1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the contrary intention appears:
(a) “Agreement” means this document;
(b) “Authority” means any State, Federal or Local Government or other person or authority having jurisdiction over the Vessel or the Centre;
(c) “Claim” includes any claim, demand, remedy, suit, injury, damage loss, cost, liability, action, proceeding, right of action or claim for compensation, whether present or future, whatsoever and howsoever arising;
(d) “Commencement Date” means the date specified in Item 1;
(e) “Common Areas” means all parts of the Centre intended by GCMC for common use of the Occupants;
(f) "Consumer Law”means, prior to 1 January 2011, the Trade Practices Act 1974 (Cth) and from 1 January 2011, the Competition and Consumer Act 2010 (Cth), any statutory amended or re-enactment thereof for the time being in force and any other relevant and applicable State and/or Commonwealth legislation;
(g) “Centre” means the land and all improvements from time to time which comprise THE BOAT WORKS hardstand, vessel lifting and maintenance and repair facilities as determined by GCMC from time to time and includes the Vessel Hardstand Area;
(h) “Centre Access Fee” means the fee as specified in GCMC’s standard fee schedule from time to time which is payable to GCMC before the Customer is given access to the Centre;
(i) “Centre Opening Hours” means the business hours of the Centre as notified to the Customer from time to time;
(j) “Cost” includes any cost, charge, expense, outgoing, payment or other expenditure including all reasonable legal fees;(k) “Customer” means the party specified in Item 3 and where that party specified in Item 3 is acting as agent of the Vessel Owner, the Vessel Owner, provided that the agent has specified in the Vessel Information Form that it is acting as an authorized agent of the Vessel Owner and has provided the Vessel Owner’s name, address, telephone number and ABN (if applicable);
(l) “Customer’s Associates” means each and every one of the Customer’s employees, agents, contractors, customers, clients, visitors (with or without invitation) who may at any time be in the Centre;
(m) “Default Rate” means 15% per annum, compounding daily;
(n) “Environmental Protection Law” means any Law or requirement, directive, authority, permit or licence issued by an Authority relating to waste, pollution, use of land or the protection, preservation and enhancement of the environment.
(o) “Expiry Date” means the date specified in Item 7 or such other date as may be agreed upon in writing by the parties;
(p) “GCMC” means the operator of the Centre, being the party specified in Item 2;
(q) “Hardstand Fee” means the amounts applicable from time to time charged by GCMC for the Hardstand Services. These amounts are subject to change without notice.
(r) “Hardstand Services” means the storage of the Vessel on the Vessel Hardstand Area and the services provided by GCMC pursuant to this Agreement, including but not limited to:
(i) forklift services;
(ii) cradle and block hire;
(iii) antifouling;
(iv) provisions and materials;
(v) electrical power supply; and
(vi) any other services provided by GCMC from time to time.
(s) “Law” means any statute, rule, regulation, proclamation, ordinance or by-law, present or future, State, Federal or otherwise;
(t) “Lifting Fee” means the amounts applicable from time to time charged by GCMC for the performance of the Lifting Services. These amounts are subject to change without notice;
(u) “Lifting Services” means the lifting services specified in Item 8, provided by GCMC pursuant to this Agreement, including but not limited to:
(i) removal of the Vessel from the Marina to the Vessel Hardstand Area;
(ii) removal of the Vessel from the Vessel Hardstand Area to the Marina;
(iii) lifting of the Vessel from the water for the purposes of short duration survey and inspection lift and thereafter the return of the Vessel to the water;
(iv) movement of the Vessel from a transport vehicle to the Vessel Hardstand Area or the Marina;
(v) movement of the Vessel from the Vessel Hardstand Area or the Marina to a transport vehicle;
(vi) movement of the Vessel within the Centre; and(vii) high pressure water cleaning of the hull of the Vessel.
