Terms and Conditions
BURTON WATERS MARINA LIMITED
TERMS AND CONDITIONS FOR THE SERVICE OF VESSELS
Burton Waters Marina Limited (Company Registration Number 04131218) (“the Company” or “we” etc) agrees to supply the marine vessel repair and servicing work (the Services) to the Customer in accordance with these Terms.
Your attention is particularly drawn to Term 7 below, under which our liability under this contract is limited.
- In these Terms, expressions are defined in Schedule 1.
- In these Terms, the following rules apply:
(i) A reference to a party includes its personal representatives, successors or permitted assigns.
(ii) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(iii) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(iv) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(v) The singular includes the plural and vice versa.
(vi) The masculine includes all genders.
2. Basis of Contract
- We have agreed, in consideration for the Fees, to perform the Works on the Vessel in accordance with these Terms.
- The Contract shall come into force on the following day:
(i) Where we have provided a Quote, on your acceptance of that Quote;
(ii) Where we are carrying out Works in accordance with our Tariff, when you instruct and or authorise us to carry out the Works
- We will not accept any variation to these Terms unless the variation is expressly agreed by us in writing and signed by a duly authorised signatory on our behalf.
- The Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. The Fees
- The Fees payable by you shall be those set out in the Quote or, where there is no Quote, in accordance with our Tariff.
- Our Quote is an estimate only and merely indicative of the Fees. Where you have authorised us to carry out the Works under the Contract, you have agreed to pay the Fees, even if they exceed the Quote, save that, where we determine that the Fees will exceed the Quote by twenty per cent or more, we will seek to agree this with you before commencing the Works if practicable, or further works (without prejudice to our entitlement to be paid for Works carried out up to that point).
- Where we require you to pay a deposit, this shall be non-refundable, even if you subsequently cancel the Works. Where we have ordered parts on your behalf, you are obliged to pay for them in all circumstances.
- The Fees are payable by you in cleared funds within 7 days of the date of our invoice. The Fees are non-refundable. Time is of the essence for making payment.
- All sums due under the Contract:
(i) include VAT. You warrant that you are not VAT registered;;
(ii) shall be made by the due date, failing which we may charge you interest on late payments on a daily basis at a rate equivalent to 5% above the base lending rate of Barclays Bank plc then in force; and
(iii) shall be paid without deduction or set-off in pounds sterling by cheque, card or direct transfer to the following account: 205039 - 90171190
(f) We are under no obligation to release the Vessel prior to receiving payment in full in cleared funds, nor are we responsible to you for any loss or damage as a consequence of such action.
(g) We reserve the right to charge a fee of 2% on credit card payments over £500.
4. Delivery and Collection
- You are responsible for delivering the Vessel to our Workshop prior to the commencement of the Works and for collecting the Vessel after we notify you that the Works are completed, unless we agree otherwise.
- Any date or dates quoted for completion of the Works are approximate only and we shall not be liable for any delay in completing the Works howsoever caused.
- If, once we have notified you that the Works are complete (or otherwise that the Vessel must be removed from the Workshop), you fail to collect the Vessel within a period of thirty days from such notification, then, without prejudice to any other right or remedy available to us, we may elect (at our absolute discretion) to:
- store the Vessel until actual delivery and charge you for the reasonable costs of storage (including insurance); and or
- sell the Vessel at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to you for the excess over the price already paid by you under the Contract or charge you for any shortfall below the price payable by you under the Contract.
5. Your Obligations
(a) You warrant and undertake:
(i) That the Vessel is safe, secure and seaworthy and does not pose a risk to our operatives whilst the Works are carried out;
(ii) To cooperate with us at all times to enable us to carry out the Works in accordance with the Contract;
(iii) To comply with any requirements, instructions or guidance connected with any manufacturer’s warranty associated with the Vessel or any part thereof, for which we are not responsible;
(iv) That you hereby authorise our agents or staff to move, alter, tamper with or pilot the Vessel insofar as is deemed necessary or desirable to carry out the Works or to test the Vessel; and
(v) To remove all significant non-boat related valuables (such as laptops, phones, tablets, cash, cards etc)from the Vessel prior to commencement of the Works
(b) You agree to fully indemnify and hold us harmless against any and all liabilities, costs, expenses, damages and losses (including any Consequential Losses) suffered or incurred by us arising from your negligence in connection with the Contract or breach of the Contract.
- It is your responsibility to inspect the Vessel after we have notified you that the Works have been completed and prior to the Vessel being released from the Workshop. We shall provide you with reasonable access to enable such inspection.
(b) Once you have removed the Vessel from the Workshop, or we have delivered it to you (if we agree to do so), you are deemed to have accepted the quality, nature and extent of the Works save that, in the case of a latent defect, you must notify us within 7 days of the latent defect having become apparent provided that such latent defect is identified within 12 months from the date of delivery / collection.
