General Terms and Conditions
“Ancillary Services” shall refer to any services to be performed on land or offshore which usually but not necessarily stand in connection with the services of Vessels or Equipment such as but not limited to agency, customs clearance or the disposal of waste (water), the preparation of market analyses or market reports or assistance in obtaining Certificates of Equivalence or other certificates or authorizations for and on behalf of Owners;
“Brokerage Services” shall mean, unless otherwise agreed between the Parties in writing, the services as defined in Clause 3 hereunder;
“Brokered Services” shall mean all and any services for which Brokerage Services are provided by GRS, including but not limited to Brokerage Services in connection with Vessels, Equipment or Ancillary Services;
“Clients” shall mean any party requesting Brokerage Services or for whom Brokerage Services are requested in connection with a Project;
“Contract” (including any “Follow-Up Contract” as defined in Clause 5) shall mean the agreement entered into between the Clients and the Owners in connection with a Project for which Brokerage Services have been supplied by GRS;
“Equipment” shall refer to and include all and any appliances such as but not limited to Containers, Accommodation Modules, Cranes, Turntables, ROVs (whether including pilot or other services connected therewith or not);
“GRS” shall refer to GRS Global Renewables Shipbrokers GmbH, Stadthausbrücke 7, 20355 Hamburg, and any of its employees, managing directors or agents;
“Information” shall refer collectively to all and any information and documentation in any form (whether oral or in writing, whether on paper or in digital form) with regard to and in connection with any Brokered Services or requests thereof such as but not limited to any technical and any operational details, Vessel names, types and details of Equipment and/or scope of Ancillary Services, characteristics of the worksite, weather conditions, base-port and wind park, Client/Owner and end Client/Owner details, and/or relevant interfaces to third parties, as supplied by the respective Owners or Clients;
“Owners” shall refer to any registered or disponent owner, manager, operator, time charterer, bareboat charterer, or any other party having at the relevant time ability to dispose over a Vessel or over Equipment as well as to any service provider having at the relevant time the ability to dispose over Ancillary Services;
“Parties” shall collectively refer to Owners and Clients; “Party” shall refer to either Owners or Clients, as the case may be;
“Payments” shall be understood as all and any moneys payable for Brokered Services (excluding any VAT or other taxes), including hire, day rates, freight, mobilization/demobilization costs, as well as payments for weather down times (be it lumpsum or otherwise);
“Project” shall refer to any offshore or maritime construction or activity or service request or any service related hereto occasional onshore as well;
“Remuneration” shall mean the commission and other amounts payable to GRS as per Clause 5 hereunder;
“Vessel” shall refer to all and any marine structures, whether self-propelled or not, including but not limited to jack-up rigs, platforms, ships, barges, CTVs or similar.
These General Terms and Conditions shall apply to all and any Brokerage Services provided by GRS for any Party, irrespective whether Brokerage Services are supplied via email, telephone, in person or in writing (fax or letter).
3. Scope of Services
Unless otherwise agreed expressly otherwise in writing, and subject to Para. 3 hereunder, the Brokerage Service supplied by GRS shall consist solely of the forwarding of Information as defined herein between the Clients and Owners (and vice-versa) on potential availabilities of a Vessel, Equipment or of Ancillary Services as requested by the respective Party in connection with a particular Project.
Under no circumstances is GRS to be understood as acting as agent or representative of any other Party, nor will obligations of GRS arise vis-à-vis either Clients or Owners or any other third-party other than those relating to the forwarding of Information between the Parties with a view to bring the Parties together to enter into a Contract. In particular, GRS shall not warrant or guarantee the successful conclusion of a Contract between the Parties.
In individual instances GRS may agree to supply particular Ancillary Services – namely assistance to Owners in obtaining Certificates of Compliance or other relevant certificates from German authorities, the preparation of market analyses or valuations – directly for a Party in its own name against an agreed specific remuneration. Unless otherwise agreed, in such cases Clauses 4 and 5 of these General Terms and Conditions do not apply.
All and any Information has been supplied to GRS by the Parties or any other third parties and GRS has not ensured nor does GRS warrant that any such Information is correct and/or valid. It is the obligation of the Parties to check the correctness and validity of the Information which is forwarded by GRS.
