Pine Harbour Boat Painters 2014 Limited
Terms and Conditions of Trade
“The Company” means Pine Harbour Boat Painters 2014 Limited.
“The Customer” is the party who instructs the Company to provide the Services to it.
“The Marina” means Pine Harbour Marina.
“Services” means the whole of the work done by the Company for the Customer under these Terms as set out in the Company’s written quotation or estimate or otherwise as agreed in writing by the Company and the Customer.
“Terms” means these terms and conditions of trade between the Company and the Customer.
The parties intend to develop a close working relationship with each other with a view to providing the Customer with high quality marine paint materials and services.
3. SERVICES REQUIRED,PRICE AND PAYMENT TERMS
3.1 Contract: The Terms form the contract between the parties relating to the provision of the Services to the Customer by the Company and are binding immediately upon the Customer instructing the Company to provide the Services.
3.2 Provision of services: The Company will provide the Services to the Customer.
3.3 Price: The price for the Services is the amount set out in the Company’s written quotation or estimate or otherwise as notified in writing by the Company to the Customer. Any estimate given by the Company is based on the Company’s experience with similar matters. Any estimate is given as a guide only and is not a fixed price quotation. The Company will advise the Customer if it is likely that the estimate will be exceeded.
3.4 Quotations and estimates: Each quotation or estimate shall be valid for 30 days from the date of issue. The Company reserves the right, by written notice to the Customer, to alter or withdraw a quotation or estimate before its receipt of the Customer’s acceptance of the quotation or estimate (as applicable).
3.5 Deposit: The Customer will pay a 25% deposit to the Company prior to the commencement of the Services. The deposit will be used by the Company to pay for the materials required to commence the Services and confirm the booking. If the Company pays the deposit and subsequently notifies the Company that it does not require the Services, then provided that the Company has not commenced the Services, the Company will promptly refund the deposit to the Customer in full.
3.6 Balance: Subject to clause 3.8, the Customer will pay the balance outstanding to the Company within seven days of the date on which the Services are accepted by the Company in accordance with clause 3.11. Such amount must be paid without any deductions (whether by way of set off, counterclaim or any other equitable or legal claim).
3.7 Return of vessel to the water: The Customer agrees that the Customer’s vessel will not be returned to the water by the Marina until the Company has notified the Marina that payment for the Services has been made in full. The Customer authorises the Company to notify the Marina that the Customer’s vessel not be returned to the water until the Company has notified the Marina that payment for the Services has been made in full. The Customer will indemnify the Company from and against any losses, damages, liabilities and costs which the Company incurs as a consequence of the Customer or any of its officers, employees, agents or subcontractors instructing the Marina to return the Customer’s vessel to the water before payment for the Services is made to the Company in full.
3.8 Invoice disputes: If the Customer disputes any part of an invoice in good faith, it must immediately give written notice to the Company of the particulars of the dispute and pay the undisputed portion of the invoice on the due date. The parties will seek to resolve the Customer’s dispute as soon as practicable through good faith negotiations. If such negotiations fail to resolve the Customer’s dispute within a reasonable period of time, then either party may (by written notice to the other party) require that the dispute be submitted for mediation by a single mediator nominated by the President for the time being of the Auckland District Law Society. In the event of any submission to mediation:
(a) the mediator will not be acting as an expert or as an arbitrator;
(b) the mediator will determine the procedure and timetable for the mediation; and
(c) the parties will share equally the cost of the mediation.
3.9 Additions or variations: Where the Customer requests any additional work or variation to the original request, the Company is entitled to charge for that extra work or variation of work. The Company will use its best endeavours to notify the Customer in writing the change in price. Any further payment will be paid immediately upon the issue of an invoice by the Company to the Customer.
3.10 Timing: Any delivery date or completion date is an estimate only. The Company shall not be liable for any loss or damage that the Client incurs if the Services are not completed by the relevant delivery date or completion date.
3.11 Acceptance: The parties shall, promptly upon completion of the Services, undertake a joint inspection of the Customer’s vessel. The Customer must notify the Company whether it is satisfied that the Services comply with these Terms upon completion of the inspection. If the Customer fails to notify the Company of the same upon completion of the inspection, then the Customer shall be deemed to have accepted the Services.
4. OWNERSHIP AND RISK
4.1 Ownership and risk of materials: All materials supplied and provided by the Company will remain the property of the Company until payment in full has been made by the Customer. Risk of any loss, damage or deterioration of any materials supplied by the Company pass to the Customer upon the delivery of the materials to the Client.
4.2 Security interest over materials: The Customer acknowledges and agrees that:
(a) these Terms constitute a security agreement for the purposes of the Personal Property Securities Act 1999 (“PPSA”); and
(b) a security interest is taken by the Company in all materials supplied by the Company to the Customer and their proceeds.
4.3 Customer undertakings: The Customer undertakes:
(a) to sign any documents and provide any information which the Company requires to perfect and maintain the perfection of its security interest (including by registration of a financing statement); and
(b) to notify the Company in writing if it intends to change its name or address or if there will be any changes to any of the information required to register a financing statement at least 14 days prior to the change taking effect.
