Terms & Conditions of Trade

1. Definitions
   • “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.
   • “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 Supplier’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.
   • “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
     • if there is more than one Customer, is a reference to each Customer jointly and severally; and
     • if the Customer is a partnership, it shall bind each partner jointly and severally; and
     • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
     • includes the Customer’s executors, administrators, successors and permitted assigns.
   • “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) in New Zealand Dollars for the Products and Services as agreed between the Supplier and the Customer in accordance with clause 9
   • “Products” means all Products or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).
   • “Supplier” means Nutritional Medicine Limited T/A Nutritional Medicine NZ, its successors and assigns.

2. Acceptance
   • 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 Products.
   • 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.
   • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
   • The Customer acknowledges and accepts that:
     • the supply of Products on credit shall not take effect until the Customer has completed a credit application with the Supplier and it has been approved with a credit limit established for the account. In the event that the supply of Products requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery;
     • the supply of Products for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, the Supplier reserves the right to vary the Price with alternative Products as per clause 2.; 
     • where the Supplier is requested to formulate a new product and carry out necessary testing, then all associated costs over and above any agreed unit price shall be borne by the Customer and invoiced as an extra in accordance with clause 2.;
     • where the Customer does not elect to control their purchases by a purchase order and/or a letter of authority, then all purchases made by the Customer and/or any other third party acting on behalf of the Customer to which the Products are charged to the Customer’s credit account, shall remain at all times payable by the Customer. All said notices of restrictions pertaining to purchases must be in writing and will remain in place until such time as the Customer revokes.
   • The Customer agrees to notify the Supplier in writing immediately upon of the departure of the Customer’s employee if an authorised account user. Failure to advise the Supplier of such departures, then the Customer acknowledges they will be bound by all purchase orders made by that account user.
   • These terms and conditions are meant to be read in conjunction with the terms and Conditions posted on the Supplier’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
   • 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
   • The Customer acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
     • resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or
     • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.
   • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control
   • The Customer shall give the Supplier 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 Supplier as a result of the Customer’s failure to comply with this clause.

5. On-Line Ordering
   • The Customer acknowledges and agrees that:
     • the Supplier does not guarantee the website’s performance;
     • display on the website does not guarantee the availability of any particular Products; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Supplier
     • on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
     • there are inherent hazards in electronic distribution, and as such the Supplier cannot warrant against delays or errors in transmitting data between the Customer and the Supplier including orders, and you agree that to the maximum extent permitted by law, the Supplier will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
     • when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by the Supplier and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and
     • if the Customer is not the cardholder for any credit card being used to pay for the Products, the Supplier shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
   • The Supplier reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of the Supplier’s business, or violated these terms and conditions.

6. Credit Card Information
   • The Supplier will:
     • keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by the Supplier;
     • not disclose the Customer’s credit card details to any third party; and
     • not unnecessarily disclose any of the Customer’s personal information, except is accordance with the Privacy Act (clause 23) or where required by law.
   • The Customer expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the Customer, or any other additional charges are due from the Customer, the Supplier is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Contract.

7. Distribution of Goods via an Approved Distributor
   • The Customer agrees that until they are authorised as a distributor by the Supplier, (and hereinafter the Customer shall be referred to as “Distributor” for the purposes of this clause) the Distributor shall not be able to sell the Products on as a Distributor for the Supplier or represent to any third parties that the Distributor is in any way acting for the Supplier. The Supplier shall not accept responsibility or agree to be bound in any way by any contracts with third parties to whom the Distributor is a party.
   • At the Supplier’s sole discretion the Distributor acknowledges that only approved Distributor’s shall have the authority to accept internet orders via their respective website and/or any alternative online sites.
   • Orders from a Distributor are accepted on the basis that;
     • unless otherwise agreed by prior approval between the Supplier and the Distributor, Products may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale,
     • Products are to be sold for retail or displayed for sale at only the nominated locations advised by the Distributor to the Supplier,
     • sale of Products by mail order, internet or any other method outside of the traditional display and sell at the approved location is prohibited without prior written consent of the Supplier, and
     • Products are to be displayed, presented and marketed in the manner that is in the best interest of the brand name.
   • Any default of clauses 1 to 7.3 may at the Supplier’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
   • The Supplier has sole discretion:
     • on which brands or Products are made available to any approved Distributor and the Supplier does not guarantee continuing supply of any specific brand or Products; and
     • over which geographical locations it chooses to supply the Supplier’s Products and will not be limited by any given number of Distributors in any given location.

