Terms and Conditions

TERMS AND CONDITIONS OF TRADE


  1. DEFINITIONS
    1.1“Customer” shall mean the Customer as set out in Schedule 1 of these Terms and Conditions and includes any person acting on behalf of and with the authority of the Customer.
    1.2 “Delivery” means the point at which the Goods are delivered to the Customer’s address as set out in Schedule 1 of these Terms and Conditions, unless Nautech has agreed with the Customer that the Goods are to be collected from Nautech’s premises, in which case ‘Delivery’ will be deemed to have occurred at the time the Customer has collected the Goods from Nautech’s premises.
    1.3 “Goods” shall have the same meaning as section 2 of the Sale of Goods Act 1908 and are the goods supplied by Nautech to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
    1.4 “GST” means Goods and Services Tax arising pursuant to the Goods and Services Tax Act 1985.
    1.5 “Guarantor” means that person (or persons) or entity that has agreed to be liable for the debts of the Customer on a principal debtor basis and who has entered into the Personal Guarantee & Indemnity in Schedule 3 of these Terms and Conditions.
    1.6 “Nautech” means Nautech Electronics Limited (NZBN: 9429038494345) and its successors and assigns and includes, where the context permits, any parent company of Nautech.
    1.7 “Order” means an order placed by a Customer with Nautech (whether in writing or orally) for the purchase and supply of Goods and/or Services.
    1.8 "PPSA” means the Personal Property Securities Act 1999.
    1.9 “Price” shall mean the cost of the Goods and/or Services as agreed between Nautech and the Customer subject to clause 4 of these Terms and Conditions.
    1.10 “Services” shall mean all services supplied by Nautech to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
    1.11 “Terms and Conditions” means these Terms and Conditions of Trade including all Schedules attached hereto.
    1.12 “Working Day” has the meaning given to it in the Property Law Act 2007

  2. APPLICATION OF TERMS AND CONDITIONS
    2.1 It is a condition of any Order that these Terms and Conditions are signed and returned to Nautech. Upon execution of these Terms and Conditions by the Customer, the Terms and Conditions are irrevocable and can only be rescinded in accordance with these Terms and Conditions or with the written consent of the director of Nautech.
    2.2 These Terms and Conditions apply to, are incorporated into, and govern every agreement between Nautech and a Customer for the supply of Goods and/or Services (regardless of whether the Customer has signed and returned these Terms and Conditions as required by clause 2.2 above).
    2.3 Any terms and conditions of the Customer will not apply to the supply of Goods and/or Services by Nautech unless Nautech specifically agrees otherwise in writing.
    2.4 Nautech may vary these Terms and Conditions at any time by notifying Customers of any amendments in writing or on its website at www.nautech.com.
    2.5 Where more than one Customer has entered into these Terms and Conditions, the Customers shall be jointly and severally liable to Nautech for all obligations of the Customer under these Terms and Conditions.

  3. GOODS / SERVICE
    3.1 All Orders are subject to acceptance by Nautech. An Order will not come into effect until Nautech has confirmed to the Customer that it agrees and accepts the specific items, the Price, and the delivery details of the Order.
    3.2 The Goods and/or Services to be supplied by Nautech are as set out in the correspondence between the Customer and Nautech and as agreed and accepted by Nautech pursuant to clause 3.1 above.
    3.3 Delivery of Goods in volume from Nautech to the Customer may be subject to discrepancies of a margin of 5% over or under. Unless otherwise agreed in writing, this margin shall be charged or deducted respectively on a pro rata basis.

