TERMS OF BUSINESS
2. Definitions and interpretation
3. Haul out
5. Statement of Work
6. Solent Refit’s obligations and guarantee
7. Client’s obligations
8. Client carrying out work on the Vessel and general obligations
9. Change control
10. Price and quotations
11. Invoicing and payment
12. Limitation of liability and insurance
14. Consequences of termination
16. Sale of the Vessel
17. Data protection
19. Governing law and jurisdiction
1.1 Solent Refit and the Client have agreed that Solent Refit will carry out or procure the carrying out of work to the Vessel.
1.2 These terms of business are incorporated into the agreement between the Client and Solent Refit and form part of the agreement.
1.3 Unless otherwise agreed in writing, order confirmation, docking, haul out, refit, repair or modification works shall constitute agreement to these terms of business.
1.4 In the event that Solent Refit supplies any services of the nature contemplated by the TOWCON 2008 International Ocean Towage Agreement (Lump Sum) terms and conditions, such terms and conditions shall apply to the provision of such services as if they were incorporated into this agreement on the basis that “Tugowner” means Solent Refit, “Hirer” means the Client, the “Tug” means such vessels and equipment as may be supplied by Solent Refit for the purpose of such services and “Tow” means the Vessel. By entering into this agreement, the Client confirms the acceptance of the incorporation of such terms and conditions into this agreement.
2. DEFINITIONS AND INTERPRETATION
2.1 Unless otherwise specified, references to clauses shall be to clauses in these terms of business and, unless the context otherwise requires, the following definitions apply:
Bay: the allocated space for the Vessel in the Premises which may be alongside a pontoon, in a slipway cradle, on the hard standing or inside in an allocated space.
Client's Equipment: any equipment, tools, systems, cabling or facilities provided or owned by the Client.
Client's Manager: the Client's manager, appointed in accordance with clause 7 and failing such appointment the captain of the Vessel.
Docking Plan: the drawings and/or information provided by the Client to Solent Refit which includes details of the Vessel’s strong points, fuel level, ballast level and stability prior to the Haul Out Date.
Haul Out Date: the date for haul out of the Vessel specified by Solent Refit or such other date as may be subsequently agreed in writing for that purpose by Solent Refit and the Client.
Launch Date: such date as the Vessel may be actually relaunched pursuant to clause 4.
Premises: Unit 4, Hythe Marine Park, Shore Road, Hythe, Hampshire SO45 6HE.
Statement of Work: any quotation or statement agreed by the Client and Solent Refit pursuant to this agreement as amended from time to time in accordance with clause 9 detailing the work to be carried out on the Vessel.
Services: the services to be provided by Solent Refit, including any work and services specified in the Statement of Work, together with any other services which Solent Refit provides or agrees to provide to the Client.
Solent Refit's Equipment: any equipment, tools, systems, cabling or facilities provided by Solent Refit or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Client.
Solent Refit's Yard Manager: Solent Refit's manager appointed pursuant to clause 6.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Vessel: the vessel or equipment to which this agreement applies.
Working Day: any day of the year between the hours of 0800 and 1700 that the Premises and Bay are made available to the Client by Solent Refit but excluding any time when the Premises or Bay are subject to closure; any closure of the Premises or Bay shall be notified to the Client or its agents in writing not less than 48 hours in advance of such closure unless the same has to be closed due to unforeseen circumstances.
2.2 Words importing one gender include any other genders and words importing the singular include the plural and vice versa.
2.3 A reference to a person includes a reference to a natural person, corporate or unincorporated body (whether or not having separate legal personality and wherever and however incorporated or established) and that person’s personal representatives, successors and permitted assigns.
2.4 The clause headings in these terms of business are for reference only and shall not affect the construction or interpretation.
2.5 Any obligation on a person not to do something includes an obligation not to agree or allow that thing to be done and to prevent such act or thing being done by a third party.
2.6 Unless the context requires otherwise, the words “include”, “including”, “in particular”, “for example” or any similar expression shall be construed as illustrative, shall not limit the sense of the words and shall be deemed to be followed by the words “without limitation”.
