Terms and Conditions of Trade
1.Definitions
1.1“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting RDS 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.
1.2“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.
1.3“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 RDS’ 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“Goods” means all Goods or Services supplied by RDS 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“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between RDS and the Client in accordance with clause 5 below.
1.6“RDS” means Ranger Drilling Supplies Limited, its successors and assigns.
2.Acceptance
2.1The 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 delivery of the Goods.
2.2In 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.
2.3Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with RDS and it has been approved with a credit limit established for the account.
2.5In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, RDS reserves the right to refuse delivery.
2.6The Client acknowledges and understands that (subject to Clause 5.2):
(a)onsite repairs shall incur RDS’ current labour rates plus kilometres travelled; and
(b)in the event the machinery requires towing or haulage, then any fees incurred for such towing shall be for the Client’s account.
2.7In the event that RDS is required to provide the Services urgently, that may require RDS’ staff to work outside normal business hours (including, but not limited to, working through lunch breaks, weekends and/or Public Holidays) then RDS reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between RDS and the Client.
2.8These terms and conditions may be meant to be read in conjunction with RDS’ Hire Form, and where the context so permits, the terms “Goods” or “Services” shall include any supply of Equipment, as defined therein.
2.9Electronic 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
3.1The Client acknowledges and accepts that RDS 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 RDS 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 RDS in respect of the Services.
3.2If 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 RDS; 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 RDS arising from the error or omission.
4.Change in Control
4.1The Client shall give RDS 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 RDS as a result of the Client’s failure to comply with this clause.
5.Price and Payment
5.1At RDS’ sole discretion the Price shall be either:
(a)as indicated on any invoice provided by RDS to the Client; or
(b)the Price as at the date of Delivery of the Goods according to RDS’ current price list; or
(c)RDS’ quoted Price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days.
5.2RDS reserves the right to change the Price:
(a)if a variation to the Services and/or 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, poor weather conditions, further faults which are found upon disassembly and/or further inspection, limitations to accessing the vehicle/machinery/site, availability of machinery, or safety considerations, prerequisite work by any third party not being completed)which are only discovered upon commencement of the Services; or
(d)in the event of increases to RDS in the cost of labour, materials or Goods(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 RDS’ control.
5.3Variations will be charged for on the basis of RDS’ quotation, and will be detailed in writing, and shown as variations on RDS’ invoice. The Client shall be required to respond to any variation submitted by RDS within five (5) working days. Failure to do so will entitle RDS 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.
5.4At RDS’ sole discretion a reasonable deposit may be required.
5.5Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by RDS, which may be:
(a)on delivery of the Goods;
(b)before delivery of the Goods including, but not limited to, Goods specifically imported for the Client;
(c)by way of instalments/progress payments in accordance with RDS’ payment schedule;
(d)for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e)the date specified on any invoice or other form as being the date for payment; or
(f)failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by RDS.
5.6Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Client and RDS.
5.7RDS may in its discretion allocate any payment received from the Client towards any invoice that RDS determines and may do so at the time of receipt or at any time afterwards. On any default by the Client RDS may re-allocate any payments previously received and allocated. In the absence of any payment allocation by RDS, payment will be deemed to be allocated in such manner as preserves the maximum value of RDS’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8The 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 RDS nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to RDS an amount equal to any GST RDS must pay for any supply by RDS 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.Delivery of Goods
6.1Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a)the Client or the Client’s nominated carrier takes possession of the Goods at RDS’ address; or
(b)RDS (or RDS’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2The cost of Delivery is either included in the Price or is in addition to the Price as agreed between the parties.
6.3RDS 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.
6.4Any time specified by RDS for Delivery of the Goods or Services is an estimate only and RDS 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 or Services to be delivered at the time and place as was arranged between both parties. In the event that RDS is unable to supply the Goods or Services as agreed solely due to any action or inaction of the Client, then RDS shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.Risk
7.1Risk 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.
7.2If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, RDS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by RDS is sufficient evidence of RDS’ rights to receive the insurance proceeds without the need for any person dealing with RDS to make further enquiries.
