Information Systems (ECDIS) as well as unofficial charts from suppliers such as Wartsila, Garmin, Navionics and C-Map World Folios and individual charts.
o A supplier of the Pay-As-You-Sail (PAYS) service of official IHO electronic charts.
o All necessary navigation related publications and stores including International Maritime Organisation / Flag State requirement publications.
o Individual paper charts including UK Admiralty, French, Imray, Norwegian and American.
o A Print On Demand (POD) facility for rush order Admiralty charts.
o Automated paper and electronic chart updates in accordance with Notice to Mariners.
o General coffee table publications and cruising guides for both crew and guests.
• Crew Training (at additional costs)
o MCA accredited crew generic and type specific training in Electronic Chart Display Information Systems (ECDIS) in addition to other course in security, helicopter operation, RYA training, interior staff, first aid and working aloft among others .
o Bridge team training in maintaining a safe bridge watch and navigational procedures.
o Firefighting crew refresher courses and management overview advice on board.
o Onboard MCA accredited Crisis Management and Crowd Control.
• Consultancy (at additional costs)
o Advice and guidance through all stages of vessel accreditation in ECDIS to Flag State regulations including advisory risk assessments or inclusion to vessel ISM procedures.
o Evidence representation including accident or navigational investigations.
o Bridge layout planning, design and equipment choice.
o Chart outfit maintenance and application of corrections.
• Suppliers of
o Bridge navigation equipment and regulatory publications including everything from pencils to binoculars.
o A distributor of Garmin, Navionics, C-Map and Timezero plotter cards and software for a variety of tender navigation systems.
o High quality ensigns of all nations plus dressing lines, courtesy flags, international signal and code pennants and the creation of vessel specific bespoke flags.
o SOLAS approved firefighting equipment .
3.1 Neither party shall transfer or assign its rights or obligations under The Agreement without the prior written consent of the other party.
4.1 If we consider it more efficient or convenient, we may at our discretion and with the consent of the other party procure advice, assistance and services, which we render under The Agreement, from other persons and may at our discretion delegate performance or supply of one or more of our obligations under The Agreement.
4.2 We may, sub-contract all or part of the work entrusted by you, on terms that any such sub-contractor shall have the protection and benefit of all rights and conditions, and of all limitations and exclusions of liability, contained in these Terms and Conditions.
5. CONFIDENTIALITY AND GDPR
5.1 We will not divulge or allow to be divulged to any party or person (other than those who out of necessity to complete any instruction under The Agreement require to be informed of) any confidential information of or belonging to you. Confidential information includes, but is not limited to, information relating to any affairs of any client or customer, information related to products, services, processes, trade secrets, market opportunities, operations, documentation, techniques, procedures, designs, specifications, research, development, accounting, engineering, marketing, pricing, selling, and lists of employees and customers.
5.2 You shall extend the same courtesy to us as laid down in paragraph 5.1 of these Terms and Conditions and in accordance with General Data Protection Regulations (GDPR).
5.3 You undertake to keep confidential any information disclosed to you by us and not to disclose the same either complete or in part to any third party (including subsidiary companies, holding companies or associate companies) without our prior written approval, such undertaking to continue notwithstanding the expiry or termination of The Agreement for so long as the information in question has not become part of the public knowledge or literature without default on the part of you, or, been disclosed to you by the third party (other than one disclosing on behalf of us) whose possession of such information is lawful and who is under no secrecy obligation with respect to the same, or, for a period of 15 years from the date The Agreement terminates, whichever is the sooner.
5.4 On termination of The Agreement, you have the right to request we delete all personal data held, however for the sake of accountancy and meeting the requirements of Her Majesty’s Revenue and Customs (HMRC), any information held relating to orders placed or invoices issued will be held for a period of six years from the date of issue.
5.5 Personal data captured by us will be held in a secure IT environment meeting the necessary regulations where it is controlled and maintained as necessary for the transmission of relevant information to you. By agreeing to this contract, you accept that primary contact details will be stored on an on-line mailing service (MailChimp), to enable quick reports to be issued to all Clients in the event of needing to be alerted to system and service updates.
6. PRICES AND QUOTATION
6.1 Any quotation is valid from the date of quotation for a period of 30 days unless otherwise agreed by us. If after the quotation has been agreed our prices are increased, then these prices may be carried forward to you following a period of 30 days’ notice. Unless otherwise indicated all prices are excluding Value Added Tax (VAT).
7.1 If any payments to be made under The Agreement shall be subject now or in the future to taxes, levies or charges of whatever kind in the country in which we are incorporated and/or operating and which you or we are required to pay or which we are required to withhold, you shall pay such sums as shall yield to us after payment or withholding of such taxes, levies or charges the full amounts payable to us under The Agreement as if such taxes, levies or other charges were not paid or withheld. In this clause you shall include any assignee of any of its rights hereunder.
