TERMS AND CONDITIONS
Also see Limitation of Survey
AN AGREEMENT BETWEEN
Robin Feloy Yacht Surveys (Robin Feloy): (“we, us our”)
[ ] ("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
Date: [ ]
Agreed Indemnity Limit: £250,000 (Two Hundred Fifty 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
insurance referred to at paragraph 1.6 and the aggregate amount of
such liability shall in any event be limited to the Agreed Indemnity
Limit (of £250,000).
1.7 We shall maintain professional indemnity insurance in the amount
of the Agreed Indemnity Limit throughout the period of the performance
of our duties hereunder provided that such insurance shall remain available
at reasonable market rates.
1.8 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.
1.9 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.
1.10 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.
1.11 We shall not be liable in respect of any breach of our obligations
hereunder resulting from unforeseeable causes beyond our reasonable control.
1.12 Notwithstanding any other provision of the Agreement, where the
Client is acting in the course of a business or commercial operation:
1.12.1 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;
1.12.2 we shall have no liability whether in contract, tort or otherwise:
18.104.22.168 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;
22.214.171.124 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;
126.96.36.199 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;
188.8.131.52 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
1.13 Notwithstanding any other provision of the Agreement:
1.13.1 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
[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.]
1.13.2 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;
2.1 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;
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
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.
3.1 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 inaddition to and separately to any survey
undertaken. A valuation (if carried out) will be charged for in addition
to any survey and report.]
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 21 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."
4.2 Cancellation of survey. If the survey is cancelled by the client after
a survey date has been agreed, a cancellation fee will be payable by the
client. If cancelled with in 7 days of survey date a 50% (of original fee)
Fee will be payable. If cancelled with in 48 hours of survey date the full
original Fee will be payable.
4.3 Change of survey date, time or location. If the date of the survey is
changed by the client an additional fee maybe payable by the client. If
survey date is modified with in 48 hours of the agreed date an additional
fee of up to 50% of the original agreed fee may be payable.
5.1 Client default: we may terminate the appointment forthwith
if the Client fails for more than 21 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 21 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 reorganisation
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.
7.1 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
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.
Also see Limitation of Survey