1. What is the purpose of this agreement?
1.1 This agreement sets out the terms that apply to the relationship between you (and “your”) and Autohaus New Zealand Limitedtrading as Autohaus Auckland (“we”, “us” and “our”).
2. What information about you can we collect?
2.1 You agree to provide is with and allow us to use all information necessary to give effect to this agreement, the provision of our goods and performance of our services.
2.2 Unless your consent is withdrawn in writing, you agree to the disclosure of information:
- to give effect to the provision of our goods and services;
- to enforce our obligations under this agreement or an additional agreement; when authorised by you or required by law;
- to assess credit worthiness; and
- to market any of our goods and services.
2.3 We will comply with the Privacy Act 1993. We will not use your information unless we have reasonably ensured it is accurate, complete, relevant and not misleading. If we give your information to another entity we will do everything reasonably within our power to prevent unauthorised use or disclosure of your information. You may access any of your information and ask us to correct any mistakes.
3. What are our goods and services?
3.1 “Good(s)” and “service(s)” means and includes without limitation:
- all inventory, vehicles, products, items, parts, units, equipment and materials (whether provided by us, separate, attached to something or performed work on);
- inspection, analysis, servicing, repairs, maintenance, supply, key tracking, treatment, valet, restoration, delivery, financing, courtesy cars and selling on your behalf; and
- agency fees, charges and out of pocket expenses incurred by us,
- identified in any document or electronic record issued by either party, all of which are deemed to be incorporated into and form part of this agreement, or as ours by marking or a manner of storage enabling identification.
4. What is the price?
4.1 The price is the cost of the goods and services as agreed between you and us from time to time subject to GST and out of pocket expenses payable by you such as freight.
If no price is stated, the price will be the amount at which that we provide the goods and services at the time of your order/request. The price is subject to reasonable changes.
5. What happens when we give you a quote?
5.1 If we give you a quote for goods and services: the quote will be valid for thirty (30) days, unless withdrawn or stated otherwise;
it will be exclusive of GST and freight, unless stated otherwise; you will be responsible for increased costs or receive the benefit of decreased costs resulting from any subsequent changes to the quote due to any inadequate orc inaccurate information, request/requirement for additional goods and services or alterations; and we may alter the quote due to circumstances beyond our control or clerical or computer error.
6. When and how do you pay us?
6.1 Subject to 6.2, you agree to pay us in full: on or before the 20th day of the month following the date of our invoice (“the due date”), unless otherwise stated; interest on any amount you owe after the due date at a rate of 2.5% per month; expenses incurred as a result of enforcing any of our rights contained in this agreement including PPSR, debt collection and legal fees; without set-off, deduction or counterclaim; and a deposit if required.
6.2 You agree to us allocating or reallocating any payment received from you towards any invoice. If no allocation is made then it is deemed to be in such a way that preserves the maximum value of our purchase money security interest in the goods.
6.3 If you will pay for the goods and services by credit card, we may require a retention, the value of the services will be deducted from your card and all payments will incur a surcharge of 2.5% of the value of the invoice.
6.4 You may be charged a $20 per day storage fee if you do not retrieve your vehicle within 48 hours of us notifying you that our services are complete.
6.5 You remain responsible for payment if a third party that you expect to pay either us or you fails to pay.
7. What warranties apply?
7.1 Manufacturers warranties where applicable and written warranties provided by us.
7.2 If you are in trade and/or are a business, you agree that the parties contract out of the Fair Trading Act 1986 and Consumer Guarantees Act 1993 to the extent permissible by law.
7.3 If we sell goods or vehicles on your behalf, we accept no responsibility for any loss, damage or faults of any kind arising after themsale. Accordingly, you fully indemnify us for any liability or infringements we may make when acting in accordance with your instructions.
7.4 We are not liable for delay or failure to perform our obligations if the cause is beyond our reasonable control.
7.5 Subject to 7.1-7.4, if we are deemed liable to you for any loss or damage of any kind, arising from provision of goods and services to you, including consequential loss, whether suffered or incurred by you or another person or entity and whether in contract tort or otherwise, then you agree that our total liability is limited to the value of the goods and services provided to you.
8. What if an issue arises in relation to our goods or services?
8.1 If an issue relating to the goods and services arises within twelve (12) months or 20,000 kms after our services are complete, we will rectify the issue at no added cost, subject to:
- you notifying us within seven (7) days of discovery during the relevant warranty period;
- you having used the goods and vehicle in accordance with the manufacturer’s/our instructions and the goods and vehicle having not been subject to abuse, neglect, misuse, accident or services of any unauthorised third party; and the issue not relating to general fair wear and tear.
8.2 If an issue arises relating to goods covered by a manufacturer’s warranty, we will arrange rectification, however you may be responsible for the price of our services for rectification.
8.3 If an issue arises relating to unwarranted goods, you will be responsible for the price of the goods and services for rectification as determined under clause 4.
8.4 Any goods the subject of 8.1-8.3 must not be destroyed or removed until we have inspected the goods or required the goods be returned to us.
