Terms and Conditions
1. CONTRACT TO USE AND OCCUPY THE LICENSOR’S CRAFT STORAGE FACILITY
- The Licensor grants to the Licensee a personal non-exclusive and non-transferable right to occupy and provide reasonable access to the Craft Storage Facility under the terms of this Contract.
- The Licensor may amend the terms of this Contract from time to time by providing the Licensee with notice of the amendment or by publishing the updated terms on the Licensor’s website. The amendment will take effect 30 days from the earlier of the date on which the Licensee is notified of the amendment or the date on which the Licensor publishes the updated terms on its website.
2. OBLIGATIONS OF THE LICENSEE
The Licensee agrees that:
- During the Contract term, the Licensor may store the Craft at a place within the Craft Storage Facility which in the Licensor’s reasonable opinion can safely store the Craft;
- The Licensor may move the craft within the Craft Storage Facility where it is necessary to do so for safety reasons or to ensure the efficient operation of the Craft Storage Facility;
- It shall at its own expense operate, maintain and store the Craft and its equipment in good and proper working order. Equipment includes, but is not limited to, ropes, lines, chains and tackle of, on or attached to the Craft (which ropes, lines, chains and tackle shall remain the property of the Licensee);
- The Licensor may, but is under no obligation to, replace the Licensee’s equipment at the cost of the Licensee where, in the reasonable opinion of the Licensor, the Licensee has failed to comply with its obligations under clause 2c or any equipment used by the Licensee to secure the Craft is likely to fail;
- It shall be responsible for all damage to the Licensor’s property, or to persons or craft using the Licensor’s property, arising from any act, omission, neglect or default by the Licensee or its employees, agents, contractors or invitees;
- It shall indemnify and release the Licensor from and against all actions, claims, demands, losses, damages, costs and expenses including but not limited to legal costs and expenses for which the Licensor shall or may become liable arising out of the Licensee’s or its employees, agents, contractors or invitees use of or access to the Craft Storage Facility, loss of or damage to the Craft the Craft Storage Facility, other property or persons howsoever caused or any act, omission, neglect, breach or default by the Licensee or its employees, agents, contractors or invitees;
- It shall comply with any rules, regulations and reasonable directions determined or issued by the Licensor from time to time, including any amendments, with respect to the management of the Licensor’s property or the Craft Storage Facility;
- It shall use the Craft Storage Facility solely for the use and enjoyment of the Craft;
- It shall not assign, sub-license or part with its rights under this Contract;
- During the term of this Contract and while the Craft is moored, stored or berthed at the Craft Storage Facility, it shall not sell the Craft without first notifying the Licensor of the purchaser’s details or attempt to sell or hire out the Craft without providing the Licensor with prior written notice;
- During the term of this Contract and while the Craft is moored, stored or berthed at the Craft Storage Facility, it shall not carry out or have carried out repairs and/or maintenance on the Craft, use the Craft Storage Facility for any commercial or business purpose or affix (or have affixed) any poster or sign, including any advertisement relating to the sale of the Craft, without the prior written consent of the Licensor;
- It shall pay interest at the rate of 1.5% per month on any overdue amounts by the Licensee to the Licensor under this Contract and the costs incurred by the Licensor to recover such payments or remedy any breach of this Contract by the Licensee or its servants and agents;
- It shall promptly advise the Licensor of any damage or injury arising on or near the Licensor’s property caused by the Craft or any employee, agent, contractor or invitee of the Licensee or by any person or entity in or around the Craft;
- It shall comply with all laws relating to the use of the Craft Storage Facility, the Craft and the Licensor’s property; and
- It will pay the Licensor upon demand if required any utilities charges incurred as a result of the Licensee’s use of the Craft Storage Facility and these shall be recoverable from the Licensee as though they formed part of the Contract Fee.
