SERNAVIMAR TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION OF TERMS
1.1. In these terms and conditions, the following definitions apply: Agreement means the agreement/s pursuant to which the Company agrees to provide Services to the Client in accordance with these Terms, whether such contract is verbal and/or in writing including any contract between the Company and the Client which is contained in or evidenced by the terms of a separate contract between the Client and a third party.
Affiliate means a company or other legal entity which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another entity;
Ancillary Services means the services set out at clause 3.3., and any other ancillary service entrusted to the Company by the Client.
Broking Services means the broking services set out at clause 3.2. provided by the Company.
Client means the party requesting the Services from the Company responding to the Company in relation to the provision of the
Services and shall unless the context requires otherwise include its officers, employees and agents. Where such party is acting as a Representative, references to the Client shall include the Principal;
Company means the company which is a member of the group which has been requested by the Client to provide Services or to which the Client has responded in relation to the provision of Services and shall unless the context requires otherwise include its officers, employees and agents;
Contract means the conclusion of the negotiations between shipowner and charterer, resulting in the charter of a ship and further means a contract or contracts, including but not limited to for the sale and purchase (including second-hand, new-building, recycling and demolition) construction, towage, or charter (including voyage, time, bareboat and contracts of affreightment) of a Ship.
Control (including the terms “controls”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of more than 50% of the equity securities or equity interests in such entity or the power to direct or cause the direction of the management and policies of such entity (whether through ownership of securities, partnership interest or other ownership interests, by contract, or otherwise).
Data Protection Legislation means the General Data Protection Regulation (EU/2016/679) (“GDPR”) and any successor regulation to the same.
Market Reports means market reports, commentary, catalogues, circulars or literature.
Negotiations communications, whether verbal or in writing, in relation to concluding a Contract.
Parties means together, the Company and the Client (each, a “Party”).
Post Contract Services means the Post Contract services set out in Clause 3.3.1. including the assistance with communications and/or operational matters arising after a fixture has been concluded and/or assistance with claims arising from the performance of a Contract.
Principal a party to a Contract including without limitation in any way whatsoever the owner, seller, buyer, builder or charterer of a ship and any party guaranteeing the obligations of such a party. Principal may include the Client.
Remuneration the remuneration payable to the Company for the provision of the Services, whether by way of commission or as otherwise agreed.
Representative a person or company, including but not limited to a ship manager, chartering department, ship company or other agent, who is not a Principal but is involved in negotiations having been duly authorised to negotiate on on behalf of a Principal.
Sanction(s) any and all sanctions imposed by European Union the United Nations or any national government or competent authority thereof.
Services the Services referred to in clause 3 of these terms and conditions and any other services as may be agreed.
Ship any type of ship, other vessel, platform, and/or equipment used or intended to be used for any purpose on, in or over water including but not limited in any way whatsoever to ocean-going vessels, coasters, ferries, yachts, flotels, rigs, jack-ups, submersibles, and barges.
1.2. Headings in these Terms are for convenience and ease of reference only and shall not affect their interpretation.
1.3. In these Terms, unless the context requires otherwise:
a. words in the singular shall be deemed to include the plural and vice versa;
b. references to persons shall include bodies of persons whether corporate or otherwise;
c. words importing the whole shall be treated as including a reference to any part of the whole;
d. references to a party includes its successors and permitted assigns;
e. references to Clauses are references to clauses in these Terms.
2. APPLICATION OF THESE TERMS AND CONDITIONS
2.1. These General Terms and Conditions (“Terms”) shall be effective from 18th October 2023 and from that date replace and supersede any previous versions of terms and conditions.
2.2. The Client confirms that it accepts these Terms on this basis by receiving the Services and, if a Representative, warrants and represents to the Company that it has the Principal’s authority to accept these terms on the part of the Principal on the same basis.
2.3. Attention is drawn specifically to the exclusion and limitation of the Company’s liability both in respect of the Services provided and generally as are set out in Clause 7 and the Remuneration payable to the Company in the event of cancellation at Clause 8.
