GLOBAL SURVEY LIMITED
TERMS AND CONDITIONS
The terms and conditions set out below (hereinafter referred to as “these Terms and Conditions”), together with the express terms of any other agreement we enter into with you (if applicable), form the Agreement between us (as defined below) and you (as defined below) relating to any Goods or Services to be provided by us.
You will be deemed to have accepted these Terms and Conditions (as amended by us from time to time) in relation to any transaction with us (regardless of whether they are signed by you).
1.1 In this contract:
- Words importing the singular shall include the plural and vice versa (unless the context requires otherwise).
- “Agreement”, in relation to any particular Goods or Services we supply, means these Terms and Conditions together with any other Related Agreements regarding our provision of those Goods or Services (if any).
- “Goods” means any goods which we supply to you;
- “PPSA”” means the Personal Property Securities Act 1999.
- “Purchase Price” means the total purchase price payable to us for any Goods we supply to you.
- “Related Agreements” means any specific written contracts we enter into with you, including without limitation any contracts for sale or hire of any Goods, and any contracts for supply of Services;
- “Services” means any Services which we supply to you;
- “Us” means Global Survey Limited.
- “You” means the person, company or other business contracting with us as our customer for any Goods or Services we provide.
2.1 Subject only to anything expressly set out in any Related Agreements we enter into with you, these Terms and Conditions shall apply to any and all arrangements of any kind between us, including without limitation, any arrangements involving us providing Goods or Services of any kind to you.
2.2 These Terms and Conditions may only be varied in writing signed by one of our directors or another expressly authorised signatory and no other employee, agent or representative shall have any authority to amend, modify or add to these Terms and Conditions on our behalf.
2.3 We reserve the right at any time or from time to time, to amend, vary or add to these Terms and Conditions with effect from the date of notification to you.
3. PAYMENT OBLIGATIONS
3.1 Goods and Services Tax ("GST"): All amounts are (except where expressly stated otherwise) exclusive of GST.
3.2 Time for Payment: Time is of the essence for all payments due to us. Except where expressly agreed otherwise by us in any Related Agreements, you must pay us as follows:
- For sale of any Goods, you must pay us in full on or before delivery of the Goods. For account holders who are extended credit, at the sole discretion of the company, payment must be made on the 20th of the month following invoice, or as agreed in writing.
- For hire of any Goods, you must pay us monthly as set out in the relevant Related Agreement;
- For any Services we provide, you must pay us the date expressly agreed in the relevant Related Agreement, and if there is no such express agreement, you must pay us on or before the 20th of the month following the date of invoice;
3.3 No Set off or Deduction: No payment due to us shall be withheld, reduced, set off or deferred on account of any claim, counter-claim, set-off or otherwise.
3.4 Application of Payments: We may at our discretion apply any payments we receive from you in and towards the satisfaction of any your indebtedness and we shall not be bound by any conditions or qualifications that you may make in relation to payments made under this or any other contract with us.
4. DELIVERIES AND RETURN OF GOODS
4.1 Delivery and Acceptance:
- You agree to accept delivery of the Goods and Services by instalments if required to do so by us. If a delivery date is specified by you, we will in no circumstances be liable for any loss or damage of any kind whatsoever suffered or incurred by you as a consequence of part, or late delivery of any Goods or Services. Any delay in delivery will not constitute a breach by us of any of these terms and conditions or constitute grounds for you to cancel the order for the Goods and Services or this agreement.
- Despite any retention of ownership on the Goods by us as provided under Clauses 5 and 6, the risk in (and insurance responsibility for) the Goods passes to you upon delivery. Delivery takes place at the earlier of:
- The date on which the Goods are delivered to your nominated address; and
- The date on which you (or your nominated carrier/agent) are given possession of the Goods at our address or any other location agreed between you and us.
- We will not be responsible for delivery delays or defaults by freight/courier/carrier companies or consequential loss or damage arising from them.
- You will make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. If you are unable to take delivery as arranged, we will be entitled to charge a reasonable fee for redelivery.
