1.1 Where the following words appear in these Conditions, the Agreement or the Application (as defined below) they shall have these meanings:
“Agreement” shall mean the whole contract between you and us as set out in these Conditions, in the Application and in the Milford Marina Handbook which you have read and signed indicating your agreement to the same.
“Applicable Laws” means all applicable laws, statutes, rules, regulations, codes and government guidance from time to time in force.
“Application” shall mean the application for a berthing or storage ashore licence completed by you confirming your agreement to the Agreement.
“Berth” means the space on water from time to time allocated to you by us for the Vessel during the term of this Agreement.
“Company” shall mean the Milford Haven Port Authority trading as Milford Marina, and for its agents to whom the application for berthing is made which may be its associated companies, concessionaires, tenants and assignees for the operation (if any) of the boat repair yard, brokerage, or any other harbour facility.
“Conditions” shall mean these terms and conditions.
“Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
“Fee” shall mean the fee, rate, tonnage rate or charge payable by the Owner to the Company under this Agreement as specified in the Application to berth or store the Owner’s Vessel at the Marina or Premises (as applicable).
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679).
“Length Overall” (LOA) means the overall length of the space occupied by the Vessel including any fore and aft projections, temporary or permanent.
“Marina” shall include a marina, mooring or any other facility for launching, navigating, mooring or berthing a Vessel which is owned or controlled by the Company.
“Marina Services” means the facilities provided by the Company as part of the Agreement, including but not limited to: provision of laundry facilities, supply of electrical power and metre hire for electricity, diesel, gas and hoist, which are all subject to an additional charge as specified at clause 15.
“Milford Marina Handbook” means the handbook governing the use of the Marina and Premises by you, a copy of which is located at the Company’s offices and is provided to you from time to time;
“Owner” is the person or company referred to in this Agreement being granted the right to berth the named Vessel on the Premises on the terms contained in this Agreement. Under the terms of this Agreement the Owner is assumed to be the owner of the Vessel referred to in this Agreement.
“Pontoon” means a moored, decked, floating and moveable structure providing landing or mooring facilities.
“Premises” means all the land, adjacent water and buildings occupied by or under the control of the Company, including the Storage Ashore Accommodation, docks, slipways, Pontoons, jetties, quays, piers, mud berths, sheds, lofts, workshops, hard standing, roadways and car parks.
“Special Conditions” means those conditions as set out in the Application which form part of the Agreement.
“Storage Ashore Accommodation” means the land space temporarily allocated from time to time by us for the storage ashore of the Vessel during the term of the Agreement.
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
“Vessel” shall include any form of craft, boat, ship, yacht, dinghy, multihull, or other marine structure which is in your care or control.
“WiFi Policy” means the terms and conditions which govern the use of the WiFi Network, which are located at the Company’s offices and on the Company’s website.
“we” or “our” or “us” shall mean the Company or any of its agents to whom the Application for berthing or storage is made which may be one or more of our associated companies, concessionaires, tenants and assignees for the operation of all and any harbour facility.
“you” or “your” shall mean the person or company referred to in the Agreement as the Owner and shall include any boat owner, charterer, master, agent or other person for the time being in charge of the Vessel, excluding us as the Company.
1.2 If there is any conflict or inconsistency between the terms of the Agreement, the following order of precedence shall apply:
1.2.1 these Conditions;
1.2.2 the Application;
1.2.3 the Milford Marina Handbook.
2. THE AGREEMENT
2.1 Berthing, storage ashore and/or Marina Services at the Marina or Premises shall be provided by us in accordance with the Agreement, for the periods and at the rates of charge from time to time published by us at our Premises and in force at the commencement of this Agreement. Details of the Fee applicable to this Agreement are as set out in the Application.
2.2 Subject always to the Special Conditions and unless terminated earlier in accordance with the terms of this Agreement, the term of the Agreement shall be the dates as specified in the Application.
2.3 You agree that you shall:
2.3.1 co-operate with us in all matters relating to the Berthing, storage ashore and/or Marina Services;
2.3.2 provide, in a timely manner, such information as we may reasonably require, and ensure that it is accurate and complete in all material respects.
3. LIABILITY, INDEMNITY AND INSURANCE
3.1 The Company shall not be liable (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, loss (whether direct, indirect or consequential in nature), theft, or any other damage of whatsoever nature caused:
3.1.1 to any Vessel or vehicle or other property of the Owner or others claiming through the Owner whilst at the Marina or Premises, and/or to any gear, equipment or other goods left with it for repair or storage, and harm to persons entering the Premises or the Marina and/or using any facilities or equipment;
3.1.2 by any event or circumstance beyond the Company’s reasonable control (such as extreme weather conditions, the actions of third parties not employed by us or any defect in any part of your or any third party’s Vessel);
3.1.3 as a result of the non operation of the lockage for whatever reason;
3.1.4 as a result of a loss or interruption of electricity supply or internet connectivity;
3.1.5 as a result of the unavailability of any of the Marina Services;
except to the extent that such loss, theft, or damage may be caused by the negligence or wilful act of the Company or those for whom the Company is responsible.
