1.1. In this Agreement the following words shall have the following meaning:
“Company” shall mean Val Wyatt Marine Limited;
“Marina Premises” means Willow Marina, including its dock walls, and any roads, car parks, buildings, the mooring area known as Oxon Bank, and other areas, equipment and facilities owned or operated by the Company, ;
“Owner” means the owner of the vessel or, any charterer, master, agent or other person for the time being in charge of the vessel, excluding the Company;
“Price” means the price of the Services payable by the Owner to the Company;
“Services” means the services to be provided by the Company to the Owner.
2. PRICES AND ESTIMATES
2.1. Unless otherwise agreed in writing, the Price shall be based on time and materials actually expended on, or used in connection with the Services at the current hourly rate or price.
2.2. The Company shall exercise reasonable skill and judgement in providing a quotation for the 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. The Company will inform the Owner as soon as reasonably possible of any proposed increases in quotations found to be necessary and the reasons for them. The Company will only proceed with the Services with the approval of the Owner. The Owner 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. All prices and quotations are inclusive of VAT, unless otherwise stated.
3.1. Unless otherwise agreed in writing the Price and payment for the Services shall be due immediately on the date of the invoice or, if earlier, prior to the departure of the vessel. Payment shall be deemed to have been made when we receive cash or cleared funds at our bank.
3.2. If payment is not received within 30 days of the due date interest shall become due and payable from the due date until the date of actual payment at the rate of 4% above the 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.
3.3. In the case of invoices not paid within 30 days the Company has the right to discontinue the provision of the Services to the Owner whether or not the unpaid invoice relates to the provision of such Services.
3.4. The Company has the right to exercise a general lien upon the vessel, and/or its gear and equipment and/or any goods while upon the Marina Premises pending payment in full of all sums due to it.
3.5. The Company reserves the right to continue to charge for storage, hard standing, berthing and/or any ongoing services at its usual commercial rates until payment by the Owner and removal of the Vessel or property from the Marina Premises. The Owner 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 the Company or lodgement of a cash deposit with a solicitor sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for our 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.
3.6. The terms of this Agreement are subject to the provisions of the Torts (Interference with Goods) Act 1977 and for the purposes of this Act it is hereby expressly agreed that the Company’s obligations to the Owner as custodians of the Vessel terminate upon the expiry or lawful termination of this Agreement. Pursuant to this Act the Company has a right of sale exercisable in certain circumstances.
4.1. Any time given for the provision of the Services is given in good faith but is an estimate only and is not guaranteed. The Company shall not be responsible for any delay in the provision of the Services or for the consequences of any such delay (including but not limited to any loss or damage incurred by the Owner) unless it arises from the negligence or deliberate act or wilful default of the Company, its servants or agents.
5. VESSEL MOVEMENTS
5.1. 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. The Owner must pay the Company’s reasonable charges for such work. The Company will provide the Owner with an estimate of the likely costs and charges relating to such work prior to incurring them.
6.1. The Company shall not be liable for any loss, theft or any other damage of whatsoever nature caused to the Vessel and/or other property (whether insured or not) belonging to the Owner or others claiming through the Owner or for any delay arising from any cause whatsoever except to the extent that such loss, theft, damage or delay was caused by or resulted from the negligence or deliberate act of the Company or its servants or agents.
6.2. The Owner shall indemnify the Company against any loss damage or costs reasonably incurred by, and all claims or proceedings instituted against the Company, its servants or agents which may be caused by the Vessel or the Owner, his servants, agents, crew, guests or workers except to the extent that such loss, damage, costs, claims or proceedings may be caused by an act or omission of the Company its servants or agents.
6.3. The Vessel and gear are moved, stored or otherwise managed and kept at the sole risk of the Owner who shall ensure that the Vessel and/or his property is comprehensively insured against all loss or damage however caused, which insurance must include liability to third parties (including public liability and where relevant employers liability) in respect of the Owner, the Vessel, the crew for the time being and the Owner’s agents, servants, visitors, guests and workers in a sum of not less than £2million in respect of each accident or damage. The Owner shall provide evidence of such insurance to us within 7 days of a request to do so.
