Please see below our terms and conditions of conducting a Design & Refit project with SETAG.
Terms of Business
- PRELIMINARY PROVISIONS AND DEFINITIONS
- These are the Terms of Business on which we supply service and repair work. In these Terms of Business:
“Applicable Laws on Consumer Rights” means all applicable laws, rules, regulations, instruments and provisions in force from time to time relating to consumer protection, including but not limited to the Consumer Rights Act 2015.
“Company” means Setag Yachts Limited with company number 13096558 and whose registered office is at Units 5 & 9 Atlantic Building, Queen Anne’s Battery Plymouth Devon PL4 0LP.
“Consumer” means a Customer who is considered a “consumer” under the Applicable Laws on Consumer Rights.
“Customer” means the Party or Parties with whom the Company agrees to perform the Work and shall include the legal owner of any relevant Vessel.
“Materials” means any materials, goods, parts or items the Company needs to purchase in order to carry out the Work.
“Order” means the Customer’s order for the Work, as set out in the Customer’s order form, or the Customer’s written acceptance of the Company’s quotation.
“Parties” means the Company and the Customer; each a Party and collectively the Parties.
“Vessel” means any yacht, boat or other floating craft of any nature (or part thereof) entrusted to the Company for the Work to be undertaken.
“Work” means the goods and services supplied by the Company to the Customer.
2. ENTERING INTO A LEGALLY BINDING CONTRACT
2.1 A contract between the Company and the Customer will come into being in one of the following ways:
a. when the Customer signs the order form or provides written acceptance of the Company’s quotation, there will be a legally binding contract on the date of signature or acceptance.
b. where the Customer and the Company agree orally that the Company should provide the Work then there will be a legally binding contract on the date of the oral agreement.
c. When the Company receives money from the customer, there will be a legally binding contract on the date of receipt.
2.2 The Company suggests that before the Customer signs the order form or provides written acceptance of the Company’s quotation/Order or orally agrees to the Company providing the Work that the Customer reads through these terms and conditions.
2.3 The Customer should keep a copy of these terms and conditions for its records.
3. PRICES AND ESTIMATES
3.1 The price for the Work shall be the price set out in the Order (the “Price”).
3.2 The Company will give an estimate of the Price to carry out the work required and shall exercise reasonable skill and judgement when doing so.
3.3 All estimates are subject to the accuracy of information provided by the Customer, are based on a superficial examination, the assumptions we make and do not include the cost of any emergent work nor the cost of any extensions to the Work. The Company reserves the right subject to Clause 3.4 to increase the Price for the Work.
3.4 The Company will inform the Customer of any proposed increase in the estimated Price, together with the reasons for such increase, and will proceed with the Work after having obtained the Customer’s approval (such approval not to be unreasonably delayed or withheld). 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 the Price.
4. PAYMENT
4.1 Unless otherwise agreed between the Parties in writing, payment for all Work provided shall be made by bank transfer or card payment to the Company’s nominated account and shall be due by the payment dates as stated on the Order. If no payment schedule is provided in the Order then payment shall be due immediately upon receipt by the Customer of the Company’s invoice or, if earlier, prior to the departure of the Vessel from our premises. Payment shall be deemed to have been made when the Company receives cleared funds.
4.2 If a deposit is payable under the Order, no Work shall commence until such deposit payment has been received by the Company in cleared funds.
4.3 If the Customer fails to make any payment due to the Company by the due date, the Company has the right to charge interest on the overdue amount at the rate of four percent (4%) above Bank of England base rate from time to time accruing on a daily basis from the due date until actual payment of the overdue amount and/or postpone all Work until the overdue amount has been received in cleared funds. This is likely result in a delay to the commencement and/or finish date.
4.4 The Customer shall pay all amounts due under these Terms of Business and the Order in full without any set-off whatsoever.
4.5 To the extent permitted by law, the Customer hereby grants to the Company a lien and a continuing security interest, and, where applicable, a maritime lien, over the vessel as security for payment of the Price (together with any interest accrued) until full payment of the Price by the Customer.
4.6 The Company shall be entitled to charge the Customer for storage and the provision of any ongoing services at the Company’s normal daily rates until full payment by the Customer and removal of the Vessel from the Company’s premises.
5. DELAYS
5.1 Time estimates given for completion of the Work are estimates only and are given without guarantee. The Company shall not be liable for any failure or delay in the performance or completion of the Work, or for any loss or damage resulting therefrom.
6. THE VESSEL’S MOVEMENTS
6.1 The Company shall have the right to order such movements of the Vessel within the business premises as outlined in your Order and such tests or trials it deems necessary in order to perform and determine the due completion of the Work and/or for reasons of safety, security or good management of the Company’s business and premises. The costs of such movements, trials and/or tests and/or consumables shall be borne by the Customer.
