Terms & Conditions
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
“Agreement” means any agreement for the provision of goods or services by the Supplier to the Customer;
“Conditions” means these Terms and Conditions of Sale;
“Consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;
“Customer” means the person, jointly and severally if more than one, acquiring goods or services from the Supplier;
“Customer’s Property” means the machinery/ vessel, including its hull, motors, controls, equipment, accessories, dinghies, tenders and their motors, and any other property of the Customer, delivered to or made available to the Supplier for its performance of the services;
“End User” means any person, firm or corporation who has acquired the goods from the Customer;
“goods” means goods supplied by the Supplier to the Customer;
“GST” means any consumption tax imposed by government, whether at point of supply or at some other specified occurrence, by whatever name, and includes (without limitation) a goods and services tax, a broad based consumption or indirect tax, or value- added tax;
“PPSA” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
“services” means services supplied by the Supplier to the Customer, including without limitation all repairs, installation, operation, maintenance, improvements, shipwright work or the removal of parts;
“Supplier” means Northern Maritime & Industrial Services Pty Ltd (ACN 132557245), or any other related entity or business name.
“tax invoice” means a tax invoice which complies with the definition contained in section 29-70 of A New Tax System (Goods and Services Tax) Act 1999 or any amending legislation.
Basis of Contract
The Conditions apply exclusively to every Agreement and cannot be varied or replaced by any other condition(s) including the Customer’s terms and conditions of purchase (if any) unless expressly accepted in writing by the Supplier.
Any written quotation provided by the Supplier to the Customer for the proposed supply of goods or services is deemed to be an invitation only to the Customer to place an order based upon that quotation. Quotations are valid for 30 days from the quotation date.
If the Customer authorises the commencement of the services it will be regarded as having accepted the Supplier’s quote or estimate and will be bound by the Conditions.
The Supplier may, at its discretion; subcontract on any terms the whole or part of the services.
The Supplier has absolute discretion to refuse to accept any offer.
The Customer must provide the Supplier with its specific requirements, if any, in relation to the goods and services.
The Supplier may vary or amend these Conditions by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
The Customer warrants that it is the owner of the Customer’s Property and has the authority to request the Supplier to perform the services.
Prices quoted for the supply of goods or services exclude GST and any other taxes or duties imposed on or in relation to the goods or services.
Where a price quoted by the Supplier for services is specified to be an estimate, the Customer shall pay the Supplier the amount claimed by the Supplier on completion of the services, which may vary from the estimated amount and which will be based upon the actual work done and materials supplied by or on behalf of the Supplier.
Where the Customer has requested the Supplier to prepare a quotation for the provision of the services, then in the event that the Customer does not accept the quotation, the Customer shall be responsible for all labour and associated costs and charges incurred by the Supplier in preparing the quote. The Customers Property will not be reassembled following rejection of a quotation unless the Customer requests the Supplier to do so and agrees, at the time of the request, to pay the Supplier’s charges for such work.
Where there is a change in the costs incurred by the Supplier in relation to the goods or services, the Supplier may vary its price for the goods or services or order to take account of such change.
Payment for goods must be made within 30 days of the date of the Supplier’s invoice, unless otherwise specified by the Supplier in writing.
Unless otherwise agreed in writing by the Supplier, payment for the services will be:
- 50% of the quoted price immediately prior to commencement of the services (“Initial Payment”); and
- the remaining balance of the quoted price within 7 days of the date of the Suppliers final invoice for the services being issued upon completion of the services as determined in the absolute discretion of the Supplier.
Time for payment is of the essence.
The Supplier will not commence the services until the Initial Payment has been made by the Customer.
For the purposes of the GST, a tax invoice will be provided by the Supplier within 14 days of receipt of full payment in cleared funds from the Customer.
If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any of its other accrued or contingent right:-
- charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates (NT) plus 2% cent for the period from the due date until the date of payment in full;
- charge the Customer for all expenses and costs (including without limitation all legal costs and expenses) incurred by it in taking whatever action it deems appropriate to recover any sum due;
- cease or suspend supply of goods or services to the Customer without liability to the Customer or any third party for any loss or damage whether directly or consequentially;
- by written notice to the Customer, terminate any uncompleted contract with the Customer.
