1. Definitions
1.1 “Seller” means National Construction Limited, its successors and assigns.
1.2 “Customer” means the person/s buying the Goods and/or Services as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Other Documents” means any plans, specifications, or other documents that, together with these Terms and Conditions, form the contract between the parties.
1.4 “Goods” means all Goods and/or Services (including but not limeted, cosultation, renting, manufacturing, supplying and/or instalation) supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Price” means the Price payable for the Goods as agreed between the Seller and the Customer in accordance with clause 4 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accept the quotation or delivery of the Goods.
2.2 These terms and conditions are to be read in conjunction with any Other Documents and replace all previous terms and conditions.
2.3 These terms and conditions and any Other Documents may not be varied and/or replaced with the Customer terms and conditions without the Seller’s consent in writing.
2.4 Orders placed by the Customer will only be accepted on the basis of these terms and conditions. The Customer must not place order and/or sign any credit application and/or accept the quotation if the Customer disagree with these terms and conditions. These terms and conditions shall prevail over any terms and conditions submitted by the Customer when placing any order and/or by signing any credit application and/or accepting the quotation, the Customer agrees to withdraw any terms and conditions submitted by them and to purchase the Goods upon these terms and conditions.
2.5 In the event that the supply of Goods and/or Services requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Seller reserves the right to refuse delivery.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Change in Control
3.1 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.
4. Orders, Price and Payment
4.1 An order is an offer to purchase that is not binding on the Seller until accepted by the Seller in whole or in part. The Seller reserves the right to specify a minimum order value or quantity.
4.2 Quotes may be revised or withdrawn by the Seller at any time prior to written acceptance of an order based quote.
4.3 The Seller will not be bound by clerical errors or omissions whether in computation or otherwise in any quotation, acknowledgement or invoice and the same shall be subject to correction.
4.4 The Price shall be either:
(a) the Seller’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days; or
(b) where there is no quoted price, then as per the Seller’s then current standard price as set out on the Seller’s website or any price list; or
(c) where neither (a) nor (b) apply, then in accordance with the basis on which the parties have agreed that the Goods shall be priced or charged as set out in any invoice or payment claim provided by the Seller to the Customer.
4.5 The Seller reserves the right to change the Price where:
(a) the cost to the Seller of any Goods or materials comprising part of the Goods increases after acceptance of the Seller’s quote or after acceptance of any order by the Seller, in which case the additional cost shall be added to the price (plus any GST); or
(b) any variation from the plan of scheduled works or specifications is requested by the Customer; or
(c) a variation is required due to additional works as a result of hidden or unidentifiable difficulties or unforeseen circumstances such as hard rock barriers below the surface or iron reinforcing rods in concrete or the unavailability of any Goods that necessitates the supply of alternative Goods; or
(d) a variation is required due to any Goods (not being Goods supplied by the Seller) are not ready or available to enable the Seller to perform the Services; or
(e) site conditions prevent the Seller from supplying the Goods (by way of example only, delivery materials planned to be craned through opening in frame of window but window was installed before delivery, or rain gets inside building that might cause damage to the Goods, or unsafe access or working conditions like rubbish on the floor having to be cleaned before starting works, or other materials have to be moved and in either case delays are caused to the Seller).
4.6 All variations shall be charged for in accordance with any provision agreed in writing between the parties in these terms and conditions or any Other Documents and otherwise, as agreed between the parties. Payments for all variations must be made in full at their time of completion.
4.7 At the Seller’s sole discretion a non-refundable deposit may be required. Where a deposit is required the Seller shall not be obligated to fill any order until the deposit has been received by the Seller in cleared funds.
4.8 Payments for Goods ordered in quantities, that require the Seller to increase its stock of those Goods or to order additional Goods from overseas, or for non-stock list items or Goods must be paid for in full on the day the Goods are available for delivery. The Seller will either take back or not deliver any such Goods if payment has not been made on or before delivery.
4.9 Time for payment for the Goods is of the essence. The Price will be payable by the Customer:
(a) as set out in any quote but if there is no quote, then;
(b) where clause 4.4 applies, then in accordance with clause 4.4 but where clause 4.4 does not apply or only applies to part of an order, then;
(c) for approved Customer’s, twenty (20) days following the end of the month in which an invoice is sent to the Customer (which may be by email to the Customer’s last known email address or by facsimile to the Customer’s last known facsimile number or by post to the Customer’s last known postal or physical address);
(d) for other Customer’s, then at the Seller’s discretion, on or before delivery of the Goods, or by way of instalments/progress payments determined by the Seller, or on the date specified on any invoice or/and payment claim or other form as being the date for payment, or the date which is seven (7) days following the date of any invoice given to the Customer by the Seller.
