DELPHI MARITIME, LLC MARINE SURVEY TERMS AND CONDITIONS
By virtue of accepting marine survey services; consulting services, auditing services, or training services from Delphi Maritime, LLC (“Surveyor”) the vessel owner or prospective owner (“Client”) agrees to be bound by the following terms and conditions. For purposes of these terms and conditions, all references to “the Surveyor” include the Surveyor’s employees and persons, firms and companies appointed or engaged by the Surveyor as the Surveyor’s 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 the Surveyor, and all agents and employees of persons, firms and companies referred to in this clause. Both Surveyor and Client may be referred to herein as a Party, or together as the Parties.
TERMS AND CONDITIONS
1. Scope of Marine Survey Services.
a. The Vessel will be examined by Surveyor or Surveyor’s agents from all accessible areas of the interior without removal of secured panels, destructive testing, or disassembly.
b. The hull bottom laminate, plating, and/or planking will be examined by visual inspection only. No moisture content readings will be taken and no destructive testing will be performed.
c. Exterior hardware will be examined for corrosion damage and drive components will be tested by sight only.
d. Client expressly acknowledges and understands that inspection of engines, generators, machinery and related mechanical systems is not within the scope of this Agreement or the marine survey contemplated hereby. Only a brief cursory inspection of the machinery will be conducted and no opinion of their overall condition will be formed. Client shall retain the services of a qualified mechanic or engine surveyor or other expert to inspect such engines, generators, machinery and related mechanical systems.
e. Tankage will be inspected from visible surfaces only and no opinion will be rendered as to their overall condition.
f. The electrical system will be visually inspected where accessible, and electronic and electrical components powered only in the presence of the Vessel’s owner or agent. No in depth testing or examination of the electrical system schematic will be conducted.
g. Unless otherwise stated in writing, all services and reports are provided on the basis that they carry no guarantee regarding ownership or title, freedom from mortgages or charges, debts, liens or other encumbrances, or vessel stability, performance or design.
h. This examination has been made without making removals or opening parts normally concealed or testing for tightness or trying out machinery; only provided maintenance and other data has been recorded.
i. Equipment descriptions are included in the report for purposes of identification and classification. Descriptions are intended for informational purposes only, but are not intended to detail all conditions or list all features associated with each item described.
j. Vessel specifications were not measured but obtained from industry sources, government agencies and regulatory documents.
k. Alarms were not tested or machinery operated.
l. If the Vessel is afloat at the time of the survey, the Vessel’s underwater hull will not be examined by the undersigned and the conditions of the underwater hull and appurtenances will not be assessed in the context of the survey.
m. The internal sections of the Vessel’s tanks will be examined if made accessible to Surveyor.
n. No determination of stability or structural strength has been made and no opinion is expressed.
o. Reported specifications will be taken from published sources. No actual measurements or calculations will be made. The recommendations will be based on federal and state regulations, industry standards, and/or Surveyor’s own personal experience. The market value will be based on research of available new/used vessel publications for the geographic area where the Vessel is located and for comparable vessels, and it assumes that the recommendations listed in Surveyor’s report are completed. Industry statistical information of average selling prices may also be referenced.
2. Survey Report. Surveyor shall produce a report (the “Report”) of Surveyor’s findings after the completion of Surveyor’s inspection of the Vessel. Notwithstanding delivery of the Report to Client, the Report shall remain the sole and exclusive property of Surveyor, and distribution of the Report to anyone other than Client’s insurers and Client’s lenders is strictly prohibited without Surveyor’s express written authorization. Notwithstanding any provision in this Agreement to the Contrary, Client expressly agrees to release, defend, hold harmless and indemnify Surveyor and Surveyor’s employees and representatives, of and from any and all disputes, actions, claims, demands, liabilities, judgments, and attorneys fees, which are related to or arise directly or indirectly from Client’s distribution or sharing of the Report to, or any use of the Report by, any entity, person or persons without such express written authorization by Surveyor.
3. Client’s Warranties and Representations. Client warrants that the inspection and survey contemplated in this Agreement are authorized by the owner of the Vessel, and that the areas of the Vessel that are to be inspected will be accessible to Surveyor. If, in the sole judgment of Surveyor, inspection of the Vessel is not possible or practical because clutter from personal property, gear, or poor housekeeping render significant areas of the Vessel inaccessible, or because of poor maintenance of the Vessel, or because of the actions of the Client or the Vessel owner, the survey may, at Surveyor’s option, be terminated prior to completion without the preparation of a Report and with no refund or credit of the survey fee.
4. Surveyor’s Warranties and Representations. Surveyor makes the following warranties and representations:
a. The survey is intended for the purpose of assessing condition and valuation only and is not intended to influence the purchase or non-purchase of the Vessel. The survey is based on the facts presented and discovered, based on the Surveyor’s opinion with no warranty either specified or implied. It is a statement of the condition of the Vessel at the time of survey only. Any observations by the Surveyor are strictly in the nature of opinion and should not be acted upon without verification.
b. Surveyor has no present or prospective interest in the property that is the subject of the Report and no personal interest with respect to the parties involved.
c. Surveyor’s engagement in this assignment was not contingent upon delivering or reporting predetermined results.
d. Surveyor will notify the Client if, within the last three years, Surveyor has previously provided professional services involving the Client’s vessel.
e. Surveyor will appraise the Vessel under the assumption that there is responsible ownership and management, competent crewing, and ongoing maintenance.
f. Surveyor will appraise the Vessel on the premise that it is free and clear of all encumbrances, mortgage debt, and special liens.
g. All values in the Report are considered to be in cash. Contracts or charters, if any, are not considered in reaching the estimated value of the Vessel.
h. Surveyor reserves the right to amend the Report upon further inspection and after receiving additional information, reports and other relevant documentation.
i. The Report is not a certificate of seaworthiness but a statement of opinion.
5. RELEASE AND LIMITATION OF LIABILITY. Surveyor and Client shall each release, defend, hold harmless and indemnify each other and their respective employees and representatives, of and from any and all disputes, actions, claims, demands, liabilities, judgments, and attorneys fees, which are related to or arise directly or indirectly from the services and activities contemplated by this Agreement, howsoever caused, including, without limitation, those due to the negligence, fault or other act or omission of Surveyor or Client or of their respective employees and representatives. Without limiting the effect of the foregoing, the maximum liability of Surveyor to Client under any circumstances shall be the amount of the Surveyor’s fee to Client. Additionally, Surveyor does not accept any responsibility for damage or deterioration not found or discovered during the course of survey, nor for consequential damage, deterioration or loss due to any error or omission.
6. Confidentiality. Each party undertakes to maintain the confidentiality of all information supplied by the other and not to divulge such information to third parties without the prior written authority of the other.
7. Governing Law; Arbitration of Disputes. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Washington, the state where it is deemed to have been executed. Any dispute, claim or controversy which arises from or is related to this Agreement shall be resolved by binding arbitration, before and pursuant to the Commercial Arbitration Rules of the American Arbitration Association or ADR Services, Inc., to be conducted at Seattle, Washington.
8. Waiver. No exercise or failure to exercise or delay in exercising any right or remedy vested in either party shall be deemed to be a waiver by that party of that or any other right or remedy.
9. Successors and Assigns. Neither party shall transfer or assign its rights or obligations under these terms without the prior written consent of the other.
10. Severability. In the event that any provision of these terms is held to be a violation of any applicable law, statute or regulation, such provision 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 herein. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the court or other tribunal making such determination is authorized and instructed to modify this Agreement so as to effect the original intent of the parties as closely as possible so that the transactions and agreements contemplated herein are consummated as originally contemplated to the fullest extent possible.
11. Entire Agreement. Except where expressly stated to the contrary in a written document signed by the Parties on or after the date hereof, 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.