Terms of Trade

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

“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting PWC 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.

1.3

“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 PWC’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.

1.4

“Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by PWC in the course of it conducting, or supplying to the Client, any Services.

1.5

“Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between PWC and the Client in accordance with clause 7 of this Contract.

1.6

“PWC” means Power Weed Control Limited, its successors and assigns.

1.7

“Services” means all Services supplied by PWC to the Client at the Client’s request from time to time.

1.8

“Site” means the address nominated by the Client to which the Services are to be supplied by PWC.

2.

Acceptance

2.1

The parties acknowledge and agree that:

(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by PWC.

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

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.

2.5

These terms and conditions may be meant to be read in conjunction with PWC’s Hire Form, Terms and Conditions and Privacy Policy Manual posted on PWC’s website, and where the context so permits, the terms ‘Services’ or ‘Incidental Items’ shall include any supply of Equipment, as defined therein.

2.6

Where the Client requesting or organising PWC to provide the Services is acting on behalf of any third party (including but not limited to multiple property owners and/or contributors to any driveway, fence, retaining wall, boundaries), and that third party is intended to be responsible for either the full or partial payment of the Price, then in the event that third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the full payment of the Price as if they had contracted the Services on their own behalf.

2.7

The Client acknowledges that:

(a) the supply of Services on credit shall not take effect until the Client has completed a credit application with PWC and it has been approved with a credit limit established for the account. In the event that the supply of Services request exceeds the Client's credit limit and/or the account exceeds the payment terms, PWC reservices the right to refuse delivery; and
(b) they agree that:

(i) in the event PWC require access, in order to undertake the Services, to an adjoining or adjacent property or land to the nominated job Site, that is not owned by the Client, then it is the Client’s responsibility to gain permission from the land owner to use the above mentioned property throughout the process or delivering the Services. In the event the land owner denies access or use of the land or property, the Client shall be liable for all costs incurred by PWC in gaining permission to access and/or use the property through any legal process that may be deemed necessary;
(ii) they will advise PWC prior to commencement of any Services where the removal of any trees may be subject to a protection order and/or on a heritage list and warrants to ensure that PWC’s Services will comply with the relevant restrictions, legislation and/or by-laws. PWC shall not be liable for any loss, expense or damage suffered by the Client in relation to the Services where resulting from the Client’s non-compliance with this clause.

3.

Authorised Representatives

3.1

Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to PWC as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies PWC in writing that said person is no longer the Client’s duly authorised representative).

3.2

In the event that the Client's duly authorised representative as per Clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise PWC in writing of the parameters of the limited authority granted to their representative.

3.3

The Client specifically acknowledges and accepts that they will be solely liable to PWC for all additional costs incurred by PWC (including PWC’s profit margin) in providing any Services, or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4.

Errors and Omissions

4.1

The Client acknowledges and accepts that PWC 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 PWC 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 PWC 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 PWC; the Client:

(a) shall not be entitled to treat this Contract as repudiated nor render it invalid; but
(b) shall not be responsible for any additional costs incurred by PWC arising from the error or omission.

5.

Change in Control

The Client shall give PWC 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 PWC as a result of the Client’s failure to comply with this clause.

6.

Contract Term

6.1

The commencement date shall be the date of the first delivery of the Services under a service agreement, or from the date of signing, whichever is the earlier.  A service agreement shall be for the period ("initial term") as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days' required notice as defined in the service agreement prior to the expiration date of the initial term or any additional term. 

6.2

The Client acknowledges and accepts that all fixed term Contracts are subject to periodic price reviews to allow for increases to PWC which are beyond PWC’s control and will be subject to revision on the basis of changes to the costs of labour, materials or movement in the Consumer Price Index (CPI).

7.

Price and Payment

7.1

At PWC’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by PWC to the Client; or
(b) the Price as at the date of delivery of the Services according to PWC’s current price list; or
(c) PWC’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

PWC reserves the right to change the Price: 

(a) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions and resultant delays, limitations to accessing Site, availability of machinery, safety considerations, obscured Site defects which require remedial work, inaccurate plans or specifications supplied by the Client, prerequisite work by a third party not being completed (including the provision of consents, permits or approvals being granted), lack of required utilities, hard rock or other barriers below the surface, latent soil conditions, iron reinforcing rods in concrete, or hidden pipes or wiring, etc.) which are only discovered on commencement of the Services.
(c) in the event of increases to PWC in the cost of labour or materials which are beyond PWC’s control.

