terms and conditions of trade

1. Definitions

“OBE” means Onboard Electrical Pty Ltd, its successors, sub-contractors and / or any person acting on behalf of and with the authority of Onboard Electrical Pty Ltd.

“Customer” means the person(s) buying the Goods or the person requesting works to be carried out, as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.

“Goods” means all Goods and Services supplied by OBE to the Customer at the Customer’s request from time to time. Where the context so permits, the terms ‘Goods’ or ‘Services’ will be interchangeable for the other.

 “Works” means any work carried out or to be performed by OBE at the request of the Customer or his agent, including but not limited to:

  • All repairs, breakdowns and maintenance or improvements

  • Supply of all machinery, Parts, materials, equipment and labour

“Price” means the Price payable for the Goods or Works as agreed by OBE and the Customer in accordance with these Terms and Conditions.

 

2. Authorisation, Ownership and Control of Vessel

  1. The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

  2. The Customer warrants that he or she is the owner of the vessel or an authorised agent of the vessel’s owner, having authority from the owner of the vessel to request that OBE perform the Works.

  3. The Customer will give OBE at least 7 days written notice of any proposed change of ownership of the Customer and any other change in the Customer’s details including but not limited to address and contact information.  Failure to comply with this clause will result in the Customer being liable to OBE for any subsequent loss or damage incurred by OBE. 

3. Payment conditions

  1. The Customer accepts that a minimum call out fee of $110 plus GST (1 hour) will be charged for all work, including inspection of a vessel for the purpose of providing a quotation for work to be carried out, unless OBE has expressly waived this fee in writing prior to the inspection.  Travel expenses may also be charged to the Customer at the discretion of OBE.

  2. OBE reserves the right to charge a customer for a fair and reasonable amount of remote technical advice and support, i.e. over the phone and or email.   The Price charged will be based on the normal hourly charge out rate.  

  3. The Price of Goods or Works carried out will be the amount stated on the invoice

  4. The Price on any quotation, unless stated to be fixed will be an estimate only and will be valid for the time stated on the quotation, in the absence of a specified time on any quotation, for a period of 30 days.

  5. OBE reserves the right to make changes to the Price if a variation to the Customer’s quotation is requested and / or the Goods originally quoted are required to be substituted for other Goods for any reason, which are of a different Price.

  6. Time for payment for the Goods will be at the time of placing an order unless otherwise agreed in writing.

  7. Time for payment for Works will be upon completion of any works done and due immediately upon receipt of an invoice from OBE or as otherwise specified on the invoice or otherwise agreed in writing.

  8. A late or missed payment will attract an automatic administration fee of $49.

  9. A payment of a deposit or part payment is required prior to the commencement of any works, in the following but not limited circumstances:

    1. Works estimated at a price of more than $1000

    2. For the costs of all Goods required to be ordered for the completion of the Works

    3. Works estimated to exceed 7 days

  10. If Works are longer than 7 days, OBE reserves the right to issue progress invoices for Works completed to date.

  11. Where a deposit and/or progress invoice is issued and outstanding, OBE reserves the right to refuse to commence Works even if a commencement date has already been agreed to by OBE and the Customer, or if Works have already commenced, to cease providing any further service to the customer until payment all outstanding monies owing to OBE are paid.

  12. If OBE is unable to complete or continue any Works or is delayed for any reason beyond its control, including but not limited to,

    1. where Works are required to be completed by a third party before OBE can continue and/or

    2. in the event there is a hold up of any parts or goods required for the completion of Works,

OBE will not be liable and will issue a progress invoice for works completed to date.

  1. Payment may be made by electronic / online banking, bank cheque, credit card (credit card payments will incur a fee of 1.75% and 2.9% for international cards) or by any other method agreed by the Customer and OBE.

 

4. Acceptance

  1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions, if the Customer

    1. places an order for any Goods or Works to be carried out

    2. accepts any Goods,

    3. requests a quote or works to be carried out on a Vessel for any works including but not limited to, inspection, repairs, maintenance and/or improvements,

    4. pays any deposit or part payment for works to be carried out,

    5. expresses agreement verbally or in writing to acceptance of any written quote,

    6. accepts commencement of any work on the vessel

  2. These terms and conditions may only be amended with OBE’s consent in writing and will prevail to the extent of any inconsistency with any other document or agreement between the Customer and OBE.