  4. PRICE AND PAYMENT
    4.1 At Nautech’s sole discretion the Price shall be either:
       (a) As indicated on invoices provided by Nautech to the Customer in respect of Goods and/or Services supplied; or
       (b) Nautech’s current Price at the date of delivery of the Goods and/or Services according to Nautech’s current Price list; or
       (c) Subject to clause 4.2, Nautech’s quote/estimate Price, which shall be binding upon Nautech, provided that the Customer shall accept in writing Nautech’s quotation within 30 days from the date the Customer has received such quote/estimate.
    4.2 Any variation from the plan of scheduled work or specification will be charged for on the basis of Nautech’s quotation/estimate Price and will be shown as extras on Nautech’s invoice to the Customer. Payment for extras must be made in full at the time Nautech’s invoice is due and payable.
    4.3 Nautech reserves the right, at its sole discretion, to require the Customer to pay a deposit for the Order for an amount equivalent of up to 50% of the Price. The deposit, if required at the time of Nautech’s acceptance of the Order, shall become immediately due and payable by the Customer to Nautech.
    4.4 Unless expressly included in any quotation/estimate given by Nautech, Prices exclude any shipping and handling fees and charges applicable to the Delivery which are payable by the Customer in addition to the Price.
    4.5 Unless expressly included in any quotation/estimate given by Nautech, Prices are exclusive of GST and any other applicable taxes and duties which, where applicable, are payable by the Customer in addition to the Price.
    4.6 Unless otherwise agreed in writing by Nautech, payment for the Goods and/or Services must be made without deduction or set off within seven (7) days following the date of Nautech’s invoice.
    4.7 If the Customer has submitted a Credit Application as set out in Schedule 3 of these Terms and Conditions, and such Credit Application has been approved by Nautech, payment for the Goods and/or Services shall be due on the 20th of the month following the date of Nautech’s invoices.

  5. Payment must be made by cash, bank cheque or direct credit, or any other method as agreed to between Nautech and the Customer.

  6. DELIVERY OF GOODS
    6.1 Delivery of the Goods will be made to the Customer’s address as set out in Schedule 1 of these Terms and Conditions, unless Nautech has otherwise agreed with the Customer that the Goods will be collected from Nautech’s premises. The Customer shall make all arrangements necessary to take Delivery of the Goods at the scheduled time.
    6.2 The failure of Nautech to complete Delivery shall not entitle either party to treat these Terms and Conditions as repudiated.
    6.3 Nautech may make Delivery of the Goods by separate instalments (in accordance with an agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions of these Terms and Conditions.

  7. WARRANTY
    7.1 Subject to clauses 7.2, 7.3 and 7.4 below, Nautech warrants to repair or replace any defect in the materials and/or workmanship of the Goods for a period of twelve (12) months from the date of Delivery of the Goods.
    7.2 The warranty given by Nautech in clause 7.1 above does not include any of the following:
       (a) any defect which may be caused or partly caused by or arise through:
          (i) failure on the part of the Customer to properly maintain any Goods; or
          (ii) failure on the part of the Customer to follow any instructions or guidelines provided by Nautech in respect of the Goods; or
          (iii) any use of the Goods otherwise than for any application specified by Nautech; or
          (iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
          (v) failure of components found to be counterfeit,
       (b) any damage to the Goods whatsoever or however caused (whether deliberate, by accident, or an act of God and whether caused by the Customer or any third party);
       (c) any fair wear and tear to the Goods;
       (d) any defect in the materials and/or workmanship of the Goods that is notified by a Customer to Nautech after the expiry of twelve (12) months from the date of Delivery of the Goods.
    7.3 Nautech gives no warranties in relation to the Goods or materials or components of the Goods that are manufactured by third parties. In such a case, the warranty shall be the current warranty provided by the third party manufacturers. Where possible, Nautech will assign the rights and benefits of any warranties given by third party manufacturers. If Nautech is unable to assign the rights and benefits of any third party warranties, then Nautech will enforce such rights and benefits on behalf of the Customer.
    7.4 The warranty in clause 7.1 above shall cease and Nautech shall thereafter in no circumstances be liable under the terms of the warranty if the materials and/or workmanship of the Goods is repaired, altered or overhauled without Nautech’s consent.
    7.5 In no circumstances will Nautech be liable to compensate the Customer for any costs or losses incurred by the Customer in the repair or replacement of Goods or in assessing a Customer’s claim.
    7.6 Any warranty claim after sample testing and acceptance by the Customer will be at the sole discretion of Nautech.
    7.7 If, during the warranty period applicable to the Goods, Nautech receives written notice from the Customer of a defect in materials and/or workmanship in relation to the Goods that is covered by the warranty given in clause 7.1 above, Nautech will (at its sole discretion) either repair or replace to the Goods. The Customer will pay the shipping and handling fees and charges for the return of the Goods to Nautech. Nautech will pay the shipping and handling fees and charges for the return of the repaired or replaced Goods to the Customer at the Customer’s address set out in Schedule 1. Nautech will not be liable for any shipping and handling fees and charges beyond that which is applicable to the return of the repaired or replaced Goods direct to the Customer. In no circumstances will Nautech be liable for any costs, charges or fees that may be incurred by the Customer in transporting the repaired or replaced Goods to any purchaser of the Customer.
    7.8 If any Goods have been repaired or replaced by Nautech in accordance with this clause 7 within three (3) months of the expiry of the warranty period that is applicable to the Goods, then Nautech’s warranty term as set out in clause 7.1 above will be extended for a further three (3) months from the date that the repaired or replaced Goods are returned to the Customer.
    7.9 Except as expressly provided in these Terms and Conditions, to the extent permitted by law, no other warranties or representations either express or implied apply to the Goods. The Customer acknowledges and agrees that the Goods have been purchased for use in trade and accordingly, the Consumer Guarantees Act 1993 does not apply to the supply of the Goods by Nautech.

