CONDITIONS OF CONTRACT

 

 1)             In these conditions of Contract:

 a)        “Clearmarine” means Clearmarine Pty Ltd

b)        “Client” is the party at whose request or on whose behalf Clearmarine undertakes surveying services.

c)         “Report” means any report or statement supplied by Clearmarine in connection with instructions received from the client

d)        “Services” means and includes the whole of the services provided by Clearmarine including but not limited to Ship management, Maintenance supervision, new building supervision, surveys, and Fire and safety surveys.

e)        “Subcontractor” includes any other person who pursuant to a contract or arrangement with any other person (whether or not Clearmarine) provides or agrees to provide the Services or any part of the Services.

f)         “Disbursements” means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches and printing, duplicating and, where applicable, electronic transmissions fees and all reasonable and appropriate expenses including travel, refreshments and hotel accommodation where an overnight stay is necessary.

g)        “Fees” means the fees charged by Clearmarine to the client and including any goods and services tax where applicable and any disbursements

 

2)             All Services are provided by Clearmarine subject only to these Conditions of Contract and any terms, conditions or warranties not expressly stated in these Conditions of Contract do not form part of the Contract between Clearmarine and the Client.

3)              

a)        The client expressly warrants that it has the authority to request Clearmarine to provide the Services. The client will set out in writing the services which it requires Clearmarine to provide. Clearmarine will confirm in writing that it accepts those instructions or alternatively what services it will perform in connection with the client’s instructions.  Once Clearmarine and the client have agreed what services are to be performed any subsequent changes or additions must be agreed by both parties in writing. For the avoidance of doubt if the instructions are not provided in writing but Clearmarine nevertheless confirms their acceptance of these, the services will be provided in accordance with these conditions.

 b)        Where the Client is acting as an agent in requesting the provision of the Services, the client agrees to be liable jointly and severally with its principal for all amounts payable to Clearmarine pursuant to this contract.

 c)         The Client authorises Clearmarine to take all steps that in the opinion of Clearmarine are necessary in order to provide the Services.

4)              

a)        The Client agrees to pay all amounts which are invoiced to it by Clearmarine in respect of the Services provided within the period stated on the Clearmarine invoice. Any delay in payment shall entitle Clearmarine to interest at 8% above the Base lending rate of St George Banking Corporation prevailing at the time of default.

 b)        If the Client disputes the whole or any part of the amounts invoiced to it by Clearmarine, the Client agrees to pay that part which is not in dispute and to notify Clearmarine in writing of any reasons for disputing the unpaid part at the time of the payment. If the parties are unable to reach agreement within seven (7) days of the notification by the Client then the dispute shall be determined in accordance with this Contract. If it is determined that some or all of the part in dispute ought to have been paid at the time when it was invoiced, then the Client shall pay that part together with interest on that part calculated in accordance with Clause 4 (1).

 c)         If the engagement of Clearmarine is terminated for any reason other than a breach of the Contract by Clearmarine, Clearmarine shall be entitled to a pro rata payment for the Services carried out and consequential costs and expenses incurred as a result of the termination for the period up to and including the date of that termination.

 d)        The parties agree that where Clearmarine is required to provide the Services in circumstances other than those which normally occur in the provision of the Services or where there is a variation in the Services which have been requested to be provided, Clearmarine shall be entitled to the payment of additional amounts which are to be agreed between the parties immediately those circumstances or changes in the Services become known to Clearmarine.

5)              

a)        The Client undertakes to ensure that full instructions are given to Clearmarine in writing and are provided in sufficient time to enable the required Services to be performed effectively and efficiently and to procure all necessary access for Clearmarine to goods, premises, vessels, installations and transport and to ensure that all appropriate safety measures are taken to provide safe and secure working conditions. Clearmarine shall not be liable for any loss or damage, resulting from late, incomplete, inadequate, inaccurate or ambiguous instructions.

 b)        Clearmarine shall use reasonable care and skill in the performance of the Services in accordance with sound marine surveying/consulting practice

 c)         Clearmarine shall submit a final written Report to the Client following completion of the agreed Services describing the findings and the condition and/or quality of the object and/or purpose of the assignment, unless otherwise expressly instructed by the Client not to do so.

