TERMS AND CONDITIONS OF SALE
1. GENERAL  (a) The term “Cascade” refers to Cascade For Mazdaparts Limited and its subsidiaries. (b) The term “Buyer” refers to the person, firm, company, corporate entity or any other body or entity of any kind whatsoever purchasing Goods and/or Services from Cascade.  (c) The term “Contract” means these terms and conditions themselves as amended from time to time, together with any Warranty given by Cascade to the Buyer in writing (if any) and any and every invoice or other document evidencing or describing, whether by item or kind or otherwise, any Goods or Services.  (d) The term “Goods” means all vehicle parts and all other goods or other property which, in each case, are supplied by Cascade to the Buyer and, for the avoidance of doubt, in each case includes all such goods and property so supplied:  (i) whether or not described by item or kind that enables them to be identified;  (ii) which are or comprise inventory of the Buyer.  (e) The term “PPSA” mean the Personal Property Securities Act 1999.  (f) The terms “after-acquired property”, “at risk”, “perfected”, “proceeds”, “purchase money security interest”, “rights”, “security interest” and “sell” have the respective meanings given to them under, or in the context of, the PPSA.  (g) The term "Services" means all related or associated care Services provided by Cascade in respect of the Goods supplied to the Buyer and any other Services provided by Cascade to the Buyer.  (h) The term "Warranty" means a Warranty in writing given on Cascade's form and signed by Cascade and either physically delivered to the Buyer by Cascade at the time the Goods are collected or at the Buyer's nominated address or delivered to the Buyer via email to the Buyer's nominated email address. (i) The Contract forms the basis on which Cascade supplies and sells Goods and/or Services to the Buyer. Each such supply and sale shall be effected pursuant to the terms of this Contract as amended from time to time (unless in any specific case agreed otherwise in writing by a person expressly authorised to do so by Cascade). Any invoice or other document prepared by Cascade evidencing or describing any Goods or Services and any Warranty is incorporated into and forms part of the Contract.
 
2. ORDERS (a) Each order constitutes acceptance by the Buyer of the terms and conditions of the Contract.   (b) No orders may be cancelled by the Buyer except with the express consent of Cascade. (c) Where the Goods are offered from stock, the Contract is conditional upon the Goods being available at the time of receipt of the Buyer’s order.
 
3. DELIVERY  (a) Delivery of the Goods will be made at Cascade’s premises, unless otherwise stated in the Contract (in which case the delivery will be made at a place stated in the Contract). If the Buyer fails or refuses, or indicates to Cascade that the Buyer will fail or refuse, to take or accept delivery then the Goods shall be deemed to have been delivered when Cascade was willing to deliver them.  (b) Cascade shall not be responsible or liable in any way to the Buyer for delays, defaults in delivery, shortages in quantity or non delivery of the order or any part thereof nor for any direct or consequential loss or damage arising from such delays, defaults, shortages or non-delivery.  (c) Where Cascade considers that the financial condition of the Buyer so warrants, it may decline to deliver any Goods or carry out any Services unless the Buyer provides security for payment of the price that is acceptable to Cascade in its sole discretion. Cascade will in no event be obliged to make a delivery of Goods if any moneys due and payable by the Buyer under any other Contract remain outstanding.
 