  8. DEFAULT & CONSEQUENCES OF DEFAULT
    8.1 If the Customer fails to make payment of Nautech’s invoice by the due date for payment (as specified in clauses 4.6 and 4.7 above), Nautech may in its sole discretion (and without prejudice to any other rights and remedies available to it) charge the Customer default interest on any amount outstanding at 5% per month accruing on a daily basis from the due date for payment until the date payment is made in full.
    8.2 If the Customer defaults on payment of any invoice when due, the Customer shall indemnify Nautech from and against all of Nautech’s costs, fees and charges (including on a solicitor and own client basis) and in addition all of Nautech’s nominees cost of collection.
    8.3 Without prejudice to any other remedies Nautech may have, if at any time the Customer is in breach of any obligations (including those relating to payment) Nautech may suspend or terminate the supply of Goods to the Customer and any of Nautech’s other obligations under the Terms and Conditions, or cancel any Credit Application that has been approved. Nautech will not be liable to the Customer for any loss or damage the Customer suffers because Nautech exercised its rights under this clause.
    8.4 If any account remains unpaid at the end of the second month following Delivery of the Goods and/or Services, then an immediate amount shall be levied for administration fees which sum shall become immediately due and payable by the Customer in addition to default interest payable under clause 8.1 above.
    8.5 In the event that:
       (a) any money payable to Nautech becomes overdue, or in Nautech’s opinion the Customer will be unable to meet its payments as they fall due; or
       (b) 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
       (c) 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 any other rights or remedies of Nautech at law or in equity:
       i. Nautech shall be entitled to cancel all or part of the Order of the Customer which remains unperformed; and
       ii. all amounts owing to Nautech shall, whether or not due for payment, immediately become due and payable.

