OCEAN COBRA LIMITED
TERMS AND CONDITIONS OF BUSINESS
1.1 Definitions, in these Conditions, the following definitions apply:
1.2 Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Guernsey are open for business.
1.3 Berth: means the space on the water or land from time to time allocated to the Customer for the Vessel by the Company, or by a third party, during the term of the Contract and includes a Trade Berth.
1.4 Brokerage: means the Company acting as an intermediary or dealer between a buyer and seller of Vessels or equipment. Additional agreements to these Conditions are signed by all parties during the Brokerage transactions.
1.5 Company: means Ocean Cobra Limited and/or the party or parties undertaking the Work as well as any authorised member, agent, sub-contractor, employee or representative of the Company.
1.6 Conditions: the terms and conditions of business set out in this document as amended from time to time.
1.7 Contract: the contract between the Company and the Customer for the Work in accordance with these Conditions.
1.8 Customer: means the party or parties with whom the Company agrees to perform the Work and shall include the legal owner of any relevant Vessel, any parent or associated company and/or firm, as well as any authorised member, agent, employee or representative of the Customer. Where the Vessel is under demise charter and the agreement is with the demise charterer, the Customer shall also include the demise charterer. In the event that the Company enters into an agreement with more than one party, the obligations of such other parties shall be joint and several, unless otherwise agreed in writing.
1.9 Gardiennage: means Work carried by the Company in checking at intervals the condition of a vessel and its equipment and reporting to the Customer any concerns found. The checks are limited to visual observations unless otherwise agreed by the Company and the Customer but at all times subject to these Terms and Conditions of Business.
1.10 Order: means the Customers order for the Work, as set out in the Customers order form, or the Customers written acceptance of the Companys quotation as the case may be.
1.11 Parties: means the Company and the Customer; each a Party and collectively the Parties.
1.12 Premises: means any land, buildings and structures whether land based or floating owned, leased or rented by the Company and includes a Trade Berth.
1.13 Prices: any prices provided to the Customer by the Company as amended from time to time.
1.14 Specification: any specification for the Works that is supplied to the Company by the Customer, or produced by the Company and agreed in writing by the Customer.
1.15 Terms: the terms and conditions of business set out in this document as amended from time to time.
1.16 Trade Berth: means a marina berth allocated to the Company by Guernsey Harbours.
1.17 Vessel: means any vessel or a floating craft of any nature (or part thereof), or any other comparable object such as a yacht, a lighter, a barge, a pontoon, a tug, a drilling-platform, a rig as well as any other object entrusted to the Company for the Work to be undertaken.
1.18 Work: means the goods and services supplied to the Customer and/or work undertaken by the Company pursuant to these Terms and Conditions. Work also means any goods or services supplied or carried out by the Customer.
- CONSTRUCTION: In These Conditions, The Following Rules Apply:
2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2.4 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.
2.5 A reference to writing or written includes e-mails.
- BASIS OF CONTRACT
3.1 These Terms and Conditions of Business form an integral part of all quotations, works and contracts provided by the Company.
3.2 These Terms and Conditions of Business apply to the exclusion of any other Terms and Conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.3 The Company has in addition to these Terms and Conditions of Business its Terms and Conditions relating to its Web Sites and its Privacy Notice, which can be accessed on www.oceancobra.co.uk. The Company also has additional agreements relating to Brokerage.
3.4 The Order constitutes an offer by the Customer to purchase the Works in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
3.5 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
3.6 In these Terms and Conditions of Business: Applicable Laws on Consumer Rights means all applicable laws, rules, regulations, instruments and provisions in force from time to time relating to consumer protection.
- TRADE BERTH
4.1 The Company has the right to allocate temporary use of its Trade Berth to a Customer, for a daily rate to be agreed at the time of allocation. The rate will include Gardiennage.
4.2 The Company shall have the rights of access to the Vessel and its equipment at all times while the Vessel is moored on its Trade Berth.
4.3 Vessels will be subject to a Gardiennage agreement at all times while the vessel is moored on the Companys Trade Berth.
4.4 Use and access to the Trade Berth will at all times be at the Customers own risk.
4.5 The Customer will maintain adequate insurance to at least third party, fire and theft cover in accordance with Guernsey Harbour requirements from time to time and will produce evidence of insurance on request. The Vessel is moored at all times at the Customers own risk.
4.6 The Customer will at all times maintain the Vessel in a seaworthy condition including all fire safety equipment, and will use any shore or vessel based electrical or other equipment in accordance with the relevant rating and safety standards.
4.7 The Customer will at all times comply with Guernsey Harbours terms and conditions for use of a marina berth.
- VESSEL MOVEMENTS
5.1 The Company shall have the right to order or undertake such movements of the Vessel and such tests or trials it deems necessary in order to perform and determine the due completion of the Work and/or for reasons of safety, security or good management of the Companys business and premises.
5.2 The costs of such movements, trials and/or tests including the cost of any bunkers and/or consumables shall be borne by the Customer.
