Company Terms and Condition
Wakeford Marine Services Pty Ltd
Formation of Contract
An Agreement for the purchase of Goods and Services is formed between WMS and the Customer when the Customer confirms acceptance of the Purchase Order; communicates with WMS in any way which confirms or implies acceptance of the Purchase Order; or receives the Goods and Services from WMS.
The acceptance of a Purchase Order by the Customer includes agreement by both WMS and the Customer that these Terms and Conditions of contract set out the sole basis for the purchase of Goods and Services.
Definitions:
o “Agreement” means these Purchase Order Terms and Conditions, the Purchase Order and any document expressly incorporated.
o “Confidential Information” means information of either WMS or the Customer that by nature is confidential, including but not limited to the Terms and Conditions of this Agreement.
o “Customer” means the client (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorization, tax invoice or any other form of communication between WMS and the Customer.
o “Goods” means all Goods supplied by WMS to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorization, or any other forms as provided by WMS to the Customer.
o “Price” means the price payable for the Goods and Services as agreed between WMS and the Customer, as stated in the Purchase Order.
o “Purchase Order” means a quotation, work authorization, tax invoice or any other form of communication provided by WMS to the Customer which sets out the scope of work and indicative or final costs for the procurement of Goods and/or Services.
o “Services” means all Services supplied by WMS to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above) and as described on the invoices, quotation, work authorization, or any other form of communication as provided by WMS to the Customer.
o “Terms and Conditions” means these purchase order Terms and Conditions.
o “Work or Works” mean the provision of Goods and Services to the Customer.
o “WMS” means Wakeford Marine Services Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Wakeford Marine Services Pty Ltd.
1. The Customer hereby accepts the Goods and Services described by WMS in the Purchase Order, agreeing to pay WMS the price quoted verbally or in writing or invoiced. A deposit of 50% of the Purchase Order and work authorization signature may be required prior to commencement of work.
2. All equipment and material are guaranteed by WMS as specified. All Services shall be completed in a workmanlike manner according to normally accepted practices.
3. Additional goods and services to be provided will only commence on Customer’s authorization and will be payable by the Customer as required by WMS.
4. Price and Payment
4.1 Subject to the provisions of clauses 4.2 to 4.11, at WMS’s sole discretion, the Price shall be either:
4.1.1 as indicated on the Purchase Order provided by WMS to the Customer in respect of Goods and/or Services supplied; or
4.1.2 WMS’s quoted Price, provided that the Customer shall accept WMS’s quotation in writing within thirty (30) days; or
4.1.3 WMS’s estimated Price, subject to an assessment of the full scope of works to be carried out on the Customer’s vessel by WMS, followed by the Customer’s authorization of the works and price, prior to the commencement of the works.
4.2 WMS reserves the right to change the price in the event of a variation to WMS’s Price. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as weather conditions, age of vessel, the occurrence of osmosis on the vessel or as a result of increases to WMS in the cost of materials and labour) will be communicated with the Customer with approval sought from the Customer prior to carrying out the variations. All variations shall be reflected in a Tax Invoice, which is payable by the Customer on collection of the vessel or Goods.
4.3 If an estimate of Price is provided, the final Price can only be ascertained upon assessment of the works by WMS, with the full scope of works and pricing agreed by the Customer prior to commencement of the works.
4.4 WMS may submit detailed progress payment claims in accordance with WMS’s specified payment schedule. Such payment claims may include the reasonable value of authorized variations and the value of any materials delivered to the site but not yet installed.
4.5 WMS reserves the right to change the Price in the event of a variation to the Purchase Order.
4.6 Where the Goods or vessel are not collected within forty-eight (48) hours of notification to the Customer that they are ready for collection, WMS (at its sole discretion) may charge the Customer a reasonable fee for storage.
4.7 At WMS’s sole discretion a non-refundable deposit and/or an administration fee may be charged to the Customer for the provision of Goods and/or Services.
