Terms & Conditions of Trade

Best Water Solutions

Definitions
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.
2. “BWS” means Best Water Solutions Limited, its successors and assigns or any person acting on behalf of and with the authority of Best Water Solutions Limited.
3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting BWS to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
  1. if there is more than one Client, is a reference to each Client jointly and severally; and
  2. if the Client is a partnership, it shall bind each partner jointly and severally; and
  3. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
  4. includes the Client’s executors, administrators, successors and permitted assigns.
4. “Goods” means all Goods or Services supplied by BWS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
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.
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 Client does not wish to allow Cookies to operate in the background when ordering from the 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 ordering Goods via the website.
7. .“Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between BWS and the Client in accordance with clause 6 below.
Acceptance
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 the Goods.
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.
3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
4. The Client acknowledges and accepts that:
  1. the supply of Goods on credit shall not take effect until the Client has completed a credit application with BWS and it has been approved with a credit limit established for the account; and
  2. in the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, BWS reserves the right to refuse Delivery; and
  3. the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, BWS reserves the right to vary the Price with alternative Goods as per clause 6.2, subject to prior confirmation and agreement of both parties. BWS also reserves the right to halt all Services until such time as BWS and the Client agree to such changes. BWS shall not be liable to the Client for any loss or damage the Client suffers due to BWS exercising its rights under this clause; and
  4. further to clause 2.4(c), BWS will use reasonable endeavours to match new Goods to existing Goods. However, the parties recognise that it may not be possible to provide an exact match of Goods. Where an exact match of Goods is not possible BWS will provide suitable comparable Goods.
5. 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.
6. These terms and conditions may be meant to be read in conjunction with BWS’ Hire Form, and:
  1. where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
  2. if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
Authorised Representatives
1. The Client acknowledges that BWS shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to BWS, that person shall have the full authority of the Client to order any Goods, Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to BWS for all additional costs incurred by BWS (including BWS’ profit margin) in providing any Goods, Services or variation/s requested thereto by the Client’s duly authorised representative.
Errors and Omissions
1. The Client acknowledges and accepts that BWS shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. resulting from an inadvertent mistake made by BWS in the formation and/or administration of this Contract; and/or
  2. contained in/omitted from any literature (hard copy and/or electronic) supplied by BWS in respect of the Services.
2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of BWS; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
Change in Control
1. The Client shall give BWS 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 and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by BWS as a result of the Client’s failure to comply with this clause.
Price and Payment
1. At BWS’ sole discretion the Price shall be either:
  1. as indicated on any invoice provided by BWS to the Client; or
  2. BWS’ quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. BWS reserves the right to change the Price:
  1. if a variation to the Goods which are to be supplied is requested; or
  2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
  3. if during the course of the Services, the Goods are not or cease to be available from BWS’ third party suppliers, then BWS reserves the right to provide alternative Goods (or components of the Goods); or
  4. where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of equipment, obscured site defects which require remedial work, latent soil conditions, hard rock barriers below the surface, incorrect or inaccurate plans/specifications provided by the Client, safety considerations, prerequisite work by any third party not being completed or hidden pipes or wiring) which are only discovered on commencement of the Services; or
  5. in the event of increases to BWS in the cost of labour or materials which are beyond BWS’ control.
3. Variations will be charged for on the basis of BWS’ quotation, and will be detailed in writing, and shown as variations on BWS’ invoice. The Client shall be required to respond to any variation submitted by BWS within ten (10) working days. Failure to do so will entitle BWS 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.
4. At BWS’ sole discretion a non-refundable deposit may be required, the deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/Services and shall become immediately due and payable.
5. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by BWS, which may be:
  1. on Delivery of the Goods;
  2. before Delivery of the Goods;
  3. by way of instalments/progress payments in accordance with BWS’ payment schedule;
  4. for certain approved Clients, due either seven (7) or twenty (20) days following the end of the month in which a statement is delivered to the Client’s address or address for notices;
  5. the date specified on any invoice or other form as being the date for payment; or
  6. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by BWS.
