Terms and conditions of contract for the sale and supply of new vessels, used vessels, new engines and ancillary goods.
1.1. The following definitions are used in these terms and conditions of contract and have the following meanings:
Company: Grosvenor Yachts Limited and any subsidiary or associated business
Contract: any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these terms and conditions
Contract Price: the total price payable to the Company by the Customer for the Goods inclusive of tax and duty
Customer: the person, firm or company named on the order document, or his authorised agent
Business Customer: a Customer whose transactions with the Company are conducted in the course of or for the purpose of the Customer’s business
Goods: the vessel, engine and/or any goods agreed in the Contract to be supplied to the Customer by the Company or part exchanged by the Customer to the Company (including any component or constituent part of them)
Conditions: means the standard terms and conditions of sale set out in this document and, unless the context otherwise requires, includes any special terms and conditions agreed in writing between the Customer and the Company
Premises: any of the Company’s premises.
2.1. Subject to any variation under clause 17.1 below, the Contract, including the provision of any advice, shall be on these Conditions to the exclusion of all other terms and conditions (including any terms and / or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No other agreement, representation, promise, undertaking or understanding of any kind, unless expressly confirmed in writing by the Company shall add to, vary or waive any of the Conditions.
3.1. A binding Contract for any sale by the Company shall come into being only on the Company’s confirmed acceptance of a Customer’s order. Unless otherwise indicated any quotation given by the Company shall be regarded as an invitation to treat and not as an offer capable of acceptance.
3.2. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not in writing and set out in the Contract. Nothing in this clause 3.2 shall limit the Company’s liability for fraudulent misrepresentation.
3.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
4. Contract Price
4.1. The price of the Goods shall be the Company’s quoted price, or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list, current at the date of acceptance of the order. Unless expressly stated in writing otherwise all prices quoted are valid for 30 days from the date of issue, or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
4.2. The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in costs to the Customer which is due to any factor beyond the control of the Company, any changes in delivery dates, quantities or specifications for the Goods which is requested by the Customer or any delay caused by instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.2.1 In the absence of written agreement to the contrary 4.2 expressly includes but is not exclusive to an adverse change in currency exchange rate and/or any trade tariff payments due from the date of Order if the Goods are purchased by the Company from outside the UK.
4.3. Except as otherwise stated under the terms of any quotation or in any price list of the Company, and unless otherwise agreed in writing between the Customer and the Company, all prices for the Goods are given by the Company on a manufacturer’s ex-works basis, and where the Company agrees to deliver the Goods the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
4.4. Where the Contract Price includes an estimate of labour or materials charges the Company reserves the right to increase the Contract Price to take account of the actual expenditure of labour and materials incurred by the Company in performance of the Contract. The Company will inform the Customer promptly of any increase in estimated prices.
4.5. Unless otherwise agreed by the Company in writing, the price for the Goods shall be exclusive of any value added tax and all costs or charges in relating to packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when the Customer is due to pay for the Goods.
5. Time for Payment
5.1. Payment shall be made by the Customer to the Company in accordance with the payment schedule contained in the order acceptance or other contractual document. Time for payment shall be of the essence.
5.2. If no written payment schedule is agreed payment shall be due on the date of the Company’s invoice to the Customer. Payment shall be made without deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
5.3. If the Customer hinders or declines delivery of the Goods when tendered for delivery by the Company, whether by failing to provide timely delivery instructions, documents, licences, transport or otherwise, risk in the Goods shall pass to the Customer, the Goods shall be deemed to have been delivered, and the Company shall have the right to make reasonable charges for any facilities or services provided during the period between the Company’s notification of readiness for delivery and the date of actual delivery to the Customer, including, without limitation, storage and insurance.
5.4. Where the Customer fails to make any payment or part payment for more than 30 days the Company reserves the right to charge interest on the outstanding amount at 3% per annum above the Base Rate of Barclays Bank Plc accruing on a daily basis from the due date until payment is received, whether before or after any judgment.
5.5. Failure by the Customer to adhere to the agreed payment terms, as stated in the Contract, entitles the Company to retain all monies paid and to revoke the Contract.
5.6. The Company shall be entitled to refuse to give delivery of the Goods pending payment of the Contract Price; where, but for the non-payment of the Contract Price, the Goods are ready for delivery the Company shall be entitled to make a reasonable charge for any facilities or services provided to or in respect of the Goods pending payment of the Contract Price and delivery, including, without limitation, storage and insurance.
5.7. Payment shall be deemed to have been made at the time when cleared funds are received in the Company’s bank account.
5.8. Credit and debit card payments are only accepted subject to status at the Company’s sole discretion.
6. Place of Delivery and Transport Terms
6.1. Delivery will be given at the Premises identified as the place of delivery on the order acceptance or other contractual document.
