Terms & Conditions

The terms and conditions of all activities carried out by our Gael Force companies are listed below.

All companies mentioned use their acronyms: Gael Force Marine Equipment (GFME), Gael Force Engineering (GFE), Gael Force Fusion (GFF), Gael Force Marine Technology (GFMT) and Gael Force Boatbuilding (GFB).

Terms & Conditions of Sale (GFME)

Terms & Conditions of Sale (GFME)

1    Basis of contract

1.1    In these conditions “Contract” means the contract between you (being the person or entity who orders goods from us) and us (being Gaelforce Marine Equipment Limited a company registered in Scotland under company number SC101936 whose registered office is at 136 Anderson Street, Inverness, IV3 8DH) for the sale and purchase of the “Goods” (as specified in our correspondence with you) or any part of them in accordance with these conditions, which incorporates these conditions, your order provided to us for the supply of Goods, and the attached correspondence. These items and no other terms (whether referenced by you in your order, correspondence or otherwise) apply to the Contract. Any variation to the Contract, including the introduction of any additional terms, shall only be binding when agreed in writing by you and us.  In the event of a conflict between the parts of the Contract the following order of precedence shall apply: (1) the attached correspondence; (2) these conditions; and (3) your order. For the purposes of the Contract “Specifications” shall mean the specifications for the Goods given or referred to in our correspondence with you. 

1.2    Your order (which may be given in writing or verbally) is an offer to purchase the Goods under these conditions, which will be accepted by us when we issue our acceptance (which may for the avoidance of doubt be provided via email, letter, fax, or failing which, shall be deemed by our commencement of performance of our obligations hereunder, which shall for the avoidance of doubt include our taking of any action pursuant to your order), and then the Contract shall come into existence (the date of such being referred to herein as the “Contract Date”). Quotations given by us are not an offer and are only valid for thirty (30) days from their date of issue, or until withdrawn by us.  You acknowledge that you have not relied on any statement, promise or representation which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by us and any descriptions or illustrations contained in our website, catalogues or brochures do not form part of the Contract, unless explicitly agreed by us in writing.

2    Delivery

2.1    Delivery of Goods shall be completed on their arrival at the “Delivery Location” (the location specified in your order, unless our acceptance of your order specifies otherwise).  You will provide all information required to allow us to deliver the Goods.  We will not be responsible for any delay or failure to deliver the Goods if you do not provide us with adequate or provide us with incorrect, delivery instructions, including in respect of any loss, cost, expense, damage or other liability incurred by you as a result thereof. You may change the Delivery Location before the Goods are despatched for delivery.  We may then amend the Delivery Costs (as defined in clause 4) as required, or cancel the Contract without liability to you.

2.2    We shall use reasonable endeavours to deliver the Goods to the Delivery Location by any date(s) specified by us for delivery. However, such dates are approximate only. We may deliver the Goods to the Delivery Location at any time after we notify you that the Goods are ready for delivery. We may deliver the Goods in instalments and invoice you separately for each instalment. Any delay in delivery or defect in an instalment shall not provide a right to reject any other instalment.

2.3    If you do not accept delivery of the Goods, and we are not in material breach of our obligations concerning delivery of the Goods, then delivery of the Goods shall be deemed to have been completed at 9.00am on the day upon which delivery of the Goods was attempted, and we shall arrange for the Goods to be stored until delivery takes place (you may at our discretion be charged for all related costs and expenses), or we may dispose of part or all of the Goods and (after deducting our reasonable costs) account to you for any excess of the Price (as defined in clause 4) received by us for the relevant Goods over such costs.  Any difference of less than 5% between the amount of Goods ordered and those actually delivered shall not entitle you to cancel the Contract, however, we will adjust the Price accordingly, and refund you (if necessary) any excess paid by you.

3    Terms relating to the Goods

3.1    You may only use the Goods for the purpose for which they were manufactured, and in accordance with the manufacturer’s instructions and all applicable laws, regulations and guidance.  The Goods are to be used only by properly skilled and trained personnel.  You are responsible for putting in place all licences and permits which may be required to enable you to use the Goods.

3.2    Until title to the Goods has passed to you, you shall hold the Goods in trust for us, not remove, deface or obscure any identifying mark on the Goods, and maintain the Goods in a satisfactory condition and keep them insured against all risks for their full replacement value from the date of delivery. 

3.3    We may notify you at any time of any changes to the Specifications which are required to conform to any applicable legal requirements. If such changes materially affect the quality or performance of the relevant Goods, you have seven (7) days of receipt of such notice, to cancel the Contract without liability to us.

4    Price and payment

4.1    You shall pay to us the price specified in the Contract for the Goods (the “Price”).  We shall invoice you for the Price on the date(s) specified in the attached correspondence, and in the event that no such dates are specified on or before the Contract Date. Except as specified otherwise in our correspondence with you, you shall pay any such invoices in full and in cleared funds within thirty (30) days of the invoice date via such means as is specified by us. You acknowledge that we may require payment of our invoice before we despatch the Goods to you. Time of payment is of the essence of the Contract. The Price is exclusive of all “VAT” being value added tax or similar sales tax, “Duties” being importation taxes or sums payable to any customs authority or similar governmental authority, and “Delivery Costs” being the costs of delivery of the Goods, include packaging, insurance and transport costs, which shall be paid by you when you pay the Price.  We may, by giving you notice at any time up to five (5) days before the Goods are despatched for delivery, increase the Price, VAT, Duties and/or the Delivery Costs to reflect any increase in the cost of the supply of the Goods that is due to any factor beyond our control, or your breach of the Contract. 

4.2    We reserve the right to make delivery of the Goods conditional on us having received the Price, along with any applicable VAT, Duties and Delivery Costs in full and cleared funds. Where we grant any deferred payment or credit terms to you, we may withdraw such terms at any point in time and for whatever reason we determine.  If you fail to make any payment due to us under the Contract by the due date for payment (the “Due Date”), then you shall pay interest on the overdue amount at the rate of five percent (5%) per annum above HBOS plc’s base lending rate as published 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. You shall pay the interest together with the overdue amount.

4.3    You shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount. We may at any time, without limiting any other rights or remedies, set off any amount owing to us by you against any amount payable by us to you. 

4.4    Where the Goods are to be supplied to a person resident or established outside the United Kingdom, if we so direct the Price, along with any applicable VAT, Duties and Delivery Costs, shall be secured by an irrevocable letter of credit satisfactory to us established by you in favour of us and confirmed by a United Kingdom bank acceptable to us valid for at least six (6) months from the Contract Date (or such longer period as we specify) and which shall entitle us to payment on the presentation to such United Kingdom bank of the documents stipulated therein.

5    Title and risk

The risk in the Goods shall pass to you on completion of delivery in accordance with clause 2 or clause 2.2. Title to the Goods shall not pass to you until we have received payment in full (in cash or cleared funds) of the Price, all VAT, Duties and Delivery Costs, and all other sums which are due from you to us. 

6    Quality

6.1    Where we have manufactured the Goods, we warrant that on delivery and for twelve (12) months thereafter (the “Warranty Period”) the Goods shall conform to any Specifications and be free from material defects.  Where we do not manufacture the Goods we shall, where possible, pass to you the benefit of any warranty or guarantee given to us in respect of the Goods. If you believe that the Goods do not comply with the Contract under the consumer rights act you have a limited period of Thirty (30) days to reject faulty goods. .  We may ask you to return the Goods to us or make the Goods available for collection. If we are liable to you, in full satisfaction of our liability we may, at our sole discretion, either repair or replace the Goods or provide you with a refund for the Goods if within the afore mentioned thirty (30) days. If reported to us outwith this period  we will take all suitable remedies  to repair or replace in the first instance and if goods still remain fualty we will offer a more suitable remedy such as price reduction or refund... These conditions shall apply to any repaired or replaced Goods supplied by us. We shall not be liable if the Goods fail to comply with this clause or other applicable requirements under law (in so far as such apply to the Contract) if you continue to use the Goods after informing us as required by this clause; if the defect or lack of fitness for purpose arises because you have failed to follow instructions or good trade practice relating to the storage, maintenance and/or use of the Goods; if the Goods are employed other than in normal operating conditions; if the defect or lack of fitness for purpose arises from fair wear and tear, wilful damage or negligence; or if the defect or lack of fitness for purpose arises as a result of any instructions, design specifications or other information provided by you to us and upon which we have relied in relation to the performance of our obligations hereunder. 

6.2    You acknowledge that you have selected the Goods for your own purposes and that we do not warrant that the Goods will be fit for your particular purposes, unless we have agreed with you in writing to provide advice to you on the selection of the Goods and we have subsequently advised you in writing that the Goods will be fit for those purposes. Otherwise, you acknowledge and agree that we are not providing advice in connection with the suitability of the Goods for any particular purpose, and that you shall be solely responsible for (and indemnify us against) all loss, cost, expense, damage or other liability arising out of a failure of the Goods to be suitable for any purpose to which they are applied. If you request such advice from us, you must provide all relevant information to enable us to give such advice.  If you fail to do so, we will not be liable for any loss you suffer as a result of a failure of you to provide such information.

7    Liability

7.1    Nothing in the Contract shall limit or exclude our liability for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, or any other matter we cannot lawfully limit or exclude liability for. We shall not be liable to you in any respect for loss of profit or decrease in turnover, or any indirect, secondary or consequential loss (including any such loss that may result from a deliberate breach of the Contract by us, or our employees, agents or subcontractors).

7.2    Subject to clause 7.1, our total liability to you shall not exceed the Price paid by you to us. Except as set out in these conditions, all warranties, conditions, representations, guarantees and other terms implied by statute or common law are, to the extent permitted by law, excluded.

7.3    This clause does not apply if you are a consumer.

8    Return, cancellation & suspension

8.1    If you have not used the Goods and they are undamaged and in their original packaging (in a re-sellable ‘as new’ condition), you may within fourteen (14) days of the delivery date cancel the Contract by notifying us in writing. This does not apply where the Contract is for the supply of books, charts, boxed software, or items made to order or made to order for you by a third party.  In such an event you shall return to us at your cost the Goods, properly packed to ensure safe delivery, to our address as set out above.  We shall refund any part of the Price paid for the returned Goods to you within thirty (30) days of our receipt of the Goods.

8.2    If you become (or we reasonably believe that you are about to become) subject to any of the events listed in clause 8.3, and we notify you accordingly, without limiting any other right or remedy available to us, we may require you to deliver up any Goods to which title has not passed to you and, if you fail to do so promptly, enter the premises where such Goods are stored to recover them, and/or cancel the Contract or suspend our performance under the Contract, without liability to you, and all outstanding sums due to us from you shall become immediately due and payable by you.

8.3    For the purposes of clause 8.2, events are: you breach a material term of the Contract; you suspend or threaten to suspend, payment of your debts as they fall due; you admit inability to pay your debts or are deemed unable to pay your debts in accordance with the Insolvency Act 1986; you commence negotiations with any class of your creditors; a creditor or encumbrancer attaches or takes possession of, or other such process is levied or enforced on or sued against any part of your assets and such attachment or process is not discharged within ten (10) days; an application is made to court or an order is made for the appointment of an administrator or administrative receiver or a notice of intention to appoint an administrator or administrative receiver is given; any event occurs in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in this clause; or you threaten to suspend, cease or threaten to cease carrying on substantially the whole of your business.  You shall notify us immediately if you become subject to any of the events listed in this clause.

9    Dealing as a consumer

9.1    If you are ordering Goods by mail, telephone or via the internet, not in the course of business, you have the right under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 to cancel the Contract, the Contract may be cancelled at any point before receipt of goods and  fourteen  (14)  days after receipt of the goods  provided you do so in writing. If you do so we shall refund any part of the Price paid for the relevant Goods to you within thirty (30) days, provided always that you make available or return the Goods to us in accordance with clause 9.3.

9.2    Your right under clause 9.1 does not apply if the Goods are made to your specifications or personalised, if by reason of their nature they cannot be returned or are liable to deteriorate or expire rapidly, audio or video recordings or computer software if they are unsealed by you, or newspapers, periodicals or magazines.

9.3    If the Goods have been delivered prior to you cancelling under clause 9 you shall retain possession, take reasonable care of the Goods and either make them available for collection at the Delivery Location or return the Goods using such method as arranged by us.