2.7 A reference to “writing” or “written” includes fax and e-mail.
2.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under that statute or statutory provision.
2.9 References to “this agreement” include the parts setting out the statement of the parties, these terms of business and any other terms and conditions attached to this agreement or incorporated herein by reference
or by agreement.
3. HAUL OUT
3.1 Where the Vessel is to be hauled out the Client shall moor the Vessel alongside the pontoon designated by Solent Refit at least 24 hours prior to the Haul Out Date or by such other time notified to the Client by
Solent Refit in writing.
3.2 The Client shall deliver the Docking Plan to Solent Refit sufficiently in advance of the Vessel’s arrival at the designated pontoon to allow time for the slipway design for the haul out. The Client warrants that the Docking Plan and any changes to the Docking Plan will be accurate in all material respects. In any event, the Client shall inform Solent Refit, prior to arrival at the designated pontoon, of any way in which the Vessel does not comply with the Docking Plan, for example if the fuel or ballast levels differ to those provided with the Docking Plan.
3.3 The Client shall ensure that the Vessel is properly trimmed for the haul out.
3.4. 1In the event of any discrepancies between the condition of the Vessel and the Docking Plan, the Haul Out Date shall be delayed until Solent Refit is satisfied that the Vessel is in a suitable condition to be hauled out.
3.4. 2In the event of any such delay the Client shall be liable to reimburse Solent Refit for any costs and liability incurred by Solent Refit to any other vessel owner whose slipping is thereby delayed.
3.5 On the Haul Out Date Solent Refit shall take control of the Vessel from the moment the Vessel is fully aground on the slipway.
4.1 When the work on the Vessel has been completed in accordance with the Statement of Work Solent Refit shall give the Client not less than 24 hours’ notice of the intended Launch Date.
4.2 The Client shall ensure that the Vessel is seaworthy prior to the Launch Date. In the event that the Client wishes to defer the Launch Date it shall advise Solent Refit of the date when the Vessel will be ready to be launched. Solent Refit will notify the Client of the first available date for launch as soon as possible thereafter and the parties shall negotiate and agree the revised Launch Date.
4.3 The Client will be liable to pay Solent Refit’s current daily rate for each additional day after the original Launch Date that the Vessel remains in the Premises up to and including the date the Vessel is actually launched and leaves the Premises.
4.4 On the Launch Date Solent Refit shall relaunch the Vessel and notify the Client or the Vessel’s crew of the time when the Client shall resume control of the Vessel and the Client shall resume control of the Vessel from that time.
5. STATEMENT OF WORK
5.1 The Statement of Work shall be agreed in the following manner:
5.1.1 the Client shall provide Solent Refit with a request for a Statement of Work, setting out the requirements and specifications of the services which it is requesting from Solent Refit, including a description of what work is to be done, dates by which it is requested to be started and finished and such other information as Solent Refit may request to allow Solent Refit to prepare a draft Statement of Work;
5.1.2 Solent Refit shall, as soon as reasonably practicable, provide the Client with a draft Statement of Work; and
5.1.3 Solent Refit and the Client shall discuss and agree the draft Statement of Work and when it has been agreed, they shall both sign a copy of it and it shall become part of and subject to this agreement.
5.2 Solent Refit shall charge for the preparation of the Statement of Work on a time and materials basis in accordance with clause 10.
5.3 Once the Statement of Work has been agreed and signed in accordance with clause 5.1 3, no amendment shall be made to it except in accordance with clause 9.
6. SOLENT REFIT'S OBLIGATIONS AND GUARANTEE
6.1 Solent Refit shall use reasonable endeavours to provide the Services from the Haul Out Date or such other date as is agreed between the parties in accordance with the Statement of Work (where applicable) and otherwise to a satisfactory quality in all material respects.
6.2 The Services supplied under this agreement shall continue to be supplied until the work on the Vessel is completed in accordance with the Statement of Work unless this agreement is terminated in accordance with its terms.
