Terms and Conditions

TWL Terms for Supply of Goods(“Terms”)


1.0 Definitions

1.1 The following definitions are used in these terms and conditions of online sales (“Terms”):

(a) business days means all working days excluding statutory holidays, public holidays under the Holidays Act 2003 and national anniversary days of the region of the TWL branch or warehouse referred to in your Order.

(b) Credit Limit” means a dollar amount set by us which may be amended by us from time to time and which reflects the pre-approved credit that we have agreed to extend to you at a particular point in time pursuant to our terms of trade Terms of Trade (“Terms of Trade”)

(bb) “Company”, “we”, “our” “us” and “TWL” means Sime Darby Transport (NZ) Limited trading as TWL.

(c) “CGA” means the Consumer Guarantees Act 1993.

(d) “Customer”, “you” or “your” means the person(s) or company named on the cover page to these Terms.

(e) Delivery (and Deliver) have the meaning pursuant to clause 7.1(a) of these Terms.

(f) “FTA” means the Fair Trading Act 1986.

(g) “Goods” means all goods supplied by us to you from time to time in accordance with these Terms (including any parts, Special Order Parts and services supplied by us in connection with the Goods.

(h) Order means a request to purchase Goods using the Website pursuant to clause 3 of these Terms.

(i) “PPSA” means the Personal Properties Securities Act 1999;

(j) “Privacy Act” means the Privacy Act 2020;

(k) “Privacy Policy” has the meaning given to that term in clause 14.1;

(l) “Receiver” has the meaning given to that term in clause 8.7;

(m) Related Parties has the meaning given to that term under section 2 of the Companies Act 1993.

(n) “Secured Goods” has the meaning given to that term in clause 8.1(a);

(o) “Source” has the meaning given to that term in clause 14.2;

(p) “Special Order Parts” means parts that are not held in our shop inventory, including (but not limited to) indent, non-stock items, and items customised or made to order and items with bespoke modifications (such as items cut to length).

(q) “Terms” means these Terms for online sales as amended by us from time to time, including Terms of Trade, Privacy Policy, Windcave Terms and our Website Terms of Service, together referred to as the “Agreement” or the Terms.

(r) Website means www.twlnz.co.nz.

(s) Website Terms of Service means the terms at www.twlnz.co.nz/legal/website-terms-of-service/

(t) Windcave Terms means the Windcave merchant and the secure payment terms which are between you and Windcave Limited” dules and policies referred within, The Website Terms of Service, The Windcave Terms are as follows , Windcave | Privacy Policy Page to enable secure payment using this Website.


2.0 Application of Terms

2.1 These Terms apply to all Goods supplied by us to you under any Order made by you using the Website. Unless expressly agreed otherwise in writing, these Terms take precedence over any other terms and conditions, including without limitation any other terms and conditions which you seek to extend to the supply of Goods by us, whether by way of incorporation into your Order or otherwise. If you are paying for an Order using your trading account with us, the preapproved Terms of Trade are to be read together with these Terms. If there is an inconsistency or conflict between the Terms of Trade and these Terms, these Terms will prevail.

The order of precedence for application of the documents comprising these Terms are in ascending order as follows: the Terms of Trade (if applicable to you), these Terms including the documents, annexures, schedules and policies referred within, the Website Terms of Service, the Windcave Terms Windcave.


3.0 Orders

3.1 You may order Goods from us under these terms, and w may modify or replace the processes for ordering as shown on this Website from time to time.

3.2 All Orders are subject to acceptance by us. We may, in our discretion:

(a) accept an Order (in whole or in part) by issuing an invoice in respect of the applicable Goods, delivering the Goods or otherwise confirming the Order in writing; and/or

(b) reject or cancel or modify any Order (in whole or in part) at any time prior to Delivery which we will confirm to you and process a credit.


4.0 Authorised Representatives

4.1 Subject to clause 4.2, you agree that if you introduce any third party to us as your duly authorised representative, then that person will have your full authority to Order any Goods and/or request any variation on your behalf (such authority to continue until you notify us in writing that the relevant person is no longer your authorised representative).

