Terms and Conditions

1. DEFINITIONS

“Customer” or “you” and similar terms means the customer as described on any quotation, work authorisation or other form as provided by us to the customer, and includes any person acting on the customer’s behalf or with the customer’s express or implied authority and your executors, administrators, successors in title, and permitted assigns;

“Damages” means all liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis) whether incurred by or awarded against a party) including those associated with any third party claim, and whether arising under contract, tort (including negligence) or otherwise;

“Goods” means all product supplied by us to a Customer for value (including those which we may from time to time provide to support the Services) and includes Goods described on any invoices, quotation, Scope of Services, work authorisation or any other forms as provided by us to the Customer;

“GST” means goods and services tax payable in accordance with the Goods and Services Tax Act 1985;

“Intellectual Property” includes (whether in visible, electronic or any other form) all brands (including our name and brand), designs, drawings, specifications, technical data, know-how, techniques, goodwill, logos, formulae, copyright, manufacturing processes, patents and trademarks (if any) whether registered or not, business contracts and intellectual property relating to our Website our business or Goods or Services supplied by us.

“PPSA” means the Personal Property Securities Act 1999;

“PPSR” means the New Zealand Personal Property Securities Register;

“Price” means (subject to any Variation) the purchase price payable for the Goods and/or Services as notified by us from time to time verbally or in writing;

“Privacy Policy” means our privacy policy set out on the Website at https://www.pukkapools.co.nz/privacy-policy;

“Property” means any property at which Services are to be performed;

“Services” includes all swimming pool and spa-related services provided by us for value to a Customer. This includes, without limitation, one-off services such as cleans, green pool recoveries, leak detections and dive repairs, equipment supply and installation, as well as ongoing services such as regular pool and spa maintenance. It also includes the installation of Goods and any recommendations or advice and covers all other related services we may agree to provide Customers from time to time;

“Scope of Services” means the details provided by us outlining the provision of the Goods and/or Services, which can be delivered verbally or in writing;

“Terms” means these terms and conditions of trade as may be amended from time to time;

“Variation” means any matter affecting the Price, as detailed in clause 5.3;

“We”, “our” or “us” and similar terms means Pukka Pools Limited, a New Zealand registered company (company number 8207760), our successors and assigns or our authorised agent;

“Website” means our website at https://www.pukkapools.co.nz;

“Website Terms” means the terms and conditions of website use as published on the Website;

“Working day” means any day not being a Saturday or Sunday or statutory holiday in Auckland, New Zealand.

2. NATURE AND SCOPE OF TERMS

2.1 For clarity, pre-purchase inspection services that we provide are excluded and are governed by a separate stand-alone agreement, available on request.

2.2 Any other order whether verbal or written received by us from a Customer for or confirming the supply of Goods or Services and/or Scope of Services following receipt of these Terms (herein referred to as an “order”), including by registering as a Customer on our Website, constitutes acceptance of these Terms and (subject to clause 2.3) you may not revoke or cancel an order without our prior written consent which may be withheld at our sole discretion and in which case you will be liable for all Damages incurred by us to the date we confirm cancellation. Customer acknowledges and agrees that we are not under any duty to accept orders.

2.3 A Customer may terminate future Services consisting of regular pool and/or spa maintenance by giving not less than one (1) month’s prior written notice. Such Customers acknowledge and agree that:

(a) maintenance needs vary between seasons, and we will use our expertise to recommend adjustments to the Services accordingly;

(b) where you choose not to follow our recommendations, we cannot accept responsibility for any resulting issues.

Termination of Services under this clause does not affect any rights, remedies, or claims we may have in relation to any breach or other matter arising prior to the effective date of termination. This right of termination applies only to such regular maintenance services and does not apply to terminate any contract for other Services provided under these Terms.

2.4 All Customers acknowledge and agree that we are not responsible for:

(a) maintaining pool or spa water levels, or for any issues, performance problems or Damages resulting from water levels being too high or too low. It is your responsibility to ensure that water levels remain within the appropriate operating ranges, including during periods between scheduled services by us (where applicable); or

(b) the occurrence or recurrence of algae blooms, except where they arise directly as a result of our failure to carry out the Services with reasonable care and skill. Algae growth can be influenced by factors beyond our control, including weather conditions, water chemistry, usage, inadequate circulation or filtration, and failure to follow our recommendations. Where you do not act on our advice on matters including water balance, equipment maintenance, or service adjustments, we accept no liability for any resulting algae issues.

