1. INCORPORTATION OF TERMS
1.1 These terms of Business shall be incorporated into and shall apply to
all contracts for work and facilities or goods undertaken by us on or after
31 March 2003.
1.2 No Variation of any of these Terms of Business shall be effective
unless in writing and signed by our duly authorised representative.
2. LIABILITY
2.1 We shall not be liable for any loss or damage caused by any event or
circumstance beyond out reasonable control (such as extreme weather
conditions, the actions of third parties not employed by us, any defect in
any part of a customer’s or third party’s vessel or latent defects in our
equipment); this includes, but without limitation, loss or damage to
vessels, gear, equipment or other goods left with us for repair or storage
and harm to persons entering our premises or using any of our facilities or
equipment.
2.2 We shall take all reasonable and proportionate steps having regard to
the nature and scale of our business to maintain security at our premises,
and to maintain our facilities and equipment in reasonably good working
order. Subject to this, vessels, gear, equipment or other goods are left
with us at customer’s own risk and customers should ensure that their own
personal property insurance covers such risks.
2.3 We shall not be under any duty to salvage or preserve a customer’s
vessel or other property from the consequences of any defect in the vessel
or property concerned unless we shall have been expressly engaged to do so
by the customer on commercial terms. Similarly, we shall not be under any
duty to salvage or preserve a customer’s vessel or other property from the
consequences of an accident for which we are not responsible. However, we
reserve the right to do so in any appropriate circumstances, particularly
where a risk is posed to the safety of people, property or the environment.
Where we do so, we shall be entitled to charge the customer concerned on a
normal commercial basis.
2.4 Customers may themselves be liable for any loss or damage caused by
them, their crew and/or their vessels and while their vessel or other
property is on our premises or is being worked on by us they shall be
obliged to maintain adequate insurance, including third party liability
cover for not less than £2,000,000, and, where appropriate, Employer’s
Liability cover in respect of any employee to at least the statutory
minimum. The customer shall be obliged to produce evidence to us of such
insurance within 7 days of a request to do so.
3. PRICES AND ESTIMATES
3.1In the absence of express agreement to the contrary our price for work
shall be based on time and materials expended and services provided.
3.2When we give an estimate or indication of price - in writing or orally -
we will exercise reasonable skill and judgment in doing so. Such estimates
are subject always to the accuracy of information provided by the customer
and are usually based only on a superficial examination and will not
include the cost of any additional repairs or work found necessary to the
vessel and/or gear or equipment during the work nor the cost of any
extensions to the work comprised in the estimate.
3.3We will inform the customer promptly of any proposed increase in
estimated prices and the reasons therefore and will only proceed with the
work with the approval of the customer. In those circumstances the
customer's liability for any work already completed or goods already
supplied or to be supplied shall be unaffected.
4. DELAYS
4.1 The Time for competition of our work is given in good faith but is not
guaranteed. We shall not be responsible for any delay in completion of the
work or for the consequences of any such delay unless it arises from our
wilful acts or omissions or from our negligence. 5.
VESSEL MOVEMENTS
5.1 We reserve the right to move any vessel, gear, equipment or other goods
at any time for reasons of safety, security or good management of our
business and premises.
6. PAYMENT
6.1 Unless otherwise agreed in writing the price of all work, goods and
services shall be due immediately on invoice date.
6.2Where a customer delays in payment for more than 30 days or withholds
more than a proportionate sum against rectification of any alleged defects
we reserve the right to charge interest on the outstanding amount (both
before and after any judgment) at 4% over Royal Bank of Scotland plc.
6.3 We reserve a general right ("a general lien") to detain and hold onto a
customer's vessel or other property pending payment by the customer of any
sums actually due to us. We shall be entitled to charge the customer for
storage and the provision of any ongoing services at our normal daily rates
until actual payment by the customer and removal of the vessel or property
from our premises. Title to any replacement equipment or spare parts
supplied by us shall remain with us until payment in full of all sums due
to us. The customer shall at any time be entitled to remove the vessel or
other property upon providing satisfactory security, for example, a letter
of guarantee from a Bank reasonably acceptable to us or lodgement of a cash
deposit with a professional third party agent or with the British Marine
Federation, sufficient to cover the debt with interest and a reasonable
provision for our prospective legal costs where the debt is contested. This
right does not affect the customer's entitlement to withhold a
proportionate part of the price in respect of alleged defects but where
that amount is in dispute between us the customer shall be required to
provide security for the full amount pending resolution of the dispute.
6.4 In certain other circumstances we may be entitled to have vessels or
goods of the customer sold through the court for non-payment. 6.5 Our
Customer's attention is drawn also to the note at Clause 12.1 of these
Terms of Business regarding other rights which exist at Law. 7.
CONSUMER GUARANTEE
7.1 Advice on whether a 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 the
Governments Consumer Gateway website (http://www.consumerdirect.gov.uk).
7.2 Where a customer is also a consumer he has certain minimum statutory
rights regarding the return of defective goods and claims for losses. These
rights are not affected by these terms.
7.3 In addition to the statutory and other common law rights, where the
customer is a consumer, we guarantee our work for a period of 12 months
from completion against all defects which are due to poor workmanship or
defective materials. We shall be liable under this guarantee only for
defects which are due to poor workmanship or defective materials. We shall
be liable under this guarantee only for defects appearing during this 12
month period which must be promptly notified to us in writing at our
trading address or registered office. The geographical area within which
this guarantee will be honoured is restricted solely to the United Kingdom.
