Superior Manufacturing Limited – Terms & Conditions of Trade
1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “SML” means Superior Manufacturing Limited T/A Superior Trailers, its successors and assigns or any person acting on behalf of and with the authority of Superior Manufacturing Limited T/A Superior Trailers.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting SML to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by SML to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using SML’s website, then the Customer 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.
1.7 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between SML and the Customer in accordance with clause 5 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with SML and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Goods requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, SML reserves the right to refuse delivery.
2.6 In the event that the Goods and/or Services provided by SML are the subject of an insurance claim that the Customer has made, then the Customer shall be responsible for the payment of any monies payable to the insurance company and agrees to honour their obligation for payment for such transactions invoiced by SML and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful.
2.7 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.8 These terms and conditions may be meant to be read in conjunction with SML’s Hire Form, and:
(a) where the context so permits, the terms ‘Services’ or ‘Goods’ shall include any supply of Equipment, as defined therein; and
(b) if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3. Errors and Omissions
3.1 The Customer acknowledges and accepts that SML 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 SML 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 SML in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of SML; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Customer shall give SML not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by SML as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At SML’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by SML to the Customer; or
(b) the Price as at the date of Delivery of the Goods according to SML’s current price list; or
(c) SML’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 SML reserves the right to change the Price:
(a) if a variation or deviation to the Goods which are to be supplied is requested; or
(b) if a variation or deviation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) if during the course of the Services, the Goods cease to be available from SML’s third party suppliers, then SML reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(d) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Services; or.
(e) if SML has been requested by the Customer to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead; and
(f) in the event of increases to SML in the cost of labour or materials (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 SML’s control.
5.3 Variations will be charged for on the basis of SML’s quotation, and will be detailed in writing, and shown as variations on SML’s invoice. The Customer shall be required to respond to any variation submitted by SML within ten (10) working days. Failure to do so will entitle SML to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At SML’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by SML, which may be:
(a) on or before delivery of the Goods;
(b) by way of instalments/progress payments in accordance with SML’s payment schedule;
(c) for certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by SML.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and SML.
5.7 SML may in its discretion allocate any payment received from the Customer towards any invoice that SML determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer SML may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SML, payment will be deemed to be allocated in such manner as preserves the maximum value of SML’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
5.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by SML nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to SML an amount equal to any GST SML must pay for any supply by SML under this or any other contract for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at SML’s address; or
(b) SML (or SML’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
6.2 At SML’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
6.3 Any time specified by SML for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. SML will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then SML shall be entitled to charge a reasonable fee for redelivery and/or storage.
7. Risk
7.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, SML is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SML is sufficient evidence of SML’s rights to receive the insurance proceeds without the need for any person dealing with SML to make further enquiries.
7.3 If the Customer requests SML to leave Goods outside SML’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7.4 The Customer acknowledges and agree that where SML has performed temporary repairs on the Goods that:
(a) SML offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) SML will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair of the Goods.
7.5 The Customer acknowledges that SML is only responsible for Goods that are replaced by SML, and that in the event that other Goods subsequently fail, the Customer agrees to indemnify SML against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
7.6 SML shall not be liable for the loss of or damage to the Customer’s Goods, its accessories or contents while being repaired or operated in connection with the authorised Services, unless caused by the negligence of SML, or SML’s employees.
7.7 It is the Customer’s responsibility to ensure that the Customer’s Goods are 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 SML’s premises. The Goods are at all times stored and repaired at the Customer’s sole risk.
7.8 The Customer acknowledges and agrees that SML shall be entitled to:
(a) retain any components replaced during the provision of the Services; and
(b) the right to retain all proceeds obtained from the sale of such components to any auto recycler or salvage yard.
8. Compliance with Laws
8.1 The Customer and SML 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.
8.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.
9. Title
9.1 SML and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid SML all amounts owing to SML; and
(b) the Customer has met all of its other obligations to SML.
9.2 Receipt by SML 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 Customer in accordance with clause 9.1:
(a) the Customer is only a bailee of the Goods and must return the Goods to SML on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for SML and must pay to SML the proceeds of any insurance in the event of the Goods being lost, damaged, or destroyed;
(c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for SML and must pay or deliver the proceeds to SML on demand;
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of SML and must sell, dispose of or return the resulting product to SML as it so directs;
(e) the Customer irrevocably authorises SML to enter any premises where SML believes the Goods are kept and recover possession of the Goods;
(f) SML may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Customer 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 SML; and
(h) SML may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
10. Personal Property Securities Act 1999 (“PPSA”)
10.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Customer to SML for Services – that have previously been supplied and that will be supplied in the future by SML to the Customer.
10.2 The Customer 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 SML may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, SML for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of SML; and
(d) immediately advise SML 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 SML and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
10.5 Unless otherwise agreed to in writing by SML, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6 The Customer shall unconditionally ratify any actions taken by SML under clauses 10.1 to 10.5.
