Terms & Conditions of Sale
1.1 “Seller” means Hawkins Marine Holdings Pty Ltd trading as All Marine Solutions(ACN 643 000 346, ABN 80 643 000 346).
1.2 “Customer” means the person(s) or entity to whom these terms and conditions are directed.
1.3 “Guarantor” means the person(s) or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” means all goods and services ordered from the Seller by the Customer.
1.5 “Equipment” means Goods supplied by the Seller to the Customer for the purpose of loan, hire or evaluation.
1.6 “Terms” means these terms and conditions of sale, inclusive of the contract.
2.1 Unless previously withdrawn, the Seller’s Estimations are valid for a period of 30 days from the date of issuance.
2.2 Additional labour or material used will be invoiced accordingly.
3.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the Terms contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly liable for all payments.
3.3 Upon acceptance of these Terms by the Customer, the Terms are irrevocable and can only be rescinded in accordance with these Terms or with the written consent of the Seller.
3.4 None of the Seller’s agents are authorised to make any representations, statements, conditions or agreements not expressed by the Seller nor is the Seller bound by them. The Customer hereby disclaims any right to rescind the Terms or to sue for damages or to claim restitution arising out of any misrepresentation by any agent of the Seller.
3.5 The Customer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, email address, facsimile number, or business practice).
4.1 The Goods are as described in the Estimation or Invoice as provided by the Seller to the Customer.
4.2 All tangible Goods remain the property of the Seller until full payment is received.
4.3 The Seller may sub-contract all or any part of its rights and obligations without the Customer’s consent.
5.1 Prices shall be as indicated on Invoices provided by the Seller to the Customer in respect of Goods supplied.
5.2 Customer changes to specifications, after acceptance of order will incur a price variation.
5.3 Prices shall be increased by the amount of any GST and other taxes and duties, and freight charges which may be applicable, except to the extent that such items are expressly included in any Estimation given by the Seller.
5.4 The Seller reserves the right to introduce other charges and fees and to vary these at any time and without prior notice.
6.1 Unless otherwise agreed between the Customer and the Seller, 50% deposit is required from the Customer upon acceptance of an Estimation. It shall become immediately due and payable, prior to order execution.
6.2 Time for payment for the Goods shall be of the essence and will be stated on the Estimation or Invoice. If no time is stated, then payment shall be on delivery of the Goods.
6.3 Payment will be made by cash, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Seller.
6.4 Prior to the sea or land vessel leaving, payment must be made in full.
6.5 The Seller reserves the right to commence recovery action on any overdue amount without notice to the Customer. Any legal or collection costs incurred in the recovery of any overdue amounts will be recoverable from the Customer.
6.6 If the Customer fails to pay the Seller any sum within 7 days from the date of Invoice, the Customer agrees to be charged an interest rate of 2.5% per month on the overdue amount from the date of Invoice.
6.7 Customer will be required to provide Visa or Master Card details if requested prior to commencement of work. The Customer authorises the Seller to use the Card for payment if other means of payment has not occurred within 7 days from the date of Invoice.
6.8 For long term work(more than a week), the Customer agrees to settle weekly progressive Invoice and acknowledge that the Seller reserves the right to stop work immediately until this Invoice is settled.
7.1 The delivery date provided is an Estimation only based upon information available at the time of Estimation and the Seller shall not be liable for late delivery or non-delivery. The Seller shall not be liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery.
7.2 If the Customer fails to take delivery of Goods supplied and provided that there is no agreement to the contrary, the Customer shall be obliged to make payment as if delivery has been made.
7.3 Delivery of Goods will be to the Customer’s address identified by the Customer and accepted by the Seller.
7.4 Delivery of the Goods through a carrier, either named by the Customer or failing such naming, through a carrier at limited carrier’s risk at the expense of the Customer, at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
7.5 The Seller may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in the Terms.
7.6 The failure of the Seller to deliver shall not entitle either party to treat the Terms as repudiated.
7.7 The Customer is responsible for all costs associated with the unloading of Goods.
7.8 The Seller may refuse to deliver further Goods where the Customer is in default of Seller’s payment terms.
8. Passing Risk
8.1 Risk in the Goods shall pass to the Customer upon delivery of the Goods to the Customer or collection of the Goods by the Customer’s agent or courier. The Customer shall insure the Goods for their full replacement value from the time that risk in the Goods passes to the Customer until the time that title to the Goods passes to the Customer. The Customer shall hold the Goods as bailee but shall not be entitled to receive any remuneration in respect of that bailment.
9.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the order. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the Terms and free from any defect or damage.
9.2 The Seller may (in its discretion) accept the Goods for credit if they are as new and in their original packing condition. This will incur a handling fee of 20% of the invoice value of the returned Goods plus any freight cost.
9.3 Any contaminated Goods must be thoroughly cleaned and flushed prior to returning to the Seller. Otherwise, these Goods will be considered possibly dangerous and will be returned to the sender.
10. Product Liability
10.1 The Seller shall not be liable in respect of any claim caused by or arising out of the use of the Goods except insofar as the same may be imposed upon it or implied into the transaction by any statute. The Seller will not be liable for direct or indirect consequential loss or damage arising out of the use of the Goods.