- Unless written notice to the contrary is received by us with 3 days of delivery:
- The Goods will be deemed to be in good condition; and
- The quantities of the Goods set out in the relevant delivery advice or invoice shall be deemed to be correct.
- If any of the Goods are damaged or destroyed following delivery but while we retain title, we are entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
- Where delivery is requested urgently by you, all charges for delivery will be charged to you.
- Return of Goods will be at our sole discretion and requires our prior authorisation for return, subject to our delivery and returns policy <insert hyperlink> as notified to you from time to time including, without limitation, by email or on our website.
- Non-standard items supplied to specification or specially indented items are not returnable for credit.
- Where Goods are accepted for return, you are responsible for returning them to us including but not limited to the return freight costs and any additional costs as applicable.
- Goods authorised for return must be in “as new” condition, undamaged, and in the original packaging.
- At our sole discretion we may charge you a re-stocking fee.
5. RESERVATION OF TITLE TO GOODS SOLD TO YOU
5.1 Although risk in the Goods we supply passes to you upon delivery in accordance with Clause 4, the title to any Goods sold by us to you is only transferred to you once you have paid for those Goods in full.
5.2 Until ownership of the Goods passes to you, you agree as follows:
- you will hold the Goods on trust for us as our bailee;
- You will store the Goods safely at your cost so that the Goods can be readily identified as belonging to us and shall not relinquish possession of Goods;
- You will ensure that you have appropriate insurance coverage in place which covers the Goods against reasonably foreseeable risks (including without limitation theft, accidental loss or damage or 3rd party damage), and you will not do, or permit or suffer to be done anything which might or could prejudice any insurance held by you or us or permit any insurer to deny any claim (including without limitation, by removing the Goods from New Zealand for any period without prior approval to do so, as this may void relevant insurance cover if not pre-approved by relevant insurers). You will be responsible for any excess that applies if there is any claim in respect of the Goods supplied to you, but until title has passed to you, we will be entitled to receive all insurance proceeds payable for the relevant Goods. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries; and
- You will only use the Goods in the ordinary course of business. This authority is revoked immediately if a default occurs;
- You must keep full and complete records of the Goods and make such records available to us upon our reasonable request;
- You will disclose to us all information reasonably required regarding the Goods;
- You will immediately inform us of any attempt by any third party to exercise remedies against the Goods or of any circumstances that might jeopardise our rights or interest in the Goods;
- You give us the right to inspect the Goods or any part of them at all reasonable times;
- You must not do or allow to be done anything that might contribute to deterioration in the value of the Goods or otherwise adversely affect our rights or interest in the Goods; and
- You must return the Goods if requested to do so by us following non-payment of any amount owing by you to us or non-fulfilment of any of your other obligations to us, without limiting any other right we may have.
6. SECURITY IN THE GOODS SUPPLIED TO YOU
6.1 You acknowledge and agree that until you have paid us in full for all of the Goods delivered us:
- We possess, and may register on the PPSR, a first ranking Purchase Money Security Interest in the Goods and any Proceeds of any kind relating to the Goods;
- Following a request from us, you will promptly execute any documents and do anything else required by us to ensure that our Security Interest constitutes and remains a first ranking perfected Security Interest, including providing any information we may reasonably require to register a financing statement or a financing change statement;
- if you sell the Goods prior to payment to us, you will pay the Proceeds derived from that dealing to a separate account for the benefit and as trustee for us so that those Proceeds remain identifiable in connection with that dealing and the Goods;
- if at any time we have sufficient cause to exercise its rights under Section 10 of the PPSA, you irrevocably grant to us (and our agents and contractors) the right and licence to enter upon your premises, without notice and without liability whatsoever to you, or to any person or company claiming through you, to repossess the Goods we supplied. You covenant that you will assist and co-operate with us by completing any documentation and/or providing any information as may be required by us in order for us to achieve and Perfect our desired security position under the PPSA;
- you shall immediately notify us in writing of any change in your name (and in any event within 14 days of any such change), and you waive any right to receive a copy of a verification statement under the PPSA;
- Your rights as debtor in sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129 and 131, 133 and 134 of the PPSA shall not apply to these Terms and Conditions;
- the Security Interest shall continue until we give you a final release; and
- The Security Interest has the same priority in relation to all amounts owed by you to us, including future advances.
