Legal

SSY Valuations Terms & Conditions

Topics covered

  • Definitions

  • Services

  • Client Obligations

  • Indications of Value

  • Use of Valuations

  • Fees

  • Limitation of Liability

  • Indemnity

  • Sanctions, Money Laundering, Bribery, and Anti-Corruption

  • Miscellaneous

  • Jurisdiction and Law

SSY Valuation Client Terms & Conditions

These Terms and Conditions (together with the Valuation Certificate) apply to all dealings between You and SSY Valuation Services Ltd, SSY Valuation Services AS or SSY Asia Valuation Services Limited (“SSY”) and will be effective whenever You request SSY to provide Services, or You respond to SSY in relation to the provision of Services. These Terms and Conditions (together with the Valuation Certificate) create a legally binding agreement between You and SSY (‘You’, ‘SSY’, ‘Valuation Certificate’ and ‘Services’ are defined below). Terms and Conditions for SSY Futures Ltd and other regulated businesses are as agreed between the relevant companies.

Attention is specifically drawn to the provisions of these Terms and Conditions that limit SSY’s liability in Clause 7.

The term ‘Partner’ refers to any individual who is a member of Simpson Spence Young LLP and any associated partnership (whether limited liability partnership or general partnership within the SSY group) or an employee or consultant with equivalent standing based on their experience and or qualifications. The term “Associate Partner” is used to refer to an employee or consultant of Simpson Spence Young LLP or its affiliated businesses.

1. Definitions

In these Terms and Conditions the following definitions apply:

“Finance Provider”: A financial institution providing finance in respect of the Vessel the subject of the relevant Valuation.

“Sanction(s)”: Any and all sanctions imposed by the United Nations, the European Union, the United Kingdom, the United States of America or any other national government or competent authority thereof.

“Services”: The valuation services carried out by SSY as provided for in these Terms and Conditions.

“Valuation”: A valuation of a Vessel by SSY, as stated in a Valuation Certificate.

“Valuation Certificate”: The relevant valuation document (in the form of a signed letter or document) from SSY to You setting out the value of the Vessel or Vessels.

“Vessel”: Any type of ship, other vessel 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.

“You”: The party to whom the Valuation Certificate is addressed or (with SSY’s agreement) who is otherwise requesting or making use of the Services.

The above definitions apply whether the defined words appear in the singular or plural form.

2. Services covered by these Terms and Conditions; SSY obligations

2.1. SSY will prepare Valuations in accordance with these Terms and Conditions and the Valuation Certificate.

2.2. Valuations, unless agreed otherwise, will be prepared in accordance with the methodology and assumptions as follows:

2.2.1. by comparison with recent prices achieved in the market for similar tonnage;

2.2.2. by collating brokers’ price estimates and/or ideas and market knowledge in respect of the Vessel and similar vessels;

2.2.3. by corroborating, where possible and appropriate, the above referenced price estimates and/or ideas and market knowledge against details held on SSY’s database, information in SSY’s works of reference and particulars given to SSY for the preparation of the Valuation;

2.2.4. if there is a lack of recent prices reported and/or referenced price estimates and/or ideas then the value given will be a notional figure taking into account the perceived market level at the relevant time;

2.2.5. where the Vessel is highly specialised, by assessing the current earning potential of the Vessel, and that of comparable vessels where information is available, as well as our estimate of the newbuilding replacement cost of a vessel of similar design, specification and equipment to the Vessel;

2.2.6. by assuming that the Vessel is safely afloat in good and seaworthy condition, undamaged and fully equipped and would be delivered as such, with all her classification records maintained, free of conditions and recommendations and with all her certificates clean, valid and un-extended;

2.2.7. by assuming that the Vessel is available for prompt charter-free delivery by a willing seller and a willing buyer for cash payment under normal commercial terms;

2.2.8. by assuming that the Vessel would be delivered free from all debts, registered encumbrances and maritime liens;

2.2.9. by identifying a valuation date; and

2.2.10. without physical sight or inspection of the Vessel or her classification records.

2.3. You acknowledge and agree that:

2.3.1. Valuations are made as of the date specified in the Valuation Certificate;

2.3.2. time for provision of any Valuation is not of the essence; and

2.3.3. SSY reserves the right to decline to provide or to terminate (in each case in SSY’s absolute discretion) any Services for any reason.

