Terms & Conditions
1. The following definitions shall apply:
(a) The "Company" shall be WK Webster & Co Ltd and/or any subsidiary or affiliated company, whether in the UK or elsewhere, and/or any company or entity in which W K Webster & Co Ltd has a controlling interest.
(b) The "Client" shall be the company, entity or person on whose behalf the Company shall provide the agreed Services and/or the Instructing Party and/or the Party responsible for settlement of the Company's fees.
(c) The "Services" shall be those tasks carried out by the Company as Agent for the Client, either by Agreement or as defined by or ejusdem generis with the definition of Services in the Company's E&O policy.
2. Agreement to Standard Terms & Conditions (STCs)
(a) By appointing the Company, the Client acknowledges that he has sufficient Notice of the STCs and is bound thereto.
(b) Unless there is a separate written Agreement, the instruction by the Client is irrevocably agreed as being subject to these STCs.
(c) The STCs may only be amended by written agreement between the Company and the Client.
(d) These STCs may be further supplemented by service-specific Terms & Conditions, of which the Client shall be given due and proper notice in respect of each individual instruction, e.g. W K Webster & Co Ltd's Cargo Casualty Management Department's and/or Hull Claims Management Department's specific Terms for the provision of General Average and/or Salvage securities or similar.
(e) In the event of a conflict between the STCs and any written Agreement, the terms of the Agreement shall prevail.
3. Acceptance of Appointment
(a) The Company is at all times acting solely as Agent for the Client and never acts as Principal in its own right.
(b) Nothing shall prevent the Company also acting as Agent for another Client.
(c) Other than as may be provided for in a separate Agreement, the Company may refuse or withdraw from an instruction in its sole discretion.
(a) The Company has the authority to take or not to take appropriate steps in the prosecution of the Services, save that the Company shall not incur third party disbursements without the Client's written approval.
(b) For the avoidance of doubt, such steps are always taken by the Company in its capacity as Agent for the Client.
5. Client Warranties
(a) It is a condition precedent, and the Client warrants, of any matter and/or instruction that the Client has some legal, equitable, physical or financial interest therein.
(b) The Client warrants that it has irrevocable authority to instruct the Company.
(c) The Client warrants that the Company shall be the sole party instructed in respect of the Services and/or subject matter.
(d) The Client warrants that the instruction and/or subject matter are not illegal and do not contravene, including but not limited to, Anti-Bribery, Proceeds of Crime, Money Laundering and/or Sanctions legislation (OFAC/UN/EU/UK).
6. Client Obligations
(a) Other than as may be agreed in writing from time to time during the provision of Services, the Client agrees in general term to provide full assistance to the Company, including but not limited to, at the Company's request, relevant full disclosure, documentation, information and access to relevant persons.
(b) The Client shall immediately inform the Company of any material change in circumstances that may affect the provision of Services, in particular payment of or receipt of any monies in respect of the subject matter.
(c) The Client shall not, during the term of provision of the Services, negotiate or deal with the subject matter directly, unless such Services are properly terminated and relevant fees and disbursement settled.
(d) The Client shall promptly settle fees and expenses of the Company and irrevocably agrees that the Company's fees become payable upon presentation. The Company reserves the right to levy a late payment / interest charge, either of its own assessment (currently 2% per annum above the relevant National Bank base rate) or pursuant to relevant statutory legislation.
7. Third Parties & Sub-Agents
(a) The Company shall not delegate or abrogate its responsibilities to the Client in respect of the Services.
(b) Should the Company need to appoint third party experts and/or lawyers, it shall do so with the prior written authority of the Client. In exceptional circumstances, when it proves impossible to obtain authority from the Client, and the Company deems it necessary and in the interests of the Client, the Company may appoint a third party (e.g. a lawyer to protect a time bar) on its own authority but the Client shall be advised as soon as practicable thereafter. The Client shall remain responsible for settlement of the third party's fees.
(c) Should the appointment of a third party solely be as surveyor in respect of the subject matter, then the Company has irrevocable authority to appoint the said surveyor. The terms of Clause 4 (a) shall not apply and the Client shall be liable for the third party's fees.
(d) At all material times, such third party shall be acting as Agent of the Client.
(a) Fees shall be calculated either by reference to the Company's relevant fee scale in operation at the material time or by separate written agreement between the parties. Fee scales for various services and locations are always available upon request. Where fee scales are in place as per separate written agreement between the parties, the fee scales are subject to an annual review and adjustment for inflation (of 2%), unless otherwise agreed in writing between the parties.
(b) The Company's invoices become payable immediately upon presentation. The Company reserves the right to levy a late payment/interest charge, either of its own assessment (currently 2% per annum above the relevant National Bank base rate) or pursuant to relevant statutory legislation.
(c) Fees are payable in full without set-off or deduction in respect of any other Services or subject matter.
(d) Where any invoiced fees due have been outstanding for more than 60 days, whether arising from or under the terms of this STC or otherwise howsoever arising, the Company may set-off the amount due against any current or future funds held or received by the Company on behalf of the Client for any reason whatsoever. For the avoidance of doubt, this includes funds held by any and all entities of the Company, as defined under 1(a) above. The Company will notify the Client, per e-mail, about the intended set-off, providing reasonable identifying details of both the funds held and the fees due (“the Initial Notice”) together with a confirmation of the remaining balance. If the funds held and the funds due are in different currencies, then the exchange rate used shall be that of the date of the Initial Notice. The set-off may be effected without any further notice or confirmation 14 days after the Initial Notice, unless payment of the outstanding amount is received by the Company in full before this date.
(e) The Company may request payments on account and / or issue interim fees.
(f) The fees quoted are exclusive of VAT or other local taxes which may be applicable.
