Kraatz Marine - Marine Engineering Services

1.) DEFINITIONS AND INTERPRETATIONS

1.) In these General Terms and Conditions and in all documents comprising the contract referred to in 1.1.2, the following expressions shall have the meanings set out hereunder, unless the context clearly requires a different meaning:

"Acceptance of Order" means a written or oral acceptance of the Customer's Order by the Contractor and, if written, signed by the Contractor;
"the Contract" means these General Terms and Conditions of Contract, the Contractor's Tender or Quotation (if any), the Order and the Acceptance of Order, the Instruction to Proceed with Works, together with such other terms and conditions as may be specifically agreed by the parties;
"the Contractor" means Kraatz Marine, Walvis Bay, Namibia;
"the Customer" means the party whose Order is accepted by the Contractor in terms of its Acceptance of Order and/or who instructs the Contractor to proceed with the Works;
“the Equipment” means any equipment or machinery and related systems in respect of which Works are to be undertaken in terms of the Contract;
“the Owner” means the actual owner of the Vessel or Equipment in respect of which Works are to be undertaken in terms of the Contract
"the Order" means a written or oral request by the Customer or its representative addressed to the Contractor, requesting the Contractor to perform the Works described in such request;
"the Premises" means the Contractor's premises at 5th Street Industrial Area, Walvis Bay, or such other premises designated by the Contractor from time to time;
"the Tender or Quotation" means a written or oral statement by the Contractor, setting out the Works and all information and data relating thereto, and the price to be paid by the Customer in return for the Works, and if written:
includes all schedules thereto;
signed by the Contractor;
"the Vessel" means any vessel in respect of which Works are to be undertaken in terms of the Contract.
"the Works" means the materials, products to be supplied or manufactured and/or services to be undertaken in terms of the Customer's Order.
Headings of clauses are inserted for the purpose of convenience only and shall be ignored in the interpretation of this agreement.
Unless inconsistent with the context, words signifying any one gender shall include the others, words signifying the singular shall include the plural and vice versa and words signifying natural persons shall include artificial persons and vice versa.

2.) THE CONTRACT

2.1 If the contract is a written one then:

the Contract contains all the express provisions agreed on by the parties with regard to the subject matter of the Contract and the parties waive the right to rely on any alleged express provision not contained in the Contract;
no party may rely on any representation which allegedly induced the party to enter into the Contract, unless the representation is recorded in the Contract;
no agreement varying, adding to, deleting from or canceling the Contract or any part thereof and no waiver of any right under the Contract shall be effective unless reduced to writing and signed by or on behalf of the parties;
no relaxation by a party of any of its rights in terms of the Contract at any time shall prejudice it or be a waiver of its rights (unless it is a written waiver) and it shall be entitled to exercise its rights thereafter as if such relaxation had not taken place.
in particular, but without limiting the generality of the a foregoing, no terms and conditions attached to or submitted with or in the Order in any manner, other than those preprinted on the Contractor's standard form used for that purpose shall form part of the Contract, regardless of any reference thereto in the Order.

2.2 If the Contract is an oral one or is partly oral and partly written, then:

these General Terms and Conditions of Contract shall be deemed to form part of the Contract and shall take priority over any other alleged express provision not contained in these General Terms and Conditions of Contract, in the event that there is any conflict, contradiction, ambiguity or discrepancy between these General Terms and Conditions of Contract and such other alleged express provisions;
the provisions of 2.1.3 and 2.1.4 shall apply mutatis mutandis;
for avoidance of doubt these General Terms and Conditions of Contract shall apply where the Customer signs same in respect of the Works and/or accepts the Contractor’s quotation and or issues the Contractor with instructions to proceed with the Works.

2.If there is any conflict, contradiction, ambiguity or discrepancy between these General Term and Conditions of Contract, the Tender or Quotation, the Order or the Acceptance of Order, the priority of the various parts, regardless of whether the contract is an oral or a written one, shall be as follows:

these General Terms and Conditions of Contract;
the Tender or Quotation;
the Acceptance of Order;
the Order and/or Instructions to Proceed.

