Terms of Service (“Terms”)

These Terms and Conditions (“Terms”) are an agreement between the Company as Kingfisher Cruisers Pty Ltd (ABN:90101651076), its successors and assigns (referred to as “we,” “us,” or “our”) and the Customer named in the proposal (referred to as “you,” “your,” or “the Customer”). Together, we are referred to as “the Parties.” By continuing to access or use our services,you confirm that you have read, understood, and agree to these terms.

Definitions

For the purposes of these Terms and Conditions, the following words and expressions shall carry the meanings ascribed to them below. These definitions apply uniformly, regardless of whether they are used in singular or plural form, or whether they appear in the main body of this agreement or any related documents.

Agreement – The entire contract between the Customer and the Company, including all terms, conditions, and documents such as the Proposal and Scope of Works (SOW).

Completion Date or Handover – The agreed-upon date by which the services or deliverables must be completed, as specified in the SOW.

Company – Refers to Kingfisher Cruisers Pty Ltd, including its directors, employees, agents, subsidiaries, affiliates, and authorised subcontractors acting on its behalf.

Customer – The individual, business, or entity that engages the Company for services specified in the Scope of Works, referred to as “the Customer” “you” or “your.”

Fees – The monetary amounts the Customer is required to pay the Company for services rendered, as specified in the Agreement and the SOW.

Force Majeure –Any event or circumstances beyond the reasonable control of either party, such as natural disasters or unforeseen events, which prevent the fulfilment of contractual obligations.

Liability – The legal responsibility for any loss, damages, or claims arising from breaches of the Agreement or issues related to the services provided.

Scope of Works (SOW) – The document that outlines the specific services, deliverables, timelines, fees, and other relevant details of the services being provided by the Company to the Customer.

Warranty – The Company’s assurance that the services provided will meet agreed-upon standards and that any defects or failures will be rectified under specified conditions.

1. Application, Authorisation and Customer Responsibilities

1.1 These Terms and Conditions govern all transactions between the Company and the Customer for custom vessel solutions, refit, and repairs.

1.2 Any change to these Terms must be approved in writing by a director or Operations Manager.

1.3 The Customer acknowledges acceptance of these Terms and Conditions either by providing written or verbal instructions, signing the agreed Scope of Works or payment of the first invoice.

1.4 Use of services is to be read in conjunction with the Company’s Privacy Policy which can be viewed on our website at any time.

1.5 If accepting this Agreement on behalf of a company or entity, the individual warrants they have the legal authority to bind the Customer and its Affiliates to these Terms.

1.6 The Customer agrees to meet all of their obligations as specified in these terms and conditions and agrees to act in good faith and collaboration with the Company.

2. Ownership, Insurance & Vessel Registration

2.1 The Customer warrants they are the vessel owner or authorised agent with the authority to request Works as per the Scope of Works.

2.2 The Customer warrants that the vessel provided to the Company is owned by them and is fully insured and registered as required by law.

2.3 If requested, the Customer will provide the Company with a Certificate of Currency for the vessel or other insurance and/or vessel registration.

2.4 The Customer is responsible for ensuring the vessel is insured against all risks, including but not limited to accident, fire, theft, and burglary, while stored on the Company’s premises. All storage and repairs are at the Customer’s sole risk.

3. Provision of Services and Deliverables

3.1 The Company agrees to provide the Services to the Customer in good faith, ensuring:

1. Use of reasonable skill and care;
2. Adherence to agreed timeframes (if any);
3. Currently accepted Australian industry standards, principles and practices relevant to the Services;
4. The reasonable instructions of the Customer.

3.2 Without reference to, or approval by, the Customer, the Company is entitled to subcontract on any terms the whole or part of the Scope of Works.

4. Scope of Works (SOW)

4.1 The Scope of Works is a separate document outlining the details and characteristics of the services provided.

4.2 The Customer must provide written approval to proceed with the estimated Scope of Works.

4.3 The Company will deliver the agreed services as specified in the Scope of Works, subject to the Customer’s payment of all applicable fees.