8. Products On Consignment
   • Where Products are supplied on consignment the following provisions apply specifically to those Products:
     • the Products shall be at the Customer’s risk from the time of delivery and the Customer shall be responsible for insuring the Products;
     • the Customer may retain possession of the Products until the Customer sells them or the Supplier requires re-delivery of them to the Supplier, whichever first occurs;
     • if the Supplier requires re-delivery of the Products such re-delivery shall be at the Customer’s cost; and
     • the Supplier shall email the Customer a consignment form on a monthly basis and the Customer shall notify the Supplier within forty-eight (48) hours of receipt by return email of all consignment Products sold during that period and shall pay the Supplier for the Products sold. Failure to comply with confirmation will result in the Supplier’s right to invoice the Customer for all consignment Products held in stock.
   • Furthermore, consignment Products shall at all times remain the property of the Supplier and are returnable on demand by the Supplier. In the event that the consignment Products are not returned to the Supplier in the condition in which the consignment Products were delivered then the Supplier retains the right to charge the cost of replacement of the consignment Products.
   • The Customer further agrees that;
     • the Supplier has the right to inspect the consignment Products at any time upon giving written notice to the Customer;
     • the Supplier reserves the right to cease the supply of consignment Products and enforce clause 2 if upon inspection it is found the consignment Products totals do not correspond with information supplied by the Customer and/or the consignment Products are not stored in accordance with the Supplier’s instructions;
     • consignment Products shall be placed on display together with any advertising material supplied by the Supplier to the Customer;
     • the Customer is responsible for the upkeep of the stand and agrees to take all due care to ensure that the consignment Products are not damaged or marked in any way; and
     • they shall immediately advise the Supplier if for any reason they opt to remove the consignment Products from the display area.

9. Price and Payment
   • At the Supplier’s sole discretion the Price shall be either:
     • as indicated on any invoice provided by the Supplier to the Customer; or
     • the Price as at the date of Delivery of the Products according to the Supplier’s current Price list; or
     • the Supplier’s quoted Price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
   • The Supplier reserves the right to change the Price:
     • if a variation to the Products which are to supplied is requested; or
     • if during the course of the Services, the Products cease to be available from the Supplier’s third-party suppliers, then the Supplier reserves the right to provide alternative Products, subject to prior confirmation and agreement of both parties; or
     • in the event of increases to the Supplier in the cost of labour or materials (including, but not limited to, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or freight and insurance charges, or increases in taxes, customs duties, warehousing costs, provisions of any Acts, By-Laws, Order or Regulations of any parliament, municipality or local authority) which are beyond the Supplier’s control.
   • Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Customer shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier 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.
   • At the Supplier’s sole discretion a non-refundable deposit may be required.
   • Time for payment for the Products being of the essence, the Price will be payable by the Customer on the date/s determined by the Supplier, which may be:
     • before delivery of the Products;
     • the date specified on any invoice or other form as being the date for payment; or
     • 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 Supplier.
   • Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Supplier.
   • The Supplier may in its discretion allocate any payment received from the Customer towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Products.
   • 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 Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
   • Unless otherwise stated, the price does not include GST. In addition to the Price, the Customer must pay any other charges, GST and other taxes and duties that may be applicable except when they are expressly included in the Price.

10. Delivery of Products
    • Delivery (“Delivery”) of the Products is taken to occur at the time that:
      • the Customer or the Customer’s nominated carrier takes possession of the Products at the Supplier’s address; or
      • the Supplier (or the Supplier’s nominated carrier) delivers the Products to the Customer’s nominated address even if the Customer is not present at the address.
    • At the Supplier’s sole discretion the cost of Delivery is in addition to the Price.
    • The Supplier may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    • Any time specified by the Supplier for Delivery of the Products is an estimate only. The Customer must take Delivery by receipt or collection of the Products whenever they are tendered for Delivery. The Supplier 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 Products as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage.

