Williamstown Marine Services Pty Ltd Trading as Penfold Marine – Terms and Conditions
1.1 “Penfold Marine” shall mean Williamstown Marine Services Pty Ltd Trading as Penfold Marine its successors and assigns or any person acting on behalf of and with the authority of Williamstown Marine Services Pty Ltd Trading as Penfold Marine.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Penfold Marine to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Penfold Marine to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Penfold Marine to the Client.
1.5 “Services” shall mean all Services supplied by Penfold Marine to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Penfold Marine and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 9 (Defects) and clause 10 (Warranty) may NOT apply to the Client where the Client is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Client is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
3.1 Any instructions received by Penfold Marine from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Penfold Marine shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Penfold Marine.
3.4 The Client shall give Penfold Marine not less than seven (7) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Penfold Marine as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Penfold Marine only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6 If the Client is putting their vessel into storage on Penfold Marine’s premises, then these terms and conditions shall be accompanied by Penfold Marine’s Terms and Conditions of Storage which are meant to be read in conjunction with these Terms and Conditions of Trade. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
4. Price And Payment
4.1 At Penfold Marine’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Penfold Marine to the Client in respect of Goods supplied; or
(b) Penfold Marine’s quoted Price (subject to clause 4.4) which shall be binding upon Penfold Marine provided that the Client shall accept Penfold Marine’s quotation in writing within thirty (30) days; or
(c) Penfold Marine’s estimated Price (subject to clause 4.4) which shall be agreed in writing between Penfold Marine and the Client prior to the commencement of the works. The estimate shall be valid for fourteen (14) days only.
4.2 Penfold Marine reserves the right to change the Price in the event of a variation to Penfold Marine’s estimated or quoted Price. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as weather conditions, age of vessel, the occurrence of osmosis on the vessel or as a result of increases to Penfold Marine in the cost of materials and labour) will be charged for on the basis of Penfold Marine’s quotation or estimate and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 If an estimate, the final Price can only be ascertained upon completion of the works. Variances in the estimated Price of more than fifteen percent (15%) will be subject to client approval before proceeding with the works.
4.4 Penfold Marine may submit detailed progress payment claims in accordance with Penfold Marine’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.5 Penfold Marine reserves the right to change the Price in the event of a variation to Penfold Marine’s quotation.
4.6 Where the Goods or vessel are not collected within forty eight (48) hours of advice to the Client that they are ready for collection, then Penfold Marine (at its sole discretion) may charge a reasonable fee for storage.
4.7 At Penfold Marine’s sole discretion a non refundable deposit and/or an administration fee may be required.
4.8 At Penfold Marine’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Services; or
(c) payment for approved Clients shall be due fourteen (14) days following the date of the invoice.
4.9 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.10 Payment will be made by cash, or by bank cheque, or by credit card (plus a surcharge of up to three percent (3%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Penfold Marine.
4.11 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At Penfold Marine’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Penfold Marine’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Penfold Marine or Penfold Marine’s nominated carrier).
5.2 At Penfold Marine’s sole discretion the costs of delivery are included in the Price.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Penfold Marine shall be entitled to charge a reasonable fee for redelivery.
5.4 The failure of Penfold Marine to deliver shall not entitle either party to treat this contract as repudiated.
5.5 Penfold Marine shall not be liable for any loss or damage whatsoever due to failure by Penfold Marine to deliver the Goods (or any of them) promptly or at all where due to circumstances beyond the control of Penfold Marine.
6.1 If Penfold Marine retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Penfold Marine is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Penfold Marine is sufficient evidence of Penfold Marine’s rights to receive the insurance proceeds without the need for any person dealing with Penfold Marine to make further enquiries.
6.3 Where the Client expressly requests Penfold Marine to leave Goods outside Penfold Marine’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 Penfold Marine shall not be liable for the loss of or damage to the vessel, its accessories or contents while it is being stored, transported or operated in connection with the work authorised unless caused by the negligence of Penfold Marine or Penfold Marine’s employees.
6.5 It is the Client’s responsibility to ensure that the vessel is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on Penfold Marine’s premises. The vessel is at all times stored and repaired at the Client’s sole risk.
6.6 The Client agrees that any work carried out on the vessel and/or the storage of the vessel at Penfold Marine’s premises is done so at the Client’s own risk and releases to the full extent permitted by law Penfold Marine, its employees and agents from all claims and demands of any kind and from all liability which may arise in respect of any accident, damage or injury occurring to any person or property arising out of the storage and/or repair of the vessel.
