In the Agreement:
1.1 “Agreement” means these terms and conditions, together with the Order and any other documents expressed to be supplemental to the agreement formed upon PSP’s acceptance of an Order placed by the Buyer. In the event of any conflict between the documents comprising the Agreement, these terms and conditions shall prevail to the extent necessary to resolve the conflict. 1.2 “Buyer” means the Person placing an Order for the Goods from PSP as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Buyer, is a reference to each Buyer jointly and severally; and
(b) if the Buyer is a part of a trust, the Buyer shall be bound in their capacity as a trustee; and
(c) includes the Buyer’s agents, executors, administrators, successors and permitted assigns.
1.3 “Guarantor” means the person(s) named as guarantor in the Credit Account Application.
1.4 “Goods” means any and all goods supplied by PSP to the Buyer under the Agreement.
1.5 “Intellectual Property” means patentable material, patents, copyright, trade marks (including names, labels, get-up, logos, patterns or other identifying marks), designs, rights in software and designs, and any other right granted by operation of law which confers protection on any written or artistic work created by intellectual effort (including, without limitation, rights in graphics, text, processes, music, videos, sounds, pictures, compilations, templates, page layout, digital conversion or other materials) and all associated intangible assets created as a by-product (including, without limitation, brands, trade names, services, methods, techniques, configurations, know-how, confidential information, methods, concepts and ideas);
1.6 “Order(s)” means any request by the Buyer for Goods accepted by PSP.
1.7 “Person” means and includes any natural person, company, corporation, firm, partnership, joint venture, society, organisation or other group or association of persons (whether incorporated or not), trust, state or agency of state, statutory or regulatory body, local authority, government or governmental or semi-governmental body or agency (in each case whether or not having separate legal personality).
1.8 “Personal Information” means information about an identifiable Person including but not limited to a Person’s name, address, date of birth, occupation, driver’s license details, email address, previous credit applications, and credit history.
1.9 “Price” means the amount (in New Zealand Dollars) payable by the Buyer to PSP for the Goods (plus Goods and Services Tax (“GST”) and any shipping, delivery and handling costs, where applicable).
1.10 “PSP” means PSP Limited, its successors and assigns or any Person acting on behalf of and with the authority of PSP Limited.
1.11 “Working Days” means days other than Saturday, Sunday, public holidays in New Zealand, or dates between 23 December – 6 January (inclusive).
2.1 The Buyer is deemed to have accepted and is immediately bound, by the Agreement when the Buyer places an Order for Goods. Any attempt to introduce any further contents of the Agreement shall be ineffective, unless expressly agreed in writing by PSP when accepting the Order.
3. Change in Control
3.1 The Buyer shall give PSP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Buyer or any other change in the Buyer’s details (including but not limited to, changes in the Buyer’s name, address, phone number(s), change of trustees or business practice). The Buyer shall be liable for any loss incurred by PSP as a result of the Buyer’s failure to comply with this clause.
4. Price and Payment
4.1 Unless otherwise agreed, the Buyer shall pay PSP the Price in full and without set off or deduction by following the payment instructions provided by PSP.
4.2 The Buyer acknowledges that any supply of Goods on credit shall not take effect until the Buyer has completed a Credit Account Application form with PSP and it has been approved with a credit limit established for the Buyer’s account. PSP shall reserve the right to require a personal guarantee as part of the credit application process.
4.3 In the event that an Order exceeds the Buyer’s credit limit or payment of PSP’s invoice is overdue, PSP reserves the right to refuse that Order or delivery of the Goods or request an alternative payment method.
4.4 All quotations (subject to clause 4.5) shall be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.5 The Price is subject to reasonable upward adjustment:
(a) if a variation to the Order is requested by the Buyer; or
(b) the cost of materials, transport, labour, customs or other duties, taxes, insurance, exchange rates and any other factors affecting the cost of the Goods increases due to circumstances beyond PSP’s control between the date the Buyer places an Order and the date the Goods are available.
