New Style Blinds and Curtains (2017) Limited - Terms & Conditions of Trade

1. Definitions

1.1 “NSB” means New Style Blinds and Curtains (2017) Limited, its successors and assigns or any person acting on behalf of and with the authority of New Style Blinds and Curtains (2017) Limited.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting NSB to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

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

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

1.3 “Goods” means all Goods or Services supplied by NSB to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between NSB and the Client in accordance with clause 6 below.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.

2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and NSB.

2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

2.4 The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, NSB reserves the right to vary the Price with alternative Goods as per clause 6.2, subject to prior confirmation and agreement of both parties. NSB also reserves the right to halt all Services until such time as NSB and the Client agree to such changes. NSB shall not be liable to the Client for any loss or damage the Client suffers due to NSB exercising its rights under this clause.

2.5 The Client acknowledges and accepts that where the worksite is over two metres (2m) in height, it will require NSB to supply dual personnel. Where the Client fails to advise NSB of this extra charges may apply to complete the Services which will be on charged to the Client in accordance with clause 6.2.

2.6 Changes to fabric and/or colour selection must be received in writing via email within two (2) business days of acceptance of a quote to allow suitable lead times for the manufacture of the Goods. Any variation to the Goods received outside this timeframe will be charged for in accordance with clause 6.2(a).

3. Authorised Representatives

3.1 The Client acknowledges that NSB shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to NSB, that person shall have the full authority of the Client to order any Goods, Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to NSB for all additional costs incurred by NSB (including NSB’s profit margin) in providing any Goods, Services or variation/s requested thereto by the Client’s duly authorised representative.

4. Errors and Omissions

4.1 The Client acknowledges and accepts that NSB 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 NSB 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 NSB 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 NSB; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Client shall give NSB not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by NSB as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At NSB’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by NSB to the Client; or

(b) NSB’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 NSB reserves the right to change the Price:

(a) if a variation to the Goods which are to be supplied is requested; or

(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

(c) if during the course of the Services, the Goods are not or cease to be available from NSB’s third party suppliers, then NSB reserves the right to provide alternative Goods; or

(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, limitations to accessing the site, Client’s fixings are not fit for purpose and require strengthening, scaffolding required or not compliant, safety considerations, additional personnel required, prerequisite work by any third party not being completed or code compliant, or delays caused by third party contractors etc.) which are only discovered on commencement of the Services; or

(e) in the event of increases to NSB in the cost of labour or materials which are beyond NSB’s control.

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

(a) on delivery of the Goods;

(b) before delivery of the Goods;

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

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

(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by NSB.

6.6 Payment for any indent or bespoke Goods is due and payable at the time the Client places an order with NSB.

6.7 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 Client and NSB.

6.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by NSB 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 Client must pay to NSB an amount equal to any GST NSB must pay for any supply by NSB under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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

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

(a) the Client or the Client’s nominated carrier takes possession of the Goods at NSB’s address; or

(b) NSB (or NSB’s nominated carrier) delivers the Goods to the Client’s nominated address (as detailed on any order form) even if the Client is not present at the address, where no address is stated on the order the Goods will be delivered to the Client’s physical address as set out in the application for credit.

7.2 At NSB’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.

7.3 Where the delivery location is more than twenty-five metres (25m) from the worksite, then additional cost may be charged by NSB to the Client for moving Goods and/or other items to the worksite.

7.4 Subject to clause 7.5 it is NSB’s responsibility to ensure that the Services start as soon as it is reasonably possible.

7.5 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that NSB claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond NSB’s control, including but not limited to any failure by the Client to:

(a) make a selection; or

(b) have the site ready for the Services; or

(d) stock availability.

7.6 The Client acknowledges and accepts that where the Client wishes to postpone the Services that NSB must be notified via email within two (2) business day of the proposed commencement date as agreed to between both parties. Where such notice is received outside this timeframe, NSB reserves the right to charge a reasonable fee for the delay in the commencement of the Services.

7.7 Where the Services are commenced and then delayed by the Client for a period greater than six (6) months, then payment for the Services must be made in full if not already done so and NSB shall reserve the right to requote for the remainder of the Services outstanding.

7.8 NSB 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.

7.9 Any time specified by NSB for delivery of the Goods is an estimate only and NSB will not be liable for any loss or damage incurred by the Client 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 NSB is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then NSB 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 Client on Delivery and the Client must insure the Goods on or before Delivery.

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

8.3 If the Client requests NSB to leave Goods outside NSB’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

8.4 Where NSB has effected delivery all risk passes to the Client as per clause 8.1 and the Client claims the Goods have been stolen it shall be the Client’s responsibility to notify the police and forward evidence to NSB, this shall not excuse the Client from fulfilling their financial obligations under this contract.

