Terms and Conditions
These Terms and Conditions apply to all orders for the provision of Services and/or the supply of Goods to the Client. By signing these Terms and Conditions, agreeing the Scope of Work and/or allowing RCR to commence the provision of Services and/or the supply of Goods, the Client acknowledges and agrees that it shall be bound by the Sales Agreement.
1. DEFINITIONS
1.1 In these Conditions:
RCR means and includes Rob Croft Rigging Limited (a limited liability company under the companies Act 1993(NZ)), trading as Gulf Harbour Rigging.
RCR’s Personnel means any employees, agents, sub-contractors or consultants or other persons engaged by RCR to provide the Services.
Client means any entity to which RCR is to provide Services and/or Goods pursuant to a Sales Agreement.
Client’s Personnel means any employees, agents, sub-contractors, consultants, or other persons engaged by the Client from time to time (including captain, crew (to include permanent and temporary crew) and the owner’s representatives).
Disbursements mean the cost of any reasonable expenses incurred by RCR in the provision of the Services, which shall be payable by the Client at cost plus a 10% administration fee.
Goods mean any goods, parts, consumables, equipment, or other deliverables to be supplied by RCR to the Client.
Price means the price set out in the Quotation or Scope of Work, subject to adjustment in accordance with clause 7.
Quotation means any quotation or price estimate given by RCR for Services and/or Goods to be supplied and shall represent a budgetary estimate only. In any communications in connection with a Quotation, use of the term Estimate shall have the same meaning.
Sales Agreement means any agreement between RCR and the Client for the provision of Services and/or Goods incorporating these Conditions and the Scope of Work.
Scope of Work or Scope of Services means the description of the Services to be provided by RCR which shall comprise in final and agreed form the Scope of Work or Quotation submitted by RCR to the Client, and which may be delivered to the Client by email.
Services mean the services to be provided by RCR to the Client as detailed in the Scope of Work, including, where applicable, the supply of Goods, as the same may be amended in accordance with clause 6.
Vessel means the sailing yacht or motor vessel detailed in the Scope of Work in respect of which RCR will provide the Services.
1.2 In these conditions: RCR may make any changes to the Services:
– headings are for identification and indexing purposes only and shall not affect the construction or interpretation of these Conditions;
– words importing the singular shall include the plural and vice versa.
– working days are all days other than Saturdays, Sundays, and public holidays in the place of performance of the Services.
2. APPLICATION
2.1 All Sales Agreements for the provision of Goods or Services by RCR are made subject to the written terms of any quotation and to these conditions. They shall apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Client, in correspondence or elsewhere, or implied by trade, custom, practice or course of dealing.
2.2 Any Quotation by RCR is deemed to be an invitation to purchase on these terms and conditions.
2.3 No other terms, conditions or representations shall be implied or incorporated into a Sales Agreement unless set out in writing and signed by the director or authorised representative of RCR.
2.4 The Client shall ensure that all persons dealing with RCR in relation to the Sales Agreement have authority to do so, and RCR shall be entitled to treat all of the Client’s Personnel as authorised representatives of the Client who shall be entitled to bind the Client in relation to the Sales Agreement and any information or instructions issued by the Client’s Personnel shall be treated as if issued by the Client.
3. PROVISION OF SERVICES
3.1 Unless otherwise stated in a Quotation by RCR, any Quotation issued shall remain fixed for thirty (30) days from the date of issue, subject to the right of RCR to give written notice to the Client of its intention to revise or withdraw during such period.
3.2 The Client shall ensure that the terms of any Sales Agreement and/or Scope of Work are complete and accurate and suitable for its own requirements. The Client shall provide RCR with complete and accurate information in order for RCR to issue a Quotation.
3.3 RCR will provide Services to the Client in accordance with the Scope of Work.
3.4 The Services will begin on or about the estimated start date set out in the Sales Agreement and will continue until the provision of the Services is complete, unless otherwise terminated in accordance with clause 9.
3.5 Whilst RCR will use reasonable endeavours to meet any milestone dates or estimated timescale set out in the Sales Agreement, (to include but not limited to the estimated start date) such dates are approximate only, and time of performance is not of the essence of any Sales Agreement. RCR shall not be liable for any costs or losses incurred by the Client as a result of the Services not being carried out.
3.6 RCR will notify the Client when the Services are completed and/or the Goods are delivered. The Client will have [five (5) days] to inspect the Services or Goods and notify RCR of any problem, after which time the Services, Goods and/or Deliverables will be deemed to have been accepted by the Client
3.7 Unless there is a specific delivery date specified in the contract the Client shall be bound to accept the goods when notified by RCR in writing that they are ready for collection.