6. At the agreement of both parties, payment of the Price may be subject to retention by the Client of an amount (hereafter called the “Retention Money”), being a set amount or equal to a percentage of the Price. The Client shall hold the Retention Money for the agreed period following completion of the Services during which time all Services are to be completed and/or all defects are to be remedied. Any Retention Money applicable to this Contract is to be dealt with in accordance with section 18(a) to 18(i) of the Construction Contracts Act 2002.
7. Payment may be made by 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 Client and BWS.
8. BWS may in its discretion allocate any payment received from the Client towards any invoice that BWS determines and may do so at the time of receipt or at any time afterwards. On any default by the Client BWS may re-allocate any payments previously received and allocated. In the absence of any payment allocation by BWS, payment will be deemed to be allocated in such manner as preserves the maximum value of BWS’ Purchase Money Security Interest (as defined in the PPSA) in the Goods.
9. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by BWS nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by BWS is a claim made under the Construction Contracts Act 2002.
10. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to BWS an amount equal to any GST BWS must pay for any supply by BWS under this or any other contract for the sale of the Goods. 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.

Delivery
1. Delivery (“Delivery”) of the Goods is taken to occur at the time that BWS (or BWS’ nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
2. Subject to clause 7.3 it is BWS’ responsibility to ensure that the Services start as soon as it is reasonably possible.
3. The Services’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that BWS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond BWS’ control, including but not limited to any failure by the Client to:
  1. make a selection; or
  2. have the site ready for the Services; or
  3. notify BWS that the site is ready.
4. At BWS’ sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
5. BWS may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6. Any time specified by BWS for Delivery of the Services is an estimate only and BWS 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 Services to be supplied at the time and place as was arranged between both parties. In the event that BWS is unable to supply the Services as agreed solely due to any action or inaction of the Client, then BWS shall be entitled to charge a reasonable fee for re-supplying the Services and/or storage of the Goods.
Product Specifications
1. The Client acknowledges that:
  1. all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in BWS’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by BWS;
  2. while BWS may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that BWS has given these in good faith, and are estimates based on industry prescribed estimates.
2. The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
Risk
1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
2. If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, BWS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BWS is sufficient evidence of BWS’ rights to receive the insurance proceeds without the need for any person dealing with BWS to make further enquiries.
3. If the Client requests BWS to leave Goods outside BWS’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
4. Where BWS gives advice or recommendations to the Client, or the Client’s authorised representative, regarding any aspect of the scope of the Services (including but not limited to, a particular course of action and/or product selection), and such advice or recommendations are not acted upon then BWS shall require the Client or their authorised representative to authorise commencement of the Services in writing. BWS shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
5. Where the Client has provided plans, instructions or specifications for BWS to complete the Services, then:
  1. BWS shall be entitled to rely on the accuracy of such plans, specifications and other information provided by the Client; and
  2. the Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, BWS accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information; and
  3. where the Client requests variation to the original design, then BWS shall accept no liability whatsoever for the finished Services being deemed as unsatisfactory to the Client.
6. The Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and BWS shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
7. The Client acknowledges that:
  1. BWS is only responsible for Goods that are repaired by BWS, and in the event that other components subsequently fail, the Client agrees to indemnify BWS against any loss or damage to the Goods, or caused by the components, or any part thereof howsoever arising; and
  2. all shrubs, plants, grass and any other flora or foliage is the responsibility of the Client, BWS shall endeavour to take all due care in performing the Services, however BWS accepts no responsibility and the Client shall indemnify BWS where any shrubs, plants, grass and any other flora or foliage are damaged or die-off during or after completion of the Services; and
  3. variations of colour and shade are inherent in the Goods. While every effort will be taken by BWS to match colour and shade of the Goods, BWS shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
8. In the event BWS is only supplying Goods and not installing the Goods, BWS shall not be liable for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
Access
1. The Client shall ensure that BWS has clear and free access to the site at all times to enable them to undertake the Services and/or effect Delivery of the Goods. BWS shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of BWS.
Underground Locations
1. Prior to BWS commencing any Services the Client must advise BWS of the precise location of all underground services on the site and clearly mark the same. The underground mains & 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 site.
