ABE – Driver Training Terms and Conditions
The following terms and conditions apply to the Driver Training Courses provided by or on behalf of ABE Equipment Limited (“ABE”).
“ABE Standard Terms and Conditions of Sale” means the standard terms and conditions of sale for ABE as vendor, available at https://training.abequipment.co.nz/ or on request.
“Driver Training Course” means any ABE driver training course that can be purchased through the Website for the purposes of training or accrediting Students in machinery operating skills or similar.
“Driver Training Terms and Conditions” means these terms and conditions and the ABE Standard Terms and Conditions of Sale, which are incorporated into these terms and conditions.
“Website” means the ABE training website: https://training.abequipment.co.nz/.
“Student” means any person that undertakes a Driver Training Course.
“Purchaser” means any person who purchases a Driver Training Course.
“You” or “Your” includes any Student and/or Purchaser, as applicable.
1 AGREEMENT
1.1 By enrolling in a Driver Training Course or purchasing a place on a Driving Training Course you accept these Driver Training Terms and Conditions.
1.2 In the event of any inconsistencies between these terms and conditions and the ABE Standard Terms and Conditions, the ABE Standard Terms and Conditions will apply to the extent of the conflict.
2 PAYMENT
2.1 Payment is required prior to any Student being admitted to a Driver Training Course, unless the Purchaser has an active ABE Credit Account and has supplied a valid purchase order prior to the start of the Driver Training Course. Except for any enrolments subject to ABE’s standard credit terms, a Student’s registration for a Driver Training Course will not be confirmed until payment is received in full and certification and/or qualifications may be withheld pending payment in full.
3 STUDENT REQUIREMENTS
3.1 The Purchaser must ensure that the Student:
(a) has a current full class one New Zealand driver licence when completing an NZ Driver Licence Endorsement “Forklift (F)”, “Wheels (W)”, “Tracks (T)” or “Roller (R);
(b) is competent to undertake the Driver Training Course; and
(c) meets all other entry requirements for that Driver Training Course (as specified by ABE from time to time). Please check the Website for any requirements for a particular Driver Training Course.
3.2 A Student may also require a National Student Number (NSN) issued by the New Zealand Qualifications Authority, or similar number. You must notify ABE if the Student does not have an NSN.
3.3 For certain Driver Training Courses, ABE may ask the Student to classify their experience level:
(a) Learner: No experience operating the machine the Student will be trained on.
(b) Standard: Experience operating the machine competently.
(c) Refresher: Experience operating the machine competently and has an existing and still current certification in operating the machine on the date the Driver Training Course is conducted,
and ABE may reclassify a Student’s experience as appropriate and charge the Student an additional cost relative to their experience level.
3.4 Where applicable, Students must produce a copy of any current or expired certification, issued by an appropriately registered instructor, in support of their experience level.
4 SERVICE STANDARDS
4.1 ABE will:
(a) use all reasonable skill and care in providing Driver Training Courses, and all machinery and equipment needed to undertake Driver Training Courses, in a timely and efficient manner;
(b) not be liable for any delay or non-performance in providing Driver Training Course if the delay or non-performance is attributable (directly or indirectly) to circumstances beyond its reasonable control; and
(c) not be obliged to accept any enrolment or registration of a Student.
5 DRIVER TRAINING COURSE CONDITIONS
5.1 When arriving at ABE’s premises, all Students (and persons accompanying that Student) must:
(a) sign in as a visitor to ABE’s premises and accept these Driver Training Terms and Conditions together with any health and safety or other ABE site policies;
(b) wear closed toed shoes (preferably steel cap safety boots);
(c) not wear clothing that is loose or baggy or clothing that could be easily snagged or become entangled in machinery or similar operating equipment;
(d) have any long hair tied up or tied back; and
(e) not enter ABE’s premises with flu or cold like symptoms.
5.2 If any Student (or persons accompanying that Student) does not comply with any of the conditions above then, at ABE’s sole discretion, ABE may refuse that Student’s attendance at a Driver Training Course.
5.3 No Student will be allowed to undertake a Driver Training Course where they are physically or mentally unable to safely operate the required machinery for that Driver Training Course or undertake instruction in relation to that Driver Training Course due to prescription or non-prescription drug(s), alcohol or other condition(s) which might reasonably present a risk to themselves or others.
5.4 ABE reserves the right to cancel any Driver Training Course at any time if:
(a) it is not satisfied that the Student can undertake the Driver Training Course safely; or
(b) ABE reasonably believes that the Student is likely to be a danger to themselves or others for reasons including, but not limited to:
(i) engaging in behaviour that ABE determines is reckless;
(ii) failing to comply with reasonable instructions or directions from ABE;
(iii) ABE has assessed the Student’s driving skills/competence and has deemed the Student to be unfit/unsafe to complete the Driver Training Course; or
(iv) there are signs of impairment that ABE reasonably believes are likely to impact the Student’s ability to operate the required machinery for that Driver Training Course safely.
6 SPECIFIC COURSE REQURIEMENTS
6.1 Students are not eligible to undertake any Driver Training Course that is designated as “Forklift (F)”, “Wheels (W)”, “Tracks (T)” or “Roller (R)” endorsement where any of the following apply:
(a) the Student’s driver licence is an “Alcohol Interlock” licence; or
(b) the Student’s driver licence contains special conditions stating the Student “must be accompanied by a supervisor (except moped/ATV)” (or similar special condition),
and Students are not permitted to drive any machine on a road unless they have had the requisite endorsement added to their driver licence by any NZTA affiliated agency (e.g., AA or VTNZ).
