Terms of Trade
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AUTOHUB SERVICE DESCRIPTION AND TERMS OF TRADE
(Importing into New Zealand)
“AUTOHUB” means Autohub New Zealand Limited, its successors, subsidiaries, group and assigns or any person or entity acting on behalf of and with the authority of Autohub.
“Customer” means the person requesting the Goods and/or Services (including their agent or any person acting on behalf of them) and if there is more than one Customer then to each Customer jointly and severally.
“Goods” means the items and equipment being transported by AUTOHUB for the Customer.
“Price” means the price payable (plus GST if any) for the Goods and Services.
“Services” means all and any services requested by the Customer to AUTOHUB, including but not limited to storage.
“Working Day” means a day on which registered trading banks are open for business in Auckland, New Zealand (other than a Saturday, Sunday or public holiday);
- Terms and conditions
2.1 It is agreed that these Terms contain the entire agreement between the AUTOHUB and the Customer and that there are no promises, terms, conditions or obligations and no warranties or representations, other than those contained in this contract or otherwise required by law.
- Price and Payment
3.1 Upon the Customer requesting the Goods/Services from AUTOHUB, AUTOHUB will pre-book shipping space and forward the following to the Customer via the email address supplied to Autohub:
- notification of the intended shipping details;
- estimated time of arrival; and
- An invoice for the Goods/Services which may include a non-refundable deposit payable on issue of the invoice.
3.2 The Price shall be that as indicated on any invoice issued at any time to the Customer.
3.3 AUTOHUB, in its sole discretion, reserves the right to change the Price if the Customer requests a variation. Any costs whatsoever associated with any variation will be charged and shown as variations on the invoice issued by AUTOHUB to the Customer. The Customer shall respond to any variation invoice submitted by AUTOHUB within 3 working days from receipt of the same from AUTOHUB (time being of the essence). Failure to do so will entitle AUTOHUB to add the cost of the variation to the Price. Payment for any and all variations must be made in full by the Customer to AUTOHUB at the time of their completion and, in any event, prior to any Goods being released for delivery or collection.
3.4 The Price will be paid by the Customer on the date/s determined by AUTOHUB and advised to the Customer from time to time, time being of the essence.
3.5 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to in writing prior to payment between the Customer and AUTOHUB.
3.6 The Customer shall not be entitled to set off against, withhold, or deduct from the Price whatsoever.
3.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to AUTOHUB an amount equal to any GST payable for the supply by AUTOHUB of the Goods. The Customer must pay GST, without deduction or set off any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay all and any other taxes and duties that may apply to the Goods /Services in addition to the Price except where they are expressly included in the Price.
4.1 The Customer agrees that it is the Customer’s sole responsibility to ensure that the Customer’s selling dealer/agent promptly supplies the necessary release notification to AUTOHUB, and to ensure that all payments made are received by AUTOHUB in a timely manner and prior to arrival of the Customer’s vehicles in New Zealand.
5.1. Should the Customer requests AUTOHUB to leave Goods outside the Customer’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk with no recourse whatsoever against AUTOHUB for any loss or damage.
5.2 The Customer shall be deemed to be bound by and to warrant the accuracy of descriptions, values, dimensions, weights and other particulars furnished to AUTOHUB for customs, consular, road transport and other purposes and shall fully indemnify AUTOHUB against all and any losses, damages, expenses and fines arising from any inaccuracy or omission whatsoever and howsoever occurring.
5.3 The Customer shall be liable for any freight, duty, tax, impost, excise, levy, penalty, deposit or outlay of whatsoever nature levied by any Government, authority or other third party in connection with the Goods and for any payments, fines, expenses, loss or damage whatsoever and howsoever incurred or sustained by AUTOHUB in connection therewith and shall fully indemnify AUTOHUB, its servants and agents from all claims by third parties howsoever arising in connection with the Goods/Services.
5.4 AUTOHUB is under no circumstance responsible to the Customer in any way in respect of any vehicle complying or not complying with the registration requirements in New Zealand from time to time. The Customer acknowledges that any advice or information given to them by AUTOHUB on vehicle compliance is only to assist understanding and is not to be relied upon in any way. Compliance of the vehicle is the Customer’s sole responsibility.
5.5 The Price, including, but not limited to freight and shall be paid and non-returnable in any event whatsoever and shall be at the sole risk and expense of the Customer.
