Terms and conditions

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Terms and conditions of sale as at August 2006

TTSL supplies all present and after acquired goods as described in the attached Schedule (the “Goods”) to you as the customer (“Customer”) subject to the following terms and conditions of sale which shall prevail despite any indication to the contrary by any person acting or purporting to act on TTSL’s behalf.

Where used in these terms and conditions, the expression “Consumer” means a consumer as defined in Section 2 of the Consumer Guarantees Act 1993 (“CGA”) but does not include a customer, who, by clause 9 of these terms and conditions, has contracted out of the CGA.

1 Acceptance

1.1 The placing by a Customer of an order will be deemed to be an acceptance by the Customer of these terms and conditions, notwithstanding anything that may be stated to the contrary on the Customer’s order.

2 Price

2.1 Prices are subject to change without notice. All orders will be filled at prices prevailing at the date of delivery of the Goods or services and the Customer is to pay the prices charged.
2.2 If Goods and Services Tax (“GST”) or other taxes are payable on Goods or services supplied or on any amount payable under clause 6, the Customer shall pay such tax in addition to any other amount due under these terms and conditions.
2.3 All prices are exclusive of freight costs, insurance charged and installation and maintenance costs, which must be paid by the Customer unless otherwise agreed by TTSL and the Customer in writing.

3 Terms of Payment

3.1 Payment is due in cash at the time of placement of the order for the Goods (unless other payment terms have been arranged).
3.2 Payment of all monies will be without set-off or deduction of any kind other than to the extent the Customer is a Consumer and is entitled to exercise any remedies pursuant to the CGA.
3.3 Subject to clause 6.5, payments by the Customer will be apportioned by TTSL to outstanding accounts in such amounts and in such order as TTSL may determine in its sole discretion and specifies to the Customer. Until TTSL specifies its application of any monies received, they shall be held unallocated and in suspense and no amounts due in respect of any Goods or services or any invoice shall be reduced, or deemed reduced until monies have been expressly applied by TTSL.

4 Trade Terms

4.1 Trade terms are available to approved Customers upon application and the written approval of an account by TTSL.
4.2 Where Goods are sold on trade terms, payment is due on the 20th of the month following the date of TTSL’s invoice with the exception of any amount pursuant to which a claim has been notified in accordance with clauses 5.4 or 12.

5 Delivery

5.1 TTSL shall not be liable for any loss or damage to the Goods during transportation even though such loss or damage may be caused by TTSL’s negligence or other default provided that this clause shall not prevent a Customer who is a Consumer from exercising any remedies that Customer may have under the CGA.
5.2 Dates given for shipment or delivery of Goods are stated in good faith but are not to be treated as a condition of the sale of those Goods. If delivery of the Goods is delayed for any reason whatsoever, TTSL shall not be responsible or liable in any way to the Customer or any other party for loss sustained due to such delay.
5.3 Where the Customer does not take delivery of the Goods by the delivery date specified or such later date as the parties agree, the Customer shall pay reasonable storage costs until such time as the Customer accepts the Goods, such cost to be determined by TTSL, and the Vendor shall be entitled to invoice the Customer in accordance with these terms and conditions.
5.4 Where there is a discrepancy in Goods supplied by TTSL to the Customer, the Customer must provide notice in writing to TTSL of that discrepancy within 48 hours of delivery and such notice must:
a. be accompanied by the number and date of the relevant invoices;
b. specifically identify the relevant discrepancy and to the extent practicable be accompanied by any Goods over or wrongly supplied; and c. allow TTSL to have a reasonable opportunity to investigate the claim.
5.5 Unless a notice is received by TTSL from the Customer in accordance with clause 5.4, the Customer is deemed to have accepted the order as correct. Where TTSL is satisfied as to the nature of the discrepancy it will, at TTSL’s discretion, either remedy the discrepancy or provide a credit for the relevant Goods.
5.6 Delivery by TTSL to a carrier shall be deemed to be delivery to the Customer.

