Terms and Conditions
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
“Account” means your account with Us and if an Account is held by You, You are the Account Holder;
“Administration Costs” means costs incurred by us as a result of your Account being unpaid by the due date and include the Default Fee;
“Agreement” means these terms and conditions as amended from time to time;
“Australian Standards” means the standards applicable to the Services, as well as any other standards noted in the Quote;
“Authorised Persons” means You and any persons authorised by You to liaise with Us on Your behalf and includes your employees, contractors, sub-contractors, executors and / or administrators;
“Boat” means the vehicle to which the Products and Services apply;
“Commencement Date” means the date of this Agreement or the date any Product, Service or Quote is provided to You, whichever is earlier;
“Costs” means any costs associated with this Agreement and Your use of the Services;
“Credit Application” means a credit application completed by You and accepted by Us (the terms of which do not form part of this Agreement);
“Customer” means the ultimate recipient of the Products and / or Services and includes the Third Party Customer as the context requires;
“Default Fee” means the sum of $55.00 (inc GST) being the fee payable if your Account shall be in arrears for greater than 14 days and we issue any reminder notices to You;
“Delivery” means the delivery of the Products, whether by delivery to You, the Boat, any other location as directed by You, or collection from Us;
“Demand Costs” means the legal costs incurred by Us to issue a letter of demand to You if your Account remains unpaid for a period of 28 days from the due date, being $250.00 plus GST as at the date of this Agreement;
“Deposit” means the deposit payable by You in accordance with this Agreement;
“Force Majeure” means any event outside of Our control which will have an impact on Our ability to provide the Services to You including acts of terrorism, acts of war, acts of God, tempest, heavy rain, equipment issues, pandemics, strike or other industrial action and such other events reasonably determined by Us as being outside of Our control;
“Intellectual Property” means reports, designs, checklists and / or other proprietary information that was created by Us, including our internal processes;
“Invoice” means a tax invoice issued by Us to You for the supply of the Services, as required from time to time;
“Job” means any individual Service provided by Us to You pursuant to each Quote or purchase order raised by You;
“Owner” means the owner of the Boat where the Services will be provided;
“Products” means any products an d/ or materials supplied by Us to You or the Customer as required from time to time;
“Quote” mean a quote provided by Us to You for the Services;
“Reports” means any reports issued by Us to You following the completion of the Services as may be required by You;
“Service” means any service utilised or requested by You in accordance with this Agreement, including detailing, maintenance, restoration repairs, supply / delivery and / or installation of Products, and management and planning and / or any other service provided by Us to You from time to time (including any Reports), as may be advertised on our website and in accordance with this Agreement;
“Sub-Contractors” means any person contracted by Us to provide the Services to You;
“Term” means the term of this Agreement as noted in Clause 2 of this Agreement;
“Third Party Customer” means the ultimate recipient of the Products / Services, who does not contract directly with Us and includes any head contractors or Owners;
“Us” / “Our” / “We” means A1 Marine Pty Ltd (ACN 112 106 108) as trustee for The Rynhoud Family Trust (ABN 45 329 006 022) trading as A1 Marine and its employees, authorized representatives and assigns;
“Utilities” means water, gas and electrical utilities and services (including fixtures and fittings) within the Boat;
“Worksite” means the location where the Services will be provided;
“You” means the person who contracts with Us or engages Us to quote or provide any Services.
2. TERM AND TERMINATION OF AGREEMENT
a) This Agreement will commence once accepted by You.
b) You will be deemed to have accepted the terms and conditions of this Agreement if You:
i. request or accept a Quote from Us;
ii. Pay a Deposit to Us; and / or
iii. In any other way communicate with us in relation to the Services after You have been provided with a copy of this Agreement.
c) This Agreement will continue in full force and effect until terminated bv either party.
d) This Agreement may be terminated by either party with 2 business days written notice to the other PROVIDED THAT such notice may not be provided by You prior to a Job being finalised, unless We have breached this Agreement.
e) Your obligation to pay monies to Us in accordance with this Agreement will survive the termination of this Agreement.
f) Any Jobs that remain unfulfilled at the date of any termination of this Agreement shall be paid in full by You and We will complete any Jobs paid in full.