11. Risk
    • Risk of damage to or loss of the Products passes to the Customer on Delivery and the Customer must insure the Products on or before Delivery.
    • If any of the Products are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
    • If the Customer requests the Supplier to leave Products outside the Supplier’s premises for collection or to deliver the Products to an unattended location then such Products shall be left at the Customer’s sole risk.

12. Compliance with Laws
    • The Customer and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government (including, but not limited to, any New Zealand health and safety regulations and standards etc), local and other public authorities that may be applicable to the Products and/or Services.
    • It is the Customer’s responsibility to ensure that all applicable health and safety regulations (including import rules, regulations, duties and taxes at the place of destination) are observed and other appropriate steps taken in relation to the storage, handling and use of the Products and where information is supplied to the Customer on potential hazards relating to the Products to bring such information to the attention of its employees, agents, sub-contractor, visitors and customers. Without prejudice to the foregoing it is also the Customer’s responsibility to provide safe facilities for the reception of the Products into storage including the unloading of Products from carriers. The Customer hereby indemnifies and shall keep indemnified the Supplier against all action claims, demands, summons, suits proceedings judgments, orders or decrees arising out of or in connection with any act or omission of the Customer in respect of its obligations pursuant to this clause.
    • The Customer shall obtain (at the expense of the Customer’s) all licenses,and approvals that may be required for the Services.

13. Protection of Reputation
    • Any misuse, misrepresentation or any other action that negatively impacts the Supplier’s brand (including, but not limited to, online sales and/or marketing campaigns) which is deemed to damage and/or tarnish the reputation of the Supplier’s brand, may result in the Supplier’s mitigating that damage by refusing the Customer the right to continue to represent the Supplier.

14. Title
    • The Supplier and the Customer agree that ownership of the Products shall not pass until:
      • the Customer has paid the Supplier all amounts owing to the Supplier; and
      • the Customer has met all of its other obligations to the Supplier.
    • Receipt by the Supplier 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.
    • It is further agreed that until ownership of the Products passes to the Customer in accordance with clause 1:
      • the Customer is only a bailee of the Products and must return the Products to the Supplier on request;
      • the Customer holds the benefit of the Customer’s insurance of the Products on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
      • the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand;
      • the Customer should not convert or process the Products 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 Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs;
      • the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Products are kept and recover possession of the Products;
      • the Supplier may recover possession of any Products in transit whether or not Delivery has occurred;
      • the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of the Supplier; and
      • the Supplier may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Customer.

15. Personal Property Securities Act 1999 (“PPSA”)
    • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
      • these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      • a security interest is taken in all Products that have previously been supplied and that will be supplied in the future by the Supplier to the Customer, and the proceeds from such Products as listed by the Supplier to the Customer in invoices rendered from time to time.
    • The Customer undertakes to:
      • 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 Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      • indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby;
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products or the proceeds of such Products in favour of a third party without the prior written consent of the Supplier; and
      • immediately advise the Supplier of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
    • The Supplier and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    • The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
    • Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    • The Customer shall unconditionally ratify any actions taken by the Supplier under clauses 1 to 15.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

16. Security and Charge
    • In consideration of the Supplier agreeing to supply the Products, 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.
    • The Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
    • The Customer irrevocably appoints the Supplier and each director of the Supplier as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
17. Defects and Returns
    • The Customer shall inspect the Products on Delivery and shall within three (3) days of Delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Supplier an opportunity to inspect the Products within a reasonable time following Delivery if the Customer believes the Products are defective in any way. If the Customer fails to comply with these provisions the Products shall be presumed to be free from any defect or damage. For defective Products, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to (at the Supplier’s discretion) replacing the Products.
    • Products will not be accepted for return other than in accordance with 1 above, and provided that:
      • the Supplier has agreed in writing to accept the return of the Products; and
      • the Products are returned at the Customer’s cost within five (5) days of the Delivery date; and
      • the Supplier will not be liable for Products which have not been stored or used in a proper manner; and
      • the Products 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.
    • The Supplier may (in its discretion) accept the return of Products for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Products plus any freight.

