GENERAL: All Goods sold by Motortech 4×4 to the Customer are sold subject to the following terms and conditions, which may be changed by Motortech 4×4 in any manner and at any time and any such changes will be notified by the Customer in writing by Motortech 4×4. The Customer acknowledges that by instructing Motortech 4×4 and/or purchasing the Goods from Motortech 4×4, the Customer has read, understood and accepted the following terms and conditions and agrees to be bound by them.
“Agreement” means this Agreement.
“Customer” shall mean the Customer, any person acting on behalf of and with the authority ofthe Customer, or any person purchasing Goods from Motortech 4×4.
“Goods” shall mean all Goods, chattels and/or services, provided by Motortech 4×4 to theCustomer, and shall include without limitation the provision of all mechanical repairs andservices to vehicles, accessories, towing services, all charges for labour and work, hirecharges, insurance charges, or any fee or charge associated with the supply of Goods byMotortech 4×4 to the Customer.
“Motortech 4×4” shall mean North Harbour 4×4 Limited trading as Motortech 4×4 Auckland, orany agents or employees thereof.
“Price” shall mean the cost of the Goods as agreed between Motortech 4×4 and the Customer subject to clause 3 of this contract.
COLLECTION OF INFORMATION:
The Customer authorises Motortech 4×4 to collect, retain and use any information about theCustomer, or for the purpose of assessing the Customer’s credit worthiness, enforcing any rightsunder this contract, or marketing any goods and services provided by Motortech 4×4 to any otherparty.
The Customer authorises Motortech 4×4 to disclose any information obtained to any person forthe purposes set out in clause 3.
Where the Customer is a natui-al person the authorities under clauses 3 are authorities or consents for the purposes of the Privacy Act 1993.
Where no price is stated in writing or agreed to orally the Goods shall be deemed to be sold atthe current ·amount as such Goods are sold by Motortech 4×4 at the time of the contract. Allprices for the Products shall be in New Zealand dollars.
The price may be increased by the amount of any reasonable increase in the cost of supply ofthe Goods that is beyond the control of Motortech 4×4 between the date of the contract anddelivery of the Goods.
Payment for Goods shall be made:
Where the Customer has an existing account with Motortech 4×4, or has arranged anaccount with Motortech 4×4, the price shall be paid in full without deduction or set offon or before the 20th day of the month following the date of the invoice: or
Where Motortech 4×4 has specified the price shall be paid in full within 7 daysfollowing the date of the invoice: or
In full on receipt of delivery of Goods or completion of work (“the due date”).
Should the Customer fail to make payment on the due date the Customer shall pay to Motortech4x4 interest on the amount outstanding at the rate of 5% above Motortech 4×4’s bank’s currentvariable lending rate from the due date for payment until payment is made.
Any expenses, disbursements and legal costs incurred by Motortech 4×4 in the enforcement ofany rights contained in this Agreement shall be paid by the Customer, including any reasonablesolicitor’s fees or debt collection agency fees.
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitutepayment until such negotiable instrument is paid in full.
Where a quotation is given by Motortech 4×4 for Goods:
The quotation shall be valid for 30 days from the date of issue: and
The quotation shall be exclusive of Goods and Services Tax unless specifically statedto the contrary.
Where Goods are required in addition to the quotation the Customer agrees to pay for theadditional cost of such Goods.
Delivery of Goods shall be deemed complete when Motortech 4×4 gives possession of theGoods for delivery to the Customer, or possession of the Goods is given to a common carrier,or other bailee for the purposes of transmission to the Customer.
The time agreed for delivery shall not be an essential term of this contract unless the Customergives written notice to Motortech 4×4 making time of the essence.
Where Motortech 4×4 delivers Goods to the Customer by installments and Motortech 4×4 failsto deliver one or more installments the Customer shall not have the right to repudiate thecontract but shall have the right to claim compensation as a severable breach.
The Customer shall inspect the Goods upon receipt and shall within 7 working days after receiptnotify Motortech 4×4 of any discrepancies or other abnormalities it wishes to make a claim for, ifnot, then the Customer shall be deemed to have accepted the Goods.
Motortech 4×4 shall issue a credit note to the Customer for any Goods authorised by Motortech4x4 to be returned to it as faulty. All Goods returned must be returned in their original conditionand packaging, together with the invoice and packing slip which accompanied the Goods. Allreturns will remain at the sole risk.
