-
Definitions
1.1. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2. “SP Marine” means South Pacific Marine Services Limited, its successors and assigns.
1.3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting SP Marine to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a). if there is more than one Client, is a reference to each Client jointly and severally; and
(b). if the Client is a partnership, it shall bind each partner jointly and severally; and
(c). if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d). includes the Client’s executors, administrators, successors and permitted assigns.
1.4. “Parts” means all Parts or Services supplied by SP Marine to the Client at the Client’s request from time to time (where the context so permits the terms ‘Parts’ or ‘Services’ shall be interchangeable for the other).
1.5. “Vessel” shall mean any Vessel of the Client expressly used for water travel and/or recreation, and described in any documentation supplied by the Client to SP Marine.
1.6. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using SP Marine’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.7. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Parts as agreed between SP Marine and the Client in accordance with clause 5. below.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Parts.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Parts on credit shall not take effect until the Client has completed a credit application with SP Marine and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Parts requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, SP Marine reserves the right to refuse delivery.
2.6 In the event that the Parts and/or Services provided by SP Marine are the subject of an insurance claim that the Client has made, then the Client shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by SP Marine and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.7 If SP Marine has been requested by the Client to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
2.8 The Client acknowledges and agrees that SP Marine shall be entitled to:
(a) retain any components replaced during the provision of the Services; and
(b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
2.9 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that SP Marine shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by SP Marine in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by SP Marine in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of SP Marine; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give SP Marine not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by SP Marine as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At SP Marine’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by SP Marine to the Client; or
(b) the Price as at the date of Delivery of the Parts according to SP Marine’s current price list; or
(c) SP Marine’s estimated Price (subject to clause 5.2) which shall not be deemed binding upon SP Marine as the actual Price can only be determined upon completion of the Services. SP Marine undertakes to keep the Client informed should the actual Price look likely to exceed the original estimate; or
(d) SP Marine’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 SP Marine reserves the right to change the Price:
(a) if a variation to the Services which are to be provided is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection or testing) which are only discovered upon commencement of the Services; or
(c) where SP Marine is requested to store the Client’s goods or Vessel, or where goods (including parts and/or consumables) or Vessels are not collected within forty-eight (48) hours of advice to the Client that they are ready for collection, then SP Marine (at its sole discretion) may charge a fee for storage; or
(d) for all tow and/or salvage fees; or
(e) in the event of increases to SP Marine in the cost of labour or Parts which are beyond SP Marine’s control.
5.3 Variations will be charged for on the basis of SP Marine’s quotation, and will be detailed in writing, and shown as variations on SP Marine’s invoice. The Client shall be required to respond to any variation submitted by SP Marine within ten (10) working days. Failure to do so will entitle SP Marine to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 If (at SP Marine’s sole discretion) berthing is required, the Client shall be responsible for all associated costs.
5.5 At SP Marine’s sole discretion a non-refundable deposit may be required.
5.6 Time for payment for the Parts being of the essence, the Price will be payable by the Client on the date/s determined by SP Marine, which may be:
(a) on delivery of the Parts or completion of the Services;
(b) by way of instalments/progress payments in accordance with SP Marine’s payment schedule;
(c) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SP Marine.
5.7 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and SP Marine.
5.8 SP Marine may in its discretion allocate any payment received from the Client towards any invoice that SP Marine determines and may do so at the time of receipt or at any time afterwards. On any default by the Client SP Marine may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SP Marine, payment will be deemed to be allocated in such manner as preserves the maximum value of SP Marine’s Purchase Money Security Interest (as defined in the PPSA) in the Parts.
5.9 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by SP Marine nor to withhold payment of any invoice because part of that invoice is in dispute.
5.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to SP Marine an amount equal to any GST SP Marine must pay for any supply by SP Marine under this or any other contract for the sale of the Parts. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Provision of the Services
6.1 Delivery (“Delivery”) of the Parts is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Parts at SP Marine’s address; or
(b) SP Marine (or SP Marine’s nominated carrier) delivers the Parts to the Client’s nominated address even if the Client is not present at the address.
