Terms of Service

  • INTERPRETATION

“Business Day” means any day, other than a Saturday, Sunday or public holiday in Auckland, on which banks are generally open for business in Auckland.

“Consumer Law” means the Consumer Guarantees Act 1993 as amended from time to time.

“Companies Act” means the Companies Act 1993 as amended from time to time.

“CTB Performance” means CTB Performance and Accessories Limited, company number 3635811, or any subsidiaries, agents or employees thereof.

 “Customer” means any person purchasing Goods or Services from CTB Performance, and any other person acting on behalf of or with the authority of that person or entity.

“Goods” means goods, products and inventory supplied by or on behalf of CTB Performance to a Customer from time to time.

“GST” has the meaning given in the Goods and Services Tax Act 1985 as amended from time to time.

  • “Insolvency Event”
  • an “act of bankruptcy” under the Insolvency Act 2006;
  • the appointment of a receiver, receiver and manager, administrator or liquidator;
  • a resolution is passed to wind up or dissolve a Customer or it is deregistered;
  • a person enters into possession of all or any part of the assets of a Customer;
  • a Customer is or states that it is unable to pay its debts when they fall due or enter into a compromise with creditors; or
  • anything analogous or having a substantially similar effect to any of the events specified above;

“Intellectual Property Rights” includes all rights in relation to present and future copyright, confidential information, patents, inventions, registered and unregistered trade marks, registered or unregistered designs, ideas, concepts, know-how or techniques, software and documentation developed or utilised by CTB Performance in relation to the Goods or the Services, and includes any right to licence and sub-licence any of the above.

“Order” means an order placed by a Customer (including by phone or in writing) requesting CTB Performance to supply Goods or services.

“PPSA” means the Personal Property Securities Act 1999 as amended from time to time.

“Price” means the moneys payable by a Customer to CTB Performance in relation to the supply of Goods or Services.

“PMSI” has the meaning given to it in the PPSA.

“Security Interest” includes any security interest under the PPSA.

“Services” means services supplied by CTB Performance to a Customer from time to time.

“Vehicle” means the Customer's vehicle in respect of which the Services are to be rendered by CTB Performance.

