Tohatsu Perth
Falcon Services Australia is your trusted source for boat maintenance and repair. We specialize in both luxury and commercial vessels, and we have a highly experienced team of professionals who understand the needs of the maritime industry. With over 70 years of experience in our team, our team is dedicated to keeping your boats in top condition.
At Falcon Services Australia, we use the latest technologies and techniques to ensure that your vessels continue to perform at the highest level. We understand the importance of safety, reliability and cost-efficiency, and we strive to provide the best service possible. Contact us today to learn more about our services.
Your Local Marine Service Agent
We understand that the safety, reliability, and enjoyment of your vessel are paramount. With this in mind, we want to share some insights on the importance of allowing our technicians the necessary time to thoroughly complete each job, the rationale behind the costs involved, and the mutual benefits provided by our warranty and service provisions.
Quality Takes Time: Every boat is a complex amalgamation of systems and components, each requiring specialized knowledge and attention. Rushing through repairs or maintenance can overlook minor issues that may escalate into major problems. By taking the necessary time, our technicians ensure every aspect of your boat is meticulously inspected, maintained, or repaired. This attention to detail is crucial for preventing future breakdowns, ensuring the longevity of your boat, and most importantly, the safety of all on board.
Value and Cost-Effectiveness: Initially, it may seem that a thorough job carries a higher cost. However, this approach is more cost-effective in the long run. Addressing issues comprehensively prevents the recurrence of problems, saving you money on repeat repairs. Moreover, well-maintained boats have higher resale values and reduced operational costs, providing better fuel efficiency and fewer emergency repairs.
Warranty and Service Provisions: Our warranty and service provisions are designed to offer you peace of mind. When a job is done right, the likelihood of issues arising is significantly minimized. However, should a problem occur related to the service provided, our warranty covers the necessary adjustments at no additional cost to you. This commitment not only ensures your boat's optimal performance but also solidifies the trust and reliability you seek in a service provider.
Mutual Benefits: The thoroughness of our work and the integrity of our warranty reflect our dedication to excellence and customer satisfaction. For us, your trust is invaluable. By investing in comprehensive service today, you are securing the reliability and performance of your boat for tomorrow. This approach safeguards your investment and enhances your boating experience, a goal we both share.
We appreciate your understanding and are here to answer any questions you may have about our processes, costs, or the specifics of the warranty coverage. Our priority is to ensure that you feel confident in the quality and value of the services we provide.
DRIVE IN WORK SHOP SERVICE MONDAY TO FRIDAY
GENUINE MERCRUISER MANIFOLDS AND RISERS BACK IN STOCK ALL MODELS
Terms and Payments
Terms and Conditions for providing our services.
Introduction
This document serves as a comprehensive guide to the business relationship between you, the Owner, and us, Falcon Services Australia, with respect to boat repair and maintenance services. It provides clear expectations for both parties and aims to foster a professional and mutually beneficial relationship. The key aspects of our interaction are as follows:
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Communication: We will maintain an open line of communication with you through various channels, including phone calls, emails, text messages, or in-person meetings. Our goal is to keep you informed about the progress of the work and address any concerns or questions you may have.
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Cost Estimates: We will provide you with an estimate of the cost of repairs or maintenance services for your boat. This estimate will be based on our professional knowledge and experience in the industry, and we will make every effort to ensure its accuracy. However, please note that unforeseen issues may arise during the course of work that could affect the final cost.
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Scope of Work: We will clearly outline the specific work we will perform on your boat for the agreed-upon cost. This may include details of the repairs, maintenance services, or any additional work requested by you. We will communicate any changes or adjustments to the scope of work as needed, and obtain your approval before proceeding with any additional work.
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Payment: You agree to pay the agreed-upon costs for the work performed upon completion of the services. This may include costs related to labour, parts, materials, and any additional work agreed upon by both parties.
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Warranties: We will provide warranties for the work performed and the parts used in the repairs or maintenance services, as outlined in the agreement. These warranties are intended to give you peace of mind, knowing that our work meets industry standards and that we stand behind the quality of our services.
In summary, this document serves as a guide to our professional relationship, ensuring that we maintain clear communication, provide accurate cost estimates, outline the scope of work, establish payment terms, and offer warranties for our services. By adhering to these guidelines, we aim to build a strong, transparent, and successful working relationship that meets your needs and exceeds your expectations.
