1. Definitions

1.1       “Company” shall mean Chata Ltd T/A Texas Direct and Otahuhu Tyrepower, its successors and assigns or any person acting on behalf of and with the written authority of the Company.

1.2       “Customer” shall mean the purchaser of Equipment, Goods or Services (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Company to the Customer.

1.3       “Contract” means the contract for the sale of Goods.

1.4       “Guarantor” means that person (or persons) who agree to be liable for the debts of the Customer on a principal debtor basis.

1.5       “Equipment” shall mean all Equipment including any accessories supplied by the Company to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by the Company.

1.6       “Goods” shall mean all Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Company to the Customer.

1.7       “Services” shall mean all Services supplied by the Company to the Customer and includes any repairs, technical assessments, advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.8       “Price” shall mean the Price payable for the Goods as agreed between the Company and the Customer in accordance with clause 4 of this contract.

2. The Consumer Guarantees Act 1993 (“CGA”) and Fair Trading Act 1986 (“FTA”)

2.1       Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CGA or the FTA (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.

2.2       Where the Customer buys Goods or procures Services as a consumer, these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the Customer’s statutory rights.

3. Acceptance

3.1       Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.

3.2       All orders for Goods shall be deemed to be an offer by the Customer to purchase the Goods pursuant to these Conditions. No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company.

3.3       The Customer acknowledges and agrees that any Goods purchased will only be released and/or shipped to the Customer only upon the Company’s receipt of cash or cleared funds into the Companies nominated bank account for the full payment of the Goods.

3.4       The Customer acknowledges and agrees that in the event the Customer needs to seek approval for financing, then the Customer will have five (5) working days to arrange finance and make payment. Should the Customer fail to arrange finance within the specified period the following would apply;

(a)        Where the Goods purchased was out of stock, the Customer shall be entitled to have the full deposit refunded; or

(b)        Where the Goods purchased was ordered specifically at the Customer’s request and the machine has not been shipped, the Customer shall be entitled to the return of the deposit less any reasonable costs, to the satisfaction of the Company, incurred in placing and later cancelling the order

(c)        Where the Goods purchased was ordered specifically at the Customer’s request and has been shipped to and/or received by the Company, the Customer will forfeit any part or all of the deposit paid for the sale to reimburse the Company for all reasonable costs incurred in sourcing the Goods.

3.5       The Company makes no guarantee of the year of manufacture and the actual hours of the machine. To the best of the Company’s knowledge, and at the time of the sale, these details are as displayed on the machine.

3.6       Upon acceptance of these terms and conditions by the Customer, the terms and conditions are binding and can only be amended with the written consent of the Company.

3.7       Goods are supplied by The Company only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

4. Price and Payment

4.1       The Price of goods shall either:

(a)        as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or

(b)        The Company’s current price at the date of delivery of the Goods according to the Company’s current Price list; or

(c)        The Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days.

4.2       Prices displayed shall be in New Zealand dollars and include GST where applicable.

4.3       The Company reserves the right, by giving notice to the Customer at any time before delivery, to change the Price of the Goods to reflect any increase in cost to the Customer which is due to any factor beyond the control of the Company. Any variation in Price (including, but not limited to, any variation due to unforeseen circumstances, or due to fluctuations in the currency exchange rate) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

4.4       Unless otherwise agreed in writing by the Company, all Prices given by the Company are on an ex-works basis excluding carriage, packaging, insurance and any applicable tax or duty. Where the Company agrees to deliver the Goods, the Customer shall be liable to pay to the Company charges for transport, packaging and/or insurance.

4.5       Any typographical, clerical or other error or omission in any sales literature, quotation or price list, acceptance of offer, invoice or any other document or information leaflet issued by the Company shall be subject to correction without any liability on part of the Company.

4.6       The Company may, at its sole discretion, require the Customer to pay a non-refundable deposit.

4.7       At the Company’s sole discretion and without any deduction/s by the Customer:

(a)        payment shall be due on delivery of the Goods; or

(b)        payment shall be due before delivery of the Goods; or

(c)        payment shall be due, with prior written confirmation by the Company, within 30 days of the date of invoice.

4.8       Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due before delivery of Goods.

4.9       Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (including any surcharge of up to three and a half percent (3.5%) of the Price when using an American Express credit card), or by direct credit, or by any other method as agreed to between the Customer and the Company.

4.10     GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.11     Payment of the Price for the Goods shall be deemed to be duly made by the Customer only upon the Company’s receipt of cash or cleared funds into the Company’s nominated account.

4.12     If the Customer fails to make full payment on the due date or is otherwise in breach of its obligations, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:

(a)        cancel  the Contract or suspend any deliveries to the Customer; and/or

(b)        appropriate any payment made by the Customer to such Goods as the Company may think fit; and/or

(c)        charge the Customer interest (both before and after any judgment) from day to day on the unpaid amount, at the normal bank overdraft rate, until payment is made in full together with all liabilities and expenses (including legal expenses) incurred by the Company in relation to such default and in recovering any amounts due by the Customer to the Company.

4.12     The Customer shall not be entitled to withhold payment of any invoice or other amount due to the Company by reason of any right or alleged right of set-off or claim whatsoever.