7.3If the Client requests RDS to leave Goods outside RDS’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.4The Client acknowledges and accepts that:
(a) RDS is only responsible for Goods that are replaced by RDS, and that in the event that other components subsequently fail, the Client agrees to indemnify RDS against any loss or damage to the Goods or the Client’s vehicle/machine, or caused by the components, or any part thereof howsoever arising;
(b)where RDS has performed temporary repairs on the vehicle/machine that:
(i)RDS offers no guarantee against the reoccurrence of the initial fault, or any further damage caused;
(ii)RDS will immediately advise the Client of the fault and shall provide the Client with an estimate for the full repair of the vehicle/machine;
(c)it is the Client’s responsibility to remove all personal/valuable items from the vehicle prior to RDS carrying out their Services. RDS shall not liable in the event of any apparent loss or damage to personal/valuable items left in the vehicle; and
(d)RDS can only provide its Services on a vehicle or machinery in its current state as supplied to RDS therefore RDS shall not accept any responsibility for the workmanship of any third party that has worked on a Client’s vehicle or machinery prior to Services being undertaken by the Client (including, but not limited to, poor paintwork or repairs).
7.5RDS shall not be liable for the loss of or damage to the vehicle or machinery, its accessories or contents while being serviced/garaged or being driven in connection with the authorised Services unless caused by the negligence of RDS or RDS’s employees.
7.6It is the Client’s responsibility to ensure that the vehicle or machinery is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at RDS’s premises. The vehicle or machinery is at all times stored and repaired at the Client’s sole risk.
7.7If a vehicle, machinery or component is submitted for repair under a warranty or insurance claim, and the claim is declined or payment delayed, the Client is liable for payment and agrees to pay for any such repair.
8.Specifications
8.1The Client acknowledges that:
(a)all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in RDS’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by RDS; and
(b)while RDS may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that RDS has given these in good faith, and are estimates based on industry prescribed estimates under optimal conditions.
9.Testing of Machinery
9.1RDS or its employees may carry out tests on the machinery at RDS’ discretion. RDS will not be liable for (and the Client indemnifies RDS against) any damages caused to, or by, the machinery during such tests, collection or delivery unless it arises from the recklessness or wilful misconduct of RDS or its employees.
10.Access
10.1The Client shall ensure that RDS has clear and free access to the site/vehicle/machinery at all times to enable them to undertake the Services and/or effect Delivery. RDS shall not be liable for any loss or damage to the surrounding area unless due to the negligence of RDS.
11.Compliance With Laws
11.1The Client and RDS 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 or any other relevant safety standards or legislation pertaining to the Services.
11.2Where the Client has supplied products for RDS to complete the Services, the Client acknowledges that it accepts responsibility for the suitability of purpose and are for their intended use and any faults inherent in those products. However, if in RDS’ opinion, it is believed that the products supplied are non-conforming products and will not conform with New Zealand regulations, then RDS shall be entitled, without prejudice, to halt the Services until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 5.2.
11.3The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
12.Title
12.1RDS and the Client agree that ownership of the Goods shall not pass until:
(a)the Client has paid RDS all amounts owing to RDS; and
(b)the Client has met all of its other obligations to RDS.
12.2Receipt by RDS 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.
12.3It 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 RDS on request;
(b)the Client holds the benefit of the Client’s insurance of the Goods on trust for RDS and must pay to RDS 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 RDS and must pay or deliver the proceeds to RDS 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 RDS and must sell, dispose of or return the resulting product to RDS as it so directs;
(e)the Client irrevocably authorises RDS to enter any premises where RDS believes the Goods are kept and recover possession of the Goods;
(f)RDS 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 RDS; and
(h)RDS 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”)
13.1Upon 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 that have previously been supplied and that will be supplied in the future by RDS to the Client, and the proceeds from such Goods as listed by RDS to the Client in invoices rendered from time to time.
13.2The 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 RDS may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b)indemnify, and upon demand reimburse, RDS 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 or the proceeds of such Goods in favour of a third party without the prior written consent of RDS; and
(d)immediately advise RDS 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.
13.3Unless otherwise agreed to in writing by RDS, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.4The Client shall unconditionally ratify any actions taken by RDS under clauses 13.1 to 13.3.
13.5Subject 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
14.1In consideration of RDS 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, 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.
14.2The Client indemnifies RDS from and against all RDS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising RDS’ rights under this clause.
14.3The Client irrevocably appoints RDS and each director of RDS 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.Defects
15.1The Client shall inspect the Goods on Delivery and shall within three (3) days of Delivery (time being of the essence) notify RDS of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford RDS 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 fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which RDS has agreed in writing that the Client is entitled to reject, RDS’ liability is limited to either (at RDS’ discretion) replacing the Goods or repairing the Goods.