7.2 You shall pay to us in consideration for services provided; such fees shall be confirmed in writing to you and may, at the discretion of us, be invoiced for in staged payments.
7.3 When giving an estimate or indication of price – in writing or orally – we will exercise skill and judgement in doing so. Such estimates are subject to the accuracy of the information supplied by you and hence estimates may be amended.
7.4 On signing to the annual management, you will be required to pay in advance for orders prior to goods being dispatched until a good credit rating has been achieved at which time you will be provided with 30-day payment terms.
7.5 You are responsible for payment of your own bank fees for invoices raised by us.
7.6 Goods will remain the property of us until payment has been received in full.
7.7 You shall pay us for any services provided such fees as shall be confirmed under The Agreement. In addition to fees payable, we shall be reimbursed by you for all reasonable costs and expenses incurred whilst under the provision of the consultancy service provided. Such costs and expenses must be agreed by you prior to the corresponding reimbursement. In case of any discrepancy about such costs and expenses, the parties will engage to reach an amicable agreement.
7.8 Where payment is not received in accordance with para 7.4 30-day terms, we reserve the right to withhold the dispatch of any further stores or services until outstanding invoices are cleared. If funds remain outstanding at 60 days, any electronic subscription services whether paid for or not will be turned off until outstanding funds are received.
7.9 We understand and will exercise our statutory right to claim interest and compensation for debt recovery costs under past due payment legislation if we are not paid according to agreed credit terms stated at paragraph 7.4.
8. DELIVERY TIMES
8.1 Dates given are as per prior discussions with the operating crew and Captain of The Vessel. We shall not be held liable for any delay unless those delays are of a direct result of incorrect procedures by us. We shall track all shipments based on the current on board folio, publications within time and in accordance with local laws, regulations and codes applicable to the charts and publications in question.
9. NEW EDITIONS
9.1 The Vessel will automatically receive notification of all new editions using the personal audits carried out by us or our charting software. These will only be new editions against the vessels current outfit and as agreed with crew or management representative. The issues of new editions will be charged at the current UKHO prices for specified items be they charts or publications.
10. CHART CORRECTIONS
10.1 We will ensure The Vessel automatically receives all relevant paper and electronic chart corrections against the on-board outfit on a weekly basis including all Pilot corrections via our in-house correction software, NaviGate, or other agreed third-party regulatory approved software to which we are privy.
10.2 The system used for all transmission of weekly chart corrections will remain at the discretion of the Vessel. Vessels signing to our navigation management service will be encouraged to subscribe to the NaviGate software licensed as a product of ours and accepted by the UK Hydrographic Office (UKHO) as a legal means of downloading chart correction updates for both official paper and electronic charts.
10.3 As a distributor for the UKHO, we will supply all Admiralty Digital Products (ADP’s) and Admiralty Electronic Nautical Publications (AENP’s) plus their associated corrections in accordance with UKHO guidelines.
11. NOTICE TO MARINERS
11.1 Guidance on the means by which the Vessel under this service agreement will receive either or both paper and electronic Weekly Notice to Mariners (NtM’s) will be discussed prior to signing with us.
12. DIGITAL CHARTING
12.1 The Vessel will receive the corrections for all subscribed and licensed Digital Charts and Digital Products (such as ADP’s and AENP’s) currently under contract. This data will be supplied through NaviGate or other regulatory approved software.
13. LIABILITY AND INDEMNITY
13.1 We shall dedicate such time, attention and skill as may be reasonably necessary for the proper performance of the obligations under this agreement.
13.2 In this clause Delegate(s) means:
Employees and agents of ours. Any person or company to whom performance of work or services under The Agreement is delegated or sub-contracted by us.
13.3 We or any delegate shall not be liable to you for any loss, liability, damage, cost, claim or expense suffered or incurred by you in connection with or arising from the services provided by us unless there is negligence and / or wilful misconduct on the part of us.
13.4 It is assumed that you undertake to name us or any such delegate as an additional insured under any third-party liability insurances throughout the duration of which any services are provided.
14. OBLIGATIONS AND LIMITATION OF LIABILITY
14.1 If the goods supplied by us or our contracted direct supplier are not what you ordered or are damaged or defective or the delivery is of an incorrect quantity, we shall have no liability to you unless you notify us by e-mail (email@example.com) of the problem within 14 days of the delivery of the goods in question. Delivery is considered to be the date of the courier showing the date of arrival at the destination in accordance with their tracking software and waybill number.
14.2 If you have not received the goods ordered within 30 days of the date on which you ordered or expected delivery, we shall have no liability unless you notify us by e-mail (firstname.lastname@example.org) of the problem within 40 days of which you ordered or expected delivery of the goods, whichever is the later date.
