Terms and Conditions

TERMS & CONDITIONS
1.         Definitions
Customer means the person or entity making the request for WMS to undertake the Work.
Goods means any goods supplied to the Customer and includes the Vessel.
Terms means these terms and conditions of trade.
Vessel means the boat the Customer has requested WMS to do Work on.
WMS means Whakatū Marine Services Limited its successors and assigns or any person acting on behalf of and with the authority of Whakatū Marine Services Limited.
Work means the Work performed and/or Goods and services supplied by WMS to the Customer at the Customer’s request.
2.         Acceptance
2.1      The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms when the Customer makes a request for WMS to undertake any Work.
3.         Application
3.1      Subject to a separate written agreement being entered into between the Customer and WMS, these Terms apply to all arrangements for WMS undertaking Work and the supply of goods and services to the Customer. These Terms may be added to or varied by written agreement between the Customer and WMS.
4.         Quotes and Estimates
4.1      Quotes and estimates are based on the cost at the time the quote or estimate is given. Unless a quote or estimate is expressly accepted, they will automatically lapse after 30 days from the date of issue. Estimates are only that and can vary depending on discovery and further examination of respective Work.
5.         Scope of Works and Authorisation
5.1      The Customer warrants that they are the owner of the Vessel or the owner’s authorised agent, and they have the authority to request WMS to perform the Work. The Customer authorises WMS to move and store the Vessel by whatever means and in whatever circumstances WMS considers necessary and appropriate for the performance of the Work.
5.2      The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
6.           Sub-Contracting of Work
6.1        WMS may license or sub-contract all or any part of its rights or obligations without the Customer’s consent.
7.           Price and Payment
7.1      At WMS sole discretion the Price shall be either as indicated on any invoice provided by WMS to the Customer or the WMS quoted price which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2      WMS reserves the right to change the Price if a variation from the scope of scheduled Work is requested.
7.3      At WMS sole discretion, a non-refundable deposit may be required. The deposit amount of fifty (50) percent of the Price will be required at the time of the request of the Work and shall become immediately due and payable.
7.4     Time for payment for the Work being of the essence, the Price will be payable by the Customer on the date/s determined by WMS, which may be:
(a) before delivery of the Vessel;
(b) by way of instalments/progress payments in accordance with the WMS payment schedule (if applicable);
(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by WMS.

