Terms and Conditions – Top Food Trailers

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Contract:

Business Day means any day (other than a Saturday, Sunday or public holiday) on which banks are open for general business in New Zealand.
Food Trailer means the food trailer described in the Food Trailer of the Contract to Purchase a Food Trailer.
Top Food Trailers means Top trailers LTD (NZBN: 9429052490354) trading as Top Food Trailers and its substitutes, successors and permitted assigns its licencees.
Top Food Trailers Main Warehouse means Top Food Trailers’ principal place of business located at 61 Paul Matthews Road, Rosedale, Auckland.
Purchaser means the person or entity specified in the Customer of the Contract to Purchase a Food Trailer.
Security means any property whether real property or personal property of which the Hirer is the owner (or in which the Hirer has an interest) or registered proprietor whether beneficial, legal, equitable or other.

1.2 Interpretation

(a) In this Contract, unless the context requires otherwise:

(i) the singular includes the plural and vice versa;

(ii) a gender includes the other genders;

(iii) other grammatical forms of a defined word or expression have a corresponding meaning;

(iv) a reference to a document is to that document as amended, novated, supplemented, extended or restated from time to time;

(v) a reference to a party to this Contract includes that party’s executors, administrators, successors, permitted assigns and permitted substitutes;

(vi) a reference to a person or an entity includes a natural person, partnership, body corporate, association, joint venture, governmental or local authority (whether or not having a separate legal personality) and any other body or entity (whether incorporated or not);

(vii) a reference to a thing (including a right) includes a part of it but nothing in this clause implies that part performance of an obligation constitutes performance of the obligation;

(viii) money amounts are stated in New Zealand currency;

(ix) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, or a party, an annexure, an exhibit or a schedule to, this Contract and a reference to this Contract includes any annexure, exhibit and schedule to this Contract.

(b) In this Contract, headings are used for convenience only and do not affect the interpretation of this Contract.
(c) In this Contract, a reference to all or any part of a statute, rule, regulation ordinance or by-law is to that statute, rule, regulation, ordinance or by-law as amended, consolidated, re-enacted or replaced from time to time and a reference to a statute includes all rules, regulations, ordinances and by-laws issued under that statute.
(d) When used in this Contract, “include”, “for example” or any similar expression is not used, and must not be interpreted, as words of limitation.
(e) Any provision in this Contract which binds more than one person binds all of them jointly and each of them severally unless a contrary intention is expressed.
(f) No provision of this Contract may be construed adversely to a party solely because that party was responsible for the preparation of this Contract or the preparation or proposal of that provision.
(g) In this Contract, a reference to a “power” includes a right, power, authority, discretion or remedy.
(h) In this Contract, the words “in writing” include any communication sent by letter, facsimile transmission, email or any other form of communication capable of being read by the recipient.

2. FORMATION

2.1 This signing of this Contract by the Purchaser means an offer has been made to purchase the Food Trailer on the terms and condition set out in this Contract. No offer is made unless the Purchaser is provided with a copy of this Contract at the time it is signed by the Purchaser.

2.2 This offer of the Purchaser is accepted by the Top Trailers Ltd when:

(a) this Contract is signed by the Top Trailers Ltd or a person authorised by the Top Trailers Ltd: and

(b) notice of the acceptance is given to the Purchaser. This Contract will then be binding on both parties.

3. FINANCE

3.1 If any information is completed in or the Purchaser signs the ‘Finance Clause is Applicable’ box in this Contract, then this clause 3 applies to the Contract.

3.2 The Purchaser must: –

(a) Immediately after the date of this Contract make a finance application to the Lender; and

(b) Use all best endeavours in good faith to obtain finance approval: –

(i) before the Latest Time stated in the Contract;

(ii) for the amount stated in the Contract; and

(iii) from the Lender named in the Contract (or a lender acceptable to the Purchaser).

3.3 If by the Latest Time: –

(a) finance approval has been obtained; and

(b) the Purchaser has given a finance approval notice to the Top Trailers,

then this Clause 3 is satisfied and this Contract is in full force and effect.

3.4 This Contract will come to an end without further action by either Party and the Top Trailers Ltd must immediately refund any deposit paid to the Purchaser, if on or before the Latest Time: –

(a) written finance approval has not been obtained or the finance application has been rejected; and

(b) the Purchaser gives a non-finance approval notice to the Top Trailers Ltd.

3.5 If by the Latest Time: –

(d) the Purchaser has not given a non-finance approval notice to the Top Trailers Ltd,

then this Contract will be in full force and effect unless the Top Trailers Ltd terminates this Contract by giving notice to the Purchaser. If the Top Trailers Ltd terminates this Contract pursuant to this cause 3.5, then the Top Trailers Ltd reserves the right to forfeit the deposit paid by the Purchaser and any other rights under this Contract.

