TERMS AND CONDITIONS
Definitions and Interpretation:
Means the person or entity making the request for SM to undertake the Work.
Means Sounds Marine Services at Waikawa Marina Picton Marlborough.
Means the work and/or the goods and services that the Customer has requested SM to undertake on behalf o f the ustomer including (but not limted to) to the Vessel.
Means the boat as named and described below.
Subject to a separate written agreement to the contrary being entered into between the Customer and SMS, these terms and conditions apply to all arrangements for SMS undertaking the Work and the supply of goods and services to the Customer. These terms and conditions may be added to or varied by written agreement between the Customer and SMS including quoted or estimated cost; details of the Work to be undertaken including specifications and quantities; delivery instructions and time periods. Quotes and estimates shall be deemed to correctly interpret the original specifications for the Work given by the Customer to SMS and are based on the cost at the time the quote or estimate is given. Quotes and estimates unless accepted automatically lapse after 30 days from the date of issue.
Scope of Works and Authorisation:
The Customer warrants that he/she/it is the owner of the Vessel or the owner’s authorised agent and they have the authority to request SMS to perform the Works. The Customer authorises SMS to move and store the Vessel by whatever means and in whatever circumstances SMS considers necessary and appropriate for the performance of the Work.
Sub-Contracting of Work:
SMS may after consultation with the Customer subcontract the whole or any part of the Work.
Unless otherwise specified all prices, quotes, or estimates exclude Goods and Services Tax.
Each SMS invoice shall be due and payable by the Customer within 7 days of receipt of invoice for the Work. SMS may invoice ongoing work on a monthly basis.
If payment is not received by SMS by due date, then, without prejudice to its other legal remedies, SMS may charge compounding default interest on the overdue monies at a rate of five percent (5%) per annum above the current commercial overdraft rate charged by SMS’s Bank which default interest may be charged on a day to day basis until all outstanding monies have been paid in full.
All legal costs (on a Solicitor to client basis) and collection expenses incurred by SMS in collecting or attempting to collect any overdue amount shall be payable by the Customer.
For the avoidance of doubt the Vessel which SMS has undertaken any Work on or provided goods and services in respect of will 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.
Risk and Title:
All risk (including risk of loss or damage to the Vessel) passes to the Customer on delivery of the Vessel by SMS. The Vessel is delivered to you when made available to you or your agent at SMS’s premises or other agreed delivery point.
No right title or interest in the Work shall pass until SMS receives full payment for the Work. By agreeing to these terms and conditions the Customer grants a security interest to SMS for all the Work (including without limitation) all goods services or materials installed in or affixed to the Vessel by SMS its employees and contractors and become an accession to other goods the security interest continues in the accession in accordance with the Personal Properties Securities Act 1999.
Limitation of Liability:
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. SMS’s liability for breach of any condition, guarantee or warranty that cannot be excluded is limited at SMS’s sole option, to the replacement or repair of the defective or non-complying items of the Work that caused SMS’s liability.
Except as provided above SMS 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 SMS its employees, agents and contractors in respect of the Work undertaken by SMS for the Customer.
SMS 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 three (3) months of the earlier occurring:
(i) The Work being completed by SMS; or
(ii) The Vessel leaving the care, custody or control of SMS.
Neither SMS nor the Customer will be liable to the other for any breach of these Terms and Conditions by any extraordinary occurrences which are beyond the reasonable control of the party in question.
These Terms and Conditions constitute the entire agreement and supersede and extinguish all prior agreements and understandings between SMS and the Customer.
These Terms and Conditions 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.