TERMS OF BUSINESS
Edition 15a – England
THESE TERMS OF BUSINESS APPLY TO ALL CONTRACTS FOR WORK AND FACILITIES OR GOODS UNDERTAKEN BY US ON OR AFTER 31 OCTOBER 2012
1.1 We shall not be liable for any loss or damage caused by events or circumstances beyond our
reasonable control (such as severe weather conditions, the actions of third parties not employed
by us or any defect in a customer’s or third party’s property); this extends to loss or damage to
vessels, gear, equipment 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 adequately 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 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, Employer’s Liability cover in respect of any
employee. Customers shall be obliged to produce evidence of such insurance to us within 7 days
of a request to do so.
1.5 Nothing in these Terms of Business shall limit or exclude our liability for death or personal injury
caused by our negligence or the negligence of our employees, agents or sub-contractors; for
fraud or fraudulent misrepresentation; or otherwise to the extent that it would be illegal for us to
exclude or attempt to exclude liability.
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 judgment 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, 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.
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 VESSEL MOVEMENTS
4.1 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.
5.1 Unless otherwise agreed between us payment for 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 at our bank.
5.2 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% above 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
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
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 reasonably acceptable to us,
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.
5.4 Our customers’ attention is drawn also to the note at Clause 10.2 of these Terms of Business
regarding other rights which exist at law.
6 RETENTION OF TITLE / RISK
6.1 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.
6.2 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.
7.1 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.adviceguide.org.uk.
7.2 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.
7.3 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 customer to whom the work or materials
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 trading address or registered
office set out on our letterhead. The geographical area within which this guarantee will be honoured
is restricted to the United Kingdom.
7.4 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.
7.5 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 a commercial operation (a “Business Customer”) then:
7.5.1 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;
7.5.2 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; and
7.5.3 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.
8 QUALITY STANDARDS
8.1 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.
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 our
premises without our prior written consent (which consent shall not to be unreasonably withheld or
delayed) except for minor running repairs or minor maintenance of a routine nature by the customer
or his regular crew. It shall be an absolute condition that all work is carried out in full compliance with
our health and safety, environmental and access policies and that it does not cause any nuisance or
annoyance to us, any other customer or person residing in the vicinity, and does not interfere with our
schedule of work or the good management of our business and our said consent to work or services
being carried out may be revoked with immediate effect in the event of any breach of such
conditions. We shall not be responsible to customers or third parties for the consequences of any
person’s failure to respect any part of this clause 9.1 but we shall be entitled to demand the
immediate cessation of any work which in our view breaches the requirements of this clause 9.1.
9.2 While we or our subcontractors are working on a customer’s vessel or equipment the customer shall
not have access to it except by prior arrangement. We 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 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:
10.1.1 goods for repair 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;
10.1.2 our obligation as custodian of goods accepted for storage ends when we give notice to the
10.1.3 the place for delivery and collection of goods shall normally be at our premises.
Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause
10.2 Maritime Law entitles us 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 We may subcontract all or part of the work entrusted to us by the customer, 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 us under these Terms of Business. Where we exercise this
right we shall remain responsible to the customer for the performance of our subcontractor.
12.1 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 our principal
trading address or registered office.
13 LAW AND JURISDICTION
13.1 Any contract or series of contracts made subject to these terms and any non-contractual obligations
arising out of, or in connection, therewith shall be governed by and construed in accordance with
13.2 Each of the parties irrevocably agrees that any and every dispute (and any non-contractual obligations,
as aforesaid) arising out of or in connection with a contract or series of contracts subject to these
13.2.1 if one party acts as consumer (meaning a natural person acting for purposes outside of a
trade, business or profession), be subject to the non-exclusive jurisdiction of the English
13.2.2 where no party acts as consumer, be subject to the exclusive jurisdiction of the English courts.
14. DISPUTE RESOLUTION SCHEME
14.1 The BMF and the RYA recommend that disputes arising out of or in connection with a contract or
series of contracts subject to these terms, when they cannot be resolved by negotiation, be submitted
with the written agreement of the parties, to mediation under the BMF’s Dispute Resolution Scheme.
Details of the Scheme are available at www.britishmarine.co.uk/drs.
Published by the British Marine Federation and in consultation with the RYA,
who recommend that where disputes cannot be negotiated they be submitted to mediation under the BMF’s Dispute Resolution Scheme.
STANDARD TERMS AND CONDITIONS OF SALE FOR MARINE EQUIPMENT
The following definitions are used in these Terms and Conditions of Sale and Supply.