6.2 At SP Marine’s sole discretion the cost of Delivery is in addition to the Price.
6.3 SP Marine may deliver the Parts in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 At SP Marine’s sole discretion Delivery of the Services shall take place when:
(a) SP Marine provides the Services at SP Marine’s address; or
(b) SP Marine provides the Services at the Client’s nominated address.
6.5 Where SP Marine is to provide any Services at the Client’s nominated address then the Client shall be liable for all costs incurred by SP Marine from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at SP Marine’s standard rates and any Parts purchased for the Services).
6.6 Any time specified by SP Marine for Delivery of the Parts is an estimate only. The Client must take Delivery by receipt or collection of the Parts whenever they are tendered for Delivery. SP Marine will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. In the event that the Client is unable to take Delivery of the Parts as arranged then SP Marine shall be entitled to charge a reasonable fee for redelivery and/or storage.
7. Risk
7.1 Risk of damage to or loss of the Parts passes to the Client on Delivery and the Client must insure the Parts on or before Delivery.
7.2 If any of the Parts are damaged or destroyed following Delivery but prior to ownership passing to the Client, SP Marine is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by SP Marine is sufficient evidence of SP Marine’s rights to receive the insurance proceeds without the need for any person dealing with SP Marine to make further enquiries.
7.3 If the Client requests SP Marine to leave Parts outside SP Marine’s premises for collection or to deliver the Parts to an unattended location then such Parts shall be left at the Client’s sole risk.
7.4 SP Marine will accept no responsibility for valuables or other items left in the Client’s Vessel. It is the Client’s responsibility to remove any valuables from the Client’s Vessel prior to servicing/repair.
7.5 SP Marine shall not be liable for the loss of or damage to the Client’s Vessel, its accessories or contents while being repaired or operated in connection with the authorised Services (including in the event of a call-out: it shall be the Client’s responsibility to remain with the Vessel to ensure security of the same), unless caused by the negligence of SP Marine, or SP Marine’s employees.
7.6 Where the Client has supplied materials for SP Marine to complete the Services, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those materials. However, if in SP Marine’s opinion, it is believed that the materials supplied will not conform to the regulations, then SP Marine shall be entitled, without prejudice, to halt the Services until the appropriate conforming materials are sourced and all costs associated with such a change to the plans will be invoiced in accordance with clause 5.2.
7.7 The Client acknowledges and agree that where SP Marine has performed temporary repairs on the Vessel that:
(a) SP Marine offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) SP Marine will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair of the Vessel.
7.8 The Client acknowledges that SP Marine is only responsible for Parts that are replaced by SP Marine, and that in the event that other components subsequently fail, the Client agrees to indemnify SP Marine against any loss or damage to the Parts or the Client’s Vessel, or caused by the components, or any part thereof howsoever arising.
7.9 It is the Client’s responsibility to ensure that the Client’s Vessel is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at SP Marine’s premises. The Vessel is at all times stored and repaired at the Client’s sole risk.
7.10 The Client acknowledges that SP Marine or its employees may test drive or carry out tests on the Vessel (at SP Marine’s discretion), or (where required) tow the Vessel either on water or road, or may be requested by the Client to collect or re-deliver the Vessel. SP Marine will not be liable for (and the Client indemnifies SP Marine against) any damages caused to, or by, the Vessel during such tests, towing, collection or delivery unless it arises from the recklessness or wilful misconduct of SP Marine or its employees.
7.11 The Client accepts and acknowledges that SP Marine shall not accept liability for any damage or loss including personal injury or death in the event that the Client chooses to install Parts that subsequently prove to be insufficient for the purposes that the Client desired to achieve, particularly where this is against any recommendation of SP Marine.
8. Access
8.1 The Client shall ensure that SP Marine has clear and free access to the Vessel or the site where the Vessel is located at all times to enable them to undertake the Services. SP Marine shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of SP Marine.
9. Compliance with Laws
9.1 The Client and SP Marine shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
10. Title
10.1 SP Marine and the Client agree that ownership of the Parts shall not pass until:
(a) the Client has paid SP Marine all amounts owing to SP Marine; and
(b) the Client has met all of its other obligations to SP Marine.
