Terms of Trade

  1. Acceptance of terms: This Application for Credit and Terms of Trade, and the Consignment Agreement (if any), (together “the Agreement”) are the entire Agreement between Tyremax LP (“Tyremax”), the Applicant (“the Purchaser”), and the guarantors (if any) (“the Guarantors”) for the supply of goods (“the Goods”) to the Purchaser and supersedes any representation, agreements and other communications made by Tyremax. This Agreement applies to every purchase of goods made by or on behalf of the Purchaser.
  2. Credit Limit: Tyremax may impose a credit limit on the Purchaser’s account and may change that credit limit from time to time without prior notice.
  3. Terms of Payment: The Purchaser must pay the purchase price of any Goods, together with any associated charges and GST, to Tyremax by the 20th day of the month following the purchase. All overdue accounts are to bear interest at the sole discretion of Tyremax. If charged, interest is payable at the rate of 2% per month calculated on a daily basis from payment due date until the time of actual payment but without prejudice to Tyremax’s other rights and remedies in respect of any default. All amounts payable to Tyremax are to be paid in full without any deduction. The Purchaser is to pay to Tyremax any expenses, disbursements and legal costs incurred by Tyremax in the enforcement of any rights contained in this Agreement, including any reasonable solicitor’s fees or debt collection agency fees.
  4. Guarantors’ responsibilities: In consideration of Tyremax supplying or consigning goods to the Purchaser, the Guarantor(s) jointly and severally, irrevocably, and unconditionally guarantee the punctual payment of all amounts payable by the Purchaser to Tyremax and the punctual performance of all the Purchaser’s obligations to Tyremax.
  5. Quotes: Where a quotation is given by Tyremax for goods, the quotation is to be valid for one month from the date of issue.  The Purchaser cannot cancel any purchase order for procured Goods accepted by Tyremax and is bound by the quoted price.
  6. Retention of title and security interest: Tyremax retains all property, title or ownership in any Goods supplied to the Purchaser until payment in full is made for those Goods. The Purchaser grants to Tyremax a purchase money security interest in the Goods supplied (whether on consignment, in the ordinary course of business or otherwise) either to enable the Purchaser to acquire rights to the Goods or to secure all obligations of the Purchaser under this Agreement. The Purchaser agrees at its own cost to take all steps necessary and to provide Tyremax with all information necessary to register, maintain and if necessary enforce a financing statement over the Goods or their proceeds and will advise Tyremax immediately in writing of any changes to its name or other relevant information. The Purchaser agrees with Tyremax: (i) to waive any right to receive a copy of the verification statement of any financing statement, (ii) to contract out of the Purchaser’s rights under section 107(2) of the Personal Property Securities Act 199 (“PPSA”); and (iii) that nothing sections 114(1)(a), 133 and 134 of the PPSR applies to this Agreement, and accordingly to contract out of these sections.  Tyremax may require the Purchaser to pay all reasonable costs, including legal costs, associated with the discharge or amendment of any financing statement registered by Tyremax, whether or not the change was initiated by the Purchaser.
  7. Delivery: Unless the parties otherwise agree, the cost of delivery is to be met by the Purchaser. Tyremax is not liable for any direct or indirect consequences of delay in delivery.
  8. Risk: If Tyremax arranges delivery of the Goods, then all risk of loss of, or damage to, the Goods (the “Risk”) passes to the Purchaser on delivery of the Goods to the Purchaser. However, if the Purchaser arranges delivery of the Goods, then the Risk passes to the Purchaser when the Goods leave the premises of Tyremax.
  9. Vendor warranties: Where the Purchaser and Tyremax are in trade and the goods are being supplied by Tyremax and acquired by the Purchaser in trade the parties agree that to the maximum extent permitted by law the Consumer Guarantees Act 1993 does not apply to the Agreement or to any matters, information, representations or circumstances covered by the Agreement and that it is fair and reasonable that Tyremax and the Purchaser are bound by this clause.  The Purchaser agrees to notify any consumer prior to any sale of any defects or limitations in the Goods and any expressed purposes for which the Goods are not suitable.  The Purchaser must not represent to its customers that repair facilities or replacements will be available without Tyremax’s prior written approval.