3. LIABILITY, RISK AND INSURANCE
The Licensee acknowledges by entering into this Contract that:
- The Licensee has not relied in any way on the Licensor’s skill and judgment;
- The Licensee has satisfied itself as to the condition and suitability of the Craft Storage Facility, access to same and the Licensor’s property;
- The Licensee will use and access the Craft Storage Facility, the Licensor’s Property and the Craft at its own risk and acknowledges and agrees that the Craft may suffer fair wear and tear and deteriorate whilst it is stored at the Craft Storage Facility;
- The Licensor may, at its discretion, board and/or move the Craft and/or its equipment; and
- The Licensee warrants that the Craft has the dimensions and displacement set out in the section headed “Licensee’s Marine Craft”. The Licensee will pay any adjusted fees and shall be liable for any damage or additional expense arising out of the failure of the Craft to have the said dimensions and displacement.
- All express and implied conditions and warranties as to the condition, suitability, quality, fitness or safety of the Craft Storage Facility provided by the Licensor are hereby excluded to the full extent permitted by law. Nothing in this clause shall remove or abrogate the non-excludable statutory warranties or guarantees provided under the Competition and Consumer Act 2010 (Cth) to the extent that they are applicable to this Contract.
- The Licensee, the master of the Craft and its crew are responsible for all rubbish associated with the Craft. Rubbish includes, but is not limited to bilge, engine and other oils, discarded equipment, barnacles, marine growth, paint scraping, etc.
- The Licensee shall insure and keep the Craft and its equipment insured with an insurer of recognised standing acceptable to the Licensor. The Licensee shall on demand produce to the Licensor a certificate of currency of the insurance.
- The Licensee shall not for itself, its servants or agents do any act or thing which might invalidate or prejudice any such insurance.
4. EMERGENCY PROCEDURES
The Licensee agrees and acknowledges that the Licensor may in the event of an emergency and at the Licensor’s sole discretion board or move the Craft and take such other action as may be reasonable in the circumstances. If such emergency has been caused by the Licensee’s Craft then the Craft may be removed at the risk and expense of the Licensee.
Where the Licensee defaults in payment of an account, the Licensee authorises the Licensor to take possession of the Craft, its fittings and/or contents at the cost and risk of the Licensee. If, despite all reasonable attempts by the Licensor to contact the Licensee and demand that the default be rectified, any part of the account remains unpaid for 21 days the Licensee authorises the Licensor to move the Craft to any other craft storage facility or mooring of the Licensor’s choice, and/or sell the Craft, its fittings and/or contents either by public or private sale and to sign any document on behalf of the Licensee which is necessary to facilitate the exercise by the Licensor of its rights under this clause.
6. PERSONAL PROPERTY SECURITIES ACT
- If any Licensor’s Goods are included in the Berth Area or otherwise made available to or used by the Licensee under this Licence, the Licensee acknowledges that the Licensor may register a security interest in respect of those Licensor’s Goods. If an assignee of the Licence, or sub-Licensee of the Berth Area (or any part of them) takes possession of any of the Licensor’s Goods, the Licensor may register a new security interest in respect of those goods, in which the assignee or sub-tenant is the grantor, and the Licensor may also require that any relevant assignment or sub-Licence documents include provisions to the same effect as contained in this clause.
- any of the Licensee’s Property is abandoned on expiry or earlier termination of this Licence; or
- the Licensor exercises its rights under clause 7, the Licensee agrees:
- the Licensor has a security interest over those goods that secures the payment of any amounts due, and any obligations of the Licensee still to be performed, at the time; and
- this Licence constitutes a security agreement.
- The Licensee will provide any information required and otherwise fully cooperate with the Licensor to allow the Licensor to protect and promptly register any security interest under this Licence.
In relation to any security interest registered by the Licensor the Licensee:
- waives its right to receive any notice from the Licensor under section 157(3) of the PPS Act; and
- agrees that the following sections of the PPS Act do not apply - section 95 to the extent that it requires the Licensor to give notice to the Licensee, section 118 to the extent that it allows the Licensor to give notice to the Licensee, and sections 121(4), 125, 130, 132(3)(d), 132(4) and 135.
