General Terms & Conditions - Valeriy Berezovsky - Naval Architect & Marine Designer

 The natural person who has made it his business to offer the provision and performance of Work Activities (defined below).
 The person, including the natural person and/or his legal successor, the commercial partnership, professional partnership or legal entity that negotiates or enters into a contract with the Designer for the provision of services or work activities offered by said Designer.
 The contract whereby the Designer binds himself to the Client in respect of performing Work Activities (defined below) and/or the terms of Rights to Build (defined below) and/or the Contract and the General Terms and Conditions applicable to them. The Contract only comes into effect in writing, for example per written contract, per email or by signed quotation.
 All work that the Designer performs for the Client in connection with the Contract. The Designer is authorized to engage third parties for the purpose of carrying out Work Activities.
 The order to perform Work Activities as specified in the Contract and the applicable General Terms and Conditions.
 Sailing or motor yacht, recreational or commercial watercraft, or other floating or sailing object, or one or more parts thereof, designed by the Designer in connection with the Contract.
 A Boat designed by the Designer. The Design can consist of a Concept Design and a Technical Design (defined below). These designs are created in the Concept Design Phase and the Technical Design Phase, respectively.
 A Design that is based on an existing Design but deviates on essential points.
 The results of the Calculations are used in the Design. These Calculations are not a separate part of the documentation delivered to the Client and are not submitted.
 Drawings of the Boat with limited amount of details in order to provide a general view of the nature and the general outline of the Boat. These drawings are sufficiently detailed for a potential technical inspection. Depending on the phase of the Work Activities, this may constitute Concept Design Drawings and Technical Design Drawings (defined below).
 A schematic plan of the Boat that only provides general insight into the shape, lines, functions and sizes.
The purpose of Concept Design is to define the appearance of the Boat and prove that the Boat Design is feasible.
Concept Design may include, as far as applicable and agreed:
 b.    A general arrangement plan in which the layout and design are laid down. This general arrangement plan is based on preliminary design parameters, provisional lines plan and preliminary calculations with regard to functionality, load capacity, weight, rigging, stability, speed and engine power;
c.      Information with respect to the overall design of the structure for the provisional calculation of weight and center of gravity.
d.     A concise specification, which is sufficiently detailed to enable a professional yard to make cost estimation.
   Design Drawings produced during the Concept Design phase. These drawings describe the Concept Design.
 The final description of the Boat by means of Technical Design Drawings and other descriptive documents. These may include, as far as applicable and agreed:
 f.      The specifications;
g.     The lines plan
h.     The construction plan;
i.      The sails plan;
j.      The deck plan;
k.     The layout plan with the main joinery measurements;
l.      The engine room arrangement;
m.    Drawings of the keel and  rudder;
n.     Diagrams of important systems;
o.     Other design drawings required for building the Boat;
p.     Calculations with regard to weight, rigging, stability and performance;
 The Technical Design serves as a basis for producing the Production Drawings.
 Design Drawings made during the Technical Design Phase. These drawings describe the Technical Design.
 Detailed drawings for use in the production process. These drawings are also called Working Drawings.
The Production Drawings are not part of the Design.
 Another name for Production Drawings.
 Drawings of the Boat as it is finally built.
As-built Drawings are not part of the Design.
 The shipyard, metal construction company, woodworking company, etc. that is building the Boat by order of the Client.
 One or more detailed tests and Sea Trials in the context of the Client’s acceptance of that which is built by the Builder.
 Monitoring the building and representing the client in all areas related to the construction process.
 The total price of the constructed Boat as it leaves the shipyard, exclusive of VAT. The Fee of the Designer is not included in this price.
 The agreement between the Builder and the Client relating to the building of the Boat. The Designer is not a party to this Contract.
 The right of use the design and related documents for the construction of one or more Boats. Each Right to Build states at least:
 b.     If the right is exclusive or whether third parties may use the Design;
c.     The period during which the Design may be used;
d.     The price for the right to use.
 The building of more than one Boat using the same design.
 A Right to build an agreed number of Boats in a given period.
