Terms and Conditions

The following general terms and conditions will apply to all goods supplied by BPW Aftermarket NZ Limited trading as Commercial Transport Spares (“the Company”) to you (“the Customer”) from time to time.

The Company and the Customer agree as follows:

1       GENERAL

1.1    The Customer acknowledges and agrees that these terms and conditions of trade (“terms”) will apply to all goods supplied by the Company from time to time and any contract of supply of goods arising between the Company and the Customer will incorporate these terms.

1.2    In the case of conflict between these terms and an order submitted by the Customer, these terms will prevail.

1.3    The Customer irrevocably authorises the Company to make any enquiries relative to the Customer’s credit or trading history, or that of the officers, shareholders or principals of the Customer which it considers necessary, and for that purpose to disclose and seek from any bank, financial institution, lender, accountant, solicitor, advisor, credit reference agency or any other person, any information including the details of the Customer’s and/or such officer’s, shareholders’ or principals’ accounts or financial affairs. The Customer requests and authorises the above parties to supply such information to the Company.

1.4    The Customer warrants that the person(s) signatures appearing on this document are duly authorised by the Customer to apply for credit and to sign this document.

1.5    Use of the Customer’s credit facility will constitute acceptance of these terms.

1.6    To the fullest extent permitted by law, the Company reserves the right at its absolute discretion to decline to accept returns on special orders and/or indents.  Where return is permitted, failure to return goods within 6 weeks of purchase date will result in a 15% re-stocking fee.

2       TERMS OF PAYMENT

2.1    Payment by the Customer must be made no later than the last day  of the calendar month following the date of invoice for the supply of goods.

2.2    The Customer is not entitled to withhold payment nor make any set-off or deduction of any kind without prior written consent from the Company.

2.3    Interest at a rate of 3% per calendar month will be payable by the Customer on any moneys outstanding under any contract from the date payment was due until the date payment in full is received in cleared funds.

2.4    The Company reserves the right to suspend all deliveries and/or credit facilities until all amounts owing are paid in full, and the Company may provide details of any overdue account to a debt collection agency, who may charge a collection fee which will be charged to the Customer and recoverable as a debt due.

2.5    If the Customer defaults in payment of any accounts and/or amounts owed to the Company or in any of its obligations under these terms or under any other agreement or contract, the Company may exercise any and all remedies afforded to a secured party by the Personal Property Securities Act 1999 (“PPSA”).

2.6    The Customer is liable and hereby indemnifies the Company in respect to all costs and expenses (including solicitor/client costs) incurred by the Company in the recovery or attempted recovery of outstanding moneys and the enforcement of these terms.

3       GOODS AND SERVICES TAX

3.1    Goods and services tax will be charged by the Company on the cost of the goods supplied or to be supplied by the Company at the rates prescribed by statute and it is accepted by the Customer as an addition to the cost of the goods unless otherwise specified.

4       RISK AND DELIVERY

4.1    The Company’s delivery records will be proof of delivery of goods of the quantity, quality and description stated therein. Goods are offered subject to availability and the Company will not be under any liability whatsoever for the consequence of any delay in completion, dispatch, or any delivery of any goods for any reason beyond their control. The Customer’s payment obligations will not be affected by any such delay.

4.2    Physical delivery of goods by the Company to the Customer constitutes delivery to the Customer. Cost of delivery and transit insurance are at the Customer’s expense unless specified to the contrary.

4.3    Risk in any goods supplied by the Company will pass to the Customer on delivery.

5       TRANSFER OF OWNERSHIP FOR GOODS PURCHASED BY THE CUSTOMER

5.1    Notwithstanding delivery, all property and title in any goods delivered by the Company will remain the sole and absolute property of the Company as the legal and equitable owner until such time as the Customer makes payment in full to the Company of all amounts owing in respect of the goods supplied by the Company in cash or cleared funds without any set-off or deduction of any kind. The delivery of the goods to the Customer under these terms creates a fiduciary relationship between the Company and the Customer in relation to the goods and the Customer will hold the goods as bailee for the Company.

5.2    Until property and title in the goods passes, the Customer will keep the goods free from any charge, lien, or other encumbrance or “security interest” as that term is defined in the PPSA.

5.3    To secure payment of all accounts and/or amounts owed by the Customer to the Company from time to time, the Customer as debtor grants a security interest to the Company in all goods previously supplied (if any) and all present and after acquired goods supplied by the Company to the Customer or for the Customer’s account. The Customer acknowledges and agrees that:

(a)     The security interest is a Purchase Money Security Interest (“PMSI”) as that term is defined in the PPSA.

(b)     The goods are collateral (as that term is defined in the PPSA) securing payment of all accounts and/or amounts owed by the Customer to the Company.

(c)      The security interest given to the Company includes a security interest in all proceeds of collateral (as those terms are defined in the PPSA).

(d)     The Customer undertakes to sign any further documents and provide any further information which the Company may reasonably require to register a financing statement or financing change statement.

(e)     So far as permitted by section 107 of the PPSA the Customer will have no rights under sections 114(1)(a), 120(2), 133 or 134 of the PPSA including the right to receive any notices. The rights of the Customer as a debtor pursuant to sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA do not apply to the security interest given by the Customer to the Company.

(f)       The Customer agrees to the Company exercising its rights under sections 109 and 120 of the PPSA concurrently and to the Company retaining all repossessed goods immediately so that the Company’s rights under section 123 of the PPSA will become effective immediately upon repossession.