2.4 Unless otherwise agreed, any variation, deletion or cancellation of these General Terms and Conditions or any relaxation or waiver of a party's rights agreed to in respect of a particular agreement shall not apply to any future agreement between the Customer and the Contractor.

3.) COMMENCEMENT OF CONTRACT

The Order, whether written or oral, shall constitute an offer capable of acceptance by the Contractor.
The Contract, which shall be a binding agreement between the Contractor and the Customer, shall come into existence on the occurrence of the earlier of the following:
the issuing of an Acceptance of Order, whether written or oral, by the Contractor; or
the issuing by the Customer of an Instruction to Proceed; or
the commencement by the Contractor of the Works requested by the Customer in terms of its Order.
The Customer waives the requirement that the Acceptance of Order be communicated to it and the Contract shall come into existence immediately upon the issuing of the Acceptance of Order or the commencement of work in terms of 3.2.1, 3.2.2 or 3.2.3, as the case may be.
Unless otherwise agreed, the Works shall be executed at the Premises, and the Customer shall, at its cost, deliver the Vessel and/or the Equipment, if applicable, and all the Customer's property, in respect of which the Works are undertaken, to the Premises.

4.) SCOPE OF THE CONTRACT

The Contractor shall execute the Works in accordance with good ship repair practice and in accordance with any designs, instructions, itemized details, plans, drawings, programs and other specifications ("the specifications") submitted to the Contractor by the Customer prior to the Tender or Quotation and contained in the Tender or Quotation, or otherwise agreed upon between Customer (or its representative) & the Contractor, provided that the Contractor shall not be responsible for the technical adequacy of any such specifications, or for the underlying condition of the Vessel and/or the Equipment or any supporting structures involved in the Works, nor is it obligated in any way to satisfy itself or advise the Customer regarding the technical adequacy of such specifications, or of the underlying condition of the Vessel and/or the Equipment or any supporting structures involved in the Works

5.) LIABILITY

The Contractor will not be liable for any defect in the Works until the contractor has been given a reasonable opportunity to investigate and assess such defect.
If the Works are in any respect not in accordance with the contract, the Contractor shall, subject to 5.4, 8.1.2, and 9, if requested to do so in writing by the Customer within a reasonable time after discovery of such failure ("the defects"), but in any event within not more than 60 days from the date of delivery, at its option either:
repair or replace the defective portions or components of the Works at the Premises; or
credit the Customer with the amount charged by the Contractor to the Customer for the defective portions or components of the Works.
The Customer's written request in terms of 5.2 shall contain full and complete details of the alleged defects in the Works, failing which the Contractor shall have no liability in respect of any defects in the Works, whether latent or patent.
Notwithstanding 5.2, the Contractor shall not be liable to repair or replace or pass a credit for any defective Works and/or defective portion or components thereof if such Works or any portion or component thereof is used other than for its intended purpose or if such defect arises through fair wear and tear, acts of God, accidental damage caused by the Customer or any other third party, the negligent or intentional act of the Customer or any third party or damage arising out of attempted repairs to such Works or any portion or component thereof by the Customer or any third party.
The remedy set out in 5.2 is the only remedy available to the Customer and is in substitution of and not in addition to any remedy available to the Customer in common law, in terms of any statute or otherwise.

6.) DELAY

6.1 Subject to 16 and 17, the Contractor shall complete and deliver the Works in accordance with the program set out by the Contractor in its Tender or Quotation, or as otherwise agreed upon in accordance with these General Terms and Conditions of Contract ("the program"), provided that, if no such program is set out in the Tender or Quotation or agreed upon between the parties, the Contractor shall complete the Works within a reasonable time.

6.2 If the Works are not completed and delivered in accordance with 6.1, the Contractor shall be liable for and pay to the Customer only such penalties for late completion and delivery as set out in the Contractor's Tender or Quotation, or as may have been otherwise agreed between the parties in writing in accordance with these General Terms and Conditions of Contract. Unless otherwise expressly agreed to by the parties in writing, any penalties payable in terms of this clause shall never exceed two percent of the value of the Works.

