These Terms of Business apply to all contracts with Shire Cruisers for goods and services other than boat hire.
1. LIABILITY
1.1 We shall not be liable for any loss or damage caused by events or circumstances 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, vehicles 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 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 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, Employers' Liability cover in respect of any employee. The customer shall be obliged to produce evidence to us of such insurance within 7 days of a request to do so.
1.5 Parcels and mail delivered to us for customers are accepted by us at customers' sole risk.
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 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 and/or 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.
2.4 Berths shall be charged for moorings or storage for the periods and at the rates of charge from time to time published by us.
3. DELAYS
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. PAYMENT
4.1 Unless otherwise agreed between us the price of 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 in our bank.
4.2 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% over 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 legislation.
4.3 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, 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.
4.4 Our customers' attention is drawn also to the note at cause 14.3 of these Terms of Business regarding other rights which exist at law.
5. RETENTION OF TITLE / RISK
5.1 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.
5.2 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.
6. GUARANTEE
6.1 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.consumerdirect.gov.uk.
6.2 A customer who is also 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.
6.3 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 consumer to whom the goods 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 registered office. The geographical area within which this guarantee will be honoured is restricted to the United Kingdom.
6.4 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.
6.5 We shall only undertake painting/ repainting work on the following terms:
Repainting steel boats for clients will be carried out using suitable paint systems following surface preparation and cleaning in accordance with industry good practice, and paint manufacturers’ guidance.
However, from time to time and despite our best endeavours, painted surfaces may subsequently suffer what is termed ‘micro-blistering’, being the microscopic separation of the top paint film from the primer surface; this is usually localized and therefore appears as a ‘blister’ or ‘bubble’.
This condition is generally of cosmetic concern only and where it occurs may be affected by weather, moisture and temperature conditions. It can also recede when conditions become more favourable, such as warmer and drier. Although a ‘smart’ finish is ideal and anticipated from painting, protection of the steel structure from corrosion is the primary purpose of the paint finish and micro-blistering does not normally expose the steel substrate and result in corrosion.
Therefore, unless corrosion is evident, cases of micro-blistering will not be considered a material defect. Repainting for cosmetic reasons alone will not be undertaken.
It is therefore important for Customers to understand that the level of service selected for painting/ repainting work is entirely at their discretion.
6.6 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 commercial operation (a 'Business Customer') then:
6.6.1 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.
6.6.2 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.
6.6.3 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.
7. QUALITY STANDARDS
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.
8. BERTH ALLOCATION AND VESSEL MOVEMENTS
8.1 Customers shall berth vessels in such a manner and position as we may require and adequate warps and fenders for the vessel shall be provided by the customer.
8.2 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.
8.3 Nothing in these terms shall grant the customer exclusive right to any berth, nor create any form of tenancy, nor grant any right to occupy any berth or premises beyond any period actually paid for.
8.4 We may have the use of the berth when it is left vacant by the customer.
8.5 Charges for launching and lifting vessels are set out in our tariff and are subject to availability at our discretion. Where the customer requests a specific date we reserve the right to charge him any additional costs, subject to our providing an estimate of such charges prior to incurring them.
9. ACCESS TO PREMISES/WORK ON THE VESSEL
9.1 Subject to paragraph 9.2 no work or services shall be carried out on a vessel, gear, equipment or other property on our premises without our prior written consent except for minor running repairs or minor maintenance of a routine nature by the customer, his regular crew ormembers 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.
9.2 Prior written consent will not be unreasonably withheld where:
9.2.1 The work is of a type for which we would normally employ a specialist sub-contractor; or
9.2.2 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.
9.3 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 shall not be unreasonably withheld.
9.4 Customers shall ensure that all gates are locked after they pass through at night.
9.5 No noisy, noxious or objectionable engines, radio, or other apparatus or machinery shall be operated within the premises so as to cause any nuisance or annoyance to any other users of the premises or to any person residing in the vicinity and the customer undertakes for himself, his guests and all using the vessel that they shall not behave in such a way as to offend as aforesaid.
9.6 Customers shall not for payment carry out any work to vessels or their equipment on our premises.
9.7 Customers must comply with any reasonable conditions stipulated by us relating to the use of our premises, facilities or equipment and must at all times comply with our Health and Safety and Environmental Policies and all relevant statutory rules and regulations.
9.8 Customers shall not use vessels on our premises for residential purposes without our consent. Such consent does not imply the consent of British Waterways or any other Authority.