  10. Limitation of Liability: Except as provided in this Agreement, Tyremax is not to be liable in any way (including liability for negligence or otherwise in contract, tort or in equity and including liability) to the Purchaser or to any person in connection with the Goods supplied or not supplied or the exercise of Tyremax’s rights under this Agreement. In particular, but without limiting the foregoing, Tyremax (and its agents) will not be liable for any loss of income, profits, savings or goodwill or for any indirect or consequential loss or special or exemplary damages. Tyremax is not liable for delay or failure to perform its obligations under this Agreement if the cause of that delay is beyond its control.  The warranties and any liability implied by sections 137 to 141 of the Contract and Commercial Law Act 2017 are expressly excluded pursuant to section 197 of that Act.  Notwithstanding anything in this Agreement, any liability of Tyremax under, or in relation to, this Agreement or the provision of Goods is limited to the purchase price of the relevant Goods.
  11. Returns: Faulty, defective or mis-described goods (“Faulty Goods”) may be returned to Tyremax for compensation in accordance with clause 12. However, unless they are Faulty Goods, procured or customised Goods cannot be returned.  Any other Goods may be returned to Tyremax by the Purchaser for a credit provided the Purchaser complies with the returns policy of Tyremax from time to time and Tyremax agrees to accept their return.
  12. Compensation for faulty goods: If the Purchaser believes that it has been supplied with Faulty Goods then the Purchaser must advise Tyremax within 14 days of the fault being identified. Tyremax will then collect the Goods or arrange for their collection from the Purchaser and will assess the Goods and determine whether they are Faulty Goods. If in the opinion of Tyremax or its agent the Goods returned are Faulty Goods, and either Tyremax or the manufacturer is responsible for the Goods being Faulty Goods, then Tyremax will at its option repair or replace the Faulty Goods or pay or credit compensation to the Purchaser or its account an amount not exceeding the purchase price of the Goods. If the Faulty Goods are tyres, then the compensation paid will be assessed on a pro-rata basis based on tread wear. (section amended & put under 10.)
  13. Privacy: The Purchaser and Guarantors authorise Tyremax to collect, retain and use any information about them from any person or agency for the purpose of assessing their credit worthiness, enforcing their rights under this Agreement or marketing goods provided by Tyremax to any person. The Purchaser authorises Tyremax to disclose any information obtained to any person for these purposes.  The Purchaser and Guarantors have a right of access to, and may request correction of, personal information held by Tyremax about them.  If a privacy breach occurs which has caused or may cause serious harm to the Purchaser and/or the Guarantors, Tyremax will notify the Purchaser and/or Guarantors (as applicable) of this as soon as practicable either directly or, if that is not reasonably practicable, by public notice.
  14. Assignment: Neither the Applicant nor the Guarantors may transfer any right or benefit under this Agreement. Tyremax may transfer its rights and obligations under this Agreement.
  15. Termination: Either party may terminate this Agreement at any time and for any reason by giving the other party notice that intention in writing.  Upon termination of the Agreement, by either party, with or without cause, all indebtedness of the Purchaser to Tyremax is immediately due and payable; and each party is to return all property belonging to the other in whatever form possessed or under the control of that party.  Termination is without prejudice to any right either party may have and does not cancel any unperformed orders of Goods unless Tyremax agrees.
  16. Miscellaneous: Tyremax reserves the right to correct any typographical or clerical errors in any process of quotation or contained in an order or quote. Tyremax may in its absolute discretion change this Agreement at any time by sending at least 30 days’ notice in writing of the change to the Purchaser’s last known address. Tyremax shall not be deemed to have waived any right to do anything unless that waiver is in writing and signed by an authorised manager of Tyremax. The illegality, invalidity or unenforceability of any term of this Agreement is not to affect the legality, validity or enforceability of any other term.  These terms will be governed by the laws of New Zealand, and the Purchaser, the Guarantors and Tyremax agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand.