Terms of Trade
Terms of Trade
FLEETWASH NZ LIMITED - TERMS OF TRADE
1. DEFINITIONS
1.1. “Contract” means the contract formed as a result of Fleetwash NZ
undertaking the Services on these terms for the Customer.
1.2. “Contract Documentation” means all documentation between you and us
forming the contractual arrangement for the Services, including the Quote.
1.3. “Contract Price” means the price for the Services calculated in accordance
with the Contract Documentation, subject to any adjustments under these terms.
1.4. “Customer” means the party named as such in the Quote (also referred to as ‘you’, ‘your’) or who otherwise engages us to carry out Services.
1.5. “Direct Debit Authority” means the form of direct debit authority provided by Fleetwash NZ ’s bank from time to time as required to set up payments by direct debit.
1.6. “Goods” means any goods, materials, parts or other stock supplied by
Fleetwash NZ in the course of providing the Services to be carried out.
1.7. “Including” does not imply limitation.
1.8. “normal business hours” means 8.00am to 5.00pm Monday to Friday
excluding public holidays or amended to such hours as agreed between the
parties.
1.9. “Fleetwash NZ ” means Fleetwash NZ Limited, a duly incorporated company having its registered office at Auckland, New Zealand, its successors and assigns or any person acting on behalf of and with the authority of Fleetwash NZ Limited (also referred to as ‘us’, ‘we’ and ‘our’).
1.10. “Premises” means the address at which the Services are to be carried out,as stated in the Contract Documentation.
1.11. “Quote” means the quote, quotation, letter, email or other documentation (ifany) given by Fleetwash NZ to the Customer describing the Services to be
provided.
1.12. “Services” means services to be provided by Fleetwash NZ including any
Goods to be supplied by Fleetwash NZ as set out in the Contract Documentation.
1.13. “Variation” means a variation to the Services under clause 17.
1.14. “Vehicle” means any vehicle or vehicles brought to the Premises for the
provision of our Services.
1.15. “Working Day” has the meaning given in the Construction Contracts Act
2002.
2. ACCEPTANCE
2.1. These are the terms between us, Fleetwash NZ, and you, the Customer. If
you accept a Quote from us, or otherwise engage us to carry out Goods and
Services, you accept that these terms apply to those Services and to all other
goods and services we provide you from time to time (unless we otherwise agree in writing).
3. QUOTES
3.1. Quotes given are valid for 30 days, provided that Quotes are based on costs
and charges applying at the date of Quote. Without limiting the rest of this clause 3 or clause 17, any changes in cost arising from sources beyond Fleetwash NZ’s control are to the Customer’s account and may be claimed as a Variation. Fleetwash NZ shall endeavour where possible to provide an updated Quote prior to carrying out any Variation.
3.2. Unless stated otherwise, all amounts stated in Quotes are exclusive of GST and any credit card or other merchant fees.
3.3. The fact that a Quote has been given, and the contents of that Quote, are
commercially sensitive and confidential to Fleetwash NZ, and may not be
disclosed to any person without Fleetwash NZ ’s prior written consent.
3.4. The Customer acknowledges that some instances, the Quote will include a
portion of the costs for the Services that is expressed as an estimate or Fleetwash NZ will be unable to provide a firm quote. Where Fleetwash NZ gives an estimate of the cost of the Goods and Services, that estimate is Fleetwash NZ’s genuine best estimate of the Contract Price taking into account the information provided by the Customer, Fleetwash NZ ’s assessment of the Services and the current prices charged for Goods. For the avoidance of doubt, Quotes that contain an estimate may still be subject to Variation.
4. AUTHORISED REPRESENTATIVE
4.1. Unless otherwise limited as per clause 4.2 the Customer agrees that if the
Customer introduces any third party to Fleetwash NZ as the Customer’s duly
authorized representative, that person shall have the full authority of the
Customer to order any materials or Services or to proceed with Services on the
Customer’s behalf and/or to request a Variation to the Services on the
Customer’s behalf (such authority to continue until all requested services have
been completed or the Customer otherwise notifies Fleetwash NZ in writing that said person is no longer the Customer’s duly authorized representative).
4.2. In the event that the Customer’s duly authorized representative as per
clause 4.1 is to have only limited authority to act on the Customer’s behalf then
the Customer must specifically and clearly advise Fleetwash NZ in writing of the parameters of the limited authority granted to their representative.
