JPM SHIPWRIGHTS PTY LTD
ACN 140 917 826
TERMS AND CONDITIONS
“Agreement” means this document.
“Customer” means the person, firm, body corporate, association or company who, or on whose behalf, requests the Repairer to perform the Works.
“PPSA” means the Personal Property Securities Act 2009, as amended.
“PPS Register” means the personal property securities register established under Section 146 of the PPSA.
“Repairer” means JPM Shipwrights Pty Ltd ACN 140 917 826, and any of its employees, agents or subcontractors.
“Vessel” means the vessel, boat or watercraft described in any quotation, invoice, job sheet or other document issued by the Repairer to the Customer and it includes the hull, spars, rig, rigging, engines, motors, controls, gear, equipment, accessories, dinghies, tenders and their engines.
“Works” means all works carried out by the Repairer at the request of the Customer, its employees or agents, including, without limitation:
2. Scope of Works and Authorisation
The Customer warrants that it is the owner of the Vessel or is the agent of the Vessel’s owner and that the Customer has the authority to request that the Repairer perform the Works. The Customer authorises the Repairer to move and store the Vessel by whatever means, and in whatever circumstances the Repairer considers necessary and appropriate for the performance of the Works. The Customer acknowledges that quotations for the Works are valid for only the period stated in the quotation.
Goods and services tax (GST) will be charged on those products that attract GST at the applicable rate and the GST amount will be included in the invoice issued.
The Customer agrees to pay the Repairer within 7 days of an invoice being issued. If the Customer owes any amount of any invoice after the expiration of 7 days from the date of invoice, the Repairer is entitled to claim interest at the weighted average interest rate on credit outstanding as published by the Reserve Bank of Australia, from time to time.
The Customer agrees that until all outstanding invoices together with any interest, charges or other costs payable has been paid in full, the title of any machinery, parts, materials, equipment or accessories supplied by the Repairer does not pass to the Customer and the Customer is not entitled to deliver of the Vessel.
The Customer must accept delivery of the Vessel within 2 days of the Repairer providing notification to the Customer that the Vessel is ready for delivery and if the Vessel is not accepted within such time, the Repairer will be entitled to claim storage costs at a rate of 2% of the invoiced price of the Works for each day that the Vessel remains in the custody of the Repairer. The Customer agrees that by accepting delivery of the Vessel 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.
4. Risk Title and Lien
(a) Except as otherwise provided herein, any goods or chattels supplied by the Repairer to the Customer shall be at the Customer’s sole risk immediately on their delivery to the Customer and/or the Customer’s Vessel.
(b) Property and title in the goods and/or chattels, supplied by the Repairer to the Customer, will not pass to the Customer until such time as the goods or chattels have been paid for in full.
(c) The Repairer is entitled to a Repairer’s lien over the Vessel and/or a general lien over any other property of the Customer that comes into the possession of the Repairer for any reason until all amounts owing by the Customer to the Repairer are paid in full.
5. Personal Property Securities Act 2009
(a) the terms “Collateral”, “Debtor”, Financing Change Statement”, “Financing Statement”, “Grantor”, “Proceeds”, “Secured Party”, Security Agreement” and “Security Interest” have the meanings given in the PPSA
(b) the Customer acknowledges and agrees that by accepting these terms and conditions, which form part of the Agreement and constitute a Security Agreement that covers the Collateral for the purposes of the PPSA:
(i) the Repairer holds (as Secured Party) a Security Interest over all of the present and after acquired goods supplied by the Repairer to the Customer and any Proceeds of the sale of those goods (“Collateral”);
(ii) that any purchase by the Customer on credit terms from the Repairer or retention of title supply pursuant to clause 4 hereof will constitute a purchase money security interest as defined under Section 14 of the PPSA (“PMSI”);
(iii) the PMSI granted herein will continue to apply to any goods coming into existence or proceeds of sale of goods coming into existence;
(iv) the Repairer will continue to hold a Security Interest in the goods in accordance with and subject to the PPSA, notwithstanding that the goods maybe processed, commingled or become an accession with other goods;
(v) any Repairer Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all other registered or unregistered Security Interest;
(vi) until title in the goods passes to the Customer, the Customer will keep all goods supplied by the Repairer free and ensure all such goods are kept free of any charge, lien or Security Interest and not otherwise deal with the goods in a way that will or may prejudice any rights of the Repairer under the Agreement or the PPSA; and
(vii) in addition to any other rights under these terms and conditions, or otherwise arising, the Repairer may exercise any and or remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer to search for and seize, dispose of or retain those goods in respect to which the Customer has granted a Security Interest to the Repairer.
(c) The Customer undertakes to
(i) sign any further documents and provide such information which the Repairer may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
(ii) indemnify and upon demand reimburse the Repairer for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
(iii) not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of the Repairer;
(iv) the Repairer and the Customer agree that Sections 96, 125 and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under this Agreement;
(v) the Customer hereby waives its rights to receive notices under Sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA;
(vi) the Customer hereby waives its right as a Grantor and or a Debtor under Sections 142 and 143 of the PPSA;
(vii) the Customer waives its rights to receive a verification statement in accordance with Section 157 of the PPSA;
(viii) the Customer shall unconditionally ratify any actions taken by the Repairer under this clause;
(vx) this clause will survive the termination of the Agreement to the extent permitted by law;
7. Liability limitation and indemnity
To the extent the Trade Practices Act 1974 (Cth) (“TPA”) or similar state law applies to the 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 the Repairer 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, the Repairer’s liability to the Customer will be limited to, at the discretion of the Repairer, either:
(i) the re-supply of the goods or services; or
(ii) the cost of having the goods or services re-supplied.
Except as provided for in this Agreement, the Repairer 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 willful act of the Repairer its employees, agents or sub-contractors.
The Customer will be indemnify the Repairer against all claims and demands whatsoever by whom so ever made in respect of 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 willful act of the Repairer, its employees, agents or sub-contractors.
8. Sub-contracting and indemnity
Without reference to, or approval by, the Customer, the Repairer is entitled to subcontract on any terms the whole or part of the Works.
9. 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 the Repairer in this Agreement and in this regard the Repairer who is a party to this Agreement will be deemed to be acting as agent or trustee on behalf of all Repairers.
10. Force Majeure
If the Repairer 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 delay in obtaining governmental or quasi-governmental approvals, consent, 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 the Repairer will not be liable to the Customer.
11. Time bar
The Repairer 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 the Repairer or otherwise, unless such claim is made in writing within six (6) months of the earliest of the following occurring:
(i) the Works being completed; or
(ii) the Vessel leaving the care, custody or control of the Repairer.
12. Proper Law and Jurisdiction
All agreements made between the Repairer and the Customer shall be governed by, and construed in accordance with, the laws of the State of Victoria, Australia. The Customer agrees to submit to the nonexclusive jurisdiction of the Victorian Courts and Tribunals and Courts of appeal there from, for all purposes of or in connection with such Agreements.
13. Cost Recovery
Any expenses, costs or disbursements incurred by the Repairer in recovering any outstanding monies owing by the Customer including debt collection fees and lawyer’s costs shall be paid by the Customer providing that those fees do not exceed the scale charges as charged by that debt collecting agency or lawyer plus any out of pocket expenses.