The Company agrees to perform repairs, reconstruction, modifications or any other work on the Vessel agreed to between the parties, and the Owner agrees to pay for such work, in accordance with the Terms and Conditions of this Contract.
1. SCOPE OF WORK
It is understood that the scope of work may change once work commences due to unforeseen and unanticipated structural, substrate or other hidden defects in the Vessel affecting completion and/or cost of the original scope and price of work. Under such circumstances work will cease until the parties agree in writing to proceed, or, if they do not agree to proceed, then this contract shall terminate upon one party giving the other notice in writing, and Owner shall pay any outstanding balance due for work and material provided to termination.
Except as otherwise provided in these Terms and Conditions, the following are excluded:
a) Any work beyond the Scope of Work specified.
b) Removal and reinstatement of all hardware and fittings
c) Adhesion problems with existing paintwork.
d) Storage, crane, scissor lifts, haulage, lifting fees and water-blasting.
e) Hidden or latent defects undiscoverable on inspection
f) Storage of associated fittings, beltings, rails, machinery or any other gear removed from the vessel unless stored within the Company’s shed.
3. PAYMENT TERMS
It is understood any indication as to price (these indications shall only be valid if in writing) for work to be performed under this contract is an estimate only. The actual cost of the scope of work, including any change orders, shall be charged on a time and material basis.
Initial Deposit: $ plus GST
Progress Payments: Monthly/Weekly payments of$ plus GST thereafter until completion of work.
Contractors: Any third-party sub-contracted work through the Company will be charged at cost plus 20%, plus GST.
Storage Charges: Daily storage charge for the Vessel while it is worked on and until it is removed upon final payment of all sums due under this Contract shall be as follows:
Inside the Company’s shed shall be $___________ per day.
Outside the Company’s shed shall be $____________ per day.
These prices vary depending on size and length of boat.
Payment on Invoice
Full payment of initial deposit and any progress payments are due on receipt of invoice, and no work will commence before payment is received. Payments are due within 7 business days after receipt of invoice. Full payment is due upon completion of work and prior to uplifting goods or launching of the Vessel. Full payment of any additional un-quoted invoices is due on receipt, e.g. removal or installation of fittings, corrosion work, or change orders.
The Owner agrees to pay interest at the rate of 2.5% per month on any overdue amounts.
All time for work under this Contract shall be charged at $85.00 per man hour, plus GST
All prices exclude GST and are in NZ$.
The Owner is liable for all costs incurred by the Company as a result of the Owner’s failure to pay on time, including but not limited, debt collection and legal costs on a full indemnity basis, and any costs whatsoever associated with the exercise of enforcement of the Company’s Remedies in Clause 9 below.
Times indicated for delivery and installation are estimates only and the Company shall not be liable for failure to deliver or install or for delay in delivery or installation arising from any cause whatsoever. The Owner shall not be relieved of any obligation to accept or pay for time and material by reason of any delay in deliver.
5. OWNER NONDISCLOSURE
The Owner has a duty to disclose to the Company all known defects pertaining to the condition or function of the Vessel prior to work commencing. The Owner shall be liable for such undisclosed defects and costs to remedy such defects.
6. OWNER CAUSED DELAYS
In the event of any delay in the completion of the Scope of Work or installation of machinery and/or materials caused by the Owner, including, but not limited to, failure to make progress payments, request for delay, failing to provide on-going instructions, or failing to be available or incommunicado to consult or advise the Company on issues regarding the Scope of Work, time and material and storage charges shall continue to accrue as if the Owner had not caused the delay.
In addition to any possessory lien which the Company may have over the vessel or other Goods or items on which the works have been carried out, the Company shall have a general lien over all other property of the Owner that comes into the possession of the Company for any reason until all amounts owing to the Company on any account whatsoever have been paid to the Company.
8. PERSONAL PROPERTIES SECURITIES ACT 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Owner acknowledges that:
a) these terms and conditions constitute a security agreement for the purposes of the PPSA.
b) a security interest is taken in all Goods previously supplied by the Company to the Owner (if any) and all Goods that will be supplied in the future by the Company to the Owner, and a security interest is taken in the Vessel on which work is being done.
The Owner 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 the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
b) Indemnify, and upon demand reimburse, the Company 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;
c) Not register a financing change statement to a change statement demand without the prior written consent of the Company; and
d) Immediately advise the Company 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.
e) Appoint the Company as there attorney for the Registration or Enforcement of any PPSR charge 3
The Company and the Owner agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Owner waives its rights as a debtor under sections 116,120(2), 121, 125, 126, 127, 129, 131 and 132of the PPSA.
Unless otherwise agreed to in writing by the Company the Owner waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Owner shall unconditionally ratify any actions taken by the Company under the above clauses.
9. SECURITY AND CHARGE
Despite anything to the contrary contained herein or any other rights the Company may have howsoever:
a) Where the Owner and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Owner and/or Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Owner and/or the Guarantor acknowledge and agree that the Company(or the Company’s nominee) shall be entitled to lodge where appropriate a caveat which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
b) Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Owner and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
c) The Owner and/or Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Owner’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to provisions of the above clauses.