4.2 If your authorised representative under clause 4.1 is to have limited authority to act on your behalf then you must specifically and clearly advise us in writing of the authority limits.


5.0 Price and Taxes and Delivery costs

5.1 Unless otherwise agreed by us in writing and subject to clause 5.2, the price of Goods will be our price ruling at the time of Delivery of the Goods in New Zealand dollars and excludes any taxes, duties and freight or storage charges for Delivery,

5.2 Where the Goods are to be imported by us then we reserve the right to charge you the exchange rate and/or freight costs and or duties incurred by us at the time of Delivery rather than as quoted when you placed the Order unless we have agreed in writing to fix the price of your order at the time of accepting your Order.

5.3 The prices and discounts on the Website or other quotation given by us are subject to change for any reason. We can amend or withdraw our prices and discounts without notice and at any time.


6.0 Payment and Default

6.1 Payment must be made in full on or before the acceptance of your Order by us under clause 3 of these Terms without deduction, set-off, withholding or counterclaim. If you are making payment using your Credit Limit invoices must be paid by the 20th of the month following invoice date and the Terms of Trade prevail.

6.2 If you believe an invoice is incorrect then you must give us written notice within 7 days of receiving our invoice. If you have not given us valid notice, then you must treat our invoice as correct. Where you dispute an invoice, you must make payment of the undisputed amount due on any such disputed invoice by the due date. Within 3 business days of the dispute being resolved you must pay to us the resolved amount due.

6.3 If you default on any payment due to us or, at our sole discretion, we consider you are at risk of defaulting in paying your debts as and when they fall due then we may, at our option:

(a) stop delivering Goods to you and/or cancel any accepted Order without notice to you and without prejudice to any other action or remedy which we have or might otherwise have had.

(b) reclaim any Goods in your possession or under your control and you give irrevocable authority to us to enter any premises where we believe those goods may be stored or held in order to do so, and recover from you all costs of doing so; and/or

(c) all monies owing and outstanding by you to us on any account whatsoever will become immediately due and payable (without the requirement for notice from us) and for future orders you must pay in full prior to delivery. Payment must be made in full on or before the acceptance of your order by us under clause 3.

(d) We will not be liable in contract, tort (including negligence) or otherwise, for any costs, damages or expenses or any other losses incurred by you or any third party as a result of our exercising any of our rights under this clause 6.0 and you indemnify us against any liability we may have to any third party (including legal costs on a solicitor-client basis), as a result of exercising our rights under this clause 6.0.

6.4 Without in any way limiting our other rights, we may charge interest on overdue accounts at the compounding rate of 2.5% per month from the due date until payment has cleared.

6.5 You agree to pay us for any collection costs, debt collection agency fees, agency commission fees, full legal expenses and any other expenses incurred by us in attempting to recover payment from you.

6.6 You agree that we can set and subsequently adjust your Credit Limit at our sole discretion at any time.

6.7 Should the amount that you owe us exceeds your Credit Limit, you agree to pay us the difference between the amount you owe and your Credit Limit immediately regardless of when payment would otherwise be due.


7.0 Delivery and Risk in the Goods

7.1 Where Goods are supplied by us:

(a) Delivery will be deemed complete when we give possession of the Goods to you (or your agent, contractor or representative) or to a carrier for Delivery to you from a TWL warehouse or TWL branch or otherwise; We will have no liability for damage to Goods in transit to you.

(b) we reserve the right to Deliver the Goods by instalments and each instalment will be deemed to be a separate Order subject to these Terms. Failure by us to Deliver one or more instalments, will not entitle you to cancel your Order; and

(c) risk will pass to you from the earlier of Delivery of the Goods as defined in 7.1a. If you request and we agree to a delay in Delivery, risk will pass upon the date of your request for such delay.


8.0 Personal Property Securities

8.1 You grant to us a security interest in each and every:

(a) part of the Goods and all proceeds of such Goods (together, the “Secured Goods”) as security for payment by you to us of all amounts owing by you, and for the performance by you of all your other obligations to us, from time to time under these Terms. ; and

8.2 Nothing in this clause 8.0 restricts us from claiming that a security interest established pursuant to these Terms is a purchase money security interest in respect of all or part of the Secured Goods

88.4 You undertake to:

(a) at your own cost, promptly do all things, sign any further documents and/or provide any information which we may reasonably require to enable us to perfect and maintain the perfection of any security interest created under these Terms (including by registration of a financing statement); and

(b) not create or permit to exist any security interest over or affecting the Secured Goods or the without our prior written consent.

8.5 You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest created under these Terms.

8.6 We and you agree that, to the maximum extent permitted by law:

(a) we and you each contract out of sections 114(1)(a), 133 and 134 of the PPSA, and in doing so you waive your rights under, or by reference to, any of these sections;

(b) you have no rights under, or by reference to, sections 114(1)(a), 133 and 134 of the PPSA and waive your rights to sections 116, 120(2), 121, 125, 129, 131 and 148 of the PPSA; and

(c) where we have rights in addition to Part 9 of the PPSA, those rights will continue to apply.

8.7 At any time after a default occurs under these Terms, we may (whether or not we have exercised any other right) appoint any person to be a receiver (“Receiver”) of all or any of the Goods or any of your other property subject to a security interest created by these Terms, on terms that we consider necessary or expedient. For the purposes of Part 2, Subpart 1, of the Contract and Commercial Law Act 2017, each Receiver is entitled to enforce against you each provision of these Terms that confers a benefit on a Receiver. However, no Receiver needs to consent to any amendment made to these Terms.

8.8 Words and phrases used in this clause 8.0 have the meanings given to them in, or by virtue of, the PPSA.


9.0 Returns and Cancellation

9.1 Any cancellations of, or modifications to, Orders for Goods will not be accepted unless agreed in writing by us in advance. If you wish to cancel your Order, you will need to contact the TWL branch you selected on the Website. The Order’s email confirmation will record the details for the return including return paperwork and return address.  If your request to cancel or return an Order in whole (or part) or if all or part of the Order has been received after we have started processing it, we reserve the right to process your Order as originally made.

 If we cancel the Order prior to Delivery, we will refund the original price to the payment method you used to make the Order. If the Order has been processed, the Goods will be Delivered to your nominated address, and you may follow the Orders process by returning the Goods to the TWL branch recorded on the email confirming the Order, or your nearest TWL branch. We will not be required to refund all or part of the Delivery fees related to the return.

An Order for customised Goods cannot be cancelled, including Goods that have been cut to length ordered, made specific to requirements and Special-Order Parts.

9.2 Special Order Parts cannot be returned for change of mind or incorrect purchase request.

9.3 We offer a seven-day refund policy in relation to returned Goods. Special Order Items are excluded and cannot be returned or exchanged.

To return Goods:

(a) you must notify us in writing by email to the email address recorded on email confirmation of the Order that is emailed to you that you wish to return the Goods within seven days of Delivery of the Goods; and

(b) Goods must be sealed and unopened to the extent practicable, with packaging in its original condition; and

(c) provide us with the digital imagery of the Goods, shipment details, and the packaging, for us to confirm acceptance; and

(d) once return is accepted return your Goods to the TWL branch you specified on the original order request or to your nearest TWL branch or:

(e) If it is not possible to return goods in person, please contact your nearest TWL branch for a return order confirmation number to accompany the Goods; and

(f) Goods will be credited upon receipt of Goods at the TWL branch that was recorded on your email confirmation of the Order. A refund of credit may take up to 5-7 business days to appear in your bank account.

9.4 Where we agree to refund you for Goods returned to us outside of these Terms, a handling fee equal to at least 20% of the value of the Goods recorded on your order invoice will be charged to you. Any delivery, service and assembly and handling fees paid by you will not be refundable.

9.5 If the Delivered do not match the description of the Order, we may either supply you the correct Goods at our cost, issue you a credit note or refund for the Goods in accordance with clauses 9.3 and 9.4 (at our sole discretion and subject to availability). You must:

(a) notify us by email using the email address recorded on your email confirmation of the Order, within seven days of Delivery of the Goods that the Goods are incorrect

(b) return the incorrect Goods to us in an unused condition and with the original packaging; and

(c) you must act expediently and without delay to return the Goods.