4.3. The Customer specifically acknowledges and accepts that they will be solely liable to Fleetwash NZ for all additional costs incurred by Fleetwash NZ in providing any Services by the Customer’s duly authorized representative (subject always to the limitations imposed under clause 4.2 (if any)).
5. OUR RESPONSIBILITIES
5.1. We will carry out the Goods and Services with reasonable skill and care, in
accordance with the plans and specifications (if any), and, shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
5.2. Fleetwash NZ will remedy any defect in the Goods and Services which you notify to us in writing within 30 days of completion of the Services. Your notice must be sufficiently detailed to clearly identify what Goods and Service is claimed defective. We are not liable for any defect within reasonable tolerances, failure to achieve standards of finish or detail beyond what is required by the contract (subject to consents and Variations) and for any defect caused by or arising out of the actions of any person outside our control, for any faults in the performance or durability of materials supplied by you, fair wear and tear, or failure to maintain the Services.
5.3. Any warranties given are only for normal domestic and commercial use and do not apply to any defects or damage not due to defective materials or
workmanship, including those resulting from accidental damage, failure due to
misuse or abuse (including failure to properly service the Goods in accordance
with the manufacturer’s instructions), alteration or repair of the Goods other than by us, attachment of any parts or accessories other than as approved by us, excessive temperature or corrosive atmosphere. Warranties are only applicable to the Customer named in the Contract Documentation and are not assignable.
6. CONTRACT PRICE, PAYMENT AND CREDIT
6.1. At Fleetwash NZ ’s sole discretion the Contract Price shall be either:
6.1.1. Fleetwash NZ ’s quoted price (subject to clause 7.2 below); or
6.1.2. as indicated on any invoice provided by Fleetwash NZ to you.
6.2. Fleetwash NZ reserves the right to change the Contract Price in the case of a Variation. Fleetwash NZ Limited RWA608 (updated October 2023)
6.3. The Customer must make payment of each invoice in full, in cleared funds
and without deduction, set off or claim.
6.4. Time for payment for the Services is of the essence. Unless otherwise set
out in this agreement or agreed by Fleetwash NZ , invoices shall be issued and
the Contract Price is payable by the Client immediately on completion of the
Services.
6.5. Fleetwash NZ may at its sole discretion require payment in full prior to
providing Services.
6.6. Where Fleetwash NZ has agreed in its sole discretion for Services to be
charged to a valid credit account:
6.6.1. payment is due in cleared funds by the 20th of the month following
the date of invoice by Fleetwash NZ ;
6.6.2. Fleetwash NZ may require the Customer to pay by way of direct
debit, and in such circumstances the customer agrees to complete and
return to Fleetwash NZ a Direct Debit Authority; and
6.6.3. Fleetwash NZ will monitor the amount of credit the Customer has
incurred and reserves the right at any time to cease providing Services to
the Customer until the amount outstanding has been decreased to a level
acceptable to Fleetwash NZ .
6.7. The Customer will be liable to Fleetwash NZ for all costs (including costs on a solicitor and client basis and collection agency commissions) incurred by
Fleetwash NZ in recovering (or attempting to recover) any amounts owed to
Fleetwash NZ by the Customer.
7. DELIVERY & RISK
7.1. Unless otherwise stated in writing, all times quoted for delivery of Goods and Services are estimates only and Fleetwash NZ shall not be liable for any loss or damage direct or consequential arising from failure to deliver on the anticipated or estimated time for delivery.
7.2. The Customer shall not be relieved of any obligation to accept or pay for
Services or Goods by reason of any delay in delivery or performance by
Fleetwash NZ .
7.3. Fleetwash NZ shall not be liable for any delay or failure in the Services or
performance of any of the obligations imposed by the Contract due directly or
indirectly to circumstances reasonably outside of our control, including force
majeure, accidents, variations of the Services, or any acts of any government,
territorial authority or similar body.
7.4. Risk of damage to or loss of the Goods passes to the Customer on delivery, the Customer must insure the Goods on or before delivery.
7.5. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Fleetwash NZ is entitled to receive all
insurance proceeds payable for the Goods. The production of these terms and
conditions by Fleetwash NZ is sufficient evidence of Fleetwash NZ ’s rights to
receive the insurance proceeds without the need for any person dealing with
Fleetwash NZ to make further enquiries.