5. Default and Consequences of Default

  1. Without prejudice to any other remedies OBE may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, OBE may suspend or terminate the supply of any Goods or Services to the Customer.

  2. Without prejudice to OBE’s other remedies at law, OBE will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to OBE will, whether or not due for payment, become immediately payable if:

    1. The Customer dies;

    2. Any money payable to OBE becomes overdue, or in the opinion of OBE, the Customer will be unable to make a payment when it falls due;

    3. The Customer stops payment, becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes the assignment for the benefit of its creditors; or

    4. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

  3. Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5% per calendar month (and at OBE’s sole discretion such interest will compound monthly at such a rate) after as well as before any judgment.

  4. If the Customer owes to OBE any money the Customer will indemnify OBE from and against all costs and disbursements incurred by OBE in recovering the debt (including but not limited to internal administration fees, legal costs of a solicitor and own client basis, OBE’s collection agency.

 

6. Lien & Stoppage in Transit

  1. In the event that full and complete payment for the whole Price of the Goods or Works has not yet been received by OBE or is dishonored, OBE will have

    1. A lien on the Goods or Works done,

    2. The right to retain them for the the Price while OBE is in possession of the Goods,

    3. A right of resale,

    4. The foregoing right of disposal, provided that the lien of OBE will continue despite the commencement of proceedings or judgment for the Price having been obtained.

 

7. Unpaid Rights to OBE

  1. Where OBE is in possession of any item left by the Customer for the purpose of the carrying out of any Works in relation to the item and OBE has not received or been tendered the whole of any moneys owing to it by the Customer, OBE will have, until all moneys owing to OBE are paid:

    1. A lien on the item; and

    2. The right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected Goods.

  2. The Lien of OBE will continue despite the commencement of proceedings, or judgment for any moneys owing to OBE having been obtained against the Customer.

 

8. Building and Construction Industry Payments Act 2004 (QLD)

  1. At the sole discretion of OBE, if there are any disputes or claims for unpaid Goods and or Services then the provisions of the Building Construction Industry Payments Act 2004 (Qld) may apply.

  2. Nothing in this agreement is intended to have the affect of contacting out of any applicable provisions of the Building Construction Industry Payments Act 2004, except to the extent permitted by the Act where applicable.

9. Grant of Access and Liability

  1. The Customer must ensure the safe and clear access to the vessel and/or worksite at all times to enable OBE to undertake the works.

  2. OBE does not accept liability for any loss or damage to the vessel, worksite, person property or its surrounding areas, except in the case of negligence.

  3. The customer acknowledges that any equipment or personal property left at the premises of OBE, vessel or worksite, is left at the sole risk of the customer.  The Customer should ensure that all insurance policies in respect of the Customer’s equipment and/or personal property are up to date and adequate.

 

10. Delivery of Goods and passing of risk

  1. Delivery of Goods will occur at the time the Customer or Customer’s nominated carrier takes possession of the Goods either at the place of business of OBE or upon delivery of the Goods to the nominated address of the Customer, even if the Customer is not present at the address.

  2. If Goods are to be delivered to the Customer, a delivery fee may be charged

  3. Delivery of the Goods to a carrier or third party, for the purpose of transmission of the Goods to the Customer will be deemed to be delivery of the Goods to the Customer.

  4. Any insurance costs of the Goods will be paid for by the Customer and due in full on the date of payment of the invoice for Goods sold.  The carrier will be deemed to be the Customer’s agent.

  5. OBE cannot guarantee delivery dates and any date provided is deemed to be an estimate only. 

  6. The Customer must accept delivery of the Goods even if they are delivered late and OBE will not accept liability for any loss or damage incurred by the Customer as a result of any late delivery.

  7. Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before delivery.

  8. In the event that the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, OBE is entitled to receive all insurance proceeds payable for the Goods.  The production of these terms and conditions by OBE is sufficient evidence of OBE’s rights to receive the insurance proceeds, without the need for any person dealing with OBE to make further inquiries.

  9. Goods delivered outside of the Customer’s premises for collection to an unattended location as requested by the Customer will be left at the sole risk of the Customer.

