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 “TDI” means Tenille Dyer T/A Tenille Dyer Interiors, its successors and assigns or any person acting on behalf of and with the authority of Tenille Dyer T/A Tenille Dyer Interiors.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting TDI 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 “Goods” means all Goods or Services supplied by TDI to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “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.
1.6 “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 ordering from the 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 ordering Goods via the website.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between TDI and the Client in accordance with clause 5 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Delivery of the Goods.
2.2 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 Where TDI gives any advice, recommendation, information, assistance or service provided by TDI in relation to Goods or Services supplied is given in good faith to the Client, or the Client’s agent and is based on TDI’s own knowledge and experience and shall be accepted without liability on the part of TDI. Where such advice or recommendations are not acted upon then TDI shall require the Client or their agent to authorise commencement of the Services in writing. TDI shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
2.5 The Client acknowledges and accepts that:
(a) where a Client wishes to operate a credit account with TDI, a credit application must be completed and approved with a credit limit established first, prior to the initial delivery and/or supply of Goods;
(b) in the event that the supply of Goods request exceeds the Client’s credit limit and/or the account exceeds the payment terms, TDI reserves the right to refuse delivery and/or request an alternative payment method;
(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, TDI reserves the right to vary the Price with alternative Goods as per clause 5.2, subject to prior confirmation and agreement of both parties. TDI also reserves the right to halt all Services until such time as TDI and the Client agree to such changes. TDI shall not be liable to the Client for any loss or damage the Client suffers due to TDI exercising its rights under this clause; and
(d) TDI will provide an extensive initial consultation and will accept no responsibility for any changes to the plans or specifcations (including but not limited to, colour selection, fabric choice and hardware and fittings, etc.) once the quotation has been accepted.
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 TDI 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 TDI 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 TDI 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 TDI; 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 TDI 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 and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by TDI as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At TDI’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by TDI to the Client; or
(b) the Price as at the date of Delivery of the Goods according to TDI’s current price list; or
(c) TDI’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 TDI reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, inclement weather, limitations to accessing the site, obscured site defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos), prerequisite work by any third party not being completed, change of plans, etc.) which are only discovered on commencement of the Services; or
(d) if during the course of the Services, the Goods are not or cease to be available from TDI’s third party suppliers, then TDI reserves the right to provide alternative Goods; or
(e) in the event of increases to TDI in the cost of labour or materials which are beyond TDI’s control.
5.3 Variations will be charged for on the basis of TDI’s quotation, and will be detailed in writing, and shown as variations on TDI’s invoice. The Client shall be required to respond to any variation submitted by TDI within ten (10) working days. Failure to do so will entitle TDI 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.
5.4 At TDI’s sole discretion a fifty percent (50%) deposit may be required with the balance due seven (7) days of completion of the Services.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by TDI, which may be:
(a) by way of instalments/progress payments in accordance with TDI’s payment schedule;
(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 seven (7) days following the date of any invoice given to the Client by TDI.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and TDI.
5.7 TDI may in its discretion allocate any payment received from the Client towards any invoice that TDI determines and may do so at the time of receipt or at any time afterwards. On any default by the Client TDI may re-allocate any payments previously received and allocated. In the absence of any payment allocation by TDI, payment will be deemed to be allocated in such manner as preserves the maximum value of TDI’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TDI nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to TDI an amount equal to any GST TDI must pay for any supply by TDI under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Provision of Services
6.1 Subject to clause 6.2 it is TDI’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.2 The Services’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that TDI claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond TDI’ 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 TDI that the site is ready.
6.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that TDI (or TDI’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.4 At TDI’s sole discretion the cost of Delivery is included in the Price.
6.5 TDI may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.6 Any time specified by TDI for Delivery of the Goods is an estimate only and are based on information from TDI’s third party supplier. Standard lead times of custom-made Goods are approximately four to six (4-6) weeks, therefore TDI will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that TDI is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then TDI shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.7 Where the Client requires Delivery and/or installation of the Goods beyond the standard lead time, payment in full shall be required at the lead time.
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, TDI is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TDI is sufficient evidence of TDI’s rights to receive the insurance proceeds without the need for any person dealing with TDI to make further enquiries.
7.3 If the Client requests TDI to leave Goods outside TDI’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.4 Where TDI is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and TDI shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
7.5 The Client acknowledges and agrees that:
(a) whilst fabric and component manufacturers make every effort to match dye lots, paints, weaves, colours or shades, these may vary between batches of product and/or between sale samples and the actual Goods supplied; and
(b) fabric and component manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed; and
(c) the manufacturing process for blinds, awnings and the like may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product. The Client shall accept that some mismatching of patterned fabric may result due to the inherent nature of fabric as mentioned in the above clauses; and
(d) fabric flaws, ripples or marks will be considered viewed from at least one (1) metre of distance in an even light; and
(e) painted and powder coated surfaces will have a uniform appearance in colour and texture when viewed from at least one (1) metre of distance in an even light; and
(f) all powder coated and painted surfaces shall be free of excessive scratches that penetrate through the layers of coatings to the bare metal or surface below as per accepted industry standards.
7.6 The Client accepts that with the nature of fabric, the finished Goods may not roll up or sit level in either the up or down positions. Although TDI shall endeavour to fit the Goods to the best possible placement, the Client shall accept that framing that the Goods are being attached to may not be square and/or plumb.
7.7 The Client accepts that tension on fabric (in particular applying to Ziptrak and Zipscreen blinds) may cause some rippling and this is considered accepted industry standards.
7.8 Atmospheric conditions, including differing seasons and weather, may alter the characteristics of fabrics. The Client acknowledges and agrees that industry standards allow for up to three percent (3%) movement in manmade fabrics and five to six percent (5-6%) in natural fabrics such as silk and linen and shall not be considered a defect. TDI accepts no liability for these natural occurences.
7.9 The Client acknowledges and accepts that Goods supplied may:
(a) exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. TDI will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
(b) mark or stain if exposed to certain substances.
7.10 TDI shall not be liable for any defect, deterioration and/or damage to the Goods:
(a) if the Client does not follow TDI’s recommendations, including advice on specialist cleaning the Goods; and
(b) resulting from incorrect use and/or installation of the Goods by the Client or any other third party.
8. Accuracy of Clients Plans and Measurements
8.1 TDI shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, TDI accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or TDI places an order based on these measurements and quantities. TDI accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
9. Client’s Responsibilities
9.1 It is the Client’s responsibility to:
(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation. Where existing window furnishings are not removed at time of installation, then TDI reserves the right to charge for the removal of the same and will be invoiced as a variation; and
(b) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by TDI in this regard; and
(c) provide adequate dust sheets to protect the Client’s furniture and décor. TDI will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by the installation process; and
(d) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between TDI and the Client, any additional costs will be invoiced to the Client as an extra; and
(e) provide TDI with facilities, as specified by TDI, (including, but not limited to, a suitable free power source, toilet, waste disposal amenities, eating and first aid facilities) for the duration of the Services.
9.2 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the site that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify TDI against any costs incurred by TDI as a consequence of such discovery. Under no circumstances will TDI handle removal of asbestos product.
10.1 The Client shall ensure that TDI has clear and free access to the site at all times to enable them to undertake the Services. TDI shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of TDI.
11. Compliance with Laws
11.1 The Client and TDI shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any WorkSafe guidelines regarding health and safety laws relating to work sites and any other relevant safety standards or legislation.
11.2 Notwithstanding clause 11.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) TDI agrees at all times comply with sections 29 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the site or if in the event that they may be acting as a subcontractor for the Client’s where the Client has engaged a thirty party head contractor.
12.1 TDI and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid TDI all amounts owing to TDI; and
(b) the Client has met all of its other obligations to TDI.
12.2 Receipt by TDI of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 12.1:
(a) the Client is only a bailee of the Goods and must return the Goods to TDI on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for TDI and must pay to TDI the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for TDI and must pay or deliver the proceeds to TDI on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of TDI and must sell, dispose of or return the resulting product to TDI as it so directs;
(e) the Client irrevocably authorises TDI to enter any premises where TDI believes the Goods are kept and recover possession of the Goods;
(f) TDI may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of TDI;
(h) TDI may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to TDI for Services – that have previously been supplied and that will be supplied in the future by TDI to the Client.
