India: CCI Closes Case Of Abuse Of Dominance Against ONGC -Accepts Objective Justification As A Valid Defence In One Sided Contract

Last Updated: 7 November 2019

Article by MM Sharma, Head Competition Law & Policy Practice, Vaish Associates, Advocates, New Delhi, India

By way of order dated 02.08.2019, the Competition Commission of India ("CCI/Commission") has closed allegations of abuse of dominant position by Oil and Natural Gas Corporation Limited ("ONGC") in the market for charter hire of Offshore Support Vehicles (OSVs) in the Indian Exclusive Economic Zone (EEZ), after a thorough investigation by the Director General (DG) .

Background and allegations

In order to undertake Oil and Natural Gas (O&NG) Exploration and Production (E&P) activities, ONGC seeks support services from offshore oilfield services providers by way of a competitive bidding process. One of these services is the charter-hire of OSVs which are specialized vessels that support various stages of offshore O&NG E&P activities. The two types of OSVs which are predominantly used in the Indian EEZ are:

(i) Anchor Handling Tug Supply Vessel (AHTSV) – designed to tow rig anchors from one location to another and to lift and position rig's anchors;

(ii) Platform Supply Vessels (PSV) – to carry out supply duties and transit of manpower, fuel, fresh water, tools and materials to offshore drilling locations.

For procurement of the services of the OSVs, ONGC floats International Competitive Bidding (IBC) tenders which contained a model contract comprising of General Conditions of Contract ("GCC") and Special Conditions of Contract ("SCC") collectively referred to as the Charter Hire Agreement ("CHA").

The information was filed by Indian National Ship-owner's Association ("INSA/Informant") comprising of 42 member including companies providing OSV services alleging that the terms of the CHA, which governs the contractual relationship between ONGC and the successful bidder, are one sided, onerous in nature and favorable to ONGC.

INSA had alleged the following clauses to be one side, unfair and ,therefore ,abusive:

(a) Clause 14.2 of the SCC- Unilateral right to terminate the agreement;

(b) Clause 18.2 and 23 of GCC- Unilateral termination in case of force majeure;

(c) Clause 27.1.2 and 27.1.4 of the GCC- Onerous clauses in relation to appointment of arbitrator

INSA also alleged that ONGC had issued termination notices for few contracts with its member companies which was indicative of abuse on its part owing to the dominant position held by it.

CCI prima facie Order

The CCI prima facie found ONGC to be dominant in the market for charter hire of OSVs (PSV and AHTSV) in the Indian EEZ. CCI was also of the opinion that the unilateral right of termination (Clause 14.2 of the SCC) as well its invocation by ONGC against some of the member companies of INSA prima facie appeared to be abusive in nature. However, as per the CCI, allegations pertaining to unilateral termination in case of force majeure and alleged onerous clauses in relation to appointment of arbitrator did not appear to be abusive. Accordingly, the Commission directed the DG to investigate whether the unilateral right of termination (Clause 14.2 of the SCC) as well its invocation by ONGC against some of the member companies of INSA amounts to abuse of dominance.

DG Investigation

Relevant Market

DG observed that the physical characteristics/end-use of OSVs demonstrated that the relevant product comprises of specialized vessels used for performing specific tasks to support offshore O&NG E&P activities, which in the present case pertains to two specific OSVs, namely AHTSV and PSV.

DG analyzed the use of such vessels across the globe and found that OSV deployment is directly linked to offshore E&P activity which is determined by oil prices. If oil prices are high, then demand for OSVs is stimulated and as prices decline, the E&P activities also decline, which led to idling of OSVs. The DG, accordingly inferred that had there been significant alternative employment opportunities for these specific OSV owners, they could have moved away from the E&P activity rather than idling their vessels, showing absence of an alternative market scenario. The DG found that as of November, 2018, nearly 30% of global OSV fleet was either idle or cold-stacked.