7.1 The Client shall ensure that Penfold Marine has clear and free access to the vessel to enable them to undertake the Services. Penfold Marine shall not be liable for any loss or damage that may arise to the vessel (including damage to any other secondary vessel, property, or marina that is necessary for Penfold Marine to use in gaining access the worksite) unless due to Penfold Marine’s negligence.
8.1 Penfold Marine and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Penfold Marine all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Penfold Marine in respect of all contracts between Penfold Marine and the Client.
8.2 Receipt by Penfold Marine of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Penfold Marine’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Penfold Marine shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Penfold Marine to the Client Penfold Marine may give notice in writing to the Client to return the Goods or any of them to Penfold Marine. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Penfold Marine shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Penfold Marine then Penfold Marine or Penfold Marine’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Penfold Marine has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Penfold Marine for the Goods, on trust for Penfold Marine; and
(f) the Client shall not deal with the money of Penfold Marine in any way which may be adverse to Penfold Marine; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Penfold Marine; and
(h) Penfold Marine can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Penfold Marine will be the owner of the end products.
9.1 The Client shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Penfold Marine of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Penfold Marine an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Penfold Marine has agreed in writing that the Client is entitled to reject, Penfold Marine’s liability is limited to either (at Penfold Marine’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10.1 For Goods not manufactured by Penfold Marine, the warranty shall be the current warranty provided by the manufacturer of the Goods. Penfold Marine shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10.2 To the extent permitted by statute, no warranty is given by Penfold Marine as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Penfold Marine shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. Intellectual Property
11.1 Where Penfold Marine has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Penfold Marine, and shall only be used by the Client at Penfold Marine’s discretion.
11.2 The Client warrants that all designs or instructions to Penfold Marine will not cause Penfold Marine to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Penfold Marine against any action taken by a third party against Penfold Marine in respect of any such infringement.
11.3 The Client hereby authorises Penfold Marine to utilise images of the Goods designed or drawn by Penfold Marine in advertising, marketing, or competition material by Penfold Marine.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Penfold Marine’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Penfold Marine.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Penfold Marine from and against all costs and disbursements incurred by Penfold Marine in pursuing the debt including legal costs on a solicitor and own client basis and Penfold Marine’s collection agency costs.
12.4 Without prejudice to any other remedies Penfold Marine may have, if at any time the Client is in breach of any obligation (including those relating to payment), Penfold Marine may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Penfold Marine will not be liable to the Client for any loss or damage the Client suffers because Penfold Marine has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to Penfold Marine’s other remedies at law Penfold Marine shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Penfold Marine shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Penfold Marine becomes overdue, or in Penfold Marine’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which Penfold Marine may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Penfold Marine or Penfold Marine’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Penfold Marine (or Penfold Marine’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Penfold Marine elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Penfold Marine from and against all Penfold Marine’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Penfold Marine or Penfold Marine’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 Penfold Marine may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Penfold Marine shall repay to the Client any sums paid in respect of the Price. Penfold Marine shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Penfold Marine (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 In the event that Penfold Marine is engaged in repeat or ongoing work with the Client, then either party must provide a minimum of thirty (30) days notice to cancel or suspend the ongoing work.
14.4 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for Penfold Marine to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Penfold Marine.
15.2 The Client and/or the Guarantor/s agree that Penfold Marine may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
15.3 The Client consents to Penfold Marine being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Penfold Marine for the following purposes and for other purposes as shall be agreed between the Client and Penfold Marine or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Penfold Marine, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
15.5 Penfold Marine may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16. Unpaid Seller’s Rights
16.1 Where the Client has left any item with Penfold Marine for repair, modification, exchange, storage or for Penfold Marine to perform any other Service in relation to the item and Penfold Marine has not received or been tendered the whole of the Price, or the payment has been dishonoured, Penfold Marine shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Penfold Marine is in possession of the item;
(c) a right to sell the item.
16.2 The lien of Penfold marine shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria, Australia.
17.3 Penfold Marine shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Penfold Marine of these terms and conditions.
17.4 In the event of any breach of this contract by Penfold Marine the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Penfold Marine nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 Penfold Marine may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Client agrees that Penfold Marine may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Penfold Marine notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Penfold Marine to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Penfold Marine’s right to subsequently enforce that provision.