3.2 Nothing in the Agreement shall be deemed to exclude or limit our liability for death or personal injury caused by our negligence.
3.3 Subject to clauses clause 3.1 and 3.2:
3.3.1 the Company shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of sales or business, loss of agreements or contracts, loss of or damage to goodwill or any indirect or consequential loss arising under or in connection with the Agreement;
3.3.2 the Company’s liability to you in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall be limited to the Fee.
3.4 The Owner shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs reasonably incurred and all other reasonable professional costs and expenses), claims or proceedings incurred by, or instituted against the Company or its servants or agents which may be caused by the Vessel or Owner’s vehicle or by the Owner, his servants, agents, visitors, crew, guests or sub-contractors, except to the extent that such liabilities, costs, expenses, damages, losses, claims or proceedings may be caused by the negligence or wilful act of the Company or those for whom the Company is responsible.
3.5 We shall take reasonable steps to maintain security at the Marina and Premises, and to maintain the facilities at the Premises and in the Marina in reasonably good working order. Subject to this, and in the absence of negligence or breach of duty on our part, Vessels, gear, equipment or other goods are left with us at your own risk and you should ensure that you have appropriate insurance against all relevant risks.
3.6 All persons using any part of the Marina or Premises or facilities for whatever purpose and whether by invitation or otherwise do so at their risk, save for where any injury or damage to person or property is sustained as a result of the Company’s negligence or deliberate act of which the Company is responsible.
3.7 The Company shall not be under any duty to salvage or preserve any Vessel or other property from the consequence of any defect in the Vessel or property concerned unless we have been expressly engaged to do so by you on commercial terms. Similarly we shall not be under any duty to salvage or preserve your Vessel or other property from the consequences of an accident for which we are not responsible. However, the Company reserve the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment and in the interests of good estate management immediate action is considered necessary. Where the Company does so it shall be entitled to charge you on a normal commercial charging basis and, where appropriate, to claim a salvage reward.
3.8 The Owner shall insure his Vessels and vehicles adequately against loss or damage however caused and shall maintain third party insurance (including both public liability and where relevant employers liability insurance) in respect of himself and each of his vehicles and Vessels, his crew for the time being, and his agents, servants, visitors, guests, and sub-contractors for not less than £3,000,000.00 in respect of each accident or damage, and shall maintain in respect of each Vessel adequate removal of wreck insurance. Such insurances shall be affected and maintained in an insurance office of repute and the Owner shall produce the policy or policies relating thereto to the Company on demand.
4. VESSEL AND VEHICLE MOVEMENTS
4.1 We reserve the right to enter on board the Vessel and to move any Vessel, gear, equipment or other goods at any time for reasons of safety, security or good management of the Marina and Premises. The Company shall not be liable to the Owner for any loss, cost or damage suffered or incurred by the Owner where such action is taken.
4.2 Vessels shall be berthed or moored by you in such manner and position as we may require and unless otherwise agreed adequate warps and fenders for the Vessel shall be provided by you.
4.3 The Owner shall ensure that dinghies, fenders, rafts and all other equipment shall be stowed aboard the Vessel, unless a Berth or storage facility is separately provided by the Company and paid for by the Owner and the Owner shall ensure that no items of boats, gear, fitting or equipment, supplies, stores or similar shall be left upon the Pontoon, jetties or car parks.
4.4 No Vessel, when entering or leaving or manoeuvring in the Marina, shall be navigated at such a speed or direction or in such a manner as to endanger or inconvenience other vessels in the Marina. Vessels are at all times subject to the speed restrictions, directions and all byelaws of Milford Haven Port Authority, Milford Docks Company and all Piloting Directions and General Directions, as may be amended from time to time.
4.5 The Owner must at all times comply with all and any traffic control instructions (including but not limited to VHF, traffic control signal lights or any other method that may be operational in the Marina or Premises).
4.6 All Vessels must obtain permission from the Company before entering the Marina to berth alongside the Pontoon and must at all times act in accordance with all instructions given by us.
4.7 No berthing, sail boarding, swimming, fishing, waterskiing, water scooting, jumping, diving or similar activities are permitted within the Marina or Premises at any time. Small children should wear life jackets and they must have an adult in attendance at all times. Children are the responsibility of their parents or guardians and should be supervised at all times so they are not a nuisance or danger to themselves or others. You are responsible for preventing their children from entering signed restricted areas.
