This
document sets out the entire terms and conditions relating
to the provision of Works by MTQ Engine Systems (Aust) Pty
Ltd or on behalf of the Customer.
2.
Interpretation
In
these terms and conditions:“Customer” includes
the person, firm, body corporate, association or unincorporated
association (or any agent of any such entity) who requests
MTQ Engine Systems (Aust) Pty Ltd to carry out Works for
it or on its behalf.
“ Prescribed Terms” means the terms, conditions and warranties implied
by law into contracts for the supply of goods and services which cannot be excluded,
restricted or modified by agreement.
“ Repairer” means MTQ Engine Systems (Aust) Pty Ltd.
“ Works” means all works carried out by the Repairer pursuant to
these terms and conditions for and on behalf of the Customer including, without
limitation, all parts, units, components, attachments, accessories, repairs,
maintenance, improvements, supply of labour and specialised tools.
3.
Works Authorisation
3.1 By
requesting the Repairer to carry out the Works, the Customer
authorises the Repairer to do all acts and things that are
in the opinion of the Repairer necessary or desirable to
carry out and complete the Works including, without limitation.
(a)
To remove from the vessel any machinery, part or device.
3.2 The
Customer warrants to the Repairer that it has the authority
to request the Repairer to carry out the Works.
3.3 Where
the Customer is acting as an agent in requesting the Works,
then the Customer agrees to be jointly and severally liable
with its principal for all amounts payable to the Repairer
arising out of the works and payable pursuant to these terms
and conditions.
3.4 Quotes
for any Works by the Repairer are valid for the period stated
in that quote unless otherwise advised by the Repairer in writing.
3.5 For
overseas customers, prices or rates quoted are in Australian
dollars unless stated otherwise and exclusive of all taxes, duties
or charges imposed by any government, statutory authority or
agency. For Australian customers, Prices are inclusive of GST.
3.6 The Customer cannot withdraw a request for the Works to
be done or call for the Works to cease before completion unless the
Repairer otherwise agrees in writing.
4.
Dockyard Works
Unless
the Repairer otherwise agrees in writing, where Works are
to be carried out on a vessel or any machinery, part or device
on or about the vessel at a dockyard, slipway, wharf, jetty
or any other place, the Customer authorises the Repairer
to remove from the vessel any part, component the Repairer
deems necessary.
5.
Payment
5.1 The
Customer agrees to pay the full invoiced price, plus all
other amounts payable to the Repairer under these terms and
conditions, relating to or arising out of the Works for the
Customer, after which (but not before) the vessel or other
goods upon which the Works have been carried out will be
available for collection by the Customer.
5.2 Unless otherwise agreed in writing by the Repairer,
if the Customer fails to pay the full invoiced price of the Works
within the period stated on the Repairer’s invoice, the Customer
shall be liable to pay interest on that amount at a rate equal to
the benchmark rate quoted by National Australia Bank Limited from
time to time plus 2% calculated on a daily basis from its due date
for payment until the amount outstanding (plus interest) has been
paid in full.
5.3 Before
making payment, the Customer must inspect
the works and satisfy itself that the Works
have been carried out in a proper and satisfactory
manner. By making payment, the Customer
is taken to have accepted that the Works
have been carried out in proper and satisfactory
manner.
5.4 The Turbocharger or other goods upon which the works
have been carried out must be collected from the Repairer’s
work site within 30days days after the invoice date or in accordance
with other written notification by the Repairer to the Customer.
5.5 If
the vessel or goods are not collected in accordance with clause
5.4, then at the Repairer’s option:
(a)
The Repairer may charge the Customer for storage costs at the
bank overdraft rate current at that time(%) of the invoiced
price of the Works for each day that the vessel or goods remains
uncollected;
or
(b)
The Repairer may charge the Customer for storage costs at the
bank overdraft rate current at that time(%) of the invoiced
price of the Works for each day that the vessel or goods remains
uncollected;
or
(c)
Upon notice in writing to the Customer, the Repairer may cancel
the contract and charge a cancellation fee of up to but not
to exceed 75% of the invoiced price of the Works, or both.
5.6 Any
works completion date quoted by the Repairer is an estimate
only and the Repairer shall not be liable for any failure to
complete the Works by that date.
5.7 All
parts or components sourced from overseas suppliers are subject
to exchange rate variations at the time of payment in full
unless otherwise agreed to.
6.
Lien
In
addition to any workman’s or repairer’s lien which
the Repairer may have over the vessel or other goods on which
the Works have been carried out, the Repairer shall have a
general lien over that vessel or other goods and all other
property of the Customer that comes into the possession of
the Repairer for any reason until all amounts owing by the
Customer or owner of those assets to the Repairer on any account
whatsoever have been paid to the Repairer.
7.
Limitation of Liability
7.1 Where
the Customer is a “consumer” as defined by any
relevant law such as the Trade Practices Act 1974 (as amended)
or similar State laws, then certain terms and rights (the Prescribed
Terms) will be implied into these Terms and Conditions for
the benefit of the consumer, which terms and rights and any
liability of the Repairer flowing from them cannot be excluded,
rescinded or modified by any provision of these Terms and Conditions.
