1.0 DEFINITIONS
1.1 The Company refers to Tristram Marine Limited.
1.2 The Buyer refers to the person, partnership, trust, company or corporate entity which has signed this agreement as Buyer.
1.3 Payments means the payment/s to be made by the Buyer to the Company for the Products or Services.
1.4 Products means the Products that the Buyer is purchasing from the Company, including any Products and/or goods which the Company applies to or uses to build the Products.
1.5 Services means services, work and labour provided by the Company to the Buyer at any time.
2.0 PAYMENT
2.1 The Buyer will make each Payment on or before the due date shown on the invoice for the Payment by the Company to the Buyer, unless otherwise agreed in writing.
2.2 If required, the Buyer will make an initial Payment as a deposit. The deposit is non-refundable.
2.3 All stated and quoted prices are in New Zealand Dollars and exclude GST. GST will be paid by the Buyer in addition to the stated price. If a GST rate change occurs during a contract term, the new GST rate will apply to the remaining payments listed on the Purchase Agreement (in the absence of a transitional provision).
2.4 If the Buyer chooses to make a Payment by credit card an additional fee of 2.7% will be charged by the Company. The Company reserves the right to place further conditions (including but not limited to requiring identification) on any credit card payment.
2.5 The Buyer may not deduct or withhold any amount due to the Company. If the Buyer has any dispute with the Company regarding the Products and/or Services, the Buyer will pay the full amount due and raise any issues through the dispute resolution process set out in these terms.
2.6 If the Buyer wishes to return items purchased a 25% restocking fee will be deducted from refunded amounts. Not all items are able to be returned. Each case will be supplier and item dependent. Freight and shipping costs will not be refunded.
3.0 INTEREST ON UNPAID SUMS
3.1 If the Buyer does not pay any sum by the date it is due, then without prejudice to the Company’s other remedies, the Company may charge the Buyer interest on the unpaid overdue balance at the rate of 15.0% per annum from the date payment was due until the date of payment.
3.2 The charging of penalty interest does not extend the due date of payment.
4.0 OWNERSHIP OF PRODUCTS AND INTELLECTUAL PROPERTY
4.1 Ownership of the Products will not pass to the Buyer until all sums owing by the Buyer to the Company for the Products and for any services provided in connection with the Products have been received by the Company.
4.2 If the Buyer has possession of the Products before payment is made, the Buyer will hold the Products as bailee for the Company. The Buyer will clearly identify and store the Products in a manner that makes it clear that the Products are the property of the Company.
4.3 If the Products are used to become part of another product or are changed in character in any way, title to the Products shall continue in the reconstituted product to the fullest extent permitted by law.
4.4 The Buyer irrevocably authorises the Company and its agents to enter on and into any premises occupied by the Buyer to search for and remove the Products of which the Company retains ownership. The Company will not be required to give any notice to enter on or into the Buyer’s premises. If the Products are attached to or incorporated in any other goods, the Company may, where practical, disconnect or sever the Products and remove those other goods. The Company will not be liable to the Buyer or any person claiming through the Buyer if the Company exercises its rights under this clause.
4.5 The Buyer acknowledges that the Company (and the Company’s nominees) solely and exclusively own all intellectual property in relation to the Products and the Services, including any know-how, designs or works that enhance or modify the Products or Services in any way, and including all copyrights, patents, trade secrets, trademarks and other proprietary rights attaching to the Products or Services. The Buyer:
(a) will sign any documentation considered reasonably necessary by the Company to perfect the Company’s ownership of its intellectual property;
(b) will co-operate fully and as the Company may require in obtaining, defending or enforcing its intellectual property;
(c) will not dispute the Company’s ownership of the Products, designs or the intellectual property;
(d) will not hold itself out as the owner of any of the Company’s intellectual property in the Products or Services; and
(e) will not market, sell, lease, loan or otherwise distribute, transfer, assign, duplicate, display or disclose the Company’s intellectual property in the Products or Services.
5.0 RISK AND DELIVERY
5.1 If the Buyer takes possession of the Products before all Payments for those Products have been made to the Company, then the Buyer must, from the time the Buyer takes possession until all Payments are made to the Company, keep the Products insured in the joint names of the Company and the Buyer against loss or damage to the Products’ full insurable value.
5.2 In all other respects risk in the Products will pass to the Buyer upon the delivery of the Products.
5.3 Delivery will be deemed to have been made when:
(a) If the Company is delivering the Products to a Buyer’s nominated site address, upon the Products being delivered to that address;
(b) If the Products are being sold from the Company’s premises and the Buyer is to collect, when the Company has placed the Products at the disposal of the Buyer.
5.4 Where delivery is to be made to the Buyer’s site address, delivery will be made to the site specified by the Buyer and on the date agreed by the Company and the Buyer for delivery. If requested, the Company will deliver on the site, but will not be responsible for any damages or incidents that occur on site.
