1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following terms shall have the meaning assigned to them below:
"Charges" means the charges payable by the Customer under the Contract;
"Company" means Boat Transport Limited;
"Conditions" means these Terms and Conditions of Supply and all provisions contained therein;
"Contract" means a contract between the Company and the Customer for the supply of Services, as evidenced by the Company’s written acknowledgment of the Order;
"Customer" means any person, firm or company with whom the Company contracts in respect of the performance of the Services;
"Goods" means the vessel (including all and any parts, fixtures, accessories and/or contents thereof) in respect of which the Services are to be provided;
"Order" means the Customer’s order for Services, which shall be deemed to have been placed with the Company when the Customer accepts the Quotation either verbally or in writing;
"Preparation Guide" means the detailed instructions for preparation of the vessel prior to commencement of the Services that will be provided by the Company to the Customer following the Company’s receipt of the photographs of the vessel required to be provided by the Customer under clause 3.1 (b);
"Quotation" means the quotation for the Services which is provided by the Company to the Customer;
"Services" means the carriage of Goods by road by the Company in accordance with the Contract.
1.2 A reference to a clause is to a clause of these Conditions. Clause headings shall not affect the interpretation of these Conditions.
1.3 Any reference to "parties" means the parties to the Contract and "party" shall be construed accordingly.
1.4 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 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 or following those terms.
1.6 Words in the singular include the plural and in the plural include the singular.
1.7 References to the "collection address" and the "delivery address" shall be deemed to refer to the boatyard or marina where the Goods are to be respectively collected and delivered under the Contract.
1.8 Any reference to "writing" or "written" includes faxes and emails, subject to the provisions of clause 13.3.
2. APPLICATION OF CONDITIONS
2.1 All Quotations are given subject only to these Conditions, which shall be incorporated into the Contract and which shall prevail to the exclusion of any other terms including any conditions, warranties or representations written or oral, express or implied, even if contained in any of the Customer’s documents which purport to provide that the Customer’s own terms shall prevail. Any representations about any Services shall have no effect unless expressly agreed in writing and signed by the Company’s authorised signatory.
2.2 Any Quotation is given on the basis that no Contract shall come into existence unless and until the Company acknowledges the Order in writing.
2.3 Any Quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.4 The description of the Services shall be as set out in the Company’s acknowledgment of the Order.
2.5 Any typographical, clerical or other accidental errors or omissions in any sales literature, price list, Quotation, acknowledgment of an Order, invoice or other document or information issued by the Company shall be subject to correction without any liability on the Company’s part.
2.6 All descriptive matter, images and advertising issued by the Company and any descriptions or illustrations contained in the Company’s website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them and they shall not form part of the Contract.
2.7 The Company has no obligation to accept any variation to the Contract requested by the Customer, whether by addition, substitution or omission and no such request shall be deemed to be accepted in the absence of the Company’s written agreement to the variation.
2.8 The Contract may not be cancelled by the Customer without the Company’s written consent and subject to the payment to the Company of all costs, charges and expenses incurred or likely to be incurred by the Company arising from, occasioned by, or related to the cancellation of the Contract, including charges in respect of lost profit.
2.9 No cancellation rights under the Consumer Contracts Regulations 2013 (the "CCR") shall be deemed to apply in respect of the Contract, because the Contract is a contract for the transport of goods and such contracts may not be cancelled under the CCR.
2.10 Any information which is or which could reasonably be supposed to be confidential and which is provided by the Company to the Customer under or in connection with the Contract ("Confidential Information") is provided for the purposes of the Customer only and may not be disclosed by the Customer or used by the Customer other than in furtherance of the performance of the Customer’s obligations under the Contract.
2.11 The Customer warrants that it is either the owner of the Goods or the authorised agent of the owner of the Goods and accepts these Conditions not only for itself, but also as agent for and on behalf of the owner of the Goods.
