Terms & Conditions

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Service Provider’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Service Provider to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and

(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and

(d) includes the Customer’s executors, administrators, successors and permitted assigns.

1.4 “Goods” means all Goods or Services supplied by the Service Provider 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 (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Service Provider and the Customer in accordance with clause 5 below.

1.6 “Service Provider” means Cool HQ Limited T/A CoolCar Air- Conditioning & Heating Hamilton or CoolCar Air - Conditioning & Heating North Shore or CoolCar Air - Conditioning & Heating Henderson, its successors and assigns.

1.7 “Vehicle” shall mean any loan Vehicle supplied by the Service Provider to the Customer. The Vehicle shall be described in this Contract or on any other forms as provided by the Service Provider to the Customer, and includes any parts, components, accessories and contents supplied by the Service Provider.

2. Acceptance

2.1 The parties acknowledge and agree that:

(a) they have read and understood the terms and conditions contained in this Contract; and

(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods/Services.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Customer acknowledges that the supply of Goods/Services on credit shall not take effect until the Customer has completed a credit application with the Service Provider and it has been approved with a credit limit established for the account. In the event that the supply of Goods/Services requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Service Provider reserves the right to refuse Delivery.

2.5 Further to clause 2.4, the Customer acknowledges and accepts that once the line of credit has been approved by the Service Provider that a booking fee shall apply as determined by the Service Provider, unless otherwise agreed, which shall be added to the first invoice under the contract to supply.

2.6 Any advice, recommendation, information, assistance, or service provided by the Service Provider in relation to the Goods or Services supplied is given in good faith to the Customer, or the Customer’s agent and is based on the Service Provider’s own knowledge and experience and shall be accepted without liability on the part of the Service Provider. Where such advice or recommendations are not acted upon then the Service Provider shall require the Customer or their agent to authorise commencement of the Services in writing. The Service Provider shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

2.7 In the event that the Customer requests the Service Provider to provide the Services urgently, that may require the Service Provider’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then the Service Provider reserves the right to charge the Customer additional labour costs (penalty rates will apply at time and a half normal rates), unless otherwise agreed between the Service Provider and the Customer.

2.8 Where the Goods/Services provided by the Service Provider are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by the Service Provider and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.

2.9 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. Errors and Omissions

3.1 The Customer acknowledges and accepts that the Service Provider 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 made by the Service Provider in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Service Provider in respect of the Services.

3.2 If such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Service Provider; the Customer:

(a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but

(b) shall not be responsible for any additional costs incurred by the Service Provider arising from the error or omission.

4. Change in Control

4.1 The Customer shall give the Service Provider 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 and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by the Service Provider as a result of the Customer’s failure to comply with this clause.

5. Price and Payment

5.1 At the Service Provider’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by the Service Provider to the Customer; or

(b) the Service Provider’s quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2 The Service Provider reserves the right to change the Price:

(a) if a variation to the Services originally scheduled is requested; or

(b) where additional Services are required due to unforeseen circumstances or unidentifiable difficulties (including, but not limited to, shortage or unavailability of stock, shortage of skilled labour, further faults which are found upon disassembly and/or further inspection whilst completing the Services, etc) which are only discovered upon commencement of the Services; or

(c) if during the course of the Services, the Goods are not or cease to be available from the Service Provider’s third-party suppliers, then the Service Provider reserves the right to provide alternate Goods subject to prior confirmation and agreement of both parties; or

(d) in the event of increases to the Service Provider in the cost of labour or materials which are beyond the Service Provider’s control.

5.3 Variations will be charged for on the basis of the Service Provider’s quotation, and will be detailed in writing, and shown as variations on the Service Provider’s invoice. The Customer shall be required to respond to any variation submitted by the Service Provider within ten (10) working days. Failure to do so will entitle the Service Provider to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

5.4 At the Service Provider’s sole discretion, a reasonable deposit may be required.

5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Service Provider, which may be:

(a) on delivery of the Goods;

(b) on completion of the Services;

(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Service Provider.

5.6 Payment may be made by cash, electronic/on-line banking, credit card (Excluding AMEX or Diners Card and a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Service Provider.

5.7 The Service Provider may in its discretion allocate any payment received from the Customer towards any invoice that the Service Provider determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Service Provider may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Service Provider, payment will be deemed to be allocated in such manner as preserves the maximum value of the Service Provider’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

5.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Service Provider nor to withhold payment of any invoice because part of that invoice is in dispute.

5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Service Provider an amount equal to any GST the Service Provider must pay for any supply by the Service Provider under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. 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.

