Southern Cross Marine Supplies
2. The placing of an Order with the Supplier or the receipt or acceptance of Goods or Services provided by the Supplier shall constitute a warranty of acceptance of these Terms and conditions.
3. If an Order is placed by a Purchaser as agent for a principal whether the same is disclosed or undisclosed the Purchaser shall be jointly and severally liable with the principal for all obligations in respect of payment or otherwise arising out of this Agreement, and guarantees payment of the Goods and Services to the Supplier.
4. Further, if Goods or Services are supplied to a vessel then the Vessel, its Master and its Owners/Managers shall be jointly and severally be liable with the Purchaser for all obligations in respect of payment or otherwise arising out of this Agreement.
5. Any variation, cancellation or waiver of these Terms and Conditions in part or in full must be made in writing signed by a Director of Southern Cross Marine Supplies. No other person has or will be given any authority whatsoever to agree any variation, cancellation or waiver of these Terms and Conditions.
6. The Supplier reserves the right to revise these Terms and Conditions from time to time. All revisions shall be effective from the date of positing on the Website. The Purchaser agrees to and accepts any revisions and shall be responsible for informing itself of any such revisions by referring to the Website.
Definitions and Interpretation
9. The Order is accepted by the Supplier only when the Supplier has sent a written confirmation to the Purchaser confirming its agreement to fulfil the Order in whole or in part ("Order Confirmation").
10. The Supplier is not obliged to accept any Order or part Order.
11. The Supplier's Order Confirmation shall constitute a binding contract between the Parties and the application of these Terms and Conditions only. Any Terms and Conditions the Purchaser may have will be inapplicable.
12. If a Purchaser does not, within 24 hours of receipt of the Order Confirmation, notify the Supplier in writing of any inaccuracies, the Order Confirmation is deemed to be expressly agreed between the Parties.
13. The Purchaser agrees to promptly provide all necessary information, documentation and approvals to the Supplier to facilitate the delivery of the Goods and Services within the time provided by the Order Confirmation. If information, documentation and approvals are not provided promptly by the Purchaser the Supplier may, at its absolute discretion, refuse to supply the Goods and Services.
14. The Supplier shall not be responsible for any failure or restriction in the service provided on its Website and does not guarantee the service will be fault free. Access to the Website may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services.
16. The Purchaser shall pay the purchase price, the deposit and any other amount due in full, free of bank charges, and within the time specified in the invoice/statement . The Supplier shall be entitled to claim interest of 2% per month (before as well as after judgement) on any overdue payment from the due date until payment in full is received by the Supplier.
17. If payment is overdue, the Supplier is entitled to claim and recover full compensation for collection costs and expenses in and out of court and all legal costs and expenses on a full indemnity basis.
18. GST - Where the Agreement requires either Party to pay for, reimburse or contribute to any expense, loss or outgoing ("reimbursable expense") suffered or incurred by the other Party, the amount required to be paid, reimbursed or contributed by the first Party will be the sum of:
(a) The amount of the reimbursable expense net of input tax credits (if any) to which the other Party is entitled in respect of the reimbursable expense ("net amount"); and
19. The Purchaser shall be liable to pay any tax, duty, levy or charge of any kind imposed by any state or state authority or other authority by reason of the supply of the Goods and/or Services. Where the Supplier incurs expenses or liabilities or is subject to claims in respect of such payments the Purchaser shall indemnify the Supplier fully and hold it harmless in respect of all penalties, claims, damages, losses, cost and expense whatsoever arising incurred in connection with such taxes, duties, levies, charges or similar items of expenditure.
Delivery of Goods and Services
21. The Purchaser is responsible for making suitable arrangements to receive the Goods and Services and providing all necessary information and instructions.
22. In the event that any Goods are damaged, lost or stolen during or following delivery to the Vessel, the Supplier does not accept liability, nor does the Supplier accept any liability for any damage to the Goods or the Purchaser's Vessel during the delivery and supply process.
23. The Purchaser or its representatives shall confirm safe receipt in writing immediately on delivery and must inspect the Goods and Services on delivery and notify the Supplier of any defects within 24 hours after delivery.
Lack of conformity – Purchaser's
25. The Purchaser loses any claim based on lack of conformity where such lack of conformity would have been discovered on reasonable inspection at the time of delivery but was not notified to the Supplier in accordance with Clause 24. Except as provided by Clause 24, the Purchaser shall have no further rights or claims in respect of lack of conformity on the part of the Supplier.
26. Should the Supplier deliver goods in excess of that stated in the Order Confirmation the Purchaser shall immediately inform the Supplier at the time of delivery and immediately return the excess. Any and all costs arising from the Purchaser's failure to immediately notify the Supplier of any excess shall be for the Purchaser's account. If the Purchaser fails to return the excess prior to departure of the Vessel the Purchaser is deemed to have accepted the excess and agrees to pay for the same.
Limit of liability and Force Majeure
27. Except where otherwise expressly provided for in these Terms and Conditions the Supplier shall not be liable in tort, (including but not limited to negligence) contract, statutory duty, misrepresentation or otherwise for any loss, damage or delay whatsoever and howsoever arising from:
a) The act or omission of the Purchaser or any or its servants, agents or employees;
28. The Supplier shall not be liable in tort (including but not limited to negligence) contract, statutory duty, misrepresentation or otherwise for loss or damage howsoever caused (whether or not indirect or consequential) to property other than the Goods themselves and shall not be liable for any pure economic loss, loss of profit, business, contracts, anticipated savings, goodwill, revenue, wasted expenditure, loss of market, consequential loss, indirect loss, delay or deviation howsoever arising.
29. The Supplier will not be liable to the Purchaser by way of representation (unless fraudulent), common law duty, or under any express or implied term of the contract for any losses which are not foreseeable by the Purchaser and the Supplier when the Agreement is formed and losses which are not caused by any breach of the Supplier and business or trade losses including, without limitation, loss of profits, loss of goodwill, loss of reputation and loss of business.
30. Without prejudice to the limitations of liability set out above the Supplier's liability howsoever arising out of tort (including but not limited to negligence), contract, statutory duty, misrepresentation or otherwise shall not exceed the total value of the Goods and/or Services as set out in the Order Confirmation, or the sum of Thirty-Thousand Australian Dollars, whichever is lower.
31. Nothing in this Agreement excludes or limits the Supplier's liability for death or personal injury caused by the Suppliers' negligence, or for any matter which it would be illegal for the Supplier to exclude or attempt to exclude, or for fraud or fraudulent misrepresentation.
Claims presentation and time bar
33. Further, if proceedings are not commenced within three months of the date of delivery of the Goods and/or Services or the date on which the Goods and/or Services should have been delivered then the claim shall be deemed to be waived and absolutely time barred.
Handling of Third Party Goods
34b When the Vendor instructs any third party in connection with the clearance, handling or movement of Purchaserís Goods it does so strictly as agent for the Purchaser and the Purchaser authorises the Vendor to act as its agent and to contract on the usual terms of those third parties.
34c The Purchaser is responsible for fully and accurately declaring, describing and documenting the contents of any package or packages to the Vendor for handling, such declaration, description and documentation being appropriate for the place at which the Vendor is required to handle the Purchaserís goods.
34d All Purchaserís Goods shall be properly and adequately packaged for the period of transit and storage envisaged. The Vendor shall not be responsible for inspecting said packaging, or taking any remedial steps in relation the deficiencies. The Vendor shall not be responsible for inspecting the condition of the contents of any packages for loss or damage. The Purchaser shall remain at all times responsible for compliance with the ISPS Code as concerns the acceptance of goods on board vessels.
34e Where the Purchaserís Goods require particular handling or care the Vendor shall only be required to provide such handling and care if it has agreed in writing to do so, in advance of the Goods being consigned to them.
34f It is envisaged that the Vendors charges shall be agreed in advance of goods being consigned to them. Where no such agreement is in place the Vendor shall be entitled to charge a reasonable sum, consistent with similar work for similar clients.
34g The Purchase shall insure the Purchaserís Goods for all carriage and storage risks during the period that they are under the custody, care or control of the Vendor on terms that the insurer waives any rights of subrogation or recourse against the Vendor. The Vendor has no obligation or requirement to insure the Purchaserís Goods.
34h the Vendor shall not be liable for loss or damage to Purchaserís Goods otherwise than by its own negligence or default. Any claims in respect of Purchaserís Goods lost or damaged whilst in the custody of third parties instructed on behalf of the Purchaser by the Vendor shall be made directly to the relevant third party, whose details the Vendor shall provide.
34i Where the Vendor is liable in respect of Goods lost or damaged then its liability shall be strictly limited to 2 SDRs per kilo of the weight of the Purchaserís Goods lost or damaged, and such limits shall apply in all cases including loss or damage caused by the Vendorís breach of contract or negligence. The Vendor shall not be liable for any other losses, claims or damages and for the avoidance of doubt shall not be liable for losses arising from a failure to deliver or a delay in delivery of the Purchaserís goods, including losses arising from delay to the vessel, including detention, demurrage or periods off-hire.
34j The Vendor shall have a right of general lien over Purchaserís goods and any documents related thereto in respect of any sums due from the Purchaser, whether related to the Purchaserís Goods under lien or any other Contract.
34k Where the Purchaserís Goods are (i) held under lien; or (ii) held for a period of more than 60 days without instructions for their delivery or forwarding the Purchaser shall be entitled to sell or dispose of them, upon 5 daysí notice to the Purchaser of an intention to do so, and may apply the proceeds to any sums due from the Purchaser.
34l The Purchaser shall immediately upon written demand from the Vendor fully indemnify the Vendor for all costs, expenses, penalties, fines, taxes, duties or other dues arising from the handling and delivery of Purchaserís Goods including those arising from the Purchaserís incorrect or false declaration of the content of any package.
36. The Purchaser shall use, deal with, store and handle the Goods always in accordance with the manufacturers and industry guidelines and the Purchaser assumes all risk and liability for the proper use and handling of the Goods after delivery and shall indemnify the Supplier and hold the Supplier harmless from all consequences including, but not limited to, all liability, costs and expenses whatsoever arising from improper use or improper handling, including but not limited to claims by third parties.
37. The Purchaser shall defend, indemnify and hold harmless the Supplier against all penalties, claims, damages, costs, liabilities, loss, and expenses whatsoever arising in connection of supply and subsequent use of the Goods and/or Services.
Cancellation, confidentiality, representations
39. The Parties must keep all Confidential Information private and confidential and must not use or disclose that Confidential Information except as necessary for the performance of this Agreement.
40. The Parties must store all Confidential Information in a way that minimises the risk of unauthorised access.
41. The Parties agree that when entering into this Agreement they have not relied upon oral or written statements, representations, warranties, assurances, undertakings made by either Party other than those set out expressly in the Agreement and the Parties waive all rights in relation to the same.
43. None of the rights and obligations of the Purchaser under this Agreement may be assigned or transferred in whole or in part without the prior written consent of the Supplier.
Applicable Law and Jurisdiction
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