DERMODY DIVING

& MARINE SERVICES

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DERMODY DIVING and MARINE SERVICES PTY LTD



TERMS AND CONDITIONS OF SALE AND SERVICE



1.Terms of this agreement

1.1.For the purposes of this agreement:

1.1.1.“Dermody Diving” means Dermody Diving & Marine Services Pty Ltd (A.C.N. 070 304).

1.1.2.The “Customer” means the person, company, trust or business entity which has engaged Dermody Diving to provide goods and services.

1.2.These terms are incorporated into any invoice, quote, statement, variation, contract, or similar agreement supplied by Dermody Diving to the Customer.

1.3.These terms and conditions supersede any other agreements, arrangements, or understandings (whether written or oral).

1.4.These terms and conditions supersede any conditions contained in the Customer’s order unless Dermody Diving has expressly agreed in writing by initialing each such requested Customer Term(s). 

1.5.No variation waiver, or cancellation of the Agreement will be effective unless signed in writing by each party and any failure by Dermody Diving to enforce any clause of this Agreement will not be construed as a waiver of Dermody Diving rights under this agreement.


2.Quotation Validity

2.1.Unless otherwise agreed in writing, a quotation provided by Dermody Diving may be accepted up to 30 days from the quotation date, after which Dermody Diving reserves the right to amend or withdraw it without notice.


3.Credit Information

3.1.The Customer acknowledges and agrees that if Dermody Diving requires financial information about the Customer for any credit application which attracts the operation of the Privacy Act 1988 (CTH) Dermody Diving may:

3.1.1.Disclose and collect commercial credit information about the Customer, and if the Customer is a company, about its directors and officers provided to Dermody Diving in an order or a credit application or for determining credit worthiness.

3.1.2.Disclose certain personal information to a credit reporting agency for the purpose of obtaining and maintaining a credit information file.

3.1.3.To a credit provider other than Dermody Diving or to a credit reporting agency, for the purpose of collecting outstanding amounts owed by the Customer to Dermody Diving.


4.Site Charges and Assumptions

4.1.Unless otherwise agreed in writing, charges for work performed:

4.1.1.Are based on work being carried out during “Normal Working Hours” being (0600 to 1800) Monday to Friday except for public holidays and subject to alteration by Dermody Diving.

4.1.2.Are based on having continuous, uninterrupted, and unhindered access to the required people, equipment, facilities and areas where the work is to be carried out.

4.1.3.Do not cover extraneous work, patching/painting,  lifting or refitting, site inductions, building work or decoration and should Dermody Diving agree to carry out such work at the request of the Customer then Dermody Diving shall not be liable for any damage arising.

4.2.The Customer agrees to pay for all additional costs arising from 4.1 above and any alteration to the specifications required by the Customer including any interruption or delays by the Customer, its employees, agents or other trades during the course of work performed.

4.3.If it becomes necessary to pay any additional site allowances, other that a State or Federal Award or amounts in excess of any current workplace agreement applicable to the type of work being performed, these costs will be added to the Dermody Diving Fee (which means all amounts payable under this Agreement by the Customer to Dermody Diving for the Products and Services).

4.4.If Dermody Diving is delayed in reaching completion of the services by the date agreed between the parties by an event outside of its control, including those listed in clause 4.1 above, then Dermody Diving shall be entitled to a reasonable extension of time to complete the services.

4.5.The Customer agrees to pay for any variations to the services required by the Customer including an amount for any design, management, overheads and profit.

4.6.Emergency service call-outs will be charged in accordance with Dermody Diving’s standard feeds for such emergency services.


5.Customer Responsibilities

5.1.The Customer shall:

5.1.1.Advise Dermody Diving of the existence of any concealed pipes, wires, and cables for water, gas electricity, telephone or other services affecting the premises and shall confirm the location of such services to Dermody Diving’s workers before work commences.  In the absence of such notice Dermody Diving accepts no liability for any loss or damage to such services or any consequence thereof and the Customer agrees to indemnity Dermody Diving against any claim whatsoever for any loss or liability under this clause.

5.1.2.Provide adequate facilities at the premises at no cost to Dermody Diving including parking, power, lifting equipment, scaffolding, scissor lifts and rubbish removal skips.