  9. TITLE AND RISK
    9.1 Title and property in the Goods shall not pass to the Customer until:
       (a) the Customer has paid all amounts owing for the particular Goods; and
       (b) the Customer has met all other obligations due by the Customer to Nautech under these Terms and Conditions.
    9.2 It is further agreed that:
       (a) until such time as ownership of the Goods shall pass from Nautech to the Customer, Nautech may give notice in writing to the Customer to return the Goods or any of them to Nautech. Upon such notice, the rights of the Customer to obtain title, ownership or any other interest in the Goods shall cease.
       (b) If the Customer fails to return the Goods to Nautech then Nautech or Nautech’s agent may enter upon and into land and premises owned or occupied or used by the Customer or at any premises as the invitee of the Customer to where the Goods are situated and take possession of the Goods without being responsible for any damage caused.
    9.3 Despite that Nautech may have retained title and property in the Goods, all risk associated with the Goods will pass to the Customer upon Delivery.
    9.4 If any of the Goods are damaged or destroyed prior to title and property in them passing to the Customer, Nautech shall be entitled, with prejudice to any of its other rights to remedies under these Terms and Conditions (including the right to receive payment of the balance of the Price of the Goods) to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these Terms and Conditions. The execution of these Terms and Conditions by the Customer shall be sufficient evidence of Nautech’s rights to receive the insurance proceeds without the need for any person dealing with Nautech to make further enquiries.

  10. PERSONAL PROPERTY SECURITIES ACT 1999
    10.1 Upon Nautech’s acceptance of an Order (and regardless of whether the Customer has executed these Terms and Conditions) the Customer acknowledges and agrees:
       (a) these Terms and Conditions constitute a security agreement for the purpose of the PPSA; and
       (b) a first ranking security interest is taken by Nautech in all Goods previously supplied by Nautech to the Customer and all Goods that will be supplied in the future by Nautech to the Customer during the continuance of the parties relationship.
    10.2 The Customer further acknowledges and accepts that Nautech may register a security interest in the Goods and in all of the Customer’s present and further rights in relation to the Goods on the Personal Property Securities Register established pursuant to the PPSA. The Customer shall provide all information and do all things which Nautech may reasonably require to register and perfect a first ranking security interest in favour of Nautech over the Goods on the Personal Property Securities Register.
    10.3 The Customer shall indemnify and upon demand reimburse Nautech for all expenses incurred in registering a financing statement or financing charge statement on the Personal Properties Security Register or releasing any Goods charged thereby.
    10.4 The Customer shall not permit the registration of any financing charge statement or a charge demand or any other security over the Goods without the prior written consent of Nautech.
    10.5 The Customer shall give Nautech not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name or contact details or in the Customer’s management or ownership structure.
    10.6 The Customer will immediately give advice to Nautech 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.
    10.7 Nautech and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
    10.8 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127,129, 131 and 132 of the PPSA.
    10.9 Unless otherwise agreed to in writing by Nautech the Customer waives its rights to receive a verification statement in accordance with section 148 of the PPSA.
    10.10 The Customer unconditionally ratifies any action taken by Nautech under and by virtue of the rights given by the Customer to Nautech under this clause 10.

  11. SECURITY & CHARGE
    11.1 Despite anything to the contrary contained herein or any other rights which Nautech may have howsoever:
       (a) Where the Customer and the Guarantor (if any) is the owner of land, realty and or other asset capable of being charged, both the Customer and or the 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 Nautech or Nautech’s nominee to secure all amounts and other monetary obligations payable under these Terms and Conditions. The Customer and/or the Guarantor acknowledge and agree that Nautech (or Nautech’s nominee) shall be entitled to lodge where appropriate a caveat and that caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
       (b) Should Nautech elect to proceed in any manner in accordance with this clause 11, the Customer and Guarantor (if any) shall indemnify Nautech from and against all of Nautech’s costs and disbursements including legal costs on a solicitor and own client basis.
       (c) To give effect to the provisions of clauses 11.1(a) and (b) above, the Customer and the Guarantor (if any) do hereby irrevocably nominate constitute and appoint Nautech or Nautech’s nominee as the true and lawful attorney of the Customer and the Guarantor (if any) to execute mortgages and charges (whether registerable or not) including such other Terms and Conditions as Nautech and or Nautech’s nominee shall see if in his/her/ its/ their absolute discretion against the joint and or several interest of the Customer and the Guarantor in any land realty or asset in favour of Nautech and in the name of the Customer and the Guarantor (if any) as may be necessary and other acts including instituting any necessary legal proceedings and further to execute all or any documents in Nautech’s absolute discretion which may be necessary or advantageous to give effect to the position of this clause.

