1. Definitions
“Surveyor”/”Consultant” is the Surveyor/Consultant trading under these conditions.
“Client” is the party at whose request or on whose behalf the Surveyor/Consultant undertakes Services.
“Report” means any written or oral report or statement supplied by the Surveyor/Consultant in connection with instructions received from the Client.
“Services” means the scope of work set out in writing, accepted and performed by the Surveyor/Consultant.
2. Scope
These conditions shall govern all responsibility and liability for Services between the Surveyor/Consultant and Client. The Surveyor/Consultant shall have the right to sub-contract any of the Services, subject to the Client’s right to object on reasonable grounds. In the event of such a sub-contract the Surveyor/Consultant shall remain liable as herein for the due performance of the Services under these conditions. A person who is not a party to this agreement has no right to enforce any term hereunder.
3. Work
The Client will set out clearly in writing the Services which it requires the Surveyor/Consultant to provide. Any subsequent changes or additions must be agreed by both parties in writing. The Surveyor/Consultant shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions of the Services required.
4. Obligations and Responsibilities
The Surveyor/Consultant shall use reasonable care and skill in the performance of the Services. Any Report is based upon opinion only given at the relevant time of the Services and does not form a representation of fact or guarantee. Any paperwork, including any Report, shall not be construed as a certification of suitability, quality, quantity or compliance with any rule, regulation or law howsoever described.
5. Liability
(a) Without prejudice to Clause 6, 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 willful default of the Surveyor/Consultant 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 was caused solely from the negligence, gross negligence or willful default of the Surveyor/Consultant, then, save where loss, damage, delay or expense has resulted from the Surveyor/Consultant intent to cause same recklessly and with knowledge that such loss would probably result, the Surveyor/Consultant liability hereunder shall never exceed a sum calculated on the basis of ten times the fees charged by the Surveyor/Consultant for the relevant Services or GB£250,000 whichever the lesser.
6. Indemnity
Except to the extent that the Surveyor/Consultant would be liable under Clause 5, the Client hereby undertakes to keep the Surveyor/Consultant and its employees, agents and sub-contractors indemnified and to hold them harmless against all claims which may be brought against them which the Surveyor/Consultant may incur, either directly or indirectly, in the course of providing the Services. The Client agrees to release, defend, indemnify and hold harmless Surveyor/Consultant from and against any and all claims arising out of performance of Services, regardless of fault, involving personal injury, illness, or death of any member of the Client, its employees, agents and sub-contractors.
7. Force Majeure
Neither the Surveyor/Consultant nor the Client shall be responsible for any loss, damage, delay or failure in performance hereunder arising or resulting from an act of God, act of war, seizure under legal process, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest.
8. Consequential Loss
Neither party shall be liable to the other party, under contract or otherwise, for any indirect, incidental, consequential, special, punitive, exemplary or liquidated damages including, without limitation, loss of profit, loss of product, loss or inability to use property, or business interruption howsoever described.
9. Time Bar
Any claim 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 date of the performance of the relevant Services to the Client.
10. Jurisdiction and Law
These Conditions shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be subject to the exclusive jurisdiction of the English Courts.