Terms Of Trade | AllRoad Adventure

TOYE ENTERPRISES LIMITED(trading as AllRoad Adventure)TERMS OF TRADE

In these Terms of Trade we have used “we”, “us” and “our” to refer to Toye Enterprises Limited and “you” to refer to our customer. By agreeing to acquire goods from us you agree to these Terms to the exclusion of your terms (if any).

1. HOW WILL THE GOODS BE DELIVERED

1.1 Unless we agree otherwise, delivery will be deemed to have been completed when the Goods are made available for collection from our outwards goods loading bay.

1.2 We may charge you storage and transportation expenses if you fail or refuse to take or accept delivery or indicate to us that you will fail to do so.

1.3 We reserve the right to deliver Goods by instalments. 1.4 If we have given you a time for Delivery or installation of the Goods (or any part of them), such time is approximate only and is not deemed to be of the essence.

2. WHEN DOES TITLE PASS

2.1 We shall retain title to Goods we supply until they have been paid for in full and you have performed all your other obligations under these Terms.

2.2 Risk in all Goods passes to you when the Goods are Delivered.

2.3 You shall bear the risk of any damage to the Goods during installation carried out at your premises (except to the extent the damage has been caused by or contributed to by our negligence).

3. WHAT PRICE ARE THE GOODS

3.1 All prices are exclusive of GST and other taxes and duties, which shall be paid by you, except where recorded otherwise.

3.2 Our prices are subject to change without notice.

3.3 Unless we agree otherwise in writing, the amount you will be charged will be the price as at the date of Delivery.

3.4 If we provide a quotation to you, it is based on information available to us at that time and we may charge you more than the amount quoted if our costs (eg the cost of labour, materials, transport, tax, exchange rates or other costs) or the specifications change. Unless otherwise agreed in writing, prices are quoted exclusive of GST.

4. WHO IS RESPONSIBLE FOR PAYMENT

4.1 You must pay for Goods.

4.2 We may require you to pay for the Goods prior to Delivery being made.

4.3 You must pay for Goods by the 20th day of the month following receipt of our invoice, unless we decide otherwise.

4.4 We may require you to pay a deposit, being an advanced payment for Goods supplied before those Goods are delivered.

4.5 We are under no obligation to supply Goods to you on credit. If we grant you credit, you agree to pay our invoices by the 20th of the month following the date of the invoice.

4.6 You agree to give any further securities as we may from time to time require, in the form required by us, and to comply with all of your obligations under those securities.

4.7 We may notify you at any time that we are going to stop supplying Goods to you on credit. This shall be without prejudice to your obligation to pay amounts owing.

4.8 All payments shall be made without set-off or deduction. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and you remain liable for payment until payment is received by us.

4.9 We may apportion payments to outstanding accounts as we see fit.

5. WHAT HAPPENS IF YOU DEFAULT

5.1 You will be in Default if:

(a) you fail to pay an amount due under these Terms by the due date for payment; or

(b) you commit a breach of any of your other obligations under these Terms, the Security or the terms of any other contract you have entered into, or enter into in the future, with us or one of our related entities; or

(c) you become insolvent, are wound up, have a receiver appointed, enter into any composition or arrangement with your creditors, do any act which would render you liable to be placed in liquidation or have a receiver appointed over your property, commit an act of bankruptcy, cease to be of full legal capacity, or die;

(d) Goods that we have retained title to are at risk; or

(e) an event or a series of events (whether related or not) occurs which, in our opinion, may cause a material adverse change in your ability to meet your obligations to us.

5.2 If you are in Default then we may, at our option, do any one or more of the following:

(a) charge you default interest at 10% per annum on any late payments calculated on a daily basis from the due date until the date payment is received;

(b) require you to remedy the default in the manner and within the period that we tell you;

(d) suspend or terminate your account with us;

(e) enforce security interests created by these Terms;

(f) exercise any rights that we have under these Terms or that are available to us at law.

5.3 We may suspend or terminate your account with us at any time in our sole discretion. If your account is terminated, you must immediately pay us any amount you owe us. Termination will not affect any of our rights that have arisen before termination.

6. WHAT WARRANTIES APPLY

6.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986, and other statutes may impose warranties, conditions or obligations upon us which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms, we exclude all such imposed warranties, conditions or obligations to the extent permitted by law and exclude any warranty, condition or obligation imposed or implied under common law, equity or otherwise.

6.2 Where we choose to give you the benefit of any warranty we hold over Goods we do so in our absolute discretion.

6.3 Where you acquire goods and/or services from us for the purposes of a business:

(a) the parties acknowledge and agree that:(i) you are acquiring the goods and/or services covered by these Terms for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993;(ii) the goods and/or services are both supplied and acquired in trade for the purposes of the Fair Trading Act 1986 and the parties agree to contract out of sections 9 (Misleading and deceptive conduct generally), 12A (Unsubstantiated representations), and 13 (False or misleading representations); and

(b) you agree that all warranties, conditions, and other terms implied by the Consumer Guarantees Act 1993 or sections 9, 12A, and 13 of the Fair Trading Act 1986 are excluded from these Terms to the fullest extent permitted by law and the parties further acknowledge and agree that it is fair and reasonable that the parties are bound by this clause

7. WHAT IS OUR LIABILITY TO YOU

7.1 Except as expressly otherwise provided by in these Terms of Trade, we shall not be liable for any loss or damage or liability of any kind whatsoever (including consequential loss or lost profit or business) whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Goods or services provided by us to you.