5. Delivery of Goods

5.1       At the Company’s sole discretion, delivery of the Goods shall take place when:

(a)        the Customer takes possession of the Goods at the Company’s address; or

(b)        the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier).

5.2       At the Company’s sole discretion the costs of delivery are in addition to the Price.

5.3       Delivery of the Goods to a third party nominated by the Customer shall be deemed to be delivery to the Customer for the purposes of this agreement.

5.4       In the event the Customer gives any instructions to the Company for the supply of Goods and where no deposit has been given to the Company, the Company is only bound to hold those Goods for the Customer for a maximum period of twenty-four (24) hours. If in that time, no further contact has been made by the Customer, or no effort has been made to take delivery of the Goods, the Company then reserves the right to put the Goods up for sale to any other party.

5.5       All payments must be cleared by the Company prior to the dispatch of any Goods.

5.6       All dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract.

5.7       The Company shall not be liable to the Customer or be deemed to be in breach by reason of any delay in performing or any failure to perform any act to execute the delivery or to deliver the Goods if the delay or failure was due to any cause beyond the Company’s reasonable control.

5.8       Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.

5.9       The Customer shall inspect the goods on delivery and shall, within 3 days of delivery, notify the Company of any alleged defect or failure to comply with the description of shortage of quantity. The Customer shall ten afford the Company an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Customer fails to comply with this provision, the Goods shall be conclusively presumed to be in accordance with Contract and free from any defect or damage or shortage and the Customer shall be deemed to have accepted the Goods.

5.10     If the Goods are not in accordance with the Contract for any reason and the Customer has duly given notice to the Company pursuant to Clause 5.10 above, the Customer’s sole remedy shall be limited to the Company making good any alleged defect, shortage in quantity or failure to comply with the description by replacing of effecting rectification of such Goods at the Company’s discretion. The Company may elect to refund a all or a proportionate part of the price for the Goods under the Contract.

5.11     Collection / Delivery of Goods Should take place within 72 hours of the funds being cleared, as circumstances permit.

6. Risk

6.1       Risk of damage to or loss of the Goods shall pass to the Customer:

(a)        In the case of the Customer collecting, at the time when the Company notifies the Customer that the Goods are available for collection; or

(b)        In the case of Goods to be delivered at the Customer’s premises, at the time of delivery to the Customer’s nominated address; or

(c)        In the case of the Customer nominating its own carrier to affect delivery, at the time when the Goods are made available for collection.

6.2       If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s right to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

6.3       Where the Customer expressly requests the Company or its agents to leave Goods outside the Company’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.

7. Title

7.1        Notwithstanding delivery and the passing of risk in the Goods, the Company and the Customer agree that ownership of the Goods shall not pass until:

(a)    the Customer has paid the Company in full for all amounts owing for the Goods purchased; and

(b)    the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.

7.2       Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.

7.3       It is further agreed that:

(a)    where practicable the Goods shall be kept separate and identifiable until the Company has received payment and all other obligations of the Customer under the Contract are met; and

(b)    until such time as ownership of the Goods shall pass from the Company to the Customer, the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and

(c)    The Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d)   if the Customer fails to return the Goods to the Company then the Company or its agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and

(e)    until such time as ownership in the Goods passes, the Customer shall hold the goods as the Company’s fiduciary agent and bailee of the Goods until such time as the Company has received payment in full for the Goods; and

(f)    the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and

(g)   the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.

8. Personal Property Securities Act 1999 (“PPSA”)

8.1       In relation to the PPSA:

(a)    the Customer grants to the Company a security interest in all present and after acquired Goods and their proceeds;

8.2       Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:

(a)    constitute a security agreement for the purposes of the PPSA; and

(b)    create a security interest in:

(i)        all goods previously supplied by the Company to the Customer (if any);

(ii)        all Goods that will be supplied in the future by the Company to the Customer.

8.3       The Customer undertakes to, at the request of the Company, promptly execute any documents and do anything else required by the Company to ensure that the security interest created under these Conditions constitute a first ranking perfected security interest over the Goods and their proceeds including providing any information the Company reasonably requires to complete a financing statement.

8.4       The Customer will reimburse the Company for all expenses and other charges incurred in registering a financing statement.

9. Returns

9.1       Returns will only be accepted provided that:

(a)    the Customer has complied with the provisions of clause 7.1; and

(b)    the Company has agreed in writing to accept the return of the Goods; and

(c)    the Goods are returned at the Buyer’s cost within thirty (30) days of the delivery date; and

(d)   the Company will not be liable for Goods which have not been stored or used in a proper manner; and

(e)    the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

9.2       The Company may, at its sole discretion, accept the return of Goods for credit but this may incur a handling fee of up to fifteen percent (15%) of the value of the returned Goods plus any freight costs.

9.3       Any item/s that have been accepted for return by the Company will not be deductible from any amount due by the Customer to the Company unless a credit note for the return has been issued.

9.4       Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.

