LIABILITIES & INDEMNITIES. 37.1 Except for liquidated damages expressly provided for in this Agreement, the Contractor and the Contractor's Group shall not in any event nor under any circumstances, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability or otherwise, be liable for any loss of profit or revenues, loss of use of any equipment, cost of capital, cost of substitute equipment, facilities, services or replacement power, downtime costs, claims of the Owner's partners or customers for such damages, whether deemed to be direct or indirect and whether or not foreseeable or disclosed at the time of this Agreement, or for any special, consequential, incidental, indirect or exemplary or punitive damages suffered by the Owner , and the Owner shall release and hold harmless the Contractor's Group from such claims. 37.2 Notwithstanding any provision in this Agreement, the GIMI Topsides Agreement or the GIMI Direct Agreement to the contrary or any inconsistency in or across them, it is agreed between the Parties that the Contractor's total and entire liability under this Agreement (other than the Sub-Contract Works) and the GIMI Direct Agreement, including warranty and damages (liquidated or unliquidated), tort (including negligence and breach of statutory duty) or otherwise in relation to or in connection with this Agreement and/or the repair, modification or conversion of the Vessel and/or the Works and/or the performance by the Contractor of its obligations in the GIMI Topsides Agreement shall not exceed [*****]. This shall apply regardless of any act, default, omission or negligence, in whatever form or degree, and whether sole, partial, concurrent or contributory on the part of any person within the Contractor's Group and regardless of any other breach of duty or liability, whether strict, statutory, contractual or otherwise, by any person within Contractor's Group. 37.3 Notwithstanding any provision herein to the contrary or inconsistent herewith, it is agreed between the Parties that the Sub-Contractor's total and entire liability shall be in accordance with the requirements stated in the GIMI Topsides Agreement. 37.4 Until the Owner has fully and completely performed and discharged all its duties, liabilities and obligations under this Agreement, the Owner shall remain the sole, legal and equitable owner of the whole of the Vessel and shall not transfer legal or equitable ownership of the Vessel to any third party or create or permit any lien, charge, debt, mortgage or any other claim whatsoever over or in relation to the Vessel, other than a lien in favour of the Contractor and a mortgage in favour of the financing parties providing financing in respect of the Works and/or Sub-Contract Works. 37.5 Without prejudice to any other rights or remedy which the Contractor may have, whether under this Agreement, under common law, statute, or otherwise and whether in rem or in personam: (a) The Vessel, all her equipment (whether installed on board or not) whenever the same may come into the Contractor's possession, custody or control, the OFE and all goods, materials, Plans, Project Information, documents (including but not limited to the Vessel's certificates), choses-in-action, monies (including but not limited to any insurance proceeds), items and properties in the possession, custody or control of the Contractor (collectively the "Lien Property") shall be subject to a particular and general lien and right of detention for: (i) all monies, sums, amounts and payments due in respect of the Lien Property, including but not limited to monies, sums, amounts and payments due and/or arising under this Agreement and the GIMI Direct Agreement; and (ii) any particular or general balance or other sums, monies, amounts and payments due from the Owner to the Contractor, including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel, including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien. (b) The Contractor, by itself or its servants or agents or otherwise shall be entitled to exercise a possessory lien upon the Lien Property in respect of any monies, sums, amounts and payments howsoever and whatsoever due to the Contractor (including but not limited to those referred to under Article 37.5(a) (Liabilities & Indemnities) above) and shall for the purpose of exercising such possessory lien be entitled to take, retain and keep possession of the Lien Property at the sole risk and expense of the Owner. 37.6 The Owner shall be liable for and pay to the Contractor all costs and expenses howsoever and whatsoever incurred by or on behalf of the Contractor including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien. 37.7 Notwithstanding the Redelivery of the Vessel to the Owner or any delivery or re-delivery of any other Lien Property to the Owner, the Contractor shall be entitled to exercise its rights pursuant to Article 37.5 (Liabilities & Indemnities) as long as the Lien Property is in the Yard or in the possession of the Contractor. Further, it is agreed that any agreement on the part of the Contractor to permit or allow any Lien Property to leave the Yard for any reason whatsoever (including but not limited to sea trials of the Vessel) whether pursuant to the terms of this Agreement or otherwise shall not prejudice nor be deemed as a waiver of the Contractor's lien (possessory or otherwise) over the Lien Property or of its rights hereunder. It is further expressly agreed that the Contractor's said lien shall re-attach and apply in the event the Lien Property returns to the Yard or to the possession of the Contractor.