3. SERVICES TO THE CLIENT
3.1. The Company provides Services to the Client when engaged to do so by the Client whether in response to a request from the Client to the Company for Services or to the offer by the Company to the Client of Services. The Company’s provision of Services is subject exclusively to these Terms which the Client acknowledges and accepts by its receipt of any Services of the Company.
3.2. Broking Services
3.2.1. The Company will act as a shipbroker in relation to Contract(s) and that role includes the introduction of Principals to each other or to the Contract, assisting the Principals and/or their Representatives by acting as a channel for Negotiations, preparation of the Contract and other documentation relating to the Contract and such Post Contract Services and/or other Services as may be agreed with the Client.
3.2.2. When engaged to provide Broking Services, it is the Client’s sole responsibility to decide:
a. whether to enter a Contract with the proposed counterparty and if so on what terms;
b. to assess and ensure for itself the validity, binding nature or enforceability of a Contract or any relevant security;
c. to seek or obtain security in connection to the Contract which it may consider to be necessary and
d. the status or standing, creditworthiness, ability to perform and good faith of the proposed counterparty. The Company takes no responsibility for these matters.
3.3. Ancillary Services
The Company may also agree to perform for the Principal other Ancillary Services such as providing Ship valuations and/or specific market research and/or Post Contract Services. Such Ancillary Services tasks may be subject to specific provisions in addition to these Terms and Conditions including without limitation in any way whatsoever the wording to be used in a valuation certificate and limitations regarding the Company’s role and liability for Post Contract Services. In the event of, and only to the extent of, a conflict between these Terms and Conditions and the specific provisions applicable to other tasks, the latter will prevail.
Otherwise, these Terms and Conditions, including those as to limitation of liability, will apply.
When engaged to provide Ancillary Services in addition to Broking Services, the Company shall provide the Client with assistance in relation to communications and operational matters arising from the performance of a Contract.
3.3.1. Post Contract Services
126.96.36.199. If the Company agrees to perform Post Contract Services the Client must comply with any requirement imposed by the Company including without any limitation whatsoever a requirement that the Client send operational and/or claims and/or claim documentation to a particular email address.
188.8.131.52. The Client must allow the Company a reasonable time before expiry of any applicable time limit to receive and process any time sensitive message and/or claim.
184.108.40.206. If the Client do not receive a prompt and same day written confirmation from the Company that it has received any time sensitive message and/or claim the Client must forthwith contact the Company by telephone to confirm that the message and/or claim has been received and in the absence of and pending written confirmation of receipt the message and/or claim will be deemed to have not been received.
220.127.116.11. The Company will have no liability for any failure to pass on any message and/or claim unless that message and/or claim has been sent to and acknowledged by the Company in compliance with this clause 3.3.1. (and subclauses) and in compliance with any other requirements stipulated by the Company.
3.3.2. Account Processing Services
When engaged to provide Ancillary Services involving account processing, the Company shall use reasonable endeavours to resolve any invoicing disputes between the Client and any supplier and/or owner.
3.3.3. Market Reports
18.104.22.168. Any Market Reports published by the Company, which may be provided to the Client either in connection with the Services or otherwise are provided for general information and convenience only and without any statement, representation or warranty as to their accuracy. Nothing in the fact of their being provided or in their content constitutes an offer, solicitation, advice or a recommendation of any kind, including without limitation, with respect to the Contract or for any other purposes whatsoever.
22.214.171.124. Market reports and/or commentary published by the Company is for general information only and does not constitute advice and nothing contained in such Market reports and/or commentary amounts to a recommendation to enter or not to enter a Contract.
126.96.36.199. The Client acknowledges, agrees and represents to the Company that it will not rely on the Market Reports in making any decision, financial or otherwise, and that any use by the Client of the Market Reports for any purpose shall be at Client’s sole risk.
188.8.131.52. The Company has no liability for the consequences of any person, including the Client, purporting to rely on such market reports when concluding any contract or commitment.
3.4. In relation to Broking Services and Ancillary Services the Company acts solely as broker and agent for and on behalf of the Client both in relation to any Contract and in all other respects.