3.8 RCR reserves the right to make any delivery time or date subject to the performance by the Client of a particular or a specific action as set out in the Quotation or Sales Agreement and in the event of non-performance by the Client of such requirements RCR reserves the right to make changes to any delivery time or date set out in that quotation.
4. SUPPLY OF GOODS
4.1 The risk in any Goods shall pass to the Client upon leaving RCR’s premises and thereafter the cost of transportation, installation and insurances for the Goods shall be borne by the Client.
4.2 All Goods provided by RCR remain the property of RCR until all debts owed to RCR by the Client (for whatever reason) are paid in full by the Client to RCR and the property and goods shall not pass to the Client until such time as payment in full has been made.
4.3 RCR reserves the right to dispose of any Goods it holds until the Client has paid for them in full.
4.4 The Client shall not sell on or part with possession of the Goods and shall have no express or implied authority to make title to the Goods save with the express written consent of RCR until full payment has been made of all the sums due to RCR. The Client shall store the goods separately and clearly mark them as the property of RCR.
4.5 If, before payment is made, the Client becomes subject to any of the events listed in clause 9 then, without limiting any other right or remedy it may have, RCR may require the Client to deliver up all Goods in its possession and/or allow RCR to board the Vessel, or other premises where the Goods are stored in order to recover them.
4.6 The Client shall inspect the Goods on delivery and if the Goods are damaged or otherwise not in compliance with the Sales Agreement on delivery, unless the Client notifies RCR and the carrier within 2 (two) days of delivery, no claim against RCR may be made in respect of any damage to or short delivery of such Goods. Notwithstanding the foregoing, the Client shall be deemed to accept the Goods on delivery notwithstanding any late delivery by RCR.
4.7 RCR may arrange for any packing, transportation, and delivery of Goods at the Client’s request. If RCR agrees to provide the same to the Client, the Client shall pay all packing, transportation, delivery, insurance costs, customs duties and any other taxes which shall be treated as a Disbursement in addition to the Price. RCR shall select the most appropriate form of transportation in its discretion.
4.8 Any time or date stipulated in the Sales Agreement is only intended as an estimate and although RCR will make all reasonable efforts to effect delivery of goods within such timescale RCR shall not be liable for any loss or damage direct or indirect caused to the Client by late delivery.
5. SEPARABILITY
5.1 RCR reserves the right to provide the Services and/or supply the Goods by instalments whether or not this is stipulated in the relevant Sales Agreement.
5.2 Each provision of Goods or Services shall be deemed to constitute a separate contract to which these conditions and special terms of any quotation (including those related to payment) shall apply.
5.3 RCR reserves the right at its discretion to delay the provision of an instalment of Goods or Services beyond the time/and or date stipulated in a quotation, or Sales Agreement and the exercise of its discretion under this condition shall not entitle the Client to terminate any other instalment or treat the Sales Agreement as a whole as repudiated.
6. INSPECTIONS AND CHANGES TO THE SCOPE OF WORK or SCOPE OF SERVICES
6.1 During the provision of the Services and in particular once RCR has had the opportunity to inspect the condition of the Vessel, RCR may recommend and/or the Client may request changes or additions to the Services. In these circumstances, any changes or additions to the Services will be agreed in writing between the parties, such agreement not to be unreasonably withheld or delayed.
6.2 RCR reserves the right to amend any Quotation and/or Scope of Work in the event that on a full inspection of the Vessel, the Services and/or Goods required differ to those previously identified and/or as advised by the Client, or if the circumstances or instructions have otherwise changed.
6.3 RCR shall advise the Client of any change to the Price and the timescale for the provision of the Services following any changes to the Scope of Work or the inclusion of any additional Services, and any other terms and conditions particular to the provision of such changed or additional Services. If these are agreed, the additional services shall be deemed to be included in the definition of Services and shall be provided in all other respects in accordance with these Conditions.
6.4 RCR may make any changes to the Services:
i) needed to comply with applicable law or safety requirements; or
ii) which do not materially affect the nature or quality of the Services.
7. PRICE
7.1 The Price is exclusive of all Disbursements, and where applicable taxes, which the Client shall pay in addition to the Price.
7.2 All prices are based on current costs to RCR for labour and materials as at the date of Quotation. In the event of any unforeseen change in these costs RCR reserves the right to withdraw any discount or alter its prices accordingly.
