The conditions set out in this Contract of Guarantee along with the Conditions of Guarantee (Attachment 1), which attachment is incorporated herein by reference, govern the Guarantee given by the Guarantor to the Clients for the Beneficiary in respect of the Coatings System on the Yacht (as defined below).
|Applicator||means the professional individual or company as named in the ‘Table of Information’|
|Beneficiary||means the applicator for the first twelve (12) Months|
|Clients||means the Yard, Owner and Applicator.|
|Coatings||means all paints and fillers manufactured by the Guarantor which are set out in the Coatings Specification.|
|Coatings Specification||means the approved systems as published in AkzoNobel published technical literature or provided via a technical specification from the guarantor.|
|Coatings System||means all the combined Paint Systems for the Yacht as set out in the Coatings Specification|
|Commencement Date||means the date the Yacht leaves the controlled environment of the construction hall or application enclosure and first becomes exposed to the natural atmospheric elements. This date shall be no later than four (4) months after the date of completion of the application of the Coatings System.|
|Defective Areas||as defined in clause 2 of the Conditions of Guarantee (Attachment 1).|
|Guarantee||means this Contract of Guarantee together with Conditions of Guarantee (Attachment 1) as set out above and attached to this document.|
|Guarantee Period||Eighteen (18) months from the Commencement Date for a new fully applied Coatings System
or Eighteen (18) months from the Commencement Date for the maintenance, repaints, refits or repairs of an existing Coatings System.
|Guaranteed Area||means the following: 1. the exterior of the hull above the waterline; and/or 2. the exterior of the superstructure of the Yacht; and/or 3. the interior area.|
|Guarantor||International Paint Limited. Registered Company No.: 63604 Registered Office: The AkzoNobel Building Wexham Road, Slough, United Kingdom, SL2 5DS (Manufacturer of the brands Awlgrip® and International®).|
|Owner||means the owner or owner’s representative of the coated yacht as outlined in the ‘Table of Information’|
|Paint System||means the specific Coatings specified for a Guaranteed Area of the Yacht.|
|Parties||means the Guarantor and the Clients.|
|Pre-Project Meeting||means a meeting of all Parties to define: 1. Project Timeline; 2. Coatings Specification; 3. Communication Protocols; 4. Acceptance Criteria; 5. Inspection & Exception Reporting; and 6. Coatings Manufacturer Support.|
|Total Limit of Liability||as defined in Clause 6(b) of the Conditions of Guarantee (Attachment 1).|
|Yacht||means the name of the vessel which has been coated as outlined in the ‘Table of Information’|
|Yard||means the location where the professional application has been undertaken as outlined in the ‘Table of Information’|
All capitalized terms not defined in these Conditions of Guarantee shall have the meaning provided in the Contract of Guarantee of which this document is an Attachment.
1. The Guarantor hereby agrees, subject to these Conditions of Guarantee set out herein, to guarantee to the Beneficiary the performance of the Coatings System on the Guaranteed Area’s when professionally applied to the Yacht as per the Guarantor provided Coatings Specification.
a. The commencement date of this Guarantee shall be the date the Yacht leaves the controlled environment of the construction hall or application enclosure and first becomes exposed to the natural atmospheric elements. This date shall be no later than 4 months after the date of completion of the Coatings System.
b. In the case of respray or maintenance of an existing Yacht the following shall apply: any faults and / or defects caused by or related to already present coatings and coatings which have not been removed to the bare substrate are not the responsibility of the Guarantor and are outside the scope of this Guarantee
c. Any repairs carried out under this Guarantee do not extend the duration of this Guarantee.
d. The Yard/Applicator/Vessel Owner & Owners Agents (the clients) agree that the Beneficiary has the sole right to claim under this Guarantee and they agree to cooperate fully with the Beneficiary and Guarantor to fulfil all their obligations as specified in this Guarantee.