4.8 All Vessels are lifted, moved or stored at the Owner’s risk.
4.9 It is prohibited to remove any wedges, shores, timbers from below any Vessel ashore which is in the Storage Ashore Accommodation.
4.10 Vessels stored ashore at the Premises will be launched or put afloat as near to the specified period as in the Company’s opinion tide, weather conditions and available facilities permit and in such sequence as to avoid moving other vessels for this purpose and also so as to make the most economical use of the facilities at the Company’s disposal. Subject to any express written agreement to the contrary, any launch or recovery date is given in good faith and is not guaranteed.
4.11 Car parking facilities are not guaranteed by the Company. In the event that parking is available, Owners and their crew are required to park their vehicles in such position and in such a manner as shall from time to time be directed by the Company. Under no circumstances may any vehicle be parked or left so as to obstruct the roadways, walkways, footpaths, slipways, craneage or access points at the Marina or on the Premises. In default, the Company reserves the right to remove any such vehicle by craneage or towing and to charge the Owner for the cost thereof. The Company shall not be liable to the Owner for any loss, cost or damage suffered or incurred by the Owner where such action is taken. No tent, caravan or other vehicle adapted for sleeping may remain on the Company’s Premises for any period whatsoever except with prior written consent from the Company.
5. BERTH ALLOCATION
Nothing in this Agreement shall entitle the Owner to the exclusive use of a particular Berth but shall use any such Berth as is from time to time allocated to you by the Company. If at any time during the period of this Agreement the Berth previously allocated by the Company to the Owner is not being used by the Owner for mooring the Vessel, then the Company shall be entitled to moor or permit a third party to moor a vessel at such Berth and the Company shall be entitled to all income (if any) arising.
Upon the Owner returning his Vessel to the Marina, the Company shall use all reasonable endeavours as soon as practicable to make such Berth or any alternative berth available to the Owner. The Owner shall give to the Company not less than 24 hours prior notice of the Owner’s intention to return his Vessel to the Marina.
6. COMMERCIAL USAGE
6.1 Except with the prior written consent of the Company (which may be withheld at the Company’s sole discretion), no part of the Company’s Marina or Premises or any Vessel or vehicle situated therein or thereon shall be used by the Owner for any commercial purpose, including without limitation hiring, embarkation or the embarkation of charter parties, sale or demonstration for sale or hire of the Vessel. For the avoidance of doubt, the occasional use of the Vessel by a personal friend of the Owner on payment to the Owner of a contribution towards the actual running cost of such Vessel shall not be deemed a commercial purpose hereunder, provided always that the Owner shall upon request by the Company supply to the Company with full details in writing of all such use.
6.2 Where written consent is granted by the Company in accordance with clause 6.1, we reserve the right to impose an additional fee charge, and impose further conditions and or restrictions if deemed necessary by us in the interests of good estate management.
6.3 Except with the prior written consent of the Company (which may be withheld at the Company’s sole discretion), no heavy, large, commercial, fishing or any such like vessel is permitted to berth alongside the Pontoon located in the Marina.
7. DISPLAYING OF NAME
7.1 The name of the Vessel must be clearly displayed on the Vessel in a prominent position making it easily identifiable.
7.2 All items of the Vessels gear, tenders, dinghies, trailers and all other equipment related to the Vessel must also be clearly marked with the Vessels name.
8. SALE OF VESSELS
8.1 The Company strictly prohibits the sale of Vessels whilst moored or stored at its Premises, without the prior written consent of the Company.
8.2 Owners are not permitted to display a “for sale” notice on the Vessel whilst at the Marina or Premises, or place a “for sale” notice at the Company’s offices without the prior written consent of the Company.
8.3 In the event that consent is granted in accordance with clause 8.1 above, the Owner (or appointed agent) must be present at all times during which the Vessel is to be viewed.
8.4 Vessels changing ownership under any sales will not retain the Berth or Storage Ashore Accommodation and this Agreement shall terminate immediately on completion of such sale, unless specifically agreed otherwise in writing by the Company. Upon termination under this clause, the Owner shall immediately pay to the Company the entire Fee (which shall include the Fee relating to the unexpired portion of the rental period).
8.5 The following clause shall apply where there is a simultaneous sale of one vessel and purchase of another vessel by the Owner during the term of the Agreement:
8.5.1 In the event that you upgrade to a larger vessel during the term of this Agreement and whilst still in contract, as a gesture of goodwill we will only charge you the tariff for the difference between the smaller vessel and the new larger vessel purchased. The Fee will be amended accordingly and we will add it to the contract for the remainder of the term of the Agreement;
8.5.2 In the event you downgrade to a smaller vessel during the term of this Agreement and whilst still in contract, you will be liable for the Fee as set out in the Application for the remainder of the term of the Agreement. The Fee shall not be amended or reduced in such circumstances.