6.3 In respect of defects resulting exclusively from poor workmanship of Solent Refit, Solent Refit will remedy or procure the remedy of such defects appearing within twelve months from the completion of the work on the Vessel provided that notice of such defect is given to Solent Refit within fourteen days of the discovery of the defect and provided also that Solent Refit will have no liability under this guarantee if the Client has put in hand remedial work other than by Solent Refit or under the terms of this clause.
6.4 Solent Refit shall appoint Solent Refit's Yard Manager who shall have authority contractually to bind Solent Refit on all matters relating to the Services. Solent Refit shall use reasonable endeavours to ensure that the same person acts as Solent Refit's Yard Manager throughout the term of this agreement, but may replace him from time to time where reasonably necessary in the interests of Solent Refit's business.
6.5 Any time for the provision of the Services is given in good faith but is an estimate only, is not guaranteed and is not of the essence of this agreement. Solent Refit shall not be responsible for any delay in the provision of the Services or for the consequences of any such delay unless it arises from the negligence or deliberate act or wilful default of Solent Refit, its servants or agents.
6.6 Notwithstanding anything to the contrary in this agreement, Solent Refit shall have no liability for any work carried out in accordance with the instructions of the Client or in accordance with designs or drawings supplied by the Client or a third party acting on the instructions of the Client unless included in the Statement of Work nor in respect of materials supplied by the Client or a third party acting on the instructions of the Client.
6.7 To the extent legally permitted, Solent Refit hereby assigns to the Client with effect from the Launch Date any third party warranty or similar rights given by suppliers of equipment and goods supplied by Solent Refit
pursuant to the Services.
7. CLIENT'S OBLIGATIONS
7.1 The Client shall appoint the Client’s Manager and the Client’s Manager shall, in addition to the Client, have the authority contractually to bind the Client on all matters relating to the Services and any changes to the Services or to the terms and conditions relating to the provision of the Services.
7.2 The Client shall:
7.2.1 co-operate with Solent Refit in all matters relating to the Services;
7.2.2 provide, in a timely manner, such information as Solent Refit may reasonably require, and ensure that it is accurate in all material respects;
7.2.3 ensure that all Client's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
7.2.4 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Solent Refit's Equipment, and the use of the Client's Equipment, in all cases before the date on which the Services are to start;
7.2.5 comply and procure that the crew of the Vessel and all other personnel of the Client shall comply with all health and safety and fire regulations and requirements and procedures notified to the Client by Solent Refit or applicable in the Premises.
7.3 The Client warrants the accuracy in all material respects of all information, documents and data supplied by it to Solent Refit relating to the Vessel, the Client’s Equipment and the provision of the Services including without limitation the Docking Plan and accepts that Solent Refit will and may rely upon the same for the provision of the Services.
7.4 If Solent Refit's performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Solent Refit shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
7.5 The Client shall be liable to pay to Solent Refit, on demand, all reasonable costs, charges or losses sustained or incurred by Solent Refit (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere and including without limitation any damage to docks or slips of Solent Refit) that arise directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement.
7.6 The Client shall not, without the prior written consent of Solent Refit, at any time from the date of this agreement to the expiry of twelve months after the last date of supply of the Services, solicit or entice away from Solent Refit or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Solent Refit in the provision of the Services.
8. CLIENT CARRYING OUT WORK ON THE VESSEL AND GENERAL OBLIGATIONS
8.1 Subject to the provisions of this clause, no work shall be carried out on or to the Vessel whilst it is on the Premises without the prior written consent of Solent Refit other than minor running repairs or minor maintenance of a routine nature by the Client or the regular crew of the Vessel.
8.2 The Client shall provide Solent Refit with a statement of the work to be carried out to the Vessel including a statement detailing the fire risks associated with the work and shall provide such additional information as Solent Refit may request. When Solent Refit is satisfied with the information provided it shall provide its written consent to the work (in this clause referred to as the “Agreed Work”).The following provisions of this clause shall apply to all Agreed Work.
