Yardley’s Diesel Specialists LTD Terms of Trade & Conditions.
TERMS OF TRADE
Recitals
• Yardley’s Diesel Specialists Ltd is hereinafter referred to as “Yardley's”.
• Any Limited Liability Company, Corporation, Partnership, Sole Trader, Society, Trust, Individual or other entity that orders products and or services from Yardley’s Diesel Specialists Ltd is hereinafter referred to as “Customer”.
Payments
• All payments against invoices from Yardley’s to the Customer shall be made by the 20th day of the month after invoice date.
• Yardley’s may change the payment schedule at its discretion with 30 days’ notice to the Customer.
• Yardley’s reserves the right to withdraw or refuse credit facilities or to require payment of a deposit before delivery.
• Interest shall be paid at 5% per month calculated on a monthly basis on all outstanding amounts from the date on which the payment was due until actual date of payment.
• Any expenses, disbursements and costs (22% flat rate collection fees plus any legal costs) incurred by Yardley’s in the event of customer default are payable by the customer.
• Yardley’s reserves the right to change the price on any invoice:
1. If the Goods requested are changed; or
2. If the Services originally contracted for are changed; or
3. In the event of cost increases to Yardley’s namely with respect to the cost of labour or goods beyond the control of Yardley’s.
Services
• “Services” shall include all labour, parts, expenses and sub-contractors’ services supplied by Yardley’s to the Customer.
• All invoices rendered shall include services provided.
Freight
• All product prices exclude freight charges unless otherwise specified and advised in writing to the Customer.
• Yardley's reserves the right to levy a freight surcharge where urgent delivery is requested by the customer.
• Under the Carriage of Goods Act all claims for loss of or damage to goods must be made on the carrier within 30 days from the date of invoice.
Goods for Return
• Goods may only be returned to Yardley’s with prior written consent and within 14 days after delivery.
• Should Yardley’s discover that there is not a material defect in the returned goods; Yardley’s may charge the customer a handling fee of 10% of the Invoice that the goods were supplied on.
• Goods not returned in accordance with the above will be rejected by Yardley's.
• All costs for the return or delivery of the goods shall be payable by the customer.
Supply and Delivery
• All services supplied shall be deemed to have been supplied when notified by Yardley’s. If the Customer claims that some services have not been supplied or rendered, the Customer must notify Yardley’s within fourteen (14) days of notification of supply.
• Any claim by the customer must be made in writing.
• Delivery of goods shall be deemed to be effected by Yardley’s with proof of a Courier tracking number to the delivery address supplied by the customer, whether or not the customer is present at the time of the delivery to acknowledge receipt.
• Any claim that goods are not as specified or are not delivered as stated on the Yardley’s invoice, must be made in writing within fourteen (14) days of delivery.
• Goods will not be accepted for return for credit without Yardley’s prior written approval.
Title and Security (Personal Property Security Act 1999)
• Title in any goods invoiced and supplied by Yardley’s passes to the customer only when the customer has made payment in full along with payment in full for all other sums due to Yardley’s on any account whatsoever.
• Until all sums due to Yardley’s by the customer have been paid in full, Yardley’s retains a security interest in all goods.
• The customer grants to Yardley’s a personal property security in the goods (by virtue of the Retention of Title clause in these terms) and all goods previously supplied by Yardley’s to the customer (if any) and all after acquired goods supplied by Yardley’s to the customer.
• The customer agrees to:-
1. Sign any further document and provide any further information which the customer warrants to be complete, accurate and up-to-date in all respects, which Yardley’s may reasonably require to register a financing statement or financing change statement on the personal property securities register.
2. Not register a financing change statement or a change demand without the prior written consent of Yardley’s.
3. Give Yardley’s no less than 14 days written notice of any change of the customer’s name or other change in the customer’s details (including but not limited to changes in address, telephone number, trading name or business practice).
4. Indemnify Yardley’s for any costs incurred by it in relation to the above.
5. Waive any rights to receive a copy of the verification statement under the Personal Property Securities Act and agrees to the extent permitted by law that under this contract:-
• The customer will have no rights under (or by reference to) Section 114(1) or 133 of the Personal Property Securities Act.
• The provisions of Part 9 of the Personal Property Securities Act which after the benefit of the customer or place obligations on Yardley’s will apply only to the extent that they are mandatory.
• Where Yardley’s has rights under this contract additional to those in Part 9 of the Personal Property Securities Act, those rights will continue to apply.
In the event the customer refuses to comply with its obligations under the above clause, then by accepting this document the customer grants to Yardley’s power of attorney to sign all documents giving Yardley’s personal property security in the goods.
If the goods are attached, fixed or incorporated into any property of the customer, by way of any manufacturing or assembling process by the customer or any third party, title in the goods shall remain with Yardley’s until the customer has made payment for all goods. Where those goods are mixed with other property so as to be part of or a constituent of any new products, title to these new products shall be deemed to be assigned to Yardley’s as security for the full amount owing to Yardley’s by the Customer.
The customer gives irrevocable authority to Yardley’s Diesel Specialists or its agents to enter any premises occupied by the customer or on which products are situated at any reasonable time after default by the customer or before default if Yardley’s believes a default is likely, and to remove and repossess any goods and any other property to which goods are attached or in which goods are incorporated. Yardley’s shall not be liable for any costs, damages, expenses or losses incurred by the customer or third party as a result of this action, nor liable in contract or in tort or in otherwise in any way whatsoever unless by statute such liability cannot be excluded. Yardley’s may either resell any repossessed goods and credit the customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed goods and credit the customer’s account with the invoice value less such sum as Yardley’s reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.