Contents
1.1PAYMENT DEFAULT, LIENS, AND PERSONAL HOLD HARMLESS. 5
2. Estimates are not guarantees: 6
Unforeseen Conditions and Problems. 7
3. Ufo (unidentified failure occurrences): 7
4. Payment of Undisputed Amounts and Handling of Disputes: 8
2. Administration Time Charges: 8
3. Payment of Undisputed Amounts: 8
4. Good Faith and Smooth Resolution: 8
6. Cancellation, reduction, or modification of ordered work: 9
2. Materials and Associated Costs: 10
7. Limited warranty, disclaimers, and exclusive remedy: 10
9. Time limit for filing claims: 11
2. War, riots, and civil disturbances. 12
3. Weather, flood, fire, and explosion: 12
4. Failure of suppliers or subcontractors: 12
5. Strikes and labour disturbances: 12
1. Breach of the Agreement: 13
3. Failure to Provide Access: 13
1. Suspension or Termination: 13
2. No Overlap with Contracted Work: 15
3. No Warranty or Liability: 15
4. Risk and Liability Assumption: 15
5. Compliance with Yard Policies and Best Management Practices. 15
1. Defend, Indemnify, and Hold Harmless: 15
2. Attribution of Pollution: 15
2. Provisional or Enforcement Remedies: 16
17. Miscellaneous and Confirmations: 17
4. Telephone Confirmations. 17
20. Inspections and Reports Disclaimer: 19
1. CORROSION INTERNALLY TO ANY METALLIC PART: 19
2. INTERNAL CONDITION OF GLASS OVER PLY HULLS AND STRUCTURES: 19
4. ENGINE COMPONENTS, INCLUDING ESTIMATED LIFESPANS OF SUCH: 20
1. Engagement:
Owner and Vessel agree to pay Falcon Services Australia (without deduction or offset) for all labour and materials provided in connection with the ordered work as follows:
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For workshop bookings a deposit of $0 for general servicing shall be made upon agreeing to this Agreement.
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For repairs, deposit of 50% of the estimated repair cost before work commences.
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For mobile, slip, or on water services payment of the estimate must be paid in full at the time of the booking.
Thereafter, Falcon Services Australia will invoice upon completion of work or at periodic intervals of ___ ___ __ (weekly if not filled in) until the work is completed. Payment is due upon receipt of the posted repair order.
All payments must be made before release of the vessel to the owner, or the job is invoiced.
No invoice will be created until the job has been finalised and full payment has been received.
Time is of the essence as storage fees apply, this also applies for time for stagnant storage waiting for weekly payments on continuing jobs.
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1.1PAYMENT DEFAULT, LIENS, AND PERSONAL HOLD HARMLESS:
If the Owner or Vessel fails to make the required payments when due, Falcon Services Australia reserves the right to immediately cease any and all work on the vessel until payment is received or Falcon Services Australia is provided with adequate assurances that payment will be made in accordance with these terms and conditions. Any overdue amount by more than ten days will be subject to default interest at the lesser of (1) twenty percent or (2) the maximum legal rate.
The granting of extensions for payment will not diminish, waive, release, or discharge the Owner's or Vessel's obligations under this Agreement. If Falcon Services Australia deems it necessary to retain counsel and/or a collection agency to collect unpaid invoices, the Owner and the Vessel agree to pay for Falcon Services Australia's reasonable costs of collection, including, but not limited to, lawyer fees, other collection costs, and collection agency fees.
The Owner acknowledges and agrees that the services provided by Falcon Services Australia entitle the company to a maritime lien against the Vessel, as well as state liens under Australian, Local State and Western Australian law. The Owner agrees that these liens will extend to and secure all amounts due to Falcon Services Australia under this Agreement or by law, and that no release of possession shall waive or prejudice such liens.
Furthermore, the Owner agrees to hold harmless and indemnify Falcon Services Australia's staff, directors, and agents from any charges, claims, damages, losses, or expenses arising out of the Owner's or Vessel's breach of this Agreement. In addition, the Owner agrees not to pursue any criminal charges against Falcon Services Australia, its staff, directors, or agents in connection with any such breach. In the event of a breach, the Owner agrees to pay a penalty of $250,000 AUD for each instance of breach to compensate Falcon Services Australia for any damages or losses incurred.
EXPLANATION:
In this clause, the Owner acknowledges their responsibility to protect Falcon Services Australia's staff, directors, and agents from any legal consequences resulting from the Owner's or Vessel's breach of the Agreement. This includes indemnifying them from any charges, claims, damages, losses, or expenses that may arise due to a breach.