7.3

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

Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by PWC, which may be:

(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with PWC’s payment schedule;
(c) payment for approved Clients shall be due by the 20th of the month following the date of PWC’s invoice as issued to you, whether posted, emailed, or issued by other acceptable methods; or
(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 Client by PWC.

7.5

In the event that the Client defaults on payment PWC reserves the right to enforce clause 20.

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 Client and PWC.

7.7

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

7.8

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 PWC nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify PWC in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as PWC investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in PWC placing the Client’s account into default and subject to default interest in accordance with clause 20.1.

7.9

Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to PWC an amount equal to any GST PWC must pay for any supply by PWC under this or any other agreement for providing PWC’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.

8.

Provision of the Services

8.1

At PWC’s sole discretion delivery of the Services shall take place when:

(a) the Services are supplied to the Client at PWC’s address; or
(b) the Services are supplied to the Client at the Client’s nominated address.

8.2

Subject to clause 8.3 it is PWC’s responsibility to ensure that the Services start as soon as it is reasonably possible.

8.3

The Services' commencement date will be put back and the completion date extended by whatever time is reasonable in the event that PWC claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond PWC'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 PWC that the Site is ready.

8.4

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.

8.5

PWC 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.

8.6

Any time specified by PWC for delivery of the Services is an estimate only and PWC 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 PWC is unable to supply the Services as agreed solely due to any action or inaction of the Client then PWC shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

9.

Site Access and Condition

9.1

The Client shall ensure that PWC has clear and free access to the Site (and that such access is suitable to accept the weight of laden trucks, front end loaders or other heavy equipment as may be deemed necessary by PWC), on the agreed date/s and time/s, to enable PWC to provide the Services, and:

(a) fully disclose any information that may affect PWC procedures; and
(b) PWC 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 PWC; and
(c) if the Services are interrupted by the failure of the Client to adhere to the work schedule agreed to between PWC and the Client, any additional costs will be invoiced to the Client as a variation in accordance with clause 7.2.

9.2

The Client agrees to remove any furniture, furnishings, crockery, pot plants, ornaments or personal goods from the vicinity of the Services and agrees that PWC shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.

9.3

It shall be the Client’s responsibility to allocate an area for the accumulation and removal of any rubbish created from the provision of the Services by PWC, and the cost of such shall be incurred by the Client.

9.4

Upon completion of the Services, PWC will carry out a reasonable clean-up of the Client’s property and shall remove all major debris, however, the Client acknowledges and accepts that PWC will not be liable to restore the Client’s property to its original condition (i.e. as it was) prior to the commencement of any Services. Clearance of any minor debris remaining after PWC clean-up will be the Client’s responsibility.

10.

Risk

10.1

Irrespective of whether PWC 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 PWC may repossess the Incidental Items.  The Client must insure all Incidental Items on or before delivery. ​​​​​

10.2

PWC 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 10.1.

10.3

​​​​​​​PWC 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, PWC accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

10.4

​​​​​​​PWC reserves the right to refuse to enter the Site and/or continue to complete the Services in the event that PWC believes the Site (including, but not limited to, trees/vegetation on and/or extending over the Site from a neighbouring property) to be unsafe to either PWC’s employees and/or the Client’s property. In this event, the Client accepts PWC’s right to delay the provision of the Services (as per clause 8.3) and negotiate with the Client who will be responsible to make the Site safe before PWC can continue the Services. Where it is agreed that PWC is responsible, all associated costs incurred (including, but not limited to, engaging any required third party tradesman, etc.) will be on-charged to the Client and invoiced as a variation in accordance with clause 7.2. PWC shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe Site.

10.5

Landscaping

(a) ​​​PWC reserves the right during the course of the Services to enhance each species natural growth form, (including, but not limited to thinning, pruning, and removal of deadwood, dangerous limbs or limbs for clearance).
(b) ​​​​​Where the Client has provided instructions or specifications for PWC to complete the Services (including, but not limited to, any requested variation to the original design), then PWC shall accept no liability whatsoever for the finished Services being deemed as unsatisfactory to the Client.
(c) ​​​​​PWC shall not be liable whatsoever for any loss or damage to the Services (including, but not limited to, surfaces) that is caused by any other third party.
(d) ​​​​​The Client acknowledges that all shrubs, plants, natural turf and any other flora, foliage or vegetation become the responsibility of the Client on completion of the Services, and that no maintenance thereof by PWC is included unless instructed by the Client and agreed to in writing between the parties.