6.2 In this Clause 7, the terms "Proceeds", "Purchase Money Security Interest", "Perfect" and "Security Interest" have the meanings ascribed to them under the PPSA.
7. EXCLUSION OF STATUTORY WARRANTIES
7.1 You acknowledge and agree that you are in trade and are purchasing the Goods from us for purposes of your trade or business, and as such the provisions and implied warranties of the Consumer Guarantees Act 1993 do not apply to our supply of the Goods.
7.2 You also agree that to the maximum extent permitted by law, any conditions, warranties and guarantees which are otherwise implied under the Contract and Commercial Law Act 2017 do not apply to and are excluded from application to any Goods we supply to you.
8.1 It shall be a default by you under these Terms and Conditions and any Related Agreement, if:
- Any amount payable by you to us is overdue by more than 30 days;
- You commit any other material breach of this Agreement and such breach cannot be remedied, or in the event that such breach is capable of remedy, you fail to remedy the breach upon receiving notice from us specifying the breach and requiring the breach to be remedied within seven Business Days of such notice;
- We discover that you made any material false statement in relation to the making of this Agreement;
- You do or permit any act or thing, likely to prejudice or put in jeopardy our rights or interest in the Goods;
- Any execution or a warrant to seize is issued against, or a lien is claimed in respect of, the Goods or the Goods are otherwise at risk;
- Any Court judgment against you remains unsatisfied for more than seven (7) days;
- You are a company and there is a transfer of any of your shares which effectively alters the control, unless we consent to the transfer in writing;
- You become insolvent or in our opinion are unable to pay or do not pay your debts as they become due and payable;
- Any attempt is made by you to enter into a scheme of arrangement for payment of creditors.
- Any insurance policy in respect of the Goods is cancelled by your insurer;
- A receiver is appointed in respect of any of your assets; or
- An application is made for your liquidation, or you pass a resolution to go into liquidation.
- charge you default interest at a rate of 2.5% interest per month from the date any overdue payment falls due to the date of the payment.
- charge you for all costs of recovery or repossession and costs incurred by us in enforcement or attempted enforcement of these terms and conditions including without limitation our legal costs (on a solicitor/client basis);
- take action to enforce our security interests in any Goods supplied to you and any proceeds thereof, including through repossession. For this purpose you irrevocably appoint us as your agent and authorise us to enter on any land or premises owned by you or under your control upon which the Goods are then situated. You agree to indemnify us in respect of any claims, damages or expenses arising out of any action taken in respect of the recovery or repossession of the Goods;
- withdraw any credit being provided to you;
- suspend or terminate the supply of Goods and Services to you;
- cancel all or any part of any delivery of Goods and Services which remains unfulfilled; and
- make immediate demand for all amounts owing to us, regardless whether they are otherwise due for payment;
then we can immediately terminate this Agreement and repossess the Goods or hired Goods.
- Termination Consequences: Upon any termination of a hire or demonstration arrangement, or repossession of Goods by us:
- We may, if the Goods are attached to any other item or to any premises, disconnect and/or remove the Goods (using reasonable care) without being liable to you or to any third party for any resulting damage or loss;
- You will immediately pay all sums owing or to be paid under this Agreement (including without limitation any outstanding Rental Payment).
and you agree that we will not be liable to you for any loss or damage suffered by you as a result of us exercising our rights.
9. GOODS SUPPLIED ON A HIRE OR DEMONSTRATION BASIS
9.1 If the Goods are taken on hire from us or supplied on a demonstration basis, the following additional terms shall apply (in addition to the other terms set out in these Terms and Conditions and also the terms of any relevant Related Agreement):
- Retention of Title: The Goods at all times remain our property.