  12. INTELLECTUAL PROPERTY
    12.1 Where Nautech has designed the Goods or any component or element of the Goods for the Customer, then the intellectual property in those designs and drawings shall remain vested in Nautech until such time as Nautech has received payment of the Goods in full in accordance with these Terms and Conditions, at which time the intellectual property in the designs and drawings shall pass to the Customer.
    12.2 Where any designs or specifications have been supplied by the Customer to Nautech for the manufacture, processing, assembly and/or supply of the Goods by Nautech, then the Customer warrants to Nautech that such use by Nautech does not infringe the rights of any third party.
    12.3 The Customer warrants to Nautech that any designs, specifications or instructions to Nautech will not cause Nautech to infringe any patent registered design or trademark in the execution of the Customer’s Order.
    12.4 The Customer shall indemnify and hold harmless Nautech and its directors, officers, managers and employees (and that of any parent company of Nautech including the parent company itself) from and against any and all claims, costs, damages, losses, liability and expenses arising out of or in connection with any breach by the Customer of the warranties set out in clauses 12.2 and 12.3 above.

  13. CANCELLATION
    13.1 Nautech may cancel these Terms and Conditions or cancel delivery of the Goods and/or Services at any time before Delivery of the Goods by giving written notice. On giving such notice Nautech shall promptly repay the Customer any sums paid in respect of the Price for the Goods and/or Services. Nautech shall not be liable for any loss or damage arising from such cancellation.
    13.2 If the Customer cancels any Order prior to Delivery, the Customer will be liable for all costs incurred by Nautech in respect of such Order up to the time of cancellation. No cancellations will be accepted following Delivery of an Order and the Customer will be liable for the full Price of such Order.

  14. EXCESS STOCK
    14.1 Without limiting clause 13.2 above, where Nautech has excess stock that cannot be returned to its supplier(s) as a result of a variation to an Order requested by a Customer or the cancellation of an Order (or on-going Order) by a Customer, then the Customer shall purchase the excess stock from Nautech at the price Nautech paid for it plus a handling margin of 10%.

  15. PRIVACY ACT 1993
    15.1 The Customer and the Guarantor (if any) authorise Nautech to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing any Goods and services provided by Nautech to any other party.
    15.2 The Customer authorises Nautech to disclose any information obtained to any person for the purpose set out in clause 15.1 above.
    15.3 Where the Customer is a natural person the authorities (under clauses 15.1 and 15.2 above) are authorities or consents for the purpose of the Privacy Act 1993.

  16. CUSTOMER’S DISCLAIMER
    16.1 The Customer hereby disclaims any right to rescind or cancel any Order or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by Nautech, and the Customer acknowledges and agrees that the Customer has purchased the Goods relying solely on the Customer’s own skill and judgement and that Nautech shall not be bound by nor be responsible for any term, condition, representation or warranty other than the warranties expressly given in these Terms and Conditions.

  17. NAUTECH’S RIGHT TO DISPOSE OF GOODS
    17.1 In the event that:
       (a) Nautech retains possession or control of the Goods; and
       (b) payment of the Price is due to Nautech; and
       (c) Nautech has made demand in writing to the Customer for payment of the Price of the Goods; and
       (d) Nautech has not received the Price of the Goods,
    then, whether the title and property in the Goods has passed to the Customer or has remained with Nautech, Nautech may dispose of the Goods and may claim from the Customer the loss to Nautech on such disposal.

  18. LIEN
    18.1 Where Nautech has not received or been tendered the whole of the Price, or the payment has been dishonoured, Nautech shall have:
       (a) a lien on the Goods;
       (b) the right to retain them for the Price while Nautech is in possession of them;
       (c) a right of stopping the Goods in transit whether or not Delivery has occurred or title and property has passed;
       (d) a right of resale of the Goods;
       (e) the foregoing right of disposal, provided that the Lien of Nautech shall continue despite the commencement of proceedings or judgement for the Price having been obtained.

