In this Agreement the following words have the following meanings:
Acceptance Period means:
Agreement means the Quotation and these terms and conditions.
Approached Customer means a Customer that has entered into this Agreement after being approached to do so by email, telemarketing or similar means.
Approvals means any development, environmental, planning or other approval, notice, consent or licence from any Government Authority or under any Law in respect of the Works.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Completion means the date that Marine Structures notifies the Customer that the Works are complete.
Covid-19 Pandemic means the Covid-19 coronavirus pandemic as established by the World Health Organisation, and includes all regulations, sanctions, travel restrictions, forced closures, lockdowns, self- isolation, quarantine or other pandemic protocols, directions or unforeseen circumstances imposed by any government authority in respect of or in connection to the Covid-19 coronavirus pandemic.
Claim means any claim, cause of action, Liability, demand, action, remedy, suit, injury, indemnity, damage, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise whether present, unascertained, immediate, future or contingent.
Consequential Loss means without limitation one or more of loss of bargain, loss of revenue, loss of reputation, indirect loss, loss of profits, consequential loss, loss of actual or anticipated savings, lost opportunities, including opportunities to enter into arrangements with third parties and loss or damage in connection with claims against the Customer by third parties.
Customer means the customer identified in the Quotation.
Customer Works means works and other matters to be completed by the Customer or its contractors (otherthan Marine Structures) (at the Customer’s cost) prior to the Commencement Date, as identified in the Quotation or anywhere else in this Agreement or as notified to the Customer by Marine Structures.
Deposit means the amount described as such in the Quotation.
Event of Default means:
Exclusions means the Customer Works and any other works not specifically included within the Works described in the Quotation.
Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes without limitation an act of God or a disaster (whether natural or man-made) including fire, flood, lightning or earthquake; riot, civil commotion, act of public enemies, national emergency (whether in fact or in Law) or government declaration or direction; epidemic, pandemic (including the Covid-19 Pandemic) or quarantine restriction; supply shortage or strike, lock out, stoppage, labour dispute or shortage including industrial disputes involving Marine Structures’ suppliers.
Goods means the goods to be supplied and installed by Marine Structures to the Customer in connection with the Works as described on the Quotation.
Government Authority includes a government or government department or other body (including the local council), judicial person or a person who is charged with the administration of a Law.
GST Act means A New Tax System (Goods and Services) Tax Act 1999 (Cth).
Guarantee means the deed of guarantee and indemnity set out in Annexure A.
Guarantor means the party identified in the Quotation.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, layouts, trade marks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Inspection means a visual inspection of the Site which may be carried out by Marine Structures (at Marine Structures’ discretion) prior to the commencement of the Works but excludes:
Insolvency Event means the occurrence of any one or more of the following events in relation to any party:
Latent Conditions means any physical condition of, underlying to or adjacent to the Site that could not reasonably be identified during the Inspection or from information provided by the Customer to Marine Structures prior to the Quotation being prepared and may include (but is not limited to);
Law includes any law, whether statute or common law (including the laws of negligence and nuisance and principles of equity), ordinance, regulation, by-law, order or other determination of any government authority or statutory authority and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them.
Liability means any liability, loss, damage, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) or obligation however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Material Affect means a change in circumstances which in the professional judgment of Marine Structures requires an increase in the Price over and above the Price.
Payment Terms means the amounts and timing of payment of the Price as set out in the Quotation.
Personnel means the Supplier’s employees, agents, consultants, subcontractors, invitees and their respective employees, agents, consultants, contractors and invitees.
PMSI means a purchase money security interest as defined under the PPSA.
PPSA means the Personal Property and Securities Act 2019 (Cth).
Price means the amount stipulated in the Quotation.
Progress Instalment means each payment instalment of the Price as required pursuant to the Payment Terms.
Services means the services supplied by Marine Structures to the Customer as identified as ‘Nature of the Works’ in the Quotation.
Site means the address identified on the Quotation as the ‘Site Address’.
Sunset Date means the date that is six (6) months after the Commencement Date.
Marine Structures means The Marina Specialist Pty Ltd ACN 010 633 119 trading as Marine Structures.
Tax Invoice has the meaning given to the term ‘tax invoice’ in the GST Act.
Term means the period from the Commencement Date until Completion.
Quotation means the quotation for the Works provided by Marine Structures to the Customer and annexed to these terms and conditions.