4.10 Subject to clause 9.2 payment may be by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Seller.
4.11 The Seller may at any time in its absolute discretion require the Customer to pay on invoice and prior to any delivery, particularly if the Customer is in default or the Seller believes the Customer to be a credit risk or if the Seller believes that any representations or statements will be made by the Customer at any time.
4.12 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Seller (at the same time as the price), an amount equal to any GST the Seller must pay for any supply by the Seller. The Customer must pay the price and any GST, without deduction or set off of any other amounts. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer takes possession of the Goods at the Seller’s address; or
(b) the Seller (or the Seller’s nominated agent or carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 Unless stated otherwise on any quote or Other Documents the cost of delivery is payable in addition to the Price.
5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage and may require payment of that fee prior to delivery or, where clause 27.7 does not apply, may exercise any of the rights and remedies set out in clause 18.3.
5.4 Any time or date given by the Seller to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the Seller will not be liable for any loss liability cost expense or damage incurred by the Customer as a result of the delivery being late.
6. Risk
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery.
6.2 If the Customer requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7. Access
7.1 The Customer shall ensure that the Seller has clear and free access to the work site at all times to enables the Seller to undertake the works. The Seller shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) or for any expense cost claim damages loss or liability caused by such damage unless due to the negligence of the Seller (but in no case shall the Seller be liable for any loss of income or loss of profit or any similar pecuniary loss).
8. Underground Locations
8.1 Prior to the Seller commencing any work the Customer must advise the Seller of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
8.2 Whilst the Seller will take all care to avoid damage to any underground services the Customer shall indemnify and keep the Seller indemnified in respect of all and any liability claims, loss, damage, costs, expenses and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9. Title
9.1 The Seller and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Seller all amounts owing to the Seller; and
(b) the Customer has met all of its other obligations to the Seller.
9.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised such that it is in or becomes cleared funds immediately available for use and non reversible.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 9.1 that the Customer is only a bailee of the Goods and must return the Goods to the Seller on request;
(b) Until payment has been made in full to the Seller, the Customer must insure the Goods from the time of delivery. The Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed prior to ownership passing. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries. This clause is without prejudice to any other rights or remedies that the Seller may have against the Customer in relation to the Goods and in particular, where the Customer has not insured the Goods or not adequately insured the Goods, does not prevent the Seller from recovering from the Customer the price for the Goods or any part of the price that is not met by the insurance proceeds;
(c) Prior to payment for the Goods the Customer must not sell, dispose, or otherwise part with possession of the Goods. If, contrary to this provision, the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds (including any account receivables relating to the disposition of the Seller’s Goods) on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e) the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods and the Seller shall not be liable for any damage or loss caused to any premises as a result of the Seller’s entry into the premises or the removal of any Goods from the premises.
(f) the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
10.2 A security interest is taken in all Goods supplied to the Customer by the Seller to secure the price of the Goods. A security interest is also taken in all present and after acquired personal and other property of the Customer to secure all monies owed from time to time by the Customer to the Seller.
10.3 The Seller may at its discretion and in such a manner as it determines allocate payments made by the Customer for any Goods supplied by the Seller.
10.4 Where the Seller takes possession of the Goods it may (in its absolute discretion), pursuant to s107(1) of the PPSA, and despite the wording of s109 of the PPSA and in addition to its rights under s109 (if any), sell the Goods by any means at any time and from any sale proceeds, deduct all costs incurred in connection with the sale and, to the extent to which it relies on its general security interest, all monies owed (even if not due and payable) by the Customer to it on any account (to the extent to which the Seller has priority over any other interested parties). The Seller may recover from the Customer any shortfall on any sale or attempted sale.
10.5 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Seller; and
(d) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.6 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.7 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 129, 131 and 132 of the PPSA.
10.8 Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11. Security and Charge
11.1 In consideration of the Seller agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12. Misrepresentations and Statements
12.1 The Customer confirms that no representations or statements have been made by the Seller or by anyone on the Seller’s behalf that are not set out as terms of these terms and conditions or of any Other Documents. Should for any reason it be the case that the Seller or anyone on the Seller’s behalf has made representations or statements that are not set out as terms of these terms and conditions or of any Other Documents, the Customer confirms that it has not relied on them. Should the Seller be held to be liable despite these confirmations for any representations or statements that are not set out as terms of these terms and conditions or of any Other Documents, the Seller’s liability under any heads of law shall be limited to the price of the Goods.
