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Terms and Conditions of Sale

1. INTERPRETATION
1.1 In these terms and conditions of sale, unless the context requires otherwise:
(a) "Buyer" means the person buying the Goods from the Company.
(b) "Carrier" means the courier or other carrier responsible for delivery of the Goods to the Buyer.
(c) "Company" means MEC Marine Limited.
(d) "Contract" means the contract between the Company and the Buyer for the purchase of the Goods arising when the Buyer places an Order which is accepted by the Company.
(e) "Date of Contract" means:
(e)1. Where the Contract arises from an Order, the date of acceptance of that Order by the Company; or
(e)2. Where the Contract arises from a quotation given by the Company, the date upon which written acceptance of the quotation is received by the Company or, where no written acceptance of the quotation is received by the Company, the date of such other form of acceptance as the Company in its discretion determines to treat as a valid acceptance, provided that in the case of any conflict as to which date constitutes the Date of the Contract, the date of acceptance of the Order by the Company shall prevail.
(f) "Goods" means any goods ordered by the Buyer from the Company from time to time under the Contract and includes any services forming part of the supply of those goods.
(g) "GST" means goods and services tax in terms of the Goods and Services Tax Act 1985.
(h) "Order" means an order placed with the Company by the Buyer for the purchase of the Goods.
(i) "Price" means the price of the Goods set out in the Contract or as otherwise agreed between the Company and the Buyer in writing.
(j) A reference to a "person" includes a corporation, association, firm, company, individual, government or local body.

2. PRICE
2.1 The Price stated shall unless expressly stated otherwise be in New Zealand dollars and be deemed to be plus GST.
2.2 If there are any changes to any laws, regulations, by-laws, codes or standards with which the Company is obliged to comply after the Date of the Contract, any additional costs incurred by the Company in complying with those changes shall be met by the Buyer.

3. TAXES AND DUTIES
3.1 Unless expressly included in any quotation given by the Company, GST and any other taxes and duties relating to the supply of the Goods to the Buyer are not included in the Price and shall be payable by the Buyer to the Company in addition to the Price of the Goods at such rates as are prevailing at the date of delivery of the Goods.

4. PAYMENT
4.1 Subject to any contrary provision in the Contract or unless otherwise agreed between the Buyer and the Company, payment of the Price and any delivery charges incurred in respect of the Goods shall be made before dispatch of any order by the Company.
4.2 The Buyer shall not be entitled to withhold payment of, make any deduction from or set off any amount against any moneys payable to the Company under the Contract without the prior written consent of the Company.
4.3 Where the Buyer defaults in payment of any moneys under the Contract, the Company may (without prejudice to any other right or remedy of the Company) withhold further supplies of the Goods and/or reallocate any Goods reserved for the Buyer.
4.4 Receipt by the Company of a cheque, bill of exchange or any other negotiable instrument shall not constitute payment and the Buyer shall remain liable for the Price and any additional charges incurred in respect of the Goods (including delivery charges) until such cheque, bill of exchange or negotiable instrument is paid in full.

5. INTEREST FOR LATE PAYMENT
5.1 Interest at a rate equal to 5% above the Company's bank's base overdraft lending rate (as varied from time to time) shall be payable by the Buyer to the Company on any moneys outstanding under the Contract, accruing on a daily basis and a 365 day year and calculated from the date payment is due until the date payment is received in full by the Company. This clause 5.1 is without prejudice to any of the Company's other rights or remedies in respect of the Buyer's default in failing to make payment on the due date.

6. DELIVERY AND SHIPMENT
6.1 The Company shall be considered to have completed delivery of any order either:
(a) at the point of consignment of the Goods to a Carrier if the Buyer has selected this option for delivery; OR
(b) at the point of collection of the Goods by the Buyer or any agent of the Buyer from the Company’s premises.

7. DELAY
7.1 The Company shall not be liable under any circumstances for any costs, loss, expenses or damage (including any consequential loss) for late or non-delivery of any of the Goods.
7.2 If any time for delivery of the Goods is stated in the Contract, the time shall be an approximate time only and shall not be deemed to be of the essence of the Contract.

8. RISK AND INSURANCE
8.1 Risk of any loss, damage or deterioration of or to the Goods shall be borne by the Buyer from the time the Goods are in possession of the Carrier (or the first of the Carriers), OR at the point of collection of the Goods pursuant to clause 6.1(b) above, depending on the Buyer’s choice of mode of delivery.

9. PROPERTY
9.1 Title in the Goods passes to the Buyer at the first point following the completion of both the payment in full of the Price for the Goods and the passing of risk in accordance with clause 8.1. The Buyer acknowledges that until payment has been made in full, it will hold any Goods in its possession soley as Bailee for the Company. The Company or its agents may enter onto any premises under the ownership or control of the Buyer for the purpose of inspecting and/or repossessing any Goods not paid for in full.

