|
FAL SCOTTISH PROPELLER SERVICE LTD – TERMS AND CONDITIONS
FAL SCOTTISH PROPELLER SERVICE LTD – TERMS AND CONDITIONS
Terms and Conditions for Repair and Refit Works.
1. INTERPRETATION
1.1 Definitions. In these Conditions the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between FAL Scottish Propeller Service Ltd and the Customer for the performance of the Works in accordance with these conditions.
Customer: the person for whom FAL Scottish Propeller Service Ltd performs the Works.
Customer Supply Items: any goods supplied by the Customer or purchased by FAL Scottish Propeller Service Ltd at the direction of the customer for the performance of the Works.
Force Majeure Event: has the meaning given in Condition 9.
Goods: the goods, material and any machinery and components supplied by FAL Scottish Propeller Service Ltd in the performance of the Works and for the avoidance of any doubt, excluding Customer Supply items.
FAL Scottish Propeller Service Ltd, a company registered in Scotland (Company No. SC497795) and having its registered office at 1 March Road West, Buckie, AB56 4BU.
FAL Scottish Propeller Service Ltd Materials: the materials, equipment, documents and other property of FAL Scottish Propeller Service Ltd used in the performance of the Works, excluding the Goods.
FAL Propeller Service Ltd Personnel: the employees, agents, contractors and consultants of FAL Scottish Propeller Service Ltd.
Order: the Customer’s instructions (whether oral or written) to proceed with the Works.
Price: the aggregate amount payable by the Customer for the Works, comprising the charges for the services supplied by FAL Scottish Propeller Service Ltd, the price of the Goods and ancillary costs.
Variation Proposal: written notification to the Customer in accordance with Condition 5 of any additional Works required to the Item and the required consequential amendments to the Contract.
Item Propellers, Stern Gear and Associated Items: The Customer’s in respect of which FAL Scottish Propeller Service shall carry out the Works.
Works: the repair and/or refit works to be carried out on the propeller/stern gear etc by FAL Scottish Propeller Service Ltd, including the supply and installation of any Goods, as may be amended from time to time in accordance with these Conditions.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or nothaving separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) 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.
(d) Any phrase introduced by the terms including, include, in particular or any similarexpression shall be construed as illustrative and shall not limit the sense of the words preceeding those terms.
(e) A reference to writing or written including faxes and emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to instruct FAL Scottish Propeller Service Ltd to proceed with the Works in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when FAL Scottish Propeller Service Ltd issues an acceptance (whether oral or written) of the Order or, in the absence of such acceptance, upon FAL Scottish Propeller Service Ltd commencing performance of the Works, at which point the Contract shall come into existence.
3. PERFORMANCE OF THE WORKS
3.1. FAL Scottish Propeller Service Ltd shall perform the Works in accordance with the Order or as otherwise may be subsequently agreed between FAL Scottish Propeller Service Ltd and the Customer in all material respects.
3.2. FAL Scottish Propeller Service Ltd shall use all reasonable endeavours to meet any performance dates specified in the Order or as otherwise may be subsequently agreed between FAL Scottish Propeller Service Ltd and the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Works.
3.3. FAL Scottish Propeller Service Ltd shall have the right to make any changes to the Works which (i) are necessary to comply with any applicable law or safety requirements, or (ii) which are necessary in FAL Scottish Propeller Service Ltd’ professional judgement but do not materially affect the nature or the quality of the Services.
4. VARIATIONS TO THE WORKS
4.1. The Customer acknowledges and agrees that any scope of works outlined and any price quoted by FAL Scottish Propeller Service to the Customer is based on FAL Scottish Propeller’s reasonable estimate of the goods and services required to be supplied by FAL Scottish Propeller Service Ltd to carry out the Works (the “Estimate”), and is based on the information provided by the Customer and, if one is carried out prior to commencement of performance of the Works, limited visual inspection of the propeller. If, following commencement of the Works it becomes apparent in FAL Scottish Propeller Service Ltd’ judgement that the additional Works over and above those contemplated in its Estimate are required to complete the repairs or refit to a satisfactory standard, Condition 5.2 shall apply.
4.2. FAL Scottish Propeller Service Ltd shall as soon as reasonably practicable, issue a Variation Proposal to the Customer setting out the necessary changes to the Contract, including any revisal to its estimate of price and date for completion of the Works, and the Customer shall promptly and in any event no later than 5 Business Days from the date of receipt of the Variation Proposal either:
(a) confirm acceptance by signing and returning the Variation Proposal, in which case the Contract shall be deemed to have been amended; or
(b) notify FAL Scottish Propeller Service Ltd that it does not accept the Variation Proposal.
4.3. If the Customer does not accept the Variation Proposal the parties shall negotiate in good faith to agree the points of dispute. If agreement cannot be reached, either Party may terminate the Contract immediately by notice in writing, and the terms of Condition 9.3 shall apply.
5. PRICE AND PAYMENT
5.1. The price shall include all sums payable in respect of VAT unless the Customer is zero rated for VAT or is otherwise exempt from payment of VAT.