7.5      WMS may invoice ongoing Work on a weekly basis. Payment may be made by, electronic/on-line banking, or by any other method as agreed to between the Customer and WMS.
7.6      Unless otherwise stated the Price and any quotes or estimates include GST. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8.       Default
8.1      If payment is not received by WMS by the due date, then, without prejudice to its other legal remedies, WMS may charge compounding default interest on the overdue monies at a rate of two and a half percent (2.5%) per calendar month (and at WMS sole discretion such interest shall compound monthly as such a rate) after, as well as before any judgement, until all outstanding monies have been paid in full.
8.2      All legal costs (on a Solicitor to client basis) and collection expenses incurred by WMS in collecting or attempting to collect any overdue amount shall be payable by the Customer.
8.3      Without prejudice to any other remedies WMS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms, WMS may suspend or cancel all or any part of the Work that remains unfulfilled. WMS will not be liable to the Customer for any loss or damage the Customer suffers because WMS has exercised its rights under this clause.
8.4      All amounts owing to WMS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to WMS becomes overdue, or in the WMS opinion the Customer will be unable to make a payment when it falls due;
8.5      For the avoidance of doubt, the Vessel which WMS has undertaken any Work on, or provided goods and services in respect of, will not be delivered or otherwise released to the Customer until such time as all outstanding monies in respect of such Work or the provisions of goods and services has been received in clear funds.
9.           Delivery
9.1      Upon completion of the Work a final inspection will be undertaken by WMS staff and the Customer.
9.2      Upon completion of the final inspection delivery will take place, at WMS sole discretion, either at;
(a)    WMS address; or
(b)    the Customers nominated address.
9.3      Where WMS is to provide any Work at the Customers nominated address then the Customer shall be liable for all costs incurred by WMS from the time they depart from, and until they return to, their normal place of Work (including but not limited to mileage and time calculated at WMS standard rates).
9.4      Any time specified for the delivery of Goods is an estimate only. The Customer must take receipt or collection of the Goods whenever they are tendered for delivery. WMS will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. In the event that the Customer is unable to take delivery of any Goods as arranged then WMS shall be entitled to charge a reasonable fee for re-delivery and/or storage.
10.        Risk:
10.1   All risk (including risk of loss or damage to the Vessel) passes to the Customer on delivery of the Vessel by WMS.
10.2   The Customer must insure the Vessel on or before Delivery. If the Vessel is damaged or destroyed following delivery but prior to ownership passing to the Customer, WMS is entitled to receive all insurance proceeds payable for the Vessel. The production of these Terms by WMS is sufficient evidence of WMS rights to receive the insurance proceeds without the need for any person dealing with WMS to make further enquiries.
10.3      Any advice, recommendation, information, assistance or service provided by WMS in relation to the Work is given in good faith, is based on WMS own knowledge and experience and shall be accepted without liability on the part of WMS and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Vessel.
11.        Title
11.1      WMS and the Customer agree that any right, title or interest in the Work shall not pass until:
(a) the Customer has paid WMS all amounts owing to WMS; and
(b) the Customer has met all of its other obligations to WMS.
11.2 It is further agreed that:
(a) until ownership of the Vessel or any Goods supplied to the Customer passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to WMS on request,
(b) the Customer holds the benefit of the Customer’s insurance of the Vessel on trust for WMS and must pay to WMS the proceeds of any insurance in the event of the Vessel being lost, damaged or destroyed.
(c) until ownership of the Goods passes to the Customer in accordance with clause 11.1 the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for WMS and must pay or deliver the proceeds to WMS on demand.
(d) The Customer irrevocably authorises WMS to enter any premises where WMS believes the Goods are kept and recover possession of the Goods.
(e) WMS may recover possession of the Goods in transit whether or not delivery has occurred.
(f)   the Customer shall not charge or grant an encumbrance over the Vessel or otherwise give away any interest in the Vessel while it remains the property of WMS.
(g) WMS may commence proceedings to recover the Price of the Work notwithstanding that ownership of the Vessel has not passed to the Customer.
12. Personal Property Securities Act 1999 (PPSA)
12.1 The Customer acknowledges and agrees that:
(a) these Terms constitute a security agreement for the purposes of the PPSA; and
(b) that by making a request for WMS to do any Work the Customer grants a security interest (by virtue of clause 11 of these Terms) to WMS in all Goods supplied by WMS to the Customer pursuant to that request and any subsequent supply of Goods to the Customer and that such security interest may be a “Purchase Money Security Interest” as defined in the PPSA.
(c) The Customer grants to WMS a security interest in all of the Customers present and after acquired property that WMS has performed Work on or to which Goods or material supplied by WMS have been attached or incorporated.
12.2   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 WMS may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register (PPSR);
(b) indemnify, and upon demand reimburse, WMS for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of WMS; and
(d) immediately advise WMS of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
12.3   WMS and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms.
12.4   The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
12.5   Unless otherwise agreed to in writing by WMS, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6   The Customer shall unconditionally ratify any actions taken by WMS under clauses 12.1 to 12.5.
13.        Security and Charge
13.1   Without prejudice to such other rights WMS may have under these Terms, WMS reserves the right to request from the Customer such security as WMS may from time to time think desirable to secure all sums due to WMS, and may refuse to supply further Work to the Customer until such security is given.
14.        Defects
14.1   The Customer shall inspect the Vessel on delivery and shall within thirty (30) days of delivery (time being of the essence) notify WMS of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford WMS an opportunity to inspect the Vessel within a reasonable time following delivery if the Customer believes the Vessel to be defective in any way. If the Customer shall fail to comply with these provisions the Vessel shall be presumed to be free from any defect or damage. For defective Goods, which WMS has agreed in writing that the Customer is entitled to reject, WMS liability is limited to either (at WMS discretion) replacing the Goods or repairing the Goods at WMS specified location.
14.2   Goods will not be accepted for return other than in accordance with 14.1 above.
15.        Warranties
15.1   Subject to the conditions of warranty set out in clause 15.2 WMS warrants that if any defect in any workmanship of WMS becomes apparent and is reported to WMS within 30 Days of the date of delivery (time being of the essence) then WMS will either (at WMS sole discretion) replace or remedy the workmanship.
15.2   The conditions applicable to the warranty given by clause 15.1 are:
(a)     if WMS is required to repair any defect the repair will be carried out at such place as WMS specifies and the Customer is responsible for shipment of the defective Goods or conveying the Vessel to the place specified;
(b)     The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i)   failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by WMS; or
(iii) any use of any Goods other than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(c)      The warranty shall cease and WMS shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without WMS consent.
(d)     in respect of all claims WMS shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
15.3   For Goods not manufactured by WMS, the warranty shall be the current warranty provided by the manufacturer of the Goods. WMS shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
15.4   In any event WMS under this warranty is subject to the limitation of liability in Clause 16.
16.        Limitation of Liability
16.1   All conditions, guarantees and warranties expressed or implied by statute, common law, equity, trade customer usage or otherwise, are expressly excluded to the maximum extent permitted by law. WMS liability for breach of any condition, guarantee or warranty that cannot be excluded is limited at WMS sole option, to the replacement or repair of the defective or non-complying items of the Work that caused WMS liability.
16.2   Except as provided above, WMS shall not be liable for any loss or damage of any kind whatsoever, arising from undertaking the Work for the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from or in connection with any matter, act, omission, or error by WMS its employees, agents and contractors in respect of the Work undertaken by WMS for the Customer.
16.3   WMS shall not under any circumstances be liable for any claim by the Customer for any loss or damage in respect of the Work unless such claim is made in writing by the Customer within thirty days of the earlier occurring:
(a)     The Work being completed by WMS; or
(b)     The Vessel leaving the care, custody or control of WMS.
16.4   All Work conducted by WMS is to be completed in the Nelson Marina, Nelson Marina Hard Stand, Havelock Marina, Waikawa Marina or other locations suitable or accepted by WMS. Any Vessel requiring remedial, or warranty Work must return the Vessel to the location where the Work was initially completed. Alternative arrangements can be requested from WMS, and if deemed possible, they will be subject to additional costs for working in different locations.
17.        Accuracy of Customers Plans and Measurements
17.1   WMS shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, WMS accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
17.2   In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or Seller places an order based on these measurements and quantities. WMS accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