Clauses 6.1(e) and 6.1(f) may also be relied upon, at the Supplier’s option where the Customer becomes bankrupt or insolvent or enters into any scheme of arrangement or with or for the benefit of its creditors.
Provision of Credit
The Supplier may at any time and for whatever reason suspend, cancel, reduce or review a Customer’s credit facility written notice to the Customer.
The Supplier may at any time request additional information or the provision of further security in relation to a credit facility and may suspend or cancel a credit facility if the information or security requested is not provided within a reasonable time.
Passing of Property
Until full payment in cleared funds is received by the Supplier for all goods or services supplied by it to the Customer, as well as all other amounts owing on any account to the Supplier by the Customer:-
- title in the goods remains vested in the Supplier and does not pass to the Customer;
- the Customer must hold the goods as fiduciary bailee and agent for the Supplier;
- the Customer must hold the proceeds of sale of the goods on trust for the Supplier in a separate account with a bank to whom the Customer has not given security, however failure to do so will not affect the Customer’s obligation as trustee;
- in addition to its rights under the PPSA, the Supplier may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods or services not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.
The Supplier retains a repairer’s lien over the Customer’s Property and/or a general lien over any other property of the Customer that comes into the possession of the Supplier for any reason until all amounts owing by the Customer to the Supplier are paid in full.
Without limitation, the repairer’s lien entitles the Supplier to:
- refuse to return the Customer’s Property to the Customer; and/or
- charge the Customer transport, rent, storage and all other expenses incurred relating to the possession of the Customer’s Property.
Without limitation, the general lien, entitles the Supplier, subject to giving 14 days notice to the Customer, sell the property by private treaty or public auction, whichever the Supplier in its sole discretion deems appropriate, and apply the proceeds to the repayment of its costs and expenses and any sum which is due and payable by the Customer.
Should the Customer fail to collect any of the Customer’s Property within 3 months of notification of the services being completed the Supplier is authorised to sell such of the Customer’s Property as remains in its possession in such manner as it sees fit (and is hereby appointed as the Customer’s attorney for this purpose) and shall be at liberty to apply the proceeds of sale towards payment of any money due by the Customer to the Supplier and thereafter refund any excess to the Customer at its last known address.
The sale or delivery of part of the Customer’s Property does not affect the repairer’s lien.
The lien is in addition to any common law or legislative rights available to the Supplier concerning liens or unpaid invoices or unclaimed goods.
Personal Property Securities Act
Notwithstanding anything to the contrary contained in these Conditions, the PPSA applies to these Conditions.
For the purposes of the PPSA:
- terms used in clause 10 that are defined in the PPSA have the same meaning as in the PPSA;
- these Conditions are a security agreement and the Supplier has a Purchase Money Security Interest in all present and future goods supplied by the Supplier to the Customer and the proceeds of the goods;
- The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
- the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by the Supplier on the Personal Property Securities Register.
The security interest arising under this clause 10 attaches to the goods when the goods are collected or dispatched from the Supplier’s premises and not at any later time.
Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
The Supplier and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Conditions.
To the extent permitted by the PPSA, the Customer agrees that:
- the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on the Supplier will apply only to the extent that they are mandatory or the Supplier agrees to their application in writing; and
- where the Supplier has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
The Customer must immediately upon the Supplier’s request:
- do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
- procure from any person considered by the Supplier to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Supplier may at any time require.
The Supplier may allocate amounts received from the Customer in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in the goods supplied by the Supplier.
For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Conditions and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Conditions or the sale of the goods, except as otherwise required by law or that is already in the public domain.
Performance of contract
Any period or date for delivery of goods or provision of services stated by the Supplier is an estimate only and not a contractual commitment.
The Supplier will use its best endeavours to meet any estimated dates for delivery of goods but will not be liable for any loss or damage suffered by the Customer, the End User or any third party for failure to meet any estimated date.
