AGREEMENT FOR SERVICES: GENERAL TERMS, CONDITIONS & LIMITATIONS

Marine Technical Surveyors, Inc. (hereinafter “MTS”) undertakes to provide and perform Services in accordance with these general terms, conditions and limitations (hereinafter “Terms and Conditions”). Services offered by MTS are the examination, observation, measurement and/or analysis of commodities, products, cargoes, and/or items shipped and/or stored in bulk, for the purpose of providing information to the Client, and such third parties as the Client may designate, subject to the following Terms and Conditions, including limitations of liability, and rejection of third-party beneficiaries, as set forth hereinafter. The term “Client” as used herein shall signify the party requesting Services from MTS and shall include the party paying for such Services, if different from the party requesting the Services.

All offers and/or tenders for the performance of Services made by MTS are subject to these Terms and Conditions and all resulting contracts, agreements, work orders, or other arrangements for the performance of Services will, in all respects, be governed by these Terms and Conditions. All requests and orders for Services from MTS must be accompanied by sufficient information, product specifications, and instructions from Client to enable MTS to evaluate and/or perform the Services requested and Client warrants the accuracy thereof. All Services provided by MTS for its Clients, including any reports, weights, drafts, measurements, tonnages and/or capacities, issued or produced, may be relied upon by Client only subject to the following Terms and Conditions:

1. SERVICES AND DISCLAIMER OF WARRANTIES

MTS warrants solely to the Client that its Services shall be performed in a workmanlike manner consistent with a level of care or skill ordinarily exercised by other companies providing like Services, under similar circumstances, in the same locale. Client is required to ensure that adequate information and instructions are given to MTS in sufficient time to enable the requested Services to be performed timely and effectively. MTS MAKES NO OTHER REPRESENTATIONS AND NO OTHER WARRANTIES ON WEIGHTS, DRAFTS, OR TONNAGES, AND/OR FITNESS FOR PARTICULAR PURPOSE, IN THE PERFORMANCE OF SERVICES, REPORTS PRODUCED, MEASUREMENTS MADE, OR CAPACITIES MEASURED. CLIENT AGREES BY ACCEPTING THE SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS TO WAIVE ALL OTHER STATUTORY, EXPRESS, AND/OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, CONDITION, DURABILITY, DESIGN, CAPACITY, DIMENSION, SIZE, PERFORMANCE AND/OR FITNESS FOR A PARTICULAR PURPOSE.

2. CLIENT RESPONSIBILITY

Client is responsible for the conditions on, in, and around the site where Services are requested to be performed and must advise MTS of all material conditions in, on, and around the site, and must provide all information required to enable MTS to perform the requested Services safely and efficiently. Client warrants fitness of the site for the Services requested and must promptly take all necessary measures to remove and/or cure any impediments or obstacles to MTS performing said Services. Client must notify MTS in advance of any known or latent hazards or dangers associated with any site(s) where Service(s) are requested and/or contracted for. Client warrants to MTS that all information and documentation provided to MTS in relation to the Services requested and/or ordered is true, accurate, and complete, and if any samples are submitted by or on behalf of Client, Client further warrants such samples are indicative of the whole.

3. CONTRACTOR

MTS acts solely as a contractor for the Services under these Terms and Conditions and may, at its sole discretion, delegate performance of any part, or the whole, of the Services contracted for by Client, to any subcontractor, inspector, or entity whom MTS deems reasonably capable of providing the level of care or skill ordinarily exercised by other companies providing like Services, under similar circumstances, in the same locale. Client agrees that all such Services performed by such subcontractor(s) and/or third party(ies) shall be subject always to these Terms and Conditions and, where any performance is delegated, the term “MTS” as used in these Terms and Conditions shall be interpreted to include such subcontractor(s) and/or third party(ies), except that only an officer of Marine Technical Surveyors, Inc. may authorize modification, amendment, waiver or assignment of these Terms and Conditions.

4. JURISDICTION AND GOVERNING LAW

These Terms and Conditions, and all Services performed pursuant hereto, shall be governed by, and interpreted in accordance with, the laws of the State of Louisiana, but without regard to its conflicts of laws rules. All disputes, claims, and/or causes of action arising out of or in connection with these Terms and Conditions, and/or any Services provided pursuant hereto, shall be filed in the 23rd Judicial District Court, State of Louisiana, or in the United States District Court for the Middle District of Louisiana, to the exclusion of any other courts or tribunals.

5. MODIFICATION OR AMENDMENT

Any modifications, amendments, or waivers of these Terms or Conditions, or changes whatsoever to these Terms and Conditions, shall be effective only if made in writing and executed by an officer of MTS, and by an officer or duly authorized agent of Client.