1.2 Criminal charges:
Additionally, the Owner agrees not to pursue criminal charges against Falcon Services Australia, its staff, directors, or agents in connection with any such breach. This provision emphasizes the intention of the parties to resolve disputes through civil remedies and contractual penalties rather than criminal proceedings.
To further emphasize the importance of adhering to the terms of the Agreement, the Owner agrees to pay a substantial penalty of $250,000 AUD for each instance of breach. This penalty is designed to compensate Falcon Services Australia for any damages or losses they may suffer as a result of the Owner's or Vessel's breach.
EXPLANATION:
By including this clause, both parties acknowledge the importance of adhering to the terms of the Agreement and provide a clear framework for resolving any breaches in a fair and efficient manner, while also discouraging the use of criminal proceedings in such disputes.
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2. Estimates are not guarantees:
When requested by customers, Falcon Services Australia will provide cost and completion date estimates to Owner. Any such estimates will be made honestly and in good faith based on Falcon Services Australia knowledge and experience, but Falcon Services Australia cannot guarantee their accuracy. Owner acknowledges that boat repair work cannot always be accurately estimated in advance; that once work begins, unforeseen conditions or problems frequently arise; and other factors can affect estimated costs and completion dates. Owner accepts these realities and agrees any estimates furnished are to be used as guidelines only and are not binding on Falcon Services Australia.
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Estimates Explanation:
This clause addresses the provision of cost and completion date estimates by Falcon Services Australia for the work requested by the Owner.
Good Faith Estimates: When the Owner requests estimates, Falcon Services Australia will provide them based on their knowledge and experience in the industry. These estimates are made honestly and in good faith, but Falcon Services Australia cannot guarantee their accuracy.
Unforeseen Conditions and Problems: The Owner acknowledges that boat repair work can be unpredictable, and unforeseen conditions or problems may arise once work begins. These unexpected issues can affect the estimated costs and completion dates initially provided by Falcon Services Australia.
Guidelines Only: The Owner agrees to treat any estimates provided by Falcon Services Australia as guidelines rather than binding commitments. This understanding ensures that both parties are aware of the inherent uncertainties in boat repair work and that Falcon Services Australia is not held strictly accountable for potential discrepancies between the initial estimates and the actual costs or completion dates.
By including this clause in the agreement, the Owner and Falcon Services Australia have a clear understanding of the nature and limitations of the estimates provided, helping to manage expectations and minimize potential disputes over costs and completion timelines.
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3. Ufo (unidentified failure occurrences):
UFO Failures: The Owner acknowledges that UFO failures may occur when the vessel is not serviced in accordance with the manufacturer's specifications. These are unforeseen issues that may arise due to improper or inadequate maintenance. You agree to pay for 3 hours of applicable technician labour for each instance of a UFO failure. The Owner agrees to cover any additional costs associated with addressing such failures, which may result from not adhering to the manufacturer's recommended maintenance schedule. The Owner understands the importance of proper servicing to prevent UFO failures and potential damage to the vessel.
The Owner further agrees that this fee will be incurred for all applicable instances of UFO failures and will knowingly bear the costs associated with addressing such failures. The Owner will be responsible for paying the technician's current labour rate for the additional time spent on resolving these unforeseen issues, which may result from not adhering to the manufacturer's recommended maintenance schedule. By accepting these terms, the Owner acknowledges their responsibility for any additional costs incurred due to UFO failures.
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4. Payment of Undisputed Amounts and Handling of Disputes:
This clause addresses the Owner's responsibility to pay for undisputed work and associated costs, as well as the handling of disputes and additional charges that may arise from dealing with such disputes.
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Payment Responsibility: The Owner is responsible for paying all materials, freight, and fees in full, even in the event of a dispute. This ensures that Falcon Services Australia is paid for the undisputed portions of the work without being affected by any disagreements over specific aspects.
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Administration Time Charges: In the event of a dispute, the Owner is also responsible for covering any administration time spent by Falcon Services Australia in dealing with the dispute. This includes telephone calls, meetings, and other administrative tasks. The administration time will be charged at a rate of $130 per hour (including GST).