Works means the nature of the works identified in the Quotation
2.1
This Agreement is between Marine Structures and the Customer.
2.2
On acceptance of the Quotation pursuant to clause 3.3 below, the Customer agrees to be bound by the terms of this Agreement.
3.1
Despite anything to the contrary in this Agreement, Marine Structures may withdraw the Quotation at any time during the Acceptance Period.
3.2
Unless previously withdrawn by Marine Structures in writing to the Customer, the Quotation remains open for acceptance by the Customer during the Acceptance Period.
3.3
To accept the Quotation, the Customer must sign this Agreement and return the signed Agreement to Marine Structures.
3.4
If the Quotation is:
the Quotation will lapse and will no longer be binding on Marine Structures.
3.5
Once the Customer has accepted the Quotation in accordance with clause 3.3 above, the Customer may not cancel or seek to vary the Works or other conditions contained in the Quotation or this Agreement:
If the Customer is an Approached Customer, the Customer may cancel the Agreement within ten (10) business days from and including the day after acceptance. If the Customer cancels the Agreement during the Cooling Off Period, Marine Structures will refund in full all amounts paid by the Customer up to and including the date of cancellation.
5.1
General obligations
The Customer must:
5.2
Site access
If the Customer or its employees, agent or invitees (as applicable) do not comply with one or more of the conditions in clause 5.1 above then without limiting Marine Structures’ other rights under this Agreement or at Law:
5.3
Trade-in
6.1
The Customer must undertake the Customer Works (at their cost) in accordance with clause 5.1(b) of this Agreement.
6.2
The Customer is solely responsible for all risks and costs relating to, arising from or in connection with the Customer Works.
6.3
Marine Structures makes no warranty in respect of the condition or suitability of the Customer Works and is not liable in respect of or in connection with the Customer Works.
6.4
The Customer indemnifies Marine Structures from all Claims and Liability suffered or incurred arising from or in connection with the Customer Works (including but not limited to their suitability, condition, effectiveness and safety).
7.1
Payment
7.2
Deposit
On acceptance in accordance with clause 3.3 above, the Customer must pay the Deposit to Marine Structures in accordance with this Agreement.
7.3
Payment Method
7.4
Overdue amounts
7.5
Deferral of performance
If the Customer does not pay a Progress Instalment as and when it is due in accordance with the Payment Terms, then without limiting any other remedies available to Marine Structures, Marine Structures may suspend performance of the Works until the outstanding Progress Instalment is paid.
8.1
Second Hand Goods
8.2
Customer Warranties
The Customer warrants that:
8.3
Acknowledgment
Marine Structures is relying on the representations and warranties of the Customer under clause 8.2 in entering into this Agreement.
8.4
Defects
9.1
The obligation of Marine Structures to manufacture and install the Goods and undertake the Works is subject to all necessary Approvals being granted.
9.2
Marine Structures is under no obligation to commence the Works or install the Goods until the Approvals have been granted.
9.3
Without limiting clause 9.2 above, if:
then the Customer:
9.4
The costs associated with the Approvals (including but not limited to all costs to prepare the applications and supporting documents, plans and drawings, application, lodgement and approval fees and associated costs) are payable by the Customer in addition to the Price.
9.5
Subject to clauses 9.9, 9.10 and 9.11 below, where Marine Structures elects to do so (in its discretion) by notice to the Customer Marine Structures will coordinate and manage the process for obtaining all necessary Approvals at the Customer’s cost limited to:
9.6
If it becomes necessary during the course of undertaking the Works for Marine Structures to make any application for any additional Approval in order to lawfully install the Goods and undertake the Works, the Customer authorises Marine Structures to make such application at theCustomer’s cost. All application fees and related costs incurred by Marine Structures will be payable by the Customer in addition to the Price.
9.7
If the required Approvals are refused, or if in the reasonable opinion of Marine Structures are unlikely to be approved within a reasonable time, Marine Structures may terminate this Agreement by notice to the Customer, in which event:
9.8
Despite clause 9.1 above:
9.9
If the Customer elects to procure the necessary Approvals themselves it must notify Marine Structures of this election on or before the Commencement Date.
9.10
the Customer must (at its cost) do all things necessary to promptly apply for, make, prosecute and procure the Approvals as soon as reasonably practicable after the Commencement Date.
9.11
Where clause 9.5 applies, the Customer must:
9.12
The Customer releases and indemnifies Marine Structures against all Claims which may be taken or made against Marine Structures in the course of or arising out of the performance or exercise of the powers and authorities of Marine Structures pursuant to this clause 9.