2.5 Unless we in our absolute discretion agree otherwise in writing (which agreement may be subject to conditions):

(a) Goods are only available for delivery in New Zealand and we will not accept orders for delivery outside of New Zealand; and

(b) our Services are only available within the “Areas We Service” advertised on our Website and we will not accept bookings for Services outside those areas.

2.6 The Customer acknowledges and agrees that:

(a) all Goods offered on the Website are subject to availability and we may cancel any order for Goods by notification to the Customer by email, telephone or otherwise on reasonable grounds including non-availability of stock or personnel to fulfil such orders; and

(b) We may also cancel any order for Goods made by the Customer where the prices or other information in respect of such Goods are inaccurate, out of date or subject to error or omission,

and our only liability in respect of such cancellations is to refund to the Customer any amount paid for such Goods

2.7 You acknowledge that we do not offer certain supplies, such as pool construction and structural repairs that may constitute “building work” under the Building Act 2004 and which may therefore require approvals under applicable laws (such as building or resource consents). While we may suggest that certain orders you submit to us are likely to require consents, permits, or other regulatory approvals, we are not qualified to provide formal advice or determinations on such matters. You must seek independent advice from your architect, planner, or other suitably qualified professional to confirm whether any such approvals are required.

2.8 No agent or representative of ours is permitted to make any agreements, representations, conditions, or warranties not expressly confirmed by us in writing.

2.9 If there are any terms or conditions inserted or imposed in an order by a Customer that are inconsistent with or in addition to these Terms or any Scope of Services we hereby reject same, and they will be deemed null and of no effect, even if we accept or acknowledge such order itself.

2.10 Any changes to these Terms are deemed to be accepted 14 days following our sending such amended Terms to a Customer. Any subsequent supply of Goods or Services to a Customer following that date shall be governed by the amended or updated Terms.

3. PRIVACY AND INFORMATION

3.1 Customer acknowledges it has read, received, agreed to and understood our Privacy Policy and Website Terms as may be amended from time to time and which are incorporated into these Terms.

3.2 Where Goods or Services are supplied on credit the Customer authorizes us to obtain information about the Customer from the Customer or any third party and to divulge that information to any third party in the course of our business for business purposes, including but not limited to a credit and debt collection agency for the purposes of credit assessment and debt collection.

3.3 Any information we collect concerning the Customer will be retained by us for so long as the Customer continues to purchase Goods or Services from us and for our related business purposes.

3.4 From time to time we like to send Customers information about Goods, Services or other topical informational, promotional or marketing material that relate to us or our affiliates and third parties, that we consider Customers may be interested in. You consent to our forwarding such information to you by email. Should you wish to cease receiving this information you may unsubscribe from it at any time using the process set out in the emails that you will receive in respect of this information.

3.5 You further agree to our taking photos and videos of your pool and equipment for use on our Website, staff training, and promotional materials, provided that no individuals or identifying features of Customer or the Property (such as addresses) are captured. Such images may be used in perpetuity and cropped, edited, combined with other works or text, and otherwise modified or reproduced including so as to comply with the foregoing proviso.

4. PAYMENT TERMS

4.1 Once Goods and/or Services are ordered, Customer must pay us the Price for the Goods and/or Services as detailed in this clause 4 in cleared funds without deduction or setoff, notwithstanding delivery or performance may not have occurred. The onus is on the Customer to confirm the Scope of Services and the Price prior to ordering Goods and/or Services.

4.2 Unless otherwise stipulated in writing in respect of a particular supply, the Price is payable:

(a) as to 50%, immediately upon our notifying you of the Price (whether such notification occurs before or after an order) and the total balance is payable:

(i) where orders are for Goods only, before dispatch of the Goods; or

(ii) for Services supplies or mixed Goods and Services supplies, upon delivery;

(b) where we have agreed to provide credit facilities to a Customer (i.e. for regular supplies of Services), in full within 5 working days following date of invoice,

PROVIDED that we reserve the right to change payment terms at any time prior to the provision of Goods and/or Services (including, without limitation, requiring additional payment in advance).

