GENERAL TERMS & CONDITIONS OF BUSINESS

 

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1. APPLICATION

1.1 Except to the extent that these are expressly inconsistent with or varied by an agreement in writ-ing, these conditions shall apply to all Contracts made by the Company.

 

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2. LIABILITY

2.1 The Company shall not be liable for any loss or damage caused by events or circumstances beyond its reasonable control (such as severe weather conditions, the actions of third parties not employed by us or any defect in a customer’s or third party’s property); this extends to loss or damage to vessels, gear, equipment or other property left with the Company for work or storage, and harm to persons entering the Company’s premises or using any of its facilities or equipment.

2.2 The Company shall take reasonable and proportionate steps having regard to the nature and scale of its business to maintain security at its premises, and to maintain its facilities and equipment in reasonably good working order, but in the absence of any negligence or other breach of duty by the Company, and in respect of repair/yard services work, vessels and other property are left with the Company at the Customer’s own risk and Customers should ensure that their own personal and prop-erty insurance adequately covers such risks.

2.3 Without prejudice to the Customer’s rights under any statute the Company shall not be liable for any faulty goods supplied the fault in which can be remedied under manufacturer’s warranty or guar-antee unless and until the Customer’s remedies under that warranty or guarantee are exhausted or ex-cluded.

2.4 In the event of war, invasion,  act of foreign enemy hostilities (whether war has been declared or not) civil war, rebellion, revolution, or insurrection or by any statute, rules, regulations, orders or requi-sitions ordered by any government department, council or other duly constituted authority or from strikes, lockouts, breakdown of the plant, adverse climatic conditions or Act of God or any other causes (whether or not of a like nature) beyond the Company’s control, the Company shall be relieved of liabilities incurred under the contract wherever and to the extent to which the fulfilment of such ob-ligations is prevented, frustrated or impeded as a consequence of any such event.

2.5 The Company shall not be under any duty to salvage or preserve a Customer’s vessel or other prop-erty from the consequences of any defect in the vessel or property concerned unless the Company has been expressly engaged to do so by the Customer on commercial terms. Similarly the Company shall not be under any duty to salvage or preserve a Customer’s vessel or other property from the conse-quences of an accident which has not been caused by its negligence or some other breach of duty on its part. However, the Company reserves the right to do so in any appropriate circumstances, particu-larly where a risk is posed to the safety of people, property or the environment. Where it does so the company shall be entitled to charge the Customer concerned on a normal commercial basis.

2.6 In respect of repair/yard services work, the Customer may be liable for any loss or damage caused by them, their crew or their vessels and while their vessel or other property is on the Company’s prem-ises or is being worked on by the Company, the Customer shall be obliged to maintain adequate insur-ance, including third party liability cover for not less than £2,000,000, and, where appropriate, Employers’ Liability cover in respect of any employee. The Customer shall be obliged to produce evi-dence of such insurance to the Company within 7 days of a request to do so.

 

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3.  PRICES AND ESTIMATES

3.1 In the absence of express agreement to the contrary the price for work shall be based on labour and materials expended and services provided.

3.2  In respect of repair/yard services work, the Company will exercise reasonable skill and judgement when they give an estimate or indication of price. However such estimates are always subject to the accuracy of information provided by the Customer and are usually based only on a superficial examina-tion and will not include the cost of any emergent work which may be necessary to the vessel, gear or equipment nor the cost of any extensions to the work comprised in the estimate.

3.3 In respect of repair/yard services work, the Company will inform the Customer promptly of any proposed increase in estimated prices and the reasons for it and will only proceed with the work or supply with the approval of the customer. The Customer shall remain responsible for the cost of labour and materials already supplied or remaining to be supplied which are not affected by the proposed in-crease in price.

3.4 Any quotation is open for acceptance within 30 days from its date.

 

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4.  DELIVERY

4.1 Any time given for completion of work is given in good faith but is not guaranteed. Time shall not be of the essence of the Contract. Delivery shall be within a reasonable time of any date specified bearing in mind all the circumstances of the particular case. The Company shall not be responsible for any delay in completion of the work or for the consequences of any such delay unless it arises from its wilful acts or omissions or from negligence.