10.2 Receipt by SP Marine of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that until ownership of the Parts passes to the Client in accordance with clause 10.1:
(a) the Client is only a bailee of the Parts and must return the Parts to SP Marine on request;
(b) the Client holds the benefit of the Client’s insurance of the Parts on trust for SP Marine and must pay to SP Marine the proceeds of any insurance in the event of the Parts being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Parts other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Parts then the Client must hold the proceeds of any such act on trust for SP Marine and must pay or deliver the proceeds to SP Marine on demand;
(d) the Client should not convert or process the Parts or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of SP Marine and must sell, dispose of or return the resulting product to SP Marine as it so directs;
(e) the Client irrevocably authorises SP Marine to enter any premises where SP Marine believes the Parts are kept and recover possession of the Parts;
(f) SP Marine may recover possession of any Parts in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Parts nor grant nor otherwise give away any interest in the Parts while they remain the property of SP Marine; and
(h) SP Marine may commence proceedings to recover the Price of the Parts sold notwithstanding that ownership of the Parts has not passed to the Client.
11. Personal Property Securities Act 1999 (“PPSA”)
11.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Parts that have previously been supplied and that will be supplied in the future by SP Marine to the Client, and the proceeds from such Parts.
11.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SP Marine may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, SP Marine for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Parts charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Parts or the proceeds of such Parts in favour of a third party without the prior written consent of SP Marine; and
(d) immediately advise SP Marine of any material change in its business practices of selling the Parts which would result in a change in the nature of proceeds derived from such sales.
11.3 SP Marine and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
11.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
11.5 Unless otherwise agreed to in writing by SP Marine, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.6 The Client shall unconditionally ratify any actions taken by SP Marine under clauses 11.1 to 11.5.
11.7 Subject to any express provisions to the contrary (including those contained in this clause 11.), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of SP Marine agreeing to supply the Parts, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
12.2 The Client indemnifies SP Marine from and against all SP Marine’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SP Marine’s rights under this clause.
12.3 The Client irrevocably appoints SP Marine and each director of SP Marine as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12. including, but not limited to, signing any document on the Client’s behalf.
13. Defects and Returns
13.1 The Client shall inspect the Parts on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify SP Marine of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford SP Marine an opportunity to inspect the Parts within a reasonable time following Delivery if the Client believes the Parts are defective in any way. If the Client shall fail to comply with these provisions the Parts shall be presumed to be free from any defect or damage. For defective Parts, which SP Marine has agreed in writing that the Client is entitled to reject, SP Marine’s liability is limited to either (at SP Marine’s discretion) replacing the Parts or repairing the Parts.
13.2 Parts will not be accepted for return other than in accordance with 13.1 above, and provided that:
(a) SP Marine has agreed in writing to accept the return of the Parts; and
(b) the Parts are returned at the Client’s cost within seven (7) days of the Delivery date; and
(c) SP Marine will not be liable for Parts which have not been stored or used in a proper manner; and
(d) the Parts are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
13.3 Subject to clause 13.1, non-stocklist items or Parts made to the Client’s specifications are not acceptable for credit or return.
14. Warranty
14.1 Subject to the conditions of warranty set out in clause 14.2 SP Marine warrants that if any defect in any Parts manufactured or Services provided by SP Marine becomes apparent and is reported to SP Marine within three (3) months of the date of Delivery (time being of the essence) then SP Marine will either (at SP Marine’s sole discretion) replace or remedy the defect.
14.2 The conditions applicable to the warranty given by clause 14.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Parts or serviced item; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by SP Marine; or
(iii) any use of any Parts or serviced item otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Parts or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and SP Marine shall thereafter in no circumstances be liable under the terms of the warranty if the defect is repaired, altered or overhauled without SP Marine’s consent.
(c) in respect of all claims SP Marine shall not be liable to compensate the Client for any delay in either replacing or remedying the defective Parts or Services or in properly assessing the Client’s claim.
14.3 For Parts not manufactured by SP Marine, the warranty shall be the current warranty provided by the manufacturer of the Parts. SP Marine shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Parts.
