Mooring Agreement & Terms of Business

Hollowshore House, Hollowshore, Faversham, Kent, ME13 7TU

Telephone 01795 483076

email hollowshore@gmail.co.uk

www.hollowshoremoorings.co.uk

 

THESE TERMS OF BUSINESS APPLY TO ALL CONTRACTS FOR WORK AND FACILITIES OR GOODS UNDERTAKEN ON OR AFTER 1^ST JANUARY 2018.

1. INTERPRETATION

1.1 In these Terms unless the context requires otherwise:

HSM means Hollowshore Moorings  and assigns any of its employees, agents or other persons authorised by HSM  to act on its behalf.

BOATYARD means the boatyard, moorings and all such other water space and land associated with the boatyard and within HSM’s  control.

Owner means the person(s) or entity named as the Owner in these Terms and includes an employee of the Owner, authorised agent or person in charge of the Vessel with the Owner(s) permission or any other person with a right in the vessel.

Vessel means the vessel named in these Terms (or one that is substituted for it with HSM’s prior written consent) and includes its gear or equipment or other goods (whether belonging to the Owner or not).

 

2. OWNERS’ OBLIGATIONS

2.1  The Owner warrants that he/she is either the lawful owner, or the authorised agent of the lawful owner of the Vessel and any other party who is or may become interested in the Vessel. The owner warrants that he accepts these Terms not only for himself but also as authorised agent for and on behalf of the lawful owner of the Vessel and any other person who is or may become interested in the Vessel.

2.2  The Owner must provide to HSM in writing, details of the Owner’s current residential address. This address must be a different address to the address of the Boatyard. The Owner shall be obliged to produce evidence to HSM  of such home address within seven days of a request to do so.

2.3  The Owner must notify HSM in writing of the details of any change of names of the Vessel or change of address or telephone or email address of the Owner.

2.4  The Owner may not use the Boatyard postal address for any reason whatsoever. All personal mail should be directed to the Owner’s home address. If HSM  receives any mail it will be returned to sender. Owner’s may make prior arrangements with HSM  for the purposes of receiving deliveries where it is reasonable and practical for them to arrive directly to the Boatyard, subject to the express permission from HSM  at the discretion of HSM  

 

3. PARKING, BERTHS AND BOATYARD.

3.1 Owners are required to park their car and boat trailers in such a position and in such manner as shall, from time to time, be directed by HSM .  Owners are not permitted to park their cars at HSM    for a continuous period of three weeks or more. HSM  are authorised without notice to move any car or trailer at the risk of the Owner, obtaining forcible entry into the car if necessary for such purpose, without being liable  for any damage thereby occasioned. HSM  will take all reasonable steps to contact the Owners prior to attempting forcible entry. All cars parked by the Owners at the Boatyard must be suitable taxed, MOT’d and insured for use on the roads.

3.2  The car park is intended for cars belonging to Owners and their guests only; boat trailers may be parked for short periods as agreed by HSM  from time to time, and in a location agreed by HSM .No other boats, vehicles, motor homes, caravans, tents, equipment, tools or sundry items may be parked, stored or used in the car park or elsewhere on the premises under any circumstances unless prior written permission is obtained from HSM .

3.3  Berths shall not be loaned, transferred or used by any other Vessel whatsoever and any berth shall be occupied by the Vessel in whose name it is booked.

3.4   Nothing in these Terms shall entitle an Owner to the exclusive use of a particular berth.

3.5   No part of the Boatyard or Vessels moored thereto shall be used by the Owners or any other persons for any use other than private leisure use, any commercial purpose whatsoever including hiring, embarkation or other charter parties, sale or demonstration of craft is strictly prohibited.

3.6   No permanent residential use of any Vessels is permitted on the Moorings.

3.7  All property belonging to any Owner or Vessel must be stored within the confines of the Vessel and may not be stored anywhere on the premises.

3.8  Owners may not fix any item to the quay headings or pontoons, including fenders and rubbing strakes, TV aerials or satellite dishes, or place any carpets/mats or potted plants thereon. Where an Owner is in breach of this clause, HSM  may:

3.9.1  Charge the Owner a fee for the removal of such item and

3.9.2  Where damage is caused to the Jetty, pontoons or any of its property, the Owner will be liable for any time and materials expended to rectify said damage.

3.9.3  Owners are required to stow within the confines of their Vessel any anchors which are usually mounted on the bow of their Vessel while the Vessel is moored on its berth.

3.9.4  Vessels such as sailing boats and yachts may not be left with their mast lowered. In the event that a mast is required to be lowered for an extended period of time Owners are required to remove them from the Vessel and remove from the Boatyard unless suitable arrangements have been made with HSM. Storage of such items may incur additional charges.

3.9.5  Inflatable dinghies are required to be stowed on or in a Vessel and not on the mooring or in the property whilst not visiting the boatyard.

3.9.6  Any item such as inflatable dinghies which are attached to a Vessel using davits or secured to the vessel such that the item is not within the declared length of the Vessel, shall be deemed to increase the Length Overall Actually Measured of the Vessel and be charged accordingly subject to current mooring fees.

3.9.7   Owners are required to remove or retract any davits where possible whilst visiting the Boatyard

3.9.8   Owners may not store tenders, small boats etc. their trailers and/or related property on the premises except without prior consent from HSM and only in such areas as defined by HSM  from time to time. HSM   reserves the right to apply storage charges to such items and refuse or withdraw permission for whatever reason.

 

4. VESSEL AND PROPERTY MOVEMENTS

4.1  HSM  reserves the right to move any Vessel, gear, equipment or other goods at any time for reasons of safety, security or good management of the business and premises.  HSM  will take all reasonable steps to contact Owners prior to any relocation of said property.

 

5. CHARGES AND PAYMENT

5.1  All Vessels moored at the Boatyard are subject to current mooring fees for services at the Boatyard as notified to all Owners from time to time. Mooring fee rates are based on either the length of berth to which a Vessel has be assigned or cost per unit of length whichever is the greater and charged at the rates shown on the attached schedule, with a minimum of 6.05 metres or 20 feet and rounded up to the nearest whole foot. In the absence of Length Overall Actually Measure mooring fees are calculated on supplied length plus 1 foot.

5.2  HSM  reserves the right to charge normal mooring fees when a Vessel is being repaired or overhauled, whether on its mooring or elsewhere on the property of if removed from the Boatyard for such repairs.

5.4  Unless otherwise agreed by HSM  the price of all work, goods and services carried out by HSM  to any Vessel shall become due immediately on invoice date.

5.5  Where an Owner delays in payment for more than 14 days the Owner will incur a late payment charge and each 14 day period thereafter

5.6  HSM  reserves the right to charge interest on the outstanding amount at 5% over Nat West Bank Plc base rate per month from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of overdue amount.

5.7  The Owner shall pay all amounts due under these Terms in full without any deduction, set off, counter claim against HSM

5.8   If the Owner becomes insolvent or any sums owed by the Owner on any invoice or account shall become overdue for payment then any credit terms shall be cancelled with immediate effect and all invoices and accounts shall become immediately due.

 

6. ESTIMATES

6.1  In the absence of express agreement to the contrary our price for work shall be based on time and materials expended and services provided.

6.2  When HSM shall exercise reasonable skill and judgement when giving an estimate or indication of price whether in writing or orally. Such estimates are subject always to the accuracy of information provided by the Owner and are usually based only a superficial examination and will not include the cost of any additional repairs or work found necessary to the Vessel and/or gear or equipment during the work nor the cost of any extensions to the work comprised in the estimate.

6.3  HSM  will inform the Owner promptly of any proposed increase in estimate prices and the reasons therefore and will only proceed with the work or supply with the approval of the Owner. The Owner shall remain responsible for the cost of labour and materials already supplied or remaining to be supplied which are not affected by the proposed increase in price.

 

7. LIABILITY

7.1  ALL PERSONS USING ANY PART OF THE BOATYARD PREMISES OR FACILITIES FOR WHATEVER PURPOSE AND WHETHER BY INVITATION OR OTHERWISE DO SO AT THEIR OWN RUSK UNLESS ANY INJURY OR DAMAGE TO PERSON OR PROPERTY SUSTAINED WITHIN THE BOATYARD PREMISES OR FACILITES WAS CAUSED BY OR RESULTED FROM HSM’S  NEGLIGENCE OR DELIBERATE ACT.

7.1.1  For the avoidance of doubt, HSM shall not be held responsible:

7.1.1.1  For any injury or damage to person or property sustained as a result of objects being in the water, or submerged in the bottom of the creek either fully or in part unless caused by or resulted from HSM’s negligence or deliberate act. HSM  take no responsibility for any historic activity on the premises prior to the establishment of HSM.

7.1.1.2  For any injury or damage to person or property sustained due to insufficient water levels, silt build up or volatile tidal movements.

7.2  HSM  shall not be liable for any loss or damage caused by any event or circumstance beyond our reasonable control (such as extreme weather conditions, the actions of third parties not employed by us or any defect in any part of an Owner’s or third party’s Vessel); this extends to loss or damage to vessels, gear, equipment, vehicles or other goods left with HSM  for repair or storage, and harm to persons entering its premises or using any of its facilities or equipment.

7.3  HSM  shall take all reasonable and proportionate steps having regard to the nature and scale of its business to maintain security at its premises and to maintain its facilities and equipment in reasonably good working order. Subject to this and in the absence of any negligence or other breach of duty, vessels, gear, equipment, vehicles or other goods are left with HSM the Owner’s own risk and the Owner should ensure that their own personal an property insurance covers such risks.

7.4  HSM shall not be under any duty to salvage or preserve a Vessel or other property from the consequences of

7.4.1  any defect in the Vessel or property concerned

7.4.2  an accident which has not been caused by HSM’s negligence or another breach of duty on HSM’s part;

7.4.3  adverse weather conditions;

Unless HSM  shall have been expressly engaged to do so by the Owner on commercial terms. However HSM reserve the right to do so in any appropriate circumstance, particularly where a risk is posed to the safety of people, property or the environment. Where HSM  do so, it shall be entitled to charge the customer concerned on a normal commercial basis.

7.5  Owners shall indemnify HSM against all losses or damaged claimed against HSM or its employees or agents caused by an Owner, their crew or their Vessels and while the vessel or other property is on the Boatyard property or is being worked on by HSM. The Owner shall be obliged to maintain adequate insurance, including third party liability cover for not less than £2,000,000 and, where appropriate, Employers’ Liability cover in respect of any employee to at least the statutory minimum. The Owner shall be obliged to produce evidence to HSM of any such insurance at the time of commencement to this agreement, every time such cover is renewed or within 7 days of a request to do so.

 

8. LIEN

8.1  HSM has a general lien to detain and hold onto the Vessel or any other property at any time whilst in or on the boatyard pending payment by the Owner any sums actually due at any time to HSM  from the Owner on any account whatsoever, whether relating to rental, storage,  permission, access, berthing charges, work done or otherwise. HSM shall be entitled to charge the Owner for storage and the provision of any on-going services at our normal daily rates until actual payment (or provision of security) by the Owner and removal of the Vessel or property from the Boatyard. The Owner shall at any time by entitled to remove the Vessel or other property upon providing to HSM  proper security, for example by a letter of guarantee from a Bank reasonably acceptable to HSM or lodgement of a cash deposit with a professional third party agent or with the British Marine Federation, sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for HSM’s prospective legal costs. The right does not affect the customer’s entitlement to withhold a proportionate part of the price in respect of alleged defects but where that amount is in dispute the customer shall be required to provide security for the full amount pending resolution of the dispute.

8.2  HSM shall be entitled to, on at least 28 days’ notice in writing to the Owner, to sell or dispose of or deal with the Vessel or any other property as agent for, and at the expense of, the Owner and apply the proceeds in or towards the payment of such sums. Any such sale shall be on the basis of a reasonable offer immediately available, which may or may not amount to as much as the Owner may believe the Vessel or any other property to be worth in any specialist market place. HSM  may or may not, in its absolute discretion, advertise the Vessel for sale.

8.3  HSM   shall, upon accounting to the Owner for any balance remaining after payment of any sum due to HSM and for the cost of sale and disposal and/or dealing (including any legal costs) be discharged of any liability whatsoever in respect of the Vessel.