3.5. Unless specifically agreed in writing the Company will act only as an intermediary in relation to Contract(s) and will not itself enter any Contracts arising from the Services as a Principal.
3.6. The Company is not responsible for the performance or non-performance of Contract(s) or Principals.
3.7. Unless otherwise agreed the Services are provided on a Contract by Contract basis.
4. OBLIGATIONS AND RESPONSIBILITIES OF THE COMPANY
4.1. Company Provided Services
4.1.1. Save in respect of Third Party Services (as to which see Clause 4.2. below), the Company will perform the Services:
a. In accordance with these Terms;
b. With the reasonable skill and care expected of a professional broker; and
c. In accordance with any applicable law or laws governing the Services or their subject matter.
4.1.2. When providing Broking Services the Company undertakes to pass on offers, counteroffers and other communications during Negotiations to and from the Client accurately and with reasonable promptness.
4.1.3. When providing the Services, the Company may deal with Representatives or other intermediaries and not directly with the Principal. In such a case, the Company deals in good faith as to the authority such other party possesses or states that it possesses but does not give any warranty or guarantee or make any representation as to that authority or the existence or validity thereof.
4.1.4. Whenever the Company provides any information of any sort to the Client in respect of any person or in respect of any Ship or other property (including but not limited to information regarding corporate structure or financial standing of any party) and whether in relation to a Negotiation, Contract or otherwise:
a. The Company provides the information honestly and in good faith;
b. The Company gives no warranty or guarantee or representation as to the accuracy or nature of any information provided;
c. The Client warrants and represents to the Company that it does not and will not rely upon any such information as warranted, guaranteed or represented by the Company as being accurate or otherwise endorsed by the Company as to its content;
d. The Client warrants and represents to the Company that it accepts that, notwithstanding the Services provided by the Company, it is at all times its sole obligation and responsibility to satisfy itself of any counterparty risk and decide whether to enter into a Contract with the proposed counterparty and on what terms.
4.1.5. The obligations and responsibilities set out in this clause and those arising from clause 12 are the sole obligations and responsibilities of the Company towards the Client and any other conditions, terms or warranties of any kind and whether implied by law or under any statute are excluded (to the extent permissible in law or under any applicable statute).
4.1.6. If the Company is acting directly for a Principal then the Company warrants that the Company has the authority of that Principal.
4.1.7. If at any time the Company provides information in respect of a Principal, including but not limited in any way whatsoever to information regarding corporate structures or financial standing, it is understood and agreed that in relation to the Company such information is provided in good faith but without guarantee. The Principal must satisfy itself of any counterparty risk and decide whether to enter a Contract with the proposed counterparty and on what terms.
4.1.8. Unless otherwise agreed in writing the Services are not provided on an exclusive basis and it is understood that the Company may act as a shipbroker for other parties in relation to the same or other Contracts. In the event the Company is dealing directly with more than one Principal in relation to the same Contract the Company’s duties will be to pass on offers, counteroffers and other such communications accurately and in a timely manner as authorised by each Principal in turn. The Client recognises that the Company may be the sole broker in a transaction and agree that the Company is under no obligation to specifically disclose that fact.
4.1.9. The Company will take reasonable steps to implement and maintain relevant antivirus and computer system protection but will not be liable should such software fail for reasons beyond the Company’s reasonable control.
4.2. Third Party Services
4.2.1. Where the Company at the Client’s request contracts with a third party for thirdparty services, it will do so solely as agent for the Client and the following provisions will apply in place of any other provision in these Terms.
4.2.2. The Company’s undertakings and obligations in Clause 4.1. and subclauses will not apply to any Third Party Services provided by the third party under that contract.
4.2.3. The Client acknowledges and agrees:
a. that the Third Party Services are provided without any obligation of any kind upon the Company in relation to them or to any aspect whatsoever of the performance or non-performance by the third party of such Third Party Services or the negligence or any other fault on the part of the third party and,
b. that the entire risk as to the provision, quality, timeliness, performance and non-performance of the Third Party Services will be borne solely by the Client.
