1. Scope
By instructing Beaufort Marine Services LLP (“BMS” being the short form used herein) and continuing to deal with us regarding any matter where we are acting on your behalf, you are deemed to have read, understood and agreed to these conditions. If you are an intermediary or agent instructing us on behalf of Principals, you undertake to bring these conditions to the attention of your Principals and procure their acknowledgment and agreement to these conditions. The Consultant/Surveyor from BMS shall provide services solely in accordance with these terms and conditions.
2. Definitions
“Consultant” is the Consultant from BMS providing services under these conditions.
“Surveyor” means the Surveyor from BMS providing services under these conditions
“Client” is the party at whose request or on whose behalf BMS/the Consultant/Surveyor undertakes services.
“Report” means any report or statement supplied by BMS 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 an overnight stay is necessary.
“Fees and/or Charges” means the fees charged by BMS / Consultant / Surveyor to the Client and including any tax where applicable and any Disbursements
3. Work/Services
The Client will set out in writing the services which it requires BMS to provide. BMS/ the Consultant/Surveyor will confirm in writing that it accepts those instructions or alternatively what services it will perform relating to the Client’s instructions. Once BMS/the Consultant/Surveyor and the Client have agreed what services are to be performed (the Services) any subsequent changes or additions must be agreed by both parties in writing. For the avoidance of doubt, if the instructions are not provided in writing but BMS/the Consultant /Surveyor nevertheless confirms their acceptance of these, the services will be provided in accordance with these conditions, including reasonable addition/ changes, if any.
4. Payment
The Client shall pay BMS/the Consultant/Surveyor Fees and/or Charges and Disbursement expenses punctually in accordance with these Conditions and in any event not later than 14 days following the relevant invoice date, or in such other manner as may have been agreed in writing between both the parties. Any delay in payment shall entitle the BMS/the Consultant/Surveyor to charge interest at 1% above the Prime Lending rate prevalent in India at the time of default.
The Fees or Charges mentioned above are those which are agreed upon with the Client. They may take the form of one or a combination of the following as agreed upon with the Client on a case by case basis;
(a) Hourly rate work/case
(b) Daily rate work/case
(c) Retainer or other combination of fees (e.g. as per (a) and (b) together on case by case basis) as agreed upon for a fixed period of time with the client.
(d) Contingency Cases (e.g. where fee payable will be a percentage of the total of all amounts received by settlement, arbitration award or judgement and interest in respect of any claim, plus all of any sum awarded and recovered by way of recoverable costs as agreed with the client)
5. Obligations and Responsibilities
(a) Client: The Client undertakes to ensure that full instructions are given to BMS/the Consultant/Surveyor and that these are provided in sufficient time to enable the required Services to be performed effectively and efficiently and to procure all necessary access for the 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. BMS/the Consultant/Surveyor shall not be liable for the consequences of late, incomplete, inadequate, inaccurate, unlawful or ambiguous instructions.
(b) BMS/the Consultant/Surveyor shall use reasonable care and skill in the performance of the instructed services.
(c) Reporting: BMS shall submit a final written Report to the Client following completion of the agreed Services describing the 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) Destruction of documents: : At the conclusion of a matter BMS/Consultant will review our file and discard any, which in its opinion are unnecessary additional copies of documents, then send the balance of the file to an off-site facility for storage at our expense, unless you request us to deliver the original documents to yourself. We will have to retain a copy for our own records. To minimise the storage expenses, we reserve the right, subject to your written contrary direction,
to retain files for only two years from the completion of the matter and to destroy older files to the extent practical. If you wish us to handle the disposition of files in a different manner, please let us know in writing. Otherwise we will proceed as set forth above.
(e) Confidentiality: The Consultant undertakes not to disclose any information expressly 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 save where required to do so by an order of a competent court of law or authority.
(f) Property: The right of ownership in respect of all original work created by BMS/the Consultant/the Surveyor remains the property of BMS/the Consultant/the Surveyor.