3.6 If requested in writing by the Top Trailers Ltd, the Purchaser must:

(a) advise the Top Trailers Ltd of the progress of the finance application; and

(b) provide evidence in writing of the making of a finance application in accordance with clause 3 and of any loan offer made, or any rejection; and

3.7 If the Purchaser does not comply with the request within 2 Business days then the Purchaser authorises the Top Trailers Ltd to obtain from the Lender the information referred to in clause 3.6.

4. COLLECTION OF FOOD TRAILER AND PAYMENT OF BALANCE

4.1 The Purchaser must pay the remaining balance of the Total Purchase Price and other amounts that are, or may become payable by the Purchaser under this Contract including but not limited to the storage fees, to the Top Trailers Ltd on or before the delivery date specified in this Contract or to be advised by the Top Trailers Ltd (“the Delivery Date”).

4.2 Payment by cheque for all or part of the remaining balance of the Total Purchase Price will not be considered to have been received by the Top Trailers Ltd until the cheque has been honoured.

4.3 Subject to clause 4.1, the Purchaser must collect the Food Trailer within 7 days of the Delivery Date from the Top Trailers Ltd Main Warehouse.

4.4 If the Purchaser fails to collect the Food Trailer from the Top Trailers Ltd Main Warehouse in accordance with clause 4.3, the storage fees specified in the Contract will be charged to the Purchaser, and the Purchaser must pay the storage fees due and payable before the Purchaser collects the Food Trailer.

4.5 If the Purchaser fails to collect the Food Trailer from the Top Trailers Ltd Main Warehouse within 30 Business Days of the Delivery Date, the Top Trailers Ltd reserves to the rights to:

(a) terminate the Contract by giving written notice to the Purchaser;

(b) forfeit any deposit paid by the Purchaser; and

(c) seek to recover any additional damages or losses incurred as a result of the Purchaser’s failure to collect the Food Trailers, including but not limited to: –

(i) storage fees and any other amounts payable by the Purchaser under this Contract;

(ii) loss of opportunity to sell the Food Trailer to another purchaser; and

(iii) any diminished value of the Food Trailer due to the delay.

4.6 Prior to the Purchaser collecting the Food Trailer, the cost of manufacturing the Food Trailer changes because the manufacturer changes its price or there is a change in statutory charges which apply to the Food Trailer, the Total Purchase Price will be adjusted by the corresponding amount.

4.7 If the manufacturer increases the cost of a new Food Trailer to the Top Trailers Ltd, the Top Trailers Ltd is only entitled to pass on to the Purchaser an increase of up to and including 10% of the Total Purchase Price of the Food Trailer.

4.8 If the cost of a Food Trailer changes in accordance with clause 4.6 or 4.7 because the manufacturer releases a new model and the cost of the Food Trailer is no longer available or applicable, the Total Purchase Price will be adjusted by the corresponding amount.

4.9 If the increase exceeds 10% of the Total Factory Price of the Food Trailer, the Purchaser may terminate this Contract and obtain a refund on the deposit paid by written notice to the Top Trailers Ltd.

5. DELIVERY OF THE FOOD TRAILER

5.1 The Top Trailers Ltd will deliver the Food Trailer to the Purchaser on or before the Delivery Date.

5.2 If a Delivery Date is not stated in this Contract, the Top Trailers Ltd will deliver the Food Trailer within 3 months of this Contract becoming binding on the Parties.

5.3 Delivery of the Food Trailer to the Purchaser will take place at the Top Trailers Ltd Main Warehouse, unless other arrangements are agreed to between the Purchaser and the Top Trailers Ltd.

5.4 The Top Trailers Ltd will use its best endeavors to deliver the Food Trailer by the Delivery Date, but shall not be liable to the Purchaser for any damage or loss whatsoever arising either directly or indirectly from any delay or failure of delivery.

5.5 In the case of a new Food Trailer, where the Top Trailers Ltd is unable to deliver the Food Trailer by the Delivery Date due to the Top Trailers Ltd being unable to source a Food Trailer with the specifications, features, or options requested by the Purchaser, then the Top Trailers Ltd may terminate this Contract at which time it must immediately refund any deposit paid by the Purchaser.

6. PASSING OF PROPERTY AND RISK IN THE FOOD TRAILER

6.1 The Top Trailers Ltd remains the owner of the Food Trailer until the Total Purchase Price has been paid in full by the Purchaser.