7.3 All prices Quoted for Goods or Services to be supplied by RCR are ex works.
7.4 Where the Price includes the re-charge of parts or equipment or other goods which RCR sources from a third-party company, the Client shall bear the cost of any increase to the same between the date of the Sales Agreement and the date when RCR actually pays the third party for such parts or equipment or other goods.
7.5 RCR reserves the right to charge the Client for any charges including Disbursements outside the Price stated on the Quotation, in respect of any:
i) Goods and/or Services additional to those set out in the Scope of Work; and
ii) Services which have been based on assumptions set out in the Scope of Work, or otherwise agreed with the Client, or based on information provided by the Client (for example, the condition of the Vessel), which are subsequently found to be incorrect.
Such Services will be based on the RCR’s standard rates applicable at the time.
8. PAYMENT
8.1 Unless agreed otherwise and confirmed in the Scope of Work, a deposit of 50% of the Price will be payable at the time of the order. The balance shall be paid by cleared funds before shipment or on delivery as stipulated by the RCR invoice. If RCR agrees to payment terms which are different to those set out in this clause, payment shall be made in accordance with the agreed terms at the agreed intervals.
8.2 Where credit terms are agreed by RCR all payments shall be made by their due dates and the date of the relevant goods sales invoice shall be the date of commencement of any credit term agreed. Any extension of credit allowed to the Client may be changed or withdrawn at any time.
8.3 No payment shall be deemed to have been received until RCR has received cleared funds.
8.4 The Client shall make all payments due under the Sales Agreement in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
8.5 In the case of late payment, RCR reserves the right to:
i) Suspend the provision of Service or Goods, and/or
ii) charge the Client interest at 5% per annum above the base commercial overdraft interest rate of the BNZ bank from the time payment is due until such time as cleared funds (including accrued interest) are received in RCR’s account.
8.6 Any GST on invoices for goods or services supplied by RCR shall be payable at the time of payment of that invoice.
8.7 The Client accepts that on its failure to pay the amount owed in respect of supplied goods or service, it will pay to RCR all charges or costs including costs of a solicitor or other authority, incurred in the recovery of the amount outstanding.
8.8 If, in the opinion of RCR, the credit-worthiness of the Client deteriorates before the provision of the Services, RCR may require full or partial payment of the Price prior to commencing the Services or the provision of security for payment by the Client in a form acceptable to RCR.
8.9 Notwithstanding any other provisions of the Sales Agreement, all payments payable to RCR under the Sales Agreement shall become due immediately on its termination for whatever reason.
9. DEFAULT
9.1 If the Client does not make full payment by the due date, commits any substantial breach of a particular contract or makes or offers to make any composition with creditors or commits any act of bankruptcy or if (the Client being a company) any application or resolution to liquidate the company is passed or presented (other than for the purpose of a bona fide amalgamation or reconstruction) or if a receiver of the undertaking of assets of the business of the Client or any part or subsidiary thereof is appointed, then RCR shall be entitled:
9.1.1 to be paid in respect of any loss or damage caused to RCR by the breach of the Client and/or
9.1.2 to stop work on all contracts with the Client and to cease making deliveries to the Client of any goods whether or not the subject of any contracts between the Client and RCR and/or
9.1.3 at the option of RCR to cancel all contracts with the Client and remove and sell the goods giving credit for the proceeds of sale against the Clients liability to RCR under the contracts and/or
9.1.4 to call on the Client to deliver up to RCR all goods in the power, custody or possession of the Client in respect of which property is vested in RCR whether by virtue of these conditions or under the general law and the Client hereby irrevocably authorizes RCR to enter (using reasonable force if necessary) the premises or any other yacht, boat, ship or chattel belonging to the Client where such goods are situated for the purpose of taking possession of such goods and in order to do so may sever them from anything to which they may be attached and shall not be liable for any consequential damage thereby arising.
10. CANCELLATION
10.1 Where a contract has been made between the parties and the Client cancels or postpones its order or otherwise terminates its contract with RCR the Client shall be liable to compensate RCR to the extent of all costs and charges or other loss (including profit) incurred by RCR in obtaining special tools dies or jigs and any unfinished goods or product manufactured by RCR in fulfilment of the Client’s order. If RCR is able to dispose of these items subsequent to the Client having compensated RCR pursuant to these conditions the Client shall be credited with the amount received on the disposal up to but not exceeding the amount of compensation actually paid to RCR.
