1.1 When the following words with capital letters are used in these Terms, this is what they will mean:
1.1.1 “Calendar Days:” All days in a month, including weekends and holidays;
1.1.2 “Event Outside Our Control:” are defined in clause 13.2;
1.1.3 “Vessel:” the vessel that We are selling to you as set out in the Order;
1.1.4 “Order:” your order for the Vessel and/or Repair;
1.1.5 “Repair:” the repair that We are providing to you as set out in the Order;
1.1.6 “Terms:” the terms and conditions set out in this document; and
1.1.7 “We/Our/Us:” Martin Hargreaves trading as St Johns Boats.
1.2 When We use the words “writing” or “written” in these Terms, this will include e-mail unless We say otherwise.
2. OUR CONTRACT WITH YOU
2.1 These are the terms and conditions on which We supply a Vessel, or a Repair, or both a Vessel and a Repair, to you.
2.2 Please ensure that you read these Terms carefully, and check that the details on the Order and these Terms are complete and accurate, before you sign the Order. If you think that there is a mistake, please contact Us to discuss.
2.3 When you sign and submit the Order to Us, this does not mean We have accepted your order for the Vessel and/or Repair. Our acceptance of the Order will take place as described in clause 2.4. If We are unable to supply you with the Vessel and/or Repair, We will inform you of this and We will not process the Order.
2.4 These Terms will become binding on you and Us when We contact you to tell you that We are able to provide you with the Repair or the Vessel, at which point a contract will come into existence between you and Us.
2.5 Any timescales given for the construction of a Vessel or the completion of a Repair are estimates and not fixed timelines. Due to the specialist nature of the work that We carry out delays may occur. If a delay does occur We will keep you informed as to when completion of the work can be expected.
3. CHANGES TO ORDER OR TERMS
3.1 We may revise these Terms from time to time to reflect changes in relevant laws and regulatory requirements.
3.2 If We have to revise these Terms under clause 3.1, We will give you at least one month’s written notice of any changes to these Terms before they take effect.
3.3 If you wish to cancel an Order before it has been fulfilled, please see your right to do so in clause 14.
4. CUSTOM BUILT VESSELS
4.1 If We make the Vessel according to the specifications you provide Us Please make sure the specifications are correct and accurate. Unfortunately, We cannot accept the return of a custom built Vessel if the reason for the return is because you provided Us with incorrect measurements or specifications. However, this will not affect your legal rights as a consumer in relation to a custom built Vessel that is faulty or not as described. Advice about your legal rights is available at your local Citizen’s Advice Bureau or Trading Standards office.
4.2 If We design the Vessel for you, We will own the copyright, design right and all other intellectual property rights in the Vessel and any drafts, drawings or illustrations We make in connection with the Vessel for you.
5. DELIVERY OF VESSEL
5.1 Delivery of an Order shall be completed when the Vessel is collected from our Premises.
5.2 We will contact you when the Vessel is ready for collection. Upon receipt of confirmation that the Vessel is ready for collection you should make payment in accordance with clause 10 and collect the Vessel within 10 Calendar Days. Depending on your method of payment We may not release the Vessel to you until your payment has cleared. If the Vessel is not collected within 10 Calendar Days We reserve the right to charge a storage fee of £1 per meter of vessel length per day.
5.3 You own the Vessel once We have received payment in full.
6. IF THE VESSEL IS FAULTY
As a consumer, you have legal rights in relation to goods that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Terms will affect these legal rights.
7.1 We guarantee that on delivery and for a period of 12 months from delivery, the Repair and/or Vessel supplied shall be free from material defects. However, this guarantee does not apply in the circumstances described in clause 7.2.
7.2 This guarantee does not apply to any defect in the Repair of a Vessel supplied arising from:
7.2.1 fair wear and tear;
7.2.2 wilful damage, abnormal storage or working conditions, accident, negligence by you or by any third party;
7.2.3 if you fail to operate or use the Vessel with care and good seamanship; and
7.2.4 any alteration or repair by you or by a third party who is not one of Our authorised repairers.
7.3 The guarantee in this clause is in addition to, and does not affect, your legal rights in relation to the goods that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
8. PROVIDING REPAIRS
8.1 We will supply the Repair to you as set out in the Order.
8.2 We will make every effort to complete the Repair in accordance with any timescales that we have agreed. However, there may be delays if previously unknown defects are discovered during the Repair or due to an Event Outside Our Control. See clause 13 for Our responsibilities when an Event Outside Our Control happens.
9. IF THERE IS A PROBLEM WITH THE REPAIR
9.1 In the unlikely event that there is any defect with the Repair or the Vessel:
9.1.1 please contact Us and tell Us as soon as reasonably possible; and
9.1.2 please give Us a reasonable opportunity to repair or fix any defect.
9.2 As a consumer, you have legal rights in relation to a Repair not carried out with reasonable skill and care, or if the materials We use are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Terms will affect these legal rights.
10. PRICE AND PAYMENT
10.1 The price of the Repair / Vessel shall be based on the time and materials expended to complete the Repair or construct the Vessel.
10.2 If We have provided you with an estimate for a Repair or a Vessel and this estimate increases We will inform you promptly. Before continuing work We will seek your consent. Please note that due to the nature of Repair work We may not be aware of the full work required until parts of the vessel are removed.
10.3 Where We are selling a Vessel to you, you must make payment for the Vessel before delivery. We ask for an advance payment of 25% of the cost of the Vessel to allow Us to start work. A further payment of 25% of the cost of the Vessel will be required within 10 Calendar Days of Us informing you that the hull of the Vessel has been completed. Your rights to a refund on cancellation are set out in clause 14.
10.4 Where We are providing Repairs to you, We will ask you to make an advance payment of 25% of the price of the Repair. Your rights to a refund on cancellation are set out in clause 14. We will invoice you for the balance of the Repair on or any time after We have performed the Repair
10.5 If you do not make any payment due to Us within 10 Calendar Days of Us informing you the Vessel or Repair is complete, We may charge interest to you on the overdue amount at the rate of 3% a year above the base lending rate of Barclays Bank Plc 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. You must pay Us interest together with any overdue amount. We may also charge you a storage fee of £1 per meter of vessel length per day.
10.6 However, if you dispute an invoice in good faith and contact Us to let Us know promptly after you have received an invoice that you dispute it, clause 10.4 will not apply for the period of the dispute.
11. RIGHT OF SALE
11.1 Acceptance by Us of vessels for Repair or storage is subject to the provisions of the Torts interference with Goods Act 1977, which confers on Us as bailees a right of sale excisable in certain circumstance. Our right of sale shall be exercised if you fail to pay Us for work completed or if you fail to collect a vessel after being informed by Us that it is ready for collection. Such sale will not take place until We have given you notice in accordance with the Act. For the purposes of the Act it is hereby recorded that:
11.1.1 vessels for Repair or storage are accepted by Us on the terms that you will take delivery of the goods in accordance with Clause 5 of these terms when the Repair has been carried out;
11.1.2 our obligation as custodian of goods accepted for storage ends on our notice to the you of termination of that obligation; and
11.1.3 the place for delivery and collection of goods shall be at Our premises unless agreed otherwise.
12. OUR LIABILITY TO YOU
12.1 If We fail to comply with these Terms, We are responsible for loss or damage you suffer that is a foreseeable result of Our breach of the Terms or Our negligence, but We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of Our breach or if it was contemplated by you and Us at the time we entered into this contract.
12.2 We do seek to not exclude or limit in any way Our liability for:
12.2.1 death or personal injury caused by Our negligence or the negligence of Our employees, agents or subcontractors;
12.2.2 fraud or fraudulent misrepresentation;
12.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Repair Act 1982 (title and quiet possession);
12.2.4 breach of the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Repair Act 1982 (description, satisfactory quality, fitness for purpose and samples); or
12.2.5 defective products under the Consumer Protection Act 1987.
12.3 We shall not be liable for any loss or damage caused by any events or circumstances beyond Our reasonable control (such as extreme weather conditions, the actions of third parties not employed by Us or latent defects); this includes loss or damage to vessels, gear or equipment left with Us for Repair or storage, and harm to persons entering the premises or area of work and/or using facilities or equipment; you should ensure that your own personal and property insurance covers such risks.
12.4 Any vessel, gear or equipment is left with Us at your own risk. You should maintain adequate insurance which should also cover third party liability for at least £1,000,000.
13. EVENTS OUTSIDE OUR CONTROL
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under these Terms that is caused by an Event Outside Our Control.
13.2 An Event Outside Our Control means any act or event beyond Our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.
13.3 If an Event Outside Our Control takes place that affects the performance of Our obligations under these Terms:
13.3.1 We will contact you as soon as reasonably possible to notify you; and
13.3.2 Our obligations under these Terms will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects Our delivery of the Vessel to you, We will arrange a new delivery date with you after the Event Outside Our Control is over. Where the Event Outside Our Control affects Our performance of the Repair to you, We will restart the Repair as soon as reasonably possible after the Event Outside Our Control is over.
13.4 You may cancel the contract if an Event Outside Our Control takes place and you no longer wish Us to provide the Vessel and/or Repair. Please see your cancellation rights under clause 14. We will only cancel the contract if the Event Outside Our Control continues for longer than 8 weeks in accordance with Our cancellation rights in clause 14.
14. YOUR RIGHTS TO CANCEL AND APPLICABLE REFUND
14.1 Before We begin to provide the Repair or start work on the Vessel, you have the following rights to cancel an Order for a Vessel (other than custom built Vessels) and/or the Repair, including where you choose to cancel because We are affected by an Event Outside Our Control or We change these Terms under clause 3.1 to your material disadvantage:
14.1.1 within 5 Calendar Days of placing an Order by contacting Us. We will confirm your cancellation in writing to you;
14.1.2 if you cancel an Order under clause 14.1.1 and you have made any payment in advance for Repair that have not been provided to you, or a Vessel that has not been delivered to you, We will refund these amounts and any delivery charges to you;
14.1.3 however, if you cancel an Order for Repair under clause 14.1.1 and We have already started work on your Order by that time, you will pay Us any costs We reasonably incurred in starting to fulfil the Order, and this charge will be deducted from any refund that is due to you or, if no refund is due to you, invoiced to you. We will tell you what these costs are when you contact Us. However, where you have cancelled an Order because of Our failure to comply with these Terms (except where We have been affected by an Event Outside Our Control), you do not have to make any payment to Us.
14.2 Unfortunately, as custom built Vessels are made to your requirements, you will not be able to cancel your Order once made (but this will not affect your legal rights as a consumer in relation to custom built Vessels that are faulty or not as described).
15. OUR RIGHTS TO CANCEL AND APPLICABLE REFUND
15.1 We may have to cancel an Order before the Repair is complete or before the Vessel is delivered, due to an Event Outside Our Control or the unavailability of stock or key personnel or key materials without which We cannot provide the Repair or Vessel. If this happens:
15.1.1 We will promptly contact you to let you know; and
15.1.2 if you have made any payment in advance for Repair that have not been provided to you, or a Vessel that has not been delivered to you, We will refund these amounts to you.
15.2 We may cancel the contract for the Repair or Vessel at any time with immediate effect by giving you written notice if:
15.2.1 you do not pay Us when you are supposed to as set out in clause 10.4. This does not affect Our right to charge you interest under clause 10.4;
15.2.2 you do not pay Us when you are supposed to as set out in clause 10.3. This does not affect Our right to charge you interest under clause 10.3;
15.2.3 you do not pay Us when you are supposed to as set out in clause 10.5. This does not affect Our right to charge you interest under clause 10.5; or
15.2.4 you break the contract in any other material way and you do not correct or fix the situation within 10 Calendar Days of Us asking you to in writing.
16. INFORMATION ABOUT US AND HOW TO CONTACT US
16.1 We are a sole trader. We can be contacted at Porterhouse, 141 High Road, Layer-de-la-Haye, Colchester, CO2 0EB.
16.2 If you have any questions or if you have any complaints, please contact Us. You can contact Us by telephoning 01206 734 241 or by e-mailing Us at email@example.com.
16.3 If you wish to contact Us in writing, or if any clause in these Terms requires you to give Us notice in writing, you can send this to Us by e-mail, by hand, or by post to Martin Hargreaves at Porterhouse, 141 High Road, Layer-de-la-Haye, Colchester, CO2 0EB. We will confirm receipt of this by contacting you in writing. If We have to contact you or give you notice in writing, We will do so by e-mail, by hand, or by pre-paid post to the address you provide to Us in the Order.
17. HOW WE MAY USE YOUR PERSONAL INFORMATION
17.1 We will use the personal information you provide to Us to:
17.1.1 provide the Vessel and/or Repair; and
17.1.2 process your payment for such Vessel and/or Repair.
17.2 We will not give your personal data to any other third party.
18. VESSEL MOVEMENTS
18.1 We reserve the right to move any vessel, gear or equipment or other goods at Our discretion for reasons of safety or good management.
19. OTHER IMPORTANT TERMS
19.1 We may transfer Our rights and obligations under these Terms to another organisation, and We will always notify you in writing if this happens, but this will not affect your rights or Our obligations under these Terms.
19.2 This contract is between you and Us. No other person shall have any rights to enforce any of its terms.
19.3 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
19.4 If We fail to insist that you perform any of your obligations under these Terms, or if We do not enforce Our rights against you, or if We delay in doing so, that will not mean that We have waived Our rights against you and will not mean that you do not have to comply with those obligations. If We do waive a default by you, We will only do so in writing, and that will not mean that We will automatically waive any later default by you.
19.5 These Terms are governed by English law. You and Us both agree to submit to the non-exclusive jurisdiction of the English courts. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.
T’s and C’s