1.1 Agreement: shall mean the agreement between the Customer and FMTC for the delivery of Services.
1.2 Customer(s): shall mean any natural person or business entity with whom FMTC and its employees deal in the course of its business, including representative(s), agent(s), successor(s) and including visitors of the FMTC website.
1.3 Party or Parties: shall mean FMTC and Customer, individually or collectively.
1.4 Service(s): shall mean the full assortment of FMTC’s training services, courses, and other services, including but not limited to maritime, offshore, wind and industry training.
1.5 Terms: shall mean these U.S. General Terms and Conditions of FMTC.
1.6 User(s): the individual person(s) authorized to use the Services and to attend training courses under the Agreement.
2.1 These Terms apply to all offers of FMTC and exclusively govern the relationship between FMTC and Customers, and any Agreement or other agreements between FMTC and Customers, and any subsequent amendment to any agreement or the Agreement.
2.2 No other Terms shall be binding upon FMTC unless accepted by it in writing. FMTC expressly rejects any general Terms used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different Terms contained in any such purchase order will be null and void and do not bind FMTC.
2.3 FMTC reserves the right to amend these Terms at any time. New or amended general Terms shall be applicable upon thirty (30) days notice to Customer.
2.4 In case of inconsistencies between the terms of an Agreement and those contained in these Terms, those in the Agreement shall control.
3 Offers and Acceptance
3.1 All offers of FMTC are non-binding and may be revoked at any time, unless FMTC stated otherwise in writing. Any amendments made by FMTC in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of a FMTC offer will be deemed a new offer by Customer, which FMTC may accept or reject in its sole discretion. Offers will only be deemed accepted by FMTC if it does so in writing.
3.2 All information, data or undertakings provided verbally or in documentation, price lists or other material related to Services, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included and confirmed in writing in the Agreement with FMTC.
4 Prices and Taxes
4.1 Configurations and prices of Services are subject to change at any time, and FMTC shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents. Customer agrees to any such changes of prices or configurations if it does not object in writing to FMTC within seven (7) business days of when Customer receives an invoice incorporating said changes.
4.2 All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on FMTC or Customer by any taxing authority (other than taxes imposed on FMTC’s income), related to Customer’s order, unless Customer has provided FMTC with an appropriate resale or exemption certificate for the delivery location, which is the location where the Services are performed. In case of changes
in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to FMTC of delivering the Services, whereby and to such an extent FMTC is entitled to increase its prices accordingly and retro-actively.
4.3 The prices or fees quoted are in U.S. dollars, or in another currency if stated by FMTC in writing. Customer shall bear any exchange rate risk, unless otherwise agreement in writing.
4.4 All Agreements for the delivery of Services to Customer shall be treated as separate agreements.
5.1 Customer agrees to pay, without the right to set-off any amount, all invoiced amounts within fourteen (14) days of the invoice date, unless stated otherwise in the Agreement or on the invoice. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.
5.2 Where payment is not made within the terms set forth in this article, the invoice or the Agreement, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term; part of a month shall be considered a full month.
5.3 Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
5.4 If FMTC believes that Customer’s financial position and/or payment performance justifies such action, FMTC has the right to demand advance payment.
5.5 Customer shall be liable for amounts which FMTC incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
6 Services, Courses, Claims and Complaints
6.1 FMTC shall provide the Services in accordance with the Agreement on the basis of best commercial efforts.
6.2 FMTC is entitled to engage the services of third parties for the execution of an Agreement.
6.3 Customer shall ensure that Users have the required medical certificates, test, or inspection certificates, as set forth in the course/training description. FMTC may exclude Users from using the Services and attending FMTC training courses, if User does not provide the requested medical certificates before the first training day. The purchase of Services by Customer for Users without the required certificates is at the sole risk of the Customer, and Customer cannot withhold payment, demand refunds, or claim any damages resulting directly or indirectly from the lack of certificates by its Users.
