Terms and 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 “SEL” means Septicworks Limited, its successors and assigns or any person acting on behalf of and with the authority of Septicworks Limited. 

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting SEL to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and 

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and 

(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and 

(d) includes the Client’s executors, administrators, successors and permitted assigns. 

1.4 “Services” means all Services (including consultation, and/or services) or Materials supplied by SEL to the Client at the Client’s request from time to time (where the context so permits the terms “Services” or “Materials” shall be interchangeable for the other). 

1.5 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between SEL and the Client in accordance with clause 6 below.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Services. 

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 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. 

2.4 In the event that SEL is required to provide the Works urgently, that may result in SEL to work outside normal business hours (including, but, not limited to working through lunch breaks, after hours, weekends and/or Public Holidays) or incur travel costs, then SEL reserves the right to charge the Client the additional costs unless otherwise agreed between SEL and the Client. 

3. Price and Payment

3.1 At SEL’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by SEL to the Client in respect of Services performed or Materials supplied; or 

(b) SEL’s quoted Price (subject to clause 2.2) which shall be binding upon SEL provided that the Client shall accept SEL’s quotation in writing within thirty (30) days. 

3.2 SEL reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or 

(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested. 

3.3 At SEL’s sole discretion a non-refundable deposit may be required. 

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

(a) for approved credit account holders fourteen (14) days following the date of any invoice; or 

(b) the date specified on any invoice or other form as being the date for payment; or 

(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SEL. 

3.5 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to SEL an amount equal to any GST, SEL must pay for any supply by SEL under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. 

4. Title 4.1 SEL and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid SEL all amounts owing to SEL; and 

(b) the Client has met all of its other obligations to SEL. 

4.2 Receipt by SEL 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. 

4.3 It is further agreed that:

(a) until ownership of the Materials passes to the Client in accordance with clause 3.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to SEL on request; and 

(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for SEL and must pay to SEL the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed; and 

(c) the production of these terms and conditions by SEL shall be sufficient evidence of SEL’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with SEL to make further enquiries; and 

(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for SEL and must pay or deliver the proceeds to SEL on demand; and 

(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of SEL and must sell, dispose of or return the resulting product to SEL as it so directs; and 

(f) unless the Materials have become fixtures the Client irrevocably authorises SEL to enter any premises where SEL believes the Materials are kept and recover possession of the Materials; and 

(g) SEL may recover possession of any Materials in transit whether or not delivery has occurred; and 

(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of SEL; and 

(i) SEL may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client. 

5. Personal Property Securities Act 1999 (“PPSA”)

5.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and 

(b) a security interest is taken in all Materials and/or collateral (account) – being a monetary obligation of the Client to SEL for Services – that have previously been supplied and that will be supplied in the future by SEL to the Client. 

5.2 The Client undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SEL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and 

(b) indemnify, and upon demand reimburse, SEL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Materials charged thereby; and 

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of SEL; and 

(d) immediately advise SEL of any material change in its business practices of selling Materials which would result in a change in the nature of proceeds derived from such sales. 

5.3 SEL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions. 

5.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA. 

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

5.6 The Client shall unconditionally ratify any actions taken by SEL under clauses 4.1 to 4.5. 

5.7 Subject to any express provisions to the contrary (including those contained in this clause 4), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

6. Security and Charge

6.1 In consideration of SEL agreeing to supply the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 

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

6.3 The Client irrevocably appoints SEL and each director of SEL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 5 including, but not limited to, signing any document on the Client’s behalf. 

7. Risk

7.1 Risk of damage to or loss of the Services passes to the Client on delivery and the Client must insure the Services on or before delivery. 

7.2 If any of the Services are damaged or destroyed following delivery, but prior to ownership passing to the Client, SEL is entitled to receive all insurance proceeds payable for the Services. The production of these Terms and Conditions by SEL is sufficient evidence of SEL’s rights to receive the insurance proceeds without the need for any person dealing with SEL to make further enquiries. 

8. Default and Consequences of Default

8.1 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 SEL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 

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

8.3 Further to any other rights or remedies SEL may have under this Contract, if a Client has made payment to SEL, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SEL under this clause 7, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract. 

8.4 Without prejudice to SEL’s other remedies at law SEL shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SEL shall, whether or not due for payment, become immediately payable if:

(a) any money payable to SEL becomes overdue, or in SEL’s opinion the Client will be unable to make a payment when it falls due; or 

(b) the Client has exceeded any applicable credit limit provided by SEL; or 

(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or 

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client. 

9. Cancellation

9.1 Without prejudice to any other rights or remedies SEL may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s) then SEL may suspend or terminate the supply of the Services. SEL will not be liable to the Client for any loss or damage the Client suffers because SEL has exercised its rights under this clause. 

9.2 SEL may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice SEL shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to SEL for Services already performed. SEL shall not be liable for any loss or damage whatsoever arising from such cancellation. 

9.3 In the event that the Client cancels the delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by SEL as a direct result of the cancellation (including, but not limited to, any loss of profits). 

9.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed. 

10. Privacy Policy

10.1 All emails, documents, images or other recorded information held or used by the Contractor is Personal Information as defined and referred to in clause 10.3 and therefore considered confidential. the Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law. 

10.2 Notwithstanding clause 10.1, privacy limitations will extend to the Contractor in respect of Cookies where the Client utilises the Contractor’s website to make enquiries. The Contractor agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a) IP address, browser, email client type and other similar details; and 

(b) tracking website usage and traffic; and 

(c) reports are available to the Contractor when the Contractor sends an email to the Client, so the Contractor may collect and review that information (“collectively Personal Information”). 
If the Client consents to the Contractor’s use of Cookies on the Contractor’s website and later wish to withdraw that consent, the Client may manage and control the Contractor’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site. 

10.3 The Client authorises the Contractor or the Contractor’s agent to:

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

(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (e.g. email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; and 

(ii) for the purpose of marketing products and services to the Client. 

(b) disclose information about the Client, whether collected by the Contractor from the Client directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client. 

10.4 Where the Client is an individual the authorities under clause 10.3 are authorities or consents for the purposes of the Privacy Act 2020. 

10.5 The Client shall have the right to request the Contractor for a copy of the Personal Information about the Client retained by the Contractor and the right to request the Contractor to correct any incorrect Personal Information about the Client held by the Contractor. 

11. General

11.1 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. 

11.2 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 Hawera, New Zealand. 

11.3 SEL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SEL of these terms and conditions (alternatively SEL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services). 

11.4 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, pandemic, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party (referenced as Force Majeure). 

11.5 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

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