15.2Goods will not be accepted for return other than in accordance with 15.1 above, and provided that:
(a)RDS has agreed in writing to accept the return of the Goods; and
(b)the Goods are returned at the Client’s cost within ten (10) days of the Delivery date; and
(c)RDS 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.
15.3If RDS accepts that the Client is entitled to reject the Goods following their return pursuant to clause 15.2(b) RDS will reimburse the Client’s actual and reasonable costs of return Delivery.
15.4RDS may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
15.5Subject to clause 15.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
16.Warranty
16.1For Goods not manufactured by RDS, the warranty shall be the current warranty provided by the manufacturer of the Goods. RDS 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 and the Fair Trading Act 1986
17.1If 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 (“CGA”) do not apply to the supply of Goods by RDS to the Client.
17.2RDS agrees to abide by the provisions of the Fair Trading Act (“FTA”).
18.Intellectual Property
18.1Where RDS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of RDS. Under no circumstances may such designs, drawings and documents be used without the express written approval of RDS.
18.2The Client warrants that all designs, specifications or instructions given to RDS will not cause RDS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify RDS against any action taken by a third party against RDS in respect of any such infringement.
18.3The Client agrees that RDS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which RDS has created for the Client.
19.Default and Consequences of Default
19.1Interest 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 RDS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2If the Client owes RDS any money the Client shall indemnify RDS from and against all costs and disbursements incurred by RDS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, RDS’ collection agency costs, and bank dishonour fees).
19.3Further to any other rights or remedies RDS may have under this Contract, if a Client has made payment to RDS, 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 RDS 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.
19.4Without prejudice to RDS’ other remedies at law RDS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to RDS shall, whether or not due for payment, become immediately payable if:
(a)any money payable to RDS becomes overdue, or in RDS’ 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 RDS;
(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.Cancellation
20.1Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply or purchase of Goods to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
20.2If RDS, due to reasons beyond RDS’ reasonable control, is unable to the deliver any Goods to the Client, RDS 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 RDS shall repay to the Client any money paid by the Client for the Goods. RDS shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3The Client may cancel Delivery of the Goods and/or Services by written notice served within twenty-four (24) hours of placement of the order. Failure by the Client to otherwise accept Delivery of the Goods and/or Services shall place the Client in breach of this Contract.
20.4Cancellation 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.Privacy Policy
21.1All emails, documents, images or other recorded information held or used by RDS is “Personal Information” as defined and referred to in clause 21.3 and therefore considered confidential. RDS 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 as set out in the Act. RDS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by RDS that may result in serious harm to the Client, RDS will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
21.2Notwithstanding clause 21.1, privacy limitations will extend to RDS in respect of Cookies where the Client utilises RDS’ website to make enquiries. RDS 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 RDS when RDS sends an email to the Client, so RDS may collect and review that information (“collectively Personal Information”) If the Client consents to RDS’ use of Cookies on RDS’ website and later wishes to withdraw that consent, the Client may manage and control RDS’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
21.3The Client authorises RDS or RDS’ 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 RDS from the Client directly or obtained by RDS 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.
21.4Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 2020.
21.5The Client shall have the right to request (by e-mail) from RDS, a copy of the Personal Information about the Client retained by RDS and the right to request that RDS correct any incorrect Personal Information.
21.6RDS 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.
21.7The Client can make a privacy complaint by contacting RDS via e-mail. RDS 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 Privacy Commissioner at http://www.privacy.org.nz.
22.Service of Notices
22.1Any 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.
22.2Any 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.
23.Trusts
23.1If 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 RDS may have notice of the Trust, the Client covenants with RDS 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 RDS (RDS 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.
24.General
24.1The 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.
24.2These 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 Dunedin, New Zealand.
24.3Subject to the CGA, the liability of RDS and the Client under this Contract shall be limited to the Price.
24.4RDS 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.
24.5The Client cannot licence or assign without the written approval of RDS.
24.6RDS 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 RDS’ sub-contractors without the authority of RDS.
24.7The Client agrees that RDS 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 RDS to provide Goods to the Client.
24.8Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, 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 any payment due to RDS, following cessation of a Force Majeure.
24.9Both 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.