TERMS OF TRADE FOR TOWFLEXX LTD
1.1 “Goods” means any goods, products or deliverables supplied or provided
by us to you and includes without limitation any related or associated
services, parts, or components.
1.2 “GST” means goods and services tax as defined in the Goods and Services
Tax Act 1985.
1.3 “Intellectual Property Rights” includes copyright, and all rights conferred
under statute, common law or equity in relation to inventions (including
patents), trademarks, designs, domain names, rights in databases,
confidential information, trade secrets, tooling design, know-how,
specifications, manufacturing processes and all other proprietary rights,
whether registered or unregistered and all equivalent rights and forms of
protection anywhere in the world, together with all rights, interests or licence
in or to any of the foregoing.
1.4 “Order” means an order submitted by you to us for the purchase of Goods
and/or Services, whether by email, via our website, facsimile, in person, or
1.5 “Price” means the total amount payable by you for the Goods and Services
as determined in accordance with clause 3.1.
1.6 “Services” means any services supplied or provided by us to you.
1.7 “Terms” means these Terms and Conditions of Trade.
1.8 “we”, “us”, “our” means Towflexx Ltd, company number 7790138 and its
related companies (as that term is defined in the Companies Act 1993),
agents, successors or assigns.
1.9 “you” and “your” means the person/s or entity/ies to whom we provide
Goods and Services.
2.1 These Terms apply and are incorporated into any agreement for the supply
of Goods and Services by us to you. All other terms and conditions are
expressly excluded unless otherwise agreed in writing. If there is any
conflict between an Order and these Terms, these Terms prevail.
2.2 Our agents, employees, contractors and representatives have no authority
to make any oral representations, statements, warranties, conditions or
agreements that conflict with these Terms.
2.3 By submitting an Order, you are deemed to have accepted these Terms.
We will treat any person holding him/herself out as your agent, employee,
contractor or representative, as authorised by you to submit an Order.
2.4 A binding contract is deemed to be formed between us and you when we
notify acceptance of your Order by email, facsimile, in person, or by
telephone or otherwise act on your Order.
2.5 If you are more than one legal person or entity, then your liability is joint and
2.6 We may terminate this and/or any other agreement between us immediately
if you do not make payment of any amounts due to us on or before the due
date for payment, indicate that you will not pay any sums by the due date,
fail to comply with your obligations under these Terms, or suffer an
2.7 You authorise us to collect, retain and use any information about you for the
purpose of assessing your creditworthiness, or enforcing any rights under
this agreement. We may share your information with other agencies for
these purposes. If you are a natural person, you have the right to access
and correct information about yourself.
3.1 Unless otherwise agreed by us, the price of the Goods and Services will be
specified on acceptance of your Order. Where no Price is specified, the
Price will be the current price at which such Goods and Services are sold or
supplied by us at the time of the Order, plus all costs, expenses and
disbursements incurred by us. The Price is exclusive of GST unless
specifically stated otherwise. You will pay all applicable GST in addition to
the Price. We reserve the right to alter the Price because of circumstances
beyond our control (including, but not limited to, fluctuations in international
monetary exchange rates, shipping rates, shortages, duties and tariffs, and
3.2 The method and cost of delivery (if and where applicable) will vary
according to the delivery method chosen by you.
3.3 All costs associated with delivery including but not limited to carriage and
freight will be payable by you in addition to the Price.
3.4 If we provide you with a quote for the Goods and/or Services, the quotation
shall be valid for 31 days from the date the quote was provided to you.
However, we reserve the right to alter the quotation if exceptional
circumstances arise beyond our control.
4. DEPOSIT AND PAYMENT
4.1 Subject to clause 4.2, full payment of the Price will be required on on or
before the date the Goods are dispatched or the Services provided or as
otherwise specified on our invoice/s. The method of payment will be as
directed by us.
4.2 If a deposit is payable, the deposit must be received by the due date we
specify, and we will not order Goods or commence Services or begin work
on your behalf until such time as we receive the deposit.
4.3 Where applicable you must specify an approved delivery method, or specify
that you will collect the Goods from us personally, on the Order. If we later
agree to change the method of delivery at your request, further charges
4.4 You must pay all amounts owing to us without set-off or deduction. We may,
in our discretion, allocate any payment received from you towards any
invoice that we determine and may do so at the time of receipt or at any
4.5 Without prejudice to our other rights and remedies under these Terms or at
law, if you fail to make payment of any amount due to us, we may refuse to
supply the Goods and Services and/or charge interest on the amount owing
at the rate of 5% per month or part month from the due date for payment
until payment is received in full.
