“Surveyor / Consultant” is the Surveyor / Consultant trading under these conditions.
“Agreement” means the Terms and Conditions as set out below.
“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, subsistence and hotel accommodation where overnight stay is required.
“Fees” means the fees charged by the Surveyor / Consultant to the Client and including any value added tax where applicable and any disbursements.
The Surveyor / Consultant shall provide its services solely in accordance with this Agreement.
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 or 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 on by both parties in writing.
Fees and Payment
a) The fees agreed between the Surveyor / Consultant and the Client for the services to be provided by the Surveyor / Consultant under this Agreement shall not include the Surveyor / Consultants disbursements which will be charged in addition to the fee.
b) Invoices will be submitted in for all Fees and Disbursements when due and the amount of each invoice shall be paid no later than 7 days following the relevant invoice date or in such other manner as may have been agreed upon in writing between the Surveyor / Consultant and Client. GST will be applicable in addition to all fees and Disbursements. Any delay in payment shall entitle the Surveyor / Consultant to interest at 4% above the base lending rate of the Commonwealth Bank of Australia prevailing at the time of default.
c) If the engagement of the Surveyor / Consultant is terminated for any reason other than a breach of the Agreement by the Surveyor / Consultant the Surveyor / Consultant shall be entitled to a pro rata payment for the services carried out and consequential costs and expenses incurred as a result of the termination for the period up to and including the date of termination.
d) If the Client disputes the whole or any parts of the amounts invoiced to it by the Surveyor / Consultant, the Client agrees to pay that part which is not in dispute and to notify the Surveyor / Consultant in writing of any reasons for disputing the unpaid part. If the parties are not able to reach an agreement within 14 days of notification of the dispute, then the dispute shall be in accordance with Clause 5.
If a dispute arises in relation to payment of Fees and Disbursements under this Agreement and the dispute cannot be resolved within 14 days of the notification of the dispute the parties to the Agreement agree to endeavour in good faith to settle the dispute by mediation administered by Australian Disputes Centre (ADC) and in the event that mediation is unsuccessful submit the dispute to arbitration.
a) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation which are operating at the time the dispute is referred to the ADC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are hereby deemed to be incorporated into the Agreement.
b) In the event that the dispute is not settled within 28 days after the appointment of the mediator, or any other period agreed to by both parties, the dispute will be submitted to arbitration administered by the ADC in accordance with ADC Rules for Arbitration operating at the time of the dispute which are hereby deemed to be incorporated into this Agreement.
c) The Arbitrator will not be the same person as the Mediator
d) This clause shall survive termination of this Agreement
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 services in accordance with sound marine surveying/consulting practices. It is agreed and understood that the Surveyor will report on the condition of the vessel so far as can be reasonably ascertained from a visual inspection for that vessel at the time and location of survey. It is further agreed and understood that during the survey, only those components or items that can be reasonably inspected under the conditions present at the time by the Surveyor / Consultant will be inspected. The Surveyor / Consultant cannot cover hidden, unexposed or inaccessible areas of the vessel or undertake to investigate areas that the Surveyor / Consultant believes to be inaccessible at the time of inspection.
c) Reporting: The Surveyor / Consultant shall submit a final written report to the Client following completion of the agreed services describing the Surveyor / 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) All services and reports are provided for the Client’s use only. No liability of any nature is assumed toward any other party and nothing in those terms, or the relationship between the surveyor and the client shall confer or purport to confer on any third party a benefit or the right to enforce provisions of these terms.
e) 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 in writing, save where required to do so by an order of a competent court of law.
f) Property: The right of ownership in respect of all reports and original work created by the Surveyor / Consultant remains the property of the Surveyor / Consultant.
g) Conflict of Interest/Qualification: The Surveyor / Consultant shall promptly notify the Client of any matter including conflict of interest or lack of suitable qualifications or experience which would render it undesirable for the Surveyor / Consultant to continue it’s involvement with the appointment. The Client will be responsible for the payment of the Surveyors/ /Consultants fees up to the date of notification.
a) Without prejudice to Clause 8, 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) Where the Competition and Consumer Act 2010 guarantees do not apply and in the event that the Client proves that loss, damage, delay or expense was caused by the negligence, gross negligence or wilful default of the Surveyor / Consultant aforesaid, then save where the loss, damage, delay or expense has resulted from the Surveyor / Consultants 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 Surveyors 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 Surveyors charges or AU $100,000.00 whichever is the greater.
c) Notwithstanding the terms set out in this Agreement, these conditions are subject to the Competition and Consumer Act 2010 as amended if and to the extent that this Act implies a guarantee into this agreement and prevents the exclusion, restriction or modification of any such guarantee. The liability of the Surveyor / Consultant, if any, for breach of any guarantee so implied (other than where the services are of a kind ordinarily acquired for personal domestic or household consumption) shall be limited at the option of the Surveyor / Consultant to:
i) The supply of the Services again, or
ii) The payment of having the Services supplied again
d) Valuations are based on opinions only and are not representations of fact, nor do they carry with them any guarantee of the particulars of information on which opinions are based. The Surveyor / Consultant shall use its best endeavours to provide a valuation which represents, in its opinion, the current market valuation as may be identified in the valuation report but no warranty as to the accuracy of such valuation is given.
e) 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.
Except to the extent and solely for the amount therein set out that the Surveyor / Consultant would be liable under Clause 7, 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 bought 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 this Agreement.
Neither the Surveyor / Consultant not the Client shall, except as otherwise provided in this Agreement, 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, civil commotions and arrest or restraint of princes, rulers or people.
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 this Agreement.
Surveyors / Consultants Right to Sub-contract
The Surveyor / Consultant shall have the right to sub-contact any of the services provided under this Agreement, subject to the Client’s right to object on reasonable grounds.
a) Any claim by the Client in respect of any breach of the Surveyors obligations under this Agreement must be notified to the Surveyor within three months after the Client becomes aware of the breach. Where any breach is capable of remedy, the Surveyor must be afforded a reasonable opportunity to put matters right at their expense.
b) 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.
Jurisdiction and Law
This Agreement shall be governed and construed in accordance with the laws of Australia and any dispute shall be subject to the exclusive jurisdiction of the Australian Courts.