5.1.3.Ensure that the premises must at all times be a safe working environment and (without limitation) will not contain asbestos or similar hazards.

5.1.4.Indemnify Dermody Diving against any claims for the failure of the fire alarm monitoring equipment telecommunication carrier lines, power supply, costs relating to fire brigade charges, or relocation of equipment

6.Delivery

6.1.Dermody Diving shall use reasonable endeavors to complete delivery of the Products and Services.  However delivery dates or periods quoted are estimates only and are subject to prompt receipt of all Customer information, other material, and permits from the Customer necessary to allow Dermody Diving to proceed with the delivery of the product and services. Dermody Diving accepts no liability whatsoever for any loss or damage suffered by the Customer as a consequence of any delay or failure to deliver the Products and Services.

6.2.Title to and ownership of the products shall pass upon delivery to the Customer


7.Warranty and Products Returns

7.1.Subject to 7.2:

7.1.1. the products supplied by Dermody Diving to the Customer under this Agreement are covered by a 12 month warranty which shall commence from the date of completion of installation of Products, or for Products sold on a supply only or supply and commission basis upon delivery of the Products to the Customer (“Warranty Period);

7.1.2.During the warranty period, any products that prove to be defective will be replaced by Dermody Diving at its option;

7.1.3.Dermody Diving will accept products returned for credit where Dermody Diving has supplied the incorrect product.

7.2.Any warranty provided by Dermody Diving is wholly conditional upon:

7.2.1.The Customer carrying out all regular maintenance work to the relevant Australian Standard, and producing a report from a qualified engineer attesting to same;

7.2.2.The Customer carrying out all regular maintenance work in accordance with the Manufacturer’s recommendations;

7.2.3.The Customer pre-paying to Dermody Diving an amount which represents Dermody Diving’s assessment (at its sole discretion) of what should be allowed for fair wear and tear;

7.2.4.Neither the Customer nor any other party attempting to carry out repairs, mal-operate or modify the products in any way during the Warranty Period;

7.2.5.The defect or damage not being caused (directly or indirectly) by the Customer’s negligence, fault, neglect, abuse, incorrect use or as a result of vandalism, fire, water damage, power surge or other circumstance outside of Dermody Diving’s control;

7.2.6.The Customer inspecting all goods upon delivery and within five (5) business days of delivery, giving written notice to Dermody Diving if any of the Products are either damaged or not in accordance with the Customer’s order, with such notice to detail all aspects of the alleged non-conformity and/or damage; 

7.2.7.Products returned for credit shall be subject to a 18% or $80.00 per item (whichever is greater) restocking fee; and

7.2.8.The Customer pre-paying all freight charges for goods returned for credit.

7.3.Dermody Diving shall be under no obligation to take any steps for or on behalf of the Customer for the purpose of extending or preserving the liability of any contract or third party and may (according to the extent of liability) obtain services in relation to goods at the lowest possible cost.


8.Intellectual Property

8.1.Dermody Diving retains all rights, title and interest in any intellectual property including any design(s), documentation, diagrams or plans existing during the course of the work under this Agreement.  All intellectual property supplied by the Customer at the commencement of this Agreement remains the property of the Customer but the Customer grants Dermody Diving a perpetual irrevocable, royalty fee, non-exclusive license to use, reproduce and modify the Customer owned intellectual property.  The Customer agrees to indemnify Dermody Diving for any threatened or actual claim or intellectual property infringement arising out of Dermody Diving’s use of the Customer’s intellectual Property.

9.Liability

9.1.The liability of Dermody Diving for any of the matters referred to in clause 7.1 and this clause 9.1 shall be limited to the lesser of:

a.The minimum required by The Trade Practices Act (Cth) 1974;

b.$100.00 (one hundred dollars).