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Payment of Undisputed Amounts: If there is a disagreement or issue regarding any specific aspect of the work performed by Falcon Services Australia, the Owner is still obligated to promptly pay for all other portions of the work that are not being disputed. This ensures that any disagreements or claims do not result in delayed payment for the entire project, allowing both parties to focus on resolving the specific dispute without affecting the overall payment and work relationship.
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Good Faith and Smooth Resolution: By paying for undisputed items in a timely manner, the Owner demonstrates good faith and allows for a smoother resolution process for the contested items. This approach helps maintain a positive working relationship between the Owner and Falcon Services Australia, even in the event of disagreements.
EXPLANATION:
By including this clause in the agreement, both parties have a clear understanding of their responsibilities regarding payment and dispute resolution, which helps to minimize potential disputes and maintain a healthy working relationship.
4. REPRESENTATIONS: Unless otherwise agreed upon, Falcon Services Australia commits to performing the work described above, as well as any additional work requested by the Owner, in accordance with the Owner's instructions and good marine practice. Labour will be charged at a variable hourly rate specified in the agreement. If no specific labour rate is mentioned, labour will be charged at Falcon Services Australia's current rates, which may be subject to change. Falcon Services Australia reserves the right to adjust rates periodically. In the event of a rate increase during the term of this Agreement, the Owner agrees to pay the updated rates for all work performed after the rate change takes effect.
Unidentified Failure Origin (UFO) Failures: These are failures that occur as a result of not servicing the vessel in accordance with the manufacturer's specifications. The Original Equipment Manufacturer (OEM) allows for 3 hours of top technician labour for each instance of such failure. The Owner acknowledges and agrees to bear the costs associated with these UFO failures, which will be charged at the technician's current rate for each applicable instance. This clause highlights the importance of proper maintenance in accordance with the manufacturer's guidelines, and ensures that the Owner is aware of their responsibility for any costs related to UFO failures.
5. Owner's representations:
The Owner asserts that they (1) are either the owner of the Vessel or have been authorized by the Vessel's owner to enter into this Agreement, (2) have read and agree to comply with Falcon Services Australia's Yard Policies and Best Management Practices Agreement, (3) will maintain marine liability insurance on the Vessel with coverage limits of no less than $2,000,000, and (4) will periodically inspect and oversee the progress of the work being carried out, and be solely responsible for determining the suitability of the work performed and materials installed for the Owner's intended purposes.
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EXPLANATION:
In this clause, the Owner confirms their authority to enter into the Agreement and their understanding of their responsibilities in relation to the work being performed. They agree to abide by the policies set forth by Falcon Services Australia and maintain adequate insurance coverage for the Vessel. Furthermore, the Owner accepts the responsibility of monitoring the work's progress and ensuring that the completed work meets their intended objectives. This clause ensures clear communication and understanding of the Owner's role and responsibilities throughout the duration of the Agreement.
6. Cancellation, reduction, or modification of ordered work:
In the event that the Owner decides to cancel, reduce, or modify the scope of the work initially ordered, the Owner agrees to compensate Falcon Services Australia for the following:
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1. Work Performed: The Owner is responsible for paying for all work that has been completed by Falcon Services Australia or its subcontractors up until the point when Falcon Services Australia receives actual notice from the Owner regarding the requested change in the work order. This ensures that Falcon Services Australia is fairly compensated for the services rendered prior to the change request.
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2. Materials and Associated Costs: The Owner is also responsible for paying for all materials that have been ordered by Falcon Services Australia in order to complete the initial work order. This includes any shipping or other related costs associated with procuring the materials. If Falcon Services Australia is able to return any of the materials and receive a credit for them, the Owner's obligation to pay a minimum 30% restocking fee will be charges for these occurrences, for those materials will be reduced by the amount of the available return credit.
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By including this clause, Falcon Services Australia ensures that it is protected from financial losses in case the Owner changes their mind or alters the scope of work after the project has already commenced. It encourages clear communication between both parties and helps maintain a fair and transparent working relationship.
7. Limited warranty, disclaimers, and exclusive remedy:
Falcon Services Australia offers a limited warranty for its repairs, ensuring that they will be free of defects in materials under normal service conditions for a period of six months from the earlier of (1) the date the work was completed, or (2) the date the Vessel was redelivered to the Owner.
Falcon Services Australia does not provide any other warranties, whether express or implied. Specifically, it disclaims any additional warranties, including, but not limited to, warranties of seaworthiness, workmanlike performance, merchantability, or fitness for a particular purpose.