(v) “Manager” means the Manager of GCMC from time to time, or its nominee;
(w) “Marina” means the area adjacent to the Centre in which the marina and any other berths for the mooring of vessels are situated;
(x) “Occupants” means tenants, licensees or other occupants of the Centre as the context permits;
(y) “GCMC’s Employees” means all of the employees of GCMC or persons authorized on its behalf by GCMC;
(z) “Rules and Regulations” means the rules and regulations prescribed from time to time by GCMC relating to the use, enjoyment, management and care of the Centre;
(aa) “Services” includes the services provided:
(i) to the Centre by authorities including water, electricity and waste outlets; and
(ii) other additional operating costs of the Centre incurred by GCMC applicable to the use of the Centre by the Customer or the Customer’s Associates.
(bb) “Security Deposit” means the amount set out in Item 9;
(cc) “Term” means the period of time from the Commencement Date to the Expiry Date;
(dd) “Vessel” means the vessel or vessels the subject of this Agreement, referred to in Item 6;
(ee) “Vessel Hardstand Area” means that area of the Centre as determined by GCMC from time to time for the hardstanding of Vessels;
(ff) “Vessel Owner” means the person who holds legal title to the Vessel or in whose name the Vessel is registered.1.2 In this Agreement, unless contrary to or inconsistent with, the context:
(a) words importing:(i) the singular include the plural and vice versa; and(ii) any gender includes all genders;
(b) a reference to a party or person includes a reference to that party or person and its successors, substitutes (including but not limited to, any party or person taking by novation), executors, administrators and assigns;
(c) the word “person” includes a corporation and vice versa;
(d) a reference to any thing or any matter is a reference to the whole or any part of it;
(e) a reference to a group of person or parties is a reference to any two or more of them jointly and to each of them individually;
(f) a covenant, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(g) a covenant, representation or warranty on the part of two or more persons binds them jointly and severally;
(h) a reference to this Agreement or other document includes any variation, novation or replacement of or supplement to any of them from time to time;
(i) a reference to a clause means a reference to a clause of this Agreement;
(j) a reference (whether specific or genera) to a statute or to any other legislation includes any code, ordinance or other law, and any regulation, rule or by-law or other instrument made under it, and all official directives (if any) and all amendments, consolidations, re-enactments or substitutions, of any of them from time to time;
(k) a reference to a document includes, but is not limited to, any agreement in writing, certificate, notice or other instrument in writing of any kind;
(l) “writing” and related expressions includes all means of reproducing words in a tangible and permanently visible form;
(m) any agreement, undertaking, acknowledgment, condition or other term (including but not limited to any indemnity and/or release) that is made or given by the Customer is deemed to be a covenant by the Customer in favour of and for the benefit of GCMC and the owner from time to time of the Centre; and
(n) headings are inserted for guidance only and do not affect the interpretation of this Agreement.
2. PROVISION OF SERVICES
2.1 GCMC will provide the Lifting Services and /or Hardstand Services as reasonably required by the Customer at the request of the Customer and subject to the terms of this Agreement.
2.2 Where the Customer is acting as an agent for the Owner of a Vessel, the Customer:
(a) Must provide to GCMC the Owner’s full contact details, including name, address and telephone number and ABN (if applicable).
(b) Warrants that it has the Vessel Owner’s authority to enter into this Agreement on the Vessel Owner’s behalf;
(c) Warrants (in the event that the Customer is acting as agent for the Vessel Owner) that the Vessel Owner has provided specific instructions to the Customer to engage GCMC to perform the Services.
2.3 GCMC may change the manner in which the Lifting Services and / or Hardstand Services are provided from time to time in its absolute discretion.
2.4 GCMC may arrange for any of the Lifting Services and / or Hardstand Services or any part to be carried out by a sub-contractor.
3. FEES AND CHARGES
3.1 The Customer must pay the Lifting Fee, the Hardstand Fee and/or other associated fees to GCMC as arranged or required and in any event before the Vessel is returned to the water or leaves the Centre.
3.2 Where the Customer is acting as an agent for the Owner of a Vessel, the Customer must provide to GCMC a credit card authority signed by the Vessel Owner authorizing payment of the fees and charges prior to the Services being provided. If a signed credit card authority is not provided to GCMC then the Customer agrees to take responsibility for the payment of any fees and charges payable to GCMC for provision of the Services.
