Ultra Clean Autos Limited Terms and Conditions of Trade
1. Definitions
1.1. Company shall mean Ultra Clean Autos Limited and its successors and
assigns.
1.2. Customer shall mean the purchaser of goods and services from the
Company or any person acting on behalf of and with the authority of the
Customer.
1.3. Guarantor means that person (or persons), or entity that agrees to be liable
for the debts of the Customer on a principal debtor basis.
1.4. Goods shall mean all goods supplied by the Company to the Customer (and
where the context permits include any supply of Services).
1.5. Services shall mean all services supplied by the Company to the Customer
and includes any advice or recommendations (and where the context permits
includes any supply of Goods).
1.6. Price means the price payable for the Goods and Services as agreed
between the Company and the Customer subject to clause 3 of this
agreement.
1.7. Vehicle means the vehicle identified on the front page of these terms and
provided by the Customer to the Company for the provision of services.
2. Acceptance
2.1. Any instructions received by the Company from the Customer for the supply
of Goods or Services shall constitute acceptance of the terms and
conditions contained in this agreement.
2.2. Where more than one Customer has entered into this agreement, the
Customers shall be jointly and severally liable for all payments due under this
agreement.
3. Price
3.1. At the Company’s sole discretion, the Price shall be either;
3.1.1. The Price as indicated on invoices provided by the Company to the
Customer in respect of Goods and Services supplied; or
3.1.2. The Company’s quoted Price (subject to clause 6 below), which shall
be binding on the Company provided that the Customer accepts in
writing the Company’s quotation within thirty (30) days of the date of the
quotation.
3.2. The Price may be increased by the amount of any reasonable increase in the
cost of supply of the Goods and Services that is beyond the control of the
Company between the date of the contract and delivery of the Goods and
Services.
3.3. Labour costs include any time spent traveling to and from the workshop to
the Customer, including any time taken to procure any materials and goods
required for the job.
3.4. 3The Company’s prices are exclusive of Goods and Services Tax (GST)
unless otherwise stated, and the Customer is required to pay GST in
addition to the price.
4. Payment
4.1. 4.1 Payment terms will be stated on each invoice. Accounts are strict to be
paid in full 20 th of the month following the date of invoice or the date that is
stated on the invoice (whichever date is the earliest). Payment must be made
by way of cash, direct credit, or any other method as agreed to between the
Company and the Customer.
4.2. The Company reserves the right to request payment for any Goods and
Services prior to commencement of works.
4.3. The Customer may not deduct, set off or withhold any amount from any
money owing to the Company other than prior approved retentions as per
Construction Contracts Act 2002.
5. Default
5.1. The following shall constitute an event of default by the Customer:
5.1.1. Any amount due to the Company by the Customer becomes overdue,
or in the Company’s opinion the Customer will be unable to pay its debts
as they fall due;
5.1.2. The Customer advises that it will not pay any amounts due to the
Company by the due date;
5.1.3. 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;
5.1.4. a receiver, manager, liquidator (provisional or otherwise) or similar
person is appointed in respect of the Customer or any asset of the
Customer,
5.1.5. Any material adverse change in the financial position of the Customer;
or
5.1.6. The Customer changes or proposes to change its name without first
notifying the Company of the new name not less than 7 days before the
change takes effect.
5.2. In the event of the Customer being in default then in addition and without
prejudice to the Company’s other remedies at law and under this
agreement:
5.2.1. All amounts owing to the Company shall immediately become due and
payable;
5.2.2. The Company shall be entitled to cancel all or any part of any order of
the Customer which remains unperformed;
5.2.3. The Customer shall at the Company’s discretion (and without affecting
any other right the Company may have), pay default penalty interest of
5% per month on any amount outstanding to the Company; and
5.2.4. The Customer shall also be liable to pay any expenses, disbursements,
or legal expenses incurred by the Company in the enforcement of any
rights contained within this agreement, including any reasonable
solicitor’s fees or debt collection fees.
6. Quotation
6.1. Where a quotation is given by the Company for Goods and Services:
6.1.1. The quotation will be valid for 30 days from the date of issue of the
quotation unless otherwise stated.
6.1.2. The quotation shall be exclusive of GST unless otherwise stated.
6.1.3. All goods and services are subject to supplier availability and supplier
price variation. If there is a substantial change, this will necessitate a
price review.
