Terms of Trade – Marine Services
1. General
(a) Upon your receipt of these “Terms of Trade – Marine Services”, you are deemed to have agreed to them. Except where required otherwise by law, these Terms apply to all Marine Services we supply and, together with our Proposal, constitute the entire Agreement—superseding all prior negotiations, discussions, representations, and warranties unless expressly stated.
(b) If you are entering into the Agreement for the purposes of trade or business, you agree that the Consumer Guarantees Act 1993 and sections 9, 12A, and 13 of the Fair Trading Act 1986 do not apply. These exclusions are agreed to be fair and reasonable under section 5D of the Fair Trading Act.
2. Our Obligations
(a) We will carry out the Marine Services with care, skill, and diligence consistent with New Zealand industry standards.
(b) We will aim to complete the services within any timeframe outlined in our Proposal, or otherwise within a reasonable period.
(c) We will notify you promptly of any necessary changes due to circumstances beyond our control.
(d) If the Vessel (or part) is in our possession, we will take reasonable steps to ensure its security and comply with health and safety laws.
(e) If the Vessel remains in your possession, we will comply with your (or your Separate Contractors’) health and safety protocols as communicated.
(f) We will collaborate with any Separate Contractors as reasonably practicable.
(g) We will comply with all relevant laws and consents, and provide any required documentation upon completion.
3. Your Obligations
(a) You agree to pay the Price as outlined in clause 11 without set-off or deduction (unless otherwise agreed in writing).
(b) You will provide clear instructions and any information needed for us to carry out the Marine Services.
(c) You will provide access to and/or delivery of the Vessel prior to service commencement.
(d) If we have possession of the Vessel, you (and any Separate Contractors) will comply with our access and health and safety requirements. Breach of this is treated as a Variation.
(e) You warrant that any documentation/manuals you provide do not infringe intellectual property rights.
(f) Unless you advise us otherwise in writing, you agree that we may use photos or visuals of the Marine Services and Vessel for promotional use.
4. Materials Supplied by You
(a) We are not liable for loss or damage caused by the installation of your supplied Materials unless due to our negligence or intentional act.
(b) You must supply such Materials promptly to avoid delays.
(c) You must ensure Materials are fit for purpose, comply with laws, and do not breach intellectual property rights.
5. Materials
(a) Materials are deemed delivered when collected by you or installed by us in your Vessel. You assume all risk upon delivery.
(b) Ownership of Materials remains with us until full payment is received.
(c) You acknowledge this creates a PPSA security interest. You agree to sign documents needed to perfect our security interest.
(d) You must not grant other security interests in these Materials.
(e) Our security interest continues even if Materials are incorporated into or mixed with parts of the Vessel.
(f) You waive rights under certain PPSA provisions and agree sections 116, 120(2), 121, 125–127, 129, 131, 133, and 134 of the PPSA do not apply.
6. Subcontracting / Assignment
(a) We may subcontract parts of the Marine Services but remain responsible for their delivery.
(b) You may not assign or transfer any rights or obligations without our prior written consent (not unreasonably withheld).
7. Suspension
(a) You may suspend services via written notice. This is treated as a Variation.
(b) If suspension lasts over 1 month, we may treat it as a breach and clause 13 will apply.
8. Insurance
(a) You must hold appropriate insurance for loss/damage to the Vessel during service.
(b) We will hold public liability and equipment insurance for our tools/equipment used in the services.
9. Variations to Marine Services
(a) You may request Variations in writing. If we agree, we’ll provide a revised Price estimate. Upon your approval, the Variation is made, and Price is adjusted.
(b) If a Variation arises under the Agreement or due to unforeseen needs, we’ll consult with you before proceeding and adjust the Price accordingly.
10. Warranties and Maintenance
(a) You are responsible for complying with manufacturer’s manuals provided. We are not liable for failures due to non-compliance.
(b) Manufacturer warranties apply to defective Materials. We are not liable if installation followed manufacturer guidance.
(c) For defective services (not Materials), we will repair or refund at our discretion if notified within 3 months. The Vessel must be returned to the original service location at your cost.
(d) Our liability is limited to the Price. We are not liable for consequential or economic loss.
11. Price and Payment
(a) Unless a fixed Price was agreed in writing, any estimate is not binding.
(b) The Price includes labour (hours × Hourly Rates), Materials, margins, and additional costs.
(c) We may require a deposit before starting work.
(d) We will invoice you upon completion (less any deposit). Payment is due within 7 days or by the 20th of the month following (as per invoice).
(e) If services exceed one month, we may invoice monthly.
(f) You indemnify us for all collection costs and legal fees incurred in recovering unpaid amounts.
12. Disputes Between Us
(a) Both parties agree to resolve disputes in good faith and promptly.
(b) If unresolved within 14 days, disputes may be referred to mediation.
(c) If still unresolved after 30 days of mediation, either party may take legal action.
(d) Nothing prevents either party from seeking urgent court relief or filing in the Disputes Tribunal, District, or High Court.
13. Your Default
(a) If you breach any of your obligations under the Agreement or commit an Insolvent Act and fail to
remedy upon us giving you written notice of the breach or Insolvent Act, then we may at our choice,
suspend the Marine Services or cancel the Agreement.
(b) If we choose to suspend the Marine Services, we will lift such suspension when you have remedied
your breach. Such suspension will not prevent us cancelling the Agreement at any time prior to
lifting the suspension.
(c) If you are in breach of your payment obligations to us you agree to pay us interest on the
outstanding amounts owing to us at the rate of 2.5% per month from the due date until payment
in full.
(d) If we choose to cancel the Agreement and you are in breach of your payment obligations to us then
you agree to allow us access to the Vessel to retake possession of any Materials supplied by us
(which have not been paid for) and our plant and equipment.
(e) Without limiting any of the remedies set out in this clause 13 or otherwise at law, if we cancel the
Agreement, then we may recover from you (to the fullest extent allowable at law) any loss,
including loss of profits, liability, or cost suffered by us as a result.
14. Words used in these Terms of Trade
Agreement is our agreement with you which comprises the Proposal and these Terms of Trade –
Marine.
Hourly Rates means the hourly labour rates we provide you with in our Proposal.
Insolvent Act is an event in which you become bankrupt, or are placed into liquidation or voluntary
administration, or have a receiver, administrator or statutory manager appointed.
Marine Services are the services we carry out for you pursuant to a Proposal including but not
limited to surveying, certification, consultancy, repair, servicing and maintenance of a Vessel, and
includes Materials supplied.
Materials are any materials, products, goods or parts required as part of the Marine Services;
Price is the price for the Marine Services calculated as set out in clause 11 (b). All amounts
comprising the Price exclude GST unless otherwise stated.
Proposal is our proposal, which may be written or verbal, to carry out Marine Services for you.
Separate Contractors are any other service providers or contractors engaged by you who carry out
services on the Vessel.
Variation is any alteration, addition or omission to the Marine Services which may decrease or
increase the Price.
Vessel is your vessel for which the Marine Services are to be carried out on.