THE BOAT SUPPLY COMPANY LIMITED – TERMS AND CONDITIONS OF TRADE
In these terms and conditions, unless the context otherwise requires, the following words or phrases have the meanings ascribed to them below:
a. Associated Costs: means shipping, freight, handling, transit and insurance charges, whether in New Zealand or overseas, in relation to the supply of Goods or in respect of any other expenses the Supplier incurs and any costs associated with foreign currency exchange.
b. Customer: means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one, Customer is a reference to each Customer jointly and severally.
c. Goods: means goods supplied by the Supplier to the Customer at the Customer’s request from time to time (and where the context so permits shall include any supply of Services)
d. Price: means the price payable for the Goods as agreed between the Supplier and the Customer in accordance with clause 5 below and shall include all associated costs.
e. Quote: means any quotation or estimate provided by or on behalf of the Supplier.
f. Services: means any services supplied by the Supplier to the Customer (and where the context so permits shall include any supply of Goods).
g. Supplier: means The Boat Supply Company Limited and its successors and assigns or any person acting on behalf of and with the authority of The Boat Supply Company Limited.
2. Acceptance of Terms and Conditions
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts a Quote provided by the Supplier for Goods.
2.2 These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
2.3 The Customer acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, the Supplier has no obligation to supply the Goods.
2.4 The Customer specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier in providing any Goods or variation/s requested by the Customer or its authorised representative.
3.1 In consideration for the Supplier agreeing (at the request of the Customer and the Guarantor) to supply the Goods and/or Services to the Customer, the Guarantor:
a. Unconditionally and irrevocably Guarantees payment of the Price and the performance of the Customer’s obligations pursuant to these Terms and Conditions; and
b. Indemnifies the Supplier against any loss the Supplier may suffer should the obligations imposed on the Customer pursuant to these Terms and Conditions be breached by the Customer.
c. Agrees to sign a Deed of Guarantee and Indemnity in the form attached to these Terms and Conditions at the same time as the Customer accepts these Terms and Conditions.
4. Change in Control
4.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or email address). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
5. Authorised Representative
5.1 The Customer agrees that should the Customer introduce any third party to the Supplier as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods on the Customer’s behalf (such authority to continue until the Customer notifies the Supplier in writing that said person is no longer the Customer’s authorised representative).
5.2 The Customer specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Goods or variation/s requested by the Customer or its authorised representative.
6.1 The Price shall be either:
a. As indicated on any invoice provided by the Supplier to the Customer; or
b. The Supplier’s price as in the Quote (subject to clause 5.2, 5.3 and 5.4) which will be valid for the period stated in the Quote or otherwise for a period of thirty (30) days.
6.2 All Associated Costs are payable by the Customer unless otherwise agreed in writing.
6.3 The Price shall be increased by the amount of any GST.
6.4 The Supplier reserves the right to change the Price:
a. If a variation to the Goods which are to be supplied is requested; or
b. Where additional Goods are required as a result of insufficient or incorrect information being supplied by the Customer; or
c. Where Goods are not or cease to be available and the Supplier supplies alternative Goods and that results in an increase in the costs of supply; or
d. In the event of increases to the Supplier to the cost of labour or materials or where the Price is paid in a currency other than New Zealand dollars, any increase as a consequence of variations in foreign currency rates of exchange and/or or any Associated Costs, which are beyond the Supplier’s control.
7.1 The Customer will pay the Price as follows:
a. A 70% part-payment made to the Supplier at the time that an order is made or Quote confirmed; and
b. 30% payable by the Customer:
i. Where Goods are to be supplied to the Customer in New Zealand, on Delivery of the goods;
ii. Where Goods are to be supplied to the Customer in a location outside of New Zealand, before the Goods are delivered;
iii. The date specified on any invoice or other form as being the date for payment; or
iv. Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier
7.2 Payment will be made in cash, bank cheque, direct credit or any other method agreed to between the Customer and Supplier.
7.3 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised
8. Delivery of the Goods
8.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
a. The Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address; or
b. The Supplier’s nominated carrier takes possession of the Goods at the Supplier’s address; or
c. The Supplier delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
8.2 The cost of Delivery may be included in the Price.
8.3 The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.
8.4 No representation and/or warranties are given by the Supplier in relation to the time or date of Delivery. Any time or date given by the Supplier to the Customer is an estimate only and the Customer must still accept Delivery of the Goods even if later than estimated. The Supplier will not be liable for any loss or damage incurred by the Customer as a result of the Delivery being later than estimated.
9.1 All risk for the goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
9.2 If any of the Goods are damaged or destroyed prior to the Goods passing to the Customer, the Supplier is entitled, to receive all insurance proceeds payable in respect of the Goods.
a. First, in payment of the Price of the Goods that are damaged or destroyed, if unpaid:
b. Second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller whether under the terms and conditions or otherwise
9.3 If the Customer requests the Supplier leave Goods outside the Supplier’s premises for collection or deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
9.4 No representation or warranty is given by the Supplier for the suitability of the Goods. It is the total responsibility of the Customer to ensure that the Goods are fit for the intended purpose which the Customer makes or intends to make of the Goods.
