Terms and Conditions

1 Definitions

‘Agreement’ means this document.

‘Repairer’ means Whangarei Marine Services and any of its employees, agents or subcontractors.

‘Customer’ means the person, firm, body corporate, association or company who, or on whose behalf, requests the Repairer to perform the Works.

‘Vessel’ means the boat or watercraft described on any quotation, invoice, job sheet or other communication issued by the Repairer to the Customer and it includes the hull, motors, controls, equipment, accessories, dinghies, tenders and their motors.

‘Works’ means all works carried out by the Repairer at the request of the Customer, its employees or agents, including without limitation:

• all repairs, maintenance, improvements or shipwright work;
• the supply of all machinery, parts, materials, equipment, accessories, labour or specialised tools and/or the removal from the Vessel of any machinery, parts, materials, equipment or accessories;
• any operation, movement or storage of the Vessel.

‘Quotation’ means a document provided to the Customer by the Repairer, outlining Goods and/or Services the Repairer might typically use to perform requested Works.

 

2 Jurisdiction

The law of New Zealand shall govern all contracts and the Customer hereby submits to the exclusive jurisdiction of the New Zealand courts.

 

3 Scope of Works and Authorisation

The Customer warrants that it is the owner of the Vessel or the Vessel owner’s agent and that it has the authority to request that the Repairer perform the Works. The Customer authorises the Repairer to move and store the Vessel by whatever means and in whatever circumstances the Repairer considers necessary and appropriate for the performance of the Works.

The Repairer may provide a Quotation for the supply of Goods and/or Services. The Customer acknowledges that quotes are valid for the period stated in the quote. The Repairer reserves the right to modify or withdraw the quote at any point before commencement of the supply of such Goods or Services. Quotes for services are based on estimated time to provide the service.

The Customer acknowledges and authorises that they will be invoiced for Services based on the actual time taken to provide said service, including but not limited to workshop preparation time and travel time.

The Customer acknowledges that any non-stock Goods that are purchased specifically for the Customer are not returnable. The Repairer will advise before such Goods are purchased, and may ask for a deposit or payment in advance which will be immediately due.

The Customer acknowledges that due to the nature of engineering Services actual work required may differ from that quoted. If the Repairer discovers significant variations these will be communicated to the Customer before Works continue, and any existing Quotations may be modified.

The Customer warrants their Vessel is presented to the Repairer in a safe condition for the Works to be performed.

 

4 Payment

The Customer agrees payment is due and payable to the Repairer on receipt of the invoice, unless the Customer has a trade account in which case payment is due on the 20^th day of the month following the date of the invoice.

If the Customer owes any amount on any invoice after the expiration of 30 days from the date of invoice, the Repairer will be entitled to claim interest at a rate of 2.5% compounding per calendar month. The Customer agrees they will also be liable for any reasonable costs incurred by the Repairer in the collection of overdue amounts, including but not limited to solicitors fees and/or debt collection fees.

The Customer agrees that until all outstanding invoices together with any interest, charges or other costs payable have been paid in full, the title of any machinery, parts, materials, equipment or accessories supplied by the Repairer does not pass to the Customer.

 

5 Lien

The Repairer is entitled to a repairer’s lien over the Vessel and/or a general lien over any other property of the Customer that comes into the possession of the Repairer for any reason until all amounts owing by the Customer to the Repairer are paid in full.

 

6 Liability limitation and indemnity

To the extent the Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986 or any similar national legislation apply to this Agreement, then certain conditions and warranties will be implied into this Agreement to the benefit of the Customer, and those conditions and warranties cannot be excluded, restricted or modified by any provision of this Agreement.

However, where the Customer carries on a “business” as defined in the Consumer Guarantees Act 1993 Section 2 and 43, it agrees it is acquiring the services of the Repairer for the purposes of that business and nothing in that Act shall apply.

The Customer agrees that Goods not manufactured by the Repairer are supplied according to the warranty of the manufacturer of those Goods.

The Customer agrees that any such warranties will be void if the Customer does not store, handle, install, use or maintain the goods as per the manufacturers’ instructions.

Except as provided for in this Agreement, the Repairer will not in any circumstances be liable for any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works howsoever caused, including by way of negligence, breach of contract, breach of duty of bailment or wilful act of the Repairer, its employees, agents or sub-contractors.

The Customer will indemnify the Repairer against all claims and demands whatsoever by whomsoever made in respect of any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works howsoever caused, including by way of negligence, breach of contract, breach of duty of bailment or wilful act of the Repairer, its employees, agents or sub-contractors.

The Repairer will store the Vessel in a gated compound but will not be liable for any loss or damage sustained by the Vessel while it is stored at the Repairers’ site.

 

7 Sub-contracting and indemnity

The Repairer is entitled to subcontract on any terms the whole or part of the Works.

 

8 Liability of employees, agents and subcontractors

It is expressly agreed that every exemption from liability, defence, immunity and right under this Agreement will extend to and protect every employee, agent and subcontractor defined as the Repairer in this Agreement and in this regard the Repairer who is a party to this Agreement will be deemed to be acting as agent or trustee on behalf of all Repairers.

 

9 Force Majeure

If the Repairer by reason of any matter beyond its control, including without limitation: any act of God; strike, lock-out or labour disturbance; war or warlike condition; act of terrorism; civil riot; sabotage; explosion; lightning; fire; earthquake, landslide or tidal wave; storm, flood, or other extraordinary weather conditions; quarantine; requirements of government authorities; unavailability or delay in supplies (including electricity, oil or gas), equipment or transport; refusal of or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences; or otherwise is unable to perform any part of its obligations under this Agreement, to the extent and for the period that it is not reasonably able to perform, the Repairer will not be liable to the Customer.

 

10 Time bar

The Repairer will not in any circumstances be liable for any claim for loss, damage or injury (including any economic or consequential loss) arising out of or in any way connected with the performance of the Works, whether involving negligence of the Repairer or otherwise, unless such claim is made in writing within six (6) months of the earliest of the following occurring:

• the Works being completed; or
• the Vessel leaving the care, custody or control of the Repairer.

 

11 Privacy

The Customer authorises the Repairer to record and store customer name, boat name, engine details and contact information. This information is used only for the purpose of providing Goods and Services as outlined in this document.