Terms and Conditions, Code of conduct - SIMPLY MARINE SURVEYS & CONSULTANTS

As an IIMS trained boat surveyor we operate under their terms and conditions, these are below and a copy will be sent to you with the contract of engagement. We also adhere to the IIMS Code of Practice for small craft which can be found on their website www.iims.org.uk

Simply Marine Surveys ("The Company")Terms and Conditions

IT IS AGREED that:-
A. These Terms of Business shall form part of the agreement between The Company and the Client; and
B. The Company shall perform the Scope of Work as set out in the contract of engagement subject to the following terms:

1. Services

1.1The Company shall undertake the services to which these terms relate with reasonable care, skill and diligence.
1.2 The Client’s instructions and the scope of the The Company's services hereunder, are as defined in the Scope of Work. Subsequent changes or additions to the Scope of Work must be agreed in writing by the Parties.
1.3 The Client undertakes to:
1.3.1 ensure that full instructions are given to The Company and are provided in sufficient time to enable the required services to be performed effectively and efficiently. The Client agrees to disclose to The Company all relevant information of which they have knowledge, or to which they have access, in relation to the Vessel to be surveyed;
1.3.2 In consultation with The Company, 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
1.3.3 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 the requirements of Clauses 1.3.1 to 1.3.3 inclusive causing any failure on The Company's part to undertake the Scope of Work the Client shall be responsible for all consequential costs incurred by The Company and in respect of any element of the Scope of Work undertaken.
1.4 Pursuant with the Scope of Work, our Surveyor will inspect the Vessel as thoroughly as is practicable and endeavour to comment on the more important items where, in our Surveyor’s reasonable opinion, major cost consequences are considered likely to arise. The Surveyor may not comment on every minor detail but the Surveyor will point out where these small details may become more serious issues.
1.5 Our Surveyor will report on the condition of the hull(s), superstructure and fixtures of the Vessel so far as can be reasonably ascertained by visual inspection at the time of survey. The Client accepts that The Company's survey report cannot cover hidden, unexposed or inaccessible areas of the Vessel, neither can the Surveyor undertake to investigate areas that the Surveyor believes to be inaccessible at the time of inspection. Where the Surveyor is unable to gain access to areas commonly accessible, the Surveyor will identify these areas and recommend further inspection.
1.6 In all cases, The Company recommends a full survey of a Vessel, to include inspection while ashore and afloat. Where The Company accepts instructions to survey a Vessel solely on the basis of an inspection of the Vessel out of the water, The Company makes no representation and gives no warranty as to the watertight integrity or buoyancy of the Vessel.

2. Valuation

All valuation work undertaken shall be in accordance with the Scope of Work and, 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.

3. Fees

3.1 The fee agreed between The Company and the Client for the services to be provided by The Company under this Agreement (“the Survey Fee”) shall not include the costs of travel, subsistence and accommodation which will be charged in addition and in accordance with this Clause 3 unless stated in the agreement. It shall not include any additional work carried out on a consultancy basis, this will be billed separately.
3.2 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. (Simply Marine Surveys and Consultants is not VAT registered ). Invoices will be submitted in respect of all fees and expenses when due and the amount of each invoice shall be settled before the work is undertaken unless agreed otherwise. Thereafter, interest shall be payable on all sums owing and unpaid at a rate of 4% over Bank of England base rate. Interest to be charged daily and added to the debt.
3.3 Cancelation fees – If the survey is cancelled by the Client for any reason after the contract has been agreed, the Client will be liable to pay 50% of the original quote less any travel costs. The Company will endeavour to book another survey on the same day and if successful will not make any further survey charges.
3.4 Flight delays and cancelations – If the survey includes flight or travel (which will have been paid for in advance by the customer), the timing of the flights will be agreed between both parties before booking is made. Once the booking is made, if the survey is not able to be undertaken or has to be postponed due to flight delays or disruption through no fault of either party, all costs will be met by the Client. For clarity this could involve but is not limited to – extra days of travel (charged at £250 per day), additional overnight accommodation, lost flight costs, extra flight costs. The Company agrees not to charge additional survey days if the survey is postponed and re-scheduled for a further date. If the Client and The Company agree to cancel the survey due to these delays, The Company agrees to refund any unused costs.