6.3 The penalties for late completion and delivery referred to in 6.2 shall be the only remedy available to the Customer for late completion and delivery and shall be in substitution of and not in addition to any remedy available to the Customer at common law, whether in terms of any statute or otherwise. Accordingly, the Customer shall have no further claim whatsoever against the Contractor for any loss or damage (including any loss as described in 8.1.1) arising out of such delay, either in contract or delict or from any cause whatsoever, regardless of negligence in any degree on the part of the Contractor or those for whom it is vicariously liable.

7.) RISK AND LIABILITY FOR LOSS, ACCIDENT OR DAMAGE

The Vessel and/or the Equipment and all property in respect of which the Works are undertaken, including without limitation, all equipment, machinery, stores and material and regardless of where such Vessel or property is situate ("the Customer's property"), shall throughout the duration of the Contract remain at the sole risk of the Customer.
Unless otherwise agreed in accordance with these General Terms and Conditions of Contract, the Contractor shall not insure the Vessel and/or the Equipment or any of the Customer's property.
Risk in and to the Works itself shall remain with the Contractor where found negligent until delivery of the Works and shall pass from the Contractor to the Customer on delivery of the Works.
The Contractor shall, for the period of the Contract prior to delivery, take out and maintain in respect of the Works insurance against such loss, accidents or damage as may occur to the Works or to persons or property during the execution of the Works as may be covered in terms of the Contractor’s:
Compensation for Occupational Injuries and Diseases (COID) cover;
ship repairer's liability insurance cover;
public liability insurance cover;
common law liability insurance cover.
The Contractor's liability to the Customer in respect of such loss, accidents or damage as may occur to the Works or to persons or property during the execution of the Works is limited to and shall not extend beyond loss, accidents or damage arising out of the risks covered by the insurance referred to in 7.4. Accordingly, provided the Contractor has complied with its obligations in terms of 7.4, the Contractor shall not be liable to the Customer for any uninsured loss, damages or claim sustained or made in respect of the Works or persons or property, or for any amount in excess of that paid out by the relevant insurer, howsoever such loss, damage or claim arises and regardless of negligence, in any degree, on the part of the Contractor or those for whom it is vicariously responsible.

8.) LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, and in any event:
the Contractor, its employees, agents or assigns shall not be liable to either the Customer or the Owner for any indirect, consequential, incidental or contingent loss or damages, including, but not limited to loss of profits, loss of use, loss of production, loss of contracts, loss of customers or loss of goodwill, or for any punitive damages of any nature arising out of a breach of the Contract or any cause whatsoever;
the Contractor shall not be liable to the Customer in respect of any number of claims for any amount in excess of an aggregate of one million US$, which amount the Customer accepts as the limit of the Contractor's liability to the Customer arising out of contract or delict or any cause whatsoever and regardless of negligence in any degree on the part of the Contractor or those for whom it is vicariously liable.

9.) WARRANTIES

The Contractor:
save as expressly provided for in the Contract, gives no warranties, express or implied in respect of workmanship, materials, and fitness for purpose or merchantability;
in respect of "bought-out" or proprietary items not of its own manufacture gives no greater warranty and accepts no greater liability than that given or accepted by and enforceable against the supplier or the manufacturer of the "bought-out" or proprietary items and in respect of any such warranty the Contractor shall discharge its obligation to the Customer by ceding to the Customer the Contractor's rights against such supplier or manufacturer, such cession being subject to the consent of the supplier or manufacturer where such consent is required.
under no circumstances gives any warranty in respect of the Works or any portion or component thereof which is used other than for the intended purpose;
under no circumstances gives any warranty against defects in the Works arising through fair wear and tear, neglect or intentional or accidental damage.