- Keep Goods Clean: You are required to keep any Goods hired clean of soil, concrete and any other material which may affect the appearance and efficient use of the Goods. It is recommended that the Goods be wiped clean regularly during use. Windows and lenses of laser equipment should be cleaned with a soft dry cloth or tissue to avoid damage. Any Goods returned in soiled condition will incur a cleaning charge.
- Transporting Goods: Goods must be transported in the carry case provided. Failure to do so will render you fully liable for all damage incurred and costs.
- Return Goods on time: Any hired Goods not returned on the day and time agreed will incur extended hire charges.
- Insurance: While any Goods are supplied to you on a hire or demonstration basis:
- You must ensure that you have appropriate insurance coverage in place which covers those Goods against reasonably foreseeable risks (including without limitation theft, accidental loss or damage or 3rd party damage), and must not do, or permit or suffer to be done anything which might or could prejudice any insurance held by you or us or permit any insurer to deny any claim, including without limitation, by removing the Goods from New Zealand for any period without prior approval to do so (as this may void relevant insurance cover if not pre-approved by relevant insurers). if you do, you will be responsible for the full cost of replacement or repair);
- You will be responsible for any excess that applies if there is any claim on your insurance in respect of the Goods supplied to you, but we will be entitled to receive all insurance proceeds payable for the relevant Goods supplied to you. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries; and You acknowledge that you will be responsible for any losses we suffer as a result of your failure to comply with your obligations in relation to insurance for any Goods or hired Goods.
- Your insurance must cover “rental equipment” for the value of the Goods that are being hired or are supplied to you for demonstration / evaluation.
- in the event of theft, accidental loss or damage that your insurance will be claimed first and that you are liable for the full replacement cost, whether or not you have insurance in place
- In the event that we make a claim on our insurance (at our sole discretion), you will be liable for a $2,500 fee to cover our insurance excess and associated costs
- No Prejudicial Dealings: You must not sell, offer for sale, assign, mortgage, pledge, sub-let, lend or otherwise deal with the Goods hired nor let them out of your possession.
- Affixation: You will not allow the Goods to become affixed to any plant, machinery, vehicles or other apparatus or thing (“apparatus”) without our prior consent and the owner of such apparatus being advised that the Goods are still owned by us and remain subject to repossession by us. You indemnify us for any and all loss, claims, costs, damage and damages, including consequential loss, arising from any breach of this covenant.
- Proper Use: You will only use the Goods and Services for the purpose they are designed or supplied for and in accordance with best industry practice. Any abnormal or reckless use of the Goods will render you fully liable for any damage to the Goods and loss incurred by us including consequential loss and costs.
- You will follow any instructions provided by us and/or the manufacturer of the relevant hired Goods, properly maintain any system operating requirements and carry out all upgrades and maintenance as required/instructed by us, and notify us as soon as possible of any material fault, defect, misuse or unauthorised use of any of the hired Goods.
- You must keep the Goods in good working order and repair, and protect the Goods from loss or damage, including in relation to ordinary wear and tear, and from any kind of loss while you have the Goods in your possession. You must use the care of a cautious and prudent owner to prevent damage to or deterioration of the Goods including but not limited to using, keeping and servicing and permitting the use, keeping and servicing of the Goods in a skillful manner.
- Make payments and/or provide replacement security: Regardless of any loss or damage to the Goods, you must continue to make in full all payments due in accordance with this Agreement, and if any of the Goods have been lost or damaged so as to no longer be valuable security for your obligations to us, you accept and agree that we may require a reasonable payment and/or replacement security from you (in our discretion), in order to ensure that we have an acceptable security position.
- Distinguishing Marks: Prior to delivery at the outset of these arrangements, we may place distinguishing marks on the Goods potentially including but not limited to stickers and paint. These distinguishing marks shall not be removed nor interfered with under any circumstances.
- No modification: You must not alter or modify the Goods and must not do anything which will or may have the effect of voiding any manufacturer’s warranty for the Goods. You indemnify us against any losses or costs which we may incur or suffer due to any act or damage done to the Goods by you.