2.4. SSY reserves the right to modify the format or delivery method of its Valuation Certificate from time to time.

2.5. SSY will perform the Services with reasonable skill and care and in accordance with applicable law.

3. Your obligations as client

3.1. You:

3.1.1. will ensure that any information provided to SSY is complete, accurate and up to date;

3.1.2. will not edit or alter the Valuation Certificate or any part of it;

3.1.3. will comply in all respects with applicable law; and

3.1.4. undertake to SSY that these Terms and Conditions and any Valuation Certificate are binding upon, and enforceable against, You.

3.2. You agree that SSY shall not be responsible if the Valuation Certificate or any part of it is edited or altered other than by SSY.

4. Indications of value

You acknowledge and agree that an oral or written indication of value of a Vessel given by SSY is not a substitute for a Valuation Certificate, and You shall not represent otherwise to any third party. All restrictions on use, sharing and limitations of SSY’s liability that apply in these Terms and Conditions to Valuations and Valuation Certificates shall also apply to any such indications of value.

5. Use of Valuations

5.1. Valuations:

5.1.1. are addressed only to You and are for Your internal use only; and

5.1.2. may not be shared, published or circulated (including in a public document, fundraising document, or prospectus) by You or on Your behalf to or with any person other than You in any manner without the prior written approval of SSY (“Approval”).

5.2. SSY reserves the right to withhold such Approval at its sole discretion without providing any reason for such refusal.

5.3. Where Approval is given:

5.3.1. the Valuation must be disclosed in full, with all disclaimers and information attached;

5.3.2. SSY shall have no liability to the person(s) to whom the Valuation is disclosed (the ” Third-Party Recipient”);

5.3.3. You shall provide the Third-Party Recipient with a copy of these Terms and Conditions; and

5.3.4. You shall be liable for, and shall indemnify SSY, SSY’s affiliates and their respective officers, directors, employees and agents (“SSY Indemnified Persons”) in respect of: (i) any action or omission by the Third-Party Recipient which would have constituted a breach of these Terms and Conditions or the Valuation Certificate had it been Your action or omission; and (ii) any claim by a Third-Party Recipient against SSY in connection with a Valuation or Approval. To the fullest extent permitted by law, SSY shall have no liability to a Third-Party Recipient.

5.4. Where You require a Valuation Certificate to be addressed directly to a Finance Provider (and SSY agrees to such request):

5.4.1. the Finance Provider shall adhere to and be bound by these Terms and Conditions and the Valuation Certificate (including regarding limitations of liability) as if it were You (other than in respect of the obligation to pay the Fee if the Fee is Your responsibility); and

5.4.2. You shall be liable for, and shall indemnify the SSY Indemnified Persons in respect of, any act or omission by the Finance Provider which would have constituted a breach of these Terms and Conditions or the Valuation Certificate had it been Your act or omission.

6. Fees

6.1. SSY’s remuneration in respect of a Valuation will (unless otherwise agreed) be in the form of a fixed fee, which shall be agreed between You and SSY (the “Fee”).

6.2. Upon delivery of a Valuation Certificate, SSY will be entitled to raise an invoice for the relevant Fee plus any applicable sales taxes (such as VAT). Payment is due within 30 days of the date of the invoice.

6.3. All sums payable to SSY relating to the Services shall be paid without delay, counterclaim, withholding or set off.

6.4. If You fail to pay SSY the Fee due within 30 days after any invoice for the Services is issued and sent to You, You will, without limiting any other remedy available to SSY, be liable to pay interest on the Fee from the date it became due at the rate per annum of 8% above the Bank of England’s base rate from time to time.

7. Limitation of Liability

This clause limits SSY’s liability to You.

7.1. This clause sets out the entire liability of SSY (including any liability for the acts or omissions of its employees or agents) to You arising under or in connection with these Terms and Conditions and any Valuation Certificate and/or in respect of any use made by You or any third party of the Valuation.

7.2. Nothing in these Terms and Conditions limits SSY’s liability for: (i) fraud or fraudulent misrepresentation; or (ii) death or personal injury caused by the negligence of SSY.

7.3. SSY will, subject to the provisions of this clause 7, be liable to You for damage directly caused by the failure to perform the Services with reasonable skill and care, provided always SSY will not be liable for:

7.3.1. loss of profits (whether direct or indirect loss), business interruption (whether direct or indirect loss), loss of reputation (whether direct or indirect loss), or any indirect or consequential losses;

7.3.2. losses caused as a consequence of a breach (other than by SSY) of these Terms and Conditions or the Valuation Certificate or otherwise as a result of matters outside of SSY’s control; or

7.3.3. claims where proceedings are not brought within 12 months of the date of the Valuation.