10.) DELIVERY

Delivery of the Works to the Customer shall be deemed to have occurred upon completion of the Works in accordance with the terms of the Contract, or if no completion procedure is stipulated, then delivery shall be deemed to have occurred when the Contractor submits to the Customer a Worksheet setting out details of the Works and advising the Customer that the Works are complete.
Unless and save to the extent as may otherwise be stipulated in the Contract, the Contract is an ex-Works transaction in accordance with Incoterms 2000.
If, after the date upon which the Works are deemed to have been delivered, the Works, the Vessel or any other of the Customer's property referred to in 7.1 remains in the possession of the Contractor, the Contractor shall not, following the time of deemed delivery, be liable for any loss thereof or damage thereto from whatsoever cause arising, including, but not limited to, the negligence in any degree of the Contractor or those for whom it is vicariously liable.

11.) CONTRACT PRICE

Subject to the further provisions of this clause 11 the contract price to be paid to the Contractor for the Works shall be the price set out in the Tender or Quotation, or such other price as may be agreed upon by the Contractor and the Customer in accordance with these General terms and Conditions of Contract, or if no price is set out or agreed upon, the fair market price, as agreed or, failing agreement, as determined in accordance with 11.4, 11.5 and 11.6.
It is recorded that the contract price is based on the direct input costs to the Contractor of executing the Works, ruling at the date of the Contractor's Tender or Quotation, or the date on which the contract price is agreed in terms of 11.1, including but not limited to, the costs of materials, transport, labour, exchange rates, import duties, and surcharges ("the input costs").
If any variation in the input costs occurs between the date of the Tender or Quotation, or the date upon which the contract price is agreed, as the case may be, and the date of delivery, the Contractor shall be entitled to vary the contract price on written notice to the Customer, provided that such variation shall be determined in accordance with the formula set out in the Tender or Quotation, or if no formula is set out in the tender or quotation, the prevailing relevant formulae, principals and indices, published by SEIFSA.
If the Customer disputes the fair market price in terms of 11.1 or the variation in the contract price in terms of 11.3, it shall notify the Contractor thereof in writing and shall refer the dispute to the Contractor's auditor for determination. In making the determination the auditor shall:
act as an expert and not as an arbitrator;
are entitled to consult with or obtain assistance from any source;
in the case of a dispute concerning a variation in terms of 11.3, decide the dispute on the basis that the price determined must be such that the net profit percentage earned by the Contractor after the input cost increase is the same as that immediately before the input cost increase;
issue a written decision as soon as is reasonably possible, such a decision to include a determination as to which party shall be liable to bear its costs and charges.
The auditor's determination of the issue referred to it in terms of 11.4 shall be final and binding.
Neither party shall be entitled to be represented before the auditor other than by a duly authorized officer or employee of that party.
The contract price does not include the cost of any patterns, gauges, tools and dies which it is necessary for the Contractor to acquire or manufacture in order to execute the Works. The Customer shall, in addition to the contract price, pay to the Contractor the amount stipulated in the Tender or Quotation or otherwise agreed upon in accordance with these General Terms and Conditions of Contract or, in the absence of such stipulated or agreed amount, the cost to the Contractor of acquiring or manufacturing the items, or the Contractor's usual price in respect of such items.
Notwithstanding 11.7 ownership of any patterns, gauges, tools or dyes referred to in 11.7 shall at all times remain with the Contractor.
The contract price and any amount payable by the Customer in terms of 11.7 excludes Value Added Tax which shall be paid by the Customer to the Contractor at the applicable rate in accordance with the Value Added Tax Act No. 89 of 1991 as amended.

