Terms of service

These standard terms and conditions of trade (“terms and conditions”) apply to all goods and services and labour (“Goods”) sold or supplied or performed by Mount Marine Fabrication Ltd (“the Company”), or any subsidiary of it (“the seller”) to the purchases or recipient of such Goods (“the Customer”), unless the Company has agreed to vary them at the time of order.

The terms and conditions constitute the entire agreement between the parties and prevails over other communications between the parties be they oral or written, previous or contemporaneous unless otherwise expressly agreed in writing and signed by or on behalf of the Company (“agreement or contract”). 

Quotation

All quotations remain valid for 30 days from the date of the quotation unless otherwise specified and are subject to confirmation at the time of receipt (“the Quotation”). Acceptance of the Quotation is deemed to constitute acceptance of the terms and conditions. 

Prices quoted are for the quantity requested (“Price”). The Company may in its absolute discretion vary the price if the order quantity is different from that contained in the Quotation.

Any costs involved in returning the product, including but not limited to disassembly, alteration and transport shall be at the Customer’s expense.

Acceptance of Terms and Conditions

Any Goods supplied by the Company to the Customer will be supplied on these terms and conditions. If the Customer orders Goods, the Customer will be deemed to have accepted these terms and conditions.

The only circumstances where any variation to the terms and conditions will apply is where a duly authorized representative of the Company has expressly agreed in writing to that variation.

If you are in any doubt as to the current terms and conditions that apply to the Goods, contact the Company immediately.

Price and Payment

The Price of the Goods shall be that prevailing to the date of quotation but are subject to variations, extras, deletions, increase or decrease in material and applicable taxes incurred arising between the date of Quotation and the date of delivery or supply or performance of agreement.

Any variation in Price will be charged to the Customer’s account and the contract Price will be adjusted according to the amount of the variation.

Payment from the Customer for all Goods shall be made in full without any deductions, whether by way of set off, counter claim, or any other equitable claim (“Full Payment”):

· on the 20th of the month following the date of invoice; or

· by prior arrangement with the Company; or

· when the job is completed, in that particular order (“Due Date”).

An account is not deemed paid until funds from any bill of exchange have been irrevocably cleared into the Company’s bank account.

If Full Payment is not made by the Due Date, then the Customer may be charged interest at a rate of 2% per month or part month calculated

(i) daily until payment is received in full; and

(ii) the Company reserves the rights to add all costs of recovery, debt collection and related expenses and disbursements, including but not limited to solicitor client costs it may incur in the recovery or attempted recovery from the Customer on any overdue or unpaid account 

Delivery

The Company takes no liability for delays or defaults in delivery or transportation costs incurred, except when agreed to in writing.

The Customer shall inspect the Goods on delivery and shall within 5 (five) days of delivery or completion of work, notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with description or sample. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following notice and before use is made of them. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Customer shall be deemed to have accepted the Goods.

Risk of any loss, shortage, damage, theft or deterioration to the Goods shall be borne by the Customer from time of delivery of the Goods.

Construction Contracts Act

Each invoice tendered by the Company to the Customer is a Payment Claim issued under the Construction Contracts Act 2002 (“CCA”).

The Company reserves its right to take legal action against the Customer for failure to pay the invoice in full under the CCA.

Default: In the event that: any money payable to the Company becomes overdue, or in the Company’s opinion, the Customer will be unable to meet its payments as they fall due; or the Customer 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 has judgment entered against it or the Guarantor(s); or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; then without prejudice to the Company’s other remedies at will; the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.

The Company may in its discretion allocate any payment received from the Customer toward any invoice that the Company determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by the Company, payment shall be deemed to be allocated in such manner as preserves the maximum value of the supplier’s purchase money security interest in the Goods.

Customers obligation prior to insolvency or inability to pay in full

The Customer agrees to notify the Company immediately on any and all financial issues or events including but not limited to being served with a statutory demand, notice of claim, Statement of claim or Default notice or demand letter or any other legal document make payment for the work in progress or performed by the Company (“Notification”).

On Notification, the Company will then exercise its rights under clause 7 (d) and 7.2.