7.4. SSY’s total aggregate liability in respect of or in connection with these Terms and Conditions, a Valuation or Valuation Certificate, including costs and interest, shall in no circumstances exceed an amount equal to 200% of the Fee actually received by SSY in respect of the relevant Valuation.

7.5. In the event that a lump sum is paid in respect of these Terms and Conditions for the provision of Valuations for multiple Vessels, the amount of fee paid to SSY in respect of any single Valuation in connection with which a claim arises under clause 7.4 shall be deemed to be the result of dividing the lump sum by the number of Vessels valued in connection with such lump sum.

7.6. Valuations are statements of subjective opinion only, based on assumptions and information supplied by You (and other relevant works of reference in SSY’s possession) and prepared in accordance with such methodologies as are ordinarily used by SSY in preparing Valuations. The Valuation shall not be deemed, treated, or represented by You as an endorsement of Your commercial position. SSY gives no warranty or representation, and accepts no responsibility, as to:

7.6.1. the saleability, condition or fitness for purpose of any Vessel;

7.6.2. whether the Valuation would be realisable in any commercial transaction;

7.6.3. the accuracy of information used by or supplied to SSY in connection with preparation of the Valuation;

7.6.4. the accuracy of the Valuation; or

7.6.5. the suitability, appropriateness or fitness for purpose of the methodologies used by SSY to determine the Valuation.

7.7. The exclusions and/or limitations set out in this clause shall apply whether the claim against SSY is brought in contract, tort (including for negligence), breach of statutory duty or for any other cause whatsoever.

7.8. This clause 7 shall survive termination of these Terms and Conditions, for whatever reason.

8. Indemnity

You agree and hereby undertake to hold the SSY Indemnified Persons harmless against all demands, actions, claims, liabilities, losses, costs, charges and expenses incurred by the SSY Indemnified Persons arising out of and/or in connection with the provision of Valuations for any purpose.

9. Sanctions, Money Laundering, Bribery, and Anti-Corruption

9.1. In addition to Your obligations as set out in clause 3 of these Terms and Conditions, You warrant that during the provision of the Services and at the date of the Valuation:

9.1.1. You (which for the purpose of this clause 9 includes any affiliated company, owning company, group company, associated entity, or subsidiary), any party involved in the Valuation and any Vessel are not subject to or in breach of any Sanctions;

9.1.2. You do not know of any reason why the Valuation could be unlawful or which could render the provision of the Services by SSY in breach of any relevant law, including but not limited in any way whatsoever to Sanctions and/or any legal provision relating to money laundering, bribery and/or corruption; and

9.1.3. the Valuation will not be used in breach of any Sanctions or as part of any transaction involving a sanctioned or listed Vessel.

9.2. In the event that You become aware of any circumstance or occurrence which renders You and/or any other party and/or the provision of the Services in breach of this clause 9 You will forthwith advise SSY and take all available steps to rectify the breach.

9.3. In the event that SSY has any reasonable grounds to believe that the Valuation or the provision of the Services may be in breach of this clause 9 SSY may by written notice terminate the Services immediately without incurring any liability howsoever arising from such termination.

10. Miscellaneous

10.1. All intellectual property rights in or arising out of the Services belong to SSY. Any data generated by SSY in connection with provision of the Services by SSY shall be owned (and may freely be used) by SSY.

10.2. These Terms and Conditions (together with the Valuation Certificate) constitute the entire agreement between the parties and (save in the case of fraud) supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between You and SSY, whether written or oral, relating to its subject matter.

10.3. No variation of these Terms and Conditions (together with the Valuation Certificate) shall be effective unless it is in writing and signed by the parties.

10.4. If any provision or part-provision of these Terms and Conditions (together with the Valuation Certificate) 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 (together with the Valuation Certificate).

10.5. A waiver of any right or remedy under these Terms and Conditions (together with the Valuation Certificate) is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

10.6. 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.

10.7. No person other than the named addressee of the Valuation shall have any rights whatsoever as arising out of or in connection with the Valuation under the Contract (Rights of Third Parties) Act 1999 or otherwise.

11. Jurisdiction and Law

These Term and Conditions together with the Valuation Certificate (and any dispute or claims relating thereto) shall be governed by and construed in accordance with the laws of England and Wales. Any dispute arising out of or in connection with this Terms and Conditions and the Valuation Certificate shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced and shall be before three (3) arbitrators, with each party appointing its own arbitrator and with the arbitrators so appointed appointing the third arbitrator save that where the dispute is for an amount less than US$100,000 it shall be resolved in accordance with the LMAA Small Claims Procedure. All arbitration proceedings, documents and the arbitration award are to be confidential.