Terms and Payments
THE FOLLOWING IS OUR TERMS AND CONDITIONS TO YOU, FOR PROVIDING OUR SERVICES. IT EXPLAINS HOW WE DEAL WITH YOU, HOW YOU WILL DEAL WITH US AND EXPLAINS OUR'S AND YOUR LEGAL RIGHTS AND RESPONSIBILITIES.
IN SHORT WE WILL TELL YOU VIA VARIOUS COMMUNICATION MEANS, HOW MUCH YOUR BOAT WILL COST TO FIX AND THE WORK WE WILL DO FOR THAT COST AND THE WARRANTIES PROVIDED WITH THAT SERVICE AT THAT COST AND YOU AGREE TO PAY THESE COSTS ON COMPLETION OF WORK.
*****Please be aware that a cancelation fee of $135 will be charged for bookings made for the same day or next day Within 48 hours of making such booking for service or call out after booking if you change your mind or cancel the service.***
Owner and Vessel agree to pay Falcon Services Australia (without deduction or offset) for all labor and materials provided in connection with the ordered work as follows: For online bookings or telephone bookings A deposit of $0 shall be made upon agreeing to this Agreement, thereafter Falcon Services Australia will invoice on completion of work or at periodic intervals of ___ ___ __ (monthly if not filled in) until the work is completed.
For all Repairs a deposit of 50% of the estimated Repair cost shall be made upon agreeing to this Agreement, thereafter Falcon Services Australia will invoice on completion of work or at periodic intervals of ___ ___ __ (monthly if not filled in) until the work is completed. Unless otherwise agreed, payment shall be due upon receipt of invoice. Time is of the essence.
ALL CHARGES MUST BE PAID IN FULL BEFORE VESSEL'S SHALL BE LAUNCHED OR RETURNED TO OWNER.
1. Should Owner or Vessel fail to make the appropriate payments when due, Falcon Services Australia may immediately cease any and all work on the vessel until we receive payment, in it's sole discretion, adequate assurances that payment will be made pursuant to these terms and conditions. Any amount more than ten days past due shall be subject to default interest at the lesser of (1) twenty percent or (2) the maximum legal rate. Any grant(s) of extensions of time for payment will not diminish, waive, release or discharge the Vessel’s or Owner’s obligations under this Agreement. In the event Falcon Services Australia deems it necessary to retain counsel and/or a collection agency to collect any unpaid invoices, Owner and the Vessel agree to pay Falcon Services Australia reasonable costs of collection, including, without limitation, lawyer fees, other collection costs and collection agency fees. Owner acknowledges and agrees the services provided by Falcon Services Australia entitle it to a maritime lien against the Vessel, as well as state liens under Australian and WA law. Owner agrees that the liens shall extend to and secure all amounts due to Falcon Services Australia under this
Agreement or at law and that no release of possession shall waive or prejudice such liens.
2. ESTIMATES ARE NOT GUARANTEES: When requested by customers, Falcon Services Australia will provide cost and completion date estimates to Owner. Any such estimates will be made honestly and in good faith based on Falcon Services Australia knowledge and experience, but Falcon Services Australia cannot guarantee their accuracy. Owner acknowledges that boat repair work cannot always be accurately estimated in advance; that once work begins, unforeseen conditions or problems frequently arise; and other factors can affect estimated costs and completion dates. Owner accepts these realities and agrees any estimates furnished are to be used as guidelines only and are not binding on Falcon Services Australia.
3. PAYMENT OF UNDISPUTED AMOUNTS: In the event of a dispute or claim with respect to any item(s) of the agreed work, Owner shall pay promptly on a timely basis the agreed charges for all other items of the work not in dispute.
4. Falcon Services Australia's REPRESENTATIONS: Unless otherwise agreed, Falcon Services Australia agrees to perform on a time and material basis the work described above and any additional work ordered by Owner in accordance with Owner's instructions and good marine practice. Labor will be charged at the hourly rate set out above. If the labor rate is not filled in above, labor will be charged at Falcon Services Australia rates currently in effect. Falcon Services Australia reserves the right to increase rates periodically. In the event Falcon Services Australia raises its rates during the term of this Agreement, Owner agrees to pay the increased rates for all work performed thereafter.
5. OWNER’S REPRESENTATIONS: Owner represents he or she (1) is the owner of the Vessel or has been authorised by the Owner of the Vessel to enter into this Agreement, (2) has read and agrees to comply with Falcon Services Australia Yard Policies and Best Management Practices Agreement; (3) will maintain marine liability insurance on the Vessel with coverage limits not less than $300,000; and (4) will inspect and supervise the progress of the ordered work from time to time and will be solely responsible for ascertaining the suitability of the work performed and materials installed for Owner’s intended purposes .