- PPS Act means the Personal Property Securities Act 2009 (Commonwealth) and the Regulations made under the PPS Act from time to time, and terms used which are defined in the PPS Act have the meanings given in the PPS Act;
Where any amount payable by the Licensee under this Licence is outstanding, the Licensor will have a lien on the following:
- the Licensee’s Marine Craft;
- its fittings and equipment; and
- anything on or attached to the Licensee’s Marine Craft (collectively the “Liened Property”)
- The Licensor may exercise its lien by taking possession of the Liened Property at any time and at any place in its sole discretion whether or not the Term has ended and retain exclusive possession of the Liened Property pending payment of any amount outstanding at the cost and risk of the Licensee.
- At the time of taking possession of the Liened Property the Licensor will notify the Licensee by email to the Licensee’s last stated email address demanding that the outstanding amount be paid in full within 7 days.
The Licensee hereby acknowledges that where the Licensor has not received payment in full of the outstanding amount within 7 days of such notice the Licensor may in its sole discretion:
- move the Liened Property to any other berth, mooring or place within the Marina or such other place where the Liened Property can be safely located;
- sell the Liened Property either by public auction or private sale without notice to the Licensee.
- For the purposes of this clause the Licensee hereby appoints the Licensor as its attorney to sign on behalf of the Licensee as its attorney any document which is reasonably necessary to facilitate the exercise by the Licensor of its rights under this Licence.
- The Licensor is entitled to apply the proceeds of the sale of the Liened Property to satisfy any Licence Fee and/or other amounts owed by the Licensee, any costs incurred by the Licensor in connection with the Liened Property during the period that it is in the possession of the Licensor and any costs associated with the sale of the Liened Property. The surplus proceeds of the sale of the Liened Property, if any, will be paid to the Licensee.
- If the proceeds of the sale of the Liened Property are not sufficient to pay the amount outstanding and any other costs and expenses under clause 8f nothing in this clause reduces or compromises the Licensor’s rights against the Licensee under this Licence.
- The Licensor’s right to take the Liened Property under this clause 8:
- For a Contract Term of one month or more, either party may terminate this Contract with effect on and from the expiry of the Contract Term by providing not less than two month’s written notice prior to the expiration of the Contract Term. Where the Contract Term is daily, either party may terminate this Contract by providing the other party with at least 48 hours’ notice of termination. Refer to clause 9f as cancellation fees may apply for early termination.
- If no such notice is given, this Contract shall automatically renew for a further period equal to the Contract Term commencing the day after the expiry of the initial Contract Term on the same terms contained in this Contract with the exception of the Contract Fee, which shall be updated so as to reflect the Licensor’s then current standard rate for the space occupied by the Craft.
The Licensor may forthwith terminate this Contract by written notice to the Licensee if:
- in the opinion of the Licensor, the Craft Storage Facility becomes unsafe or the Licensor wishes to refurbish or redevelop the Craft Storage Facility; or
- in the opinion of the Licensor any conduct by the Licensee or its employees, servants, agents, contractors, or invitees is prejudicial to the interests of the Licensor’s property or of the Licensor.
Either party may forthwith terminate this Contract by written notice to the other party:
- If the other party is in default of any of its obligations under this Contract and fails to rectify the default within fourteen days (14) from the date on which that party receives a notice demanding that the default be rectified;
- If the other party is a corporation (however described) a receiver, liquidator, official Manager, external administrator or similar is appointed to it or it is insolvent or unable to pay its debts as and when they fall due or has entered into any arrangement or composition or debt Contract however described with its creditors or in relation to any of its business property;
- If the other party is a natural person and has a Trustee in Bankruptcy appointed, has committed an act of Bankruptcy, has entered into a personal insolvency Contract (PIA) Part X Arrangement under the Bankruptcy Act 1966 (Cth) or any composition or debt Contract with creditors, is placed into receivership or has any of that other party’s business property or personal assets so administered; or
- If the other party enters into any discussion or negotiation with creditors, is subject to execution of debt proceedings, examination summons, writ of execution, charging order, injunction, has issued against it a Statement of Claim or Statutory Demand or any equivalent event however described.
- Where the Licensee is unwilling to accept an amendment made to this Contract by the Licensor under to clause 1b, the Licensee may terminate this Contract by providing the Licensor with written notice of termination at any time within the 30 day notification period provided for in that clause.