6. Delivery of Goods

6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Service Provider’s address; or

(b) the Service Provider (or the Service Provider’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

6.2 The cost of Delivery is either included in the Price or is in addition to the Price as agreed between the parties.

6.3 The Service Provider may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.4 Any time specified by the Service Provider for Delivery of the Goods is an estimate only and the Service Provider will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that the Service Provider is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then the Service Provider shall be entitled to charge a reasonable fee for redelivery and/or storage.

7. Risk

7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Service Provider is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Service Provider is sufficient evidence of the Service Provider’s rights to receive the insurance proceeds without the need for any person dealing with the Service Provider to make further enquiries.

7.3 If the Customer requests the Service Provider to leave Goods outside the Service Provider’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.

7.4 The Customer acknowledges and accepts that:

(a) it is the Customer’s responsibility to supply the Service Provider, where the Service Provider is installing/assembling the Goods, a safe area safe area for the storage of the Goods and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.

(b) further to clause 7.4(a) and unless otherwise agreed in writing by the Service Provider, the Customer shall be responsible for all loss, damage or destruction to the Goods caused by fire, earthquake, water, adverse weather conditions, pilfering and any other causes whatsover , whether the Goods are partly or wholly installed or waiting to be installed at the site;

(i) offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and

(ii) will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.

(d) the Service Provider is only responsible for Goods that are replaced by the Service Provider and does not at any stage accept any liability in respect of previous services and/or goods supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify the Service Provider against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising; and

(e) in the event the Customer requests the Service Provider to work on a vehicle, and leaves the vehicle or the keys at the Service Provider’s premises whilst the site is unattended, then the Service Provider shall not be responsible for the security of the vehicle or the keys, and shall not be held liable for any loss, damages or costs howsoever resulting.

(f) if the Service Provider has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead; and

(g) all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Service Provider’s fact sheets, Price lists or advertising material are indicative only and that they have not relied on such information; and

(h) while the Service Provider may have provided information or figures to the Customer regarding the performance of the Goods, the Customer acknowledges that the Service Provider has given these in good faith and are estimates based on industry prescribed estimates.

7.5 The Service Provider will accept no responsibility for valuables or other items left in the Customer’s vehicle. It is the Customer’s responsibility to remove any valuables from the Customer’s vehicle prior to servicing/repair.

7.6 The Service Provider shall not be liable for the loss of or damage to the Customer’s vehicle, its accessories or contents while being repaired or operated in connection with the authorised Services (including in the event of a call-out, it shall be the Customer’s responsibility to remain with the vehicle to ensure security of the same), unless caused by the negligence of the Service Provider, or the Service Provider’s employees.

7.7 It is the Customer’s responsibility to ensure that the Customer’s vehicle is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at the Service Provider’s premises. The vehicle is at all times stored and repaired at the Customer’s sole risk.

8. Testing of vehicles

8.1 The Service Provider or its employees may test drive or carry out tests on the vehicle at the Service Provider’s discretion. The Service Provider will not be liable for (and the Customer indemnifies the Service Provider against) any damages caused to, or by, the vehicle during such tests, collecting or delivery unless it arises from the recklessness or wilful misconduct of the Service Provider or its employees.

9. Compliance with Laws

9.1 The Service Provider shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods and/or Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Services.

9.2 All work will be tested to ensure that it is electrically safe and is in accordance with the wiring rules and other standards applying to the electrical installation under the Electrical Safety Regulations. All of the cabling work will comply with the Australian and New Zealand Wiring standards.

10. Loan Vehicles

10.1 Loan Vehicles shall at all times remain the property of the Service Provider and are returnable on demand by the Service Provider.

10.2 The Loan Vehicle may only be driven during the period of loan by the Customer or any other person that the Service Provider agrees may drive the Loan Vehicle and then only if they hold a current driver's licence appropriate for the Loan Vehicle at the time when they are driving it.

10.3 The Customer shall:

(a) ensure that all reasonable care is taken in handling and parking the Loan Vehicle and that it is left securely locked when not in use;

(b) keep the Loan Vehicle in the Customer’s own possession and control and shall not allow the use of the Loan Vehicle by any third party;

(c) not alter or make any additions to the Loan Vehicle including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Loan Vehicle or in any other manner interfere with the Loan Vehicle; and

(d) keep the Loan Vehicle, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Service Provider to the Customer. In the event that the Loan Vehicle is not returned in clean condition then the Service Provider reserves the right to charge the Customer for all costs the Service Provider incurs in cleaning the Loan Vehicle.

10.4 The Customer acknowledges and agrees that they shall not permit any form of charge to be applied in relation to the Loan Vehicle and further agrees that they shall not be entitled to any form of lien over the Loan Vehicle.