4.2 Delivery shall be given at the Company’s works or the water adjacent thereto.

 

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5.  VESSEL MOVEMENTS

5.1 The Company reserves the right to move any vessel, gear, equipment or other property at any time for reasons of safety, security or good management of is business and premises.

5.2 Any craft stored at seasonal rates ashore or in mud-berths will be launched or put afloat near the end of the seasonal period at such time as in the company’s opinion tide and weather conditions and available facilities permit and in such sequence to avoid moving other craft for this purpose and so as to make the most economical use of the facilities at the Company’s disposal. At the Customer’s request the Company will if possible launch his craft at any suitable tide and weather conditions but the costs of moving any other craft for this purpose and/or any attendant expenses must be paid for by the Customer.

5.3 Moorings are at all times subject to the rules and regulations of the relevant harbour authority.

 

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6.  PAYMENT

6.1 Unless otherwise agreed and stated in writing  payment for all work, goods and services shall be due immediately on invoice date. Payment shall be deemed to have been made when the Company has received cleared funds at their bank.

6.2 The terms for payment for goods supplied, work done or accommodation provided are net 14 days from the date of invoice or before removal of the craft whichever shall be earlier. If the goods are not removed within 14 days from the date of invoice the Company shall reserve the right thereafter to make reasonable mooring and storage charges.

6.3 The Company has the right to charge interest on any sum outstanding for more than 14 days (ex-cept in respect of repair/yard services work, in the case of a reasonable and proportionate retention by the Customer of any amount genuinely in dispute between the Company and the Customer) on the outstanding balance at 4% above the base rate of National Westminster Bank Plc which may be calcu-lated daily up to the date of actual payment.

6.4 In respect of repair/yard services work, the Company reserves the general right (“a general lien”) to detain and hold onto the Customer’s vessel or other property pending payment by the Customer of all sums due to the Company. The Company shall be entitled to charge the Customer for storage and the provision of any ongoing services at our normal daily rates until payment (or provision of security) by the Customer and removal of the vessel or property from our premises.

6.5 The Customers’ attention is drawn also to the note at Clause 10.2 of these Terms of Business regarding other rights which exist at law.

6.6 Unless otherwise stated and agreed in writing by the Company, prices are strictly net (no discount allowed) and do not include costs for packing and dispatching or loading on to any form of wheeled transport. The Customer shall not be entitled to withhold or set off payment for any reason whatso-ever.

6.7 In respect of repair/yard services work, payment shall be made in the following proportions and at the following times: -

(i)     25% of the Contract price on the placing of the order

(ii)     50% of the Contract price at the company’s discretion either upon delivery of the goods to the Company or upon commencement of the work.

(iii)     The balance on the practical completion of the work as determined by the Company.

6.8 All payments shall be made in pounds sterling.

6.9 In respect of repair/yard services work, the Company shall be entitled to charge storage, rent and other expenses incurred in connection with all or any of the Customer’s goods during all periods dur-ing which a lien on such goods or any of them is in force.

6.10 In respect of repair/yard services work, the Company shall be entitled to make reasonable moor-ing and storage charges during such times as craft are being repaired and/or overhauled.

6.11  For avoidance of doubt, in respect of repair/yard services work, the Company shall be entitled to apply payments received from the Customer against any sums due from the Customer disregarding any instructions from the Customer and without regard to the dates upon with sums became due.

 

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7.  RETENTION OF TITLE / RISK

7.1 Where the Customer has entered into a Contract whereby the Company is to construct a new craft the payment for which is to be made in stages according to the level of completion of the craft from time to time, the Customer upon payment of the sums invoiced within the time limits laid down shall obtain good title to such proportion of the craft as the aggregate of sums paid by the Customer bears to the contractual price of the craft as finally completed PROVIDED THAT if any such sums in-voiced by the Company are not paid within the time limits laid down, title to the entire craft shall re-vert to the Company until any sums invoiced but outstanding are pid in full.

7.2 Unless otherwise agreed in writing property in goods supplied by the Company shall not pass until payment has been received in full.

7.3 Until payment in full has been received the Customer shall hold the goods solely as bailee for the Company and shall store them separately from its own goods or those of any other person and in a manner which makes them readily identifiable as the goods of the Company.