4.3 We have the absolute right to withhold or suspend delivery and supply of Goods and/or Services, where Customers do not adhere to these payment terms.

4.4 In the event of any payment default under these Terms, Customers must pay us default interest (at the rate of 2.5% per month above the current overdraft rate we have with our bank) which shall accrue on a daily basis from the date when payment is due until the date when payment is actually made whether before or after judgement.

5. PRICE

5.1 Unless otherwise stated, Price does not include GST, other taxes, levies and tariffs, which are payable by Customer on the Goods and/or Services the subject of these Terms, as invoiced by us on the payment terms on that invoice and if rendered on the same date, or on the same invoice as the Goods and/or Services supplied, at the same time as payment for the Goods and/or Services to which the GST relates. Where relevant, all other costs and expenses (including without limitation exchange rate fluctuations, insurance charges, travel charges, freight, storage fees, or packaging costs), will be charged to Customer and are payable to us upon demand.

5.2 Subject to clause 5.3, Price will be as specified and valid for the term on a Price notification, but in no case (whether specified or not) shall a Price be valid for more than 10 working days.

5.3 We reserve the right to increase the Price upon written notice to Customer and to take into account:

(a) any agreed Variations including without limitation changes to Scope of Services, quantities, specifications and time of supply. We further reserve the right to charge a cancellation or rescheduling fee of up to 50% of the Price if the Customer cancels or seeks to reschedule the Services with less than 24 hours’ prior written notice.

(b) additional costs incurred by us including without limitation, costs due to our not being able to safely access or access the Property (including due to the presence of unrestrained animals), caused by severe inclement weather, other acts of nature, vandalism, or other actions causing excessive accumulation of dirt (or similar), additional administration and/or estimation costs.

(c) additional Goods and/or Services required (including any specialty chemicals) due to the discovery of issues that were not apparent at the time Price and/or Scope of Services was first notified.

(d) increases in the costs of goods or services which are beyond our control, including without limitation increases in the cost of labour, cost of materials or cost of consumables.

6. DELIVERY AND RISK

6.1 If we specify an anticipated delivery or performance date for Goods and/or Services (including any staged supply), we will use reasonable endeavours to arrange delivery or performance by that date but are not liable for any delay, nor does such delay entitle you to any Damages whatsoever nor entitle you to refuse to accept delivery or to cancel any order. Where it is necessary, in our reasonable opinion, we may postpone supplies.

6.2 Where Goods are to be collected from us by a Customer, we will notify the Customer (verbally or in writing) and Customer must collect them within 48 hours of such notice, provided that after that 48 hour period:

(a) Customer shall on demand pay to us reasonable storage costs until such time as the Customer collects them, such costs to be determined by us (acting reasonably); and

(b) Delivery will be deemed to have occurred and risk (including, without limitation, insurance responsibility) in the Goods shall be deemed to have passed to the Customer.

6.3 Otherwise, delivery of Goods shall be deemed complete on the earliest to occur of the following:

(a) when we install or otherwise give possession of the Goods to the Customer; or

(b) The Goods are left at the Customer’s nominated address; or

(c) The Goods are given to a carrier, for delivery to the Customer.

6.4 Risk (including, without limitation, insurance responsibility) of any loss, damage or deterioration of or to the Goods shall pass to the Customer upon such delivery of Goods to the Customer. To avoid doubt, we will not be liable to the Customer for any Damages once Goods are delivered, including but not limited to loss in transit and/or damage in transit and/or prolonged exposure of the Goods to the environment.

6.5 Risk shall pass back from the Customer to us only if we repossess the Goods.

7. GOODS CLAIMS

7.1 Direct sales of Goods for personal or household use by a consumer shall be dealt with in accordance with the Consumer Guarantees Act 1993. All other claims (such as for Goods supplied in trade) shall be dealt with in accordance with clauses 7.2 to 7.6 (inclusive).

