Terms & Conditions
TERMS AND CONDITIONS OF BUSINESS
SHIPSHAPE MARINE SURVEYING
ABN: 61 591 926 099
The following expressions shall have the following meanings:
1.1 “Surveyor” means Mark Robertson, Principle surveyor for
Shipshape Marine Surveying, 8 George St, Balmain, NSW 2041, Australia.
1.2 “Client” means any person who instructs the Surveyor to provide the Services;
1.3 “Inspection” means the inspection undertaken for the purpose of preparing the Report;
1.4 “Report” means the survey report produced as a result of the Inspection;
1.5 “Vessel” means the boat or related structures to be inspected by the Surveyor and reported on to the Client;
1.6 “Application Form” means the document completed by the Client instructing the Surveyor to inspect the Vessel and prepare the Report;
1.7 “Date of Instruction” means the date the Services commence as stated in the Application Form;
1.8 “Valuation” means a value ascertained assuming a willing buyer and seller and market conditions applicable at the time of valuation;
1.9 “Services” means the surveying services as described in the Application Form and in these Terms and Conditions;
1.10 “Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Surveyor;
1.11 “Agreement” means the contract between the Surveyor and the Client for the provision of the Services incorporating these Terms and Conditions.
2.1 These Terms and Conditions shall apply to the Agreement for the supply of Services by the Surveyor to the Client and shall supersede any other documentation or communication between parties.
2.2 Any variation to these Terms and Conditions must be agreed in writing by the Surveyor and the Client.
2.3 Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Surveyor may be entitled in relation to the Services, by virtue of any statute, law or regulation.
3 APPLICATION FORM
3.1 The Application Form for Services is attached to these Terms and Conditions.
3.2 The Application Form for Services shall remain valid for a period of
3.3 The Application Form must be completed by the Client in its entirety.
3.4 The Agreement between the Surveyor and the Client, incorporating these Terms and Conditions, shall only come into force when the Surveyor confirms acceptance in writing to the Client.
4 SERVICES AND DELIVERY
4.1 The Services are as described in the Application Form and in these Terms and Conditions.
4.2 Any variation to the Services must be agreed by the Surveyor in writing and may attract an additional fee.
4.3 The Services shall commence on the Date of Instruction as specified in the Application Form and continue until the Services have been delivered or until terminated in terms of this Agreement.
4.4 Dates given for the delivery of Services are estimates only and not guaranteed. Time for delivery shall not be of the essence of the Agreement and the Surveyor shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery.
5.1 The Report shall advise the Client on the integrity of the main structural and physical elements of the Vessel, the state of repair of the Vessel and any matters that may require further investigation, as far as can be reasonably ascertained from a visible inspection.
5.2 The Report shall be delivered within three working days from the Date of Instruction.
5.3 The Report shall be delivered to the Client by Express Post to the address as stated on the Application Form.
5.4 The Report shall include statements on:
5.4.1 the main aspects of the Vessel including the design, structural framework, fabric and general condition;
5.4.2 any other issues requiring further investigation.
5.5 The Pre-Purchase Report shall not include a Valuation for the Vessel. Insurance Condition and Valuation Reports shall include a statement of Fair Market Valuation.
5.6 The Report is for the sole use of the Client and their appointed professional advisors only. The Client must not disclose the contents or any part thereof to any other third party without the written permission of the Surveyor.
5.7 The Report may advise that further specialist investigation is required for which additional fees will be chargeable by the Surveyor or an approved third party.
5.8 Delivery of the Report shall not take place until all payments for Services have been made in full.
6.1 The Surveyor shall conduct the Inspection diligently but shall not undertake any action that would risk damage to person or property.
6.2 The Surveyor shall take photographs as part of the Inspection, which will be included in the Report.
6.3 The Surveyor shall inspect the Vessel as thoroughly as is practicable and shall endeavour to comment on the most important items where it is expected major costs and consequences are most likely to arise. Minor matters shall only be noted where, in the opinion of the Surveyor, they are likely to become more serious.
6.4 The Inspection is based on a visible survey of the Vessel and does not cover hidden, inaccessible, obstructed or unexposed parts of the Vessel.
6.5 A full survey of the Vessel is recommended to include inspection of the vessel in the water and when lifted out of the water. Where the Client instructs a survey solely on an inspection of the Vessel out of the water the Surveyor shall make no representations regarding the watertight integrity, fitness for purpose or seaworthiness of the Vessel.
7 PRICE AND PAYMENT
7.1 The price for Services is as specified in the Application Form and is inclusive off GST and any other charges as outlined in the Application Form.
7.2 The terms for payment are as specified in the Application Form.
7.3 All direct costs and expenses incurred by the Surveyor in connection with the provision of the Services will be reimbursed by the Client on production of the appropriate receipts.
The Client must settle all payments for Services
prior to or on the
Date of Instruction
7.5 The Client will pay interest on all late payments at a
rate of 5% per annum above the base lending rate of the ANZ Bank.
7.6 The Surveyor is also entitled to recover all reasonable expenses incurred in obtaining payment from the Client where any payment due to the Surveyor is late.