  19. LIMITATION OF LIABILITY
    19.1 To the extent permitted by law, Nautech and its directors, officers, managers and employees (and that of any parent company of Nautech including the parent company itself) will not be liable to the Customer for any loss or damage whatsoever or however caused arising directly or indirectly in connection with the Customer’s purchase and use of the Goods.
    19.2 In no event will Nautech and its directors, officers, managers and employees (and that of any parent company of Nautech including the parent company itself) be liable to the Customer for special, incidental, indirect or consequential loss or damage (including, without limitation, downtime costs, loss of data, restoration costs, or loss of profit, business revenue, good will or anticipated savings) regardless of whether such claims are based on contract, tort, warranty or any other legal theory.
    19.3 If any limitation of liability or exclusion contained in these Terms and Conditions is held to be invalid for any reason and in any event if Nautech becomes liable for any loss or damage that may lawfully be limited, then Nautech’s liability in any twelve (12) month period for any and all such loss or damage shall be limited to an amount equal to all sums paid by the Customer to Nautech pursuant to these Terms and Conditions during that twelve (12) month period.

  20. DISPUTES
    20.1 Any dispute or difference between Nautech and the Customer that arises under, or in connection with, these Terms and Conditions must be determined as follows:
       (a) The dispute or difference shall be referred to the persons for the time being who hold a directorship or senior management position within each party (“Senior Persons”). The Senior Persons must endeavour in good faith to resolve the dispute or difference within ten (10) Working Days of the matter being referred to them.
       (b) If, after ten (10) Working Days of the matter being referred to the Senior Persons, the dispute or difference has not been resolved by the Senior Persons, then the parties will endeavour in good faith within a further ten (10) Working Days to appoint a mediator to resolve the dispute or difference.
    20.2 Neither party will commence legal proceedings against the other (except for injunctive relief) before following the procedure set out in clauses 20.1(a) and (b) above.

  21. GENERAL
    21.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand Courts in respect of all matters relating to or arising out of these Terms and Conditions.
    21.2 If any provision of these Terms and Conditions is determined to be invalid, void, illegal or unenforceable, then such provision shall be construed as nearly as possible to reflect the intention of the invalid, void, illegal or unenforceable provision, and all other provisions of these Terms and Conditions shall remain in full force and effect.
    21.3 The Customer shall not set off against the Price any amounts due from Nautech.
    21.4 Neither party shall be liable for any breach of these Terms and Conditions or for any inability by a party to perform its obligations under these Terms and Conditions due to any act of God, terrorism, war, earthquake, strike, lock out, industrial action, flood, storm, civil commotion, inability to obtain products or supplies including the imposition of any export or import bans, any Government direction or regulation, or other event beyond the reasonable control of either party.
    21.5 The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions.
    21.6 Nautech may assign or transfer any of its rights or obligations under these Terms and Conditions at any time. The Customer may not assign or transfer any of the Customer’s rights or obligations under these Terms and Conditions without the prior written consent of Nautech.
    21.7 Nautech shall not be liable for any errors or omissions in the Goods and/or Services arising from oversight or a misinterpretation of any verbal instructions given by the Customer.
    21.8 None of Nautech’s employees, agents or representatives are authorised to make any representations, statements, conditions or agreements that have not been expressed by the director of Nautech in writing, nor is Nautech bound by any such unauthorised representations, statements, conditions or agreements.
    21.9 No joint venture, partnership, employment or agency relationship exists between Nautech and the Customer as a result of these Terms and Conditions or the Customer’s purchase and use of the Goods and/or Services.
    21.10 The failure or delay of Nautech to enforce any right or provision in these Terms and Conditions or in any other specific terms agreed by the parties shall not constitute a waiver of such right or provision unless acknowledged and agreed by Nautech in writing.