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Fuel Management System (SmartFILL)
Fuel Authentication Technologies
Automatic Tank Gauging (SmartDIP)
Outdoor Payment Terminal
Fuel Management Bid Specification
FLUID MANAGEMENT TECHNOLOGY PTY LTD
Office Address: 169 Grange Road, Beverley, South Australia, 5009, Australia
Postal Address: PO Box 1224, Flinders Park, South Australia, 5025, Australia
Email: sales@fluidmt.com
STANDARD TERMS AND CONDITIONS OF SALE
THE FOLLOWING TERMS AND CONDITIONS FORM THE BASIS FOR EVERY CONTRACT CONCLUDED WITH FMT AND THE ACCEPTANCE BY A CUSTOMER OF ANY GOOD SHALL COMPRISE ACCEPTANCE OF THESE TERMS.
In this document (Terms and Conditions):
a) Application means the application (if any) by the Customer to FMT for commercial credit;
b) Australian Consumer Law means the Australian Consumer Law applying to the State and includes the Competition and Consumer Act 2010 (Cth));
c) Business Day means a day other than a Saturday, Sunday or public holiday in the State;
d) Collection Costs means all costs incurred in the recovery of monies owing by the Customer to FMT or in otherwise enforcing FMT's rights against the Customer under the Contract (including legal and debt collection costs on a full indemnity basis) and includes default interest hereunder;
e) Contract means the contract formed between FMT and the Customer by an Order accepted by an Order Acknowledgment;
f) Customer means the person placing the Order with FMT;
g) Credit Limit means the amount approved in writing by FMT;
h) Deposit is defined in Clause 8(a);
i) Domestic Sales means any supply of Goods within the customs territory of Australia;
j) Due Date for Payment means the date specified for payment in Clause 9(d) as applicable to the Customer;
k) Excluded Charges means customs duty, sales tax, freight, insurance or any other taxes, fees, costs or charges levied or incurred because of exportation of the Goods, installation and maintenance costs and any other costs connected with or resulting from these Terms and Conditions or FMT's performance of its obligations hereunder (even if FMT is to pay freight carriage and/or insurance);
l) Export Sales means any supply of Goods outside the customs territory of Australia;
m) FMT means Fluid Management Technology Pty Ltd A.C.N. 156 445 653 (ABN 97 156 445 653);
n) Goods means the supply of New Goods, OEM Goods, and services (including installations) by FMT;
o) Intellectual Property means all industrial and intellectual property rights and confidential information owned by FMT from time to time including but without limiting the generality of the foregoing, rights to, or arising from, patents, designs, trade marks, copyrights, designs, rights to or arising from circuit or semi conductor designs, computer programmes, trade secrets, confidential information, valuable technology, inventions and the right to apply for the grant of any form of industrial or intellectual property rights;
p) New Goods means Goods which are at their original operational level from the manufacturer (including OEM Goods), supplier or FMT but may have been quality control tested or tested prior to sale.
q) OEM Goods means any equipment, product or component acquired from the original equipment manufacturer to either be directly resold to a Customer or incorporated by FMT into one of its Goods;
r) OEM Warranty means the warranty for OEM Goods which shall be passed on by FMT to the Customer for a maximum of 12 months, with such OEM Goods to be returned to base, at the Customer's cost, unless specified otherwise;
s) Order is defined in Clause 5(a);
t) Order Acknowledgment is defined in Clause 5(c);
u) Party means FMT or the Customer as the context requires;
v) Period of Credit means the period approved in writing by FMT;
w) Product Warranty means the warranty for the Goods referred to in Clauses 20, 21 and 22.
x) PPSA means Personal Property Securities Act 2009 (Cth);
y) Scope of Work means the scope of work (if any) as advised by FMT to the Customer;
z) State means South Australia and the Commonwealth of Australia as the context requires;
aa) Territory means the territory and territories in which the Customer carries on business;
bb) Transaction Tax includes any goods and services tax, value added tax and sales tax as well as any identified or new transaction taxes that come into existence after the effective date of these Terms and Conditions, and, unless otherwise stated, an expression used or defined in the Corporations Act 2001(Cth) has the same meaning in the Terms and Conditions.
In this agreement, except where the context otherwise requires:
a) if there is an inconsistency between the documentation provided by FMT in relation to the Goods, these Terms and Conditions and any other relevant documents, these Terms and Conditions will prevail, then the documentation provided by FMT in relation to the Goods, and then any other relevant documentation provided by FMT in relation to the Goods;
b) the singular includes the plural and vice versa, and a gender includes other genders;
c) another grammatical form of a defined word or expression has a corresponding meaning;
d) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
f) a reference to time is to Adelaide, Australia time;
g) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
i) a word or expression defined in the Corporations Act 2001 (Cth) has the meaning given to it in the Corporations Act 2001 (Cth);
j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and
k) headings are for ease of reference only and do not affect interpretation.
3. SALE AND PURCHASE
FMT agrees to sell, and the Customer agrees to purchase, the Goods on the terms of these Terms and Conditions.
4. QUOTATIONS
a) Unless otherwise indicated on the quote, written quotations provided by FMT shall automatically expire 30 days after the date appearing on the quotation unless the Customer receives and accepts the quotation, by issuing an Order, within that period.
b) Prior to the expiration date any quotation is subject to change by FMT at any time upon verbal or written notice to the Customer.
5. ORDERS, ORDER ACKNOWLEDGMENTS AND CONTRACT
a) An order or an offer to purchase Goods (each, an Order) may be made by the Customer in writing or verbally.
b) The Customer acknowledges that the placing of an Order means that the Customer has had proper and adequate notice of these Terms and Conditions and that the Customer has read and accepted (and has had proper and adequate opportunity to do the same) these Terms and Conditions before providing the Order.
c) An Order is accepted when the Customer receives from FMT an acknowledgement of that Order (Order Acknowledgment) in writing or if writing is not received, acknowledgment verbally or delivery, whichever first occurs.
d) When an Order is accepted by an Order Acknowledgment, the Contract will be wholly documented by (in descending order of precedence) any specific term(s) agreed in writing (including the Scope of Work), the Order Acknowledgment and these Terms and Conditions.
e) Previous dealings between FMT and the Customer shall not have any effect on the Contract.
f) Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.
g) A Contract constitutes the entire agreement between FMT and the Customer with respect to the Goods supplied under the Contract, all prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions will in all circumstances prevail over the Customer's terms and conditions of purchase (if any).
a) Unless otherwise agreed in writing, the price charged for the Goods shall be:
i. exclusive of any Transaction Tax; and
ii. as per the price determined by FMT at the date of delivery. Any price indications or price lists issued or released by FMT from time to time are subject to alteration in accordance with the price determined by FMT as at that date of delivery.
b) Where a Transaction Tax applies to any supply made under these Terms and Conditions, FMT may recover from the Customer an additional amount on account of that Transaction Tax.
c) Unless otherwise stated, the price charged for the Goods in a tax invoice issued by FMT to the Customer does not include the Excluded Charges. The Customer acknowledges that the Customer is responsible for the payment of the Excluded Charges.
d) The Customer acknowledges that the costs of any additional inspections or tests other than those normally carried out by FMT in respect of the Goods will be charged to the Customer, and the Customer agrees to pay for the same.
e) FMT may recover Collection Costs from the Customer without notice or provision of any evidence thereof to the Customer and such amounts shall without notice form part of, and be due and payable at the same time and in the same manner as, the price charged for the Goods.
f) Notwithstanding any provision in the Contract, FMT may increase the price of Goods after an Order Acknowledgment and prior to delivery of the Goods if the price increase results from an increase in the price of any inputs which comprise part of the Goods.
g) The Parties acknowledge and agree that any anticipated prices, fees or amounts stated by FMT to the Customer for the Goods during the term of the Contract are estimates only and not quotes (unless explicitly stated otherwise by FMT). Where the Goods relate to the provision of services, FMT's prices are function of time spent to complete the Order. These prices may be affected by factors beyond FMT's control and therefore cannot be ascertained or taken into account at the commencement of the Contract.
a) FMT will make all reasonable efforts to have the Goods delivered to the Customer or its designated agent as agreed between the Parties (or if there is no specific agreement then at FMT's reasonable discretion), but FMT shall not be liable for:
i. any failure to deliver or delay in delivery for any reason; or
ii. any damage or loss due to unloading or packaging; or
iii. damage to property caused upon entering premises to deliver the Goods.
b) Any costs incurred by FMT due to any failure by the Customer to accept the Goods at time of delivery will be reimbursed by the Customer to FMT. Except as required by law or the Terms and Conditions, FMT will be under no obligation to accept Goods returned for any reason.
c) The Customer acknowledges and agrees that time is not of the essence in relation to delivery of the Goods and that it must accept and pay for the Goods even if they are delivered after a requested time.
d) The Customer acknowledges that the Customer must not cancel any Contract:
i. without the prior written consent of FMT; or
ii. on terms that will indemnify FMT for all costs, expenses and losses and damages incurred by FMT as a result of the cancellation of the Contract.
e) The Customer acknowledges that:
i. FMT may in its absolute discretion charge a restocking fee if the Customer cancels an Order after it has been accepted by FMT and an Order Acknowledgement has been issued;
ii. the restocking fee will be a minimum of 10% of the total value of the Order, but subject to Clause 7(e)(iii) may be up to 40% of the total value of the Order;
iii. the restocking fee charged will depend on how far the Order has progressed through FMT's procurement, production and delivery processes.
f) Subject to a Product Warranty claim, the Customer acknowledges that FMT is not under any obligation to accept Goods returned by the Customer.
8. DEPOSIT AND SECURITY
a) FMT may request the Customer for an amount of money or other security (including a credit card reservation) to be held as a deposit (Deposit) for payment for the Goods (or part thereof).
b) The Customer shall forfeit the Deposit to FMT if the Customer for any reason cancels its Order for the Goods.
c) If the Deposit provided by the Customer is a credit card reservation, the Customer unconditionally authorises FMT to debit the Deposit from the Customer's nominated credit card without notice pursuant to this Clause 8.
a) Subject to Clause 15, payment for the Goods must be made in full (without any set off except as made by FMT) and received by FMT by the Due Date for Payment unless otherwise identified by FMT on any statement of account or invoice.
b) Payment is only received by FMT when it receives cash or when the proceeds of other methods of payment are credited and cleared to FMT's bank account.
c) All payments must be made in the currency specified by FMT. Where a currency is not specified in the invoice to the Customer, the default currency for payment will be Australian Dollars ($AUD).
d) All payments will be:
i. For Domestic Sales to Customers whom FMT have approved a credit account under Clause 15 – by cash or electronic funds transfer within 30 days from the end of the month in which the Goods are delivered to the Customer; or
ii. For Domestic Sales to Customers whom FMT have not approved a credit account under Clause 15, and all Export Sales – by electronic funds transfer prior to the Goods being dispatched by FMT, unless otherwise agreed between the parties in writing.
e) If the Customer has provided its credit card details to FMT, the Customer unconditionally authorises FMT to debit the Customer's credit card without notice for the amount of payment of the Goods.
f) The Customer must advise FMT of all payment disputes relating to faulty Goods or Goods "not fit for purpose" in writing by email at sales@fluidmt.com within 7 days from delivery of the Goods, unless otherwise agreed in writing by FMT. Payments disputes after this time will not be accepted by FMT.
10. TITLE AND RELATED MATTERS
a) The legal and equitable title to the Goods will only be transferred from FMT to the Customer when the Customer has met and paid all that is owed to FMT on any account whatsoever.
b) The Customer acknowledges that until the Customer has met and paid all that is owed to FMT on any account whatsoever, the Customer holds the Goods as bailee for FMT and that a fiduciary relationship exists between the Customer and FMT.
c) Until FMT receives full payment of all monies due to it from the Customer, the Customer shall keep the Goods separate and in good condition as fiduciary of FMT, clearly showing FMT's ownership of the Goods and shall keep books recording FMT's ownership of the Goods and the Customer's sale or otherwise of them in accordance with Clauses 10(e) and 10(f). The Customer, if required, shall deliver the Goods up to FMT.
d) If the Customer breaches these Terms and Conditions, in addition to its remedies set forth in Clause 12(b), FMT may take possession of the Goods (at the cost and risk of the Customer) wherever the Goods are located and the Customer agrees that representatives of FMT may enter upon the Customer's premises for that purpose.
e) Despite Clause 10(a), the Customer may sell as fiduciary (but not agent) for FMT the Goods to a third party in the normal course of the Customer's business provided that where the Customer is paid by that third party, the Customer holds the proceeds of sale to the extent of the amount owing by the Customer to FMT at the time of receipt of such proceeds on trust for FMT. The Customer must keep those proceeds separately on trust for FMT and not mix those proceeds with any other monies. Where the Customer has not been paid for the Goods by the third party, the Customer holds the debt owing to it by the third party in respect of the sale of the Goods upon trust for FMT and must assign that debt to FMT at the direction of FMT.
f) If the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as related to the Goods on trust for FMT. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to FMT at the time of the receipt of such proceeds. The Customer must keep that part of the proceeds separate on trust for FMT and not mix those proceeds with any other monies.
g) Notwithstanding the above, the Customer is still required to pay FMT for Goods already delivered and for Goods manufactured or ordered to specification and not yet delivered.
h) If, at any time, FMT wishes or is required to take any further steps to protect its interest in the Goods under this Clause, for example by registering its interest, the Customer agrees to provide any assistance which may be required by FMT for that purpose.
i) Until FMT receives payment in full for the Goods from the Customer, FMT may, in its absolute discretion and without notice, limit the functionality of the Goods (including withdrawing software support, and restricting access to FMT's online portal and other online services, notwithstanding that the Customer may have installed or delivered the Goods to a third party). FMT agrees to provide to the Customer the necessary codes to unlock and restore functionality to the Goods within 5 Business Days of receipt of full payment for the Goods.
11. PPSA
a) This Clause applies to the extent that this Agreement comprises a PPS Security.
b) FMT may register any PPS Security which arises under this Agreement.
c) The Customer must do all things (such as obtaining consents and signing documents), which FMT requires in writing, for the purposes of:
i. ensuring that such PPS Security is enforceable, perfected and otherwise effective under the law (including the PPSA);
ii. ensuring that FMT has first ranking priority (or such other priority required by FMT) in respect of such PPS Security; and
iii. ensuring that FMT is able to exercise its rights in connection with such PPS Security.
d) The Customer must reimburse FMT for, and pay on demand to FMT, FMT's cost of doing anything under this Clause.
e) The rights of FMT under this Clause are in addition to and not substitution for FMT's rights under any law (including the PPSA).
f) This Agreement does not limit FMT's rights under the law (including the PPSA) in any manner.
g) FMT may choose whether to exercise its rights under this Agreement and/ or under any law and the manner of such exercise in its absolute discretion.
h) To the extent that the PPSA applies to this Agreement and to the extent that this Agreement is not in respect of a PPS Security in collateral that is not used predominantly for personal, domestic or household purposes, the following provisions of the PPSA do not apply to this Agreement and for the purposes of s 115 of the PPSA are contracted out of by this Agreement, to the following extent:
i. s 95 PPSA, but only to the extent that it requires FMT to give a notice to the Customer;
ii. s 96 PPSA, but only to the extent that it would permit a person to retain an accession (as defined in the PPSA) in priority to the rights of FMT;
iii. if the Customer has granted an encumbrance over an interest in land in favour of FMT, s 117 PPSA, but only to the extent that it requires FMT to act reasonably and take into account the matters described in s 117(3) PPSA;
iv. if the Customer has granted an encumbrance over an interest in land in favour of FMT, s 118, but only to the extent that it requires FMT to give notice to the Customer;
v. s 121(4) PPSA, but only to the extent that it requires FMT to give notice to the Customer;
vi. s 125 PPSA, but only to the extent that it requires FMT to dispose of or retain collateral;
vii. s 129(2) PPSA, but only to the extent that FMT is required to comply with the procedure therein;
viii. s 129(3) PPSA, but only to the extent that FMT is required to comply with the procedure therein;
ix. s 130 PPSA, but only to the extent that it requires FMT to give notice to the Customer;
x. s 132(3)(d) PPSA, but only to the extent FMT is required to give a statement of account under s 132(1) PPSA;
xi. s 132(4) PPSA, but only to the extent that it requires FMT to give a statement of account;
xii. s 135 PPSA, but only to the extent that it requires FMT to give a notice under that section;
xiii. s 123(4) PPSA, but only to the extent that section limits the right of FMT to enter land or a water source (as defined in the PPSA);
xiv. s 142 PPSA, but only to the extent that a person may redeem collateral secured by a PPS Security in favour of FMT; and
xv. s 143 PPSA, but only to the extent that a person may reinstate a PPS Security against the Owner.
i) For the avoidance of doubt, the provisions of s 120, s 123, s 126, s 128, s 129 and 134(1) of the PPSA apply to this Agreement to the extent they grant rights to FMT:
j) If there is a default by the Customer, FMT may, in its absolute discretion, seize, purchase, take possession of, take apparent possession of, retain, deal with or dispose of any personal property under this Agreement (in addition to, and independent of, any rights of FMT under any law (including the PPSA)). FMT may exercise such powers in any manner (at the Owner's absolute discretion) including by private sale, public sale, lease or licence.
k) The Customer waives its right to receive a verification statement (as defined in the PPSA) for registration events (as defined in the PPSA) for commercial property (as defined in the PPSA) under s 157 PPSA.
l) FMT and Customer agree that the matters which might be required to be disclosed under s 275 (1) PPSA is confidential information of FMT and the Customer will not disclose such confidential information:
i. except with the written consent of FMT;
ii. to perform the Customer's obligations under this Agreement;
iii. for the limited purpose of obtaining advice from an accountant, legal practitioner or similar advisor; or
iv. as otherwise required by law (except s 275(1) PPSA to the extent excluded by this Clause).
m) The Customer must use best endeavours to ensure that s 275(6)(a) PPSA continues to apply in favour of the Owner. The Agreement in this Clause is made solely for the purposes of allowing FMT the benefit of s 275(6)(a) and FMT shall not be liable to pay damages or any other compensation or be subject to injunction if FMT breaches this Clause.
a) The Customer will be in default if:
i. the Customer fails to perform in whole or in part any of its obligations under, or is in breach in whole or in part of any of, the Terms and Conditions;
ii. payment for the Goods has not been received by FMT by the Due Date for Payment;
iii. the Customer being an individual commits an act of bankruptcy, dies or becomes permanently incapacitated or becomes an insolvent under administration;
iv. the Customer being a body corporate becomes insolvent, an externally-administered body corporate or has an application for winding up filed against it;
v. FMT forms the opinion that the Customer's credit worthiness or credit standing alters from that indicated in its Application.
b) If the Customer defaults, in addition to any other rights at law FMT may have, FMT may take one or more of the following actions:
i. treat the whole of the Contract and any other contract with the Customer as repudiated and sue for breach of contract; and/or
ii. refuse to supply any Goods to the Customer (including suspending any further deliveries of Goods to the Customer); and/or
iii. claim the return of any Goods in the Customer's possession where title has not passed to the Customer. (FMT, for that purpose, may without notice enter any premises occupied by the Customer where those Goods are held and remove those Goods); and/or
iv. without notice to the Customer suspend or withdraw any credit facility FMT has provided to the Customer entirely, or exclude one or more Contracts from the benefit of the credit facility, or vary the Period of Credit for one or more Contracts, or vary the Credit Limit; and/or
v. without notice to the Customer, claim the Deposit (if any) and for this purpose the Customer hereby releases and forfeits such Deposit to FMT absolutely; and/or
vi. without notice to the Customer, require the Customer to pay default interest to FMT pursuant to Clause 27; and/or
vii. without notice to the Customer require the immediate payment by the Customer of all monies owing by the Customer to FMT under any Contract or on any account.
c) Termination of a Contract shall not affect rights and remedies accrued or accruing to a Party prior to the termination.
13. RIGHT OF ENTRY
The Customer grants to FMT the right to enter the Customer's premises or site where the Goods are located during Business Hours throughout the term of the Contract for the sole purpose of:
