"Supplier" shall mean Hansens Auto Services 1997 Limited T/A Hansens Auto Services its successors and assigns or any person acting on behalf of and with the authority of Hansens Auto Services 1997 Limited T/A Hansens Auto Services.
"Customer" shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Supplier to the Customer.
"Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
"Works" shall mean all Works supplied by the Supplier to the Customer (and where the context so permits shall include any supply of Parts as hereinafter defined) all such Works shall be as described on the invoices, quotation, work authorisation or any other forms provided by the Supplier to the Customer and shall include any advice or recommendations.
"Parts" shall mean Parts supplied by the Supplier to the Customer either separately, or as part of the Works (and where the context so permits shall include the supply of Works as defined above).
"Loan Car" shall mean any Loan Car supplied on Hire and/or on Loan by the Supplier to the Customer (and where the context so permits shall include any supply of Works). The Loan Car shall be as described on the invoices, quotation, authority to hire and/or loan, or any other work authorisation form provided by the Supplier to the Customer.
"Price" shall mean the price payable for the Works as agreed between the Supplier and the Customer in accordance with Clause 5 of this contract.
The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Parts.
These terms and conditions may only be amended with the Supplier's consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
3. Change in Control
The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer's details (including but not limited to, changes in the Customer's name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer's failure to comply with this clause.
4. Price and Payment
At the Supplier's sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Supplier to the Customer in respect of the Works supplied; or
(b) the Supplier's estimated Price (subject to Clause 4.2) which shall not be deemed binding upon the Supplier as the actual Price can only be determined upon completion of the Works. The Supplier undertakes to keep the Customer informed should the actual Price look likely to exceed the original estimate.
(c) the Supplier's quoted Price (subject to clause 4.2) which shall be binding upon the Supplier provided that the Customer shall accept the Supplier's quotation in writing within (30) days of issue.
The Supplier reserves the right to change the Price in the event of a variation to the Supplier's quotation.
At the Supplier's sole discretion a non-refundable deposit may be required.
Where the Supplier is requested to store the Customer's Parts or vehicle, or where Parts or vehicles are not collected within twenty-four hours of advice to the Customer that they are ready for collection, then the Supplier (at its sole discretion) may charge a reasonable fee for storage.
At the Supplier's sole discretion:
(a) payment shall be due on completion of the Works; or
(b) payment for approved Customers shall be made by instalments in accordance with the Supplier's payment schedule; or
(c) payment for approved Customers shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer's address or address for notices.
Time for payment for the Works shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
Payment will be made by cash, or by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and the Supplier.
Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale of the Parts. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Works
At the Supplier's sole discretion delivery of the Works shall take place when:
(a) the Supplier provides the Works at the Supplier's address; or
(b) the Supplier provides the Works at the Customer's nominated address.
Where the Supplier is to provide any Works at the Customer's nominated address then the Customer shall be liable for all costs incurred by the Supplier from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at the Suppliers standard rates and any Parts purchased for the Works).
Delivery of any Works to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
The Supplier may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated.
The Supplier shall not be liable for any loss or damage whatsoever due to failure by the Supplier to deliver the Works (or any of them) promptly or at all where due to circumstances beyond the control of the Supplier.
If the Supplier retains ownership of any Parts nonetheless, all risk for the Parts passes to the Customer on delivery.
If any of the Parts are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier's rights to receive the insurance proceeds without the need for any person dealing with the Suppier to make further enquiries.
7. Customer's Responsibility & Acknowledgment
The Customer acknowledges and accepts that the supply of Parts for accepted orders may be subject to availability and if, for any reason, Parts are not or cease to be available, the Supplier reserves the right to vary the price with alternative Parts as per Clause 4.2. The Supplier also reserves the right to halt all Services until such time as the Supplier and the Customer agree to such changes.
The Customer acknowledges that the Supplier can ony provide its Services on a vehicle in its current state as supplied to the Supplier therefore the Supplier shall not accept any responsibility for the workmanship of any third party that has worked on a Customer's vehicle prior to Services being undertaken by the Supplier (including, but not limited to, poor paintwork or repairs).