3. CUSTOMER'S OBLIGATIONS
3.1 The Customer warrants and undertakes that:
(a) it shall ensure that the description of the Goods is complete and accurate, including in respect of all information pertaining to the nature, type, condition, length, width, height and weight of the vessel;
(b) any photographs of the vessel that the Company requests the Customer to provide for use in compiling the Preparation Guide shall be promptly provided and shall fully and accurately reflect the dimensions, characteristics, features and condition of the vessel;
(c) it shall promptly provide the Company with complete and accurate instructions and information required to enable the Company to properly perform the Services and shall ensure that collection and delivery addresses are clearly stated;
(d) it shall make the keys to the vessel available for collection by the Company at the time and place nominated by the Company, together with any other documents and authorisations requested by the Company;
(e) the Goods shall, upon presentation to the Company, be safe, undamaged and free from defects and shall be prepared for carriage on a trailer in accordance with the requirements set out in the Preparation Guide in all respects, so as to be safely carried and handled and so as to avoid any damage to the Goods or any loss, destruction, or deterioration of the Goods during the performance of the Services and so as to avoid any damage or injury to any other goods, property or persons, howsoever arising;
(f) it shall ensure that anything inside the vessel which is not affixed to the interior of the vessel (including furniture, crockery and any other loose items) is firmly secured or stowed away, as the Company shall have no liability whatsoever in the event of any damage to or loss, destruction or deterioration of any items within the vessel occurring during the performance of the Services;
(g) it shall ensure that the outside and inside of the vessel is in a clean state and in particular that the interior of the vessel is clean and tidy such that the Company will not (for safety purposes) have to clean up the interior and/or remove any rubbish or other items therefrom before performing the Services;
(h) it shall promptly inform the Company of any special requirements for the transportation or handling of the Goods and if the Customer fails to do so, the Company shall have no liability whatsoever in the event of any damage to the Goods or any loss, destruction or deterioration of the Goods arising from any non-compliance with any such requirements.
(i) It shall be solely liable for all additional costs and expenses incurred by the Company in complying with any special requirements referred to in sub-clause (h);
(j) it shall ensure that any equipment that it provides to the Company to enable the Company to provide the Services is fit for purpose, including the requirement that any trailer provided by the Customer for use in transporting the Goods shall be roadworthy and shall have been serviced within the previous six months, as any damage and/or delays caused due to the Customer’s trailer failing shall be chargeable.
4. COLLECTION AND DELIVERY
4.1 All labour, equipment or plant required for the purposes of loading and unloading the Goods shall be provided by the Customer or on the Customer’s behalf. For the avoidance of doubt, the Customer shall be solely responsible for arranging for the vessel to be:
(a) lifted onto the trailer at the collection address; and
(b) lifted off the trailer at the delivery address.
4.2 The Services shall be deemed to commence upon the completion of the loading of the Goods onto the trailer at the collection address.
4.3 Once the Goods have been loaded onto the trailer, the Company will undertake final preparation of the Goods for transport, which will include securing ropes and fenders and checking the covers on the vessel. Nothing in this clause 4.3 shall relieve the Customer of any of its obligations under clause 3.1 (e).
4.4 The Services shall be deemed to terminate upon the Goods being tendered for delivery at the delivery address.
4.5 The Company reserves to itself full liberty as to the means, route and procedure to be followed in the performance of the Services.
4.6 If for any reason the Customer or persons at the delivery address refuse or fail to accept delivery of the Goods when they are tendered for delivery by the Company or in the event that the Company is unable to deliver the Goods at the appropriate time because the Customer has not provided adequate instructions, information, documents, authorisations or similar, then;
(a) the Company shall be deemed to have performed the Services;
(b) the Company may, if the Company deems it necessary, arrange to store the Goods at the Customer’s sole risk and the Customer shall be liable for all related costs and expenses (including any additional haulage, storage and insurance costs/expenses);
(c) the Company shall be entitled to provide notice to the Customer at any time pursuant to clause 10.6 and thereafter sell or otherwise dispose of the Goods in accordance with the terms thereof.
5.1 All national transport which is undertaken solely within the United Kingdom will be carried out under the Company’s insurance policy, which provides all risks coverage in respect of the Customer’s vessel for up to a maximum amount of £250,000.00 of the vessel’s value. The Company’s insurance policy does not cover:
(a) loss or damage to the vessel during transport which is caused by trees (the risk of which cannot be assessed);
(b) loss or damage to any parts of the vessel that may fall off during transport (because such parts are not correctly fitted);
(c) loss or damage to any parts of the vessel that may be stolen and any resulting loss or damage to the vessel;
(d) loss or damage consisting of minor scratches to the vessel; or
(e) loss or damage to personal effects.
5.2 All international transport will be carried out in accordance with the International Carriage of Goods by Road ("CMR") rules, under which the limit of indemnity is £8,000.00-£10,000.00 per ton of goods carried, depending on the strength of the pound sterling. For the avoidance of doubt, a load that is moving from, for example, Marseilles (F) to Birmingham (UK) will be classified as an international movement for the entire journey.
5.3 A summarised copy of the CMR rules and a copy of the Company’s insurance policy are available from the Company upon request; it is the responsibility of the Customer to fully acquaint itself with their terms and the Customer shall be deemed to accept such terms.
5.4 The Customer may arrange separate insurance through its own insurers if additional coverage is required, in which event the Customer warrants that it will ensure that the insurance policy names the Company as a co-insured and incorporates a term preventing the insurers from pursuing any claim against the Company, whether under rights of subrogation, assignment or otherwise; any failure on the part of the Customer to comply with this clause 5.4 shall constitute a breach of the Contract and the Company shall be relieved of all liability for any loss or damage to the Goods whatsoever and howsoever arising.
