Terms and Conditions of Trade
1. In these terms and conditions:
“Seller” shall mean Maui Ocean Products Ltd and any agents or employees.
“Buyer” shall mean and person or company buying goods from the seller.
“Goods” means all goods and services provided by the Seller to the Buyer.
“Price” shall mean the cost of goods as agreed between the Seller and the Buyer subject to clause 3 of this contract.
Acceptance & Overview
2. Receipt of an order from the Buyer will be deemed acceptance by the Buyer of the terms and conditions contained herein.
3. Where more than one Buyer has entered into this agreement, the Buyers shall by jointly and severally liable for all payments of the Price.
4. None of the Sellers agents or representatives are authorized to make any representations, statements, conditions or agreements not pressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorized statements.
Price and Payment
5. Payment for the Goods shall be made in full on or before the 20th day of the month following the date of invoice, or if requested by the company on receipt of delivery of the Goods.
6. The Price shall be either as indicated on invoices provided by the Seller to the Buyer or the Sellers quoted price (subject to clause 5) which shall be binding upon the Seller provided that the Buyer accept in writing the Sellers quotation within thirty (30) days.
7. Any variation to Goods supplied on a quotation basis will be charged for on the basis of the quotation. Payment for all variations must be made in full at the time of their completion.
8. Payment will be made by cheque, or by bank cheque, by direct credit, or by credit card, or by any other method as agreed between the Buyer and the Seller.
9. The price shall be increased by the amount of any GST and or other taxes or duties that may be applicable, unless otherwise stated in a quotation.
10. If a refund is agreed this shall be issued in the form of a credit note. It is company policy that no cash refunds will be issued.
Default & Consequences of Default
11. Interest on overdue invoices shall accrue from the date when the payment becomes due daily until the date of payment at a rate of 2% compounding per calendar month and shall accrue at such a rate after as well as before any judgment.
12. Any expenses disbursements and legal costs incurred by the Seller in the enforcement of any rights contained in this contract, including any reasonable solicitor’s fees or debt collection agency fees shall be paid by the Buyer.
13. The Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
14. If any account remains unpaid at the end of the second month after supply of goods and services an immediate amount of the grater of $20.00 or 10% of the amount overdue may be levied for administration fees. This shall become immediately due and payable to the interest payable under clause 12 hereof.
Delivery of Goods
15. Delivery of the Goods shall be made to the Buyer at the Sellers address unless otherwise agreed.
16. Delivery of the Goods to a carrier chosen at the discretion of the Seller for the purpose of transmission to the Buyer is deemed to be a delivery of the Goods to the Buyer.
17. The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer and shall be due on the date of payment of the price. The carrier shall be deemed to be the Buyers agent.
18. The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
19. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
20. The Buyer shall inspect the Goods on delivery and shall within 14 fourteen days of delivery notify the Seller of any alleged defect, shortage in quantity, damage of failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
21. Subject to the conditions of warranty set out in clause 22 the Seller warrants that if any defect in any workmanship of the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within 14 fourteen days of delivery then the Seller will either (at the Sellers sole discretion) repair the defect or remedy the workmanship.
22. The conditions applicable to the warranty given by clause 21 are:
a. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through the failure on the part of the Buyer to properly maintain any Goods or follow any instructions or guidelines provided by the Seller;
b. Use the Goods in a manner they where not intended, or continue to use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user.
23. The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Sellers consent.
24. In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Buyers claim.
25. For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer for the Goods. The Seller shall not be found by nor responsible for any long term, condition, representation or warranty given by the manufacturer
of the Goods.
26. If the Seller retains title to the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.
27. Title for the goods will pass to the Buyer when the Buyer has made payment in full for all Goods supplied by the Seller. Until then title to the Goods remains with the Seller.
28. The Buyer gives irrevocable authority to the company to enter any premises occupied by the Buyer, at any reasonable time, to remove any Goods not paid for in full by the Buyer. The Seller shall not be liable for any damages or expenses or any other loses incurs by the Buyer or any third party as a result of this action.
Personal Property Securities Act 1999
29. Where clause 27 applies the Buyer grants the Seller a security interest in the Goods and their proceeds to secure the obligation of the Buyer to pay the purchase price of the Goods and any other obligations of the Buyer to the company under this contract. Where the Goods and / or proceeds are not readily identifiable or traceable or their recoverable value is less than the indebtedness, the security interest created by this clause becomes enforceable if any of the following events occur:
a. The Buyer fails to pay any money owing on the due date.
b. The Buyer sells, parts possession with, leases or disposes of any Goods or does anything inconsistent with the Sellers ownership of the Goods prior to making full payment to the Seller.
c. The Seller believes the Buyer has committed or will commit an act of bankruptcy, has or might have a receiver appointed, or is declared insolvent.
d. The Goods are at risk as that term is defined in the PPSA 1999.
e. There is a decline in the asset position of the Buyer.
30. The Buyer shall at its own expense provide the Seller with all the information to register a financing statement or financing change statement and generally obtain, maintain, register and enforce the Sellers security interest I respect of the Goods supplied in accordance with the PPSA 1999.
31. Where the Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Sellers discretion.
32. The Buyer warrants that all designs or instructions the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution or the Buyers order.
33. The Seller may cancel these terms and conditions or cancel delivery or Goods and services at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any amounts paid in respect of the price for those Goods. The Seller shall not be liable for any loss or damage whatsoever arising from the cancellation.
34. At the Sellers sole discretion the Buyer may cancel delivery of Goods and / or services. In the event that the Buyer cancels delivery of the Goods and / or services the Buyer shall be liable for any costs incurred to the Seller up to time of cancelling.
Collection and Use of Information
35. The Buyer authorises the Seller to collect, retain and use any information about the Buyer, for the purpose of assessing the Buyers credit worthiness or enforcing any rights under this contract.
36. The Buyer authorizes the Seller to disclose information about the Buyer to any person for the purposes set out in clause 35.
37. The Buyer shall have the right to request the Seller for a copy of the information the Seller has about the Buyer and the right to request the Seller correct and incorrect information about the Buyer held by the Seller.
Unpaid Sellers rights to dispose of goods
38. In the event that the Seller retains possession or control of the Goods and payment of the price is due and has been demanded in writing but not received, then the Goods may be disposed of. Any amount still owing may be claimed from the Buyer.
Consumer Guarantee Act 1993
39. This agreement is subject to the provisions or the consumer guarantee act 1999 in all cases except where the Buyer is contracting within the terms or a trade / business (which cases are specifically excluded).
40. If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability or the remaining provisions shall not be affected, prejudiced or impaired.
41. In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the price of the Goods.
42. Neither party shall be liable for any defect due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
43. The Buyer shall not set off against the price amounts due by the Seller.
44. The Seller may license or subcontract all or any parts of its rights and obligations without the Buyers consent.
45. The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change, that change will take effect from the date the Seller notifies the Buyer of such change.