5. Variations and Change Requests

5.1 The Customer may request changes or additions to the Services by submitting a written change request.

5.2 The Company will inform the Customer of any additional cost, timeline, or Scope of Works changes.

5.3 The Customer has 24 hours to confirm their agreement to proceed with the Change Request or any changes to the Scope of Works. Acceptance must be provided in writing and submitted to the Company. Failure to provide timely confirmation may result in additional fees and/or costs due to potential delays.

5.4 All communications under this clause 5 may be issued by email.

6. Payments Terms, Expenses, Lien and Unpaid Goods

6.1 The Company’s standard rates apply to all works unless specified.

6.2 The Customer agrees to reimburse the Company for any reasonable expenses incurred during service execution beyond those specified in the Scope of Works.

6.3 The Customer agrees to pay the Company in accordance with the following terms:

6.4 The Customer may not withhold or offset any payments due to the Company unless required by law or expressly agreed in writing by both parties.

6.5 The Company may suspend services after providing written notice of non-payment until all overdue amounts, including interest, are paid in full.

6.6 Late payments will incur interest at 1.5% per month (prorated for partial periods) or the maximum rate permitted by law, whichever is lower.

6.7 If payment remains outstanding 30 days after a default notice, the Company may pursue collection or legal action, with the Customer responsible for all associated costs, including legal and administrative fees.

6.8 Marina services will be scheduled as part of the company’s service provisions. Customers will not be allowed to schedule independent bookings. Failure to comply with these terms may result in the cancellation of the booking at the company’s discretion.

6.9 All vessels, items, and goods shall remain in the possession of the Company until full payment of the final invoice is received. Unpaid amounts may accrue interest, marina and storage fees.

6.10 If a vessel, item(s) or goods remains in the Company’s possession for more than six (6) months without full payment or reasonable communication from the owner, the Company may deem the Goods abandoned. The Company shall make reasonable efforts to contact the owner using the last known contact details. If no response is received within thirty (30) days of notice, the Company may, at its discretion:

1. Retain the Goods as security for unpaid amounts; or
2. Sell or otherwise dispose of the Goods to recover outstanding debts, including storage, repair, and administrative costs with any remaining balance (if applicable) to be returned to the owner, provided they can be reasonably located.

6.11 The owner indemnifies the Company against any claims arising from the retention, sale, or disposal of the Goods in accordance with applicable laws.

7. Delay and Cost Implications

7.1 Unless expressly agreed otherwise in writing, where specific timing applies for performance of Scope of Works or supply of Deliverables, that timing is extended if:

1. A delay caused by the Customer impacts the Company’s ability to perform the Services or supply the Deliverables; and
2. The Company notifies the Customer of the delay or potential delay as soon as it becomes apparent and provides updated timing details, along with reasonable supporting evidence if requested.|
3. A change in the Customer’s personnel involved in the Contract results in delays for the Company in fulfilling its obligations. In such cases, the Company may adjust the timing for the supply of Services and Deliverables upon notice to the Customer.

7.2 If a delay caused by the Customer results in additional costs or expenses for the Company, the Company shall be entitled to recover such reasonable costs and expenses, provided they are directly attributable to the delay and have been communicated to the Customer in writing, along with supporting documentation.

7.3 The Customer agrees to pay any additional costs or expenses resulting from delays, as outlined above, within seven (7) days of receiving the Company’s invoice, which shall include reasonable evidence of the expenses incurred.

7.4 Both the Company and the Customer must take reasonable steps to reduce or prevent delays:

1. The Company will make all reasonable efforts to minimise delays in performing Services or supplying Deliverables, including taking appropriate actions to mitigate their impact.
2. The Customer must cooperate fully to ensure timely performance, including providing prompt responses, approvals, and any necessary information or resources.

8. Force Majeure

8.1 Neither party will be liable for any failure or delay in performing its obligations under this Agreement due to events beyond its reasonable control, known as “Force Majeure Events.”