6.4. The Company shall not be under any duty to salvage or preserve the Vessel or other property belonging to the Owner from the consequences of any defect in the Vessel or property concerned unless it has been expressly engaged to do so by the Owner on commercial terms. Similarly the Company shall not be under any duty to salvage or preserve the Vessel or other property belonging to the Owner from the consequences of an accident which has not been caused by the Company’s negligence or some other breach of duty on its part. However the Company reserves the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment. In such circumstances the Company shall be entitled to charge the Owner for the work carried out on a normal commercial basis.
7. FORCE MAJEURE
7.1. The Company shall be under no liability for any delay or failure to provide the Services caused by any act or circumstances beyond the Company’s reasonable control.
8. RETENTION OF TITLE / RISK
8.1. Title to all goods, equipment and materials supplied by the Company to the Owner shall remain with the Company until full payment of the Price has been received by us.
8.2. Risk in all goods, equipment and materials supplied by the Company to the Owner shall pass to the Owner at the time of supply to the Owner.
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 the Marina Premises without the prior written consent of the Company except for minor running repairs or minor maintenance of a routine nature by the Owner or his regular crew. It shall be an absolute condition that all work is carried out in full compliance with the Company’s Health and Safety, environmental and access policies and that it does not cause any nuisance or annoyance to the Company, any other customer or person residing in the vicinity, and does not interfere with the Company’s schedule of work or the good management of the Company’s business. The Company shall not be responsible to the Owner or third parties for the consequences of any person’s failure to respect any part of this condition but shall be entitled to demand the immediate cessation of any work which in the Company’s opinion is in breach of these requirements.
9.2. While the Company or its subcontractors are working on the Vessel, its gear and/or equipment the Owner shall not have access to it except by prior arrangement. The Company 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. The Company accepts vessels, gear, equipment and other property for repair, refit, maintenance or storage subject to the provisions of the Torts (Interference with Goods) Act 1977 (“the Act”). This Act confers a Right of Sale on the Company in circumstances where the Owner 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 the Company has given notice to the Owner 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 the Company on the basis that the Owner is the legal owner of the goods and that he will take delivery or arrange collection when the repair or treatment has been carried out;
10.1.2. the Company’s obligation as custodian of goods accepted for storage ends when it gives notice to the Owner;
10.1.3. the place for delivery and collection of the goods shall be the Marina Premises, unless otherwise agreed in writing.
10.2. Maritime Law entitles the Company 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. The Company may subcontract all or part of the Services, 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 the Company under this Agreement.
12.1. Any notice served under this Agreement shall be in writing and shall be sufficiently served if delivered personally or posted to the last known address or sent by email or facsimile. Any notice shall be deemed received within 48 hours after the time of posting and any notice given by facsimile or email shall be deemed to have been received within 48 hours after dispatch to the correct email address of the addressee.
13.1. Any indulgence granted by the Company to the Owner and any failure by the Company to insist upon strict performance of these terms shall not be deemed a waiver of any of the Company’s rights or remedies nor be deemed a waiver of any subsequent default by the Company.
13.2. The invalidity in whole or in part of any clause in this Agreement shall not affect the validity of the remainder of such clause or this Agreement.
13.3. This Agreement is between the Company and the Owner as principals and is not assignable by the Owner. The Company may without consent assign or sub-contract all or any of its rights and obligations hereunder.
13.4. For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement does not and is not intended to give rights to enforce any of its provisions to any person who is not a party to it.
14. LAW AND JURISDICTION
14.1. This Agreement shall be governed by and construed in accordance with English Law and both parties hereby agree to the exclusive jurisdiction of the English Courts.
14.2. All disputes that cannot be resolved between the parties arising out of or in connection with this Agreement, shall be referred to the Chairman for the time being of the British Marine Federation to appoint an arbitrator to determine such dispute and the provisions of the Arbitration Act 1996 or any amending legislation shall apply.