Terms and Conditions
This agreement ("Agreement") is a contract between you and Evolution Motorsports Limited ("the Company"), and applies to any and all use by you (howsoever described) of the website www.evolutionmotorsports.co.nz (“website”) and your order for the purchase of goods and products (“Item”) through this website.
2 Acceptance of Terms
2.1 You must read, agree with, and accept all of the terms and conditions contained in this Agreement, before you may use this web site, or become a customer of the Company. You confirm that you are 18 years of age and have the full legal capacity to agree to and accept all the terms and conditions contained herein. Use of this website shall be deemed acceptance of the terms of this Agreement.
2.2 If you do not agree to be bound by the terms and conditions of this Agreement, you must not use or access this website.
2.3 The Company reserves the right to unilaterally amend some or all of the terms of this Agreement at any time by posting the amended terms on the web site without notice to you. You expressly acknowledge that it is your obligation to ensure that you are familiar with the terms and conditions of this Agreement, as amended from time to time, prior to using this website. Your use of the website constitutes your acceptance of, and agreement to be bound by this Agreement (as amended novated or varied from time to time).
2.4 Except as expressly provided in this Agreement and except for any warranty given by the manufacturer of the Item to you as a consumer (within the meaning of the Consumer Guarantees Act 1993), all implied warranties, terms, conditions, descriptions and representations as to quality, fitness or suitability for purpose, tolerance of any conditions, merchantability or otherwise (whether of a like nature or not) and whether express or implied by law, trade custom or otherwise are expressly excluded to the fullest extent permitted by law.
3 Exclusion of Liability
3.1 Your use of the website is at your own risk. To the fullest extent permissible by law the Company makes no warranties, either express or implied, representations or undertakings in respect of the contents available on the website (“Contents”) which are provided on “as is” and “as available” without any such warranties. The Company will not be responsible or liable for your reliance on the Contents, or for any damage or loss caused by the accuracy, completeness or timeliness of the Contents. The Company does not warrant that the website will be uninterrupted or error-free, that defects will be corrected, or that its server or the website are secure from hacking or any form of unauthorised access or free from viruses that may be harmful to your computer. The Company is not responsible or liable for any damage to, viruses that may infect, your computer or other property on account of your use of the website.
3.2 The Company shall not in any event (including, without limitation, negligence) be liable for any loss of data, revenue, profits or lost business or any direct, incidental, special, consequential, indirect or punitive damages that result from:
Your use of or inability to use the website;
Any transaction entered into or through the website;
Your reliance on or use of the Contents provided on the website;
Unauthorised access to or alteration of any communications, registration data or any other data provided by you to the Company from time to time;
The conduct of any third party in relation to the use of the website;
Errors, omissions or other inaccuracies in the website and/or the Contents..
4 Consumer Guarantee Act 1993
4.1 The terms in this Agreement are not intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 (“Act”) except to the fullest extent permitted by the Act and the terms herein are modified to the extent necessary to give effect to that intention. Where you supply the Items purchased under the terms herein as goods in trade to a person acquiring them for business purposes, you must state in your agreement with that purchaser that the provisions of the Act do not apply in respect of your supply of such Items. You agree to indemnify the Company against any liability or costs incurred by the Company under the Act as a result of any breach by you of the obligations contained in the terms herein stated.
4.2 Where you purchase the Items for business purposes, you agree that the provisions of the Act do not apply. Where you do not acquire the Items for business purposes and you are purchasing the Items as a consumer (as defined under the Act), then to the fullest extent permitted by law, the Company’s liability for breach of any warranty or condition (express or implied) which cannot be so excluded, shall at the Company’s absolute discretion, be limited to the replacement of the Items or the supply of the equivalent Items or the repair of such Items or the payment of cost of having the Items repaired.
5 Price, Payment and Delivery
5.1 All orders are restricted to purchasers in New Zealand. Any quotation, price list or other information on the Company’s web site is not an offer which you can accept. All orders made on the Company’s website shall constitute an offer which the Company may in its absolute discretion accept. The Company reserves the right to decline to trade with any company or person and may decline to accept any order without justification. Any acceptance of an offer by the Company shall be subject to product availability and shall be conditional upon receipt of the Price pursuant to terms herein. Nothing on the Company’s website shall be construed as a recommendation to use any particular Item. In ordering the Item, you acknowledge that you are responsible for ensuring that the Item(s) you order are fit for the purposes for which you intend to use them. You undertake to ensure that the Item purchased shall not in any way be used for any illegal purpose or shall not be used in any manner in contravention of the prevailing laws. The Company accepts no liability in this regard (except to the extent specifically required by law). The Company reserves the right to change any quotation, price list, features, specifications or other information on the website at any time without prior notice.