2. Whilst BWS will take all care to avoid damage to any underground services the Client agrees to indemnify BWS 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.
Compliance with Laws
1. The Client and BWS 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.
2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
3. Notwithstanding clause 12.1 and pursuant to the Health & Safety at Work Act 2015 (the “HSW Act”) BWS agrees at all times 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 thirty party head contractor.
Title
1. BWS and the Client agree that ownership of the Goods shall not pass until:
  1. the Client has paid BWS all amounts owing to BWS; and
  2. the Client has met all of its other obligations to BWS.
2. Receipt by BWS 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.
3. It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 13.1:
  1. the Client is only a bailee of the Goods and must return the Goods to BWS on request;
  2. the Client holds the benefit of the Client’s insurance of the Goods on trust for BWS and must pay to BWS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
  3. the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for BWS and must pay or deliver the proceeds to BWS on demand;
  4. the Client should not convert or process the Goods 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 BWS and must sell, dispose of or return the resulting product to BWS as it so directs;
  5. the Client irrevocably authorises BWS to enter any premises where BWS believes the Goods are kept and recover possession of the Goods;
  6. BWS may recover possession of any Goods in transit whether or not Delivery has occurred;
  7. the Client 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 BWS;
  8. BWS may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 1999 (“PPSA”)
1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
  1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
  2. a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to BWS for Services – that have previously been supplied and that will be supplied in the future by BWS to the Client.
2. The Client undertakes to:
  1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which BWS may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
  2. indemnify, and upon demand reimburse, BWS 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;
  3. 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 BWS; and
  4. immediately advise BWS 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.
3. BWS and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
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. Unless otherwise agreed to in writing by BWS, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Client shall unconditionally ratify any actions taken by BWS under clauses 14.1 to 14.5.
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.
Security and Charge
1. In consideration of BWS agreeing to supply the Goods, 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).
2. The Client indemnifies BWS from and against all BWS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BWS’ rights under this clause.
3. The Client irrevocably appoints BWS and each director of BWS 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.
Defects
1. The Client shall inspect the Goods on Delivery and shall within twelve (12) days of Delivery (time being of the essence) notify BWS of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford BWS an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which BWS has agreed in writing that the Client is entitled to reject, BWS’ liability is limited to either (at BWS’ discretion) replacing the Goods or repairing the Goods.
2. Goods will not be accepted for return other than in accordance with 16.1 above:
3. Subject to clause 16.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.
Warranty
1. Subject to the conditions of warranty set out in clause 17.2 BWS warrants that if any defect in any workmanship of BWS becomes apparent and is reported to BWS within twelve (12) months of the date of Delivery (time being of the essence) then BWS will either (at BWS’ sole discretion) replace or remedy the workmanship.
2. The conditions applicable to the warranty given by clause 17.1 are:
  1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
    1. failure on the part of the Client to properly maintain any Goods; or
    2. failure on the part of the Client to follow any instructions or guidelines provided by BWS; or
    3. any use of any Goods otherwise than for any application specified on a quote or order form; or
    4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
    5. fair wear and tear, any accident or act of God.
  2. the warranty shall cease and BWS shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without BWS’ consent.
  3. in respect of all claims BWS 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.
3. For Goods not manufactured by BWS, the warranty shall be the current warranty provided by the manufacturer of the Goods. BWS 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.
Consumer Guarantees Act 1993
1. If the Client is acquiring Goods 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 Goods by BWS to the Client.
Intellectual Property
1. Where BWS has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of BWS. Under no circumstances may such designs, drawings and documents be used without the express written approval of BWS.
2. The Client warrants that all designs, specifications or instructions given to BWS will not cause BWS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BWS against any action taken by a third party against BWS in respect of any such infringement.
3. The Client agrees that BWS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which BWS has created for the Client.
Default and Consequences of Default
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 BWS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes BWS any money the Client shall indemnify BWS from and against all costs and disbursements incurred by BWS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BWS’ collection agency costs, and bank dishonour fees).
3. Further to any other rights or remedies BWS may have under this Contract, if a Client has made payment to BWS, 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 BWS 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.