14.4 In the case of second hand Parts, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by SP Marine as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. SP Marine shall not be responsible for any loss or damage to the Parts, or caused by the Parts, or any part thereof however arising.
15. Consumer Guarantees Act 1993
15.1 If the Client is acquiring Parts for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Parts by SP Marine to the Client.
16. Intellectual Property
16.1 Where SP Marine has designed, drawn or developed Parts for the Client, then the copyright in any designs and drawings and documents shall remain the property of SP Marine. Under no circumstances may such designs, drawings and documents be used without the express written approval of SP Marine.
16.2 The Client warrants that all designs, specifications or instructions given to SP Marine will not cause SP Marine to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SP Marine against any action taken by a third party against SP Marine in respect of any such infringement.
16.3 The Client agrees that SP Marine may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Parts which SP Marine has created for the Client.
17. Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SP Marine’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If the Client owes SP Marine any money the Client shall indemnify SP Marine from and against all costs and disbursements incurred by SP Marine in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SP Marine’s collection agency costs, and bank dishonour fees).
17.3 Further to any other rights or remedies SP Marine may have under this Contract, if a Client has made payment to SP Marine, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SP Marine under this clause 17. where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
17.4 Without prejudice to SP Marine’s other remedies at law SP Marine shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SP Marine shall, whether or not due for payment, become immediately payable if:
(a) any money payable to SP Marine becomes overdue, or in SP Marine’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by SP Marine;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18. Cancellation
18.1 Without prejudice to any other remedies SP Marine may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SP Marine may suspend or terminate the supply of Parts to the Client. SP Marine will not be liable to the Client for any loss or damage the Client suffers because SP Marine has exercised its rights under this clause.
18.2 SP Marine may cancel any contract to which these terms and conditions apply or cancel Delivery of Parts at any time before the Parts are delivered by giving written notice to the Client. On giving such notice SP Marine shall repay to the Client any money paid by the Client for the Parts. SP Marine shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3 In the event that the Client cancels Delivery of Parts the Client shall be liable for any and all loss incurred (whether direct or indirect) by SP Marine as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4 Cancellation of orders for Parts made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
19. Privacy Policy
19.1 All emails, documents, images or other recorded information held or used by SP Marine is “Personal Information” as defined and referred to in clause 19.3 and therefore considered confidential. SP Marine acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Acts 1993 and 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. SP Marine acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by SP Marine that may result in serious harm to the Client, SP Marine will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
19.2 Notwithstanding clause 19.1, privacy limitations will extend to SP Marine in respect of Cookies where the Client utilises SP Marine’s website to make enquiries. SP Marine agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to SP Marine when SP Marine sends an email to the Client, so SP Marine may collect and review that information (“collectively Personal Information”)
If the Client consents to SP Marine’s use of Cookies on SP Marine’s website and later wishes to withdraw that consent, the Client may manage and control SP Marine’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
19.3 The Client authorises SP Marine or SP Marine’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by SP Marine from the Client directly or obtained by SP Marine from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
19.4 Where the Client is an individual the authorities under clause 19.3 are authorities or consents for the purposes of the Privacy Acts 1993 and 2020.
19.5 The Client shall have the right to request (by e-mail) from SP Marine, a copy of the Personal Information about the Client retained by SP Marine and the right to request that SP Marine correct any incorrect Personal Information.
19.6 SP Marine will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
19.7 The Client can make a privacy complaint by contacting SP Marine via e-mail. SP Marine will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
20. Service of Notices
20.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
20.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
21. Trusts
21.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not SP Marine may have notice of the Trust, the Client covenants with SP Marine as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of SP Marine (SP Marine will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
22. General
22.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
22.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Auckland, New Zealand.
22.4 Subject to the CGA, SP Marine shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SP Marine of these terms and conditions (alternatively SP Marine’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Parts).
22.5 SP Marine may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
22.6 The Client cannot licence or assign without the written approval of SP Marine.
22.7 SP Marine may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of SP Marine’s sub-contractors without the authority of SP Marine.
22.8 The Client agrees that SP Marine may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for SP Marine to provide Parts to the Client.
22.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to SP Marine.
22.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
