Term & Conditions of Trade

GWM NZ LTD - 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 “GWM NZ Limited” means Genesis Waterproofing & Maintenance NZ Limited, its successors and assigns or any person acting on behalf of and with the authority of GWM NZ Limited.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Genesis to provide the Works 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

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

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

1.5 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by GWM NZ LTD

1.6 “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with the Works.

1.7 “Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:

(a) the product is not, or will not be, safe; or

(b) does not, or will not, comply with the relevant regulatory provisions; or

(c) the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.

1.8 "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.

1.9 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Genesis’ website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.10 “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Works as agreed between Genesis 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 Works.

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 Where GWM NZ LTD gives any advice, recommendation, information, assistance or service provided by GWM NZ LTD in relation to Materials or Works supplied is given in good faith to the Client, or the Client’s agent, and is based on GWM NZ LTD’ own knowledge and experience and shall be accepted without liability on the part of GWM NZ LTD. Where such advice or recommendations are not acted upon then GWM NZ LTD shall require the Client or their agent to authorise commencement of the Works in writing. GWM NZ LTD shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.5 The Client acknowledges and accepts that:

(a) the supply of Works on credit shall not take effect until the Client has completed a credit application with GWM NZ LTD and it has been approved with a credit limit established for the account;

(b) in the event that the supply of Works request exceeds the Client’s credit limit and/or the account exceeds the payment terms, GWM NZ LTD reserves the right to refuse delivery; and

(c) where the Client’s credit account is inactive for a period of two (2) years, the said credit account will be automatically be closed. Once closed, a new application will be required to resume trading; and

(d) all dockets are issued at point of sale for all transactions. Dockets may be only be reprinted up to twelve (12) months from date of sale. Any reprints after this period may incur an additional charge.

2.6 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.

3. Authorised Representatives

3.1 The Client acknowledges that GWM NZ LTD shall (for the duration of the Works) liaise directly with any designated authorised representatives, and that once introduced as such to GWM NZ LTD, these people shall have the full authority of the Client to order any Works, Materials and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to GWM NZ LTD for all additional costs incurred by GWM NZ LTD (including GWM NZ LTD’ profit margin) in providing any Works, Materials or variation/s requested thereto by the Client’s duly authorised representatives.

4. Change in Control

4.1 The Client shall give GWM NZ LTD not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by GWM NZ LTD as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1 At GWM NZ LTD’ sole discretion the Price shall be either:

(a) as indicated on invoices provided by GWM NZ LTD to the Client in respect of Works performed or Materials supplied; or

(b) GWM NZ LTD’ quoted Price (subject to clause 6.2) which shall be binding upon GWM NZ LTD provided that the Client shall accept GWM NZ LTD’ quotation in writing within thirty (30) days.

5.2 GWM NZ LTD 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 Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to Worksite accessibility, health hazards and/or safety considerations (such as the discovery of asbestos or rot), prerequisite work by any third party not being completed, obscured Worksite defects which require remedial work, uneven work surfaces, etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to GWM NZ LTD in the cost of labour or materials which are beyond GWM NZ LTD’ control.

5.3 Variations will be charged for on the basis of GWM NZ LTD’ quotation, and will be detailed in writing, and shown as variations on GWM NZ LTD’ invoice. The Client shall be required to respond to any variation submitted by GWM NZ LTD within ten (10) working days. Failure to do so will entitle GWM NZ LTD 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 GWM NZ LTD’ sole discretion a non-refundable deposit may be required.

5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by GWM NZ LTD, which may be:

(a) on completion of the Works;

(b) by way of progress payments in accordance with GWM NZ LTD’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed;

(c) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(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 Client by GWM NZ LTD.

5.6 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, GWM NZ LTD reserves the right to treat all retentions as placing the Client’s account into default.

5.7 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Client and GWM NZ LTD.

5.8 GWM NZ LTD may in its discretion allocate any payment received from the Client towards any invoice that GWM NZ LTD determines and may do so at the time of receipt or at any time afterwards. On any default by the Client GWM NZ LTD may re-allocate any payments previously received and allocated. In the absence of any payment allocation by GWM NZ LTD, payment will be deemed to be allocated in such manner as preserves the maximum value of GWM NZ LTD’ Purchase Money Security Interest (as defined in the PPSA) in the Materials.

5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to GWM NZ LTD an amount equal to any GST GWM NZ LTD must pay for any supply by GWM NZ LTD 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.

6. Provision of the Works

6.1 Subject to clause 7.2 it is GWM NZ LTD’ responsibility to ensure that the Works start as soon as it is reasonably possible.

6.2 The Works’ commencement date will be put back and the completion date extended by whatever time is reasonable in the event that GWM NZ LTD claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond GWM NZ LTD’ control, including but not limited to any failure by the Client to:

(a) make a selection; or

(b) have the Worksite ready for the Works; or

6.3 At GWM NZ LTD’ sole discretion, the cost of delivery is included in the Price.

6.4 GWM NZ LTD may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.5 Any time specified by GWM NZ LTD for delivery of the Works is an estimate only and GWM NZ LTD will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that GWM NZ LTD is unable to supply the Works as agreed solely due to any action or inaction of the Client, then GWM NZ LTD shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

7. Risk

7.1 If GWM NZ LTD retains ownership of the Materials under clause 13 then:

(a) where GWM NZ LTD is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:

(i) the Client or the Client’s nominated carrier takes possession of the Materials at GWM NZ LTD’ address; or

(ii) the Materials are delivered by GWM NZ LTD or GWM NZ LTD’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b) where GWM NZ LTD is to both supply and install Materials then GWM NZ LTD shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.

7.2 Notwithstanding the provisions of clause 8.1 if the Client specifically requests GWM NZ LTD to leave Materials outside GWM NZ LTD’ premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.

7.3 Genesis shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, GWM NZ LTD accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

7.4 All potential waterproofing surfaces are subject to an inspection by GWM NZ LTD prior to the commencement of the Works. In the event that the surface is deemed unsuitable, then GWM NZ LTD reserves the right to halt the Works until such time as it is agreed between GWM NZ LTD and the Client as to the additional cost in further preparation of the surface in order to make it fit for waterproofing. The additional cost shall be charged as a variation to the quotation as per clause 6.2.

7.5 GWM NZ LTD shall not be liable for:

(a) any inferior existing paintwork where GWM NZ LTD’ paint has bonded to the existing paintwork and weakened the previous paint causing any kind of flake, crack or blemish; and

(b) the quality of the Works if the Client does not follow GWM NZ LTD’ recommendations as to the number of coats of paint/lacquer required to obtain the final finish if the Client chooses to accept a reduced Price based on fewer coats of paint/lacquer; and

(c) any defects that may arise in the paint work or waterproofing over time where such defects are due to circumstances beyond GWM NZ LTD’ control (including without limitation, moisture content, building movement, age and condition of the building or structure or age and condition of previously applied paints or previous applications of paint or other materials to the surfaces not apparent upon inspection or otherwise previously disclosed to GWM NZ LTD); and

(d) any loss or damage to the Works (including, but not limited to, rendered surfaces) that is caused by any other tradesmen. GWM NZ LTD shall be under no obligation to repair any holes or damage as a result of work completed by other third-party tradesmen.

7.6 The Client acknowledges and accepts that:

(a) GWM NZ LTD shall apply the Materials to the manufacturer’s specification and comply with any applicable Australian/New Zealand Standards;

(b) GWM NZ LTD may not be able to ascertain the depth of, or if a void or cavity is present behind a crack for repair without closer inspection. Any additional costs incurred by Genesis for carrying out such investigation prior to repairing such a defect shall be invoiced as variation in accordance with clause 6.2. The Client also accepts that repair methods may alter as a result of any such investigation;

(c) GWM NZ LTD gives no guarantee (expressed or implied) as to the length of time the curing process of repair Works will take due to factors or conditions outside GWM NZ LTD’ control (including, but not limited to, the surfaces and the existing condition of the defect, atmospheric conditions including humidity and temperature, the nature of the repair);

(d) Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. GWM NZ LTD will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and

(e) any finished Materials applied may:

(i) expand, contract or distort as a result of exposure to heat, cold, weather; and

(ii) mark or stain if exposed to certain substances; and

(iii) be damaged or disfigured by impact or scratching.

8. Client Responsibilities

8.1 It is the intention of GWM NZ LTD, and agreed by the Client, that it is the responsibility of the Client to:

(a) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by GWM NZ LTD in this regard;

(b) fully disclose any information that may affect GWM NZ LTD installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa);

(d) ensure that any surface requiring waterproofing is suitable for the purpose. In the event that the Client requests GWM NZ LTD to prepare the surface for waterproofing, then at GWM NZ LTD’ sole discretion a fee shall be charged for the Works, and shall become immediately due and payable;

(e) ensure that no other tradesmen work on the membrane applied to the surface, until the membrane is fully dried and cured to manufacturer’s specifications. GWM NZ LTD shall not be liable for any costs, damages or loss however arising from the Client’s failure to comply with this clause;

(f) provide GWM NZ LTD an onsite area suitable for the disposal of worksite rubbish. GWM NZ LTD is not responsible for the removal of rubbish from the building/constructions worksite/s. This is the responsibility of the Client or the Client’s agent; and

(g) provide GWM NZ LTD with facilities, as specified by GWM NZ LTD, (including, but not limited to, a suitable free power source) for the duration of the Works.

9. Access

9.1 The Client shall ensure that GWM NZ LTD has clear and free access to the Worksite at all times to enable them to undertake the Works. GWM NZ LTD shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of GWM NZ LTD.

10. Underground Locations

10.1 Prior to GWM NZ LTD commencing any work the Client must advise GWM NZ LTD of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.

10.2 Whilst GWM NZ LTD will take all care to avoid damage to any underground services the Client agrees to indemnify GWM NZ LTD in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 11.1.

11. Compliance with Laws

11.1 The Client and GWM NZ LTD shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any WorkSafe health and safety laws relating or any other relevant safety standards or legislation pertaining to the Works.

11.2 Both parties acknowledge and agree:

(a) to comply with the Building Amendment Act 2013, in respect of all workmanship and building products to be supplied during the course of the Works; and

(b) that Works will be provided in accordance with the any current relevant Australian/New Zealand Standards applicable.

11.3 Where the Client has supplied products for GWM NZ LTD to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and are for their Intended Use and any faults inherent in those products. However, if in GWM NZ LTD’ opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with New Zealand regulations, then GWM NZ LTD shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 6.2.

11.4 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

11.5 GWM NZ LTD shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.

11.6 Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”), GWM NZ LTD agrees at all times to comply with sections 28 and 34 of the “HSW Act” with meeting their obligations for health and safety laws in the workplace regardless of whether they may be the party in control of the Worksite or where they may be acting as a sub-contractor for the Client who has engaged a third party head contractor.

12. Title

12.1 GWM NZ LTD and the Client agree that ownership of the Materials shall not pass until:

(a) the Client has paid GWM NZ LTD all amounts owing to GWM NZ LTD; and

(b) the Client has met all of its other obligations to GWM NZ LTD.

12.2 Receipt by GWM NZ LTD of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

12.3 It is further agreed that:

(a) until ownership of the Materials passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to GWM NZ LTD on request;

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

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

(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 GWM NZ LTD and must pay or deliver the proceeds to GWM NZ LTD on demand;

(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 GWM NZ LTD and must sell, dispose of or return the resulting product to GWM NZ LTD as it so directs;

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

(g) GWM NZ LTD may recover possession of any Materials in transit whether or not delivery has occurred;

(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 GWM NZ LTD; and

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

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

13.1 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 GWM NZ LTD for Works – that have previously been supplied and that will be supplied in the future by GWM NZ LTD to the Client.

13.2 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 GWM NZ LTD may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, GWM NZ LTD 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;

(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 GWM NZ LTD; and

(d) immediately advise GWM NZ LTD 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.

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

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

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

13.6 The Client shall unconditionally ratify any actions taken by GWM NZ LTD under clauses 14.1 to 14.5.

13.7 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14. Security and Charge

14.1 In consideration of GWM NZ LTD agreeing to supply the Works, 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).

14.2 The Client indemnifies Genesis from and against all GWM NZ LTD’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising GWM NZ LTD’ rights under this clause.

14.3 The Client irrevocably appoints GWM NZ LTD and each director of GWM NZ LTD as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

15. Warranties

15.1 Subject to the conditions of warranty set out in clause 17.2 GWM NZ LTD warrants that if any defect in any workmanship of GWM NZ LTD becomes apparent and is reported to GWM NZ LTD within five (5) years of the date of delivery (time being of the essence) then GWM NZ LTD will either (at GWM NZ LTD’ sole discretion) replace or remedy the workmanship.

15.2 The conditions applicable to the warranty given by clause 17.1 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 Client to properly maintain any Materials; or

(ii) failure on the part of the Client to follow any instructions or guidelines provided by GWM NZ LTD; or

(iii) any use of any Materials otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Materials 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 GWM NZ LTD shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without GWM NZ LTD’ consent.

(c) in respect of all claims GWM NZ LTD shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.

15.3 For Materials not manufactured by GWM NZ LTD, the warranty shall be the current warranty provided by the manufacturer of the Materials. GWM NZ LTD 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 Materials.

16. Consumer Guarantees Act 1993

16.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by GWM NZ LTD to the Client.

16. Intellectual Property

16.1 The Client warrants that all designs, specifications or instructions given to GWM NZ LTD will not cause GWN NZ LTD to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify GWM NZ LTD against any action taken by a third party against GWM NZ LTD in respect of any such infringement.

16.2 The Client agrees that GWM NZ LTD may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which GWM NZ LTD has created for the Client.

17. Default and Consequences of Default

17.1 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 GWM NZ LTD’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

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

17.3 Further to any other rights or remedies GWM NZ LTD may have under this Contract, if a Client has made payment to GWM NZ LTD, 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 GWM NZ LTD under this clause 20, 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.

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

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

(b) the Client has exceeded any applicable credit limit provided by GWM NZ LTD;

(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.

18. Cancellation

18.1 Without prejudice to any other rights or remedies GWM NZ LTD 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 GWM NZ LTD may suspend or terminate the supply of the Works. GWM NZ LTD will not be liable to the Client for any loss or damage the Client suffers because GWM NZ LTD has exercised its rights under this clause.

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

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

18.4 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.

19. Privacy Policy

19.1 All emails, documents, images or other recorded information held or used by GWM NZ LTD is Personal Information as defined and referred to in clause 23.1 and therefore considered confidential. GWM NZ LTD 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”). GWM NZ LTD acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by GWM NZ LTD that may result in serious harm to the Client, GWM NZ LTD 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.

19.2 Notwithstanding clause 22.1, privacy limitations will extend to GWM NZ LTD in respect of Cookies where the Client utilises GWM NZ LTD’ website to make enquiries. GWM NZ LTD agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

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

(b) tracking website usage and traffic; and

(c) reports are available to GWM NZ LTD when GWM NZ LTD sends an email to the Client, so GWM NZ LTD may collect and review that information (“collectively Personal Information”)

If the Client consents to GWM NZ LTD’ use of Cookies on GWM NZ LTD’ website and later wishes to withdraw that consent, the Client may manage and control GWM NZ LTD’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

19.3 The Client authorises GWM NZ LTD or GWM NZ LTD’ agent to:

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

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

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

(b) disclose information about the Client, whether collected by GWM NZ LTD from the Client directly or obtained by GWM NZ LTD 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.

19.4 Where the Client is an individual the authorities under clause 23.1 are authorities or consents for the purposes of the Privacy Act 1993.

19.5 The Client shall have the right to request GWM NZ LTD for a copy of the Personal Information about the Client retained by GWM NZ LTD and the right to request GWM NZ LTD to correct any incorrect Personal Information about the Client held by GWM NZ LTD.

20. Suspension of Works

20.1 Where the Contract is subject to section 24A of the Construction Contracts Amendment Act 2015, the Client hereby expressly acknowledges that:

(a) GWM NZ LTD has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:

(i) the payment is not paid in full by the due date for payment in accordance with clause 6.5 and/or any subsequent amendments or new legislation and no payment schedule has been given by the Client; or

(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or

(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to GWM NZ LTD by a particular date; and

(iv) GWM NZ LTD has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.

(b) if GWM NZ LTD suspends work, it:

(i) is not in breach of Contract; and

(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and

(iii) is entitled to an extension of time to complete the Contract; and

(iv) keeps its rights under the Contract including the right to terminate the Contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.

(i) affect any rights that would otherwise have been available to GWM NZ LTD under the Contract and Commercial Law Act 2017; or

(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of GWM NZ LTD suspending work under this provision;

(d) due to any act or omission by the Client, the Client effectively precludes GWM NZ LTD from continuing the Works or performing or complying with GWM NZ LTD’ obligations under this Contract, then without prejudice to GWM NZ LTD’ other rights and remedies, GWM NZ LTD may suspend the Works immediately after serving on the Client a written notice specifying the payment default or the act, omission or default upon which the suspension of the Works is based. All costs and expenses incurred by GWM NZ LTD as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.

20.2 If pursuant to any right conferred by this Contract, Genesis suspends the Works and the default that led to that suspension continues un-remedied subject to clause 20.1 for at least ten (10) working days, GWM NZ LTD shall be entitled to terminate the Contract, in accordance with clause 20.

23. Service of Notices

23.1 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;

(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.

23.2 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.

24. Trusts

24.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not GWM NZ LTD may have notice of the Trust, the Client covenants with GWM NZ LTD as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client 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 Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(c) the Client will not without consent in writing of GWM NZ LTD (GWM NZ LTD will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

25. General

25.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either adjudication in accordance with section 26 of the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

25.2 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.

25.3 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 Auckland Courts of New Zealand.

25.4 GWM NZ LTD 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 GWM NZ LTD of these terms and conditions (alternatively GWM NZ LTD’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

25.5 Genesis may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

25.6 The Client cannot licence or assign without the written approval of Genesis.

25.7 GWM NZ LTD may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of GWM NZ LTD’ sub-contractors without the authority of GWM NZ LTD.

25.8 The Client agrees that GWM NZ LTD may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for GWM NZ LTD to provide Works to the Client.

25.9 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.

25.10 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.

GWM NZ LIMITED

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Term & Conditions of Trade