TERMS & CONDITIONS S

FOR FAIRIES HILL & ALTOFTS CUT

Current Full terms & Conditions available on request from; info@fairies-hill-moorings.co.uk

Correct at time of going to press, but subject to change, shown here for information only

Issue Date: 1st July 2009

Work to Vessel

All Contracts start on the 1st day of the Month.

General Conditions

Berths at the Marina shall be licensed for the periods and at the rates and terms applicable published by F.H.M at the Marina and in force at the commencement of a Contract. Details of the charges applicable to the Berth at the beginning of the Contract will be given to each licensee at the time that the Contract is granted.

The Contract shall not be automatically renewed but will end at the conclusion of the period agreed if not ended sooner by F.H.M or by the Owner under the provisions of Clause 8.

The Owner must notify F.H.M in writing of the details of any change of names of the Vessel or change of the Owner’s own name, emergency contact, address or telephone number.

Liability, Indemnity and Insurance Obligations

F.H.M shall not be liable whether in Contract, tort or otherwise, for any loss, theft or any damage of whatsoever nature suffered by any Vessel or vehicle or other property of the Owner, his crew, contractors or visitors, except to the extent that such loss, theft or damage was caused by the negligence of F.H.M.

Notwithstanding Clause 2.1 above F.H.M shall not be liable for any indirect or consequential loss or damage.

The Owner shall maintain a minimum of third party insurance in respect of himself and his Vessel, vehicles, crew, agents, visitors and contractors in a sum of not less than £2,000,000 (two million pounds) in respect of each accident or incident, including sufficient cover against full foundering, salvage and wreck removal claims. Such insurance shall be effected and maintained by a reputable insurance company authorised under the Financial Services Authority (FSA) to carry on in Britain or in Northern Ireland, insurance business of a relevant class or who has corresponding permission under the law of another member state of the European Community. The Owner shall produce the above policy or policies and evidence of payment of the premiums to F.H.M on demand besides the request to provide a copy to F.H.M on a new Contract and when the Owner renews or changes their insurance. The Owner agrees not to do anything that could lead to above policy or policies being revoked, vitiated or not renewed in the ordinary course.

F.H.M shall not be under any duty to salvage to preserve a Owner’s Vessel or other property from the consequences of any defect in the Vessel or property concerned unless it has been expressly engaged to do so by the Owner on commercial terms. Similarly F.H.M shall not be under any duty to salvage or preserve a Owner’s Vessel or other property from the consequences of an accident for which F.H.M is not responsible. However, F.H.M reserves the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment. Where it does so it shall be entitled to charge the Owner concerned on a normal commercial charging basis, (and, where appropriate, to claim a salvage reward).

The Owner shall ensure that the Vessel is insured for any lifting, mast removal and storage ashore and produce the insurance policy in accordance with Clause 2.3 to F.H.M before booking any boatlift operation through F.H.M.

Commercial Use

Except with the previous written consent of F.H.M, the Owner shall not use any part of the Marina or Vessel for any commercial purposes including, but without limitation hire of the Vessel, embarkation of charter parties, rental accommodation or advertising of any kind. Please note that if F.H.M does give it's written consent for commercial use, such use will be subject to further terms and conditions and to the payment of additional fees, over and above those referred to in these General Conditions. For the avoidance of doubt, the occasional use of the Vessel by a friend of the Owner on payment to the Owner of a contribution towards the actual running costs of the Vessel shall not be deemed to be a commercial purpose.

On request, the Owner shall supply to F.H.M, full details in writing of all such use of the Vessel by friends or relations in accordance with Clause 3.1 above.

Sale of Vessel

The Berth is not transferable to the new Owner without permission from F.H.M and payment of a Sale on Berth Fee where applicable.

The Owner shall not offer any Vessel for private sale, without the proper consent of F.H.M while it is in the Marina. If F.H.M consents to the Vessel being offered for sale while it is in the Marina, F.H.M reserves the right to charge the Owner a Sale on Berth Fee to allow an alternative party to occupy a F.H.M Berth. The Sale on Berth Fee is also applicable in the scenario when the boat is sold to a customer within the Marina. Proof of sale value is required for all situations.