6.2 If a Student wishes to undertake a Class 2, Class 3, Class 4 or Class 5 Truck Licence Driver Training Course then, that Student must have passed the requisite truck learner licence testing prior to attending the relevant Driver Training Course and provide a physical copy of the applicable truck learner licence issued to them as evidence to ABE.
6.3 If a Student requires more than two (2) hours of practical assessment for any of the truck licence Driver Training Courses, additional charges may apply.
7 CANCELLATION, LATE ARRIVAL, RESIT
7.1 ABE will refund 50% of any pre-paid course fee (or charge a Purchaser 50% of the course fee which is not yet paid) if a Student does not attend a Driver Training Course (a “no show”) or the course enrolment or registration is cancelled less than 3 business days’ prior to the start of the applicable Driver Training Course;
7.2 Students must arrive at least 15 minutes prior to the start time of a Driver Training Course. ABE may, at its discretion, not admit to the Driver Training Course any Student who arrives later than 15 minutes prior to the start time.
7.3 If a Student fails a Driver Training Course then any re-testing will incur a fee.
7.4 ABE may cancel any Driver Training Course and rebook Students into a later Driver Training Course or, at Your option, refund any fees paid for the Driver Training Course where:
(a) there are insufficient bookings to undertake the Driver Training Course;
(b) any Driver Training Course trainer falls ill or becomes unavailable to undertake and provide a Driver Training Course; or
(c) adverse weather or similar conditions beyond ABE’s control preclude ABE from undertaking and providing a Driver Training Course.
7.5 The Driver Training Course schedule on the Website is subject to change.
8 LITERACY AND NUMERACY REQUIREMENTS
8.1 All Driver Training Courses are presented in English.
8.2 For a Student to undertake a Driver Training Course Students must be able to:
(a) read training, assessment and workplace documentation that contains specialised and academic language (e.g., course study guide(s), PowerPoint presentation(s), assessment and task booklet(s), organisation policies and procedures, workplace signs and symbols and relevant legislation (where appropriate));
(b) complete forms and write short sentences;
(c) listen to and respond to spoken instructions; and
(d) participate in conversations using specialised language,
and Student’s must have English language skills that are sufficient for them to actively participate in the Driver Training Course.
8.3 For Student’s who do not have English as their first language, the level of English language skills required to undertake a Driver Training Course is equivalent to an International English Language Testing System (IELTS) score of 5.0 (general training) or equivalent. ABE may require evidence of a Student’s English language skills at ABE’s discretion.
8.4 A Student may, with ABE’s prior written approval, use an interpreter service of appropriate accreditation and independence. Costs associated with requiring an interpreter are the responsibility of the Student or Purchaser.
9 PRIVACY
9.1 All personal information you provide to ABE in connection with Driver Training Courses will be held and used in accordance with ABE’s privacy policy available at: https://abequipment.co.nz/privacy . In addition to the uses specified in the privacy policy, ABE will use personal information provided to it in enrolling and attending Driver Training Courses for the purposes of:
(a) administering Driver Training Courses for commercial vehicles, material handling and construction machinery;
(b) Sending reminder notices of expiring or expired Driver Training Course credentials or certifications.
(c) completing Forklift Operator Certificates;
(d) completing certificates which allow Students to apply for Forklift (F), Wheels (W), Tracks (T) and/or Roller (R) endorsements and other classes of licence required by NZTA affiliated agencies (e.g., AA or VTNZ) to be added to NZ driver licences; and
(e) promoting and marketing related goods and services.
9.2 ABE may share personal information with contracted trainers who undertake and provide Driver Training Courses on behalf of ABE for use for the above purposes.
10 ABE may also retain personal information relating to attendance at Driver Training Courses and endorsements and provide that information on request to persons entitled to receive that information (for example, in validating endorsements).
11 You may request access to and/or correction of your personal information held by ABE by contacting ABE at info@abequipment.co.nz or 0800 30 30 90, or AB Equipment PO Box 23151 Hunters Corner, Manukau, 2155.
12 LIMITATION OF LIABILITY
12.1 No party will have any liability to the other for any indirect, consequential or special loss suffered or incurred as a direct or indirect result of a breach by the first party of any of its obligations under these Driver Training Terms and Conditions or for any loss of revenue, opportunity or goodwill, in each case whether direct, indirect or consequential. No party will have any liability to the other party to the extent the other party’s losses arise from the act or omission by the other party.
12.2 Except for liability under the indemnity below, the maximum aggregate liability of ABE or You under or in connection with these Driver Training Terms and Conditions will be limited to the value of the relevant Driver Training Course to which any claim relates.
13 INDEMNITY
13.1 You will keep ABE, ABE’s officers, employees, agents, subsidiaries and affiliates protected against any third party claims made against ABE, its subsidiaries, affiliates and representatives arising in connection with Your deliberate failure to comply with these Driver Training Terms and Conditions.
14 INTELLECTUAL PROPERTY
14.1 ABE owns all proprietary and intellectual property rights in the Website, Driver Training Course booking service, communications, Driver Training Course and related training material (including text, content, graphics, logos, icons, images, audio clips, site designs) and the software and architecture forming ABE’s products, services and Website. You may not without ABE’s prior written permission, in any form or by any means copy, reproduce, adapt, display, distribute or create derivative works from any part of the Website; or commercialise, copy, or on-sell any information, or items obtained from any part of the Website.
