tERMS AND CONDITIONS
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About Us...
TERMS AND CONDITIONS - Motion marine
Effective Date: 23/11/2023
1. Definitions in these Terms and Condition
1.1 "Motion Marine," "Us," "We," "Company," and "Our" also encompass any authorized employees, affiliates, agents, or other representatives of DR RA COOK PTY LTD (ABN 83 664 486 597).1.2 "Customer," "Owner," "You," or "Your" refers to the purchaser of goods or labour from the Company, including companies, bodies corporate, unincorporated bodies, or other entities.1.3 "Quote" or "Enquiry" signifies a quote provided by Us to You for any Services.1.4 "Work" or "Services" entails any or all work and services agreed to be supplied by Motion Marine, as outlined in Quotes.1.5 "Goods" or "Items" covers any goods, products, services, and/or materials agreed to be supplied by Motion Marine, as outlined on Quotes, Invoices, and any other agreed form provided by Motion Marine.1.6 "Sub Contractor" denotes any person contracted by Us to provide Services to You.1.7 "Intellectual Property" includes, but is not limited to, reports, designs, checklists, the contents, layout, design, colours, appearance, graphics, and imagery of the Website, as well as all copyrights, trademarks, trade secrets, patents, and other internal processes.1.8 "Force Majeure" refers to any event outside of Our control, impacting Our ability to provide Services to You, including acts of terrorism, acts of war, acts of God, tempest, heavy rain, equipment issues, pandemics, strikes, and such other events reasonably determined by Us as being outside of Our control.1.9 "Reports" or "Pre/Service Inspection" signifies any report or inspection issued by Us to You as a recommendation based on observations at the time and date of Inspection.1.10 "Demand Costs" refers to the legal costs incurred by Us to issue a letter of demand to You if your Invoice remains unpaid for a period of 28 days from the due date and any further legal costs.1.11 "Terms and Conditions" denotes the Terms and Conditions of this agreement.1.12 "Price" or "Cost" encompasses any costs (fixed Price or the amount agreed between Us) associated with these Terms and Conditions and Your use of Our Goods and Services.1.13 “Vessel” or “Boat” refers to the whole watercraft, (engine, propellers, accessories etc.) any shape or size. 2. Acceptance2.1 Any instructions received by Motion Marine for the provision of Services and/or acceptance of goods supplied by Motion Marine including Visual Mechanical Inspection Reports and sea trials shall constitute acceptance of the terms and conditions contained herein.2.2 You will be deemed to have accepted the Terms and Conditions of this agreement if You request or accept a Quote from Us or if You communicate with Us in any other way in relation to any Services after you have been prompted to read a copy of these Terms and Conditions.2.3 The Customer must approve and accept a Quote in writing by signing their acceptance. Verbal acceptance will be taken at Company discretion.2.4 The Customer is responsible for viewing the Company’s Terms and Conditions, which can be located on Motion Marine's website or available upon request as stated on Our Quotes and Invoices.2.5 Upon your acceptance of these Terms and Conditions, the Terms and Conditions are binding and can only be amended with the written consent of Motion Marine.3. Price and Payment3.1 Prices on Quotes are based on rates and costs as of the date of the Quote and are valid for a period of thirty (30) days.3.2 Accepting Your Quote provided by Us deems that you accept the Price and commit to paying Us for our Services upon completion.3.3 Should any additional Services be required, We will contact you to explain the situation and send a Quote for the Price of the additional extras. No additional work will be performed without written authorization/acceptance. Verbal acceptance will be taken at Company discretion.3.4 All invoices must be paid by the Customer in AUD and must be strictly made in accordance with the due dates provided on the Invoice by the Company.3.5 Prices on Quotes will include travel to and from the vessel worksite, at the current hourly rate for labour, plus GST.3.6 Where the Goods or Vessel are not collected within forty-eight (48) hours of advice to the Customer that they are ready for collection, then Motion Marine (at its sole discretion) may charge a reasonable fee for storage.3.7 All Goods remain the property of Motion Marine until payment is made in full.3.8 If You wish to pay an invoice via Credit Card, a 1.5% card surcharge will be applied to any payment made by You, and these fees may vary from time to time.3.9 Under certain circumstances and at Our sole discretion, a non-refundable deposit and/or an administration fee may be required.3.10 Upon full payment of the Invoice, ownership of the Report will vest in You (or the Third Party Customer if applicable). Unless and until the Invoice has been paid in full, We retain ownership of the Report/Pre/Service Inspection and reserve Our rights to take action as We see fit to enforce Our rights.4. Default and Consequences of Default4.1 If the Customer does not pay the Company for the Services on or before the due date and payment remains outstanding within fourteen (14) days, the Company may suspend the supply of further Services (if any) until the Customer has paid the outstanding amounts.4.2 We reserve Our right to charge You interest on any accounts in arrears for more than 28 days at a rate of 15% per annum. The Invoice(s) must be paid in full to stop accruing interest and the provision of any further Products, Services, or Reports to You. In these circumstances, as title to the Goods does not pass to You until We have been paid, We may repossess and sell the goods and apply the proceeds of the sale towards repayment of the money owed under the agreement.4.3 If the Customer owes the Company any money, the Customer will be responsible for all costs and disbursements incurred by the Company in the recovery of any overdue amount in accordance with these Terms and Conditions. This includes but is not limited