Terms and Conditions
Definitions
1.1 “TSL” “we” “our” shall mean Transmission Solutions NZ Limited, its successors and assigns or any person acting on behalf of and with the authority of Transmission Solutions NZ Limited.
1.2 “Customer” “you” “your” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by TSL to the Customer.
1.3 “Works” shall mean all Works supplied by TSL to the Customer (and where the context so permits shall include any supply of Parts as hereinafter defined) all such Works shall be as described on the invoices, quotation, work authorisation or any other forms provided by TSL to the Customer and shall include any advice or recommendations.
1.4 “Parts” shall mean Parts supplied by TSL to the Customer either separately, or as part of the Works (and where the context so permits shall include the supply of Works as defined above).
1.5 “Loan Car” means any Loan Car including any accessories supplied on hire by TSL to the Customer (and where the context so permits shall include any supply of Works). The Loan Car shall be described on the invoices, quotation, authority to hire, or any work authorisation documents, in both paper & electronic form, supplied by TSL to the Customer.
1.6 “Price” shall mean the price payable for the Works as agreed between TSL and the Customer in accordance with clause 4 of this contract.
Acceptance
2.1 All Works and Parts are supplied on the basis of these terms and conditions and any order received by TSL from the Customer and/or use of the Customer’s credit account with TSL (if any) shall constitute acceptance of these terms.
2.2 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Works and Parts.
2.3 These terms and conditions may only be amended with TSL’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and TSL.
Change in Control
3.1 The Customer shall give TSL not less than seven (7) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by TSL as a result of the Customer’s failure to comply with this clause.
Price And Payment
4.1 At TSL’s sole discretion the Price shall be either: (a) as indicated on invoices provided by TSL to the Customer in respect of the Works supplied; or (b) TSL’s quoted Price (subject to clause 4.2) which shall be binding upon TSL provided that the Customer shall accept TSL’s quotation in writing within seven (7) days of issue.
4.2 TSL reserves the right to change the Price in the event of a variation to TSL’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, additional works required due to hidden or unidentifiable difficulties beyond the control of TSL such as overseas transactions may increase as a consequence of variations in foreign currency rates of exchange or as a result of increases to the Seller in the cost of materials and labour) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At TSL’s sole discretion a deposit may be required.
4.4 Where TSL is requested to store the Customer’s Parts or vehicle, or where Parts or vehicles are not collected within forty-eight (48) hours of advice to the Customer that they are ready for collection, then TSL (at its sole discretion) may charge a storage fee of $5 per day.
4.5 Time for payment for the Works shall be of the essence and will be stated on the invoice or any other forms. For the avoidance of doubt, payment is due immediately at the completion of the job unless otherwise agreed to in writing prior to the job commencing. Vehicles & Parts will not be released until full payment has been received. For electronic or online payments, this means that the funds must be available in the nominated bank account.
4.6 Payment can be made by cash, EFTPOS, electronic/on-line banking, credit card, Payway, Afterpay or by any other method as agreed to between the Customer and TSL.
4.6.1 Payments made by credit card, Payway, or Afterpay will incur an additional surcharge of two point nine percent (2.9%) of the total Price.
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4.7 The Customer acknowledges that:
4.7.1 TSL may allocate payments as we see fit notwithstanding any specific tender by you.
4.7.2 Payment shall be free of any counterclaim, condition, set-off, deduction or any other claim whatsoever.
4.7.3 Interest may be charged on overdue amounts at the rate of six percent (6%) per month; and you shall be liable for all costs incurred by us in recovering the amount owing including debt collection agency fees and full indemnity legal costs.
4.8 TSL may at any time and without reason or notice to you:
4.8.1 Terminate or suspend any credit arrangement we have with you in which case any amount owing shall be immediately due and payable.
4.8.2 In sole discretion of TSL increase, decrease, suspend or revoke the amount of credit supplied to you; and
request additional security for payment for the goods
4.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to TSL an amount equal to any GST TSL must pay for any supply by TSL under this or any other agreement for the sale of the Parts. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery Of Works & Parts
5.1 Delivery shall be deemed complete when we notify you the Parts or your vehicle is available for collection, give possession of the Parts or your vehicle to you or to a carrier for delivery to you, or otherwise give possession as you have directed.
5.1.1 We reserve the right to deliver the Parts by instalments and each instalment shall be deemed to be a separate contract subject to the same conditions as the main contract. Failure by us to deliver one or more instalment, shall not entitle you to cancel the main contract.
