IT IS AGREED that:-
A.
These YDSA Surveyor’s
Terms of Business (March 2010) shall form part of the Agreement between the
Surveyor and the Client; and
B.
The Surveyor
shall perform the Scope of Work as set out in the Agreement subject to the
following terms:
1.
Services
1.1
The
Surveyor shall undertake the services to which these terms relate with
reasonable care, skill and diligence.
1.2
The
Client’s instructions and the scope of the Surveyor’s services hereunder, are
as defined in the Scope of Work. Any
subsequent changes or additions to the Scope of Work must be agreed in writing
by the Parties.
1.3
The
Client undertakes to:
1.3.1 ensure that full instructions are
given to the Surveyor and are provided in sufficient time to enable the
required services to be performed effectively and efficiently. The Client agrees to disclose to the Surveyor
all relevant information of which they have knowledge, or to which they have
access, in relation to the Vessel to be surveyed;
1.3.2 in consultation with the Surveyor,
procure all necessary access to premises and vessels (including lift-out,
trials and facility for inspection ashore and afloat as appropriate) for no
less than such a time as shall in each particular circumstance be reasonable to
enable all appropriate inspections and tests to be undertaken or performed; and
1.3.3 ensure that all appropriate safety
measures are taken to provide safe and secure working conditions provided
always that in the event of any breach of the requirements of Clauses 1.3.1 to
1.3.3 causing any failure on the Surveyor’s part to undertake the Scope of Work
the Client shall be responsible for all consequential costs incurred by the
Surveyor and in respect of any element of the Scope of Work undertaken.
1.4
Pursuant
to the Scope of Work, the Surveyor will inspect the Vessel as thoroughly as is
practicable and endeavour to comment on the more important items where, in the
Surveyor’s reasonable opinion, major costs consequences are considered likely to
arise. It follows that the Surveyor
cannot comment on every minor matter but the Surveyor will try to point out
where small factors may become more serious.
1.5
The
Surveyor’s intention is to report on the condition of the hull(s),
superstructure and fixtures (if any) of the Vessel so far as can reasonably be
ascertained from a visual inspection of the Vessel at its location at the time
of survey. The Client accepts that the
Surveyor’s survey report(s) cannot cover hidden, unexposed or inaccessible
areas of the Vessel, neither can the Surveyor undertake to investigate areas
that the Surveyor believes to be inaccessible at the time of inspection. Where the Surveyor is unable to gain access
to areas commonly accessible, the Surveyor will endeavour to point this out.
1.6
In
every case, the Surveyor recommends a full survey of a Vessel, to include
inspection of the Vessel while lifted out and while in the water. Where the Surveyor accepts instructions to
survey a Vessel solely on the basis of an inspection of the Vessel out of the
water, the Surveyor makes no representation and gives no warranty as to the
watertight integrity or buoyancy of the Vessel.
2. Valuations
2.1 All valuation work undertaken shall be
in accordance with the Scope of Work and, unless otherwise stated in writing,
such work relates solely to the date and place referred to. Valuations are based on opinions only and are
not representations of fact, nor do they carry with them any guarantee of the
particulars or information on which opinions are based. Valuations assume a willing buyer and willing
seller and market conditions applicable at the time of valuation or such other
date as is expressly referred to.
3. Fees
3.1 The
fee agreed between the Surveyor and the Client for the services to be provided
by the Surveyor under this Agreement (“the Survey Fee”) shall not include the
costs of travel, subsistence and accommodation which will be charged in
addition and in accordance with this Clause 3.
3.2 The
Survey Fee and all expenses shall become due and payable on such terms and in
such amounts as shall be agreed from time to time. VAT or other EU equivalent shall be payable,
if applicable, in addition to all fees and expenses. Invoices will be submitted in respect of all
fees and expenses when due and the amount of each invoice shall be settled
within 28 days of the date of the invoice.
Thereafter, interest shall be payable on all sums owing and unpaid at a
rate of 7% over the European Central Bank base rate.
4. Limitations
4.1 The
Surveyor shall not be liable under this Agreement for any loss or damage caused
in circumstances (i) where there is no breach of a legal duty of care owed to
the Client by the Surveyor or (ii) where, notwithstanding any such breach, any
loss or damage is not a reasonably foreseeable result of such breach.
4.2 All
services and reports are provided for the Client’s use only. No liability of any nature is assumed towards
any other party and nothing in these terms, or the relationship between the
Surveyor and the Client, shall confer or purport to confer on any third party a
benefit or the right to enforce any provision of these terms. The provisions of the Contracts (Rights of
Third Parties) Act 1999 shall not apply to this Agreement and any person who is
not a party to this Agreement shall have no right under that Act to enforce any
term(s) of this Agreement.
4.3 The
Surveyor shall not be responsible for loss or damage or any increase in loss or
damage resulting from any material breach by the Client of any term of this Agreement.
4.4 Any
claim by the Client in respect of any breach of the Surveyor’s obligations
under this Agreement must be notified to the Surveyor as soon as is reasonably
practicable after the Client becomes aware of the breach. Where any breach is capable of remedy, the
Surveyor must be afforded a reasonable opportunity to put matters right at his
expense.
4.5 The Client agrees that, for reasons of
commercial practicality, it is necessary to limit the Surveyor’s potential
liability in respect of loss or damage suffered by the Client as a result of
any breach by the Surveyor of any of the Surveyor’s obligations under this
Agreement. As such, the Client agrees
that no liability howsoever arising whether
under this Agreement or otherwise shall attach to the Surveyor except insofar
as such liability is covered by the professional indemnity insurance referred
to at paragraph 4.6 and such liability (including Claims Expenses) shall in any
event be limited to £250,000 or such higher sum as the parties shall agree in
writing prior to commencement of the services to which these terms relate
(hereafter referred to as “the Agreed Indemnity Limit”).
