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Terms & Conditions

GENERAL TERMS AND CONDITIONS OF TRADING

TO:      RAE-EMERSON MOTORSPORT DEVELOPMENTS, IN CONSIDERATION OF YOUR ALLOWING ME/US TO PURCHASE GOODS OR USE YOUR SERVICES, I/WE HEREBY ACKNOWLEDGE AND AGREE THE SUPPLY OF SUCH GOODS OR SERVICES SHALL, UNTIL NOTIFICATION, BE UPON THE FOLLOWING TERMS AND CONDITIONS:

1.    DEFINITIONS
   “REMSD” means Clint Rae and Natasha Emerson-Rae, trading as Rae-Emerson Motorsport Developments, and its agents, servants and employees and any related bodies corporate as defined in the Companies Act 1993 (if such related body corporate is named as the party making or accepting the Customer’s order of Goods).
   “Contract” means any contract for the sale or supply of Goods entered into between REMSD and the Customer.
   “Customer” means the person to whom any quotation is made, any person offering to contract with REMSD on these terms and conditions, any person who purchases Goods from REMSD.
   “Goods” means all products agreed to be supplied by REMSD to the Customer under any contract, arrangement or understanding between REMSD and the Customer and includes:
   (a)    REMSD Goods; and
   (b)    Third Party Goods.
   “PPSA” means the Personal Property Securities Act 1999.
“Quoted Date” means the date of delivery as agreed between the Customer and REMSD.
“REMSD Goods” means all products designed and manufactured by REMSD.
“Services” means all mechanical work carried out by REMSD for the Customer under any contract, arrangement or understanding between REMSD and the Customer.
“Third Party Goods” means all products sourced by REMSD from third party suppliers.
2.    TERMS AND CONDITIONS PARAMOUNT
2.1    Unless REMSD otherwise agrees in writing, these are the only terms and conditions of sale to which REMSD will be bound and the Customer agrees that these terms and conditions will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any).
2.2    These terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods and Services including, but not limited to, those relating to the performance of the Goods and Services or the results that ought to be expected from using the Goods and Services.
3.    WARRANTIES
3.1    REMSD warrant that the REMSD Goods and Services will be free from defect in material and workmanship providing they are properly installed in their correct application.
3.2    The warranty provided in clause 3.1 will be void for all REMSD Goods and Services where there is evidence that there is mis-application, improper installation, abuse, lack of maintenance, negligence or alteration that is not directly attributable to the conduct of REMSD.
3.3    The Customer expressly acknowledges that the warranty provided in clause 3.1 shall not apply where the Goods or Services are used in racing or competition applications, or where the motor vehicle or component has been modified in any way.
3.4    No warranty is provided for pre-used Goods.
3.5    REMSD does not warrant the merchantability or fitness for purpose of any Third Party Goods.  REMSD will provide the Customer with any warranty documentation provided with the Third Party Goods and the Customer agrees that it shall only have recourse against the supplier of the Third Party Goods for any claims arising in relation to those Third Party Goods.
3.6    The Consumer Guarantees Act 1993 shall not apply if the Customer has acquired, or held itself out as acquiring, the Goods or Services for the purpose of a business.
3.7    To the extent permitted by law:
(a)    All conditions, warranties, guarantees and representations in respect of the Goods and Services implied into the Contract are excluded, and;
(b)    REMSD’s liability for breach of a condition or warranty implied into this Contact is limited to any one of the following as determined by REMSD:
   (i)    The replacement of the Goods or the supply of equivalent Goods;
(ii)    The repair of the Goods or payment of the cost of having the Goods repaired (if appropriate);
(iii)    The supply of further Services to remedy any fault; or
(iv)    The refund of the price paid by the Customer for the Goods or Services.
3.8    The Customer will examine the Goods or the output of any Services for defects and shall notify REMSD of any defects in writing within 24 hours of delivery.  If the Customer does not notify REMSD within 24 hours of delivery the Customer shall be deemed to have accepted the Goods and Services supplied.
3.9    To the extent the law permits, notwithstanding any other clause of these terms and conditions, the parties agree REMSD shall have no liability whatsoever to the Customer or any third party arising out of or in any way connected with a Contract for any consequential or indirect losses of any kind whatsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort. Consequential or indirect losses will be taken to include but not be limited to:
(a)    any loss of income, profit or business;
(b)    any loss in the nature of overhead costs;
(c)    any loss of goodwill or reputation; and
(d)    any fine, penalty, cost or loss incurred by the Customer connected in any way with the Goods.
4.    ADVICE
4.1    The Customer hereby acknowledges that it has not relied on any advice, recommendation, information or assistance provided by REMSD in relation to the Goods and/or Services or their use or application.
4.2    The Customer further acknowledges that it has relied on its own skill and judgement in relation to the decision to purchase the Goods and/or Services and in relation to their appropriate use or application.  
4.3    A motor vehicle modified with REMSD’s Goods or Services may not meet legal requirements for operation on public roads.  The Customer acknowledges that it is responsible to check and comply with all legal requirements before operating the motor vehicle on a public road.  
4.4    The Customer acknowledges that installation and use of performance Goods and Services may affect and void motor vehicle warranties and insurance policies and further acknowledges that REMSD shall have no responsibility for such occurrence.  
5.    PAYMENT AND DEFAULT
5.1    Subject to clause 5.4, and unless otherwise agreed in writing, all accounts shall be payable within 7 days of invoice.  
5.2    Interest on overdue accounts shall accrue daily from the date that payment was due in accordance with clause 5.1 until the date of payment, at the rate of 15% per annum.
5.3    If any of the events set out in clauses 5.3(a) to (e) below occur, REMSD may at its option withhold further Goods and Services or cancel the Contract without notice to the Customer and without prejudice to any other action or remedy which REMSD has or might otherwise have had and all moneys owing and outstanding to REMSD on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable:
(a)    The Customer makes default in any payments or is unable or states that it is unable to pay its debts as they fall due;
(b)    The Customer, being an individual, commits an act of bankruptcy or enters into a proposal with its creditors or otherwise compounds or compromises with the Customer’s creditors;
(c)    The Customer, being a company, goes into liquidation by voluntary or Court appointment of a liquidator or an application for appointment of a liquidator to the Customer is filed in the High Court;
(d)    A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer; or
(e)    The Customer experiences any analogous event, having substantially similar effect to any of the events specified above.
5.4    Notwithstanding clause 5.1, REMSD may, at all time in its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore, review, alter or terminate the Customer’s credit limit or payment terms, without notice. Without limiting the generality of the foregoing, the decision of REMSD shall be final and REMSD accepts no liability or responsibility for any loss, whatsoever arising, incurred by the Customer due to the operation of this condition.
5.5    If the Customer fails to pay any amount which may become due and payable by the Customer to REMSD under any clause within these conditions of sale, including any sum which may become due and payable by virtue of the provisions of clause 5.3, the Customer shall be liable for and hereby agrees to indemnify REMSD in respect of all costs and expenses which REMSD may incur as a result of such default, including legal costs and expenses incurred on a solicitor/own client basis.
5.6    The costs and expenses that may be claimed in accordance with clause 5.5 include any cost or expenses that may be incurred by REMSD in enforcing its rights under clauses 7 and 8, provided that nothing herein contained shall imply or otherwise suggest that REMSD is only entitled to enforce its rights under clauses 7 and 8 in the event of a default as described by this clause 5.  The Customer acknowledges that REMSD may enforce its rights and otherwise make any claim under the terms of clauses 7 and 8 at any time, regardless of whether the Customer is then in default under the terms of any provision of these conditions of sale.
5.7    Any special pricing, trade pricing or discounts offered by REMSD to the Customer shall only apply to accounts paid by the due date in accordance with clause 5.1.
6.    RISK
6.1    The Customer acknowledges that it is the Customer’s responsibility to maintain appropriate insurance while any motor vehicle or related parts or products are being stored with or having work done on them by REMSD.  
6.2    REMSD shall not be liable for any loss, damage, theft or otherwise while motor vehicles, parts or products are stored with or having work done on them by REMSD.
7.    TITLE
7.1    Title in and to the Goods shall not pass to the Customer until REMSD has received payment of all monies in full owing by the Customer to REMSD.
7.2    The Customer acknowledges that until title in and to the Goods passes to the Customer in accordance with this clause, the Customer holds the Goods as bailee of REMSD and that a fiduciary relationship exists between the Customer and REMSD.
7.3    Until title in and to the Goods passes to the Customer in accordance with this clause, the Customer shall store the Goods separately and in such a manner that they are clearly identified as the property of REMSD. REMSD shall be entitled at any time until title in and to the Goods passes to the Customer to demand the return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer to enter any premises occupied by the Customer in order to search for and remove the Goods.
7.4    The Customer acknowledges that if it sells the Goods before title in and to the Goods has passed to the Customer in accordance with this clause, it sells the Goods as a fiduciary agent of REMSD, provided that such sales shall not give rise to any obligations on the part of REMSD. The Customer shall hold the proceeds of sale on trust for REMSD in a separate account.
7.5    This clause will not limit REMSD’s rights under the PPSA and clause 8 of these terms and conditions.
8.    PERSONAL PROPERTY SECURITIES ACT 1999
8.1    The Customer consents to REMSD registering a financing statement under the PPSA in respect of the Goods supplied (for which purpose credit has been extended) in accordance with clause 7 of these terms and conditions to create a purchase money security interest (“PMSI”) (as that term is defined in the PPSA).
8.2    The Customer agrees to the debiting of its accounts with REMSD with the cost of registration of the PMSI and all other costs associated with perfection and enforcement of the PMSI (including REMSD’s full solicitor/own client costs).
8.3    So far as permitted by s107 of the PPSA, the Customer will have no rights under s114, s120 and s133 of the PPSA including the right to receive any notices.
8.4    The Customer waives its rights to receive a verification statement in respect of any financing statement or financing change statement registered by REMSD. The Customer agrees to REMSD exercising its rights under s109 and s120 concurrently and to REMSD retaining any repossessed Goods immediately so that REMSD’s rights under s123 of the PPSA shall become effective immediately upon repossession.
8.5    The Customer agrees that repossession and retention of the Goods under s120 – 123 will only satisfy so much of the Customer’s debt to REMSD as is equivalent to REMSD’s estimation of the market value of the Goods as they are to be used by REMSD at the date of repossession and the repossession and retention will immediately extinguish any rights and/or interest the Customer has in the Goods.
8.6    The Customer will indemnify REMSD for any claims brought by a third party against REMSD as a result of REMSD’s repossession and retention of the Goods. The Customer acknowledges that REMSD may allocate any monies it receives from the Customer towards debts, changes and expenses in any priority it determines to maintain the PMSI in the Goods.
9.    FORCE MAJEURE
9.1    The supply of Goods or Services may be totally or partially suspended by REMSD during any period in which REMSD may be prevented or hindered from delivery or supply through any circumstances outside REMSD’s reasonable control, including but not limited to strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdown of plant, machinery, software, hardware or communication network. REMSD shall not incur any liability to the Customer in respect of such suspension.

10.    SEVERANCE
10.1    If any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.
11.    GOVERNING LAW
11.1    This agreement is governed by the law of New Zealand and REMSD and the Customer submit to the non-exclusive jurisdiction of the courts of New Zealand.
12.    VARIATION OF TERMS AND CONDITIONS
12.1    REMSD reserves the right to vary these terms and conditions in its sole discretion by written notice to the Customer, whereupon such variations will thereafter apply to subsequently supplied Goods.

GUARANTEE
1.    In consideration for REMSD agreeing to supply goods from time to time to the client, the guarantor(s) unconditionally guarantee the due and punctual payment by the Customer of all monies payable in respect of the Goods or Services as and when the same shall become due and payable by the Customer.
2.    This guarantee shall be a continuing guarantee and shall not be discharged by any settlement or account.
3.    The guarantor(s)’s liability under this guarantee shall not be discharged, abrogated, prejudiced or affected by:
3.1    The granting of time, credit or other indulgence or other concession to the Customer;
3.2    Any alteration, modification, variation or addition to any agreement in respect of the supply of the Goods or Services; or
3.3    Any other act, omission or event which but for this provision might operate to discharge, impair or otherwise affect the guarantor(s)’s obligations under this guarantee or any of the rights, powers or remedies conferred upon the guarantor(s) by this guarantee or by law.
4.    It is recommended the Guarantor(s) seek independent legal advice before executing this guarantee.


 

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