3.3 If GCMC provides any Services to the Customer, GCMC may request that the Customer pay the charge to the relevant Authority or to GCMC as the case may be, by the due date for payment. If the charge is not assessed directly against the Customer and GCMC has requested that it be paid by the Customer, the Customer must pay the charge to GCMC within 7 days of being billed for the charge by GCMC.
3.4 When access to a supply of electric current, whether single or three phase, is provided by GCMC, it will be used by the Customer at its own risk in all respects. The Customer will provide all necessary connecting leads and cables, which shall be of appropriate size and in good condition and also, all safety devices.
3.5 The Customer must:
(d) upon demand by GCMC pay all stamp duty (including penalties if any) from time to time assessed on this Agreement;
(e) make payments due to GCMC under this Agreement without set-off, counterclaim, withholding or deduction and by any method GCMC reasonably requires; and
(f) pay to GCMC interest at the Default Rate on any moneys due by the Customer to GCMC but unpaid for 7 days from the due date up until the money is received by GCMC;
3.6 Should the Customer not pay for any goods or services supplied by GCMC in accordance with the terms of this Agreement, GCMC shall be entitled to charge and recover from the Customer an administration fee equal to 1% per month of such amount due, or part thereof, from the date the goods or services were supplied (and not the day when GCMC’s invoice was payable) until the date of payment by the Customer.
3.7 Upon termination of this Agreement, GCMC will refund the Security Deposit to the Customer less any outstanding amounts due to GCMC under this Agreement.
3.8 If the Customer fails to remove the Vessel on the departure date agreed between the parties, GCMC may continue to charge Fees and may deduct unpaid Fees as GCMCconsiders appropriate from the Security Deposit for each additional day (or part thereof) that the Vessel remains in the Centre, commencing from the date after the agreed departure date up to and including the date the Customer removes the Vessel.
3.9 Each party will bear their own costs of this Agreement.
3.10 Time is of the essence for all obligations of the Customer under this Agreement, to pay money and otherwise.
3.11 Unless otherwise specified by GCMC, all amounts payable under this Agreement, are exclusive of GST. If GST is imposed on any supply made under this Agreement, the recipient of the taxable supply must pay to the supplier (in addition to the consideration otherwise payable for that supply under this Agreement and at the same time as that consideration is payable) an amount equal to the GST payable on the taxable supply. For the purposes of this clause “GST”, “taxable supply” and other words and phrases defined in the GST Act have the same meaning in this Agreement unless the context otherwise requires. “GST Act” means A New Tax System (Goods and Services Tax) Act and any other GST related legislation as modified, amended or replaced from time to time.
4. CUSTOMER’S WARRANTIES
The Customer warrants that:
(a) if it is not the owner of the Vessel, it has the authority and consent of the owner of the Vessel to engage GCMC to provide the Lifting Services and/or the Hardstand Services;
(b) all information provided by the Customer in this Agreement is true and correct and that it has the full power and authority to enter into this Agreement, including all authorities or consents needed by the Customer to enter into this Agreement from any co-Customer, financier and/or other entity in respect of the Vessel;
(c) it has given GCMC all information which may be relevant to GCMC in providing the Lifting Services and/or Hardstand Services or assessing the Customer’s needs for the Lifting Services and/or Hardstand Services including but not limited to the position in which to place the slings for the lift and/or the ability of the Vessel’s coatings to withstand water blasting; and
(d) it has given GCMC all information which may be relevant to the use of any plant or equipment owned or provided by GCMC to perform any of the Lifting Services and/or Hardstand Services.
(e) Effective 1 July 2017, No private for sale signs are to be displayed on any vessel whilst here within the yard.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer must:
(a) not under any circumstances undertake or perform any of the Lifting Services and/or Hardstand Services;
(b) not without the express permission of GCMC, use any plant or equipment owned or provided by GCMC to perform any of the Lifting Services and/or Hardstand Services;
(c) without limiting the Customer’s obligations under this Agreement, do or provide anything reasonably requested by GCMC, necessary for the provision of the Lifting Services and/or Hardstand Services;
(d) ensure that the Vessel is kept in a clean, sound and, to the extent applicable, in a seaworthy and watertight condition;
(e) not obstruct in any way the provision of the Lifting Services and / or Hardstand Services;
(f) not bring any motor or other vehicle or conveyance into the Centre, without the express permission of the Manager. Any such permission will be granted only for the purpose of loading or unloading materials, parts and tools of trade. Motor or other vehicles or conveyances will be parked only in the areas and during the times so designated by the Manager. No work whatsoever may be done in the car park of the Centre;
(g) not obstruct the pavements, pathways, roadways, entry and exit avenues and driveways in the Centre and any easement giving access to the Centre or any part of the Centre or use them for any purpose other than ingress and egress or allow any of the Customer’s Associates to park or permit to be parked any vehicles so as to prevent the passage of other vehicles over the said pavements, pathways, roadways, entry and exit avenues, driveways and easements;
(h) ensure that all appropriate gates, entrances and exits within the Centre are properly closed after each use;
(i) only access the Centre during times approved by the Manager from time to time;
(j) not waste water under any circumstances and all taps must be turned off when water is not being immediately used. Fire hoses must not be used for other than their specified purposes;
(k) not carry out any repairs, sandblasting, painting, fitting out, maintenance, works or refitting of any kind within the Centre except in such area designated by GCMC from time to time. If required by GCMC, the Customer shall enter into such licence or tenancy agreement as GCMC shall require for the use of such designated area;
5.2 The Customer acknowledges that:
(a) no promise, representation or warranty is given by GCMC:(i) as to the suitability or adequacy of the Lifting Services and/or Hardstand Services; or(ii) regarding the sufficiency or efficiency of the Lifting Services and/or Hardstand Services;
(b) the Lifting Services and/or Hardstand Services do not include inspecting, assessing or assuming responsibility for the condition of the Vessel for any purpose whatsoever; and
(c) GCMC’s obligations under this Agreement are limited to providing the Lifting Services and/or Hardstand Services at the request of the Customer and subject always to the provisions of this Agreement.
5.3 Subject to this Agreement, the Customer may use the Common Areas for the purposes for which they are intended but must not obstruct the Common Areas in any way.
5.4 In consideration of GCMC entering into this Agreement, the Customer, by executing this Agreement, charges all of their right, title and interest which they have or may acquire in any freehold or leasehold property with the payment of all moneys due and payable under this Agreement. The Customer shall, immediately upon demand, at the cost and expense of the Customer (as applicable) in all respects, deliver to GCMC a mortgage or consent caveat in registrable form in order to better secure the charge hereby granted.
6. REPAIR OR DAMAGE
6.1 The Customer must:
(a) give immediate notice to GCMC of any damage, accident to or defects in the Centre or the Vessel; and
(b) repair damage to the Centre caused by the willful or negligent act of the Customer or the Customer’s Associates, or on demand by GCMC, pay to GCMC the cost of such repairs.
7. RESERVATIONS
7.1 GCMC reserves the exclusive right to, at its absolute discretion:
(a) move the Vessel and/or require the Customer, at its cost and expense, to move the Vessel to another position in the Centre as reasonably required;
(b) control the Common Areas;
(c) use any part of the Centre for any purpose; and(d) construct or permit the construction of any building, marina or other works on any part of the Centre, and the Customer will not make any objection or Claims with respect to any of these matters.
7.2 GCMC is not liable to the Customer:
(a) for any damage which the Customer may suffer because of any interruption to any of the Lifting Services and/or Hardstand Services and/or any Services; and/or(b) for any loss suffered by the Customer in connection with this Agreement and, in particular but without limitation, as a result of the Vessel being lifted or water blasted.
8. RULES AND REGULATIONS
8.1 The Customer must at all times comply, and must ensure that the Customer’s Associates at all times comply, with the Rules and Regulations.
9. INSURANCES AND INDEMNITIES
9.1 During the Term, the Customer must take out and maintain while the Vessel is within the Centre and/or the Marina:
(a) public risk insurance for at least $5,000,000 in respect of any single incident;
(b) comprehensive insurance on the Vessel for its market value from time to time; and
(c) any other insurance reasonably required by GCMC.
9.2 The Customer warrants that such insurances are in place as at the Commencement Date.
9.3 The Customer must, upon request, provide to GCMC evidence that it has taken out the required insurances and give GCMC immediate notice if any insurance policy is cancelled.
9.4 The Customer must not:
(a) do anything which may affect rights under any insurance policy taken out by GCMC or other persons; and
(b) store noxious, chemicals, flammable, volatile or explosive liquids or substances in any vehicle, vessel or conveyance or on any part of the Centre (without the consent of GCMC and provided that they are reasonably necessary, in such quantities as are reasonably required and are in the appropriate approved safety containers).
9.5 The Customer is liable for and indemnifies GCMC against any liability for any Claim arising from, connected with or in any way related to:
(a) the use by the Customer or the Customer’s Associates of the Centre, the Common Areas, the Services or the Vessel;
(b) any damage, loss or injury to any person or property or death caused or contributed to by any act, omission, negligence or default of the Customer or the Customer’s Associates; and
(c) the Customer’s and/or the Customer’s Associates failure to comply with its obligations under this Agreement;
9.6 The indemnity in clause 9.5 above is intended to extend to and include:
(a) legal costs incurred by GCMC in connection with any of the matters referred to in clause 9; and
(b) all other costs and expenses incurred by GCMC in respect of the matters referred to in clause 9.
9.7 GCMC may enforce an indemnity before incurring an expense.
9.8 The Customer releases GCMC from, and agrees that GCMC is not liable for any Claim arising from:
(a) damage, loss or injury to person or property or death of the Customer or the Customer’s Associates unless it is caused by the negligence of GCMC;
(b) anything the Customer is permitted to do under this Agreement;
(c) any defect in or faulty operator of the Lifting Services, the Hardstand Services and/or any Services; or
(d) the Common Areas not being clean.
9.9 The Customer acknowledges that any vehicle, vessel or conveyance and all property of whatever kind which may be in them or brought into the Centre is at the sole risk of the Customer. All vehicles, vessels, conveyances and all such other property must be kept safe and secure while in the Centre and GCMC accepts no liability or any responsibility whatsoever while they are in or about the Centre. Security is the responsibility of the Customer.
9.10 The Customer acknowledges that the Vessel and all property which may be on the Vessel is at the sole risk of the Customer at all times during the Term, including but not limited to, during the performance of the Lifting Services and/or Hardstand Services.
10. DEFAULT OF CUSTOMER
10.1 The Customer will be in default if:
(a) the Lifting Fee and/or Hardstand Fee or any part of it or any other moneys payable by the Customer to GCMC are in arrears and remain unpaid for seven (7) days after any of the due dates for payment (whether demanded or not);
(b) the Customer or the Customer’s Associates fail to comply with any of the provisions of this Agreement which ought to be performed or observed by the Customer or the Customer’s Associates or fails or refuses to comply with the Rules and Regulations, the rules and regulations of the Marina or the directions of the Manager; and/or
(c) the Customer enters into any form of liquidation or insolvency or is wound up or dissolved, enters into a scheme or arrangement for creditors, is placed under administration or a receiver or receiver and manager is appointed to any assets of the Customer.
10.2 Without prejudice to GCMC’s rights at law or in equity if the Customer is in default under this Agreement, GCMC:
(a) may immediately terminate this Agreement without notice to the Customer;
(b) may suspend all or part of any Lifting Services and/or Hardstand Services;
(c) may remove the Vessel to another area within the Centre; and
(d) shall have a lien over the Vessel until the default is remedied or all outstanding moneys are paid and shall be entitled to take such action as may be necessary to prevent the removal of the Vessel from the Centre.
10.3 GCMC may terminate this Agreement at any time upon two days written notice to the Customer, without any reason required to be given.
10.4 Termination of this Agreement by GCMC does not affect any prior Claim that GCMC may have against the Customer.
10.5 GCMC’s acceptance of any Lifting Fee, Hardstand Fee or other money under this Agreement (before or after termination) is not a waiver of a breach or an acceptance of the repudiation of this Agreement by the Customer.
