THESE TERMS OF BUSINESS APPLY TO ALL CONTRACTS FOR WORK AND FACILITIES UNDERTAKEN ON OR AFTER 1 OCTOBER 2010 AT SALCOMBE BOAT PARK
1.1 We shall not be liable for any loss or damage caused by any event or circumstance beyond our reasonable control (such as, but not limited to, severe 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 property vehicle or vessel); this extends to loss or damage to vessels, gear, equipment or other goods or property left with us for services, work or storage, and harm to persons entering on to our land or 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 activities on our land to maintain security on our land and premises, and to maintain our facilities and equipment in reasonably good working order. In the absence of any negligence or other breach of duty by us vessels, gear, equipment or other goods and property are left with us at the customer’s own risk and customers should ensure that their own personal and property insurance provides sufficient cover for 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 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 £3,000,000, and, where appropriate, Employers Liability cover in respect of any employee to at least the statutory minimum. Customers must produce evidence to us of such insurance within 7 days of our request to do so.
2.1 In the absence of express agreement to the contrary our price for the provision of work service or facilities shall be the current figure fixed by us from time to time .
3.1 The time for completion of delivery of services is given in good faith but is not guaranteed. We shall not be responsible for any delay in delivery of services, 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 goods or property at any time for reasons of safety, security or good management of our business, activities, land and premises.
5.1 Unless otherwise agreed between us the price of all work, goods, facilities and services shall be due immediately on invoice date. Payment shall be deemed to be made on receipt of cash or other cleared funds at our bank.
5.2 Where a customer delays in payment for more than 30 days (save in the case of a reasonable and proportionate retention by the customer in the case of any amount genuinely in dispute between the parties) we shall be entitled to charge interest on the outstanding amount at 4% over base rate for the time being of the Bank of England. Interest shall accrue at a daily rate from the date of invoice until the date of actual 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 actual payment (or provision of security) by the customer and removal of the vessel or property from our premises. The customer shall at any time 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 reasonable and proportionate part of the debt 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 9.2 of these Terms of Business regarding other rights which exist at law.
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 the Government’s Consumer Gateway website at www.consumerdirect.gov.uk
6.2 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 QUALITY STANDARDS
7.1 We will complete our services to the agreed specification and standard and, in the absence of any other contractual term as to quality, to a satisfactory quality.
8 ACCESS TO PREMISES/WORK ON THE VESSEL
8.1 No work or services shall be carried out on the vessel, gear, equipment or other goods while on our land and premises without our prior consent other than minor running repairs or minor maintenance of a routine nature by the customer or his regular crew or authorised contractors. Any work or services shall be effected in full compliance with our Health and Safety environmental and access policies and shall not cause any nuisance, or annoyance to us, any other customer or person residing in the vicinity, and must not interfere with our schedule of work, or the good management of our activities, business, land and/or premises. We shall not be responsible to customers or third parties for the consequences of any person’s failure to observe and perform his obligations under any part of these conditions. We shall be entitled (but not obliged) to demand the immediate cessation of any work which in our view breaks these requirements.
9 RIGHT OF SALE
9.1 Where we accept vessels, gear, equipment or other goods for storage we do so 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/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:
9.1.1 Goods for which we are to provide services, treatment or storage facilities 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 services, treatment or storage has been completed;
9.1.2 Our obligation as custodian of goods accepted for storage ends on our notice to the customer;
9.1.3 The place for delivery and collection of goods shall be at our land and premises unless we agree otherwise.
Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause 6.1 above.
9.2 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 or other property may also occur through the enforcement of a court order or judgment.
10.1 We may sub-contract all or part of the work or services 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, as 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.
11.1 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 Salcombe Harbour Office, Whitestrand, Salcombe, TQ8 8BU.
12 LAW AND JURISDICTION
12.1 Any contract or series of contracts made subject to these terms shall be subject to and governed by English law and
12.2 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.
12.3 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 of England and Wales.
13 CODE OF PRACTICE
13.1 Contracts for the provision of services and facilities at Salcombe Boat Park shall be subject to these Terms and to any Code of Practice from time to time currently affecting such services and facilities.In the case of any conflict between these Terms and such Code of Practice, the provions of these Terms shall prevail.