​1. INTERPRETATION

 

Definitions: In this General Terms.

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Business Day: Monday to Friday, other than any public holiday within the meaning of section 44 of the Holidays Act 2003 that occurs in Taupo.

 

Claim: Any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.

 

Client: The client identified in the Proposal.

 

Commencement Date: The commencement date identified in the Proposal or such other date agreed by the parties in writing.

 

Confidential Information: Has the meaning set out in clause 8.1.

 

Data:

• any information, data and content disclosed or provided by the Client and the Participants (which may include Personal Information) in order to partake in the Fleet Driver Training Programme or whilst participating in the Fleet Driver Training Programme; and

• Evaluation Results. 

 

Delay Costs: reasonable costs and expenses incurred by AutoSense in connection with a Delay Event including staff costs and any applicable third party costs. 

 

Delay Event: has the meaning set out in clause 4.10.

 

Evaluation Results: Reports generated by AutoSense via the Fleet Driver Training Programme which assesses the Participant’s driving skill and competency.

 

General Terms: This general terms, including the Schedules attached to it.

 

GST: Goods and services tax arising pursuant to the Goods and Services Tax Act 1985.

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Initial Term: 36 months from the Commencement Date.

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Insolvent: In relation to an entity:

• the entity becomes unable to pay its debts when they fall due;

• the entity ceases or threatens to cease to carry on the whole or part of its business;

• any distress or execution is levied upon any of the entity's property or assets;

• the entity makes or offers to make any voluntary arrangement or composition with its creditors;

• any resolution to wind up the entity (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) shall be passed, any petition to wind up the entity shall be presented and not withdrawn or dismissed within seven days or an order is made for the winding up of the entity;

• the entity is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it;

• a receiver or administrative receiver is appointed over all or any of the entity’s property or assets;

• any bankruptcy petition is presented or a bankruptcy order is made against the entity;

• an application is made for a debt relief order, or a debt relief order is made in relation to the entity;

• the entity is dissolved or otherwise ceases to exist; or

• the equivalent of any of the events described in (a) to (j) occurs in relation to such other party under the laws of any jurisdiction.

 

Intellectual Property Rights: All vested and future rights of copyright and related rights, design rights, database rights, patents, rights to inventions, trademarks and get up (and goodwill attaching to those trademarks and that get up), domain names, applications for and the right to apply for any of the above, moral rights, goodwill (and the right to sue for passing off and unfair competition), rights in know-how, rights in confidential information, rights in trade secrets, rights in computer software and semiconductor topographies, and any other intellectual or industrial property rights or equivalent forms of protection, whether or not registered or capable of registration, and all renewals and extensions of such rights, whether now known or in future subsisting in any part of the world.

 

In-Vehicle Coaching: In-vehicle coaching provided by AutoSense to the Client as part of the Fleet Driver Training Programme.

 

In-Vehicle Evaluation: In-vehicle evaluation provided by AutoSense to the Client as part of the Fleet Driver Training Programme.

 

Fleet Driver Training Programme: A health and safety based driver training programme developed by AutoSense, which is more particularly described in Schedule 1.

 

Participant: Any individuals or entities who participates in the Fleet Driver Training Programme, including but not limited to the Client’s employees and contractors.

 

Personal Information: Information or an opinion about an identified individual, or an individual who is reasonably identifiable (whether true or not, and whether recorded in a material form or not) such as an individual’s name, address, signature, telephone number or email address, date of birth, bank or medical conditions.

 

Pricing: The price specified for the Fleet Driver Training Programme set out in the Proposal.

 

Programme Materials: Materials created by or on behalf of AutoSense or any of its Related Company, and provided to the Client
(including the Participants) via AutoSense in the course of providing the Fleet Driver Training Programme. 

 

Programme Software: All software developed by or on behalf of AutoSense or any of its Related Company and provided to the Client (including the Participants) via AutoSense in the course of providing the Fleet Driver Training Programme.

To avoid doubt, the Programme Software includes online modules provided by AutoSense to the Client as part of the Fleet Driver Training Programme.

 

Proposal: AutoSense Fleet Driver Training proposal to be signed by the Client.

 

Related Company: Has the meaning given in the Companies Act 1993, adapted as required to apply to any company regardless of the jurisdiction of its incorporation.