6.4 Courses that are booked online through FMTC’s website, can be cancelled by fax or email to the appropriate FMTC course administrator up to 24 hours in advance, without incurring costs or expenses. Unless agreed upon in writing otherwise, courses that are booked after a specific quote issued by FMTC, can be cancelled by fax or email to the appropriate FMTC course administrator up to seven days in advance, without incurring costs or expenses, except for the exam fees as set forth in the next section. Course fees are not waived and must be paid in full, in case of cancellation of courses or course attendances, respectively within 24 hours or seven days of the start of the course.
6.5 Unless agreed upon in writing otherwise, exam fees are not waived and must be paid in full, in case of cancellation by the Customers or the User of a course within ten (10) days of the start of the course.
6.6 Customer or User may request that a specific User will be replaced by another User, up to 48 hours before the start of the course, without incurring extra costs or expenses.
6.7 Claims and complaints in connection to the Services must be reported in detail and in writing to FMTC within five (5) business days of the last day of the relevant Service or training course. If Customer fails to report timely, FMTC will have no obligation to correct or remedy the Service, unless Customers will pay for all costs and expenses in connection thereto.
6.8 THE SOLE AND EXCLUSIVE REMEDY FOR ALLEGEDLY DEFECTIVE SERVICES, IS AN OFFER BY FMTC TO PROVIDE THE CORRECTED SERVICES TO THE SAME USERS AGAIN, AT NO COSTS FOR CUSTOMER.
7 Intellectual Property Ownership and Right of Use
7.1 All intellectual property rights, e.g., patents, copyrights, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights, tools, documentations, etc., in relation to the Services, are owned by FMTC or its licensor(s). No transfer or other grant of rights is given to Customer, unless explicitly stated in writing. This applies even if Services have been specifically created or developed for Customer.
7.2 Unless otherwise agreed in writing, Customer may not, nor allow or enable any third parties to copy, distribute, publish, or translate the Services, or any part thereof.
7.3 If a third party threatens to infringe any of the intellectual property rights of FMTC and Customer has knowledge of it, Customer is obliged to alert FMTC immediately.
8 Confidential Information
8.1 Confidential Information means (i) the existence and terms of any agreement between the Parties and (ii) any non-public, confidential or proprietary information relating to a disclosing Party, whether or not technical in nature, including any that is designated by the disclosing Party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving Party; (ii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving Party at the time of disclosure by the disclosing Party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing Party; or (v) is developed independently and separately by either Party without use of the disclosing Party’s Confidential Information.
8.2 Each Party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other Party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other Party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing Party’s prior written consent, which consent may be granted or withheld in such Party’s sole and absolute discretion.
8.3 Each Party agrees that it will restrict the circle of employees or third parties it retains who have access to the other Party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms.
8.4 Immediately following the receipt of a written request to this effect by the disclosing Party the receiving Party will return any and all Confidential Information received from the disclosing Party or destroy such Confidential Information, if the disclosing Party so requests.
9 Privacy, Restrictions of Use and Indemnification
9.1 The Parties shall comply with prevailing regulations related to the protection or privacy and processing of personal information.
9.2 The Parties undertake precautions to prevent unauthorized access by third parties to the Services. Customer shall notify its Users of the necessity to observe copyright law.
9.3 If and when requested by FMTC, Customer shall provide all cooperation and information that FMTC may reasonably request to fulfill any of its obligations towards Customer and the Users.
9.4 Customer agrees and warrants that all of its Users agree not to: (i) copy, modify, translate, or reverse engineer any portion of the Services, including but not limited to course and training material; (ii) use any robot, spider, other automated device, or manual process to monitor or copy the Services, the FMTC website or parts thereof; (iii) reformat or frame any portion of the FMTC website; (iv) interfere with the access of any other users to the Services and/or the FMTC website; (v) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature through the Services and/or the FMTC website; (vi) use the Services and/or the FMTC website to violate the security of any computer network, crack passwords or security encryption codes; or (vii) use any device, software or routine that interferes with the proper working of the Services, and/or the FMTC website.