5.2 Unless otherwise specified in the schedule the place of delivery shall be our premises or such other premises we determine.
5.3 The failure of TSL to deliver shall not entitle either party to treat this contract as repudiated.
5.4 TSL shall not be liable for any loss or damage whatsoever due to failure by TSL to deliver the Parts or Works promptly or at all where due to circumstances beyond the control of TSL.
Risk
6.1 Risk shall pass to you when the Parts or your vehicle are delivered. If you request and we agree to a delay in delivery, risk shall pass upon the date of your request for such delay.
6.2 Title shall pass upon full payment for the goods and we retain title until we receive payment in full; and we give no warranty or guarantee as to the timing of delivery of the goods and expressly record that delivery time is not a condition of these terms.
6.3 If any of the Parts are damaged or destroyed following delivery but prior to ownership passing to the Customer, TSL is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by TSL is sufficient evidence of TSL’s rights to receive the insurance proceeds without the need for any person dealing with TSL to make further enquiries.
6.4 The Customer assumes all risk and liability for loss, damage or inquiry to persons or to property of the Customer, or third party arising out of the use or possession of any of the Parts sold by TSL, whether such Parts are used singularly, or in combination of other Parts, substances, or process.
6.5 The Customer acknowledges and accepts that the supply of Parts for accepted orders may be subject to availability and if, for any reason, Parts are not or cease to be available, TSL reserves the right to vary the Price with alternative Parts as per clause 4.2. TSL also reserves the right to halt the Works until such time as TSL and the Customer agree to such changes.
6.6 The Customer acknowledges that it is the Customer’s responsibility to remove all personal/valuable items from the vehicle prior to Horsley carrying out their Services. TSL shall not be liable in the event of any apparent loss or damage to personal/valuable items left in the vehicle.
6.7 The Customer accepts that in the event that the vehicle is stored for any period on TSL’s premises that it is done so at the Customers own risk and it shall be the Customers responsibility to ensure their vehicle and its contents are insured adequately or at all.
6.8 The Customer acknowledges that TSL can only provide its Services or Works on a vehicle in its current state as supplied to TSL therefore TSL shall not accept any responsibility for any workmanship of any third party that has worked on a Customers vehicle prior to Services or Works being undertaken by TSL (including but not limited to, poor paintwork or repairs).
Customer’s Responsibility
7.1 It is the Customer’s responsibility to ensure that the Customer’s motor 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 on the Customers premises. The motor vehicle is at all times stored, repaired, collected and delivered at the Customers sole risk.
7.2 The Customer agrees that any work carried out on the motor vehicle and/or storage of the motor vehicle at TSLs premises is done so at the Customer's own risk and releases to the full extent permitted by law, TSL, its franchisees with whom the Customer contracts, and each of their servants, agents, employees, contractors and invitees from all claims and demands of any kind and from all liability which may arise in respect of any accident, damage or injury occurring to any person or property arising out of the storage and/or repair of the motor vehicle.
7.3 TSL shall not be liable for the loss or damage to any motor vehicle left with TSL, its accessories or personal/valuable items while it is being stored, transported or operated in connection with the work authorised unless caused by the negligence of TSL or TSL’s employees.
7.4 The Customer agrees to indemnify TSL fully for any losses or costs we incur as a result of us collecting or delivering your vehicle to you.
Title
8.1 The Customer agrees that the ownership of any Parts shall not pass until: (a) the Customer has paid TSL all amounts owing for the particular Parts or Works; and (b) the Customer has met all other obligations due by the Customer to TSL in respect of all contracts between TSL and the Customer.
8.2 Receipt by TSL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then TSL’s ownership or rights in respect of the Parts or Works shall continue.
8.3 It is further agreed that: (a) where practicable the Parts shall be kept separate and identifiable until TSL shall have received payment and all other obligations of the Customer are met; and (b) until such time as ownership of the Parts shall pass from TSL to the Customer TSL may give notice in writing to the Customer to return the Parts or any of them to TSL. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Parts shall cease; and (c) the Customer is only a Bailee of the Parts and until such time as TSL has received payment in full for the Parts then the Customer shall hold any proceeds from the sale or disposal of the Parts, up to and including the amount the Customer owes to TSL for the Parts, on trust for TSL; and (d) until such time that ownership in the Parts passes to the Customer, if the Parts are converted into other products, the parties agree that TSL will be the owner of the end products; and (e) if the Customer fails to return the Parts to TSL then TSL or TSL’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Parts are situated and take possession of the Parts, and TSL will not be liable for any reasonable loss or damage suffered as a result of any action by TSL under this clause.
Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that: (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and (b) a security interest is taken in all Parts or Works previously supplied by TSL to the Customer (if any) and all Parts or Works that will be supplied in the future by TSL to the Customer.
9.2 The Customer undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TSL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, TSL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Parts charged thereby; (c) not register a financing change statement or a change demand without the prior written consent of TSL; and (d) immediately advise TSL of any material change in its business practices of selling the Parts or Works which would result in a change in the nature of proceeds derived from such sales.
9.3 TSL and the Customer agree that nothing in sections 114(1)(a), 117(1), 122, 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Customer waives its rights as a debtor under sections 107(2)(a) to (i), 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by TSL, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by TSL under clauses 9.1 to 9.5.
Customer’s Disclaimer
10.1 The Customer hereby disclaims any right to rescind, or cancel any contract with TSL or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by TSL and the Customer acknowledges that the Works are bought relying solely upon the Customer’s skill and judgement.
Defects
11.1 The Customer shall inspect the Works/Parts on delivery and shall within two (2) days of delivery (time being of the essence) notify TSL of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford TSL an opportunity to inspect the Works/Parts within a reasonable time following delivery if the Customer believes the Works/Parts are defective in any way. If the Customer shall fail to comply with these provisions the Works/Parts shall be presumed to be free from any defect or damage. For defective Works/Parts, which TSL has agreed in writing that the Customer is entitled to reject, TSL’s liability is limited to either (at TSL’s discretion) replacing the Works/Parts or repairing the Works/Parts.
11.2 Parts will not be accepted for return other than in accordance with 11.1 above.
Returns Of Parts
12.1 Returns of Parts will only be accepted provided that: (a) the Customer has complied with the provisions of clause 11.1; and (b) TSL has agreed in writing to accept the return of the Parts; and (c) the Parts are returned at the Customer’s cost within two (2) days of the delivery date; and (d) TSL will not be liable for Parts which have not been stored or used in a proper manner; and (e) the Parts 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.
12.2 TSL may (at their sole discretion) accept the return of Parts for credit but this may incur a handling fee of up to fifteen percent (15%) of the value of the returned Parts plus any freight costs.
Warranty
13.1 Subject to the conditions of warranty set out in clause 13.2 TSL warrants that if any defect in any workmanship of TSL or Parts supplied becomes apparent and is reported to TSL within the warranty period and mileage range as specified on the invoice, then TSL will either (at TSL’s sole discretion) replace or remedy the workmanship.
13.2 The conditions applicable to the warranty given by clause 13.1 are: (a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: (i) failure on the part of the Customer to properly maintain any Works; or (ii) failure on the part of the Customer to follow any instructions or guidelines provided by TSL; or (iii) any use of any Works otherwise than for any application specified on a quote or order form; or (iv) the continued use of any Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or (v) fair wear and tear, any accident or act of God. (b) The warranty shall cease and TSL shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without TSL’s consent. (c) In respect of all claims TSL shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
13.3 For Parts not manufactured by TSL, the warranty shall be the current warranty provided by the manufacturer of the Parts. TSL shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the parts.
13.4 The warranty excludes all liability for loss and damage, including without limitation all indirect and consequential loss. In all cases, the liability of the warranty is limited to the value of the invoice; and the workmanship & parts supplied in the invoice.
13.5 The warranty on parts does not include coverage for associated labour costs, including but not limited to removal, installation, and handling.
Consumer Guarantees Act 1993
14.1 If the Customer is acquiring Parts / Works for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Parts / Works by TSL to the Customer.
Default & Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of six percent (6%) per calendar month (and at TSL’s sole discretion such interest shall compound daily at such a rate) after as well as before any judgement.
15.2 If the Customer owes TSL any money the Customer shall indemnify TSL from and against all costs and disbursements incurred by TSL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TSL’s collection agency costs, and bank dishonour fees).
15.3 Without prejudice to any other remedies TSL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions TSL may suspend or terminate the supply of Parts to the Customer. TSL will not be liable to the Customer for any loss or damage the Customer suffers because TSL has exercised its rights under this clause.