6.2 Risk in the Food Trailer passes to the Purchaser when the Top Trailers Ltd delivers the Food Trailer to the Purchaser. Where the Food Trailer is delivered to the Purchaser on a trailer for the Purchaser’s convenience, delivery of the Food Trailer is taken to occur when the Purchaser or the Purchaser’s representative signs an acknowledgment of delivery of the Food Trailer. This applies whether delivery occurs at the Top Trailers Ltd’ premises or any other location.

6.3 If, at the request of the Purchaser, Top Trailers Ltd delivers or arranges delivery of the Food Trailer from its Main Warehouse to a location specified by the Purchaser, all risk in the Food Trailer during transit shall pass to the Purchaser upon the Food Trailer leaving the Main Warehouse, including but not limited to any damage, loss, or delay occurring in transit.

7. FOOD TRAILER PURCHASER'S RIGHT TO TERMINATE THIS CONTRACT

7.1 The Purchaser may terminate this Contract if the Top Trailers Ltd has breached any of the obligations imposed on the Top Trailers Ltd by this Contract.

7.2 If this Contract is validly terminated by the Purchaser, the Top Trailers Ltd must immediately refund any deposit paid by the Purchaser.

8. TOP TRAILERS LTD ' RIGHT TO TERMINATE THIS CONTRACT

8.1 The Purchaser may terminate this Contract if the Top Trailers Ltd has breached any of the obligations imposed on the Top Trailers Ltd by this Contract.

8.2 The Top Trailers Ltd may terminate this Contract if the Purchaser has breached any of the obligations imposed on the Purchaser by this Contract.

8.3 If this Contract is validly terminated by the Top Trailers Ltd, the Top Trailers Ltd may seek an amount up to, but not exceeding, 30% of the Total Purchase Price of the Food Trailer as pre-estimated damages.

8.4 Any amount sought by the Top Trailers Ltd under Clause 8.2 must be a genuine estimate of the Top Trailers Ltd’ loss arising from the Purchaser’s breach of the obligations imposed on the Purchaser by this Contract.

9. NOTICES

9.1 All Notices required by this Contract must be given by direct written communication, including but not limited to electronic mail, fax or post to the addresses included in this Contract.

10. PRIVACY ACKNOWLEDGEMENT & CONSENT

10.1 The Purchaser acknowledges that the purpose for which the information contained in this Contract may be put includes advising the Purchaser about products and services, conducting customer surveys and matters relating to: warranties, roadside assistance, recalls, and other matters relating to the Food Trailer and the Purchaser.

10.2 In respect of these purposes, the Purchaser consents to disclosure of the information contained in this Contract to companies related to the Top Trailers Ltd and to third-party service providers (which may be overseas).

11. STAMP DUTY

11.1 Stamp Duty, if included in this Contract, has been calculated with care by the Top Trailers Ltd. If the Office of State Revenue determines that the amount stated is incorrect then the Purchaser shall indemnify the Top Trailers Ltd for any shortfall.

12. WARRANTY

12.1 This warranty applies to defects in workmanship that become apparent and arereported to Top Trailers Ltd as outlined in clause 4.1 (“Defect”). The warranty is valid for 12 months from the date ownership of the Food Trailer is transferred to the Client.

12.2 This warranty does not apply to any defect or damage that arises directly or indirectly due to:

(a) Improper maintenance, storage, or handling by the Client;

(b) Failure to follow installation, operation, maintenance, or repair guidelines provided by Top Trailers Ltd;

(d) Use of the Goods beyond the intended scope or specified application (e.g., overloading);

(e) Installation on non-original chassis;

(f) Insect or vermin infestation;

(g)Power surges, lightning strikes, or use of incorrect power supply;

(h) Accidental damage;

(i) Damage caused by loose, missing, or incorrectly tightened nuts, bolts, or lug nuts;

(j) Using the Goods in rental applications or combinations with hire equipment;

(k) Continued use of the Goods after a defect has become apparent, or should reasonably have been noticed;

(l) Normal wear and tear, including but not limited to light bulbs, batteries, filters, paint, brakes, tyres, or surface damage from road elements or weather exposure (e.g., salt, sand, solvents);

(n) Vandalism, collision, or natural disasters.

12.3 This warranty becomes void if any repair, alteration, or overhaul is carried out without prior written consent from Top Trailers Ltd.

12.4 Top Trailers Ltd will not be held liable for any delays in assessing, repairing, or replacing defective items. If any component is deemed faulty by the original manufacturer, Top Trailers Ltd may delay re-installation of replacement items until all involved parties agree who is responsible for any associated reinstallation expenses.

12.5 Top Trailers Ltd will repair the defective workmanship to restore it to full working condition. Any extra work required beyond the defect repair (e.g. disassembly, reinstallation, site preparation) will be the Client’s responsibility and at their cost.

