Unless expressly otherwise agreed in writing, these terms and conditions shall apply to all offers, tenders, assignments and contracts, as well as to the execution of assignments by FORESIGHT SURVEYORS, as well as to anything that might arise as a result of or in connection with those offers and/or assignments.
1. SCOPE OF WORKS
The Client shall provide to FORESIGHT SURVEYORS all necessary information and specifications relating to the Client’s requirements for the project (“Scope of Works”). The nature and extent of the services which FORESIGH SURVEYORS provides to the Client shall be determined on the basis of this Scope of Works. The Scope of Works shall be fully documented and agreed upon by FORESIGHT SURVEYORS and the Client prior to the provision of the services.
2. PROJECT TEAM
FORESIGHT SURVEYORS will provide a Project Team capable of providing the services specified in the Scope of Works. Members of the Project Team may vary from time to time subject to availability, requirements of other FORESIGHT SURVEYORS projects; leave requirements, specific skill sets applicable to different stages of the project, and other factors which may arise from time to time.
The fees for the project will be based upon the hourly and/or fixed rates as agreed in writing between FORESIGHT SURVEYORS and the Client in respect of the provision of equipment, labour and ancillary services.
4. OPERATING HOURS
Standard operating hours are between 0800 hrs to 1700 hrs from Sunday to Thursday. Unless otherwise agreed between FORESIGHT SURVEYORS and the Client, FORESIGHT SURVEYORS will endeavour to complete all services during standard operating hours. If a situation arises which requires services to be provided outside the standard operating hours, reasonable attempts will be made by FORESIGHT SURVEYORS to gain prior approval from the Client.
5. COMMENCEMENT OF PROJECT
FORESIGHT SURVEYORS shall not be obliged to commence the Project until requested in writing to do so by the Client. Once Project has commenced the Client shall not cancel the Contract without compensating FORESIGHT SURVEYORS in full for the Work done to notification of cancellation together with a payment of 20 per cent of the Contract Price remaining.
6. EXECUTION AND COMPLETION OF PROJECT
FORESIGHT SURVEYORS will complete the Project in conformity with the Specification and the delivery dates agreed. FORESIGHT SURVEYORS will supply and provide for all matters necessary for the completion of the Project, at the expense of FORESIGHT SURVEYORS, except as specifically agreed between the parties. Where delivery is refused or where FORESIGHT SURVEYORS is unable to deliver due to circumstances beyond its control, FORESIGHT SURVEYORS is entitled to treat the Contract as being fulfilled and invoice the Client accordingly. Work which the Client reasonably considers fails to meet the standards contained in the Specification shall be returned to the FORESIGHT SURVEYORS within 30 calendar days of receipt for correction at FORESIGHT SURVEYORS own expense. If such Work is found, on being checked by the Surveyor, to be within the standards specified then the costs incurred by the FORESIGHT SURVEYORS in checking shall be payable by the Client.
7. CONSENTS AND APPROVALS
- FORESIGHT SURVEYORS will be entitled to assume that the Property is not subject to any unusual or onerous restrictions, obligations or covenants which apply to the Property or affect the reasonable enjoyment of the Property.
- FORESIGHT SURVEYORS will be entitled to assume that all approvals and other consents required from the Government Authorities in relation to the Project have been obtained. The FORESIGHT SURVEYORS will not verify whether such consents have been obtained. Any enquiries should be made by the Client or the Client’s legal advisers. Drawings and specifications will not be inspected by FORESIGHT SURVEYORS unless otherwise previously agreed.
FORESIGHT SURVEYORS will submit a final written Report to the Client following completion of the agreed services describing the FORESIGHT SURVEYORS 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 Client shall reimburse FORESIGHT SURVEYORS for all out of pocket expenses reasonably and properly incurred in connection with the services provided to the project. Such disbursements shall include but not be limited to consumables, air travel and freight, accommodation, title and survey searching fees, data license fees and the like.
10. PAYMENT TERMS
The Client shall pay the taxes and fees, including GST without any set-off or counterclaim whatsoever, to FORESIGHT SURVEYORS within thirty (30) calendar days of the date of the FORESIGHT SURVEYORS invoice. Invoices will be submitted by FORESIGHT SURVEYORS on either a weekly, bi-monthly or monthly basis, depending upon the nature of the project.
