GWD HOLDINGS LIMITED – CONDITIONS OF SALE
In these Conditions of Sale (“Conditions”) we have used “we”, “us” and “our” to refer to GWD Holdings Limited and “you” to refer to our Customer. By engaging us for our services, you agree to these Conditions and are deemed to have read and understood them.
1.1. You appoint us to provide the Agreed Services and/or supply Goods and we accept that appointment subject to these Conditions.
- AGREED SERVICES, GOODS
2.1. You acknowledge that in order to perform the Agreed Services we may need to repair or replace vehicle part(s) and supply and fit these Goods for this purpose. We agree to obtain your prior approval to proceed with repairing and/or replacing parts as part of the Agreed Services, before commencing this work.
2.2. We may also agree to procure and supply Goods to you without fitting them and these Conditions shall apply to such supply.
- DELIVERY OF GOODS
3.1. Goods must be collected from our premises, unless we agree otherwise, and delivery is deemed to have occurred at this time.
3.2. If a time for collection of Goods (or any part of them) has been given it is approximate only and is not deemed to be of the essence.
- OWNERSHIP AND RISK
4.1. Ownership of Goods supplied under these Conditions remains with us until payment for the Goods is received in full.
4.2. The risk in the Goods supplied passes to you on delivery. You agree not to sell, dispose of or part with possession of the Goods or do anything else inconsistent with our ownership of the Goods, from delivery until ownership in them passes to you.
4.3. It is your responsibility to ensure that your vehicle is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at our premises. The vehicle is at all times stored and repaired at your sole risk.
4.4. We are not responsible for valuables or other items left in your vehicle. It is your responsibility to remove any valuables from the vehicle prior to delivery to us.
5.1. Unless stated otherwise, any price we provide you for the Agreed Services or Goods is an estimate based on the anticipated cost for us to complete the Agreed Services or supply the Goods exclusive of GST and disbursements (the “Estimate”). The Estimate is subject to clause 6 below.
5.2. The Estimate is open for acceptance for 10 days after it is dated (unless withdrawn by us prior to it being accepted). We will not commence the Agreed Services or place an order for the Goods until such acceptance has been received in writing (e.g. by signing the Jobcard).
5.3. We will endeavour to advise you when 75% of the Estimate has been exceeded and when the Estimate has been reached.
6.1. All prices for Goods supplied are exclusive of GST and other taxes and duties payable by you and are subject to change without notice to you.
6.2. Notwithstanding any Estimate given, unless we have agreed in writing to be bound by a set price for performing the Agreed Services or supplying the Goods, you agree to pay us the actual cost of performing the Agreed Services or supplying the Goods as at the date of collection (“Actual Cost”).
6.3. The Actual Cost of supplying the Goods may exceed the Estimate if our costs (e.g. the amount we pay for the Goods or any part of them or the cost of transport, tax, exchange rates or other costs) or the specifications change.
6.4. The Actual Cost will be calculated by totalling the following:
a) the number of hours required to complete the Agreed Services multiplied by our hourly rate in $NZD as detailed on the Jobcard;
b) the cost of any Goods supplied by us (and fitted to enable us to perform the Agreed Services where applicable);
c) Any disbursements including without limitation tow or salvage fees or delivery costs) incurred by us on your behalf; and
d) all GST and other taxes payable by you.
6.6. Disbursements incurred by us on your behalf may include a reasonable mark-up by us.
- ADDITIONAL CHARGES
7.1. Where we are requested to store your vehicle, or where the vehicle is not collected within twenty-four (24) hours of advice to you that it is ready for collection, then we (at our sole discretion) may charge a fee of ($____ per day) for storage.
7.2. If we are requested to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to you irrespective of whether or not the repair goes ahead.
7.3. You acknowledge and agree that we shall be entitled to:
a) retain any components replaced during performance of the Agreed Services; and
b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
- TERMS OF PAYMENT
8.1. Payment in full for the Actual Cost is required:
a) upon completion of the Agreed Services/collection of the vehicle or Goods;
b) or by prior arrangement with us, by the 20th of the month following the date of the invoice except where we have agreed in writing that other terms shall apply
(the “Due Date”).