4.8 At WMS’s sole discretion:
4.8.1 payment shall be due on delivery of the Goods and Service; or / and
4.8.2 payment shall be due before ordering and installing of the Goods
4.9 The Customer agrees to pay WMS for the completed work as described in the Purchase Order on receipt of an invoice, before collection or delivery of the vessel.
4.10 Payments are to be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the customer and WMS.
4.11 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Access
The Customer shall ensure that WMS has clear and free access to the Customer’s vessel to enable the Services to be carried out and/or Goods to be provided. WMS shall not be liable for any loss or damage whatsoever that may arise to the Customer’s vessel (including damage to any other secondary vessel, property, or marina that is necessary for WMS to gain access to the worksite), unless such loss or damage due to WMS’s gross negligence. Notwithstanding the above, the Customer indemnifies WMS against any claims from third parties for losses or damages arising out of WMS gaining access to the Customer’s vessel.
6. Title
6.1. WMS and the Customer agree that ownership of the Goods shall not pass until:
6.1.1. the Customer has paid WMS all amounts owing for the Goods and Services; and
6.1.2. the Customer has met all other obligations due by the Customer to WMS in respect of all contracts between WMS and the Customer
6.2. Receipt by WMS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then WMS’s ownership or rights in respect of the goods shall continue.
6.3. It is further agreed that:
6.3.1. until such time as ownership of the Goods passes from WMS to the Customer, WMS may give notice in writing to the Customer to return the Goods to WMS. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
6.3.2. if the Customer fails to return the Goods to WMS, then WMS may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
6.3.3. the Customer is only a bailee of the Goods and until such time as WMS has received payment in full for the Goods and Services then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes WMS for the Goods and Services, on trust for WMS; and
6.3.4. the Customer shall not deal with the money of WMS in any way which may be adverse to WMS; and
6.3.5. the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of WMS; and
6.3.6. WMS can issue proceedings to recover the price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
6.3.7. until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that WMS will be the owner of the end products.
6.3.8. Once the Goods are in the Customer’s possession, the Customer assumes full risk of loss or damage to the Goods.
7. Cancellation
7.1. WMS may cancel any contract to which these Terms and Conditions apply or cancel delivery of Goods and/or Services at any time before the Goods and/or Service are delivered by giving written notice to the Customer. On giving such notice WMS shall repay to the Customer any sums paid in respect of the Price. WMS shall not be liable for any loss or damage whatsoever arising from such cancellation.
7.2. In the event that the Customer cancels delivery of Goods or Services, the Customer shall be liable for any loss incurred by WMS (including, but not limited to, any loss of profits) up to the time of cancellation.
7.3. In the event that WMS is engaged in repeat or ongoing work with the Customer, then either party must provide a minimum of thirty (30) days’ notice to cancel or suspend the ongoing work.
7.4. Cancellation of orders for Goods made to the Customer’s specifications or non-stock list items will not be accepted, once production has commenced.
8. Default & Consequences of Default
8.1. Interest on an overdue invoice shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at WMS’s sole discretion such interest shall compound monthly at such a rate).
8.2. In the event that the Customer’s payment is dishonoured for any reason, the Customer shall be liable for any dishonour fees incurred by WMS.
8.3. If the Customer defaults in payment of any invoice when due, the Customer agrees to indemnify WMS from and against all costs and disbursements incurred by WMS in pursuing the debt, including legal costs, administration costs and WMS’s collection agency costs.
8.4. Without prejudice to any other remedies WMS may have, if at any time the Customer is in breach of any obligation (including those relating to payment), WMS may suspend or terminate the supply of Goods and Services to the Customer and any of its other obligations under the Terms and Conditions. WMS will not be liable to the Customer for any loss or damage the Customer suffers because WMS has exercised its rights under this clause.
8.5. If any invoice remains overdue after thirty (30) days, then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
8.6. Without prejudice to WMS’s other remedies at law WMS shall be entitled to cancel all or any part of any work for the Customer which remains unfulfilled and all amounts owing to WMS shall, whether or not due for payment, become immediately payable in the event that:
8.6.1. any money payable to WMS becomes overdue, or in WMS’s opinion the Customer will be unable to meet its payments as they fall due; or
8.6.2. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
8.6.3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
9. Warranty
9.1. The warranty on Goods provided by WMS shall be the current warranty provided by the manufacturer of the Goods. WMS shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
9.2. WMS provides a 3 (three) months limited labour warranty. Equipment or parts failure due to lack of proper maintenance or abuse is expressly excluded.
10. Intellectual Property
10.1. Where WMS has designed, drawn or written goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in WMS, and shall only be used by the Customer at WMS’s discretion.
10.2. The Customer warrants that all designs or instructions to WMS will not cause WMS to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify WMS whatsoever against any action taken by a third party against WMS in respect of any such infringement.
10.3. The Customer hereby authorises WMS to utilise images of the Goods designed or drawn by WMS in advertising, marketing, or competition material by WMS.
11. Security and Charge
11.1 Despite anything to the contrary contained herein or any other rights which WMS may have howsoever:
11.1.1 The Customer is responsible for all costs and legal fees incurred by WMS in connection with any action or proceeding (including but not limited to tribunal, arbitration, court action and appeals) arising out of this Agreement, collection of any outstanding amounts due, whether or not legal action is taken.
11.1.2. should WMS elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify WMS from and against all WMS’s costs and disbursements including legal costs and collection costs.
12. WMS’s Additional Rights
12.1. Where the Customer has left any item or vessel with WMS for repair, modification, exchange, storage or for WMS to perform any other service in relation to the item and WMS has not received or been tendered the whole of the invoice price, or payment has been dishonoured, WMS shall have:
12.1.1. a lien on the item or vessel;
12.1.2. the right to retain the item or vessel for the price while WMS is in possession of the item or vessel;
12.1.3. a right to sell the item or vessel to defray costs.
12.2. The lien of WMS shall continue despite the commencement of proceedings, or judgment having been obtained.
12.3 The Customer indemnifies WMS and its personnel against any loss suffered by WMS which may arise in connection with a breach of this Agreement by the Customer or willful misconduct or negligent acts or omissions of the Customer, provided that the Customer’s liability shall be reduced to the extent that WMS contributed to the loss.
13. Confidentiality
Each party must keep confidential all Confidential Information which comes to its knowledge, either directly or indirectly, and must not disclose any Confidential Information to any person except in accordance with this Agreement or with the prior written consent of the disclosing party.
Nothing in this Agreement requires the parties to maintain the confidentiality of any Confidential Information where:
1. at the time the Confidential Information was first disclosed, the receiving party was already in lawful possession of that Confidential Information;
2. the Confidential Information was developed independently of the disclosing party;
3. the Confidential Information becomes generally available to the public other than as a result of the negligence of a party or breach of this Agreement; or
4. disclosure of the Confidential Information is required by legislation or court order and the disclosing party has provided written notice prior to disclosing the Confidential Information.
14. General
14.1. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2. These Terms and Conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
14.3. WMS shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by WMS of these Terms and Conditions.
14.4. In the event of any breach of this contract by WMS, the remedies of the Customer shall be limited to direct damages which under no circumstances shall exceed the Price of the Goods and/or Services provided to the Customer under that Purchase Order.
14.5. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by WMS nor to withhold payment of any invoice because part of that invoice is in dispute.
14.6. With a partial payment of a Purchase Order, the Customer thereby accepts the full Price of the Purchase Order and will be obliged to settle the full price amount without further debate.
14.7. WMS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
14.8. The Customer agrees that WMS may review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which WMS notifies the Customer of such change, which may include a notification of WMS’s website which contains these Terms and Conditions.
14.9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
14.10. The failure by WMS to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect WMS’s right to subsequently enforce that provision.