Also see Limitation of Survey
AN AGREEMENT BETWEEN
Richard O. J. Naylor - Marine Surveys & Consultancy International: (“we, us our”)
and [ ] ("the Client")
collectively, "the Parties"
Scope of Work: 1. Pre-purchase condition survey.
2. Hull & Deck structure survey.
3. Hull only external inspection (Osmosis check).
4. Insurance condition survey.
5. Valuation only.
6. Miscellaneous inspection (ie: damage inspection).
(See additional pages “Type of Survey” for guide to Scope of work).
Date: [ ]
Definitions
Agreed Indemnity Limit: £100,000 (One Hundred Thousand Pounds). This is the maximum limit of our liability to the Client, under any circumstances.
"Survey" and "Survey Report": the survey and the survey report that form the subject-matter of this Agreement.
Survey Fee: £[ ] ([ ] pounds) not including the costs of travel, subsistence and accommodation which will be charged in addition in accordance with clause 4 of the terms below.
This Agreement is made subject to the following terms:
1. Limitations of liability
1.1 All services and reports are provided for the named Client'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 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 the Agreement and any person who is not a party to the Agreement shall have no right under that Act to enforce any term(s) of the Agreement.
1.2 We shall undertake the services to which these terms relate with reasonable care, skill and diligence. Notwithstanding any other provision of these terms or any other agreement reached between the Parties we shall not be liable under the 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 us or those for whom we are responsible or (ii) where, notwithstanding any breach as aforesaid, any loss or damage is not a reasonably foreseeable result of any such breach.
1.3 We 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 the Agreement.
1.4 Any claim by the Client in respect of any breach of our obligations hereunder must be notified to us as soon as is reasonably practicable after the Client becomes aware of the breach. Where any breach is capable of remedy, we must be afforded a reasonable opportunity to put matters right at our expense.
1.5 The Client covenants with us and our servants and agents that no such servant or agent shall in any circumstances whatsoever be under any liability for any loss arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and, without prejudice to the generality of the foregoing, every exemption, limitation and condition herein contained and every right, exemption and limitation of liability applicable to us or to which we are entitled hereunder shall also be available to protect every such servant or agent acting as aforesaid and for the purpose of the foregoing provisions we are or shall be deemed to be acting as agents or trustees on behalf of and for the benefit of all persons who are or might be our servants or agents from time to time and all such persons shall to this extent be or be deemed to be parties to these terms.
1.6 The Client acknowledges and agrees that, for reasons of commercial practicality, it is necessary for us to limit our potential liability in respect of loss or damage suffered by the Client as a result of any breach by us of any of our obligations under the Agreement., As such, the Client acknowledges and agrees that no liability howsoever arising whether under the Agreement or otherwise shall attach to us except insofar as such liability is covered by the professional indemnity and the aggregate amount of such liability shall in any event be limited to the Agreed Indemnity Limit (of £100,000).
1.7 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 Class records, registry details or other such information and no assurances can be given regarding the accuracy of the same.
1.8 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.
1.9 The Client shall be responsible for any losses, expenses or other costs reasonably incurred by us that are caused by a breach of the Client's obligations to us hereunder.
1.10 We shall not be liable in respect of any breach of our obligations hereunder resulting from unforeseeable causes beyond our reasonable control.
1.11 Notwithstanding any other provision of the Agreement, where the
Client is acting in the course of a business or commercial operation:
1.13.1 our liability shall expire three months after the Survey Report is
delivered to the Client and we shall thereafter have no further liability
whether in contract, tort or otherwise;
1.13.2 we shall have no liability whether in contract, tort or otherwise:
1.13.2.1 in respect of any consequential or economic loss or for loss of
profit or turnover or loss of use suffered by the Client howsoever arising,
whether under the Agreement or otherwise, and without prejudice to the
generality of the foregoing we shall not be liable for any consequences of
late performance of the Survey and/or late delivery of the Survey Report;
1.13.2.2 in respect of any breach of our 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;
1.13.2.3 in respect of any loss, injury or damage sustained as a result of (i)
any defect in any material or workmanship, or (ii) the act, omission or
insolvency of any person other than ourselves, and we shall have no
liability to indemnify the Client in respect of any claim made against the
Client for any such loss, injury or damage;
1.13.2.4 our liability shall be limited to the amount for which we would
have been liable but for the application of this paragraph less such sum(s)
as would have been recovered by us (ignoring the operation of this
paragraph) from any other adviser or contractor pursuant to the Civil
Liability (Contribution) Act 1978 had we brought proceedings thereunder
against such parties (they being deemed to have undertaken liability in no
less onerous terms in favour of the Client than those contained herein) for
a contribution or indemnity awarded in those proceedings.
