General terms and conditions of Sales
Unless otherwise specifically agreed in writing all contracts agreed by the Shipyard are subject to and incorporate the following General Terms and Conditions. Moreover, unless specifically agreed in writing, all the Works done by the Shipyard are subject to these Terms and Conditions.
1. Definitions
Conditions: the General Terms and Conditions listed below govern the Offer of Works and Services or the Contract with the Company. Shipyard: SARL NAUTECH – 46 quai François MITTERAND, 13600 LA CIOTAT – France Client: the Owner, his representatives, or anyhow the person signing the Contract. Parties: the Shipyard and the Client or the Master of the Yacht Vessel: Yacht, Ship, Platform, Pontoon, Craft, etc as specified in the Offer. Offer: document attached to this General Terms and Conditions which shall fully be accepted by the Client. Contract: agreement between the Parties concerning the Offer contents. Services: port services in general as, wharfage, docking plan, storage, bottom cleaning and painting, hull anodes replacing, and in general any Services supplied by the Company. In the Offer shall be listed which services have been agreed with and due to the Client. Works: mechanical operations such as engines maintenance, pumps, valves, engines, propellers and propeller axles etc..; carpentry and welding operations such as the replacement of hull plates also on the upper deck,. structures. etc; piping operations such as replacement of pipes on the deck, in the engine room, in the cabins etc.. and any other operation specifically included in the Offer. Furthermore in the Offer shall be specifically indicated which Works shall be charged to the Company. Price: remuneration for Services and Works, listed and agreed in the Offer, to be paid to the Company. List of performed works: document that encloses all Works and Services performed by the Company.
2. Contract Contents
2.1 With reference to the Vessel, the Shipyard both directly and through persons authorized by the Shipyard shall supply the Client, pursuant to the Terms and Conditions, with Services and Works specified in the Offer for the completion of Works.
2.2 All Works or Services not specifically mentioned in the Offer shall be considered as an extra work. The Shipyard indicates in Variation Orders (VO) and Additional Works Order (AWO) the required time and cost to undertake such extra-works and the Shipyard shall be entitled to extend the delivery date of the Vessel. The cost of these extra-works shall be exclusively borne by the Client.
2.3 Should it be deemed necessary or required the assistance of specialized technicians, manufacturers, experienced consultants or of any other type of specialists the costs shall be exclusively borne by the Client.
2.4 Should any delay of spare parts, equipment or technical assistance provided directly by the Client to the Shipyard cause unproductivity of the Company, delay to the next scheduled dry-dock entrance such costs shall be borne exclusively by the Client, without prejudice to any additional cost due to suffered damages.
2.5 All customs paperwork, related to Vessel, spare parts ordered by the Client, shall be exclusively and directly borne by the Client and performed at his exclusive risks. The Client indemnifies and holds the Shipyard harmless from any Custom claim relating to VAT.
2.6 The Client authorizes, without any time limits and free of charge, the publication and/or diffusion in any form of their images and information on the works carried out by the Shipyard on the website, in print and/or any other means of diffusion of marketing and communication, as well as authorizing the archival and conservation of materials and notes that the purposes of these publications are purely of advertising, in terms of Shipyard references, unless otherwise written communication to send to the Shipyard.
3. Price
3.1 The total price to be paid by the Client shall be determined and agreed between the Parties at the end of Works, based on the rates provided by the Shipyard at the time of the performance of Works, prior to the departure of the Vessel. All prices are in Euro, excluding VAT. If the VAT shall be due, it shall be borne exclusively by the Client pursuant to the percentage provided by applicable law.
3.2 The agency fees, pilots, moorings, tugs, class registry fees, cleaning and gas-free, technical manufacturers, technicians for painting, waste disposal, work at height, special equipment, spare parts and everything not expressly mentioned in the Offer shall be excluded from the Price. It shall be also excluded from the price docking plan for Vessel with special needs other than standard that shall be listed after the evaluation of drawings and if any assistance should be required, the divers’ costs shall be borne by the Client. It shall be excluded from the Price any cost related to the caretaker service, lighting service and also those relating to the fire watch.