18. Warranty
    • For Products not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Products. The Supplier 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 Products.

19. Consumer Guarantees Act 1993
    • If the Customer is acquiring Products 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 Products by the Supplier to the Customer.

20. Intellectual Property
    • Where the Supplier has designed, drawn or developed Products for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Supplier. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Supplier.
    • The Customer warrants that all designs, specifications or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
    • The Customer agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products which the Supplier has created for the Customer.

21. Default and Consequences of Default
    • 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 Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Customer owes the Supplier any money the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
    • Further to any other rights or remedies the Supplier may have under this Contract, if a Customer has made payment to the Supplier, 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 Supplier under this clause 21 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.
    • Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
      • any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to make a payment when it falls due;
      • the Customer has exceeded any applicable credit limit provided by the Supplier;
      • 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
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

22. Cancellation
    • Without prejudice to any other remedies the Supplier 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 Supplier may suspend or terminate the supply of Products to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
    • The Supplier may cancel any Contract to which these terms and conditions apply or cancel Delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Products. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Customer cancels Delivery of Products the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for Products 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.

23. Privacy Policy
    • All emails, documents, images or other recorded information held or used by the Supplier is “Personal Information” as defined and referred to in clause 3 and therefore considered confidential. The Supplier 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 Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Supplier that may result in serious harm to the Customer, the Supplier 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.
    • Notwithstanding clause 1, privacy limitations will extend to the Supplier in respect of Cookies where the Customer utilises the Supplier’s website to make enquiries. The Supplier 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:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to the Supplier when the Supplier sends an email to the Customer, so the Supplier may collect and review that information (“collectively Personal Information”)

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

• The Customer authorises the Supplier or the Supplier’s agent to:
  • access, collect, retain and use any information about the Customer;
    • 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
    • for the purpose of marketing products and services to the Customer.
  • disclose information about the Customer, whether collected by the Supplier from the Customer directly or obtained by the Supplier 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.
• Where the Customer is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 2020.
• The Customer shall have the right to request (by e-mail) from the Supplier, a copy of the Personal Information about the Customer retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information.
• The Supplier 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.
• The Customer can make a privacy complaint by contacting the Supplier via e-mail. The Supplier 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.

24. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person;
      • by leaving it at the address of the other party as stated in this Contract;
      • by sending it by registered post to the address of the other party as stated in this Contract;
      • 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;
      • if sent by email to the other party’s last known email address.
    • 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
    • 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 Supplier may have notice of the Trust, the Customer covenants with the Supplier as follows:
      • the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
      • 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;
      • the Customer will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Customer as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.

26. Confidentiality
    • Subject to clause 2, each party agrees to treat as confidential the other party’s confidential information, and agree to:
      • not disclose or use the confidential information, except in accordance with this Contract;
      • keep the confidential information (and any material containing or relating to any confidential information) secure;
      • ensure that there is no unauthorised disclosure or use of the confidential information.
    • However, confidential information:
      • can be disclosed to the extent reasonably necessary to allow an employee, officer or adviser to carry out their duties to the other party (provided that the person agrees to use the confidential information for no other purpose), if required by law, or to enforce their rights under this Contract or defend a claim made against them in connection with this Contract; and
      • excludes information:
        • generally available in the public domain (without unauthorised disclosure under this Contract);
        • received from a third party entitled to disclose it;
        • that is independently developed.
      • Either party must promptly return or destroy all confidential information of the other party in its possession or control at the other party’s request unless required by law to retain it.

27. General
    • 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.
    • 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.
    • 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 North Shore, Auckland, New Zealand.
    • Subject to the CGA, the Supplier 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 Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Products).
    • The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
    • The Customer cannot licence or assign without the written approval of the Supplier.
    • The Supplier 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 Supplier’s sub-contractors without the authority of the Supplier.
    • The Customer agrees that the Supplier 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 Supplier to provide Products to the Customer.
    • 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 Supplier.
    • 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.