3. COSTS AND CHARGES
3.1 Deposit
Deposits may be payable by You in accordance with clause 7.2 of this Agreement and We may use the Deposit to pay for the hire of any equipment or third party suppliers, in order to provide the Products or Services to You. Any Deposits paid by You are non-refundable.
3.2 Costs
a) The Costs are payable by You and will be detailed in the Quote.
b) The actual Costs may not be known until We or the Sub-Contractors have an opportunity to view the Boat and ascertain the condition of the Boat and any applicable Utilities.
c) You agree and acknowledge the Costs are estimated and We may Invoice You for any increased Costs incurred due to the Boat not being as anticipated or as described by You.
d) You agree to indemnify Us for any Costs and We reserve Our right to require prepayment of the Costs before commencing or finalising any Services to You.
e) If We note the Quote is based on estimated costs, You accept the same is not a fixed price Quote and may be based on a visual only inspection, or information provided by You, and the scope of works may vary once We have the Boat in Our possession.
f) You agree and acknowledge that We may not know the full extent of damage to the Boat (including rot, degradation, fractures, contamination and / or infestations) and such costs will only be known once works commence. In this regard We will quote an hourly rate for these Services.
3.3 Administration Costs, Default Fees & Demand Costs
We may charge you Administration Costs, Demand Costs and / or Default Fees in accordance with this Agreement if You do not pay Your Invoices as required. These costs also include any debt recovery and legal costs (on an indemnity basis) that may be incurred by Us should you default on this Agreement.
3.4 Interest on Arrears
We reserve Our right to charge You interest on any accounts in arrears for more than 14 days at a rate of 15% per annum. The interest charged will form part of the Arrears and must be paid in full before the provision of any further Products, Services or Reports to You.
3.5 Credit Card Fees
You may be liable for additional fees if You wish to pay an Invoice by credit card. Current credit card fees are 1.5% of any payment made by You by credit card and these fees will vary from time to time.
4. GST
All Costs and charges are exclusive of GST and are in Australian dollars unless otherwise stated.
5. BILLING
a) We will provide an Invoice upon finalisation of the Job or in instalments as We reasonably determine, or as otherwise agreed in the Quote.
b) We may charge you Administration Costs, Demand Costs and / or Default Fees in accordance with this Agreement if You do not pay Your Invoices as required.
c) Should you fail to remedy any failures to pay, We may (in Our sole and absolute discretion):
i. stop issuing You credit (if You are an Account Holder);
ii. suspend any Services being provided by Us to You;
iii. Withhold any Reports;
iv. refuse to supply any further Products or Services to You; and / or
v. place conditions on Your agreement with Us, as We see fit (including, but not limited to, all Orders being paid in full in advance and / or bank guarantees or other security for payment).
6. QUOTES AND ESTIMATIONS
a) We may be requested to provide a Quote for the provision of the Services to You, which may also be requested on behalf of a Third Party Customer.
b) Our Quote will detail the Services that will be provided by Us and will detail assumptions made for the purposes of the Quote and items that are not included in the Quote.
c) Boat access confirmation and full Job particulars must be supplied by You by the date specified in the Quote.
d) To prepare a Quote we will need the particulars of the Boat, details of the Products and Services required (if known), the Boat’s location, the details of the Customer and billing information.
e) We accept no responsibility for the accuracy of any drawings provided to Us by You, the Owner or any third party, unless the Quote specifies that We will prepare the template and You have paid the cost of preparing the template in accordance with this Agreement.
f) A Quote will estimate the Costs for the Services to be provided and will allow for a 3% variation. We accept no liability for area estimation of the Boat and it is Your responsibility to ensure the area detailed is accurate and You are satisfied with the amount allowed for the variations. Any Services provided over and above the 3% buffer for variations shall be payable by You in accordance with the Costs, averaged to a per unit or per metre rate and payable by You accordingly.
g) Once a Quote is provided to You, it will remain current and valid for 60 days from the date of the Quote, errors and omissions excepted.
h) Any changes to the scope of works provided to Us as part of the quoting process (including any shortened time frames) will be a variation and will require an amended Quote.
i) We may vary our Quote at any time prior to an Invoice being raised for the required Services for reasons where further charges are justified. Such additional costs are determined in our absolute discretion.
j) Quotes do not include any works required in relation to any Utilities unless specifically included.
k) Quotes may include rubbish removal costs if requested. If no rubbish removal costs are noted, they are not included in the Quote and You must arrange for all rubbish removal from the Boat.