8.5 Where NSB gives advice or recommendations to the Client, or the Client’s agent, regarding any aspect of the scope of the works (including but not limited to, a particular course of action, or product selection), and such advice or recommendations are not acted upon, then NSB shall require the Client or their agent to authorise commencement of the Services in writing. NSB shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services nor will such losses or damages be deemed a defect.

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

8.7 Where NSB is required to install the Goods the Client warrants that the structure of the premises upon which these Goods are to be installed is sound and will sustain the installation and work incidental thereto (including that all fixings that the Goods are to be installed are suitable for their intended use). Where fixings need strengthening in order to withstand the installation all additional cost incurred by NSB will be on charged to the Client in accordance with clause 6.2(d). NSB shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises be unable to accommodate the installation.

8.8 NSB shall not be liable whatsoever for:

(a) any loss or damage to the Services that is caused by any other tradesmen during and after the completion of the Services; or

(b) delays caused by any other third party suppliers that impacts on the provision of the Services by NSB;

(d) any defect or damage resulting from incorrect or faulty installation carried out by any other third party; and

(e) if the Client instructs NSB to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at NSB normal hourly rate; and

(f) if the Client request NSB to alter products supplied but not manufactured by NSB, the Client acknowledges and accepts that no warranty will apply for those products.

9. Accuracy of Client’s Plans and Measurements

9.1 NSB shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.

9.2 If the giving of a quotation for the provision of the Services involves NSB estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of NSB’s estimated measurements and quantities, before the Client accepts such quotation. Should the Client require any changes to NSB’s estimated measurements and quantities, the Client shall request such changes in writing before acceptance of that quotation.

10. Client’s Responsibilities

10.1 The Client shall ensure that NSB has clear, unobstructed and free access to the site at all times to enable them to undertake the Services; and

(a) NSB shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas etc.) unless due to NSB’s negligence; and

(b) provide clear room for installation, including access to the windows. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by NSB in this regard; and

(c) if the Services are interrupted by the failure of the Client to adhere to the work schedule agreed to between NSB and the Client, any additional costs will be invoiced to the Client as a variation in accordance with clause 6.2; and

(d) if installation of the Goods requires NSB to work with the Client’s third party contractors, the Client shall provide NSB prior to the commencement of the Services with a schedule of installation which shall include sufficient time allowed for NSB to meet Delivery and/or supply dates.

10.2 It is the intention of NSB and agreed by the Client that it is the responsibility of the Client to:

(a) provide and have erected scaffolding to enable the Services to be undertaken (where in NSB’s opinion it is deemed necessary). It is also agreed that all scaffolding erected will comply with industry safety standards and that any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection and where necessary shall hold a current certificate of competency and/or be fully licensed. Failure of the Client to adhere to this clause and the responsibility falls on NSB, all cost involved in hiring said equipment will be on-charged to the Client in accordance with clause 6.2; and

(b) supply all the necessary facilities required for the installation of the Goods and/or provision of the Services (including but not limited to, electricity, temporary lighting, unloading, hoisting and lifting facilities, site preparation and employees amenities, etc.); and

10.3 Unless otherwise stated elsewhere in this contract, until ownership passes in accordance with clause 12, Goods which NSB brings to the site which are surplus will be left on-site and remain the responsibility of the Client.

10.4 Notwithstanding the provisions of clause 8.1, where NSB requires that Goods, fittings, or tools, etc. required for the Services be stored at the site, the Client shall supply NSB a safe area for storage and shall take all reasonable efforts to protect all items from possible 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.

11. Compliance with Laws

11.1 The Client agrees that the site will comply with any WorkSafe guidelines and the Health and Safety at Work Act 2015 relating to building/construction sites and any other relevant safety standards or legislation.

11.2 The Client shall:

(a) be liable for any costs incurred by NSB due to the Client’s failure to comply with clause 11.1; and

(b) obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.

11.3 NSB has not and will not at any time assume any obligation as the Client’s agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) arising out of the engagement. The parties agree that for the purposes of the HSW Act, NSB shall not be the person who controls the place of work in terms of the HSW Act.

12. Title

12.1 NSB and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid NSB all amounts owing to NSB; and

(b) the Client has met all of its other obligations to NSB.

12.2 Receipt by NSB 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.

12.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 12.1:

(a) the Client is only a bailee of the Goods and must return the Goods to NSB on request.

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

(c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for NSB and must pay or deliver the proceeds to NSB on demand.

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of NSB and must sell, dispose of or return the resulting product to NSB as it so directs.