9.6 No claims will be accepted once Goods have been used, fitted, damaged or converted in any way.

9.7 Faulty Goods will be subject to the normal return procedures for the specific brand and or individual manufacturers’ terms.

9.8 We will arrange for collection of any incorrectly supplied, damaged or faulty Goods except if the Goods were damaged after Delivery. Subject to clause 9.2, if you are supplied with the wrong Goods from those that you ordered, clauses 9.3 to 9.5 shall apply. In the event that the Goods are faulty upon delivery or first use, clauses 9.7 and 10 (as applicable) shall apply.

9.9 Refunds and exchanges are not available for discounted goods purchased through a sale or promotion. 


10.0 Warranty and Liability

10.1 Except as expressly agreed by us in writing, all warranties, representations, statements and terms or conditions, whether implied by statute or made by any representative or agent of ours or otherwise, and whether express or implied, are excluded to the maximum extent permitted by law. No guarantees, warranties, representations or agreements made on our behalf will be binding on us unless made by us to you in writing.

10.2 We are not and will not be liable for any claim by you under these Terms unless notice is given in writing to us within 12 months of the act or omission giving rise to the claim, unless otherwise set out in this Agreement.

10.3 If any of the Goods are faulty upon Delivery or first use, we may either repair or replace the Goods, or issue you a credit note or refund you (at our sole discretion and subject to availability). You must within seven days of delivery of the Goods:

(a) notify us which Goods are faulty;

(b) unless we notify you otherwise, arrange for the faulty Goods to be returned to us so we can test and confirm the Goods are faulty; and

(c) if applicable, return the goods to us to which the faulty Goods have been fitted or attached so we can test and confirm the Goods are faulty.

10.4 If any of the Goods are faulty within the warranty period specified when you purchased the Goods, we may either repair or replace the Goods, or issue you a credit note or refund you (at our sole discretion and subject to availability). You must:

(a) notify us that certain Goods are faulty as soon as practicable.

(b) unless we notify you otherwise, arrange for the faulty Goods to be returned to us so we can test and confirm the Goods are faulty; and

10.5 If the Goods have been damaged during transit, we may either repair or replace the Goods, or issue you a credit note or refund you (at our sole discretion and subject to availability). You must (unless we agree otherwise) notify us of any damage to the Goods within 24 hours of delivery of the Goods. Claims of this nature may take additional time to resolve due to delivery being handled by a third party.

10.6 The warranty period provided by the manufacturer or our supplier as applicable, will apply to new or re-manufactured parts including for Special Order Parts.

10.8 Any Goods supplied in remedying any defects will not extend our liability under these Terms (including the manufacturing or supplier warranties) and our liability will cease upon expiration of the initial time period stipulated in these Terms.

10.9 You cannot claim under any warranty if your account is overdue. We reserve the right to withhold or refuse the warranty cover until you pay all accounts that are in arrears with us.

10.10 To the maximum extent permitted by law, in no circumstances will we be liable to you or any third party, whether in contract, tort (including negligence) or otherwise, under or in connection with these Terms or the Goods o for any:

(a) minor variation in product specifications including but not limited to colour or design, which may occur from time to time;

(b) consequential, indirect or special loss or damage whatsoever.

(c) loss of profits, revenue, data, goodwill, customers or opportunity or loss of or damage to reputation;

(d) loss, damage or injury to person or property;

(e) delay in Delivery;

(f) acts or omissions of any third party or acts or omissions performed in accordance with your instructions (or instructions from your representatives).

10.11 To the maximum extent permitted by law:

(a) our maximum aggregate liability for all claims however arising out of or in connection with these Terms is limited to the lesser of: (i) the price paid by you to us for the Goods to which the claim relates, or (ii) the actual loss or damage suffered by you; and

(b) your sole remedies for any breach of these Terms or loss or damage arising from the subject matter of these Terms are expressly set out in these Terms.

10.12 All advice and information provided by us to you, in whatever form, is given gratuitously and without liability. Illustrations are not binding as to detail.

