TERMS OF TRADE.

Grace Beauty Limited – Terms & Conditions of Trade 

 #34041 © Copyright – EC Credit Control 1999 – 2020 

 

1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract. 

1.2 “Seller” means Grace Beauty Limited, its successors and assigns or any person acting on behalf of and with the authority of Grace Beauty Limited. 

1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Seller to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Customer, is a reference to each Customer jointly and severally; and 

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

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

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

1.4 “Products” means all Products (including but not limited to, any parts, equipment, fittings etc) or Services supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other). 

1.5 “Course” shall mean the course provided by the Seller to the Customer, as described on the invoices, applications, enrolment forms or any other forms as provided by the Seller to the Customer, and shall include any training, advice or recommendations. 

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 Customer does not wish to allow Cookies to operate in the background when using the Seller’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website. 

1.8 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between the Seller and the Customer in accordance with clause 7 below. 

 

2. Acceptance

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

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail. 

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 

2.4 The Customer acknowledges and accepts that: (a) the supply of Products on credit shall not take effect until the Customer has completed a credit application with the Seller and it has been approved with a credit limit established for the account; 

(b) in the event that the supply of Products requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Seller reserves the right to refuse Delivery; 

(c) the Customer is responsible for maintaining the confidentiality of their password and account and any activities that occur under the account. The Seller shall not be liable to any person for any issues which may arise as a result of any failure by the Customer to protect their password or account; 

(d) false emails: the Seller will never ask the Customer to confirm any account or credit card details via email. If an email is received claiming to be from the Seller asking for such information, the Customer should not reply in the first instance but forward this email request to the Seller so that the business may advise the relevant authorities; 

(e) the supply of Products for accepted orders may be subject to availability and if, for any reason, Products are not or cease to be available, the Seller reserves the right to vary the Price with alternative Products as per clause 7.2; 

(f) the Seller reserves the right to accept in whole or part any order or to decline any order. Any order or part order not accepted is deemed to be cancelled; 

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

(h) any alleged claims of resultant from the use of any supplied Products must be reported to the Seller’s management in writing as soon as reasonable practicable. The Seller reserves the right to inspect any items attributed to the claim and have the items tested by an independent laboratory before any public claims, statements or dissemination of information in any format including social media. 

2.5 Where the Seller gives advice, recommendations, information, assistance or service to the Customer, or the Customer’s agent, regarding the Products, it is given in good faith and the Seller shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same. 

2.6 All Products supplied by the Seller shall be in accordance with the specifications or descriptions (if any) expressly listed or set out on the website or order. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the order. 

2.7 These terms and conditions are to be read in conjunction with the Seller’s Website Terms of Use. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail. 

2.8 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. Distribution of Products via Approved Distributors

3.1 The Customer agrees that until they are authorised as a distributor by the Seller, (and hereinafter the Customer shall be referred to as “Distributor” for the purposes of this clause) the Distributor shall not be able to sell the Products on as a Distributor for the Seller or represent to any third parties that the Distributor is in any way acting for the Seller. The Seller shall not accept responsibility or agree to be bound in any way by any contracts with third parties to whom the Distributor is a party. 

3.2 At the Seller’s sole discretion the Distributor acknowledges that only approved Distributors shall have the authority to accept internet orders via their respective website and/or any alternative online auction sites. 

3.3 Orders from a Distributor are accepted on the basis that; (a) unless otherwise agreed by prior approval between the Seller and the Distributor, Products may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale, 

(b) Products are to be sold for retail or displayed for sale at only the nominated locations advised by the Distributor to the Seller, 

(c) sale of Products by mail order, internet or any other method outside of the traditional display and sell at the approved location is prohibited without prior written consent of the Seller, and 

(d) Products are to be displayed, presented and marketed in the manner that is in the best interest of the brand name. 

3.4 Any default of clauses 3.1-3.3 may at the Seller’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand. 

3.5 The Seller has sole discretion on which brands or Products are made available to any approved Distributor and the Seller does not guarantee continuing supply of any specific brand or Products. 

 

4. Errors and Omissions

4.1 The Customer acknowledges and accepts that the Seller shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by the Seller in the formation and/or administration of this Contract; and/or 

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Seller in respect of the Services. 