10.6 No waiver by GCMC or variation of this Agreement will be effective unless it is in writing.
11. DETERMINATION OF TERM
11.1 On the Expiry Date or earlier termination of this Agreement, the Customer must:
(a) immediately pay all fees and other amounts payable under this Agreement;
(b) vacate the Centre and leave it in a clean state; and
(c) remove the Customer’s property, materials, tools, equipment, vehicles, vessels or conveyances from the Centre.
11.2 The Customer must not cause any damage to the Centre in the removal of anything. If any damage is caused the Customer must promptly repair that damage to the satisfaction of GCMC, at the Customer’s cost and expense in all respects.
11.3 If the Customer does not properly clean the Centre area occupied or used by it to GCMC’s satisfaction, GCMC may arrange for that area to be cleaned at the Customer’s cost and expense and recover these costs and expenses from the Customer.
12. OPERATOR’S LIABILITY
12.1 To the full extent permitted by law, any warranty or condition implied under the law is excluded from these Conditions. However, if it cannot be lawfully excluded, then if allowed, GCMC’s liability is limited, at GCMC’s option, to:
(a) in the case of the Services supplied or offered by GCMC:
(i) the re-supply of those services; or
(ii) the payment of the cost of having those services re-supplied;
(b) in the case of the goods supplied or offered by GCMC:
(i) the replacement of the goods or the supply of equivalent goods; or
(ii) the repair of the goods;
(iii) the payment of the cost of having the goods replaced; or
(iv) the payment of the cost of having the goods repaired.
12.2 The Customer will examine the goods for defects and shall notify GCMC of any defects in writing within 7 days of delivery. Returns can only be made if the evidence is clear that the goods are faulty. A credit authorisation number must be obtained by the customer from GCMC prior to GCMC accepting return of any defective goods. A credit authorisation number will only be provided by GCMC if an adequate explanation as to the nature of any fault is provided. This credit authorisation number must be clearly displayed on the outside packaging containing the returning Goods. If the Customer does not notify GCMC within 7 days of delivery, the Customer shall be deemed to have accepted the Goods.
12.3 GCMC and the Customer agree that GCMC’s liability under this Agreement is governed solely by the Consumer Law.
12.4 To the extent the Consumer Law permits, GCMC excludes all other liability whatsoever to the Customer arising out of or in any way connected with a Contract including any liability for consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence, other13.tort or other cause of action. Consequential or indirect losses will be taken to include but not be limited to:(a) any loss of income, profit or business;(b) any loss in the nature of overhead costs; and(c) any loss of goodwill or reputation.
13. DIRECTIONS BY GCMC’S EMPLOYEES
13.1 The Customer will promptly observe any directions from any of GCMC’s Employees in relation to the operation of the Centre, the lifting, storage or hardstanding of the Vessel.
13.2 Where the context so permits the reference to GCMC shall also mean a reference to GCMC’s Employees.
14. WATER CLEANING
14.1 GCMC and GCMC’s Employees do not warrant or represent in any way the quality or standard of the high pressure water cleaning services.
14.2 Without in any way limiting the provisions of clause 5.1, GCMC has relied upon information provided by the Customer concerning the ability of the Vessel’s coating and of any other fitting mounted to the hull of the Vessel below the level of the freeboard deck to withstand water blasting.
15. GENERAL PROVISIONS
15.1 Notices from one part to the other must be in writing and either delivered personally, by facsimile transmission or in any other way permitted by law to the address specified in this Agreement. Each party must notify the other of any change in address or facsimile number.
15.2 If anything in the Agreement requires the consent or approval of GCMC, GCMC may withhold that consent or approval in its absolute discretion or grant its consent subject to conditions.
15.3 This Agreement constitutes the entire agreement and understanding between the parties about its subject matter.
15.4 This Agreement is governed by the law in force in Queensland and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.
15.5 Any covenants implied by Law or otherwise are not excluded but will be taken to have been modified (where permitted) to the extent of any inconsistency with this Agreement.
15.6 If there is more than one Customer under this Agreement, their liability is joint and several.
15.7 If the whole or any part of a provision of this Agreement is void, illegal or unenforceable in a jurisdiction, it is severed for that jurisdiction. The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause will not operate if the severance alters the basic nature of this Agreement or is contrary to public policy.