- The following Cleaning Plant Terms and Conditions (hereinafter the “Terms”) shall apply to any and all services provided by Clean Water of New York, Inc., and its parent, subsidiary, and affiliated entities (hereinafter “CWOFNY”). By submitting the Cleaning Plant Scheduling Form, the Company therein (for and on behalf of itself and its parent, subsidiary, and affiliated entities, whether direct or indirect) and the Vessel/Tug therein (for and on behalf of itself and its owners and charters), and each of their successors and assigns (collectively hereinafter the “Customer”) expressly accept and agree that these Terms shall apply.
- CWOFNY’s acceptance of any agreement with the Customer, including the Cleaning Plant Scheduling Form and any and all other correspondence, agreements, forms, proposals, or otherwise, including modifications or supplements thereto, is expressly made conditional upon the Customer’s acceptance of all of these Terms.
- CWOFNY objects to any additional or different terms and conditions, whether contained in the Customer’s correspondence, agreements, forms, proposals, or otherwise. If Customer’s correspondence, agreements, forms, proposals, or other documents contain terms or conditions contrary to or in addition to these Terms, then even in the absence of objection by CWOFNY, fulfillment of any services by CWOFNY: (i) is not an acceptance of Customer’s terms or conditions; (ii) will not be construed as assent to such contrary or additional terms and conditions; (iii) shall not establish a course of dealing or course of performance incorporating such contrary or additional terms and conditions; and (iv) will not constitute a waiver by CWOFNY of any of these Terms.
- Customer’s acceptance of these Terms will be made by the earlier of: (i) CWOFNY’s receipt of the Cleaning Plant Scheduling Form or written assent from the Customer; (ii) partial performance by either Customer or CWOFNY; or (iii) the Customer’s tendering of any Vessel/Tug.
- These Terms cannot be varied except by means of a further written agreement executed by the parties and which explicitly references these Terms by its title.
- In the event of a conflict between these Terms and any other document containing terms and conditions arising out of or relating to the parties’ relationship, including any correspondence, agreements, forms, proposals, or other documents, these Terms shall be paramount and control.
- The Customer may request, and CWOFNY may elect to approve and grant at its
sole and exclusive discretion, access or use of CWOFNY’s services, facilities, or property, including the Vessel and other property of the Customer while the Vessel is at or about CWOFNY’s facilities or while in CWOFNY’s care, custody, or control, to Customer’s agents, contractors and subcontractors at any tier, invitees, laborers, licensees, materialmen, suppliers, surveyors, vendors, and visitors (collectively hereinafter “Vendors”). - Customer warrants that its Vendors will acknowledge, accept, agree, and execute: (i) CWOFNY’s Application for Vendor Authorization (which, together with its terms, is expressly made a part hereof and is available at www.cwofny.com/vendor-authorization-terms-and- conditions and upon request); and (ii) a written indemnification agreement with Customer that specifies CWOFNY as an indemnitee on terms no less favorable to CWOFNY than Customer’s indemnification obligations under these Terms. The Vendors shall execute the foregoing before accessing or using any of CWOFNY’s services, facilities, or property.
- Customer further warrants that it will cause its Vendors to maintain in effect, for the benefit of CWOFNY, the same insurance required herein by the Customer (except Hull and Machinery and Protection and Indemnity), but with $2,000,000.00 for Umbrella/Excess coverage.
- Customer accepts and agrees to indemnify, defend, and hold harmless CWOFNY from any and all causes of action, claims, damages, liabilities, losses, suits, and demands by whosoever, of any nature, by reason of any matter, cause, or thing whatsoever arising out or in connection with (i) these Terms, (ii) the parties’ relationship (iii) CWOFNY’s acts, omissions, services, facilities, or property, (iv) Customer’s acts or omissions including those of its employees, (v) Customer’s Vendors or Vendors’ employees, or (vi) the Vessel, whether caused by (a) CWOFNY, including where caused solely or exclusively by CWOFNY (except to the extent caused by CWOFNY’s gross negligence or willful misconduct) or (b) any other entity or person. The foregoing duties of Customer shall include indemnity against all costs, expenses, and liabilities incurred by CWOFNY whatsoever arising out or in connection with any such causes of action, claims, damages, liabilities, losses, suits, and demands, including CWOFNY’s investigation and defense thereof and its attorney’s fees. Customer acknowledges that this provision indemnifies CWOFNY for CWOFNY’s own acts or omissions, including its sole negligence.