(g)     The repossession and retention of goods under sections 120 to 123 will immediately extinguish any rights or any interest the Customer has in the goods.

(h)     The Company may allocate any amounts received from the Customer towards debts, charges and expenses in any priority it determines to maintain a PMSI in the goods.

(i)       The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by the Company.

(j)       The Customer undertakes not to register a financing change statement or a change demand in respect of goods without the prior written consent of the Company.

(k)      The Customer agrees, if requested, to reimburse the Company for all costs and/or expenses incurred or payable by the Company in relation to registering, maintaining or releasing any financing statement in respect of any security interest under these terms and conditions.

6       UNAUTHORISED USE; INSTALLATION OR REPAIR

6.1    The Company will not be liable for any damage caused by malfunction of the goods or their incompatibility with Customer’s systems where this is a result of installation by unqualified trade persons or substandard installation; or by any addition to, modification, or change in location of the goods; or use of the goods otherwise than in accordance with manufacturer’s instructions.

7       MISCELLANEOUS

7.1    The Customer will give the Company not less than 14 days prior written notice of any proposed change in name of the Customer and/or any other change in the Customer’s details including but not limited to changes in address, facsimile number, trading name, registered name or where an individual, an individual’s name whether by marriage, deed poll or otherwise.

7.2    The Customer acknowledges that the supply of goods by the Company is for business purposes and that the supply of goods is not primarily for personal, domestic or household use. The Customer therefore acknowledges that the provisions of the Credit Contracts and Consumer Finance Act 2003 and the Customer Guarantees Act 1993 will not apply and the Company can give no warranty that the goods are suitable for the purpose for which the Customer proposes to use them. All terms, conditions and warranties (whether express or implied) whether by the Company and/or its agents or employees, statute or otherwise (other than those mandatory warranties in the Fair Trading Act 1986 and Sale of Goods Act 1908 or other similar legislation) are expressly excluded.

7.3    Dimension, specifications and descriptions contained or referred to in any contract, agreement or in any catalogues or other publications maintained or issued by the Company are estimates only. Unless otherwise expressly agreed in writing, it is not a condition of any contract or agreement that goods will correspond precisely with such dimensions and specifications and customary tolerances, or in the absence of customary tolerances, reasonable tolerance will be allowed.

7.4    The sole liability of the Company and the exclusive remedy for the Customer arising out of the supply of goods or their use, whether arising under contract, tort (including negligence), strict liability or otherwise will be the modification, adjustment, repair or replacement of the goods or a credit to the Customer’s account for the cost of the supply of goods, such remedy to be at the Company’s absolute discretion. In any case the liability of the Company in such matters will not in aggregate exceed the price of the goods supplied in respect of which the liability is claimed.

7.5    The Customer indemnifies the Company against any loss incurred by the Company which results from a breach by the Customer of these terms.

7.6    The Company reserves the right to amend or vary these terms at any time and such variations will take effect from the date notice of such variation(s) is given to the Customer.

7.7    The Company will have the right to terminate all credit facilities at any time on giving 3 working days notice in writing to the Customer but such termination will be without prejudice to any rights of the Company up to and including the date of termination against the Customer which may have accrued to the date of termination and such termination will not release the Customer from any accounts and/or amounts owed as at the date of termination.

7.8    The Customer may not assign all or any or its rights or obligations under any contract without the prior written consent of the Company. A change in ownership or control whether direct or indirect is an assignment for the purposes of this clause.

8       DEFAULT

8.1    The Company and the Customer agree that each of the following events amounts to default by the Customer of these terms:

(a)     if the Customer fails to make payment of any amounts owing under these terms or under any other agreement;

(b)     if the Customer fails to perform or observe any of its obligations under these terms or under any other agreement;

(c)      if the Customer will have execution issued against the Customer’s property under a judgment in any Court;

(d)     if the Customer will have distress levied against the Customer’s property;

(e)     if the Customer has made any false, inaccurate or misleading statement to the Company with regard to the entering into this contract by the parties;

(f)       if the Customer becomes bankrupt or if the Customer makes an assignment to or composition with the Customer’s creditors, or, if the Customer is a corporate body and a resolution is passed or a petition filed for the winding up of the Customer other than for the purpose of reconstruction or amalgamation or if the Customer becomes subject to the appointment of a receiver.

8.2    If an event of default occurs the Company may immediately, or at any time thereafter, without giving any notice to the Customer enter upon any land or premises where the goods may be situated and:

(a)     retake possession of the goods; and

(b)     terminate this agreement; but

without releasing the Customer from any liability in respect of any breach or non-observance of any of the provisions contained or implied in these terms or under any other agreement and without prejudice to:

(c)      the Company’s right to retain all money paid to the Company pursuant to these terms; and

(d)     the Company’s right to claim damages.

8.3    If any of the goods recovered have been damaged or have sustained a loss (determined by future sale by the Company or otherwise) the Company will be entitled to be compensated by the Customer for any loss of value or damage for such amount and such loss will be recoverable from the Customer as a debt due.

8.4    If any of the goods supplied by the Company, or goods with which they are incorporated, have been resold before payment is made, the Customer will hold the sale proceeds for and on account of the Company and to the Company’s order for the full payment and discharge of all amounts then or earlier owing by the Customer to the Company and the Customer will ensure that such proceeds are not mingled with any moneys so that they will at all times be identifiable as moneys belonging to the Company.