Terms & Conditions

TERMS & CONDITIONS OF SERVICE

Devlin Marine Services PTY LTD ACN 25 654 236 905 (DMS)

The supply of all goods and services by DMS to the Owner is subject to these Terms and Conditions. These Terms and Conditions:

By paying the deposit to DMS, or otherwise instructing DMS to proceed to provide its services, you are deemed to have accepted these terms and conditions and agree to be bound to them.

1. Services

(A). DMS is engaged by the Owner to undertake an inspection of the Mooring Apparatus and perform maintenance on the Mooring Apparatus.
(B). The Owner acknowledges and agrees that DMS is authorized to undertake all necessary repair and replacements to the mooring apparatus and associated products and equipment as considered necessary by DMS to ensure DMS is satisfied with the state of repair and/or safety of the mooring apparatus having regard to the Vessel and to issue a report confirming the service of the Mooring Apparatus.

For example only, if DMS considers any part of the Mooring Apparatus is not appropriate for the Vessel or location of the Mooring Apparatus,

DMS will upgrade the Mooring Apparatus the costs of which the Owner shall be liable to pay to DMS.

(i). DMS will use due care in relation to the moving of the Vessel if required however DMS shall not be liable whether in contract, tort or otherwise for any loss, theft or any other damage of whatsoever nature caused to any Vessel or other property of the Owner or others claiming through the Owner except to the extent that such loss , theft or damage is caused by negligence or willful act of DMS or its agents.
(ii). At the completion of works by DMS, DMS will re-Secure the Vessel to the Mooring Apparatus and it shall be the Owner’s responsibility to ensure that the Vessel has been re-Secured in accordance with the Owner’s requirements.

2. Fees and Charges

(A). The price of goods or services supplied by DMS shall be the price quoted verbally or notified in writing by DMS at the date of entry into any agreement with the Owner.
(B). Although DMS endeavors wherever possible to notify you in writing or verbally of the price, it may not always be possible to do so where, for example (but without limitation), during the provision of the Services, it becomes clear further repairs or replacement of products is necessary and DMS is unable to contact the Owner.
(C). The Owner acknowledges and agrees that the Owner is liable for, and undertakes to DMS to pay DMS on receipt of an invoice, the cost of all repair and replacement of goods and the service fee (if any) undertaken by DMS to bring the mooring apparatus up to the state of repair reasonably required by DMS.
(D). The Owner acknowledges and agrees that the Owner is liable for, and undertakes to DMS to pay DMS on receipt of an invoice, the cost of all repair and replacement of goods and the service fee (if any) undertaken by DMS to bring the mooring apparatus up to the state of repair reasonably required by DMS.
(E). Prices quoted by DMS are exclusive of Goods and Services Tax (GST) and the Owner will pay GST on the goods and services and other supplies made under this Contract to the extent that they are taxable supplies within the meaning of the A New Tax System (Goods and Services Tax Act) 1999.
(F). The Owner must pay for all goods and services supplied by DMS within 7 days of DMS issuing its invoice. If payment is not received by the due date for payment, then DMS reserves the right to charge interest on all unpaid amounts at the Pre-Judgment Interest Rate published by the District Court of New South Wales.

3. Lead Times

(A). The Owner acknowledges that lead times may be affected by matters outside the control of DMS including but not limited to weather, sea conditions, delays by its suppliers, product availability and notices or orders issued by any competent Authority.
(B). Any lead times provided by DMS in relation to installation, inspection, servicing and maintenance are estimated dates and times only and the failure of DMS to install, inspect, service or maintain on that date shall not render DMS liable to the Owner, nor entitle the Owner to cancel any order or agreement unless agreed in writing by DMS.

4. Lien and Title

(A). In consideration for any works to be undertaken by DMS on the mooring apparatus, DMS shall have a lien on the Vessel, its fittings and contents for payment of all monies due to DMS by the Owner.
(B). The Owner warrants that it is the beneficial owner of the Vessel and that it is absolutely entitled to grant this security interest. The Owner hereby charges in favor of DMS all of its personal property present and future and wheresoever situated to secure payment to DMS of all amounts payable (or which may become payable to DMS) under these Terms and Conditions.
(C). Title to all products supplied by DMS pursuant to services provided under these Terms and Conditions, shall not pass to the Owner unless and until the Owner has paid DMS for the product and the services associated with the products supplied.

5. Change of Vessel at Mooring Apparatus

6. Owner to insure

(C). The Owner assumes all risk and liability for and in respect of the Mooring Apparatus and for all loss, damage, injury or death caused to persons or property howsoever arising from the use of the Mooring Apparatus. Notwithstanding whether or not the Owner has effected insurance with respect to the Vessel, the Owner assumes all risk and liability for, and shall indemnify and release DMS against and from, any Claims, loss, damage and costs relating to the Vessel and/or Mooring Apparatus.
(D). If it is discovered that the Vessel is not insured despite the above representation, then the Owner acknowledges and agrees that it is a condition precedent to DMS providing its services that the Owner assumes, and the Owner hereby accepts, all risk and liability and indemnifies DMS for any and all liability for any and all loss incurred by the Owner arising from apparatus failure howsoever arising including (but not limited to) adverse weather conditions, natural disaster, oversized vessels using the Mooring Apparatus, vandalism or the Owner’s negligence or failure to adequately maintain the Mooring Apparatus and any loss for which an insurer would otherwise have indemnified the Owner (and/or DMS).