4.6 Any expenses, disbursements and legal costs incurred by us in the
enforcement of any rights contained in these Terms will be paid by you,
including our reasonable solicitors’ fees or debt collection agency fees.
5.1 Delivery of the Goods and Services will be made by us to the place and by
the method specified by you in the Order. You must specify the exact
location for delivery in the Order and provide us with access to all locations
necessary to provide the Services. If agreed in the Order, you may elect to
collect the Goods personally from our nominated address. If collection is not
made within 10 days of you being notified that the Goods are available for
collection, any payments made to us for the Goods may be retained by us
and/or the Goods may be sold or otherwise disposed of at our sole
5.2 We will use our reasonable endeavours to supply the Goods and Services
by the delivery date specified, however, we will not be liable for any costs,
losses, damages or claims in relation to any failure or delay in supply, and
you will not be able to terminate this agreement or any Order due to any
failure or delay in supply. If we are unable to supply the Goods and Services
as agreed solely due to any action or inaction of yours then we will be
entitled to charge a reasonable fee for re-supplying the Goods and Services
at a later time and date.
5.3 Risk in the Goods will pass from us to you, and delivery will be deemed to
occur, when the Goods are given to a carrier, courier, or other bailee for
purposes of transmission to you or when the Goods are available for
collection, as the case may be.
6. RETENTION OF TITLE AND PPSA
6.1 We will retain ownership of and title to all Goods until payment has been
made by you in full. In the meantime, you will ensure that all Goods are
stored in a way that clearly identifies the Goods as our property.
6.2 You acknowledge that until full payment is made for the Goods you retain
possession of them solely as our bailee. You will hold the proceeds of sale
of all Goods that have not yet been paid for in trust for us.
6.3 You agree that we, our agents or employees (on written notice) may enter
onto any premises under your ownership or control for the purpose of
inspecting and/or repossessing any Goods not paid for in full.
6.4 You hereby grant us a security interest over the Goods to secure your
obligations to us under these Terms. If you should use or make use of the
Goods in such a way that they are mixed with other goods, used up in the
process of making other goods or become an unidentifiable part of new and
different goods, we will be given ownership of such goods to secure your
obligations to us under these Terms. You acknowledge that these Terms
constitute a security agreement for the purposes of the Personal Property
Securities Act 1999 (“PPSA”) or any other similar laws in any jurisdiction
other than New Zealand, and you will provide us with any information we
require to register a financing statement pursuant to the PPSA. Both parties
contract out of sections 114(1)(a),133 and 134 of the PPSA, and you waive
any rights listed under section 107(2) of the PPSA, and any right to receive
a copy of the verification statement pursuant to section 148 of the PPSA.
7. WARRANTY AND LIABILITY
7.1 Nothing in these Terms will restrict, negate, modify or limit any of your rights
under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986
where you are not acquiring the Goods and/or Services for the purpose of a
business or in trade.
7.2 To the extent that our liability is not otherwise limited or excluded, and to the
maximum extent permitted by law, our aggregate liability to you whether in
tort, contract, at law (including for a misrepresentation) or otherwise for any
loss, damage, or injury in relation to the Goods and Services is limited to the
Price actually paid by you. In such case we may, at our option, elect to:
a. provide a refund; or
b. repair the Goods; or
c. replace the Goods or re-provide the Services.
