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MARINE AND INDUSTRIAL DIESELS LIMITED: TERMS OF TRADE 

  1. DEFINITIONS

“Marine and Industrial Diesels” shall mean Marine and Industrial Diesels Limited, or any agents or employees thereof.

“Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person contracting Products and Services from Marine and Industrial Diesels.

“Products” shall mean:

Products of the general description specified on the front of this agreement and supplied by Marine and Industrial Diesels to the Customer and

all Products supplied by Marine and Industrial Diesels to the Customer and

all inventory of the Customer that is supplied by Marine and Industrial Diesels, and

 all Products supplied by Marine and Industrial Diesels and further identified in any invoices issued by Marine and Industrial Diesels to the Customer, which invoices are deemed to be incorporated into and form part of this agreement and

 all Products that are marked as having been supplied by Marine and Industrial Diesels or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Marine and Industrial Diesels, and

all of the Customers present and after-acquired Products that Marine and Industrial Diesels has performed work on or to or in which goods or materials supplied or financed by Marine and Industrial Diesels have been attached or incorporated.

The above descriptions may overlap but each in independent of and does not limit the others.

“Products and Services” shall mean all products, goods, services and advice provided by Marine and Industrial Diesels to the Customer and shall include without limitation the supply of engine parts, repairs, servicing and breakdown services and all charges for time and attendances, hire charges, insurance charges, or any fee or charge associated with the supply of Products and Services by Marine and Industrial Diesels to the Customer.

“Price” shall mean the cost of the Products and Services as agreed between Marine and Industrial Diesels and the Customer and includes all disbursements e.g. charges Marine and Industrial Diesels pay to others on the customer’s behalf subject to clause 4 of the contract.

ACCEPTANCE

Any instructions received by Marine and Industrial Diesels from the Customer for the supply of Products and Services shall constitute a binding contract and acceptance of the terms and conditions contained herein.

 

COLLECTION AND USE OF INFORMATION

The Customer authorizes Marine and Industrial Diesels to collect, retain and use any information about the Customer for the purpose of assessing the Customer’s credit worthiness, enforcing any rights under the contract or marketing any Products and Services provided by Marine and Industrial Diesels to any other party. Such information will be accessible to the Customer and subject to correction.

The Customer authorises Marine and Industrial Diesels to disclose any information obtained to any person for the purposes set out in clause 3.1 although such authorisation may be withdrawn by the Customer at any time.

Where the Customer is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.

PRICE

Where no price is stated in writing or agreed to orally the Products and Services shall be deemed to be supplied at the current amount as such Products and Services are supplied by Marine and Industrial Diesels at the time of the contract.

The price may be increased by the amount of any reasonable increase in the cost of supply of the Products and Services that is beyond the control of Marine and Industrial Diesels between the date of the contract and the supply of the Products and Services.

PAYMENT

Payment of Products and Services shall be made in full on or before the 20th day of the month following the date of the invoice or the payment claim (“the due date”).

Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.

Any expenses, disbursements and legal costs incurred by Marine and Industrial Diesels in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable legal fees or debt collection agency fees.

A deposit may be required.

QUOTATION

Where a quotation is given by Marine and Industrial Diesels for Products and Services:

Where Products and Services are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products and Services.

  1. Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue; and

    The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary.

    Marine and Industrial Diesels reserve the right to alter the quotation because of circumstances beyond its control.

 

RISK

The Products are at the Customers risk when Marine and Industrial Diesels gives possession of the Products directly to the Customer or possession of the Products is given to a carrier, courier or other bailee for purposes of transmission to the Customer. The Customer is therefore responsible for insurance.

The time agreed for delivery shall not be an essential term of this contract unless the Customer gives written notice to Marine and Industrial Diesels making time of the essence.

TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)

Title in any Products supplied by Marine and Industrial Diesels passes to the Customer only when the Customer has made payment in full for all Products provided by Marine and Industrial Diesels and of all other sums due to Marine and Industrial Diesels by the Customer on any account whatsoever.

