Terms & Conditions
THESE TERMS OF BUSINESS APPLY TO ALL CONTRACTS OF WORK UNDERTAKEN AND FACILITIES OR GOODS SUPPLIED ON OR AFTER 1ST APRIL 2014
1.1. In these Terms, unless the context requires otherwise:
MP means MarinePower Trading Limited, its successors and assigns and any of its employees, agents or other persons authorised by MP to act on its behalf.
Owner means the person(s) or entity named as Owner in these Terms and includes an employee of the Owner, authorised agent or a person in charge of the vessel with the Owner’s permission or any other person with a right in the vessel;
Marina means the marina, moorings and all such other water space and land associated with the marina and within MP’s or its Director’s control.
Vessel means the vessel named in these Terms (or one that is substituted for it with BGM’s prior written consent) and includes its gear or equipment or other goods (whether belonging to the Owner or not).
2.1. MP shall not be liable for any loss or damage caused by events or circumstances beyond its reasonable control, including but not exclusively extreme weather conditions, actions of third parties not employed by MP or latent defects, and including loss or damage to vessels, gear, equipment or other goods left with is for repair or storage, and harm to persons entering the premises and/or using the facilities or equipment
2.2. Customers should ensure that their own personal and property insurance covers such risks.
2.3. Customers may be liable for any loss or damage caused by them, their crew or their vessels.
2.4. Any vessel, gear, equipment or other goods are left with MP at the Customer’s risk.
2.5. Customers should maintain adequate insurance which should also cover third party liability of a least £2,000,000.
3. PRICES & ESTIMATES
3.1. In the absence of express agreement to the contrary the price for work shall be based on time and materials expended and services provided.
3.2. When an estimate or indication of price is given, either in writing or orally, MP will exercise skill and judgement in doing so. 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 additional repairs or work found necessary to the vessel and/or gear or equipment during the work nor the cost of any extensions to the work comprised in the estimate
3.3. MP will advise the Customer promptly of any proposed increase in estimated prices and the reasons therefore and will only proceed with the work with the approval of the Customer. In those circumstances the Customer’s liability for any work already completed or goods already supplied or to be supplied shall be unaffected.
3.4. Estimated prices will be held for 30 days only.
4.1. The time for completion of the work is given in good faith but is not guaranteed.
4.2. MP will not be responsible for any delay in completion of the work or for the consequences of any such delay unless it arises from MP‘s wilful acts or omissions or negligence.
5. VESSEL MOVEMENTS
5.1. MP reserves the right to move any vessel, gear, equipment or other goods at its discretion for reasons of safety or good management.
5.2. The Customer authorises MP permission to operate their vessel, gear, equipment or other goods as necessary for purposes of moving, testing and/or inspection.
6.1. Unless otherwise agreed in writing, the price of all works, goods and services shall be immediately due on invoice date.
6.2. Pending receipt of payment in full without set off or deduction, MP reserve the right to charge interest on any sums outstanding after 30 days at 15% per month + VAT for every month or part thereof owing.
6.3. MP have a general lien to detain and hold onto the vessel or any other property at any time whilst in or on the Marina pending payment by the Owner of any sums due at any time to MP from the Owner on any account whatsoever, whether relating to rental, storage, permission, access, berthing charges, work done or otherwise. MP shall be entitled to charge the Owner for storage and the provision of any on-going services at our normal daily rates until actual payment (or provision of security) by the Owner and removal of the vessel or property from the Marina. The Owner shall at any time be entitled to remove the vessel or other property upon providing to MP proper security, for example by a letter of guarantee from a Bank reasonably acceptable to MP or lodgement of a cash deposit with a professional third party agent or with the British Marine Federation, sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for MP’s 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 the customer shall be required to provide security for the full amount pending resolution of the dispute.
MP shall be entitled to, on at least 28 days’ notice in writing to the Owner, to sell or dispose of or deal with the vessel or any other property as agent for, and at the expense of, the Owner and apply the proceeds in or towards the payment of such sums. Any such sale shall be on the basis of a reasonable offer immediately available, which may or may not amount to as much as the Owner may believe the vessel or any other property to be worth in any specialist market place. MP may or may not, in its absolute discretion, advertise the vessel or any other property for sale.
6.4. MP shall, upon accounting to the Owner for any balance remaining after payment of any sum due to MP, and for the cost of sale and disposal and/or dealing (including any legal costs) be discharged of any liability whatsoever in respect of the vessel.
7.1. Nothing in these terms affects the statutory rights of any Customer who contracts with MP as a consumer.
8. ACCESS TO PREMISES/WORK ON THE VESSEL
8.1. Subject to the terms of clause 12.2 no work shall be done on the Vessel while at the Marina without MP’s prior written consent (which may be withheld at its sole discretion) other than minor running repairs or minor maintenance of a routine nature by the Owner, his regular crew or members of his family not causing nuisance, or annoyance to any other Owner or person residing or visiting in the vicinity, nor interfering with MP’s schedule of work, nor involving access to prohibited areas.
8.2. Prior written consent will not be unreasonably withheld by MP where:
8.2.1. The work is of a type for which MP or those who normally carry out work on its behalf would normally employ a specialist subcontractor; or
8.2.2. MP are satisfied that the work is remedial and not servicing and 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; or
8.2.3. MP has set aside an area of the Marina where Owners may carry out work on their Vessels, and the work for which consent is sought is restricted to that area and is not to be carried out in a manner which is prohibited by MP
8.3. In every case neither the Owner nor his invitees shall have access to the Vessel during periods of work by MP on the Vessel without prior consent, which shall not be unreasonably withheld.