7. JOBS
7.1 Requesting a Job
Should You request We proceed with a Job as per the Quote, We will advise you of the estimated completion date for the Services. This estimated date may vary (including being cancelled and rescheduled) based on weather conditions at the date the Services are to be provided, access restrictions at the Boat, Force Majeure, scheduling issues and / or such other reasons which may restrict our ability to provide the Services at the time anticipated.
7.2 Deposits
a) On confirming a Job, you may be required to pay a Deposit, equal to 25% of the gross value of the Invoice.
b) The Deposits paid by You are non-refundable, unless We have acted in breach of this Agreement.
c) We reserve our rights to vary (including increase) the amount of any Deposit required from You and place any conditions we deem necessary on such Deposit.
7.3 Payment of Account
a) The Invoice will be payable in full by no later than 7 days from the date of the Invoice, unless You are an Account Holder in which case You must pay the Invoice in accordance with your Account conditions.
b) If You are an Account Holder and Your Account is in arrears or default, We will not complete any further Services for You and reserve Our rights to exercise a Lien over Your Reports and the Boat unless the Account arrears are cleared and the Invoice is paid in full.
7.4 Ownership of Intellectual Property in the Reports
Upon full payment of the Invoice, ownership of the Report will vest in You (or the Third Party Customer if applicable). Unless and until the Invoice has been paid in full, We retain ownership of the Report and reserve Our rights to take action as We see fit to enforce Our rights.
7.5 Finalisation Time Frames
We will make Our best endeavours to provide the Services and Reports to You within the time frames detailed in the Quote, as may be amended from time to time if required by Us. We take no responsibility for any delays which have been caused by Your breach of this Agreement or Force Majeure.
8. PRICELIST
Our price list may vary from time to time and the price payable by You will be as per the current price list at the date of Invoice, or in accordance with a current Quote.
9. PRODUCT AND SERVICE LIABILITY
9.1 Quality and Timing of the Product or Service
a) We will endeavour at all times and wherever reasonably practicable to ensure that the Services provided to You are as described and as requested.
b) We will endeavour to complete the Services within agreed time frames (assuming materials, products, labour, weather conditions and other contingencies are as expected), subject to force majeur and any other event outside of Our control (such as Your actions or actions of third parties) and You agree and acknowledge We will not be liable to You or the Owner for any loss or damage suffered due to these approximate time frames not being met.
c) We will endeavour to notify You as soon as possible if We expect that the Services and / or the finalisation of the Reports may be delayed for any period of time, in so far as we are able to monitor the same.
9.2 Force Majeure
For any delays that may arise due to Third Party Installers, Utility issues, or for other reasons outside of Our control (such as Force Majeure) You agree and acknowledge that We will not be liable for any costs or delays for any Product Delivery or Services to be provided by Us pursuant to this Agreement.
9.3 Third Parties
Should Our ability to supply the Services to You be impacted by third parties (including, but not limited to, if there are other tradespersons within the Boat who are impacting on Our ability to provide any Services in a timely or safe manner), You agree that We will not be held liable
9.4 Product Delivery
If You direct us to deliver Products to an address and direct us to leave the same unattended, the said delivery shall be at Your sole risk and You must ensure the same are insured as You require. We accept no liability for Products delivered as directed by You.
9.5 Materials
You agree and acknowledge that materials supplied may vary in shade, texture and / or finish and may fade over time or become damaged if exposed to the elements / chemicals, or impacted / scratched. You are responsible for reviewing the manufacturer’s instructions and recommendations regarding the care of the same as required.
9.6 Liquidated Damages
Should We be held liable for any costs, damages or losses, howsoever incurred, You agree that any liquidated damages payable by Us to You shall be paid at a fixed rate of $1.00 (AUD) per day and You acknowledge these costs are fixed and reasonable.
10. BOAT
10.1 Access
You will provide Us or our agents and Sub-Contractors safe and prompt access to the Boat to inspect the Boat and / or complete the Services, including if we reasonably require access following termination of this Agreement.
10.2 Owner’s Permission
If You are not the Owner, You agree that You have obtained the consent of the Owner to allow Us to supply the Services within the Boat.
10.3 Safety
You are responsible for ensuring the Boat is safe and free of any obstacles.
