General Terms of Trade
1.1 Definitions: In this Agreement, unless the context otherwise requires:
Agreement includes any Repair Order and these General Terms and Conditions;
Business Day means a day on which registered banks are open for business in the primary trading location of Midas Franchisee, excluding Saturdays, Sundays and public holidays;
Customer means the person or entity to or for whom the Parts and/or Services are to be supplied by Midas Franchisee in accordance with any Repair Order from time to time;
Event of Default occurs if Customer:
(a) becomes, or is deemed to be, insolvent or bankrupt;
(b) goes into receivership or has a receiver, administrator, trustee or manager (including a statutory manager) appointed in respect of Customer and/or all or any of Customer's property; or
(i) breached a provision of this Agreement that is incapable of remedy; or
(ii) failed to remedy any breach of this Agreement that is capable of remedy within 10 Business Days of notice of that breach having been given stating the nature of the breach and requiring remedy;
Force Majeure Event means any event or circumstance (whether arising from natural causes, human agency or otherwise) that is beyond the reasonable control of Midas Franchisee, including strikes, lockouts or other labour disputes, riot, civil commotion, fire, flood, drought, loss or delay at sea, breakdown or war (whether declared or not);
GST means goods and services tax under the Goods and Services Tax Act 1985;
Loan Vehicle means any vehicle supplied on loan or for hire by Midas Franchisee to Customer from time to time;
Midas Franchisee means the Midas franchise company named in the Repair Order or otherwise engaged by Customer to provide the Parts and/or Services;
Midas Group means Midas New Zealand Limited and any franchise company operating as a Midas Store in New Zealand;
Parts means the parts supplied by Midas Franchisee to Customer either separately or as part of the Services;
Price means the amount payable by Customer to Midas Franchisee in respect of the Parts and/or Services provided by Midas Franchisee from time to time, being Midas Franchisee's applicable rates and/or prices at the relevant time as set out in the Repair Order, in the Midas Franchisee store or otherwise advised to Customer verbally or in writing by Midas Franchisee;
Repair Order means and includes any repair order form, invoice, document, or verbal statement issued from Midas Franchisee to Customer and accepted by Customer from time to time; and
Services means all services supplied by Midas Franchisee to Customer from time to time, as described on the Repair Order or as otherwise agreed by Midas Franchisee and Customer and includes any advice and/or recommendations.
2. Provision of parts and services
2.1 Parts and Services: In consideration of Customer paying the Price, Midas Franchisee agrees to provide Customer with the Parts and/or Services on the terms and conditions set out below.
3. Price and payment
3.1 Price: Customer will pay the Price to Midas Franchisee in full and without setoff, counterclaim or deduction on delivery of the Parts and/or completion of the Services and prior to the collection or delivery of the vehicle.
3.2 GST: The parties acknowledge and agree that, unless expressly stated otherwise, all amounts stated in and payable under this Agreement do not include any GST. All amounts so payable under this Agreement must be increased for GST if and to the extent that the supply in respect of which the amount is payable is subject to GST, and such GST will be payable at the same time and on the same basis as Customer pays the Price.
3.3 Payment: Payment will be made by cash, or by cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and one half percent (2.5%) of the Price), or by any other method as agreed to between Midas Franchisee and Customer.
3.4 Reimbursable Expenses: In addition to the Price, all expenses actually and properly incurred by Midas Franchisee in connection with the delivery and installation of the Parts and/or provision of the Services will be reimbursed by Customer to Midas Franchisee in full and without setoff, counterclaim or deduction at the same time and on the same basis as Customer pays the Price (unless specifically incorporated in the Price).
3.5 Default Interest: Without prejudice to any other rights or remedies, interest at 2% per month will be payable by Customer on any amount that is overdue for payment (including any default interest) by Customer to Midas Franchisee under this Agreement, calculated on a daily basis from the date payment is due until the date payment is received by Midas Franchisee in full. The charging of interest does not imply any extension of credit by Midas Franchisee.
4. Title and risk
4.1 Passing of Title: Title to any Parts remain with Midas Franchisee and do not pass to Customer until the Price together with all other money payable to Midas Franchisee by Customer under this Agreement have been paid to and received by Midas Franchisee in full.
4.2 Possession of Parts: Where Customer is in possession of any Parts, until such time as Midas Franchisee has received payment in full for the Parts then Customer is only a bailee of the Parts and holds any Parts or proceeds from the sale or disposal of the Parts up to and including the amount Customer owed to Midas Franchisee on trust for Midas Franchisee.