15 DISCLAIMER
15.1 Every effort is made to ensure that the information contained on the Website, ABE’s Driver Training Course booking service and in the Driver Training Course material and communications is accurate, correct and reliable to the best of ABE’s knowledge. Nothing on the Website constitutes, or is meant to constitute, advice of any kind.
15.2 To the maximum extent permitted by law, ABE makes no representations or warranties, either express or implied, as to the accuracy of the information on the Website or its fitness for any purpose whatsoever, or that the Website, ABE’S Driver Training Course booking service or communications will be uninterrupted, error-free, free from viruses or other harmful elements.
16 GENERAL
16.1 A waiver of any provision of these Driver Training Terms and Conditions will not be effective unless given in writing, and then it will be effective only to the extent that it is expressly stated to be given. A failure, delay or indulgence by any party in exercising any power or right will not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right will not preclude further exercises of that power or right or the exercise of any other power or right
16.2 ABE may vary these Driver Training Terms and Conditions by putting the varied terms on the Website. Any Driver Training Course purchased after the date the varied terms are published on the Website will be subject to the varied terms and the purchase of any such Driver Training Course after that date shall be an acceptance of such varied terms.
16.3 You agree not to disrupt, modify or interfere with the Website, software, hardware and servers in any way. You also agree not to modify any information on the Website nor use the Website in any inappropriate or unlawful way.
16.4 These Driver Training Terms and Conditions are governed by and are to be construed in accordance with New Zealand law. You and ABE irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of New Zealand in relation to all disputes arising out of or in connection with these Driver Training Terms and Conditions.
AGREEMENT FOR TERMS AND CONDITIONS OF SALE BETWEEN AB EQUIPMENT LTD (“the Vendor”) and the Purchaser
BACKGROUND
The Vendor supplies all goods (the “Goods”) and services (the “Services”) to the Purchaser despite anything that may be stated to the contrary in the Purchaser’s enquiries or on the Purchaser’s orders, subject to the following conditions.
1. APPLICATION
1.1. The terms in this Agreement apply to all offers, quotations and agreements entered into between the Vendor and the Purchaser for the supply of Goods and Services from the date of this Agreement. This Agreement together with any credit application offers quotations and agreements shall form a contract (‘Contract’)
1.2. The placement of an order shall be deemed to be acceptance of these terms by the Purchaser.
1.3. A Contract is deemed to be formed when the Vendor notifies the Purchaser of its acceptance of an order. The Purchaser cannot cancel an order once this has been accepted by the Vendor.
1.4. In the case of any conflict arising between these terms and any other terms of the Purchaser, these terms shall prevail.
2. NON-CONTRACTUAL TERMS
2.1. All performance figures are based on estimates only and the description of the Goods in the Contract and in all drawings, specifications, brochures, catalogues and other information supplied is given as an aid to identification or description of Goods or Services and is not a condition that the Goods or Services shall correspond precisely with any such description.
2.2. The Purchaser agrees that it has not relied on any representations, statements, warranties, conditions or agreements by the Vendor that conflict with this Agreement.
2.3. All advice and information provided by the Vendor to the Purchaser is given gratuitously and without liability. The Purchaser must satisfy itself that the Goods or Services are suitable for the Purchaser’s intended use and fit for the Purchaser’s intended purpose.
3. PRICE
3.1. All prices are quoted on prevailing rates. Any increase in costs to the Vendor for Goods whenever and howsoever arising shall be payable by the Purchaser.
3.2. Where applicable Goods & Services Tax shall be charged and payable in addition to the quoted price.
3.3. Quotations remain open for acceptance for a period of 30 days. Any quotation may be withdrawn by the Vendor at any time before acceptance by the Purchaser.
3.4. Any deposit required by the Vendor will be paid immediately by the Purchaser upon the making of an order and, unless otherwise specified on the deposit terms, is non-refundable.
4. PAYMENT
4.1. Payment of the price and any price increase shall be made in full without deduction, set off or counterclaim as follows:
i) Immediately upon delivery of any machine.
ii) On the 20th of the month following invoicing for parts and services.
iii) At the point of sale in respect of all cash sales of Goods and Services
4.2. The Vendor may charge interest at the rate of 18% per annum (calculated daily) in respect of any overdue account up to and including the date of payment (both prior to and following any judgment obtained) together with all associated costs incurred in recovering payment.
4.3. The Vendor will apportion payments by the Purchaser to outstanding accounts in such amounts and in such order as the Vendor may determine in its sole discretion.
4.4. The Vendor grants credit to the Purchaser in its absolute discretion and may, without prior notification to the Purchaser, review, limit, vary or withdraw credit without incurring any liability to the Purchaser.
5. DELIVERY AND RISK
5.1. Delivery shall occur when the Vendor hands possession and control of the Goods to the Purchaser or to a third party for transportation. Thereafter the goods shall be at the sole risk of the Purchaser and all costs of insurance, freight and delivery shall be paid by the Purchaser PROVIDED HOWEVER that the Vendor shall be under no obligation to arrange any such insurance, freight or delivery on behalf of the Purchaser. Delivery of Goods may be made by instalments. Each instalment shall be treated as a separate contract subject to this Agreement.
6. DELAYS AND NON-DELIVERY
6.1. Delivery dates given by the Vendor for delivery of the Goods are given in good faith but are an estimate only and are not be treated as a condition of a Contract. The Vendor shall not be liable for any loss or damage suffered by the Purchaser due to the non-performance, non-delivery or delay in delivery of the Goods howsoever arising. If the Purchaser fails or refuses to accept delivery of the Goods, any liability or costs incurred by the Vendor as a result of the delay in delivery shall be paid by the Purchaser on demand.