11. LIMITED WARRANTY
11.1 RCR warrants that the Services will be performed by appropriately qualified or experienced personnel with reasonable care and skill, and that the Goods will be supplied free of defects, in each case in accordance with the Scope of Work, and as amended in accordance with clause 6 provided that:
11.1.1 RCR shall be under no liability in respect of any defects arising from fair wear and tear, perils of the sea, corrosion, ultraviolet degradation, willful damage or negligence caused by the Client or the Client’s Personnel or guests of the Client using the Vessel, use of the Vessel in conditions that exceeds its tolerances and/or specification, failure to follow RCR’s instructions or any operating instructions provided by RCR, misuse or adjustment or alteration or repair of the Goods or Services without RCR’s prior written approval;
11.1.2 RCR shall be under no liability in respect of any defects caused by or occurring whilst the Vessel is racing, trialling or preparing for a race;
11.1.3 RCR shall be under no liability in respect of any defects caused by works carried out by the Client or by the Client’s Personnel or RCR’s Personnel when acting under the instructions of the Client’s Personnel;
11.1.4 RCR shall be under no liability in respect of any defects if the total Price for the Services and/or Goods has not been paid in full by the due date for payment, or if the Client fails to notify RCR in writing and in detail of any defect within the period specified in clause 3.6 or, if the defect would not have been apparent on reasonable inspection before acceptance of the Services or Goods, within five (5) days of its discovery;
11.1.5 where the Goods are subject to a warranty provided by a third party (manufacturer or supplier), RCR’s liability in respect of any defects shall in no circumstances exceed the scope, value, or extent of the aforesaid third-party warranty.
11.2 The Price and all other sums payable in respect of the Goods and Services shall remain due and payable by the Client notwithstanding that the Vessel may be under warranty from the Vessel’s builder, supplier or any other third party. Save in the event of prior written agreement to the contrary, the Client shall under no circumstance be entitled to require RCR to seek payment of its invoices from the aforesaid builder, supplier or other third party.
11.3 The warranty set out in clause 11.1 shall be valid for six (6) months for Services and twelve (12) months for Goods unless otherwise stated in the Sales Agreement.
11.4 In the event of a valid claim by the Client under clause 11.1, RCR shall investigate the claim and if liability is accepted by RCR under clause 11.1, RCR’s only obligation shall be to re-perform the Services and to repair or (at its option) replace any defective Goods.
11.5 RCR may require the Client, at its cost, to return any Goods to RCR for RCR to inspect and investigate any warranty claim.
11.6 All repair and replacement work shall be carried out by RCR during normal working hours at RCR’s site or premises. If the Vessel cannot reasonably be brought to the RCR’s site or premises, the work will be carried out at an alternative site nominated by the Client and approved by RCR, such approval not to be unreasonably withheld, provided that all reasonably incurred Disbursements and shall be paid for by the Client.
11.7 RCR shall not be responsible for shipping charges or for costs incurred in moving the Vessel to the place nominated for the warranty works.
11.8 RCR’s liability to the Client in respect of warranty claims shall under no circumstances exceed the Price for the Services and/or Goods.
11.9 Following acceptance by the Client of the Services and/or Goods, RCR shall be free of any and all liability for the same, except only for its limited warranty liability under this clause 6.
12. LIMITATION OF LIABILITY
12.1 In the case of each contract all liability of RCR to the Client whether in respect of negligence, breach of contract, misrepresentation or otherwise howsoever caused shall not exceed the price received by RCR for goods or services supplied to the Client under the contract and the Client shall indemnify RCR all liability to any third party.
12.2 RCR shall not be liable for any loss or damage to goods in transit.
12.3 RCR shall not be liable for any indirect or consequential loss whatsoever and howsoever arising and, but without prejudice to the generality of the forgoing shall not be liable for any injury, loss, expense, or damage arising out of the storage, application or use of any goods supplied.
12.4 The time limit for any and all claims against RCR under or in connection with the Sales Agreement (whether in contract, tort or otherwise) shall be a period of twelve (12) months from the delivery of the Goods and Services to the Client; all purported claims made after this time shall be deemed to have been waived by the Client absolutely.
13. EXCLUSION OF WARRANTIES
13.1 All express or implied terms, conditions, representations, or warranties in respect of goods and services supplied to the Client not stated in these conditions and capable of exclusion (whether statutory or otherwise) are hereby excluded.
13.2 RCR gives no warranties other than the warranties given under clause 11 above.
13.3 RCR provides no warranty in respect of rig checks or opinions expressed or not expressed that may subsequently result in direct or indirect loss by the Client.
