Terms and Conditions and Limitations of Survey.
Standard Terms & Conditions of Survey.
It is to be clearly understood that the condition/state of items reported upon are strictly the opinion of the attending surveyor(s) and that opinion reflects the condition/state found on the date of survey, taking into consideration the vessel’s age and that items reported upon are described in comparison with vessels of a similar age and type. The report will be prepared specifically for the client(s), and is for their use only, but remains the copyright of Marine Survey New Zealand Limited (MSNZ). Copies in whole or in part should not be released to, or consulted by, other parties without the express prior permission of MSNZ. Whilst all due care and diligence will be exercised in the collection of data for and the preparation of the report, MSNZ purports to provide an advisory service only, based on the opinion and experience of the individual consultant responsible for its compilation. MSNZ issues such advice in good faith and without prejudice nor guarantee. Anyone wishing to rely on such opinion should first satisfy themselves as to its accuracy and feasibility. MSNZ shall not be liable for any loss (including indirect and consequential loss), damage, delay, and loss of market, costs, and expenses of whatsoever nature or kind and however sustained or occasioned. Notwithstanding the aforementioned, notice of a claim or suit must be made to MSNZ in writing within 90 days of the date the services were first performed or the date the damages were first discovered, whichever is the latter, failing which lack of notice shall constitute an absolute bar to the claim or suit against MSNZ.
The survey will be a factual report on the inspection carried out, and the opinions expressed will be given in good faith as to the condition of the vessel as seen at the time of the survey. It will imply no guarantee, no safeguard against latent defects, subsequent defects, or defects not discovered at the time of the survey in woodwork, fibreglass, or areas of the vessel which are covered, unexposed, or not accessible to the surveyor internally due to the installation of non-removable linings, panels and internal structures, etc. The survey will be visual in nature only. MSNZ accepts no responsibility or liability in relation to any part of the vessel which cannot be accessed or viewed. MSNZ cannot comment in relation to any patent or latent damage relating to areas not examined.
This report carries no warranty regarding ownership of the vessel or any warranty regarding outstanding mortgage, charge or other debt there may be on the vessel. The survey is personal and confidential to our client and has no extended warranty if disposed of to a third party for any purpose without the permission of MSNZ.
The report will not address stability, vessel performance or overall design, and no warranty is conveyed under these headings. Machinery will not be opened up for inspection or compression tests carried out. No chemical tests will be carried out on fuel or water. For sailing vessels rigging at deck level only will be commented on. An expert should be appointed if a full rigging survey is required. Liability will be limited to and never to suceed five times the surveyor’s fees for the inspection of the surveyed vessel, or $15000.00 (NZD), which ever is the greater.
Our invoice is payable prior to delivery of our report. Please note that our reports are the copyright of MSNZ. If payment for our services is not forthcoming you are advised that copyright is withheld. You may not use, copy, disseminate or action the advice and recommendations given in the report until payment has been received at which time a release will be issued.
These standard trading terms, all agreements and disputes relating thereto, shall be governed by and interpreted in accordance with New Zealand Law.
“Surveyor” is the Surveyor trading under these conditions.
“Client” is the party at whose request or on whose behalf the Surveyor undertakes surveying services.
“Report” means any report or statement supplied by the Surveyor 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, refreshments and hotel accommodation where an overnight stay is necessary.
"Fees" means the fees charged by the Surveyor to the Client and include any value added tax where applicable and any disbursements.
The Surveyor shall provide its services solely in accordance with these terms and conditions.
The Client will set out in writing the services which they require the Surveyor to provide. The Surveyor will confirm in writing that he accepts these instructions, or alternatively what services he will perform in connection with the Client's instructions. Once the Surveyor and the Client have agreed what services are to be performed any subsequent changes or additions must be agreed by both parties in writing.
4. Payment Terms
The Client shall pay the Surveyor Fees prior to release of the Survey report. Any delay in payment shall entitle the Surveyor to interest at 4% above the Base Lending Rate of Kiwi Bank plc prevailing at the time of default.
5. Obligations and Responsibilities
The Client undertakes to ensure that full instructions are given to the Surveyor 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 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 shall not be liable for the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions.
The Surveyor shall use reasonable care and skill in the performance of the services in accordance with sound marine surveying practice.
The Surveyor shall submit a final written Report to the Client following completion of the agreed services describing the Surveyor’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.
The Surveyor 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 save where required to do so by an order of a competent court of law.
The right of ownership in respect of all original work created by the Surveyor remains the property of the Surveyor.
(f) Conflict of Interest/Qualification
The Surveyor shall promptly notify the Client of any matter including conflict of interest or lack of suitable qualifications and experience, which would render it undesirable for the Surveyor to continue his involvement with the appointment. The Client shall be responsible for payment of the Surveyor Fees up to the date of notification.
(a) Without prejudice to Clause 7, 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 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 was caused by the negligence, gross negligence or wilful default of the Surveyor aforesaid, then, save where loss, damage, delay or expense has resulted from 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 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 five times the Surveyor's/Consultant's charges or $15,000.00 (NZD) whichever is the greater. The Surveyor 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 would be liable under Clause 6, the Client hereby undertakes to keep the Surveyor 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 brought 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 may suffer or incur (either directly or indirectly) in the course of the services under these Conditions.
8. Force Majeure
Neither the Surveyor nor the Client shall, except as otherwise provided in these Conditions, 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, riots, civil commotions and arrest or restraint of princes, rulers or people.
9. Surveyor’s/Consultant’s Right to Sub-contract
The Surveyor 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 the
Surveyor shall remain fully liable for the due performance of its obligations under these Conditions.
10. Time Bar
Any claims against 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 to the Client.
11. Jurisdiction and Law
These Conditions shall be governed by and construed in accordance with New Zealand law and any dispute shall be subject to the exclusive jurisdiction of the Courts of New Zealand.
Limitations of Survey