General Terms and Conditions of Engagement – Pacific Fleet Engineering
STANDARD TERMS AND CONDITIONS FOR SUPPLY OF SERVICES
In this document the following words shall have the following meanings:
1.1. Customer means any person who engages, utilises, requests, or otherwise, the Services of Pacific Fleet Engineering.
1.2. Legislative Requirements means acts, ordinances, regulations, by-laws, orders, awards, and proclamations of the Commonwealth and the state or territory applicable to the Work, the Yard, and the vessel, including any amendment or replacement of the above.
1.3. Pacific Fleet Engineering means Pacific Fleet Engineering Pty Ltd ABN 88 626 378 032, also referred to as PFE, or any of its subsidiaries or affiliate entities as noted in contracts or agreements, whether written or oral, from time to time;
1.4. Pacific Fleet Engineering Yard means the facility located at 50 Paringa Road, Murarrie, Queensland, or any other location that Pacific Fleet Engineering is conducting Services.
1.5. Services means any towage, movement, transport, storage, repairs, labour, or work whatsoever, or any form of supply of material or equipment made by Pacific Fleet Engineering to the Customer.
1.6. Terms and Conditions means the terms and conditions of supply set out in this document and any special terms and conditions agreed in writing by Pacific Fleet Engineering.
2.1. These Terms and Conditions shall apply to all contracts, agreements, or arrangements for the supply of Services by Pacific Fleet Engineering to the Customer, whether in writing or oral, and shall prevail over any other documentation or communication from the Customer.
2.2. Any variation to these Terms and Conditions shall be inapplicable unless agreed in writing by Pacific Fleet Engineering.
2.3. In the event of any inconsistency between these Terms and Conditions and any specific terms of a separate written contract, then the specific terms of the contract will prevail.
3. PRICING AND PAYMENT
Unless agreed otherwise in writing:
3.1. all pricing is quoted exclusive of GST; and
3.2. all monies payable to Pacific Fleet Engineering must be paid in full within 14 days of the date of an invoice; and
3.3. if Pacific Fleet Engineering has requested a deposit, no work shall commence until such deposit has been paid.
4. PACIFIC FLEET ENGINEERING’S RESPONSIBILITY
Pacific Fleet Engineering warrants that:
4.1. Any Services supplied will be done so with reasonable skill and care, and to a reasonable standard in accordance with recognised standards and codes of practice.
4.2. Pacific Fleet Engineering accepts all responsibility for the condition of Pacific Tug vessels, tools and equipment used in their own performance of the Services.
4.3. Any time specified by Pacific Fleet Engineering for provision of the Services is an estimate only and Pacific Fleet Engineering will not be liable for any loss or damage incurred by the Customer as result of any delay. However both parties agree that they shall make every endeavour to enable the Services to be
provided in a timely manner.
5. CUSTOMER’S RESPONSIBILITY
5.1. The Customer warrants to Pacific Fleet Engineering that the Customer is the owner, or the authorised agent of the owner, of any vessel, goods, or property that is the subject matter of Services provided by Pacific Fleet Engineering.
5.2. The Customer shall keep Pacific Fleet Engineering notified of;
5.2.1. Their correct name; and
5.2.2. Postal address, telephone numbers, fax, or email information; and
5.2.3. All information reasonably required to undertake the services engaged.
5.3. The Customer shall effect and maintain insurance sufficient to cover, at no cost to
Pacific Fleet Engineering the following insurance. And shall make such insurances available for viewing by Pacific Fleet Engineering, at the request of Pacific Fleet Engineering;
5.3.1. Protection and Indemnity Insurance, including public liability insurance;
5.3.2. Hull and Machinery Insurance, incorporating ports risks cover to the value of the vessel; and
5.3.3. Workers compensation cover for all of the Customer’s personnel who access Pacific Fleet Engineering;
5.3.4. Insurance must be sufficient to provide full coverage for such loss and damage for which the Customer may be held liable to Pacific Fleet Engineering.
5.4. The Customer shall cooperate fully in reviews, inspections, investigations, or audits, carried out by or on behalf of Pacific Fleet Engineering, to the extent required by applicable Legislative Requirements.
6. HEALTH AND SAFETY
The Customer must ensure that personnel of the Customer, and any sub-contractor engaged by the Customer:
6.1. Comply with the Pacific Fleet Engineering Rules and Regulations including those relating to;
6.1.1. the Pacific Fleet Engineering Health Safety and Environment (HSE) Policies and Procedures;
6.1.2. any safe work method statements prepared by Pacific Fleet Engineering in consultation with the Customer;
6.1.3. any lawful directions issued by Pacific Fleet Engineering relating to health and safety;
6.1.4. the Legislative Requirements.