9.4    Nothing in the Contract shall limit or exclude our liability for death of personal injury caused by our (or our employees, agents or subcontractors) negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, or any other matter we cannot lawfully limit or exclude liability for.  Subject to this, we shall not be liable to you in any respect for loss of profit or decrease in turnover, or any loss which we both thought unlikely at the date of the Contract, and our total liability to you shall not exceed the Price paid by you to us. Except as set out in these conditions, all warranties, conditions, representations, guarantees and other terms implied by statute or common law are, to the extent permitted by law, excluded.  You should contact your local Citizen’s Advice Bureau for further information on our exclusions and limitations of liability.

9.5    Nothing in these conditions shall affect, and these conditions operate subject to, your rights as a consumer under applicable law.  You should contact your local Citizen’s Advice Bureau for further information on these rights. 

9.6    For the purposes of these conditions you are a consumer if you are purchasing the Goods other than in the course of your business.

10    General

10.1    We are not liable for any failure or delay in performing our obligations under the Contract if caused by any event beyond our reasonable control which by its nature could not have been foreseen or was unavoidable.

10.2    We may assign or otherwise deal in any other manner with all or any of our rights or obligations under the Contract. You may not assign or otherwise deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.

10.3    Any notice given to us under or in connection with the Contract shall be in writing and addressed to us at our registered office, and any notice given to you shall be in writing, addressed to you at your registered office, unless either of us notify the other accordingly.  

10.4    If any court finds that any part of any provision of the Contract is invalid, illegal or unenforceable, that provision shall 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 modified, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

10.5    A waiver of any right or remedy under the Contract must be given in writing and is not 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 is a waiver of that or any other right or remedy. No single or partial exercise of such right or remedy shall restrict the further exercise of that or any other right or remedy.

10.6    The Contract and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with Scots law, and the parties submit to the exclusive jurisdiction of the courts of Scotland.

Terms & Conditions for the Design & Build of Concrete & Steel Fabricated Marine & Other Structures (inc. Floating Structures) (GFE)

Terms & Conditions for the Design & Build of Concrete & Steel Fabricated Marine & Other Structures (inc. Floating Structures) (GFE)

1 Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions:

“Acceptance Schedule” means the plan (if any) for the acceptance of the Structures referred to in the Contract, which may include the execution by the Customer of an Acceptance Certificate (in the form provided by the Supplier) indicating acceptance of a Structure;
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business;
“Confidential Information” has the meaning given in clause 19.1;
“Charges” means the charges for the provision of the Services and the supply of the Structures, as set out in the Quotation and/or as otherwise determined according to the terms of the Contract;
“Change” shall have the meaning set forth in clause 10.1;
“Change Response” shall have the meaning set forth in clause 10.2;
“Contract” means the contract between the Supplier and the Customer for the supply of the Structures and/or the Services in accordance with these terms and conditions, which incorporates these terms and conditions, the Quotation, the Order, the Project Plan, and the Supplier’s Acceptance;
“Contract Date” shall have the meaning set forth in clause 2.3;
“Customer” means the person or firm who orders Structures and/or Services from the Supplier;
“Customer Deliverables” means any information, materials, items or instructions required by the Supplier from the Customer to enable the Supplier to supply the Structures and/or Services to the Customer;
“Customer Information” means the information made available by the Customer to the Supplier to enable the Supplier to prepare the Quotation (including the information concerning the intended purposes to which the Structures are to be applied, their intended manner of use, and any specific stress, pressure or loads to which the Structures shall be subject);
“Customer Items” means Customer Deliverables in the form of tangible items to be installed upon Structures by the Supplier;
“Customer’s Project Manager” means a manager or supervisor or other representative for the Project appointed by the Customer in accordance with clause 5.1.1, which for the avoidance of doubt shall include any person authorised by the Customer to attend to matters pertinent to the Contract on behalf of the Customer;
“Delivery” means arrival of a Structure at the Delivery Location or (where the Supplier so specifies) handover of the Structure to the Customer at the Delivery Location, and “Delivered” shall be construed accordingly;
“Delivery Date” means the date specified for Delivery of a Structure within the Contract;
“Delivery Location” means the location specified for Delivery of a Structure within the Project Plan, which may for the avoidance of doubt be the Supplier’s premises or building yards;
“Duties” means any importation tax or duty or sum payable to any customs authority or facility or similar governmental authority arising from the Delivery of the Structures to the Customer, but excluding any VAT;
“Force Majeure Event” means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and including acts of God, storms, floods, high winds, volcanic eruptions, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, sanctions, import / export restrictions, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources, and which shall include (in respect of the Supplier’s performance hereunder) any failure or delay in the supply of any Third Party Items by any person or any failure or delay in the supply of Customer Deliverables by the Customer;
“Group” means in relation to a company, that company, any subsidiary or holding company of that company from time to time, and any subsidiary of such holding company from time to time;
“Installation Services” means Services in the form of the installation of Customer Items, or the acquisition and/or installation of Third Party Items, upon the Structures;
“Intellectual Property Rights” means any rights in or to patents, rights in or to inventions, rights in or to registered designs, copyright and related rights, database rights, design rights, topography rights, rights in trade marks, service marks, trade names and domain names, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Normal Working Hours” means 9.00am to 5.00pm in the United Kingdom;
“Order” means the Customer’s order for the supply of Structures and Services whether in the form of a purchase order or otherwise;
“Project” means the design and build project described in the Contract; “Project Managers” means the Supplier’s Project Manager(s) and the Customer’s Project Manager;
“Project Milestone” means a date by which a part of the Project (for example the Delivery of a Structure) is estimated to be completed, as set out in the Contract;
“Project Plan” means the detailed plan for the supply of the Structures and the Services, which shall include the Quotation and any Specifications, and which shall set out the estimated timetable (including any Project Milestones which may relate to the payment of Stage Payments) for the provision of the Structures and the Services by the Supplier (including any applicable Acceptance Schedule);
“Quotation” means the quotation issued by the Supplier for the supply of the Structures and the Services; “Representatives” has the meaning given in clause 19.2.1;
“Services” means the services to be provided by the Supplier under the Contract (which shall include the supply of the Structures, and if applicable the creation and supply of designs and drawings for the Structures);
“Specification” means any specification for the Structures agreed between the Supplier and the Customer and referenced in the Contract, and which may include the designs and drawings for and illustrating the Structures prepared by the Supplier and referred to in the Quotation and/or Project Plan, and which may include particular safety requirements;
“Stage Payments” shall have the meaning set forth in clause 11.1;
“Structures” means the concrete and fabricated steel marine and other structures to be developed by the Supplier and supplied to the Customer hereunder;
“Supplier” means Gael Force Engineering Limited a company registered in Scotland with company number SC394817 whose registered office address is at 136 Anderson Street, Inverness, IV3 8DH;
“Supplier’s Acceptance” means the Supplier’s written acceptance of an Order;
“Supplier’s Project Manager” means the Supplier’s manager for the Project, appointed in accordance with clause 4.3;
“Term” means the term of the Contract, as determined in accordance with clause 20;
“Third Party Items” shall have the meaning set forth in clause 13;
and “VAT” means any value added tax, sales tax or any similar replacement or additional tax or duty payable on the supply of the Products or the Services, but excluding any Duties.
1.2 Clause headings shall not affect the interpretation of the Contract.

1.3 A person includes a natural person, and a corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 Any obligation in the Contract on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.8 A reference to the Contract is a reference to the Contract as varied or novated (in each case, other than in breach of the provisions of the Contract) at any time.

1.9 References to clauses are to the clauses of the Contract.

1.10 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.

2 Basis of contract

2.1 These terms shall apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether referenced in the Order, correspondence or otherwise), or which are implied by trade, custom, practice or course of dealing.

2.2 In the event of a conflict between the parts of the Contract the following order of precedence shall apply:

2.2.1 these terms and conditions;
2.2.2 the Supplier’s Acceptance;
2.2.3 the Quotation (if any);
2.2.4 the Project Plan (if any); and
2.2.5 the Order.
2.3 The Order constitutes an offer by the Customer to purchase the Structures and/or Services in accordance with these terms and conditions. The Customer shall ensure that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when the Supplier issues the Supplier’s Acceptance, at which point the Contract shall come into existence (the “Contract Date”). Quotations shall not constitute an offer. Quotations shall only be valid for a period of thirty (30) Business Days from their date of issue unless otherwise specifically stated thereon.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Structures or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the supply of the Structures and/or Services.

2.5 Any typographical, clerical or other accidental errors or omissions in the Contract shall be subject to correction without any liability on the part of the Supplier.

3 The Project Plan

The parties acknowledge that they may agree the supply of the Structures and the Services on the basis of a Project Plan. Where the parties have not agreed a Project Plan, the Structures and the Services shall be supplied on the basis of the other documents referred to in clause 2.2 (where they exist), in so far as they form part of and subject always to the terms of the Contract.

4 Supplier's obligations

4.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Structures to the Customer, in accordance in all material respects with the Contract.

4.2 The Supplier shall use reasonable endeavours to meet the performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence in respect thereof.

4.3 The Supplier shall appoint the Supplier’s Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project.  The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier’s Project Manager throughout the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.

5 Customer's obligations

5.1 The Customer shall:

5.1.1 co-operate with the Supplier in all matters relating to the Project and appoint the Customer’s Project Manager(s), who shall have the authority to contractually bind the Customer on matters relating to the Project, the Supplier and the Customer acknowledging that there may be several such persons, that each such person shall be entitled to so bind the Customer, and that such persons may be employed by third parties;
5.1.2 provide in a timely manner such assistance in connection with the Project (including where required access to the Customer’s premises and facilities, and delivery up to the Supplier in a timely manner of any Customer Deliverables) as is requested by the Supplier;
5.1.3 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and the Delivery of the Structures;
5.1.4 use any Structures only for the purposes and within such conditions for which they have been manufactured, as disclosed in the Contract, and always in accordance with such other directions and limitations as the Supplier may give to the Customer, the Customer acknowledging that unless specified otherwise within the Contract the Structures will have been created by the Supplier only to specified dimensions and using specified materials (as set down in the Contract) without knowledge of the purpose to which the Structures may be put and accordingly in such an event the Supplier shall not be liable for any failure of the Structures to meet such purpose; and
5.1.5 following Delivery of a Structure maintain that Structure in accordance with the directions of the Supplier and good industry practice.
5.2 The Customer warrants and undertakes to ensure:

5.2.1 the Customer Information is complete and accurate as regards its requirements for the Structures, and otherwise; and
5.2.2 all Customer Deliverables shall be complete and accurate in all respects, and fit for the purposes for which they are supplied.


6 Delivery

6.1 The Supplier shall procure that each Structure is Delivered to the Customer at the Delivery Location.

6.2 In the event that in the course of Delivery of a Structure, the Structure is required to be transported across a border or be cleared for transit by any customs authority or facility or similar, the Customer shall, if required by the Supplier, act as the importer of record in relation to such Structure.

6.3 Delivery of a Structure shall be complete upon its arrival at the Delivery Location.

6.4 If the Customer fails to accept delivery of a Structure, then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under the Contract:

6.4.1 the Structure shall be deemed to have been Delivered at 9.00am local time at the Delivery Location on the Delivery Date; and
6.4.2 the Supplier shall store the Structure until Delivery takes place, and charge the Customer for all related costs and expenses (including insurance, berthage and the engagement of personnel to attend to the storage of and additional transport requirements relating to the Structure); or
6.4.3 the Supplier may dispose of the Structure, following deduction of all related costs and expenses (including insurance and the engagement of personnel to attend to the additional transport requirements relating to the Structure), then account to the Customer for the remainder of the Charges paid by the Customer to the Supplier in relation to the Structure.
6.5 Nothing in clause 6.4 shall act to negate the rights of the Supplier to recover any loss, cost, expense, damages or compensation from the Customer for the Customer’s breach of the Contract.

6.6 All Customer Deliverables shall be delivered by the Customer to the Supplier in such manner and to such location as the Supplier so directs.

7 Title and risk

7.1 Risk in Structures Delivered to the Customer shall pass to the Customer on Delivery.

7.2 Title to Structures Delivered to the Customer shall pass to the Customer on receipt by the Supplier in full and cleared funds of the whole of the Charges and of any other sums due by the Customer to the Supplier under any other contract between the Supplier and the Customer.

7.3 Following Delivery, and until title to a Structure has passed to the Customer, the Customer shall: 

7.3.1 hold the Structure in trust for the Supplier; 
7.3.2 not charge, grant security over or otherwise encumber the Structure; and
7.3.3 maintain the Structure in satisfactory condition and keep it insured against all risks for its full replacement value.


8 Acceptance and rejection

8.1 The Customer shall accept the Structures in accordance with the Acceptance Schedule (if any). In the event of a conflict between the Acceptance Schedule and the remainder of this clause 8, the Acceptance Schedule (if any) shall take precedence. In all other events the remainder of this clause 8 shall apply.