to internal administration fees, legal costs on a solicitor and own client basis, debt collection fees, and bank dishonour fees.4.4 You will be in default if You do not pay Us when money is due for payment or fail to comply with any other obligation under Our business arrangements.4.5 In the event of payment default, You grant Us or any person authorized by Us, with reasonable notice, the irrevocable right to enter Your premises or the premises where the goods, believed to be held on Your behalf, are located. Additionally, You agree to indemnify and absolve Us from all reasonable costs and expenses incurred in the recovery of the Goods and any losses associated with their resale.4.6 You consent to signing documents or undertaking any necessary actions to validate Our rights under the agreement. Furthermore, You appoint Us as Your attorney to sign any document or carry out any actions reasonably required to enforce Our rights in the event of a default.5. Passing of Risk and Title5.1 The risk associated with any Goods sold to You transfers upon Your acceptance of the Goods. However, ownership of the Goods will not transfer until full payment for the Goods and any other outstanding amounts owed to Motion Marine have been received.5.2 Motion Marine retains the right, at any time when there are overdue debts or outstanding payments, to inform You of its intention to repossess the goods. Motion Marine may enter Your property with the necessary equipment to reclaim possession of the Goods.5.3 To safeguard Our security interest in the Goods until payment, We may opt to register the agreement between Us under the Personal Properties Securities Act 2009 (Cth). You agree to undertake all necessary actions to facilitate this registration.5.4 The risk of loss of or damage to the Goods shall be on the Customer.5.5 Where the Customer expressly requests Motion Marine to leave Goods outside Our premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer's sole risk, and it shall be the Customer's responsibility to ensure the Goods are insured adequately or at all.5.6 We shall not be liable for the loss of or damage to the vessel, its accessories, or contents while it is being stored, transported, or operated in connection with the work authorized unless caused by the negligence of Us or Our employees.5.7 It is Your responsibility to ensure that Your vessel is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on Motion Marine's premises. The vessel is at all times stored and repaired at Your sole risk.5.8 Motion Marine shall not be liable to the Customer for delays in manufacturing, late delivery, or short delivery of the Goods or in the supply of the Services.5.9 The Customer is responsible for providing accurate information about the Vessel and its condition to Motion Marine before any Services, Inspections and Sea Trials.5.10 Motion Marine is not responsible for issues arising during the Sea Trial, and You acknowledge and inherent the risks associated with Vessel operation.6. Liabilities6.1 Motion Marine holds no liability to the Customer unless any demonstrable loss or damage results from the deliberate intent or recklessness of Our employees, with knowledge that such consequences would arise. We are not liable for any consequential losses incurred by the Customer, including but not limited to the loss of profit or the Customer's liability to any third party. In any case, Motion Marine's liability shall not exceed the lesser of 10% of the Price.6.2 Motion Marine holds no liability for issues that may arise after the Inspection or for defects not reasonably identifiable through visual means or Sea trial.6.3 Motion Marine is not liable for incomplete Inspections or Sea Trials due to inaccurate information provided by the Customer.6.4 To the fullest extent allowed by law, Motion Marine's liability for a breach of any implied or imposed guarantee, warranty, or condition that cannot be excluded is limited, at Motion Marine’s discretion, to:In the case of supplied or offered Services by Motion Marine, either: (a) the payment of the cost of having those Services re-supplied; or (b) the re-supply of those services;In the case of supplied or offered Goods by Motion Marine, either: (c) the payment of the cost of having the Goods replaced; or (d) the payment of the cost of having the Goods repaired. (e) the replacement of the Goods or the supply of equivalent goods; (f) the repair of the Goods;6.5 To the fullest extent allowed by law, Motion Marine will not be held liable to You or any third parties for:(a) damage, injury, or death to any person or property, arising out of or related to the Goods sold by Us or the Services provided by Us(b) any loss, including loss of profits or special, indirect, incidental, or consequential loss; or(c) any claim, whether arising in contract, tort (including negligence), or statute;6.6 For any delays arising from third-party installers, utility issues, or reasons beyond Our control (such as force majeure), You agree and acknowledge that We will not be held liable for any associated costs or delays in the delivery of products or Services as outlined in this Agreement.6.7 Our Reports are based on conditions and observations at the time of the Inspection and Sea Trial, and Motion Marine is not liable for any indirect, consequential, or incidental damages arising from the Reports or sea trial.6.8 Inspection Services include visual observations at the time of Inspection and a Sea Trial, if applicable. Services covered in the Inspection will be noted on the Quote. We cannot be held liable for any mechanical failures after We have provided our Inspection Services.6.9 Motion Marine holds no liability for any decisions, actions, or consequences arising from the Customer's reliance solely on the reports.7. Lien and Uncollected Goods7.1 As long as You have outstanding debts to Us under this or any other agreement, We retain a lien over Your Boat, engine, motor, its accessories, contents, and/or components that are in the possession of Motion Marine.7.2 If Motion Marine enforces a lien over Your boat, motor, engine, or boat components, or if You fail to collect them