7.4 The Customer’s right to possession of the goods shall cease:-

a)     If payment for the goods is overdue in whole or in part, or

b)     If the Customer becomes bankrupt or does anything or fails to do anything which would entitle a Receiver to take possession of any of its assets or which would entitle any person to present a petition to wind up the Customer the Company may (without prejudice to any of its other rights) recover and resell the goods or any part of the goods and may enter upon any premises where they are stored or thought to be stored for that purpose.

7.5. The customer may agree to sell the goods ( or any product produced from or with the goods) on the express condition that such an agreement  to sell shall take place as agent and bailee for the Com-pany (whether the Customer sells on his own account or not) and that the entire proceeds therefrom are held in trust for the Company and are not mingled with other monies and shall at all times be identifiable as the Company’s monies. If the Customer has not received the proceeds of such sale he will if called upon to do so by the Company assign to the Company all rights against the persons to whom he has supplied the goods or any product made therefrom.

7.6 Title to all goods, equipment and materials supplied by the Company to the Customer shall remain with the Company until full paid has been received from the Customer.

7.7 Risk in all goods, equipment and materials supplied by the Company to the Customer shall pass to the Customer at the time of supply to the Customer.

 

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8.  GUARANTEE

8.1 Advice on whether the Customer is “a consumer” or otherwise protected by some or all of the consumer protection legislation in force in the United Kingdom may be obtained from any local Trading Standards Office, the Citizens Advice Bureau, the Office of Fair Trading or any firm of Solicitors (who may charge). Online guidance may be obtained at www.consumerdirect.gov.uk

8.2 The Customer who is a consumer has certain minimum statutory rights regarding the return of defective goods and claims for losses. These rights are not affected by these terms.

8.3 In addition to the statutory rights provided by English law the Company guarantee our work for a period of 12 months from completion against all defects which are due to poor workmanship or defective materials supplied by the Company. This guarantee applies only to the Customer to whom the work or materials were supplied. The Company shall be liable under this guarantee only for defects which appear during this 12 month period and which are promptly notified to the Company in writing at its trading address or registered office set out on its letterhead.

8.4 On notification by the Customer of such defects, the Company will investigate the cause and if they are the Company’s responsibility under the terms of this guarantee the Company will promptly remedy them or, at the Company’s option, employ other contractors to do so. Any remedial work which is put in hand by the Customer directly without first notifying the Company and allowing the Company a reasonable opportunity to inspect and agree such work and its cost will invalidate this guarantee in respect of those defects.

8.5 If the Company accepts   liability to make good by replacement or repair defects which appear in goods supplied by the Company and which arise solely from the faulty design (if by the Company) of the materials or workmanship then such acceptance of liability is subject to the following limitations:-

i)     That the goods have been used solely for their proper and normal use.

ii)     That the defect arises within 12 months after the despatch of the original goods and notice is served upon the Company within 14 days of the discovery of the defect.

iii)     Defects arising out of fair wear and tear are excluded.

iv)     Defects caused by accidental damage are excluded.

v)     That no alterations or modifications (other than by the Company) have been made to or affecting the goods.

 

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9. QUALITY STANDARDS

9.1 The Company will complete its work to the agreed specification and, in the absence of any other contractual term as to quality, to a satisfactory quality.

 

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10. ACCESS TO PREMISES / WORK ON THE VESSEL

10.1 No work or services shall be carried out on a vessel, gear, equipment or other property on the Company’s premises without its prior written consent. It shall be an absolute condition that any work is carried out in full compliance with the Company’s Health and Safety, environmental and access policies and that it does not cause any nuisance or annoyance to the Company, any other Customer or person residing in the vicinity, and does not interfere with the schedule of work or the good management of the Company’s business. The Company shall not be responsible to customers or third parties for the consequences of any person’s failure to respect any part of this condition but the Company shall be entitled to demand the immediate cessation of any work which in its view breaks these requirements.

10.2 While the Company or its subcontractors are working on the Customer’s vessel or equipment the Customer shall not have access to it except by prior arrangement. We will agree reasonable access when it is safe to do so and when it will not interrupt or interfere with our work schedule.