9. Who is responsible for the goods and your vehicle?
9.1 We are responsible for goods until they are delivered to you in accordance with 9.2 or when ownership passes in accordance with 10.1, whichever comes first. However you are responsible for insuring your vehicle at all times.
9.2 Delivery is complete when we give the goods and/or vehicle to you or another person/entity who will give the goods and/or vehicle to you or when we goods and/or vehicle leave our premises. The time and date of delivery is an estimate only and not an essential term of our agreement.
10. What ownership and security rights do we have?
10.1 We retain ownership of and hold a security interest in all goods until you have paid us in full for all goods and services provided to you. While we retain ownership, you will store goods in such a way that they can be identified as provided by us.
10.2 You agree that we hold security interest in all of your present and after acquired property connected with goods and services provided to you, and: authorise us to register a financing statement and charge on the Personal Property Securities Register, and provide all information and signatures necessary to effect the same;
- will not register a financing charge or statement or charge demand in respect of goods without our prior written consent;
- waive your entitlement under s 148 of the Personal Property Securities Act 1999 (PPSA) to receive a copy of a verification statement where we have registered our interest;
- that both parties contract out of ss 114(1)(a), 133 and 134 of the PPSA;
- waive your rights as listed under s 107(2) of the PPSA; and
- to give us fourteen (14) days prior written notice of any proposed change in your name or details such as contact information.
10.3 If you default we may exercise a lien against any goods in our possession.
10.4 We own all existing and new intellectual property rights connected to the goods and services. You fully indemnify us for any intellectual property infringements we may make when acting in accordance with your instructions. You may use the goods only if paid in full and for the purpose for which they were intended and supplied by us.
11. What if you want to vary/cancel an order?
11.1 If you wish to vary, cancel or stop an order/request you must notify us in writing within a reasonable time. Where we have reasonably relied on your original instructions, you will be responsible for payment of the price of the goods and services.
12. When can a party cancel this agreement?
12.1 Subject to 11.1 and 12.2-12.4, either party may cancel this agreement at any time by giving fourteen (14) days prior written notice.
12.2 We have the right by fourteen (14) days prior written notice to suspend or cancel any part of any agreement for the provision of goods and services to you if you default by:
- failing to pay or indicating you will not pay any sum owing by the due date;
- any of your creditors seizing or indicating they will seize any goods provided to you;
- goods in your possession becoming materially damaged while any amount remains unpaid;
- being bankrupted, insolvent, under statutory management or put into liquidation;
- a receiver being appointed over or a landlord possessing any of your assets;
- a court judgment entered against you remaining unsatisfied for seven (7) days;
- breaching the terms of this agreement;
- and an adverse material change in your financial position.
12.3 You agree that if you default and the default is not remedied within fourteen (14) days of occurrence, we may enter any premises occupied by you to inspect or retrieve any goods and may store and/or sell any goods and credit the net sale proceeds to your account for the invoice value less adjustment for the condition of the goods.
12.4 Cancellation under 12.1 or cancellation or suspension under 12.2 will not affect either party’s claim for any amount due at the time of cancellation or suspension,
damages due to a breach of obligations of this agreement and any other legal rights either party may have. Upon cancellation any amount owed by you for goods and
services up to and including the date of cancellation will become immediately payable and all services terminate. You will be responsible for costs consequential to suspension or cancellation resulting from your default.
13. Does a personal guarantee apply?
13.1 If you are a director of a company or the trustee of a trust:
in exchange for us agreeing to supply goods and servicesand/or grant credit to the company or the trust, you also sign this agreement in your personal capacity,
and jointly and severally personally undertake as principal debtors, to pay everything that the company or trust owes us, and to indemnify us against non-payment
and/or default; and
any personal liability of you as director or trustee will not exclude the company or trust from the liabilities and obligations contained in this agreement.
14. What else is agreed?
14.1 We may outsource (contract out) part of the work required to perform our services, you agree to pay for all amounts due in connection with the same.
14.2 A failure by either party to enforce any of the terms of this agreement will not be deemed to be a waiver of any of the rights or obligations under this agreement.
14.3 Neither party may assign or transfer their rights or obligations under this agreement to any other without our prior written consent.
14.4 If any of these terms are determined to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining terms will not be affected.
14.5 This agreement supersedes all prior agreements, representations and warranties. Any instructions we receive from you will be subject to this agreement.
14.6 If any dispute arises between the parties either party must notify the other within seven (7) days of the date of delivery/possession, or if the dispute relates to
- delivery/incorrect or short supply within seventy two (72) hours of delivery. Any goods the subject of a claim must not be destroyed or
- removed from the delivery
- address until we have inspected the goods or required that they be returned to us.
14.7 Documentation related to this agreement may be served on you by email.
14.8 We will notify you of any changes to these terms and post the same on our website. Continued provision of goods and services to you will be subject to your signed acceptance of the same. All other variations must be mutually agreed in writing.
14.9 This agreement is governed by the laws of New Zealand.