Terms & Conditions
FREMANTLE SHIPPING AGENCIES PTY LTD
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TERMS & CONDITIONS FOR THE PROVISION OF SERVICES
- DEFINITIONS & INTERPRETATION
- In these terms and conditions the following words and phrases shall have the following meanings:
“Agreement” shall mean any agreement comprised in writing between the Company and the Customer together with these terms and conditions.
“Company” means Fremantle Shipping Agencies Pty Ltd.
“Contract Price” shall mean the Contract Price for Services or Additional Services as calculated in accordance with Clause 4 or 8 as the case may be.
“Customer” means the party requesting the Services.
“Date for Payment for Services” shall mean the Date for Payment for Services as communicated in writing by the Company to the Customer.
“Full Port Agent Services” shall mean the Full Port Agent Services described in the Website.
“Insolvency Event” shall mean official management, receivership, liquidation, provisional liquidation, compromise, arrangement, amalgamation, administration (voluntary or otherwise), reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, bankruptcy or death.
“Owners Agent Services” shall mean the Owners Agent Services described in the Website.
“Owners Protective Agent Services” shall mean the Owners Protective Agent Services described in the Website.
“Party” or “Parties” shall mean the parties to this Agreement and may be used inter-changeably.
“Services” shall mean all services provided by the Company to the Customer.
“Sub-Contractor” shall include any person who pursuant to a contract or arrangement with any other person (whether or not the Company) supplies or agrees to supply the Services or any part thereof.
“Website” shall mean www.fremantleshipping.com.au
- A reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued pursuant to that statute.
- TERMS OF SUPPLY
The Services and Additional Services supplied by the Company to the Customer are supplied exclusively on these terms and conditions.
The Company shall provide to the Customer the Services for the Contract Price.
- CONTRACT PRICE
The Contract Price for the Services shall be the total of any price, prices or quotation agreed in writing between the Parties for the Services and shall be payable in accordance with Clause 7.
- FUNDS IN ADVANCE
The Customer shall pay to the Company such funds as the Company shall from time to time direct on account of anticipated costs to be incurred by the Company in providing the Services and the Company shall be entitled to deduct from such funds any monies owing by the Customer to the Company pursuant to this Agreement.
- COMPANY’S QUOTATIONS
Written quotation(s) provided by the Company shall remain valid for the period stated therein or, when no period is so stated, for a period of seven (7) days only after the date of the relevant quotation(s).
- TERMS OF PAYMENT AND MANNER OF PAYMENT
- Payment in full for the Services shall unless otherwise agreed between the Parties be made by the Customer on the Date for Payment for Services.
- Notwithstanding the provisions of Sub-Clause (a) hereof the Company shall be entitled to withhold provision of the Services unless payment in advance is made by the Customer.
- CESSATION OF SUPPLY OF SERVICES
In the event that the Customer refuses and/or fails to pay to the Company any monies due to the Company then the Company may immediately cease supplying and/or suspend any Services being provided by it to the Customer without prejudice to any other rights that it may have against the Customer including the right to recover from the Customer all direct and indirect costs incurred by the Company arising from such cessation in supplying or suspension of the Services.
- ACKNOWLEDGEMENT OF AGENCY
The Customer and the Company acknowledge and agree that all Services provided by the Company to the Customer shall be as agent for and on behalf of the Customer and the Customer shall be liable for all costs and expenses arising out of such Services.
- ACCESS TO VESSEL
In the case of Services to be provided relating to a vessel safe and ready access to the vessel shall be given by the Customer to the Company.
The Customer shall ensure that it informs the Company in advance of any hazards which may exist in relation to any vessel with respect to which Services are to be provided in the event that the Customer fails to comply with the provisions of this Clause the Company shall be entitled to forthwith suspend the provision of the Services to the Customer and the Customer shall be liable to reimburse the Company all monies lost or expended by the Company as a result of such suspension.
- SUPPLY OF INFORMATION AND ACCURACY OF INFORMATION
The Customer shall provide to the Company all information reasonably requested by the Company to enable the Company to provide to the Customer the Services and the Customer warrants the accuracy of all specifications, drawings, particulars, weights, dimensions and other information submitted by it or its servants or agents to the Company for the purposes of the Company supplying the Services and shall indemnify, keep indemnified and hold harmless the Company and its servants, agents and sub- contractors from and against all actions, suits, claims, demands, losses and damages whatsoever including consequential loss and damage and liabilities suffered or incurred by the Company arising out of any breach by the Customer of the warranty contained herein.