9. PERSONAL NATURE OF THE AGREEMENT
This Agreement is personal to you and relates to the Vessel described in the Application and as such, it may not be transferred or assigned to a new Owner or to a different Vessel, either temporarily or permanently, without the express written consent of the Company.
10. WORK ON VESSEL
10.1 No work shall be done to the Vessel, gear, equipment or other goods while in or on the Marina or the Premises except by the Company (unless with the prior written consent of the Company which may be withheld at the Company’s sole discretion). This restriction shall not apply to minor running repairs or minor maintenance of a routine nature by the Owner, his regular crew, or members of his family, provided always that any such minor running repairs or minor maintenance of a routine nature does not cause any nuisance or annoyance to any other users of the Marina or Premises or any person residing in the vicinity. No painting or hot works are to be undertaken either on or alongside the Pontoons. In the event that the Owner wishes to undertake any painting or hot works, it may only do so with the prior written consent of the Company and the Owner shall be required to move the Vessel to a location specified by the Company for such tasks to be carried out.
10.2 In the event that consent is granted by the Company in accordance with clause 10.1, the Company reserves the right to require the Owner to move the Vessel to a designated area of the Marina or Premises or a specific berth or dock before such work may be carried out.
10.3 In the event that work is permitted in accordance with this clause 10, the Owner shall ensure that all work carried out to a Vessel in or on the Premises is carried out in a safe, workmanlike and tidy manner and does not cause a nuisance or annoyance to others or damage to any vessel, structure or equipment, and that all reasonable steps are taken to minimise any potential nuisance that may be caused by works on any Vessel. No tools or equipment shall be placed or left on any part of the Marina or Premises and Owners shall ensure that no spillage of liquids is occasioned. All waste materials shall be removed by the Owner after any work on a Vessel. The Company shall charge the Owner for removing any tools, equipment or waste materials and making good any damage to the Marina or Premises and any such remedial work shall be charged to the Owners at the Company’s publicised hourly rates or at the cost incurred by the Company to third party contractors.
10.4 Any outside contractor engaged to work on any vessel must satisfy all of the Company’s requirements in order to obtain a valid work permit. Work permits are issued and can be terminated at the discretion of the Company.
10.5 The Owner is responsible for ensuring that every person or company carrying out any works to the Vessel is adequately insured and hereby indemnifies the Company against any claim or damage suffered directly or indirectly by the Company arising out of carrying out of such work or any shortfall in the adequacy of such insurance.
10.6 The Company shall have the right to moor, re-berth, move, board, enter or carry out any emergency work on the Vessel if in the Company’s opinion such be necessary for the safety of the Vessel or the safety and/or convenience of other users of the Marina or Premises or for the safety of the Marina or Premises, plant and equipment and the Owner shall pay the Company’s reasonable charges for any such action.
10.7 Company employees are not permitted to carry out work on Vessels except in their capacity as Company employees. The Company accepts no responsibility for work carried out by any employee unless arranged by the manager and properly authorised by the Company.
11. RIGHTS OF SALE AND OF DETENTION
11.1 By entering into this Agreement, you agree that we shall have a general right (“a general lien”) to detain and hold your Vessel or other property pending payment by you of any sums due to us. If the Agreement is terminated for any reason or expires while we are exercising this right of detention, the general lien will survive any such termination or expiry and we shall be entitled to charge you at the Company’s daily rate for each day between termination or expiry of this Agreement and the actual date of payment or provision of security satisfactory to us by you and removal of the Vessel from the Marina and/or Premises. You may at any time at the Company’s discretion be entitled to remove the Vessel or other property upon providing satisfactory security, for example a letter of guarantee from a Bank or a cash deposit, sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for the Company’s prospective legal costs.
11.2 Where we accept a Vessel, gear, equipment or other goods for berthing, repair, refit, maintenance or storage we do so subject to the provisions of the Milford Docks Act 1874, the Harbours Docks and Piers Clauses Act 1847, the Torts (Interference with Goods) Act 1977, and any other statute or regulation which confers on the Company or harbour master a right to seize, arrest, distrain or sell the Vessel and/or any of its contents or other property (“the Acts”). For the avoidance of doubt, in the event that any notice is served under the Acts, the general lien defined in clause 11.1 above shall remain in full force and effect until the debt with interest and, where the debt is contested, a reasonable provision for the Company’s prospective legal costs has been received by the Company.