3.3 When the Offer has been accepted, the Shipyard will send to the Master of the Yacht a “Reservation form”.
4. Work hours
Unless specifically agreed in written by the Parties, all of the works shall be done and completed within normal working hours of the Shipyard. If, due to Client’s request, works have to be performed on Saturday and or Sunday the Shipyard shall be entitled to increase prices.
5. Acceptance of the Offer
5.1 The acceptance of the Offer sets the conclusion of the Contract. Should the Offer have not expressly made in writing, it shall be considered as tacitly accepted upon the arrival of the Vessel in the Shipyard or upon the beginning of the Works and Services on the Vessel.
5.2 The economical offer is valid for a maximum period of one (1) month from the date of its receipt.
5.3 Once the Reservation have been made, with the entrance date and the subsequent exit of the Vessel, any possible delay or cancellation by the Client shall be subject to a penalty of € 5.000,00 for each day up to a maximum of € 100,000.00.
6. Payment
A first instalment of 30 % is due upon each order except for VO and AWO that are subject to a 50% first instalment. The balance shall be paid by instalment on milestones as per Offer or VO and/or AWO. VO and AWO shall be paid in full at their completion.
Work Progress Invoices are due within10 days after they have been sent by email to the Customer or upon Works Completion, whichever is earliest, during the performance
in clear funds without any deduction or set off upon delivery of Works and Services and anyway before the yacht leaves the Shipyard. Should the entire payment not have been received, the Shipyard would be entitled to retain the Vessel and any Client’s ownership.
In the event of late payment Interest Fees of five times the Statutory Interest Rate in force at the due date will run and the delivery period shall be extended consequently and at least by the same delay. The shipyard reserves the right to suspend the execution of the services or works in case of non-payment of any invoice by the due date.
Prices are always indicated in Euros. Invoices are payable in this currency and according to the conditions mentioned on the invoice.
The invoices of Third Contractors as per clause 11 shall be fully prepaid to the Shipyard on order. This payment does not create a right to sue the Shipyard that is only acting as Stakeholder for payments to Third Contractors.
7. Works and Services performance, control and acceptance
The duration of the works provided by the Shipyard is always indicative, even when mentioned in Offers and shall not engage Shipyard’s liability.
The inspection and control of the works by the Owner or their Representative should not cause any delay in their execution. In the event of such a delay, all consequences, whether financial or otherwise, will be borne by the Customer.
Any time sheet, consumption report, invoice, work progress invoice shall be deemed accepted by the client if no comment is made within five (5) calendar days after receipt. Delivery shall take place at the Shipyard. Departure of the Vessel from the Shipyard worth tacit acceptance of the Works and Services.
8. Guarantee
8.1 The Shipyard’s liability on the supply is limited to the guarantee applied by the suppliers. In no case the Shipyard’s liability on repairs shall exceed the cost of repair Works undertaken by the Client. Any warranty Works will be carried out in the Shipyard, such warranty shall be kept for one (1) year starting from the date of of Vessel’s departure from Shipyard. All and any costs and expenses due to the transfer within the Shipyard shall be exclusively borne by the Client.
8.2 It is expressly excluded any warranty on mechanical and or electrical maintenance. Before the Vessel leaves the Shipyard, the Client shall accept the List of performed works and accept the good performance of the Works and Services.
8.3 It is expressly agreed that the warranty is limited to the repair or the replacement of the defective materials or workmanship.
8.4 It is expressly agreed that any works, services or things provided by Third Contractors as per §11 are excluded from Shipyards Guaranty.
8.5 Any guarantee is excluded for used equipment, wear and tears and in case of accident at sea, inappropriate or abnormal use, modifications by Customer, non-payment of final invoice, lack of maintenance, departure of shipyard before completion of the works, intervention/repairs by customer or third party, non-compliance with maintenance plans, user’s manuals, class rules, Shipyard’s recommendation, customer negligence or fault, circumstances beyond Shipyard’s control.
