JS Automotive 2018 Limited trading as Kelly's Automotive ("Kellys") - Terms and Conditions of Trade

These Terms of Trade and any quotation provided by Kelly’s are to be read together and form the entire agreement between you and Kelly’s the related parties(“RP”) relating to all Work and Services provided by Kelly’s. It replaces and supersedes any previous proposals, correspondence, understandings, or other communications (written or oral) made between the RP.

1.0 Definitions

In these Terms of Trade:

1.1 “I”, “We”, “Our”, “Us” means Kelly’s.

1.2 “Charge Up” means any cost incurred by Kelly’s for Goods supplied and services performed that do not form part of any written quotation.

1.3 “Customer” and “You” in these terms means the user or receiver of the Goods and Services and where the order has been placed with Kelly’s by a broker, agent or a third party, includes that broker, agent or third party, personally or otherwise and if there is more than one, Customer and You is a reference to each Customer jointly and severally.

1.4 “Due Date” means the date for payment on any invoice.

1.5 “Estimate” means the anticipated cost to complete the Work and is subject to change and is not legally binding upon Kelly’s.

1.6 “Goods” means but not limited to, motor vehicle parts, accessories and other goods supplied by Kelly’s.

1.7 “Intellectual Property” includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, ideas, procedures, and calculations).

1.8 “Price” means the amount stipulated in any invoice issued by Kelly’s.

1.9 “Service” means carrying out any type of mechanical or other such related services for you.

1.10 “Words” importing the singular include the plural and vice versa.

1.11 “Work” means supplying Goods or Services or both.

1.12 “Workshop” means any premises where Kelly’s carries on business.

1.13 “PPSA” means the Personal Property Securities Act 1999.

1.14 “Shipping” means transport by airfreight, sea freight or by courier.

1.15 “Invoice Date” means the date by which payment is to be made.

2.0 Ownership

2.1 Ownership in Goods, whether in their original form or incorporated in, intermingled with or attached to another product will not pass to you but will remain with us until we receive payment in full of the purchase price of the Goods and all other amounts that you owe.

3.0 Estimates

3.1 Unless stated otherwise, any price we give you before providing a written quotation or commencing any Work is an estimate inclusive of GST of the anticipated cost for us to complete the Work and is not legally binding upon us.  We undertake to notify you in writing as soon as reasonably practicable if the Price is likely to exceed the estimated cost subject to clause 5 below.

4.0 Quotation

4.1 All quotations are valid for 30 calendar days from the date of the quotation and are provided in writing.  All Work quoted for being in excess of $1,000.00 (including GST) is subject to the Customer first paying to Kelly’s when requested, a deposit of 50% of the Work price (including GST) or any other amount requested, and/or in the case of a company a personal guarantee provided from any shareholder or director of that company or any other approved individual in a form required by Kelly’s before any Work will be commenced.

4.2 The customer is required to accept the quotation in writing before any Work will be commenced subject to clause 13 below.

4.3 If any extra Work is required or requested after the quote is accepted and which is not described on the quotation, Kelly’s will communicate with the Customer in writing to advise that the extra Work will be invoiced in writing within on a Charge Up basis and will be treated as a variation to the contract which the Customer accepts and agrees to pay all amounts in excess of the quoted price, unless the Customer otherwise notifies Kelly’s in writing within 5 working days.

4.4 The Customer agrees to pay in addition to a deposit in 4.1, the full cost of any part necessary to be imported from overseas, the purchase price of any part that is non-refundable, and the costs of and incidental to shipping.  Work will only commence once payment is received and cleared through our banking system.

5.0 Price

5.1 At our sole discretion the Price will be, and the Customer agrees to pay;

(a) the amount set out in any invoice including GST provided by Kelly’s to the Customer; or

(b) Our quoted Price (subject to clause 4.1) which shall be binding upon Kelly’s provided that the Customer shall accept our quotation in writing within thirty (30) calendar days.