4.6 The Surveyor shall maintain professional
indemnity insurance in the amount of the Agreed Indemnity Limit throughout the
period of the performance of the Surveyor’s duties hereunder provided that such
insurance shall remain available at reasonable market rates.
4.7 The
Surveyor’s liability shall not extend to particulars, data and other
information given to the Surveyor by others or obtained from outside sources,
publications and the like reasonably relied upon by the Surveyor, including
Class records, registry details or other such information and no assurances can
be given regarding the accuracy of the same.
4.8 Unless
otherwise stated in writing, all services and reports are provided on the basis
that they carry no guarantee regarding ownership or title, freedom from
mortgages or charges, debts, liens or other encumbrances, or vessel stability,
performance or design.
4.9 The
Client shall be responsible for any losses, expenses or other costs reasonably
incurred by the Surveyor that are caused by a breach of the Client’s
obligations to the Surveyor hereunder.
4.10 The Surveyor shall not be liable in respect of any breach of
his obligations hereunder resulting from unforeseeable causes beyond the
Surveyor’s reasonable control
Business
or Commercial Operations
4.11 Notwithstanding any other provision of this Agreement, where
the Client is acting in the course of a business or commercial operation:
4.11.1 the Surveyor’s liability shall expire twelve
months after the Survey Report is delivered to the Client and The Surveyor
shall thereafter have no further liability whether in contract, tort or
otherwise; and
4.11.2 the Surveyor shall have no liability whether
in contract, tort or otherwise for:
4.11.2.1 any consequential or economic loss or for
loss of profit or turnover or loss of use suffered by the Client howsoever
arising, whether under this Agreement or otherwise, and without prejudice to
the generality of the foregoing the Surveyor shall not be liable for any
consequences of late performance of any survey and/or late delivery of any
survey report;
4.11.2.2 any breach of his obligations hereunder of which written
notification shall not have been given within 14 days of the date on which the
Client ought reasonably to have become aware of the existence of such breach;
4.11.2.3 any loss, injury or damage sustained as a
result of:
i. any defect in any material or workmanship;
ii. an Act of God or other
circumstances beyond the control of the Surveyor; or
iii. the act, omission or insolvency of
any person other than the Surveyor;
and
the Surveyor shall have no liability to indemnify the Client in respect of any
claim made against the Client for any such loss, injury or damage;
4.12 Notwithstanding any other provision of this Agreement:
4.12.1 unless otherwise stated in writing, no
guarantee is given against faulty design, latent defects or of suitability of
any vessel or other item for any particular purpose or of compliance with any
particular local, national or international requirement or code, and opinions
are given without the benefit of running of machinery or opening up or other
dismantling whether of interior linings, machinery or other items or systems;
4.12.2 the Surveyor shall have no liability whether in contract, tort or
otherwise in respect of the consequences of late, incomplete, inadequate,
inaccurate or ambiguous instructions or the non-disclosure by the Client of
relevant information.
5 Law and disputes
5.1 This
Agreement shall be construed in accordance with and shall be governed by
English law. All disputes arising out of
or in connection with this Agreement shall be submitted to the exclusive
jurisdiction of the Courts of England and Wales.
6. Miscellaneous
6.1 The Surveyor may terminate the
appointment forthwith if the Client fails for more than 28 days to pay any sum
due when demanded, or if the Client fails to respond promptly to requests for
information and/or instructions and fails adequately to respond to 28 days’
formal notice of such failure, without prejudice to the Surveyor’s accrued
rights.
6.2 Without
prejudice to the accrued rights of the other party, either party may terminate
the appointment forthwith by notice if the other party shall become bankrupt or
insolvent, or make any arrangement or composition for the benefit of creditors,
or have anything analogous to any of the foregoing under the laws of any
jurisdiction occur to it, or cease (or threaten to cease) to carry on business.
6.3 No
exercise or failure to exercise or delay in exercising any right or remedy
vested in either party shall be deemed to be a waiver by that party of that or
any other right or remedy.
6.4 Neither
party shall transfer or assign its rights or obligations under these terms
without the prior written consent of the other.
6.5 In the
event that any provision of these terms is held to be a violation of any
applicable law, statute or regulation, such provision shall be deemed to be
deleted from these terms and shall be of no force or effect and these terms
shall remain in full force and effect as if such provision had not been
contained herein. Notwithstanding this,
in the event of any such deletion the Parties shall negotiate in good faith in
order to agree the terms of an acceptable alternative provision.
6.6 Except
where expressly stated to the contrary in a written document signed by the
Parties on or after the date hereof, these terms form the entire agreement
between the Parties and supersede all previous agreements and understandings
between the Parties, and no warranty, condition, description, term or
representation is given or to be implied by anything said or written in
negotiations between the Parties or their representatives prior to the
communication of these terms.
6.7 References
to “the Surveyor” include the Surveyor’s employees and persons, firms and
companies appointed or engaged by the Surveyor as the Surveyor’s agents for
carrying out any work or services under these terms, all persons, firms and
companies to whom performance of any work or services under these terms is
sub-contracted or delegated by the Surveyor, and all agents and employees of
persons, firms and companies referred to in this clause.
6.8 Any
communication required to be given under these terms by either party shall be
in writing and shall be sufficiently given either by letter, fax or electronic
mail (provided the same is capable of being recorded by the recipient in
durable form) sent to the other at the contact details previously notified and
any such notice shall be deemed to have been given at the time at which it
would in the ordinary course of transmission have been received.
6.9 Each
party undertakes to maintain the confidentiality of all information supplied by
the other and not to divulge such information to third parties without the
prior written authority of the other.
6.10 Words
denoting the masculine include the feminine and neuter and vice versa.
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