BIG BOAT SHED TERMS AND CONDITIONS
"Big Boat Shed" means Cairns Boating Solutions Pty Ltd ACN 156 318 811 and its successors, assigns, servants and agents.
"Owner" means the owner of the vessel and/or any party requesting work to the Vessel and/or any person signing the service agreement.
"Services" means all work, services (including the provision of storage) and goods supplied by Big Boat Shed for the Vessel or the Owner.
"Storage Area" means the land occupied by Big Boat Shed at 35-37 Tingira Street, Portsmith or the land adjacent to that area.
"Storage Fee" means the amount advised by Big Boat Shed for the storage of the Vessel in the Storage Area.
"Vessel" includes all equipment, fittings, plant, chattels and things belonging to or associated with or for use in connection with the vessel.
1. Services and Storage of Vessel
1.1. In consideration of the Owner’s obligations under these terms, Big Boat Shed will:
*(a) Raise the Vessel and transport the Vessel from Smiths Creek to the Storage Area;
(b) Store the Vessel for the Owner on the Storage Area;
*(c) Return the Vessel from the Storage Area to Smiths Creek at the end of the storage;
(d) Perform any other Services as the parties agree in writing.
1.2. Big Boat Shed reserves the right to relocate the Vessel within the storage facility without notice to the Owner.
*NOTE:This paragraph only applies where the relevant box on the front page of this agreement has been marked [x]
2. Payment of Storage Fee and Other Charges
2.1. The Storage Fee must be paid by the Owner to Big Boat Shed monthly in advance in the manner directed by Big Boat Shed.
2.2. The Owner must pay Big Boat Shed’s charges for any other Services performed by it within 7 days of the charges being invoiced and before the
return of the Vessel.
2.3. Where the agreement continues for more than 6 months, Big Boat Shed may vary the Storage Fee by giving 14 days notice in writing to the Owner.
3. Owner’s warranties
The Owner warrants and represents to Big Boat Shed the following:
3.1. The Owner has legal title to the Vessel;
3.2. The Vessel is at all times fully insured against loss and damage for all usual maritime risks and for public liability and workers' compensation
insurance, and the Owner agrees to provide evidence of such insurances immediately on request and before commencement of works;
3.3. The Vessel is free from all encumbrances, claims or liens;
3.4. The Owner is not bankrupt nor has any receiver been appointed over or in respect of any of the Owner’s assets;
3.5. The Owner has not agreed to sell the Vessel; and
3.6. If any act, matter or thing occurs or becomes known to the Owner which is inconsistent with the warranties and representations contained in this
clause, the Owner must immediately give Big Boat Shed written notice of that act, matter or thing.
4. Risk, Liability and Indemnity
4.1. Risk in relation to the Vessel and any other property or thing brought into the Storage Area by the Owner remains with the Owner at all times.
4.2. Big Boat Shed is not a bailee or warehouseman of the Vessel.
4.3. Big Boat Shed is not liable for any loss or damage to or destruction of the Vessel or any other property of the Owner or for any loss or injury
incurred or suffered by any person (including the Owner) or for any other loss and damage (including any consequential, indirect, economic loss or
loss of profits) arising from any cause whatsoever including by negligence of Big Boat Shed or its servants and agents.
4.4. To the extent permitted by law, any implied guarantees, conditions, warranties and representations are excluded.
4.5. The Owner indemnifies Big Boat Shed and its servants and agents from and against all claims, demands, actions, damages, loss, costs and
expenses brought or made against or suffered or incurred by Big Boat Shed arising directly or indirectly out of:
4.5.1. the actions, omissions or negligence of the Owner and the Owner’s servants and agents (including any contractor employed by the Owner);
4.5.2. any default or breach by the Owner of these terms & conditions;
4.5.3. misuse by the Owner or any of its contractors of any facilities or services made available by Big Boat Shed or otherwise; and
4.5.4. any other cause other than the sole negligence of Big Boat Shed, its servants and agents.
4.6. The Owner acknowledges that Big Boat Shed may subcontract any of the Services and that Big Boat Shed enters into this agreement on its own
behalf and on behalf of its servants, agents and subcontractors.
4.7. The Owner warrants that no claim or allegation will be made against any servant, agent or subcontractor of Big Boat Shed which imposes or
attempts to impose upon any of them any liability whatsoever in connection with the Services whether or not arising out of negligence or a willful act
or omission on the part of any of them and if any such claim or allegation should nevertheless be made the Owner indemnifies Big Boat Shed
against all consequences thereof.