8.3 The Client agrees and undertakes:
8.3.1 to use the Bay only for Agreed Work relating to the repair, maintenance and refitting of the Vessel and for no other purpose;
8.3.2 to use the Bay for its sole use and not to share or sublet all or any part of the Bay;
8.3.3 to ensure that the Bay is properly cleared and cleaned daily and on completion of the work to the Vessel, and in particular to ensure that all flammables and hazardous substances are stored in such locations as Solent Refit may direct and in accordance with clause 8.3.8, and that all tools and equipment are securely stowed away when not in use;
8.3.4 not to do or permit to be done on the Premises anything which is illegal or which is or may become a nuisance (whether actionable or not), damage, annoyance, inconvenience or disturbance to Solent Refit or any person using any part of the Premises;
8.3.5 not to obstruct any part of the Premises, make them untidy or leave any equipment, tools, material, rubbish, or other items on them;
8.3.6 not to carry out work to the Vessel outside the Working Day without written consent obtained in advance from Solent Refit;
8.3.7 to notify Solent Refit as soon as possible of any proposed changes to the Agreed Work and any consequential amendments to the fire risk assessment provided to Solent Refit. The Client shall not continue with or start works without the prior written approval of Solent Refit to the changes;
8.3.8 to comply with all applicable regulations including health and safety legislation or regulations and codes of best practice and Solent Refit’s site rules and any changes to the same, in force from time to time;
8.3.9 to notify Solent Refit before any work involving heat producing equipment (hereinafter referred to as “Hot Work”) is carried out and not to commence Hot Work until Solent Refit has confirmed that such work can be carried out and the requisite Hot Work permit has been obtained and displayed by the Client in a prominent place in the Bay; andto comply with any instructions issued by Solent Refit in relation to Hot Work or other work to be undertaken
on the Vessel;
8.3.10 not to carry out any spray painting in the Bay without the prior written consent of Solent Refit. Such work is normally to be carried out in the area designated by Solent Refit from time to time and notified to the Client;
8.3.11 to provide its own hoses for filling water tanks and the Client agrees that water supplied in the Premises and hoses supplied by Solent Refit are not intended for drinking water and the client will adequately flush all hose union taps and hoses used to fill tanks for drinking water prior to use;
8.3.12 to ensure that all the Vessel’s crew and workers’ cars are parked in accordance with Solent Refit’s instructions or designation. Solent Refit shall accept no responsibility for any damage howsoever caused to cars
parked on the Premises;
8.3.13 to notify Solent Refit of its Health and Safety responsible person and to ensure any changes to these contact details are notified to Solent Refit as soon as such changes occur;
8.3.14 to maintain, on a daily basis, an accurate record of the people on the Premises in relation to the Vessel and provide a list of the same to Solent Refit or the site security staff upon the Vessel’s entry into the Premises and thereafter in accordance with Solent Refit’s usual procedures;
8.3.15 to ensure that all persons on site in relation to the Vessel wear and display at all times a security pass in all common areas and that these passes are left at the relevant tally board when leaving any Vessel;
8.3.16 to comply with all Solent Refit fire and safety roll calls and musters and procedures notified to the Client by Solent Refit;
8.3.17 to indemnify Solent Refit and keep Solent Refit indemnified against all losses, claims, demands, actions, proceedings, damages, costs, expenses or other liability in any way arising from this agreement;
8.3.18 not to make any alteration or addition whatsoever to the Bay, to ensure that all materials and components being used are kept within the curtilage of the Bay including those designated by taped boundaries set up by Solent Refit and to ensure that the Client complies with the demarcation of each Bay in the Premises to avoid intrusion into other parts of the Premises;
8.3.19 on or before the Launch Date, to vacate the Bay leaving it in a clean and tidy condition removing all equipment, parts, tools, substances and rubbish and ensure that the Bay is in the same state as at the Haul Out Date, provided that Solent Refit will have the right to charge the Client for any clean-up cost required to return the Bay to its condition at the Haul Out Date;
8.3.20 to comply with all other reasonable directions or instructions by Solent Refit from time to time in relation to the use of and safety procedures in relation to the use of the Bay.