5.5 Without prejudice to any provision of clause 5.4, the Customer is strongly recommended, due to increased incidences of theft, to procure their own insurance in order to cover any contingencies which may fall outside the scope of this clause 5.
6. LIMITATION OF LIABILITY
6.1 The Company’s liability for loss, theft, destruction or damage to Goods howsoever and whensoever arising during or in connection with the performance of the Services shall be limited in accordance with the provisions of clause 5.
6.2 Due to the technical demands of abnormal load transportation, the Company shall have no liability whatsoever (whether arising in contract, tort or otherwise) for the late delivery of Goods or for any other delay whatsoever and howsoever arising. All collection and delivery times or dates provided by the Company are estimates only and are provided solely as a guide to assist the Customer. The time for collection and delivery shall not be of the essence.
6.3 Subject to the provisions of clause 6.1, the liability of the Company in respect of any claim for any other loss or damage whatsoever and howsoever arising shall not exceed the amount of the Charges in respect of the Services to which the claim or claims relate.
6.4 Nothing in these Conditions shall exclude or limit the Company’s liability for fraud, or for death or personal injury caused by its negligence or for any other liability which it is not lawfully permitted to exclude or limit.
6.5 The Company warrants that the Services shall be undertaken with reasonable skill and care. All other warranties, conditions and other terms implied by statute or common law that may otherwise apply to the Company (save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
6.6 Subject to the provisions of clause 6.4, the Company shall have no liability whatsoever (whether arising in contract, tort or otherwise) for any loss of profits, loss of opportunity, loss of contracts, loss of goodwill or reputation, loss of business, loss of anticipated savings; or for any special, indirect or consequential loss or damage of any kind.
6.7 In the case of loss, theft, destruction of or damage to any part of the Goods occurring during international transport, the weight to be taken into consideration in determining the amount to which the Company’s liability is limited under clause 5.2 shall be the gross weight of that part only, regardless of whether the loss, theft, destruction or damage affects the value of any other part(s) of the Goods.
6.8 The Company shall be entitled to request and receive documentary evidence of the weight and value of the whole of the Goods and of any part thereof lost, stolen, destroyed or damaged.
The Customer shall indemnify and hold the Company harmless against all claims, liability (whether arising in contract, tort, duty or otherwise), damage, loss (including direct, indirect and consequential loss), costs and expenses (including legal costs):
(a) made by or against or incurred by the Company arising out or in respect of any breach of contract or these Conditions or negligence, misconduct or breach of duty by the Customer or the Customer’s agents (and for the purposes of these Conditions, the owners or operators of the boatyard or marina where the Goods are to be respectively collected and delivered under the Contract shall be deemed to be the Customer’s agents); or
(b) arising out of the Company acting in accordance with the Customer’s instructions or those of its agents.
The Company may, in its absolute discretion, sub-contract or otherwise delegate the performance of the Services, whether in whole or in part.
9.1 The Charges shall be the charges set out in the Company’s acknowledgment of the Order.
9.2 The Company reserves the right to increase the Charges at any time, upon written notice to the Customer, to reflect any increase in the cost of performing the Services to the Company, where such increase is beyond the reasonable control of the Company, to include foreign exchange rate fluctuations, changes in any currency regulations, changes in the rate of tax or duty, and any increase in the cost of labour, materials, fuel, tolls, ferry tickets, permits, or other overheads.
9.3 In the event of:
(a) any change to or discrepancy, error or omission in any information (including photographs) provided to the Company in respect of the description of the Goods; or
(b) any change to or discrepancy, error or omission in the instructions or information provided to the Company in order to enable the Company to properly perform the Services; or
(c) the Customer’s breach of or non-compliance with any of its warranties and undertakings in clause 3; or
(d) any delay or other inconvenience caused by the Customer;
then the Company shall be entitled to charge the Customer for any additional or consequential charges, costs or expenses arising therefrom, occasioned thereby or otherwise related thereto.
9.4 Without prejudice to the generality of clause 9.2 or 9.3, additional charges shall be payable at a rate of £1.00 per minute in the event that:
(a) the Company is required to wait for more than two hours at either the collection or the delivery address from the time of arrival of the Company’s vehicle until:
(i) in the case of collections, the Goods have been loaded onto the trailer; or
(ii) in the case of deliveries, the Goods have been unloaded from the trailer; or
(b) through no fault of the Company, final preparation of the Goods for transport in accordance with clause 4.3 takes longer than 40 minutes.
9.5 The Charges are exclusive of VAT, which shall be charged by the Company and paid by the Customer at the appropriate rate.
10. TERMS OF PAYMENT AND LIEN
10.1 The Company may issue an invoice for the Charges at any time following the Company’s acknowledgment of the Order.
10.2 Once the Goods have been loaded onto the trailer at the collection address, the Charges shall be payable in full over the telephone by debit or credit card. There are no charges for debit card payments, but a 1.7% surcharge shall apply to all credit card payments.
