It is the responsibility of the purchaser to ensure that the vessel is hull cleaned for accurate measurements to be taken by FAB Dock for the purpose of manufacturing the FAB Dock accurately. This may require, if requested by FAB Dock, the removal of the vessel from the water and professional cleaning of the vessel. FAB Dock does not take any responsibility for inaccurate measurements of vessels that have not been professionally cleaned and if required by FAB Dock extracted from the water.
2. ACCOUNT FEE
The Customer hereby agrees and acknowledges that at the absolute discretion of the Supplier, an account keeping fee of 2% per month will be levied on any or all amounts in default of the agreed trading terms.
3. ACCEPTANCE OF CUSTOMER’S ORDER
These terms and conditions apply to every order for goods (‘Order’) between the Supplier and the Customer and any terms and conditions of the customer’s Order deviating from or inconsistent with these terms and conditions are expressly excluded, obviated and rejected by the Supplier. This exclusion and rejection includes any statement by the Customer that the Customer’s terms and conditions shall prevail notwithstanding any stipulation by the Customer regarding the manner of declaring such rejection. A contract is only concluded between the Supplier and Customer for the supply of goods and/or services when the Order has been accepted by the Supplier. The terms of this Clause apply to every quotation or offer by the Supplier for the supply of goods and/or services.
All telephone orders are to be immediately confirmed in writing by the Customer. In the event that the confirmation varies from that recorded and processed by the Supplier, then the Supplier’s records shall prevail.
Upon the acceptance of the Customer’s order, a 50% deposit for Custom Made products and 100% for Universal Range products will be debited to the Customer’s account. Once the order has commenced, no return of, or cancellation will be accepted (see clause 6. Cancellation for more information).
4. CAVEATABLE INTEREST CLAUSE
In the event of Default of the agreed trading terms by the Customer, then the Customer by its Director(s)/ Proprietor(s)/ Partners/ Individual(s), nominated in this application hereby charge all their Right, Title of Interest (if any) to any or all property(ies) owned/partly owned. Acquired in the future, solely or jointly by the said Customer/ Director(s)/ Proprietor(s)/ Partners/ Individual(s) of this application in favour of the Supplier, to better secure all monies owed to the Supplier as of the date of the default, with the due and punctual observance and performance of all of the obligations of the Customer. Such Customer acknowledges that the Supplier may at its discretion, register a caveat on such property in respect of the interest conferred on it under this clause. In the event that the Supplier is required to exercise its right under this clause, against the Customer, then the Customer grants the Supplier the rights to appoint a Receiver and sell the property(ies).
5. RETENTION OF TITLE
Until all invoices are paid in full, and all monies receipted and cleared, ownership of the goods remains with the Supplier. The risk passes to the Customer upon delivery.
Delivery shall occur if the Supplier or its Agent delivers, on delivery, and/or if the Customer or its Agent(s) takes delivery, at that point of delivery. Until the Supplier is paid in full, the relationship of the Customer to the Supplier shall be fiduciary in respect of the goods and the Customer shall hold the goods as bailee only for the Supplier. The Customer shall store the goods separately from its own until ownership has manifested in the Customer. Should the goods be on-sold to a third party before payment, or in the event of the Appointment of an Administrator, Controller, Managing Controller, Receiver or Receiver Manager, or entry into an Informal/Formal Deed of Arrangement under the Bankruptcy Act 1966 (Cth) by the Customer, then the Customer hereby assigns to the Supplier its right of recovered of payment from the third party. The money(ies) resulting from the sale of goods are to be specifically earmarked and placed in a separate account on trust for the Supplier, until payment in full is made to the Supplier for the cost of the goods only, to guarantee clear passage of ownership to the third-party innocent purchaser.
In the event that the Customer is in default of the agreed trading terms, then the Customer will, without reservation, grant right of entry to any or all properties under the Customer’s control, where the goods are reasonably expected to be stored. The Customer indemnifies and saves harmless the Supplier, its servants or agents in relation to loss or damage as a result of the retaking of possession of the said goods, the Customer grants power of sale to the Supplier to resell the goods and the Customer acknowledges that any shortfall owing after the said goods are resold will be the responsibility of the Customer.
The risk in the goods sold passes to the Customer on delivery.
The Supplier does not provide credit to the Customer under any circumstance. The Supplier may recover the purchase price of the goods sold to the Customer by legal proceedings and may file an application for the appointment of a liquidator to the Customer notwithstanding that property in the goods has not been passed to the Customer.
