TERMS AND CONDITIONS
Definitions
In this Agreement the following terms shall have the following meanings:
Company means Tyrell Bay Marina Carriacou.
Customer means the person(s) named on the first page of this agreement and shall also include a charterer, master, agent or any other person for the time being lawfully in charge of the Vessel.
Customer Property means the Vessel as particularly described and shall include all articles, equipment, fixtures and fittings relating to the same and any and all other items belonging to the Customer.
Services means services provided in accordance with written instructions contained in the Company’s work request form(s) and signed by the Customer.
Vessel means the Customer’s vessel as particularly described on the first page of this agreement.
Terms of Payment
1.All payments (without deduction or offset) shall be made ONLY by way of banker’s drafts, cash and credit cards and in accordance with the rates set out below.
2.Payments are due on receipt of invoice.
3.All outstanding payments must be made by the Customer prior to launching or return of the Vessel.
4.Should the Customer fail to make the appropriate payments when due, the Company may immediately cease all works on the vessel until it receives, in its sole discretion, adequate payment or assurances that payment will be made pursuant to these terms and conditions.
5.All payments more than thirty (30) days past due shall be subject to interest at the rate of Twelve per centum (12%) per annum.
6.Any grants of or extension of time for payment shall not diminish, waive, release or discharge the Customer’s obligation to pay in accordance with these terms and conditions.
7.The Customer agrees that the Company shall have the right to exercise a possessory general and where applicable a maritime lien against the Vessel and that such liens shall extend to and secure all amounts due to the Company under this agreement and/or the Laws of Grenada and that no release of possession shall waive or prejudice such liens.
8.WHENEVER PAYMENTS REMAIN PAST DUE FOR MORE THAN SIX (6) MONTHS THE CUSTOMER AGREES THAT THE COMPANY MAY IN ITS SOLE DISCRETION WITHOUT ANY LIABILITY WHATSOEVER TO THE COMPANY TREAT THE VESSEL AS HAVING BEEN ABANDONED AND TAKE SUCH STEPS AS IT CONSIDERS NECESSARY TO REMOVE THE VESSEL FROM ITS PREMISES AND TO ARRANGE FOR ITS DISPOSAL
Customer Responsibilities and Representations
1.The Customer shall remove from the Vessel prior to storage all paints, thinners, gasoline cans or other materials which constitute a danger of fire, for the protection of the Vessel, the Company and other boat owners. The Company will not be responsible for inspecting the Vessel in order to identify and remove such items.
2.The Customer recognizes that the Company is not responsible for providing security services in relation to the Vessel and will take the necessary steps to ensure that the vessel and its contents are adequately secured while at the Marina.
3.The Customer will, before making any request for electricity supply, ensure that the Vessel can safely receive the type of power supplied by the Company. The Company will provide an electricity supply of 220V/Single/3 Phase/50 Cycles.
4.The Customer represents that she/he/it:
a.)is the owner of the Vessel or has been authorized by the owner to enter into this agreement; b. has read and agrees to comply with the Company’s Yard Policies and Best Practices Agreement and all applicable laws of the State of Grenada; c. will navigate the Vessel at all times at speeds not likely to endanger the safety of other craft, servants, agents, invitees, licensees of the Company and its property; d. will inspect and supervise the progress of the ordered work and provision of the services from time to time and will be solely responsible for ascertaining the suitability of the work performed and the provision of the services and materials installed for the Customer’s intended purposes; e. will make all requests for services (including repairs) in writing by completing the Company’s work request form; e. will identify to the Company prior to provision of the services, all sling or lifting points on the Vessel; f. is aware that that the Company’s maximum lift capacity is One Hundred and Fifty (150) Tonnes and hereby confirms that the weight of the Vessel is within this capacity; g. will not shift boat stands or chocks applied to the Vessel and hereby acknowledges that only the Company shall be permitted to do so; h. has adequate insurance coverage (including marine insurance) for the Vessel and for the Customer to cover all risks including third party claims. The Company can obtain a quotation for short term insurance cover at competitive rates if the Customer does not have insurance; will promptly notify the Company of any change to its address.
5.The Customer will not, while the Vessel is moored or berthed at the Company’s premises, use the Vessel for the purposes of conducting any commercial activity.
6.All damage to property of the Company, its servants, agents, subcontractors, invitees or other third parties howsoever or to the environment (including oil spillage) caused by the acts or omissions of the Customer shall be the sole responsibility of the Customer. The Customer shall defend indemnify and hold harmless the Company from all liability and expense, without limitation, all clean up costs, fines, penalties costs and reasonable fees and expenses arising out of any such damage to the environment.
7.The Customer agrees to defend, indemnify and hold harmless the Company and its employees, subcontractors and agents from any claim, charge, liability or loss or damage for personal injury, occupational sickness, disease or death of any person, including without limitation any employee, subcontractor or agent of the Customer or for any property damage or loss of use thereof, which is in any way caused, in whole or in part, by defects in the Vessel or by the negligence, breach of contract or willful misconduct of the Customer, including its employees agents or subcontractors, unless such loss is caused solely by the negligence of the Company. Upon receipt of written request of the Company, the Customer shall, at its own expense, immediately defend the Company in any arbitration, action, or other proceeding in which a claim covered by the foregoing indemnity is alleged.