 

Specialist Skills Class: Specialist skills class provided by AutoSense to the Client as part of the Fleet Driver Training Programme including courses and training related:

• Electrical Vehicle (EV);

• Hybrid Vehicle (HV);

• Vehicle Familiarisation;

• Four Wheel Drive (FWD);

• Trailer Towing; and

• Community Discussion Groups.

 

Taxable Supplies:
Has the meaning given in accordance with the provisions of the Goods and Services Tax Act 1985.

Interpretation:

• a reference to:

  • a clause is to a clause in this General Terms;

  • a person includes a body corporate, an association of persons (whether corporate or not), a trust, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal personality;

  • including and similar words do not imply any limitation;

  • a statute includes references to that statute as amended or replaced from time to time;

  • a party is a reference to a party to this General Terms, and includes that party’s permitted assigns; and

  • $ or dollars are to New Zealand currency;

• the headings in this General Terms are for convenience only and have no legal effect; and

• the singular includes the plural and vice versa.

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2. PROVISION OF THE FLEET DRIVER TRAINING PROGRAMME

AutoSense agrees to provide, and the Client agreed to buy, the Fleet Driver Training Programme on the terms of this General Terms.

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3. GENERAL TERMS

By signing the Proposal, the Client agrees to be bound by the terms and conditions set out in this General Terms.

 

 

4. FEES, CHARGES AND PAYMENT

Fees: The Client must pay for the provision of the Fleet Driver Training Programme by Autosense in accordance with the Pricing. 

Payment terms:

• AutoSense must provide the Client with valid GST tax invoices;

• The Client must pay AutoSense’s invoices by the 20th date of the month following issue of such invoice; and

• The Client must pay AutoSense electronically in cleared funds without any set-off or deduction.​  ​

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Pricing Variation: The Client acknowledges and agrees that:

• the Pricing provided in this General Terms is based on certain assumptions and information available at the time of preparation (for example, the number of Participants);

• AutoSense may vary the Pricing by giving 30 calendar days’ notice to the Client; and

• if AutoSense deems that any of the Participants requires additional training under the Fleet Driver Training Programme, AutoSense may charge additional fees on the Client for the provision of additional training.

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Travel expenses: The Client must pay for all travel and accommodation expenses incurred by AutoSense in relation to the provision of the Fleet Driver Training Programme under this General Terms.

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Cancellation policy:

In-Vehicle Evaluation and In-Vehicle Coaching:

• The Client may cancel a scheduled session of an In-Vehicle Evaluation or an In-Vehicle Coaching without incurring any fees if the Client provides more than 48 hours’ notice prior to the scheduled start of the In-Vehicle Evaluation or the In-Vehicle Coaching.

• If the Client cancels a scheduled session of an In-Vehicle Evaluation or an In-Vehicle Coaching within 48 hours of the scheduled start of the In-Vehicle Evaluation or the In-Vehicle Coaching, a cancellation fee, equivalent to 50% of the Pricing prescribed to the cancelled session of the In-Vehicle Evaluation and the In-Vehicle Coaching, will be charged to the Client.

• If, AutoSense or its subcontractors have already incurred costs for travel, accommodation, and/or other disbursements upon the Client cancelling a session of an In-Vehicle Evaluation and/or an In-Vehicle Coaching, such costs must be paid by the Client.

 

Specialist Skills Class:

• The Client may cancel a scheduled Specialist Skills Class without incurring any fees if the Client provides more than 7 calendar days’ notice prior to the scheduled start of the Specialist Skills Class.  

• If the Client cancels a scheduled Specialist Skills Class within 2 to 7 calendar days of the scheduled start of the Specialist Skills Class, a cancellation fee, equivalent to 50% of the Pricing prescribed to the cancelled Specialist Skills Class, will be charged to the Client.

• If the Client cancels a scheduled Specialist Skills Class within 24 hours of the scheduled start of the Specialist Skills Class, a cancellation fee equivalent to 100% of the Pricing prescribed to the cancelled Specialist Skills Class, will be charged to the Client.

• If, AutoSense or its subcontractors have already incurred costs for travel, accommodation, and/or other disbursements upon the Client cancelling a scheduled Specialist Skill Class, such costs must be paid by the Client.

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Exclusive of GST: Unless otherwise stated, all amounts under this General Terms are exclusive of GST, which the Client must pay on Taxable Supplies.