10.2 The Seller expressly disclaims responsibility for Goods supplied by it that,
(i) are damaged by accident,
(ii) are damaged by abnormal operating conditions, war, violence, storm, cataclysm or other acts of God,
(iii) are damaged by being used for any application for which the Goods are not supplied for,
(iv) are damaged by sand, abrasive materials, corrosion, hazardous liquid, electrolytic action, liquid temperature beyond the recommended range, cavitation, lightning strike, improper supply of voltage or insufficient liquid to enable the Goods to perform and,
(v) are subject to incorrect maintenance or mishandling.
11.1 The Seller offers a 1-year warranty on Goods not covered by a manufacturer’s warranty. All other Goods are warranted in accordance with the manufacturers’ warranty period and terms.
11.2 In the case of any sale of any Goods made pursuant to these Terms being a sale to which the provisions of the Trade Practices Act 1974, or any equivalent State legislation, then the liability of the Seller is limited to,
(i) the repair of the Goods and,
(ii) the replacement of the Goods.
11.3 The Seller reserves the right to refuse to repair products that are polluted or contaminated.
11.4 Freight and insurance for all Goods returned to Seller for warranty assessment must be pre-paid. The Seller will not accept liability for the cost of disassembly, assembly and installation.
11.5 Warranty on workmanship is granted to the original user only and is valid for 3 months from the Invoice date. The customer is responsible to arrange for warranty works to be done at original location or a location closer to the Seller. Goods that are supplied and not made by the Seller shall be subject to the warranty terms of the manufacturer.
11.6 Warranty does not cover wear and tear.
11.7 All work must be commissioned and verified in the water by the Seller to validate warranty.
11.8 Warranty is valid only if invoice is paid in full within 7 days.
11.9 Warranty is void if,
(i) the Goods supplied are stored for a period of time before installation and operation, which are not in accordance with the Operation and Installation Manual,
(ii) the Customer attempts to repair the Goods and subsequently fails and,
(iii) installation is not in accordance with the Operation and Installation Manual.
12. Intellectual Property
12.1 Where any designs or specifications have been supplied by the Customer for manufacture, by or to the order of the Seller, then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
13.1 If the Customer makes default in payment or otherwise fails to carry out the Terms or repudiates this with the Seller, or if the Customer stops payment, calls a meeting of its creditors or becomes insolvent, or subject to bankruptcy laws, or being a company calls a meeting for the purpose of or goes into liquidation or has a winding up summons presented against it or has a receiver, controller or administrator appointed, the Seller at its option and notwithstanding the waiver of such default or failure and without prejudice to its rights under the Terms, may suspend or cancel the Terms or require payment in cash before or on delivery. The Seller may take possession of the goods and dispose of the same in its own interest, without prejudice to any claim it may have for any loss resulting from such re-sale and all credit facilities available to the Customer may be withdrawn by the Seller at any time thereafter.
14.1 The Seller reserves the following rights in relation to the Goods until all payment owed by the Customer to the Seller in respect of the Goods have been paid in full. This further applies to clause 6.8 where the Seller has not formally handed over the project work to the Customer and the Customer has not paid in full of the entire project work.
(i) legal ownership of the Goods,
(ii) to enter the Customer’s premises( or the premises of any associated company or agent where the Goods are located without liability for trespass or any resulting damage ) and take possession of the Goods and,
(iii) to keep or re-sell any Goods repossessed pursuant to (ii) above.
14.2 If the Goods are re-sold, or products manufactured using the Goods are sold by the Customer, the Customer shall hold such part of the proceeds of any such sale as representing the Invoice price of the Seller’s Goods sold or used in the manufacture of the products sold in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request. Notwithstanding the provisions above, the Seller shall be entitled to maintain an action against the Customer for the Invoice price.
15.1 No order may be cancelled by the Customer except with consent in writing and on terms which will indemnify the Seller against all losses.
15.2 The Seller shall be entitled to cancel the order by notifying the Customer in writing if fulfilment is impossible within a reasonable period of time because of war, strike, lockout, political conditions or other incidents of force majeure beyond the Seller’s control. The same applies in the case of delayed or faulty delivery from a sub-supplier, in the event of such incidents; the Seller shall not be liable to pay damages to the Customer.
16. Privacy Act
16.1 The Customer acknowledges that credit information may be given to a credit reporting agency, on the Customer’s understanding that the Privacy Act allows the Seller to give a credit reporting agency certain information about the Customer.
16.2 To enable the Seller to assess the Customer’s application for commercial credit, the Customer authorises the Seller to obtain from a credit reporting agency a credit report containing personal and commercial credit information about the Customer. In accordance with the Privacy Act, the Customer authorises the Seller to give and receive from any credit provider information on the Seller’s possession or the credit provider’s possession about the Customer’s credit worthiness, credit standing, credit history and credit capacity. The Customer understands that the information may be used to assess an application for credit by the Customer and assess the Customer’s credit worthiness.
17.1 The Equipment shall at all times remain the property of the Seller and is returnable on demand by the Seller. In the event that the Equipment is not returned to the Seller in the condition in which it was delivered, the Seller retains the right to charge the Customer for the repair or replacement of the Equipment.
17.2 The Customer shall,
(i) keep the Equipment in own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment and the Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies the Seller for all loss, theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft or damage is attributable to any negligence, failure or omission of the Customer and,
(ii) not alter or make any additions to the Equipment including but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner that interferes with the Equipment.
18. Applicable Law
18.1 Any agreement or contract pursuant to the Terms shall be deemed to have been made in Queensland and shall be governed by the laws of Queensland.