Appears in 1 contract
Sources: Engineering, Procurement & Construction Contract (Golar LNG LTD)
LIABILITIES & INDEMNITIES. 37.1 Except for liquidated damages expressly provided for in 24.1 BUYER shall indemnify and hold SELLER, its subcontractors harmless from and against all claims, proceedings, liabilities, losses, damages, costs and expenses whatsoever arising out of or resulting from personal injury, including fatal injury, to any BUYER’s personnel and the personnel of any affiliate of BUYER, Buyer equipments and other property of the Buyer resulting from or relating to the performance of this AgreementPurchase Order. However, the Contractor and the Contractor's Group foregoing shall not in any event nor under any circumstancesapply to the extent negligence or gross negligence or wilful misconduct of SELLER, whether as a result its sub-contractors or personnel caused or contributed to such injury.
24.2 Seller shall be responsible for, and shall indemnify and hold BUYER, affiliates of breach of contractBUYER and its personnel harmless from and against all claims, warrantyproceedings, indemnityliabilities, tort (including negligence)losses, strict liability or otherwise, be liable for any loss of profit or revenues, loss of use of any equipment, cost of capital, cost of substitute equipment, facilities, services or replacement power, downtime costs, claims of the Owner's partners or customers for such damages, whether deemed to be direct costs and expenses whatsoever arising out of or indirect and whether or not foreseeable or disclosed at the time of this Agreement, or for any special, consequential, incidental, indirect or exemplary or punitive damages suffered by the Owner , and the Owner shall release and hold harmless the Contractor's Group resulting from such claims.
37.2 Notwithstanding any provision in this Agreement, the GIMI Topsides Agreement or the GIMI Direct Agreement to the contrary or any inconsistency in or across them, it is agreed between the Parties that the Contractor's total and entire liability under this Agreement (other than the Sub-Contract Works) and the GIMI Direct Agreement, including warranty and damages (liquidated or unliquidated), tort (including negligence and breach of statutory duty) or otherwise in relation to or in connection with this Agreement and/or the repair, modification or conversion of the Vessel and/or the Works and/or the performance by the Contractor of its obligations in the GIMI Topsides Agreement shall not exceed [*****]. This shall apply regardless of any act, default, omission or negligence, in whatever form or degree, and whether sole, partial, concurrent or contributory on the part of any person within the Contractor's Group and regardless of any other breach of duty or liability, whether strict, statutory, contractual or otherwise, by any person within Contractor's Group.
37.3 Notwithstanding any provision herein to the contrary or inconsistent herewith, it is agreed between the Parties that the Sub-Contractor's total and entire liability shall be in accordance with the requirements stated in the GIMI Topsides Agreement.
37.4 Until the Owner has fully and completely performed and discharged all its duties, liabilities and obligations under this Agreement, the Owner shall remain the sole, legal and equitable owner of the whole of the Vessel and shall not transfer legal or equitable ownership of the Vessel to any third party or create or permit any lien, charge, debt, mortgage or any other claim whatsoever over or in relation to the Vessel, other than a lien in favour of the Contractor and a mortgage in favour of the financing parties providing financing in respect of the Works and/or Sub-Contract Works.
37.5 Without prejudice to any other rights or remedy which the Contractor may have, whether under this Agreement, under common law, statute, or otherwise and whether in rem or in personam:
(a) The VesselPersonal injury, all her equipment (whether installed on board or not) whenever the same may come into the Contractor's possession, custody or control, the OFE and all goods, materials, Plans, Project Information, documents (including but not limited to the Vessel's certificates), choses-in-action, monies (including but not limited to any insurance proceeds), items and properties in the possession, custody or control fatal injury of the Contractor (collectively SELLER’s employees and the "Lien Property") shall be subject to a particular and general lien and right personnel of detention for:
(i) all monies, sums, amounts and payments due in respect any affiliated of the Lien Property, including but not limited to monies, sums, amounts and payments due and/or arising under this Agreement and the GIMI Direct Agreement; and
(ii) any particular or general balance or other sums, monies, amounts and payments due from the Owner to the Contractor, including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel, including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lienSeller.