8.2 The Customer shall inspect all Structures within five (5) Business Days of Delivery, and inform the Supplier without delay of any defects evident therein. If the Customer does not so notify the Supplier of any defects the Customer shall be deemed to have accepted the Structures and shall not be entitled to reject any Structure due to any defect which should have been apparent on such inspection, and the Supplier shall have no liability for any loss, cost, expense or damage arising as a result of that defect.

8.3 In the case of a latent defect in any Structure which is not reasonably ascertainable during the period referred to in clause 8.1, the Customer shall notify the Supplier without delay following the latent defect becoming apparent, and in any case within five (5) Business Days thereof. In the event that the Customer does not so notify the Supplier, the Customer shall not be entitled to reject any Structure due to such latent defect and the Supplier shall have no liability for any loss, cost, expense or damage arising as a result of that latent defect.

8.4 In the event that the Customer notifies the Supplier of a defect in accordance with clause 8.1 or 8.3, subject always to the terms of clause 13, the Supplier shall at its option either replace, repair, or refund the part of the Charges paid by the Customer to the Supplier in respect of, such Structure, in full satisfaction of any and all liability of the Supplier to the Customer in respect of such defect.

8.5 The Customer’s Project Manager(s) shall have the right, exercisable during Normal Working Hours on any Business Day and subject always to the prior written agreement of the Supplier (such agreement not to be unreasonably withheld), to inspect any Structures in the process of creation. In the event that the Customer exercises this right, the Supplier shall be entitled to appoint a representative to accompany the Customer’s Project Manager. In exercising this right, whilst at the location where the inspection takes place, the Customer’s Project Manager shall comply with all applicable rules, regulations and policies, along with all directions given by or on behalf of the Supplier.

9 Project Management

The Customer’s Project Manager(s) and the Supplier’s Project Manager shall meet on such regular occasions (if any) as are specified in the Project Plan to discuss matters relating to the Project. 

10 Change control

10.1 If following the Contract Date either party wishes to amend or alter the Contract, including the nature of the Structures, the Services, the Specification, the Project Plan or the Charges (a “Change”), it shall submit details of the Change to the other in writing. Changes shall be dealt with in accordance with this clause 10.

10.2 Following the submission of a Change, the Supplier shall, within a reasonable time, provide details to the Customer of:

10.2.1 the likely time required to implement the Change;
10.2.2 any variations to Charges arising from the Change;
10.2.3 the likely effect of the Change on the Project Plan; and
10.2.4 any other impact of the change on the terms of the Contract, such response for the purpose of the Contract being referred to as a “Change Response”.
10.3 If the Change is required by the Customer, for example by way of the Customer requiring through a Customer Project Manager that the performance by the Supplier of its obligations hereunder is suspended or paused, the Change shall be deemed binding between the parties on expiry of a period of twenty four (24) hours following submission of the Change Response, unless the Change Response specifies a longer period.

10.4 If the Supplier requests a Change, the Customer shall not unreasonably withhold or delay consent to it. 

10.5 Except as specified above, if the Customer wishes the Supplier to proceed with a Change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Charges, the Project Plan and any relevant part of the Contract to take account of the change.

11 Charges and payment

11.1 The Supplier shall invoice the Customer for the Charges on the date(s) specified in the Quotation. Where the Quotation does not specify date(s) for the invoicing of the Charges, the Charges shall be invoiced on the following dates:

11.1.1 as to thirty five percent (35%) of the Charges on the Contract Date;
11.1.2 as to twenty five percent (25%) of the Charges on completion of Stage One of the manufacture of the Structures (as defined in the Quotation or the Supplier’s Acceptance);
11.1.3 as to twenty five percent (25%) of the Charges on completion of Stage Two of the manufacture of the Structures (as defined in the Quotation or the Supplier’s Acceptance);
11.1.4 as to ten  percent (10%) of the Charges on Delivery of the Structures (as defined in the Quotation or the Supplier’s Acceptance); and
11.1.5 as to five percent (5%) of the Charges on the earlier of acceptance of the Structures by the Customer, or expiry of a period of thirty (30) days following Delivery, with each of the above noted payments being referred to for the purposes of the Contract as the “Stage Payments”.
11.2 Where the Services are Installation Services, unless agreed otherwise between the Supplier and the Customer and stated in the Project Plan, the Charges shall be determined according (a) the cost to the Supplier of any Third Party Items acquired, and (b) the time spent by the Supplier installing the Customer Items and/or the Third Party Items according to the Supplier’s standard hourly rates in force from time to time. Where the Installation Services include the acquisition of Third Party Items, the Supplier shall also be entitled to levy an additional fifteen percent (15%) administration charge upon the cost of the Third Party Items. The Supplier shall be entitled to invoice the Customer for any such Charges as and when such Charges accrue.

11.3 The Charges are expressed exclusive of all VAT and Duties, for which the Customer shall be additionally liable, and which the Supplier shall add to its invoices at the appropriate rate.

11.4 The Customer shall pay each invoice submitted to it by the Supplier in full upon receipt, unless specified otherwise within the Contract.

11.5 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay any invoice by its due date the Supplier may:

11.5.1 charge interest on the relevant sum from the due date for payment at the annual rate of eight percent (8%) above the base lending rate from time to time of HBOS plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
11.5.2 suspend the provision of all Services until payment has been made in full.
11.6 Time of payment of the Charges shall be of the essence of the Contract.

11.7 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract despite any other provision, without prejudice to any right to claim for interest under the law, or any such right under the Contract.

11.8 If the Supplier so directs the Customer shall procure that payment of the Charges shall be secured by a bank guarantee or an irrevocable letter of credit satisfactory to the Supplier established by the Customer in favour of the Supplier and confirmed by a United Kingdom bank acceptable to the Supplier and valid for such period as the Supplier specifies, and which shall entitle the Supplier to payment on the presentation to such United Kingdom bank on presentation of the documents stipulated in relation thereto.

11.9 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.

11.10 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

11.11 All Customer Deliverables shall be supplied by the Customer to the Supplier at the sole cost of the Customer.

12 Quality standards

12.1 The Supplier shall use reasonable but commercially prudent endeavours to ensure all Services supplied to the Customer by the Supplier pursuant to the Contract shall be supplied with all skill and care and in accordance with standard industry practice, however the Supplier neither gives any warranty or guarantee or makes any representation as to the quality, standard or manner of supply of the Services.

12.2 The Supplier shall use reasonable but commercially prudent endeavours to ensure the Structures supplied to the Customer pursuant to the Contract shall:

12.2.1 conform to their Specification; and
12.2.2 be of satisfactory quality, the Customer acknowledging that unless specified otherwise within the Contract the Structures will have been created by the Supplier only to specified dimensions and using specified materials (as set down in the Contract) without knowledge of the purpose to which the Structures may be put and accordingly in such an event the Supplier shall not be liable for any failure of the Structures to meet such purpose, otherwise the Supplier neither gives any warranty or guarantee or makes any representation as to the quality or fitness for purpose of the Structures or their conformance with any Specification.
12.3 The Customer acknowledges that the Supplier has manufactured the Structures on the basis of the Customer Information, including the information as regards the intended use of the Structures and the required performance characteristics of the Structures (including their ability to withstand specified levels of stress, pressure or load, for example through their use in adverse weather conditions, in inclement seas or in the region of other structures or energy sources). The Customer acknowledges that in no event shall the Supplier be liable in any manner for any failure of the Structures to be fit for any purpose or for use within any conditions or subject to any stress, pressure or loads not referred to in the Contract.

12.4 The Customer acknowledges that the ability of the Structures to meet the standards set down in the Contract is contingent upon the Structures being properly maintained by the Customer. Accordingly, the Supplier shall not be liable for any failure of the Structures to meet the standards set down in the Contract where such failure has arisen as a result (directly or indirectly) of a failure of the Customer to properly maintain the Structures.

12.5 The Supplier shall not be liable for any failure of the Structures to meet the standards set down in the Contract where such failure has arisen due to normal wear and tear, normal degradation of the materials utilised within the Structures, for example galvanic corrosion or degradation, or fatigue induced failure.

12.6 The Customer warrants that the Customer Deliverables shall be fit for the purpose for which they are intended to be used, within the Project and in respect of the provision of the Services. The Customer shall on demand indemnify and keep indemnified the Supplier against any loss, cost expense or other liability incurred by the Supplier and arising out of or relating directly or indirectly to any breach of the warranty granted under this clause 12.4.

13 Third party items

If any part of a Structure is to be acquired by the Supplier for the Customer from a third party (a “Third Party Item”), the Customer acknowledges that unless the Supplier has agreed in the Contract to provide Services in the form of the specification and selection of that Third Party Item as fit for a particular purpose, the Supplier grants no warranty or guarantee in respect of such Third Party Item, the Customer shall not be entitled to reject such Third Party Item pursuant to the Contract (or any Structure supplied pursuant to the Contract on the basis of any defect, failure in or lack of fitness of purpose of that Structure due to that Third Party Item), and that the Supplier shall not be liable for any loss, cost, expense or damage arising (directly or indirectly) as a result of that Third Party Item. The Supplier shall, however, use reasonable endeavours to procure that any warranty or guarantee granted by the manufacturer of such Third Party Item is enforceable by the Customer.

14 Consents, permissions and applicable laws

14.1 The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the supply of the Structures and the Services to the Customer in the manner envisaged in the Contract.

14.2 The Customer shall obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to acquire, use or enjoy the benefit of the Services and Structures supplied to it.

14.3 The Customer shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to its acquisition, use or enjoyment of the benefit of the Services and Structures supplied to it. 

15 Limitation of liability

15.1 This clause limits the financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:

15.1.1 any breach of the Contract;
15.1.2 any use made of Structures by the Customer; and
15.1.3 any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Contract.
15.2 Nothing in the Contract shall limit or exclude the liability of either party for:

15.2.1 death or personal injury resulting from negligence;
15.2.2 fraud or fraudulent misrepresentation.
15.3 Without prejudice to clause 15.2, and except as specified otherwise hereunder, neither party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with the Contract.

15.4 The Supplier shall not be liable to the Customer for any loss, cost, expense or damage arising (directly or indirectly) due to the act or omission of any person not under the management of the Supplier.

15.5 Subject always to clauses 15.2, 15.3 and 15.4 the liability of the Supplier to the Customer under and in respect of the performance or non-performance of its obligations under the Contract shall be limited to the Charges paid to the Supplier by the Customer.

16 Insurance

The Supplier shall ensure the Structures against loss or damage whilst at risk of the Supplier. Otherwise the Supplier shall maintain such insurances as are prudent and customary for a manufacturer of structures similar to the Structures to maintain.

17 Assignment and subcontracting

The Customer may not assign, transfer, subcontract or deal in any of its rights, benefits or obligations under the Contract without the prior written consent of the Supplier. The Supplier may in its sole discretion assign, transfer, sub-contract or otherwise deal in any of its rights, benefits or obligations under the Contract without the prior written consent of the Customer.

18 Intellectual Property Rights

18.1 All Intellectual Property Rights resulting from the provision of the Structures and the Services shall be the absolute property of the Supplier. Whilst the Supplier shall not knowingly infringe the Intellectual Property Rights of any third party in its supply of the Structures and the Services, it does not warrant that the Structures and the Services shall not infringe the Intellectual Property Rights of any third party. The Supplier hereby grants (subject always to any applicable third party rights) to the Customer the right to use the Structures for the purposes envisaged in the Project Plan free of charge and on a non-exclusive, worldwide basis.  If the Supplier terminates the Contract pursuant to clause 20.2, this licence will automatically terminate.

18.2 The Customer warrants that the Supplier is entitled to make use of any Customer Deliverables for the purposes of providing the Services and the Structures to the Customer, and shall on demand indemnify and keep indemnified the Supplier against any loss, cost expense or other liability arising out of or relating directly or indirectly to any claim or allegation that the use by the Supplier of the Customer Deliverables for the purposes of providing the Services and the Structures to the Customer infringes or is likely to infringe the Intellectual Property Rights of any person.

19 Confidentiality

19.1 Save as expressly provided hereunder, each party undertakes that it shall not at any time during the Term and thereafter disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party including information relating to a party’s operations, processes, plans, electronic drawing or other files, know-how, trade secrets, market opportunities and customers (“Confidential Information”), except as permitted by clause 19.3.

