Terms and Conditions

TERMS AND CONDITIONS AND LIMITED WARRANTY

I. Applicability

These Terms and Conditions and Limited Warranty (hereinafter, the “Terms”) shall apply to all contracts, including, but not limited to, contracts for the furnishing or performing of services, parts, and/or technical and engineering services (hereinafter, the “Services”, “Parts”, and “T&E”) between RSG Marine Services LLP (hereinafter, “RSG”) and its vendors or customers (hereinafter, the “Buyer”). These Terms, together with the purchase order of RSG, and any written agreement signed by both RSG and Buyer (hereinafter, collectively, the “Parties”), shall constitute the entire and complete agreement between the Parties (hereinafter, the “Contract”). No other terms, including any terms and conditions that Buyer may purport to apply from written communications (including emails and text messages), trade, custom, practice, or course of dealing shall be included the Parties’ Contract unless such terms and conditions are set forth in a formal written agreement or addendum signed by the Parties. The Services, Parts, and/or Software specified in the Contract shall hereinafter be referred to as the “Job”.

II. General Provisions

RSG’s performance of the job pursuant to the Parties’ Contract is expressly conditioned upon the acceptance of these Terms and the other provisions of the Contract by Buyer without any modification. Acceptance by Buyer of RSG’s performance or Buyer’s performance, whether partial or full, under Contract, shall be deemed to be Buyer’s irrevocable acceptance of these Terms and all other provisions of the Contract.

Specifications. The quantity, quality, and description of the services, parts, or software furnished by RSG pursuant to the contract shall be those specified by RSG in its proposal.

Payment and Price. Prices quoted and availabilities stated by RSG are valid for ten (10) calendar days, unless another time is specified in writing by RSG. Payment is due upon Buyer’s receipt of the invoice. Local fees and/or taxes shall be the sole responsibility of Buyer and no deduction, set-off, or offset shall be made to the invoiced amount. Buyer shall make all payments in full within thirty (30) days of receipt of the invoice (or within thirty (30) days of any other monetary obligation being due). Past amounts shall accrue interest at a rate of 1.5% per month or the highest rate permitted by law, whichever is less. Time is of the essence. In addition to any other remedy available to RSG under the Contract, RSG’s obligations and continued performance under the Contract shall be contingent upon receipt of full payment by Buyer (including any interest).

Ownership of Work Product. To the extent that Job includes data, components, designs, utilities, objects, processes, tools, models, and specifications owned or developed by RSG prior to or independent from the Parties’ Contract (hereinafter, “Proprietary Components”), RSG shall retain ownership of such Proprietary Components. Provided that Buyer has paid all amounts due to RSG, whether invoiced or not by RSG, RSG hereby grants Buyer a limited, non-exclusive license to use such Proprietary Components. Parts and software developed or prepared specifically for Buyer shall be deemed to be works made for hire if agreed to in writing by RSG. Otherwise, such Parts and Software shall be Proprietary Components. For purposes of this section, there shall be a presumption that any software, data, components, designs, utilities, objects, processes, tools, models, and specifications furnished by RSG are Proprietary Components. RSG acknowledges that all materials, drawings, models, specifications, and other documents supplied by Buyer (“Buyer’s Materials”) and all rights in Buyer’s Materials are and shall remain in the possession of RSG until Buyer has paid all amounts due to RSG whether invoiced or not by RSG.

Services and Acceptance. RSG shall perform all Services and T&E services pursuant to the Contract with reasonable skill and care, using adequate materials and employing sufficiently qualified labor. Buyer shall notify RSG of any claimed default in RSG’s performance within five (5) calendar days of RSG completing the Job. Buyer’s failure to promptly (i.e., no later than five (5) calendar days) notify RSG in writing of any claimed default in RSG’s performance shall be deemed to be Buyer’s acceptance of RSG’s performance under Contract, shall be conclusive proof or RSG’s complete and satisfactory performance, and shall waive any right that Buyer may have had to reject RSG’s performance of the Job.

