Terms and Conditions for Engagement of Spectrum Adjusting Inc.
FEES AND PAYMENT
Unless otherwise agreed in writing, Spectrum’s fees will be charged to the Client on a time basis at the applicable hourly rates for all personnel working on the Engagement. Such fees may include, without limitation, time spent by such Spectrum personnel in connection with the Engagement on travelling, attending meetings and interviews, research, investigation and forensics, working on and preparing reports and associated papers, correspondence and telephone calls.
Disbursements – Spectrum’s fees will exclude any fees payable by the Client for any Third Party Experts which the Client agrees will, unless otherwise agreed, be payable directly by the Client to the relevant Third Party Expert. Upon receipt of an invoice, the Client agrees to pay all disbursements and expenses incurred by Spectrum’s in connection with the Engagement including charges for travel, subsistence, accommodation and out of office or on site expenses such as telephone calls and photocopying on an at cost plus applicable taxes basis.
Billing – Unless otherwise agreed, Spectrum normally renders interim invoices on a quarterly basis and a final invoice on completion of the Engagement. Each invoice will attach details of the work undertaken and copies of any other invoices for significant disbursements and expenses described in clause above. Notwithstanding the foregoing, Spectrum reserves the right to issue interim invoices on a more frequent or some other basis for work performed to date. Unless otherwise agreed, all Spectrum invoices will be addressed to the Client.
Payment – All Spectrum invoices (whether interim or final) are due for payment in full on receipt by the Client and the Client is liable for their payment to Spectrum. If payment in full is not received by Spectrum within 30 (thirty) days of the Client’s receipt of an invoice, Spectrum will have the right, in addition to any statutory rights available to it, to suspend the provision of its services and / or to terminate its Engagement in accordance with clause and / or to exercise a lien in accordance, regardless of whether the Engagement has been terminated or not.
Engagement of Spectrum Adjusting Inc. includes the following provisions:
LIMITATION OF LIABILITY
Skill and Care – Spectrum will exercise reasonable care and skill in the performance of the Engagement. All other such warranties and representations, whether express or implied by law, are excluded to the extent permitted by law.
Limit of Liability – Spectrum’s liability to the Client in respect of any claim for breach of contract, negligence, breach of trust or statutory duty or any other claim made against Spectrum or its personnel in connection with the Engagement is limited as follows:
In respect of any claim, Spectrum’s total liability in respect of all liability arising in connection with the Engagement shall be limited in the aggregate to the lesser of $1,000,000 (One Million Dollars) or 10 (ten) times the value of Spectrum’s fees excluding disbursements, expenses and applicable taxes incurred in respect of the Engagement, and I. in any claim made against Spectrum where parties other than Spectrum also share liability for such claim, Spectrum’s liability for such claim shall be limited to that proportion of any loss or damage so claimed for which it would be just and equitable for Spectrum to contribute having regard to the extent of Spectrum’s factual responsibility for such loss or damage, on the basis that those parties shall be deemed to have provided an undertaking in terms no less onerous than this clause.
Excluded Liability: Spectrum shall have no liability for:
I. any indirect or consequential loss or damage including, without limitation, loss of profits,
II. loss of revenue, loss of opportunity and loss of contracts;
III. any claim for breach of contract, negligence, breach of trust or statutory duty or other claim in respect of any delay or failure by Spectrum to perform any of its obligations under these terms of business or the Engagement where such failure results directly or indirectly from any negligent or willful act of the Client or a third party;
IV. any loss or damage arising from Spectrum’s reliance on any information, instruction or assistance given by the Client or resulting from the Client’s failure to give any relevant
information, instructions or assistance in connection with the Engagement;
V. any and all claims the Client may have against Spectrum in respect of which proceedings are not brought within 12 (twelve) months of the date when the Client’s cause of action arose.
Liability for Third Party Experts – Spectrum will have no liability to the Client or any third party
either for the instructing or performance of, or any opinions, statements, acts or omissions of, any Third Party Expert, nor in respect of its own opinions, statements, acts or omissions insofar as these depend upon, are based upon, are derived from or are a consequence of opinions,
statements, acts or omissions of any such Third Party Expert.
Further, Spectrum makes no representation or recommendation to the Client as to any Third Party Expert’s experience, suitability or competence.
Liability of Spectrum Personnel – The Client acknowledges that Spectrum has an interest in
limiting the liability of all its personnel involved in the Engagement. Accordingly, the Client agrees not to bring any claim of any kind in connection with the Engagement against any individual employee of Spectrum, any person seconded to Spectrum or any agent, correspondent, subcontractor or self-employed consultant engaged by Spectrum (together “personnel”).
In connection with the Engagement should any limitation or provision contained in the terms and
conditions be held to be invalid under any applicable statute or rule of law, it shall only to that
extent be deemed omitted from the terms of business and all other limitations and provisions of
such terms shall remain in force.
Claims – If a claim is made against the Client as a result of, or in connection with, a liability
incurred to, or a dispute with, any third party, Spectrum will give the Client all reasonable facilities and co-operation to investigate such claim and will provide the Client with such information and assistance as the Client may reasonably require in connection with such claim, liability or dispute.
Indemnity – Unless the subject matter of the indemnity provided for by this clause has been
caused by Spectrum’s breach of these terms of business, the Client undertakes to indemnify
Spectrum and keep it indemnified fully at all times against all liability that may arise from time to
time, and against all claims, demands, actions, proceedings, damages, losses, costs and
expenses which are made, brought or claimed against or incurred by Spectrum in connection with the Engagement.