7. Ownership and Risk of Vehicles
7.1. The Customer confirms they are the registered owner of the Vehicle or are
authorised by the registered owner to accept these Terms of Trade.
7.2. The Vehicle remains at the risk of the Company until delivery to the
Customer. Delivery shall be deemed complete when the Customer retrieves
their Vehicle. Any issues or complaints must be made within 7 days,
7.3. If the Vehicle is damaged or destroyed prior delivery to the Customer, the
Company is entitled, without prejudice to any of its other rights or remedies
under this agreement (including the right to receive payment of the balance of
the Price for the Services), to receive all insurance proceeds payable in
respect of the Vehicle. This applies whether or not the Price has become
payable under this agreement. The production of this agreement by the
Company is sufficient evidence of the Company’s rights to receive the
insurance proceeds without the need for any person dealing with the
Company to make further inquiries.
7.4. Upon collection of the vehicle the Customer is deemed to have inspected the
condition of the vehicle in full and accepted its condition and the Goods and
Services supplied by the Company.
8. Ownership of Goods
8.1. Title and ownership in any Goods supplied by the Company to the Customer
shall not pass to the Customer until:
8.1.1. The Customer has paid all amounts owing for the particular Goods;
and
8.1.2. The Customer has met all other obligations due by the Customer to the
Company in respect of all agreements between the Company and the
Customer, and that the Goods, or proceeds of the sale of the Goods,
shall be kept separate until the Company shall have received payment
and all other obligations of the Customer are met.
8.2. It is further agreed that:
8.2.1. Until such time as ownership of the Goods shall pass from the
Company to the Customer the Company may give notice in writing to the
Customer to return the Goods or any of them to the Company. Upon
such notice, the rights of the Customer to obtain ownership or any other
interest in the Goods shall cease.
8.2.2. If the Customer fails to return the Goods to the Company then the
Company or the Company’s agent may enter upon and into land and
premises owned, occupied or used by the Customer, or any premises as
the invitee of the Customer, where the Goods are situated and take
possession of the Goods, without being responsible for any damage
thereby caused.
9. Personal Property Securities Act 1999 (PPSA)
9.1. Upon agreeing to these terms and conditions in writing the Customer
acknowledges and agrees that:
9.1.1. These terms and conditions constitute a security agreement for the
purposes of the PPSA; and
9.1.2. A security interest is taken in all Goods previously supplied by the
Company to the Customer (if any) and all Goods that will be supplied in
the future by the Company to the Customer during the continuance of the
parties relationship.
9.2. The Customer undertakes to:
9.2.1. 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 Company may reasonably require to register a
financing statement or financing change statement on the Personal
Property Securities Register (PPSR);
9.2.2. indemnify, and upon demand reimburse, the Company for all
expenses incurred in registering a financing statement or financing
change statement on the PPSR or releasing any Goods charged
thereby;
9.2.3. not register a financing change statement or a change demand without
the prior written consent of the Company;
9.2.4. give the Company not less than fourteen (14) days prior written notice
of any proposed change in the Customer’s name and/or any other
change in the Customer’s details (including but not limited to, changes in
the Customer’s address, facsimile number, or business practice); and
9.2.5. immediately advise the Company of any material change in its
business practices of selling the Goods which would result in a change in
the nature of proceeds derived from such sales.
9.3. The Company and the Customer agree that nothing in sections 114(1)(a),
133, and 134 of the PPSA shall apply to this agreement.
9.4. The Customer waives its rights as a debtor under sections 116, 120(2), 121,
125, 126, 127, 129, 131, and 132 of the PPSA.
9.5. Unless otherwise agreed to in writing by the Company, the Customer waives
its right to receive a verification statement in accordance with section 148 of
the PPSA.
9.6. The Customer unconditionally ratifies any actions taken by the Company
under and by virtue of the power of attorney was given by the Customer to
the Seller under clauses 9.1 to 9.5.
10. Warranties
10.1. All warranties, terms, and conditions (including, without limitation,
warranties and conditions as to fitness for purpose and merchantability),
whether express or implied by statute, common law or otherwise, are hereby
excluded to the extent permitted by law.