Delivery. To the extent that the Contract includes Parts, Parts are delivered Ex Works to RSG’s facilities, or such other locations as identified in the proposal (“Delivery”). Title of Parts will pass from RSG to Buyer upon Delivery. RSG DOES NOT PROVIDE OR OFFER ANY INSURANCE ON THE SHIPMENT OF PARTS. Shipping, delivery, and performance dates are estimates only, calculated from the date of receipt of Buyer’s order. RSG shall not incur any liability, direct or indirect, because of or as a result of any delays in meeting such dates or schedules. RSG may charge Buyer a storage fee in the amount of $100.00 per day for each day the Delivery is delayed by Buyer.

Cure Period. In the event that Buyer promptly notifies RSG of any claimed nonconformity or default in RSG’s performance on the Job and RSG is proved to have caused such non-conformity or default, RSG shall have the opportunity to cure such nonconformity or default within thirty (30) calendar days of its receipt of the written notice by Buyer, unless such nonconformity or default is of such a nature that it would impossible to cure same within thirty (30) calendar days, in which case RSG shall have a reasonable time to cure, provided it diligently proceeds with correcting and curing such nonconformity or default.

Return of Parts. Any returns of Parts in accordance with the provisions of any proposal shall be subject to a 25% restocking fee. No return of any Parts pursuant to this provision shall be accepted with respect to specially ordered Parts, and RSG shall have no obligation to accept any attempted return of Parts unless it agrees in writing to accept the return and provides a returned goods authorization number, which number mush accompany the returned Parts.

Change Orders. All change orders must be sent to RSG in writing before work is performed. If RSG agrees to Buyers change order request, RSG will either revise the existing purchase order or issue a new order.

III.  LIMITED WARRANTY

SERVICES

SUBJECT TO THE CONDITIONS, EXCLUSIONS, AND LIMITATIONS BELOW, RSG WARRANTS (I) THAT IT SHALL PERFORM ALL SERVICES IN ACCORANCE WITH INDUSTRY STANDARDS; AND (II) ITS WORKMANSHIP. THIS LIMITED WARRANTY SHALL BE EFFECTIVE FOR A PERIOD OF ONE (1) YEAR BEGINNING UPON THE COMPLETION OF THE SERVICES OR REDELIVERY OF THE VESSEL TO BUYER, AS APPLICABLE (THE ”SERVICE WARRANTY PERIOD”).

THIS LIMITED WARRANTY FOR SERVICES IS IN LIEU OF ALL OTHER WARRANTIES, AND RSG DISCLAIMS, AND BUYER WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED.

PARTS

SUBJECT TO THE CONDITIONS, EXCLUSIONS, AND LIMITATIONS BELOW, RSG WARRANTS THAT IT HAS GOOD TITLE TO THE PARTS, FREE FROM ALL LIENS AND ENCUMBRANCES, AND THAT IT HAS THE RIGHT TO SELL TH PARTS.

RSG HAS NO INVOLVEMENT IN THE DESIGN OR MANUFACTURE OF THE PARTS. THEREFORE, WITH RESPECT TO PARTS, RSG DICLAIMS, AND BUYER WAIVES SOLELY AGAINST RSG, ALL WARRANTIES WITH RESPECT TO THE PARTS, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MECHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. BUYER SHALL LOOK SOLELY TO THE MANUFACTURE’S WARRANTY FOR ANY CLAIM OF DEFECT WITH ANY PART. RSG HEREBY ASSIGNS ALL WARRANTIES OF THE MANUFACTURES OF PARTS TO BUYER, TO THE EXTENT THAT SUCH WARRANTIES ARE ASSIGNABLE.

