SITE SURVEY - TERMS & CONDITIONS - INSURERS

1                    Definitions

1.1                In these terms:

Broker: means the Policyholder’s insurance broker;

Charges: means the charges payable by the Client to the Supplier for the provision of the Services as specified in the Quotation or as otherwise agreed in writing between the Client and the Supplier prior to the Commencement Date;

Client: means the Party to whom the Services are supplied and who pays for the Services;

Commencement Date: has the meaning given in clause 2.3;

Conditions: these terms and conditions as amended from time to time in accordance with clause 11.6 and which apply to the Contract;

Confidential Information: includes, without limitation, business information and all documents, computer records, specifications, technical descriptions, records, drawings, designs and data relating to a Report and/or the provision of the Services;

Contract: means the contract between the Supplier and the Client for the provision of the Services in accordance with these Conditions;

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation;

Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time including, but not limited to, the General Data Protection Regulation (EU) 2016/679 (or GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); the Privacy and Electronic Communication Regulations 2003 (SI 2003/2426) and any national implementing laws, regulations and secondary legislation (or all equivalent and/or related legislation enacted in the UK in respect of the protection of personal data and privacy at the expiry of the transition period provided for in the Withdrawal Agreement (as given effect in the European Union (Withdrawal Agreement) Act 2020)) (all as amended, updated, extended or re-enacted from time to time);

Disclaimer: means the disclaimer attached to a Report by the Supplier a copy of which is attached to these Conditions;

Group Company: means a company which is either a holding company or a subsidiary of a Party, or a subsidiary of that Party's holding company (as those terms are defined in section 1159 of the Companies Act 2006);

Intellectual Property Rights: means copyrights, trademarks, domain names, rights in computer software and databases, know-how and any similar rights whether arising in the United Kingdom or elsewhere in the world;

Materials: means documents, drawings, working papers or similar materials and any data or other information;

Parties: means the parties to a Contract being, together, the Client and the Supplier and their respective successors in title; and Party means either of them;

Permitted Recipient: means the Policyholder and/or the Broker;

Policyholder: means a policyholder of the Client or prospective policyholder of the Client in respect of insurance for the Property;

Property: means the property (for example a building) or an asset (for example a motor fleet) in the Territory which is the subject of a Report, details of which are set out in the Request and Properties shall be construed accordingly;

Quotation: means a quotation provided by the Supplier to the Client which sets out the type of survey for the Property in question and the Charges and which shall have attached to it or referred to in it, a copy of these Conditions;

Request: means the Client’s order for Services in relation to one or more Properties as set out in the Client’s purchase order form, in a request document or the Client’s written acceptance of a Quotation, as the case may be;

RIR: means a risk improvement report;

Report: means a risk management report consisting of a risk report and RIR produced by the Supplier as part of the Services using the Templates;

Services: means the survey services specified in the Quotation;

Supplier: means RiskSTOP Surveys Limited a company incorporated in England and Wales with company number 06388904 whose registered office is at 43 Richmond Hill, Bournemouth, Dorset, BH2 6LR and whose main trading address for correspondence is Floor 1 Mey House, Bridport Road, Poundbury, Dorchester DT1 3QY;

Supplier Materials: means any Materials and/or system and/or concept owned by the Supplier or which has been developed by the Supplier and its Group Companies (including without limitation any quality assurance protocols, any templates and/or framework solutions for the Services);

Surveyor: means an employee or contractor appointed by the Supplier to undertake a survey of the Property and produce the Report;

Templates: the Supplier’s standard templates for the production of a Report for the type of Property which is the subject of the Request;

Territory: means the United Kingdom, Isle of Man and Channel Islands.

1.2                Interpretation

1.2.1           A reference to a statute or statutory provision is a reference to it as amended or re-enacted.  A reference to a statue or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.2.2           Any works following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3           A reference to writing or written includes fax and email.

2                    Request for Services

2.1                The Request constitutes an offer by the Client to purchase Services in accordance with these Conditions.

2.2                The Client is responsible for ensuring that the information set out in the Request is complete and accurate.

2.3                The Request shall only be deemed to be accepted when the Supplier issues written acceptance of the Request at which point and on which date the Contract shall come into existence (Commencement Date).

2.4                Upon the Commencement Date the Supplier is authorised to contact the Policyholder, directly or via the Broker to carry out the Services.

2.5                Where the Contract relates to more than one Property, the Services will be carried out in respect of each individual Property and the Charges will be payable for each individual Report.

2.6                Any Quotation shall not constitute an offer, and is only valid for a period of 90 days from its date of issue.

3                    supply of services

3.1                The Supplier shall supply the Services to the Client subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions, express or implied.

3.2                The Client shall, at its own expense, provide to the Supplier all necessary Materials which the Supplier may reasonably require in order to provide the Services.  The Client shall retain duplicates of all such Materials and the Supplier shall have no liability for loss of, or damage to, the same.

3.3                Delivery of the Report by the Supplier shall be by email. If, for any reason, the Supplier is unable to deliver the Report by email, or if the Client requests, delivery of the Report will be by post.

3.4                The Supplier shall not be liable for the loss, misdirection or destruction of the Report after it has been either sent to the email address provided by the Client for that purpose or placed in the Royal Mail posting system to the postal address provided by the Client for that purpose.

3.5                Any dates quoted for the Surveyor carrying out the Services and delivery of the Report are approximate only, and time is not of the essence unless otherwise expressly agreed by the Supplier in writing. The Supplier shall not be liable for any delay in carrying out the Services or delivery of the Report that is caused by the Client’s failure to provide the Supplier with adequate information or the Client’s failure to provide access and/or supply any information requested (for example alarm specification).

3.6                The Intellectual Property Rights in the Services, Supplier Materials and in the Report shall at all times remain with the Supplier.

3.7                The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.

4                    PRICE and payment

4.1                The Supplier will invoice the Client for the Charges upon issue by the Supplier of each Report to which the Charges relate.

4.2                If a Request is received by the Supplier but is subsequently cancelled by the Client before the Surveyor has commenced work, the Supplier shall be entitled to charge an administration fee of £250 plus VAT or, if the Surveyor has already commenced any work in connection with the Services, a fee commensurate with actual time spent up to the time of cancellation together with any reasonable expenses incurred to that time.

4.3                Payment of the Charges specified in an invoice is due within thirty (30) days of the date of the invoice in full and in cleared funds or in the event the Client has a credit account with the Supplier, in accordance with the agreed credit payment terms.

4.4                All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) for which the Client shall be additionally liable.

4.5                If the Client fails to make a payment due to the Supplier under the Contract by the due date, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.  Interest under this clause 4.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

4.6                All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5                    Confidentiality

5.1                Neither the Report, nor any part or extract from it, may be included in any published document, circular or statement or otherwise by the Client without the prior written approval of the Supplier of the form and context in which it may appear.

5.2                Subject to clause 5.3, each Party shall keep confidential all Confidential Information and not use it except for the purpose of exercising or performing its rights and obligations under the Contract.  Each Party may disclose Confidential Information:

5.2.1           to a Group Company and to its or their respective employees, officers, professional representatives or advisers, sub-contractors and agents, provided that such persons comply with this clause 5; or

5.2.2           as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

5.3                Notwithstanding any other provision of these Conditions, the Supplier may use the data gathered in the performance of the Services for its own business purposes but may only disclose such data to third parties in aggregated form and in a manner which does not identify a specific property or person.

5.4                This clause 5 shall survive termination of the Contract.

6                    Data Protection

6.1                Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Legislation.

6.2                In this clause 6, Applicable Law means (a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a Party is subject and/or which is applicable in any jurisdiction that the Services are provided to or in respect of; (b) the common law and laws of equity as applicable to the Parties (or either of them) from time to time; (c) any binding court order, judgment or decree as applicable to the Parties (or either of them) from time to time; or (d) any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over that Party.

6.3                The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and the Supplier is the processor.

6.4                Without prejudice to the generality of clause 6.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

6.5                Without prejudice to the generality of clause 6.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

6.5.1           process that personal data only on the documented written instructions of the Client unless the Supplier is required by Applicable Law to otherwise process that personal data. Where the Supplier is relying on Applicable Law as the basis for processing personal data, the Supplier shall notify the Client of this before performing the processing required by the Applicable Law unless any Applicable Law prohibits the Supplier from so notifying the Client;

6.5.2           ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

6.5.3           ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

6.5.4           not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:

(a)         the Client or the Supplier has provided appropriate safeguards in relation to the transfer;

(b)         the data subject has enforceable rights and effective legal remedies;

6.5.5           assist the Client, at the Client's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

6.5.6           notify the Client without undue delay on becoming aware of a personal data breach; and

6.5.7           at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data.

6.6                The Client consents to the Supplier appointing third party processors for carrying out any processing activities of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with such third party processors into a written agreement  incorporating terms which are substantially similar to those set out in this clause 6. As between the Client and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 6.

7                    Warranties and Liability

7.1                The Supplier warrants to the Client that the Services will be provided using reasonable care and skill but shall be subject to the provisos in clause 7.3. All other conditions, warranties and other terms which might have effect between the Parties or be implied or incorporated into the Contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law.

7.2                The Supplier shall have no liability to the Client for any loss, liability, demand, damage, costs, expenses or other claims for compensation arising as a result of any instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, in the wrong form or late; or any other fault of the Client, the Policyholder or any person acting on their behalf.

7.3                Each Report is supplied subject to the following limitations and exclusions:

7.3.1           the quality of the visual inspection by a Surveyor shall depend upon the circumstances prevailing at the Property at the time the survey is carried out and may be affected by (by way of example only and not of limitation) limited access, working conditions, information provided which cannot reasonably be verified and health and safety considerations;

7.3.2           save as mentioned in paragraph 7.3.6, no testing of any plant, equipment or services at the Property will be undertaken and no representations are or will be given as to the proper or safe operation of any such plant, equipment or services;

7.3.3           the conditions and circumstances described in the Report will be those prevailing at the time the survey of the Property is carried out and not otherwise;

7.3.4           the Surveyor shall not be obliged to report to the Client on any moral hazard;

7.3.5           all statements and opinions expressed in a Report are made to the best of the knowledge and belief of the Surveyor having regard to best practice and industry guidelines; and

7.3.6           if a sprinkler is installed at a Property, then subject to the Parties having agreed additional Charges, the Surveyor shall:

(a)         endeavour to assess the effectiveness of that system (but shall not having agreed be obliged to test it) and include that information in the sprinkler section of the Report; and/or

(b)         observe and report on a system test by a competent person such as a sprinkler engineer employed by, or contracted by, the owner/occupier of the Property.

7.4                Nothing in the Contract shall limit either Party's liability in respect of any claims:

7.4.1           for death or personal injury caused by negligence;

7.4.2           resulting from any fraud including fraudulent misrepresentation; or

7.4.3           for which liability may not otherwise lawfully be limited or excluded.

7.5                Subject to clause 7.4, in no event shall the Supplier be liable to the Client for any indirect or consequential damages including loss of profits, business interruption, loss of sales, loss of turnover and loss of opportunity even if the loss was reasonably foreseeable or either Party has been advised of the possibility of such damages.

7.6                Subject to clauses 7.4 and 7.5, the aggregate liability of the Supplier hereunder (howsoever caused) (including but not limited to any liability for the acts and omissions of the Supplier's employees, consultants, agents or sub-contractors) in respect of any breach of its obligations to the Client (whether implied or express) arising under or in connection with the Contract  whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise will be limited to five million pounds (£5,000,000). 

7.7                The Supplier’s Group Companies and the Surveyors shall be entitled to enforce the provisions of this clause 7 as if they were a Party to the Contract.

7.8                This clause 7 shall survive termination of the Contract.

8                    Third Parties

8.1                In carrying out its obligations hereunder the Parties acknowledge that the Supplier is acting only for the Client and the following shall apply:

8.1.1           the Supplier is not authorised to make any recommendation to, or requirements of, a Policyholder;

8.1.2           the Supplier shall not be required to take instructions in relation to a Report or the Services from anyone other than the Client; and

8.1.3           the Report is produced exclusively for the Client and notwithstanding the Report may be disclosed to a Permitted Recipient, no-one other than the Client shall be entitled to rely upon the content of any such Report. Consequently the Supplier shall not be liable to any third party (whether in contract, tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise and howsoever arising) in respect of any inaccuracy, error, omission, unfitness for purpose, defect or inadequacy of any kind whatsoever in the Report.  

8.2                Each Report shall contain a Disclaimer and the Client undertakes and agrees that it shall not at any time remove or vary, or permit the removal or variation of, the Disclaimer without the Supplier's prior written consent. 

8.3                If at any time the Client discloses or provides a copy of the Report or part thereof to any third party:

8.3.1           the Client shall not alter or vary the content of the Report or the Disclaimer;

8.3.2           the Client shall take all reasonable steps to ensure that no third party shall remove the Disclaimer from any Report; and

8.3.3           the Client shall, prior to or at the time of such disclosure notify the relevant third party in writing that the third party is not entitled to rely on the Report.

8.4                Save as otherwise provided in the Contract, the Parties intend that no term of a Contract may be enforced by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

9                    TERMINATION

9.1                The Supplier may at any time immediately terminate the Contract in relation to one or more Properties if for any reason it is not able to fulfil the Services in relation to those Properties.

9.2                Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the other Party if:

9.2.1           the other Party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that Party being notified in writing to do so;

9.2.2           the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

9.2.3           the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

9.3                Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Client and the Supplier if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 9.2.2 or 9.2.3, or the Supplier reasonably believes that the Client is about to become subject to any of them.

9.4                On termination of the Contract the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt.

9.5                Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

9.6                Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10                 FORCE MAJEURE

10.1             Force Majeure Event means any circumstances not within a Party’s reasonable control including, without limitation:

10.1.1        acts of God, flood, drought, earthquake or other natural disaster;

10.1.2        epidemic or pandemic;

10.1.3        terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

10.1.4        nuclear, chemical or biological contamination or sonic boom;

10.1.5        any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;

10.1.6        collapse of buildings, fire or interruption or failure of utility service explosion or accident.

10.2             If a Party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

10.3             If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 4 weeks, the Party not affected by the Force Majeure Event may terminate the Contract by giving 1 weeks written notice to the Affected Party.

10.4             This clause 10 shall not operate to relieve the Client from its obligation to pay the Charges when due.

11                 General

11.1             The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties representations and understandings between them, whether written or oral, relating to its subject matter. 

11.2             Any notice required or permitted to be given by either Party to the other in accordance with the Contract shall be in writing addressed to the other Party at its registered office or principal place of business or at such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice and shall be delivered by hand or sent by special delivery post.

11.3             No failure or delay by either Party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.4             If any part of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of any other provisions shall not be affected.

11.5             Nothing in the Contract is intended to or shall operate to create a partnership or joint venture of any kind between the Parties.

11.6             No variation of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

11.7             The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

11.8             The Supplier may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

11.9             The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by the law of England and Wales and the Parties agree to submit to the exclusive jurisdiction of the English courts.

Form of Disclaimer

IMPORTANT NOTICE

This risk management report (Report) is confidential and has been prepared by RiskSTOP Surveys Limited (RiskSTOP) for the benefit of the Client in relation to a property or site which is the subject of this Report solely for the purpose of providing either risk control advice or information in connection with the binding or writing of insurance or reinsurance where it is also being underwritten by the CLIENT (Permitted Purpose). In addition, this Report (or part thereof) may be disclosed by the CLIENT to the Policyholder or its Broker but neither shall be entitled to rely upon it.

This Report may not be copied or disclosed to any other person in whole or in part or used for any other purpose without the prior written consent of RiskSTOP.

This Report is based upon information provided by the Policyholder and, although reasonable care has been taken to ensure that such information is accurately reproduced, neither RiskSTOP (or its group companies) gives any warranty express or implied as to the accuracy or completeness of information contained in this Report.  RiskSTOP recommends that the Client does not base its underwriting decisions solely in reliance on information contained in this Report and that it must take its own steps to verify such information.

Save for the warranty that the Report has been prepared using reasonable skill and care, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.  Without prejudice to the foregoing, the maximum aggregate liability of RiskSTOP (and its group companies) and its employees, agents and sub-contractors for any liability and losses of whatever kind and howsoever arising (including negligence), as a result of access to, use of, or reliance upon, any information contained in this Report is limited to £5,000,000 (five million pounds). Neither RiskSTOP nor its group companies nor their respective employees, agents or sub-contractors shall be liable to any person for indirect, consequential or special losses. In no circumstances shall RiskSTOP, its group companies or their respective employees, agents or sub-contractors be liable to any person other than the Client or where the Report has not been used for the Permitted Purpose. 

Nothing in this disclaimer will limit or exclude RiskSTOP’s liability to the extent not permitted by law..