6. LIMITATION OF LIABILITY

MTS shall not be liable for any claim, either directly or indirectly, in contract, tort, warranty, negligence, strict liability, and/or for any breach of contract, breach of warranty or for failure to exercise due care, for any amount in excess of the fee paid to MTS (or fee charged by MTS if the fee is not paid) for the Services giving rise to such claim, or in the amount of Ten Thousand Dollars ($10,000.00), whichever is the lesser amount. Multiple successive, or repetitive act(s) and/or omissions which are alleged to operate to produce one claim, whether classified as separate act(s) or omissions, or whether claimed under separate legal theories, which are covered by one charge for Services, shall be considered one claim for purposes of this Limitation of Liability. This Limitation of Liability may be increased by Client, but only prior to MTS’s acceptance of a request or order for Services, only for an agreed increased price for such Services, and only where such increase in liability is made in writing by amendment, modification, or change to the limitation of liability in accordance with Clause 5 above.

7. WAIVER OF CONSEQUENTIAL DAMAGES

MTS shall in no event be responsible or liable for any indirect, incidental, consequential, punitive, or special damages, nor will MTS be responsible for loss of profit, loss of business, loss of business goodwill, business interruption, and/or cancellation of any contract(s), regardless of whether such claims arise directly or indirectly, or by operation of negligence, gross negligence or lack of due care. Client acknowledges and agrees that the rates for Services charged by MTS reflect these waivers and an increased rate for Services would otherwise be charged.

8. ACCEPTANCE

Client agrees that acceptance of these Terms and Conditions is a material element of MTS’ agreement to perform the Services requested and if an order or request for Services is initiated by Client, prior to Client’s receipt of or acknowledgment of these Terms and Conditions, either as an accommodation for Client or at Client’s request, then both parties shall consider that the commencement of performance of Services constitutes formal acceptance of all these Terms and Conditions. In the event Client uses a purchase order or other document to describe the Services it has requested, or to provide product, commodity, cargo details, or other material information and/or data, the use of such form shall be for convenience purposes only and any additional or conflicting terms it may contain are hereby stricken, and shall be null and void. This Agreement shall not be assigned by Client to any other party without prior written consent of MTS and such consent shall only be given subject to these Terms and Conditions.

9. NO GUARANTEE ON QUALITY OR QUANTITY

MTS makes no guarantee as to the quality or quantity of the commodities, products, cargoes, items shipped and/or stored in bulk for which Services are requested or ordered and expressly disclaims liability as a guarantor or insurer against loss, damage, diminution in quantity, diminution in quality, and/or diminution in value of the commodities, products, cargoes, items shipped and/or stored in bulk for which Services are requested or ordered.

10. OWNERSHIP OF DOCUMENTS

Work product and intellectual property, such as reports, measurements, tonnages, capacities, loss, data, calculations, and the like, prepared by MTS, shall remain MTS’ property. Proprietary concepts, systems, and ideas developed during performance of the Services under these Terms and Conditions shall remain the property of MTS and be maintained in accordance with MTS’ document retention policies and practices.

11. SEVERABILITY

If any Court having jurisdiction as set forth in the Terms and Conditions declares any provision or part of these Terms or Conditions invalid or unenforceable, then these Terms and Conditions will be considered divisible and in such event the unenforceable and/or invalid part(s) and/or provision(s) shall be modified only insofar as to allow compliance with the law as so decreed and for that proceeding only, and the remainder of these Terms and Conditions will be interpreted as though the Terms or Conditions so modified were originally included in these Terms and Conditions. As an example of the foregoing, should any indemnification provision of these Terms and Conditions be declared null and void, then it is the intent of MTS and Client that such part or provision of these Terms and Conditions be modified only so far as to comply with the law as stated by that court and only for those proceedings. Notwithstanding the foregoing, should any court which has jurisdiction over these Terms and Conditions refuse to modify the part(s) or provision(s) of these Terms and Conditions, and instead declare it null and void, than the remaining Terms and Conditions shall be severable and divisible, and continue in effect.

12. INDEMNITY AND HOLD HARMLESS

Client shall indemnify and hold harmless MTS, its officers, employees, agents, representatives, contractors and sub-contractors, and any other parties or persons performing Services for or at the request of MTS under these Terms and Conditions from and against any and all claims, suits, causes of action, liabilities (including costs of suit, consultants, experts, and attorneys) arising directly or indirectly, out of or in connection with:

• a) Any claims, suits, proceedings, actions or investigations by any government or governmental authority, agency, department, bureau, or other government entity, arising out of any actual or asserted failure of Client to comply with any law, ordinance, regulation, rule, order or any mandate whatsoever of said governmental or judicial authority.
• b) Claims, suits, causes of action(s), agency proceedings, or any decisions from any other court or tribunal in any jurisdiction or under any governing law other than those specified in the “JURISDICTION AND GOVERNING LAW” section herein.
• c) Claims, suits, causes of action(s) or any decisions from any other court or tribunal in excess of the LIMITATION OF LIABILITY section set forth herein.
• d) Liability for any claims, losses, damages, and expenses to the extent such claims, losses, damages, or expenses are caused by negligent acts, errors, or omissions caused or contributed to by Client, its officers, employees, agents, representatives, contractors and sub-contractors, and any other parties or persons performing any obligation of Client under these Terms and Conditions.