19.2 Each party may disclose the other party’s Confidential Information:

19.2.1 to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the party’s obligations under the Contract, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 19 as though they were a party to the Contract and the disclosing party remains responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
19.2.2 as may be required by law, court order or any governmental or regulatory authority.
19.3 The Supplier may disclose Confidential Information of the Customer to members of its Group provided that the Supplier takes all reasonable steps to ensure that such persons comply with the confidentiality obligations contained in this clause 19 as though they were a party to the Contract and the Supplier remains responsible for such persons’ compliance with the confidentiality obligations set out in this clause.

19.4 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party or to be implied from the Contract.

20 Term and termination

20.1 The Contract shall commence on the Contract Date and shall, subject to the provisions of clause 20.2, remain in effect until completion of the Project.

20.2 If the Customer becomes subject to any of the events listed in clause 20.3, or the Supplier 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 the Supplier, the Supplier may:

20.2.1 require the Customer to deliver up any Structures to which title has not passed to the Customer and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party or the location where such Structures are stored in order to recover them; and/or
20.2.2 terminate the Contract; or
20.2.3 suspend the performance of its obligations under the Contract, without incurring any liability to the Customer.
20.3 For the purposes of clause 20.2, the relevant events are:

20.3.1 breach by the Customer of a material term of the Contract;
20.3.2 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due;
20.3.3 the Customer 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 its 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) has any partner to whom any of the foregoing apply;
20.3.4 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;
20.3.5 (being an individual) the Customer is the subject of a bankruptcy petition or order;
20.3.6 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, diligence, 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 ten (10) Business Days;
20.3.7 (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; 
20.3.8 (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
20.3.9 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
20.3.10 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 clause 20.3.2 to clause 20.3.9 (inclusive);
20.3.11 the Customer suspends, threatens to suspends, ceases or threatens to cease carrying on all of its business, or substantially the whole of its business;
20.3.12 (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;
or 20.3.13 (being a company) where the person who owns or controls the Customer enters into a state of affairs similar to any of those outlined in this clause 20.3.
20.4 The Customer shall notify the Supplier immediately if it becomes subject to any of the events listed in clause 20.3.

20.5 Termination of the Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.

20.6 On termination of the Contract, save as expressly provided otherwise hereunder:

20.6.1 all sums payable to the Supplier by the Customer under the Contract shall become immediately due and payable;
20.6.2 the Customer shall on request by the Supplier promptly return to the Supplier all documents and materials (and any copies) containing the Supplier’s Confidential Information; 
20.6.3 the Customer shall promptly erase all the Supplier’s Confidential Information from its computer systems (to the extent possible); and
20.6.4 the Customer shall promptly on request, certify in writing to the Supplier that it has complied with the requirements of clauses 20.6.2 and 20.6.3.
20.7 On termination of the Contract any provision of the Contract which is intended either expressly or by implication to enter into or continue in force shall (as appropriate) enter into or remain in force.

21 Force majeure

21.1 Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under the Contract so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.

21.2 A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event:

21.2.1 notify the other party of the nature and extent of such Force Majeure Event; and
21.2.2 use all reasonable endeavours to remove any causes of such Force Majeure Event and resume performance under the Contract as soon as feasible.

22 Costs

Save as otherwise provided in the Contract, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of the Contract, and all documents ancillary to it. 

23 Severance

23.1 If any provision of the Contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

24 Further assurance

Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to the Contract and the transactions contemplated by it.

25 Variation and waiver

25.1 Any variation of the Contract shall be in writing and signed by or on behalf of the parties by a person expressly authorised to execute the same.

25.2 Any waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

25.3 No failure to exercise or delay in exercising any right or remedy provided under the Contract or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.

25.4 No single or partial exercise of any right or remedy under the Contract shall prevent or restrict the further exercise of that or any other right or remedy.

26 Notices

26.1 A notice served under the Contract:

26.1.1 shall be in writing in the English language; 
26.1.2 shall be signed by or on behalf of the party giving it by a person expressly authorised to execute the same;
26.1.3 shall be sent for the attention of the person, and to the address, given in this clause 26 (or such other address or person as the relevant party may notify to the other party in accordance with the provisions of this clause 26); and
26.1.4 shall be delivered personally or sent by commercial courier.
26.2 The addresses for service of notices are those addresses specified at the beginning of the Contract.

26.3 A notice or any other communication given in connection with the Contract is deemed to have been received if delivered personally, at the time of delivery, or if sent by commercial courier, five (5) Business Days following despatch into the care of the courier.

26.4 For the purposes of this clause if deemed receipt under this clause is not within Normal Working Hours on any Business Day, the notice shall be deemed to have been received on commencement of Normal Working Hours on the next Business Day.

27 Rights of third parties

No term of the Contract shall be enforceable by a person who is not a party to the Contract.

28 Governing law and jurisdiction

28.1 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 Scots law.

28.2 The parties irrevocably agree that the courts of Scotland shall, subject to the foregoing, have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding the foregoing the Supplier shall be entitled to at its option seek recourse for any breach of the Contract by the Customer or enforcement of any judgement given against the Customer in any jurisdiction in which the Customer has assets or to which the Customer is subject.

Terms & Conditions for the Design & Build of Mooring Systems (GFME / GFE / GFF)

Terms & Conditions for the Design & Build of Mooring Systems (GFME / GFE / GFF)

1 Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions:

“Acceptance Schedule” means the plan (if any) for the acceptance of the Mooring Systems referred to in the Contract, which may include the execution by the Customer of an Acceptance Certificate (in the form provided by the Supplier) indicating acceptance of a Mooring System;
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business;
“Charges” means the charges for the provision of the Services and the supply of the Mooring Systems, as set out in the Quotation and/or as otherwise determined according to the terms of the Contract;
“Change” shall have the meaning set forth in clause 8.1;
“Change Response” shall have the meaning set forth in clause 8.2;
“Contract” means the contract between the Supplier and the Customer for the supply of the Mooring Systems and/or the Services in accordance with these terms and conditions, which incorporates these terms and conditions, the Quotation, the Order and the Supplier’s Acceptance;
“Contract Date” shall have the meaning set forth in clause 2.3;
“Customer” means the person or firm who orders Mooring Systems and/or Services from the Supplier;
“Customer Deliverables” means any information, materials, items or instructions required by the Supplier from the Customer to enable the Supplier to supply the Mooring Systems and/or Services to the Customer;
“Customer Information” means the information made available by the Customer to the Supplier to enable the Supplier to prepare the Quotation (including the information concerning the intended purposes to which the Mooring Systems are to be applied, their intended manner of use, and any specific stress, pressure or loads to which the Mooring Systems shall be subject);
“Customer Items” means Customer Deliverables in the form of tangible items to be installed upon the Mooring Systems by the Supplier or Customer’s chosen installation service provider;
“Customer’s Representative” means a manager or supervisor or another representative for the Project appointed by the Customer in accordance with clause 4.1.1, which for the avoidance of doubt shall include any person authorised by the Customer to attend to matters pertinent to the Contract on behalf of the Customer;
“Delivery” means arrival of a Mooring System at the Delivery Location or (where the Supplier so specifies) handover of the Mooring System to the Customer at the Delivery Location, and “Delivered” shall be construed accordingly;
“Delivery Date” means the date specified for Delivery of a Mooring System within the Contract;
“Delivery Location” means the location specified for Delivery of a Mooring System within the Quotation, which may for the avoidance of doubt be the Supplier’s premises or building yards;
“Duties” means any importation tax or duty or sum payable to any customs authority or facility or similar governmental authority arising from the Delivery of the Mooring Systems to the Customer, but excluding any VAT;
“Force Majeure Event” means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and including acts of God, storms, floods, high winds, volcanic eruptions, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, sanctions, import / export restrictions, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources, and which shall include (in respect of the Supplier’s performance hereunder) any failure or delay in the supply of any Third Party Items by any person or any failure or delay in the supply of Customer Deliverables by the Customer;
“Group” means in relation to a company, that company, any subsidiary or holding company of that company from time to time, and any subsidiary of such holding company from time to time;
“Installation Services” means Services in the form of the installation of Customer Items, or the acquisition and/or installation of Third Party Items, upon the Mooring Systems;
“Intellectual Property Rights” means any rights in or to patents, rights in or to inventions, rights in or to registered designs, copyright and related rights, database rights, design rights, topography rights, rights in trademarks, service marks, trade names and domain names, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Normal Working Hours” means 9.00am to 5.00pm in the United Kingdom;
“Order” means the Customer’s order for the supply of Mooring Systems and Services whether in the form of a purchase order or otherwise;
“Mooring Documentation Pack” means the detailed plan for the supply of the Mooring Systems and the Services, which shall include the Quotation, any Specifications, and Quality Assurance documentation;
“Quotation” means the quotation issued by the Supplier for the supply of the Mooring Systems and the Services;
“Representatives” has the meaning given in clause 17.2.1;
“Services” means the services to be provided by the Supplier under the Contract (which shall include the supply of the Mooring Systems, and if applicable the creation and supply of designs and drawings for the Mooring Systems);
“Specification” means any specification for the Mooring Systems agreed between the Supplier and the Customer and referenced in the Quotation, and which may include the designs, drawings and illustrations of the Mooring Systems prepared by the Supplier and referred to in the Quotation and/or Moorings Documentation Pack, and which may include particular safety requirements;
“Mooring System” means the assembly of ropes, chains, strops, anchors and all associated hardware used to secure the Customer’s structure in place at site Mooring Systems to be developed by the Supplier and supplied to the Customer hereunder;
“Supplier” means Gael Force Engineering Limited a company registered in Scotland with company number SC394817 whose registered office address is at 136 Anderson Street, Inverness, IV3 8DH;
“Supplier’s Acceptance” means the Supplier’s written acceptance of an Order;
“Supplier’s Representative” means the Supplier’s manager for the Project, appointed in accordance with clause 3.3;
“Term” means the term of the Contract, as determined in accordance with clause 18;
“Third Party Items” shall have the meaning set forth in clause 11; and
“VAT” means any value added tax, sales tax or any similar replacement or additional tax or duty payable on the supply of the Products or the Services, but excluding any Duties.
1.2 Clause headings shall not affect the interpretation of the Contract.

1.3 A person includes a natural person, and a corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 Any obligation in the Quotation on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.8 A reference to the Contract is a reference to the Contract as varied or novated (in each case, other than in breach of the provisions of the Contract) at any time.

1.9 References to clauses are to the clauses of the Quotation.

1.10 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.

2 Basis of contract

2.1 These terms shall apply to the Order to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether referenced in the Order, correspondence or otherwise), or which are implied by trade, custom, practice or course of dealing.

2.2 In the event of a conflict between the parts of the Contract the following order of precedence shall apply:

2.2.1 the Quotation (if any);
2.2.2 these terms and conditions;
2.2.3 the Suppliers' Acceptance;
2.2.4 the Order.
2.3 The Order constitutes an offer by the Customer to purchase the Mooring Systems and/or Services in accordance with these terms and conditions. The Customer shall ensure that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when the Supplier issues the Supplier’s Acceptance, at which point the Contract shall come into existence (the “Contract Date”). Quotations shall not constitute an offer. Quotations shall only be valid for a period of thirty (30) Business Days from their date of issue unless otherwise specifically stated thereon.

2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Mooring Systems or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the supply of the Mooring Systems and/or Services.

2.5 Any typographical, clerical or other accidental errors or omissions in the Contract shall be subject to correction without any liability on the part of the Supplier.

3 Supplier's obligations

3.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Mooring Systems to the Customer, in accordance in all material respects with the Contract.

3.2 The Supplier shall use reasonable endeavours to meet the performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence in respect thereof.

3.3 The Supplier shall appoint the Supplier’s Representative who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier’s Representative throughout the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.

4 Customer's obligations

4.1 The Customer shall:

4.1.1 co-operate with the Supplier in all matters relating to the Project and appoint the Customer’s Representative(s), who shall have the authority to contractually bind the Customer on matters relating to the Project, the Supplier and the Customer acknowledging that there may be several such persons, that each such person shall be entitled to so bind the Customer, and that such persons may be employed by third parties;
4.1.2 provide in a timely manner such assistance in connection with the Project (including where required access to the Customer’s premises and facilities, and delivery up to the Supplier in a timely manner of any Customer Deliverables) as is requested by the Supplier;
4.1.3 be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and the Delivery of the Mooring Systems;
4.1.4 use any Mooring Systems only for the purposes and within such conditions for which they have been manufactured, as disclosed in the Contract, and always in accordance with such other directions and limitations as the Supplier may give to the Customer, the Customer acknowledging that unless specified otherwise within the Contract the Mooring Systems will have been created by the Supplier only to specified dimensions and using specified materials (as set down in the Contract) without knowledge of the purpose to which the Mooring Systems may be put and accordingly in such an event the Supplier shall not be liable for any failure of the Mooring Systems to meet such purpose; and
4.1.5 following Delivery of a Mooring System maintain that Mooring System in accordance with the directions of the Supplier and good industry practice.
4.2 The Customer warrants and undertakes to ensure:

4.2.1 the Customer Information is complete and accurate as regards its requirements for the Mooring Systems, and otherwise;
4.2.2 all Customer Deliverables shall be complete and accurate in all respects, and fit for the purposes for which they are supplied.