12.) PAYMENT, INTEREST AND SECURITY

Any amount payable by the Customer to the Contractor shall be paid against delivery by the Contractor to the Customer or its duly appointed agent of the Vessel and/or the Equipment on completion of the Works together with the Contractor's invoice, (except where the Customer and the Contractor have agreed upon progress payments, in which event any progress payment is to be made on the date or time agreed).
All such payments as aforesaid are to be in cash, without demand and free of exchange, deduction or set-off and at such place or places in the Republic of Namibia as the Contractor may reasonably stipulate.
Pending receipt of such payments as aforesaid, the Contractor shall not be required to relinquish possession of the Vessel and/or Equipment.
Any amount not paid on due date shall bear interest from the due date until it is paid, at a rate of 5 percentage points above the published prime overdraft rate from time to time of the Contractor's principal bankers or, if a lower maximum rate is prescribed by law in respect of that amount, then at that lower rate. A letter purporting to be signed by a general, branch or other manager of the Contractor's principal bankers setting out the published prime overdraft rate from time to time shall be proof of the rate until the contrary is proved.
As security for the due payment of all amounts due by it to the Contractor in terms of the contract, the Customer hereby cedes in securitatem debiti to the Contractor all of its rights, title and interest in and to any amount due and payable to the Customer in respect of the Works by any third party, whether at present or in the future. The Customer undertakes to advise the third party of the fact of the cession and to sign all and any documentation, which is required to give effect to the implementation of the cession.
Where payment is effected by post, the risk of loss arising from the use of the post shall rest with the Customer.

13.) OWNERSHIP

Notwithstanding delivery of the Works to the Customer or its duly appointed agent, it is the intention of the parties that the Works shall not accede to any other property, whether movable or immovable and that so far as any such other property is concerned the Works shall for the purposes of accession be deemed to be the principal items. Ownership of the Works and any items accessory thereto shall at all times remain vested in the Contractor and shall not pass to the Customer or Owner until all amounts owing by the Customer to the Contractor in terms of the Contract have been paid.
The Customer irrevocably authorizes the Contractor, or its duly authorized agents, in the event that the Customer fails to pay any amount owing to the Contractor in terms of the Contract, to repossess the Works where-so ever they may be found and further, at its option, to detach or unmix the Works from anything to which they are attached or annexed or in which they are installed and for this purpose to enter upon any land, building, vehicle or vessel or any other place upon which the Works are reasonably thought to be situated and indemnifies and holds harmless the Contractor or its duly authorized agents for any loss or damage that may be caused thereby, including any loss or damage as may be incurred by the Owner of any Vessel or Equipment incurred as a consequence of the Contractor’s detachment and/or unmixing of the works in terms of this clause.
The remedy in 13.2 is in addition to and without prejudice to any other remedies, which the Contractor may have in law or in terms of the Contract.

14.) INDEMNITY

The Customer indemnifies and holds the Contractor harmless against and for any claim brought by any party in respect of loss or damage suffered as a result of any error, defect or technical inadequacy of any nature whatsoever of the specifications, the underlying condition of the Vessel or any supporting structures involved in the Works.

15.) ACCESS

If the Works or any part thereof is executed on the Vessel or at the premises of the Contractor ("the premises"), no other party, including, but not limited to, the Customer, its employees and customer appointed agents, contractors and their sub-contractors may, without the prior consent of the Contractor, be present or carry out any work on the Vessel or at the premises whilst such Works or any part thereof are being executed.
The Customer indemnifies the Contractor, its directors, employees, agents and sub-contractors and holds it/them harmless against and for all costs and claims in respect of loss or damage arising out of any cause whatsoever suffered by any party, including, but not limited to the Customer, its employees, agents, contractors, sub-contractors, or any invitee of such parties who are present on the Vessel or at the premises whilst any of the Works or any part thereof are being executed on the Vessel or at the premises, or at any other time during the period of the Contract, regardless of whether the Contractor has given its consent in terms of 15.1 and regardless of negligence in any degree on the part of the Contractor or those for whom its is vicariously liable.