- DATE(S) FOR SUPPLY OF SERVICES
Any date(s) for the supply of Services provided by the Company to the Customer are estimates only and the Company shall not be liable for any loss, damage, delay or consequential losses occasioned to the Customer arising out of late or non-supply of the Services or any part thereof for any reason.
- RIGHT TO SUB-CONTRACT
- The Company and any Sub-Contractor shall be entitled to sub-contract on any terms the supply of the Services or any part thereof.
- The Customer undertakes that no claim or allegation shall be made, whether by the Customer or any other person whomsoever against any person (other than the Company) by whom (whether as sub-contractor, principal, employer, servant, agent or otherwise) the Services are supplied which imposes or attempts to impose upon such person any liability whatsoever whether or not arising out of negligence on the part of such person, and if such claim or allegation should nevertheless be made, then to indemnify, keep indemnified and hold harmless the Company and the person against whom such claim or allegation is made against the consequences thereof. Without prejudice to the foregoing and for the purposes of this Clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Agreement.
- EXTENSION OF EXEMPTIONS TO SUB-CONTRACTORS
Every exemption, limitation, condition and liberty herein contained and every right, exemption from liability, defence and immunity to which the Company is entitled hereunder shall extend to protect:
- all Sub-Contractors;
- every servant or agent of the Company or of a Sub-Contractor;
- every other person (other than the Company) by whom the Services are supplied;
- all persons who are or might be vicariously liable for the acts or omissions of any person falling within Sub-Clauses (a), (b) or (c) hereof and for the purposes of this Clause the Company is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them and all such persons and each of them shall to this extent be or be deemed to be parties to this Agreement.
The Customer hereby authorises any delay in the or provision of the Services which the Company may in its absolute discretion deem desirable or necessary in the circumstances.
If the Customer instructs the Company to use a particular method of supplying the Services the Company will give priority to that method (provided that it is legal to do so) but if it cannot conveniently be adopted by the Company or if such method involves costs which are unacceptable to the Company the Customer hereby authorises the Company to supply the Services by such other method or methods as the Company may determine in its absolute discretion.
- LIABILITY OF COMPANY
The provision of the Services shall be at the risk of the Customer and not the Company and the Company and its servants and agents shall not be liable in tort or contract or otherwise howsoever for any loss or damage of any nature or kind whatsoever including consequential or economic loss and including loss of or damage to any property whatsoever and including personal injury to or the death of any person whomsoever including the Customer its servants, agents or contractors caused by contributed to or arising out of or in the course of the supply or provision of the Services and whether or not such loss, damage, injury or death is due to the negligence or breach of contract on the part of the Company or its servants, agents or Sub-Contractors and this Clause shall apply to all such loss or damage or injury or death whether or not the same occurs in the course of performance by or on behalf of the Company of the Agreement or in events which are in the contemplation of the Company and/or the Customer or in events which are foreseeable by them or either of them or in events which could constitute a breach of this Agreement or a breach of a fundamental term thereof.
Unless otherwise agreed in writing by the Company and the Customer the Services to be supplied by the Company shall be as described in writing by the Company to the Customer.
No Agreement for the Services may be cancelled by the Customer except with the prior express written consent of the Company. The Customer indemnifies the Company from and against all losses, costs, damages and expenses, including consequential losses which may be suffered by the Company as a result of such cancellation.
The Company shall be entitled to terminate this Agreement immediately by notice in writing to the Customer if:
- any monies payable by the Customer to the Company are not paid strictly in accordance with this Agreement;
- the Customer suffers an Insolvency Event
- the Customer clearly indicates its intention not to perform this Agreement;
PROVIDED ALWAYS that the Company shall be entitled to recover any monies that relates to any Services performed up to the date of termination, together with any losses that the Company may suffer, or incur, by reason of the termination.
The Customer shall indemnify, keep indemnified and hold harmless the Company in respect of any actions, suits, claims, demands, damages, losses, costs, expenses and liabilities brought or made by any person whomsoever in respect of any personal injury to or the death of any person whomsoever or loss of and/or damage to any property whatsoever arising out of or as a consequence of any accident or circumstance involving the Services and whether or not such loss or damage or injury or death arises out of breach of contract or negligence on the part of the Company or its servants, agents or Sub-Contractors.
- EARLY TERMINATION BY THE COMPANY
The Company may give notice in writing to the Customer that it will not provide the Services and the Company shall not be under any liability whatsoever to the Customer to provide the Services and shall not be liable for any loss or damage suffered or incurred by the Customer as a result.
- CONDITIONS TO HAVE FULL FORCE IN ALL CIRCUMSTANCES
All rights, immunities and limitations of liability in these terms and conditions shall continue to have full force and effect in all circumstances and notwithstanding any breach of this Agreement or any of the conditions thereof by the Company or any other person entitled to the benefit of such provisions.