  • GENERAL
    • All Orders placed by a Customer are subject to these Terms and Conditions. No additional term or condition contained in any Order will be effective unless expressly pre-agreed in writing by a director of CTB Performance.
    • An Order may be refused by CTB Performance. Subject to subclause 2(c), an Order will be deemed accepted by CTB Performance on the earlier of delivery of the Order or the time CTB Performance notifies a Customer that it has accepted the Order.
    • Unless otherwise agreed in writing, no Order will be deemed accepted until CTB Performance has received a deposit amounting to at least 50% of the Price quoted, estimated or agreed, and CTB Performance will not commence work until such deposit has been received.
    • If Goods or Services are supplied and acquired by a Customer in trade, the parties agree, to the maximum extent possible, that Consumer Law does not apply.
    • The Customer warrants that:
      • he/she/it is the registered owner of the Vehicle or is duly authorised to accept these Terms and Conditions on behalf of the owner of the Vehicle; and
      • all valuable property has been removed from the Vehicle prior to the Vehicle being delivered to the Company to render the Services.
    • PRICE
      • CTB Performance may advise a Customer of the Price from time to time by providing a price list, quote or estimate for the Goods and Services. If an estimate is provided, or no Price is advised or agreed, the Price will be the current amount charged by CTB Performance for the relevant Goods and Services.
      • Any Price quoted by CTB Performance is based on the full quantities specified and does not necessarily operate pro-rata for any greater or lesser quantities.
      • The Price quoted, estimated or agreed may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the reasonable control of CTB Performance between the date the Order is it accepted and the date of delivery of the Goods or Services.
      • Unless otherwise indicated, Prices are inclusive of GST.
      • A Customer acknowledges and agrees to pay CTB Performance on demand all costs and losses incurred by CTB Performance if a Customer, for any reason, does not accept the Order after the date the Order is accepted by CTB Performance.
    • QUOTATION
      • Where a quotation is given by CTB Performance for Goods and Services:
        • unless otherwise agreed or withdrawn by CTB Performance, the quotation shall be valid for 30 days from the date of issue;
        • the quotation shall be exclusive of GST unless specifically stated to the contrary; and
        • CTB Performance reserves the right to alter the quotation because of circumstances beyond its reasonable control.
      • Where Goods and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Goods and Services.
    • TERMS OF PAYMENT
      • A Customer agrees to pay CTB Performance:
        • the Price for all Goods and Services provided by CTB Performance; and
        • any applicable GST or other charges, duties and taxes in respect of the Goods or Services that are invoiced by CTB Performance.
      • Unless otherwise agreed in writing, CTB Performance will require a deposit of at least 50% on the Price quoted, estimated or agreed prior to commencing work.
      • All other amounts are due and payable by the Customer without set-off or deduction:
        • upon collection of, and prior to the release of, the Vehicle; or
        • if so agreed in writing by CTB Performance at its absolute discretion, by the 7th day following the date of invoice by way of direct credit to CTB Performance’ nominated bank account from time to time (unless otherwise specified or agreed).
      • If payment of any invoice is not received in full pursuant to these Terms and Conditions, this will constitute a default and:
        • all money owed by a Customer to CTB Performance will become immediately due and payable; and
        • default interest will accrue on the daily balance of the overdue account from the day following the due date at the Official Cash Rate on the due date plus a margin of 10%.
      • In the event of a default by the Customer under the contract, the Customer agrees to indemnify CTB Performance for all costs that CTB Performance may incur in connection with the default, including:
        • legal costs (on a solicitor/client basis);
        • collection costs, including commissions payable to any collection agency that CTB Performance may choose to engage; and
        • any other costs that CTB Performance may become liable for as a result of the default.
      • A Customer may not set off, deduct or withhold payment of any amount due and owing to CTB Performance.
      • CTB Performance may apply any payment received in any manner it sees fit.
    • VEHICLE LIEN
      • CTB Performance shall have a lien over the Vehicle and shall be entitled to exercise such lien over the Vehicle and not release it to the Customer until the Customer has paid all amounts owing to CTB Performance in full.
      • Whilst exercising such lien, CTB Performance may remove the Vehicle and store it in such a place and in such a manner as CTB Performance shall think fit and proper and at the risk and expense of the Customer.
    • RETENTION OF TITLE
      • Ownership in Goods (which for the purposes of this clause 7 includes goods of the Customer incorporating Goods and goods of the Customer in respect of which CTB Performance has provided Services) supplied by CTB Performance remains with CTB Performance until CTB Performance receives payment in full of all sums due to CTB Performance from the Customer on any account. Pending such payment, the following conditions apply:
        • a Customer must designate and keep CTB Performance’s Goods in such a way as to indicate that the Goods are the property of CTB Performance and upon request must advise CTB Performance of the location of the Goods;
        • a Customer must keep the Goods insured against loss and damage;
        • a Customer irrevocably authorises CTB Performance to without liability to any person:
      • enter any of a Customer’s properties, without notice and inspect the Goods, and if the Customer is in default, repossess and dispose of the Goods;
      • resell the Goods at such price and upon such terms as it sees fit and the proceeds of such sale, after deduction of all expenses, shall be deducted from the amount due;
        • if a Customer sells or disposes the Goods before a Customer has paid the Price, the Customer acknowledges and agrees that:
      • it holds the proceeds of the sale or disposal and any rights or claims against third parties arising out of such sale or disposal in a fiduciary capacity for and to the account of CTB Performance until a Customer has paid all sums whatsoever due to CTB Performance; and
      • a Customer must take all steps necessary to keep such proceeds separate from other monies, to pay over such proceeds to CTB Performance and to transfer to CTB Performance any such rights or claims to the extent necessary to discharge in full a Customer’s indebtedness to CTB Performance; and
        • a Customer has no authority to enter into any contract or condition or give any warranty or representation in relation to the Goods which may render CTB Performance liable to any third party for breach of such contract or condition or for inaccuracy of such warranty or representation which may render CTB Performance chargeable to any tax or duty.
      • If after 14 days from the date on which the Goods are ready for collection or despatch, delivery is delayed due to a Customer’s act, omission, breach or default, CTB Performance may at its election:
        • store the Goods at its premises or elsewhere and the cost of storage, handling and insurance shall be payable by a Customer on CTB Performance’ demand; or
        • terminate the Order without liability to a Customer.
      • FORCE MAJEURE
        • CTB Performance will not be liable for a delay or failure to supply an Order due to any cause beyond its control such as any act or neglect of any carrier, sub-contractor, manufacturer or supplier of CTB Performance, acts of God, strikes, lock-outs, bans or other industrial disturbances, fire, flood, explosion, civil riot or commotion, government interference or request, by-laws, rules or regulations or order of any competent authority.
        • If the delay continues for a period of 20 Business Days or more either party may cancel the Order without liability to the other.
      • INTELLECTUAL PROPERTY
        • As between the parties, title to, and all proprietary rights in, all Intellectual Property Rights will be vested in and remain with CTB Performance and its licensors.
        • All Intellectual Property Rights in respect of the Goods and all modifications to, and derivative works based upon, such items and information, are and will remain the exclusive property of CTB Performance and its licensors, subject only to the express terms of these Terms and Conditions.
      • DEFAULT
        • In the event of:
          • an Insolvency Event;
          • a Customer failing to make any payment to CTB Performance on the applicable due date; or
          • a Customer not complying with an obligation under these Terms and Conditions,

