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.
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
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.
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.
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.
PRICES AND ESTIMATES
in the absence of express agreement
to the contrary our price for work shall be based on labour and materials expended
and services provided.
we will exercise reasonable
skill and judgement 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.
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
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.
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
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.
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, both before and after any judgement. in the case of business
customers this rate will be substituted with the current rate applicable under late payment
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.
our customers’ attention is drawn also to the note at clause
10 of these Terms of Business regarding other rights which exist at law.
RETENTION OF TITLE / RISK
Title to all goods,
equipment and materials
supplied by us to a customer shall remain with us until full payment has been received
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.
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.
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.
to the statutory rights provided by scottish
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.
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.
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
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;
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
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.
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.
ACCESS TO PREMISES/WORK ON THE VESSEL
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 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.
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.
RIGHT OF SALE
10.1 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 decree.
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.
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.
LAW AND JURISDICTION
13.1 any contract or series of contracts made subject to these terms
shall be subject
to and governed by scottish
13.2 in the case of Business
customers any dispute
arising under them shall be submitted to the exclusive
jurisdiction of the courts of scotland.
13.3 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
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 mediation
scheme operated by the Bmf are available at www.britishmarine.co.uk/drs.