10.1
Estimated Completion Date
10.2
Consequences of delays
During the Term, the Customer must keep and maintain adequate insurance to cover any loss or damage to the Site from any cause.
12.1
The Site and any property on or in the Site (including the Goods) remain entirely at the Customer’s risk.
12.2
The Goods remain the property of Marine Structures, and ownership in the Goods only passes to the Customer once the Price is paid in full.
12.3
Until ownership of the Goods passes to the Customer in accordance with clause 12.2 above, the Customer must:
12.4
Without limiting any other right Marine Structures may have, if the Customer does not pay the Price in accordance with this Agreement, Marine Structures or any agent of Marine Structures may (as the Customer’s invitee) enter onto the Site (or any land or premises where the Goods are situated) and retake possession of the Goods (at the Customer’s cost).
12.5
The Customer releases and indemnifies Marine Structures in relation to all Claims or Liability suffered or incurred arising from or in connection with Marine Structures exercising its rights under this clause 12.
13.1
Exclusions
13.2
Liability limited to Price or re-performance
13.3
Consequential loss
To the extent permitted by Law, Marine Structures is not liable for any Consequential Loss however caused (including by the reckless or negligent act or omission of Marine Structures, the Personnel), suffered or incurred by the Customer in connection with this Agreement.
13.4
Seriousness or nature
For clarity, and without limiting clauses 13.2 or 13.3 above, the parties agree that clauses 13.2 or 13.3 apply in connection with a breach of this Agreement, anticipated breach of this Agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
13.5
Application to indemnities
The limitations and exclusions of liability in this clause 13 apply to any Liability of Marine Structures under any indemnity given by Marine Structures pursuant to this Agreement.
14.1
Definitions
Words and phrases used in this clause that have defined meanings in the PPSA have the corresponding meaning given to them in the PPSA.
14.2
Security for performance
to secure the performance of the Customer’s obligations (including payment of the Price and compliance with the warranties and indemnities given by the Customer) under this Agreement.
14.3
Discharge
14.4
Statements under the PPSA
Marine Structures is not required to give any notice, and the Customer waives their right to receive any notice, under the PPSA (including notice of a verification statement or financing change statement) unless the notice is required by the PPSA to be given (even though the parties have waived the right to receive notice).
15.1
Neither party will be in breach of this Agreement or liable for any failure or delay in the performance of its obligations under this Agreement (other than a payment obligation) to the extent that the failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the other party.
15.2
If this Agreement is no longer capable of being performed within a reasonable time after the Commencement Date due to a Force Majeure event or otherwise:
16.1
No obligation to vary
In no circumstances is Marine Structures obliged to depart from the Works except as provided for under the terms of this Agreement.
16.2
Variation procedure
16.3
Fee adjustments for variations
If the Customer notifies Marine Structures of its Acceptance of the Variation Price, the scope and specification of Works will be varied accordingly and the Price will be adjusted as follows:
16.4
Latent Conditions treated as variations
16.5
Changes to the cost of materials
If the cost of the raw materials (‘Materials’) required to complete the Works increase as a direct consequence of changes in economic or market conditions outside the control of Marine Structures, Marine Structures may pass that additional cost on to the Customer (in addition to the Purchase Price) and the Customer must pay those additional costs, provided Marine Structures first provides the Customer with:
16.6
Additional costs borne by the Customer
The Customer must pay (without limitation) to Marine Structures in addition to the Price, on demand or otherwise in accordance with this Agreement:
17.1
Informal dispute resolution
17.2
Referring Dispute to mediation
then the parties must mediate the Dispute in accordance with the mediation rules of the Australian Commercial Disputes Centre in Sydney, with the mediator to be selected and the mediation organised by the Australian Commercial Disputes Centre or a similar organisation agreed to by all parties.
17.3
Costs
The parties must bear their own costs of dealing with any Dispute and the costs of any expert or mediator will be borne equally by the parties in Dispute.
18.1
Interpretation
Any words capitalised in this clause 18 and not already defined in this Agreement have the meaning given to those words in the GST Act.