8.4  In respect of Vessels which are sold or exchanged whilst currently holding a berth, either with or without a completed mooring agreement, the Owner shall be liable for the charge of yard commission of 1% + VAT of the gross sale figure. In the absence of confirmation of the gross sale figure the commission will be assessed on an average current valuation. This commission will be waived if the Purchaser continues the mooring on a new annual contract agreed with HSM  Three months’ notice of termination of contract will be applicable.

 

9. TERMINATION

9.1  HSM  shall have the right (without prejudice to any other rights in respect of breaches of these Terms by the Owner) to terminate the mooring agreement for any reason provided that it shall give the Owner not less than three months’ prior written notice.

9.2  HSM  shall have the right (without prejudice or any other rights in respect of breaches of these Terms by the Owner) to immediately terminate the mooring agreement in the event of any Owner

9.2.1  Failing to make any payment due to HSM  pursuant to these Terms;

9.2.2  Breaching these terms and, where the breach is capable remedy the Owner fails to remedy the breach within 14 days of HSM serving notice on the Owner specifying the breach.

9.2.3  Acting in manner HSM considers, in its absolute discretion, to be anti-social (including but not exclusively loud and excessive use of foul language).

9.2.4  Causing an irreconcilable disagreement between another berth holder.

9.2.5  Bringing HSM into disrepute as determined by HSM  in its absolute discretion.

Upon such termination, HSM may serve notice on the Owner requiring them to remove their Vessel within 14 days after receipt of notice. HSM  may, in its absolute discretion, view any entitlement by an Owner to a refund of any unexpired proportion of the payment pro-rated as forfeit. On failure to remove the Vessel at the expiration of the said 14 days HSM shall have the right to remove the Vessel from the mooring and charge the Owner with the cost of doing so. Similar provisions shall apply in respect of vehicles and trailers.

9.3  The Owner shall give not less than three whole calendar months’ prior written notice (or three months’ fees in lieu of notice) before withdrawal of a Vessel from the moorings for whatever reason.

9.4  Where an Owner provides notice in accordance with clause 9.3 above, and there exists any unexpired mooring fees after the notice period has been served or when the Vessel has been removed, HSM  shall view any entitlement by an Owner to a refund of any unexpired proportion of the payment pro-rated as forfeit.

9.5  Further to Clause 9.4 above, if an Owner decides to return to HSM within 1 year of the end of the notice period or from the point at which the vessel was removed, whichever is the sooner, HSM  in its absolute discretion may choose to apply any forfeited fees by way of a credit to the Owners first invoice. Where the amount of credit applied is greater than said invoice the balance will be held on account until such time as further invoices use up the credit. Any surplus credit relating to forfeited fees will not be refunded at any time.

9.6  Where an Owner provides notice in accordance with Clause 9.3 above, and there exists any unexpired hire after the notice period has been served or when the Vessel has been removed, HSM  shall view any entitlement by an Owner to the use of the berth as forfeit.

9.7  In the event of termination of the hiring of the berth by HSM  in accordance with Clause 9.1 above, HSM’s  liability shall be limited to a refund of the unexpired proportion of the payment pro-rated (disregarding any discount given) subject to a right of set-off in respect of any damage suffered by HSM

 

10. GUARANTEES

10.1  Advice on whether a customer is ‘a consumer’ or otherwise protected by some or all of the consumer protection legislation in force in the United Kingdom may be obtained from any local Trading Standards Office, the Citizens Advice Bureau, the Office of Fair Trading or any firm of Solicitors (who may charge). Online guidance may be obtained at the Government’s Consumer Gateway website at www.consumer.gov.uk

10.2  Where an Owner is also a consumer he has certain minimum statutory rights regarding to the return of defective goods and claims for losses. These rights are not affected by these Terms.

10.3  In addition to the statutory and other rights provided by English Law HSM guarantee our work for a period of 3 months from completion against all defects appearing during this 3 month period which must be promptly notified to HSM in writing at our trading address. The geographical area within which this guarantee will be honoured is restricted to Great Britain.

10.4  On notification by the Owner of such defects, HSM  will promptly remedy them or, at its option, employ other specialist contractors to do so. Any remedial work which is put in hand by the Owner other than through HSM  in accordance with these Terms may invalidate this guarantee in respect of such defects if HSM are not advised beforehand and given the opportunity to inspect and agree such work and its cost.

