Terms of Trade - Autopro Whangarei

TERMS OF TRADE

The provision of parts and/or services by Autopro Whangarei Ltd is on the following terms and conditions. All customers are deemed to have agreed to and to be bound by these terms.

Definitions

Autopro Whangarei, we, us, our, ours, refer to Autopro Whangarei Ltd or any agents or employees thereof;

Customer, you, your, refer to the Customer, any person acting on behalf of and with the authority of the Customer, or any person engaging Autopro Whangarei to provide parts and/or services;

Parts means the parts or materials supplied by Autopro Whangarei Ltd to Customer either separately or as part of the Services;

Price means the amount payable by Customer to Autopro Whangarei Ltd in respect of the Parts and/or Services provided by Autopro Whangarei Ltd from time to time, being Autopro Whangarei Ltd's applicable rates and/or prices at the relevant time as set out in the Repair Order, in the Autopro Whangarei Ltd store, or otherwise advised to Customer verbally or in writing by Autopro Whangarei Ltd;

Agreement includes any Repair Order and these General Terms and Conditions;

Repair Order means and includes any estimate, invoice, document, or verbal statement issued from Autopro Whangarei Ltd to Customer and accepted by Customer from time to time; and

Services means all services supplied by Autopro Whangarei Ltd to Customer from time to time, as described on the Repair Order or as otherwise agreed by Autopro Whangarei Ltd and Customer and includes any advice and/or recommendations;

Event of Default occurs if Customer:

(a) becomes, or is deemed to be, insolvent or bankrupt;

(b) goes into receivership or has a receiver, administrator, trustee or manager (including a statutory manager) appointed in respect of Customer and/or all or any of Customer's property; or

(i) breached a provision of this Agreement that is incapable of remedy; or

(ii) failed to remedy any breach of this Agreement that is capable of remedy within 10 Business Days of notice of that breach having been given stating the nature of the breach and requiring remedy;

Force Majeure Event means any event or circumstance (whether arising from natural causes, human agency or otherwise) that is beyond the reasonable control of ours , including strikes, lockouts or other labour disputes, riot, civil commotion, fire, flood, drought, loss or delay at sea, breakdown or war (whether declared or not).

Acceptance

Any instructions received by us from you for the supply of Parts and/or Service shall constitute a binding contract and acceptance of the terms and conditions contained herein.

Provision of parts and services

Parts and Services: In consideration of you paying the Price, we agree to provide you with the Parts and/or Services on the terms and conditions set out below.

Price and payment

Price: Customer will pay the Price to Autopro Whangarei in full and without setoff, counterclaim or deduction on delivery of the Parts and/or completion of the Services and prior to the collection or delivery of the vehicle; if no price is specified in respect of the supply of Parts and/or Services, the Customer shall pay us in accordance with their prevailing costs, rates and charges applicable at the date of this Agreement.

Work Performed: Work performed includes time spent consulting with the Customer, telephone calls, emails, meeting and preparation time, time for travel and any other time attributable to the supply of Parts and/or Services.

Materials in Stock: At the date of the Agreement:

(a) if we have the Parts in stock, the quoted price of such Parts shall not be subject to change: and

(b) if Parts are not in stock then the quoted price of such Parts are subject to increase in proportion to any increase in the price payable by Autopro Whangarei to its Parts supplier.

GST: The parties acknowledge and agree that, unless expressly stated otherwise, all amounts stated in and payable under this Agreement do not include any GST. All amounts so payable under this Agreement must be increased for GST if and to the extent that the supply in respect of which the amount is payable is subject to GST, and such GST will be payable at the same time and on the same basis as Customer pays the Price.

Payment: Payment will be made by cash, EFTPOS debit, credit card (plus a surcharge of up to 2.5% of the Price), electronic/online banking (Proof of payment from an electronic bank remittance slip should be emailed to info@autoprowhangarei.co.nz; funds must be cleared before Customer's vehicle can be released); or by any other method as agreed to between Autopro Whangarei and Customer.

Reimbursable Expenses: In addition to the Price, all expenses actually and properly incurred by Autopro Whangarei in connection with the delivery and installation of the Parts and/or provision of the Services will be reimbursed by Customer to Autopro Whangarei in full and without setoff, counterclaim or deduction at the same time and on the same basis as Customer pays the Price (unless specifically incorporated in the Price). Autopro Whangarei Ltd reserves our rights to appoint a Debt Collection Agency to recover any unpaid outstanding debts on goods and services supplied to the customers. The customer will be responsible for any collection fee incurred due to the non payment on invoice charged by the Debt Collection Agency.

