Terms & Conditions
1.Definitions and Interpretation
1.1Definitions: In this Agreement, unless the context requires otherwise:
Agreement means the Customer Account Application and these Terms and Conditions.
CGA means the Consumer Guarantees Act 1993.
Customer means the customer detailed in the Customer Account Application.
Customer Provided Information means any information, specifications, or instructions provided by the Customer or any third party who has not been engaged by AVANTI AUTOMOTIVE (including the details contained in the Customer Account Application).
Default Interest Rate means 12% per annum.
Delays has the meaning given to that term in clause 10.3(a).
Encumbrance means a mortgage, charge, security interest (as defined in the PPSA), pledge, lien, option, restriction, right of first refusal, right of pre-emption, third party right or interest, other encumbrance or security interest of any kind, or another type of preferential arrangement having similar effect.
FTA means the Fair Trading Act 1986.
GST means any goods and services tax or other similar tax which applies to the supply of the Products and Services (or any of the Products and Services) pursuant to the laws of New Zealand or any other country.
Order means an order for Products and/or Services which is made (in writing, orally or any other form) by the Customer and which AVANTI AUTO SERVICES agrees to supply; and Ordered shall be construed accordingly.
PPSA means the Personal Property Securities Act 1999.
Price means the price of the Products and Services determined in accordance with clause 3.1.
Products means all products, parts and goods supplied by AVANTI AUTOMOTIVE to the Customer from time to time.
Services means all services and advice provided by AVANTI AUTOMOTIVE to the Customer from time to time.
Quote means any quote given in writing by AVANTI AUTOMOTIVE to the Customer.
Working Day has the meaning given to that term in section 4 of the Property Law Act 2007.
1.2Contracting out: Nothing in this Agreement is intended to have the effect of contracting out of the provisions of the Credit Contracts and Consumer Finance Act 2003, CGA or FTA except to the extent permitted by law, and the provisions of this Agreement shall be read as modified to the extent necessary to give effect to that intention.
2.1These Terms and Conditions shall apply at all times to the supply of Products and Services by AVANTI AUTOMOTIVE to the Customer. The Customer shall be deemed to have confirmed its continued acceptance of these Terms and Conditions on making any Order or giving any instructions to AVANTI AUTOMOTIVE for the supply of Products and Services.
2.2These Terms and Conditions may be varied by AVANTI AUTOMOTIVE at any time. Any variations to the Terms and Conditions shall take effect from the time the varied Terms and Conditions are available at avantiautomotive.co.nz or are otherwise provided (including by email or in another electronic form) to the Customer (whichever is earlier).
2.3In the event of a conflict or inconsistency between these Terms and Conditions and any other contract, agreement or arrangement between the parties, these Terms and Conditions shall prevail.
3.1Subject to clause 3.3, the Price shall be that price described on the Quote (which shall be valid for 28 days from the date of the Quote) except that the Price shall be that price indicated on invoices issued by AVANTI AUTOMOTIVE from time to time if:
(a)the Customer does not make an Order for the Products and/or Services the subject of the Quote within 28 days from the date of the Quote;
(b)no Quote has been provided by AVANTI AUTOMOTIVE in respect to the Products and Services; or
(c)the Products and Services described in the Quote differ in any respect (and for any reason) from the Products and Services ultimately supplied by AVANTI AUTOMOTIVE.
3.2GST and other taxes and duties relating to the supply of the Products and Services to the Customer are not included in the Price and shall be immediately due and payable by the Customer on demand by AVANTI AUTOMOTIVE in addition to the Price at the rate(s) prevailing at the time.
3.3AVANTI AUTOMOTIVE may vary the Price if a variation to the Products and Services is requested by the Customer or if AVANTI AUTOMOTIVE determines that:
(a)additional work or a variation to the Products and Services is necessary or desirable; or
(b)the costs of supplying the Products and Services have changed,
due to circumstances beyond the reasonable control of AVANTI AUTOMOTIVE including Delays, the discovery of difficulties or complexities, onerous or unusual safety considerations or any inaccuracy, error or omission in any Customer Provided Information.
4.1AVANTI AUTOMOTIVE may from time to time issue an invoice for Products and Services supplied or partly supplied by AVANTI AUTOMOTIVE to the Customer (which may include any Products Ordered by the Customer but not yet provided). Unless otherwise agreed by the parties, vehicle’s will not be released to the Customer until the amount specified in each invoice has been paid in full.