16.) VARIATIONS

In the event that:
the Customer requires any variation to the Works as set out in the Contract; or
the Contractor is hindered delayed or prevented from performing in terms of the Contract and will incur or will be exposed to extra costs and/or stand-by time owing to:
additions to or omissions from the Contract;
deviations from the specifications required by the Customer;
late, defective or non-receipt of information from the Customer, its representatives, agents or assigns;
4late, defective or non-receipt of free issue materials from the Customer;
5delays caused by other Customer-appointed agents, contractors and their sub-contractors;
6delays caused by ship movements;
7delays caused by any act or omission or direction of/by the National Ports Authority;
8differences between the scope of Works as set out in the contract and the scope of the Works actually undertaken;
9any other reason not foreseen at the time of conclusion of the contract;
10any act, default or omission by or on behalf of the Customer, its employees, contractors, agents and assigns then the Contractor shall, subject to 16.2, effect an appropriate amendment to the contract, including, but not limited to, amendments to the contract price, the Works and the program, or to any other obligation of the Contractor and such amendment shall, not withstanding anything to the contrary, be deemed to be an amendment in accordance with these General Terms and Conditions of Contract.
If the appropriate amendment to the contract required in terms of 16.1 is such that, together with any other variations as may have been requested or required, such variation results in a deviation from the original contract price by an amount which exceeds 10% of the original contract price, or a deviation from any of the quantities of the Works which exceeds 10% of the original quantity of the Works, then the Contractor shall in its sole discretion, be entitled to either:
refrain from making any amendment to the contract in terms of 16.1 and perform its obligations and enforce its rights in terms of the contract without such amendment; or
make the necessary amendments in terms of 16.1 and perform its obligations and enforce its right in accordance with the contract so amended; or
to cancel the contract and to claim such damages as it may have suffered as a result of such cancellation.

17.) FORCE MAJEURE

Subject to the following provisions of this clause, neither party shall be responsible to the other for its failure to perform, the defective performance or any delay in performing any obligation under this agreement in the event and to the extent that such failure or delay is caused by force majeure.
For the purpose of this agreement 'force majeure' shall mean any circumstance which is beyond the reasonable control of the party giving notice of force majeure ("the affected party"), including but not limited to war (whether declared or not), revolution invasion, insurrection, riot, civil commotion, mob violence, sabotage, blockade, embargo, boycott, the exercise of military or usurped power, fire, explosion, theft, storm, flood, rain, drought, wind, lightning or any or other adverse weather condition, epidemic, quarantine, accident, breakdown of machinery or facilities, strike, lockout or labour dispute, acts or restraints of government imposition, or restrictions of or embargoes on imports or exports, or late deliveries.
Notwithstanding the provisions of 17.2, inability to meet a payment because of a lack of funds shall in no circumstance be treated as an event of force majeure.
The affected party shall give notice thereof to the other upon the occurrence of an event of force majeure and again on the cessation thereof, failing which the affected party shall not be entitled claim.
If the event of force majeure is of such a nature that it will result in impossibility of performance of an obligation going to the root of the Contract, the party not so affected ("the other party") shall be entitled, on receipt of notice of the force majeure event, to terminate this agreement upon notice to the affected party but shall not be entitled to recover any damages which it may suffer as a result of such premature termination.
If the event of force majeure is of such a nature that it will not result in impossibility of performance of the obligation in question but will delay the performance thereof, the affected party shall be entitled to such extension of time in which to perform that obligation as may be reasonable in the circumstances, taking into account the interests of both parties: Provided that if such force majeure situation persists for a period in excess of 30 days the other party shall be entitled to terminate this agreement but shall not be entitled to recover any damages which it may suffer as a result of such premature termination.

18.) PATENTS COPYRIGHT AND CONFIDENTIALITY

The Customer indemnifies and holds the Contractor harmless against all claims and expenses of whatsoever nature and description arising from alleged or actual infringement of any patent, design, trademark, copyright or other intellectual property rights arising out of the Contractor's performance of the Contract in accordance with the specifications.
The Contractor warrants that any designs, plans, drawings or itemized details other than the specifications provided by the Customer, which the Contractor has stipulated in the Contract or which the Contractor uses in the execution of the Works shall not infringe any patent, design, trademark, copyright or other intellectual property right.
All intellectual property of whatever nature in or arising out of or relative to original drawings, designs, plans or itemized details supplied by the Contractor in connection with the Contract shall vest in the Contractor.
The Customer shall keep confidential and not use for any purpose other than the Contract itself, all designs, drawings, plans or itemized details supplied by the Contractor in terms of or in connection with the Contract and the Works.