11. VARIATION TO COSTS
In the event that the Scope of Works for the provision of services is amended, FORESIGHT SURVEYORS shall be entitled to review the value of the fees previously agreed, and the Client shall be obliged to pay all additional costs associated with such amended scope as is agreed in writing between FORESIGHT SURVEYORS and the Client. FORESIGHT SURVEYORS will only accept variation work from the Client’s duly authorized representative. Where not instructed by the Client in writing, FORESIGHT SURVEYORS works docket shall effect the authorization that variation works have been carried out as described. Variation charges apply for meetings and/or briefings, calculations, plan checking, issue of RFI’s, field survey work, quality assurance checks and processes, plans and/or sketches, delivery of survey data and filing. The minimum site visit fee will also apply for variations.
12. OVERDUE PAYMENTS
FORESIGHT SURVEYORS shall be entitled to charge late fine of (in percentage of the invoice) per day on the outstanding fees. Late charges will not relieve the Client of the obligation to pay the outstanding fees.
13. SET OFF
The Client agrees and irrevocably authorizes FORESIGHT SURVEYORS to apply, or set-off, against the Client’s account under this Agreement any sums which may be owed to the Client by any company within FORESIGHT SURVEYORS group of companies.
14. LEGAL COSTS
All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by FORESIGHT SURVEYORS in respect of this Agreement , or incurred as a result of the Client failing to perform its covenants and obligations contained herein, shall be paid by the Client to FORESIGHT SURVEYORS. The expenses include, but are not limited to; the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.
15. COPYRIGHT RETAINED
FORESIGHT SURVEYORS shall retain copyright in all proposals, tenders, documents, drawings, calculations, designs, plans and data (“the Data”) prepared by it in relation to the project, and in any works executed from them. FORESIGHT SURVEYORS also reserves all present and future moral rights in all intellectual property in the Data, and in any works executed or to be executed from them. The Data must not be given, reproduced or disseminated, to any person, public authority, institution or organization without the express permission of a duly authorized representative of FORESIGHT SURVEYORS.
16. PROJECT SITE – CONSTRUCTION & BUILDING & CIVIL
The project site must be prepared by the Client prior to any survey works commencing. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein. Specifically, the Client must ensure that the working area is clear and safe working environment. Client shall provide task lighting, scaffold, stairs or the like on the designated project site if needed for execution of work.
17. PROJECT SITE – FORESIGHT SURVEYORS
Access arrangements to the site are to be the responsibility of the Client. The price quoted assumes that access to the site will be unhindered. The Client must ensure that the site is a safe working environment and complies with all occupational health and safety requirements and that any potential dangers are communicated to FORESIGHT SURVEYORS before entry to the site. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein.
18. LICENCE TO USE THE DATA
FORESIGHT SURVEYORS shall grant the Client a license to use the Data in connection with the project, conditional upon the following:
- The license applies only to the project or that part of the project to which the Data relates;
- FORESIGHT SURVEYORS has completed the particular stage or stages of the project for which FORESIGHT SURVEYORS has been commissioned; and
- All fees properly due to FORESIGHT SURVEYORS have been paid.
19. EMPLOYMENT OF FORESIGHT SURVEYORS PERSONNEL
Approaches made whether directly or indirectly to FORESIGHT SURVEYORS personnel regarding employment opportunities with the Client or a related entity or associate of the Client during the provision of services by FORESIGHT SURVEYORS to the Client, or within 12 months of cessation of those services, would place those individuals in breach of their FORESIGHT SURVEYORS Employment Contracts. Consequently, irrespective of which party initiates discussions in this regard, the process for determining an equitable outcome for all parties shall be as follows:
- Should the Client or a related entity or associate of the Client wish to make an Employment Offer to an FORESIGHT SURVEYORS employee, the Client shall ensure direct contact in the first instance should be made with the FORESIGHT SURVEYORS Operations Manager responsible for that project.
- FORESIGHT SURVEYORS Operations Manager will then act as the point of liaison between the Client or a related entity or associate of the Client and the respective FORESIGHT SURVEYORS employee in relation to the offer, as well as in relation to the logistics of the transfer of employment should the offer be accepted.
- The Client shall acknowledge that FORESIGHT SURVEYORS develops and trains its employees to a high standard in order to provide the highest level of service to its Clients. Accordingly, should any offer of employment by the Client or a related entity or associate of the to an FORESIGHT SURVEYORS employee be accepted, the Client shall recompense FORESIGHT SURVEYORS to the value of 25% of the total remuneration package offered and accepted by the employee.
