NYPO ENTERPRISES LIMITED T/A AFFORDABLE FOOD TRAILERS – TERMS AND CONDITIONS
1. Introduction
(a) This website (Site) is operated by NYPO Enterprises Limited t/a Affordable Food Trailers (Company Number 5873231) (we, our or us). These terms and conditions (Terms) are between us and you, the person placing an order for products through the Site. If you are using the Site on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
2. Use of the Site
(a) You accept these Terms by placing an order via the Site.
(b) You must not use the Site and/or place an order for products through the Site unless you are at least 18 years old.
(c) When using the Site, you must not do or attempt to do anything that is unlawful or inappropriate, including:
i. anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;
ii. using the Site to defame, harass, threaten, menace or offend any person;
iii. using the Site for unlawful purposes;
iv. interfering with any user of the Site;
v. tampering with or modifying the Site (including by transmitting viruses and using trojan horses);
vi. using the Site to send unsolicited electronic messages;
vii. using data mining, robots, screen scraping or similar data gathering and extraction tools on the Site; or
viii. facilitating or assisting a third party to do any of the above acts.
3. Orders
(a) You may order products from us as set out on the Site. If you place an order for products on our Site, you are making an order to purchase the product(s) for the price listed on the Site, or provided in a quote to you for a custom order (including the delivery fees or other applicable charges and taxes).
(b) We may, at our absolute discretion, accept or reject an order. If we need to reject your order, we will notify you within a reasonable time after your order is placed. Once we accept an order, a binding agreement is formed for the supply of products to you in accordance with these Terms.
(c) It is your responsibility to check the order details, including selected products, delivery details and pricing, before you submit your order through the Site.
(d) All orders made through the Site are subject to availability. We do our best to keep products in stock and to keep the Site up to date with the availability of products.
(e) We may cancel, at any time before delivery and for whatever reason, an order that we have previously accepted, including where there is a considerable delay in dispatching your order, if for any reason we cannot supply the products you order (for example for an event beyond our reasonable control) or if products ordered were subject to an error on our Site (for example in relation to a description, price or image). We will contact you using the details you provided when you placed your order.
4. Price and payment
(a) You must pay us the purchase price of each product you order, plus any applicable delivery costs as set out on the Site (the Price) in accordance with this clause and any invoice or payment terms provided. All amounts are stated in New Zealand dollars and New Zealand GST (where applicable) will be set out separately.
(b) You must pay a percentage of the Price (Deposit) upfront using one of the methods set out on the Site, with the balance
of the Price payable before pick-up or delivery.
(c) The Deposit is non-refundable.
(d) You must not pay, or attempt to pay, the Price by fraudulent or unlawful means.
(e) The payment methods we offer are set out on the Site. We may offer payment through a third-party provider. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third- party payment method may be subject to additional terms and conditions.
(f) We do not store any credit card details, and any payment information is collected and stored through our third-party payment processor.
(g) If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
i. after a period of 5 Business Days from the relevant due date, cease supplying the Goods, and recover, as a debt
due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs).
ii. charge interest at a rate equal to the Reserve Bank of New Zealand’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or
iii. enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.
(h) When applicable, Goods and Services Tax under the Goods and Services Tax Act 1985 (GST) payable will be clearly shown
on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.
5. Delivery, title and risk
(a) If you are responsible for collecting the product from us, you must collect the products by the time agreed between the Parties, and risk in the product will pass to you when you have collected the product from the agreed collection location. You will be responsible for the costs of collection.
(b)We normally advise products can be picked up within 3 weeks of receiving an order, unless otherwise noted on the Site (Completion Timeframe). Any Completion Timeframes displayed on the Site are estimates only, based on the information provided by the delivery company.
(c) If you need to change the pick up day or please notify us immediately in writing.
(d) Title to the products will remain with us until you have paid the Price in full for the products. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the products.
(e) If you do not pick up your product within 21 days after being advised of completion, we reserve the right to charge you interest for storing the product at a rate of 14% per annum, for each day the product is store on site. If the product is not collected with in 21 days then it will be deemed that you have forfeited the product and we reserve the right to [retain the deposit] and on-sell the product.
6. New Zealand Consumer Law
(a) We do not accept returns for change of mind or other circumstances. However, you may have rights to a repair, replacement or refund under New Zealand consumer laws.
(b) Where you return products to us to seek a New Zealand consumer law remedy, you will need to cover any associated costs (for example delivery costs) of you returning the products to us.
(c) If a part of the product requires repair, you agree to notify us first with the issue. We will advise you, if it comes under a New Zealand consumer law remedy, who our preferred repairer is. Should the product not require repair, and it is found to be user error, you agree to cover the costs associated with engaging a repair person.
(d) If you are a business, you agree and represent that you are acquiring the Goods for the purposes of trade, and we and you both agree that:
i. to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986 do not apply to the supply of the Goods or these Terms;
ii. Part 3 of the Contract and Commercial Law Act 2017 is expressly excluded from application to the Goods and these Terms; and
iii. it is fair and reasonable that the Parties are bound by these Terms, including this clause.
7. Confidential Information
(a) Each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.
(b) This clause does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 7(a).
8. Limitations
(a) Despite anything to the contrary, to the maximum extent permitted by law:
i. neither Party will be liable for Consequential Loss;
ii. each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party, including any failure by that Party to mitigate its losses; and
iii. our aggregate liability for any Liability arising from or in connection with the Terms (including the products and/or the subject matter of the Terms) will be limited to, and must not exceed, the portion of the Price paid by you to us for the products the subject of the relevant claim.
(b) We will provide you with the product, with electric components installed and certified. You acknowledge and agree that after Delivery we have no liability in relation to the electrical components to the product except as provided under New Zealand consumer laws.