5.2 Payment terms are cash with order. Payment of the Price shall be made by direct credit to the Company’s account as may from time to time be advised by the Company. All payments must be received by the Company before the Items are delivered to you. All prices listed on the Company’s website are in New Zealand Dollars and are GST inclusive, unless otherwise stated.
5.3 In the event of any error in the description or pricing of any Item listed on the website is incorrect or there is an error in the pricing, the Company shall have the right to refuse or cancel any undelivered orders placed on such Items. The Company shall have the right to refuse or cancel such orders at any time prior to delivery regardless of whether or not the order has been confirmed or payment has been received. If payment has been received the Company shall refund such payment received.
5.3 The Item shall be delivered to the address specified by you and the Company has the right to select the method of delivery and the carrier.
5.4 Title to the Items shall pass to you from the time of delivery of the Items and you shall bear the risk of any loss or damage to the Items from such time.
5.5 The Company shall not be liable for any delay in the supply or delivery of the Item for any reason whatsoever including negligence by the Company. Any time for delivery of the Item shall be approximate only.
6 Cancellation and Returns
6.1 You may not cancel orders once accepted by the Company. The Company may allow an order to be cancelled at its discretion, subject to the Company recovering from you all costs incurred by the Company howsoever arising from your cancellation.
6.2 If you wish to return the Item to the Company due to a change of mind or for incorrect ordering, the Company may, at its absolute discretion, allow a credit or a refund on the following conditions:
6.2.1 You must contact the Company in advance ( firstname.lastname@example.org ) and obtain a returns number (to be quoted on all paperwork);
6.2.2 Returns must be made within 7 days of the date of delivery (as stated on the delivery documentation). The Item must be returned in its original packaging, unused and in a condition which will enable the Item to be immediately fit for re-sale;
6.2.3 The Item must be adequately packed and dispatched freight prepaid, clearly labelled, to an address designated by the Company. If the Company, in its absolute discretion, allows a credit or refund, the Company shall be entitled to deduct a restocking fee of 30% of the invoice value
6.3 You must inspect the Item as soon as reasonably possible after delivery and shall, within 7 days of the date of delivery (as stated on the delivery documentation) contact the Company in advance advising the Company of:
6.3.1 any defect in the Item that is apparent on reasonable examination. (See clause 6.4 on terms of warranty)
6.3 2 any damage to the Item during delivery.
6.3.3 any Item that has not been delivered in accordance with your order.
The Company shall, at its absolute discretion, replace the Item or refund the Price provided you first obtain a returns number from the Company. The Company must receive the Item(s) correctly packed in their original packing at an address designated by the Company within 14 days of the date of delivery together with all accessories, instruction manual and packaging intact.
If you fail to give notice in the manner set out above you shall be deemed to have accepted the relevant order as being delivered in accordance with your instructions and to have accepted the Item as being free from all apparent defects. The remedies set out above are your exclusive remedies (to the extent permitted by law) in the circumstances described above. The Company shall not be liable for any other losses, damages or expenses to you or any other party.
6.4 Any claim under the manufacturer’s warranty, is subject to the claim being notified in writing to the Company within the period as stated in the manufacturer’s warranty. All Items, particularly those relating to mechanical parts, are recommended to be installed by a qualified mechanic and any claims for warranty under this clause shall be accompanied by written proof or certification, acceptable to the Company and or the manufacturer, confirming that the installation has been undertaken by a qualified mechanic. This warranty shall not apply to any defect arising from improper use, failure to follow instructions, or any repair or modification made without the consent of the Company or the manufacturer. In returning the Item, you must contact the Company to notify the Company in advance of the return and obtain a returns number, to be quoted on all paperwork. Returned Item(s) must also be accompanied by an advice note stating the invoice number and the nature of the defect. Where you do not return the Item in accordance with this clause, the Company may refuse such Item and return the Item to you at your costs. The Company takes no responsibility and accepts no liability for any failure of any warranty made by the manufacturer of the Item.