4. Limitations

4.1 The Company shall not be liable under this 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 The Company or (ii) where, notwithstanding any such breach, any loss or damage is not a reasonably foreseeable result of such breach.
4.2 All services and reports are provided for the Client’s use only. No liability of any nature is assumed towards any other party and nothing in these terms, or the relationship between The Company 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 this Agreement and any person who is not a party to this Agreement shall have no right under that Act to enforce any term(s) of this Agreement. Any liability shall expire 12 months after completion of the services in respect of which liability is alleged to arise and shall thereafter have no liability in respect of those services and/or any alleged default in connection with the provision thereof.
4.3 The Company 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 this Agreement.
4.4 Any claim by the Client in respect of any breach of The Company's obligations under this Agreement must be notified to The Company as soon as is reasonably practicable after the Client becomes aware of the breach. Where any breach is capable of remedy, The Company must be afforded a reasonable opportunity to put matters right at their expense.
4.5 The Client agrees that, for reasons of commercial practicality, it is necessary to limit The Company’s potential liability in respect of loss or damage suffered by the Client as a result of any breach by The Company of any of The Company’s obligations under this Agreement. As such, the Client agrees that no liability howsoever arising whether under this Agreement or otherwise shall attach to the Surveyor except insofar as such liability is covered by the professional indemnity insurance referred to in paragraph 4.6 and such liability (including Claims Expenses) shall in any event be limited to £250,000 or such higher sum as the parties shall agree in writing prior to commencement of the services to which these terms relate (hereafter referred to as “the Agreed Indemnity Limit”).
4.6 The Company shall maintain professional indemnity insurance in the amount of the Agreed Indemnity Limit throughout the period of the performance of The Company’s duties hereunder provided that such insurance shall remain available at reasonable market rates.
4.7 The Company’s liability shall not extend to particulars, data and other information given to The Company by others or obtained from outside sources, publications and the like reasonably relied upon by the Surveyor, including Class records, registry details or other such information and no assurances can be given regarding the accuracy of the same.
4.8 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.
4.9 The Client shall be responsible for any losses, expenses or other costs reasonably incurred by The Company that are caused by a breach of the Client’s obligations to The Company hereunder.
4.10 The Company shall not be liable in respect of any breach of his obligations hereunder resulting from unforeseeable causes beyond The Company’s reasonable control.
4.11 The copyright of the survey remains with The Company and should not be copied in part or whole without the express permission of the Surveyor.

Business or Commercial Operations

4.11 Notwithstanding any other provision of this Agreement, where the Client is acting in the course of a business or commercial operation:
4.11.1 The Company’s liability shall expire twelve months after the Survey Report is delivered to the Client and The Company shall thereafter have no further liability whether in contract, tort or otherwise; and
4.11.2 The Company shall have no liability whether in contract, tort or otherwise for:
4.11.2.1 Any consequential or economic loss or for loss of profit or turnover or loss of use suffered by the Client howsoever arising, whether under this Agreement or otherwise, and without prejudice to the generality of the foregoing The Company shall not be liable for any consequences of late performance of any survey and/or late delivery of any survey report;
4.11.2.2 Any breach of his 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;
4.11.2.3 Any loss, injury or damage sustained as a result of:
i. any defect in any material or workmanship;
ii. an Act of God or other circumstances beyond the control of The Company; or
iii. the act, omission or insolvency of any person other than The Company;
and The Company shall have no liability to indemnify the Client in respect of any claim made against the Client for any such loss, injury or damage;

4.12 Notwithstanding any other provision of this Agreement:
4.12.1 Unless otherwise stated in writing, no guarantee is given against faulty design, latent defects or of suitability of any 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 or systems;
4.12.2 The Company 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.

5 Law and disputes

This Agreement shall be construed in accordance with and shall be governed by English law. All disputes arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the Courts of England and Wales.