10. Warranty

The Company provides the following warranties on Goods sold:

10.1     Limited Warranty on Imports

10.1.1      Imports of products, machines, parts and accessories do not carry the standard manufacturer’s warranty. Goods under this category are sold by the Company subject to the following limited warranties:

(a)    STIHL equipment and accessories carry a 3 month commercial Warranty, or 12 month residential;

(b)    John Deer equipment and accessories carry a 150 Hour or 12 month Limited Warranty whichever comes first;

(c)    Alloy wheels carry a 12 month manufactures Limited Warranty.

10.1.2      The limited warranty covers any defect or failure of any mechanical component and moving part and is for the limited period stipulated under clause 10.1.1 only. The warranty does not cover normal wear and tear beyond the limited warranty period.

10.1.3      The Company shall have, at its sole discretion, the option to repair or replace defective parts or components. Any repairs will be undertaken at the Company’s premises and it will be the Customer’s responsibility to make the product or equipment available at the Company’s premises. Any freight charges or other expenses incurred in making the equipment available for repairs shall be at the Customer’s cost.

10.1.4      The limited warranty is on behalf of the Company itself and no other warranty is express or implied on behalf of the Company.

10.1.5      The Limited Warranty does not cover abuse, misuse, accidental damage, improper care, alteration, operation outside the specifications of use, fire damage or modifications or repairs from any other person other than the Company’s technicians or agents.

10.2     Tyre Warranty

10.2.1      Tyres are sold exclusively through Otahuhu Tyrepower. All tyres sold carry a 5 year manufacturer’s warranty that covers workmanship in manufacture on all tyres from the date of manufacture.

10.2.2      The Company, at its sole discretion may choose to repair or replace a defective tyre.

10.2.3      Any replacement fitted will be at no charge to the Customer if it is within the first 12’000km or 12 months, whichever comes first, from the date of purchase. For the remainder of the legal thread life, that is after 12’000km or 12 months, any replacement will incur a charge for the proportional wear of the tyre (i.e. if 20% of the legal thread depth has been used the Customer will have to pay 20% of the current replacement tyre’s value)

10.2.4      The Tyre Warranty does cover damage caused by vandalism, motor vehicle accident, mechanical problems, misuse, abuse, misalignment and worn suspension components.

10.3     The Company will under no circumstances be liable for any incidental, consequential or other damages resulting from the use of any Goods sold.

11. Cancellation

11.1     The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.

11.2     In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.

11.3     Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will not be accepted once production has commenced.

12. Customer Data and Privacy Policy

12.1     Clients Personal Details will not be shared or distributed to third parties.

13. Website

13.1     This website and the information displayed constitute an invitation to treat and not an offer to sell or supply products.

13.2     Customers may enter into a contract for the sale and supply of Goods by making an offer via the website to purchase the Goods at the Price advertised on the website by:

(a)    Confirming the Order details in accordance with the procedure on the website;

(b)    Making payment in full (plus any applicable delivery charges) on the website; and

(c)    Our acceptance of that offer in accordance with these terms and conditions.

13.3     An offer to purchase online will be taken to have been communicated only when:

(a)    All the requirements set out in these conditions have been met;

(b)    The electronic instruction containing the offer and is recorded in the Company’s database;

13.4     The Company may at its sole discretion accept or reject any offer made for any reason (or for no reason), including an error in the advertised price for, or description of, the products on the website, or an error on your Order.

13.5     The Customer acknowledges that stock availabilities are subject to change without notice and consequently the Company may not be able to supply a particular product. In such circumstances the Company will contact the Customer by telephone and offer a similar/equivalent product for sale where available.

13.6     To the extent permitted by law, the Company excludes liability to anyone for the loss or damage of any kind relating to any way to the website including but not limited to:

(a)    Errors, mistakes or inaccuracies on the website;

(b)    Personal injury or property damage of any kind resulting from accessing or using the website;

(c)    Any unauthorised access to or use of the website servers;

(d)   Any interruption or cessation of transmission to or from the website;

(e)    Any bugs, viruses, Trojan horses or other harmful code or communications which may be transmitted to or through the website by any third party;

(f)     The quality or fitness for any purpose of any product or of any linked sites.

14. General

14.1     If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

14.2     The Company shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.

14.3     In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

14.4     The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.

14.5     The Company ay license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

14.6     The Customer agrees that the Company may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company updates these terms and conditions online. The Company will not be required to provide notification of such changes.

14.7     Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

14.8     No waiver by the Company of any breach of Contract by the Customer shall be considered as a waiver of any subsequent breach of Contract.

14.9     The Contract shall be interpreted in accordance with the laws of New Zealand.

14.10   It is the Customer’s responsibility to get acquainted with the use and operation of any equipment sold by the Company. The Operation Manual must be read in full prior to operation of all machinery.

Texas Direct Disclaimer

Texas Direct imports genuine parts, machinery, products and accessories from the United States. Some products sold by Texas Direct carry a Limited Warranty. Please refer to the warranty provisions in our Terms and Conditions of Sale. The warranty is offered by Texas Direct and all parts or machinery sold do not carry the standard manufacturer’s warranty. We are independent dealers and do not represent or hold the agency for the brands listed on our website. The logos, brands, names and trademarks listed on this website are copyrighted works of their respective owners and are used for reference only.

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