6 Default

6.1 Where the Customer has breached any of these terms and conditions or if clause 6.3 applies, then without prejudice to any of its other rights, TTSL may:
a. demand immediate payment of all or any monies owing (whether or not then due);
b. suspend or terminate any trade terms offered to the Customer;
c. cancel this agreement and any other contract of supply between the parties and seek damages;
d. require security for such obligations to its full satisfaction before any further supplies are made to the Customer;
e. suspend or cancel without notice, deliveries of Goods and provision of services ordered by the Customer;
f. appoint a receiver in respect of the Goods (including the proceeds of the same) supplied to the Customer under these terms and conditions. Any receiver so appointed may take possession of the Goods and re-sell them and otherwise exercise all rights and powers conferred on a receiver by law; and/or
g. recover any Goods and/or mixed goods (referred to in clause 7.5) delivered to the Customer. The Customer agrees that TTSL may (without prejudice to any of its other rights) enter the Customer’s premises or any other place where the Goods and/or mixed goods are stored by the Customer’s servants or agents for that purpose and take possession of and sell the Goods (and the Customer grants to TTSL an irrevocable right and authority to so recover, re-enter and re-sell), provided that TTSL may only recover and re-sell for its own account sufficient Goods and/or mixed goods to satisfy all unpaid liabilities in respect of the Goods and/or mixed goods and the costs of resale and any costs under clause 6.4. If any excess is recovered by TTSL, TTSL shall account for the excess to the Customer but will not otherwise be liable in damages. TTSL can so recover, re-enter and re-sell even if TTSL does not have priority over other persons having a “security interest” (as that term is defined in the Personal Property Securities Act 1999 (the “PPSA”)) in the Goods and/or mixed goods. Sections 108, 109 and 120 of the PPSA do not apply to the extent that they are inconsistent with this clause.
6.2 Where the Customer fails to make payment within 30 days after the due date, the Customer may, at TTSL’s sole discretion (without prejudice to TTSL’s other rights or remedies under these terms and conditions) be liable to compensate TTSL by immediately making payment as liquidated damages (in addition to the amount due) of interest on the amount due from the due date until the date of actual payment at a rate equal to 1.5% per month.
6.3 The Customer will be in default of these terms and conditions, and TTSL shall be entitled to exercise any remedies provided in clause 6.1, or otherwise under these terms and conditions, in the following circumstances:
a. if the Customer becomes insolvent or is adjudicated bankrupt; or
b. if a receiver is appointed in respect of the assets of the Customer; or
c. if the Customer no longer carries on business or threatens to cease carrying on business; or
d. if an arrangement with the Customer’s creditors is made or likely to be made; or
e. if the ownership or effective control of the Customer is transferred or the nature of the Customer’s business is materially altered; or
f. if the Customer is in breach of any other contract for supply with TTSL.
6.4 The Customer shall pay all costs and expenses incurred by TTSL, including costs on a solicitor-client basis and debt collector’s costs incurred in the recovery or attempted recovery of outstanding monies and the enforcement or attempted enforcement of these terms and conditions.
6.5 Payments by the Customer shall be applied first in reduction of interest, liquidated damages and costs due pursuant to this clause 6, the balance then being in reduction of any amounts due pursuant to clauses 3 or 4.

7 Ownership and Risk

7.1 Notwithstanding that ownership in the Goods may not have passed to the Customer, risk in the Goods shall pass to the Customer when the Goods are being transported to the Customer, and the Customer shall be obliged to insure the Goods from the time of transportation until payment in full in the name of TTSL and the Customer for their respective interests.
7.2 Notwithstanding any trade terms offered to the Customer, legal and beneficial ownership of any and all Goods shall remain with TTSL, until payment in full is made for them and for all other Goods supplied by TTSL to the Customer.
7.3 Until payment is made in full by the Customer for all Goods, the Customer holds the Goods as fiduciary bailee for TTSL and will store the Goods in such a manner that they are clearly identifiable as the property of TTSL, and will keep separate records in respect of the Goods.
7.4 If the Goods are sold or otherwise disposed of by the Customer prior to payment in full, the Customer will have been deemed to have done so as agent for TTSL and the proceeds of such sale will be the property of TTSL. The Customer will hold the proceeds of such sale on trust, on account for TTSL, and keep them in a separate fund from its own money.
7.5 If any of the Goods are mixed or incorporated in other Goods (the “mixed goods”) before payment, the Customer agrees that the property in the mixed goods shall be and remain with TTSL until such payment has been made in full. The Customer shall hold the mixed goods as fiduciary bailee for TTSL and will store the mixed goods in such a manner that they are clearly identifiable as the property of TTSL and will keep separate records in respect of the same. If the Customer sells the mixed goods it will hold the proceeds of such sale on trust for TTSL and will account to TTSL for the value of the Goods and keep the proceeds in a fund separate from its
own money and will keep separate records in respect of such money.