 d)        Clearmarine undertakes not to disclose any information provided in confidence by the Client to any third party and will not permit access to such information by any third party unless the Client expressly grants permission save where required to do so by an order of a competent court of law. If information is provided by the Client in confidence the Client undertakes to make it clear in writing what information is provided in confidence.

 e)        The right of ownership in respect of all original work created by Clearmarine remains the property of Clearmarine.

 f)         Clearmarine shall promptly notify the Client of any matter including conflict of interest or lack of suitable qualifications and experience, which would render it undesirable for the Surveyor/Consultant to continue its involvement with the appointment. The Client shall be responsible for payment of Clearmarine’s Fees up to the date of notification.

6)              

a)        Without prejudice to Clause 7, Clearmarine shall be under no liability whatsoever to the Client for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect and howsoever arising UNLESS same is proved to have resulted solely from the negligence, gross negligence or wilful default of Clearmarine or any of its employees or agents or sub-contractors.

 b)        Where the Australian Consumer Law consumer guarantees do not apply and in the event that the Client proves that the loss, damage, delay or expense was caused by the negligence, gross negligence or wilful default of Clearmarine aforesaid then, save for where loss, damage, delay or expense has resulted from Clearmarine’s personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result, Clearmarine’s liability for each incident or series of incidents giving rise to a claim or claims shall never exceed a sum calculated on the basis of ten times Clearmarine’s charges or Australian $100,000, whichever is the lesser.

 c)         Notwithstanding anything set out in these conditions, they are subject to the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010  if and to the extent consumer guarantees apply to this Contract and prevent the exclusion, restriction or modification of any such consumer guarantee. The liability of Clearmarine, if any, for breach of any consumer guarantee which applies (other than where the Services are of a kind ordinarily acquired for personal, domestic or household consumption) shall be limited at the option of Clearmarine to the supply of the Services again or the payment of having the Services supplied again.

 d)        Clearmarine shall not be liable for loss of or damage to equipment and other items placed at its disposal by or on behalf of the Client however such loss or damage occurs.7.

 e)        Clearmarine and any Subcontractor shall be entitled to subcontract on any terms the whole or any part of the Services.

 f)         Except to the extent and solely for the amount therein set out that Clearmarine would be liable under Clause 6, the Client hereby undertakes to keep Clearmarine and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them, and against and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which Clearmarine may suffer or incur (either directly or indirectly) in the course of providing the Services under these Conditions.

 g)        Neither Clearmarine nor the Client shall, except as otherwise provided in these conditions, be responsible for any loss, damage, delay or failure in performance hereunder arising or resulting from act of God, act of war, seizure under legal process, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people.

7)         Clearmarine shall effect and maintain, at no cost to the Client, Professional Liability Insurance for such loss and damage for which Clearmarine may be held liable to the Client under these terms and conditions

8)         Clearmarine shall not be bound by any agreement purporting to waive or vary these Conditions of Contract unless such agreement to so waive or vary shall be in writing and signed by an executive officer of Clearmarine.

9)         Clearmarine shall have the right to sub-contract any of the services provided under these conditions, subject to the Client's right to object on reasonable grounds. In the event of such a sub-contract Clearmarine shall remain fully liable for the due performance of its obligations under these conditions

10)     The parties agree that if any provision or any part of any provision of these Conditions of Contract is unenforceable such unenforceability shall not affect any other provision or any other part of such provision.

11)     Clearmarine shall be discharged of all liability in respect of any claim for loss, damage, delay or expense suffered by the Client unless, within 12 months from the date on which Clearmarine submits a final report to the client (or, if not report is issued, the date on which the report would have been issued), suit is brought against the Surveyor/Consultant in the proper forum and written notice thereof is received by the Surveyor/Consultant.

12)     These conditions shall be governed by and construed in accordance with the laws of Australia and any dispute shall be subject to the exclusive jurisdiction of the Australian Courts