5 Delivery

5.1 The Supplier shall procure that each Mooring System is Delivered to the Customer at the Delivery Location.

5.2 In the event that in the course of Delivery of a Mooring System, the Mooring System is required to be transported across a border or be cleared for transit by any customs authority or facility or similar, the Customer shall, if required by the Supplier, act as the importer of record in relation to such Mooring System.

5.3 Delivery of a Mooring System shall be complete upon its arrival at the Delivery Location.

5.4 If the Customer fails to accept delivery of a Structure, then, except where such failure or delay is caused by the Supplier’s failure to comply with its obligations under the Contract:

5.4.1 the Mooring System shall be deemed to have been Delivered at 9.00am local time at the Delivery Location on the Delivery Date;
5.4.2 the Supplier shall store the Mooring System until Delivery takes place;
5.4.3 the Supplier may dispose of the Mooring System, following deduction of all related costs and expenses (including insurance and the engagement of personnel to attend to the additional transport requirements relating to the Mooring System), then account to the Customer for the remainder of the Charges paid by the Customer to the Supplier in relation to the Mooring System.
5.5 Nothing in clause 5.4 shall act to negate the rights of the Supplier to recover any loss, cost, expense, damages or compensation from the Customer for the Customer’s breach of the Contract.

5.6 All Customer Deliverables shall be delivered by the Customer to the Supplier in such manner and to such location as the Supplier so directs.

6 Title and risk

6.1 Risk in Mooring System Delivered to the Customer shall pass to the Customer on Delivery.

6.2 Title to Mooring System Delivered to the Customer shall pass to the Customer on receipt by the Supplier in full and cleared funds of the whole of the Charges and of any other sums due by the Customer to the Supplier under any other contract between the Supplier and the Customer.

6.3 Following Delivery, and until title to a Mooring System has passed to the Customer, the Customer shall:

6.3.1 hold the Mooring System in trust for the Supplier;
6.3.2 not charge, grant security over or otherwise encumber the Mooring System; and
6.3.3 maintain the Mooring System in satisfactory condition and keep it insured against all risks for its full replacement value.

7 Acceptance and rejection

7.1 The Customer shall accept the Moorings System in accordance with the Acceptance Schedule (if any). In the event of a conflict between the Acceptance Schedule and the remainder of this clause 7 the Acceptance Schedule (if any) shall take precedence. In all other events the remainder of this clause 7 shall apply.

7.2 The Customer shall inspect all Mooring Systems within five (5) Business Days of Delivery, and inform the Supplier without delay of any defects evident therein. If the Customer does not so notify the Supplier of any defects the Customer shall be deemed to have accepted the Mooring Systems and shall not be entitled to reject any Mooring System due to any defect which should have been apparent on such inspection, and the Supplier shall have no liability for any loss, cost, expense or damage arising as a result of that defect.

7.3 In the case of a latent defect in any Mooring System which is not reasonably ascertainable during the period referred to in clause 7.1, the Customer shall notify the Supplier without delay following the latent defect becoming apparent, and in any case within five (5) Business Days thereof. In the event that the Customer does not so notify the Supplier, the Customer shall not be entitled to reject any Mooring System due to such latent defect and the Supplier shall have no liability for any loss, cost, expense or damage arising as a result of that latent defect.

7.4 In the event that the Customer notifies the Supplier of a defect in accordance with clause 7.1 or 7.3, subject always to the terms of clause 11, the Supplier shall at its option either replace, repair, or refund the part of the Charges paid by the Customer to the Supplier in respect of, such Mooring System, in full satisfaction of any and all liability of the Supplier to the Customer in respect of such defect.

7.5 The Customer’s Representative shall have the right, exercisable during Normal Working Hours on any Business Day and subject always to the prior written agreement of the Supplier (such agreement not to be unreasonably withheld), to inspect any Mooring System in the process of creation. In the event that the Customer exercises this right, the Supplier shall be entitled to appoint a representative to accompany the Customer’s Representative throughout their inspection visit. In exercising this right, whilst at the location where the inspection takes place, the Customer’s Representative shall comply with all applicable rules, regulations and policies, along with all directions given by or on behalf of the Supplier.

8 Change control

8.1 If following the Order Date either party wishes to amend or alter the Order, including the nature of the Mooring Systems, the Services, the Specification or the Charges (a “Change”), it shall submit details of the Change to the other in writing. Changes shall be dealt with in accordance with this clause 8.

8.2 Following the submission of a Change, the Supplier shall, within a reasonable time, provide details to the Customer of:

8.2.1 the likely time required to implement the Change;
8.2.2 any variations to Charges arising from the Change;
8.2.3 the likely effect of the Change on the Order; and
8.2.4 any other impact of the change on the terms of the Contract.
8.3 If the Change is required by the Customer, for example by way of the Customer requiring through a Customer Representative that the performance by the Supplier of its obligations hereunder is suspended or paused, the Change shall be deemed binding between the parties on expiry of a period of one Business Day following submission of the Change Response, unless the Change Response specifies a longer period.

8.4 If the Supplier requests a Change, the Customer shall not unreasonably withhold or delay consent to it.

8.5 Except as specified above, if the Customer wishes the Supplier to proceed with a Change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Charges and any relevant part of the Contract to take account of the change.

9 Charges and payment

9.1 Where the Services are Installation Services, unless agreed otherwise between the Supplier and the Customer and stated in the Quotation, the Charges shall be determined according (a) the cost to the Supplier of any Third Party Items acquired, and (b) the time spent by the Supplier installing the Customer Items and/or the Third Party Items according to the Supplier’s standard hourly rates in force from time to time. Where the Installation Services include the acquisition of Third Party Items, the Supplier shall also be entitled to levy an additional fifteen percent (15%) administration charge upon the cost of the Third Party Items. The Supplier shall be entitled to invoice the Customer for any such Charges as and when such Charges accrue.

9.2 The Charges are expressed exclusive of all VAT and Duties, for which the Customer shall be additionally liable, and which the Supplier shall add to its invoices at the appropriate rate.

9.3 The Customer shall pay each invoice submitted to it by the Supplier in full upon receipt, unless specified otherwise within the Contract.

9.4 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay any invoice by its due date the Supplier may;

9.4.1 charge interest on the relevant sum from the due date for payment at the annual rate of eight percent (8%) above the base lending rate from time to time of HBOS plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
9.4.2 suspend the provision of all Services until payment has been made in full.
9.5 Time of payment of the Charges shall be of the essence of the Contract.

9.6 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract despite any other provision, without prejudice to any right to claim for interest under the law, or any such right under the Contract.

9.7 If the Supplier so directs the Customer shall procure that payment of the Charges shall be secured by a bank guarantee or an irrevocable letter of credit satisfactory to the Supplier established by the Customer in favour of the Supplier and confirmed by a United Kingdom bank acceptable to the Supplier and valid for such period as the Supplier specifies, and which shall entitle the Supplier to payment on the presentation to such United Kingdom bank of the documents stipulated in relation thereto.

9.8 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.

9.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

9.10 All Customer Deliverables shall be supplied by the Customer to the Supplier at the sole cost of the Customer.

10 Quality standards

10.1 The Supplier shall use reasonable but commercially prudent endeavours to ensure all Services supplied to the Customer by the Supplier pursuant to the Contract shall be supplied with all skill and care and in accordance with standard industry practice, however the Supplier neither gives any warranty or guarantee or makes any representation as to the quality, standard or manner of supply of the Services.

10.2 The Supplier shall use reasonable but commercially prudent endeavours to ensure the Mooring Systems supplied to the Customer pursuant to the Contract shall:

10.2.1 conform to their Specification; and
and 10.2.2 be of satisfactory quality, the Customer acknowledging that unless specified otherwise within the Contract the Mooring Systems will have been created by the Supplier only to specified dimensions and using specified materials (as set down in the Contract) without knowledge of the purpose to which the Mooring Systems may be put and accordingly in such an event the Supplier shall not be liable for any failure of the Mooring Systems to meet such purpose otherwise the Supplier neither gives any warranty or guarantee or makes any representation as to the quality or fitness for purpose of the Mooring Systems or their conformance with any Specification.
10.3 The Customer acknowledges that the Supplier has manufactured the Mooring Systems on the basis of the Customer Information, including the information as regards the intended use of the Mooring Systems and the required performance characteristics of the Mooring Systems (including their ability to withstand specified levels of stress, pressure or load, for example through their use in adverse weather conditions, in inclement seas or in the region of other Mooring Systems or energy sources). The Customer acknowledges that in no event shall the Supplier be liable in any manner for any failure of the Mooring Systems to be fit for any purpose or for use within any conditions or subject to any stress, pressure or loads not referred to in the Contract.

10.4 The Customer acknowledges that the ability of the Moorings System to meet the standards set down in the Contract is contingent upon the Mooring Systems being properly maintained by the Customer. Accordingly, the Supplier shall not be liable for any failure of the Mooring Systems to meet the standards set down in the Contract where such failure has arisen as a result (directly or indirectly) of a failure of the Customer to properly maintain the Mooring Systems.

10.5 The Supplier shall not be liable for any failure of the Moorings System to meet the standards set down in the Contract where such failure has arisen due to normal wear and tear, normal degradation of the materials utilised within the Mooring Systems, for example galvanic corrosion or degradation, or fatigue induced failure.

10.6 The Customer warrants that the Customer Deliverables shall be fit for the purpose for which they are intended to be used, within the Project and in respect of the provision of the Services. The Customer shall on demand indemnify and keep indemnified the Supplier against any loss, cost expense or other liability incurred by the Supplier and arising out of or relating directly or indirectly to any breach of the warranty granted under this clause 10.4.

11 Third party items

If any part of a Mooring System is to be acquired by the Supplier for the Customer from a third party (a “Third Party Item”), the Customer acknowledges that unless the Supplier has agreed in the Contract to provide Services in the form of the specification and selection of that Third Party Item as fit for a particular purpose, the Supplier grants no warranty or guarantee in respect of such Third Party Item, the Customer shall not be entitled to reject such Third Party Item pursuant to the Contract (or any Mooring System supplied pursuant to the Contract on the basis of any defect, failure in or lack of fitness for purpose of that Mooring System due to that Third Party Item), and that the Supplier shall not be liable for any loss, cost, expense or damage arising (directly or indirectly) as a result of that Third Party Item. The Supplier shall, however, use reasonable endeavours to procure that any warranty or guarantee granted by the manufacturer of such Third Party Item is enforceable by the Customer.

12 Consents, permissions and applicable laws

12.1 The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the supply of the Mooring Systems and the Services to the Customer in the manner envisaged in the Contract.

12.2 The Customer shall obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to acquire, use or enjoy the benefit of the Services and Mooring Systems supplied to it.

12.3 The Customer shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to its acquisition, use or enjoyment of the benefit of the Services and Mooring Systems supplied to it.

13 Limitation of liability

13.1 This clause limits the financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:

13.1.1 any breach of the Contract;
13.1.2 any use made of Mooring Systems by the Customer; and
13.1.3 any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Contract.
13.2 Nothing in the Contract shall limit or exclude the liability of either party for:

13.2.1 death or personal injury resulting from negligence;
13.2.2 fraud or fraudulent misrepresentation.
13.3 Without prejudice to clause 13.2, and except as specified otherwise hereunder, neither party shall be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with the Contract.

13.4 The Supplier shall not be liable to the Customer for any loss, cost, expense or damage arising (directly or indirectly) due to the act or omission of any person not under the management of the Supplier.

13.5 Subject always to clauses 13.2, 13.3 and 13.4 the liability of the Supplier to the Customer under and in respect of the performance or non-performance of its obligations under the Contract shall be limited to the Charges paid to the Supplier by the Customer.

14 Insurance

The Supplier shall ensure the Mooring Systems against loss or damage whilst at risk of the Supplier. Otherwise, the Supplier shall maintain such insurances as are prudent and customary for a manufacturer of Mooring Systems.