General
• These terms of trade shall apply to all goods and services invoiced to the customer.
• If any provisions of these terms are unenforceable, that term will be deemed modified to the extent necessary to make it enforceable or if modification is impractical, the provision will be deemed deleted but without affecting the remainder of these terms.
• These terms may only be varied by the written agreement of Yardley’s
• Any notice required to be served by either party shall be deemed to have been properly served if couriered with proof of delivery to the other party at the place of business or residence of such party.
• These terms shall be governed by and construed in accordance with the laws of New Zealand.
• Parts supplied are warranted to be free of workmanship and material Defects at time of Supply.
• Under no conditions whatsoever will any claim be accepted by Yardley's for direct or indirect costs incurred by the customer as a consequence of parts supplied or fitted by Yardley's failing or deemed to be unsuitable.
• Yardley's will not accept any claim whatsoever for consequential damages as a result of parts supplied to the customer or fitted by Yardley's.
Returns, Claims, Refunds
The customer shall immediately upon receipt of goods supplied fully inspect such goods and satisfy itself that the goods are correct. If the customer is unsatisfied, the customer must immediately contact Yardley’s and communicate all details of such dissatisfaction. Unless the above procedure is followed Yardley's is entitled to assume that the goods supplied are correct and no returns claims for refunds will be permitted or made.
Customer Information
In accordance with the Privacy Act 1993 the customer authorises Yardley's to obtain such information as it may require in response to their enquiries from any source in order to determine the customer’s creditworthiness and to be used as a guide concerning credit limits.
Yardley’s will set a credit limit and reserves the right to alter the credit limit from time to time.
The customer consents to Yardley’s collecting, using and disclosing the Customer’s personal information for the following purposes:
1. Verifying any information that the Customer provides with third parties and third party databases, including Government agencies e.g. NZ Transport Authority, Motor Vehicle Register, PPSR etc.
2. Carrying out credit checks with a credit reporting agency for a purpose of making a credit decision affecting the Customer (including debt collection) or for the requirements of the Anti-Money Laundering and Countering Financing Terrorism Act 2009.
3. Debt recovery including appointing an agent to collect any outstanding debts and listing defaults with a credit reporting agency.
4. Checking the Ministry of Justice fines database for any overdue fines the customer may have. This will require Eurotune to provide Customer information to the Ministry of Justice. This check may be carried out by a credit reporting agency, which will require the search results to be disclosed to a credit reporting agency.
5. The Customer understands that if Yardley’s discloses the Customer’s personal information to a credit reporting agency, they may hold that information on their credit reporting database and use it for providing credit reporting services and for any other lawful purpose and they may disclose my information to their subscribers for the purpose of credit checking or debt collection or for any other lawful purpose.
Consumer Guarantees Act
• Where Yardley’s supplies goods and services to the customer for the customer’s use in a business for the purpose of the business, the customer agrees that the Consumer Guarantees Act does not apply.
• Where Yardley’s supplies the product and services to a customer as a “consumer” as defined in the Consumer Guarantees Act for a non- business purpose, the Consumer Guarantees Act will apply and prevail over any contrary provision in these terms and conditions.
Disputed Invoices
• The customer must notify Yardley’s Diesel in writing within five days of receipt of any disputed invoice. The notification must quote the relevant invoice number and must include all the necessary details of the reason the invoice is being disputed.
• Should the customer fail to notify Yardley’s of any dispute, defect or damage within five days of receipt of the invoice, the customer shall be deemed to have accepted the invoice and shall pay that invoice according to the terms and conditions contained in this document.
Confidential Information
Each party agrees to always keep the other party’s confidential material confidential and not to use the confidential material for any purpose other than for the purpose for which it was supplied or copy or reproduce any of the confidential material in any way except whether disclosure is necessary to enable goods or services to be used under lease or where the party that owns the confidential material has consented to disclosure.
On request each party will ensure that any confidential material (including any copies) that it possesses or controls and that belongs to the other party is returned to that other party.
Confidential material means:-
1. All information and other material relating to Yardley’s business, employees, goods or services which we make available or have previously made available to the customer; or
2. Any report or material which we produce as a direct or indirect result of any work that we carry out for you and anything that you derive from this information and material but excluding everything which is generally available to the public or you or a third party have independently developed or acquired this confidential material.
Resolving Disputes
Yardley’s and the customer will use all reasonable endeavours to resolve any dispute between them. If they cannot resolve their dispute between them, they will:-
1. Refer the dispute to mediation which will be conducted in accordance with the Resolution Institute New Zealand Standard Mediation Agreement; and
2. If mediation is unsuccessful, the matter of dispute shall be referred to a single arbitrator in accordance with the provisions contained in the Arbitration Act 1996 and any amendments.
Nothing in this clause will preclude either party from taking immediate steps to seek urgent equitable relief before an appropriate Court.
Assignment
Yardley’s is entitled at any time to assign to any other person all or any part of the debt owing by the customer to Yardley’s.
Review of Terms
Yardley’s reserves the right to review any of these terms at any time. Any change will take effect on the next transaction following the date on which Yardley’s notified the customer of such change.
Intellectual Property
The customer acknowledges that Yardley’s is the sole owner of all intellectual property including business know-how, ideas, methodologies, routines, systems and processes relating to or arising, directly or indirectly, out of the goods and services that Yardley’s supplies to the customer; or developed or contributed to by Yardley’s in relation to any information, fault, repair or documentation that is supplied to the customer or as a result of Yardley’s performing services or any other work for the customer.