5.2 Kelly’s reserves the right to change the quoted price at any time and the Customer agrees to pay the extra cost:

(a) if a variation to the Goods which are to be supplied is required or requested after the date of the quotation and which will be invoiced on a Charge Up basis; or

(b) if a variation to the Service originally scheduled is required or requested after the date of the quotation and which will be invoiced on a Charge Up basis; or

(c) if during the course of the Work, the Goods are not or cease to be available from any supplier or if Client supplied Goods are not compliant in any way, then we reserve the right to provide alternate Goods; or

(d) of any increase to Kelly’s in the cost of labour or Goods (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond our control.

5.3 The cost of all disbursements incurred on your behalf and any reasonable administrative costs of Kelly’s in incurring any disbursements.

5.4 The cost of daily storage calculated from the day after Work is completed until the day the vehicle leaves our premises.

5.5 If you cancel our services subject to clause 15, you agree:

(a) to pay for all costs incurred by Kelly’s up to the date of cancellation.

(b) to pay all costs incurred by Kelly’s to return any Goods to the original supplier that were ordered prior to the date of cancellation.

(c) to pay the costs associated with preparing and grooming the vehicle to be returned to you.

(d) that Kelly’s reserves the right to recover the cost of any Goods that are non-refundable by the supplier and are unpaid by the Customer.

6.0 Terms of Payment

6.1 We may require you to pay a deposit, being an advanced payment before we commence Work subject to clause 4.1.

6.2 The Customer shall pay in full and without deduction or setoff for the Goods or Services on the 20th of the month following the date of the invoice (“Invoice Date”) where the Customer acquires the Goods or Services for the purposes of business. The payment is made only when funds have fully cleared through the banking system into our bank account.

6.3 The Customer shall pay in full and without deduction or setoff for the Goods or Services on the date set out in the invoice (“Invoice Date”) where the Customer does not acquire the Goods or Services for the purposes of business, unless otherwise agreed in writing.  The payment is made only when funds have fully cleared through the banking system into our bank account.

6.4 The Customer agrees to pay the undisputed amount in any invoice where the Customer has notified Kelly’s that any charge is in dispute.

6.5 If payment is not received by the Due Date, you are in default and agree to pay default interest at the rate of 2.0% per annum above the interest rate as prescribed by s12(3) of the Interest on Money Claims Act per annum on the balance outstanding from the date payment was due until payment is received.  The right to charge interest is in addition and without prejudice to our other rights in respect of non or late payment.

6.6 If payment on any invoice is overdue by 7 days or more from the Due Date, we may suspend performing any Works until the amount overdue is paid in full.

6.7 If any Work is suspended all amounts owing including accrued interest up to the date of suspension must be paid in full before any further Works will be carried out.

6.8 We will notify you in writing within 5 working days of suspending any Works.

6.9 We may refuse to continue any unfinished Works notwithstanding that all amounts owing up to the date of suspension has been paid.

6.10 Payments received shall first be applied in reduction of interest and costs and then in reduction of outstanding accounts as we determine (at our sole discretion) as specified to the customer.  Until we specify the application, monies received are held unallocated and no amount due shall be deemed reduced until monies have been expressly applied by us.

6.11 Any amount that is paid which is less than the amount on any invoice issued is not accepted in full and final settlement, but rather held on account in part payment only of the invoiced amount, unless we agree in writing to accept the amount in full and final settlement.

7.0 Personal Property Securities Act 1999 (“PPSA”)

7.1 By assenting to these terms and conditions in writing you acknowledge and agree that these terms and conditions constitute a security agreement for the purposes of the PPSA; and

7.2 You grant us a security interest in the Goods that we supply to you.  Our security interest covers the Goods together with proceeds of all kinds, to the value of all Goods and Services that we have supplied to you whether or not those Goods have become accessions to other Goods or processed or intermingled into or mixed with other Goods.  The Goods and Services subject to the security interest will be described on our invoices.  Where Goods that we supply to you have become mixed with other similar Goods supplied by other persons, you grant us a security interest in the mixed Goods to the value of the goods in the mixture that we have supplied to you, but which have not yet been paid for.

7.3 You agree to do all acts necessary and provide us on request all information we require to register a financing statement over the goods and their proceeds of all kinds.  You waive all rights to receive a copy of any verification statement or a financing statement.