8.2. We reserve the right to amend the description, quantity and price of any Goods supplied to you in performance of the Agreed Services, if stated in error or omitted from the original invoice.
8.3. We may apportion any payments to outstanding accounts as we see fit.
8.4. We may notify you at any time of our intention to stop performing Agreed Services or supplying Goods to you on credit. This shall be without prejudice to your obligation to pay any amounts owing.
8.5. If you dispute any amounts invoiced you must provide details and reasons concerning the dispute within 10 days of the date of the invoice by writing to
us at firstname.lastname@example.org or PO Box 79, Invercargill, 9810.
8.6. Payment of all money shall be without set-off or deduction of any kind.
9.1. Subject to clauses 9.2 to 9.4 (inclusive), Goods supplied may be returned to us in exchange for a credit note provided they are:
a) returned within 14 days of being sold to you;
b) in a new and resalable condition, including the packaging; and
c) are accompanied by details of the original packing slip number and date.
9.2. Accepting Goods for return is at our sole discretion.
9.3. Goods that have been specifically procured for you, including indent Goods, are not eligible for return.
9.4. Any costs associated with the return of any Goods to the original supplier, including freight charges, will be deducted from any credit note we may issue to you in exchange for the return of the Goods.
10.1. You will be in default if:
a) payment is not received on the Due Date;
b) you breach any of your obligations under these Conditions;
c) you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or are declared bankrupt; or
d) an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.
10.2. If you are in default, we may, without prejudice to any remedies we may have at law, do one or more of the following:
a) charge default interest at the rate of 3% per month accruing daily on the total amount outstanding at the Due Date to the date of payment in full;
b) hold the vehicle until such time as payment in full is made and charge you all reasonable storage and recovery costs we incur;
c) cancel any other or future Agreed Services or Goods ordered by you in relation to future work where a credit arrangement has been entered into between the parties; or
d) enforce any security interests created by these Conditions.
10.3. You agree to pay any enforcement costs incurred by us due to your default, including any debt collection agency charges or any legal costs incurred on a solicitor/client basis.
- PERFORMANCE OF THE AGREED SERVICES
11.1. In performing the Agreed Services we agree to:
a) perform the Agreed Services with reasonable skill, care and diligence and in a professional manner;
b) endeavour to ensure that work is performed in accordance with any timeframes we agree with you;
c) liaise with you during the course of performing the Agreed Services as and when required.
11.2. You agree to provide us with all information reasonably requested by us to enable us to perform the Agreed Services and will take all reasonable steps to ensure such information is accurate and can be relied upon.
11.3. Any timeframe we have provided you with for completion of the Agreed Services is approximate only and can be altered by providing written notice to you if performance of the Agreed Services has been delayed due to factors beyond or partly beyond our control (i.e. delivery of parts from third parties).
- PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
12.1. All terms in this clause 12 have the meaning given in the PPSA and section references shall be to sections of the PPSA.
12.2. Clause 4.1 creates a security interest in Goods we supply to you including those supplied as part of performing the Agreed Services.
12.3. You agree not to grant any other security interest or any lien over Goods that we have a security interest in.
12.4. At our request you shall promptly sign any documents and do anything else required by us to ensure that our security interest constitutes a first ranking perfected security interest in the Goods.
12.5. We may at any time enter your premises and properties to uplift Goods that we have a security interest in.
12.6. If Goods that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled goods, our security interest will continue in the whole in which they are included. You agree not to grant any other security interest or any lien in either the Goods or in the whole.
12.7. You agree to waive:
a) any rights you may have under section 114(1)(a), 116, 120(2), 121, 125, 129, 131 and 133 of the PPSA; and
b) your right to receive a copy of any verification statement (as that term is defined in the PPSA).