Default Interest: Without prejudice to any other rights or remedies, interest at 2.5% per month will be payable by Customer on any amount that is overdue for payment (including any default interest) by Customer to Autopro Whangarei under this Agreement, calculated on a daily basis from the date payment is due until the date payment is received by Autopro Whangarei in full. The charging of interest does not imply any extension of credit by Autopro Whangarei.

Administration Fee: An administration fee of $10.00 + GST for each reminder message sent from time to time by Autopro Whangarei seeking payment of an overdue account will be payable by Customer to Autopro Whangarei under this Agreement until the date payment is received by Autopro Whangarei in full.

Deposits

From time to time Autopro Whangarei may request a deposit from the Customer, a deposit is to secure the Customers Parts and/or Booking time and it is not refundable; it is the Customers commitment to fulfill their obligations under this Agreement; the deposit amount will be deducted from the final invoice and the balance of that invoice must be paid in full on delivery of the Parts and/or completion of the Services and prior to the collection or delivery of the vehicle.

Cost Estimate

Repair costs stated in cost estimates are guidelines only on the basis of the information Customer provides and/or following a brief examination of the vehicle. We cannot guarantee the accuracy of cost estimates. It is therefore expressly noted, that cost estimates are not given with express warranty for their accuracy. If while repairing the vehicle it becomes clear that more extensive repair work is necessary, we will inform Customer that we expect the cost estimate to be exceeded and will present a new estimate to Customer. In the case of the vehicle being in a dangerous condition, we are authorised to complete the necessary repair without Customer confirmation even if the repair costs then exceed the cost estimate.

If on the basis of a cost estimate the Customer decides not to order or continue with the repair work, we are entitled to charge for the cost of preparing the cost estimate and for any repair work performed up to that point. Unless otherwise agreed the quotation shall be valid for fourteen (14) days from the date of issue; and Autopro Whangarei reserves the right to alter the quotation because of circumstances beyond its control.

Title and risk

Passing of Title: Title to any Parts remain with Autopro Whangarei and do not pass to Customer until the Price together with all other money payable to Autopro Whangarei by Customer under this Agreement have been paid to and received by Autopro Whangarei in full.

Possession of Parts: Where Customer is in possession of any Parts, until such time as Autopro Whangarei has received payment in full for the Parts then Customer is only a bailee of the Parts and holds any Parts or proceeds from the sale or disposal of the Parts up to and including the amount Customer owed to Autopro Whangarei on trust for Autopro Whangarei .

Risk: Risk of any loss of, damage or deterioration to the Parts supplied by Autopro Whangarei will be borne by Customer from the time that such Parts are collected by Customer or delivered to Customer by Autopro Whangarei .

Insurance: Customer will ensure that the Parts are adequately insured for full replacement value from the time that risk in the Parts passes to Customer under this Agreement.

Damage or Destruction: If the Parts are damaged or destroyed prior to title to them passing to Customer, Autopro Whangarei will be entitled to receive all insurance proceeds payable in respect of such damage (whether or not the balance of the Price has become payable under this Agreement). The production of this Agreement by Autopro Whangarei will be sufficient evidence of Autopro Whangarei 's right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with Autopro Whangarei .

Application of Insurance Proceeds: Any insurance proceeds received under clause Damage or Destruction, will be applied by Autopro Whangarei as follows:

(a) firstly, in payment of the Price for the damaged or destroyed Parts;

(b) secondly, in payment of any other money payable to Autopro Whangarei by Customer under this Agreement; and

All vehicles are stored, worked on and driven solely at the Customer's (owner's) risk. The Customer (owner) is responsible for keeping vehicles insured at all times.

The Customer gives irrevocable authority to Autopro Whangarei to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if Autopro Whangarei believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated. Autopro Whangarei 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. Autopro Whangarei may either resell any repossessed Goods 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 Goods and credit the Customer's account with the invoice value thereof less such sum as Autopro Whangarei reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

Delivery and installation

Delivery: Unless otherwise agreed in writing, Autopro Whangarei will make available and/or deliver and install the Parts and/or Services to Customer at Autopro Whangarei 's primary trading location by the delivery date(s) (where appropriate) as specified in the Repair Order and otherwise within a reasonable time of confirmation of the Repair Order.

Delivery Dates: Notwithstanding clause Delivery and to the maximum extent permitted by law, Customer acknowledges that:

(a) unless otherwise agreed in writing, any delivery date specified is approximate only; and

(b) under no circumstances will Autopro Whangarei be liable for any costs incurred by Customer as a result of any delay in delivery (whether caused by factors beyond Autopro Whangarei 's control or otherwise).