5.2. The Customer acknowledges and agrees that any price quoted for the Works by FAL Scottish Propeller Service Ltd prior to the completion thereof is an estimate and is based on the Estimate (as may subsequently be amended), and on the prices quoted for Goods by the suppliers thereof, which may change.
5.3. Where a price has been quoted by FAL Scottish Propeller Service Ltd prior to completion of the Works, FAL Scottish Propeller Service Ltd shall use its reasonable endeavours to keep the Customer informed of any increase thereto.
5.4. In circumstances where FAL Scottish Propeller Service Ltd is required to perform the Works at a place other than the Yard, FAL Scottish Propeller Service Ltd shall be entitled (subject to the provision of reasonable evidence of such costs) to charge the Customer for any travel, accommodation and subsistence costs and expenses stated in the Order, the price of the Goods and/or Services is exclusive of the costs and charges of packaging, insurance and transport of the Goods and the costs of travel, subsistence and materials properly and reasonably incurred in the provision of the Services, which shall be invoiced to the Customer.
5.5. FAL Scottish Propeller Service Ltd may invoice the Customer for the Works on or at any time after completion of the Works, unless any other schedule of payments has been agreed.
5.6. The Customer shall pay each invoice in full and in cleared funds within the terms and due date stated on the invoice. Time for payment shall be the essence of the Contract.
5.7. Without limiting any other right or remedy of FAL Scottish Propeller Service Ltd, if the Customer fails to make any payment due to FAL Scottish Propeller Service Ltd under the Contract by the due date for payment (due date), then
(a) FAL Scottish Propeller Service Ltd shall be entitled to charge interest on the overdue amount at the rate of 8% per annum above The Royal Bank of Scotland plc’s base rate from time to time. Such payment of the overdue amount, whether before or after judgement. The Customer shall pay the interest together with the overdue amount; and
(b) may either exercise a lien over the goods until the payment of all sums due under the Contract is received or at FAL Scottish Propeller Service Ltd’ sole discretion sellthe goods and any other items belonging to the Customer which are in FAL Scottish Propeller Service Ltd’ possession and any items obtainable and apply the proceeds of sale in discharge of all sums owed to FAL Scottish Propeller Service Ltd including interest thereon.
5.8. The customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against FAL Scottish Propeller Service Ltd in order to justify withholding payment of any such amount in whole or in part. FAL Scottish Propeller Service Ltd may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by FAL Scottish Propeller Service Ltd to the Customer.
6. WARRANTY
6.1 Except as expressly provided in the Contract no warranty, condition, undertaking or term, express or implies, statutory or otherwise as to the condition, quality, specification or performance of the Goods or the services supplied by FAL Scottish Propeller Service Ltd is given or assumed by FAL Scottish Propeller Service Ltd, and all such warranties, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law.
6.2 FAL Scottish Propeller Service Ltd warrants to the Customer that it will carry out the Works with reasonable skill and care. FAL Scottish Propeller Service Ltd shall not be liable for a breach of the warranty in Condition 6.2 unless the Customer gives written notice to FAL Scottish Propeller Service Ltd of the nature of the alleged defect setting it out in reasonable details within a month from and including the date of delivery of the item back to the Customer following the completion of the Works.
6.3 If FAL Scottish Propeller Service Ltd is in breach of the warranty set out in Condition 6.2, subject to Condition 6.3 and Condition 6.8, FAL Scottish Propeller Service Ltd shall remedy the defect at the Yard at its own cost and expense, and a fresh warranty shall apply to such remedial works on the same terms of this Condition 6.
6.4 Subject to Conditions 6.7 and 6.8, any defect in any Goods shall be subject to the manufacturer’s warranty for the Goods in question.
6.5 If the Customer alleges any defect in any Goods it shall promptly notify FAL Scottish Propeller Service Ltd of the details of the alleged defect in writing, setting outreasonable detail. Provided that notification is received within the manufacturer’s warranty period for the Goods in question, FAL Scottish Propeller Service Ltd shall inspect the Goods as soon as reasonably practicable (such inspection to be at the Customer’s cost) and if against the manufacturer of the Goods, FAL Scottish Propeller Service Ltd shall use all reasonable endeavours to pursue such a claim on the Customer’s behalf.
6.6 FAL Scottish Propeller Service Ltd shall not be liable for a breach of warranty in Condition 6.2 nor shall it have any obligations under Conditions 6.6 or 6.7 if:
(a) the Customer makes any further use of the item or Goods after giving notice of any defect; or
(b) the defect arises due to the Customer’s failure to follow the instructions FAL Scottish Propeller Service Ltd or the manufacturer of the Goods as to use of the Goods or due to the Customer’s failure to take reasonable care of the item or goods; or
(c) The Customer or any third party on the Customer’s behalf alters or repairs the Goods in whole or in part (or attempts to do so) which was subject to the Works without the written consent of FAL Scottish Propeller Service Ltd; or
(d) any sums due to FAL Scottish Propeller Service Ltd under the Contract remain outstanding.