10 Duration, Termination and Suspension of Performance
10.1 Unless otherwise agreed upon in writing, Agreements are entered into for an indefinite period of time and can be terminated for convenience upon sixty (60) days written notice.
10.2 If Customer believes that FMTC has failed to perform under the Agreement, it must notify FMTC in writing and allow four (4) weeks for FMTC to cure if it has failed to perform.
10.3 If Customer fails to make payment of any amount due on the due date or Customer otherwise fails to perform its obligations under the Agreement or these Terms, or if FMTC reasonably expects that Customer will not fulfill its obligations, FMTC may in its sole and absolute discretion suspend performance under its Agreement with Customer and/or terminate the Agreement (in whole or part), with immediate effect, without being liable for any damages to Customer.
10.4 Notwithstanding the above and without any obligation to return any fees or prepaid expenses, FMTC may terminate its relationship with Customer, or may terminate or suspend FMTC’s delivery of Services at any time, or terminate or suspend Customer’s use of Services at any time, all with immediate effect: (i) if Customer is in breach of these Terms and/or the Agreement; (ii) if FMTC reasonably suspects that Customer is using the Services or the FMTC website to breach the law or infringe third party rights; (iii) if FMTC reasonably suspects that Customer is trying to unfairly exploit or misuse the complaint policy, or any of FMTC’s policies; (iv) if FMTC reasonably suspects that Customer is using the Services or the FMTC website fraudulently, or that Services provided to Customer are being used by a third party fraudulently; (v) for a force majeure event that continues for more than twenty (20) business days upon notice; (vi) if Customer fails to pay any amounts due to FMTC; (vii) if required due to change in laws/regulation by a regulator or authority with a lawful mandate, or by any of FMTC’s partners; (viii) in respect to a particular FMTC training or course, upon thirty (30) days’ written notice if FMTC decides to cease offering that training or course; (ix) the bankruptcy of the Customer has been applied for; (x) an attachment is levied on the goods of Customer; (xi) Customer is liquidated or discontinued; and/or (xii) Customer is in violation of any applicable laws or regulations.
10.5 Upon suspension and/or termination, of the Agreement, all invoiced sums will become immediately due and payable.
10.6 In case of termination of the Agreement, upon first request by FMTC, Customer must return all FMTC materials to FMTC, at Customer’s own costs and expense. If the FMTC materials are damaged, reasonable wear and tear expected, FMTC may charge and invoice Customer for such damages, which Customer must pay within five (5) business days of the date of the invoice.
11 Non-compete and Non-sollicitation
For the term of the Agreement and for five years thereafter, Customer and its affiliates, including shareholders, officers, directors, representatives and subsidiaries, shall not directly or indirectly engage in business that competes with the business of FMTC. For the term of this Agreement and for one year thereafter, the Parties shall not solicit or induce any person who was employed by the other Party or the other Party’s affiliates during the term of this Agreement, to leave such Party.
12 Limitation of Warranty
12.1 FMTC PROVIDES THE SERVICES AND THE FMTC WEBSITE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, TRAINING AND COURSE MATERIALS, “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FMTC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR (1) THE CURRENCY, ACCURACY, OR COMPLETENESS OF ANY INFORMATION AVAILABLE BY MEANS OF THE SERVICES, (2) FOR ANY INFORMATION PROVIDED BY THIRD PARTIES AND ACCESSIBLE ON OR THROUGH THE SERVICES OR THE FMTC WEBSITE, (3) FOR ANY “VIRUSES” OR MALICIOUS COMPUTER CODE TRANSMITTED ON OR THROUGH THE SERVICES OR FMTC WEBSITE, (4) FOR ANY BREACH OF SECURITY OR UNAUTHORIZED ACCESS TO CUSTOMER INFORMATION. FMTC FURTHER DOES NOT REPRESENT OR WARRANT THAT THE FMTC SERVICES AND/OR THE FMTC WEBSITE WILL ALWAYS BE SECURE, UNINTERRUPTED, TIMELY, ACCURATE, COMPLETE, ERROR-FREE OR FREE FROM VIRUSES. NOR DOES FMTC WARRANT ANY QUALITY OR CERFICATION OF THE SERVICES, UNLESS SPECIFICALLY AGREED UPON IN WRITING BY THE PARTIES.