Within seven days of any sale, transfer or mortgage of any Vessel, the Owner shall notify F.H.M in writing of the name and address of the purchaser, transferee or mortgagee, as the case may be if the new purchaser is remaining at the Marina.

Condition of the Vessel

The Owner shall ensure that the Vessel remains in a seaworthy condition always while it is at the Marina.

All Vessels must be kept clean and in reasonable repair always. Should a Vessel be damaged, then repair works must be carried out as soon as is reasonably possible. Tarpaulins and temporary covers are allowed as a temporary cover only.

Vessels berthed at F.H.M must have the required valid Boat Safety Certificate and British Waterways Craft Licence which shall always be prominently displayed on the Vessel. Any Vessel registered on the Small Ships Register must display its SSR number always. Any exemptions to this must be authorised in writing by FHM Management.

Besides the requirements set out in Clause 5.1, the Owner shall ensure that the Vessel remains in an aesthetically pleasing condition while it is at the Marina. For the avoidance of doubt, F.H.M shall be the sole judge of what is considered aesthetically pleasing by for the condition of most the vessels moored at the Marina.

Minor running repairs or minor maintenance works of a routine nature, but not limited to light sanding, staining, minor painting etc which does not cause noise, disturbance, disruption or pollution to the Marina or other Marina users may be carried out to your Vessel without F.H.M’s permission. Extensive external sanding, angle grinding, welding, internal refit, spray painting etc are considered major works and cannot be carried out within the Marina unless with F.H.M’s prior consent and in accordance with Clause 6.4. When carrying out work, all F.H.M facilities must be suitably protected, kept clean and tidy always, and appropriate Health and Safety issues adhered to. We reserve the right to charge you for the full cost of any remedial works required as a result of your work.

Prior consent for work to be carried out at the Marina shall not, without good cause, be withheld where the work is to be carried out in strict accordance with the document, Working on Craft on British Waterways Property where:

6.2.1 the work to be carried out is work for which F.H.M would normally employ a specialist subcontractor; or

6.2.2 F.H.M is satisfied that the whole of the work is remedial and not servicing and is being carried out under warranty by the manufacturer supplier of the Vessel or any part of her equipment to which the warranty relates; or

6.2.3 F.H.M has set aside an area of the Marina where the Owner may carry out work on the Vessel and the work for which consent is sought is restricted to that area.

The Owner must ensure that a copy of the contractor’s third party liability insurance policy accompanies the request for consent referred to in Clause 6.1 above. The Owner must also ensure that contractor are only employed to carry out such repairs that they are qualified to undertake and that the contractors have the appropriate and required accreditations. For the avoidance of doubt, F.H.M reserves the right to refuse its permission for the work once it has had an opportunity to consider the risk of the contractor.

The Owner will only be permitted to undertake works on their craft, for which they have deemed competencies in being experienced in the carrying out of the required operation or the use of any power tools, such as welders, grinders or ho cutting equipment that would require professional certification. Operations that require the use of such equipment should be advised to the Manager or Supervisor for the Marina before commencement. For the avoidance of doubt, F.H.M reserves the right to prevent any person from operating such equipment in the Marina.

If the Owner is using contractors to carry out any work, the Owner must ensure that the contractors register with the Office on their arrival and pay a registration fee, details of which are available on request.

The Contractor must register with the Office or to the pre-arranged person on arrival and on departure of each day.

Any contractors must follow the F.H.M registration process, providing copies of their liability policy. The Contractor Registration Request must be submitted to

F.H.M. Any contractors will only be permitted to work on site once the Manager or Supervisor for that Marina has authorised all documents and provided a site induction.

F.H.M reserves it's right to insist that contractor working on the Vessel for the Owner leave the Marina if either the Owner or the Contractor has failed to comply with this Clause 6.