18.2
Taxable supply
18.3
Progressive or Periodic Supply
Where a Supply made under or in connection with this Agreement is a Progressive or Periodic Supply, clause 18.2 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
19.1
Marine Structures termination
19.2
Customer termination
The Customer may terminate this Agreement by one months’ written notice to Marine Structures if Marine Structures:
19.3
Termination if Approvals are not obtained
19.4
Payments upon termination
If this Agreement be terminated prior to Completion and without limiting Marine Structures’ other remedies at Law, the Customer agrees to pay Marine Structures a pro rata amount of the Price reflective of the Work completed by Marine Structures up to and including the time of termination.
19.5
Effect of termination
On termination of this Agreement accrued rights or remedies of a party are not affected.
19.6
Survival
Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
20.1
Where the Customer is a corporation (other than a corporation listed on the Australian Stock Exchange), the Customer must cause all of its directors to sign the Guarantee at the same time the Customer signs this Agreement.
20.2
Marine Structures may terminate this Agreement by giving written notice to the Customer if the Customer fails to comply with clause 20.1 above.
This Agreement is governed by the laws of Queensland.
1.1
In this Deed, the following words have the following meanings:
Customer means [Insert].
Agreement means the works and services agreement dated on or about the date of this Deed between the Customer and the Supplier of which this Deed forms Annexure A.
Guarantor means the following individuals, jointly and severally:
(a) Name [Director 1]: Address:
(b) Name [Director 2]: Address:
(c) Name [Director 3]: Address:
(d) Name [Director 4]: Address:
Supplier means The Marina Specialist Pty Ltd ACN 010 633 119 trading as Marine Structures.
1.2
Words and phrases defined in the Agreement have the same meaning when used in this Deed, unless the contrary intention appears.
The Guarantor has requested the Customer enter into the Agreement with the Supplier and the Supplier does so in consideration of the Guarantor giving this guarantee and indemnity by signing this Deed.
The Guarantor guarantees to the Supplier the prompt performance of all of the obligations of the Customer contained or implied in the Agreement. If the obligation is to pay money, the Supplier may recover the money from the Guarantor as a liquidated debt.
In addition to the Guarantor’s liability under clause 3 of this Deed, the Guarantor indemnifies the Supplier against all Claims or Liability suffered or incurred because the Customer is not bound by some or all of its obligations under the Agreement.
The Guarantee is a continuing guarantee and indemnity and is irrevocable and remains in full force and effect until the obligations of the Customer and/or Guarantor under this Agreement have been fully satisfied.
7.1
This Guarantee is in addition to and not in substitution for any other rights which may exist under or by virtue of this Agreement and may be enforced against the Guarantor without first having recourse to any such rights and without taking any steps or proceedings against the Guarantor.
7.2
This Guarantee shall not prejudicially affect or be prejudicially affected by any security or Guarantee held at any time by the Supplier for any money for the time being owing pursuant to this Agreement, but such security shall be deemed to be collateral and the Guarantor shall not as against the Supplier in any way claim the benefit or seek the transfer of any security wholly or partially.
The Supplier and the Guarantor acknowledge and agree that if the Guarantor rectifies any default or makes good any Liability suffered by the Supplier by reason of any breach of, or failure by the Customer to perform any covenant, term or condition of this Agreement, the Guarantor shall, if the Guarantor so desires and on written notice to the Supplier be subrogated to the rights of the Customer to the exclusion of the Customer.
Where there is more than one Guarantor then the obligations of those so named are joint and several.
The Guarantor’s liability is not discharged by a payment to the Supplier which is later avoided by Law. If that happens, the Supplier, the Customer and the Guarantor will be restored to their respective rights and obligations as if the payment had not been made.
If a liquidator or trustee in bankruptcy disclaims the Agreement, the Guarantor indemnifies the Supplier against any resulting Liability.
12.1
The Guarantor charges its interest in all of its property (including its real property) with the Guarantor’s obligations and indemnities given by it, under this Deed.
12.2
For the purposes of the PPSA, this Deed constitutes a security agreement under which the Guarantor grants a Security Interest in all of the Guarantor’s present and after-acquired property to the Supplier to secure the performance of the Guarantor’s obligations under this Deed.
About
Marine Structures is Australia’s market leader in marine infrastructure and berthing systems for commercial and residential use. Committed to innovation and excellence, we provide a comprehensive design and construction service, specializing in engineering, manufacture, and installation of quality marine structures.
Contact
North
18 Ron Parkinson Crescent,
Bells Creek, QLD 4551
South
20 Demand Avenue,
Arundel, QLD 4214
ABN: 32 010 633 119
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Marinas
Residential
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