4.2All payments must be paid in cleared funds immediately available for disbursement and without any deduction or withholding on account of any other amount, whether by way of set-off, counterclaim or otherwise, to such bank account as AVANTI AUTOMOTIVE nominates in writing.
4.3If AVANTI AUTOMOTIVE receives a payment that is insufficient to discharge all the amounts then due and payable by the Customer under this Agreement, AVANTI AUTOMOTIVE (and notwithstanding any contrary stipulation by the Customer) may apply that payment towards the obligations of the Customer under this Agreement in such order as it deems fit.
4.4AVANTI AUTOMOTIVE may require the Customer to pay a deposit in respect to any Order or prepay the Price in part or in full. If a deposit or prepayment is required by AVANTI AUTOMOTIVE, the Customer must pay that deposit or prepayment in accordance with the requirements stipulated by AVANTI AUTOMOTIVE at the time.
5.1An event of default (Event of Default) occurs if:
(a)the Customer breaches (or AVANTI AUTOMOTIVE reasonably believes that the Customer is likely to breach) this Agreement or some other contract, agreement or arrangement between the parties;
(b)any information the Customer (or any person on behalf of the Customer) has provided to AVANTI AUTOMOTIVE is untrue, misleading or deceptive in a material respect;
(c)the Customer is declared bankrupt, or insolvent or is otherwise wound up (whether voluntarily or by Court order), or has a liquidator or receiver appointed over all or any part of its assets, or enters into a composition with its creditors; or
(d)in the opinion of AVANTI AUTOMOTIVE, a material adverse change occurs in relation to the Customer.
5.2Without prejudice to any other rights or remedies available to AVANTI AUTOMOTIVE, if an Event of Default occurs, AVANTI AUTOMOTIVE may:
(a)terminate this Agreement; or
(b)suspend the supply of any Products and Services to the Customer,
in which case AVANTI AUTOMOTIVE will not be liable to the Customer for any loss, costs or damages incurred by the Customer due to AVANTI AUTOMOTIVE exercising its rights under this clause and all costs incurred by AVANTI AUTO SERVICES in exercising its rights under this clause shall be immediately due and payable by the Customer upon demand by AVANTI AUTOMOTIVE.
5.3On termination of this Agreement for whatever reason:
(a)without limiting the rights and remedies available to AVANTI AUTOMOTIVE, AVANTI AUTOMOTIVE shall be entitled to issue an invoice for Products and Services supplied or partly supplied by AVANTI AUTOMOTIVE at the date of termination (which may include any Products Ordered by the Customer but not yet Delivered) and such invoice shall be payable by the Customer in accordance with clause 4.1; and
(b)such termination shall be without prejudice to the rights and remedies of any party in respect of any antecedent breach of this Agreement by the other party.
5.4If AVANTI AUTOMOTIVE does not receive (in accordance with the terms of this Agreement) any amount due to it by the other Customer pursuant to the terms of this Agreement, then the Customer must pay interest at the Default Interest Rate on that amount (including interest payable under this clause) calculated from its due date to the date of its receipt in full by AVANTI AUTOMOTIVE (after, as well as before, judgment). Default interest payable under this clause shall be compounded monthly and added to the amount due. This obligation to pay default interest arises without the need for a notice or demand and is without prejudice to the other rights and remedies of AVANTI AUTO SERVICES.
5.5The Customer shall pay to AVANTI AUTOMOTIVE on demand all costs of and incidental to the enforcement or attempted enforcement of AVANTI AUTOMOTIVE rights, remedies and powers under this Agreement (including legal costs on a solicitor and own client basis) in the event of a breach or threatened breach by the Customer.
6.1If AVANTI AUTOMOTIVE has indicated a date on, or timeframe within, which any Products or Services will be supplied, the Customer acknowledges that such date or timeframe (as applicable) is indicative only and shall not be binding on AVANTI AUTOMOTIVE.
7.Ownership and title
7.1Until the Customer has complied with all of its obligations and paid all amounts payable by the Customer to AVANTI AUTOMOTIVE to this Agreement and any other contract, agreement or arrangement between the parties (whether or not such obligations and payments of such amounts are due for performance or payment) ownership and title in the Products shall be retained by AVANTI AUTOMOTIVE and shall not pass to the Customer.