9. Test and trial
The Client, if it is provided in the Offer, is entitled to perform tests and trials in connection with the Works carried out by the Shipyard as deemed necessary by the Client. However, such tests and trials shall be performed at the sole costs and risks of the Client. Shipyard’s representatives shall be entitled to attend on board the Vessel during the tests and trials. The Shipyard representatives shall be allowed to perform measurements and observations as considered necessary in order to ensure the proper performance of the Works.
10. Liability
10.1 the Vessel and its Crew shall, at all times, whether at the Shipyard or elsewhere, remain under the full and exclusive custody and responsibility of the Owner and/or the Owner’s Representative and Captain. The Shipyard may, if so requested by the Owner’s Representative or the Captain, provide assistance with docking, undocking and other manoeuvres, acting always as agent for the Owner.
10.2 The Shipyard shall be held liable only for direct damages resulting from work to be done within the Shipyard and the Shipyard shall not be held liable for any further direct or indirect damages. The Shipyard shall not be held liable for any technical choice or decision (including any choice concerning the quality) made by the Client or by his technicians periodically appointed.
10.3 The Shipyard shall not be held liable for any indirect damage including loss of freight, lock of the Vessel, forfeit of contracts, cost of crew or indirectly for any further economic damage resulting from Works or Services.
Any damage resulting from transportation, displacement or lifting of the Vessel shall not be covered under warranty by the Shipyard, unless expressly requested in writing by the Client who shall also specify the amount to be insured. Such insurance shall be quoted on the base of the declared value and it would be exclusively borne by the Client.
10.4 The materials owned by the Client may be deposited at the Shipyard, however in case of theft, damage or deterioration the Shipyard shall not be held liable. The Shipyard shall not be held liable for theft on board the Vessel or equipment stored within the areas of the Shipyard, without prejudice to the Client’s right to request a special insurance against theft, whose costs shall be exclusively borne by the Client.
10.5 It shall be care of the Master of the Vessel to ensure stability and prevent any leaks that could provoke damages onboard as result of flooding of the dock by the floating of the Vessel. The Master of the Vessel shall ensure that during the maneuvers of entrance and exit of the Vessel from the dock, the fins must be closed, the propellers and bow thrusters must be stopped in order to all diving operations.
During these operations, the Master of the Vessel, shall be responsible for the mooring; furthermore, the Master of the Vessel shall ensure the engines, propellers, fins, the bow thrusters, etc. will be stopped for the entire duration of the stay of the Vessel on keel blocks and that liquids will not be moved inside the tanks unless prior agreed with the director of the Shipyard
10.6 Shipyard’s Liability is limited to One (1) year after Vessle’s departure from the Shipyard.
11. Third Contractors chosen by the client:
Should the Client choose Third Contractors the services, works and items provided by these Third Contractor shall remain under the exclusive liability and warranty of these Third Contractors, and the Client indemnifies and hold harmless the Shipyard for any damage and liability whatsoever that could arise from Third Contractors’ services, works and items, even if the said Third Contractor has been invoiced with a margin by the Shipyard to the Client which is currently done in the industry for VAT purpose, Third Contractors being generally called “direct contractors” and the remuneration taken by the Shipyard having the nature of a commission.
12. Force Majeure
12.1 In any and possible event of Force Majeure, the Shipyard shall be entitled to request the suspension and resumption of the performance of the Works.
12.2 Force Majeure events are considered possible unforeseen events that could affect the Shipyard and/ or its subcontractors, involved in the Services or in the Works of the Offer. The unforeseen events could be wars, revolutions, sabotage, epidemics, explosions, fires, natural disasters, restrictions on the use of energy, lack of raw materials or any other items essential for the production, embargo, national strikes organized by trade union groups of the Company, measures of civil and military Authorities and any further unpredictable event with the ordinary diligence use. It shall be also considered as Force Majeure event all the adverse weather conditions including heavy rain and wind.
