Terms of Trade

1. Definitions
   • “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.
   • “MWW” means Marine Works Westhaven Limited, its successors and assigns or any person acting on behalf of and with the authority of Marine Works Westhaven Limited.
   • “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting MWW to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Client, is a reference to each Client jointly and severally; and
     • if the Client is a partnership, it shall bind each partner jointly and severally; and
     • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Client’s executors, administrators, successors and permitted assigns.
   • “Goods” means all Goods or Services supplied by MWW to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
   • "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: 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) and pricing details.
   • “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 ordering from the 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 ordering Goods via the website.
   • “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between MWW and the Client in accordance with clause 5

 

1. Acceptance
   • 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 Goods.
   • 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.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • Any advice, recommendation, information, assistance or service provided by MWW in relation to Goods or Services supplied is given in good faith, is based on MWW’s own knowledge and experience and shall be accepted without liability on the part of MWW and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
   • In the event that MWW is required to provide the Services urgently which may require MWW’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then MWW reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between MWW and the Client.
   • The Client acknowledges and accepts that:
     • the supply of Goods on credit shall not take effect until the Client has completed a credit application with MWW and it has been approved with a credit limit established for the account;
     • in the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Client reserves the right to refuse delivery and/or request an alternative payment method; and
     • the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, MWW reserves the right to vary the Price with alternative Goods as per clause 2, subject to prior confirmation and agreement of both parties. MWW also reserves the right to halt all Services until such time as MWW and the Client agree to such changes. MWW shall not be liable to the Client for any loss or damage the Client suffers due to MWW exercising its rights under this clause.
   • 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.

 

1. Errors and Omissions
   • The Client acknowledges and accepts that MWW shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by MWW in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by MWW in respect of the Services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of MWW; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

1. Change in Control
   • The Client shall give MWW 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 MWW as a result of the Client’s failure to comply with this clause.

 

1. Price and Payment
   • At MWW’s sole discretion the Price shall be either:
     • as indicated on any invoice provided by MWW to the Client; or
     • MWW’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
   • MWW reserves the right to change the Price:
     • if a variation to the Goods which are to be supplied is requested; or
     • if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
     • if during the course of the Services, the Goods are not or cease to be available from MWW’s third party suppliers, then MWW reserves the right to provide alternative Goods; or
     • where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to any difficulties with obscured or other defect found on closer inspection, misdiagnosis in the first instance, accessing replacement parts for the Services, the transportation of the Goods the Client, etc.), which are only discovered on commencement of the Services; or
     • in the event of increases to MWW in the cost of labour or materials which are beyond MWW’s control.
   • Variations will be charged for on the basis of MWW’s quotation, and will be detailed in writing, and shown as variations on MWW’s invoice. The Client shall be required to respond to any variation submitted by MWW within ten (10) working days. Failure to do so will entitle MWW 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.
   • At MWW’s sole discretion a non-refundable deposit may be required.
   • Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by MWW, which may be:
     • on delivery of the Goods;
     • by way of instalments/progress payments in accordance with MWW’s payment schedule;
     • 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;
     • the date specified on any invoice or other form as being the date for payment; or
     • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by MWW.
   • Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and MWW.
   • MWW may in its discretion allocate any payment received from the Client towards any invoice that MWW determines and may do so at the time of receipt or at any time afterwards. On any default by the Client MWW may re-allocate any payments previously received and allocated. In the absence of any payment allocation by MWW, payment will be deemed to be allocated in such manner as preserves the maximum value of MWW’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
   • 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 MWW nor to withhold payment of any invoice because part of that invoice is in dispute.
   • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to MWW an amount equal to any GST MWW must pay for any supply by MWW under this or any other agreement for the sale of the Goods. 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.

 

1. Delivery of Goods
   • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
     • the Client or the Client’s nominated carrier takes possession of the Goods at MWW’s address; or
     • MWW (or MWW’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
   • At MWW’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
   • MWW may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
   • Any time specified by MWW for delivery of the Goods is an estimate only and MWW will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that MWW is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then MWW shall be entitled to charge a reasonable fee for redelivery and/or storage.