6.2. Do not disrupt or hinder the operation of existing operations at Pacific Fleet Engineering.
7. ENVIRONMENTAL PROTECTION
The Customer acknowledges and agrees that:
7.1. The Customer will abide by all legislative requirements relating to environmental protection and prevention of pollution.
7.2. The Legislative Requirements impose significant fines on vessel masters and owners for pollution of any kind entering the harbour waters, stormwater drains, docks or sewage system.
7.3. Any discharge of sewage ashore to be undertaken at the Pacific Fleet Engineering Yard must be organized and undertaken in accordance with the Pacific Fleet Engineering environmental policies and procedures.
7.4. Pacific Fleet Engineering reserves the right to inspect vessel tanks for contaminants where it is observed or suspected that contamination of the storm water drains, the harbour in the vicinity of the vessel or the Facility has taken place
7.5. The Customer will abide by all Legislative Requirements governing quarantine change over ballast procedures for vessels and operators, and the requirements to discharge any ballast water that has been taken from an unacceptable external source before entering harbour.
8.1. The Customer authorises Pacific Fleet Engineering to sub-contract all or any part of its rights and/or obligations, including using the services of others where necessary to ensure compliance with lawful authority requirements.
9. LIMITATION OF LIABILITY
9.1. In no circumstances shall Pacific Fleet Engineering’s liability to a customer include any sum in respect of loss of hire, profit, use of business, or any similar direct, indirect or consequential loss, damage or expense, or any claim in bailment.
9.2. Nothing in these Terms and Conditions shall exclude or limit the liability of Pacific Fleet Engineering for death or personal injury.
9.3. Pacific Fleet Engineering shall only be liable to Customers when proven loss or damage has been caused by the gross negligence or wilful default of Pacific Fleet Engineering or that of those for whom they are responsible.
9.4. Unless otherwise agreed in writing, Pacific Fleet Engineering shall not have any supervisory or security obligations toward vessels stored at Pacific Fleet Engineering.
9.5. Except as might otherwise be required by statute, any damages payable by Pacific Fleet Engineering in relation to the Services shall not exceed the value of the Services as quoted.
10.1. The Customer agrees to pay a cancellation fee to Pacific Fleet Engineering in the event the Customer cancels any agreed service without reasonable notice.
10.2. For the purpose of clause 10.1, reasonable notice will be determined by Pacific Fleet Engineering with regard to the nature and scope of the Services and the level of preparation required to allocate resources to perform the Services.
10.3. For the purpose of clause 10.1, the cancellation fee will be calculated at 10% of the cost value of the Services as reasonably calculated by Pacific Fleet Engineering.
10.4. If at any time the Customer is in breach of any obligation, Pacific Fleet Engineering may suspend or terminate the provision of Services to the Customer and any of its other obligations under the terms and conditions. Pacific Fleet Engineering will not be liable to the Customer for any loss of damages the Customer suffers because Pacific Fleet Engineering exercised its rights under this clause.
11. FORCE MAJEURE
11.1. Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control.
11.2. For the purposes of clause 11.1 such events or circumstances include but are not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply.
11.3. Either party impacted by the event or circumstance shall be entitled to a reasonable extension of its obligations.
11.4. Where the event or circumstance frustrates the provision of Services, Pacific Fleet Engineering are entitled to terminate the contract by written notice to the Customer.
12. PACIFIC FLEET ENGINEERING’S PROPERTY
12.1. The contents of Pacific Fleet Engineering’s website may not be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means without the prior express written permission of Pacific Fleet Engineering.
12.2. Any tool, equipment, component, material, vessel, or property in general of Pacific Fleet Engineering used in connection with the Services remains the property of Pacific Fleet Engineering unless such item is paid for and Pacific Fleet Engineering specifically consents to its sale and the passing of title in writing.
12.3. The Customer agrees to reimburse Pacific Fleet Engineering for any reasonable costs incurred in recovering Pacific Fleet Engineering’s property.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed, with the invalid, illegal or unenforceable provision eliminated.
14. GOVERNING LAW
14.1. These Terms and Conditions shall be governed by and construed in accordance with the law of Queensland and the parties hereby submit to the exclusive jurisdiction of the Queensland courts.
14.2. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the AMTAC Arbitration Rules. The seat of the arbitration shall be Brisbane, Australia. The language of the arbitration shall be English.
14.3. Notwithstanding 14.2 parties may agree at any time to refer to mediation any dispute arising out of or in connection with this Contract