This limitation of liability applies:-

9.1.1.To any personal injury, or loss of, damage to, or delay in relation to any goods or in relation to any services provided under any circumstances whatsoever;

9.1.2.To any negligent or wrongful act or deliberate act or default on the part of contractors of Dermody Diving, its agents, servants or subcontractors;

9.1.3.To any mis-delivery, delay or non-delivery (whether any specific time for delivery has been agreed or not);

9.1.4.To any breach of contract or tortious duty;

9.1.5.To any consequential loss for whatever reason and under any circumstances;

9.1.6.To any loss of or damage to or deterioration in or contamination of goods while the goods are in the possession, custody or control of the Customer;

9.1.7.To any claim for delay or damage, to the amount of Dermody Diving charges to the company for or in relation to the goods;

9.1.8.For any failure or delay in performance hereunder due in whole or in part to strikes, work stoppages, fire, acts of terrorism, accidents, wars, rebellions, civil commotion, public strife, acts of any government, whether legal or otherwise, acts of public enemies, forces majeure, or qualified labour, or any other causes beyond the reasonable control of Dermody Diving;

9.1.9.For any delays or inabilities to obtain product because of the actions of a supplier to Dermody Diving.

9.2.In entering into this contract, The Customer does so not only on its behalf but as agent and trustee for all of its contractors, servants, sub-contractors and agents.

9.3.The Customer shall defend, indemnify and hold harmless Dermody Diving from and against all claims, costs and demands whatsoever and by whosoever made in relation to or arising out of the goods and services provided, in excess of the liability of Dermody Diving under the terms of these conditions and without prejudice to the generality of this clause, this indemnity shall cover all product failures, claims, costs and demands arising from or in connection with the negligence or wrongful or deliberate acts of Dermody Diving, its contractors, servants, sub–contractors and agents.


10.Title/Risk of Loss/Insurance

The risk or loss of goods shall pass from Dermody Diving to the Customer when the goods or component parts, whether manufactured by Dermody Diving or another supplier, are placed in the possession of the carrier for shipment to the Customer. The Customer shall provide all necessary insurance to be for no less than the total amount owing to Dermody Diving with loss first payable to Dermody Diving.

11.Payments

11.1.The Customer agrees to pay Dermody Diving the fees specified in this Agreement within set terms of the date of invoice without set-off, deduction or discount of any kind.  Unless otherwise agreed to by Dermody Diving in writing, all amounts payable hereunder shall be due to Dermody Diving within seven (7) days of the invoice date. Late payments shall incur interest at the rate of 1.75% per month on the largest amount owing during the month.

11.2.Dermody Diving reserves the right to issue progress invoices for materials and/or labour expended on work in progress and to place into bond materials which cannot be accepted for delivery on site and invoice the full value thereof.

11.3.Dermody Diving shall have the right to issue a notice of default, requesting the Customer to pay the amount of any fee within the time specified in the notice.  The Customer will be required to pay Dermody Diving the fees due upon receipt of this notice and pay all reasonable expenses, including legal costs incurred in the enforcement of the notice of default.

11.4.Payment of fees is a fundamental term of this Agreement and to the maximum extent permitted by law, Dermody Diving will have no liability to the Customer for acts or omissions or work required to be undertaken by Dermody Diving if the circumstance or event which would otherwise give rise to liability occurs at a time when the Customer is in breach of payment obligations to Dermody Diving.

11.5.The  Customer agrees that it must pay all outstanding invoices before commencing any legal process.

11.6.Dermody Diving shall have the right to adjust the Fees on an annual basis in respect of an increase/fall in the cost of any annual services.

11.7.The Customer shall pay all costs and expenses incurred by Dermody Diving on an indemnity basis in connection with Dermody Diving attempting to obtain payment of any outstanding amounts, including fees charged by a collection agency or Solicitor, whether or not formal proceedings are brought to remedy the Customer’s breach of this agreement or to collect any amount due.

11.8.The Customer agrees to deliver written notice of any error in any invoice or statement of account to Dermody Diving within three (3) days after the day that the invoice or statement of account is dated. The invoice or statement of account shall be deemed to be correct and accepted as rendered, unless Dermody Diving has received the Customer’s written notice to the contrary within the above time period. All sums owing to Dermody Diving by the Customer shall be paid in accordance with the terms and conditions expressed on any written quotation signed by Dermody Diving or on a Dermody Diving invoice.  Whether or not expressed in a quotation or invoice, all amounts not paid when due shall bear interest pursuant to clause 11.1.


12.Invoices

12.1.Once we post, fax or email an invoice or statement to you, then you agree that you have received it.

