small craft & yacht surveyor - terms and conditions

1. DEFINITIONS
1.1 The Client:
The company, firm or person with whom the agreement is made.
1.2 The Agreement:
The Agreement between David M Simms and The Client constituted by the attached fax/letter/purchase order/survey request query form and incorporating inter alia these terms and conditions.
2. ASSIGNMENT
2.1 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 Client may transfer any or all of its rights under The Agreement to any of its affiliate companies, in which case The Client shall procure the acceptance by the assignee of the terms, conditions, exceptions and exemptions of The Agreement.
3. DELEGATION
3.1 If David M Simms considers it more efficient or convenient, David M Simms may in his discretion procure advice, assistance and services, which it renders under The Agreement, from other persons and may in his discretion delegate performance of one or more of its obligations under The Agreement.
3.2 David M Simms may sub-contract all or part of the work entrusted by The Client, on terms that any such sub-contractor shall have the protection and benefit of all rights and conditions, and of all limitations that and exclusions of liability, contained in these Terms and Conditions.
4. PAYMENT
4.1 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 David M Simms is incorporated and/or operating and which The Client or David M Simms is required to pay or which David M Simms is required to withhold, The Client shall pay such sums as shall yield to David M Simms after payment or withholding of such taxes, levies or charges the full amounts payable to David M Simms under The Agreement as if such taxes, levies or other charges were not paid or withheld.
In this clause The Client shall include any assignee of any of its rights hereunder.
4.2 When David M Simms gives an estimate or indication of price – in writing or orally – he will exercise skill and judgement in doing so. Such estimates are subject to the accuracy of the information supplied by the customer and hence estimates may be amended.
4.3 Unless otherwise agreed by David M Simms payment is due 15 days from invoice date.
4.4 Any payments over due by The Client shall bear compound interest from the due date until payment at a rate of one and one half per cent per week.
4.5 Except where there are self evident errors in the invoice, payment shall be made by The Client notwithstanding any dispute relating to the billings. Any adjustments consequent on settlement of such disputes shall be made within thirty days following the settlement.
4.6 Where any payment becomes overdue by more than sixty days, David M Simms shall without prejudice to any of his other rights, be entitled to terminate The Agreement where upon payment will become due for the value of the work done up to the date of termination.
4.7 The Client is responsible for all charges and boat movements, slipping, docking lifting, removals, replacements and reinstatements arising in preparation for the process of the survey.
5. LIABILITY AND INDEMNITY
5.1 David M Simms shall perform The Agreement with all proper skills in accordance with normal industry standards.
5.2 If any work or services under The Agreement are negligently performed or omitted then so far as may be reasonably practicable David M Simms at its own expense will cause such work and services to be correctly performed.
5.3 In this clause Delegate(s) means:
Employees and agents of David M Simms. Any person to whom performance of work or services under The Agreement is delegated or sub-contracted by David M Simms. Any such person’s employees and agents.
5.4 The Client shall not sue any Delegate for any loss or damage of any nature suffered by The Client and connected with performance of The Agreement. The Clients sole remedy shall be against David M Simms under this clause.
5.5 The total liability of David M Simms to The Client for breach of The Agreement and the total third party liability of David M Simms and Delegates shall not for any reason whatsoever (including negligence) in aggregate over the duration of The Agreement exceed an amount equal to ten times the total fees paid and payable by The Client to David M Simms.
5.6 If David M Simms or any Delegate does incur third party liability of any nature whatsoever arising out of or connected with performance of The Agreement then (subject to the clause below) The Client shall indemnify David M Simms, 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 David M Simms may have indemnified any Delegate against such third party liability, cost or expenses (which David M Simms at his sole discretion shall be entitled to do) then The Client shall thereupon be liable to indemnify David M Simms accordingly.
5.7 Where the reason for third party liability mentioned in the above clause was the negligence of David M Simms, or any Delegate then The Client’s indemnity under the above clause shall apply above the limit of liability mentioned above and David M Simms shall be liable up to such limit.
5.8 In entering into the agreement contained in the clause 5 titled Liability and Indemnity David M Simms contracts both on its own behalf and as an agent on behalf of Delegates and also as trustee for their benefit.
5.9 Neither party shall be liable to the other for indirect or consequential damages resulting from or arising out of The Agreement including but not limited to loss of use of property, loss of profits, loss of product or business interruption.
6. ACCESS TO VESSEL/WORK ON THE VESSEL
6.1 The client is responsible for obtaining permission from the current owners and yard for the work/survey to be carried out. All relevant equipment is to be made readily available and the vessel be made easily accessible.
6.2 No work will be conducted without a signed survey request query form.
6.3 The client is responsible for ensuring that where the vessel has been afloat the area below the waterline where critical to inspection is clean and free from debris for the purpose of thorough inspection.
6.4 The right is reserved to decline any survey for whatever reason and decline the boarding of a vessel where it is considered to do so would be a danger to personal safety.
7. CONFIDENTIALITY
7.1 The Client undertakes to keep confidential any confidential information disclosed to it by David M Simms and not to disclose the same either complete or in part to any third party (including subsidiary companies, holding companies or associate companies) without David M Simms’ 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; become part of the public knowledge or literature without default on the part of The Client, or, been disclosed to The Client by the third party (other than one disclosing on behalf of David M Simms) whose possession 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 the Agreement terminates, which ever is the sooner.
7.2 David M Simms shall undertake to keep confidential any confidential information disclosed to it by The Client and David M Simms shall be liable to the same constraints as imposed by the above clause on The Client.
8. LIMITATIONS OF SURVEY
8.1 These Terms and Conditions should be read in conjunction with the Limitations of Survey. It is understood that the examination carried out within these stated Limitations of Survey the opinions given are given in good faith and as far as was seen at the time of the survey.
9. FORCE MAJEURE
9.1 Neither party to The Agreement shall be in breach of any obligation hereunder (other than the obligations of The Client to make payment of any monies due to David M Simms) insofar as performance thereof has been delayed hindered, interfered with or prevented by any circumstances beyond its reasonable control.
10. APPLICABLE LAW AND ARBITRATION
10.1 The proper law of this 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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