- ACCESS TO PREMISES / WORK
6.1 The Company (and/or any of the Companys sub-contractors), shall have the rights of access to the Vessel and its equipment at all times while the Company is contracted to Work on the Customers Vessel or equipment.
6.2 No work or services shall be carried out by the Customer on the Vessel or the Companys Premises while the Vessel is on the Companys Premises, without the Companys prior written consent. The Companys consent may be revoked with immediate effect in the event of any breach of these Terms and Conditions of Business by the Customer, in which case the Company shall be entitled to demand the immediate cessation of any work.
6.3 The Customer is subject to the Companys health and safety, environmental and access policies and shall further be obliged to comply with all laws and regulations relating to environmental protection and health and safety.
6.4 The Customer is responsible for any damage or loss caused directly or indirectly from any breach of its obligations under these Terms and Conditions of Business.
6.5 The Customer shall take all necessary precautions to prevent pollution of the environment and shall indemnify the Company for any loss or damage arising from any pollution of the environment caused by the Customer.
6.6 The Customer shall ensure that it does not cause any nuisance or annoyance to the Company, any other customer or person present or residing in the vicinity and does not interfere with the Companys schedule for the Work and/or the good management of the Companys premises and business.
6.7 During performance of the Work by the Company (and/or any of the Companys sub-contractors), the Customer shall not have access to the Vessel unless the Companys prior written consent has been obtained.
- QUALITY STANDARDS
7.1 The Company will exercise reasonable care and skill in the performance of the Work in accordance with the provisions of these Terms and Conditions of Business, the requirements of any relevant regulatory bodies and, in the absence of any other contractual term as to quality, to a satisfactory standard.
7.2 This condition only applies only to the Customer: a person who is not a Party to these Terms and Conditions of Business shall not have any rights to enforce these Terms and Conditions of Business.
7.3 The Customer authorises the Company, as soon as is reasonably practicable, to, after the discovery of any loss or damage, take all appropriate steps to mitigate any further loss or damage as deemed appropriate by the Company.
- TITLE AND RISK
8.1 Risk in all goods, equipment and materials supplied by the Company to the Customer shall pass to the Customer at the time of supply to the Customer of such goods, equipment or materials or at the time when such goods, equipment or material are assigned or affixed to the Vessel, as the case may be.
8.2 Title to all goods, equipment and materials supplied by the Company to the Customer shall not pass to the Customer until the Company receives payment in full (in cash or cleared funds) for the Work.
- PRICES AND PAYMENT
9.1 The price for the Work shall be the price set out in the Order, or if no price is quoted for the Work, the price will be determined based upon the labour and materials expended and services provided in accordance with the Companys tariff at the time when the Work was performed.
9.2 Unless otherwise agreed in writing, the Price will not include expenses incurred for pilotage, salvage, tugs, harbour dues and similar charges which shall be invoiced separately to the Customer.
9.3 The Company will exercise reasonable skill and judgment when giving an estimate or indication of Price. However, estimates are always subject to the accuracy of information provided by the Customer, are often based on a superficial examination and do not include the cost of any emergent work which may be necessary nor the cost of any extensions to the Work. The Company reserves its right to increase the Prices where its reasonable to do so.
9.4 The Company will inform the Customer of any proposed increase in the estimated Price, together with the reasons for such increase, and will proceed with the Work after having obtained the Customers approval (such approval not to be unreasonably delayed or withheld). The Customer shall remain responsible for the cost of labour and materials already supplied or remaining to be supplied which are not affected by the proposed increase in the Price.
9.5 Unless otherwise agreed between the Parties in writing, payment for all Work provided shall be due immediately upon receipt of the Companys invoice. Payment shall be deemed to have been made when received by the Company as cash or cleared funds at the Companys nominated bank account.
9.6 If the Customer fails to make any payment due to the Company by the due date for payment, the Company has the right to charge interest on the overdue amount at the rate of eight percent (8%) above Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
9.7 The Customer shall pay all amounts due under these Terms and Conditions of Business in full without any set-off, counterclaim, deduction or withholding except as required or permitted by law. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
9.8 To the extent permitted by law, the Customer hereby grants to the Company a lien and a continuing security interest, and, where applicable, a maritime lien, over the Vessel as security for payment of the Price until full payment of the Price by the Customer, or until the Customer has given security to the Company in a form and substance acceptable to the Company (for example a letter of guarantee from a bank reasonably acceptable to the Company or lodgement of a cash deposit with a professional third party agent reasonably acceptable to the Company). The security provided shall be sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for the Companys prospective legal costs and expenses.
9.9 The Company shall be entitled to charge the Customer for storage and the provision of any ongoing services at the Companys normal daily rates until full payment (or provision of security) by the Customer and removal of the Vessel from the Companys premises. The Customer shall be entitled to remove the Vessel upon providing proper security.
10.1 Unless otherwise agreed in writing by the Parties, time estimates given for completion of the Work are given in good faith and without guarantee.