12.2 FMTC IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE SOFTWARE AND/OR SERVICES.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FMTC, ITS LICENSORS, THIRD PARTY SUPPLIERS, AND AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SERVICES WHETHER EXPRESS, IMPLIED OR STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, NONINFRINGEMENT, COMPATIBILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FMTC OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.
13 Liability, Limitation of Damages and Indemnification
13.1 FMTC DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE ACTS AND OMISSIONS OF CUSTOMER’S USERS OF THE SERVICES OR THE FMTC WEBSITE. NEITHER FMTC NOR ITS OFFICERS OR EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING OR RELATING TO ALL SUCH ACTS AND OMISSIONS.
13.2 IN NO EVENT SHALL FMTC, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
13.3 NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, FMTC’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE TOTAL PAID BY CUSTOMER TO FMTC DURING THE TWELVE (12) MONTH PERIOD, IMMEDIATELY PRECEDING THE DATE THE DAMAGES FIRST OCCURRED. 13.4 THE LIMITATIONS ON FMTC’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT FMTC, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
14.1 CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD FMTC, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE SERVICES BY CUSTOMER OR ITS USERS, OR BREACH OF THIS AGREEMENT, BY CUSTOMER OR ITS USERS, UNLESS THE CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, ARE THE DIRECT RESULT OF FMTC’S GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR FRAUD.
14.2 CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD FMTC, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND THREATENED CLAIMS BY ANY THIRD PARTY, INCLUDING EMPLOYEES OF CUSTOMER ARISING OUT OF, UNDER OR IN CONNECTION WITH (1) THE DEATH OR BODILY INJURY OF ANY THIRD PARTY, INCLUDING ANY AGENT, EMPLOYEE, CUSTOMER, BUSINESS INVITEE OR BUSINESS VISITOR OF CUSTOMER, OR, (2) THE DAMAGE, LOSS OR DESTRIBUTION OF ANY TANGIBLE PERSONAL OR REAL PROPERTY AT CUSTOMER’S PREMISES, BOTH ONLY TO THE EXTENT THAT SUCH WAS NOT A RESULT OF GROSS NEGLIGENCE, WILFULL MISCONDUCT, OR FRAUD, BY FMTC OR ITS PERSONNEL.
FMTC and Customer shall pay all necessary costs to maintain sufficient insurance policies to cover its personnel and premises for activities contemplated by or performed in connection with the Services.
If any provision of these Terms, the Agreement or any other agreement between the Parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
17 Force Majeure
FMTC will not be liable for any delay in performing or failure to perform any of its obligations under these Terms or the Agreement caused by events beyond its reasonable control. FMTC will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. FMTC is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
19 Entire Agreement
The Agreement and these Terms contain the entire agreement between FMTC and Customer regarding Customer’s purchase of Services, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
20 No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or these Terms or by law shall not constitute a waiver of that right, power or remedy. If FMTC waives a breach of any provision of these Terms or the Agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
21 No Beneficiaries
Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.
22 No Partnership
Nothing contained in any agreement between the Parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the Parties. Neither of the Parties may pledge or purport to pledge the credit of the other Party or make or purport to make any representations, warranties, or undertakings for the other Party.
23 Injunctive Relief
Customer acknowledges that FMTC shall suffer irreparable injury in case of breach of the obligations under Articles 7, 8, 9, and 11. Accordingly, in the event of such breach, Customer acknowledges that FMTC will be entitled to injunctive relief in any state or federal court of competent jurisdiction within the State of New York. Customer further submits to the personal jurisdiction of such courts for the purposes of any such action.
24 Governing Law and Arbitration
Unless stated otherwise in writing, any and all agreements between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes and controversies arising out of or relating to these Terms or the relationship of the Parties shall be finally and bindingly resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. ANY CAUSE OF ACTION AGAINST FMTC, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.