- It is expressly agreed that CWOFNY (and the insurers of policies it procures) shall be entitled to the indemnification afforded by these Terms to the fullest extent permitted by law, and irrespective of any collateral source afforded to CWOFNY and irrespective of whether Customer and/or Customer’s Vendors maintain the insurance required by these Terms.
- CWOFNY shall be entitled to all of its damages, including incidental and consequential damages, for any arbitral or judicial proceeding in which CWOFNY seeks to enforce its rights or compel Customer’s obligations under these Terms.
- Throughout the course of CWOFNY’s services to Customer and at all times while Customer and/or its Vendors access or use any of CWOFNY’s services, facilities, or property, the Customer shall procure and maintain in full force and effect the following insurance with the minimum limits of $1,000,000.00 per occurrence except where specified:
- Workers’ Compensation/Employers’ Liability, which shall be in compliance with the statutory requirements of the state of hire and any other jurisdiction in which CWOFNY provides services to Customer;
- U.S. Longshore and Harbor Workers’ Compensation Act coverage (“USLHWCA”), which shall be in compliance with the federal requirements;
- Maritime Employers Liability, which shall include coverage for bodily injury, illness, occupational sickness or disease, or death, and liability under the Jones Act and general maritime law;
- Marine/Commercial General Liability, which shall include coverage for Customer’s liabilities assumed pursuant to these Terms, blanket contractual liability coverage, action over/indemnity buyback coverage, and ship repairers’ legal liability coverage;
- Hull and Machinery, which limit of coverage shall not be less than the replacement value of the Vessel;
- Protection and Indemnity, which shall include coverage for Jones Act andgeneral maritime law seaman-status claims, pursuant to a standard SP-23 (Revised 1/56) protection and indemnity policy, or its equivalent, shall schedule the Vessel, and shall delete the “as owners” requirement with respect to the coverages for CWOFNY;
- Pollution, which shall include coverage for pollution/environmental liabilities for pollution emanating from or caused by the Vessel, including liabilities arising from the continuous or sudden and accidental release or threatened release of pollutants or hazardous substances under OPA, CERCLA, the Clean Water Act or similar local, state, federal, or international laws and regulations, in an amount not less than $1,000,000 (or any statutory amount
required for the Vessel, if greater) on terms and conditions available by Safe Harbor Insurance Co., or equivalent; and - Umbrella/Excess, which shall include excess coverage to the foregoing insurance and with a limit of liability no less than $10,000,000.00.
- The foregoing insurance shall: (i) expressly include CWOFNY as an additional named insured and loss payee (except the Workers Compensation and USLHWCA coverages); (ii) be primary and non-contributory to any other insurance available to CWOFNY; and (iii) shall include a waiver of subrogation in favor of CWOFNY. All claims expenses and loss payments within the deductibles and/or self-insured retentions under the foregoing insurance required by these Terms shall be borne exclusively by the Customer and not CWOFNY.
- Contemporaneously with its submission of the Cleaning Plant Scheduling Form, Customer shall provide to CWOFNY certificates of insurance confirming the required coverages and limits. Customer’s failure to do so shall not be deemed a waiver by WOFNY of any of the insurance requirements or other Terms.
- Any and all disputes between the parties, including without limitation all claims or controversies arising out of or relating in any way to the entirety of the parties’ relationship or these Terms or the breach, enforcement, interpretation, termination, or validity thereof, or the parties’ acts or omissions arising out of or relating in anyway herewith, whether contractual, extra-contractual, statutory, tortious, or otherwise, based in admiralty, equity, law, or otherwise (hereinafter “Disputes”), shall be governed by and construed in accordance with the federal admiralty and maritime laws of the United States and, in the absence thereof, the laws of the State of New York.
- All Disputes, including without limitation the determination of the arbitrability, applicability, or scope of this provision to arbitrate, shall be exclusively and finally determined by arbitration in the State of New York. The arbitration shall be administered by the Society of Maritime Arbitrators, Inc. pursuant to its rules in force when such proceeding is commenced. The arbitrators shall be members of the Society of Maritime Arbitrators, Inc. The arbitration award shall be final and binding on the parties. Judgment on the award may be entered in any court in the world having jurisdiction. In agreeing to this arbitration provision, the parties acknowledge and mutually agree that they are waiving any right they may have to a court or jury trial. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.