Terms and Conditions

TERMS AND CONDITIONS OF SERVICE

Any instructions received by Boat Fix New Zealand Limited from the Customer for the supply of goods or services (including dropping any vessel off at Boat Fix with or without prior arrangement) shall constitute acceptance of the terms and conditions contained herein.

 

1. COLLECTION AND USE OF INFORMATION

1.1 The Customer authorises Boat Fix to collect, retain and use any information about the Customer, or for the purpose of assessing the Customer’s credit worthiness, or for enforcing any rights under this contract. The Customer authorises Boat Fix to disclose any information obtained to any person for the purposes set out in this clause. Where the Customer is a natural person the authorities under this clause are authorities or consents for the purposes of the Privacy Act 1993.

2. PRICING

2.1 The Customer agrees to pay the price charged for all goods and services. Boat Fix will provide a written estimate for the cost of the requested goods/services prior to the commencement of works. This estimate will be based on a visual inspection of the repairs requested of Boat Fix by the Customer. The Customer’s authorisation is required in writing (including by email) prior to the commencement of repairs. If additional damage is discovered during the repair process, Boat Fix will update the Customer of the additional costs and will proceed with repairs once the Customer’s further approval to proceed has been received.

3. PAYMENT

3.1 In the case of private customers, all invoices and insurance excesses must be paid in full prior to the release of the vessel by Boat Fix. Private business clients and insurance company accounts are due on or before the 20th of the month following the date of the relevant invoice. The “due date” for payment shall be interpreted, in each case, according to whether the Customer is a private customer, a private business client or an insurance company.

3.2 In the event of an outstanding insurance account, the amount outstanding will become the responsibility of the insured party as at the first working day following the due date according to the insurance company’s payment terms above.

3.3 If after a vessel has not been collected and an account has not been paid within two months from the date of arrival of the vessel at Boat Fix’s premises, Boat Fix may sell the vessel and apply the proceeds of sale, in each case, in accordance with the provisions of the Contract and Commercial Law Act 2017. Vessel storage will be charged in accordance with clause 5.

3.4 Boat Fix may impose a credit limit on the Customer and alter the credit limit without notice. Where the credit limit is exceeded Boat Fix may refuse to supply goods or services to the Customer.

3.5 Boat Fix may notify the Customer at any time that it has ceased to supply goods or services on credit to the Customer.

3.6 Interest may be charged by Boat Fix on any amount owing from time to time from the due date until the date payment is received by Boat Fix at a default rate of 15% per annum, calculated daily. Any expenses, disbursements and legal costs incurred by Boat Fix in the enforcement of any rights contained in this contract shall be paid by the Customer, including solicitor’s fees on solicitor / client basis and/or debt collection agency fees.

3.7 Boat Fix will apportion payments received to outstanding accounts as it thinks fit. Boat Fix reserves the right to request payment for any goods / services from the Customer prior to the commencement of any services.

4. SUPPLY OF PARTS AND SUBCONTRACTING

4.1 Parts suppliers for parts necessary in connection with Boat Fix’s provision of the services are chosen at Boat Fix’s discretion. Parts supplied will be genuine new parts and will be charged at the dealership recommended retail price. Second hand parts may be supplied when genuine parts are not available. Second hand parts are charged at cost + 30% mark up to cover refurbishment for suitable use. Second hand parts are supplied and will be utilised at Boat Fix’s discretion.

4.2 Any necessary subcontracted services are charged at cost + 15% mark up. For the avoidance of doubt, parts and services supplier invoices will be made available to Customers.

5. VESSEL STORAGE

5.1 Boat Fix reserves the right to charge for vessel storage at a measured per metre rate of $11.20+GST (including trailer) per day (or part thereof).

5.2 Private customers and private business clients may be charged for vessel storage at Boat Fix’s discretion if (in its sole opinion) Boat Fix deems that the relevant private customer or private business client has not collected their vessel in a timely fashion.

5.3 In the case of Customers that are insurance companies, total loss vessel storage will be charged from (and including) the day the vessel arrives at Boat Fix’s premises until the day the vessel leaves Boat Fix’s premises. This includes storage whilst waiting for a third-party purchaser to collect the vessel.

5.4 In the case of Customers that are insurance companies, authorisations are expected by 4:30pm on a working day. Late authorisations will attract a vessel storage fee of $30 + GST per day or part thereof.