(g) Conflict of Interest/Qualification: BMS/the Consultant/the Surveyor shall promptly notify the Client of any matter, including conflict of interest or lack of suitable qualifications and experience, which in the opinion of BMS, could render it undesirable and/or may cause any conflict of interest in the business/services of BMS/Consultant for BMS/the Consultant/the Surveyor to continue its involvement with the appointment. The Client shall be responsible for payment of BMS/the Consultant/ Surveyor’s Fees up to the date of notification.
(h) BMS will, if deemed possible to protect the interest of both parties, give the client 5 days’ notice of any intention to discontinue work on the matter.
6. Liability
(a) Without prejudice to Clause 7, BMS/the Consultant/the Surveyor 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 BMS/the Consultant/the Surveyor or any of its employees or agents or sub-contractors.
(b) In the event that the Client proves that the loss, damage, delay or expense suffered was caused by the sole negligence, gross negligence or willful default of BMS/the Consultant/the Surveyor aforesaid, then, save where loss, damage, delay or expense has resulted from BMS/the Consultant’s/the Surveyor’s 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 BMS’s/Consultant’s/Surveyor’s 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 three times BMS/the Consultant’s/the Surveyor’s charges or INR 100000.00, whichever is greater.
(c) BMS/the Consultant/the Surveyor will not be liable, under any circumstances for indirect, pure economic and/or, consequential losses. Furthermore, BMS/the Consultant/the Surveyor will not have any liability for loss of profits or loss of reputation, whether such losses are direct or indirect.
(d) Without prejudice to (a) and (b) above, BMS/the Consultant /the Surveyor shall not be liable for loss of or damage to physical equipment and property placed at its disposal by, or on behalf, of the Client however such loss or damage occurs, unless such loss or damage was caused by act or omission committed with intent to cause same or recklessly with knowledge that such loss or damage would probably result.
7. Indemnity
Except to the extent and solely for the amount therein set out that BMS/the Consultant/Surveyor would be liable under Clause 6, the Client hereby undertakes to keep BMS/the Consultant/Surveyor and its employees, agents and subcontractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them, and against and in respect of all costs, loss, damages and expenses (including, but not limited to, legal costs and expenses on a full indemnity basis) which BMS/ Consultant/Surveyor may suffer or incur (either directly or indirectly) in the course of the Services under these Conditions.
8. Force Majeure
BMS/the Consultant/Surveyor shall not, except as otherwise provided in these Conditions, be responsible or have any liability for any loss, damage, delay or failure in performance hereunder arising or resulting from any act of God (including, but not limited to earthquake, flood, tsunami, volcano, hurricane, tropical storm, cyclone, blizzard, fire or other similar event), act of war, terrorist attack, nuclear contamination, seizure under legal process, epidemic quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people, failure of a utility service or transport network, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, or default of suppliers or subcontractors. Following a force majeure event either party may serve notice on the other to terminate the agreement.
9. BMS Right to Sub-contract
BMS shall have the right to sub-contract any of the services provided under the Conditions, subject to the Client’s right to object on reasonable grounds. In the event of such a sub-contract BMS/the Consultant/Surveyor shall remain fully liable for the due performance of its obligations under these Conditions.
10. Time Bar
Any claims against BMS/the Consultant/the Surveyor 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 and/or the final Invoice to the Client, (or, if no report is issued, the date on which the report would have been issued or the date on the final invoice), and suit is brought against BMS/the Consultant/the Surveyor in the proper forum and valid notice thereof is received by the BMS/the Consultant/the Surveyor.
11. Jurisdiction and Law
These Conditions shall be governed by and construed in accordance with the laws of India and any dispute shall be subject to the exclusive jurisdiction of the Indian Courts. However, BMS/the Consultant/ Surveyor may exercise their rights to enforce any term of the contract in any jurisdiction as they feel, in law, fit.
12. BMS Anti-Bribery and Corruption Policy
BMS and any of its associated, affiliated and subsidiary companies is committed to carrying out business fairly, honestly and openly and has a zero-tolerance approach to bribery and corruption.
BMS prohibits the offer, promise, giving, solicitation or acceptance of any bribe, whether a financial or other advantage, directly or through a third party, to any person or company or public official by any individual employee, agent or person who performs services or acts on behalf of BMS.