These Terms and Conditions of Supply govern the provision of yacht management, maintenance, and related services by AusCoast Yacht Management Pty Ltd to its customers. By engaging ACYM’s services, you agree to be bound by these Terms.
In this Agreement, unless the contrary intention appears, the following words have the following meanings:
ACYM means Auscoast Yacht Management Pty Ltd ACN 639 006 447.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day on which banks are open for business on the Gold Coast in Queensland, other than a Saturday, Sunday or public holiday.
Claim means any claim, cause of action, Liability, demand, action, remedy, suit, injury, indemnity, damage, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise whether present, unascertained, immediate, future or contingent.
Client Onboarding Document means the document provided by or on behalf of ACYM to the Customer which records the Customer’s details, Vessel details, billing information, applicable rates, fees and charges, and any operational, compliance or other information relevant to the Vessel or the Services.
Completion means the date ACYM notifies the Customer that the Services have been completed.
Consequential Loss means but is not limited to one or more of the following: loss of bargain; loss of revenues; loss of reputation; indirect loss; loss of profits; consequential loss; loss of actual or anticipated savings; lost opportunities, including opportunities to enter into arrangements with third parties; or loss or damage in connection with claims against the Customer by third parties.
Contractor means any third party contractor, consultant, or service provider engaged by ACYM, from time to time at its sole discretion, to assist in the performance of the Services under this Agreement.
Customer means the person or entity to whom a Quote is issued to.
Event of Default means: (i) if the Customer fails to pay the Price in accordance with this Agreement or fails to pay any other money payable under this Agreement as and when due; (ii) the Customer breaches a term of this Agreement and fails to remedy that breach within seven (7) days after receiving a written notice from ACYM to do so; (iii) if the Customer has provided misleading, false or inaccurate statements to ACYM which, in ACYM’s opinion, has caused a material effect on its ability to provide the Services or on the Customer’s ability to pay the Price; or (iv) the Customer suffers an Insolvency Event.
Exclusions means: work to be carried out on an area of the Vessel that is outside the Services described in the relevant Quote; after-hours or overtime work; structural repairs to the Vessel; the repair or refinish of any surface or panel of the Vessel unless specified in the Customer’s Quote; the installation or repair to the Vessel (or any part of it) to increase its performance, unless expressly specified in the relevant Quote; and any boatyard related costs, charges, fees, tariffs, expenses (including, but not limited to, berthing, cranage, forklifting, haul-out, blocking, hard-standing, shedding, connections, electricity, water, waste disposal, security, transport, premises, communication, storage, parking fees, ground rent, yard margins or markups of any sort, cooling tower, heating, ventilation, air-conditioning, water closet, laundry or any other boatyard amenity costs).
Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes: an act of God or a disaster (whether natural or man-made) including fire, flood, lightning or earthquake; riot, civil commotion, act of public enemies, national emergency or government declaration or direction; epidemic, pandemic or quarantine restriction; supply shortage or strike, lock out, stoppage, labour dispute or shortage including industrial disputes involving ACYM’s suppliers.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means the occurrence of any one or more of the following events in relation to any party: if the party is an individual, the party is a bankrupt, or has signed an authority under section 188 of the Bankruptcy Act 1966 (Cth); an application is made to a court for an order or an order is made that the party be wound up; an application is made to a court for the appointment of a liquidator, provisional liquidator, receiver or other administrator; a resolution is passed to appoint an insolvency administrator; the party enters into a scheme of arrangement or composition with creditors; the party resolves to appoint an administrator or wind itself up; the party is or states that it is unable to pay its debts as and when they fall due; the party takes steps to obtain protection from its creditors under any applicable legislation; or any secured creditor of the party enforces its security.
Intellectual Property means all intellectual property and proprietary rights (whether registered or unregistered) owned or used by the relevant party including without limitation trade marks, logos, confidential information, manuals, specifications, all patents, patent applications, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, software and computer programs, know-how, registered designs, design rights, copyright and similar intellectual property rights.