8 Credits

8.1 Subject to clause 5.5, credits sought for returned Goods are at TTSL’s sole discretion. For TTSL to consider granting a credit, the relevant Goods must be:
a. returned within seven 7 days of receipt;
b. returned free into TTSL’s store, all transportation charges, insurance, taxes, duties and additional charges being borne by the Customer;
c. in as new condition in TTSL’s original containers or packaging, unsoiled and undamaged; and
d. accompanied by the number and date of supplying invoice.

9 Supply for Business Purpose

9.1 Where these terms and conditions would otherwise be subject to the provisions of the CGA, and where the supply of Goods is a supply for business purposes, the Customer agrees that the Goods are supplied to the Customer for business purposes in terms of sections 2 and 43 of the CGA and that the provisions of the CGA do not apply to the supply to the Customer. Accordingly, such a Customer is not a Consumer for the purpose of these terms and conditions.

10 Warranties and Conditions

10.1 This clause 10 shall apply where the Customer is not a Consumer.
10.2 Except as provided in any express written warranty given by TTSL, no warranty or condition shall be implied against TTSL by any statute, at common law or otherwise and no representation, express condition, warranty or variation of these terms and conditions shall be binding on TTSL unless it is in writing and signed by TTSL.
10.3 Where the Goods or any of them are subject to any express written warranty given by TTSL to remedy any defect by repairing or replacing the Goods with Goods of identical type, then the ultimate consumer shall not be able to exercise its remedies set out in the CGA without first giving TTSL a reasonable opportunity to remedy the defect by repair or replacement in accordance with its express written warranty.

11 Guarantees and Conditions

11.1 This clause 11 shall apply where the Customer is a Consumer.
11.2 Subject to the rights and remedies contained in the CGA, if, as the result of some fault on TTSL’s part, the Goods supplied are defective in that:
a. they are not of acceptable quality; or
b. they are not reasonably fit for any particular communicated purpose where the Consumer has reasonably relied on TTSL’s skill or judgement; or
c. they do not comply with the sample or demonstration model shown to the Consumer before purchase; then the Consumer must notify TTSL within seven (7) days of when such defect was discovered or ought to have been discovered and, where possible, return the
Goods to TTSL.
11.3 Where appropriate, TTSL will (at its sole discretion but subject to clause 11.4) remedy the defect by way of repair, replacement or (if necessary) refund.
11.4 Where the defect cannot be remedied or is of a substantial character (as defined in the CGA), TTSL will refund the Consumer’s money or replace the Goods, or compensate the Consumer for the amount of any reduction in value of the Goods below the price paid or payable.
11.5 With the exception of the relevant statutory warranties contained in the CGA, no warranty or condition shall be implied against TTSL by any other statute, at common law or otherwise and no representation, express condition, warranty or variation of these terms and conditions shall be binding on TTSL unless it is in writing and signed for, or on behalf of TTSL.

