“Surveyor”/ “Consultant” is the Surveyor / Consultant trading under these conditions.
“Client” is the party at whose request or on behalf the Surveyor/Consultant undertakes services.
“Report” means any report or statement supplied by the Surveyor/Consultant in connection with the instructions received from the client.
“Disbursements” means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmission fees, and all reasonable expenses including travel, subsistence and hotel accommodation where overnight stay is necessary. “Fees” means the fees charged by the Surveyor/Consultant to the Client and including value added tax where applicable and any disbursements.
The Surveyor/Consultant shall provide its services solely in accordance with these terms and conditions.
The Client will set out in writing the services which it requires the Surveyor/Consultant to provide. The Surveyor/Consultant will confirm in writing that it accepts those instructions or alternatively what services it will perform in connection with the Clients instructions. Once the Surveyor / Consultant and Client have agreed what services are to be performed (The Services) any subsequent changes or additions must be agreed by both parties in writing.
The Client will pay the Surveyor/Consultant Fees punctually in accordance with the signed Quotation.
5. Obligations and Responsibilities
a) The Client: undertakes to ensure that the full instructions are given to the Surveyor/Consultant and are provided in sufficient time to enable the required Services to be performed effectively and efficiently and to procure all necessary access for the Surveyor /Consultant to goods, premises, vessels, installations and transport and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions. The Surveyor/Consultant shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions.
b) Surveyor: the Surveyor/Consultant shall use reasonable care and skill in the performance of the services in accordance with sound marine surveying/consulting practice.
c) Reporting: The Surveyor/Consultant shall submit a final written Report to the Client following completion of the agreed Services describing the Surveyor’s/Consultant’s findings and the condition and or quality of the object and/or purpose of the assignment, unless otherwise expressly instructed by the Client not to do so.
d) Confidentiality: the Surveyor/Consultant undertakes not to disclose any information provided in confidence by the Client to any third party and will not permit access to such information by any third party unless the Clint expressly grants permission save where required to do so by order of a competent court of law.
e) Property: The right of ownership in respect of all original work created by the Surveyor/Consultant remains the property of the Surveyor/Consultant. The report is personal and confidential to the client appointing MSES and is intended for their use only. The report carries no warranty of any sort if disposed of, lent or passed to a third party for any purpose whatsoever.
f) Conflict of Interest/ Qualification: the Surveyor/Consultant shall promptly notify the Client of any matter including conflict of interest or lack of suitable qualifications and experience, which would render it undesirable for the Surveyor/Consultant to continue its involvement with the appointment. The Client shall be responsible for payment of the Surveyor/Consultants Fees up to the date of notification.
a) Without prejudice to clause 7, the Surveyor/Consultant shall be under no liability whatsoever to the Client for any loss, damage or expense of whatever nature, whether direct or indirect and howsoever arising UNLESS same is proved to have resulted solely from the negligence or willful default of the Surveyor/Consultant or any of its employees or agents or sub-contractors.
b) in the event the Client proves the loss, damage, delay or expense suffered was caused by the negligence or willful default of the Surveyor/Consultant aforesaid, then, save where loss, damage, delay or expense has resulted from the Surveyor’s/Consultants personal act or omission committed with the intent to cause same or recklessly and with the knowledge that such loss, damage, delay or expense would probably result, the Surveyor’s/Consultants liability for each such incident or series of incidents giving rise to the claim shall never exceed a sum calculated on the basis of five times the Surveyor’s /Consultants charges, or £7,500 whichever is the lesser.
c) Without prejudice to a) and b) above, the Surveyor/Consultant shall not be liable for loss of or damage to physical equipment and property placed at its disposal by, or on behalf, of the Client however such loss or damage occurs, unless such loss or damage was caused by an act of omission committed with intent to cause some or recklessly with knowledge that such loss or damage would probably result.
d) Surveyor’s/Consultants will endeavour to meet agreed commencement dates for all works but delays are possible due to unforeseen circumstances (including, but not limited to, ongoing surveys overrunning, flight delays and illness / accident). Where possible alternative Surveyors/Consultants will be provided but any and all costs arising from the delay are not recoverable by the Client.
Except to the extent and solely for the amount therein set out that the Surveyor/Consultant would be liable under Clause 6, the Client hereby undertakes to keep the Surveyor/Consultant and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be bought against them or incurred or suffered by them , and against and in respect of all costs, loss, damages and expenses(including , but not limited to, legal costs and expenses on a full indemnity basis) which the Surveyor/ Consultant may suffer or incur (either directly or indirectly) in the course of the Services under these Conditions.
8. Force Majeure
The Surveyor/Consultant and/or the Client shall not , except as otherwise provided in the Conditions be responsible or have any liability for any loss, damage, delay or failure in performance hereunder arising or resulting from act of God (including, but not limited to, earthquake, flood, tsunami, volcano, tropical storm or other similar event) act of war, terrorist attack, nuclear contamination, seizure under legal process, epidemic quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people . Following a force majeure event either party may serve notice on the other to terminate the agreement.
The Surveyor/Consultant shall effect and maintain, at no cost to the Client, Professional Liability Insurance for such loss and damage for which the Surveyor/ Consultant may be held liable to the Client under these Terms and Conditions.
10. Surveyor’s/Consultant’s Right to Sub-contract
The Surveyor/Consultant shall have the right to sub-contract any of the services provided under the Conditions, subject to the Clients right to object on reasonable grounds. In the event of such a sub-contract the Surveyor/Consultant shall remain fully liable for the due performance of its obligations under these Conditions except as otherwise stated in the signed Service Contract.
11. Time Bar
Any claims against the Surveyor/Consultant by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the submission date of the Report to the Client.
12. Jurisdiction and Law
Any dispute or difference arising out of or in connection with these Conditions shall first be referred to mediation at Hong Kong International Arbitration Centre (HKIAC) and in accordance with its then current Mediation rules. If the mediation is abandoned by the mediator or is otherwise concluded without the dispute or difference being resolved, then such dispute or difference shall be referred to and determined by binding arbitration at HKIAC and in accordance with its Domestic Arbitration Rules.