F.H.M also reserves it's right to withdraw its consent if any work is carried out in contravention with relevant Health and Safety legislation or approved codes of practice.

In carrying out any work the Owner shall not cause any nuisance and agrees to use his best endeavours to ensure that his contractor does not cause any nuisance to F.H.M and/or to any other users of the Marina and/or to any person residing near the Marina. If F.H.M receives any complaints regarding the work from any person using the Marina and/or from any person residing in the vicinity of the Marina. F.H.M reserves the right to either request a review so as to minimise or remove the nuisance or to withdraw its consent for the work.

In the event that F.H.M withdraws its consent for the work for any reason set out in this Clause 6, the Owner shall immediately, (save to the extent that the consent may further be extended in accordance with Clause 6.8), instruct the contractor to leave the Marina forthwith and the Owner shall immediately begin restoring the area in which the work was being carried out, into the condition it was in prior to the commencement of the work, including undertaking any remediation work that F.H.M decides is required, and shall complete same within a reasonable time from commencement of the work.

Prior to changing or modifying a Vessel, the Owner must receive written permission from F.H.M in order for the Vessel to remain at the Marina. This permission will not unreasonably be withheld.

Fees

Contract fees are calculated on a per Berth rate or Length Over All (LOA) of the Vessel as measured, including bowsprit of stem fittings, bathing platforms, out-drives or transom hung ladders and stern mounted dinghies. There is a minimum charge of 6.4 metres.

All Contract fees are payable in advance, instalment payments can only be made on 12 month contracts. One off payments are due no later than the start of the contract period. All fees are inclusive of standard rated VAT. Fees will be adjusted to reflect any VAT changes. Contract fees are subject to an annual review and notice of any changes to the fees will be deemed to have been sufficiently given by F.H.M by the display of the amended Contract fees in the Office.

Full details of all F.H.M charges in respect of this Clause 7 may be found at the Office and are incorporated into these General Conditions by reference, F.H.M reserves the right to alter these charges from time to time.

All payments may be made in sterling by crossed cheque (if backed by cheque guarantee card ) and made payable to F.H.M or cash.

F.H.M reserves the right to exercise a general lien on any Vessel and/or other property belonging to the Owner while in or at the Marina until such time as any money due to F.H.M in respect of the Vessel and/or property, whether on account of rental, storage, commission, access or berthing charges, work did, administration charges, legal costs or otherwise shall be paid by the Owner. In the event that the aforementioned lien remains unsatisfied for the specific period of time notified in writing to the Owner by F.H.M, the Vessel will be sold on brokerage and the proceeds of the sale used to satisfy the monies owed by the Owner to F.H.M. Any remaining monies after this will be remitted to the Owner.

Payments made under these General Conditions shall be made without deductions. The Owner shall punctually pay to F.H.M all sums owing to F.H.M under these General Conditions. F.H.M reserves the right to levy an administration charge in the sum of £20 plus VAT where applicable per letter against the Owner in the event that it becomes necessary for F.H.M or F.H.M’s appointed legal advisors to write to the Owner to seek payment of any overdue payment or to advise of F.H.Ms intention to begin legal proceedings against the Owner. For the avoidance of doubt, the Owner accepts that any administration charge levied against him by F.H.M in the circumstances set out in this Clause 7 represents a genuine pre-estimation of loss on the part of F.H.M. In addition to the administration charge the Owner will be liable for the payment of interest at the rate of the current Bank of England Base Rate plus 8% on any sum owing to F.H.M from the date o the third letter that F.H.M or F.H.M’s appointed legal advisors are obliged to write to the Owner seeking payment o a debt until the payment of the debt by the Owner.

F.H.M will only make refunds of payments made under these General Conditions in the circumstances specifically provided for under these General Conditions and for no other reason whatsoever.

F.H.M must be in receipt of full settlement for the previous Contract before a new Contract will be issued unless a formal payment plan is in existence that covers the outstanding amount. Any deviation of this will lead to termination of the Contract under Clause 8.

F.H.M will not accept payments from a statutory body.