8. INTELLECTUAL PROPERTY
8.1. All intellectual property (such as patentable inventions, non-patentable
processes or know-how, data, design, copyright, trade marks and the like) held
by Fleetwash NZ at the commencement of the Contract or created by Fleetwash NZ as a result of the Contract shall belong to Fleetwash NZ , unless otherwise agreed in writing between the parties.
9. OWNERSHIP IN GOODS
9.1. The Customer acknowledges and agrees that:
9.1.1. the legal, equitable and beneficial ownership and title to any plant,
equipment or materials brought onto the Premises by us remains vested in
us at all times;
9.1.2. title in all equipment, fixtures, fittings and other materials supplied
as part of the Services remains vested in us until all amounts owing to us
have been paid in full.
9.2. The Customer authorizes Fleetwash NZ to enter on to the Customer’s
property for the purposes of removing Goods where payment of Fleetwash NZ’s invoice in relation to the supply of those Goods has been outstanding for a period exceeding 60 days. The Customer acknowledges and agrees that Fleetwash NZ will not be liable for any damages, direct or consequential caused by Fleetwash NZ either entering the Customer’s property or by Fleetwash NZ removing Goods from the Customer’s property.
9.3. For the purposes of the Personal Property Securities Act 1999 (PPSA), you
agree that a security interest is granted in your present and after acquired
property (including the property described in clause 10.1 and all proceeds of that property) to secure all amounts owing to us. We may apply all payments in such manner as is desirable to preserve any purchase money security interest in that property. Nothing in section 116,120(2), 121, 125 to 127, 129, 131, 133 and 134 of the PPSA applies to the security interest, and you waive the right to receive a verification statement in respect of any security interest.
10. PRIVACY
10.1. Fleetwash NZ respects your privacy and is committed to protecting your
personal information. The Privacy Act (2020) requires us to tell you when we
collect personal information and how we will use it.
10.2. We collect and use personal information (including but not limited to name, contact details, payment details) in order to provide the Goods and Services, to complete business transactions with you and provide you with ongoing customer support in regard to our Services. Our privacy statement is available to view on request.
10.3. Unless you notify us otherwise, you consent to receiving marketing,
promotional and other material by way of electronic messages from us. We may also use your contact information to send you publications (newsletters/updates). These publications will include an unsubscribe option should you wish to discontinue receiving our publications.
10.4. We may disclose information to the following:
10.4.1. service providers (e.g. businesses to which we contract
maintenance work, debt collection agencies, process servers, lawyers,
telco suppliers, etc);
10.4.2. government authorities under statutory obligation. Fleetwash NZ
Limited RWA608 (updated October 2023) 12.5. You have the right to
access most personal information that we hold about you. Sometimes that
will not be possible but if that is the case you will be told why.
11. SUSPENSION AND TERMINATION
11.1. Without prejudice to any of our other rights or remedies, we may suspend
the Service (including the provision of documentation) at any time if you default in any of your obligations under these terms (including without limitation health and safety obligations), including failing or refusing to pay any invoiced amount in full by the due date for its payment.
11.2. We may terminate our obligations under these terms if at any time you:
11.2.1. become bankrupt, have a liquidator, receiver or statutory manager
appointed; or
11.2.2. default in your obligations under these terms and do not remedy
that default within 5 Working Days of receiving a notice requiring remedy.
12. BUSINESS TRANSACTIONS
12.1. The Customer agrees that where the Contract involves the supply of
services or goods of a kind ordinarily acquired for personal, domestic, household use or consumption but the Customer is acquiring those services and/or goods for the purposes of a business, then to the maximum extent permitted by the law, all guarantees, warranties, rights, or remedies implied by the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other guarantees, warranties, or provisions that would otherwise be implied by statute or rule of law are expressly excluded.
13. INDEMNITY
13.1. The Customer shall indemnify Fleetwash NZ and keep Fleetwash NZ fully
and effectively indemnified against all losses, claims, damages, costs (including
costs on a lawyer to client basis), charges, expenses, liabilities, demands,
proceedings, and actions whatsoever which Fleetwash NZ may sustain or incur or which may be brought or established against it by any person and in any case which arise out of or in relation to the performance by Fleetwash NZ of the Services, or by reason of any breach by the Customer of any of its obligations under the Contract or any other act or omission of the Customer whether or not by reason of any Act, regulation, common law rule, or in equity or otherwise and whether for damages or for other relief.
14. VARIATIONS
14.1. The Customer may request a Variation to the Goods and Services but may not (unless otherwise agreed in writing) request a Variation omitting or reducing the Services to be performed.