4. PRICE AND PAYMENT  (a) The price payable by the Buyer for any Goods (and/or Services) pursuant to any Contract will be the price set out in the Contract or, if a written quote had been given by Cascade to the Buyer, in the written quote. All prices are exclusive of GST, freight costs, insurance charges and installation and maintenance costs. (b) The Buyer acknowledges and agrees that the prices and charges are subject to any variations in the rate of exchange affecting each order, variations in specifications or change of third party supplier, and to any costs and expenses additional to the ordinary costs of effecting delivery caused by war, government action, acts of terrorists, variation in custom duties, changes in prices of third party suppliers, act of God, substitution of Goods, shortages of supplies, increased shipping charges, premium or overseas funds or any other circumstances beyond the control of Cascade. (c) If the Buyer has an account with Cascade, the Buyer must pay in full the price for the Goods (and/or Services) no later than the 20th of the month following the date of the invoice for the Goods (and/or Services) in cleared payment. In all other cases, the Buyer must pay in full the price for any Goods (and/or Services) in cleared payment and in the form and manner accepted by Cascade before the Goods (and/or Services) are delivered in accordance with the Contract.  (d) The Buyer shall also pay all Goods and Services Tax payable by Cascade as a result of supply of the Goods and Services, including such tax chargeable, or duties assessed or levied, on the Goods and Services and on any interest payable by the Buyer.  (e) If the Buyer fails to make cleared payment in full to Cascade by the due date, the Buyer will be liable to pay to Cascade default interest at the rate of 15% per annum (1.25% per month) on a daily basis from the date the account became overdue, which will be non-compounding, until payment is made in full of the amount due (including the default interest).  (f) The Buyer will not withhold payment or claim any right of set off for Goods and/or Services claimed to be defective.  (g) Cascade will, without prejudice to any other remedy available to it at law, be entitled to treat any failure to make payment on the due date as repudiation of the Contract by the Buyer.
5. RISK, TITLE AND SECURITY INTEREST  (a) The risk in the Goods supplied by Cascade to the Buyer shall pass to the Buyer immediately when the Goods are delivered to the Buyer.  (b) Without prejudice to the liability of the Buyer to pay for the Goods (and/or Services) supplied, all Goods will remain the property of Cascade as legal and equitable owner pending cleared payment in full of all moneys due under the applicable Contract and in respect of any other sum owing by the Buyer to Cascade.   (c) Until all moneys due to Cascade are paid, the Buyer must store the Goods in such a manner that they are clearly identifiable as the property of Cascade and will keep separate records in respect of the Goods. (d) The Buyer grants to Cascade a security interest in all Goods and any proceeds arising from the Goods for payment of those moneys to secure the payment by the Buyer for the Goods and/or Services supplied by Cascade under a Contract.  (e) At the request of Cascade the Buyer will promptly do all things that Cascade may require from time to time to give effect to the Contract and to ensure that the security interest created under the Contract constitutes a perfected security interest over the Goods and a purchase money security interest in each part of the Goods to the extent of the purchase price for that part, including signing all documents and providing any information Cascade requests to enable it to complete a financing statement or a financing change statement. (f) The Buyer waives any right to receive a verification statement under the PPSA. (g) Nothing in sections 114(1)(a) (receipt of a notice of sale), 133 and 134 (reinstating this agreement) of the PPSA shall apply to the Contract.  (h) The rights of the Buyer as debtor in sections 116 (to receive a statement of account), 120(2) and 121 (to receive notice of any proposal to retain the Goods and object to such a proposal), 125-127, 129 and 131 (relating to removal of accessions) of the PPSA shall not apply to the Contract. (i) Cascade may allocate amounts received from the Buyer in any manner it determines, including in any manner required to preserve any purchase money security interest it has in any Goods.  (j) The Buyer will indemnify Cascade and pay on demand all costs incurred by Cascade (including costs on a solicitor-client basis and debt collectors' costs) incurred in registration of financing statement or a financing change statement, protection or maintenance of its security interest, or the recovery or attempted recovery of outstanding moneys and the enforcement of these terms and conditions or the security interest contained in the Contract. (k) Where the Buyer carries on business or is in trade, Cascade authorises the Buyer to sell or lease any Goods that are comprised in the Buyer’s inventory in the ordinary course of the Buyer’s business. However, the Buyer acknowledges and agrees that:  (i) this authority may be revoked by written notice from Cascade at any time if Cascade deems the credit of the Buyer to be unsatisfactory or if the Buyer is in default in the performance of its obligations under the Contract or any other agreement between Cascade and the Buyer and shall be deemed automatically revoked on the happening of any event described in clause 6 of these terms and conditions; and (ii) any proceeds of those Goods that consist of money shall be placed in a separate bank account.
 
