Almost
all cargo transported throughout the world is carried according to some form of
contractual conditions. Ship owners, freight forwarders and others carry on
their businesses protected by their trading conditions.
It is perhaps surprising therefore that few surveyors and consultants,
who after all deal with the same ships and cargoes, take steps to obtain the
same benefits.
Following
consultation with a number of industry bodies, we have produced
"ITIC's Standard Terms for Surveyors and Consultants" a set of
draft clauses for members to consider using in their own trading conditions.
These
terms and conditions are published for the general interest of members of ITIC.
The specific requirements of individual businesses vary and accordingly no
responsibility can be taken for the suitability of these terms and conditions to
a specific business. As with all contractual terms it is important that the user
ensures that they are properly incorporated in their dealings with other
parties. Members should seek the advice of their usual legal adviser prior to
using such terms and conditions.
ITIC
reserves all rights, including copyright, trademarks and other intellectual
property rights, in these standard trading conditions and no part thereof can be
redistributed, republished or stored in any format without the express written
permission of ITIC.
For further information, we would also recommend that you consult The Intermediary 2001 article on Standard Trading Conditions. http://www.itic-members.com/pubs_one2.html
ITIC's Standard Terms for
Surveyors and Consultants
1.
Definitions
“Surveyor”/”Consultant”
is the Surveyor/Consultant trading under these conditions.
“Client”
is the party at whose request or on whose behalf
the Surveyor/Consultant undertakes surveying services.
“Report”
means any report or statement supplied by the Surveyor/Consultant 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/Consultant to the Client and including
any value added tax where applicable and any Disbursements
2. Scope
The
Surveyor/Consultant shall provide
its services solely in accordance with these terms and conditions.
3.
Work
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
alternatively what services it will perform in connection with the Client's
instructions. Once the
Surveyor/Consultant and the Client have agreed what services are to be performed
any subsequent changes or additions must be agreed by both parties in writing.
4.
Payment Terms
The
Client shall pay the Surveyor/Consultant's Fees punctually in accordance with
these Conditions and in any event not later than 30 days following the relevant
invoice date, or in such other manner as may have been agreed in writing between
the parties. Any delay in payment
shall entitle the Surveyor/Consultant to interest at
4% above the Base Lending Rate of HSBC Bank Plc prevailing at the time of
default.
5.
Obligations and Responsibilities
(a) Client
The
Client undertakes to ensure that 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 Client expressly grants permission
save where required to do so by an 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.
(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/Consultant's Fees up to
the date of notification.
6.
Liability
(a)
Without prejudice to Clause 7, the
Surveyor/Consultant 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/Consultant or any of its employees or agents or
sub-contractors ,
(b)
In the event that the Client proves that the loss,
damage, delay or expense was caused by the negligence, gross negligence or
wilful default of the Surveyor/Consultant aforesaid, then, save where loss,
damage, delay or expense has resulted from the Surveyor’s/Consultant’s
personal act or omission committed with the intent to cause same or recklessly
and with knowledge that such loss, damage, delay or expense would probably
result, the Surveyor’s/Consultant’s liability for each incident or series of
incidents giving rise to a claim or claims shall never exceed a sum calculated
on the basis of ten times the Surveyor's/Consultant's charges or £125,000
whichever is the greater.
The Surveyor/Consultant shall not be liable for loss of or damage to
equipment and other items placed at its disposal by or on behalf of the Client
however such loss or damage occurs.
7.
Indemnity
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 brought
against them or incurred or suffered by them, and against and in respect of all
costs, loss, damages and expenses (including 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
Neither
the Surveyor/Consultant nor the Client shall, except as otherwise provided in
these Conditions, be responsible for any loss, damage, delay or failure in
performance hereunder arising or resulting from act of God, act of war, seizure
under legal process, quarantine restrictions, strikes, boycotts, lockouts,
riots, civil commotions and arrest or restraint of princes, rulers or people.
9.
Insurance
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 Client’s 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.
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
These
Conditions shall be governed by and construed in accordance with the laws of
England and Wales and any dispute shall be subject to the exclusive jurisdiction
of the English Courts.
Retorno a Adicionales Retorno a Página Principal