Until all sums due to Marine and Industrial Diesels by the Customer have been paid in full, Marine and Industrial Diesels has a security interest in all Products supplied by Marine and Industrial Diesels to the Customer.

If the Products are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title on the Products shall remain with Marine and Industrial Diesels until the Customer has made payment for all Products and where those Products are mixed with other property so as to be part of or a constituent of any new Products, title to these new Products shall deemed to be assigned to Marine and Industrial Diesels as security for the full satisfaction by the Customer of the full amount owing between Marine and Industrial Diesels and Customer.

The Customer gives irrevocable authority to Marine and Industrial Diesels to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer or before default if Marine and Industrial Diesels believes a default is likely and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated. Marine and Industrial Diesels shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Marine and Industrial Diesels may either resell any repossessed Products and credit the Customer's account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and credit the Customer’s account with the invoice value thereof less such sum as Marine and Industrial Diesels reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

Where Products are retained by Marine and Industrial Diesels pursuant to clause 8.4 the Customer agrees to waive the right to receive the specified notices required under sections 114(1)(a), 116 and 120 of the Personal Property Securities Act 1999 (“the Act”) and agrees to waive the right to object under s. 121 of the Act.

The Customer also agrees to waive its right to receive a verification statement in accordance with section 148 of the Act.

The following shall constitute defaults by the Customer;

If the Credit (Repossession) Act 1997 applies to any transaction between the Customer and Marine and Industrial Diesels, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.

  1. Non payment of any sum by the due date.

    The Customer intimates that it will not pay any sum by the due date.

    Any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Products.

    Any Products in the possession of the Customer are materially damaged while any sum due from the Customer to Marine and Industrial Diesels remains unpaid.

    The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or landlord distrains against any of the Customer’s assets.

    A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.

    Any material adverse change in the financial position of the Customer.

 

LIABILITY

The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Marine and Industrial which cannot by law (or which can only to a limited extent by law) by excluded or modified in respect of any such implied warranties, conditions or terms imposed on Marine and Industrial Diesels. Marine and Industrial Diesels liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.

Except as otherwise provided by clause 9.1 Marine and Industrial Diesels shall not be liable for:

  1. Any loss or damage of any kind whatsoever, arising from the supply of Products and Services by Marine and Industrial Diesels to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly of indirectly from Products and Services provided by Marine and Industrial Diesels to the Customer, and

    The Customer shall indemnify Marine and Industrial Diesels against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Marine and Industrial Diesels or otherwise, brought by any person in connection with any matter, act, omission, or error by Marine and Industrial Diesels, its agents or employees in connection with the Products and Services.

    If contrary to the disclaimer of liability contained in these terms and conditions of trade, Marine and Industrial Diesels is deemed liable to the Customer, following and arising from the supply of Products by Marine and Industrial Diesels to the Customer, then such liability is limited in its aggregate to $500.00.

 

WARRANTY

 Manufacturer’s warranty applies where applicable.

CONSUMER GUARANTEES ACT 1993

The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquired Products and Services from Marine and Industrial Diesels for the purposes of a business in terms of section 2 and 43 of that Act.

PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES

If the Customer is a company or trust, the director(s) or trustee(s) signing this contract in consideration for Marine and Industrial Diesels agreeing to supply Products and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to Marine and Industrial Diesels the payment of any and all monies now or hereafter owed by the Customer to Marine and Industrial Diesels and indemnify Marine and Industrial Diesels against non-payment by the Customer. Any personal liability of a signatory hereto shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The signatories and Customer shall be jointly and severally liable under the terms and conditions of this contract and for payment of all sums due hereunder.

 

MISCELLANEOUS

Marine and Industrial Diesels shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

Failure by Marine and Industrial Diesels to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations Marine and Industrial Diesels has under this contract.

If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceable of the remained provisions shall not be affected, prejudiced or impaired.

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