12.8. You agree to give us prior written notice of a proposed change of your name or address.
13.1. You authorise us and the GWD Group to:
a) collect, retain and use your personal information and vehicle details for the purpose of marketing goods and services of the GWD Group to you and to contact you to recommend and agree actions in respect of your motor vehicle, including but not limited to, replacement and/or repairs of parts to ensure your vehicle obtains and ensure the vehicle’s safety, service and warrant of fitness inspection reminders (as applicable);
b) provide your personal and motor vehicle information to Toyota Finance New Zealand Limited or Holden New Zealand and/or the New Zealand Transport Agency for the purpose of updating their databases and to communicate with you about their products and services; and
- CREDIT INFORMATION AND PRIVACY
14.1. You authorise us and the GWD Group (and any financier or credit rating agency) to:
a) make enquiries or, collect, retain and use information about your financial standing from
any person for the purpose of assessing your creditworthiness; and
b) disclose information about you to anyone who guarantees, provides credit support or insurance in relation to your obligations to us and to anyone else necessary to enable us to exercise or enforce any rights, remedies and powers under these Conditions.
- LIMITATION OF LIABILITY
15.1. When you are in trade and acquire the Agreed Services and/or Goods for the purpose of the business and it is fair and reasonable that the parties are bound by this clause, you agree that:
a) the guarantees contained in the Consumer Guarantees Act 1993 (the “CGA”) in accordance with sections 2 and 43 of the CGA are excluded; and
b) the warranties contained in the Fair Trading Act 1986 (the “FTA”) at section 9, 12A and 13 of the FTA in relation to either parties conduct or unintentional representations are excluded.
15.2. Except to the extent that clause 15.1above applies, where the manufacturer or supplier of any Goods provides a warranty to us, we will (to the extent we are able to do so) make such warranty available to you.
15.3. We exclude all other warranties, conditions or obligations imposed upon us by statute, common law, equity or otherwise to the extent that we are permitted to by law.
15.4. Except to the extent that the law prevents us from excluding liability and as expressly provided for in clause 15.5, we shall not be liable for any loss or damage or liability of any kind (including consequential loss or loss of profit or business) whether suffered or incurred by you or another person and whether in contract, or tort including negligence, or otherwise and whether such loss or damage rises directly or indirectly from the Agreed Services or Goods provided by us to you. You agree to indemnify us against any claim made by any third person in respect of any loss, damage or injury which may occur.
15.5. To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Conditions or for any other reason, such liability is limited to the amount of the Actual Cost.
16.1. You shall inspect the Agreed Services/Goods upon delivery and you agree to notify us within 14 days (time being of the essence) in accordance with clause 21 of any defect, fault or issue with any aspect of the Agreed Services and/or Goods.
16.2. Failure to notify us will reduce or terminate any liability we may have to you (in contract, tort, including negligence, or otherwise) in relation to the defect, fault or issue, proportionate to the prejudice we may suffer as a result of your failure to comply with this clause.
16.3. If you make a claim to us in writing with 14 days of the Goods or Agreed Services being provided, we may, at our discretion, repair or replace the Goods or re-perform the Agreed Services or refund the Actual Cost of the Goods and/or performing the Agreed Services, provided:
a) you provide the date and number of any invoice relating to the Agreed Services or Goods;
b) we have reasonable opportunity to inspect the work;
c) the Goods must have been returned at your cost within 14 days of delivery;
16.4. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances,
16.5. We will not accept responsibility for any damage resulting in any Goods fitted by us and subsequently adapted for a use for which they were not intended are altered in any way by an unqualified tradesman who is not a representative of us.
16.6. Where performance of the Agreed Services and/or supply of Goods are delayed due to weather, courier transportation issues or delays with a manufacturer or supplier, we will not be liable to you for any loss or damage you suffer as a result of such delays.
17.1. The parties agree to maintain all information relating to the Agreed Services and/or Goods as confidential. The parties will not publish, release or disclose any information without the other party’s prior written consent.
17.2. Confidential information includes all non-public information and material you receive from us including our prices.
- INTELLECTUAL PROPERTY
18.1. Where we have designed, drawn or created specific items for you, then the copyright in those designs and drawings and items shall remain vested in us, and shall only be used by you with our prior written authority.
18.2. You warrant that all designs or instructions to us will not cause us to infringe any patent, registered design or trademark in the execution of your order and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement.
