Terms and Conditions of use of the Travel Lift, Slipway and Hardstand
These terms and conditions (“T&C’s”) are applicable to all contractual arrangements between Nelson Marina Hardstand (“NMH”), and clients which includes Vessel owners and their agents (“Client”). The T&C’s cover all work as defined below, and are the complete agreement between the parties unless another document has been agreed in writing for any work that specifically references and extends these terms and conditions.
In this document:
“Vessel” includes a complete vessel. “Works” includes repairs, maintenance, painting, and all work and services supplied by NMH or its subcontractors. “Authorised Officers” of NMH are any persons in permanent employment at the NMH of the level of foreman or above. The “NMH site” includes the Travelift pontoon and dock area, the fenced hardstand yard, areas outside the yard that may be leased from time to time, and access ways between these areas.
PROVISION OF SERVICES
NMH will only provide services after the Client has correctly completed the relevant parts of the Haulout Sheet. The Client is responsible for ensuring that the Haulout sheet is correctly completed, and must sign acceptance of the charges stated, and he/she agrees with the Terms and Conditions, and has insurance cover on the vessel, and will abide by Site Rules. The client is responsible for ensuring that the written description, whether contained in the Haulout Sheet or in email or other written format, accurately describes the work required by the Client. Service may be refused to any Client at the complete discretion of NMH.
OWNERSHIP, INSURANCE AND SECURITY
Vessels or property on the NMH site remain the property of the Clients. Clients with vessels on the NMH site must have standard marine insurance cover for their vessel and must have insurance cover for any goods or effects stored on the vessel or elsewhere on the site. In all cases storage will be at Clients’ risk, and NMH will not be liable for any loss or damage, or any consequential loss, whether as a result of negligence or otherwise. In all cases vessels are lifted, moved, stored and launched at the Client’s risk. Clients remain responsible for the security of all vessels.
WORKERS AND SAFETY ON SITE
Clients, or their contractors or subcontractors, are not permitted to work on vessels that are on NMH property unless prior approval has been given by an authorised officer of NMH. In all cases they must read and sign the “Site Rules”, and must comply with any safety instructions from NMH staff, and all requirements of the Health and Safety at Work Act 2015 (HSWA) and its amendments. In no case may persons other than NMH staff change or interfere with the blocking or support arrangements for any vessel. Sandblasting, waterblasting, or spray painting is permitted at the NMH site. Any activities carried out on NMH site must be in compliance with Council Bylaws, and must comply with any relevant consents issued under the Resource Management Act. Clients are responsible for competently crewing and handling vessels when arriving and leaving the travelift dock.
CONTRACTORS ON SITE
All contractors on the NMH site must be in possession of a valid licence issued by NMH. The Client must advise NMH of all contractors who will be working on the Client’s vessel, and the Client is responsible for the activities of the contractors at all times while they are on the NMH site.
SET RATES & ESTIMATES
All work is undertaken on the basis of set rates, available from the NMH office.
The set rates for Haulout, hardstand and some associated activities are based mainly on vessel length, and are available in the NMH office. Rates may be changed from time to time by NMH, and the revised rates will apply from the time they became available in the NMH office.
LIABILITY LIMITATION AND INDEMNITY
To the extent the Consumer Guarantees Act 1993 or any similar national legislation apply to this Contract, then certain conditions and warranties will be implied into this Contract to the benefit of the client, and those conditions and warranties are not excluded, restricted or modified by any provision of this Contract. However where the Client carries on a “business” as defined in the Consumer Guarantees Act 1993, it agrees it is acquiring the services of NMH for the purposes of that business and nothing in that Act shall apply.
Except as provided for in these T&C’s, NMH will not in any circumstance be liable for any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works howsoever caused, including by way of negligence, breach of contract, breach of duty of bailment, or wilful act of NMH, its employees, agents or subcontractors. It is expressly agreed that every exemption from liability, defence, immunity and right under these T&C’s will extend to and protect every employee, agent and subcontractor carrying out work under these T&C’s, and in this regard NMH will be deemed to be acting as agent or trustee on behalf of all employees or other contractors.
To the fullest extent permitted at law, the Client indemnifies NMH against all actions, suits, claims, debts, obligations and other liabilities arising directly, or indirectly, from this Contract or the provision of the Works, or from any act or omission of the Client, or the officers, agents, employees, contractors or invitees of the client. The client agrees to compensate NMH for any loss or damage to NMH property caused by or resulting from the acts or omissions of the Client, or the officers, agents, employees, contractors or invitees of the client.
If NMH is unable to perform any part of its obligations under these T&C, due to any matter beyond its control, then NMH will not be liable to the Client to the extent and for the period that it is not reasonably able to perform. Matters beyond the control of NMH may include, without limitation: any act of God, strike, lockout or labour disturbance, war or warlike condition, act of terrorism, civil riot, sabotage, explosion, lightning, fire, earthquake, landslide or tidal wave, storm, flood or other extraordinary weather conditions, quarantine, requirements of government authorities, unavailability in supplies (including electricity, oil or gas) or equipment or transport, or similar.
TERMS OF PAYMENT
The Client shall duly and punctually pay all charges when levied by NMH, and in any event, before the Vessel is removed from the Hardstand, at the rate specified based upon overall Vessel length.
The right for NMH to review those charges at any time without notice.
Payment for Vessels on the Hardstand is due monthly by the 20th day of each month following invoice.
Postponement of launching due to circumstances beyond our control will result in normal daily rate charges applying
If any moneys are owing under this contract by the Client for the use of the Vessel Mover, or for the use of the Hardstand, NMH shall be entitled to seize the Vessel and shall, from the date of such seizure, have a general lien upon, and the right of retention of the Vessel so seized until all moneys payable by the Client under this contract have been paid in full. NMH shall give the Client written notice of such seizure.
If the moneys owing remain unpaid for a period of 21 days after NMH gave notice to the Client of seizure of the Vessel, NMH shall be entitled without further notice to sell the Vessel by auction or otherwise, together with any chattels situated on or in the Vessel, and the proceeds of such sales shall be applied first towards all the expenses of seizure and sale and that incurred due to the Client’s breach, secondly the payment of moneys due to NMH, and lastly the payment of the balance (if any) to the Client. The Client will be liable for NMH’s full legal and collection costs which will be added to any amounts due.
If there shall be a deficiency of funds from any sale pursuant to this clause to meet the costs noted above, NMH may proceed to recover such deficiency from the Client as liquidated damages.
The Client indemnifies and saves harmless NMH from all claims, suits and demands made by any person or corporation in respect of the Vessel or any chattels seized and sold pursuant to this Contract.
The Client acknowledges that the Vessel placed on the Hardstand in accordance with this Contract, and any chattels in, on or fixed to the Vessel shall not be deemed to be in the custody, possession or control of NMH in any manner whatsoever, including during any period while the Vessel is being prepared for transport or transported to, on or from or stored upon the Hardstand, unless and until NMH exercises its rights of seizure and sale referred to above.
DISPUTES AND LEGAL JURISDICTION
If any dispute of difference shall arise between NMH and the Client that cannot be settled by negotiation between the parties then the matter shall be referred to an independent mediator. If an agreement cannot be reached under mediation then the matter shall be referred to arbitration and the parties agree to be bound by the result. Alternatively, matters within the applicable monetary limit may be taken by either party to the Disputes Tribunal. In all cases the matters shall be handled in accordance with the current procedures and protocols of the Arbitrators’ and Mediators’ Institute of New Zealand. The law of New Zealand shall be applicable to all matters including submissions to arbitration and the parties agree to be bound by the jurisdiction of the Courts and Tribunals of New Zealand.