14.3 If you bring a delivery or order problem to us under condition 14.1 and 14.2, our only obligation will be, at our opinion:
14.3.1 To make good any shortage or non-delivery
14.3.2 To replace or repair the goods that are damaged or defective; or
14.3.3 To refund you the amount paid by you for the goods in question together with any agreed costs incurred by you in returning any incorrect or damaged goods if so agreed to by us.
14.4 We shall not be held responsible for the completion of charting corrections or publication corrections forwarded to the vessel. All proof of shipping and delivery advice notes are recorded to ensure a successful delivery is made to you via our shipping agent and to verify arrival dates. Once these corrections are on board it is then the responsibility of the Captain and/or Crew to ensure they are completed in the correct manner, filed and recorded as on-board maintenance, internal procedures and Flag State regulations require.
14.5 We shall not be held responsible for any accidents or damage incurred whilst the vessel is underway for navigation purposes. We shall also not be held responsible for any damage incurred to vessel or crew following miss-use of navigational information.
14.6 We are not to be held responsible for any incidents occurring from the use of Third-Party navigational information / software or correctional data such as electronic navigation charting software or such like. This is to be used following all manual instructions and at no time be misused.
14.7 We shall not at any time be held responsible for any routing planned using the information / navigational data supplied by us. This is at all times to be used at the discretion and under the responsibility of the vessel’s Captain.
14.8 We act on behalf of the UKHO and other reputable suppliers as providers of navigational services, consultancy and supplies to ensure you are supplied as required and requested. All copyright of any sold products is held with the product creator and thus each individual establishment’s Terms and Conditions apply herewith.
14.9 Nothing in this condition is, however, intended to limit any rights you may have as a consumer under English Law or under any applicable local law which may not be executed by law, nor in any way to exclude or limit Our liability to you for any death or personal injury resulting from its negligence.
15. FORCE MAJEURE
15.1 Neither party to The Agreement shall be in breach of any obligation hereunder (other than your obligations to make payment of any monies due to us) insofar as performance thereof has been delayed hindered, interfered with or prevented by any circumstances beyond its reasonable control.
15.2 If either party is affected by Force Majeure it shall forthwith notify the other party of the nature and extent thereof.
16. DURATION AND TERMINATION
16.1 Subject to clause 16, this Agreement shall come into force on the date hereof and shall continue in force until terminated by either party giving to the other at any time not less than one-month prior written notice to expire on or at any time after the end of the initial 12-month period.
16.2 Without prejudice to any other rights to which it may be entitled, either party shall be entitled to terminate this Agreement forthwith by written notice to the other if:
16.2.1 an encumbrance takes possession, or a receiver is appointed over any of the property or assets of that other party:
16.2.2 that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
16.2.3 that other party goes into liquidation (except for the purpose of amalgamation or reconstruction and in such a manner that the person resulting there from effectively agrees to be bound by or assumed the obligations imposed on the other party under this Agreement):
16.2.4 that other party ceases, or threatens to cease, to continue business
16.3 Upon termination of this agreement by either party, any outstanding monies owed to us by you must be settled and confirmed by our accounts department as received and complete prior to any electronic licences or products being handed to an alternative supplier for your support. Failure to do so will result in our contacting said supplier to ensure your services are suspended until we have received all outstanding payment.
16.4 Payments by you towards our service management fee will not be refunded to you if you chose to terminate our support services prior to the end of the annual period to which subscribed. Vessels who annual support has been frozen while in refit or deep maintenance and with an agreed re-start date, will forfeit the refund of any service management fee if they chose to terminate our support services.
17. CONSEQUENCES OF TERMINATION
17. 1 Upon termination of the Agreement in accordance with clause 16:
17.1.1 clause 5 (confidentiality) shall continue in force in accordance with its terms:
17.1.2 subject as otherwise provided herein and to any rights or publications which have accrued and have not been extinguished prior to termination, neither party shall have any further obligations to the other under the Agreement nor the vessel shall cease to have any entitlement to compensation for services offered from the effective date of termination.
18. APPLICABLE LAW AND ARBITRATION
18.1 The proper law of this Agreement is English Law and English Law shall be used in interpreting The Agreement and for resolving all claims or disputes arising out of or connected with The Agreement (whether based on contract, tort, or any other legal doctrine). Any such claim or dispute not settled by negotiation shall be settled by arbitration in London under the rules of the London Court of International Arbitration. The language of the Arbitration shall be English.
19. INTELLECTUAL PROPERTY RIGHTS OF PRODUCTS
19.1 You may not at any time use the Intellectual Property Rights of the products sold by us. Any license sold for third party software is covered under each individual product's own Terms and Conditions.
20.1 There shall be no forgoing, waving or varying of any Terms and Conditions by or on behalf of us unless confirmed in writing by us. Nor shall you be entitled to rely on any promise or indication that such a written confirmation will be forthcoming. Any variation of these Terms and Conditions shall not be binding unless set out in writing and signed by representatives of each party.