11. Customer waiver and acknowledgement

  1. The Customer acknowledges that it is responsible for undertaking its own independent research in relation to the purchase of any Goods and makes any purchases based solely upon the reliance of its own skill and judgment.

  2. The Customer herby waives its right to rescind, or cancel the contract, or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made by OBE or any of its representatives. 

  3. OBE does not accept responsibility for any term, condition, representation or warranty other than the warranty given by the manufacturer which will be personal to the Customer and is not transferable to any subsequent Customer.

 

12. Title and ownership of Goods

  1. Ownership of the Goods passes when

    1. All amounts owing to OBE have been paid in full and if paid other than cash, cleared, honoured or recognised by OBE.

    2. All other obligations owing to OBE have been met by the Customer

  2. The Customer is only a Bailee of the Goods until ownership passes to the Customer and must return the Goods to OBE upon the request of OBE.

  3. Any benefit of the Customer’s insurance of the Goods is held on trust by the Customer for OBE and the Customer must pay to OBE any proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

  4. The Customer is not permitted to sell, dispose or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer does, then it must hold the proceeds of any such act on trust for OBE and deliver the proceeds to OBE on demand.

  5. The Customer is not permitted to convert or process the Goods or intermix them with other Goods but if the Customer does so, then the Customer holds the resulting product on trust for the benefit of OBE and must sell, dispose of or return the resulting product to OBE as it so directs.

  6. The Customer irrevocably authorises OBE to enter any premises where OBE believes the Goods are kept and recover passion of the Goods.

  7. OBE may recover possession of any Goods in transit whether or not delivery has occurred.

  8. The Customer may not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of OBE

  9. OBE may commence proceedings to recover the Price of the Goods sold even if the ownership of the Goods has not passed to the Customer

 

13. Personal Property Securities Act 2009 ("PPSA")

  1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

  2. Upon assenting to these terms and conditions in writing, the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by OBE to the Customer.

  3. The Customer undertakes

    1. to promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which OBE may reasonably require to;

      1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

      2. register any other document required to be registered by the PPSA; or

      3. correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);

    2. indemnify, and upon demand reimburse, OBE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

    3. not register a financing change statement in respect of a security interest without the prior written consent of OBE;

    4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of OBE;

    5. immediately advise OBE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

  4. OBE and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

  5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

  6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

  7. Unless otherwise agreed to in writing by OBE, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA

  8. The Customer must unconditionally ratify any actions taken by OBE under clauses 10.3 to 10.5.

  9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

14. Security and Charge

  1. In consideration of OBE agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

  2. The Customer indemnifies OBE from and against all OBE's costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising OBE's rights under this clause.

  3. The Customer irrevocably appoints OBE and each director of OBE as the Customer's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Customer's behalf.

 

15. Guarantees, Warranties and returns

  1. It is the responsibility of the Customer to inspect all Goods and Works done immediately upon receipt of Goods or on completion of any Works carried out by OBE.

  2. Notification of any evident Defects must be made within 7 days of delivery of Goods or upon notification by OBE of completion of Works and must be in writing, with details of any alleged defect or damage, shortage in quantity, or failure to comply with the description or quote.

  3. Goods and Services supplied by OBE come with guarantees that cannot be excluded under the Australian Consumer Law, including rights under the Competition and Consumer Act 2010 (CCA).  The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.  The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

  4. OBE acknowledges that nothing in these terms and conditions purports to modify or exclude the non-excluded guarantees under applicable state and Commonwealth Law.

  5. Liability by OBE in respect of these statutory warranties is limited to the fullest extent permitted by the law and OBE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods or Service.

  6. If the Customer is a consumer as defined by the CCA, OBE’s liability is limited to the extent permitted by section 64A of Schedule 2 of the Act.

  7. If under the CCA, OBE is required to replace the Goods and is unable to do so for any reason, OBE can instead refund any money paid for the Goods by the Customer.

  8. If the Customer is not a consumer as defined by the CCA, OBE’s liability for any defect or damage in the Goods is

    1. limited to the value of any express warranty or warranty card provided to the Customer by OBE at OBE’s sole discretion;

    2. limited to any warranty to which the Customer is entitled, if OBE is not the manufacturer of the Goods.