To protect the Suppliers security interest in the Products until payment, the supplier may choose to register this agreement under the Personal Properties Securities Act 2009. The customer agrees to do all things necessary to facilitate such registration.
The Customer agrees to sign documents or do all things necessary to perfect the rights of the Supplier under the agreement and hereby appoints the Supplier as their attorney to sign any document or do anything that may reasonably be required to enforce the rights of the Company on default.
6. DELIVERY & INSTALLATION
Deliveries shall be made during normal working hours (9:00 am to 5:00 pm, Monday to Friday inclusive). Deliveries required outside normal working hours will be delivered on request of the Customer, and all charges will be the sole responsibility of the Customer. In the event that the Customer or the Customer’s Agent is not on site to accept the delivery, then the driver’s signature denoting the time, date and place of delivery, shall be deemed to be acceptance of the said delivery whether by the Supplier or the Supplier’s agent. The date of delivery set forth in the order form is made in good faith, but the performance of the supplier’s engagement is subject to industrial disturbances, delays in transit, damage to goods in transit, shortage of goods and any other cause beyond reasonable control of the Supplier. The Supplier shall be excused from failure to deliver or complete, which is contributed to by any such cause, and the time specified for completion of delivery shall be extended commensurately. Delay in delivery or completion shall not constitute a breach of contract, nor shall it affect any other provisions of the contract to the Supplier’s disadvantage.
The Customer at all times is responsible to ensure suitable access to the site. The Customer further indemnifies and saves harmless the Supplier, and or its servants or agents, against any loss or damage, in the event that the Customer fails to provide suitable access to site for delivery, and/or whilst on-site working.
In the event, the Customer installs the FAB Dock at the Customers cost, rather than have FAB Dock or their agent undertake the installation, FAB Dock holds no responsibility, negligence or liability for the installation and relies on the indemnities in these terms and conditions.
7. SERVICE OF DOCUMENTS
The Customer acknowledges that service of all documents will be prepaid postal addressed envelope to the address nominated on the Commercial order form, unless a new address is provided by the Customer and such new address is acknowledged by return in writing from the supplier. Note the Customer expressly acknowledges that service is deemed to be affected after the expiration of 2 working days from date of posting of the documents.
All goods are sold at the price current and notified at or before the time of delivery.
All prices are inclusive of delivery/freight charges to Australian capital cities -remote and overseas locations may attract an additional charge at the supplier’s discretion. The Supplier may invoice the goods sold at the Supplier’s price relevant to the goods ordered at the date of delivery of each Order. Where the Supplier publishes, or discloses a price list, this list is an invitation to treat only and the Supplier reserves the right to accept or reject in its absolute unfettered discretion any Order which may be received by it.
The Customer acknowledges that the price of the goods and services may change from time to time without notice and it is the Customer’s responsibility to confirm the price at the time the Order is placed. The Customer is otherwise taken to have accepted the price that is applicable at the time as shown on the Quotation or Tax Invoice issued by the Supplier.
Where the Customer varies the Order in any way whatsoever resulting in the supply of further goods and/or the provision of further services and/or the incurring of further expenses on the part of the Supplier, the Customer shall be charged a fee in addition to the initial quoted or invoiced fee, such fee to be calculated at the Supplier’s standard fees for the time being.
Where the Supplier provides a quotation to the Customer, the quotation shall be exercisable for one (1) calendar month unless otherwise stipulated in writing.
Unless otherwise agreed in writing, the Customer agrees to and will pay in accordance with the tax invoice rendered by the Supplier namely by:
Custom Designed Products:
- payment of a 50% deposit payable on order prior to delivery of the goods and;
- payment of a 50% balance on delivery.
Universal Range Products:
- payment of 100% payable upon order
Interest is payable by the Customer, immediately on demand by the Supplier, on all amounts overdue to the Supplier from the date of delivery until payment at the rate of twelve (12) per centum per annum, however all interest charges will be waived by the Supplier in the event that payment is made to the Supplier within the time stipulated by the Supplier. Where payment is not made by the due date, the Customer shall, in addition to any other obligations imposed hereunder, pay to the Supplier on demand, all costs of the Supplier (including but not limited to storage, delivery, collection, obsolescence and legal costs on a full indemnity basis).
Time of payment for any goods and/or services under any Order provided to the Customer is an essential term of any Order between the Supplier and the Customer.