TECHNICAL & ENGINEERING

SUBJECT TO THE CONDITIONS, EXCLUSIONS, AND LIMITATIONS BELOW, RSG WARRANTS THAT (A) FOR PARTS USED IN T&E, IT HAS GOOD TITLE TO THE PARTS, FREE FROM ALL LIENS AND ENCUMBRANCES, AND THAT IT HAS THE RIGHT TO LICENSE TO BUYER ANY SOFTWARE, PROGRAM, OR CODE DESCRIBED IN THE PROPOSAL; AND (B) THE T&E WILL SUBSTANTIALLY PERFORM TO THE SPECIFICATIONS OF THE CONTRACT FOR A PERIOD OF SIXTY (60) DAYS BEGINNING UPON RSG’S FURNISHING OF THE T&E (THE “T&E WARRANTY PERIOD”). THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND RSG DISCLAIMS, AND BUYER WAIVES ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MECHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

CONDITIONS, EXCLUSIONS, AND LIMITATIONS

UPON DISCOVERY OF A DEFECT, BUYER SHALL NOTIFY RSG IN WRITING WITHIN THIRY (30) CALENDAR DAYS AFTER DISCOVERY OF THE DEFECT; OR THE TIME AT WHICH THE DEFECT SHOULD HAVE BEEN DISCOVERED THROUGH RESONABLE DILIGENCE. TIME BEING OF THE ESSENCE, BUYERS FAILURE TO NOTIFY RSG OF THE DEFECT WITHIN THE TIMEPROVIDED IN THIS SECTION SHALL MAKE THIS LIMITED WARRANTY VOID.

RSG’S LIABILITY UNDER THIS LIMITED WARRANTY SHAL BE LIMITED TO, AT RSG’S OPTION, THE REPAIR, REPLACEMENT, OR THE REFUND OF THE PURCHASE PRICE OF THE DEFECTIVE PART, SERVICE, OR SOFTWARE. ANT REPAIR DOEN DURING THE WARRANTY PERIOD, WILL NOT EXTEND THE SERVICES WARRANTY PERIOD OR SOFTWARE WARRANTY PERIOD.

NO EMPLOYEE, REPRESENTATIVE, DEALER, OR AGENT OF RSG OTHER THAN ITS OWNERS ARE AUTHORIZED TO MODIFY, EXTEND, OR IN ANY WAY CHANGE THIS LIMITED WARRANTY. ANY PURPORTED CHANGE TO THISLIMITED WARRANTY MUST BE IN WRITING AND SIGNED BY EITHER OF THE OWNERS.

THIS LIMITED WARRANTY SHALL NOT BE ASSIGNABLE AND SHALL NOT INURE TO ANY THIRD PARTIES, EXCEPT AS OTHERWISE SPECIFICALLY REQUIRED BY APPLICABLE LAW.

THIS LIMITED WARRANTY IS EXPRESSLY CONDITIONED UPON THE FULL AND TIMELY PAYMENT BY BUYER OF ALL MONIES DUE UNDER CONTRACT. BUYER’S FAILURE TO TIMELY MAKE THE FULL, AGREED TO PAYMENT SHALL RESULT IN A WAIVER OF BUYER’S RIGHT TO SEEK RELIEF PURSUANT TO THIS LIMITED WARRANTY.

UPON NOTIFYING RSG OF ANY DEFECT, BUYER SHALL PROVIDE RSG WITH BILL OF SALE, INVOICE, OR DOCUMENTATION THAT CONSTITUTES THE CONTRACT BETWEEN THE BUYER AND RSG. BUYER’S FAILURE TO PROVIDE THE REQUIRED DOCUMENTATION SHALL ENTITLE RSG TO DEEM THE LIMITED WARRANTY VOID.

IN NO EVENT WILL RSG’S AGGREGATE LIABILITY UNDER THIS LIMITED WARRANTY EXCEED THE PURCHASE PRICE UNDER THE CONTRACT.

