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Terms and Conditions
Tolhurst Associates – Trading name of Skipper (UK) Ltd company registered in England no: 03099550 - Vat Reg no: 665 254228 – Address: Tolhurst Associates, Beacon Boatyard, Manor Lane, Borstal, Rochester, Kent, ME1 3JN
The Company, firm or person with whom the agreement is made.
The Agreement: The Agreement between The Survey Company and The Company constituted by the attached survey contract letter of instruction and or invoice and incorporating inter alia these terms and conditions.
Scope of work: The nature of the survey that will be conducted upon receipt of instructions given by, but not limited to, letter, fax, electronic mail, telephone.
Neither party shall transfer or assign its rights or obligations under The Agreement without the prior written consent of the other party, provided that:
The Company may transfer any or all of its rights under The Agreement to any of its affiliate companies in which case The Company shall procure the acceptance by the assignee of the terms, conditions, exceptions and exemptions of The Agreement.
If The Survey Company considers it more efficient or convenient, The Survey Company may in its discretion procure advice, assistance and services, which it renders under The Agreement, from other persons and may in its discretion delegate performance of one or more of its obligations under The Agreement.
a) If any payments to be made under The Agreement shall be subject now or in the future to taxes, levies or charges of whatever kind in the country in which The Company is incorporated and / or operating and which The Company or The Survey Company is required to withhold, The Company shall pay such sums as shall yield to The Survey Company after payment or withholding of such taxes / levies or charges the full amounts payable to The Survey Company under The Agreement as if such taxes, levies or other charges were not paid or withheld.
b) Private / individual survey inspection details cannot be discussed until receipt of payment. Reports cannot be released until payment is received.
c) Payment shall be made upon receipt of invoice. Or in the case of private / individual surveys once the initial inspection has taken place.
d) Any payments overdue by The Company shall bear compound interest from the due date until payment at a rate of two per cent per week.
e) Except when there are self-evident errors in the invoice, payment shall be made in the interest of either party not withstanding any disputes, within thirty days following agreement of settlement.
f) Where any payment becomes overdue by more than one month from date of invoice, The Survey Company shall without prejudice to any of its other rights, be entitled to terminate this agreement, whereupon payment will become due for the value of work done up to the date of termination.
5. Liability and Indemnity
a). All services and reports are provided for the named company’s use only. No liability of whatever nature is assumed towards any other party and nothing in these terms, or the relationship between us and the company, shall confer of purport to confer on any third party a benefit or the right to enforce a provision of these terms. The provisions of the contracts Act 1999 shall not apply to the Agreement and any person who is not a party to the agreement shall have no right under the Act to enforce any term(s) of the Agreement.
b) The Survey Company shall perform The Agreement with all proper skills in accordance with normal industry standards.
c) If any work or services under The Agreement are negligently performed or omitted so far as may be reasonably practicable The Survey Company at its own expense will cause such work and services to be correctly performed.
d) our liability shall not extend to particulars, data and other information given to us by others or obtained from outside sources, publications and the like reasonably relied upon by us, including but not restricted to class records, registry details or other such information and no assurances can be given regarding the accuracy of the same.
e) 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, of vessel stability, performance or design.
f) In this clause 5 Delegate(s) means (i) employees and agents of The Survey Company (ii) any person to whom performance of work or service under The Agreement is delegated or sub-contracted by The Survey Company and (iii) any such person’s employees and agents.
g) The Company shall not sue and Delegate for any loss or damage of any nature whatsoever suffered by The Company and connected with performance of The Agreement. The Company’s sole remedy shall be against The Survey Company under this clause 5.
h) The total liability of The Survey Company to The Company for breach of The Agreement and the total third party liability of The Company and Delegates shall not for any reason whatsoever (including negligence) in aggregate over the duration of The Agreement exceed an amount equal to one times the total fees paid and payable by The Company to The Survey Company.
i) If The Survey Company or any Delegates does incur third party liability of any nature whatsoever arising out of or connected with performance of The Agreement then (subject to clause 5(j) below) The Company shall indemnify The Survey Company, or such Delegate against such third party liability and costs and expenses relating thereto, and this indemnity shall apply even if the third party claim was based on negligence. Further to the extent that The Survey Company may have indemnified and Delegate against third party liability, costs or expenses (which The Survey Company at its sole discretion shall be entitled to do) The Company shall thereupon be liable to indemnify The Survey Company accordingly.
