1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “TCA” means Townshend Cullen Associates (Whangamata) Limited T/A Townshend Cullen Associates, its successors and assigns or any person acting on behalf of and with the authority of Townshend Cullen Associates (Whangamata) Limited T/A Townshend Cullen Associates.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting TCA 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 partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by TCA in the course of it conducting, or supplying to the Client, any Services.
1.5 “Services” means all Services supplied by TCA to the Client at the Client’s request from time to time.
1.6 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: 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) and pricing details.
1.7 “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 Client does not wish to allow Cookies to operate in the background when using TCA’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.8 “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between TCA and the Client in accordance with clause 5 of this Contract.
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 Services provided by TCA.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with TCA and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, TCA reserves the right to refuse delivery.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that TCA 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 TCA 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 TCA in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of TCA; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give TCA 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 TCA as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At TCA’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by TCA to the Client; or
(b) the Price as at the date of delivery of the Services according to TCA’s current price list; or
(c) TCA’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 TCA reserves the right to change the Price if a variation to TCA’s quotation is requested. Variations will be charged for on the basis of TCA’s quotation, and will be detailed in writing, and shown as variations on TCA’s invoice. The Client shall be required to respond to any variation submitted by TCA within ten (10) working days. Failure to do so will entitle TCA to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At TCA’s sole discretion a deposit may be required.
5.4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by TCA, which may be:
(a) on delivery of the Services;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by TCA.
5.5 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Client and TCA.
5.6 TCA may in its discretion allocate any payment received from the Client towards any invoice that TCA determines and may do so at the time of receipt or at any time afterwards. On any default by the Client TCA may re-allocate any payments previously received and allocated.
5.7 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 TCA nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to TCA an amount equal to any GST TCA must pay for any supply by TCA under this or any other agreement for providing TCA’s Services. 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.
6. Provision of the Services
6.1 At TCA’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
6.2 Subject to clause 6.3 it is TCA’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.3 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that TCA claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond TCA’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
(c) notify TCA that the site is ready.
6.4 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
6.5 TCA may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.6 Any time specified by TCA for delivery of the Services is an estimate only and TCA 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 Services to be supplied at the time and place as was arranged between both parties. In the event that TCA is unable to supply the Services as agreed solely due to any action or inaction of the Client then TCA shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
7.1 Irrespective of whether TCA retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as TCA may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
7.2 TCA reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 7.1.
8.1 TCA and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid TCA all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to TCA in respect of all contracts between TCA and the Client.
8.2 Receipt by TCA 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 and until then TCA’s ownership or rights in respect of the Incidental Items shall continue.
8.3 It is further agreed that until such time as ownership of the Services shall pass from TCA to the Client TCA may give notice in writing to the Client to return the Services or any of them to TCA. Upon such notice being given the rights of the Client to obtain ownership or any other interest in the Services shall cease.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 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 Incidental Items and/or collateral (account) – being a monetary obligation of the Client to TCA for Services – that have previously been supplied and that will be supplied in the future by TCA to the Client.
9.2 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 TCA may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, TCA for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of TCA.
9.3 TCA and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
9.5 Unless otherwise agreed to in writing by TCA, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by TCA under clauses 9.1 to 9.5.
9.7 Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of TCA agreeing to supply Services, 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).
10.2 The Client indemnifies TCA from and against all TCA’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising TCA’s rights under this clause.
10.3 The Client irrevocably appoints TCA and each director of TCA as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11.1 The Client shall inspect the Services on delivery and shall within two (2) days of delivery notify TCA of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford TCA an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
11.2 For defective Services, which TCA has agreed in writing that the Client is entitled to reject, TCA’s liability is limited to either (at TCA’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 11.1.
12. Consumer Guarantees Act 1993
12.1 If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Services by TCA to the Client.
13. Intellectual Property
13.1 Where TCA has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of TCA. Under no circumstances may such designs, drawings and documents be used without the express written approval of TCA.
13.2 The Client warrants that all designs, specifications or instructions given to TCA will not cause TCA to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TCA against any action taken by a third party against TCA in respect of any such infringement.
13.3 The Client agrees that TCA may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which TCA has created for the Client.
14. Default and Consequences of Default
14.1 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 TCA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes TCA any money the Client shall indemnify TCA from and against all costs and disbursements incurred by TCA in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TCA’s collection agency costs, and bank dishonour fees).
14.3 Further to any other rights or remedies TCA may have under this Contract, if a Client has made payment to TCA, 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 TCA under this clause 14, 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.
14.4 Without prejudice to TCA’s other remedies at law TCA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TCA shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TCA becomes overdue, or in TCA’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 TCA;
(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.
15.1 Without prejudice to any other remedies TCA may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TCA may suspend or terminate the supply of Services to the Client. TCA will not be liable to the Client for any loss or damage the Client suffers because TCA has exercised its rights under this clause.
15.2 TCA may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice TCA shall repay to the Client any money paid by the Client for the Services. TCA shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.3 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by TCA as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.1 All emails, documents, images or other recorded information held or used by TCA is Personal Information as defined and referred to in clause 16.3 and therefore considered confidential. TCA 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 and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). TCA acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by TCA that may result in serious harm to the Client, TCA will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
16.2 Notwithstanding clause 16.1, privacy limitations will extend to TCA in respect of Cookies where the Client utilises TCA’s website to make enquiries. TCA 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 Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to TCA when TCA sends an email to the Client, so TCA may collect and review that information (“collectively Personal Information”)
16.3 The Client authorises TCA or TCA’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the 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 TCA from the Client directly or obtained by TCA 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.
16.4 Where the Client is an individual the authorities under clause 16.3 are authorities or consents for the purposes of the Privacy Act 2020.
16.5 The Client shall have the right to request (by e-mail) from TCA, a copy of the Personal Information about the Client retained by TCA and the right to request that TCA correct any incorrect Personal Information.
16.6 TCA will destroy Personal Information upon the Client’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.
16.7 The Client can make a privacy complaint by contacting TCA via e-mail. TCA 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 Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.
17. Service of Notices
17.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
17.2 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.
18.1 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 TCA may have notice of the Trust, the Client covenants with TCA 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 TCA (TCA 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.
19.1 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.
19.2 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 New Zealand.
19.3 Except to the extent permitted by law “CGA”, TCA 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 TCA of these terms and conditions (alternatively TCA’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
19.4 TCA may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
19.5 The Client cannot licence or assign without the written approval of TCA.
19.6 TCA 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 TCA’s sub-contractors without the authority of TCA.
19.7 The Client agrees that TCA may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to 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 TCA to provide Services to the Client.
19.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, 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.
19.9 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.