6.7 FAL Scottish Propeller Service Ltd gives no warranty and accepts no liability for the quality or fitness for purpose of any Customer Supply Items or for any damaged caused to the Goods by such items, and the Customer irrevocably agrees that it is the Customer’s sole responsibility to resolve any claim or complaint with regard to the Customer Supply Items directly with the manufacturer, and FAL Scottish Propeller Service Ltd shall have no liability or obligation in respect thereof.
7 THE PURCHASER
7.1 The Purchaser acknowledges that:
(i) the company is not the manufacturer of the materials from which the goods are produced: and
(ii) the Company is not able to test the materials with any kind of ultrasonic x-ray or other equipment for latent defects in quality of manufacture otherwise not apparent upon visual inspection.
7.2 The Company makes no warranty that any goods supplied will be fit for any particular purpose whether notified to the Company or not.
7.3 Notwithstanding the provisions of Clauses 7.2 and 7.3 above, the Company undertakes to use all reasonable endeavours to extend to the Purchaser the benefit of any guarantee condition or warrant relating to the goods or the materials from which the goods have been manufactured which may expressly or by implication have been given to the Company by the supplier or otherwise of the goods to the extent to which the same by be capable of assignment and provided that any expense reasonably incurred by the Company in the extension of such benefit to the Purchaser shall be reimbursed to the Company by the Purchaser upon demand.
7.4 Save as expressly provided herein the Company excludes all other warranties and conditions express or implied by law or otherwise with respect to the goods and the Company shall not be liable to the Purchaser for any loss or damage whatsoever (including without prejudice to the generality of the foregoing any liability in contract negligence or any other tort for any indirect consequential or economic loss of for loss of profit or except insofar as any exclusion or limitation of the Company’s liability hereunder is prohibited void or unenforceable by law.
8 LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude FAL Scottish Propeller ServiceLtd’ liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for FAL Scottish Propeller Service Ltd to exclude or restrict liability.
8.2 Subject to Condition 8.1:
(a) FAL Scottish Propeller Service Ltd shall under no circumstances whatever be liable to the customer, whether in contract, delict, tort (including negligence, breach of statutory or other duty), or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
(b) FAL Scottish Propeller Service Ltd’ total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, delict or tort (including negligence, breach or statutory or other duty) or otherwise, shall in no circumstances exceed the Price; and
(c) any claim in respect of the provision of the Services by FAL Scottish Propeller Service Ltd to the Customer must be brought by the Customer within 6 months from the date of completion of the Works. FAL Scottish Propeller Service Ltd shall not be liable to the Customer in respect of any claims brought by the Customer outside such period.
9. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Eventmeans 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, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10. TERMINATION
10.1 If the Customer becomes subject to any of the events listed in Condition 10.2, or FAL Scottish Propeller Service Ltd reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to FAL Scottish Propeller Service Ltd,FAL Propeller Service Ltd may cancel or suspend all further performance of the Works and deliveries of Goods under the contract or under any other contract between the Customer and FAL Scottish Propeller Service Ltd without incurring any liability to the Customer.
10.2 For the purposes of Condition 10.1, the relevant events are;
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay his debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) is subject to any of the foregoing or has any partner to whom any of the foregoing apply;
(b) The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangements with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a diligence, distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver.
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 10.2(a) to Condition 10.2(h) (inclusive);
(j) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business.
(k) the Customer’s financial position deteriorates to such an extent that in FAL Scottish Propeller Service Ltd’ opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies, or by reason of illness or incapacity (whether mental or physical), is incapable of managing his own or her own affairs or becomes a patient under any mental health legislation.
Where the Contract is terminated by FAL Scottish Propeller Service Ltd or, pursuant to Condition 5.3, by the Customer, all outstanding sums in respect of the Works performed and Goods delivered for the Customer shall become immediately due. Termination of the Contract, however arising shall not affect any of the parties’ rights and remedies that have accrued as at termination, and the Customer shall promptly return to FAL Scottish Propeller Service Ltd any of FAL Scottish Propeller Service Ltd’s Materials which are in the Customer’s possession. If the Customer fails to do so, FAL Scottish Propeller Service Ltd or its agents may enter the Customer’s premises and take possession of them or if they are at a third party’s premises where FAL Scottish Propeller Service Ltd is required to carry out the Works at the direction of the Customer, the Customer shall procure access to such place to enable FAL Scottish Propeller Service Ltd to recover such items.
11. GENERAL
11.1 Assignation and subcontracting.
Neither party may assign or otherwise transfer the Contract in whole or in part without the prior written consent of the other.
11.2 Severance.
(a) 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.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.3 Waiver.
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.
11.4 No Partnership.
Nothing in the Contract in intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other part in any way.
11.5 Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 Variation.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing.
11.7 Governing law and jurisdiction.
The Contract, and any dispute or claim arising out of or on connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, Scottish law and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Scotland.
|