Law includes any law, whether statute or common law (including the laws of negligence and nuisance and principles of equity), ordinance, regulation, by-law, order or other determination of any government authority or statutory authority and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them.
Liability means any liability or obligation (whether actual, contingent or prospective), including for any Loss irrespective of when the acts, events or things giving rise to the liability occurred.
Loss means any loss, damage, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Material Affect means a change in circumstances which in the professional judgment of ACYM requires an increase in the Price over and above the Price.
Personal Property means all of the Customer’s present and after-acquired personal property to which the PPSA applies and all of the Customer’s present and future rights in relation to any personal property to which the PPSA applies, including all PPSA retention of title property (as defined in the PPSA).
Pre-existing Condition has the meaning given to it in clause 8(c)(i) of this Agreement.
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Security Register under the PPSA.
Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements of section 156–5 GST Act.
Security Interest means: security interest as defined in the PPSA; security for payment of money, performance of obligations or protection against default (including a mortgage, bill of sale, charge, lien, pledge, hypothecation, encumbrance, trust, power or title retention arrangement, finance lease, right of set-off, assignment of income, garnishee order or monetary claim and flawed deposit arrangements); and any preferential interest or arrangement of any kind giving a person priority over claims of other persons with respect to any property or asset.
Services means the services provided by ACYM to the Customer in connection with the Vessel, as described in a Quote, and includes any associated, incidental, additional or varied services provided by ACYM under this Agreement.
Site means the location at which the Vessel is berthed, stored or otherwise located, as specified in the relevant Quote.
Structural Repairs means any works or repairs to the structure of the Vessel (including but not limited to those that are required to be carried out prior to the application of protective or decorative coatings by ACYM or to enable ACYM to provide the Services).
Tax Invoice has the meaning given to the term ‘tax invoice’ in the GST Act.
Quote means a quotation provided by ACYM to the Customer for the Services.
Vessel means the vessel to which the Services relate, as specified in the relevant Quote.
Price means the amount payable by the Customer for the Services as specified in the relevant Quote, and includes any other amounts payable under this Agreement.
These Terms and Conditions of Supply (‘Terms’) apply to the supply of any Services offered by ACYM to the Customer from time to time.
Each accepted Quote pursuant to clause 3(c), together with these Terms, constitutes the entire agreement between ACYM and the Customer in respect of the relevant Services (‘Agreement’). To the extent of any inconsistency between a Quote and these Terms, the Quote prevails to the extent of the inconsistency in relation to the relevant Services only.
A Quote shall remain open for acceptance for the period stated in the Quote, or, if no period is stated, for a period of seven (7) days from the date of issue. Despite anything to the contrary, ACYM may withdraw, amend or replace any Quote at any time prior to it being accepted by the Customer.
A Quote is to be deemed accepted by the Customer by: written acceptance, including by email or electronic approval; instructing ACYM to commence the proposed Services; paying any deposit or invoice issued in relation to the Quote; providing pre-approved funds requested by ACYM; or otherwise acting in a manner consistent with acceptance of the Quote.
Unless expressly agreed in writing, any Quote is an estimate only and is based on the information available to ACYM at the time of quoting. ACYM may adjust its pricing where: the actual condition of the Vessel differs from that reasonably apparent at the time of quoting; latent conditions, defects or additional work are identified; access, timing, scope, materials or third party costs change; or the Customer requests additional or varied Services.
The Customer acknowledges that to the extent permitted by Law, no cooling off period applies to any contract formed under this Agreement.
The Customer must pay ACYM the Price for the Services, together with any other amounts payable under this Agreement, without set-off or deduction, in accordance with the applicable Quote, invoice, or other payment terms notified by ACYM.
ACYM may issue invoices: in advance; on a staged or progress basis; on completion of the Services; as costs are incurred; or at such other times as stated in the Quote or reasonably required by ACYM.