The Customer and its Directors and the Guarantor(s) acknowledge that they will be (personally) liable to the Company for any unpaid amount owing if the Customer defaults under clause 7 and fails to fulfil its obligation under clause 8.1.

Assignment

The Customer may not assign sub-let or transfer any rights or obligations implied in the contract without prior written consent of the Company.

Retention of Title

Ownership and title of the Goods remains with the Company until the purchased price and all other monies owing by the Customer, under the contract or any other contract to the Company, have been paid notwithstanding that the Goods may have already been delivered to the Customer. In the event that any Goods supplied by the Company are sold by the Customer prior to payment in full of any amount outstanding to the Company, the proceeds of such sale will be the property of the Company, and the Customer as the Company agent will hold the proceeds of such sale on trust on account of the Company 

Personal Property Security Act 1999

Upon assenting to the terms and conditions in writing, the Customer acknowledges and agrees that: the terms and conditions constitute a general security agreement for the purposes of the PPSA; and a security interest is taken in all Goods previously supplied by the Company to the Customer (if any), and all Goods that will be supplied in the future by the Company to the Customer during the continuance of the party’s relationship.

The Customer 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 the Company may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; 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; not register a financing change statement or a change demand without the prior written consent of the Company; give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice); and 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.

The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to the terms and Conditions. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 128, 129, 131 and 132 of the PPSA

Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

Liability

The Company shall not be liable for any loss of any kind whatsoever suffered by the Customer as a result of any breach of any of the Company’s obligations under the contract, including any cancellation of the contract or any negligence on the part of the Company, its servants, agents or contractors, nor shall the Company be liable for any loss, damage or injury caused to the Customer’s servants, agents, contractors, Customers, visitors, tenants, trespassers or other persons. The Customer shall indemnify the Company against any claim by any such person.

Notwithstanding anything else in the contract, the liability of the Company, arising from breach of any of the Company’s obligations under the contract, from any cancellation of the contract or from any negligence on the part of the Company, its servants, agents or contractors, shall be limited to damages which shall not in total exceed the contract price.

The Company shall not be required to match any specific description or colour, but will make every reasonable effort to match the any specific description or shade of colour if any is specified, and in no event shall the Company be obliged to make better than a commercial match of specific description or colour.

Force Majeure

The Company shall not be liable for failure or delay to perform any term of this contract, occasioned directly or indirectly, by any act of God, force of nature, natural or man-made event, labour restrictions or other causes whatsoever (whether similar or not to the forgoing) beyond the Company’s reasonable control. 

Guarantee

In the event the Customer is a company, the signatory(s) to the guarantee(s) personally guarantees payment owing and acknowledges that no indulgence, granting of time, waiver or forbearance to sue, winding up or bankruptcy whereby the guarantor(s) would be released as a surety in any way, releases the guarantor(s) from liability hereafter.

Consumers Guarantees Act 1993

It is agreed and acknowledged by the Customer that where the Goods supplied under the contract are for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 shall not apply Privacy Act 1993 and Privacy Code 2004 The Customer and any Guarantor agree that any information about them provided at any time to the Company may be used by the Company for any purpose connected with its business including (but not limited to) direct marketing, debt collection and credit reporting or assessment. The Company is authorised to provide such information to any external agency or party for credit information and assessment purposes and that agency or party is hereby authorised to use and continue to use such information as part of their business services.

The Company and the external agency or party may retain and/or use such information for as long as they see fit.

Severability

If any part, term or provision of terms and conditions is illegal, invalid or unenforceable, such part, term or provision shall be deemed deleted from any agreement implied.

Disputes

If any dispute arises between the Company and the Customer as to the interpretation or operation of any provision of, or the rights or obligations of either party under, the terms and conditions, the parties shall use their best endeavours in a spirit of good faith to resolve such dispute, but, if such resolution is not achieved within a reasonable period, either party may refer the matter in dispute to mediation. The mediator is to be appointed by the parties on agreement, or if they are unable to agree on that appointment, to be selected and appointed by the Company. Costs of the mediation shall be shared equally by the Company and the Customer.

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 services 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 Refund 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 details, please review our Refund 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 Mount Marine Fabrication LTD, 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 Mount Marine Fabrication LTD 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@mountmarine.co.nz