10.1 Ownership of the Goods shall not pass from the Supplier to the Customer until:
a. The Customer has paid the Supplier all amounts owing to the Supplier; and
b. The Customer has met all of its other obligations to the Supplier.
10.2 Even though the Supplier may retain ownership, risk passes to the Customer on Delivery. The Customer will insure (and keep insured) the Goods against all risks of loss and damage.
10.3 The Supplier is entitled to a right of entry to any land or premises owned or occupied by the Customer (including the Supplier’s agents, servants and officers), at all reasonable times, to view and inspect the Goods and take inventories of those Goods, and to inspect and take copies of or extracts from all accounting records and other documents relating in any way to the Goods, and if it is deemed necessary by the Supplier, to repossess those Goods.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 Upon assenting to these Terms and Conditions in Writing (including email or facsimile) the Customer acknowledges and agrees that:
a. These terms and conditions constitute a security agreement for the purposes of the section 36 of the PPSA; and
b. A security interest is taken in all Goods previously supplied by the Supplier to the Customer (if any) and all Goods that will be supplied in the future by the Supplier to the Customer.
11.2 The Customer undertakes to:
a. Sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Supplier may reasonably require to
register a financing statement or financing change statement on the Personal Property Securities Register;
b. Not register a financing change statement or a change demand without the prior written consent of the Supplier.
11.3 The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions
11.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
11.5 Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 10.1 to 10.5.
12.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quote. The Customer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Customer is entitled to reject, the Suppliers liability is limited to replacing the Goods.
12.2 Goods will not be accepted for return for any reason other than those specified in clause 11.1 above.
13.1 To the extent permitted by law, no warranty or representation is given by the Supplier as to the quality, suitability, tolerance to any conditions, merchantability, appearance, safety, durability, fitness of the Goods for any purpose, whether implied by law, trade, custom or otherwise, and any implied warranty, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
14. Limitation of Liability
14.1 To the extent permitted by law, the Supplier will not be liable for any failure to deliver the Goods by any specified date, or any other liability of the Supplier whether in tort (including negligence), contract or otherwise
14.2 Where the Supplier is liable to the Customer then the maximum liability of the Supplier to the Customer howsoever arising shall not exceed the lesser of:
a. The contract Price, or
b. The actual cost to the Supplier for Services or Goods which are the subject of the claim.
14.3 The Supplier shall be under no liability whatsoever to the Customer for:
a. Any loss of profits, or
b. Any consequential, indirect or special loss, or
c. Damage, injury, cost or loss of any kind,
arising directly or indirectly from any breach of the Supplier’s obligations to the Customer, however occurring.
14.4 Any liability of the Supplier to the Customer for any loss or damage shall be reduced proportionately to the extent that any act or omission of the Customer (whether amount to a breach of the terms and conditions or not) has contributed towards any such loss or damage.
15. Consumer Guarantees Act 1993
15.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Supplier to the Customer.
16. Intellectual Property
16.1 Where the Supplier has designed, drawn, created or developed Goods for the Customer, all intellectual property in designs, drawings and documents, proposals, specifications, quotations, sketches, layouts, models, know-how, trade secrets, recipes and any other intellectual property right, shall remain the property of the Supplier.
16.2 The Customer represents and warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design, copyright, trademark or other intellectual property right in the execution of the Customer’s order and the Customer shall indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
16.3 The Customer agrees that the Supplier may (at no cost) use any documents, designs, drawings, or Goods which the Supplier has created for the Customer.
17. Consequences of Default
17.1 If the Customer is in breach of any of the obligations as stated in these terms and conditions then the following shall apply.
1. The Customer agrees to pay interest on all sums outstanding at 24% per annum. Interest shall accrue daily from the date payment becomes due until the date of payment.
2. The Customer shall indemnify the Supplier against all costs, expenses and disbursements incurred by the Supplier in recovering any amounts owed by the Customer (including but not limited to legal costs on a solicitor – client basis and collection agency costs).
3. All payments by the Customer shall be applied first to the reduction of interest and costs due pursuant to paragraphs 17.1.1 and 17.1.2 above and the balance shall then be applied in reduction of the amounts due under clause 5.
4. The Supplier may withhold or cancel the further supply of Goods to the Customer until all amounts owed to the Supplier have been paid.
18.1 The Supplier may cancel these Terms and Conditions or cancel the Delivery of Goods at any time before the Goods are delivered by giving written notice. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 On cancellation, the Supplier shall repay to the Customer, any money paid for the Goods, and the Supplier shall not be liable for any loss or damage arising from such cancellation.
19.1 If any provision of these Terms and Conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These Terms and Conditions may be amended by the Supplier from time to time and shall take effect from the date the Supplier notifies the Customer of such change. The Customer will be taken to have accepted such changes on placement of a further order or acceptance of a Quote.
19.3 These terms are governed by and construed in accordance with the laws of New Zealand and are subject to the jurisdiction of the courts in New Zealand.