a) carrying out any assessment of, or undertaking a Product Warranty repair or replacement; or
b) recovery of Goods pursuant to Clauses 10(d) or 12(b); or
c) at the request of the Customer.
a) Risk in the Goods (including all risks associated with unloading) passes to the Customer upon delivery or upon title in the Goods passing to the Customer, whichever is the earlier.
b) For the purposes of Clause 14(a). delivery will be deemed to occur on the earlier of:
i. for Domestic Sales – Free In Store (FIS) basis; or
ii. for Export Sales – Ex Works FMT, FCA Australian airport or FOB Australian Airport, (all INCOTERMS 2010) unless otherwise agreed between the Parties; or
iii. the Customer taking possession of the Goods from FMT's premises; or
iv. completion of the loading of the Goods onto the relevant transportation vehicle provided by the Customer.
c) The Customer shall bear any duties and taxes that may be levied by reason of delivery of the Goods in the jurisdiction of the Customer.
15. CREDIT
a) FMT may grant the Customer credit upon the Terms and Conditions on the basis of the Application and such other documents and information as may be required by FMT.
b) If FMT grants the Customer credit by notice in writing, the Customer must pay the purchase price of the Goods in full (without any set off except as made by FMT) within the Period of Credit.
c) The granting of credit does not oblige FMT to extend any particular amount of credit to the Customer, unless specified as the Credit Limit.
d) The Customer agrees:
i. to charge in favour of FMT all beneficial interests (freehold and leasehold) in real estate held now or in the future by it as security for payment of all and any moneys payable by the Customer to FMT;
ii. that if requested by FMT the Customer will execute a mortgage or other instrument of security in form requested by FMT.
e) The Customer acknowledges that FMT may at any stage during the continuance of the credit terms granted under this Clause 15, impose as a condition precedent to the grant of further credit, that the Customer give such security or additional security as FMT requires in its absolute discretion. FMT shall be entitled to withhold supply of Goods or further credit until such security or additional security is obtained.
f) The Customer and, if the Customer is a body corporate, for and on behalf of its directors, hereby authorises and unconditionally grants its consent to FMT obtaining from a credit reporting agency or other person or company, information and/or reports concerning the Customer from time to time during the continuance of any credit terms so as to assist FMT in deciding whether to grant credit or to continue to grant credit to the Customer.
16. INTELLECTUAL PROPERTY – CUSTOMER
a) The Customer warrants to FMT that all documents provided by the Customer are accurate and that FMT is entitled to use all such documents for the purposes of the Contract and that such use does not infringe any third party's intellectual property rights.
b) The Customer indemnifies FMT against all claims and all losses and damages incurred by FMT as a result of documents provided by the Customer to FMT for the purposes of or in the course of the supply of the Goods breaching a third party's intellectual property rights.
c) If the Customer receives any confidential information from FMT the Customer may not use or disclose such information unless it receives the prior written consent of FMT, such information enters the public domain (other than as a result of a breach of this paragraph) or the use or disclosure is required by law.
17. INTELLECTUAL PROPERTY – OWNERSHIP
a) The Customer acknowledges that all of the Intellectual Property used in or in relation to the Goods are the property of FMT and the Customer will take all such steps as are practicable to ensure that the Intellectual Property vests in and remains vested in FMT in the jurisdiction of the Customer.
b) The Customer shall not:
i. take register or assert any ownership or proprietary right in any Intellectual Property (or any concept similar thereto); or
ii. without the prior written consent of FMT permit any trademark, symbol, brand or other intellectual property of the Customer to be combined or associated with any Intellectual Property; or
iii. exploit, apply, copy, record, take advantage of, or otherwise use any Intellectual Property in any way, whether or not for the Customer's own advantage or use, or the advantage or use of another, either during the life of this Contract or upon its termination.
c) Where it is or becomes advisable for an application to be made for the registration of any trade mark in the jurisdiction of the Customer, the Customer will render all reasonable assistance to FMT to facilitate registration. Should it be desirable that any such application should be made in the name of the Customer, application shall be made by the Customer at the expense of the Customer and any registration so obtained shall be promptly assigned at no cost to FMT together with any goodwill associated with the Goods in the Territory gained by the Customer.
d) In any catalogue, price list or similar publication issued by the Customer in which any reference is made to the Goods and to the Intellectual Property relating thereto, there shall be included in legible type a statement informing the reader of the ownership of FMT in the Intellectual Property, the form of which shall be approved by FMT.
e) If the Customer becomes aware of any infringement or potential infringement of the rights of FMT in Intellectual Property in the Territory the Customer will promptly inform FMT and render any assistance FMT reasonably requests to challenge such actual or potential infringement.
f) The Customer agrees to assign to FMT all existing and future intellectual property rights of the Customer that arise in any way as a result from, or in connection with, the use of the Goods by the Customer.
FMT is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of:
a) circumstances outside FMT's control;
b) failure of FMT's machinery; or
c) failure of a supplier to FMT.
19. REPRESENTATIONS AND FITNESS FOR PURPOSE
a) Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
b) The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will clearly specify that purpose or those characteristics in any such Order.
a) FMT shall provide to the Customer a warranty for all Goods against defects in materials and workmanship for a one year period (the Warranty Period) commencing on the sale date to the Customer (the Warranty Commencement Date) of the relevant Goods.
b) The Product Warranty only applies to the Customer who originally purchased the Goods. It is personal and may not be assigned or transferred without the prior written consent of FMT.
c) Subject to Clause 21, FMT (at its option) will replace or repair for the Customer, free of charge, any part or parts, found upon examination by FMT, to be eligible for this Product Warranty. If any Goods or part is replaced or repaired under this Product Warranty, that Goods or part will carry the remainder of the Product Warranty from the Warranty Commencement Date.
d) The Product Warranty is in addition to any consumer guarantees existing available to the Customer at law and the Product Warranty does not exclude such consumer guarantees.
e) All enquiries regarding the Product Warranty may be directed to FMT on +61 8 8240 5585.
21. WARRANTY CLAIM PROCEDURE
a) In order to make a claim under the Product Warranty, the Customer must notify FMT in writing of any defect in the Goods discovered during the Warranty Period as soon as the Customer becomes aware of the alleged defect specifying in reasonable detail the nature of the defect. Such notice may be made by any one or more of the following methods:
i. By Post addressed to: Fluid Management Technology Pty Ltd, PO Box 1224, Beverley, South Australia, 5009, Australia
ii. By Email to: sales@fluidmt.com.
b) Upon FMT verifying the validity and currency of the Product Warranty in respect of the Customer's claim, the Customer must upon request by FMT send the Goods to FMT.
c) The Customer must ensure that the Goods are properly packaged so as to ensure that no damage occurs to the Goods during transit. The Customer is responsible for all posting, shipping, freight and insurance charges in respect of the Goods returned to FMT. Whilst in transit, the Goods remains at the Customer's risk.
d) FMT may, in its absolute discretion reimburse the Customer for the Customer's cost to undertake such repairs to the Goods, provided that the Customer has first provided to FMT a written quote as to the estimated costs of the Customer undertaking such repair, and FMT has approved (in writing) the Customer to proceed with such repairs up to that agreed estimated cost.
e) Upon receiving the Customer's written quote, the Customer acknowledges that FMT shall have sole discretion as to whether FMT engages its own contractors to undertake the required repairs, or if the Customer may undertake such repairs.
f) The Customer agrees that FMT shall have no obligation or liability to reimburse the Customer for the costs of any repairs undertaken by the Customer that have not been agreed in writing with FMT beforehand.
g) FMT reserves the right at its sole discretion to determine whether to replace or repair, free of charge, any part or parts, or the entire Goods.
h) The Customer is responsible for all packaging, posting, shipping, freight and insurance charges in respect of any Goods returned by FMT to the Customer. The Customer agrees to pay such charges upon the same payment terms as apply to FMT's sales of Goods current at the time of the Product Warranty claim. Whilst in transit, the Goods remains at the Customer's risk.
22. GENERAL EXCLUSIONS AND LIMITATIONS OF THE WARRANTY
a) The Product Warranty is limited to replacement or repair of defective parts or defects in workmanship and does not include any labour costs (whether such labour costs are supplied by FMT or the Customer).
b) In the event that no identical parts are available to repair the defective Goods, FMT has the right to replace the Goods with similar Goods of equal age and condition as the defective Goods, or offer the Customer the choice to upgrade the defective Goods. These may incur additional costs to the Customer and the Customer in those circumstances agrees to pay those additional costs upon the same payment terms as apply to FMT's sales of Goods current at the time of the Product Warranty claim.
c) Replacement Goods or parts may include remanufactured or refurbished parts or components. Repaired or replaced Goods will continue be warranted for the remainder of the Product Warranty from the Warranty Commencement Date.
d) The Product Warranty does not cover consumables, including but not limited to batteries and surge protectors.
e) The Warranty will not apply, and FMT will be under no obligation or liability whatsoever if, in the opinion of FMT, the Goods have been:
i. installed and maintained other than in compliance with FMT's product specifications, instructions and directions;
ii. installed or used other than in a manner approved by FMT as suitable for the Goods;
iii. handled in a manner which contravenes any direction, instruction or warning issued by FMT from time to time;
iv. misused, abused, altered or damaged in any way;
v. tampered with, including if any factory applied serial number has been altered or removed from the Goods;
vi. damaged through normal wear and tear including exposure to the elements (on both exposed and unexposed surfaces), exposure to abnormally corrosive conditions, rust, or entry by any insect, vermin or foreign object in the Goods; or
vii. damaged as a result of connection to irregular voltage sources, voltage supply problems, power surges and dips, thunderstorm activity, result of a natural disaster, or acts of God (including fire, flood, lightning).
a) Subject to Clause 19(a), FMT's liability to the Customer (and any party claiming through the Customer against FMT) for any claim for loss or damages (including legal expenses) made in connection with the Contract for contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:
i. if the Customer is a consumer (as defined in the Australian Consumer Law) and:
A. FMT is in breach of a guarantee in the Australian Consumer Law (other than a guarantee in section 51, 52 or 53 of Schedule 2 of the Australian Consumer Law) in connection with the supply of goods (other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption), FMT may (in its absolute discretion):
1. replace those goods;
2. supply equivalent goods;
3. repair those goods;
4. pay the cost of replacing those goods;
5. pay the cost of acquiring equivalent goods; or
6. pay the cost of having those goods repaired, and FMT's liability is limited to that extent;
B. FMT is in breach of the guarantee in the Australian Consumer Law in connection with the supply of services (other than services of a kind ordinarily acquired for personal, domestic or household use or consumption) FMT may (in its absolute discretion):
1. supply those services again; or
2. pay the cost of having those services supplied again, and FMT's liability is limited to that extent.
ii. if FMT is in breach of a Contract (other than a breach referred to in Clause 23(a)(i)), FMT's liability is strictly limited to:
A. for goods, products or materials – the cost of replacement of the defective Goods as soon as reasonably practicable, or the supply of equivalent Goods, or the repair of the defective Goods or the repayment (or allowance) of the invoice price of the defective Goods at the option of FMT;
B. for services – to the provision of the services again or payment of the cost of having the relevant services provided again at the option of FMT;
iii. FMT's liability for breach of a Contract does not extend beyond the defective Goods to any other Goods that are part of an Order or otherwise;
iv. where loss or damage is not covered by Clauses 23(a)(i) or 23(a)(ii), FMT is not liable to the Customer under statute, in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the Goods (except to the extent that FMT's conduct is deliberate, is illegal, is fraudulent or constitutes a criminal offence);
v. subject to Clauses 23(a)(i) and 23(a)(ii), FMT shall not be liable for any indirect, special or consequential loss resulting from or caused in any way by FMT, its officers, employees or agents arising out of or in connection with the supply of the Goods;
vi. indirect, special or consequential loss or damage includes:
A. any loss of income, profit or business;
B. any loss of goodwill or reputation;
C. any loss of value of intellectual property.
b) Any claim under Clause 23(a)(ii) by the Customer in respect of defective Goods and/or damaged Goods must be made in writing within 14 days of the delivery of the Goods.
c) FMT shall not be responsible for any non delivery of the Goods or failure to supply the Goods on the date agreed between FMT and the Customer, and the Customer shall not be entitled to cancel any Order as a result of that non delivery or failure to supply.
d) If any OEM Goods are supplied as part of the Goods, the Customer agrees that the OEM Warranty shall apply and will be limited to FMT's right of redress (if any) against the third party vendor that sold the OEM Goods to FMT.
e) The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from all Contracts.
The Customer indemnifies FMT against any action, claim, proceeding, demand, damages, loss, liability, cost or expense (including Collection Costs and other costs on a solicitor/ client basis) which FMT may suffer or incur arising out of or connected with the Terms and Conditions, any Contract or the Goods (including claims by the Customer and other third parties in the event that FMT restricts the functionality of the Goods under Clause 10(i)).
25. MEASURES
a) Any and all statements made by FMT as to weight, length, quantity or other characteristics of Goods are approximate and FMT may supply Goods on an actual or calculated basis.
b) A calculated basis will be in accordance with the applicable Australian standards.
c) FMT's statements as to weight, length, quantity or other characteristics are final and FMT is not liable for any errors in such statements unless the Customer gives FMT:
i. written notice of any error within 14 days of delivery;
ii. a reasonable opportunity to examine and re-test the Goods before they are used or dealt with.
26. SHORTAGES
a) The Customer must inspect the Goods on or immediately after delivery. In the event that the Customer discovers that all or any portion of the Goods as delivered differs, in quantity or kind, from the description in the invoice or are damaged (other than due to an act or omission of the Customer), the Customer must notify in writing, and make an immediate claim, against FMT. No claim by the Customer for shortages of Goods may be made unless such claim is notified to FMT:
i. for Domestic Sales – within 7 days of delivery; or
ii. for Export Sales – within 7 days of arrival of the Goods at the port of destination.
b) In the event that the Customer does not make a claim in accordance with this Clause, the Goods shall be deemed to be in conformity with the Contract and the Customer shall be deemed to have accepted them. The Customer will be deemed to have absolutely and unconditionally waived such claim.
c) FMT will endeavour to rectify any shortages as soon as practicable after receiving notice but will not suffer any liability from or in respect of such rectification.
27. DEFAULT INTEREST
Any amounts due to FMT and unpaid or any other payments made by FMT in default of payment by the Customer under a Contract shall be regarded as cash advances made on the due date or the date of payment by FMT respectively, repayable on demand and shall, until repayment to FMT, bear interest calculated on the daily balances of such advances at a rate equal to 12% per annum calculated daily and paid on written demand or as instructed by FMT.
a) All disputes or differences which shall at any time hereafter arise between two or more of the Parties (the Disputants) in respect of the construction or effect of this Agreement or the rights, duties and liabilities of the Disputants hereunder or any matter or event connected with or arising out of this Agreement shall be initially referred on notice to each other Party.
b) Each Disputant may give notice to the other that the provisions of this Clause 28 are to apply to any dispute arising between the Disputants as to any matter arising out of or in connection with this Agreement.
c) The notice referred to in Clause 28(b) shall include a summary of the issues in dispute and notification of a time within a period of 10 Business Days beginning 4 Business Days after the service of the notice, and a place in the capital city of the State at which the representatives of the Disputants (which may include a Disputant) are to meet to try to resolve the dispute.
d) The representatives of the Disputants shall meet at the time and place specified in the notice to try to resolve the dispute and shall, if necessary, continue to negotiate for 2 consecutive Business Days unless they otherwise agree to reconvene.
e) If the dispute has not been resolved by the representatives of the Disputants by the end of the meeting then either Party may within 10 Business Days thereafter apply to the Law Society of the State to appoint a neutral adviser to assist in a further attempt by the Parties in good faith to resolve the dispute by structured negotiations. Such person shall act as an expert not as an arbitrator and will be entitled to appoint such technical expert or experts as he considers necessary to assist him in seeking to resolve the matter referred to him.
f) If the Parties fail to appoint a neutral adviser within the 10 Business Days period referred to in Clause 28(e) above or the Parties fail to reach agreement in the structured negotiations within 20 Business Days of the neutral adviser being appointed, then any dispute may be referred to a court of competent jurisdiction. Neither Party shall be deemed to be precluded from taking such interim formal steps as may be considered necessary to protect such party's position while the mediation or other procedure is pending or continuing.
g) Each party to a Dispute must pay its own costs of complying with this Clause 28. The costs of the neutral adviser shall be borne equally by the Parties in dispute.
h) Any information or documents disclosed by a Party under this Clause 28:
i) must be kept confidential; and
i. may only be used to attempt to resolve the dispute.
ii. Clauses 28(g) and 28(h) survive termination of the dispute resolution process.
29. NO PARTNERSHIP, AGENCY OR TRUSTEESHIP
Nothing in this Agreement or in the execution or performance of its terms shall constitute any Party the partner or agent of any other Party and no trusteeship shall be implied as between any of the Parties.
FMT waives a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
If a provision of a Contract would, but for this Clause, be unenforceable:
a) the provision must be read down to the extent necessary to avoid that result;
b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
32. VARIATION
a) FMT may vary the Terms and Conditions without notice to the Customer.
b) If FMT varies the Terms and Conditions, FMT will publish the same on its website at www.fluidmt.com and the Customer agrees to have received proper and adequate notice of the same on and from the date of such publication. Unless the Customer notifies FMT that it objects, FMT will receipt of any Order thereafter as the Customer's acceptance of the new Terms and Conditions.
33. SURVIVAL
Clauses 1, 7, 10,9, 10, 11, 12, 16, 17, 19, 20, 23, 24, 27, 28, 33, 34, 35, 37, 38 and 39 survive the termination or expiry of the Contract.
34. SET OFF
FMT may at any time apply and set off any money that the Customer may owe FMT towards the satisfaction of any sum of money that FMT owes the Customer. The Customer may not set off any amounts.
The Customer must pay to FMT, and indemnify FMT for, all costs and expenses incurred by FMT in connection with the Contract including legal expenses (on a solicitor-client basis), stamp duty and Collection Costs incurred in the recovery of monies owing by the Customer to FMT or in otherwise enforcing FMT's rights against the Customer under the Contract.
a) FMT may assign to any person this document and any Contract.
b) The Customer shall not assign, transfer, encumber or declare trusts in respect of this document or any Contract.
37. APPLICABLE LAW
This document is governed by the law of the State and the courts of that State have non-exclusive jurisdiction in connection with this document.
38. PRIVACY STATEMENT AND CONSENT
FMT collects the Customer's information in order to determine whether to supply Goods to the Customer and in, ordering Goods from FMT, the Customer agrees that FMT may:
a) use the personal information about the Customer which the Customer or others have provided at any time to FMT in order to manage FMT's relationship with the Customer and, where required, to comply with legislative and regulatory requirements; and
b) disclose that information to FMT's related bodies corporate, regulatory and law enforcement bodies, debt collection agencies, any organisation proposing to fund the acquisition of, or acquire, any interest in any obligation the Customer may owe FMT, and to any person to the extent necessary, in FMT's view, to carry out any instruction the Customer give to FMT or to enforce any rights of FMT against the Customer.
The Customer acknowledges that, subject to the provisions of the Privacy Act 1988 (Cth), the Customer may access the information which FMT holds about the Customer at any time by writing to FMT.
Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its officers or its duly authorized lawyer or agent and must be hand delivered or sent by prepaid post or sent by facsimile or electronic mail to the address, facsimile number or electronic mail address (as the case may be) shown at the commencement of this Agreement (or any other address, facsimile number or electronic mail address that a party may notify to the other) and will be deemed sufficiently given:
a) in the case of hand delivery, on the date of delivery; or
b) in the case of prepaid post, 2 Business Days after being sent by prepaid post; or
c) in the case of facsimile, on receipt by the sender of a successful transmission answerback; or
d) in the case of electronic mail, on day of transmission provided that the sender can give evidence of transmission.
40. UNFAIR CONTRACT TERMS
To the extent that these Terms and Conditions are a consumer contract (within the meaning of the Australian Consumer Law) and a standard form contract (within the meaning of the Australian Consumer Law), any term of these Terms and Conditions which would be void because the term is unfair:
a) must be read down to the extent necessary to avoid that result; and
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text:
Island Hotel
The History of the Island Hotel
"In the Beginning" (1859-1865)
The structure that is now the Island Hotel was built sometime between 1859 and 1860. Records indicate that Major John Parsons bought the property in 1859. It is likely that construction was finished the following year.
The Florida pioneers who settled Cedar Key made the building to last. They mixed oyster shell, limestone and sand to pour tabby walls 10 inches thick. Massive 12-inch oak beams were framed in the basement to support the wooden structure. (Their workmanship has withstood the ravages of time for more than 140 years. The building has survived innumerable hurricanes, floods, storms and other disasters. The floors are uneven. The building contracts and expands with the seasons and has all the "aches and pains" of an elderly lady.
Development of Cedar Key had begun in 1859 in anticipation of the prosperity that completion of the Florida Railroad was expected to bring to the port on the Gulf. Major Parsons and his partner and co-owner Francis E. Hale were among businessmen hoping to take advantage of the economic opportunity when they opened Parsons and Hale's General Store.
The outbreak of the Civil War forced an abrupt halt to Cedar Key development. Union troops considered it a strategic port. They invaded the town and burned down almost every building that wasn't needed to quarter troops or store supplies. The fact that Parsons and Hale's General Store survived the war lends credence to the strong probability that it served as a barracks and warehouse for the Yankees. It may have been used by Confederate troops as well during the times they managed to retake Cedar Key, since building owner Major Parsons was commander of a detachment of Confederate volunteers defending the Gulf Coast against Federal gunboats and troops.
"Good Times" (1865-1895)
The war's end meant the beginning of prosperous times for Cedar Key. Parsons and Hale reopened their general store. It became a successful and enduring commercial establishment. Items for sale included furniture, dry goods, staple groceries, naval stores, produce, fuel oil, hardware, building supplies and agricultural implements. Hale and Parsons were also shipping agents and were involved in the fishing and turtle business. Offices of the Customs House and the Cedar Key Post Office were also located in the general store during this period.
In 1867, the great botanist, naturalist, and conservationist John Muir completed his thousand-mile walk from Louisville, Kentucky, to Cedar Key. He contracted malaria and remained in Cedar Key for several weeks while recovering from the illness. Muir's journal contains accounts of life in Cedar Key including a description of a general store, perhaps Parsons and Hale's:
"I stepped into a little store which had a considerable trade in quinine and alligator and rattlesnake skins and inquired about shipping, means of travel. etc."
It is unknown when Parsons and Hale's General Store began taking boarders and selling meals. However, a reference on a real estate map from 1884 notes "restaurant and furnished rooms." It is likely that the downstairs continued to be used for commerce and the upstairs to accommodate guests.
One of those guests may have been a President of the United States. There is an unsubstantiated story that President Grover Cleveland visited Cedar Key upon his return from Cuba sometime during the early 1890s. Cedar Key was then a major port and steamships frequently made runs to and from Havana. The President is reported to have spent the night at Parsons and Hale's.
"Bad Times" (1896-1945)
In 1896, a devastating hurricane struck Cedar Key. Much of the town was destroyed and Parsons and Hale's General Store was severely damaged. It was the beginning of bad luck for the town. A subsequent fire and the collapse of the cedar industry marked a period of economic stagnation and decline that lasted until after World War II.
Francis Hale, one of the two original owners, died in 1910. Four years later Langdon Parsons, a nephew of the other original owner John Parsons, sold the building. After an intermediate owner, it was acquired in 1915 by Simon Feinberg, a businessman with properties in Gainesville, Ocala, Lake Butter, and Dunnellon. It was Feinberg who converted Parsons and Hale's General Store into a hotel. He named it the Bay Hotel. Much of the interior reconstruction including the stairway was done after Feinberg's purchase between 1915 and 1920. A second floor balcony was added around the south and west sides of the hotel. The Hotel was managed by Mr. & Mrs. W L Markham, who moved from the White House Hotel. They remained until 1918, when they moved to manage the Hotel in Summer.
Feinberg died at the hotel on May 11th, 1919, under somewhat mysterious circumstances. He had come to Cedar Key to collect the rent from his manager who had a lease agreement to operate the hotel. These were the days of prohibition. One story is that Feinberg, a religious man, had been most unhappy to discover that his manager was operating a whiskey still in the attic. To placate his boss, the manager had treated Feinberg to a large and sumptuous dinner. Feinberg retired for the night. He never awoke. Harold Naber, one of the later owners, found some of the copper pipe from the still in the Annex roof when he had some work carried out. He says that the pipe work was hidden behind a false roof about 12 inches below the proper roof. He could not recall if the workmen left the pipe in place or removed it — something to be investigated during the forthcoming renovation work.
During the next two and a half decades, the hotel passed through the hands of a number of owners and managers, including J B & Pauline Witt, and later a George T Lewis (for whom the Cedar Key airport is officially named). It was known by a variety of names, including the Cedar Key Hotel. Another owner, a Mr. Fowler, called it Fowlers Wood. A Mrs. Wilda Finlayson had a millinery store downstairs during the '20s. At different times it also housed the post office and the customs house (after the 1896 hurricane).
A Mr. Crittenden managed the Hotel for a while in the '30s, and it was rumored that it may have functioned as a whorehouse during his tenure.
The depression hit Cedar Key. The timber mills were destroyed in the 1896 hurricane. The railroad stopped running to Cedar Key in 1932. The wooden bridges linking the island to the mainland were often washed out and roads were often impassable. Cedar Key was virtually isolated. The hotel was among businesses that suffered hard times. The bank foreclosed on one owner. Another owner may have tried to burn it down. The hotel was hit with a rash of fires, three within one week. Fortunately, the fire department was just across the street. Volunteers managed to douse the flames before much damage was done. Arson was suspected.
Mr. Ray Andrews acquired the Hotel in the late '30s and his brother and sister-in-law, Forest and Nettie Andrews, ran it during the war years. Many people in the town remember the hotel as being the place where they heard about Pearl Harbor.
"Now Eat Those Vegetables" (1946-1973)
Bessie and "Gibby" Gibbs (1949)
When Bessie and Loyal "Gibby" Gibbs arrived in Cedar Key in 1946 they found an ancient, dirty and dilapidated building. Rumors were that it was being used as a whorehouse. Bessie was reluctant to even stay and spent the night in a straight backed chair refusing to sleep on a dirty mattress. However, the friendliness of the people and the charm and possibilities of the hotel soon won her over.
The first thing Gibby and Bessie did was to scrub the building from top to bottom. They renamed the hotel the Island Hotel and then set about establishing a unique style and reputation that was to grow and endure for 27 years.
Gibby was bartender and the hotel bar quickly became a popular gathering place for locals and visitors. In 1948, the Gibbs arranged with artist Helen Tooker to spruce up the bar in return for room and board. She painted the King Neptune painting. She also painted the wall murals upstairs with her daughter, Helen Parramore. Helen selected a nautical theme in keeping with Cedar Key's links with the sea.
Bessie concentrated her efforts on the dining room and quickly established the hotel restaurant as the place to come for seafood. She set high standards. The seafood, vegetables, and other ingredients had to be fresh, often just off the boat or out of the garden. Portions were hearty and generally served with a smile, although on occasion, Bessie was known to chastise those who failed to clean their plate. "After I worked so hard to cook you a nice dinner, I expect you to eat it. NOW EAT THOSE VEGETABLES!"
'Big Buster'
Recipes created by Bessie and her cook Catherine Johnson, known as 'Big Buster' were widely praised. Bessie's famous Heart of Palm Salad remains a popular menu item today.
During Bessie's reign the hotel attracted the famous and powerful. Claude Kirk was among Florida governors and other powerful politicians who made the weekend trek from Tallahassee to talk business at the hotel, enjoy the seafood and strong drinks prepared in the Neptune Bar. Famous names appearing on the register included those of author Pearl Buck, singers Vaughan Monroe and Tennessee Ernie Ford, and actresses Frances Langford and Myrna Loy. Actor Richard Boone, famous for the popular television series Paladin, stayed at the hotel. He would write in the mornings and drink in the evenings, holding court in the Neptune Bar.
In 1950, Hurricane Easy struck Cedar Key, battering the island with winds, rain and high seas for 17 hours. The storm blew the roof off the hotel, filling the upstairs rooms with water. The stains on the King Neptune painting in the bar were caused by water draining from upstairs.
Gibby died in 1962. He was cremated and his ashes were placed behind the bar for a day while Bessie and friends waited for the tide to change so they could scatter Gibby's remains at sea. When a visitor commented that it was rather odd, Bessie is said to have responded, "Why not? That's where he was happiest!"
Bessie continued to operate the Island Hotel and take a very active role in community affairs. She served as a city commissioner, member of the City Planning Board, city judge and Mayor. Bessie helped organize the Cedar Key Arts Festival, which continues to draw thousands of visitors to the island.
In the early 1970s painful arthritis and a spinal disease began to take their toll on Bessie's health. Her disabilities forced her into a wheelchair. Her health failed to improve despite medical treatment.
In 1973, Bessie Gibbs sold the Island Hotel to Charles and Shirley English ending perhaps the most famous era in the history of the building. Bessie continued to live in Cedar Key. She died in a house fire in 1975. Bessie was cremated and, in keeping with her wishes her ashes were taken to sea by her family and friends and spread upon the waters of the Gulf she had so dearly loved. A plaque honoring Bessie's memory is in the garden adjacent to the Historical Society Building, and a memorial marker was placed at the entrance to the Cedar Key Cemetery.
