The following expressions shall have the following meanings:
1.1 “Surveyor” or “Consultant” means an appointed or instructed officer of MRMC;
1.2 “Client” means any person who instructs the Surveyor/Consultant to provide the Services;
1.3 “Inspection” means the inspection/audit or otherwise undertaken for the purpose of preparing the Report;
1.4 “Report” means the report produced as a result of the service provided;
1.5 “Vessel” means the Vessel or related structures to be inspected by the Surveyor/Consultant and reported on to the Client;
1.6 “Request for Services” means the document completed by the Client instructing the Surveyor/Consultant to attend and provide the requested service and prepare the Report;
1.7 “Date of Instruction” means the date the Services commence as stated in the Application Form;
1.8 “Valuation” means a value ascertained assuming a willing buyer and seller and market conditions applicable at the time of valuation;
1.9 “Services” means services as described in the Request for Services;
1.10 “Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Surveyor/Consultant;
1.11 “Agreement” means the contract between the Surveyor/Consultant and the Client for the provision of the Services incorporating these Terms and Conditions.
1.12 “Costed Proposal” means the provision of a proposal detailing the envisaged costs for providing Services;
2.1 These Terms and Conditions shall apply to the Agreement for the supply of Services by the Surveyor/Consultant to the Client and shall supersede any other documentation or communication between parties.
2.2 Any variation to these Terms and Conditions must be agreed in writing by the Surveyor/Consultant.
2.3 Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Surveyor/Consultant may be entitled in relation to the Services, by virtue of any statute, law or regulation.
3 REQUEST FOR SERVICES
3.1 The Request for Services shall remain valid for a period of 30 days.
3.2 The Request for Services must be completed by the Client in its entirety.
3.3 The Agreement between the Surveyor /Consultant and the Client, incorporating these Terms and Conditions, shall only come into force when the Surveyor/Consultant confirms acceptance in writing to the Client.
4 SERVICES AND DELIVERY
4.1 The Services are as described in the Request for Services and in these Terms and Conditions.
4.2 Any variation to the Services must be agreed by the Surveyor/Consultant in writing.
4.3 The Services shall commence on the Date of Instruction as specified in the Request for Services and continue until the Services have been delivered or until terminated in terms of this Agreement.
4.4 Dates given for the delivery of Services are estimates only and not guaranteed. Time for delivery shall not be of the essence of the Agreement and the Surveyor/Consultant shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery.
5.1 The Report may advise the Client on the integrity of the main structural and physical elements of the Vessel, the state of repair of the Vessel and any matters including compliance to National and International law. The Report may also comment on issues that may require further investigation, as far as can be reasonably ascertained from a visible inspection.
5.2 The Report shall be delivered within 7 days from the date of attendance.
5.3 The Report shall be delivered to the Client by email or by any other means as requested specifically by the Client to the address(s) as stated on the Request for Services
5.4 The Report may include statements on:
5.4.1 the main aspects of the Vessel including the design, structural framework, fabric and general condition;
5.4.2 any other issues requiring further investigation.
5.4.3 any other issues that the Client requests dependant upon the Services requested.
5.5 On occasion the Report may include a Valuation for the Vessel.
5.6 The Report is for the sole use of the Client and their appointed professional advisors only. The Client must not disclose the contents or any part thereof to any other third party without the written permission of the Surveyor/Consultant.
5.7 The Report may advise that further specialist investigation is required for which additional fees will be chargeable.
5.8 The Report may not be linked to vessel inspection but may be provided for any other area of business and services that the Surveyor/Consultant provides.
6 VESSEL INSPECTION
6.1 The Surveyor/Consultant shall conduct the Inspection diligently but is not required to undertake any action that would risk damage to person or property.
6.2 The Surveyor/Consultant may take photographs as part of the Inspection.
6.3 The Surveyor/Consultant shall inspect the Vessel as thoroughly as is practicable and shall endeavour to comment on the most important items where it is expected major costs and consequences are most likely to arise. Minor matters shall only be noted where, in the opinion of the Surveyor/Consultant, they are likely to become more serious.