- Notify Change of Address or Goods Location: You must notify us in writing at once of any change of your name, address, or the place where the Goods are kept.
- Warranties and Liability: You acknowledge that the Goods are provided to you in an acceptable condition, and that upon delivery, all risk in the Goods passes to you;
- Demonstration Goods not returned to us: If any Goods are not returned by you at the expiry of the agreed term of demonstration, those Goods shall be deemed to be taken on hire and all charges, terms and conditions relating to the Goods shall apply (at our then applicable rates and terms for such hire).
- Protection of Our Interests: you will allow us (or our representative) to inspect the Goods at all reasonable times.
- Right to Enter and Remove: If at any time we have sufficient cause to exercise our rights under s109 of the PPSA or to repossess any Goods, then you irrevocably grant us the right and licence to enter upon the premises where the Goods are located for the purpose of removing the Goods, without notice and without liability whatsoever to you, or to any person or entity claiming through you for the resulting damage or loss.
- Repay Costs we Incur: If we incur any expense in performing any of your obligations which you have not performed, you will repay those expenses to us upon demand.
- Power of Attorney: In the event of default by you, you irrevocably appoint us and every director of ours, jointly and severally as your attorney to do on your behalf anything you ought to do under this Agreement.
10.1 If you subscribe to our SmartFix service, the following additional terms shall apply to your use of the SmartFix service (in addition to the other terms set out in these Terms and Conditions and also the terms of the relevant SmartFix User Contract):
- Your username and password that are supplied to access SmartFix are strictly confidential. They are for your sole and exclusive use. You agree that the username, password and connection details must not be passed onto any third parties without our prior written consent. Furthermore you agree that if these provisions are breached you will be liable for paying full subscription costs for all third parties who have accessed the SmartFix service in an unauthorised manner.
- The subscription license set out in the SmartFix User Contract is a single user access license. If more than one user from one company wishes to connect simultaneously, a second licence is required (but may be available at a discounted rate subject to our pricing policy at the relevant time).
- We reserve the right to make changes to pricing of SmartFix at any time by giving you 7 days’ notice in advance. However, if you hold a current subscription, we will not increase pricing for the SmartFix service before the end date of your current subscription.
- We may make changes to coordinates and configurations as required to run the SmartFix service. Where, in our sole opinion, the changes are significant, you will be sent a notification by email or such changes will be posted on our website. Where they are deemed insignificant (in our sole opinion) no notification will take place.
- SmartFix uses a large network of GNSS receivers which are owned and managed by us and hosted at various locations around the country. Our systems are professionally installed and have robust IT systems and independent power supplies in case of power failure to minimise risks of downtime. However, in rare instances, outages could occur which may affect the service. We supplement our network with GNSS data from third parties to maximise the coverage, accuracy and performance of the network. We have no control or influence over the availability of third party signals and Services. Any outages in third party data streams could affect one or many of our Services.
- We understand the importance of the SmartFix service to your work and will use reasonable efforts to maximise the up-time of the network. However we give no guarantees or warranties regarding availability, reliability or accuracy of the SmartFix service. As a matter of best practice, we always recommend users to carry out sufficient data checks to satisfy themselves of the accuracy of the SmartFix service. This is your responsibility.
- For avoidance of doubt, we, our suppliers, and our related companies and subsidiaries will not be held responsible for any loss of data, loss of profit or contracts, inaccuracy or downtime caused by use of or unavailability of the SmartFix service. Similarly, we also make no guarantee or warranty that the SmartFix service is fit for your intended purpose.
- A critical part of the service is the connection from your device to the internet to connect to SmartFix. In most cases, this is done through the mobile phone network by purchasing a SIM card and data plan contract from your telecommunications provider. Your choice of telecommunications provider may be influenced by coverage, cost and flexibility of data plans. We can assist you through this process but any data costs associated with accessing our service and setting up data plans with your telecommunications provider are your sole responsibility.
- We reserve the right to suspend or disconnect your SmartFix subscription if payment of your account is not kept up to date.