4.4 Contracting out of the PPSA: To the maximum extent permitted by law, the Customer:
(a) waives its right to receive a copy of any verification statement or financing change statement relating to the Security Interest;
(b) waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and, 131 and 132 of the PPSA; and
(c) agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
4.5 Risk of vessel: Any vessel stored by the Company for the Customer shall be entirely at the risk of the Customer. The Customer is solely responsible for ensuring that the vessel is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at the Company’s premises.
5.1 Company’s rights: In the event that the Customer fails to pay any amount payable by it under these Term on the due date for payments, then (without prejudice to any other rights or remedies available to the Company under these Terms or at law) the Company reserves the right to:
(a) charge the Customer interest on that unpaid amount on a daily basis at a rate of 2.5% per month;
(b) charge the Customer for all expenses, costs and disbursements incurred by the Company in recovering the outstanding monies (including legal fees on a full indemnity basis and debt collection agency fees);
(c) suspend or terminate all or any part of the Services.
5.2 Termination: The Company may immediately terminate its provision of the Services if:
(a) any amount payable by the Customer under these Terms is not paid on the due date for payment;
(b) the Customer fails to comply with or perform any of its obligations under these Terms; or
(c) the Customer is adjudicated bankrupt or is insolvent or deemed to be unable to pay its debts within the meaning of section 287 of the Companies Act 1993, or is placed in receivership, administration or liquidation (or any analogous process occurs in respect of the Customer) or ceases to carry on its business.
5.3 Payment for work: Upon termination of the Company’s provision of the Services, the Customer will pay the Company for all work carried out, but not invoiced by the Company, as at the date of termination.
6. COMPANY WARRANTIES
6.1 Warranties: The Company warrants to the Customer that all paint materials and services provided by it will, for a period of 12 months after the completion of the Services:
(a) be free from defects in materials and workmanship;
(b) be fit for the purpose for which the Customer requires the paint materials and services; and
(c) be provided in accordance with the paint specifications supplied to the Customer from time to time, (together, the “Warranties”).
6.2 Warranty exclusions: The Warranties do not apply to any defects in the paint materials and services arising from:
(a) the Customer’s failure to comply with the Company’s maintenance instructions;
(b) weathering and colour changes resulting from exposure to the elements;
(c) the acts or omissions of third parties; or
(d) any defects caused any event or circumstance beyond the Company’s reasonable control.
6.3 Remedies: In the event that any paint materials and services provided by the Company fail to conform with a Warranty, then the Company’s liability is limited to repairing or replacing the defective paint materials or services, and the Company shall have no liability for any other losses, damage, costs or expenses incurred by the Customer or any other person.
6.4 Exclusion of warranties: With the exception of the Warranties, to the maximum extent permitted by law, all representations, warranties or conditions (whether express or implied) in respect of the Services are expressly excluded.
7.1 Indirect/consequential losses: The Company has no liability whatsoever to the Customer or any other person, whether in contract or tort (including negligence) or otherwise, for any indirect or consequential losses or any loss of profits or loss of revenue arising under or in connection with these Terms.
7.2 Limitation on liability: If, for any reason, the Company is liable to the Customer, then the maximum potential liability of the Company for any liability, loss, damage or cost shall not exceed an amount equal to the price paid by the Customer for the Services in relation to which the liability arises.
7.3 Surface corrosion: The Customer acknowledges and agrees that the Company has no liability whatsoever for:
(a) any pre-existing surface corrosion on the Customer’s vessels; or
(b) any surface corrosion on the Customer’s vessels arising following the Company’s performance of the Services provided that such services were carried out in accordance with the relevant paint specifications and the surface preparation requirements set out in International Paint’s technical specifications.
7.4 Contracting out: If, and to the extent that, the Services are being supplied and acquired in trade, then the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply and the parties agree that it is fair and reasonable for the parties to be bound by this clause.
7.5 Force majeure: The Company will not be liable to the Customer for any failure to perform any of its obligations under these Terms where such failure is caused by any event or circumstance beyond the Company’s reasonable control (including any earthquake, flood, fire, storm and adverse weather conditions; any civil disturbance; any legislative, governmental or other prohibitions or restrictions or any strike or lockout).
8. GENERAL TERMS
8.1 Amendments: The Company may amend these Terms at any time by giving written notice to the customer. Any amended Terms shall apply to the provision of Services to the Customer following the date on which the Terms are amended.
8.2 Assignment: The Customer must not assign, transfer, subcontract or otherwise dispose of all or part of its rights or obligations under these Terms without obtaining the Company’s prior written consent. The Company may assign, transfer, subcontract or otherwise dispose of all or part of its rights or obligations under these Terms without obtaining the Customer’s prior written consent.
8.3 Waiver: No waiver by Company of any breach or failure to enforce any provision of these Terms shall in any way affect, limit or waive the Company’s right to subsequently enforce and compel strict compliance with these Terms.
8.4 Entire agreement: These Terms and all written quotations and estimates supersede any previous written agreements between the parties relating to the provision of the Services.
8.5 Governing law: These Terms shall be governed by and construed in accordance with the laws of New Zealand. Any dispute between the parties concerning the construction or effect of these Terms or the rights or obligations of the parties under these Terms shall be dealt with by the laws of New Zealand