The Goods remain at Motortech 4×4’s risk until delivery to the Customer, but when title passesto the Customer pursuant to clause 10.1 of this Agreement the Goods are at the Customer’srisk whether delivery has been made or not.
The Customer is responsible for insurance of all Goods from the time of delivery.
The Customer authorises Motortech 4×4 to contract either as principal or agent forthe provision of Goods that are the matter of this contract. Where Motortech 4×4 enters into acontract of this type it shall be read with and form part of this Agreement and the Customeragrees to pay any amounts due under that contract.
Ownership and title in the Goods, or any proceeds from the Goods, shall not pass to theCustomer until the Customer has paid in full for the Goods in accordance with this Agreement.
If Motortech 4×4 supplies Goods without first obtaining payment for the same, then theCustomer acknowledges and agrees that Motortech 4×4 shall be entitled at the cost in allrespects of the Customer to register any security interest that Motortech 4×4 possesses inrespect of all Goods supplied and their proceeds on the Personal Property Securities Registerand that Motortech 4×4’s security interest survives until the Customer has paid in full for all ofthe Goods supplied.
The Customer acknowledges and agrees that until payment has been made to Motortech 4×4 nfull for all of the Goods supplied:
Motortech 4×4 possesses a Purchase Money Security Interest (“PMSI”) in the Goods;and
If the Customer sells the Goods prior to payment to Motortech 4×4, the Customer willpay the proceeds derived from that dealing into a separate account for the benefit andas trustee for Motortech 4×4 so that those proceeds remain identifiable in connectionwith that dealing and the Goods.
If at any time Motortech 4×4 has sufficient cause to exercise its rights under section 109 of thePPSA, the Customer irrevocably grants Motortech 4×4 the right and licence to enter upon thepremises, without notice and without liability whatsoever to the Customer, or to any person orcompany claiming through the Customer.
The Customer covenants that it will assist and co-operate with Motortech 4×4 by completing anydocumentation and/or providing any information as may be required by Motortech 4×4 in orderfor Motortech 4×4 to achieve and perfect its desired security position under the PPSA.
In this clause 10 where used the following terms shall have the meanings as ascribed to themunder the PPSA (Personal Property Securities Act 1999 and associated regulations):”Accessions”, ‘Commingled Goods’, “Inventory”, “Perfect”, “Non-Purchase Money SecurityInterest”, “Proceeds”, “Purchase Money Security Interest” and “Security Interest”
LIABILITY: The liability of Motortech 4×4 whether in contract, tort or otherwise for any loss,damage or injury arising directly or indirectly from any defect in or non compliance of the Goods orfrom any other breach of Motortech 4×4’s obligations under this Agreement shall not exceed anamount equivalent to the price invoiced by Motortech 4×4 for the faulty Goods or the Goods givingrise to the claim. Motortech 4×4 shall not be liable for any consequential injury or specific damageor loss of any kind whatsoever, nor shall Motortech 4×4 be liable for any damage or loss causedby the Customer’s employees, agents, customer or any other persons whatsoever (whethersimilar to the foregoing or not). Motorte.ch 4×4 will not be liable for any damage to the Goods dueto external causes, including accident, abuse, misuse, failure to perform preventativemaintenance, usage not in accordance with directions and/or instructions for Goods.
INDEMNITY: The Customer hereby defends, indemnifies and holds harmless Motortech 4×4 fromand against any and all costs, expenses (including legal expenses), losses, injuries, liabilities,damages and claims of any kind whatsoever including death or personal injury to persons, theclient and/or customers of the Customer, or any damage to property or any other claims, losses,costs or demands arising out of or related to the Goods including any fire, personal injury, theft,property damage or otherwise, as well as any breach by the Customer of the terms of thisAgreement and errors and omissions or professional liability, any negligent or intentional act oromission or other similar obligations of the Customer or any employees, contractors and/oragents of the Customer.
CONSUMER GUARANTEES ACT: The Customer acknowledges and confirms to Motortech 4x4that where it acquires the Goods for business purposes, then for the purposes of this Agreement itis not a Consumer (as defined in the Consumer Guarantees Act 1993 (“the Act’), and accordinglythe provisions of the Act do not apply. Nothing in this Agreement is intended to have the effect ofcontracting out of the provisions of the Consumer Guarantees Act 1993 where the Customer is aConsumer except to the extent permitted by the Act, and these terms and conditions are modifiedto the extent necessary to give effect to that intention. All representations, descriptions, warrantiesor terms (including any condition or warranty expressed or implied by law, statute or otherwise)not expressly included in these terms and conditions are hereby excluded.