10.4 Testing of Boat
We may test drive the Boat at our discretion and / or drive the Boat to or from a nominated delivery point if requested by You. We are not liable for any damage to the Boat, unless caused by the negligence and / or wilful misconduct of our staff.
10.5 Boat Assumptions
We make assumptions about the Boat based on information provided by You for the Job and as detailed in the Quote. Should these assumptions be incorrect (which We only know with certainty when the Job has commenced), We will contact You or Your Authorised Person to obtain a verbal confirmation We are authorised to proceed with the Services for the Job and confirm any additional Costs if We proceed. We reserve Our rights to cease works if We reasonably determine authority from You or the Authorised Person is required to proceed, and cannot be obtained.
11. OUR OBLIGATIONS
- We will hold insurances to cover your Boat while We are required to tow the same, either on water or road, at any time for any damage caused by the negligence and / or wilful misconduct of our staff whilst they are driving / towing the Boat. You must ensure the Boat is insured for all other possible losses including but not limited to theft or storm damage.
- We will comply with all legal requirements and directions of hard stand and crane owners / operators, as well as the rules and obligations of the relevant wharf at all times.
12. RETENTION OF TITLE
You agree and acknowledge no rights or title to the Products shall vest in You or the Customer unless and until We have been paid all monies due to Us and all other obligations of the Customer have been met.
13. ACCOUNT HOLDERS
We may offer You the privilege of being an Account Holder with Us, subject to a Credit Application being completed by You and accepted by Us, in accordance with our applicable terms and conditions at the time of application. We may refuse or revoke any Account in our absolute discretion, including if the Account Holder is in breach of this Agreement and / or their Account is in arrears. It is a condition of any Account being granted to You that any guarantees required from You are provided as required. The terms and conditions of an Account do not form part of this Agreement, however this Agreement will remain applicable to any Account Holders.
14. AUTHORISED PERSONS
a) An Authorised Person, as noted by You and amended from time to time in writing, may contract with Us on Your behalf and may instruct Us as to the supply of the Services as required from time to time for a Job (whether an existing Job or a new Job including a Quote).
b) An Authorised Person may incur expenses on Your Account and on Your behalf which You agree and acknowledge You will be held liable for, absolutely.
c) You may revoke the authority of an Authorised Person by providing us notice in writing, by email, by fax or by post, noting that the authority of the Authorised Person has been revoked. This will take up to one business day for Us to process and You will remain liable for any Costs incurred by Us or charged to Your Account within the said business day after you have provided us with the said notice (unless otherwise acknowledged by Us in a shorter time frame).
d) We will do everything reasonably necessary to ensure any revoked authority is noted by Us and enforced, however You release Us from any liability for a period of 2 business days from the date You notify Us of the change in Authorised Persons for Your Account.
e) In circumstances of alleged fraudulent charges to Your Account (by someone holding themselves out as an Authorised Person) You release Us absolutely for any costs and charges on your Account which have been charged by Us to You in good faith where we have acted reasonably.
f) We will make best endeavours to identify any Authorised Persons at the time of any charges to Your Account and You will ensure any Authorised Person will provide photographic identification (any Australian issued driver’s license, passport or proof of age card) upon request.
15. WARRANTY
15.1 Consumer Warranties
We warrant that we will comply with all Australian Consumer Laws.
15.2 Liability for Defects
If You notify Us in writing within 14 days of Us completing the Job that there are issues with the Services provided and / or the Report, We will remedy any defects as soon as reasonably possible at Our expense. This acceptance of liability does not include any defects or issues arising from the actions of third parties.
16. TOLERANCES AND LIMITATIONS
You agree and acknowledge that there are customary building industry tolerances that apply to the Products. When We are providing the Products and Services to You, you acknowledge there will be tolerances as determined by the Australian Standards and industry accepted tolerances. You are responsible for checking the accuracy of all measurements and providing accurate data to Us.
17. SUSPENSION OF THE SERVICE
We may suspend the Services and supply of any Reports to You if:
a) required by law;
b) there is a Force Majeure;
c) there is a threat or risk to security to Us, Our employees, agents and / or Sub-Contractors;
d) You are in default of this Agreement;
e) any Account held by You is in arrears;
f) there is suspected fraud by You or Customer (including in relation to Your Account);
g) You are considered by Us (in our absolute discretion) to be an unacceptably high credit risk,
h) An insolvency event occurs;
i) You die; and / or
j) You cease trading.
18. AGREEMENT PREVAILS
Should We enter into any subsequent agreement with You relating to any Services, this Agreement will prevail and this Agreement will be treated as being re-executed by You one day after we have signed any further Agreement with You.
19. ENFORCEMENT
Should We be required to instruct solicitors to enforce this Agreement against You, such as contacting You to demand the payment of costs and Costs in relation to this Agreement, as well as commence any proceedings against You, You agree and acknowledge that You will be liable for all of our legal costs and expenses on a full indemnity basis.
20. INDEMNITY
We do not guarantee, represent, or warrant that our Services will be uninterrupted or error-free.
You agree that, to the maximum extent permitted by law, any and all liability and responsibility of Us to You, the Third Party Customer, the Owner or any other person under or in connection with this Agreement, or in connection with the Services, or Your use of or inability to use the the Services is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise providing that such loss or damage has not resulted from Our breach of this Agreement or Our negligent acts or omissions.
Our liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, general and special damages and consequential and incidental loss.
21. PRIVACY
We may use Your address, contact and email account details as provided in this Agreement to provide You with Quotes, Invoices, reminder notices and other administrative notices and receipts from Us.
Does A1 have a privacy policy?
22. FAULT REPORTING
We will take all possible and reasonable steps to rectify any faults that are required to be rectified by Us in accordance with this Agreement and any relevant Australian Consumer Law.
23. VARIATIONS TO THIS AGREEMENT
This Agreement may be varied by Us from time to time by notice in writing to You.
24. JURISDICTION
The proper law of this Agreement shall be the law of Western Australia and the parties to this Agreement agree to unconditionally submit to the non-exclusive jurisdiction of the courts of Western Australia.
25. NOTICES
All Notices must be in writing and addressed to the party at their address nominated in this Agreement, or as amended in writing from time to time.
26. TRUST WARRANTIES
If You or the Customer are trustee of a trust (the “Trustee”), You warrant:
- This Agreement is binding on the Trustee personally and in their capacity as trustee of the Trust;
- The Trustee has power under the Trust Deed to execute and perform his obligations under this Agreement and all necessary action has been taken to authorise the execution and performance of this Agreement under the Trust Deed and (if the Trustee is a company) under the Memorandum, Articles of Association and constitutions;
- This Agreement is executed and all transactions secured by this Agreement are or will be entered into as part of the due and proper maintenance of the Trust and are or will be for the benefit of the beneficiaries;
- The Trustee has complied with all fiduciary obligations directly or indirectly imposed on the Trustee;
- The Trustee has the right to be fully indemnified out of the Trust Fund and no action has been taken to restrict or limit that right;
- The Trustee is not in default under the Trust Deed;
- Nothing in this clause 26 prevents the Trustee from distributing the income (but not the capital) of the Trust Fund in accordance with the Trust Deed unless and until We direct the Trustee not to make such distributions or until an event of default occurs, whichever occurs first.
27. ASSIGNMENT OF THIS AGREEMENT
You must not assign any of Your rights or obligations under this Agreement without Our written consent, which may be arbitrarily withheld.
We may assign Our rights under this Agreement to any successors, assigns or purchasers of our business, with notice to You in writing.
28. INTELLECTUAL PROPERTY
We may from time to time provide You or the Third Party Customer with Our Intellectual Property. You must not at any time, without our express written consent, allow for any of Our Intellectual Property to be transmitted, copied, provided to any third parties and / or provided to the public domain and You must make all best endeavours to protect our Intellectual Property which You agree and acknowledge has significant commercial value.
29. ELECTRONIC COMMUNICATION
We will communicate with You via electronic means to the email address provided by You from time to time. For contractual purposes, You:
a) Consent to receive communications from Us in an electronic form; and
b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications would satisfy if it were in hardcopy writing.
30. WAIVER
Subject to any express consent in writing of any of the parties no waiver by any party or any default in the strict and literal performance of, or compliance with, any provision, condition, or requirement of this Agreement shall be deemed to be a waiver of strict and literal performance of, and compliance with, any other provision, condition or requirement, nor to be a waiver of, or in any manner release of, any other party from strict compliance with any provision or requirement in the future or in any manner impair the exercise of any such rights accruing to it