TERMS OF TRADE


INTERPRETATION

Definitions:
1.1. Core Range List means the core range list of all Products available for order pursuant to a
Quote or Purchase Order.
1.2. Customer means the person or entity specified as Customer above.
1.3. Delivery means the date of actual delivery to you of the Products.
1.4. Force Majeure means an event that is beyond the reasonable control of us excluding an
event to the extent that it could have been avoided by us taking reasonable steps or
reasonable care.
1.5. Guarantor means the person or persons specified as Guarantor above.
1.6. PPSA means the Personal Property Securities Act 1999.
1.7. Products means specified products in any Order which may include craft beers, accessories,
in accordance with our Core Range List.
1.8. Purchase Order means your form of purchase order provided to us which complies with the
requirements set out in clause 3.
1.9. Order means our Quote or your Purchase Order which has been accepted in accordance
with clause 4.
1.10. Quote means our form of quotation provided to you which complies with the requirements
set out in clause 3.
1.11. Terms means these terms of trade and includes any Order.
2. Interpretation:
2.1. References to ‘you’ or ‘your’ means the Customer.
2.2. References to ‘we’, ‘us’ or ‘our’ means Two Tykes Limited.
2.3. Words in the singular include the plural and vice versa.

ORDERS

3. An Order is our Quote or your Purchase Order which specifies:
3.1. The Products to be supplied .
3.2. The estimated date of Delivery or where there is no estimated date of Delivery stipulated,
then within a reasonable time.
3.3. The location of Delivery.
3.4. The Price.
3.5. Any variations to these Terms.
4. Upon acceptance by you of our Quote by email to accounts@twothumb.com or acceptance by us of
your Purchase Order to your email address, you agree that these Terms will apply to that Order and
continue until the obligations of both of you and us under these Terms have been satisfied.
5. If you request a variation to an Order, we will advise you whether or not we agree to such request
and the terms on which we would agree to such variation of the Order. For the avoidance of doubt,
if no agreement is reached between you and us as to such variation of an Order, then the original
terms of the Order will continue to apply.
6. You may cancel any Order prior to the date of Delivery at no cost to you. If you cancel on or after the
date of Delivery, you agree that we are entitled to:
6.1. examine the Products to ensure the Products are fit for re-sale prior to agreeing to such
cancellation; and
6.2. charge such reasonable shipping and handling costs at our discretion to collect the Products.

DELIVERY / TITLE / RISK

7. We will manufacture the Products in accordance with our Core Range List and endeavour to deliver
the Products by the estimated date of Delivery and to the location specified in the Order.
8. We will provide you with a GST tax invoice for the Price at Delivery.
9. The legal and beneficial ownership in the Products we deliver to you remains with us until we have
received payment of the Price in full and prior to receiving payment of the Price in full you agree to
ensure the Products remain readily identifiable.
10. If you fail to pay the Price in full to us, you agree that without prejudice to any other rights we have
at law or in equity, we may enter the location where the Products are stored for the purpose of
recovering and taking possession of the Products.
11. The risk of loss of or damage to the Products will pass from us to you at Delivery.

PAYMENT

12. You must pay the Price to us by the 20 th of the month following Delivery by direct credit to Westpac
bank account number 03-1599-0111990-000 in New Zealand Dollars; but transmission of any
payment made by you to us will not constitute payment and you remain fully liable for the full
amount payable until our bank acknowledges to us that the payment has been cleared.
13. You must not withhold payment, or make deductions from the Price, or set off any amount owed by
you to us whether by equitable set-off or otherwise, without our prior written consent.
14. Interest at the rate of 5% per annum must be paid by you to us on all money owing by you to us for
any reason from the date payment is due under this clause until the date all money and interest
payable by you to us is paid. In addition you will pay us a fee of $200.00 being a processing fee for
the administrative costs with your payment default. You agree that the interest rate and fee
specified in this clause reasonably reflects by way of liquidated damages
15. Interest payable under clause 14 shall be calculated:
15.1. As accruing from day to day; and
15.2. May be compounded to and become part of the principal debt at the end of each month of
default; and
15.3. May be claimed in the same manner both before and after any judgment is obtained.

16. You will also be liable to pay all actual expenses and legal costs we incur in relation to taking any
steps to enforce these Terms and in obtaining payment from you if you breach your payment
obligations to us.