18.        Intellectual Property
18.1   Where WMS has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of WMS.
18.2   The Customer warrants that all designs, specifications or instructions given to WMS will not cause WMS to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify WMS against any action taken by a third party against WMS in respect of any such infringement.
19.        Consumer Guarantees Act
19.1   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 WMS to the Customer.
20.        Unpaid sellers rights
20.1   Until all moneys owing to WMS are paid WMS shall have:
(a) a lien on the Goods or Vessel;
(b) the right to retain or sell the Goods or Vessel, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of Goods over which a lien is held;
(c) if the buyer is insolvent, a right to stop the Goods in transit after WMS has parted with the possession of the Goods.
20.2   The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Customer.
21.        Personal Guarantee of Company Directors or Trustees
21.1   If the Customer is a Company or a Trust, WMS reserves the right to request from the Director(s) or Trustee(s) of the Customer to provide a personal guarantee of the Customer’s obligations under these Terms, and may refuse to supply further Work to the Customer until such guarantee is given.
21.2   If the Customer is a Company or Trust, the Director(s) or Trustee(s) accepting these Terms, in consideration for WMS agreeing to supply Work and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally guarantee as principal debtors to WMS or the payment of any and all moneys owed by the Customer to WMS and indemnify WMS against non-payment by the Customer. Any personal liability of a signatory under this clause will not exclude the Customer in any way from the liabilities and obligations contained in these Terms. The signatories and the Customer will be jointly and severally liable under these Terms and for payment of all sums.

22.      Cancellation
22.1   Without prejudice to any other remedies’ WMS may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms WMS may suspend or terminate the supply of Work to the client. WMS will not be liable to the Client for any loss or damage the Client suffers because WMS has exercised its rights under this clause.
22.2   WMS may cancel any contract to which these Terms apply or cancel Delivery of any Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice WMS shall repay to the Client any money paid by the Client for the Goods. WMS shall not be liable for any loss or damage whatsoever arising from such cancellation.
22.3   In the event that the Customer cancels Delivery of the Work the Customer shall be liable for any and all loss incurred (whether direct or indirect) by WMS as a direct result of the cancellation (including, but not limited to, any loss of profits).
23.      Privacy Act
23.1   The Customer irrevocably agrees:
(a)    That the personal information provided, obtained and retained by WMS about the Customer will be held and used in respect of the Work completed for the Customer;
(b)    That WMS may provide any personal information to any third party and obtain any information concerning the Customer from any source for any purpose related to the Work provided by WMS;
(c)    To notify WMS of any changes to information provided to WMS.
23.2   If the customer is a natural person, the Customer has the right of access to and correction of any personal information.
24.      Force Majeure
24.1   Neither WMS nor the Customer will be liable to the other for any breach of these Terms by any extraordinary occurrences which are beyond the reasonable control of the party in question.
25.      Entire Agreement
25.1   These Terms constitute the entire agreement and supersede and extinguish all prior agreements and understandings between WMS and the Customer.
26.      Governing Law
26.1   These Terms will be interpreted in accordance with and governed by the laws of New Zealand and the New Zealand Courts will have exclusive jurisdiction over any dispute in relation to the Work.

27.      Health and Safety
27.1   WMS is committed to providing and maintaining a safe and healthy workplace for all staff and visitors to the workplace.
27.2   All visitors must report to WMS staff each time they enter the WMS defined boundary around each Vessel and on their departure. All visitors must undergo a brief health and safety induction before entering any Work area.
27.3   Any Work that a boat owner undertakes while in WMS areas must be approved by WMS.
28.      Subcontractors
28.1   WMS must approve all subcontractors engaged by boat owners.
28.2   All subcontractors working with the Nelson Marina Hardstand area must have completed the relevant health and safety induction.
29.      General
29.1   No waiver: The failure by WMS to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect WMS right to subsequently enforce that provision. If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
29.2   Invoice dispute: The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by WMS nor to withhold payment of any invoice because part of that invoice is in dispute.
29.3   Changes to these Terms: The Customer agrees that WMS may amend these Terms at any time. If WMS makes a change to these Terms, then that change will take effect from the date on which WMS notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for WMS to provide any Work to the Customer.
29.4   Illegality: If any term of these Terms is, or becomes, unenforceable, for any reason, the relevant term is to be considered to be modified to the extent necessary to remedy the unenforceability. If this is not possible, the provision is to be severed from these Terms, without affecting the enforceability of any other term of these Terms.