 

1. Risk
   • Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
   • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, MWW is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by MWW is sufficient evidence of MWW’s rights to receive the insurance proceeds without the need for any person dealing with MWW to make further enquiries.
   • If the Client requests MWW to leave Goods outside MWW’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
   • The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in MWW’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by MWW.
   • Where the Client has supplied any materials for MWW to complete the Goods and/or Services under this contract, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those materials. MWW shall not be responsible for any defects in the Goods, any loss or damage howsoever arising from the use of materials supplied by the Client.
   • The Client acknowledges that MWW is only responsible for Goods that are replaced by MWW and does not at any stage accept any liability in respect of previous services and/or parts supplied by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify MWW against any loss or damage to the Goods, or caused by the parts, or any part thereof howsoever arising.
   • The Client acknowledges and agree that where MWW has performed temporary repairs on the boat that:
     • MWW offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
     • MWW will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair required.
   • MWW shall not be liable for any defect in the Goods/Services if the Client does not follow MWW’s recommendations.
   • The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
   • While MWW will endeavour to match Goods the matching between new and existing Goods may not be exact due to wear and tear of existing parts.
   • The Client acknowledges and accepts that Goods supplied by MWW may:
     • exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. MWW will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
     • expand, contract or distort as a result of exposure to heat, cold, weather; and
     • mark or stain if exposed to certain substances; and
     • be damaged or disfigured by impact or scratching.
   • The Client acknowledges and agrees that MWW shall be entitled to:
     • retain any components replaced during the provision of the Services; and
     • the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.

 

1. Access
   • The Client shall ensure that MWW has clear and free access to the Client’s premises at all times to enable them to deliver, install or service the Goods/Services. In addition the Client shall provide MWW with any access codes, passwords or other information required in order to complete the Services whether delivered at the Client’s premises or by remote access.

 

1. Title
   • MWW and the Client agree that ownership of the Goods shall not pass until:
     • the Client has paid MWW all amounts owing to MWW; and
     • the Client has met all of its other obligations to MWW.
   • Receipt by MWW 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.
   • It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 1:
     • the Client is only a bailee of the Goods and must return the Goods to MWW on request;
     • the Client holds the benefit of the Client’s insurance of the Goods on trust for MWW and must pay to MWW the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
     • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for MWW and must pay or deliver the proceeds to MWW on demand;
     • the Client should not convert or process the Goods 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 MWW and must sell, dispose of or return the resulting product to MWW as it so directs;
     • the Client irrevocably authorises MWW to enter any premises where MWW believes the Goods are kept and recover possession of the Goods;
     • MWW may recover possession of any Goods in transit whether or not delivery has occurred;
     • the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of MWW;
     • MWW may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

1. Personal Property Securities Act 1999 (“PPSA”)
   • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
     • these terms and conditions constitute a security agreement for the purposes of the PPSA; and
     • a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to MWW for Services – that have previously been supplied and that will be supplied in the future by MWW to the Client.
   • The Client undertakes to:
     • sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which MWW may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
     • indemnify, and upon demand reimburse, MWW for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
     • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of MWW; and
     • immediately advise MWW of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
   • MWW and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
   • The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
   • Unless otherwise agreed to in writing by MWW, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
   • The Client shall unconditionally ratify any actions taken by MWW under clauses 1 to 10.5.
   • Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

1. Security and Charge
   • In consideration of MWW agreeing to supply the Goods, 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, 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 Client indemnifies MWW from and against all MWW’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising MWW’s rights under this clause.
   • The Client irrevocably appoints MWW and each director of MWW as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.

 

1. Defects
   • The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify MWW of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford MWW an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which MWW has agreed in writing that the Client is entitled to reject, MWW’s liability is limited to either (at MWW’s discretion) replacing the Goods or repairing the Goods.
   • Goods will not be accepted for return other than in accordance with 1 above, and provided that:
     • MWW has agreed in writing to accept the return of the Goods; and
     • the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
     • MWW will not be liable for Goods which have not been stored or used in a proper manner; and
     • the Goods 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.
   • MWW will not accept the return of non0defective Goods for credit.
   • Subject to clause 1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.