7.2 In respect of claims made in respect of defective Goods, claims must be made in the following manner:

(a) Immediately following delivery or part delivery as the case may be Customer must notify us in writing such notice providing specific details of any defects; and

(b) In any case where the defect is not reasonably able to be ascertained upon delivery, Customer must notify us, within 7 days of delivery, of the full particulars of the defect and the Customer must return the Goods (if requested by us) at Customer’s cost.

7.3 In the event we accept a claim we may, at our option:

(a) replace or repair the Goods; and/or

(b) credit the Customer’s account; and/or

(c) pay an amount equivalent to the established claim,

in full settlement of the claim.

7.4 In the event we do not accept such a claim, the parties shall resolve any dispute in accordance with clause 14 of these Terms.

7.5 To avoid doubt:

(a) we will not accept Goods returned for credit that are in any way damaged, or not of merchantable quality, or that have been specially procured for the Customer; and

(b) Where we repossess Goods returned in good merchantable quality, we shall also be entitled to charge Customer a re-stocking fee of 10% of the Price of such Goods supplied.

7.6 In no event whatsoever shall any claim for defect in Goods exceed the Price of such defective Goods supplied.

8. LIMITATION OF WARRANTY / LIABILITY

Goods

8.1 Customer acknowledges that we source all Goods from third party manufacturers and suppliers. To the extent the law permits, we are not liable for any claim or Customer Damages whatsoever in respect of defective Goods or materials and do not warrant any third party goods or services and have no liability to Customers in respect of any third party supplies.

8.2 Our obligation in respect of Goods is limited to passing on the benefit of any available third party warranties to the Customer to the extent we are permitted to do so without ourself being directly liable to the Customer under such warranty and, where applicable, application or installation (refer clauses 8.5 and 8.6). Any such warranty may be voided by damage or misuse of the Goods, problems caused by your use or misuse of them, including negligent operation, inadequate cleaning or maintenance, unauthorised repairs, modifications or the addition of incompatible hardware.

8.3 We do not undertake that repair facilities and parts will be available for the Goods and may at our discretion notify the manufacturer or supplier of the Goods of any defect notified by the Customer and or request the manufacturer or supplier to repair or replace any defective Goods.

8.4 We will provide you reasonable assistance in liaising with or pursuing claims that you might wish to initiate under any available warranties supplied by any third-party supplier or manufacturer, provided that:

(a) You will meet all reasonable costs and out of pocket expenses incurred by us in relation to such assistance; and

(b) we will not have any responsibility for any outcome obtained or not obtained.

Services

8.5 We use reasonable care and skill in providing Services. We offer a workmanship warranty of twelve (12) months from the date of the relevant supply and, in respect of leak detection services, a 6-month warranty from the date of completion. In each case, our liability for workmanship defects will cease upon expiry of the applicable warranty period and be subject to clause 8.8 through 8.10 (inclusive), including (where applicable) clause 8.7(c). To make a claim under either warranty, you must notify us in writing as soon as practicable following identification of the relevant defect, and in any case within the applicable warranty period, including reasonable details and all available evidence and other information in relation thereto. For leak detection services, any remedy is limited to the repair of the identified leak. Otherwise, our obligation under this warranty is limited, at our option, to:

(a) remedying the defect;

(b) making a payment equal to the reasonable cost of remedying the defect based on our estimate of the cost to do so; or

(c) a combination of both 8.5(a) and 8.5(b).

The warranties in this clause 8.5 does not cover:

(d) fair wear and tear or cosmetic deterioration;

(e) use of the pool or system for any purpose other than normal residential use, unless we have agreed in writing the terms of extension of the warranty to commercial usage with the Customer;

(f) defects resulting from misuse, wilful damage, unauthorised repair, alteration, failure of components not supplied or serviced by us, or failure to follow instructions or maintenance guidelines (including those caused by water chemistry imbalance (e.g. incorrect pH, chlorine, or calcium levels), scaling, or corrosion due to improper chemical use or failure to maintain water quality);

(g) matters outside our control, including issues caused by third parties or by ground movement, soul conditions or subsidence or extreme weather or natural disasters (e.g. earthquakes, storms, flooding);

(h) delays or failure to notify us of the defect within the applicable warranty period.