6. CANCELLATION, REDUCTION OR MODIFICATION OF ORDERED WORK: In the event Owner elects to cancel, reduce or modify the ordered work, Owner agrees to pay Falcon Services Australia in full for (1) all work performed by Falcon Services Australia or its subcontractors, and (2) all materials including any shipping or other related costs ordered by Falcon Services Australia (net of any available return credit) prior to the time Falcon Services Australia receives actual notice from Owner of the requested change.
7. LIMITED WARRANTY, DISCLAIMERS, AND EXCLUSIVE REMEDY: All repairs shall be free of defects in materials under normal service conditions for six months from the earlier of (1) the date work was completed; or (2) the date the Vessel was redelivered to Owner. Falcon Services Australia MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF WHATSOEVER NATURE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF SEAWORTHINESS, WORKERLIKE PERFORMANCE, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OWNER AGREES THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAULTY OR DEFECTIVE REPAIRS, INSTALLATION OF DEFECTIVE MATERIALS, OR ANY OTHER BREACH SHALL BE STRICTLY LIMITED TO, AT Falcon Services Australia's SOLE ELECTION, TO THE REPAIR, REPLACEMENT OR ADJUSTMENT OF THE FAULTY OR DEFECTIVE WORK OR MATERIALS. Any such repair, replacement or adjustment shall be performed by Falcon Services Australia at its yard, unless otherwise mutually agreed. Owner shall be responsible for all costs related to getting the Vessel to and from Falcon Services Australia yard.
8. LIMITATION OF REMEDIES: Falcon Services Australia SHALL NOT BE LIABLE IN CONTRACT OR AT LAW FOR ANY PERSONAL INJURY, DEATH, OR LOSS OR DAMAGE TO THE VESSEL OR TO ANY OTHER REAL OR PERSONAL PROPERTY. IN NO EVENT SHALL Falcon Services Australia AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT OR AT LAW, TO ALL PARTIES IN INTEREST FOR ALL PERSONAL INJURY, DEATH, PROPERTY DAMAGES OR DELAYS EXCEED THE LESSER OF (1) $300,000.00 OR (2) THE SUM RECEIVED BY Falcon Services Australia UNDER THIS AGREEMENT.
9. TIME LIMIT FOR FILING CLAIMS: NO CLAIM ARISING OUT OF THIS TRANSACTION, INCLUDING, BUT NOT LIMITED TO CONTRACTUAL CLAIMS FOR BREACH OF CONTRACT AND TORT CLAIMS BASED UPON ALLEGED NEGLIGENT REPAIR OR ON THE THEORIES OF STRICT LIABILITY OR OTHERWISE, SHALL BE VALID AS AGAINST Falcon Services Australia, UNLESS SAID CLAIM IS PRESENTED IN WRITING TO Falcon Services Australia WITHIN SIX (6) MONTHS OF THE EARLIER OF (1) THE DATE WORK WAS COMPLETED; OR (2) THE DATE THE VESSEL WAS REDELIVERED TO OWNER.
10. MUTUAL HOLD HARMLESS: Falcon Services Australia shall defend, indemnify, and hold harmless Owner against any and all claims for payment for services submitted by Falcon Services Australia subcontractors or vendors arising under this contract. Owner shall defend, indemnify and hold harmless Falcon Services Australia, and its employees, subcontractors and agents from any claim, charge, liability or loss or damage for personal injury, occupational sickness, disease or death of any person, including without limitation any employee, subcontractor or agent of Owner, or for any property damage or loss of use thereof, which is in any way caused, in whole or part, by defects in the Vessel or by the negligence, breach of contract, or willful misconduct of Owner, including its employees, agents, and subcontractors; unless any such loss or damage is solely caused by Falcon Services Australia. Upon receipt of written request of Falcon Services Australia, Owner shall, at its own expense, immediately defend Falcon Services Australia in any arbitration, action, or other proceeding in which a claim covered by the foregoing indemnity provisions is alleged.
11. FORCE MAJEURE: Falcon Services Australia shall not be responsible for any loss, damage or delay in effecting repairs resulting from any cause or causes beyond the control of Falcon Services Australia including, but not limited to, acts of God, war, riots, civil disturbances, weather, flood, fire, explosion, failure of suppliers to deliver supplies or materials, failure of subcontractors to complete work, strikes, labor disturbances or demands, and priorities or allocations of the Australian Government.