19.)BREACH

Either party shall be entitled, without prejudice and in addition to any rights, which it may have in terms of the Contract or in law, to forthwith. cancel the Contract or to uphold the Contract and in either event to claim such damages as it may have suffered if the other party.

fails to make immediate payment on due date of any amount payable to the first party in terms of the Contract;
in any other way breaches any material provision of the Contract and fails to remedy such breach within 14 days after the receipt of a notice from the other party calling upon it to remedy the breach; or
takes steps to enter into a compromise with any of its creditors or takes steps or has steps taken against it for liquidation, winding up, deregistration or judicial management; or
prior to or during the currency of this agreement, commits or has committed an act of insolvency or an act which would be an act of insolvency as defined in the Insolvency Act No. 24 of 1936, as amended, if committed by a natural person;
fails to satisfy any judgment taken against it and fails, within 10 days of the date on which judgment is granted, to take such steps and to continue to take such steps as may be necessary to have the judgment set aside.

20.) GOVERNING LAW AND DISPUTES

The Contract shall be governed and interpreted in accordance with the laws of the Republic of Namibia.
Any dispute arising out of or in connection with the Contract shall, at the option of the Contractor, be resolved by way of an action instituted either in the High Court of Namibia or in the Magistrates Court having jurisdiction to hear such matter, notwithstanding the fact that the dispute might otherwise have fallen outside the jurisdiction of such Magistrates Court and the Customer consents to such jurisdiction.

21.) NOTICES AND DOMICILIA

For the purpose of the Contract, including the giving of notices and the serving of legal process, the parties choose Dom cilium citandi et executandi ("Dom cilium") as follows:
the Contractor: 5th Street Industrial Area, Walvis Bay, Namibia.
the Customer: the address set out in the Order or in the event that the order is an oral one, the Customer's principal place of business or registered office, or if such principal place of business or registered office is not in the Republic of Namibia, but the Customer carries on business from premises situate in the Republic of Namibia, any place in the Republic of Namibia from which the Customer carries on business, or, if the Customer is represented by an agent in the Republic of Namibia, at any place where such agent carries on business.
A party may at any time change that party's Dom cilium by notice in writing provided that the new Dom cilium consists of or includes a physical address at which process can be served.
Any notice given in connection with this agreement shall, if delivered by hand, be deemed to have been duly given on the date of delivery and, if sent by post, be deemed to have been given 4 days after posting and, if sent by telefax, be deemed to have been given on the day that the telefax is transmitted.
Notwithstanding any to the contrary, a written notice or communication that has been actually received by a party will be regarded as sufficient notice despite the fact that it has not been dispatched to the appointed domicilium or delivered to such domicilium.

22.) COSTS

Any costs, including attorney and own client costs, incurred by the Contractor arising out the breach by the Customer of any of the provisions of the Contract shall be borne by the Customer.

23.) FUTURE CONTRACTS

These General Terms and Conditions of Contract shall apply to any future oral or written agreement for the supply of goods and/or services by the Contractor to the Customer.

24.) WARRANTY AS TO OWNERSHIPM

The Customer warrants by its signature to these terms and conditions and/or its acceptance of the Contractor’s quotation for the Works and/or its instructions to proceed with the Works that it is the Owner of the Vessel and/or the Equipment. If it is not the Owner, the Customer shall within 48 hours of signing these conditions and/or accepting the Contractor’s quotation and/or instructing the Contractor to proceed with the Works furnish the Contractor with the full particulars of the Owner of the Vessel and/or Equipment. Should the Contractor fail to provide such particulars by due time, it will be deemed to be the Owner of the Vessel and/or the Equipment.

24.) SIGNATURE OF TERMS AND CONDITIONS

The failure and/or refusal by the Customer or its representative to sign these General Terms and Conditions of Contract shall not render same inoperative or inapplicable, inasmuch as these General Terms and Conditions of Contract are automatically operative and applicable in terms of 2 above.

SIGNED AT ___________THIS ________DAY OF ____________

________________________________________________

For and on behalf of the Customer, Warranting that he/she is duly authorized to so sign.