11.

Dial Before You Dig

11.1

​​​​​​​Location of underground services by a licensed service locator is mandatory prior to commencement of any Services. It shall be the Client’s responsibility to consult “Dial Before You Dig” and any potential underground services marked on the Site. The Client shall upon request by PWC, provide a copy of the “Dial Before You Dig” report/information relating to the underground services. Whilst PWC will take all care to avoid damage to any underground services the Client agrees to indemnify PWC in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified.

12.

Underground Locations

12.1

​​​​​​​Prior to PWC commencing any work the Client must (where applicable) advise PWC of the precise location of all underground services on the Site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on Site.

12.2

​​​​​​​Whilst PWC will take all care to avoid damage to any underground services the Client agrees to indemnify PWC in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 9.1.

13.

Compliance with Laws

13.1

The Client and PWC 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 health and safety laws relating to or any other relevant safety standards or legislation pertaining to the Services. 

13.2

​​​​​​​The Client shall obtain (at the expense of the Client) all licences and approvals that may be required for the Services.

13.3

​​​​​​​Notwithstanding clause 13.1 and pursuant to the Health and Safety at Work Act 2015 (the “HSW Act”) PWC agrees at all times to comply with sections 28 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 where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.

14.

Title

14.1

PWC 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 PWC all amounts owing for the Services; and 
(b) the Client has met all other obligations due by the Client to PWC in respect of all contracts between PWC and the Client. 

14.2

​​​​​​​Receipt by PWC 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 PWC’s ownership in the Incidental Items or rights in respect of the Services shall continue.

14.3

It is further agreed that:

(a) ​​​​​​the Client is only a bailee of the Incidental Items and must return the Incidental Items to PWC immediately upon request by PWC;
(b) ​​​​​​​the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for PWC and must pay to PWC the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) ​​​​​​​the Client must not sell, dispose of, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for PWC and must pay or deliver the proceeds to PWC on demand;
(d) ​​​​​​​the Client should not convert or process the Incidental Items 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 PWC and must dispose of or return the resulting product to PWC as PWC so directs;
(e) ​​​​​​​the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of PWC;
(f) ​​​​​​​the Client irrevocably authorises PWC to enter any premises where PWC believes the Incidental Items are kept and recover possession of the Incidental Items.

15.

Personal Property Securities Act 1999 ("PPSA")

15.1

​​​​​​​In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

15.2

​​​​​​​Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:

(a) ​​​​​all Incidental Items previously supplied by PWC to the Client;
(b)all Incidental Items that will be supplied in the future by PWC to the Client and the proceeds from such Incidental Items as listed by PWC to the Client in invoices rendered from time to time; and 
(c) ​​​​all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to PWC for Services – that have previously been provided and that will be provided in the future by PWC to the Client.

15.3

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 PWC may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) ​​​​​indemnify, and upon demand reimburse, PWC 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 or the proceeds of such Incidental Items in favour of a third party without the prior written consent of PWC. 

15.4

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

15.5

​​​​​​​The Client shall unconditionally ratify any actions taken by PWC under clauses 15.1 to 15.4.

15.6

​​​​​​​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 PWC 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, and the Client grants a security interest in all of its present and after-acquired property, 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). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

16.2

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

16.3

​​​​​​​The Client irrevocably appoints PWC and each director of PWC as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15.1 including, but not limited to, signing any document on the Client’s behalf.

17.

Defective Services

17.1

​​​​​​​The Client shall inspect the Services on delivery and shall within five (5) days of delivery notify PWC of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote.  The Client shall afford PWC 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. 

17.2

​​​​​​​For defective Services, which PWC has agreed in writing that the Client is entitled to reject, PWC’s liability is limited to either (at PWC’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 17.1.

18.

Consumer Guarantees Act 1993 and the Fair Trading Act 1986

18.1

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 PWC to the Client.