5.6 AUTOHUB may at any time reweigh, re-measure or revalue the Goods and if the particulars furnished by or on behalf of the Customer are incorrect, it is agreed the Customer shall immediately upon issue of invoice from AUTOHUB, pay that sum equal to two times the difference between the incorrect and correct value.
5.7 Unless a Convention or law limiting AUTOHUB’s liability to a greater amount compulsorily applies, liability of AUTOHUB arising out of any one incident whether or not there has been any declaration of value of the Goods, for breach of any express warranty in these terms and conditions or howsoever arising, is limited to any of the following as determined by AUTOHUB (in its sole discretion):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
6.1 Where the Customer has not paid the Price in accordance with these Terms or is otherwise in breach of these Terms AUTOHUB reserves the right (in its sole and unfettered discretion) to move the Goods offsite for storage at the Customer’s cost. Any and all costs associated with this are the responsibility of the Customers and may include transport to/from offsite storage, admin fees, handling fees, legal fees (on a solicitor to client basis) and daily storage costs. Such shall be paid, together with all other outstanding payments, by the Customer to AUTOHUB prior to the Goods being released to the Customer.
6.2 Further to any other rights or remedies AUTOHUB may have under these Terms, if a Customer has made payment to AUTOHUB, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any and all other costs incurred by AUTOHUB under this clause including but not limited to legal costs on a solicitor to client basis.
6.3 Without prejudice to AUTOHUB’s other remedies at law AUTOHUB shall be entitled to cancel all or any part of any order which remains unfulfilled and all amounts owing to AUTOHUB shall, whether or not due for payment, become immediately payable if:
(a) any money payable to AUTOHUB becomes overdue, or in AUTOHUB’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by AUTOHUB;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
- Non-payment or Non-receipt of Release Authority
7.1 Should AUTOHUB not have received the Customer’s payment and/or the Customer’s selling dealer/agent release notification, in time to avoid Port demurrage costs, AUTOHUB will place the Customer’s Goods into storage (if such storage is available all the time) at the cost of the Customer, and they will remain undeliverable until the AUTOHUB invoice is paid, and/or the Release Notification is received by AUTOHUB and the storage costs are paid.
7.2 At the time of placing vehicles into storage, the Customer and the Customer’s selling dealer/agent will be notified in writing by AUTOHUB. After an initial 5 working days, and at each successive 5 working day interval, AUTOHUB will attempt to contact both the Customer and the Customer’s seller to request payment to enable the Goods to be released.
7.3 Should the Goods remain in storage for 20 working days, AUTOHUB will then issue a final demand to the Customer and the Customer’s Selling dealer/agent, stating that unless outstanding issues are resolved to its satisfaction within 5 working days of that notice, AUTOHUB will take the steps it considers appropriate (in its sole and unfettered discretion) to recover costs.
7.4 Where AUTOHUB receives a release notification from the dealer/agent, but the Customer has not paid the AUTOHUB invoice, AUTOHUB will attempt to contact the Customer, seeking confirmation of the reason for the nonpayment, and a copy of the enquiry will be sent to the Customer’s dealer/agent with a request for advice as to whether he does or does not have any charge over the vehicles in terms of the Customer’s arrangements with him. Once the positions are known, AUTOHUB will take such action as it deems to be appropriate (in its sole and unfettered discretion) to recover the debt owing to it. In any event AUTOHUB is not in anyway obliged to release the Goods until payment of the AUTOHUB invoice and any additional costs has been made by the Customer.
- Title to Goods and Uncollected Goods
8.1 AUTOHUB and the Customer agree that rights to the Goods shall not pass until:
(a) the Customer has paid AUTOHUB all amounts owing to AUTOHUB; and
(b) the Customer has met all of its other obligations to AUTOHUB.
8.2 It is further agreed that:
(a) Until rights in the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must deliver the Goods to AUTOHUB on request;
(b) The Customer irrevocably authorises AUTOHUB to enter any premises where AUTOHUB believes the Goods are kept and recover possession of the Good;
(c) AUTOHUB may recover possession of any Goods in transit whether or not delivery has occurred; and
(d) AUTOHUB may commence proceedings to recover the Price of the Goods sold notwithstanding that right in the Goods has not passed to the Customer.