11.3 The Owner shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs reasonably incurred and all other reasonable professional costs and expenses), claims or proceedings instituted against or incurred by the Company or its servants or agents as a result of any action taken under this clause 11.
12. TERMINATION BY US
12.1 We shall have the right (without prejudice to any other rights and remedies) to terminate this Agreement immediately in the following circumstances:
12.1.1 you fail to make any payments due to us under this Agreement as they fall due, and have failed to remedy such a breach by making the due payment including any accrued interest within 14 days of having been served with written notice by us informing you of the breach;
12.1.2 you are in material or persistent breach of any of the terms of this Agreement and such breach is incapable of remedy and we have served written notice on you to this effect;
12.1.3 you are in material or persistent breach of any of the terms of this Agreement and where the breach is capable of remedy, have failed to remedy such a breach within 14 days of having been served with written notice by us informing you of the breach. Where the breach is serious or poses an immediate risk or threat to the health, safety or welfare of any other person or property, the time specified for remedy in the notice may be reduced and may be immediate or extremely short in duration;
12.1.4 in the reasonable opinion of the Company, you, the crew, your visitors or guests act in an inappropriate, violent or abusive way towards the Company or its staff or other users of the Marina or Premises whilst on the Marina or Premises, or display any sort of anti-social behaviour;
12.1.5 in the reasonable opinion of the Company, you, the crew, your visitors or guests cause unacceptable noise, nuisance or annoyance to the Company or its staff, to any other users of the Marina or Premises or any person residing in the vicinity;
12.1.6 in the reasonable opinion of the Company, you, the crew, your visitors or guests are a danger to the Company or its staff, to any other users of the Marina or Premises or any person residing in the vicinity;
12.1.7 in the reasonable opinion of the Company, you, the crew, your visitors or guests are in breach of, or act in a way which is contrary to, any Applicable Laws, and all health and safety rules and regulations and security requirements that apply at the Marina and premises
12.2 The Company shall not be liable for delay or failure to perform this Agreement if we are unable to provide the usual berthing facilities, storage ashore facilities and/or Marina Services because our business is frustrated or is no longer financially viable due to circumstances beyond our control including, without limitation, Act of God, fire, explosion, act of terrorism, civil disturbance, flood, storm, natural disaster, pandemic or epidemic, key equipment or infrastructure failure, loss of access by sea or land, act of any governmental or quasi governmental body or environmental authority (including variation, refusal or revocation of any licences or consents) and either we or you shall be entitled to terminate this Agreement immediately by notice to the other in those circumstances. For the avoidance of doubt, if you continue to use some or all of the usual berthing facilities, storage ashore facilities and/or Marina Services in such circumstances you will still be liable to pay the applicable Fee.
12.3 In the event of termination under clause 12.2, the Company shall refund the Owner the Fee relating to the unexpired portion of rental period.
12.4 For the avoidance of doubt, the Owner will not be entitled to any refunds in the event of termination of the Agreement pursuant to clause 12.1.
12.5 Upon termination under clause 12.1, the Owner shall immediately pay to the Company the entire Fee (which shall include the Fee relating to the unexpired portion of the rental period).
12.6 Without prejudice to our right of termination under this Agreement, we reserve the right to refuse you, the crew, your visitors or guests access to the Marina and/or Premises and may ask you, the crew, your visitors or guests to leave the Marina and/or Premises immediately if, in the reasonable opinion of the Company, you, the crew, your visitors or guests are in breach of any of clauses 12.1.4 to 12.1.7 (inclusive).
13 TERMINATION BY YOU
13.1 Unless otherwise specified in the Special Conditions or clause 13.2 applies, this Agreement is a fixed term contract and you have no right to terminate the Agreement prior to the end of the agreed term specified in the Application, or no right to receive a refund for the unexpired period of the Agreement (except (i) in circumstances where we have breached a material term of the Agreement and, if the breach is remediable, failed to remedy such breach within 21 days of receiving notice so to do or (ii) in the circumstances set out in clause 12.3).
13.2 The Company may, at its absolute discretion, allow you to terminate the Agreement prior to the end of the agreed term specified in the Application. In the event that the Company exercises such discretion, you must (i) provide the Company with at least 30 days written notice of your wish to terminate the Agreement (such notice to expire at the end of the period specified in the Application); (ii) pay to the Company any applicable revised Fee applied by the Company for the period that the Vessel was actually at the Marina or Premises (including the duration of the notice period) which will be based on the Company’s published daily charges (or such other fee as the Company may reasonably decide) for such period and shall not include any long term berthing or storage ashore discounts which may have been applied at the time of making the Application.
