THESE TERMS OF BUSINESS APPLY TO ALL CONTRACTS FOR WORK AND FACILITIES OR GOODS UNDERTAKEN BY US ON OR AFTER 31 OCTOBER 2012
1.1 We shall not be liable for any loss or damage caused by events or circumstances beyond our
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 us for work or storage, and harm to persons
entering our premises or using any of our facilities or equipment.
1.2 We shall take 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; but in the absence of any negligence or other breach of duty by
us vessels and other property are left with us at the customer’s own risk and customers should
ensure that their own personal and property insurance adequately 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 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 some other 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 normal commercial basis.
1.4 Customers may themselves be liable for any loss or damage caused by them, their crew 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. Customers shall be obliged to produce evidence of such insurance to us within 7 days
of a request to do so.
1.5 Nothing in these Terms of Business shall limit or exclude our liability for death or personal injury
caused by our negligence or the negligence of our employees, agents or sub-contractors; for
fraud or fraudulent misrepresentation; or otherwise to the extent that it would be illegal for us to
exclude or attempt to exclude liability.
2 PRICES AND ESTIMATES
2.1 In the absence of express agreement to the contrary our price for work shall be based on labour
and materials expended and services provided.
2.2 We will exercise reasonable skill and judgment when we 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 examination 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.
2.3 We 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 increase in price.
3.1 Any time given for completion 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.
4 VESSEL MOVEMENTS
4.1 We reserve the right to move any vessel, gear, equipment or other property at any time for
reasons of safety, security or good management of our business and premises.
5.1 Unless otherwise agreed between us payment for all work, goods and services shall be due
immediately on invoice date. Payment shall be deemed to have been made when we receive cash
or cleared funds at our bank.
5.2 We have the right to charge interest on any sum outstanding for more than 30 days (except in
the case of a reasonable and proportionate retention by the customer of any amount genuinely in
dispute between us and the customer) on the outstanding balance at 4% above Bank of England
base rate which may be calculated daily up to the date of actual payment. In the case of business
customers this rate will be substituted with the current rate applicable under late payment
5.3 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 all sums 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
payment (or provision of security) by the customer and removal of the vessel or property from our
premises. The customer shall be entitled to remove the vessel or other property upon providing
proper 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 reasonably acceptable to us,
sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision
for our prospective legal costs. 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.
5.4 Our 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 RETENTION OF TITLE / RISK
6.1 Title to all goods, equipment and materials supplied by us to a customer shall remain with us until
full payment has been received by us.
6.2 Risk in all goods, equipment and materials supplied by us to a customer shall pass to the
customer at the time of supply to the customer.
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 www.adviceguide.org.uk.
7.2 A 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.
7.3 In addition to the statutory rights provided by English law we 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 us. This guarantee applies only to the customer to whom the work or materials
were supplied. We shall be liable under this guarantee only for defects which appear during this 12
month period and which are promptly notified to us in writing at our trading address or registered
office set out on our letterhead. The geographical area within which this guarantee will be honoured
is restricted 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 contractors to do so. Any remedial work which is put in hand by the customer directly
without first notifying us and allowing us a reasonable opportunity to inspect and agree such work
and its cost will invalidate this guarantee in respect of those defects.
7.5 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:
7.5.1 no article supplied by us to a Business Customer shall carry any express or implied term as to
its quality or its 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 judgement;
7.5.2 no proprietary 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 Business Customer any rights we may
have against the manufacturer or importer of that article; and
7.5.3 we accept no liability to indemnify a Business Customer against any loss of profit or turnover
which he or his customer or any other person may sustain in consequence of the failure of
any faulty or unfit article supplied by us.
8 QUALITY STANDARDS
8.1 We will complete our work to the agreed specification and, in the absence of any other contractual
term as to quality, to a satisfactory quality.
9 ACCESS TO PREMISES/WORK ON THE VESSEL
9.1 No work or services shall be carried out on a vessel, gear, equipment or other property on our
premises without our prior written consent (which consent shall not to be unreasonably withheld or
delayed) except for minor running repairs or minor maintenance of a routine nature by the customer
or his regular crew. It shall be an absolute condition that all work is carried out in full compliance with
our health and safety, environmental and access policies and that it does not cause any nuisance or
annoyance to us, any other customer or person residing in the vicinity, and does not interfere with
our schedule of work or the good management of our business and our said consent to work or services
being carried out may be revoked with immediate effect in the event of any breach of such
conditions. We shall not be responsible to customers or third parties for the consequences of any
person’s failure to respect any part of this clause 9.1 but we shall be entitled to demand the
immediate cessation of any work which in our view breaches the requirements of this clause 9.1.
9.2 While we or our subcontractors are working on a 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.
10 RIGHT OF SALE
10.1 We 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 us in circumstances where the customer fails to collect or accept re-delivery of the goods
(which includes a vessel and any other property). A 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:
10.1.1 goods for repair or other treatment 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;
10.1.2 our obligation as custodian of goods accepted for storage ends when we give notice to the
10.1.3 the place for delivery and collection of goods shall normally be at our premises.
Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause
10.2 Maritime Law entitles us in certain 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 after a change of
ownership. Sale of a vessel or other property may also occur through the enforcement of a court
order or judgement.
11.1 We 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 us under these Terms of Business. Where we exercise this right we shall remain responsible to the customer for the performance of our subcontractor.
12.1 Notice to a 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 us should be sent by first class post to our principal trading address or registered office.
13 LAW AND JURISDICTION
13.1 Any contract or series of contracts made subject to these terms and any non-contractual obligations arising out of, or in connection, therewith shall be governed by and construed in accordance with English law.
13.2 Each of the parties irrevocably agrees that any and every dispute (and any non-contractual obligations, as aforesaid) arising out of or in connection with a contract or series of contracts subject to these terms shall:
13.2.1 if one party acts as consumer (meaning a natural person acting for purposes outside of a
trade, business or profession), be subject to the non-exclusive jurisdiction of the English
13.2.2 where no party acts as consumer, be subject to the exclusive jurisdiction of the English courts.
- DISPUTE RESOLUTION SCHEME
14.1 The BMF and the RYA recommend that disputes arising out of or in connection with a contract or
series of contracts subject to these terms, when they cannot be resolved by negotiation, be submitted
with the written agreement of the parties, to mediation under the BMF’s Dispute Resolution Scheme.
Details of the Scheme are available at www.britishmarine.co.uk/drs.
Published by the British Marine Federation and in consultation with the RYA,
who recommend that where disputes cannot be negotiated they be submitted to mediation under
the BMF’s Dispute Resolution Scheme.