13.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TDI may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, TDI for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of TDI; and
(d) immediately advise TDI of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
13.3 TDI and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by TDI, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Client shall unconditionally ratify any actions taken by TDI under clauses 13.1 to 13.5.
13.7 Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1 In consideration of TDI agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies TDI from and against all TDI’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TDI’s rights under this clause.
14.3 The Client irrevocably appoints TDI and each director of TDI as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15.1 The Client shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify TDI of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford TDI an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which TDI has agreed in writing that the Client is entitled to reject, TDI’s liability is limited to either (at TDI’s discretion) replacing the Goods or repairing the Goods.
15.2 Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:
(a) TDI has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Client’s cost within seven (7) days of the Delivery date; and
(c) TDI will not be liable for Goods which have not been stored or used in a proper manner; and
(d) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
15.3 TDI will not accept the return of non-defective Goods for credit.
15.4 Subject to clause 15.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
16.1 For Goods not manufactured by TDI, the warranty shall be the current warranty provided by the manufacturer of the Goods. TDI shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
17. Consumer Guarantees Act 1993
17.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by TDI to the Client.
18. Intellectual Property
18.1 Where TDI has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the TDI. Under no circumstances may such designs, drawings and documents be used without the express written approval of TDI.
18.2 The Client warrants that all designs, specifications or instructions given to TDI will not cause TDI to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TDI against any action taken by a third party against TDI in respect of any such infringement.
18.3 The Client agrees that TDI may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which TDI has created for the Client.
19. Default and Consequences of Default
19.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TDI’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes TDI any money the Client shall indemnify TDI from and against all costs and disbursements incurred by TDI in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TDI’s collection agency costs, and bank dishonour fees).
19.3 Further to any other rights or remedies TDI may have under this Contract, if a Client has made payment to TDI, 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 TDI under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
19.4 Without prejudice to TDI’s other remedies at law TDI shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TDI shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TDI becomes overdue, or in TDI’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 TDI;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20.1 Without prejudice to any other remedies TDI may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TDI may suspend or terminate the supply of Goods to the Client. TDI will not be liable to the Client for any loss or damage the Client suffers because TDI has exercised its rights under this clause.
20.2 TDI may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice TDI shall repay to the Client any money paid by the Client for the Goods. TDI shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by TDI as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
21. Dispute Resolution
21.1 All disputes and differences between the Client and TDI touching and concerning this agreement shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
22.1 All emails, documents, images or other recorded information held or used by TDI is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. TDI 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” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). TDI acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by TDI that may result in serious harm to the Client, TDI 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.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to TDI in respect of Cookies where transactions for purchases/orders transpire directly from TDI’s website. TDI 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 TDI when TDI sends an email to the Client, so TDI may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via TDI’s website.
22.3 The Client authorises TDI or TDI’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 TDI from the Client directly or obtained by TDI 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.
22.4 Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993.
22.5 The Client shall have the right to request TDI for a copy of the Personal Information about the Client retained by TDI and the right to request TDI to correct any incorrect Personal Information about the Client held by TDI.
22.6 TDI will destroy Personal Information upon the Buyer’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.
22.7 The Client can make a privacy complaint by contacting TDI via e-mail. TDI 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.
23. Service of Notices
23.1 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.
23.2 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.
24.1 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 TDI may have notice of the Trust, the Client covenants with TDI 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 TDI (TDI 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.
25.1 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.
25.2 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.
25.3 TDI 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 TDI of these terms and conditions (alternatively TDI’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
25.4 TDI may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
25.5 The Client cannot licence or assign without the written approval of TDI.
25.6 TDI 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 TDI’s sub-contractors without the authority of TDI.
25.7 The Client agrees that TDI 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 TDI to provide Goods to the Client.
25.8 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.
25.9 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.