TERMS & CONDITIONS OF BUSINESS
A. We, RK Marine Limited (Company No. 02226134) (“we”, “us”, “our”) consider the terms and conditions set out in this document (“Terms”), your order for the goods and services (the “Order”) and our estimate / quote (as applicable) to constitute the entire agreement between you and us for the supply of goods (the “Goods”) and/or the provision of our services (the “Services”) and as are set out in detail in the Order.
B. If you enter into a contract with us as a consumer, you may have statutory rights in addition to these Terms. We consider a consumer to be someone who is acting for a purpose which is wholly or mainly outside that individual’s trade, business, craft or profession (“Consumer”). If you contract with us as a Consumer these Terms will not limit your statutory rights.
C. Please check that you agree with these Terms and that the details of the Goods and/or Services on your Order are complete and accurate before a Contract is formed between us accordance with clause 1. Once the Order is accepted by us, you will be bound by these Terms.
D. You must provide us, in sufficient time, with any information and instructions relating to the Goods or Services that is necessary to enable us to provide the Goods or Services in accordance with these Terms. If you do not, or if you provide us with incomplete or inaccurate information or instructions, we may cancel the Order by giving you written notice, or we may make an additional charge of a reasonable sum to cover any extra work that is required.
1.1. The Order, whether made in writing or verbally, is an offer by you to enter into a binding contract with us. We are free to accept or decline your offer at our absolute discretion, such acceptance or declinature may be in writing or made verbally by us.
1.2. A contract will only be formed and these Terms become binding our issue to you of a written acceptance of your Order or our notification to you that we are able to provide the Goods or Services as described in your Order, whichever earliest (the “Contract”).
1.3. Any subsequent clarification or amendment to your Order will constitute a counter offer, your acceptance of which shall from a new Order which we are free to accept or decline at our discretion alone in writing or verbally. At our discretion we may also accept an amendment to your Order once the Contract has been formed.
1.4. Only statements which are made in writing by our authorised employees and agents will be considered binding upon us.
2.1. In providing the Goods and/or Services we shall not become liable to you, 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 the contract. The following types of loss are wholly excluded:
2.1.1. Loss of profits;
2.1.2. Loss of sales or business;
2.1.3. Loss of agreements or contracts;
2.1.4. Loss of anticipated savings;
2.1.5. Loss of use or corruption of data or information;
2.1.6. Loss of or damage to goodwill; and
2.1.7. Indirect or consequential loss.
2.2. Our total liability to you for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums payable by you for the Goods and/or Services.
2.3. Nothing in the Contract limits any liability which cannot legally be limited, including (but not limited to) liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation and breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
2.4. We have provided you with commitments as to how we will carry out any Services at clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
2.5. Unless you notify us that you intend to make a claim in respect of any event occurring or arising within the Notice Period, we will have no liability for that event. The notice period will start on the day that you became, or ought reasonably to have become, aware of the event occurring and shall expire 7 days from that date (Notice Period). The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
2.6. If you are a Consumer and we break the terms of our Contract with you, we will remain responsible to you for foreseeable loss and damage caused by us in providing the Goods or Services. We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is obvious that it will happen, or at the time the Contract was made both we and you knew it might happen, for example, if you discussed it with us beforehand.
2.7. If you are a Consumer and we are providing Services to you, we will make good any damage to your property caused by us while doing so. However, we are not responsible for the cost of repairing any pre-existing faults or damage to your property that we discover while providing the Services.
2.8. Under no circumstances are we liable for business losses. If we contract with you as a Consumer, we supply the Goods or Services for domestic and private use only and have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity howsoever arising.
3. PRICES AND ESTIMATES
3.1. The Price agreed with you for any Services shall be based on our time and materials expended. Prices for Goods provided will usually be set in accordance with our published price list. Quotations, estimates or indication of prices given by us or our employees or agents (whether in writing or orally) are estimates only and we reserve the right to alter our prices and charges for Goods and/or Services at any time.
3.2. Any price for Goods and/or Services identified in our Contract with you has been provided on the basis that you have provided us with accurate information and instructions as the nature and extent of the Goods and/or Services required. In the event that you;
3.2.1. fail to provide such information to us; or
3.2.2. provide us with incomplete, incorrect or inaccurate information or instructions; or
3.2.3. upon Our examination of the vessel, additional repairs or work outside the Order are considered by us to be necessary to fulfil our Contract with you;
then we may make an additional charge of a reasonable sum to cover any extra goods, services or works which may be required. If you are a Consumer and we cannot agree and additional charge with you, we may cancel our Contract with you by giving immediate written notice.
3.3. We will inform you of any proposed increase in our estimated prices prior to incurring any additional costs above the price identified in our Contract with you. In those circumstances your liability to pay us for any Services or Goods already provided or supplied (or to be supplied) shall remain unaffected.
