Terms and Conditions of Brokerage
1. Deposit and payment
On the signing of this agreement a deposit of 10% of the purchase price is to be paid to the Broker as stakeholders. The balance of purchase price will be payable in accordance with clause 6 hereof.
[NOTE: Where payment is made by cheque, draft, letter of credit or other instrument, the terms of this agreement shall not be deemed to have been fulfilled until such payment is cleared into the payee's account].
If the Vendor is selling in the course of trade or business the Broker shall notify the Purchaser in writing to that effect in which event the usual statutory warranties shall apply. If the Vendor is not selling in the course of trade or business and the Purchaser being at liberty to inspect the vessel and satisfy himself as to its condition specification and suitability all warranties express or implied are hereby excluded to the extent permitted by law and the Vessel and its equipment shall be taken as is with all faults and assets including those of description without allowance or abatement whatsoever.
3. Inspection and/or survey
If an offer is made and accepted "subject to survey" in accordance with the provisions hereof the Purchaser may at a venue to be agreed and at his own cost haul out or place ashore and/or open up the Vessel and its machinery for the purpose of inspection and/or survey which, together with any written report shall be completed within 14 days of acceptance of the Purchaser's offer. In the event that any inspection requires more than superficial non-destructive dismantling and limited removal of anti-fouling the consent of the Vendor shall be obtained in writing before commencement of such work.
Within seven days after completion of such inspection and or/survey if any material defect in the vessel or its equipment other than as disclosed to the Purchaser in writing prior to acceptance of the Purchaser's offer shall have been found or if any material deficiency shall have been found in the inventory if any the Purchaser may give notice to the Broker or Vendor specifying such defect or deficiency and including a copy of the relevant extracts of the surveyor's report either:
(a) Notifying his rejection of the Vessel or
(b) Requiring the Vendor within a reasonable period either to make good the same or make a sufficient reduction in the purchase price to enable the Purchaser to make good the same. All agreed items of work shall be completed without undue delay in all the circumstances and shall be carried out so as to satisfy the expressly specified requirements of the Purchaser's surveyor in respect only of material defects mentioned in his report and notified to the Broker or Vendor.
In the event that the Purchaser shall serve any such notice as specified above and the Vendor shall not within 14 days after service of the notice agreed to make good without delay such defects or deficiencies as may be specified therein or the parties shall not have agreed within 14 days after service of the notice upon the amount by which the purchase price is to be reduced then the agreement shall be rescinded and any deposit paid shall be refunded in accordance with clause 7 hereof.
The Vessel shall be deemed to have been accepted by the Purchaser in any of the following events:
(a) Upon the expiry of seven days from the date of acceptance of the Purchaser's offer or such extended period as may be agreed between the parties provided that no inspection or survey has commenced.
(b) Seven days after completion of survey provided that the Purchaser has not served notice under clause 4 hereof.
(c) Upon notification in writing by the Vendor or the Broker to the Purchaser of completion of remedial work specified in any notice under clause 4 hereof.
(d) Upon a mutual agreement on a reduction in the purchase price in accordance with clause 4 hereof.
Upon acceptance of the Vessel by the Purchaser any deposit shall be treated as part payment of the purchase price and within seven days of acceptance:
(a) The Vendor shall:
(i) Provide the Broker with the Certificate of Registry if any correct and updated together with any other documents appertaining to the Vessel or deducing title and shall execute a Bill of Sale in the prescribed form in favour of the Purchaser of his nominee showing the Vessel to be free from encumbrances.
(ii)Deliver to the Brokers a VAT invoice if applicable and any necessary document or authority enabling the Purchaser to take possession of the Vessel.
(iii)By delivery of the documents herein referred to be deemed to covenant that he has authority to transfer the property in the Vessel and that the same is transferred free of liens or encumbrances except such as are the responsibility of the Purchaser in accordance with clauses 3 and 7 hereof or as may be agreed.
(b) The Purchaser shall tender the balance of the purchase price to the Broker who on receipt thereof shall hold the documents herein referred to the order of the Purchaser.
In the event of rescission by the Purchaser under these terms and conditions he shall at his own expense reinstate and restore the Vessel to the condition and position in which he found it and shall pay all yard and surveyor's charges in respect of this work. The Vendor shall thereupon return or procure the return of the deposit to the Purchaser without deduction and without interest save that he or the Broker shall be entitled to retain such part thereof as shall be necessary to defray any yard or surveyor's charges not paid by the Purchaser. Neither party shall thereafter have any claim against the other under these terms and conditions. In particular, and without prejudice to the generality of the foregoing the Purchaser shall have no further right whatever in respect of the Vessel or of any failure by the Broker or the Vendor to supply it or any entitlement to the supply of a replacement Vessel.
Until the vessel has been accepted or shall be deemed to have been accepted by the Purchaser she shall be at the risk of the Vendor who shall make good all damage sustained by her before the date of completion. If the Vessel be lost or become a constructive total loss before such acceptance this agreement shall be null and void except that the Purchaser will be liable for the cost of all work authorised by him under clauses 3 and 7 and undertaken before such loss took place and the deposit shall be returned to the Purchaser without interest but less any deduction made under clauses 3 and 7 and otherwise without deduction and the Purchaser shall have no claim against the Vendor for damages or otherwise. After acceptance the vessel shall in all respects be at the risk of the Purchaser notwithstanding that the ownership of an unregistered vessel shall not pass to the Purchaser until payment of the full purchase price in accordance with clause 6 hereof even though the Purchaser has insured his risks under the provisions of the clause. The Vendor should continue his own insurance until such time as he receives the proceeds of the sale from the Broker.
(a) Should the Purchaser make default in payment of the balance of the purchase price as herein before stipulated the Vendor shall be at liberty to give notice in writing to the Purchaser requiring him to complete the purchase within seven days of service of the notice. If the Purchaser shall fail to comply with the said notice then the Vendor shall be at liberty to re-sell the Vessel either by Public Auction or by Private Treaty and any deposit paid shall be forfeit to the Vendor without prejudice to his right to claim from the Purchaser the amount of any loss together with all his reasonable costs and expenses (due allowance being made for the forfeit of deposit) or to the Vendor's right to enforce the contract upon the Purchaser. On expiry of the said notice the Vessel shall be at the Vendor's risk.
(b) If the Vendor shall default in discharge of his obligations hereunder the Purchaser shall without prejudice to any other right he may have hereunder be entitled to the return of his deposit. Unless such default by the Vendor shall have arisen from events over which the Vendor has no control the Vendor shall pay interest upon the amount of the deposit for the period during which he has held it at the rate of 4% per annum above finance house base rate together with compensation for any loss which the purchaser may have sustained as a result of the Vendor's default.