8.4. The Owner shall give prior written notice to MP when the Owners invitees shall be undertaking work on any Vessels. The Owner shall procure that all such invitees shall report to MP to confirm when on site at the Marina.
8.5. MP reserves the right to charge a yard commission on all works carried out on any Vessel whilst currently holding a berth either with or without a completed mooring agreement for work carried out on site or at another location in the Marina. In the absence of confirmation of the gross sale figure the commission will be assessed on a likely cost of completion.
8.6. MP will complete all work to Vessels to the agreed specification and, in the absence of any other contractual term as to quality, to a satisfactory quality.
8.7. All works of a mechanical or electrical nature shall only be carried out on the premises by MP’s appointed agent or subcontractor. Where an Owner would prefer to use an alternative supplier the Owner should make arrangements to have the Vessel removed to that supplier’s place of business.
9.1. MP warrants that all Products manufactured by MP or its subsidiaries or affiliates and sold by MP to the Customer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable MP installation drawing, and Supervision of Installation (SOI) performed by a MP Service Engineer (MSE) or any authorised service representative of MP.
9.2. MP’s obligation under the warranty shall be limited to defects as defined in 9.1 above of which MP is notified within twelve (12) months after the date that a MP authorised service representative and the Customer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from MP, whichever period shall first expire.
9.3. For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a MP authorised service representative and the Customer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from MP, whichever period shall first expire.
9.4. In the case of Products sold but not manufactured by MP or its subsidiaries or affiliates, MP’s sole obligation shall be to extend to the Customer the manufacturer’s warranty, provided that Customer complies with all applicable conditions of such warranty.
9.5. MP’s warranty obligations shall in any event be limited to the replacement or repair (at MP’s discretion) of any defective part.
9.6. It may sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where MP sends an engineer to the service location to effect the warranty repair, the Customer shall pay all travel expenses of the MP engineer and the Customer shall pay the hourly rate for the engineer for any travel time.
9.7. Defective Product or parts which are replaced under warranty shall be returned by the Customer at the Customer’s cost to MP to be received by MP at MP’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by MP. Where the defective Product or parts are not received by MP within four weeks, the Customer shall pay MP the full list price of the relevant Product or part and MP shall invoice the Customer accordingly.
9.8. Replacement and repair of a defective part shall be made where the Products are sent to MP or to a service station appointed by MP within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by the Customer and the part is found defective after inspection at MP or service station.
9.9. No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by MP for attachment or specifically approved for attachment by MP in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by MP caused due to incorrect set up or use is not covered under MP’s warranty terms.
9.10. No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than MP personnel or an authorized MP agent without MP’s prior consent.
9.11. In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in 9.1, Customer shall compensate MP for any cost that it has incurred in responding to the claim.
9.12. For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at MP’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by the Customer and agreed to by MP shall be paid by the Customer.
9.13. MP shall not be liable nor shall MP provide any warranty for software, interfaces, etc. made available to the Customer by MP but produced by other manufacturers. Where possible warranty rights against a manufacturer concerned shall be transferred by MP to the Customer.
9.14. MP does not warrant that the software will function without interruption or error, that all software defects can be eliminated and that the software will correspond to the Customer’s requirements and will function without error in each configuration the Customer selects, unless such configuration has been specified by MP.
9.15. MP accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Customer perform a data backup in a machine-readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.
9.16. The foregoing provisions set forth MP’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and MP shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or in law, are, to the extent permissible by law, herewith expressly excluded.
10. RIGHT OF SALE
10.1. Without prejudice to the right of sale within Clause 9, where MP accept Vessels or other goods for repair, refit, maintenance or storage it does so subject to the provisions of the Torts (Interference with Goods) Act 1977. This Act confers a Right of Sale on MP in circumstances where the Owner 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 MP have given notice to the Owner in accordance with the Act. For the purpose of the Act it is recorded that:
10.2. Goods for repair or other treatment are accepted by MP on the basis that the Owner is the lawful owner of the Vessel or the owner's authorised agent and that he will take delivery or arrange collection when the repair or treatment has been carried out;
10.3. MP’s obligation as custodian of goods accepted for storage ends on its notice to the Owner of termination of that obligation;
10.4. The place for delivery and collection of goods shall be at MP’s premises unless agreed otherwise. Advice regarding the Act and its effect may be obtained from any of the sources referred to in clause 13.1 above.
10.5. Maritime Law entitles MP 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 may also occur through the ordinary enforcement of a judgment debt against the Owner of a Vessel or other property.
11.1. MP may sub-contract all or part of the work entrusted to it 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, contained in these Terms. Where MP exercises its right to sub-contract it shall remain responsible to the Owner for the performance of such subcontractor.
12.1. Any notice or other communication to an Owner shall be sufficiently served if personally given to him, emailed or if sent by first class post or recorded delivery to the Owner's last known address (as notified in accordance with Clause 2.2). Notices to MP should be sent by first class post to its principal correspondence address or trading address. Notice shall be deemed to have been received if delivered personally, when left at the address; or if sent by pre-paid first-class post or recorded delivery, 48 hours after being sent.
13.1. These terms of business, which are in addition to/in conjunction with the Brundall Gardens Marina Terms & Conditions, shall not affect MP’s right to exercise those terms, and where either these terms of business or Brundall Gardens Marina’s Terms & Conditions contradict MP, reserve the right to exercise whichever terms gives the best outcome to MP in its absolute discretion.
14. LAW AND JURISDICTION
Any contract or series of contracts made subject to these Terms shall be subject to and governed by English law and any dispute arising under or in connection with them shall be submitted to the exclusive jurisdiction of the Courts of England and Wales.