12.6 Duration of Warranty

(a) This warranty is valid for a period of twelve (12) months from the date the Client takes legal ownership of the Goods or Services, as outlined in clause 5 of the Terms and Conditions of Trade.

(b) If a Defect does not manifest within this twelve-month period, Top Trailers Ltd shall bear no further responsibility under this Warranty Against Defects. From that date onward, the Client irrevocably releases Top Trailers Ltd from all claims, losses, or damages in any way arising from or related to the Goods or Services.

12.7 Responsibility for costs

(a) Top Trailers Ltd will cover the costs directly related to repairing a confirmed Defect under this warranty.

(b) Any additional work, including but not limited to disassembly, reassembly, or site preparation required to access or repair the defect will be the responsibility of the Client. This also includes any transportation costs associated with delivering the Goods or components to and from an approved repair facility.

12.8 Rights at Law

(a) The benefits provided to the Client under this warranty are in addition to any other rights and remedies the Client may have under applicable law with respect to the Goods or Services.

(b) The Goods and Services supplied by Top Trailers Ltd come with guarantees that cannot be excluded under New Zealand Consumer Law. The Client is entitled to:

(i) A replacement or refund in the event of a major failure;

(ii) Compensation for any other reasonably foreseeable loss or damage; and

(iii) A repair or replacement if the Goods or Services fail to meet acceptable quality standards and the failure does not constitute a major failure.

13. NON-GENUINE PRODUCTS & THIRD PARTY FITTED ACCESSORIES

13.1 The Purchaser acknowledges that non-genuine parts, accessories, products, or additives (“Non-Genuine Products”) identified as such and not supplied or approved by the Food Trailer manufacturer for use in the Food Trailer are not covered by the manufacturer’s warranties in respect of such Non-Genuine Products and their use may affect the warranty provided by the manufacturer if the manufacturer considers that the Non-Genuine Products and/or their installation might affect the specifications or quality of the Food Trailer.

13.2 The Purchaser acknowledges that any parts, accessories, products, or additives identified as such and supplied or fitted by the third party (“Third Party Fitted Accessories”) following the Purchaser’s request are not covered by the manufacturer’s warranties in respect of such Third Party Fitted Accessories and their use may affect the warranty provided by the manufacturer if the manufacturer considers that the Third Party Fitted Accessories and/or their installation might affect the specifications or quality of the Food Trailer.

14. LIMITATION OF LIABILITY

14.1 The Purchaser agrees that, to the extent permissible by law, including the New Zealand Consumer Law, the Top Trailers Ltd shall not be liable for any loss, consequential loss which could result from a breach of this contract or any law by the Top Trailers Ltd.

15. CHARGE ON FOOD TRAILER

15.1 The Purchaser agrees that if for any reason the Purchaser takes possession of the Food Trailer prior to the Top Trailers Ltd receiving the Purchase Price in cleared funds, or if the Purchaser has any liability to the Top Trailers Ltd pursuant to this Contract, the Purchaser charges the Security in favour of the Top Food Trailer to secure all amounts owing by the Purchaser under this Contract, and acknowledges that the Top Trailers Ltd may register its charge over the Food Trailer on the Personal Property Securities Register.

15.2 Unless otherwise agreed in writing, if the Purchaser has not paid the whole of the Purchase Price prior to taking delivery of the Food Trailer, the Purchaser must pay the Purchase Price within 24 hours of the Purchaser taking possession of the Food Trailer.

16. PRIVACY STATEMENT

16.1 Top Trailers Ltd is an organisation bound by the Information Privacy Principles under the Privacy Act 1993 (NZ). A copy of the Principles is available for perusal at the premises of Top Trailers Ltd or from the Office of the New Zealand Privacy Commissioner.

16.2 The type of information held by Top Trailers Ltd includes that detailed within this Contract or other information necessary to establish the Customer’s identification.

16.3 The primary purpose for which Top Trailers Ltd will use this information is to facilitate the delivery of the goods that are the subject of this Contract, and to meet the requirements of government authorities and third-party suppliers associated with the supply of the food trailer and related goods.

16.4 The types of parties who may be provided with your information include relevant transport authorities, insurance companies, and suppliers of vehicles and other automotive products and services.

16.5 If you apply for finance in connection with the purchase of a food trailer, Top Trailers Ltd may provide your personal information to the financier for the purposes of arranging that finance. This information may also be disclosed to the applicable contractors and agents of the financier and Top Trailers Ltd in order to effect this contract and related goods and services.

16.6 If you have any queries or concerns about how Top Trailers Ltd manages your personal information, you should contact Top Trailers Ltd directly.

16.7 You may request access to the personal information held by Top Trailers Ltd by contacting the company.