Company Responsibilities and Representations
4.1 The Company agrees to perform the services on a time and material basis together with any additional work ordered by the Customer in accordance with the Customer’s instructions and good marine practice.
4.2 The Company reserves the right to refuse to perform any work whatsoever other than those specified in writing on the Company’s work order sheet and authorized by the Customer.
4.3 The Company shall in its sole discretion be entitled to move, moor or reberth the Vessel.
Exemptions and Limitations of Liability
1.Under no circumstances shall the Company be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement (except due to its own negligence or that of its duly authorized employees) for:
a.) Damage caused by fire; b. Damage due to its omission or failure to provide services which have not been ordered by the Customer in accordance with clause 3.5 above; c. Damage to the Vessel due to defective materials and/or inherent structural defects in the Vessel which may occur during haul-out, lifting or launching thereof; d. loss of profits; e. crew wages; f. salvage or tug expenses; g. delay; h. demurrage; i. loss of use of vessel; j. loss of sales or business; k. loss of agreements or contracts; l. loss of anticipated savings; m. loss of or damage to goodwill; n. loss of use or corruption of software, data or information; o. loss or damage connected with fluctuations in or any irregular power supply to the Company’s premises or as a result of incompatibility between the electricity supplied by the Company and that which the vessel is able to utilize; p. any cause or causes beyond the Company’s control, including but not limited to strikes, riots, Acts of God (which shall include all the elements), war, failure of suppliers to deliver supplies or materials, failure of sub-contractors to complete work, civil disturbances; and q. any indirect or consequential loss.
2.The Customer understands that the Company will make all estimates of cost of repairs and completion times honestly and in good faith, based on the Company’s experience and established best practices, however, the Company cannot guarantee their accuracy. The Customer acknowledges that boat repairs cannot always be accurately estimated in advance; that once work begins, unforeseen conditions or problems may arise and other factors can affect estimated costs and completion dates. The Customer accepts these realities and agrees that any estimates provided by the Company shall be used as guidelines only and are not binding on the Company.
3.IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY, WHETHER ARISING IN NEGLIGENCE OR IN LAW, TO ANY PARTY INTERESTED, INCLUDING THE CUSTOMER FOR ALL PERSONAL INJURY, DEATH OR PROPERTY DAMAGES EXCEED THE LESSER OF (A) THE SUM OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00) OR (2) THE SUM RECEIVED BY THE COMPANY UNDER THIS AGREEMENT.
4.NO CLAIM ARISING OUT OF THIS AGREEMENT SHALL BE VALID AGAINST THE COMPANY UNLESS SAID CLAIM IS PRESENTED IN WRITING TO THE COMPANY WITHIN THIRTY (30) DAYS OF THE EARLIER OF (1) THE DATE THE WORK WAS COMPLETED OR (2) THE DATE THE VESSEL WAS REDELIVERED TO THE CUSTOMER
Work conditions
6.The Customer may perform work on the Vessel or obtain the services of others to do such work while at the Company’s premises, subject to the following restrictions:
a.) The Customer shall give prior notice to the company of such work and the person who will conduct it; b. The Company reserves the right, on reasonable grounds, to refuse such person (except where such person is the customer or its employee(s); c. No work shall be performed in respect of the services or any other order or contract between the Customer and the Company; d. The Customer shall have no warranty from the Company and the Company shall have no liability for warranty to the Customer for work so performed; e. The Customer assumes all risks for quality and performance of the work so performed and assumes liability for any damage loss, delay, claim for death, personal injury or damage to property for caused by or arising out of such work; f. Any such work shall be governed by the Company’s Yard Policies and Best Practices Agreement and such other restrictions as the Company deems appropriate; g. Failure to abide by such rules shall be the basis to request that such persons vacate the Company’s premises.
Default and remedies
1.The occurrence of any of the following events shall constitute a default under this agreement:
a.) breach by either party of this agreement including the Company’s Yard Policies and Best Practices Agreement; b. failure of the Customer to provide access to the Vessel; c. any act or omission by the Customer, which causes any of the representations made in clause 3 to be false; d. any act or omission by the Customer which constitutes a tort against the Company or a third party
7.2 Upon any default by the Customer, the Company in addition to all other remedies under maritime law in its sole discretion, may:
a.) suspend its performance or terminate this Agreement; b. impose storage charges on the Vessel at the Company’s current storage rates; c. retain possession of the Vessel until fully paid; or d. pursue all remedies, including non-judicial sale of the Vessel
Dispute resolution and Jurisdiction
8.1 Any dispute arising out of this agreement shall be settled by mediation between the parties in Grenada such mediation to be conducted in accordance with the guidelines and practice directions of the Eastern Caribbean Supreme Court.
8.2 This agreement shall be governed by the Laws of Grenada.
Entire agreement
9.1 This document is the entire agreement between the parties and may only be modified by written agreement signed by both parties.
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