"Margaritaville" (1973-1991)
Charlie and Shirley English operated the hotel until 1978 when they sold it to German-born Harold Nabors. During the late '70s, there was more emphasis on bar operations and less on the restaurant and hotel. Nabors remodeled the bar and opened the annex garden to outdoor entertainment. He sold the hotel to Marcia Rogers in 1980.
Rogers was a New England educator who stumbled upon Cedar Key while searching for a lifestyle change. She found it with the Island Hotel. As Marcia described it, she was looking for "a place in the sun … an oasis out of the fast lane," phrases that were often later quoted by travel writers trying to capture the ambience of the Island Hotel during the '80s.
Florida songwriter and balladeer Jimmy Buffett visited the Island Hotel often during these years. He sometimes would give impromptu concerts in the Neptune Bar. During one arts festival he sat on the balcony and serenaded people passing along Main Street. A reference to Cedar Key and mystery writer John D. McDonald's fictional character Travis McGee is among lyrics from the song 'Incommunicado' on Buffett's 'Coconut Telegraph' album.
Marcia Rogers' biggest success was perhaps the restaurant. Working with Chef Jahn McCumbers, she put the Island Hotel back on the gastronomic map as one of the best places in Cedar Key to eat good fresh seafood. The restaurant drew favorable reviews from food critics. Articles complimenting the restaurant's success appeared in regional, national and international newspapers, magazines and travel guides.
Marcia took an active interest in historical preservation. Working closely with the Cedar Key Historical Society, she lobbied local, state and federal officials to formally recognize the Island Hotel as an important historic landmark. The effort was rewarded when, in1984, the Island Hotel was placed on the National Register of Historic Places.
Marcia's lifestyle occasionally placed her at odds with some of the locals. For example, few Cedar Key citizens could comprehend what it was all about when Marcia invited the Padmasambhava Society to the Island Hotel for what was known as the Full Moon Wakefulness Retreat.
In the late '80s, she closed the Neptune Bar to the public and turned it into a coffee and juice bar. This caused great consternation among some of the locals who considered the bar their personal watering hole. The night the bar closed they buried Marcia in effigy in front of the Post Office, a dubious honor that had been previously awarded only to politicians who lost in the local city commission elections.
"Recent History" (1992-2001)
Tom Sanders and his English wife, Allison, bought the hotel from Rogers in January, 1992. Sanders had first visited the Island Hotel in 1971 when Bessie Gibbs owned it. He had returned many times over the years and it was on a chance visit in 1991 to show the hotel and Cedar Key to Allison that they learned Marcia had put the building up for sale.
The couple lived in Tokyo at the time. Tom was a journalist with a television news agency, and Allison worked for a marketing research firm. They were motivated by a mutual dislike of winters in the United Kingdom–Sanders was due for reassignment to the London office–a desire to own their own business and a love and respect for the venerable Island Hotel.
As Bessie and Gibby Gibbs had done 45 years earlier, Tom and Allison first set about giving the hotel a thorough cleaning. Next order of priority was the reopening of the Neptune Bar. First, the bar itself had to be rebuilt. A long-time patron volunteered his carpentry skills. He said he loved the bar because the 'first naked woman he had ever seen was when he peeked around the bar door as a child and saw the painting of the bare breasted mermaid on Neptune's lap'. The new bar, complete with a Cedar Key cedar top, was formally opened on Valentine's Day 1992.
Old Timers like to tell tales about the days when the Neptune Bar was the scene of confrontations that sometimes turned violent. And there were stories that a patron had once fired a pistol at the King Neptune painting. The painting was removed from behind the bar in February 1993, to enable restoration expert Katrina Blumenstein to begin badly needed restoration and preservation at her Inverness studio. When the painting was taken down several bullet slugs were found embedded in the wall.
Under Tom and Allison's ownership, the Island Hotel again became a center for social and cultural life in the community. Most evenings an eclectic mix of 'regulars' and tourists could be found in the Neptune Bar, swapping stories and occasionally telling tall tales. In the spring and fall, the courtyard was turned into a beer garden with live entertainment, usually Florida folk music. The courtyard was the year-round home for Bernard Basset, the official hotel dog who was also Manager of Guest Relations.
The hotel restaurant regained its reputation for excellence. Chef Jahn McCumbers, who served in the hotel kitchen for 14 years, helped to broaden the menu to include steak, chicken and pork tenderloin. The excellent vegetarian and seafood entrees remained, with locally caught seafood such as stone crab claws and soft shell crabs a specialty.
Another tradition that remains is the romance of the Island Hotel. Many couples return to the Hotel year after year to celebrate their anniversaries with dinner and champagne in the candle lit restaurant. Numerous couples chose the Hotel as the place to exchange vows in1992. In October of that year, Tom and Allison were married at sea aboard the fishing and charter boat Gondola and returned to the Hotel for an evening reception attended by some 200 friends.
While the hotel remained clean and comfortable, it did not offer some of the amenities to be found in modern hotels and motels. It is intentional that the rooms do not contain such distractions as televisions or telephones.
The objective of the owners was to provide a place for guests to get away from the strains and stress of contemporary life and to renew the art of conversation, perhaps to read a good book or play a game of chess or checkers, to drink a Margarita on the hotel balcony while watching the sunset, or have a romantic candle lit dinner in the restaurant.
NOTE: The original author of the above part of this history is Tom Sanders. We wish to thank the Cedar Key Historical Society for assistance and for access to numerous files, news clippings and records. Appreciation was also expressed to numerous Cedar Key old-timers who offered insight and constructive criticism when the author was going astray.
Other contributors to the above, who have added fact instead of speculation, were Mrs. Virginia Tooke Pugh (90), Mrs. Naomi Tooke Dorsett (87), Quitman Hodges (82), Helen Johanneseen (??) and Ernest Parham (93). To each of them we express our gratitude.
Other valuable sources included Jesse Walter and Vivian Dees' fascinating history of Cedar Key. "Off the Beaten Path"; naturalist John Muir's "A Thousand Mile Walk to the Gulf ", and Historical Consultant David Nolan's nomination proposal to place the Island Hotel on the National Register of Historic Places.
Dawn Fisher and Tony Cousins came to Florida from England to investigate the possibility of purchasing a hotel/motel in the St. Petersburg area at the end of January, 1996. It did not take long to realize that the reality did not live up to the dreams that they had in the middle of a cold English winter and so they admitted their mistake to their real-estate broker. The only other business that he had on his books was 'an old hotel up north'. With nothing else to do with the remainder of their time in Florida, they decided to look.
On 31st January we left a warm sunny day in St. Petersberg wearing shorts and tee shirts. We arrived in Cedar Key to thick fog and a very cold day. Despite the weather we immediately felt at home on the island. Everyone we met was incredibly friendly and made us feel welcome.
Finally we made ourselves known to Allison. Tom was away on one of his jaunts to New York. Our immediate impression was one of reservation. The building so obviously needed major structural work and seemed somewhat depressed. However, as we were taken around the building we fell instantly in love with the charm and feeling of warmth that it has. Cedar Key and the Island Hotel had worked its charm once again – we fell in love with both.
After overnighting at the hotel, Room 23, we returned to St Pete's to begin the long road to eventual ownership. The road was long and difficult and many times it seemed that the hurdles being put in front of us would never be surmounted. However, on October21st 1996, we finally completed and the deed was done. Tom and Allison? After a short time in New York they went to Germany with Allison's new job. Later we found out that Tom has Parkinson's disease. Bernard went with them and died later of cancer.
Another chapter in the life of this incredible building had come to a close and another had begun. As one member of the staff said to us when we were introduced – Owners come and go but the hotel goes on – we are but caretaker who have custody for a short time.
Bessie and "Shorty' Hodges
Our immediate ambition? All we wish is that people remember our tenure as fondly as that of Bessie and Gibby and that we avoid the errors of some of our other predecessors. We set out to begin a careful restoration of the property, repairing the damage that time and negligent owners had inflicted. We intend to add central heat and air for the comfort of our guests and remove the existing units from the upstairs windows. Also replacing the jalousie windows with new timber sash windows in the style that was there when Parsons first completed the building. Refurbishment of the annex and the addition of private bathrooms to all the bedrooms completed our initial ambitions.
October 21st 1997, one year on. So far everything is going well, we have installed central heat and air in the main building and upstairs annex. As far as the annex goes, we now have a wonderfully restored conference room and the three bedrooms on the ground floor are fully refurbished and look great. While the rooms are newly completed, they retain the atmosphere of the hotel with colonial furnishings. The original tile floors remain, and televisions and telephones are still not included.
The last project of the year that has been achieved is the landscaping of the courtyard. All the old mulch has been replaced with grass and there is a new patio area.
Next short-term plans are to complete the renovation of our personal quarters in the annex, alter the bar layout to provide new toilet facilities, and redecorate the dining room. We need to repair the screened porch and build a new storeroom for the kitchen. When? We intend to commence these projects in the new year.
Well, it's here, New Year 1998. Tony & I were married at the end of last year on December 2nd 1997. The service was held at the Episcopal Church here in Cedar Key, after which we returned to the hotel for a reception for 150 people. The whole day was wonderful and our lovely hotel and staff did us proud.
Anyway, today is January 12th 1998, we have now started the renovations of our personal quarters and Tony and I are camping out in one of our new rooms.
March 25th, Tony and I are still camping out, as always things do not go as planned but we are getting nearer to completion.
We have now achieved the redecoration of our dining room. Here is an interesting little story.
For those of you with an interest in the history of the hotel and the changes that have been made over the years there is an interesting series of events. In deciding the color scheme we employed the services of an interior designer from Gainesville who came to the hotel armed with loads of paint and material samples. The three of us spent a great deal of time in the dining room mulling over the different combinations. In the end the final choice of colors was made by Dawn. They were a plum and lilac with an off white trim. The ceiling was to be redone in pine. Our interior designer concurred with the selection, but pointed out that they were not the normal colors that the text book would recommend for a restaurant.