7.2 Except
for the Prescribed Terms, any terms, conditions or warranties
not expressly stated in these terms and conditions do not form
part of any contract between the Repairer and the Customer
regarding the Works.
7.3 Subject
to the Prescribed Terms, the liability of the Repairer for
any breach of any Prescribed Term shall be limited to, at the
option of the Repairer:
(a)
the replacement of the goods or the supply of equivalent goods;
(b)
the repair of the goods;
(c)
the payment of the cost of replacing the goods or of acquiring
equivalent goods;
(d)
the payment of the cost of repairing the goods;
(e)
the supply of the services again; or
(f)
the payment of the cost of having the services supplied again,
unless
the Customer establishes that it is not fair and reasonable
for the Repairer to rely on this term.
7.4 Except
as provided in these terms and conditions, the Repairer shall
not in any circumstances be liable in contract, tort, negligence
or otherwise for any loss or damage (including consequential,
indirect, special or economic loss or damage) which arises
out of or in connection with the Works including, without limitation,
any negligent act or omission on the part of the Repairer or
any employee, agent or sub-contractor of the Repairer.
7.5 The
Customer indemnifies the Repairer for any liability in contract,
tort, negligence or otherwise incurred by the Repairer to any
third person which arises out of or in connection with the
Works including, without limitation, any negligent act or omission
on the part of the Repairer or any employee, agent or sub-contractor
of the Repairer.
8.
Force Majeure
If
the Repairer by reason of any matter beyond its control including,
without limitation, any act of God, strike, lock-out or other
interference with work, war (declared or undeclared), blockade,
disturbance, lightning, fire, earthquake, storm, flood, explosion,
governmental or quasi-governmental restraint, expropriation,
prohibition, intervention, embargo, unavailability or delay
in availability of supplies, equipment or transport, refusal
of or delay in obtaining governmental or quasi-governmental
approvals, consents, permits, licences, authorities or allocations
is unable to perform in whole or in part any obligation under
these Terms and Conditions, the Repairer shall be relieved
of that obligation under these Terms and Conditions to the
extent and for the period that it is not reasonably able
to perform and shall not in any way be liable to the Customer
in respect of such inability.
9.
Sub-Contracting and Indemnity
9.1 The
Repairer shall be entitled to sub-contract on any terms the
whole or any part of the Works and any and all acts or things
that are in the opinion of the Repairer necessary or desirable
to carry out and complete the Works.
9.2 The Customer undertakes
that no claim or allegation shall be made against
any person whomsoever the works is performed
or undertaken (including all sub-contractors
of the Repairer), other than the Repairer,
which imposes or attempts to impose upon any
such person any liability whatsoever in connection
with the Works, whether or not arising out
of negligence on the part of such person and,
if any such claim or allegation should nevertheless
be made, to indemnify the Repairer against
all consequences thereof.
10.
Liability of Employees, Agents and Contractors
It
is hereby expressly agreed that every exemption from liability
and every right, defence and immunity of whatsoever nature
applicable to the Repairer or to which the Repairer is entitled
hereunder shall also be available and shall extend to protect
every Repairer or agent of the Repairer (including every
independent contractor from time to time employed by the
Repairer) while acting in the course of or in connection
with his employment or engagement, the Repairer is or shall
be deemed to be acting as an agent or trustee on behalf of
and for the benefit of all persons who are or might be employees
or agents from time to time (including any independent contractors
or subcontractors as aforesaid) and all such persons shall
to this extent be or be deemed to be parties to the contract
entered into by the Repairer.
11.
General
11.1 If
a provision of these Terms and Conditions is void or unenforceable
then that provision shall be severed and these terms and
conditions shall be read as if that provision did not form
part of it.
11.2 No
attempted or purported variation of these Terms and Conditions
(including, without limitation, any Customer purchase order)
shall be effective, even if the Repairer subsequently issues
an invoice or carries out the works.
11.3 A
failure by the Repairer to exercise any rights or remedies
under these Terms and Conditions is not a waiver of those rights
or remedies unless the Repairer gives clear and express written
notification of such waiver.
11.4 No
employee, agent or sub-contractor or other associated person
of the Repairer has authority to vary these Terms and Conditions.
11.5 These
terms and conditions are governed by and shall be construed
in accordance with the law of the state or territory of incorporation
of the Repairer (if a corporation) or otherwise the Repairers
principal place of business.
11.6 The
Repairer and the Customer irrevocably and unconditionally submit
to the non-exclusive jurisdiction of the courts of the state
or territory referred to in clause 11.5 and courts of appeal
from them for determining any dispute in relation to this contract.
The Customer waives any right it has or may have to object
that those courts are an inconvenient forum or that they do
not have jurisdiction to hear and determine any dispute in
relation to this contract.
MTQF
-055 3/03 |
