In these terms and conditions:
1.1 “Application” means the application for a credit account between the Supplier and Customer in relation to the supply of the Services.
1.2 “Customer” means the person, firm, company, partnership, trust or entity named as the Tow Company on the Application.
1.3 “PPSA” means the Personal Property Securities Act 1999, and in these Terms, unless the contrary intention appears, the terms “at risk”, “financing statement”, “financing change statement”, “proceeds”, “security interest” and “verification statement” each have the meaning given to that term in the PPSA.
1.4 “Premises” means the physical address noted on the Application.
1.5 “Region” means any region of New Zealand specified or shown in the Website, or any part thereof.
1.6 “Services” means all services which are supplied by the Supplier under these Terms, including the Website, and any contract, service agreement, or arrangement with the Customer, and includes any goods or services supplied by the Supplier incidental to the Services.
1.7 “Supplier” means CKB Investments Limited trading as Towtruck.co.nz and its successors and assigns.
1.8 “Terms” means these terms and conditions.
1.9 “Website” means the website created, controlled, developed, in the name of, or commissioned by the Supplier under towing.co.nz.
2.1 These Terms apply to all offers, quotations, and agreements entered into between the Supplier and the Customer for the supply of Services.
2.2 The completion and delivery of the Application or the request for Services shall be deemed to be acceptance of these Terms by the Customer.
2.3 Unless otherwise agreed to in writing by the Supplier, in the case of any conflict arising between these Terms and any other terms between the Customer and the Supplier, these Terms shall prevail.
2.4 The Application forms part of the Terms.
2.5 Reference to:
2.5.1 any legislation includes its successor or amendment legislation; and
2.5.2 the singular includes the plural and vices versa.
3. Payment and Price
3.1 Payment for the Services shall be made:
3.1.1 7 days after the date of the invoice; and
3.1.2 for the full amount stated on the Supplier’s invoice (without any kind of deduction or set-off) and in cleared funds; but
3.1.3 immediately where there has been a default under these Terms.
3.2 Where the full payment has not been received in accordance with this clause, the Customer agrees to pay interest to the Supplier on the amount owing on the due date at the rate of 2% per month, calculated on a daily basis, and shall accrue in the same manner until payment of the overdue amount and any interest is made in full. Where only part payment has been made, or any payment made where full payment has not been made for Services previously supplied, the Supplier may apply the payment received by the Customer towards any of the Services supplied at the Supplier’s sole discretion.
3.3 The Customer will pay to the Supplier on a full indemnity basis all costs and expenses (including costs on a solicitor and client basis) that the Supplier incurs in general administration, delivery of Services, securing its position, repossessing, enforcing, or attempting to enforce any of the Supplier’s rights under these Terms.
3.4 All prices are exclusive of goods and services tax, unless otherwise stated, and the amount of goods and services tax shall be added to the price payable by the Customer.
3.5 Prices are subject to change without notice.
3.6 The Customer is liable for full payment of any order for Services subsequently cancelled by the Customer.
4. Delivery and Risk
4.1 The Supplier undertakes to use all reasonable endeavours to deliver the Services within the time requested, but the time of delivery shall not be treated as a condition of sale. The Supplier shall not be liable in any way to the Customer or any other party for loss resulting from delay.
4.2 Delivery shall occur when the Supplier (or a third party on instruction by the Supplier) updates the Website to show the details of the Customer in the specified Region.
4.3 The Customer shall be deemed to have accepted the Services unless the Customer notifies the Supplier otherwise within five (5) working days of delivery of the Services to the Customer.
4.4 The Supplier shall not be liable for any loss or damage suffered by the Customer due to the non-performance, non-delivery, or delay in delivery of the Services howsoever arising through no fault of the Supplier.
4.5 The Customer acknowledges the Supplier may sell space on the Website for the purposes of advertising. The Supplier will endeavour to ensure the advertising does not conflict with the business of the Customer. The Supplier will not be liable for any such conflict.