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

 

5. Change in Control

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

 

 

6. On-Line Ordering

6.1 The Customer acknowledges and agrees that: (a) the Seller does not guarantee the website’s performance; 

(b) display on the website does not guarantee the availability of any particular Products; therefore, all orders placed through the website shall be subject to confirmation of acceptance by the Seller; 

(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; 

(d) subject to screen resolution and colour settings Products supplied may exhibit slight variations of colour, shade and brightness. Colours are chosen at the Customer’s discretion and the Seller shall not be liable in any way whatsoever, where such variations occur from the online display and the actual colour, this does not constitute a returnable Product fault; 

(e) there are inherent hazards in electronic distribution, and as such the Seller cannot warrant against delays or errors in transmitting data between the Customer and the Seller including orders, and you agree that to the maximum extent permitted by law, the Seller will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders; 

(f) when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences; and 

(g) if the Customer is not the cardholder for any credit card being used to pay for the Products, the Seller shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction. 

6.2 The Seller reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of the Seller’s business, or violated these terms and conditions. 

 

7. Price and Payment

7.1 At the Seller’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by the Seller to the Customer; or 

(b) the Price as at the date of Delivery of the Products according to the Seller’s current price list; or 

(c) the Seller’s quoted price (subject to clause 7.2 which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. 

7.2 The Seller reserves the right to change the Price: (a) if a variation to the Products which are to supplied is requested; or 

(b) if during the course of the Services, the Products cease to be available from the Seller’s third party suppliers, then the Seller reserves the right to provide alternative Products, subject to prior confirmation and agreement of both parties; or 

(c) in the event of increases to the Seller in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond the Seller’s control; or 

(d) out-of-pocket expenses are payable by the Customer for on-campus days (i.e. flights and accommodation costs, etc.), see clause 9.1(a). 

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

7.4 At the Seller’s sole discretion a deposit may be required. 

7.5 Time for payment for the Products being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be: (a) on Delivery of the Products; 

(b) by way of instalments/progress payments in accordance with the Seller’s payment schedule; 

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

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

(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Seller. 

7.6 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Seller. 

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

7.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute. 

7.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other contract for the sale of the Products. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. 

 

8. Delivery of Products

8.2 At the Seller’s sole discretion the cost of Delivery is in addition to the Price. 

8.3 The Seller may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. 

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

8.1 Delivery (“Delivery”) of the Products is taken to occur at the time that: 

(a) the Customer or the Customer’s nominated carrier takes possession of the Products at the Seller’s address; or 

(b) the Seller (or the Seller’s nominated carrier) delivers the Products to the Customer’s nominated address even if the Customer is not present at the address. 

9. Provision of the Course

9.1 The provision and assessment of face-to-face workshops form part of the Course and: (a) the Customer is required to participate in these practical classes in order to complete the Course. All information relevant to the workshops will be provided prior to the commencement of the Course and unless expressly included in the Price, out-of-pocket expenses are payable by the Customer (as per clause 7.2(d)); and 

(b) incorporate the relevant WorkSafe guidelines and requirements, as they apply to work practices. Any action by the Customer that jeopardises the health, safety or welfare of others may result in the termination of the Customer’s enrolment in the Course (and any access relating thereto). 

9.2 Subject to the other terms and conditions herein, and the full payment of the Price, the Seller grants the Customer a limited, non-transferrable, non-sublicenseable, and revocable right to use the Course. In the event of any failure in payment of the charges, enrolment to the Course will be deemed invalid and the Seller reserve the right to terminate the Customer’s access to the Course as per clause 12.2. 

9.3 Irrespective of whether the Customer utilises the Course, or not, the Seller shall not issue a refund of the charges (in whole or in part), unless the Customer is granted such right under any applicable New Zealand legislation. 

9.4 Customer support shall be available via email and telephone during standard business hours and such other hours as the Seller may advertise on their website. 

 

10. Course Progress Policy & Procedure

10.1 The Seller shall monitor and record the Course progress of the Customer and assess this progress through each compulsory stage via assessments and exams. 