10.5  Where HSM  supplies goods or services to a partnership or company who is acting in the course of a business or a commercial operation (a ‘Business Customer’) then:

10.5.1  No article supplied by HSM to a Business Customer shall carry any express or implied term as to its quality or fitness for any particular purpose unless prior to the supply the Business Customer has sufficiently explained the purpose for which it is required and made it clear that he is relying on our skill and judgement.

10.5.2  No proprietary article specified by name, size or type by a Business Customer shall carry any such express or implied term but HSM or HWM  will assign to the Business Customer any rights it may have against the manufacturer or importer of that article.

10.5.3  HSM accept no liability to indemnify a Business Customer against any loss of profit or turnover which he or his customer or any other person may sustain in consequence of the failure of any faulty or unfit article supplied by them.

10.6  The time for completion of work is given in good faith but is not guaranteed. HSM  shall not be responsible for any delay in completion of the work or for the consequences of any such delay unless it arises from HSM wilful acts or omissions or from its negligence.

 

11. RIGHT OF SALE

11.1  Without prejudice to the right of sale within Clause 8, where HSM accept Vessel or other goods for repair, refit, maintenance or storage it does so subject to the provisions of the Torts (Interference with Goods) Acts 1977. This Act confers a Right of Sale on HSM or HWM  in circumstances where the Owner fails to collect or accept re-delivery of goods (which includes a Vessel and/or any other property). Such sale will not take place until HSM  have given notice to the Owner in accordance with the Act. For the purpose of the Act it is recorded that;

11.1.1  Goods for repair or other treatment are accepted by HSM on the basis that the Owner is the lawful owner of the Vessel or the owner’s authorised agent and that he will take delivery or arrange collection when the repair or treatment has been carried out;

11.1.2  HSM’s obligation as custodian of goods accepted for storage ends on its notice to the Owner of termination of that obligation;

11.1.3  The place for delivery and collection of goods shall be at HSM’s premises unless agreed otherwise. Advice regarding the Act and its effect may be obtained from any of the sources referred to in clause 11.1 above.

11.2  Maritime Law entitles HSM in certain other circumstances to bring action against a Vessel to recover a debt or damages. Such action may involve the arrest of the Vessel through the courts and its eventual sale by the court. The right of arrest and sale may continue to exist against a Vessel following the change of ownership. Sale of a Vessel may also occur through the ordinary enforcement of a judgement debt against the Owner of a Vessel or other property.

 

12. NO ASSIGNMENT

12.1  A mooring agreement or mooring fees from one Owner to another will result in the loss of deposits paid and may incur additional costs if the value of such items is not met by any deposits held.

 

13. THIRD PARTY RIGHTS

13.1  The parties do not intend that any term of these Terms shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any party that is not a party to it.

 

14. SUB-CONTRACTING

HSM may sub-contract all or part of the work entrusted to it by the customer, on terms that any such sub-contractor shall have the protection and benefit of all rights and conditions, and of all limitations and exclusions of liability, contained in these Terms. Where HSM exercises its right to sub-contract it shall remain responsible to the Owner for the performance of such sub-contractor.

 

15. NOTICES

15.1  Any notice or other communication to an Owner shall be sufficiently served if personally given to him or if sent by first class post or recorded delivery to the Owners’ last known address (as notified in accordance with Clause 2.2) or by email. Notices to HSM  should be sent by first class post to its principle correspondence address or trading address if different. Notice shall be deemed to have been received if delivered personally, when given to a HSM member of staff at the address; or if sent by pre-paid first-class post or recorded delivery, 48 hours after being sent; or if sent by email and subsequently acknowledged by HSM by return email.

 

16. AMENDMENTS

16.1  HSM reserve the right to amend, alter or update these Terms as it sees fit or on receipt of additional professional advice. HSM  will make every effort to notify all Owners in writing or by email of any changes and a copy of these Terms will be posted on our website at all times.

 

17. WAIVER

17.1  No failure or delay by HSM to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or any other right, power or remedy.

 

18. LAW AND JURISDICTION

18.1  Any contract or series of contracts made subject to the Terms shall be subject to and governed by English Law and any dispute arising under or in connection with them shall be submitted to the exclusive jurisdiction of the Courts of England and Wales.