4.6 Variations to Orders will be detailed in writing and shown as variations on PSP’s invoice.
4.7 At PSP’s sole discretion a non-refundable deposit (in part payment of the Price) may be required from the Buyer.
4.8 The Price will be payable by the Buyer on the date/s notified by PSP, which may be: (a) on placement of an Order;
(b) on delivery of the Goods;
(c) by way of instalment payments in accordance with PSP’s payment schedule;
(d) for certain approved Buyers, twenty (20) days following the end of the month in which the invoice is sent to the Buyer;
(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 Buyer by PSP.
4.9 Payment of PSP’s invoice may be made by cash, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed between the Buyer and PSP.
4.10 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by PSP or withhold payment of any invoice because part of that invoice is in dispute.
4.11 The Buyer may not reduce or withhold payment to PSP because a third party involved has not carried out their obligations to the Buyer.
4.12 The Price and any other money payable in accordance with the Agreement shall be in $NZD. 4.13 The Buyer must pay GST and any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. If the Buyer is accepting a delivery outside of New Zealand, the Buyer acknowledges and accepts that its Order may be subject to local taxes, duties or levies. PSP is not responsible for any local taxes, duties or levies payable on the Buyer’s Order, which shall be at the Buyer’s cost.
5.1 Delivery of the Goods is taken to occur at the time that:
(a) the Buyer (or the Buyer’s nominated carrier) is notified that the Goods are available for collection from PSP’s premises; or
(b) PSP (or PSP’s nominated carrier) delivers the Goods to the Buyer’s nominated address even if the Buyer is not present at the address or otherwise fails to accept the Goods.
5.2 Any time specified by PSP for delivery of the Goods is an estimate only. PSP shall use all reasonable endeavours to meet any times for delivery (if stated), although delivery may depend on external factors beyond the control of PSP. Delivery times therefore cannot be guaranteed and shall not be a representation or condition of the Agreement. PSP shall not be liable for any delays in delivery.
5.3 The Buyer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. PSP will not be liable for any loss or damage incurred by the Buyer as a result of delivery being delayed, and any delay in delivery shall not entitle the Buyer to terminate an Order or claim remedies. In the event that the Buyer is unable to take delivery of the Goods as arranged then PSP shall be entitled to charge a reasonable fee for redelivery and/or for holding the Goods and any related materials pending redelivery or collection.
5.4 PSP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the Agreement.
6.1 Risk of damage to or loss of the Goods passes to the Buyer once delivery occurs and the Buyer must insure the Goods on or before delivery. The Buyer will be fully responsible for any loss of or damage to the Goods following delivery however caused.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, PSP is entitled to receive all insurance proceeds payable for the Goods. The production of the Agreement by PSP is sufficient evidence of PSP’s rights to receive the insurance proceeds without the need for any Person dealing with PSP to make further enquiries.
6.3 If the Buyer requests PSP to leave Goods outside PSP’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer’s sole risk.
6.4 The Buyer acknowledges that PSP may be required, in the course of providing the Goods, to make assessments based on information supplied either by the Buyer, or compiled by others. PSP will rely on and not verify its accuracy and completeness. The Buyer agrees that PSP will not be liable for any loss or damage the Buyer or any other person sustains, directly or indirectly, in connection with PSP’s reliance on that information. The Buyer acknowledges and agrees that in the event that any of the information provided by the Buyer is inaccurate, the Buyer shall indemnify and keep indemnified PSP against any loss, damages, expenses or costs however resulting from these inaccurate plans, specifications or other information.
6.5 The Buyer must not make any representations or warranties to its customers concerning the Goods that are inconsistent with or additional to those made or approved in writing by PSP.
6.6 The Buyer warrants that any structures to which the Goods are to be affixed are able to withstand the installation of the Goods and are of suitable capacity to handle the Goods once installed.
6.7 The Buyer acknowledges that Goods supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching; and
(e) become damaged or otherwise malfunction as a result of any misuse or usage that is not in accordance with any instructions for the Goods contained in any user/manufacturer guide, manual or other directions.
7. Product Specifications
7.1 The Buyer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in PSP’s or manufacturer’s fact sheets, price lists , advertising material or other material, are approximate only and are given by way of indication only. The Buyer 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 Agreement, unless expressly stated as such in writing by PSP.