19.1. We may cancel any contract to which these Conditions apply or cancel delivery of any Agreed Services at any time before the Agreed Services are delivered by giving written notice to you. On giving such notice we shall repay to you any sums paid in respect of the purchase price. We shall not be liable for any loss or damage howsoever arising from such cancellation.
19.2. In the event you cancel the delivery of any Agreed Services you shall be liable for any loss incurred us (including, but not limited to, any loss of profits) up to the time of cancellation.
20.1. You must not assign any of your rights, powers or obligations under these Conditions without our written approval.
20.2. We may licence and/or assign all or any part of our rights and/or obligations under these Conditions without your consent.
20.3. We may elect to subcontract out any part of the Agreed Services but shall not be relieved from any liability or obligation under these Conditions by so doing. Furthermore, you acknowledge and agree that you no authority to give any instruction to any of our sub-contractors without our authority.
21.1. Any notice may be given by phone, in person, posted or sent by email to you (or to any of your company directors as applicable).
22.1. Any variation to the Agreed Services must be in writing and agreed to by both parties and will be subject to these Conditions.
22.2. If we agree to undertake the variation we will provide you with written confirmation in the form of an updated Jobcard and will be entitled to charge the variation on a time and cost basis at the hourly rate as stated on the Jobcard.
22.3. If the timeframe for performance of the Agreed Services will be altered due to a change in your instructions to us, or due to any reasons beyond our control, we will advise you of the anticipated change in accordance with clause 21.1.
23.1. The parties will attempt to resolve any claim or dispute arising under or in connection with these Conditions in good faith negotiations between themselves within 14 days of the dispute arising.
23.2. If the dispute is not resolved by mediation, the parties must submit the dispute to the Disputes Tribunal for determination, if the quantum of the dispute is within the Tribunal’s jurisdiction.
23.3. Failing resolution of the dispute between the parties in accordance with clauses 23.1 and 23.2, it will be determined by arbitration in accordance with the Arbitration Act 1996. However, nothing in this clause prevents either party from taking immediate steps to seek relief before the New Zealand Courts.
24.1. These Conditions are governed by and construed in accordance with the current laws of New Zealand and the parties agree, subject to clause 23, to submit to the non-exclusive jurisdiction of the Courts of New Zealand for any disputes or proceedings rising out of or in connection with these Conditions.
25.1. The provisions of this clause 25 and of clauses 4 (Ownership and risk), 10 (Default), 12 (PPSA), 15 (Limitation of liability), 17 (Confidentiality), 18 (Intellectual property), 19 (Termination), 23 (Disputes) and 24 (Jurisdiction) of these Conditions and any other provision which by its nature is intended to survive the termination or expiration of these Conditions will survive the termination or expiration of these Conditions or completion of the Agreed Services.
26.1. In these Conditions unless the context otherwise requires:
a) the rule of construction known as the contra proferentem rule does not apply to these Conditions.
b) words importing singular include plural and vice versa.
c) headings are for convenience only and do not form part of, or affect the interpretation of, these Conditions.
d) references to a party include that parties successors, personal representatives, executors, administrators and permitted assigns.
e) references to a statute include references to:
(i) regulations, orders, rules or notices made pursuant to that statute;
(ii) all amendments to that statute and those regulations, orders, rules, or notices, whether by subsequent statute or otherwise; and
(iii) any statute passed in substitution of that statue.
f) references to “us” include our employees, contractors and agents.
26.2. In these Conditions unless the context requires otherwise:
a) “Agreed Services” means the services we perform for you based on your instructions to us received via email, telephone, or in person and as recorded on the Jobcard including (but not limited to) vehicle servicing, warrant of fitness inspection and collision repair services and includes the procurement or supply of any Goods by us as part of or related to such services.
b) “Goods” has the same meaning as that set out in the Personal Properties Securities Act 1999 (and includes vehicle parts and accessories).
c) “GWD Group” means GWD Holdings Limited and its wholly or partly owned subsidiaries including GWD Russells Limited (trading as GWD Motor Group), Tyreland Limited, Southern MG Limited and Remarkable Motors Limited