6.2. The Company shall be entitled to require the Customer to sign for delivery of the Goods as a condition of delivery.
6.3. The Company will usually be able to arrange the transport of Goods from the place of delivery to the Customer’s desired destination. Such transport services will be provided by way of separate contract and upon the customary terms of carriage used in the freight and insurance industries. These terms include limitations and exclusions of the Company’s liability for loss and damage. A copy of the terms will be made available to the Customer at the time of request of a quotation for transport. Delivery to the carrier shall be treated as delivery to the Customer.
7. Time for Delivery
7.1. The Company provides estimated dates for delivery and for the completion of work and services in good faith but these dates are not guaranteed. The Company will use reasonable endeavours to deliver the Goods and to complete any services by the time estimated and will make the Customer aware of forecast delays.
7.2. Time for delivery shall not be made of the essence by notice.
7.3. Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill, loss of enjoyment, loss of utility and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract, unless such delay exceeds 180 days and the cause of such delay is due to the Company’s wilful acts or omissions.
8. Title and Risk
8.1. Sales by the Company:
8.1.1. In the absence of express written agreement to the contrary, and subject to clauses 5.3 and 6.3 above, risk of loss or damage to the Goods shall pass to the Customer upon delivery.
8.1.2. Until the Customer has paid in full for the Goods supplied by the Company under this, or any other contract between them notwithstanding delivery and the passing of risk, the Company shall retain legal and beneficial title to the Goods supplied and the Customer shall keep the Goods (whether by its servants, agents or sub-Bailee or otherwise) as fiduciary Bailee for the Company and the relationship of Bailor and Bailee is created between the Company and the Customer.
8.1.3. Until such time as the property in the Goods passes to the Customer, the Customer shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured for an amount at least equal to the price of the Goods and identified as the Company’s property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds from any moneys or property of the Customer and third parties and in the case of tangible proceeds, properly stored, protected and insured.
8.1.4. The Company shall be entitled to trace the proceeds of any sale of any Goods owned by the Company and any insurance proceeds received in respect of any Goods owned by the Company. Such proceeds shall be paid into a separate bank account and shall be held by the Customer on trust for the Company.
8.1.5. Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to immediately deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
8.1.6. The Customer shall not be entitled to pledge or in any way change by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all money’s owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8.1.7. If the Customer enters into or does anything to enter into an agreement with its creditors, liquidation, receivership, administrative receivership or administration, it shall give immediate written notice to the Company and shall automatically surrender possession of the Goods to the Company. The Company shall then be at liberty to resell the Goods so recovered and any part thereof.
8.2. Risk during transport:
8.2.1. Where the Customer has contracted for transport services from the place of delivery to another destination the risk of loss and damage will remain with the Customer during transport subject to the terms and conditions of carriage and the insurance option chosen by the Customer.
8.3. Goods taken by the Company in part exchange:
8.3.1. Title in Goods that are taken in part exchange shall pass to the Company at the time that the Company gives credit for the price of the Goods concerned in the Company’s books.
8.3.2. It shall be a condition precedent to any contract of part exchange that the Goods to be taken by the Company are the unencumbered property of the Customer and the Customer unconditionally warrants as such.
8.3.3. The Customer shall notify the Company of all known material defects in the Goods taken by the Company prior to the exchange taking place.
9. Claims for Shortages
9.1. In the case of alleged shortages of Goods collected from the Premises the Company must be notified at the time of collection or, if the shortage was not reasonably apparent at collection, as soon as practicable thereafter but not exceeding 14 days from the date of collection.
9.2. In the case of an alleged shortage in relation to Goods which have been the subject of a separate contract for transport services the express terms of the transport contract shall govern the notification procedure to be followed by the Customer.
10. Limitation of the Company’s Liability
10.1. The Company limits its total liability to the Customer and to any third parties claiming through him (or through rights arising under his Contract with the Company) for loss or damage to any property arising out of the negligent performance of its obligations under the Contract to a maximum aggregate sum equivalent to the Contract Price in respect of any one event or sequence of events.
10.2. Subject to clauses 3.2, 6.3, 10.1, 11 and 12, the following clauses set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
10.2.1. any breach of these Conditions
10.2.2. any use made or resale by the Customer of the Goods, or of any product incorporating any of the Goods
10.2.3. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.3. Nothing in these Conditions excludes or limits the liability of the Company
10.3.1. for death or personal injury caused by the Company’s negligence; or
10.3.2. under section 2(3), Consumer Protection Act 1987; or
10.3.3. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.3.4. for fraud or fraudulent misrepresentation.
10.4. Subject to condition 10.3:
10.4.1. the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
10.4.2. the Company shall not be liable for any: pure economic loss, loss of profit, loss of business, depletion of goodwill, loss of enjoyment, loss of utility, or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract and which are incurred or borne by the Customer, his customer, or any other person.