4.6 The Customer may request in writing that the Supplier grant the Customer exclusive right to be the sole provider in relation to a Region. The Supplier may grant such a request on the following conditions:
4.6.1 such grant is for a limited time only and at the Supplier’s sole discretion; and
4.6.2 there is no breach of these Terms or any other agreement or understanding by the Customer with the Supplier.
5. Title and Intellectual Property
5.1 Except for any trademarks, designs, or other types of intellectual property supplied by the Customer, the Supplier will own all intellectual property in relation to the Services.
5.2 The Supplier will own all pre-existing rights in relation to existing intellectual property that is used in performing the Services. Subject to the Customer performing its obligations under these Terms and the Customer is not authorised to use any of the Supplier’s intellectual property in relation to the Services without the expressed written authority of the Supplier in writing. Where any such consent is given the consent will be as licensee and non-transferable, and for a limited time period only.
5.3 Any new intellectual property borne or created out of the Services will remain the sole property of the Supplier.
6. Representations and Warranties
6.1 The Customer represents and warrants that:
6.1.1 All information provided in the Application is correct.
6.1.2 The Customer is acquiring the Services for business purposes and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services.
6.1.3 The Customer’s primary business is the provision of towing or haulage services.
6.1.4 All information provided on the Application is what the Supplier may use as part of the Services and therefore form part of the public domain. Any information that the Customer does not require to be used as part of the Services must be conveyed in an explicit, clear, and unambiguous manner.
6.2 The above representations and warranties apply to every supply of Services under these Terms and deemed to be repeated each month.
6.3 Subject to any liability that cannot be excluded by law, the Supplier’s total aggregate liability shall be limited to the price paid by the Customer for the relevant Services.
7.1 The Customer acknowledges the following shall be deemed to be in default under these Terms:
7.1.1 if any amount payable by the Customer is overdue; or
7.1.2 if the Customer fails to meet any obligation under, or there is a breach of any provision or warranty in these Terms, or if there is a breach of any obligation under any other contract or deed between the Customer and the Supplier; or
7.1.3 if the Customer becomes or is likely to become insolvent or an arrangement is made with its creditors; or
7.1.4 if a receiver is appointed in respect of any assets of the Customer; or
7.1.5 if the Customer no longer carries on business or threatens to cease carrying on business.
7.2 Following any default under these Terms, the Supplier shall be entitled to do any or all of the following:
7.2.1 refuse to supply any Services; and/or
7.2.2 remove the Customer from the Website or remove any exclusivity of Region; and/or
7.2.3 call up all amounts owing by the Customer to the Supplier as immediately due and payable; and/or
7.2.4 cancel all or any part of any contract or contracts (including these Terms) with the Customer; and/or
7.2.5 enter the Premises to recover any of the Services (whether they are affixed, attached, or stored in any way) or enter any other premises where the Supplier believes the Services are stored at any time and without notice (the Customer irrevocably authorises and indemnifies the Supplier and any of its agents for this purpose), and/or
7.2.6 appoint any person or persons to be receiver of all or any of the Services. A receiver has (in addition to the powers conferred by the Receiverships Act 1993, at law or otherwise and except to the extent expressly excluded by his or her terms of appointment) all the powers in relation to the Services to do anything the Customer (or a person with absolute ownership of the Services and carrying on the business for its own benefit) could do and to exercise such powers on such terms and conditions as the receiver thinks fit.
7.3 The enforcement, partial enforcement, waiver of rights, invalidity, or grant of time, of any of the Supplier’s rights under these Terms shall not be deemed to be a waiver or invalidity of any other of the Supplier’s rights under these Terms.
8.1 The Customer grants to the Supplier a security interest in all present and after acquired Services supplied by the Supplier to the Customer and all proceeds of the Services for the purposes of the PPSA and as security for the payment of the Services and any amount owing by the Customer to the Supplier from time to time.
8.2 On the request of the Supplier, the Customer shall promptly execute any documents and do anything else required by the Supplier to give effect to these Terms and to ensure that the security interest created under these Terms constitutes and remains a first ranking perfected security interest over the Services.