4.1. We will take reasonable steps to meet the delivery date set out in the Contract (or as otherwise agreed with you in writing). Delivery dates are approximate only and the time of delivery is not of the essence.
4.2. If you are a Consumer and your Contract is for the supply of Goods alone, delivery will be arranged as soon as reasonably possible and in any event, within 30 days after the day on which we receive the Goods into our premises. If you are a Consumer and your Contract is for Services, we will begin the Services on the date set out in the Order or as agreed with you in writing. An estimated completion date for the Services will be provided to you.
4.3. Delivery is completed on the unloading the Goods at the delivery location specified by us. You must collect Goods from the delivery location within 5 business days of our notification to you that they are ready for collection.
4.4. Where we believe delivery is likely to be delayed as a result of an event outside of our reasonable control, we will make you aware of any delay and will attempt to arrange a new delivery date with you.
4.5. If you fail to take delivery of Goods within 14 days of the date which we notify you that the Goods are ready for collection, then, except where such a delay is caused by our failure to comply with these Terms or by an event beyond your reasonable control, we may elect to store the Goods until collection takes place and may charge you a reasonable sum to cover our expenses so incurred.
4.6. Should you fail to collect the Goods within 14 days of notification that they are ready to collect, we may resell or otherwise dispose of part or all of the Goods and, after deducting our reasonable storage and selling costs, account to you for any excess or charge you an additional sum for any shortfall incurred.
4.7. If there is any problem with the delivered Goods, including incorrectly delivered Goods, faulty Goods, damaged Goods or short delivery of Goods, then we must be notified by email within 5 days of your receipt or collection of the Goods.
5.1. We shall invoice you for any Goods and/or Services at any time after they have been delivered or provided to you. Unless otherwise agreed by us in writing, all invoices shall be payable by you immediately on the invoice date. Our bank account details are specified on our invoice(s).
5.2. If you do not make any payment due to us by the due date for payment, we may charge interest to you on any overdue amount at the rate of 8% per annum above the base lending rate of Natwest Bank from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. Interest shall be compounded on a monthly basis. You must pay us interest together with the overdue amount.
5.3. We have the right to exercise a lien over any property belonging to you (including any vessel, its keys, its gear and equipment in respect of which we have provided Services) pending payment in full of all sums due to us. During any such period of retention we reserve the right to charge you for any reasonable costs incurred in storage and insurance (including hard standing or berthing of a vessel) at commercial rates usually obtainable by us.
6. TITLE AND RISK
6.1. Title to the Goods will only pass to you when we receive payment in full of all sums due for the Goods and Services (including delivery charges) and for any other goods or services that we have previously supplied to you and in respect of which payment has become due.
6.2. Risk in the Goods shall pass to you on your collection of the Goods or our delivery of the Goods into your control.
6.3. Until title to the Goods has passed to you, you shall:
6.3.1. hold the Goods on a fiduciary basis as our bailee;
6.3.2. store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
6.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5. give us such information relating to the Goods as we may require from time to time,
6.3.6. but you may resell or use the Goods in the ordinary course of your business.
6.4. Where you are a business, if before title to the Goods passes to you, you become subject to an event of insolvency or we reasonably believe that any such event is about to happen and we notify you accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Goods and, if you fail to do so promptly, we may enter any of your premises or of any third party where the Goods are stored in order to recover them.
7.1. If you are a Consumer the guarantees offered in this clause are provided in addition to your statutory rights.
7.2. Unless we are prevented from doing so pursuant to clause 13.2, we will provide Services which:
7.2.1. conform in all material respects with their description;
7.2.2. are carried out with reasonable care and skill;
7.2.3. are fit for any purpose we say the Services are fit for, or for any purpose for which you use the Services and about which you have informed us;
7.2.4. are free from material defects in workmanship for 3 months from completion; and
7.2.5. comply with all applicable statutory and regulatory requirements for supplying the Services in the United Kingdom.
7.3. On delivery and for a period of 12 months from the date of delivery, any new Goods supplied shall:
7.3.1. conform in all material respects with the manufacturer’s specification;
7.3.2. be of satisfactory quality for the intended purpose;
7.3.3. be fit for any purpose we say the Goods are fit for;
7.3.4. be free from material defects in design, material and workmanship; and
7.3.5. comply with all applicable statutory and regulatory requirements in the UK.
7.4. Notification of any defect within Goods and/or Services provided by us must be received by us in writing within the relevant guarantee period set out in this clause. We will investigate the cause of any defect, and if we consider it our responsibility, will promptly remedy them or, at our option, employ other specialist contractors to do so at our cost.