On the basis of consumer preference, the DG observed that the OSVs under question in the present case (i.e. PSVs and AHTSVs) are different from other types of vessels. The DG noted that OSVs have been defined to include PSVs and AHTSVs which constitutes about 46% of global offshore fleet, with other OSVs comprising the remaining 54%. However, in the Indian offshore market, the share of vessels other than OSVs (PSVs and AHTSVs) is 31%, and accordingly the DG observed, that though there are other types of OSVs in the Indian EEZ, mainly AHTSVs and PSVs are used. The DG further observed that all vessels are designed and are equipped to perform specific functions, and it is not operationally and commercially viable to utilize one type of OSV to perform the task of another type of OSV. Considering the distinct physical characteristics and end-use, the DG delineated the relevant product market as the "market for charter hire of OSVs (specifically PSVs and AHTSVs)".

As regards the relevant geographic market, the DG noted that the O&NG industry operated under a highly regulated environment comprising various laws and regulations. It was observed that the National Exploration Licensing Policy (NELP) had been designed by the Government of India (GoI) in exercise of its sovereign rights of exploiting its natural resources in its EEZ. The Merchant Shipping Act, 1958, regulates all vessels registered in India as well as foreign flag vessels operating in the Indian EEZ and such Indian flag vessels are required to be registered in India with the Mercantile Marine Department (MMD) and fall within the regulatory purview of the DG-Shipping. As per the DG, these regulatory trade barriers coupled with national procurement policies make the Indian EEZ a distinct geographic market, and therefore, the relevant geographic market was taken as "the Indian EEZ". Thus the DG defined the relevant market as the " market for charter hire of OSVs (specifically PSVs and AHTSVs) within Indian EEZ"

Dominance

The DG observed that ONGC is the largest producer of crude oil and natural gas in India, contributing almost 70% to India's domestic production of oil. DG also observed that ONGC had chartered/operated, approximately 80% of the offshore drilling rigs in the Indian EEZ.

Further, as on 01.01.2018, 45 out of the 48 contractually committed/operational offshore drilling rigs in the Indian EEZ were being chartered/operated by ONGC. As on 11.01.2018, there were 84 contractually committed/operational OSVs in India, out of which 69 were chartered by ONGC amounting to a market share of 82% in the market for charter hire of OSVs in the Indian EEZ.

In terms of size and resources, the combined group turnover of ONGC for the year 2016- 2017 was found to be INR 1,42,149 crore and the standalone profit was INR 17,900 crore.

The DG also discovered that 65 AHTSV vessels (as on 06.12.2018) were employed in the Indian OSV market by ONGC amounting to 63.1% of the market share, the remaining being hired by other E&P companies, namely Cairn Energy, British Gas, Reliance Industries and Gujarat State Petroleum Corporation. In case of PSVs, OP employed 31 out of the total 34 vessels that were hired, which accounted for 91.2% market share in 2018.

The DG further observed that in respect of economic power and commercial advantages enjoyed by an enterprise, ONGC being a PSU had a first-mover advantage which consequently led to winning of blocks and a position of dominance in the upstream market. Also, the presence of ONGC in all stages of the value chain in the E&P industry attributed to its strength in the market and brought along significant market power.

The DG also applied the Small but Significant Non Transitory Increase in Price (SSNIP) test and based on the instances of renegotiations of charter hire rates among ONGC and OSVs suppliers in May 2016, August, 2016 and May, 2017, the DG observed that the outcome of SSNIP test showed that ONGC was a hypothetical monopolist as OSV owners could not relocate to other markets/alternatives despite severe/significant downward adjustment in charter hire rates of such vessels. Thus, the DG was of the view that OSVs (specifically PSVs and AHTSVs) constitute the relevant product market in accordance with the economics of competition law. The DG also undertook Herfindahl Hirschman Index (HHI), a measure of market concentration analysis, which showed that market was highly concentrated.

Accordingly, DG concluded that the ONGC held a dominant position in the market for charter hire of OSVs (PSVs and AHTSVs) in the Indian EEZ.