6. Miscellaneous

6.1 The Company may terminate the appointment forthwith if the Client fails for more than 28 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 28 days’ formal notice of such failure, without prejudice to The company's accrued rights.
6.2 Without prejudice to the accrued rights of the other party, either party may terminate the appointment forthwith by notice if the other party shall become bankrupt or insolvent, or make any arrangement or composition for the benefit of creditors, 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.
6.3 No exercise or failure to exercise or delay in exercising any right or remedy vested in either party shall be deemed to be a waiver by that party of that or any other right or remedy.
6.4 Neither party shall transfer or assign its rights or obligations under these terms without the prior written consent of the other.
6.5 In the event that any provision of these terms is held to be a violation of any applicable law, statute or regulation, such provision 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 herein. Notwithstanding this, in the event of any such deletion the Parties shall negotiate in good faith in order to agree the terms of an acceptable alternative provision.
6.6 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.
6.7 References to The Company include The Company’s surveyors, employees and persons, firms and companies appointed or engaged by The Company as The Company’s 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 The Company, and all agents and employees of persons, firms and companies referred to in this clause.
6.8 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 .
6.9 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.

SIMPLY MARINE SURVEYS AND CONSULTANTS

TERMS OF BUSINESS BMF Edition15a England

THESE TERMS OF BUSINESS APPLY TO ALL CONTRACTS FOR WORK AND FACILITIES OR GOODS UNDERTAKEN BY US ON OR AFTER 31 OCTOBER 2012

1 LIABILITY

1.1 We shall not be liable for any loss or damage caused by events or circumstances beyond our reasonable control (such as severe weather conditions, the actions of third parties not employed by us or any defect in a customer’s or third party’s property); this extends to loss or damage to vessels, gear, equipment or other property left with us for work or storage, and harm to persons entering our premises or using any of our facilities or equipment.

1.2 We shall take reasonable and proportionate steps having regard to the nature and scale of our business to maintain security at our premises, and to maintain our facilities and equipment in reasonably good working order; but in the absence of any negligence or other breach of duty by us vessels and other property are left with us at the customer’s own risk and customers should ensure that their own personal and property insurance adequately covers such risks.

1.3 We shall not be under any duty to salvage or preserve a customer’s vessel or other property from the consequences of any defect in the vessel or property concerned unless we have been expressly engaged to do so by the customer on commercial terms. Similarly we shall not be under any duty to salvage or preserve a customer’s vessel or other property from the consequences of an accident which has not been caused by our negligence or some other breach of duty on our part.

However we reserve the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment. Where we do so we shall be entitled to charge the Customer concerned on a normal commercial basis.

1.4 Customers may themselves be liable for any loss or damage caused by them, their crew or their vessels and while their vessel or other property is on our premises or is being worked on by us they shall be obliged to maintain adequate insurance including third party liability cover for not less than £2,000,000, and, where appropriate, Employer’s Liability cover in respect of any employee. Customers shall be obliged to produce evidence of such insurance to us within 7 days of a request to do so.

1.5 Nothing in these Terms of Business shall limit or exclude our liability for death or personal injury caused by our negligence or the negligence of our employees, agents or sub-contractors; for fraud or fraudulent misrepresentation; or otherwise to the extent that it would be illegal for us to exclude or attempt to exclude liability.

2 PRICES AND ESTIMATES

2.1 In the absence of express agreement to the contrary our price for work shall be based on labour and materials expended and services provided.

2.2 We will exercise reasonable skill and judgment when we give an estimate or indication of price. However such estimates are always subject to the accuracy of information provided by the customer and are usually based only on a superficial examination and will not include the cost of any emergent work which may be necessary to the vessel, gear or equipment nor the cost of any extensions to the work comprised in the estimate.

2.3 We will inform the customer promptly of any proposed increase in estimated prices and the reasons for it and will only proceed with the work or supply with the approval of the customer. The customer shall remain responsible for the cost of labour and materials already supplied or remaining to be supplied which are not affected by the proposed increase in price.

