STANDARD MARINE & CARGO SURVEY (ASIA) LIMITED
Unless otherwise agreed in a written contract, STANDARD MARINE & CARGO SURVEY ( ASIA ) LIMITED services will be performed under the following general terms and conditions:
" SMSL" means Standard Marine & Cargo Survey ( Asia ) Limited, a surveying company registered in the Hong Kong S.A.R.
" Principal " means the person or company from whom the instructions to act have been received. As is described in clause 2 below, SMSL may act in any inspection either for a sole principal or for joint principals. The term Principal when used in these terms and conditions shall, in relation to an instruction in which SMSL acts for joint principals, refer to SMSLs joint principals jointly and severally.
1 SMSL provides inspection services to its Principal. It performs inspections, verifications, examinations, tests, sampling, measurements, tank calibrations and similar operations. In addition, SMSL provides advisory, consultancy, computer software and other services in connection with such matters. The results of SMSL’s inspection and testing procedures are provided to its Principal in reports and certificates.
2.1 SMSL will act either on behalf of a sole principal or two or more principals. The principal or principals are the parties to whom SMSL addresses its Confirmation of Instruction, a written confirmation which SMSL sends out whenever a new instruction is accepted.
2.2 If the Confirmation of Instruction is addressed to a single individual or company then SMSL’s services will be performed for that addressee as sole principal. If the Confirmation of Instruction is addressed to more than one individual or company then SMSL’s services will be performed for those address as joint principals.
2.3 When SMSL acts for joint principals an agreement will be reached about the proportion in which those joint principals are responsible for SMSL’s fees.
2.4 Joint principals will be jointly and severally liable for the obligations described in paragraphs 3, 4 and 12 below.
3 SMSL will perform services in accordance with the Principal’s specific instructions, relevant industry standards and trade customs, and such other methods as may be considered technically suitable by SMSL.
4 The Principal will ensure that instructions are issued to SMSL in due time to enable the required services to be performed effectively. The Principal will ensure that installations, ships, refineries, etc are aware of the instructions of SMSL and that the inspectors will be permitted to execute them without hindrance. SMSL cannot be held responsible for total or partial non-execution of the Principal’s instructions which cannot be executed due to limitations placed on its performance by third parties. In the event of SMSL being totally or partially prevented from the performance of the required service by any cause whatsoever which is outside SMSL’s control, SMSL shall immediately be relieved of all responsibility whatsoever for the partial or total non-performance of the required service and the Principal shall pay to SMSL all expenses incurred by SMSL until cessation of the service being performed. The Principal shall ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services.
5 SMSL is entitled in its absolute discretion to delegate the performance of all or any part of the services to an agent or subcontractor. SMSL is authorized b y the Principal to disclose to its appointed agents and subcontractors any and all information and documentation which is reasonably necessary in order to enable the performance of the services.
6 The contract between SMSL and its Principal will not be affected by any contract between the Principal and any third party including without limitation any contract of sale, purchase or supply, any letter of credit or other trade finance contract and any bill of lading or other document of title. If SMSL receives a copy of such a contract, or any document which describes the terms of such a contract, then it will receive it for information only.
7 SMSL, its agents, subordinates and representatives will use reasonable care and skill in performing the services it provides to the Principal. It shall be under no liability to the Principal other than for claims arising through negligence, recklessness or willful misconduct, the burden of proof being upon the Principal.
8.1 The liability of SMSL in respect of any claim for loss, damage or expense of any nature and however arising is limited to a total aggregate sum equal to ten times the amount of the fee paid in respect of the specific service which gives rise to the claim. Where the fee payable relates to a number of services and a claim arises in respect of one of those services the fee shall be apportioned for the purposes of this clause by reference to the estimated time involved in the performance of each service. SMSL shall be under no liability whatsoever to the Principal for any claims arising in respect of any service unless the Principal gives written notice to SMSL within 45 days of the inspection performed by SMSL alleged to justify such claim. In any event SMSL will be absolutely released from any and all liability whatsoever in relation to the performance of services unless suit is brought within one year of the date on which the services were or (in the event of non-performance) should have been performed.
8.2 For the avoidance of doubt, when SMSL acts for joint principals in performance of a particular instruction then the limit of liability to each of those principals described in clause 8.1 above will be ten times the proportion of SMSL’s fee for that service which that individual principal is liable to pay. In no circumstances will SMSL’s aggregate liability to all of its joint principals in any inspection service exceed ten times the sum paid in total by those joint principals in respect of the specific service which gives rise to the claim.
9 SMSL will have no liability whatsoever for any indirect or consequential loss, including without limitation loss of profits, loss of business and loss of use or production.
10 SMSL will have no liability to the Principal in respect of and no obligation to indemnify the Principal against claims made by any third party against the Principal or, in the case of services performed by SMSL for joint principals, any claim by one of these principals against another.
11 Where SMSL is requested to witness the execution of tests in a third party laboratory, the responsibility of SMSL is limited to a SMSL representative attending during testing and ascertaining that, in SMSL’s opinion, the tests are carried out on the correct sample. All apparatus, instrumentation and measuring devices are assumed to be in calibration and good working order. Reagents and standards are accepted as utilized. The laboratory technicians are assumed qualified . SMSL accepts no responsibility for the accuracy o f the results, which remain the sole responsibility of the third party laboratory.
12 The Principal shall indemnify SMSL, its officers, servants, agents and sub-contractors against all claims made by any third party in respect of performance or non-performance of services rendered to the Principal in accordance with instructions from the Principal.
13 Samples taken by SMSL will be retained for a maximum period of three months, or a shorter period if the properties of the sample are such that SMSL considers in its absolute discretion that the sample should be retained for less than three months. At the end o f the retention period SMSL will dispose of the samples.
14 SMSL will issue reports and certificates of inspections which reflect the results of the testing and/or investigation services performed by SMSL within and subject to the limitations of the instructions received from the Principal.
15 The Principal shall pay invoices issued by SMSL promptly upon receipt, but in any event not later than 30 days from the date of the invoice, unless otherwise agreed. Failing prompt payment of said invoice, interest shall become due at the rate of 5 per cent per month from the date of the invoice until payment is received.
16 If any of these terms or conditions, or any part of any of these terms and conditions, is found by a court or tribunal of competent jurisdiction to be illegal, invalid or unenforceable then the remainder of the terms and conditions will remain in full force and effect.
17 These conditions and any contract to which they apply shall be governed by Hong Kong law and any dispute arising out of any contract to which these conditions apply shall be subject to the jurisdiction of the Hong Kong courts.