(b) The ContractorSELLER’s equipment and to other property of SELLER, by itself resulting from or relating to the performance of this Purchase Order. However, the foregoing shall not apply to cases where negligence or Gross Negligence or Wilful Misconduct of the BUYER or affiliate of the BUYER or its servants personnel caused or agents contributed to such injury, loss or otherwise damage.
24.3 SELLER shall remove at its own cost and expense any obstacle or debris resulting from the SELLER’s performance under this Purchase Order if it is required to do so by the relevant authorities, or if such obstacle or debris interferes with BUYER’s normal operations. In the event the SELLER does not comply with one or more of the foregoing obligations, BUYER shall be entitled to exercise a possessory lien upon perform these itself or by the Lien Property use of another SELLER at the risk and cost of SELLER, and the SELLER shall reimburse to the BUYER all consequential costs and expenses thereby incurred.
24.4 Without prejudice to any indemnity provisions of this Purchase Order neither party (BUYER or SELLER) shall be liable to the other for loss of revenue, anticipated profit or production, or any other consequential or indirect loss or damage arising out of or in connection with the implementation thereof.
24.5 SELLER, in the performance of Purchase Order, shall conduct its operations with due regard to concerns with respect to protection of the environment and conservation of natural resources and shall abide by the existing laws on the subject. SELLER will act with due diligence and conform to established sound international petroleum industry practices. SELLER shall ensure that all SELLER’s and their subcontractor’s personnel do their utmost to avoid contamination or pollution of the environment resulting from discharge, disposal, release or escape of garbage, chemicals, lubricants, fuel or other materials, and SELLER shall hold harmless and indemnify BUYER from and against any and all claims and liabilities arising from or relating to such contamination or pollution, caused by breach of duty by any of the SELLER’s or their subcontractor’s personnel.
24.6 Cross Waivers
(a) At Company's request, Contractor shall exchange cross-waivers with Company's other contractors whereby Contractor and said other contractors mutually waive any rights of recourse and arrange for suitable waivers of subrogation rights in respect of any moniesinjury to, sumsor death of its and its subcontractors' respective employees and damage to its subcontractors’ respective property. The text of any cross-waiver to be agreed between Contractor and any other such contractor, amounts and payments howsoever and whatsoever due to the Contractor (including but not limited to those referred to under Article 37.5(a) (Liabilities & Indemnities) above) and shall for the purpose of exercising such possessory lien be entitled to take, retain and keep possession of the Lien Property at the sole risk and expense of the Owner.
37.6 The Owner shall be liable for based on the following: "………………….. [insert Contractor's name] shall indemnify and pay hold ………………….. [insert other contractor's name] and its subcontractors and its and their officers, agents and employees ("indemnities") harmless from and against any and all losses, claims, demands, proceedings, costs, damage to the Contractor all costs property of …………….[ insert Contractor's name], its subcontractors and expenses howsoever its and whatsoever incurred by their officers, agents and employees and injury to or on behalf of the Contractor including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs death of any equipmentsuch person howsoever arising and whether caused or alleged to have been caused by the negligence, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien.
37.7 Notwithstanding the Redelivery of the Vessel to the Owner or any delivery or re-delivery of any other Lien Property to the Owner, the Contractor shall be entitled to exercise its rights pursuant to Article 37.5 (Liabilities & Indemnities) as long as the Lien Property is in the Yard whole or in the possession of the Contractor. Further, it is agreed that any agreement on the part of the Contractor to permit Indemnities or allow any Lien Property to leave the Yard for of them."
(b) The provisions of any reason whatsoever (including but not limited to sea trials of the Vessel) whether pursuant to the terms of this Agreement or otherwise such cross waiver shall not prejudice nor be deemed as a waiver of the Contractor's lien (possessory or otherwise) over the Lien Property or of its rights hereunder. It is further expressly agreed that the Contractor's said lien shall re-attach become effective until signed by both Parties and apply in the event the Lien Property returns to the Yard or to the possession of the Contractorexchanged.
Appears in 1 contract
Sources: Supply Agreement
LIABILITIES & INDEMNITIES. 37.1 Except for liquidated damages expressly provided for in this Agreement, the Contractor and the Contractor's Group shall not in any event nor under any circumstances, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability or otherwise, be liable for any loss of profit or revenues, loss of use of any equipment, cost of capital, cost of substitute equipment, facilities, services or replacement power, downtime costs, claims of the Owner's partners or customers for such damages, whether deemed to be direct or indirect and whether or not foreseeable or disclosed at the time of this Agreement, or for any special, consequential, incidental, indirect or exemplary or punitive damages suffered by the Owner , and the Owner shall release and hold harmless the Contractor's Group from such claims.