If the Customer disputes any invoice, the Customer must notify ACYM in writing within three (3) Business Days of receipt of the invoice, identifying the disputed amount and the reasons for the dispute. All undisputed amounts must be paid in accordance with this Agreement.
Any payment must be paid by EFT, cash, or any other payment method approved by ACYM. If paid by cheque, the payment shall only be deemed received when cleared funds are received by ACYM. To the extent permitted by Law, ACYM may charge any merchant or transaction fees incurred in connection with payment.
Without limiting any of ACYM’s other rights under this Agreement or at Law, if any amount payable by the Customer is not paid when due, ACYM may charge interest on the overdue amount at the rate of 6.5% per annum, calculated daily from the date the payment was due until the date payment is received by ACYM.
If the Customer fails to pay any amount owing to ACYM when due, ACYM may suspend, or refuse to commence or continue the Services until all overdue amounts are paid in full.
In addition to the Price, the Customer must pay all disbursements and third-party costs incurred by ACYM in connection with the Services, including freight, delivery and courier charges, either on demand or as invoiced by ACYM.
Unless otherwise agreed in writing, all time charged by ACYM personnel is calculated from the time of departure from, and until return to, ACYM’s premises. The Customer acknowledges and agrees that travel time forms part of the Services and is charged at ACYM’s applicable hourly rates.
Where ACYM personnel are required to travel outside the local area (including inter-city or interstate travel), ACYM may apportion the costs of such travel across multiple customers or vessels serviced at the relevant location. The Customer must pay its reasonable share of those travel costs, as determined by ACYM acting reasonably.
ACYM reserves the right to review and amend its pricing for Services at the end of each financial year.
ACYM may, at its discretion, engage Contractors, or obtain goods and services from third parties in connection with the Services. Unless otherwise agreed in writing, ACYM may apply a margin to the cost of any subcontracted work, goods or services, as disclosed in the Client Onboarding Document. ACYM will, upon request, provide copies of relevant Contractor or supplier invoices, including details of any applicable trade discounts. The Customer acknowledges and agrees that any coordination, management, or supervision of Contractors by ACYM, which is outside the ordinary scope of a vessel manager, may be charged at ACYM’s applicable rates, as specified in the Client Onboarding Document.
The Customer may approve an amount which ACYM is authorised to expend on behalf of the Customer in connection with the Vessel, including for parts, components, consumables, urgent works and other incidental requirements (‘Pre-Approved Spend’). Unless otherwise agreed in writing, the Pre-Approved Spend will be the amount approved by the Customer or as specified in the Client Onboarding Document, as amended from time to time.
Where a Pre-Approved Spend has been approved, the Customer authorises ACYM to incur costs and procure goods and services on the Customer’s behalf up to that amount without obtaining further approval. ACYM may invoice for, or deduct from any funds held on account, any amounts incurred under the Pre-Approved Spend.
If no Pre-Approved Spend is approved, ACYM will use reasonable endeavours to obtain quotations and seek the Customer’s approval before incurring costs. The Customer further acknowledges and agrees that any services performed by ACYM’s vessel managers in connection with obtaining quotations, liaising with suppliers, or otherwise progressing the Services may be charged at ACYM’s applicable hourly rates, pursuant to the Client Onboarding Document.
The Customer must ensure that the Vessel is in a safe and seaworthy condition and is fit for the purpose of receiving the Services. ACYM reserves the right to refuse to provide, or to suspend, any Services if ACYM reasonably considers the Vessel is unsafe, unseaworthy, or otherwise unfit to receive the Services. The Customer is responsible for all costs of ensuring the Vessel is in a condition suitable to receive the Services.
