Definitions. In these Conditions the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between Macduff and the Customer for the performance of the Works in accordance with these Conditions.
Customer: the person for whom Macduff performs the Works.
Customer Supply Items: any goods supplied by the Customer or purchased by Macduff at the direction of the Customer for the performance of the Works.
Force Majeure Event: has the meaning given in Condition 9.
Goods: the goods, materials and any machinery and components supplied by Macduff in the performance of the Works and, for the avoidance of any doubt, excluding any Customer Supply Items.
Macduff: Macduff Shipyards Limited, a company registered in Scotland (Company No. SC063241) and having its registered office at The Harbour, Macduff, AB44 1QT.
Macduff's Materials: the materials, equipment, documents and other property of Macduff used in the performance of the Works, excluding the Goods.
Macduff's Personnel: the employees, agents, contractors and consultants of Macduff.
Order: the Customer's instructions (whether oral or written) to proceed with the Works.
Price: the aggregate amount payable by the Customer for the Works, comprising the charges for the services supplied by Macduff, the price of the Goods and ancillary costs.
Variation Proposal: written notification to the Customer in accordance with Condition 5 of any additional Works required to the Vessel and the required consequential amendments to the Contract.
Vessel: the Customer's vessel in respect of which Macduff shall carry out the Works.
Works: the repair and/or refit works to be carried out on the Vessel by Macduff, including the supply and installation of any Goods, as may be amended from time to time in accordance with these Conditions.
Construction. In these Conditions, the following rules apply:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors or permitted assigns.
A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes faxes and e-mails.
BASIS OF CONTRACT
These Conditions apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Customer to instruct Macduff to proceed with the Works in accordance with these Conditions.
The Order shall only be deemed to be accepted when Macduff issues an acceptance (whether oral or written) of the Order or, in the absence of such acceptance, upon Macduff commencing performance of the Works, at which point the Contract shall come into existence.
PERFORMANCE OF THE WORKS
Macduff shall perform the Works in accordance with the Order or as otherwise may be subsequently agreed between Macduff and the Customer in all material respects.
Macduff shall use all reasonable endeavours to meet any performance dates specified in the Order or as otherwise may be subsequently agreed between Macduff and the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Works.
Macduff shall have the right to make any changes to the Works which (i) are necessary to comply with any applicable law or safety requirements, or (ii) which are necessary in Macduff's professional judgment but do not materially affect the nature or quality of the Services.
CUSTOMER'S OBLIGATIONS
The Customer warrants to Macduff that:
it owns the Vessel and has the right to grant Macduff access to the Vessel and to authorise Macduff to perform the Works on the Vessel; and
prior to Macduff carrying out any survey of the Vessel it has provided to Macduff all information in its possession relating to the state, condition or performance of the Vessel which may be useful to Macduff in carrying out the survey of the Vessel and preparing its Estimate (as defined below), and that such information is accurate in all material respects; and
it has to be the extent required, and where advised by any relevant code, informed and obtained the approval of all relevant authorities of any modifications and alterations proposed to be made to the vessel by Macduff.
The Customer shall:
ensure that the Vessel is in a reasonably safe and tidy condition ready for Macduff to commence performance of the Works and which does not pose an unacceptable risk in Macduff's reasonable judgment to the health and safety of Macduff's Personnel;
deliver the Vessel to the Yard on the date specified by Macduff or if Macduff has agreed to perform the Works at a location other than the Yard, grant or procure access to Macduff and Macduff's Personnel to such place including office accommodation and other facilities as reasonably required by Macduff in order to perform the Works;
co-operate with Macduff in all matters relating to the Works;
provide Macduff with such information and materials as Macduff may reasonably require in order to perform the Works and ensure that such information is accurate in all material respects; and
obtain and maintain any necessary licences, permissions and consents which may be required before the date that Macduff commences the Works.
Without prejudice to any other rights or remedies it may have, whether under the Contract or otherwise, Macduff shall be entitled to suspend performance of the Works without liability to the Customer if the Customer is in breach of any of the warranties given in Condition 4.1 or any of its obligations in Condition 4.2 until such breach is remedied to the satisfaction of Macduff, acting reasonably- and the company shall indemnify Macduff from and against claim arising from such breach.
If Macduff is performing the Works at the Customer's premises, the Customer shall keep any of Macduff's Materials which are in the Customer's possession in safe custody at its own risk, keep them in good condition until returned to Macduff and not dispose of or use them other than in accordance with Macduff's written instructions or authorisation.