13.3 For the avoidance of doubt, where the end of the agreed term specified in the Application is less than 30 days from the date you wish to terminate the Agreement (meaning that sufficient notice cannot be given in accordance with clause 13.2), you will be unable to terminate the Agreement and shall remain liable for the Fee which applies for the duration of the full term specified in the Application.
14 CONSEQUENCES OF TERMINATION
14.1 All payments to the Company by the Owner under this Agreement (including without limitation outstanding sums due for any unexpired period of the Agreement) shall become immediately due and payable upon expiry or termination of this Agreement whether under clause 12, clause 13 or otherwise.
14.2 The Owner shall be required to remove the Vessel and any other property of yours from the Marina and/or the Premises immediately upon expiry or termination of this Agreement whether under clause 12, clause 13 or otherwise. If you fail to remove the Vessel on expiry or termination of this Agreement whether under clause 12, clause 13 or otherwise, we shall be entitled:
14.2.1 to charge you the Company’s published daily charges (or such other fee as the Company may reasonably decide) which would have been payable by you to us if the Agreement had not expired or been terminated for the period between the expiry or termination of the Agreement and removal of the Vessel from the Marina and/or Premises; and/or
14.2.2 at your risk (save in respect of loss or damage caused by our negligence or other breach of duty during such removal) to remove the Vessel from the Marina and/or Premises and thereupon secure it elsewhere and charge you for all costs reasonably arising out of such removal including alternative berthing or storage fees.
14.3 Any obligation of the Company towards Vessels or goods left at its Marina or Premises ends upon the expiry or termination of the Agreement and the Company accepts no responsibility for loss or damage to any Vessel or goods left at its Marina or Premises without its consent.
15 FEE AND PAYMENT
15.1 The Fee will be calculated by reference to the Company’s published charges, which may be amended from time to time, and shall be based on the measurement of the Vessel as described at clause 17. The Fee due and payable by the Owner shall be set out in the Application.
15.2 You must pay the Fee to the Company as specified in the Application, namely either (i) in advance upon execution into this Agreement or, (ii) by monthly direct debit instalments (in advance). Where the Fee is to be paid by monthly direct debit instalments, you must complete and sign the necessary direct debit mandate form upon execution of this Agreement.
15.3 The Fee shall include:
15.3.1 the berthing or storage ashore of the Owner’s Vessel (as applicable);
15.3.2 the use of toilets, showers and washbasins in dedicated facilities at the Premises;
15.3.3 the use of the car park at the Premises;
15.3.4 the use of receptacles for the deposit of domestic waste (including recycling and domestic refuse but excluding any hazardous or toxic substances);
15.3.5 supply of water on Pontoons (if applicable);
15.3.6 receiving of post and parcels on your behalf;
15.3.7 reasonable oil disposal.
15.4 The Company is entitled to charge for all Marina Services (which does not include those services set out in clause 15.3) and payment for all such Marina Services must be made to the Company at the time of the provision of such services, or as otherwise specified by the Company (including without limitation by direct debit). The Company will not be liable to the Owner in the event of a temporary failure or unavailability of any of the Marina Services but agrees to use its reasonable endeavours to ensure that the affected services and or facilities are repaired as soon as reasonably possible.
15.5 If you fail to make payment on the date such payment falls due, without affecting any other right or remedy we may have against you, the Company shall be entitled to take all or any of the following steps:
15.5.1 terminate this Agreement in accordance with clause 12.1.1;
15.5.2 suspend the provision of any services to you (including but not limited to the provision of a berth or Storage Ashore Accommodation);
15.5.3 prevent the Vessel from leaving the Marina or Premises;
15.5.4 lift the Vessel out on to our hard standing for which all charges incurred will be for the Owners account;
15.5.5 charge you interest (both before and after any judgement) on the amount unpaid at the rate of 4% above the Bank of England base rate which may be calculated daily up to the date of actual payment;
15.5.6 charge and claim from you the cost of recovering any overdue amount including but not limited to legal costs;
15.5.7 take any action as specified in clause 11 of this Agreement.
15.6 Unless otherwise agreed in writing by the Company, the entire Fee is payable irrespective of whether the berth or Storage Ashore Accommodation is occupied or not by the Vessel. No refunds will be made by the Company to the Owner for any period during the Agreement where the berth or Storage Ashore Accommodation is not occupied.