7.4 On notification by the customer of such defects, we will investigate
the cause and if they are our responsibility under the terms of this
guarantee we will promptly remedy them or, at our option, employ other
specialist contractors to do so. Any remedial work which is put in hands by
the customer other than through ourselves in accordance with the terms of
this guarantee may invalidate this guarantee in respect of such defects if
we are not advised beforehand and given the opportunity to inspect and
agree such work and its costs.
8 BUSINESS GUARANTEE
8.1 Where we supply goods or services to a partnership or company or to a
customer who is acting in the course of a business or a commercial
operation (a “Business Customer”) then:
8.1.1 We guarantee to the Business Customer that the work shall be carried
out using reasonable skill and care
8.1.2 Where we supply in connection with our work materials or parts, these
will be provided by a third party, we do not give any warranty, guarantee
or other term as to their quality, fitness for purpose or otherwise but
shall, where possible, pass on the benefit of any warranty, guarantee or
indemnity given by the manufacturer or importer of such materials or parts.
8.1.3 No materials or parts article supplied by us to a Business Customer
shall carry any express or implied term as to its quality or fitness for
any particular purpose unless prior to the supply the Business Customer has
sufficiently explained the purpose for which it is required and made it
clear that he is relying on our skill and judgment.
8.1.4 No materials or parts specified by name, size or type by a Business
Customer shall carry and such express or implied term but we will assign to
the Business Customer any rights we may have against the manufacturer or
importer of that article.
9. EXCLUSIONS OF LIABILITY
9.1 Except in respect of death or personal injury caused by our negligence,
or liability for defective products under the Consumer Protection Act 1987
or as expressly provided in these Terms of Business, we shall not be liable
to the Business Customer by reason of any representation (unless
fraudulent) or any implied warranty, condition or other term, or any duty
at common law or otherwise for any indirect or consequential loss or damage
( whether for loss of profit, loss of business, depletion of goodwill or
otherwise) costs, expenses or other claims for consequential compensation
whatsoever(howsoever caused) which arise out of the provision of the work
by us to the customer.
10. QUALITY STANDATDS
10.1 We shall complete our work to the agreed specification and, in the
absence of any other contractual term as to quality, to a satisfactory
quality.
11. ACCESS TO PREMISES/WORK ON THE VESSEL
11.1 No work shall be done on vessel, gear, equipment or other goods while
on our premises without our prior written consent other than minor running
repairs or minor maintenance of a routine nature by the customer, his
regular crew or members of his family not causing nuisance, or annoyance to
any other customer or person residing in the vicinity, nor interfering with
our schedule of work, nor involving access to prohibited areas.
11.2 Prior written consent will not be unreasonably withheld where:
11.2.1 The work is of a type for which we would normally employ a
specialist sub-contractor; or
11.2.2 The work is being carried out under warranty by the manufacturer
and/or supplied of the vessel or any part of the equipment to which the
warranty relates.
11.3 In every case neither the customer nor his invitees shall have access
to the vessel during periods of work by us on the vessel without our prior
consent, which shall not be unreasonably withheld. In the event of such
access being permitted it shall be at the customers own risk.
12. RIGHT OF SALE
112.1 Maritime Law entitles us in certain other circumstances to bring
action against a vessel to recover 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 following a change of ownership. Sale of a vessel may also occur
through the ordinary enforcement of a decree against the Owner of a vessel
or other property.
13 SUB-CONTRACTING
13.1 We may sub-contract all or part of the work entrusted to us by the
customer, on terms that any such sub-contractor shall have the protection
and benefit of all rights and conditions, and of all limitations and
exclusions of liability, contained in these Terms of Business. Where we
exercise this right we shall remain responsible to the customer for the
performance of our subcontractor.
14. INVALIDITY
14.1 If any provision of these Terms of Business is deemed for any reason
to be invalid, void or unenforceable in whole or in part, the validity of
these Terms of Business shall nonetheless remain in full force and effect
as if such provision had not originally been included. In such
circumstances, we and the customer shall negotiate in good faith in order
to agree the terms of a mutually acceptable and satisfactory alternative
provision in place of the invalid, void or deleted provision.
15. NOTICES
115.1 Notices to a customer shall be deemed to have been sufficiently
served if sent by first class post to the customer's last known address.
Notices to us should be sent by first class post to our principal trading
address or registered office. Any such notices shall be deemed to have been
received 48 hours from posting.
16. REGISTRATION
16.1 The customer consents to registration of our contract (and any
certificate given in respect thereof, for preservation and execution). A
certificate signed for and on behalf of us shall be sufficient to fix and
ascertain the sums due by the customer to us under our contract and shall
conclusive of the amounts due.
17. WAIVER
17.1 No waiver by us of any breach of these Terms of Business by the
customer shall be construed as a waiver of any subsequent breach of the
same or any other provision.
18 TERMINATION
18.1 Without prejudice to any other right or remedy available to us, we
shall be entitled to cancel the contract between us and the customer
without liability to the customer, and if work has been carried out but not
paid for, the price shall be immediately due and payable, notwithstanding
any previous agreement or arrangement to the contrary in the event of:
(i). the customer committing a breach of our contract provided we have
notified him of the breach and the breach has not been rectified within
seven days of receipt of such notice; or
(ii)the customer (being of body corporate) going into liquidation (other
than for the purpose of amalgamation or reconstruction) or having a
receiver appointed over any of its assets or undertaking or becoming
subject to an administration order or any other insolvency proceedings or,
(being an individual or partnership) the customer becomes apparently
insolvent, bankrupt or grants a trust deed for its creditors or the
customer makes any composition with its creditors or ceases or threatens to
cease to carry on business.
19 LAW AND JURISDICTION
19.1 These Terms of Business shall be governed and construed in accordance
with the laws of Scotland and the customer submits to the non-exclusive
jurisdiction of the Scottish Courts.