The Supplier, its employees, agents or contractors may test drive or carry out tests of the vehicle at the Supplier's discretion and may, if requested by the Customer, collect or re-deliver the vehicle where nominated by the Customer and the Supplier will not be liable to the Customer for any damage which occurs to or is caused by the vehicle during such driving, testing, collection or delivery unless it arises from the reckless or wilful conduct of the Supplier, its employees, agents, or contractors.
The Customer acknowledges and agrees that further terms and conditions will apply to the Customer in the event a hire/loan Vehicle is required from the Supplier.
Where the Customer has supplied materials for the Supplier to complete the Services, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Supplier shall not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
Where the Customer has left a vehicle with the Supplier for repair, restoration, or modification or for the Supplier to perform any other Service in relation to the item, it shall be at the sole risk of the Customer. The supplier shall not be liable for any loss or damage to any vehicle whilst in the care of the Supplier, it shall be the responsibility of the Customer to ensure the vehicle is adequately insured, or at all (including but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on the Supplier's premises.
The Customer acknowledges that it is the Customers' responsibility to remove all personal/valuable items from the vehicle prior to the Supplier carrying out their Services. The Supplier shall not be liable in the event of any apparent loss or damage to personal/valuable items left in the vehicle.
8. Hire/Loan Vehicles
Hire/Loan Vehicles shall at all times remain the property of the Supplier and are returnable on demand by the Supplier.
The Hire/Loan Vehicle may only be driven during the period of Hire/Loan by the Customer or any other person that the Supplier agrees may drive the Hire/Loan Vehicle and then only if they hold a current driver's licence appropriate for the Hire/Loan Vehicle at the time when they are driving it.
The Customer shall;
(a) ensure that all reasonable care is taken in handling and parking the Hire/Loan Vehicle and that it is left securely locked when not in use.
(b) keep the Hire/Loan Vehicle in the Customer's own possession and control and shall not allow the use of the Hire/Loan Vehicle by any third party.
(c) not alter or make any additions to the Hire/Loan Vehicle including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Hire/Loan Vehicle or in any other manner interfere with the Hire/Loan Vehicle.
(d) keep the Hire/Loan Vehicle, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Supplier to the Customer. In the event that the Hire/Loan Vehicle is not returned in clean condition then the Suppier reserves the right to charge the Customer for all costs the Supplier incurs in cleaning the Hire/Loan Vehicle.
The Customer acknowledges and agrees that they shall not permit any form or charge to be applied in relation to the Hire/Loan Vehicle and further agrees that they shall not be entitled to any form of lien over the Hire/Loan Vehicle.
The Customer shall be liable for any parking or traffic infringements, or related impoundment, towage and storage, and will supply all relevant details as required by the Police (and/or the Supplier) relating to any such parking or traffic infringements or any other offences.
The Customer, by signing this agreement, accepts that they shall be liable to the Supplier for any loss of, or damage to, the Hire/Loan Vehicle and consequential loss to the full extent of any insurance excess (where applicable). In the event insurance is rendered invalid by any action of the Customer then the Customer shall be liable to the Supplier for the full cost of repairing or replacing the Hire/Loan Vehicle (whichever is the lesser).
Any excess applied (plus GST) shall be for each and every claim. Window glass damage or breakage also carries a separate excess.
The Supplier and Customer agree that the ownership of any Parts shall not pass until:
(a) the Customer has paid the Supplier all amounts owing for the particular Parts; and
(b) the Customer has met all other obligations due by the Customer to the Supplier in respect of all contracts between the Supplier and the Customer.
Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier's ownership or rights in respect of the Parts shall continue.