15.7 The Owner must notify the Company in writing if the berth or Storage Ashore Accommodation is not to be occupied by the Vessel for a continuous period of more than 2 calendar months during the term of this Agreement. The Company must be notified prior to departure for any such absence. In such circumstances, the Company may at its discretion allow the Owner to extend the term of this Agreement for a set period in the event that the berth or Storage Ashore Accommodation is not occupied by the Vessel for that continuous period, provided always that any such extension shall be on the following basis:
15.7.1 where the berth or Storage Ashore Accommodation is not occupied by the Vessel for a continuous period of less than 2 calendar months, no contract extension will be granted and the full Fee will be applicable and due and payable, following which the Agreement will automatically renew in accordance with the Special Conditions;
15.7.2 where the berth or Storage Ashore Accommodation is not occupied by the Vessel for a continuous period of more than 2 calendar months but less than 3 calendar months, the full Fee will continue to be applicable and due and payable during the absence but a contract extension of one calendar month will be added to the end of the term of this Agreement at no cost to the Owner, following which the Agreement will automatically renew in accordance with the Special Conditions;
15.7.3 where the berth or Storage Ashore Accommodation is not occupied by the Vessel for a continuous period of more than 3 calendar months, the full Fee will continue to be applicable and due and payable during the absence but a contract extension of two calendar months will be added to the end of the term of this Agreement at no cost to the Owner, following which the Agreement will automatically renew in accordance with the Special Conditions.
15.8 To reserve a berth in the Marina or Storage Ashore Accommodation on the Owners required dates (subject to availability), the Company may in some circumstances and at its absolute discretion, require the Owner to pay a reasonable non-refundable reservation fee. In the event that the Owner cancels the reservation at any time or fails to arrive at the Marina or Premises at the beginning of the reserved period, for any reason, the Owner agrees that the reservation fee shall not be refunded. In the event that the Owner arrives at the Marina or Premises as scheduled, the reservation fee will form part of the Fee.
15.9 All monies which are due to the Company by the Owner (including without limitation the Fee and any charges incurred in relation to the Marina Services) must be paid to the Company before the Vessel leaves the Marina and/or the Premises.
15.10 The Company reserves the right at its absolute discretion to undertake personal credit checks against the Owner.
15.11 In the event that the Company is unable to collect the Fee when it falls due (for example as a result of a cheque bouncing or a direct debit payment failing), the Company may at is discretion charge the Owner an administration fee of up to £20.00 for each failed attempt which is made by the Company.
16 HEALTH, SAFETY AND THE ENVIRONMENT
16.1 During the term of this Agreement you shall, and shall procure that the crew and all your visitors and guests shall:
16.1.1 comply with all Applicable Laws;
16.1.2 observe all health and safety rules and regulations and security requirements that apply at the Marina and the Premises.
16.2 The Owner shall take all necessary precautions against the outbreak of fire in or upon his Vessel and the Owner shall observe all statutory and local regulations relative to fire prevention (if any) which shall be exhibited at the offices of the Company. The Owner shall provide and maintain at least one fire extinguisher of a governmentally approved or fire standard type and size, in or on the Vessel in case of fire, and such extinguisher shall at all times be kept ready for immediate use and in good and efficient working order.
16.3 You shall not use:
16.3.1 a drone, powered model aircraft or any other powered flying object; or
16.3.2 Chinese lanterns, fireworks or similar,
at the Marina or Premises.
16.4 Owners shall not refuel Vessels in the Marina otherwise than in the Company’s refuelling berth.
16.5 No noisy, noxious or objectable engines, radio or other apparatus or machinery shall be operated within the Marina or Premises so as to cause any nuisance or annoyance to the Company, to any other users of the Marina or Premises or any person residing in the vicinity and the Owner undertakes for himself, his guests, and all using the Vessel that they shall not behave in such a way as to offend as aforesaid. The Owner shall ensure that halyards shall be secured so as not to cause such nuisance or annoyance.
16.6 No refuse or noxious substances or sewage shall be discharged or thrown overboard or left on the Pontoons, jetties or car parks, or disposed of in any way other than in the receptacles provided by the Company or by the removal from the Marina and Premises.
16.7 No matter shall be discharged from toilets or bilges while a Vessel is in the Marina or the Premises. In default, the Company may charge you for all damage, costs and/or clean-up costs arising out of the same.
16.8 You may only use the receptacles at the Marina and the Premises to dispose of domestic waste from use of the Vessel (including recycling and domestic refuse but excluding any hazardous or toxic substances). You may not dispose of any commercial waste, white goods, electric goods, any waste created as a result of work done of the Vessels or Vessel fit out (in accordance with clause 10 or otherwise) or any other waste we deem to be unreasonable to dispose of anywhere on the Marina and the Premises. The disposal of such non-permitted waste is your responsibility and must be disposed of away from the at the Marina and the Premises in a safe manner.