CTB Performance may, without prejudice to any other remedy, have the right to:

  • cease to perform any of its obligations to the Customer;
  • terminate the contract with the Customer without incurring any liability at law or in equity and without prejudice to CTB Performance’ right to recover amounts owing to it by the Customer; and/or
  • sell a Customer’s ordered Goods elsewhere and recover from a Customer any difference between the quoted price and the re-sale price.
  • Termination does not affect the accrued rights and obligations of the parties, including with respect to any payments due to CTB Performance or any indemnities given by a Customer.
  • WARRANTY AND LIABILITY
    • Other than as specified in these Terms and Conditions, to the extent permitted by law all warranties, conditions, liabilities or representations in relation to the quality or fitness of Goods are excluded.
    • Unless otherwise stated in writing, CTB Performance provides only the following warranties:
      • for all Services, CTB Performance warrant to the Customer that the Services will be performed in a professional manner with due care and attention and in accordance with all applicable laws and regulations; and
      • for all Goods, CTB Performance provide the Customer with the same warranties as are received by CTB Performance from its relevant supplier (such warranties to be promptly provided upon request).
    • For the avoidance of doubt, where CTB Performance provides Services, including installation or maintenance Services, in respect of goods provided by the Customer, CTB Performance does not provide any warranty regarding the quality or fitness of such goods.
    • All warranties will be void if the Customer fails to carry out any ongoing maintenance in accordance with CTB Performance’ recommendations and all manufacturer’s guidelines and instructions.
    • Where any claim is made pursuant to the above warranties:
      • the Customer must notify CTB Performance of any alleged damage or defect or potential claim as soon as possible once it becomes aware of the same, but in any event, within five days;
      • the Customer must preserve the Goods and Services in the state they were at the time it became aware of such damage, defect or potential claim; and
      • unless otherwise provided in this clause 11 or Consumer Law (if applicable), there is a no return policy on Goods and Services supplied under these Terms and Conditions.
    • The Goods and Services will be considered to have been supplied in good condition unless the Customer notifies CTB Performance of any alleged damage or defect within five days of supply.
    • If the Customer notifies CTB Performance of any alleged damage or defect within five days of supply, it must allow CTB Performance access as is reasonably required (and upon notice) to inspect the Goods and Services or, if requested by CTB Performance, return any Goods to CTB Performance and/or allow CTB Performance to carry out any necessary Services, at CTB Performance’ cost.
    • CTB Performance will, at its absolute discretion, provide a replacement, or give a credit, for Goods and Services only where:
      • the Customer has complied with its obligations under these Terms and Conditions and CTB Performance has, acting reasonably, accepted the Customer’s claim; and
      • if CTB Performance elects to have any Goods returned, the Goods are returned to CTB Performance in the same condition as when first delivered to the Customer.
    • A Customer agrees that to the extent permitted by law:
      • CTB Performance’ liability to the Customer in respect of damaged or defective Goods and Services is limited to replacement, remedy or credit;
      • CTB Performance will not be liable for and a Customer releases CTB Performance from all liability for any loss of profits, indirect or consequential loss or damage which is or may be sustained by a Customer or any of its employees, officers, agents, contractors or other users of the Goods arising out of or in connection with the supply of Goods or Services; and
      • CTB Performance’ overall liability to a Customer or any of its officers, employees, agents, contractors or other users of the Goods arising out of or in connection with the supply of Goods and Services is limited to the value of the Goods and Services supplied to the Customer.
    • PPSA
      • These Terms and Conditions constitute a ‘security agreement’ for the purposes of the PPSA.
      • Unless the context requires otherwise, the terms used in these Terms and Conditions have the meanings given to them in, or by virtue of, the PPSA.
      • Consideration: In consideration of CTB Performance agreeing to supply Goods or Services to a Customer, the Customer:
        • grants to CTB Performance, at CTB Performance’ discretion, a Security Interest and/or a PMSI in the Goods (which for the purposes of this clause 12 includes goods of the Customer incorporating Goods and goods of the Customer in respect of which CTB Performance has provided Services);
        • agrees that any Goods supplied after the date of the contract and any proceeds of sale of such Goods will be subject to:

(A)           the Security Interest or PMSI granted in the Contract; and

(B)           the terms of these Terms and Conditions;

  • agrees that the Security Interest or PMSI has attached or will attach to all Goods supplied now or in the future to a Customer when a Customer takes possession of the Goods and that the attachment of the Security Interest or PMSI has not in any way been deferred or postponed; and
  • agrees to treat CTB Performance’ Security Interest or PMSI in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.
  • Customer must take all steps: CTB Performance may, by notice to a Customer at any time, require a Customer to take all steps that CTB Performance considers necessary or desirable to:
    • ensure that any Security Interest or PMSI arising under it, is enforceable against a Customer or any third party; and
    • protect, perfect, record, or better secure CTB Performance’ position as a first ranking security.
  • Registration: A Customer acknowledges that CTB Performance reserves the right to register a financing statement in respect of any Goods supplied by CTB Performance to a Customer hereunder and that CTB Performance can require a Customer to pay the cost and expense of registering a financing statement or a financing change statement.
  • Notices: A Customer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest or PMSI hereunder, unless the notice or statement is required by law and cannot be excluded.
  • Protection of Goods: A Customer agrees:
    • not to allow any person to register a financing statement over any of the Goods without CTB Performance’ prior written consent;
    • that a Customer must immediately notify CTB Performance if a Customer becomes aware of any person taking steps to register a financing statement in relation to the Goods; and
    • to perfect and maintain any Security Interest or PMSI that a Customer may have in the Goods under the PPSA.
  • Contracting out of enforcement provisions: Sections 114(i)(a), 133 and 134 of the PPSA are excluded. A Customer waives its rights under sections 121, 125, 129, 131 and 132 of the PPSA.
  • Insolvency: If a Customer suffers an Insolvency Event, without prejudice to any of CTB Performance’ other rights:
    • a Customer’s right to dispose of the Goods in the ordinary course of business in accordance with the PPSA and any of a Customer’s other rights in respect of the Goods immediately cease; and
    • a Customer must immediately return the Goods to CTB Performance in which title has not passed as provided for under clause 7.
  • PRIVACY
    • In receiving the Goods and Services and placing an Order for the same, CTB Performance may collect the Customer’s personal information.
    • The Customer acknowledges that:
      • personal information collected or held by CTB Performance (whether contained in this document or otherwise obtained) is provided and may be held, used and disclosed for the following purposes:

(A)           administering, whether directly or indirectly, CTB Performance’s contracts and enforcing CTB Performance’s rights, entitlements and interests under such contracts;

(B)           marketing goods and services provided by CTB Performance;

(C)           ascertaining at any time the Customer’s creditworthiness and obtaining at any time credit statements and/or reports in respect of the Customer;

(D)           enabling CTB Performance to notify any credit agency of any application for credit or default in the observance of nay any obligation under any agreement(s) of the Customer to CTB Performance and enabling CTB Performance to provide such personal information to any credit agency;

(E)           enabling CTB Performance to communicate with the Customer for any purpose.

  • The Customer has the right under the Privacy Act 1993 to obtain access to and to request correction of any personal information concerning it held by CTB Performance.
  • CTB Performance’ privacy policy sets out more information on how it collects and uses the Customer’s Personal Information. A copy of CTB Performance’ privacy policy is available upon request.
  • MISCELLANEOUS
    • These Terms and Conditions shall be governed and construed in accordance with the laws of New Zealand.
    • Any statement, invoice, notice or other document including any court process (“Notice”) may be given or delivered to or served upon a Customer by CTB Performance by dispatch by prepaid post addressed to a Customer at the last address of a Customer known to CTB Performance. A Customer shall be deemed to have received any Notice 3 Business Days after posting.
    • A Customer shall not assign any rights or obligations under these Terms and Conditions without the prior written consent of CTB Performance.
    • CTB Performance may assign its rights (including the right to payment) to a third party without the consent of a Customer.
    • The singular shall include the plural and vice versa, words importing any gender shall include every other gender and where there is more than one Customer a Customers shall be bound jointly and severally.
    • If anything in these Terms and Conditions is unenforceable, illegal or void then it is severed and the rest remains in force, unless the severance would change the underlying principal commercial purpose or effect.
    • CTB Performance may vary these Terms and Conditions, at any time, by giving a Customer notice in writing of the variations. The variations will apply to any subsequent Order.

 

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