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The Owner agrees that if there are any faulty or defective repairs, installation of defective materials, or any other breaches of the warranty, their sole and exclusive remedy is limited to Falcon Services Australia's choice of repairing, replacing, or adjusting the faulty or defective work or materials. This means that the Owner cannot seek any other remedies outside of those provided by Falcon Services Australia under this warranty.
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Any repair, replacement, or adjustment under this warranty will be performed by Falcon Services Australia at its yard. The Owner is responsible for all costs associated with transporting the Vessel to and from Falcon Services Australia's yard for any such warranty work.
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By including this clause, both parties understand the extent of the warranty offered by Falcon Services Australia, as well as the limitations and exclusivity of the remedies available to the Owner in case of any issues with the work performed.
8. Limitation of remedies:
The Owner acknowledges and agrees that Falcon Services Australia's total liability, regardless of whether it arises from a breach of contract or any legal theory, shall not exceed the lesser of two amounts: (1) $300,000.00 or (2) the total sum paid by the Owner to Falcon Services Australia under this Agreement. This means that the maximum amount Falcon Services Australia could be held liable for in the event of any personal injury, death, or property damages is limited to either $300,000.00 or the amount the Owner has paid for the services, whichever is lower.
EXPLANATION:
This limitation of remedies serves to protect Falcon Services Australia from excessive or unreasonable claims or damages while still ensuring a fair and just compensation for any legitimate claims made by the Owner. It provides a clear understanding of the potential risks and liabilities associated with the Agreement and helps both parties to assess and manage their exposure to potential losses, excluding liability for delays.
9. Time limit for filing claims:
No claim arising out of this transaction, including, but not limited to contractual claims for breach of contract and tort claims based upon alleged negligent repair or on the theories of strict liability or otherwise, shall be valid against Falcon Services Australia, unless said claim is presented in writing to Falcon Services Australia within six (6) months of the earlier of (1) the date work was completed; or (2) the date the Vessel was redelivered to Owner.
The Owner must present their claim in writing to Falcon Services Australia no later than six (6) months from the earlier of two events: (1) the date when the work was completed, or (2) the date when the Vessel was redelivered to the Owner. This time frame ensures that both parties have a clear understanding of when any claims must be filed, and it helps prevent the possibility of disputes arising long after the work has been completed.
EXPLANATION:
By setting a specific time limit for filing claims, Falcon Services Australia is able to minimize its exposure to potential legal disputes and liabilities, while the Owner remains protected by being given a reasonable period within which to assert any claims related to the work performed. This clause encourages prompt communication and resolution of any issues that may arise, ensuring that both parties can focus on the efficient completion of the work and maintain a productive working relationship.
10. Hold harmless clause:
The Owner agrees to unconditionally and irrevocably hold harmless Falcon Services Australia, its officers, directors, employees, agents, subcontractors, and representatives from and against any and all liabilities, claims, losses, damages, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or in connection with any work performed by Falcon Services Australia under this Agreement or related to the Vessel, regardless of the cause or any fault or negligence on the part of Falcon Services Australia, its officers, directors, employees, agents, subcontractors, or representatives.
EXPLANATION:
By agreeing to this hold harmless clause, the Owner acknowledges and accepts full responsibility for any consequences that may arise from the work performed by Falcon Services Australia and waives any right to bring a claim against Falcon Services Australia for any reason related to the work performed or the Vessel. This clause is intended to provide Falcon Services Australia with the broadest possible protection against liability and to completely absolve Falcon Services Australia of any responsibility for any issues, damages, or losses that may arise during the course of their working relationship with the Owner.
11. Force majeure:
The Force Majeure clause provides that Falcon Services Australia will not be held responsible for any loss, damage, or delay in completing repairs if such events are caused by circumstances beyond their control. These circumstances may include, but are not limited to:
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Acts of God: Natural disasters such as earthquakes, hurricanes, tornadoes, or other severe weather events that could hinder or delay the completion of repairs.
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War, riots, and civil disturbances: Unforeseen social or political unrest, military conflicts, or other violent events that disrupt normal operations and prevent Falcon Services Australia from performing its obligations under the agreement.
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Weather, flood, fire, and explosion: Extreme weather conditions or other disasters like floods, fires, or explosions that may damage the Vessel, equipment, or facilities and prevent Falcon Services Australia from completing the work as planned.
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Failure of suppliers or subcontractors: If suppliers or subcontractors are unable to deliver necessary materials or complete their work on time due to their own issues or challenges, Falcon Services Australia cannot be held responsible for the resulting delays or losses.