- the licensee can refer to the Licensor’s Cancellation policy www.dalbora.com.au/legal/cancellation-policy
9. LICENSEE NOT TO BE A TENANT
Nothing in this Contract shall confer on the Licensee any right as a tenant of the Craft Storage Facility or the Licensor’s property, nor create the relationship of landlord and tenant. The right granted by this Contract is personal only.
10. RULES AND REGULATIONS
The Licensor reserves the right to create, amend or cancel any rules or regulations if the Licensor considers that such creation, amendment or cancellation is necessary for the proper management, safety, care or cleanliness of the Licensor’s property and all such amendments and cancellations shall bind the Licensee when notice of them has been given to the Licensee in writing or by posting the amended rules or regulations at the Craft Storage Facility or on the corporate website. The Licensor shall not be liable for any non-enforcement of any rule or regulation or postponement of action or enforcement concerning any rule or regulation or the grant of any indulgence
11. AUTHORITY AND COVENANTS
- The Licensee hereby certifies that it is the legal and beneficial owner or duly authorised agent of the owner of the Craft and that the Licensee shall be personally liable for all fees, amounts, costs, claims, cross claims, contribution claims or liabilities of whatsoever nature arising out of this Contract. The Licensee undertakes to pay all such moneys on demand.
- The Licensee states as an essential term of this Contract that the Craft is not the subject of any defect notice, registration cancellation, suspension, levy of debt, proceeds of crime order, injunction, charging order, seizure, confiscation or similar and is not stolen or otherwise illegally obtained or held, nor are there any proceedings against the Licensee or the Craft with respect to defect notice, registration cancellation, suspension, levy of debt, proceeds of crime, injunction, charging, seizure, confiscation or similar.
- The Licensee covenants that the Craft has not had any alterations or changes to its compliance plate, serial number, hull identification (boat code) number or other registration or identification number.
- Where a natural person signs for themselves and/or a representative signs on behalf of an individual, trust, estate, or corporation the natural person or representative declares that they have full knowledge of all relevant matters given by them in this Contract and that they have full authority to bind the natural person, individual, trust, estate or corporation.
Any notice to be served hereunder shall be duly served if delivered personally to the other party, sent through the post, sent by email or sent by SMS.
The Licensee agrees to notify the Licensor of change of address and contact details within 7 days.
14. BERTH ALLOCATION
The berth, mooring or rack number specified on the front page of this Contract (if any) or allocated to the Licensee from time to time is indicative only. The Licensor shall be entitled to reallocate the Licensee to another berth, mooring or rack at any time.
15. WHOLE CONTRACT
This Contract constitutes the whole Contract between the Licensor and the Licensee in relation to its subject matter and the Licensee warrants that it has not relied upon any statement, representation or warranty made by the Licensor or its servants or agents which is not expressed in this Contract.
16 GOVERNING LAW
This Contract shall be governed by and construed in accordance with the laws of the State of New South Wales and the parties agree to submit to the jurisdiction of the courts of New South Wales.
If anything in this Contract is unenforceable, illegal or void then it may be severed and the rest of this Contract shall remain in force with any necessary interpretive amendments being made. Where there is a minor defect in the form of execution or completion of this Contract or any variation or document executed pursuant to this Contract, this Contract or any variation or document executed pursuant to this Contract shall still have full effect and validity notwithstanding the minor defect in form or execution.
All accounts and/or invoices rendered by the Licensor to the Licensee are on the basis of “errors and omissions excepted” (“E & OE”) and may be amended subsequently notwithstanding any error or omission and the parties hereto shall be responsible to pay or be credited such properly amended account and/or invoices.
19. ASSISTANCE AND GOOD FAITH
The parties to this Contract agree to do all things, take all steps necessary and execute all relevant documents to give commercial effect to this Contract. The parties shall act honestly and in good faith to achieve the commercial intention of this Contract.
UPON EXECUTION OF THIS CONTRACT ALL OF THESE TERMS AND CONDITIONS BECOME LEGALLY BINDING ON ALL PARTIES