Abuse of Dominant Position

The DG initiated his investigation by identifying the circumstances under which 'termination for convenience' i.e. a clause which allows termination without providing any cause or reason could be considered exploitative. The DG examined the legal position in USA, UK and India.

The DG noted that in USA, earlier the USA federal case law allowed the government to terminate the contract to get a better price as held in Colonial Metal Co. v. United States1 , however, this decision was widely criticized and subsequently overturned. Subsequently, the test laid down in Krygoski Construction Co. v United States2 was that termination for convenience is generally allowed except when exercised in good faith. This doctrine of 'good faith' was further developed in the case Quester Builders Inc. v CB Flouring LLC3 in which it was held that the right to terminate a contract for convenience is a risk allocating tool. Therefore, in some cases, a change in circumstances may not be enough to justify termination for convenience, unless the termination clause is exercised in good faith.

As regards UK, the DG observed that under the English contract law, there is not general doctrine of good faith and the contracts can be terminated for convenience without the implication of duty to demonstrate good faith unless the contract specifically provides for such duty.

The DG also approached the competition authorities in UK, Europe and USA on whether the usage of termination for convenience amounts to abuse as per their respective laws or not. The DG was informed that USA does not have a provision of exploitative abuse and the UK and Europe's competition authority had never examined the 'Termination of Convenience Clause' of a contract as a case of abuse of dominance.

As regards the position in India, the DG noted that the Supreme Court in Central Inland Water Transport Corporation Ltd & Anr. V. Brojo Nath Ganguly & Anr.4, based on legal precedents, observed that for a termination clause without a cause to be valid, fair and reasonable, the bargaining power of both the parties should be at par. The DG also referred to the Specific Relief Act, 1963 and observed that the contracts which allow termination without reason are essentially determinable contracts, the specific performance of which cannot be granted and the only option with the aggrieved party in such a case is to claim damages for wrongful termination, if any.

Pursuant to the analysis undertaken, the DG observed that ONGC may exercise its express contractual right to terminate the contract irrespective of its reasons for doing so as long as it had complied with the contractual requirement of issuing a notice of termination as provided under the CHA. The DG also examined whether ONGC had acted in good faith while invoking the termination clause and observed that the price of crude oil had started declining form 2014, however, instead of immediately terminating the contracts, ONGC waited for a reasonable time for the market to stabilize. The DG also acknowledged the comments by Comptroller and Auditor General of India (CAG) in 2014-15 for ONGC not taking advantage of the changed demand-supply situation of the OSVs and continuing the existing contracts at a significantly higher charter day rates. The DG, therefore, observed that ONGC had exercised its right to issue termination notice in good faith owing to the prevalent market condition due to fall in crude oil prices and ONGC was justified in terminating the contracts to prevent itself from incurring further losses.

Apart from this, the DG also opined that issue raised by INSA was purely contractual in nature, and since the CHA was a private contract, the legal relationship between the OSV Providers and ONGC shall be governed by the terms of the contract and not the Competition Act, 2002 ("the Act").

CCI Analysis

Preliminary Issue

CCI observed that ONGC, basing its reliance on the DG's observation, had contended that the dispute is contractual in nature and is devoid of any competition concern, and therefore, CCI doesn't have jurisdiction. To this, the CCI observed that although ONGC and OSV providers have existing CHA's and the conduct of the parties will be governed by the terms and conditions contained therein, however, it does not ipso facto exclude the applicability of the Act and to conclude otherwise would mean that every case where the parties have some agreement between themselves, it will immune them from the applicability of the Act, which cannot be the case. The Commission observed that the present case is not one that involves only a lis between two parties to an agreement flowing from a breach thereof and the grievance of INSA is not that ONGC had breached the terms of CHA. On the contrary, the grievance is that ONGC, owing to its dominant position, secured certain terms and conditions in the CHA which favored it at the expense of OSVs. The Commission, therefore, held that it will be well within the jurisdiction to test the tenor of the clauses of the contract, the nature and position of the parties when such contract was entered into and at the time when the allegations of abuse are made, the special circumstances, if any, surrounding the execution of the contract, and the effect of the clauses when put in operation, to see whether it emanates from the diktat of a dominant enterprise.