8.2 In the event of a Force Majeure Event, the affected party shall:

1. Notify the other party in writing as soon as possible, providing details of the event, its nature, anticipated impact, and expected duration;
2. Take reasonable steps to mitigate the effect of the Force Majeure Event;
3. Resume performance of its obligations as soon as reasonably possible after the event ends.

8.3 If the Force Majeure Event lasts for more than thirty (30) days, either party may terminate the
Agreement by providing written notice, without liability for such termination.

9. Warranties, Defects, and Disclaimers

9.1 The Company warrants that all services and deliverables in the Scope of Works will be performed in a professional and workmanlike manner, consistent with generally accepted Australian industry standards of quality and is fit for purpose.

9.2 The Customer agrees that any claim related to the Services provided under these terms must be brought to the Company’s attention within the warranty period of 90 days after handover.

9.3 Any claims made after this period shall not be considered valid, and the Company will have no further liability regarding the Services provided.

9.4 The Customer must submit any warranty claim in writing to the Director or Operations Manager within the warranty period. Failure to do so will release the Company from any further liability related to the Services and warranty obligation.

9.5 The Customer may submit only one warranty claim per specific item, issue, or defect. Any subsequent claims related to the same defect, repair, or issue will be deemed invalid, and the Company will be released from warranty obligations to the extent permitted by law.

9.6 In the event of a valid warranty claim, the Company’s sole obligation is to rectify the defect by re-performing the affected work within a reasonable timeframe, subject to the availability of suppliers and affiliates.

9.7 If re-performance is not feasible, the Company may, at its discretion, provide a refund for the defective portion of the work only. The Customer remains responsible for all labour and associated costs incurred, including those from the original Scope of Works and any defect-related works.

9.8 This warranty applies only to the services explicitly outlined in the Scope of Works and does not cover pre-existing conditions, unrelated issues, or third-party modifications.

9.9 The warranty will be deemed void if the Customer or any third party alters, modifies, or interferes with the services without the Company’s prior written consent.

9.10 The Company’s liability is strictly limited to rectifying or refunding the defective work, as per this Agreement’s terms.

9.11 To the fullest extent permitted by law, this warranty is exclusive, and both parties disclaim all other express or implied
warranties, including merchantability and fitness for a particular purpose.

9.12 The Company is not liable for loss or damage to the vessel, its accessories, or contents during storage, transport, or work, except when directly caused by the Company or its employees’ negligence.

10. Indemnification

10.1 The Customer shall indemnify, defend, and hold harmless the Company, its directors, officers, employees, agents, and affiliates from all claims, liabilities, damages, losses, and costs (including reasonable legal fees) arising from or related to the Scope of Works, including but not limited to:

• Any breach of this Agreement by the Customer, including failure to meet payment obligations, misuse of the Company’s services or deliverables, or violation of applicable laws or regulations.
• Any third-party claims arising from the Customer’s use of the services or deliverables, except where such claims result directly from the Company’s gross negligence, wilful misconduct, or material breach of this Agreement.
• Any bodily injury, property damage, or financial loss caused by the Customer, its employees, agents, contractors, or subcontractors in connection with the use, implementation, or reliance on the Company’s services or deliverables.

10.2 The Company shall promptly notify the Customer in writing of any claim subject to indemnification under this clause. The Customer shall assume full control of the defence and settlement of such claims at its own expense, provided that:

1. The Company retains the right to participate in the defence, at its own cost, using counsel of its choice.
2. The Customer shall not settle any claim without the Company’s prior written consent if the settlement:
   
   1. Imposes any obligation or liability on the Company,
   2. Admits fault or wrongdoing on behalf of the Company, or
   3. Otherwise affects the Company’s rights or operations.

10.3 The total indemnification liability under this clause shall not exceed the total fees paid by the Customer under this Agreement or Scope of Works in the preceding 12 months, except for claims resulting from the Customer’s gross negligence, wilful misconduct, or breach of confidentiality obligations.