7.3 Despite anything else contained in these Terms and to the maximum extent
permitted by law:
a. to the extent that you have approved any Goods prior to delivery, then
you will be deemed to have accepted such Goods if delivered to a
b. we will not be responsible or liable for any acts or omissions of any
c. unless otherwise agreed in writing in an Order, no claim relating to the
Goods and Services or returns will be considered unless made within
5 days of delivery of the Goods or supply of the Services and must be
accompanied by a copy of the original packing slip or invoice. We may
make a deduction to cover handling charges or for deterioration in the
original quality or appearance of the Goods;
d. no Goods will be accepted for return unless they are returned in a
resaleable undamaged condition and in the original packaging, with all
relevant instruction manuals included;
e. the parties agree and acknowledge that if the Goods and Services
supplied by us and acquired by you are supplied or acquired in trade
within the meaning of the Fair Trading Act 1986, that sections 9, 12A,
and 13 of the Fair Trading Act 1986 will not apply to the agreement
between us, and that it is fair and reasonable to exclude their
f. the parties agree and acknowledge that if they are both in trade, and
that the Goods and Services supplied by us and acquired by you are
supplied or acquired in trade, that the provisions of the Consumer
Guarantees Act 1993 will not apply to the agreement between us, and
that it is fair and reasonable to exclude their application;
g. the parties agree and acknowledge that the provisions of Part 3 of the
Contract and Commercial Law Act 2017 will not apply;
h. unless these Terms expressly provide or the parties agree otherwise
in writing (for example, pursuant to a specific warranty in relation to
the Goods or the Services), to the fullest extent permissible by law all
warranties, conditions or other terms implied by law are excluded; and
i. for the purposes of this clause, you acknowledge that you had a
reasonable opportunity to review these Terms, discuss them with us,
and receive advice from your legal advisor, if you wished to do so.
7.4 To the maximum extent permitted by law, we will not be liable for any loss
or damage of any kind whatsoever arising from the supply of Goods and
Services by us to you, including direct or consequential loss and loss of
profits, whether suffered or incurred by you or another person or entity and
whether in contract or tort (including negligence) or otherwise and
irrespective of whether such loss or damage arises directly or indirectly from
Goods and Services provided by us to you.
8. INTELLECTUAL PROPERTY
8.1 Unless otherwise agreed in writing between the parties all Intellectual
Property Rights in the Goods and Services and all new Intellectual Property
Rights that are developed, commissioned or created under or in connection
with an Order will be owned by us as such rights arise.
9.1 These Terms constitute the sole understanding of the parties in relation to
its subject matter and supersede all prior understandings, written or oral,
which will be of no further force or effect. No alteration or variation of these
Terms will be binding on us unless authorised by us in writing. To the extent
permitted by law, we may alter or change these Terms by notice to you. Any
order submitted after such notice will be deemed to constitute acceptance of
the new Terms.
9.2 You must not assign, subcontract or transfer all or any part of your rights or
obligations under these Terms (including undergoing an effective change in
your management or control) without our prior written consent. We may
assign any rights or obligations without your approval as well as subcontract
any obligations to third parties.
9.3 If any dispute arises between the parties about these Terms or the Goods
provided or the Services performed, a party must not commence legal
proceedings unless and until the party has complied with the requirements
of clause 9.4 and 9.5.
9.4 Any party claiming that there is a dispute must give notice in writing to the
other party describing the nature of the dispute and the remedy sought and
designating a representative in negotiations relating to the dispute. The
representative must be a person with authority to settle the dispute. The
parties must first seek to resolve such dispute by meeting and using good
faith, reasonable endeavours to resolve the dispute.
9.5 If the dispute remains unresolved 20 business days after notice has been
given under clause 9.4, the parties must seek a resolution through the use
of mediation. The Dispute may be referred to mediation by any party by the
delivery of written notice (“Mediation Notice”) to the other parties. The
mediation shall be conducted in accordance with the terms of the LEADR
New Zealand Inc. Standard Mediation Agreement by a mediator (and at a
fee) agreed to by the relevant parties. If the parties fail to agree on a
mediator (or on costs) within 5 Business Days following delivery of the
Mediation Notice, then the mediator will be selected and the mediator’s fee
determined by the Chair for the time being of LEADR New Zealand Inc.
The mediator will determine the procedure and timetable for the mediation
and the costs of the mediation will be shared equally between the disputing
9.6 Every notice given under these Terms will be sufficiently given if delivered
personally, posted or successfully transmitted by email or facsimile to the
intended recipient at his/her/its last known address or email address or
9.7 No waiver of any provision of these Terms will serve as a waiver of any
other provision of these Terms and we will not have waived or be deemed
to have waived any provision of these Terms unless such waiver is in
writing and executed by us.
9.8 We will not be liable for any delay or failure in the performance of any of the
obligations imposed by these Terms, provided that the failure is beyond our
9.9 These Terms will be deemed to be made in New Zealand and will be
construed and governed by the laws of New Zealand. The parties submit to
the exclusive jurisdiction of the courts of New Zealand.
9.10 If any provision in these Terms will be invalid, void or illegal or
unenforceable, the validity existence, legality and enforceability of the
remaining provisions will not be affected, prejudiced or impaired.