12.3 In cases referred to article 12.2 the terms of delivery shall be extended for a period equal to the lost working days connected with the occurrence of these events without any charge of penalty for the Company.
12.4 Should the event of Force Majeure be extended for more than thirty (30) days, the Shipyard shall be free to terminate ipso jure the Contract.
13. Insurances
13.1 The Client certifies that he has taken out all the necessary insurance to cover the risks inherent in owning the said vessel and its employees/crew, throughout the contract period. The valid insurance policies will be supplied to the yard as soon as the quotation has been accepted and in any case before the Yacht enters into the Shipyard facilities. The Client shall maintain this coverage throughout the contract period.
13.2 Before the Vessel enters the Contractor’s Yard or other facilities the Owner shall provide the Contractor with copies of certificates evidencing the hull and machinery and liability insurances.
13.3 During Vessel’s stay at the Shipyard, the Shipyard shall maintain Ship Repairer’s Liability (SRL) insurance for no less than EUR xxx and shall make evidence thereof available to the Owner on request. The Client shall bear the cost of any SRL Premium Contribution. The client expressly acknowledges that this amount is perfectly reasonable and adapted to the nature of the contract and its activity. In case any extension to policy coverage is required by the Owner to offered SRL terms, any additional premium shall be for the account of the Client.
13.4 The parties waive any recourse against each other for the consequences of bodily injury which may occur during the performance of the contract to the persons they employ directly or indirectly, subject to the right of the parties concerned or of their heirs and those of social security and expressly undertakes to inform their respective insurers. The client acknowledges that this essential clause related to the economics of the contract and expressly undertakes to inform his hull insurers and his broker and to obtain from them a waiver of recourse against the Shipyard on account of the work carried out in under this contract beyond the sums indicated above.
13.5 Should the Client entrust a third party for any works to be performed in the Shipyard facilities, he shall make sure that this last has at least the same insurance coverage than the Shipyard for any damage that could be caused to the Shipyard and other yachts.
13.6 During the Warranty period, the Shipyard shall maintain an insurance covering its civil liabilities up to EUR xxx The Client and its insurer renounce to any claim for any damage whatsoever against the Shipyard and its insurer for any amount over.
13.7 The Client, the Vessel and their insurers renounce to any claim for any material and/or immaterial damage against the Shipyard or Shipyard’s Insurers for any amount over EUR xxx for any claim relating to Products liability and EUR xxx for any other claim.
Should the Shipyard’s Insurers reject their guarantee, the Client, the Vessel and their insurers renounce to any claim for any material and/or immaterial, direct and/or indirect, damage against the Shipyard for any amount that would exceed the amount invoiced by the Shipyard for the works ordered.
14. Safety and Security
14.1 The Vessel, throughout the stay in the Shipyard shall be manned and under the supervision and control of the Master of the Vessel, it shall have adequate insurance cover for the Vessel and the crew.
14.2 The Client shall warrant the absence of asbestos.
14.3 The Client shall warrant that the crew is trained and qualified.
15. Confidentiality
Each Party shall treat as confidential all information concerning the other Parties’ business coming to its knowledge in connection with the Offer.
16. Applicable Law and Jurisdiction
Either the Condition or the Offer shall be referred to French Law. The Parties agree and undertake that, in the event that any dispute arises between them in connection with the Offer or with the Terms and Conditions, (including any question regarding the interpretation, existence, validity, performance, breach, cancellation, termination, suspension of the Conditions or of the Offer) shall be exclusively subject to the French Jurisdiction – Court of MARSEILLE.
In order to recover the due compensation against the Client, the Shipyard shall be entitled to act in any and all Jurisdiction and ahead any competent Court. The owner, his representatives or the person who accepts this Offer, expressly and unconditionally declares to have read and accepted the General Terms and Conditions of Contract herein attached.
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