6. DEFAULT 
(a) If the Buyer defaults in the due payment of any moneys to Cascade, whether under the Contract or otherwise, or if the Buyer defaults in the performance of its obligations under the Contract or any other contract between Cascade and the Buyer, or if any of the Goods are at risk, or if the Buyer:  (i) commits any act of bankruptcy; or  (ii) suspends or ceases to conduct its principal business, or threatens to do so; or  (iii) becomes or is presumed to be insolvent; or (iv) enters into any composition or arrangement with its creditors; or  (v) (in the case of a company) does any act which would render it liable to be wound up or if a resolution is passed or proceedings are commenced for the winding up of the Buyer or if a receiver shall be appointed over all or any of its assets or the Buyer is placed into administration;  Cascade, without prejudice to any other right it has at law or in equity, may, at its option, suspend or terminate the Contract, and payment for the Goods delivered and work or Services performed up to date of such suspension or termination and any other moneys payable hereunder shall immediately become due and payable. All costs and expenses of or incurred by Cascade as a result of any action taken by Cascade in enforcing its security interest shall be payable by the Buyer upon demand. Any suspension of the Contract by Cascade shall not prevent it terminating the Contract during the period of suspension.  (b) At any time after a default occurs, Cascade may (whether or not Cascade has exercised any other right) appoint any person to be a receiver of all or any of the Goods. In addition to, and without limiting or affecting any other powers and authorities conferred on a receiver (whether under the Receiverships Act 1993 or at law or otherwise), a receiver has the power to do all things in relation to the Goods as if the receiver has absolute ownership of the Goods.
 
7. INSURANCE 
(a) Where the Goods are sold on credit to the Buyer, such Buyer must keep the Goods in which Cascade has a security interest insured in the names of Cascade and the Buyer for their respective rights and interests.   (b) If any of the Goods in which Cascade has a security interest are damaged or destroyed, Cascade shall be entitled, without prejudice to any of its rights or remedies under the Contract, to receive all insurance proceeds which are payable in respect of such Goods (whether or not the purchase price of such Goods has become payable under the Contract) and the production of this Contract
by Cascade shall be sufficient evidence of Cascade’s right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with Cascade. 
 