5.5 The Company reserves the right to charge reasonable costs of delivery. The Buyer is responsible for any and all additional charges that may be incurred if on site delivery is requested.
5.6 All delivery dates are estimates only. The Company will not be liable to the Buyer for any non-delivery or delays in delivery. The Buyer will not be entitled to cancel the order or claim any sum as damages/compensation if estimated delivery dates are not met.
6.0 PERSONAL PROPERTY SECURITIES ACT 1999
6.1 The Buyer grants to the Company a security interest in:
(a) All present and after acquired Products, and goods which the Company has applied Services to or commingled with any of the Company’s products; and
(b) All proceeds of the Products.
6.2 On the request of the Company, the Buyer will promptly execute any document and do anything else required by the Company to ensure that the security interest created under this agreement constitutes a first ranking perfected security interest over the Products and their proceeds including providing any information the Company reasonably required to complete a financing statement or a financing change statement. The Buyer waives any right to receive a copy of the verification statement under the Personal Property Securities Act 1999 and the parties expressly contract out of the Buyer’s rights under sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of that Act.
6.3 The Buyer will pay the Company all costs, expenses and other charges incurred, expended or payable by the Company in relation to the filing of a financial statement or a financing change statement in connection with these terms and conditions.
7.0 MATERIALS
7.1 In the event of any specified materials being unprocurable or prohibited by any statute, regulation or by-law, then the Company may substitute any materials which are of a value and quality as near as is reasonably practicable to the specified materials. Any difference in the cost of such substituted materials will be treated as an extra or a deduction to the Payments as the case may be.
8.0 COSTS OF ENFORCEMENT
8.1 The Buyer will be liable for, and will indemnify the Company for:
(a) all costs incurred by the Company in enforcing its rights under these terms and conditions;
(b) any losses suffered, and costs incurred by the Company (whether directly or indirectly) as a result of the Buyer breaching any of these terms and conditions.
8.2 Any costs incurred or losses suffered by the Company under these terms will be payable by the Buyer upon demand in writing.
8.3 All such costs and expenses shall bear interest from the date upon which they are paid or incurred by the Company up to and including the date upon which the Buyer pays or reimburses the Company.
9.0 LIABILITY OF THE COMPANY
9.1 Any warranties (other than any express warranty that may be given by the Company to the Buyer in writing) in relation to the Products and Services are expressly excluded to the fullest extent permitted by law.
9.2 In the event any Products supplied by the Company are found to be defective or any Services provided by the Company are found to have not been carried out correctly, the maximum liability of the Company whether in contract, tort or otherwise will be lesser of:
(a) the cost of the Products or Services; or
(b) the cost of remedying the defective Products and Services; or
(c) the actual loss or damage suffered by the Buyer.
9.3 The Company will not be liable for delay or failure to perform its obligations arising from any act of God, or if the cause of the delay or failure is beyond its control.
10.0 MISCELLANEOUS
10.1 The Company is under no obligation to accept any extras, variations or deletions to the Products and/or Services, but may in its absolute discretion accept such extras, variations or deletions which are requested by the Buyer in writing. The costs of such extras or variations must be agreed on at the time that they are ordered and must be paid for before work on the extras or variations is commenced. The credit for deletions (if any) will be agreed on when the deletions are accepted by the Company.
10.2 If the Buyer is acquiring or holding itself out as acquiring the Products and/or Services for a business purpose, the Consumer Guarantees Act 1993 and the Sale of Goods 1908 will not apply to the fullest extent permitted by law.
10.3 Any person signing this document shall be personally liable (and if more than one jointly and severally) to the Company for all amounts payable from time to time to the Company. The signatory/s warrant/s that they have the power and authority to enter into these terms and conditions.
10.4 The Company reserves the right to withdraw at any time any credit that has been given. If the Company withdraws any credit that has been given the Company may suspend performance of its obligations until it has received payment in advance for any quoted work or subsequent orders.
10.5 These terms and conditions can only be varied by written agreement between the parties.
10.6 These terms and any terms set out by the Company shall be included as terms in any contract resulting between the parties and in the case of any conflict arising between these terms or the terms of the Buyers’ order then these terms and conditions will prevail.
10.7 The placement of an order shall be deemed to be acceptance of these terms and conditions.
10.8 Any disputes arising out of any order placed will first be attempted to be resolved by the Company and the Buyer through good faith negotiations and, if necessary, mediation in accordance with the protocols of the Arbitrators and Mediators Institute of New Zealand before any court proceedings are served.
10.9 These terms and conditions are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
10.10 If any part of these terms and conditions are deemed to be void, illegal, or unenforceable, that part will be severed, and will not affect the validity of the rest of the terms of trade.