9. Security and Personal Properties Securities Act
9.1 The Customer:
(a) agrees that the retention of title in clause 8.1 of these Terms creates a Purchase Money Security Interest (having the meaning given to that term in the PPSA) in all present and after acquired Goods (and their Proceeds) as security for payment of the purchase price for the Goods until such amount is paid in full; and
(b) grants to AUTOHUB (unless otherwise agreed in writing by AUTOHUB) a security interest in all of the Customer’s present and after acquired personal property (as defined in the PPSA) including a fixed charge over all the Customer’s real property, wherever situated as security for the due payment of all other Secured Indebtedness, and to secure performance of all obligations owing by the Customer to AUTOHUB or any Related Company (such personal property and real property is together the “Secured Property”).
9.2 The Customer undertakes:
(a) to promptly do all things, execute all documents and/or provide any information which AUTOHUB or any Related Company may reasonably require to enable AUTOHUB or any Related Company to perfect and maintain the perfection of its security interests (including by registration of a financing statement); and
(b) not to consent to or enter into any agreement which permits any supplier or other person to register a security interest in respect of any collateral subject to AUTOHUB’s security interest, including (without limitation) the Goods (whether an accession or otherwise), which ranks in priority to AUTOHUB’s rights as first ranking security holder.
9.3 To further secure the Secured Indebtedness, the Customer agrees AUTOHUB shall have the right, at its absolute discretion to complete and register a mortgage (in the form of the then current New Zealand Law Society all obligations mortgage) over any interest in any land owned or held by the Customer now or in the future (whether a beneficial or legal interest owned jointly or alone, and as trustee or otherwise) and/or to lodge a caveat against the title to such land and the Customer irrevocably appoints AUTOHUB as its attorney for the purposes of executing and registering such mortgage and specifically authorises AUTOHUB to lodge a caveat against such land.
9.4 Each security interest created under these Terms is a continuing security, notwithstanding any intermediate payments or settlements of accounts or anything else and is in addition to, and is not to be merged with any other security or guarantee (present or future) expressed or intended to be security for any Secured Indebtedness or any other obligations owing by the Customer to AUTOHUB or any Related Company.
9.5 The Customer waives its rights under the PPSA to receive a copy of any verification statement, financing statement or financing change statement (as those terms are defined in the PPSA) and agrees that:
(a) as between AUTOHUB and the Customer, the Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133, 134 and 148 of the PPSA;
(b) to the extent permitted by law these Terms exclude any other provisions of the PPSA which may be excluded in AUTOHUB’s discretion and which would otherwise confer rights on the Customer; and
(c) where AUTOHUB’s has rights in addition to Part 9 of the PPSA, those rights will continue to apply.
9.6 The Customer acknowledges that is has received value as at the date of first delivery of the Goods and that AUTOHUB has not agreed to postpone the time for attachment of the security interest granted to AUTOHUB under these Terms.
9.7 The Customer must not:
(a) change its name, address or contact details without providing AUTOHUB 30 days prior written notice (which may be by email the address of an authorised AUTOHUB representative;
(b) give to AUTOHUB a written demand, or allow any other person to give AUTOHUB a written demand requiring a financing change statement to be registered; or
(c) lodge a change demand or allow any other person to lodge a change demand, in each case in relation to a financing statement registered by AUTOHUB under the PPSA.
9.8 The Customer will, upon demand, pay all AUTOHUB’s expenses and legal costs (on a solicitor-client basis) in relation to or in connection with the registration, maintenance and enforcement of AUTOHUB’s security interest.
9.9 If, at any time and for any reason, an Event of Default occurs, then (without prejudice to any other remedies AUTOHUB may have):
(a) AUTOHUB may suspend or cancel (in whole or in part) any order created under these Terms or any other contract with the Customer by written notice to the Customer.
(b) AUTOHUB may delay delivery of any Goods until the matter is resolved to AUTOHUB’s satisfaction.
(c) the Secured Indebtedness will become immediately due and payable.
(d) each security interest created under these Terms will become immediately enforceable.
(e) AUTOHUB may at any time appoint in writing one or more Receivers (jointly and/or severally) in respect of any Secured Property who shall be entitled to exercise all rights conferred on AUTOHUB under these Terms as well as at law generally and pursuant to the Receiverships Act 1993 and otherwise on such terms considered necessary or expedient by AUTOHUB;
(f) AUTOHUB or a Receiver may take possession of the Goods and any other Secured Property (including Goods that have become an accession under the PPSA) and may dispose of them or retain them for the benefit of AUTOHUB or any Related Company and for that purpose may, without notice enter directly (or through its agents) on any premises where AUTOHUB reasonably believes the Goods are stored, without being liable to any person. In respect of other Secured Property AUTOHUB may, in the name of the Customer or otherwise, at any time do anything and exercise any right which the Customer could do or exercise in relation to the Secured Property, including the right to take possession of, demand, collect and get in any Secured Property and deal with it in any way whatsoever including but not limited to disposing of Secured Property, cancelling any contracts, borrowing any money, taking any proceedings in the Customer’s name and settling any disputes or proceedings; and
(g) AUTOHUB may suspend all payment credit arrangements offered to the Customer immediately, without notice, until the Event of Default is remedied to AUTOHUB’s satisfaction and require future orders to be paid in cash in full prior to Delivery.