ACYM will use reasonable endeavours to identify Pre-existing Conditions prior to commencing Services. Where a Pre-existing Condition is identified prior to commencement of the Services, ACYM will notify the Customer as soon as practicable and may adjust the Price accordingly. Where a Pre-existing Condition is identified during the course of providing the Services, ACYM will notify the Customer as soon as reasonably practicable and will not be liable for any damage to the Vessel or its systems arising from or in connection with a Pre-existing Condition.
The Customer acknowledges and agrees that ACYM will not carry out Structural Repairs unless such work is expressly agreed in writing between ACYM and the Customer.
The Customer must: (a) provide ACYM with all information and documentation reasonably required to enable ACYM to perform the Services; (b) ensure all information provided to ACYM is accurate, complete and not misleading; (c) promptly respond to any requests for information, approvals or instructions from ACYM; (d) provide ACYM with safe and timely access to the Vessel and to any relevant third parties, as required; (e) obtain and maintain any permits, licences or consents required in connection with the Services; (f) comply with all applicable Laws in connection with the Vessel and the Services; and (g) notify ACYM of any known or suspected Pre-existing Conditions or defects in the Vessel prior to commencement of the Services.
If the Customer fails to comply with its obligations under this clause 9, ACYM may, without limiting any other rights available to it: suspend the provision of Services; charge additional costs incurred as a result of the Customer’s failure; or terminate this Agreement on written notice to the Customer.
ACYM may vary the Services or the Price where: the Customer requests additional or varied Services; the actual scope, nature, or complexity of the Services is different from that contemplated by the Quote; or where ACYM is required by Law or a regulatory authority to make changes to the Services.
Where reasonably practicable, ACYM will notify the Customer of any proposed variation to the Services or the Price prior to carrying out the varied work. The Customer’s acceptance of the varied Services, or continued instruction to ACYM to proceed, will constitute acceptance of the variation and the adjusted Price.
ACYM warrants that it will provide the Services with reasonable care and skill, and in accordance with applicable Law.
Nothing in this Agreement limits, excludes or modifies any guarantee, condition, warranty, right or remedy which cannot be limited, excluded or modified under Law, including under the Australian Consumer Law.
Subject to the above, ACYM makes no other representations or warranties, express or implied, in relation to the Services, including any warranty of merchantability or fitness for a particular purpose, to the fullest extent permitted by Law.
The Vessel and all its contents remain at the Customer’s risk at all times, including while in the care, custody or control of ACYM for the purpose of receiving the Services. The Customer is responsible for ensuring that adequate insurance cover is maintained for the Vessel and its contents at all times.
Subject to clause 14, ACYM’s liability to the Customer for any Claim arising out of or in connection with this Agreement or the Services is limited to: the re-supply of the relevant Services; or the refund of amounts paid by the Customer in respect of the relevant Services, at ACYM’s election.
ACYM shall not be liable for any Loss or damage to the Vessel, its equipment, fixtures, fittings, rigging or contents arising from or in connection with: Pre-existing Conditions; fair wear and tear; the acts or omissions of the Customer or any third party; Force Majeure Events; or circumstances beyond the reasonable control of ACYM. ACYM is not liable for any Consequential Loss suffered by the Customer.
ACYM holds public liability insurance of not less than AUD $10,000,000 per occurrence. ACYM will provide evidence of such insurance to the Customer upon reasonable request.
If ACYM provides Services on credit or retains title to any goods supplied, the Customer grants ACYM a Security Interest in the relevant goods and agrees that ACYM may register that Security Interest on the PPSR. The Customer must promptly do all things and sign all documents reasonably required to enable ACYM to register and perfect its Security Interest. The Customer irrevocably appoints ACYM as its attorney to do anything the Customer is required to do but fails to do under this clause.
To the extent permitted by the PPSA, the Customer waives its right to receive any notice that ACYM is required to provide under the PPSA (including a verification statement). The Customer agrees that sections 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA do not apply to this Agreement.
ACYM will not be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure is caused or contributed to by a Force Majeure Event. ACYM will use reasonable endeavours to minimise the impact of any Force Majeure Event and will notify the Customer as soon as reasonably practicable of any such event and its expected impact on the Services.