(c) You are responsible for all required compliance and food plans with any food safety registration or council compliance required for your use of the Product, and we accept no liability in relation to same, or for ensuring the product is fit for purpose.
(d) You acknowledge and agree that you will be responsible for ensuring the product is licenced and/or registered (where applicable) with the required transport authorities and we accept no liability in relation to obtaining the required registrations.
(e) You agree that any information contained on the Site and any materials provided with our products (collectively Materials) are provided for general information purposes only and do not take into account your personal circumstances. The Materials are not intended to be advice and they are not intended to be a substitute for professional advice. You are solely responsible for determining the suitability of our products for your circumstances and your reliance on the Materials is at your own risk.
9. Intellectual property
(a) You acknowledge and agree that any intellectual property (including copyright and trademarks) developed, adapted, modified or created by us or our personnel (including in connection with the Terms, any content on the Site, and the products) (Our Intellectual Property) will at all times vest, or remain vested, in us.
(b) We authorise you to use Our Intellectual Property solely for your own personal, [non-commercial] use, and in the manner in which it was intended to be used.
(c) You must not use Our Intellectual Property for commercial purposes, including, for example, to advertise your own business, for re-sale, or for any other revenue generation activity.
(d) You must not, without our prior written consent:
i. copy, in whole or in part, any of Our Intellectual Property;
ii. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
iii. breach any intellectual property rights connected with the Site or the products, including (without limitation)
altering or modifying any of Our Intellectual Property; causing any of Our Intellectual Property to be framed or
embedded in another website; or creating derivative works from any of Our Intellectual Property.
(e) Nothing in the above clause restricts your ability to publish, post or repost Our Intellectual Property on your social media page or blog, provided that:
i. you do not assert that you are the owner of Our Intellectual Property;
ii. unless explicitly agreed by us in writing, you do not assert that you are endorsed or approved by us;
iii. you do not damage or take advantage of our reputation, including in a manner that is illegal, unfair, misleading or deceptive; and
iv. you comply with all other terms of these Terms.
10. Term and termination
(a) This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
i. the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting
Party; or
ii. the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
(b) Upon expiry or termination of this agreement:
i. without limiting and subject to your Consumer Law Rights, any payments made by you to us for the products already supplied are not refundable to you;
ii. you are to pay for all Goods supplied prior to termination, including Goods which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
iii. by us pursuant to clause 10(a), you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees);
(c) Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
(d) This clause will survive the termination or expiry of this Agreement.
11. General
(a) Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by us, the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you placed your order.
(b) Assignment: Subject to clauses 11(c), a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
(c) Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
(d) Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
(e) Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided when you submitted your order or in your account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
(f) Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notified the other Party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
(g) Feedback and complaints: We are always looking to improve our services. If you have any feedback or a complaint, please notify us on our contact details below and we will take reasonable steps to address any concerns you have.
(h) Governing law: These Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
(i) Notices: Any notice given under these Terms must be in writing addressed to the address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
(j) Publicity: Despite clause 7 you agree that we may advertise or publicise the broad nature of our supply of the products to you, including on our website or in our promotional material.
(k) Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
(l) Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
(m) Subcontracting: We may subcontract the supply of any part of the products without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
(n) Third party sites: The Site may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Site, such third party provides the goods and services to you, not us.
12. Definitions
(a) Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probably results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us the Price under these Terms will not constitute “Consequential Loss”.
(b) Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control.
(c) Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgement (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
13. Warranties
(a) Subject to clause 14, the Company warrants to the Customer that the Goods will be free from manufacturing defects for a period of 12 months from the date of delivery.
(b) The Customer warrants to the Company that it is solvent and able to pay its debts as they become due and is properly authorised to enter into this document and each Contract.
14. Exclusion of Warranties and Liability
(a) To the fullest extent permitted by law and except to the extent expressly provided in clause 8, all warranties and representations including those expressed or implied by law, in respect of Goods are excluded.
(b) The Company gives no representation or warranty whatsoever as to the condition or quality of the Goods or as to their suitability or fitness for their ordinary or special use or purpose.
(c) Notwithstanding any other provision of these Terms, the Company shall not be liable:
i. where the Customer has altered or modified the Goods or have subjected them to any unusual or non-recommended use, storage or handling; or
ii. for loss caused by any factors beyond the reasonable control of the Company, including environmental damage; or
iii. external causes, including accident, abuse or misuse;
iv. normal wear and tear, an act of God, fire, flood, earthquake, war, act or violence or any similar occurrence;
v. for any indirect or consequential loss of any kind; or
vi. where the terms of any written warranty have not been complied with, or any Company instructions (including as to storage or handling) not complied with.
(d) In the event that the Company is found to be liable under any Contract (including for rejected Goods), the Company’s total liability is limited to either (at the Company’s election):
i. replacing the defective or damaged Goods; or
ii. refunding the price of the defective or damaged Goods.
(e) 14.5 In the event that a Customer wishes to make a claim under the Warranties, the Customer must contact the Company within the warranty period as set out in clause 8.1, detailing the reason for the claim.
(f) 14.6 If the Company agreed that the Warranties apply, any Goods returned to the Company must be returned with freight paid. Where the Company elects to replace defective Goods, the Company will use reasonable endeavours to replace the Goods, as soon as practical, but will not be liable for any delay in replacing the Goods.
(g) 14.7 The Company will not accept the return of any Goods unless they are defective Goods or with the express written consent of the Company.
For any questions and notices, please contact us at:
NYPO Enterprises Limited t/a Affordable Food Trailers (Company Number 5873231)
Email: info@affordablefoodtrailers.co.nz
Last update: 25 January 2024