7.4 You must advise us immediately in writing of any changes to information you have provided to us, and at least 12 business days before changing your name, your company name, or your trading name.

7.5 You agree that you will supply us, within 2 business days of our written request, with copies of all security interests registered over your personal property, and you authorise us as your agent to request information from any secured party relating to any security interest which is held in any personal property which is or has been in your possession or control.

7.6 You must reimburse us our reasonable costs, including legal costs on a solicitor client basis, associated with the discharge or amendment of any financing statement registered by us, whether or not the change was initiated by you.

7.7 If we repossess Goods under this agreement, we may maintain those goods or dispose of them without notice to you or any other person, and, after deducting reasonable costs of sale we will credit any surplus against any sums owing to us.  We shall not be obliged to pay any person other than you or your receiver or liquidator any sum in excess of the total amount you owe us at the time we credit your account.  We will not be obligated to reinstate or resupply any repossessed Goods to you.

7.8 In the event of repossession, Kelly’s or their agent may enter premises where Goods are stored in order to effect repossession. Kelly’s or their agent shall not be liable for any costs or losses arising from the repossession.

7.9 You agree to receive none of the rights referred to in the following sections of the PPSA: 116,119,120(2), 125-129, 131 and further waive your rights to object under sections 121.

7.10 You authorise us or our agent to search the Personal Property Securities Register at any time for information about you or (if you are a company) your parent and associated companies.

8.0 Limitation of Liability

8.1 We will in good faith consider any bona fide complaints regarding Goods or Services which are raised by the Customer in writing within 14 days from the time of the supply of the Goods or Services.

8.2 Where the Customer acquires the Goods or Services for the purposes of business, it agrees and acknowledges that it is not a “consumer” as defined by the Consumer Guarantees Act 1993 (“the Consumer Act”) and that the Goods or Services supplied to it are for the purpose of business; and the Customer further agrees that the conditions, warranties and guarantees set out in the Contract and Commercial Law Act 2017 or implied by common law will not apply and are excluded from these Terms of Trade including the right to consequential losses are expressly excluded pursuant to section 43(2) of the Consumer Act.

8.3 Our liability shall in no circumstances exceed the price of the Goods supplied.  We shall have no further liability or responsibility for any losses of profits, revenue, business opportunity, anticipated savings, wasted overheads and damage to goodwill, direct, indirect, or consequential injury, loss or any damage whatsoever and howsoever arising.

8.4 We may subject to clause 8.3 refund an amount not exceeding the price of the Goods provided that after receiving written notice as required in 8.1:

(a) the defective or non-complying Goods are returned to us within 14 days from the date of supply: and

(b) the defective or non-complying Goods are in the same form and condition as they were on the date of supply.

9.0 Default

9.1 We reservice the right to recover from the Customer or any other party all costs and/or expenses incurred in the repossession of the Goods or instructing a solicitor or debt collection agency to recover any amount overdue for payment (including any amount owing on any order issued by the Disputes Tribunal or on any Judgment unpaid) and such costs and expenses shall bear interest as provided for in 6.5 above until the date of payment.

9.2 We reserve the right to refer any amount overdue for payment to Specialist Collections & Consultants Limited for collection and you agree to pay at their discretion, either debt collection commission of 20% + GST calculated on the overdue amount or $280.00 + GST per hour for time and attendances to collect the overdue amount.

10.0 Intellectual Property

10.1 In respect of Intellectual Property used in or arising from the production of the Goods or the performance of the Services:

(a) all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of these Terms of Trade (whether you or us or a third party).

(b) any new Intellectual Property will be dealt with in accordance with clause 11.0.

10.2 If any Goods or Services are to be undertaken based on your designs, you warrant that the undertaking of the Goods or Services by us will not infringe any third party’s Intellectual Property rights and you indemnify us against any loss, liability, costs, and expenses in the event of any claim being made that the Goods or Services infringes any patent, copyright, or other rights of any other person.

11.0 Intellectual Property Ownership

11.1 Subject to clauses 10.1 and 10.2 we are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests (including copyright and all other statutory and common law rights and interests) in the Goods or Services, and any other Goods or Services performed by us for you, as first owner of those Intellectual Property rights and interest.