“Company” means “F&C Marine Limted”.
“Purchaser” means any business or individual placing an order with the Company.
“Product” means any material, equipment or services offered or supplied by the Company.
These terms and conditions apply to every quotation, bid or tender (“Offer”) provided by, and all orders accepted by the Company, for any Product offered and any such Offer must be signed by an authorised signatory and is subject to confirmation from the Company at the time of acceptance of any order. Unless extended or amended by the Company in writing any such Offer is valid for 60 days from the date thereof. The Company rejects any other terms and conditions, and the placing of any order by a Purchaser shall indicate acceptance of these terms.
Unless otherwise stated all prices are offered in the currency of Pounds Sterling, and exclude Value Added Tax (VAT), or any other sales tax or duty whether or not included on any Offer or invoice. The Company operates a minimum order value of £50.00, and reserves the right that any orders received which in total are less than this value, may be either rejected or increased to £50.00 (excluding VAT or any other charges).
- Credit Checking
The Company shall be entitled to assess the acceptability of the Purchaser by reference to any agency such as credit reference and fraud prevention agencies. The Company will use any such information provided by these agencies to help make credit and credit related decisions about applicants. If the Purchaser gives false or inaccurate information then details may be passed to credit reference and fraud prevention agencies and the Purchaser will be liable to the Company for any act of misrepresentation. Any data acquired will be held securely, in confidence, and used for the purpose of carrying out the Company’s business.
Under the Data Protection Act (1998) a Purchaser has the right to know what data is held by the Company and this information will be provided upon written application and payment of a £50 administration fee.
The Company will undertake all reasonable efforts to deliver the product in accordance with the estimated delivery times stated in the Offer and as requested by the Purchaser’s written order, but the Company will not be liable for any delay in delivery other than as expressly stated herein. The Company reserves the right to select the most appropriate method of delivery unless specific delivery instructions are provided by the Purchaser. Goods will not be insured unless specifically requested and paid for by the Purchaser. Delivery will be charged to the Purchaser at cost, including costs of insurance plus ten percent unless stated otherwise by the Company in writing.
Any claim, including a claim arising from damage, delay or partial loss of the Product in transit must be made in writing to the Company so that it is received within five days of the occurrence. All claims received will be assessed against the delivery terms to establish validity.
The Purchaser may install the Product themselves and the Company shall, if requested, provide an installation manual that may include suitable drawings showing dimensions, cable plans and connections in order to facilitate the Purchaser to plan and install the product. The Purchaser shall, at his own cost supply all foundations, and mount all equipment and install interconnecting cables, including any provided by the Company, and make connections in accordance with the information provided by the Company.
In the event that the Company installation is included in the Offer and Purchaser’s order, the Company shall install the
Product at an agreed time, but in any event within 4 (four) weeks of Product availability, and at a UK location unless agreed otherwise. Unless specifically excluded in the Offer and Purchaser’s order, the Purchaser shall be responsible for: ensuring that all required cabling, interfaces and mounting locations are available, provision of all housings and furniture, ventilation arrangements, provision of any required power supplies, any shipwright work, removal or replacement of deckhead and bulkhead covers, provision and use of a crane and operator, providing the Company access as required to undertake the installation and anything else reasonably required by the Company. In the event that the Company engineer is unable to undertake the installation as a result of the Purchaser’s failure to fulfil these requirements, the Company shall be entitled to charge any additional costs incurred in revisiting the vessel.
If the Company’s commissioning service is detailed in the Offer and Purchaser’s order, when installation has been completed the Purchaser shall provide the Company with sufficient notice for the Company to provide a qualified Engineer to inspect the installation at a UK location unless otherwise agreed, and if found suitable, commission the Product. In the event the Company is installing the Product, the commissioning will be automatically undertaken by the Company on completion of the installation.
If the Purchaser requires the Company’s Engineer to commission the Product and the commissioning service has not been included in the Offer and the Purchaser’s order, the Purchaser may request in writing for the Company to provide this service. The Purchaser and Company shall agree a time and location for the commissioning to take place and the Purchaser shall pay the Company the hourly or daily charge for this service as detailed in the Offer, including all travelling costs and living expenses. Work conducted at weekends, public holidays and outside normal working hours will incur an additional charge.