7. PROPERTY
7.1. Notwithstanding the passing of risk, all of the Goods shall remain the sole property of the Vendor until the Purchaser has paid for the same in full together with all sums due from the Purchaser to the Vendor. Receipt by the Vendor of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the Vendor’s rights, power or remedies against the Purchaser and/or Goods. This claim and these conditions will apply to all after acquired Goods,
7.2. Until payment in full has been made for the goods and all other sums due the Vendor, the Purchaser acknowledges and agrees as follows:
7.3. The Goods are held by the Purchaser as bailee and may only be resold as the agent for and on behalf of the Vendor.
i) The Purchaser shall store the Goods separately from the Purchaser’s own Goods and any other Goods supplied by the Purchaser.
ii) The Purchaser hereby irrevocably gives the Vendor, its agents and servants leave and license without the necessity of giving any notice to enter on and into any premises occupied by the Purchaser to search for and remove any of the Goods supplied in which the Vendor has ownership without any way being liable to the Purchaser or any person or company claiming through the Purchaser. If the goods or any of them are wholly or partially attached to other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods.
iii) The Purchaser in reselling the Goods as the Vendor's agent shall not represent to any other person that it is acting for the Vendor and the Vendor will not be bound by any contract with any other person to which the Purchaser is a party. The Purchaser shall pay into a separate account the proceeds from the resale of the Goods and shall pay the full price of the Goods together with all or any outstanding indebtedness to the Vendor from this account.
iv) This clause is inserted to protect the Vendor and is intended to enable the Vendor to retake possession of the Goods, and at Vendors option to resell the Goods which it has resumed possession of, following default of the Purchaser and in the event of the receivership or insolvency of the Purchaser.
v) If one or more of the provisions of this clause 7 shall be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect.
8. DRIVER TRAINING
8.1. the Purchaser shall ensure that any person booked for training with the Vendor has the required driver’s license and meets all other entry requirements for the course (as specified by the Vendor from time to time) and is competent to undertake the training booked. The Vendor reserves the right to suspend driver training at any time if it is not satisfied that the driver can undertake the training safely or believes the driver is likely to be a danger to themselves or others. In the event driver training is cancelled the Purchaser will be reimbursed for the portion of any training fees paid which are unused.
9. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
9.1. The Purchaser grants to the Vendor a security interest in all present and after acquired Goods supplied by the Vendor to the Purchaser and all proceeds of the Goods for the purposes of the PPSA and as security for the payment for the Goods and any amount owing by the Purchaser to the Vendor from time to time.
9.2. On the request of the Vendor, the Purchaser shall promptly execute any documents and do anything else required by the Vendor give effect to this Agreement and to ensure that the security interest created under this Agreement constitutes and remains a first ranking perfected security interest over the Goods.
9.3. The Purchaser:
9.3.1. Shall notify the Vendor in writing of a change of name at least 14 days prior to the date on which the change of name becomes effective;
9.3.2. Shall provide any information the Vendor reasonably requires completing a financing statement or a financing change statement; and
9.3.3. Waives any right to receive a copy of a Verification Statement under the PPSA.
9.4. The Purchaser will pay to the Vendor all costs, expenses and other charges incurred, expended or paid by the Vendor in relation to the filing of a financing statement or a financing change statement.
9.5. The Purchaser agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to this Agreement.
9.6. The Purchaser agrees that its rights as debtor in sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall not apply to this Agreement.
10. CLAIMS
10.1. Subject to the limitations contained in these terms and conditions the Vendor warrants all the new equipment manufactured by it against faulty workmanship or materials for 30 days after delivery pursuant to 5.1 and agrees to replace or repair the same at its cost (excluding travelling costs and expenses). The Vendor will repair or replace the equipment as soon as reasonably practicable but will not be liable for any costs due to any delay in replacing or repairing such equipment.
10.2. The Vendor will not accept any claim unless the Purchaser advises the Vendor in writing within 30 days after delivery of the Goods or completion of the Services. If the Purchaser does not comply with the requirements in this clause, it will be deemed to have accepted the Goods and Services and the Vendor will not incur any liability whatsoever to the Purchaser in relation to the Goods and Services.
10.3. Proprietary articles supplied as part of the Goods are subject only to the warranty given by the makers of the articles.
10.4. The Vendor is not responsible for any damage whatsoever caused either to the Goods supplied or as a result of the malfunction of the Goods if:
10.4.1. The Goods are fitted by unqualified trades persons or are fitted in an unprofessional manner or
10.4.2. The instructions for operating the Goods have not been complied with or
10.4.3. The Goods are adapted to a use for which they are not specifically intended or
10.4.4. The Goods are added to or repaired using components not recommended or approved by the manufacturer, or
10.4.5. The Goods are improperly stored or transported, or:
10.4.6. The damage is the result of fair wear and tear, lack of lubrication, negligence dirt, misuse, neglect or accident.
10.4.6.1.1. To the fullest extent permissible by law and without restricting the limitations of liability contained elsewhere in these terms and conditions, the Vendor’s liability whether in tort (including negligence), contract or otherwise in relation to the supply of the Goods and Services and the Goods themselves is limited to the purchase price of the Goods or services in respect of which such liability arises.
10.5. The warranties contained in this clause will be effective only where the Purchaser has complied with its payment obligations and to the fullest extent permitted by law, this warranty shall be the Purchaser’s sole remedy against the Vendor.
10.6. The Purchaser indemnifies, and hold the Vendor, its employees, agents and contractors harmless, from and against any third-party claims related to the Goods and Services, unless the Purchaser demonstrates that the claim is a direct result of the negligent acts or omissions of the Vendor.