If we carry out any remedial work under this warranty, the original warranty period continues to apply to that work (no new period is triggered). The warranties in this clause 8.5 may not be transferred or assigned without our express written consent. The parties shall resolve any dispute as to resolution thereof in accordance with clause 14 of these Terms.

8.6 Except as may be provided for under the Consumer Guarantees Act 1993 (where the Customer obtains Services for personal or household use) or any other law that cannot be excluded, where we provide any express written warranty in these Terms or one is otherwise provided to the Customer in respect of the Services, we provide no other warranty, expressed or implied, including any implied warranty of merchantability or fitness for purpose or otherwise and any warranties expressed or implied by law or statute, in respect of Services whether in respect of quality, fitness for intended purposes or otherwise, and all such warranties are excluded to the fullest extent (but only to the extent) that applicable law permits exclusion.

Generally

8.7 Subject to the Consumer Guarantees Act 1993 (where it applies), you agree that we are not in any case whatsoever liable for:

(a) Any special, incidental, indirect, punitive or consequential Damages;

(b) loss of profit, revenue, goodwill, use or the costs of procuring substitute Goods and/or Services;

(c) Damages, in the aggregate, exceeding the value of the payments actually received by us from the Customer for the Goods or Services in the preceding twelve (12) months; or

(d) Damages in respect of any claim made:

(i) more than 120 working days from the date the Customer becomes aware of the circumstances leading to a claim; or

(ii) more than 250 working days after the relevant cause of action arise.

8.8 In accordance with section 5D of the Fair Trading Act 1986, where you are a business and the Good or Services are provided in trade, Customer agrees that it does not rely on any representations or other conduct by us either before or during the provision of the Goods or Services and that accordingly sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 will not apply.

8.9 In the event of any claim whatsoever, Customer must exclusively permit us or our nominee first opportunity to remedy or make good any defects and shall not permit any other third party to do so.

9. RETENTION OF TITLE

9.1 Title in Goods passes to Customer when the Customer has made payment in full for all outstanding indebtedness to us.

9.2 Until title passes in accordance with clause 9.1:

(a) Customer shall be deemed to be in fiduciary capacity as our bailee in respect of any Goods supplied by us; and

(b) Customer shall store the Goods in such condition and place that it is clear that they are owned by us; and

(c) Customer shall not under any circumstances mix the Goods supplied by us with other goods in any manner whatsoever; and

(d) The Customer shall on request disclose to us all relevant information regarding the Goods.

9.3 If Customer fails to pay any amount of the Customer’s total indebtedness to us under these Terms when it is due or where Customer is otherwise in breach of these Terms then without notice and without prejudice to any of our other rights and remedies, we may recover and/or re-sell our Goods that have been delivered to the Customer and the Customer irrevocably grants us, our agents and servants leave and licence at all reasonable times to enter on and into the Property and any other property occupied by the Customer, without notice in order to inspect, search for and recover Goods supplied (if necessary, dismantling them from any pool and spa systems) and we shall not be liable to the Customer or any third party for the exercise of its rights under this clause.

9.4 Where we lawfully resell, store or repossesses any Goods the Customer shall indemnify us for all resulting Damages (including without limitation losses on resale).

10. PERSONAL PROPERTY SECURITIES ACT 1999

10.1 Customer grants to us a specific security interest in the Goods and the proceeds of the Goods and the Customer, being a purchase money security interest.

10.2 Customer will not enter into any security agreement that permits any other person to register any security interest in respect of the Goods or the proceeds.

10.3 Customer undertakes to:

(a) Sign any further documents and or provide any further information (which information Customer warrants to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the PPSR and ensure that our security interest is a perfected security interest; and

(b) Not register a financing change statement or a change demand in respect of Goods (as those terms are defined in the PPSA) without our prior written consent; and

(c) Give us not less than ten (10) working days prior notice of any proposed change in the Customer’s name and or any other change in the Customer’s details (including, but not limited to, changes in the Customer’s address, email address, trading name or business practice).

10.4 Further:

(a) Unless we agreed otherwise in writing, you waive your rights to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.