4.3 Risk: Risk of any loss of, damage or deterioration to the Parts supplied by Midas Franchisee will be borne by Customer from the time that such Parts are collected by Customer or delivered to Customer by Midas Franchisee.
4.4 Insurance: Customer will ensure that the Parts are adequately insured for full replacement value from the time that risk in the Parts passes to Customer under this Agreement.
4.5 Damage or Destruction: If the Parts are damaged or destroyed prior to title to them passing to Customer, Midas Franchisee will be entitled to receive all insurance proceeds payable in respect of such damage (whether or not the balance of the Price has become payable under this Agreement). The production of this Agreement by Midas Franchisee will be sufficient evidence of Midas Franchisee's right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with Midas Franchisee.
4.6 Application of Insurance Proceeds: Any insurance proceeds received under clause 4.5, will be applied by Midas Franchisee as follows:
(a) firstly, in payment of the Price for the damaged or destroyed Parts;
(b) secondly, in payment of any other money payable to Midas Franchisee by Customer under this Agreement; and
(c) lastly, any balance will be paid to Customer.
5. Delivery and installation
5.1 Delivery: Unless otherwise agreed in writing, Midas Franchisee will make available and/or deliver and install the Parts and/or Services to Customer at Midas Franchisee's primary trading location by the delivery date(s) (where appropriate) as specified in the Repair Order and otherwise within a reasonable time of confirmation of the Repair Order.
5.2 Delivery Dates: Notwithstanding clause 5.1 and to the maximum extent permitted by law, Customer acknowledges that:
(a) unless otherwise agreed in writing, any delivery date specified is approximate only; and
(b) under no circumstances will Midas Franchisee be liable for any costs incurred by Customer as a result of any delay in delivery (whether caused by factors beyond Midas Franchisee's control or otherwise).
5.3 Customer Acknowledgements: Customer acknowledges that:
(a) Parts and/or Services to be provided in accordance with the Repair Order are subject to availability. Should Parts not be available, Midas Franchisee may at its direction suspend all performance of its obligations under the Agreement until such time as the Parts become available or until such time as Midas Franchisee and Customer agree to vary the Parts and/or Services. Midas Franchisee reserves the right to vary the Price or supply alternative Parts of similar description;
(b) Midas Franchisee accepts no responsibility for the workmanship and quality of any third party parts and/or services to any vehicle provided and/or undertaken prior to the supply of Parts and/or Services by Midas Franchisee;
(c) Midas Franchisee, its employees, agents or contractors may test drive or carry out tests of the vehicle at Midas Franchisee's direction and may, if requested by Customer, collect or re-deliver the vehicle where nominated by Customer and Midas Franchisee will not be liable to Customer for any damage which occurs to or is caused by the vehicle during such driving, testing, collection or delivery unless it arises from the reckless or wilful conduct of Midas Franchisee; and
(d) Midas Franchisee accepts no liability for any loss or damage to any vehicle where Customer has left a vehicle with Midas Franchisee for the supply of Parts and/or Services. While the vehicle is on Midas Franchisee's premises the vehicle will be at the sole risk of Customer who must ensure the vehicle is adequately insured (including but not limited to the perils of accident, fire, theft and burglary and all other risks foreseeable or otherwise).
5.4 Delay or Refusal to Accept Delivery: Without prejudice to any other rights or remedies Midas Franchisee may have, if Customer refuses to collect, accept or unduly delays delivery and/or installation of the any Parts and/or Services upon or after the date that it first becomes available for collection, delivery and/or installation, Customer will pay to Midas Franchisee all additional costs incurred by Midas Franchisee as a result of such refusal or delay including (without limitation) any storage charges and insurance costs. Delay or default in delivery does not entitle Customer to cancel any order for Parts and/or Services.
5.5 Inspection: Customer will inspect the installation of the Parts and/or Services on completion and will notify Midas Franchisee of any alleged defect with the Parts and/or Services within 14 days. If Customer fails to advise Midas Franchisee of any defect in accordance with this clause, the Parts and/or Services will be deemed to have been provided in accordance with the terms of this Agreement.
6. Loan Vehicles (only available at select locations)
6.1 Hire/Loan: Where a Loan Vehicle is supplied to Customer the Loan Vehicle may only be driven during the period of hire/loan and is returnable at the demand of Midas Franchisee. No persons other than Customer may operate the Loan Vehicle unless otherwise agreed between Midas Franchisee and Customer. Customer and all permitted drivers must hold a valid New Zealand drivers licence and must meet Midas Franchisee's insurance requirements with respect to their ability and eligibility to drive the Loan Vehicle.