10.2. Subject to the conditions of warranty set out in Clause 10.1 above, the
Company warrants that if any defect in any workmanship manufactured by
the Company becomes apparent and is reported to the Company within
twelve (12) months of the date of delivery (time being of the essence) then
the Company will (at the Company’s sole discretion) repair the defect or
replace the workmanship.
10.3. The conditions applicable to the warranty given by Clause 10.2 are:
10.3.1. The warranty shall not cover any defect or damage which may be
caused or partly caused by or arise through:
10.3.1.1. Failure on the part of the Customer to properly maintain any
Goods; or
10.3.1.2. Failure on the part of the Customer to follow any instructions or
guidelines provided by the Company; or
10.3.1.3. Any use of any Goods otherwise than for any application
specified on a quote or order form; or
10.3.1.4. The continued use of any Goods after any defect becomes
apparent or would have become apparent to a reasonably prudent
operator or user; or
10.3.1.5. Fair wear and tear, any accident or act of God.
10.3.2. The warranty shall cease and the Company shall thereafter in no
circumstances be liable under the terms of the warranty if the
workmanship is repaired, altered, or overhauled without the Company’s
consent.
10.3.3. In respect of all claims the Company shall not be liable to compensate
the Customer for any delay in either replacing or repairing the
workmanship/Goods or in properly assessing the Customer’s claim.
10.4. For Goods not manufactured by the Company but installed by the
Company within the manufacturer’s specifications and recommendations, the
warranty shall be the current warranty provided by the manufacturer of the
Goods. The Company shall be under no liability whatsoever except for the
express conditions as detailed and stipulated in the manufacturer’s warranty.
11. Consumer Guarantees Act
11.1 If the Customer is acquiring or holding itself out as acquiring Goods or
Services under this agreement for business purposes, then the Consumer
Guarantees Act 1993 will not apply.
12. Personal Information
12.1 Any personal information that the Customer supplies to the Company is
confidential. The Company may need to disclose the Customer’s information to
its agents or other organisations, but only as needed to carry out the Company’s
Services, or as required by law.
12.2 The Company may store some or all of the Customer’s personal information
and use it for marketing and research purposes. The Company will never sell the
Customer’s personal information to any other company.
12.3 The Company may use photographs of the Customer’s Vehicle for
marketing and social media purposes and the Customer consents to such use.
This will be done in such a way as to protect the Customer’s personal
information including names and registration numbers.
13. Limitation of Liability
13.1 The Company shall not have any liability or responsibility to the Customer
for any loss, damage or injury, whether arising in contract, tort, equity or
otherwise, which does not flow directly or naturally (i.e. in the ordinary course of
things) from a breach of this agreement including, in each case, consequential
loss of business or profits or other loss.
14. Intellectual Property
14.1 The Customer warrants to the Company that all designs or instructions to
the Company will not cause the Company to infringe any patent, registered
design or trademark in the execution of the Customer’s order.
15. Personal Guarantee or Company Directors or Trustees
15.1 If the Customer is a company or trust, the director(s) or trustee(s) signing
this contract, in consideration for the Company agreeing to supply Goods and
Services and grant credit to the Customer at their request, also sign this contract
in their personal capacity and jointly and severally personally undertake as
principal debtors to the Company the payment of any and all monies now or
hereafter owed by the Customer to the Company and indemnify the Company
against non-payment by the Customer. Any personal liability of a signatory hereto
shall not exclude the Customer in any way whatsoever from the liabilities and
obligations contained in this contract. The signatories and Customer shall be
jointly and severally liable under the terms and conditions of this contract and for
payment of all sums due hereunder.
16. General
16.1 The Company will not be liable for failure to meet its obligations if the failure
is brought about by a force majeure circumstance (i.e. any circumstances
outside the Company’s control).
16.2 Except as specifically provided, no amendment to this agreement will be
effective unless it is in writing and signed by both parties.
16.3 No exercise or failure to exercise or delay in exercising any right or remedy
by a party shall constitute a waiver by that party of that or any other right or
remedy available to it.
16.4 If any provision of this agreement or its application to any party or
circumstance is or becomes invalid or unenforceable to any extent, the remainder
of this agreement and its application shall not be affected and shall remain
enforceable to the greatest extent permitted by law.
16.5 This agreement shall be governed by New Zealand law, and the parties
submit to the non-exclusive jurisdiction of the courts of New Zealand.