10.7 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of SML agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Customer indemnifies SML from and against all SML’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SML’s rights under this clause.
11.3 The Customer irrevocably appoints SML and each director of SML as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Customer’s behalf.
12. Defects
12.1 The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify SML of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote. The Customer shall afford SML an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SML has agreed in writing that the Customer is entitled to reject, SML’s liability is limited to either (at SML’s discretion) replacing the Goods or repairing the Goods.
12.2 Goods will not be accepted for return other than in accordance with 12.1 above, and provided that:
(a) SML has agreed in writing to accept the return of the Goods; and
(b) the Goods are returned at the Customer’s cost within seven (7) days of the Delivery date; and
(c) SML 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.
12.3 SML may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
12.4 Subject to clause 12.1, non-stocklist items or Goods made to the Customer’s specifications are not acceptable for credit or return.
13. Warranty
13.1 Subject to the conditions of warranty set out in clause 13.2 SML warrants that if any defect in any workmanship of SML becomes apparent and is reported to SML within twelve (12) months of the date of Delivery (time being of the essence) then SML will either (at SML’s sole discretion) replace or remedy the workmanship.
13.2 The conditions applicable to the warranty given by clause 13.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by SML; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and SML shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered, or overhauled without SML’s consent.
(c) in respect of all claims SML shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
13.3 For Goods not manufactured by SML, the warranty shall be the current warranty provided by the manufacturer of the Goods. SML 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.
14. Consumer Guarantees Act 1993
14.1 If the Customer is acquiring Goods for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by SML to the Customer.
15. Intellectual Property
15.1 Where SML has designed, drawn, or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of SML. Under no circumstances may such designs, drawings and documents be used without the express written approval of SML.
15.2 The Customer warrants that all designs, specifications, or instructions given to SML will not cause SML to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SML against any action taken by a third party against SML in respect of any such infringement.
15.3 The Customer agrees that SML may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, or Goods which SML has created for the Customer.
16. Default and Consequences of Default
16.1 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 SML’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Customer owes SML any money the Customer shall indemnify SML from and against all costs and disbursements incurred by SML in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SML’s collection agency costs, and bank dishonour fees).
16.3 Further to any other rights or remedies SML may have under this Contract, if a Customer has made payment to SML, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SML under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
16.4 Without prejudice to SML’s other remedies at law SML shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to SML shall, whether or not due for payment, become immediately payable if:
(a) any money payable to SML becomes overdue, or in SML’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by SML;
(c) the Customer 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 Customer or any asset of the Customer.
17. Cancellation
17.1 Without prejudice to any other remedies SML may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions SML may suspend or terminate the supply of Goods to the Customer. SML will not be liable to the Customer for any loss or damage the Customer suffers because SML has exercised its rights under this clause.
17.2 SML 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 Customer. On giving such notice SML shall repay to the Customer any money paid by the Customer for the Goods. SML shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by SML as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Policy
18.1 All emails, documents, images, or other recorded information held or used by SML is Personal Information as defined and referred to in clause 18.3 and therefore considered confidential. SML acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). SML acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by SML that may result in serious harm to the Customer, SML will notify the Customer in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to SML in respect of Cookies where the Customer utilises SML’s website to make enquiries. SML 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 Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to SML when SML sends an email to the Customer, so SML may collect and review that information (“collectively Personal Information”)
If the Customer consents to SML’s use of Cookies on SML’s website and later wishes to withdraw that consent, the Customer may manage and control SML’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
18.3 The Customer authorises SML or SML’s agent to:
(a) access, collect, retain and use any information about the Customer;
(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 Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by SML from the Customer directly or obtained by SML 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 Customer.
18.4 Where the Customer is an individual the authorities under clause 18.3 are authorities or consents for the purposes of the Privacy Act 1993.
18.5 The Customer shall have the right to request (by e-mail) from SML, a copy of the Personal Information about the Customer retained by SML and the right to request that SML correct any incorrect Personal Information.
18.6 SML will destroy Personal Information upon the Customer’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.
18.7 The Customer can make a privacy complaint by contacting SML via e-mail. SML 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.
19. Service of Notices
19.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20. Trusts
20.1 If the Customer at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not SML may have notice of the Trust, the Customer covenants with SML as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer 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 Customer will not without consent in writing of SML (SML will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
21. General
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
21.3 SML shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SML of these terms and conditions (alternatively SML’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 SML may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
21.5 The Customer cannot licence or assign without the written approval of SML.
21.6 SML 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 Customer agrees and understands that they have no authority to give any instruction to any of SML’s sub-contractors without the authority of SML.
21.7 The Customer agrees that SML may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for SML to provide Goods to the Customer.
21.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