7. TITLE AND RISK
7.1 Risk in all goods, equipment and materials supplied by the Company shall pass to the Customer at the time of supply or when such goods, equipment or materials are assigned or affixed to the Vessel, as the case may be.
7.2 Title to all goods, equipment and materials supplied by the Company shall not pass to the Customer until the Company receives payment in full for the Work.
8. TIMING
8.1 The Company’s responsibility to complete the Work by particular dates:
The Company aims to complete the Work by the date and time estimates provided (if any), but cannot guarantee or provide a firm commitment that:
A. It will commence the Work by a specified date or time; or
B. It will complete the Work by any specified date or time; or
C. the performance of any individual.
8.2 What can happen if the Company does not commence or complete the Work:
A. If the Company does not commence or complete the Work within a reasonable period from the date(s) estimated in the Order, the Customer may either choose either to continue to wait until the Company can commence or complete the Work or can cancel the contract.
B. Where the Company has commenced Work and the Customer wishes to cancel the contract, the Customer will only have to pay for any Work completed up to the date of cancellation and for any goods/Materials which the Company has a legal obligation to pay for. If the Customer has made payments in excess of the amount of Work performed or goods/Materials purchased, the Company will return the difference to the Customer within [14] days of cancellation.
C. What is a reasonable period of time depends on the type of Work the Company is instructed to carry out and the length of time it will take to complete.
9. GUARANTEE
9.1 After completion of the Work by the Company, the Company shall be free of all responsibility and liability whatsoever except for the guarantee contained in this paragraph 9 (“the Guarantee”), without prejudice to such mandatory rights, if any, as the Customer may have under the Consumer Rights Act 2015.
9.2 The Company guarantees that that, for a period of twelve months from completion of the Work (the “Warranty Period”), the Work will be free of defects in material and workmanship, provided always that the Customer gives notice in writing to the Company of any defects in material or workmanship (“Defective Work”) within 14 days of becoming apparent.
9.3 On notification by the Customer of the Defective Work, the Company will be given a reasonable opportunity to inspect the Defective Work and if it is the Company’s responsibility, the Company shall repair or re-perform the Defective Work at its discretion. Delivery of repairs or re-performance under this guarantee will be made in accordance with these Terms of Business.
9.4 The Customer shall, immediately after the discovery of any Defective Work, take all appropriate steps to mitigate any loss or damage and to prevent any Defective Work becoming more serious.
9.5 The Company shall not be liable for any Defective Work if the defect arose as a result of:
A. The Customer’s failure to follow the Company’s oral or written instructions;
B. The Company following any drawing, design or specifications supplied by the Customer;
C. Fair wear and tear, wilful damage, negligence or abnormal working conditions; and/or
D. Changes made to ensure compliance with applicable statutory or regulatory standards.
9.6 Any remedial work which is put in hand by the Customer directly without first notifying the Company and allowing the Company a reasonable opportunity to inspect the Defective Work shall invalidate the guarantee provided under clause 9.1.
9.7 The Customer and the Company will discuss and agree a mutually convenient location for the Company’s inspection and/or repair of the Defective Work in accordance with Clause 9.2.
9.8 The Customer is responsible for:
A. All costs related to moving the Vessel to the agreed location for inspection and/or repair of the Defective work and
B. All costs related to the Company’s and its workers’ attendance at the Vessel for inspection and/or repair of the Defective work (including but not limited to all travel and subsistence and
C. All costs related to the Vessel’s berth or yard space for the period of the Defective work and all associated costs (including but not limited to any lift of the Vessel) and
D. The cost of transporting to the Vessel any necessary materials for the repair of the Defective work.
9.9 The Company’s sole cost liability is for the material and labour costs to repair the Defective Work for which the Company is responsible under this Clause 9.
9.10 If you are a Consumer we only supply the products and services to you for domestic and private use. Therefore, where the Customer is not a Consumer the Company accepts no liability to the Customer in respect of any loss of profit or economic loss which the Customer or its customer or any other person may sustain as a result of the failure of any faulty or unfit article supplied to the Customer by the Company.
9.11 The Company shall assign to the Customer any and all of its rights against the manufacturer or supplier of any particular article used in the Work or supplied to the Customer as part of the Work.
9.12 The Company’s warranty is non-transferrable if the vessel is sold within the warranty period.
10. QUALITY STANDARDS
The Company will exercise reasonable care and skill in the performance of the Work in accordance with the provisions of these Terms of Business and in compliance with relevant laws and regulations in force at the time the Company carries out the Work.