7.2 Notwithstanding that PSP may have supplied plans, specifications, illustrations, drawings, data, dimensions, ratings, weights, guidelines, instructions, policies, procedures and directions in respect of the Goods, the Buyer recognises that PSP has no control over how the Goods are used by the Buyer, and the Buyer acknowledges and affirms that:
(a) It is solely responsible for making decisions about the use, suitability or attributes of the Goods; (b) It has made its own independent investigation, analysis and evaluation of the Goods, and affirms, that in making the decision to purchase and use the Goods, it has relied solely upon its independent evaluation and those of its representatives, including professional, technical and other advisers;
(c) It has had the opportunity to examine the Goods, seek independent advice in relation to them, to conduct a full evaluation in relation to the Goods and to obtain information in respect of those matters that it considers relevant, and that it has knowledge and experience in building construction, glazing, signage, display and other related matters and is therefore capable of evaluating the merits and potential uses of the Goods; and
(d) PSP shall not be liable in respect of any liabilities, costs, claims, loss, damages or demands (including negligence) which may be suffered by the Buyer whatsoever, whether suffered itself or as a result of claims against it by a third party or otherwise, arising from or related to the use of the Goods.
8. Compliance with Laws
8.1 The Buyer and PSP shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods.
8.2 The Buyer shall obtain (at the expense of the Buyer) all permissions, consents, licenses and approvals that may be required for the Goods.
9.1 PSP and the Buyer agree that title and ownership of the Goods shall remain the sole property of PSP and shall not pass to the Buyer until:
(a) the Buyer has paid PSP all amounts owing to PSP in full; and
(b) the Buyer has met all of its other obligations to PSP.
9.2 Receipt by PSP 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.
9.3 It is further agreed that until ownership of the Goods passes to the Buyer in accordance with clause 9.1:
(a) the Buyer is only a bailee of the Goods and must return the Goods to PSP on request;
(b) the Buyer holds the benefit of the Buyer’s insurance of the Goods on trust for PSP and must pay to PSP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed; (c) the Buyer 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 Buyer sells, disposes or parts with possession of the Goods then the Buyer is doing so as PSP for and on behalf of PSP and must hold the proceeds of any such act on trust for PSP and must pay or deliver the proceeds to PSP on demand;
(d) The Buyer is selling, disposing or otherwise parting with possession of the Goods as an agent of PSP and shall not represent to any other Person that it is acting for PSP and PSP will not be bound by any contract with any other Person to which the Buyer is a party;
(e) the Buyer should not convert or process the Goods or intermix them with other goods but if the Buyer does so then the Buyer holds the resulting product on trust for the benefit of PSP and must sell, dispose of or return the resulting product to PSP as it so directs;
(f) the Buyer irrevocably authorises PSP, its agent and contractors without notice to enter any premises occupied by the Buyer where PSP believes the Goods are kept to recover possession of the Goods without in any way being liable to the Buyer or any Person claiming through the Buyer. If the Goods or any part of the Goods is wholly or partially attached to other goods PSP may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the Goods. PSP shall not be liable for any damage or loss to the premises or other property which may arise as a result of such entry and recovery of the Goods;
(g) PSP may recover possession of any Goods in transit whether or not the Goods have been delivered;
(h) PSP may sell, lease or otherwise dispose of the Goods;
(i) the Buyer shall not charge or grant an encumbrance over the Goods nor grant or otherwise give away any interest in the Goods while they remain the property of PSP; and
(j) PSP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Buyer.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 The Buyer acknowledges and agrees that:
(a) the Agreement constitutes a security agreement for the purposes of the PPSA; and
(b) the Buyer grants to PSP a security interest (for the purposes of the PPSA) in all Goods that have been supplied and that will be supplied in the future by PSP to the Buyer.
10.2 The Buyer undertakes to:
(a) sign any further documents or provide any further information (such information to be complete, accurate and up ¬to-date in all respects) which PSP may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, PSP 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 in favour of a third party without the prior written consent of PSP; and
(d) where applicable, immediately advise PSP 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.