NOTWITHSTANDING ANY OF THE ABOVE PROVISIONS, THIS LIMITED WARRANTY DOES NOT APPLY TO OR COVER ANY DEFECT. BREAKAGE, FAILURE, OR DEFICIENCY ATTRIBUTABLE TO, RESULTING FROM, OR CAUSED BY ANY OF THE FOLLOWING: (A) IMPROPER USED, HANDLING, STORAGE, OR MAINTENANCE BY ANY PARTY OTHER THAN RSG; (B) CONDITIONS OUTSIDE OF (OR BEYOND) THE DESIGN LIMITATIONS OF THE EQIPMENT IN QUESTION; (C) ACCIDENTS OUTSIDE THE CONTROL OF RSG; (D) INTENTIONAL OR NEGLIGENT ACTS, VANDALISM, RIOTS, OR CIVIL DISORDER; OR € ACTS OF GOD, GOVERNMENTAL ORDERS, FIRE, OR OTHER CASUALTY.

IN THE EVENT THAT, AFTER RSG’S INSPECTION OF A PROSPECTIVE WARRANTY CLAIM, RSG DETERMINES THAT (I) THERE IS NO DEFECT, OR (II) THE DEFECT WAS NOT CAUSED BY RSG, THEN BUYER WILL BE INVOICED FOR ALL COSTS AND EXPENSES INCURRED BY RSG DURING THE INSPECTION OF THE PROSPECTIVE WARRANTY CLAIM.

IV. Limitation of Liability

RSG shall not be liable, directly or indirectly, in contract, tort, or otherwise, to the buyer, charters, underwriters, lienholders, or any other party in interest, for any damage to the vessel, its appurtenances, cargo, equipment, or movable stores, or any other personal property, or for any consequence thereof, unless such damage is caused solely by RSG’s gross negligence or intentional tort.

Notwithstanding anything else to the contrary in these Terms, RSG’s liability shall not exceed the quoted price on the Contract.

Buyer agrees to indemnify, defend, and hold harmless RSG with respect to all liabilities to any third party in excess of the amounts stated in this Section. 

In no event shall RSG be responsible for any damages resulting from delays caused by Buyer’s failure to perform Buyer’s obligations under the Contract, including, but not limited to, providing RSG with access to the vessel.

V. Vessel Warranties / Default 

Buyer warrants that a valid and current US Coast Guard Certificate of Financial Responsibility (Form CG-5358-10) shall be always kept in force while RSG is furnishing repairs, parts, or services pursuant to the Contract, along with any other warranties that are required or customary for the work described in the Contract.

Buyer shall be deemed in default upon the occurrence of any one or more of the following events, “Event(s) of Default”: (i) if any payment of any sum due to RSG is not paid promptly when due, with or without notice; (ii) if a petition is filed by or against Buyer (or vessel’s owner) seeking or acquiescing in any reorganization, arrangement, liquidation, dissolution, or similar relief under any laws relating to bankruptcy or insolvency; (iii)if any information, warranty, or representation by Buyer shall prove incorrect or false; or (iv) if Buyer fails to perform any non-monetary obligation under the Contract, including, but not limited to, giving RSG access to the vessel. Upon an Event of Default, RSG, at its option, may declare all unpaid monies immediately due and payable, discontinue performing the Job, and/or demand adequate assurances of performance by Buyer.

Furthermore, should Buyer’s failure to perform his/her/its obligations under the Contract, which failure requires RSG to expend additional money not initially contemplated by the Contract in order to complete the Contract (i.e., storage fees, travel expenses, re-hiring of technicians), Buyer shall be liable for such expenses and RSG shall be authorized to suspend its performance of the Contract until Buyer pays in full said expenses.

Nothing herein shall be deemed to constitute a waiver of RSG’s rights to and under maritime lien law, or any other remedy that may be available in equity or at law to RSG. In any dispute between the Parties for collection of monies owed by Buyer under the proposal or invoice, RSG shall be entitled to recover from Buyer all of RSG’s costs of collection, including, but not limited to, reasonable attorneys fees and expenses. In all other disputes, each Party shall bear its own attorneys fees and expenses.