10.2 At the conclusion of each stage, the Seller organises the reassessment, where the Customer does not meet the competency requirement of that particular stage. However, a one hundred dollar ($100.00) reassessment fee may apply. 

 

11. Holidays and Special Leave 11.1 Public Holidays are timetabled into the Course, and the Customer can apply for special leave on the basis of illness or bereavement. In the event of this, the Customer’s progress in the Course will be put on hold (for up to a maximum of three (3) months).  

 

12. Suspension or Postponing Commencement of the Course

12.1 The Customer is allowed to defer commencement or suspend studies of the Course on medical grounds (with a doctor’s certificate) or other exceptional compassionate circumstances (i.e. bereavement) as per clause 11.1. If the Student subsequently withdraws from the Course altogether, the refund policy applies from the date of receipt of advice. 

12.2 Without prejudice to any other remedies the Seller may have: (a) if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, the Seller shall be entitled to immediately suspend or terminate the Customer’s enrolment in the Course (and any access relating thereto). The Seller will not be liable to the Customer for any loss or damage they may suffer because the Seller have exercised their rights under this clause; 

(b) and notwithstanding anything else in this Contract, the Seller unreservedly maintain the right, exclusive of procedural fairness, to suspend or terminate the Customer’s enrolment in the Course (and any access relating thereto) if, in the Seller subjective opinion, the decision to do so is in the best interests of the Seller or other students. 

 

13. Risk

13.1 Risk of damage to or loss of the Products passes to the Customer on Delivery and the Customer must insure the Products on or before Delivery. 

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

13.3 If the Customer requests the Seller to leave Products outside the Seller’s premises for collection or to deliver the Products to an unattended location then such Products shall be left at the Customer’s sole risk. 

 

 

14. Title

14.1 The Seller and the Customer agree that ownership of the Products shall not pass until: (a) the Customer has paid the Seller all amounts owing to the Seller; and 

(b) the Customer has met all of its other obligations to the Seller. 

14.2 Receipt by the Seller 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. 

14.3 It is further agreed that until ownership of the Products passes to the Customer in accordance with clause 14.1: (a) the Customer is only a bailee of the Products and must return the Products to the Seller on request; 

(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Products being lost, damaged or destroyed; 

(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand; 

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

(e) the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Products are kept and recover possession of the Products; 

(f) the Seller may recover possession of any Products in transit whether or not Delivery has occurred; 

(g) the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of the Seller; and 

(h) the Seller may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Customer. 

 

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

15.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that: (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and 

(b) a security interest is taken in all Products and/or collateral (account) – being a monetary obligation of the Customer to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Customer. 

15.2 The Customer undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; 

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Products charged thereby; 

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products and/or collateral (account) in favour of a third party without the prior written consent of the Seller; and 

(d) immediately advise the Seller of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales. 

15.3 The Seller and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. 

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

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

15.6 The Customer shall unconditionally ratify any actions taken by the Seller under clauses 15.1 to 15.5. 

 

15.7 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

 

16. Security and Charge

16.1 In consideration of the Seller agreeing to supply the Products, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 

16.2 The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause. 

16.3 The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf. 

 

17. Defects

17.1 The Customer shall inspect the Products on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Products within a reasonable time following Delivery if the Customer believes the Products are defective in any way. If the Customer shall fail to comply with these provisions the Products shall be presumed to be free from any defect or damage. For defective Products, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Products or repairing the Products. 

17.2 Products will not be accepted for return other than in accordance with 17.1 above, and provided that: (a) the Seller has agreed in writing to accept the return of the Products; and 

(b) the Products are returned at the Customer’s cost within seven (7) days of the Delivery date; and 

(c) the Seller will not be liable for Products which have not been stored or used in a proper manner; and 

(d) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances. 

17.3 The Seller may (in its discretion) accept the return of Products for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Products plus any freight. 

17.4 Subject to clause 17.1, non-stocklist items or Products made to the Customer’s specifications are not acceptable for credit or return. 

 

18. Warranty

18.1 For Products not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Products. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Products. 

 

19. Consumer Guarantees Act 1993

19.1 If the Customer is acquiring Products for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Products by the Seller to the Customer. 