4.2.4. Without prejudice to the preceding provisions in this Clause 4.2, the Company expressly disclaims all warranties, conditions and other terms with respect to the Third Party Services whether express, implied, statutory or otherwise, including without limitation, accuracy or reliability of results from use of the Third Party Services, that the Third Party Services will meet specific requirements, be uninterrupted, completely secure or free of errors, including, without limitation, software errors.
5. CLIENT OBLIGATIONS
5.1. The Client will:
a. Comply with these Terms in so far as they are applicable to it;
b. Observe good faith at all times in its dealings with the Company;
c. Comply with any applicable law or laws governing the Services or their subject-matter.
5.2. The Client undertakes and represents to the Company that neither the Services requested nor the Contract are unlawful and are not of a nature as could render the provision of the Services in breach of any relevant applicable law, including but not limited to:
a. sanctions imposed by any national government having authority or jurisdiction over the Company, the Client, a Representative or a Principal;
b. any laws relating to money laundering, bribery and corruption.
5.3. The Client will pay the Remuneration due to the Company in a timely fashion and in accordance with clause 6 below.
5.4. If the Client is a Principal the Client warrants that the Client have full legal power to enter into the Contract brought about by the Services. If the Client is acting as a Representative the Client warrants that the Client have the Principal’s authority (i) to accept these terms and conditions on their behalf and (ii) to make all offers, counteroffers and representations made during negotiations and (iii) to agree a Contract on their behalf.
5.5. Where Services are provided to the Client, the Client is deemed to have engaged the Company in relation to any Contract that arises in connection with those Services whether or not it is concluded via the Company.
5.6. The Client will provide the Company with all information and instructions necessary for the performance of the Services and the Client will be responsible for the accuracy of such information and instructions. Where actions need to be taken by a certain time (such as reply times during Negotiations) the Client will ensure the Company has sufficient time prior to expiry of the relevant time limit to process and forward such messages as required.
5.7. In the event that, at any time after the request for Services has been made by the Client or a Contract has been concluded, the Client becomes aware that the provision of the Services or the performance of the Contract is or has become or may be in breach of any such relevant law, the Client shall inform the Company immediately.
5.8. The Client will take care to avoid misrepresentations occurring in Negotiations. The Client will carefully review all messages information and documents sent by or copied to the Client and promptly advise the Company of any errors or misrepresentations. The Company is not responsible for the consequences of a failure by the Client to review messages or correct misrepresentations which originate from his instructions or documents or other information provided by the Client.
5.9. The Client recognises and expressly acknowledges that internet fraud and other fraud including but not limited to the unlawful interception, diversion and unauthorised amendment of legitimate email messages, attachments, payment instructions, remittance details and other instructions and information is a real danger and the Client warrant that the Client will implement and maintain appropriate anti-virus and computer system protection.
5.10. The Company does not warrant the accuracy of any invoice, amended invoice, payment demand, bank account, other remittance details or any amended details that it sends or forwards to the Client in the context of the Services, Post Contract Services or otherwise and it is the Client’s obligation to carry out appropriate checks and conduct all necessary due diligence to verify that such invoice, amended invoice, payment demand, bank account or other remittance details are accurate and contain the correct payment information. The Company will have no liability for any failure by the Client to take the due diligence and verification steps required by this sub clause 5.10.
5.11. Client’s Obligation to Indemnify the Company against Claims, Liabilities etc.
5.11.1. The Client will indemnify the Company and hold the Company harmless against the consequences of any breach by the Client of any of his obligations as set out in these Terms and Conditions.
5.11.2. Notwithstanding anything contained elsewhere in these Terms, the Client accepts and agrees to the above provisions obliging the Client to bear responsibility for and to indemnify the Company any claims or circumstance which might involve litigation or arbitration concerning the subject matter of the Contract, the Client shall immediately inform the Company.
5.12. Sanctions, Money Laundering, Bribery, and Anti-Corruption
5.12.1. In addition to the Client’s obligations as set out in clause 5 of these Terms and Conditions, the Client warrants that at the date of the Contract and throughout its duration:
a. the Client (which for this purpose of this clause 5 includes any affiliated company, owning company, group company, associated entity, or subsidiary) and any party to the Contract are not subject to or in breach of any Sanctions; and
b. the Client do not know of any reason why the Contract could be unlawful or which could render the provision of the Services by the Company in breach of any law, including but not limited in any way whatsoever to Sanctions and/or any legal provision relating to money laundering, bribery and/or corruption.
5.12.2. In the event that the Client becomes aware of any circumstance or occurrence which renders the Client and/or any other party and/or the Contract in breach of this clause 5.12 the Client will forthwith advise the Company and take all available steps to rectify the breach.
5.12.3. In the event that the Company has any reasonable grounds to believe that the Contract or the provision of the Services may be in breach of this clause 5.12 the Company may by written notice terminate the Services immediately without incurring any liability howsoever arising from such termination.
6. THE COMPANY’S REMUNERATION, PAYMENT, AND INTEREST
6.1. If the Remuneration payable to the Company is recorded in a commission clause in a Contract or in a specific commission agreement then it will be payable in accordance with that clause or agreement. The Company will be deemed to have acted in reliance on that clause or agreement and assented to its terms.
6.2. If the Client is the party responsible for paying the Remuneration the Client undertakes to make the payment or payments within the time specified in Clause 6.10.1. If the Client is not the party responsible for paying the Remuneration the Client will before instructing the Company identify which party is responsible for paying the Remuneration and the Client will provide any and all assistance required and requested by the Company to ensure the party responsible for paying does so. If the Client does not identify the paying party and/or does not provide such assistance the Client will be liable jointly and severally with that party to pay the full amount of the Remuneration.
6.3. Nothing in these terms will prevent the Company from enforcing a commission clause or other clause conferring a benefit on them as a third party in accordance with the terms of the Contract.
6.4. In the absence of any specific provisions in the Contract(s) Remuneration is payable:
a. on voyage charters: all money earned. Freight shall include all items that comprise the freight rate.
b. on time charters: on the hire and all money earned and paid under the time charter, on ballast bonuses and on the hire earned and paid under any continuation or extension of it.
c. on sale agreements: on delivery of the Ship and payment of the purchase price.
d. on new building contracts: as and when each stage payment is made.
6.5. The Client will not withhold payment of Remuneration pending resolution of unconnected matters.
6.6. Remuneration is exclusive of all taxes and duties.
6.7. If the amount of Remuneration and/or the manner of its payment is not specifically agreed the Remuneration and manner of payment will be on a quantum meruit basis and in accordance with market practice.
6.8. If Ancillary Services are provided by the Company, the Client will be liable to pay such fee as has been specifically agree, or in the absence of agreement, a reasonable fee based on the Parties’ previous course of dealing (if any), or in the absence of any relevant course of dealing, in accordance with market practice.
6.9. The Client will be liable to pay the fees as for the use of Third Party Services has been agreed with the Third Party.
6.10. Payment of Fees
6.10.1. Unless otherwise stated in the invoice, the Client shall pay each invoice submitted by the Company within seven (7) days of each invoice date (“Due Date”) without set-off (statutory or otherwise), deduction, counterclaim, abatement or discount and notwithstanding the existence of any claim or dispute including but not limited to any disputes in respect of off-hire, demurrage and breach of contract claims between the Client and any other party or under the Contract or otherwise.
6.10.2. If the Client is overdue with the remuneration payment, the Company shall be entitled to suspend any service after prior written notification until the Client fulfils its payment obligations. The Client shall bear any costs resulting therefrom.
In the event of default of payment, the client shall pay interest on the outstanding amount at a monthly rate of 1% from the due date.
6.10.3. Any failure to make payment in strict accordance with the terms of this Clause will entitle the Company to treat the Client as in breach of a condition of the Agreement and to terminate the Agreement and claim damages for loss of benefit of the Agreement.