8.3 The Customer:
8.3.1 shall notify the Supplier in writing of a change of its name at least 14 days prior to the date on which the change of name becomes effective;
8.3.2 shall provide any information the Supplier reasonably requires to complete a financing statement or a financing change statement; and
8.3.3 waives any right to receive a copy of a verification statement under the PPSA.
8.4 The Customer agrees that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Terms.
8.5 The Customer agrees that its rights as debtor in sections 116, 120(2), 121, 127, 129 and 131 of the PPSA shall not apply to these Terms.
9.1 The Customer authorises the Supplier to collect from any person, search any database, and to hold and release to any person, personal information concerning the Customer for the purposes of processing this application for a credit account, determining credit worthiness, communicating promotional activities and product information, debt collection, reporting to any crediting reporting or referencing agency any breach by the Customer of any obligation to the Supplier, and enabling the Supplier to sell or assign to any person any obligation the Customer may have to the Supplier. The Customer authorises any person from whom the Supplier requests information concerning them to release that information to the Supplier. The Customer understands that under the Privacy Act 1993 the Customer has the right of access to, and may request correction of, personal information held by the Supplier about the Customer. This clause also relates to any guarantor of the Customer.
9.2 These Terms shall be governed by and construed in accordance with the laws of New Zealand and each of the parties submits to the non-exclusive jurisdiction of the courts of New Zealand.
9.3 The Supplier shall be entitled to amend these Terms at its sole discretion [upon 30 days’ notice in writing to the Customer]. Such amended terms shall apply to all orders placed by the Customer at the expiry of the [30 day] notice period.
9.4 The Customer may not assign its rights under these Terms, the Application, and any other document between the Customer and the Supplier without written consent of the Supplier.
9.5 Where any provision of these Terms becomes illegal, invalid or unenforceable the remaining provisions of the Terms will be unaffected.
9.6 These Terms do not create an agent and principal or joint venture or partnership relationship between a Customer and Supplier and the Supplier will incur no liability whatsoever where a member of a public has searched and used the website in connection with the Services and subsequently sues the Customer.
10.1 In consideration of the Supplier providing Services and/or credit to the Customer or agreeing for a period of one day not to sue the Customer for moneys owed to the Supplier, the director(s), partner(s), trustee(s) and/or any other person who has signed the Application (‘Guarantor’) hereby jointly and severally guarantees the due and prompt payment by the Customer to the Supplier (‘Guarantee’), in the manner and at the times agreed upon between the Supplier and the Customer, or in the absence of any such agreement then upon demand, of all moneys which are owing now or in the future to the Supplier by the Customer, in relation to the Services or credits given by the Supplier, or which may otherwise become payable by the Customer to the Supplier, and including costs which are set out in these Terms.
10.2 The Guarantor’s liability under the Guarantee is as a principal debtor also and not solely as a surety.
10.3 The Guarantor agrees that the Guarantee is a continuing guarantee and will operate until either full payment of all amounts owing by the Customer to the Supplier (including costs and interest) or a written discharge is given despite:
10.3.1 the Customer and the Supplier agreeing to a material alteration to the Terms or any other agreement;
10.3.2 any release of the Customer from any debt or liability under these Terms or any other contract;
10.3.3 any change in circumstance in either the Customer or the Guarantor (including for example, and without limitation, a change of shareholding, change in directorship, death, insolvency);
10.3.4 any release of a co-guarantor;
10.3.5 if the Supplier prejudices any securities held by the Supplier in respect of the Customer; or
10.3.6 any other action which at law would have the consequence of releasing the Guarantor.
10.4 The Guarantor agrees that:
10.4.1.1 the Guarantee shall bind the Guarantor’s respective personal representatives;
10.4.1.2 if any amounts paid by the Guarantor are subject to any claw back provisions, and
10.4.1.3 the Guarantor will not compete with the Supplier for payment in the event of liquidation or insolvency of the Customer.