13. Defects
13.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to have repaired or to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
13.2 No employee, agent of, or independent contractor engaged by the Seller shall in any circumstances be under any liability of any kind to the Customer for any loss or damage whether arising or resulting directly, indirectly or consequentially from any act, neglect of default on the part of such person while acting in the course of or in connection with his or her employment, agency or engagement. Further, every exemption, limitation, condition and right expressed or implied in these terms and conditions on the part of or in favour of the Seller shall extend to protect every employee, agent or independent contractor acting as aforesaid. In terms of the contracts (Privacy Act) 1982, this provision is intended to be enforceable by every employee, agent of or independent contractor engaged by the Seller. For the purposes of section 6 of that Act, these terms and conditions may be amended by the parties in writing without the need for any agreement of any employee, agent of or independent contractor engaged by the Seller.
14. Returns
14.1 Orders, once accepted by the Seller, may not be cancelled by the Customer without the Seller’s prior written agreement. (Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will defiantly not be accepted once production has commenced, or an order has been placed). If the Seller at its absolute discretion agrees to cancellation of part or all of an order where no is raised in accordance with clause 13.1 it may, amongst other things, make that acceptance conditional upon payment by the Customer of a reasonable handling charge and upon the Customer agreeing to indemnify the Seller against all costs, expenses and losses of any kind that the Seller may suffer as a result of the cancellation.
14.2 Returns where there are defects will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 13.1; and
(b) the Goods are returned at the Customer’s cost within seven (7) days of the date upon which the Seller agreed in writing that the Goods should be repaired or may be rejected; and
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
14.3 Where the Seller has agreed that the Goods may be rejected the Goods are returned in the condition in which they were delivered and with all packaging material, brochures (all of which must be in as new or near new condition).
14.4 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
15. Warranty
15.1 Subject to the conditions of warranty set out in clause 15.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship. This is the only warranty given by the Seller and all warranties, conditions or guarantees that could be implied by any law in relation to the supply of services are expressly excluded.
15.2 The conditions applicable to the warranty given by clause 15.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) any accident or by any failure on the part of the Customer to properly use, maintain, care for or protect any Goods (not being Goods referred to in clause 15.3, which is the only warranty that applies to such Goods).; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
15.3 the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(i) fair wear and tear, any accident or act of God; or
(ii) the warranty shall not apply if the workmanship is repaired, altered or overhauled without the Seller’s consent; or
(iii) in respect of all warranty claims under clause 15.1 the Seller shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
15.4 For Goods not manufactured by the Seller, the only warranty shall be the current warranty provided by the manufacturer of the Goods, and the Seller shall use reasonable endeavours to assist the Customer in claiming under that warranty. All warranties, conditions or guarantees that could be implied by any law in relation to the sale of Goods are expressly excluded.
15.5 Any warranties given by the Seller personally are solely for the Customer and may not be assigned.
16. Consumer Guarantees Act 1993
16.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Customer.
17. Intellectual Property
17.1 Where the Seller has designed, drawn or developed Goods for the Customer, then the copyright and any other intellectual property rights in or arising out of any designs and drawings and documents shall remain the property of the Seller.
17.2 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any third party intellectual property rights in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any claims, actions, costs, expenses, liability, damages or losses suffered or incurred by the Seller by any third parties who allege that their intellectual property rights have been infringed as a result of the Customer having given any designs, specifications or instructions given to the Seller.
17.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment, including all days of the week, at a rate of: two and a half percent (2.5%) for amounts up to $500 including $500, two percent (2%) for amounts from $501 to $2000, one and a half percent (1.5%) for amounts from $2001 to $5000, and one percent (1%) for amounts above $5000 (and at the Seller’s sole discretion such interest shall compound DAYLY at such a rate) after as well as before any judgment.
18.2 The Customer shall indemnify and keep the Seller indemnified against all costs and expenses incurred by the Seller in exercising any rights or remedies under these terms and conditions or any Other Documents or under the general law, (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
18.3 Without prejudice to any other remedies the Seller may have, if at any time;
(a) any money payable to the Seller is overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due, or the Customer is otherwise in default of any of its obligations; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an agreement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; then without prejudice to any other rights or remedies that the Seller may have, the Seller may suspend or terminate the supply of or any part of the supply of Goods to the Customer that have not been delivered and all sums owing by the Customer to the Seller shall automatically become due and payable. The Seller shall not be liable to the Customer for any costs, expenses, damages or loss the Customer suffers or incurs because the Seller has exercised any rights or remedies under this clause.