8. LIABILITY AND WARRANTY
(a) Subject always to clause 8(b), Cascade will have no liability of any kind whatsoever (including for negligence) to the Buyer, other than for direct losses arising from a breach of the Contract (including for a breach of Warranty, if any). Without limitation, Cascade will have no liability for: (i) any indirect, special or consequential loss or damage (whether for loss of profit, loss of business or revenue, loss of income, loss of use, loss of product, loss of opportunity, loss of investment, depletion of goodwill, loss of anticipated or actual savings, cost of removal, cost of installation, incurring of expense or otherwise)) which may in any way arise for any reason, including out of the Goods or Services supplied or any defect in the same; or (ii) any statement or recommendation made or advice, supervision or assistance given by Cascade, its employees, agents, transport contractors or representatives, whether oral or written.  (b) Cascade’s maximum aggregate liability to the Buyer for any reason whatsoever, including for defective Goods or Services and loss caused by defective Goods or Services, whether under this Contract, any other agreement, tort (including negligence), breach of statutory duty or law or otherwise is limited to, at Cascade's option, either:  (i) replacing, at the premises of Cascade, any Goods which the Buyer is entitled to reject or performing the Services again; or  (ii) refunding an amount up to the sale price of those Goods that are defective or the defective Services that has been paid by the Buyer.   (c) No claim by the Buyer based on defective Goods or Services will be allowed unless:  (i) the claim is notified in writing to Cascade within 3 months of delivery (or within any warranty period in the Warranty) to the Buyer quoting the invoice number; and (ii) Cascade is given a reasonable opportunity to investigate the claim. (d) All conditions and warranties as to the quality of the Goods or Services supplied or fitness or suitability for any particular purpose, whether expressed or implied, whether statutory or otherwise and whether oral or in writing are hereby expressly excluded to the fullest extent permitted by law unless otherwise provided in a Warranty. (e) The Buyer must satisfy itself that the Goods as ordered are fit and suitable for the purpose for which they are required. Cascade makes no warranties or representation and expressly negates any implied or expressed condition that the Goods will be suitable for a particular purpose or use for which the Buyer may use them. The Buyer accepts all risk and responsibility for consequences arising from the use of the Goods whether singularly or in combination with other goods and Services.  In particular, the Buyer acknowledges that it is not always possible for Cascade to assess and test the functionality of any Goods taken from damaged vehicles, and agrees that the Buyer accepts all risk and responsibility (including the responsibility to test (or engage a professional auto workshop to test) the functionality of such Goods) arising in relation to the use of such Goods. (f) Where Cascade supplies the Buyer with second hand Goods the Buyer acknowledges that the Buyer has had full opportunity to inspect the same and accepts the second hand Goods with all faults. The Buyer acknowledges that no warranty is given (unless recorded in writing and signed by Cascade specifically granting a warranty in respect of the second hand Goods) as to the quality or suitability for any purpose of the second hand Goods. Any implied warranty, statutory or otherwise, is expressly excluded to the extent permitted by law. (g) The Buyer acknowledges and agrees that any Goods that are safety critical vehicle components including brakes and brake system components, engines, transmissions, steering wheels and steering system components, airbags and airbag system components, suspension components and seat belts ("Safety Components") purchased by the Buyer from Cascade must be fitted and tested in a professional auto workshop by a person who is suitably qualified to carry out such fitting and testing, and that no warranty (including any Warranty) will apply in respect of such Safety Components unless and until such Safety Components are so fitted and tested and the safety and suitability of those Safety Components have been confirmed in writing by the professional auto workshop that fitted and tested those Safety Components.  Cascade will have no liability of any kind whatsoever to the Buyer for any losses arising from the supply of the Safety Components unless the Buyer has fully complied with its obligations under this clause. The Buyer indemnifies and holds harmless Cascade and its directors, officers and employees for any loss whatsoever suffered by Cascade due to the Buyer's breach of its obligations under this clause. (h) No Warranty (or statutory warranty) applies in circumstances where: (i) the Goods were used for a purpose other than for which they were intended; (ii) the defect has arisen due to an accident or any wilful damage, negligence, neglect or default of the Buyer or any third party or acts or omissions outside the control of Cascade; (iii) the defect has arisen due to the incorrect installation of the Goods or abnormal working conditions;  (iv) the defect has arisen due to normal metal corrosion or normal wear and tear on the Goods; (v) the Goods have not been stored or maintained as recommended by Cascade or the manufacturer; (vi) the Buyer is in breach of any agreement with Cascade (including non-payment for any Goods and Services); (vii) the loss or damage arises during the loading or unloading of the Goods; (viii) the Buyer has rejected a recommendation by Cascade that testing of a particular type or extent be carried out on such Goods, where it is reasonably likely that such deficiency or failure, would have been identified by such recommended testing if carried out;  (ix) the Buyer has failed to fit and test the Goods listed in clause 8(g) in accordance with the requirements set out in that clause; or (x) the matter arising or any claim brought is outside the applicable period specified in clause 8(c)(i).
 