7.5. Any remedial work carried out by you or any third party may invalidate the guarantees provided in this clause. In the event of a defect arising, if we are not notified by you in accordance with this clause and given the opportunity to inspect and agree the presence of a defect and the nature of any proposed remedial work, then we shall have no liability to you for any repair costs or any other losses suffered by you (consequential or otherwise) as a result of any defect.
7.6. New Volvo Penta goods and parts supplied and fitted by us are guaranteed by the manufacturer to be free of any manufacture or material defects for a period of 12 months from the date of supply, provided they are fully maintained by you in accordance with Volvo Penta’s criteria (the “Volvo Penta Warranty”).
7.7. Provided you notify us as to the presence of a material or manufacture defect in a Volvo Penta part within the Volvo Penta Warranty period and in the event we agree with you that a material or manufacture defect is present, we will repair or replace any such defective goods. No refunds shall be given. Any defective or faulty Volvo Penta goods replaced shall become our property and we shall have no further liability to you for any costs or losses incurred (consequential or otherwise) as a result of any defective Volvo Penta part and/or our repair or replacement of the same.
7.8. If you are a Consumer, the Volvo Penta Warranty is offered in addition to your statutory rights.
8.1. The Volvo Penta Warranty and the guarantees offered at clause 7 shall not be valid and no repair or replacement will be made:
8.1.1. if the defect is due to abuse, misuse or inexpert use or any other cause than material or manufacture defect.
8.1.2. if the cause of defect can not be conclusively proved.
8.1.3. in the case of fair wear and tear.
8.1.4. if the fitting instructions or any other instructions have not been accurately followed or observed.
8.1.5. if the invoice for the work carried out and/or Goods supplied has not been paid in full.
8.2. The Volvo Penta Warranty and the guarantees offered by us at clause 7 shall cease:
8.2.1. if during the relevant guarantee period the Goods supplied and/or fitted have been subject to unauthorised modification and/or repair.
8.2.2. if any of the maintenance obligations, obligations under the contract of sale or obligations of operation are not fulfilled.
9. ACCESS TO PREMISES
9.1. Subject to clause 9.2, no work shall be done on your vessel, gear, equipment or other property while on our premises without our prior consent, other than minor running repairs or minor maintenance of a routine nature carried out by you, your regular crew or members of your family and which does not cause nuisance or annoyance to any other customer or person residing in the vicinity or does not interfere with our schedule of work or involve access to prohibited areas.
9.2. Prior written consent under clause 9.1 will not be unreasonably withheld where:
9.2.1. the work is of a type for which we would normally employ a specialist sub-contractor;
9.2.2. the work is being carried out under warranty by the manufacturer and/or supplier of the vessel or any part of the equipment to which the warranty relates.
9.3. Notwithstanding the foregoing, during periods of work by us on your vessel, neither you nor your invitees shall have access to the vessel without our prior consent, which consent shall not be unreasonably withheld. In the event of such access being permitted, it will be at your own risk. We accept no responsibility for damage or loss of personal property brought onto our premises other than as a direct result of our direct negligent act.
9.4. If you do not allow us access to your vessel or other property to perform the Services as arranged (and if you do not have a good reason for this) we may charge you additional costs incurred by us as a result. If, despite our reasonable efforts, we are unable to contact you or re-arrange access to your property we may end the Contract with you and you will remain liable to pay for any Goods or Services previously provided to you.
10. RIGHT OF SALE
10.1. Where we accept vessels, gear, equipment or other Goods for repair, refit, maintenance or storage we do so subject to the provisions of the Torts (Interference with Goods) Act 1977. The Act confers a Right of Sale on us in circumstances where you fail to collect or accept re-delivery of the Goods (including a vessel and/or any other property) or where we have otherwise become a bailee (voluntarily or otherwise) of any property owned by you. Such a sale will not take place until we have given notice to you in accordance with the Act.
10.2. For the purpose of the 1977 Act it is recorded that:
10.2.1. Goods for repair or other treatment are accepted by us on the basis that you are the owner of the Goods or the owner’s authorised agent and that you will take delivery or arrange collection when the repair or treatment has been carried out;
10.2.2. our obligation as custodian of Goods accepted for storage ends on our notice to you of termination of that obligation;
10.2.3. the place for delivery and collection of Goods shall be at our premises unless agreed otherwise.
10.3. In certain other circumstances we may be entitled to have vessels or Goods sold through the Court for non-payment of invoices.
11. CANCELLATION BY CONSUMERS
11.1. Terms in this Clause 11 are applicable to Consumers alone.
11.2. If you are a consumer, you may end the Contract if;
11.2.1. we have told you about an upcoming change to the Goods or Services or these Terms which you do not agree to;
11.2.2. we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed;
11.2.3. there is a risk that supply of the Goods or Service may be significantly delayed because of events outside our control;
11.2.4. you have a legal right to end the Contract if we have breached these Terms;
in which case the Contract will end immediately and we will refund you in full for any Goods or Services which have not yet been provided to you.