10.4 This indemnification obligation shall survive the termination or expiration of this Agreement for five (5) years from the termination date.

11. Limitation of Liability

11.1 The Company’s liability is limited as permitted by law. Except as stated in this Agreement, the Company makes no warranties regarding the Services and is not liable for any loss or damage arising from their use. This does not affect the Customer’s rights under the Australian Consumer Law or any other applicable law

11.2 To the fullest extent permitted by law, the Company excludes all warranties, conditions, terms, and representations (whether express, implied, statutory, or otherwise) relating to the Services, any products or services provided, and this Agreement, except as expressly stated.

11.3 The Company shall not be liable to the Customer, whether in contract, tort (including negligence), equity, under statute, or otherwise, for any:

1. Loss of profit, revenue, business, anticipated savings, goodwill, reputation, or business opportunities, whether such losses are direct or indirect;
2. Indirect, consequential, special, punitive, or incidental loss or damage, howsoever arising;
3. Personal injury or property damage sustained by the Customer or its Representatives, including loss, damage, or theft of any property, regardless of cause (including negligence);
4. Loss, damage, delay, or expense arising from any event beyond the Company’s reasonable control, including but not limited to any and all force majeure events.

11.4 To the extent liability cannot be excluded by law, the Company’s total cumulative liability (whether in contract, tort, negligence, equity, or otherwise) shall not exceed the total fees paid by the Customer for the Services under this Agreement in the 12 months preceding the event giving rise to the claim.

11.5 The Customer acknowledges and agrees that, to the maximum extent permitted by law, the Company shall not be liable for any consequential, incidental, special, punitive, or indirect damages, including but not limited to:

1. Loss of profits, revenue, anticipated savings, goodwill, reputation, data, or business opportunities, whether foreseeable or not;
2. Any such losses even if the Company was advised of the possibility of such damages.

11.6 The limitations of liability apply regardless of the cause of action, including contract, tort (negligence), equity, misrepresentation, strict liability, or otherwise

11.7 The Company has no liability for deficiencies in Scope of Works, Services or Deliverables provided to the Customer that result from the acts or omissions of the Customer, or which result from provision of the Scope of Works, Services or Deliverables in accordance with Customer’s instructions.

12. Resolution of Disputes

12.1 In the event of any dispute, controversy, or claim arising from or related to this Agreement (including its formation, interpretation, validity, breach, or termination), the parties agree to attempt resolution in good faith through direct negotiations, with a commitment to communication and no delays.

12.2 If the dispute is not resolved within 30 days of one party providing written notice to the other, the parties shall proceed to mediation with each party bearing its own legal and other associated costs.

13. Termination

13.1 This Agreement commences on the Effective Date and remains in effect until the Scope of Works is completed or terminated in accordance with this Clause 13.

13.2. Either party may terminate this Agreement and/or any active Scope of Works with immediate effect for cause by providing written notice to the other party if:

1. The other party commits a material breach of this Agreement and fails to remedy the breach within 30 days of receiving written notice specifying the breach and required remedy; or
2. The other party becomes the subject of a bankruptcy petition, insolvency proceedings, receivership, liquidation, or enters into an assignment for the benefit of creditors.

13.3 If this Agreement is terminated for cause due to the Customer’s breach, the Customer remains responsible for:

1. All amounts due and payable under this Agreement as of the termination date; and
2. Any costs, expenses, or losses reasonably incurred by the Company as a result of the early termination.
3. Invoices for outstanding amounts shall be issued within 7 days of termination and must be paid by the Customer within the agreed payment terms.

13.4 Either party may terminate this Agreement and/or any active Scope of Works without cause by providing the other party with 60 days’ written notice.

13.5 In the event of termination without cause, the Customer shall remain liable for:

1. All outstanding fees for services performed up to and including the termination date; and
2. Any additional fees due under the payment terms of this Agreement.
3. Invoices for outstanding amounts shall be issued within 7 days of termination and must be paid by the Customer within the agreed payment terms.