10.3 PSP and the Buyer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to the Agreement.
10.4 The Buyer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
10.5 Unless otherwise agreed to in writing by PSP, the Buyer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Buyer shall unconditionally ratify any actions taken by PSP under clauses 10.1 to 10.5.
11. Security and Charge
11.1 In consideration of PSP agreeing to supply the Goods, the Buyer charges all of its rights, title and interest (whether joint or several) in any assets capable of being charged, or owned by the Buyer either now or in the future, to secure the performance by the Buyer of its obligations under the Agreement (including, but not limited to, the payment of any money).
11.2 The Buyer indemnifies PSP from and against all PSP’s costs and disbursements including legal costs on a solicitor and client basis incurred in exercising PSP’s rights under clauses 9-11. 11.3 The Buyer irrevocably appoints PSP and each director of PSP as the Buyer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of clauses 9-11, including, but not limited to, signing any document on the Buyer’s behalf.
12. Defective Goods
12.1 The Buyer must inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify PSP of any alleged defect in the Goods. The Buyer shall return any defective Goods to the Buyer to afford PSP an opportunity to inspect the Goods alleged to be defective. All shipping, delivery and handling charges for the return shall be at the Buyer’s cost. The Goods must be returned in the condition in which they were delivered and with all packaging material, brochures and instruction material and in as new a condition as is reasonably possible in the circumstances. If the Buyer fails to comply with these steps, the Goods shall be deemed to be free from any defect.
12.2 For defective Goods, which PSP has agreed in writing that the Buyer is entitled to reject, PSP’s entire liability and the Buyer’s exclusive remedy is limited to either (at PSP’s discretion):
(a) replacing the Goods with goods either of identical type or similar;
(b) repairing the Goods; or
(c) refunding the price paid for the defective portion of the Goods.
12.3 Notwithstanding anything else in the Agreement, the remedies set out in clause 12.2 above will not be provided:
(a) where the Goods have been damaged during delivery or modified or tampered with by a Person other than PSP;
(b) where the Goods have not been stored or used in a proper manner; or
(c) where clause 16.4 applies (PSP shall provide assistance as described in clause 16.4).
13. Intellectual Property
13.1 The supply of Goods will not operate so as to transfer or vest in the Buyer any trade mark, patent, copyright or other Intellectual Property. All Intellectual Property rights in respect of the Goods provided by PSP remain PSP’s or the applicable manufacturer’s property and the Buyer may not use, reverse engineer, interfere with or alter the Intellectual Property in any way.
13.2 Where PSP has designed, drawn or developed Goods for the Buyer, then the copyright in any designs and drawings and documents shall remain the property of PSP. Under no circumstances may such designs, drawings and documents be used without the express written approval of PSP. 13.3 The Buyer warrants that all designs, specifications or instructions given to PSP will not cause PSP to infringe any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify PSP against any action taken by a third party against PSP in respect of any such infringement.
13.4 The Buyer agrees that PSP may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which PSP has created for the Buyer.
14. Default and Consequences of Default
14.1 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 PSP’s sole discretion such interest shall compound monthly at such a rate).
14.2 If the Buyer owes PSP any money the Buyer shall indemnify PSP from and against all costs and disbursements incurred by PSP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and client basis, PSP’s collection agency costs, and bank dishonour fees).
14.3 Further to any other rights or remedies PSP may have under the Agreement, if a Buyer has made payment to PSP, and the transaction is subsequently reversed, the Buyer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by PSP where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Buyer’s obligations under the Agreement.
14.4 Without prejudice to PSP’s other remedies at law, PSP shall be entitled to cancel all or any part of any Order and/or immediately suspend the provision of Goods to the Buyer if:
(a) any money payable to PSP becomes overdue, or in PSP’s opinion the Buyer will be unable to make a payment when it falls due;
(b) the Buyer has exceeded any applicable credit limit provided by PSP;
(c) the Buyer 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 Buyer or any asset of the Buyer.