6.2 Obligations: Customer:
(a) acknowledges that they will be liable for any loss or damage to the Loan Vehicle (including but not limited to any consequential loss and resulting insurance excess) occurring in or as a result of the time the vehicle is hired or loaned by Customer. Should any insurance claim be rejected or held invalid Customer will be liable to Midas Franchisee for the full cost of repairing or replacing the Loan Vehicle (whichever is lesser);
(b) must operate the Loan Vehicle with all reasonable care and skill and must ensure the Loan Vehicle is stored securely when not in use;
(c) will not alter the Loan Vehicle in any way during the period of hire/loan;
(d) must comply with all maintenance and cleaning instructions supplied by Midas Franchisee to Customer from time to time. Midas Franchisee reserves the right to charge Customer any actual costs incurred in restoring the Loan Vehicle to the same standard before it was hired/loaned to Customer (including but not limited to the cost to clean the vehicle); and
(e) will be liable for any parking or traffic infringements or related impoundment towage and storage costs.
7.1 Midas Warranty: Midas Franchisee warrants that the Parts and/or Services will comply with Midas Franchisee's written specifications, warranties and service standards from time to time. If Customer supplies the Parts to any other person Customer must not give or make any undertaking, assertion or representation in relation to the Parts and/or Services without Midas Franchisee's prior written consent.
7.2 Third Party Warranty: In addition to the warranties contemplated by clause 7.1, Midas Franchisee will assign and pass through to Customer, or if it is unable to do so, will hold for Customer's benefit, all warranties provided by third parties in respect of any Parts and/or Services that are manufactured and/or supplied by such third parties but subject to any exclusions, conditions and/or limitations that may apply in respect of such warranties. The specific terms of any applicable third party warranties may be available from Midas Franchisee on request.
7.3 Exclusions: Customer agrees that where the Parts and/or Services are provided by Midas Franchisee, and acquired by Customer, in trade, then pursuant to section 43 of the Consumer Guarantees Act 1993, the provisions of that Act are expressly excluded and any conditions or warranties implied in this Agreement by any law are expressly excluded to the maximum extent permitted by law.
7.4 Consumer Law: Where Customer is not in trade, nothing in this Agreement is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, and all provisions of this Agreement will be read and modified to the extent necessary to give full effect to the terms of those Acts.
8.1 Force Majeure: Notwithstanding any other provision of this Agreement, non-performance by Midas Franchisee of any of its obligations under this Agreement will be excused, without liability for non-performance, during the time and to the extent that performance is prevented, wholly or substantially, by a Force Majeure Event. Performance of any obligation affected by a Force Majeure Event will be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure Event.
8.2 Parts and/or Services Liability: To the maximum extent permitted by law and subject to clauses 8.3 and 8.4, the liability of Midas Franchisee (whether in contract, equity, tort (including negligence) or otherwise) for any defect in or non-compliance of the Parts and/or Services is limited, at the option of Midas Franchisee, to either replacement or repair of such defective or non-complying items or in accordance with any express provisions of any manufacturer's warranties, to damages not exceeding the Price paid by Customer to Midas Franchisee for such defective or non-complying items.
8.3 Exclusions: To the maximum extent permitted by law and notwithstanding any other provision of this Agreement, under no circumstances will the measure of damages against Midas Franchisee for any breach of this Agreement, equity, tort (including negligence), or other action or contravention of any statute, include special, incidental, consequential or indirect loss or any consequential economic damage, nor will Midas Franchisee be liable for:
(a) any breach to the extent that such breach is attributable to the prior default, negligence, misconduct or breach by Customer; or
(b) damage or loss resulting from a Force Majeure Event.
8.4 Indemnity: Customer hereby indemnifies and holds harmless Midas Franchisee, its employees, agents and contractors from and against any and all claims, liabilities, loss or expenses asserted against or incurred by any or all of them arising in whole or in part, out of or by reason of the:
(a) failure by Customer to follow instructions, warnings or recommendations furnished by Midas Franchisee, its employees, agents or contractors in connection with the Parts and/or Services; or
(b) breach of this Agreement by Customer or negligence of Customer.
9.1 Remedies: To the maximum extent permitted by law, if an Event of Default occurs, payment of any money owing by Customer to Midas Franchisee under this Agreement will immediately become due and payable and Midas Franchisee may:
(a) suspend performance of any or all of its obligations under this Agreement;
(b) enforce its security interest under this Agreement;
(c) appoint a receiver (without Customer's consent) in respect of any Parts and such receiver will be authorised to do anything referred to in this Agreement and otherwise to exercise all rights and powers conferred on a receiver by law; and/or
(d) enter any property where the Parts may be and take possession of and remove such Parts without being responsible for any damage caused and all costs or expenses incurred by Midas Franchisee as a result of any such action will be payable by Customer upon demand.