7. Limitation of Liability and indemnity

(A). The Owner is responsible for maintaining the Mooring Apparatus in good repair and condition following the service by DMS.
(B). The Owner acknowledges that any installation under water may be subject to severe corrosion, erosion of the seabed, weathering, rusting, chafing and damage resulting from the effects of water, salt, oxidation, bottom conditions, tidal flow, other vessels and marine flora and fauna. It is the obligation of the Owner to maintain all ropes, chains, shackles and other fixing devices attached to the Mooring Apparatus in good and serviceable repair and DMS is not responsible in relation to any failure of the Mooring Apparatus or damage to the Vessel or consequential damage resulting from the fair wear and tear thereof.

(i). DMS shall not be liable to the Owner or any third party whether in contract, tort or otherwise for any loss, theft or any other damage of whatsoever nature caused to the Vessel or any other vessel or other property of the Owner (or others claiming through the Owner) caused as a result of the failure by the Owner to properly service or maintain the Mooring Apparatus and all ancillary products and equipment except to the extent that such loss, theft or damage is caused by negligence or wilful act of DMS or its agents.
(ii). All conditions and warranties, express or implied, whether arising by law or otherwise, as to the condition, suitability, quality, fitness or safety of the services provided by DMS are hereby excluded to the full extent permitted by law. The Owner acknowledges that DMS has not given any such warranty, express or implied, whether arising by law or otherwise, as to the condition, suitability, quality, fitness or safety of the Mooring Apparatus (before or after the provision of DMS of its services). Nothing in these Terms and Conditions shall remove or abrogate the non-excludable warranties or guarantees provided under the Competition and Consumer Act 2010 (Cth) (CCA) or any similar state law applied to these Terms and Conditions.
(iii). If DMS is liable for a breach of a condition or warranty implied by the CCA, then to the greatest extent permitted, DMS’s liability to the Owner is limited to (at the discretion of DMS) either:

(iv). Except as provided for in these Terms and Conditions, DMS 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 wilful act of the Owner, its employees, agents or sub-contractors.
(iv). The Owner hereby indemnifies DMS against all claims and demands whatsoever by whosoever 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 wilful act of DMS, its employees, agents or subcontractors. Subcontracting and indemnity

8. Entire agreement

The parties acknowledge that these Terms and Conditions constitute the entire agreement between the parties in relation to the subject matter of it.

9. Governing Law

These Terms and Conditions shall be construed and interpreted in accordance with the laws of New South Wales.

10. Definitions

“Authority” means any body constituted for purposes of the management or regulation of enclosed waters and includes, but is not limited “Port Corporation”

and “NSW Maritime” as defined under relevant NSW law including but not limited to the Ports and Maritime Administration Act 1995, the Marine Safety Act 1998,

Marine Safety Regulation 2016 (and their replacements from time-to-time).

“Claims” means all present, contingent and future claims and liability (including claims or liabilities under contract, tort or statute and any claims under State or Commonwealth laws and/or legislation).

“Mooring Apparatus” means a mooring, or a structure or an apparatus licensed to the Owner and used to Secure any floating object or apparatus in navigable waters whether or not that structure or apparatus is itself beyond the shores of the water, and whether or not that structure or apparatus is, or is proposed to be, used for any other purpose and includes all parts/components of the mooring structure/apparatus.

“Owner” means the person or entity described in any Application made to DMS for the service or maintenance of a Mooring Apparatus and is, unless otherwise notified in writing, the licensee for the Mooring Apparatus.

“Secure” in relation to a vessel, floating object or apparatus means to retain in a location by an anchor, or by attachment to any object, structure or physical feature which is in, on the bed of, or in the vicinity of the shore of, any waters, and “secured” has a corresponding meaning.

“Service” and/or “maintenance” shall include the installation and replacement of components of a Mooring Apparatus.

“Vessel” shall mean a Yacht, Motor Boat, Cruiser, Tender or any other form of boat and includes “Floating object” as defined in the Management of Waters and Waterside Lands Regulations (NSW) owned by the Owner.

10. Interpretation

In these Terms and Conditions unless the context indicates a contrary intention—

(A). The singular number includes the plural and vice versa;
(B). References to any legislation includes any legislation which amends or replaces that legislation and any subordinate legislation;
(C). A person includes their executors, administrators, successors, substitutes (for example, persons taking by novation) and assigns;
(D). A person includes companies and corporations and vice versa;
(E). Except in the dictionary, headings do not affect the interpretation of these Terms and Conditions;
(F). The construction least favourable to the party responsible for drafting these Terms and Conditions will not be adopted against that party merely because that party put forward the first draft of these Terms and Conditions;
(G). Amounts of money are expressed in Australian dollars unless otherwise expressly stated;
(H). A reference to a document includes any variation or replacement of it;
(i). A reference to any thing includes the whole or each part of it; and
(ii). Where time is to be calculated by reference to a day or event, then that day or event is excluded.

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Terms & Conditions