Relevant Market

CCI agreed with the finding of the DG that OSVs under question in the present case (i.e. PSVs and AHTSVs) are different from other types of vessels based on the nature of services rendered by them in offshore O&NG E&P activities on account of their different technical make-up, functionality and end-use and considering the distinct physical characteristics and end-use, the Commission agreed with the relevant product market delineated by the DG i.e. "market for charter hire of OSVs (specifically PSVs and AHTSVs)" in the Indian EEZ."

Dominance

The Commission noted that ONGC operates 45 out of 48 contractually committed/operational offshore drilling rigs in the Indian EEZ and therefore had a market share of 82% in the market for charter hire of OSVs (61% market share in AHTSV and 73% in PSVs). Apart from this, ONGC had a first mover advantage before the advent of New Exploration License Policy (NELP) in 1997 and its only competitor prior to it was Oil India Limited (OIL). The CCI noted that ONGC had won 121 out of 235 blocks in the 8 rounds of bidding under the NELP policy which indicated significant position held by ONGC in the upstream market for E&P activities and consequently charter hires the highest number of OSVs in the Indian EEZ. Further, ONGC is present at all stages of the value chain in E&P industry and there is no countervailing seller power with the OSV providers as the number of OSVs hired by an enterprise is directly proportional to the scale of its operations with 80% of the offshore drillings rigs in Indian EEZ are operated by ONGC. Accordingly, CCI found ONGC to be dominant in the relevant market for charter higher of OSVs (specifically PSVs and AHTSVs) in the Indian EEZ.

Abuse of Dominance

CCI observed that ONGC's conduct had to be examined on two counts- (i) existence of Clause 14.2 of SCC itself which gives an unfettered right of unilateral 'termination for convenience' to ONGC and (ii) the use of this clause by ONGC to terminate its contracts with the OSVs in 2016.

Existence of 'termination for convenience' clause

CCI observed that the DG had found ONGC' conduct not to be in contravention of the provisions of Section 4 (2) (a) (1) of the Act primarily due to the existence of objective justification owing to 'change in circumstances' and also because the invoking of the impugned Clause 14.2 was found to be exercised in 'good faith'. The informant had contended that the defense of objective justification is not envisaged under the Scheme of Section 4 of the Act, especially for allegations pertaining to unfair terms/conditions.

The Commission observed that Section 4(2)(a)(i) of the Act primarily covers exploitative conduct within its ambit and the examination of exploitative conduct which involves imposition of unfair condition by a dominant enterprise in a B2B transaction shall undertake a fairness or reasonability test which requires examining both (i) how the condition affects the trading partners of the dominant enterprise and (ii) whether there is any legitimate and objective necessity for the enterprise to impose such condition.

Upon examining the legal position in UK, USA and India, the Commission observed that a provision of termination for convenience itself is not uncommon and should not generally be construed as unfair or abusive unless it is specifically used in an unfair manner without meeting the legal tests of 'good faith' and 'change in circumstances'. The Commission observed that in the instant case, the termination of convenience clause only entitles ONGC to terminate the contract without assigning any reason while no such right is provided to the OSVs. The Commission acknowledged that any such one sided clause, being contrary to the legal principle of mutuality of contract, appears unfair, however, the feasibility and desirability of a reciprocal right will depend on where the balance of convenience lies on account of associated risks of the Parties to the agreement in terms of their respective business.