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Strikes and labour disturbances: Any disruption to work caused by labour disputes, strikes, or other work stoppages involving Falcon Services Australia's employees, subcontractors, or third parties could result in delays or additional costs that are beyond Falcon Services Australia's control.
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Government actions: The Australian Government may impose priorities or allocations that impact Falcon Services Australia's ability to perform its obligations under the agreement, such as restrictions on materials, labour, or other resources.
EXPLANATION:
By including this Force Majeure clause, both parties acknowledge that there may be unforeseeable events or circumstances that could impact Falcon Services Australia's ability to complete the work as agreed. In these cases, Falcon Services Australia will not be held liable for any losses, damages, or delays resulting from such events, as they are beyond the control of the company.
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12. Default and Remedies:
The Default and Remedies clause outlines various events that would constitute a default under the agreement, as well as the remedies available to Falcon Services Australia in the event of such a default. These events include:
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Breach of the Agreement: If either party breaches the terms of this Agreement, including the Yard Policies and Best Management Practices (BMP) Agreement, it is considered a default.
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Failure to Pay: If the Owner fails to pay any amounts owed under the agreement when they are due, it constitutes a default.
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Failure to Provide Access: If the Owner does not provide access to the Vessel as required for Falcon Services Australia to perform its services, this constitutes a default.
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False Representations: If the Owner commits any act or omission that causes any of the representations made in paragraph 2 to be false, this constitutes a default.
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Tortious Acts: If the Owner or the Vessel commits any act or omission that constitutes a tort against Falcon Services Australia or third parties, it is considered a default.
Upon the occurrence of any default by the Owner or the Vessel, Falcon Services Australia has various remedies available to it, including but not limited to:
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Suspension or Termination: Falcon Services Australia may choose to suspend its performance under the agreement or terminate the agreement altogether.
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Storage Charges: Falcon Services Australia may impose storage charges on the Vessel at its current storage rates.
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Retaining Possession: Falcon Services Australia may retain possession of the Vessel until it is fully paid for the services rendered.
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Legal Remedies: Falcon Services Australia may pursue all available remedies under Australian, state, and/or maritime lien laws, including non-judicial sale of the Vessel.
By including this Default and Remedies clause, both parties acknowledge the potential consequences of a default under the agreement and the remedies available to Falcon Services Australia in such circumstances.
13. Additional work:
The Additional Work clause addresses situations where the Owner requests Falcon Services Australia to modify or add to the initially agreed-upon work. In such cases, the modified or additional work will be charged on a time and materials basis at the rates currently in effect at the time of the request. This means that the Owner will be charged for the actual labour hours spent on the additional work and the cost of any materials required for the completion of the requested tasks.
EXPLANATION:
This clause also states that the modified or additional work will be subject to all the terms and conditions outlined in the Agreement. This ensures that both parties are aware that any changes or additions to the original scope of work will be governed by the same rules and guidelines as the initial agreement.
By including this Additional Work clause, both parties understand and agree that any changes or additions to the work requested will be subject to additional charges and will follow the same terms and conditions as the original agreement.
14. Working conditions:
The Working Conditions clause sets guidelines for the Owner, or their employees, representatives, or agents, to perform work on the Owner's vessel while it is at Falcon Services Australia facilities. This clause establishes certain conditions and restrictions to ensure that the work is carried out safely and responsibly.
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Prior Notice: The Owner must inform Falcon Services Australia in advance about the work to be performed and by whom. This ensures that Falcon Services Australia is aware of any activities taking place on the vessel.
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No Overlap with Contracted Work: The Owner cannot perform work on any job that is already covered by an existing order or contract between the Owner and Falcon Services Australia. This prevents any confusion or conflicts regarding responsibility and accountability for the work.
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No Warranty or Liability: Falcon Services Australia will not provide any warranty for the work performed by the Owner or their representatives, nor will they be liable for any issues arising from that work. This places the responsibility for the quality and performance of the work solely on the Owner.
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Risk and Liability Assumption: The Owner assumes all risks and liabilities for any damage, loss, delay, or claims related to the work they perform. They are also responsible for defending, indemnifying, and holding Falcon Services Australia harmless from any such damages, losses, or claims.
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Compliance with Yard Policies and Best Management Practices: Any work performed by the Owner, or their representatives must adhere to Falcon Services Australia's Yard Policies and Best Management Practices agreement, as well as any other restrictions imposed by Falcon Services Australia. Failure to comply with these rules may result in the exclusion of the Owner's personnel from Falcon Services Australia's facilities.
EXPLANATION:
By including this Working Conditions clause, both parties understand the rules and limitations for the Owner or their representatives performing work on the vessel while it is at Falcon Services Australia facilities. This ensures a clear understanding of responsibilities and liabilities and promotes a safe working environment.
15. Pollution:
The Pollution clause outlines the responsibilities and liabilities of the Owner and Vessel in the event of environmental pollution attributable to the vessel while it is at Falcon Services Australia facilities.
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Defend, Indemnify, and Hold Harmless: The Owner and Vessel are responsible for defending, indemnifying, and holding Falcon Services Australia harmless from any liability or expense that may arise from pollution caused by the vessel. This includes cleanup costs, fines, penalties, civil damages, Resource Damage Assessments, costs, and reasonable attorney's fees.
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Attribution of Pollution: The Owner and Vessel are responsible for any pollution caused by the vessel, unless it is proven that the pollution was solely caused by the negligence of Falcon Services Australia or its employees. In such cases, Falcon Services Australia would be responsible for the consequences of the pollution.
EXPLANATION:
By including this Pollution clause in the agreement, both parties understand their respective responsibilities and liabilities regarding environmental pollution. This ensures that the Owner and Vessel take appropriate precautions to prevent pollution and are aware of the consequences if pollution occurs. It also provides a clear understanding of liability in the event of pollution caused by negligence on the part of Falcon Services Australia or its employees.
16. Disputes:
The Disputes clause outlines the process and governing laws for resolving disputes between the Owner and Falcon Services Australia.
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Arbitration Award: If a dispute arises between the parties, they may choose to resolve the dispute through arbitration. The judgment on the arbitration award can be entered in any court that has jurisdiction over the matter.
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Provisional or Enforcement Remedies: The parties are not precluded from seeking provisional or enforcement remedies in aid of arbitration, such as temporary restraining orders, preliminary injunctions, or other measures to preserve the status quo while the arbitration proceeds.
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Lien Rights: The Disputes clause does not prevent Falcon Services Australia from exercising its lien rights or seeking enforcement of those rights in any court with jurisdiction.
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Governing Law: The laws of Western Australia will govern the resolution of disputes under this agreement, except for any assertion by Falcon Services Australia of its maritime lien rights, which will be governed by general maritime law.
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Award of Costs: In the event of a dispute, Falcon Services Australia is entitled to an award of costs, including judgment interest, legal fees associated with the judgment, and all related attorneys' fees. Additionally, in any dispute, regardless of the outcome, the Owner shall be liable for Falcon Services Australia's and its contractors' legal fees, costs, and expenses in relation to any claim made against the company.
EXPLANATION:
By including this Disputes clause in the agreement, both parties have a clear understanding of the process for resolving disputes and the governing laws that apply to such disputes. This helps to ensure a fair and efficient resolution of any disagreements that may arise during the course of the agreement and encourages the Owner to carefully consider any potential claims before pursuing legal action.
17. Miscellaneous and Confirmations:
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Miscellaneous: This contract serves as the final, exclusive, and complete agreement between the parties. Changes or modifications to the contract can only be made through a written instrument signed by both parties. If any provision of this Agreement is deemed unenforceable, the remaining terms will still be in full force and effect. Falcon Services Australia will dispose of old and broken parts unless a written agreement is made before work begins. All agreements entered into via web, telephone, or text confirm acceptance of these terms and conditions, regardless of whether a signature is provided. By agreeing to this contract, the client acknowledges that all telephone calls made to and from the company will be recorded and stored as evidence, and may be used for quality record keeping and training purposes.
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Confirmation #1: Web bookings are considered to have agreed to the terms and conditions through the digital signature process, which is completed by filling out the booking form.
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Confirmation #2: Telephone bookings confirm agreement to the terms and conditions through verbal confirmation of the client's address and/or full name, by text message sent to 0458852591, or by replying to the confirmation email sent at the time of booking.
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Telephone Confirmations: As per Australian consumer law, telephone confirmations for service and additional repair work or repair constitute a verbal contract. These agreements will be documented and treated as confirmation according to Falcon Services Australia's operating procedures.