Ownership of the Goods, Products, Materials of Equipment remains with the Company (whether the goods have been attached or built in to the boat or vessel) and does not pass until the Owner:
a) has paid the Company all amounts owing for the particular Goods and Services under this contract; and;
b) has met all their obligations due by the Owner to the Company in respect to all contracts between the Company and the Owner.
The parties do not intend that the Goods, Products, Materials of Equipment become part of the boat or vessel but, rather agree that the Goods, Products, Materials of Equipment shall at all times be capable of removal by the Company for non payment in accordance with these Terms and Conditions.
Receipt by the Company 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 recognized and until then the Company’s ownership or rights in respect of the Goods shall continue
All the original rights, powers and exemptions and remedies of the Company shall remain in force notwithstanding any neglect or forbearance or delay in the enforcement thereof. The Company shall not be deemed to have waived any condition, unless such waiver shall be in writing under the signature of the manager or director of the Company, and any each waiver unless the contrary shall be expressly stated, shall apply to and operate only in the particular transaction dealing or matter.
12. DEFAULT AND CONSEQUENCES OF DEFAULT
An “Event of Default” means an event where;
a) the Owner fails to comply with these terms and conditions or any other agreement with the Company; or
b) the Owner is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or
c) an event occurs or information becomes known to the Company, which in the Company’s opinion, might materially affect the Owner’s creditworthiness, the value of the Goods, the subject of the Security Interest, or the Owners ability or willingness to comply with its obligations under these terms and conditions or any other agreement with the company; or
d) any guarantor of the Owner’s obligations under these terms and conditions is in default under any agreement with the Company (in any capacity).
If an Event of Default occurs:
a) the Company may suspend or terminate any contract;
b) the amount owing shall immediately become due and payable notwithstanding that the due date has not arisen;
c) the Company may enforce the Security Interest; and
d) the Company may (without the consent of the Owner) appoint a receiver in respect to any Goods and any receiver is authorized to do anything referred to in these terms and conditions and otherwise to exercise all rights and powers conferred on a receiver by law. The Company will not be liable to the Owner for any loss or damage the Owner suffers because the Company has exercised its rights under this clause.
The Owner agrees that, at any time after an Event of Default has occurred and is continuing or at any time if any Goods are at the risk, the Company may:
a) take possession of any Goods; and/or
b) sell or otherwise dispose of any Goods and/or the Vessel and Deduct form the Proceeds of Sale the amount owing to the Company, 4
In each case in such manner and generally on such terms and conditions as it thinks fit, and, in each case otherwise do anything the Owner could do in relation to those Goods. The Company and the Owner agree that section 109(1) of the PPSA is contracted out of in respect of the particular Goods if, and only as long as, the Company is not the secured party with priority over all other secured parties in respect of those goods. As the Owner’s agent, the Company (and its employees and agents) may, without prior notice, enter any land or premises where the Goods are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so. The Owner agrees to procure all other rights (including consents) necessary to enable, and to indemnify the Company (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal. The Company may resell any of the Goods and apply the proceeds of sale in reduction of the Amount Owing.
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 the Company’s sole discretion such interest shall compound monthly at such a rate)after as well as before any judgment.
In the event that the Owner’s payment is dishonoured for any reason the Owner shall be liable for any dishonour fees incurred by the Company.
If the Owner defaults in payment of any invoice when due, the Owner shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
If the Owner fails to comply with any of these Terms and Conditions, the Company reserves the right to demand immediate payment in full of all accounts due under these Terms and Conditions. And pursuant to the Personal Property Securities Act 1999 (“PPSA”) the Company may at any time enter any building, premises, wharf or marina owned or occupied or used by the Owner to take possession of any product, labour or sub-contractors’ work which interest has been granted to this clause, or place a worker’s lien on the vessel until the account is paid. The company shall have the right to pass any charges or costs, including but not limited to registration fees, or registration of any security interests granted under these Terms and Conditions.
The Owner authorises the Company to use any photos taken of the boat or job in its advertising.
15. CHANGE ORDERS
The Owner without invalidating the Contract may order Changes in the Scope of Work consisting of additions, deletions, or modifications. All such changes in the work shall be authorised by written Change Order signed by the Owner. The cost or credit to the Owner from a change in the work shall be determined by mutual agreement between the Company and the Owner, and, in the event agreement cannot be reached either party may terminate the contract. Unless otherwise agreed, changes shall be charged or credited on a time and materials basis at $85.00 per hour plus GST , net of time and materials saved by not proceeding in accordance with original Scope of Work.
All claims are to be notified by the Owner in writing to the Company within 7 business days. No claim in respect of any work shall in any case exceed the invoice price of the good in respect of which any damage or expenses shall arise. All damage or expenses over and above such invoice price shall be the responsibility of the Owner.