Termination

Either the Owner or F.H.M may end a Contract by giving the other 28 days notice in writing.

In the absence of written notice F.H.M will assume that the customer gave 28 days on the date that it became aware the Vessel had vacated the Marina permanently.

Without prejudice to any other rights F.H.M may have in respect of any breaches of the General Conditions by the Owner, F.H.M may end the Contract forthwith in the following circumstances:

If the owner commits a breach of any term of the General Conditions which are capable of remedy but which is not cured within 14 days of the written notice to the Owner, at the Owner’s last known address, specifying the breach and requiring its remedy; or

If the Owner commits a breach of any term of the General Conditions which are not capable of remedy.

If the Owners actions prejudice the effective or commercial operation of F.H.M’s business and the delivery of this contract.

8.3 On termination by F.H.M pursuant to Clause 8.1 above, F.H.M shall

refund to the Owner the un-expired portion as a fraction of days to the full Contract period of the mooring fees subject to a right of set-off in respect of any monies owed by the Owner to F.H.M.

8.4 On expiry of the 28 days referred to in Clause 8.1 or on F.H.M ending this agreement pursuant to Clause 8.2, the Owner shall be required to take delivery of his Vessel and remove it from the Marina within 7 days. If the Owner fails to take delivery and remove his Vessel within this period, F.H.M shall be entitled:

8.4.1 to charge the Owner the amount which would have been payable by the Owner to F.H.M if the agreement had not been ended for the period Between termination of the agreement and removal of the Vessel from the Marina; and/or

8.4.2 to remove the Vessel from the Marina and secure it elsewhere and then charge the Owner with all costs arising out of such removal, including alternative berthing fees; and or to sell the Vessel by auction and deduct from the sale proceeds all costs arising out of such sale, including but not limited to, removal costs, alternative berthing fees, auction fees, administration fees and legal costs; and arrears of Contract fees, accrued interest and any charges made pursuant to Clause 8.4.1 provided that F.H.M will account to the Owner thereafter in respect of any net sale proceeds.

If the Vessel is removed by British Waterways or other authorised body then the day the Vessel is removed from F.H.M , the Contract is deemed ended, with the value of the Contract being reduced by the 10% refund scale as noted in Clause 8.6 below as if the Contract had ended on the last day of the month the Vessel was removed.

F.H.M’s Right of Sale

The amount to be refunded fits with the complete number of months remaining e.g., if a customer provides notice on 14 March, the refund is calculated on complete months from 1 May.

Refund Policy

There is no refund due on a Contract excepts on the termination of a 12- month Contract which is detailed above in Clause 8.6. Refund cheque's will not be paid until after the Customer has left the Marina.

Rights of F.H.M to Re-Berth and Move Vessels

F.H.M reserves the right to moor, re-berth, move, board, enter or carry out emergency work on any Vessel if, in F.H.M’s opinion, it is necessary to do so for the purpose of trying to: avoid damage to the Vessel or to any other vessel in the Marina and/or ensure the safety of other users of the Marina; and/or ensure the safety of F.H.M’s staff, premises, plant or equipment.

F.H.M also reserves the right to moor, re-berth or move the Vessel, and/or to move any equipment and/or goods belonging to the Owner, if, in F.H.M’s opinion, it is necessary for the good management, safety or security of the Marina.

Any vessel or other property left at the Marina in breach of the terms of this Agreement will be subject to the provisions of the Torts (Interference with Goods) Act 1977 ( the Act ) which confers on F.H.M as bailee a right of sale exercisable in certain circumstances.

In circumstances where the Act does not apply or where F.H.M cannot be regarded as a bailee of the Vessel, section 12 and Schedule 1 of the Act is expressly incorporated into these General Conditions except that where the term bailee appears in the relevant provisions of the Act it is to be replaced with F.H.M and where the term Baylor appears it is to be replaced with Owner and where the term bailment appears it is to be replaced with General Conditions

F.H.M will not exercise the right of sale described in this Clause 14 until it has given notice to the Owner or has taken reasonable steps to trace him in accordance with the Act.

