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Application of these terms
1 These terms apply to all sale and supply of goods and services by TRS Tyre & Wheel Limited (“Seller”) and any other person or entity (the “Purchaser”). These terms will apply despite anything that may be stated to the contrary in a Purchaser’s enquiry or order and no Purchaser terms will apply to the supply of goods or services by the Seller.
2 By placing an order for goods or services from the Seller, the Purchaser accepts these terms.
Price and payment
3 Any performance figures, estimates or other forecasts are estimates only and the description of the goods in any order or any drawings, specifications, brochures, catalogues or other information supplied by the Seller is given as a guide but the Seller makes no representation that the goods supplied will correspond precisely with any such description.
4 All prices are quoted on prevailing rates which may change from time to time. Any price will not be final until the order is confirmed by the Seller.
5 Where Goods and Services Tax (“GST”) is payable on the supply of goods or services by the Seller, the GST shall be charged and payable in addition to the quoted price.
6 Any quotations given by the Seller remain open for acceptance for a period of 30 days. Any quotation may be withdrawn by the Seller at any time before acceptance by the Purchaser.
7 Payment of the total price and any other charges shall be made in full without deduction as follows:
8 The Seller may charge interest at the rate of 10% per annum (calculated daily) above the prevailing bank overdraft rate in respect of any overdue account up to and including the date of payment together with all associated costs incurred in recovering payment.
9 The Seller will apportion payments by the Purchaser to outstanding accounts in such amounts and in such order as the Seller may determine in its sole discretion.
10 Delivery shall occur when the Seller gives 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 and the Seller shall be under no obligation to arrange any such insurance, freight or delivery on behalf of the Purchaser.
11 To the maximum extent permitted by applicable law, the Seller 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 goods which arise through no fault of the Seller.
Title in goods
12 Notwithstanding the passing of risk, title in any goods shall remain the sole property of the Seller until the Purchaser has paid in full in cleared funds for the goods.
13 Until payment in full has been made for the goods the Purchaser acknowledges and agrees that:
Personal Property Securities Act 1999
14 The Purchaser acknowledges that these terms, and the supply of goods, creates a security interest (as that term is defined in the Personal Property Securities Act 1999 (PPSA)) in all present and after acquired goods supplied by the Seller to the Purchaser and all proceeds of the goods as security for the payment of the goods and any amount owing by the Purchaser to the Seller from time to time.
15 On the Seller’s request the Purchaser shall promptly execute any documents and do anything else required by the Seller to give effect to this security interest and to ensure that the security interest created under this Agreement constitutes and remains a first ranking perfected security interest over the goods. .
16 The Purchaser:
17 The Purchaser will pay to the Seller all costs, expenses and other charges incurred, expended or paid by the Seller in relation to the filing of a financing statement or financing charge amount.
18 The Purchaser agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms.
19 The Purchaser agrees that its rights as debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall not apply to these terms.
20 Nothing in these terms will derogate from or remove a Purchaser’s rights under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, where the Purchaser is a consumer for the purposes of those laws, or where the Purchaser otherwise has rights under those laws. Where the Purchaser is a consumer with rights and remedies under the Consumer Guarantees Act 1993, those rights and remedies are not removed or altered by these terms.
21 Subject to the limitations contained in these terms the Seller warrants all new equipment manufactured by it against faulty workmanship or materials for 30 days after delivery and agrees to replace or repair the same at its cost. To the extent permitted by law, this warranty is the Purchasers’ sole remedy against the Seller.
22 Third party articles or components supplied as part of the goods are subject to the warranty given by the makers of those articles or components.
23 The Seller is not responsible for any damage whatsoever caused either to the goods supplied or as a result of the malfunction of the goods if:
24 To the fullest extent permitted by law and without restricting the limitations of liability contained elsewhere in these terms, the Seller’s liability in relation to the supply of any goods or services is limited to the purchase price of the goods or services in respect of which such liability arises.
25 To the fullest extent permitted by law, the Seller disclaims any implied warranties, guarantees or representations with respect to the goods. Unless the Purchaser is a consumer under the Consumer Guarantees Act 1993, the Seller shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever, nor shall the Seller be liable for any damage or loss caused to the Purchaser’s agents, employees, customers or other persons whatsoever.
26 Where the Purchaser is acquiring the goods for business purposes and in trade the Purchaser agrees that it is fair and reasonable that:
27 Any credit note, discount, rebate or allowances to the Purchaser cannot be applied to sales tax, freight or other extras or auxiliaries. Credit for returned parts are at the Seller’s discretion provided the parts:
28 The Seller shall be entitled to cancel all or any part of any unfulfilled contract with the Purchaser, in addition to the other remedies contained in these terms, in the following circumstances:
29 Upon termination of an unfulfilled contract in accordance with these terms, the Seller shall be entitled to dispose of the balance of the goods contracted for and the Purchaser shall indemnify the Seller for any loss in price incurred by its realisation against the price against which such goods were contracted to be acquired by the Purchaser.
30 The Seller may appoint a receiver in respect of any delivered but unpaid goods (including the proceeds of the same) supplied to the Purchaser, under these terms. Any receiver so appointed may take possession of the goods and resell them and/or deal with them as if the receiver was the Seller.
31 The Purchaser will pay all costs and expenses (including costs on a solicitor / client basis and debt collectors costs) the Seller incurs in enforcing or attempting to enforce the Seller’s rights under this clause. The Seller may deduct any costs and expenses incurred from the proceeds of sale of any goods recovered from the Purchaser.
32 The Seller may change the design, construction, or materials or any other aspect of the goods from time to time but shall not be required to incorporate such changes in goods already delivered.
33 All the original rights, powers, exemptions and remedies of the Seller shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Seller shall not be deemed to have waived any conditions unless such waiver be in writing from the Seller and any such waiver shall apply to and operate only in the particular transaction, dealing or matter.
34 In these 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.
35 These terms, orders and any contracts formed between the Seller and Purchaser under these terms shall be governed by the law of New Zealand and the parties hereby submit to the exclusive jurisdiction of the New Zealand Courts.
36 The Purchaser acknowledges that it has received a copy of these terms and in particular that the terms contained herein constitute a “security agreement” for the purposes of the PPSA.
37 Custom wheel manufacturing / engineering will be covered under a waranty period of 24 months. Painting of wheels will be covered for a period of 6 months.