9.9 Customers shall remove refuse and waste oil from site or place them in the appropriate recycling or waste containers provided by us. Customers shall keep areas round vessels tidy. We reserve the right without notice to dispose of any rubbish or surplus materials not identified, or of end-of-life vehicles.
9.10 Customers shall keep all animals under control when on the premises, and shall suitably dispose of their waste.
9.11 Subject always to the availability of parking space customers may only park vehicles on the premises in accordance with our directions.
9.12 All vessels afloat must display their name and licence in accordance with British Waterways bylaws including compliance with the Boat Safety Scheme.
9.13 The customer is responsible for reporting to us all accidents involving injury to any person or damage to any public or private property that occur on the premises as soon as possible after they occur.
10. COMMERCIAL USAGE
10.1 No part of our premises or any vessel or vehicle while situated therein or thereon shall be used by the customer for any commercial purpose, except where the customer has sought and obtained our prior written agreement.
11. PERSONAL NATURE OF THE LICENCE
11.1 The mooring or storage licence is personal to the customer and relates to the vessel described in the application for berthing. It may not be transferred or assigned to a new owner or to a different vessel, either temporarily or permanently, without our express written consent not to be unreasonably withheld.
11.2 Within 7 days of any agreement for the sale, transfer or mortgage of a vessel subject to this licence the customer shall notify us in writing of the name, address and telephone number of the purchaser, transferee or mortgagee, as the case may be.
12. CHANGE OF DETAILS
10.1 You are in charge of the Boat and are responsible for its safe navigation. In the event of any accident or damage involving You or any other people or any property You must:-
12.1 The customer must notify us in writing of the details of any change of name of the vessel or change of his address or telephone number.
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, 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.
14. RIGHTS OF SALE AND OF DETENTION
14.1 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:
14.1.1 Goods for repair, storage 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;
14.1.2 Our obligation as custodian of goods accepted for storage ends when we give notice to the customer;
14.1.3 The place for delivery and collection of goods shall be at our premises unless agreed otherwise.
14.2 Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause 6.1 above.
14.3 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 after a change of ownership. Sale of a vessel or other property may also occur through the ordinary enforcement of a court order or judgment.
15. TERMINATION BY OWNER
15.1 A contract for mooring, storage or workshop space may be terminated on 4 weeks' (or 16 weeks' in the case of annual contracts) written notice by the customer to us. In this event we will be entitled to recalculate the charge for the Berth using the rate or rates that would have been applicable to the actual period of the licence instead of the annual rate. If this recalculation results in a balance payable to us then the customer shall be required to pay that balance before removing the vessel from our premises. If there is a balance in favour of the customer we shall pay it to the customer upon the vessel's departure from our premises (but with a right of set-off in respect of any damage suffered by us or other monies owing).
16. TERMINATION BY US
16.1 We shall have the right (without prejudice to any other rights in respect of breaches of these Terms by the Owner) to terminate the
mooring agreement for any reason provided that it shall give the Owner not less than three months’ prior written notice.
16.2 In the event of any breach of these conditions by the customer, having regard to the nature and seriousness of the breach and if the breach is capable of remedy, we may serve notice on the customer specifying the breach and requiring him to remedy the breach within 14 days. If the customer fails to effect the remedy within that time, or if the breach is not capable of remedy, we may serve notice on the customer requiring him to remove the vessel from our premises immediately. If the customer fails to remove the vessel on termination of the mooring licence (whether under this Condition or otherwise), we shall be entitled:
16.2.1 to charge the customer at our normal rate for each day between termination of this licence and the actual date of removal of the vessel from the premises and/or
16.2.2 at the customer's risk (save in respect of loss or damage caused by our negligence or other breach of duty during such removal) to remove the vessel from the premises and thereupon secure it elsewhere and charge the customer with all costs reasonably arising out of such removal including alternative berthing fees.
17. NOTICES
17.1 Notices to a customer shall be deemed to have been sufficiently served if personally given to him or if sent by first class post (or in the case of termination, by recorded delivery) 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.
18. LAW AND JURISDICTION
18.1 Any contract or series of contracts made subject to these terms shall be subject to and governed by English law and
18.1.1 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.
18.1.2 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.
19. DISPUTE RESOLUTION
19.1 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.
19.2 Details of the mediation scheme operated by the BMF are available at www.britishmarine.co.uk/mediation.
19.3 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.
Shire Cruisers January 2014