37.2 Notwithstanding any provision in this Agreement, the GIMI Topsides Agreement or the GIMI Direct Agreement to the contrary or any inconsistency in or across them, it is agreed between the Parties that the Contractor's total and entire liability under this Agreement (other than the Sub-Contract Works) and the GIMI Direct Agreement, including warranty and damages (liquidated or unliquidated), tort (including negligence and breach of statutory duty) or otherwise in relation to or in connection with this Agreement and/or the repair, modification or conversion of the Vessel and/or the Works and/or the performance by the Contractor of its obligations in the GIMI Topsides Agreement shall not exceed [*****]. This shall apply regardless of any act, default, omission or negligence, in whatever form or degree, and whether sole, partial, concurrent or contributory on the part of any person within the Contractor's Group and regardless of any other breach of duty or liability, whether strict, statutory, contractual or otherwise, by any person within Contractor's Group.
37.3 Notwithstanding any provision herein to the contrary or inconsistent herewith, it is agreed between the Parties that the Sub-Contractor's total and entire liability shall be in accordance with the requirements stated in the GIMI Topsides Agreement.
37.4 Until the Owner has fully and completely performed and discharged all its duties, liabilities and obligations under this Agreement, the Owner shall remain the sole, legal and equitable owner of the whole of the Vessel and shall not transfer legal or equitable ownership of the Vessel to any third party or create or permit any lien, charge, debt, mortgage or any other claim whatsoever over or in relation to the Vessel, other than a lien in favour of the Contractor and a mortgage in favour of the financing parties providing financing in respect of the Works and/or Sub-Contract Works.
37.5 Without prejudice to any other rights or remedy which the Contractor may have, whether under this Agreement, under common law, statute, or otherwise and whether in rem or in personam:
(a) The Vessel, all her equipment (whether installed on board or not) whenever the same may come into the Contractor's possession, custody or control, the OFE and all goods, materials, Plans, Project Information, documents (including but not limited to the Vessel's certificates), choses-in-action, monies (including but not limited to any insurance proceeds), items and properties in the possession, custody or control of the Contractor (collectively the "Lien Property") shall be subject to a particular and general lien and right of detention for:
(i) all monies, sums, amounts and payments due in respect of the Lien Property, including but not limited to monies, sums, amounts and payments due and/or arising under this Agreement and the GIMI Direct Agreement; and
(ii) any particular or general balance or other sums, monies, amounts and payments due from the Owner to the Contractor, including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel, including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien.
(b) The Contractor, by itself or its servants or agents or otherwise shall be entitled to exercise a possessory lien upon the Lien Property in respect of any monies, sums, amounts and payments howsoever and whatsoever due to the Contractor (including but not limited to those referred to under Article 37.5(a) (Liabilities & Indemnities) above) and shall for the purpose of exercising such possessory lien be entitled to take, retain and keep possession of the Lien Property at the sole risk and expense of the Owner.
37.6 The Owner shall be liable for and pay to the Contractor all costs and expenses howsoever and whatsoever incurred by or on behalf of the Contractor including but not limited to berthing, mooring, wharfage and dock charges or dues, storage fees costs of any equipment, goods or materials or manpower supplied to the Vessel, the costs of any movement of the Vessel including the towage thereof, insurance premiums, legal fees and the cost of recovering all such charges, fees, costs and expenses, for the purpose of exercising or preserving or attempting or preparing to exercise and preserve such lien.
37.7 Notwithstanding the Redelivery of the Vessel to the Owner or any delivery or re-delivery of any other Lien Property to the Owner, the Contractor shall be entitled to exercise its rights pursuant to Article 37.5 (Liabilities & Indemnities) as long as the Lien Property is in the Yard or in the possession of the Contractor. Further, it is agreed that any agreement on the part of the Contractor to permit or allow any Lien Property to leave the Yard for any reason whatsoever (including but not limited to sea trials of the Vessel) whether pursuant to the terms of this Agreement or otherwise shall not prejudice nor be deemed as a waiver of the Contractor's lien (possessory or otherwise) over the Lien Property or of its rights hereunder. It is further expressly agreed that the Contractor's said lien shall re-attach and apply in the event the Lien Property returns to the Yard or to the possession of the Contractor.
Appears in 1 contract