(b) To the maximum extent permitted by law, you waive your rights and, with our agreement, contract out of your rights under the sections referred to in section 107(2)(c) to (i) of the PPSA.
(c) You agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with our agreement, contract out of such sections.

(d) You and we agree that section 109(1) of the PPSA is contracted out of in respect of particular Goods if and only for as long as we are not the secured party with priority over all other secured parties in respect of those Goods.

10.5 For the purpose of this clause, the expressions “proceeds”, “purchase money security interest”, “security agreement”, “security interest”, “perfected security interest”, “verification statement” and “financing change statement” have the meanings given to them under, or in the context of the PPSA.

11. CANCELLATION

11.1 If for any reason we consider that Customer may be unable to meet its payment obligations as they fall due, we shall be entitled to take (in addition to any other remedies we may have) all or any of the following actions until those obligations are fully satisfied:

(a) Demand immediate payment of part or all of amounts for supplies made whether due or not; and

(b) Require security for such amounts to our full satisfaction before any further supplies are made to the Customer; and

(c) Withhold without notice deliveries of Goods ordered by Customer; and

(d) Suspend and cease supply of any Services to Customer without notice.

11.2 We shall be entitled to cancel all or any part of any contract or contracts with Customer, in addition to our other remedies (including our right to recover all sums owing to us for supplies already made), in the following circumstances:

(a) If any amounts payable to us by you are overdue; or

(b) If you fail to meet any obligation under these Terms or any other contract or obligation to us; or

(c) If you fail to meet reasonable credit or financial requirements established by us, including any limitations on allowable credit; or

(d) If you become bankrupt or insolvent; or

(e) If a receiver is appointed in respect of your assets; or

(f) If (where applicable) you no longer carry on business or threaten to cease to carry on business; or

(g) If an arrangement with your creditors is made or likely to be made; or

(h) If Customer’s ownership or effective control is transferred or the nature of the Customer’s business is materially altered; or

(i) If Customer makes default in taking delivery in time,

AND we will not be liable for any Damages suffered by Customer arising from such cancellation and we will be entitled to dispose of the balance of the Goods contracted for and Customer will indemnify us for any loss in price incurred by us on realisation against the price at which the Goods were contracted to be bought by Customer.

11.3 Any such cancellation, refusal or delay by us does not constitute a termination of any agreement with Customer (unless we so advise Customer) and does not constitute a breach of any such agreement or these Terms by us.

12. INDEMNITY

12.1 Customer indemnifies us from and against all Damages we or our directors, principals, employees, contractors or agents sustain or incur (directly or indirectly) arising out of or resulting from:

(a) Any breach of these Terms by Customer;

(b) Any contravention of applicable laws or regulations by Customer;

(c) Any claim by any third party arising from any act or omission of Customer in connection with these Terms (whether negligent or not), including and misrepresentations, warranty or agreement made by the Customer;

(d) Without limiting clause (b), any negligent, wilful, reckless or unlawful act or omission of, or any intentional misconduct by Customer in connection with these Terms; or

(e) Any claim by Customer, to the extent that such claim is beyond the scope of our liability to Customer under these Terms.

13. CONSTRUCTION CONTRACTS ACT 2002

13.1 In addition to our rights under these Terms, we will be entitled to exercise all or any powers available to us under the Construction Contracts Act 2002 including suspension of work, adjudication and seeking charging orders.

13.2 As part of or in addition to any invoice we may serve a payment claim on Customer for any claimed amount.

13.3 Where we submit a payment claim the Customer may respond to the payment claim by providing a payment schedule within twenty (20) days of the date of receipt of the payment claim but without prejudice to our right to refer the dispute (or any part of the payment claim) to adjudication.

13.4 If Customer does not respond to a payment claim in accordance with clause 13.3, Customer becomes liable to pay the payment claim.

13.5 Unless otherwise agreed, where we serve a payment claim, Customer will pay the amount it becomes liable to pay under this clause within 20 days of the date of the payment claim.

13.6 In this clause 13 where used the following terms shall have the meanings ascribed to them in the Construction Contracts Act 2002; “claimed amount”, “payment claim” and “payment schedule”.