10.3 The Customer shall pay the Company a non-refundable deposit in the amount stated in the invoice for all international journeys upon receipt of invoice; the balance of the Charges shall be payable at the time and in the manner stated in clause 10.2.
10.4 Time for payment shall be of the essence. If the Customer fails to make payment at any time stipulated in the foregoing provisions of this clause 10, then without prejudice to any other remedies available to the Company:
(a) the Company may charge interest on the total outstanding amount from the due date of payment until the actual date of payment, at the rate of 5% above the base rate of Barclays Bank plc per month, calculated on a daily basis;
(b) the Company may suspend or cancel performance of all or any of the Services at any time in its absolute discretion and exercise a lien over the Goods in accordance with clause 10.5;
(c) the Company may demand advance payment for any other services which the Company has agreed to undertake.
10.5 The Company shall have a general lien against the Customer in respect of all Goods in the Company’s custody or control for all sums due at any time from the Customer on any account whatsoever. Storage charges shall continue to accrue on any Goods detained under lien and the Company shall be entitled to payment of such storage charges and any other expenses reasonably incurred during the period in which the Goods are detained under lien.
10.6 Without prejudice to the generality of the foregoing, the Company may at any time upon giving 30 days’ notice in writing to the Customer, require the Customer to remove the Goods from the custody or control of the Company and to pay all sums due to the Company. In the event that the Customer fails to remove the Goods and to pay all sums due to the Company within the prescribed notice period, the Company shall have the power to sell or otherwise dispose of the whole or part of the Goods without further notice and may apply the proceeds of sale towards payment of all sums due to the Company and any expenses incurred by reason of the said sale or disposal. Any surplus will be paid to the Customer without interest.
10.7 The Customer shall pay to the Company all sums due without reduction or deferment on account of any claim, counterclaim or set-off.
10.8 The Company reserves the right, upon notice in writing to the Customer, to amend its terms of payment at any time.
10.9 For the avoidance of doubt, the rights of the Company under this clause 10 shall not be affected in the event that the Contract is terminated in accordance with the provisions of clause 11.
10.10 Without prejudice to any of the foregoing provisions of this clause 10, the Company may vary its payment terms in writing at any time and clauses 10.1, 10.2 and 10.3 shall be deemed to have been amended to the extent necessary to give effect to the variation (if any).
11.1 Notwithstanding any other provision in these Conditions, the Contract may be terminated by the Company with immediate effect upon written notice to the Customer if:
(a) the Customer commits any breach of its obligations under the Contract and fails to remedy the same within three days of receipt of a written notice from the Company specifying the breach and requiring it to be remedied; or
(b) any payment due under the Contract is not made in accordance with the provisions of clause 10; or
(c) the Customer goes into liquidation, becomes insolvent or bankrupt, makes a voluntary arrangement with its creditors, or has a receiver or administrator appointed, or the Company reasonably believes that any such event is likely to occur.
11.2 Termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination.
12. FORCE MAJEURE
12.1 The Company shall not be deemed to be in breach of the Contract nor incur any liability whatsoever to the Customer in the event that the non-performance, part-performance or delay in the performance of the Services or failure to perform any obligation under the Contract is caused by an event beyond the reasonable control of the Company (a "Force Majeure Event") which shall include the following events:
(a) Acts of God, natural or other disasters, explosion, flood, fire, inclement weather or road accident; or
(b) war, hostilities (whether declared or not), invasion, acts of foreign enemies; or
(c) rebellion, revolution, insurrection, terrorist activity, military or usurped power; or
(d) riot, civil commotion or disorder; or
(e) acts, restrictions, regulations, by-laws, refusals to grant any licenses or permissions, prohibitions, or measures of any kind on the part of any governmental authority or agency; or
(f) strikes, lock-outs, or other industrial actions or trade union disputes of whatever nature; or
(g) seizure, arrest or forfeiture under legal process; or
(h) import or export regulations or embargoes; or
(i) marine transportation failures or delays; or
(j) port or border closures or blockades; or
(k) difficulties in obtaining labour, fuel, or equipment.
12.2 Should the Force Majeure Event continue for a period in excess of 60 days then the Customer shall be entitled to give the Company notice in writing to terminate the Contract.
13.1 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
13.2 No forbearance or indulgence granted by the Company to the Customer shall in any way limit any right of the Company under these Conditions.
13.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
13.4 Neither the Company nor the Customer intends that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
13.6 Any dispute arising under or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application by either party to the President for the time being of the Law Society whose decision as to the type, qualifications and experience of such arbitrator shall be final and binding on the parties. The costs of the arbitrator shall be borne by the parties as he directs and his decision on the issue in dispute shall be final.
13.7 The Contract shall be subject to and construed under the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales for that purpose.