TERMS OF TRADE ©
Marine engineering services (“Services”) plus products and materials (“Goods”) are supplied and sold in New Zealand by Auckland Marine Systems Limited, registered at Auckland under number 5888108 (“AMS”) to customers (“the Customer”) on the following terms of trade which cancel all previous terms and conditions.
Trading Issues
Any advice supplied to the Customer does not constitute an offer for sale and AMS reserves the right to decline any order for Services or Goods. All AMS’s prices are subject to change without notice and at the sole discretion of AMS. Goods delivered after any price change the price charged shall be the price applicable at the time of the delivery. AMS reserves the right to immediately terminate and without any notice or liability any agreement to supply Services or Goods.
Delivery
AMS shall not be liable in any way for any loss or damage (including consequential loss or damage) arising from delays beyond its control in relation to the supply and delivery of Services or Goods. Risk in Goods shall pass to the Customer when Goods are delivered to the Customer; or to any agent of the Customer, or are in the control of the Customer or when the Customer has title to the Goods; whichever is the earliest event.
Personal Property Securities Act 1999 (“the Act”)
Should the Customer not pay for the Goods upon delivery the Customer grants to AMS a security interest over the Goods (plus its proceeds) and over all its present and after acquired personal property except only for any such property (and proceeds thereof) in or to which the Customer has rights and which has not been supplied by AMS to the Customer.
On request, the Customer must properly execute any documents and do anything else required by to ensure that this security interest constitutes a perfected security interest (as defined by the Act) including:
(a) executing any amendments to these terms as reasonably required by AMS;
(b) executing any new, replacement or additional security document(s); and
(c) providing any information to AMS to enable it to complete a financing statement or a
financing charge statement (as both defined by the Act).
The Customer must not agree to any other person or entity filing a financing statement over the Goods without the prior written consent of AMS and to notify AMS immediately it becomes aware of any other person or entity taking steps to file a financing statement over the Goods. The Customer waives its right to receive a copy of the verification statement confirming registration of the financing statement or a financing change statement relating to the security interest created by these terms.
Title
AMS shall retain full legal and equitable title in all supplied Goods and title to all supplied Goods shall not pass to the Customer and there shall be no right to deal with, onsell or encumber or mortgage Goods until all payments (including delayed or deferred payments on a credit basis) have been paid in full and without deduction or setoff by the Customer to AMS in cash or as otherwise specified by AMS.
AMS reserves the right to enter onto the Customer’s premises or vessel or upon any third parties’ premises without notice where Goods are located to take possession of Goods and AMS shall not be responsible nor liable in any manner whatsoever for any damage caused or any loss that results from such action. The Customer hereby grants AMS and its agents an irrevocable licence to enter upon the applicable premises or vessel and to repossess Goods in the event of any default by the Customer under these terms.
5. Limitation of Liability
If the Customer acquires the Services or Goods for the purposes of business, it agrees and acknowledges that it is not a “consumer” as defined by the Consumer Guarantees Act 1993 (“the Consumer Act”) and that the Services or Goods supplied to it are for the purpose of business; and the Customer further agrees that the guarantees and rights available to it under the Consumer Act including the right to consequential losses are expressly excluded pursuant to section 43(2) of the Consumer Act.
The warranties and any liability implied by the Contract and Commercial Law Act 2017 are also expressly excluded by pursuant to section 197 of that Act.
Where relevant and where any inconsistency exists between the provisions of these conditions and the provisions of the Consumer Act, the provisions of the Consumer Act shall apply.
Except as otherwise provided by this clause AMS shall not be liable for and loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from the Services or Goods.
The Customer shall indemnify AMS against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of AMS and its agents or otherwise, brought by any person in connection with any matter, act, omission, or error by AMS, its agents or employees in connection with the Services.
6.Payment
The Customer shall pay in full and without deduction or deferment on account of any claim, counterclaim, cross demand, or set off, for the Goods or Services immediately upon receipt of the invoice. Time is of the essence. AMS reserves the right to charge interest on overdue accounts at the rate of 2.5% per month on the balance outstanding from the date the invoice was received until payment is made. The right to charge interest is without prejudice to AMS’s other rights in respect of non-payment or late payment.
Payments can be made by electronic bank transfer into AMS’s nominated bank account, EFTPOS, or Credit Card. Please note that Credit Card payments will incur a 2.5% bank fee, which will be automatically added to the invoice.
AMS further reserves the right to recover from the Customer all costs and/or expenses howsoever and whenever incurred in the repossession of the Goods, or instructing a solicitor or debt collection agency to recover any amount overdue for payment. All such costs and expenses shall also bear interest as provided for above.
7. Collection of Information / E-mail messages
The Customer noting the requirements under the Privacy Act 1993 acknowledges, authorises and directs that AMS can seek and obtain from and supply any information concerning the credit or business standing of the Customer to any other trader, merchant, firm organisation, company or other agency or source whatever including any credit agency or association and directs any such person entity to supply and receive and record such information to and from AMS. The Customer consents to receiving commercial electronic messages from AMS.
8. Occupational Health and Safety Standards
The Customer is obliged to assist that all work sites comply with Occupational Health and Safety requirements, regulations and standards and that there is always a proper means of access to the work site.
9. Estimates / Funds up front
Where an estimate is given by AMS for services Goods:
(a) the estimate shall be valid for thirty (30) days from the date of its issue; and
(b) the estimate shall be exclusive of Goods and Services Tax unless specifically stated to the
contrary; and
(c) if for any reason the particular specification upon which the estimate is based is altered then
AMS reserves the right to vary the estimate or subsequently agreed price accordingly.
Where Services are required in addition to the estimate the customer agrees to pay for the additional cost of such Services at the usual charge out rate of AMS. An initial deposit of 10% to 50% may be required to be paid upon acceptance of any estimate or the placing of an order at the complete discretion of AMS.
10. Sea Trials
Any sea trail of the Customer’s vessel by AMS shall be undertaken at the sole risk of the Customer. The Customer shall therefore ensure that it has at all times adequate and proper insurance cover with a reputable and solvent insurer to cover the risk of any damages, claims or liability associated with any sea trial of the Customer’s vessel undertaken by AMS as part of the provision of its Services. The indemnity in clause 5 of these terms is expressly repeated in relation to any sea trial undertaken by AMS and shall extend to any excess incurred by the Customer as the result of any insurance claim.
11. General Terms
(a) In the case of any conflict between these terms or any other document provided by AMS, these conditions shall prevail.
(b) These terms shall not be modified or varied unless expressed in writing and agreed to by AMS and the Customer.
(c) Where AMS fails to enforce any term or fails in any way to exercise its rights under these terms, AMS shall not be deemed to have waived those rights with respect to any breach or subsequent breach of any term/s.
(d) If any of these terms are held to be invalid or unenforceable for whatever reason, the remaining terms shall remain in full force and effect.
(e) The Customer by making an order or offer for the Goods or Services by any medium it does so on the basis that the relevant individual and the Customer has read, understood and agrees to be bound by these terms. Should the Customer have any queries regarding these terms it should seek independent legal advice before making an order/offer.
(f) If an individual is ordering Goods or Services as a shareholder or director of a company or as a trustee of a trust or as an administrator of an estate, then the individual is also personally and severally subject to (along with the company, trust or estate) these Terms notwithstanding what entity is invoiced by AMS. The said individual also warrants that he/she is duly authorised by the Customer to make a binding order on the Customer’s behalf.
(g) AMS shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.