11. TRAINING SERVICES:
11.1 If you ask us to provide any training to your personnel for use of the Goods or Services, the extent and price for the training will be as agreed in writing, but if details of training have not agreed in that way, training will be at our then-current hourly rates for that training and will include all reasonable travel and other expenses, and will be payable by you in addition to any other costs payable by you.
12. WARRANTIES AND LIABILITY:
12.1 You acknowledge that:
- The quality and performance of the Goods and Services depends on a number of factors, not all of which are under our control (including without limitation your other associated equipment/systems, and other telecommunications networks provided by other parties). Telecommunications services may also be adversely affected by radio interference, atmospheric conditions, geographic factors, network congestion, maintenance/outages on other networks or provider’s equipment/systems/lines/sites. Because of these factors, the nature of the Goods and Services we provide, and their reliance on other party’s services, systems and equipment, we cannot and do not warrant or guarantee that the Goods and Services will work at all times or be fault free;
- We may also from time to time need to restrict or suspend a service for technical/operational reasons, and although we will use all reasonable endeavours to give you as much notice as reasonably possible in the circumstances and to ensure that restrictions or suspensions occur outside normal business hours, those matters may be outside our reasonably control at times. We will however use all reasonable endeavours to keep you informed of any circumstances likely to affect the availability of the Goods and Services, and to minimise disruption to you where possible.
- The Goods and Services are subject to any warranty terms expressly stated by us as applicable to any particular item of Goods or Services and we will use all reasonable endeavours to help you obtain the benefit of any manufacturer warranties that apply to any Goods supplied.
- All representations, descriptions, warranties or terms (including any condition or warranty expressed or implied by law, statute, trade, custom or otherwise) not expressly included in these terms and conditions are hereby excluded (to the maximum extent permitted by law, and these terms and conditions are modified to the extent necessary to give effect to that intention).
12.2 Limitations and exclusions of liability: You agree that notwithstanding anything to the contrary in these Terms and Conditions, and to the extent legally permissible:
- Duty of care: The Goods and Services are delivered to you only and we have no duty of care or obligations to any other party;
- Exclusion and limitation of liability factored into costings: It is commercially necessary and reasonable for us to limit our maximum potential liability and exclude certain types of liability, and that our Goods and Services are supplied in reliance on the ability to do so;
- Excluded liability: We will not be liable to you for any claims, losses or damages:
- Which are indirect or consequential in nature (including without limitation loss of profits) arising in relation to our Goods or Services (including by reason of any delay in the delivery of the Goods and Services);
- To the extent that you have caused or contributed to those claims, losses or damages;
- Which arise as a result of us relying on any publicly available information provided by any statutory or regulatory bodies or agencies, including without limitation, Land Information New Zealand;
- Which arise from any suspension or termination of this agreement by us;
- Which is caused by any factor beyond our control, including but not limited to:
- a Force Majeure (as defined in these Terms and Conditions);
- any loss of supply of internet connection, electricity, water or any other service or amenity not provided by us that the Goods or Services may rely on to work properly; and
- any changes (not approved by us in advance) which you or a third party make to your systems or the environment to which our Goods or Services are provided;
- Which is caused by damage from your misuse, accident, neglect or improper testing, operation, storage or maintenance of the Goods and Services;
- To any of your chattels left within our possession or control for purposes of delivery of the Goods or Services (whether such loss or damage results from our negligence or default or otherwise howsoever caused);
- To the Goods while in transit arranged by you (whether such loss or damage results from our negligence or default or otherwise howsoever caused);
- Which is caused by a deterioration of the Goods as a result of improper exposure to the elements, after delivery;
- Which is caused by any act or omission by you (or your subcontractor or any third party), including but not limited to maintenance, installation, modification or adjustments to the Goods or Services; or
- Which is related to the Goods or Services that have been tampered with or modified by you. Which is caused by any factor beyond our control, including but not limited to:
- Limitations on Liability: Subject to any exclusions above and subject to our further limitations and exclusions of liability as set out in any Related Agreement or these Terms and Conditions, if you have the benefit of any warranty or condition, or if we are liable to you for any reason, then to the fullest extent permitted by law, our maximum liability is limited to (at our election):
- In the case of Goods:
- the replacement of the Goods or the delivery of equivalent Goods;
- the repair of the Goods;
- the payment of reasonable costs of you replacing the Goods or of you acquiring equivalent Goods from a third party; or
- the payment of reasonable costs of you having the Goods repaired by a third party; and
- the amount required to refund you for the relevant Goods (ie. the amount you paid us for the Goods in question).