The Customer agrees that Motortech 4×4 may exercise a general lien against any Goods or anyproperty belonging to the Customer that is in the possession of Motortech 4×4 for all sumsoutstanding under this contract and any other contact to which the Customer and company areparties.
If the lien is not satisfied within 7 days of the due date Motortech 4×4 may having given noticeof the lien at its option either:
Remove such Goods or property and store them in such a place and in such amanner as Motortech 4×4 shall think fit and proper and at the risk and expense of theCustomer; or
Sell such Goods or property or part thereof upon such terms as it shall think fit andapply the proceeds in or towards discharge of the lien and costs of sale without beingliable to any person for damage caused.
Motortech 4×4 agrees to supply Goods that in the reasonable opinion of Motortech 4×4 are ofmerchantable quality and conform to sample. All other warranties, descriptions, representationsand conditions as to fitness or suitability for any purpose, tolerance to any condition, merchantability or otherwise whether of a like nature or not and whether expressed or impliedby law, trade, custom or otherwise are expressly excluded. No agent or representative ofMotortech 4×4 is authorized to make any representations, statements, warranties, conditions oragreements not expressly specified in this Agreement and Motortech 4×4 is no in any waybound by any such representations, statements, warranties, conditions or agreements.
Notwithstanding the above as a member of the Motor Trade Association Inc. Motortech 4x4subscribe to a code of ethics and is bound to observe the policies and rules of that organisationincluding any warranties that may apply.
The Customer shall ensure that the Goods are not used for any purpose for which they are notsuitable and shall solely be responsible to using all necessary skill and care in handling, storingand using the Goods. The Goods must be used strictly in accordance with the instructions anddirections provided and the Customer must read the packaging and any other instructions ordirections regarding the use of the Goods carefully. The Customer acknowledges thatMotortech 4×4 makes no specific representation as to the effectiveness of the Goods or thatthe use of the Goods will result in any particular commercial outcome or result.
The Goods are supplied upon the condition that the Customer makes its own determination asto fitness or suitability for the Customer’s purpose prior to use. Motortech 4×4 will not be liablefor any damages, loss or injury, including, but not limited to special or consequential damagesthat result from the use of or the inability to use, the Goods.
Motortech 4×4 shall, without any liability, and without any prejudice to any other right it has inlaw or equity, have the right by notice to suspend or cancel in whole or in part any contact forthe supply of Goods to the Customer if the Customer fails to pay any money owing after thedue date or the Customer commits an act of bankruptcy as defined in section 19 of theInsolvency Act 1967.
Any cancellation or suspension under clause 17.1 of this agreement shall not affect Motortech4x4’s claim for money due at the time of cancellation or suspension or for damages for anybreach of any terms of this contract or the Customers obligations to Motortech 4×4 under thiscontract.
LICENCE: The Customer authorises Motortech 4×4 to enter its premises at any time to tow avehicle.
The Customer shall not assign all or any of its rights or obligations under this contract withoutthe written consent of Motortech 4×4.
Neither the Customer or Motortech 4×4 shall be liable for any breach under this Agreement inthe event of a “force majeure”, which shall mean failure or delay in supply or deliveryoccasioned by strike, industrial dispute, natural disaster, shortage or unavailability of stocks ofproducts or raw materials, shortage of labour, lack of skilled labour, failure of supplier, delay intransit, import restriction, legislative governmental or other prohibition or restriction, fire, flood,hostilities, commotions or other causes whatsoever (whether similar to the foregoing or not)beyond a party’s reasonable control.
Failure by Motortech 4×4 to enforce any of the terms and conditions contained in this contractshall not be deemed to be a waiver of any of the rights or obligations of Motortech 4×4 hasunder this contract.
The Customer shall be responsible for obtaining, paying for and maintaining _in force all permits,approvals, authorizations, authorities, licences and consents of all regulatory authoritieswhatsoever which are or may be necessary or advisable in connection with the Goods.
The laws of New Zealand shall apply to this contract except to the extent expressly negativedor varied by this contract.
Where the terms of this contract are at variance with the order or instruction from the Customer,this contact shall prevail.
If any provision of this contract shall be invalid, void or illegal or unenforceable the validityexistence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired