➢ “Surveyor”/”Consultant” means the Surveyor/Consultant operating under these terms and conditions.
➢ “Client” means the party at whose request or on whose behalf the Surveyor/Consultant undertakes surveying or consulting services.
➢ “Report” means any final report, document, or statement supplied by the Surveyor/Consultant in connection with instructions received from the Client.
➢ “Disbursements” means the cost of all reasonable photography, reproduction of drawings, diagrams, sketches, printing, duplicating, electronic transmission fees, and all reasonable out-of-pocket expenses including travel, refreshments, and hotel accommodation where an overnight stay is required.
➢ Receipts for Disbursements will only be retained and presented if requested by the Client prior to the commencement of work/appointments, or within 7 days of the Client receiving the invoice. In all other cases, the Client agrees to accept the invoice issued by Optimum Marine Consulting Pty Ltd as the final and conclusive statement for Disbursements.
➢ “Fees” means the amounts charged by the Surveyor/Consultant to the Client, inclusive of any applicable Goods and Services Tax (GST) and Disbursements.
The Surveyor/Consultant shall provide its services strictly in accordance with these terms and conditions.
The Client shall set out in writing the specific services required. The Surveyor/Consultant will confirm in writing its acceptance of the instructions or specify the services it will perform in connection with those instructions. Once both parties agree on the services to be performed (the “Services”), any subsequent variations or additions must be agreed upon by both parties in writing. For the avoidance of doubt, if instructions are given verbally but the Surveyor/Consultant confirms acceptance, the Services will still be governed by these conditions.
The Client shall pay all Fees to Optimum Marine Consulting punctually in accordance with these conditions. Payment is required prior to the release of the Report to the Client, and in any event, immediately upon presentation of the invoice, unless otherwise agreed in writing. Any delay in payment shall entitle Optimum Marine Consulting to interest charged at 10% above the original invoice value.
➢ (a) Client: The Client undertakes to ensure that comprehensive instructions are provided to the Surveyor/Consultant in writing and in sufficient time to enable the Services to be performed effectively and efficiently. The Client must secure all necessary access for the Surveyor/Consultant to goods, premises, vessels, installations, and transport, and ensure that all appropriate safety measures are taken to provide a safe and secure working environment. The Surveyor/Consultant shall not be liable for any loss or damage resulting from late, incomplete, inadequate, inaccurate, or ambiguous instructions.
➢ (b) Surveyor: The Surveyor/Consultant shall exercise reasonable care and skill in performing the Services in accordance with sound marine surveying and consulting practices.
➢ (c) Reporting: The Surveyor/Consultant shall submit a final written Report to the Client following the completion of the agreed Services, describing the findings, condition, and/or quality of the subject matter, unless expressly instructed otherwise by the Client.
➢ (d) Confidentiality: The Surveyor/Consultant undertakes not to disclose any information provided in confidence by the Client to any third party, nor permit third-party access to such information, unless the Client grants express written permission or where required to do so by an order of a competent court of law. The Client undertakes to identify clearly in writing any information that is provided in confidence.
➢ (e) Property: Intellectual property and ownership rights in respect of all original work created by the Surveyor/Consultant remain the sole property of the Surveyor/Consultant.
➢ (f) Conflict of Interest / Qualification: The Surveyor/Consultant shall promptly notify the Client of any matter, including a conflict of interest or a lack of suitable qualifications or experience which would render it undesirable to continue the appointment. The Client shall remain responsible for payment of the Surveyor/Consultant’s Fees up to the date of such notification.
➢ (a) Without prejudice to Clause 7, the Surveyor/Consultant shall be under no liability whatsoever to the Client for any loss, damage, delay, or expense of any nature, whether direct or indirect and howsoever arising, UNLESS the same is proven to have resulted solely from the negligence, gross negligence, or wilful default of the Surveyor/Consultant, its employees, agents, or sub-contractors.
➢ (b) Where the consumer guarantees under the Australian Consumer Law do not apply, and the Client proves that the loss, damage, delay, or expense was caused by the negligence, gross negligence, or wilful default of the Surveyor/Consultant, then except where such loss resulted from a personal act or omission committed with intent to cause harm or recklessly and with knowledge that such loss would probably result the Surveyor/Consultant’s liability for each incident or series of related incidents shall never exceed ten times the Surveyor/Consultant’s charges or Australian $10,000, whichever is the lesser.
➢ (c) Notwithstanding anything in these conditions, this Contract is subject to the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010) if and to the extent that consumer guarantees apply and prevent the exclusion, restriction, or modification of such guarantees. The liability of the Surveyor/Consultant for breach of any applicable consumer guarantee (other than for services ordinarily acquired for personal, domestic, or household consumption) shall be limited, at the option of the Surveyor/Consultant, to re-supplying the Services or paying the cost of having the Services supplied again.
➢ (d) The Surveyor/Consultant shall not be liable for loss of or damage to equipment or other items placed at its disposal by or on behalf of the Client, regardless of how such loss or damage occurs.
➢ (e) Where a valuation opinion is provided, the Surveyor/Consultant shall not be responsible for any losses arising from changes in market value due to the geographical location of the vessel or shifting market conditions.
Except to the extent and solely for the amount that the Surveyor/Consultant is held liable under Clause 6, the Client undertakes to indemnify and hold harmless the Surveyor/Consultant, its employees, agents, and sub-contractors against all actions, proceedings, claims, demands, or liabilities whatsoever or howsoever arising brought against them or incurred by them. This includes indemnifying them against all costs, losses, damages, and expenses (including legal costs on a full indemnity basis) suffered or incurred directly or indirectly in the course of providing the Services under these conditions.
Neither the Surveyor/Consultant nor the Client shall, except as otherwise provided in these conditions, be responsible for any loss, damage, delay, or failure in performance hereunder resulting from an Act of God, war, seizure under legal process, quarantine restrictions, strikes, boycotts, lockouts, riots, civil commotions, or the arrest or restraint of princes, rulers, or people.
The Surveyor/Consultant shall maintain, at no cost to the Client, Professional Liability Insurance covering the losses and damages for which the Surveyor/Consultant may be held liable under these terms and conditions.
The Surveyor/Consultant retains the right to sub-contract any of the services provided under these conditions, subject to the Client’s right to object on reasonable grounds. In the event of sub-contracting, the Surveyor/Consultant shall remain fully liable for the proper performance of its obligations under these conditions.
The Surveyor/Consultant shall be discharged of all liability for any claim for loss, damage, delay, or expense unless legal proceedings are brought in the proper forum, and written notice received by the Surveyor/Consultant, within 12 months from the date on which the final Report was submitted to the Client (or, if no report was issued, the date on which the report should have been issued).
Credit terms are subject to the acceptance of a formal Credit Application and verification of trade references. Standard trading terms are strictly 30 days net from the invoice date.
Sanctions for Late Payments: In the event that the Customer defaults on payments due to the Company in accordance with the terms above, the Company may, at its absolute discretion:
➢ Take legal action to recover outstanding balances if payment is not received within 45 days of the due date. All recovery costs, including debt collection commissions, solicitor fees, and out-of-pocket expenses, shall be borne entirely by the Customer, and credit facilities will be revoked.
➢ Notify the Client in writing if actual costs exceed the original quote. If the Client does not dispute the variance within 24 hours of notification, the increased invoice amount shall stand.
➢ Periodically review and revoke credit limits at any time due to poor payment history, whereupon all outstanding amounts shall become payable immediately and the account will revert to a Cash on Delivery (COD) basis prior to any further services.
These conditions shall be governed by, and construed in accordance with, the laws of Queensland, Australia. Any dispute arising out of or in connection with these terms shall be subject to the exclusive jurisdiction of the Courts of Queensland.