That was summer last year, and all that we did in the meantime was to get color samples that we carried with us at all times to help us select the other parts of the picture.
Later in 1997 Miss Bessie's nephew and niece came to visit Cedar Key and the Hotel. We had a very interesting talk with them, during which they told us that they had some photographs to show us. We arranged to sit down on the following Sunday morning. Sunday duly arrived and we all sat in the lobby with a large box of old photographs which were handed round. Most of them were black and white showing the hotel in its former heyday, but eventually a color picture came out of the box and was handed to me. The picture was of Miss Bessie and 'Shorty' Hodges standing on a table in the dining room, with 'Shorty' pretending to look up Miss Bessie's skirt. A picture that shows the sense of fun that abounded in the hotel back in the late 50's. What most caught the attention, however, was not so much the characters, but the decor. The main colors were exactly those that we had recently chosen for the redecoration!!! That was 1) quite a shock and 2) felt by all to be the final blessing on the selection and is why the restaurant is now resplendent in its 50's glory.
We feel justifiably proud of our achievements in the dining room. It is the most visual of all the improvements that we have made to date, but will not be the last. We both hope that you will dine with us during your stay, and sample the profound elegance of the dining room. We look forward to welcoming you.
April 16th, one day before the Arts Festival we finally settled into our newly decorated accommodation in the annex – and it's great. After 18 months of living in a state of dereliction, with rags stuffed in broken windows, clothes stacked in boxes, an old claw foot tub with no enamel (or shower!), we finally had a place to call home. We are both sure that it saved both our sanity and our love of the hotel.
The remainder of the year we spent finishing off lots of little jobs.
The replacement windows for the upstairs of the hotel have now been ordered for delivery over the next few months, so that will be the main project over the winter. It should look much better and should save a great deal of money on heating and cooling. We will save the old window units to build into the garages when we build them. We are now beginning to look at paint colors for painting the outside of the building.
The new windows were finally installed by the end of June this year and made a huge difference to our air conditioning bills and to the noise from outside. On occasions we had guests who were not happy to have shared the enthusiasm of late night drinkers as they left the local watering holes at 2:00 a.m. Since the windows were completed we have had not a single complaint!
We have also totally redecorated 9 of the 10 bedrooms in the main building. We have tried very hard to bring them up to the standards that people expect of a bed and breakfast but without sacrificing the charm and character that is so much part of the hotel.
During the next 6 months we are intending to demolish the old car port at the rear of the hotel and to paint the outside. We have chosen yellow walls with white trim – a combination that we have unashamedly stolen from Don & Nancy Duden's new house on Cedar Key.
Where does the time go? It seems like only yesterday that we last updated the history of the hotel, and when we look back it's been 9 months!! As usual, a lot has happened over that period of time, and a lot hasn't!
For those of you who have visited us over the last months you will note that we have not yet painted the hotel, nor for that matter have we completed the demolition of the carport! We are still intending to do this work, but we have changed some of our priorities.
What we have done is complete the repairs to the wall in the courtyard so that it is ready for painting.
Many other improvements were made during this period. Rooms were repainted, the dining room was completely redecorated and looks much like it did in the 1940's. New fire protection and fire escape stairs were installed, an old wooden garage was dismantled, and the building was completely repainted throughout.
During this same time period, Dawn and Tony married, Tony's son David arrived from England to live here in Florida. Then, on October 29th, 2000, Dawn and Tony became the proud parents of Samantha Hailey Cousins.
It wasn't long before Dawn and Tony began to realize that the demands of this fine old hotel conflicted with the demands of their family. After much soul-searching Dawn and Tony Cousins decided to sell the hotel.
Part VII "The Intermission"
For Old Times' Sake (2002)
This chapter in the history of The Island Hotel begins and ends with the purchase of this grand old hotel by Marylou and Bill Stewart. Marylou was born in Eustis, Florida and lived in Mount Dora until she went away to Texas Women's University. Bill was raised in South Florida from South Miami area down to the Florida Keys.
Marylou, a retired Registered Nurse and Bill, a retired Health Care Executive and Consultant, made a decision to leave the healthcare industry and Georgetown, Texas (where they have lived for two years) to return to Florida. They both desired a change of address and a new challenge. After much discussion and soul searching, Bill retained a broker and began a search throughout Florida for a "bed & breakfast" opportunity in a property that reflected the "old Florida," Marylou and Bill remembered fondly. After looking at dozens of properties throughout Florida, Marylou and Bill found their way to Cedar Key and The Island Hotel. As with previous owners, the connection was immediate and an intense desire to acquire the grand "old lady" was almost overwhelming. It took some months to work through the financing and come to a point where a firm offer was made by the Stewarts and accepted by the Cousins.
On October 16, 2001, Marylou and Bill acquired the hotel and are now onsite and managing it. Both Marylou and Bill have much for which to be thankful. It is especially wonderful to become part of a series of owners who have had a unique relationship wit the hotel. All previous owners have made their mark on the hotel, but Bessie Gibbs certainly was most significant. Bessie made the hotel important and loved it dearly.
What the new owners do now is a subject of much discussion in the wonderful King Neptune Lounge, where local residents of Cedar Key and visitors from all over the country (and world) all have opinions.
Marylou and Bill are now serving lunch on weekends with a new eclectic selection of luncheon specialties not found elsewhere on the island. They have modified and updated the dinner menu and wine list to include more selections and bring back items from past years. Special wine tasting dinner nights, murder mystery nights, a "local resident twosome" dinner nights are now provided mid-week. Entertainments is back in The King Neptune Lounge most weekends with regional musicians playing at volumes that still allow intimate conversation. A "beer garden" in the patio, with quiet music and amateur night performances as well as upgrades to the three annex guest rooms, are next on their "to do" list.
In July 2002, The Island Hotel became a Florida Heritage historical site. A brown and white Trailblazer sign has been posted in front of the hotel at the corner of State Road 24 and 2nd Street with the designation logo. Currently, Florida has 232 such sites throughout Florida designated by the Florida Division of Historical Resources as important historical landmarks.
One thing is sure, The Island Hotel and Restaurant will remain a fine historic property and a wonderful hotel. Previous guests will want to return and new guests will share the memories and stories that is the mystique of this Island Hotel.
On October 29th 2002 Bill and Marylou fired all the staff and boarded up this fine old establishment. They loaded a U-hall and high-tailed it back to Texas. No one knows the reason why, but as when they got here, the talk in the bar was, for a little while, what went wrong?
At the beginning of November 2002, Dawn and Tony Cousins were appointed by the court as Receivers. We were authorized to reopen the Hotel and to get the business running again.
When we let ourselves back into the hotel, which took us all of about 30 seconds since we know the building so well, we found it very dirty but reasonably well stocked.
It took us until just before Christmas to get the place cleaned up and ready to reopen. We took Christmas for ourselves, and reopened the bar and the lodgings on December 27th. We had a very productive time and were welcomed back into the community with open arms. It was the first time in living memory that the Hotel had been closed for more than a few days. The impact in the community was devastating.
To Dawn and I it was like putting on a pair of old shoes. They were already broken in and comfortable. We were lucky enough to keep meeting many of our old staff who all wanted to come back to work for us. Rae, who had been our head housekeeper and was working at Faraway Inn, came back to be our manager. Patsy returned as head housekeeper. Rose had been our chef and returned part time in mid January to help reopen the restaurant. Hank, our 'celebrity' bartender, returned to his old Sunday night session (now moved to Monday). In all, 11 of our old staff have come back to work for us – we feel very honored.
January 2004 . . .
In January 2004, Dawn and Tony Cousins sold the Island Hotel and Restaurant to Andy Bair and his wife Stanley, who are originally from Atlanta. For the last 10 years they have owned and operated Bair Bahamas Guest House on South Andros Island in the Bahamas.
In Stanley's words, "We returned to the States in August, 2003, and began a search for 'that one last quiet, undeveloped spot' that might be still found in Florida. We stumbled onto Cedar Key and the Island Hotel. We immediately knew we had found what we were looking for. The wonderfully quaint island and the manner in which they welcomed us has been a bonus beyond our wildest dreams. We are greeted every day by friendly, smiling faces.
"Our first few weeks were spent giving the hotel a face lift. We painted the downstairs lobby and replaced worn out furniture throughout the hotel. A new bath/shower was added for room #27. The hotel quickly came back to life, and I do believe even the ghosts are smiling. It is as if they had spent the day at a beauty parlor! Our staff is excited about the 'new look' and they have reason to be proud of 'their' hotel again."
"The Intermission" For Old Times' Sake" (2002- Present)
Island Hotel was built sometime between 1859 and 1860.
Island Hotel may have served as a barracks and warehouse for the troops during the Civil War.
In 1896, a devastating hurricane struck Cedar Key.
Simon Feinberg converted Parsons and Hale's General Store into the Island Hotel.
"Big Buster"
Helen Tooker painted the upstairs wall murals with her daughter Helen Parramore.
Helen Tooker painted King Neptune mural in the hotel bar.
Bessie and "Shorty' Hodges
Current Owners Andy & Stanley Bairs
373 2nd Street · Cedar Key, Florida 32625
Phone 352-543-5111 · Toll Free 800-432-4640
Island Email News
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Q: Skip the open file I have the code below that opens each .xlsx file in a folder and calls another sub to it.  When it reaches the file that is open (unavoidable to have it open due to preceding subs), I need this to skip this file and continue.  This was modified from an online source as I don't fully comprehend using paths.  Thanks in advance!
Sub OpenFilesVBA()
    Dim Wb As Workbook
    Dim strFolder As String
    Dim strFil As String