5. Remuneration and Expenses / Follow-Up Contracts
GRS shall be entitled to a commission on all Payments for Brokered Services under a Contract in addition to any documented and reasonable expenses incurred in direct connection with the performance of the Brokerage Services (the “Remuneration”). This Remuneration shall accrue upon entering into of the Contract between the Parties, a copy of which is to be sent to GRS upon demand. For the avoidance of doubt, no changes or amendments made to the Contract after it has become validly binding between the Parties will diminish the Remuneration as accrued for GRS.
The amount of commission due to GRS on all and any Payments for Brokered Services under a Contract shall be individually agreed on a case-by-case basis. Only in the event that no specific agreement on the amount of commission exists a commission of 2.5 % on all Payments shall apply.
Remuneration shall accrue under the Contract but as well as to any future contract between the Parties in connection with the Project, irrespective of whether this was expressly agreed in the original Contract or not (the “Follow-Up Contract”) and irrespective of whether Brokerage Services have been supplied by GRS in connection with the Follow-Up Contract. For avoidance of doubt, no Remuneration shall accrue under any future contract between the Parties not connected to the same Project for which Brokerage Services were not supplied by GRS.
Unless otherwise agreed in writing, and notwithstanding Para. 5 hereunder, Owners shall accept responsibility for payment of the Remuneration. Owners shall submit to GRS copies of all invoices rendered to Clients for all Brokered Services and the Remuneration shall be due and payable to GRS at latest five (5) working days after the respective invoice has been rendered by GRS to Owners, and Owners have received payments from the Clients. Any such Remuneration shall be payable in cash without set-off counterclaim or deduction and shall be wholly non-refundable.
Even if one of the Parties is named as the primarily responsible Party for payment of any Remuneration to whom the Remuneration due to GRS will be invoiced (as Owners are as per Para. 4 above or as may be agreed between the Parties), in any event both Parties shall be jointly and severally liable for all and any Remuneration vis-à-vis GRS.
6. Limitation of Liability and Indemnity
GRS shall not be liable towards the Client, Owners or any other third-party for any loss, damage, delay or expense of whatever nature, whether indirect or direct, and howsoever arising in the course of the performance of any Brokerage Services for the Parties, unless such loss, damage, delay or expense has been caused by gross negligence or willful misconduct of GRS.
Owners and Clients shall at all times jointly and severally indemnify GRS against all claims, charges, losses, damages and expenses which GRS may incur in connection with the fulfilment of Brokerage Services towards the Parties. Such indemnity shall extend to all acts, matters and things done, suffered or incurred by GRS, notwithstanding any termination hereof, provided always, that this indemnity shall not extend to matters arising by reason of the willful misconduct or gross negligence of GRS.
All and any Information forwarded to a Client is exclusively meant for the particular Party. The Party is expressly prohibited to forward any such Information to any third-party without the prior written consent of GRS. In case of a breach of this confidentiality obligation by a Party which leads to a contract being entered into between the third-party or any further party to which the third-party has forwarded the Information and a Client in connection with the particular Project, then the Party having breached this confidentiality obligation is obliged to pay the Remuneration as per Cl. 5 hereunder.
8. Time Bar
All and any claims between the Parties must be immediately notified and will be timebarred after twelve (12) months after they have arisen.
9. Applicable Law
This Agreement shall be subject to and is construed in accordance with the laws of Germany excluding conflict of laws rules and excluding the rules of the Vienna Convention of the International Sales of Goods (CISG).
The place of performance (“Erfüllungsort”) shall be Hamburg and the Courts of Hamburg shall have exclusive jurisdiction for any disputes in connection with Brokerage Services provided hereunder as well as the validity of these General Terms and Conditions and/or their valid incorporation into the legal relationship between GRS and Owners and/or Clients.
Should any provision of these terms for any reason be declared by any court or tribunal of competent jurisdiction to be invalid or unenforceable, these terms shall remain in full force and effect in other respects, as if such provision had not been included. The invalid or unenforceable provision shall be deemed replaced by a valid provision, the effect of which comes as close as possible to the intended effect of the invalid or unenforceable provision.
GRS Global Renewables Shipbrokers GmbH | March 2015