TERMS AND CONDITIONS OF BUSINESS

 

1.            Basis of sale

A.            We, RK Marine Limited (Company No. 02226134) consider the terms and conditions set out in this document (“Terms”), your order for the goods and services (the “Order”) and our price list to set out the whole agreement between you and us for the supply of goods to you (the “Goods”) and the provision of services to you (the “Services”) and which are set out in your Order.

B.            Please check that the details in these Terms and on the Order are complete and accurate before you commit yourself to the contract. We only accept responsibility for statements and representations made in writing by our authorised employees and agents.

C.            Please ensure that you read and understand these Terms because you will be bound by the Terms once a contract comes into existence between us, in accordance with clause 1(E).

D.            The Order is an offer by you to enter into a binding contract with us, which we are free to accept or decline at our absolute discretion.

E.            These Terms shall become binding on you and us when:

1.      we issue you with written acceptance of an Order; or

2.      we notify you that we are able to provide the Goods or Services,

whichever is the earlier, at which point a contract shall come into existence between us.

F.            You must provide us, in sufficient time, with any information and instructions relating to the Goods or Services that is or are necessary to enable us to provide the Goods or Services in accordance with these Terms. If you do not, or you provide us with incomplete, incorrect or inaccurate information or instructions, we may cancel the Order by giving you written notice, or we may make an additional charge of a reasonable sum to cover any extra work that is required.

G.            These Terms do not affect your rights under law.

 

 

2.            LIABILITY

A.            Subject to clause 2(B), if either of us fails to comply with these Terms, neither of us shall be responsible for any losses that the other suffers as a result, except for those losses which we or you could reasonably foresee would result from the failure to comply with these Terms.

B.            Neither of us shall be responsible for losses that result from our failure to comply with these Terms including, but not limited to, losses that fall into the following categories:

1.      loss of use;

2.      loss of sale, income or revenue;

3.      loss of business;

4.      loss of anticipated savings; or

5.      loss of data.

However, this clause 2(B) shall not prevent claims for foreseeable loss of, or damage to, your physical property caused by an act or omission of us or by our negligence.

C.            This clause does not include or limit in any way our liability for:

1.      death or personal injury caused by our negligence; or

2.      fraud or fraudulent misrepresentation; or

3.      any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

4.      losses for which it is prohibited by section 7 of the Consumer Protection Act 1987 to limit liability; or

5.      any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.

 

 

3.             PRICES AND ESTIMATES

A.            In the absence of any agreement to the contrary our price for the Services shall be based on time and materials expended. Prices are liable to change at any time, but subject to clause 3(B) price changes will not affect Orders that we have confirmed in writing.

B.            Quotations, estimates or indication of prices given by us - in writing or orally – are estimates only and we rely on you providing accurate information or instructions. In the event that:

1.      you do not, or you provide us with incomplete, incorrect or inaccurate information or instructions; or

2.      upon examination of the vessel additional repairs or work outside the Order are deemed necessary

then we may make an additional charge of a reasonable sum to cover any extra work that is required.

C.            We will inform you of any proposed increase in estimated prices required under clause 3(D) and the reasons therefore and will only proceed with the work upon your approval.  In those circumstances your liability for any Services work already completed or Goods already supplied or to be supplied shall be unaffected.

 

 

4.            DELIVERY

A.            We will take reasonable steps to meet the delivery date set out on the Order or as otherwise agreed between us. However, occasionally delivery may be affected by factors beyond our control and so cannot be guaranteed. We will let you know if we become aware of an unexpected delay and will arrange a new delivery date with you.

B.            If you fail to take delivery of an Order within 14 calendar days of the date on which we notify you that the Goods are ready, then, except where this failure is caused by our failure to comply with these Terms or by an event beyond your control:

1.      we will store the Goods until delivery takes place and may charge you a reasonable sum to cover expenses and insurance;

2.      we shall have no liability to you for late delivery.

C.         If there is a problem with the delivered Goods, which includes wrong Goods, faulty Goods, damaged Goods or short delivery of Goods, then we must be notified of this by email within 5 calendar days from receipt of the Goods.

 

 

5.            PAYMENT

A.            We may invoice you for the Goods or Services at any time after we have provided the Goods or Services to you. Unless otherwise agreed the price of all work, Goods and Services shall be due immediately on invoice date.

B.            If you do not make any payment due to us by the due date for payment, we may charge interest to you on the overdue amount at the rate of 5% a year above the base lending rate of Natwest Bank from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with the overdue amount.

C.            We have the right to keep hold of a vessel, its keys, its gear and equipment and any other Goods on which we have worked or in respect of which we have provided Services pending payment in full of all sums due to us in respect of the provision of any such work or Services.  During any such period of retention we reserve the right to continue to charge for storage, hard standing or berthing at our usual commercial rates.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.            TITLE AND RISK

A.            Title to the Goods will only pass to you when we receive payment in full of all sums due for all Goods and Services, including delivery charges and any other goods or services that we have supplied to you in respect of which payment has become due.

B.            Risk in the Goods shall pass to you on delivery.

C.            Until title to the Goods has passed to you, you shall:

1.      hold the Goods on a fiduciary basis as our bailee;

2.      store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;

3.      not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

4.      maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

1.      give us such information relating to the Goods as we may require from time to time,

2.      but you may resell or use the Goods in the ordinary course of your business.