14.5 If the provision of Goods are cancelled or suspended, PSP shall not be obliged to resume the provision of Goods until the amount owing, and any costs incurred in relation to the cancellation or suspension, are paid in full and PSP has adequate security for future payments. PSP will not be liable to the Buyer or any Person for losses arising from the cancellation or suspension of the Goods under this clause 14. Nothing in this clause prejudices or otherwise affects PSP’s rights under clause 15 (Cancellation of Orders).
15. Cancellation of Orders
15.1 PSP may cancel any Order at any time before the Goods are delivered to the Buyer by giving written notice to the Buyer. On giving such notice PSP shall repay to the Buyer any money paid by the Buyer for the Goods. PSP shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Buyer cancels an Order, the Buyer shall be liable for any and all loss incurred (whether direct or indirect) by PSP as a direct result of the cancellation (including, but not limited to, any cost of Goods or loss of profits).
15.3 Orders for non-stocklist items cannot be cancelled by the Buyer, once that Order has been accepted by PSP.
15.4 Cancellation will not affect any rights of PSP which accrue up to and including the date of cancellation. Clause 19 (Confidentiality) and this clause will continue in full force and effect following termination of the Agreement, together with clauses 6,13,14.1,16,17,22.1,22.2,22.4,22.5,22.10 and 22.11.
16. Warranties and Liability
16.1 To the maximum extent permitted by law all guarantees, warranties (statutory, express or implied, including, without limitation, any implied warranties of quality or fitness, merchantability or fitness for a particular purpose) or other provisions that would otherwise be implied by statute or rule of law, are expressly excluded, as are any representations or statements made prior to the Agreement (except if expressly recorded in the Agreement).
16.2 Without limiting clause 16.1, any advice, recommendation, information, or assistance provided by PSP in relation to the Goods supplied is given in good faith, is based on PSP’s own knowledge and experience and shall be accepted by the Buyer without liability on the part of PSP and it shall be the responsibility of the Buyer to confirm the accuracy and reliability of the same taking into account the use to which the Buyer makes or intends to make of the Goods.
16.3 If the Buyer is acquiring Goods for business purposes, the Buyer acknowledges that its rights are subject to the Agreement only and all guarantees, warranties, rights or remedies implied by the Consumer Guarantees Act 1993, sections 9, 12A and 13 of the Fair Trading Act 1986, or any similar statutes are expressly excluded to the maximum extent permitted by law.
16.4 To the maximum extent permitted by law, any Goods not manufactured by PSP are subject only to the warranty (if any) given by the manufacturers of the Goods. Unless otherwise expressly agreed in writing, PSP does not provide any warranties for Goods not manufactured by PSP, and the Buyer acknowledges and agrees that it relies solely on the warranty provided by the manufacturer of the Goods (if any), and the manufacturer’s standard warranty terms will apply. PSP shall provide all reasonable assistance with any Buyer warranty claims arising out of Goods not manufactured by PSP, provided however that the Buyer shall be solely responsible for compliance with the manufacturer’s warranty registration and claims processes.
16.5 The Buyer acknowledges and agrees that PSP may receive commissions for, and apply margins on, Goods not manufactured by PSP. 16.6 PSP shall not be liable for any deterioration, destruction or other damage to Goods, or any property damage, personal injury or other harm, arising in connection with improper storage or handling of the Goods following delivery.
16.7 No claim arising out of the Agreement (regardless of form) may be brought by the Buyer more than 12 months after the event that gave rise to that right of claim.
16.8 Except as expressly stated in the Agreement or otherwise required by law, the liability of PSP, whether in contract, tort (including negligence), equity, statute or otherwise, in respect of all claims for loss, damage, expenses or injury arising under or in connection with the Agreement, the Goods or from any negligence, misrepresentation or other act or omission on the part of PSP, its representatives, agents or sub-contractors shall not in aggregate exceed the fees payable for the Goods or $5,000, whichever is the lesser amount.
16.9 PSP will not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind arising under or in connection with the Agreement, the Goods or from any negligence, misrepresentation or other act or omission on the part of PSP, its representatives, agents or sub-contractors, even if PSP is advised of the possibility of such damages.