13. SITE ACCESS AND SAFETY

Client shall secure and obtain all necessary site access and such access to site approvals, permits, licenses, and consents necessary to commence and complete the Services requested and will execute any necessary site access agreement(s) to allow MTS access for the purposes of the Services requested. MTS will be responsible for supervising its own employees, but shall not be responsible for the supervision or any health and safety precautions for any other parties, including Client, Client’s contractors, subcontractors, or any other persons present at the site.

14. FORCE MAJEURE

MTS shall in no event be liable for any delay or failure to perform any Services under these Terms and Conditions to the extent that such delay or failure to perform occurs due in whole or in part to:

• a) Tropical storms, ice storms, earthquakes, tidal waves, flooding, lightning, fires, explosions, or volcanic activity;
• b) War (whether declared or not), riots, civil war, revolution, acts of terrorism, military action, sabotage, civil insurrections, and/or piracy;
• c) Strikes, labor stoppages, labor interruptions, labor disputes or restraint of labor from whatsoever cause, whether partial or general;
• d) Failures or interruptions of utility providers, including but not limited to telecommunications, electricity, gas, and/or internet services;
• e) Act(s) of God;
• f) Inherent vice or condition of the commodities, products, cargoes, items shipped and/or stored in bulk for which Services are requested or ordered;
• g) Quarantine restrictions, restraint or seizure under legal process, or any governmental action causing any delay in performing or any failure to perform, the Services covered under these Terms and Conditions.

15. NOTICE OF CLAIM AND ONE YEAR SUIT LIMITATION

Notice of any claim by Client against MTS must be made within sixty (60) days of the date on the written report or other document recording the weight, measurement, test, survey, or other inspection result, upon which the Client makes claim, and the failure to provide such written notice within sixty (60) days of the date of the document shall result in a presumption that the services culminating in such written report or other document recording the weight, measurement, test, survey, or other inspection result were performed with due care in accordance with all applicable standards and within these Terms and Conditions. In no event shall MTS be legally liable unless suit is filed in a jurisdiction specified herein within one year of the earlier of: (1) the date of the Services upon which Client makes claim; or, (2) the date of the written report or other document recording the weight, measurement, test, survey, or other inspection result. Claims or causes of action arising out of MTS’s Services pursuant to these Terms and Conditions, regardless of cause(s) or the theory of liability, including negligence, indemnity or other claim for recovery which are not filed within this one year suit limitation shall be forever barred and may not be used as set-off or recoupment.

16. CLIENT’S WARRANTIES AND OBLIGATIONS

Client warrants and represents that it is authorized to procure the Services offered by MTS, and further warrants that any information, documentation, samples, weights, measures, descriptions, and details regarding the commodity(ies), product(s), cargo(es), items shipped and/or stored in bulk, for which Services are provided, shall be true, accurate, complete, representative of the whole, and not misleading in any respect. Client acknowledges that MTS will rely on such information, documentation, samples, weights, measures, descriptions, and details regarding the commodity(ies), product(s), cargo(es), items shipped and/or stored in bulk, which are provided by the Client and that MTS will undertake no confirmation or verification of the accuracy or completeness thereof.

17. HAZARDOUS SUBSTANCES

Any Services requested by Client in relation to substances classified, defined, by any federal, state, municipal, local, or other governmental authority shall be undertaken only if Client informs MTS of the hazardous or toxic nature, provides MTS with all applicable Safety Data Sheet(s) (“SDS”) and fully complies with disclosure requirements in the CLIENT’S WARRANTIES AND OBLIGATIONS section set forth above. Any samples of any substances identified or determined to be hazardous or toxic, as set forth above, shall be considered the property of Client for purposes of handling and disposal; however, MTS may undertake to dispose of the samples, at its sole discretion, in which case costs and risks of disposal and transportation related thereto shall be solely born by Client. Client agrees to indemnify MTS for any costs, damage(s), injury(ies), or harm resulting from the handling, disposal and transportation related thereto.

18. PRELIMINARY REPORTS

MTS may provide preliminary reports, weights, drafts, measurements, tonnages and/or capacities, but such preliminary reports, weights, drafts, measurements, tonnages and/or capacities, issued or produced may only be relied upon by Client at Client’s sole risk and MTS shall bear no liability whatsoever in connection with any difference or deviation between the final report and such preliminary reports, weights, drafts, measurements, tonnages and/or capacities.

 

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