 

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11. TERMINATION

11.1 The Company shall have the right to terminate the contract tin writing in the event of the Cus-tomer becoming bankrupt or entering into any composition or arrangement with his creditors or if, being a Company, it shall enter into liquidation (otherwise than for the purpose of amalgamation or reconstruction or any arrangement with its creditors, or shall

have a receiver appointed of the whole or any part of its property.

11.2 The Company shall be entitled at its discretion to elect either to fulfil or determine any contract if from any cause (other than negligence or any deliberate act on the part of the Company) and at any time:-

a)     if in the case of a contract for works to an existing craft  the craft shall become unrepairable in the opinion of the Company, or

b)     in the case of a contract to construct a new craft if the Company’s premises plant machinery equip-ment or any of them shall be seriously damaged so as to make it impracticable for the Company to complete the craft

If the Company shall elect to determine the contract under this clause it shall forthwith refund to the Customer any installments of the purchase price received or any other payments  received whereupon the contract shall absolutely determine in all respects as if it has been completed and the Customer shall have no further claim against the Company.

11.3 In the case of a contract to construct a new craft if the Company’s premises, plant or machinery or the craft itself its equipment or the materials intended for it are so seriously damaged as to prevent the delivery of the craft within a reasonable time after any delivery date quoted by the Company then the Customer may determine the contract whereupon the Company shall refund to the Customer any installments of the purchase price received by it and thereupon the contract shall absolutely determine in all respects as if it had been completed and neither party shall have any further right to claim against the other.

 

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12. INSURANCE OF NEW CRAFT

In the case of a contract to construct a new craft, until the craft has been accepted or shall deemed to have been accepted by the Customer she shall be at the risk of the Company who shall make good all damage sustained by her before the date of the acceptance. The Company shall insure against all ap-propriate risks and in the event of any craft  equipment or materials sustaining damage at any time prior to delivery and money received in respect of such insurance shall be applied by the Company in making good the damage during ordinary working hours in a reasonable and workmanlike manner. However, if the Company cannot reasonably be expected to make good such damage and unless the contract is determined under sub clause 11.2 hereof, the Company shall pay to the Customer the in-surance monies so received but not so as to exceed any installments then paid by the Customer. The Customer shall not on account of the said damage or repair be entitled to reject or to make any objec-tion to the craft’s equipment or materials or to make any claim in respect of any resultant depreciation in its or their value or utility. The liability to insure this clause shall cease upon delivery of the craft to the Customer.

 

 

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13. DESIGN

i)     Any copyright design right or similar protection in all drawings specifications and plans prepared by the Company or its architects shall remain the property of the Company.

ii)     The Company reserves the right to make any change without notice in materials, dimensions and design which having regard to all the circumstances it thinks reasonable or desirable.

 

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14. BUSINESS CUSTOMERS

This clause applies in any case where the Company supplies goods to a person who buys in the course of a business ’’a Business Customer’’.

i)     No article supplied by the Company to a Business Customer shall carry any warranty or be subject to any condition express or implied as to quality or as to fitness for any particular purpose unless the Busi-ness Customer when he orders that article sufficiently explains the purpose for which it is required and makes it clear that he is relying on the Company’s skill and judgement.

ii)     No article not manufactured by the Company ordered from the Company by name type and/or size by a Business Customer shall carry any warranty or be subject to any condition save so far as the Com-pany can pass on a manufacturer’s warranty.

iii)     In no event does the Company accept liability to a Business Customer for consequential damage be-yond replacement of the faulty or unsuitable article supplied.

 

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15. LIEN

In addition to any right of lien to which the Company may by law be entitled the Company shall be entitled to a general lien on all goods or craft of the Customer for the time being in the Company’s possession (although such goods or craft or the work done upon such goods or craft may have been paid for) for the unpaid price of any other goods or craft sold and delivered and all services provided to the Customer by the Company under any contract.

 

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16. CARRIAGE

If the Customer requests delivery at any place other than the Company’s works the Company will sub-ject to the prior payment of the price of the craft or work done and the costs of carriage incurred or to be incurred, as agents for the Customer arrange for the despatch of the craft in accordance with such request at the entire risk of the Customer.No claim shall be made by the Customer against the Com-pany whatsoever in respect of loss of damage arising therefrom.