18.2

​​​​​​​PWC agrees to abide by the provisions of the Fair Trading Act 1986 (“FTA”).

19.

Intellectual Property

19.1

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

19.2

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

19.3

​​​​​​​The Client agrees that PWC may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which PWC has created for the Client.

20.

Default and Consequences of Default

20.1

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 PWC's sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement. 

20.2

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

20.3

​​​​​​​Further to any other rights or remedies PWC may have under this Contract, if a Client has made payment to PWC, 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 PWC under this clause 20, 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.

20.4

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

20.5

​​​​​​​Without prejudice to PWC’s other remedies at law PWC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to PWC shall, whether or not due for payment, become immediately payable if:
(a) any money payable to PWC becomes overdue, or in PWC’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 PWC;
(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.

21.

Cancellation

21.1

Either party may, cancel these terms and conditions or cancel provision of the Services: 
(a) if there is no contract term specified, at any time by giving thirty (3) days' notice to the other party;
(b) ​​​​​​​if a contract term is specified, at any time after the end of the Contract term by giving thirty (30) days’ notice to the other party; and
​​​​​​​(c) ​​​​​failure to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the Contract term, the Contract term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing PWC with thirty (30) days’ notice.

21.2

​​​​​​​PWC may, in addition to their right to cancel under clause 21.1:
(a) do so at any time:
 

21.3

In the event of the premature termination of this Contract including by notification from the Client (at least thirty (30) days prior to the expiration date of the contract term), or as a result of default, by excluding any breach or termination of this Contract by PWC: 

(a) the Client shall be responsible for the immediate payment of the following sums:
 

1. all monies due and payable up to the date of cancellation, noting applicable rates may change if the fixed term is shorter than that noted in the quotation; and
2. all other sums owing by the Client under this Contract (or any other Contract with the Client) as a result of the default and cancellation of this Contract, including consequential damages and any and all loss of profits, costs, charges and expenses incurred by PWC in connection with (and resulting from) the premature termination of this Contract, which shall be calculated at a minimum of thirty percent (30%) of the remainder of the Price under this Contract where a fixed term applies.

21.4

​​​​​​​Except so far as clause 21.3 applies, on cancellation PWC shall be entitled to:

(a) retain all monies paid to it under this Contract; and
(b) recover from the Client any other monies due and owing under this Contract as at the date of cancellation.

22.

Privacy Policy

22.1

All emails, documents, images, or other recorded information held or used by PWC is "Personal Information" as defined and referred to in clause 22.3 and therefore considered confidential.  PWC 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 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”).  PWC acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by PWC that may result in serious harm to the Client, PWC 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 PWC in respect of Cookies where the Client utilises PWC’s website to make enquiries. PWC 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 PWC when PWC sends an email to the Client, so PWC may collect and review that information (“collectively Personal Information”)

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

22.3

​​​​​​​The Client authorises PWC or PWC's agent to:

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

1. 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
2. for the purpose of marketing products and services to 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 2020.

22.5

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

22.6

​​​​​​​PWC 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. 

22.7

​​​​​​​The Client can make a privacy complaint by contracting PWC via e-mail. PWC will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complain 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 Privacy Commissioner at http://www.privacy.org.nz.

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.

Trusts

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 or as an agent for a trust (“Trust”) then whether or not PWC may have notice of the Trust, the Client covenants with PWC as follows:

(a) ​​​​​​the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) ​​​​the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe 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, the trustees and 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 during the term of the Contract without consent in writing of PWC (PWC 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 fund or trust property.

25.

General

25.1

​​​​​​​Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

25.2

​​​​​​​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.

25.3

​​​​​​​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 Hamilton District Court.

25.4

​​​​​​​Subject to the CGA, the liability of PWC and the Client under this Contract shall be limited to the Price.

25.5

​​​​​​​PWC may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.

25.6

​​​​​​​The Client cannot licence or assign without the written approval of PWC.

25.7

​​​​​​​PWC 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 PWC’s sub-contractors without the authority of PWC.

25.8

​​​​​​​The Client agrees that PWC 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 PWC to provide Services to the Client.

25.9

​​​​​​​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. This clause does not apply to a failure by the Client to make a payment to PWC, following cessation of a Force Majeure.

25.10

​​​​​​​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.