1.14 Notwithstanding any other provision of the Agreement:
1.14.1 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 other dismantling whether
of interior linings, machinery or other items or systems.
[Survey is subject to specific limitations with regard to access, opening
up, dismantling, running or machinery etc which may be additional to those
mentioned above. These limitations may vary from survey to survey and will
be stated within the report in addition to those mentioned here.]
1.14.2 we 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;
2. Surveys
2.1 The Client's instructions, and the scope of our 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.
2.2 The Client undertakes to:
2.2.1 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
2.2.2 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 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 these 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.
2.3 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.
2.6 In every case, we recommend a full survey of a vessel, to include
inspection of the vessel while lifted and while in the water. Where we
accept instructions to survey a vessel solely on the basis of an inspection
of the vessel while located out of the water, we make no representation and
give no warranty as to the watertight integrity of the vessel.
3. Valuations
3.1 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.
[Valuations are carried out in addition to and separately to any survey
undertaken. A valuation (if carried out) will be charged for in addition to
any survey and report.]
4. Fees
4.1 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 15
days of the date of the invoice. Thereafter, interest shall be payable on
all sums owing and unpaid at a rate of "3% over Barclays Bank plc (London)
base rate."
5. Default
5.1 Client default: we may terminate the appointment forthwith if the Client
fails for more than 15 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 15 days' formal notice of
such failure, without prejudice to our accrued rights.
5.2 Other defaults: either party may terminate the appointment forthwith by
notice if the other party shall: have a petition presented for its winding
up or administration which is not discharged within 14 days of presentation
or any other action is taken with a view to its winding up (otherwise than
for the purpose of re-organization or amalgamation without insolvency), or
become bankrupt or commit an act of bankruptcy, or make any arrangement or
composition for the benefit of creditors, or have a receiver or manager or
administrative receiver or administrator or liquidator appointed in respect
of any of its assets, 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; without prejudice to the accrued rights of the
other party.
6. Law and disputes
6.1 These terms shall be governed by and construed in accordance with
English law and any dispute or difference arising, or claim made, between or
by the Parties out of or in relation to or in connection with the provision
of services to which these terms relate and which cannot be resolved by the
Parties shall be submitted to the non-exclusive jurisdiction of the Courts
of England and Wales.
7. Miscellaneous
7.1 No exercise or failure to exercise or delay in exercising any right,
power or remedy vested in either party shall be deemed to be a waiver by
that party of that or any other right, power or remedy.
7.2 Neither party shall transfer or assign its rights or obligations
under these terms without the prior written consent of the other.
7.3 In the event that any provision of these terms is held to be a violation
of any applicable law, statute or regulation the same 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 therein. Notwithstanding the foregoing 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.
7.4 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.
7.5 References to "we", "us" and "our" include our employees and persons,
firms and companies appointed or engaged by us as our 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 us, and all agents and employees of persons,
firms and companies referred to in this clause.
7.6 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.
7.7 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.
________________________________________________________________________________________________________________________
UK:- Dalton House, 60 Windsor Avenue, London SW19 2RR, England, UK
Turkey:- S.V. Sri Mutiara, Marmaris Yacht Marina, Marmaris , Mugla
GSM Mobile Tel:- 90 537 720 3788 - Tel:- 90 252 422 0018 - Fax:- 44 20 7681 1505
Fax & Voice Mail:- London 44 (0)20 7681 1505
International Telephone:-
UK:- +44 20 8133 9203
USA:- +1 (206) 866 5730
Canada:- + 1 (604) 608 3178
Australia:- + 61 (08) 61020192
Visit the site of "The Yacht Designers and Surveyors Association" to find a member in your area.