 

1. Warranty
   • Subject to the conditions of warranty set out in clause 2 MWW warrants that if any defect in any workmanship of MWW becomes apparent and is reported to MWW within ninety (90) days of the date of delivery (time being of the essence) then MWW will either (at MWW’s sole discretion) replace or remedy the workmanship.
   • The conditions applicable to the warranty given by clause 1 are:
     • the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
       • failure on the part of the Client to properly maintain any Goods; or
       • failure on the part of the Client to follow any instructions or guidelines provided by MWW; or
       • any use of any Goods otherwise than for any application specified on a quote or order form; or
       • the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
       • fair wear and tear, any accident or act of God.
     • the warranty shall cease and MWW shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without MWW’s consent.
     • in respect of all claims MWW shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
   • For Goods not manufactured by MWW, the warranty shall be the current warranty provided by the manufacturer of the Goods. MWW 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 Goods.
   • In the case of second hand Goods, 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 MWW as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. MWW shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

 

1. Consumer Guarantees Act 1993
   • If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by MWW to the Client.

 

1. Default and Consequences of Default
   • 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 MWW’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
   • If the Client owes MWW any money the Client shall indemnify MWW from and against all costs and disbursements incurred by MWW in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, MWW’s collection agency costs, and bank dishonour fees).
   • Further to any other rights or remedies MWW may have under this Contract, if a Client has made payment to MWW, 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 MWW under this clause 15 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.
   • Without prejudice to MWW’s other remedies at law MWW shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to MWW shall, whether or not due for payment, become immediately payable if:
     • any money payable to MWW becomes overdue, or in MWW’s opinion the Client will be unable to make a payment when it falls due;
     • the Client has exceeded any applicable credit limit provided by MWW;
     • 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
     • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

1. Cancellation
   • Without prejudice to any other remedies MWW may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions MWW may suspend or terminate the supply of Goods to the Client. MWW will not be liable to the Client for any loss or damage the Client suffers because MWW has exercised its rights under this clause.
   • MWW may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice MWW shall repay to the Client any money paid by the Client for the Goods. MWW shall not be liable for any loss or damage whatsoever arising from such cancellation.
   • In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by MWW as a direct result of the cancellation (including, but not limited to, any loss of profits).
   • Cancellation of orders for Goods 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.

 

1. Privacy Policy
   • All emails, documents, images or other recorded information held or used by MWW is Personal Information as defined and referred to in clause 3 and therefore considered confidential. MWW acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). MWW acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by MWW that may result in serious harm to the Client, MWW will notify the Client in accordance with the Act and/or the GDPR.  Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
   • Notwithstanding clause 1, privacy limitations will extend to MWW in respect of Cookies where transactions for purchases/orders transpire directly from MWW’s website.  MWW 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:
     • IP address, browser, email client type and other similar details;
     • tracking website usage and traffic; and
     • reports are available to MWW when MWW sends an email to the Client, so MWW may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via MWW’s website.   

• The Client authorises MWW or MWW’s agent to:
  • access, collect, retain and use any information about the Client;
    • (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
    • for the purpose of marketing products and services to the Client.
  • disclose information about the Client, whether collected by MWW from the Client directly or obtained by MWW 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.
• Where the Client is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 1993.
• The Client shall have the right to request MWW for a copy of the Personal Information about the Client retained by MWW and the right to request MWW to correct any incorrect Personal Information about the Client held by MWW.

 

1. Dispute Resolution
   • All disputes and differences between the Client and MWW touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.

 

1. Service of Notices
   • Any written notice given under this Contract shall be deemed to have been given and received:
     • by handing the notice to the other party, in person;
     • by leaving it at the address of the other party as stated in this Contract;
     • by sending it by registered post to the address of the other party as stated in this Contract;
     • 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;
     • if sent by email to the other party’s last known email address.
   • 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.

 

1. Trusts
   • 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 MWW may have notice of the Trust, the Client covenants with MWW as follows:
     • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
     • 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.
     • the Client will not without consent in writing of MWW (MWW will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
       • the removal, replacement or retirement of the Client as trustee of the Trust;
       • any alteration to or variation of the terms of the Trust;
       • any advancement or distribution of capital of the Trust; or
       • any resettlement of the trust property.

 

1. General
   • 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.
   • 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 Auckland Courts of New Zealand.
   • MWW 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 MWW of these terms and conditions (alternatively MWW’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
   • MWW may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
   • The Client cannot licence or assign without the written approval of MWW.
   • MWW 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 MWW’s sub-contractors without the authority of MWW.
   • The Client agrees that MWW 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 MWW to provide Goods to the Client.
   • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
   • 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.

 

Website Terms & Conditions

ONLINE T&Cs OVERVIEW
This website is operated by Marine Works. Throughout the site, the terms “we”, “us” and “our” refer to Marine Works. Marine Works offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 8 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 10 - PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy. To view our Privacy Policy.

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Marine Works, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 14 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Marine Works and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 15 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 16 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 17 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 18 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of New Zealand.

SECTION 19 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 20 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@marineworks.co.nz.