terms and conditions

Terms of Business

THESE TERMS OF BUSINESS APPLY TO ALL WORK UNDERTAKEN AND FACILITIES OR GOODS SUPPLIED

1. LIABILITY

1.1 We shall not be liable for any loss or damage caused by any event or circumstance beyond our reasonable control (such as extreme weather conditions, the actions of third parties not employed by us or any defect in any part of a customer’s or third party’s vessel); this extends to 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.

1.2 We shall take all reasonable and proportionate steps to maintain security at our premises, and to maintain our facilities and equipment in reasonably good order. Subject to this and in the absence of any negligence or other breach of duty by us vessels, gear, equipment or other goods are left with us at the customer’s own risk and customers should ensure that their own personal insurance covers such risks.

1.3 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 which has not been caused by our negligence or another breach of duty on our part. 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 commercial basis.

1.4 Customers may themselves be liable for any loss or damage caused by them, their servants, agents or family 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.

2. PRICES AND ESTIMATES

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

2.2 When we give an estimate or quotation (“estimates”) of price - in writing or orally - we will exercise skill and judgement 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.

2.3 We will inform the customer promptly of any increase in estimated prices and reasons therefore and will only proceed with the work with the customer’s save where provided for in these terms of business. In these circumstances the customer’s liability to pay for any work already completed or goods already supplied or to be supplied shall be unaffected.

2.4 Any estimate is subject to acceptance within seven days.

2.5 Estimates cover only the work and/or items specified in them, and all additions, alterations, waiting time and any additional costs due to modified instructions will be charged to the customer. If, in the course of executing work, we find any defect in a vessel and/or its gear that in our opinion should be rectified without any delay and before the customer’s consent can be obtained, we reserve the right to carry out such necessary repair at our discretion and to charge the same to the customer. Notice of any such rectification will be forwarded to the customer as soon as reasonably possible.

2.6 Subject to express agreement in writing to the contrary, all estimates given by us are subject to the cost of labour and materials remaining at the same level as those prevailing at the time of the estimate, and the estimated price shall be increased or decreased by the amount by which the actual cost of labour, materials and overheads has increased or decreased by reason of variation of the aforesaid levels. However, the estimate shall not be adjusted to meet increased costs, which would not have occurred, but for our failure to proceed with the work with reasonable dispatch.

3. DELAYS

The time for completion of work is given in good faith but it 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 negligence.

4. VESSELS & GEAR

We reserve the right to move any vessel, gear, equipment or other goods at our discretion.

5. DEPOSITS

5.1 A deposit of 10% is payable upon the ordering of any goods or services.

5.2 The deposit is forfeit if the customer does not complete the purchase. The deposit is returnable to the customer if for some reason we are not able to perform our side of the contract for sale to the customer of any goods or services.

5.3 Part exchange values are not available as deposits.

5.4 Any outstanding balance of a purchase price is payable in advance of delivery of the goods and this will be notified at least 14 days in advance of the delivery date.

6. PAYMENT

6.1 Payment for all goods and services shall be due immediately on invoice date.

6.2 Pending receipt of payment in full without set off or deduction we reserve the right to charge interest on any sums outstanding after 30 days at 4% over Barclays Bank Plc rate.

6.3 We have the right to hold a vessel, its gear and equipment and any other goods on which we have worked or in respect of which we have provided services pending payment in full of all sums due to us in respect of the provision of any such work or services. During any such period of retention we reserve the right to continue to charge for storage.

6.4 If the vessel or goods are not removed within 30 days from the date of the invoice, we shall have the right thereafter to make reasonable storage charges.

7. DELIVERY

7.1 In the absence of any written agreement or arrangement to the contrary, delivery is given at our yard

8. GUARANTEE

8.1 Nothing in these terms affects the statutory rights of any customer.

8.2 Where we supply goods or services to a customer in the course of his business:

8.2.1 No such goods or services shall carry any express or implied term as to quality or fitness for any particular purpose unless prior to supply the customer has sufficiently explained the purpose for which it

is required and made it clear that he is relying on our skill and judgement.

8.2.2 No article specified by name, size or type by a business customer shall carry any such express or implied term but we will assign to the customer any rights we may have against the manufacturer or importer of that article.

8.2.3 In no event do we accept liability to a business customer for consequential loss or damage beyond replacement of any faulty or unsuitable article supplied by us.

9. PART EXCHANGE

9.1 The full part exchange value attributed to any goods will only be credited to a customer’s account by us after an engineer’s report has been obtained confirming condition of any goods taken by us in part exchange.

10. ACCESS TO PREMISES/WORK ON THE VESSEL

10.1 Subject to paragraph 10.2 no work shall be done on any vessel, gear, equipment or other goods while on our premises without our prior written consent.