17. LIMITATION OF REMEDIES
The Company, its principals, agents, employees, and/or subcontractors shall in no event be liable to the Owner, the officers, agents, employees, contractors or invitees of the Owner, or to any third party for any claims for loss or damage for any reason whatsoever, including for breach of warranty, or for negligence of any kind or strict liability in tort, for any incidental, contingent, special or consequential or commercial damages of the Owner (including loss of use and/or loss of profits and/or loss, damage or injury to any person or any other property, wreck removal, fines or damages arising out of spillage or oil or other pollutants) arising from or out of work performed and material, machinery and/or equipment provided by the Company under this Contract and/or the use or operation of, or in any way connected with, the property on which the work was performed by the Company, from whatever cause, whether arising from negligence or breach of this contract, or any other person even if the possibility of such damages is or was foreseeable by the parties hereto.
If any provision of these terms and conditions 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.
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 New Zealand.
The Owner shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Owner by the Company.
The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Owner of such change.
19. FORCE MAJEURE
If the Company by reason of any matter beyond its control including, without limitation, any act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi governmental restraint, expropriation, prohibition, intervention, embargo, unavailability or delay in availability of supplies, equipment or transport, refusal or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licenses, authorities or allocations is unable to perform in whole or in part any obligation under these terms and conditions, the Company shall be relived of that obligation under these terms and conditions to the extent and for the period that it is not reasonably able to perform and the Company shall not in any way be liable to the Owner in respect to such inability.
20. OWNER INDEMNIFICATION
To the extent permitted by law, the Owner indemnifies the Company against all actions, suits, claims, debts, obligations, and other liabilities arising out of this 5
Contract, or out of any act or omission of the Owner, the officers, agents, employees, contractors or invitees of the Owner, and the Owner agrees to compensate the Company for any loss or damage to the Company’s premises or property caused by, or resulting from the acts or omissions of the Owner or the officers, agents, employees, contractors or invitees of the Owner, including, but not limited to circumstances where the Owner, or the officers, agents, employees, contractors or invitees of the Owner works on the Vessel while on the Company’s premises.
Warranties are provided pursuant to the Consumer Guarantees Act. Warranties are only available in New Zealand. If the Vessel or Boat is used primarily for Business or Commercial Purposes the Consumer Guarantees Act Warranties shall not apply. In that event, the warranty shall be for six (6) months.
22. WARRANTY EXCLUSIONS
The Company is not liable for:
Any rust or corrosion re-appearing.
Environmental conditions which may cause delays and/or lack of quality due to said environmental conditions, including but not limited to: humidity, undertaking works outside in the rain, wind, dust, heat. The Company reserves the right to postpone works if the environmental conditions are not conducive, and shall not incur any liability for such delay pursuant to Delivery clause 4.
a) Hardstand, slip or sub-contractors charges, charter fees, mooring or berth fees.
b) Any substrates with adhesion problems, i.e. paint lifted when tape is removed.
c) Supervision or quality control of third parties, subcontractor
23. WRITTEN MODIFICATION ONLY
Any modification of this Contract must be in writing, signed by the party to be charged with such modification.
24. FULL AGREEMENT
This contract constituted the full and complete understanding between the parties in regard to the Scope of Work on the Vessel. No statement, oral or written, made prior to or at the signing hereof, shall vary, modify, or be used to interpret the written terms and conditions hereof. Titles and headings are for reference purposes only, and are not to be considered in any construction of this contract.
25. PERSONAL GUARANTEE
In the event the Owner is a corporation, trust or other legal entity limiting liability of its shareholders, trustees, settlers, beneficiaries, limited partners, or principals, the following individual personally guarantees performance of Owner under this Contract, and by his/her signature on this Contract make such guarantee.
SECURITY FOR COSTS
1. Nautique Limited has the right to lodge a caveat against the title to the land.
2. If the Owner or Guarantor is a company, in consideration of the Boat Building services provided under this Agreement the Owner and/or Guarantor irrevocably grants to each of the principals or directors of Nautique Limited:
2.1 an all obligations general security agreement (GSA) over all of the assets of the Company. For the avoidance of doubt this agreement shall constitute a security agreement for the purpose of section 36 of the Personal Property Securities Act 1999;
2.2 a power of attorney to execute on behalf of the Owner and/or the Guarantor a GSA over all assets of the company and to register the GSA under the Personal Property Securities Act 1999 to secure Westpark Boat Builder‘s unpaid fees and disbursements.
3. The principal sum under the mortgage or the GSA will be the amount of fees due by reference to the relevant tax invoice(s) and all disbursements and other charges together with interest at the rate set out in these Terms and Conditions. All costs of and incidental to the preparation of the mortgage or GSA, preparation of the caveat and all registration and other fees incurred by Nautique Limited (including incidental recovery costs) will be deemed to be included in the principal sum secured by the mortgage or GSA. The date of advance will be the date the costs were due for payment or any subsequent date nominated by Nautique Limited. Interest shall accrue on a daily basis.
4. The Guarantor authorises Nautique Limited to collect and hold personal information for the purposes of determining credit worthiness, debt collection purposes or any other related purpose.
5. It is confirmed that the Guarantor, has a right of access and may request correction of any personal information held by Nautique Limited about the Owner and the Guarantor respectively.