VARIATIONS TO THE WORKS
The Customer acknowledge and agrees that any scope of works outlined and any price quoted by Macduff to the Customer is based on Macduff's reasonable estimate of the goods and services required to be supplied by Macduff to carry out the Works (the "Estimate"), and is based on the information provided by the Customer and, if one is carried out prior to commencement of performance of the Works, Macduff's limited visual inspection of the Vessel. If, following commencement of the Works it becomes apparent in Macduff's reasonable judgment that additional Works over and above those contemplated in its Estimate are required to complete the repairs or refit to a satisfactory standard, Condition 5.2 shall apply.
Macduff shall as soon as reasonably practicable issue a Variation Proposal to the Customer setting out the necessary changes to the Contract, including any revisal to its estimate of price and date for completion of the Works, and the Customer shall promptly and in any event no later than 5 Business Days from the date of receipt of the Variation Proposal either:
confirm acceptance by signing and returning the Variation Proposal, in which case the Contract shall be deemed to have been amended; or
notify Macduff that it does not accept the Variation Proposal.
If the Customer does not accept the Variation Proposal the parties shall negotiate in good faith to agree the points of dispute. If agreement cannot be reached, either Party may terminate the Contract immediately by notice in writing, and the terms of Condition 10.3 shall apply.
PRICE AND PAYMENT
The Price shall include all sums payable in respect of VAT unless the Customer or the Vessel is zero rated for VAT or is otherwise exempt from payment of VAT.
The Customer acknowledges and agrees that any price quoted for the Works by Macduff prior to completion thereof is an estimate and is based on the Estimate (as may subsequently be amended), and on the prices quoted for Goods by the suppliers thereof, which may change.
Where a price has been quoted by Macduff prior to completion of the Works, Macduff shall use its reasonable endeavours to keep the Customer informed of any increase thereto.
In circumstances where Macduff is required to perform the Works at a place other than the Yard, Macduff shall be entitled (subject to the provision of reasonable evidence of such costs) to charge the Customer for any travel, accommodation and subsistence costs and expenses reasonably incurred by Macduff's Personnel in connection with the Works. Unless otherwise stated in the Order, the price of the Goods and/or Services is exclusive of the costs and charges of packaging, insurance and transport of the Goods and the costs of travel, subsistence and materials properly and reasonably incurred in the provision of the Services, which shall be invoiced to the Customer.
Macduff may invoice the Customer for the Works on or at any time after completion of the Works, unless any other schedule of payments has been agreed.
The Customer shall pay each invoice in full and in cleared funds within 30 days of the date of the invoice. Time for payment shall be of the essence of the Contract.
Without limiting any other right or remedy of Macduff, if the Customer fails to make any payment due to Macduff under the Contract by the due date for payment (due date), then Macduff:
shall be entitled to charge interest on the overdue amount at the rate of 8% per annum above The Royal Bank of Scotland plc’s base rate from time to time. Such 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. The Customer shall pay the interest together with the overdue amount; and
may either exercise a lien over the Vessel until payment of all sums due under the Contract is received or at Macduff's sole discretion sell the Vessel and any other items belonging to the Customer which are in Macduff's possession and any items purchased by Macduff for the performance of the Works at the best price reasonably obtainable and apply the proceeds of sale in discharge of all sums owed to Macduff under the Contract plus al costs and expenses of the sale incurred by Macduff, including interest thereon.
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Macduff in order to justify withholding payment of any such amount in whole or in part. Macduff may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Macduff to the Customer.
WARRANTY
Except as expressly provided in the Contract no warranty, condition, undertaking or term, express or implies, statutory or otherwise as to the condition, quality, specification or performance of the Goods or the services supplied by Macduff is given or assumed by Macduff, and all such warranties, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law.
Macduff warrants to the Customer that it will carry out the Works with reasonable skill and care.
Macduff shall not be liable for a breach of the warranty in Condition 7.2 unless the Customer gives written notice to Macduff if the nature of the alleged defect setting it out in reasonable details within 6 months from and including the date of delivery of the Vessel back to the Customer following completion of the Works.
If Macduff is in breach of the warranty set out in Condition 7.2, subject to Condition 7.3 and Condition 7.8, Macduff shall remedy the defect at the Yard at its own cost and expense, and a fresh warranty shall apply to such remedial works on the same terms of this Condition 7.