4.8. Where components or products not manufactured by Big Boat Shed are supplied, Big Boat Shed will:
4.8.1. assign to the Owner its rights under the warranty (if any) applicable to such components or products; and
4.8.2. not be liable for any loss or damage arising from any deficiency or defect in such components or products except to the extent that the
warranty is honoured by the manufacturer.
5. Limitation of liability
If the Competition and Consumer Act (or any amending or similar consumer legislation) applies to this agreement or the Services, or Big Boat Shed cannot
exclude liability whether by these terms and conditions or otherwise, the total liability of Big Boat Shed is limited to the lesser of supplying the service or
goods again or to the payment of the cost of having the service or goods supplied again or to the cost of replacing or repairing the goods.
6. Performance of works by contractors (other than Big Boat Shed)
6.1. The Owner must advise Big Boat Shed in writing of the name and contact details of any contractor authorised to perform works on the Vessel while
it is in storage, and must advise of the nature of the works to be performed. The Owner must ensure contractors provide current copies of all
relevant insurances (including public liability, ship repairers and WorkCover) and relevant environmental licences before commencement of works.
6.2. Big Boat Shed is entitled to impose reasonable conditions on the contractors as to the times and means of access to the Vessel for the purpose of
performing the works.
6.3. The Owner is to ensure the contractor keeps the area surrounding the Vessel in a clean and tidy condition at all times. If the Owner or any of its
contractors fails to leave the site where the Vessel is stored or worked on in a clean and tidy condition each day, the Owner must pay Big Boat
Shed a cleaning charge of $75 for each day the area remains untidy. Big Boat Shed will use reasonable endeavours to notify the Owner and any
contractor of the untidiness.
7. Lien
7.1. The Owner grants Big Boat Shed a lien over the Vessel for all charges and amounts payable to Big Boat Shed including any expenses incurred by
Big Boat Shed pursuant to this clause.
7.2. If any amount payable to Big Boat Shed under this agreement remains unpaid for 60 days after the due date for payment then:
7.2.1. Big Boat Shed can as the Owner’s agent sell the Vessel in such manner and on such terms as Big Boat Shed in its absolute discretion
decides;
7.2.2. Big Boat Shed can deduct from the sale proceeds of the Vessel all unpaid Storage Fees, charges, sale costs and other money payable by
the Owner to Big Boat Shed; and
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7.2.3. any remaining surplus of the sale proceeds, after Big Boat Shed makes any deduction under this clause, will be sent by Big Boat Shed to
the Owner at the Owner’s last known address but if the Owner cannot after reasonable endeavours be located within 90 days of the sale,
the Owner hereby irrevocably authorises Big Boat Shed to donate the surplus sale proceeds to a charity of Big Boat Shed’s choice.
7.3. In consideration of Big Boat Shed storing the Vessel for the Owner and to better secure Big Boat Shed’s rights under this clause, the Owner hereby
irrevocably appoints Big Boat Shed as the Owner’s attorney to exercise the rights available to Big Boat Shed under this clause and agrees to ratify
and confirm all acts and things done by Big Boat Shed in the exercise of those rights and as the Owner’s attorney.
8. PPSA
8.1. The Owner acknowledges that the lien referred to in clause 7 is in addition to and not in substitution for any common law or stationary lien that may
arise out of the provision of the Services by Big Boat Shed.
8.2. The Owner grants to Big Boat Shed a purchase money security interest as defined in the Personal Properties Securities Act 2009 (“PPSA”) in the
Vessel and any proceeds of sale of the Vessel (“PMSI”) to secure the payment of all monies owed by the Owner to Big Boat Shed for any Services
provided by Big Boat Shed. The Owner agrees not to do or allow anything to be done that may result in the PMSI granted to Big Boat Shed ranking
in priority behind any other security interest (as defined in the PPSA). The Owner will take such steps (including obtaining consents, supplying
information, signing forms or executing documents) which may be required by Big Boat Shed to take further or better security under PPSA in
respect of the Vessel and proceeds of sale of the Vessel or to maintain the effectiveness or priority of any security interest under the PPSA.
9. Lien by contractors (other than Big Boat Shed)
9.1. Big Boat Shed is not be obliged to release the Vessel to the Owner where:
9.1.1. Big Boat Shed has received written notification by any contractor or other person that they hold a lien over the Vessel; and
9.1.2. that notification specifies the basis upon which the lien is claimed and the amount of money claimed pursuant to that lien.