15.4 Without prejudice to TSL’s other remedies at law TSL shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to TSL shall, whether or not due for payment, become immediately payable if: (a) any money payable to TSL becomes overdue, or in TSL’s opinion the Customer will be unable to make a payment when it falls due; (b) 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 (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Security And Charge
16.1 Despite anything to the contrary contained herein or any other rights which TSL may have howsoever: (a) where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to TSL or TSL’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer agrees that TSL (or TSL’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) Should TSL elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer shall indemnify TSL from and against all TSL’s costs and disbursements including legal costs on a solicitor and own Customer basis. (c) The Customer agrees to irrevocably nominate constitute and appoint TSL or TSL’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 16.1.
Loan Cars
17.1 Loan Cars shall at all times remain the property of TSL and are returnable on demand by TSL.
17.2 The Loan Car may only be driven during the period of loan by the Customer or any other person that TSL agrees may drive the Loan Car and then only if they hold a current driver’s licence appropriate for the Loan Car at the time when they are driving it.
17.3 The Customer shall; (a) ensure that all reasonable care is taken in handling and parking the Loan Car and that it is left securely locked when not in use; and (b) keep the Loan Car in the Customer's own possession and control and not allow the use of the Loan Car by any third party; and (c) not alter or make any alterations to the Loan Car (including but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Loan Car or in any other manner interfere with the Loan Car; and (d) keep the Loan Car, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by TSL to the Customer. In the event that the Loan Car is not returned in clean condition then TSL reserves the right to charge the Customer for all costs TSL incurs in cleaning the Loan Car.
17.4 The Customer acknowledges and agrees that they shall not permit any form of charge to be applied in relation to the Loan Car and further agrees that they shall not be entitled to any form of lien over the Loan Car.
17.5 The Customer shall be liable for any parking or traffic infringements, or related impoundment, towage and storage, and will supply all relevant details as required by the Police (and/or TSL) relating to such parking or traffic infringements or any other offences.
17.6 The Customer, by signing this agreement, accepts that they shall be liable to TSL for any loss of, or damage to, the Loan Car and consequential loss to the full extent of any insurance excess (where applicable). In the event insurance is rendered invalid by any action of the Customer then the Customer shall be liable to TSL for the full cost of repairing or replacing the Loan Car (whichever is the lesser).
17.7 Any excess applies (plus GST) shall be for each and every claim. Window glass damage or breakage also carries a separate excess.
Cancellation
18.1 TSL may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Customer. On giving such notice TSL shall repay to the Customer any sums paid in respect of the Price. TSL shall not be liable for any loss or damage of any kind resulting from such cancellation.
18.2 In the event that the Customer cancels the delivery of Works / Parts the Customer shall be liable for any loss incurred by TSL (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1993
19.1 The Customer authorises TSL or TSL’s agent to: (a) access, collect, retain and use any information about the Customer; (i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or (ii) for the purpose of marketing products and services to the Customer. (b) Disclose information about the Customer, whether collected by TSL from the Customer directly or obtained by TSL 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 the Customer.
19.2 Where the Customer is an individual the authorities under clause 19.1 are authorities or consents for the purposes of the Privacy Act 1993.
19.3 The Customer shall have the right to request TSL for a copy of the information about the Customer retained by TSL and the right to request TSL to correct any incorrect information about the Customer held by TSL.
Lien
20.1 Where the Customer has left the vehicle or item with TSL for repair, modification, exchange or for TSL to perform any other Service in relation to the item and TSL has not received or been tendered the whole of the Price, or the payment has been dishonoured, TSL shall have: (a) A lien on the vehicle or item; (b) The right to retain the vehicle or item for the Price while TSL is in possession of the item; (c) A right to sell the vehicle or item.
20.2 The lien of TSL shall continue to dispute the commencement of proceedings, or judgement for the Price having been obtained.
General
21.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Henderson, New Zealand.
21.3 TSL shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by TSL of these terms and conditions.
21.4 In the event of any breach of this contract by TSL the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Parts / Works.
21.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by TSL nor to withhold payment of any invoice because part of that invoice is in dispute.
21.6 TSL may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.7 TSL reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which TSL notifies the Customer of such change.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
21.9 The failure by TSL to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TSL’s right to subsequently enforce that provision.
21.10 TSL reserves the right to add fuel, in the amount ranging from $20 to $50, to the Customer’s vehicle for the purpose of diagnostic; road test; and performing a transmission adaptation / relearn procedure.
21.11 The Customer acknowledges and agrees that TSL may need to disconnect the vehicle’s battery to carry out the Works. The Customer further acknowledges that such disconnection may result in unforeseen malfunctions related to the vehicle’s software, electrical systems, and/or audio (entertainment) components, for which TSL shall not be held liable.