Notwithstanding the terms of Condition 7.4, Macduff may at its sole discretion:
agree to carry out the remedial work at such other place where the Vessel is located, provided always that the Customer shall be liable for any additional costs and expenses incurred by Macduff as a result of carrying out the works at such place; or
agree that the remedial works be carried out by a third party at Macduff's cost, provided always that the Customer provides Macduff with a written quote in advance of such works being commenced; (ii) Macduff's liability for costs and expenses shall not exceed the amount of Macduff's liability had Macduff carried out the remedial works at the Yard.
Subject to Conditions 7.7 and 7.8, and defect in any Goods shall be subject to the manufacturer's warranty for the Goods in question.
If the Customer alleges any defect in any Goods it shall promptly notify Macduff of the details of the alleged defect in writing, setting out reasonable detail. Provide that notification is received within the manufacturer's warranty period for the Goods in question, Macduff shall inspect the Goods as soon as reasonably practicable (such inspection to be at the Customer's cost) and if following such inspection Macduff considers (acting reasonably) there is a valid warranty claim against the manufacturer of the Goods, Macduff shall use all reasonable endeavours to pursue such a claim on the Customer's behalf.
Macduff shall not be liable for a breach of warranty in Condition 7.2 nor shall it have any obligations under Conditions 7.6 or 7.7 if:
the Customer makes any further use of the Vessel and/or Goods after giving notice of any defect; or
the defect arises dues to the Customer's failure to follow the instructions of Macduff or the manufacturer of the Goods as to use of the Goods or due to the Customer's failure to take reasonable care of the Vessel and/or Goods; or
the Customer or any third party on the Customer's behalf alters or repairs the Goods and/or part of the Vessel (or attempts to do so) which was subject to the Works without the written consent of Macduff; or
any sums due to Macduff under the Contract remain outstanding.
Macduff gives no warranty and accepts no liability for the quality or fitness for purpose of any Customer Supply Items or for any damage caused to the Vessel by such items, and the Customer irrevocably agrees that it is the Customer's sole responsibility to resolve any claim or complaint with regard to Customer Supply Items directly with their manufacturer, and Macduff shall have no liability or obligation in respect thereof.
LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude Macduff's liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation; or
any matter in respect of which it would be unlawful for Macduff to exclude or restrict liability.
Subject to Condition 8.1:
Macduff shall under no circumstances whatever be liable to the Customer, whether in contract, delict, tort (including negligence, breach of statutory or other duty), or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
Macduff's total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, delict, tort (including negligence, breach of statutory or other duty), or otherwise, shall in no circumstances exceed the Price; and
any claim in respect of the provision of the Services by Macduff to the Customer must be brought by the Customer within 6 months from the date of completion of the Works. Macduff shall not to be liable to the Customer in respect of any claims brought by the Customer outside such period.
FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
TERMINATION
If the Customer becomes subject to any of the events listed in Condition 10.2, or Macduff reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Macduff, Macduff may cancel or suspend all further performance of the Works and deliveries of Goods under the Contract or under any other contract between the Customer and Macduff without incurring any liability to the Customer.
For the purposes of Condition 10.1, the relevant events are:
the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay his debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) is subject to any of the foregoing or has any partner to whom any of the foregoing apply;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(being an individual) the Customer is the subject of a bankruptcy petition or order;
a creditor or encumbrancer of the Customer attaches or takes possession of, or a diligence, distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 10.2(a) to Condition 10.2(h) (inclusive);
the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
the Customer's financial position deteriorates to such an extent that in Macduff's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(being an individual) the Customer 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.
Where the Contract is terminated by Macduff or, pursuant to Condition 5.3, by the Customer, all outstanding sums in respect of the Works performed and Goods delivered for the Customer shall become immediately due. Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, and the Customer shall promptly return to Macduff any of Macduff's Materials which are in the Customer's possession. If the Customer fails to do so, Macduff or its agents may enter the Customer's premises and take possession of them or if they are at a third party's premises where Macduff is required to carry out the Works at the direction of the Customer, the Customer shall procure access to such place to enable Macduff to recover such items.
GENERAL
Assignation and subcontracting.
Neither party may assign or otherwise transfer the Contract in whole or in part without the prior written consent of the other.
Severance.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Waiver.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
No Partnership.
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Third party rights.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Variation.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing.
Governing law and jurisdiction.
The Contract, 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, Scottish law, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Scotland.