6.4 The Inspection is based on a visible survey of the Vessel and cannot cover hidden, inaccessible, obstructed or unexposed parts of the Vessel.
6.5 A full survey of the Vessel is recommended to include inspection of the Vessel in the water and when lifted out of the water. Where the Client instructs a survey solely on an inspection of the Vessel out of the water the Surveyor/Consultant shall make no representations regarding the watertight integrity, fitness for purpose or seaworthiness of the Vesse
7 PRICE AND PAYMENT
7.1 The price for Services is as specified in the Costed Proposal and is not inclusive of Vat (if applicable). Vat is charged at the rate applicable to UKHMRC rules and guidelines.
7.2 The terms for payment are as specified in the Costed Proposal.
7.3 All direct costs and expenses incurred by the Surveyor/Consultant in connection with the provision of the Services will be re-charged at cost + 10% or according to standard charges as described in the Costed Proposal and are payable by the Client. Production of the appropriate receipts will be supplied if requested. A fee of 120GBP is levied for Administrative costs and is included as part of expenses to be paid by the Client.
7.4 The Client must settle all payments for Services within 14 days from the invoice date.
7.5 The Client will pay interest on all late payments at a rate of 8% per annum above the base lending rate of NatWest or as agreed between the Surveyor/Consultant and Client under a contratural interest rate.
7.6 The Surveyor/Consultant is also entitled to recover all reasonable expenses incurred in obtaining payment from the Client where any payment due to the Surveyor/Consultant is late.
7.7 The Client is not entitled to withhold any monies due to the Surveyor/Consultant.
7.8 The Surveyor/Consultant is entitled to vary the price to take account of:
7.8.1 any additional Services requested by the Client which were not included in the original Request for Services;
7.8.2 any additional work required to complete the Services which was not anticipated at the time of the Request for Services;
7.8.3 any reasonable increase in hourly rate, if applicable;
and any variation must be intimated to the Client in writing by the Surveyor/Consultant.
7.9 Fees payable are as published in the Costed Proposal and are based on £1100GBP per day and £175GBP per hour excluding VAT. The Surveyor/Consultant reserves the right to offer a fixed price fee to the benefit of the Client.
8 CLIENT OBLIGATIONS
8.1 The Client agrees to cooperate with the Surveyor/Consultant and shall provide any support, information and facilities to the Surveyor/Consultant as may be required.
8.2 The Client confirms that, if not the owner of the Vessel, the owner’s permission has been obtained to the carrying out of the Survey.
8.3 The Client is responsible for securing all necessary consents and approvals to enable the Surveyor/Consultant to carry out the Services.
8.4 Before the inspection, the Client will inform the Surveyor/Consultant of the agreed purchase price for the Vessel if appropriate and any particular concerns or questions which he or she may have about the Vessel.
9 SURVEYOR OBLIGATIONS
9.1 The Surveyor/Consultant shall supply the Services as specified in these Terms and Conditions and in the Request for Services, as completed by the Client.
9.2 The Surveyor/Consultant shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice.
9.3 The Surveyor/Consultant shall hold adequate professional indemnity insurance.
9.4 The Surveyor/Consultant shall comply with any obligations determined by the Data Protection Act 1998 (as amended).
10 RIGHT TO SUB-CONTRACT
10.1 The Surveyor/Consultant shall have the right to sub-contract any of the Services to a professional of equal merit, subject to providing the Client with written notice of such intention and the right of the Client to object on reasonable grounds.
10.2 The Surveyor/Consultant shall remain fully liable for the due performance of all obligations under these Terms and Conditions in the event that the Services are the subject of a sub-contract arrangement.
The Client will be entitled to cancel this contract by notifying the Surveyor/Consultant at any time up to the close of business two days before Inspection or departure from the country of the Surveyor’s/Consultant’s origin. In case of cancellation, the Surveyor/Consultant will refund any money paid by the Client for the Services, except for expenses reasonably incurred. Costs already incurred by the Surveyor/Consultant in pursuance of organising attendance for the Service shall be redeemed from the Client as prescribed by these terms and conditions. Cancellation after the prescribed period will enforce a payment of no more than one days fee as prescribed in these terms and conditions. In the case of cancellation by the Surveyor/Consultant, the reason will be explained to the Client.
12.1 The Agreement shall continue until the Report has been delivered or any subsequent date as mutually agreed in writing by both parties or until terminated by either party in accordance with these Terms and Conditions.
12.2 The Client may terminate the Agreement if the Surveyor/Consultant fails to comply with any aspect of these Terms and Conditions and this failure continues for a period of 7 days after notification of non-compliance is given.
12.3 The Surveyor/Consultant may terminate the Agreement if the Client has failed to make over any payment due within 8 weeks of the sum being requested.
12.4 Either party may terminate the Agreement by notice in writing to the other if:
12.4.1 the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
12.4.2 the other party commits a material breach of these Terms and Conditions which cannot be remedied under any circumstances; or
12.4.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
12.4.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.4.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
12.5 In the event of termination the Client must make over to the Surveyor/Consultant any payment for work done and expenses incurred up to the date of termination.
12.6 Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
13 DISPUTE RESOLUTION
13.1 In the event that the Client has a complaint regarding the standard of service that has been provided a formal complaint handling procedure shall be followed.
13.2 Any action under the complaint handling procedure will not affect the Client’s legal rights.
Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
15 LIMITATION OF LIABILITY
15.1 The Services are intended for the Client only. No liability is assumed towards any other party and nothing in the Agreement shall confer or purport to confer on any third party a benefit or right to enforce any provision of these Terms and Conditions.
15.2 Nothing in these Terms and Conditions shall exclude or limit the liability of the Surveyor/Consultant for death or personal injury, however the Surveyor/Consultant shall not be liable for any direct loss or damage suffered by the Client howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the total sum, paid by or charged to the client, to the Surveyor/Consultant for the services provided.
15.3 The Surveyor/Consultant shall not be liable under any circumstances to the Client or any third party for any indirect or consequential loss or damage suffered by the Client howsoever caused, as a result of any negligence, breach of contract, misrepresentation or otherwise.
15.4 The Surveyor’s/Consultant’s liabilities shall expire 12 months after completion of the Services in respect of which liability is alleged to arise and the Surveyor/Consultant shall thereafter have no liability in respect of those Services and/or any alleged default in connection with the provision thereof.
The Client shall indemnify the Surveyor/Consultant against all claims, costs and expenses which the Surveyor/Consultant may incur and which arise directly or indirectly from the Clients breach of any of its obligations under these Terms and Conditions.
17 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Surveyor/Consultant.
19 RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be construed as establishing or implying a partnership or joint venture between the parties or suggest that either of the parties are agent for the other.
20 THIRD PARTY RIGHTS
Nothing in these Terms and Conditions intend to or confer any rights on a third party.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Request for Services or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
24 ENTIRE AGREEMENT
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
25 GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
26 GENERAL DATA PROTECTION REGULATIONS (GDPR) 2018
In relation to “Personal Data” as defined in the 2018 regulation, MRMC practices compliance with Article 5 of the GDPR, which sets out its organisation’s legal responsibility when handling personnel data.
“Any information relating to an identifiable person who can be directly or indirectly identified, in particular by reference to an identifier”
The identifiers that may be referred to within MRMC Business Management System include individual names, telephone numbers, email addresses and historic location data only.
Therefore, in compliance with Article 6(f) of the regulation, MRMC in the processing, retention and management of such personal data has a valid lawful basis for the use of, and controlled circulation of, such data, namely it has as defined by the regulation a legitimate interest for processing such data as a general practice in the delivery of its internal policies and procedures.
As is defined in Article 6 of the regulation it is therefore deemed necessary for such personal data to be included and recorded within the internal procedures of MRMC Business Management System as a means of providing continued support to its commercial interests.