14.2. Fleetwash NZ is entitled to claim a Variation for:
14.2.1. any emergency works required for health and safetyor environmental reasons;
14.2.2. additional work and/or changes to the Services;
14.2.3. unforeseen physical conditions and latent issues which Fleetwash
NZ could not be aware of at the time of giving a Quote and/or are
discovered on commencement of the Services;
14.2.4. in the event of increases to Fleetwash NZ in the cost of labour,
goods, currency exchange rates or shipping costs which are beyond
Fleetwash NZ ’s control;
14.2.5. substitutions of any materials;
14.2.6. any increase in costs arising from a failure or delay on the
Customer’s part in complying with these terms; and
14.2.7. any Services provided outside normal business hours (except
where otherwise agreed by the parties).
14.3. No allowances have been made in the Contract Price for the handling of
hazardous substances (including asbestos), and Fleetwash NZ is also entitled to claim a Variation for any such costs.
14.4. A Customer order accepted by Fleetwash NZ shall not be cancelled by the Customer except by agreement in writing upon terms agreed between Fleetwash NZ and the Customer including cancellation charges which may be deducted from any advance payments made.
14.5. In the event of Fleetwash NZ incurring additional cost by reason of the
Customer failing to give Fleetwash NZ sufficient instructions pertaining to the
Contract or delivery of the Services the Contract Price may be increased at the
option of Fleetwash NZ.
15. CUSTOMER INFORMATION
15.1. Each person signing the Contract Documentation agrees that we may
obtain information about your creditworthiness for the purposes of deciding
whether to provide (or to continue to provide) goods and services to you. You
consent to any person providing us with such information, and irrevocably
authorize us to complete a credit check on you and/or disclose information to any person for any purpose relating to your credit or debt collection, including loading and checking details with any credit reporting agency.
16. NOTICES
16.1. All notices are to be in writing and hand delivered or sent by post or email
to the addresses set out in the Contract Documentation. Our address for service
is Fleetwash NZ Limited, Suite 20/18 Lambie Drive, Papatoetoe 2104, New
Zealand.
16.2. A notice is deemed to be received:
16.2.1. if personally delivered, when delivered; or
16.2.2. if posted, 5 Working Days after posting; or
16.2.3. if sent by email, when the email leaves the sender’s
communications system, provided that the sender does not receive any
error message relating to the sending of the email.
16.3. Despite clause 16.2, any notice received after 5pm, or received on a daythat is not a Working Day, is deemed not to have been received until 9am on the
next Working Day.
17. DISPUTE RESOLUTION
17.1. Nothing in these terms operates to exclude or restrict the ability of either
party to apply to a court of competent jurisdiction for injunctive relief.
17.2. If there is any dispute or disagreement relating to these terms or the
Services, the party raising the dispute must give the other party written notice
specifying particulars of the dispute. The parties agree that they will attempt to
resolve the dispute by negotiation.
17.3. If the dispute cannot be resolved by the parties’ Managing Directors within ten (10) Working Days after the date of referral under clause 18.3 then the dispute shall be determined by the relevant courts.
18. GENERAL
18.1. The benefit of the Contract shall not be assigned by the Customer without the consent of Fleetwash NZ in writing.
18.2. The Contract shall be deemed to have been entered into in New Zealand
and shall be governed by the laws of New Zealand
18.3. Any dispute between the parties which has not been settled by full and
frank discussion may (after giving thirty days' notice) be referred by either party to arbitration in accordance with the provisions of the Arbitration Act 1996 by an arbitrator appointed by the President for the time being of the New Zealand Law Society. Judgment on the award rendered may be entered in any Court having jurisdiction.
18.4. Any waiver by Fleetwash NZ of any rights arising from the Contract shall
not be construed as a continuing waiver or a waiver of other breaches of the
same or other terms of the Contract by Customer. No delay or forbearance by
Fleetwash NZ shall be construed as a waiver of Fleetwash NZ ’s rights.
18.5. Nothing in the Contract shall create a partnership or agency between the
parties except as expressly provided.
18.6. The Contract sets out the entire agreement and understanding between the parties relating to the subject matter. Fleetwash NZ may make modifications or amendments to the Contract terms Fleetwash NZ Limited RWA608 (updated October 2023) and conditions by posting a copy of the amendments to the Customer. Any request for Services after the amendments have been disclosed will be undertaken on the amended terms.