12.2.If you do not provide written notice to us of any objection or complaint within 7 days of this receipt, then you agree that:

12.2.1.the amount is owing, and

12.2.2.the amount on the statement is accurate;

12.2.3.the onus will be on the Customer to prove otherwise thereafter;

12.2.4.if you do wish to make any counterclaim, or set-off against us, then you agree and undertake to pay the amount claimed on all outstanding invoices owed to us in full, before:

12.2.4.1. you make any such claim; and

12.2.4.2.raise any dispute to a demand served pursuant to section 459E of the Corporations Act 2001.

13.Defaults

In the event of the Customer’s refusal to accept a shipment or other default, Dermody Diving, at its discretion and option shall be entitled to retain all monies paid by the Customer on accounts as liquidated damages. If the Customer fails to make any payments when due, or if there is a breach of any covenant or agreement by the Customer, or if Dermody Diving deems itself insecure, then the Customer shall be deemed in default and Dermody Diving shall have, at its option, the right to take immediate possession of the goods, and or declare all unpaid amounts immediately due and payable and or suspend shipments to the Customer. Dermody Diving shall be entitled to settle for any amount owed by the Customer or any of the Customer’s related entities against any amount payable to Dermody Diving in connection with any unpaid monies due to Dermody Diving. A waiver by Dermody Diving of any breach or default shall not constitute a waiver of any subsequent breach or default.

14.Acceptance

These terms and conditions shall be deemed binding on the Customer by its purchase of products from Dermody Diving.

15.Choice of Law

15.1.This contract shall be governed by the laws of Queensland. Dermody Diving and the Customer hereby agree:

15.1.1.to submit to the exclusive jurisdiction of the Courts of Queensland; and

15.1.2.that proceedings are to be filed and trialed in the Court registry at Brisbane (including the Magistrates Court, District Court, and Supreme Court) at the sole discretion of Dermody Diving.


16.Severability

16.1.If these terms and conditions shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:

16.1.1.that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or

16.1.2.if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.


17.Price

17.1.All quotations are exclusive of GST. GST will have the meaning of a tax, impost or duty on goods, services or other things introduced by a Government Authority either before, on, or after the quotation has been given.

17.2.All quotations are provided as an estimation only and should only be relied upon as a guide. The price provided for within the quotation will not include any incidental charges that may not have been made aware to Dermody Diving and or by a Dermody Diving supplier.


18.Guarantee

The person (the “Guarantor”) who undersigned the purchase docket on behalf of the Customer guarantees to Dermody Diving that he or she will do everything that the Customer is required to do under these Trading Terms. The Guarantor will separately continually indemnify Dermody Diving against any loss and damage that Dermody Diving suffers because the Customer fails to comply with the Trading Terms. The Guarantor is jointly or severally liable to perform the terms contained herein with the Customer. Dermody Diving is entitled to enforce these Trading Terms against the Guarantor solely due to the Customer’s breach of any terms herein.

19.Charging Clause

    19.1The Customer, Directors of the Customer and Guarantors jointly and severally provide    irrevocable guarantees that the Customer will fully satisfy its obligations pursuant to this Agreement.

    19.2That the said Customer, Directors and Guarantors provide equitable security over any and all real property in their possession either now or any time in the future including (but not limited to) any property, undertaking or rights held as trustee.

    19.3The Customer, Directors of the Customer and Guarantors provide a caveatable interest over any real property held by said persons or parties (including by way of joint tenancy) either now or in the future as security for any monies owing under this agreement plus all of Dermody Diving’s indemnity legal costs.


20.Enduring Power of Attorney

20.1.The Customer irrevocably appoints Dermody Diving and each and every one of Dermody Diving’s directors to be the true and lawful attorney of the Customer to act at any time after the Customer breaches any terms herein. The attorney is empowered (but not limited):

20.1.1.to do all things which the Customer is required to do under these Trading Terms; and

20.1.2.to execute and register (if necessary) any document to effect a bill of sale or mortgage, over the Customer’s assets or properties for the amount of debt owing.

21.2The Customer acknowledges and agrees that whilst there is any alleged monies owing to Dermody Diving, Dermody Diving may register a caveat over any real property held by the Customer until the monies are paid, or until the Court so orders.