15 Assignment and subcontracting

The Customer may not assign, transfer, subcontract or deal in any of its rights, benefits or obligations under the Contract without the prior written consent of the Supplier. The Supplier may in its sole discretion assign, transfer, subcontract or otherwise deal in any of its rights, benefits or obligations under the Contract without the prior written consent of the Customer.

16 Intellectual Property Rights

16.1 All Intellectual Property Rights resulting from the provision of the Mooring Systems and the Services shall be the absolute property of the Supplier. Whilst the Supplier shall not knowingly infringe the Intellectual Property Rights of any third party in its supply of the Mooring Systems and the Services, it does not warrant that the Mooring Systems and the Services shall not infringe the Intellectual Property Rights of any third party. The Supplier hereby grants (subject always to any applicable third party rights) to the Customer the right to use the Mooring Systems for the purposes envisaged in the Quotation free of charge and on a non-exclusive, worldwide basis. If the Supplier terminates the Contract pursuant to clause 18.2, this licence will automatically terminate.

16.2 The Customer warrants that the Supplier is entitled to make use of any Customer Deliverables for the purposes of providing the Services and the Mooring Systems to the Customer, and shall on demand indemnify and keep indemnified the Supplier against any loss, cost expense or other liability arising out of or relating directly or indirectly to any claim or allegation that the use by the Supplier of the Customer Deliverables for the purposes of providing the Services and the Mooring Systems to the Customer infringes or is likely to infringe the Intellectual Property Rights of any person.

17 Confidentiality

17.1 Save as expressly provided hereunder, each party undertakes that it shall not at any time during the Term and thereafter disclose to any person any confidential information disclosed to it by the other party concerning the business or affairs of the other party including information relating to a party’s operations, processes, plans, electronic drawing or other files, know-how, trade secrets, market opportunities and customers (“Confidential Information”), except as permitted by clause 17.3.

17.2 Each party may disclose the other party’s Confidential Information:

17.2.1 to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the party’s obligations under the Contract, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 17 as though they were a party to the Contract and the disclosing party remains responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
17.2.2 as may be required by law, court order or any governmental or regulatory authority.
17.3 The Supplier may disclose Confidential Information of the Customer to members of its Group provided that the Supplier takes all reasonable steps to ensure that such persons comply with the confidentiality obligations contained in this clause 17 as though they were a party to the Contract and the Supplier remains responsible for such persons’ compliance with the confidentiality obligations set out in this clause.

17.4 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party or to be implied from the Contract.

18 Term and termination

18.1 The Contract shall commence on the Contract Date and shall, subject to the provisions of clause 18.2, remain in effect until completion of the Project.

18.2 If the Customer becomes subject to any of the events listed in clause 18.3, or the Supplier 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 the Supplier, the Supplier may:

18.2.1 require the Customer to deliver up any Mooring Systems to which title has not passed to the Customer and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party or the location where such Mooring Systems are stored in order to recover them; and/or
18.2.2 terminate the Contract; or
18.2.3 suspend the performance of its obligations under the Contract, without incurring any liability to the Customer.
18.3 For the purposes of clause 18.2, the relevant events are:

18.3.1 breach by the Customer of a material term of the Contract;
18.3.2 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due;
18.3.3 the Customer 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 its 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) has any partner to whom any of the foregoing apply;
18.3.4 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;
18.3.5 (being an individual) the Customer is the subject of a bankruptcy petition or order;
18.3.6 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, diligence, 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 ten (10) Business Days;
18.3.7 (being a company) an application is made to the 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;
18.3.8 (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
18.3.9 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
18.3.10 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 clause 18.3.2 to clause 18.3.9 (inclusive);
18.3.11 the Customer suspends, threatens to suspend, ceases or threatens to cease carrying on all of its business, or substantially the whole of its business;
18.3.12 (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; or
18.3.13 (being a company) where the person who owns or controls the Customer enters into a state of affairs similar to any of those outlined in this clause 18.3.
18.4 The Customer shall notify the Supplier immediately if it becomes subject to any of the events listed in clause 18.3.

18.5 Termination of the Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.

18.6 On termination of the Contract, save as expressly provided otherwise hereunder:

18.6.1 all sums payable to the Supplier by the Customer under the Contract shall become immediately due and payable;
18.6.2 the Customer shall on request by the Supplier promptly return to the Supplier all documents and materials (and any copies) containing the Supplier’s Confidential Information;
18.6.3 the Customer shall promptly erase all the Supplier’s Confidential Information from its computer systems (to the extent possible); and
18.6.4 the Customer shall promptly on request, certify in writing to the Supplier that it has complied with the requirements of clauses 18.6.2 and 18.6.3.
18.7 On termination of the Contract any provision of the Contract which is intended either expressly or by implication to enter into or continue in force shall (as appropriate) enter into or remain in force.

19 Force majeure

19.1 Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under the Contract so long as, and to the extent to which, the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.

19.2 A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event:

19.2.1 notify the other party of the nature and extent of such Force Majeure Event; and
19.2.2 use all reasonable endeavours to remove any causes of such Force Majeure Event and resume performance under the Contract as soon as feasible.

20 Costs

Save as otherwise provided in the Contract, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of the Contract, and all documents ancillary to it.

21 Severance

21.1 If any provision of the Contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

22 Further assurance

Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things, or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to the Contract and the transactions contemplated by it.

23 Variation and waiver

23.1 Any variation of the Contract shall be in writing and signed by or on behalf of the parties by a person expressly authorised to execute the same.

23.2 Any waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

23.3 No failure to exercise or delay in exercising any right or remedy provided under the Contract or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.

23.4 No single or partial exercise of any right or remedy under the Contract shall prevent or restrict the further exercise of that or any other right or remedy.

24 Notices

24.1 A notice served under the Contract:

24.1.1 shall be in writing in the English language;
24.1.2 shall be signed by or on behalf of the party giving it by a person expressly authorised to execute the same;
24.1.3 shall be sent for the attention of the person, and to the address, given in this clause 24 (or such other address or person as the relevant party may notify to the other party in accordance with the provisions of this clause 24); and
24.1.4 shall be delivered personally or sent by commercial courier.
24.2 The addresses for service of notices are those addresses specified at the beginning in the Quotation.

24.3 A notice or any other communication given in connection with the Contract is deemed to have been received if delivered personally, at the time of delivery, or if sent by commercial courier, five (5) Business Days following despatch into the care of the courier.

24.4 For the purposes of this clause if deemed receipt under this clause is not within Normal Working Hours on any Business Day, the notice shall be deemed to have been received on commencement of Normal Working Hours on the next Business Day.

25 Rights of third parties

No term of the Contract shall be enforceable by a person who is not a party to the Contract.

26 Governing law and jurisdiction

26.1 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 Scots law.

26.2 The parties irrevocably agree that the courts of Scotland shall, subject to the foregoing, have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding the foregoing the Supplier shall be entitled to at its option seek recourse for any breach of the Contract by the Customer or enforcement of any judgement given against the Customer in any jurisdiction in which the Customer has assets or to which the Customer is subject.

Terms & Conditions for Marine Technology (GFMT)

Terms & Conditions for Marine Technology (GFMT)

Gael Force Marine Technology Ltd, hereinafter referred to as GFMT.

PREAMBLE

These terms and conditions of sale shall apply save as the express agreement accepted in writing by both parties, and together with the conditions of sale set forth in GFMT’s proposal shall be the only and entire contract for the sale to which the purchase orders relate.

1. QUOTATIONS

Any quotation does not commit GFMT unless otherwise agreed in writing. Product information and technical data as given in GFMT’s catalogues, prospectuses, circulars, advertisements and illustrated matters constitute an approximate guide, unless firmly confirmed by GFMT. Any documentation delivered with GFMT’s quotation shall be considered the property of GFMT.  Quotations are valid for 30 days from date of issue, unless otherwise confirmed in writing.

2. PURCHASE ORDERS

Purchase orders received by GFMT from the Purchaser are binding only if and when accepted in writing by GFMT, or when the goods called for have been delivered or invoiced by GFMT. The purchase order’s scope of supply specified in GFMT’s order confirmation shall be valid for delivery, and is binding for the Purchaser and GFMT. Any discrepancy in GFMT’s order confirmation are required to be intimated by the customer in writing within 10 days from the date of receipt of the goods to be valid. Whether or not the goods called for have been delivered, the Purchaser agrees that he is not entitled to terminate his order for convenience or otherwise cancel any order or part thereof subsequent to its confirmation by GFMT. If GFMT at their own discretion nevertheless should concede to termination, the Purchaser agrees that such termination shall be subject to the Purchaser compensating GFMT for all expenses relating to the purchase order and other documents and costs related thereto.  Under no circumstances shall the charges be less than 15% of the purchase price of the goods specified in the terminated order.

3. INVOICING AND PAYMENT

Invoicing shall always take place according to the price and terms of payment agreed between the Purchaser and GFMT. In case of late payment by the Purchaser, or if GFMT decides that the Purchaser’s ability to pay in due time can be reasonably questioned, GFMT is entitled to prepayment, withdraw credit granted, claim security for proper payment or withhold delivery until complete payment has been made GFMT reserves the right to charge interest on the due monies at the rate of 1% per month from the time said payment falls due until payment is received. Service performed by GFMT will be invoiced according to the GFMT rates prevailing for such services at the time of invoicing. Unless otherwise agreed, the terms of payment shall be net 30 days.

4. DELIVERY

The terms of delivery are Ex Works (inco-terms 1980). Delivery shall be deemed to have taken place upon shipment or if GFMT has notified the Purchaser that the delivery is ready for inspection or shipment. The date of delivery agreed between the Purchaser and GFMT is to be considered firm for both parties, but only when reflecting the original contracted scope of supply.  If the Purchaser has delayed the delivery or otherwise failed to perform duties so as to delay the delivery/shipment, or if the delivery has been delayed to circumstances beyond the control of GFMT, GFMT is entitled to have the date of the delivery extended to reflect the delay caused by the Purchaser or the Relief incident. If the Purchaser is the cause of the delay, GFMT is entitled to compensation from the Purchaser and is further entitled to terminate the order at GFMT’s discretion.

5. SHIPMENT

Mode of transport will be decided by GFMT, unless the Purchaser, in writing, requires specific means of transportation. The costs and charges related to the shipment will be for the Purchaser’s account unless otherwise agreed in writing.

6. NOTIFICATION OF CLAIMS

The Purchaser is requested to inspect the goods delivered upon receipt. If the Purchaser fails to perform such inspection and notify GFMT, in writing, of eventual claims within 10 days after receipt the Purchaser forfeits his rights to claim against GFMT relating to any defects of the goods delivered. Any claim made by the Purchaser must be accompanied and supported by all relevant data such as references to order, invoice, shipment, product and/or article numbers and photographic or documentary evidence of any defect.

7. WARRANTY

GFMT warrants that at time of shipment all products shall be free from defects in material and workmanship, and suitable for the purpose specified in the offer or quote from GFMT.

7.1 The agreed warranty period will be effective from the date of delivery, for the period stated in the GFMT’s order confirmation and in accordance with the period given by GFMT’s supplier.

7.2 Warranty services are performed at the discretion of GFMT and their suppliers, either by repair or by replacement of the goods in question.

7.3 The warranty is subject to the following conditions:

-  The goods must have been sold by GFMT.

- The goods must have been installed and commissioned in accordance with GFMT’s required standards or approved technical standards and specifications and for the purpose for which the goods were designed.

-   Any claim must be notified in writing to GFMT without delay upon discovery of a defect.

-  Defective parts have to be dismounted and forwarded to GFMT or its supplier on the Purchaser’s account, with a report stating the defect. The expenses relating to the return of parts or products by GFMT or it’s supplier to the consignee shall be carried by GFMT or its supplier.

7.4 The warranty does not apply to defects resulting from normal wear and tear, incorrect operation, fire or damage resulting from circumstances beyond what can be considered normal for the use of the goods.

7.5 The warranty is not transferable.

7.6 All related claims for damage or costs consequential or otherwise beyond the maximum value of the equipment supplied are hereby expressly excluded.

8. DISCLAIMER

GFMT disclaims any and all liability beyond the warranty undertaken in Article 7, or shortcomings relative to the goods delivered. GFMT further disclaims any liability for any direct or indirect loss occasioned thereby, unless it can be established that GFMT is guilty of gross negligence or wilful misconduct.