11. GENERAL WARRANTY EXCLUSIONS
11.1. To the fullest extent permitted by law, all warranties, conditions or other terms implied by law are excluded and the Vendor shall not otherwise be liable, whether under statue, regulation, by-law or at common law or otherwise for any damage loss or injury caused by any defect, failure or non-compliance of the Goods or Services of the Vendor. The Vendor shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever, nor shall the Vendor be liable for any damage or loss caused to the Purchaser’s servants, agents, customers or other persons whatsoever.
11.2. Where this Agreement would otherwise be subject to the Consumer Guarantees Act 1993, the Vendor agrees that it is acquiring the Goods and Services for business purposes and that the Consumers Guarantees Act 1993 does not apply to the supply of the Goods or Services to the Vendor.
11.3. Where the Goods and Services are being supplied by the Vendor and acquired by the Purchaser in trade, the parties agree that sections 9, 12A and 13 of the Fair-Trading Act 1986 will not apply between the parties, and that it is fair and reasonable to exclude their application.
11.4. Any Goods which are used, or second hand are sold on an as is where is basis.
11.5. Nothing in this Agreement affects or attempts to exclude in any way the Purchaser’s rights under the Consumer Guarantees Act 1993 where the Purchaser is a “consumer” for the purposes of that Act.
12. CREDITS
12.1. Any credit note, discount, rebate or allowances to the Purchaser shall be deemed to be without prejudice and shall not be effective unless all moneys owing have been paid and all obligations have been fulfilled by the Purchaser in accordance with these terms. Discounts shall not apply to sales tax, freight or other extras or auxiliaries. Credits for returned parts are at the Vendor’s discretion provided the parts:
12.1.1. are returned within 14 days of receipt
12.1.2. are returned freight free
12.1.3. are in good saleable condition in manufacturers/supplier’s original containers
12.1.4. are accompanied by number and date of supplying invoice
12.1.5. are not a procured item
13. DEFAULT
13.1. The Vendor shall be entitled to cancel all or any part of any Contract or Contracts with the Purchaser, in addition to the other remedies contained in these terms and conditions, in the following circumstances:
13.1.1. If any amounts payable by the Purchaser are overdue or
13.1.2. If the Purchaser fails to meet any obligation under this or any other contract; or obligation to the Vendor or
13.1.3. If the Purchaser becomes or is likely to become insolvent or
13.1.4. If a Receiver is appointed in respect of the assets of the Purchaser or
13.1.5. If the Purchaser no longer carries on business or threatens to cease carrying on business or
13.1.6. If an arrangement with the Purchaser’s creditors is likely to be made or
13.1.7. The Vendor in its sole opinion believes the Goods are at risk.
13.2. If the Purchaser makes default in payment or in taking delivery in time, the Vendor shall be entitled to terminate the Contract so far as it is unfulfilled, without prejudice to its right to recover all sums owing to it in respect of deliveries already made. Upon termination of the contract, the Vendor shall be entitled to dispose of the balance of the Goods contracted for and the Purchaser shall indemnify the Vendor for any loss in price incurred by its realisation against the price against which such Goods were contracted to be bought by the Purchaser. In addition to the rights contained in s109 of the PPSA, the Vendor may recover and / or resell any of the Goods and enter any premises where the Vendor believes the Goods are stored at any time without notice. If the Goods or any of them are wholly or partially attached to the other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods. The Vendor may recover and resell for its own account sufficient Goods to satisfy all unpaid liabilities and the costs of resale. If the Vendor recovers any excess, the Vendor will not be liable in damages to the Purchaser but must account to the Purchaser to the excess. The Vendor may appoint a Receiver in respect of the Goods (including the proceeds of the same) supplied to the Purchaser, under this Agreement. Any Receiver so appointed may take possession of the Goods and resell them. A Receiver has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by his or her terms of appointment) all the powers in relation to the Goods to do anything the Purchaser (or a person with absolute ownership of the Goods and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the Receiver thinks fit.
13.3. The Purchaser will pay all costs and expenses (including costs on a solicitor / client basis and debt collectors’ costs) the Vendor incurs in enforcing or attempting to enforce the Vendor’s rights under this clause. The Vendor may deduct any costs and expenses incurred from the proceeds of sale of any Goods recovered from the Purchaser.
14. CHANGES IN DESIGN
14.1. The Vendor reserves the right at any time to change the design construction on materials of the Goods but shall not be required to incorporate such changes in Goods already delivered.
15. WAIVER
15.1. All the original rights, powers, exemptions and remedies of the Vendor shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Vendor shall not be deemed to have waived any conditions unless such waiver be in writing from the Vendor and any such waiver shall apply to and operate only in the particular transaction, dealing or matter.
16. INTERPRETATION
16.1. These terms shall be given a fair, large and liberal interpretation to the fullest extent permitted by law and shall not be construed against the Vendor.
16.2. In this Agreement for terms and conditions, unless the contrary intention appears, the terms ‘default’, ‘financing statement’, ‘financing change statement’, ‘goods’, ‘proceeds’, ‘at risk’, ‘security interest’ and ‘Verification Statement’ each have the meaning given to that term in the PPSA.
17. PROPER LAW
17.1. All contracts shall be governed by the law of New Zealand and the Purchaser hereby submits to the exclusive jurisdiction of the New Zealand Courts.
18. ENTIRE AGREEMENT
18.1. This Agreement and any associated order constitute the sole understanding of the parties in relation to its subject matter and supersede all prior understandings, written or oral, which will be of no further force or effect.
19. VARIATION
19.1. The Vendor may vary this Agreement by putting the varied terms on the Vendor’s website (www.abequipment.co.nz). Goods and Services ordered after the date we notify you of the publication of the varied terms will be subject to the variation and the placing of the order shall be deemed to be an acceptance of such varied Agreement.
20. FORCE MAJEURE
20.1. The Vendor will not be in breach of any of its obligations to the Purchaser under this Agreement because of any failure on the Vendor’s part directly or indirectly due to a cause beyond its reasonable control.
21. ACKNOWLEDGEMENT
21.1. The Purchaser acknowledges that it has received a copy of this Agreement and in particular that the terms contained herein constitute a “security agreement” for the purposes of the PPSA
AGREEMENT FOR TERMS AND CONDITIONS OF SALE BETWEEN AB EQUIPMENT LTD (“the Vendor”) and the Purchaser
BACKGROUND
The Vendor supplies all goods (the “Goods”) and services (the “Services”) to the Purchaser despite anything that may be stated to the contrary in the Purchaser’s enquiries or on the Purchaser’s orders, subject to the following conditions.
22. APPLICATION
22.1. The terms in this Agreement apply to all offers, quotations and agreements entered into between the Vendor and the Purchaser for the supply of Goods and Services from the date of this Agreement. This Agreement together with any credit application offers quotations and agreements shall form a contract (‘Contract’)
22.2. The placement of an order shall be deemed to be acceptance of these terms by the Purchaser.
22.3. A Contract is deemed to be formed when the Vendor notifies the Purchaser of its acceptance of an order. The Purchaser cannot cancel an order once this has been accepted by the Vendor.
22.4. In the case of any conflict arising between these terms and any other terms of the Purchaser, these terms shall prevail.
23. NON-CONTRACTUAL TERMS
23.1. All performance figures are based on estimates only and the description of the Goods in the Contract and in all drawings, specifications, brochures, catalogues and other information supplied is given as an aid to identification or description of Goods or Services and is not a condition that the Goods or Services shall correspond precisely with any such description.
23.2. The Purchaser agrees that it has not relied on any representations, statements, warranties, conditions or agreements by the Vendor that conflict with this Agreement.
23.3. All advice and information provided by the Vendor to the Purchaser is given gratuitously and without liability. The Purchaser must satisfy itself that the Goods or Services are suitable for the Purchaser’s intended use and fit for the Purchaser’s intended purpose.
24. PRICE
24.1. All prices are quoted on prevailing rates. Any increase in costs to the Vendor for Goods whenever and howsoever arising shall be payable by the Purchaser.
24.2. Where applicable Goods & Services Tax shall be charged and payable in addition to the quoted price.
24.3. Quotations remain open for acceptance for a period of 30 days. Any quotation may be withdrawn by the Vendor at any time before acceptance by the Purchaser.
24.4. Any deposit required by the Vendor will be paid immediately by the Purchaser upon the making of an order and, unless otherwise specified on the deposit terms, is non-refundable.
25. PAYMENT
25.1. Payment of the price and any price increase shall be made in full without deduction, set off or counterclaim as follows:
iv) Immediately upon delivery of any machine.
v) On the 20th of the month following invoicing for parts and services.
vi) At the point of sale in respect of all cash sales of Goods and Services
25.2. The Vendor may charge interest at the rate of 18% per annum (calculated daily) in respect of any overdue account up to and including the date of payment (both prior to and following any judgment obtained) together with all associated costs incurred in recovering payment.
25.3. The Vendor will apportion payments by the Purchaser to outstanding accounts in such amounts and in such order as the Vendor may determine in its sole discretion.
25.4. The Vendor grants credit to the Purchaser in its absolute discretion and may, without prior notification to the Purchaser, review, limit, vary or withdraw credit without incurring any liability to the Purchaser.
26. DELIVERY AND RISK
26.1. Delivery shall occur when the Vendor hands possession and control of the Goods to the Purchaser or to a third party for transportation. Thereafter the goods shall be at the sole risk of the Purchaser and all costs of insurance, freight and delivery shall be paid by the Purchaser PROVIDED HOWEVER that the Vendor shall be under no obligation to arrange any such insurance, freight or delivery on behalf of the Purchaser. Delivery of Goods may be made by instalments. Each instalment shall be treated as a separate contract subject to this Agreement.
27. DELAYS AND NON-DELIVERY
27.1. Delivery dates given by the Vendor for delivery of the Goods are given in good faith but are an estimate only and are not be treated as a condition of a Contract. The Vendor shall not be liable for any loss or damage suffered by the Purchaser due to the non-performance, non-delivery or delay in delivery of the Goods howsoever arising. If the Purchaser fails or refuses to accept delivery of the Goods, any liability or costs incurred by the Vendor as a result of the delay in delivery shall be paid by the Purchaser on demand.