11.2 We shall retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills, and know-how.

11.3 You must not attribute the Goods or Services to anyone other than us or remove any of our trademarks, signatures, logos or similar from our Work.

11.4 Upon payment of all amounts owing to us in accordance with these Terms of Trade, we assign to you the copyright in the final form of any Goods or Services which we have specifically created for you for the countries and for the purposes as specified in the description of the Goods or Services, or if not specified, for the countries and for the purposes which would be reasonably expected in light of the nature of your request for the Goods or Services.

11.5 This clause 11.0 shall continue in force between the parties notwithstanding the termination of these Terms of Trade or the completion of the Goods or Services.

12.0 Privacy Act 2020

12.1 Kelly’s or their duly authorised agent may at any time collect, hold and use information relating to this Contract for any purpose directly connected with its business including (but not limited to) direct marketing, debt recovery, credit reporting or assessment, and to register any security interest, including collecting information from, and disclosing information to, related companies, external credit reporting agencies, debt collection agencies, trade referees and other third parties including all Government Departments.

12.2 The type of information Kelly’s collects may vary depending on the nature of our connection with you but is likely to include: names, addresses, contact details, dates of birth, occupations, evidence of source of funds, and any other information which assists us in achieving our business purposes as described in 12.1.

12.3 Information disclosed by Kelly’s or their agent to credit reporting agencies will be disclosed on the basis that it will be held and used by such agencies to provide credit reporting services.  Kelly’s or it’s agent may notify any credit reporting agencies where any amount owing under this agreement has been outstanding for 30 days or more.

12.4 If any information that we require is not provided, Kelly’s reserves it’s right to delay provision of its services or perform its obligations until such time as it is provided directly by the client.  Except where forbidden by law, we will collect personal information from the individual concerned either directly or indirectly, from third parties (such as using cookies on our website to analyse traffic or a reference given from another person), and from publicly available sources.

12.5 We take reasonable steps to ensure the security and confidentiality of personal information and the privacy of individuals.  This includes measures such as physical security of files, electronic security, and authorisation procedures. We will not retain information for a longer period than is necessary for our business purposes.  The Customer, any director signing on behalf of the Customer and any Guarantor authorises Kelly’s or their agent to collect, hold and use information from any person or entity for any of the above purposes, and for such person or entity to disclose information to Kelly’s or their agent and the Customer any director signing on behalf of the Customer and any Guarantor further authorises Kelly’s or their agent to disclose information to any person or entity for any of the above purposes and such person or entity to collect, hold and use information from Kelly’s.

12.6 We will endeavour, within reason, to ensure that any information we hold is accurate before we use or disclose such information.  Any such information can be accessed or corrected at the request of the individual whom the information is about.

12.7 It may be necessary for us to disclose personal information to companies or people we work with, agencies which may be able to verify your information, social media sites, courts, tribunals, and regulatory authorities.  We may disclose personal information to anyone else where disclosure is authorised by the individual, or where we are required to by law.

12.8 Any client who provides personal information will be advised of:

  1. The fact that information is being collected.
  2. The purpose for which the information is being collected.
  3. The intended recipients of the information.
  4. The name(s) and address(es) of –

(i) The agency that is collecting the information; and

(ii) The agency that will hold the information.

  1. If the collection of the information is authorised or required by, or under, law –

(i) The particular law by, or under, which the collection of the information is required or authorised; and

(ii) Whether the supply of that information is voluntary or mandatory.

  1. The consequences for the client if the requested information is not provided; and
  2. The rights of access to, and correction of information provided by the client.

13.0 Notices

13.1 All notices required or permitted under these Terms of Trade shall be in writing and shall be delivered personally or sent by registered post or by email.

13.2 Any such notice shall be deemed given when so delivered personally or if by registered post within New Zealand shall be deemed to be given or received on the second following business day after posting or if sent by email on the next following business day.

14.0 Variation

14.1 These terms shall not be modified or varied unless expressed in writing and agreed to by Kelly’s and the Customer.

15.0 Termination

15.1 You may request to cancel our services at any time by giving notice in writing subject to clause 13.

15.2 In the absence of such notice of termination these Terms of Trade will continue and apply to all future requests for the supply of Goods and the performance of any Service.