10.2 Prior written consent will not be withheld where:

10.2.1 The work is of a type for which we would normally employ a specialist sub-contractor; or

10.2.2 The work is being carried out under warranty by the manufacturer and/or supplier of the vessel or any part of the equipment to which the warranty relates.

10.3 Notwithstanding the foregoing, during periods of work by us on the vessel, neither the customer nor

his invitees shall have access to the vessel without our prior consent, which consent shall not be unreasonably withheld.

11. RIGHT OF SALE

11.1 Where we accept vessels, gear, equipment or other goods for repair, refit, maintenance or storage (“Work”) we do so subject to the provision of the Torts (Interference with Goods) Act 1977. The Act confers

a right of sale on us in circumstances where the customer fails to collect or accept re-delivery of the goods (which includes a vessel and/or any other property). Such sale will not take place until we have given notice to the customer in accordance with the Act. For the purpose of the Act it is recorded that:

11.1.1 Goods for Work are accepted by us on the basis that the customer 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;

11.1.2 Our obligation as custodian of goods accepted for Work ends on our notice to the customer of termination of that obligation;

11.2 Maritime Law entitles us in certain other circumstances to bring an action against a vessel to recover

a debt or damages. Such an 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 judgement debt against

the owner of a vessel or other property.

12. SUB-CONTRACTING

12.1 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 all limitation and exclusions of liability, contained in these Terms of Business.

13. BROKERAGE: TERMS FOR SELLERS

13.1 An administration fee of £80 plus VAT is chargeable on all vessels accepted by us for sale as brokers which covers the cost of viewing the vessel listing and associated matters.

13.2 Commission is payable on brokerage at the rate of 8% plus VAT for UK sales or 10% plus VAT where the customer, the vessel or the buyer are not in the UK. A minimum brokerage charge of £400 plus VAT or

the percentage commission is chargeable whichever is the greater.

13.3 Upon registration of any goods for sale by us on a brokerage basis the proposed sale price will be agreed between us and the customer. The sale price is the price at which the goods will be advertised for sale. We will also agree a reserve price with the customer which we are permitted to negotiate down to but we undertake to use our best endeavours to achieve as high a price as possible. In the event of an offer being made by a potential purchaser lower than the reserve price, we will in all cases take instructions from the customer, such instructions to be confirmed by the customer in writing to us before any offer by a proposed purchaser is accepted.

13.4 The customer agrees to indemnify us and hold us harmless along with our agents and employees from any liability, cost, loss, damages award, sum payable by way of settlement or other expense of any kind (including reasonable legal fees) arising from any claim, demand or action alleging that the goods or use of them are contrary to any law, code or regulation in any country

13.5 We will:

13.5.1 Use our reasonable endeavours to sell the brokerage goods.

13.5.2 Advertise the brokerage goods in accordance with the information received from the customer.

13.5.3 Attend the vessel (at the cost of the customer if not brought to us) for advertising inspection

and viewing.

14. In the event of a sale of the brokerage goods we will hold any deposit or purchase funds in our account and will distribute the sale proceeds 30 days after clearance of the final payment in order to cover the eventuality of problems with the brokerage goods arising.

15. By signing the order form and entering this contract with us the customer confirms that he has notified to us any debts registered against the vessel and all defects or other problems or issues with the vessel of which the customer is aware.

16. GOODS IN OUR CARE FOR WORK AND STORAGE GENERALLY

16.1 Where a vessel and/or any other equipment is left with us for any period and for any purpose we accept delivery of the same as a bailee. The insurance and general care and maintenance of the vessel remain the sole responsibility of the customer and we accept no liability whatsoever for any loss or damage howsoever occasioned save where this has been caused by our own actionable negligence or breach of contract.

16.2 Storage accommodation cannot be sublet.

16.3 In the absence of any written agreement or arrangement to the contrary, we reserve the right to terminate the hire of any storage space by giving fourteen days’ notice in writing to the last known address of the Customer.

16.4 An attendant will be available at our premises as notified from time to time, and vessels, gear, equipment or property shall not be removed outside those working hours except by special arrangement in writing. An extra charge may be made for any specially arranged attendance provided by us.

16.5 In the event of the sale by the Owner of any vessel stored with us other than through ourselves as brokers the Owner shall pay to us a commission of 1% of the net sale Price.

16.6 We reserve the right to charge storage charges during such time as craft are being repaired and/or overhauled off or on site.

17. ANCILLARY PROVISIONS

If any provision of these Terms of Business is deemed for any reason to be invalid, the 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 provision.

18. 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.

19. These terms are subject to English law and any dispute arising under them shall be submitted to the jurisdiction of the Court of England and Wales.

20. These terms confer no rights on any third party and the provisions of the Contracts (Rights of Third Parties) Act do not apply.

Deva Marine Terms of Business