Non-Assignability

This agreement is personal to the Owner and his Vessel. The Owner must not assign any of his rights or obligations under this agreement to any third party or to any Vessel not named in the F.H.M Contract signed by the Owner.

Non-Exclusivity of Berths

Nothing in these General Conditions shall entitle the Owner to the exclusive use of a particular Berth. Vessels shall be berthed or moored by the Owner in such a manner and position as F.H.M shall direct.

Once F.H.M has allocated a Berth to the Owner, the Owner shall not utilise a different Berth unless such a change of location is approved in writing prior to the Owner taking such action or is required by emergency circumstances.

Unless otherwise agreed in writing by F.H.M, all necessary warps and fenders shall be provided by the Owner. F.H.M reserves the right to replace warps and re-secure any Vessel in the interests of the safety at the Owner’s expense without prior notification.

Safe Navigation of Vessels in the Marina

When entering or leaving or manoeuvring in the Marina, the Owner must ensure that the Vessel is not navigated at such a speed or in such a manner as to endanger or inconvenience other vessels.

The Owner must ensure that his Vessel is no navigated by anyone who is under the influence of alcohol or drugs.

Prohibition of Nuisances

No noisy or objectionable engines, radios or other apparatus or machinery shall be operated at the Marina so as to cause a nuisance or annoyance to F.H.M or to any other users of the Marina or to any person residing in the vicinity.

No anti-social behaviour or abuse, verbal or physical shall be tolerated towards customers or staff at the Marina. Immediate termination of Contract will occurs and criminal prosecution may be considered.

The Owner shall use his best endeavours to ensure that himself, his crew, contractors and visitors do not cause a nuisance as described in this Clause 15.

Disposal of Refuse

No refuse shall be thrown overboard or left on the pontoons, jetties or car parks. Any domestic waste shall be disposed of in the receptacles provided by F.H.M or be removal from the Marina by the Owner. Non domestic waste must be removed from the Marina by the Owner.

The use of sea toilets are strictly prohibited at the Marina. Any Customer whose Vessel is found to be using such a facility will have his Contract ended as per Clause 8.2.

Spillages

The Owner should immediately inform F.H.M of any spillage of oil, paint or any other pollutant into the Marina. The Owner should also take such steps as are reasonably practicable in the circumstances to minimise the spread of the pollutant and warn other users of the Marina of the problem. Costs associated with any clean up operation may be charged to the Owner.

Stowage and Use of Dinghies

Dinghies and tenders shall not be used in the Marina without the prior permission of the Marina Manager or Supervisor.

Storage of Gear

No fittings, equipment, supplies, stores or any other property belonging to the Owner shall be stored or left at the Marina other than as directed by F.H.M.

Except while transporting items to or from the Vessel, the Owner must not leave or store any items on the pathways, walkways and car park’s of the Marina. No ropes, cables, hoses, wires etc. must be trailed across paths that present a trip hazard.

Vehicle Parking

20.1 Subject always to the availability of parking spaces, the Owner his crew, contractors and visitors are required to park their validly taxed motor vehicles in such a position and such a manner as directed by F.H.M.

Security

The Owner, his crew, contractors and visitors are required to ensure that all security gates are closed after use.

Health and Safety Fire Precautions

Owner shall abide by all relevant health and safety regulations, codes of practice and any health and safety guidance issued by F.H.M while using the Marina.

The Owner shall take all necessary precautions against the outbreak of fire in or on his Vessel and the Owner shall observe the statutory and local regulations relating to fire prevention exhibited in the Office. The Owner shall provide and maintain in good working order at least one fire extinguisher of a EU government approved or BSI standard type and size, in or on the Vessel and readily available for immediate use in case of fire.

The lighting of open fires are strictly prohibited. All barbecues and cookers must not be left unattended and must be properly extinguished. The area around the equipment must be left in a clean and tidy condition.

Persons under the age of 16 years invited to the Marina by the Owner is the sole responsibility of the Owner and must remain under the Owner’s supervision at all times. They must not be allowed to cause a nuisance to any other user of the Marina as per Clause 15.

The Owner must provide F.H.M with current address and contact details and telephone numbers so that the Owner can be contacted in an emergency.

Diving, Bathing

Diving and bathing in the waters of the Marina is not permitted. Any person at the Marina unable to swim is advised to wear adequate life jackets at all times while at the Marina and persons under the age of 12 must be attended by a responsible adult at all times.

Television Aerials, Satellite Dishes and Wind Generators

Every effort will be made by the Owner to ensure that television aerials, satellite dishes and wind generators are erected in a manner that makes then as inconspicuous as their design allows for, while the Vessel is in the Marina.

Additional Regulations, Rules and British Waterways Byelaws

F.H.M reserves the right to amend these General Conditions and/or to introduce other Marina specific rules and regulations which are necessary for the efficient and effective running of the Marina. Such amendments and rules and regulations shall become effective on being displayed on F.H.M’s public notice board or in any other prominent place at F.H.M.

Any such rules and regulations introduced under this Clause 25 shall be deemed to form part of these General Conditions and F.H.M shall have the same rights against the Owner for a breach of these rules and regulations as for a breach of these General Conditions.

The Owner shall at all times abide by, and shall use his best endeavours to ensure that his crew, contractors and visitors abide by any applicable British Waterways, Environment Agency and any other local authority bye-laws. Any failure to comply is a criminal offence and may result in a fine. The Owner furthers undertakes to abide by any reasonable instructions issued by F.H.M. Without prejudice to the generality of Clause 36.4 F.H.M will not be liable to the Owner in the event of a temporary failure of any of the facilities and/or services at the Marina due to a reason not within F.H.M’s control, but agrees to use its reasonable endeavours to ensure that the affected services and/or facilities are repaired as soon as reasonably possible. This is also applicable to scheduled maintenance.

Animals on Board Vessels

The Owner may not keep any animals on board the Vessel while it is in the Marina, other than domesticated animals that have been notified to F.H.M as being present on board and approved as suitable to be in the Marina by F.H.M. The animals approved by F.H.M as suitable for the Marina must at all times remain under the proper control of the Owner while they are at the Marina and must never be allowed to cause a nuisance to any other users of the Marina F.H.M reserves the right to ask the Owner to remove any offending animals from the Marina, forthwith if these Rules are consistently breached by the Owner.

Any waste caused by animals in the Marina should be cleared up by the responsible person and disposed of in an appropriate manner.

Care of Marina Property

No alterations may be made to any part of the Marina property unless F.H.M's prior written consent.

General

In these General Conditions, unless the context otherwise requires, words importing any gender includes every gender and words importing the singular number includes the plural and vice versa.

The headings in these General Conditions are for convenience only and shall not affect its interpretation.

Unless otherwise agreed in writing, F.H.M’s failure to exercise or delay in exercising any right or remedy provided by these General Conditions does not constitute a waiver of that right or remedy of waiver of any other rights or remedies under these General Conditions.

F.H.M shall not be liable for any failure or delay in performing any of its obligations under these General Conditions caused by circumstances beyond its control.

If any parts of these General Conditions are held by a court of competent jurisdiction to be invalid or unenforceable, the validity and enforceability of the remainder of these General Conditions shall not be affected.

These General Conditions, the Schedule and any Marina specific rules and regulations introduced by F.H.M in accordance with Clause 25 above constitute the entire agreement and understanding between F.H.M and the Owner with respect t all matters referred to within it and shall supersede any previous agreement's) between the parties in relation to the matters referred to in these General Conditions.

No person other than a contracting party may enforce any provision of these General Conditions by virtue of the Contracts (Rights of Third Parties) Act 1999.

Any notice gave or invoice to be delivered in accordance with these Genera Condition shall be delivered by hand or sent by first class post. Any notice or invoice delivered by first class post shall be deemed to have been received 48 hours after it has been posted.

These General Conditions shall be governed and construed in accordance with the laws of England and Wales.