10.2 The Company shall not be liable for any failure or delay in the performance or completion of the Work, or for any such loss or damage resulting therefrom, unless the Company has expressly guaranteed completion by a specific date in writing, or the delay arises from its wilful acts or omissions or negligence.
- LIMITATION OF LIABILITY AND FORCE MAJEURE
11.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.2 The Company shall take reasonable steps to maintain security at its premises, and to maintain its facilities and equipment in reasonably good order and condition.
11.3 Notwithstanding Clause 11.2, the Vessel, and any other property of the Customer left at the Companys premises, or while the Vessel is under a Gardiennage contract is at the Customers own risk.
11.4 The Company shall not be under any duty to salvage or preserve the Vessel from the consequences of:
(a) any defect in the Vessel and/or;
(b) an accident which has not been caused by the Company. However, the Company reserves the right to salvage or preserve the Vessel, at its sole discretion, in appropriate circumstances and in particular where the safety of people, property or the environment is at risk.
11.5 The Customer shall effect and maintain, at no cost to the Company, liability insurance providing cover for any loss or damage for which the Customer may be liable under these Terms and Conditions of Business (including at least third party, fire and theft liability cover and, where appropriate, employers liability cover in respect of any of its employees).
11.6 The Company shall effect and maintain, at no cost to the Customer, liability insurance for such loss or damage for which the Company may be held liable under these Terms and Conditions of Business.
11.7 Each Party shall produce copies of insurance policies as evidence of cover, immediately and (in any case within seven (7) days) upon request by the other Party.
11.8 Each Party accepts responsibility and liability for:
(a) death or personal injury caused by its negligence or the negligence of its employees, agents or sub-contractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other reason for which it would be illegal for the Parties to exclude liability.
11.9 Subject to Clause 11.8, the Company shall under no circumstances whatsoever, be liable to the Customer or any third party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with these Terms and Conditions of Business.
11.10 The Company shall not be liable for any Defective Work if the defect arose as a result of:
(a) the Customers failure to follow the Companys oral or written instructions;
(b) the Company following any drawing, design or specifications supplied by the Customer;
(c) fair wear and tear, wilful damage, negligence or abnormal working conditions; and/or;
(d) changes made to ensure compliance with applicable statutory or regulatory standards;
(e) any remedial work which is put in hand by the Customer directly without first notifying the Company and allowing the Company a reasonable opportunity to inspect the Defective Work.
11.11 These Terms and Conditions of Business do not contain any express or implied term as to quality or fitness for any particular purpose, unless, prior to the Work being performed, the purpose has been clearly identified in writing to the Company and the Customer has stipulated that it is relying upon the Companys skill and judgment to ensure this purpose has been met; and
11.12 The Company accepts no liability to the Customer in respect of any loss of profit or turnover which the Customer or its customer or any other person may sustain in consequence of the failure of any faulty or unfit article supplied to the Customer by the Company.
11.13 The Company shall assign to the Customer any and all of its rights against the manufacturer or supplier of any particular article used in the Work or supplied to the Customer as part of the Work.
- ASSIGNMENT AND SUB CONTRACTING
12.1 The Company may at any time assign, transfer or deal in any other manner with all or any rights under these Terms and Conditions of Business and may sub-contract or delegate in any manner any or all of its obligations under these Terms and Conditions of Business to a third party.
12.2 The Customer shall not, without the prior written consent of the Company, assign, transfer, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under these Terms and Conditions of Business.
- CONSUMER RIGHTS
13.1 To the extent that these Terms and Conditions of Business contradict with the Applicable Laws on Consumer Rights, the rights conferred on Consumers under the Applicable Laws on Consumer Rights remain unaffected.
13.2 Advice on whether a Customer is a Consumer or is otherwise protected by some or all of the Applicable Laws on Consumer Rights may be obtained from any local Trading Standards Office, the Citizens Advice Bureau, the Office of Fair Trading or any firm of advocates or solicitors practising in Guernsey, Channel Isles.
- COMMUNICATION AND NOTICES
14.1 All communications and notices given under these Terms and Conditions of Business shall be in writing. A notice shall be sufficiently served if given by effective means of communication, including but not limited to email, registered or recorded mail or by personal service, to the Customers last known address or to the Companys official email, trading address or registered office.
15.1 If any provision of these Terms and Conditions of Business is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 15 shall not affect the validity and enforceability of the remaining provisions of these Terms and Conditions of Business.
- THIRD PARTY RIGHTS
16.1 A person who is not a Party to these Terms and Conditions of Business shall have no right under the Contract to enforce any term of these Terms and Conditions of Business.
- GOVERNING LAW AND JURISDICTION
17.1 These Terms and Conditions of Business, as well as any contract(s) made subject to these Terms and Conditions of Business, shall be governed by and construed in accordance with Guernsey law.
17.2 All disputes arising out of or in connection with these Terms and Conditions of Business shall be subject to the non-exclusive jurisdiction of the Guernsey courts.
Effective date 07/10/2022