10. DEFECTIVE GOODS
10.1 Subject to clauses 10.2 and 10.3, the Company shall replace any Goods which are delivered to the Buyer in a defective state or become defective within a period of 12 months from the date of order (where the defect arises or results from an act or omission by the Company) but shall have no other liability in respect of those defective Goods.
10.2 The Company shall not be liable to replace any defective Goods:
(a) Unless written notice of the defect is received by the Company from the Buyer as soon as reasonably possible following discovery of the defects, and no later than 14 days from the date of delivery unless otherwise agreed by the Company.
(b) Where the defect is the result of incorrect storage or handling by the Carrier or Buyer or any other person not under the direct control of the Company.
(c) Where any attempt to repair the defective Goods is made by any person or persons not authorised by the Company to effect such repair.
(d) Where the defective Goods have been modified without the approval of the Company.
(e) Where the application of the Goods or the maintenance of them subsequently has not be in accordance with industry best practice, including by way of example only poor surface preparation, lack of curing time, application in temperatures below 10 degrees centigrade, use of incorrect or no primer.
10.3 The Company shall not be obliged to replace any defective Goods while the Buyer is in default in relation to any of the Buyer’s Indebtedness or other obligation under the Contract.

11. LIABILITY
11.1 The Company shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind suffered by the Buyer arising directly or indirectly from any:
(a) Breach of any of the Company's obligations under or in connection with the Contract.
(b) Cancellation of the Contract.
(c) Negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors.
(d) Matters beyond the control of or without the fault or negligence of the Company.
11.2 Notwithstanding any contrary provision, the liability of the Company, whether in contract or pursuant to any cancellation of the Contract or in tort or otherwise, in respect of all claims or loss, damage or injury, however arising, shall not in aggregate exceed the Price paid by the Buyer for the Goods.

12. DEFAULT
12.1 If the Buyer:
(a) Fails to pay for the Goods on the due date for payment; or
(b) Defaults in the due performance of its obligations to the Company, whether under the Contract or otherwise; or
(c) Commits any act of bankruptcy, enters into any composition or arrangement with creditors or (being a company) commences to be wound up or has a receiver or manager or statutory manager appointed in respect of all or any of its assets, the Company may, without prejudice to any other right or remedy, suspend or terminate the Contract, and all other moneys payable by the Buyer to the Company, shall immediately become due and payable.
12.2 Without limiting any of the Company's other rights or remedies, if the Buyer is in default at any time in respect of any of its obligations under the Contract, any costs (including legal costs on a solicitor and own client basis) incurred by the Company in enforcing its rights or remedies in relation to that default will be payable by the Buyer to the Company on demand.

13. CONTRACT
13.1 The provisions of the relevant quotation by the Company (if any) or the Company's confirmation of an Order, together with these terms and conditions, shall constitute the Contract. All other conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerances to any conditions, merchantability or otherwise (whether of like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded.
13.2 No notice or document given by the Company to the Buyer under the Contract shall be
enforceable against the Company unless signed by a duly authorised representative of the Company.
13.3 These terms and conditions will prevail over the Buyer's terms of trade (however described). No variation of these conditions made by the Buyer shall be binding on the Company unless accepted by the Company (signed by a duly authorised epresentative)
in writing.

14. CONSUMER GUARANTEES ACT 1993
14.1 Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention.
14.2 The Buyer shall not, in relation to the supply by the Buyer of the Goods, give or make any undertaking, assertion or representation in relation to the Goods without the prior approval in writing of the Company, and the Buyer shall indemnify the Company against any liability or cost incurred by the Company as a result of any breach by the Buyer of this provision.
14.3 The Buyer shall, in relation to any supply of any of the Goods by the Buyer, contract out of the provisions of the Consumer Guarantees Act 1993 to the extent that the Buyer is entitled to do so under that Act and shall indemnify the Company against any liability or cost incurred by the Company under the Consumer Guarantees Act 1993 as a result of any breach by the Buyer of this provision.
14.4 Where the Buyer is not a Consumer or the Goods are being acquired for the purpose of resale or in any other circumstance permitting the provisions of the Consumer Guarantees Act 1993 to be excluded, the parties agree that the provisions of that Act are excluded to the fullest extent permitted by law.

15. GENERAL
15.1 No waiver of any breach or failure to enforce any provision of the Contract by the Company shall in any way affect, limit or waive the Company's right to subsequently enforce any provision of the Contract.
15.2 The Buyer may not assign any of its rights or obligations under the Contract without the prior written consent of the Company, which consent may be withheld at the Company's sole discretion, but the Company may assign any of its rights or obligations under the Contract.
15.3 Should any provision of the Contract become void or inoperative by operation of law, the remaining provisions shall remain unaffected and valid.
15.4 The Contract shall be governed by New Zealand law and the New Zealand Courts shall have exclusive jurisdiction in respect of all claims and actions arising out of the Contract, provided that the Company shall be entitled to commence an action arising out of or in respect of the Contract in any other jurisdiction.
15.5 If, due to circumstances beyond its reasonable control, the Company is unable, either wholly or in part, to carry out any of its obligations under the Contract, that obligation shall be suspended so far as it is affected by and during the continuance of that
circumstance.
15.6 Where the Buyer is an individual, the Buyer irrevocably authorises the Company:
(a) (Subject to any confidentiality obligations) to obtain from any third party (and including search of the Personal Property Securities Register) such information in respect of the Buyer as the Company may require in connection with its lawful commercial purposes;
(b) To provide any such information to any third party in connection with its lawful commercial purposes.
15.7 The Buyer acknowledges that it is aware of its rights of access to and correction of personal information under the Privacy Act 1993.
15.8 In the event of any dispute between the parties in relation to the terms and conditions of this contract, the parties shall first seek to resolve such dispute by written notice to the other party and endeavouring to resolve the dispute in good faith. If the dispute remains unresolved, the parties shall seek resolution through mediation or other informal method of resolution before pursuing resolution through the Courts.