14. STORAGE
14.1 If the Client fails to give proper instructions as to the delivery, or dispatch of Goods is delayed at the Client’s request, for more than 14 days after RCR has notified the Client that the goods are ready for dispatch RCR will be entitled to charge the Client for storage of the goods either at its own premises or to arrange storage elsewhere and all charges for storage removal and insurance (if applicable) shall be due and payable by the Client as if they had separately been set out in the Sales Agreement.
14.2 RCR shall have no liability for damage or loss to any Client property being stored by RCR for whatever reason.
15. INDEMNITY
15.1 If the Client supplies RCR with a design or other instructions in accordance with which work is to be carried out, or Goods specified in an order are to be manufactured or constructed, the Client shall indemnify RCR against all damages, costs and expenses arising out of the claim for infringement of any copyright, patent, trademark, registered design, or any similar right of any third party.
15.2 The Client shall further indemnify RCR in respect of any claim made against RCR in respect of any claims, costs or damages arising consequent upon the failure of the goods or other items which have been supplied arising out of the design or other instruction supplied by the Client.
16. SUB-CONTRACTING
16.1 RCR shall be entitled to subcontract the performance of its obligations under the Sales Agreement to experienced and competent subcontractors. No subcontracting by RCR shall in any way relieve it of its obligations under the Sales Agreement.
17. FORCE MAJEURE
17.1 Any contract may be cancelled or suspended in whole or in part by RCR (without liability on its part for loss or damage arising directly or indirectly from such cancellation or suspension) as a result or in consequence of a prospect or happening or result of any dispute Act of God, war, civil commotion, legislation, breakdown of machinery, inability to obtain supplies or to obtain raw materials, fuel, power or required transport or an inability to obtain any necessary import or other licenses or consents of any governmental authority or any other cause or circumstance beyond its control.
18. NON-SOLICITATION
18.1 The Client shall not, without the prior written consent of RCR, at any time from the date of the Sales Agreement until the expiry of twelve (12) months after the last date of provision of the Services, solicit or entice away from RCR or employ (or attempt to employ) any person who is, or has been, engaged as part of the RCR’s Personnel.
19. WAIVER
19.1 RCR shall not be deemed to have waived the protection of any of these conditions by reason of any indulgence given to the Client whether as to time or otherwise, or by the undertaking of any work for or any delivery of goods to the Client whether undertaken or delivered with or without knowledge of the facts giving rise to a reason to cease work or to cease deliveries.
20. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
20.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
i) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
ii) a security interest is taken in all goods previously supplied by RCR to the Client (if any) and all goods that will be supplied in the future by RCR to the Client.
20.2 The Client undertakes to:
i) sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which RCR may reasonably require to register a financing statement or financing charge statement on the Personal Property Securities Register.
ii) indemnify, and upon demand reimburse RCR for all expenses incurred in registering a finance statement or financing charge statement on the Personal Property Securities Register or releasing any Goods charged thereby;
iii) not register a financing charge statement or a charge demand without the prior written consent of RCR; and
iv) immediately advise RCR of any material change in its business practices of selling the Goods which would result in a change in the nature of the proceeds derived from such sales.
20.3 RCR and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
20.4 The Client waives their rights as a debtor under sections 116,120(2), 121,125,126,127,129,131 and 132 of the PPSA.
20.5 Unless otherwise agreed to in writing by RCR, the Client waives their right to receive a verification statement in accordance with section 148 of the PPSA.
20.6 The Client shall unconditionally ratify any actions taken by RCR under clauses 13.1 to 13.5
21. PRIVACY ACT 2020
21.1 All information provided to and collected by RCR will be stored and held in accordance with the Privacy Act 2020. All information provided will only be used for the purposes of completing the Sales Agreement, warranty services or after sales care.
21.2 Furthermore, the Client authorizes RCR to:
i) collect, retain and use any information about the Client for purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
ii) disclose information about the Client, whether collected by RCR from the Client directly or obtained by RCR 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.
21.3 The Client shall have the right to request RCR for a copy of the information about the Client retained by RCR and the right to request RCR to correct any incorrect information about the Client held by RCR.
21.4 At any time after the conclusion of the Service Agreement, the Client may request that, all data held by RCR be destroyed.
22. LAW AND DISPUTES
22.1 These conditions and any contract between RCR and the Client shall be governed and construed in accordance with the Laws of New Zealand and the Client and RCR shall submit to the exclusive jurisdiction of the courts of New Zealand. If any part of these conditions is rendered void or unenforceable at law that part shall be severable from the remainder of these conditions which shall remain in full force and effect.
ROB CROFT RIGGING LIMITED [Trading as GULF HARBOUR RIGGING]