within two (2) days from the time they are ready for collection, we reserve the right to impose a reasonable daily storage fee.7.3 If the lien has not been discharged, and You have not collected Your boat, engine, motor, its accessories, contents, and/or components within three (3) months of Us notifying You that Your vessel is ready for collection, and if Motion Marine has been unable to contact You despite reasonable efforts, We reserve the right to sell or dispose of Your boat, engine, motor, its accessories, contents, and/or components by any reasonable method and at Your expense, without further notice to You.7.4 We assume no liability for any loss or damage You may experience due to Our sale or disposal of Your boat, engine, motor, its accessories, contents, and/or components under this section, including any loss of accessories or contents associated with the boat, motor, or engine.7.5 The funds resulting from the sale or disposal of Your boat, engine, motor, its accessories, contents, and/or components within will be allocated by Motion Marine to settle any outstanding amounts owed to Us. If the proceeds from the sale or disposal of Your Vessel or its components are:(a) not surpassing the amount You owe to Us, the shortfall will remain as a debt owed by You to Us; or(b) exceeding the amount You owe to Us, the surplus (minus any incurred costs by Us related to the sale or disposal) will be reimbursed to You. If we are unable to make the payment, the surplus will be retained by Us for a period of four (4) months from the date of sale or disposal, after which it will be forfeited to Motion Marine.8. Goods and Services8.1. To the maximum extent allowed by law, any warranties, conditions, or terms pertaining to the quantity, description, fitness for purpose, quality, or condition of the Goods or Services, whether explicitly stated or implied by statute, common law, or any other means, are excluded.8.2. Goods delivered to the Customer, which are in accordance with the Contract, will only be accepted for return with the prior written approval of the Seller, on terms to be determined at the absolute discretion of the Seller.8.3. In the event of the Customer cancelling the ordered Goods or Services, any deposit or advance payment made shall be forfeited, Motion Marine additionally retains the right to seek provable damages. We may also impose cancellation fees amounting to 20% of the total value of the order.8.4 You acknowledge that Goods and Services supplied may exhibit variations in shade, colour, surface, and finish and may fade or change colour over time. You also acknowledge that Goods and Services will weather and deteriorate as part of a natural process of wear and tear. The process of wear and tear occurs at different rates depending on the environment of each vessel/part and the amount of use. The Company is not liable whatsoever for wear and tear that is considered normal having regard to the environment and reasonable use.8.5. Unless otherwise agreed, the Customer is responsible for arranging insurance for the Goods.8.6. Our price list is subject to variation, and the amount payable aligns with prevailing prices on the Invoice date or in accordance with a current Quote.8.7. For Goods not manufactured by us, the warranty is that provided by the manufacturer, and We are not obligated or responsible for any other terms or conditions.8.8 Our Reports aim to identify visible issues or concerns with the Vessel's mechanical components and performance during the Inspection and Sea Trial.8.9 You acknowledge that Our Reports are not exhaustive and should not be the sole basis for decision-making.8.10 Sea Trials are subject to weather and sea conditions. Motion Marine reserves the right to postpone or reschedule sea trials for safety reasons.9. Disputes and Limitations9.1. Upon completion of receiving our Services, it is the Customer's responsibility to inspect all Goods and Services, and any disputes must be raised within seven (7) days from the invoice date.9.2. We will take reasonable steps to rectify faults in accordance with this Agreement and relevant Australian Consumer Law.9.3. To the fullest extent allowed by law, any liability and responsibility of Ours to You or any other party under this Agreement or for Your use of the Services are excluded, except for cases arising from Our breach of this Agreement or negligent acts.9.4. We warrant compliance with all Australian Consumer Laws and do not guarantee uninterrupted or error-free Services.9.5 Any disputes arising from Our Reports, Sea Trials, or these Terms and Conditions shall be resolved through negotiation and, if necessary, mediation.10. Vessel10.1. You agree to grant Us safe and unrestricted access to the Boat for Inspection or completing Services.10.2. If you are not the Owner, You agree to obtain the Owner's consent for Us to supply Services within the Boat.10.3. You are accountable for ensuring the Boat is safe and free of obstacles.10.4. We may test drive/sea trial the Boat at Our discretion and are not liable for damage unless caused by Our staff's negligence or wilful misconduct.10.5. We will make best efforts to deliver Services and Reports within specified time frames, assuming no responsibility for delays due to Your breach or events of Force Majeure.11. General11.1. If any provision of these terms is deemed invalid, the validity of the remaining provisions shall not be affected.11.2. To the maximum extent permitted by law, our liability is excluded, except for cases arising from Our breach of this Agreement or negligent acts.11.3. Motion Marine's failure to enforce any provision shall not be considered a waiver and shall not impact Our right to subsequently enforce that provision.11.4 Motion Marine reserves the right to amend these Terms and Conditions. You will be notified of any changes, and continued engagement implies acceptance of the revised terms.11.5 Any recommendations in Our Reports are suggestions based on observations at the time of Inspection.11.6 Reports are inspected visually and all things identified in the reports are Reported to the best of Our ability at the time of Inspection.