Customer Acknowledgements: Customer acknowledges that:

(a) Parts and/or Services to be provided in accordance with the Repair Order are subject to availability. Should Parts not be available, Autopro Whangarei may at its direction suspend all performance of its obligations under the Agreement until such time as the Parts become available or until such time as Autopro Whangarei and Customer agree to vary the Parts and/or Services. Autopro Whangarei reserves the right to vary the Price or supply alternative Parts of similar description;

(b) Autopro Whangarei accepts no responsibility for the workmanship and quality of any third party parts and/or services to any vehicle provided and/or undertaken prior to the supply of Parts and/or Services by Autopro Whangarei ;

(c) Autopro Whangarei , its employees, agents or contractors may test drive or carry out tests of the vehicle at our discretion and may, if requested by Customer, collect or re-deliver the vehicle where nominated by Customer and Autopro Whangarei will not be liable to 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 Autopro Whangarei ; and

(d) Autopro Whangarei accepts no liability for any loss or damage to any vehicle where Customer has left a vehicle with Autopro Whangarei for the supply of Parts and/or Services. While the vehicle is on Autopro Whangarei 's premises the vehicle will be at the sole risk of Customer who must ensure the vehicle is adequately insured (including but not limited to the perils of accident, fire, theft and burglary and all other risks foreseeable or otherwise).

Delay or Refusal to Accept Delivery: Without prejudice to any other rights or remedies Autopro Whangarei may have, if Customer refuses to collect, accept or unduly delays delivery and/or installation of the any Parts and/or Services upon or after the date that it first becomes available for collection, delivery and/or installation, Customer will pay to Autopro Whangarei all additional costs incurred by Autopro Whangarei as a result of such refusal or delay including (without limitation) any storage charges and insurance costs. Delay or default in delivery does not entitle Customer to cancel any order for Parts and/or Services.

Vehicle Storage: Autopro Whangarei may charge storage fees specified (the default fee is $10.00/day) if the Customer fails to take delivery within seven (7) days of notification by Autopro Whangarei that the Parts and/or Vehicle is ready for collection and Autopro Whangarei may transfer the Parts and/or Vehicle into storage away from Autopro Whangarei’s premises. Prior to doing so Autopro Whangarei shall give notice to the Customer of the storage arrangements and the Customer agrees to pay all reasonable costs incurred in storage and transport to and from such storage.

Disposal: If the Customer fails to collect the Parts and/or Vehicle within twenty-one (21) days of receiving notice that the Parts and/or Vehicle is ready for collection, Autopro Whangarei may sell the Parts and/or Vehicle and apply the proceeds of the sale in satisfaction of any outstanding money owed to Autopro Whangarei by the Customer without needing to advise the Customer. All monies still outstanding after the sale are still payable by the Customer. Autopro Whangarei shall make reasonable efforts to sell the Parts and/or Vehicle for its market value. Any monies in excess of the outstanding debt shall be held in trust for the Customer.

Inspection: Customer will inspect the installation of the Parts and/or Services on completion and will notify Autopro Whangarei of any alleged defect with the Parts and/or Services within 7 days. If Customer fails to advise Autopro Whangarei of any defect in accordance with this clause, the Parts and/or Services will be deemed to have been provided in accordance with the terms of this Agreement.

Disputes: No claim relating to Parts and/or Services will be considered unless made in writing within 7 days.

Loan Vehicles

Hire/Loan: Where a Loan Vehicle is supplied to Customer the Loan Vehicle may only be driven during the period of hire/loan and is returnable at the demand of Autopro Whangarei. No persons other than Customer may operate the Loan Vehicle unless otherwise agreed between Autopro Whangarei and Customer. Customer and all permitted drivers must hold a valid New Zealand drivers licence and must meet Autopro Whangarei's insurance requirements with respect to their ability and eligibility to drive the Loan Vehicle.

Obligations: Customer:

(a) acknowledges that they will be liable for any loss or damage to the Loan Vehicle (including but not limited to any consequential loss and resulting insurance excess) occurring in or as a result of the time the vehicle is hired or loaned by Customer. Should any insurance claim be rejected or held invalid Customer will be liable to Autopro Whangarei for the full cost of repairing or replacing the Loan Vehicle (whichever is lesser);

(b) must operate the Loan Vehicle with all reasonable care and skill and must ensure the Loan Vehicle is stored securely when not in use;

(d) must comply with all maintenance and cleaning instructions supplied by Autopro Whangarei to Customer from time to time. Autopro Whangarei reserves the right to charge Customer any actual costs incurred in restoring the Loan Vehicle to the same standard before it was hired/loaned to Customer (including but not limited to the cost to clean the vehicle and fuel to return the tank to full); and

(e) will be liable for any parking or traffic infringements or related impoundment towage and storage costs.