9. Lien & Retention
(a) The Company will retain documents and electronic files for a period of six years following completion of Services.
(b) The Company reserves the right to hold relevant documents, etc. in the event of an unresolved dispute between the Client and the Company.
(c) The Company shall comply with any legal requirement to hand over documents even though they may properly be the property of the Client.
(a) Services may be terminated by either party in its sole discretion or by bankruptcy, winding up or sale of either party.
(b) In the event that such termination is due to the bankruptcy or winding up or sale of the Client, the Company shall have irrevocable right to set off any monies and / or to receive any payments ultimately due to the Client in order to satisfy the Company's fees and expenses.
(c) In the event of voluntary termination, the Client shall remain liable as Principal for any personal obligations of the Company pursuant to the provision of Services, including but not limited to payment of fees and disbursements and to settlement of any Personal Guarantees (e.g. General Average and Salvage) extant at the material time.
(d) In the event of voluntary termination, in respect of services provided on a contingency basis (e.g. Recovery / Subrogation), then the Company shall be entitled to be paid either the fee that would reasonably have been paid had the subject matter been pursued to conclusion or a fee calculated on the hourly rate applicable at the material time.
(e) In the event of voluntary termination, in respect of services other than Clause 10 (d), the Company shall either finalise subject matters in run-off (and be paid as agreed) or close their file(s) and be entitled to their fees either as per fee scale or per hourly rate for time spent until termination at the hourly rate applicable at the time.
(f) Notwithstanding termination, obligations under these STCs remain in full force and effect.
11. Data Protection
(a) The Company shall comply with their obligations under the Data Protection Directive (95/46/EC) and any other similar legislation elsewhere in the world. The Company is also fully compliant with The General Data Protection Regulation (GDPR).
(b) Under these terms and conditions all parties agree that in respect of all personal data (as defined in the Data Protection Directive) contained in the data or the records of the Client and/or any party subject to the insurance contract under which the Company has been appointed to handle a claim, the Client shall be the Data Controller.
(c) The Company shall process such personal data only for the purpose of performing the Services and only act according to the written instructions from the Client from time to time or otherwise in accordance with the services to be provided under the Client’s service agreement or when legal and/or regulatory obligations require.
(d) The Client warrants that it has in place and will maintain for the duration of the service agreement the necessary consents from data subjects to permit the Company and its authorised sub-contractors to process personal data pursuant to the service agreement.
(e) The Company will not disclose, provide, transfer or otherwise disseminate customer data to any third party except where such disclosure, provision, transfer or dissemination is required solely to allow the Company to meet its obligations under this service agreement or when legal and/or regulatory obligations require;
(f) The Company will use organisational measures to safeguard all data and records against unauthorised or unlawful processing of personal data of which the Client is the data controller;
(g) The Company will ensure a level of security is maintained appropriate to the risk represented by the processing and the nature of such personal data to be protected;
(h) The Company will take reasonable actions to ensure the reliability of any of its staff and agents which have access to personal data in connection with the Client’s service agreement;
(i) Where a request is received by the Company directly from data subjects of personal data, of which the Client is the data controller, in relation to the processing of their personal data, the Company will promptly notify the Client of any such requests.
(a) The Company shall not be responsible for any losses whatsoever, whether to the Client or to third parties, occasioned by the Company following the instructions of the Client. In such circumstances, the Client shall remain irrevocably responsible to indemnify any third party losses and/or Company losses and the Client shall take over at its own expense defence and settlement of any claims brought directly against the Company by a third party.
(b) The Company shall only be responsible for losses caused by its own gross negligence or wilful misconduct. In the event that such losses are proven, the Company's limit of liability shall be 10 times the applicable fee or GBP30,000.00 (or equivalent in alternative currency), whichever is the lower.
(c) Any claims against the Company by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the completion or termination of the Services in each case.
13. Third Party Rights
(a) These STCs set out the rights and obligations of the Client and the Company only. No third party shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
(a) The Company reserves the right from time to time to amend these STCs in its sole discretion and any amendments shall come into effect 30 days after such amendment.
(b) No variation, waiver or release from these STCs is permissible without the agreement of the Company.
15. Force Majeure
(a) Neither the Client nor the Company shall be liable to the other for failure to honour its obligations due to causes beyond its reasonable control.
(a) Any personal, proprietary or intellectual property belonging to either the Client or to the Company shall at all times, even surviving termination of services, remain the sole property of that party.
(b) Both parties shall keep the terms of any engagement, as well as the details of any subject matter in respect of which the service have been provided and any data in relation thereto, including but not limited to personal data, private and confidential and shall not release such information to any third party save:
(c) Such information may be released with the agreement of the relevant party
(d) Such information is already in the public domain and available other than by disclosure by one of the parties
(e) Such information must be divulged by operation of law, whether statutory or by reason of Court Order
(f) Such information must necessarily be given to a third party or sub-Agent in order for the Services to be properly performed
17. Law & Jurisdiction
(a) These STCs shall be governed by and construed in accordance with English Law and any dispute arising thereunder shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any modification thereof.
(b) Any dispute shall be conducted and resolved in accordance with LMAA Terms in effect at the material time. The Reference shall be to three arbitrators or, if agreed between the parties, to a sole arbitrator. All procedural steps shall be in accordance with LMAA terms.
(c) Claims under GBP50,000.00 (or equivalent alternative currency) shall be conducted in accordance with LMAA Small Claims Procedure in effect at the material time.
(d) The parties may elect to proceed to Mediation. If Mediation is unsuccessful, then it shall be deemed to have been confidential and without prejudice to any subsequent arbitration.
(e) The parties may jointly agree to arbitration in an alternative forum.