16.0 Force Majeure

16.1 We shall not be liable for any delay or failure to perform any obligation in whole or in part under these Terms of Trade or any loss damage (including indirect or consequential loss or damage) if such delay or failure is due to Force Majeure (as that term is commonly understood).  Nothing in this clause 16 shall excuse payment of any amount owing as it becomes due under the terms of trade.

17.0 Electronic Communications

17.1 We may communicate with you electronically from time to time, including sending you Commercial Electronic Messages (as defined in the Unsolicited Electronic Messages Act 2007) and by agreeing to this Contract you consent to such communications.

17.2 Electronically transmitted information cannot be guaranteed to be secure or virus or error free and consequently such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use.  We will not be liable to you in respect of any error, omission or loss of confidentiality arising from or in connection with the electronic communication of information to you.  If you do not accept these risks, you should notify us in writing that you do not want us to communicate electronically with you.

18.0 Customer Warranties

18.1 If you acquire any Goods or Services from us for re-supply, use or incorporation in, any Goods or Services ordinarily acquired for personal household or domestic use or consumption (“Consumer Products”) you warrant that:

(a) if you supply the Consumer Goods or Services directly to an end user/consumer you will do so using terms and conditions of supply which exclude liability for any claims under the Consumer Guarantees Act 1993; and

(b) if your customer acquires any Goods or Services for re-supply, your customer and each person in the distribution will exclude liability in its contract for supply for any claims under the Consumer Guarantees Act 1993, but in each case only where the end user/consumer acquires the Goods or Services for business purposes.

18.2 You agree to indemnify us, our suppliers and the manufacturers of any goods against any failure by you, your customers or any person in your distribution chain to properly contract out of liability to business end users/consumers under the Consumer Guarantees Act 1993.

19.0 Workmanship Warranty

19.1 All MTA members subscribe to a code of ethics and are bound to observe MTA’s policies and rules.  Kelly’s is a current financial member of the Motor Trade Association Inc. of New Zealand and observes all of MTA’s policies, rules, and ethics.

Please refer to the MTA Repairer Warranty for our obligations and exclusions.

20.0 Indemnity

20.1 Except where we have expressly accepted personal responsibility to you under these Terms subject to clause 8.3, you will keep us protected against any legal action taken against us and pay any costs, losses, or expenses we incur in connection with your use of our services or any failure by you to comply with these Terms.

21.0 Loan Vehicles

21.1 Where a Customer Loan Vehicle is supplied the Loan Vehicle may only be driven during the period of hire/loan and must be immediately returned upon demand by Kelly’s.

21.2 No persons other than the Customer may operate the Loan Vehicle unless otherwise agreed in writing between us.  The Customer and all permitted drivers must hold a valid New Zealand drivers’ licence and must meet our insurance requirements with respect to their ability and eligibility to drive the Loan Vehicle.

21.3 The customer agrees:

(a) the Loan Vehicle will be used only in the immediate Whangarei area.

(b) we reserve the right to charge you for the cost to refill the fuel used during the loan period.

(c) the Customer or any permitted driver will be liable for any loss or damage to the Loan Vehicle (including but not limited to any consequential loss and any insurance excess charged by any underwriter) occurring in, or as a result of, the time the vehicle is hired or on loan.  Should any insurance claim be rejected for whatever reason the Customer or permitted driver will be liable to us for the full cost of repairing or replacing the Loan Vehicle (whichever is the less).

(d) that at all times the Loan Vehicle will be operated with all reasonable care and skill and be garaged or parked off the road when the vehicle is not being used.

(e) the Loan Vehicle is not to be modified or changed in any way from the manufacturers model.

(f) that you will comply with all maintenance and cleaning instructions supplied by us from time to time.  We reserve the right to charge you for any actual costs incurred in restoring the Loan Vehicle to the same standard it was hired/loaned to you (including but not limited to the cost to clean the vehicle).

(g) that you and any permitted driver will be liable for any parking, traffic infringement, towage, storage and impound costs incurred during the period of hire.