If the Supplier cannot complete the services by any estimated date, it will complete the services within a reasonable time.
Risk in goods
The goods are provided ex-works with risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer from the time the goods leave the Supplier’s premises whether or not the Supplier has arranged freight of the goods to the customer’s requested destination. Where goods are supplied on a trial basis, risk in the goods remains at all times with the Customer.
The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, End User or third parties arising out of the use, installation or possession of any of the goods sold by the Supplier, unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL.
The Customer’s Property will be at the Customer’s risk while in the Supplier’s possession for the provision of the services and the Supplier will not be liable for any loss or damage to the Customer’s Property whilst in its possession, except to the extent of any liability imposed by the ACL, and the Customer agrees to indemnify the Supplier against all actions, suits, claims and demands against the Supplier arising directly or indirectly out of such loss or damage to the Customer’s Property.
Delivery and Collection of Customer’s Property
The Customer will arrange and pay for all costs associated with the carriage and insurance of the goods or services from the Supplier’s nominated collection address unless otherwise specified by the Supplier.
If the Customer does not arrange for the collection of the goods within 7 days of being advised that they are available for collection, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
Where it is agreed that the Supplier will arrange delivery, the Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
Unless otherwise agreed, the Customer indemnifies the Supplier against any loss or damage suffered by the Supplier, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and the Supplier has not used due care and skill.
The Customer must accept delivery of the Customer’s Property within 2 days of the Supplier providing notification to the Customer that it is ready for delivery and if the Customer’s Property is not accepted within such time, the Supplier will be entitled to claim storage costs at a rate of 5% of the invoiced price of the services for each day that the Customer’s Property remains in the custody of the Supplier.
The Customer agrees that by accepting delivery of the Customer’s Property it has inspected the end result of the services and satisfied itself that the services have been performed and completed with due care and skill and to a proper and satisfactory standard.
Except as the Conditions specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
If the Customer is a consumer nothing in these Conditions restricts, limits or modifies the Customer’s rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.
If the End User is a consumer and:
- the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Supplier’s liability to the Customer;
- the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of the Supplier’s liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
If clause 14.2 or 14.3 do not apply, then other than as stated in the Conditions or any written warranty statement the Supplier is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer, End User or any third party.
The Supplier is not liable for any consequential loss or expense suffered by the Customer, End User or any third party however caused, including but not limited to loss of profits, business or goodwill or any liability to the End User or a third party, except to the extent of any liability imposed by the ACL.
The Customer acknowledges that:
- it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Supplier in relation to the goods or services or their use or application. Any advice, recommendations, information or assistance provided by the Supplier in relation to the goods or services supplied by it or their use or application is given in good faith, is believed by the Supplier to be appropriate and reliable, however, as far as permitted by law, the Supplier is not liable for any loss or damage arising there from.
- it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.
- all written or verbal comments made by the Supplier or Supplier’s Representative at any testing stage of the goods are provided “as is” and without warranties of any kind either express or implied. Any testing of the goods is provided for informational purposes only and should not be considered a substitute for a comprehensive check of the goods by the Customer.
Nothing in the Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
The Supplier is not responsible or liable under any manufacturer’s warranty however, the Supplier will use its best endeavours to pass on for the benefit of the customer any warranty provided by the manufacturer of the goods.
If the Supplier is unable to deliver or provide the goods or services, then the Supplier may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer. The Supplier will be under no liability to the Customer, End User or any third party for any damages or losses, direct or indirect, resulting from such cancellation.
No purported cancellation or suspension of an order or any part thereof by the Customer is binding on the Supplier once the order has been accepted by the Supplier.
If the Customer cancels its order after acceptance by the Supplier, the Supplier is entitled to damages for breach of contract.
The Supplier is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, the Supplier may suspend or terminate the Agreement by written notice to the Customer.
These terms and conditions shall be governed and construed in accordance with the laws in force in the Northern Territory of Australia and the customer will submit to the jurisdiction of the Supreme Court of the Northern Territory of Australia in respect of all matters arising out of or in relation to the Works.