- VALIDITY OF TERMS & SEVERABILITY
In the event that any of the terms, conditions or provisions contained in this Agreement shall be determined invalid, unlawful or unenforceable to any extent, such term, condition or provision shall be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
- AUSTRALIAN CONSUMER LAW
- Notwithstanding anything herein contained the Company shall continue to be subject to any implied conditions and warranties or guarantees provided by the Australian Consumer Law pursuant to the Competition & Consumer Act, 2010 (Cwth) (as amended) (“the Australian Consumer Law”) or the Australian Consumer Law (WA) pursuant to the Fair Trading Act, 2010 (WA) (as amended) (“the Australian Consumer Law (WA)”) if and to the extent that the Australian Consumer Law or the Australian Consumer Law (WA) is or are applicable to the supply of Services or goods by the Company to the Customer and prevents the exclusion, restriction or modification of any such condition or warranty or guarantee.
- In this Agreement the only conditions and warranties or guarantees which are binding on the Company in relation to its supply of any goods and/or Services are those required by the Australian Consumer Law (if applicable) and the Australian Consumer Law (WA) (if applicable) and in the event that the Company is liable for breach of a condition or warranty or guarantee implied by the Australian Consumer Law or the Australian Consumer Law (WA) the liability of the Company for a breach of such condition or warranty or guarantee shall be limited:
- in the case of goods to:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods;
- the payment of the cost of having the goods repaired,
- in the case of Services to:
- the supplying of the Services again; or
- the payment of the cost of having the Services supplied again,and otherwise all conditions and warranties and guarantees whether express or implied by law and all representations, statements and obligations which would otherwise be binding upon the Company are hereby expressly excluded and negatived.
- LIMITATION OF LIABILITY
Subject to the other provisions of this Agreement the liability of the Company to the Customer shall be limited to the Contract Price for the Services.
If either Party shall desire to give to the other Party any notice, claim or demand hereunder or in connection herewith then such notice, claim or demand shall be sufficiently given if forwarded by registered post or facsimile transmission to such Party at his address stated herein. Every notice shall be deemed to have been received and given at the time when in the ordinary course of post or transmission it should have been delivered or received at the address to which it was sent PROVIDED THAT if the day on which such notice or other communication as aforesaid is by this Clause deemed to have been received falls on a Saturday, Sunday or day which is a public holiday in the intended place of service or receipt, then the notice or other communication aforesaid shall be deemed to have been received on the day next following which is not a Saturday, Sunday or public holiday as aforesaid irrespective of whether or not such notice or other communication has been accepted by the addressee thereof.
No waiver of any provision of this Agreement nor consent to any departure therefrom by any of the Parties shall be effective unless in writing.
- GOODS & SERVICES TAX
- In this Clause the following terms and expressions shall have the following meanings:
“Basic Consideration” means the Consideration to be paid or provided to the Provider for any Taxable Supply under this Agreement (other than GST payable pursuant to this Clause).
“Consideration” has the meaning which it bears in Section 195-1 of the GST Act.
“GST” shall mean the goods and services tax payable under the GST Act.
“GST Act” means the A New Tax System (Goods and Services Tax) Act, 1999 and any legislation substituted for, replacing or amending that Act.
“GST Law” has the meaning which it bears in Section 195-1 of the GST Act.
“Recipient” means any party who receives a Taxable Supply under this Agreement.
“Provider” means any person who provides a Taxable Supply under this Agreement.
“Taxable Supply” has the meaning which it bears in Section 195-1 of the GST Act.
“Tax Invoice” has the meaning which it bears in Section 195-1 of the GST Act.
- Unless expressly stated in this Agreement the Consideration payable is exclusive of GST.
- If GST is payable on the Basic Consideration or any part thereof or if the Provider is liable to pay GST in connection with any Taxable Supply provided to any Recipient under this Agreement, then:
- the Provider may increase the Basic Consideration or the relevant part thereof by an amount which is equal to the GST payable; and
- the Recipient shall pay the increased Basic Consideration on the due date for payment by the Recipient of the Basic Consideration.
- Where the Basic Consideration is to be increased to account for GST pursuant to Sub-Clause (c), the Provider shall, upon receipt of such amount, issue a Tax Invoice to the Recipient.
- GOVERNING LAW & JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws for the time being of the State of Western Australia and the Parties hereby submit to the jurisdiction of the Courts of that State and all Courts which are competent to hear appeals therefrom.
No modification, variation or amendment of this Agreement shall be of any force or effect unless it is made in writing.
Download our Terms & Conditions (PDF 186 KB)