9. CHANGE CONTROL
9.1 The Client's Manager and Solent Refit's Yard Manager shall meet as often as required or in accordance with the procedures agreed between the parties to discuss matters relating to the Services. Minor changes to the Services which do not affect the nature or quality of the Services may be agreed by agreement between the Client’s Manager and Solent Refit’s Yard Manager and become immediately effective and implemented. If either party wishes to change the scope, execution, nature or quality of the Services, it shall submit details of the requested change to the other in writing.
9.2 If either party requests a change to the scope, execution, nature or quality of the Services, Solent Refit shall, within a reasonable time, provide a written estimate to the Client of:
9.2.1 the likely time required to implement the change;
9.2.2 any necessary variations to Solent Refit's charges arising from the change;
9.2.3 the likely effect of the change on the Statement of Work; and
9.2.4 any other impact of the change on the provision of the Services.
9.3 If the Client wishes Solent Refit to proceed with the change, Solent Refit has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Statement of Work and any other relevant terms of this agreement to take account of the change and the change has been agreed in writing by the parties.
9.4 Solent Refit may charge for the time it spends assessing a request for change from the Client on a time and materials basis in accordance with Solent Refit’s standard daily fee rates then in force.
9.5 Notwithstanding clause 9.1 and clause 9.2, Solent Refit may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
9.6 Once the Vessel is in the Premises Solent Refit has the right to move the Vessel, the Client’s Equipment and its gear at its discretion for reason of the safety of the Vessel, or the safety and/or convenience of other users of the Premises or for the safety of Solent Refit’s plant and equipment and the Client must pay on the date of the invoice Solent Refit’s reasonable charges for such work. Solent Refit shall provide the Client with an estimate of the likely costs and charges relating to such work prior to incurring them.
10. PRICE AND QUOTATIONS
10.1 The Client shall pay any charges as set out in the Statement of Work.
10.2 Unless otherwise agreed in writing, the price for the provision of the Services shall be based on time, expenses (including charges on a metered basis) and materials actually expended on, or used in connection with, the Services at Solent Refit’s relevant current rate or price.
10.3 The Client shall pay the facilities charge currently in force in respect of all personnel entering the Premises in accordance with the procedures of Solent Refit relating thereto for the time being in force.
10.4 Quotations are subject always to the accuracy of the information provided by the Client, including the Docking Plan. Quotations will not include the costs of any unforeseen work arising from the state of the Vessel or any work, including work resulting from blocking wrongly placed because of an inaccurate Docking Plan or other inaccurate information supplied by the Client.
10.5 Solent Refit will inform the Client as soon as reasonably practical of any proposed increases in quotations found to be necessary and the reasons for them.
10.6 All prices and quotations are exclusive of VAT, unless otherwise stated, and VAT shall be added where appropriate or required to each invoice.
10.7 In the event of cancellation, the Customer will be liable to reimburse Solent Refit for all costs associated with preparing the works that have been quoted, according to the following:
- 50% of the amount of the deposit invoice if the cancellation is made less than 3 months from the vessel’s scheduled arrival date for a project
- 75% of the amount of the deposit invoice if the cancellation is made less than 2 months from the vessel’s scheduled arrival date for a project
- 100% of the amount of the deposit invoice if the cancellation is made less than 1 months from the vessel’s scheduled arrival date for a project
11. INVOICING AND PAYMENT
11.1 Solent Refit shall invoice the Client monthly in arrears for its charges for time, expenses and materials and any other agreed charges for the month concerned together with any VAT payable.
11.2 The Client shall pay each invoice submitted to it by Solent Refit, in full and in cleared funds, within 7 days of the date of the invoice and in any event prior to the Vessel leaving the Premises and on termination of this agreement to a bank account nominated in writing by Solent Refit.
11.3 Without prejudice to any other right or remedy that it may have, if the Client fails to pay Solent Refit on the due date:
11.3.1 the Client shall pay interest on the overdue amount at the rate of 8% per annum above HSBC Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount; and
11.3.2 Solent Refit may suspend the provision of all Services and any movement of the Vessel until payment has been made in full.
11.4 All sums payable to Solent Refit under this agreement shall become due immediately on its termination, despite any other provision.