3 DELAYS

3.1 Any time given for completion of our work is given in good faith but is not guaranteed. We shall not be responsible for any delay in completion of the work or for the consequences of any such delay unless it arises from our wilful acts or omissions or from our negligence.

4 VESSEL MOVEMENTS

4.1 We reserve the right to move any vessel, gear, equipment or other property at any time for reasons of safety, security or good management of our business and premises.

5 PAYMENT

5.1 Unless otherwise agreed between us payment for all work, goods and services shall be due immediately on invoice date. Payment shall be deemed to have been made when we receive cash or cleared funds at our bank.

5.2 We have the right to charge interest on any sum outstanding for more than 30 days (except in the case of a reasonable and proportionate retention by the customer of any amount genuinely in dispute between us and the customer) on the outstanding balance at 4% above Bank of England base rate which may be calculated daily up to the date of actual payment. In the case of business customers this rate will be substituted with the current rate applicable under late payment legislation.

5.3 We reserve a general right (“a general lien” ) to detain and hold onto a customer’s vessel or other property pending payment by the customer in full sums due to us. We shall be entitled to charge the customer for storage and the provision of any ongoing services at our normal daily rates until payment (or provision of security) by the customer and removal of the vessel or property from our premises. The customer shall be entitled to remove the vessel or other property upon providing proper security, for example a letter of guarantee from a Bank reasonably acceptable to us or lodgement of a cash deposit with a professional third part agent reasonably acceptable to us, sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for our prospective legal costs. This right does not affect the customer’s entitlement to withhold a proportionate part of the price in respect of alleged defects but where that amount is in dispute between us the customer shall be required to provide security for the full amount pending resolution of the dispute.

5.4 Our customers’ attention is drawn also to the note at Clause10.2 of these Terms of Business regarding other rights which exist at law.

6 RETENTION OF TITLE / RISK

6.1 Title to all goods, equipment and materials supplied by us to a customer shall remain with us until full payment has been received by us.

6.2 Risk in all goods, equipment and materials supplied by us to a customer shall pass to the customer at the time of supply to the customer.

7 GUARANTEE

7.1 Advice on whether a customer is “a consumer” or otherwise protected by some or all of the consumer protection legislation in force in the United Kingdom may be obtained from any local Trading Standards Office, the Citizens Advice Bureau, the Office of Fair Trading or any firm of solicitors (who may charge).Online guidance may be obtained at www.adviceguide.org.uk.

7.2 A customer who is a consumer has certain minimum statutory rights regarding the return of defective goods and claims for losses. These rights are not affected by these terms.

7.3 In addition to the statutory rights provided by English law we guarantee our work for a period of 12months from completion against all defects which are due to poor workmanship or defective materials supplied by us. This guarantee applies only to the customer to whom the work or materials were supplied. We shall be liable under this guarantee only for defects which appear during this12 month period and which are promptly notified to us in writing at our trading address or registered offices on our letterhead. The geographical area within which this guarantee will be honoured is restricted to the United Kingdom.

7.4 On notification by the customer of such defects, we will investigate the cause and if they are our responsibility under the terms of this guarantee we will promptly remedy them or, at our option, employ other contractors to do so. Any remedial work which is put in hand by the customer directly without first notifying us and allowing us a reasonable opportunity to inspect and agree such work and its cost will invalidate this guarantee irrespective those defects.

7.5 Where we supply goods or services to a partnership or company or to a customer who is acting in the course of a business or commercial operation (a “Business Customer”) then:

7.5.1 no article supplied by us to a Business Customer shall carry any express or implied term as to its quality or its fitness for any particular purpose unless prior to the supply a Business customer has sufficiently explained the purpose for which it is Required and made it clear that he is relying on our skill and judgement;

7.5.2 no proprietary article specified by name, size or type by a Business Customer shall carry any such express or implied term but we will assign to the Business Customer any rights we may have against the manufacturer or importer of that article; and

7.5.3 we accept no liability to indemnify a Business Customer against any loss of profit or turnover which he or his customer or another person may sustain in consequence of the failure of any faulty or unfit article supplied by us.

8 QUALITY STANDARDS

8.1 We will complete our work to the agreed specification and, in the absence of any other contractual term as to quality, to a satisfactory quality.

9 ACCESS TO PREMISES / WORK ON THE VESSEL

9.1 No work or services shall be carried out on a vessel, gear, equipment or other property on our premises without our prior written consent (which consent shall not be unreasonably withheld or delayed) except for minor running repairs or minor maintenance of a routine nature by the customer or his regular crew. It shall be an absolute condition that all work is carried out in full compliance with our health and safety, environmental and access policies and that it does not cause any nuisance or annoyance to us, any other customer or person residing in the vicinity, and does not interfere with our schedule of work or the good management of our business and our said consent to work or services being carried out may be revoked with immediate effect in the event of any breach of such conditions. We shall not be responsible to customers or third parties for the consequences of any person’s failure to respect any part of this clause 9.1 but we shall be entitled to demand the immediate cessation of any work which in our view breaches the requirements of this clause.

9.2 While we or our subcontractors are working on a customer’s vessel or equipment the customer shall not have access to it except by prior arrangement. We will agree reasonable access when it is safe to do so and when it will not interrupt or interfere with our work schedule.

10 RIGHT OF SALE

10.1 We accept vessels, gear, equipment and other property for repair, refit, maintenance or storage subject to the provisions of the Torts (Interference with Goods) Act1977. This Act

Confers a Right of Sale on us in circumstances where the customer fails to collect or accept re-delivery of the goods (which includes a vessel and any other property). A sale will not take place until we have given notice to the customer in accordance with the Act. For the purposes of the Act its recorded that:

10.1.1 goods for repair or other treatment are accepted by us on the basis that the customer is the owner of the goods or the owner’s authorised agent and that he will take delivery or arrange collection when the repair or treatment has been carried out;

10.1.2 our obligation as custodian of goods accepted for storage ends when we give notice to the customer;

10.1.3 the place for delivery and collection of goods shall normally be at our premises. Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause7.1 above.

10.2 Maritime Law entitle sus in certain circumstances to bring action against a vessel to recover a debt or damages. Such action may involve the arrest of the vessel through the Courts and its eventual sale by the Court. This right to arrest and sale may continue to exist against a vessel after a change of ownership. Sale of a vessel or other property may also occur through the enforcement of a court order or judgement.

11 SUBCONTRACTING

11.1 We my subcontract all or part of the work entrusted to us by the customer, on terms that any such subcontractor shall have the protection and benefit of all rights and conditions, and of all limitations and exclusions of liability, which exist for us under these Terms of Business. Where we exercise this right we shall remain responsible to the customer for the performance of our subcontractor.

12 NOTICES

12.1 Notice to a customer shall be sufficiently served if personally given to him or if sent by first class post to the customer’s last known address. Notices to us should be sent by first class post to our principal trading address or registered office.

13 LAW AND JURISDICTION

13.1 Any contract or series of contracts made subject to these terms and any non-contractual obligations arising out of, or in connection, therewith shall be governed by and construed in accordance with English law.

13.2 Each of the parties irrevocably agrees that any and every dispute (and any non-contractual obligations, as aforesaid) arising out of or in connection with a contract or series of contracts subject to these terms shall:

13.2.1 if one party acts as consumer (meaning a natural person acting for purposes outside of a trade, business or profession),be subject to the non-exclusive jurisdiction of the English courts; or

13.2.2 where no party acts as consumer, be subject to the exclusive jurisdiction of the English courts.

14. DISPUTE RESOLUTION SCHEME

14.1 The BMF and the RYA recommend that disputes arising out of or in connection with a contract or series of contracts subject to these terms, when they cannot be resolved by negotiation, be submitted with the written agreement of the parties, to mediation under the BMF’s Dispute Resolution Scheme.

Details of the Scheme are available at www.britishmarine.co.uk/drs.Publishedby the British Marine Federation and in consultation with the RYA,