‘Moon Engines’ shall mean Moon Engines Ltd, 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 purchasing products and services from Moon Engines.
‘Products’ shall mean:
All Products of the general description supplied on the front of this agreement and supplied by Moon Engines to the customer; and
All Products supplied by Moon Engines to the Customer; and
All inventory of the Customer that is supplied by Moon Engines; and
all Products supplied by Moon Engines and further identified in any invoice issued by Moon Engines to the Customer, which invoices are deemed to be incorporated into and form a part of this agreement; and
All Products that are marked as having been supplied by Moon Engines or that are stored by the Customer in a manner that enables them to be identified as having been supplied by Moon Engines. The above descriptions may overlap but each is independent of and does not limit the others.
‘Products’ shall also mean all products, services and advice provided by Moon Engines to the Customer including without limitation the importing, distribution, exporting, supply, manufacture, installation and servicing of hospitality products and all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of products and services by Marine Transmissions to the Customer.
‘Price’ shall mean the cost of the ‘Products’ as agreed between Moon Engines and the Customer and includes all disbursements e.g. charges Moon Engines pay to others on the Customers behalf subject to clause 4 of this contract.
Any instructions received by Moon Engines from the Customer for the supply of Products shall constitute a binding contract and acceptance of the terms and conditions contained herein.
COLLECTION AND USE OF INFORMATION
The Customer authorises Moon Engines to collect, retain and use any information about the Customer, or for the purpose of assessing the Customers credit worthiness, enforcing any rights under this contract, or marketing any Products provided by Moon Engines to any other party.
The Customer authorises Moon Engines to disclose any information obtained to any person for the purposes set out in clause 3.1
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.
Where no price is stated in writing or agreed to orally the Products shall be deemed to be sold at the current amount such Products are sold by Moon Engines 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 that is beyond the control of Moon Engines between the date of the contract and delivery of the Products.
Unless otherwise agreed payment for Products shall be made in full on or before the product is collected.
Interest will be charged on any amount owing after the due date at the rate of 5% per month or part month.
Any expenses, disbursements and legal costs incurred by Moon Engines in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
A deposit of 30% is required.
Where a quotation is given by Marine Transmissions for Products:
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 Transmissions reserve the right to alter the quotation because of circumstances beyond its control.
Where Products are required in addition to the quotation the Customer agrees to pay for the additional cost of such Products.
The Products remain at Moon Engines risk until delivery to the Customer.
Delivery of Products shall be deemed complete when Moon Engines 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 time agreed for delivery shall not be an essential term of this contract unless the customer gives written notice to Moon Engines making time of the essence.
The Customer authorises Moon Engines to contract either as principal or agent for the provision of Products that are the matter of this contract.
Where Moon Engines enters into a contract of the type referred to in clause 8.1 it shall be read with and form part of this agreement and the Customer agrees to pay any amounts due under that contract.
TITLE AND SECURITY (PERSONAL PROPERTIES SERCURITIES ACT 1999)
Title in any products supplied by Moon Engines passes to the Customer only when the Customer has made payment in full for all products provided by Moon Engines and of all other sums due to Moon Engines by the Customer on any account whatsoever. Until all sums due to Moon Engines have been paid in full, Moon Engines has a security interest in all Products.
Where the Customer has not paid for any Products in its possession property in such Products shall remain with Moon Engines and:
The Products shall be held by the Customer as bailee; and
Title in the Products shall remain with Moon Engines until the client has made payment for the Products.
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 in the Products shall remain with Moon Engines 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 be deemed to be assigned to Moon Engines as security for the full satisfaction by the Customer of the full amount owing between Moon Engines and the Customer.
The Customer gives irrevocable authority to Moon Engines 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 Moon Engines 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. Moon Engines 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. Moon Engines 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 Moon Engines reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
Where Products are retained by Moon Engines pursuant to clause 9.4 the Customer waives the right to receive notice under s.120 of the Personal Properties Securities Act 1999 (‘PPSA’) and to object under s.121 of the PPSA.
The following shall constitute defaults by the Customer:
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 possession of the Customer are materially damaged while any sum due from the Customer to Moon Engines remains unpaid
The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customers assets or a landlord distains against any of the Customers assets
A Court judgement is entered against the Customer and remains unsatisfied for seven (7) days
Any material adverse change in the financial position of the Customer.
Moon Engines has a security interest in any property of the Customer that is in the possession of Moon Engines and if any sum is due to Moon Engines by the Customer on any account whatsoever is not paid in full within seven days of the due date, Moon Engines may remove such property and store it in such place and manner as Moon Engines thinks fit and at the risk and expense of the Customer.
If the Credit Repossession Act applies to any transaction between the Customer and Moon Engines, the Customer has the rights provided in that Act despite anything contained in these terms and conditions of trade.
Unless otherwise agreed if any products remain in or on Moon Engines premises at 606A Rosebank Road while work is not being undertaken by Moon Engines for a period of more than one month, a storage fee of $100 per week will be billed to the customer. If payment is not made nor product or goods collected, they may be sold to recoup costs to Moon Engines.
SECURITY INTEREST FOR SERVICE PROVIDERS
The Customer gives Moon Engines a security interest in all of the Customers present and after-acquired Goods that Moon Engines has performed Services on or to in which goods or materials supplied or financed by Marine Transmissions have been attached or incorporated and consent MOON ENGINES LTD to registering an interest in the Personal Property Securities Register.
Moon Engines may in its own discretion allocate any payment received from the Customer towards any invoice that Moon Engines 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 manner such as preserves the maximum value of Moon Engines purchase money security interest in Products.
No claim relating to Products and services will be considered unless made within seven (7) days of delivery.
The Consumer Guarantees Act 1993, the Commerce Act 1986, the Fair Trading Act 1986 and other statutes may imply warrantees or conditions or impose obligations upon Moon Engines which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Moon Engines, Moon Engines 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 13.1 Moon Engines shall not be liable for:
Any loss or damage of any kind whatsoever including consequential loss whether suffered or incurred by the Customer or another person and whether in contract, or tort (including negligence), or otherwise and whether such loss or damage arises directly or indirectly from products and services provided by Moon Engines to the Customer; and
The Customer shall indemnify Moon Engines 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 Moon Engines or otherwise, brought by any person in connection with any matter, act, omission, or error by Moon Engines its agents or employees in connection with the products and services.
Manufacturers warranty applies where applicable.
Moon Engines must be given first right to repair / replace / or rectify any warranty claim against any of its workmanship or product failure. It must be Moon Engines that instructs an outside contractor or business to repair / replace any warranty claim. Not the customer.
As stated in Moon Engines ‘Warranty Agreement’; Moon Engines will not cover any costs to remove or replace faulty component(s) unless installed and/or inspected by Moon Engines at time of sign-off. Moon Engines do not cover any haul-out or hard stand fees in conjunction with any warranty claims against our services or products.
Products ordered by customers must be ordered correctly. Moon Engines accept no responsibility for incorrectly ordered parts / products or if the customer changes their mind. Moon Engines will exchange items if possible, at their discretion. Moon Engines has no obligation to refund payments. If we choose to refund payments, a 20% refund fee will apply plus any costs incured.
CONSUMER GUARANTEES ACT
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products from Moon Engines 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 Moon Engines agreeing to supply Products 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 Moon Engines the payment of any and all monies now or hereafter owed by the Customer to Moon Engines and indemnify Moon Engines against non-payment by the Customer. Any personal liability of a signatory hereto shall not include 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.
Moon Engines 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 Moon Engines 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 Moon Engines has under this contract.If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.