1. Definitions and interpretation
The definitions and rules of interpretation in this clause apply in these Conditions.
Agent: Swanley Bridge Marina Ltd, Swanley Brokerage (Company No 55 283 92) whose registered office is at Swanley Hall, Springe Lane, Swanley, Nantwich, Cheshire CW5 8NR.
Boat: The boat owned by the Seller(s) to be sold by the Agent pursuant to these Conditions including any items listed in the inventory.
Commencement Date: the date of signing the Listing Agreement.
Conditions: These terms and conditions.
Contract: The sales agency between the Agent and the Seller in relation to the Boat in accordance with the Listing Agreement and its Terms & Conditions.
Marina: The marina at the Agent’s registered office as detailed above.
Price: In relation to the Boat subject to the Listing Agreement, the price actually charged to the eventual Purchaser.
Agreement for Sale of a Second Hand boat – Conditional: The Agents Standard Contract between the Seller and Purchaser where the sale is subject to a Survey or other specified conditions.
Agreement for Sale of a Second Hand boat – Unconditional: The Agents Standard Contract between the Seller and Purchaser where there are no conditions.
2.1. The Seller hereby appoints the ‘Agent’ as its sole agent to sell the boat at the initial asking price detailed on the Listing Agreement or any subsequent final price negotiated between Seller and Purchaser by the Agent. The Agent hereby accepts the appointment in accordance with these Conditions.
2.2. The Seller shall not, during the continuance of the Contract, appoint any other person, firm or company as its Agent, or in any other capacity, including private sale, to sell the boat.
2.3. The seller shall permit the Agent access to the vessel at any time and shall make keys available for this purpose.
3. Agent’s obligations
The Agent undertakes and agrees at all times during the term of the Contract:
3.1. To market the sale of the boat on its website at www.swanleybrokerage.co.uk, at the marina and in selected trade publications.
3.2. To promptly forward to the Seller details of all offers received from potential buyers (being the price a potential buyer has offered to pay and not the amount the Seller may receive after any deductions under (Clause 7.1) at any time until termination of the Contract under the terms of Clause 8, or until any sale has been agreed for the boat within the agreed Contract period.
4. Sale of Boat
4.1.All physical items to be included as part of the boat in any sale shall be listed by the Seller and included on the Seller’s Inventory.
4.2.All defects known to the Seller shall be listed on the Seller’s Inventory.
4.3.Notwithstanding clause 4.1, all physical items on the boat will be considered part of the boat for the purpose of any sale, unless such items are specifically excluded in writing by the Seller on the Inventory.
4.4. The boat shall be stored and marketed for sale at the Marina either in the water or on hardstanding.
4.5. The Seller shall not be entitled to accompany the Agent on any viewings or conduct viewings during the term of the Contract without the Agent’s consent.
4.6. The Seller acknowledges that the boat is stored at the Marina at the Seller’s own risk and must be insured in accordance with clause 5.3.
4.7. The Seller accepts that the Agent shall qualify any particulars issued in relation to the boat with a disclaimer in the following or similar form: “in this transaction we are acting as Agent only. We are informed that this sale is/is not related to the seller’s business, trade or profession. Whilst every care has been taken in their preparation, the correctness of these particulars is not guaranteed. The particulars are intended only as a guide and they do not constitute a term of any contract. A prospective buyer is strongly advised to check the particulars and where appropriate to have the Vessel inspected by a qualified marine surveyor”.
5. Seller’s undertakings
The Vendor undertakes and agrees with the Agent during the term of the Contract:
5.1. The boat will remain the property and responsibility of the seller until the vessel has been paid for in full, the correct documents have been signed, funds have cleared and Swanley Brokerage have changed title.
5.2. The Seller is to be responsible for all winterising, cleaning, maintenance, berthing, storage, securing and security of the Vessel pending sale.
5.3. The Seller shall insure the vessel against usual marine perils and third pary risks and to ensure that the vessel remains licenced and insured until completion of a sale. Such insurance shall cover all viewings and sale arrangements, including slipping for a survey and any trials.
5.4. It is the responsibility of the Seller to provide proof of ownership, a set of keys, certificates and manuals to the Agent at the point of listing the vessel for sale.
5.5. The Seller will not use the boat or allow the boat to be used during the terms of the contract (unless by prior agreement).
5.6. Swanley Brokerage does not accept liability for boats offered for sale either on our premises or elsewhere and is not responsible for the conduct of customers under any circumstances.
5.7. To be responsible for complying with the requirements of HMRC that VAT is paid in relation to the original sale of the Boat within or importation to the EU including providing the necessary written evidence of the VAT Paid Status (VPS) and to indemnify the Company against all actions, claims, proceedings and costs suffered by the Company in connection with a breach by the Seller of this undertaking.