j) Where the reason for third party liability mentioned in clause 5(i) was the negligence of The Survey Company, or of any Delegate then The Company’s indemnity under 5(i) shall apply above the limit of liability mentioned in clause 5(h) and The Survey Company shall be liable up to such limit.
k) In entering into The Agreement contained in clause 5 The Survey Company contracts both on its own behalf and as agent on behalf of Delegates and also as trustee for their benefit.
l) Neither party shall be liable to the other for the indirect or consequential damages resulting from or arising out of The Agreement including but not limited to loss of use of property, loss of profit, loss of product or business interruption.
m) Our liability shall expire 12 months after completion of the services in respect of which liability is alleged to arise and we shall thereafter have no liability in respect of those services and/or any alleged default in connection with the provision thereof.
Notwithstanding any other provision of the agreement:
n) All survey work undertaken hereunder shall be on terms that, unless otherwise stated in writing, no guarantee is given against faulty design, latent defects or of suitability of the 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 dismantling whether of interior linings machinery or other items or systems. Such survey conditions, reservation and restrictions will be specifically stated survey reports.
a) The Client's instructions received either by electronic means, including but not limited to email, telephone, etc or in writing, and the scope of our services hereunder, are as defined in the Scope of work. Any subsequent changes of additions to the Scope of Work must be agreed in writing by the Parties.
6.1 The Client undertakes to:-
a) Ensure that full instructions are given to us and are provided in sufficient time to enable the required services to be performed effectively and efficiently. The Client agrees to disclose to us all relevant information of which they have knowledge, or to which they have access, in relation to the vessel to be surveyed; and
b) Procure all necessary access to the promises and vessels (including lift-out. Trials and facility for inspection ashore and afloat as appropriate) for no less then such a time as shall in each particular circumstance be reasonable, to enable all appropriate inspections and tests to be undertaken of performed, and to and to 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 there requirements causing any failure on our part to undertake the Scope of Work the Client shall be responsible for all consequential costs incurred by us and in respect of any element of the Scope of Work undertaken.
6.2 We undertake to:-
a) To the extent that we are so instructed, we will inspect the vessel as thoroughly as is practicable and will endeavour to comment on the more important items where, in our reasonable opinion, major costs consequences are considered likely to arise. It follows that we cannot comment on every minor matter but we will try to point out where small factors may become more serious. Our intention is to report on the integrity of the main structural or physical elements 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 our survey report(s) cannot cover hidden, unexposed or inaccessible areas of the vessel; neither can we undertake to investigate areas that we believe to be inaccessible at the time of inspection. Where we are unable to gain access to areas commonly accessible, we will endeavour to point this out.
a) All valuation work undertaken shall be in accordance with the Scope of Work and shall be on terms that, 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. In the event that the valuation is a forecast of that which might obtain at some point in the future such valuation carries no guarantee nor is there warranty of watertight integrity, fitness for purpose of seaworthiness.
The Company undertakes to keep confidential any confidential information disclosed to it by The Survey Company and not to disclose the same either complete or in part to any third party (including subsidiary companies or associate companies) without The Survey Company’s prior written approval, such undertaking to continue notwithstanding the expiry or termination of The Agreement for so long as the information in question has not:
a) Become part of the public knowledge or literature without default on the part of The Company.
b) Been disclosed to The Company by the third party (other than one disclosing on behalf of The Survey Company) whose permission of such information is lawful and who is under no secrecy obligation with respect to the same: or for a period of 10 years from the date that The Agreement terminates, whichever is the sooner.The Survey Company shall undertake to keep confidential any confidential information disclosed to it by The Company and The Survey Company shall be liable to the same constraints as imposed by clause 6(a) on The Company.
10. Applicable Law and Arbitration
The proper law of The Agreement is English Law and English law shall be used in interpreting The Agreement and for resolving all claims or disputes arising out of or connected with The Agreement (whether based on contract, tort, or any other legal doctrine). Any such claim or dispute not settled by negotiation shall be settled by arbitration in London under the rules of the London Court of International Arbitration. The language of the Arbitration shall be English.
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