4. Without prejudice to BWS’ other remedies at law BWS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BWS shall, whether or not due for payment, become immediately payable if:
  1. any money payable to BWS becomes overdue, or in BWS’ opinion the Client will be unable to make a payment when it falls due;
  2. the Client has exceeded any applicable credit limit provided by BWS;
  3. the Client 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
  4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
1. Without prejudice to any other rights or remedies BWS 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 BWS may suspend the Services immediately. BWS will not be liable to the Client for any loss or damage the Client suffers because BWS has exercised its rights under this clause.
2. BWS 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 Client. On giving such notice BWS shall repay to the Client any money paid by the Client for the Goods. BWS shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. In the event that the Client cancels Delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by BWS as a direct result of the cancellation (including, but not limited to, any loss of profits).
4. Cancellation of orders for Goods 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.
Privacy Policy
1. All emails, documents, images or other recorded information held or used by BWS is Personal Information as defined and referred to in clause 22.3 and therefore considered confidential. BWS 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” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). BWS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by BWS that may result in serious harm to the Client, BWS 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.
2. Notwithstanding clause 22.1, privacy limitations will extend to BWS in respect of Cookies where transactions for purchases/orders transpire directly from BWS’ website. BWS 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:
  1. IP address, browser, email client type and other similar details;
  2. tracking website usage and traffic; and
  3. reports are available to BWS when BWS sends an email to the Client, so BWS may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, 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 proceeding with a purchase/order via BWS’ website.

1. The Client authorises BWS or BWS’ agent to:
  1. access, collect, retain and use any information about the Client;
    1. (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
    2. for the purpose of marketing products and services to the Client.
  2. disclose information about the Client, whether collected by BWS from the Client directly or obtained by BWS 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.
2. Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 1993.
3. The Client shall have the right to request BWS for a copy of the Personal Information about the Client retained by BWS and the right to request BWS to correct any incorrect Personal Information about the Client held by BWS.
Suspension of Services
1. Where the Contract is subject to the Construction Contracts Act 2002, the Client hereby expressly acknowledges that:
  1. BWS 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:
    1. 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
    2. 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
    3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to BWS by a particular date; and
    4. BWS has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction Contract.
  2. if BWS suspends work, it:
    1. is not in breach of Contract; and
    2. 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
    3. is entitled to an extension of time to complete the Contract; and
    4. 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.
  3. if BWS exercises the right to suspend work, the exercise of that right does not:
    1. affect any rights that would otherwise have been available to BWS under the Contract and Commercial Law Act 2017; or
    2. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of BWS suspending work under this provision;
  4. due to any act or omission by the Client, the Client effectively precludes BWS from continuing the Services or performing or complying with BWS’ obligations under this Contract, then without prejudice to BWS’ other rights and remedies, BWS may suspend the Services 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 Services is based. All costs and expenses incurred by BWS as a result of such suspension and recommencement shall be payable by the Client as if they were a variation.
2. If pursuant to any right conferred by this Contract, BWS suspends the Services and the default that led to that suspension continues un-remedied subject to clause 21.1 for at least ten (10) working days, BWS shall be entitled to terminate the Contract, in accordance with clause 21.
Trusts
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 BWS may have notice of the Trust, the Client covenants with BWS as follows:
  1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
  2. 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;
  3. the Client will not without consent in writing of BWS (BWS will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    1. the removal, replacement or retirement of the Client as trustee of the Trust;
    2. any alteration to or variation of the terms of the Trust;
    3. any advancement or distribution of capital of the Trust; or
    4. any resettlement of the trust property.
General
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 the Construction Contracts Act 2002 and/or by arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
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.
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 courts of Christchurch, New Zealand.
4. BWS 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 BWS of these terms and conditions (alternatively BWS’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
5. BWS may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
6. The Client cannot licence or assign without the written approval of BWS.
7. BWS 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 Client agrees and understands that they have no authority to give any instruction to any of BWS’ sub-contractors without the authority of BWS.
8. The Client agrees that BWS 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 BWS to provide Goods to the Client.
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.
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.