7.7 The Client is not entitled to withhold any monies due to the Surveyor.
7.8 The Surveyor is entitled to vary the price to take account of:
7.8.1 any additional Services requested by the Client which were not included in the original Application Form;
7.8.2 any additional work required to complete the Services which was not contemplated at the time of the Application Form;
7.8.3 any reasonable increase in hourly rate, if applicable;
and any variation must be notified to the Client in writing by the Surveyor, and accepted by the Client prior to the Service being undertaken.
8 CLIENT OBLIGATIONS
8.1 The Client agrees to cooperate with the Surveyor and shall provide any support, information and facilities to the Surveyor as may be required.
8.2 The Client confirms that, if not the owner of the Vessel, the owner’s permission has been obtained to the carrying out of the Survey and have unfettered access for the duration of the service.
8.3 The Client is responsible for securing all necessary consents and approvals to enable the Surveyor to carry out the Services.
Before the inspection, the Client will inform the Surveyor of the agreed purchase price for the Vessel if appropriate and any particular concerns or questions which he or she may have about the Vessel.
9 SURVEYOR OBLIGATIONS
9.1 The Surveyor shall supply the Services as specified in these Terms and Conditions and in the Application Form.
9.2 The Surveyor shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice.
9.3 The Surveyor shall hold adequate professional indemnity insurance.
9.4 The Surveyor shall maintain the confidentiality of any confidential information provided by the Client.
10 RIGHT TO SUB-CONTRACT
10.1 The Surveyor shall have the right to sub-contract any of the Services to a professional of equal merit, subject to providing the Client with written notice of such intention and the right of the Client to object on reasonable grounds.
10.2 The Surveyor shall remain fully liable for the due performance of all obligations under these Terms and Conditions in the event that the Services are the subject of a sub-contract arrangement.
The Client will be entitled to cancel this contract by notifying the Surveyor at any time up to the close of business on the day before the Inspection. In case of cancellation, the Surveyor will refund any money paid by the Client for the Services, except for expenses reasonably incurred. In the case of cancellation by the Surveyor, the reason will be explained to the Client.
12.1 The Agreement shall continue until the Report has been delivered. Any subsequent engagement shall be pursuant of a new Agreement.
12.2 The Client may terminate the Agreement if the Surveyor fails to comply with any aspect of these Terms and Conditions and this failure continues for a period of
after notification of non-compliance is given.
12.3 The Surveyor may terminate the Agreement if the Client has failed to make over any payment due within two weeks of the sum being requested.
12.4 Either party may terminate the Agreement by notice in writing to the other if:
12.4.1 the other party commits a material breach of these Terms and Conditions and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
12.4.2 the other party commits a material breach of these Terms and Conditions which cannot be remedied under any circumstances; or
12.4.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
12.4.4 the other party ceases to carry on its business or substantially the whole of its business; or
12.4.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
12.5 In the event of termination the Client must make over to the Surveyor any payment for work done and expenses incurred up to the date of termination.
12.6 Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
13 DISPUTE RESOLUTION
13.1 In the event that the Client has a complaint regarding the standard of service that has been provided a formal complaint handling procedure shall be followed.
13.2 Any dispute between the parties arising out of this agreement will be dealt with firstly by: a) mediation; then b) expert determination.
13.3 Any action under the complaint handling procedure will not affect the Client’s legal rights to seek urgent relief.
Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
15 LIMITATION OF LIABILITY
15.1 The Services are intended for the Client only. No liability is assumed towards any other party and nothing in the Agreement shall confer or purport to confer on any third party a benefit or right to enforce any provision of these Terms and Conditions.
15.2 Nothing in these Terms and Conditions shall exclude or limit the liability of the Surveyor for death or personal injury, however the Surveyor shall not be liable for any direct loss or damage suffered by the Client howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Surveyor in the insurance year in which the Clients claim is first notified.
15.3 The Surveyor shall not be liable under any circumstances to the Client or any third party for any indirect or consequential loss of profit, consequential or other economic loss suffered by the Client howsoever caused, as a result of any negligence, breach of contract, misrepresentation or otherwise.
15.4 The Surveyor’s liabilities shall expire six months after completion of the Services in respect of which liability is alleged to arise and the Surveyor shall thereafter have no liability in respect of those Services and/or any alleged default in connection with the provision thereof.
15.5 The Surveyor’s liabilities in respect of the supply of services for an alledged breach of a condition or warranty is limited to:
a) the supply of services again;
b) the payment of having the services supplied again.
The Client shall indemnify the Surveyor against all claims, costs and expenses which the Surveyor may incur and which arise directly or indirectly from the Clients breach of any of its obligations under these Terms and Conditions.
17 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of the time to comply with its obligations.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Surveyor.
19 RELATIONSHIP OF PARTIES
Nothing in the Agreement shall be construed as establishing or implying a partnership or joint venture between the parties or suggest that either of the parties are agent for the other.
20 THIRD PARTY RIGHTS
Nothing in these Terms and Conditions intend to or confer any rights on a third party.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Application Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
24 ENTIRE AGREEMENT
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
25 GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the law of
the New South Wales and the parties hereby submit to the exclusive jurisdiction of the New South Wales courts.