- ( In the case of Services):
- the re-delivery of the Services; or
- the payment of reasonable costs of you having the Services re-delivered by a third party; or
- the amount required to refund you for the relevant Services (ie. the amount you paid to us for the Services in question).
- In the case of Goods:
13.1 You authorise us to:
- Collect, enquire, retain and use information about you for the purpose of:
- Assessing and monitoring your creditworthiness;
- Marketing Goods and Services to you from time to time; and
- Establishing and maintaining the relationship between you and us; and
- Disclose information about you to any credit provider, credit reporting agency or other third party as reasonably required for the purposes of providing or obtaining a credit reference, debt collection Services, or notifying a default by you.
13.2 We will comply with our obligations under the Privacy Act 1993 at all times, and you will have the right to request a copy of the information about you held by us and to request the correction of any incorrect information we hold. All information provided to us by you and other information received about you will be held by us at our Head Office at 7F Orbit Drive, Rosedale, Auckland or Unit 6, 2 Distribution Lane, Sockburn, Christchurch.
14. CONSEQUENCES OF TERMINATION:
14.1 Termination of this agreement will not prejudice or affect the rights, remedies and claims and/or any obligations or liabilities of the parties that accrued prior to termination.
14.2 Survival: Any other provisions of our terms and conditions and any Related Agreements which are capable of surviving termination and which may reasonably be considered to have been intended to do so (including without limitation any liability limitation or indemnity provisions, and provisions relating to confidentiality or intellectual property), will survive termination.
15. HEALTH AND SAFETY:
15.1 We do not assume any obligation of yours under any applicable health and safety legislation or regulations (including without limitation the Health & Safety in Employment Act 1992), and for the purposes of any such legislation and regulations, you will at all times remain the party who controls the place of work.
16. GUARANTEE:16.1 In consideration of us entering into these terms and conditions with you, the guarantor(s) (if any under any Related Agreement(s)) unconditionally and irrevocably:
- Guarantee(s) to us the due, punctual and proper performance and observance by you of all your obligations and warranties under or in relation to these terms and conditions;
- Indemnify(ies) us from and against any liability incurred by us in respect of any action, suit, claim, demand, cost or expense (including legal fees) arising from, as a direct or indirect result of, or in any way connected to any breach of your obligations to us.
16.2 For the avoidance of doubt, the guarantee(s) and indemnity(ies) extend to the due, punctual and proper performance and observance of all of your obligations under these terms and conditions and any Related Agreements, regardless of whether the guarantor(s) has/have signed these terms and conditions or the Related Agreements, or has/have agreed to the transaction evidenced thereby.
16.3 The liability of the guarantor(s) under this guarantee will constitute a principal obligation of the guarantor(s) and such liability will not be relieved or in any way affected in a manner prejudicial to us by any granting of time, waiver or forbearance to sue by us or by any other act, omission, matter, circumstance or law whereby the guarantor(s) as surety(ies) only would, but for the provisions of this Clause 16, has/have been released from liability.
16.4 The guarantee(s) and indemnity(ies) will be in full force and effect until all the obligations now or at any time hereafter liable to be satisfied by you under these terms and conditions and the relevant fee proposal have been fully satisfied, including obligations the satisfaction of which is subsequently avoided or affected in any way, whether under any statutory provision or otherwise, so as to deprive us of the full benefit of such satisfaction.