11.3. You may also end the Contract if any new Goods supplied to you are faulty, are not fit for purpose or have been mis-described to you, in which case your statutory rights shall apply.
11.4. If we have not met with you personally at our business premises, you may also cancel your Contract by telling us you have changed your mind. If you change your mind you must tell us within 14 days of the delivery of the Goods to you or our confirmation of your Order for Services.
11.5. If your Contract is for Services, you cannot change your mind once we have carried out the Services and you must pay us for Services provided up until the time you tell us you have changed your mind.
11.6. You will not be entitled to cancel your Contract as a result of a change of mind if Goods or Services have been provided to you following your request for urgent repairs or maintenance.
11.7. If you end the Contract for any reason after Goods have been received by you, you must either return the Goods to us or allow us to collect them from you. If you are exercising your right to change your mind you must send us the Goods within 14 days of telling us that you wish to end the Contract.
11.8. In the event you cancel your Contract as a result of a change of mind, we will refund you the price you paid for the Goods or any Services not yet proved to you (including any delivery costs) by the same method you used for payment. However, we may make deductions from any refund due to you as described below.
11.8.1. We may reduce your refund (excluding delivery costs) to reflect any reduction in the value of the Goods caused by your handling or use of the Goods in a way which would not be permitted in a shop prior to sale.
11.8.2. Where we have provided a Service, we may deduct an amount for the supply of the Service for the period which it was supplied, ending with the time when you cancel your Contract. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the Contract. For the avoidance of doubt, a Service includes but is not limited to the provision of advice to you
11.9. If you are responsible for the costs of return and we are collecting the Goods from you, we will charge you the direct cost of collection at usually obtainable commercial rates.
12.1. Without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect and by giving written notice, if:
12.1.1. you commit a material breach of any term of the Contract which breach is irremediable or if you fail to remedy that breach within a period of 14 days after being notified in writing to do so;
12.1.2. if a business, you take any step or action in connection with entering administration, provisional liquidation or enter any arrangement with your creditors (other than a solvent restructuring), being wound up (whether voluntarily or otherwise) or having a receiver appointed to any of your assets or ceasing to carry on business;
12.1.3. if you suspend (or threaten to suspend) or cease or threatens to cease to carry on all or a substantial part of your business; or
12.1.4. your financial position deteriorates to such an extent that, in our opinion, your capability to adequately fulfil your obligations under the Contract have been placed in jeopardy;
12.1.5. you fail to pay any amount due under the Contract on the due date for payment.
12.2. On termination of the Contract for whatever reason:
12.2.1. you shall immediately pay to us all of our outstanding unpaid invoices which have fallen due and are payable under these Terms (together with interest) and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately by you, on receipt;
12.2.2. any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect; and,
12.2.3. termination of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.1. SUB-CONTRACTING You may not transfer any of your rights or obligations under the Contract or these Terms to another person without our prior written consent (which will not be unreasonably withheld). We can transfer all or any of our rights and obligations under these Terms to another organisation, but this will not affect your rights under these Terms.
13.2. FORCE MAJEURE We will not be liable for any loss or consequential liability or damage sustained by you by reason of act of nature, war, terrorist activity, civil unrest, fire, strike, lock-out, government control or regulation including any change in regulation or lack of regulation due to the UK’s withdrawal from the European Union, accident, breakdown, or any other circumstances beyond our reasonable control.
13.3. RIGHTS OF THIRD PARTIES A person who is not party to these Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
13.4. NOTICES all notices required to be sent by you to us must be sent to RK Marine at email@example.com. We may give notice to you at either the e-mail or postal address you provide to us in the order. Notice will be deemed received and properly served 24 hours after an e-mail is sent (if in business hours) or three days after the date of posting of any letter within the UK. If you are a Consumer and wish to cancel your Contract with us (including if you have changed your mind) then you may also contact us via any of the details given on our website.
13.5. GOVERNING LAW & JURISDICTION The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms, the Contract or its subject matter or formation.
13.6. SEVERANCE If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this agreement is deemed deleted under clause 13.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14. ENTIRE AGREEMENT
The Contract constitutes the entire agreement between us and you and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us (whether written or oral) relating to its subject matter. By entering into the Contract with us, you confirm you do not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. If you are contracting with us a Consumer this clause shall not limit your statutory rights and does not exclude statements we may have made to you regarding the nature of the Goods and Services which we may supply to you. We do however intend to rely on these Terms and your Order. If you should require any changes to your Contract with us please ensure you ask for these to be confirmed in writing as this will help avoid any confusion about what has been agreed between you and Us.