Warranties

Autopro Whangarei gives no warranty on any Part and/or Service performed beyond that offered by the manufacturer or supplier. The judgement of the manufacturer or supplier as to the validity of any claim is final and binds both the Company and the purchaser.

Exclusions: Customer agrees that where the Parts and/or Services are provided by Autopro Whangarei, and acquired by Customer, in trade, then pursuant to section 43 of the Consumer Guarantees Act 1993, the provisions of that Act are expressly excluded and any conditions or warranties implied in this Agreement by any law are expressly excluded to the maximum extent permitted by law.

If Customer supplies the Parts to any other person Customer must not give or make any undertaking, assertion or representation in relation to the Parts and/or Services without Autopro Whangarei 's prior written consent.

Consumer Law: Where Customer is not in trade, nothing in this Agreement is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, and all provisions of this Agreement will be read and modified to the extent necessary to give full effect to the terms of those Acts.

Condition of Warranty

Autopro Whangarei must be given the first opportunity to correct the problem by reporting the matter to Autopro Whangarei before any rectification is carried out. Any expenditure incurred without Autopro Whangarei’s written approval will not be recognised.

Please note that warranties apply to defective materials and workmanship that can be attributed to an Autopro Whangarei repair under normal use and operation of the Part and/or Vehicle concerned during the warranty period and the warranty does not apply to defects caused by:

(a) The Customer’s failure to properly maintain and use or operate the vehicle in accordance with the manufacturer’s recommendations;

(b) Failure to carry out any repairs recommended, either verbally or in writing, by Autopro Whangarei;

(c) Failure to return vehicle to Autopro Whangarei for servicing every six (6) months or 10,000km, whichever comes first, for inspection and maintenance of repairs;

(d) The engine being subjected to overheating, use of tap water, loss of coolant, loss of oil, lack of adequate maintenance or general signs of abuse;

(d) Any other party dismantling or interfering with work carried out by Autopro Whangarei.

Liability

Force Majeure: Notwithstanding any other provision of this Agreement, non-performance by Autopro Whangarei of any of its obligations under this Agreement will be excused, without liability for non-performance, during the time and to the extent that performance is prevented, wholly or substantially, by a Force Majeure Event. Performance of any obligation affected by a Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event.

Parts and/or Services Liability: To the maximum extent permitted by law and subject to clauses Exclusions and Indemnity, the liability of Autopro Whangarei (whether in contract, equity, tort (including negligence) or otherwise) for any defect in or non-compliance of the Parts and/or Services is limited, at the option of Autopro Whangarei , to either replacement or repair of such defective or non-complying items or in accordance with any express provisions of any manufacturer's warranties, to damages not exceeding the Price paid by Customer to Autopro Whangarei for such defective or non-complying items.

Exclusions: To the maximum extent permitted by law and notwithstanding any other provision of this Agreement, under no circumstances will the measure of damages against Autopro Whangarei for any breach of this Agreement, equity, tort (including negligence), or other action or contravention of any statute, include special, incidental, consequential or indirect loss or any consequential economic damage, nor will Autopro Whangarei be liable for:

(a) any breach to the extent that such breach is attributable to the prior default, negligence, misconduct or breach by Customer; or

(b) damage or loss resulting from a Force Majeure Event.

Indemnity: Customer hereby indemnifies and holds harmless Autopro Whangarei , its employees, agents and contractors from and against any and all claims, liabilities, loss or expenses asserted against or incurred by any or all of them arising in whole or in part, out of or by reason of the:

(a) failure by Customer to follow instructions, warnings or recommendations furnished by Autopro Whangarei , its employees, agents or contractors in connection with the Parts and/or Services; or

(b) breach of this Agreement by Customer or negligence of Customer.

Default

Remedies: To the maximum extent permitted by law, if an Event of Default occurs, payment of any money owing by Customer to Autopro Whangarei under this Agreement will immediately become due and payable and Autopro Whangarei may:

(a) suspend performance of any or all of its obligations under this Agreement;

(b) enforce its security interest under this Agreement;

(c) appoint a receiver (without Customer's consent) in respect of any Parts and such receiver will be authorised to do anything referred to in this Agreement and otherwise to exercise all rights and powers conferred on a receiver by law; and/or

(d) enter any property where the Parts may be and take possession of and remove such Parts without being responsible for any damage caused and all costs or expenses incurred by Autopro Whangarei as a result of any such action will be payable by Customer upon demand.

