Standard Terms and Conditions for Supply of Services - Commercial
Issue 008
All services undertaken by Sherwood Marine Design Pty Ltd are subject to these terms and conditions, with the exception of the supply of vessel construction materials in kit form. In the case of vessel construction kits, you will have been provided with a separate set of terms and conditions specific to that supply.
Definitions:
SMD: Sherwood Marine Design Pty Ltd
Client: You the customer, or purchaser of services
Services: Design or any other services or deliverables provided by SMD as part of the agreement
Proposal: A document or documents specifying the nature and scope of services to be provided under the agreement, and the fees payable. If the work is of variable in nature it may be in the form of an estimate.
Agreement: These terms and conditions, together with the proposal, form the agreement.
1. The Client contracts with SMD for the purpose of obtaining services in accordance with the following terms and conditions.
2. Fees payable by the Client for work performed by SMD shall be as agreed by proposal.
3. The Client will render full payment in response to SMD's invoices within 7 days of receipt of the invoice or as detailed in the proposal. A service charge of one percent (1.0%) per month will be payable for late payment of invoiced amounts.
4. This Agreement is governed by the laws of Western Australia.
5. The parties will be bound by this Agreement upon the client issuing a written instruction to proceed.
6. Client acknowledges that the actual total fees and expenses may exceed the proposal if the total work scope is undefined at the time of commencing this Agreement, or if not all information requested is supplied initially, or if anomalies are discovered during assessment, or a change of project scope is requested after the Agreement has been commenced. Where an anomaly or a project scope change request is received after commencing the Agreement, any work will cease and a new written proposal will be issued. Additional work will be charged at AUD $195/hr for naval architecture and engineering design, and AUD $125/hr for drafting.
7. SMD is not responsible for and accepts no liability for any error, inaccuracy or negligence in the manufacture of the vessel or object that is the subject of this Agreement, or where the construction has not been in accordance with the drawings prepared. SMD is not responsible for and accepts no liability for any error, inaccuracy or negligence in the design or performance or manufacture of the vessel or object that is not of SMD's design, that is the subject of this Agreement, or where the construction has not been in accordance with the drawings prepared.
8. Where SMD relies upon drawings and/or information provided by others, SMD is not responsible for any errors and inaccuracies in drawings, measurements and/or any other base data provided. Unless otherwise stated, SMD will not review the consistency of the information on the certificate of compliance with any other material, plans, documentation or certificates of compliance. Each certificate of compliance is limited to the verification of the specific plans and/or documentation as stated on each particular certificate.
9. SMD shall be under no liability whatsoever to the Client for any loss, damage, delay or expense of whatsoever nature, whether direct or indirect and howsoever arising UNLESS same is proved to have resulted solely from the negligence, gross negligence or wilful default of SMD or any of its employees or agents or sub-contractors.
10. In the event that the Client proves that the loss, damage, delay or expense was caused solely by the negligence, gross negligence or wilful default of SMD aforesaid then, save for where loss, damage, delay or expense has resulted from SMD's personal act or omission committed with the intent to cause same or recklessly and with knowledge that such loss, damage, delay or expense would probably result, SMD's liability (both directly and indirectly) for each incident or series of incidents giving rise to a claim or claims shall not exceed the total fee payable under the agreement.
11. In respect to clause 9 and 10 above, the SMD hereby excludes all liability for consequential loss.
12. SMD shall not be liable for loss of or damage to equipment and other items placed at its disposal by or on behalf of the Client however such loss or damage occurs.
13. SMD shall be discharged of all liability in respect of any claim for loss, damage, delay or expense suffered by Client (or alleged to be suffered by Client) unless, within 12 months from the date on which SMD submits a final report to Client (or, if no report is issued, the date on which the report would have been issued or if no report is required, the date of the SMD’s final invoice) formal arbitration proceedings are commenced by the Client against SMD.
14. Client hereby undertakes to keep SMD and its employees, agents and sub-contractors indemnified and to hold them harmless against all actions, proceedings, claims, demands or liabilities whatsoever or howsoever arising which may be brought against them or incurred or suffered by them, and against and in respect of all costs, loss, damages and expenses (including legal costs and expenses on a full indemnity basis) which SMD may suffer or incur (either directly or indirectly) in the course of performing the services under this Agreement, unless such costs, loss, damages and expenses (including legal costs) arise solely as a result of the SMD’s negligence, gross negligence or wilful misconduct. The loss need not occur before the SMD may rely on this indemnity.
15. Neither SMD nor the Client shall, except as otherwise provided in this Agreement, be responsible for any loss, damage, delay or failure in performance hereunder arising or resulting from act of God, act of war, seizure under legal process, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions and arrest or restraint of princes, rulers or people or any other usual force majeure type event.
16. SMD shall have the right to sub-contract or assign any of the services provided under the agreement.
17. All materials supplied by the Client to SMD and all communications between them shall be considered confidential, not disclosable by SMD without prior written permission of Client, unless necessary for the provision of the service or required by law.
18. All intellectual property created by virtue of SMD carrying out the services under this Agreement, is owned by SMD. The Client is granted a non-exclusive licence to use the intellectual property created by SMD under this Agreement, for the purposes referred to in this Agreement.
19. This Agreement sets forth the entire understanding of the parties in respect of their respective rights and obligations relating to the subject matter of this Agreement, and supersedes all prior agreements or understandings of the parties with respect thereto.
20. Nothing contained in this Agreement shall be construed to create any partnership, joint venture, or franchise relationship between the parties hereto. The parties are independent persons, and neither shall be construed as the agent, employee, nominee, or representative of the other. No party shall have the authority to act for, or to incur obligations on behalf of, any other party except as provided by this Agreement.
21. Either party may terminate this Agreement by providing the other party with 30 days prior written notice. The rights and obligations referred to in Clauses 3, 17, 18, 19 and 20 of this Agreement survive termination of this Agreement.