8.Personal Property Securities Act
8.1This Agreement constitutes a security agreement for the purposes of the PPSA and the Customer agrees that AVANTI AUTOMOTIVE has a security interest (as that term is defined in the PPSA) in the Products and shall promptly do all things required by AVANTI AUTOMOTIVE to perfect its security interest.
9.Collection of information
9.1The Customer irrevocably authorises:
(a)any person to provide AVANTI AUTOMOTIVE such information as AVANTI AUTOMOTIVE may require in response to any credit enquiry relating to the Customer;
(b)AVANTI AUTOMOTIVE to collect, retain and use any information about the Customer, for the purpose of assessing the Customer's creditworthiness or marketing Products and Services to the Customer; and
(c)AVANTI AUTOMOTIVE to disclose information about the Customer, whether collected by AVANTI AUTOMOTIVE from the Customer directly or obtained by AVANTI AUTOMOTIVE from any other source, to any third party for the purpose of providing or obtaining a credit reference, debt collection or notifying a breach by the Customer.
9.2Where the Customer is an individual:
(a)the authorities under clause 9.1 are authorities or consents for the purposes of the Privacy Act 1993; and
(b)the Customer may request a copy of the information about the Customer held AVANTI AUTOMOTIVE and require AVANTI AUTOMOTIVE to correct any incorrect information about the Customer held by AVANTI AUTOMOTIVE.
10.12 Month Warranty and Liability
10.1AVANTI AUTOMOTIVE provides a 12 month warranty against any defects in its workmanship AVANTI AUTOMOTIVE shall determine whether to remedy any such defect by repair or replacement.
10.2AVANTI AUTOMOTIVE is not liable for any defect or breach of warranty and shall have no liability or obligation in relation to any defective Products and Services:
(a)if the Customer fails to notify AVANTI AUTOMOTIVE in writing of the defect within 12 months of the date that the Products or Services are supplied;
(b)to the extent that the defect or breach is caused directly or indirectly by any of the following that occurs during or after the Products and Services are supplied:
(i)a cause independent of human control;
(ii)any act or omission, including accidental damage, by a person who is not AVANTI AUTOMOTIVE or a person for whom AVANTI AUTOMOTIVE is responsible in law;
(iii)failure to carry out normal maintenance;
(iv)failure to carry out, or cause to be carried out, repairs as soon as practicable after the defect becomes apparent;
(v)failure to comply with the instructions given by AVANTI AUTOMOTIVE or any installer, designer, supplier or subcontractor from time to time;
(vi)any inaccuracy, error or omission in any Customer Provided Information.
10.3AVANTI AUTO SERVICES shall not be liable to the Customer for any:
(a)Delay in supplying the Products and Services or non-performance of the obligations of AVANTI AUTOMOTIVE due directly or indirectly to circumstances beyond the control of AVANTI AUTOMOTIVE including strikes, accidents, civil commotion, epidemics, floods, delays in transportation, shortage of labour and/or materials, difficulties with variations, acts of God, acts, demands or requirements of any government, Council or similar body, the failure of the Customer or other third party to complete any work or provide detailed instructions to AVANTI AUTOMOTIVE whenever the same may be required within a reasonable time (or within the time specifically allowed for the same by AVANTI AUTOMOTIVE) and any other delays as a result of any failure of the Customer insofar as the same are not reasonably attributable to AVANTI AUTOMOTIVE (Delays).
(b)Costs, loss or damage incurred or suffered by the Customer as a result of the late, short or non-delivery of the Products and Services. Any time for delivery indicated by AVANTI AUTOMOTIVE shall be approximate only and shall not be of the essence of the contract between the parties.
10.4To the fullest extent permitted by law, the liability of AVANTI AUTOMOTIVE arising from any cause (whether in contract, tort, any enactment, or otherwise), including the negligence of AVANTI AUTOMOTIVE or any of its employees, contractors or agents, is limited to the Price paid by the Customer in relation to the specific Products and Services giving rise to the claim against AVANTI AUTOMOTIVE.
11.Consumer Guarantees Act and Fair Trading Act
11.1For the purposes of section 43 of the CGA and section 5D of the FTA, if the Products and Services are being supplied and acquired in trade (as that term is defined in section 2 of the CGA), the parties agree that the provisions of the CGA and sections 9, 12A, 13 and 14(1) of the FTA have been contracted out of and do not apply to the supply of the Products and Services.