Nautech Marine Limited ("the Seller") supplies all goods and services to every customer ("the Customer") subject to the following Terms and Conditions of Sale which shall prevail despite any indication to the contrary by any person acting or purporting to act on the Seller's behalf.
1.1 Receipt of any order will be deemed to be acceptance by the Customer of these Standard Terms and Conditions notwithstanding anything that may be stated to the contrary on the Customer's order. Orders will only be accepted in writing via post, fax or email.
1.2 An order is accepted by the Seller when communicated to the Customer or any agent, officer, servant or employee of the Customer either orally or in writing. If acceptance has not been communicated as aforesaid acceptance shall be deemed to have been made upon the Seller dispatching the goods and services or advising the Customer that the goods are available for collection.
2.1 Prices are subject to change without notice. All orders will be filled at prices prevailing at the date of delivery of the goods or supply of the services and the Customer is to pay the prices charged.
2.2 If GST or other taxes are payable on goods and services or on any amount under clause 6 the Customer shall pay such tax.
3. TERMS OF PAYMENT
3.1 Payment is due in cash upon delivery of any goods or supply of services unless payment terms have been arranged.
3.2 Payment of all monies will be made without setoff or deduction of any kind.
3.3 The Seller will provide the Customer with invoices by post, fax or email.
4. TRADE TERMS
4.1 Trade terms are available to approved Customers upon application and the approval of an account by the Seller.
4.2 Where goods are sold or services are supplied on trade terms, payment is due no later than the 20th day of the month following the date of the invoice with the exception of any amount for which a claim has been notified in accordance with clause 10.
5.1 The date of delivery shall be the date upon which the goods are available for collection or dispatch from the Seller's premises. Unless otherwise agreed to by the Seller in writing the point of delivery for the goods shall be the Seller's premises.
5.2 In the event that the Seller agrees to arrange delivery or does otherwise arrange delivery to a point beyond the Seller's premises, the Seller shall do so on behalf of the Customer only and shall not be liable in any way whatsoever to the Customer in respect of such delivery. All costs and charges of and incidental to the carriage of goods and insurance shall be borne by the Customer which carriage will be arranged by the Seller as the Customer’s agent.
5.3 The means of delivering the goods shall be at the Seller's discretion. The Seller reserves the right to cancel the delivery of the goods or instalments thereof without prejudice to its rights to recover all sums owing to it in respect of deliveries already made.
5.4 No claim for any discrepancy in orders will be admitted unless it is made in writing to the Seller within 7 days of the date of delivery.
5.5 The Seller shall be entitled without notice to withhold deliveries of goods ordered by the Customer where the sums which are then due and owing to the Seller by the Customer have not been paid in full. If the Seller elects not to deliver the goods until all sums due are paid in full, the delivery date for all outstanding orders shall be the later of the delivery date specified in any outstanding orders and the date being 7 days from the date of payment by the Customer of all sums due to the Seller.
5.6 The Seller shall be entitled to cancel or suspend delivery of goods or supply of services in the event of any delay or non-performance due directly or indirectly to wars, strikes, lock-outs, delays or defaults of manufacturers or suppliers, act of God, or any other cause (whether similar or dissimilar) beyond the reasonable control of the Seller. The Customer shall have no claims whatsoever against the Seller in consequence of any such cancellation or suspension.
6.1 Any failure on the part of the Customer to make payment on due date shall constitute a breach of these Standard Terms and Conditions and the Customer shall make payment of all sums owing to the Seller immediately whether then due or not. The Customer shall be liable to compensate the Seller by immediately making payment as liquidated damages (in addition to the amounts due) of interest on the amount due from the due date until the date of payment at a rate equal to 18% per annum.
6.2 The Customer shall pay all costs incurred by the Seller, including costs on a solicitor/client basis and debt collectors' costs, incurred in the recovery or attempted recovery of outstanding monies and the enforcement of these Standard Terms and Conditions.
7. OWNERSHIP AND RISK
7.1 Risk in the goods and services supplied by the Seller to the Customer shall pass when the goods are delivered to the Customer or his agent pursuant to clause 5.1 but subject to clause 7.2 herein.
7.2 The property in the goods and services shall not pass to the Customer until payment is made in full for them and for all other goods and services supplied by the Seller to the Customer and all other debts and liabilities owed by the Customer to the Seller at the date of delivery of the goods and services have been received by the Seller. The Seller may appropriate all payments received from the Customer as the Seller determines.
7.3 If payment is overdue in whole or in part with respect to any of the goods and services the Seller may (without prejudice to any of its other rights) recover and retake possession of the goods or the proceeds of sale or any of them and may enter upon the Customer's premises or any other place where the goods are stored by its servants or agents for that purpose without being liable for any damage thereby caused. The Customer grants to the Seller an irrevocable right and authority to so recover, re-enter and retake possession.
7.4 The security interest in the goods created pursuant to clause 7.2 extends to the proceeds of any dealing with the goods in accordance with the Personal Property Securities Act (“the PPSA”).