    Application.ScreenUpdating = False

    strFolder = Application.ActiveWorkbook.path
    strFil = Dir(strFolder & "\*.xlsx*")
    Do While strFil <> vbNullString
        Set Wb = Workbooks.Open(strFolder & "\" & strFil)
'===========Run Objective Macro==========================================
        Call PoG_Report_Prep
'========================================================================
        ActiveWorkbook.Save
        Wb.Close False
        strFil = Dir
    Loop
End Sub

A: Presumably the file containing this code is saved as .xlsm (rather than .xlsx), which means the file will be skipped as the code only looks for files saved as .xlsx
If the file is saved as .xlsx you could check whether the file being opened matches the filename of the current file only run the code if the names are different. See example code below. MsgBox statements for testing purposes only, remove these in the final code.
Sub OpenFilesVBA()
    Dim Wb As Workbook
    Dim strFolder As String
    Dim strFil As String
    Dim strActiveFil As String '

    Application.ScreenUpdating = False

    strFolder = Application.ActiveWorkbook.Path
    strActiveFil = Application.ActiveWorkbook.Name
    strFil = Dir(strFolder & "\*.xlsx*")
    Do While strFil <> vbNullString
        MsgBox strFil
        If strFil <> strActiveFil Then
            MsgBox "run" '
            Set Wb = Workbooks.Open(strFolder & "\" & strFil)
'===========Run Objective Macro==========================================
            'Call PoG_Report_Prep
'========================================================================
            ActiveWorkbook.Save
            Wb.Close False
            strFil = Dir
        Else
            MsgBox "not run"
            strFil = Dir
        End If
    Loop
End Sub

A: I ended up doing a save as in a new (non-.xlsx) format and killing the original file. I used .xlsm to keep the original formatting, but .csv worked also. This comes from a report that is downloaded, so getting a new copy of the killed original isn't difficult should I need it.  The first step of my entire module is as follows:
'OF = Original File
Dim strFullName As String, OF As String, CurrentWB As Workbook
Set CurrentWB = ActiveWorkbook
strFullName = CurrentWB.path & "\" & Left(CurrentWB.Name, Len(CurrentWB.Name) - 5) &
".xlsm"

OF = Application.ActiveWorkbook.FullName
ActiveWorkbook.SaveAs Filename:=strFullName,
FileFormat:=xlOpenXMLWorkbookMacroEnabled, CreateBackup:=False

'' Delete Original File
Kill OF

A: This should work. As long as the file that contains this code is saved as *.xlsm
Option Explicit

Sub OpenFilesVBA()
    Dim Wb As Workbook
    Dim strFolder As String
    Dim strFil As String
    Dim fso As Object
    Dim fil As Object
    Dim fldr As Object

    Application.ScreenUpdating = False

    Set fso = CreateObject("Scripting.FileSystemObject")

    Set fldr = fso.GetFolder(Application.ActiveWorkbook.Path)

    For Each fil In fldr.Files
        If LCase(fso.GetExtensionName(fil.Path)) = "xlsx" Then
            Set Wb = Workbooks.Open(fil.Path)
'===========Run Objective Macro==========================================
            Call PoG_Report_Prep
'========================================================================
            ActiveWorkbook.Save
            Wb.Close False
            Set Wb = Nothing
        End If
    Next

    Set fil = Nothing
    Set fldr = Nothing
    Set fso = Nothing

    Application.ScreenUpdating = True

End Sub

A: Check the status of the workbook first:
Set Wb = Workbooks.Open(strFolder & "\" & strFil)
If Not Wb.ReadOnly Then '// workbook is readonly
    PoG_Report_Prep
    Wb.Save
End If

Wb.Close
Set Wb = Nothing

If the ReadOnly status after opening is True then we can probably assume that the workbook was already open elsewhere before you opened it in code.
It's a bit dirty, but would work for your purpose.

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