Unless otherwise detailed in the Offer and Purchaser’s order, the Purchaser shall be responsible for: ensuring that all required equipment is properly installed and providing the Company access as required to undertake the commissioning and anything else reasonably required by the Company. In the event that the Company engineer is unable to undertake the commission as a result of the Purchaser’s failure to fulfil these requirements or should the Product fail its commissioning as a result of the incorrect installation of the Product, provided such installation was not undertaken by the Company, then the Company shall be entitled to charge any additional costs incurred in revisiting the vessel.
Purchasers are requested to inform the Company of any hazards of any type which our staff may be exposed to when visiting any location at the request of the Purchaser. The Purchaser indemnifies the Company against direct damage to the Company’s property or that of others and injury to or the death of its employees or of others only if such direct damage, injury or death is caused either by the negligent acts or omissions of the Purchaser’s employees, sub-contractors or agents while the Company is working on the Purchaser’s or others’ premises pursuant to the Purchaser’s order.
All returns to the Company should be packed to despatch methods used for the safe return of equipment and any hazardous materials should be packed in accordance with the regulations of despatch AIR IATA, SEA IMDG, ROAD ADR.
Invoices for Products will be submitted at the time of dispatch and shall be paid by the Purchaser in full, within 30 days of the date of invoice. The Company reserves the right to charge interest on any overdue payment at a rate of 2% per month, chargeable on a daily basis. The Purchaser is not entitled to withhold payment due to minor concerns including but not limited to the absence of any part of the Product of such minimal importance as it does not affect the successful commissioning of the Product. For the avoidance of doubt this shall not waive the requirement for the Company to fulfil its obligations under the contract including the provision of the complete Product.
- Title and Risk
The Product shall remain the property of the Company until paid for in full, excepting that full risk in the product shall pass to the Purchaser on delivery, including risk of loss, damage or destruction by any means whatsoever. If, the Company’s invoice has not been paid in accordance with its terms of payment, the Company shall, following written notice be entitled to enter the premises of the Purchaser and recover the product.
If the Purchaser is in breach of any of these conditions of sale, then the Company shall be entitled to take any protective measures that it determines appropriate including, but not limited to suspension or termination of the Purchaser’s order. For the avoidance of doubt breach shall include failure by the Purchaser to make payment to the Company in the times or by the dates as specified in the Offer and Purchaser’s order.
Once an order has been formally accepted by the Company any cancellation by a Purchaser will only be considered by the Company if it has been advised in writing. Should the Company accept such cancellation, the Purchaser shall pay a cancellation/restocking fee of fifteen percent of the total order value and the price for work already undertaken as invoiced by the Company. The Purchaser shall return any delivered Products in the same condition as they were dispatched within 14 days of notice of cancellation, in the event the Purchaser fails to do so the Purchaser shall pay any invoice issued by the Company for those Products.
The Company warrants that the Product will be free from any defects in materials and workmanship for a period of either
12 months from Delivery for Products not requiring installation and commissioning; or
12 months from date of commissioning or 15 months from Delivery, whichever is the shorter, for Products requiring installation and commissioning.
The Purchaser must ensure that any installation and commissioning is undertaken by the Company’s engineer(s) or in accordance with the Company’s instructions by the Purchaser or a third party with the prior written agreement of the Company. The Company will have no further liability for the Product whatsoever, howsoever arising if the Purchaser fails to comply with this obligation.
In the event of an alleged Product defect, the Purchaser shall inform the company within 7 (seven) days of the defect arising and either return the Product to the Company or request the Company to visit the vessel in order to remedy the defect. The Company’s attendance at a vessel will be subject to the availability of the Company’s engineer(s).
Returned Products will be tested and either repaired, replaced or a credit provided at the Company’s discretion. The Product will then be returned to the Purchaser, delivery FCA UK place or FOB UK port/FCA UK airport (Incoterms 2000) for overseas Purchasers.
Defective Products at vessels visited will be tested and either repaired, replaced or a credit provided at the Company’s discretion. The Company will charge and the Purchaser shall pay for all reasonable and proper travel time, attendance time, travel and subsistence expenses and costs for shipment of spare parts outside of the UK unless otherwise agreed with the Company in writing. In the event that the Product is tested No Fault Found, the Company reserves the right to charge the Purchaser notwithstanding any prior written agreement. Upon repair or replacement the warranty period remaining when the defect occurred will continue.
The Company shall not be liable for any defects caused by accident, abuse, misuse or neglect. The Company will have no further liability for the Product whatsoever, howsoever arising if any modification or repair is undertaken by the Purchaser or a third party without the Company’s prior written permission.