17.1 Currency: All amounts are payable in New Zealand dollars.
17.2 Amendment: These terms and conditions and all fee proposals may only be amended with our prior written consent.
17.3 Review of terms: We reserve the right to review these terms and conditions at any time and from time to time. If, following any such review, there is any change to these terms and conditions, that change will take effect from the date on which we give notice to you of such change.
17.4 Subcontracting and assignment: We may assign, license or subcontract all or any part of our rights and obligations under these terms and conditions and any Related Agreements. You shall not assign or subcontract your rights without our prior written consent.
17.5 No waiver: Any delay or failure by us in exercising any rights available to us will not constitute a waiver of such rights on that or any subsequent occasion. We shall not be taken to have waived any rights unless such waiver is in writing. Any such waiver will be restricted to the particular matter in respect of which it is specifically expressed to be given. All of our rights, powers, exemptions and remedies will remain in full force and effect notwithstanding any neglect, forbearance or delay in their enforcement.
17.6 Relationship between parties: You agree that we are an independent contractor and nothing in any arrangements between you and us shall constitute either you or us as the employer, partner or joint venturer of the other party.
17.7 Force majeure: We will not be liable for any default or delay due to any force majeure or cause beyond our reasonable control, and any timeframes applying to our obligations will be extended as reasonably necessary. "Force majeure" means any act of God, fire, earthquake, storm, flood, or landslide, strike, lockout, work stoppage or other labour hindrance, explosion or public mains electrical supply failure, sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not), requirement or restriction of, or failure to act by, any government semi-governmental or judicial entity, any unavoidable accident or any other similar cause beyond the reasonable control of the party claiming the benefit of this Clause 17.7 and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, but does not include any event which the party affected could have prevented or overcome by exercising a standard of reasonable care, or a lack of funds for any reason.
17.8 Entire agreement: In relation to any Goods or Services we provide, these terms and conditions together with any Related Agreement regarding our supply of those Goods or Services set out the entire agreement and understanding between you and us in relation to those Goods and Services to be delivered by us, and supersede any and all prior discussions, agreements, representations and warranties. Each of you and us acknowledge that, in entering into this agreement, you/we do not rely on any statement, representation, assurance or warranty ("Representation") of any person (whether a party to this agreement or not) other than as expressly set out in the fee proposal or these terms and conditions.
17.9 Severability: If any provision in these terms and conditions is held invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
17.10 Disputes: Neither party shall disparage the reputation of the other party and the parties agree to use all reasonable endeavours to discuss and resolve in good faith any disputes or differences which may arise between them, and that if such disputes or differences cannot be resolved by the parties themselves within a reasonable period, the parties will then seek to resolve any differences through mediation. Any party who claims that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of such notice, the parties must:
- Co-operate and use reasonable endeavours to resolve the dispute quickly;
- If the dispute is not resolved within 14 days of receiving the notice (or any further period as the parties may agree in writing), refer the dispute to mediation ("mediation"), and any such mediation shall be conducted in accordance with the LEADER New Zealand Incorporated Standard Mediation Agreement. The mediation shall be conducted by a mediator and at a fee agreed by the parties, failing agreement between the parties, the mediator shall be selected, and the mediator’s fee shall be decided, by the Chair for the time being of LEADER New Zealand Incorporated. Nothing in these terms and conditions shall prevent any party from seeking urgent injunctive relief through the courts.
17.11 Notices: Any notice required to be given under this agreement shall be in writing and shall be delivered personally, or sent by email, pre-paid post or by commercial courier, to each party required to receive the notice, at the address for the parties set out in the fee proposal or as otherwise specified by the parties. Any notice shall be deemed to have been duly received:
- If delivered personally, when left at the address and for the contact person referred to in the fee proposal;
- If sent by pre-paid post, at 9.00 am on the second business day after posting;
- If delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; and
- If delivered by email, when transmitted to the email addresses set out in the fee proposal (except where the notice relates to the service of any proceedings or other documents in any legal action, in which case email service will only be valid if deliberately acknowledged by the recipient).
17.12 Governing law and jurisdiction: These terms and conditions (and the fee proposal) are governed by New Zealand law and the New Zealand courts shall have jurisdiction.