The Commission noted that ONGC had highlighted various risks which it is exposed to being in the E&P operations. ONGC not only bears the geological risk, i.e. the difficulty of extraction and the possibility that accessible reserves in any deposit will be smaller than estimated, but also the uncertainty of the worldwide price of crude oil which continuously determines the commencement and continuity of projects. The kind of projects being carried out by E&P companies cannot be shut down immediately and then restarted easily. On top of this, being governed by the government procurement rules, ONGC is required to follow an elaborate process of tendering, which means a long lead-time for hiring of vessels. At any given time, ONGC has a requirement of certain number of OSVs, which are indispensable to its E&P activities and if a contract is terminated at the behest of the OSV providers for their convenience, ONGC would have to re-issue a tender and pending its completion, the project would come to a standstill resulting in huge losses to ONGC, which will have implications for overall E&P activities in India as well.

Accordingly, the CCI observed that, keeping in mind the risks associated with the operations being carried out by ONGC, the mere existence of a unilateral right of termination for convenience does not amount to contravention of Section 4(2)(a)(i) of the Act.

Use of 'termination of convenience clause' by ONGC

The Commission noted that crude oil prices have a major impact on E&P activity and fall in such prices adversely impact the on-going E&P projects. The Commission observed that crude oil prices started falling drastically from mid-2014, from over 100 USD/barrel by January 2016, which affected the Oil E&P companies worldwide, pursuant to which, these companies reduced the rig counts since it was not economically viable to operate high cost rigs. Resultantly, there was excess supply of OSVs which was reflected in the significantly lower charter fare bid in the new tender floated by ONGC in 2016. The Commission observed that the price of oil fell drastically from over 100 USD/ barrel during mid-2014 to under 30 USD/barrel in January 2016. In April 2016, ONGC issued de-hiring notice to 27 vessels. The Commission observed that ONGC had invoked termination for convenience clause for the first time and it was evidently in response to the changing dynamics in the global oil market and consequently in the market for OSVs.

The Commission also took note of the record of discussions of Executive Procurement Committee (EPC) held on 25.05.2016 which revealed that the intent behind the terminations was to take advantage of the prevailing market situation and hire vessels at current market rates, which were substantially lower than the contracted rates. This intent was more evident from the fact that barring three vessels of Shipping Corporation of India Limited (member of INSA), the contracts were finally not terminated with the OSVs and only the prices were negotiated and brought down. CCI noted that the termination acted as more of a re-negotiation tool for bringing down the pre-determined contract prices in alignment with the prevalent prices.

CCI also acknowledged the fact that ONGC did not issue termination notices at the first instance of reduction in oil prices i.e. 2014, but, it waited for a reasonable time and until the expiry of the period mentioned in Clause 14.2. Also, the said clause was invoked for the first time that too in an unprecedented and exceptional situation, though the said clause had existed for 30 years.

CCI held that ONGC's conduct was not motivated by any malice or with an intention to injure any particular OSV or OSVs in a discriminatory manner and being an enterprise governed by government regulations, the potential consequence of continuing with contract at substantially higher rates cannot be overlooked. Accordingly, the CCI held that there was an objective necessity to bring down the costs in new market circumstances and the termination was driven solely by that necessity and obligation.

In conclusion, the CCI held that the existence of 'termination of convenience clause' and the use of the said clause by ONGC was not in violation of Section 4 of the Act.

Pertinently, towards the end of the order, the CCI noted that if ONGC had invoked the said clause in a capricious manner and/or frequently in order to make illegitimate gains at the expense of the other contracting party, the Commission may have looked at the case differently.

COMMENT: This case illustrates acceptance of "objective justification" as a valid defence for apparently one-sided clauses imposed by dominant buyer on sellers provided that the exercise of discretion vested under such clause is made bona fide .

Note: This article first appeared on the Antitrust & Competition Law Blog

On 02 October 2019 .

Footnotes

1 494 F.2d 1355 (Fed. Cir. 1974)

2 94 F. 3d 1537 (Fed. Cir. 1996)

3 978 A. 2d 651 (Md. Ct. App. 2009)

4 1986 AIR 1571

Specific Questions relating to this article should be addressed directly to the author.

© 2019, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions