Terms Of Service
All valuation and assessment services and reports (‘the Consultancy Services’) offered and provided by MSC McKay (Jamaica) Ltd (‘MSC McKay’) are offered and provided strictly in accordance with the following terms and conditions:
1. Consultancy services
1.1. MSC McKay shall provide the Consultancy Services and any ancillary services subject to the provisions of this Agreement.
2. Performance of the Consultancy Services
2.1. MSC McKay shall use reasonable endeavors to complete the Consultancy Services within a reasonable period of time.
2.2. Time shall not be of the essence:
2.2.1. for any times for when the Consultancy Services are to be performed, whether given or agreed to by the MSC McKay; or
2.2.2. for the length of time that any of the Consultancy Services are to take; or
2.2.3. for any completion date or such other date as agreed by the Parties.
3. Fee and payment
3.1. The fee for the Consultancy Services (‘the Fee’) shall be as quoted by MSC McKay on the relevant Pro Forma invoice and shall be payable as indicated by MSC McKay.
3.2. All amounts stated are exclusive of GCT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the client.
3.3. If payment of the Fee is not received by any due date, MSC McKay shall be entitled (without prejudice to any other right or remedy):
3.3.1. to charge interest on the outstanding amount at the rate of 8% per annum accruing daily;
3.3.2. to require that the client make a payment in advance of any Consultancy Services or part of the Consultancy Services not yet supplied;
3.3.3. not to provide any further Consultancy Services or part of the Consultancy Services; or
3.3.4. not to provide any reports due on completion of the Consultancy Services (until such payment is made).
4. The Client’s obligations
4.1. The client acknowledges and agrees that for MSC McKay to be able to provide the Consultancy Services the client shall co-operate with the MSC McKay as it reasonably requires including by providing it with such information and documentation as the it reasonably requires.
4.2. MSC McKay may charge the client for any additional reasonable costs and expenses incurred by MSC McKay caused by the client’s instructions, failure to provide instructions, or failure to comply with Clause 4.1.
5. Client’s use of Reports
5.1. MSC McKay grants to the client a non-exclusive licence (without the right to sub-licence) to use the reports provided by MSC solely for its own information purposes. MSC McKay shall own all copy-right, database and other intellectual property rights in the reports. No third party is entitled to access or rely on any MSC McKay generated report without the express written consent of MSC McKay and MSC McKay expressly disclaims any liability in respect thereof.
6. Warranties, liability and indemnities
6.1. MSC McKay warrants that it will use reasonable care and skill in performing the Consultancy Services and to a standard which conforms to generally accepted industry standards and practices.
6.2. If any part of the Consultancy Services is performed negligently or in breach of the provisions of this Agreement then, at the request of the client (if the request is given within 2 months of the completion of the Consultancy Services), MSC McKay will re-perform the relevant part of the Consultancy Services, always subject to Clause 6.3 and Clause 6.4 below.
6.3. Except in the case of death, personal injury and motor vehicle damage caused by MSC McKay’s negligence, the MSC McKay’s liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Fee paid to MSC McKay under this Agreement. The provisions of this Clause 6.3 shall not apply to Clause 6.5.
6.4. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this Clause 6.4 shall not apply to Clause 6.5.
6.5. The client shall indemnify and hold harmless MSC McKay from and against all Claims and Losses arising from loss, damage, liability, injury to MSC McKay employees and third parties, infringe-ment of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the client by MSC McKay, its employees or consultants, or supplied to MSC McKay by the Client within or without the scope of this Agreement. ‘Claims’ shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and ‘Losses’ shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.
6.6. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
7.1. MSC McKay may terminate this Agreement by giving written notice to the client if it becomes unavailable or unable to carry out the Consultancy Services for any reason.
7.2. Without prejudice to other remedies or rights, either Party may terminate this Agreement at any time by written notice to the other Party (‘Other Party’) and the notice taking effect as specified in the notice:
7.2.1 If the Other Party is in material breach of its obligations under this Agreement, and where a breach is capable of remedy within 7 days, the breach is not remedied within 7 days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or
7.2.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
8. Cancellations and Refund
8.1. In the event the client’s request for Consultancy Services is registered on MSC McKay’s Online Software and the client subsequently provides notice of cancellation in writing before the Consultancy Services have commenced; the client will be given an option of opting for another request for Consultancy Service OR will be offered a refund. In any instance of refund there will be a nominal deduction (5%) in the amount refunded, payable towards payment processing. All refunds will be credited to the Client’s Account within 2 working days.
8.2. Should Consultancy Services have commenced at time of receipt of the notice of cancellation no refund will be given.
10. Website Security
10.1 MSC McKay’s Website has Security measures in place to protect the loss, misuse, and alteration of the information under our control. Only certain MSC McKay employees have access to Sensitive Information Clients provide us. These employees have access only for data analysis and quality control purposes. MSC McKay encrypts certain Sensitive information (such as credit card information) using Secure Sockets Layer (SSl) technology to ensure that Client’s Personally Identifiable Information is safe as it is transmitted.
11.1 Force majeure
MSC McKay shall have no liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond its reasonable control.
This Agreement may only be amended in writing signed by duly authorized representatives of the Parties.
11.3. Entire agreement
This Agreement contains the whole agreement between the parties in respect of the subject-matter and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject-matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by MSC McKay in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
11.5 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
11.6 Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognized stock exchange.
11.9 Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by Jamaican law and shall be subject to the exclusive jurisdiction of the Jamaican courts to which the Parties submit.
11.10 Third parties
This Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.