STANDARD TRADING TERMS AND CONDITIONS
Surveyor is the Survey Company trading under these conditions.
Client, firm or person, is the party at whose request or on whose behalf the Surveyor undertakes surveying services and with whom the Agreement is made.
Agreement is the agreement between the Surveyor and the Client constituted by the attached purchase order and incorporating inter alia these terms and conditions.
Report means any report or statement supplied by the Surveyor in connection with 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 and appropriate expenses including travel, refreshments and hotel accommodation where an overnight stay is necessary.
Fees means the fees charged by the Surveyor to the Client and including any value added tax where applicable and any Disbursements.
Delegate(s) means (i) employees and agents of the Surveyor (ii) any person to whom the performance of work or services under the Agreement is delegated or sub-contracted by the Surveyor and (iii) any such person’s employees and agents.
The Surveyor shall provide its services solely in accordance with these terms and conditions.
Unless otherwise agreed in writing, all offers made or services provided by Surveyor and all resulting contracts or other arrangements shall be governed by these Standard Trading Terms and Conditions.
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 or obligations 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 of the Agreement.
4. Delegation / Surveyor’s Right to Sub-contract
If the Surveyor considers it more efficient or convenient, the Surveyor may, subject to the Client’s right to object on reasonable grounds, procure advice, assistance and sub-contract services, which it renders under the Agreement, from other persons and may in its discretion delegate performance of one or more obligations under the Agreement. Client authorizes Surveyor to disclose all information necessary for such performance to the Delegate.
(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 Client is incorporated and/or operating and which the Client or the Surveyor is required to pay, or which the Client is required to withhold, the Client shall pay such sums as shall yield to the Surveyor after payment or withholding of such taxes, levies or charges the full amounts payable to the Surveyor under the Agreement as if such taxes, levies or other charges were not paid or withheld.
In this Clause 5(a) the Client shall include any assignee of any of its rights hereunder.
(b) The Client shall pay the Surveyor’s Fees within fifteen working days from the date of the relevant invoice, or in such other manner as may have been agreed in writing between the parties.
(c) Any payments overdue by the Client shall bear compound interest from the due date until payment at a rate of three percent per month.
(d) 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 upon settlement of such disputes shall be made within thirty days following the settlement.
(e) Where any payment becomes overdue by more than sixty days, the Surveyor shall, without prejudice to any of its or other rights, be entitled to terminate the Agreement whereupon payment will become due for the value of work done up to the date of termination.
(f) Client shall not be entitled to retain or defer payment of any sums due to the Surveyor on account of any dispute, counter claim or set off which it may allege against the Surveyor.
(g) In the event any unforeseen problems or expenses arise in the course of carrying out the services the Surveyor shall endeavour to inform Client and shall be entitled to charge additional fees to cover extra time and cost necessarily incurred to complete the services.
(h) If the Surveyor is unable to perform all or part of the services for any cause whatsoever outside the Surveyor’s control including failure by Client to comply with any of its obligations provided for in clause 6 below the Surveyor shall nevertheless be entitled to payment of:
(1) the amount of all non-refundable expenses incurred by the Surveyor; and
(2) a portion of the agreed fee equal to the proportion of the services actually carried out.
6. Obligations and Responsibilities
The Client undertakes to ensure that full instructions are given to the Surveyor 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 to goods, premises, vessels, installations and transport, to take all necessary steps to eliminate or remedy any obstacles to, or interruption in, the performance of the services and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions.
The Surveyor shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions.
Client acknowledges that the Surveyor, by providing the services, neither takes the place of Client or any third party, nor release them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertake to discharge any duty of Client to any third party or that of any third party to Client.
The Surveyor shall perform the Agreement with reasonable care and skill in accordance with sound marine surveying practice and in accordance with Client’s specific instructions as confirmed by the Surveyr or, in the absence of such instructions:
(a) the terms of any standard order form or standard specification sheet of the Surveyor; and/or
(b) any relevant trade custom, usage or practice; and/or
(c) such methods as the Surveyor shall consider appropriate on technical, operational and/or financial grounds.
Should Surveyor receive documents reflecting engagements contracted between Client and third parties or third party documents, such as copies of sale contracts, letter of credit, bills of lading, etc., they are considered to be for information only, and do not extend or restrict the scope of the services or the obligations accepted by the Surveyor.
