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Waipak NZ Limited – Terms and Conditions of Trade

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 Manufacturer’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 Manufacturer 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

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

(a) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and

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

1.4. “Goods” means all Goods or Services supplied by the Manufacturer 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. “Manufacturer” means Waipak NZ Limited, its successors and assigns.

1.6. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Manufacturer and the Customer in accordance with clause 6

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 accepts delivery of the Goods.

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 and accepts that:

(a) the supply of Goods on credit shall not take effect until the Customer has completed a credit application with the Manufacturer and it has been approved with a credit limit established for the account;

(a) in the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Manufacturer reserves the right to refuse delivery;

(a) lead times may apply to the Goods selected and the lead time may be longer where delays occur due to exact dimensions and final finish selections not being given to the Manufacturer in a timely manner. Lead times will commence from confirmation of a written order;

(a) the quality product specifications defines the purpose of the product; and

(a) all international sales contracts are subject to the current Incoterms as established and published by the International Chamber of Commerce (ICC).

2.5. 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. Authorised Representatives

3.1 Unless otherwise limited as per clause 3.2 the Customer agrees that should the Customer introduce any third party to the Manufacturer as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Goods or Services on the Customer’s behalf and/or to request any variation to the Goods or Services on the Customer’s behalf (such authority to continue until all requested Services have been completed or the Customer otherwise notifies the Manufacturer in writing that said person is no longer the Customer’s duly authorised representative).

3.2 In the event that the Customer’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Customer’s behalf then the Customer must specifically and clearly advise the Manufacturer in writing of the parameters of the limited authority granted to their representative.

3.3 The Customer specifically acknowledges and accepts that they will be solely liable to the Manufacturer for all additional costs incurred by the Manufacturer (including the Manufacturer’s profit margin) in providing any Goods, Services or variation/s requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions

4.1 The Customer acknowledges and accepts that the Manufacturer 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 Manufacturer 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 Manufacturer in respect of the Services.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Manufacturer; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Customer shall give the Manufacturer 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 Manufacturer as a result of the Customer’s failure to comply with this clause.

6. Price and Payment

6.1 At the Manufacturer’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Manufacturer to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to the Manufacturer’s current Price list; or
(c) the Manufacturer’s quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

6.2 The Manufacturer reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested (including any changes to specifications or quantities); or
(b) to reflect any increases to the Manufacturer in the cost of performing the carriage of the Goods, which are beyond the reasonable control of the Manufacturer (including, without limitation, increases in the cost of labour, materials, foreign exchange fluctuations, or increases in taxes or customs duties or insurance premiums, warehousing costs, provisions of any Acts, By-Laws, Order or Regulations of any parliament, municipality or local authority enacted after the date of contract between the Customer and the Manufacturer, and other manufacturing costs, etc.).

6.3 Variations will be charged for on the basis of the Manufacturer’s quotation, and will be detailed in writing, and shown as variations on the Manufacturer’s invoice. The Customer shall be required to respond to any variation submitted by the Manufacturer within ten (10) working days. Failure to do so will entitle the Manufacturer 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.

6.4 At the Manufacturer’s sole discretion a non-refundable deposit may be required.

6.5 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 Manufacturer, which may be:
(a) on or before delivery of the Goods;
(b) on completion of the Services;
(c) by way of instalments/progress payments in accordance with the Manufacturer’s payment schedule;
(d) 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;
(e) for approved credit account holders either, twenty (20, thirty (30) days or sixty (60) days following the date of any invoice;
(f) the date specified on any invoice or other form as being the date for payment; or
(g) 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 Manufacturer.

6.6 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Customer and the Manufacturer.

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

6.8 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 Manufacturer nor to withhold payment of any invoice because part of that invoice is in dispute.

6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Manufacturer an amount equal to any GST the Manufacturer must pay for any supply by the Manufacturer 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.

7. Delivery of Goods

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

7.2 The type of delivery contract applicable to international sales shall be specified in writing on the Manufacturer’s quotation as defined in accordance with the Incoterms.

7.3 At the Manufacturer’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.

7.4 The Manufacturer 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.

7.5 The Customer shall take Delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%;) and
(b) the Price shall be adjusted pro rata to the discrepancy.

7.6 Should Delivery be required sooner than the normal time requisite for the proper productions, every effort will be made by the Manufacturer to ensure Goods are free of defects, but reasonable allowance must be made by the Customer in such instances. Where such Delivery timeframes necessitate overtime, or other additional costs being incurred, a charge may (at the Manufacturer’s sole discretion), be made to cover any increased cost.

7.7 Any time specified by the Manufacturer for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. The Manufacturer will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then the Manufacturer shall be entitled to charge a reasonable fee for redelivery and/or storage.

8. Risk

8.1 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.

8.2 Notwithstanding clause 8.1, at the Manufacturer’s sole discretion, the Customer shall inspect the Goods prior to shipping and risk of damage to or loss of the Goods passes to the Customer on the date of shipping.

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

8.4 If the Customer requests the Manufacturer to leave Goods outside the Manufacturer’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.

8.5 The Manufacturer shall be entitled to rely on the accuracy of any plans, specifications (including CAD designs) and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Manufacturer accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

8.6 The Customer acknowledges that Goods manufactured may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Manufacturer will make every effort to match batches of Goods produced in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.

8.7 The Customer acknowledges that Goods supplied may:
(a) fade or change colour over time;
(b) expand, contract or distort as a result of exposure to heat, cold, weather;
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.

9. Product Specifications

9.1 The Customer acknowledges that all product quality specifications (PQS), samples and/or descriptive specifications, illustrations, drawings, data, dimensions, weights and manufacturing controls stated in the Manufacturer’s fact sheets, price lists or advertising material, and are given by way of identification. The Customer shall rely on such samples and/or information, and any inspection of the sample of Goods should account for the variations allowed for in manfacturing, unless expressly stated as such in writing by the Manufacturer.

