Sample Limitations Of Survey
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Terms and Conditions of AC Yacht and Boat Surveyors
1. Definitions
The Company:
The company, firm or person with whom The Agreement is made.
The Agreement:
The Agreement between AC Yacht and Boat Surveyors and The Company constituted by the attached fax/letter/e-mail/purchase order and incorporating inter alia these terms and conditions.
2. Assignment
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.
3. Delegation
If AC Yacht and Boat Surveyors considers it more efficient or convenient, AC Yacht and Boat Surveyors 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.
4. Payment
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 one 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) AC Yacht and Boat Surveyors shall perform The Agreement with all proper skills in accordance with normal industry standards.
(b) If any work or services under The Agreement are negligently performed or omitted then so far as may be reasonably practicable AC Yacht and Boat Surveyors at its own expense will cause such work and services to be correctly performed.
(c) In this clause 5 Delegate(s) means (i) employees and agents of AC Yacht and Boat Surveyors (ii) any person to whom performance of work or services under The Agreement is delegated or subcontracted by AC Yacht and Boat Surveyors and (iii) any such Person’s employees and agents.
(d) The Company shall not sue any 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 AC Yacht and Boat Surveyors under this Clause 5.
(e) The total liability of AC Yacht and Boat Surveyors to The Company for breach of The Agreement and the total third party liability of The AC Yacht and Boat Surveyors 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 Company to The Survey Company.
(f) If AC Yacht and Boat Surveyors 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 clause 5(g) below) The Company shall indemnify AC Yacht and Boat Surveyors, 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 AC Yacht and Boat Surveyors may have indemnified any Delegate against such third party liability, costs or expenses (which AC Yacht and Boat Surveyors at its sole discretion shall be entitled to do) then The Company shall thereupon be liable to indemnify AC Yacht and Boat Surveyors accordingly.
(g) Where the reason for third party liability mentioned in clause 5(f) was the negligence of AC Yacht and Boat Surveyors or of any Delegate then The Company’s indemnity under clause 5(f) shall apply above the limit of liability mentioned in clause 5(e) and AC Yacht and Boat Surveyors shall be liable up to such limit.
(h) In entering into the agreement contained in clause 5 AC Yacht and Boat Surveyors
contracts both on its own behalf and as agent on behalf of Delegates and also as trustee for their benefit.
(i) 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. Confidentiality
(a) The Company undertakes to keep confidential any confidential information disclosed to it by AC Yacht and Boat Surveyors and not to disclose the same either complete or in part to any third party (including subsidiary companies, holding companies or associate companies) without AC Yacht and Boat Surveyors 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:
(i) Become part of the public knowledge or literature without default on the part of The Company or
(ii) Been disclosed to The Company by the third party (other than one disclosing on behalf of AC Yacht and Boat Surveyors) 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 that The Agreement terminates, whichever is the sooner.
(b) AC Yacht and Boat Surveyors shall undertake to keep confidential any confidential information disclosed to it by The Company and AC Yacht and Boat Surveyors
shall be liable to the same constraints as imposed by clause 6(a) on The Company.
7. Force Majeure
Neither party to The Agreement shall be in breach of any obligation hereunder (other than the obligations of The Company to make payment of any monies due to AC Yacht and Boat Surveyors) insofar as performance thereof has been delayed, hindered, interfered with or prevented by any circumstances beyond its reasonable control.
8. Applicable Law and Arbitration
The proper law of this Agreement is English Law and English law shall be used to 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.