14. DISPUTE RESOLUTION

14.1 Subject to their rights under the Construction Contracts Act 2002, we or you may give the other notice of any dispute arising in respect of, or in connection with, these Terms (“Dispute”).

14.2 In the event of a notice being given pursuant to clause 14.1 above, then the parties must:

(a) Discuss the Dispute and make a genuine effort to resolve the Dispute;

(b) If no resolution of the Dispute has occurred within fourteen (14) days from the date of the giving of the notice in accordance with clause 16.1 above, either party may pursue their remedies as they see fit.

14.3 Nothing in this clause shall prevent either making an application to a court for an injunction or other interlocutory relief, or to recover a debt due.

15. CUSTOMER OBLIGATIONS

15.1 Customer agrees to:

(a) Ensure that we have free, unimpeded, and timely access to the Property for the purpose of supplying the Goods and/or performing the Services, and warrant that you have the necessary authority to permit such access and works;

(b) Ensure, to our reasonable satisfaction, that the Property (including access ways and work areas) is maintained in a clean, clear, and safe condition, complies with all applicable laws, regulations, and bylaws, and is free of debris or hazards that may interfere with the supply of Goods and/or Services (unless we otherwise agree in writing);

(c) Not cause or allow any delay, obstruction, or disruption to our personnel, equipment, or performance of the Goods and/or Services, and to follow all reasonable directions given by us in relation to such Goods and/or Services;

(d) Where Goods and/or Services supplies require co-ordination with other suppliers then the Customer is entirely responsible to supply us with a schedule (and all necessary updates thereto) detailing all relevant information so as to allow us sufficient time to co-ordinate with the Client’s other suppliers.

16. INTELLECTUAL PROPERTY

16.1 The Customer acknowledges and agrees that we or our suppliers have copyright in our Intellectual Property in terms of the Copyright Act 1994 and agrees to comply with all terms and conditions relating thereto as may be posted on our Website or otherwise notified to the Customer from time to time.

17. MISCELLANEOUS

17.1 Assignment
Customer may not assign all or any of its rights or obligations under these Terms. We may assign, transfer, novate, license or sub-contract all or any part of our rights and obligations under these Terms at any time and without your consent. Customer accepts it does not have authority to instruct any subcontractor without our prior written consent.

17.2 Non-waiver
Failure or delay to enforce any of these Terms shall not be deemed to be a waiver of any of the rights we have under these Terms. To be effective, any waiver of any or all of the terms and conditions in any agreement between us must be in writing.

17.3 Force Majeure
Neither party shall be liable for any breach or failure or delay to perform its obligations where the breach or failure or delay is occasioned by any cause or causes beyond its reasonable control (including but not limited to) strikes or lockouts, civil commotion, hostilities, changes in program, conflicting works with other trades, independent third-party inspections, supply delays (including of exotic product due to short notice), acts of God (including severe weather events), viral outbreaks, government mandated lockdowns, epidemics or pandemics. However, this clause does not excuse a party from any obligation to make a payment when due under these Terms.

17.4 Jurisdiction
These Terms are governed by the law of New Zealand and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.

17.5 Enforceability and severance
If any part or provision of these Terms is deemed to be invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. If a replacement is not possible, the part or provision must be treated for all purposes as severed from these terms and conditions. In either case, the remaining parts and provisions of these Terms will be binding on the parties.

17.6 Non disparagement
Other than in accordance with law Customer shall not make any statement or undertake or perform any act or omission which brings or is reasonably likely to bring us or any of our personnel into disrepute, and without limitation, where Customer is not an individual, it shall not cause or allow any of its personnel to engage in any activity, conduct or otherwise that shall or may prejudicially affect our reputation or goodwill or our business.

17.7 Interpretation
In these Terms the words “including” and similar words do not imply any limit. Words importing the plural include the singular and vice versa. References in these terms to money are to New Zealand dollars. Nothing in these Terms is to be interpreted against us on the ground that we put forward these Terms or any part of them. Any covenant or agreement on the part of two or more persons binds those persons jointly and severally. References to statutory provisions include references to all regulations, orders, rules or notices made under that statute and references to a statute or regulation will be construed as references to those statutes or regulations as they may be amended or re-enacted or as their application is modified by other provisions from time to time.