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Cancelation Terms: Please note that a cancellation fee of $135 will be charged for bookings made for the same day or next day within 48 hours of making such booking for service or call out after booking if you change your mind or cancel the service.
EXPLANATION:
This section clarifies the methods by which clients can confirm their agreement to the contract terms and conditions, as well as outlining the process for making changes to the contract. It also explains how Falcon Services Australia will handle old and broken parts, and reaffirms the contract's enforceability. By providing multiple options for confirming agreement to the contract, Falcon Services Australia ensures that clients are aware of and consent to the terms and conditions.
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18. Defamation clause:
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The Owner agrees not to engage in any defamatory actions against Falcon Services Australia, its staff, directors, or agents, whether verbally, in writing, or through online forums, including but not limited to social media platforms. This prohibition extends to defamatory comments or posts made by the Owner, or any person connected to the Owner or potential customer, in response to or in connection with any negative or disparaging information about Falcon Services Australia.
Defamatory actions include, but are not limited to, the publication or dissemination of false, derogatory, or damaging statements or information about Falcon Services Australia, its services, or its employees, which could harm the company's reputation or result in financial losses. The Owner understands that engaging in such actions may result in legal consequences, including damages, injunctive relief, and/or other remedies as allowed by law.
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In the event of a breach of this defamation clause, the Owner agrees to indemnify and hold harmless Falcon Services Australia, its staff, directors, and agents from any and all claims, damages, losses, or expenses arising out of or in connection with the defamatory actions. The Owner further agrees to take all reasonable steps to mitigate and rectify any harm caused by such defamatory actions, including the removal of any defamatory content and the issuance of a public retraction or apology, as deemed necessary by Falcon Services Australia.
Additionally, for each instance of defamatory actions in breach of this clause, the Owner agrees that Falcon Services Australia shall be entitled to recover a minimum of $300,000 AUD without the requirement to provide proof of losses to a court. However, this amount shall not be deemed as the limit of recovery, and Falcon Services Australia reserves the right to claim a higher amount in damages if supported by evidence of greater losses or harm.
​ EXPLANATION:
By including this defamation clause, both parties acknowledge the importance of maintaining a professional and respectful relationship and protecting the reputation and goodwill of Falcon Services Australia from unjustified and harmful defamatory actions.
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19. Storage fees:
This clause outlines the storage fees that may be applied if the vessel owner does not collect their vessel and pay the invoice in full upon the completion of the work.
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Storage Fee: If the vessel owner fails to collect their vessel and pay the invoice in full when the work is completed, they will be charged a storage fee of $77.00 (inclusive of GST) per day. This fee will be applied from the date the work is completed until the vessel is collected and the invoice is paid in full.
​ EXPLANATION:
The purpose of this clause is to provide a clear understanding of the storage fees that may be incurred if the vessel owner does not fulfill their obligations regarding the collection of the vessel and payment of the invoice upon the completion of the work. This clause aims to encourage timely payment and collection of the vessel, ensuring the efficient use of space and resources at Falcon Services Australia's facilities.
20. Inspections and Reports Disclaimer:
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This disclaimer highlights the scope and limitations of the inspections and reports provided by Falcon Services Australia, with a particular focus on specific components that may not be covered.
Scope of Inspection: Falcon Services Australia takes reasonable care when performing inspections and producing related reports. However, these inspections and reports only cover parts of the vessel that can be examined without undertaking major work.
Limitations: The inspection and report do not provide information about the condition of every part of the vessel. Specifically, they do not address parts that are inaccessible without significant work. The limitations include, but are not limited to:
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CORROSION INTERNALLY TO ANY METALLIC PART: The inspection and report will not cover internal corrosion of metallic components within the vessel or their estimated lifespans.
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INTERNAL CONDITION OF GLASS OVER PLY HULLS AND STRUCTURES: The inspection and report will not assess the internal condition of glass over ply hulls and structures or their estimated lifespans.
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WHEEL BEARINGS: The inspection and report will not evaluate the condition of wheel bearings or their estimated lifespans.
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ENGINE COMPONENTS, INCLUDING ESTIMATED LIFESPANS OF SUCH: The inspection and report will not provide information on engine components' condition or their estimated lifespans.
EXPLANATION:
The purpose of this disclaimer is to set clear expectations for the vessel owner regarding the extent of the inspection and the information provided in the report, with particular emphasis on the limitations related to specific components. This helps to ensure a mutual understanding of the services provided by Falcon Services Australia and the limitations of the inspection process.
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