 

PERSONAL PROPERTY SECURITIES ACT 1999

17. You acknowledge these Terms grant to us a security interest (“Security Interest”) (as that term is
defined in the Personal Property Securities Act 1999 (“PPSA”) in the Products.
18. You will at our request promptly execute any documents, provide all necessary information and do
anything else required by us to ensure the Security Interest constitutes a Perfected Security Interest
(as that term is defined in the PPSA) and which will have priority over all other Security Interests in
the Products.
19. You agree, to the extent permitted by law, that you shall waive any rights you may have under
sections 116, 119, 120(2), 121, 125, 126, 127, 131 and 132 of the PPSA and enforcement of any
Security Interest.
20. You agree that nothing in sections 113, 114(1)(a), 117, 133 and 134 of the PPSA apply to these Terms.
21. You waive the right to receive a copy of any Verification Statement (as that term is defined in the
PPSA) confirming registration of a financing statement as that term is defined in the PPSA.

WARRANTIES

 

22. You warrant that you have full power and authority to enter into, and perform your obligations under
these Terms.
23. Following Delivery you will have 3 days to examine the Products to ensure that they comply with
these Terms. Following 3 days, you will be deemed to have accepted the Products.
24. To the maximum extent permitted by law our warranties are limited to those set out in these Terms,
and all other conditions, guarantees or warranties whether expressed or implied by statute or
otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly
excluded and, to the extent that they cannot be excluded or that we are in breach of any warranties
given in these Terms, our liability is limited to:
24.1. Supplying any non-complying Products again to you on the basis that the original supplied
non-complying Products are returned to us ; and
24.2. Paying the costs of having the Products supplied again to you; or (and at our option)
24.3. Refunding the portion of the Price of any non-complying Products on the basis that the
original supplied non-complying Products are returned to us.
25. You agree and represent that you are acquiring the Products, and accepting these Terms, for the
purpose of trade and that the Consumer Guarantees Act 1993 and any other applicable consumer
protection legislation does not apply to the supply of the Products or these Terms.

 

LIABILITY

 

26. We will not be liable to you under or in connection with these Terms or the Products for any:
26.1. Loss of profit, revenue, savings, business, use, and/or goodwill; or
26.2. Consequential, indirect, incidental or special damage or loss of any kind.
27. We will not be responsible, liable, or held to be in breach of these Terms for any failure to perform
our obligations under these Terms or otherwise, to the extent that the failure is caused by you failing
to comply with your obligations under these Terms, or by the negligence or misconduct of you or
your personnel.

GENERAL

 

28. We are not liable to you for any failure to perform our obligations under these Terms to the extend
caused by Force Majeure.
29. No person or entity has any right to benefit under, or to enforce, these Terms, other than you.
30. For us to waive a right under these Terms, that waiver must be in writing and signed by us.
31. We are your independent contractor, and no other relationship exists under these Terms.
32. If we need to contact you, we may do so by email. You agree that this satisfies all legal requirements
in relation to written communications.
33. These Terms, and any dispute relating to these Terms or the Products, are governed by and must be
interpreted in accordance with the laws of New Zealand.
34. If any part of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is
deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
If a modification is not possible, the part or provision must be treated for all purposes as severed
from these Terms. The remainder of these Terms will be binding on you.
35. These Terms set out everything agreed by you and us relating to the Products and supersede or
cancel anything discussed, exchanged or agreed prior to the date of the Order. You have not relied
on any representation, warranty or agreement relating to the Products that is not expressly set out in
these Terms, and no such representation, warranty or agreement has any effect from the date of the
Order. Without limiting the previous sentence, you agree that we contract out of sections 9, 12A and
13 of the Fair Trading Act 1986.
36. You may not assign, novate, subcontract or transfer any right or obligation under these Terms
without our prior written consent. We may assign, novate, subcontract or transfer any right or
obligation under these Terms.

GUARANTEE

 

37. Where a Guarantor has signed these Terms, the Guarantor agrees to irrevocably and unconditionally
guarantee to us, as principal debtor, the due and punctual payment of all moneys owing to us by the
Customer and the due observance and performance by the Customer of all of the Customer’s
obligations under these Terms. This guarantee will remain in full force and effect until all monies
owing to us by the Customer have been paid.
38. Where there is more than one Guarantor named, then the liability of the Guarantors to us is joint and
several.