Agreement

AAA Yacht Mechanics Pty Ltd ABN 71602767260

Standard Terms and Conditions of Vessel Repair

1

Definitions

A. ‘Agreement’ means this document.

B. ‘Customer’ means the person, firm, body corporate, association or company who, or on whose behalf, requests the Repairer to perform the Works.

C. ‘Repairer’ means AAA Yacht Mechanics Pty Ltd ABN 71602767260 and any of its employees, agents or subcontractors.

D. ‘Vessel’ means the boat or watercraft described on any quotation, invoice, job sheet or other document issued by the Repairer to the Customer and it includes the hull, motors, trailer, controls, equipment, accessories, dinghies, tenders and their motors.

E. ‘Works’ means all works carried out by the Repairer at the request of the Customer, its employees or agents, including without limitation:

a. All repairs, maintenance, improvements or shipwright work;

b. The supply of all machinery, parts, materials, equipment, accessories, labor or specialised tools and/or the removal from the Vessel of any machinery, parts, materials, equipment or accessories;

c. Any operation, movement or storage of the Vessel.

Quotes

1. Please note that any quote/s the Repairer has provided the Customer are an estimate and are not a fixed quote.

2. The total costs may exceed the quote. While the quote is based on present information and instructions and the Repairer’s current understanding from you as to what services are required, our costs may exceed the quote/s if further information becomes available or circumstances change which impact on these matters. In this event the Repairer will provide the Customer with a revised quote as soon as practicable.

Variables

3. Some of the variables which may impact upon any quote provided include the following:

3.1. the number and duration of telephone calls or other communications;

3.2. the Customer’s prompt response to requests for information or instructions about the Works;

3.3. whether the Customer’s instructions are varied relating to the Works;

3.4. additional problems are identified in the Works;

3.5. if new work needs to be performed in addition to quoted Works and

3.6. the complexity or uncertainty concerning affecting the Works.

Scope of Works and Authorisation

4. The Customer warrants that it is the owner of the Vessel or the Vessel owner’s agent and that it has the authority to request that the Repairer perform the Works.

5. The Customer authorises the Repairer to move and/or store the Vessel by whatever means and in whatever circumstances the Repairer considers necessary and appropriate for the performance of the Works.

6. The Customer acknowledges that quotes for Works are valid for the period stated in the quote.

Payment

7. The Customer agrees to pay the Repairer upon receipt of a Tax Invoice being issued.

8. The Repairer’s charges his time for any Works at an hourly rate or part thereof.

9. If the Customer owes any amount on any invoice after the expiration of 30 days from the date of invoice, the Repairer will be entitled to claim interest at the weighted average interest rate on credit outstanding as published from time to time by the Reserve Bank of Australia plus 3%.

10. The Customer agrees that until all outstanding invoices together with any interest, charges or other costs payable have been paid in full, the title of any machinery, parts, materials, equipment or accessories supplied by the Repairer does not pass to the Customer and the Customer is not entitled to delivery of the Vessel.

11. The Customer must accept delivery of the Vessel within 2 days of the Repairer providing notification to the Customer that the Vessel is ready for delivery and if the Vessel is not accepted within such time, the Repairer will be entitled to claim storage costs at a rate of 2% of the invoiced price of Works for each day that the Vessel remains in the custody of the Repairer.

12. The Customer agrees that by accepting delivery of the Vessel it has inspected the Works and satisfied itself that all Works have been performed and completed with due care and skill and to a proper and satisfactory standard.

Lien

13. The Repairer is entitled to a repairer’s lien over the Vessel and/or a general lien over any other property of the Customer that comes into the possession of the Repairer for any reason until all amounts owing by the Customer to the Repairer are paid in full.

Liability limitation of indemnity

14. To the extent the Trade Practices Act 1974 (Cth) (TPA) or any similar state law applies to this Agreement, then certain conditions and warranties will be implied into this Agreement to the benefit of the Customer, and those conditions and warranties cannot be excluded, restricted or modified by any provision of this Agreement.

15. If the Repairer is liable for a breach of condition or warranty implied by the TPA, then to the extent permitted by section 68A of the TPA, the Repairer’s liability to the Customer will be limited to, at the discretion of the Repairer either:

15.1. The re-supply of the goods or services; or

15.2. The cost of having the goods or services re-supplied.

16. Except as provided for in this Agreement, the Repairer will not in any circumstances be liable for any loss,damage or injury of any kind arising out of or in any way connected with the performance of the Works howsoever caused, including by way of negligence, breach of contract, breach of duty of bailment or willful act of the Repairer, its employees, agents or sub-contractors.

17. The Customer will indemnify the Repairer against all claims and demands whatsoever by whomsoever made in respect of any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works howsoever caused, including by way of negligence, breach of contract, breach of duty of bailment or willful act of the Repairer, its employees, agents or sub-contractors.

Sub-contracting

18. The Repairer is entitled to subcontract on any terms the whole or part of the Works.

Liability and employees, agents and subcontractors

19. It is expressly agreed that every exemption from liability, defence, immunity and right under this Agreement will extend to and protect every employee, agent and subcontractor defined as the Repairer in this Agreement and in this regard the Repairer who is a party to this Agreement will be deemed to be acting as agent or trustee on behalf of all Repairers.

Force Majeure

20. If the Repairer by reason of any matter beyond its control, including without limitation: any act of God; strike, lock-out or labor disturbance; war or warlike condition; act of terrorism; civil riot; sabotage; explosion; lightning; fire; earthquake, landslide or tidal wave; storm, flood or other extraordinary weather conditions; quarantine; requirements of government authorities; unavailability or delay in supplies (including electricity, oil, water or gas), equipment or transport; refusal of or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences; or otherwise is unable to perform any part of its obligations under this Agreement, to the extent and for the period that it is not reasonably able to perform, the Repairer will not be liable to the Customer.

Waiver or variation

21. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

22. The exercise of a power or right does not preclude:

22.1. its future exercise; or

22.2. the exercise of any other power or right.

Time Bar

23. The Repairer will not in any circumstances be liable for any claim for loss, damage or injury (including any economic or consequential loss) arising out of or in any way connected with the performance of the Works whether involving negligence of the Repairer or otherwise, unless such claim is made in writing within ONE (1) month of the earliest of the following occurring:

23.1. The Works being completed; or

23.2. The Vessel leaving the care, custody or control of the Repairer.

Whole agreement

24. In relation to the subject matter of this Agreement:

24.1. This Agreement is the whole agreement between the parties; and

24.2. This Agreement supersedes all oral and written communications by or on behalf of any of the parties.

No reliance on warranties and representations

25. In entering into this Agreement, each party:

25.1. Has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person; and

25.2. Has relied entirely on its own enquiries in relation to the subject matter of this Agreement.

25.3. This clause does not apply to warranties and representations that this Agreement expressly sets out.

Severance

26. If any part of this Agreement is invalid or unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.

No merger

27. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a party may have against another party or any other person at any time.

Consents and approvals

28. Where this Agreement gives any party a right or power to consent or approve in relation to a matter under this Agreement, that party may withhold any consent or approval or give consent or approval conditionally or unconditionally. The party seeking consent or approval must comply with any conditions the other party imposes on its consent or approval.

Acceptance of this Agreement

29. The customer accepts to be bound by this Agreement by continuing to instruct the Repairer to perform any Works after the date of the communication of this Agreement to the Customer.

30. Any electronic communication to which this agreement is attached forms part of this Agreement including but not limited to SMS, MMS, email or facsimile.

31. Any quote that the Repairer has provided the Customer forms part of this agreement.