It is further agreed that:
(a) where practicable the Parts shall be kept separate and identifiable until the Supplier shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Parts shall pass from the Supplier to the Customer the Supplier may give notice in writing to the Customer to return the Parts or any of them to the Supplier. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Parts shall cease; and
(c) the Customer is only a bailee of the Parts and until such time as the Supplier has received payment in full for the Parts then the Customer shall hold any proceeds from the sale or disposal of the Parts, up to and including the amount the Customer owes to the Supplier for the Parts, on trust for the Supplier; and
(d) until such time that ownership in the Parts passes to the customer, if the Parts are converted into other products, the parties agree that the Supplier will be the owner of the end products; and
(e) if the Customer fails to return the Parts to the Supplier then the supplier or the Supplier's agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Parts are situated and take possession of the Parts, and the Supplier will not be liable for any reasonable loss or damage suffered as a result of any action by the Supplier under this clause.
10. Personal Property Securities Act 1999 ("PPSA")
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Parts previously supplied by the Supplier to the Customer (if any) and all Parts that will be supplied in the future by the Supplier to the Customer.
The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Parts charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Supplier; and
(d) immediately advise the Supplier of any material change in its business practices of selling the Parts which would result in a change in the nature of proceeds derived from such sales.
The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 10.1 to 10.5.
11. Customer's Disclaimer
The Customer hereby disclaims any right to rescind, or cancel any contract with the Supplier or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Supplier and the Customer acknowledges that the Works are bought relying solely upon the Customer's skill and judgement.
The Customer shall inspect the Works/Parts on delivery and shall within three (3) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Works/Parts within a reasonable time following delivery if the Customer believes the Works/Parts are defective in any way. If the Customer shall fail to comply with these provisions the Works/Parts shall be presumed to be free from any defect or damage. for defective Works/Parts, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier's liability is limited to either (at the Supplier's discretion) replacing the Works/Parts or repairing the Works/Parts.
Parts will not be accepted for return other than in accordance with 12.1 above.
Subject to the conditions of warranty set out in clause 13.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within the earlier of twelve (12) months of the date of delivery or 20,000 kilometres (time being of the essence) then the Supplier will either (at the Supplier's sole discretion) replace or remedy the workmanship.
The conditions applicable to the warranty given by clause 13.1 are;
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Works; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Supplier; or
(iii) any use of any Works otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier's consent.
(c) In respect of all claims the Supplier shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer's claim.
For Parts not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Parts. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Parts.
In the case of second hand Parts, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults, as is and acknowledges that no warranty is given by the Supplier as to the quality or suitability of the Part(s) for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any consequential loss or damage howsoever arising out of the use of second hand Parts.
14. Consumer Guarantees Act 1993
If the Customer is acquiring Parts for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Parts by the Supplier to the Customer.
15. Intellectual Property
Where the Supplier has designed, drawn or created specific items for the Customer, then the copyright in those designs and drawings and items shall remain vested in the Supplier, and shall only be used by the Customer at the Supplier's discretion.
The Customer warrants that all designs or instructions to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer's order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
16. Default & Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier's collection agency costs, and bank dishonour fees).
Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Parts to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
Without prejudice to the Supplier's other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier's opinion the Customer will be unable to make a payment when it falls due;
(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.
17. Security And Charge
Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any 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 the Supplier or the Supplier'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 the Supplier (or the Supplier's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Supplier from and against all the Supplier's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Supplier or the Supplier's nominee as the Customer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 17.1.
The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage howsoever arising from such cancellation.
In the event that the Customer cancels the delivery of Works the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
19. Privacy Act 1993
The Customer authorises the Supplier or the Supplier's agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer's creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier 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 Customer.
Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Customer shall have the right to request the Supplier for a copy of the information about the Customer retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Customer held by the Supplier.
20. Unpaid Seller's Rights
Where the Customer has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other Works in relation to the item and the Supplier has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Supplier shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Supplier is in possession of the item;
(c) a right to sell the item.
The lien of the Supplier shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
The Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions.
In the event of any breach of this contract by the Supplier the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Parts.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer's consent.
The Supplier reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Customer of such change.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier's right to subsequently enforce that provision.