9.10 AUTOHUB does not (and will not be deemed to) undertake any of the Customer’s obligations in respect of the Secured Property by virtue of these Terms.
9.11 AUTOHUB is not required to marshal, enforce or apply under any security interest, guarantee or other entitlement held by AUTOHUB at any time or any money or property that AUTOHUB at any time holds or is entitled to hold.
9.12 The remuneration of the Receiver may be fixed by AUTOHUB but is payable by the Customer and forms part of the Secured Indebtedness. To the fullest extent permitted by law, a Receiver will be the agent of the Customer and the Customer will be solely responsible for that Receiver’s acts and defaults.
9.13 AUTOHUB may remove any Receiver appointed by providing that Receiver with written notice that the Receiver’s appointment has thereby ceased, whereupon the Receiver shall immediately cease to act.
9.14 The Customer irrevocably appoints, and ratifies the actions or omissions of, AUTOHUB, each Receiver, each nominee of AUTOHUB in whose name any Secured Property is registered and each duly authorised officer or attorney of AUTOHUB severally, to be its attorney (Attorney) (with full power to appoint substitutes and to sub-delegate) on behalf of the Customer and in the Customer’s name or otherwise and at its expense to complete, execute and otherwise perfect all assignments, security interests and other agreements and documents, and generally to do all other things which the Attorney may consider necessary or expedient to secure AUTOHUB the full benefit of its rights and intended rights under these Terms and any other contract with AUTOHUB to secure payment of the Secured Indebtedness and performance of the Customer’s obligations to AUTOHUB and any Related Company and any matters incidental thereto.
9.15 A certificate signed by AUTOHUB as to an amount due by the Customer shall be conclusive evidence of such for all purposes, including for any proceedings.
10.1 AUTOHUB may at any time collect, hold and use information relating to this Terms of Trade for any purposes connected with its business including (but not limited to) 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.
10.2 Information disclosed by AUTOHUB 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.
10.3 Under the Privacy Act 2020 individuals have the right to access and correct their personal information by contacting AUTOHUB.
10.4 The Customer, any director signing on behalf of the customer and any guarantor authorises AUTOHUB 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 AUTOHUB and the customer further authorises AUTOHUB to disclose information to any personal entity for the above purposes and such person or entity to collect and hold and use information from AUTOHUB.
10.5 The Customer, directors and/or guarantors in accepting these terms of trade acknowledges that from time to time, information may be disclosed to a foreign person or entity which may not be required to protect the information in the way that provides comparable safeguards to the Privacy Act 2020. The customer, its directors and/or guarantors expressly acknowledge that possibility and nevertheless authorises AUTOHUB to disclose personal information to such foreign persons or entities.
11.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
11.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand, in which AUTOHUB has its principal place of business and are subject to the jurisdiction of the courts in New Zealand.
11.3 AUTOHUB may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
11.4 The Customer cannot licence or assign without the prior written approval of AUTOHUB which shall be at the sole and unfettered discretion of AUTOHUB.
11.5 AUTOHUB may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of AUTOHUB’s subcontractors without the authority of AUTOHUB.
11.6 The Customer agrees that AUTOHUB may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer receives such changes, or otherwise at such time as the Customer makes a further request for AUTOHUB to provide Services to the Customer.
11.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
11.8 If any part, term or provision of these Terms shall be held invalid, void, illegal or unenforceable the validity, existence, legality or enforceability of the remainder of these Terms shall not be affected, prejudiced or impaired.
11.9 The parties assure each other that they have the power to make and carry out the terms of these Terms and that each has taken and will take all necessary action (corporate and otherwise) to authorise the execution, delivery and performance of their respective obligations under these Terms.
11.10 Nothing in these Terms shall constitute a partnership between the parties or constitute the parties as joint venturers or any party as agent for another party.