12 Claims

12.1 Where Goods are returned by the Customer then TTSL may, in its sole discretion, repair the Goods or make a reasonable allowance on the purchase from TTSL for replacement Goods, provided that the following conditions are met:
a. all claims must be received by TTSL within seven (7) days of delivery of the Goods;
b. all claims must be accompanied by the number and date of supplying invoices;
c. all claims must specifically identify the defect and be accompanied by the defective Goods; and
d. TTSL shall have a reasonable opportunity to investigate the claim, provided that this clause 12.1 shall not prevent a Customer who is a Consumer from exercising any remedies that Customer may have under the CGA.
12.2 Goods returned (whether to remedy a defect or otherwise) must be returned free into TTSL’s store, all transportation charges, insurance, taxes, duties and additional charges being borne by the Customer.
12.3 If claims are not received in accordance with the requirements specified in clause 12.1, the Customer shall be conclusively deemed to have accepted the Goods, and TTSL shall not incur any subsequent liability whatsoever in relation to the Goods.

13 Limitation of Liability

13.1 TTSL’s liability in any case of defect or fault, shall be limited to the purchase price of the Goods in respect of which such liability arises. TTSL shall have no further liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever and howsoever arising, provided that this clause 13.1 shall not prevent a Customer who is a Consumer from exercising any remedies that Customer may have under the CGA.
13.2 TTSL shall not be responsible for any damage whatsoever caused either to the Goods supplied or as a result of the malfunction of such Goods if:
a. the Goods are fitted by unqualified tradesmen or in an un-tradesmanlike manner; or
b. the Goods are in any way adapted to a use for which they are not specifically intended; or
c. the Goods are added to or repaired using components not recommended or approved by the manufacturer of such Goods.

14 Severability

14.1 If any of these terms and conditions is held by a Court to be ineffective by virtue of non-registration, illegality or otherwise, then such condition, or part of it, shall be severed from all other conditions without affecting the validity or enforceability of all other conditions or part of them.

15 Personal Property Securities Act 1999

15.1 The Customer grants to TTSL a security interest in all present and after acquired Goods and their proceeds.
15.2 On the request of TTSL, the Customer shall promptly make, do, execute and deliver (or cause to be made, done, executed and delivered) any documents, contracts, agreements or deeds that TTSL may require from time to time to give effect to these terms and conditions, including without limitation doing all such things as TTSL may require in order to ensure that the security interest created under these terms and conditions, constitutes a first ranking perfected security interest over the Goods and their proceeds including providing any information TTSL reasonably requires to complete a financing statement or financing change statement. The Customer
waives any right to receive a copy of the verification statement under the PPSA. The Customer will immediately notify TTSL in writing of any change in the Customer’s name.
15.3 The Customer will pay to TTSL all costs, expenses and other charges incurred, expended or payable to TTSL in relation to the protection or preservation of its security interest, recovery or attempted recovery of outstanding monies and the enforcement of these terms and conditions, or the security interest contained in these terms and conditions.

16 Certain Provisions Not To Apply

16.1 TTSL and the Customer agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.2 TTSL and the Customer also agree that the rights of the Customer as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these terms and conditions.

17 Second-hand Goods

17.1 For the purposes of section 18A(4) of the Health and Safety in Employment Act 1992, Goods that are second-hand are sold by TTSL, without any representation or warranties, as to quality, durability or fitness, and accordingly are sold “as is”.

18 Acknowledgment

18.1 The Customer acknowledges that it has received a copy of these terms and conditions and in particular that the terms contained in these terms and conditions constitute a security agreement for the purposes of the PPSA.

19 Proper Law

19.1 The law of New Zealand shall govern all contracts and the Customer hereby submits to the exclusive jurisdiction of the New Zealand courts.

Schedule
Description of Goods

All:
- Passenger Vehicle Tyres Industrial Tyres Forklift Tyres
- Truck Tyres Bus Tyres Tractor Tyres
- Agricultural Tyres Earthmover Tyres Grader Tyres
- Light Truck Tyres Retreaded Tyres Motorcycle Tyres
- Mag Wheels Four Wheel Drive (4 wd) Tyres Go-Kart Tyres
- Tread Rubber Tubes
- Air Springs Motor Vehicle products
- and accessory inventory
Any of the above and any other goods that may be described in any quote, packing slip, invoice, or any other document provided by TTSL to the Customer.