6.5 To the extent permitted by law, the remedies set out above shall be the Company’s sole liability and your sole remedy for any defect in the Item and in respect of the supply of the Item.
You will indemnify the Company and keep the Company indemnified against all actions, proceedings, losses, liabilities, damages, claims, demands, costs and expenses however suffered or incurred by the Company as a result of or in connection with or howsoever arising from any:
Negligent act or omission;
Use or misuse of the website and or the Items; or
Your breach of any of the terms of this Agreement
8.1 To the fullest extent permissible by law, the Company shall not be under any liability for any expenses, business or economic loss, costs (including legal costs), loss of profits or any consequential, indirect or special loss or damage, or injury of any kind whatsoever whether suffered by you and/or your servants, agents, contractors, purchasers, visitors, tenants or any other persons (whether similar to the above or not), and whether arising directly or indirectly from any:
defect or non-compliance of Item supplied, or
breach of any of the Company’s obligations in respect of any of the terms of this agreement; or
cancellation or termination of this agreement; or
negligence, misrepresentation or other act or omission on the part of the Company, its servants, agents or contractors; or
any other cause;
and you shall indemnify the Company against any claim by any of the persons above or their representatives against any loss, damage or injury for which the Company’s liability is excluded by this clause.
8.2 Notwithstanding anything contained in the terms of this Agreement and to the fullest extent permissible by law, you acknowledge and agree that the maximum extent of the Company’s liability to you or any person claiming through you, whether in contract or in tort; or in any other way, concerning any claim for loss, damage or injury which arise directly or indirectly from any of the events set out in clause 8.1, shall not in aggregate exceed the Price for the Item in respect of which the loss, damage or injury arose.
9 Availability of Website
9.1 The Company will use reasonable endeavours to make sure that the website remains available to you during our normal hours of operation. Notwithstanding the foregoing, the Company accepts no responsibility whatsoever for any loss arising due to unavailability of the web site. You acknowledge that the Company has no responsibility to you to ensure the services are provided to you on an uninterrupted basis.
9.2 You acknowledge that the Company may decline to provide services to you at the Company’s sole and unfettered discretion without having to assign any reason whatsoever.
10 Electronic Communications
10.1 You agree that this Agreement constitutes an instrument in writing signed by you for the purposes of s 2 of the Contracts Enforcement Act 1956, and all other applicable laws and regulations. You agree that to the fullest extent permitted by applicable law, this Agreement and any other agreements, notices or other communications regarding your use of the website ("Communications"), may be provided to you, at our election (in our sole, absolute and unfettered discretion) electronically, or in paper format, by prepaid post, and you agree to receive all Communications from the Company in electronic form if we so elect. Electronic Communications will be delivered to your e-mail address. You may print a copy of Communications sent electronically and retain them for your records. Any Communications in either electronic or paper format will be considered to be in "writing," and to have been received no later than three (3) business days after posting or dissemination, whether or not you have received or retrieved the Communication.
11.1 In this Agreement, unless the context otherwise requires, the following words or phrases have the meanings ascribed to them below:
"hours of operation" means 8:30am to 5:30pm Monday through Friday excluding public holidays. Orders are nevertheless accepted 24 hours every day including weekends and public holidays and delivery times must be read mutatis mutandi in all circumstances;
"Item" means the goods or products specified by you in an online order form;
"Price" means the cost of the Item at the date of the invoice together with the cost of freight to your premises and any applicable sales, value added, excise, goods and service tax (and any other tax) in relation to the supply of the Item and all other charges on their supply and delivery;
”Company" refers to Evolution Motorsports Limited and where the context requires, its agents, directors, employees and shareholders and its successors and assigns
"you", "your", and "the Customer" are a reference to you; and
"website" and "web site" means the web site located at www.evolutionmotorsports.co.nz
12.1 Clause and other headings are for reference purposes only and do not affect the interpretation of this Agreement.
13.1 Words importing the singular include the plural, and words referring to persons include bodies corporate and unincorporated entities and, in each case, the reverse.
14.1 Any obligation not to do anything is deemed to include an obligation not to allow that thing to be done.
15.1 Failure by the Company at any time to enforce any provision of this Agreement is not a waiver of such provision and does not affect the validity of this Agreement or in any manner limit or restrict our ability to enforce such provision. You waive any and all right, claim or entitlement in respect of any cause of action founded on laches or estoppel.