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Overdue invoices: If any of the amounts due to be paid to AutoSense under this General Terms are overdue, without prejudice to any of its other rights or remedies, AutoSense is entitled to suspend, delay or discontinue the provision of the Fleet Driver Training Programme and/or the further performance of its obligations under or in connection with this General Terms.

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Interest: AutoSense may charge interest on overdue amounts due to be paid by the Client.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by AutoSense’s primary trading bank as at the due date (or if the AutoSense’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

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Delay costs: In the event of:

• the exercise by AutoSense of any right under this General Terms to suspend, delay or discontinue the provision of the Fleet Driver Training  Programme and/or the performance of any of its obligations under or in connection with this General Terms;

• any act, omission or default of the Client (or any of the Client's representatives) that prevents or delays AutoSense's performance of its obligations under or in connection with this General Terms or causes AutoSense to be in breach of its obligations under the General Terms; or

• any direction or instruction by the Client to suspend, delay or discontinue the provision of the Fleet Driver Training  Programme and/or the performance of any of its obligations under or in connection with this General Terms, which individually or collectively will constitute a delay event (Delay Event), then AutoSense is:

  • not responsible for failing to carry out or any delays in carrying out any of its obligations under this General Terms, to the extent to which this is caused by the Delay Event;

  • entitled to suspend, delay or discontinue the provision of the Fleet Driver Training Programme and/or the performance of any of its obligations under or in connection with this General Terms accordingly, and such action will not constitute a breach by AutoSense of this General Terms and AutoSense must have no liability to the Client in such circumstances; and

  • entitled to recover the Delay Costs from the Client.

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5. DATA AND PERSONAL INFORMATION​

 

Ownership of Data: AutoSense acknowledges that the Client will retain ownership of all Data and related Intellectual Property Rights.  The Client represents and warrants that it is the owner or authorised licensor of the Data and related Intellectual Property Rights and has the rights to grant the licence under clause 5.2.

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Authorised use of Product Data: AutoSense may analyse, use, copy or modify the Data for any commercial purpose, subject to AutoSense using commercially reasonably efforts to anonymise the Data.

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Compliance with the Privacy Act: AutoSense must comply with the Privacy Act 2020 when dealing with Personal Information.

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6. INTELLECTUAL PROPERTY RIGHTS

 

Ownership of intellectual property: The title and all Intellectual Property Rights developed by AutoSense under or in connection with this General Terms will vest absolutely and exclusively in AutoSense when it comes into existence free of any security or other proprietary interest and will at all times remain with AutoSense or the Related Company of AutoSense.

 

​Derivative works: Any Intellectual Property Rights which are derived from, or based upon, or contemplated by, any of the Programme Materials, any of the Programme Software or any Intellectual Property Rights used or embodied in the Fleet Driver Training Programme, that may be invented or developed by the Client in connection with this General Terms, are deemed to belong and accrue to and vest in AutoSense on creation.  In the event such rights do not automatically vest in AutoSense by operation of law, the Client agrees to assign all such rights to AutoSense and agrees to execute all such documents as reasonably necessary to affect such assignment.

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Licence to Use: AutoSense grants to the Client (including the Participants) a non-exclusive and non-transferable licence to use the Programme Software and the Programme Materials for the term of this General Terms.  The Client (including the Participants) must not alter, reverse engineer, disassemble, decompile or copy the Programme Software or the Programme Materials.

 

​No sub-licensing: The Client (including the Participants) must not sub-licence the Programme Software and the Programme Materials to any third party.

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Expiry of Licence: Upon termination or expiration of the General Terms:

• the license granted to the Client (including the Participants) under clause 6.3 will immediately and automatically terminate; and

• the Client (including the Participants) must deactivate and cease use of the Programme Software and the Programme Materials.

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7. LIABILITY AND EXLUSIONS​

 

Liability cap: In no event will AutoSense, its Related Companies, or their respective representatives be liable, whether in tort (including negligence), for breach of contract, under statute or otherwise however so arising, for:

• costs of substitute third party goods;

• loss of profits, revenue, contracts, anticipated savings, business, use and/or goodwill;

• special, indirect, incidental or consequential damages, whether in contract or tort, and even if AutoSense has been advised of the possibility of such damages;

• loss of or damage to data (including data recovery); and

• any Claim against the Client by any third party.