Right of Resale: Autopro Whangarei may resell any Parts removed under clause Default (d) and apply the proceeds in or towards payment of any monies payable to Autopro Whangarei by Customer whether under this Agreement.

Personal Properties Security Act 1999

Security Agreement: Without limiting any other provisions of this Agreement, Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 1999 (the PPSA), which provides for a security interest in Autopro Whangarei 's favour in respect of any Parts (other than in respect of any Parts paid for in full by Customer) provided by Autopro Whangarei to Customer, and all Customer's present and future rights in relation to such Parts, to secure the payment by Customer to Autopro Whangarei of the Price payable in respect of such Parts and all other amounts payable under this Agreement.

Further Assurances: On request by Autopro Whangarei , Customer will promptly do all things (including signing any documents) and provide all information necessary to enable Autopro Whangarei to perfect and maintain the perfection of any security interest Customer grants to Autopro Whangarei (including by registration of a financing statement).

Contract Out: To the maximum extent permitted by law, Customer:

(a) agrees that nothing in sections 114(1)(a) (to receive notice of sale of goods), 116 (to receive a statement of account), 117(1)(c) (to receive any surplus), 119 (to recover any surplus), 120(2) (to receive notice of proposal to take goods), 133 (to reinstate security agreement) and 134 (limit on reinstatement) of the PPSA will apply to this Agreement or the security under this Agreement;

(b) waives all its rights under sections 121 (to object to proposal), 125 (damage to goods on removing accession), 129 (notice of removal of accession), 131 (court order preventing removal or accession) and 132 (redemption of collateral) of the PPSA; and

(c) waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest created by this Agreement.

Personal Guarantee

The Customer agrees to grant Autopro Whangarei such security(ies) as Autopro Whangarei may request so as to secure all sums due to Autopro Whangarei and in particular, where you are an unlisted company, to procure a personal guarantee from your principal shareholder or shareholders.

Privacy Act 1993

Collection and Use: Customer authorises Autopro Whangarei or Autopro Whangarei 's agent to:

(a) access, collect, retain and use any information about Customer for the purpose of assessing Customer's creditworthiness or for the purpose of marketing products and services to Customer; and

(b) disclose information about Customer, whether collected by Autopro Whangarei from Customer directly or obtained by Autopro Whangarei 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 Customer.

Copy: Customer has the right to request a copy of the information about Customer retained by Autopro Whangarei and the right to request Autopro Whangarei to correct any incorrect information about Customer held by Autopro Whangarei .

Privacy Policy: All information collected in respect of Customer will be held and used by Autopro Whangarei in accordance with the Autopro Whangarei Privacy Policy, a copy of which is available on request from Autopro Whangarei .

General

Customer Assignment: Customer may not assign or otherwise transfer all or any of its rights and obligations under this Agreement without the prior written approval of Autopro Whangarei .

Entire Agreement: To the maximum extent permitted by law, this Agreement (including any Repair Order) and any other written policy documentation supplied by Autopro Whangarei to Customer from time to time constitute the entire understanding and agreement of the parties relating to the matters contemplated by such documents and supersedes and extinguishes all prior agreements, arrangements, understandings or representations between the parties relating to such matters.

Variations: Any requirement for Parts and/or Services that is not expressly included in the Repair Order will be variations to the Repair Order. Autopro Whangarei will not be obliged to carry out any variation unless agreed by Autopro Whangarei and Autopro Whangarei 's terms and conditions for carrying out the variation are accepted in writing by Customer. Customer will be liable for any costs incurred by Autopro Whangarei as a consequence of any amendment, variation to or cancellation of a Repair Order and/or this Agreement.

Waiver: No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by either party in respect of any breach of the other party’s obligations under this Agreement is to:

(a) operate as a waiver or prevent the subsequent enforcement of that obligation; or

(b) be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.

Severance: To the maximum extent permitted by law, any unlawful or voidable provision in this Agreement will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without affecting the validity, legality or enforceability of the remaining provisions, provided that the reading down or severing does not materially affect the purpose of or frustrate this Agreement.

Privity: The parties acknowledge and agree that the provisions of this Agreement confer a benefit on and are intended to be enforceable by Autopro Whangarei for all purposes (including the Contracts (Privity) Act 1982).

Governing Law: This Agreement is governed by and will be construed in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

Special Terms: Any special terms noted on a Repair Order override all other terms of this agreement.