10.5. The Company shall not be liable for any loss or damage caused by any event or circumstance beyond its control (including, without limitation, force majeure, extreme weather conditions, the actions of third parties not employed by the Company or any defect in any part of a Customer’s or third party Goods).
11. Business Sales
11.1. Where the Company supplies goods to a Business Customer the provisions of this Clause 11.1 to 11.4 inclusive apply.
11.2. No Goods supplied by the Company shall carry any express or implied term as to its quality, correspondence with description or its fitness for any particular purpose unless the Business Customer sufficiently explains the purpose for which they are required and makes it clear that he is relying on the Company’s skill and judgement at the time that he orders the Goods concerned, and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgment of the Company.
11.3. No proprietary article ordered from the Company by name, type and/or size shall carry any express or implied term but the Company will endeavour to assign to the Business Customer any rights which it may have against the manufacturer or importer of that article.
11.4. A Business Customer undertakes to indemnify the Company and hold it harmless against any claims from a subsequent purchaser arising from or contributed to by a failure on the part of the Business Customer to check the Goods received from the Company in accordance with any pre-delivery instructions issued by the Company.
12. Non-Business Customers
12.1. Where a Customer is also ‘a consumer’ or otherwise protected by some or all of the consumer protection legislation in force in the United Kingdom he has certain minimum statutory rights regarding the return of defective goods and claims for losses. Those statutory rights are not affected by these terms and conditions.
12.2. Where the Company has taken a Goods in part-exchange for onward sale, or where the Company is selling Goods of which it is not the immediate prior owner from new, any usage statements are strictly not guaranteed and are given as estimates only. In such cases, the Company cannot verify that the manufacturer’s instructions regarding the commissioning, maintenance, storage or use of the Goods have been followed. Used Goods are sold as they appear to the Customer, with such defects (if any) as would reasonably be apparent from a survey of the Goods if carried out by a competent qualified surveyor. The Customer is strongly advised to arrange for the carrying out of its own survey.
13. Published Specifications
13.1. Indications of weight, measurement, power, performance, speed capacity, range, fuel capacity or consumption contained in advertisements, brochures, catalogues, websites or in correspondence are made available in good faith, but must always be regarded as indicative estimates only and not specified characteristics of the Goods. The Customer shall make clear any particular characteristic required at the time of placing an Order with the Company so that the same may be incorporated into the contractual specification if practicable.
14. Illustrations, Design and New Models
14.1. Drawings, photographs and other illustrations or advertisement matter supplied, represent generally the range of Goods available but shall not be regarded as representing the actual Goods, the subject of the Contract, and shall not form part of the Contract description.
15. Changes in Manufacturers’ Specifications and Lien
15.1. Where a manufacturer makes minor changes to the design, construction or specification of the Goods which are the subject of a Contract between the Company and its Customer the Company shall be entitled to deliver alternative Goods in performance of its obligations to the Customer and the Customer shall not be entitled to reject the other Goods on account of such minor changes in the design and specification. Where the Company receives notice of major changes of design or specification from the manufacturer of the Goods which are the subject of the Contract the Company shall notify the Customer of the same and the Parties will negotiate in good faith regarding the changes. For the purposes of this clause ‘minor changes’ shall mean changes which would cost no more than 5% of the Contract Price of the Goods.
15.2. The Company shall have a general lien on all Goods in respect of money due to the Company, whether in respect of the Contract or any other contract with the Customer, or for other charges or costs payable by the Customer, and if the general lien is not satisfied within one month after notice has been given to the Customer or other person from whom the monies are due, that such goods are being detained the Goods may be sold by the Company as agents for the Customer by auction or otherwise, and the proceeds of the sale applied to the satisfaction of the lien and the expenses of mooring, storage, maintenance, insurance, sale and administration.
16. Governing Law
The Contract shall be governed by and interpreted in accordance with English law.
17.1. No representative, agent or employee of the Company below the level of Director has the Company’s authority to agree to vary or add to these Conditions or the specifications of the Goods ordered.
17.2. It is understood that any Dealer appointed by the Company is an independent business acting in its own right and is not employed or acting as an agent of the Company and is not authorised to commit the Company by any express or implied undertaking or representation.
18.1. Notices which are required to or may be given by the Company to the Customer shall be sufficiently served if delivered to the Customer’s last known address or sent there by registered post, recorded delivery or airmail.
18.2. Notices which are required to or may be given by the Customer to the Company shall be sufficiently served if delivered to any Company Director at the Company’s registered office as shown on the letterhead or sent there by registered post or recorded delivery.
19.1. Any dispute arising between the Company and the Customer shall be subject to the exclusive jurisdiction of the Courts of England and Wales.