10. Compliance with Laws

10.1 The Customer and the Manufacturer 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 Services, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Goods and Services.

10.2 Where the Customer has supplied products for the Manufacturer to complete the Services, the Customer acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the intended use and any faults inherent in those products. However, if in the Manufacturer’s opinion, it is believed that the materials supplied are non-conforming products and will not conform with New Zealand regulations, then the Manufacturer shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

10.3 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services (including, but not limited to, any taxes, duties, levies, customs and import duties (where applicable) etc.).

11. Title

11.1 The Manufacturer and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid the Manufacturer all amounts owing to the Manufacturer; and
(b) the Customer has met all of its other obligations to the Manufacturer.

11.2 Receipt by the Manufacturer 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 Manufacturer on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Manufacturer and must pay to the Manufacturer 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 Manufacturer and must pay or deliver the proceeds to the Manufacturer 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 Manufacturer and must sell, dispose of or return the resulting product to the Manufacturer as it so directs;
(e) the Customer irrevocably authorises the Manufacturer to enter any premises where the Manufacturer believes the Goods are kept and recover possession of the Goods;
(f) the Manufacturer 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 Manufacturer; and
(h) the Manufacturer 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 Manufacturer to the Customer, and the proceeds from such Goods as listed by the Manufacturer 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 Manufacturer 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 Manufacturer 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 Manufacturer; and
(d) immediately advise the Manufacturer 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 The Manufacturer and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

12.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

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

12.6 The Customer shall unconditionally ratify any actions taken by the Manufacturer under clauses 12.1 to 12.5.

12.7 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 Manufacturer 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 Manufacturer from and against all the Manufacturer’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Manufacturer’s rights under this clause.

13.3 The Customer irrevocably appoints the Manufacturer and each director of the Manufacturer 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. Defects

14.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify the Manufacturer of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Manufacturer 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 Manufacturer has agreed in writing that the Customer is entitled to reject, the Manufacturer’s liability is limited to either (at the Manufacturer’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, and provided that:
(a) the Manufacturer has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost within fourteen (14) days of the Delivery date; and
(c) the Manufacturer will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances; and
(e) exported Goods must be inspected prior to shipping.

14.3 The Manufacturer may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Goods plus any freight.

14.4 Subject to clause 14.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.

15. Warranty

15.1 For Goods not manufactured by the Manufacturer, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Manufacturer 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

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 Manufacturer to the Customer.

17. Intellectual Property

17.1 Where the Manufacturer has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Manufacturer. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Manufacturer.

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

17.3 The Customer agrees that the Manufacturer may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Manufacturer 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 Manufacturer’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 Manufacturer any money the Customer shall indemnify the Manufacturer from and against all costs and disbursements incurred by the Manufacturer in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Manufacturer’s collection agency costs, and bank dishonour fees).

18.3 Further to any other rights or remedies the Manufacturer may have under this Contract, if a Customer has made payment to the Manufacturer, 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 Manufacturer 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 Manufacturer’s other remedies at law the Manufacturer shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Manufacturer shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Manufacturer becomes overdue, or in the Manufacturer’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 Manufacturer;
(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.

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

18.3 Further to any other rights or remedies the Manufacturer may have under this Contract, if a Customer has made payment to the Manufacturer, 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 Manufacturer 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 Manufacturer’s other remedies at law the Manufacturer shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Manufacturer shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Manufacturer becomes overdue, or in the Manufacturer’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 Manufacturer;
(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 Manufacturer may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Manufacturer may suspend or terminate the supply of Goods to the Customer. The Manufacturer will not be liable to the Customer for any loss or damage the Customer suffers because the Manufacturer has exercised its rights under this clause.

19.2 The Manufacturer 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 Manufacturer shall repay to the Customer any money paid by the Customer for the Goods. The Manufacturer shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Manufacturer as a direct result of the cancellation (including, but not limited to, any loss of profits).

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 Manufacturer is “Personal Information” as defined and referred to in clause 20.3 and therefore considered confidential. The Manufacturer 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 Manufacturer acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Manufacturer that may result in serious harm to the Customer, the Manufacturer 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 Manufacturer in respect of Cookies where the Customer utilises the Manufacturer’s website to make enquiries. The Manufacturer 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 Manufacturer when the Manufacturer sends an email to the Customer, so the Manufacturer may collect and review that information (“collectively Personal Information”)
If the Customer consents to the Manufacturer’s use of Cookies on the Manufacturer’s website and later wishes to withdraw that consent, the Customer may manage and control the Manufacturer’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 Manufacturer or the Manufacturer’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 Manufacturer from the Customer directly or obtained by the Manufacturer 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 Manufacturer, a copy of the Personal Information about the Customer retained by the Manufacturer and the right to request that the Manufacturer correct any incorrect Personal Information.

20.6 The Manufacturer 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 Manufacturer via e-mail. The Manufacturer 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;
(c) by sending it by registered post to 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.

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;
(c) by sending it by registered post to 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 (“Trust”) then whether or not the Manufacturer may have notice of the Trust, the Customer covenants with the

Manufacturer 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 the Manufacturer (the Manufacturer 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.

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 courts of Hastings, New Zealand.

23.4 Subject to the CGA, the Manufacturer shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Manufacturer of these terms and conditions (alternatively the Manufacturer’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

23.5 The Manufacturer may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

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

23.7 The Manufacturer 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 Manufacturer’s sub-contractors without the authority of the Manufacturer.

23.8 The Customer agrees that the Manufacturer 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 Manufacturer to provide Goods 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 a payment to the Manufacturer.

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.