5.8. That the standard Swanley Bridge Marina “Agreement for the Sale and Purchase of a Second Hand Boat Conditional or Unconditional” will be used as the form of Contract between the Seller and the Purchaser and that Swanley Bridge Marina Ltd, Swanley Brokerage will act as Agent only, in the transaction.
Swanley Brokerage cannot offer or imply any warranty to the Purchaser under this agreement. The Seller is responsible for any claims for repairs or compensation from a dissatisfied Purchaser should any part of the boat prove unsatisfactory.
7. Commission and payments
7.1. The Seller shall pay to the Agent a commission of 6% plus VAT against the price for which the Agent concludes a sale contract on behalf of the Seller pursuant to and during the terms of the contract.
7.2.Notwithstanding clause 7.1 there shall be a minimum commission payment of £1000 + VAT payable by the Seller to the Agent.
7.3.After 90 days ,should the vessel be withdrawn from sale by the Seller an administration and marketing fee of £1000 + vat will be incurred. All other expenses, such as slipways, hull blacking, storage and mooring must be settled before the vessel is removed.
7.4.No storage, mooring, administration and marketing charges shall be incurred whilst the vessel is on brokerage for the period of 90 days from the date of the signed Listing Agreement . The Agreement commences from date of signature on the Agreement and thereafter the Agreement shall continue until terminated by either party in writing.
7.5. The commission detailed in clauses 7.1 and 7.2 above shall also be payable in the event that a sales contract for the boat is concluded in the following circumstances.
a) A sale contract for the boat is concluded during the term of the Contract and the buyer is not found by the Agent but by another agent or by another person, including the Seller.
b) A sale contract for the boat is concluded after the termination of the contract but to a buyer who was found during the term of the contract (whether or not by the Agent) or with whom the Agent had negotiations about the boat during the period in which case the commission payable shall be based on the asking price agreed with the Agent during the term of the contract.
7.6. The Seller agrees to appoint the Agent to hold the Deposit as stakeholder, and the balance of the purchase price as Agent for the Seller and paid into a separate client’s account. As soon as any sale has been satisfactorily completed, cleared funds received, bill of sale signed, the money (being the agreed sale price less any commission payable and any outstanding mortgage, finance contract or arrangement), will be paid to the Seller within 7 working days.
7.7. In the event of the boat being subject to any outstanding mortgage, finance contract or arrangement the Seller agrees that payment will be made in full by the Agent from the sales proceeds and the balance (if any) sent to the Seller in accordance with clause 7.6.
8. Compliance with laws and regulations
The Seller warrants to the Agent that:
a) He/she is the sole legal and beneficial seller of the boat and has good, marketable and unencumbered title to the boat and is
authorised to offer the boat for sale subject only to the concurrence of any mortgagee or financier whose details have been disclosed in accordance with clause 8 (d) below;
b) He/she has all necessary licences and proofs of ownership (including, but not limited to BSC, RCD surveys and equipment manuals) all of which are current and valid and copies of which have been provided to the Agent.
c) All particulars given by the Seller to the Agent, are true complete and accurate.
d) The boat is not subject to any outstanding mortgage, finance contract or arrangement unless disclosed to the Agent in the Declaration of ownership.
e) The particulars are correct and all known defects have been disclosed.
f) He/she has provided to the Agent copies of the insurance policy documents required under clause 5.4.
g) Should there be any issues with the vessel that have not been disclosed by the Seller within this agreement that require rectification in order to effect a sale, then the cost of this rectification work shall be borne by the Seller. No work will be carried out without the Seller’s prior knowledge and consent.
8.1. The Seller agrees to indemnify the Agent for and against any liability, costs or expenses which may be incurred by the Agent as a result of the breach of any provisions of the Contract by the Seller which shall include any costs incurred in the event of an ownership dispute during or after the sale.
9. Duration and termination
9.1. The contract shall come into effect on the commencement Date and subject to clause 9.2, shall continue indefinitely thereafter until a sale contract for the boat is concluded between the Seller and a Purchaser or until it is terminated by either party.
9.2. The Agent may terminate the Contract without liability to the Agent immediately, by giving written notice if:
a) The Seller commits a breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach with a period of 7 days after being notified in writing to do so.
b) The Agreement shall terminate automatically if either party becomes insolvent or undergoes any formal process or compounds with his/its creditors.
10. Effects of termination
10.1 Termination of the contract, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
10.2 On termination of the contract for any reason:
a) the Agent shall cease to market or advertise the boat for sale; and
b) the Seller shall immediately pay all monies due to the Agent including but not limited to any commission, slipway, storage and charges in relation to work carried out.
10.3 In the event of the termination of the Contract or the removal by the Seller of the boat from the marina where the boat has not been sold, after 90 days the Agent shall be entitled to charge a storage/marketing fee as stated in clause 7.3.