9. CONSUMER GUARANTEES ACT 1993 (a) Where the Contract would otherwise be subject to the provisions of the Consumer Guarantees Act 1993 and where any supply pursuant to the Contract is a supply for business trade purposes,
the Buyer agrees that the Goods are supplied to the Buyer for business and/or trade purposes in terms of sections 2 and 43 of the Consumer Guarantees Act 1993 and the provisions of the Consumer Guarantees Act 1993 will not apply as between Cascade and the Buyer. (b) Where the Buyer supplies the Goods in trade to a person acquiring them for business purposes, it must be a term of the Buyer’s contract with the purchaser that the Consumer Guarantees Act 1993 does not apply in respect of the Goods.  (c) Where the Buyer supplied the Goods to any other person, the Buyer must not give or make any undertaking, assertion or representation in relation to the Goods without Cascade’s prior approval in writing. The Buyer shall pass on any written product information supplied by Cascade to the purchaser.  (d) Where any of the Goods are subject to any express Warranty given by Cascade to remedy any defect by repairing or replacing the Goods with Goods of identical type then the ultimate consumer shall not be able to exercise its remedies set out in the Consumer Guarantees Act 1993 without first giving Cascade a reasonable opportunity to remedy the defect by repair or replacement in accordance with its express Warranty. (e) The Buyer agrees to indemnify Cascade against any liability or cost incurred by Cascade under the Consumer Guarantees Act 1993 as a result of any breach by the Buyer of the obligations contained in these terms.  (f) Nothing in these terms is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention. 
 
10. FAIR TRADING ACT 1986 (a) Where the Contract would otherwise be subject to the provisions of the Fair Trading Act 1986 and where Goods and/or Services are supplied and acquired in trade. Cascade and the Buyer agree that sections 9, 12A, 13, or 14(1) of the Fair Trading Act 1986 do not apply to any Contract between Cascade and the Buyer. (b) Nothing in these terms is intended to have the effect of contracting out of the provisions of the Fair Trading Act 1986 except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention. 
 
11. PATENTS AND COPYRIGHT (a) Copyright in all drawings, specifications and other technical information provided by Cascade concerning the Contract is vested in Cascade. 
 
12. INFORMATION  (a) The Buyer acknowledges that it has authorised Cascade to:  (i) collect information about the Buyer from any other person;  (ii) use any information it holds about the Buyer; and  (iii) disclose information about the Buyer to any person in the course of Cascade’ business, including credit assessment, debt collecting and direct marketing activities.  (b) Where the Buyer is an individual, the Buyer is entitled under the Privacy Act 1993 to access and request the correction of any personal information which Cascade holds about the Buyer. 
 
13. RETURNED GOODS 
(a) Except as may be required by law, no returned Goods shall be accepted by Cascade unless such Goods are returned within 7 days of the date of delivery and in the same condition and original packaging that they were in when delivered to the Buyer, and unless accompanied by a Cascade invoice or packing slip provided to the Buyer and Cascade is satisfied (acting reasonably) that it supplied the Goods. (b) Goods specifically procured for the Buyer at the Buyer's request will not be returnable. (c) The Buyer will not be entitled to return the Goods for any wear and tear or for any defect in the Goods.  The sole remedy of the Buyer in case of defective Goods will be to have such Goods replaced or refunded by Cascade in accordance with clause 8(b). (d) Any freight or transportation charges shall not be refunded to the Buyer. (e) Cascade will charge an handling fee of 20% of the purchase price in respect of all returned Goods that were correctly supplied.
 
14. CONFLICT  (a) These terms and conditions are paramount, &, to the extent that there is any conflict between any provision of them and any quote, invoice or other document evidencing a sale or purchase or describing any Goods or Services, these terms & conditions will always prevail. Further, if there is any other document or arrangement which conflicts with the Contract (including a Buyer's terms of trade), the Contract shall always prevail.   (b) These terms and conditions shall apply to all sales of Goods and Services despite any verbal indication to the contrary by any person acting or purporting to act on behalf of Cascade.
 
15. AMENDMENTS (a) These terms and conditions may be amended by Cascade from time to time by publishing on its website (www.cascadeformazda.co.nz) the then current terms and conditions.   (b) Any purchase of Goods or Services by the Buyer will be subject to the terms and conditions published on the Cascade website (www.cascadeformazda.co.nz) on the date the Buyer places an order for Goods.
 
16. GOVERNING LAW AND JURISDICTION (a) The Contract and these terms and conditions shall be governed by the laws of New Zealand and the New Zealand courts shall have sole jurisdiction to adjudicate in respect of any dispute arising from the Contract.