EMS Towage Limited Standard Terms and Conditions
1. Definitions
• “Surveyor”/“Consultant”/“Contractor”: The Surveyor/Consultant/Contractor Member trading under these conditions.
• “Client”: The party at whose request or on whose behalf the Surveyor/Consultant/Contractor undertakes services.
• “Report”: Any report or statement supplied by the Surveyor/Consultant/Contractor in connection with instructions received from the Client.
• “Service”: Any service or task supplied or executed by the Surveyor/Consultant/Contractor in connection with instructions received from the Client.
• “Disbursements”: 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 an overnight stay is necessary.
• “Fees”: The charges levied by the Surveyor/Consultant/Contractor for the services provided, including value-added tax (where applicable) and Disbursements.
• “Agreement”: The contract formed between the Surveyor/Consultant/Contractor and the Client, governed by these terms and conditions.
2. Scope
The Surveyor/Consultant/Contractor shall provide its services solely in accordance with these terms and conditions.
3. Work
The Client will set out in writing the services it requires the Surveyor/Consultant/Contractor to provide. The Surveyor/Consultant/Contractor will confirm in writing that it accepts those instructions or, alternatively, specify the services it will perform. Once agreed, any subsequent changes or additions to the scope of services must be agreed upon by both parties in writing.
4. Payment
The Client shall pay the Surveyor/Consultant/Contractor’s Fees punctually in accordance with these Conditions and no later than 14 days following the relevant invoice date, unless otherwise agreed in writing.
If the Client disputes any portion of an invoice, the undisputed amount must still be paid within the agreed timeframe while the dispute is resolved. Any delay in payment shall entitle the
Surveyor/Consultant/Contractor to interest at 8% above the Base Lending Rate of the Bank of England prevailing at the time of default.
5. Obligations and Responsibilities
(a) Client: The Client shall ensure full and timely instructions are given to the Surveyor/Consultant/Contractor to enable the required services to be performed effectively. The Client shall also provide necessary access to goods, premises, vessels, installations, and transport and ensure appropriate safety measures are in place. The Surveyor/Consultant/Contractor shall not be held liable for consequences arising from late, incomplete, inadequate, inaccurate, or ambiguous instructions.
(b) Surveyor: The Surveyor/Consultant/Contractor shall exercise reasonable care and skill in the performance of services in accordance with sound marine surveying and consulting practices.
(c) Reporting: The Surveyor/Consultant/Contractor shall submit a final written Report describing findings and recommendations unless instructed otherwise in writing by the Client.
(d) Confidentiality: The Surveyor/Consultant/Contractor undertakes to keep all Client information confidential, except where disclosure is required by law.
(e) Property: Ownership of original work created by the Surveyor/Consultant/Contractor shall remain the property of the Surveyor/Consultant/Contractor.
(f) Conflict of Interest/Qualification: The Surveyor/Consultant/Contractor shall promptly notify the Client of any conflicts of interest or lack of qualifications that could impact the appointment. Fees incurred up to the date of such notification remain payable by the Client.
6. Liability
(a) Without prejudice to Clause 7, the Surveyor/Consultant/Contractor shall not be liable to the Client for any loss, damage, delay, or expense of any nature, whether direct, indirect, or consequential, arising out of or in connection with the services provided, unless such loss, damage, delay, or expense is proven to have resulted solely from the negligence, gross negligence, or wilful misconduct of the Surveyor/Consultant/Contractor, its employees, agents, or subcontractors.
(b) In the event the Client establishes that such loss, damage, delay, or expense was caused by the negligence, gross negligence, or wilful misconduct of the Surveyor/Consultant/Contractor, the Surveyor/Consultant/Contractor’s liability for each claim or series of claims arising out of the same incident shall be limited to the greater of:
• Ten (10) times the total fees paid or payable for the services under this agreement; or
• £100,000.
(c) The Surveyor/Consultant/Contractor shall not, under any circumstances, be liable for:
• Loss of profit, loss of revenue, loss of business, or any indirect, special, or consequential losses; or
• Physical loss or damage to property or equipment provided by the Client, unless such loss or damage is
proven to have resulted from the Surveyor/Consultant/Contractor’s gross negligence or wilful misconduct.
(d) Nothing in these Conditions shall exclude or limit the liability of the Surveyor/Consultant/Contractor for death or personal injury caused by its negligence, or for any other liability that cannot be lawfully excluded or limited.
7. Indemnity
The Client shall indemnify and hold harmless the Surveyor/Consultant/Contractor, its employees, agents, and subcontractors against all claims, liabilities, and expenses arising out of or in connection with the services provided, except to the extent covered under Clause 6.
The Client shall ensure that the Surveyor/Consultant/Contractor, while serving onboard a vessel as part of the crew complement or as a supernumerary, is covered under the Client’s P&I Insurance and Public Liability Insurance for the duration of their service.
8. Force Majeure
The Surveyor/Consultant/Contractor and/or the Client shall not be responsible or liable for any loss, damage, delay, or failure in performance caused by force majeure events, including but not limited to acts of God, war, terrorism, strikes, or pandemics.
In the event of termination due to force majeure, the Client remains liable for fees and disbursements incurred up to the date of termination.
9. Insurance
The Surveyor/Consultant/Contractor shall maintain Professional Liability Insurance at no cost to the Client for losses or damages for which it may be held liable under these terms and conditions.
10. Surveyor's/ Consultant's / Contractor’s Right to Sub-contract
The Surveyor/Consultant/Contractor may sub-contract any services under these terms, subject to the Client’s right to object on reasonable grounds. The Surveyor/Consultant/Contractor remains fully liable for its obligations.
11. Time Bar
Claims against the Surveyor/Consultant/Contractor shall be deemed waived and absolutely time-barred after one year from the submission of the final Report.
12. Jurisdiction and Law
These Conditions shall be governed by and construed in accordance with the laws of England and Wales. Any disputes shall be subject to the exclusive jurisdiction of the English Courts.
EMS Towage Limited 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 EMS Towage Limited, Companies House Registration SC 82955 of registered address 32-34 High Street, Sanquhar, Dumfries and Galloway, DG4 6BL, United Kingdom.