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Aggregate liability:​

• AutoSense’s aggregate liability under and in connection with the General Terms, including for all Claims, damages, losses, costs, liabilities, and injuries, whether in tort (including negligence), from breach of contract, under statute or otherwise however so arising must not exceed the aggregate fees and charges paid by the Client to AutoSense during the month immediately preceding the event which gave rise to AutoSense’s liability.  For example, if AutoSense’s breach occurred on 1 November 2023, then the AutoSense’s maximum liability to the Client must not exceed the fees paid by the Client from 1 October 2023 until 31 October 2023.

• The exclusions and limitation of liability set out in this clause 7 do not apply to:

  • the Client’s obligation to pay the fees and charges to AutoSense;

  • either party’s liability arising as a result of fraud; and

  • anything else which cannot be excluded or limited by law,

  • to which no limit applies

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Contribution: AutoSense’s liability must be reduced proportionately to the extent the Client’s acts or omissions causes or contributes to, directly or indirectly, the loss or damage for which the AutoSense is liable.

 

Limitation period: Any action by the Client against AutoSense in connection to this General Terms must be commenced within 12 months after the cause of action has accrued.

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Disclaimer: The Client acknowledges and agrees that while the Fleet Driver Training Programme is intended to help contribute to safer vehicle operation, AutoSense does not guarantee that all high risk events, unsafe driving, collisions or other events will be prevented as a result of using and participating in the Fleet Driver Training Programme.

 

Consumer Guarantees Act: The Client agrees and represents that it is acquiring the Fleet Driver Training Programme and entering the General Terms, for the purposes of trade.  The parties agree that:

• to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of Fleet Driver Training Programme or the General Terms; and 

• it is fair and reasonable that the parties are bound by this clause 7.6.

 

No implied warranties: Other than the warranties expressly set out in this General Terms, all warranties, representations, guarantees, conditions, obligations or terms (including any terms relating to satisfactory quality or fitness for a particular purpose) that may be implied or incorporated into this General Terms by statute, custom, common law or otherwise are excluded to the fullest extent permitted by law.​

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8. CONFIDENTIALITY​

 

Confidentiality: Each party must keep the General Terms and any information it received about the other party’s business (Confidential Information) confidential, and must not use or disclose that Confidential Information without the prior written consent of the other parties except to the extent that:

• disclosure is required by law;

• the relevant information is already in the public domain other than through the default of that party;

• it is reasonably required to obtain professional advice; or

• it is reasonably necessary in connection with any proposed:

  • financing of that party; or

  • sale of all or part of the business of, or the shares in, that party,

  • and the party receiving the Confidential Information has entered into confidentiality undertakings substantially the same as those set out in this clause.

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Survival: This clause 8 must survive termination or expiry of the General Terms.

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9. TERM AND TERMINATION​

 

Duration: This General Terms commences on the Commencement Date and will remain in force for the Initial Term.  Upon expiry of the Initial Term or any subsequent terms, this General Terms will automatically continue for a term of 1 year, unless either party gives written notice of termination to the other party at least 3 months prior to the expiry of the Initial Term or any subsequent terms.

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Removal of Participants: After 12 months from the Commencement Date, the Client is entitled to remove a Participant from the Fleet Driver Training Programme by giving at least 30 calendar days’ notice if the Participant is no longer employed or contracted by the Client.

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Termination for breach: Either party (First Party) may terminate this General Terms immediately by giving notice in writing to the other party (Second Party) if:

• the Second Party is or becomes, or threatens to become, Insolvent;

• the Second Party has failed to comply with an earlier written notice given by the First Party:

  • specifying the material breach of this General Terms by the Second Party; and

  • in the case of a breach which is capable of remedy, requiring that the Second Party remedy that breach within 20 Business Days after receipt of that earlier notice; or

• the Second Party has committed any material breach of this General Terms, where that breach is not reasonably capable of being remedied by the Second Party within 20 Business Days.

 

Accrued rights: Termination of this General Terms for whatever reason will be without prejudice to any rights or obligations which may have accrued and be owing prior to the effective date of such termination.

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Client’s Default: If this General Terms is terminated due to a breach by the Client, then AutoSense may immediately suspend the provision of the Fleet Driver Training Programme.  Despite termination, the Client remains liable to pay any unpaid amounts under this General Terms.