(e) the Client irrevocably authorises NSB to enter any premises where NSB believes the Goods are kept and recover possession of the Goods.

(f) NSB may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Client 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 NSB.

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

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

13.1 Upon assenting to these terms and conditions in writing the Client 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 and/or collateral (account) - being a monetary obligation of the Client to NSB for Services - that have previously been supplied and that will be supplied in the future by NSB to the Client.

13.2 The Client 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 NSB may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, NSB 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 and/or collateral (account) in favour of a third party without the prior written consent of NSB; and

(d) immediately advise NSB 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.

13.3 NSB and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

13.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

13.5 Unless otherwise agreed to in writing by NSB, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

13.6 The Client shall unconditionally ratify any actions taken by NSB under clauses 13.1 to 13.5.

14. Security and Charge

14.1 In consideration of NSB agreeing to supply the Goods, the Client 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 Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

14.2 The Client indemnifies NSB from and against all NSB’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising NSB’s rights under this clause.

14.3 The Client irrevocably appoints NSB and each director of NSB as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.

15. Defects

15.1 The Client shall inspect the Goods on delivery and shall within five (5) days of delivery (time being of the essence) notify NSB in writing of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford NSB an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which NSB has agreed in writing that the Client is entitled to reject, NSB’s liability is limited to either (at NSB’s discretion) replacing the Goods or repairing the Goods.

15.2 Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:

(a) NSB has agreed in writing to accept the return of the Goods; and

(b) NSB will not be liable for Goods which have not been stored or used in a proper manner; and

(c) 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.

15.3 NSB may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight.

15.4 Subject to clause 15.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.

16. Warranty

16.1 Subject to the conditions of warranty set out in clause 16.2 NSB warrants that if any defect in any workmanship of NSB becomes apparent and is reported to NSB within twelve (12) months of the date of delivery (time being of the essence) then NSB will either (at NSB’s sole discretion) replace or remedy the workmanship.

16.2 The conditions applicable to the warranty given by clause 16.1 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 Client to properly maintain any Goods; or

(ii) failure on the part of the Client to follow any instructions or guidelines provided by NSB; or

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

(iv) the continued use of any Goods 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 NSB shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without NSB’s consent.

(c) in respect of all claims NSB shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

16.3 For Goods not manufactured by NSB, the warranty shall be the current warranty provided by the manufacturer of the Goods. NSB 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.

17. Consumer Guarantees Act 1993

17.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by NSB to the Client.

18. Intellectual Property

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

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

18.3 The Client agrees that NSB may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which NSB has created for the Client.

19. Default and Consequences of Default

19.1 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 NSB’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2 At NSB’s sole discretion, should any account become overdue from the agreed payment due date then an administration fee may be charged which sum shall become immediately due and payable.

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

19.4 Further to any other rights or remedies NSB may have under this contract, if a Client has made payment to NSB, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by NSB under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.

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

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

(b) the Client has exceeded any applicable credit limit provided by NSB;

(c) the Client 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 Client or any asset of the Client.

20. Cancellation

20.1 Without prejudice to any other remedies NSB may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions NSB may suspend or terminate the supply of Goods to the Client. NSB will not be liable to the Client for any loss or damage the Client suffers because NSB has exercised its rights under this clause.

20.2 NSB 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 Client. On giving such notice NSB shall repay to the Client any money paid by the Client for the Goods. NSB shall not be liable for any loss or damage whatsoever arising from such cancellation.

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

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

21. Privacy Act 1993

21.1 The Client authorises NSB or NSB’s agent to:

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

(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Client.

(b) disclose information about the Client, whether collected by NSB from the Client directly or obtained by NSB 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 Client.

21.2 Where the Client is an individual the authorities under clause 21.1 are authorities or consents for the purposes of the Privacy Act 1993.

21.3 The Client shall have the right to request NSB for a copy of the information about the Client retained by NSB and the right to request NSB to correct any incorrect information about the Client held by NSB.

22. Service of Notices

22.1 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.

22.2 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.

23. Trusts

23.1 If the Client 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 NSB may have notice of the Trust, the Client covenants with NSB as follows:

(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client 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 Client against the Trust or the trust fund. The Client 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 Client will not without consent in writing of NSB (NSB will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i) the removal, replacement or retirement of the Client 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.

24. General

24.1 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.

24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Courts of Christchurch, New Zealand.

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

24.4 NSB may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

24.5 The Client cannot licence or assign without the written approval of NSB.

24.6 NSB 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 Client agrees and understands that they have no authority to give any instruction to any of NSB’s sub-contractors without the authority of NSB.

24.7 The Client agrees that NSB may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for NSB to provide Goods to the Client.

24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

24.9 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.