If at the time the defect arises, the manufacturers warranty is more advantageous than the Company’s warranty then any benefit of such warranty may be passed on to the Purchaser at the Company’s discretion.
This warranty does not extend to cover software upgrades or consumable items including but not limited to electronic tubes, bulbs, batteries and computer discs. The remedies contained herein are in full and final settlement of the Company’s liability in the event of a defect and all other rights and remedies by law are hereby excluded to the maximum extent allowable.
The Company shall be liable to the Purchaser in the event of any successful claim for infringement of United Kingdom Patent, Unregistered Design, Registered Design, Trade Mark or Copyright published or acquired at the date of the contract by use of the equipment for all costs and damages which the Purchaser may incur in any action for such infringement or for which the Purchaser may become liable in any such action PROVIDED ALWAYS that the Company shall not be liable to the Purchaser in the event that and in so far as such infringement arises as a result of the Company having followed a design or instruction furnished or given by the Purchaser or the equipment having been used in a manner or for a purpose or in a country not specified to or disclosed to the Company prior to the date of the contract OR as a result of the equipment having been used in association or combination with any other goods OR the Company has at its’ expense procured for the Purchaser the right to continue to use the equipment or have modified the equipment so that it does not infringe or replace the equipment by non-infringing equipment OR the Purchaser has failed to give to the Company the earliest possible notice in writing of any claim made or to be made or action threatened or brought against the Purchaser AND/OR the Purchaser has failed to permit the Company at its’ expense to conduct any litigation that may ensue and all negotiations for a settlement of the claim OR the Purchaser has made any admission which is or may be prejudicial to the Company in respect of any alleged infringement without the Company’s prior written consent.
The Company shall, however, not be liable to the Purchaser for any loss of use of the equipment or for loss of profits or of contracts arising directly or indirectly out of any such infringement of Patent, Unregistered Design, Registered Design, Trade Mark or Copyright. The Purchaser on its’ part warrants that any design or instructions furnished or given by it shall not cause the Company to infringe any Patent, Unregistered Design, Registered Design, Trade Mark or Copyright in the performance of the Company’s obligations in accordance with the contract.
The Company shall only be liable for claims arising in accordance with obligations in these Conditions of Sale and Supply. No claim shall subsist howsoever arising that exceeds 50% of the value of the Product hereunder. Neither Company nor Purchaser shall be liable to the other for any indirect or consequential loss or damage which shall include but not be limited to any loss of profit, loss of use, loss or production or loss of contracts which the other may be at risk for or incur or whether the same be due partly or otherwise to negligence. For the avoidance of doubt no limitation of liability shall apply to any claim for death or personal injury.
- Disposal of Electrical Equipment & Hazardous Substances
Compliance for the disposal of waste electronic equipment and hazardous substances in the European Union under EU Directive (2002/96/EC) WEEE (Waste Electrical & Electronic Equipment) is the responsibility of the Purchaser. If the Purchaser requests and the Company accepts to dispose of any hazardous substances then the Company shall be entitled to levy a charge for such disposal.
- Force Majeure
Both the Company and the Purchaser shall not be liable, nor deemed to be in default for any delay or failure of performance resulting directly, or indirectly from any cause beyond their reasonable control, including, but not limited to, an Act of God, war, riot, strike, lockout or other labour or industrial dispute, fire, explosion, flood, sinking, legislation or Governmental act or decree.
If any dispute or difference shall arise between Company and Purchaser in connection with or arising out of these Conditions then the matter shall be subjected to ‘bona fide’ negotiations for a period of 60 days from the written notification from Company or Purchaser to that effect. If the matter has not been resolved and such resolution agreed in writing between the Company and Purchaser then the matter shall be resolved by mutually agreed Arbitration or pursuant to Law.
- Set Off
The Purchaser shall not be entitled to exercise any right of set-off or counter claim. Whenever under the contract any sum of money shall be recoverable from or payable by the Purchaser the same may be deducted from any sum then due, or which at any time thereafter may become due, to the Purchaser under the contract, or under any other contract with the Company.
- UK Bribery Act
The Company has established adequate procedures to comply with the UK Bribery Act 2010 and therefore will not enter into any negotiations for a contract that involves any suggestion that such activities may infringe this legislation either in the UK or abroad. Any requests for bribery will be refused and reported to UK Law Enforcement Agencies.
- Law and Jurisdiction
These Terms and Conditions of Sale and Supply shall be governed by and construed in accordance with the Laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts. Any contract shall in all respects be considered as an English contract made in England and Wales, subject to the Laws of England and