16.9 You and your crew, members of your family and any person carrying out work on the Vessel are responsible for reporting to the Company all accidents involving injury to any person or damage to any public or private property that occur in the Marina or on the Premises as soon as possible after they occur.
16.10 Pets are permitted within the Marina and Premises provided always that such pets and their actions remain the responsibility of the Owner and provided such pets are kept under the control of the Owner at all times. All dogs must kept on leads when in the Marina and Premises. The Owner shall ensure that such pets do not cause any nuisance or annoyance to the Company, to any other users of the Marina or Premises or any person residing in the vicinity.
16.11 No guarantee is given or responsibility accepted by the Company for the suitability of any berth, depth of water or facilities provided at the Marina or on the Premises. Owners shall immediately advise the Company should any defect become apparent in the Marina or Premises infrastructure including breakwater, mooring chains, ropes, buoys, pontoon berthing or water/electrical/safety appliances.
17 MEASUREMENT OF VESSELS
17.1 For all purposes the overall length or LOA of the Vessel shall be calculated including davits, bathing platforms, bowsprits, bumpkins, boarding ladders, sterndrives, outboard motors, fenders, rudders, anchors, pulpits and pushpits and any other extension of the Vessel.
17.2 The Company reserves the right re-measure the Vessel at any time whilst moored or stored at the Marina or Premises for the purpose of calculating the Fee. The Company reserves the right to back date any Fee should the Owner have supplied the Company with incorrect information at the time of arrival at the Marina or the Premises and/or on the Application.
18 OWNER’S WARRANTY TO THE COMPANY
18.1 The Owner warrants to the Company that they are the legal owner of the Vessel detailed in the Application and have the immediate right to possess the Vessel.
18.2 The Owner confirms that the information supplied on the Application is correct and undertakes to inform the Company immediately of the details of any changes to this information whilst subject to the terms of the Agreement.
18.3 Vessels berthed at the Marina or stored ashore at the Premises must be in possession of the requisite valid Boat Safety Certificate and Certificate of Registration whilst the Vessel is subject to the terms of the Agreement.
19 LIVING ABOARD VESSELS
19.1 The Owner may reside aboard a Vessel within the Marina with the prior written consent of the Company. The Company reserve the right to impose an additional fee charge in such circumstances.
19.2 It is strictly prohibited to reside on a vessel within the Boatyard.
19.3 The Owner shall be responsible for any charge incurred as a result of such residence, including but not limited to any council tax liability.
20 INTERNET ACCESS
Complimentary access to the internet is provided by the Company to users of the Marina through the Company’s wifi network (“WiFi Network”). When accessing and using the WiFi Network, the terms set out in the WiFi Policy will apply at all times. The WiFi Policy is located at the Company’s offices and on the Company’s website. We do not guarantee the availability of the internet or access to the internet via the WiFi Network at any time.
21 ACCEPTANCE AND CHANGES TO CONDITIONS
21.1 Notwithstanding the Owners failure to sign the Application, the Owner shall be deemed to have accepted the terms of this Agreement by taking up a berth at the Marina or occupying Storage Ashore Accommodation, and/or by paying the Fee.
21.2 The Agreement shall apply to all users of the Company’s Marina and Premises and may be altered added to or amended from time to time by the Company. In the event that there are any changes to the Agreement, any such amendments shall be displayed at the Company’s offices or served on the Owner, upon which such amendments shall be deemed incorporated herein.
21.3 In the event that the Owner wishes to make any variation to the terms of the Application, the prior written consent of the Company must be obtained and the Company reserves the right to amend the terms of the Agreement accordingly.
21.4 Each of the clauses of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
22 DATA PROTECTION
22.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 22 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
22.2 The Owner acknowledges that by entering into this Agreement it is providing the Company with consent to use the Owner’s data and to send to the Owner any information regarding the Marina and its operation which, in the Company’s opinion, may be of interest to the Owner during the term of this Agreement and in the future following the termination or expiry of this Agreement.
22.3 The Owner may at any time withdraw the consent provided in accordance with clause 22.2 by providing written notice to the Company withdrawing such consent and requesting that any data held in relation to the Owner is deleted or returned (which the Company shall do unless it is required by law to store such data).
If any provision or part-provision of this Agreement 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 shall not affect the validity and enforceability of the rest of this Agreement.
24.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its last known address or principal address (in any other case).
24.2 Any notice shall be deemed to have been received:
24.2.1 if delivered by hand, at the time the notice is left at the proper address or delivered to that person (as applicable);
24.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25 ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.
A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
27 LAW AND JURISDICTION
This Agreement is subject to and governed by the laws of England and Wales as applied in Wales. Any dispute arising from this Agreement shall be submitted to the exclusive jurisdiction of the Courts of England and Wales.