17. Buyer’s Liability and Indemnity
17.1 The Buyer agrees to release, indemnify and keep PSP, its officers, subsidiaries, affiliates, successors, assigns, directors, officers, agents, service providers and employees indemnified from and against all actions, damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgments, costs and expenses of any kind whatsoever (including, without limitation, legal fees, services costs and costs of recovering unpaid amounts) suffered or incurred by any Person arising out of or in any way in connection with:
(a) the Buyer’s failure to comply with or breach of the Agreement;
(b) non-payment of debts when they become due or any action taken by PSP as a result;
(c) infringement of Intellectual Property or other proprietary rights in the Goods;
(d) recovery of any amounts owed by the Buyer;
(e) the Buyer’s use of the Goods; and
(f) any instruction or information provided by the Buyer to PSP in connection with the Goods.
18. Privacy and Data Protection
18.1 PSP acknowledges its obligations in relation to the handling, use, disclosure and processing of Personal Information and shall take all practical steps to achieve privacy protection and compliance with the Privacy Act 2020 (“the Act”).
18.2 In order for PSP to process an Order and provide the Goods, it may collect certain Personal Information about the Buyer or the Guarantor (as applicable) (each an “Individual”).
18.3 The Individual irrevocably authorises:
(a) PSP to collect, retain and use such Personal Information as PSP may necessarily require for the purposes of:
(i) carrying out credit checks, (including any overdue fines balance information held by the Ministry of Justice) assessing the Buyer’s credit worthiness or responding to any credit enquiry about the Buyer;
(ii) processing, creating and otherwise administering an account, including any application;
(iii) supplying Goods to the Buyer;
(iv) dealing with requests, enquiries or complaints and other Buyer care related activities and all other general administrative and business purposes;
(v) marketing any products or services to the Buyer and carrying out market and product analysis and research;
(vi) enforcing PSP’s rights under the Agreement;
(vii) carrying out any activity in connection with any legal, governmental or regulatory requirements that PSP is subject to or in connection with legal proceedings, crime or fraud prevention, detection or prosecution; and
(viii) any other purpose as consented to by the Individual in writing from time to time (collectively, (i) –(viii) referred to as the “Purposes”).
(b) any Person to provide PSP such information as PSP may necessarily require about that Individual for the Purposes;
(c) PSP to disclose Personal information as necessarily required for the Purposes, or as otherwise authorised by that Individual, including to:
(i) third parties who provide products or services related to the Goods that PSP provides, such as dealers and agents;
(ii) credit reference agencies;
(iii) third parties to whom PSP may be required to disclose information by reason of legal, governmental or regulatory authority or where PSP believes in good faith that disclosure is necessary to protect or enforce PSP’s rights or the rights, property or safety of others;
(iv) 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 Buyer;
(v) trusted third parties to provide services or perform functions on PSP’s behalf; and
(vi) to any other third party where that Individual has given its express consent for PSP to do so. 18.4 In addition to clause 18.3, PSP shall be entitled to collect, use and disclose Personal Information in accordance with any applicable New Zealand privacy legislation.
18.5 Under data protection law, the Individual has rights regarding the Individual’s Personal Information that PSP holds / collects. The rights available to the Individual depend on PSP’s reason for processing the Personal Information. These rights include:
(a) Right of access: the Individual has the right to ask PSP for copies of the Individual’s Personal Information. This right always applies.
(b) Right to rectification: the Individual has the right to ask PSP to update or rectify Personal Information the Individual thinks is inaccurate. The Individual also has the right to ask PSP to complete Personal Information that the Individual thinks is incomplete.
(c) Right to erasure: the Individual has the right to ask PSP to erase the Individual’s Personal Information in certain circumstances.
(d) Right to restriction of processing: the Individual has the right to ask PSP to restrict or cease the processing of the Individual’s Personal Information in certain circumstances.
(e) Right to data portability: the Individual has the right to ask that PSP transfer the Personal Information the Individual has given PSP from one organisation to another, or give it to the Individual. This right only applies if PSP is processing Personal Information based on the Individual’s consent, or under (or in talks about entering into) a contract and the processing is automated.