9.2 Right of Resale: Midas Franchisee may resell any Parts removed under clause 9.1(d) and apply the proceeds in or towards payment of any monies payable to Midas Franchisee by Customer whether under this Agreement.
10. Personal Properties Security Act 1999
10.1 Security Agreement: Without limiting any other provisions of this Agreement, Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 1999 (the PPSA), which provides for a security interest in Midas Franchisee's favour in respect of any Parts (other than in respect of any Parts paid for in full by Customer) provided by Midas Franchisee to Customer, and all Customer's present and future rights in relation to such Parts, to secure the payment by Customer to Midas Franchisee of the Price payable in respect of such Parts and all other amounts payable under this Agreement.
10.2 Further Assurances: On request by Midas Franchisee, Customer will promptly do all things (including signing any documents) and provide all information necessary to enable Midas Franchisee to perfect and maintain the perfection of any security interest Customer grants to Midas Franchisee (including by registration of a financing statement).
10.3 Contract Out: To the maximum extent permitted by law, Customer:
(a) agrees that nothing in sections 114(1)(a) (to receive notice of sale of goods), 116 (to receive a statement of account), 117(1)(c) (to receive any surplus), 119 (to recover any surplus), 120(2) (to receive notice of proposal to take goods), 133 (to reinstate security agreement) and 134 (limit on reinstatement) of the PPSA will apply to this Agreement or the security under this Agreement;
(b) waives all its rights under sections 121 (to object to proposal), 125 (damage to goods on removing accession), 129 (notice of removal of accession), 131 (court order preventing removal or accession) and 132 (redemption of collateral) of the PPSA; and
(c) waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest created by this Agreement.
11. Privacy Act 1993
11.1 Collection and Use: Customer authorises Midas Franchisee or Midas Franchisee's agent to:
(a) access, collect, retain and use any information about Customer for the purpose of assessing Customer's creditworthiness or for the purpose of marketing products and services to Customer; and
(b) disclose information about Customer, whether collected by Midas Franchisee from Customer directly or obtained by Midas Franchisee from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by Customer.
11.2 Copy: Customer has the right to request a copy of the information about Customer retained by Midas Franchisee and the right to request Midas Franchisee to correct any incorrect information about Customer held by Midas Franchisee.
12.1 Customer Assignment: Customer may not assign or otherwise transfer all or any of its rights and obligations under this Agreement without the prior written approval of Midas Franchisee.
12.2 Midas Group: Customer acknowledges and agrees that any obligation of Midas Franchisee under this Agreement may be satisfied or met by another member of the Midas Group or subcontractor of Midas Franchisee, provided that Midas Franchisee will remain solely liable to Customer for all acts and omissions of any such member of the Midas Group in respect of any matter undertaken by that member of the Midas Group or subcontractor on its behalf under this Agreement.
12.3 Entire Agreement: To the maximum extent permitted by law, this Agreement (including any Repair Order) and any other written policy documentation supplied by Midas Franchisee to Customer from time to time constitute the entire understanding and agreement of the parties relating to the matters contemplated by such documents and supersedes and extinguishes all prior agreements, arrangements, understandings or representations between the parties relating to such matters.
12.4 Variations: Any requirement for Parts and/or Services that is not expressly included in the Repair Order will be variations to the Repair Order. Midas Franchisee will not be obliged to carry out any variation unless agreed by Midas Franchisee and Midas Franchisee's terms and conditions for carrying out the variation are accepted in writing by Customer. Customer will be liable for any costs incurred by Midas Franchisee as a consequence of any amendment, variation to or cancellation of a Repair Order and/or this Agreement.
12.5 Waiver: No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by either party in respect of any breach of the other party’s obligations under this Agreement is to:
(a) operate as a waiver or prevent the subsequent enforcement of that obligation; or
(b) be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.
12.6 Severance: To the maximum extent permitted by law, any unlawful or voidable provision in this Agreement will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from this Agreement without affecting the validity, legality or enforceability of the remaining provisions, provided that the reading down or severing does not materially affect the purpose of or frustrate this Agreement.
12.7 Privity: The parties acknowledge and agree that the provisions of this Agreement confer a benefit on and are intended to be enforceable by Midas Franchisee and any other member of the Midas Group for all purposes (including the Contracts (Privity) Act 1982).
12.8 Governing Law: This Agreement is governed by and will be construed in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.