e. This Guarantee is only valid when the below criteria are met:
I. New build vessels less than 30 meters in overall length and all vesselrepaints/refits/repairs/maintenance:
II. New Build Vessels 30 to 50 meters in overall length
III. New Build Vessels over 50 meters in overall length
2. The Guarantor shall be liable only for “Defective Areas” which throughout this Guarantee shall mean an aggregated surface area exceeding two percent (2%) of the total surface of the Guaranteed Area (excluding those areas and defects referred to in Clause 4) where nondestructive testing shows that:
a. On visual inspection spontaneous detachment of the coatings comprised in the Coatings System from each other, or from the substrate, has occurred; or
b. In the case of a steel substrate, on visual inspection that the steel has corroded to a severity greater than Ri.2 as defined in ISO 4628-3:2003; or
c. The Paint System has on visual inspection blistered, cracked and/or peeled above the size 2 quantity (density) 2, as defined in ISO 4628/2-4-5; or
d. The gloss level of the Paint System applied in accordance with the relevant Technical Data Sheet on the hull exterior above the waterline, or the superstructure exterior, is less than 80% in the first 12 months, or 60% in months 12 to 18, of the original gloss level, measured at an angle of 60 degrees in accordance with the measurement of specular gloss of non-metallic paint films as defined in ISO 2813:2014;
e. The colour level of the Paint System on the hull exterior above the waterline or the superstructure exterior has changed by more than:
i. Delta E5 (De 5) for all colors up to 12 Months,
ii. Delta E7.5 for all colors up to 18 Months
when measured in accordance with ISO 18314-1:2015
f. Clauses 2(a), 2(b) and 2(c) shall only apply to new build yachts and therefore shall not apply to maintenance, repaints or refits of an existing yachts. Such applications shall only be covered by clauses 2(d) and (e)
3. The Guarantor shall not be liable unless:
a. The Coatings System has been applied to the Yacht strictly in accordance with the Coatings
Specification as set out in section 1 e above ;
b. Any surfaces and coatings damaged during work on the Yacht have been repaired to the
Guarantor’s Coatings Specification;
c. All normal maintenance procedures (including without limitation all cleaning and washing procedures) are in line with the Guarantor’s recommendations and have been duly carried out;
d. The defects are due to inherent defect in the Coatings; and
e. The procedures as set out section 1 e above must be adhered to and completed in full.
4. The Guarantor shall not be liable for:
a. Damage to the Coatings System arising from external causes outside the control of the Guarantor including (but not limited to) welding or other heating, pollution, mechanical damage, electrical or electrolytic damage, incorrect cleaning or incorrect use, neglect, fire, explosion, radiation or other accident, acts of God, wars (whether declared or not), riot, civil commotion, vandalism or other malicious damage, industrial action, adverse weather conditions (such as, for example, sandstorms) and the like.
b. Coatings on surface areas which because of their physical shape, characteristics or configuration present special difficulties in effecting specified preparation and coating, including (but not limited to) ladders, handrails and all small area equipment and attachments, and the like.
c. Deterioration of the substrate caused by electro-chemical action arising from the presence of metals which are cathodic to the metal of those areas of the Yacht covered by this Guarantee.
d. Deterioration of any part of the Coatings System caused by work carried out on the Yacht including (but not limited to) polishing or any other form of surface treatment.
e. Any delay or failure by the Guarantor to carry out its obligations under this Guarantee arising out of circumstances beyond their control including (but not limited to) riot, civil commotion, industrial action and the like.
f. Cracks or delamination in the Coatings System caused by substrate flexing or movement. It is the Yard’s responsibility to ensure that the construction and design is appropriate for the chosen Coating System, specifically for fairing with the chosen epoxy filler system, without causing it to crack or to delaminate.
g. Antifouling. As the performance of Antifouling is influenced by factors beyond our control, the Antifouling performance is specifically excluded from this Guarantee.
h. Wood. As wood is a natural material and the performance of coatings or varnishes will depend for a large part on the quality of the wood and its construction, these parts are specifically excluded from this Guarantee.
5. In the event of a failure of the Coatings System:
a. The Beneficiary shall notify the Guarantor of any claim by registered mail giving full details of the nature of the defect, the size and area, and the circumstances in which it was discovered including the date of detection, the location of the Yacht and whether it is out of water or not. Unless this written notice is received by the Guarantor within 30 days of the date of detection of the defect all claims to which such notice relates shall automatically be excluded and time barred thereafter.
b. If the Guarantor wishes to inspect the area of the Yacht in respect of which a claim is made, the Yacht shall be made available for such inspection as soon as reasonably practicable and in any event within 60 days of receiving such request at the location at which the Yacht was originally coated or such other location as may be mutually agreed between the parties. The Yacht will be made available for the Guarantor’s inspection within such period and prior to any repair work being carried out failing which means the Guarantor shall have no liability to the Beneficiary whether under this Guarantee or otherwise.
c. The Beneficiary shall, in the event of a claim, make available to the Guarantor records showing the environment to which all areas of the Yacht covered by this Guarantee have been exposed since initial application of the Coatings System such as but not limited to; surface treating, washing/cleaning procedures used and any other data needed to reconstruct the chronological service history of the Yacht.
d. Provided always that the Guarantor’s liability under this Guarantee (including any costs in 5e) for new build vessels shall not exceed four times the invoiced value of the Coatings in the affected areas, and, for Maintenance & Repair shall not exceed five times the invoiced value of the Coatings deemed faulty, the Guarantor will, subject to these Conditions of Guarantee, supply the Coatings to effect the repair of the affected areas and shall cover the reasonable costs of application of such Coatings as follows:
e. The Guarantor shall, subject to these Conditions of Guarantee, reimburse the Beneficiary for the reasonable costs of scaffolding and tenting to the extent that they are directly attributable to the repair of the Defective Areas against evidence of such costs actually incurred but subject to a limit equal to the costs of the reapplication of coating the Defective Area.
f. The Guarantor’s entire aggregate liability under this Guarantee shall not in any event exceed new build vessels shall not exceed four times the invoiced value of the products in the affected areas and for M & R shall not exceed five times the invoiced value of the products in the affected areas.
g. It shall be the Beneficiary’s responsibility when making any claim under this Guarantee to show that Defective Areas (a) were not caused by failure to comply with the conditions set out in Clause 3 and (b) do not fall within any of the exclusions set out in Clause 4.
h. No acceptance of any claim by the Guarantor shall be effective unless it is explicitly communicated to the Beneficiary in writing by the Guarantor.
i. Repairs under this Guarantee may only be carried out after consultation with the Guarantor who reserves the right to approve or negotiate the contracts for such repairs which shall be carried out as soon as practicable but the Guarantor does not assume liability for delay in carrying out or completion thereof. For the avoidance of doubt, the Beneficiary agrees that the Guarantor shall not have any responsibility and/or liability for the negotiation and/or management of any contract for such repairs and shall not be a party to any such contract.
6. The Guarantor’s entire liability for any claim or claims under this Guarantee is as set out in Clauses 5d, 5e and 5f. In no circumstances whatsoever shall the Guarantor be liable for any other direct or indirect losses including (without limitation) demurrage, slipping costs, harbour costs, harbor dues, boatyard services and the like associated with coating repair works, loss of time, monies due to the Beneficiary’s employees or to operators or charterers, loss of profits, lost contracts, lost opportunity to contract and any such similar costs and all claims by third parties against the Beneficiary.
7. The Beneficiary agrees that it will at all times from the Commencement Date hold harmless and indemnify the Guarantor against all third party claims for loss, damage or expenses including legal expenses brought against the Guarantor of whatsoever nature and howsoever arising caused by or related to the Coatings System, its application or repair under this Guarantee. This indemnity shall apply to all third party claims except claims relating to death or personal injury arising out of the Guarantor’s negligence in the performance of its obligations under this Guarantee.
a. The Beneficiary acknowledges that any associated or affiliated company of the Guarantor (“Affiliate”) has no liability whatsoever with respect to the Yacht, and the Beneficiary releases such Affiliates from any and all such liability. The liability of the Guarantor under this Guarantee is (subject to Clause 8b) in substitution for all other liability of the Guarantor and/or its Affiliates in connection with or relating to coatings products and/or advice and assistance supplied in respect of the Yacht whether in contract, tort or otherwise.
b. This Guarantee does not exclude or restrict liability for death or personal injury caused by the negligence of the Guarantor and/or its Affiliates.
9. Any alteration or modification of this Guarantee (including any alteration or modification to any of the Attachments) must be in writing and signed by authorised representatives of the Guarantor and the Clients.
10. If and in so far as these Conditions of Guarantee conflict with the terms contained the Guarantors Conditions of Sale applicable at time of product purchase of the Coatings, then these Conditions of Guarantee will prevail. To the extent that said Conditions of Sale and Guarantor provided Coatings Specification do not conflict from these Conditions of Guarantee then they will continue to apply.
11. The Guarantors Conditions of Sale applicable at time of product purchase come into force immediately upon the sale of the Coatings by the Guarantor.
12. This Guarantee and the Attachments, if any, attached hereto and forming a part hereof, sets out the entire agreement and understanding and sets forth all the terms, provisions, covenants, conditions, promises, agreements and understandings between the Guarantor and the Beneficiary (Clients) relating to the subject matter of this Guarantee. There are no warranties, representations, covenants, promises, agreements, conditions or understandings, either oral or written, between them other than set forth herein. No alteration, amendment, change or addition to this Guarantee shall be binding upon Parties unless made in writing and signed by authorized representatives for each of the Parties.
13. The Parties shall agree to use the dispute resolution mechanism set out in clauses 13. (a) and 13 (b) below in the event that any claim or dispute arises under or in connection with this Guarantee;
a. the Parties will attempt to settle such claim or dispute by good faith negotiations; and b. if any claim or dispute cannot be settled by negotiation within thirty (30) days after a written offer has been given to the other Parties to negotiate a settlement to such claim or dispute, the Parties shall, before resorting to court proceedings, attempt to resolve the claim or dispute by mediation in accordance with the Model Mediation Procedure of the Centre for Dispute Resolution (CEDR) in London.
14. The Guarantee may not be assigned by the Clients without the Guarantor’s prior written consent.
15. This Guarantee shall be subject to English Law.
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