21.Force Majeure

21.1.Dermody Diving will not be in breach of this Agreement or liable to a party if it fails to perform or delays in performance of any obligation as a result of an event beyond its reasonable control.  Including but not limited to strikes, industrial disputes, fire, flood, acts of god, war, vandalism, sabotage, riot, national emergency, embargoes or restraints, extreme weather or traffic conditions, temporary closure of roads, legislation, order or other act of government.


22.Termination

22.1.Dermody Diving may terminate this Agreement if:

22.1.1.The Customer commits any breach of its obligations under this Agreement;

22.1.2.The Customer becomes insolvent, bankrupt or enters into a scheme or arrangement with creditors; or

22.1.3.By providing seven (7) days prior written notice.

22.2.Termination can be effected by Dermody Diving verbally, by email, or by written notice to the Customer.


23.Effect of Termination or Cancellation

23.1.In the event that the Customer wishes to terminate this Agreement (or cancel any order, contract or agreement whether it has commenced or not) prior to the expiry of the Term then:

23.1.1.the Customer will be required to pay all remaining payments which will be due up to the end of the contract term or order; plus

23.1.2.a sum equivalent to all Dermody Diving’s costs, fees and expenses incurred up to the date of such purported cancellation including variations, damages payable to Dermody Diving’s sub-contractors or suppliers together with a reasonable proportion of Dermody Diving’s loss of anticipated profits.

23.2.Dermody Diving may terminate this Agreement in whole or in part at its convenience upon the provision of 14 days notice in writing to the Customer.


24.Site Induction

24.1.In the event that Dermody Diving (or its employees) elects or is required (by the Customer or other) to undergo a site induction, including but not limited to orientations, jobsite safety training, or similar (“the Site Induction”) the Customer will advise Dermody Diving of the date, duration, and all other relevant information pertaining to the Site Induction within fourteen (14) days of Dermody Diving’s scheduled work commencement date.

24.2.If the Customer fails to provide adequate notice and information required by 24.1 above, the Customer agrees to pay Dermody Diving its hourly or daily rate, whichever is greatest, for time spent (and time lost) as a result of the Site Induction.


25.General

25.1.Dermody Diving may perform any of its obligations through sub-contractors.

25.2.Dermody Diving may assign its rights and obligations under these terms and conditions.

25.3.If the Customer changes its corporate status, both Customer and its successors continue to be bound by these terms and conditions of sale, but Dermody Diving reserves its rights pursuant to clause 23.

25.4.No prior representation, affirmation, or agreement shall be enforceable unless set forth herein. 

25.5.If the Customer sells part or all of its business to another entity, and that other entity purchases any goods from Dermody Diving, then that purchase shall confirm that the new entity has agreed to be bound by the same Terms and Conditions set out herein.







CODE OF PRACTICE


As a commercial diving operation, Dermody Diving and Marine Services has agreed to operate within the Principles and Standards of the Australian Commercial Diving Industry.  This includes a commitment to a high standard of service and professionalism.


Legislative Requirements


Dermody Diving and Marine Services will meet all legislative requirements of State and Federal Government.  In particular, Workplace Health and Safety requirements.



Access and Equity


All persons will be treated in an ethical and responsible manner and consistent with the requirements of the anti discrimination policies.  Our Access and Equity Policy.


ensures that each person is treated to comply with equal opportunity legislation.  Appropriately qualified staff will supervise each task and make judgments based on their qualifications and experience.



Quality Management Focus


Dermody Diving and Marine Services has a commitment to providing a quality service and a focus on continuous improvement.  We value feedback from clients and staff for incorporation into future programs.



Client Service


We have sound management practices to ensure effective client service.  In particular we have client service standards to ensure timely operation of tasks and projects.  Our pre tasking coordination and liaison with clients will ensure all fees; charges and safety procedures are explained.



Management and Administration


Dermody Diving and Marine Services has policies and management strategies, which ensure sound financial and administrative practices.  Management guarantees the organisation's sound financial position.



Marketing and Advertising


Dermody Diving and Marine Services provide our  services with integrity, accuracy and professionalism, avoiding vague and ambiguous statements. In the provision of information, no false or misleading comparisons are drawn with any other organisation or services.