10.5 The Customer shall be liable for any parking or traffic infringements, or related impoundment, towage and storage, and will supply all relevant details as required by the Police (and/or the Service Provider) relating to any such parking or traffic infringements or any other offences.

10.6 The Customer accepts full responsibility for and shall keep the Service Provider indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Loan Vehicle and whether or not arising from any negligence, failure or omission of the Customer or any other persons.

10.7 The Customer is not authorised to pledge the Service Provider’s credit for repairs to the Loan Vehicle or to create a lien over the Loan Vehicle in respect of any repairs.

10.8 The Customer, by signing this Contract, accepts that they shall be liable to the Service Provider for any loss of, or damage to, the Loan Vehicle and consequential loss to the full extent of any insurance excess (where applicable). In the event insurance is rendered invalid by any action of the Customer then the Customer shall be liable to the Service Provider for the full cost of repairing or replacing the Loan Vehicle (whichever is the lesser).

10.9 Any excess applied (plus GST) shall be for each and every claim. Window glass damage or breakage also carrries a separate excess.

11. Title

11.1 The Service Provider and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid the Service Provider all amounts owing to the Service Provider; and

(b) the Customer has met all of its other obligations to the Service Provider.

11.2 Receipt by the Service Provider 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.

11.3 It is further agreed that until ownership of the Goods passes to the Customer in accordance with clause 11.1:

(a) the Customer is only a bailee of the Goods and must return the Goods to the Service Provider on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Service Provider and must pay to the Service Provider the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;

(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Service Provider and must pay or deliver the proceeds to the Service Provider 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 Service Provider and must sell, dispose of or return the resulting product to the Service Provider as it so directs;

(e) the Customer irrevocably authorises the Service Provider to enter any premises where the Service Provider believes the Goods are kept and recover possession of the Goods;

(f) the Service Provider 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 Service Provider; and

(h) the Service Provider may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

12. Personal Property Securities Act 1999 (“PPSA”)

12.1 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

(b) a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by the Service Provider to the Customer, and the proceeds from such Goods as listed by the Service Provider to the Customer in invoices rendered from time to time.

12.2 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 Service Provider 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 Service Provider 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, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of the Service Provider; and

(d) immediately advise the Service Provider 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.

12.3 Unless otherwise agreed to in writing by the Service Provider, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

12.4 The Customer shall unconditionally ratify any actions taken by the Service Provider under clauses 12.1 to 12.3.

12.5 Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

13. Security and Charge

13.1 In consideration of the Service Provider 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, and the Customer grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

13.2 The Customer indemnifies the Service Provider from and against all the Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Service Provider’s rights under this clause.

13.3 The Customer irrevocably appoints the Service Provider and each director of the Service Provider as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.

14. Defective Goods

14.1 The Customer shall inspect the Goods on Delivery and shall within fourteen (14) days of Delivery (time being of the essence) notify the Service Provider of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Service Provider 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 fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Service Provider has agreed in writing that the Customer is entitled to reject, the Service Provider’s liability is limited to either (at the Service Provider’s discretion) replacing the Goods or repairing the Goods.

14.2 Goods will not be accepted for return other than in accordance with 14.1 above.

15. Warranty

15.1 Subject to the conditions of warranty set out in clause 15.2 the Service Provider warrants that if any defect in any Services provided by the Service Provider becomes apparent and is reported to the Service Provider within twelve (12) months of the date of Delivery (time being of the essence) then the Service Provider will either (at the Service Provider’s sole discretion) replace or remedy the defect.

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) failure on the part of the Customer to properly maintain any Goods or serviced item; or

(ii) failure on the part of the Customer to follow any instructions or guidelines provided by the Service Provider; or

(iii) any use of any Goods or serviced item otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Goods or serviced item after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(v) fair wear and tear, any accident or act of God.

(b) the warranty shall cease and the Service Provider shall thereafter in no circumstances be liable under the terms of the warranty if the defect is repaired, altered or overhauled without the Service Provider’s consent.

(c) in respect of all claims the Service Provider shall not be liable to compensate the Customer for any delay in either replacing or remedying the defective Goods or Services or in properly assessing the Customer’s claim.

15.3 The Customer acknowledges and agrees that the warranty offered under clause 15.1 will only be valid whilst the vehicle upon which the Services were completed remains in the Customer’s possession and ownership has not passed and is subject to the vehicle having an annual evaluation as well as the Customer following all maintenance and/or repairs required to the vehicle. The customer undertakes to ensure that any such maintenance and/or repairs are undertaken by a qualified tradesperson so that not to invalidate any warranty offered.