9. RELIEFS

Relief’s shall be defined as war or warlike conditions, fire, flood, unwarranted discontinuance of production at GFMT or at subcontractor’s works, shortage of energy or personnel, strike, lockout, lack of means of transportation, import or export restrictions and other restrictions imposed by the Government, technical or economical problems imposing undue burdens upon the fulfilment of an order. In case of Relief’s GFMT is relieved from their obligation to deliver, but only to the extent justified by the Relief’s incident. If the delivery is delayed more than 60 days due to Relief’s, the Purchaser has the right to terminate the part of the order which is marred by Relief’s.

10. INFORMATION AND PRODUCT CHANGE

Product information and data in manuals are issued by GFMT for technical guidance only, use and general information. This information will change from time to time and can not be relied on. This information is however given in accordance with GFMT’s best judgement and conviction at the time of publishing, but GFMT disclaims any and all liabilities arising from the reliance on  such information and manuals.  GFMT works continuously with the aim of improving and developing their products, and GFMT reserves the right to implement changes in specifications without notifying the Purchaser.

11. RETENTION OF TITLE

Until the Purchaser has paid in full for the goods comprised in the contract, the goods comprised in the contract remain the property of GFMT, although the risk passes to the Purchaser at the point of delivery named in the contract.

12. LAW AND VENUE

Any and all disputes relating to the purchase order and the terms and conditions referred to shall be governed by Scottish Law and the parties hereby submit to the jurisdiction of the Scottish Courts.

Terms & Conditions of Sale for Fusion Pens (GFF)

Terms & Conditions of Sale for Fusion Pens (GFF)

1. Interpretation

“Agreement” the terms and conditions set out below, (and any other special terms and conditions in writing) that the parties agree governs the relationship;

“Calendar Day” all days of a month including public holidays and weekends;

“Calendar Month” one of the 12 divisions of the Gregorian Calendar;

“Due Date” the day by which any payment owed by you must be paid, as detailed in clause 5.4 of this Agreement;

“Goods” the items that you wish to buy and we agree to sell to you;

“our/us/we” Fusion Marine Limited registered in Scotland under registration no SC310042, with registered office, The Marine Resource Centre, Barcaldine, By Oban, Argyll, Scotland. PA37 1SE.and our successors and assignees;

"WEEE Regulations" the Waste Electrical and Electronic Equipment Regulations 2006 (as amended) “you/your/yourself” the person (whether a company, individual or firm) purchasing our goods.

2. Form of Agreement.

2.1 You agree to buy the Goods from us under the terms and conditions of this Agreement. All issues relating to the Goods shall be controlled by this Agreement.
2.2 You cannot change any term of this Agreement without our consent in writing. We can change the Agreement by giving you notice in writing.
2.3 We nor our employees are bound by comments about the Goods unless confirmed by us in writing.
2.4 Occasionally we may accidentally send to you a document or pamphlet containing a typographical, clerical and/or some other error or omission. We do not accept liability to you for such errors or omissions and we reserve the right to amend any such error or omission.
2.5 This document sets out the Agreement between the parties and supersedes any terms previously notified. If any document of yours has terms and conditions on it, you agree that those terms and conditions shall not apply between the parties.

3. Orders and Specification

3.1 Any order from you to us is an offer by you to contract with us on the terms and conditions of this Agreement. A contract shall only exist between the parties when our authorized representative accepts your offer under the terms of this Agreement.
3.2 You shall ensure that any order you submit to us is accurate. It is your responsibility to check the accuracy of any specification or any information in relation to the Goods. You must tell us in time if there is any correction to be made by you or if there is further information we require to be able to perform the Agreement.
3.3 If you fail to comply with clause 3.2 we will be under no obligation to compensate you in any way, but you shall compensate us for any losses or expenses we may incur as a result of your failure to comply.
3.4 The quantity, quality, description or specification of the Goods shall be those set out in the quotation against which your offer to purchase the Goods is made.
3.5 We shall make and/or treat the Goods in the manner you request and you shall indemnify us for all loss, damage, costs, and expenses against us or incurred by us arising and/or from any claims for infringement of any intellectual property right when complying with your requests.
3.6 If you ask us to make the Goods, either to your or our specification, we reserve the right to change the Goods (if it does not materially affect the Goods’ quality or performance) so that they meet any applicable safety or legal requirements.
3.7 If you cancel (without our prior consent) an order that we have accepted you shall indemnify us in full for all our losses, including loss of profit, labour, material, damages, charges and expenses.

4. Price of the Goods

4.1 You shall pay for the Goods: i) any price quoted by us in writing; or ii) the relevant price published in our current price list, if the price was not separately quoted or the quoted price is not valid; or iii) our published export price (if the Goods are to be exported and the price was not separately quoted).
4.2 The price quoted to you for the Goods is valid for 30 days from the day the quote was given.
4.3 Upon expiry of the 30 days quotation period we may alter the price without giving you notice.
4.4 We reserve the right to increase the price of the Goods by written notice at any time before we deliver the Goods to you where it reflects an increase in costs to us that is due to any factor beyond our control. Examples of this would be currency fluctuations or significant increases in the costs of labour and/or materials.
4.5 We reserve the right to increase the price of the Goods where you change the:

4.5.1 Delivery dates; and/or
4.5.2 Quantities of the Goods required; and/or
4.5.3 Specification for the Goods requested by you; and/or
4.5.4 Your instructions or failure to give us adequate instructions or information causes us delay.

4.6 All prices are quoted on the basis that you shall collect the Goods from our factory gate.
4.7 If we agree to deliver the Goods to a site other than our factory gate we shall confirm this in writing and you shall pay our costs of which may include packaging, insurance and transportation costs.
4.8 We shall pay the cost of the delivery of Goods to you only where we have agreed to do so in writing or we have stated in our quotation or in the relevant price list.
4.9 All VAT on the price of the goods and our costs and expenses shall be additionally payable by you, unless otherwise specified.

5. Terms of Payment

5.1 We may invoice you for the price of the Goods at any time after we have either given the Goods to you, or we have made the Goods available to you, even where you may have failed to take possession of them.
5.2 If you fail to collect the Goods (having agreed to collect the Goods), we shall be entitled to invoice you for the price of the Goods from the time when we notified you that you may collect the Goods.
5.3 You must pay the invoice in full by cash or cleared funds by the Due Date and shall not make any deduction for any reason.
5.4 Our terms of payment are payment by:

5.4.1 The 25 Calendar Days of the month following the month in which we delivered the Goods you if you are paying by cheque; or,
5.4.2 The last Calendar Days of the month following the month in which we delivered the Goods to you if you are paying by bacs transfer or cash;
5.4.3 The 60th Calendar Day following the end of the month in which we delivered the Goods to you if we have expressly agreed to this in our acceptance of your order and you are paying by bacs transfer.

5.5 If you fail to pay on or by the due date in full by cash or cleared funds, we have a number of rights and remedies, which include the right to terminate this Agreement without liability to you and/or not to make any further delivery of the Goods to you.
5.6 We shall only issue you a receipt if you ask for one.
5.7 If you have more than one order with us, and you are making payments under those orders, we may allocate those payments against any of those orders we wish rather than how you allocate the payments.
5.8 We may charge you interest on any unpaid sums at the rate of 8% per annum above the base rate of the Bank of England, as it may be from time to time or under the late Payment of Commercial Debts (Interest) Act 1998 (as amended),
whichever is the higher, until payment is received in full. We may charge interest at this rate before and after judgment. A part month will be treated as a full month for the purpose of calculating interest.
5.9 We may set a credit limit for you at our absolute discretion. We will notify you of any changes to your credit limit from time to time.
5.10 We reserve the right to accept orders for Goods and/or to suspend or withhold the delivery of Goods if this would result in you exceeding your credit limit or the credit limit is already exceeded.

6. Delivery

6.1 Our obligation to deliver to you the goods is completed when we make the goods available for you to collect at our premises. You shall have met your obligation to take the Goods when you collect the Goods from our premises.
6.2 If we agree in writing to deliver the goods to you at a site other than our factory gate the delivery shall be deemed to have occurred at the other site as soon as the Goods are available at that site.
6.3 You shall not have the right to cancel this Agreement if we do not deliver the goods to you on the agreed dates or time. Any date or time given to you by us for delivery is a guide only. We shall not pay you any compensation and you shall not have any remedy for late delivery and time shall not be of the essence.
6.4 We shall be entitled to deliver the Goods to you earlier than the date agreed if we give you reasonable notice.
6.5 When we are delivering a large number of Goods to you, we shall not be in breach of this Agreement if we deliver up to 15% less or more of the Goods. The amount delivered shall be deemed to be the contract amount. You shall be obliged to accept the Goods and where there is a shortfall pay for the Goods using the unit price agreed. If you do not want the excess then you shall make the excess available to us for collection at your premises. You shall be responsible for any loss or damage to the excess amount. We shall collect as soon as it is convenient for us. We shall not have to compensate you for your costs of storage of the excess amount. You shall compensate us for loss or damage to the excess amount.
6.6 If the Goods are being delivered by instalments, each instalment shall be treated as an individual contract. If we fail to deliver any instalment or you claim that any instalment fails to meet the terms of this Agreement in some way, you cannot terminate the Agreement for the remaining instalments. Nor may you refuse to pay for any other instalments that are delivered and meet the agreed standard.
6.7 We have no liability to you if we fail to deliver Goods to you either due to reasons beyond our reasonable control or due to your fault.
6.8 If we fail to deliver Goods to you due to our own fault, you shall be entitled to buy alternative Goods from another supplier. If they cost more than the Goods we shall pay you the difference between the price of our goods and the alternative goods by way of compensation and we shall only pay you the difference if you bought the replacements from the cheapest available source and you provide us with written evidence of your quotations and subsequent purchase.
6.9 If you fail to collect the Goods or fail to give us adequate delivery instructions before the time for delivery of the Goods, even though we may have other remedies and rights, we shall be entitled to:

6.9.1 Store the Goods and you shall pay all of our costs associated with the storage until the Goods are delivered to you or sold;
6.9.2 Sell the Goods at the best price available and from the amount that we receive we shall be allowed to deduct all the costs have incurred in storing the Goods and/or selling the Goods. If there is any money left over after deducting our costs we shall return that money to you. We shall not have to invest the money or pay interest on the money held by us. If we sell the Goods and receive money for the Goods if the sum received does not cover our costs of storage and/or sale of the Goods, we may reclaim the shortfall from you. You shall also pay interest as described above on the shortfall.

6.10 You shall be responsible for the transportation of any Goods requiring disposal by us under the WEEE Regulations.
6.11 Upon receipt of the Goods from you in accordance with clause 6.10 above, we shall dispose of the Goods in accordance with our obligations under the WEEE Regulations.

7. Risk and Property

7.1 Risk in the Goods shall pass to you upon delivery, which shall be:

7.1.1 After the expiration of 3 Calendar Days after we inform you that the Goods are ready for collection from our premises; and/or
7.1.2 When we at your request deliver the Goods to an alternative address (even where you fail to take receipt).

7.2 You are responsible for the Goods once delivery has occurred under clause 7.1.
7.3 You shall not own the Goods even though we have given you physical possession of the Goods if we have not been paid in full for the Goods by the Due Date in accordance with clause 6.
7.4 If you have ordered Goods and receive them in instalments, you shall not own any of the Goods until you have paid us in full in accordance with clause 6 either by receipt of cash or cleared funds by us for each instalment of the goods.
7.5 Until payment in full of the price for all Goods has been received by us, the Goods shall be stored separately from any products or goods belonging to You or any third party and must be clearly marked and identified as being our property. You agree that Our employees and/or agents shall be entitled to enter your premises to check compliance with this clause.
7.6 You shall return the Goods to us if we ask you to return them where you or a third party has possession of the Goods, and we have not be paid in full, and the Goods are still in existence and you have not yet sold the Goods to another person who does not know about us.
7.7 If you fail to return the Goods to us, you authorise us to enter any premises whether yours or someone else’s to recover the Goods.
7.8 Where we have given you possession of the Goods, but we are still the owners of the Goods, you shall not use the Goods as any form of security or for any indebtedness. You shall not use the Goods to raise money for yourself or another person. If you do, all money owed by you to us including unbilled amounts becomes immediately due and payable. You agree to immediately pay to us all money owed by you under this Agreement or any other agreement with you.
7.9 Until legal ownership of the Goods has passed to you, you shall keep the Goods insured for the price at which the Goods were sold to you against all normal risks and shall account to us for any proceeds of such policy of insurance upon respect of the same. Any monies received from you by us in accordance with this clause shall not discharge your liability to pay the price for the goods plus interest accrued in accordance with clause 6 but shall be set off against any such liability.