 The amount to be paid to the Designer in connection with the execution of the Contract.
 Every day that is not a Saturday and Sunday.
   In the relationship with the Client, the Designer acts as a confidant, providing advice about technical and aesthetic issues, protecting the interests of the Client to the best of his knowledge and abilities, and realizes these interest to his best endeavours.
 The Designer acts as a representative of the Client in the execution of the Contract. Within the context of the Contract, this authorization is unrestricted and unconditional until the time that the Contract ends. The authorization shall in any case reasonably allow the Designer to carry out all transactions within the context of the Contract at his own discretion.
       b.     Making a Technical Design;
c.     Making a Variation of an existing Design;
d.     Preparation a Production Drawings;
e.     Preparation As-Built Drawings;
f.      Providing Supervision of the Construction;
g.     Providing advice;
h.     Providing assistance and support;
i.      Providing expertise;
j.      Other services.
 Each Proposal is provided entirely without obligation. This also applies if a term for acceptance is mentioned.
 A Proposal made without obligation may be withdrawn:
 b.     The client can withdraw his acceptance of the Proposal within three business days of the acceptance without any liabilities.
 The Order shall be deemed as a final and come into effect when:
 b.     The Proposal has been provided by the Designer and the Client has confirmed that the acceptance is irrevocable and has requested the Work Activities to begin.
 An agreed Delivery Time is only offered as an indication and is not a deadline unless this is specifically agreed.
 If amendments are agreed upon during the execution of the Contract, the originally agreed Delivery Time will automatically expire.
 In the event that the Designer expects the Delivery Time to be exceeded, he needs to notify the Client and state the reasons.
 The Designer shall never be in default of a non-strict deadline. The Designer and Client may agree in writing that certain deadlines are strict deadlines. The Designer shall then not be in default of an agreed deadline unless an agreed deadline is exceeded by more than 20% due to causes entirely attributable to the Designer and the legal conditions for default have been fully satisfied.
     The rights mentioned in this article are personal rights and shall only be granted to the Client. The right to use the Design is not transferable to third parties.
 When a Technical Design is delivered by the Designer and the agreed price is paid by the Client, the Client is then automatically entitled to use the Design Drawings for a single Boat to be built in accordance with the Design.
 The parties may agree that the Client has the right to use the Design for the construction of more than one Boat.
 Client only acquires the right to use the Design for the construction of more than one Boat, after the parties have expressly agreed upon this in writing and the Client has fulfilled its obligations to the Designer.
 After the completion of a Boat on the basis of an obtained Right to Build a Series, if the Client wishes to proceed with the construction of another Boat in the same series, he has the right to do so from the moment he has fully complied with all his obligations to the Designer.
 The parties may agree that the Client has the sole right to use the Design for the construction of one or more Boats, thereby excluding third parties.
 If within one year of obtaining the exclusive Right to Build, the construction of a Boat is interrupted or halted, the Designer may request in writing that the Client commences or continues construction. If the Client does not fulfil this written request within one year, all his rights to use the Design to build of that type of Boat will lapse.
 The Right to Build may only be used to build of a Boat that conforms to the Design Drawings and other documents made available by the Designer. The Client and/or Builder are not permitted to make Amendments to the Design or to depart from the Design in the construction of the Boat.
     The Designer is responsible for ensuring that his Design complies with reasonable requirements of quality and functionality in connection with the purpose for which the Client wishes to use the Boat.
 The Designer will also take into account additional requirements that the Client have submitted to the Designer in the period between entering into the Contract and the completion of the Concept Design, including the specifications.
 If the Designer is of the opinion that the additional requirements cannot be realized in the Design, he must inform the client in a timely manner.
 The Designer is responsible for the correct execution of the calculations and drawings for the Design. The Designer is not responsible for the correct execution of the Design by the yard.
 The aesthetic appreciation of the Design is no grounds for assessing whether the Designer fulfilled his obligations towards the Client.
   The Designer is authorized to deliver a Design that is different from what was agreed in the event that the changes are required in order to comply with applicable regulations or, in the case the changes are minimal, when he believes that these represent an improvement.
 If the Contract includes Supervision of the Construction then the Designer has the right, without any further approval from the Client being required, to advise the Builder about deviations from the Design.
 The right to recommend a deviation from the Design referred to in the preceding paragraph shall be limited to changes in construction requirements that in the opinion of the Designer are necessary in connection with safety and/or suitability.
   The Designer who is ordered to carry out the Supervision of the Construction is authorized  to assess whether the work has progressed sufficiently, considering the situation on the day of inspection, for the Builder to be entitled to receive payment of (a part of) the Building Cost in accordance with the provisions of the Construction Contract.
   The Designer will always retain ownership of all the originals and copies of sketches, drawings, calculations, estimates, specifications, budget estimates, reports, computer files, image media and any other media for holding information, as well as 3D models created for and by the Designer in the context of the Order regardless of whether they were made on behalf of the Client or third parties.
 Intellectual property rights as provided for in the Copyright Law in relation to the Design, Production Drawings, sketches, photographs and other images of the Design or part thereof, the models and construction moulds, as well as all models, computer files, image media, or other media for holding information that form a part of the Design remain the exclusive property of the Designer.
 Unless otherwise agreed, the Designer is free to use the Design or parts thereof on behalf of other clients. This is understood to mean in any case the Intellectual Property rights to use the Design and/or transfer or change the Design at its discretion for the construction of one or more Boats.
 The Designer has the right to make images of the exterior and interior of the Boat. The Designer has the right to modify, reproduce, and publish these images as well as the general plan for promotional purposes in the broadest sense of the word.
 The Designer has the right to place his name, logo or brand name on the physical result of his Design, in the understanding that this is done in all reasonableness, without damaging the appearance or the use of the Boat.
 Without affecting to any other rights concerning infringement of copyright, the Client is obligated to remove the name, the logo or brand name of the Designer at the first request of the Designer.
   The Designer is only legally liable for damage suffered by the Client arising out of an attributable breach of contract by the Designer in the fulfillment of his obligations or due to any wrong doing or an illegal act by the Designer.
           The Designer shall not be liable for errors related to components of the Boat not designed by him or not designed or constructed under his supervision. Nor is he liable if the legal liability in the contract documents or the contractor's contract or delivery is transferred to the Builder.
 The Designer only liable for the technical fit of components in the Boat that are designed and manufactured by third parties in so far as the Designer has explicitly indicated that these components are part of the Design.
 The Designer is in no way responsible for the operation, performance or results, etc. of any fitted components from third parties. Nor is the Designer responsible for the operation, performance or results, etc. of any fitted components from third parties in conjunction with the Boat.
 The price estimates of the Designer are always calculated to the best of his ability, but are provided without obligation. The Designer is not liable if it appears that the Boat or any part of it cannot be realized within the estimated price.
 In no event shall the Designer be liable if the Design complies with the following conditions:
 b.     It complies with the European Recreational Craft Directive and/or to the regulations of a recognized Classification Society for the relevant type of Boat.
       b.     Any claims on the Designer, except for those recognized by him in writing, lapse twelve months after the date on which they were made.
   The Client is not allowed to make any changes to the Design and Production Drawings without prior permission of the Designer.
 The Client is obligated to maintain absolute confidentiality of all designs, calculations, computer files, Production Drawings, Design Drawings, sketches, models, and all other representations of the design, or parts thereof, that he has in his possession or of which he has knowledge that the Designer has supplied to him in connection with the Order.
     The Client should examine the Boat upon delivery after the Sea Trial. The Client must check that the Boat complies with his Order.
     The Client has the right to use the general plan and photographs of the designed Boat for advertising and publicity purposes. Other drawings of the Design may only be published by the Client with written permission from the Designer.
   b.     State the Copyright of the Designer;
c.     Send the Designer a copy of the publications.
 If the Contract is terminated by the Client for any other reason than the default of the Designer in respect of its obligations to the Client, the Client must fulfill the following conditions:
 b.     The Client has paid the Fee for which the Designer would be entitled to if he would complete the part of the Contract that he was working on at that time.
 In the event the Contract is terminated, all provisions relating to Confidentiality and Intellectual Property rights shall be fully maintained.
     b.     Royalties for the use of the Design;
c.     Reimbursement for expenses incurred by the Designer.
     The Design Fee can be determined in the following ways:
 b.     Based upon the number of Hours Worked;
c.     Based upon a percentage of the total Building Cost;
d.     Based upon any other criterion agreed upon by both parties.
 The parties may agree on a Fixed Price in the event that it is easy to estimate the required Work Activities in advance.
 If the parties have agreed that the Fee will be calculated in proportion to the number of Hours Worked, the parties shall adopt a standard Hourly Rate.
 If the parties have agreed that the Fee will be calculated depending on the Building Cost, the different installment amounts will be calculated depending on the Building Cost previously estimated by the Designer.
 The Building Cost is understood to mean the total Building Cost as charged by the Builder to the Client for the construction of the Boat, including the supply of goods and services by any third parties.
   In so far as the Order has been extended, this is due to amendments or additional work, the Designer will charge for the associated hours separately at the time that those Work Activities have been completed or will clearly identify this in the final invoice.
 The Fee payable shall be charged in installments according to the agreements that the parties came to upon entering into the Contract. In any case, the Designer shall be entitled to payment of installments after completion of:
 b.     Technical Design;
c.     Production Drawings;
d.     As-built Drawings;
e.     For each designed Variation.
   If an installment is not paid by the Client, the Designer has the right to immediately suspend all Work Activities until the time when the Client has fulfilled all obligations towards him.
   In the event that the Work Activities belong to the Design of a Boat, the Royalties associated with the construction of the first Boat to that Design will be included in the Design Fee.
 When using the Design for the construction of more than one Boat, the Royalties are payable for each Boat that is to be built.
 If the parties have agreed that the Client may use an existing design for the construction of one or more Boats, the Client must pay the Royalties to the Designer in accordance with the agreements made by the parties.
 Client obtains the user rights to the Design (and associated Design Drawings and Production Drawings) from the day following the day on which the Royalties are received by the Designer and all other obligations arising from the Contract for the Designer are fulfilled.
   All expenses incurred in connection with the execution of the Contract by the Designer will be passed on to the Client.
 Expenses passed on is understood to mean but is not limited to: the expenses associated with hiring a third party, the use of materials, travel and accommodation, translation, reproduction, testing, certification, model tests, inspections, tests, office expenses, legal assistance in association with disputes with third parties, etc.
   Unless otherwise agreed, the term of payment is ten days after receipt of the invoice. Invoices can be sent by post or email. Parties will therefore need to agree which post address or email address the Designer should use.
 When the term of payment is exceeded the Client is always immediately in default and is then liable until full payment is made to the Designer of the full amount.
   These General Terms and Conditions apply to all contracts and other legal relations between the Designer and the Client. The provisions of these General Terms & Conditions can be waived by the parties. Any deviations shall apply only in so far as they are agreed in writing.
 The Client accepts the application of these General Terms and Conditions. The applicability of any other general conditions than these is expressly excluded.
 In the event that other general conditions also apply to the Contract, leading to contradictory stipulations, the relevant provisions of these General Terms and Condition will take precedence over those of the other.
   Ukrainian law should be applied to all agreements between the Client and the Designer.
 All disputes arising from or related to the Contract shall be settled by the competent court or through arbitration.
 The court in the district where the Designer is located and/or office is registered shall have jurisdiction over the settlement of a dispute.
   The Designer is free to modify these General Terms & Conditions annually. The amended version of these Terms and Conditions shall apply to all legal relationships between the Client and the Designer from the day that the modified version is received by the Client and he has not immediately made a written objection against them.
 All communications including offers and acceptances - must be made in writing by one party to the other party. In writing is understood to mean in any case, by mail, fax or email.
 The Client and the Designer may deviate from the stipulations of these General Terms and Conditions by mutual consent.