11. LIABILITY
11.1 The Company shall not be liable for any failure or delay in performing its obligations hereunder, or for any loss or damage, caused by or arising from events, circumstances or causes beyond its reasonable control.
11.2 Notwithstanding clause 11.5, the Vessel and any other property are left at the Company’s premises or the business premises as defined within the Order at the Customer’s own risk.
11.3 The Company shall not be under any duty to salvage or preserve the Vessel from the consequences of: (a) any defect in the Vessel and/or (b) an accident which has not been caused by the Company. However, the Company reserves the right to salvage or preserve the Vessel, at its sole discretion, in appropriate circumstances and in particular where the safety of people, property or the environment is at risk.
11.4 The Customer shall maintain, at no cost to the Company, liability insurance providing cover for any loss or damage for which the Customer may be liable under these Terms of Business (including third party liability cover and, where appropriate, employer’s liability cover in respect of any of its employees).
11.5 The Company shall maintain, at no cost to the Customer, liability insurance for such loss or damage for which the Company may be held liable under these Terms of Business.
11.6 Each Party shall produce copies of insurance policies as evidence of cover, immediately (and in any case within seven days) upon request by the other Party.
11.7 Nothing in this Agreement excludes or limits either Party’s liability for death or personal injury caused by that Party’s (or its employees’, agents’ or sub-contractors’) negligence or for fraud or fraudulent misrepresentation.
11.8 Subject to clause 11.7, the Company shall under no circumstances whatsoever, be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or any indirect or consequential loss arising under or in connection with these Terms of Business.
11.9 The Company’s total liability under contract, tort or otherwise shall be limited (except in cases of wilful misconduct or fraud) to the Agreed Price of the contract.
12. SITUATIONS OR EVENTS OUTSIDE THE COMPANY’S REASONABLE CONTROL
12.1 In addition, there are certain situations or events which occur which are not within the Company’s reasonable control (some examples are given in clause 12.2 below). Where one of these occurs, the Company will normally attempt to recommence the Work as soon the situation has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before it can start or continue the Work.
12.2 The following are examples or events or situations which are not within the Company’s reasonable control:
A. Where other conditions make it impossible or unsafe for it to complete the Work;
B. If the Materials or goods are not delivered on the date or at the time agreed with the supplier of the Materials and/or goods (and it is not possible to obtain a replacement from an alternative supplier at all or within a reasonable amount of time, or the price charged by the alternative supplier is excessively higher than by the original supplier if ordered at short notice);
C. Where the Customer makes a change in the Work it wishes the Company to perform (and this results in, e.g., the Company having to do further work or wait for new or different Materials and/or goods);
D. Where the Company has to wait for other providers of services (who have been engaged by the Customer) to complete their work before the Company is able to perform the Work (or the relevant part of the Work dependant on the other provider);
E. For other some unforeseen or unavoidable event or situation which is beyond the Company’s control.
12.3 If the delay in the Company recommencing the Work will be excessive then it will offer the option of either:
A. Continuing to wait until it is able to recommence the Work: if the Customer is required to make any payments during this period, then the Company will not require any payments until the Work can recommence; or
B. Allowing the Customer to cancel the contract: if the Customer choose this option, then it will only have to pay for any Work completed up to the date of cancellation and for any Materials and/or goods which the Company has a legal obligation to pay for. If the Customer has made payments in excess of the amount of Work performed or goods/Materials purchased, the Company will return the difference to the Customer within [14] days of cancellation.
13. ACCESS TO PREMISES / WORK
13.1 No work or services shall be carried out by the Customer or any parent or associated company and/or firm, as well as any authorised member, agent, employee, contractor or representative of the Customer (Authorised Representatives) on the Vessel whilst it is in the custody or control of the Company at the Company’s premises without the Company’s prior written consent. The Company’s consent may be revoked with immediate effect at any time.
13.2 The Customer and its Authorised Representatives are subject to the Company’s health and safety, environmental and access policies and shall further be obliged to comply with all laws and regulations relating to environmental protection and safety. The Customer shall indemnify the Company for any loss or damage arising from any breach by the Customer or its Authorised Representatives of this clause 13.2.
13.3 The Customer is responsible for any damage or loss caused directly or indirectly from any breach of its obligations under these Terms of Business.
13.4 If the Customer breaches these terms and conditions, the Company shall be entitled to terminate the Work and all amounts owing for such Work completed up until the termination date shall become immediately due and payable.