No return of goods will be accepted without prior approval of the Supplier in writing. In the event that the Supplier agrees to the return of goods or to a cancellation of goods on order, the Supplier at its absolute discretion reserves the right to charge a fee being 50% of the agreed purchase price
The Supplier is not obliged to supply goods in relation to any Order and may cancel the Order at any time if:
- there is a breach of any term of any Order between the Supplier and the Customer; or
- the Customer has provided any false or misleading information to the Supplier including information set out in any application for credit or to open an account with the Supplier; or
- the Customer commences to be wound up or is placed under official management, or a receiver, or a receiver and manager or voluntary administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrance by itself or by an agent, takes or purports to take possession of the Customer’s undertaking or property or any part thereof; or
- The Supplier is unable to supply goods as a result of the failure of any supplier of the Supplier to deliver goods or provide services, which are required in order for the Supplier to supply the goods to the Customer.
11. CATALOGUE/WEBSITE AND EXAMPLES
The Customer acknowledges, agrees and accepts that there may be variations in the colour and/or finish and/or texture of any actual products supplied to the Customer:
- from those as appearing in the Supplier’s catalogue;
- from those as appearing in the Supplier’s advertising material
- from those as appearing in the Supplier’s website; or
- from any samples held by the Supplier.
12. INTELLECTUAL PROPERTY
All intellectual property rights, such as trademarks, copyright and designs, subsisting in goods supplied to, or produced for, the Customer, unless agreed otherwise in writing by us, remains at all times the property of the Supplier.
13. FORCE MAJEURE
If delivery is prevented or delayed, in part or all, by reason of Act of God, or the consequence thereof including but not limited to fire, flood, typhoon, earthquakes or by reason of riots, wars, hostilities, government restrictions, trade embargoes, strikes, lockouts, labour disputes, boycotting of goods, ship shortage, manufacturer’s bankruptcy, delays or damage in transportation or other causes beyond the Supplier’s control, the Supplier may, at its option, perform the Order, or the unfulfilled portion thereof, within a reasonable time from the removal of the cause preventing or delaying performance, or rescind unconditionally and without liability this contract or the unfulfilled portion thereof.
The Supplier is required by law to pay Goods and Services Tax (“GST”) on any work, the subject of this estimate/quote. All amounts expressed or described in any Order between the Customer and Supplier are GST exclusive amounts unless express stated otherwise. GST will be charged by the Supplier to the Customer in addition to the estimate/quote provided.
Goods produced and sold will have the benefit of any warranty, as may be provided from time to time, given by the Supplier or as required at law, provided that the return of the goods or any part of them is in accordance with the Supplier’s warranty; but subject any statutory law to the contrary the Supplier shall not be liable for any loss or damage either direct or consequential arising out of any defects arising from the design and use of the goods.
The Supplier guarantees the materials and workmanship of equipment supplied in the periods stated in the “Warranty Terms and Conditions” attached hereto.
The warranty excludes those components supplied by other Suppliers, damage caused by neglect or misuse of materials supplied, labour costs associated with installation or removal of defective products, corrosion cause by chemicals, e.g. cleaning acids. Damage or deterioration by water due to excessive hosing or operator abuse is expressly excluded from Warranty.
The Supplier will not accept goods returned for warranty work, unless the freight is prepaid by the Customer. The Supplier will return the goods at the Supplier’s cost.
The Supplier shall not be liable for any amount greater than the sales price of the product originally supplied. Without limiting the meaning of this clause, the Supplier shall not be liable for any claims, loss, expense whatsoever, how so ever arising, or in any event in any way whatsoever for any contingent, consequential direct/indirect special, or punitive damages arising in relation thereto, and the Customer acknowledges this express limit or liability and agrees to limit any claim accordingly. Further, the Supplier shall not be responsible directly or indirectly for any consequential loss or maintenance, use or operation of the product by the Customer, negligence, or to any third party, or from any failure of the product whether defective or not.
17. EXCLUSIONS AND LIMITATIONS
ENVIRONMENTAL REQUIREMENTS: The Customer confirms and acknowledges it has made all inquiries in relation to all responsibilities on conferred upon the Customer, by the said Act, relating to storage of and disposal of any or all products supplied by the Supplier.
INSURANCE: The Customer acknowledges that insurance of all goods are the responsibility of the Customer at the point of delivery. No insurance is provided by the Supplier.
All modifications and amendments to these provisions or any approvals here-under shall be in writing by a duly authorized signatory of the Supplier, and if otherwise, shall not be binding upon the Supplier.
All contracts between the Supplier and the Customer shall be governed by the laws of the State of Queensland and the parties shall submit to the non-exclusive jurisdiction of the courts of the State of Queensland (and any courts which can hear appeals from such courts).