10.13 Any typographical, clerical or other error or omission in any acceptance of an offer, invoice or other document or information issued by us will be subject to correction without any liability on us.


11.0 Consumer Guarantees Act and Fair Trading Act

11.1 Subject to clause 11.2, we will comply with our obligations under the CGA and the FTA to the extent applicable to the supply of Goods.

11.2 Where you are purchasing Goods an in trade, you acknowledge and agree for the purposes of section 5D of the FTA and section 43 of the CGA that, to the extent permitted by law:

(a) the Goods supplied to you under these Terms are being provided and acquired in trade;

(b) in respect of all matters covered by these Terms, the parties are contracting out of the CGA and sections 9, 12A and 13 of the FTA; and

(c) it is fair and reasonable for the parties to be bound by this clause.

12.0 Force Majeure

12.1 We will not be liable to you for any failure or delay in performing our obligations under these Terms, where such failure or delay is caused by events or circumstances beyond our reasonable control, including any strike, lockout, labour dispute, delay in transit, embargo, epidemic, pandemic, accident, flooding, natural disaster, emergency, order of government or other authority or act of God.


13.0 Governing Law

13.1 These Terms will be governed by and construed in accordance with the laws of New Zealand (to the exclusion of any conflicts of law rules) and, subject to clause 13.2, the parties submit to the exclusive jurisdiction of the New Zealand courts.

13.2 You and we must seek to resolve any differences by direct negotiation for not less than 14 days before resorting to legal action.


14.0 Privacy Act & Unsolicited electronic messages and marketing

14.1 You authorise us to collect, use, disclose and retain any personal information (as defined in the Privacy Act) concerning you and/or your representatives, officers and/or Guarantors in accordance with this clause 14.0 and our privacy policy (a copy of which is available at simedarby.co.nz/legal/privacy-policy (“Privacy Policy”).

14.2 You acknowledge that the authorisation provided by you under clause 14.1 may include us contacting any credit reporter, debt collector, referee or any other source (“Source”) in order to check, exchange or provide information in relation to you and, if applicable, your representatives. You acknowledge that this may include the disclosure of credit information (including information about default and repayment history) to a credit reporter, who may hold that information on their systems and use it to provide their credit reporting services.

14.3 You authorise each Source to provide to us any information about you and, if applicable, your representatives.

14.4 If you disclose any personal information about another person to us, you confirm that the individual concerned has authorised the collection, use, disclosure and retention of their personal information by us in accordance with this clause 14.0 and our Privacy Policy and that you have notified the individual of their rights to access and request correction of their personal information in accordance with our Privacy Policy.

14.5 We will comply with the Privacy Act in relation to all Personal Information that we collect and disclose under or in connection with these Terms.

14.6 By placing an Order on the Website you give us and any of our related parties (as defined in section 2 of the Companies Act 1993) consent to send you marketing and communications electronically including texts and emails under the Unsolicited Electronic Messages Act 2007. If you do not wish to receive communications of any kind including marketing material and promotions from us electronically, please email customer.care@simedarby.co.nz to opt out.

14.6 For the avoidance of doubt this clause 14 survives termination or expiry of these Terms.

15.0 Health and Safety

15.1 Each party will comply with the Health and Safety at Work Act 2015, including all applicable regulations under that Act, as well as all applicable standards and codes of practices relating to health and safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the other party’s premises.

15.2 You will notify the Company of any known hazards arising from your premises to which a worker or any person may be exposed while on the premises, and ensure your workplace is without risks to the health and safety of any person.

15.3 Each party must consult, co-operate with and co-ordinate activities with all other persons who have a health and safety duty in relation to the same matter in providing the Goods.


16.0 General

16.1 You undertake that during and after the Term you will keep confidential and will not without our prior written consent disclose to any third party any information acquired, except: (a) as agreed in writing by us and, in such case, strictly limited to the terms agreed and any conditions attached to such agreement; (b) to your directors, officers, employees, agents, contractors or representatives to the extent necessary to obtain the benefit of, or to properly perform their obligations under, these Terms; or (c) as required by an applicable law, after first consulting with us to the extent practicable about the form and content of the disclosure.