22.0 Unpaid Sellers Lien

22.1 Where the Goods and Services are not acquired for the purposes of business, the Customer is a consumer as defined by the Consumer Guarantees Act 1993 (“the Consumer Act”); and

22.2 If any amount remains unpaid subject to clause 6.3, we will exercise a “possessory” Unpaid Sellers Lien over all unpaid goods until payment is received in full.

22.3 If any amount owing remains unpaid for 2 months or longer, we may sell the goods at auction subject to S342(1) ;(2) of the Contract and Commercial Law Act 2017 (“the Commercial Law Act”).

22.4 We will provide a Notice of Sale by leaving it at your usual or last known place of residence or business or at any address specified by you for that purpose.

22.5 We will apply the proceeds of sale of the Goods sold in the following order:

(a) in payment of the expenses of the advertising and sale.

(b) in payment of the amount due under the Lien.

(c) in payment of the surplus (if any).

22.6 The surplus (if any) will, as soon as practicable after the completion of the sale, be paid to the Registrar of the office of the District Court nearest to the place of sale (to be held by the Registrar for the benefit of the person entitled to it).

23.0 Customer Consent and Obligations

23.1 The Customer agrees that:

(a) the vehicle will be stored on our premises at “owners’ risk”.

(b) any employee of Kelly’s may drive the vehicle during normal business hours to perform a road test during and after Work has been carried out.

(c) all valuables and personal effects will be removed from the vehicle at the time of leaving the vehicle at our workshop.  We accept no responsibility for valuables and personal effects that are alleged to be missing during the period the vehicle is in our care.

24.0 Guarantee

24.1 The customer agrees and acknowledges that Kelly’s may as a term of their trade, at any point, require the customer to nominate one or more Guarantor(s) to secure the indebtedness of the customer and require those Guarantor/s of the Customer to enter into a Deed of Guarantee, as prepared by Kelly’s.

24.2 The Guarantor/s of the Customer jointly and severally unconditionally guarantee to Kelly’s the due and punctual payment by the Customer of all outstanding monies and agree to keep Kelly’s fully indemnified against all damages, losses, costs, and expenses arising from any failure of the Customer to pay the monies hereby guaranteed.

24.3 It is agreed between Kelly’s and the Customer that the Guarantee signed by the Guarantor/s can be relied upon between the parties.

24.4 The Guarantor/s have received a copy of the Terms of Trade.

25.0 General Terms

25.1 In the case of any conflict between these terms or any other document provided by Kelly’s, these terms shall prevail.

25.2 Where Kelly’s fails to enforce any term/s or fails in any way to exercise its rights under these terms, Kelly’s shall not be deemed to have waived those rights with respect to any breach or subsequent breach of any term/s.

25.3 If any of these terms are held to be invalid or unenforceable for whatever reason, the remaining terms shall remain in full force and effect between the parties.

25.4 The Customer by making an order or offer for the Goods or Services by any medium does so on the basis that the Customer has read, understood, and agrees to be bound by these terms.  Should the Customer have any queries regarding these terms, the Customer agrees to seek independent legal or other professional advice before making an order or offer.

25.5 These terms are governed by and shall be construed in accordance with the laws of New Zealand.  The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters and things arising out of these terms.

25.6 At any time Kelly’s may assign or subcontract any of their rights, title, interest, and obligations under these Terms of Trade. 

25.7 The Customer may not assign or subcontract any of their rights, title, interest, and obligations under these Terms of Trade without first obtaining the written approval of Kelly’s.

26.0 Counterpart Execution and Electronic Signing

26.1 These terms of trade may be executed in any number of counterparts, all of which together shall constitute one and the same instrument, and either Kelly’s or the client to these terms of trade may execute their agreement by electronically signing any such counterpart.

26.2 By executing these terms of trade in any number of counterparts, Kelly’s and the client acknowledge an electronic signature is reliable for the purposes of determining their approval of and agreement to these terms of trade.

26.3 By executing these terms of trade in any number of counterparts, Kelly’s, and the client consent to receiving each other’s agreement to these terms of trade by electronic signature.