15.2 All the original rights, powers, exemptions and remedies of the Company shall remain in full force and effect notwithstanding any neglect, forbearance or delay in their enforcement. The Company shall not be deemed to have waived any of the terms hereincontained unless such waiver shall be in writing. Any such waiver, unless the Company expressly states the contrary, shall apply to and operate only in the particular transaction, dealing or matter.
16 Partial invalidity
16.1 The invalidity of any part of this Agreement will not affect the enforceability of the rest of this Agreement. To the extent that it is practicable to do so without materially increasing the Company’s obligations under this Agreement, or materially decreasing the Company’s benefits under this Agreement any invalid clause shall be severed and the remaining terms of this Agreement shall continue in full force and effect.
16.2 If it is not practicable to sever the invalid clause(s), or if to do so would result in the Company assuming materially increased obligations or receiving materially decreased benefits under this Agreement, then this Agreement shall terminate summarily upon the Company giving you written notice.
16.3 You acknowledge that the Company is the sole judge in the Company’s absolute and unfettered discretion of whether severing any clause(s) resulting in the Company assuming materially increased obligations or receiving materially decreased benefits under this Agreement
17 Dispute Resolution
17.1 In the event that any dispute arises between you and the Company touching upon this Agreement, the parties shall meet and endeavour to resolve such dispute by good faith negotiation between them within seven (7) working days of the dispute first arising.
17.2 If the parties are unable to resolve the dispute by negotiation pursuant to clause 17.1, either party may refer the dispute to the determination of a single arbitrator appointed by agreement between them (or failing agreement between them within three (3) working days, appointed upon application by either party by the President for the time being of the New Zealand District Law Society).
17.3 Any dispute referred to arbitration pursuant to clause 17.2 shall be determined in accordance with the provisions of the Arbitration Act 1996, and any such reference to arbitration to clause 17.2 shall be deemed a submission to arbitration for the purposes of such Act.
17.4 For the avoidance of any doubt, nothing in this clause shall prevent any party to this Agreement from seeking urgent interlocutory relief from any court of competent jurisdiction.
17.5 Notwithstanding anything to the contrary express or implied in clause 17.1 to 17.3 hereof, to the extent that any dispute pertains to issues more properly within the knowledge, skill and experience of a specialist, as distinct primarily from legal issues, the resolution of such dispute shall in the first instance (prior to submission to arbitration pursuant to the above provisions) be submitted to expert determination by such specialist nominated by the parties. If the parties cannot agree on an expert nominee within seven (7) working days the dispute shall default to determination pursuant to clause 17.2.
18.1 You agree to pay to the Company upon demand any costs incurred by the Company in remedying any default by you under this Agreement or in enforcing any provision of this Agreement, including all solicitor and client costs on an indemnity basis.
19.1 The Company may terminate this Agreement at anytime, without cause and with immediate effect, by sending you an email to the email address supplied by you.
19.2 You may terminate this Agreement at anytime without cause and with immediate effect.
19.3 The provisions of the terms herein in respect of intellectual property rights, confidentiality, warranty disclaimers, liability limitations and indemnification shall survive any such termination.
20 No release from obligations
20.1 Termination of this Agreement does not relieve you from liability for prior breaches of the Agreement or of your obligations to pay all money owed by you to the Company on any account whatsoever, which money is payable immediately upon termination notwithstanding that the date for payment of the money may not have arrived.
21 Your obligations upon termination
21.1 Upon expiry or termination of this Agreement for any reason, all rights you have been granted under this agreement terminate and you will not be entitled to receive any rebate or refund of the whole or any part of any money paid pursuant to this Agreement, and you must pay to the Company all outstanding money payable under this Agreement and stop all use of the website.
22.1 You must not sell, transfer or assign any of your rights under this Agreement. The Company may assign this Agreement (including any right or interest arising under it) by written notice to you.
23 Force majeure
23.1 In the event of inability of either party to perform its obligations under this agreement by reason of strike, lockout, riot, industrial action, equipment failure, telecommunications/line failure, fire, storm, tempest, operation of law or other cause beyond the control of that of either party, each party shall be released from its obligations under this Agreement, but without prejudice to any pre-existing claim, liability or responsibility in respect of this Agreement.
24 New Zealand law
24.1 This agreement shall be deemed to have been made in New Zealand and the terms herein shall be governed by and construed in accordance with the law of New Zealand.