8. Warranties and Liabilities

8.1 We shall compensate you if the Goods fail to meet the description agreed between the parties. We shall also compensate you if the Goods are not free from defects in material and workmanship for 12 months from the time we delivered the Goods to you.
8.2 We shall not compensate you if you asked us to make the Goods according to any instruction and the defect is due to your instruction.
8.3 We shall not compensate you for the following circumstances: for fair wear and tear, or damage caused by your deliberate or negligent use of the Goods, or your use of the Goods in abnormal working conditions, or your failure to follow our instructions written or oral, or the manufacturers instructions written or oral, or you fail to treat the Goods in a sensible and proper manner, or if you repair or alter the Goods without our written consent.
8.4 You shall not be entitled to any compensation from us if you have failed to pay us the full price for the Goods by the Due Date.
8.5 We shall not have an obligation to compensate you for parts, materials or equipment that does not comply with this Agreement manufactured by a third party. However you shall have the benefit of any warranty or guarantee that we are entitled to transfer to you.
8.7 We shall not have to compensate you if you do not notify us in writing about any defect with the Goods within 7 days of your receipt of the Goods. If you fail to do so you shall still have to pay for the Goods even if you refused to take receipt of the Goods.
8.8 If the defect was not noticeable on reasonable inspection at the time of delivery of the Goods then you have 7 days from when the defect was noticeable to notify us in writing of the defect.
8.9 If you accept receipt of the Goods and you do not notify us pursuant to clause 8.5, you shall not be able to return to us and/or refuse to pay.
8.10 If your complaint about the Goods is upheld, we may at our option replace the Goods (in whole or in part) free of charge, or refund the price of the Goods or a proportionate part of the price. Once we have replaced the Goods or paid a refund you shall have no further right to compensation or a remedy from us.
8.11 Nothing in this Agreement shall exclude our liability for personal injury, death, fraud or any other matter which we are not permitted to exclude by law.
8.12 We shall not be liable to you for any consequential loss, economic loss or loss of profit under any circumstances.
8.13 We shall not be held to be in breach of the Agreement nor shall we have to compensate you if due to circumstances beyond our reasonable control we cannot perform any of our obligations under this Agreement including without limitation Acts of God, explosion, flood, tempest, fire, accident war of threat of war, sabotage, insurrection, civil disturbance or requisition; act, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any Government or Parliament or Local Authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or
trade disputes (whether involving our employees or employees of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.

9. Indemnity

9.1 You agree to indemnify and keep indemnified us against any and all losses, proceedings, lost profits, damages, awards, expenses, costs (including increased administration costs and legal costs on a full indemnity basis), claims, actions and any other losses and/or liabilities suffered by us and arising rising out of our use of specifications, details and/or drawings supplied by you or from or due to your breach of contract, any tortious act and/or omission and/or any breach of statutory duty.

10. Default

10.1 If You:

10.1.1 Fail to make any payment to us when due;
10.1.2 Breach the terms of this Agreement and fail to remedy such breach after having been given 14 days to remedy the breach by us;
10.1.3 Persistently breach any one or more terms of this Agreement;
10.1.4 Pledge or charge any Goods which are our property, or cease or threaten to cease to carry on business, or propose to compound with your creditors, apply for an interim order under Section 252 Insolvency Act 1986 or have a Bankruptcy Petition presented against you, enter into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of your assets, or take or suffer any similar action in any jurisdiction;
10.1.5 Appear to us due to your credit rating to be financially inadequate to meet your obligations under the Agreement; and/or
10.1.6 Appear reasonably to Us to be about to suffer any of the above events;
then we shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.2 below.

10.2 If any of the events set out in clause 10.1 above occurs in relation to you then:

10.2.1 we may enter, without prior notice, any of your premises (or premises of third parties with their consent) where Goods owned by us may be and repossess and dispose of or sell any Goods found which are owned by us so as to discharge any sums due to us under this Agreement or any other agreement with you;
10.2.2 we may require you not to re-sell or part with the possession of any Goods owned by us until you have paid in full all sums due to us under this Agreement or any other agreement with you;
10.2.3 We may withhold delivery of any undelivered Goods and stop any Goods in transit;
10.2.4 We may cancel, terminate and/or suspend without liability to you any agreement with you; and/or,
10.2.5 All monies owed by you to Us shall forthwith become due and payable.

11. General

11.1 If either party want to serve a notice on the other party that notice must be in writing and sent to any premises that have been identified as the place for the service of notices. If no place has been identified then notice may be sent to the registered office or principal place of business of the other party.
11.2 If we waive one breach of the Agreement, it does not mean that we shall forgive any other breaches of the Agreement, and we shall be entitled to take legal action against you for any new breaches of the Agreement.
11.3 If any words in this Agreement make the Agreement invalid or unenforceable, if however those words were to be omitted the Agreement would be lawful and enforceable, you agree with us that those words will be deleted and the rest of the Agreement would be valid and enforceable.
11.4 The parties agree to choose an arbitrator to judge any dispute between the parties.
11.5 If the parties cannot agree on an arbitrator, then either party may ask the President of the Law Society to nominate an arbitrator.
11.6 Scottish law shall apply to the agreement and its interpretation. Only the Scottish Courts may judge any disagreement between the parties.
11.7 You shall not transfer any of your rights or duties or subcontract any rights or duties without our written consent. We may pass any of our rights or duties or subcontract them without your written consent.
11.8 A person who is not a party to this Agreement shall not have any rights under the Contracts (rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement provided that this does not affect any right or remedy of the third party which exists or is available apart from that Act.

Terms & Conditions for Gael Force Boatbuilding (GFB)

Terms & Conditions for Gael Force Boatbuilding (GFB)

SUBJECT TO WHICH ALL WORK IS UNDERTAKEN AND FACILITIES PROVIDED

1. We and our employees accept no responsibility for loss, damage or delay arising from any cause whatsoever unless such loss, damage or delay was caused by, or resulted from, our negligence or deliberate act or that of those for whom we are responsible. Subject to that exception, all vessels and gear are repaired, worked on, moved, stored or otherwise managed and kept at the sole risk of the Owner. Customers should therefore ensure that their vessel and/or property are adequately insured against all risks; they also should ensure that they are themselves adequately insured against third party risks as they may be liable for damage caused by their vessels or themselves about the premises.

2. Subject to express agreement to the contrary any delivery quoted is given in good faith and is not guaranteed but delivery shall be within a reasonable time of any date specified, bearing in mind all the circumstances of the case.

3. Estimates, any estimate is compiled in good faith from the information, written and verbal, provided by the customer and is based upon our best interpretation of the work content involved. It includes for all works and associated works, so far as can be reasonably foreseen, and assumes good boatyard practice in the execution of such works. No allowance can be made for unforeseen problems. If, in the execution of the works, unforeseen problems arise, and/or potential or actual over-runs occur, the customer will be notified as soon as practicable, and the customer shall always have the right and responsibility to decide further course of action.

4. This clause applies only where we supply goods to a person who buys in the course of business (“a business customer”).

(a) No article supplied by us to a customer shall carry any warranty or condition of sale, expressed or implied, as to quality, or as to fitness for any particular purpose.

(b) No proprietary article specified to us by name, type and/or size by a business customer shall carry any such warranty or condition.

(c) In no event do we accept liability to a business customer for consequential damage beyond replacement of any fault or unsuitable article supplied.

5. In the interests of safety and expedience, we reserve the right to move any vessel and or/gear at our discretion.

6. All persons using any part of our premises and/or facilities for whatever purpose and whether by invitation or otherwise do so at their own risk, unless any injury or damage to person or property sustained within the premises and/or facilities was caused by/or resulted from, our negligence or deliberate act or that of those for whom we are responsible.

7. We reserve the right to charge the Boat owner a levy per person, per day for any crew/employees or sub-contractor engaged directly by Boat owner or Agents -

8. (a) Subject to paragraph (b) of this condition. Owners, crew, and owner’s representatives may carry out work within their own vessels on the premises provided that the nature and extent of such work has been intimated and agreed in advance with the Operations Manager or Operations Engineer, this is subject to Health & Safety requirements and Risk assessments. A daily charge will be made for each person, per day.

Sub-Contractors, we reserve the right to charge the boat owner (for any Sub-contractor retained by the Boat owner) provided that the nature and extent of such work has been intimated and agreed in advance with the Operations Manager or Operations Engineer, this is subject to Health & Safety requirements and Risk assessments. A daily charge will be made for each sub-contractor, per day.

(a) Subject to paragraph (b) of this condition no work shall be done to the vessel whilst on our premises or moorings, without our prior written consent other than minor running repairs or minor maintenance of a routine nature by the Owner, his regular crew, or his family. Such works shall not cause any nuisance or annoyance to any other users of our premises or moorings or any other person residing in the vicinity.

(b) Prior written consent for work to be carried out on our premises will not without good cause be withheld where:

(i) the work to be carried out is work for which we, or our concessionaires or those who normally carry out work on our behalf would normally employ a specialist sub-contractor will be hired by the Gael Force Boatbuilding Ltd and all costs incurred including administration will be passed on to the customer or

(ii) The whole of the work is being carried out under warranty by the manufacturer and/or supplier of the vessel or any part of her equipment to which the warranty relates.

9. Vessels stored at seasonal rates or in mud berths will be launched or put afloat as near end of the seasonal period as in our opinion, tide, weather conditions and available facilities permit and such in sequence as to avoid moving other vessels for this purpose and also so as to make the most economical use of the facilities at our disposal. At the Owner’s request we will if possible, launch his vessel at any suitable tide and weather conditions, but the cost of moving other vessels for this purpose and/or any attendant expenses must be paid for by the Owner.

10. Subject to express agreement in writing to the contrary, quotations given by us are subject to the cost of labour and materials remaining at the same level as those prevailing at the time of the quotation, and the quoted price shall be increased or decreased by the amount by which the actual cost of labour, materials and overheads has increased or decreased by reason of variation of the aforesaid levels since the date of the quotation. However, the quotation shall not be adjusted to meet increased costs which would not have occurred but for our failure to proceed with the work with reasonable despatch.

11. In the absence of any written agreement or arrangement to the contrary delivery is given at our yard or in the water adjacent thereto.

12. Quotations cover only the work and/or items specified thereon, and all additions, alterations, waiting time and any additional costs due to modified instructions will be charged to the customer at ruling prices. If, in the course of executing any work, we find any defect in a vessel and/or its gear that in our opinion should be rectified without delay and before the Owner’s consent can be obtained, we reserve the right to carry out such necessary repair at our discretion and to charge same Owner. Notice of any such rectification will be forwarded to the Owner forthwith.

13. Subject to the value of the work, a daily slipway usage rate will be charged.

14. Unless specifically agreed prior to commencement of work, works must be paid for in full prior to departure of the vessel. If, for whatever reason the Gael Force Boatbuilding Limited cannot provide a full invoice prior to the vessel’s departure then a provisional invoice for an appropriate proportion of the works will be raised and will require to be settled prior to departure. Any works invoiced post departure will require to be settled in full within fourteen days of the invoice. If the vessel or goods are not removed within 10 days of our notifying the Owner to remove such goods or vessel, we reserve the right to charge for mooring / storage costs.

15. Subject to any agreement to the contrary, we have the right to exercise a general lien upon any vessel and/or its gear and equipment whilst in or upon our premises or afloat at any of our moorings, until such time as any moneys due to us from the Owner in respect of such vessel and/or its gear whether on account of storage or mooring charges, work done or otherwise shall be paid.

16. Acceptance by us of goods (including vessels and/or their engines, gear and equipment) for repair or other treatment or for moorings 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 exercisable in certain circumstances. Such sale will not take place until we have given notice to the Owner in accordance with the Act.

For the purpose of the Act it is hereby recorded that: -

(i) Goods for repair or other treatment are accepted by us on the terms that the Owner will take delivery of the goods in accordance with Clause 9 of these terms when repair or other treatment has been carried out.

(ii) Our obligations as custodian of goods accepted for mooring or storage ends upon the expiry or lawful termination of the grant to the Owner of facilities for mooring or storage.

17. Save as provided for business customers under Clause 3, all goods are supplied with the benefit of the appropriate undertakings (particularly as to the conformity of goods with description or sample, and as to their quality or fitness for a particular purpose) which are implied by the Sale of Goods Act 1893 as amended. Nothing in these terms shall affect those statutory rights.

18. Except where notice is required to be given under Clauses 10 or 13, and except as regards Clause 12, the “Owner” shall include a Charter, Master or Authorised Agent.

19. Subject to express agreement to the contrary, all orders written, or verbal are accepted on the understanding that the foregoing terms of business shall apply to each and every transaction.