19. Cancellation
19.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any expense, cost, loss, liability or damage whatsoever arising from such cancellation.
20. Privacy
20.1 The Customer authorises the Seller or the Seller’s agent at any time to:
(a) access, collect, retain and use any information about the Customer (including without limitation any overdue fines balance information held by the ministry of justice);
(i) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
20.2 Where the Customer is an individual the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.
20.3 The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect information about the Customer held by the Seller.
21. Lien
21.1 Where the Customer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item and the Seller has not received or been tendered the whole of any moneys owing to it by the Customer, the Seller shall have, until all moneys owing to the Seller are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
21.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Customer.
22. Construction Contract Act 2002
22.1 The Customer hereby expressly acknowledges that:
(a) the Seller has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Customer, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Customer; or
(ii) a scheduled amount stated in a payment schedule issued by the Customer in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Customer has not complied with an adjudicator’s notice that the Customer must pay an amount to the Seller by a particular date; and
(iv) the Seller has given written notice to the Customer of its intention to suspend the carrying out of construction work under the construction contract.
(b) if the Seller suspends work, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Customer or by any person claiming through the Customer; and
(iii) is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if the Seller exercises the right to suspend work, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to the Seller under the Contractual Remedies Act 1979; or
(ii) enable the Customer to exercise any rights that may otherwise have been available to the Customer under that Act as a direct consequence of the Seller suspending work under this provision.
23. Errors and Omission
23.1 The Customer acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake madeby the Seller in the formation and /or administration of these Terms and Conditions; and/or
(b) t contained in/omitted from any literature (hard copy and/or electronic) supplied by the Customer in respect of the Goods and/or Services.
23.2 In the event such an error and/or omission occurs in accordance with clause 23.1, and is not attributable to the negligence and/or wilful misconduct of the Seller; the Customer shall not be entitled to treat this Terms and Conditions as repudiated nor render it invalid.
24. Service of Notices
24.1 Any written notice given under these Terms and Conditions shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in these Terms and Conditions;
(c) by sending it by registered post to the address of the other party as stated in these Terms and Conditions;
(d) if sent by facsimile transmission to the fax number of the other party as stated in these Terms and Conditions (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address;
(f) if sent by text message to the other party’s last known phone number.
24.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
25. Trusts
25.1 If the Customer at any time upon or subsequent to entering in to the contract is actingin the capacity of trustee of any trust (“Trust”) then whether or not Seller may have notice of the Trust, the Customer covenants with Seller as follows:
(a) the contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Customer will not without consent in writing of Seller (Seller will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property(s).
26. Consumer Guarantees Act 1993
If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by the Seller to the Client.
27. General
27.1 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision. If any provision of these terms and conditions or any Other Documents shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
27.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
27.3 In addition to and without limiting any other provision of these terms and conditions the Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of income or loss of profit or any other form of pecuniary loss) suffered by the Customer arising out of a breach by the Seller of these terms and conditions or any Other Documents. Should the Seller be found to have any liability under any head of law that it cannot contact out of, its liability shall be limited to the Price of the Goods.
27.4 The Customer shall not be entitled to make any deduction from or exercise any right of set off against, any monies owed to the Seller or to withhold payment of any invoice because part of that invoice is in dispute. In the latter case, the Customer must pay the undisputed part of the invoice.
27.5 The Seller may sub-contract any or all of its obligations under these terms and conditions or any Other Documents without the Customer’s consent. The Seller may assign any all or of its rights and obligations under these terms and conditions and any Other Documents without the Customer’s consent.
27.6 The Seller may amend or replace these terms and conditions at any time and once the Seller has notified the Customer of the amended or replaced terms (which may occur by general notice on the Seller’s website), the amended or replaced terms shall apply to all orders subsequently placed by the Customer. An assent to these current terms and conditions is an assent to any amended or replaced terms and conditions but should the Seller request the Customer to assent specifically to the amended or replaced terms and conditions the Seller shall not be obligated to accept any order, or to deliver any Goods until the Customer has assented in accordance with the PPSA.
27.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
27.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
27.9 Any notice or other document required to be in writing by virtue of these terms and conditions may be given in person or by registered letter or by facsimile addressed to the registered office or place of business or residential address of the party to be served last known to the other party. Service by registered letter shall be deemed effective at the time the registered would normally have been delivered in the ordinary course of post. Service by facsimile shall be deemed effective at the time of sending provided that the sending machine produces a printout of the time and date and uninterrupted transmission of the message.