    3. Otherwise negated absolutely.

  9. Subject to this clause, returns will only be accepted provided that:

    1. The Customer has notified OBE of any defect within the applicable timeframe in writing; and

    2. OBE has agreed that the Goods are defective; and

    3. the Goods are returned within a reasonable time at the Customer's cost (if that cost is not significant); and

    4. the Goods are returned in as close a condition to that in which they were delivered as is possible.

  10. Notwithstanding the aforementioned clauses but subject to the CCA, OBE will not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

    1. the Customer failing to properly maintain or store any Goods;

    2. the Customer using the Goods for any purpose other than that for which they were designed;

    3. the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

    4. the Customer failing to follow any instructions or guidelines provided by OBE;

    5. fair wear and tear, any accident, or act of God.

  11. Notwithstanding anything contained in this clause if OBE is required by a law to accept a return then OBE will only accept a return on the conditions imposed by that law.

  12. If the Customer has notified OBE within 7 days in writing and OBE agrees that the works are deemed faulty, requiring repair, or OBE is required by law to repair any works done by it, then OBE will have priority over any third party to carry out those repairs.  In the event that is not possible for OBE to carry out the repairs, OBE may appoint a third party to carry out the repairs on its behalf. 

  13. The Customer may not appoint a third party to carry out any works without the prior approval in writing from OBE, and any such works carried out by a third party, whether in relation to the fixing of any damage or otherwise will constitute a waiver of any guarantee or warranty.  

 

16. Intellectual Property

  1. Copyright in any custom made design, drawings and/or documents made for any Customer by OBE remains the property of OBE and any such documents, or photos or drawings or anything else in relation to those designs may be used however so OBE desires at no cost to OBE.

  2. The Customer warrants that all designs, specifications or instructions given to OBE for the purpose of creating a custom made design for the Customer does not cause OBE to infringe any intellectual property and the Customer agrees to indemnify OBE against any action taken by a third party against OBE in respect of any such infringement.

17. Privacy Act 1988

  1. The Customer agrees for OBE to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to any credit provided by OBE or any outstanding money owing to OBE.

  2. The Customer consents to OBE being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

  3. The Customer agrees that personal credit information provided may be used and retained by OBE for the following purposes (and for other purposes as will be agreed between the Customer and OBE or required by law from time to time):

    1. the provision of Goods; and/or

    2. analysing, verifying and/or checking the Customer's credit, payment and/or status in relation to the provision of Goods; and/or

    3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

    4. enabling the daily operation of Customer's account and/or the collection of amounts outstanding in the Customer's

  4. OBE may give information about the Customer to a credit reporting agency for the following purposes:

    1. to obtain a consumer credit report about the Customer;

    2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

  5. The information given to the credit reporting agency may include:

    1. personal particulars (the Customer's name, sex, address, previous addresses, date of birth, name of employer and driver's licence number);

    2. details concerning the Customer's application for credit or commercial credit and the amount requested;

    3. advice that OBE is a current credit provider to the Customer;

    4. advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

    5. that the Customer's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

    6. information that, in the opinion of OBE, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer's credit obligations);

    7. advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;

    8. that credit provided to the Customer by OBE has been paid or otherwise discharged.

 

 18. General

  1. These terms and conditions and any other contract to which they apply will be governed by and subject to the laws and jurisdiction of the courts of the state of Queensland, Australia.

  2. The failure by OBE to enforce any provision of these terms and conditions will not constitute a waiver of that provision, nor will it affect the rights of OBE to subsequently enforce that provision.  If any provision of these terms and condition are deemed to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.

  3. Other than the aforementioned statutory obligations under the CCA, OBE will be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach of OBE of these terms and conditions.  Any liability of OBE will be limited to damages which under no circumstances are to exceed the Price of the Goods or Services.

  4. In the event of any dispute in relation to an invoice, between the Customer and OBE, the Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to OBE by the Customer nor withhold any payment of any invoice.

  5. OBE may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

  6. These terms and conditions are subject to change by OBE at any time and any such changes will take effect from the date on which OBE notifies the Customer of the Change.  Any future request by the Customer, for OBE to provide Goods or Services or to carry out Works will constitute acceptance of the amended terms and conditions.

  7. Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.