6. VESSEL DROP OFF AND COLLECTION

6.1 Boat Fix’s standard business hours are 7.30am to 5pm, Monday to Friday. Vessels must be dropped off or collected during these hours. After hours vessel drop offs and collections are available by arrangement only. Any vessels stored, worked on at Boat Fix’s premises remain at the Customer’s risk. The Customer is responsible for keeping its vessel insured at all times.

7. AGENCY

7.1 The Customer authorises Boat Fix to contract either as principal or agent for the provision of goods or services that are the matter of this contract. Where Boat Fix enters into a contract of the type referred to in clause 4.1 it shall be read with, and form part of this contract and the Customer agrees to pay any amounts due under that contract.

8. RETENTION OF TITLE

8.1 If, in the course of providing the services to the Customer, Boat Fix provides any goods to the Customer, title to those goods shall remain with Boat Fix until such time as payment in full for the goods and the services has been received by Boat Fix (notwithstanding any period of credit allowed by Boat Fix).

9. PPSA SECURITY INTEREST

9.1 The Customer grants to Boat Fix a security interest (as defined in the Personal Property Securities Act 1999 (“PPSA”) in the all of the Customer’s present and after acquired personal property that Boat Fix has performed services on or to which goods supplied have been attached or incorporated and all present and after acquired personal property that being proceeds of such property, which shall secure the obligation of the Customer to pay the amount owing and any other obligations of the Customer to Boat Fix under this contract.

9.2 As and when required by Boat Fix the Customer shall, at its own expense, provide all reasonable assistance and relevant information and do all things necessary to enable Boat Fix to register a Financing Statement or Financing Change Statement and generally to obtain, maintain, perfect, register and enforce Boat Fix’s security interest in respect of the goods supplied, in accordance with the PPSA.

9.3 The Customer shall not change its name without first notifying Boat Fix of the new name not less than 7 days before the change takes effect.

9.4 Nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to this contract.

9.5 The Customer waives their right to: receive notice under section 120(2) and 129; receive a statement of account under section 116; receive surplus distributed under section 117; recover any surplus under section 119; object to any proposal of Boat Fix to retain collateral under section 121; not have goods damaged in the event that Boat Fix were to remove an accession under section 125; apply to the Court for an order concerning the removal of an accession under section 131; redeem collateral under section 132; and receive a verification statement under section 148.

10. DEFAULT

10.1 The security interest created by clause 9 of this contract becomes immediately enforceable if any of the following events occur:

1. (a)  the Customer fails to pay any amount owing on the due date;
2. (b)  the Customer sells, parts with possession, leases or disposes of any goods or does anything inconsistent with Boat Fix’s ownership of the goods prior to making payment in full to Boat Fix;
3. (c)  Boat Fix believes the Customer has committed or will commit an act of bankruptcy, has had or is about to have a receiver, liquidator, or voluntary administrator appointed, or is insolvent or unable to pay its debts as they fall due; or

4. (d) The goods are at risk, as that term is defined in the PPSA.

11. LIABILITY

1. 11.1 To the full extent permitted by law, Boat Fix shall not be liable:
   1. (a)  for any loss or damage of any kind whatsoever whether suffered or incurred by the Customer or another person whether such loss or damage arises directly or indirectly from goods or services, or advice provided by Boat Fix to the Customer and without limiting the generality of the foregoing of this clause Boat Fix shall not be liable for any consequential loss or damage of any kind including without limitation any financial loss;
   2. (b)  except as provided in this contract in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods or services provided by Boat Fix to the Customer; or
   3. (c)  for any delay or failure to supply goods or services.
2. 11.2 Boat Fix’s liability for any loss (including consequential loss), damage or expense arising out of the services provided is limited at Boat Fix’s option, to either: re-do any part of the work which the Customer is entitled to reject; or refund the price of the work which the Customer is entitled to reject. Boat Fix will not be liable in any event if the work has been altered or repaired by any person other than Boat Fix.
   In any event, Boat Fix will not be liable in respect of any claim unless the claim is notified to Boat Fix within: 14 days of completion of the work; and 5 days of the alleged defect becoming apparent; and Boat Fix is given a reasonable opportunity to investigate the claim.
3. 11.3 The Customer shall indemnify Boat Fix against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Boat Fix or otherwise, brought by any person in connection with any matter, act, omission, or error by Boat Fix its agents or employees in connection with the goods or services.