6.10.4. Unless otherwise stated in the invoice, the Client shall pay any invoice submitted by the Third Party in accordance with the Third-Party payment terms directly to the Third Party.
7. LIMITATION OF LIABILITY
7.1. Nothing in these terms and conditions limits the Company’s liability arising from the company’s gross negligence or fraud.
7.2. The Company will, subject to the provisions of this clause 7, be liable to the Client for damage directly caused by the failure to perform the Services with the reasonable skill and care expected of a professional shipbroker, provided always that the Company will not be liable
a. Loss of profits (whether direct or indirect loss), business interruption, loss of reputation, indirect or consequential losses.
b. Damage caused by any event or cause that the Company was unable to avoid and/or the consequences of which could not have been prevented by the exercise of reasonable diligence.
c. Damage which was not solely caused by the act or omission of the Company or which would have occurred in any event.
d. Any legal or other costs incurred in connection with any ancillary action the Client takes against any third party as a result of the Company’s breach and/or alleged breach of these Terms and Conditions.
7.3. The Company’s total liability including costs and interests arising from or in connection with the Services shall in no circumstances exceed an amount equivalent to:
7.3.1. the amount of fees in fact paid to the Company by the Client in respect of the particular Services (or, as relevant, the particular Contract) in connection with which the claim arises, or
7.3.2. the total sum of USD 1,000,000 (one million United States dollars), whichever is the lower.
7.4. The exclusions and/or limitations set out in this clause shall apply whether the claim against the Company is brought in contract, tort (including for negligence) for breach of statutory duty or for any other cause whatsoever.
7.5. Any claim against the Company must be made in writing and notified to the Company within fourteen (14) days of the date on which the Client became aware or ought to have become aware of the circumstances giving rise to the claim and any claim not so notified shall be deemed waived and time barred. The Company shall in any event be discharged of all liability arising out of the Services unless suit is brought and written notice of it given to the Company within one (1) year of the end of performance of the Contract or in the absence of a concluded Contract one (1) year from the end of the Negotiations.
7.6. The Client will save, indemnify, defend and hold harmless the Company and any and all companies within it from and against claims, loss, damage, costs (including legal costs), expenses and liabilities, (including without limitation liability to third parties) of any kind whatsoever and by whomsoever made in excess of the maximum liability provided for under Clause 7.3.
7.7. The exclusions from and limitation of liability set out and above together with the indemnity and hold harmless obligation set out above shall apply irrespective of cause and notwithstanding the breach of contract, negligence, breach of duty or other failure of any kind of the Company or of the Company’s (or other such company’s) employees, agents or sub-contractors and shall apply whether the claim or liability is one in tort (including negligence), for breach of contract or under or in respect of any other cause of action in law or in equity.
7.8. The Client undertakes, warrants and represents to the Company that it has specifically considered the limits and exclusions of liability and the indemnity set out in this Clause and that it considers them to be fair and reasonable and a commercial allocation of risk in relation to the consequences of having regard to the nature of the Services, the Fees paid for such Services by the Client and all other circumstances relating to the Services known to the Client and the Company at the time of entering into the Agreement.
7.9. Neither Party shall be liable for any failure to perform or delay in performance of its obligations hereunder if and in so far as and for so long as such performance is delayed or prevented by the other’s acts or omissions, ninety (90) days, either party may terminate the Agreement immediately by giving written notice to the other party.
Should the Principals cancel the Contract under which Remuneration has or would have been earned the Client will be liable at the date of the cancellation to pay the Company the Remuneration which would, but for the cancellation, have been payable for the remaining period of the Contract or for the 12 months following the cancellation, whichever is shorter.
9. TERMINATION OF THE AGREEMENT
Without prejudice to its other rights of termination in law and to claim damages, the Company shall be entitled to terminate the Agreements which were concluded on or before the date of termination and/or which arise after the date of termination of the Services following performance of the Services prior to the date of termination of the Services.