16.2 All notices or other communications given by one party to the other in connection with these Terms must be in writing and sent to the other party at the address in New Zealand that the other party specifies from time to time. Any notice or other communication is deemed to be received and sufficiently served: (i) if personally delivered, on receipt; (ii) if posted by pre-paid official postal service, on the third business day after posting (or seven business days after posting if sent from one country to another); and (iii) if sent by email, when it passes the point in the sender’s computer system that the communication could not be stopped by the sender from being transmitted (unless the sender receives an automated message that delivery failed) or, if that occurs after 5.00pm, on the next business day. You must use the email address we provide to you on your email Order confirmation, and we will use your email address for notification as you have confirmed in your Order.

16.3 You may not assign or subcontract any of your rights or obligations under these Terms without our prior written consent.

16.4 These Terms, together with our Privacy Policy, the Website Terms of Service, Windcave Terms, and if you have a Credit Limit, the Terms of Trade, set out the entire agreement between the parties concerning the subject matter of these Terms and supersede and cancel any previous discussions, representations, agreements, understandings, negotiations or arrangements (whether written or oral) between the parties.

16.5 We may amend these Terms at any time on notice to you in writing, and such amendments will take effect or be binding from the date of notice to you. No amendment or variation to these Terms is effective unless it is in writing and signed by us.

16.6 The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to us by law.

16.7 The relationship between us and you is that of an independent supplier to its customer. Except as expressly provided in these Terms, nothing in these Terms is intended to constitute a relationship of employment, trust, agency, joint venture, partnership or any other fiduciary relationship between the parties. No party has authority to bind or incur debts on behalf of the other party.

16.8 If any provision of these Terms is illegal, invalid or unenforceable: (i) where that provision can be modified to give it a valid and enforceable operation of a partial nature, it must be modified to the minimum extent necessary to achieve that result; and (ii) in any other case, the provision must be severed from these Terms, without affecting the enforceability of the other provisions of these Terms.

16.9 Termination or expiry of these Terms will not affect any provisions of these Terms which are expressed to, or by implication are intended to, survive termination or expiry of these Terms.

16.10 No delay or failure to exercise any of our rights or remedies will be a waiver of any of our rights or remedies under these Terms. A waiver by us of any breach of these Terms or any right, power or remedy under, or in connection with, these Terms (including a right of termination) is not effective unless that waiver is in writing and signed by us.

16.11 We can enforce our rights under these Terms even if we have not signed the cover page to these Terms in accordance with Part 2, Subpart 1 (Contractual Privity) of the Contract and Commercial Law Act 2017.

16.12 You will give us not less than fourteen (14) days prior written notice of any proposed change of ownership or change of control, of your purchasing entity and/or any other change in your details (including but not limited to, changes in your name, directors, address, contact phone or email, or business practice). You will be liable for any loss incurred by us as a result of your failure to comply with this clause 16.12. Change of Control means any transfer of 50% or more shares in your purchasing entity.

16.13 Each party must, at its own expense, do all things reasonably necessary to give full effect to these Terms and the transactions contemplated by it and use reasonable endeavours to cause any relevant third parties to do the same.

16.14 You are deemed to have accepted these Terms when you place an Order on the Website.

16.15 In these Terms: (a) headings are for convenience only and do not affect interpretation; (b) a reference to a statute is a reference to a New Zealand statute and includes all regulations under and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated; (c) a word importing the singular includes the plural and vice versa; (d) the word person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust or government agency, in each case, whether or not having a separate legal personality; (e) a reference to a party to these Terms or another document includes that party’s successors and permitted assigns and substitutes; (f) references to “including” shall be construed as “including, without limitation”; (g) these Terms must not be construed adversely to a party just because that party prepared them or caused them to be prepared; and (h) references to money, “dollars” or “$” are to New Zealand dollars unless in each case specifically stated otherwise.

In the event of a conflict or inconsistency between these Terms (including any policy and procedure referred within) and the Terms of Trade, the Terms of Trade will prevail, followed by these Terms, the Website Terms, and the Windcave Terms.