The Surveyor shall submit a final written Report to the Client following completion of the agreed services describing the Surveyor’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.
Reports of Findings issued by the Surveyor will reflect the facts as recorded by it at the time of its intervention only and within the limits of the instructions received or, in the absence of such instructions, within the limits of the alternative parameters applied as provided for in the clause 6.2. The Surveyor is under no obligation to refer to, or report upon, any facts or circumstances which are outside the specific instructions received or alternative parameters applied.
Unless the Surveyor receives prior written instructions to the contrary from Client, no other party is entitled to give instructions, particularly on the scope of the services or the delivery of Reports or Certificates resulting there from. Client hereby irrevocably authorizes the Surveyor to deliver Report to a third party where so instructed by Client or, at its discretion, where it implicitly follows from circumstances, trade custom, usage or practice.
The Client undertakes to keep confidential any confidential information disclosed to it by the Surveyor and not to disclose same either complete or in part to any third party (including subsidiary companies, holding companies or associate companies) without the Surveyor’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 Client, or
(b) been disclosed to the Client by the third party (other than one disclosing on behalf of the Surveyor) 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, whichever is the sooner.
The Surveyor undertakes to keep confidential any confidential information disclosed to it by the Client and the Surveyor shall be liable to the same constraints as imposed by Clause 6.4.1. on the Client.
The right of ownership in respect of all original work created by the Surveyor remains the property of the Surveyor.
6.6. Conflict of Interest / Qualification
The Surveyor 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 to continue its involvement with the appointment.
The Client shall be responsible for payment of the Surveyor’s fees up to the date of notification.
7. Liability and Indemnity
The Surveyor is neither an insurer nor a guarantor and disclaims all liability in such capacity. Client seeking a guarantee against loss or damage should obtain appropriate insurance.
The Surveyor shall be under no liability whatsoever to the Client for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect and howsoever arising UNLESS same is proved to have resulted solely from the negligence, gross negligence or wilful default of the Surveyor or any Delegate.
(a) If any work or services under the Agreement are negligently performed or omitted then so far as may be reasonably practicable, the Surveyor at its own expense will cause such work and services to be correctly performed.
(b) The Client shall not sue any Delegate for any loss or damage of any nature whatsoever suffered by the Client and connected with performance of the Agreement. The Client’s sole remedy shall be against the Surveyor under this Clause 7.
(c) The total liability of the Surveyor to the Client for breach of the Agreement and the total third party liability of the Surveyor 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 the Surveyor.
(d) If the Surveyor 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 7(e) below) the Client shall indemnify the Surveyor, 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 Surveyor may have indemnified any Delegate against such third party liability, costs or expenses (which the Surveyor at its sole discretion shall be entitled to do) then the Client shall thereupon be liable to indemnify the Surveyor accordingly.
(e) Where the reason for third party liability mentioned in Clause 7(d) was the negligence of the Surveyor, or of any Delegate, then the Client’s indemnity under Clause 7(d) shall apply above the limit of liability mentioned in Clause 7(c) and the Surveyor shall be liable up to such limit.
(f) In entering into the agreement contained in Clause 7, the Surveyor contracts both on its own behalf and as agent on behalf of Delegates and also as trustee for their benefit.
(g) 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.
8. Suspension or Termination of Services
The Surveyor shall be entitled to immediately and without liability either suspend or terminate provision of the services in the event of:
(a) failure by the Client to comply with any of its obligations hereunder and such failure is not remedied within 10 days that notice of such failure has been notified to Client; or
(b) any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by Client.
9. Force Majeure
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 the Surveyor insofar as performance thereof has been delayed, hindered, interfered with or prevented by any circumstances beyond its reasonable control.
10. Time Bar
In the event of any claim, Client must give written notice to the Surveyor within 30 days of discovery of the facts alleged to justify such claim.
Any claims against the Surveyor by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from:
the date of performance by the Surveyor of the service which gives rise to the claim; or
the date when the service should have been completed in the event of any alleged non-performance.
11. Applicable Law and Arbitration
The proper law of the Agreement is Romanian Law and Romanian Law shall be used for 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 negotiations shall be settled by arbitration in Romania.
These Standard Trading Terms and Conditions have been drafted in English and may be translated into other languages. In the event of any discrepancy, the English version shall prevail.