and conditions of business
for the supply of advice and services from
yacht and small craft surveyors
1. Definitions The
Client the company, firm, person or persons with whom the
Agreement is made.
Josty Consulting the firm with which
The Agreement is drawn up and is responsible for supplying the services
The Agreement is between Josty Consulting
and The Client (constituted by the survey contract drawn up on page 1
of this document) and incorporating, inter alia, these terms and conditions.
Delegate a) employee or agent of
Josty Consulting b) any person to whom performance of work or services
under The Agreement is delegated or sub-contracted by Josty Consulting
c) any such person’s employees and agents
2. Assignment Neither party
shall transfer or assign its rights or obligations under The Agreement
without the prior written consent of the other.. The Client may transfer
any or all of its rights under The Agreement to any of its affiliate companies,
in which case The Client shall procure the acceptance by the assignee
of the terms, conditions, exceptions and exemptions of The Agreement.
3. Delegation. if Josty
Consulting considers it more efficient or convenient, it may in its discretion
procure advice, assistance and services, which it renders under The Agreement,
from other persons and may in its discretion delegate performance of one
or more of its obligations under The Agreement.
4. Payment (a) Outstanding
Payments shall be made within 14 days from the date of the
(b) The Agreement shall be subject, now or
in the future, to levies, taxes, or charges of whatever kind, in the country
in which The Client is incorporated and/or operating. The Client shall
pay such sums as shall yield to Josty Consulting after payment or withholding
of such levies, taxes, or charges, to the full amounts payable under The
(d) Overdue Payments shall bear compound
interest from due date until payment at a rate of 1.5% per week.
(e) Except where their are self-evident errors
in the invoice, payment shall be made by The Client notwithstanding any
dispute relating to the billings. Any adjustments consequent upon settlement
of such disputes shall be made within 30 days following the settlement.
(f) Where any payment becomes more than 60 days
overdue, Josty Consulting shall be entitled , without prejudice
to any of its other rights, to terminate The Agreement whereupon payment
will become immediately due for the value of work done up to that date.
5. Liability and Indemnity
(a) Josty Consulting shall perform The Agreement with all proper skills
and in accordance with the Code of Conduct of the International Institute
of Marine Surveyors.
(b) If any work or services under The Agreement are negligently performed
or omitted then, so far as may be reasonably practicable, Josty Consulting,
at its own expense, will cause such work and services to be correctly
(c) The Client shall not sue any Delegate for any loss or damage of any
nature whatsoever suffered by The Client and connected with performance
of The Agreement, The Client’s sole remedy shall be against Josty
Consulting under this clause.
(d) The total liability of Josty Consulting to The Client for breach of
The Agreement and the total third party liability of Josty Consulting
and Delegates shall not for any reason whatsoever (including negligence)
in aggregate over the duration of The Agreement exceed an amount equal
to ten (10) times the fees paid and payable by The Client to Josty Consulting.
Josty Consulting’s liability shall expire twelve months after
completion of the service in respect of which liability is alleged to
arise and thereafter Josty Consulting shall have no liability in
respect of that service and/or any alleged default in connection with
the provision thereof.
(e) If Josty Consulting or any Delegate does incur third party liability
of any nature whatsoever arising out of or connected with performance
of The Agreement then (subject to clause 5(f) in this statement) The Client
shall indemnify Josty Consulting, or such Delegate, against such third
party liability inter alia, sumptos, and this indemnity shall apply even
if the third party claim was based on negligence. Further to the extent
that Josty Consulting may have indemnified any Delegate against such third
party liability, costs or expenses (which Josty Consulting at its sole
discretion shall be entitled to do) then The Client shall thereupon be
liable to indemnify Josty Consulting accordingly.
(f) Where the reason for third party liability, mentioned in Clause 5(e)
was the negligence of Josty Consulting, or any Delegate, the The Client’s
indemnity under clause 5(e) shall apply above the limit of liability mentioned
in clause 5(d) and Josty Consulting shall be liable up to such limit.
(g) In entering into the agreement contained in clause 5, Josty Consulting
contracts both on its own behalf and as agent on behalf of Delegates and
also as trustee for their benefit.
(h) Neither party shall be liable to the other for indirect or consequential
damages resulting from or arising out of The Agreement including but not
limited to loss of use of property, loss of profits, loss of product or
(a) The Client undertakes to keep confidential any confidential information
disclosed to it by Josty Consulting and not to disclose the same
either complete or in part to any third party (including subsidiary companies,
holding companies or associate companies) without Josty Consulting’s
prior written approval, such undertaking to continue notwithstanding the
expiry or termination of The Agreement for so long as the information
in question has not:-
(i) Become part of the public knowledge or literature without default
on the part of The Client or
(ii) Been disclosed to The Client by the third party (other than one disclosing
on behalf of Josty Consulting) whose possession of such information is
lawful and who is under no secrecy obligation with respect to the same
(iii) For a period of 10 years from the date that The agreement terminates,
whichever is sooner.
(b) Josty Consulting shall undertake to keep confidential any confidential
information disclosed to it by The Client: and Josty Consulting shall
be liable to the same constraints as imposed by clause 6(a) on The Client.
7. Force Majeure
Neither party to The Agreement shall be in breach of any obligation hereunder
(other than the obligations of The Client to make payment of any monies
due to Josty Consulting) insofar as performance thereof has been delayed,
hindered, interfered with or prevented by any circumstances beyond its
8. Applicable Law and Arbitration
The proper law of The Agreement is English Law and English Law shall be
used for interpreting The Agreement and for resolving all claims or disputes
arising out of or connected with The Agreement (whether based on contract,
tort, or any other legal doctrine). Any such claim or dispute not settled
by negotiation shall be settled by arbitration in London under the rules
of the London Court of International Arbitration. The language of the
arbitration shall be English.