28. PROPERTY
28.1. Notwithstanding the passing of risk, all of the Goods shall remain the sole property of the Vendor until the Purchaser has paid for the same in full together with all sums due from the Purchaser to the Vendor. Receipt by the Vendor of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the Vendor’s rights, power or remedies against the Purchaser and/or Goods. This claim and these conditions will apply to all after acquired Goods,
28.2. Until payment in full has been made for the goods and all other sums due the Vendor, the Purchaser acknowledges and agrees as follows:
28.3. The Goods are held by the Purchaser as bailee and may only be resold as the agent for and on behalf of the Vendor.
vi) The Purchaser shall store the Goods separately from the Purchaser’s own Goods and any other Goods supplied by the Purchaser.
vii) The Purchaser hereby irrevocably gives the Vendor, its agents and servants leave and license without the necessity of giving any notice to enter on and into any premises occupied by the Purchaser to search for and remove any of the Goods supplied in which the Vendor has ownership without any way being liable to the Purchaser or any person or company claiming through the Purchaser. If the goods or any of them are wholly or partially attached to other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods.
viii) The Purchaser in reselling the Goods as the Vendor's agent shall not represent to any other person that it is acting for the Vendor and the Vendor will not be bound by any contract with any other person to which the Purchaser is a party. The Purchaser shall pay into a separate account the proceeds from the resale of the Goods and shall pay the full price of the Goods together with all or any outstanding indebtedness to the Vendor from this account.
ix) This clause is inserted to protect the Vendor and is intended to enable the Vendor to retake possession of the Goods, and at Vendors option to resell the Goods which it has resumed possession of, following default of the Purchaser and in the event of the receivership or insolvency of the Purchaser.
x) If one or more of the provisions of this clause 7 shall be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect.
29. DRIVER TRAINING
29.1. the Purchaser shall ensure that any person booked for training with the Vendor has the required driver’s license and meets all other entry requirements for the course (as specified by the Vendor from time to time) and is competent to undertake the training booked. The Vendor reserves the right to suspend driver training at any time if it is not satisfied that the driver can undertake the training safely or believes the driver is likely to be a danger to themselves or others. In the event driver training is cancelled the Purchaser will be reimbursed for the portion of any training fees paid which are unused.
30. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
30.1. The Purchaser grants to the Vendor a security interest in all present and after acquired Goods supplied by the Vendor to the Purchaser and all proceeds of the Goods for the purposes of the PPSA and as security for the payment for the Goods and any amount owing by the Purchaser to the Vendor from time to time.
30.2. On the request of the Vendor, the Purchaser shall promptly execute any documents and do anything else required by the Vendor give effect to this Agreement and to ensure that the security interest created under this Agreement constitutes and remains a first ranking perfected security interest over the Goods.
30.3. The Purchaser:
i) Shall notify the Vendor in writing of a change of name at least 14 days prior to the date on which the change of name becomes effective;
ii) Shall provide any information the Vendor reasonably requires completing a financing statement or a financing change statement; and
iii) Waives any right to receive a copy of a Verification Statement under the PPSA.
30.4. The Purchaser will pay to the Vendor all costs, expenses and other charges incurred, expended or paid by the Vendor in relation to the filing of a financing statement or a financing change statement.
30.5. The Purchaser agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to this Agreement.
30.6. The Purchaser agrees that its rights as debtor in sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall not apply to this Agreement.
31. CLAIMS
31.1. Subject to the limitations contained in these terms and conditions the Vendor warrants all the new equipment manufactured by it against faulty workmanship or materials for 30 days after delivery pursuant to 5.1 and agrees to replace or repair the same at its cost (excluding travelling costs and expenses). The Vendor will repair or replace the equipment as soon as reasonably practicable but will not be liable for any costs due to any delay in replacing or repairing such equipment.
31.2. The Vendor will not accept any claim unless the Purchaser advises the Vendor in writing within 30 days after delivery of the Goods or completion of the Services. If the Purchaser does not comply with the requirements in this clause, it will be deemed to have accepted the Goods and Services and the Vendor will not incur any liability whatsoever to the Purchaser in relation to the Goods and Services.
31.3. Proprietary articles supplied as part of the Goods are subject only to the warranty given by the makers of the articles.
31.4. The Vendor is not responsible for any damage whatsoever caused either to the Goods supplied or as a result of the malfunction of the Goods if:
i) The Goods are fitted by unqualified trades persons or are fitted in an unprofessional manner or
ii) The instructions for operating the Goods have not been complied with or
iii) The Goods are adapted to a use for which they are not specifically intended or
iv) The Goods are added to or repaired using components not recommended or approved by the manufacturer, or
v) The Goods are improperly stored or transported, or:
vi) The damage is the result of fair wear and tear, lack of lubrication, negligence dirt, misuse, neglect or accident.
To the fullest extent permissible by law and without restricting the limitations of liability contained elsewhere in these terms and conditions, the Vendor’s liability whether in tort (including negligence), contract or otherwise in relation to the supply of the Goods and Services and the Goods themselves is limited to the purchase price of the Goods or services in respect of which such liability arises.
31.5. The warranties contained in this clause will be effective only where the Purchaser has complied with its payment obligations and to the fullest extent permitted by law, this warranty shall be the Purchaser’s sole remedy against the Vendor.
31.6. The Purchaser indemnifies, and hold the Vendor, its employees, agents and contractors harmless, from and against any third-party claims related to the Goods and Services, unless the Purchaser demonstrates that the claim is a direct result of the negligent acts or omissions of the Vendor.
32. GENERAL WARRANTY EXCLUSIONS
32.1. To the fullest extent permitted by law, all warranties, conditions or other terms implied by law are excluded and the Vendor shall not otherwise be liable, whether under statue, regulation, by-law or at common law or otherwise for any damage loss or injury caused by any defect, failure or non-compliance of the Goods or Services of the Vendor. The Vendor shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever, nor shall the Vendor be liable for any damage or loss caused to the Purchaser’s servants, agents, customers or other persons whatsoever.
