These terms and conditions must be read having regard to the provisions of the Trade Practices Act to the extent that those provisions are applicable to consumers as defined under section 4B of that Act. These terms and conditions do not have the effect of excluding, restricting or modifying rights under that Act which cannot be excluded, restricted or modified by agreement.
1.Definitions “ANZ Reference Rate” means the rate published by the Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) as the ANZ reference rate for variable interest rates for business finance. “Surveyor” means KPS Maritime (ABN 52 345 032 399). “Client” is the party at whose request or on whose behalf the Surveyor undertakes the Services. “Default Rate” means the ANZ Reference Rate plus 2%. “Disbursements” means all costs incurred by the Surveyor in performing the Services and preparing all Reports including travel, refreshments and hotel accommodation where an overnight stay is necessary. “Report” means any report or statement supplied by the Surveyor in connection with the Services. “Services” means the scope of work agreed between the Surveyor and the Client including but not limited to; inspecting and providing pre-purchase assessment reports of the Client’s or third party vessels, valuations, statutory authority compliance surveys, safety and pollution audits, insurance and financial risk assessments, non-destructive testing, design and construction auditing, project management services and preparation of tenders, specifications and feasibility reports.
2. Engagement Any instructions given to the Surveyor may in the absolute discretion of the Surveyor be complied with by the Surveyor as agent for the Client as disclosed principal or by the Surveyor as principal contractor by its own servants performing part or all of the relevant services or by the Surveyor employing or instructing or entrusting the Services to others on such other conditions as they may stipulate to perform part or all of the services. The Client shall be bound by such other conditions and shall release the Surveyor from liability and indemnify the Surveyor against any claims arising out of their acceptance. No promise, undertaking, representation, warranty or statement by either the Surveyor or the Client shall affect the operation of these terms and conditions.
3. Services The Surveyor reserves to itself complete freedom of choice of means of undertaking the Services. If in the Surveyor’s opinion it is necessary or desirable in the Client’s interests to depart from any express instructions, the Surveyor shall be at liberty to do so.
4. Payment Terms Quotations are given on the basis of immediate acceptance and subject to the right of withdrawal before acceptance and revision after acceptance. The Client shall pay the Surveyor’s invoices immediately on receipt or within 7 days of receiving the Surveyor’s invoice if so agreed by the Surveyor.
5. Interest The Client agrees to pay interest on outstanding invoices from and including the day on which it is due to the day on which it is paid in full at the Default Rate calculated daily up to the day on which the outstanding amount is paid in full.
6. Lien The Surveyor may take a lien over any Reports or other documents in the Surveyor’s possession until all fees are paid in full.
7. Obligations and Responsibilities
7.1 Access Although arranged or undertaken by the Surveyor, the Client undertakes to procure access and warrant the safety of goods, premises, vessels or installations used by or accessed by the Surveyor to undertake the Services. If the Surveyor is unable to gain access or must return to complete the Services due to no fault of the Surveyor, then the Surveyor may cancel this agreement and claim damages from the Client or charge additional fees for completion of the Services as agreed by the Client.
7.2 Reporting The Surveyor shall submit a Report to the Client following completion of the Services unless it is agreed in writing that no Report is required. No statement made by the Surveyor may be relied upon unless it is contained in the agreement between the parties or a Report.
7.3 Property The right of ownership in respect of all original work created by the Surveyor remains the property of the Surveyor. If the Client provides any information to the Surveyor in relation to the Services, the Client expressly grants the Surveyor a licence to use, without attribution of authorship, and dispose of the information to third parties. The Client agrees that the Surveyor may provide a copy of any Report, including any information provided by the Client, to third parties at the discretion of the Surveyor.
8. Liability The liability of the Surveyor to the Client arising as a result of any once incident for breach of contract (including breach of a fundamental term), any failure to follow instructions given to it by the Client, any negligence whether gross or not, breach of any warranty whether such warranty is express, implied or implied by any legislation in force in Australia, or howsoever arising, shall be limited to any of the following as determined by the Surveyor (a) The supplying of the Services again;
(b) The cost of having the same Services supplied again; or (c) The amount of $1000.00
9. Indemnity The Client agrees to indemnify the Surveyor with respect to any claim or liability to any other person or entity, including, but not limited to owners, charterers of third party vessels, subsequent purchasers of vessels, owners or occupiers of any premises, for any liability arising from or in connection with the Surveyor undertaking the Services.
10. Surveyor’s employees, servants, agents or sub-contractors
10.1 The Surveyor, in addition to acting for itself, also acts as agent of and trustee for each of its employees, servants, agents and sub-contractors so they are entitled to the full benefit of these terms and conditions, including any exclusions or limitations of liability. 10.2 Even if the Surveyor breaches any of these terms and conditions, all rights, immunities and limitations of liability in these terms and conditions continue to have their full force and effect in all circumstances and conditions, all rights, immunities and limitations of liability in these terms and conditions continue to have their full force and effect in all circumstances.
10.3 The Client agrees to hold harmless and indemnify all of the Surveyor’s employees, servants, agents and sub-contractors in respect of any and all liability to the Client or any other person that arises in connections with undertaking the Services, including liability in tort (including negligence), contract, bailment or otherwise.
11. Alterations No employee, servant, agent or subcontractor of the Surveyor has the Surveyor’s authority to alter or vary these conditions.
12.1 If the Surveyor is liable for damages arising from or connected to the Services, no claim may be made unless notice of the claim is lodged within three (3) months
12.2 Any claims against the Surveyor by the Client shall be deemed to be waived and absolutely time barred upon the expiry of one year from the submission date of the Report to the Client or completion of the Services, whichever is sooner.
13. Jurisdiction and law This document is governed by the law in force in Queensland and any dispute shall be referred to the exclusive jurisdiction of the Queensland Court.