 

20. Intellectual Property

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

20.2 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products which the Seller has created for the Customer. 

 

21. Default and Consequences of Default

21.1 At the discretion of the Seller, interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 

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

21.3 Further to any other rights or remedies the Seller may have under this Contract, if a Customer has made payment to the Seller, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract. 

21.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due; 

(b) the Customer has exceeded any applicable credit limit provided by the Seller; 

(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or 

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer. 

 

22. Cancellation

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

22.2 The Seller may cancel any contract to which these terms and conditions apply or cancel Delivery of Products at any time before the Products are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Products. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation. 

22.3 In the event that the Customer cancels delivery of Products and/or a scheduled Course, the Customer shall be: (a) liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits); and 

(b) the Seller shall refund fifty percent (50%) of the charges for a cancellation or withdrawal by the Customer from an enrolled Course, provided the Course has not commenced. No refund on charges shall be made where the Customer cancels the Course once commenced. All applications for a refund of the charges (or any part of the charges) must be made in writing to the Seller’s Accounts Manager. 

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

 

23. Privacy Policy

23.1 All emails, documents, images or other recorded information held or used by the Seller is Personal Information as defined and referred to in clause 23.3 and therefore considered confidential. The Seller acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“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”). The Seller acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Seller that may result in serious harm to the Customer, the Seller will notify the Customer 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 Customer by written consent, unless subject to an operation of law. 

23.2 Notwithstanding clause 23.1, privacy limitations will extend to the Seller in respect of Cookies where the Customer utilises the Seller’s website to make enquiries. The Seller agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s: (a) IP address, browser, email client type and other similar details; 

(b) tracking website usage and traffic; and 

(c) reports are available to the Seller when the Seller sends an email to the Customer, so the Seller may collect and review that information (“collectively Personal Information”) 

    23.3 The Customer authorises the Seller or the Seller’s agent to: (a) access, collect, retain and use any information about the Customer; (i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or 

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

    (b) disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer. 

    23.4 Where the Customer is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 1993. 

    23.5 The Customer shall have the right to request (by e-mail) from the Seller, a copy of the Personal Information about the Customer retained by the Seller and the right to request that the Seller correct any incorrect Personal Information. 

    23.6 The Seller will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law. 

    23.7 The Customer can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at http://www.privacy.org.nz/comply/comptop.html. 

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

    24. Service of Notices

    24.1 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. 

    24.2 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. 

     

    25. Trusts

    25.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Seller may have notice of the Trust, the Customer covenants with the Seller as follows: (a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund; 

    (b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; 

    (c) the Customer will not without consent in writing of the Seller (the Seller will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events: (i) the removal, replacement or retirement of the Customer as trustee of the Trust; 

    (ii) any alteration to or variation of the terms of the Trust; 

    (iii) any advancement or distribution of capital of the Trust; or 

    (iv) any resettlement of the trust property. 

     

    26. Compliance Laws

    26.1 The Seller warrants that Products are manufactured and supplied from their third party supplier, for supply to all Customers shall meet all safety regulations and standards as defined with such Products and is eminently suitable for public use and thereby compliant with New Zealand Standards. 

    26.2 The Seller recommends that a patch test be done preferably twenty-four (24) hours prior to the Customer using the Products to ensure that no allergic reaction occurs, Where the Customer decides not to have such a patch test done, the Seller shall not be held responsible for any reaction the Customer may suffer as a result from the use of the Products. 

    26.3 In conjunction with clause 26.2, the Customer agrees that the Seller shall not be liable for any damage or loss including personal injury, death, sickness, inconvenience, or expense (including loss of income) as a result of the Seller providing the Products. 

     

    27. General

    27.1 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. 

    27.2 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 Auckland Courts of New Zealand. 

    27.3 Except to the extent permitted by law “CGA”, the Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Products). 

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

    27.5 The Customer cannot licence or assign without the written approval of the Seller. 

    27.6 The Seller may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of the Seller’s sub-contractors without the authority of the Seller. 

    27.7 The Customer agrees that the Seller may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Seller to provide Products to the Customer. 

    27.8 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. 

    27.9 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. 

     

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