18.6 All requests should be sent to PSP at email@example.com. Alternatively, the Individual can write to PSP at 320 Rosedale Road, Albany, Auckland 0632, New Zealand.
18.7 PSP will maintain reasonable security safeguards to protect an Individual’s Personal Information and take reasonable steps to ensure that Individual’s Personal Information is not disclosed to an unauthorised person or entity.
18.8 The provision of the Goods do however require use of the internet, and the internet is not itself a secure environment. PSP therefore cannot give an absolute assurance or guarantee that the Individual’s Personal Information will be secure at all times. Transmission of information over the internet or third-party networks is at the Individual’s own risk. PSP will notify the Individual at the first reasonable opportunity if it discovers or is advised of a material security breach which has resulted in unauthorised access, disclosure or loss of the Individual’s Personal Information. 18.9 PSP will retain an Individual’s Personal Information for so long as is reasonably necessary to fulfil the Purposes for which it was collected, including for the purposes of satisfying any legal, regulatory, tax or accounting requirements). Unless there is a legal requirement or justification for PSP to keep the Individual’s Personal Information, PSP will retain it for no longer than is necessary: (a) To provide the Goods;
(b) As part of PSP’s usual business record-keeping practices;
(c) To fulfil the purpose(s) for which the Personal Information was originally collected;
(d) In accordance with PSP’s internal retention policies and practices; or
(e) For any other purpose(s) authorised by the Individual.
18.10 Once Personal Information is no longer required, the Personal Information will be deleted, securely destroyed or anonymized.
18.11 The Individual can always choose not to provide PSP with Personal Information, however this may mean that PSP is unable to supply the Goods effectively, or at all. PSP will process requests as soon as reasonably practicable, provided PSP is not otherwise prevented from doing so by law. If PSP is unable to comply with the request, it will give the Individual reasons for this decision when it responds.
19.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially (except for information lawfully in the public domain, disclosure to professional advisors, or information requests received from relevant authorities) and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
20. Service of Notices
20.1 Notices given pursuant to the Agreement shall be deemed to have been given and received: (a) in the case of personal delivery, when delivered;
(b) in the case of a letter, on the seventh Working Day after posting to the last known address of the recipient; and
(c) in the case of emails, upon delivery to the recipient’s last known email address provided that no notification of failed delivery has been received by the sender, and provided that any notice given after 5:00pm or on a day which is not a Working Day shall be deemed to be given at 9:00am on the next Working Day.
21.1 If the Buyer at any time upon or subsequent to entering into the Agreement is acting in the capacity of trustee of any trust (“Trust”) then whether or not PSP may have notice of the Trust, the Buyer covenants with PSP as follows:
(a) the Agreement extends to all rights of indemnity which the Buyer now or subsequently may have against the Trust and the trust fund; and
(b) the Buyer has full and complete power and authority under the Trust to enter into the Agreement and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Buyer against the Trust or the trust fund. The Buyer 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.
22. Dispute Resolution
22.1 The parties agree to use their best efforts to resolve any dispute which may arise under the Agreement through good faith negotiations.
22.2 Either party may raise a dispute by written notice to the other party setting out details of the dispute.
22.3 On receipt of a dispute notice the parties’ authorised representatives shall meet (or otherwise communicate, if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis within ten (10) Working Days of the date of the notice.
22.4 If the dispute is not resolved within ten (10) Working Days from the commencement of negotiations under clause 22.3, then the dispute shall be escalated to the parties’ respective chief executives (or equivalent).
22.5 Where escalation occurs, the parties’ chief executive officers (or equivalent) shall meet (or otherwise communicate if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis.
22.6 If the dispute is not resolved under clause 22.5, the parties may (by written agreement) agree to attempt to settle the dispute by mediation. If the parties agree to mediate, the parties shall appoint a mediator agreed by the parties, or if there is no agreement on the mediator within ten (10) Working Days of the parties agreeing to mediation, the mediator will be appointed by the President of the New Zealand Law Society or his/her nominee. Before mediation commences, the parties and the mediator shall sign a mediation agreement. The cost of the mediation will be shared equally between the parties or as the mediator otherwise directs.