9.2. Big Boat Shed will not be obliged to release the Vessel to the Owner until the party claiming the lien consents in writing to Big Boat Shed doing so
or notifies Big Boat Shed that the claim has been satisfied or provides Big Boat Shed with a court order requiring it to do so.
9.3. Big Boat Shed has no duty to ascertain whether there is any legal basis for the claim to the lien and the Owner will have no claim whatsoever
against Big Boat Shed arising out of the retention of the Vessel by Big Boat Shed pursuant to this clause.
9.4. The Owner must pay Big Boat Shed the appropriate storage fee for any period in which Big Boat Shed exercises its powers pursuant to this clause
and Big Boat Shed’s lien pursuant to clause 7 extends over any storage fee charged pursuant to this clause.
10. Notices and Change of Address
10.1. The Owner must keep Big Boat Shed advised of their address and contact details (including details of alternative contacts) and must notify Big Boat
Shed of any change in the Owner’s address or contact details.
10.2. Big Boat Shed may serve any notice by forwarding it by post or email to the address last notified by the Owner and the notice will be deemed to
have been received on the day following the day the notice was sent (notwithstanding the actual day or receipt or any non-receipt of the notice).
11. Interest on overdue amounts
11.1. Without limiting any other right or remedy available to Big Boat Shed, whether under these terms & conditions, at law, in equity or otherwise, the
Owner agrees to pay interest to Big Boat Shed from the due date for payment on all amounts payable to Big Boat Shed pursuant to this agreement
at the rate of 2.5% for each month or part of a month that such fees, charges or money remain unpaid.
11.2. If Big Boat Shed obtains a judgment against the Owner, the Owner must pay interest on the amount of the judgment at the higher of the rate
payable under the judgment or the rate specified under this clause for each month or part of a month that the judgment remains unpaid.
12. Owner to comply
While the Vessel is being stored on the Storage Area, the Owner must:
12.1. comply with these terms & conditions;
12.2. comply with all laws, including workplace health and safety and environmental protection laws;
12.3. comply with all reasonable directions given to the Owner by Big Boat Shed or any of its employees; and
12.4. comply with any guidelines or policies relating to the Storage Area advised in writing by Big Boat Shed from time to time. For the purposes of this
provision, Big Boat Shed may give written notice of any guidelines or policies relating to the storage area by posting the same on the notice board
maintained by Big Boat Shed at the complex and the owner is deemed to have notice of those guidelines or policies.
12.5. ensure that any of its employees, contractors, agents or invitees comply with this provision.
13. Access
13.1. Big Boat Shed reserves the right to impose conditions as to the time and manner of access to the Vessel by the Owner or any person authorised by
the Owner and is not obliged to provide access to the Vessel or to permit its removal from the complex unless Big Boat Shed is satisfied that the
person or persons seeking access to the Vessel are properly authorized by the Owner.
13.2. Big Boat Shed is entitled to refuse access to the Vessel and to prevent its removal in the event that Big Boat Shed exercises its lien pursuant to
clause 7 hereto.
13.3. The Owner must pay Big Boat Shed the applicable Storage Fee for any period in which Big Boat Shed retains possession of the Vessel as a
consequence of the exercise of the lien referred to in clause 7 and that lien extends over any storage fee charged pursuant to this clause.
14. Termination
14.1. Big Boat Shed or the Owner may terminate this agreement at any time by giving the other one month written notice.
14.2. If the Owner breaches these terms & conditions then Big Boat Shed may immediately terminate this agreement by written notice to the Owner. and
in that event the Owner must immediately remove the Vessel from the Storage Area and pay all outstanding Storage Fees, charges and other
money payable to Big Boat Shed. For the purposes of this provision, storage fees will continue to accrue from the date of termination until the date
removal.
14.3. Where this agreement is terminated under clause 14.1, the Owner must comply in like terms with its obligations under clause 14.2.
14.4. Any termination of this agreement by Big Boat Shed under clause 14.2 does not prejudice or affect any rights or remedies available to Big Boat
Shed under this agreement, at law, in equity or otherwise.
15. Miscellaneous
15.1. This agreement is governed by the law of Queensland and the Owner submits to the jurisdiction of the courts of Queensland.
15.2. No failure, delay, relaxation or indulgence on the part of Big Boat Shed in exercising any power or right conferred under these terms will operate as
a waiver of such power or right, nor will any single or partial exercise of any such power or right preclude any other or future exercise thereof, or the
exercise of any power or right under these terms.
15.3. If any provision of these terms is illegal, void, invalid or unenforceable, all other provisions which are capable of separate enforcement are and
continue to be valid and enforceable.