 

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17. RIGHT OF SALE

17.1 The Company accept vessels, gear, equipment and other property for repair, refit, maintenance or storage subject to the provisions of the Torts (Interference with Goods) Act 1977. This Act confers a Right of Sale on the Company in circumstances where the Customer fails to collect or accept re-deliv-ery of the goods (which includes a vessel and any other property). A sale will not take place until the Company has given notice to the Customer in accordance with the Act. For the purpose of the Act it is recorded that:

17.1.1 Goods for repair or other treatment are accepted by the Company on the basis that the Cus-tomer is the owner of the goods or the owner’s authorised agent and that he will take delivery or arrange collection when the repair or treatment has been carried out;

17.1.2 The Company’s obligation as custodian of goods accepted for storage ends when the Company gives notice to the customer.

17.1.3 The place for delivery and collection of goods shall normally be at the Company’s premises. Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause 8.

17.2 Maritime Law entitles the Company in certain circumstances to bring action against a vessel to re-cover a debt or damages. Such action may involve the arrest of the vessel through the Courts and its eventual sale by the Court. This right of arrest and sale may continue to exist against a vessel after a change of ownership. Sale of a vessel or other property may also occur through the enforcement of a court order or judgement.

 

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18. SUBCONTRACTING

18.1 We Company may subcontract all or part of the work entrusted to us by the Customer, on terms that any such subcontractor shall have the protection and benefit of all rights and conditions, and of all limitations and exclusions of liability, which exist for the Company under these Terms of Business. Where the Company exercises this right the Company shall remain responsible to the Customer for the performance of its subcontractor.

 

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19. DEFAULT

i)     Should default be made by the Customer in paying any sum due under any order for goods or work as and when it becomes due the Company shall have the right to suspend all further deliveries until the default be made good or to cancel the order so far as any items remain to be delivered thereafter.

ii)     In the case of partial completion of an order the Company shall be entitled to the quantum meruit in respect of all work done by it without prejudice to its rights should the failure to complete be occa-sioned by the Customer.

 

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20. CAR PARKING

i)     The Customer may park a motor vehicle on the Company’s, premises only in such areas designated for that purpose by the Company and the Customer parks such motor vehicle at his own risk. Neither the Company nor its employees or agents shall be liable for any loss or damage to the motor vehicle arising from any cause whatsoever.

ii)     The Company reserves the right to move any motor vehicle at the risk of the owner and without the Company being liable for any damage to the motor vehicle.

iii)     The Company reserves the right to make charges in respect of parking a motor vehicle.

 

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21. NOTICES

21.1 Notice to the Customer shall be sufficiently served if personally given to him or if sent by first class post to the Customer’s last known address. Notices to the company should be sent by first class post to its principal trading address or registered office.

 

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22. INTERPRETATION

It is hereby specifically agreed that the contract shall be personal to the Customer and no rights arising thereunder shall be assigned by the Customer without the express written consent of the Company.

i)     The term ‘Company’ shall include any associated or subsidiary Company of the Company.

ii)     The term ‘Customer’ shall include any person or body contracting in any way with the Company.

iii)     The term ‘craft’ shall include any vessel or part of a vessel of any description whatsoever.

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23.  LAW AND JURISDICTION

23.1 Any contract or series of contracts made subject to these terms shall be subject to and governed by English law and

23.2 In the case of Business Customers any dispute arising under them shall be submitted to the exclusive jurisdiction of the Courts of England and Wales.

23.3 In the case of customers who are consumers or who are not contracting in the course of business any dispute shall be submitted to the non-exclusive jurisdiction of the Courts of England and

Wales.

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24.  DISPUTE RESOLUTION

24.1 The BMF and the RYA recommend that disputes arising under a contract which is subject to these terms shall, when they cannot be resolved by negotiation, with the written agreement of the parties be submitted to mediation or failing that to arbitration under the BMF’s Dispute Resolution Scheme, which is approved by the RYA.

24.2 Details of the mediation scheme operated by the BMF are available at

www.britishmarine.co.uk/mediation.

24.3 Matters suitable for arbitration shall be submitted to a single Arbitrator in accordance with the BMF’s Dispute Resolution Scheme. The provisions of the Arbitration Act 1996 shall apply.

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