15.4 For Goods not manufactured by the Service Provider, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Service Provider shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

16. Consumer Guarantees Act 1993 and the Fair Trading Act 1986

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 (“CGA”) do not apply to the supply of Goods by the Service Provider to the Customer.

16.2 The Service Provider agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).

17. Intellectual Property

17.1 The Customer warrants that all designs, specifications or instructions given to the Service Provider will not cause the Service Provider to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Service Provider against any action taken by a third party against the Service Provider in respect of any such infringement.

17.2 The Customer agrees that the Service Provider may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Service Provider 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, at a rate of two and a half percent (2.5%) per calendar month (and at the Service Provider’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Customer owes the Service Provider any money the Customer shall indemnify the Service Provider from and against all costs and disbursements incurred by the Service Provider in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Service Provider’s collection agency costs, and bank dishonour fees).

18.3 Further to any other rights or remedies the Service Provider may have under this Contract, if a Customer has made payment to the Service Provider, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Service Provider under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.

18.4 Without prejudice to the Service Provider’s other remedies at law the Service Provider shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion the Customer will be unable to make a payment when it falls due;

(b) the Customer has exceeded any applicable credit limit provided by the Service Provider;

(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

19. Cancellation

19.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply of Services or purchase of Goods to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.

19.2 If the Service Provider, due to reasons beyond the Service Provider’s reasonable control, is unable to the deliver any Goods and/or Services to the Customer, the Service Provider may cancel any Contract to which these terms and conditions apply or cancel Delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. On giving such notice the Service Provider shall repay to the Customer any money paid by the Customer for the Goods and/or Services. The Service Provider shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.3 The Customer may cancel Delivery of the Goods and/or Services by written notice served within forty-eight (48) hours of placement of the order. Failure by the Customer to otherwise accept Delivery of the Goods and/or Services shall place the Customer in breach of this Contract.

19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

20. Privacy Policy

20.1 All emails, documents, images or other recorded information held or used by the Service Provider is “Personal Information” as defined and referred to in clause 20.3 and therefore considered confidential. The Service Provider acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. The Service Provider acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Service Provider that may result in serious harm to the Customer, the Service Provider will notify the Customer in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Customer by written consent, unless subject to an operation of law.

20.2 Notwithstanding clause 20.1, privacy limitations will extend to the Service Provider in respect of Cookies where the Customer utilises the Service Provider’s website to make enquiries. The Service Provider agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to the Service Provider when the Service Provider sends an email to the Customer, so the Service Provider may collect and review that information (“collectively Personal Information”).

If the Customer consents to the Service Provider’s use of Cookies on the Service Provider’s website and later wishes to withdraw that consent, the Customer may manage and control the Service Provider’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

20.3 The Customer authorises the Service Provider or the Service Provider’s agent to:

(a) access, collect, retain and use any information about the Customer;

(i) including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice 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 Service Provider from the Customer directly or obtained by the Service Provider 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.

20.4 Where the Customer is an individual the authorities under clause 20.3 are authorities or consents for the purposes of the Privacy Act 2020.

20.5 The Customer shall have the right to request (by e-mail) from the Service Provider, a copy of the Personal Information about the Customer retained by the Service Provider and the right to request that the Service Provider correct any incorrect Personal Information.

20.6 The Service Provider will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

20.7 The Customer can make a privacy complaint by contacting the Service Provider via e-mail. The Service Provider will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

21. Service of Notices

21.1 Any written notice given under this Contract 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 this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

21.2 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.

22. Trusts

22.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not the Service Provider may have notice of the Trust, the Customer covenants with the Service Provider as follows:

(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust, the trustees and the trust fund;

(b) the Customer has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be 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, the trustees and 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 during the term of the Contract without consent in writing of the Service Provider (the Service Provider 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 fund or trust property.

23. General

23.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.

23.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

23.3 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 Hamilton Courts of New Zealand.

23.4 Subject to the CGA, the liability of the Service Provider and the Customer under this Contract shall be limited to the Price.

23.5 The Service Provider may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent provided the assignment does not cause detriment to the Customer.

23.6 The Customer cannot licence or assign without the written approval of the Service Provider.

23.7 The Service Provider may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Service Provider’s sub-contractors without the authority of the Service Provider.

23.8 The Customer agrees that the Service Provider may amend their general terms and conditions for subsequent future Contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Service Provider to provide Goods and/or Services to the Customer.

23.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make any payment due to the Service Provider, following cessation of a Force Majeure.

23.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.