13.5 The Customer shall ensure that it and its Authorised Representatives do not cause any nuisance or annoyance to the Company, any other customer or person present or residing in the vicinity and does not interfere with the Company’s schedule for the Work and/or the good management of the Company’s premises and business.
14. CONSUMER RIGHTS
14.1 To the extent that these Terms of Business contradict with the Applicable Laws on Consumer Rights, the rights conferred on Consumers under the Applicable Laws on Consumer Rights remain unaffected, including the Consumer’s right to cancel their Order (if made off premises) within 14 days without giving any reason in accordance with the Consumer Contracts Regulations 2013. If the Customer asks the Company to commence works prior to expiry of the 14 day cooling off period, the Company shall be entitled to charge for the proportion of Work carried out prior to receiving any notice of cancellation in any event.
14.2 In the event the Consumer cancels the Order or any part of the Works after the Company has already ordered off the shelf parts or Materials from third party suppliers then the Consumer shall be responsible for any return costs to those third party suppliers subject to returns being accepted. If returns are not accepted or the parts or Materials are bespoke then the Company will be entitled to charge the Consumer or retain the associated costs from any payments made by the Consumer.
14.3 When consumers do not have a right to change their minds: you right as a Consumer to change your mind does not apply in respect of:
A. Servies, once these have been completed, even if the cancellation period is still running; and
B. Any bespoke products made to order or ordered from a third party specifically for you.
15. VAT
15.1 All amounts stated (whether orally or in writing) are exclusive of VAT, which will be added at the rate currently in force.
16. CANCELLATION BY THE CUSTOMER
16.1 Once the Customer enters into a binding contract with the Company, the Customer will not normally be able to cancel the contract, except by agreement or as otherwise provided for in these terms and conditions.
16.2 If the Company agrees to cancel, then the Customer will be responsible for the cost of:
A. Any of the Company’s time in carrying out the Work up to the date of termination;
B. Any Materials the Company are contractually committed to buying up to the date of termination (whether or not the Company needs to pay for them before or after the date the contract is cancelled). Any Materials purchased by the Company (but not used in carrying out the Work) will be delivered to the Customer.
16.3 In the circumstances stated in clause 16.2 the Company will first deduct the amounts for which the Customer is responsible from any deposit paid. Any remaining deposit will be returned to the Customer. If the amount owing is greater than the deposit, the Company will invoice the Customer for the amount in excess of the deposit.
16.4 If the Customer:
A. Purports to cancel the contract; or
B. Gives notice purporting to cancel; or
C. Otherwise does not fulfil its obligations (such as by not paying any sums due to be paid) in a way which amounts to cancelling the contract,
the Company does not have to accept the Customer’s cancellation except as provided in clause 14.1 or as otherwise provided for in this Terms of Business. However, the Company may choose to accept cancellation, and if so, the Customer will be required to pay a reasonable amount for the losses and costs (including loss of profit) the Company has suffered. If the Customer has paid a deposit, this will be retained and if the Company’s reasonable losses and costs (including loss of profit) are greater than the deposit retained, the Customer will be required to pay for its losses and costs in excess of the deposit retained.
17. SEVERANCE
17.1 If any provision of these Terms of Business is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17.1 shall not affect the validity and enforceability of the remaining provisions of these Terms of Business.
18. AMENDMENTS TO THE CONTRACT TERMS AND CONDITIONS
18.1 The Company will have the right to amend these terms and conditions of this contract where:
A. It needs to do so in order to comply with changes in the law or for regulatory reasons; or
B. Needs to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the contract), as long such correction is minor and does not materially affect the contract.
18.2 Where making any amendment, the Company will give the Customer 7 days’ prior notice (unless the contract is terminated before that period).
19. COMMUNICATING WITH THE COMPANY
19.1 The Customer can telephone the Company on the following contact number: 01752 648618.
19.2 However, for important matters, the Customer should make contact in writing and send any communications by post or email to the following addresses:
A. Email: [email protected]
B. Postal address Unit 9, Atlantic Building, Queen Anne’s Battery, Plymouth Devon PL4 0LP
20. GOVERNING LAW AND JURISDICTION
20.1 The Agreement shall be governed and construed in accordance with English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the arbitration Act 1996 (or any statutory modification or re-enactment thereof). The London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced shall apply and the value of the dispute will determine the appropriate LMAA Procedure and number of Arbitrators, under the LMAA Terms. The language of the dispute will be English.
The award rendered by the arbitration shall be final and binding upon both parties and may if necessary be enforced by the Court or any other competent authority in the same manner as a judgment of the High Court of England and Wales.
Notwithstanding the above, parties may agree at any time to refer to mediation any difference and/or dispute arising out of or in connection with this Agreement.