20. NO WARRANTIES
Notwithstanding anything contained herein the Client acknowledges that no representation, warranty or condition, express or implied, is given by FORESIGHT SURVEYORS that the services provided comply with the rules, regulations, laws and legislation of the place where the services are being provided and FORESIGHT SURVEYORS will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the services not complying with such rules, regulations, laws and legislation, or by reason of or arising out of any inaccuracy, error or omission in the information provided by or to FORESIGHT SURVEYORS.
If the Client
- defaults in the due and punctual observance of all or any of its obligations or covenants under this agreement; or
- takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs, then all monies owed by the Client to FORESIGHT SURVEYORS shall become immediately due and payable and FORESIGHT SURVEYORS without prejudice to any right or remedies open to it may:
1) treat as discharged all or any obligation arising from any agreement with the Client;
2) retain any security given or monies paid by the Client or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Client to FORESIGHT SURVEYORS;
3) Exercise any other right or remedy available under the laws of the Maldives.
22. JOINT AND SEVERAL LIABILITY
If the Client comprises two or more parties each of those parties is jointly and severally liable on the covenants and obligations herein.
23. DISPUTE RESOLUTION
In the event of a dispute between the parties, either party may serve a notice on the other detailing matters of dispute and requiring that senior representatives of each party meet and attempt to settle the dispute within Seven (7) working days. If the dispute is not settled by the senior representatives within ten (10) working days of the service of the notice, the parties shall agree to refer the dispute to the Courts of Maldives.
FORESIGHT SURVEYORS may terminate the Agreement entered into with the Client:
- If the Client defaults in the due and punctual observance of all or any of its obligations or covenants under that Agreement
- In the event of monies payable to FORESIGHT SURVEYORS pursuant to these terms and conditions being outstanding for more than thirty (30) calendar days;
- In the event of any other breach by the Client of its obligations under such Agreement, which breach is not remedied within thirty (30) calendar days of written notice from FORESIGHT SURVEYORS requiring the breach to be remedied;
- In the event the Client requires FORESIGHT SURVEYORS to act unlawfully or unethically, or fails to provide an adequate Scope of Works and associated instructions;
- Upon giving the Client thirty (30) calendar days written notice of its intention to do so; and
- If the Client takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs.
The Client may terminate its obligations under any Agreement entered into with FORESIGHT SURVEYORS:
- In the event of a breach by FORESIGHT SURVEYORS of its obligations under such Agreement, which breach is not remedied within thirty (30) calendar days of written notice from the Client requiring the breach to be remedied;
- Upon giving FORESIGHT SURVEYORS thirty (30) days written notice of its intention to do so.
If the Agreement is terminated by either party, the Client is still obligated to pay all monies owed to FORESIGHT SURVEYORS for services performed up to and including the date of termination pursuant to these terms and conditions as well as for the costs incurred by FORESIGHT SURVEYORS in relation to demobilising personnel and equipment from site.
If any part of these terms and conditions become void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect.
Except to the extent and solely for the amount therein set out that FORESIGHT SURVEYORS would be liable under Clause 6, the Client hereby undertakes to keep the FORESIGHT SURVEYORS 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, but not limited to, legal costs and expenses on a full indemnity basis) which FORESIGHT SURVEYORS may suffer or incur (either directly or indirectly) in the course of the Services under these Conditions
27. RIGHT TO SUB-CONTRACT
FORESIGHT SURVEYORS 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 FORESIGHT SURVEYORS shall remain fully liable for the due performance of its obligations under these Conditions
No amendment or variation of the FORESIGHT SURVEYORS standard terms and conditions is valid and binding on FORESIGHT SURVEYORS unless it is in writing and signed by a director or other authorized officer of FORESIGHT SURVEYORS.
A provision of the FORESIGHT SURVEYORS standard terms and conditions may not be waived except in writing and signed by a director or other authorized officer of FORESIGHT SURVEYORS. No waiver or breach of any provision of the FORESIGHT SURVEYORS standard terms and conditions shall constitute a waiver or breach of any other provision.
The relationship between FORESIGHT SURVEYORS and the Client shall be governed and construed in accordance with the laws of Maldives and the parties shall submit to the jurisdiction of the Courts of Maldives.