10. FORCE MAJEURE
Neither Party shall be liable for any failure to perform its obligations under this contract due to circumstances beyond its reasonable control, including but not limited to acts of God or the public enemy, natural disasters, act of war or rebellion or sabotage or damage resulting therefrom, riots or strikes or other concerted acts of workmen, compliance with any order or request of any governmental authority, unavoidable fires, floods, explosions, or accidents, or other unforeseeable circumstances. If the circumstances constituting Force Majeure continue for an uninterrupted period of ninety (90) days, either party may terminate the Agreement immediately by giving written notice to the other party.
11.1. Where the Company is given information stated by the Client to be on a confidential basis or it is expressly agreed that a Contract is confidential (in either case “Confidential Information”) the Company will not disclose that Confidential Information to any other party without prior permission from the Client. This obligation will not however extend to Confidential Information which (i) was already or becomes known to the Company through other sources not subject to such an obligation of confidentiality (ii) is or becomes known to the market generally other than as a result of a breach of this obligation or (iii) which the Company is obliged to disclose pursuant to a legal requirement including but not limited in any way whatsoever to an order of a court or other such authority. In all cases such obligation of confidentiality shall be deemed to end 3 years after the end of performance of the Contract in question or in the absence of a concluded Contract 3 years from the end of the Negotiations.
11.2. In all cases the obligation of confidentiality shall be deemed to end one (1) year after the end of performance of the Contract in question or in the absence of a concluded Contract one year from the end of the Negotiations.
11.3. If the Parties have entered into a non-disclosure agreement (“NDA”) regarding the disclosure of Confidential Information, the terms and conditions of the NDA shall apply regarding such disclosure to the exclusion of this Clause.
12. DATA PROTECTION
In accordance with EU Regulation No. 679/2016 (GDPR), the Company as the data controller, hereby informs that the personal data that it has collected to the other party will be processed in compliance with the aforementioned regulation. Specifically, the Company, in accordance with Article 13 of EU Regulation No. 679/2016, informs that the personal data provided by the data subject will be processed by electronic and non-electronic means. This processing aims to fulfill contractual obligations and carry out related legal and contractual compliance, as well as to ensure effective operational management of these relationships. The relevant personal data may also be disclosed, to enable compliance with contractual or legal obligations, to all individuals and/or legal entities (public and/or private) involved in the execution of the data processing activities necessary to ensure the correct provision of services related to this contract. Consent is not required for these purposes (Article 6(1)(b) of the GDPR). Personal data processed for the purposes mentioned above will be retained solely for the duration of the contract-related activities and, in any case, no longer than necessary to ensure the potential defence of the Company’s rights in legal proceedings. The data subject, by written request, may exercise all the rights granted under Articles 15 and subsequent articles of EU Regulation No. 679/2016, including the rights of access, rectification, portability, updating, opposition, and limitation of processing, and deletion.
Any notice to be given hereunder or otherwise in relation to the Services shall be in writing and shall be deemed to have been duly given if sent or delivered to the Party concerned at such address as the Party may from time to time notify in writing or to the correct facsimile number or electronic mail address (as notified by the receiving Party) and shall be deemed to have been served, if sent by first class post, 48 hours after posting and in the case of a facsimile transmission on the following day or in case of electronic mail on the same date.
14. LAW AND JURISDICTION
14.1. These terms shall be governed by and construed in accordance with the laws of Italy.
14.2. The parties shall submit all disputes arising out of or in connection with this agreement, including but not limited to those relating to its interpretation, validity, effectiveness, execution, and termination, to the mediation service of the Chamber of Arbitration of Venice, a body authorized to handle mediation procedures in accordance with the provisions of the Rules of Mediation of the Chamber of Arbitration of Venice, which the parties expressly declare to know and fully accept.
14.3. The parties agree to attempt mediation before commencing any judicial proceedings.
14.4. Should it prove impossible to reach an agreement, all disputes shall be referred to the Court of Venice.
15.1. All intellectual property rights in or arising out of the Services belong to the Company.
15.2. The Company has a general lien on all documents in its possession or control for all sums due from the Client to the Company whether arising out of the Contract or otherwise.
15.3. If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms and Conditions.
15.4. A waiver of any right or remedy under these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
15.5. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
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