22.7 If the parties do not agree to mediation, or if after mediation has been attempted, the parties remain unable to reach a satisfactory outcome, then the dispute shall be referred to arbitration, provided that neither party shall commence any arbitration in relation to the Agreement unless ten (10) Working Days have passed since the parties’ respective chief executive officers (or equivalent) have met (or otherwise communicated) and endeavoured to resolve the dispute in good faith and on mutually acceptable terms under clause 22.5. Arbitration shall occur pursuant to the Arbitration Act 1996, before a single arbitrator. In the event that the parties cannot agree upon an arbitrator, then an arbitrator shall be appointed by the President of the New Zealand Law Society.
22.8 In the event of a dispute between the parties under the Agreement, the parties shall continue to perform their obligations under the Agreement as far as possible as if no dispute has arisen, pending the final settlement of any matter referred to dispute resolution pursuant to this clause
22.9 Nothing in this clause 22 shall preclude either party from taking immediate steps to seek urgent equitable relief.
23.1 The failure by either party to enforce any provision of the Agreement shall not be treated as a waiver of that party’s right to enforce that provision, nor shall it affect that party’s right to subsequently enforce that provision.
23.2 If any provision or part of any provision of the Agreement is for any reason declared by any judicial or other component authority to be invalid, void, illegal or otherwise unenforceable it shall not affect the validity, legality or enforceability of the other provisions or part provisions of the Agreement and shall be severed from the Agreement so that the remaining provisions or part provisions of the Agreement remain in full force or effect.
23.3 The Agreement is governed by and shall be construed in accordance with the laws of New Zealand (but expressly excluding sections 202 – 206 of the Contract and Commercial Law Act 2017 (United Nations Convention on Contracts for the International Sale of Goods)) and is subject to the non-exclusive jurisdiction of the Courts in New Zealand.
23.4 PSP may license or assign all or any part of its rights or obligations under the Agreement by written notice to the Buyer.
23.5 The Buyer cannot license or assign all or any part of its rights or obligations under the Agreement without the written approval of PSP, which shall be granted at PSP’s sole discretion. 23.6 PSP may elect to subcontract out any part of the provision of Goods but shall not be relieved from any liability or obligation under these terms and conditions by so doing. Furthermore, the Buyer agrees and understands that they have no authority to give any instruction to any of PSP’s sub-contractors without the authority of PSP.
23.7 Neither party shall be liable for any failure or delay in performing an obligation under the Agreement that is due to causes beyond its reasonable control, such as (but not limited to) natural catastrophes, governmental acts or omissions, pandemics, transportation stoppages or slowdowns, any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.8 Under the Covid-19 pandemic (or any other epidemic, pandemic or similar health-related event), PSP will not be liable for delay or failure to perform its obligations where such delay or failure is caused by territorial borders or travel restrictions, alert levels or other restrictions on personal movement, workplace health and safety requirements imposed by the Buyer or any third party, vaccination mandates, public health orders or other workplace access restrictions, actual or potential infection, availability or ability of personnel to complete work (whether due to exposure events, isolation requirements, workplace policies or any other reason) or any other factors which are outside PSP’s reasonable control or that create a risk of infection unacceptable to PSP.
23.9 Both parties warrant that they have the power to enter into the Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that the Agreement creates binding and valid legal obligations on them.
23.10 In the Agreement, unless the context otherwise requires:
(a) Singular words include the plural and vice versa, and where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) Any reference to legislation, statute, regulation, ruling, code, rules or ordinance includes reference to any modification, substitute for, consolidation or re-enactment of it and any regulation, order in council or other instrument from time to time made or issued under such legislation, statute, regulation, ruling, code, rules or ordinance;
(c) Headings are for convenience only and do not affect the interpretation of the Agreement except for use as cross-references;
(d) Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other Person to do that thing;
(e) A document or agreement between the parties to the Agreement (including the Agreement) includes such document or agreement as modified varied, supplemented, novated, replaced or substituted from time to time; and
(f) Where the Buyer consists of more than one Person, the covenants expressed in the Agreement shall bind the Persons jointly and each of them severally.