15.4. The Owner acknowledges no representations or oral agreements have been made by Big Boat Shed.
15.5. No variation, modification or waiver of any provision of these terms will be of any effect unless it is confirmed in writing signed by the parties.
15.6. In the event that the person signing this agreement on behalf of the Owner is not the/an owner of the Vessel, the signatory warrants that he/she has
authority to sign and bind the Owner.
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Environmental Authority (Licence) Requirements
As a part of Big Boat Shed's Environmental Authority (Licence) to conduct boat repairs and maintenance, all personnel
conducting activities on the premises must fulfill their responsibilities as outlined below and in the Environmental
Management Manual (Sept 2000). This manual has been developed to assist compliance with the licence issued under the
Environmental Protection Act 1994, and any non-compliance may result in prosecution under this Act. Any breach of these
license requirements will result in an on the spot minimum penalty fine of $1,500 due and payable immediately by the
Owner.
It is the responsibility of the Vessel Owner/authorised representative to ensure all environmental requirements are
adhered to by all employees, crew, and contractors conducting vessel maintenance and construction related
activities on their Vessel.
No personnel are to commence work before approval by Big Boat Shed Management.
All personnel carrying out environmental related activities are to provide copies of current licences and be
approved by Big Boat Shed management to undertake such works prior to the commencement of each new scope
of works.
All contractors are to provide copies of current legal liability cover as ship repairers for loss or damage to the
vessel being worked upon and liabilities to third parties for death/bodily injury/property damage arising out of
such ship repairing activities, including public liability and WorkCover insurances, before commencement of
works.
It is a requirement for each person conducting boat maintenance and construction related activities, to read and understand the
following responsibilities and sign the provided form to agree to these responsibilities.
- Ensure engines and other metal parts with residual oil or grease are stored under cover lifted off the ground (e.g. via a
pallet on a sealed surface)
- Remove debris from boat maintaining, repair and building activities from the ground and ensure activities are undertaken
away from any main drainage paths. Dispose of debris appropriately.
- Ensure no paint is discharged to or spilt on the ground. Any spills are to be cleaned up immediately.
- Ensure paint and other volatile substances are stored in a designated area and in a sealed and upright container.
- Decanting of paint is to be undertaken in a designated area and in a manner to reduce the risk of spills. Any spills are to
be cleaned up immediately.
- Painting equipment is to be cleaned as soon as possible in designated basins connected to sewer.
- All boat maintenance and repairs involving major material removal (including gelcoat removal, anti-fouling stripping, but
not including light sanding of painted surfaces in preparation for re-coating) that is being conducted in the work yard is to
have ground covers underneath the work area.
- Only fibreglassing repair using less than 200kg of resin may be conducted outside the boat shed. A ground cover will be
used during all fibreglass activities to collect fallout. All other fibreglass repair and construction must be undertaken in the
boat shed.
- Any spillage of potential contaminants must be cleaned up properly with absorbent material.
- Ensure all wastes and recycle material are separated and placed in appropriate bins / bunded shed.
- All waste bins are to be covered after receiving waste and not permit rain water from entering.
- Spray painting is to be carried out by EPA licensed operators only.
- Air pressure spray painting in the front work yard to be conducted during periods of less than 20 Knots.
- Airless spray painting of anti-fouling and priming paint on below waterline surface may continue in strong winds when
vessels are screened and / or there is minimal over spray 5m downwind of the vessel.
- Air pressure spraying in the rear work yard to be conducted in periods of less than 10 Knots. Airless spray painting of
anti-fouling and priming paint on below waterline surface may continue in strong winds when vessels are screened
and/or there is minimal over spray 5m downwind (or across the boundary, whichever is closer) of the vessel.
- All solvents and paints to be stored with air tight lids in the appropriately designated storage area when not in use.
- Low styrene emission resins are to be used in all fibreglassing applications unless the particular repair requires special
physical or chemical properties which cannot be achieved using low styrene emission resin.
- All fibreglassing to be conducted inside the boat shed unless less than 200 kg of resin is to be used on the
boat.(minor maintenance)
- Partake in training and sign agreement/contract including the environmental clause.
- Report all environmental incidents to yard/office staff or facility manager.
In the event of toxic spill, the cleanup kit (orange bin outside main office door) should be used. The boat owner will incur a
minimum fine of $150 with no maximum limitation for all toxic spills, irrespective of whether the cleanup kit is used.
NB: for non compliance to any of the above listed requirements a minimum fee of $1,500 will be payable by the Owner.