1. Purpose

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