11.5 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11.6.1 Solent Refit has the right to exercise a lien upon the Vessel, and its gear and equipment and the Client’s Equipment in respect of sums payable under this agreement.
11.6.2 Solent Refit reserves the right to charge for storage, hard standing or berthing at its usual commercial rates during the period of the exercise of the lien.
11.7 The terms of this Agreement are subject to the provisions of the Torts (Interference with Goods) Act 1977 and for the purposes of this Act it is hereby expressly agreed that Solent Refit’s obligations to the Client as custodian of the Vessel (and any Client’s Equipment) terminate upon the expiry or termination of this agreement. Pursuant to this Act, Solent Refit has a right of sale exercisable in certain circumstances, in particular if payment of any invoice is not made in accordance with this agreement or if the Client abandons the Vessel or any Client’s Equipment and does not remove it after being requested to do so by Solent Refit.
For the purposes of this Act, it is agreed and recorded that:
11.7.1 goods for repair or other treatment are accepted by Solent Refit on the basis that the Client is the owner of the goods or the owner’s authorised agent and that it will take delivery or arrange collection when the repair or treatment has been carried out;
11.7.2 Solent Refit’s obligation as custodian of goods accepted for storage ends on notice from Solent Refit to the Client of termination of this agreement; and
11.7.3 the place for delivery and collection of the goods shall be at the Premises unless agreed otherwise.
12. LIMITATION OF LIABILITY AND INSURANCE
12.1 Nothing in this agreement limits or excludes Solent Refit's liability for:
12.1.1 death or personal injury caused by its negligence;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.2 Solent Refit shall not be liable or responsible to the Client, nor be deemed to have defaulted under or breached this agreement, for any failure or delay in fulfilling or performing any term of this agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond Solent Refit's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. Solent Refit shall give notice within seven days of the force majeure event to the Client, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized.
12.3 Subject to clause 12.1, Solent Refit shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
12.3.1 loss of profits;
12.3.2 loss of sales or business;
12.3.3 loss of agreements or contracts;
12.3.4 loss of anticipated savings;
12.3.5 loss of or damage to goodwill;
12.3.6 loss of use or corruption of software, data or information;
12.3.7 any indirect or consequential loss.
12.4 In respect of goods or services supplied to the Client in the course of the Client’s business, Solent Refit will not be liable to the Client for loss or damage of whatever nature beyond the reasonable cost of remedying defective workmanship or replacing any defective or unsuitable article supplied.
12.5 Solent Refit shall not be liable for the loss, theft, or any other damage of whatsoever nature caused to the Vessel and/or other property (whether insured or not) belonging to the Client or others claiming through the Client or for any delay arising whatsoever except to the extent that such loss, theft, damage or delay was caused by or resulted from the negligence or deliberate act of Solent Refit or its servants or agents.
12.6 The Client shall indemnify Solent Refit against any loss, damage or costs reasonably incurred by, and all claims or proceedings instituted against Solent Refit, its servants or agents which may be caused by the Vessel or the Client, or by any act or default of the Client, its servants, agents, crew, guests, or workers, except to the extent that such loss, damage, costs, claims or proceedings was caused by a negligent act or omission of Solent Refit, its servants or agents.
12.7 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
12.8 All persons entering upon or using any part of the Premises, facilities or equipment do so at their own risk. The Client will ensure that all such persons are made aware of Solent Refit’s Site Rules and safety policy and agree to abide by these requirements. In particular and without limitation, the Client will ensure that all persons on site in relation to the Vessel wear and display at all times a security pass in all common areas and that these passes are left at the relevant tally board when leaving any Vessel.
12.9 Notwithstanding anything to the contrary in the terms and conditions of this agreement the aggregate liability of Solent Refit shall not exceed the sum of £5,000,000 (five million pounds sterling).
12.10 The Vessel, its gear and the Client’s Equipment are stored, moved or otherwise managed and kept at the sole risk of the Client who shall ensure that the Vessel and/or its property and all Client’s Equipment are comprehensively and fully insured against all loss or damage howsoever caused, which insurance must include liability to third parties (including public liability and where relevant employers’ liability) in respect of the Client, the Vessel, the crew for the time being and the Client’s agents, servants, visitors, guests and workers.
Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
13.1 the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than ten days after being notified in writing to make such payment;
13.2 the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten days after being notified
in writing to do so;
13.3 the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the
terms of this agreement;
13.4 the other party 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 or limited liability partnership) 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 its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.5 the other party 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 arrangement with its creditors;
13.6 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 that other party (being a company);
13.7 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 other party
(being a company);
13.8 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.10 the other party (being an individual) is the subject of a bankruptcy petition or order;
13.11 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or issued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
13.12 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.4 to 13.11 (inclusive);
13.13 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
13.14 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
14. CONSEQUENCES OF TERMINATION
14.1 On termination or expiry of this agreement the Client shall immediately pay to Solent Refit all of Solent Refit's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Solent Refit may submit an invoice, which shall be payable immediately on receipt.
14.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
14.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
15. SALE OF THE VESSEL
15.1 In the event that the Client proposes to sell the Vessel whilst it is in the Premises, the Client may use brokers other than the brokerage of Solent Refit but shall give Solent Refit’s brokerage an opportunity to act in the sale upon Solent Refit’s standard terms and conditions which are in accordance with those of the Yacht Brokers Designers and Surveyors Association.
15.2 In the event that the Client wishes to arrange a sale of the Vessel whilst it is in the Premises other than through the brokerage of Solent Refit, the Client shall:
15.2.1 be present or represented at all times when the Vessel is being viewed;
15.2.2 provide Solent Refit with details of any offer for sale on request by Solent Refit; and
15.2.3 not display a notice of sale on the Vessel or within the Premises.
15.3 In the event of a sale of the Vessel otherwise than through Solent Refit the Client undertakes to pay, or to ensure that any agent involved in the sale will pay, to Solent Refit a commission of 1% of the gross selling price.
16.1 No exercise or failure to exercise or delay in exercising any of Solent Refit’s rights, powers or remedies shall be deemed to be a waiver by Solent Refit of that or any other right power or remedy.
16.2 The rights granted in this agreement are personal to the Client and the Client may not assign its rights or obligations under this agreement.
16.3 Nothing in this agreement creates the relationship of landlord and tenant between the Client and Solent Refit.
16.4 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Client and Solent Refit, constitute either of them the agent of the other or authorise either of them to make or enter into any commitments for or on behalf of the other.
16.5.1 If any provision of this agreement 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 shall be deemed deleted. Any modification to or deletion of a provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
16.5.2 Without prejudice to clause 16.5.1, if any provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.6 The rights and remedies provided in this agreement are in addition to, and not exclusive of, any rights and remedies provided by law.
16.7.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.7.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.8.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Solent Refit may introduce new terms and conditions of business on the grounds of legal requirement or for the safety or security or management of the Premises and may amend such terms and conditions from time to time as considered appropriate. All such provisions and any amendments shall become effective and shall form part of these terms of business on being displayed on the public notice board or other prominent place in the Premises or on the Solent Refit website.
16.8.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
16.9 A person who is not a party to this agreement may not enforce any of its terms under the Contracts (Right of Third Parties) Act 1999 or otherwise.
17. DATA PROTECTION
The Client acknowledges and agrees that details of the Client's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Solent Refit in connection with the Services.
18.1 All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage pre-paid). Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this clause):
18.1.1 to Solent Refit to Solent Refit Limited, Unit 4, Hythe Marine Park, Shore Road, Hythe, Southampton, SO45 6HE, fax number: ; email:;
18.1.2 to the Client at the address, fax number and email specified by the Client by notice in writing to Solent Refit and in the absence of any such address to the Vessel.
18.2 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19. GOVERNING LAW AND JURISDICTION
19.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the
laws of England and Wales.
19.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Solent Refit Limited, Company Registration Number: 07156497 Registered in England and Wales Registered Office: Unit 4, Hythe Marine Park, Shore Road, Hythe, Southampton, SO45 6HE