12. DEFAULT AND REMEDIES: The occurrence of any of the following events shall constitute a default under this Agreement: (1) breach by either party of this Agreement, including the Yard Policies and BMP Agreement; (2) failure of Owner to pay when due any amounts owed under this agreement; (3) failure of Owner to provide access to the Vessel; (4) any act or omission by Owner, which causes any of the representations made in paragraph 2 to be false; and (5) any act or omission by Owner or the Vessel, which constitutes a tort against Falcon Services Australia or third parties. Upon any default by Owner or the Vessel; Falcon Services Australia, in addition to all other remedies under Australian or state law, in its sole discretion, may (1) suspend its performance or terminate this Agreement, (2) impose storage charges on the Vessel at Falcon Services Australia current storage rates; (3) retain possession of the Vessel until fully paid; and/or (4) pursue all remedies, including non-judicial sale of the Vessel, under Australian, state and/or maritime lien laws.
13. ADDITIONAL WORK: If Owner makes an oral or written request to Falcon Services Australia to modify or add to the work requested above, any modified or additional work shall be on a time and materials basis at rates then currently in effect and shall be subject to all of the Terms and Conditions of this Agreement.
14. WORKING CONDITIONS: Owner or Owner's employees, representatives or agents may perform work on Owner's vessel while at Falcon Services Australia facilities, subject to the following restrictions: (1) Owner shall give prior notice to Falcon Services Australia whenever such work is to be performed and by whom; (2) no work shall be performed on any job covered by an order or contract between Owner and Falcon Services Australia; (3) Owner shall have no warranty from Falcon Services Australia and Falcon Services Australia shall have no liability for warranty to owner for any work so performed; (4) Owner assumes all risks for quality and performance of work so performed, and assumes all liability for any damage, loss, delay, claim for death, personal injury or property damage to, for, caused by, or arising in connection with work so performed and agrees to defend, indemnify and hold Falcon Services Australia harmless from any such damage, loss or claim. Any such work shall at all times be governed by Falcon Services Australia's Yard Policies and Best Management Practices agreement and such other restrictions as Falcon Services Australia deems necessary. Failure to abide by such rules and restrictions shall be a basis for excluding such personnel from Falcon Services Australia's facilities.
15. POLLUTION: The Vessel and Owner shall defend, indemnify and hold harmless Falcon Services Australia from all liability and expense, including without limitation cleanup costs, fines, penalties, civil damages, Resource Damage Assessments, costs, and reasonable attorney's fees, arising out of any environmental pollution attributable to vessel, unless such pollution is affirmatively proved to have been caused by the sole negligence of Falcon Services Australia or its employees.
16. DISPUTES: Judgment on the Award may be entered in any court having jurisdiction. This paragraph shall not preclude parties from seeking provisional or enforcement remedies in aid of arbitration or preclude Falcon Services Australia from exercising any lien rights from any court having jurisdiction. The laws of the Western Australia shall govern, except general maritime law will govern any assertion by Falcon Services Australia of its maritime lien rights. Falcon Services Australia shall be entitled to an award of costs, including all legal fees associated with judgment interest, and all associated attorneys’ fees.
17. MISCELLANEOUS: This contract is the final, exclusive and complete agreement of the parties. Except as provided in paragraph 13 above, this contract may not be changed, modified or altered in any way except by a written instrument signed by the parties. Should any provision of this Agreement be deemed unenforceable, the parties agree that the remaining terms shall remain in full force and effect. any and all old and broken parts will be disposed of by Falcon Services Australia unless written agreement is entered into prior to any works being commenced .It is UNDERSTOOD BY YOU AND CONFIRMED that all agreements entered into via web telephone or text agree to the above terms and conditions signed or unsigned.
18. CONFIRMATION #1 All web bookings agree to the above terms and conditions via digital signature of completing the booking form.
19. CONFIRMATION #2 All telephone bookings agree to the above terms and conditions via conformation of clients address and or full name via text message sent to 0458852591 or by Replying to the confirmation email sent at time of booking.
20. All telephone Conformations for Service and Additional Repair work or Repair constitutes as a verbal Contract as set out in Australian consumer law. Such agreements will be taken as Confirmation and documented as per Falcon Services Australia Operating Procedure.
21. STORAGE Vessels Not collected and Invoices Paid in Full at completion of work will incur a $17.00 Inc GST storage fee charged Per day from completion of work until the time of Payment and collection of vessel.
22.INSPECTIONS AND REPORTS DISCLAIMER “While we have taken all reasonable care when carrying out the inspection to which this report relates and in producing the information in this report, the inspection did not and the report does not consider the condition
of every part of the relevant craft. In particular, this report relates only to those parts of the craft which were
able to be inspected without us undertaking major work, including (but not limited to) CORROSION INTERNALLY TO ANY METALLIC PART , INTERNAL CONDITION OF GLASS OVER PLY HULLS AND STRUCTURES, WHEEL BEARINGS, ENGINE COMPONENTS, INCLUDING ESTIMATED LIFESPANS OF SUCH.”