(c) Upon receiving notification of a latent defect in accordance with Term 6(b) above, you shall afford us a reasonable opportunity to inspect the Vessel before authorising any third party to carry out work on the Vessel. You remain obliged to deliver the Vessel for inspection at your own cost, unless we agree otherwise. We shall only be liable to repair or rectify latent defects at our cost if they have arisen as a consequence of our negligence or breach of the Contract. In all other cases, you remain liable to pay for remedial work.
(d) Parts removed by us as part of the Works belong to us.
(e) We do not warrant or guarantee to use exactly the same part or product as set out in the Quote, or other document defining the scope of the Works, but parts and products used shall be genuine and appropriate, unless we indicate otherwise in writing.
7. Limitation of Liability
- Nothing in the Terms shall limit or exclude our liability for:
- Death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
- Fraud or fraudulent misrepresentation;
- Any other matter in respect of which it would be unlawful for us to exclude or restrict liability.
- Subject to Term 7(a) above:
- We shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any Consequential Loss; and
- Our total aggregate liability to you in respect of any liability arising under or in connection with the Contract, save as otherwise limited or excluded hereunder, shall in no circumstances exceed the Fees.
(c) We shall carry out the Works with reasonable care and skill but do not warrant that completion of the Works will result in any particular outcome or result. All other warranties, conditions or terms relating to the quality or condition of the Works, or the fitness for purpose, quality or condition of parts used, whether express or implied by statute or common law or otherwise, are excluded to the fullest extent permitted by law.
(d) Our employees, agents and representatives are not authorised to make any representations or give any warranty, guarantee or undertaking on our behalf unless it is confirmed in writing by us. You warrant and acknowledge that you do not rely on and have no cause of action in respect of any such representations, warranty, guarantee or undertaking, whether in writing or otherwise.
(e) The Vessel, and all property, fittings and fixtures thereon, shall be stored in the Workshop at your own risk. You are responsible for securing the Vessel. We do not accept liability for any loss or damage to property or equipment left on or in the Vessel whilst it is with us.
(g) This Term 7 shall survive termination of the Contract.
(a) You have no right to cancel or terminate the Contract prior to completion of the Works, unless we agree otherwise.
(b) Without prejudice to the other remedies or rights we may have, we may terminate the Contract, at any time, on written notice to you where:
(i) you are in persistent or material breach of the Terms,
(ii) you become insolvent, or are the subject of a winding up order, or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of your assets or business, or if you make any composition or arrangement with your creditors or you take or suffer any similar or analogous action in consequence of debt, or
(iii) acting in good faith, we consider that it is in our best interests to terminate the Contract
(c) Upon the termination of the Contract (howsoever terminated):
(i) You shall promptly pay all the Fees incurred up to the point of termination on demand, including the costs of any parts or materials ordered;
(ii) You shall promptly collect the Vessel, subject to complying with Term 8(c)(i) above
9. Force Majeure
- We shall not be liable nor shall it be deemed to be in breach of the Contract for any failure or delay in performing our obligations under the Contract to the extent that such failure or delay is caused, in whole or in material part, by a Force Majeure Event.
- A “Force Majeure Event” means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable.
- We shall notify you as soon as reasonably practicable after becoming aware that we are unable to perform our obligations under the Contract due to a Force Majeure Event.
- If our inability to perform our obligations under the Contract continues for three months after we provide a notice pursuant to Term 9(c) above, then either party may by written notice to the other party terminate the Contract without liability, save for your liability to pay the Fees for Works carried out prior to such notification.
You may not assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.
Any notice to be given by either party to the other under the Contract or these Terms shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its registered office or such other address as that party may from time to time notify in writing.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14. Entire Agreement
The Contract contains the whole agreement between you and us and supersedes any prior written or oral agreement between you and us in relation to the Works. No oral explanation or oral information given by either you or us shall alter or affect the interpretation of the Contract.
15. Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
16. Data Protection
You consent to us processing your personal data for all purposes connected with the Works and for contacting you in the future for marketing or promotion purposes. In particular, your contact details and Vessel details will be stored by us for a period of six years so that we have a record of the work undertaken for insurance purposes. Your personal data will not be passed to third parties.
17. Governing Law and Jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Schedule 1 – Defined Terms
The charges rendered by us for carrying out the Works in accordance with the Terms
The boat or vessel owned by you and subject to the Works
The terms and conditions set out in this agreement
Our price tariff as we publish and update from time to time
The legally binding agreement between us and you incorporating the Terms
Loss or damage of a consequential or indirect nature including, but not limited to, loss of profit, loss of contract or loss of reputation
Our written quotation for carrying out the Works
The servicing or repair work as agreed to be carried out by us on the Vessel from time to time
Burton Waters Marina Limited (Co. Reg. No. 04131218)
Registered Address: Burton Lane End, Burton Waters, Lincoln LN1 2WN
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