7.2 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms or for any other reason, such liability is limited to the amount of the price of the Goods concerned. If Goods are returned by you, or if you make a claim in writing to us in relation to Goods or associated services provided, we may, in our discretion, repair or replace the Goods or re-perform the services, or refund the price of those Goods to you, provided that:

(a) the Goods must be returned or the claim must be made in writing to us within fourteen (14) days of Delivery; and

(b) you must supply the date and number of any invoice relating to the Goods; and

8. HOW WILL INTELLECTUAL PROPERTY BE PROTECTED

8.1 In respect of Intellectual Property used in or arising from the production of the Goods or the performance of any associated services:

(a) all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of these Terms (whether you or us);

(b) any new Intellectual Property will be dealt with in accordance with this clause 8

8.2 If any Goods are to be supplied to your design, you warrant that the manufacture and supply of such Goods by us will not infringe any third party's Intellectual Property rights and you indemnify us against any loss, liability, costs and expenses in the event of any claim being made that the manufacture or supply of such Goods by us infringes any patent, copyright or other rights of any other person.

8.3 Subject to clauses 8.1(a) and 8.6 we are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests in the Goods, and any other work performed by us for you, as first owner of those Intellectual Property rights and interests.

8.4 We shall retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, ideas, skills and know-how.

8.5 You must not attribute the Goods to anyone other than us or remove any of our trade marks, signatures, logos or similar from the Goods.

8.6 Upon payment of all amounts owing to us in accordance with these Terms, we assign to you the copyright in the final form of any Goods which we have specifically created for you for the countries and for the purposes as specified in the description of the work to be performed, or if not specified, for the countries and for the purposes which would be reasonably expected in light of the nature of your request for the Goods.

9. WHAT MAY BE DO WITH YOUR INFORMATION

9.1 You authorise us:

(a) to collect, retain and use information about you from any person for the purpose of assessing your creditworthiness;(

b) to disclose information about you:(i) to any person who guarantees, or who provides insurance, or who provides any other credit support, in relation to your obligations to us;(ii) to such persons as may be necessary or desirable to enable us to exercise any power or enforce or attempt to enforce any of our rights, remedies and powers under these Terms.

10. HOW WILL NOTICES BE GIVEN

10.1 Any notice may be given by phone, in person, posted, or sent by facsimile or email to you or where you are a company, to any of your directors.

11. WHAT INFORMATION IS CONFIDENTIAL

11.1 You shall at all times treat as confidential all non-public information and material received from us and shall not publish, release, or disclose the same without our prior written consent. For clarity, confidential information includes any new Intellectual Property and prices.

12. WHO WILL PAY COSTS

12.1 You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms.

13. CREDIT INFORMATION

13.1 You consent to us, or any financier or credit-rating agency, making enquiries of and obtaining any information about your financial standing and credit worthiness.

14. WHAT LAWS APPLY

14.1 These Terms are governed by the laws of New Zealand. Subject to clause 16, you may take legal action against us only in a New Zealand Court.

15. HOW WILL DISPUTES BE RESOLVED

15.1 Any claim or dispute arising under these Terms shall be determined by arbitration under the Arbitration Act 1996 if the parties are unable to resolve such dispute themselves within one (1) month of the dispute arising. However, nothing in this clause prevents either party from taking immediate steps to seek any equitable relief before the New Zealand Courts.

16. FORCE MAJEURE

16.1 We shall not be liable for delay or failure to perform our obligations under these Terms if the cause of delay or failure is beyond our reasonable control.

17. SURVIVAL

17.1 The provisions of this clause 17 of these Terms and any other provision which by its nature is intended to survive the termination or expiration of these Terms will survive the termination or expiration of these Terms or Delivery of the Goods.

18. GENERAL

18.1 These Terms replace any earlier representations, warranties, understandings and agreements (whether oral or written), and together with your Credit Application constitute the entire agreement between us and you relating to their subject matter.

18.2 You shall not transfer or assign your rights, powers or obligations under these Terms without our prior written consent.

18.3 If you have entered into these Terms as the trustee of a trust and you have no right to or interest in any of the assets of the trust except in your capability as trustee of the trust, your liability shall be limited to the value of the assets of the trust which now or in the future are (or, but for your wilful neglect or default, would be) in the hands of the trustees for the time being of the trust. This clause does not limit any liability you have to us as a personal guarantor.

18.4 No failure or delay by us in insisting upon the strict performance of these Terms or exercising any right under these Terms will operate as a waiver of those matters.

18.5 We may change these Terms at any time. Any change applies from when it is published on our website www.allroad.nz.

19. DEFINITIONS

19.1 In these Terms unless the context otherwise requires:

19.2 “Delivery” means the collection of Goods by you or one of your employees, contractors or agents from our premises, unless we have agreed to dispatch Goods for you, in which case delivery shall mean the despatch of the Goods from our premises. If you indicate to us that you will fail or refuse to take or accept delivery, then the Goods are deemed to have been delivered when we are willing to deliver them. “Default” has the meaning set out in clause 5“Goods” shall include any associated services that we supply. “Intellectual Property” means all intellectual property rights including, without limitation, copyright, patent and design rights, drawings, documents, data, ideas, procedures, calculations and all other statutory and common law rights and interests. “Security” means all existing and future security held by us that secures your obligations under these Terms.

19.3 The rule of construction known as the contra proferentem rule does not apply to these Terms.

19.4 Words importing the singular include the plural and vice versa.

19.5 Headings are for convenience only and do not form part of, or affect the interpretation of, these Terms.

19.6 References to a party include that party's successors, personal representatives, executors, administrators and permitted assigns.

19.7 References to a statute include references to:(a) regulations, orders, rules or notices made pursuant to that statute;(b) all amendments to that statute and those regulations, orders, rules or notices, whether by subsequent statute or otherwise; and (c) any statute passed in substitution of that statute.