EQUITAS
Loss Adjusters and Surveyors
Definitions
| We,
us, our: |
Jason
Vassallo and/or Jason Vassallo trading as Equitas
Loss Adjusters Surveyors & Consultants |
| The
Client: |
Whosoever
appoints us. |
Liability and limitations
1.
All services and reports are provided for our named
Clients' use only. No liability of whatever nature is
assumed towards any other party and nothing in these
terms, or the relationship between us and our Clients,
shall confer or purport to confer on any third party
a benefit or the right to enforce any provision of these
terms.
2.
We shall undertake the services to which these terms
relate with reasonable care, skill and diligence, but
we shall have no responsibility or liability whatsoever
except insofar as the Client suffers loss or damage
in consequence of our negligence, gross negligence or
wilful default. Notwithstanding any other provision
of these terms:
2.1
Our liability shall expire 12 months after completion
of the services in respect of which liability is alleged
to arise and we shall thereafter have no liability in
respect of those services and/or any alleged default
in connection with the provision thereof;
2.2
we shall not be liable in respect of any breach of our
obligations (1) for any loss, damage, delay or expense
of whatever nature whether direct or indirect (including
but not limited to loss of profit and loss of use) and
howsoever arising or resulting whether directly or indirectly
in the course of or as a result of the provision of
our services, under these terms or otherwise, (2) of
which written notification shall not have been given
within 14 days of the date on which the Client ought
reasonably to have become aware of the existence of
such breach, or (3) resulting from unforeseeable causes
beyond our reasonable control;
2.3
the Client covenants with us and our servants and agents
that no such servant or agent shall in any circumstances
whatsoever be under any liability for any loss arising
or resulting directly or indirectly from any act, neglect
or default on his part while acting in the course of
or in connection with his employment and, without prejudice
to the generality of the foregoing, every exemption,
limitation and condition herein contained and every
right, exemption and limitation of liability applicable
to us or to which we are entitled hereunder shall also
be available to protect every such servant or agent
acting as aforesaid and for the purpose of the foregoing
provisions we are or shall be deemed to be acting as
agents or trustees on behalf of and for the benefit
of all persons who are or might be our servants or agents
from time to time and all such persons shall to this
extent be or be deemed to be parties to these terms;
2.4
under no circumstances shall our liability exceed a
total of [10] times the fee payable hereunder.
3. Notwithstanding anything
contained herein to the contrary, in the case of Loss
Adjusting Services We shall provide a written final
report together with a recommended settlement. Acceptance
of the recommended settlement and payment of the recommended
amount without further discussion or correspondence
with Us shall constitute acceptance of the recommended
settlement and shall discharge Us of any further responsibility
on the particular claim.
Fees
4.
Fees and expenses and any applicable VAT shall become
due and payable upon receipt by the Client of the final
report and invoice. Invoices will be submitted in respect
of all fees and expenses when due and the amount of
each invoice shall be settled upon receipt. Interest
shall be payable on all amounts owing and unpaid at
the rate imposed by the courts of Malta (Presently 8%).
Default
4.1
Client default: We may terminate our appointment forthwith
if the Client fails for more than 14 days to pay any
sum due when demanded, or if the Client fails consistently
to respond promptly to requests for information and/or
instructions and fails adequately to respond to 14 days'
formal notice of such failure, without prejudice to
our accrued rights.
4.2
Other defaults: Either party may terminate our appointment
forthwith by notice if the other party shall: have a
petition presented for its winding up or administration
which is not discharged within 14 days of presentation
or any other action is taken with a view to its winding
up (otherwise than for the purpose of reorganisation
or amalgamation without insolvency), or become bankrupt
or commit an act of bankruptcy, or make any arrangement
or composition for the benefit of creditors, or have
a receiver or manager or administrative receiver or
administrator or liquidator appointed in respect of
any of its assets, or have anything analogous to any
of the foregoing under the laws of any jurisdiction
occur to it, or cease or threaten to cease to carry
on business; without prejudice to the accrued rights
of the other party.
Law
and disputes
5.
These terms shall be governed by and construed in accordance
with the laws of Malta and any dispute or difference
arising, or claim made, between or by the parties out
of or in relation to or in connection with the provision
of services to which these terms relate and which cannot
be resolved by the parties shall be submitted to the
non-exclusive jurisdiction of the Court of Malta..
5.1
Any dispute or difference arising from provision by
Us of services to the Client may be referred to an arbitrator
however if the parties are unable to agree on a single
arbitrator the matter shall be referred to a board of
arbitrators made up of three persons, one each having
been nominated by the parties concerned respectively
and the third one having been appointed by the Malta
Arbitration Centre.
Miscellaneous
6.
No exercise or failure to exercise or delay in exercising
any right, power or remedy vested in either party shall
be deemed to be a waiver by that party of that or any
other right, power or remedy.
7.
Neither party shall transfer or assign its rights or
obligations under these terms without the prior written
consent of the other.
8.
In the event that any provision of these terms is held
to be a violation of any applicable law, statute or
regulation the same shall be deemed to be deleted from
these terms and shall be of no force or effect and these
terms shall remain in full force and effect as if such
provision had not been contained therein. Notwithstanding
the foregoing in the event of any such deletion the
parties shall negotiate in good faith in order to agree
the terms of an acceptable alternative provision.
9.
These terms form the entire agreement between the parties
and supersede all previous agreements and understandings
between the parties, and no warranty, condition, description,
term or representation is given or to be implied by
anything said or written in negotiations between the
parties or their representatives prior to the communication
of these terms.
10.
References to "we" and "us" include
our employees and persons, firms and companies appointed
or engaged by us as our agents for carrying out any
work or services under these terms, all persons, firms
and companies to whom performance of any work or services
under these terms is sub-contracted or delegated by
us, and all agents and employees of persons, firms and
companies referred to in this clause.
11. Any communication required
to be given under these terms by either party shall
be in writing and shall be sufficiently given either
by letter, fax or electronic mail (provided the same
is capable of being recorded by the recipient in durable
form) sent to the other at the contact details previously
notified and any such notice shall be deemed to have
been given at the time at which it would in the ordinary
course of transmission have been received.
12.
Both parties undertake to maintain the confidentiality
of all information supplied by each other and not to
divulge such information to third parties without the
prior written authority of the other.
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