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10. FORCE MAJEURE 

 

Events of Force Majeure: Neither party will be liable to the other party for any act or omission, or for any failure to fulfil or any delay in fulfilling its obligations under this General Terms (excluding any obligation to pay money) if such act, omission, failure or delay arises from any cause reasonably beyond the control of a party including acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action after the date of this General Terms, fire, communication line failures, power failures, earthquakes or other disasters (Force Majeure). 

 

Notice: If a party becomes aware of an event of Force Majeure occurring or being likely to occur or is unable to fulfil its obligations (including fulfilling them on time) due to an event of Force Majeure that party (Affected Party) will: 

• promptly notify the other party in writing of:  

  • details of the relevant event of Force Majeure or (if it has not yet occurred) the expected event of Force Majeure; and  

  • the impact (or expected impact) of such event of Force Majeure on performance by the Affected Party of its obligations under this General Terms; and 

• use commercially reasonable endeavours to:  

  • avoid or overcome the cause of the event; 

  • perform its obligations in accordance with this General Terms; and  

  • mitigate the effect (or anticipated effect) of an event (or anticipated event) of Force Majeure. 

 

Termination: If the delay or failure by an Affected Party to perform its obligations due to an event of Force Majeure continues for a period exceeding 90 calendar days, then either party may terminate this General Terms immediately by giving written notice to the other party. 

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11. GENERAL

 

Capacity: Each of the parties warrants to the other party that it has full legal capacity and power to enter into, and to exercise its rights and perform its obligations under, this General Terms, that it is a duly incorporated corporation and that it is not Insolvent.

 

Priority: In the event of any inconsistencies between this General Terms and any other document between the parties(including the Proposal), the terms of this General Terms must prevail.

 

No partnerships: Nothing contained or implied in this General Terms constitutes a party the partner, agent, or legal representative of the other party for any purpose or creates any partnership, agency or trust, and neither party has any authority to bind the other party in any way.

 

Notices: All notices and communications given under this General Terms must be in writing and will be delivered personally, sent by post or sent by email to the address notified from time to time by the parties.

 

Time of service: Any notice given under this General Terms will be deemed to be validly given:

• in the case of delivery, when received;

• in the case of posting, on the 3rd Business Day following the date of posting; or

• if emailed, 1 hour after the email is sent unless a return email is received by the sender within that 1 hour period stating that the addressee’s email address is wrong or that the message cannot be delivered, provided that any notice received after 5 pm on a Business Day or on any day that is not a Business Day will be deemed to have been received on the next Business Day.

 

Entire General Terms: This General Terms contains all of the terms, representations and warranties made between the parties relating to the matters dealt with in this General Terms and supersedes and cancels all prior discussions and agreements covering the subject matter of this General Terms.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of this General Terms that is not expressly set out in this General Terms, and no such representation, warranty or agreement has any effect from the date of this General Terms.

 

Further assurances: The parties must each sign all further documents, pass all resolutions and do all further things as may be necessary or desirable to give effect to this General Terms.

 

Amendment: This General Terms may only be amended by agreement of the parties in writing.

 

Waiver: No exercise or failure to exercise or delay in exercising any right or remedy will constitute a waiver by that party of that or any other right or remedy available to it.

 

Assignment: The Client must not assign, novate, transfer, charge, create a trust over or otherwise deal in or otherwise transfer any of its rights or obligations under this General Terms without the prior written consent of AutoSense, which AutoSense may grant or withhold in its absolute discretion.

 

Survival: The terms, provisions, representations and warranties contained in this General Terms survives expiration and termination of the General Terms if the nature of the provision indicates that it is not designed to expire even without specific survival language.

 

Remedies cumulative: The rights and remedies provided in this General Terms are in addition to other rights and remedies given by law independently of this General Terms.

 

Costs: Except as otherwise provided in this General Terms, the parties will meet their own costs relating to the negotiation, preparation and implementation of this General Terms.

 

Partial invalidity: If any provision of this General Terms becomes invalid or unenforceable to any extent, the remainder of this

General Terms and its application will not be affected and will remain enforceable to the greatest extent permitted by law.

 

Governing law and jurisdiction: This General Terms will be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.