7.5 Pursuant to section 109 of the PPSA the Seller may take possession of and sell the goods if the Customer is in default in payment or the goods are “at risk”. In accordance with section 109 of the PPSA goods are “at risk” if the Seller has reasonable grounds to believe that the goods have been or will be destroyed, damaged, endangered, disassembled, removed, concealed or otherwise disposed of contrary to the provisions of these Terms and Conditions.
7.6 The Seller reserves the right to dispose of the goods in whatever manner it deems fit, failing payment in full for all the goods supplied to the Customer being received in accordance with these terms. The Seller shall not be liable for any damage, injury or loss sustained in respect of any recovery or forced sale of the goods including any sale at below market price.
7.7 The Customer acknowledges that the Seller may register (and as appropriate register a renewal of) the security interest created by these Terms and Conditions in the Personal Property Securities Register established under the PPSA.
7.8 The Customer waves any rights it may have now or in the future to receive a copy of any verification statement or other confirmation related to the registration of the security interest.
7.9 The Customer will keep the goods insured against fire, accident, theft and other risks in the names of the Seller and the Customer for their respective rights and interests.
7.10 Until payment is made in full by the Customer for the goods and services the Customer holds the goods on trust for and identifiable as the property of the Seller and will keep separate records in respect of the goods. If any of the goods are sold or otherwise disposed of by the Customer before property and title passes in accordance with these terms then the Customer shall hold the proceeds of such sale or disposition separately upon trust for the Seller and shall account to the Seller for such proceeds.
8.1 Credits sought for returned goods are at the Seller's exclusive discretion and the goods must be: (a) returned within seven days of delivery; (b) returned free into the Seller's store with all transportation charges, insurance, taxes, duties and additional charges being met by the Customer; (c) in as new condition in the Seller's original containers and packaging, unsoiled and undamaged; (d) accompanied by the number and date of the supplying invoice.
9. WARRANTIES AND CONDITIONS
9.1 Where this agreement would otherwise be subject to the provisions of the Consumer Guarantees Act 1993, the Customer agrees that the goods and services are supplied to the Customer for business purposes in terms of sections 2 and 43 of the Consumer Guarantees Act 1993 and that the provisions of that Act do not apply to the supply to the Customer.
9.2 The Customer is responsible for completing all warranty registration details or ensuring that any purchaser from the Customer completes such details.
10.1 Goods returned for defect or fault must be returned free into the Seller's store with all transportation charges, insurance, taxes, duties and additional charges being met by the Customer. No claim by the Customer shall be effective unless made in writing and received by the Seller within 14 days after the date of delivery of the goods to the Customer.
10.2 If claims are not received in accordance with the requirements specified in sub-clause 10.1 the Customer shall be conclusively deemed to have accepted the goods and the Seller shall not incur any subsequent liability whatsoever in relation to the goods.
10.3 Any claims made for promotional discounts, settlement discounts, cooperative advertising allowances, coupon & scan-back discounts, ranging & listing fees, terms of trade discounts and any other rebates or discounts from the invoiced purchase price must be made by the Customer within 1 month of the date of the relevant invoice. In the event of the Customer failing to make any such claim on the Seller within such time period any right held by the Customer for payment of the claim is lost.
11. LIMITATION OF LIABILITY
11.1 The Seller's liability whether in contract or in tort for any loss arising directly or indirectly from any defect in or non-compliance with a guarantee in respect of the goods or services supplied is limited to repair or replacement or resupply of such defective or non-complying goods or services or to the purchase price of the goods or services in respect of which such liability arises whichever is the lesser. The Seller shall have no further liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever and howsoever arising.
11.2 The Seller shall not be responsible for any damage whatsoever caused, whether to the goods supplied or as a result of the supply of such goods, where the goods have been used or concerned in a way in which they are not specifically intended or the goods are improperly stored.
12. CHANGE OF OWNERSHIP OR CONTROL OF CUSTOMER
12.1 The Customer agrees that it will notify the Seller of any changes in the partnership or change in its ownership or effective management or control or of any material change in the nature of the Customer's business no later than 14 days prior any such proposed change coming into effect.
Terms used herein are defined as follows: "the Seller" means Nautech Marine Limited, a duly incorporated company and its successors or assigns. "the Seller's premises" means the place of business of the Seller or any other location from which the goods are dispatched to the Customer. "the Customer" means any person, partnership, firm, company or other entity buying goods from the Seller and their executors, administrators, successors or assigns. "goods" means any product, equipment, part or item whether complete or incomplete which the Seller is in the business of supplying together with all charges for work done, hire charges, fees, service charges, repairs, materials and insurance charges associated with supply, manufacture, construction and repair of the goods supplied to the Customer and all the terms and conditions of this agreement shall relate to any charges imposed by the Seller on the Customer. "price" means the price payable to the Seller for the goods excluding carriage, packing, insurance and Goods and Services Tax. "order" means a written request for goods to the Seller from the Customer or any agent, officer, servant or employee of the Customer communicated by post, fax or email. “services” means a contract for, or in relation to, the performance of work whether with or without the supply of goods.