12. WARRANTIES

1. 12.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires goods or services from Boat Fix for the purposes of a business in terms of section 2 and 43 of that Act.
2. 12.2 Nothing in this contract is intended to contract out of the provisions of the Consumer Guarantees Act 1993, except to the extent permitted by the Act.
3. 12.3 The only guarantees applying to the goods and services supplied by Boat Fix are those confirmed by Boat Fix in writing.

13. CANCELLATION

1. 13.1  Boat Fix shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the Customer if the Customer fails to pay any amount owing after the due date or the Customer commits an act of bankruptcy of becomes otherwise insolvent or unable to pay its debts as they fall due. Otherwise, Boat Fix may cancel this contract by providing the Customer 2 weeks’ written notice.
2. 13.2 Any cancellation or suspension under clause 13.1 of this contract shall not affect Boat Fix’s claim for amount due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Customer’s obligations to Boat Fix under this contract.
3. 13.3 If the Customer requests suspension or cancellation of the work or supply of services, Boat Fix may increase the agreed price to cover any resulting extra expense should this apply or, any out of pocket expenses incurred by Boat Fix.
4. 13.4 Two weeks’ written notice is to be given by the Customer to Boat Fix in the event of suspending or cancelling contracted regular services.

14. NOTICE

14.1 Any notice may be given by phone, in person, posted, or sent by email to the Customer or to any director or representative of the Customer.

15. VARIATION

1. 15.1 Boat Fix shall be entitled at any time by notice in writing to the Customer to vary any provision of this contract and the Customer shall be bound thereby except as provided in clause 15.2.
2. 15.2 The Customer shall be entitled within seven (7) days of the Customer’s receipt of the notice referred to in clause 15.1 to give 2 weeks’ written notice to Boat Fix terminating this contract.

15.3 In the event of the Customer giving written notice pursuant to clause 15.2 to Boat Fix the purported variation of this contract shall have no effect as between Boat Fix and the Customer.

16. MISCELLANEOUS

16.1 The Customer shall not assign, novate, or otherwise transfer all or any of its rights or obligations under this contract without the written consent of Boat Fix.

16.2 Boat Fix shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

16.3 Failure by Boat Fix to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Boat Fix has under this contract.

16.4 The law of New Zealand shall apply to this contract.

16.5 Where the terms of this contract are inconsistent with the order or instruction from the Customer, this contract shall prevail.

 

16.6 If any provision of this contract shall be invalid, void, or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

 

16.7 If any dispute or difference arises in relation to any aspect of this contract or the implementation or performance of its terms, the parties agree that before taking any formal contentious step, they shall attempt to resolve the dispute or difference by negotiation. If within two weeks of a dispute or difference being raised by a party (by notice in writing to the other party) it has not been resolved by negotiation, the parties shall refer the matter to mediation. If the matter remains unresolved within four weeks of such a referral to mediation, either party may act in such forum as it sees fit. This clause shall not preclude any party from taking any injunctive or other interim legal proceedings considered necessary for the urgent protection of its rights.

17. DEFINITIONS

17.1 “amount owing” means the price charged by Boat Fix for the goods and/or services, and any other sums which Boat Fix is entitled to charge under this contract which reman unpaid.

17.2 “Customer” shall mean the Customer (being either a private customer, a private business client or an insurance company as the context may require): any person acting on behalf of and with the authority of the Customer, or any person purchasing goods or services from Boat Fix.

17.3 “goods” shall mean all goods and/or chattels supplied by Boat Fix to the Customer in connection with the services and shall include any fee or charge associated with the supply of goods by Boat Fix to the Customer.

17.4 “insurance company” means a customer (being a company, partnership, incorporated society, or other entity (whether incorporated or unincorporated)) who is in the business of providing insurance products and services and who engages Boat Fix for the supply of goods and/or services.

17.5 “price” shall mean the cost of the goods or services as agreed between Boat Fix and the Customer subject to clause 2 of this contract.

17.6 “private customer” means a customer (being a natural person) who is an individual engaging Boat Fix in his or her personal capacity for the supply of goods and/or services.

17.7 “private business client” means a customer (being a company, partnership, or other business entity (whether incorporated or unincorporated)) who engages Boat Fix for the supply of goods and/or services.

17.8 “services” shall mean all services provided by Boat Fix to the Customer and shall include without limitation the provision of all boat repairs, parts supply, spray painting and grooming services (including all subcontracted services such as (without limitation) mechanical repairs, windscreen repair and upholstery repair), all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of services by Boat Fix to the Customer .