D.        Where you are a business, if before title to the Goods passes to you, you becomes subject to an event of insolvency or we reasonably believes that any such event is about to happen and notifies you accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Goods and, if you fails to do so promptly, enter any of your premises or of any third party where the Goods are stored in order to recover them.

 

7.            GUARANTEE

A.            Unless we are prevented from doing so by Force Majeure, we will provide Services which:

1.      conform in all material respects with their description;

2.      are carried out with reasonable care and skill;

3.      are fit for any purpose we say the Services are fit for, or for any purpose for which you use the Services and about which you have informed us, or we could reasonably expect you to use the Services;

4.      are free from material defects in workmanship for 3 months from completion; and

5.      comply with all applicable statutory and regulatory requirements for supplying the Services in the United Kingdom.

B.            On delivery and for a period of 12 months from the date of delivery the Goods shall:

1.      conform in all material respects with the manufacturer's specification;

2.      be of satisfactory quality;

3.      be fit for any purpose we say the Goods are fit for;

4.      be free from material defects in design, material and workmanship; and

5.      comply with all applicable statutory and regulatory requirements.

C.            Notification of any defect within this period must be made in writing. We will investigate the cause and if it is our responsibility under these Terms we will promptly remedy them or, at our option, employ other specialist contractors to do so.  Any remedial work, which is carried out by you or a party other than us may invalidate this clause 7. In respect of such defects, if we are not advised beforehand and given the opportunity to inspect and agree such work and its cost then we have no responsibility to pay the costs.

D.            Volvo Penta Goods we supply and fit are guaranteed that they are free of any manufacture or material defect for a period of 12 months for parts and up to 24 months for engines, drives and gearboxes if they are maintained as per Volvo Penta’s criteria. For any material or manufacture defect reported to us in the guarantee period our liability is strictly limited to repair or replacement only. If we replace Goods under this liability then the replaced Goods become our property. All costs that exceed our liability shall not be covered.

E.            Guarantee is not valid:

1.     if the defect is due to abuse, misuse or inexpert use or any other cause than material or manufacture defect.

2.     if the cause of defect can not be conclusively proved.

3.     in the case of fair wear and tear.

4.     if the fitting instructions or any other instructions have not been accurately followed or observed.

5.     if the invoice for the work carried out and/or Goods supplied has not been paid in full.

F.            Guarantee shall cease:

1.      if during the guarantee period the Goods supplied and/or fitted have been subject to unauthorised modification and/or repair.

2.      if any of the maintenance obligations, obligations under the contract of sale or obligations of operation are not fulfilled.

 

 

 

8.            FORCE MAJEURE

A.            We will not be liable for any loss or consequential liability or damage sustained by you by reason of act of nature, war, terrorist activity, civil unrest, fire, strike, lock-out, government control or regulation, accident, breakdown, or any other circumstances beyond our reasonable control.

 

 

 

9.            ACCESS TO PREMISES

A.            Subject to clause 9(B) no work shall be done on the vessel, gear, equipment or other Goods while on our premises without our prior written consent other than minor running repairs or minor maintenance of a routine nature by you, your regular crew or members of your family not causing nuisance, or annoyance to any other customer or person residing in the vicinity, nor interfering with our schedule of work, nor involving access to prohibited areas.

B.            Prior written consent will not be unreasonably withheld where:

1.      the work is of a type for which we would normally employ a specialist sub-contractor; or

2.      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.

C.            Notwithstanding the foregoing, during periods of work by us on the vessel, neither you nor your invitees shall have access to the vessel without our prior consent, which consent shall not be unreasonably withheld.  In the event of such access being permitted, it will be at your own risk.

 

 

 

10.            RIGHT OF SALE

A.            Where we accept vessels, gear, equipment or other Goods for repair, refit, maintenance or storage we do so subject to the provisions of the Torts (Interference with Goods) Act 1977.  The Act confers a Right of Sale on us in circumstances where you fail 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 you in accordance with the Act.  For the purpose of the Act it is recorded that:

1.             Goods for repair or other treatment are accepted by us on the basis that you are 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;

2.             our obligation as custodian of Goods accepted for storage ends on our notice to you of termination of that obligation;

3.             the place for delivery and collection of Goods shall be at our premises unless agreed otherwise.

B.            In certain other circumstances we may be entitled to have vessels or Goods sold through the Court for non-payment of invoices.

 

 

 

11.            SUB-CONTRACTING

A.            You may not transfer any of your rights or obligations under these Terms to another person without our prior written consent, which we will not withhold unreasonably. We can transfer all or any of our rights and obligations under these Terms to another organisation, but this will not affect your rights under these Terms.

 

 

12.            RIGHTS OF THIRD PARTIES

A.            A person who is not party to these Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.

 

13.            LEGAL CONSTRUCTION

 

A.            These Terms shall be governed by English Law and you and we both agree to the non-exclusive jurisdiction of the English courts.

 

 

 

14.            NOTICES

 

A.            All notices sent by you to us must be sent to RK Marine at email@rkmarine.co.uk. We may give notice to you at either the e-mail or postal address you provide to us in the Order. Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter.

 Head Office: R.K.Marine Hamble River Boatyard Southampton Hampshire SO31 7EB T 01489 583572 T 01489 583585