If a Force Majeure Event continues for a period exceeding 30 days, either party may terminate this Agreement on written notice to the other party, without liability (other than for amounts already due and payable).
To the maximum extent permitted by Law, ACYM’s total aggregate liability to the Customer for all Claims arising out of or in connection with this Agreement or the Services (whether in contract, tort, statute or otherwise) is limited to the total amount of the Price paid by the Customer to ACYM in the three (3) months immediately preceding the event giving rise to the relevant Claim.
ACYM excludes all liability to the Customer for any Consequential Loss arising out of or in connection with this Agreement or the Services, whether or not ACYM was aware of or could have foreseen such loss.
All Intellectual Property created, developed or produced by ACYM in connection with the Services, including reports, recommendations, plans, designs, specifications, and other works (‘ACYM Works’), vests in and remains the property of ACYM upon creation. ACYM grants the Customer a non-exclusive, non-transferable, royalty-free licence to use the ACYM Works solely for the purpose for which they were created.
The Customer must not reproduce, disclose, adapt, or use the ACYM Works for any other purpose without ACYM’s prior written consent. Nothing in this Agreement transfers or assigns to the Customer any of ACYM’s Intellectual Property rights.
Unless otherwise stated, the Price and all other amounts payable under this Agreement are exclusive of GST. If any supply made under this Agreement is subject to GST, the recipient must pay to the supplier, in addition to any consideration payable for the supply, an amount equal to the GST payable on that supply. The supplier must provide a Tax Invoice to the recipient for any taxable supply made under this Agreement, no later than when payment is due.
Either party may terminate this Agreement on not less than 30 days’ written notice to the other party. ACYM may terminate any specific Services Order on 14 days’ written notice to the Customer, without liability for any cost or loss arising from such termination (other than amounts already due and payable).
ACYM may terminate this Agreement immediately on written notice to the Customer if: the Customer fails to pay any amount owing when due and fails to remedy such default within 5 Business Days of written notice; the Customer commits a material breach of this Agreement and fails to remedy that breach within 14 days of written notice; or an Insolvency Event occurs in respect of the Customer.
Upon termination of this Agreement: all amounts owing by the Customer become immediately due and payable; ACYM may retain any goods or materials on the Vessel until all amounts are paid in full; and ACYM’s rights under this Agreement to the extent accrued before termination are preserved.
The Customer must not assign, novate, or otherwise transfer any rights or obligations under this Agreement without ACYM’s prior written consent. ACYM may assign or novate this Agreement, or any of its rights or obligations under it, to any related body corporate or to any person who acquires the whole or a material part of ACYM’s business, without the Customer’s consent.
If a dispute arises in connection with this Agreement, a party must not commence court proceedings (except to seek urgent interlocutory relief) unless it has first given written notice to the other party specifying the nature of the dispute and attempted to resolve it in good faith through negotiation. If the dispute is not resolved within 20 Business Days of that notice, either party may refer the dispute to mediation administered by a recognised mediation organisation, with the mediator to be agreed by the parties or, failing agreement, appointed by that organisation.
This Agreement is governed by the laws of Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and the Federal Court of Australia.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations, and understandings.
If any provision of this Agreement is invalid, illegal or unenforceable, that provision is to be read down to the extent necessary to give it valid operation, or if it cannot be so read down, severed, without affecting the remaining provisions.
A waiver of any provision of, or right under, this Agreement by a party is only effective if given in writing and signed by that party. A waiver by a party of a right arising on a breach of this Agreement does not constitute a waiver of a right arising on a subsequent breach.
Any notice under this Agreement must be in writing and sent by email or post to the address of the other party as last notified. Notices sent by email are deemed received when sent (unless the sender receives an automated delivery failure notice). Notices sent by post are deemed received three (3) Business Days after posting.