‘Agreement’ means this document.
‘Customer’ means the person, firm, body corporate, association or company who, or on whose behalf, requests Concept Fibres to perform the Works.
‘Concept Fibres’ means the company Concept Fibres and any of its employees, agents or subcontractors.
‘Project’ means the boat, watercraft, component and any non-marine related works described on any quotation, invoice, job sheet or other document issued by the Concept Fibres to the Customer and it includes the hull, materials, motors, controls, equipment, accessories, dinghies, tenders and their motors.
‘Works’ means all works carried out by the Concept Fibres at the request of the Customer, its employees or agents, including without limitation:
- All new builds, refits, repairs, maintenance, improvements or shipwrights work;
- The supply of all machinery, parts, materials, equipment, accessories, labour, or specialised tools and/or the removal from the Project of any machinery, parts, materials, equipment or accessories;
- Any operation, movement or storage of the Project.
- Scope of Work and Authorisation
The Customer warrants that it is the owner of the Project or the Project owner’s agent and that it has the authority to request that the Concept Fibres perform the Works. The Customer authorises Concept Fibres to move and store the Project by whatever means and in whatever circumstances Concept Fibres considers necessary and appropriate for the performance of the Works. The Customer acknowledges that quotes for Works are valid for the period stated in the quote.
The Customer agrees to pay the Concept Fibres within 7 days of an invoice being issued. If the Customer owes any amount on any invoice after the expiration of 7 days from the date of invoice, Concept Fibres will be entitled to claim interest at the weighted average interest rate on credit outstanding as published by the Reserve Bank of Australia time to time. Concept Fibres may extend its payment terms for businesses or otherwise arranged with Concept Fibres.
The Customer agrees that until all outstanding invoices together with any interest, charges or other costs payable have been paid in full, the title of any machinery, parts, materials, equipment or accessories supplied by Concept Fibres does not pass to the Customer and the Customer is not entitled to delivery of the Project.
The Customer must accept delivery of the Project within 5 days of Concept Fibres providing notification to the Customer that the Project is ready for delivery and if the Project is not accepted within such time, Concept Fibres will be entitled to claim storage costs at a rate of $10 per square metre of floor space the Project occupies for each day that the Project remains in the custody of Concept Fibres. This is in lieu of the potential revenue that could be generated from that same space if the Project was vacant. The Customer agrees that by accepting delivery of the Project it has inspected the Works and satisfied itself that all Works have been performed and completed with due care and skill and to a proper and satisfactory standard.
Concept Fibres is entitled to a repairer’s/builder’s lien over the Project and/or a general lien over any other property of the Customer that comes into the possession of Concept Fibres for any reason until all amounts owing by the Customer to Concept Fibres are paid in full.
- Liability Limitation and Indemnity
To the extent the Trade Practices Act 1974 (Cth) (TPA) or any similar state law applies to this Agreement, then certain conditions and warranties will be implied into this Agreement to the benefit of the Customer, and those conditions and warranties cannot be excluded, restricted or modified by any provision of this Agreement.
If Concept Fibres is liable for a breach of a condition or warranty implied by the TPA, then to the extent permitted by section 68A of the TPA, Concept Fibres liability to the Customer will be limited to, at the discretion of Concept Fibres either:
- the re-supply of the goods or services; or
- the cost of having the goods or services re-supplied.
Except as provided for in this Agreement, Concept Fibres will not in any circumstances be liable for any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works howsoever caused, including by way of negligence, breach of contract, breach of duty of bailment or wilful act of Concept Fibres, its employees, agents or sub-contractors.
- Sub-contracting and Indemnity
Concept Fibres is entitled to subcontract on any terms the whole or part of the Works.
- Liability of Employees, Agents and Subcontractors
It is expressly agreed that every exemption from liability, defence, immunity and right under this Agreement will extend to and protect every employee, agent and subcontractor defined as Concept Fibres in this Agreement and in this regard Concept Fibres who is a party to this Agreement will be deemed to be acting as agent or trustee on behalf of all employees, agents and subcontractors.
- Force Majeure
If Concept Fibres by reason of any matter beyond its control, including without limitation: any act of God; strike, lock-out or labour disturbance; war or warlike condition; act of terrorism; civil riot; sabotage; explosion; lightning; fire; earthquake, landslide or tidal wave; storm, flood, or other extraordinary weather conditions; quarantine; requirements of government authorities; unavailability or delay in supplies (including electricity, oil or gas), equipment or transport; refusal of or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences; or otherwise is unable to perform any part of its obligations under this Agreement, to the extent and for the period that it is not reasonably able to perform, Concept Fibres will not be liable to the Customer.
- Time Bar
Concept Fibres will not in any circumstances be liable for any claim for loss, damage or injury (including any economic or consequential loss) arising out of or in any way connected with the performance of the Works, whether involving negligence of Concept Fibres or otherwise, unless such claim is made in writing within six (6) months of the earliest of the following:
- the Works being completed; or
- the Project leaving the acre, custody or control of the Concept Fibres.
Concept Fibres reserves the right to use any media, inclusive but not limited to images, video, audio and documentation related to any Project or Works conducted by Concept Fibres, unless otherwise stated by the Customer in writing.