- These terms of trade apply to all goods supplied by Marine Evolutions Limited (“Marine Evolutions”) to the Customer (“Goods”) and to all workmanship relating to the installation of the Goods and any other services undertaken by Marine Evolutions for the Customer (“Services”).
Quotation & Acceptance
- Marine Evolutions will confirm the price of Goods and/or Services to the Customer by way of a written quotation which will stipulate an hourly rate or a quoted fixed cost (the “Quotation price”) and the due date for payment (the “Due date”). The quotation will be valid for a period of thirty (30) days.
- The Customer must confirm acceptance of the quotation in writing (“Job Order”) within thirty (30) days or the quotation will expire.
Payment Obligations & Consequences of Late Payment
- Payment for the Job Order will be made by cash, cheque, direct credit, or by any other method as agreed to between the Customer and Marine Evolutions on or before the Due date for payment.
- The Customer will make payment of all amounts due to Marine Evolutions without any delay or deduction whether by way of set-off or counterclaim.
- Marine Evolutions will charge the Customer interest on any monies outstanding at the rate of 5% above Marine Evolutions main trading bank’s 90-day bank bill buy rate as at the close of business on the date payment became due (“Default interest”). Default interest will be payable on all monies outstanding from the Due date for payment until the date payment is received in full by Marine Evolutions, but without prejudice to the other rights or remedies Marine Evolutions has in respect of the Customer’s default in failing to make payment on the Due date. Default interest will continue to accrue on the overdue amount after judgment has been obtained for recovery of all amounts claimed.
- The Customer will pay all costs and charges (including legal costs as between solicitor and client) incurred by Marine Evolutions in consequence of or in connection with any breach or default by the Customer in the performance or observance of any of the terms of these conditions or their enforcement.
- Without prejudice to any other remedies Marine Evolutions has, if at any time the Customer is in breach of any obligation including those relating to payment, or in Marine Evolutions opinion the Customer will be unable to meet its payment obligations as they fall due, Marine Evolutions may suspend or terminate the supply of all or any part of any Job Order of the Customer and any of its other obligations under the terms and conditions, and all amounts owing to Marine Evolutions will, whether or not due for payment, become immediately payable. Marine Evolutions will not be liable to the Customer for any loss or damage the Customer suffers because Marine Evolutions has exercised its rights under this clause.
- Marine Evolutions has sole discretion to apply payments from the Customer to any invoice notwithstanding that the Customer may have applied the payment to a particular invoice.
Risk, Delivery, Title
- Risk in the Goods shall pass to the Customer once the Goods are delivered to the Customer.
- Marine Evolutions will make every effort to ensure delivery of Goods and completion of Services on time but will not be liable for any loss or damage or consequential loss to the Customer arising from reasonable delays in delivery of Goods or completion of Services to the Customer.
- The Customer agrees that Marine Evolutions has legal and equitable right to title in all and any Goods supplied that remain unpaid and ownership in any Goods only passes to the Customer when the Job Order is paid in full. For as long as ownership in the Goods is retained by Marine Evolutions the Customer may use the Goods in such a way that they are identifiable as the property of Marine Evolutions and may not sell the Goods until the Customer pays Marine Evolutions in full without deduction or setoff.
Personal Property Securities Act 1999
- All terms in this clause 6 have the meaning given in the Personal Property Securities Act 1999 (“PPSA”) and section references shall be to sections of the PPSA.
- The Customer grants Marine Evolutions a security interest in the Goods as security for all amounts owing by the Customer to Marine Evolutions and performance of the Customer’s obligations under these terms, including any future amounts.
- At the request of Marine Evolutions the Customer will promptly execute any documents, provide all necessary information and do anything else required by Marine Evolutions to ensure that the security interest created under this Agreement constitutes a perfected security interest in the Goods and their proceeds which will have priority over all other security interests in the Goods.
- To the extent that Part 9 of the PPSA applies, the Customer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customer’s benefit, or place any obligations on Marine Evolutions in the Customer’s favor, will not apply; and where Marine Evolutions has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
- To the extent that Part 9 of the PPSA applies, without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by Marine Evolutions.
- The Customer agrees to treat the security interest in the Goods as a continuing and subsisting security with priority over a registered general security interest and any unsecured creditors, regardless of whether the Goods have become fixtures at any time before payment has been made for them.
Warranties & Liability
- To the extent permitted by law the liability of Marine Evolutions in respect of any claim will relate only to specific defects in the Goods arising from Marine Evolutions faulty manufacture of the Goods or from damage proven to occur to the Goods before delivery by Marine Evolutions. Written notice of such claim must be received by the Marine Evolutions within seven (7) days from the date of delivery of the Goods.
- Where Marine Evolutions accepts liability for damage or defect and elects to repair or replace Goods it will repair or replace the Goods to their original condition but where this cannot be done Marine Evolutions will refund the invoiced price of the Goods. Marine Evolutions will not consider claims from the Customer in respect of Goods which:
- are not intact and in original condition subject to normal wear and tear.
- have been improperly stored and suffered damage.
- have been improperly installed by the Customer.
- have been used for other than purposes specified to Marine Evolutions for supply.
- have been altered from the condition in which they were supplied or repaired by persons other than Marine Evolutions.
- have not been maintained according to any Instructions of Care issued by Marine Evolutions.
- Marine Evolutions may specify in writing the use of the Goods including the method of installation. If the Customer uses the Goods for purposes other than that specified or does not follow the method of installation specified, the Customer will be responsible for the fitness of the Goods for the purposes required by the Customer. No warranty will apply to Goods where the Customer fails to ascertain the correctness of the Goods for purposes intended by the Customer.
- The warranty on parts or materials or equipment supplied by Marine Evolutions as a constituent part of Goods or Services that are not manufactured by Marine Evolutions will be the warranty of the original manufacturer.
- Marine Evolutions will not be liable for any breach or failure to perform any of its obligations under this contract where such breach or failure is caused by war, bad weather, adverse environmental conditions, civil commotion, hostilities, strike or lockout, act of God, fire, governmental regulations or directions, or reasons beyond Marine Evolutions reasonable control.
Consumer Guarantees Act 1993
- Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 (the “Act”) except to the extent permitted by that Act where the Customer acquires the Goods in a business situation for the business purposes of a business and all provisions of these terms shall be read as modified to the extent necessary to give effect to that intention. Where the Goods are purchased from Marine Evolutions by consumer users for domestic purposes the conditions of the Act shall apply.
Disputes and Arbitration
- In the event of any dispute between Marine Evolutions and the Customer, the Customer agrees to pay the undisputed part of the outstanding monies owed and such dispute will be referred to a Mediator to be agreed between the parties and the costs will be equally shared. Upon failure to agree to the outcomes of mediation the dispute shall be referred to an Arbitrator and arbitration conducted in accordance with the Arbitration Act 1996 and any amendments thereof.