32.2. Where this Agreement would otherwise be subject to the Consumer Guarantees Act 1993, the Vendor agrees that it is acquiring the Goods and Services for business purposes and that the Consumers Guarantees Act 1993 does not apply to the supply of the Goods or Services to the Vendor.
32.3. Where the Goods and Services are being supplied by the Vendor and acquired by the Purchaser in trade, the parties agree that sections 9, 12A and 13 of the Fair-Trading Act 1986 will not apply between the parties, and that it is fair and reasonable to exclude their application.
32.4. Any Goods which are used, or second hand are sold on an as is where is basis.
32.5. Nothing in this Agreement affects or attempts to exclude in any way the Purchaser’s rights under the Consumer Guarantees Act 1993 where the Purchaser is a “consumer” for the purposes of that Act.
33. CREDITS
33.1. Any credit note, discount, rebate or allowances to the Purchaser shall be deemed to be without prejudice and shall not be effective unless all moneys owing have been paid and all obligations have been fulfilled by the Purchaser in accordance with these terms. Discounts shall not apply to sales tax, freight or other extras or auxiliaries. Credits for returned parts are at the Vendor’s discretion provided the parts:
i) are returned within 14 days of receipt
ii) are returned freight free
iii) are in good saleable condition in manufacturers/supplier’s original containers
iv) are accompanied by number and date of supplying invoice
v) are not a procured item
34. DEFAULT
34.1. The Vendor shall be entitled to cancel all or any part of any Contract or Contracts with the Purchaser, in addition to the other remedies contained in these terms and conditions, in the following circumstances:
i) If any amounts payable by the Purchaser are overdue or
ii) If the Purchaser fails to meet any obligation under this or any other contract; or obligation to the Vendor or
iii) If the Purchaser becomes or is likely to become insolvent or
iv) If a Receiver is appointed in respect of the assets of the Purchaser or
v) If the Purchaser no longer carries on business or threatens to cease carrying on business or
vi) If an arrangement with the Purchaser’s creditors is likely to be made or
vii) The Vendor in its sole opinion believes the Goods are at risk.
34.2. If the Purchaser makes default in payment or in taking delivery in time, the Vendor shall be entitled to terminate the Contract so far as it is unfulfilled, without prejudice to its right to recover all sums owing to it in respect of deliveries already made. Upon termination of the contract, the Vendor shall be entitled to dispose of the balance of the Goods contracted for and the Purchaser shall indemnify the Vendor for any loss in price incurred by its realisation against the price against which such Goods were contracted to be bought by the Purchaser. In addition to the rights contained in s109 of the PPSA, the Vendor may recover and / or resell any of the Goods and enter any premises where the Vendor believes the Goods are stored at any time without notice. If the Goods or any of them are wholly or partially attached to the other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods. The Vendor may recover and resell for its own account sufficient Goods to satisfy all unpaid liabilities and the costs of resale. If the Vendor recovers any excess, the Vendor will not be liable in damages to the Purchaser but must account to the Purchaser to the excess. The Vendor may appoint a Receiver in respect of the Goods (including the proceeds of the same) supplied to the Purchaser, under this Agreement. Any Receiver so appointed may take possession of the Goods and resell them. A Receiver has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by his or her terms of appointment) all the powers in relation to the Goods to do anything the Purchaser (or a person with absolute ownership of the Goods and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the Receiver thinks fit.
34.3. The Purchaser will pay all costs and expenses (including costs on a solicitor / client basis and debt collectors’ costs) the Vendor incurs in enforcing or attempting to enforce the Vendor’s rights under this clause. The Vendor may deduct any costs and expenses incurred from the proceeds of sale of any Goods recovered from the Purchaser.
35. CHANGES IN DESIGN
35.1. The Vendor reserves the right at any time to change the design construction on materials of the Goods but shall not be required to incorporate such changes in Goods already delivered.
36. WAIVER
36.1. All the original rights, powers, exemptions and remedies of the Vendor shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Vendor shall not be deemed to have waived any conditions unless such waiver be in writing from the Vendor and any such waiver shall apply to and operate only in the particular transaction, dealing or matter.
37. INTERPRETATION
37.1. These terms shall be given a fair, large and liberal interpretation to the fullest extent permitted by law and shall not be construed against the Vendor.
37.2. In this Agreement for terms and conditions, unless the contrary intention appears, the terms ‘default’, ‘financing statement’, ‘financing change statement’, ‘goods’, ‘proceeds’, ‘at risk’, ‘security interest’ and ‘Verification Statement’ each have the meaning given to that term in the PPSA.
38. PROPER LAW
38.1. All contracts shall be governed by the law of New Zealand and the Purchaser hereby submits to the exclusive jurisdiction of the New Zealand Courts.
39. ENTIRE AGREEMENT
39.1. This Agreement and any associated order constitute the sole understanding of the parties in relation to its subject matter and supersede all prior understandings, written or oral, which will be of no further force or effect.
40. VARIATION
40.1. The Vendor may vary this Agreement by putting the varied terms on the Vendor’s website (www.abequipment.co.nz). Goods and Services ordered after the date we notify you of the publication of the varied terms will be subject to the variation and the placing of the order shall be deemed to be an acceptance of such varied Agreement.
41. FORCE MAJEURE
41.1. The Vendor will not be in breach of any of its obligations to the Purchaser under this Agreement because of any failure on the Vendor’s part directly or indirectly due to a cause beyond its reasonable control.
42. ACKNOWLEDGEMENT
42.1. The Purchaser acknowledges that it has received a copy of this Agreement and in particular that the terms contained herein constitute a “security agreement” for the purposes of the PPSA
